The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint issued February 25, 2010, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for the investigation and prosecution of complaints involving physicians licensed to practice podiatric medicine in Florida. See § 456.073, Fla. Stat. The Board of Podiatry is an entity created within the Department and is responsible for regulating the practice of podiatric medicine in Florida and for imposing penalties on podiatric physicians found to have violated the provisions of section 461.013(1), Florida Statutes. See §§ 461.004 and 461.013(2), Fla. Stat. At the times material to this proceeding, Dr. Poss was a physician licensed to practice podiatric medicine in Florida, having been issued license number PO 990. At the time of her first visit to Dr. Poss's office on November 19, 2007, patient N.G. was a 72-year-old woman with diabetes, among other ailments, who reported that she healed well.3 November 19, 2007, office visit Patient N.G.'s complaint at her first office visit with Dr. Poss, which took place on November 19, 2007, was a nail fungus on the first toe of her right foot that was causing the toe to hurt. Dr. Poss's notes reflect that N.G. reported that she had had the fungus in the first toe of her right foot for approximately two years. Dr. Poss described the fungus as severe, noted that it was pulling the nail into the skin causing an ingrown toenail, and described the area around the toe as "red, incurvated, sore, painful and tender."4 Dr. Poss also noted that N.G.'s only foot problem at this office visit was the ingrown nail and fungus in the nail of the first toe of the right foot. Dr. Poss's medical records reflect that he cut all of N.G.'s nails and sanded and electronically debrided them. He noted that he spent part of the 25-minute office visit going over the "treatment regimen," which included "vinegar soaks, Neosporin ointment, Oxistat cream."5 Dr. Poss also noted in the medical record of the November 19, 2007, office visit that he put N.G. "on the fungus protocol."6 The nail fungus treatment protocol prescribed by Dr. Poss for N.G. was set out in a written document entitled "Fungus Nail Care." Copies of the protocol were maintained in Dr. Poss's office, and it was Dr. Poss's normal practice to explain the protocol and to provide a written copy of the protocol to all patients that instructed to follow the protocol.7 The fungus treatment protocol used by Dr. Poss consisted of washing the toenails with Head and Shoulders Dandruff Shampoo, rinsing them with Listerine Whitening Mouthwash, drying them, and applying prescription anti-fungal medication to the affected area. Both the shampoo and the mouthwash contain ingredients with anti-fungal properties. During the November 19, 2007, office visit, Dr. Poss explained the fungus treatment protocol to N.G.8 Dr. Poss did not include a copy of the written protocol in N.G.'s medical records, but a copy was always available in Dr. Poss's office. When used, protocols must be identified in medical records, they must be in writing, and they must be readily available. If these requirements are met, it is not necessary to include a copy of the protocol in a patient's medical records. Dr. Poss identified the fungus protocol in N.G.'s medical records, the protocol was in writing, and it was readily available in Dr. Poss's office. It was, therefore, not necessary for a copy of the protocol to be placed in N.G.'s medical records. February 18, 2008, office visit Patient N.G.'s next office visit with Dr. Poss was on February 18, 2008. Dr. Poss noted in N.G.'s medical records that she again presented with severe nail fungus, or onychomycosis, that caused her nails to push into the skin and cause pain, thereby limiting her ambulation. Dr. Poss treated N.G. by cutting her toenails, sanding them, and electronically debriding them. He prescribed Oxistat cream, which is an anti- fungal medication. August 4, 2008, office visit9 According to N.G.'s medical records, she was seen by Dr. Poss on August 4, 2008, and presented with a very painful fourth toe on her right foot. Dr. Poss observed that N.G.'s fourth toe was red, hot, sore, painful, inflamed, and tender. Dr. Poss determined that N.G. had a bone spur at the proximal interphalangeal joint ("PIPJ"), on the lateral aspect of the fourth toe, and he diagnosed N.G. as having severe bursitis. Bursitis is an inflammation of the bursa surrounding a joint; a bursa is a soft-tissue envelope that surrounds a joint to protect it. A diagnosis of bursitis is appropriate when an area around or near a joint is red, hot, and swollen but without any ulceration. Dr. Poss treated N.G.'s bursitis by administering a steroid injection between the fourth and fifth toes of N.G.'s right foot. Steroid injections are the appropriate treatment for severe bursitis. Dr. Poss also noted that he debrided the area and applied an 801 dressing, but he did not include in his notation the area that was debrided. Even though the area between N.G.'s fourth and fifth toe on her right foot was red, hot, sore, painful, inflamed, and tender, Dr. Poss did not note any signs of infection in the area of the PIPJ of the fourth toe of N.G.'s right foot. Dr. Poss noted that, at N.G.'s August 4, 2008, office visit, she had dystrophic nails with subungual debris; she had an ingrown toenail on the fourth toe of her left foot that was sore, painful, and tender; and, after she removed the nail polish from her toenails, it became apparent that she had fungus in all of her nails, which was severe and caused her toenails to push into the skin and cause pain. In addition to treating N.G.'s bursitis on her fourth toe of her right foot, Dr. Poss treated the ingrown toenail on her left foot; he cut, sanded and electronically debrided all of her nails; and he ordered vinegar soaks, Neosporin ointment, and Oxistat cream. October 10, 2008, office visit10 N.G.'s office visit to Dr. Poss on October 10, 2008, was an emergency visit because the fourth toe on her right foot was infected. In his medical records, Dr. Poss described the area as red, hot, sore, inflamed, and tender, with an abscess. Dr. Poss performed an incision and drainage procedure on the infected area, and he applied a dry, sterile dressing to the wound. In an incision and drainage procedure, a scalpel is used to cut into the skin and any fluid in the infected area is allowed to drain out of the wound. Dr. Poss prescribed 500 milligram Cipro tablets, Epsom salt soaks, and Garamycin cream, which, together with the incision and drainage procedure, was the appropriate treatment for the infection. Although he treated the abscess by performing an "incision and drainage" procedure, there is no mention in the medical records of N.G.'s October 10, 2008, office visit that the abscess contained purulence, that is, pus or fluid, in a sufficient quantity to take a culture of only the purulence from the infected area. The standard of care in treating an infection between the toes does not require that a culture be taken every time an incision and drainage procedure is performed. Rather, cultures should be taken only when there is sufficient purulence to ensure an accurate culture. The area between the fourth and fifth toes is a common location of skin breakdown, and this is the most common interspace in which to find an infection such as N.G.'s. Typically, however, there's not enough purulence in this area to justify taking a culture. In addition, there is a very thin layer of fat between the skin and the bones of toes, and many contaminants are normally present on the skin between the toes. It is, therefore, possible that a culture taken in an area where there is not sufficient purulence to ensure that only the infected matter is being cultured would produce incorrect results. December 1, 2008, office visit11 At N.G.'s December 1, 2008, office visit, Dr. Poss noted that she presented with "a very painful 4th toe on the R. foot. The area is red, hot, sore, inflamed, and tender with severe bursitis at the PIP joint, lateral aspect. She needs surgery but she doesn't want to do it."12 Although "red, hot, sore, inflamed, and tender" can describe an infected area, when there is no sign of an ulceration of the skin, such a description is also consistent with a diagnosis of severe soft- tissue bursitis. Dr. Poss did not note any sign of an ulceration or infection of the area between the fourth and fifth toes of N.G.'s right foot. Dr. Poss noted in the medical records of N.G.'s December 1, 2008, office visit that she had an ingrown toenail on the fifth toe of her left foot, which caused her pain and limited her ambulation. N.G. continued to present with severe fungal nails, which caused the nails to push into the skin and caused N.G. pain, which also limited her ambulation. Dr. Poss did not note any sign of infection in the area between the fourth and fifth toes of N.G.'s right foot. Dr. Poss treated N.G.'s severe bursitis with a steroid injection into the PIPJ of the fourth toe of N.G.'s right foot. Steroids are never injected into an area of active infection because steroids inhibit the migration of white blood cells and, thereby, inhibit the body's ability to fight the infection. A steroid injected into an active infection in the foot of a diabetic such as N.G. would present a special danger because a diabetic's ability to heal is compromised by the disease. Dr. Poss did not note any active infection or ulceration in the medical records of N.G.'s December 1, 2008, office visit, and it was not a breach of the standard of care for Dr. Poss to inject steroids into the site. December 29, 2008, office visit According to Dr. Poss's medical records, N.G. presented at his office on December 29, 2008, with paronychia of the first toe of her right foot, which was causing her a lot of discomfort. Dr. Poss described the area around the margin of the toe nail as "red, hot, sore, inflamed, and tender, with exudate present."13 ("Exudate" is drainage from infected tissue.) Dr. Poss cut back the nail, performed an incision and drainage, debrided the area, and applied a dry, sterile dressing. He prescribed vinegar soaks and Polysporin ointment. Dr. Poss did not note any sign of infection or ulceration between the between the fourth and fifth toes of N.G.'s right foot on December 29, 2008. January 19, 2009, office visit At her January 19, 2009, office visit with Dr. Poss, N.G. presented with infected eczematous skin on her left foot, which Dr. Poss described as "inflamed, tender, and sore with ulcerated fissured tissue."14 Eczematous skin is dry, flaky skin that resembles eczema; the skin can tear and peel and become cracked. Dr. Poss treated the infected eczematous skin on N.G.'s left foot by debriding the area. He prescribed Kenalog with Loprox 50/50, which N.G. was to apply to the affected area twice a day. Dr. Poss also prescribed vinegar soaks for the left foot twice a day for 30 minutes each day. At the January 19, 2009, office visit, N.G. also complained of pain in the fourth toe on her right foot, and Dr. Poss described the fourth toe as "red, hot, sore, inflamed, and tender, with bursitis at the PIPJ of the 4th toe R."15 Dr. Poss treated the bursitis by administering a steroid injection, debriding the area, and applying a dressing. Dr. Poss's notes reflect that he again advised N.G. to have surgery and that she again refused. It was appropriate for Dr. Poss to administer a steroid injection in the area between the fourth and fifth toes of N.G.'s right foot to treat her severe bursitis. Dr. Poss examined the area between the fourth and fifth toes of N.G.'s right foot and did not note any sign of infection or ulceration in the area on January 19, 2009. Indeed, Dr. Poss last noted an infection between the fourth and fifth toes of N.G.'s right foot in the medical records of her October 10, 2008, office visit, over three months prior to the January 19, 2009, steroid injection. N.G. had three office visits with Dr. Poss between the October 10, 2008, and January 19, 2009, office visits, and he did not note any signs of infection between the fourth and fifth toes of N.G.'s right foot in the medical records he maintained for these three office visits. Dr. Poss did report a small ulceration between the fourth and fifth toes of N.G.'s right foot at her October 22, 2008, office visit, which he treated, but he did not note any signs of infection in that area. February 19, 2009, office visit Dr. Poss identified several problems with N.G.'s feet during her February 19, 2009, office visit. He first noted in the medical records that N.G. had an infected fourth toe on her right foot, which Dr. Poss described as an "abscessed spur on the 4th toe R. foot on the lateral aspect" that was "infected, inflamed, tender, and sore."16 He attributed the abscess to N.G.'s wearing tight shoes and to her refusal to have surgery on the spur on the bone of the toe. Dr. Poss noted that the pain was so severe that it affected N.G.'s ability to walk. Dr. Poss performed an incision and drainage procedure on the lateral aspect of the fourth toe of N.G.'s right foot, at the PIPJ, and applied a dry, sterile dressing to the area. He prescribed 500 milligrams of Levaquin that N.G. was to take once a day, sodium chloride soaks, and Silvadene cream, which is an antibiotic cream. Although Dr. Poss noted that he drained and dressed the wound, he does not record in his medical records any sign of purulence, or pus, associated with the infection, and he did not take a culture when he treated the abscess. N.G. also presented on February 19, 2009, with an ingrown toe nail on the second toe of her right foot, and Dr. Poss noted that the area was "red, hot, sore, painful, tender, and incurvated."17 Dr. Poss treated the ingrown toe nail with a partial avulsion. In addition, on February 19, 2009, N.G. presented, as she had a number of times in the past, with "dystrophic nails with subungual debris. Onychauxis, onycholysis present with nail hypertrophy and dystopia with discoloration" and with severely fungal toe nails.18 Dr. Poss cut N.G.'s nails and sanded and electronically debrided them, and he prescribed vinegar soaks, Polysporin ointment, and Oxistat cream, in addition to the treatment he prescribed for the abscess on the fourth toe of her right foot. March 12, 2009, office visit19 At N.G.'s March 12, 2009, office visit with Dr. Poss, she complained of a very painful fourth toe on her right foot. Dr. Poss described the area as inflamed, tender, and sore, and he noted that N.G. had a .25 centimeter by .25 centimeter ulceration between her fourth and fifth toes, which he indicated was caused by the fifth toe rubbing against the fourth toe.20 He described the ulceration as having "necrotic tissue on the inside and hyperkeratotic tissue on the outside."21 Necrotic tissue is dead or flaky tissue which is debrided, or scraped off with a blade, so it doesn't produce more pressure in the affected area. The ulceration described by Dr. Poss was essentially a superficial broken blister. Dr. Poss noted in the medical records of N.G.'s March 12, 2009, office visit that he again advised her to have surgery to alleviate the chronic problems caused by the bone spur on the lateral aspect of the fourth toe of her right foot; Dr. Poss described her refusal to have surgery as "emphatic."22 Dr. Poss also noted that he advised N.G. that, if she did not have surgery, the skin between the fourth and fifth toes of her right foot would continue to break down. Dr. Poss considered the problem with the fourth toe of N.G.'s right foot to be a chronic problem that would not be resolved without surgery. Dr. Poss treated the small ulceration between the fourth and fifth toes of N.G.'s right foot with surgical debridement, and he applied a dry, sterile dressing. He told N.G. to continue with "the soaks and cream," which referred to the Silvadene cream and sodium chloride soaks he prescribed on February 26, 2009, and March 5, 2009, to treat the ulceration."23 He also told N.G. that she was to wear wide shoes and sandals that put no pressure on the area. The March 12, 2009, office visit was the last time N.G. was seen by Dr. Poss. She cancelled her next appointment and failed to keep the re-scheduled appointment. Treatment by Jay Alter, D.P.M. On March 20, 2009, eight days after her last visit to Dr. Poss's office and one month after Dr. Poss last treated her for an infection between the fourth and fifth toes of her right foot, N.G. was seen by another podiatric physician, Jay Alter, D.P.M. The medical records maintained by Dr. Alter reflect that N.G. complained on March 20, 2009, that the fourth toe on her right foot was painful when she walked and when she wore closed footwear. Dr. Alter's examination revealed that the interspace of the lateral aspect of the fourth toe, that is, the space between the fourth and fifth toes, was painful when palpated. Dr. Alter noted no drainage or cellulitis in the area, but he did note crusting, that is, scabbing, in the interspace between the fourth and fifth toes; such crusting is the result of the breakdown of superficial layers of skin. Dr. Alter diagnosed N.G. at the March 20, 2009, office visit with "Acute Painful Digital Bursitis 4th Toe Right Foot."24 Dr. Alter treated the area by applying a protective dressing and antibiotic ointment, and he directed N.G. to use saline soaks as needed and to continue to separate toes with an interdigital pad. Dr. Alter did not note any signs of infection or ulceration in the medical records of N.G.'s March 20, 2009, office visit. On March 23, 2009, N.G. was again seen by Dr. Alter. At this office visit, N.G. complained of increasing pain in the interspace between the fourth and fifth toes of her right foot, which caused her great difficulty in walking. Dr. Alter noted erythema, or redness of the skin, and a blister between the fourth and fifth toes of N.G.'s right foot, with serous drainage and pain on palpation. Dr. Alter also noted that he did an X- ray and confirmed that N.G. had a bone spur on the middle phalanx of the fourth toe of her right foot. According to Dr. Alter's medical records, he took a sample of the serous drainage from N.G.'s fourth toe on March 23, 2009, and sent the culture to the laboratory for an aerobic bacterial culture and sensitivity organism test. Dr. Alter noted that he cleaned the area with sterile saline solution and applied betadine solution, Bacitracin ointment, and a dry, sterile dressing. He also noted that he prescribed warm saline soaks as needed and 500 milligram tablets of Levaquin. According to Dr. Alter's notes, he received the laboratory results of the culture and sensitivity tests on March 25, 2009. The results showed that N.G. had a heavy growth staphylococcus aureus infection between the fourth and fifth toes of her right foot. Staphylococcus aureus is a very strong, potent infection that spreads quickly and is resistant to many oral antibiotics, including the oral antibiotics Ciprofloxacin and Levofloxacin. When such an infection is located between the toes, it can quickly spread to the bone, and a week's delay in beginning treatment could be very serious. The treatment for staphylococcus aureus infection includes intravenous antibiotics. Dr. Alter's medical records reflect that he intended to discuss the laboratory results with N.G. at her office visit scheduled for March 26, 2009, but N.G. did not keep the appointment. Dr. Alter's notes also reflect that he called N.G. on March 26, 2009, and that N.G. went to the emergency room for care and the pain. She was referred to the Bethesda wound care center for follow-up. Dr. Alter's notes reflect that N.G. was subsequently seen by a Dr. Jaffe, who hospitalized her on or about April 2, 2009, and treated the infection with, among other things, intravenous antibiotics. According to N.G.'s recollection, the infection resolved in about four-to-six months; the recovery was very difficult, and it was necessary for her to have several skin grafts. Ultimate facts A. Malpractice The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Dr. Poss committed malpractice in the practice of podiatric medicine. The Department presented no evidence to establish that Dr. Poss committed malpractice by failing to take an X-ray prior to diagnosing a bone spur and recommending surgery, and it presented no evidence to establish that Dr. Poss committed malpractice by failing to document the routine diabetic care he provided.25 1. Failure to take culture The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Dr. Poss committed malpractice because he did not take a culture of drainage from patient N.G.'s infected toe on October 10, 2008, and on February 19, 2009, the two times she presented to Dr. Poss with an infection between the fourth and fifth toes of her right foot. The Department's expert witness testified that, without exception, a culture must be taken every time a podiatric physician does an incision and drainage procedure on a patient with an infection and that Dr. Poss breached the standard of care when he failed to take a culture of the drainage from N.G.'s infected fourth toe of her right foot.26 On the other hand, the Department's expert witness also opined that Dr. Poss's treatment of N.G.'s infection on October 10, 2008, when Dr. Poss did not take a culture, was appropriate.27 Dr. Poss's expert witness testified that the standard of care does not require that a culture be taken whenever a podiatric physician performs an incision and drainage procedure. Rather, Dr. Poss's expert witness testified that the standard of care does not require a culture when there is not sufficient drainage from an infected area to ensure that a culture taken in the area would accurately identify the type of infection. Dr. Poss did not note in N.G.'s medical records for the October 10, 2008, or February 19, 2009, office visits that there was any serous drainage from the infected area.28 Upon consideration of the testimony of the two expert witnesses and of Dr. Poss's medical records, the undersigned is unable to find, without hesitation, that Dr. Poss breached the standard of care by failing to take a culture when N.G. presented on October 10, 2008, and on February 19, 2009, with infections between the fourth and fifth toes of her right foot. 2. Steroid injections The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Dr. Poss committed malpractice when he administered injections of a steroid to the area between the fourth and fifth toes of N.G.'s right foot on December 1, 2008, and January 19, 2009, because N.G. had had an infection in that area on October 10, 2008. Both the Department's expert witness and Dr. Poss's expert witness agreed that it is a breach of the standard of care to inject a steroid into an area with an active infection. Dr. Poss is, however, charged with having administered a steroid on two occasions into an area that was previously infected.29 The persuasiveness of the testimony of the Department's expert witness regarding the allegation that Dr. Poss breached the standard of care by administering a steroid injection on two occasions into an area where Dr. Poss had diagnosed an infection on October 10, 2008, is significantly diminished because it is confused and inconsistent. Early in his testimony, the Department's expert witness expressed his disagreement with Dr. Poss's having administered a steroid injection on December 1, 2008, in the area between the fourth and fifth toes of N.G.'s right foot that had been "previously infected and previously ulcerated."30 The Department's expert witness later testified that "you should not inject an area that's been previously infected, previously ulcerated in an at- risk patient that's diabetic."31 A complete review of the record reveals, however, that the majority of the testimony of the Department's expert witness on this point related to a situation in which a steroid is injected into an area of active infection.32 The Department's expert witness testified repeatedly and at length that he assumed that the infection between the fourth and fifth toes of N.G.'s right foot diagnosed and treated by Dr. Poss on October 10, 2008, never healed but remained active throughout the time N.G. was treated by Dr. Poss and that the symptoms of the infection were masked by the steroid injections. The Department's expert witness also testified that he believed that the staphylococcus aureus infection diagnosed from the culture taken by Dr. Alter on March 23, 2009, was the same infection as that treated by Dr. Poss on October 10, 2008. It was primarily in the context of his assumption that N.G. had an ongoing, active infection between the fourth and fifth toes of her right foot that the Department's expert witness testified that he would not, and Dr. Poss should not, have administered a steroid injection into this area.33 The assumption of the Department's expert witness that the infection diagnosed by Dr. Poss on October 10, 2008, was active throughout the time N.G. was treated by Dr. Poss is based on two faulty premises. First, the sole basis on which the Department's expert witness concluded that the infection between the fourth and fifth toes of N.G.'s right foot never healed was the absence of notations in N.G.'s medical records that the infections diagnosed and treated on October 10, 2008, and on February 19, 2009, had healed. It was not, however, necessary for Dr. Poss to record in the medical records of N.G.'s office visits subsequent to October 10, 2008, and February 19, 2009, the absence of an infection if there was no sign of infection; rather, it was sufficient for Dr. Poss to describe the condition of the space between the fourth and fifth toes of N.G.'s right foot at each office visit.34 It is clear from the medical records that Dr. Poss consistently examined between the fourth and fifth toes of N.G.'s right foot,35 and the absence of a notation in N.G.'s medical records that the infection had healed is not sufficient to support the assumption of the Department's expert witness that the infection had not healed. Secondly, the belief of the Department's expert witness that the staphylococcus aureus infection that was diagnosed from the culture taken by Dr. Alter on March 23, 2009, was a "continuation" of the infection diagnosed by Dr. Poss on October 10, 2008, is, likewise, not supported by the record.36 As defined by the Department's expert witness, staphylococcus aureus is "a very strong, potent infection that spreads quickly, and it was resistant to a lot of medications that you can take orally. It requires IV medications for adequate treatment. . . . So it's -- they get infected very rapidly. And a week's time, a week's delay in her treatment is bad."37 Significantly, Dr. Alter did not mention any signs of an infection between the fourth and fifth toes of N.G.'s right foot when he examined her on March 20, 2009, and diagnosed severe bursitis. In addition, Dr. Poss had prescribed the antibiotic Cipro for the infection he diagnosed on October 10, 2008, and Levaquin for the infection he diagnosed on February 19, 2009. If the infections were, indeed, staphylococcus aureus, they would have been resistant to the antibiotics prescribed by Dr. Poss,38 and it cannot be reasonably inferred that an essentially untreated, aggressive, and rapidly-advancing infection would have been masked by the steroid injections administered by Dr. Poss on December 1, 2008, and January 19, 2009. Medical records The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Dr. Poss failed to keep appropriate medical records justifying the course of treatment of N.G. The Department presented no evidence to establish that Dr. Poss "billed for procedures which were not justified or documented in the medical records."39 The Department also presented no evidence to establish that Dr. Poss failed to keep appropriate medical records by "failing to take x-rays or do laboratory work."40 The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Dr. Poss failed to keep medical records containing sufficient information to justify the level of treatment he provided N.G. or the number of visits she made to his office.41 Dr. Poss's medical records were thorough and fully justified the treatment he provided N.G. The Department's expert witness, when giving his opinion regarding the sufficiency of Dr. Poss's medical records, stated only that they were "below standard."42 The specific deficiencies the Department's expert witness identified to support the conclusion that Dr. Poss's medical records were "below standard" were (1) until March 12, 2009, Dr. Poss failed to include in his medical records notations that he instructed N.G. not to wear tight shoes43; (2) on one occasion, Dr. Poss noted in N.G.'s medical records that he did an avulsion, but he failed to say how he did the avulsion or whether he used a local anesthetic to do the avulsion44; and (3) Dr. Poss noted in the medical records for N.G.'s office visit on August 4, 2008, that he "debrided the area," but he failed to "define what was debrided or to what level it was debrided."45 Looking at Dr. Poss's medical records for N.G. as a whole, the three omissions identified by the Department's expert witness are not of sufficient significance to constitute a failure to keep medical records justifying Dr. Poss's treatment of N.G. The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Dr. Poss's failure to include in N.G.'s medical records a copy of the fungus protocol used in his office constituted a failure to keep medical records justifying the course of treatment Dr. Poss provided to N.G. It was Dr. Poss's practice to keep written copies of the fungus protocol readily available in his office; to provide a copy of the protocol to a patient that was put on it; and to go over the written protocol with the patient. Dr. Poss did not include a copy of his fungus protocol in N.G.'s medical records because a written copy of the protocol was always available in his office. Although the Department's expert witness identified Dr. Poss's failure to include a copy of the fungus protocol in N.G.'s medical records as a violation of the requirement that a podiatric physician keep medical records justifying the treatment provided a patient, the testimony of the Department's expert witness is not clear on this point. The Department's expert witness testified that "[p]rotocols have to be identified and have to be in writing" and that "[t]here must be something that you can give to a patient that the patient understands, and they must be in the record so that everyone knows what protocol you're using. It's okay to have a protocol, but the protocol must be identified. It must be readily available."46 N.G. testified that Dr. Poss explained the fungus protocol to her, but she could not recall receiving a copy of the protocol. It is likely, however, that he did give N.G. a copy of the protocol; her memory of the events that took place in 2007 was not precise, and it was Dr. Poss's routine business practice to provide his patients a copy of the protocol they had been told to follow. Nonetheless, N.G. understood the protocol even if she were not provided a copy; the protocol was identified in the medical records of N.G.'s November 19, 2007, office visit; and a written copy of the protocol was readily available in Dr. Poss's office. Dr. Poss's failure to include a copy of the protocol in the medical records does not constitute a failure to keep medical records justifying the course of treatment of N.G.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Podiatric Medicine enter a final order dismissing the Administrative Complaint filed against Kenneth D. Poss, D.P.M. DONE AND ENTERED this 16th day of May, 2011, in Tallahassee, Leon County, Florida. S Patricia M. Hart Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2011.
The Issue At issue in this proceeding is whether Oscar Roberto Nunez Cano, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Ana Isabel Cano and Roberto Nunez are the parents and natural guardians of Oscar Roberto Nunez Cano (Oscar), a minor. Oscar was born a live infant on February 20, 1997, at Jackson Memorial Hospital, a hospital located in Miami, Dade County, Florida, and his birth weight was in excess of 2500 grams. The physicians providing obstetrical services during the birth of Oscar were, at all times material hereto, participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded under the Plan when the claimants demonstrate, more likely than not, that the infant suffered an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Oscar's presentation On June 23, 1999, following the filing of the claim for compensation, Oscar was examined by Michael Duchowny, M.D., a pediatric neurologist. Dr. Duchowny's evaluation revealed the following: HISTORY ACCORDING TO MRS. CANO-NUNEZ . . . Mrs. Cano-Nunez began by explaining that Oscar's major problem is that he has 'no movement in his left arm'. This has been a problem since birth when he presented with a weakness of the left upper extremity. Oscar was the product of a term gestation born at Jackson memorial Hospital with a birth weight of 10-pounds. The mother indicated that he was 'to [sic] big when delivering' and the delivery 'caused his left arm tendons to be damaged'. Oscar ultimately remained in the Newborn Intensive Care Unit for a total of 21 days. Mrs. Cano-Nunez feels that Oscar was left with essentially a functionless left arm. He was seen by several physicians, but ultimately was referred to Dr. John Grossman who did neural graphing in August of 1998. The surgery resulted in 'some recovery of function, but he still is limited'. The left hand serves principally as a helper with his right hand performing the majority of motoric tasks. Oscar otherwise enjoys good health. He is on no intercurrent medications and there has been no exposure to toxic or infectious agents. His milestones have been delayed in that he did not walk until 1 1/2, but he spoke in words at a year. He is not yet toilet trained. His immunization schedule is up to date and he has no known allergies. * * * PHYSICAL EXAMINATION reveals Oscar to be an alert, socially integrated and cooperative 2 1/2 year old boy. The weight is 36-pounds. His head circumference measures 51.4 cm and the fontanelles are closed. There are no digital, skeletal or palmar abnormalities and no significant dysmorphic features. The spine is straight without dysraphism. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. There is a healed scar over the left supraclavicular area and further scaring of the left posterior leg where a serial nerve was taken for graphing. Both scars demonstrate keloid formation. NEUROLOGICAL EXAMINATION reveals Oscar to maintain fluent speech. His cranial nerve examination reveals full visual fields to confrontation testing and normal ocular fundi. The pupils are 3 mm and react briskly to direct and consensually presented light. There is blink to threat from both directions. The tongue and palate move well. There are no significant facial asymmetries with the exception of the left palpebral fissure which appeals slightly widened. There is no heterochromia irides and no obvious ptosis or anhydrosis on the left. Motor examination reveals symmetric strength, bulk and tone of three extremities with the left continuing to demonstrate prominent weakness. There is 1-2/5 weakness of the musculature of the proximal shoulder girdles with 3-4/5 strength more distally. Left scapular winging is noted and there is a loss of muscle bulk over the deltoid region, as well as the musculature of the mesial scapular border. Oscar is unable to elevate his shoulder above 20 degrees below neutrality. He has 'Porter's Tip' sign of the hand. Grasping is performed primarily with the right hand and he often crosses the midline. He can not grasp independently with the left. In contrast, the right upper extremity and lower extremities have normal strength, bulk and tone and the deep tendon reflexes are 2+. The deep tendon reflexes in the left upper extremity are trace/absent throughout. Station and gait are age appropriate with the expected diminished arm swing on the left. Sensory examination is deferred. In SUMMARY, Oscar's neurologic examination reveals evidence of a significant left upper extremity monoparesis. In contrast, the remainder of his neurologic examination is normal and his speech is progressing satisfactorily. I believe his cognitive status is normal. The future prognosis of left upper extremity function is guarded, as he has not responded well to surgery. The injury Oscar suffered to his left upper extremity (a brachial plexus injury) during the course of delivery is not, anatomically, a brain or spinal cord injury, and does not affect his mental abilities. Moreover, apart from the brachial plexus injury, Oscar was not shown to suffer any other injury during the course of his birth. Consequently, the proof fails to demonstrate that Oscar suffered an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury during the course of labor or delivery that rendered him permanently and substantially mentally and physically impaired.
