The Issue Whether disciplinary action should be taken against Respondent for alleged violation of Section 458.1201(1)(m) Florida Statutes, as set forth in Petitioner's complaint.
Findings Of Fact Respondent Fahmy M. Rizk is a physician licensed in the State of Florida who engages in the general practice of medicine at Fort Myers Beach, Florida. (Testimony of Respondent) During the fall of 1976, Joyce Weidner, Cape Coral, Florida, who was then twenty years old, was a patient of Respondent. Although she could recall making six office visits, Respondent's records reflect that only four were made during the months of October and November, 1976. On October 14, she first saw Respondent with complaints of pain in her left chest area when swallowing. At that time, she told him that she had epilepsy and was taking Dilantin for that condition. Respondent determined that she was suffering from gastritis and prescribed medication. On her next visit, Respondent prescribed a course of treatment for acne that was present on the patient's face, chest and back. During a subsequent visit on November 2, 1916, presumably to check the progress of the acne treatment, Mrs. Weidner returned to Respondent's office at which time he took her into an examining room and instructed her to disrobe. She did so and covered herself with a sheet until he returned. He proceeded to place her feet in stirrups on the examining table and conduct an internal pelvic examination with no one else in the room. He pressed her abdomen and asked her if she suffered any pain there, and she answered in the affirmative. She asked him if anything was wrong and he said something "vague" about her kidneys. After the examination, he asked her to return in two weeks. On November 16, she returned and again he told her to disrobe when in the examining room. He remained in the room while she did so and gave her nothing to cover herself with at this time. The door was closed and no one was present in the room except the patient and Respondent. Respondent again conducted an internal examination, but did not wear a rubber glove on his hand. After inserting his finger into her vagina, be then proceeded to rub her clitoris and to hold and "roll" the nipple of each breast in turn with the fingers of his other hand. During this time, he asked her if she enjoyed sexual relation with her husband and whether she desired to climax more or less often. During the examination, she had expressed concern to Respondent that her nipples might be abnormally large. While holding the right nipple, Respondent said words to the effect that her nipples would be very nice for a man to suck. At some time during the examination, Respondent may have asked her if she ever had any discharge from the nipples. After the examination was concluded, Mrs. Weidner dressed and left the office. She thereafter reported the incidents to the Lee County Medical Association who advised her to contact Petitioner. She thereafter filed a complaint with Petitioner in December, 1976 Mrs. Weidner made her complaint because she believed that Respondent's conduct toward her was unethical and "very degrading." (Testimony of Weidner, Respondents' Exhibit 5) Respondent's office records concerning Mrs. Weidner do not disclose that Respondent conducted a pelvic examination during the November 2 visit. His notes concerning the November 16 visit reflect that he had observed that her nipples were more prominent than usual and examined them with his fingers to see if there was any discharge. He also recorded that she said her mother has the same form of nipples and asked him in an emotional state if he found any abnormalities but that he assured her they were normal. His records show that he examined her vagina, cervix and ovaries and found them to be normal. (Respondent's Exhibit 3) Respondent denied in his testimony that he had given Mrs. Weidner an internal examination of her female organs during the November 2 visit. However, he testified that during the course of his treatment for her acne, he had observed that she had abnormal nipples, and he was concerned about the possibility of cancerous tumors in the breast because acne is sometimes a symptom of such a condition. He therefore examined her breasts during the November 16 visit in order to determine if there was any discharge from the nipples. Since she was concerned about the shape of her nipples and those of her mother, and due to her history of epilepsy, he did not wish to upset her regarding the possibility of tumors. To reassure her, he told her that her nipples would be very nice for her children to suck and also that her husband would be happy to suck them. He claimed that he wore a rubber glove on his right hand when examining her vagina, but no glove on the other hand which was on the abdomen. He denied touching her clitoris during the examination. Although he concede that he had asked if she had a normal sex life to determine if she ever had bleeding or pain, he denied that he had asked her if she enjoyed having sex with her husband. He admitted that there was no third person in the room during the November 16 examination of Mrs. Weidner. Respondent further acknowledged that he had been sent a letter by Petitioner after the Weidner complaint concerning examinations of female patients, and that he had written to the executive director of Petitioner stating that he would not perform any further such examinations without the presence of a third person. (Testimony of Respondent, Petitioner's Exhibit 1. Respondent's Exhibit 3) There are some endocrine hormonal causes for acne and one of these could be ovarian tumors which are hormonally active. (Testimony of Howington) It is found that although there was sufficient medical justification for Respondent to examine Mrs. Weidner's breasts and perform a pelvic examination on November 16, 1976, there was no such justification for his improper and suggestive remarks as related by the patient and admitted in part by Respondent. Neither was there any valid medical reason for rubbing her clitoris with his hand. Mrs. Weidner's recitation of the events that transpired while under Respondent's care are accepted as fact and Respondent's denials are not deemed credible. Although Mrs. Weidner's testimony concerning the number of office visits was imprecise, there is no dispute that she visited Respondent on November 2 and 16, 1976, when the improper acts occurred. On July 14, 1977, Mrs Maureen Abel, than twenty-five years old, of Fort Myers, Florida, became a patient of Respondent for treatment of a chronic skin rash. The rash was present on her chest, arms, back and stomach. During that visit, Respondent took her into his examining room with no one else present, had her pull down the top of her garment and examined the rash with a magnifying glass. He asked her if she had a problem with nervousness and she replied in the negative. During the course of further questioning, she informed him that she normally ha irregular menstrual periods. She also told him that she had a prescription for medicine from another doctor which she took when several months elapsed without a menstrual period. Respondent told her that she should be on birth control pills to regulate her period and that that would control the rash. He told her to return in ten days when he would get her started on birth control pills. He further prescribed medication for the rash. She returned on July 23 and informed Respondent that she thought she might be pregnant because he had not had a regular period and was feeling nauseous. He took her into the examining room, told her to take her clothes off and lie on the table. She did so, but there was no robe or other covering for her body. Respondent, with no third party present, examined her breasts stomach, and proceeded to perform a pelvic examination. He said that everything was normal and she did not appear to be pregnant, but had indigestion which was causing the nausea. He prescribed medication for the indigestion, gave her a four month supply of birth control pills, and told her to return in a month. On August 26, Mrs. Abel returned and told Respondent that her rash had not gone away and that she was still feeling somewhat sick. She also told him that she had taken the birth control pills but did not have a period, and was having a vaginal discharge which caused itching and concerned her. She informed him that she was gaining weight, and he said that she should go on a strict diet. He then escorted her to the examining room and closed the door. No one else was present in the room. He told her to take her clothes off and, as she did so, he took each piece of clothing and hung it on the back of a door. He told her to lie down on the examining table and, after she did so, he examined her breasts and stomach. He then "fluffed up" her pubic hair with his fingers and told her he was going to give her an internal examination. He placed her feet in the stirrup which were too far apart and caused some pain to her left leg. He did not adjust the stirrups, but massaged her left leg and the pain disappeared. He then put on rubber gloves and did an internal examination. During the course of the examination, he told her that he felt something there and wanted to take a culture. She agreed and he proceeded to insert an instrument into her vagina for this purpose. After taking the specimen and discarding the instrument, he began examining her vulva area with his fingers telling her that she was very inflamed and infected. He began rubbing the vulva area and, while doing so, told her that she was very dirty there and that she should use a mixture of peroxide and water every night to clean the area. She was insulted at this comment. He continued rubbing this area and she asked him if he knew what he was doing. He replied that he was checking for inflammation. Respondent then started rubbing her clitoris and asked her what kind of orgasms she had and if they were rapid or slow. She informed him that she was able to control herself and then told him that he was hurting her in order to get him to cease his actions. He then took her legs out of the stirrups, rubbing his hand on her left leg, up her left side to the stomach, over her breasts and to her left cheek which he patted several times. She saw his face coming towards her and jumped up and got off the table. He then grabbed her by her left arm and pulled her over by the scales, telling her that he wanted to weigh her, and directed her to stand on the scales. She did so and then dressed and left the office after paying Respondent's wife, his receptionist, the charge of $43.00. A few days later she cancelled payment on the check, but nevertheless made a claim to her insurance carrier for this amount. She thereafter sought the advice of another physician on September 22, 1977, who told her she was 16 weeks pregnant. She delivered the baby on March 10, 1978. Mrs. Abel was upset and angry that Respondent had "played" with her "private area." (Testimony of Abel, Respondent's Exhibits 5, 7-9) Respondent testified that at no time did Mrs. Abel complain of nausea or raise the possibility that she was pregnant, nor did he perform an internal examination of her on July 23. His office records for that date merely reflect that she had gas and indigestion and that he prescribed contraceptive pills. He further testified that on the August 26th visit, she complained of heavy discharge and itching of her genitals and that his internal examination on that date revealed the existence of a malodorous discharge with inflamed internal vaginal walls, and that he took a sample for culture and sensitivity. His office notes support testimony in this respect. Respondent maintained that his wife was present in the examining room to assist him in taking the specimen for laboratory analysis. She corroborated his testimony in this regard. He denied weighing the patient, advising her to use peroxide for the discharge, or rubbing her leg while in the stirrup. He further denied hanging up her clothes prior to the examination, or touching her abdomen, breast and cheek at the end of the examination. He conceded that he told her she was and showed her the speculum covered with discharge and told her to smell it because it had a bad smell and was a very bad infection. He further denied rubbing her clitoris and testified that this would have been impossible to do because she was so inflamed. He did, however, examine the vulva area for she presence of infection. He testified that it was necessary to open the vulva with one hand while inserting the speculum with the other in order to avoid taking hair with the speculum which would hurt the patient, but that he did not make the movement with his hand on her pubic hair as recounted by Mrs. Abel. Laboratory examination of the vaginal discharge sample revealed the presence of escherichia coli. (Testimony of Respondent, supplemented by Respondent's Exhibit 6, Testimony of M. Rizk) It is found that although there was sufficient medical justification for Respondent to perform pelvic examinations of Mrs. Abel on July 23 and August 26, 1977, there was no justification for his improper and suggestive remarks as related by the patient nor was there any valid medical reason for rubbing her clitoris. Mrs. Abel's recitation of the events that transpired while under Respondent's care are accepted as fact. Respondent's denials and the testimony of his wife supporting such denials in part are not deemed credible. Neither are Respondent's office records considered reliable or worthy of supporting Respondent's denials of improper conduct as described by Mrs. Abel. In response to hypothetical questions posed to Petitioner's medical experts, it was their opinion that the actions of Respondent with respect to both Mrs. Weidner and Mrs. Abel constituted immoral and unprofessional conduct and failed to conform to the standards of acceptable and prevailing medical practice in the community. The hypothetical questions were based on the words and actions of Respondent as described in the testimony of Mrs. Weidner and Mrs. Abel. It was the opinion of one expert, however, that Respondent's failure to diagnose Mrs. Abel's pregnant condition did not constitute unprofessional conduct under the circumstances. Respondent's motion to strike the testimony of these exerts based on the fact that they had reviewed summaries of Petitioner's prehearing investigation of the patients' complaints was denied because both experts testified in response to facts contained solely in the hypothetical questions and did not independently rely upon additional facts contained in the investigative reports. (Testimony of Howington, Purvis) Respondent practiced medicine Egypt for approximately twenty-five years. He came to the United States in 1971 and served as medical director of a state hospital in Kansas for approximately three and one-half years. He came to Florida some two years ago, and after being licensed in the state, started to practice in the Fort Myers area in June of 1976. A number of his former patients have written to him expressing gratitude for his professional services. (Testimony of Respondent, Respondent Exhibit 10)
Recommendation That Petitioner suspend the license of Respondent to practice medicine for a period of two years pursuant to subsection 458.1201(3)(a)4, Florida Statutes, for violation of subsection 458.1201(1)(m), Florida Statute. DONE and ENTERED this 18th day of September, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard C. McFarlain A. Russell Bobo 610 Lewis State Bank Building Tallahassee, Florida 32301 James A. Franklin, Jr. Post Office Box 280 Ft. Myers, Florida 33902 George S. Palmer, M.D. Executive Director Board of Medical Examiners Oakland Building, Suite 220 2009 Apalachee Parkway Tallahassee, Florida 32301
Findings Of Fact At all material times, Respondent has been currently licensed as a physician in Florida, holding license ME 0033496. Patient 1 was a 32 year old female who was admitted to Lykes Memorial Hospital on March 24, 1988, due to upper and lower abdominal pain, vomiting, and early signs of dehydration. Respondent placed Patient 1 on intravenous fluids and administered medications to control the vomiting. Patient 1 underwent diagnostic studies, including an upper gastrointestinal series, and received medication for the abdominal pain. After five days of hospitalization and tests, the source of the pain had not yet been identified. However, the lower abdominal pain had ceased, and the upper abdominal pain had lessened considerably. In general, the patient had improved during the hospitalization. At this point, Respondent discharged Patient 1 from the hospital with a final diagnosis of acute gastroenteritis. Respondent directed Patient 1 to return to his office for a follow-up visit. Five or six days after discharge, Patient 1 called Respondent and told him that her symptoms, which she now linked with taking birth control pills, had disappeared. Respondent advised her not to resume taking the pills, but to return to her gynecologist. With respect to Patient 1, Respondent practiced medicine with that level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being unacceptable under similar circumstances. Patient 2 was a 37 year old male who was admitted to Lykes Memorial Hospital on May 9, 1988, after having been found by a relative in a state of semi-consciousness. The admitting diagnosis was a probable overdose of lithium and possibly Thorazine. Respondent treated the drug toxicity during Patient 2's three-day hospitalization. Respondent became increasingly lucid during his hospitalization, and Respondent successfully managed the event of drug toxicity. Respondent tried to elicit from Patient 2 a medical and psychiatric history, but Patient 2 would or could not cooperate. Respondent was unable to identify any relatives or friends of Patient 2, including the person who brought him to the hospital. Respondent could not even find out where Patient 2 obtained the lithium and Thorazine that he was taking. Respondent treated the altered mental status that Patient 2 presented. There was no need during the short period of hospitalization to obtain a psychiatric consultation. Resumption of psychotropic medication so soon after the drug intoxication would have been imprudent. Consistent with the policy of Lykes Memorial Hospital, which has no psychiatrists on staff, Respondent referred Patient 2 to the Hernando County Mental Health Center. He directed Patient 2 not to take lithium or Thorazine until instructed to do so by a psychiatrist or other physician at the mental health center. Respondent and the hospital ensured that Patient 2 got to the mental health center following discharge. With respect to Patient 2, Respondent practiced medicine with that level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being unacceptable under similar circumstances. Patient 3 was a 49 year old male who was admitted to Lykes Memorial Hospital on or about February 5, 1988, with complaints of difficulty breathing. At the time, Patient 3 had been diagnosed with lung cancer that had metastasized to the spine and had undergone maximum radiation therapy. He was paralyzed from the waist down and in the last year of his life. He steadfastly refused all diagnosis or treatment involving radiation. By his own request, Patient 3's standing medical orders were "Do Not Resuscitate." He only wanted to be made comfortable. The acute illness resulting in Patient 3's admission was pulmonary congestion. There is some likelihood that the symptoms of infectious bronchitis with which he presented at time of admission were exacerbated by his chronic obstructive pulmonary disease. There is a possibility that some of Patient 3's discomfort was caused by mucous plugs in the lungs, whose capacity had already been diminished by the other diseases. However, mucous plugs were not affecting Patient 3 at the time of discharge. Respondent discussed with Patient 3 the possibility of cleaning out his lungs with a bronchoscope, but Patient 3 refused. Respondent treated Patient 3's discomfort with oxygen, diuretics, and increased steroids. Patient 3 had been receiving steroids due to a spinal disorder resulting from the cancer. Patient 3 was already receiving bronchodilators at the time of his admission. There is also a possibility that Patient 3 suffered from superior vena cava syndrome in which one or more tumors would block veins of the thorax. However, diagnosis of the condition would have been invasive, and Patient 3 refused such interventions. Treatment of such a condition would likely have required radiation, and Patient 3 would not tolerate additional radiation treatment. Respondent discussed with Patient 3 the possibility of superior vena cava syndrome and the possible treatment, but Patient 3 declined this intervention. Patient 3 received no EKG while in the hospital. The emergency medical services team transporting Patient 3 to the hospital performed a rhythm strip, which provides information about limited cardiac functions. Although Patient 3's potassium levels were slightly below normal at discharge, they had improved during hospitalization. With respect to Patient 3, Respondent practiced medicine with that level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being unacceptable under similar circumstances. Respondent's medical records represent the bare minimum required by law to justify the course of treatment. Matters discussed with Patient 3 were not always recorded. Patient 3's decisions concerning diagnosis and treatment were likewise not always recorded. But, on balance, the medical records adequately documented the course of treatment of Patient 3 while under Respondent's care at the hospital. Patient 4 was a 68 year old male who was admitted to Lykes Memorial Hospital on or about February 14, 1988, with complaints of a persistent cough and some gastric upset. He was suffering from exacerbation of chronic obstructive pulmonary disease. Respondent appropriately treated Patient 4's conditions. Patient 4 experienced problems with certain medications, which interfered with his progress, but he was drinking and eating without difficulty prior to his discharge. X-rays taken at admission and discharge revealed no significant change in Patient 4's condition during his eight-day hospitalization. At discharge, Respondent ordered Patient 4 to return for an office visit in two weeks. Patient 4's condition continued to improve following discharge. With respect to Patient 4, Respondent practiced medicine with that level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being unacceptable under similar circumstances.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Business and Professional Regulation enter a final order dismissing the administrative complaint. ENTERED on October 11, 1993, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on October 11, 1993. APPENDIX Treatment Accorded Proposed Findings of Petitioner 1-5: adopted or adopted in substance. 6: rejected as unsupported by the appropriate weight of the evidence. 7-12: adopted or adopted in substance. 13: rejected as unsupported by the appropriate weight of the evidence. The pain or discomfort had lessened considerably. 14: adopted. 15: rejected as unsupported by the appropriate weight of the evidence. 16-17: rejected as irrelevant and unnecessary. 18: rejected as unsupported by the appropriate weight of the evidence. and 21-23: adopted or adopted in substance. and 24: rejected as unsupported by the appropriate weight of the evidence. 25: adopted except that Respondent and the hospital ensured that the patient was referred to a mental health treatment center as soon as his condition was sufficiently stabilized to allow discharge from the hospital. 26: rejected as unsupported by the appropriate weight of the evidence. 27: adopted or adopted in substance. 28: rejected as unsupported by the appropriate weight of the evidence. The record does not suggest how a psychiatrist would obtain a history from an unwilling patient. 29: adopted with respect to the period of the hospitalization through the point at which the patient could recommence active psychiatric treatment. 30: rejected as unsupported by the appropriate weight of the evidence. Respondent duly referred the patient to an appropriate facility for the treatment of the patient's underlying mental health problems. 31: rejected as recitation of evidence and subordinate. 32: rejected as legal argument and unsupported by the appropriate weight of the evidence. 33-36: adopted or adopted in substance. 37-38: rejected as unsupported by the appropriate weight of the evidence. 39: rejected as subordinate. 40: rejected as unsupported by the appropriate weight of the evidence. 41-43 (through third sentence): adopted or adopted in substance. 43 (fourth sentence): rejected as unsupported by the appropriate weight of the evidence with respect to this patient. 44-48 (first sentence): adopted or adopted in substance. 48 (except first sentence)-50: rejected as irrelevant and subordinate. 51-52 and 54: adopted or adopted in substance. 53: rejected as unsupported by the appropriate weight of the evidence. 55-56: adopted or adopted in substance. 57-59: rejected as unsupported by the appropriate weight of the evidence. Treatment Accorded Proposed Findings of Respondent 1-6: adopted or adopted in substance. 7: rejected as legal argument. 8: rejected as recitation of evidence. 9: rejected as legal argument and recitation of evidence. 10: adopted or adopted in substance. 11: rejected as recitation of evidence. 12: rejected as recitation of evidence and subordinate. 15: adopted or adopted in substance. 16 (first sentence): rejected as legal argument. 16 (second and third sentences): adopted or adopted in substance. (fourth sentence): rejected as recitation of evidence. (first sentence): rejected as legal argument. 17 (second sentence): adopted or adopted in substance. 17 (third sentence)-19 (first sentence): rejected as recitation of evidence. 19 (second sentence): adopted or adopted in substance. 20: rejected as recitation of evidence. 21: rejected as legal argument and recitation of evidence. 22: rejected as legal argument and recitation of evidence. 23: rejected as subordinate. 24: rejected as recitation of evidence. 27: adopted or adopted in substance. 28-31 (second sentence): rejected as legal argument and recitation of evidence. 31 (third sentence): adopted or adopted in substance. 32-34: rejected as legal argument and recitation of evidence. 38: adopted or adopted in substance. 39-43: rejected as legal argument, recitation of evidence, and subordinate. COPIES FURNISHED: Dorothy Faircloth Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Barbara Whalin Makant, Staff Attorney Department of Business and Professional Regulation Northwood Center, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0972 William B. Taylor, IV Macfarlane Ferguson P.O. Box 1531 Tampa, FL 33618
The Issue The issue in this case is whether the license of Allen B. Erde, M.D., should be disciplined by the Florida Board of Medicine based upon actions he is alleged to have taken, or failed to have taken, between August and November, 1986, in the care and treatment of his patient, C.W.
Findings Of Fact At all times material hereto, Respondent has been licensed as a physician in the State Of Florida, having been issued license number ME-0008625. Respondent was C.W.'s obstetrician during her pregnancy in 1986, and initially examined her on August 26, 1986, when she was six weeks pregnant. During this initial visit, C.W. was informed by Respondent that her pregnancy was progressing normally. At her second visit, on September 23, 1986, Respondent detected no fetal heartbeat. However, he informed C.W. that this was not a problem. He requested that she bring her husband with her for her third visit so that they both could hear the heartbeat. Prior to her third visit, C.W. saw Respondent in his office on October 6, 1986, complaining of urinary problems, and a stiff neck and back. Respondent treated her for a urinary tract infection. Later that same day she began to bleed vaginally, passed clots and experienced cramping pains. She then saw Respondent at the Winter Haven Hospital emergency room, but was told that nothing seemed wrong. Respondent advised her simply to go home, put her feet up, and rest. There were several other occasions during October, 1986, when C.W. experienced cramping and vaginal bleeding. She called Respondent each time to express her concerns, but was told simply to lie down, and keep her feet up. On October 22, 1986, C.W. and her husband visited Respondent for her third scheduled visit. No heartbeat was heard. Respondent again told C.W. that there was no cause for concern, the baby was just small and probably behind her pelvic bone. C.W. was presumably 14 weeks pregnant at this time, but Respondent's office records indicate that the fetus was decreasing in size, there was no weight gain, and no heartone. C.W. continued to experience pain and bleeding, sometimes accompanied by clots. She was not gaining weight, and had none of the other indications of pregnancy which she had experienced in her prior pregnancies. C.W. continued to express concern to Respondent, but his advice remained simply to lie down, and keep her feet up. In response to a five day episode of bleeding, C.W. saw Respondent in his office on November 12, 1986. Although she was 17 weeks pregnant at that time, Respondent's office records indicate a fetus 14 weeks in size. Respondent did not order any fetal viability tests, and there is no evidence in his office record that he considered any testing of the fetus. C.W. saw Respondent for her fourth scheduled visit on November 19, 1986, and, again, no fetal heartbeat was detected. She was still experiencing vaginal bleeding. Her uterus was only 10-12 weeks in size, although she was presumably 19 weeks pregnant at this time. C.W. was distraught, and expressed great concern to Respondent that she was presumably almost five months pregnant and no fetal heartbeat had ever been detected. C.W. demanded that Respondent do something. He then ordered a quantitative Beta-subunit Human Chorionic Gonadotropin blood test to determine her hormone level. On November 2l, 1986, Respondent called C.W. at her place of employment, and informed her that her hormone levels were extremely low, and that she might not have a viable pregnancy. He told her she should keep her next regularly scheduled appointment with him, but if she experienced any severe bleeding or cramping to call him. C.W. left work and became increasingly upset. She contacted him later on that same day for a more complete explanation of what she should expect. Respondent told her that the fetus was "reversing itself and was losing weight instead of gaining." C.W. was not informed by Respondent that the fetus was not viable, and she took his advice to mean that if she was extremely careful there was still a chance of carrying the pregnancy to term. Respondent admitted to the Petitioner's investigator, Jim Bates, that he knew the fetus was dead at this time, but he was trying to let nature take its course, and if she did not abort in two or three months, he would take the fetus. Because she was extremely upset and her friends were concerned about the advice she was receiving from the Respondent, an appointment with another obstetrician, Dr. Vincent Gatto, was made for C.W. by one of her friends. Dr. Gatto saw C.W. on or about November 21, 1986, and after examining her he immediately diagnosed her as having had a missed abortion. A sonogram confirmed this diagnosis. A dilation and curettage was performed on C.W., and subsequent pathological reports revealed remnants of an 8-week fetus. The medical records which Respondent maintained of his care and treatment of C.W. are incomplete and contain discrepancies concerning his evaluation of the patient. They do not reflect C.W.'s numerous telephone calls, or that she was increasingly upset over the course of her pregnancy. There is no delineation of a plan of treatment in these records, or any explanation of the type of treatment he was pursuing for her. There is no explanation or justification in these records of Respondent's failure to order a sonogram or test, other than the one Beta-subunit Human Chorionic Gonadotropin, for C.W., although she repeatedly reported vaginal bleeding and cramping, and there was a continuing inability to detect a fetal heartbeat. Respondent failed to carry out the correct tests on C.W., and therefore, he failed to make a correct diagnosis of missed abortion, or to treat her correctly. He allowed her to carry a dead fetus for almost two months. Retention of the products of a non-viable pregnancy can lead to several complications, including infection, blood clotting and psychological trauma. In fact, this experience caused C.W. severe emotional anguish. In his care and treatment of C.W., Respondent failed to meet the standard of care that is required of a physician practicing under similar conditions and circumstances.
Recommendation Based upon the foregoing, it is recommended that Florida Board of Medicine enter a Final Order suspending Respondent's license to practice medicine for a period of five years, and imposing an administrative fine of $3,000. DONE AND ENTERED this 21st day of August, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1989. APPENDIX (DOAH CASE NO. 88-4785) Rulings on the Petitioner's Proposed Findings of Fact: Adopted in Finding l. Adopted in Finding 2. Adopted in Finding 3. Adopted in Finding 4. Adopted in Finding 5. 6-7. Adopted in Finding 6. Adopted in Finding 7. Adopted in Finding 8. Adopted in Finding 9. Adopted in Finding 10. Adopted in Finding 11. Rejected as irrelevant. 14-17. Adopted in Finding 13. 18-21. Adopted in Finding 12. 22. Adopted in Finding 14. The Respondent did not file Proposed Findings of Fact. COPIES FURNISHED: Mary B. Radkins, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Allen B. Erde, M.D. P. O. Box 1817 Winter Haven, FL 33883-1817 Allen B. Erde, M.D. 198 First Street, South Winter Haven, FL 33880 Dorothy Faircloth Executive Director Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth Easley, General Counsel Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0729
Findings Of Fact Stanley E. Ross, D.D.S. is licensed to practice dentistry in Florida, and at all times relevant herein was so licensed. His practice is limited to periodontics and Ross is a board certified periodontist. In 1975 Ross was associated with the Professional Association owned by Dr. Marvin M. Rosenberg, also a board certified periodontist. Offices were occupied in Boca Raton and West Palm Beach with each dentist spending part of each week at each office. Although they practiced under the same roofs it was very infrequent one would treat a patient of the other. Nathan Wolfson, a 61 year old retiree, was referred to Rosenberg and Ross for examination and possible periodontal treatment by Dr. Medoff, a dentist engaged in general practice. Following routine pre-operative procedures, extensive periodontal surgery was performed by Ross on Wolfson on Friday, November 7, 1975. Numerous incisions were made in the gums, tissue and bone was removed, and the tissue sutured back to the jaw. The operation lasted three to four hours and Wolfson departed the dental office ambulatory. Ross had prescribed Percodan for Wolfson to take for pain expected following the extensive surgery. On Sunday Wolfson began experiencing pain in the neck and across the shoulders and his wife called Ross. When the latter inquired and was advised that Wolfson was not taking the Percodan that had been prescribed Ross told her that the medication had been given him to take care of the pain and to start using them. Sunday night or Monday morning part of the packing fell out and on Monday Wolfson went to the Boca Raton office to have this replaced. Ross was not in the Boca Raton Office that day and a dental hygienist replaced the packing. One witness testified that Dr. Rosenberg was seen coming out of the operatory with Wolfson and was overheard telling Wolfson that the pain in his neck and across the shoulders was very normal following such surgery. Rosenberg denied ever seeing or talking to Wolfson. On Tuesday November 11, 1975 Wolfson was still uncomfortable and again returned to the Boca Raton office. He told one of the dental assistants that he was experiencing pain in the jaw, neck, across the shoulders and "pressure in the chest". She advised him to describe these pains to Ross. Shortly thereafter Ross came in, looked in Wolfson's mouth and listened to Wolfson's complaints of pain in the neck, jaw and across the shoulders. He gave Wolfson 1 cc of Demerol and 1 cc of Tigan, both intramuscular. Ross remained with Wolfson 10 or 15 minutes until the Demerol took effect and Wolfson's pain eased. Wolfson then departed in company with his wife and his wife's sister-in-law. Wolfson occupied the back seat of their car and the two ladies sat in front. Shortly after leaving Ross' office Mrs. Wolfson turned to look back at her husband and saw he was dead. A passing car directed them to Boca Raton Community Hospital where Wolfson was pronounced dead on arrival after emergency resuscitation steps had failed. An autopsy was subsequently performed on Wolfson and the cause of death reported as "coronary insufficiency following severe atherosclerosis of coronary arteries". The right coronary artery was described as showing "more than 95 percent narrowing of the lumen by atherosclerosis 2.0 cm away from the coronary ostium." A medical witness described the autopsy report as showing such extensive cardiovascular disease as to have made Wolfson a poor risk for heart surgery. On September 2, 1975 Wolfson received a physical examination from Dr. Robbins and the EKG taken was considered normal. Other tests performed at this examination were just outside the range of normalcy and Dr. Robbins would have rated Wolfson's physical condition as fair at the conclusion of this examination. He considered Wolfson physically fit for the periodontal surgery performed. Wolfson had a follow-up appointment with Dr. Robbins on November 10, 1975 which was not kept. Mrs. Wolfson, the widow of Nathan, testified that Nathan Wolfson at his November 11, 1975 visit to Ross told Ross that he was experiencing pain in the neck, jaw, back, chest, and down both arms. Ross denied being told of any pain other than in neck and jaw. Shortly after Wolfson's death Mrs. Wolfson and her son visited Dr. Medoff and told him that Wolfson's complaints of pain following his oral surgery was in the back of his neck and shoulder area. No mention was made to Medoff of any pain in the chest or pain radiating down the arms. Boca Raton Community Hospital records of Nathan Wolfson on November 11, 1975 contain the notation "wife states: left dentist office and suddenly had SOB." Again following Wolfson's death, Mrs. Wolfson, in discussing Wolfson's death with Dr. Robbins, mentioned Wolfson having pains following his oral surgery in the jaw and shoulder. She asked Dr. Robbins if pain in the jaw could be from a heart attack and he told her "yes, sometimes." A medical witness specializing in emergency medicine opined that pain in the jaw, neck and across the shoulders four days following extensive oral surgery would not be recognizable as stemming from cardiac problems as all of these symptoms could be attributed to the oral surgery. Another medical witness whose specialty is internal medicine testified it would be extremely unusual for pains across the back and down both arms to lead to medical practitioner to the conclusion the patient was experiencing cardiac failure. He described classic pre-cardia pain to be in chest radiating down left arm. It also can be from chest radiating down the back. He identified pain across shoulders down back and down both arms as that resulting from a dissecting aneurism of the aorta. No evidence, other than Mrs. Wolfson's testimony, showed Ross was ever made aware Wolfson had pain in the chest or pain radiating down either or both arms. As noted above, shortly after Wolfson's death his widow made no mention of pain in chest or arms to the doctor and dentist to whom she spoke. Pain in the jaw can be indicative of cardiac problems when other significant cause for such pain is not present. Here it is obvious there were other significant causes of pain. Three to four hours in the dentist chair with head back, jaws extended having tissue and bone cut away would undoubtedly result in pain in the jaw for several days. From the evidence presented regarding the condition of Wolfson's cardiovascular system as shown by the autopsy performed, it is questionable that Wolfson would have survived even had medical treatment been available and administered at the time he experienced his actual attack. In the building occupied by Ross in Boca Raton two medical offices were also present. One is occupied by internists and the other office has doctors engaged in family practice. Ross has in the past consulted with both of these offices when medical problems occurred during or prior to performing surgery on his dental patients. These consultations and referrals involved anesthetics as well as actual medical symptoms. Respondent Ross is a well trained and gifted periodontal surgeon. He is held in very high esteem by his colleagues and peers. He serves as visiting professor and guest lecturer of periodontics at the University of Pennsylvania, Boston University, Loyola University (Chicago), Emory University, and Medical College of Georgia. He has lectured at various dental meetings in the U. S., Europe, Mexico, and South America. Here the ultimate factual issue is whether or not from the symptoms presented by Nathan Wolfson to Ross during his office visit on November 11, 1975 Ross should, in the exercise of the degree of care and knowledge expected of a dentist, have recognized that Wolfson was experiencing cardiac problems and required the immediate services of a medical practitioner. From the factual situation as noted in the above findings that question must clearly be answered, no. The evidence presented at this hearing was tainted by animosity and avarice as well as close friendship. The calibre of the latter was more impressive than the former.
