The Issue The issue is whether Respondent is guilty of failing to practice in accordance with the applicable standard of care or failing to keep adequate medical records and, if so, what penalty should be imposed.
Findings Of Fact At all material times, Respondent has been a licensed physician, holding license number ME 44240. He has been licensed in Florida since 1984. Respondent has practiced plastic surgery, particularly cosmetic plastic surgery, for the past 22 years. Respondent is certified by the American Board of Plastic Surgery in plastic surgery. He was also certified in Advanced Cardiac Life Support (ACLS) at the time of the surgery in question. The Board of Medicine previously disciplined Respondent by Final Order filed September 1, 1995, pursuant to a Consent Agreement into which the parties had entered. The Consent Agreement arose from allegations that Respondent had failed to remove a sponge from a breast during breast augmentation surgery. Respondent did not admit the allegations, but agreed to pay a $2000 fine and attend ten hours of continuing medical education. The Administrative Law Judge admitted this evidence strictly for the purpose of penalty, not liability. Respondent performs plastic surgery at the Cosmetic Surgery Center in Fort Lauderdale. The 5000 square-foot facility contains three examination rooms, two operating rooms, one recovery room, and an overnight hospital. Another physician also operates at the Cosmetic Surgery Center, which employs a wide range of staff, including a patient coordinator, nurse practitioner, and a certified register nurse anesthesiologist (CRNA). In the past, the Cosmetic Surgery Center retained a CRNA to assist in surgery on an as-needed basis. However, since mid-2005, the Cosmetic Surgery Center has regularly employed a CRNA after the Board of Medicine issued an Order of Emergency Restriction of License on June 8, 2005. Issued in response to the incident described below, the emergency order requires, among other things, that Respondent employ a CRNA or M.D. anesthesiologist to administer anesthesia at all surgeries, unless the surgery will involve Level I sedation. The emergency order also requires Respondent to obtain an unqualified surgical clearance from every patient's primary care physician. Respondent has performed over 10,000 procedures using Level II sedation over 25 years. Level II sedation leaves the patient conscious, but tranquil, and responsive to painful stimulus or verbal command. Level III sedation leaves the patient unconscious. This case involves a 50-year-old female, S. B., who presented to Respondent's office on July 9, 2003, to discuss the possibility of an abdominoplasty, breast augmentation, and arm lift. Respondent had previously performed an abdominoplasty, which is also known as a tummy tuck, on S. B.'s daughter, who wanted to make a present of cosmetic surgery for her mother. After examining S. B., Respondent recommended against any work on the arms, as the surgical scars would outweigh the benefits of the surgery for S. B. During this initial office visit, Respondent took a history from S. B., who had three children and was employed as a receptionist for a local roofing company. S. B. stated that her general health was good, and she had never had significant complications from any surgery. She reported that her only medical problem was hypertension and that she consequently took clonidine and Lasix. She stated that she had never reacted badly to general or local anesthesia, did not bruise easily, and did not bleed excessively from cuts. The form asked the patient to list intoxicating or mind-altering drugs, and S. B. did not list any. At no time during the July 9 visit did S. B. express an intent to proceed with the surgery, and, in fact, she was undecided at the time and remained so for several months. Respondent next saw S. B. on December 11, 2003, when she presented at his office for a pre-operative examination. Respondent again discussed the surgical procedures. During this visit, S. B.'s blood pressure was 210/112, which was too high for Respondent to perform elective surgery. Instead, he discussed with S. B. the need to control her blood pressure and learned that she had quit taking her blood pressure medication. Respondent told S. B. to see her primary care physician to control the blood pressure. Respondent's notes document S. B.'s blood pressure, the referral, and the purpose of the referral. In anticipation of surgery on December 23, 2003, Respondent prescribed on December 11, 2003, fifteen 500-mg tablets of Duricef, fifteen 10-mg tablets of Lorcet, and fifteen 30-mg tablets of Restoril. Duricef is an antibiotic. An analgesic, Lorcet combines 10 mg of hydrocodone, an opioid, with acetaminophen. Restoril, or temazepam, is a sedative in the benzodiazepine family and is similar to Valium. Respondent typically prescribes these or similar medications, so that his patients can fill them prior to surgery and take them following surgery. On December 11, 2003, Respondent also ordered pre- surgical lab work. The lab report, dated December 12, 2003, states that S. B.'s values were largely normal. However, S. B.'s prothrombin time (PT), which measures clotting time, was very slightly elevated. The normal range for this parameter for this laboratory is 11-13 seconds, and the PT for S. B. was 14.8 seconds. However, the International Normalization Ratio (INR), which normalizes results among labs and tissue samples, was 1.4, which is within the normal range, as was the partial thromboplastin time (PTT), which is another measure of clotting time. S. B.'s red blood cell count was very slightly high (6.13 as compared to a range of 4.2-6.1 units per liter). Also very slightly low were S. B.'s M.C.V. (79.0 as compared to a range of 80.0-99.0 units), M.C.H. (26.3 as compared to a range of 27.0-31.0 units), and M.C.H.C (32.7 as compared to a range of 33.0-37.0 units per liter). Very slightly high was S. B.'s R.D.W. (15.4 as compared to a range of 11.5-15.0 percent). Except for the red blood cell count, the other parameters pertain to precursors of cells. The next day, Respondent added to the pre-operative prescriptions two 5-mg tablets of Mephyton, which is vitamin K. The medical records contain no discussion of why Respondent added vitamin K the day after he had ordered the other pre- operative medications. Most likely, this information would have been contained in Respondent's notes, which are in a handwritten scrawl that is partly illegible. Clearly, though, Respondent's notes fail to disclose the purpose of ordering Respondent to take vitamin K. Respondent testified that he was responding to the PT value, explaining that he gives vitamin K to patients with borderline clotting studies, so that the patients will not experience as much bruising and swelling. More important than the records' failure to contain an explanation for the ordering of vitamin K is their failure to address the high PT value in Respondent's plan of treatment for S. B. Even if only borderline high and more suggestive of problems involving only bruising and swelling, the PT raised a clotting issue, which is of obvious importance given the nature of the contemplated surgery. Respondent's records must address this issue and the impact, if any, on the contemplated surgery. In retrospect, the PT abnormality proved irrelevant. S. B. did not display any clotting problems or excessive bleeding during the surgery. At the hearing, Respondent explained the limitations of a PT value, especially when it is unaccompanied by an abnormal INR, although Respondent obviously thought enough of the PT test to order one for S. B. More cogent is Respondent's explanation at the hearing that the absence of any reported history of bleeding or bruising outweighed any concerns raised by a slightly elevated PT value, but this persuasive analysis is nowhere to be found in the medical records. Petitioner argues alternatively, though, that the slightly elevated PT value should have alerted Respondent to cirrhosis, which is discussed in more detail below. At the pre- operative stage, at least, the history, findings, and complaints did not support a diagnosis of cirrhosis. In his pre-operative physical examination, Respondent found no evidence of jaundice or edema. S. B.'s anemia had resolved. Her history lacked any indication of liver disease, nor did S. B. complain of any symptoms consistent with cirrhosis. These facts, as well as the information supplied by S. B.'s primary care physician, justified Respondent's failure to explore the possibility of liver disease prior to proceeding with surgery. Nor did the circumstances impose a duty on Respondent to include in the medical records a plan of treatment that addressed the possibility of cirrhosis. The facts reasonably known to Respondent did not raise the possibility of cirrhosis, any more than they raised the possibility of heroin use by S. B. It is thus irrelevant to Respondent's documentation duties, although not necessarily to her death approximately 30 hours after the end of the surgery, that S. B. suffered from some degree of cirrhosis and used heroin. On December 31, 2003, S. B.'s primary care physician completed a "Medical Clearance" form, even though Respondent had not requested a medical clearance, but had required only that the physician do what was necessary to get S. B.'s blood pressure under control. On the form, S. B.'s primary care physician noted that S. B.'s past history consisted of hypertension and, in June 2000, anemia. The addition of the date implied that S. B. no longer suffered from anemia--a fact borne out by her elevated red blood cell count. On the form, the primary care physician noted that her blood pressure was 160/98 and pulse was 80, changed one of S. B.'s blood pressure medications, and cleared her for surgery under local and general anesthesia, "once BP < 150/90." Two items on the Medical Clearance form support Respondent's decision not to investigate the possibility of liver disease before performing surgery. First, as noted above, the form indicates that S. B.'s anemia had resolved. It would be reasonable to assume that S. B.'s primary care physician was especially attentive to indicators of anemia or liver disease given this history. Second, the Medical Clearance indicates that S. B.'s primary care physician had ordered a comprehensive metabolic panel, which would include tests of liver function. The absence of any further contact from the primary care physician implies that the comprehensive metabolic panel revealed nothing of importance as to liver function, and the function of the liver is obviously important--not its post- mortem condition. On January 15, 2004, S. B. presented at the Cosmetic Surgery Center for an abdominoplasty with liposuction to the waist area. Respondent's scrawled notes do not disclose why he or S. B. decided not to proceed with the breast augmentation. In the pre-operative evaluation, which is initialed by Respondent, S. B.'s pulse was 95, and her blood pressure was 162/96, with the notation that she was nervous. Her rating on the American Society of Anesthesiologists (ASA) scale is I, meaning that she has no disease. Respondent concedes that her hypertension warranted a II, which means some systemic disease, but not threatening. However, the mis-rating on the ASA scale is irrelevant because it did not impact her treatment or outcome. The pre-operative evaluation contains two other notations of interest. First, Respondent planned for S. B. to remain overnight at the Cosmetic Surgery Center, rather than to discharge her to home on the day of the surgery or transfer her to a hospital. Thus, her remaining at the facility the night of the surgery did not suggest an unusually difficult surgery or recovery. Second, Respondent found S. B. fit for surgery under I.V. sedation in the office, rather than local or general anesthesia. Obviously, the pre-operative evaluation reports a blood pressure in excess of the maximum listed in the medical clearance that Respondent had received from S. B.'s primary care physician. Respondent's medical records fail to address this discrepancy and the broader issue of S. B.'s blood pressure, which was about the same as it was when she visited her primary care physician, but considerably lower than when she last visited Respondent. Respondent could and did reasonably exercise his own medical judgment and proceed with surgery despite a blood pressure in excess of the maximum on the medical clearance, but given this recommendation, S. B.'s extremely elevated blood pressure a month earlier, the challenges of maintaining reasonable blood pressure levels intra- and post- operatively, and S. B.'s hypertensive condition, Respondent was required to document his reasoning for proceeding with surgery despite the relatively high blood pressure. At hearing, Respondent offered a persuasive explanation of why he proceeded to perform the surgery despite a blood pressure reading over 150/90. Attributing the elevated blood pressure (and pulse) to adrenalin-producing anxiety, not hypertension, Respondent decided that he would be able to control S. B.'s blood pressure adequately during surgery with sedatives and blood pressure medication. Considerable evidence indicates that S. B. was a very nervous patient. S. B.'s pulse was also quite rapid on both visits. As was the case with the PT value, it is easier to credit Respondent's reasoning given hindsight, as he successfully controlled S. B.'s blood pressure during surgery. During surgery, Respondent's nurse practitioner, Michelle Huff, monitored heart function by an EKG, blood oxygenation and pulse by a disposable pulse oximeter, blood pressure, and respiration. During the surgery, Respondent was also assisted by Tiffany Archilla, a certified surgical technologist. At Respondent's direction and under his supervision, Nurse Hoff, administered the following drugs immediately before and during surgery: Diprivan, which is an anesthetic whose specific effect depends on rate of administration; Versed, which is a sedative; Robinul, which controls nausea; Ancef, which is an antibiotic; fentanyl, which is an analgesic and anesthetic; and labetalol, which controls blood pressure. Nurse Huff also administered oxygen and nitrous oxide, which is an anesthetic. Nurse Huff had been working at the Cosmetic Surgery Center for only two months at the time of S. B.'s surgery. Nurse Huff is not a CRNA, but is an advanced registered nurse practitioner and has been a registered nurse for 14 years. At the time of the hearing, she had been employed for three years at the Cosmetic Surgery Center, where she also had completed an internship. She estimates that she has participated in over 1000 surgical procedures involving Level II sedation. At 8:40 a.m., Nurse Huff administered 2.5 mg of Versed, 0.2 mg of Robinul, and 1.0 g of Ancef. At 8:45 a.m., Nurse Huff started the oxygen, nitrous oxide, and Diprivan drip. The oxygen was in a two-liter bottle, and the nitrous oxide was in a four-liter bottle. The Diprivan was 500 mg in a 500 cc solution. During the surgery, Nurse Huff administered all of this Diprivan, as well as all of another 200 mg of Diprivan in a 250 cc solution, given S. B.'s resistance to sedation. In most cases, and probably in this one, Respondent uses a microchamber, which releases microdrips at the rate of 60 drops per minute. Respondent does not administer Diprivan by means of an infusion pump, which would offer more precise control of the rate of infusion. The records do not indicate the rate of administration of the Diprivan. However, Respondent rarely finds it necessary to discontinue Diprivan during surgery, and its clinical effect wears off after only about three minutes following its discontinuation, so the patient arouses quickly after Diprivan is stopped. Thus, the failure to record the rate of administration of the Diprivan is immaterial. At 8:45 a.m., Nurse Huff also administered 100 mg of fentanyl, which was followed by 50 mg doses at 8:50 a.m., 8:55 a.m., 9:05 a.m., 9:35 a.m., 9:45 a.m., 10:05 a.m., and 10:10 a.m. S. B. thus received a total of 450 mg of fentanyl. The surgery commenced at 9:30 a.m. At the start of surgery, Respondent administered subcutaneously at the surgical site 150 cc of one percent lidocaine, which is a local anesthetic, with epinephrine at 1/200,000. The epinephrine prevents the body from quickly absorbing the lidocaine. S. B.'s blood pressure had varied between 8:40 a.m. and 9:30 a.m. It started at 164/97, but was 135/85 15 minutes later. Her blood pressure remained at 145/85 from 9:00 a.m. to 9:10 a.m. At the time of surgery, S. B.'s blood pressure was 162/88. In response to the start of surgery and reflective of S. B.'s level of anxiety, her blood pressure surged to 180/95 at 9:45 a.m., and Respondent directed Nurse Huff to administer 2.5 mg of labetalol at this time. S. B.'s blood pressure reached 190/80 at 10:00 a.m., five minutes after Nurse Huff had administered another 2.5 mg of labetalol. By 10:10 a.m., S. B.'s blood pressure was down to 125/75, where it remained for the remainder of the surgery. S. B.'s other vitals remained good during the surgery. Oxygenation saturation remained over 96 percent, mostly 97 and 98 percent. Respiration remained around 18. Pulse ran in proportion to blood pressure, but settled within the range of 80-90 once S. B.'s blood pressure stabilized at 10:10 a.m. Blood loss was minimal during the surgery. Typically, a patient may lose 200-300 cc of blood, but S. B. lost only 150 cc. Proceeding conservatively, Respondent did not try to tighten the muscle wall, as he found, once he had made the incisions, that S. B. did not require this procedure. The liposuction removed 200 cc, including 150 cc of fat. Anesthesia ended at 11:05 a.m., and surgery ended at 11:10 a.m. During the surgery, S. B. had received 2000 cc of fluids. At all times, S. B. remained active and alert. Evidencing S. B.'s level of alertness during surgery was her high oxygen levels at all times during surgery and the necessity of additional Diprivan. At 11:20 a.m., S. B. was transported by stretcher from the operating room to the recovery room. At this time, her oxygen level was 98 percent, her blood pressure was 179/97, her pulse was 96, and her respiration was 16. At 11:30 a.m., S. B. received 2.5 mg of labetalol. At 11:35 a.m., S. B. was complaining of anxiety, so she received 2.5 mg of Valium. At 11:40 a.m., a nurse emptied her Foley catheter of 1600 cc of clear yellow urine. At this time, S. B.'s blood pressure was 184/105, her pulse was 95, her respiration was 16, and her oxygen level was 96 percent. She received another 2.5 mg of labetalol. At 11:45 a.m., S. B. received another 2.5 mg of Valium. At 12:15 p.m., S. B.'s blood pressure was 164/92, and she received clonidine 0.1 mg to reduce her blood pressure. Fifteen minutes later, S. B.'s blood pressure dropped to 143/88. She fell asleep at 1:00 p.m., but awoke an hour later, complaining of pain. She then received 75 mg of Demerol with 6.25 mg of Phenergan, which controls nausea. At 2:30 p.m., S. B. complained again of pain. Her blood pressure had risen to 189/78, so she received another clonidine 0.1 mg. Fifteen minutes later, a nurse emptied S. B.'s Foley catheter of 1400 cc of clear urine. S. B.'s blood pressure was 170/100, and the nurse notified Respondent of this reading. The nurse gave S. B. 10 mg of Procardia, which reduces high blood pressure. At 3:00 p.m., S. B. received 2.5 mg of labetalol and 2.5 mg of Versed. Fifteen minutes later, S. B. was transferred by stretcher to the overnight room with a blood pressure of 141/60, pulse of 96, and respiration of 16. By 3:45 p.m., S. B.'s blood pressure was 125/59, and she was asleep. Thirty minutes later, S. B. was watching television, and her blood pressure was 141/78. After complaining of pain, S. B. received 100 mg of Demerol with 12.5 mg of Phenergan at 4:50 p.m. At 5:10 p.m., S. B.'s blood pressure rose to 163/94, and her pulse was 108. She received another 10 mg of Procardia at this time. At 6:00 p.m., S. B.'s blood pressure was down to 142/88. Two hours later, after she complained of insomnia, S. B. received 30 mg of Restoril. At 9:15 p.m., S. B. complained of abdominal pain. She received 100 mg of Demerol and 25 mg of Phenergan. At 11:30 p.m., S. B. received 30 mg of Restoril for insomnia and 10 mg of Lorcet for pain. At 1:20 a.m. on January 16, S. B. was sleepy. Two hours later, her blood pressure was 148/70. At 5:30 a.m., after an uneventful night, S. B. complained of abdominal pain and received another 10 mg of Lorcet. At 7:00 a.m., her intravenous line was discontinued. Alert and oriented, S. B. walked in the hall and received another clonidine 0.1 mg. A nurse emptied her Foley catheter of 400 cc of urine and removed the Foley catheter. At discharge at 8:00 a.m., Respondent examined the wound and found no evidence of bleeding, as he changed the dressing. At this time, S. B.'s blood pressure was 147/70 and pulse was 108. S. B. was transported by wheelchair to her daughter's car. S. B. and her daughter arrived at S. B.'s home at about 9:00 a.m. on January 16, 2004. After spending the morning with her mother, the daughter left the home and returned at 1:00 p.m. Having forgotten the house key, the daughter knocked on the door, and S. B. had to crawl to the door due to her lack of strength. The daughter assisted her mother to bed. Mid- afternoon, the daughter left her mother to run some errands. When the daughter returned home shortly before 6:00 p.m., she found her mother unresponsive and curled into a fetal position on the floor with blood present on the bed sheets and nightshirt that she was wearing. The daughter immediately called 911 and requested an ambulance. The emergency management technicians (EMTs) arrived at S. B.'s home at 6:23 p.m. and found her as her daughter had found her. S. B. was in full cardiac arrest. The EMTs found S. B. cold to the touch with fixed and dilated pupils. They found a "small amount" of blood oozing from the staples in the lower stomach. The two surgical drains in the upper stomach contained no discharge. Blood had soaked the bandage and run down both legs to thigh level. The EMTs estimated blood loss at about 500 cc. The EMTs also found the Restoril and Lorcet in the doses that Respondent had prescribed pre-operatively. The EMTs attempted unsuccessfully to resuscitate S. B. and transported her to the hospital where she was pronounced dead on arrival at 6:35 p.m. The medical examiner conducted an autopsy on January 17, 2004, at which time blood and urine samples were taken for toxicological analysis. The toxicology report notes that a gas chromatography/mass spectrometry procedure revealed the presence of 6-MAM, which is a metabolite of heroin and demonstrates conclusively that S. B. consumed heroin or, much less likely, 6-MAM; morphine, which is another indicator of heroin, at a concentration of 0.22mg/L; methadone at a concentration of less than 0.05 mg/L; meperidine, which is Demerol (a narcotic analgesic) at a near-toxic concentration of 0.98 mg/L; diazepam, which is Valium, at a concentration of less than 0.05 mg/L; nordiazepam, which is a metabolite of Valium, at a concentration of less than 0.05 mg/L; temazepam, which is, as noted above, Restoril or another metabolite of diazepam, at a concentration of 0.29 mg/L; and hydrocodone, which is one of the two ingredients, as noted above, of Lorcet, at a concentration of 0.05 mg/L. A drug's half-life is the amount of time for its potency to be reduced by half. Three to four half-lives are required for the complete elimination of a drug. Because various conditions can affect the half-lives of drugs, such as liver disease as to drugs eliminated substantially through metabolism by the liver, half-lives are stated as average ranges. Relevant half-lives are: Demerol--2-24 hours; diazepam--21-37 hours; hydrocodone--3.4-8.8 hours; and temazepam--3-13 hours. Diprivan and fentanyl have very short half-lives and were not detected by the toxicologist. The half- life of 6-MAM is also very short, about 6-25 minutes, leading the toxicologist who performed the report for the medical examiner to testify that S. B. had consumed heroin not more than two hours before her death. The same toxicologist testified that the detected concentration of Demerol was six times the therapeutic level. (This testimony is credited over the testimony of the Deputy Chief Medical Examiner that the concentration of 0.98 mg/L is only twice the therapeutic level.) Given a half-life of 2-24 hours, all that can be said with certainty is that S. B. suffered even greater concentrations of Demerol--possibly much greater--prior to the near-toxic concentration found by the toxicologist. Undoubtedly, the heroin and methadone that S. B. consumed were not prescribed by Respondent. Undoubtedly, S. B. had access to Demerol that Respondent had not administered. Respondent could not have reasonably have anticipated, based on the circumstances, that S. B. would consume heroin, methadone, and toxic or near-toxic amounts of Demerol, in addition to her prescribed medications, within 12 hours of her release from the Cosmetic Surgery Center. Just as an illegal drug user has the right to treatment in accordance with the applicable standard of care, so a physician has a right to expect behavior on the part of his patient that is at least consistent with the instinct of self-preservation. The autopsy determined that S. B. died of a combined drug overdose of heroin, temazepam, Valium, methadone, Demerol, and hydrocodone. Contributing causes of death were hypertension, abdominal wall hemorrhage, and cirrhosis. As to the hypertension, the autopsy report states that S. B. suffered from mild arteriosclerotic cardiovascular disease. As to the abdominal wall hemorrhage, the autopsy report states that S. B. was in status--post-tummy tuck and liposuction. As to the cirrhosis, the autopsy report states that S. B. suffered from severe fatty metamorphosis of the liver. The autopsy report concludes that the manner of death was an accident. Of the drugs that combined to kill S. B., Respondent clearly did not administer or prescribe the heroin or methadone. Although Respondent administered Demerol at the dosages of 75 mg at 2:00 p.m. 100 mg at 4:50 p.m., and 100 mg at 9:15 p.m., all on January 15, the near-toxic Demerol found in S. B. at the time of her death was not due to these doses, but due, at least in large part, to Demerol that S. B. obtained from other sources. The hydrocodone and temazepam were probably derived, at least in part, from the Lorcet and Restoril that Respondent prescribed for post-operative use. Unfortunately, the record does not reveal how many pills of each that the EMTs found at the S. B.'s home, so it is impossible even to infer how much of each medication that S. B. took while at home during the afternoon of January 16 immediately preceding her death. Not much hydrocodone was found in S. B., and the 10 mg of Lorcet given at 11:30 p.m. on January 15 and 10 mg of Lorcet given at 5:30 a.m. on January 16 would have been nearly eliminated by the time of S. B.'s death, given the short half-life of hydrocodone. Considerably more temazepam was found in S. B., but the 30 mg of Restoril given at 8:00 p.m. and 30 mg of Restoril given at 11:30 p.m. would have been nearly eliminated by the time of S. B.'s death, given the short half-life of temazepam. Clearly, in the two or three hours before she died, S. B. took heroin, methadone, and Demerol. Clearly, the fentanyl that she had last received at 10:10 a.m. on the prior day and the Diprivan that she had last received at 11:05 a.m. on the prior day had long cleared her system before she took the heroin, methadone, and Demerol. S. B. accidentally took her own life by taking these three drugs. The record does not suggest that hemorrhaging from the surgical site was due to some failure on Respondent's part. Instead, it appears more likely that falling from the bed or possibly convulsing from the drug overdose, S. B. may have reopened the incision site. The record does not suggest that cirrhosis materially extended the half-lives of any medications that Respondent administered. S. B. efficiently eliminated the Valium that Respondent administered. The record does not explain why she would not as efficiently eliminate other drugs metabolized primarily by the liver. The record does not suggest that Respondent's management of S. B.'s hypertension intra- and post-operatively had any bearing on her demise. Her blood pressure stabilized late in the afternoon of January 15, and nothing in the record suggests that anything that transpired on that day concerning S. B.'s hypertension caused an acute crisis that resulted in her death. As to Count I, Respondent did not depart from the applicable standard of care. S. B. never fell below Level II sedation; she was always responsive to pain and attempts to communicate. S. B. proved difficult to sedate even to Level II. On these facts, it is impossible to find even that it was reasonably likely, at the outset of the procedure, that S. B. would reach Level III sedation. Additionally, as to Count I, Respondent competently managed S. B.'s hypertension intra- and post-operatively. Based on the circumstances, Respondent correctly determined that the slight elevation of PT would not interfere with clotting or endanger the patient's safety and correctly determined that the other five slight abnormalities in the lab report were immaterial to patient safety in the contemplated surgical procedure. Respondent was thus not required to obtain additional tests or to obtain a consultation for the slight PT abnormality. Based on the physical examination and lab results, including those ordered by the primary care physician, insufficient evidence of liver abnormality existed to preclude the administration of the acetaminophen contained in Lorcet. Further, the standard of care does not preclude the prescription of acetaminophen to all patients with any kind of liver disease. As to Count II, Respondent's medical records fail to document adequately why he proceeded to operate despite S. B.'s failure, pre-operatively, to reach a blood pressure of less than 150/90, why he administered vitamin K pre-operatively, and, most importantly, how he had assimilated the PT abnormality in his treatment plan for S. B. As noted above, at hearing, Respondent amply supplied all of this information--the problem is that he never bothered to do so in the medical records. Although these deficiencies in medical records did not contribute in any way to S. B.'s death, they are material failures to justify the course of treatment. In contrast to the detailed records of Nurse Huff intra-operatively and the post-operative records prepared by nurses, Respondent's notes, and thus the records themselves, do not approach the minimum level of detail necessary to justify the course of treatment in this case. As to Count III, Respondent did not administer or cause to be administered excessive or inappropriate quantities of Diprivan. As to Count IV, Respondent did not improperly delegate professional duties, with respect to the administration of Diprivan, to a registered nurse who was not a CRNA. At all times, Respondent adequately supervised and monitored the administration of this short-acting sedative. The record does not support Respondent's claim of prejudice resulting from any delay in the prosecution of this case. Any claim of prejudice due to delay is undermined by Respondent's failure to demand an immediate hearing due to the imposition of an emergency restriction on his license.
Recommendation It is RECOMMENDED that the Board of Medicine enter a Final Order dismissing Counts I, III, and IV of the Administrative Complaint, finding Respondent guilty of a single violation of Section 458.331(1)(m), Florida Statutes, suspending his license for 30 days, placing his license on probation for two years, requiring him to complete successfully continuing medical education on medical records, and imposing an administrative fine of $10,000. DONE AND ENTERED this 25th day of August, 2006, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 25th day of August, 2006. COPIES FURNISHED: Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin AO2 Tallahassee, Florida 32399-1701 John E. Terrel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Lewis W. Harper Brew and Harper, PL 6817 Southpoint Parkway, Suite 1804 Jacksonville, Florida 32216 George Kellen Brew Brew and Harper, P.L. 6817 Southpoint Parkway, Suite 1804 Jacksonville, Florida 32216 Patricia Nelson Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399
The Issue Whether Respondent, a physician, committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a licensed physician in the State of Florida (license number ME 0031217) who practiced in the specialty of orthopedic surgery. Respondent was not board certified. At all times pertinent to this proceeding, Respondent had hospital privileges at Palm Springs General Hospital (Palm Springs) in Hialeah, Florida. On Saturday, February 26, 1994, T. P., a 29 year-old male, suffered a badly fractured leg while playing soccer. T. P. was taken to the emergency room at Palm Springs where the emergency room physician partially reduced the angulation of the fracture and placed the patient's leg in a splint cast. The patient was thereafter admitted to Palm Springs on February 26, 1994, under the care of Dr. Stephen Ticktin, an orthopedic surgeon. X-rays revealed that the patient had sustained a jagged fracture of both the tibia and the fibula. The fractures were similar to sharp-edged spears. There was a laceration and significant bruising at the fracture sight. Dr. Ticktin examined the patient's leg on February 26, 1994, but did not reduce the fracture (set the leg) on that date. Instead, Dr. Ticktin kept the leg in the splint cast to immobilize it, and planned to perform surgery on the following Monday morning. The patient and his girlfriend told Dr. Ticktin that they did not want to have surgery at Palm Springs. They wanted the patient transferred to a Broward County hospital so that he could be closer to his residence. On Monday, February 28, 1994, Dr. Ticktin did not perform surgery on T. P. On Monday, February 28, 1994, T. P. changed his mind and agreed to have surgery at Palm Springs. (Dr. Ticktin's notes reflect that the patient changed his mind after talking to a representative of his insurance company.) Surgery was planned for Wednesday, March 2, 1994. On that Wednesday, the patient ran a fever. Because of that fever, the anesthesiologist cancelled the surgery that had been scheduled for March 2, 1994. The patient terminated the services of Dr. Ticktin on March 2, 1994, and refused to be treated by him. Late in the day of Wednesday, March 2, 1994, the hospital administrator asked Respondent to assume the care of the patient. Respondent first saw the patient between 10:00 p.m. and 11:00 p.m. on Wednesday, March 2, 1994. At the time Respondent first saw him, T. P. had been immobile with the cast that Dr. Ticktin had placed on his leg on February 26, 1994. His fractured leg had not been set. The patient was very upset. On the evening of March 2, 1994, Respondent determined that the fracture would have to be reduced with the patient being under general anesthesia. Respondent observed that the leg did not appear to be excessively swollen and that the circulation in the leg was appropriate. Respondent noted that there was numbness in the foot, which indicated that a peritoneal nerve had been injured. Respondent had no reason to believe that that the patient was suffering from a compartment syndrome on March 2, 1994. Compartment syndrome is a relatively rare occurrence that results in restricted or total loss of blood flow due to swelling within a compartment, which is an enclosed facia. The tibia and fibula are encased in a compartment from the knee to the ankle. Swelling within that compartment produces pressure on the arteries and smaller blood vessels that can restrict or completely block the flow of blood below the area of the swelling. It typically takes several hours or days for a compartment syndrome to manifest itself. On the morning of March 3, 1994, Respondent aligned T. P.'s leg, thereby reducing the fractures, and stabilized it by inserting pins in the leg and applying an external fixater attached above and below the fracture sites. At approximately 10:00 a.m. on March 3, 1994, the patient was moved from the operating room to the recovery room. At the time the patient left the operating room, there were no signs that anything untoward had happened. The recovery room records reflect that at approximately 10:05 a.m., there was no pulse below the fracture site. Respondent observed in the recovery room that the leg below the fracture was ischemic (receiving little or no oxygen). Respondent testified, credibly, that he considered whether the patient was suffering a compartment syndrome, but that he concluded that he probably was not because of the rapid onset of the problem following the reduction and the placing of the fixater, and because the leg remained supple and had not changed from the earlier examination. Respondent immediately ordered an angiogram, the appropriate diagnostic examination, and contacted Dr. Marcos Zequeira, a vascular surgeon on the staff of Palm Springs. Both Respondent and Dr. Zequeira were of the opinion that the patient had suffered a vascular accident and neither one formed the opinion that they were dealing with a compartment syndrome. Dr. Zequeira and Respondent agreed that an angiogram should be performed to diagnose the cause of the loss of blood flow in the leg. Dr. Zequeira advised Respondent that there were no facilities to perform an angiogram at Palm Springs. 1 Dr. Zequeira and Respondent decided to transfer the patient to Dr. Felix Freshwater, a micro-surgeon at Deering Hospital, to perform an angiogram and perform the procedure that would be necessary to resolve the problem. As soon as could be done, Dr. Zequeira contacted Dr. Freshwater, who agreed to accept the patient. Respondent thereafter immediately made the arrangements for an ambulance, which transported the patient to Deering Hospital. Respondent followed the ambulance in his own car and remained with the patient until after Dr. Freshwater performed surgery on the patient. The patient arrived at Deering Hospital at 2:00 p.m. and the angiogram was completed at 3:40 p.m. Anesthesia was started on the patient at 4:37 p.m. and surgery began at 5:30 p.m. The angiogram performed at Deering Hospital revealed that the patient had suffered a type of a compartment syndrome. It was not a typical compartment syndrome and it could not have been accurately diagnosed without the angiogram. Dr. Freshwater testified that his and Dr. Zequeira's presumptive diagnosis prior to the angiogram was that of a direct arterial injury as opposed to a compartment syndrome. Appropriate surgical intervention required an angiogram. The surgical procedure performed by Dr. Freshwater (fibulectomy-fasciotomy) restored the circulation in the patient's leg. Loss of blood flow presents a serious threat to a patient's leg and can result of the loss of the limb. The longer the blood flow is cut off, the more damage to the leg occurs. Damage can begin to occur in as little as two hours after the flow is cut off. Damage to the leg is certain if blood flow is cut off for twelve hours or longer. Here, the patient's circulation in his leg had been significantly restricted or blocked from approximately 10:05 a.m. until the surgical intervention by Dr. Freshwater. Petitioner did not establish that the patient's subsequent problems with his leg were attributable to that fact.2 Petitioner's experts opined that when he first detected that the blood flow in the leg had been compromised, Respondent should have immediately removed the fixater from the patient and, if necessary, displaced the fracture, thereby restoring the flow of blood. These witnesses, both of whom are highly qualified in their fields of practice, testified that Respondent's failure to take prompt action to restore the flow of blood was below the acceptable standard of care. Dr. Freshwater and Dr. Shall were of the opinion that Respondent did not practice below the standard of care. All experts agree that it was appropriate for Respondent to consult with Dr. Zequeira, a vascular surgeon, and to order an angiogram. All experts agree that the restricted or blocked blood flow presented a danger to the patient's leg, and all agreed that the leg would suffer more damage the longer it took to restore appropriate blood flow. Dr. Freshwater and Dr. Shall were of the opinion that removing the fixater and displacing the fractures as suggested by Petitioner's experts without an angiogram would have presented an unwarranted risk to the patient because an appropriate diagnosis had not been made (and could not have been made without an angiogram) and because moving these spear-like fractures could easily have resulted in more damage to the leg, such as cutting or puncturing an artery. The more persuasive evidence established that it was appropriate for the Respondent to transfer the patient to the care of Dr. Freshwater because Dr. Freshwater was imminently qualified to perform the delicate surgery that was thought necessary to restore the blood flow and because Deering Hospital had the facilities to perform the requisite angiogram. All of the treating physicians were aware that time was of the essence and they moved as expeditiously as circumstances and prudence permitted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint against the Respondent be dismissed. DONE AND ENTERED this 11th day of February, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 11th day of February, 1999.
The Issue The issues in this case are whether Respondent violated Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes (2000),1 and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state department charged with regulating the practice of medicine pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes (2006). At all times material to this proceeding, Dr. Figueroa was a licensed physician within the State of Florida, having been issued license number ME 60819. Dr. Figueroa is board- certified in Family Practice. At all times material to this proceeding, Dr. Figueroa was the supervisor and employer of mid-level provider Carl Sellers, P.A. (Mr. Sellers). G.C., a 33-year-old male, first presented to Mr. Sellers as a new patient on November 14, 2000. G.C. complained of a two-month history of coughing, low-grade fever, fatigue, and heavy breathing. G.C.'s temperature was 98.4, his weight was 181 pounds, and his heart rate was 68 beats per minute. Mr. Sellers conducted an examination of G.C. and noted that G.C. was having difficulty taking a deep breath, shortness of breath on inspiration that was better if standing upright, severe fatigue, and fits of couching where he nearly vomited. Mr. Sellers also noted that G.C. had mild lymph adenopathy. Mr. Sellers' diagnosed G.C. with a persistent upper respiratory infection. He prescribed Zithromax and Guaifed TR and ordered a chest X-ray and blood testing, including a complete blood count (CBC) with differential, comprehensive metabolic profile (CMP), and erythrocyte sedimentation rate (ESR). G.C. was instructed to return in a week or sooner if he worsened. Dr. Figueroa's normal operating practice was to review Mr. Sellers' files of the previous day on the following morning. Dr. Figueroa reviewed G.C.'s medical record and concurred with Mr. Sellers' diagnosis. Laboratory results from the blood testing arrived in the office of Dr. Figueroa on November 20, 2000. G.C.'s blood testing results revealed abnormal liver function, anemia, borderline protein, and an abnormal sedimentation rate. The results of the blood tests did not warrant immediate follow-up with G.C. Mr. Sellers reviewed the laboratory report of the blood tests and indicated that he would discuss the results with G.C. on his next visit. G.C. was scheduled for a return visit on November 21, 2000, but called Dr. Figueroa's office and rescheduled his appointment for November 22, 2000. G.C. failed to keep his scheduled appointment. On November 22, 2000, Mr. Sellers reviewed the Radiological Report for G.C. The report stated: The lungs are clear of infiltrates. There is mild blunting of the costophrenic sulci probably representative of small effusions. The heart size is moderately enlarged. No pulmonary edema nor widening of the superior mediastinum detected. The impression of the radiologist was "moderate cardiomegaly with probably small pleural effusions." The Department's expert, Dr. Rafool, testified that the Radiological Report was an indication that G.C.'s heart was failing, which was inconsistent with the initial diagnosis of upper respiratory infection. Dr. Figueroa and his expert, Dr. Harold, testified that radiologists often "over read" chest X-rays; therefore, the Radiological Report did not warrant emergent action by Dr. Figueroa. Dr. Rafool countered the common over-read argument by testifying that regular radiologists do not equivocate because it causes more work for the ordering physician. The language of the radiologist is clearly intended to alert Dr. Figueroa to the presence of unusual conditions observed in G.C.'s chest X-ray that were inconsistent with an upper respiratory infection. Dr. Rafool's testimony is more credible concerning the significance of the Radiological Report and its implications on the diagnosis of G.C. Dr. Rafool testified that the Radiological Report indicated that G.C.'s heart was failing, which constitutes a "medical emergency" that required urgent notification of the patient. Dr. Figueroa and Dr. Harold conceded that the report indicated conditions that warranted "timely" follow-up, but not immediate intervention or contact with the patient. The Radiological Report revealed a "moderate" cardiomegaly that was an indication of cardiomyopathy, a heart condition that is more often fatal if not corrected by treatment that may include a heart transplant. Since early intervention is likely to lead to an opportunity for a favorable outcome, the testimony of Dr. Rafool is more credible regarding the need for notification of the patient. The record does not indicate any affirmative effort by Dr. Figueroa, his staff, or by Mr. Sellers to contact G.C. between November 22 and November 27, 2000, which was the next time that G.C. presented to Dr. Figueroa's office. On November 27, 2000, G.C. was complaining of worsening conditions since November 23 including swollen legs, inability to sleep at night, and coughing with shortness of breath mainly at bedtime. G.C.'s temperature was 97.2, his weight was 188 pounds, and his heart rate was 114 beats per minute. Mr. Sellers conducted an examination of G.C. and noted definite lid lag with mild exophthalmia, crackles in the lungs with no wheeze, moderate jugular vein distention, orthopnea, grade +2 pitting edema, and no goiter. Mr. Sellers ordered a STAT EKG on G.C. The EKG indicated "sinus tachycardia with occasional ventricular premature complexes and possible left atrial enlargement." Mr. Sellers documented that G.C. might be suffering from left ventricular hypertrophy. Mr. Sellers' primary diagnosis of G.C. was hyperthyroid crisis (storm), his secondary diagnosis was mild congestive heart failure secondary to hyperthyroid crisis caused by high output failure, his third diagnosis was IDA, the fourth diagnosis was elevated liver function tests and bilirubin, and the fifth diagnosis was insomnia. Mr. Sellers mistakenly diagnosed G.C. with a hyperthyroid crisis. Mr. Sellers consulted with Dr. Figueroa, who also examined G.C. Dr. Figueroa concurred with the assessment, diagnosis, and treatment plan of Mr. Sellers, including the diagnosis of hyperthyroid crisis. He indicated on the EKG strip that he agreed with the findings of G.C.'s EKG. A patient in a hyperthyroid crisis requires immediate hospitalization. Dr. Figueroa did not hospitalize G.C. Mr. Sellers prescribed 40 mg of Lasix, daily; 40 mg of Inderal, twice daily; and 50 mg of propylthiouracil, three times daily. The propylthiouracil prescribed was an insufficient dose based on the diagnosis of hyperthyroid crisis. Dr. Harold testified that G.C. did not present clinical signs of pulmonary edema during Mr. Sellers' examination on November 27, 2000, based on a lack of acute distress, moist rales and rhonchi throughout the lung fields, and respiratory distress. Dr. Rafool opined that G.C. did present clinical signs of pulmonary edema based on the crackles in the lungs, neck vein distension, pitting edema, elevated heart rate, and weight gain. The Department has failed to establish by clear and convincing evidence that pulmonary edema was ever clinically apparent to Dr. Figueroa or Mr. Sellers. In fact, hours after G.C. was examined by Dr. Figueroa and Mr. Sellers, the emergency room physicians did not diagnose G.C. with pulmonary edema. Inderal is contraindicated in the presence of pulmonary edema. Since pulmonary edema was not clinically apparent, Inderal was appropriately prescribed. Mr. Sellers' diagnosis of mild congestive heart failure was incorrect. Based on the symptoms exhibited by G.C. of neck vein distension, weight gain, orthopnea, and grade +2 pitting edema, it should have been apparent that G.C. had severe heart failure. G.C. presented to the Bayfront Medical Center Hospital Emergency Room at 10:03 p.m. on November 27, 2000. G.C. complained of abdominal pain and swelling, nausea and vomiting, and difficulty breathing. Examination of G.C. by emergency room personnel revealed the presence of bibasilar rales, but good breath sounds. Hospital chest X-ray revealed cardiomegaly, no infiltrates. At 1:33 a.m. on November 28, 2000, G.C. went into cardiac arrest. G.C. was pronounced dead at 3:04 a.m., November 28, 2000. An autopsy performed on G.C. revealed dilated cardiomyopathy, bi-ventricular dilation, pulmonary edema, and congested liver. The immediate cause of death was listed as idiopathic dilated cardiomyopathy. The autopsy report indicated that G.C. also had pulmonary edema; however, the pulmonary edema could have resulted from the large amounts of fluids that were being administered to G.C. by hospital staff during the last few hours of G.C.'s life. Dr. Figueroa was notified of G.C.'s demise on November 28, 2000, and he immediately sent his medical records on G.C. to his legal counsel without making any further notations on the records.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Figueroa violated Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes; suspending his license to practice medicine until he completes the Florida C.A.R.E.S. program or a comparable physician skills assessment program to assess his clinical skills; requiring compliance with the program's recommendations; placing him on two years' probation with direct supervision to be set by the Board of Medicine; and imposing an administrative fine of $10,000. DONE AND ENTERED this 13th day of December, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th of December, 2006.
Findings Of Fact Respondent is and has been at all times material hereto a licensed physician in the state of Florida, having been issued license number ME 0019670. Respondent is a board-certified obstetrician and gynecologist. On March 20, 1989, at approximately 1:04 a.m., Patient #1 (Derrick Prince) was presented to the emergency room at Weems Memorial Hospital in Apalachicola, Florida. Prince was a twenty-year-old male suffering from a stab wound to his left thigh that was inflicted by a butcher knife. Prince was actively bleeding and had lost a large amount of blood, as evidenced by the condition of his clothing, the amount of blood on the walls and floor of the hospital, and blood on his companions. Prince was placed on a table in the trauma room. When his blood-soaked pants were removed, blood spurted from the wound on his left thigh to a height of one to two and one-half inches. The emergency room R.N., Ms. Page, controlled the bleeding by direct pressure, first with her hand and then with a towel. Prince was semiconscious, muttering, "I can't breathe," and was randomly combative. Emergency room personnel had to forcibly restrain him on the table. Respondent, working as the emergency room physician, was summoned to the trauma room by the nurse. Hospital personnel attempted to establish Prince's blood pressure and pulse. Ms. Simpson, the L.P.N., could detect no blood pressure or pulse on Prince. Ms. Page, the R.N., could detect no blood pressure or pulse although she checked radial, cubital, and popliteal areas. Mrs. Estes, a paramedic who came in to help, could detect no pulse. Respondent was advised repeatedly that no blood pressure or pulse could be detected. Respondent instructed Ms. Simon to call respiratory and laboratory personnel and the Sheriff's Department, which she did. The laboratory director, Tracy Pierce, was called at his home in St. Joe Beach. When pressure was removed from the wound area, there was little blood on the towel and the wound was not bleeding. Respondent commented to the nurse that she did a good job stopping the bleeding. The nurse and paramedics attempted to begin intravenous infusion but were unable to establish any IV lines because all veins were concave (collapsed). The nurse and paramedic interpreted this peripheral vascular collapse as meaning there was no blood volume to keep the veins open. Respondent was advised that no IV could be started because the veins were concave. Respondent had ordered a suture tray. He explored the wound with his finger and commented that the wound went all the way to the bone. Respondent commented that the boy would be all right, that he wasn't hurt that bad. Respondent proceeded to treat Prince by suturing the wound in three layers. He stated he tied off some minor arterial branches during this suturing. After suturing the wound, Respondent again commented that the boy would be all right because he wasn't hurt that bad. After suturing the wound and noting no jugular access, Respondent began a cutdown in order to establish an intravenous line. Ms. Estes, the paramedic, suggested using MAST trousers to help venous pressure, and Respondent agreed. MAST trousers also can act as a tourniquet to control bleeding. The pants were applied and Prince's legs were elevated in an effort to establish a positive venous pressure. At 1:30 a.m., while Respondent was setting up for a cutdown, Prince had a seizure and respiratory arrest. He was intubated by Respondent. He vomited, was suctioned, and breathed by AMBU bag. Respondent then inquired, for the first time, about the availability of blood. He was told there was none in the hospital. Sufficient blood was available and could have been obtained from Gulf Pines South Hospital in St. Joe within 30 minutes had a request been made for Mr. Pierce to bring it with him. Mr. Pierce arrived during the cutdown procedure. Mr. Pierce was the laboratory director for both hospitals. An intravenous fluid line was finally established via the cutdown and some fluid begun. The Life-Flight helicopter was ordered at approximately 1:40 a.m. At approximately 1:55 a.m. Prince suffered a cardiac arrest. When Life-Flight arrived at 2:40 a.m., it was impossible to transport Prince in his moribund condition. Resuscitative efforts were employed until approximately 3:00 a.m., when Respondent pronounced Prince dead. An autopsy conducted by Dr. Thomas Wood, the Medical Examiner, on March 21, 1989, revealed that the stab wound to the left thigh was located six inches above the knee, was seven inches deep, passed by the bone, and completely severed both the femoral artery and vein. The autopsy also revealed 3 layers of sutures: the first closing the skin and two other layers within the subcutaneous fatty tissue, not more than three-fourths of an inch below the surface. There was no evidence of any arterial or venous repair. The cause of death of Derrick Prince was exsanguination from the severed femoral vessels. After an investigation was initiated, Respondent was interviewed by Investigator Reese. Respondent stated that peripheral pulses were obtained and the patient's pulse rate was 120 from admission until the time of his respiratory arrest. Respondent stated to Investigator Reese that two IVs were started but that the patient pulled them out. Statements of Ms. Page and Ms. Estes written immediately after the incident indicate that no IVs were started, not because the patient pulled them out, but because all veins were collapsed. Respondent stated to Investigator Reese that he had to leave the patient after suturing the wound to examine a family member across the hall. At no time did Respondent leave the emergency room. Respondent stated to Investigator Reese that there was no indication that the femoral vessels had been cut, as he had checked the wound and that is not the direction the femoral artery runs. Respondent believed the wound was not life-threatening, that after the bleeding was stopped and the wound sutured the patient was in pretty good shape and was going to be fine. Respondent was not aware the femoral vessels had been severed until informed at the circuit court hearing of June 6, 1989. Respondent reported in his medical record the patient "became shocky" at approximately 1:30 a.m., after the suturing. The massive blood loss, disorientation and combativeness, peripheral vascular collapse, and lack of vital signs all indicate Prince was in shock when admitted and Respondent did not recognize this fact. Respondent instead believed Prince to be a combative drunk and his course of treatment indicates this perception. The emergency room physician should prioritize his actions in such a way that the most critical factor is treated promptly and other, less dangerous factors are given lesser priority. The correct treatment of this patient would have been for Respondent to direct all efforts of the E.R. team toward immediately reestablishing Prince's blood volume, then blood replacement. The wound itself could have been easily controlled by pressure, tourniqueted by the MAST pants, or even left for later care. Rather than misdirecting his attention to suturing the wound, Respondent should have performed the cutdown or placed a CVP catheter to start IV fluids as soon as it was evident that the nurses could not start the IVs and Respondent should have ensured that blood was being obtained as soon as possible. Respondent's suturing of the wound was ineffective in any case, as only superficial layers were stitched, and the wound remained unexplored. Respondent did not practice with the acceptable level of care, skill and treatment of a reasonably prudent similar physician under similar conditions and circumstances in that Respondent did not correctly assess Prince's physical condition and therefore misdirected his attention to suturing the wound instead of establishing intravenous access for immediate fluid replacement. Respondent's entire written medical record consists of his "Emergency Room Note." Respondent has documented no detailed history or physical examination: there is no documentation of the amount of blood loss, of the spurting blood, of the initial assessment of the patient's shock, or of consideration that the massive bleeding could have been from the great vessels and life threatening; there is no record that Respondent ever felt for pulses or obtained a pulse, no record of any neurological assessment or vascular status of the left leg distal to the wound, no conjunctival color noted, and no justification for giving his attention to the wound rather than immediately attempting to replace the lost blood volume; there is no note of a request for blood, how it could be or why it was not obtained. In short, prior to the cardiac arrest, there are no medical records written by Respondent which justify the course of treatment he followed with Prince.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order and therein REVOKE the medical license of Elliott F. Monroe. DONE and ENTERED this 19th day of June, 1991, in Tallahassee, Florida. DIANE K. KIESLING 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 this 19th day of June, 1991. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 91-0377 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2-13(1-9) and 14-53( 11-50). Proposed finding of fact 1 is unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Elliott Monroe Respondent's proposed findings of fact are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Mary B. Radkins, Senior Attorney Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Alfred O. Shuler Attorney at Law Post Office Box 850 Apalachicola, FL 32320 Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Respondent is a lay midwife licensed by the state of Florida. She has practiced as a licensed lay midwife in Florida since 1981. Respondent began her training in Boston, Massachusetts, in 1975 when she began participating in an apprenticeship program under the supervision of two Board-certified obstetricians. That training lasted for three years and included self-study, seminars, and workshops. As part of that apprenticeship program, Respondent delivered one hundred babies under the supervision of those physicians. After moving to Florida, Respondent obtained her license as a lay midwife after attending fifteen births under the supervision of a physician and after taking a written and oral examination. Since being licensed in Florida, Respondent has attended and graduated from the South Florida School of Midwifery. She has subsequently been a preceptor and instructor at that School and is on the Board for the School. At the time of the final hearing in this cause, Respondent was only two months away from receiving her nursing degree. Respondent is a member of the Midwives Association of Florida. During the course of her licensure in Florida, Respondent has attended all types of continuing education programs, particularly in the field of maternal and child health. While licensed in the state of Florida, she has attended between five hundred and seven hundred births, sometimes as the primary caregiver, sometimes assisting other midwives, and sometimes assisting physicians during hospital births. At all times material hereto, Respondent has maintained an ongoing relationship with Dr. Atilla Eagleman, an obstetrician and gynecologist. She frequently consulted with Dr. Eagleman, and he performed risk assessments on Respondent's patients. In other words, Dr. Eagleman was Respondent's "back-up" physician. Dr. Eagleman became Board-certified in December, 1990. When patient Sandy Freireich first consulted with Respondent on May 11, 1989, Freireich was seventeen to eighteen weeks pregnant with her fourth child. Respondent told Freireich that in order for her to be accepted as one of Respondent's patients, she needed to provide Respondent with proof that she had obtained an initial risk assessment by a physician. Freireich told Respondent that she had obtained that examination from her regular doctor who was an obstetrician and that she would bring Respondent a copy of her medical records documenting that examination on her next visit. Since Respondent performs an initial risk assessment on her patients, she did so with Freireich and determined that she was a low-risk patient. On at least seven occasions, Respondent told Freireich that Freireich had to provide Respondent with a copy of the initial risk assessment records from Freireich's physician. On each occasion Freireich promised to provide such a record. Respondent also strongly encouraged Freireich to see Dr. Eagleman and have him perform an initial risk assessment. Freireich agreed to do so. Respondent also requested permission from Freireich to allow Respondent to obtain Freireich's records directly from Freireich's doctor by having Freireich sign a medical records release form. Freireich insisted that she wanted to speak to her physician to make sure her doctor understood rather than simply sending him a form to release her records. Along the way Freireich missed several appointments with Respondent. For those appointments which she kept, she failed to bring with her the promised documents. On September 6, 1989, when Freireich was 32.4 weeks pregnant, she signed a medical release form authorizing Respondent to obtain her medical records directly from her doctor. On that visit, Respondent recommended to Freireich that she obtain her third trimester risk assessment from Dr. Eagleman. On September 14, 1989, Respondent received records directly from Freireich's obstetrician. Those records did not contain an initial risk assessment for Freireich's current pregnancy. On September 20, 1989, when Freireich was 34.4 weeks pregnant, Respondent caused Freireich to receive a risk assessment and a physical and prenatal examination by a certified nurse midwife in Respondent's office. That risk assessment also revealed that Freireich was a low-risk patient. It is unknown whether Freireich ever obtained an initial risk assessment during her first twenty-eight weeks of pregnancy. It is uncontroverted, however, that Respondent never received proof of such an initial risk assessment by a physician or by a certified nurse midwife. Furthermore, it is clear that Respondent consistently encouraged Freireich to obtain an initial risk assessment by a physician, and that it was Freireich who failed or refused to provide proof that such had been performed. In 1987 the Department proposed a number of changes to the rules regulating the practice of midwifery. The Florida Midwives Association challenged the proposed rules, and the Association and the Department engaged in a long-term dialog thereafter. New rules did not become effective until 1991. Although there were existing rules in place during that interim period, it became a common practice for midwives to contact Anne Richter, a consultant for the Department's midwife program. Based upon the information provided to her by a midwife, Richter would tell the midwife to care for a particular patient pursuant to the existing rules or pursuant to the proposed rules. It was common knowledge among the midwives in the state of Florida that the Department was informally allowing midwives to practice under the proposed rules rather than the existing rules and that one could call Anne Richter to obtain a "waiver" of rule requirements. On one occasion, Respondent had telephoned Richter regarding a patient who had come to Respondent when she was thirty weeks pregnant and had not obtained an initial risk assessment during her first twenty-eight weeks of pregnancy. Richter told Respondent that it was permissible for Respondent to accept that patient whose only risk factor was starting care after twenty-eight weeks. Respondent did not accept that patient. Although Respondent had intended to telephone Richter to seek permission to continue providing care to Freireich, Respondent neglected to do so. On October 30, 1989, Freireich left a message cancelling her appointment for that day. Later that afternoon she contacted Respondent to advise Respondent that she was in labor. She declined to allow Respondent to come to Freireich's home until after 8:30 p.m. because she wanted her other children to be asleep before Respondent got there. Respondent arrived at the Freireich home at 8:50 p.m. She assessed Freireich's labor, performed a physical examination, and began attending to Freireich's needs during labor. At 11:30 p.m., the fetal heart rate was 150. The patient took a shower. When she finished her shower at 11:50 p.m., Respondent checked the fetal heart rate and found that it had decreased to 90. Respondent appropriately instructed the patient to lay on her left side and gave her oxygen at six liters since the deceleration in the heart rate may have been indicative of a problem that needed to be rectified. At 11:53 p.m., Respondent appropriately checked the fetal heart rate and again found that it was 90. Respondent then assessed the patient and found the patient to be fully dilated with the baby at between 0 and +1 stations. Since the patient was fully dilated, Respondent instructed her to push. Respondent again checked the fetal heart rate and found that it had decelerated to 60. That the patient had a history of having rapid deliveries and was a multipara (had previously had one or more viable births) was significant in that it was very likely that with good expulsive efforts the baby would be delivered in a short time. Respondent was concerned when she got the decelerated fetal heart rate but believed birth to be imminent. An experienced birth practitioner can judge whether delivery will be expeditious. At 11:58 p.m. the baby was at the +2 station (half the way down the birth canal, i.e., half way out). The fetal heart rate was 60 when Respondent again checked. Respondent's extensive training and experience had made her aware that it was not unusual to encounter a decelerated fetal heart rate directly prior to birth. A deceleration of the fetal heart rate at the final stage of labor can result from "head molding," and the rotation of the baby. In other words, it is very common to have a fetal heart rate drop due to head compression and the transverse lie of the head during the final stages of delivery. In 98% of those cases, the decelerated fetal heart rate will return to base line. In Respondent's previous experience, babies who had similar deceleration in their heart rate came out vigorous and robust, or may have needed a little tactile stimulation or warmth to be resuscitated, but always came out normal. Her training dictated that the proper procedure was to assess whether delivery was imminent. Respondent knew that a heart rate of 60 sustained for a few moments with no progress would be considered an emergency situation necessitating physician consultation or contacting emergency medical services for transportation to a hospital. On the other hand, a fetal heart rate of 60 sustained for a few moments with progress was not unusual, and the best course of action was to facilitate delivery of the baby. Since her patient was having strong contractions, was making good expulsive efforts, and the baby was descending rapidly down the birth canal, Respondent knew that birth was imminent. Exactly twelve minutes after the patient came out of the shower, the baby was delivered. The baby was stillborn. Respondent had no indication prior to the delivery of the baby that the baby would be severely compromised or dead. Respondent is fully trained in resuscitation of babies. She is certified in medical CPR, has taken many continuing education courses in emergency procedures, and is certified in and carries with her the equipment necessary for neonatal resuscitation: neosuctioning, an Ambu Bag, and oxygen. When the baby was delivered at 12:02 a.m., Respondent caused one of the adults present to contact fire rescue. Respondent immediately began resuscitation efforts and continuously attempted to resuscitate the baby until the fire rescue unit arrived, which was fifteen minutes after fire rescue was called the first time. Between the first decelerated fetal heart rate and delivery of the baby twelve minutes later, Respondent did not refer the patient to a physician or consult with Dr. Eagleman because to do so would have taken time away from managing a potentially dangerous situation and because she knew that Dr. Eagleman would merely tell her to get the baby delivered. Further, Respondent did not consider the drop in the heart tones to be abnormal requiring her to refer the patient to a physician since there was rapid progress and birth was imminent. Dr. Eagleman verified during the final hearing in this cause that had Respondent contacted him during the twelve minutes in question to report the decelerated heart rate, he would have told her to get off the telephone, go back to her patient, and "get the baby out." Respondent had never previously delivered a stillborn. There is no suggestion made in this record either that Respondent should have known that the baby would be stillborn or that Respondent contributed in any way to cause that unfortunate outcome. Respondent contacted Anne Richter to advise her what had happened and subsequently sent written reports to Richter detailing her care of patient Freireich. Petitioner has never before taken disciplinary action against Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered Finding Respondent guilty of violating Rule 10D-36.042(1), Florida Administrative Code (1989); Finding Respondent not guilty of violating Rule 10D-36.46(4)(e), Florida Administrative Code (1989); Finding that no disciplinary action should be imposed because the violation was neither willful nor repeated; and Dismissing the Notice of Formal Reprimand filed in this cause. DONE and ENTERED this 31 day of March, 1992, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this day of March, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 91-1953 Petitioner's proposed findings of fact numbered 1, 2, 7, 8, 15 and 16 are adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 3-6, and 9-14 are rejected as not being supported by the weight of the competent evidence in this cause. Respondent's proposed findings of fact numbered 1-9, 12, 13, 15, 19-33, and 35-39 are adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 10 is rejected as not being supported by the weight of the competent evidence in this cause. Respondent's proposed finding of fact numbered 18 is rejected as being subordinate to the issues herein. Respondent's proposed findings of fact numbered 11, 14, 16, 17, 34, and 40 are rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. COPIES FURNISHED: Karen Miller, Esquire District IX Legal Counsel Department of Health and Rehabilitative Services 111 Georgia Avenue West Palm Beach, Florida 33401 Thomas G. Sherman, Esquire 218 Almeria Avenue Coral Gables, Florida 33134 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
