Findings Of Fact At all times material hereto, Respondent was a licensed medical doctor in the State of Florida having been issued License No. 0020340. Respondent specializes in the practice of ophthalmology, and is board-certified in that specialty. As indicated above, Respondent has been charged in a three-count complaint with various violations concerning his treatment of three patients. For purposes of clarity, the Findings of Fact section of this Recommended Order will, therefore, treat each such patient separately. ETTA ROSE Respondent first saw Etta Rose as a patient on March 17, 1980. At that time Ms. Rose gave a history of having had "floaters" in both eyes, in her left eye for three months and in her right eye for approximately the past three years. She also indicated a history of hypertension of five years duration. On her initial visit, Ms. Rose informed Respondent that she had last had an eye examination in December of 1978, but could not recall the name of the examining doctor. Upon physical examination on the initial visit of March 17, Respondent determined that the patient had intraocular pressures of 25 in her right eye and 26 in her left eye. In this connection, intraocular pressures of from 12 to 21 are considered roughly normal in a general patient population, and any readings above those levels are generally considered to be elevated. In addition to the above-noted intraocular pressures, Respondent also determined-on this initial visit that the patient had asymmetric nerve heads, the nerve heads in her left eye being markedly larger than those in the right. This degree of difference, according to Respondent's determination, could not be attributed to a congenital defect. Since this degree of differential in the size of the optic nerve heads occurs in less than one percent of the population, this fact, taken together with the patient's elevated intraocular pressures, resulted in Respondent's diagnosis of probable glaucoma. As a result of Respondent's physical findings as outlined above, together with the lack of information from prior treating physicians, Respondent determined that in order to avoid potentially irreversible damage to the patient's eyes, he needed to administer as high a dosage of medication to bring down the patient's intraocular pressures as rapidly as possible. Accordingly, on March 17, 1980, Respondent prescribed a one percent solution of pilocarpine to be administered to the patient's eyes every four hours. Pilocarpine is an old conservative glaucoma medication used specifically to reduce intraocular pressures. A one percent pilocarpine solution' is a relatively light dosage. Therefore, on March 20, 1980, Respondent increased the dosage of pilocarpine to two percent every four hours, and on March 24, 1980, again increased the dosage of pilocarpine to four percent every four hours. Additionally, on March 28, 1980, Respondent added the drug timolol to his attempted medical management of the patient's pressures. It is not medically advisable to start a patient directly on a four percent pilocarpine solution because of the distinct danger of side effects, such as headaches and dimness of vision. As a result, Respondent utilized a process known as "titrating," by starting the patient on a lowered dosage of medication, and rapidly bringing the patient to a maximum dosage, watching carefully during this period for evidence of side effects. The patient in this case apparently experienced no such ill side effects. During his second office visit with the patient on March 20, 1980, Respondent performed a gonioscopy to evaluate the angle where the patient's cornea touched near the iris. This procedure showed the patient to have wide open angles and no scarring. Respondent therefore concluded that the patient suffered from chronic open-angle glaucoma, which was consistent with his initial diagnosis on the first visit of March 17, 1980. On March 20, 1980, the patient's intraocular pressures were 21 in the right eye and 23 in the left eye. During the entire course of his treatment of this patient, Respondent saw the patient in his office on the following dates: March 17, 20, 24, and 28, 1980; April 3, 8, and 22, 1980; May 20, 1980; and June 24, 26, and 27, 1980. Because of the asymmetry in the patient's optic nerve heads, her elevated pressures, and her lack of medical history to demonstrate the progress, if any, of glaucoma, Respondent determined it to be necessary to develop as accurate a profile on the patient as quickly as possible. The purpose of these office visits, which occurred at different times during the day, was to approximate a "diurnal curve." A diurnal curve is a method for determining fluctuating intraocular pressures of a patient, and is customarily obtained by admitting the patient to a hospital, and checking pressures in the patient's eyes approximately every two hours over a 24-hour period. The purpose of the procedure is to obtain an accurate 24-hour reading of the patient's pressures, since pressures within the eye can fluctuate markedly during different times of the day. Respondent determined admitting Ms. Rose to the hospital to be impractical, and set upon a course of seeing her in his office on several rather closely spaced days at different times of the day in order to get a more accurate understanding of her condition. By the time Respondent last saw the patient in his office on June 26, 1980, the patient was on a four percent pilocarpine solution four times a day, .5 percent timolol, and diomox b.i.d., and her pressure in her left eye still remained 26. At that time Respondent determined that he had the option of continuing to carry the patient on these dosages of medication, in which case he determined that the patient would probably go on to progressive damage, or, alternatively, surgical intervention. Respondent determined this amount of medication to have maximized medical therapy and, as a result, recommended a trabeculectomy to attempt to lower the patient's pressures. This surgical recommendation was made on June 27, 1980, at which time Respondent invited the patient to seek a second opinion, recommending that she consult ophthalmologists at the Bascom Palmer Eye Institute at the University of Miami Medical School. The patient sought such an opinion, and elected not to undergo the surgery recommended by Respondent. As a result, the office visit of June 27, 1980, was the last time Respondent saw Etta Rose as a patient. Respondent's diagnosis of the patient at the last visit was chronic open-angle glaucoma that was uncontrollable on medical therapy. The patient was apparently seen by an ophithalmologist on May 15, 1981, and again in January of 1982. The physician who last examined the patient determined that the patient, although she had slightly elevated intraocular pressures, "probably" did not have glaucoma, but should be followed as a "glaucoma suspect" because of the difference in the size of her optic nerves. The record in this cause establishes that there are three parameters generally accepted for diagnosing glaucoma: intraocular pressures; visual fields; and the appearance of the optic nerve. As previously indicated pressures above 21 are generally considered elevated. Throughout Respondent's treatment of Ms. Rose it appears that her intraocular pressures were at all times elevated, and that the optic nerve heads in her left eye were markedly larger than those in her right eye. The record also demonstrates that she evidenced no visual field loss while being treated by Respondent or thereafter. A trabeculectomy is a surgical procedure used in the treatment of glaucoma as a last resort when all other treatment modalities have been exhausted. There is some degree of danger inherent in the procedure, and it is associated with a high failure and complication rate, and can lead to the formation of cataracts. As indicated above, Respondent is charged in the Administrative Complaint with requiring Ms. Rose to come to his office an excessive number of times, with prescribing excessive medication for her condition, and with recommending unnecessary surgery. With respect to the charge of requiring excessive office visits, it is specifically concluded that Respondent exercised that level of care, skill, and treatment which was reasonable under the circumstances given the fact that the patient had elevated intraocular pressures, asymmetric optic nerve heads, and was unable to furnish Respondent with a history that would justify less aggressive treatment than the methods employed by Respondent. Because of these factors, Respondent reasonably determined that the patient should be seen often during the initial stages of therapy particularly in order to evaluate fluctuations in the patient's intraocular pressures. At final hearing, Petitioner adduced credible testimony from two board-certified ophthalmologists that Respondent prescribed excessive medication to Ms. Rose over his period of treatment of that patient. Specifically, these physicians took exception to Respondent's increasing the dosages of pilocarpine from one percent to a four percent solution over an approximately 11-day period. These physicians felt the better practice would have been to proceed more slowly to determine how the patient's pressures were reacting to medication. Equally credible, however, was testimony from the Respondent himself and from another board-certified ophthalmologist that the procedure known as "titrating" whereby the patient is started on a lower dosage and worked to a higher dosage over a short span of time was also reasonable medical treatment under the circumstances. The patient was seen frequently so that any side effects from this increase in medication could be monitored by Respondent. In addition, because of the high degree of difference in the size of the optic nerve heads in the patient's two eyes, Respondent reasonably assumed that glaucoma, if it were present, had progressed to such an extent that it was necessary to get the patient's intraocular pressures under control as rapidly as possible. Respondent reasoned that, should the pressures be brought under control at a higher level of medication, the medication could always be cut back, whereas, if he proceeded more slowly irreversible damage might occur in the interim. This record simply reflects that reasonable ophthalmologists might disagree with respect to the proper administration of medication in this context and, as a result, it cannot be determined from this record that Respondent acted unreasonably in his course of prescribing medications to Etta Rose. Finally, Petitioner adduced credible testimony at final hearing that the trabeculectomy recommended by Respondent was improper because Respondent had not reached maximum medical management of the patients condition in that he had not utilized oral diuretics or epinephrine as treatment modalities. The reasoning here is that until maximum medical management proves unsuccessful in controlling a patient's pressures, a remedy as drastic as a trabeculectomy should not be utilized. Petitioner's witnesses testified that based on the patient's marginally elevated pressures and the fact that she demonstrated no visual field loss, surgical intervention was improper. Again, equally credible testimony from both the Respondent and another board-certified ophthalmologist called as a witness by Respondent establishes that an equally reasonable interpretation of the data available to Respondent was that the patient was, indeed, under maximum medical management, and her intraocular pressures had not responded appropriately to this treatment regime. Further, the record also establishes that it is very unusual to find the degree of difference in the size of the optic nerve heads in this patient without visual field loss. Patients who demonstrate this size differential without visual field loss often do not develop visual field loss until relatively late in the progress of the disease, but when that loss occurs it occurs abruptly and profoundly. Thus, it appears that the risk of performing a trabeculectomy had to be weighed against the danger of irreversible damage from the progress of glaucoma. Under these circumstances, it was reasonable for Respondent to recommend surgery. It should be noted also that at the time Respondent recommended the surgical procedure, he also advised the patient that she was free to seek a second opinion. In addition, Respondent also adduced credible testimony that based on the drugs which he had prescribed medical management of this patient's condition would not have been furthered by adding epinephrine to his course of treatment. Accordingly, the facts of record in this cause do not establish that Respondent caused Etta Rose to visit his office an excessive number of times, that he prescribed excessive medication for his treatment of that patient, or that unnecessary surgery was recommended by Respondent. ALBERT MILLER Respondent first saw Albert Miller as a patient on September 29, 1976. Upon physical examination of the patient, Respondent had no reason to suspect the presence of glaucoma. The patient was next seen on March 16, 1977, for a check of his retina because of his history of diabetes. In addition to diabetes, the patient also had a history of hypertension. There were no changes in the patient's condition on the March 16, 1977, visit, and Respondent instituted no treatment. The patient was next seen for an annual check on May 22, 1978. The patient's vision with his glasses had worsened in both eyes at that time. The patient's history indicates that the patient's diabetes had been high just two months prior to this examination. The diabetes had apparently also affected the patient's intraocular pressures because they were found to be 20 in both eyes on this examination, whereas they had been 17 in the right eye and 16 in the left eye on September 29, 1976, when the patient was first seen by Respondent. Respondent chose not to institute active treatment of the patient after the May 22, 1978, visit. The patient was next seen on July 17, 1979. At that time his pressures were still 20 in both eyes and Respondent noted some slight increase in cataract formation and the presence of retinal hemorrhages in the patient's right eye, indicating some diabetic retinal changes that could make the patient's eyes more susceptible to disease. The patient was next seen on July 15, 1980, at which time his intraocular pressures were measured to be 26 in the right eye and 24 in the left eye. Although there is a notation in Respondent's record that the patient was "squeezing," which can artificially elevate pressures, the Respondent testified without contradiction that the "squeezing" noted in his records did not affect the accuracy of these recorded pressures. As of the July 15, 1980, office visit, Respondent diagnosed the patient as a "glaucoma suspect," which is someone who, because of existing physical factors, runs a substantial chance of developing future glaucoma. As a result of this diagnosis, the Respondent scheduled the patient for visual fields on July 17, 1980, and a gonioscopy on July 18, 1980. Visual fields performed by Respondent showed visual field defects which were suggestive of actual visual field loss on threshold stimulus testing. As a result the Respondent concluded that the patient might already have had early visual field loss, and started the patient on a one percent pilocarpine solution in both eyes, every four hours. The patient was next seen on July 22, 1980, at which time his pressures were measured to be 22 in the right eye and 20 in the left eye at 1:35 p.m. The patient was next seen on July 25, 1980, at which time his pressures were 24 in the right eye and 18 in the left eye. Respondent did not feel that a pressure of 24 in the right eye was adequate medical control, so he increased the patient's medication to two percent pilocarpine solution, and scheduled the patient to return on July 29, 1980. The July 25, 1980, pressure readings were conducted at 8:55 a.m., so the patient was scheduled to return in the early afternoon on July 29, 1980, in order to obtain pressure readings at a different time of day. On that occasion, the patient's pressures were 20 in the right eye and 22 in the left eye, which Respondent still determined not to be adequate medical management. Accordingly, Respondent increased the dosage of pilocarpine to a four percent solution. The patient was next seen on August 1, 1980, at which time his pressures were 21 in the right eye and 22 in the left eye. Respondent concluded the reading of 22 in the left eye, in light of possible visual field defects, was not adequate medical management, so he added 0.25 percent timolol to the four percent pilocarpine prescription. The effect of timolol is usually observable within 48 hours. The patient was next seen on August 5, 1980, at which time his pressures were 17 in the right eye and 18 in the left eye. Respondent was pleased with the lowering of the patient's pressures, and scheduled the patient to return on August 11, 1980. At that time the patient's pressure was 20 in both eyes. Respondent was pleased with these results, and felt that he did not need to see the patient again for a two-week period. The patient never returned. The last time the patient was seen by Respondent on August 11, 1980, the Respondent's diagnosis was "glaucoma suspect," although Respondent felt that he needed to follow the patient longer to monitor his visual fields and optic nerve heads. However, with the patient's history of diabetes, myopia, hypertension, and Respondent's determination that he showed early visual field changes, Respondent felt confident with his final diagnosis of "glaucoma suspect." The patient was subsequently examined by another ophthalmologist in the Fort Lauderdale area on August 28, 1980. At that time the patient's pressures were 19 in the right eye and 20 in the left eye. The patient was given a complete examination, which showed presence of dot and blot hemorrhages throughout the entire retina of both eyes, which was to be expected of a patient who was diabetic for the past 15 years, and had been taking insulin for that condition for the past eight years. The patient's optic nerves were normal, and the patient's cup to disc ratio was also normal. Because the patient's optic nerves were normal, he was taken off the pilocarpine which had been prescribed for him by the Respondent. A visual field test was also administered to the patient to determine the presence of any visual field loss secondary to glaucoma, but that test indicated normal vision. The normal cup to disc ratio found by the subsequent treating physician in examining the patient has remained stable throughout his entire course of treating the patient. The patient was last seen by the subsequent treating physician on May 25, 1982, at which time he had intraocular pressures of 16 in the right eye and 18 in the left eye without medication. Another visual field test was performed on that date, which again disclosed normal vision. The subsequent treating physician, like Respondent, diagnosed the patient to be a potential "glaucoma suspect." In the Administrative Complaint, Respondent is charged with requiring Mr. Miller to make an excessive and unnecessary number of office visits. The Respondent is also charged with failing to maintain records revealing the frequency of use of the pilocarpine prescribed for Mr. Miller, and further with failing to maintain records indicating the percentage dosage of timolol and the date of beginning of use of that drug. With respect to the latter charge, the record contains no facts to substantiate those allegations and, in fact, contains evidence that Respondent clearly noted in his records the information charged as lacking in the Administrative Complaint. The Administrative Complaint also charges Respondent with having required the patient to visit his office a total of ten times between July 17, 1980, and August 11, 1980, which is alleged to be ". . . an excessive an[sic] unnecessary number of office visits." The record in this cause establishes that the patient visited Respondent's office a total of eight times during that period. As indicated above, the patient had been seen by Respondent over a period of approximately four years before there was ever any indication of even marginally elevated pressures. Given the patient's history of diabetes and hypertension Respondent, in the exercise of his clinical judgment, determined to treat the condition with medication. Although the record in this cause contains credible testimony that some physicians would not have treated the condition at all, or would have seen the patient at most once a week, equally credible evidence contained in this record establishes that once the decision to treat was made and the patient was started on medication, it was entirely proper to monitor the patient closely to determine the effect that the medication was having on the patient's pressures. It should be noted that the Respondent is not charged in the Administrative Complaint with prescribing excessive or unnecessary medication. Based upon the foregoing, it is therefore concluded that there is an insufficient factual basis in the record in this proceeding to establish that, under the conditions present here, the Respondent departed from reasonable medical practice in seeing the' patient on eight occasions during approximately a one-month period. ELEANOR DRAGER This patient was first seen by Respondent on January 7, 1980. At that time the patient gave a history of having had her vision go blurry for 15 to 20 minutes on two occasions since the beginning of the year. An examination of the patient's eyes showed her vision to be 20/29 in her right eye and 20/100 in her left eye. Intraocular pressures were 30 in her right eye and 28 in the left eye, both of which are considered to be quite high. The patient's last eye examination had been in October of 1978. The patient was next seen on January 9, 1980, at which time Respondent determined it necessary to perform cataract surgery and to implant an intraocular lens. The surgery was performed on January 30, 1980, and, in addition to removing a cataract and implanting a lens, Respondent performed a posterior sclerotomy, a procedure performed by making a tiny hole in the eye wall and inserting a needle to aspirate vitreous fluid, thereby allowing the remaining vitreous to resume a normal position. The patient was seen postoperatively on February 1, 1980, and again on February 7, 1900. Respondent's practice is to visit frequently with postoperative patients in order to closely monitor the patient's condition. On the February 7, 1980, examination, the patient's vision was 20/70 in her left eye, which Respondent considered excellent for one week postsurgery. The pressure in the eye was 20 and there were no other changes of note. The patient was next seen on February 13, 1980, at which time her vision was only 20/200 in her left eye. The only other finding of note on this date was that the lens implant had shifted to a position closer to the cornea. The patient was next seen on March 13, 1980, at which time her vision was still 20/290 in the left eye, and her pressures were 22 in the right eye and 44 in the left eye. Respondent improved the patient's vision to 20/60 in her left eye with a lens change in her glasses. The patient was next seen on March 25, 1980, in response to a call from the patient indicating that on the previous day she had experienced foggy vision in her left eye, and within an hour could see nothing at all out of the eye., The patient had treated the problem herself with eye drops and, within a couple of hours, her vision had improved. Upon examination, Respondent discovered the patient's vision to be 20/200 in the left eye, with a pressure of Respondent restored the patient's vision to 20/25 with a glasses change, leading him to suspect, in view of the patient's recent surgery, that there was a possibility of retinal detachment or retinal tear with possible vitreous hemorrhage. Respondent was unable to see the entirety of the back of the Patient's eye in order to determine the presence of a retinal tear because a view of certain portions of the eye was blocked by the intraocular lens implant. The patient was next seen on March 31, 1980, complaining of "haze" over her left eye. The patient's vision has worsened to 20/40 in her left eye, and her intraocular pressures were 26 in both eyes. The Respondent again changed the lenses in the patient's glasses, restoring her vision to 20/25 in the left eye. The patient was next seen on April 14, 1980, still complaining of the "haze" over her left eye and an additional complaint of many black dots in the left eye since her last visit. Respondent dilated the eye, and found a large number of vitreous floaters present. Respondent concluded from the presence of these floaters that the patient had probably suffered a vitreous hemorrhage. The most common reason for floaters to be present in a postsurgical cataract patient with a vitreous hemorrhage is retinal tear. Respondent could not, however, actually see the retinal tear upon visual examination. The patient was seen again on April 16 and on April 18, 1980, complaining of an increase of black soots in her left eye. Upon examination, Respondent noted the presence of vitreous traction in the left eye, and determined that the patient should be scheduled for cryo-pexy surgery to be performed in his office on April 21, 1980. Cryo-pexy surgery is an operation that involves the application of cold, in this case a local drop of opthane, to the eyeball in order to produce a tissue destruction to release adhesions thereby avoiding potential retinal tear or detachment. The procedure can be performed in a physician's office, as opposed to a hospital, and requires only 10 to 15 minutes to perform. At the time cryo-pexy surgery was to be performed, Respondent had been unable to actually observe a retinal tear, although he had noted the presence of retinal traction. Respondent felt, however, that a retinal tear could have been caused by the placement of the needle through the pars plana during the course of performing the posterior sclerotomy on January 30, 1980. In fact, many ophthalmalogists perform cryo- pexy at the same time as a posterior schlerotomy in order to prevent a retinal tear from developing as a result of that procedure. Respondent chose to recommend cryo-pexy surgery for a variety of reasons. Among them were the recent cataract surgery, the implantation of an intraocular lens, the performance of the posterior sclerotomy, and the' patient's history of heart disease which would have made it more complicated to perform cutting surgery as opposed to cryo-pexy should an actual retinal detachment occur. The patient had a history of recent phlebitis which had hospitalized her, so that the possibility of placing her under general anesthesia in order to perform major surgery for a retinal detachment thereby leaving her inactive in a hospital bed for a period of days could have resulted in a complication of her phlebitis. The decision to perform cryo-pexy surgery involved the exercise of clinical judgment. Respondent, by necessity, had to weigh the dangers of performing the surgery against problems that might be associated with failure to perform the procedure. The three principal reasons advanced in this record for not performing this procedure were that Respondent's records indicated only the presence of "floaters" and not an actual vitreous hemorrhage; Respondent could not actually visualize the retinal tear prior to recommending surgery; and, the performance of cryo-pexy could have further traumatized an eye which had already been subjected to considerable surgical manipulation. In response to these considerations, Respondent testified, without contradiction, that he considered the presence of "floaters" to be synonymous with vitreous hemorrhage and, therefore, saw no reason to actually note the presence of hemorrhage in his notes. Further, although Respondent could not actually see a retinal tear in the patient's eye, based on his course of treatment of the patient he was aware of the site through which he had placed the needle in performing the posterior sclerotomy, and reasonably concluded that the performance of that procedure, in the presence of so great a quantity of floaters in the patient's eye, could have resulted in a retinal tear. In short, the patient's symptoms were consistent with development of a vitreous hemorrhage following cataract extraction. In light of the fact that the cataract extraction included the performance of a posterior sclerotomy through the pars plana, there was every reason to believe that the patient might have had a hole somewhere in the region of the sclerotomy site. Under these conditions cryo-pexy is an acceptable means of treating this condition despite being unable to see an actual retinal tear. The risk in delaying the performance of the cryo-pexy was that the retina could detach and the problem thereby become more difficult to manage. In making the decision to perform cryo-pexy, the Respondent weighed the risk of performing the procedure against the risk of not performing it, and reasonably determined that the best course of treatment was to perform the procedure.
The Issue The issue posed for decision herein is whether or not the Respondent, a licensed dentist, should be disciplined based on conduct which will be set forth hereinafter in detail allegedly violative of Subsection 464.24(3)(a)(m), Florida Statutes, and Chapter 100-56.637(3) and (4)(a), Florida Administrative Code.
Findings Of Fact Max R. McConnell, D.D.S., is a licensed dentist who holds license No. 2743, and as such is authorized to practice dentistry in the State of Florida under the jurisdiction of Chapter 466, Florida Statutes. During times material, Dr. McConnell, Respondent, was engaged in the practice of dentistry and maintained a dental office located at 3606 South Manhattan Avenue, Tampa, Florida. On April 15, 1977, a representative with the Department of Health and Rehabilitative Services conducted a routine inspection of Petitioner's X-ray equipment. On this occasion, it was discovered that Respondent's X-ray machine, a Weber 6RS/M 6R3967, which is located in the rear room of his dental office, was found to be in noncompliance with the requirements of Chapter 1856, Florida Administrative Code, to-wit, the timer on the machine did not correctly terminate the exposure. Chapter 10D-56.637(3), Florida Administrative Code, provides in pertinent part that: Timers. Means shall be provided to ter- minate the exposure at a preset time inter- val, preset product of current and time, or a preset number of pulses or a preset radiation exposure to the Image receptor. In addition, Termination of exposure shall cause automatic resetting of the timer to its ini- tial setting or to zero. (h) It shall not be possible to make an exposure when the timer is set to a zero or off position if either position is provided. X-ray Control (Exposure Switch) (a) A control shall be incorporated into each x-ray system such that an exposure can be terminated at any time. This switch shall be of the dead-man type. During the April 15, 1977, routine inspection by Petitioner, the Respondent was advised of the nonconformance of the X-ray machine and he agreed to correct the machine within ninety days. Thereafter, during a subsequent inspection on March 9, 1978, the subject machine was again inspected and again found to be in noncompliance because of the faulty timer, and Respondent was mailed a letter dated March 13, 1975, requesting the necessary corrections be completed as soon as possible. Subsequent visits to Respondent's office on October 12, 1978, and April 25, 1979, revealed that the subject X-ray machine was still found not to be in compliance because the timer failed to terminate the exposure as required in Chapter 10D-56.637(3) and (4)(a), Florida Administrative Code. The Respondent testified that the subject machine was merely used by himself as a supplemental machine and that the primary machine which he uses correctly terminates the exposure as required by the foregoing chapter. In this regard, two of Respondent's former dental aides who were employed during the times in question testified that the Respondent does not always operate the machine and, while it may be true that he knows how to operate the machine in such a manner as to correctly terminate the exposure, the two dental aides testified that they are called upon to utilize the machine at times. For this reason, it is concluded that the Respondent continues to operate an X-ray machine in his office which he knows to be in noncompliance with Chapter 10D- 56.637(3) and(4)(a), Florida Administrative Code. I shall so retend.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is hereby, RECOMMENDED: That the Respondent Max R. McConnell, D.D.S., repair the above-described Weber 6R X-ray machine with Serial Number 6R3967, within ten (10) days of the date of the Board's final order or remove such machine from his office within the above-stated period. Additionally, it is recommended that the Respondent, Max R. McConnell, D.D.S., be issued a written reprimed for engaging in the above conduct. RECOMMENDED this 16th day of November, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida 32207 Max R. McConnell, D.D.S. 3606 South Manhattan Avenue Tampa, Florida ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA FLORIDA BOARD OF DENTISTRY FLORIDA BOARD OF DENTISTRY, Petitioner, vs. CASE NO. 79-1755 MAX McCONNELL, D.D.S., Respondent. /
The Issue The issues are whether Respondent failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, and, if so, what penalty, if any, should be imposed.
Findings Of Fact 1. Stipulated Facts Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30 and Chapters 455 and 458, Florida Statutes. Respondent is a licensed physician in Florida holding license number ME 0009772. Respondent's last known address is 9430 Turkey Lake Road, Orlando, Florida 32819-8015. Respondent is Board certified in orthopedic surgery. Respondent provided medical treatment to two male patients between 1990 and 1991. Patient 1 was treated from approximately April 29, 1991, through August 12, 1991. At the time, Patient 1 was approximately 34 years old. Patient 2 was treated from approximately May 14, 1990, through June 20, 1991. Patient 2 was approximately 29 years old. Patient 1 Patient 1 had a history of hip dislocation with aseptic necrosis, chronic back and leg pain, and foot numbness associated with degenerative disc disease and lumbar stenosis. Lumbar stenosis is compression of the spine. Spine compression was particularly significant between the fifth lumbar and first sacral vertebrae. Prior to April 29, 1991, Patient 1's treatment was conservative and nonsurgical. On April 29, 1991, Patient 1 presented to Respondent to explore alternative therapy. Patient 1 complained of pain and numbness in his back, hip, and legs. Respondent diagnosed Patient 1 with lumbar spinal stenosis and possible disc herniation. Respondent recommended a myelogram. A myelogram was performed on May 13, 1991. The myelogram confirmed Respondent's diagnosis of lumbar spinal stenosis and possible disc herniation. The myelogram revealed a disc defect on the right side of L5-S1 as well as severe spinal and lateral recess stenosis. On June 11, 1991, Respondent performed a laminectomy on Patient 1, an L5-S1 disc excision, and an internal spinal stabilization using Harrington rods attached with lamina hooks. Use of lamina hooks resulted in the compression of Patient 1's underlying neural tissue. Compression of the underlying neural tissue caused Patient 1 to suffer perineal numbness. Respondent's medical records of June 17, 1991, show that Respondent knew Patient 1's perineal numbness was a result of compression of the sacral nerve root at L5-S1. On June 17, 1991, Respondent again performed surgery on Patient 1. Respondent replaced the lamina hooks with alar hooks. Respondent also replaced and adjusted the tension of the Harrington rods. On August 1, 1991, Patient 1 was admitted to Sandlake/Orlando Regional Medical Center ("ORMC") for surgical removal of the implanted hooks and Harrington rods. Respondent surgically removed the Harrington rods and attachment hooks. On August 12, 1991, Respondent's medical records showed that Patient 1 suffered from persistent numbness of the sacral nerve root areas. The area of numbness included the perineum, scrotum, and penis. Respondent did not perform an L5-S1 bone fusion during any surgery. Patient 2 On May 14, 1990, Patient 2 presented to the Emergency Room ("ER") at ORMC with primary complaints of back and right leg pain. The ER physician diagnosed Patient 2 with a herniated nucleus pulposus at L4-L5. The nucleus pulposus is the soft central portion of the intervertebral disc. Respondent admitted Patient 2 on May 14, 1990, and treated him with intravenous muscle relaxants. On May 15, 1990, a computerized axial tomography ("CAT") scan revealed a bulging, herniating disc at L4-L5. On May 17, 1990, Respondent discharged Patient 2 with instructions regarding back care and an exercise program. On August 24, 1990, Patient 2 presented to Respondent with recurrent disabling sciatic pain. A magnetic resonance imaging ("MRI") scan was performed on August 28, 1990. The MRI revealed a prominent disc bulging at L4-L5 with material intruding into the spinal cord. On September 7, 1990, Respondent performed a lumbar laminectomy and disc excision at L4-L5. Respondent discharged Patient 2 on September 12, 1990. On December 11, 1990, Patient 2 presented to Respondent with recurrent back and right leg pain. Respondent prescribed analgesics including Soma with codeine and Naprosyn. On January 14, 1991, Patient 2 presented to Respondent with back and right leg pain. Patient 2 underwent a CAT scan to determine if recurrent disc herniation was present. The CAT scan failed to indicate any obvious asymmetric changes which would confirm Respondent's diagnosis of recurrent disc herniation. On January 21, 1991, Respondent performed a decompressive laminectomy on Patient 2. Respondent's operative report for January 21, 1991, indicates that Respondent found no evidence of a herniated disc. On February 26, 1991, Patient 2 presented to Respondent with complaints of recurrent leg and back pain. Respondent referred Patient 2 to Dr. William Bradford for treatment utilizing epidural blocks. On April 16, 1991, Patient 2 again presented to Respondent. Respondent placed Patient 2 in a molded, fiberglass body jacket. Back and leg pain subsided while Patient 2 wore the fiberglass jacket. On May 14, 1991, Respondent performed surgical stabilization of the lower lumbar spine utilizing Harrington rods. On June 17, 1991, Patient 2 presented to Respondent with persistent numbness of the perineal area as well as bowel and bladder incontinence. Respondent determined that the numbness and incontinence were caused by sacral nerve root irritation associated with the Harrington rod hooks. Respondent surgically adjusted the Harrington rods on June 20, 1991. Respondent did not perform vertebral bone fusion during any surgery. 2. Standard Of Care Respondent failed to practice medicine in his treatment of Patient 1 with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Respondent improperly seated lamina hooks in Patient 1. As a result, Patient 1 suffered compression of underlying neural tissue. Respondent improperly used Harrington rods and hooks to achieve transient spinal decompression without performing essential vertebral bone fusion. Use of Harrington rods in the lumbar spine is an obsolete technology. It is fraught with dangers. Among other things, it eliminates the lordosis, or natural spinal curvature. Respondent failed to practice medicine in his treatment of Patient 2 with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Respondent performed numerous surgeries on Patient 2 when CAT scans and other examinations failed to confirm recurrent disc herniation. In addition, Respondent failed to perform essential vertebral bone fusion on Patient 2. 3. Proximate Cause And Severity Of Injury Respondent's failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances was the proximate cause for permanent neurological damage to Patient's 1 and 2. Both patients suffered sacral nerve root paralysis. Sacral nerve roots feed functions in the pelvis, bladder bowel, and sphincter. Both patients suffered permanent incontinency, including loss of bladder and bowel function. Each patient requires a colostomy and must wear diapers. Patient 1 has suffered sexual dysfunction in that he has lost the sensation necessary for a natural erection. The neurologic injuries to Patients 1 and 2 are major and permanent. Nothing can restore the functional loss suffered by either patient.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding Respondent guilty of violating Section 458.331(1)(t) in his treatment of Patients 1 and 2, imposing an administrative fine of $7,500, and restricting Respondent's practice as follows: Respondent shall not perform any spinal surgery on patients unless and until Respondent appears before the Board of Medicine and demonstrates to the satisfaction of the Board that he is able to do so with skill and safety; and The Board of Medicine may place other reasonable conditions on Respondent's practice of orthopedic surgery at such time as the restriction in the preceding paragraph is lifted. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of October, 1994. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3966 Petitioner's Proposed Findings of Fact 1. -39. Accepted as stipulated fact 40.-41. Rejected as recited testimony Accepted in substance Rejected as recited testimony Accepted in substance 45.-51. Rejected as recited testimony Respondent's Proposed Findings of Fact Respondent stipulated to Petitioner's proposed findings of fact, paragraphs 1- 39. Respondent's only additional proposed finding of fact is unnumbered and is rejected as not supported by persuasive evidence. COPIES FURNISHED: Dr. Marm Harris, Executive Director Department of Business and Professional Regulation Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Harold D. Lewis, Esquire Agency For Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303 Kenneth J. Metzger, Esquire Agency For Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack L. Gresham, M. D. 9430 Turkey Lake Road Orlando, Florida 32819-8015
The Issue The issue to be determined in this proceeding is whether Respondent violated section 466.028(1)(x), Florida Statutes (2011), and if so, what penalty should be imposed for the violation.
Findings Of Fact At all times relevant to the allegations in the Administrative Complaint, Respondent was a licensed dentist in the State of Florida, having been issued license number DN 15873. Respondent’s address of record is 17020 County Line Road, Spring Hill, Florida 34610. At all times relevant to these proceedings, Respondent operated a dental practice known as “Smiles and Giggles Dentistry” in Spring Hill, Florida. This case involves Respondent’s diagnosis and treatment of a minor male, M.P., on or about April 26, 2010. In order to understand the care and treatment given to M.P., some definitions relative to the practice of dentistry are in order. Dentists use different terms than laypersons to describe the sides and top of a tooth when recording issues on a patient’s chart (charting) regarding the patient’s teeth. For example, the occlusal surface of the tooth is the biting surface, and its abbreviation is “O.” The lingual surface is the side of the tooth closest to the tongue, and is charted with an “L.” The facial side of the tooth is the side next to the cheek, and is charted as “F,” or as “B,” for buccal. The distal part of the tooth is the part of the tooth facing the back of the mouth and is abbreviated “D,” and the mesial side is the front side of the tooth, and is abbreviated “M.” This case involves the diagnosis of caries, or what are referred to by laymen as cavities. A caries is an area of the tooth that has mineral loss from the production of bacteria. The term “caries” can refer to a single cavity or multiple cavities. An incipient caries is another term for an early lesion, usually confined to the outer layer of the tooth, or the enamel. Depending on the surface of the tooth, an incipient caries can be seen upon visual inspection. If it is on the distal or mesial surface, however, it is not always possible to see incipient caries because the decay is usually blocked by other structures. Gross caries are large cavities that have taken away a large amount of tooth structure, and can also usually be seen on visual inspection. A “pit and fissure” caries is usually confined to the occlusal, facial, or lingual sides of the tooth, and consists of a groove, or pit, in the tooth. Interproximal caries are cavities between the teeth where the teeth touch. They are the most difficult to see upon visual inspection, but are relatively easy to detect on X ray. Diagnosing caries is a multi-step process. First, a dentist conducts a visual examination of the patient, which may include a tactile examination of the teeth. The visual examination is then compared to X rays of the teeth. Experts for both Petitioner and Respondent agree with the American Dental Association (ADA) and the Food and Drug Administration (FDA) statement that an individualized radiographic examination should consist of posterior bitewings with panoramic examination, or posterior bitewings and selected periapical images, and that a full mouth intraoral examination is preferred when the patient has clinical evidence of generalized oral disease or a history of dental treatment. Both agreed that this statement represents the minimum standard of care when diagnosing and treating interproximal cavities. Bitewing X rays are X rays taken in the posterior of the mouth, and can be molar bite-wings or pre-molar bitewings. The film or sensor is placed inside the mouth, and the X ray machine is placed next to the head, on the cheek next to the teeth where the film was placed. These X rays would be considered intraoral X rays. Some panoramic machines are also equipped to take bitewing X rays. Panoramic X rays are considered to be extra- oral images because nothing is placed in the mouth. Here, the patient steps into the machine, bites on something in order to hold his or her head in position, and then the X ray beam and the sensor rotate around the patient’s head in a complete 360-degree circle to obtain an image. Because intraoral X rays are placed right next to the teeth inside the patient’s mouth, the image only passes through the cheek, gums, and bone. With a panoramic X ray, the receptor is outside the mouth, and the X ray emitter has to go completely through the opposite side of the skull and then come through to the outside of the mouth to receive the image. As a result, the panoramic X ray can have a lot of superimposition of structures in the mouth. According to Respondent’s patient records for M.P., when she examined him on April 26, 2010, she performed a comprehensive oral evaluation and took a panoramic X ray, two extraoral films, and four bitewing X rays. Respondent diagnosed M.P. with caries on the distal and occlusal surfaces of tooth number 20; caries on the distal and occlusal surfaces of tooth number 28; caries on the mesial, occlusal, and distal surfaces of tooth number 29; caries on the occlusal and lingual surfaces of tooth number 14; and caries on the occlusal and lingual surfaces of tooth number 15. Teeth numbers 20, 28, and 29 were diagnosed with interproximal decay. Dr. Smith’s records did not indicate what diagnostic methods she used to diagnose the caries. The account history reflects that comprehensive oral evaluation was conducted but no note history was provided. Respondent’s proposed treatment plan for M.P. listed amalgam restorations for two surfaces for teeth 20 and 28; amalgam restoration of three surfaces for tooth 29; resin-based composite restoration for teeth 14 and 15; sealant for teeth 2, 3, 18, 19, 30, and 31; and resin-based restoration of one surface for tooth 9. G.P., M.P.’s guardian,1/ was apparently displeased with the amount of restorative work Respondent proposed. He did not return to Respondent’s office for his next scheduled appointment. Instead, G.P. took M.P. back to W. Scott Wagner, D.D.S., in Jacksonville Beach, who had treated M.P. for approximately eight years before he saw Respondent. Dr. Wagner examined M.P. on May 17, 2010. He took X rays of M.P.’s teeth, which included four bitewing X rays, and performed a clinical examination. In his view, there was one suspicious area on the distal of tooth number 20, but it was not all the way through the dentin. Dr. Wagner decided that, in light of M.P.’s history, he recommended monitoring the tooth and having M.P. engage in better flossing and brushing with the goal of remineralizing the tooth. He did not see any evidence of interproximal caries other than tooth 20, and did not believe that the area on the distal of tooth 20 was worth treating. Dr. Wagner also recommended and applied preventative resin restorations for several teeth, using a flowable composite. Use of a flowable composite is considered a filling because only a dentist, as opposed to a dental assistant, can perform the procedure, but is in the nature of a sealant. Dr. Wagner prefers a flowable composite over a traditional sealant because he believes that the material in a sealant is not strong enough. M.P. did not return to Dr. Wagner’s office after May 17, 2010. The Department presented the expert testimony of Edward R. Zapert, D.M.D., to give his opinion as to whether Respondent deviated from the minimum standards of performance in diagnosis and treatment of M.P. Dr. Zapert is a dentist licensed in Florida since 1983, having been issued license number DN 9761. He is employed by the Department of Health in Leon County and his practice focuses primarily on Medicaid-eligible children. He treats all types of dental problems, from children with near- perfect teeth to those with complex and advanced problems. Dr. Zapert is a faculty member for the University of Florida and is a member of the Florida Dental Association, the American Dental Association, and the Leon County Dental Association. He received his dental education at the University of Connecticut. Dr. Zapert reviewed Dr. Smith’s dental records as well as the X rays obtained by her. He also reviewed the X rays and the deposition of the subsequent treating dentist, Dr. Wagner. The records reviewed are the type of records upon which he would customarily rely for forming an opinion regarding the standard of care and were sufficient for him to form such an opinion. Dr. Zapert did not believe that the X rays of teeth numbers 20, 28, and 29 indicated any interproximal decay, and Respondent’s records did not have any written notations on the X rays. While the number of X rays taken was adequate, the X rays were, in Dr. Zapert’s view, not of high quality. Dr. Zapert opined that Dr. Smith’s diagnosis and recommended treatment of interproximal caries was below minimum standards because the X rays did not indicate the existence of interproximal decay for these three teeth. Dr. Zapert recognized that Dr. Smith did not actually fill the teeth identified in the treatment plan because M.P. never returned for his follow-up appointment. He also acknowledged that in theory, it was possible that Dr. Smith could change her treatment plan before executing it. However, these factors did not change his view that a dentist should be absolutely certain that there is decay before filling a tooth, and that the X rays for teeth 20, 28, and 29 showed no evidence of interproximal decay. Dr. Zapert also reviewed the X rays taken by Dr. Wagner, and concluded that they also showed no evidence of interproximal decay. Respondent presented the testimony of Frank Grimaldi, D.D.S. Dr. Grimaldi is a dentist licensed in the state of California who has practiced dentistry since 1981. He graduated first in his class from the dental school at University of California, San Francisco, where he served on the faculty since 1983. Dr. Grimaldi was the director of the general practice residency program, was a full clinical professor in addition to having a private dental practice, and retired after 31 years at the university last year. He continues to practice dentistry in private practice, and still teaches at the university on a limited basis. Dr. Grimaldi reviewed the complete patient records of M.P. from both Dr. Smith and Dr. Wagner, and has formed an opinion as to whether Dr. Smith deviated from the standard of care. In Dr. Grimaldi’s opinion, she did not. Dr. Grimaldi opined that Dr. Smith met the standard of care in the methods she used in her evaluation, in that it was appropriate to collect a patient history, take bitewing X rays, make a clinical examination, and form a treatment plan. Dr. Grimaldi believes that an X ray exam alone does not provide a full picture of what is going on in a patient’s mouth. He charts everything that is suspicious that he sees when examining a patient, and ultimately does not always treat everything that is observed or charted. Accordingly, to Dr. Grimaldi, a treatment plan may be modified right up to the point of time the dentist executes the treatment. Based upon his review of the X rays of both Dr. Smith and Dr. Wagner, which he believed to be of “adequate” quality, Dr. Grimaldi testified that there was incipient interproximal decay on teeth 20, 28, and 29, and believes a diagnosis of interproximal decay for all three teeth would have been appropriate and within the standard of care. With respect to the individual teeth, Dr. Grimaldi stated that he saw “clear darkness in the area toward what we call the distal of number 29,” with respect to tooth 20, “at the distal of number 20 . . . it shows clearly darkness, although not as clear as 29, on its distal surface,” and with respect to tooth 28, “it has a hint of some darkness at the distal surface but not as much as the other two.” (Transcript at 120-122). Dr. Grimaldi was consistent in his characterization of the condition of the three teeth, although he referred at least once to the X rays as showing a “strong hint of demineralization on the distal of 29, and the distal of 20, less so on the distal of 28.” He acknowledged the difference in his opinion and Dr. Zapert’s saying there is going to be variability among practitioners caused by factors such as training and experience, access at the time, lighting, the fatigue level of the practitioner, and communication with staff while charting. He emphasized that the X rays are only part of the diagnostic process, and clinical examination of the patient is also important. In short, the patient in this case was seen by two dentists and his X rays reviewed by four. With respect to tooth 20, Dr. Zapert found no evidence of interproximal decay, Dr. Wagner saw one suspicious area on the distal surface of tooth 20 that should be monitored but not treated; Dr. Grimaldi saw a “strong hint” of demineralization where tooth 20 touches tooth 19, and Dr. Smith diagnosed interproximal decay and recommended an amalgam filling. With respect to tooth 28, Drs. Zapert and Wagner saw no evidence of interproximal decay, Dr. Grimaldi felt that there was a suggestion of interproximal decay, although not as clear as the other teeth at issue, and Dr. Smith diagnosed interproximal decay and recommended amalgam fillings. With respect to tooth 29, Drs. Zapert and Wagner saw no evidence of interproximal decay, Dr. Grimaldi felt that was clear evidence of interproximal decay (it being, in his opinion, the worst of the three), and Dr. Smith diagnosed interproximal decay and recommended amalgam fillings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 21st day of October, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 21st day of October, 2013.
The Issue The issues in this case are whether Respondents performed a wrong procedure on patient C.C., as set forth in the second amended administrative complaints, and if so, what is the appropriate sanction.
Findings Of Fact The Department of Health, Board of Medicine, is the state agency charged with regulating the practice of medicine in the state of Florida, pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. At all times material to this proceeding, Respondents were licensed physicians within the state, with Dr. Kenneth D. Stahl having been issued license number ME79521 and Dr. Eddie Ward Manning having been issued license number ME110105. Dr. Stahl has been licensed to practice medicine in Florida since 1999 and in California since 1987. He has never had disciplinary action taken against either license. Dr. Stahl is board certified by the American College of Surgeons in general surgery, cardiac and thoracic surgery, and trauma and critical care surgery. Dr. Stahl's address of record is 3040 Paddock Road, Fort Lauderdale, Florida 33141. Dr. Manning has been licensed to practice medicine in Florida since May 31, 2011. He has never had disciplinary action taken against his license. On June 23, 2011, Dr. Manning was a resident in general surgery. Dr. Manning's address of record is 1900 South Treasure Drive, Apartment 6R, North Bay Village, Florida 33141. In February 2011, patient C.C., a 52-year-old female, was admitted to Jackson Memorial Hospital (JMH) with a diagnosis of perforated appendicitis. She also had a perirectal abscess. Her records indicate that she was treated with percutaneous drainage and a course of intravenous (IV) antibiotics. She was discharged on March 4, 2011. On June 22, 2011, patient C.C. presented to the JMH Emergency Department complaining of 12 hours of abdominal pain in her right lower quadrant with associated nausea and vomiting. Shortly after her arrival she described her pain to a nurse as "10" on a scale of one to ten. A computed tomography (CT) scan of patient C.C.'s abdomen was conducted. The CT report noted that the "the uterus is surgically absent," and "the ovaries are not identified." It noted that "the perirectal abscess that was drained previously is no longer visualized" and that the "appendix appears inflamed and dilated." No other inflamed organs were noted. The radiologist's impression was that the findings of the CT scan were consistent with non-perforated appendicitis. Patient C.C.'s pre-operative history listed a "total abdominal hysterectomy" on May 4, 2005. Patient C.C.'s prior surgeries and earlier infections had resulted in extensive scar tissue in her abdomen. Dr. Stahl later described her anatomy as "very distorted." Patient C.C. was scheduled for an emergency appendectomy, and patient C.C. signed a "Consent to Operations or Procedures" form for performance of a laparoscopic appendectomy, possible open appendectomy, and other indicated procedures. Patient C.C. was taken to surgery at approximately 1:00 a.m. on June 23, 2011. Dr. Stahl was the attending physician, Dr. Manning was the chief or senior resident, and Dr. Castillo was the junior resident. Notes indicate that Dr. Stahl was present throughout the critical steps of the procedure. Dr. Stahl had little recollection of the procedure, but did testify that he recalled: looking at the video image and seeing a tremendous amount of infection and inflammation and I pulled-–I recall that I myself went into the computer program and pulled up the CT scan and put that on the screen right next to the video screen that's being transmitted from the laparoscope and put them side-to-side and compared what the radiologists were pointing to as the cause of this acute infection and seeing on the laparoscopic video image that that indeed matched what I saw in the CT scan and I said, well, let's dissect this out and get it out of her so we can fix the problem. Dr. Stahl further testified that the infected, hollow organ that was dissected and removed was adherent laterally in the abdomen and was located where the appendix would normally be. He recalled that an abscess cavity was broken into and the infected, "pus-containing" organ that was removed was right in the middle of this abscess cavity. Dr. Stahl also recalled the residents stapling across the base of the infected organ and above the terminal ileum and the cecum and removing it. The Operative Report was dictated by Dr. Manning after the surgery and electronically signed by Dr. Stahl on June 23, 2011. The report documents the postoperative diagnosis as "acute on chronic appendicitis" and describes the dissected and removed organ as the appendix. Progress notes completed by the nursing staff record that on June 23, 2011, at 8:00 a.m., patient C.C. "denies pain," and that the laparoscopic incision is intact. Similar notes indicate that at 5:00 p.m. on June 23, 2011, patient C.C. "tolerated well reg diet" and was waiting for approval for discharge. Patient C.C. was discharged on June 24, 2011, a little after noon, in stable condition. On June 24, 2011, the Surgical Pathology Report indicated that the specimen removed from patient C.C. was not an appendix, but instead was an ovary and a portion of a fallopian tube. The report noted that inflammatory cells were seen. Surgery to remove an ovary is an oophorectomy and surgery to remove a fallopian tube is a salpingectomy. On Friday, June 24, 2011, Dr. Namias, chief of the Division of Acute Care Surgery, Trauma, and Critical Care, was notified by the pathologist of the results of the pathology report, because Dr. Stahl had left on vacation. Dr. Namias arranged a meeting with patient C.C. in the clinic the following Monday. At the meeting, patient C.C. made statements to Dr. Namias regarding her then-existing physical condition, including that she was not in pain, was tolerating her diet, and had no complaints. Dr. Namias explained to patient C.C. that her pain may have been caused by the inflamed ovary and fallopian tube or may have been caused by appendicitis that resolved medically, and she might have appendicitis again. He explained that her options were to undergo a second operation at that time and search for the appendix or wait and see if appendicitis recurred. He advised against the immediate surgery option because she was "asymptomatic." The second amended administrative complaints allege that Dr. Stahl and Dr. Manning performed a wrong procedure when they performed an appendectomy which resulted in the removal of her ovary and a portion of her fallopian tube. It is clear that Dr. Stahl and Dr. Manning did not perform an appendectomy on patient C.C. on June 23, 2011. Dr. Stahl and Dr. Manning instead performed an oophorectomy and salpingectomy. It was not clearly shown that an appendectomy was the right procedure to treat patient C.C. on June 23, 2011. The Department did convincingly show that patient C.C. had a history of medical problems and that she had earlier been diagnosed with appendicitis, had been suffering severe pain for 12 hours with associated nausea and vomiting, that she suffered from an infection in her right lower quadrant, that the initial diagnosis was acute appendicitis, and that the treatment that was recommended was an appendectomy. However, substantial evidence after the operation suggests that an appendectomy was not the right procedure. The infected and inflamed organ that was removed from the site of a prior abscess was not an appendix. After the procedure, patient C.C. no longer felt severe pain in her lower right quadrant, with associated nausea and vomiting. She was discharged the following day and was asymptomatic. It is, in short, likely that the original diagnosis on June 22, 2011, was incorrect to the extent that it identified the infected organ as the appendix. The pre-operative diagnosis that patient C.C.'s severe pain and vomiting were caused by a severe infection in an organ in her lower right quadrant was correct. Surgical removal of that infected organ was the right procedure for patient C.C. If that inflamed organ was misidentified as the appendix before and during the operation, that would not fundamentally change the correctness of the surgical procedure that was performed. The evidence did not clearly show that the wrong procedure was performed. It is more likely that exactly the right procedure was performed on patient C.C. That is, it is likely that an oophorectomy and salpingectomy were the right procedures to address the abdominal pain that caused patient C.C. to present at the JMH emergency room, but that the right procedure was incorrectly initially denominated as an "appendectomy," as a result of patient history and interpretation of the CT scan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, enter a final order dismissing the second amended administrative complaints against the professional licenses of Dr. Kenneth D. Stahl and Dr. Eddie Ward Manning. DONE AND ENTERED this 15th day of July, 2015, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 15th day of July, 2015.
