The Issue The issues in this case are whether Respondent, a physician specializing in obstetrics and gynecology, committed medical malpractice in delivering a baby and/or failed to maintain medical records justifying the course of the mother's treatment; if so, whether Petitioner should impose discipline on Respondent's medical license within the applicable penalty guidelines or take some other action.
Findings Of Fact At all times relevant to this case, Respondent Mark N. Scheinberg, M.D., was licensed to practice medicine in the state of Florida. He is board-certified in obstetrics and gynecology. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed physicians such as Dr. Scheinberg. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. Here, the Department alleges that Dr. Scheinberg committed two such offenses——namely, medical malpractice and failure to keep records justifying the course of treatment——in connection with the vacuum-assisted vaginal delivery of an infant born to Patient L.G. on February 2, 2005, at West Boca Medical Center. The crux of this case (though not the sole issue) is whether, as the Department contends, the standard of care required Dr. Scheinberg to perform a Caesarean section ("C- section") on L.G. due to the passage of time, instead of allowing her to continue to labor for approximately 13 hours and, ultimately, deliver vaginally. The events giving rise to this dispute began on February 1, 2005, at around 11:00 a.m., when L.G., whose pregnancy was at term, checked into the hospital after having experienced ruptured membranes. At 12:30 p.m. that day, L.G. signed a form bearing the title "Authorization for Medical and/or Surgical Treatment," which manifested her consent to a vaginal delivery or C-section together with, among other things, "such additional operations or procedures as [her physicians might] deem necessary." Immediately above L.G.'s signature on the form is an affirmation: "The above procedures, with their attendant risks, benefits and possible complications and alternatives, have been explained to me " The evidence is not clear as to when, exactly, Dr. Scheinberg first saw L.G., but that fact is unimportant. The medical records reflect that at 8:30 p.m. on February 1, 2005, Dr. Scheinberg gave a telephone order to initiate an IV push of the antibiotic Ampicillin; therefore, he had taken charge of L.G.'s care by that time. The nurses' notes indicate that at 10:00 p.m., L.G.'s cervix had dilated to "rim" or approximately nine centimeters—— meaning that the dilation was complete, or nearly so. At this time, and throughout the duration of L.G.'s labor, an external fetal heart monitor was in place to detect and record the baby's heartbeats and the mother's uterine contractions. An intrauterine pressure catheter ("IUPC")——a device that precisely measures the force of uterine contractions——was not inserted into L.G.'s uterus at any time during this event. The Department argues (although it did not allege in the Complaint) that, at some point during L.G.'s labor, the standard of care required Dr. Scheinberg either to place an IUPC or perform a C-section. Pet. Prop. Rec. Order at 10, ¶36. The Department's expert witness, Dr. John Busowski, testified unequivocally and unconditionally, however, that the standard of care does not require the use of an IUPC. T. 36. The undersigned credits this evidence and finds that Dr. Scheinberg's nonuse of an IUPC did not breach the standard of care. Dr. Scheinberg conducted a physical at around 2:00 a.m. on February 2, 2005, which included taking L.G.'s complete history and performing a vaginal examination. L.G.'s cervix remained dilated to approximately nine centimeters, and her labor had not substantially progressed for about four hours. Dr. Scheinberg noted in L.G.'s chart that the baby was in the posterior position at 2:00 a.m. The Department argues, based on Dr. Busowski's testimony, that as of 2:00 a.m., the standard of care required [Dr. Scheinberg to] choose one of the following options: (1) watch the patient for a few more hours to allow for progress; (2) place an IUPC to determine the adequacy of Patient L.G.'s contractions; (3) start Pitocin without the placement of an IUPC; or (4) perform a C- section. Pet. Prop. Rec. Order at 9-10, ¶ 32. The Department contends that Dr. Scheinberg breached the standard of care by choosing "simply to watch the patient for approximately 10 more hours"—— which was tantamount to "choosing to do nothing." Id. at 10, ¶¶ 33-34. In fact, Dr. Scheinberg chose to watch the patient, which was, according to Dr. Busowski, within the standard of care. Obviously, at 2:00 in the morning on February 2, 2005, Dr. Scheinberg did not choose to wait for 10 more hours, because at that point he (unlike the parties to this litigation) did not know what was about to happen. The nurses' notes reflect that L.G. was under close observation throughout the early morning hours, and that Dr. Scheinberg was following the situation. At 4:30 a.m., L.G. was set up to push and at 4:45 a.m. was pushing well. At 6:15 a.m., the notes indicate that Dr. Scheinberg was aware of the mother's attempts to push. At 6:45 a.m., he reviewed the strips from the fetal heart monitor. At 7:45 a.m., he was present and aware of L.G.'s status. From 7:00 a.m. until 8:00 a.m., no contractions were identifiable on the external monitor. At 8:00 a.m., however, L.G. was comfortable and pushing well. She stopped pushing at 8:30 a.m., but remained comfortable. Dr. Scheinberg then ordered the administration of Pitocin, a medicine which is used to strengthen contractions and hasten delivery. Although the Department faults Dr. Scheinberg for giving L.G. Pitocin at this relatively late stage of her labor, Dr. Busowski (the Department's expert witness) admitted being unable to say "that Dr. Scheinberg should have started Pitocin earlier " T. 72. The Department therefore has no clear evidential basis for second-guessing Dr. Scheinberg's professional judgment in this particular, and neither does the undersigned. At 9:10 a.m., L.G. resumed pushing. The baby's fetal heart tones (heartbeats) were stable. L.G. continued pushing, with her family present, until around 11:00 a.m., at which time Dr. Scheinberg discussed the situation with the patient and her family. Dr. Scheinberg explained to L.G. or her husband the risks of, and alternatives to, performing a vacuum-assisted vaginal delivery. Either L.G. or her husband gave verbal consent to the use of a vacuum device to assist in the delivery. Between 11:00 a.m. and 11:10 a.m., the fetal heart monitor detected some variable decelerations, meaning a decrease in heart rate that could be a sign of fetal distress. Dr. Scheinberg delivered the baby at 11:23 a.m., using a vacuum device to help pull the infant out of the birth canal. In his post-operative notes, Dr. Scheinberg wrote that his "pre-operative diagnosis" was "+3 station — prolonged second stage 2½ hrs." As a "post-operative diagnosis," Dr. Scheinberg recorded, "same + tight cord." He reported the following "findings": "tight cord cut on perineum[;] mec[onium] aspirated on perineum."
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. Scheinberg not guilty of the charges set forth in the Complaint. DONE AND ENTERED this 20th day of June, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 2011.
The Issue Whether Respondent, Dien Duong, violated the provisions of Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes, as specifically alleged in the Administrative Complaint, and, if so, what penalty would be appropriate.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, the following material and relevant facts are found: Petitioner, Department of Health, Board of Medicine, is the state agency charged with regulating the practice of physician's assistants pursuant to Chapters 455 and 458, Florida Statutes, and Section 20.43, Florida Statutes. Respondent is and has been at all times material hereto a licensed physician's assistant in the state of Florida, having been issued license number PA 0003211 in 1997. Respondent received a Bachelor's Degree in Biology from Hope College, Holland, Michigan, in 1989 and thereafter received her physician's assistant degree from Western Michigan University in 1991, and became certified in Family Practice and in Surgery in Michigan upon graduation. Respondent has maintained her certification in Family Practice and in Surgery by successfully passing an examination every six years since 1991, in addition to taking a minimum of 100 hours of Continuing Medical Education (CME) courses each year. In 1997 Respondent began working at South Florida Baptist Hospital Emergency Department and has maintained her employment in that department as a physician's assistant. During the course of her employment, Respondent has gained extensive experience in the practice of assessing lacerations and repairing lacerations of all types. Respondent is highly respected by her employing physician, Dr. Charles Eaves, and by her supervising physicians in the emergency department of the hospital. Respondent has never been the subject of discipline or corrective action regarding her professional job performance as a physician's assistant. A physician's assistant is a licensed health care professional who works under the supervision of a doctor. Typical protocol between the supervising doctor and the physician's assistant is for the physician's assistant to inspect and evaluate the patient, examine the injury, prepare the patient for treatment, consult with the supervising doctor, and thereafter administer treatment to the injury approved by the doctor, followed by after-care instructions to the patient. Based upon the testimony of the experts, the protocol between experienced physician's assistants and their supervising doctors is based upon the doctor's respect and confidence in the physician's assistant's abilities, competence, experience and work history. In these mutual trust and respect working relationships, protocol typically permits the physician's assistant to work relatively autonomously. Without involvement of the supervising doctor, the physician's assistant examines emergency room injuries; they often treat the injured patient, and thereafter present the patient's case treatment and the patient's medical record to the supervising doctor for approval and, when recommended, signature for prescribed medication. The protocol between Respondent and her supervising physician, Dr. Diaz, at South Florida Baptist Hospital on May 8, 1998, was that of mutual trust. Patient D.Z. was a 33 year-old male who had fallen from a ladder and, while attempting to break his fall with his right hand, suffered a blunt, T-shaped, tear-like laceration injury to his right hand. The injury was on the palmar aspect in the area of the fifth metacarpal of the hand-bone that extended to the small finger; a complex laceration, described by doctors as a "sort of bust or blunt type," as opposed to a clean knife cut type, approximately 3/4 centimeter in depth. On May 8, 1998, D.Z. presented himself to the South Florida Baptist Hospital (Hospital) emergency room for treatment of his right hand laceration that extended to the subcutaneous level with subcutaneous tissue exposure. The Hospital's triage nurse, after completing preliminary patient information, directed D.Z. to First Care, that part of the hospital's emergency department where Respondent was working. Respondent, following protocol, examined D.Z.'s injured right hand and ordered x-rays to be taken. An x-ray was taken of D.Z.'s right hand and was reviewed by Respondent's supervising physician, Dr. Diaz, prior to treatment of the injury by Respondent. Dr. Diaz concluded that D.Z.'s x-ray was negative, with no broken bones or tendon involved. The medical records noted that D.Z. had the full range of motion of his fingers without numbness or tingling at that time. Respondent's treatment of D.Z. consisted of laying D.Z. on his back with his arm out to his side and using local anesthesia to numb the injured area. After numbing the hand, she infiltrated the wound with one percent plain Lidocaine, irrigated the wound with normal saline, and cleaned the wound with Betadine. She then debrided the tissue. Using sterile techniques, Respondent proceeded to suture the T-shaped laceration of D.Z.'s right hand. Because of the shape and depth of the laceration and because of the exposure of jagged-edge tears to the subcutaneous tissues, Respondent placed four subcutaneous sutures with 4.0 vicryl, an absorbable suture, in order to bring and keep the jagged-edged tears of D.Z.'s laceration together. For the type of wound suffered by D.Z., described as "bust-type-ripping-flesh tear," it is not possible to close a three or four centimeter wound with only surface sutures. Subcutaneous sutures are required for those wounds of this type and depth. For these reasons and acting appropriately within the scope of the practice of an experienced physician's assistant, Respondent determined to use subcutaneous sutures on D.Z., who is right-hand dominate. The experts who testified, Dr. Eaves, Dr. Solomon, Dr. Maddalon and Ms. Vergara, agreed that the process of using subcutaneous sutures helps to control bleeding, reduce tension within the laceration, and minimize potential "air pockets" within the wound, thereby promoting the healing process, and preventing potential, after-surgery, complications. In accord with protocol established between Dr. Diaz and Respondent, it was at the conclusion of her treatment care of D.Z. that she advised Dr. Diaz of her subcutaneous suture treatment and follow-up care plan. Respondent presented D.Z.'s record for his review, approval and signature. Dr. Diaz approved Respondent's subcutaneous suture treatment, her follow- up care plan of keeping the wound clean, taking the prescribed medication and having the sutures removed within a few days during his follow up a doctor of his choice. Dr. Diaz signed both the Emergency Room report and Respondent's suggested prescription medications for D.Z. On May 11, 1998, four days after his treatment and without obtaining and taking his prescription medications as instructed, D.Z. presented himself to Dr. Maddalon's office for a follow-up examination and evaluation of his injury. On May 14, 1998, Dr. Maddalon, who employed D.Z.'s mother as his office manager and had employed D.Z. for six years to clean his office and who had operated and treated D.Z.'s right hand for carpal tunnel syndrome some years earlier, examined D.Z.'s right hand following an earlier examination by his physician's assistant. On May 15, 1998, during exploratory surgery, Dr. Maddalon reopened the laceration of D.Z.'s right hand and observed that a subcutaneous suture had passed through the ulnar nerve and tied the ulnar digital nerve to the adjoining soft tissue. He removed the subcutaneous suture and removed the damaged part of the ulnar nerve. He then re-attached the exposed ends of the ulnar nerve. D.Z. recovered satisfactorily from Dr. Maddalon's surgery with most but not all of the sensation returning to the little finger on his right hand. According to his deposition, and without a review of D.Z.'s medical records from South Florida Baptist Hospital emergency room prepared by Respondent, Dr. Maddalon opined that certain protocol should be followed in treating "blunt-tear" type hand injuries like that suffered by D.Z. Dr. Maddalon went on to stress, however, that in his opinion placing subcutaneous sutures in such an injury as D.Z.'s was not below the standard of care for a physician's assistant. Deborah Vergara, a physician's assistant at Town and Country Hospital, Tampa, Florida, qualified as an expert in physician's assistants' duties, responsibilities and protocol, and after reviewing D.Z.'s medical records, opined that the care provided D.Z. by Respondent during treatment on May 8, 1998, was appropriate for a patient with D.Z.'s type laceration and was not below the standard of care for a physician's assistant. Deborah Vergara further opined that a suture passing through the ulnar nerve, in and of itself, is not a breach of the standard of care, and she was not aware of any textbooks for physician's assistants that prohibited ever placing subcutaneous sutures in a laceration. Dr. Charles Eaves, D.O., an expert in emergency medicine and an expert in supervising physician's assistants and who also has been the supervising doctor of South Florida Baptist Hospital for the past three years, opined that Respondent's placing subcutaneous sutures in a palmar laceration was absolutely within the standard of care. Dr. Eaves further opined that Respondent's entries in D.Z.'s medical records were within the standard of care. Dr. Barry Solomon, Board Certified expert and employed by the Physician Health Care Alliance in Clearwater, Florida, after review of all of D.Z.'s medical records from South Florida Baptist Hospital, the Administrative Compliant filed in this case, Dr. Maddalon's deposition, and records from Brandon Regional Medical Center, gave his opinions in the following areas: Protocol of supervising physician and physician's assistants working in specific areas of medicine. According to Dr. Solomon, physician's assistants generally operate with relative autonomy, based upon the experience of the assistant and the confidence of the supervising physician. Physician's assistants see low acuity patients, leaving the physician to see high acuity patients. Physician's assistants do check with the physician on duty as they proceed through treating a patient, checking to make sure what they are going to do is appropriate and have the physician review and sign the chart as the patient is being made ready for discharge. Protocol for physician's assistants suturing palmar lacerations. Dr. Solomon opined that Respondent's conduct when presented with a patient with a palmar laceration in a subcutaneous area with an abnormal, complex laceration, and after assessment for nerve damage, tendon damage, bone injury, and after obtaining an x-ray which was reviewed by the emergency room physician at the time, and then proceeding to place a two- layer closure consisting of four subcutaneous sutures and eleven external sutures to close the wound, was within the standard of care of physician's assistant, in this case, the Respondent. Dr. Solomon further opined that there is nothing wrong with placing subcutaneous sutures in a hand laceration and there is always a risk, with a deep wound that nerves, blood vessels, arteries and veins could potentially be hit or sutured. This risk is a recognized complication when one places subcutaneous sutures in that (hand) part of the body. He concludes that Respondent practiced within the physician assistant's standard of care in her subcutaneous suture treatment of Patient D.Z.'s right hand. Petitioner has failed to provide the opinion of an expert that establishes a standard of care for an experienced physician's assistant; has failed to provide evidence of standard of care for maintaining medical records; and has failed to provide an expert opinion in support of the allegation that Respondent's treatment of D.Z.'s right hand laceration fell below a physician's assistant standard of care for treatment of hand lacerations. The testimony of Dr. Charles Eaves, Dr. Barry Solomon and Deborah Vergara is credible in establishing that Respondent, Dien Duong, actions were not violations of Subsection 548.331(1)(m) and 488.331(1)(t), Florida Statutes.
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 Respondent not guilty of violating Subsections 458.331(1)(m) and (t), Florida Statutes. DONE AND ENTERED this 2nd day of May, 2002, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 2nd day of May, 2002.
The Issue The issue in this case is whether Petitioner is entitled to an award of attorney’s fees and costs pursuant to Section 57.111, Florida Statutes (2007).1
Findings Of Fact On November 2, 2006, the Department filed with the Board of Medicine a one-count Administrative Complaint against Dr. Thompson, alleging that Dr. Thompson violated Subsection 458.331(1)(t), Florida Statutes (2003). The Administrative Complaint was based on a probable cause finding by the Probable Cause Panel of the Board of Medicine (Panel) on October 27, 2006. The Panel included two physicians. Prior to the meeting of the Panel on October 27, 2006, the members of the Panel received the following materials on the cases to be considered: “the complete case files, including any patient medical records, expert opinions, if any, any materials supplied by the licensee or their counsel” and a draft of the Administrative Complaint. The file on Dr. Thompson included the investigator’s file; the expert opinions of Thomas F. Blake, M.D., F.A.C.S.; Dr. Blake’s curriculum vitae; medical records for the treatment of T.C.; and letters from Bruce M. Stanley, Sr., counsel for Dr. Thompson, along with a draft of the Administrative Complaint. At the Panel meeting, the members indicated that they had received the materials with sufficient time to review and familiarize themselves with the materials. The Panel members did not find any problems with the materials such as missing pages or illegible copies. Additionally, the panel members indicated that they had no conflict of interest or prior knowledge of the cases before them that would make it inappropriate to deliberate and vote on the issues. In the case of Dr. Thompson, the Panel was supplied with expert opinions from Dr. Blake. Dr. Blake was a diplomat certified by the American Board of Obstetrics and Gynecology, a fellow of the American College of Surgeons, and a fellow of the American College of Obstetricians and Gynecologists. By letter dated December 20, 2004, Dr. Blake rendered the following opinion concerning the care provided by Dr. Thompson: Thompson, M.D. fell below the standard of care by abandoning a patient under general anesthesia and leaving the facility to attend to another patient. However, there were no complications or injury to either patient. The potential problem would be that he would unexpectedly be confronted with complications in the delivery. This could detain him for a prolonged period of time and place the patient under anesthesia in jeopardy of having to have the anesthesia discontinued and subjecting her to further risks. By letter dated December 29, 2004, the Department requested clarification on the issue of whether there were any identifiable deficiencies or problems with the medical records that were maintained by Dr. Thompson. Dr. Blake sent an addendum to his report dated January 11, 2005, in which he gave the following opinion: Medical records utilized in the treatment of the patient are complete and justify the treatment. There are no identifiable deficiencies or problems with the medical records maintained by the subject. At the Panel meeting, an attorney for the Department summarized the case against Dr. Thompson as follows: Patient T.C. presented to the surgery center for several gynecological procedures. While T.C. was under general anesthesia, the Respondent physically left the surgery center to attend to another patient in another building. Respondent delivered a baby of that other patient. T.C. was left under the care of a certified registered nurse anesthetist. After returning from delivering the child, Respondent finished the gynecological procedure. The Department is charging a violation of Section 458.331(1)(t), for violation of the applicable standards of care by leaving T.C. for several minutes in the middle of surgery and in between procedures while she was under a general anesthesia, by failing to notify the patient that Respondent had left and by failing to note in the medical record that Respondent had left the building. The Panel members discussed the case against Dr. Thompson during the meeting and voted on the case, finding there was probable cause to believe a violation had occurred. The findings of the Panel resulted in the issuance of the Administrative Complaint. The case was received by the Division of Administrative Hearings on February 8, 2007, for assignment to an Administrative Law Judge to conduct the final hearing. The Department retained another expert, Jose H. Cortes, M.D., F.A.C.O.G, to provide an opinion concerning Dr. Thompson’s actions relating to the treatment of T.C. By letter dated February 27, 2007, Dr. Cortes opined that Dr. Thompson fell below the standard-of-care while attending T.C. by leaving the operating room and going to another building to attend to another patient. Dr. Cortes was also of the opinion that Dr. Thompson did not adequately maintain the medical records for T.C. by the following actions: The departure from the normal course of surgery such as leaving the operating room was not documented by the attending physician, the outpatient establishment nursing staff, nor the anesthesia attending or nurse anesthetist. A signed consent form not available. * * * As the record documents the evaluation of 07/18/03 and 08/05/03 by the Physician Assistant describes the patient’s complaint and ultrasound study review respectively. The blood count presented from 07/18/03 shows a Hemoglobin of 13.6 gms and Hematocrit of 40.1 percent with normal indices, a pelvic ultrasound which documented fibroids of less than 2.1 cm in size each. With the above findings a conservative management strategy is usually employed initially and the patient is followed prior to recommending any surgical procedure unless declined by the patient. However, all of this has to be documented as recommended by the literature and agencies which review patient care and guidelines such as KePRO. On July 10, 2007, the Department filed a motion to amend the Administrative Complaint, which motion was granted by Order dated July 13, 2007. The Amended Administrative Complaint added a count alleging a violation of Subsection 458.331(1)(m), Florida Statutes (2003), alleging that Dr. Thompson: [F]ailed to keep legible medical records justifying the course of treatment by failing to document in T.C.’s medical records that he left the building during the procedures he performed on T.C. on or about September 11, 2003, and/or by failing to document any discussion with T.C. about alternative treatment options such as discontinuing oral contraceptives, a formal dilation and curettage, and/or the use of a Mirena IUD to address T.C.’s problems or concerns. The final hearing was held on July 27, 2007. A Recommended Order was entered on October 31, 2007, recommending that a final order be entered finding that Dr. Thompson did not violate Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes (2003), and dismissing the Amended Administrative Complaint. A Final Order was entered on December 18, 2007, adopting the findings of fact and conclusions of law of the Recommended Order and dismissing the Amended Administrative Complaint against Dr. Thompson. The parties have stipulated to the reasonableness of the fees and costs claimed by Dr. Thompson. Dr. Thompson has incurred $34,851.00 in attorney’s fees and costs. The parties have stipulated that Dr. Thompson is a prevailing small business party and that Respondent is not a nominal party to this action.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Board of Medicine, was the state agency responsible for the licensing of physicians and the regulation of the medical profession in Florida. Respondent is licensed as a physician in Florida, holding license # ME 0038234. His specialty is orthopedics but he is not Board certified in that field. Respondent practices medicine, specializing in orthopedic surgery with emphasis on the spine, at the Gulf Coast Orthopedic clinic in Hudson, Florida. Among the procedures he has performed at times pertinent to the issues herein are percutaneous lumbar foraminotomy, also known as foraminectomy or foraminostomy, (PLF); percutaneous cervical discectomy, (PCD); and percutaneous cervical foraminotomy, (PCF). A PLF is an arthroscopic surgical procedure wherein instrumentation introduced through a succession of progressively larger cannulae via a posterolateral approach to the lumbar spine is utilized to remove spurs which have formed at the area of the neural foramen. A PCD involves a similar introduction of instrumentation via an anterolateral approach to the cervical spine to remove disc material from a cervical disc for the purpose of decompressing the nerve root at the corresponding level. A PCF involves a similar introduction of instrumentation via an anterolateral approach to the cervical spine to remove spurs which have formed at the area of the neural foramen at the corresponding level. The three procedures referred to above, the PLF, the PCD and the PCF, are not commonly used or widely performed in the field of orthopedic surgery in the United States. Petitioner contends they are experimental procedures. Petitioner contends that a procedure whose safety and efficacy have not been established is experimental. It asserts that physicians performing procedures whose efficacy and safety have not been established must specifically advise a prospective patient on whom such procedure is anticipated to be done of the experimental nature of the procedure as a part of obtaining informed consent prior to the procedure. However, the efficacy and safety of a procedure are not, by themselves determinative of experimentation. PCD's are a logical extension/evolution of techniques that are already in use. They are being done in various places throughout the world, including the United States, and insurance companies have, in the past, paid for both PLDs, conceded by the Board to be non-experimental, and PCDs. The instant procedures in issue, including PLFs, which are done by physicians around the world, and the PCFs are not radical departures from present concepts. Though innovative, they are the natural evolution of existing techniques and procedures. For example, chemonucleolysis, recognized by the medical profession as non-experimental, is a percutaneous procedure in which enzymes are injected into the intervertebral disc in order to dissolve it. There is little difference between this procedure, which has been used for approximately ten years and the PCD, save the injection of the enzyme. Another percutaneous procedure which is widely done is the use of the nucleotome, a reciprocating suction cutter consisting of a steel tube with a spinning blade. This is not considered by the medical profession to be an experimental procedure. To be sure, Dr. Abram, a Board certified orthopedic surgeon with extensive experience in treating spinal pathology, is the only expert witness who practices in Florida. He has, however, by his own admission, not done any percutaneous or arthroscopic procedures involving the back or neck. On the other hand, Respondent's experts, Dr. Gristina, also a Board certified orthopedic surgeon, but who is not licensed in Florida, has extensive experience in orthopedic surgery. He was formerly Associ ate Professor of orthopedic surgery and associate to the chairman of that department at New York University Hospital; he was chairman of the Department of Orthopedic Surgery at Bowman Gray Hospital at Wake Forest University; and at present he is President and Senior Scientist at the Medical Sciences Research Institute and practices orthopedic surgery in northern Virginia. For the year just prior to this hearing, he was associated with the Northern Virginia Spine Institute, and though he has not been lead surgeon in the near term, he has associated with the director of the institute in the performance of major spinal surgery. Under the circumstances, as a scientist his opinion as to what constitutes an experimental procedure and what is mere innovation is pertinent to the resolution of that issue. Dr. Sherk, testifying for the Respondent, is a Board certified orthopedic surgeon and professor of surgery and chief of the division of orthopedics and rehabilitation at the Medical College of Pennsylvania. He is familiar with and has performed percutaneous procedures on the spine, most specifically chemonucleolysis and laser discectomy, and is familiar with Dr. Bonati and the percutaneous procedures he performs from having heard Respondent's presentations at international conferences on orthopedics. As a practitioner and academician, his opinion regarding the experimental nature of the procedures in issue is pertinent. Dr. Hopkins, a Board certified orthopedic surgeon, came to percutaneous disc surgery through the microdiscectomy process and the percutaneous laser procedure which he still uses. He also has performed in the neighborhood of two hundred percutaneous disc surgeries, about half with the nucleotome and half with laser. He has done percutaneous foraminectomy procedures. Some time ago, while working for a laser company in Minneapolis, he became aware of Respondent's practice in percutaneous disc surgery. As a result, he came to GCOC on two occasions and observed Respondent perform the procedure on both lumbar and cervical discs. He has presented papers on percutaneous disc surgery at international conferences and gave a course on percutaneous procedures at the American Academy of Orthopedic Surgery in San Francisco approximately two years ago. Taken together, and with all due respect and credence being afforded the opinion of Dr. Abram, the evidence of the experimental nature of the PLF, the PCD and the PCF is not persuasive and it is found that the procedures, though new and innovative, are logical extensions of and new uses of established procedures and are not experimental. Respondent's records reflect that in each case in issue, written consent was obtained from the patient. The records also reflect that each patient was informed about the surgery, the pathology and the treatment to which the patient had agreed. An informed consent was also obtained by the anesthesiologist. Under the circumstances, it having been found that the percutaneous procedures are not experimental procedures, the informed consent obtained by the Respondent was adequate. Clearly, Dr. Bonati's clinic is very well organized. As explained by Respondent and various members of his staff, once Respondent recommends surgery, the patient is given printed brochures and materials which explain the proposed procedure. If the patient is unclear as to the nature of the procedure or has any questions about it, he or she is given the opportunity to voice his or her concerns either to Respondent or to a nurse, and no further action is taken unless all questions are answered to the satisfaction of the patient. Each patient is also given a video tape describing the procedure to be performed, and once the tape is viewed by the patient, further opportunity to ask questions is afforded. Respondent and a nurse meet with each patient so that he can explain to the patient what the proposed procedure consists of, how it is to be performed and the risk involved. The patient is also advised of alternative methods of treatment which include physical therapy. Each patient is advised that an open procedure is also an alternative to the percutaneous procedure. The patient is under only a local anesthetic during the percutaneous procedure and is aware of what is going on. The patient actually assists the surgeon by reporting feelings and sensations experienced. Respondent claims an anesthesiologist is present in the operating room during the surgery and talks with the patient throughout the procedure. There was no evidence introduced that any patient had ever complained after the procedure that what was done was not what had been explained beforehand. Generally, patients are referred to the in-house physical therapist after surgery, and there was no indication any patient had complained of that either. AS TO THE PATIENT M.A. In August, 1989, Patient M.A., a 21 year old female, presented to the Respondent complaining of neck and back pain. Respondent had the patient undergo an MRI on the area. On September 12, 1989 he informed her that the MRI studies revealed posterior disc bulge at C3/C4 through C6/C7 levels, with the largest bulging at C4/C5 through C5/C6 levels. Additional MRI studies were done of the patient which, on November 17, 1989, Respondent interpreted as showing a grade II bulging at the C5/C6 and C6/C7 levels. On or about December 5, 1989, Respondent performed a PCD on this patient for a grade II bulge at the C5/C6 level on the left. Further MRI studies performed on this patient on or about October 30, 1990, indicated there was no change in the bulge at the C5/CB level as a result of Respondent's surgery. As a result, the Board's expert concluded that the surgery performed on this patient by the Respondent was not needed because the MRI's failed to show a condition requiring surgery and Respondent incorrectly interpreted them to indicate they did. The evidence shows, however, that in her visits to Dr. Bonati, the patient complained of pain in an area associated with the 6th nerve root, and evidence of the emergency room visit she made refers to a diagnosis of possible 6th nerve root involvement. Respondent's medical records for this patient reflect that before he recommended surgery, he waited out a period of conservative non-surgical treatment which included physical therapy. He also had her undergo another MRI on November 17, 1989, before the surgery, which showed a bulge at C5/C6. Respondent believed this bulge could be creating all the symptoms being experienced by the patient. In light of this additional evidence, to which Petitioner fails to refer in its Proposed Findings of Fact, it cannot be reasonably be found that the evidence of record is clear and convincing that Respondent performed unnecessary surgery. AS TO THE PATIENT R.L. On or about May 1, 1990, R.L., a 36 year old male, was seen by Dr. Jeffrey S. Walker, a Board certified neurosurgeon for evaluation of neck and back injuries sustained in a then-recent motor vehicle accident. Dr. Walker had this patient undergo an MRI which was interpreted by a Board certified radiologist as showing no large disc herniations and only minimal posterior bulging of the C4/C5 disc associated with degenerative disc disease. As a result of this test and interpretation, Dr. Walker diagnosed the patient as having severe cervical and lumbar strain with no evidence of radiculopathy or myelopathy. Radiculopathy is disease of the spinal nerve root, and myelopathy is a disturbance or disease of the spinal cord. Dr. Walker concluded that this patient's condition did not require surgery and recommended a conservative, non- surgical treatment. Nonetheless, on June 25, 1990, this patient went to see Dr. Bonati complaining of persistent neck and back pain. On this visit, the patient showed Dr. Bonati the MRI taken for Dr. Walker on May 31, 1990. When Respondent reviewed this MRI he noted a bulging disc at C4/C5 and recommended the patient undergo a PCD at that level. Before any surgery was done, however, another MRI was done on June 26, 1990 which Respondent interpreted as showing a 1 mm posterior disc bulge at L4/L5 and a 2 mm bulge at L5/S1, and as a result, Respondent recommended a PLD also be done. On July 12, 1990, Dr. Bonati performed a PCD on this patient at C4/C5 left, and on July 31, 1990 he also performed a PCD at C4/C5 right. Thereafter, on August 21, 1990, Respondent performed a PLF at L5/S1 on this patient. While the Board claims this was done to decompress the S1 nerve root, both the Board and Dr. Bonati indicate it is impossible to decompress the S1 nerve root by a foramenectomy at that level. The Respondent claims the procedure was done to remove the pressure on the L5 nerve root, and this was deemed possible by the testimony of Dr. Sherk. This would seem to be a more accurate description of what was done. In any case, Dr. Bonati also performed a PLD at L5/S1 right that same day in order to relieve the pressure on the S1 nerve root. In short, taken together, the evidence indicates that the surgery on the left was to relive pain on the left side and that on the right to relieve pain on the right side. There is a discrepancy in Respondent's records relating to the above surgery wherein left side pain is indicated where right side pain was intended. A review of these records, however, reveals that the patient complained of pain on both sides from the very beginning and clearly traces the course of pain from the first visit through the surgeries. The Board contends that Respondent failed to correctly interpret the MRIs done on this patient. It asserts these MRI's, when coupled with the patient's complaints, fail to indicate a need for surgical intervention and that Respondent's subsequent surgery performed on the patient was, therefore, inappropriate. This conclusion was stated by the Board's expert, Dr. Abram, who cited Respondent's own publications to the effect that a PLD is not indicated until a disc bulge is 4 mm or greater. Apparently Respondent had taken the position that a disc bulge of 3 mm or less does not merit surgery. It would appear Respondent's published indications also call for a certain amount of non- operative treatment to be provided, as well. It must be recognized, however, that there can be no hard and fast exclusionary rule regarding bulge size when determining whether surgery should be done. In the instant case, the records show that the patient continued to report pain which increased and diminished in cycles. The size guidelines are but one indicator of the need for surgery and Respondent cannot be faulted for doing surgery on a bulge smaller than that noted in his guidelines when other factors are present which indicate surgery is appropriate. AS TO THE PATIENT E.M. On or about April 4, 1991, Respondent saw patient E.M., a 51 year old male, who complained of pain in the lower back, the hip, groin and sciatic areas. Respondent had the patient undergo MRI studies which he interpreted as showing bulging discs at L4/L5, L5/S1, C4/C5 and C5/C6 levels. As a result of these indications, Respondent recommended the patient undergo both PLD and PCD procedures. Thereafter, on May 9, 1991, Respondent performed a PLF on this patient at L4/L5 left and a PLD at L4/L5 left. On June 19, 1991, he performed a PLF at L3/L4 left. He then performed a a PCD on this patient at C4/C5 left on July 1, 1991, and on July 18, 1991, performed a PLD at L5/S1 left. Finally, on August 6, 1991, he also performed a PCD at C5/C6 right on patient E.M. The bulges at C4/C5 and C5/C6 were categorized by the Respondent as grade II bulges. Respondent has previously stated that grade II bulges are normal pathology for which surgical treatment is not indicated. He performed three PLD procedures on this patient on three separate occasions rather than performing them simultaneously, and he performed the two PCD procedures separately rather than performing them simultaneously. The Board claims that to do this was inappropriate and constituted exploitation of the patient for financial gain. Dr. Gristina, however, indicates an alternative way of looking at the situation. He suggests that Dr. Bonati was following a plan to relieve the patient's symptoms utilizing the least invasive procedure available. Gristina suggests that Bonati's plan was to take the relief step by step, doing only so much surgery as was anticipated by him to be necessary to relieve pain. That a procedure was needed in each of five separate locations is unfortunate but not clearly shown by the Petitioner's evidence to be unnecessary. Petitioner must present evidence to show clearly that Respondent's actions were inappropriate. Petitioner's expert opinion must be considered, however, in light of the expert testimony to the contrary. The Board also notes that whereas this patient's medical records indicate the first procedure to be performed on May 9, 1991 was the PLD at L5/S1, in reality the initial PLD was performed at the L4/L5 level and there is no indication in the record as to why this was done. It also contends that Respondent attributed this patient's continued pain in the right leg to the L3/L4 level, and the performance of a PLD at that level without further diagnostic studies was a failure to practice medicine within standards. Dr. Abram also concluded that in light of the above, the Respondent's medical records for this patient, in failing to reflect the justification and appropriateness of his treatment of the patient, were inadequate. It would again appear that Petitioner has not given a complete reading to Respondent's medical records for this patient. His notes regarding the visits the patient made to the office reveal the patient was complaining of pain in the neck, shoulder and arms on both sides and indicate Respondent's concern that the patient might need surgery at L4/L5 as well as at L5/S1, and consent forms were obtained from the patient relating to both areas. An additional claim of Respondent's misconduct is made in regard to the Respondent's failure to do additional diagnostic studies before performing the PLD at L3/L4. However, Respondent contends that, contra to the importance placed on ancillary tests, he considers clinical examination of the patient and the patient's history as more significant. This position would appear to be supported by the testimony of Dr. Hopkins who opined that where, after a surgery has been done, if the patient is able to describe his or her condition, and nothing happened in the interim to cause the doctor to suspect any other problems, he would proceed without subjecting the patient to additional diagnostic procedures. All matters being considered, this would appear to be the more conservative approach. AS TO THE PATIENT P.H. Respondent first saw Patient P.H. in January, 1989 at which time he ordered an MRI be done which was interpreted as showing disc degeneration at L5/S1. When this was considered along with the patient's history, going back to 1970, of two disc removals, three spinal fusions and a laminectomy without relief, Respondent concluded a less conservative approach was demanded. Thereafter, on January 30, 1989, Respondent performed both a PLD and a PLF on this patient at L3/L4. No evidence was presented to clarify the apparent level discrepancy. The medical records indicate that after this surgery, Respondent prescribed Keflex, an antibiotic, and Colchicine, a gout treatment, for the patient. According to Dr. Abram, neither medication is justified in the medical records. The use of an antibiotic after surgery is not at all unusual nor inappropriate, however, especially in light of the fact that the surgery was done on an outpatient basis and the patient did not remain in the hospital, under observation, for a period of recuperation after the procedure. As to the Colchicine, a careful examination of the records pertaining to this patient reveals that a prior administration of the substance was indicated, and even Dr. Abram admitted that this drug could properly be used to treat back pain. The use of neither substance, therefore, was inappropriate. One year later, the patient again came to Respondent complaining of foot paralysis, and on February 1, 1990, Respondent performed a PLD on the patient at L4/L5. Twenty days later, on February 20, 1990, Respondent performed a repeat PLD on the patient at L4/L5. In the interim between the February 1 and February 20 procedures, notwithstanding Petitioner's contention that Respondent did not perform any diagnostic studies to determine whether further surgical intervention was necessary, the records indicate Respondent had clinical testing of the patient done on February 7, 1990, and a Physical Assessment Test was conducted which showed several anomalies which Respondent correlated to the MRI findings. Petitioner also claims that surgery at the L4/L5 disc space cannot treat the L5 nerve root compression that Respondent's tests showed in this patient. Both Dr. Bonati and Dr. Gristina agree, however, that the surgeon can reach the L5 nerve root from the L4/L5 disc space. This opinion by Dr. Gristina would apply equally as well to arthroscopic surgery as practiced by Respondent as to the more classical and conservative open procedures more widely done. Respondent billed the patient for all three surgeries performed. Evidence introduced at hearing, in the form of the opinion testimony of Dr. Abram, would seem to indicate surgery was not appropriate for this condition, and that the performing of the three surgeries was exploitation of the patient for financial gain. He also is of the opinion that the medical records fail to justify the course of treatment the Respondent rendered this patient. However, the evidence of record tends to indicate that a second surgery at a place where surgery has already been done is not unusual. Symptoms can recur and problems, thought to be resolved, can again surface. The evidence indicates that this patient had very little relief from discomfort and, in fact, the symptoms persisted for three weeks after the initial surgery. When results obtained from surgery do not produce an expected change in the patient's symptomology, Dr. Gristina concludes it is logical to again operate at any time after a procedure has been done. AS TO THE PATIENT M.M. Respondent first saw patient M.M. in July 1990 for symptoms of a back injury which he attributed to the S/1 nerve root and which had been present for over one year. The patient history for this patient reveals that she had approximately fifteen months without relief from pain before seeing Respondent and indicate that after Respondent had treated her for a week to ten days, the symptoms changed which caused Respondent to then attribute the cause to the L5 nerve root. An MRI showed a 4 mm bulge at L4/L5, and on September 6, 1990, Respondent performed both a PLD and a PLF at L4/L5. More than six months later, on May 7, 1991, M.M. went to Dr. Zubillaga, a Board certified neurologist, for treatment of pain running from the head to the sacrum. Dr. Zubillage took a complete patient history and reviewed the MRIs which had been taken by or for the Respondent. His examination indicated to him that no surgical intervention was indicated, and he recommended a more conservative treatment including stretching exercises and physical therapy. Dr. Abram concluded that Respondent's medical records for this patient contain inconsistencies in the examination and diagnostic tests. The patient's symptoms and the findings of diagnostic imaging should match up before the patient is offered surgical treatment. In the instant case, the records indicate a strength deficit of 26 percent at S1 and an L5 deficit of 16 percent, yet the treatment is directed against the L5 nerve root, even though the initial impression is that it was the S1 nerve root that was compressed, and Dr. Abram is of the opinion that is below the acceptable standard of care. Unexplained, it well may be. AS TO THE PATIENT D.R. On or about July 18, 1990, Dr. Bonati performed both a PLD and a PLF at L5/S1 on this patient for back and leg pain but the patient failed to improve after the surgery. Thereafter, on October 24, 1990, Respondent performed both a PLD and a PLF on the patient at L4/L5. Still later, on March 13, 1991, the patient saw Dr. Thomas Freeman, a Board certified neurological surgeon, who reviewed the patient's medical records, the discogram and the two MRI scans which had been done by Respondent both before and after the July 18, 1990 surgery, none of which showed an extruded disc. By the same token, a previous MRI done by a prior treating physician, Dr. Feldman, failed to disclose it as well. According to Dr. Freeman, the two MRI's done by Respondent were essentially identical with no change in the patient's condition following the surgery. Based on his examination of the patient, Dr. Freeman diagnosed the patient as having a large extruded disc at L5/S1 which, he claims, was shown in the MRI's taken by the Respondent. The evidence is in conflict on that point, however. It is Dr. Freeman's professional opinion that extruded discs are normally very difficult to remove by a percutaneous procedure. In fact, Respondent's own publications indicate that a percutaneous procedure is contraindicated in the case of an extruded disc. As a result of his evaluation, Dr. Freeman subsequently performed open back surgery on this patient removing the discs at L4/L5 left and at L5/S1 left and right. It is Dr. Abram's position that Respondent's failure to do an open procedure instead of a percutaneous procedure in this case, especially after the first procedure was unsuccessful, was below acceptable standard. It would appear, however, that none of the physicians who saw this patient were able to make a positive determination that there was an extruded disc. There is a difference between an extruded disc which is still in contact with the annulus and one which has broken free from the annulus and extruded through the posterior longitudinal ligament to enter the spinal canal. It is this latter situation which Respondent's writings denote as contraindication to a percutaneous procedure. The disc had not extruded in the instant case and, therefore, a percutaneous procedure was not necessarily contraindicated. Dr. Abram also asserts that Respondent's medical records for this patient contain a discrepancy between the admissions form and the general rule regarding the gravity and location of the patient's pain, which, he claims, is considered below standard. In fact, the admission form is set up so that the patient can describe the current severity of the leg pain and the back pain independently of each other. It does not attempt to compare them. AS TO THE PATIENT L.Q. Sometime between January and April, 1990, the patient, L.Q. saw Respondent complaining of pain in the neck and arm. Respondent took an MRI of the patient which indicated a grade I impression of the thecal space at both the C4/C5 and the C5/C6 levels. Even though Respondent's own publications regarding the PCD suggest that a grade I impression does not require surgery, Respondent recommended the patient undergo a PCD at C4/C5. Before agreeing to the surgery, however, on April 30, 1990, prior to what was described as the onset of significant pain compromising the 5th nerve root, the patient went to see Dr. Michael Slomka, a Board certified orthopedic surgeon who, without an MRI or CT scan, upon examination, found a normal neurological evaluation and a normal cervical spine x-ray. Based on his findings Dr. Slomka saw no basis for surgery and recommended a program of activity and rehabilitation for the patient. Thereafter, however, the patient returned to Respondent on May 14, 1990 and Respondent did a PCD at C4/C5. While Petitioner claims there was no justification shown for the surgery completed in this case, there is evidence in the patient records that the patient underwent an extended period of constant pain in the shoulder, injections into the shoulder by another physician prior to the visit to Respondent, continued medication for the discomfort claimed, and other symptoms and discomfort in an area consistent with the diagnosis, which were supported by a physical assessment test and consistent with the MRI. These factors may well justify surgery when all else has failed. The Petitioner asserts that Respondent's medical records do not reflect justification for the surgical intervention, but the above information disputes that conclusion. AS TO THE PATIENT R.H. This patient was seen by Respondent several times between July, 1991 and April, 1992 for treatment for neck and shoulder pain. An MRI of the patient ordered by the Respondent was interpreted by him as showing a grade I impression at both C3/C4 and C4/C5, and a grade II impression at C5/C6. On December 4, 1991. Respondent did a PCD on this patient at C5/C6, but the medical records maintained by Respondent on the patient show no improvement following the surgery. The Respondent's medical records relating to this surgery do not reflect he had any discussion with the patient before surgery about the risks or benefits of surgery, the anticipated outcome or alternative treatment options. On May 30, 1992, the patient went to see Dr. Michael Piazza, a Board certified orthopedic surgeon who also took an MRI of the patient. This scan revealed very mild degenerative disc disease at C5/C6 without any evidence of disc herniation or other operable lesion. He could see no indication for or reason to do surgery on the patient. The patient was 54 years old when she was seen by Dr. Piazza. The doctor indicated that approximately 90 percent of the adult population have as much arthritis in the neck by that age as does this patient. Therefore, he recommended non-operative treatment, including therapy, and the patient's condition improved markedly with this regimen. Here again the Respondent contends that Petitioner draws a misleading conclusion from the evidence and attempts to minimize the severity of the patient's long-term complaints of pain, failed conservative treatment and disc bulge which is attributed to arthritis. Respondent also contends that the use of a minimally invasive percutaneous procedure was appropriate in light of the circumstances, especially in light of the fact that there was a four month hiatus between the cited entries in the medical records. These contentions by Respondent are supported by the testimony of his experts. Respondent's records regarding this patient, are less than appropriate, however. They reflect the patient had full range of shoulder motion, albeit with pain, but also contain a diagnosis of frozen shoulder and capsulitis. This would indicate a marked reduction in the patient's range of shoulder motion. The records also indicate a degenerative labral tear in the biceps tendon, but there was no such tear indicated on the MRI. This tear was, however, located by Respondent through a diagnostic arthroscopy. In Dr. Abram's opinion, these inconsistencies rendered the records below acceptable standard. AS TO THE PATIENT O.J.P. This patient was seen at the Respondent's clinic, by Dr. Merken, on April 14, 1992, for an evaluation of the patient's strength related to the neck. The doctor's opinion was that the patient's neck strength was normal though, even as Dr. Abram admits, he found abnormalities of the neck resulting in painful flexion, lateralization and extension. Several days later, the patient underwent several MRIs which covered the left shoulder and the cervical and lumbar spine in which Respondent saw bulges of 2 mm, 3 mm, and 4 mm in the lumbar spine. When, on May 12, 1992, the Respondent discussed the results of the MRI's with the patient he noted a significant weakness in the patient which had not been noted by Dr. Merken earlier. Even though the patient's medical record does not reflect any long-standing weakness or participation in an extensive rehabilitative program, Respondent nonetheless recommended the patient undergo a PCD at C6/C7 left and a PLD at L4/L5 left. The surgery was not done, however. Instead, on July 16, 1992, the patient went to see Dr. Glen Barden, a Board certified orthopedic surgeon, because of persisting neck and back pain. Dr. Barden did an examination of the patient and reviewed Respondent's medical records on her. Dr. Barden's diagnosis was that the patient exhibited mild symptoms of disc disease without neurological deficits. He concluded that surgery was not needed or appropriate for the condition at that time but recognized that surgical intervention to the neck might be required. In fact, Dr. Barden's records show he found " cervical intervertebral disc disease, moderately severe, involving C4-5, C5-6. C6-7 and C7-T1, as well as degenerative lumbar disc disease", among other problems, all of which, Dr. Barden admits, can cause pain and restriction of motion without a neurological deficit. As such, surgery can be justified even where there is no neurological deficit. Notwithstanding Petitioner claims the medical records kept by Respondent on this patient did not reflect any long-standing weakness or conservative care, the patient history clearly reflects numerous complaints of pain and limitations on movement following a 1978 car accident. In addition, the records reflect the patient had been taking medication and received chiropractic treatment in addition to the physical therapy prescribed by Respondent prior to surgery.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Administrative Complaints in DOAH Cases 94-1866 and 94-1867, except for Counts Six and Fifteen of Complaint 94-1867, of which Respondent, ALFRED O. BONATI, should be found guilty, be dismissed, and that his license be reprimanded. RECOMMENDED this 21st day of August, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 21st day of August, 1995. APPENDIX TO RECOMMENDED ORDER IN CASES NOS. 94-1866 AND 94-1867 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: & 2. Accepted and incorporated herein. 3. - 7. Accepted and incorporated herein with the addition, as to #7, of the phrase, "in the U.S." 9. - 8. Accepted and incorporated herein. 11. Accepted and incorporated herein. 12. & 13. Accepted and incorporated herein. 14. & 15. Accepted. 16. & 17. Accepted. 18. - 21. Accepted. 22. - 24. Accepted and incorporated herein. 25. Accepted. 26. Rejected as not proven. 27. - 29. Accepted. 30. - 35. Accepted and incorporated herein. 36. - 38. Rejected as not proven by clear and convincing evidence. 39. Rejected except for last sentence which is accepted. 40. Accepted. 41. & 42. Rejected as not proven. 43. - 53. Accepted and incorporated herein. 54. Accepted that surgery was done, but not for the purpose stated. 55. Accepted and incorporated herein. 56. Accepted and incorporated herein. 57. - 62. Rejected as not proven. 63. Rejected as not proven. 64. Accepted as to what record states, but rejected as to the lack of a complaint on the right side, as contra to the weight of the evidence. 65. Rejected as not proven. 66. - 68. Accepted but considered of little probative value. 69. Accepted. 70. & 71. Rejected as not proven. 72. & 73. Accepted and incorporated herein. 74. & 75. Accepted and incorporated herein. 76. - 80. Accepted and incorporated herein. 81. - 84. Rejected as not proven. 85. Accepted. 86. - 92. Rejected as not proven. 93. Accepted. 94. - 97. Rejected as not proven, and 97 is duplicative of 84 and 84. 98. - 104. Accepted and incorporated herein. 105. - 109. Rejected as not proven. 110. Accepted and incorporated herein. 111. Rejected as unproven. 112. & 113. Accepted and incorporated herein. 114. Rejected as unproven. 115. - 117. Accepted. 118. & 119. Rejected as unproven. 120. Accepted. 121. Rejected as unproven. 122. - 128. Accepted and incorporated herein. 129. - 132. Rejected as unproven. 133. Accepted. 134. & 135. Rejected as unproven. 136. - 148. Accepted and incorporated herein. 149. - 152. Rejected as unproven. 153. - 159. Accepted, but 158 is duplicative of 146 160. & 161. Rejected as unproven. 162. - 168. Accepted and incorporated herein. 169. Rejected as unproven. 170. Accepted and incorporated herein. 171. - 175. Rejected as unproven. 176. Accepted. 177. & 178. Rejected as unproven. 179. - 191. Accepted and incorporated herein. 192. - 194. Rejected as unproven. 195. Accepted. 196. & 197. Rejected as unproven. 198. - 208. Accepted and incorporated herein. 209. - 211. Rejected as unproven. 212. Accepted. 213. Rejected as unproven. FOR THE RESPONDENT: 1. - 3. Accepted and incorporated herein. 4. & 5. Accepted and incorporated herein. & 7. Accepted and incorporated herein. Accepted and incorporated herein. & 10. Accepted. 11. & 12. Accepted. - 15. Accepted. 16. - 18. Accepted and incorporated herein. 19. & 20. Accepted. 21. - 23. Accepted and incorporated herein. 24. Accepted. 25. First sentence accepted. Second sentence not proven. 26. & 27. Accepted. 28. Accepted and incorporated herein. 29. Accepted. 30. - 32. Accepted. 33. Accepted. 34. & 35. Accepted since the contrary was not proven. 36. Accepted as represented. 37. Accepted since the contrary was not proven. 38. Accepted that the treatment and records were within standards. COPIES FURNISHED: Britt Thomas, Esquire Natalie Duguid, Esquire Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jonathan W. Lubell, Esquire 750 Lexington Avenue New York, New York 10022 Salvatore A. Carpino, Esquire 8001 North Dale Mabry Highway Suite 301-A Tampa, Florida 33614 Jerome W. Hoffman General Counsel Agency for health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times material hereto, Respondent has been a licensed psychologist in the State of Florida, having been issued license number P4- 0002471 on March 5, 1982. Respondent has been in practice for approximately 16 years, and engages in educational and counseling psychology, rather than clinical or industrial psychology. He is also licensed by the Department of Education as a school psychologist. From October, 1984 until November 21, 1986, E. J. A. was one of Respondent's patients. She began counseling with him for marital problems she was having, and continued counseling with Respondent after her marriage ended in divorce. E. J. A. was a very conscientious patient who always kept her appointments, maintained complete written records of her dreams which she gave to Respondent at each appointment, and expressed no concerns or dissatisfaction about her two years of counseling with Respondent, except for the incident which she testified occurred during her last appointment on November 21, 1986. Up until the last appointment, she testified Respondent made no sexual overtures or improper suggestions. During her counseling, E. J. A. had come to trust Respondent, and had developed an informal, friendly patient-psychologist relationship. E. J. A. had an appointment with Respondent on October 16, 1986, which was without incident. By the middle of November, when he had not heard from her to set up another appointment, Respondent telephoned her at work and requested that she set up another appointment. She agreed and the appointment on November 21, 1986 was scheduled. The November 21 session consisted of a general discussion and review about her two years of counseling. E. J. A. was feeling at the time that she might be ready to end her counseling, although Respondent felt additional sessions, at longer intervals, would be advisable. Counseling sessions were 50 minutes in length, and the November 21 session was routine and without incident until the very end of the session when Respondent and E. J. A. were saying good- bye. As was their usual practice at the end of a session, they both stood up and hugged. According to E. J. A., Respondent then said he wanted her to meet, go out with and have sex with one of his male patients who was having premature ejaculation problems. She testified that Respondent described the male patient as a very good looking Latin man from a wealthy family of Brazilian or Venezuelan origin, who was at home from Purdue law school for the Thanksgiving holiday. E. J. A. testified she asked Respondent why he was asking her to do this, and her testimony was that he said she was a sensitive, caring person who could help this young man. At first she was flattered, and she told Respondent she would think about it and get back with him. She was not initially offended. However, she did not contact Respondent to pursue the matter, and after discussing this with her brother two weeks later, she testified she realized it was unprofessional and immoral, and therefore filed a complaint with Petitioner. Respondent's patient record for E. J. A., after two years of counseling, consists of one sheet of paper with pencil notes on the front and back, as well as statements of Account, some of which have been destroyed or are missing, containing simply the date of her visit, the charge and the same diagnosis on all statements of adult situational disorder with anxiety features. E. J. A.'s dream records which she kept and brought with her throughout counseling were thrown out by Respondent. He testified the dream records were of no value after they had been discussed during a session, and he routinely destroys such notes after discussing them with his patients. His explanation for his own failure to keep detailed patient records was that he had a very good memory and could recall all important matters without written notes. Further, he stated that at one time he had kept voluminous patient notations and found them to be useless. Respondent was interviewed by Petitioner's investigator on or about January 26, 1986 and cooperated fully. After having heard Respondent's testimony at hearing about that interview and his use of the phrase, "I don't recollect," in answer to several questions posed by Petitioner's investigator about his November 21, 1986 session with E. J. A., it is specifically found that Respondent did not admit asking her to have sex with a Latin male patient. Nothing in the record, including testimony about a subsequent meeting between E. J. A. and Respondent on February 1, 1987, constitutes an admission against interest by Respondent concerning this allegation. There is no evidence that Respondent had a Latin male patient, of Venezuelan or Brazilian origin, in November, 1986, nor that he had a Purdue law student as a patient at the time. Respondent denies having a patient that fits the description given by E. J. A.; nor was he counseling a patient with premature ejaculation problems at that time. Nothing in the record rebuts Respondent's apparently sincere denials. The only evidence of unprofessional conduct is E. J. A.'s testimony about the November 21 session, which Respondent has convincingly denied. Respondent has an outstanding reputation as a counseling psychologist in the community. He has counseled hundreds of patients referred to him by three practicing family law attorneys who testified at hearing, and none of those patients has ever expressed any complaints to their attorneys about Respondent. To the contrary, there has been an overwhelming expression of gratitude and satisfaction from these patients to the attorneys who referred them to Respondent. The same three practicing attorneys also testified to seeing Respondent on a professional basis for counseling, and stated their complete satisfaction with, and admiration for, Respondent. During counseling, they testified Respondent took few notes, but he had a complete and astonishing memory. Three medical doctors who have practiced with Respondent, as well as the Chairman of the Department of Rehabilitative Counseling at the University of South Florida, testified that Respondent is an excellent therapist who is conscientious, thorough, caring and highly professional. The deposition of a counseling psychologist who has known Respondent professionally for 16 years was introduced, and supports his reputation for competence and meeting community standards for the profession. After considering all of the evidence, as well as the demeanor of the witnesses and Respondent's excellent reputation in the community, it is found that he did not request E. J. A. to have sex with a male patient and report back to him. He did not commit any act upon his patient, E. J. A., which would constitute sexual misconduct or on consenting experimentation on a human subject. Petitioner presented the American Psychological Association's "Specialty Guidelines for the Delivery of Services by Clinical Psychologists" to establish that the patient records maintained by Respondent concerning E. J. A. were inadequate and failed to meet minimum standards of performance. However, the "Guidelines" specifically state that they "are meant to apply only to those psychologists who voluntarily wish to be designated as clinical psychologists. They do not apply to other psychologists." American Psychologist, Vol. 36, No. 6, p. 640. Since the "Guidelines" specifically guide the specialty practice of clinical psychology only, they are irrelevant to a counseling psychologist such as Respondent, particularly since Respondent has never held himself out as a clinical psychologist in any way. Therefore, Guideline 2.3.4., which requires clinical psychologists to retain patient records for from 3 to 15 years after completion of planned services or last contact, as well as other guidelines concerning patient records, are not relevant to Respondent's practice as a counseling psychologist. According to Dr. Sydney Merin, who was accepted as an expert in psychology, record keeping is always important. Patient records should contain an adequate representation of what went on in each session. Dr. Merin testified that all psychologists are expected to keep adequate patient records, and that Respondent's record on one sheet of paper for counseling with E. J. A. for two years, as well as incomplete Statements of Account, failed to meet minimum standards of performance because they were inadequate. E. J. A.'s dream notebooks had been destroyed, and there is no way to tell from E. J. A.'s records what was discussed, explored, revealed or found in two years of counseling. If Respondent were to die, leave the area, or discontinue his practice, E. J. A. would have no meaningful record of her extensive counseling with him. The testimony of Dr. Fred Dickman, introduced by Respondent by deposition, confirms the testimony of Dr. Merin concerning the importance of keeping adequate patient records. Further, Dr. Dickman testified that at a minimum he keeps a record of each date when he sees a patient, and at least a sentence about each session. Respondent failed to make any notes about what went on in his sessions with E.J.A., other than the date, the charge and diagnosis for insurance billing purposes. He failed to meet the community standard to keep notes of on- going therapy. Although Respondent produced the testimony of three psychiatrists, who were also qualified as experts in the supervision of psychologists, to state that his records for E. J. A. were adequate, this testimony is specifically outweighed by the testimony of Drs. Merin and Dickman since they are both psychologists and, therefore, their testimony is more relevant and persuasive concerning minimum standards of psychology than the testimony of psychiatrists. While these professions may be related, they are separate and distinct, and while adequate patient records of each session may not be required in the profession of psychiatry, they are required in the profession of psychology. Similarly, the testimony of Dr. Calvin Pinkard that the need for notekeeping is debatable is discounted as irrelevant because, although he is an expert in psychology, he was testifying about, and in the context of, teaching students studying to become mental health counselors, not psychologists.
Recommendation Based upon the forgoing, it is recommended that the Board of Psychological Examiners enter a Final Order publicly reprimanding Respondent for the violation of Sections 490.009(2)(q) and (s), Florida Statutes. DONE AND ENTERED this 20th day of July, 1988, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1988. APPENDIX (DOAH Case No. 87-5562) Rulings on Respondent's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Finding of Fact 10. 3-4. Adopted in Finding of Fact 2, but otherwise Rejected as irrelevant. Adopted in Finding of Fact 3. Adopted in Finding of Fact 7. 7-8. Rejected in Findings of Fact 14, 15, 16. Adopted in Finding of Fact 11. Adopted in Finding of Fact 13. Adopted in part in Finding of Fact 13, but Rejected in Findings of Fact 14-16. Adopted in Finding of Fact 13. Rejected since this is a conclusion of law rather than a proposed finding of fact. COPIES FURNISHED: Laura P. Gaffney, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Paul B. Johnson, Esquire P. O. Box 3416 Tampa, Florida 33601 Linda Biedermann Executive Director Board of Psychology Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues in this case are whether Respondent committed violations of Section 458.331(1), (t), (q), and (m), Florida Statutes, justifying the imposition of disciplinary measures against Respondent's medical license, and if so, what penalties should be imposed.
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of medicine in Florida pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes. Respondent is a licensed medical physician in Florida holding license number ME 15595. Respondent received his Florida license in 1970 and at the time of the formal hearing, he had practiced medicine for 42 years. He is Board-certified in Anesthesiology with a Certificate of Added Qualification in Pain Management. He was Board-certified in anesthesiology in 1967 and received his certificate of added qualification in Pain Management when it was first offered in 1993. Respondent first evaluated J.S. on December 11, 1998. At that time, J.S. sought treatment from Respondent for complaints of severe back and leg pain. She had quite a lengthy history of back problems, having suffered falls in 1986 and 1994, and having undergone four previous back surgeries. J.S. had seen various physicians for her complaints, and was on various medications, including Prozac, Klonopin, Prilosec, Premarin, levothyroxine, and hyoscyamine. She reported a history of thyroidectomy due to thyroid cancer, hysterectomy, sinus surgery, and excision of fibromatous tumor from her right shoulder. She also reported a history of seizures. On her initial visit to Respondent's office, J.S. completed a Pain Management Questionnaire. On the questionnaire, she indicated she was often forgetful and suffered from memory deficits and problems with her ability to concentrate. Between December 1998 and July 28, 1999, J.S. was treated about seven times by Respondent for her back pain. The treatment consisted of insertion of an epidural catheter and infusion pump in her back, which would release various medications, for the purpose of relieving her back pain. J.S. often returned to the office for dressing changes, pump refills, and reinsertion of the epidural catheter. These procedures were all completed successfully, without complication. J.S. was very happy with the results, and reported that the medication administered via the pump was her only relief from pain. On July 28, 1999, Patient J.S. saw the Respondent for this same procedure. The evidence is undisputed that this type of treatment by Respondent was medically appropriate to address J.S.'s pain condition. Respondent placed a catheter through a needle, removed the needle, and tunneled the catheter – i.e., placed it underneath the skin in the back of J.S. at the L2-L3 level of her back. Respondent then injected medication, including Marcaine and Fentanyl into the catheter between 11:33 a.m. and 11:45 a.m. Shortly after the Respondent administered the last injection of Marcaine to J.S., she said her right leg was getting numb. Because J.S. stated she had leg numbness, Respondent turned off the pump to prevent the further release of medications into J.S. He then left the room to talk to a new patient. Respondent returned to the room approximately five minutes later upon being informed by his office staff that there was a problem with J.S. When Respondent entered the room, he found that J.S. was pale, unresponsive, and barely breathing; her heart rate was 39. The intrathecal space is the spinal canal where spinal fluid is located. The epidural space is close to the intrathecal space, and it is easy to go from one space to the other when trying to inject within the epidural space. Having Marcaine enter the intrathecal space and having the patient experience a “high spinal” are known complications of the procedure performed on J.S. A “high spinal” can cause significant numbness. As the medication rises up the spinal fluid, it can cause visual dilation, cardiovascular vascular collapse, and respiratory problems. For this reason, the occurrence of a “high spinal” is risky. A physician knows a “high spinal” may be occurring if a patient complains of numbness in the lower extremities. As the medication rises upwards toward the upper extremities, the patient can complain of difficulty breathing, and experience a drop in blood pressure and heart rate. Such patients become obtunded, or unresponsive, requiring resuscitation. It is uncontroverted that J.S. sustained a “high spinal” on July 28, 1999, which is a serious medical complication and life-threatening situation. One of the dangers to J.S. during the time she experienced the “high spinal” was the deprivation of oxygen to her organs, including her brain. Respondent had left the room and did not return until he was notified by office staff of a problem with J.S. As a result, Respondent did not know how long Patient J.S. had been without adequate perfusion of her organs, although he estimated that it could have been anywhere from 30 seconds to two minutes. As depicted in Petitioner's proposed recommended order and undisputed by Respondent, treatment and legend drugs administered to J.S. from about noon on July 28, 1999, until about 6 p.m., when Respondent called for an ambulance, are as follows: TIME (approximately) EVENTS 11:55 am The Respondent began resuscitative efforts on Patient J.S. by administering oxygen via Ambu bag at 6 liters/minute. 11:58 am The Respondent then ordered the nurse to administer 50mg of Ephedrine (a drug used in the treatment of allergies and asthma) and .15 mg of Epinephrine (a potent stimulant of the sympathetic nervous system) to Patient J.S. in the left deltoid region. 12:00 pm The Respondent started an IV of 500 cc of Lactated Ringers (a solution containing sodium chloride, potassium chloride, calcium chloride, and sodium lactate in distilled water used to replenish the body’s fluids and electrolytes) in Patient J.S.’s left elbow at 75cc/hr and inserted a tracheal tube since Patient J.S’s oxygen saturation level was in the 80% range. 12:01 pm The Respondent administered 50 mcg of Epinephrine to Patient J.S. intravenously. 12:35 pm The Respondent administered 5 cc of 2% Lidocaine (a drug used as a local anesthetic and to alleviate irregularities in the force or rhythm of the heart) to Patient J.S. intertracheally. 12:36 pm The Respondent administered 2 cc of 2% Lidocaine to Patient J.S. intravenously. 12:37 pm The Respondent pulled out the epidural catheter from Patient J.S.’s back. 12:38 pm The Respondent administered 50 mcg of Epinephrine to Patient J.S. intravenously. 12:39 pm The Respondent administered 100 mg of Dilantin (a drug used to control seizures) to Patient J.S. intravenously and noted that Patient J.S.’s temperature was 95.6 degrees Fahrenheit. 12:40 pm The Respondent administered 50 mg of Bretylium (a drug used to treat rapid heart rate and irregularities in the rhythm of the heart) to Patient J.S. intravenously and noted that Patient J.S.’s pulse was 150 and her blood pressure was 178/111. 12:45 pm The Respondent administered 50 ml of 8.4% Sodium Bicarbonate solution (baking soda) to Patient J.S. intravenously and noted that Patient J.S.’s blood pressure was 163/89, her oxygen saturation was 99%, and her pulse was 142. 1:00 pm The Respondent tried to start another IV of 500 ml of Lactate Ringers in Patient J.S.’s left foot, but was unsuccessful. The Respondent noted that Patient J.S.’s blood pressure was 96/58 and pulse was 128. 1:08 pm The Respondent administered 200 mcg of Neosynephrine (a decongestant which constricts blood vessels) to Patient J.S. intravenously. 1:15 pm The Respondent started another IV in Patient J.S.’s right jugular vein. 1:45 pm The Respondent noted that Patient J.S.’s blood pressure was 113/71, pulse was 114, and oxygen saturation was 99%. 1:49 pm The Respondent administered 0.1 mg of Narcan to Patient J.S. intravenously. 1:53 pm The Respondent administered 0.1 mg of Narcan (a drug used to reverse the effects of opiods) to Patient J.S. intravenously. 1:54 pm The Respondent decreased the amount of oxygen being administered to Patient J.S. by way of the Ambu bag from 6 liters/minute to 4 liters/minute. 2:00 pm The Respondent discontinued the IV in the right jugular vein because it was found to be infiltrated. 2:01 pm The Respondent administered 200 mcg of Neosynephrine to Patient J.S. intravenously in the left arm and started another IV in the left foot. 2:13 pm The Respondent suctioned Patient J.S.’s trachea and added a second airway. 2:30 pm The Respondent noted that Patient J.S. was breathing on her own, though she was wheezing and having labored respirations; her temperature was 96.1 degrees Fahrenheit, her blood pressure was 100/68, her pulse was 124, and her oxygen saturation was 92%. 2:34 pm The Respondent administered 300 mcg of Neosynephrine to Patient J.S. 2:45 pm The Respondent administered 12 mg of Dexamethasone (a drug used to treat inflammatory disorders) to Patient J.S. intravenously. 2:52 pm The Respondent decreased the amount of oxygen being administered to Patient J.S. by way of the Ambu bag from 4 liters/minute to 1 liter/minute and noted that Patient J.S.’s blood pressure was 109/71, pulse was 126, and oxygen saturation was 94%. 3:00 pm The Respondent pulled the tracheal tube out to 22 cm and re-taped it. 3:35 pm The Respondent administered 3 cc of 2% Xylocaine (a drug used to alleviate rhythmic irregularities in the heart) to Patient J.S. via the tracheal tube. 3:59 pm The Respondent administered 500 mg of Solu-cortef (a drug used to suppress normal immune response and inflammation) to Patient J.S. intravenously. 4:00 pm The Respondent placed a nerve stimulator on Patient J.S.’s right temporal nerve to check nerve response and noted that the patient moved her head toward the right when the nerve stimulator was activated. 4:20 pm The Respondent noted that Patient J.S. was moving all four extremities and opening her eyes on command. 4:50 pm The Respondent administered 2 puffs of Azmacort (a drug used to combat asthma attacks) to Patient J.S. through the tracheal tube. 5:09 pm The Respondent started an IV of 500 ml of Lactated Ringers in Patient J.S.’s left foot. 5:10 pm The Respondent administered 1 mg of Brevibloc (a drug used to lower blood pressure) to Patient J.S. intravenously. 5:14 pm The Respondent administered 1 mg of Brevibloc to Patient J.S. intravenously. 5:24 pm The Respondent administered 250 mcg of Lanoxin (a drug used to increase cardiac output and lower the heart rate) to Patient J.S. intravenously. 5:35 pm The Respondent administered 250 mcg of Lanoxin to Patient J.S. intravenously. 5:36 pm The Respondent administered dura tears ointment to Patient J.S.’s eyes. 5:58 pm The Respondent called 911 for emergency transport of J.S. to the hospital. Following Respondent's 911 call for a ambulance crew to transport J.S. to Fort Walton Beach Medical Center at approximately 5:58 p.m., Emergency Medical Services (EMS) personnel arrived at approximately 6:15 p.m. When the EMS personnel arrived at the Respondent’s office, J.S. was unstable, with a high heart rate of 153, pale, and unresponsive. At approximately 6:40 p.m., J.S. arrived at Fort Walton Beach Medical Center and was admitted to the Emergency Room. Respondent was not allowed to see J.S. at the hospital. As established by testimony of Dr. Patel, Petitioner’s Expert, the Standard of Care required of the Respondent after he administered Marcaine to J.S. and heard her state that her right leg had become numb, was to closely monitor the patient by looking for the signs of a developing "high spinal." Respondent failed to meet the Standard of Care in treating J.S. when he left her in the treatment room with only a licensed practical nurse (LPN) with no specific training in resuscitation or dealing with potential complications arising from the procedure. Additionally, as established by the testimony of Dr. Patel, Respondent failed to meet the Standard of Care when he failed to call in a timely manner for emergency personnel to transport J.S. to the hospital where she would have been better monitored and treated for complications. Instead, he pursued resucitative measures on J.S. for about six hours. A time period which extended about four and one-half hours beyond the maximum time period that Dr. Patel, Petitioner's expert, opined was acceptable. An additional aggravating factor in this matter is Respondent's prior disciplinary history with the State of Ohio received in evidence pursuant to Rule 64B8-8.002, Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That in accordance with Petitioner's disciplinary guidelines, that a final order be entered finding Respondent guilty of violating Section 458.331(1)(t), Florida Statutes; suspending Respondent's license for one year to be re-instated only upon completion of 20 hours of continuing medical education above the minimum required for maintenance of licensure with the area of study for such additional hours to be determined by the Board of Medicine; and imposition of a fine of $5,000. DONE AND ENTERED this 8th day of August, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 2002. COPIES FURNISHED: William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Shirley J. Whitsitt, Esquire James W. Earl, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Jon M. Pellett, Esquire Barr, Murman, Tonelli, Slother & Sleet 201 East Kennedy Boulevard, Suite 1700 Tampa, Florida 33602 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issues in this case for determination are whether Respondent James C. Dozier, M.D., committed the violations of Chapter 458, Florida Statutes (2003), as alleged in an Administrative Complaint filed by the Department of Health on October 3, 2006; and, if so, what disciplinary action should be taken against his license to practice medicine in Florida.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 458, Fla. Stat. Respondent, James C. Dozier, M.D., is, and was at the times material to this matter, a physician licensed to practice medicine in Florida, having been issued license number ME 47971. Dr. Dozier’s mailing address of record at all times relevant to this matter is Indian River Memorial Hospital Department of Emergency Medicine, 1000 36th Street, Vero Beach, Florida 32960. Dr. Dozier is board-certified in Emergency Medicine. Dr. Dozier has previously been subject to license discipline in Agency for Health Care Administration Case Number 93-20295. Patient D.C. On September 3, 2003, Patient D.C. was 49 years of age and obese. He was living a largely sedentary lifestyle, having suffered a work-related spinal injury several years before 2003. D.C. did not work. He was taking methadone, a powerful narcotic painkiller used for long-term, chronic pain relief, daily. As a result of his spinal injury, D.C. spent most of his time at home and did not engage in significant physical activity. On September 3, 2003, D.C. experienced an episode of hard coughing, during which he produced brown sputum. At approximately 9:15 a.m., September 4, 2003, D.C. awoke with sharp, left-sided chest and shoulder pain, and shortness of breath. The pain in his chest was excruciating and he had difficulty breathing. Consequently, his wife, S.C., telephoned 911 and requested emergency assistance at approximately 9:19 a.m. Transport of Patient D.C. to the Hospital. Emergency medical services personnel (hereinafter referred to as “EMS Personnel”), arrived at D.C.’s house at approximately 9:25 a.m., September 4, 2003. What transpired beginning with the arrival of EMS Personnel and their delivery of D.C. to Indian River Memorial Hospital (hereinafter referred to as “Memorial Hospital”), was documented in an Indian River County EMS report, Incident # 014509 (hereinafter referred to as the EMS Report). A copy of the EMS Report was admitted as Petitioner’s Exhibit 3. As alleged in the Administrative Complaint, the EMS Report indicates the following: D.C.’s lung sounds were decreased on the left side with wheezes in several fields bilaterally and during transport to the hospital there was no change in his pain, although there was a decrease in the wheezing; At 9:27 a.m. D.C.’s pulse rate was 110, respiratory rate was 24 and oxygen saturation level was 92 percent by pulse oximetry; At 9:39 a.m. D.C.’s pulse rate was 116, respiratory rate was 24, and oxygen saturation level was 97 percent after the administration of oxygen by nasal cannula. A copy of the EMS Report was not provided to Memorial Hospital until after the events relevant to this case. While the EMS Report notes that EMS Personnel “[t]ransferred care to ER nurse with report,” the nature of the “report” was not proved during the hearing of this matter. Dr. Dozier was not made aware of the contents of the EMS Report or the “report” purportedly made by EMS Personnel to the emergency room nurse. Nor did he make any effort to inquire about D.C.’s condition during the time he was in the care of EMS Personnel. While the evidence presented at hearing proved that Dr. Dozier should have made an effort to inquire about D.C.’s condition during the time he was in the care of EMS Personnel, the charges in this case are limited to Dr. Dozier’s actions after D.C.’s arrival at Memorial Hospital; there is no allegation in the Administrative Complaint relating to any failure on the part of Dr. Dozier to determine what data EMS Personnel were aware of or ultimately reported. Most importantly, while there are allegations of fact concerning what EMS Personnel determined about D.C.’s condition, the Administrative Complaint does not inform Dr. Dozier of how those facts related to his care of D.C. What was in the EMS Report is, therefore, ultimately not relevant in deciding whether the allegations of the Administrative Complaint have been proved. Counsel for the Department has accurately reported parts of the EMS Report in paragraphs 23 through 32 of Petitioner’s Proposed Recommended Order and counsel for Dr. Dozier have accurately summarized some of the information contained in the EMS Report in their proposed finding of fact 8. Those proposed findings of fact, although accurate, have not been included in this Recommended Order because they relate to information which Dr. Dozier never had at the times relevant to this case. Dr. Dozier’s Treatment of Patient D.C. EMS personnel delivered D.C. at Memorial Hospital at approximately 9:54 a.m., September 4, 2003. It was documented in the Emergency Room (hereinafter referred to as the “ER”), nurse’s notes, that D.C., upon arrival, reported that he had suffered a severe coughing spell the night before, experienced increased shortness of breath, coughed up dark brown sputum, and had felt sharp left-side chest pain. It was also documented that D.C.’s oxygen saturation was 94 percent on supplemental oxygen; he was experiencing the highest level of left-sided chest pain, pain that increased with deep breaths; he was awake, alert, and oriented; his complexion was normal in color; his pulse rate was 99 beats per minute; and his respiratory rate was 22 breaths per minute. An ER nurse noted that D.C. had a history of spinal surgery and was taking methadone. Another ER nurse saw D.C. at approximately 10:00 a.m. The nurse noted in the record that D.C. was suffering sharp pain on inspiration, his oxygen saturation had increased to 97 percent on two liters of supplemental oxygen, and that he had decreased breath sounds on the left side of his chest. One of the nurses who saw D.C. ordered blood tests, including a complete blood count, cardiac markers, a differential, and a complete metabolic panel. The blood tests were subsequently cancelled. The only documentation in D.C.’s medical records at Memorial Hospital indicates that the tests were cancelled at 10:15 a.m. with a notation “Cancelled Requested by Nurse/MD PER DR DOZIER,” although Dr. Dozier did not first see D.C. until approximately 10:15 a.m. Dr. Dozier testified at final hearing that the tests had been cancelled at D.C.’s request. There are no medical notes to substantiate this testimony. Dr. Dozier documented his care of D.C. in an “Any Complaint Template” form with a time stamp of 10:17:33 a.m. Dr. Dozier noted in the Any Complaint Template that D.C. was suffering from sharp, left-sided chest pain of several hours duration with splinting (stiffening of the body to avoid pain caused by movement) and decreased breath sounds on the left side. Dr. Dozier also documented that D.C.’s past medical history included chronic pain that was being treated by methadone. Dr. Dozier ordered a chest X-ray and an EKG. He also started D.C. on Toradol, a non-steroidal, anti-inflammatory drug used for pain relief, and Levaquin, an antibiotic. The chest X- ray and EKG were documented in the Any Complaint Template. The EKG performed on D.C. was normal. His chest X-ray was interpreted by the radiologist as normal, except that he was exhibiting poor inspiratory effort. Dr. Dozier, under “differential diagnosis,” listed pleurisy (an inflammation of the lining of the chest wall and lungs marked by chest pain that increases on inspiration) first and pneumonia (an infection of the lungs marked by a severe cough, chest pain, and fever) second. A “differential diagnosis” was explained by Dr. Murray: Differential diagnosis is when you have a patient that comes into the emergency room and he has this constellation of signs and symptoms and risk factors. You try to put it together, you make a list, here’s all the possible things that could be wrong with this guy. So that’s your differential diagnosis. What are the possibilities here with what I have to look at. So you list our differential diagnosis. Transcript, page 39, lines 22-25, and page 40, Lines 1-4. Based upon the information which Dr. Dozier had concerning D.C., while pleurisy and pneumonia were reasonably included in his differential diagnosis, he should have also considered myocardial infarction, bronchitis, and, most significantly, pulmonary embolus. Of significance in this case, is Dr. Dozier’s failure to include pulmonary embolus in his differential diagnosis. Pulmonary embolus is a condition whereby the arteries in the lungs are blocked by one or more blood clots. A pulmonary embolism usually occurs when blood clots that have formed in the veins of a person’s extremities dislodge and are transported by the blood stream to the lungs where they become trapped by smaller arteries. The formation of blood clots in the extremities is called deep vein thrombosis (hereinafter referred to as the “DVT”). When blood clots become lodged in the lungs, the lungs can be damaged or, if blood flow becomes too constricted, the person can die. Pulmonary embolisms are encountered in emergency rooms with some frequency. In determining whether a person is suffering from pulmonary embolus, the common risk factors must be considered. Those risk factors include a history of previous pulmonary embolus or DVT; immobilization (the person is confined to bed, sedentary, or has recently taken a long trip); smoking; obesity; hypercoagulablity (increased tendency of the blood to clot); and cancer. The most common signs of pulmonary embolus are chest pain, usually of sudden onset and which becomes worse with deep breathing or coughing; shortness of breath, again of a sudden nature; sweating; nausea; rapid breathing or tachypnea; increased heart rate or tachycardia; low oxygen saturation; and hemotysis or coughing up blood. Making it difficult to diagnose, a patient with a pulmonary embolism may present with various combinations of symptoms, and the symptoms are often similar to those of other ailments, such as heart attack, bronchitis, pleurisy, pneumothorax, acid reflux, dissecting thoracic anerurysm, and pneumonia. Tests which can assist a physician in the either confirming or ruling out a pulmonary embolism, include ventilation/perfusion scanning (hereinafter referred to as “V/Q Scanning”), d-dimer testing, spiral computerized axial tomography, pulmonary angiography, and Doppler ultrasound. While not all of these tests were available to Dr. Dozier, V/Q Scanning was. Pulmonary embolus should have been included in Dr. Dozier’s differential diagnosis of D.C. because D.C. arrived at the ER with a chief complaint of chest pain and, as explained by Dr. Murray because of the following: Now, what would even make [pulmonary embolus] more likely, and perhaps having to pursue a little bit more, is the type of pain that he had, which is important to tell the difference between a lot of those conditions. He had pleuritic pain. That’s the classic type of chest pain that somebody with a pulmonary embolus has as classically described as pleuritic sharp chest pain. That’s what this patient had. Then what was the onset? Was this gradual onset or sudden? P[ulmonary] E[mbolism]s are sudden onset. As far as I can tell, when it says in timing, it says symptoms for, now I can’t read that, how many that is, but he had circled hours. So I can just assume that he told Dr. Dozier that he was having these symptoms just for however many hours that stands for. So I was worried about the chest pain, the nature of the chest pain, the short duration of it, that I think it says brownish – or I’m not even – I would cough brownish sputum. I think that’s what it says, but I couldn’t say for sure under history of present illness, which would make me worry about that. Transcript, page 85, lines 3-23. D.C.’s history of acute onset shortness of breath and severe left-side pleuritic chest pain, his possible hemoptysis the night before his arrival at Memorial Hospital, and his elevated pulse and respiratory rates, all facts that were documented in the medical records for D.C. at Memorial Hospital, should have caused Dr. Dozier to include pulmonary embolus in his differential diagnosis. As a result of the fact that he did not consider pulmonary embolus as a possible ailment, Dr. Dozier failed to order tests which could have helped him to rule out pulmonary embolus or led him to conclude that D.C. was suffering from the ailment. In particular, he failed to order a V/Q scan. Ultimately, Dr. Dozier released D.C., listing as his final diagnoses pleurisy and bronchitis (inflammation of the bronchial tubes marked by painful cough and fever). Dr. Dozier prescribed Vioxx, a non-steroidal anti-inflammatory drug, Levaquin, and Flexeril (a central nervous system depressant, commonly referred to as a “muscle relaxer”). Cancellation of the Blood Tests. As noted in Findings of Fact 19, blood tests ordered for D.C. were ultimately cancelled. According to Dr. Dozier, they were cancelled because D.C. refused the tests, a suggestion that was not documented by Dr. Dozier in D.C.’s medical records, despite the seriousness of a patient refusing tests which a physician prescribes. Given the significance of the consequences of such a refusal, Dr. Dozier’s testimony on this point is questionable and rejected as not convincing. Other facts also raise concerns about the credibility of Dr. Dozier’s testimony concerning the cancellation of the blood tests. For example, S.C. saw D.C. approximately an hour after his arrival at the hospital and found him quiet, pale, and looking very ill. At no time did D.C. or Dr. Dozier, whom she had spoken with, inform S.C. that D.C. had refused blood tests. It is also noted that D.C. did not refuse other tests, including the chest X-ray and EKG ordered by Dr. Dozier. Ultimately, Dr. Dozier’s explanation concerning the cancellation of the blood tests was not convincing, based upon findings made in this Recommended Order and because of the troublesome aspects of his testimony as explained in paragraph 51 of Petitioner’s Proposed Recommended Order, which is incorporated by reference. Despite this conclusion, ultimately, it was the Department’s burden to prove why the blood tests were cancelled. This the Department simply did not do. Ultimately the evidence simply proved that the tests were ultimately cancelled. Regardless of why the blood tests were cancelled, Dr. Dozier violated the standard of care, as found, infra. Instructions on Discharge. On discharge, D.C. was given the following written instructions on a pre-printed form: The doctor thinks your symptoms may be due to: PLEURISY. Keep this in mind: DIAGNOSIS WITH 100% CERTAINTY IS NOT POSSIBLE in the Emergency Department. Therefore, if you find you are not getting better, another diagnosis is possible, and you must see your doctor or return here. After you leave, you must properly care for your problem and observe its progress. If you do not improve as expected, or are worse, do one of the following. Immediately: contact your doctor or follow up doctor or call here [the ER]. Contact your doctor, call, or return here if you experience any of the following: A) high fever or chills B) difficulty breathing C) difficulty; swallowing or drooling D) pain or tightness in chest or neck E) thick green or bloody sputum F) fast pulse (more than 100 a minute at rest) G) vomiting. Your symptoms should improve within 4-6 days and should not worsen. You should be able to breathe comfortably when sitting or lying down, and should not be struggling to breathe. You should be able to eat, drink, and swallow without pain or drooling. Rest, drink plenty of fluids, and eat regular well-balanced meals. Use Acteminophen (Tylenol, etc.) for pain or fever, and take any prescribed medications. A cool-mist vaporizer may help decrease cough and discomfort. DO NOT use a hot mist vaporizer of hot steam. DO NOT smoke during your illness; smoking will delay your recovery. The forgoing instructions were consistent with Dr. Dozier’s diagnosis of pleurisy or bronchitis. Having failed to consider pulmonary embolus, the instructions were inadequate in failing to address this possible condition. The Standard of Care. The Department's expert, John V. Murray, M.D., credibly opined that Dr. Dozier failed to practice medicine in accordance with the level of care, skill, and treatment recognized in general law related to health care licensure in violation of Section 458.331(1)(t), Florida Statutes (hereinafter referred to as the "Standard of Care"), in his treatment of D.C. In particular, it was Dr. Murray’s opinion that Dr. Dozier violated the Standard of Care by failing to recognize the possibility that D.C. was experiencing a pulmonary embolism and, as a consequence, by failing to include pulmonary embolus in his differential diagnosis; and by failing to order diagnostic tests, in particular V/Q Scanning, which may have either ruled out or confirmed the existence of a pulmonary embolism. Dr. Murray’s opinions are credited and accepted. The opinions to the contrary offered by Dr. Dozier and his expert witness are rejected as not convincing and as not addressing the issues precisely enough. Too much was made of facts which were not available to Dr. Dozier at the time he made his differential diagnosis and the consequences thereof, unlike Dr. Murray, who specifically testified, when asked whether he attempted “to put yourself in Dr. Dozier’s shoes on the day these events occurred,” as follows: A. Yes, sir. I think that’s necessary. If you’re going to make a finding that was the standard of care, I think the standard of care relates to what would the prudent physician in the same circumstances on the same day do. In order to do that, you put yourself in those shoes. Say if I was there what would I do and what would be the standard of care for that, the minimum. Transcript, page 33, lines 22-25, and page 34, lines 1-3. Dr. Murray went on to explain that, although he had learned from the documents presented to him, information that Dr. Dozier did not have available while caring for D.C., he was able to limit his opinions appropriately to the time of the actual events and the information which Dr. Dozier was presented with. The opinions offered on behalf of Dr. Dozier were not so precisely limited. Medical Records. Dr. Dozier failed to document in his medical records for D.C. whether D.C. was a smoker or had recently taken any long trips, both facts which are relevant bits of information when considering pulmonary embolus. Dr. Dozier’s medical records were, therefore, inadequate in this regard. Dr. Dozier also failed to give adequate follow-up instructions for pulmonary embolus upon discharge. Dr. Dozier’s actions, however, were the result, not of his failure to include pulmonary embolus in his differential diagnosis, but in the failure to accurately diagnosis D.C.’s condition, a failure for which Dr. Dozier has not been charged. I. D.C.’s Demise. On September 6, 2003, D.C. died in his sleep. A postmortem autopsy of D.C. revealed that he died of “massive pulmonary thromboembole due to phlebothromboses of lower extremities.” It was found that D.C. had an abdominal malignancy, a significant contributing factor in the death of D.C. What role, if any, that Dr. Dozier’s failures in his treatment of D.C. contributed to D.C.’s ultimate demise was not proved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine finding that James C. Dozier, M.D., has violated Section 458.331(1)(m) and (t), Florida Statutes, as described in this Recommended Order; issuing a reprimand; imposing a fine of $10,000.00; requiring that he complete the Florida Medical Association’s “quality Medical Record Keeping for health Care Professionals” course or a Board-approved equivalent; and requiring that he complete five hours of continuing medical education in diagnosis and treatment of pulmonary embolus. DONE AND ENTERED this 20th day of September, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 20th day of September, 2007. COPIES FURNISHED: Don Freeman, Esquire Assistant General Counsel Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3250 Barry A. Postman, Esquire Lee Cohen, Esquire Cole, Scott & Kissane, P.A. 1645 Palm Beach Lakes Boulevard Second Floor West Palm Beach, Florida 33401 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact At all times material hereto, Respondent has been a licensed practical nurse in the State of Florida, having been issued license number PN 0867041. At all times material hereto, Respondent was employed by American Nursing Service, Fort Lauderdale, Florida, and was assigned to work at Broward General Medical Center, Fort Lauderdale, Florida. On July 30-31, 1989, Respondent worked both the 3:00 p.m. to 11:00 p.m. and the 11:00 p.m. to 7:00 a.m. shifts at Broward General Medical Center. She was responsible for 20 patients on that double shift. An hour or two before her double shift ended, she checked the I.V. of a patient near the end of the hall. The I.V. was not running, and Respondent attempted to get it running again by re-positioning the I.V. several times. She then went to the medication room and obtained a syringe to use to flush the I.V. to get it operating again. When she returned to the patient's room, the I.V. was running and Respondent tucked the syringe inside her bra. The syringe was still packaged and unopened. She then continued with her nursing duties. At 7:00 a.m. on July 31, while Respondent was "giving report" to the oncoming nursing shift and making her entries on the charts of the patients for whom she had cared during the double shift she was just concluding, one of the other nurses noticed the syringe underneath Respondent's clothing. That other nurse immediately reported the syringe to her own head nurse who immediately reported the syringe to the staffing coordinator. The head nurse and the staffing coordinator went to where Respondent was still completing the nurse's notes on the charts of the patients and took her into an office where they confronted her regarding the syringe. They implied that she had a drug problem and offered their assistance. Respondent denied having a drug problem and offered to be tested. They refused her offer to test her for the presence of drugs. Instead, they sent her off the hospital premises although she had not yet completed making her entries on the patient's charts. Hospital personnel then went through Respondent's patients' charts and found some "errors." A month later an investigator for the Department of Professional Regulation requested that Respondent submit to a drug test on one day's notice. She complied with that request. She asked the investigator to go with her to Broward General Medical Center so that she could complete the charts on the patients that she had not been permitted to complete before being sent away from the hospital. Her request was denied. At some subsequent time, the Department of Professional Regulation requested that Respondent submit to a psychological evaluation. She did so at her own expense and provided the Department with the results of that evaluation. Respondent has had no prior or subsequent administrative complaints filed against her.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Respondent not guilty and dismissing the Second Amended Administrative Complaint with prejudice. RECOMMENDED this 18th day of November, 1991, at Tallahassee, Florida. LINDA M. RIGOT 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 18th day of November, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-1775 Respondent's proposed findings of fact numbered 1-3, 6, and 8 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4 and 7 have been rejected as not constituting findings of fact but rather as constituting conclusions of law or argument of counsel. Respondent's proposed finding of fact numbered 5 has been rejected as being subordinate. COPIES FURNISHED: Jack McRay, General Counsel Department of CProfessional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Judie Ritter, Executive Director Department of Professional Regulation/Board of Nursing Daniel Building, Room 50 111 East Coastline Drive Jacksonville, Florida 32202 Roberta Fenner, Staff Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Christopher Knox, Esquire 4801 S. University Drive, #302 W. Box 291207 Davie, Florida 33329-1207
