The Issue Whether Respondent is guilty of violating Sections 458.331(1)(c), (j), (t), and (x), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Respondent, Jeffrey L. Katzell, M.D. (Dr. Katzell), is and has been at all material times to this proceeding a physician, licensed in the State of Florida by the Petitioner, Agency for Health Care Administration (AHCA). Dr. Katzell was issued license number ME 0050379. Dr. Katzell is a board certified orthopedic surgeon. He entered the private practice of orthopedic surgery in Palm Beach County in 1987. Prior to the allegations which are the subject of this proceeding, Dr. Katzell has never been the subject of a medical malpractice complaint or any form of disciplinary action by the Board of Medicine in any state. PATIENT T.B. T.B. is the female patient referred to in Counts 1-3 of DOAH Case No. 93-7122, DPR Case No. 92-3917. From December 12, 1991, through February 6, 1992, Dr. Katzell treated T.B. who was at that time 24 years old. Her chief complaints were of pain in her back, neck, wrist and chest as a result of trying to catch herself from falling while walking down some stairs. She complained of chest pain that felt like a band around her chest. She had pain when breathing. On the December 12, 1991, visit, a female medical assistant asked T.B. to disrobe and put on an examining gown which opened down the back. T.B. wore her panties under the gown and no bra. Dr. Katzell examined T.B. in the presence of a female medical assistant. As part of his examination, he palpated T.B.'s sternum and examined her ribs by placing his left hand through the armhole of the examining gown and his right hand on her back. Dr. Katzell moved the fingers of his left hand in different locations on her chest and asked T.B. if it hurt in those areas. During the examination, the palm of Dr. Katzell's hand touched the nipple of T.B.'s breast. It is possible for a physician to examine a female patient's sternum and ribs without touching her nipples but it is also possible that a physician could accidently touch the nipple of the breast while performing such an examination. It was appropriate for Dr. Katzell to examine T.B.'s sternum and ribs, given the nature of her complaints. It was not below the standard of care nor does it constitute sexual activity or sexual misconduct for an orthopedic surgeon to have physical contact with the breast in the manner described by T.B. during the course of performing an examination of the chest. On January 23, 1992, T.B. returned to Dr. Katzell for a follow-up examination. She was complaining of pain in the area of the left sciatic joint which is located in the buttock. For the examination she was wearing a T-Shirt, panties, and a bra underneath the examining gown. Dr. Katzell asked her to remove her panties so that he could give her a cortisone shot in her buttock. She removed her panties. Dr. Katzell gave her an injection of cortisone in her buttock while she lay face down on the examining table. He left the room for a short period of time. When he returned, he rubbed the medication in to diffuse the medicine. Then he asked her to turn over and he began to manipulate her legs to see if the shot had worked. The examination includes flexing and extending the legs, as well as abduction (spread eagle) and adduction (legs crossed). T.B. did not have any panties on while he was putting her legs in different positions and her genital area was exposed. It was appropriate for Dr. Katzell to check T.B.'s range of motion, but it was inappropriate for him to perform the examination while the lower half of her body, including her genitalia were exposed. To have performed the range of motion test while the patient's genitalia was exposed was below the level of care, skill, and treatment which is recognized by a reasonably prudent physician as being acceptable under similar conditions and circumstances. On February 6, 1992, T.B. returned for a follow up visit, continuing to complain of low back pain related to the sciatic joint. Again T.B. was asked to disrobe and put on an examining gown. She wore two tank tops, a bra, and panties underneath the examining gown. Dr. Katzell asked her to remove her panties so that he could give her another cortisone shot. She removed her panties. Another man was present when Dr. Katzell gave T.B. the injection. The man and Dr. Katzell left the examining room after the injection was administered. Dr. Katzell returned a short time later and told T.B. that he probably needed to manipulate the shot into the buttock. He opened the back of her gown and started to rub her buttock with both hands. Cortisone is a non-absorbable medication. The standard of care for orthopedic surgery recognizes that it is helpful and appropriate to massage the area of the injection to diffuse the medication. After Dr. Katzell massaged T.B.'s buttocks, he took his right hand and pulled her leg open. Dr. Katzell then made a sweeping motion with his hand from her vagina to her rectum. T.B. jumped to the side and pulled the gown closed. She asked him why he was giving her a shot in the buttock when it was her hip that hurt. Dr. Katzell told her that if she did not like it that she could come back for more. T.B. started to cry. The touching of T.B.'s genitalia from her vagina to her rectum was inappropriate and was below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The touching was sexual misconduct in that the touching was a violation of the patient-physician relationship through which Dr. Katzell intentionally touched the vagina of T.B. and such touching was outside the scope of generally accepted treatment and examination of the patient. T.B. left Dr. Katzell's office and went to her workers' compensation attorney complaining of her treatment from the doctor. T.B. told her husband what had happened and they called the police. As a result of the above-described events T.B. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was filed against Dr. Katzell bearing Case No. 92-28364-MMA02. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of T.B. and the Court adjudicated Dr. Katzell guilty. T.B. has filed a civil action for monetary damages against Dr. Katzell. PATIENT A.F. A.F. is the female patient referred to in Counts 4-6 of the Administrative Complaint in DOAH Case No. 93-7122, DPR Case No. 92-3917. A.F. was involved in a head on automobile accident on August 30, 1991. At that time she was 30 years old. After the accident she was treated by Dr. Michael Nathanson, a chiropractor. He referred her to Dr. Katzell for a complete orthopedic examination. Dr. Katzell first saw A.F. on October 9, 1991. She was complaining of pain in her sternum, sciatic pain, neck pain, and pain in the middle and low portion of her back. A.F. told Dr. Katzell that she had severe pain in sternum but that she did not have any bruises on her breasts. Her chiropractor had advised her that she had cracked two ribs. During Dr. Katzell's first examination of A.F. no other persons were present in the room. A.F. was wearing an examining gown, panties, and a bra. While A.F. was standing, Dr. Katzell pulled down her examining gown and removed her bra straps from her shoulder, exposing her sternum and breasts. She tried to pull the gown back up but he pushed it back down. Given the nature of A.F.'s complaints relating to her sternum and ribs, it was appropriate for Dr. Katzell to examine the sternum, to palpate the costochondral junction where the ribs meet the sternum, and to palpate the ribs. Dr. Katzell palpated the ribs and the costochondral junction during his examination. While he was examining her, his fingers did come in contact with A.F.'s breasts. The standard of care is not violated when a physician's hand comes in contact with the breast during an examination of the anterior chest such as was performed by Dr. Katzell. By touching A.F.'s breasts, Dr. Katzell did not engage in sexual activity. After her visit with Dr. Katzell, A.F. told Dr. Nathanson that she did not think that Dr. Katzell's examination had been appropriate. On October 29, 1991, A.F. returned to Dr. Katzell for a follow-up visit. She was complaining of hip pain and sciatic pain, with a pain in the crease of her leg where the elastic of her panties would be. She put on the examining robe and left on her panties and bra. No attendant was present during the examination. A.F. was standing while Dr. Katzell was examining her. He put his thumbs underneath her panties and palpated the inguinal crease (where the elastic of the panties would be located). As he was examining her, he put his right thumb in the crease in the vaginal area across her clitoris and went down underneath in the vaginal area. She told him that it did not hurt there and he went back up across the same area. Dr. Katzell's touching of A.F.'s clitoris and her vaginal area was unjustified and inappropriate. The touching was below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar circumstances. The touching was also sexual misconduct. On November 11, 1991, A.F. returned to see Dr. Katzell for the results of her MRI test. Dr. Katzell asked her twice to put on the examining robe but she refused to do so. A.F. called Petitioner and filed a complaint against Dr. Katzell. Later A.F. instituted a civil action against Dr. Katzell. Additionally, as a result of the above-described events A.F. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was filed against Dr. Katzell bearing case number 92-28366- MMA02. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of A.F. and the Court adjudicated the Respondent guilty. PATIENT BB Patient B.B. is the female patient referred to in Counts 7-9 of the Administrative Complaint in DOAH Case No. 93-7122 and DPR Case No. 92-3917. B.B. was a nurse in a hospital where Dr. Katzell performed surgery. In the summer of 1990, she began experiencing pain in her left hip, radiating to her left knee and foot and causing her to limp. Dr. Katzell noticed her limp and told her that a cortisone shot could help. She agreed to the injection. They went to the cast room in the emergency room of the hospital. Dr. Katzell asked her to put on an examining gown while he stepped out of the room. She complied. Dr. Katzell gave B.B. an injection and told her that it was not necessary for him to see her in his office. He did not charge B.B. for the treatment. It is not unusual for physicians to perform courtesy examinations for the nurses. B.B. experienced some minimal relief, but the pain returned in a couple of weeks. Dr. Katzell suggested another injection. They went to the cast room where the first examination had taken place. On the way to the cast room, B.B. told Dr. Katzell that she was also experiencing pain in her tailbone that resulted from an accident she had while giving childbirth years before. He told her that he would need to do a vaginal examination to determine where to place the shot in her tailbone. He performed a vaginal examination by inserting his fingers into her vagina. He did not perform a rectal examination. No one else was present during Dr. Katzell's examination of B.B. Vaginal examinations are not used in the diagnosis or treatment of back pain, coccydynia (pain in the tailbone) or to locate a favorable injection site for the treatment of these conditions. The giving of the vaginal examination fell below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The vaginal examination also constituted sexual misconduct. B.B. wrote a letter to Petitioner concerning Dr. Katzell's examination but she was not specific about the nature of the complaint. She was later contacted by one of Petitioner's investigators. As a result of the above-described events B.B. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was filed against Dr. Katzell bearing case number, 92-12233-CF. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of B.B. and the Court adjudicated Dr. Katzell guilty. PATIENT D.B. Patient D.B. is the female patient referred to in Counts 1-3 of the Administrative Complaint in DOAH Case No. 93-7123 and DPR Case No. 92-14422. D.B. first saw Dr. Katzell on May 16, 1991. She was complaining of instability with her left knee. At the time she was 24 years old. D.B. had had a patella tendon anterior cruciate ligament reconstruction in 1986. She saw Dr. Katzell again on June 13, 1991 and July 9, 1991. Dr. Katzell recommended arthroscopic anterior cruciate ligament reconstruction on her left knee because of a rupture of the anterior cruciate ligament. On July 15, 1991, D.B. was admitted to J.F.K. Medical Center, where Dr. Katzell performed surgery on her left knee. After the surgery, D.B.'s left leg was bandaged from the groin area to half way down her calf. On one of his hospital post-operative visits, Dr. Katzell came to check D.B.'s dressing. D.B. was wearing a hospital gown and no underpants, her left leg was in the air in a continuous motion machine, and she was on a bedpan when Dr. Katzell came into her room. While Dr. Katzell was checking her dressings, he rubbed his hand down her crotch. There was no medical necessity for rubbing across the crotch area of D.B. when Dr. Katzell changed her dressing while she was in the hospital. D.B., who was accompanied by her mother, saw Dr. Katzell in his office on July 26, 1991. He removed the staples. D.B. next saw Dr. Katzell on August 16, 1991. She put on an examination gown and kept on her T-shirt, bra, and panties underneath the gown. Dr. Katzell performed a range of motion test, which required D.B. to lie on the examining table, bend the leg at the knee while the leg was raised in the air, and gradually lower the leg. During the examination, Dr. Katzell placed his hand between her legs and slid it down the middle of the vaginal area from top to bottom. Dr. Katzell next saw D.B. in his office on September 13, 1991. D.B. was dressed in an examination gown with a shirt, panties and bra underneath the gown. Dr. Katzell performed another range of motion test and again touched her in her vaginal area, down the middle of her crotch from top to bottom. On October 11, 18, November 19, and December 19, 1991, D.B. returned for follow-up visits. On each visit, D.B. removed her shorts and put on an examination gown. During each visit Dr. Katzell measured her leg near the groin area for atrophy as she stood up with her back to him as he was sitting on a stool. While he was measuring during each visit, he briefly rubbed his hand between her legs in her crotch. On January 17, 1992, D.B. went to see Dr. Katzell at his office. She was wearing bike shorts and a sweater. She had intentionally worn bike shorts because she felt that the doctor could measure over the shorts and there would be no necessity for removing her shorts. The bike shorts had a built-in pantie so D.B. did not wear any additional underpants. Dr. Katzell asked her to remove the bike shorts and the sweater and put on a gown, explaining that he could not measure over the spandex of the bike shorts. It would not have been medically appropriate to measure the leg over the spandex because the bike shorts compress the muscles of the upper leg. D.B. removed her shorts and sweater and put on the gown, which left her wearing only the gown and a bra. Dr. Katzell performed a range of motion test and measured her leg for atrophy. When he was measuring her leg, he touched her in her vaginal area as he had done previously. There was no medical necessity that required Dr. Katzell to touch D.B. in her vaginal area while he was performing range of motion tests and measuring her leg for atrophy. The touching of D.B. in her crotch while she was in the hospital and during her subsequent office visits was inappropriate and fell below the level of care, skill, and treatment which is recognized by a reasonable prudent similar physician as being acceptable under similar conditions and circumstances. The touching also constituted sexual misconduct. As a result of the above-described events, D.B. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was filed against Dr. Katzell bearing Case No. 92-28362-MMA02. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of D.B. and the Court adjudicated Dr. Katzell guilty. D.B. has made a civil claim against Dr. Katzell related to the above- described incidents. PATIENT T.C. Patient T.C. is the female patient referred to in Counts 4-6 of the Administrative Complaint, DOAH Case No. 93-7123 and DPR Case No. 92-14422. Dr. Katzell treated T.C. for chronic knee derangement from December 4, 1987 to November 18, 1991. During that time, he operated on her knee two times for internal derangement of the knee. On March 12, 1991, T.C. went to Dr. Katzell complaining of pain and swelling in her right knee. She also had right sided low back pain radiating into her right hip. Dr. Katzell examined her right hip and palpated the area in the inguinal crease. He moved her underpants to one side, exposing her vagina while he was palpating the inguinal crease. Dr. Katzell did not touch the vagina during the examination. Depending on the cut of T.C.'s underwear it may have been necessary to move her underwear to one side in order to palpate the inguinal crease. Dr. Katzell's actions on March 12, 1991, did not constitute sexual misconduct nor was it below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. On November 18, 1991, T.C. went to Dr. Katzell's office for a follow- up visit, complaining of continued pain in her right knee. Dr. Katzell asked her to disrobe and put on an examination gown. She complied, leaving on her underwear. During the examination of her knee, Dr. Katzell began to rub T.C. above her knee and on the inside of her right thigh. He touched her vaginal area over her underwear with his fingers. She moved forward when he touched her and he removed his hand. There was no medical necessity to touch the vaginal area of a patient during the examination of a knee. The touching of T.C.'s genitalia during the knee examination was inappropriate and was below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The touching also constitutes sexual misconduct. Following the knee examination of November 18, 1991, T.C. immediately left Dr. Katzell's office and never returned. As a result of the above-described incident, T.C. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was filed against Dr. Katzell bearing Case No. 92-28365-MMA02. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of T.C. and the Court adjudicated the Respondent guilty. T.C. has filed a lawsuit against Dr. Katzell seeking monetary damages. PATIENT S.M. Patient S.M. is the female patient referred to in Counts 7-9 of the Administrative Complaint, DOAH Case No. 93-7123 and DPR Case No. 92-14422. On July 22, 1991, S.M. went to see Dr. Katzell for an independent medical evaluation relating to a slip and fall at her workplace. S.M. was complaining of upper and lower back pain, bilateral hip pain, mild knee pain and some right shoulder discomfort. S.M. was given an examination gown to wear. She put on the gown, leaving on her slip, bra and g-string panties. Dr. Katzell began to examine her and told her she would have to remove her slip. He left the room while she did so. There was no attendant in the room during the examination. She lay on the examining table and he stretched her legs at 90 degree angles. He had his hand underneath the gown, between her legs and on top of her vagina. He would rub the crease area between S.M.'s thigh and pubic area and move his hand across the vaginal area as he went from one to side to the other. There was no medical purpose for Dr. Katzell to touch S.M.'s vaginal area during his examination. The touching was below the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions. The touching also constituted sexual misconduct. As a result of the above-described incident, S.M. filed a complaint with the State Attorney of Palm Beach County, Florida, upon which a criminal information was filed against Dr. Katzell bearing Case No. 92-28362-MMA02. On January 19, 1993, Dr. Katzell entered a plea of nolo contendere to the charge of battery on the person of S.M. and the Court adjudicated him guilty. S.M. has filed a civil action against Dr. Katzell for monetary damages. MITIGATION In 1992, after the complaints surfaced concerning the above-referenced patients, Dr. Katzell voluntarily stopped his practice and sought help through the Physicians Recovery Network (PRN). He entered into a five-year supervisory contract with PRN and was participating in the contract at the date of the hearing. He agrees to remain under contract with PRN as long as necessary to demonstrate that he is safely practicing medicine. Dr. Katzell was in good standing with his agreement with PRN and had no reported problems as of the date of the final hearing. PRN referred Dr. Katzell to the Behavior Medicine Institute in Atlanta, Georgia, where he underwent an out-patient cognitive behavior type of treatment for sexual problems. The treatment program is headed by Dr. Gene Abel. The recidivism rate for physicians treated in Dr. Abel's program is 0 percent. As a result of the charges made by the six patients, Dr. Katzell has made changes in his orthopedic practice. These changes in methods include always examining a female patient in the presence of a chaperon or attendant and explaining to the patient the need for any examinations which could be perceived as being in close proximity to a private area. When patients are to receive a cortisone injection, his female office staff will drape the area outside the presence of Dr. Katzell and he will return simply to administer the injection in the presence of his attendant. The medication will be massaged into place by a female attendant and not by Dr. Katzell. There have been no complaints in the three years since Dr. Katzell has made these changes in his orthopedic practice. Over twenty witnesses testified at the final hearing concerning Dr. Katzell's practice of medicine since the incidents involving the six female patients. The witnesses found that in their dealings with Dr. Katzell they found him to be a capable, professional and caring physician. Dr. Katzell was interviewed, tested, and evaluated by two forensic psychologists, Theodore Blau, Ph.D. and Florence Kaslow, Ph.D. Based on their evaluations, it is their opinion that Dr. Katzell can safely practice medicine in the future and that Dr. Katzell's fear of loss of the ability to practice medicine in the future is so overwhelming that he will not be expected to exceed the boundaries of acceptable behavior that the law or ethics require of him as a physician. The evidence did not establish that the six patients suffered any physical or severe permanent psychological harm. On the advice of counsel, Dr. Katzell entered pleas of nolo contendere to battery on the six patients. When he did so it was his understanding that would not have any significant impact with regard with his license to practice medicine. In order to get the State Attorney to agree to a plea agreement, Dr. Katzell opted to forego the taking of any depositions in the criminal case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Jeffrey L. Katzell, M.D., violated Section 458.331(1)(c), Florida Statutes, in Counts 1, 2, 3, 4, 5, and 6 of the Administrative Complaint in DOAH Case No. 93-7124, dismissing Count 7 of the Administrative Complaint in DOAH Case No. 93-7124, finding that Jeffrey L. Katzell, M.D. violated Section 458.331(1)(t), Florida Statutes in Counts 3, 6, and 9 in the Administrative Complaint filed in DOAH Case No. 93- 7122 and in the Administrative Complaint filed in DOAH Case No. 93-7123, finding that Jeffrey L. Katzell, M.D. violated Section 458.331(1)(x) by violating Section 458.329, Florida Statutes, in Counts 2, 5, and 8 of the Administrative Complaint in DOAH Case No. 93-7122 and Counts 1, 4, and 7 of the Administrative Complaint in DOAH Case No. 93-7123, dismissing Counts 1, 4, and 7 of the Administrative Complaint in DOAH Case No. 93-7122 and Counts 2, 5, and 8 of the Administrative Complaint in DOAH Case No. 93-7123 as not providing a separate ground for disciplinary action given the findings that Dr. Katzell violated Section 458.329 and thus, Section 458.331(1)(x), Florida Statutes. It is recommended that the following penalty be imposed: Suspension of the license of Dr. Katzell for six months; Imposition of an administrative fine of $2,000 for each violation for a total of $36,000; Five years probation following the suspension of the license; All examinations of female patients by Dr. Katzell be made in the presence of a female chaperon, and this shall be a permanent requirement of his medical license; and Dr. Katzell is to remain under a supervisory contract with the Physician Recovery Network until the conclusion of his probationary period. DONE AND ENTERED this 19th day of May, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NOs. 93-7122, 93-7123, and 93-7124 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-10: Accepted in substance. Paragraph 10 (there were two paragraphs numbered 10): Accepted in substance. Paragraphs 11-24: Accepted in substance. Paragraph 25: Rejected as not supported by clear and convincing evidence. Paragraphs 26-27: Rejected as unnecessary because incidents related to the December 30 visit were not alleged in the Administrative Complaint. Paragraph 28: Accepted in substance except that the undergarment that Dr. Katzell asked her to remove was her panties. Paragraphs 29-37: Accepted in substance. Paragraph 38: Accepted in substance except as to the date on which he began treatment for chronic knee derangement. Paragraphs 39-54: Accepted in substance. Paragraph 55: Rejected as irrelevant. Paragraph 56: Rejected as not supported by clear and convincing evidence. Paragraphs 57-65: Accepted in substance. Paragraph 66: Accepted in substance except that in relation to the criminal information pertaining to A.F., Dr. Katzell entered a plea of nolo contendere to battery on the person of A.F. not T.B. Paragraphs 67-70: Accepted in substance. Paragraph 71: Rejected because the allegations were not part of the Administrative Complaint Paragraphs 72-77: Accepted in substance. Paragraphs 78: Rejected because the allegation was not part of the Administrative Complaint. Paragraphs 79-81: Accepted in substance. Respondent's Proposed Findings of Fact Paragraph 1: The first two sentences are accepted in substance. The last sentence is rejected as unnecessary. Paragraph 2: The first sentence and the first half of the second sentence are rejected as unnecessary. The remainder is accepted in substance. Paragraph 3: Accepted in substance. Paragraph 4: Rejected as unnecessary detail. Paragraphs 5-7: Rejected as unnecessary detail. Paragraphs 8-11: Rejected as subordinate to the findings that were actually made. Paragraphs 12-15: Rejected as unnecessary detail. Paragraph 16: Rejected to the extent that it implies that all of Dr. Katzell's actions were in compliance with the orthopedic standard of care. Accepted in substance to the extent that the medical records alone do not show the violations charged in the administrative complaints. Paragraphs 17-18: Accepted in substance. Paragraph 19: The first sentence is rejected to the extent that the patient indicated that she had fallen. She indicated that she caught herself from falling as she was walking down the stairs. The remainder is accepted in substance. Paragraphs 20-24: Accepted in substance. Paragraphs 25-26: Rejected as unnecessary. Paragraphs 27-30: Accepted in substance. Paragraphs 31-37: Rejected as unnecessary because the actions of Dr. Katzell during the December 30 visit were not alleged in the Administrative Complaint. Paragraph 38-39: Accepted in substance. Paragraph 40: Rejected as unnecessary detail. Paragraphs 41-42: Accepted in substance. Paragraphs 43-44: Rejected as unnecessary detail. Paragraph 45: The first two sentences are rejected as unnecessary detail. The last sentence is accepted in substance. Paragraphs 46-48: Accepted in substance. Paragraph 49: The first sentence is rejected as constituting argument. The second sentence is rejected as unnecessary detail. Paragraph 50: The portion of the sentence dealing with sexual activity is accepted in substance as it relates to the January 23 visit but the portion dealing with practice below the standard of care is rejected as not supported by the evidence. Paragraphs 51-53: Accepted in substance. Paragraph 54: Rejected as unnecessary detail. Paragraph 55: The first and third sentences are accepted in substance. The second sentence is rejected as unnecessary detail. Paragraphs 56-58: Accepted in substance. Paragraph 59: Rejected as constituting argument. Paragraph 60: Rejected as irrelevant. The inappropriate touching of the vagina is sexual activity and it is irrelevant whether they talked about sexual topics or whether either person was sexually aroused by it. Paragraph 61: The first sentence is accepted in substance. The second sentence is rejected as constituting argument. Paragraph 62: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. Paragraph 63: The first sentence is rejected as not supported by the evidence. Having judged the credibility of the witnesses, the second sentence is rejected. Paragraphs 64-71: Accepted in substance. Paragraph 72: Rejected as unnecessary. Paragraph 73: The first sentence is accepted in substance. The second sentence is rejected as unnecessary detail. Paragraphs 74-75: Rejected as subordinate to the facts found. Paragraphs 76-78: Accepted in substance. Paragraph 79: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. Paragraphs 80-85: Rejected as unnecessary because the Administrative Complaint does not contain allegations related to this portion of the October 9 visit. Paragraphs 86-87: Accepted in substance. Paragraph 88: Rejected as unnecessary detail. Paragraph 89: Accepted in substance. Paragraph 90: Rejected as unnecessary detail. Paragraph 91: The first half of the sentence is rejected as unnecessary detail. The last half of the sentence is accepted in substance. Paragraph 92: Rejected to the extent that it implies that Dr. Katzell did not touch A.F.'s clitoris and her vaginal area. Paragraphs 93-95: Rejected as irrelevant because it was the touching of the clitoris and the vaginal area which was at issue not the palpating of inguinal crease or the touching of the pubic bone. Paragraph 96: The first sentence is accepted in substance. The second sentence is rejected as irrelevant since the complained touching was not in close proximity but was in the vagina. Paragraph 97: Rejected as irrelevant. Paragraph 98: Rejected as constituting argument. Paragraph 99: Accepted in substance. Paragraph 100: Having judged the credibility of the witnesses, this paragraph is rejected. Paragraph 101: Rejected as not supported by the evidence. If the clitoris is covered by the labia, it is uncovered when a person sticks his thumb in the vaginal crease and runs his thumb down the crease and back up again. Paragraph 102: The first sentence is rejected as not supported by the evidence. The last sentence is rejected as irrelevant. Paragraphs 103: Rejected as irrelevant. Paragraph 104: Accepted in substance. Paragraphs 105-107: Rejected as irrelevant. Paragraph 108: Rejected as constituting argument. Paragraph 109: Accepted in substance. Paragraph 110: Rejected as not supported by the evidence. Paragraphs 111-115: Accepted in substance. Paragraphs 116-122: Rejected as unnecessary because the Administrative Complaint does not contain allegations concerning the touching of B.B.'s breasts. Paragraphs 123-127: Accepted in substance. Paragraphs 128: Rejected as unnecessary detail. Paragraphs 129-131: Rejected as irrelevant since the finding is that a vaginal examination was performed. Paragraph 132: Rejected as constituting argument and subordinate to the finding that Dr. Katzell did perform a vaginal examination. Paragraph 133: Rejected as unnecessary detail. Paragraph 134: Rejected as subordinate to the finding that he did perform a vaginal examination. Paragraph 135: Rejected as irrelevant as to whether she felt that he was engaging in sexual activity. Paragraph 136: Rejected as not supported by the greater weight of the evidence that the pressure that B.B. felt was consistent with a rectal examination. Paragraphs 137-138: Rejected as subordinate to the facts actually found. Dr. Koulisis's statement corroborated B.B.'s testimony that a vaginal examination was performed. Paragraph 139: Rejecting as constituting argument. Paragraph 140: Rejected as irrelevant. Paragraph 141: Rejected as constituting argument. Paragraph 142: Accepted in substance. Paragraphs 143-144: Rejected as irrelevant. There was no showing that Dr. Katzell was prejudiced by the loss of the letter. Paragraph 145: Accepted in substance. Paragraph 146: The first and third sentences are accepted in substance. The remainder is rejected as unnecessary detail. Paragraph 147: The first and last sentences are accepted in substance. The second sentence is rejected as unnecessary detail. Paragraph 148: Rejected as unnecessary detail. Paragraph 149: Accepted in substance. Paragraph 150: The first sentence is accepted in substance. The remainder is rejected as unnecessary detail. Paragraphs 151-153: Rejected as constituting argument and subordinate to the facts actually found. Dr. Katzell did see D.B. in the hospital on at least one occasion and he did touch her in her vaginal area during that examination. Paragraphs 154-155: Accepted in substance. Paragraphs 156-157: Rejected as irrelevant. The inappropriate behavior was not touching near the crotch area but the touching of the crotch. Paragraphs 158-159: Rejected as not supported by the evidence. Paragraph 160: Rejected as irrelevant. Paragraph 161: Rejected as subordinate to the finding that there was a touching. Paragraphs 162-164: Accepted in substance. Paragraphs 165-166: Rejected as irrelevant. Paragraph 167: Rejected as it refers to the last visit, otherwise accepted in substance. Paragraphs 168-172: Rejected as subordinate to the finding that there was a touching in the crotch area. Paragraph 173-175: Accepted in substance. Paragraph 176: Accepted. Paragraphs 177-179: Rejected as subordinate to the facts actually found that there was a touching in the vaginal area. Paragraph 180: Accepted in substance. Paragraphs 181-182: Rejected as subordinate to the finding that there was a touching in the vaginal area. Paragraph 183: Rejected as unnecessary. Paragraph 184: The first sentence is rejected as unnecessary. The sentence is rejected as constituting argument and as not supported by the evidence. Both women indicated that D.B. did not go into specifics and the sister-in-law testified that D.B. did not like the way that he had examined her and touched her legs. Paragraph 185: Rejected as not supported by the evidence. There was testimony that D.B. advised her husband. Paragraph 186: Rejected as irrelevant. Paragraphs 187-188: Rejected as subordinate to the finding that there were inappropriate touchings of the vagina. Paragraph 189: Accepted in substance. Paragraph 190: Having judged the credibility of the witnesses, it is rejected. Paragraph 191: Rejected as not supported by the evidence. Paragraphs 192-195: Accepted in substance. Paragraphs 196-199: Rejected as unnecessary detail. Paragraphs 200-203: Accepted in substance. Paragraphs 204-205: Rejected as irrelevant. Paragraphs 206: Accepted in substance. Paragraph 207: Accepted that Dr. Katzell moved the underwear, but rejected as irrelevant as to whether he remembers exposing the vagina. Paragraph 208: Accepted in substance. Paragraph 209: Rejected as unnecessary detail. Paragraph 210: The first sentence is accepted in substance. The remainder is rejected as unnecessary detail. Paragraphs 211-212: Rejected as unnecessary detail. Paragraphs 213: Rejected as subordinate to the finding that he touched the vagina. Paragraph 214-216: Rejected as subordinate to the fact that he touched the vagina. Paragraph 217: Accepted in substance. Paragraph 218: Rejected as not supported by the evidence. Paragraphs 219-220: Accepted in substance. Paragraphs 221-222: Rejected as unnecessary detail. Paragraph 223: Accepted in substance. Paragraph 224: The first sentence is rejected as unnecessary detail. The last sentence is accepted in substance. Paragraph 225: Accepted in substance. Paragraph 226-228: Rejected as unnecessary detail. Paragraph 229-231: Accepted in substance. Paragraphs 232: Rejected as irrelevant. Paragraph 233: Rejected as subordinate to the finding that there was a touching of the vaginal area. Paragraph 234: The first sentence is accepted in substance. The remainder is rejected as subordinate to the finding that there was a touching of the vaginal area. Paragraphs 235-236: Rejected as subordinate to the finding that there was a touching of the vaginal area. Paragraph 237: Accepted in substance. Paragraph 238: Rejected as irrelevant. Paragraph 239: Rejected to the extent that it implies that Dr. Katzell did not touch the vaginal area, but otherwise accepted in substance. Paragraph 240: Accepted in substance to the extent that it refers to the actions described in Paragraph 239 of Respondent's Findings of Fact. Paragraph 241: Rejected as subordinate to the finding that Dr. Katzell touched S.M.'s vaginal area. Paragraphs 242-245: Rejected as irrelevant. Paragraph 246: Rejected as constituting argument. Paragraphs 247: Accepted in substance. Paragraph 248: Rejected as constituting argument. Paragraph 249: Rejected as not supported by the evidence. Paragraph 250: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. Paragraph 251: Accepted in substance. Paragraph 252-257: Rejected as unnecessary detail. Paragraph 258-261: Rejected to the extent it implies that the tests and evaluations indicate that Dr. Katzell did not commit the violations alleged in the Administrative Complaint. Paragraph 262: The first two sentences are rejected as irrelevant. The third sentence is rejected as not supported by evidence that Dr. Katzell did not engage in sexual activity with the patients. Paragraph 263: The first two sentences are rejected to the extent that it implies that Dr. Katzell did not commit the violations alleged in the administrative complaints. The last sentence is accepted in substance. Paragraph 264: Rejected to the extent that it implies that Dr. Katzell did not commit the violations alleged in the administrative complaints. Paragraph 265: Accepted in substance. Paragraph 266: Rejected as not supported by the evidence. Paragraph 267: Rejected as constituting argument. Paragraph 268: The first sentence is accepted in substance. The remainder is rejected as unnecessary detail. Paragraph 269: Accepted in substance. Paragraphs 270-271: Rejected as irrelevant since there was sufficient evidence to establish that Dr. Katzell did commit a battery on each of the six patients. In the case of D.B., he did commit a battery on her on July 17, 1991 and out of the eleven counts of battery on D.B. for which Dr. Katzell was charged there was sufficient evidence to support a charge of battery on eight of the counts. Paragraph 272-273: Rejected as irrelevant. Paragraph 274-277: Accepted in substance. Paragraph 278: Rejected as unnecessary. Paragraph 279: Accepted in substance. Paragraphs 280-282: Rejected as subordinate to the findings that committed the violations as set forth in the Findings of Fact of this Recommended Order. Paragraphs 283-287: Accepted in substance. Paragraph 288: The first sentence is accepted in substance. The second sentence is rejected as unnecessary. Paragraph 289: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. The third sentence is rejected as irrelevant. Paragraph 290: Accepted to the extent that the evidence presented established that it is not likely that Dr. Katzell is not likely to commit in the future the type of actions alleged in the Administrative Complaint. COPIES FURNISHED: Albert Peacock, Esquire Hugh R. Brown, Qualified Representative Department of Business & Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Mark A. Dresnick, Esquire Grand Bay Plaza Suite 201 2665 South Bayshore Drive Miami, Florida 33133 Dr. Marm Harris Executive Director Agency For Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Tom Wallace Assistant Director Agency For Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
The Issue This case concerns an Administrative Complaint brought by the State of Florida, Department of Professional Regulation, against Jose Antonio Benavides, It accuses the Respondent of violating Subsection 458.331(1)(t) , Florida Statutes, related to gross or repeated acts of malpractice or the failure to practice medicine in keeping with the level of care, skill and treatment Prescribed by that provision. The matter specifically relates to Dr. Benavides' treatment of the patient Beatrice Fisher.
Findings Of Fact By Administrative Complaint dated April 10, 1981, State of Florida, Department of Professional Regulation, Board of Medical Examiners, Petitioner seeks to revoke, suspend otherwise discipline Jose A. Benavides, medical doctor. As grounds, it is alleged that the Respondent inappropriately failed to diagnose carcinoma in a patient in violation of Section 458.331(1)(t) , Florida Statutes (1979) At the hearing the Petitioner presented five (5) witnesses. Further, the Petitioner introduced five (5) exhibits which were received into evidence. The Respondent testified in his own behalf and was permitted to introduce the testimony of his expert witnesses in the form of deposition. The deposition of Dr. William Espinoza was taken on August 19, 1981. The Respondent's other expert witnesses, Dr. George Dabiglus and Dr. Bienendo Benach were unavailable for their scheduled depositions on August 19, 1981. At that time the parties contacted the Hearing Officer and the Respondent requested that the matter be continued so that the depositions of Dr. Benach and Dr. Dabiglus could be taken at a later date. Counsel for the Petitioner noted her objection to a continuance. In light of the fact that these witnesses were not subpoenaed and the prejudice to the Petitioner resulting from unwarranted delay in these proceedings, the Respondent's request for a continuance was denied. The petitioner, however, stipulated that the testimony of Dr. Benach and Dr. Dabiglus would be substantially the same as that of Dr. Espinoza. Material Facts Jose A. Benavides, .D., Respondent, is licensed by the Board of Medical Examiners, Department of Professional Regulation as a medical doctor and was so licensed at all times pertinent to this case. The Respondent has engaged in family practice, obstetrics and gynecology since becoming licensed in Florida in 1975. In addition, Respondent has received special training in obstetrics, gynecology, and surgery. On August 13, 1979, the Respondent saw the patient Beatrice Fisher for the first time. Ms. Fisher had been the patient of Dr. T. Brandwein, whose practice Dr. Benavides assumed. On the occasion of the first visit, Ms. Fisher complained that she had blood in her urine and in the face of this complaint, the Respondent had an urinalysis performed, the results of which may be found in the Petitioner's Exhibit No. 1, admitted into evidence. Those results, by their general nature, were negative. At the time of this visit, no other procedures were undertaken by the Respondent to determine if the bleeding had its origin as a vaginal or rectal discharge. (Ms. Fisher was a woman in her seventies whose menopausal cycle had ceased a number of years before.) On this first visit, the patient was also concerned about not being able to sleep, and complained of back pain and swelling in her right hand. At that point the Respondent diagnosed the case as a matter of deep depression and continued the medication that had been prescribed by the prior physician. Dr. Benavides saw the patient again on August 20, 1979, and the normal urinalysis was reported. On this occasion the patient described a problem with pain when she walked or stood up. In response to this, Dr. Benavides continued the previously prescribed medication. (The medication prescribed on the August 13 and 30, 1979, visits may be found in Petitioner's Exhibit No. 2.) The patient Fisher, returned to the office of Dr. Benavides on September 4, 1979, and had as complaint, the fact that she felt tired and was concerned about getting enough rest. She was particularly concerned about her inability to sleep. At this time, Dr. Benavides prescribed medication for depression as set forth in Petitioner's Exhibit No. 2. The next office visit by Ms. Fisher to Dr. Benavides occurred on September 28, 1979. At that time, Ms. Fisher complained about vaginal bleeding. Dr. Benavides conducted a pelvic examination which revealed a bloody vagina and odorous discharge from the vaginal region. The pelvic examination in its gross terms found the vagina to be acceptable and the uterus to be small and hard. According to the patient, this discharge had been occurring for approximately two weeks. Dr. Benavides also did a pap smear. No other examination or tests were conducted at that time to ascertain the agent responsible for the bleeding. Dr. Benavides did note in the file the probability of a malignancy and recommended that the patient return to his office in a month. Although there was no discussion about malignancy with the patient, the patient told Dr. Benavides about problems with cancer in her family and the fact that her son, mother, aunt and brother had died from this disease. On this visit, Dr. Benavides found that the patient's state of depression had improved. On October 2, 1979, Ms. Fisher called Dr. Benavides to get the results of the pap smear test and she was told that he might have to conduct another pap smear test, notwithstanding negative results from the test. The next office visit with the patient occurred on October 15, 1979. At that time, the patient was still experiencing a discharge in the way of staining, or spotting. Again Dr. Benavides noted his concern about possible malignancy. He also expressed concern about infection in the vaginal area. He described this spotting as chocolate in color, and odorous. A vaginal culture was taken and the results of that culture were normal, with the exception of a moderate amount of proteus mirabilis for which he prescribed tetracycline, an antibiotic. The prescription was dated the date of the visit. The results of the vaginal culture were made known on October 18, 1979, and may be found in Petitioner's Exhibit No. 2. Dr. Benavides did not discuss the possible malignancy with the patient Fisher on the October 15, 1979, visit. Dr. Benavides was of the persuasion that the vaginal culture was indicated to rule out the malignancy; however, the testimony of experts in the field of medicine offered in the course of the hearing, shows that such a test would not rule out a malignancy in the uterus. Ms. Fisher at this visit continued to express her concern that her condition might be caused by cancer. On October 18, 1979, the patient Fisher called the Respondent and was still complaining of staining, a bloody discharge. Medication was prescribed as set forth in the Petitioner's Exhibit No. 2 and the patient was told that the results of the laboratory test performed from the vaginal culture were negative. The records of the Respondent indicate a further prescription was written for the patient on November 6, 1979, and this followed a call on that date by the patient Fisher to the Respondent in which she continued to complain about staining. On December 7, 1979, the patient Fisher returned to the doctor's office and complained of the problem with her knee and certain medications were prescribed. No further discussion was held on the subject of vaginal bleeding and no further tests were performed to ascertain the cause of that bleeding. On January 23, 1980, Ms. Fisher went to see her Opthalmologist, Dr. Robert Goldwyn. Dr. Goldwyn mentioned that he felt Ms. Fisher did not look well and there ensued discussion about the reason for her appearance, in which she described her problem with vaginal bleeding. Dr. Goldwyn immediately referred the patient to Dr. Arthur Rudolph, a specialist in obstetrics and gynecology, who was in Dr. Goldwyn's building. On January 23, 1980, Dr. Rudolph saw Ms. Fisher. Dr. Rudolph is a physician admitted to practice in the State of Florida, who has twenty-five (25) years experience. After examining the patient Fisher, he indicated to her that she needed to be hospitalized to have dilatation and curettage performed. He also performed a pap smear and found it to be Class III, that is suspicious carcinoma. On January 31, 1980, the patient Fisher was admitted to Baptist Hospital of Miami. A dilatation and curettage examination was performed revealing adenocarcinoma of the endometrium with superficial invasion. There followed a total abdominal hysterectomy and bilateral salpingo-oophorectomy. Following the operation, Dr. Rudolph finds the patient's outlook to be good. Nevertheless, it is not known whether or not the problem with carcinoma is concluded. The findings of Dr. Rudolph's proceedings may be found in Petitioner's Exhibit No. 3, admitted into evidence. Further, testimony by Dr. Rudolph establishes that there is a presumption of possible malignancy any time bleeding is observed in a post- menopausal patient whose last menstrual cycle occurred one year or more before the event of bleeding. In this instance, Ms. Fisher's last menstrual cycle had occurred some twenty (20) years before her complaints with bleeding. To determine if there is carcinoma in the uterus, Dr. Rudolph correctly indicates that suction curettage or dilatation and curettage are proper methods of detection. A pap smear would be a method of detection of carcinoma in the cervix, but not in the endometrium, as established by the expert, Dr. Rudolph. Assuming that September 28, 1979, was the first complaint of this bleeding, it was inappropriate for a month to transpire before scheduling the next appointment, as identified by Dr. Rudolph. The pap smear followed by suction curettage or dilatation and curettage should occur as soon as possible from detection of bleeding, in that there is a correlation between treatment success and time before treatment. Dr. Rudolph's testimony established that the vaginal culture was not an adequate method for determining cancer unless that cancer happened to be in the wall of the vagina. Dr. Rudolph's examination of the medicines prescribed for the patient Fisher by the Respondent, with the exception of polymax with which Dr. Rudolph was not familiar, established that those other medicines were not valid in the detection of carcinoma. Dr. Rudolph correctly asserts that the Respondent's care and treatment of the patient Fisher, especially as related to diagnostic tests and procedures, was inconsistent with the care which is recognized by a reasonably prudent physician in the Dade County, Florida, community in which Dr. Rudolph and Dr. Benavides practice medicine, either for specialists in obstetrics and gynecology or family practitioners. Dr. Edwin Crane, a specialist in obstetrics and gynecology, licensed in the State of Florida, also gave testimony. Dr. Crane correctly stated in his testimony that complaints of vaginal bleeding in post-menopausal patients indicates possible carcinoma. He also identified the fact that a pap smear will not detect bleeding from the uterus and identified the proper method for establishing the cause of bleeding from the uterus to be the gravilee jet wash; endometrial bio-suction curettage and that if these methods proved negative a dilatation and curettage (scraping of the lining of the uterus) . The pap smear is not acceptable because if the cancer is high in the uterus, the smear is only positive 15 percent of the time. This fact was established through the witness Crane. Assuming September 28, 1979, as being the first date of complaint of spotting, Dr. Crane felt that one or two weeks delay in any further consideration of this case might be acceptable, but in this instance Dr. Benavides intended to put off further procedures for a period of one month and when the patient returned on October 15, 1979, still did not undertake methods for identitying carcinoma in the uterus. Dr. Crane rightly indicates that speed in detection and treatment are vital in promoting a likelihood of cure. An analysis of the drugs which Dr. Benavides, prescribed to the patient Fisher, as conducted by Dr. Crane, reveals those drugs were not valid in the detection or treatment of carcinoma. Dr. Crane was of the persuasion that Dr. Benavides' treatment of the patient Fisher is not what would be expected from a reasonably prudent medical practitioner in the State of Florida, and that at a minimum, Dr. Benavides should have recommended procedures to be followed in detecting the reason for the bleeding and informed the patient that there was a possible malignancy, which was not done on this occasion. Dr. William T. Mixson, licensed in the State of Florida, and an expert in obstetrics and gynecology, gave testimony. Dr. Mixson testified that if confronted with vaginal bleeding, the physician should take the history and describe the amount, color, odor of the blood, how long it had been present, any hormonal therapy and any trauma associated with this discharge. A physician, according to Dr. Mixson, when confronted with this condition, should examine the abdomen, pelvis (speculum) and rectum and should take a pap smear if there is no excessive bleeding. According to Dr. Mixson, post-menopausal bleeding is a sign of possible malignancy. The sources of that bleeding, per Dr. Mixson, would be the vagina, cervix or uterus, and the explanation for the bleeding in order of occurrence would be polyps, atropic vaginitus and carcinoma. In addition to a pap smear, an office biopsy from the endometrium or dilatation and curettage would have been an appropriate diagnostic method and to wait one month to conduct these proceedings was inappropriate. In Dr. Mixson's opinion vaginal cultures are not designed to detect carcinoma, but are more appropriate for identifying infections and the medications prescribed by Dr. Benavides for the benefit of the patient Fisher were not designed to diagnose or treat carcinoma. According to Dr. Mixson, Dr. Benavides' actions were not in keeping with those of a reasonably prudent physician either in the field of obstetrics and gynecology, or as a general practitioner. Dr. Mixson's perceptions as described are accepted. The testimony by Dr. William Espinoza does not vary in a significant way on the subject of the proper care and treatment of a patient such as Ms. Fisher when contrasted with that of Drs. Crane, Rudolph and Mixson. If the facts were as established in this Recommended Order, Dr. Espinoza would not find Dr. Benavides' performance to be in keeping with that of a reasonably prudent practitioner licensed in the State of Florida. The difference in Dr. Espinoza's perception comes about in view of the fact that he would believe the Respondent's explanation of having discussed and advised Ms. Fisher of a possible malignancy on several occasions and attempting to have Ms. Fisher undergo dilatation and curettage. This explanation by the Respondent is not accepted. Therefore, the experts offered in the course of the hearing are in accord on the standard for a reasonably prudent practitioner confronted with a case similar to that of Ms. Fisher.
Findings Of Fact Dr. Gans is a chiropractor licensed in Florida on the basis of examination. Dr. Gans prepared and filed an application for examination and licensure with the Florida State Board of Chiropractic Examiners. Dr. Gans answered the question on the application, "Do you have a chiropractic license in any state?" by stating: "Ohio - Mechanotherapy." The Ohio authorities recognized several professions whose functions would be included under the practice of chiropractic in Florida. Mechanotherapy generally would be limited to the practice of manipulation only. Dr. Gans was licensed in Ohio as a mechanotherapist. Dr. Gans answered the question on the application, "Have you ever been refused licensure in any state?" by stating, "No." Dr. Gans had applied for, taken, and failed the Ohio chiropractic examination whereupon he was not issued a license as a chiropractor by the State of Ohio. Dr. Gans was eligible to reapply to take the Ohio examination. At the time of his application to Florida, Dr. Gans had appealed the determination by the Ohio authorities that he had failed the Ohio examination.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida State Board of Chiropractic Examiners revoke the license of Ray E. Gans. DONE AND ORDERED this 2nd day of October, 1978 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John R. Sutton, Esquire 250 Bird Road, Suite 310 Coral Gables, Florida 33146 Paul Lambert, Esquire 1311 Executive Center Drive Tallahassee, Florida 32301 C. A. Hartley, Director Florida State Board of Chiropractic Examiners Suite 202, Building B 6501 Arlington Expressway Jacksonville, Florida 32211
Findings Of Fact Respondent has been a licensed physician in the State of Florida for 30 years. He holds license number ME 0009656. Respondent, whose specialty is general surgery, began practicing in Orlando in 1963. At no time has Respondent' practice been limited to general surgery. When Respondent arrived in Orlando in 1961, he assisted a Dr. Cox. At the time, Dr. Cox and Respondent were the only physicians providing medical services, outside of public health clinics, to the predominantly black community of the Washington Shores area of Orlando. The subject patient (Patient), who was born on December 2, 1951, selected Respondent as her primary physician in 1977. At the time, Respondent was the physician for the Patient's husband and his mother. The Patient saw Respondent Periodically for-several years. Respondent's medical records of the Patient's initial visit record complaints of headaches and dizziness and a history of glaucoma in the Patient's left eye. The glaucoma arose from a traumatic injury suffered when she was eight years old. The Respondent's treatment of the Patient during 1977-1984 is not in question in this case. After a six-month period during which she did not visit Respondent, the Patient saw Respondent on February 14, and March 12, 1985, complaining of pain in her arm. After ordering X-rays and trying Feldene for the pain, Respondent found that the Patient responded better to Indocin, which is a mild pain reliever and anti-inflammatory medication. The X-ray reports, dated March 3, 1985, indicated that the Patient's cervical and dorsal spine were normal. According to the medical records, on February 14, the Patient's blood pressure was 146/96 in her left arm and 136/95 in her right arm and her pulse was 70 and 65 respectively On the March 12 visit, her blood pressure was 149/98 and her pulse was 81. On her next office visit, May 23, 1985, the Patient complained of nervousness, as reflected in the medical records. Her blood pressure was 152/104 and her pulse was 87. Respondent prescribed Inderide 40/25 for the Patient's hypertension and Centrax 10 mg. for the Patient's nervousness. This is the first time that he had prescribed either medication for the Patient. Respondent's medical records disclose what drugs were prescribed, the strength, and the frequency that they were to be taken. Respondent's records are not as clear as to how many pills were prescribed or whether the prescriptions were refillable. By reference to pharmacy records, however, one can determine with reasonable certainty how long the Patient was prescribed Centrax and Inderide by Respondent. With this finding, it is possible to determine from Respondent's records when a reference to a drug means that Respondent is acknowledging that the Patient is still taking the drug and when such a reference means that Respondent is giving the Patient a new prescription. Inderide is a controlled substance that combines a diuretic with Inderal, which is a beta-blocker. Both ingredients are antihypertensive agents. Inderide 40/25 contains 40 mg. of Inderal and 25 mg. of the diuretic. Besides blocking beta- receptor sites, Inderal does not otherwise affect autonomic nervous system activity. Inderal may also decrease intraocular pressure, such as that associated with glaucoma. 1O. The abrupt discontinuation of Inderal is contraindicated for a broad class of patients who have angina or may be at risk of having occult atherosclerotic heart disease. Additionally, Inderal may impair certain heart functions, which "may augment the risks of general anesthesia and surgical procedures." 1991 Physician's Desk Reference, Product Information, P. 2389. Centrax is a controlled substance derived from benzodlazepine, which has depressant effects on the central nervous system. As a benzodiazepine, Centrax is capable of producing psychological and physical dependence- According to the 1991 Physician's Desk Reference: Centrax is indicated for the management of anxiety disorders or for the short-term relief of the symptoms of anxiety. . The effectiveness of Centrax in long-term use, that is, more than 4 months, has not been assessed by systematic clinical studies. The physician should periodically reassess the usefulness of the drug for the individual patient. 1991 Physician's Desk Reference, Product Information, p. 1625. The 1991 Physician's Desk Reference recommends that patients taking Centrax for long periods have blood counts and liver function tests "periodically. " Special care is advised when using Centrax in combination with other antidepressants. Side effects of Centrax include dizziness and fatigue in about 10 percent of the patients and, less commonly, headaches and slight decreases in blood pressure. On May 30, 1985, the Patient returned to Respondent's office to have a dressing changed in connection with the removal of a growth from her arm. Her blood pressure was 128/92 and pulse was 78. The Patient next visited Respondent on July 23, 1985. As directed by Respondent, the Patient had been taking the recommended dosages of Centrax and Inderide for the past two months. On this visit, she complained of weak spells. She reported that her ophthalmologist had prescribed for her Timoptic, which is a beta blocker that is available in an eye solution. Timoptic reduces intraocular pressure, such as that associated with glaucoma. The Patient's blood pressure was 146/93 and her pulse was 55. Respondent's medical records note that the Patient was taking, in addition to the Timoptic and Indocin, Centrax and Inderide 40/25. At this time, Respondent ordered laboratory work on the Patient, including a complete blood count, fasting blood sugar, the SMAC series of 23 blood tests (which would disclose certain liver dysfunctions), an EKG, and an RPR seroiogical test. The test results were normal except for indicating borderline anemia. The Patient visited Respondent a week later on July 30. Her blood pressure was 140/82 and her pulse was 63. In response to her complaints of headaches, Respondent ordered a CT scan of her brain, continued the Centrax and Inderide, as well as Hemocyte tabs for the borderline anemia. By report dated August 7, 1985, the CT scan proved normal. The Patient visited Respondent about a week later on August 8. Her blood pressure was 121/77 and her pulse 50. On this visit, Respondent directed her not to take the Zantac, which he had prescribed two weeks earlier for a possible ulcer. The Patient had never taken any Zantac. His records also notes that the Patient only briefly took Fiorinal, which Respondent had Prescribed during the prior visit, due to nasal bleeding. Five days later, as reflected in the medical records, Respondent called Dr. Ferguson, who was then the Patient's ophthalmologist. They agreed that the Patient should discontinue the Timoptic due to the low pulse. On August 16, the Patient returned to see Respondent. Her blood pressure was 122/98 and her pulse had increased to 85. The medical records report that Dr. Ferguson had discontinued the Timoptic and had substituted another medication for intraocular eye pressure. The records also show that Respondent gave the Patient a prescription for Inderide 40/25 and Centrax 10 mg, as well as a potassium supplement for leg aches and Indocin for pain and inflammation. On August 29, 1985, the Patient returned to see Respondent. She stated that her head was ready to "explode," according to the medical records. She reported that she had been taken off all eye medication. Complaining of insomnia, the medical records note Respondent's observation of constant fidgeting indicative of anxiety. Respondent decided to increase the frequency that the Patient would take the Centrax from twice a day to three times a day. He also ordered T3 and T4 tests to determine if the Patient suffered from hyperthyroidism. About a week later, on September 5, the Patient revisited Respondent. Respondent prescribed an antihistamine for her complaints of hoarseness and a dry cough. The records disclose that the thyroid test results were normal. The Patient returned to Respondent on September 13. Noting less nervousness and hoarseness and only intermittent headaches, as reflected in the medical records, Respondent approved her returning to work. Her blood pressure was 130/1OO. The notes show that she is to "cont[inue]" the Inderide, Centrax, and Indocin. In the four months since the Patient commenced taking Inderide and Centrax, Respondent had seen her nine times or about once every two weeks. Respondent had also ordered substantial laboratory work to monitor the Patient's condition, consulted with her ophthalmologist with the result that she was taken off eye medication to see if her complaints would be eliminated, obtained a CT scan to rule out other sources of the headaches and related complaints, and obtained thyroid tests to rule out a thyroid malfunction. Sometime prior to the end of 1985, the. Patient changed ophthalmologists and retained Dr. Jerry Shuster to treat her glaucoma. Respondent had continued to prescribe Inderide 45/20, as he intended her to take it for an indefinite period to control hypertension. However, Respondent's prescription for Centrax had run out. On December 26, 1985, the Patient called Respondent to ask for a conference. As a result of this conversation, Respondent called Dr. Shuster and learned that, while treating her for her eye problems, he too had noticed her nervousness. The physicians agreed the nervousness would be helped by restarting Centrax. On December 26, following his conversation with Dr. Shuster, Respondent reissued the Patient's prescription for Centrax, Inderide, and Indocin. The Centrax prescription was for 60 pills with no refill; if taken at the maximum prescribed frequency, the Centrax prescription would run out in about 20 days. By contrast, the Inderide prescription was for 30 pills and allowed three refills; at one pill daily, this prescription would last 120 days. The Patient visited Respondent on January 16, 1986. Her pulse was 52, and she was treated for a vaginitis. A return visit on January 30 disclosed that her vaginitis had cleared up. The medical records note that her blood pressure was 121/89 and pulse was 69. The records also note that the Inderide, Centrax, Indocin, a cortisone (for the vaginitis), and Timoptic prescribed by Dr. Shuster would be continued. Based on the findings contained in Paragraphs 33 and 38 below, the word, "continued," as used in Respondent's medical records, means that the Patient was directed to continue taking medication from a prior prescription, not that she received a new prescription. In January or February, 1986, the Patient decided to discontinue the Centrax because of the fatigue that she associated with its use. She did not again take Centrax until about August, 1986, although she continued to take the Inderide. When she continued the Centrax, she had only what remained of the 20- day prescription that she had received on December 26, 1985. On March 11, 1986, the Patient next visited Respondent. Her blood pressure was 150/90. She complained of leg aches and exhaustion, and Respondent noted in his medical records his observations of fidgeting and restlessness. Respondent prescribed a potassium supplement for the aching leg and ordered a complete blood count, fasting blood sugar, and electrolytes test, which proved normal. Seven months passed before the Patient saw Respondent again. On October 15, 1986, she came to the office. Her blood pressure was 134/91 and her pulse was 73. She stated that she was suffering from nausea and dizziness. Respondent gave her another prescription for Inderide 40/25, Cortisporin for an unrelated ear infection, and Antivert 25 for the dizziness. Respondent prescribed no Centrax during the October 15 office visit. The Patient's pharmacy produced the prescription for Inderide, but, unlike the case with the simultaneous prescriptions for Inderide and Centrax on December 26, 1985, produced no prescription for Centrax. In the absence of any mention of Centrax in Respondent's medical records, which are thorough as to when Centrax and other medications were prescribed, there is no basis to find that Respondent wrote a new prescription for Centrax. Almost four months passed before Respondent again saw the Patient. On February 6, 1987, she visited the office because of back pain and stress-induced frequent urination. Her blood pressure was 140/87 and pulse was 75. Dr. Shuster had been prescribing her Timoptic and steroids for her glaucoma. Respondent approved the use of a heating pad and provided no other treatment. Nine months later, on November 11, 1987, the Patient returned to Respondent's office. She was suffering from pain in her right eye and suggested that the Timoptic being prescribed by Dr. Shuster was responsible. She was still taking the Inderide 40/25 that Respondent had prescribed, but had not been prescribed any more Centrax since December 26, 1985. Respondent gave her a new prescription for Centrax 10 mg., to be taken as needed but not more than three times daily. The prescription for Centrax was for 60 tablets with two refills. At the maximum allowed frequency, the Patient received a 60-day supply of Centrax. Respondent also ordered the T3, T4, and TSH thyroid tests, a complete blood count, and SMAC blood test. The results of the thyroid tests, which were reported on November 13, were normal for T4 and TSH and very slightly elevated for T3. Almost two leeks later, on November 23, 1987, the Patient returned to Respondent's office. Her blood pressure was 123/84 and her pulse 77. She was tired and weak and experienced numbness in her right leg, but she said that she was sleeping well. Respondent's notes reflect that he directed her to continue her medications, to take a vitamin B12 injection, and to call him the following day. The notation, "cont[inue] med[ication]s" did not mean that Respondent gave the Patient a new prescription; in this case, he had just given her a three months' supply only 10 days earlier. No prescriptions were produced by the Patient's pharmacy for any new prescriptions on or about November 23. Further, Respondent's testimony concerning his unwillingness to prescribe more than a limited amount of Centrax at one time is credited. On December 1, 1987, the Patient returned to the office. Her blood pressure was 127/78 and pulse 72. The notes record a conversation among Respondent, the Patient, and her husband that concluded with the decision that the Patient would speak with Dr. Shuster about her vision. Respondent prescribed Indocin, which had been used frequently in the past for an arthritic condition and general body aches. Two weeks later, on December 15, the Patient returned. Her blood pressure was 122/95 and pulse was 82. The records note that she appeared calmer. Respondent spoke with Dr. Shuster about the Patient's anxiety about losing her vision in the damaged eye, and they agreed that she needed an antidepressant. According to the records, Respondent prescribed Tofranil 25 mg. and that she continue to take her Centrax. Tofranil, which is a member of the dibenzazepine group, is an antidepressant that acts primarily by stimulation of the central nervous system. The 1991 Physician's Desk Reference suggests that the physician Prescribe a tranquillizer with Tofranil, if manic episodes occur. The use of Tofranil ended two weeks later when the Patient returned to Respondent's office on December 29 complaining of nausea. Recognizing this as an adverse reaction to Tofranil, Respondent took her off the medication. Her blood pressure was 131/96 and pulse 73 during this visit. In response to a complaint of hoarseness, Respondent ordered a chest X-ray and referred her to an ear, nose, and throat specialist. Chest and pelvic X-rays proved normal, as well as a mammogram taken at the same time. In response to complaints of diarrhea and stomach cramps, Respondent Prescribed Tagamet. He also continued the Prescription for Centrax, but did not provide her with a new Prescription at the time. However, on January 8, 1988, the Patient's Pharmacy filled a new Prescription from Respondent for the Patient for 60 Centrax tablets and refillable three times. The prior Centrax Prescription could have been exhausted by this time, if the Patient took three tablets a day. The new prescription gave her a 80-day supply, if she used it at the maximum rate. The ear, nose, and throat specialist, Dr. Stephen E. Howery, saw the Patient on January 4, 1988. He noted that the Patient complained of persistent hoarseness since July, 1987, and suffered from hayfever. His impression was that she suffered from polypoid degeneration of the vocal cords and recommended antihistamines. If this treatment did not work, he recommended a laryngoscopy and stripping of the vocal cords. The Patient visited Respondent on January 12. Her blood pressure was 123/92 and pulse 69. Apparently, Dr. Howery's initial conservative treatment, which was identical to Respondent's successful treatment of the same complaint two and one-half years earlier, did not help. Outpatient surgery was performed on or about January 14, 1988. The surgery, which required general anaesthesia, was successful. In preparation for the throat surgery, the Patient stated that she was taking Centrax, Inderide, Tagamet, and Timoptic, which were all discontinued prior to surgery. Following the throat surgery, the Patient began to experience difficulty in urination. She contacted Respondent, who suggested that she go to the emergency room of a nearby hospital for catheterization. After a couple such visits, when the Patient again could not void her urine, Respondent advised that she go to the hospital. In the meantime, Respondent contacted the patient's gynecologist, Dr. Chisholm. He examined the Patient on January 20 and found no gross abnormalities except for a two cm. ovarian cyst that was not the cause of the Patient's urinary problems. Respondent also contacted a uroiogist, Dr. Helmley, who eliminated the obstruction by Performing a cystoscopy and urethral dilation on January 22 which also required a general anaesthesia. At this time, Dr. Chisholm and Respondent agreed that the Patient required the services of a psychiatrist Dr. Lillian Saavedra met the Patient while she was still in the hospital. The Patient was released from the hospital on January 24, 1988. At about this time, the Patient decided not to see Respondent anymore. She required hospitalization the beginning of February, 1988, spending two weeks in a psychiatric unit of a local hospital. By this time, she was on a variety of medications, most if not all of which had not been Prescribed by Respondent. Dr. Saavedra's final diagnosis at the conclusion of the hospitalization was that the Patient suffered from somatization disorder, possible family discord, hyperthyroidism, and glaucoma in her left eye. After a few months, the Patient discontinued seeing Dr. Saavedra and taking the antidepressant that she had prescribed for the Patient. The Patient saw another psychiatrist and later a chiropractor, and her complaints gradually diminished. Nothing in the record establishes that Respondent failed to obtain adequate laboratory testing to evaluate the condition of the Patient. From May, 1985, through January, 1988, hyroid tests, in addition to various X-rays and a CT scan. These proved normal. The implication in the allegation of inadequate laboratory testing is that Respondent misdiagnosed the Patient's condition. The record is clear that he did not fail to detect thyroid problems because, during this period, she had. none. Although the low pulse rate was properly a matter of concern, Respondent reacted to it by causing the discontinuation of Timoctin. Later, Respondent's pulse rate evidently acclimated to the beta blockers. Similarly, Respondent did not fail to diagnose the polyps on the vocal cords that were later corrected by surgery. The initial treatment of the ear, nose, and throat specialist, was the same as Respondent's successful treatment of the condition two and one-half years earlier. In view of Dr. Howery's conservative initial approach to the problem, it is impossible to infer that Respondent failed to make a missed diagnosis or untimely referred the Patient to a specialist. Respondent did not fail to diagnose any dependency upon Centrax. There are two breaks in the Centrax prescriptions. Following the commencement of Centrax on May 23, 1985, the Patient took the drug continuously far four to seven months, before a break occurred prior to the December 26, 1985, prescription. The Patient discontinued taking Centrax in January or February, 1986, so, except for what tablets may have been unused from the December 26 prescription, the Patient took no Centrax for almost two years before Respondent gave new a new prescription on November 11, 1987. Within two months, however, the Patient discontinued the use of Centrax again. Although the first period during which the Centrax was Prescribed-- four to eight months--may have exceeded the period for which the drug may normally be expected to :e effective, there is no evidence that any dependency resulted during this time. The second period of use was not Particularly long-- only two months--and followed nearly two years during which the Patient had not used the drug. If taken at the maximum frequency, the Centrax would have lasted only four and one-half months from November 11 through the early January, 1988, renewal. Nothing in the record establishes that Respondent's referral of the Patient to a psychiatrist was untimely. The medical records reflect that the Patient was making some progress in late 1987. She reported sleeping fairly well during her November 23, 1987, office visit, and she appeared calmer during her December 15, 1987, visit. It is impossible to attribute her emotional and mental decline in February, 1988, to anything that Respondent did or did not do. Nothing in the record establishes that Respondent should have observed symptoms requiring psychiatric care sooner than he did. Also, the referral to the urologist was timely following the throat surgery. Nothing in the record establishes that it was unreasonable to try two catheterization before having unused from the December 26 prescription, the Patient: took no Centrax for almost two years before Respondent gave new a new prescription on November 11, 1987. Within two months, however, the Patient discontinued the use of Centrax again. Although the first period during which the Centrax was prescribed-- four to eight months--may have exceeded the period for which the drug may normally be expected to be effective, there is no evidence that any dependency resulted during this time. The second period of use was not particularly long-- only two months--and followed nearly two years during which the Patient had not used the drug. If taken at the maximum frequency, the Centrax would have lasted only four and one-half months from November 11 through the early January, 1988, refill. Nothing in the record establishes that Respondent's referral of the Patient to a psychiatrist was untimely. The medical records reflect that the Patient was making some progress in late 1987. She reported sleeping fairly well during her November 23, 1987, office visit, and she appeared calmer during her December 15, 1987, visit. It is impossible to attribute her emotional and mental decline in February, 1988, to anything that Respondent did or did not do. Nothing in the record establishes that Respondent should have observed symptoms requiring psychiatric care sooner than he did. Also, the referral to the urologist was timely following the throat surgery. Nothing in the record establishes that it was unreasonable to try two catheterization before having the Patient examined by a urologist. Respondent's medical records amply justify the various treatments that the Patient received during the years that she was seen by Respondent. The medical records are, at times, somewhat obscure as to the number of tablets prescribed at a given point. However, the records disclose A. uniform use of certain terms which, as corroborated by the pharmacy's records, provide the information from which the number of tablets can be calculated. The major exception is the Inderide, but Respondent intended to maintain this drug indefinitely. Nothing in the record establishes that Respondent failed to practice medicine with the level of care, skill, and treatment that a reasonably prudent physician recognizes as acceptable under similar conditions and circumstances. In this finding, the relevant level of care, skill, and treatment imposed upon Respondent is not relaxed because he, a general surgeon, elected to practice general medicine or because he chose to provide medical services to a community in need of such services.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Board of Medicine enter a final order dismissing the Administrative Complaint. ENTERED this 9th day of July, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1991. APPENDIX Treatment Accorded Proposed Findings of Petitioner 1-5: adopted or adopted in substance. 7: adopted except that the evidence did not demonstrate that Centrax could not be useful for treatment of anxiety over the periods for which Respondent prescribed it to the Patient. 8: rejected as subordinate and irrelevant. Petitioner failed to prove that Centrax was inappropriately prescribed foi the Patient. 9-10: adopted. 11: adopted except that May 23, 1985, is the date that Respondent first prescribed Centrax for the Patient. 12-13: adopted in substance. 14-15: rejected as unsupported by the appropriate weight of the evidence. 16: rejected as recitation of testimony. 17: rejected as unsupported by the appropriate weight of the evidence. 18 and 20: rejected as subordinate. 21: rejected as unsupported by the appropriate weight of the evidence. 22: rejected as subordinate. 23 and 29-35: rejected as recitation of testimony. Dr. Garoni's testimony has not been given much weight for the reasons set forth on the record at the hearing. 24: rejected as recitation of testimony. 25: adopted in substance. 26-28: rejected as irrelevant. Petitioner failed to prove that the Centrax was responsible for any of these problems. To the contrary, the record suggests other factors responsible for these symptoms. 36 (except for (c)): rejected as recitation of evidence. 36(c): rejected as unsupported by the appropriate weight of the evidence. The indication as to amount of pills and renewability, however, is oblique and barely satisfies the requirements of recordkeeping. 37-38: rejected as recitation of evidence. 39: rejected as legal argument. There were obvious shortcomings in Dr. Garoni's testimony concerning the subject medications, and he candidly admitted his lack of familiarity with the subject drugs. Doubtlessly, Dr. Garoni is a "reasonably prudent similar physician," as described by Section 458.331(1)(t). However, it is obvious that Dr. Garoni's prudence has led him to exercise an abundance of caution when prescribing medications such as Centrax and Inderide. Dr. Garoni candidly testified, as to Tofranil and Centrax: "I'll be honest with you, I don't feel confident to tell you whether you ought to give those two drugs together. I mean, I think that's out of my field. I would never prescribe those two drugs at all . . .." Deposition of Dr. Garoni, P. 32. His testimony is elsewhere qualified with "I think" and "I feel," when referring to Respondent's treatment of the Patient. The strategic problem for Petitioner was that Dr. Garoni was not qualified to opine on the appropriateness of the medications. This fact does not of course mean that Respondent improperly prescribed medications for the Patient because Respondent, like Dr. Garoni, holds himself out as specializing in general surgery. Nothing prevented Petitioner from offering testimony from a physician qualified to opine as to the proper use of these drugs. If Petitioner felt constrained to limit itself to a physician practicing Respondent's self-declared specialty, then another general surgeon would have to be found. However, Respondent's actual practice is, by his own admission, not confined to general surgery. In this case, an internist or general practitioner would have qualified as a similar physician. In addition, nothing would have prevented Petit:Loner from supplementing the testimony of the similar physician, whether he or she was Dr. Garoni, an internist, or a general practitioner. In this manner, Petitioner could have offered the testimony of an expert specially trained or experienced in the use of these medications. 40: rejected as recitation of testimony. 41: rejected as subordinate. Treatment Accorded Proposed Findings of Respondent The proposed findings of Respondent have been adopted in substance except as otherwise indicated: 1-2: rejected as subordinate except as to Respondent. 7 (last sentence): rejected as legal argument. 10 and 12-13: rejected as recitation of evidence. 11: rejected as subordinate. 18 (after third sentence): rejected as subordinate. 20: rejected as unsupported by the appropriate weight of the evidence. 22-23: rejected as subordinate. 23 (second): rejected as irrelevant. 25: rejected as recitation of testimony and legal argument. 26 (last sentence): rejected as irrelevant. 28: rejected as recitation of evidence. 29: rejected as subordinate. 30: rejected as subordinate and irrelevant. 33: rejected as repetitious and recitation of evidence. 34 and 38: rejected as subordinate and irrelevant. 35: rejected as legal argument. 36: rejected as recitation of evidence. COPIES FURNISHED: Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Dorothy Faircloth Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792 Richard A. Grumberg Senior Attorney Department of Professional Regulation Northwood Centre 1940 N. Monroe St. Tallahassee, FL 32399-0792 Harvey M. Alper Massey, Alper & Walden, P.A. 112 W. Citrus St. Altamonte Springs, FL 32714-2577
The Issue Whether the Respondent committed the acts attributed to her and whether such acts constitute a violation of the statutes and rules.
Findings Of Fact Carolle L. Baya is a licensed lay midwife holding a license issued by the Petitioner. Exhibit 1 is a composite of certified copies of birth certificates of babies at whose births Ms. Baya attended. Ms. Baya was very late on over 17 occasions in initiating the registration of the birth of a child whom she had delivered. On two additional occasions, she was so late that a delayed certificate of birth had to be prepared. Frances Friedl was seen by Dr. Sudesh Metah, M.D., at the hospital on April 9, 1988, at 8:30 a.m., for delivery of her first baby. She had been admitted through the emergency room and referred to obstetrics where Dr. Metah was the on-call doctor. When initially seen at the hospital, Ms. Friedl was in active labor. From the admission notes prepared by the labor and delivery nurse, Ms. Friedl started labor between 5:00 and 6:00 p.m. on April 8, 1988; and her water broke about 12:30 a.m. on April 9, 1988. Ms. Baya stated to Dr. Metah when Ms. Friedl was admitted that she had done a pelvic examination at 3:30 a.m. and had determined that Ms. Friedl was in second stage labor. The patient confirmed this information. Although Ms. Friedl had been and was pushing, the birth of the baby had not and was not progressing. At 8:30 a.m. when the doctor saw her, she was fully dilated and the baby had not descended into the birth canal. Ms. Friedl had remained in second stage labor over four hours before admission to the hospital. Dr. Metah considered two (2) hours of second stage labor long enough, with medications, epidural anesthesia, and with progress towards delivery by the patient. Dr. Metah considered three (3) hours to be the maximum for a woman to remain in second stage labor without medical intervention. Dr. Metah had to rotate the baby, who was in a vertex posterial presentation, in order for the baby to be delivered. The baby was a female, 7 pounds, 5-1/2 ounces, with Apgars of 9-10 or 9-9. 1/ She was born 1-1/2 hours after the mother's admission to the hospital. The baby was delivered as soon as possible at the hospital. Ms. Baya did not transport Ms. Friedl to the hospital until four hours after Ms. Friedl was fully dilated and in second stage labor. Annette Louise Zivkovic was admitted to Memorial Medical Center emergency room with obstetric complications in active labor. Her physician, Dr. Sager, was present when she was admitted. Ms. Baya, her midwife, was also present when Ms. Zivkovic was admitted. Admission notes state that Ms. Baya assisted the patient for three hours but that the patient was unable to deliver. Dr. Sager was present at admission and performed a vaginal examination. He determined that Ms. Zivkovic was dilated to "Station 4." The patient stated that she was very scared and her arms and legs were stiff when she had contractions. The patient was unable to push effectively and assist in delivery. The admission notes indicate she was in active labor three hours before being taken to the hospital. The Labor and Delivery Summary indicates that the patient was admitted at 4:25 p.m. on January 2, 1989. She was delivered at 4:41 p.m. She had been in labor since 1:00 p.m. There is no evidence that Ms. Baya knew that Ms. Zivkovic was staining or that she did not have Ms. Zivkovic assessed. The Petitioner's expert midwife, Ms. Richter, testified. A delay of over two hours in referring a patient who was in active labor and had not delivered was unprofessional conduct. Karen Evans was admitted to the hospital via the emergency room and delivered by C-section by Dr. Wooden because the baby was in fetal distress. When delivered, the baby's head was molded into the pelvis. A bad odor from the uterus indicated interuterus infection. Ms. Evans had a high white blood count which was consistent with an infection. Ms. Evans reported to the doctor that she had been leaking fluid for two weeks. Ms. Evans was admitted to the hospital by the emergency squad, who had been requested by Ms. Baya. The doctor stated that the midwife called the medical squad when she realized that she had a complicated patient in labor with fetal distress. Ms. Evans' labor-began at 10:30 a.m., according to Ms. Baya's reports to the patient; and Ms. Evans was admitted to the hospital at 10:30 p.m. for emergency delivery of the baby by C-Section. The baby was delivered approximately 1-1/2 hours later, at 11:57 p.m. The Petitioner's medical expert's opinion was that Ms. Evans should have been referred when it was determined that her water was leaking and should have been referred to the doctor long before she had been in active labor for 12 hours. There was no evidence that Ms. Baya knew or should have known that Ms. Evans was leaking ambiotic fluid. The baby's head being molded into the pelvis is a sign of prolonged labor. There is evidence that Ms. Baya knew that Ms. Evans had been in active labor for over 12 hours. There is no evidence that Ms. Baya knew that Ms. Evans had unexplained vaginal bleeding. There was no credible evidence that Ms. Baya failed to do metabolic screening on M.K. 2/ failed to provide accurate information on the birth certificate of M.K.'s child; or provided care to M.K., who was at high risk.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that: The Petitioner revoke the license of the Respondent; and The Petitioner suspend the revocation upon demonstration by Ms. Baya that she has taken refresher courses in midwifery and can practice safely and in accordance with all applicable statutes and rules. DONE AND ENTERED this 17th of February, 1992, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1992.
