The Issue The issues for determination in this case are whether Respondent's license to practice medicine should be revoked or otherwise disciplined for the reasons set forth in the Administrative Complaint, specifically for: 1) Respondent's failure to meet the acceptable standard of care for psychiatry in not immediately admitting patient J.R. to an intensive in-patient care facility; 2) Respondent's failure to justify his failure to admit patient J.R. to an intensive in-patient care facility; and 3) Respondent's failure to maintain records which state why patient J.R. was not admitted to an intensive in-patient care facility.
Findings Of Fact Petitioner, Department of Health, is the state agency vested with the statutory authority to enforce the disciplinary standards for the practice of medicine under Chapters 455 and 458, Florida Statutes. Respondent, Ashok M. Patel, M.D., is and at all material times was, a physician licensed to practice medicine in Florida, having been issued license number ME 0066214. Respondent practices psychiatry in Largo, Florida. Respondent is board certified in psychiatry. On July 31, 1996, Patient J.R. was referred for an appointment to Respondent by Professional Psychological Services (hereinafter PPS), a mental health care provider with which Respondent was contractually affiliated. At this time J.R. was a 44-year-old white male who was employed as a paramedic, and later as a firefighter for the City of Clearwater. J.R. had worked in this capacity for over 19 years. J.R. was happily married to P.R. for more than 11 years. The couple had no children. In the weeks preceding his appointment with Respondent, J.R. was experiencing severe depression. The primary basis of J.R.'s depression was chronic health problems. J.R. had a history of back problems which began in 1980. He had back surgery in 1989, and suffered from psoriatic arthritis in his back which adversely affected his ability to function effectively as a paramedic and later as a firefighter. In July of 1996, J.R. had the job of driver of the firetruck. In July of 1996, J.R. was under the care of his primary physician Dr. Mark Smitherman, as well as a rheumatolgist, Dr. Adam Rosen, who prescribed medicine for J.R.'s chronic pain. On July 22, 1996, during an appointment with Dr. Smitherman, J.R. expressed his feelings of depression. Dr. Smitherman suggested that J.R. contact PPS, the psychological services provider of J.R.’s employment insurance plan. An appointment with PPS was thereafter scheduled for July 31, 1996. J.R. also had previously expressed his feelings of depression to Dr. Rosen who had prescribed Serzone, an anti-depressant for J.R. J.R. went to work at the firehouse on Monday, July 29, 1996. At some time during the evening while the other firefighters were asleep, J.R. removed a defibrillator from the firetruck, went to a private room, and used the defibrillator on himself in an unsuccessful attempt to commit suicide. The following morning of Tuesday, July 30, 1996, J.R. returned home at approximately 8:00 a.m., and telephoned his wife, P.R., who was already at work. J.R. informed his wife of his suicide attempt. P.R. immediately went home and called PPS, explained the circumstances, and requested an earlier appointment. Arrangements were made with PPS to reschedule J.R. from his existing appointment on Wednesday, July 31, 1996, to an appointment July 30, 1996, at 7:00 p.m. Later that day, the appointment was moved up to 5:00 p.m. When J.R. and his wife arrived at PPS they met with Betti Pate, a licensed mental health counselor employed by PPS. During the course of her evaluation, Betti Pate noted that J.R. was severely depressed with a suicide attempt within the previous 24 hours. Ms. Pate in her care plan for J.R. identified three problems, depression, fear of being left alone, and suicidal ideation. Under intervention, she noted, "prevent suicide, daily observation." Betti Pate’s note to her supervisor stated that J.R. was fearful, very depressed and negative. She also noted that J.R. was "afraid he’ll try again if alone." After Betti Pate’s evaluation on July 30, 1996, her supervisors at PPS recommended that J.R. enter a Partial Hospitalization Program (PHP) at Charter Behavioral Health System of Medfield Hospital (Charter). The PHP at Charter was a mental health counseling program which was conducted during the day at the hospital. The primary focus of the Charter PHP was mental health therapy provided in group settings with licensed mental health counselors. The care plan for J.R. was to provide partial hospitalization at Charter during the day while his wife was at work. J.R. would then return home to his wife in the evening. Under this arrangement J.R. would not be alone for extended periods of time. Admission to the PHP at Charter required the concurrence of an admitting psychiatrist. Because the other psychiatrists employed by PPS were unavailable, an appointment was made for J.R. to be evaluated by Respondent who, although in private practice, had an affiliate agreement with PPS to render mental health services to referred patients. PPS made an appointment for J.R. to see Respondent on Wednesday, July 31, 1996, at 4:00 p.m. It was common and usual practice for PPS to refer patients to Respondent for evaluation prior to admission to PHP, as well as for evaluation of a patient’s medications. J.R. went alone to his appointment with Respondent. Prior to seeing Respondent, J.R. completed a patient information document. J.R. described his reason for visit as "mental health & coping problem." He circled the following problems which pertained to him: nervousness, anxiety, insomnia, stress, headaches, overwhelmed, obsessive thoughts, compulsive behavior, depression, loneliness, fears, suicidal thoughts, concentration, appetite changes, helpless/hopeless, low energy, sexual problems, impulsive behavior, medical problems, and physical pain. J.R. listed the medications he was taking as Serzone 150 mg (10 day), Lortab 7.5/500, Robaxin 750 mg. J.R. indicated that he had not received prior psychiatric treatment. After completion of the patient information document, J.R. was seen by Respondent. Respondent observed that J.R. was casually dressed and not dishelveled, was articulate, made eye contact, was appropriately aware of time and place, and able to communicate effectively. Respondent asked J.R. the nature of the problem that had brought J.R. to him. Respondent then conducted a medical history, a family history, and a history of the problems leading to the visit to Respondent. In the course of his evaluation of J.R., Respondent completed a clinical assessment form which included a DSMIV diagnosis. According to Respondent’s records J.R. stated as "chief complaint" that "I was referred by PPS." In history of present illness, Respondent notes that: "Patient is 44 year-old white male came in complaining of chronic back pain, decreased sleep agitation, irritability." Patient says he is feeling depressed, says he tried to kill himself using defibrillator on Monday, but says it did not work. Patient had suicidal thoughts for 1-2 weeks, but feels guilty about doing it. Says it was stupid to hurt himself. Weight loss of 14 pounds in two and one-half months, decreased appetite. No SI(suicial ideation)/ No HI(homicidal ideation)/ No AH(auditory hallucinations)/ No VH(visual hallucinations)/ No PI(paranoid ideation) at present. During the course of Respondent’s evaluation, J.R. related that he had been seen at PPS on July 30, 1996, that he had an appointment to see Betti Pate the following day, and that arrangements were being made by PPS for him to begin PHP at Charter; however, Respondent did not have J.R.’s PPS evaluation nor Betti Pate’s notes at the time of J.R.’s office visit. J.R. also related that he had a supportive wife, although Respondent did not have any personal contact with Mrs. J.R. at this time. Respondent’s evaluation of J.R. lasted over one hour. In his diagnosis Respondent determined that J.R. had major severe depression, and that J.R. presented a moderate suicide risk. In his recommendation/plan for J.R. Respondent’s notes reflect the following: "Increased Serzone 100mg two Bid; continue out-patient counseling; start Xanax 0.25 mg. 1/2-1 tid prn.; follow up in 2 weeks; and, made aware of 24 hours availability." Respondent also advised rest for 2 weeks. At this time Respondent did not know when J.R. would begin PHP at Charter. After leaving Respondent’s office J.R. went home and expressed to his wife some difficulty in understanding Respondent who is a native of India. The next day Thursday, August 1, 1996, Mrs. J.R. contacted PPS to inquire about J.R. seeing a different psychiatrist. Neither J.R. nor Mrs. J.R. contacted Respondent, and PPS did not refer J.R. to another psychiatrist. Because of J.R.’s use of the defibrillator, PPS requested medical clearance from J.R.’s primary care physician Dr. Smitherman prior to admission to PHP at Charter. On Thursday, August 1, 1996, J.R. telephoned Dr. Smitherman and received medical clearance to begin PHP at Charter. J.R. was scheduled to begin PHP at Charter on Monday August 5, 1996. J.R. received no mental health therapy or counseling from the time he left Respondent’s office on Wednesday, July 31, 1996, until Monday, August 5, 1996, when he arrived at Charter. J.R. spent some of this time doing routine shopping, errands and going to the beach where he regularly exercised by swimming. J.R. and his wife also discussed future plans together. On Monday, August 5, 1996, J.R. was admitted to PHP at Charter. At this time Charter telephoned Respondent for admission instructions for J.R., which Respondent as the attending physician gave for J.R. During the course of the day, J.R. attended group therapy sessions at Charter. The Charter records indicate that J.R. presented a flat appearance, and was not actively engaged in the therapy sessions. The following day, Tuesday August 6, 1996, J.R. had a previously scheduled appointment with his rheumotolgist, Dr. Rosen. Because of this previously scheduled appointment J.R. was allowed to miss his therapy sessions at Charter on August 6, 1996, with the understanding that he would return and continue his therapy at Charter on Wednesday August 7, 1996. On Tuesday, August 6, 1996, J.R. went to his appointment with Dr. Rosen. At some time after leaving Dr. Rosen’s office J.R. returned home and committed suicide by hanging himself in the garage where his wife found him later that day. Respondent had no contact with J.R. subsequent to July 31, 1996. Three expert witnesses in the field of psychiatry presented testimony in this matter: Dr. Martin Rosenthal; Dr. Arturo Gonzalez; and, Dr. Daniel Sprehe. All three expert witnesses concur that Respondent’s diagnosis of J.R. was correct and met the appropriate standard of care. Moreover, all three expert witnesses agree that Respondent’s prescribed medications for J.R. were correct and met the appropriate standard of care. While Drs. Gonzalez and Sprehe opined that Respondent’s treatment plan for J.R. was appropriate, Dr. Rosenthal testified that Respondent’s treatment of J.R. in "certain limited ways" did not meet the standard of care. Specifically, Dr. Rosenthal opined that even though J.R. was a moderate suicide risk, he would have hospitalized J.R. The medical literature submitted as part of the record in this case is consistent in stating that suicide in an individual patient is not a predictable event. The factors that are considered by psychiatrists in evaluating the risk of suicide are subjective to the individual patient. In order to be of imminent risk, a patient must have suicidal intent, lethal means, and opportunity. All the experts in this case agree that Respondent made the proper diagnosis of J.R., which included a finding that when Respondent saw J.R., the patient had no suicidal ideation. At the time J.R. was seen by Respondent the evidence shows not only did J.R. have no present suicidal ideation, but he also expressed regret over having made a suicide attempt, and specifically stated to Respondent that he felt stupid about trying to hurt himself. The expert evidence is supported by the medical literature, that under such circumstances the appropriate standard of care does not require immediate hospitalization.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the February 3, 1998, Administrative Complaint against the Respondent, Ashok M. Patel, M.D. DONE AND ENTERED this 30th day of December, 1998, in Tallahassee, Leon County, Florida. RICHARD A. HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1998. COPIES FURNISHED: Kristina Sutter, Esquire Agency for Health Care Administration 2727 Mahan Drive Post Office Box 14229 Tallahassee, Florida 32317 A. S. Weekley, Jr., M.D., Esquire Holland & Knight 520 Vonderburg Drive, Suite 3005 Brandon, Florida 33511 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A-02 Tallahassee, Florida 32399-1703 Dr. James Howell, Secretary Department of Health Bin A00 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast Bin A-02 Tallahassee, Florida 32399-1703 Tanya Williams, Executive Director Board of Medicine Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue for determination is whether Petitioner is eligible for licensure as a physician in Florida by endorsement pursuant to Chapter 456, Florida Statutes, in view of his alleged violations of Section 458.331(1)(h),(k) and (m), Florida Statutes.
Findings Of Fact Petitioner is licensed as a physician in the state of Kentucky. Petitioner's application for licensure by endorsement in the State of Florida was preliminarily denied by Respondent on April 25, 2001. As grounds for its intended denial, Respondent stated that Petitioner had: (1) signed a Kentucky death certificate for an individual that Petitioner had not examined; (2) diagnosed psychosis based on an informal conversation previously had with the individual; (3) failed to keep records of the informal conversation or consultation with the individual; and (4) submitted a post death diagnosis of the individual to the Social Security Administration, without a medical examination of the individual, in order to obtain social security benefits for the individual's wife. The individual referenced by Respondent's denial was Claude B. Williams. He was the husband of the sister of Petitioner's wife. Petitioner did not have a close relationship with Williams. Petitioner spoke with Williams a few times at their mother-in-law's house. In the course of one of these conversations on November 8, 1996, Petitioner refused to provide a prescription for back pain mediation to Williams on the basis that Williams was not his patient. On November 19, 1996, Williams suddenly took his pistol out of his bedroom and shot himself in the head in front of his wife and her two children by a former marriage. Williams died instantly. Petitioner was not involved in an autopsy of Williams. Nevertheless, Williams' widow asked Petitioner to sign a death certificate for the dead man so that she could apply for social security benefits. The coroner investigating the death had not yet issued a death certificate. Petitioner acceded to his sister-in-law's request in December of 1996, by writing a letter to the Social Security Administration. On Petitioner's professional letterhead, the letter was signed by Petitioner in his capacity as a physician. Petitioner recounted in the letter that Williams had "consulted" him on November 8, 1996. The letter concluded with Petitioner's diagnosis that Williams suffered an acute psychotic breakdown due to a toxic drug reaction, which in turn led to Williams' death. The letter was couched in terms that presumed a physician-patient relationship and did not reveal that Petitioner was not the treating physician for Williams. On January 14, 1997, Petitioner met with and sought to influence the coroner (a lay person) who was investigating Williams' death in the state of Kentucky. The coroner told Petitioner that it could be a year before the death certificate was issued by the coroner as certain test results were not yet available. Petitioner did not discuss with the coroner the idea of Petitioner personally signing a death certificate for Williams. Petitioner went to the funeral home following his discussion with the coroner and proffered a death certificate that he had prepared to the director of the funeral home, asking the director to file the certificate. The director refused to file the certificate. In the proffered death certificate, Petitioner had set forth a diagnosis for Williams' death: "[A]cute toxic delirium, depression and psychosis" resulting from a reaction to a high dose of steroids. This diagnosis was based solely on the one conversation that Williams had with Petitioner on November 8, 1996, and was not based on a physical examination or any diagnostic tests of Williams. The parties have stipulated that Williams died of a self-inflicted gunshot wound on November 19, 1996. The coroner filed a complaint against Petitioner on March 10, 1997, with the Kentucky Board of Medicine. In response to an investigation conducted by that Board, Petitioner asserted that "a physician/patient relationship existed" between himself and Williams. Petitioner did not have and did not maintain any records documenting treatment or consultation with Williams. The Kentucky Board of Medicine found that Petitioner's actions constituted misconduct, although not serious enough to warrant issuance of a disciplinary complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered denying Petitioner's application for licensure in the State of Florida by endorsement. DONE AND ENTERED this 13th day of September, 2001, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 2001. COPIES FURNISHED: Lee Ann Gustafson, Esquire Office of the Attorney General Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 M. Catherine Lannon, Esquire Office of the Attorney General Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 A. S. Weekley, Jr., M.D., Esquire Holland and Knight LLP 400 North Ashley Drive Suite 2300 Tampa, Florida 33602-4300 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Did the Respondent commit the violations alleged in the Amended Administrative Complaint dated March 2, 2001, and if so, what penalty should be imposed?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Board is the agency charged with regulating the practice of medicine in the State of Florida. Respondent, Carl W. Liebert, Jr., M. D. (Dr. Liebert) is and, at all times material hereto, has been licensed to practice medicine in the State of Florida, having been issued license number ME0047601. Respondent is Board-certified in surgery. On January 29, 1997, Respondent performed an abdominal aortic aneurysm repair and an aortobifemoral graft on E. T., a male patient, approximately 70 years of age. The site of the graft for the left femoral artery intruded partially upon the site of a previous graft of the femoral artery performed in 1986. This graft failed immediately after the procedure. Respondent sutured the graft at the left femoral artery partially into old scar tissue from the 1986-failed graft. After the surgery, on the Sunday before his release from the Naples Community Hospital (Hospital) on Thursday, February 6, 1997, E. T. suddenly and abruptly fell in his hospital room. Respondent was concerned about the possible damage this fall may have caused to the surgical repair. Although E. T. experienced pain in his left groin area, the location of one of the aortobifemoral grafts, while in the Hospital, there is no evidence that any harm resulted from the fall or that the pain was a result of the fall. After the surgery, during E. T.'s stay in the Naples Community Hospital (Hospital), there was lymphatic drainage, a pinkish colored fluid, from the incision in his left groin. While the lymphatic fluid may have been blood stained resulting in the pinkish color, the lymphatic drainage was not as described in the nurse's notes as being "a bloody discharge." On Thursday, February 6, 1997, E.T. was discharged from the Hospital. After E. T.'s discharge from the Hospital, his wife cared for him in their home in Naples, Florida. As expected by Dr. Liebert, the incision in E. T.'s left groin area continued to have lymphatic drainage after E. T.'s discharge from the Hospital. The incision in E. T.'s left groin area continued to drain a pinkish colored fluid. The lymphatic drainage from the incision in E. T.’s left groin continued over the weekend and on Monday, February 10, 1997, E. T.'s wife contacted Respondent's office to advise Respondent of the drainage and of the pain E. T. was experiencing. Although E. T.'s wife did not speak directly to Respondent, she assumed that the person to whom she spoke with over the telephone conveyed her message to Respondent. E. T.'s wife was given a prescription for Percocet for pain and told that Respondent would see E. T. in his office on Thursday, February 13, 1997. On Wednesday, February 12, 1997, while showering and cleansing the incision on his left groin, E. T. inadvertently disturbed the incision on his left groin, which caused the incision to drain profusely. After leaving the shower, E. T.'s wife assisted E. T. in drying-off his body and controlling the drainage from the incision. The wife stemmed the flow of the drainage with a towel and called the Collier County Emergency Medical Services (EMS) and Respondent's office. The wife explained to the person answering Respondent's telephone, the circumstances of the occurrence with E. T., and that she had called the Collier County EMS personnel. The wife also requested that Respondent come to the Hospital. On February 12, 1997, in response to E. T.'s wife's call, the Collier County EMS personnel responded to E. T.'s home at approximately 7:25 a.m., performed an initial treatment for the drainage from E.T.'s left groin and transported E. T. by ambulance to the Hospital. The EMS personnel noted that E. T. complained of bleeding and it was their initial impression that E. T. was bleeding from his femoral artery. However, the EMS personnel did not confirm that E. T. was bleeding from his left femoral artery. The EMS personnel also noted what they considered to be a large amount of thick, clotty blood, which they estimated to be approximately 1000 milliliters (ml's) or 1000 cubic centimeters (cc's), surrounding E. T. Based on the records of the EMS personnel and on E. T.'s description given to Dr. Mulert, E. T.'s wife's testimony that the incision spurted blood for approximately 3- 4 feet appears to be somewhat exaggerated. The EMS personnel, assuming that E. T. had recently loss blood, administered 300 cc of fluid intravenously to E. T. When the EMS personnel attempted to move E. T., the drainage from the incision started again, but was controlled with a trauma dressing and pressure applied by a sandbag. The EMS personnel presented E. T. at the Emergency Room (ER) of the Hospital at approximately 7:52 a.m. on February 12, 1997. The ER nurse noted that a pressure dressing along with a sandbag had been applied and that the drainage or bleeding was under control. The ER nurse drew blood from E. T. and noted in her record that it was for a "type and cross" in preparation for a blood transfusion should one become necessary. However, Dr. Robert Mulert, the ER physician who attended E. T. while in the ER, noted in his records that he had requested a "type and hold," a less elaborate procedure than a "type and cross," which requires checking the antibodies and making sure the blood in question is compatible blood. Based on his estimate of E. T.'s blood loss and E. T.'s vital signs and other health conditions, Dr. Mulert did not consider E. T. as a patient in need of a blood transfusion. Upon E. T.'s arrival at the Hospital, Dr. Mulert made a brief assessment of E. T.'s condition to confirm that there was no active bleeding and that the patient did not need emergent intervention. Although Dr. Mulert is not a vascular surgeon or even a general surgeon, he has one year of residency training in surgery and is a Board-certified emergency room physician who has been working as an emergency room physician for approximately 27 years. Dr. Mulert is qualified to examine patients such as E. T. and advise the primary treating physician of his findings. Dr. Liebert has worked with, and relied on, Dr. Mulert's expertise as an emergency room physician in treating many of his patients who are presented at the Hospital for emergency treatment for approximately 15 years. Dr. Mulert discussed E. T.'s condition by telephone with Dr. Liebert on two separate occasions during E. T.'s visit to the Hospital on February 12, 1997. The first occasion was shortly after E. T. was admitted to the Hospital ER. During this first occasion, Dr. Mulert advised Dr. Liebert that his patient, E. T. had been admitted to the Hospital with a reported acute hemorrhaging or bleeding of the incision in the area of his left groin and that E. T.'s wife was asking for Dr. Liebert. In some instances, the primary physician will assume treatment at this juncture. However, it is not unusual for the ER physician to continue treatment. The decision was for Dr. Mulert to continue treatment and to keep Dr. Liebert advised as to E. T.'s condition. There is nothing in the record to indicate Dr. Liebert's location on the morning of February 12, 1997; nor is there any evidence to indicate that Dr. Liebert was prevented from examining E. T. on the morning of February 12, 1997. Also, during this first discussion, Dr. Mulert advised Dr. Liebert, based on the information that he had gathered, that E. T.'s blood loss was approximately 500 cc's but that there was no active bleeding at that time. Dr. Mulert also advised Dr. Liebert that he intended to deal with the patient's problems by proceeding with his plan to assess E. T.'s blood count, to monitor E.T.'s vital signs, and to see if the patient met Dr. Mulert's criteria for stability: Can he get up? Can he walk? Can he talk? Does the patient make sense? Does the patient have discharge stability? Subsequent to this first discussion, Dr. Mulert made a more detailed examination of the wound to determine if the wound was infected, the depth of the wound, and the need to pack the wound with sterile dressing, etc. After reviewing the EMS personnel records, E. T.'s history, talking with E. T., and reviewing the results of his examination, Dr. Mulert's impression was that E. T. had a hematoma under a surgical wound; that the wound had come apart; and that the collection of blood (old blood) within the hematoma had expressed from that surgical wound. The blood within the hematoma is referred to as "old blood" in that it was no longer in the vascular system and was not being replenished with oxygen. While E. T.'s vital signs were low compared to his vital signs taken while in the Hospital on visits prior to February 12, 1997, they were not significantly lower and were within a normal range for a patient, such as E. T., who was on beta blockers. E. T.'s vital signs were inconsistent with an aggressive femoral graft leak. The hematocrit and hemoglobin values on February 12, 1997, were slightly lower than the hematocrit and hemoglobin values while in the hospital during his most recent visit in January 1997. However, based on the testimony of Dr. Liebert, which I find to be credible, that was to be expected since E. T. had been given a significant amount of auto-transfused blood during his surgery on January 29, 1997. Also, the lower values were consistent with a 500 cc or less blood loss by a patient that had just recently undergone surgery. During either the first or second conversation, Dr. Mulert advised Dr. Liebert that the surgical site had come apart. During his care of E. T., Dr. Mulert became aware that Dr. Liebert had performed an abdominal aortic aneurysm repair earlier in the year, and that the repair was under the nine-inch incision on E. T.’s left groin but did not know the exact location of the repair. If Dr. Liebert made a diagnosis, he did not convey such diagnosis to Dr. Mulert. Neither Dr. Liebert nor Dr. Mulert discussed or made a differential diagnosis. However, it was the testimony of both Dr. Mulert and Dr. Liebert, which I find to be credible, that based on the facts presented in respect to E. T. by Dr. Mulert, a differential diagnosis was unnecessary. A differential diagnosis is a mechanism physicians use to identify and evaluate possible alternative causes for observed symptoms. During the second telephone conversation, Dr. Mulert advised Dr. Liebert that the patient had been stable for approximately four hours, that his vital signs were within normal ranges, that his blood counts were basically unchanged, that there was no active bleeding and had not been any active bleeding for approximately four hours, that the patient was up and walking around the ER, that the patient was asymptomatic when vertical that the patient was not orthostatic when walking, that the patient wanted to go home, and that the incision in the left groin area needed to be repaired. There was no discussion between Dr. Mulert and Dr. Liebert concerning the admission of E. T. to the Hospital for the purpose of further examining the possibility of arterial bleeding. Ultrasound and computerized tomography (CT) were available to patients at the Hospital. While these tests don't always "rule out" internal bleeding or suture line disruptions, they can, in certain instances, "rule in" these conditions. Based on the facts in respect to E. T.'s condition presented by Dr. Mulert on February 12, 1997, particularly that they were dealing with an open wound, and Dr. Liebert's feelings as to the somewhat limited use of these tests in this type situation, there was no ultrasound or CT scan performed. Based on the facts in respect to E. T.'s condition as presented by Dr. Mulert on February 12, 1997, the failure of Dr. Liebert to utilize the ultrasound or CT scan to further examine E. T. in regard to arterial bleeding does not constitute the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonable prudent similar physician as being acceptable under similar conditions and circumstances, notwithstanding the testimony of Michael J. Cohen, M.D. to the contrary. Subsequently, Dr. Mulert sewed up the incision which had come apart. Dr. Liebert did not personally examine E. T. at any time while he was in the ER to evaluate the cause of E. T.'s problem in relation to arterial bleeding, but relied on Dr. Mulert to provide him with facts surrounding E. T.'s condition based on Dr. Mulert's examination of E. T. and his assessment of E.T.'s problem. Based on the facts in respect to E. T.'s condition in relation to arterial bleeding as presented by Dr. Mulert on February 12, 1997, the failure of Dr. Liebert to personally examine E. T. prior to his discharge or to delay E. T.'s discharge so as to allow time for Dr. Liebert personally examine E. T. to determine for himself E. T.'s problem in relation to arterial bleeding does not constitute the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonable prudent similar physician as being acceptable under similar conditions and circumstances, notwithstanding the testimony of Michael J. Cohen, M.D. to the contrary. 38. E. T. was discharged from the Hospital at approximately 12:00 noon on February 12, 1997. After his discharge on February 12, 1997, E. T. had an uneventful afternoon and evening. After getting out of his bed on the morning of February 13, 1997, E. T. walked from his bedroom into the kitchen and as he stood in the kitchen the left groin incision erupted again, hemorrhaging blood onto the kitchen floor. The EMS personnel were called responded to the call around 5:30 a.m. Prior to the arrival of the EMS personnel the bleeding had stopped. The EMS personnel noticed a moderate blood loss. The EMS personnel dressed the left groin wound, administered fluids and transported E. T. to the Hospital where he was admitted to the ER at approximately 6:00 a.m. Although E. T. received blood and fluids, his condition deteriorated rapidly and E. T. expired at approximately 7:24 a.m. on February 13, 1997. No autopsy was performed. However, the cause of death was most likely myocardial infarction that resulted from a loss of blood.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order dismissing the Amended Administrative Complaint dated March 2, 2001. DONE AND ENTERED this 1st day of August, 2001, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2001. COPIES FURNISHED: Robert C. Byerts, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Ralph L. Marchbank, Jr., Esquire Post Office Box 3979 Sarasota, Florida 34230 Tanya Williams, Executive Director Board of Medicine Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A00 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A00 Tallahassee, Florida 32399-1701
The Issue The issues to be decided concern the question of the entitlement of the Petitioner to receive retirement benefits envisioned by Section 121.091(7)(c)1., Florida Statutes, related to the alleged in-line-of-duty death of her husband, Eddie Lee Robinson, Jr.
Findings Of Fact From January 7, 1969, until his death on April 12, 1984, Eddie Lee Robinson, Jr., served as a deputy sheriff in Gadsden County, Florida. In May 1971 the deceased was made a shift commander with that department and those were his duties from that period until the end. He held the rank of Captain at the time of his death. In his capacity as a shift supervisor, Eddie Lee Robinson, Jr., was in charge of the overall sheriff's office for part of the day. In essence, Robinson was the senior officer in charge while actively serving as a shift commander. The shift which Robinson worked would vary over time. The normal work week for Robinson at the time of his death was 46 to 50 hours. During his employment with the Gadsden County sheriff's office, Captain Robinson had been enrolled in the Florida Retirement System. Robinson had married Petitioner Margie Robinson, formerly Margie Rittman Mashhurn, on August 18, 1980, and was married to the Petitioner at the time of his death. In early October 1983 Eddie Lee Robinson, Jr., experienced an onset of severe chest pain syndrome. At that time he was seen by Dr. Earl Britt, a licensed physician in the state of Florida, who is board eligible in cardiology. In the patient history given to Dr. Britt at the time, Robinson indicated that he had a cardio-respiratory complaint as early as 1975 and was seen in an emergency room for that condition. The chest pain that he suffered on that occasion persisted off and on from that date forward and became more pronounced in the several weeks prior to the October 1983 visit with Dr. Britt. At that point in time Robinson complained of shortness of breath, even with limited physical activity. In 1976 Robinson had been diagnosed as suffering with diabetes and was taking medication for that condition. In October 1983 Robinson was overweight and suffered from hypertension. When seen by Dr. Britt on this occasion, Robinson was a smoker who had used a pack of cigarettes a day for approximately 35 years. At the time of his visit in October 1983 Robinson indicated that he had experienced what Dr. Britt describes as postcoital chest discomfort, some emotionally provoked chest pain and postprandial chest pain. Upon the recommendation of Dr. Britt, Robinson submitted himself to a coronary arteriogram which was done on October 4, 1983. This catherization process was performed by Dr. Charles C. Bianco, a licensed Florida physician who specializes in diagnostic radiology and, in particular, cardiovascular radiology. Dr. Bianco is a board certified radiologist. The results of the coronary arteriogram which Dr. Bianco performed revealed blockages ranging from 95% to 100% in the coronary arteries of three vessels. Given these facts, Dr. Britt recommended that Captain Robinson submit himself to by- pass surgery to correct these conditions. Captain Robinson declined this treatment, opting instead to be treated with medication provided by Dr. Britt. Following the October 1983 episode, Captain Robinson returned to his duties with the Gadsden County Sheriff's Office. His employer was aware of Robinson's heart condition when he returned to work. At the time of his death and those days before his death, Captain Robinson was on regular duty for the sheriff's office as a shift commander. The sheriff's office had made provision for him to take an hour off at the end of his shift to exercise by walking on those days when his shift ended around 6:00 p.m. This arrangement was not carried out if his duties demanded that he remain at his post throughout the entire shift sequence. In the late evening of April 10, 1984, Captain Robinson was summoned to the Gadsden County jail to assist the chief jailer, Lieutenant Cecil Morris. In particular, Lieutenant Morris was experiencing problems with an inmate, Morris Brown, who was incarcerated for attempted armed robbery and some form of aggravated battery or assault. Brown was a juvenile who had been adjudicated under the criminal law system pertaining to adults. He was some 6'1" and 200 pounds. Brown was a problem inmate who had destroyed lockers within the jail. On the night in question when Captain Robinson was summoned to the jail around 8:00 or 9:00 p.m., Brown had flooded his jail cell. Robinson and Morris entered the jail cell and Robinson talked to Brown to try to calm the inmate down. In doing so, Robinson shook a can of mace and told Brown that if Brown did not calm down, Robinson would have to mace him. Brown responded by indicating that he wished that Robinson would do that so that he could sue him. Brown also told Robinson, "If I get out, I know where you live." Eventually, Brown became less belligerent. Robinson then explained to Brown that they were going to have to put handcuffs on him, to which Brown replied that nobody was going to cuff him. Robinson and Morris then took the prisoner by the arms and moved him toward a bed or bunk within the cell. While this was transpiring, the prisoner pulled away from Morris, causing Morris to have to grab his arm again. Subsequently, Brown was moved back toward the bunk and pulled down to the bunk's surface. While Brown was seated on the bunk, a third officer put cuffs on him, and Brown struggled while this was being achieved. Throughout this episode Brown's basic demeanor evidenced antagonism. The situation with Morris Brown lasted for a period of five to fifteen minutes. Captain Robinson's reputation in his law enforcement work was that of an officer who was able to diffuse difficult situations with persons he encountered in his law enforcement work by talking to them as opposed to physical confrontation. Nonetheless, there were occasions where Robinson was called upon to physically subdue prisoners. In the experience of Lieutenant Morris, the previously described circumstance was the only occasion in which Robinson had been observed to interact physically with a prisoner. The extent of that physical confrontation did not include exchange of punches between the participants. When Captain Robinson returned home following the incident with Brown, he discussed that situation with his wife. The discussion was held on that same evening or the early hours of the following morning. His remarks and physical appearance pointed out how disturbed he was about the Brown incident. He seemed despondent. In the course of the conversation, Robinson took nitroglycerin because of his physical condition. He had not taken nitroglycerin for an identifiable period prior to that evening. (Nitroglycerin had been prescribed by Dr. Britt for Captain Robinson's heart condition.) Robinson remarked to his wife that he was "hurting." He told her that the prisoner Brown had flooded the jail cell and he had to go in and help restrain the prisoner. This was only the third incident, to the knowledge of his wife, in which Robinson had physically struggled with someone while performing his duties. On the following day, Captain Robinson went off duty. He visited with his mother, Lena Robinson, on a couple of occasions during that day and talked to two of his acquaintances, Luke McCray and King Baker. While in the presence of his mother and the other two individuals, there was no indication of pain on the part of Captain Robinson, nor did he use any medication. In their presence he did not appear troubled. In the late night of April 11 or early morning of April 12, 1984, while at home, Captain Robinson complained to his wife that he could not breathe. He took two nitroglycerin, began to have cold sweats and expired, having suffered a fatal heart attack described as an acute myocardial infarction, sudden death syndrome. At the time of his death, Eddie Lee Robinson, Jr., was 50 years old. Dr. Britt is qualified to give expert medical opinion testimony on the question of the cause of death of Eddie Lee Robinson, Jr. Those qualifications are based upon Dr. Britt's training and experience as a physician and specialist in cardiology, his familiarity with the deceased's underlying health and his knowledge of the basic facts of Robinson's encounter with Brown, the remarks of the Petitioner about the deceased's condition on the evening of the Brown incident when the deceased returned home and the explanation of the death approximately 26 to 28 hours later. In remarking on these matters, in his deposition of May 22, 1986, at page 9 under questioning by counsel for the Petitioner, Dr. Britt said: Assuming these facts, Doctor, within a reasonable degree of medical probability, is it your medical opinion that the struggle at the jail that night caused the death of E.L. Robinson? A I can answer that in the hypothetical fashion by stating that there are well- documented markers as to what will trigger a stable anginal pattern in a patient with documented coronary artery disease being emotional provocation with physical exertion as a very common trigger for what we call the inciting event for a fatal result. If you give the clinical scenario that you have just described and ask me to mark it, use it as an index marker of likely cause and effect, it would be very high as a probable cause of the effect that occurred to him within the next 24 to 36 hours as the inciting or provocative cause. Q Within a reasonable degree of medical probability then, it could be stated that the struggle at the jail precipitated the cardiological event that resulted in E. L. Robinson's death? A It would be reasonable to say that this was the inciting event that caused an unstable setting to occur out of which a sudden death syndrome could arise. Having considered these remarks by Dr. Britt, it is concluded that within a reasonable degree of medical probability the encounter between the deceased and Brown was the precipitating event of the death of Captain Robinson. Dr. Bianco, who had knowledge of the Robinson case and the patient's death, felt that the overall condition of the patient, that is significant coronary artery disease and the fact of participation in a job which was much too stressful for his physical condition, was more likely the cause of death than the specific incident with Brown. That condition is made the more threatening, according to Dr. Bianco, due to the patient's habit of smoking, the patient's diabetes and high blood pressure and obesity. Dr. Bianco emphasized the effect of stress as a contributing factor in the patient's demise. However, in the final analysis, Dr. Bianco defers to Dr. Britt on the subject of the causation of Captain Robinson's death, and for that reason the opinion of Dr. Bianco is discounted and does not form the basis of fact determination on the question of the causation of the death of Captain Robinson.
The Issue The issues in this case, as set forth in the Amended Administrative Complaints in each respective case, are as follows: DOH Case No. 2010-01128/DOAH Case No. 11-5692 Count One. Whether Respondent, Jacinta Irene Gillis, M.D. (hereinafter referred to herein as "Dr. Gillis"), violated sections 458.331(1)(nn) and 458.326, Florida Statutes (2008 and 2009), by: Failing to diagnose patient M.G. with intractable pain prior to prescribing a controlled substance under Schedules II-V, as provided in section 893.03, from on or about December 19, 2008 through December 30, 2009; By inappropriately or excessively prescribing potentially lethal, highly abused, controlled substances, to wit: oxycodone, oxycontin, Percocet, and Valium, to M.G. without justification during the same time period; By inappropriately or excessively prescribing controlled substances to M.G. prior to exploring other treatment modalities or rehabilitation; and By failing to order a urine drug screen on M.G. at any time during her course of treatment. Count Two. Whether Dr. Gillis failed to keep legible medical records justifying the course of treatment for M.G. in one or more of the following ways: By failing to document justification for inappropriately or excessively prescribing controlled substances during her course of treatment; and By failing to document justification for not ordering a urine drug screen during the course of treatment. Count Three. Whether Dr. Gillis failed to meet the required standard of care in regards to her treatment of M.G. in one or more of the following ways: By inappropriately or excessively prescribing controlled substances without justification; By failing to confirm whether M.G. presented to a psychiatrist or psychologist after the initial referral by Dr. Gillis; By failing to order a urine drug screening of M.G. during her course of treatment; and By inappropriately or excessively prescribing controlled substances prior to exploring other modalities or rehabilitation. Count Four. Whether Dr. Gillis prescribed controlled substances, other than in the course of her professional practice, by prescribing controlled substances inappropriately or excessively in one or more of the following ways: By inappropriately or excessively prescribing controlled substances prior to exploring other treatment modalities or rehabilitation for M.G.; By inappropriately or excessively prescribing controlled substances without ordering a urine drug screening for M.G.; and By inappropriately or excessively prescribing controlled substances to M.G. without justification. DOH Case No. 2008-20661/DOAH Case No. 11-5961 Count One. Whether Dr. Gillis violated section 458.331(1)(nn), Florida Statutes (2008),1/ and Florida Administrative Code Rule 64B8-9.013(3) in one or more of the following ways: By failing to perform or document performing a complete physical exam of R.S.; By failing to explore or document exploring other treatment modalities or rehabilitation for R.S.; By failing to obtain or document obtaining a complete medical history of R.S.; By failing to document the nature or intensity of R.S.'s pain; By failing to document the current or past treatments of R.S.'s pain; By failing to document information on the effect of pain on R.S.'s physical or psychological function; By failing to develop or document developing a treatment plan for R.S.; and By failing to determine or document determining if there were any underlying or coexisting diseases or conditions for R.S. Count Two. Whether Dr. Gillis violated sections 458.331(1)(nn) and 458.326 in one or more of the following ways: By failing to diagnose R.S. with intractable pain prior to prescribing controlled substances, i.e., Percocet; By prescribing 90 tablets of Percocet 10/325 to R.S. without justification; By prescribing Percocet to R.S. without exploring other treatment modalities or rehabilitation; and By inappropriately prescribing Percocet to R.S. after R.S. reported that he was not currently being treated for pain. Count Three. Whether Dr. Gillis failed to keep legible medical records justifying the course of treatment for R.S. in one or more of the following ways: By failing to document justification for prescribing Percocet to R.S.; By failing to document a complete physical examination of R.S. prior to prescribing Percocet; By failing to document a complete medical history of R.S. prior to prescribing a controlled substance; By failing to document a urine screen on R.S.; and By failing to document a diagnosis of intractable pain for R.S. Count Four. Whether Dr. Gillis violated sections 458.331(1)(nn) and 458.326 in one or more of the following ways: By failing to perform or document performing a complete physical examination of D.H. on either of two visits; By failing to obtain or document obtaining a complete medical history on D.H.; By failing to explore or document exploring other treatment modalities or rehabilitation for D.H.; By failing to document the nature or intensity of D.H.'s pain; By failing to document the current or past treatments of D.H.'s pain; By failing to document information on the effect of pain on D.H.'s physical or psychological function; By failing to develop or document a treatment plan for D.H.; and By failing to determine or document determining if there were any underlying or coexisting diseases or conditions for D.H. Count Five. Whether Dr. Gillis violated sections 458.331(1)(nn) and 458.326 in one or more of the following ways: By failing to diagnose D.H. with intractable pain prior to prescribing a controlled substance, i.e., oxycodone; By prescribing 120 tablets of 30 mg oxycodone without justification; By prescribing 120 tablets of 30 mg oxycodone prior to exploring other treatment modalities or rehabilitation for D.H.; and By prescribing oxycodone to D.H. after D.H. reported that he was not experiencing any pain. Count Six. Whether Dr. Gillis failed to keep legible medical records justifying the course of treatment for D.H. in one or more of the following ways: By failing to document justification for prescribing 120 tablets of 30 mg oxycodone; By failing to document a complete physical examination of D.H. prior to prescribing a controlled substance; By failing to document a complete medical history of D.H.; By failing to document urine drug screening of D.H. prior to prescribing a controlled substance; and By failing to document a diagnosis of intractable pain for D.H. prior to prescribing a controlled substance.
Findings Of Fact The Department is the state agency having responsibility for monitoring health care professionals, including medical doctors. Dr. Gillis is a medical doctor licensed in Florida, North Carolina, and Iowa. She is not board-certified in any area of medicine, but claims to be "eligible" for board-certification in the field of internal medicine. Dr. Gillis received her medical degree from Meharry Medical College in Nashville, Tennessee, in 1997. She completed her internal medicine residency in 2003. Her medical career includes the following places of employment: Medical director/staff physician at Tennessee prison for women: March-August 2003; Hospitalist at Hilton Head Regional Medical Center: August 2003-February 2004; Pain management "specialist" in Atlanta, Georgia: March-September 2004; Staff physician for Illinois Correctional Facilities: September 2004-January 2005; Pain specialist/physician in Rock Island, Illinois: March-September 2005; Hospitalist at Brommen Medical Center in Bloomington, Illinois: May-August 2005; Hospitalist at Horizon Medical Center in Dixon, Tennessee: September 2005-January 2006; Pain specialist for National Health Services Clinic in Nashville, Tennessee: June-August 2006; Hospitalist at Kedlic Medical Center in Richland, Washington: September 2006-January 2007; Hospitalist at Auburn Regional Medical Center in Auburn, Washington: January-June 2007; Hospitalist at Mercy Medical Center in Sioux City, Iowa: July-August 2007; Hospitalist at Albermarle Medical Center in Elizabeth City, North Carolina: September-December 2007; Hospitalist at National Medical Affiliates in Punta Gorda, Florida: January-July 2008; Pain management specialist at UR Medical Clinic in St. Petersburg, Florida: July-November, 2008; and Pain management specialist at Dollar Medical Clinic in St. Petersburg, Florida: January 2009-October 2010. The Department is pursuing sanctions against Dr. Gillis based on her provision of medical care to three patients: D.H., and M.G. Both D.H. and R.S. are pseudonyms used by Deputies Negersmith and Johnson, respectively, as part of an undercover investigation of the clinic where Dr. Gillis was working in 2008. Their initials are used throughout this order for continuity, because all of the patient records and other evidence used those initials, rather than patient names. M.G. was a bona fide patient of Dr. Gillis's while she was operating another clinic in 2009-2010. In 2008, Dr. Gillis worked at a clinic operated by UR Medical Group, Inc., located in Pinellas Park, Florida. The clinic (referred to herein as the "UR Clinic") was owned by Renee Demasso, a non-physician. Dr. Gillis was the only medical doctor on staff at the clinic when she worked there. Another employee at the clinic was Quinton Knight, a large African- American male, who served as the office receptionist. The clinic had a "recruiter" named Jason Norris.2/ A recruiter is a person hired by the clinic to find new patients for the clinic's medical staff, i.e., for Dr. Gillis. On August 4, 2008, Negersmith, posing as D.H., was escorted to the UR Clinic by Norris. Upon arrival, he was given a patient information sheet to fill out. Norris directed him to write "severe lower back pain" on the sheet as the purpose of the visit. D.H. filled out the sheet, providing the following information: His pseudonym, address and contact information; His gender, marital status, height and weight; A fake social security number and date of birth; A fake driver's license number; His supposed occupation, i.e., a lineman for a private employer; A purported ailment, i.e., "severe lower back pain, weakness in knees" as the purpose for his visit; No insurance information; Neck/back pain and headaches as his medical history; A signature and date. All of the information provided was, of course, false. That is, D.H. was a fictitious name for a person pretending to be a patient. After filling out the form, D.H. discussed with Norris the cost of seeing the doctor. Norris said it would be a $350 charge. After approximately 45 minutes, D.H. was escorted to another waiting area, a vestibule separate from the main waiting area. After a short wait of five to ten minutes, D.H. was shown into an examination room where he met Dr. Gillis. D.H. was told to weigh himself on a floor scale and told Dr. Gillis his weight, 264 pounds. She then took his blood pressure which was 140/80. Dr. Gillis told D.H. that he might want to take some medication to lower his blood pressure. Dr. Gillis inquired as to the history of his present illness. According to the History and Physical Form (referred to herein as the patient chart) filled out by Dr. Gillis as she talked with the patient, D.H. said he had no pain (zero on a one-to-ten scale). Dr. Gillis wrote that D.H. "has difficulty explaining what he is really feeling" and that D.H. said muscle relaxers do not work for him. D.H. then told Dr. Gillis that oxycodone helps him to relax. Dr. Gillis then had D.H. perform three simple tasks: walking a short distance on his toes, walking on his heels, and raising his arms above his head. D.H. walked as directed, but he could not raise his arms higher than shoulder height because he was concealing a firearm in his waistband and raising his arms any higher would have revealed the weapon.3/ So he raised his arms up to shoulder height and then lowered them. D.H. cannot remember whether Dr. Gillis asked him why he could not raise his arms higher. Her notations on the patient chart indicate only that D.H. has less strength in his right foot (leg) and less range of motion in his left arm. At the conclusion of the examination, Dr. Gillis listed "chronic back and neck problems, chronic pain symptoms, non-specific" as the assessment and treatment plan for D.H. The lower left corner of the patient chart has an indication saying "needs records." D.H. purposefully avoided using the word "pain" throughout his examination. The only mention of pain was on the intake sheet he filled out, where he checked a box entitled neck/back pain. D.H. told Dr. Gillis that oxycodone helped him relax. She did not inquire as to whether he was taking any other medications or suggest any other modalities or treatment with D.H. After the examination, D.H. went back to the front office where he received a prescription for 120 tablets of 30 mg oxycodone and for 90 tablets of 600 mg Motrin. He handed Norris $350 in cash, which Norris then gave to Knight. No receipt was provided for the payment. D.H. then went to a local pharmacy and had the prescription filled. Pursuant to prior arrangements, he gave 60 of the oxycodone tablets to Norris for sale on the street.4/ The remaining tablets were placed into locked storage. Norris did not know D.H. was a police officer, of course. On August 27, 2008 (23 days later), D.H. appeared at the UR Clinic again. This time he was accompanied by Deputy Johnson who was posing as patient R.S. The deputies arrived at the clinic and looked for Norris, who was usually hanging around the parking lot. However, Norris was not there, and the deputies could not reach him via telephone, so they decided to go into the clinic anyway and see if they could obtain additional drugs. When D.H. and R.S. came into the clinic without Norris accompanying them, Knight became very upset and agitated. D.H. told Knight that Norris had recently changed his cell phone number, and it was not possible to contact him right then. R.S. started to walk out of the office, but Knight called him back and asked him for $350 and a copy of his identification. Knight then gave R.S. a patient information sheet to fill out. D.H. was not asked to fill out any paperwork at that time. D.H. was then escorted to the examination room where he saw Dr. Gillis again. No tests or physical examination were conducted. The only thing Dr. Gillis asked D.H. was whether he had brought his medical records with him. D.H. told her he had not had time to get them from his prior doctor yet. Dr. Gillis instructed D.H. not to come back to the clinic without his medical records. At the foot of the chart, Dr. Gillis wrote "Dr. Rew, family doctor; 2 weeks records; brought in personally." The note was not explained by Dr. Gillis. The patient chart filled out by Dr. Gillis on the second visit was extremely abbreviated in content. Under chief complaint, Dr. Gillis wrote, "patient states treatment plan is working; no complaints." The chart contains his vital signs: pulse of 142/80 and weight of 268 pounds. The history of present illness section of the form says only that D.H has a zero out of ten level of pain with treatment. She noted that has "no changes from prior testing" and added a note to "refill meds." The assessment and treatment plan section says "chronic back and neck problem." According to D.H., he never mentioned any problem to Dr. Gillis. Dr. Gillis did not inquire as to whether D.H. was currently taking any medications, but wrote, "oxycodone #120" and "Motrin 600 #90" on the current medications section of the chart. There was no physical examination of any kind performed on this visit. D.H. then went out to the office and got his prescription for 120 tablets of 30 mg oxycodone. Dr. Gillis never asked him whether he had taken all of the prior prescription, nor did she discuss pain with him. As part of his cover, D.H. intentionally avoided the use of the word "pain" when talking to Dr. Gillis. Meanwhile, R.S. completed his patient information sheet, providing the following information: His pseudonym, address and contact information; His gender, marital status, height and weight; A fake social security number and date of birth; A fake driver's license number; His occupation (carpenter work) and employer (unemployed); Purpose of visit, which D.H. listed as "stiffness in both shoulders"; No auto accident involved and no insurance available; Medical history options of high blood pressure and neck/back pain were checked in the list of various diseases and conditions listed on the sheet; An allergy to Keflex; Referred to clinic by a friend. R.S. was then taken back to an examination room where he met Dr. Gillis. He, too, contrived not to mention the word pain in his conversations with Dr. Gillis. He simply said he had a stiff shoulder. Dr. Gillis took his vital signs and had R.S. do the same physical tests that D.H. had performed in his first visit. remembers Dr. Gillis listening to his chest with a stethoscope and then examining his shoulder. The patient chart filled out by Dr. Gillis during R.S.'s visit contained the following information: "Chief complaint--Self employed; carpentry; history of surgery on back, shoulder problems one year ago; surgery and thus pain; no history of pain management." She correctly noted that R.S. was not currently on any medications. Dr. Gillis's assessment and treatment plan for R.S. was listed on the chart as chronic shoulder pain. There is no explanation for that notation. At the bottom corner of the chart, Dr. Gillis wrote "MRI of neck/shoulder; Dr. Wood, Pinellas County Orthopedic." That notation was not explained further by Dr. Gillis. R.S. went back to the front office where he was handed a prescription for Percocet 10/325, even though he never asked for medication. The Percocet was at the maximum strength (10 mg) for oxycodone content for that medication. R.S. then left the office, identified photographs of Dr. Gillis and Knight for his superiors and had no further involvement with the investigation. The testimony of Negersmith and Johnson as to their undercover actions was credible. Each of them had a clear and unambiguous memory of the events and did not appear to have any prejudices or ill intent that might negatively affect their testimony. The truth and veracity of their statements is accepted. At some point in time after the August 27, 2008, visit, the PCSO decided they had enough evidence to prosecute the UR Clinic as a "pill mill." As part of that prosecution, Dr. Gillis was pulled over in a traffic stop one day as she was leaving the clinic. After detaining her and explaining the charges that were being filed, the deputies advised Dr. Gillis to retain all patient records for patients she had been treating at the clinic. Later, Dr. Gillis cooperated with the sheriff's office and provided sets of original patient records to them. Dr. Gillis thereafter left her employment with the UR clinic and opened her own clinic. Patient M.G. presented to Dr. Gillis at her new place of employment, Dollar Medical Clinic, on December 19, 2008. Dr. Gillis was the owner and operator of this new clinic. M.G. filled out a patient information sheet which garnered the following information about him: Name, address and contact information; Marital status (married), and emergency contact information; Height, weight, and date of birth; Purpose of visit, listed as "refill on meds, follow-up on surgery." Auto accident on November 17, 2007; Insurance company information; and Medical history of neck/back pain, headaches, and arthritis. M.G. was then examined by Dr. Gillis. She filled out a patient chart for him that listed a history of surgery and treatments for pain. The patient chart lists Dr. Spuza and Dr. Nucci as physicians from whom M.G. had received care in the past. The patient chart noted that M.G. needed to be referred to a psychiatrist or psychologist as soon as possible. There was also a note indicating that M.G.'s MRI needed to be confirmed. Then there was a note written by Dr. Gillis saying "[p]atient is not going to be patient." There was no explanation as to what that note meant. The assessment and plan of treatment was then listed as "pain dependent" (although the writing on the patient chart is not very clear, and no testimony was elicited from Dr. Gillis to confirm what was written) and that the patient was advised about decreasing his pain medications. M.G. complained of pain at an eight on the one to ten scale with "treatment with oxycodone times four," presumably meaning four times per day. Upon completion of her examination of M.G., Dr. Gillis wrote him a prescription for 240 tablets of 30 mg oxycodone, 120 tablets of 40 mg oxycontin, 30 tablets of 10 mg valium, and 60 tablets of 500 mg naprosyn. According to the prescription, M.G. was supposed to take one of the oxycodone tablets every three hours, 24 hours per day, i.e., eight times per day. That was in addition to the oxycontin, which was to be taken every six hours. According to Dr. Gerber, "no pain doctor in the country would write a prescription like that." It would also be almost impossible for a patient to take all of those medications as prescribed. Approximately one month later, on January 16, 2009, M.G. returned to Dr. Gillis for the first of several follow-up visits. The patient chart filled out by Dr. Gillis that day indicates the chief complaint by M.G. to be "pain, top of buttocks radiating down leg to foot on left side." M.G. said his pain level was an eight out of ten with his medications. Dr. Gillis wrote a note to refill the medications and that there were "no acute changes" to M.G.'s condition. This time, the assessment and treatment plan was abbreviated as "A/P." This was the beginning of very cursory notes in the patient charts for M.G. The notes on the chart became shorter and less detailed as time went on. The "A/P" was listed as chronic neck pain and dental issues. Dr. Gillis then wrote prescriptions for 240 more oxycodone tablets, 120 more oxycontin tablets, 30 valium and 30 amoxicillin tablets. There is no record in the chart as to why the amoxicillin was added to M.G.'s medication regimen. There is no justification for providing essentially the same regimen of treatment when the patient was complaining of pain at a level of eight out of ten. M.G. came back for another follow-up on February 13, 2009. At that visit, Dr. Gillis charted the chief complaint as "thorac lumbar surgery [indecipherable] months ago." Again M.G. complained of a level of pain at eight out of ten when using his medications. Dr. Gillis noted her intent to refill the medications and that there were no acute changes in M.G.'s condition. His "A/P" was listed as chronic back pain. A prescription for the same medications, same doses, and same amounts as the previous visit was issued. M.G. returned on March 12, 2009, for a follow-up visit. The chief complaint at that time was "patient has difficulty [indecipherable]." Under history of present illness, Dr. Gillis wrote that M.G. has no history of pain prior to surgery and that he gets no relief from valium or Soma. There is no prescription for Soma in the records, so M.G. must have been getting that drug from some other source. There is no indication Dr. Gillis inquired as to where he got the medication, whether he was on any other medications, or how often he was taking the medication. Dr. Gillis again wrote that there were no acute changes in M.G.'s condition although he did not present with the same chief complaint. The "A/P" appears to be chronic back pain, although the writing is not clear. Prescriptions for oxycodone and oxycontin were renewed as before, and a prescription for Ambien was added. The valium prescription was not refilled. No explanation for the change in the drug regimen was provided by Dr. Gillis. On April 4, 2009, M.G. returned for another visit. This time his chief complaint was that he ran out of medications and had a seizure. There is no indication that Dr. Gillis inquired as to the type of seizure or whether M.G. had received any treatment for it. There is no evidence as to when M.G. ran out of his medications or how many pills he had taken since the prior visit. M.G. still complained of pain at a level of eight out of ten with his treatment. There is no indication of his pain level after he ran out of his medications. The "A/P" was listed as chronic back pain. The prescriptions written by Dr. Gillis for this visit were the same as the previous visit. For his next visit, May 12, 2009, there is no chief complaint listed on the patient chart. Dr. Gillis again wrote that there was no acute change in the patient's condition, that M.G.'s pain level was 6.5 out of ten with his treatment, and that the prescriptions should be refilled. The same oxycodone and oxycontin prescriptions (240 and 120 tablets, respectively) were written, along with the Ambien prescription. M.G. visited Dr. Gillis again on June 12, 2009. The chief complaint for that visit was low back pain caused by tripping over a toy car at his home. M.G.'s pulse and weight were measured, and there was a note on the chart that M.G. had "CBP" (which is presumably chronic back pain) and a toothache. A notation at the bottom of the chart said "25$," but is not explained. Dr. Gillis prescribed the same regimen of 240 pills of oxycodone and 120 pills of oxycontin. In the current medications section of the chart, Dr. Gillis wrote "Meds." That notation was not explained. As in each of the previous visits, Dr. Gillis did not perform a urine screen to determine whether M.G. had been taking the medications or not. M.G. came back to see Dr. Gillis on July 6, 2009. The chart for that visit says the chief complaint by M.G. was a surgical procedure called percantaneous distectomy and that M.G. "had care since the procedure." There is also a note that indicates "5 procedures," but the note is not explained. M.G. reported his pain level as five out of ten, with medications, and ten out of ten, without. Dr. Gillis prescribed the same, oxycodone and oxycontin medications as in the previous visits. There is no explanation as to why the medication levels were the same, even though M.G. was reporting less pain than in prior visits and had undergone surgery during the interim. M.G.'s next visit to Dr. Gillis was on August 5, 2009. His chief complaint on that day is essentially unreadable, and Dr. Gerber could not decipher it at all. There is a mention of Xanax in the chart, but its purpose is not explained. M.G.'s pain level is listed as six out of ten, with medications, ten out of ten, without. That is close to the pain levels described in the prior visit. However, without some sort of physical or functional exam or a psychological assessment, it was impossible to determine whether M.G. was functioning, no matter what his pain level. Dr. Gillis refilled the oxycodone and oxycontin prescriptions and added a prescription for ten tablets of Percocet 1/650, a minimal and almost useless dose. The "A/P" listed chronic lower back pain and seizure activities, but there was no discussion as to what seizures occurred or when. On September 9, 2009, M.G. presented with a complaint of a stiff neck. The chart mentioned an MRI, but did not explain or elaborate on it. The assessment of the patient was listed as "Ch LBP" (presumably chronic lower back pain), but there was no explanation of the relationship between the assessment and the presenting problem. There was no documentation of care in treatment on the patient chart. Dr. Gillis refilled the oxycodone and oxycontin and also added a prescription for Mobic, an anti-inflammatory medication. M.G. came back to visit Dr. Gillis on October 7, 2009. The chief complaint said M.G. had good and bad days and that the last surgery did not have good results. His pain level was down to six out of ten, with medications, and ten out of ten, without. Chronic lower back pain continues to be the assessment and treatment plan notation. Nonetheless, he was prescribed the exact same levels of oxycodone and oxycontin as all of the other visits. On November 4, 2009, M.G. returned to see Dr. Gillis. A different patient chart form was utilized by Dr. Gillis at that visit. The form includes a question, "Hello, how are you doing?" to which M.G. responded, "Terrible." M.G. said the ongoing treatment was working, but that he was not sleeping better. His pain level on that day was back up to seven out of ten, with medications. In her notes, Dr. Gillis said to "refill with adjustment with valium." There is no explanation as to why valium would be added to M.G.'s medication regimen. M.G. then visited Dr. Gillis on December 2, 2009. In response to the question about how he was feeling, M.G. said he was "planning for surgery; not doing good." He said the treatment was working and he was sleeping better. The assessment update on the chart said chronic lower back pain with exacerbations. The exacerbations were not explained. M.G. was prescribed the same medications as the previous visit. M.G.'s thirteenth and last monthly visit to Dr. Gillis occurred on December 20, 2009. When asked how he felt, M.G. answered "Alright." He said the treatment was working, but that some of his medications had been stolen. He reported not having oxycodone for nine days and oxycontin for seven days (or, possibly, not having nine oxycodone tablets or seven oxycontin tablets, the record is not clear.) He also said he had taken his medications that very day, but there was no indication in the record as to which medications he was talking about. He said his lower back pain was at a level of seven to eight on that day. Dr. Gillis did not inquire about the inconsistent statements and refilled his prescriptions anyway. The patient records for M.G. do not discuss whether he was paying for the cost of the prescriptions out-of-pocket or whether insurance was covering some of the cost. The cost of the medications would have been approximately $600.00 per month. It is clear that M.G. presented as a complex patient and was obviously receiving medical care elsewhere at the same time he was being treated by Dr. Gillis. He was apparently receiving medications from other sources at the same time Dr. Gillis was treating him. Dr. Gillis was at least somewhat aware of M.G.'s other medical care, but she never did monitoring or screening of M.G. that would have given her insight into how her treatment plan was interacting with M.G.'s other treatment. And, once Dr. Gillis saw that her treatment was not alleviating M.G.'s pain, she should have referred him to a board-certified pain management specialist. Dr. Marc Gerber was accepted at final hearing as an expert witness for the Department. Dr. Gerber is a board- certified pain management specialist who currently treats patients with pain management issues. Dr. Gerber's testimony was clear, concise, and credible. He did not appear to have any prejudice against Dr. Gillis as a person, but was very concerned about how she was practicing medicine. His testimony forms the basis for the following findings of fact. Relying upon the patient charts and patient information sheets provided by Dr. Gillis, there does not appear to have been a diagnosis of intractable pain for M.G. Intractable pain is pain for which, in the generally accepted course of medical practice, the cause cannot be removed and otherwise treated. There does not appear to have been an appropriate and complete physical examination of M.G. performed by Dr. Gillis. The oxycodone and oxycontin prescriptions for M.G. over a 13-month period are excessive. Despite her initial note wherein she advised M.G. that his medication levels must be decreased, Dr. Gillis continued the same regimen of oxycodone and oxycontin throughout M.G.'s treatment. There is no indication the medications were working, as M.G. continued to complain about pain for the entire 13 months he was under Dr. Gillis' care. Other than adding other medications, Valium, Mobic, Percocet, and Ambien for very brief periods, there was no change to M.G.'s prescription regimen. The patient charts for the visits to Dr. Gillis do not contain any justification for why the medications were prescribed in those quantities. The amount of oxycodone and oxycontin prescribed was, in itself, excessive. According to the prescriptions, M.G. was supposed to take one oxycontin every six hours. Oxycontin is a time-release medication that should only be taken once every 12 hours at most. M.G. was prescribed eight tablets of 30 mg oxycodone per day, i.e., one every four hours or two every eight hours--in addition to the oxycontin. The totality of those medications could be lethal. There are no indications in the patient charts that Dr. Gillis was taking vital signs and doing a physical evaluation of M.G. at every visit. Nonetheless, she continued to prescribe the high dosages of potentially lethal medications. Most importantly, Dr. Gillis never had a urine drug screen done on M.G. Such a test would have revealed whether M.G. was actually taking the drugs he was prescribed. It would have provided a determination of the level of drugs or other substances in M.G.'s body and then how the drugs were affecting him. A urine drug screen done at the time of M.G.'s earliest visit would have established a baseline for measuring the effectiveness and utility of future prescriptions. For a patient such as M.G., with a history of surgeries, a need for psychiatric evaluation, and a propensity to take large amounts of drugs, a urine drug screen would have been an essential element of the periodic review required for all such patients. Dr. Gillis erroneously stated that she had rejected and R.S. as patients after their first and second visits, respectively. The evidence shows that both "patients" voluntarily stopped visiting the clinic after completing their undercover work. Neither of the patients was told by Dr. Gillis not to return (although D.H. was told not to come back without bringing his medical records). Dr. Gillis did not testify at final hearing and did not provide any credible rebuttal to the facts asserted by the Department's witnesses. Dr. Gillis did demonstrate an understanding of the practice of medicine through her questioning of the Department's medical expert, but her treatment of patients R.S., D.H. and M.G. was deficient. The Department did not specifically allege, nor was there any evidence to support that Dr. Gillis intentionally practiced medicine in an inappropriate manner. However, her treatment of the patients in question indicates serious shortcomings in her ability to effectively and appropriately manage pain for her patients. Furthermore, Dr. Gillis represented herself at final hearing and, without assistance of counsel, was not able to effectively present a strong defense to the Department's allegations. Although she was given ample opportunity to testify concerning her care and treatment of the patients at issue, she declined to do so. Although the Department's perception of Dr. Gillis' treatment of D.H., R.S. and M.G. was based on its expert's review of medical records only, Dr. Gillis's refusal to testify left Dr. Gerber's perception as the only reliable source of information.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Health suspending the license of Respondent, Jacinta Irene Gillis, M.D., until such time as Dr. Gillis can demonstrate competency in the practice of medicine, especially as it relates to pain management, to the satisfaction of the Board of Medicine. It is further RECOMMENDED that the final order assess the cost of investigating and prosecuting this case and that payment of such costs be a condition precedent to ending the suspension of Dr. Gillis's license to practice. DONE AND ENTERED this 3rd day of February, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 2012.
The Issue Whether Petitioner, the surviving spouse of Ralph Timmerman, is entitled to receive "in line of duty" death benefits?
Findings Of Fact Petitioner is the surviving spouse of Ralph Timmerman, who died on January 23, 1998, at 48 years of age. Petitioner and Mr. Timmerman had been married since September 5, 1981. They had two daughters, who are now four and thirteen years of age. Mr. Timmerman was a member of the Florida Retirement System. At the time of his death, Mr. Timmerman was employed by Martin County as the Assistant Building Maintenance Superintendent. Mr. Timmerman had been Martin County's Building Maintenance Superintendent until December of 1990, when he suffered a heart attack and had five-vessel by-pass surgery. Following his return to work, he was reassigned to the position of Assistant Building Maintenance Superintendent. This was a new supervisory position that had been specifically created for him. By design, it was less demanding than the Building Maintenance Superintendent position he had formerly held. One of Mr. Timmerman's former subordinates, Harold Markey, was tapped to succeed Mr. Timmerman as the Building Maintenance Superintendent, a decision that Mr. Timmerman supported. As the Assistant Building Maintenance Superintendent, Mr. Timmerman worked under Mr. Markey's supervision. Mr. Markey made an effort to avoid assigning Mr. Timmerman any tasks that, given Mr. Timmerman's history of heart problems, might jeopardize Mr. Timmerman's health. Mr. Timmerman's primary duties were to directly supervise the building maintenance staff and to deal with contractors hired by Martin County to perform building maintenance and repair work. Mr. Markey did not ask Mr. Timmerman to attend or make presentations at Martin County Board of County Commissioners meetings because he knew that Mr. Timmerman would feel uncomfortable performing these duties. Neither did Mr. Markey require Mr. Timmerman to do any physically demanding work. In fact, whenever, he saw Mr. Timmerman engaged in such physical labor, he would intervene and instruct Mr. Timmerman to stop. Whenever Mr. Timmerman indicated during the course of the work day that he was tired or not feeling well, Mr. Markey allowed Mr. Timmerman to leave work and go home.7 Notwithstanding these accommodations made for him, Mr. Timmerman, on a number of occasions, complained to Mr. Markey about (what Mr. Timmerman perceived to be) Mr. Markey's lack of understanding and compassion as a supervisor. He expressed these views in a loud and argumentative manner.8 As a general rule, following these outbursts, Mr. Timmerman apologized to Mr. Markey for the manner in which he had acted. It was during such an outburst on January 23, 1998, at his work site and during his normal working hours, that Mr. Timmerman suffered cardiac arrest and subsequently died. The day before, Mr. Timmerman and members of his staff had attended a meeting with Mr. Markey. Among the subjects discussed at the meeting was the response of Mr. Timmerman and his staff to a water main break that had occurred at the Martin County-operated library in Hobe Sound on January 20, 1998. The discussion concerning this subject lasted approximately 15 to 20 minutes. Mr. Markey was not at work on January 20, 1998, and therefore it was Mr. Timmerman's responsibility to coordinate the efforts to repair the break and remedy any water damage that had occurred at the library. Mr. Timmerman was notified of the water main break by Teresa Van Cardo, a Martin County employee occupying the position of Administrator Coordinator II for General Services. After some time had passed, Ms. Van Cardo became concerned that Mr. Timmerman had not yet arrived at the library. She therefore telephoned Mr. Markey at home to express her concerns about Mr. Timmerman's delay in responding to the scene. (Huey Cummings, Martin County's lead plumber, however, was on the scene and assessing the situation.) After speaking with Ms. Van Cardo, Mr. Markey telephoned Mr. Timmerman and told him that "he needed to get to the site and he needed to make an assessment of it." Mr. Timmerman replied that Huey Cummings was already at the library. When Mr. Timmerman came home from work that day he told Petitioner about what had happened at the library and that he was "very pleased at the way the whole situation was handled" by his staff. At the January 22, 1998, staff meeting (which was a regularly scheduled meeting), Mr. Markey voiced his criticism of the manner in which the staff had responded to the water main break at the library two days before,9 and he indicated what improvements the staff needed to make in responding to similar incidents in the future. It should not be necessary, he told his subordinates at the meeting, for anyone to have to bother him at home for guidance in dealing with a situation such as the one that arose at the library. At least one of the employees at the meeting (Patti Smith) could sense (based upon her observations of Mr. Timmerman's body movements as Mr. Markey spoke) that Mr. Markey's comments upset Mr. Timmerman. Indeed, Mr. Timmerman was upset. He felt that Mr. Markey's criticism was unwarranted, and, after Mr. Markey had voiced his criticism, Mr. Timmerman told Mr. Markey and the others at the meeting that, in his opinion, "everybody responded exceptionally." That evening, when he arrived home from work, Mr. Timmerman was still upset about the negative comments that Mr. Markey had made at the staff meeting earlier that day. Mr. Timmerman shared with Petitioner what Mr. Markey had said at the meeting and expressed his disappointment that Mr. Markey had criticized, rather than praised, his subordinates. The following morning (January 23, 1998), Mr. Timmerman woke up at 5:30 a.m. He ate a small breakfast and, after spending time with his youngest daughter, left for work at 6:30 a.m. He appeared to be "very calm" when he left. Mr. Timmerman arrived at work at or about 7:00 a.m. At around 7:30 a.m., Mr. Markey, at the request of another employee, went to Mr. Timmerman's office (which was located in a different building than Mr. Markey's office) and requested that Mr. Timmerman not park his assigned Martin County- vehicle in the staff parking lot (which was reserved for personal vehicles). Mr. Timmerman reacted with displeasure to the request. He told Mr. Markey, "This is bull crap," or at least used words to that effect. Mr. Markey repeated his request and then left Mr. Timmerman's office. Shortly thereafter, Mr. Markey discovered that two expensive vacuum cleaners were missing from the storage area where they were supposed to be kept. A few months earlier, Mr. Markey had instructed Mr. Timmerman to put up a "sign-out" sheet outside the storage area for employees to sign whenever they removed an item from the storage area. After discovering that the vacuum cleaners were missing from the storage area, Mr. Markey looked for, but did not find, such a "sign-out" sheet. When he returned to the building where Mr. Timmerman's office was located, Mr. Markey confronted Mr. Timmerman and asked him where the vacuum cleaners were. Mr. Timmerman told Mr. Markey that it was not his (Mr. Timmerman's) day to watch the vacuum cleaners and that he did not know where they were. Mr. Markey then said to Mr. Timmerman, "We need to get them located today," to which Mr. Timmerman responded, "Well, later on today, I will get somebody on it and we'll try to find them." Mr. Markey was not satisfied with Mr. Timmerman's response. He advised Mr. Timmerman that he wanted Mr. Timmerman, not someone else, to look for the vacuum cleaners and that he wanted Mr. Timmerman to look for them that morning, not later in the day. He also told Mr. Timmerman that he expected Mr. Timmerman to place a "sign-out" sheet outside the storage area before the morning was over. Mr. Markey then walked away and left the building. When Mr. Markey was approximately 30 feet away, Mr. Timmerman yelled out to him, "What do you have up your ass today?" Mr. Markey stopped and replied, "Obviously you." Mr. Markey then continued walking and returned to his office. Approximately four or five minutes later, an obviously very upset Mr. Timmerman stormed into Mr. Markey's office, yelling and screaming that Mr. Markey mistreated his staff and lacked understanding and compassion. Mr. Markey told Mr. Timmerman to calm down so that they could discuss what was bothering Mr. Timmerman. Mr. Timmerman, however, continued to yell and scream. In fact, if anything, he became louder. Mr. Markey made further attempts to persuade Mr. Timmerman to sit down and talk calmly about his grievances, but these efforts were to no avail. During his exchange with Mr. Timmerman, Mr. Markey, like Mr. Timmerman, raised his voice. Mr. Timmerman left Mr. Markey's office in a huff. As he was walking down the hallway, he shouted back to Mr. Markey, "I take-up for you all of the time with the guys," and then added, "I treat you like a F-en prince, and this is what I get." Mr. Timmerman then went into another employee's (Sharon Barnes') office and started pacing back and forth. His face was red and he was visibly agitated. Ms. Barnes told Mr. Timmerman to calm down. He replied to her that it was "too late." Mr. Timmerman thereupon returned to Mr. Markey's office and continued his ranting. Mr. Markey shouted back at Mr. Timmerman. When Mr. Markey told Mr. Timmerman to "sit down," Mr. Timmerman said that he "couldn't" and then turned to leave. Mr. Markey asked where Mr. Timmerman was going. Mr. Timmerman responded that he was going to take a ride in his truck. As Mr. Timmerman exited Mr. Markey's office and walked toward his truck, Mr. Markey followed behind him. Mr. Markey believed that, given Mr. Timmerman's agitated emotional state, Mr. Timmerman was in no condition to drive. He urged Mr. Timmerman not to go to his truck. Mr. Markey was ultimately able to convince Mr. Timmerman to sit down on a bench outside the building where Mr. Markey's office was located. Mr. Timmerman remained on the bench, however, for just a couple of seconds before getting up and walking away. As Mr. Timmerman walked away, he continued to yell and scream at Mr. Markey. Mr. Markey shouted back at Mr. Timmerman, repeating his plea that Mr. Timmerman not drive off in his truck. When Mr. Timmerman was approximately 20 feet from the bench, he started breathing heavily and leaned against a wall for support. Mr. Markey ran over to Mr. Timmerman to make sure that he did not fall. Mr. Markey again exhorted Mr. Timmerman to calm down. Mr. Timmerman, as he had done previously, told Mr. Markey that he "couldn't." Mr. Timmerman then collapsed in Mr. Markey's arms. After gently lowering Mr. Timmerman to the ground, Mr. Markey ran to Ms. Barnes' office window, which was approximately ten or 15 feet away. When he got Ms. Barnes' attention, he instructed her to "call 911." Paramedics subsequently arrived on the scene. They were unable to revive Mr. Timmerman. He was pronounced dead at 8:35 a.m. on January 23, 1998. An autopsy was performed the following day by Frederick Hobin, M.D., the Medical Examiner for the 19th Medical Examiner District of Florida. Dr. Hobin is a Florida-licensed physician, who is board-certified in anatomic, clinical, and forensic pathology. Following the completion of the autopsy, Dr. Hobin prepared an autopsy report, which contained the following findings and observations, among others (which the undersigned accepts as accurate): PATHOLOGIST'S OPINION MECHANISM OF DEATH: SUDDEN CARDIAC DEATH DUE TO ISCHEMIC CARDIOMYOPATHY CAUSE OF DEATH: OCCLUSIVE CORONARY ARTERIOSCLEROSIS MANNER OF DEATH: NATURAL . . . GROSS AUTOPSY PROTOCOL EXTERNAL EXAMINATION . . . INTERNAL EXAMINATION . . . CARDIOVASCULAR SYSTEM The heart weighs 680 grams. The increase in weight is attributed to biventricular hypertrophy. All of the chambers are markedly dilated. There is a dense gray scar throughout the posteroseptal myocardium. There are some focal areas of hyperemia in the inferior septum. The cardiac valves appear functionally intact. The coronary arteries have diffuse calcific occlusive arteriosclerosis. There is indication of a double remote bypass coronary graft procedure. There is some sclerosis of both of the grafts and one of the grafts appears to have been occluded by thrombus material throughout its entire length. The thrombus material appears remote in age and it is gray and friable. There is moderate arteriosclerosis of the aorta with some reduced elasticity. . . . FINDINGS AT GROSS AUTOPSY Arteriosclerotic cardiovascular disease. Occlusive coronary artery disease. Remote coronary artery bypass graft. Remote thrombosis of coronary artery graft. Ischemic cardiomyopathy. Healed posteroseptal myocardial infarction. . . . MICROSCOPIC EXAMINATION HEART There is marked hypertrophy of the myocardium as well as very extensive scarring. This is associated with sclerosis of the coronary artery bypass grafts and they are occluded by degenerated thrombus material. There appears to be minimal fibrosis of the mitral valve. Appended to Dr. Hobin's autopsy report were the written results of laboratory tests that had been conducted in conjunction with the autopsy. Such testing, according to the written results, revealed the presence of cannabinoids (cannabis metabolites) in Mr. Timmerman's blood.10 Although at the time of his death, Mr. Timmerman (as the autopsy reflected) was suffering from a chronic, degenerative, life-threatening cardiovascular disease that had evolved over a prolonged period of time, he was able to, and did in fact, lead a relatively normal life notwithstanding his disease. He was still able to work, and he continued his employment with Martin County11 until his death. Mr. Timmerman, however, because of his disease, was vulnerable to sudden cardiac death. Sudden cardiac death is a term the medical profession uses to indicate that a person has undergone a rapid, fatal deterioration as a result of an adverse cardiac event. In most, but not all, instances, the adverse cardiac event is an arrhythmia (as was the situation in Mr. Timmerman's death). Emotional stress and excitement can produce physiological changes that increase cardiac demand and consequently may precipitate an arrhythmia that leads to sudden cardiac death. Whether a particular incident or situation will produce such a result depends, not only on the individual's physical health, but on his or her emotional makeup as well. In the instant case, it appears, within a reasonable degree of medical probability, that work-related emotional distress (which manifested itself during the confrontations Mr. Timmerman had with Mr. Markey immediately preceding Mr. Timmerman's death) aggravated Mr. Timmerman's preexisting cardiovascular disease and thereby precipitated his demise.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Division of Retirement issue a final order finding that Petitioner is qualified to receive "in line of duty" death benefits from the account of her late husband, Ralph Timmerman. DONE AND ENTERED this 13th day of August, 1999, in Tallahassee, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1999.
The Issue The issue in this case is whether Petitioner should take license disciplinary action against Respondent based upon matters set forth in an Administrative Complaint filed on October 22, 1986 which alleges she violated Section 464.018(l)(f), Florida Satutes.
Findings Of Fact Respondent is currently licensed as a registered nurse in the State of Florida, with license number 68722-2. She was also licensed as a registered nurse, with the same license number on February 28, 1986. On February 28, 1986 Respondent was employed as a registered nurse at G. Pierce Wood Memorial Hospital in Arcadia, Florida. As one of her duties, she was assigned to transport a patient from Punta Gorda a Medical Center to G. Pierce Wood Memorial Hospital, a drive of between thirty and forty minutes. When Respondent was assigned to transport the patient from Punta Gorda Medical Center, she was informed by Elaine Snider, secretary at G. Pierce Wood Memorial Hospital, that the patient required oxygen therapy during the drive to G. Pierce Wood Memorial Hospital. In transporting the patient, Respondent failed to provide any oxygen therapy to the patient, although she knew that this patient required oxygen therapy. Respondent testified that her supervisor, Ruby Woodbine, ordered her to use a particular van, which she had never used before, to transport this patient. The van was not equipped to provide oxygen therapy. While on the way to Punta Gorda, Respondent discovered the van was not equipped to provide oxygen therapy. However, since the request to pick up the patient was "urgent," she determined it was more important to proceed to Punta Gorda and get the patient than to turn around and return to G. Pierce Wood for a properly equipped van. Respondent's actions resulted in the patient being transported for thirty or forty minutes without oxygen, contrary to the order of the patient's attending physician. Ruby Woodbine did not "order" Respondent to take the van without oxygen. In fact, Elaine Snider had contacted the transportation department at G. Pierce Wood Memorial Hospital and arranged for the van, but had failed to specify that the van must have oxygen. Snider then informed Respondent of the van she was to take, and Respondent failed to check that van before leaving to be sure it was properly equipped. Woodbine simply agreed with Respondent that she should use the van Snider had identified. By failing to check the van for necessary equipment and by proceeding to transport the patient without oxygen therapy contrary to physician's orders, Respondent did not conform to minimal standards of acceptable nursing practice. She should have obtained a properly equipped van, arranged for portable oxygen, or refused to accept the patient until arrangements could be made for oxygen. The discontinuation of oxygen is not a proper nursing function when the patient's physician has ordered oxygen therapy. This finding is based upon the consideration of all evidence received and particularly the testimony of Deborah Frank, who was accepted as an expert in the practice of nursing, including nursing practice standards.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order imposing a reprimand upon Respondent. DONE AND ENTERED this 6th day of April, 1987 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4736 Rulings on Petitioner's Proposed Findings of Fact: 1,2 Adopted in Finding of Fact 1. 3,4 Adopted in Finding of Fact 2. 5 Adopted in Findings of Fact 3, 6. 6 Adopted in Findings of Fact 4, 5, 7. 7 Adopted in Findings of Fact 4, 6. 8 Adopted in Finding of Fact 4. 9 Adopted in Finding of Fact 8. COPIES FURNISHED: Gary Beatty, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32399-0750 Sandra Ann Bacon 611 Sharon Circle Port Charlotte, Fl 33952 Judie Ritter Executive Director Department of Professional Regulation Board of Nursing Room 504, 111 East Coastline Dr. Jacksonville, Fl 32201 Van Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32399-0750
Findings Of Fact The decedent, James C. Daniels, was employed as a fire fighter with the Village of Miami Shores, Florida, in April of 1972. The Miami Shores Fire Department was subsequently assimilated by Metropolitan Dade County, Florida, and at the time of the decedent's death on July 20, 1976, he was employed by Dade County as a fire fighter/emergency medical technician. On November 4, 1975, the decedent received a physical examination which showed no evidence of heart disease, and an electrocardiogram, the results of which were within "normal" limits. The decedent had no history of heart disease or circulatory problems, did not drink, and began smoking only in 1974 or 975. At the time of his death, the decedent's customary work routine involved 24 hours on duty, from 7:00 a.m. to 7:00 a.m., followed by 48 hours off duty. The decedent's duties included answering emergency calls along with his partner in a rescue vehicle. These calls included such incidences as automobile accidents, fires, violent crimes involving injuries to persons, and various and sundry other emergency situations. Upon answering an emergency call, the decedent was required by his job to carry heavy equipment, sometimes weighing as much as 80 pounds, to the place where the injured person was located. On occasion, the decedent would transport injured persons from the scene to local hospitals. At the time of his death, the decedent appeared outwardly to be in good physical condition. In fact, he engaged in a regular program of physical exercise. During the approximately two months prior to his death, the decedent participated in a busy work schedule which often included numerous rescues, in addition to false alarms and other drills required of his unit. In fact, only four days prior to his death, the decedent and his partner during one twenty- four hour shift, were involved in 13 rescues and one building fire. During that day, the decedent worked for 24 straight hours, apparently without sleep. On July 19, 1976, at 7:00 a.m., the decedent began his last work shift prior to his death. During that day, the decedent's unit participated in two rescues and two drills. That evening, several of decedent's fellow workers noticed that he looked "bad", "tired" or "drawn out". During the night, decedent was observed getting out of bed from three to five times, and holding his left arm, left side or armpit. At 7:00 a.m. on July 20, 1976, the decedent went off duty and returned home. Upon returning home, he ate breakfast, and later washed down a new brick fireplace at his home. After showering, resting and eating a lunch, he joined several other men near his home whom he had agreed to help in pouring cement for some new construction. The decedent mentioned pains in his neck and shoulder to these men before the truck carrying the cement arrived. The decedent mentioned that he had been under a lot of tension and pressure as a result of the busy work schedule at the fire station. When the cement truck arrived, cement was poured into several wheelbarrows and several of the men, including the decedent, pushed the wheelbarrows to the rear of the structure on which they were working. It appears that the decedent pushed approximately four wheelbarrow loads of cement weighing about 75 pounds each to the rear of the structure. Approximately one-half hour elapsed during the time that the decedent was engaged in this activity. Soon thereafter, the decedent was observed to collapse and fall to the ground. He was given emergency medical treatment and transported to Palmetto General Hospital, where he was pronounced dead at 5:24 p.m. on July 20, 1976. An autopsy was performed on the deceased on July 21, 1976 by Dr. Peter L. Lardizabal, the Assistant Medical Examiner for Dade County, Florida. In pertinent part, the autopsy showed moderate arteriosclerosis of the aorta, and severe occlusive arteriosclerosis of the proximal third of the anterior descending coronary artery in which the lumen, or opening, through which the blood passes through the artery was hardly discernible. The remaining coronary arteries appeared unaffected by the arteriosclerosis. The decedent's certificate of death, which was also signed by Dr. Lardizabal, listed the immediate cause of death as acute myocardial infarction due to severe occlusive arteriosclerosis of the left coronary artery. Dr. Lardizabal performed the autopsy examination of the decedent by "gross" observation, that is, without the benefit of microscopic analysis. However, microscopic slides were made during the course of the autopsy which were subsequently examined by other physicians whose testimony is contained in the record of this proceeding. Findings contained in the autopsy report, together with an evaluation of the aforementioned microscopic slides, establish that the myocardial infarction suffered by the decedent occurred at least 24 hours, and possible as many as 48 hours, prior to the decedent's death. This conclusion is based upon the existence of heart muscle necrosis, or tissue death, which would not have been discernible had the decedent died immediately following a coronary occlusion. In fact, for a myocardial infarction to he "grossly" observable at autopsy, that is, without the benefit of microscopic examination, it appears from the record that such an infarction would have to occur a substantial period of time prior to the death of the remainder of the body. Otherwise, the actual necrosis of heart muscle tissue would not be susceptible to observation with the naked eye. Although it appears probable from the evidence that the decedent went into a type of cardiac arrhythmia called ventricular fibrillation which led to his death, the actual proximate cause of his death was the underlying myocardial infarction, which in turn was a result of arteriosclerosis which had virtually shut off the supply of blood to the affected area of his heart. Although the causes of arteriosclerosis are not presently known to A medical science, it appears clear from the record that acute myocardial infarctions can be caused by emotional or physical stress, and that the decedent's myocardial infarction was, in fact, caused by the stress and strain of his job as a fire fighter and emergency medical technician. In fact, it appears from the medical testimony in this proceeding that the decedent was having a heart attack which led to the myocardial infarction on the night of July 19, 1976, or in the early morning hours of July 20, 1976, while he was still on duty. It further appears that, although physical exertion, such as the pushing of the wheelbarrow loads of cement by the decedent, might act as a "triggering mechanism" for ventricular fibrillation, the decedent's activities on the afternoon of July 20, 1976, had very little to do with his death. The type of lesion present in the decedent's heart, which had occurred as much as 48 hours prior to his death, was of such magnitude that he would likely have died regardless of the type of physical activity in which he engaged on July 20, 1976. Petitioner, Dolores A. Daniels, is the surviving spouse of James C. Daniels.
The Issue Whether the Respondent Department complied with the pertinent statutes and rules when it amended and extended a certificate of need previously granted to the Intervenor, Bayonet Point Hospital, Inc., without notice to Petitioner, Port Richey Medical Center, Inc. The Petitioner, Port Richey Medical Center, Inc., an association of six (6) osteopathic physicians, applied for a certificate of need in the service area of Pasco County, Florida, in which the Intervenor, Bayonet Point Hospital, Inc., had previously been granted a certificate of need. Subsequent to the filing of Petitioner's application, Bayonet Point was granted an increase in its approved capital expenditure of 5.2 million dollars, its certificate was amended to move the construction site, and the certificate of need was extended for a period of six (6) months. The amendments and extension were approved by the Respondent, Department of Health and Rehabilitative Services, without notice to Petitioner. Petitioner filed an administrative action.
Findings Of Fact A one (1) year certificate of need, #960, was issued to Bayonet Point Hospital, Inc. on November 13, 1978, to expire November 12, 1979, pursuant to an order of the appellate court in Samson v. Bureau of Community Medical Facilities Planning of Department of Health and Rehabilitative Services, Fla. app., 363 So.2d 412 reversing a denial on May 24, 1976 of an application for a certificate of need for the construction of a 200-bed hospital in the Bayonet Point Community, Pasco County, Florida at a total cost of 4.8 million dollars. On June 19, 1979 Port Richey Medical Center, Inc. filed a letter of intention to file an application for a certificate of need and thereafter, on September 5, 1979, filed its application to build a 100-bed osteopathic hospital in the same service area in which Bayonet Point held its certificate. On July 23, 1979 Bayonet Point requested a letter of authorization to change the cost of the project from 4.8 million dollars to 10 million dollars (Petitioner's Exhibit 9). The administrator of the office of Community Medical Facilities consulted with the supervisor of the architectural and engineering unit and granted the increase on August 16, 1979 (Petitioner's Exhibit 13). On October 10, 1979 Petitioners filed a petition demanding a hearing ". . .to demonstrate that. . .the actions taken by the Department of Health and Rehabilitative Services have been outside the scope of the applicable statutes." Bayonet Point's Motion to Intervene filed October 19, 1979 was granted. On October 26, 1979 Bayonet Point requested an extension of time to its certificate and supported its request with documentation as required by Rule 10- 5.13(2), Florida Administrative Code. In addition the request stated that the administrative action filed by Petitioner on October 10, 1979, plus the finding that the designated site of the project was located in a flood-prone area were good cause to extend the certificate. The certificate of need was extended to terminate May 12, 1980, without notice to Petitioner. The Hearing Officer finds that: (a) The Respondent Department is required to determine need in the service area of a proposed health care facility but is not required to approve site location. The change in the site of the facility is within the service area previously approved and can be made without prior approval of Respondent; and (b) the Intervenor, Bayonet Point Hospital, Inc., is a subsidiary of Hospital Corporation of America, Inc., which has acquired its stock, but Bayonet Point Hospital, Inc. holds the certificate of need and proposes to construct and operate the hospital. No transfer of the certificate of need has been made. The parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the foregoing Findings and Conclusions of Law the Hearing Officer recommends that: The issues raised in the Port Richey Medical Center, Inc. petition be reviewed and determined by the agency upon notice to Petitioner; and An extension of time to the certificate of need held by the Intervenor be granted for a period of six (6) months from the date of the Final Order. DONE and ORDERED this 18th day of February, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Eric J. Haugdahl, Esquire Department of HRS 1323 Winewood Boulevard Building One, Suite 406 Tallahassee, Florida 32301 Kenneth G. Oertel, Esquire 646 Lewis State Bank Building Tallahassee, Florida 32301 Jon C. Moyle, Esquire 707 North Flagler Drive Post Office Box 3888 West Palm Beach, Florida 33402 Cynthia S. Tunnicliff, Esquire Suite 750 Barnett Bank Building Post Office Box 82 Tallahassee, Florida 32302 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES PORT RICHEY MEDICAL CENTER, INC., Petitioner, vs. CASE NO. 79-2052 DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent, vs. BAYONET POINT HOSPITAL, INC., Intervenor. /
