Findings Of Fact Dr. Jose A. Mijares is a general and thoracic surgeon who has practiced medicine in Tampa, Florida since 1967. He received his medical degree from the University of Havana in 1943. He served a five-year residency at Tampa General Hospital which was completed in 1967. He is Board certified in general surgery and limits his practice to that field. He is licensed to practice medicine in Florida and was so licensed at all relevant times herein. (Testimony of Respondent, stipulation) In 1977, Respondent was on the staffs of five hospitals in the Tampa area, including Centro Asturiano Hospital. The allegations of the Administrative Complaints deal with Respondent's treatment of six patients at Centro Asturiano Hospital at various times during the period 1977 to 1979. Ricardo Larzabal This sixteen-year-old patient was admitted to the hospital by Dr. A.B. Perez on May 12, 1977, with a diagnosis of abdominal pain and nausea. At admission, the patient's white blood count was slightly elevated at 11,000, but was at a normal range of 10,500 the following day. Respondent was called in for consultation on May 13. His impression was abdominal pain with possible appendical colic, and recommended a barium enema. The results of the barium enema showed that only about on-third of the appendix filled. On May 16, Respondent performed an exploratory laparotomy and appendectomy. He found the appendix kinked with a band in the proximal third of the appendix and fecalith in the distal two-thirds of the appendix. The pathological report reflected a congested vermiform appendix with lymphoid hyperplasia. Respondent's discharge diagnosis was "Abdominal pains. Appendical colic due to fecalith in the appendix. Chronic appendicitis." (Testimony of Respondent, Petitioner's Exhibit 4) Vivian Morejon Dr. C. Castellanos admitted this seventeen-year-old patient to the hospital on May 15, 1977, with a diagnosis of epigastric pain and colitis. On admission, the patient had a normal white blood county of 9,000. A barium enema was administered and reflected no abnormality. Respondent was called in for consultation on May 18 and his impression was "Abdominal pain, appendical colic." He performed an exploratory laparatomy and appendectomy on May 19, at which time he found blood in the peritoneal cavity caused by a ruptured follicle of an ovary. The appendix was retrocecal and covered by adhesions as in chronic appendicitis. His final diagnosis was "Abdominal pain, appendical colic due to chronic appendicitis, and ruptured follicle of the right ovary." The pathology report reflected that the patient had a vermiform appendix with lymphoid hyperplasia. (Testimony of Respondent, Petitioner's Exhibit 7) Ramiro Companioni, Jr. This fourteen-year-old patient was admitted to the hospital by Dr. C. Castellanos on September 24, 1977, due to pain in the right lower quadrant which had not been relieved with medication, and vomiting for two days prior to admission. The patient had been admitted to the hospital during the previous February with the same condition. At time of admission, he had a white blood count of 5,200 which was slightly lower than normal. Respondent was consulted on the day of admission and his impression was abdominal pain, appendical colic. A barium enema was ordered, but the appendix could not be observed. On September 27, Respondent performed an exploratory laparatomy and appendectomy. He found that the appendix was congested, edematous with fecalith in mid-portion covered by adhesions. The pathology report showed a microscopic diagnosis of acute appendicitis, as did Respondent's discharge diagnosis. The patient recovered without complications. (Testimony of Respondent, Petitioner's Exhibit 6) Shirley Alvarez This fifteen-year-old patient was admitted to the hospital by Dr. C. Castellanos on September 26, 1977, with acute abdominal pain in the right side with nausea and vomiting, which was diagnosed as possible appendicitis. Her white blood count was 6,900 and a barium enema did not visualize the appendix. Respondent was consulted on September 28, and his impression was that the patient had abdominal pain, appendiceal colic. He performed an exploratory laparotomy and appendectomy on September 29. The appendix was retrocecal and covered with adhesions as in chronic appendicitis. The pathology report showed on microscopic diagnosis a vermiform appendix with multiple serosal adhesions. The patient was discharged with a final diagnosis of chronic appendicitis. (Testimony of Respondent, Petitioner's Exhibit 8) Luisa Areu This forty-two year old patient was admitted by Respondent to the hospital on July 18, 1978, complaining of abdominal pain in the right flank. On examination, Respondent's impression was cervical polyp and possible enlarged uterus. The patient had experienced an exploratory laparotomy some 10 years before, but no records were available to determine the cause or results of the operation. On July 21, 1978, Respondent performed a dilation and four quadrant biopsy of the cervix. Although no polyp was found, there was severe chronic cervicitis and the uterus on palpation was enlarged. Respondent determined that a hysterectomy was advisable due to the enlargement of the uterus and the advanced severe chronic cervicitis. On July 27, Respondent removed the uterus, both fallopian tubes, and the appendix. The ovaries were not removed. The uterus was found to be of normal size, but both tubes were congested and edematous as in salpingitis. The pathology report confirmed the diagnosis of chronic cervicitis but found no significant abnormalities with the patient's tubes or appendix. Respondent's discharge diagnosis was severe chronic cervicitis. His discharge summary stated that in spite of the pathological report that the tubes looked normal, both tubes were congested and edematous like chronic salpingitis. (Testimony of Respondent, Petitioner's Exhibit 1) Deborah Fisher This 22-year-old patient was admitted by Respondent to the hospital on February 4, 1979, complaining of lower abdominal pain. Approximately seven months prior to her admission, she had had a tubal ligation and had experienced pain and occasional vomiting thereafter. The patient's history indicated that intercourse was very painful and that she had not had menstrual periods since September, 1978. Respondent's impression was "lower abdominal pain, rule out chronic pelvic inflammatory disease." All laboratory and other tests of the patient were negative. On February 8, 1979, Respondent performed a total abdominal hysterectomy, bilateral salpingectomy, and appendectomy. He found the tubes to be congested and edematous as in sub-acute salpingitis. The pathology report on microscopic diagnosis showed chronic cervicitis, mild with reserve call hyperplasia and slight dysplasia. No patholgoical diagnosis was found as to the fallopian tubes and appendix. (Testimony of Respondent, Petitioner's Exhibit 2, Respondent's Exhibit 1) It is difficult to diagnose acute appendicitis, particularly in the case of children between 12 and 18 years of age. About 70% to 85% of appendices removed incident to an operating diagnosis of appendicitis are pathologically acute. This generally is because physicians are reluctant to permit the possibility of appendices developing abscesses and perforations if appendectomies are forestalled for too long a period. It is particularly difficult to diagnose acute appendicitis in females between the ages of 14 and 18 because they often have other causes for pain, such as an ovarian cyst. It is an accepted and customary practice to remove a normal appendix in conjunction with other surgery in the right lower quadrant, unless there are contra- indicating problems. This precludes the later possibility of appendicitis attacks, and also lessens the probability of erroneous diagnosis later because of the presence of a lower incision scar. (Testimony of Myers, [Deposition- Respondent's Exhibit 4], Mason [Deposition-Respondent's Exhibit 5] Respondent) In cases that are difficult to diagnose, particularly in young children, the use of the barium enema as a diagnostic tool for appendicitis is accepted medical practice. It helps to determine if an appendix is normal. If the appendix fills completely, it is considered to be normal, but if it does not fill normally and there is also swelling and other complaints, a physician can imply pathology in the area near the appendix. (Testimony of Respondent, Myers, Ferris, Respondent's Composite Exhibit 2, 4) Expert testimony at the hearing established that all six of the operations in question were necessary and proper, and that the care and treatment rendered by Respondent to the patients met acceptable and medical standards in the community. In the case of patient Larrabal, although his white blood count had subsided on the second day of admission, his prior history, coupled with the fact that the barium enema only partially filled the appendix, showed, in the opinion of one expert, that there was a "diagnostic dilemma" which justified the operation after waiting an appropriate time. Although the pathology report reflected a normal appendix, the fact that lymphoid hyperplasia was also found indicated the presence of an abnormality. As to patient Companioni, Respondent testified that he saw no need to operate immediately because the white blood count was normal which could have indicated the presence of viral rather than bacterial infection. Again, however, the barium enema only partially filled the appendix, thus justifying the operation when considered along with the patient's complaints and other indications. Expert opinion established that Respondent's delay was justified in waiting an appropriate time to determine if the patient's illness was minor in nature or acute. The exploratory laparotomy which Respondent performed on patient Morejon was justified in that it was impossible to determine in advance whether the pain she had experienced was caused by appendicitis or something else. It was discovered upon operating that she had had a ruptured follicle of the ovary which was the source of pain. The removal of her normal appendix as incident to the surgery was necessary and proper under the circumstances. Even Petitioner's expert testified that it had been a "close call" as to whether or not to operate on the patient, and he agreed that the appendix should have been removed as incidental to the surgery. As to patient Alvarez, the fact that the appendix didn't "visualize" as a result of the barium enema indicated something was blocking the appendix and warranted the operation. The fact that fibrous adhesions were found showed that the appendix was abnormal. Although Petitioner's expert, Dr. Charles F. James, testified that the presence of adhesions indicated that the patient had probably had previous attacks of appendicitis, he felt that the operation was unjustified because there was no acute inflammation. However, he acknowledged that it is common to remove an appendix in such a case and could not be considered improper. (Testimony of Respondent, Myers, Mason, James, Respondent's Exhibit 4, 5) Petitioner's expert had reviewed the records of 15 appendectomy cases of Respondent, including the four which are the subject of charges herein. He testified that, although his opinion might be different from that of Respondent as to the treatment in question, none of the cases justified disciplinary action. (Testimony of James) There was conflicting expert testimony at the hearing with regard to the property and necessity of Respondent's surgical procedures regarding patients Area and Fisher, but the opinions expressed in the testimony of Dr. Robert W. Withers are accepted. He found that patient Areu's complaints, past medical history, and the fact that a sonogram reflected that she had an enlarged uterus indicated that the only reasonable location for her pain was in the uterus. It was therefore his opinion that such pain related to the uterus is best cured in someone who has had previous surgery in that area by the surgical procedures performed by Respondent. As to patient Fisher, similar surgical procedures performed by Respondent. As to patient Fisher, similar surgical procedures performed by Respondent were considered indicated and proper by Dr. Withers based on the patient's complaints and the prior history of tubal ligation which had resulted in the existence of post-tubal sterilization syndrome. In the opinion of Dr. Withers, there could be no other effective treatment for the patient to relieve her problem than the surgical procedures employed by Respondent. Additionally, it was found that the patient had a precancerous condition known as dysplasia, indicative that Respondent's operative procedures were fortuitous and to the patient's benefit. (Testimony of Respondent, Withers)
Recommendation That Petitioner dismiss the Administrative Complaints herein. DONE AND ENTERED this 3rd day of February, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1983. COPIES FURNISHED: Grover C. Freeman, Esquire Freeman and Lopez, P.A. 4600 West Cypress, Suite 410 Tampa, Florida 33607 Tony Cunningham, Esquire Wagner, Cunningham, Vaughan and McLaughlin, P.A. 708 Jackson Street Tampa, Florida 33602 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Petitioner, vs. CASE NOS. 81-3183 82-823 JOSE A. MIJARES, M.D., License Number: 12114, Respondent. /
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint. If so, what punitive action should be taken against him.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner is a state government licensing and regulatory agency. Respondent is now, and has been since August 8, 1975, licensed to practice medicine in the State of Florida. He holds license number ME 0025748. Respondent specializes in urology. L. H. is a former patient of Respondent's. She first presented to Respondent on June 20, 1994, complaining of recurring urinary tract infections. At the time, she was 65 years of age. L. H. had very few symptoms. She did tell Respondent, however, that she had had a fever associated with an infection about a month prior to the visit. Respondent conducted a physical examination of L. H.. He found no abnormalities other than a tight or stenotic urethra. A catherized urine specimen was taken from L. H. Laboratory testing revealed a white blood cell count of 20 to 25, with 3 plus bacteria, and the presence E-coli. These results were indicative of an infection in the area of the bladder. The ordinary medical response to such an infection is treatment with an antibiotic. L. H. was already being treated with an antibiotic (Cipro) that had been prescribed by the physician who had referred her to Respondent. Respondent prescribed additional antibiotic treatment for L. H. In addition, an intravenous pyelogram (IVP) was scheduled and performed. The results of the IVP were normal. Respondent next saw L. H. on July 18, 1994, for a scheduled cystoscopy. (She had a previous appointment for a cystoscopy which she had cancelled.) Another urinalysis was performed during L. H.'s July 18, 1994, visit. It revealed that she had "persistent white blood cells," with a trace of bacteria. Accordingly, during the visit, L. H. was given a strong antibiotic Gentamicin, which was administered intramuscularly prior to the cystoscopy. L. H. was also administered a local anesthetic, Xylocaine, prior to the cystoscopy. A cystoscopy is a visual examination of the bladder (performed by the examining physician) using an endoscopic device known as a cystoscope, which is placed in the bladder through the urethra. Cystoscopes are either rigid or flexible. A rigid cystoscope's magnification is twice that of a flexible cystoscope. Moreover, a rigid cystoscope provides more illumination than a flexible cystoscope. A flexible cystoscope, however, causes less patient discomfort, particularly in male patients, than does a rigid cystoscope. Respondent (who has performed thousands of cystoscopies and has seen many different types of lesions in the bladder in the years he has practiced medicine) used a rigid cystoscope (with glass fibers) to examine L. H. Upon looking in L. H.'s bladder with the cystoscope, he observed multiple lesions (ten to twelve in number). The largest of the lesions present in L. H.'s bladder was considerably larger and different in appearance than the others. It was approximately three centimeters in diameter, cauliflower-shaped, and blister-like. Respondent told L. H. during the cystoscopy that he was not sure what the lesions were and that he needed to biopsy them to learn more about them. He sought L. H.'s consent to perform such a biopsy procedure during her office visit that day. Such a biopsy procedure would have cost an additional $100.00 and could have been quickly performed by Respondent, who routinely performs such procedures in his office on a daily basis. Upon being told by Respondent that she had lesions in her bladder, L. H. became very emotional. She advised Respondent that she did not want him to perform the biopsy procedure that day. After the completion of the cystoscopy, L. H. got up from the examining table and got dressed. Her husband then entered the examining room. Respondent told L. H.'s husband (in L. H.'s presence) that the cystoscopy had revealed multiple lesions or tumors in L. H.'s bladder, but that the lesions were most likely benign, inflammatory growths (perhaps indicative of an abnormal connection between the bladder and large intestine) and not cancerous. He cautioned, however, that he needed to biopsy the lesions to make sure that they were not cancerous.2 After conferring with L. H. and her husband, Respondent scheduled L. H. for a follow-up biopsy (to be performed with a resectoscope) for July 28, 1994. He also prescribed a continuing course of treatment with antibiotics for L. H. L. H. and her husband then left Respondent's office. She never returned as a patient. Respondent maintained written records regarding his care and treatment of L. H. These records contain sufficient information to enable a neutral third party to ascertain the nature of, and justification for, the treatment he rendered. Following her July 18, 1994, visit to Respondent's office, L. H. spoke about the visit with her son-in-law, who is a urologist. L. H.'s son-in-law recommended that L. H. see another urologist, Peter J. Egerton, M.D., to obtain a second opinion. L. H. presented to Dr. Egerton on July 20, 1994. Dr. Egerton performed a cystoscopy using a flexible cystoscope to examine L. H. He found no evidence of lesions in L. H.'s bladder and so advised L. H. Dr. Egerton's written report of his examination of L. H. reads as follows: PROCEDURAL NOTE [L. H.] July 20, 1994 PREOPERATIVE DIAGNOSIS: Rule out bladder tumor. POST OPERATIVE DIAGNOSIS: No bladder tumor. PROCEDURE: Flexible cystoscopy Surgeon: Peter J. Egerton, M.D. Assistant: Gloria Gose, R.N. ANESTHESIA: Local Xylocaine CONDITION: Stable PROCEDURE: The patient was brought to the cysto suite and placed in the foreleg position. She was prepped and draped in the usual manner. A #16 french flexible scope was passed into the bladder. There were no obvious tumors, stones or masses seen and there was clear efflux. The bladder was then reexamined, and no 3cm lesion could be found as described. The scope was removed and the patient tolerated the procedure well and left the cysto suite in satisfactory condition. After her visit to Dr. Egerton's office, L. H. again spoke with her son-in-law, who suggested that L. H. go see yet another urologist, Thomas Suits, M.D., for a third opinion. L. H. presented to Dr. Suits on July 21, 1994. Dr. Suits performed a cystoscopy during L. H.'s visit. (It is unclear from the record whether he used a rigid cystoscope or a flexible cystoscope to examine L. H.) Dr. Suits' written report of the L. H.'s July 21, 1994, visit to his office reads as follows:3 Procedure- July 21, 1994 CYSTOSCOPY: Scope placed with difficulty. Urethra extremely injected. Bladder trabeculated, grade 1 to 2/4. Ureteral orifices slit type, clear Efflux. Bladder mucosa slightly erythematous consistent with recent cystitis. There are no bladder diverticulum. There are no bladder cancers, polyps or other evidence of malignancy. PVR 20ccs. POST PROCEDURE UROFLOW UROFLOW: PEAK: 9 AVERAGE 5 VOIDED: 131 IMPRESSION: Urethral stenosis. Recurrent urinary tract infection No evidence of bladder tumor. PLAN: Macrobid HS Premarin Cream to urethra nightly. Prosed DS prn. Follow-up 1 month. Uroflow, PVR. Possible dilatation. A urine specimen taken from L. H. during her July 21, 1994, visit to Dr. Suits' office was provided to Palm Beach Pathology for analysis. The cytology report prepared by Palm Beach Pathology reads as follows: NON-GYN CYTOLOGY SPECIMEN: Urinary Tract-Bladder (catherization) CYTOLOGIC EVALUATION: Cancer Reading: Abnormal changes COMMENTS: Clusters of degenerated slightly atypical urothelial cells and candida (?contaminant). L. H. remained under Dr. Suits' care. Subsequent examinations and testing revealed no abnormalities suggesting that L. H. was suffering from cancer of the bladder. L. H. has never had any tumors surgically removed from her bladder. Although it is very improbable, it is nonetheless possible that a blister-like lesion or tumor three centimeters in diameter, such as the one Respondent observed in L. H.'s bladder on July 18, 1994, may disappear in two or three days time. This is particularly true if the lesion is the product of an infection and the patient is being treated with an antibiotic, as was L. H. When Respondent reported that he had observed such a lesion (along with other lesions) in L. H.'s bladder during his cystoscopic examination of L. H. on July 18, 1994, he was not being untruthful. He actually saw during the examination what reasonably appeared to be a three centimeter lesion, as well as smaller lesions, in L. H.'s bladder. While these lesions may not have been present or observed by Dr. Egerton and Dr. Suits when they conducted their cystoscopic examinations of L. H. on July 20, 1994, and July 21, 1994, respectively, the lesions had been there, as Respondent had accurately reported, at the time of Respondent's July 18, 1994, examination of the patient. The evidence fails to establish that, in connection with his care and treatment of L. H., Respondent in any way acted in a manner that was inconsistent with what a reasonably prudent urologist would have recognized as being acceptable and appropriate under the circumstances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board issue a final order dismissing the Administrative Complaint against Respondent in its entirety. DONE AND ENTERED this 16th day of February, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1998.
The Issue Should discipline be imposed against Respondent's license to practice medicine for violation of Section 458.331(1)(t), Florida Statutes (2003)?
Findings Of Fact Stipulated Facts Petitioner is the state department charged with regulating the practice of medicine pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 458, Florida Statutes. Respondent was (is) a licensed physician within the state of Florida, having been issued License No. 84357. At all times material to this complaint Respondent's address of record was 68 East Ludlow Place, Citrus Springs, Florida 34434. On or about May 18, 2004, Patient R.D., a 73-year-old male, presented to Citrus Memorial Hospital, Family Care Center in Lecanto, Florida. Patient R.D.'s chief complaint on May 18, 2004, was of constipation and last major bowel movement on May 16, 2004. On or about May 18, 2004, Patient R.D. was physically examined, and the examination revealed normal vital signs, moderately distended abdomen with slowed, but present bowel sounds in all four quadrants, no masses, and a nontender abdomen. On or about May 18, 2004, Respondent ordered an abdominal flat plate and upright X-ray, which showed "obstruction with stool, air fluid levels." On or about May 18, 2004, Patient R.D.'s diagnosis was constipation with partial bowel obstruction. On or about May 18, 2004, the X-rays were interpreted by a radiologist with an impression of marked dilatation of small bowel, likely due to small bowel obstruction. On or about May 18, 2004, Patient R.D. was instructed for treatment of his diagnosis to take Miralax powder as needed and milk of magnesia in between, keep fluid intake up and go to ER (emergency room) if pain increased in the abdomen or fever or vomiting develop. Respondent prescribed Miralax to Patient R.D. Section 458.331(1)(t), Florida Statutes (2003), sets forth grounds for disciplinary action by the Board of Medicine for gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Respondent's Care of Patient R.D. Respondent received his Doctor of Medicine Degree from George Washington University. He became board certified in family practice in 1980 and was recertified in 1987, 1994, and 2001. Respondent practices at the Allen Ridge Family Care Center, an urgent care facility that is part of Citrus Memorial Hospital. On May 18, 2004, a history was taken from Patient R.D. The patient complained of constant mild abdominal pain. The patient reported that he had not had a stool for two days, that his last bowel movement (bm) had occurred two days earlier. The patient was complaining that he was constipated and that his stomach felt full. When Respondent saw Patient R.D., it was their first encounter. Respondent examined the patient. When Respondent asked the patient if he had blood or black stool, Patient R.D. denied either condition. Having a complaint of GI problems, Respondent was trying to ascertain whether the patient had internal bleeding when inquiring about the condition of the stool. Respondent, when recording information on Patient R.D.'s chart, noted that the distention and constipation were mild and constant. Respondent inquired of the patient concerning diarrhea, chills, vomiting, and issues with his appetite and noted that the patient was not suffering from any of those symptoms, other than to note that the patient's appetite was slightly down. The fluid intake was noted as being adequate for purposes of hydration. A nurse practitioner had noted the nature of the medications the patient was taking. Respondent did discuss those medications with the patient. Respondent was aware of the patient's vital signs and found them to be normal, as taken by a nurse. Respondent noted that the patient was in "no apparent distress," that is, he did not look sick by appearance. Instead the patient appeared well. Respondent noted in the chart that the bowel sounds were slowed but present in all four quadrants. Respondent wanted to determine whether the patient had absent bowel sounds or very rapid sounds that would have alerted Respondent to difficulties experienced by the patient. Absent bowel sounds represent some inflammatory process in the abdominal cavity such as appendicitis or a kidney stone, whereas rapid bowel signs signify a possible obstruction. Respondent noted "negative bruits," referring to the use of the stethoscope on the abdomen to listen for arterial sounds. Respondent found the liver and spleen to be normal upon examination. There was no hernia. There was "no CVA pain," referring to pain in the back that would be accompanied by flank pain. When Respondent palpitated the patient's abdomen light and deep, the patient reported that he experienced no pain. He responded by saying that he "feels full," which Respondent understood was in association with moderate distension. Before the visit, Respondent had experience with the type of patient represented by Patient R.D. Respondent has treated patients over time who have small bowel obstructions and who have constipation. Respondent's working differential diagnosis was that the patient was probably constipated, as had been reported. Respondent decided to have an X-ray made of the patient's abdomen. The decision to order an X-ray was in view of the distension. Respondent reviewed the results of the X-rays. The X-ray series were both flat and upright. The flat X-ray refers to lying flat (supine). That approach was requested in that Respondent was trying to determine how much stool and air were in the abdomen. Respondent was using the results of the X-ray to try to determine if the patient had a potential for obstruction. Respondent's impression of the results of the X-ray was that the rectum area showed stool in it. There was some indication of stool in the colon. Respondent was unsure as to whether there was stool in the small bowel. There were air fluid bubbles in an area that probably reflected the small bowel. Ultimately Respondent reached a diagnosis of constipation with partial bowel obstruction. Respondent, when he looked at the X-rays, went back to discuss the findings with the patient and said: Your x-ray does not look good. It has air fluid levels. You could have a problem here. It does not match up with your exam and your vital signs. You got a bad x-ray. The response by the patient was something to the effect that he did not care if he had a bad X-ray. He was constipated and he wanted something for his constipation. Respondent elected to give the Petitioner Miralax powder and give him precautions if anything developed such as abdominal pain, fever, or vomiting that was not in evidence at the moment, that the patient should go to the emergency room. Based upon the X-ray results, Respondent noted in his testimony that the patient: . . . wasn't out of the woods as far as I was concerned yet. Our standard procedure on a patient like this, is you get these air . . . you get something like that back . . . . probably, went in and recommended that he go to the emergency room. Respondent goes on to say in his testimony: . . . now if everything looked o.k. on this, this guy would have his Miralax prescription, be out of the door, and I wouldn't even see him if he had a normal x- ray. I went in the room and I talked to the guy and I said, look you got this and it could be obstruction, and he goes, 'what's obstruction' I said, well, just what we've been talking about this morning, blah, blah, blah. Pain, increase, bowel sounds, vomiting, 'Do I have any of that?' Respondent then describes the verbal exchange between the patient and Respondent as to the severity of the situation, and Respondent says in his testimony ". . . he won." Respondent indicated that the patient convinced Respondent that he was not ill. In summary, the Respondent told the patient that he could be in trouble or he might be fine. Respondent was also aware of other cases as he describes: . . . a certain percentage of people admitted for partial bowel obstruction like this that go through the hospital and has got to be a significant that go home the next day. They poop and go home the next day, 30 or 40 percent, o.k. So this guy could be that guy easily because he had symptoms so -- and he is not going to the ER because he waited two hours, three hours, whatever it was. I've seen nursing home patient's x-rays twice as bad as that and they are constipated and they are not in pain, so I had experience with these patients that some of them are not in trouble. I told this guy, you could be in trouble and this is -- and he said, 'I just need something for my constipation'. Respondent recognizes that the patient was coming to him for medical care and that he was obligated to determine if the patient was ill and that he could not rely completely upon someone else's ability to convince him of the circumstances. Respondent did not find the patient to look ill and indicated through his testimony that the patient ". . . was not in any trouble." Respondent did not find the patient in acute distress at the time the patient was seen. Respondent believes that had the patient been suffering small bowel obstruction when he was seen, that instead of moderate distension there would have been severe distension, and instead of the bowel sounds slow and present, they would have either been absent or increased. There would have been tenderness in the abdomen. There may have been a mass where none was found on examination. There was no finding of colicky pain, which Respondent considers to be the gold standard of bowel obstruction, crampy abdominal pain in severe waves that "double you over." Respondent called the patient's condition constipation with partial obstruction because of the findings in the X-ray. Respondent recognizes that there was some obstruction. He attributed the bowel obstruction to constipation caused by feces. However, in making his choices for care Respondent recognizes that distension is a symptom of obstruction. The inability to defecate is a symptom of obstruction. Respondent did not rely upon the radiologist's reading and report concerning the X-rays when making his choices for Patient R.D.'s care because he did not have the report at that time. Respondent recognized the Physician's Desk Reference (PDR) available on May 18, 2004, as a reference source and in its discussion of Miralax was an authoritative source and that according to the PDR, it considered Miralax as contraindicated for patients who are known or suspected of having small bowel obstructions. Expert Opinion Dr. James Schaus is licensed to practice medicine in Florida and board certified in family practice. He was offered as an expert to express an opinion concerning Respondent's care provided Patient R.D. on May 18, 2004. To prepare him for that assignment he reviewed investigative materials from the Department, Respondent's records and other available records that pertain to Patient R.D.'s care. When asked to express an opinion concerning whether Respondent met the applicable standards of care as defined by Florida Statutes in the examination, diagnosis and treatment of Patient R.D., Dr. Schaus expressed the opinion that Respondent: . . . deviated from the standard of care in this case by failing to refer the patient to a hospital for immediate further evaluation of the small bowel as indicated on the abdominal x-ray and the physical examination finding of a distension. The abdominal x- ray revealed multiple air and fluid filled loops in the small bowel which are marketedly dilated and associated small bowel air fluid on upright films. A small amount of air, stool, within colon, impression marked dilation of small bowel likely due to small bowel obstruction. Dr. Schaus' view of the definition of "standard of care," is the "failure to practice medicine at a level of care, skill, and treatment which are [sic] recognized by a reasonably prudent similar acting physician as being acceptable under similar conditions and circumstances." Dr. Schaus went on to state the opinion: I believe that these x-ray findings taken together with the fact that the patient was distended on the physical exam and complained of some pain with the distension of abdominal wall obligated Dr. Hopkins for immediate further hospital evaluation of this patient. I also believe that Dr. Hopkins deviated from the standard of care by prescribing Miralax to the patient who had the diagnosis of partial small obstruction. In addition to expressing the opinion that Respondent should have arranged for immediate hospitalization of the patient diagnosed with partial small bowel obstruction, and the problem with Miralax, Dr. Schaus expressed the opinion that there was a deviation from the standard of care for the failure to do a digital rectal exam on the patient. Dr. Schaus expressed an opinion that Respondent should have used a digital rectal exam with this patient to determine the presence of stool, occult blood, and the condition of the prostate and to check for rectal or perianal masses. This was the standard of care that should have been pursued in this case because the patient complained of constipation and possible bowel obstruction. If an impaction of stool were found, this would aid in the diagnosis. It would be properly considered the cause and would constitute the diagnosis. If the digital rectal exam revealed gross blood that is important, or occult blood on the stool sample as detected through a chemical test, those findings would be helpful as well. Gross blood refers to visible blood. It is bright red or darker colored. If a mass is found, it might be an indication of colon cancer. As Dr. Schaus explained, the presence of blood indicates a more serious problem in that the typical constipation does not bleed. Dr. Schaus perceived the case involving Patient R.D. as one in which constipation was the patient's presenting complaint, setting up the possibility that it was in view of constipation as such or could be from bowel obstruction. Dr. Schaus expects the physician to determine that spectrum from the very benign to the very serious. In his review of the record, Dr. Schaus notes that the patient had an obstruction as evidenced by Respondent's diagnosis of obstruction. In particular he emphasizes the diagnosis of "constipation with partial bowel obstruction." In his testimony, Dr. Schaus had referred to small bowel obstruction in his impression of the findings by Respondent but later acknowledged in his testimony that Respondent had described a condition which was "partial bowel obstruction." The obstruction would be found within the intestinal tract. The nature of the blockage in Dr. Schaus' opinion can be a partial blockage that would limit the passage of stool or a complete blockage that can cause more serious problems. In this case, Dr. Schaus believed that it was clearly indicated that the patient had a significant bowel obstruction and that it was a small bowel obstruction and the patient needed to be admitted to the hospital for further evaluation and treatment. Dr. Schaus considers the terms "small bowel" to be synonymous with "small intestine." Dr. Schaus, in expressing his opinion, relies upon Respondent's interpretation of the X-ray where the Respondent notes "abdominal flat and upright obstruction with stool, air fluid levels." Dr. Schaus expressed the opinion that Respondent should have proceeded logically with the next step after discovering the small bowel obstruction, which was to make sure that the patient receives immediate evaluation and treatment in a hospital setting. The treatment that was given was on an out- patient basis with instruction for the patient to use Miralax as needed, with milk of magnesia PRN and to keep his fluid intake up and to report to the emergency room if he had problems with abdominal pain, fever, or vomiting. That approach was not acceptable in Dr. Schaus' opinion given the signs, symptoms, and radiographic findings in relation to Patient R.D. By choosing to have an abdominal X-ray performed on Patient R.D., this was an indication to Dr. Schaus that Respondent believed the patient was experiencing something other than typical constipation. A patient who has only constipation would not be subject to an abdominal X-ray. Concerning the prescription of Miralax, Dr. Schaus noted that this medication is an osmotic agent. It is considered a fairly powerful laxative. It is designed to cause the stool to retain water leading to a softer bowel movement, but it can be a dangerous treatment or contraindicated in a patient with known or suspected bowel obstruction as mentioned in the PDR. Dr. Schaus considers the PDR to be authoritative, and it is a commonly-used reference source for prescribing medications. When explaining the circumstances concerning Miralax, Dr. Schaus commented that the absorption of water is potentially dangerous in the instance where you have a blockage and you are promoting an expansion in the stool. This patient had partial bowel obstruction and Respondent prescribed the medication. Dr. Schaus believed that the patient could have had the entire spectrum from simple constipation to a complete bowel obstruction, because a patient may present with a wide variety of symptoms. In this case, the typical expectation of nausea and vomiting does not overcome the necessity for having a high- end suspicion of serious problems in the interest of not overlooking something. Dr. David A. Weiland, Jr., is licensed to practice medicine in Florida. He is board certified in internal medicine. His practice principally involves care of adult patients. In the past, he has taught family medicine for a period of almost ten years. Patient R.D. was an elderly patient, a type of patient seen in family practice. Dr. Weiland occasionally uses the PDR when he is unaware of a drug, or, if a drug is new, he will look it up in the PDR in discussing dosage or potential drug interactions. He sees the PDR as one reference source. It serves as a guide in prescribing. Dr. Weiland sees the definition of standard of care as being "that practiced by a prudent clinician in similar circumstances, with similar findings." In preparing himself to offer testimony, Dr. Weiland reviewed the Respondent's medical records in association with Patient R.D. He considered those records to be sufficient for him to render an opinion about the care provided Patient R.D. by Respondent. Dr. Weiland in his practice deals with 73-year-old males, such as Patient R.D. He deals with males who have constipation. Dr. Weiland has dealt with patients with distention of the abdomen. At present, Dr. Weiland's predominant practice is in hospice care. Many of his patients are severely constipated because of the use of narcotics due to the nature of their illness in the hospice setting. In deciding the choice of treatment, the choice of medications for addressing a 73-year- old with distention and constipation for two days, in his practice, Dr. Weiland relies on trials and failures or successes with the use of previous medications and an understanding of the illness and the degree of illness. He looks for symptoms such as diarrhea, pain associated with a fecal mass of the rectal wall, nausea, and vomiting, to guide him in deciding where the obstruction may be located and how to address the suspected obstruction. According to Dr. Weiland, you need to encourage the forward motion of the bowels in elderly patients. Dr. Weiland uses Miralax in his practice. He describes it as a promotility agent, an agent that allows the bowel to move more functionally. Miralax is not a drug that Dr. Weiland routinely prescribes. He just does not use the drug often, even though he understands it to be a very popular laxative. Dr. Weiland believes that Miralax is contraindicated for people with mechanical bowel obstruction, meaning anything mechanical that causes the bowel to be obstructed which could be cancer, adhesions, or twisting. The complete bowel obstruction, regardless of the reason, would be contraindicated for use of Miralax. With a partial obstruction, it is not clear to him whether Miralax is contraindicated. If there is stool movement forward, there is no absolute contraindication. The fact that the patient was not vomiting was an indication to Dr. Weiland that the stool was moving forward. With a complete bowel obstruction, the patient would present nausea and vomiting. Dr. Weiland agrees with the PDR warning that Miralax is contraindicated for patients who have known or suspected bowel obstructions. Symptoms suggestive of a bowel obstruction present would be nausea, vomiting, and abnormal distention and should be evaluated to rule out the bowel obstruction before using Miralax therapy, as explained in the PDR. Dr. Weiland thinks the key elements in the evaluation of those symptoms relate to nausea and vomiting and a patient with extreme nausea and vomiting should not be given promotility medication. Therefore, Dr. Weiland's opinion concerning the use of Miralax is conditioned upon those symptoms in relation to nausea and vomiting. Concerning general contraindications for using medications, Dr. Weiland is familiar with a medication by its general use, having looked it up on the PDR, and he has used other texts for medications, pharmacopeia. Dr. Weiland's response to contraindications depends on whether they are considered as absolute contraindications or relative contraindications. He sees the process of determining the use of the medication as dependent of the patient's underlying situation and the whole clinical condition. Dr. Weiland is also familiar with milk of magnesia, which is a chemical laxative. In addressing a patient's condition, Dr. Weiland treats the symptoms about 95 percent of the time. He uses additional testing when he confronts something unusual. For example, severe nausea would lead him to consider the use of X-rays. Other examples of a patient's circumstances in his experience that might cause the use of an X-ray or CT scan would be severe pain that was in association with a history of a particular malignancy known to cause complete obstruction, ovarian cancer or prostate cancer. Dr. Weiland would be impressed with passing significant amounts of blood in the stool, bloody diarrhea, high fever, nausea, and vomiting. But most constipation he treats initially, medically, and it would be necessary that he would have other of the issues that he described going on before it would warrant further investigation. Dr. Weiland explains that most treatments of small bowel obstruction are conservative initially. If the patient presents with a complete bowel obstruction as evidenced by nausea, vomiting, that patient is admitted to the hospital and the management involves bed rest and the provision of IV fluids to see if the patient resolves the situation. To determine whether there is a small bowel obstruction, two factors enter in, according to Dr. Weiland. One is the clinical presentation, which is abdominal pain, marked distension, nausea, and vomiting. If one of those factors is not present, Dr. Weiland does not believe that it would necessarily be considered as being a small bowel obstruction. He thinks that there is the possibility of confusing obstruction, in the sense of whether it is partial or complete. Dr. Weiland understands the differences between patients and the way they present abdominal pain and distension could be explained by lots of things, among them bowel obstruction. Concerning the Patient R.D. in his clinical presentation, considering the patient's appearance, vital signs, lack of nausea and vomiting no symptoms, Dr. Weiland would not have thought he was dealing with a bowel obstruction. The slow bowel that is described would not lead Dr. Weiland to conclude otherwise. The Respondent's impression concerning the bowel obstruction was based on X-ray findings, as Dr. Weiland perceives the matter. Dr. Weiland would not have gotten those X-rays. He believes that X-rays can sway you in the wrong direction and they do not always represent bowel obstruction. If the patient had presented looking "relatively toxin," Dr. Weiland would have ordered films, and, when he got those films, it would have confirmed the condition. Dr. Weiland proceeded with his opinion based upon the belief that Respondent reached the diagnosis of constipation with partial bowel obstruction after the X-ray results were known. Dr. Weiland looked at Patient R.D.'s X-rays. He found them to be abnormal in that there is evidence of dilation in the case because of striations, and there are fluid levels. In his experience, not all fluid levels are obstructions. Sometimes they are caused by other abnormalities. Dr. Weiland expressed the opinion that the standard of care for a patient like R.D. is that you look at the patient, determine the patient's symptoms, and make a clinical recommendation with a follow-up, and, if the patient systems worsen, then the patient should go to the emergency room for care. Dr. Weiland believes that partial small bowel obstruction could be a life threatening condition. If the patient were facing a life threatening condition, Dr. Weiland would hospitalize the patient. Evidence of a life-threatening condition would be nausea, vomiting, inability to keep down oral medications, and abnormal signs none of which were evidenced in this case in the case of R.D. Dr. Weiland considers abdominal distension to be a non-specific symptom in the patient, as well, abdominal distension with pain is non-specific. Dr. Weiland would not have sent the patient to the emergency room on May 18, 2004. The conservative approach was acceptable. The causation of the problem would often times resolve on its own. Dr. Weiland refers to the Respondent having the luxury of looking at the actual patient and the patient's appearance and the vitals did not appear to be toxic. Dr. Weiland agrees with the Respondent that if the patient developed fever or vomiting he should go to the emergency room. That would be evidence that the patient was experiencing a complete bowel obstruction. Dr. Weiland's reading of the Respondent's reference to partial bowel obstruction is that it is based upon information that Respondent had, including the patient had fecal material, and that the patient is obstipated. Dr. Weiland believes that the partial bowel obstruction could be caused by any number of things, that have been mentioned in his testimony and reflected in this discussion and that the patient should be treated conservatively. If the problem resolves then that ends it. If it does not, then a CAT scan should be considered, and only upon the condition becoming a bowel obstruction that is complete will surgery be necessary. Dr. Weiland agrees that the use of a rectal exam can aid in the determination of the cause of an obstruction. Dr. Weiland expresses a preference to have a rectal exam documented in the patient chart. Having considered the opinions of the medical experts in view of the choices Respondent made in caring for Patient R.D., Dr. Schaus' opinions that Respondent fell below the standard of care in prescribing Miralax with a diagnosis of partial obstruction and the opinion by Dr. Schaus that the Respondent's failure to refer the Patient R.D. to the hospital for further evaluation of bowel obstruction fell below the standard of care are accepted. Although the choice to proceed to the hospital or not would have been the patient's decision, Respondent in his approach did not create that option. Rather he deferred to perceived limitations placed on the care by the patient, commenting that he was there principally for difficulties with constipation. That response to the patient's needs was below the standard of care. Respondent left available the choice to proceed to the emergency room if the patient began to have abdominal pain, fever or vomiting. Dr. Schaus' opinion that Respondent fell below the standard of care in not performing a digital rectal examination on Patient R.D. is accepted when addressing the possibility of a bowel obstruction. Mitigation/Aggravation The record does not reveal any adverse outcome attributed to Respondent's care provided Patient R.D. on May 18, 2004. There is no indication that Respondent has ever been disciplined in Florida or other jurisdictions while practicing medicine.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Section 458.331(1)(t), Florida Statutes (2003), placing Respondent on a period of probation for one year, issuing a letter of reprimand and imposing an administrative fine of $5,000.00. DONE AND ENTERED this 1st day of May, 2007, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 1st day of May, 2007. COPIES FURNISHED: Ephraim D. Livingston, Esquire Dory Penton, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Christopher J. Schulte, Esquire Burton, Schulte, Weekley, Hoeler & Beytin, P.A. 100 South Ashley Drive, Suite 600 Post Office Box 1772 Tampa, Florida 33602-1772 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
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times relevant to this proceeding, respondent, Manihi G. Mukherjee, has been a licensed physician in Florida, holding license number ME 0027749. She received her medical degree in New Delhi, India, in 1965. Respondent is Board certified in obstetrics and gynecology and is a Fellow of the American College of OB/GYN. She attends conferences regularly and has attended more than 150 hours of continuing medical education courses between 1979 and 1987. Since 1976, she has been in private practice in St. Petersburg, Florida, specializing in obstetrics and gynecology. Respondent first saw patient J.B. on November 30, 1979, for a routine gynecological examination and renewal of birth control pills. While obtaining an initial history on the patient, respondent learned that J.B. had a previous appendectomy performed in 1973, and noted the surgical incision located in the right lower quadrant. During a visit to respondent on or about September 9, 1980, J.B. told respondent that she wanted more information' about methods of contraception other than birth control pills. Respondent advised J.B. about the various alternative methods of contraception, including tubal ligation, as well as their effectiveness and complications. With regard to tubal ligation, respondent explained to J.B. that a bilateral partial salpingectomy using a mini-laparotomy could be performed for sterilization purposes and that the failure rate of such a procedure was 4 to 6 persons per 1,000. A laparotomy procedure involves the creation of an incision of about 8 to 10 inches in the anterior abdominal wall. A mini-laparotomy involves a smaller incision of between one and three inches. A salpingectomy is the removal of the fallopian tube. A partial salpingectomy is the removal of a portion of the fallopian tube. A bilateral partial salpingectomy is the partial removal of both fallopian tubes. On or about April 1, 1981, J.B. returned to respondent for a six-month check up, and advised respondent that she wanted to have a tubal ligation. Respondent again advised J.B. about the method of tubal ligation which would be used (the mini-laparotomy with bilateral partial salpingectomy) as well as the complications and failure rates of the procedure. Thereafter, on April 14, 1981, J.B. was admitted to what is now known as Humana Hospital Northside in St. Petersburg Florida, for elective tubal ligation. On that date, she signed a form entitled "Consent to Operation, Administration of Anesthetics, and the Rendering of Other Medical Services," authorizing respondent to perform a mini-laparotomy and a bilateral partial salpingectomy. While obtaining a further medical history from J.B. at the hospital prior to the scheduled surgery, respondent was informed that the patient had previously had an exploratory laparotomy in 1973, at the same time that the appendectomy was performed. On or about April 15, 1981, respondent performed a mini-laparotomy and what was described in respondent's records as a "bilateral partial salpingectomy" with a modified Pomeroy procedure on patient J.B. A Pomeroy procedure is a method of sterilization accomplished by picking up a loop of the fallopian tube, clamping across the loop, cutting and removing that portion of the loop above the clamp and ligating, or tying off, the tissue beneath the clamp with catgut sutures. Respondent modified the procedure by using chromic O sutures. In performing the surgery, respondent identified the left tube and ovary and ligated the loop of the tube. She then attempted to locate the right tube and ovary. Respondent visualized a distorted right tube, but did not see a right fimbria or a right ovary. The fimbria is the fringe-like outer end of the fallopian tube. Respondent testified that she assumed that the patient's right ovary and tube had been removed during the patient's previous exploratory laparotomy and/or appendectomy. Respondent sent specimens from what purported to be the right and left fallopian tubes to the pathology department for pathological evaluation. Her dictated operative report describes the following: "Operative Findings: On opening the abdominal cavity, her right tube was blocked, fibrial (sic) end was absent. Right ovary was absent. Left tube and ovary looked normal. Ovaries looked normal. Operative Procedure: . . . Both tubes were identified. They were held in their mid portion with the Bab- cock and transfixed with chromic O catgut suture... The loop of the right and left fallopian tube were transected and sent separately to the lab..." The pathological evaluation was performed on or about April 16, 1981. It revealed that the specimen identified as "Specimen A," which purported to be a portion of the right fallopian tube, contained sections of veins and fibrofatty tissue. Specimen A did not contain tubal matter. Specimen B contained, as expected, a portion of the left fallopian tube. The respondent was advised of the pathology evaluation report, though the time of such advice was not established. Patient J.B. remained hospitalized until April 7, 1981. Shortly after performing surgery on J.B., respondent advised J.B. that during the course of the operative procedure, respondent could not find a right ovary. However, she advised J.B. that there was nothing to worry about and that everything went well. After leaving the hospital, J.B. saw respondent on three more occasions. On April 20, 1981, respondent removed the staples from J.B.'s abdomen. She advised J.B. to remain on birth control pills for healing purposes. On May 15, 1981, and on June 8, 1981, respondent saw J.B. for postoperative visits. At the latter visit, J.B. advised respondent that she would be moving to Louisiana because of her husband's job. At no time did respondent advise J.B. that the pathological evaluation of the specimens submitted from the April 15, 1981, surgery revealed that the specimen purporting to contain a portion of tubal matter from the right fallopian tube did not in fact contain such material. At no time did respondent advise J.B. that respondent believed that the right tube was removed during the previous surgery performed in 1973. Respondent did not advise J.B. that she could become pregnant if the right tube were note properly blocked, and, therefore, that she needed to remain on birth control pills until the matter could be appropriately investigated. Respondent did not advise J.B. of the necessity to "follow-up" on the results of the pathology report by either obtaining records from the 1973 surgery to confirm respondent's belief that the patient's right fallopian tube was previously removed or by performing appropriate testing on J.B. to confirm blockage of the right ovary. On or about June 20, 1981, well after being apprised of the results of the pathological evaluation, respondent dictated a Discharge Summary for the hospitalization of J.B. from April 14-17, 1981. The Discharge Summary provided in pertinent part: Hospital Course: On April 15, 1981, a mini-laparotomy and partial bilateral salpingectomy was performed without any complications under general anesthesia. Postoperatively, the patient did fairly well. She was discharged on the second postoperative day with the advice to be seen in the office in one week. The Discharge Summary contained no reference to the results of the pathological evaluation. It also contains no documentation that respondent believed that the patient's right fallopian tube was removed during the 1973 surgery. On or about September 29, 1981, patient J.B. telephoned respondent's office because her period was two weeks late and a home pregnancy test had given a positive result. J.B. was informed that it was unlikely, but not impossible, that she was pregnant, and that with a tubal ligation procedure, a part of each tube is removed. On or about October 2, 1981, J.B. went to a physician in Louisiana and was determined to be pregnant. On October 7, 1981, she had an elective abortion. Following the termination of pregnancy, a diagnostic laparoscopy and a D & C (a scraping of the uterus) was performed on October 20, 1981. The laparoscopy revealed that the right ovary was present and a cyst was on the ovary. The right fallopian tube was present in its entirety (including the fimbria), was surgically untouched and was otherwise normal. The injection of methylen blue dye revealed that the fallopian tube was open and not blocked. A failed tubal ligation is not in and of itself malpractice or substandard care. However, a reasonably prudent physician, under the circumstances present in this case, should have immediately advised the patient that the possibility existed that one of the tubes had not been properly ligated, and, therefore, the possibility existed that the patient might become pregnant. The patient should have been advised to continue utilizing birth control methods until appropriate investigation could be undertaken to determine the condition of the right fallopian tube. A reasonably prudent physician would have then undertaken appropriate investigation. This could have included either the obtaining of previous medical records to confirm or deny that the right fallopian tube had been removed during the earlier surgical procedures performed in 1973, or the performance of a hysterosalpingogram. This latter procedure is a test which involves the injection of radiographic dye into the uterus and through the tubes. The dye is examined under x-ray to determine whether it flows freely through the fallopian tube or is stopped by blockage or ligation. The respondent admits that the term used in J.B.'s medical records to describe the procedure performed on the patient during her April, 1981, hospitalization was incorrect. Respondent did not perform a bilateral salpingectomy as noted in the Discharge Summary, but instead performed a left partial salpingectomy and excision of the tissue from the right tube. On September 5, 1981, patient R.L., an 18 year old female, was admitted to the emergency room complaining of abdominal pains. After examining the patient, the emergency room physician determined that R.L. was suffering from bilateral lower quadrant tenderness in the abdomen. A pelvic examination revealed bilateral tenderness in the adnexa and tenderness in the cervix. The impression of the emergency room physician was that R.L. had pelvic inflammatory disease (PID). PID is a progress of infection in the reproductive organs which can start in the vagina and spread to the cervix and progress upward to the uterine cavity, continue on outward to the fallopian tubes and involve the pelvis, either by direct continuous spread or through the blood supply and the lymphatics. It may be associated with either a bacterial or a viral type of infection. The emergency room physician ordered several tests to be conducted for the patient, including a complete blood count test. This test revealed that the patient's white blood cell count was 17,500. A normal count is approximately 7,800. R.L.'s white blood cell count was significantly elevated, indicating the presence of an infective process. The emergency room physician contacted the respondent, who agreed to assume the care of patient R.L. Respondent ordered the admission of the patient to the hospital, with a diagnosis of PID with peritonitis. Peritonitis is an inflammation of the peritoneum or lining of the abdomen. Upon admission, the respondent obtained an initial medical history and performed an initial physical examination on R.L. The medical history revealed that the patient had never had children, had been on birth control pills for one and one-half years, and she denied having had sexual intercourse for the past four months R.L. informed respondent that she had started having abdominal pain and a low-grade fever on the morning of the day before and that the pain had become increasingly worse and generalized, associated with some nausea and vomiting. The respondent's examination of the patient's abdomen and a pelvic examination revealed vague distention or bulging of the abdomen, muscle guarding and rigidity. Sluggish bowel sounds were audible, and there was marked tenderness and rebound tenderness in the patient's lower abdomen. The respondent's impression was acute PID with peritonitis. She ordered that R.L. be placed on intravenous fluids, that her vital signs be taken four times a day, that a chest x-ray be given, and that pain medication, aspirin, and antibiotics be administered. The respondent's main objective was to try to resolve the patient's PID conservatively, without performing surgery. R.L.'s daily progression varied with respect to her white blood cell count, her temperature, abdominal tenderness and rigidity, bowel sounds and daily activity between September 5 and 14, 1981. The patient's white blood cell count fell to 13,100 on September 7, and rose to 16,700 on September 9th. Her temperature would rise and fall on any given day. Her abdomen remained distended and rigid until September 12, when she began having less tenderness and better bowel sounds. She showed some improvement in her diet intake and in ambulation. The respondent ordered that various tests and changes of medication be performed between September 6 and 14, 1981. These included a urinalysis, a flat plate x-ray of the abdomen, an ultra sound of the abdomen and changes in antibiotics. On September 10, respondent performed a culdescentesis (the insertion of a needle into the cul-de-sac under general anesthesia), and withdrew ten cubic centimeters of frank pus. On September 11, respondent performed a colpotomy (a procedure in which an incision is made into the cul-de- sac through the upper wall of the vagina, into the peritoneal cavity) in order to drain the cul-de-sac. The patient appeared to improve somewhat after this procedure. On September 14, 1981, respondent requested Dr. Benjamin Abinales to perform a surgical consultation. Dr. Abinales' examination of R.L. on September 14 revealed that R.L.'s abdomen was slightly distended, with marked tenderness. He noted muscle guarding and rebound tenderness, and the presence of peristalsis. Dr. Abinales felt that the patient was suffering from pelvic peritonitis, and recommended that respondent continue the present plan of treatment for several days. If no improvement was evident, Dr. Abinales suggested that exploratory surgery be considered. The patient's condition did not improve after September 14th. Her white blood count value rose to 27,800 and her temperature was as high as 101 degrees on September 15, 1981. E-coli bacteria, usually found in the gastrointestinal system, were revealed from cultures performed on the pus drained during the culdescentesis. On September 16, the responded performed a second colpotomy, again draining frank pus. On September 17, R.L. was administered a new type of antibiotic, and this was changed again on September On September 18, a chest x-ray revealed that there was a possibility of a subphrenic abscess on the left side of the lungs with pleural effusion present. Thereafter, specialists in infectious diseases and pulmonary medicine were consulted. The infectious disease specialist recommended a CT Scan of the abdomen and surgical intervention after the CT Scan results were evaluated. On September 21, 1981, respondent and Dr. Abinales performed an exploratory laparotomy, lysis of extensive intestinal lesions, what was described as "removal of tubovarian abscess from the right side," an appendectomy, drainage of subphrenic abscess on the left side, and peritoneal lavage. The operative description of the exploratory laparotomy demonstrates that there was significant inflammation of the fallopian tube and the ovary on the right side and also significant inflammation of the appendix on the right side. Thus, the etiology of the infection could have been either an appendicitis with perforation or a tubo-ovarian abscess. Patient R.L. recuperated uneventfully after the surgery and was discharged from the hospital on October 4, 1981. Where possible, conservative treatment (non-surgical treatment) is the treatment of choice for PID. This is particularly true for young female patients of child bearing years. The accepted standard of practice for gynecologists is to initially pursue conservative treatment of PID with antibiotic therapy, especially in the presence of peritonitis, for a period of about 72 hours. Generally, if the proper antibiotics are administered, PID responds dramatically within 72 hours. If clinically significant improvement does not occur in that period, other complications, such as appendicitis or abscess formation, should be suspected and exploration of the abdomen surgically is necessary. The extent of surgical intervention required depends, in large part, on the condition of the abdomen as revealed on exploratory laparotomy. While a physician should be concerned about making every effort to preserve the reproductive organs in a young female, the need to preserve the reproductive system must be balanced against the need to preserve the patient's life, particularly where peritonitis exists.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent Manihi G. Mukherjee, M.D. be found guilty of violating Section 458.331(1) (m) and (t) , Florida Statutes, that she pay a fine o $2,500.00 and that she be placed on probation for a period of three years, with conditions and restrictions to be established by the Board of Medicine relating to her surgical assessment and care of patients and her record keeping. Respectfully submitted and entered this 28th day of September, 1988, in Tallahassee, Florida. Diane D. Tremor, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1500 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1988. APPENDIX TO RECOMMENDED ORDER CASE NO. 87-2283 The parties' proposed findings of fact have been fully considered and are accepted and/or incorporated in this Recommended Order, with the following exceptions: Petitioner 7. Rejected as irrelevant and immaterial to the issues in dispute. 13. Rejected as irrelevant and immaterial to the issues in dispute. 40. First sentence rejected as irrelevant. 49. Second sentence rejected as irrelevant. 61(b). Second sentence rejected as unsupported by competent, substantial evidence. 63. Rejected as unrelated to the charges in the Administrative Complaint. Respondent (as to J.B.) 11. Rejected as contrary to and inconsistent with the greater weight of the evidence. 13, 14, 15 and 17. Rejected as contrary to and inconsistent witch the greater weight of the evidence. (as to R.L.) 4. Rejected as unsupported by competent, substantial evidence. First sentence rejected as unsupported by the evidence. Rejected as contrary to the evidence. 9, 10 and 11. Accepted, except with regard to timeliness. 12. Rejected, as contrary to the greater weight of the evidence. COPIES FURNISHED: Stephanie A. Daniel Senior Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Donald V. Bulleit and Nelly Ehouzam Fowler, White, Gillen, Boggs, Villareal & Banker, P.A. P. O. Box 210 St. Petersburg, Florida 33731 Dorothy Faircloth Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues in this case for determination are whether Respondent Samuel Cox, M.D., committed the violations of Chapter 458, Florida Statutes, as alleged in an Administrative Complaint filed by the Department of Health on November 18, 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, Samuel Cox, 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 77851 on April 22, 1999. Dr. Cox's mailing address of record at all times relevant to this matter is 2438 East Commercial Boulevard, Fort Lauderdale, Florida 33308. Dr. Cox is a board-certified general surgeon who has specialized his practice to bariatric surgery. He has performed bariatric surgery since 1985, performing approximately 3,000 such surgeries since that time. Dr. Cox has performed approximately 214 Roux-en Y procedures in Florida. No evidence that Dr. Cox has previously been the subject of a license disciplinary proceeding was offered. Bariatric Surgery. Bariatric surgery, also known as gastro-bypass surgery, is a type of surgery performed on morbidly obese patients to assist them in losing weight. In order to be found to be morbidly obese and, therefore, to be considered a candidate for the procedure, a patient must be found to have a Body Mass Index greater than 40. Body Mass Index is a measure of body fat based on height and weight (weight in kilograms divided by the square of height in meters). For example, a six-foot-tall individual weighing 296 pounds would have a Body Mass Index of 40.1. See http://www.nhlbisupport.com/bmi/. A patient with a Body Mass Index of 35 may also be considered a candidate for the surgery if they present with certain comorbidities associated with obesity. Comorbidities are physical problems associated with obesity and include diabetes, lung problems, heart problems, and high blood pressure. The more comorbidities a patient has, the higher the risk is to that patient from bariatric surgery. While there is more than one type of bariatric surgery, at issue in this case is a procedure known as Roux-en-Y gastric- bypass surgery (hereinafter referred to as "RNY Surgery"). RNY Surgery is a surgical method of creating a reduced-sized stomach. This reduced-sized stomach is created by removing a small portion of the stomach, where the esophagus (which brings food from the mouth to the stomach) attaches to the stomach, from the larger remaining portion of the stomach. The small portion of the stomach attached to the esophagus is then formed into a pouch, creating a much smaller stomach. The remaining larger portion of the stomach is completely by-passed. Often a device called a silastic ring is used at the bottom of the newly created stomach to help the pouch maintain the desired size and prevent it from stretching into a larger pouch. A portion of the small intestine is attached to the bottom of the newly created stomach. Approximately 150 centimeters down the small intestine, the excluded or removed portion of the stomach, the liver, and the pancreas are connected back to the intestine. This allows digestion of food to continue, but reduces the amount of digestion that previously occurred in the 150 centimeters of the intestine which are bypassed. RNY Surgery allows a patient to lose weight in two ways: first, by limiting the amount of food the patient can eat; and secondly, by reducing the absorption of nutrients by bypassing part of the intestine. The most common and serious complication of RNY Surgery is a leak at the gastrojejunal anastomosis, or the point where the newly created stomach pouch (the gastro) is connected to the intestine (the jejunal)(a gastrojejunal anastomosis leak will hereinafter be referred to simply as a "Leak"). This complication may be evidenced by several symptoms exhibited by a patient. Surgeons performing bariatric surgery must look for these symptoms. The typical symptoms of a Leak include left shoulder pain (caused by pooling of the leakage under the diaphragm which causes irritation which manifests as left shoulder pain), decreased urine output, fever, shortness of breath, and high heart rate. Some manifestations of a Leak, such as atrial fibrillation, are indirect signs of a Leak in that they are associated with the stress on the body caused by the Leak. Dr. Cox's Treatment of Patient W.T. Patient W.T. presented to Dr. Cox for bariatric surgery. W.T., a male, was 47 years of age at the time and was morbidly obese. W.T. weighed 458 pounds and had a Body Mass Index of Because his Body Mass Index exceeded 50, he was considered "super" morbidly obese. He also had the following comorbidities: high blood pressure, sleep apnea, congestive heart failure, thrombophlebitis, pulmonary eboli, diabetes, and gatroesophageal reflux disease. There is no dispute that W.T. was an appropriate candidate for bariatric surgery. W.T. underwent RNY Surgery on August 31, 2005. During the surgery, Dr. Cox experienced difficulty seeing, due to the size of W.T.'s liver, the staples which he used to connect the intestine to the bottom of the newly formed stomach. Instead of confirming the placement of the staples, he was required to assess the staples with his fingers. This should have made him more sensitive to the possibility of a Leak. Before ending the surgery, Dr. Cox performed a test called a methylene blue test. To perform this test, an anesthesiologist puts medicine down a tube which passes through the patient's nose and into the new stomach. The physician then looks for any sign of a leak where the physician has sewn or stapled the small intestine to the stomach. With W.T., the methylene blue test did not disclose any leaks. The day after W.T.'s bariatric surgery, September 1, 2005, W.T. began to complain of pain in his left shoulder which is an important symptom of a Leak. W.T. also experienced decreased urine output during the night (he had, however, "responded well to fluid increases and diuretics"), and a low- grade fever, which are also indicators of a Leak. Although pain is a normal response to any operation, pain in the shoulder for the type of non-laparoscropic bariatric surgery performed by Dr. Cox should have made Dr. Cox more concerned than he apparently was as to the cause. The normal pain response to the type of operation Dr. Cox performed would be expected where the incision was made, but not in the shoulder. Dr. Cox treated W.T.'s shoulder pain with narcotic analgesia by a patient-controlled analgesia pump. He treated the decreased urine output with increased fluids and a diuretic (Mannitol). The fever was treated with Tylenol. Although the left shoulder pain, decrease in urine output, and low-grade fever could have been indicative of a Leak, Dr. Cox made no note in the patient records that he had considered the possibility that W.T. had a Leak, prematurely ruling out the possibility of a Leak. Dr. Cox suggested that the left shoulder pain was related to a diaphragmatic irritation caused by the use of surgical instruments on the diaphragm and that the urine output decline could have been attributable to the impact on W.T.'s kidneys by his diabetes. While these might have been appropriate considerations at the time, Dr. Cox could have not known for sure what was causing W.T.'s symptoms and, therefore, should have considered all the possible causes of these symptoms, especially the possibility of a Leak. On the second post-operative day, September 2, 2005, W.T. exhibited an abnormal heart rhythm, called atrial fibrillation. With a normal heart rhythm, the atrial (the first two of the four heart chambers) contracts, followed by contraction of the ventricles (the other two heart chambers). Atrial fibrillation is an abnormal heart rhythm characterized by a failure of the atria to completely contract. The fact that W.T., who had no prior history of atrial fibrillation, was evidencing atrial fibrillation on post-operative day two should have raised a concern about what was happening to W.T., including, but not limited to, the possibility of a Leak. W.T. was also experiencing an abnormally high heart rate of 148, which could have also been indicative of a Leak. Dr. Cox continued to treat W.T.'s shoulder pain with narcotic analgesia and the decreased urine output with increased fluids and Mannitol. He treated the elevated heart rate with Cardizem, a medicine used to slow the heart. W.T.'s shoulder pain appeared to decrease, which was to be expected given the course of treatment ordered by Dr. Cox. Dr. Cox had not, however, appropriately determined the cause of the pain. Again, nothing in Dr. Cox's medical records indicates that he considered the possibility that W.T.'s various symptoms might be indicative of a Leak. Nor did he take any action, such as an upper gastrointestinal test, to rule out the possibility of a Leak. To perform a gastrointestinal test, a patient drinks a water-soluble contrast called Gastrografin and a radiologists takes serial pictures of the patient, which show the contrast as it moves down the esophagus and then crosses through the anastomosis of the pouch and intestine. From these pictures, it can be determined whether the anastomosis is open and functioning properly and whether any of the contrast leaks outside of the new stomach-intestine path. The test is not fool-proof, but it is an appropriate diagnostic tool for Leaks. Dr. Cox suggests that the atrial fibrillation and high heart rate could have simply been a recognized complication of any stress W.T., with his borderline cardiac status, was experiencing. Again, while these might have been appropriate considerations at the time, Dr. Cox could have not known for sure what was causing W.T.'s symptoms and, therefore, should have considered all the possible causes of these symptoms, especially the possibility of a Leak. On the third post-operative day, September 3, 2005, air and serosanguinous fluid were observed seeping from W.T.'s abdominal incision. The existence of air may be evidence of a Leak. Although some air gets into the abdominal cavity during surgery, it is usually absorbed by the body very, very quickly. Air coming from an incision on post-operative day three suggests a hole in the intestine. Dr. Cox responded to the finding of air coming from the abdominal incision by ordering a methylene blue swallow, where W.T. swallowed a small amount of blue dye. Blue dye was then seen either coming out of the incision or drains placed in W.T.'s abdomen. Either way, the test was "positive" indicating a leak in W.T.'s intestine. Dr. Cox correctly took W.T. back into surgery. He discovered and corrected a Leak which had been caused by failure of the staples used in W.T.'s surgery. Although much was made as to when the staples failed, that evidence was not conclusive nor is it necessary to resolve the dispute. Whether the staples failed immediately after surgery or at some later time does not excuse Dr. Cox's failure to appropriately react to signs exhibited by W.T. which could have indicated that W.T. had a Leak. This case does not turn on whether a Leak actually existed. It turns on whether Dr. Cox appropriately considered the possibility of a Leak and took the steps medically necessary. With W.T., he did not. Dr. Cox's error was not in failing to find the Leak earlier; it was in failing to properly consider the possibility of a Leak when W.T. exhibited signs that should have prevented Dr. Cox from, with reasonable medical certainty, ruling out the possibility that a Leak was present. For this reason, the fact that a Leak was ultimately found is of little importance in deciding whether the charges leveled against him in the Administrative Complaint are accurate. Even if no Leak had ultimately been found, Dr. Cox's failure to properly respond to the potential of a Leak evidenced by W.T.'s symptoms was inconsistent with the standard of care. Dr. Cox's Treatment of Patient J.L. Patient J.L. presented to Dr. Cox for bariatric surgery. J.L., a male, was 35 years of age at the time and was morbidly obese. J.L. weighed 417 pounds and had a Body Mass Index of Because his Body Mass Index exceeded 50, he was considered "super" morbidly obese. He also had the following comorbidities: high cholesterol, stress incontinence, depression, anxiety, high blood pressure, gastroesophageal reflux disease, and shortness of breath on exertion associated with asthma. There is no dispute that J.L. was an appropriate candidate for bariatric surgery. J.L. underwent RNY Surgery on August 4, 2005. Dr. Cox also removed J.L.'s gallbladder. Before ending the surgery, Dr. Cox performed a methylene blue test. The methylene blue test performed on J.L. did not disclose any leaks. On the first post-operative day, August 4, 2005, J.L.'s heart rate was as high as 155 (anything over 120 is problematic), was experiencing decreased oxygen saturation of 89 percent (95 percent to 98 percent are considered normal saturation levels), had increased BUN and creatinine levels, and his urine output was borderline low. The increased BUN and creatinine, indicative of a problem with the kidneys, were are not being perfused well. J.L. was also complaining of right shoulder pain. Dr. Cox's note concerning the right shoulder pain specifically notes that it was not the "left" shoulder, which suggests that Dr. Cox was aware of the significance of left shoulder pain. J.L.'s high heart rate and low oxygen saturation level were considered significant enough to return him to the intensive care unit. On the second post-operative day, August 5, 2005, J.L.'s BUN and creatinine levels rose higher. That evening J.L. had a high heart rate. His urine output level, which Dr. Cox had treated with a diuretic and increased fluids, had improved. J.L. also became agitated and restless. He began to constantly request water. Dr. Cox eventually ordered, however, that J.L. not be given water. Dr. Cox failed to note in his records that he considered the possibility that J.L. had a Leak. Instead, Dr. Cox focused on the possibility that J.L. was suffering from rhabdomyolysis, a malfunction of the kidneys caused by the breakdown, as a result of surgery, of muscle tissue into cells too large in size for the kidneys to process. Dr. Cox ordered a CK test which found elevated creatine phosphor kinase or CPK, a marker of muscle death. Dr. Cox then consulted with a nephrologists. While the symptoms evidenced by J.L. could have very well been a result of rhadbodmyolysis, they also could have been symptomatic of a Leak. Dr. Cox did not have adequate information on August 5, 2005, to conclusively find that J.L. was suffering from rhadbodmyolysis and, more importantly, not from a Leak. As of the second post-operative day, J.L. was exhibiting a high heart rate, low urine output, pain in his right shoulder, a worsening oxygen saturation level and hunger for air, and a changed mental status (anxiety and combativeness). Due to these symptoms, Dr. Cox should have considered the possibility of a Leak, rather than merely concluding that J.L. was suffering from rhabdomyolysis and treating J.L.'s individual symptoms. On the third post-operative day, August 6, 2005, J.L.'s condition worsened. His agitation and combativeness due to his thirst and air hunger worsened. J.L. was treated with Haldol, a psychiatric medication. Dr. Cox continued to suspect rhadbdomyolysis and to ignore the possibility of a Leak. On the fourth post-operative day, August 7, 2005, at approximately 15:30, pink-tinged fluid was seen draining from J.L.'s incision. A pulmonologist consulting on J.L.'s case was the first to suggest the possibility of a Leak, questioning whether the entire clinical picture pointed to intra-abdominal sepsis due to a Leak. It was not until the drainage from J.L.'s incision that Dr. Cox first considered the possibility of a Leak. Even then, Dr. Cox did not return J.L. to surgery until August 7, 2005, where a Leak was found and repaired. Dr. Cox's error in his treatment of J.L., like his error in his treatment of W.T., was not in failing to find the Leak earlier, but in failing to properly consider the possibility of a Leak when J.L. exhibited signs which should have prevented Dr. Cox from, with reasonable medical certainty, ruling out the possibility that a Leak was present. For this reason, the fact that a Leak was ultimately found is of little importance in deciding whether the charges leveled against him in the Administrative Complaint are accurate. Even if no Leak had ultimately been found, Dr. Cox's failure to properly respond to the potential of a Leak, evidenced by J.L.'s symptoms, was inconsistent with the standard of care. Dr. Cox's explanation at hearing as to why he waited from August 5, 2005, when it was apparent that J.L. had a Leak, until August 7, 2005, to repair the Leak, is not contained in Dr. Cox's medical records. The Standard of Care. The Department's expert, Christian Birkedal, M.D., credibly opined that Dr. Cox 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 W.T. and J.L. In particular, it was Dr. Birkedal's opinion that Dr. Cox violated the Standard of Care as to W.T. by failing to recognize W.T.'s signs and symptoms of a Leak and by failing to perform a post-operative upper gastrointestinal test on W.T. once he evidenced those signs. Dr. Birkedal's opinion is credited and accepted. As to J.L., Dr. Birkedal's opinion that Dr. Cox violated the Standard of Care by failing to recognize the signs and symptoms of a Leak for two days post-operatively is credited and accepted. The opinions to the contrary offered by Dr. Cox and his witnesses as to W.T. and J.L. are rejected as not convincing and as not addressing the issue precisely enough. The opinions offered by Dr. Cox and his witnesses with regard to both patients were essentially that the various symptoms pointed to by Dr. Birkedal were not "evidence" of a Leak. Those opinions do not specifically address the issue in this case. Dr. Cox and his witnesses based their opinions on whether Dr. Cox should have "known" there was a Leak at the times in issue. That is not the charge of the Administrative Complaint or the basis for Dr. Birkedal's opinion. The question was, not whether Dr. Cox should have known there was a Leak, but whether he should have considered a Leak as a possible cause for the symptoms exhibited by W.T. and J.L. Additionally, and finally, Dr. Birkedal based his opinions, not by looking at the record as a whole, as did Dr. Cox and his experts, but by looking at only those records in existence at the times relevant to this matter. In this way, Dr. Birkedal limited himself to a consideration of what Dr. Cox knew about his patients at the times relevant in the Administrative Complaint.
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 Samuel Cox, M.D., has violated Section 458.331(1)(m) and (t), Florida Statutes, as alleged in Counts I, II, and III of the Administrative Complaint; issuing a reprimand; placing his license on probation for two years, with terms to be established by the Board; and imposing a fine of $15,000. DONE AND ENTERED this 19th day of June, 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 19th day of June, 2007. COPIES FURNISHED: Patricia Nelson, Esquire Assistant General Counsel Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3250 Jonathon P. Lynn, Esquire Marci Strauss, Esquire Stephens, Lynn, Klein 301 East Las Olas Boulevard, Suite 800 Fort Lauderdale, Florida 33301 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
Findings Of Fact The Respondent, Dr. Irvine K. Furman, is a licensed medical doctor having been issued license no. ME0004572. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 458, Florida Statutes which concern and embody standards by which physicians are licensed in the State of Florida and permitted to maintain licensure and medical practice in the State. The Respondent received his medical training in the early 1940's and then served in the military services of the United States during and after World War II. Thereafter he worked for a time as a medical examiner and then did a four year surgical residency in Columbia, South Carolina. He came to Florida in approximately 1950 and practiced medicine for a short time in Lake City. He then moved to Jacksonville and entered medical practice, continuing that practice until 1985. Most of his years as a physician have been in the field of general surgery, with about one-third of that practice for a 25 year period in the area of gynecological surgery. He has also practiced surgery extensively in the areas of aorta transplants and artificial joint replacements. He taught surgical residents for many years in area hospitals. During the course of his practice, since approximately 1950, he has always performed any surgery required by his family members and has otherwise treated members of his family, including his wife. Over the years of his practice, he has established an exemplary reputation as a physician and surgeon with his colleagues in the medical profession, even to the extent of being chosen to teach surgery. He was the recipient of numerous accolades from his colleagues upon his departure from active practice in 1985. Prior to the action sub judice, he has been the object of no complaint or proceeding, either formal or informal, by the Department of Professional Regulation, Board of Medical Examiners, or any predecessor agency, nor has any complaint been reported to such agency concerning any aspects of his practice. On approximately September, 1985, the Respondent suffered a heart attack and underwent related heart by-pass surgery. He still complains of shortness of breath on exertion and his doctor, Scott Baker, M.D., believes that the strain of active surgical practice would be too physically taxing for him at the present time, coupled with his other physical conditions involving allergies, asthma, and previous cancer surgery of the colon. The Respondent indicated that he agrees with the assessment and no longer feels that he can engage in active surgical practice. The Respondent has treated his wife, Lorena or Lori, Furman for many years for various ailments and conditions. In the mid 1950's, she suffered a toxemic pregnancy and, due to the complications associated with that condition, chose to have a therapeutic abortion. While that procedure was being performed, she lost a great deal of blood and the Respondent, (who was not performing the procedure, but was present at the time) due to, apparently, inexperience or uncertainty on the part of the physician in charge of the procedure, stepped in and "packed " her uterus to alleviate the abnormal blood loss. The next day, the uterine pack was mistakenly removed, without the knowledge of the Respondent, which resulted in more blood being lost. After a few additional days in the hospital, Mrs. Furman was discharged and went home. Following this incident, she developed health problems that the Respondent, who was treating her by that time, traced to the abnormal blood loss condition such that he diagnosed her resulting condition as "Sheehan's Syndrome." Sheehan's Syndrome is a specific disease that occurs secondary to hemorrhage associated with pregnancy. Excessive hemorrhage results in a drop of blood pressure sufficient to decrease profusion, or blood flow, to the anterior pituitary gland which results in the loss of certain essential bodily hormones. This situation occurs because an infarction or damage process to the anterior pituitary gland, due to loss of blood, causes the pituitary to cease functioning or to significantly decrease its functioning level. Thus, the hormones produced by the pituitary gland and the thyroid gland hormones, which are triggered by the action of the pituitary gland, become no longer available to the body. These hormones are not otherwise replaceable by the patient's body. The normal course of treatment for a true Sheehan's Syndrome condition is to replace the functions lost by the death of, or damage to, the pituitary gland. This treatment would include, but not necessarily be limited to, the provision of sex hormones, steroids, thyroid hormones, adrenaline hormones and, in conjunction with their replacement, the management of the potential side effects of the hormonal therapy. The physician managing a case of true Sheehan's Syndrome would, through the course of treatment, also typically compile voluminous lab work and related records reflecting investigation of steroid levels, serum cortisol levels, ATCH levels, and thyroid stimulating hormone levels. The Respondent's medical records regarding his wife's care do not reflect this type of treatment pattern. The records rather indicate that various studies were done by other practitioners, but do not reflect that any of them confirmed his diagnosis of Sheehan's Syndrome. The records largely consist of logging of medication and brief summaries regarding his wife's physical condition and changes in her physical condition. The Petitioner's expert witnesses, Doctors Wilson and Clark, examining the records of Respondent's treatment of his wife, noted the absence of any findings that she had ever suffered shock during the obstetric incident in question. Normally, blood loss would have to occur of a sufficient magnitude to produce the condition of shock in the patient in order for the requisite damage to the pituitary gland to occur so as to result in Sheehan's Syndrome; that is, an essentially total loss of function of the pituitary gland. The medical records in question do not demonstrate evidence of lost hormonal functions in the body which would normally be expected with a dead or severely damaged pituitary gland. The records do not reflect the "replacement therapy" which would be expected and required in order to replace the glandular functions lost. Thus, largely for these reasons, the Petitioner's experts concluded that the Respondent's diagnosis of Sheehan's Syndrome was incorrect. Both Doctors Wilson and Clark are family practitioners who have practiced in that area in Jacksonville for 17 years and five years respectively. Both are somewhat familiar with toxemic pregnancies and pituitary gland malfunction conditions. The treatment for Sheehan's Syndrome and pituitary gland malfunction is the essentially the same. In this connection however, although they opined that the diagnosis was incorrect, these witnesses have never actually diagnosed a case of Sheehan's Syndrome nor experienced treatment of a patient with that syndrome themselves. It is also noteworthy that neither of the witnesses had treated, diagnosed or even seen the Respondent's wife. Consequently, the evidence of record does not definitively establish whether the Respondent's wife actually suffered from Sheehan's Syndrome. Regardless of the accuracy of the diagnosis however, it has been established that the Respondent's treatment of his wife was below the level of care, skill and treatment recognized by reasonably prudent, similar physicians, as acceptable under similar conditions and circumstances, even if she were actually suffering from Sheehan's Syndrome. The generally recognized treatment for that condition involves total hormone replacement which was not shown to have been done in the instant situation. The Respondent did prescribe Premarin, which is a synthetic estrogen, commonly used for post-menopausal hormone replacement. The amount and frequency with which it was given, however indicates that it may have been given only for menopausal replacement rather than as a treatment related to Sheehan's Syndrome. Additionally, that condition is generally recognized to require long term use of steroids, which was not apparently a part of Mrs. Furman's medication plan. The Respondent prescribed thyroid medication which is appropriate with Sheehan's Syndrome since the pituitary gland has ceased functioning and is no longer able to stimulate the production of thyroxen by the thyroid gland. The thyroid medication, in limited amounts, was prescribed, however, without first securing a thyroid evaluation. Instead of total hormone replacement, much of the medication prescribed by the Respondent consists of controlled substances, particularly pain medications. Between January 21, 1985 and January 21, 1986, the Respondent prescribed the following medications in the following quantities: Substance Quantity Demerol 100 mg. 405 Ampules (1cc. size) Demorol 100 mg. 51 Ampules (20cc. size) Demerol 100 mg. 45 Ampules (2cc. size) Demerol 75 mg. 29 Ampules (1.5cc. size) Demerol 50 mg. 7 vials (30cc. size) Restoril 30 mg. 2,890 Dolophine 5 mg. 1,100 PBZ 50 mg. 30 Butizol 30 mg. 685 Tenormin 50 mg. 100 Fiornal 30 Demerol is a Schedule II controlled substance and is a narcotic pain reliever. Restoril is also a controlled substance used as a tranquilizer to induce sleep. Dolophine is also a controlled substance used as a sedative. PBZ is an antihistamine commonly used to treat allergic reactions when a sinus infection is present. Butisol is a controlled substance used as a sedative which has habit forming characteristics. It is sometimes used for control of headaches. Tenormin is a "betablocker." Its main purpose is to slow down the heart rate to a certain degree and it is used to treat hypertension, and to alleviate the adverse effects of coronary artery disease. Sometimes it is used to prevent migraine headaches. It is not a controlled substance. Fiornal is a controlled substance which is a combination of Butisol and aspirin. It has some analgesic action as well as anti-inflammatory benefits. The Demerol, Restoril, Dolophine, Butisol, and Fiornal prescribed by the Respondent are addictive substances. A physician should be aware of this fact and the Respondent clearly was. The Respondent however felt in his exercise of medical judgment that his wife's pain episodes were severe and frequent enough that he had to risk addiction in order to alleviate her suffering, which he felt both professionally and humanely bound to do. Consequently, he exercised a considered decision to risk addiction and then later to attempt to alleviate the addiction, in order to bring some measure of relief, from pain and inability to sleep, for his wife. Indeed, the Respondent on occasion withdrew all medication in decreasing dosage stages and was able to successfully alleviate her addiction. Thus, it cannot be determined that the Respondent prescribed the controlled addictive substances with any wilful or negligent disregard of the addictive consequences. Rather, in the exercise of his medical judgment, he felt it was more appropriate to relieve her suffering first and be concerned about curing any resulting dependency as a secondary goal, which he apparently was successfully able to accomplish. Indeed, his wife has been off all medications since September, 1986. There is no question that the Respondent's efforts at relieving his wife's discomfort by prescribing the controlled substances noted were well- intentioned. Some of those prescribed, and some of the amounts prescribed, were without adequate justification, however. There were insufficient attempts, through testing, reference to appropriate specialists and appropriate consultations with other physicians, to address the causes of his wife's apparent chronic pain. Indeed, Mrs. Furman at times exhibited symptoms which indicate adverse side effects caused by some of these medications, such as cramping, diarrhea, vomiting, and bloody stools. Few apparent attempts were made to evaluate the causes of these symptoms by testing or evaluation by appropriate specialists. The Respondent's approach to treatment of his wife's symptoms and any new symptoms, such as those named above, (which might involve side effects to medications) was often to prescribe additional medication, rather than seek outside consultation in evaluating the cause of the symptoms. In some instances, the amounts of medication, particularly pain relievers, exceeded that which was warranted for the situation at hand. While the medications given were of a type generally appropriate to the symptoms exhibited, in some instances the amounts appear excessive for the situation with which the Respondent was confronted. In many cases, they were not justified because of the Respondent's failure to seek appropriate evaluation of the cause of his wife's symptoms after they persisted for long periods of time in the face of continued administering of the named medications. The written medical records which the Respondent maintained, although voluminous, fail to adequately justify the course of treatment. They do not reflect repeated evaluation of the persistent symptoms; adequate evaluation and follow-up of the results of medication, either as to effectiveness or side effects; laboratory tests, to monitor the various hormonal levels or objective findings regarding her clinical condition. If anything, his records should have been more complete and adequate in treating his wife, so as to adequately justify his diagnosis and treatment, and to help him guard against the high potential for loss of objectivity risked by any physician treating his wife or a close member of his family. The Respondent's records simply do not adequately justify the course of treatment followed. The Respondent was examined by a psychiatric expert, Dr. Ernest Miller. His opinion, as well as that of Dr. Wilson, shows that the Respondent had lost his objectivity with regard to treating his wife's ailments. He developed a fixed idea that she suffered from Sheehan's Syndrome and rather doggedly pursued that idea to the exclusion of seeking or acting on other medical opinions or advice. He apparently convinced himself that he was the only physician who understood or was capable of understanding the peculiarities of his wife's condition and of treating her satisfactorily. The results of the psychiatric examination show that the Respondent had intact cognition and there were no signs to suggest any organic neurological deficits. He was found to be a very skillful physician and surgeon and generally well qualified to practice medicine, except for the finding that he was not capable of objectively treating his wife and had developed the above- mentioned fixation regarding his view of the proper course of treatment for her by himself alone. He also underwent a physical examination by a physician chosen by the Petitioner and was found to be well-developed and well-nourished with no acute distress, well oriented to time, place, person, and situation. His memory for current, recent, and remote events and his motor and sensory systems and strength appeared intact. He does not use alcohol, drugs, narcotics or other chemicals. There is not question that the Respondent has been very dedicated to his wife's care. It is clear from the evidence however, that he has lost objectivity regarding the handling of his wife's case and ailments and is not able to practice medicine with reasonable skill and safety toward her because of this emotional state. It has not been shown that he is impaired in any way in practicing with reasonable skill and safety toward other patients in his practice within his physical limitations. Some of the Respondent's treatment approaches for his wife were illogical, although well-intentioned. As example, he maintained his wife had an allergy to milk products and yet later had her on a diet which included a great deal of skim milk and eggs, as well as cheese. He maintained that she retained excess fluid as a result of salt intake, and tried to restrict her diet as to salt. At other times, however, he had her on a diet which included products containing significant amounts of salt. In short, the Respondent clearly wanted to care for his wife properly, yet he did not deign to consult other physicians about her case. He claimed to only use tests when he wanted to change something in her medication regimen, despite the factual, as opposed to merely interpretive, information that he could have obtained from appropriate laboratory evaluation, i.e. whether various glands were functioning properly; at what level they were functioning and what the various hormonal levels were. Indeed, in 1963, when an endocrinologist examined Mrs. Furman and found nothing unusual in terms of glandular function and hormonal levels, the Respondent ignored that information and continued "dietary therapy" and heavy administration of medicines. In summary, it has been demonstrated that the Respondent, through his loss of objectivity, due no doubt to his understandably strong attachment to his wife and concern for her condition, is not capable of practicing medicine with reasonable skill and safety toward her. His physical limitations preclude him from the safe practice of surgery. Indeed the Respondent admits that, due to his heart attack and resultant heart by-pass surgery, with continued shortness of breath upon exertion, that he can no longer undertake the strains of surgical practice. The evidence of record however, does not demonstrate that the Respondent is unable to safely engage in the general practice of medicine with regard to patients other than his wife, so long as he does not engage in surgical practice. It has not been shown that he does not have adequate medical judgment and skill regarding the types of medications and therapies which are appropriate for given conditions or ailments which he might encounter in the general practice of medicine. Because of his loss of objectivity as to his wife's condition, he prescribed medications of a type generally appropriate, although sometimes in excessive amounts, for the conditions he perceived his wife to be suffering. His evaluation techniques were not adequate or were entirely lacking as a basis for his diagnoses and opinions, however. Thus he did not have an adequate diagnostic predicate for prescribing the medications, in many instances.
Recommendation Accordingly, having considered the foregoing Findings of Fact, Conclusions of Law, the Evidence of Record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Respondent's medical license be restricted so as to prohibit him from performing any surgery or maintaining a surgical practice of any type and from practicing medicine in connection with his wife or acting as her physician in any way, until such time as he is able to demonstrate to the Board of Medicine that he is mentally and physically capable of practicing medicine with regard to her with reasonable skill and safety. It is, further, RECOMMENDED that the Respondent, with regard to his continued general practice of medicine be required to forthwith comply with Section 458.331(1)(m), Florida Statutes, by maintaining at all times adequate, written medical records justifying the course of treatment for all patients, including, but not limited to, patient history, examination results, and test results. DONE and ORDERED this 30th day of November, 1987, in Tallahassee, Florida. P. MICHAEL RUFF 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 30th day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-510 Petitioner Department's Proposed Findings of Fact Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's findings regarding this subject matter. Rejected as subordinate to the Hearing Officer's findings regarding this subject matter. Rejected as subordinate to the Hearing Officer's findings regarding this subject matter. Rejected as subordinate to the Hearing Officer's findings regarding this subject matter. Accepted. Accepted. Accepted. Accepted, but subordinate to the Hearing Officer's findings on this subject matter. Accepted. Accepted. Respondent's Proposed Findings of Fact Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted in part, but subordinate to the Hearing Officer's findings regarding this subject matter. Accepted in part, but subordinate to the Hearing Officer's findings regarding this subject matter. Accepted in part, but subordinate to the Hearing Officer's findings regarding this subject matter. Accepted in part, but subordinate to the Hearing Officer's findings regarding this subject matter. Accepted. Rejected as subordinate to the Hearing Officer's findings on this subject matter. Accepted. Accepted in part, but subordinate to the Hearing Officer's findings regarding this subject matter. Rejected as subordinate to the Hearing Officer's findings regarding this subject matter. Accepted. Accepted in part, but subordinate to the Hearing Officer's findings regarding this subject matter. Accepted. Accepted. COPIES FURNISHED: Julie Gallagher, Esquire Senior Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Charles J. Franson, Esquire Drew W. Prusiecki, Esquire Post Office Box 10840 Jacksonville, Florida 32247 Tom Gallagher, Secretary 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel 130 North Monroe Street Tallahassee, Florida 32399-0750 Dorothy Faircloth Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
The Issue Whether the Respondent committed the violations alleged in the administrative complaints; and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating the practice of medicine pursuant to Florida law. The Respondent is a licensed physician in the State of Florida having been issued license number ME 0043628. In September, 1987, J.B., a patient at Hialeah Hospital, underwent exploratory surgery and was diagnosed with terminal pancreatic cancer. At the time of the surgery, it was estimated that J.B. had six months to live. Dr. Roberto Cruz, J.B.'s doctor at Hialeah Hospital, recommended that the patient undergo chemotherapy; however, J.B.'s wife rejected that proposal. She did not want J.B. to know of the diagnosis. J.B. had told his family that if he had cancer, he would commit suicide. J.B.'s father and brother had had cancer, and the latter had committed suicide. J.B.'s wife and sister believed his threat to be sincere. Based upon the foregoing, J.B.'s wife implored J.B.'s doctors not to disclose his true condition. The families of J.B. and Respondent had been friends for many years going back to their common home in Central America. Respondent knew of J.B.'s diagnosis, and agreed to become his treating physician in November, 1987. Respondent did not tell J.B. of his true medical condition. Instead, Respondent let J.B. presume discomfort and other symptoms were the result of years of heavy drinking. In November, 1987, Respondent had been in private practice only a short time and was unfamiliar with office practices and billing procedures. Respondent did nothing to become familiar with billing practices, and relied on an employee who he mistakenly believed was competent to complete billing from the patient charts. When J.B. first presented at Respondent's office, he complained of abdominal pain. Further J.B. had discovered lumps which concerned him. To pacify J.B., Respondent suggested that a lymph node be removed and biopsied. J.B. and his wife discussed the removal of the lump and agreed that such removal would be appropriate. J.B. wanted to know that the lump was not cancer, and his wife wanted to know that the cancer had not spread or metastasized beyond the original sites. Respondent performed the lump removal in November, 1987, and billed J.B.'s medical insurance for same. At the time of this surgery Respondent was fully aware of J.B.'s medical condition, and knew that the procedure would not affect the medical condition, treatment, or life expectancy of the patient. The only medical result of the procedure was the uplifting of J.B.'s mental attitude since the lump was not cancer. In March, 1988, Respondent performed a colonoscopy with biopsy on J.B. This procedure was suggested as Respondent had presented with rectal bleeding, a symptom common in terminal cancer patients, and was desirous of some diagnosis as to the medical origin of the bleeding. Instead of advising J.B. that the bleeding could be consistent with the known medical condition, Respondent went ahead with the colonoscopy after less intrusive examinations did not establish the origin of the blood. At the time of the colonoscopy, Respondent knew that the procedure would not affect the medical condition, treatment, or life expectancy of the patient. Again, the only beneficial effect from the colonoscopy was an uplifting of J.B.'s mental attitude since the colonoscopy results, which were medically inconclusive, did not disclose cancer to J.B. Even if the colonoscopy had revealed some medical condition which could be treated, it would not have been medically necessary given J.B.'s other, overriding, condition. Anemia, a condition resulting from the loss of blood which is common in terminal cancer patients, could be treated without the colonoscopy procedure. Respondent did not refer J.B. to a psychiatrist for mental evaluation or confirmation as to the suicidal ideation but accepted J.B.'s wife's representations regarding his mental state. Respondent did not allege J.B. had expressed suicidal thoughts to him and did not report same in his medical notes. At all times material to the treatment of J.B., Respondent performed medical services through a company owned by his wife. This company, Sigma Medical Center, submitted bills for the services afforded J.B. on the standard billing forms known as "HCFA 1500." Respondent, as the treating physician, was required to sign all HCFA 1500 forms submitted regarding services for J.B. By executing the HCFA 1500 form Respondent certified that the information was correct and the procedures billed for were medically necessary and appropriate. In this case, Respondent has admitted that numerous billing errors occurred, that the HCFA 1500 forms were incorrect, and that an over-billing regarding services provided to J.B. resulted. For example, consultation visits are billed at a higher rate than regular office visits. Respondent routinely billed J.B.'s visits at the consultation rate even though there was no consultation to be given. Second, Respondent billed post-operative visits which should have been included in the surgical charges separately. Third, J.B. returned for office visits more frequently than would be expected because of the pain management Respondent employed. Because J.B.'s wife would not allow Respondent to prescribe any pain medications which J.B. might associate with cancer, he ended up taking quantities of other prescriptions to manage the pain and to return to Respondent frequently due to the unexplained (to him) reoccurrence of pain. Despite an admission that he reviewed the HCFA 1500 forms before signing them, Respondent maintains he did not, at the time, know that the billing was inaccurate. This assertion has not been deemed credible As to various tests ordered by Respondent for J.B., it is concluded that the following tests were medically unnecessary: the RPR test designed to detect syphilis infection (a STD was the least of this patient's worries), the FTA (a follow-up test to the RPR), and thyroid studies. Given the totality of the circumstances, Respondent's care and treatment of the patient, J.B., fell below the standard of care and skill which a reasonably prudent physician under similar circumstances and conditions would recognize as acceptable. As to DOAH case no. 94-0778 L.G. was an employee in Respondent's office. Unbeknown to Respondent, L.G. took samples of aerobid and proventil without a prescription for the drugs. An aerobid inhaler is used to control the symptoms of bronchial asthma. Proventil is also used to control bronchospasm which may be associated with asthma. L.G. took the samples with the intent that she would forward them to a relative in Cuba who suffers from asthma. L.G. had access to the samples. Respondent had never treated L.G. and there would have been no medical justification to dispense the samples to her. Although somewhat incredulous, Respondent's admission that he had dispensed the samples to L.G. was given, to his understanding, to end the investigation of the matter. He mistakenly believed that if he made the admission the matter would be closed. L.G.'s account as to the events of her removing the samples without Respondent's knowledge has been accepted. Nevertheless, the statement Respondent gave to the Department in connection with this incident was false.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Agency for Health Care Administration, Board of Medicine, enter a final order determining the Respondent violated Sections 458.331(1), (n) and (t), Florida Statutes, in the care provided to patient, J.B., suspending his license for a period of one year, placing him on probation for a period of two years thereafter, and imposing an administrative fine in the amount $10,000. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 24th day of December, 1996. JOYOUS D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 1996. APPENDIX Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1 through 17, 19 through 39, 42 through 46, 48 through 52, 54 through 65, 69, 70, and 74 are accepted. Paragraph 18 would be rejected as contrary to the weight of the credible evidence IF J.B. had been sincerely suicidal; however, in this case Respondent did not refer J.B. to a psychiatrist, did not make an independent confirmation of J.B.'s mental state, and did nothing to which J.B.'s wife did not agree--therefore, it is impossible under the facts of this case to know whether or not J.B. should have been told. Under most circumstances, J.B. should have been told, and it is accepted that the care afforded to J.B. fell below the standard of care a reasonably prudent similar physician would have provided. Respondent's whole theory of this matter fails because Respondent never independently confirmed and had J.B. properly assessed, by a physician competent to make such assessment, as to whether this major hoax was appropriate. With all due respect to Dr. Blaustein, he merely relied on factual conclusions which are unsupported by medical records in this case. Paragraphs 40 and 41 are rejected as irrelevant because the examination was medically unnecessary regardless of how performed. Paragraph 47 is rejected as contrary to the weight of the credible evidence; this procedure, like others, was medically unnecessary and below the standard of care but its primary purpose was to pacify the patient and his wife regarding the rectal bleeding. Had Respondent been forthright this procedure would not have been performed. The overbilling for the procedure was for financial exploitation of the patient's insurance. Paragraph 53 is rejected as irrelevant because the studies were medically unnecessary anyway. Paragraphs 66 through 68 are rejected as irrelevant since the diagnosis would have always been subservient to the primary diagnosis and Respondent's services in this regard were medically unnecessary. Paragraph 71 is rejected as contrary to the weight of the evidence. L.G. was not Respondent's patient. L.G. stole the drugs and Respondent covered for her with the misguided idea that it would solve the problem and the investigation would be over. Paragraphs 72, 73, 75, 77, and 78 are all rejected since L.G. was not a patient they are irrelevant or contrary to the weight of the credible evidence. Rulings on the proposed findings of fact submitted by the Respondent: 1. Paragraphs 1 through 6, 8, 10, 11, 12, 18, 19, 22, 23, 24, 31, 32, 38 through 48, 51, 55 through 64, 68 through 74, 77, 81, 82, 84, 85, 86, 89 through 92, 100, 107 through 120, 122, and 123 are accepted. Paragraph 7 is rejected as speculation or irrelevant given the overriding issues of this case; further rejected as not credible. Paragraph 9 is rejected in part as contrary to the weight of the credible evidence as to the issue of money; otherwise, as to the families' long- standing friendship accepted. The credible evidence in this case supports the conclusion that Respondent was overpaid for unnecessary services until J.B.'s insurance ran out; that he did not require payment thereafter is irrelevant. It may also have been Respondent's motive for overcharging the insurance before it ran out. Paragraphs 13 through 17 are rejected as irrelevant or contrary to the weight of credible evidence. Respondent was not authorized to delegate the medical decisions regarding J.B.'s care to his wife or family. As the physician he was responsible, regardless of how difficult the situation, to either practice within the standard the care or refer the patient to a physician able to do so. Obviously, any physician would want to keep J.B. comfortable, that is why unpleasant procedures such as the colonoscopic examination were, in part, medically unnecessary. Respondent's highest obligation was to the patient not that person's family or their perceived (and uncorroborated by Respondent) notions as to the patient's mental state. Paragraph 20 is rejected as irrelevant. Paragraph 21 is rejected as contrary to the weight of credible evidence. Paragraphs 25 through 30 are rejected as irrelevant or contrary to the weight of the credible evidence. Paragraph 33 is rejected as contrary to the weight of credible evidence. Paragraphs 34 through 37 are rejected as irrelevant or contrary to the weight of the credible evidence. Paragraphs 49, 50, 52, 53, and 54 are rejected as irrelevant or contrary to the weight of the credible evidence. The fact that J.B. was encouraged by the false or meaningless services performed by Respondent does not justify the performance or billing for same. Respondent could have listed a textbook full of conditions which J.B. did not have to encourage him but it would not have been based on medical reality any more than the colonoscopy was. Lying to a patient to make him fell better and for financial gain is not acceptable practice. Paragraphs 65, 66, and 67 are rejected as irrelevant or contrary to the weight of the credible evidence. Paragraphs 75, 76, 78, 79, and 80 are rejected as irrelevant or contrary to the weight of the credible evidence. 13. Paragraphs 83, 87, 88, 93, 94, 95, 96, 97, 98, 99, 101, 102, 103, 104, and 105 are rejected as irrelevant or contrary to the weight of the credible evidence. Respondent was responsible for all insurance billing for Sigma Medical Center. Paragraph 106 is rejected as contrary to the weight of the evidence as to whether or not L.G. was a patient at the time of the incident complained of, or irrelevant if stating such relationship was at a prior time. Paragraph 121 is rejected as irrelevant. Paragraph 124 is rejected as contrary to the weight of credible evidence. COPIES FURNISHED: Hugh R. Brown Senior Attorney Agency for Health Care Administration Office of the General Counsel Post Office Box 14229 Tallahassee, Florida 32317-4229 Harold M. Braxton, Esquire Suite 400, One Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156-7815 Dr. Marm Harris Executive Director Board of Medicine Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792
