The Issue The issue to be determined is whether Respondent, Umesh Madhav Mhatre, M.D. ("Dr. Mhatre" or "Respondent"), has violated section 458.331(1)(t), Florida Statutes (2007), and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of the practice of medicine pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. Respondent is a licensed physician within the State of Florida, having been issued license number ME 27561 on September 13, 1976. He has never been the subject of disciplinary proceedings prior to this case. Respondent's address of record is 165 S.W. Vision Glen, Lake City, Florida 32025. Respondent is board-certified in adult psychiatry and child and adolescent psychiatry. Respondent practices in Lake City, Florida, and is the only full-time psychiatrist practicing there. He has served on the Board of Directors for the Lake City Medical Center, as chief of staff twice, as well as serving as the president of the Columbia County Medical Society. Dr. Mhatre was an instructor at the University of Florida from 1979 to 1980, followed by service as an adjunct clinical professor for University of Florida for the next 20 years. He is a consultant to the State of Florida, Division of Vocational Rehabilitation within the Department of Education, and has been a court-appointed psychiatrist for the Third, Fifth, Seventh and Eighth Judicial Circuits. Dr. Mhatre accepts all types of insurance, including Medicaid. He continues to treat patients after their insurance is depleted. From approximately March of 1999 through approximately May of 2008, Respondent treated patient S.C. S.C. was a patient experiencing moderate to severe mental illness. By history, she suffered from a psychotic disorder, most likely schizophrenia; post-traumatic stress disorder ("PTSD"), with significant personality dysfunction related to the trauma; obsessive-compulsive disorder ("OCD"); traits associated with a personality disorder; and history of alcohol abuse. S.C. had a history of sexual abuse by both her mother and her mother's psychiatrist, and physical abuse from her former husband and her son. Prior to her treatment with Respondent, she had experienced over 50 hospitalizations in a 10-year period. When she presented to Respondent, S.C. was experiencing auditory hallucinations and self-injurious behavior, such as cutting herself. Auditory hallucinations are the misperception that someone is hearing voices that are not really there. Self- injurious behavior is the conscious intent to hurt one's self but without the intent to die. Beginning in the spring of 2004, Respondent prescribed the psychotropic drug Geodon for S.C. Geodon is an anti-psychotic drug that is believed to block dopamine receptors, and impacts several different receptors in the nervous system. S.C. responded very positively to Geodon, and her auditory hallucinations and cutting behavior subsided while treated with the drug. During the time that Dr. Mhatre was treating S.C., he was also a speaker for Pfizer Pharmaceuticals, giving lectures on the benefits of Geodon. He had given those lectures since approximately 2001. The lectures were presentations to a small number of other mental health providers in an informal setting. Dr. Mhatre was paid for his presentations. Beginning at the end of 2005 through approximately March 20, 2008, S.C. participated in some of the seminars with Respondent, providing her experience with the use of Geodon compared to other psychotropic drugs that had been prescribed for her over the years. S.C. participated in six seminars with Respondent during this period of time. By contrast, according to Respondent's payment ledger submitted as Respondent's Exhibit 3, Respondent participated in approximately 31 presentations. There were times that S.C. told Dr. Mhatre that she could not attend a seminar because of a scheduling conflict, and from his view, her inability to appear did not cause any problems. Dr. Mhatre agreed to speak for Pfizer in part because, as the only full-time psychiatrist in Lake City, it gave him the opportunity to interact with other physicians in his field. It also gave him the opportunity to see the data provided by the pharmaceutical companies to the Food and Drug Administration. S.C. did not testify in this proceeding. According to Respondent, S.C. was a Medicaid patient and, after taking Geodon for approximately a year with great success, she had expressed concern that Medicaid might remove the drug from its formulary and stop paying for the Geodon. Respondent suggested that she speak to a Pfizer representative who was visiting his office, because Pfizer had some programs that assisted patients who could not afford their medications. Dr. Mhatre testified that as a result of S.C.'s discussions with representatives from Pfizer, they suggested that she participate in the lectures regarding Geodon, and she agreed to do so. Dr. Mhatre's explanation is unrebutted.1/ S.C. was reimbursed by Mhatre for travel expenses, but no other payments were made to her. Dr. Mhatre's compensation as a speaker was not affected by S.C.'s participation or lack thereof. He continued to speak for Pfizer until 2011, approximately three years after his treatment of S.C. ended. The presentations took time away from his office practice, so the compensation he received from Pfizer has been replaced by seeing more patients. There has been little difference in his income as a result of no longer speaking for the company. Dr. Mhatre discussed with S.C. the potential risks and benefits of appearing in the presentations. He felt participation could possibly raise her self-esteem and give her a feeling of self-control. Telling her story would give S.C. an opportunity to help other patients. On the other hand, he warned her that she could encounter some physicians who were not supportive and could be confrontational. Dr. Mhatre stated that, in the event such an issue arose, he would intercede for her. However, there is no indication that such a negative encounter ever occurred. With respect to those presentations where S.C. participated, generally, Dr. Mhatre would begin a program with a standard presentation regarding Geodon, and would show some slides related to the drug and its use with serious mental illness, such as bipolar disorder or schizophrenia. Then, S.C. would be given an opportunity to discuss her experiences in terms of her mental health history, to a degree; her poor response to other medications; and her robust response to Geodon. S.C.'s participation in the presentation lasted approximately ten minutes. Her identity was not revealed and details regarding her mental health history were very limited. S.C.'s last two visits with Dr. Mhatre were February 11, 2008, and May 12, 2008. At the February 11, 2008, visit, Dr. Mhatre's notes reflect that S.C.'s prescription for Prozac made her sleepy, stating in his objective assessment, Patient apparently continues to have some obsessive behavior in spite of 40 mg Prozac has not changed any rather she has become increasingly more tired and thus prefers to go back to 20 and deal with her obsession by doing more physical exercise. Dr. Mhatre noted that her treatment response was "adequate for psychosis, not for OCD." Her mental status is described as "shows moderately anxious with some impulsion to clean but no psychosis not suicidal has no urge to hurt herself." The treatment plan indicates that her Geodon will remain at 80 mg 2 tablets daily, and her Prozac would be decreased to 20 mg a day, with S.C. returning in three months. S.C. participated in her last Geodon presentation on approximately March 20, 2008. Her last visit with Dr. Mhatre was May 12, 2008. Her reported subjective assessment was that "I am doing alright." Dr. Mhatre's objective assessment states: The patient continues to do very well. She has not had any relapse of her hallucination. Neither has she had any urge to cut herself. Occasionally she has low moods but they are manageable. She is definitely not suicidal. Dr. Mhatre listed her mental status as "shows no overt psychoses, hallucination or delusion. Not suicidal or homicidal." Dr. Mhatre's treatment plan for S.C. was for her to return in three months, and to maintain her treatment as is. Dr. Mhatre did not associate with S.C. outside of the office setting and the Geodon presentations. He did not socialize with her before or after the presentations. Despite her apparent stability at the May 12, 2008, visit, on July 7, 2008, S.C. was admitted to Shands at Vista, a crisis stabilization unit. She was discharged on July 11, 2008. Her Discharge Summary includes the following: This is a 44-year-old divorced white female admitted voluntarily on a referral from her therapist, Dr. Earley, after reinitiation of cutting herself superficially on her right thigh for the last five days. The patient states that she has had a history of cutting behavior for eight years in her 30s. She was started on Geodon at that time and since then her obsession and compulsion of cutting has improved until the last six months. . . She also notes that a recent stressor in the last month has been strong encouragement by her physician toward doing speeches for the Geodon pharmaceutical company. The patient states that, however, her symptoms of obsessions and compulsions have been worsened in the last six months and she has been afraid to tell her psychiatrist. At that time, it had been close to two months since S.C. had seen Dr. Mhatre and three and a half months since she had appeared at a Geodon seminar. It is unclear how the seminars became a stressor in the last month, and S.C. was not at hearing to explain this comment in the discharge summary. During this hospitalization, Abilify and Lexapro were introduced into S.C.'s medication regimen and Geodon and Prozac were discontinued. She did not see Dr. Mhatre again, and began treatment with another psychiatrist. Dr. Mhatre's patient records for S.C. indicate on July 11, 2008, that he received a telephone call from a Dr. Earley in Gainesville who informed him that S.C. had decompensated and was admitted to Vista. His notes reported the following: Notation: I received a call from Dr. Earley in Gainesville, Florida. . . . Dr. Earley reports that while I was on vacation, S.C. had decompensated and ended up in Vista. Dr. Earley, however, was concerned that she felt because of S.C.'s discussions with me on Geodon subject to the physician and nurses group had compromised our doctor/ patient relationship and that S.C. no longer felt comfortable calling me when she was not doing well, fearful that I may get upset with her or that she may let me down. I discussed with Dr. Earley in that case we need to transfer her to another physician. Vista Pavilion has already taken the steps to set her up with another physician for further management. Also, discussed in that case the daughter who is under my care for depression may need to be seen by someone else as S.C. may find it difficult to come to the office with her. I expressed to Dr. Earley my significant surprise about S.C.'s decompensation and that in the past these talks had been a tremendous boost to her self-esteem and that she had done better than ever before. I urged Dr. Earley to explore other possibilities that may have caused decompensation. I also assured Dr. Earley that since she started having talks with me, I have repeatedly discussed with her her feelings about wanting to do these talks and there was never any pressure put on S.C. and she had voluntarily did [sic] these talks. In fact, I repeatedly assured Dr. Earley that she had felt much better now that she could educate other people who had helped her self-esteem tremendousely to the point that she had even started working at domestic violence shelter and wanted to pursue an career as a counselor and that it was my belief all along that this participation in the talks was very therapeutic for S.C. and tremendously enhanced her self-esteem. I have advised Dr. Earley that I will cancel S.C.'s next appointment and should there be any contact from S.C. with me that I will notify her. The medical records for Shands Vista indicate that S.C. began seeing Dr. Earley (whom she had seen in the past) one week before her admission to Shands Vista. Dr. Earley, who filed the complaint with the Department against Dr. Mhatre, did not testify in this proceeding. The Department contends that Respondent failed to meet the relevant standard of care by engaging in a boundary violation, which was exploitative and/or resulted in harm to S.C. In support of this contention, the Department presented the testimony of Jack Abramson, M.D. Dr. Abramson is a graduate of Laval University School of Medicine in Quebec City, Canada, and served his residency at Harvard Medical School. He has been in group practice in Miami, Florida, since 1990, and is board-certified in general psychiatry, and the subspecialties of geriatric psychiatry, addiction psychiatry and forensic psychiatry. Dr. Abramson is a diplomate of the American Board of Psychiatry and Neurology and a diplomate of the National Board of Medical Examiners and the American Board of Quality Assurance. He is also licensed in Louisiana, Texas, Iowa, Massachusetts, and Arizona. Dr. Abramson has an "eclectic" practice and sees patients as a private practitioner in South Florida. He does not accept Medicaid patients. Approximately one-third of his practice is devoted to forensic psychiatry. Dr. Abramson reviewed Dr. Mhatre's medical records for S.C. Insofar as the actual conduct of Dr. Mhatre in his office, and his notes, medical prescriptions, diagnoses and evaluations for S.C., he "found no issues." However, Dr. Abramson believed that Dr. Mhatre committed a boundary violation when he recruited S.C. to present her story in commercial presentations on behalf of a drug company. According to Dr. Abramson, the standard of care is well-accepted in the psychiatric community. When one is engaged with psychiatric patients in a doctor-patient relationship, it is inherently recognized that the relationship is one of unequals, and that the doctor holds a position of superiority and power over the patient, and therefore has a responsibility to strictly observe boundaries with respect to the relationship. When asked what constituted the actual violation or departure from the standard of care, Dr. Abramson opined that "the violation was that he got his patient to agree to present her story to commercial presentations on behalf of the drug company." However, there was no evidence presented that Dr. Mhatre persuaded S.C. to participate in the presentations. The only competent evidence presented indicates that a Pfizer representative made the suggestion to S.C. Dr. Abramson also testified that if no recruitment by Dr. Mhatre took place, and S.C. indicated that participation in the programs was something she wanted to do, then it was Dr. Mhatre's responsibility to discuss with her the possible straying outside the normal therapeutic limits and ramifications for treatment. Dr. Abramson acknowledged that there is no statute or rule specifically prohibiting the kind of conduct at issue in this case, as there is with sexual misconduct. He also acknowledged that allowing the participation of a patient in a presentation such as the one described here would not necessarily be a departure from the standard of care with respect to every patient, and in some cases, a patient could derive a benefit from participation. In his view, what makes it an issue with respect to S.C. is the extent of her illness. Because of the complexity of S.C.'s history, Dr. Abramson opined that she was an extremely fragile patient with whom boundaries must be extremely firm and concrete. Dr. Abramson also acknowledged that S.C. could experience a return of symptoms at any time whether she participated in the Geodon programs or not. He did not interview S.C. or evaluate her. Respondent presented the expert testimony of Lawrence Reccoppa, M.D. Dr. Reccoppa completed his undergraduate degree at Cornell University and his medical degree at the University of Florida. His residency was also completed at the University of Florida. He is board-certified in psychiatry and licensed to practice medicine in Florida since 1987. For the last 20 years, Dr. Reccoppa has served as a courtesy clinical professor for the University of Florida, supervising approximately two residents per year in his private practice, and works with the forensic fellows at the University who work in the prison system. 41. Dr. Reccoppa's private practice generally consists of an adult outpatient private practice, with patients of both sexes from age 16 to late in life. His patients include people with mood and/or anxiety disorders, and thought disorders or psychoses and personality disorders. He treats patients with auditory hallucinations and self-injurious behaviors. Dr. Reccoppa reviewed S.C.'s patient records from Dr. Mhatre and from Shands Vista. He saw nothing in S.C.'s medical records that indicated she did not have decision-making or informed consent capacity, and does not think that the Geodon seminars were a factor in her decompensation, stating that there can be multiple factors leading to a relapse. Dr. Reccoppa also attended one of the Geodon presentations at which S.C. appeared. The presentation that Dr. Reccoppa attended occurred in Gainesville sometime in 2007. It was attended by approximately 10 mental health professionals, including Dr. Reccoppa and several other psychiatrists, including two faculty members at the University of Florida (Dr. Carlos Muniz and Dr. Ross McElroy); a psychologist; and a mental health therapist. Dr. Reccoppa's description of the program varied very little from Dr. Mhatre's, with the exception of the order in which the presentation was structured. The differences were not material in terms of S.C.'s participation. He recalled that S.C. discussed problems she had experienced with weight gain and sedation with other medications, and her experience with Geodon. It did not appear that she was uncomfortable or forced to relive any trauma from her past during the program, and she gave no indication that she was anxious about participating in the program. To the contrary, she appeared to be comfortable in front of the approximate ten attendees. According to Dr. Reccoppa, the attendees were very accepting of her participation and told her that they were grateful that she attended and shared her experience. He recalled S.C. stating that she felt comfortable doing it and that it was a positive experience for her to be able to express some of her problems with medications and the positive experience she had had with Geodon, with the hope that she could help other providers care for their patients. Dr. Reccoppa opined that it is possible for a patient like S.C. to derive a therapeutic benefit from appearing at a program like the Geodon program, as it could provide a positive effect on the patient's self-esteem to be able to speak to an empathetic group who could provide positive feedback. Such a patient could also benefit from the idea that he or she was helping others. Dr. Reccoppa compared the presentation to grand rounds, and has attended other, similar programs, both at the University of Florida and at the Department of Corrections. He described grand rounds at the university as a situation where several faculty members attend a meeting in which a presentation is given about a disease state, a medication, or where a patient is interviewed to discuss his or her history and course of treatment. While Dr. Abramson testified that there are ethics panels through which patients would be screened for participation in a grand rounds setting, Dr. Reccoppa was not aware of such a requirement. In fact, Dr. Reccoppa stated that the complexity of S.C.'s situation made her appropriate for a grand round setting, because a simple patient does not present the same educational opportunity. Dr. Reccoppa's testimony is credited. Dr. Reccoppa did not believe that allowing S.C. to participate in the Geodon presentations was a violation of the appropriate standard of care, and did not believe that Dr. Mhatre had committed a boundary violation. He knew of no peer-reviewed or authoritative literature that would indicate that it would be departure from the standard of care for a patient to participate with his or her psychiatrist in a pharmaceutical company- sponsored program. Dr. Reccoppa opined that a boundary violation that would represent a practice below the applicable standard of care would occur when a psychiatrist becomes involved with a patient in a manner that does not encompass the doctor-patient relationship, and involves co-mingling outside of the professional setting, such as dating, socializing or investing with a patient. Dr. Mhatre did not engage in this type of behavior with S.C. After careful review of the expert testimony presented, Dr. Reccoppa's opinion is more persuasive as applied to the evidence in this case. Dr. Abramson, while a fine psychiatrist, is not a reasonably prudent similar physician practicing under similar circumstances. His practice is in a metropolitan setting and he does not see Medicaid patients. Dr. Mhatre is the only full-time psychiatrist in a much more rural area and sees all types of patients, regardless of insurance. Dr. Reccoppa had actually observed S.C. and saw her behavior during one of the presentations at issue. Given the totality of the evidence, it is found that there was no violation of the relevant standard of care with respect to Dr. Mhatre's care and treatment of patient S.C.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Medicine enter a Final Order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 20th day of November, 2012, 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 20th day of November, 2012.
The Issue Whether the Respondent violated Section 458.331(1)(m), Florida Statutes, which requires a physician to keep legible medical records on Patient S.W., during the period August 20, 1992, through November 1992. Whether Respondent violated Section 458.331(1)(t), Florida Statutes, which prohibits gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, where Respondent performed surgery that was not necessary and/or failed to diagnose and treat a postoperative infection that resulted in necrosis of the Patient S.W.'s turbinates.
Findings Of Fact Respondent, Robert Peter Filiberto, is and has been, at all times material hereto, a licensed physician in the State of Florida, having been issued license no. ME 0032703. Respondent maintains offices in Palm Bay and Sebastian, Florida. Respondent is board certified in otolaryngology and head/neck surgery. S.W., a 46 year-old adult female, was referred on March 25, 1991, to Respondent with complaints of "chronic bronchitis." Physical examination revealed the following: Mild polypoid changes of both vocal chords, 2+ rhinitis, with 3+ post nasal drainage. Respondent diagnosed the patient as suffering from allergic rhinitis with a post nasal drainage, which precipitated her chronic cough. S.W. returned to Respondent on August 20, 1992, having fallen and suffered a broken nose. Respondent diagnosed a comminuted (multiple) fracture and septal deformity. Respondent recommended surgical correction. On August 26, 1992, S.W. executed a Surgical Contract for a "septorhinoplasty and bilateral turbs" and also executed a Surgical Consent Form as follows: I consent to the performance of operations and procedures in addition to or different from those now contemplated, whether or not arising from presently unforeseen conditions, which Dr. Filiberto may consider necessary or advisable in the course of the operation. * * * The nature and purpose of the operation, possible alternative methods of treatment, the risks involved, the possible consequences and the possibility of complications have been fully explained to me by Dr. Filiberto or his assistant. These may include infection, loss of function, disability, scar formation, pain, bleeding, and possibility of recurrence. I acknowledge that no guarantee or assurance has been given by anyone as to the results that may be obtained. Dr. Filiberto assured me he would fix my nose and I would be happy. (Final sentence added by S.W.) On or about September 18, 1992, Respondent performed septorhinoplasty (plastic surgery of the nose and septum, the cartilage between the nostrils), with bilateral inferior turbinectomy (removal of the lower moisturizing membranes inside the nose) on S.W. at Humana Hospital - Sebastian. Respondent removed a portion of both inferior turbinates. The right inferior turbinate was manually resected (cut) with superficial electrocauterization used to control bleeding. The left inferior turbinate was fulgurated using an intramural electrocautery technique. The surgery proceeded without complication. Following the operation, the hospital pathology report confirmed Respondent's diagnosis: chronically inflamed hypertrophied nasal turbinates. Respondent's post-operative report indicates he intended to remove only the lower two-thirds of Patient S.W.'s turbinates. Respondent's performance of surgical electocautery is not mentioned in Respondent's medical records until Patient S.W.'s visit on or about November 13, 1992. Between September 21, 1992, through November 20, 1992, Respondent saw Patient S.W. for postoperative follow-up examinations. During her postoperative visits, S.W. complained of pain, a greenish discharge, and a bad smell numerous times. When the symptoms did not cease, Respondent prescribed antibiotics on October 22, 1992, approximately four weeks after surgery. After approximately three weeks on the antibiotics, the pain, discharge, and smell continued. Respondent prescribed more of the same antibiotics. Between on or about September 21, 1992, through on or about November 11, 1992, Respondent's medical records described S.W.'s nose as clear. Between on or about September 21, 1992, through on or about November 11, 1992, Respondent's medical records indicate no postoperative infection. However, the patient had an infection that was impervious to the antibiotics that Respondent had first prescribed. When that became apparent, Respondent failed to order a culture. Patient S.W. subsequently transferred her case to another physician and underwent extensive treatment by other physicians for tissue necrosis and osteonecrosis (infectious destruction of bone), including removal of necrotic tissue and intravenous antibiotics. Patient S.W.'s subsequent treating physicians discovered that her turbinates were completely missing. S.W. now has severely limited senses of smell and taste. She suffers from chronic pain and sinus headaches. She experiences nightly discharges of thick mucous, and numbness of certain parts of her face. Expert witnesses speculated that the turbinates were missing, either because Respondent had removed them entirely, which is not standard practice and is not reflected in his medical notes, or because he allowed the infection to continue so long that necrosis destroyed whatever portion of the turbinates had not been removed. Respondent's medical records do not justify his course of treatment of Patient S.W. Respondent's medical records inadequately document Patient S.W.'s history and physical condition or amounts and frequencies of antibiotics prescribed. The records also do not justify Respondent's delay in diagnosing Patient S.W.'s developing post-operative infection. The evidence is not clear and convincing that Respondent performed inappropriate nasal surgery on Patient S.W. on September 18, 1992. A reasonably prudent similar physician would not have failed to timely diagnose and treat Patient S.W.'s developing postoperative infection.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Medicine issue a final order that: Finds the Respondent guilty of failure to keep legible medical records that justified the course of treatment for Patient S.W. during the period August 1992 through November 1992, in violation of Section 458.33(1)(m), Florida Statutes. Finds the Respondent not guilty of gross malpractice or the failure to practice medicine within that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances in regard to the diagnosis and surgery performed on Patient S.W., on September 18, 1992. Finds the Respondent guilty of gross malpractice or the failure to practice medicine within that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances in regard to the treatment of the Patient S.W. for the postoperative infection that resulted in necrosis of the Patient's turbinates in the period September through November 1992, in violation of Section 458.331(1)(t), Florida Statutes. Finds that Respondent has established mitigation as to Count I, in that his current procedures for the generation of medical records are in compliance with statutory and regulatory requirements. Suspends Respondent's license to practice medicine for a period of three months, followed by a period of probation under such terms and conditions as the Board may require; and imposes an administrative fine of $5,000, plus the costs of prosecuting this complaint. DONE AND ENTERED this 26th day of February, 1999, in Tallahassee, Leon County, Florida. COPIES FURNISHED: J. Charles Ingram, Esquire DANIEL M. KILBRIDE 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 26th day of February, 1999. Hannah, Voght, Estes & Ingram, P.A. Post Office Box 4974 Orlando, Florida 32802-4974 John O. Williams, Esquire Maureen L. Holz, Esquire Williams & Holz, P.A. 355 North Monroe Street Tallahassee, Florida 32301 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast Bin A-02 Tallahassee, Florida 32399-1703 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A-02 Tallahassee, Florida 32399-1703
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the Amended Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and documentary evidence received at the hearing, I make the following findings of fact: The Department is the state agency charged with the regulation of the practice of medicine in Florida. At all times material to the allegations in the Amended Administrative Complaint, Respondent has been a licensed physician, in the State of Florida, license number ME 0027088. Respondent is board certified in three areas of specialty: gastroenterology, radiology, and internal medicine. Respondent is on the staff of several hospitals in the Palm Beach County region. From March 28, 1986, until April 4, 1986, Respondent treated Goldie Marshak. At the time of such treatment, Mrs. Marshak was a seventy-one year old in good health. Mrs. Marshak had been referred to Respondent by Dr. Neil Katz. Dr. Katz was Mrs. Marshak's regular physician who had unsuccessfully treated her for persistent gas and burping. In accordance with Mrs. Marshak's health plan guidelines, Dr. Katz had referred her to Respondent, a specialist in similar disorders, for additional diagnosis. The referral form indicated Mrs. Marshak suffered from persistent stomach pain and gas. Attached to the referral were the results from a prior upper GI series which established there were no abnormalities of the upper gastrointestinal tract. Respondent first met with Mrs. Marshak on March 28, 1986. At the initial visit Mrs. Marshak completed a form which identified her current problem as "burping and rectal gas as soon as I eat. Some pain upper chest that has diminished." In addition, Mrs. Marshak supplied a social history, a past medical history, drug allergy, operations, injury, hospitalizations, family history, immunizations, and a general review of systems. No other records prepared on that date were retained. There are no records from which it can be determined what physical examination, if any, Respondent gave to Mrs. Marshak on March 28, 1986. Apparently, after reviewing the referral form and discussing her symptoms with Mrs. Marshak, Respondent elected to schedule her for a procedure called a flexible sigmoidoscopy. After conferring With Dr. Katz, whose consent was required for health plan purposes, the procedure was set to be performed April 3, 1986. Mrs. Marshak was given instructions regarding preparations required in order for the examination to be performed. When Mrs. Marshak returned to Respondent's office on April 3, 1986, she had successfully followed the instructions and was ready for the proposed procedure. Mrs. Marshak was given an authorization form which she signed in the presence of Marina Harmon. Mrs. Harmon was an unlicensed employee who assisted Respondent by escorting patients to the procedure room, having them sign the authorization form, and by explaining the procedure to be performed. The authorization form signed by Mrs. Marshak authorized Respondent to perform a flexible sigmoidoscopy. The form did not disclose risks or inherent dangers regarding the procedure but did provide the following: The motive and purpose of the diagnostic procedure, possible alternative methods, the risks and possible consequences involved, and the possibility of complications have been fully explained to me. I acknowledge that no guarantee or assurance has been made as the results that may be obtained. I also specifically authorize the physician, or his designee, to perform such additional procedures or render such treatment as he may, in his professional judgement deem necessary in the event any unforeseen condition arise during the course of the consented-to- diagnostic procedure that would put the patient's (my) well-being in jeopardy. A flexible sigmoidoscopy is a procedure whereby an instrument is inserted into the rectum and is then passed up the colon the desired distance. The length the instrument is extended specifies what the procedure is called. A flexible sigmoidoscopy involves looking into the rectum and the sigmoid colon only. A colonoscopy looks into the digestive tract beyond an anatomical portion of the colon called the splenic flexure. A left-sided colonoscopy involves looking into the lower digestive tract beyond the sigmoid colon but not beyond the splenic flexure. In terms of length, the flexible sigmoidoscopy would be the shortest procedure of the three described. On April 3, 1986, Respondent performed a colonoscopy on Mrs. Marshak which resulted in a perforation of her colon. This perforation would have occurred regardless of the procedure performed since the tear was located approximately twenty centimeters into the colon. During and following the procedure, Mrs. Marshak complained of extreme pain. Respondent presumed the pain to be that typically experienced during the procedure. The pain which continued after the instrument was removed, Respondent attributed to trapped gas within the colon which would be passed naturally in the hours following the procedure. Respondent sent Mrs. Marshak home for rest and advised her that the procedure had not revealed any abnormal condition in the area examined. Once home, Mrs. Marshak continued to have pain and discomfort. Her husband, Kalman Marshak, telephoned Respondent's office to advise of his wife's continued suffering. Respondent did not speak with either of the Marshaks' but did telephone a prescription for Tylenol with Codeine to their pharmacy. Mr. Marshak picked up the drug and administered it to his wife as directed. Codeine is an improper drug to prescribe for a patient who may be retaining gas since it inhibits parastoltic activity of the bowel. Respondent should have discussed the patient's symptoms with her to ascertain whether or not the pain suffered warranted further examination or emergency treatment. Despite the drug, Mrs. Marshak's pain continued through the night. On the morning of April 4, 1986, Mr. Marshak again telephoned Respondent's office to advise them of his wife's discomfort. The Marshaks were given an appointment for three o'clock that afternoon. The delay in setting the appointment or referring the patient for emergency treatment was inappropriate. At the time of her revisit, Mrs. Marshak had a distended abdomen with some tenderness. Respondent took x-rays of the area and reinserted the colonoscope a very short distance in an effort to expel what Respondent believed to be trapped gas in the colon. The procedure did not relieve Mrs. Marshak's pain and she was advised to go to the hospital for further treatment. Subsequent to Mrs. Marshak leaving the office, Respondent read the x-rays and discovered the perforation. Respondent immediately telephoned the emergency room to advise the physician on duty of Mrs. Marshak's condition and her need for attention. The perforation required surgery which resulted in Mrs. Marshak having to wear a colostomy bag for several months. Afterwards, a second surgery restored her colon to allow normal elimination. At the time of the final hearing, Mrs. Marshak had completely recovered from the perforation. On April 8, 1986, Respondent prepared a letter to Dr. Katz which outlined the treatment given to Mrs. Marshak. Any notes or other records used to prepare the letter were destroyed. The x-rays taken at Respondent's office on April 4, 1986, were lost and were, therefore, unavailable. According to Respondent, the missing x-rays were very similar to the ones taken at the hospital when Mrs. Marshak arrived on April 4, 1986. The Respondent did not obtain a consent form or written authorization for the procedure performed on April 4, 1986. The reinsertion of the instrument into the rectum was inappropriate since the x-rays clearly showed the perforation. Other than the letter written to Dr. Katz, Respondent did not maintain any medical records for the treatment he gave to Mrs. Marshak on March 28, April 3, and April 4, 1986.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Professional Regulation, Board of Medicine, enter a Final Order which finds Respondent guilty of the violations alleged in Counts I and IV of the Amended Administrative Complaint, dismisses Counts II and III, imposes an administrative fine in the amount of $1000, places Respondent on probation for a period of two years, and requires Respondent to attend such continuing education courses as may be deemed appropriate by the Board. DONE and RECOMMENDED this 15th day of April, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH 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 15th day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3397 Rulings on Petitioner's proposed findings of fact: Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 are accepted. To the extent paragraph 11 describes a colonoscopy as "more invasive" the paragraph is accepted. However, as to all of the examinations performed (colonoscopy, flexible sigmoidoscopy or left-sided colonoscopy) the basic description is similar. Consequently "more extensive explanation "is not required. Thus the balance of paragraph" is rejected as contrary to the evidence. Paragraph 12 is rejected as contrary to the weight of the evidence. Paragraph 13 is accepted. Paragraph 14 is accepted however it must be noted that such explanations given by Harmon are in supplement to those given by Rothenberg. Paragraph 15 is accepted but is unnecessary. Paragraphs 16 and 17 are accepted, however, see note above re: paragraph 14. Paragraphs 18 and 19 are accepted. Paragraph 20 is rejected as argument, irrelevant and immaterial. Paragraphs 21, 22, 23, 24 and 25 are accepted. Paragraphs 26, 27 and 28 are accepted with the note that the communications addressed were with Respondent's office. There is no evidence that Respondent personally spoke with Mr. Marshak to determine the patient's condition. Paragraph 29 is rejected as contrary to the evidence. It was inappropriate to delay the revisit until 3 o'clock, but there is no evidence Respondent made that decision. Based upon the testimony, The more appropriate course would have had Respondent discuss the situation directly with the patient (or her husband) and to schedule the revisit as soon as possible or have the patient go to the hospital. Paragraph 30 is accepted. Paragraphs 31, 32, and 33 are accepted. Paragraph 34 is rejected as repetitive and unnecessary. Paragraph 35 is rejected as contrary to the evidence. Paragraph 36 is rejected as irrelevant immaterial and assuming facts not in evidence. Paragraphs 37, 38, 39, 40, 41, 42, and 43 are accepted. Paragraphs 44, 45, 46, and 47, are rejected as argumentative or contrary to the weight of the evidence. Paragraphs 48 and 50 are rejected as argumentative. Paragraph 49 is accepted. Rulings on Respondent's proposed findings of fact: Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11 are accepted. With regard to paragraph 12 the area of the perforation was between 15- 25 centimeters according to the weight of the evidence. Paragraphs 13 and 14 are accepted. Paragraph 15 is rejected as contrary to the weight of the evidence as to "reread." That paragraph with the word "read" for "reread" would be accepted. Paragraphs 16, 17, 18, and 19 are accepted. COPIES FURNISHED: Susan Branson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Charles A. Nugent, Jr., Esquire Cone, Wagner, Nugent, Johnson, Roth & Romano Servico Centre-Suite 300/400 1601 Belvedere Road West Palm Beach, Florida 33406 Dorothy Faircloth, Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
