The Issue Through the several administrative complaints to which these cases pertain, Petitioner seeks to take disciplinary action against the medical license held by the Respondent. The alleged misconduct is more fully described in the discussion that follows.
Findings Of Fact Findings of fact set forth in the Recommended Order as modified by the Board's rulings on the Supplemental Exceptions, are approved and adopted and incorporated herein. Specifically, Paragraphs of the Findings of Fact 15, 24, 34, 43, 46, 60, 79, 98, and 108 were modified. There is competent substantial evidence to support the findings of fact of the Board.
Recommendation Upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which revokes Respondent's license to practice medicine in Florida. DONE and ENTERED this 30th day of December, 1992, in Tallahassee, Florida. CHARLES C. ADAMS 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 30th day of December, 1992. APPENDIX The following discussion is given concerning the proposed facts of the parties: Petitioner's Facts: Facts on Expert Witnesses: Paragraphs 1 through 31 are not necessary to the resolution of the dispute. Paragraphs 32 through 38 constitute legal argument. Patient Kelly John: Paragraphs 1 through 4 are subordinate to facts found. Paragraphs 5 and 6 are not relevant in that the D&C was not performed. Paragraphs 7 through 19 are subordinate to facts found. Paragraph 20 is not necessary to the resolution of the dispute. Paragraphs 21 through 28 are subordinate to facts found. Patient Dottie Akers: Paragraphs 1 and 2 are subordinate to facts found. Concerning Paragraph 3, the surgery by Dr. Becker and its findings standing alone do not form the basis for determining the appropriateness of Respondent's efforts to reestablish fertility. Paragraphs 4 through 18 are subordinate to facts found. Paragraphs 19 through 22 constitute legal argument. Paragraphs 23 through 54 are subordinate to facts found. Paragraphs 55 and 56 are not necessary to the resolution of the dispute. Paragraphs 57 and 58 are subordinate to facts found. Patient Lillian Andrews: Paragraphs 1 through 18 are subordinate to facts found. Patient Emily Rivera: Paragraphs 1 through 23 are subordinate to facts found. Paragraph 24 is contrary to facts found in that the patient had taken birth control pills for thirteen years not ten years. Paragraphs 25 through 27 are subordinate to facts found. Paragraph 28 is not accepted. Paragraph 29 is subordinate to facts found. Patient Balenda Fulton: Paragraphs 1 through 6 are subordinate to facts found. Paragraphs 7 is not necessary to the resolution of the dispute. Paragraph 8 is subordinate to facts found. Paragraphs 9 and 10 are not necessary to the resolution of the dispute nor is paragraph 11. Facts were found found concerning the patient's two children. Paragraphs 12 through 15 are subordinate to facts found. Paragraph 16 is not accepted. Paragraphs 17 and 18 are subordinate to facts found. Paragraph 19 is not necessary to the resolution of the dispute. Paragraphs 20 through 34 are subordinate to facts found. Respondent's Facts Paragraph 1 is subordinate to facts found. Paragraphs 2 through 4 are not necessary to the resolution of the dispute. Paragraphs 5 through 7 are subordinate to facts found. Paragraphs 7 through 9 are not necessary to the resolution of the dispute. It is noted that notwithstanding Dr. Rudolph's reservations concerning his objectivity, on balance his testimony was deemed an appropriate subject for consideration together with the observations of the other experts. Paragraph 10 is spoken to in the preliminary matters to the Recommended Order. Paragraph 11 is subordinate to facts found. Paragraphs 12 and 13 are not necessary to the resolution of the dispute. Paragraph 14 is subordinate to facts found. Paragraph 15 is subordinate to facts found with the exception of the reported advice to the patient to have a tubal reanastomosis that is not accepted. Paragraph 16 through 25 are subordinate to facts found. Paragraph 26 is is not necessary to the resolution of the dispute. Paragraphs 27 through 30 are subordinate to facts found. Paragraph 31 is rejected in that it suggests that there were existing fimbriated ends of the fallopian tubes. Paragraphs 32 through 39 are subordinate to facts found. Paragraphs 40 through 42 constitute legal argument. Paragraph 43 is subordinate to facts found. Paragraphs 44 through 47 are contrary to facts found. Paragraphs 48 and 49 are subordinate to facts found. Paragraph 50 is contrary to facts found. Paragraph 51 is subordinate to facts found. Paragraph 52 is contrary to facts found. Concerning Paragraph 53 while it is not necessary to record instructions about the use of Danazol, Respondent did not perform the needed task of oral instruction. Paragraph 54 is subordinate to facts found with the exception of references to pain two to three days prior to menses. That suggested fact finding is rejected as is Paragraph 55 to the extent that it is dependent upon that fact. Paragraph 56 is rejected in its suggestion that extensive endometriosis was present. The same response is made to the fact finding suggested in Paragraph 57. Paragraphs 58 through 63 are subordinate to facts found. Paragraph 64 is not necessary to the resolution of the dispute. Paragraph 65 is not accepted as to the extent that the proposed finding suggests performing a laparoscopic examination on that limited information. Reference in Paragraph 66 to the civil suit is not necessary to the resolution of the dispute. The balance of Paragraphs 66 through 71 are subordinate to facts found. Paragraphs 72 through 77 constitutes legal argument. Paragraph 78 is contrary to facts found in its suggestion that there was any pelvic exam performed. Paragraph 79 is rejected in its indication that there were any reports of pelvic pain prior to menses. Paragraph 80 is subordinate to facts found. Paragraph 81 is contrary to facts found in its suggestion that an adequate basis was being present to justify the laparoscopy. Paragraph 82 is subordinate to facts found. Paragraphs 83 is rejected as to purported findings on laparoscopy and laparotomy. Paragraph 84 is subordinate to facts found. Paragraph 85 is contrary to facts found. Paragraph 86 is not necessary to the resolution of the dispute. Paragraphs 87 through 94 constitute legal argument. Paragraph 95 is subordinate to facts found. Paragraph 96 is not accepted in its depiction of a complaint of menometrorrhagia, same for paragraph 97. Paragraphs 98 through 101 are contrary to facts found in their suggestion that the D&C and hysterocopy were performed. Paragraphs 102 and 103 are subordinate to facts found. As to Paragraphs 104 and 105 and their suggestion that Respondent instructed the patient concerning ectopic pregnancy those Paragraphs are contrary to facts found as are Paragraphs 106 through 108. Paragraphs 109 and 110 are subordinate to facts found. Paragraphs 111 through 117 constitute legal argument found. Paragraphs 118 through 121 are accepted but are not necessary to be reflected in the fact finding. COPIES FURNISHED: Susan E. Lindgard, Esquire Michael Blazicek, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Julie Gallagher, Esquire Sandra Stockwell, Esquire Post Office Box 11059 Tallahassee, FL 32302 Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issues in this case are whether Respondent violated Subsections 456.072(1)(k), 458.331(1)(g), 458.331(1)(m), and 458.331(1)(t), Florida Statutes (2005),1 and Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes (2004), and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency in Florida charged with regulating the practice of medicine pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes. At all times material to the Amended Administrative Complaint, Dr. Pendergraft has been a licensed physician in the State of Florida, having been issued license No. ME 59702. Dr. Pendergraft is board-certified in Obstetrics and Gynecology. He does not have hospital privileges in Florida. At all times material to the Amended Administrative Complaint, Dr. Pendergraft, alone or with one or more partners, owned and operated Orlando Women’s Center, Inc. (OWC), a clinic located in Orlando specializing in abortions. OWC is not a hospital. At all times relevant to the Amended Administrative Complaint, Dr. Pendergraft did not have a current, valid Drug Enforcement Administration (DEA) number. On June 3, 2005, R.W. presented to her primary care physician symptoms of weight gain, fatigue, and lack of a menstrual period for several months. R.W. was a marathon runner and had experienced a delay in her menstrual cycle before because of her strenuous training. She had been taking oral contraceptives. At that time, her primary care physician did not diagnose R.W. as being pregnant. A couple of weeks after her visit with her primary care physician, R.W. still had not regained her menstrual cycle and took a home pregnancy test. The results of the home pregnancy test were positive. R.W. contacted her primary care physician, who ordered laboratory tests for R.W. Laboratory tests were conducted on June 14, 2005, and June 21, 2005. Both tests confirmed the pregnancy. R.W. was referred to Bert Fish Medical Center for an ultrasound on June 21, 2005. The ultrasound showed that R.W. was pregnant. The physician who prepared the diagnostic imaging report based on the ultrasound stated in the report: There is a single intrauterine fetus with an estimated gestational age of 24.5 weeks. Positive fetal heartbeat is present at 142 beats per minute. However, there is severe oligohydiamnios with no positive fetal movement. Gestational age is usually calculated from the first day of the last menstrual period (LMP) of the pregnant woman. On average, the last menstrual cycle occurs two weeks prior to conception. Thus, the gestational age that is determined by the LMP is actually two weeks more than the date of conception.2 When the LMP is unknown, fetal measurements are used to calculate the gestational age. Oligohydramnios means a lack of amniotic fluid. Amniotic fluid is basically the fetus’ urine. A lack of amniotic fluid can be caused by the lack of kidneys or obstructed kidneys, rupture of the membranes, or a malfunction of the placenta. The lack of amniotic fluid makes it difficult to assess the fetal measurements using ultrasound. R.W. was referred to an obstetrician, Dr. P.C., who admitted R.W. to Halifax Medical Center for routine laboratory work and an obstetrical ultrasound. The ultrasound was performed on June 22, 2005, and showed that the fetus was in a breech presentation, there was markedly decreased amniotic fluid, the bowel was abnormal, and the ventral wall was suspicious. Based on the ultrasound, it appeared there was gastroschisis or omphalocele. Gastroschisis occurs when the abdominal wall of the fetus does not close properly and the intestines are outside the body. Omphalocele is a herniation of the intestines, and a sac-like structure covers the intestines outside the abdominal wall. The assigned gestational age estimated by the physician reviewing the ultrasound was 25 weeks and five days.3 R.W. was referred to a perinatologist in Jacksonville. Another ultrasound was performed on June 23, 2005. The assigned gestational age was 25 weeks and six days, which would mean that the age of the fetus was 23 weeks and six days from conception.4 The lack of amniotic fluid and the position of the fetus made it difficult to determine the actual gestational age of the fetus. The perinatologist reported the following to Dr. P.C.: At this time, an ultrasound examination was performed which showed a single living fetus in breech presentation. There is no amniotic fluid which precluded an adequate examination of fetal anatomy. The right kidney and bladder were visualized essentially excluding diagnosis of renal agenesis. A normal appearing 4 chamber structure was seen which visually appears to occupy more than 50% of the chest cavity. This is also very difficult to evaluate due to the position of the baby. There appears to be an anterior abdominal wall defect most likely a gastroschisis, however, again this is impossible to evaluate in great detail. Of importance and further complicating the problems in this case, is the biometry. Measurements of head circumference and cerebellum are consistent with 30 weeks, however, the femur length is consistent with 25 weeks. The fact that this patient has been amenorrheic since October when she could be up to 34 weeks gestation is significant. We don’t know the exact gestation but it is of concern that there is a dramatic difference between the extremities, abdomen, and head circumference as well as the cerebellum. This points to a growth retardation process. Doppler studies of the umbilical circulation were slightly elevated but if there had been placental disfunction I would have expected an absent diastolic component which was not the case. * * * [M]y biggest concern has to do with the anhydramnios and the fact that we don’t know for how long this process has been active. Pulmonary hypoplasia is a strong consideration given the size of the chest and the virtual absence of fluid. Nevertheless, not knowing for how long she has not had fluid is difficult to quote her a risk. The second area of concern is that of the appearance of a structural abnormality. Typically gastroschisis is not associated with a chromosomal anomaly, however, given the discrepancies in biometries and the absence of amniotic fluid, I wonder if this is not a gastroschisis or if it is, part of a more complex situation. The perinatologist conveyed his findings to Dr. P.C., who discussed the situation with R.W. R.W. decided to terminate the pregnancy. The office notes of Dr. P.C. stated, “It was felt by me and my partners that facilitating delivery of this non-viable child was appropriate.” Dr. P.C. called Dr. Pendergraft to discuss the case. Dr. Pendergraft agreed to help, and Dr. P.C. gathered R.W.’s medical records to send to Dr. Pendergraft. On July 7, 2005, R.W. presented to Dr. Pendergraft at OWC. R.W. filled out an information sheet and listed the first day of her last normal period as January 5, 2005.5 R.W. filled out the appropriate consent forms, which a counselor reviewed with her. R.W.’s vital signs were taken and laboratory tests were performed by staff at OWC. Dr. Pendergraft’s notes stated that the sonogram showed severe growth restriction of the fetus. He further indicated that there was a possibility of severe pulmonary hypoplasia and risk of life-threatening sudden health issues or probable fetal, prenatal demise. Dr. Pendergraft wrote in his notes that R.W.’s PMD OB/GYN physician concurred with the maternal health reasons for the termination of the pregnancy. On July 7, 2005,6 at approximately 4:27 p.m., Dr. Pendergraft administered Digoxin into the heart of the fetus to stop the fetal heart beat. Dr. Pendergraft and his medical assistant, S.M., monitored the fetal heart beat using a sonogram until the fetal heart stopped. The procedure was documented on a form used by the OWC entitled “Second Trimester Medical Procedure.” On the form, it is noted that the patient was evaluated on July 7, 2005, and found to be 27 to 28 weeks pregnant, which is 25 to 26 weeks from conception. According to T.S., a medical assistant employed by Dr. Pendergraft, the handwriting which indicates the estimated length of the pregnancy belongs to Dr. Perper, a colleague of Dr. Pendergraft. Both Dr. Perper and Dr. Pendergraft signed the form. After the Digoxin procedure was completed, R.W. was taken to a private room and given Cytotec to induce labor. S.M. continued to administer Cytotec and monitor R.W. until 8:30 p.m., when T.S. relieved S.M. At approximately 12:30 a.m., on July 8, 2005, R.W. developed a fever and the administration of Cytotec was discontinued. T.S. administered Ibuprofen to R.W. to lower the fever. At 1:30 a.m., T.S. noted that R.W. was having some cramping. T.S. wrote the following in the progress notes: “I have a standing order from Dr. Pendergraft for 2 cc Demerol [with] 1 cc Phenergran.” This order was to alleviate the pain from the cramping. At the final hearing, T.S. stated that the note was not totally accurate, because the standing order was from Dr. Perper and not Dr. Pendergraft because Dr. Pendergraft did not have DEA authorization. She attributes the error in her notes to her 20-year working relationship with Dr. Pendergraft and her automatically thinking of Dr. Pendergraft in terms of standing orders. The standing order itself was not submitted into evidence. The evidence is not clear and convincing that Dr. Pendergraft gave the standing order for the Demerol and Phenergran. At 4:30 a.m., the cramping had increased. T.S. gave R.W. an injection of 2 cc of Demerol with 1 cc of Phenergran. At 6:30 a.m., R.W. delivered the fetus and placenta at the same time inside an empty water sack. The products of conception, which included the fetus, membranes, and placenta weighed 800 grams. The weight of the products of conception was recorded on a form used by the OWC, entitled “Clinic Examination of Products of Conception.” The form listed the preoperative estimate of gestational age to be 28 weeks, which would be 26 weeks from conception. Dr. Pendergraft was one of the signatories on the form. Dr. Pendergraft charged R.W. $12,000 for the procedure. Although, both Dr. Pendergraft and his associate Dr. Perper, felt that, preoperatively, the gestational age of the fetus was between 27 and 28 weeks, Dr. Pendergraft did not transfer R.W. to a hospital. Jorge Gomez, M.D., testified as an expert witness on behalf of the Department. Dr. Gomez is board-certified in obstetrics and gynecology and in maternal-fetal medicine. Dr. Gomez opined that on July 7, 2005, the age of the fetus from conception was 27 weeks. His opinion was based on biparietal diameter (BPD), the head circumference, the size of the cerebellum, and the femur length. He discounted the abdominal circumference because the abdominal wall defect would result in a less reliable measurement of the age of the fetus. The abdominal wall defect would cause the measurement to be smaller than would be expected for the age of the fetus. Jay Neil Plotkin, M.D., testified as an expert witness for Dr. Pendergraft. Dr. Plotkin has been a licensed physician for 37 years and is board-certified in obstetrics and gynecology. Dr. Plotkin has not treated patients for four years and has not performed an abortion in six or seven years. It was Dr. Plotkin’s opinion that the abortion occurred during the second trimester rather than the third trimester. His opinion is based on the combined fetal and placental weight at time of delivery. He concluded that the gestational age at the time of delivery was 24 weeks, which would translate to 22 weeks of pregnancy from conception. He used a chart to determine the age based on the weight of the fetus, but he did not know if the chart was based on normal fetuses or included fetuses with abnormalities such as the one at issue. Dr. Pendergraft also called Steven Warsof, M.D., as an expert witness. Dr. Warsof is an obstetrician/gynecologist with a subspecialty in maternal-fetal medicine. He has spent most of his professional career pursuing academic issues in obstetrical ultrasonography. It was his opinion that R.W.’s pregnancy was in the second trimester. He also based his opinion on the weight of the products of conception after delivery. Based on the evidence presented, it is clear and convincing that R.W. was in her third trimester of pregnancy when she had the abortion. The only two doctors who placed the pregnancy in the second trimester based their opinions on the weight of the fetus and placenta at the time of delivery. Because of the complications of R.W.’s pregnancy, it is clear that the fetus had not developed normally and was underweight for its age. There had been a lack of amniotic fluid which is essential to development of the fetus. Based on his office records, it is also clear and convincing that Dr. Pendergraft was under the impression that R.W. was in her third trimester of pregnancy when he performed the abortion. The medical records of Dr. Pendergraft do not contain a written certification from two physicians that within a reasonable degree of medical probability the termination of R.W.’s pregnancy was necessary to save the life or preserve the health of R.W. The evidence established that Dr. Pendergraft wrote in his notes that there was a risk of life-threatening, sudden health issues. Assuming he was referring to the health issues of the pregnant woman, this note could be considered a certification that to a degree of medical probability that the abortion was necessary to preserve the health of R.W. However, there is no written certification from another physician that that was the case, and the note of Dr. Pendergraft that R.W.'s primary care physician concurred with the maternal health reasons for termination of the pregnancy is not a written certification from another physician. The medical records kept by Dr. Pendergraft do not contain a written certification that there is a medical necessity for emergency medical procedures to terminate the pregnancy and that no other physician is available for consultation. No evidence was presented concerning the allegations in Counts IV, V, and VI of the Amended Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Dr. Pendergraft guilty of violations of Subsection 456.072(1)(k), 458.331(1)(g), 458.331(1)(m), and 458.331(1)(t)1., Florida Statutes; dismissing Counts IV, V, and VI of the Amended Administrative Complaint; suspending his license for one year followed by three years of probation with indirect monitoring; imposing an administrative fine of $10,000.00; and denying his motion for attorney's fees pursuant to Subsection 120.595(1)(b), Florida Statutes. DONE AND ENTERED this 26th day of October, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2007.
The Issue The issues in this case are whether Respondent, a plastic surgeon, committed medical malpractice in connection with a breast augmentation procedure; and if so, whether Petitioner should impose discipline on Respondent's medical license within the applicable penalty guidelines or take some other action. RELIMINARY STATEMENT In or around November 2006, Petitioner Department of Health issued a two-count Administrative Complaint against Respondent Roger L. Gordon, M.D. The Department alleged that Dr. Gordon had committed medical malpractice in connection with a breast augmentation procedure performed on patient "D.V.", and that he had failed to maintain medical records justifying the course of D.V.'s treatment. Dr. Gordon denied the charges and timely requested a formal hearing. The Department referred the matter to the Division of Administrative Hearings ("DOAH"), where it proceeded as Case No. 07-0644PL. DOAH's file in Case No. 07- 0644PL was closed on April 30, 2007, on the Department's Motion to Relinquish Jurisdiction, in which the parties reported that they had reached an agreement to settle the dispute. On March 30, 2011, under a Motion to Re-Open Case, the Department referred the matter back to DOAH following the Board of Medicine's rejection of the agreement between the Department and Dr. Gordon. The undersigned was assigned to preside in the matter, which was placed on the docket as Case No. 11-1600PL. The final hearing took place as scheduled on August 24, 2011. Both parties were represented by counsel. At the outset, the undersigned granted both (a) the Department's uncontested motion to take official recognition of the pertinent disciplinary guidelines and (b) the Department's Motion to Amend Administrative Complaint, which Dr. Gordon opposed. In accordance with the latter ruling, the Department's Amended Administrative Complaint was deemed filed as of August 17, 2011. Also as a preliminary matter, the Department urged the undersigned to admit into evidence the medical records relating to D.V.'s treatment at the Florida Center for Cosmetic Surgery1 (the "FCCS records"), on two principal grounds. First, the Department argued, on the authority of Sheppard v. Florida State Board of Dentistry, 369 So. 2d 629, 631 (Fla. 1st DCA 1979), that because the FCCS records are of the sort required by law to be kept and made available for inspection by regulatory authorities, they therefore are not protected by the Fifth Amendment in a penal proceeding such as this. This argument was rejected, in short because Dr. Gordon did not invoke his right to remain silent as the basis for excluding the FCCS records; he objected to them on the basis of the hearsay rule. Second, the Department contended that because Dr. Gordon failed to invoke the Fifth Amendment as a basis to quash the subpoena by which the Department obtained the FCCS records, he waived the privilege against self-incrimination and therefore should be compelled to give testimony regarding the facts necessary to establish the business-records exception. The undersigned rejected this argument because the Department was unable to cite any law in support of the proposition that Dr. Gordon's failure to seek invalidation of the subpoena necessarily resulted in the evisceration of his right to remain silent at the final hearing. The proposition is unsupportable in any event because the subpoena was not addressed to Dr. Gordon personally but rather commanded the records custodian of the South Florida Center for Cosmetic Surgery to produce the medical records at issue. See Respondent's Motion in Limine to Exclude Records (filed July 14, 2011), Exhibit A. Dr. Gordon himself, in his individual capacity, did not have "standing to assert the fifth amendment right on a subpoena which was not addressed to him personally." State v. Wellington Precious Metals, Inc., 510 So. 2d 902, 905-06 (Fla. 1987). That being the case, Dr. Gordon did not waive his right against self- incrimination by declining to object to the subpoena, which would have been a futile act given his lack of standing to do so.2 The Department's witnesses were Donna Howell, an employee of the Department; and Cynthia Lee Toot, an advanced registered nurse practitioner. The Department's Exhibit A (a composite exhibit comprising D.V.'s medical records from Holy Cross Hospital in Fort Lauderdale) was admitted into evidence at hearing, and the record was held open to allow the Department to submit the deposition of D.V., which was subsequently received and is hereby admitted. Dr. Gordon did not present a case. On September 8, 2011, the Department filed a Motion to Relinquish Jurisdiction. As a result of that motion, the undersigned ruled that jurisdiction over the Amended Administrative Complaint (but not the pending Motion for Attorney Fees3) would be relinquished without delay or additional input from the parties; proposed recommended orders thus were unnecessary.
Findings Of Fact At all times relevant to this case, Respondent Roger L. Gordon, M.D., was licensed to practice medicine in the state of Florida, having been issued license number ME 82538. Dr. Gordon is certified in Plastic Surgery by the American Board of Plastic Surgery. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed physicians such as Dr. Gordon. On November 24, 2004, D.V. appeared as scheduled at the South Florida Center for Cosmetic Surgery for an augmentation mammoplasty and full pattern mastopexy. According to her medical records, D.V. tolerated the procedures well, and was discharged home at around 11:45 a.m. Later that day, D.V. returned to the South Florida Center for Cosmetic Surgery with complaints of pain and swelling of the right breast. Dr. Gordon diagnosed hematoma (accumulation of blood) of the right breast. He noted that the condition required evacuation and placement of a drain. Because D.V. had eaten after her original discharge, the evacuation procedure was performed under local anesthetic. Dr. Gordon warned D.V. that a more extensive exploration surgery under general anesthesia might be required in the future. He did not obtain an anesthesia consult prior to evacuating the hematoma. Dr. Gordon did not identify any active bleeding during the evacuation procedure. D.V. was again discharged home after the hematoma had been evacuated. D.V. reported that, after returning home, she experienced two episodes of fainting. The records of Holy Cross Hospital reflect that D.V. was admitted to the emergency room following the fainting spells. Upon admission, D.V.'s hemacrit was 22.5, indicating significant anemia. Two units of blood were administered to D.V. in anticipation of a re-exploration of the right breast under general anesthetic. On or about November 25, 2004, at Holy Cross Hospital, D.V. underwent surgical exploration of the right breast and removal of the right breast implant. She tolerated the procedures well and was discharged with instructions to follow up with Dr. Gordon on November 26, 2004. D.V. had no further complications and returned for right breast re-augmentation on or about January 21, 2005, with no known complications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Dr. Gordon not guilty of the charges set forth in the Amended Administrative Complaint. DONE AND ENTERED this 20th day of September, 2011, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 2011.
The Issue The issues are whether Respondent is guilty of violations of Section 458.331(1)(k), (m), and (t) in the practice of medicine and, if so, what penalty the Board of Medicine should impose.
Findings Of Fact Respondent is a licensed physician, holding license number ME 0033129. His license was originally issued on August 2, 1978, and remains current. There is no prior discipline against Respondent. Respondent has been certified for over 15 years by the American Board of Obstetrics and Gynecology. His practice has been devoted to obstetrics and gynecology. In 1990, Respondent was a member of a large group practicing obstetrics and gynecology in Cape Coral. Respondent was performing about 100 breast examinations a week. On the evening of April 10, 1990, D.W., who was 30 years old at the time, discovered a mass that felt like a marble in her right breast during a breast self-examination. She was upset and cried most of the night, fearful that she had breast cancer. Early the next morning, she made an appointment with Respondent's group for a breast examination later that day. A regular patient of another member of Respondent's group, who was unavailable on April 11, D. W. had last been seen by a member of Respondent's group on February 6, 1990, when her regular physician gave her an annual examination. Her breast examination at the time was normal. During the visit, the physician or nurse reviewed breast self-examination techniques with her. The physician started D. W. on birth control pills and directed her to return for a follow-up visit in two months. The April 11 office visit was devoted exclusively to addressing D. W.'s complaint of a lump in her breast. Respondent examined D. W.'s breasts with D. W. lying down and then sitting up. He felt nothing. While sitting up, D.W. guided Respondent's hand to the mass in the right breast. Still feeling nothing, Respondent remarked that the breast was somewhat fibrous. Respondent explained to D. W. that fibrocystic disease is something that women sometimes get in their breasts and it is nothing to worry about. In fact, at least 80 percent of all women in their 30s undergo fibrocystic changes in the breast. Respondent did not reach a specific diagnosis as a result of the April 11 office visit. The handwritten entries in Respondent's medical records--the complaint and blood pressure appearing to have been written by a nurse--read in their entirety: 4-11-90 Pt. c/o lump in R breast. BP--100/60 no mass found somewhat fibrous [Respondent's initials] Respondent did not advise D. W. to return to the office for a follow-up visit at a prescribed interval or if she detected the same mass or any changes in the mass. D. W. next visited Respondent's group on April 11, 1991, for her annual visit. She was seen by another physician in the group. D. W. told the physician of the lump in her breast and said that it was getting larger. The physician conducted a breast examination and felt a mass about two centimeters in diameter. Concerned about the mass, the physician scheduled an aspiration for diagnostic purposes. The results of the procedure disclosed severely atypical cells that were suspicious for carcinoma. The physician referred her to a surgeon, who first saw D.W. on May 2, 1991. The surgeon performed a breast biopsy on May 9. The biopsy revealed an infiltrating ductal carcinoma of the breast. Based on the biopsy findings, the surgeon conducted on May 17 a right modified radical mastectomy. The excised tumor measured 2.1 centimeters along its longest diameter. D. W. underwent chemotherapy and has had no recurrence of the cancer in the five years since the surgery. There are two sets of allegations concerning D.W.'s medical records. The first set of allegations is that Respondent fraudulently altered D. W.'s medical records. Someone in Respondent's office later typed the following addition to the records of D. W. immediately beneath the handwritten entry quoted above: D[.] came to the office today having felt a lump in her right breast. I could not feel anything, although her breast was somewhat fibrous. I told her to continue to check her breast and come back if she felt it again. [Respondent's initials/typist's initials-- {both typed}] Petitioner failed to prove that Respondent dictated or typed the note in the preceding paragraph or that he authorized the addition of this note to D.W.'s medical records. The intent in adding the note was fraudulent as to the third sentence, which is the only sentence in the note that is untrue. But Petitioner failed to prove that Respondent was in any way involved in the fraud. The second set of allegations concerning the medical records involves the adequacy of the records. Specifically, Petitioner alleges that Respondent failed to keep medical records justifying the course of treatment and violated the applicable standard of care by failing to keep adequate medical records. These allegations are best considered together with the remaining allegation, which is that Respondent violated the applicable standard of care by failing to recommend follow-up examinations and treatments for D. W.'s complaint of a lump in her breast. A violation of the applicable standard of care is the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The standard of care in this case pertains to the practice in early 1990. Petitioner nowhere alleges that Respondent violated the applicable standard of care by failing to detect the mass of which D.W. complained. Petitioner's expert witness, Dr. Harvey Gardy, conceded that such a failure would not necessarily violate the standard of care. Nor is it clear that the mass of which D.W. complained in April 1990 developed into the tumor removed from her breast a year later. The mass of which D. W. complained in April 1990 was in the three o'clock position, and the excised tumor was in the 12 o'clock position. Breast tumors do not change location, except to the extent that they grow, although patients conducting self- examinations may have difficulty locating the tumor with precision. Also, the excised tumor could have grown from an impalpable size in April 1990 to its size at the time of the mastectomy a year later. The second set of medical records allegations and the lone remaining standard of care allegation focus not on Respondent's alleged failure to detect and diagnose the mass of which D. W. complained, but on Respondent's alleged failure to respond adequately to D. W.'s complaint, even after he could not independently verify the mass. The applicable standard of care did not require Respondent to order further testing at the time to rule out a cancerous growth when he could not feel the mass. D. W. was not in a high-risk category for breast cancer based on her young age, three past pregnancies, and relevant family history. She displayed no physical signs of breast cancer. The physician conducting a breast examination is looking for a dominant or distinct mass--an isolated lump distinct from surrounding breast tissue. Respondent felt only fibrous changes. The applicable standard of care did not require that a physician order further diagnostic testing each time the physician detected a fibrous mass in a breast. Fibrous changes are not indicative of breast cancer. Petitioner has failed to prove that the applicable standard of care was any different when the patient claimed to have felt a distinct mass that the physician is unable to verify. It is more practical to direct a patient to return for a follow-up examination than to order potentially expensive tests. However, Petitioner failed to prove that the applicable standard of care required that a physician, failing to detect a mass in a patient not in a high-risk category for breast cancer, direct her to return to the office at a specified interval, such as two or three months later. Even less onerous than diagnostic testing or return office visits is the physician's direction that the patient return to the office if she feels the mass again or any changes in the mass. However, Petitioner failed to prove that the applicable standard of care required even this sensible precautionary direction from a physician. Testifying unpersuasively that the standard of care required the setting of a follow-up appointment, Dr. Gardy failed to testify at all whether the standard of care required Respondent to tell D. W. to return if she detected the mass again in a self-examination. One of Respondent's expert witnesses, Dr. Pierre Bouis, testified clearly on direct that the applicable standard of care did not require Respondent to direct D. W. to return if she felt the mass again (Tr. p. 125). On cross-examination, Dr. Bouis returned to the same issue and answered affirmatively the following, poorly worded question: Now, isn't it true that you also believe that it's an appropriate standard of care to tell a patient who presents under the same set of fact that she should keep checking herself and return if she feels it again or continue to feel it? Although there are many levels of care, there is a single applicable standard of care, which, if violated, justifies the imposition of discipline. By using "an," Petitioner's counsel suggested multiple standards of care and left open the possibility that the standard to which Dr. Bouis referred in his answer was aspirational, rather than mandatory. Respondent's other expert witness, Dr. J. Kell Williams, testified clearly that Respondent's failure to direct D. W. to return if she felt the lump again did not violate the applicable standard of care (Tr. pp. 43 and 52). Dr. Williams conceded that the better practice would have been to direct the patient to return (TR. pp. 43, 46, and 47), but he did not equate this practice with the applicable standard of care. In the absence of evidence establishing this sensible precaution as the applicable standard of care, Petitioner has failed to prove by clear and convincing evidence that the applicable standard of care required Respondent to advise D. W. that she should return to the office if she felt the mass again or any changes in the mass. The medical records are adequate for the limited purpose of the April 11 visit. They describe the findings and adequately outline Respondent's examination of D. W. They justify the course of treatment--which was effectively no treatment--for the reasons set forth in the preceding paragraphs. For the reasons set forth above, Petitioner has failed to prove by clear and convincing evidence the material allegations of the Administrative Complaint.
Recommendation It is RECOMMENDED that the Board of Medicine enter a final order dismissing the Administrative Complaint against Respondent. ENTERED on May 31, 1996, 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 on May 31, 1996. APPENDIX Rulings on Petitioner's Proposed Findings 1-3: adopted or adopted in substance, except she told him about the lump. Respondent never saw a lump. 4: adopted or adopted in substance, except that Respondent did not feel the marble-like mass that D. W. felt. Respondent felt only fibrocystic changes in the breast. 5-9 (second sentence): adopted or adopted in substance. 9 (remainder): rejected as irrelevant and recitation of testimony. 10-11 (second sentence): adopted or adopted in substance. 11 (remainder): rejected as irrelevant and recitation of testimony. 12-13 (first sentence): adopted or adopted in substance. 13 (remainder)-15: rejected as subordinate. 16 (first sentence): adopted or adopted in substance. 16 (second sentence)-17: rejected as recitation of evidence. 18: adopted or adopted in substance, as distinguished from the 2 cm tumor within the larger excised mass. 19: rejected as subordinate. 20: rejected as unsupported by the appropriate weight of the evidence. 21: rejected as irrelevant with respect to applicable standard of care. 22: rejected as unsupported by the appropriate weight of the evidence. The questions posed Dr. Bouis were ambiguous as to whether he was describing the better practice or the applicable standard of care. 23-24: rejected as irrelevant with respect to applicable standard of care. 25: rejected as subordinate and irrelevant. 26: rejected as subordinate. 27: rejected as unsupported by the appropriate weight of the evidence. 28: rejected as subordinate. 29-32: adopted or adopted in substance. 33: rejected as subordinate. 34: rejected as unsupported by the appropriate weight of the evidence. 35: rejected as subordinate. 36-38: rejected as subordinate and recitation of testimony. 39: rejected as unsupported by the appropriate weight of the evidence. 40: rejected as recitation of testimony. 41-43: rejected as unsupported by the appropriate weight of the evidence. 44-45: rejected as irrelevant. 46: adopted or adopted in substance. COPIES FURNISHED: Dr. Marm Harris, Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-54034 Steven Rothenburg, Senior Attorney Agency for Health Care Administration 9325 Bay Plaza Boulevard, Suite 210 Tampa, Florida 33619 Bruce D. Lamb Shear Newman 201 East Kennedy Boulevard, Suite 1000 Tampa, Florida 33602
The Issue The issue in this case is whether Respondent, Cesar Augusto Lara, M.D., should be disciplined on charges alleged in the Administrative Complaint filed by Petitioner, the Department of Health (DOH), in DOH Case No. 96-12965. Essentially, the charges are that Respondent practiced medicine below acceptable standards after receiving a questionable chest X-ray on a patient on November 17, 1994.
Findings Of Fact Respondent is a Florida licensed physician, having been issued license number ME 0060883. He has been licensed to practice medicine in the State of Florida since 1991. Respondent is board certified in family practice. He maintains a private office practice in Clearwater. He is well-respected and has never been disciplined by the Florida Board of Medicine. This case concerns Respondent's care and treatment of patient D.G. After leaving the care of Respondent, D.G. was diagnosed with lung cancer. The patient died of the disease in August 1995, before having given any sworn testimony or statement regarding Respondent's care and treatment. Respondent began providing medical care to D.G. for upper respiratory problems in January 1994. She had a history of smoking and told Respondent that she had just quit. Some time later, D.G. presented to Respondent with complaints of swelling in the left hand and an inability to move her thumb. Respondent attempted conservative treatment of D.G.’s left hand and thumb; but when her condition did not improve, Respondent referred her to an orthopedic surgeon, Dr. Michael Rothberg, on March 31, 1994. Following referral to Dr. Rothberg, Respondent continued to serve as D.G.’s primary care physician, taking care of other problems unrelated to her left hand and thumb. On November 3, 1994, Dr. Rothberg had D.G. return to Respondent to obtain surgical clearance for surgery on her hand to be performed under regional block anesthesia on November 29, 1994. Dr. Rothberg specifically requested that Respondent include the following laboratory (lab) studies as part of the surgical clearance: CBC and SMAC routine blood studies; urinalysis; and an EKG. Respondent saw the patient for surgical clearance on November 14, 1994. Respondent conducted a physical examination and ordered the laboratory studies requested by Dr. Rothberg. In addition, Respondent decided to get a chest X-ray as part of his surgical clearance. Based on his physical examination of the patient, Respondent found D.G. to be generally healthy without any respiratory symptoms or contraindications for surgery. Pending receipt of the lab results, Respondent felt that D.G. could undergo the planned surgery by Dr. Rothberg; he did not anticipate lab results that would contraindicate the planned surgery. Respondent dictated a report to that effect in the patient's presence in the examination room. The typed dictation was initialed by Respondent two days later, on November 16, 1994. Respondent testified that, at the conclusion of the office visit on November 14, 1994, he requested that D.G. return to his office in 4-to-6 weeks for follow-up. Petitioner questioned Respondent's sworn testimony on the ground that there was no documentation in the medical record supporting it. But it was Respondent's routine practice to have patients return to his office following surgery so that he could follow the recovery of his patients from the surgery. In addition, Respondent marked an "encounter form" to indicate his desire for D.G. to return to the office for follow-up in 4-to-6 weeks. An "encounter form" is a common communication tool between a physician and his office staff. It provides a means by which the patient is billed for the services provided. It also provides the staff with direction on scheduling patients for return or follow-up visits. The patient presents the encounter form to Respondent's office staff on the way out of the office. Necessary patient payments are made, and the next appointment is scheduled. The office then utilizes the form to secure third-party payments. Petitioner suggested that the encounter form in evidence as Respondent's Exhibit 2 was fabricated on the ground that Respondent did not produce it until a short time before final hearing. Respondent denied the suggestion, explaining that he did not look for it at first because he did not realize how important it was. Respondent's testimony is accepted, and the suggestion of fabrication is rejected. Should the patient refuse the appointment requested by Respondent on an encounter form, or wish to call back and schedule it later, Respondent's office staff routinely would make a notation on the form indicating that the appointment was not scheduled or that the patient would call to schedule. In this case, no such notations were made on the form. Based on routine office practice, the absence of any such notation would signify, in all probability, that D.G. was given a follow-up appointment in the requested time frame before she left Respondent's office, that the appointment was entered in Respondent's computer, and that D.G. was given a card indicating the date of her appointment. By the time of the hearing, there was no way to verify D.G.'s follow-up appointment using Respondent's office computer. Some time in 1998, Respondent switched his office computer system. The new system does not have appointment information going back to 1994, and the old system with old appointment information was not retained. Two days later, on November 16, 1994, Respondent received an imaging report of D.G.'s chest X-ray. The radiologist reported questionable slight prominence of left hilar region, inferiorly, on the posterior-anterior view. On lateral view, no definitive density could be discerned. The radiologist suggested that comparison with old films would be helpful; if old films were not available, he recommended CT examination. Respondent initialed the radiologist's report the next day, November 17, 1994. Respondent testified that it was his routine practice to initial such a report when he reviewed it. He testified that he decided not to withdraw surgical clearance based on the report. Petitioner questioned Respondent's testimony on the ground that there is no medical record documenting Respondent's decision, other than Respondent's dated initials on the imaging report. But Respondent's testimony in this regard is accepted, and Petitioner's suggestion that Respondent was not even aware of the content of the report is rejected. Respondent's medical record on D.G.'s medical record contains no other information until a pharmacist telephoned Respondent's office on January 18, 1995, to ask Respondent to authorize refilling a prescription for erythromycin. Respondent had his office relay to the pharmacist that Respondent would not authorize refilling the prescription unless Respondent saw the patient in his office. Respondent did not mention the missed appointment or questionable X-ray to the pharmacist, and D.G. never called for an appointment. On or about March 14, 1995, D.G. presented to another physician, Dr. Christopher Purcell, complaining of a five-day cough, pain in the left scapular region, and congestion and wheezing. There was no indication in Dr. Purcell's record that D.G. mentioned the questionable imaging report dated November 16, 1994. (Dr. Purcell did not testify.) On April 11, 1995, Dr. Purcell received D.G.'s medical records from Respondent's office, including the imaging report dated November 16, 1994. Dr. Purcell immediately ordered a repeat X-ray and referred D.G. for a consultation with a specialist on the same day. Not long after, D.G. was diagnosed with lung cancer. She died on August 10, 1995, from squamous cell lung cancer with metastasis to the thoracic spine. Notwithstanding the absence of any medical records between Respondent's dated initials on the imaging report on November 17, 1994, and January 18, 1995, Respondent testified to a clear recollection of discussing the report with D.G. He testified that he told her they would have to follow-up and resolve the questionable findings but that it could wait until follow-up after her planned surgery. Respondent testified that, for reasons unknown to him, D.G. canceled her follow-up appointment, never rescheduled, and never returned. There was no documentary evidence of D.G.'s canceled appointment, but the evidence was that no such evidence would exist except for cancellations or "no-shows" on the day of an appointment, in which case there would be a notation on a daily appointment sheet. For cancellations prior to the day of an appointment, the appointment would be erased from the calendar so the appointment time could be used for another patient. At the time, Respondent had no system in place for contacting patients who canceled an appointment without rescheduling. Now, after commencement of a lawsuit against him on the facts of this case, Respondent has instituted a "911" system of flagging patients whose medical condition requires the rescheduling of canceled or missed appointments. Petitioner contends that the evidence was clear and convincing that Respondent did not advise D.G. of the results of her chest X-ray or any plan for follow-up, notwithstanding Respondent's testimony that he did. Petitioner not only points to the suspicious absence of medical records (in contrast to Respondent's otherwise complete and accurate medical records) but also points out the patient's history of general good compliance with Respondent's orders and her failure to tell either her husband or Dr. Purcell about the questionable imaging report dated November 16, 1994. As for the absence of medical records, it was Respondent's routine practice upon receipt of a questionable X- ray or other lab report to ask for the patient's file and telephone the patient. Then, depending on the nature of the report and the patient involved, Respondent either would discuss the report and a plan for follow-up on the telephone or arrange for an appointment to discuss those matters in person in Respondent's office. If Respondent discussed the matter on the telephone, he normally would document the telephone call and the plan in the patient's medical record. However, it is possible that Respondent made the call to D.G. from outside the office without having her medical record available; it also is possible that he had to leave a message for D.G. and that her medical record was not readily available to him when she returned the call. Either scenario could have led to Respondent's failure to make a record of his telephone call to D.G. Respondent concedes that D.G. was a compliant patient who generally followed his orders and recommendations. She was interested and concerned about health issues affecting her and would not be inclined to ignore medical advice on them. But changes in Respondent's relationship with D.G.'s health care plan--PruCare--could explain why D.G. did not keep her follow-up appointment with Respondent. It was public knowledge that PruCare was terminating its contracts with several area physicians including Respondent, effective January 1, 1995. Respondent gave written notification of these events to his PruCare patients. PruCare also notified its insureds. Both the terminated physicians and PruCare placed advertisements in local newspapers asserting the merits of their positions in the dispute that arose from the termination. Newspaper articles also were published on the issue. It is highly probable that D.G. became aware of the contract termination in one way or another. As a result of the contract termination, PruCare would not cover visits to Respondent after January 1, 1995. Most PruCare patients changed primary care physicians to keep the financial benefit of their PruCare policies. It is possible that D.G.'s follow-up appointment was scheduled for just after the first of the year and that she called to cancel, anticipating following up with a new PruCare-approved primary care physician. Even if the follow-up appointment was scheduled for December 1994, it is quite conceivable that D.G. canceled it in the same anticipation. Normally, D.G. would discuss her health concerns with her husband. But her husband also testified that she did not discuss everything with him. Specifically, he had no knowledge that she was having a chest X-ray taken prior to her hand surgery. Nor did he know the specifics of any of the lab studies done for Respondent's clearance for surgery. It is more difficult to explain the patient's apparent failure to mention the questionable imaging report to Dr. Purcell on March 14, 1995 (based on the absence of any medical record documenting such a disclosure to him.) Assuming completeness of Dr. Purcell's medical records, it could well be that Respondent did not impress on D.G. the possible significance of the findings during his telephone conversation with her after review of the imaging report. He might not have seen the need to do so prior to the follow-up appointment he was anticipating. He also might not have wanted to so as not to unnecessarily complicate the impending hand surgery by making the patient overly anxious about the imaging report and what it could signify. Taking all of the evidence into consideration, it is found that Petitioner did not prove by clear and convincing evidence Respondent's alleged failure to advise D.G. of the results of her chest X-ray or any plan for follow-up. Besides Respondent, three physicians testified as experts in this case. All agree that 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 "standard of care") required Respondent to notify the patient to discuss the report and a plan of follow-up, which could include: physical examination; review of older X- rays (to determine if there was a change between X-rays); a repeat X-ray; a CT study (for a clearer image than an X-ray); and referral to a specialist. The disagreements among the experts centered on the urgency of follow-up and the assumed facts. Respondent's two experts accepted the veracity of Respondent's testimony that Respondent discussed with the patient the imaging report and his plan for follow-up at the appointment scheduled for follow-up for the hand surgery. Petitioner's expert assumed the contrary. Petitioner's expert testified that it was incumbent on Respondent to follow-up within 24-48 hours. But it was not clear from his testimony if "follow-up" in this context meant anything other than notification to the patient and discussion of a plan for timely follow-up. If so, Petitioner's expert was at odds with the other experts, all of whom clearly testified to their opinions that the other means of follow-up could be accomplished within anywhere from two weeks to two months. (As for physical examination, Respondent already had examined the patient on November 14, 1994, and there were no symptoms. As for review of older X-rays, the only previous X-ray was from 1989, and Respondent testified to his opinion that simply reviewing an X-ray that old would not meet the "standard of care.") Respondent and his experts placed responsibility on the patient to follow her doctor's recommendations. They did not think the "standard of care" required Respondent to contact D.G. to remind her, much less require her, to reschedule her appointment. In all probability, D.G. would have rescheduled but for PruCare's cancellation of its contract with Respondent. Through a combination of circumstances for which they did not think Respondent should be held responsible, the patient did not reschedule her appointment and was "lost to follow-up" by Respondent. Based on the pertinent factual findings and the expert testimony, Petitioner did not prove by clear and convincing evidence that Respondent practiced medicine below the "standard of care." Petitioner also suggested that Respondent was at fault for not directing D.G. to a particular primary care physician for medical care after January 1, 1995. But Respondent and his staff testified that PruCare did not make Respondent aware of his patients' options for primary care after the contract termination. There was no evidence to dispute their testimony to that effect. Nor was there any evidence that the "standard of care" required Respondent to direct D.G. to a particular primary care physician for medical care after January 1, 1995. Finally, Petitioner suggested that Respondent had an obligation to follow-up on the missed appointment when the pharmacist telephoned on January 18, 1995. Petitioner's argument would have been stronger had the patient telephoned instead of the pharmacist. As it was, the evidence was not clear and convincing that a telephone call from a pharmacist should have triggered the realization that D.G. had missed her follow-up appointment. In addition, there was no evidence that the "standard of care" required Respondent to follow-up on the missed appointment at that point. Besides, it would have been reasonable for Respondent to assume at that point that D.G. probably would not return to him but would see a new primary care physician contracted to PruCare under the patient's health care plan. Clearly, early detection and treatment of cancer is important. But, while not particularly relevant to the question of whether Respondent practiced within the "standard of care," it is noted that all of the physicians testifying as experts agreed that the outcome probably would not have been different had D.G.'s cancer been diagnosed in November 1994. Unfortunately, lung cancer is difficult to detect; when detected, it usually is beyond cure, and death usually follows relatively soon thereafter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Respondent not guilty. DONE AND ENTERED this 17th day of July, 2000, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 17th day of July, 2000. COPIES FURNISHED: Britt Thomas, Esquire Laudelina McDonald, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Jon M. Pellett, Esquire Freeman, Hunter & Maloy 201 East Kennedy Boulevard, Suite 1950 Tampa, Florida 33602 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 William W. Large, General Counsel Department of Health 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Tanya Williams, Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent is guilty of sexual misconduct in the practice of medicine in violation of Sections 458.329 and 458.331(1)(x) F.S.
Findings Of Fact At all times material, Respondent has been a Florida-licensed medical physician, license number ME 0015980. Respondent was trained in medicine at Leeds Medical School in England. He has been licensed in Florida since 1965. He served as an assistant Professor at University of Florida's Shands Teaching Hospital from 1966 through 1971. He is board-certified in otolaryngology. He retired from practice in 1994, after the events giving rise to the charges herein. On October 11, 1991, Patient E.C., a 34 year old female presented to Respondent with complaints of not being able to breathe through her nose. Respondent's examination of E.C. revealed a lump in her nose which was deviated to the right. He recorded that her nasal septum was deformed so that it met with the outside wall of the nose causing a considerable obstruction. Respondent discussed the possibility of performing a surgical reconstruction of the septum, a septorhinoplasty. He prescribed medication and instructed her to return in two weeks. E.C. returned on October 23, 1991, reporting no improvement, and septorhinoplasty was again discussed. On October 30, 1991, E.C. contacted Respondent and requested that the operation be scheduled for November 14, 1991. She was told to return to his office on November 13, 1991 for a preoperative examination. As directed, E.C. presented for that preoperative examination on November 13, 1991. Respondent shared office space with his wife, Heather Hardcastle, M.D., a psychiatrist. Preoperative physical examinations are normally performed prior to surgery in order to assure that the patient is fit for surgery and is not at an increased risk for anesthesia. Expert otolaryngologists, William Darby Glenn, M.D. and Scott H. Goldberg, M.D., opined that a preoperative breast examination is not routinely performed for septorhinoplasty and has no relationship to standard preoperative goals. At all times material, it was Respondent's custom to conduct a brief breast examination on female patients as part of his usual physical examination prior to surgery on the ear, nose, or throat because he considered breast examinations important for the patient's health and because he had been criticized in the past for not conducting sufficiently complete physical examinations on otherwise healthy ear, nose, and throat patients. Respondent and his two female office staff members who testified concurred that the procedure he routinely followed on these occasions was to have his technician and nurse, Martha King, place the female patient in an examining room with a paper gown or other drape beside her on the examining table. The patient would then undress from the waist up and put on the gown or drape. Respondent would enter the examining room after the patient was gowned/draped, and the physical examination would be conducted with Mrs. King or another female staff member present. Respondent's breast examinations included observation of the breasts and palpation of the breasts and of the axilla nodes underneath the armpits while the patient was sitting, followed by palpation of each breast, one at a time, while the patient reclined with one arm beneath her head. Then, Respondent would exit the examining room while the patient dressed. The foregoing procedure meets the acceptable standard of care within the scope of a generally accepted breast examination as described by all testifying medical experts. Several female patients also testified that the foregoing is Respondent's usual procedure and that he has never by look, word, or action treated them with less than the utmost professionalism and respect. Respondent's office staff and wife shared the same view based upon their observation of his behavior with patients. They shared a high regard for him. E.C. testified that during her preoperative visit on November 13, 1991, after conducting a breathing test on her in another room, Respondent personally brought her to the examining room. He then stated, "Let's see what you have on there," and told her to take off her top things and put her winter coat back on. Respondent exited the room while E.C. undressed and draped herself with her coat as instructed. When Respondent returned to the examining room, he sat in a corner of the room at a distance from the examining table where E.C. sat and discussed her concerns or fears of the impending surgery with her and satisfactorily answered her questions. Afterwards, Respondent walked over to the examining table, stood to E.C.'s right side, and told her to drop the coat to her waist. Respondent then placed his stethoscope on several areas of E.C.'s back and listened to her breathing. He repeated this procedure on her chest, including under the collarbone and under her left breast, listening to her heart. Then, while E.C. remained sitting upright, Respondent cupped her left breast in his right hand, pushed up and squeezed, slightly pressing his fingers around the outside of the breast. He then placed his hand on the top of the breast, pushed downward and squeezed. He repeated the procedure with E.C.'s right breast. At no time did E.C. and Respondent make eye contact. The only thing he said to her during this procedure was to breathe and to inquire if she had ever had a mammogram. She claims she was never asked to lie down and was never examined lying down. Afterwards, Respondent told E.C. to get dressed, and he exited the room while she did so. Respondent then took photographs of E.C.'s nose in the first room. E.C. described herself as filled with terror at the thought that something awfully wrong had been done to her, primarily because she had many breast examinations and none had been done this way. She was uncomfortable because of the absence of another female, the lack of a drape, and because no part of the breast examination was conducted with her lying down. She admitted, however, that the entire examination was conducted with her facing away from the door. Any female staff member or Respondent's wife could have entered the examination room while E.C. was not facing the door and she would not necessarily have seen someone there. Drs. Glenn and Goldberg felt that the scope of the examination described by E.C. was an appropriate preoperative examination for septorhinoplasty except for the examination of her breasts. Dr. Edward Weinshelbaum, M.D., a general surgeon with a practice emphasis on breast cancer patients, opined that the scope of a preoperative examination should include a breast examination. All three experts and the Respondent considered any failure to have a female patient present and any failure to drape to be inappropriate, although Dr. Glenn felt the use of a coat if all the drapes/gowns were used up would be a reasonable alternative. All three experts and the Respondent concurred that a failure to examine the patient's breasts while reclining was below the standard of care for a generally accepted breast examination; that absent this last procedure, a breast examination would not include a medically essential element; and that an appropriate and effective breast examination cannot be performed with the patient sitting up throughout. Respondent had no specific recollection of E.C.'s November 13, 1991 office visit, but categorically denied her description of the breast examination, insisting that if his records indicated that a breast examination had been performed, it must have been performed according to his usual routine, and if it were performed as E.C. described, the breast examination would be inappropriate. Respondent's records show that he conducted examinations of E.C.'s head, ears, nose, throat, chest, abdomen, and breasts during the preoperative examination. He has never attempted to conceal that he examined her breasts. Ms. King was able to recall that she and her assistant were in the office all of November 13, 1991. She had no clear recollection of E.C., but that is not particularly significant because Respondent was seeing between 20 and 30 patients per day at the time. Donna Robertson, another female office staff member, only recalled that E.C. had "an attitude" when she left after her preoperative examination because she had been asked to make an insurance co-payment. E.C. repeatedly used the words "afraid" and "fearful" to describe her reaction to fairly routine events in her life. Although E.C. has remained consistent about the events on November 13, 1991 as she recalls them, she has repeatedly failed to "remember" reasonable questions concerning her medical history and past surgical procedures such as breast augmentation surgery, repair of breast implants, and abortions, during the course of discovery in this case. She describes these occurrences as "going blank", failure to remember, and not understanding the questions at the time the questions were first put to her. Although she later disclosed medical procedures she had at first "forgotten" or misunderstood, her initial "blanks" render suspect her ability to remember the significant events in this case and detract from her credibility.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Medicine enter a final order dismissing the administrative complaint against Respondent. RECOMMENDED this 3rd day of May, 1995, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1995. APPENDIX TO RECOMMENDED ORDER 94-0292 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1-15 Accepted except that unnecessary, subordinate, and/or cumulative material has not been included. 16 Rejected as covered in FOF 9-11, 16. 17-18 Accepted except that unnecessary, subordinate, and/or cumulative material has not been included. 19-46 Accepted that E.C. testified to this effect. The substance of her testimony is covered in FOF 13-14. The proposal is not proven for the reasons given in the recommended order, including but not limited to FOF 21. 47-60 Rejected as subordinate to the facts as found or as arguments on credibility. While prior inconsistent statements may affect credibility, prior consistent statements do not tend to reinforce credibility. The substance is covered in FOF 14 and 20-21. 61-62 Accepted in part and rejected in part in FOF 8-11 and 16. 63 Rejected as subordinate. 64-65 Accepted as covered in FOF 11 and 16. 66-67 Rejected as not proven. 68 Accepted in part and rejected in part as covered in FOF 8-11 and 16. 69-70 Rejected as not proven and as a conclusion of law. Respondent's PFOF: 1-7 With corrected dates, accepted. However, unnecessary, subordinate, and/or cumulative material has not been included. 8-12 Not clearly proven, but more credible than E.C.'s version. See FOF 11-12. 13-15 Accepted as covered in FOF 8-11 and 16. Rejected as subordinate. Accepted as covered in FOF 20. 18-22 Covered only as necessary in FOF 21. Unnecessary, subordinate, and/or cumulative material not included. 23-24 Accepted, except that unnecessary, subordinate, and/or cumulative material has not been utilized. Rejected as argumentation or unnecessary, subordinate, and/or cumulative material. Covered only as necessary in FOF 12. 27-29 Rejected as argumentation or unnecessary, subordinate, and/or cumulative material. 30 Covered only as necessary in FOF 17-20. 31-35 Rejected as irrelevant. COPIES FURNISHED: Arthur B. Skafidas, Esquire Agency for Health Care Administration Northwood Centre 1940 North Monroe Street Legal A Tallahassee, Florida 32399-0792 John D. C. Newton, Esquire Messer, Vickers, et al. P.O. Box 1876 Tallahassee, Florida 32302 Douglas M. Cook, Director A H C A 2727 Mahan Drive Tallahassee, Florida 32308 Tom Wallace, Asst Dir. A H C A 325 John Knox Rd Tallahassee, Florida 32303
The Issue The issue in this case is whether Respondent is guilty of gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, and, if so, what penalty should be imposed.
Findings Of Fact At all material times, Respondent has been licensed as a physician in Florida, holding license number ME 0024024. He has not been disciplined previously. R. S. was a 19 year old, about 32-33 weeks' pregnant at the time of the caesarian section. She was admitted at Walker Memorial Hospital with ruptured membranes on the evening of January 6, 1991. She remained in the hospital overnight and was seen by Respondent on the following morning. When admitted, R. S.'s cervix was 2-3 centimeters dilated and partially effaced, or thinned. Her contractions were lasting 30-70 seconds. When seen by Respondent at about 9:15 am on January 7, R. S. was still having mild contractions. Her cervix had dilated to about 4.5 centimeters. Her contractions were about two to three minutes apart and lasted about 40 seconds. The fetal heart tones were good. After 11:00 am, R. S.'s cervix did not dilate further. Respondent checked her several times to confirm that her labor was not progressing, despite adequate labor in terms of the strength, frequency, and duration of the contractions. At the same time, Respondent observed moulding or elongation of the cartiliginous fetal skull in response to the pressures it encountered above the cervix. Through palpitation, Respondent confirmed that the frequency, duration, and strength of the contractions remained adequate. Due to the head-first position of the fetus and absence of other abnormalities, Respondent appropriately concluded that the most likely reason that the labor was not progressing was cephalopelvic disproportion. This is a condition in which the head of the fetus is too large for the pelvic area of the mother. Based on his determination of the adequacy of the contractions and the presence of cephalopelvic disproportion, Respondent decided not to use Pitocin, which is a medication used to stimulate labor. The use of Pitocin is contraindicated when the baby's head is too large for the mother's pelvic area. By 2:00 pm, three hours had passed without further dilation of the cervix. At this time, Respondent decided to perform a caesarian section. A couple of hours later, Respondent performed a caesarian section on R. S. The baby was delivered without complications, and the mother and baby were discharged from the hospital without any problems. Compared to vaginal delivery, a caesarian section involves various risks to the mother and fetus, including injury to the mother or fetus from the anaesthesia or incision. Incidents of aspiration are more common among newborns taken by caesarian section. There is a somewhat increased chance that the mother will have to undergo caesarians for subsequent pregnancies. Also, the duration and cost of hospitalization are greater for a caesarian section. However, Respondent's decision to perform a caesarian after three hours of no progress in labor did not violate the applicable standard of care and did not constitute gross or repeated malpractice. L. C. was a 26 year old in her seventh pregnancy. She had previously delivered three babies at full term and one preterm at about 36 weeks. Normal term is 38-40 weeks. L. C. had suffered spontaneous abortions of two fetuses at two and three months' gestation. Respondent first saw L. C. in February, 1990, and thereafter provided her prenatal care. After June 13, Respondent saw L. C. weekly. In early July, L. C.'s cervix began to dilate and efface. She was hospitalized on July 11, 1990. L. C. presented with definite uterine contractions at about 32.5 weeks' gestation. Her cervix was dilated to 2 cm. Respondent saw L. C. and gave her medications to stop preterm labor by relaxing the uterus. After ruling out preterm contractions, Respondent appropriately diagnosed an incompetent cervix, which is a painless effacement and dilation of the cervix that often leads to preterm delivery. The diagnosis of an incompetent cervix is often based on a patient's history. L. C. had no history of incompetent cervix. However, the diagnosis may also be based on physical findings. L. C.'s cervix was about 80 percent effaced at the time of her hospitalization. Combined with the dilation of two centimeters, she could appropriately be diagnosed as having an incompetent cervix. The primary health risk of an incompetent cervix is a preterm delivery. Premature infants may suffer from a variety of problems stemming from organ immaturity. A factor aggravating the risk is that the hospital in question is in a rural area, contains only about 100 beds, and has no secondary or tertiary facilities for the treatment of neonatals. Weighing these factors, Respondent decided to apply a cervical cerclage. A cerclage involves suturing the cervix shut so that it can withstand the pressure of the fetus without dilating and causing premature delivery. There are risks in the cerclage. A pursestring suture must be placed high in the cervix. There is thus the risk of rupture of the membranes. Infection is another risk. These risks are greater in the presence of greater effacement and dilation, as well as when the membrane is bulging into the cervical area. A cerclage is normally performed at about 24 weeks' gestation. Cerclages are rarely if ever installed at 32 weeks' gestation, as Respondent did in this case. However, the procedure was performed without complications to the mother or fetus. The mother's postoperative contractions were eliminated with medication and did not recur until she delivered a healthy baby at 38 weeks. The baby weighed 6 pounds 14 ounces, which was more than the weight of the babies delivered in any of the mother's four prior live births. Respondent's decision to apply a cerclage at 32 weeks' gestation did not violate the applicable standard of care and did not constitute gross or repeated malpractice.
Recommendation Based upon the foregoing, it is hereby RECOMMENDED that the Board of Medicine enter a final order dismissing the Administrative Complaint. ENTERED on June 6, 1994, in Tallahassee, Florida. ___________________________________ ROBERT E. MEALE 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 on June 6, 1994. APPENDIX Treatment Accorded Proposed Findings of Petitioner 1-5: adopted or adopted in substance. 6-8: rejected as unsupported by the appropriate weight of the evidence. 9: adopted or adopted in substance. 10-11: rejected as unsupported by the appropriate weight of the evidence. 12-20: adopted or adopted in substance. 21-22: rejected as unsupported by the appropriate weight of the evidence. 23: rejected as recitation of evidence. 24: rejected as unsupported by the appropriate weight of the evidence. 25: rejected as subordinate. 26: rejected as recitation of evidence. 27: rejected as unsupported by the appropriate weight of the evidence. 28-33: adopted or adopted in substance. 34: rejected as unsupported by the appropriate weight of the evidence. 35-43: adopted or adopted in substance. 44: rejected as unsupported by the appropriate weight of the evidence. 45: rejected as irrelevant. 46: adopted or adopted in substance. 47-51: rejected as recitation of evidence. 52: rejected as unsupported by the appropriate weight of the evidence. Treatment Accorded Proposed Findings of Respondent 1-9: adopted or adopted in substance. 10-19: rejected as recitation of evidence and subordinate. 20-25: adopted or adopted in substance. 26-28: rejected as recitation of evidence and subordinate. 29-30: adopted or adopted in substance. 31: rejected as recitation of evidence. 32-33: adopted or adopted in substance. 34: rejected as recitation of evidence and subordinate. COPIES FURNISHED: Jack McRay, 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 Francesca Plendl, Senior Attorney Department of Business and Professional Regulation 1940 N. Monroe St. Tallahassee, FL 32399-0750 Grover C. Freeman Freeman, Hunter & Malloy 201 E. Kennedy Blvd., Ste. 1350 Tampa, FL 33602
The Issue The ultimate issues to be resolved in this proceeding are whether the Respondent has committed violations of provisions of law relating to the practice of medicine and, if so, what disciplinary measures are appropriate. Petitioner contends that the Respondent committed acts of gross malpractice and failed to practice medicine with the level of care, skill, and treatment which is recognized as being acceptable under similar conditions in violation of the provisions of Section 458.331(1)(t), Florida Statutes, in connection with his treatment of a patient, Dawn Rae Johannsen. Respondent contends that his treatment of the patient was proper under the circumstances.
Findings Of Fact The Respondent is a licensed medical doctor, having been issued License No. 0038405 by the Petitioner. At all times material to this proceeding, the Respondent has been licensed as a physician in Florida and has maintained a private medical practice in Miami, Florida. The Respondent specializes in the fields of obstetrics and gynecology. After graduating from medical school and completing an internship program, the Respondent completed a four-year residency program at Brookdale Medical Center, New York City, in June, 1981. The Respondent has completed the first part of examinations that could lead to his being classified as "board certified" in his specialty. When he has adequate experience, he will be eligible to take the remaining portion of the examination. While at Brookdale, the Respondent was specifically trained in termination of pregnancy, or abortion, procedures. A significant portion of the Respondent's practice is the performance of abortions. He is in good standing on the active staff of seven hospitals. He performs abortion procedures at a facility known as the Dadeland Family Planning Center. During his residency program and in private practice, the Respondent has performed approximately 3,000 abortion procedures. These procedures involved patients who were in the first and second trimesters of pregnancy. During March, 1982, Dawn Rae Johannsen was a fifteen-year-old tenth grade student. On March 11, 1982, she visited the "Women's Referral Center" in Miami to be tested for pregnancy. The results of the test were positive. On March 17, 1982, she visited the Dadeland Family Planning Center to arrange for an abortion. On Saturday, March 20, she went to the center at approximately 10 a.m. to have the abortion procedure performed. In her visits to the Women's Referral Center and to the Dadeland Family Planning Center, Johannsen used a fictitious name, Terri Marks. She also gave a fictitious telephone number and a fictitious address. It was Johannsen's desire to handle her situation on her own and to keep it secret from her parents. The Respondent was working at the Dadeland Family Planning Center on March 20, 1982; and he performed the abortion procedure on Johannsen. He identified himself to Johannsen and checked her file to see that the consent forms had been signed. He talked with Johannsen to assure himself that she understood the nature of the procedure. The Respondent then examined Johannsen. He checked the size of her uterus and estimated that she was approximately thirteen weeks' pregnant. This would place her in the second trimester of pregnancy. This conflicted somewhat with Johannsen's patient history, which reflected that she had had her last period on approximately December 31, 1981. In performing abortions, the Respondent utilizes a technique known as a "suction termination." He first inserts a speculum into the vaginal canal. A speculum is a gynecological instrument that is used to visualize the vaginal area and contents. He then cleanses the area, using Betadine on a sponge. He then places a tenaculum on the anterior cervical lip. A tenaculum is a sharp- toothed instrument which provides traction. He then utilizes a local anesthesia. Once the anesthesia takes effect, Respondent utilizes "Pratt dilators" to dilate the cervix. Once the cervix is dilated, Respondent performs a "suction curettage" which serves to evacuate most, if not all, of the contents of the pregnant uterus. At that point, the Respondent utilizes a "sharp curettage." This is a sharp surgical instrument approximately 10 inches long. It serves as an extension of Respondent's hand and is used to remove any possible products of conception which were not removed by the suction technique. With this technique, the Respondent is able to determine if any debris remains in the uterus and if the side walls are firm, smooth, and clean. At that point, the Respondent reinserts the "cannula tube" that was used to do the suction curettage. This technique is used to rid the uterus of any possible cellular debris. It is an extra step that is not performed by all physicians, but which Respondent was taught in his residency program helps assure that all debris have been removed. In performing an abortion upon Dawn Johannsen, Respondent followed his usual techniques. The suction curettage and sharp curettage procedures proceeded normally. It appeared to Respondent that eight to ten weeks of fetal material were removed by the suction curettage. The sharp curettage did not reveal additional debris. Johannsen's uterine wall was smooth and clean. When the Respondent reinserted the cannula tube, he noticed that it entered a bit farther than he had remembered it entering initially. At that time, he stopped the procedure because of the possibility of a perforation in the posterior midline uterine wall. He removed the instrument. At this point, he examined the tissue that had been removed by the first suction curettage. He examined the material in a sink in the room where abortions are performed at the center. He estimated that there were eight to ten weeks' worth of tissue. He observed the tissue and saw no evidence of any bone formation or anything other than pregnancy tissue. Respondent advised Johannsen of the possibility of a perforation. He told her that he wanted to have her wait in the recovery room for a period of at least an hour and to monitor her vital signs to make sure that she was stable. He administered Pitosin to help shrink the uterus and control bleeding. Based upon the date of the patient's last period and the amount and nature of material that had been removed, Respondent concluded that she was ten weeks' pregnant rather than the thirteen weeks that he had originally estimated based upon the size of her uterus. This was a logical conclusion, since the size of a uterus provides only a guess as to the length of a pregnancy. A two-weeks' margin of error is commonly accepted, and errors in excess of that are possible. If a patient is nervous, for example, muscle contraction is likely to cause a uterus to appear larger than its actual size. The Respondent also concluded that all material had been removed from the uterus based upon his examination of the material, the sharp curettage technique, the probable length of the pregnancy, and the fact that Johannsen's uterus immediately shrunk to a size compatible with an eight-to ten-week pregnancy. There are two dangers that follow from the perforation of a uterus during an abortion. The first of these is the danger of hemorrhaging. The second is the possibility of infection. The Respondent administered the Pitosin and observed the patient for an hour after the proceeding because of the danger of hemorrhaging. Her vital signs were monitored. After the hour passed, it appeared that she was not hemorrhaging. This is usually the case with perforations that occur in the location of the possible perforation that Respondent observed. The Respondent properly concluded that she was not hemorrhaging. He also reexamined her and found her uterus to be firm. This was consistent with his conclusion that there was no bleeding and that all of the material had been removed from her uterus. To guard against infection, he prescribed an antibiotic and told the patient to take her temperature twice a day. He also told her to observe herself for any signs or symptoms of any kind of bleeding, pain, signs of infection, nausea, vomiting, or anything out of the ordinary in terms of her daily routine. He specifically instructed her to return to the center within a week for examination. He told her that he would be there on Monday and that she should return on that date. He also said that if anything out of the ordinary occurred, she should immediately contact the center and that a doctor was on call on a 24-hour basis. The danger of infection resulting from a perforation is increased if any debris remain in the uterus. The Respondent had good medical reasons to believe that there was no such debris and that the possibility of infection with the patient Johannsen was minimal. He correctly felt that by reexamining the patient within a week and by having her monitor for signs of infection, danger from infection was minimal and remote. On the afternoon of Monday, March 22, 1982, Dawn Johannsen called the Dadeland Family Planning Center. She reported that her temperature was above 100 degrees and that she was experiencing abdominal pain. She was instructed to come to the clinic at 5:30 that afternoon, when the Respondent would be available to examine her. Johannsen did not appear at the clinic that afternoon. The Respondent was concerned that the symptoms she had reported over the telephone indicated the possibility of infection. He instructed his staff to contact her. An attempt was made by the center staff to contact Johannsen. That was impossible, however, because of the fact that Johannsen had used a fictitious name and given a fictitious phone number and address. Johannsen did not return to the clinic. Johannsen apparently continued to experience abdominal pain during ensuing days. Eventually, she told her parents what had occurred, and she was taken to her family physician. She first visited her family physician on approximately March 31. Her family physician referred her to a gynecologist. She was admitted to Baptist Hospital of Miami, Inc., on April 1, 1982. By that time, the infection was severe. The gynecologist observed fetal material, including some bone, in the patient's uterus and two perforations. He was not able to control the infection through antibiotic techniques, and a complete hysterectomy was performed on April 4, 1982. Her gynecologist felt that the bone had "quickened" and estimated that she was sixteen weeks' pregnant at the time that the abortion was performed. As a result of the hysterectomy, Dawn Johannsen will not be able to bear children. If the patient had been reexamined by the Respondent during the week subsequent to the abortion, it is very likely that material could have been removed from her uterus and the infection controlled with less dramatic techniques. The hysterectomy would in all probability have been unnecessary. There is a difference in medical opinion as to what steps the Respondent should have taken when he suspected a perforation of the patient's uterus following the abortion. Two physicians testified at the hearing that they would have immediately hospitalized the patient based upon the possibility of a perforation, alone. They would have employed observational techniques to determine the existence and the extent of any perforation. These techniques are known as a "laparoscopy" and a "laparotomy." The laparoscopy is the less severe of these procedures. It carries with it the same basic possible complications as an abortion procedure. The laparotomy is more dramatic and carries with it more severe possible complications. The doctors who testified that they would have immediately hospitalized the patient, while highly qualified in the fields of obstetrics and gynecology, had limited experience in performing abortions. Neither had performed more than 200 abortions, neither had performed any second trimester abortions, and neither had performed any abortion in which a perforation resulted. They agreed that a perforation is a risk that attends abortion procedures and that the fact that one occurs does not call into question the physician's skill. Three physicians testified that they would not have hospitalized the patient based upon the mere suspicion of a perforation. These physicians testified that most perforations are self-healing and that subjecting patients to the additional risk of the observational techniques would not be justifiable. They testified that they would have hospitalized the patient only if they were persuaded that there was a perforation and that all material had not been removed from the uterus. In those cases, the witnesses concluded that the dangers were such that steps to remove additional materials should be undertaken. Both of these lines of medical opinion are viable. It does not appear that following one or the other line of opinion would constitute gross malpractice or would depart from the level of care recognized within the medical community. When the Respondent released the patient Dawn Johannsen, he had good reason to believe that the risk of a possible perforation was minimal. She was not hemorrhaging. He properly examined her, and his observations were compatible with a conclusion that all materials had been removed from her uterus. The patient was properly instructed to observe herself for signs of infection. If she had done that and returned to the center, the sad ending of this case would likely have been different. It does not appear that the Respondent's treatment of Dawn Johannsen constituted gross malpractice or that it departed from the level of care, skill, and treatment which is recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances.
