The Issue The issues in this case for determination are whether Respondent Samuel Cox, M.D., committed the violations of Chapter 458, Florida Statutes, as alleged in an Administrative Complaint filed by the Department of Health on November 18, 2006; and, if so, what disciplinary action should be taken against his license to practice medicine in Florida.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 458, Fla. Stat. Respondent, Samuel Cox, M.D., is, and was at the times material to this matter, a physician licensed to practice medicine in Florida, having been issued license number ME 77851 on April 22, 1999. Dr. Cox's mailing address of record at all times relevant to this matter is 2438 East Commercial Boulevard, Fort Lauderdale, Florida 33308. Dr. Cox is a board-certified general surgeon who has specialized his practice to bariatric surgery. He has performed bariatric surgery since 1985, performing approximately 3,000 such surgeries since that time. Dr. Cox has performed approximately 214 Roux-en Y procedures in Florida. No evidence that Dr. Cox has previously been the subject of a license disciplinary proceeding was offered. Bariatric Surgery. Bariatric surgery, also known as gastro-bypass surgery, is a type of surgery performed on morbidly obese patients to assist them in losing weight. In order to be found to be morbidly obese and, therefore, to be considered a candidate for the procedure, a patient must be found to have a Body Mass Index greater than 40. Body Mass Index is a measure of body fat based on height and weight (weight in kilograms divided by the square of height in meters). For example, a six-foot-tall individual weighing 296 pounds would have a Body Mass Index of 40.1. See http://www.nhlbisupport.com/bmi/. A patient with a Body Mass Index of 35 may also be considered a candidate for the surgery if they present with certain comorbidities associated with obesity. Comorbidities are physical problems associated with obesity and include diabetes, lung problems, heart problems, and high blood pressure. The more comorbidities a patient has, the higher the risk is to that patient from bariatric surgery. While there is more than one type of bariatric surgery, at issue in this case is a procedure known as Roux-en-Y gastric- bypass surgery (hereinafter referred to as "RNY Surgery"). RNY Surgery is a surgical method of creating a reduced-sized stomach. This reduced-sized stomach is created by removing a small portion of the stomach, where the esophagus (which brings food from the mouth to the stomach) attaches to the stomach, from the larger remaining portion of the stomach. The small portion of the stomach attached to the esophagus is then formed into a pouch, creating a much smaller stomach. The remaining larger portion of the stomach is completely by-passed. Often a device called a silastic ring is used at the bottom of the newly created stomach to help the pouch maintain the desired size and prevent it from stretching into a larger pouch. A portion of the small intestine is attached to the bottom of the newly created stomach. Approximately 150 centimeters down the small intestine, the excluded or removed portion of the stomach, the liver, and the pancreas are connected back to the intestine. This allows digestion of food to continue, but reduces the amount of digestion that previously occurred in the 150 centimeters of the intestine which are bypassed. RNY Surgery allows a patient to lose weight in two ways: first, by limiting the amount of food the patient can eat; and secondly, by reducing the absorption of nutrients by bypassing part of the intestine. The most common and serious complication of RNY Surgery is a leak at the gastrojejunal anastomosis, or the point where the newly created stomach pouch (the gastro) is connected to the intestine (the jejunal)(a gastrojejunal anastomosis leak will hereinafter be referred to simply as a "Leak"). This complication may be evidenced by several symptoms exhibited by a patient. Surgeons performing bariatric surgery must look for these symptoms. The typical symptoms of a Leak include left shoulder pain (caused by pooling of the leakage under the diaphragm which causes irritation which manifests as left shoulder pain), decreased urine output, fever, shortness of breath, and high heart rate. Some manifestations of a Leak, such as atrial fibrillation, are indirect signs of a Leak in that they are associated with the stress on the body caused by the Leak. Dr. Cox's Treatment of Patient W.T. Patient W.T. presented to Dr. Cox for bariatric surgery. W.T., a male, was 47 years of age at the time and was morbidly obese. W.T. weighed 458 pounds and had a Body Mass Index of Because his Body Mass Index exceeded 50, he was considered "super" morbidly obese. He also had the following comorbidities: high blood pressure, sleep apnea, congestive heart failure, thrombophlebitis, pulmonary eboli, diabetes, and gatroesophageal reflux disease. There is no dispute that W.T. was an appropriate candidate for bariatric surgery. W.T. underwent RNY Surgery on August 31, 2005. During the surgery, Dr. Cox experienced difficulty seeing, due to the size of W.T.'s liver, the staples which he used to connect the intestine to the bottom of the newly formed stomach. Instead of confirming the placement of the staples, he was required to assess the staples with his fingers. This should have made him more sensitive to the possibility of a Leak. Before ending the surgery, Dr. Cox performed a test called a methylene blue test. To perform this test, an anesthesiologist puts medicine down a tube which passes through the patient's nose and into the new stomach. The physician then looks for any sign of a leak where the physician has sewn or stapled the small intestine to the stomach. With W.T., the methylene blue test did not disclose any leaks. The day after W.T.'s bariatric surgery, September 1, 2005, W.T. began to complain of pain in his left shoulder which is an important symptom of a Leak. W.T. also experienced decreased urine output during the night (he had, however, "responded well to fluid increases and diuretics"), and a low- grade fever, which are also indicators of a Leak. Although pain is a normal response to any operation, pain in the shoulder for the type of non-laparoscropic bariatric surgery performed by Dr. Cox should have made Dr. Cox more concerned than he apparently was as to the cause. The normal pain response to the type of operation Dr. Cox performed would be expected where the incision was made, but not in the shoulder. Dr. Cox treated W.T.'s shoulder pain with narcotic analgesia by a patient-controlled analgesia pump. He treated the decreased urine output with increased fluids and a diuretic (Mannitol). The fever was treated with Tylenol. Although the left shoulder pain, decrease in urine output, and low-grade fever could have been indicative of a Leak, Dr. Cox made no note in the patient records that he had considered the possibility that W.T. had a Leak, prematurely ruling out the possibility of a Leak. Dr. Cox suggested that the left shoulder pain was related to a diaphragmatic irritation caused by the use of surgical instruments on the diaphragm and that the urine output decline could have been attributable to the impact on W.T.'s kidneys by his diabetes. While these might have been appropriate considerations at the time, Dr. Cox could have not known for sure what was causing W.T.'s symptoms and, therefore, should have considered all the possible causes of these symptoms, especially the possibility of a Leak. On the second post-operative day, September 2, 2005, W.T. exhibited an abnormal heart rhythm, called atrial fibrillation. With a normal heart rhythm, the atrial (the first two of the four heart chambers) contracts, followed by contraction of the ventricles (the other two heart chambers). Atrial fibrillation is an abnormal heart rhythm characterized by a failure of the atria to completely contract. The fact that W.T., who had no prior history of atrial fibrillation, was evidencing atrial fibrillation on post-operative day two should have raised a concern about what was happening to W.T., including, but not limited to, the possibility of a Leak. W.T. was also experiencing an abnormally high heart rate of 148, which could have also been indicative of a Leak. Dr. Cox continued to treat W.T.'s shoulder pain with narcotic analgesia and the decreased urine output with increased fluids and Mannitol. He treated the elevated heart rate with Cardizem, a medicine used to slow the heart. W.T.'s shoulder pain appeared to decrease, which was to be expected given the course of treatment ordered by Dr. Cox. Dr. Cox had not, however, appropriately determined the cause of the pain. Again, nothing in Dr. Cox's medical records indicates that he considered the possibility that W.T.'s various symptoms might be indicative of a Leak. Nor did he take any action, such as an upper gastrointestinal test, to rule out the possibility of a Leak. To perform a gastrointestinal test, a patient drinks a water-soluble contrast called Gastrografin and a radiologists takes serial pictures of the patient, which show the contrast as it moves down the esophagus and then crosses through the anastomosis of the pouch and intestine. From these pictures, it can be determined whether the anastomosis is open and functioning properly and whether any of the contrast leaks outside of the new stomach-intestine path. The test is not fool-proof, but it is an appropriate diagnostic tool for Leaks. Dr. Cox suggests that the atrial fibrillation and high heart rate could have simply been a recognized complication of any stress W.T., with his borderline cardiac status, was experiencing. Again, while these might have been appropriate considerations at the time, Dr. Cox could have not known for sure what was causing W.T.'s symptoms and, therefore, should have considered all the possible causes of these symptoms, especially the possibility of a Leak. On the third post-operative day, September 3, 2005, air and serosanguinous fluid were observed seeping from W.T.'s abdominal incision. The existence of air may be evidence of a Leak. Although some air gets into the abdominal cavity during surgery, it is usually absorbed by the body very, very quickly. Air coming from an incision on post-operative day three suggests a hole in the intestine. Dr. Cox responded to the finding of air coming from the abdominal incision by ordering a methylene blue swallow, where W.T. swallowed a small amount of blue dye. Blue dye was then seen either coming out of the incision or drains placed in W.T.'s abdomen. Either way, the test was "positive" indicating a leak in W.T.'s intestine. Dr. Cox correctly took W.T. back into surgery. He discovered and corrected a Leak which had been caused by failure of the staples used in W.T.'s surgery. Although much was made as to when the staples failed, that evidence was not conclusive nor is it necessary to resolve the dispute. Whether the staples failed immediately after surgery or at some later time does not excuse Dr. Cox's failure to appropriately react to signs exhibited by W.T. which could have indicated that W.T. had a Leak. This case does not turn on whether a Leak actually existed. It turns on whether Dr. Cox appropriately considered the possibility of a Leak and took the steps medically necessary. With W.T., he did not. Dr. Cox's error was not in failing to find the Leak earlier; it was in failing to properly consider the possibility of a Leak when W.T. exhibited signs that should have prevented Dr. Cox from, with reasonable medical certainty, ruling out the possibility that a Leak was present. For this reason, the fact that a Leak was ultimately found is of little importance in deciding whether the charges leveled against him in the Administrative Complaint are accurate. Even if no Leak had ultimately been found, Dr. Cox's failure to properly respond to the potential of a Leak evidenced by W.T.'s symptoms was inconsistent with the standard of care. Dr. Cox's Treatment of Patient J.L. Patient J.L. presented to Dr. Cox for bariatric surgery. J.L., a male, was 35 years of age at the time and was morbidly obese. J.L. weighed 417 pounds and had a Body Mass Index of Because his Body Mass Index exceeded 50, he was considered "super" morbidly obese. He also had the following comorbidities: high cholesterol, stress incontinence, depression, anxiety, high blood pressure, gastroesophageal reflux disease, and shortness of breath on exertion associated with asthma. There is no dispute that J.L. was an appropriate candidate for bariatric surgery. J.L. underwent RNY Surgery on August 4, 2005. Dr. Cox also removed J.L.'s gallbladder. Before ending the surgery, Dr. Cox performed a methylene blue test. The methylene blue test performed on J.L. did not disclose any leaks. On the first post-operative day, August 4, 2005, J.L.'s heart rate was as high as 155 (anything over 120 is problematic), was experiencing decreased oxygen saturation of 89 percent (95 percent to 98 percent are considered normal saturation levels), had increased BUN and creatinine levels, and his urine output was borderline low. The increased BUN and creatinine, indicative of a problem with the kidneys, were are not being perfused well. J.L. was also complaining of right shoulder pain. Dr. Cox's note concerning the right shoulder pain specifically notes that it was not the "left" shoulder, which suggests that Dr. Cox was aware of the significance of left shoulder pain. J.L.'s high heart rate and low oxygen saturation level were considered significant enough to return him to the intensive care unit. On the second post-operative day, August 5, 2005, J.L.'s BUN and creatinine levels rose higher. That evening J.L. had a high heart rate. His urine output level, which Dr. Cox had treated with a diuretic and increased fluids, had improved. J.L. also became agitated and restless. He began to constantly request water. Dr. Cox eventually ordered, however, that J.L. not be given water. Dr. Cox failed to note in his records that he considered the possibility that J.L. had a Leak. Instead, Dr. Cox focused on the possibility that J.L. was suffering from rhabdomyolysis, a malfunction of the kidneys caused by the breakdown, as a result of surgery, of muscle tissue into cells too large in size for the kidneys to process. Dr. Cox ordered a CK test which found elevated creatine phosphor kinase or CPK, a marker of muscle death. Dr. Cox then consulted with a nephrologists. While the symptoms evidenced by J.L. could have very well been a result of rhadbodmyolysis, they also could have been symptomatic of a Leak. Dr. Cox did not have adequate information on August 5, 2005, to conclusively find that J.L. was suffering from rhadbodmyolysis and, more importantly, not from a Leak. As of the second post-operative day, J.L. was exhibiting a high heart rate, low urine output, pain in his right shoulder, a worsening oxygen saturation level and hunger for air, and a changed mental status (anxiety and combativeness). Due to these symptoms, Dr. Cox should have considered the possibility of a Leak, rather than merely concluding that J.L. was suffering from rhabdomyolysis and treating J.L.'s individual symptoms. On the third post-operative day, August 6, 2005, J.L.'s condition worsened. His agitation and combativeness due to his thirst and air hunger worsened. J.L. was treated with Haldol, a psychiatric medication. Dr. Cox continued to suspect rhadbdomyolysis and to ignore the possibility of a Leak. On the fourth post-operative day, August 7, 2005, at approximately 15:30, pink-tinged fluid was seen draining from J.L.'s incision. A pulmonologist consulting on J.L.'s case was the first to suggest the possibility of a Leak, questioning whether the entire clinical picture pointed to intra-abdominal sepsis due to a Leak. It was not until the drainage from J.L.'s incision that Dr. Cox first considered the possibility of a Leak. Even then, Dr. Cox did not return J.L. to surgery until August 7, 2005, where a Leak was found and repaired. Dr. Cox's error in his treatment of J.L., like his error in his treatment of W.T., was not in failing to find the Leak earlier, but in failing to properly consider the possibility of a Leak when J.L. exhibited signs which should have prevented Dr. Cox from, with reasonable medical certainty, ruling out the possibility that a Leak was present. For this reason, the fact that a Leak was ultimately found is of little importance in deciding whether the charges leveled against him in the Administrative Complaint are accurate. Even if no Leak had ultimately been found, Dr. Cox's failure to properly respond to the potential of a Leak, evidenced by J.L.'s symptoms, was inconsistent with the standard of care. Dr. Cox's explanation at hearing as to why he waited from August 5, 2005, when it was apparent that J.L. had a Leak, until August 7, 2005, to repair the Leak, is not contained in Dr. Cox's medical records. The Standard of Care. The Department's expert, Christian Birkedal, M.D., credibly opined that Dr. Cox failed to practice medicine in accordance with the level of care, skill, and treatment recognized in general law related to health care licensure in violation of Section 458.331(1)(t), Florida Statutes (hereinafter referred to as the "Standard of Care"), in his treatment of W.T. and J.L. In particular, it was Dr. Birkedal's opinion that Dr. Cox violated the Standard of Care as to W.T. by failing to recognize W.T.'s signs and symptoms of a Leak and by failing to perform a post-operative upper gastrointestinal test on W.T. once he evidenced those signs. Dr. Birkedal's opinion is credited and accepted. As to J.L., Dr. Birkedal's opinion that Dr. Cox violated the Standard of Care by failing to recognize the signs and symptoms of a Leak for two days post-operatively is credited and accepted. The opinions to the contrary offered by Dr. Cox and his witnesses as to W.T. and J.L. are rejected as not convincing and as not addressing the issue precisely enough. The opinions offered by Dr. Cox and his witnesses with regard to both patients were essentially that the various symptoms pointed to by Dr. Birkedal were not "evidence" of a Leak. Those opinions do not specifically address the issue in this case. Dr. Cox and his witnesses based their opinions on whether Dr. Cox should have "known" there was a Leak at the times in issue. That is not the charge of the Administrative Complaint or the basis for Dr. Birkedal's opinion. The question was, not whether Dr. Cox should have known there was a Leak, but whether he should have considered a Leak as a possible cause for the symptoms exhibited by W.T. and J.L. Additionally, and finally, Dr. Birkedal based his opinions, not by looking at the record as a whole, as did Dr. Cox and his experts, but by looking at only those records in existence at the times relevant to this matter. In this way, Dr. Birkedal limited himself to a consideration of what Dr. Cox knew about his patients at the times relevant in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine finding that Samuel Cox, M.D., has violated Section 458.331(1)(m) and (t), Florida Statutes, as alleged in Counts I, II, and III of the Administrative Complaint; issuing a reprimand; placing his license on probation for two years, with terms to be established by the Board; and imposing a fine of $15,000. DONE AND ENTERED this 19th day of June, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 19th day of June, 2007. COPIES FURNISHED: Patricia Nelson, Esquire Assistant General Counsel Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3250 Jonathon P. Lynn, Esquire Marci Strauss, Esquire Stephens, Lynn, Klein 301 East Las Olas Boulevard, Suite 800 Fort Lauderdale, Florida 33301 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue The issue in this case is whether the license of Allen B. Erde, M.D., should be disciplined by the Florida Board of Medicine based upon actions he is alleged to have taken, or failed to have taken, between August and November, 1986, in the care and treatment of his patient, C.W.
Findings Of Fact At all times material hereto, Respondent has been licensed as a physician in the State Of Florida, having been issued license number ME-0008625. Respondent was C.W.'s obstetrician during her pregnancy in 1986, and initially examined her on August 26, 1986, when she was six weeks pregnant. During this initial visit, C.W. was informed by Respondent that her pregnancy was progressing normally. At her second visit, on September 23, 1986, Respondent detected no fetal heartbeat. However, he informed C.W. that this was not a problem. He requested that she bring her husband with her for her third visit so that they both could hear the heartbeat. Prior to her third visit, C.W. saw Respondent in his office on October 6, 1986, complaining of urinary problems, and a stiff neck and back. Respondent treated her for a urinary tract infection. Later that same day she began to bleed vaginally, passed clots and experienced cramping pains. She then saw Respondent at the Winter Haven Hospital emergency room, but was told that nothing seemed wrong. Respondent advised her simply to go home, put her feet up, and rest. There were several other occasions during October, 1986, when C.W. experienced cramping and vaginal bleeding. She called Respondent each time to express her concerns, but was told simply to lie down, and keep her feet up. On October 22, 1986, C.W. and her husband visited Respondent for her third scheduled visit. No heartbeat was heard. Respondent again told C.W. that there was no cause for concern, the baby was just small and probably behind her pelvic bone. C.W. was presumably 14 weeks pregnant at this time, but Respondent's office records indicate that the fetus was decreasing in size, there was no weight gain, and no heartone. C.W. continued to experience pain and bleeding, sometimes accompanied by clots. She was not gaining weight, and had none of the other indications of pregnancy which she had experienced in her prior pregnancies. C.W. continued to express concern to Respondent, but his advice remained simply to lie down, and keep her feet up. In response to a five day episode of bleeding, C.W. saw Respondent in his office on November 12, 1986. Although she was 17 weeks pregnant at that time, Respondent's office records indicate a fetus 14 weeks in size. Respondent did not order any fetal viability tests, and there is no evidence in his office record that he considered any testing of the fetus. C.W. saw Respondent for her fourth scheduled visit on November 19, 1986, and, again, no fetal heartbeat was detected. She was still experiencing vaginal bleeding. Her uterus was only 10-12 weeks in size, although she was presumably 19 weeks pregnant at this time. C.W. was distraught, and expressed great concern to Respondent that she was presumably almost five months pregnant and no fetal heartbeat had ever been detected. C.W. demanded that Respondent do something. He then ordered a quantitative Beta-subunit Human Chorionic Gonadotropin blood test to determine her hormone level. On November 2l, 1986, Respondent called C.W. at her place of employment, and informed her that her hormone levels were extremely low, and that she might not have a viable pregnancy. He told her she should keep her next regularly scheduled appointment with him, but if she experienced any severe bleeding or cramping to call him. C.W. left work and became increasingly upset. She contacted him later on that same day for a more complete explanation of what she should expect. Respondent told her that the fetus was "reversing itself and was losing weight instead of gaining." C.W. was not informed by Respondent that the fetus was not viable, and she took his advice to mean that if she was extremely careful there was still a chance of carrying the pregnancy to term. Respondent admitted to the Petitioner's investigator, Jim Bates, that he knew the fetus was dead at this time, but he was trying to let nature take its course, and if she did not abort in two or three months, he would take the fetus. Because she was extremely upset and her friends were concerned about the advice she was receiving from the Respondent, an appointment with another obstetrician, Dr. Vincent Gatto, was made for C.W. by one of her friends. Dr. Gatto saw C.W. on or about November 21, 1986, and after examining her he immediately diagnosed her as having had a missed abortion. A sonogram confirmed this diagnosis. A dilation and curettage was performed on C.W., and subsequent pathological reports revealed remnants of an 8-week fetus. The medical records which Respondent maintained of his care and treatment of C.W. are incomplete and contain discrepancies concerning his evaluation of the patient. They do not reflect C.W.'s numerous telephone calls, or that she was increasingly upset over the course of her pregnancy. There is no delineation of a plan of treatment in these records, or any explanation of the type of treatment he was pursuing for her. There is no explanation or justification in these records of Respondent's failure to order a sonogram or test, other than the one Beta-subunit Human Chorionic Gonadotropin, for C.W., although she repeatedly reported vaginal bleeding and cramping, and there was a continuing inability to detect a fetal heartbeat. Respondent failed to carry out the correct tests on C.W., and therefore, he failed to make a correct diagnosis of missed abortion, or to treat her correctly. He allowed her to carry a dead fetus for almost two months. Retention of the products of a non-viable pregnancy can lead to several complications, including infection, blood clotting and psychological trauma. In fact, this experience caused C.W. severe emotional anguish. In his care and treatment of C.W., Respondent failed to meet the standard of care that is required of a physician practicing under similar conditions and circumstances.
Recommendation Based upon the foregoing, it is recommended that Florida Board of Medicine enter a Final Order suspending Respondent's license to practice medicine for a period of five years, and imposing an administrative fine of $3,000. DONE AND ENTERED this 21st day of August, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1989. APPENDIX (DOAH CASE NO. 88-4785) Rulings on the Petitioner's Proposed Findings of Fact: Adopted in Finding l. Adopted in Finding 2. Adopted in Finding 3. Adopted in Finding 4. Adopted in Finding 5. 6-7. Adopted in Finding 6. Adopted in Finding 7. Adopted in Finding 8. Adopted in Finding 9. Adopted in Finding 10. Adopted in Finding 11. Rejected as irrelevant. 14-17. Adopted in Finding 13. 18-21. Adopted in Finding 12. 22. Adopted in Finding 14. The Respondent did not file Proposed Findings of Fact. COPIES FURNISHED: Mary B. Radkins, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Allen B. Erde, M.D. P. O. Box 1817 Winter Haven, FL 33883-1817 Allen B. Erde, M.D. 198 First Street, South Winter Haven, FL 33880 Dorothy Faircloth Executive Director Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth Easley, General Counsel Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0729
The Issue The matters presented for consideration in this action are related to an Administrative Complaint brought by the State of Florida, Department of Professional Regulation, against Dr. Lee, accusing him of having violated various provisions of Chapter 458, Florida Statutes, pertaining to his practice of medicine. The complaint accuses the Respondent of violating Section 458.331(1)(t), Florida Statutes, by gross or repeated malpractice or the failure to practice medicine with the level of care, skill and treatment which is recognized by reasonably prudent similar physician as being acceptable under similar conditions and circumstances, related to the treatment of several patients. Respondent is also accused of having failed to keep written medical records justifying the course of treatment for those patients in violation of Section 458.331(1)(n) , Florida Statutes.
Findings Of Fact William J. Lee, M.D., is a physician licensed to practice medicine in the State of Florida through a license issued by the State of Florida, Department of Professional Regulation, Board of Medical Examiners, License No. MEO12345. He has held that license at all times relevant to this case and in that time sequence has practiced general medicine and general surgery in Jacksonville Beach, Florida, in his office and at Jacksonville Beach's Hospital in that same community. Dr. Lee is 51 years old and is a graduate of Emory University in 1958, receiving his M.D. from Emory in 1964. He did an internship at the University of Florida in Gainesville, Florida, followed by a residency in general surgery at the University of Florida from 1965 through 1968 and completed his residency at Duval Medical Center in Jacksonville, Florida, in 1969. The Administrative Complaint, which is the subject of this hearing was filed on February 22, 1983. Proper service of the Administrative Complaint was effected upon the Respondent and Dr. Lee made a timely request for formal hearing pursuant to Section 120.57(1), Florida Statutes. THELMA A. PARKER From August 9 through 13, 1974, Thelma Parker was treated medically at Memorial Hospital of Jacksonville, Jacksonville, Florida, for acute diverticulitis. This treatment was provided by Dr. C. Cooksey. In particular, Dr. Cooksey's medical regime was NOP, IV fluids, and large doses of Fibramycin. A barium enema was done on the patient on August 10, 1974, and revealed diverticulosis of the sigmoid colon and one large acutely inflamed diverticulum of the mid-sigmoid level. This diverticulum was unusually long and Dr. Cooksey was of the impression that the diverticulum produced some edema of the bowel wall with low grade obstruction. Finally, Dr. Cooksey felt that at some point the diverticulum should be resected because of its size. In late August 1978, Ms. Parker, who had become a patient of the Respondent's, began to experience cramping, and diarrhea pain for which she took lomotil to slow down the bowel activity. This relieved her symptoms temporarily. Nevertheless, the symptoms persisted and on September 2, 1978, Ms. Parker went to the emergency room at Jacksonville Beach's Hospital, displaying the same type of pain and showing a mild distention. This pain was a generalized to and fro type of pain of cramping nature across the area of the abdomen. It was not localized. Dr. Lee admitted the patient to that hospital on that date. At that time, Dr. Lee was aware of the prior 1974 bout which the patient had with diverticulitis. Lee obtained an x-ray obstruction series and based upon this information felt that possible explanation was adynamic ileus versus early obstruction. He did not feel that the patient was suffering from diverticulitis in that there was no indication of lower left quadrant abdominal pain, bowel dysfunction such as constipation or obstipation and no indication of temperature elevation, indicators of diverticulitis. The symptoms she did display were not inconsistent with diverticulitis. At admission, the Respondent did note the past history of diverticulitis and the emergency room admission and hospital records indicated chronic lower quadrant abdominal pain and change in bowel habits and diarrhea, which are consistent with diverticulitis. Based upon examination of the patient, x-rays and associated materials, Respondent performed an exploratory laparotomy on September 4, 1978, for the purpose of relieving a small bowel obstruction. In the surgery, he found grossly dilated loops of the small bowel with obvious obstruction of the terminal ileum approximately 15 cm's proximal to the ibocacal valve. He found that area to be "firmly adherent to a mass of scar tissue in the sigmoid colon area of the pelvis with chronic low grade inflammatory reaction present in the region." The portion of the ileum that was involved in this was wound severely upon itself with the massive scar tissue in the area. Given the condition, he determined to resect that portion of the small bowel and effected a repair by anastomosis. No evidence was revealed in the course of the operation of any blockage of the large bowel, based upon his observations and manipulations. Gross examination was also made of the sigmoid colon and this revealed no dilation. No contrast studies were done to examine the lumen of the sigmoid colon, such as barium enema or colonscopy. Those studies would have ruled out diverticulitis in the area of the sigmoid colon. The post operative diagnosis by Dr. Lee was small bowel obstruction, secondary to diverticular disease and upon the discharge date of September 14, 1978, the diagnosis was 1) small bowel obstruction and 2) diverticular disease. The patient was seen in Dr. Lee's office on September 18, 1978 and had a fever and abdominal symptoms. She was told to see the doctor again on the next day and lacking improvement on that date was admitted to the hospital on September 19, 1978. At the time of admission on September 19, 1978, initial impression by Dr. Lee was that the patient was suffering intra-abdominal abcesses, secondary to anastomostic break or leakage in the area of the resection of the small bowel. The patient demonstrated a tenderness in the lower abdomen and had some nausea and vomiting. On rectal examination, the patient demonstrated a fluctuant area in the rectum, at the pelvic basin formed by the peritoneum. This area was determined to be an abscess and on September 26, 1978, Dr. Lee performed a procedure by going through the anus into this area of abscess and making an incision in the wall of the rectum to allow drainage of the abscess through the rectum. There was some improvement but the patient continued to have temperature elevation and abdominal pain and on October 2, 1978, further laparotocy was done and an anastonimotic break was discovered. Reanastomosis was achieved following a second resection in the area of the initial small bowel obstruction. Gross examination during the course of this surgery did not reveal any evident blockage of the large intestine or active diverticulitis. Again, no specific diagnostic work was done to determine the condition of the sigmoid colon related to diverticulitis. During the surgery, in addition to the revision of the ileostomy, abdominal abscesses were also evacuated. The patient was discharged on October 21, 1978. After her release in October 1978, the patient was seen on a number of occasions by the Respondent and indicated occasional episodes of cramping, diarrheal type stool but no localized pain in the left, lower quadrant, constipation or obstipation. The patient developed a ventral hernia in the area of the incision related to the abdominal surgery performed by the Respondent and on June 21, 1979, was admitted to the hospital to attend that condition. Exploratory laparotomy was dome on June 22, 1979 and the Respondent did further resectioning and reanastomosis in the area of the small bowel repair together with repair to the ventral incisional hernia. The large intestine in the area of the previous diverticular disease was examined and no indication, on gross examination, was given as to obstruction of the large bowel or any showing of acute inflammation in the area of the sigmoid colon suggesting diverticulitis. As was the case before, no specific examination of the sigmoid colon by a process of barium enema or otherwise was made at the time of this hospitalization. The patient was seen in the Respondent's office on July 3, 1979, and it was noted that her wound from the most recent operation was healing and that her appetite was good and bowel movements normal. A further visit of July 6, 1979, revealed a pink, serous drainage from the portion of the most recent incision and the abdomen was tender. Eventually, the patient had to be readmitted on July 23, 1979. Upon admission, it was believed that the patient was suffering intra-abdominal abscesses. She demonstrated temperature elevation and abdominal pain. The serous drainage from the incision had subsided. On this admission, particularly July 27, 1979, Dr. Lee did obtain a barium enema for purposes of examining the sigmoid colon and it showed a narrowed portion within the sigmoid colon with a communication to an abscess in the pelvis and from there a fistula to the small bowel at the site of the anastomosis. The abscess described was an abscess that had been addressed by Dr. Lee on September 26, 1978. This narrowing in the sigmoid colon was a partial obstruction, leaving an approximate functional capability of 10 percent. No dilation was observed in the bowel proximal to the area of partial obstruction and there was no distention. The narrowing was caused by the diverticular disease process. No evidence was found of an active condition of diverticulitis in the sigmoid colon. On July 30, 1979, a further surgical course was pursued by Dr. Lee and a segment of the small bowel in the area of the previous attempts at anastomosis was removed and a reanastomosis was done with a cleaning up of the previously described fistula tract and associated repairs. No attention was given to the narrowing of the sigmoid colon. On August 6, 1979, Dr. Lee opened and drained large abscesses in the abdominal wall and this was followed on August 9, 1979, with his notation of a small bowel fistula. On August 10, 1979, the patient requested consultation with another surgeon, Dr. James Corwin and was transferred to his care on August 12, 1979. Corwin advised the patient to have a loop colostomy to try and address continuing problems as described by prohibiting the sigmoid colon from contributing to those difficulties. This procedure was carried out by Dr. Corwin on August 17, 1979. Resection of the sigmoid colon was done by Dr. Corwin on September 17, 1979. (Pathology related to the sigmoid colon showed diverticulosis, indication of diverticular disease. It did not show active diverticulitis.) The patient accepted Dr. Corwin's suggestion that the colostomy and resection of the sigmoid colon were necessary, without hesitation. Respondent's suggestion by testimony or record that he had discussed with Ms. Parker the need to address her diverticular condition and possible resection of the sigmoid colon and her rejection of such diagnosis and treatment is not accepted. These discussions allegedly occurred between her release from the hospital in October 1978, and her hospitalization in June 1979. When examined in light of the facts found, specifically her willingness to submit to all other operations and procedures by Dr. Lee and to accept Corwin's treatment of the colon when suggested, Respondent is not to be believed on this subject. Ms. Parker failed to recover from the series of problems as discussed and died on October 28, 1979. The diverticular disease in the colon contributed to her demise and Dr. Lee failed to diagnose and treat that condition. Notwithstanding the fact that Ms. Parker did not take care of herself in terms of her physical condition, related to her drinking habits, Respondent was not relieved from the necessity to diagnosis and address the problem with the sigmoid colon. Dr. E. R. Woodward testified on behalf of the Petitioner, after being accepted as an expert in medicine with particular emphasis on general surgery. Dr. Woodward is a professor of surgery and former chairman of the Department of Surgery at the University of Florida, College of Medicine, and is a member of various boards, colleges and associations related to the practice of surgery and has written approximately 250 publications and authored two books in the field of general surgery. His testimony was based upon the review of hospital records related to Parker's various hospitalizations under the care of Dr. Lee that have been addressed. Dr. Woodward is of the opinion that the patient suffered diverticulitis in the sigmoid colon at times relevant to the inquiry and finds fault with Dr. Lee's failure to diagnose and treat this condition which Dr. Woodward felt was the underlying cause of the patient's problems pertaining to obstruction in the small bowel and associated anastomotic failures. Even without such diagnoistic procedures as barium enema or otherwise, Dr. Woodward feels that Dr. Lee recognized the diverticulitis of the colon in describing the chronic inflammatory reaction in the area of the sigmoid colon in his September 4, 1978, post operative report. Dr. Woodward revealed that in the September 19, 1978, admission that one of the x-rays showed air fluid levels in the right colon which is indirect evidence of a possible problem of an obstruction in the sigmoid colon. Moreover, given the fact that the intestines heal extremely well, according to Dr. Woodward, the problem with the anastomosis was possibly due to the fact that the lining of the intestine beyond the anastomosis was not open sufficiently and that there was some degree of obstruction as was revealed in the area of the sigmoid colon, which had been caused by chronic diverticulitis. By the time of the June 21, 1979, hospitalization, Dr. Woodward felt that the patient's condition was such that her recovery was not promising. Even in the face of information found after the July 27, 1979, barium enema, Dr. Lee did not address the difficulty with the narrowing in the colon by some process of diverting colostomy or other surgery of the colon. In Dr. Woodward's mind, this was necessary at the time of the September 4, 1978, surgery and continued to be a need at the time of the July 30, 1979, surgery. Risk of mortality increased from 2 percent to as high as 10 percent at the July 30, 1979, operation. Subsequent to that operation, the patient was so ill and the infection so severe that the mortality risk related to surgery was prohibitive, per Woodward. In summary, Woodward felt that the Respondent's failure to diagnose and treat the diverticular condition in the sigmoid colon led to her eventual demise and was such quality of treatment as to constitute gross or repeated malpractice and the failure to practice medicine with a level of care, skill and treatment which is recognized by reasonably prudent similar physicians as being acceptable under similar conditions or circumstances. Dr. Corwin, gave his expert opinion, as a general surgeon, after being accepted in that field. This is the same Dr. Corwin who treated Thelma Parker. Dr. Corwin feels that given a past history of diverticulitis, which the Respondent knew about and the condition which he found upon the original surgery performed in the abdomen, Respondent should have searched for the cause of that condition which most likely was the patient's diverticulitis. This opinion refers to the need for an examination by barium enema or some other form of contrast study to determine the condition of the sigmoid colon. The narrowing or obstruction in the area of the distal colon, as described, was felt by Dr. Corwin to be almost total in that the colon was reduced to an approximate 10 percent function. Corwin felt that the Respondent had made a major mistake in his treatment of the patient in not attempting to ascertain the cause of the abscesses and obstruction and to deal with the problem in the colon which he considered to be the underlying cause of her difficulties. According to Corwin, the quality of that mistake was so severe as to constitute gross mistreatment of the patient. He feels there was malpractice in that the problem in the colon was at least partially responsible for the anastomotic breaks. At minimum, Dr. Corwin felt that a diverting colostomy was necessary to address the problem with the colon and probably a resection of the sigmoid colon, which procedures were done by Corwin subsequent to assuming the case. Dr. Wiley Douglas Fowler, Jr., who is a board certified, general surgeon, practicing in the community where Respondent practices, gave testimony. He too felt that the Respondent had failed to deal with the condition in the sigmoid colon which he considered to be diverticulitis. There was a need to do a diverting colostomy and to do further definitive treatment as necessary to address the diverticular condition, per Fowler. He felt that there was a breakdown in surgical judgment to the point that the doctor was unable to perform the responsibilities of care in the case. Dr. Samuel Stephenson, who is a board certified general surgeon practicing in Jacksonville, Florida, testified. He did not find the quality of Dr. Lee's care to be-substandard related to the patient Parker. He placed emphasis on the fact that in his opinion gross signs such as dilation in the colon or large bowel were not observable and no active condition of diverticulitis was ever discovered during Parker's treatment course from the time of the Respondent's involvement to her demise. He did indicate that the barium enema results of July 27, 1983, might make one wonder if the narrowing in the sigmoid colon had caused some of the other recurring problems associated with anastomotic breaks in the small intestine. He indicated that by July 30, 1979, there might be a need for a colon resection. Stephenson was impressed with the fact that the patient died even after attempts to address the problems with the colon, i.e., the temporary colostomy and resection of the colon done by Dr. Corwin, leading him to wonder if the cause of continuing failure in the area of repair at the small bowel was due to some circumstance other than problems in the sigmoid colon. He believed that in the initial admission of September 1978, that there was a possibility of a problem with diverticulitis as well as the small bowel obstruction but no gross signs indicated an active condition of diverticulitis in the area of the colon, such as dilation. The mass that was discovered at the point of the initial laparotomy in September 1978, might have been from the colon or might not have been in the mind of Dr. Stephenson. The thrust of Dr. Stephenson's testimony seems to be that absent a clear indication that diverticulitis in the colon or the narrowing in the colon was the proximate cause of the anastomotic breaks and attendant processes of infection, there was no duty on Dr. Lee's part to rule out the possible involvement of the sigmoid colon as an explanation for the problems with the healing process in this patient. Upon reflection, the impressions gained by Drs. Woodward, Corwin and Fowler, witnesses for the Petitioner, are more compelling than those of Dr. Stephenson, on the subject of culpability by the Respondent related to the patient's care. Evidence reported establishes that the Respondent should have examined the colon by barium enema or some similar process at the point of the initial surgery and certainly before her final admission in July 1979, and when finally so examined the colon was not treated. This failure is excerbated by the fact that the Respondent knew that the patient had a history of diverticulitis. The diverticular condition in the colon, to include the partial obstruction by narrowing, based upon the opinions of the third party experts, is found to have been a contributor to the continuing problems of anastomotic leakages, abscesses and other conditions which would not allow a successful treatment course for the patient. Even if diverticulitis in the colon or the diverticular condition in that organ did not cause failure in her treatment results, per the physicians, whose opinion is accepted, the circumstance in the colon should have been examined and ruled out at a minimum. The idea expressed by Dr. Stephenson, that in the absence of being able to clearly establish that the colon's condition caused the patient's demise, the Respondent may not be held accountable, is unacceptable. Having determined that the diagnosis should have been made, Respondent should have performed the diverting colostomy to be followed by a resection of the colon if necessary, again in keeping with the opinions of Petitioner's experts. Finally, the opinion related to Respondent's malpractice and failure to perform at an acceptable standard for same or similar physicians, as attributed to Dr. Woodward and supported in concept by Dr. Corwin, is accepted. Respondent is accused of having failed to keep adequate medical records pertaining to the patient Parker. Although there was some demonstrated ambiguity in his record keeping, that ambiguity does not rise to the level of finding facts showing a violation related to record keeping on this patient. JOHN WILLIAM PHILLIPS On July 2, 1979, John William Phillips had an accident in which he fell off of a ladder and came to the emergency room at Beach's Hospital for treatment. An admission was made on July 3, 1979, and Dr. Lee undertook the care of the patient. The patient suffered multiple fractures of the ribs, had a contusion of the left shoulder, was demonstrating slight tenderness in the left flank and evidenced a large swollen and contused area in the left chest wall posterior with tenderness. He showed a normal abdomen with bowel signs present but hypo-active. The patient suffered nausea, abdominal distention and tachycardia. From admission through July 12, 1979, the patient waxed and waned. He received fluids and pain medication and a series of x-rays were taken to better understand his condition. On July 12, 1979, a liver scan was made which demonstrated a cold area in the left lobe of the liver, leaving Dr. Lee in the position of ruling out hemotoma versus tumor versus cyst, though he believed the condition to be benign and unrelated to the accident. The cold spot on the x- ray appeared as a smooth contoured defect. The patient continued to show distention following the liver scan and continued to evidence tachycardia and vomiting for the next several days. Respondent did not choose to verify his preliminary clinical impression of the condition of the liver related to the defect, by use of sonogram or angiogram, electing instead to wait for the patient's condition to change for better or worse. On July 15, the patient showed marked increase in temperature. On that date, a chest x-ray demonstrated plate-like atelectasis in the right lung and an elevated diaphragm. With the advent of the temperature elevation on July 15, the patient was transferred to the CCU unit of the hospital and among other matters prescribed, a broad spectrum antibiotic was ordered. The patient was showing an elevated blood count at that time. Following the liver scan, the patient had also developed rapid pulse and shown mental confusion. By the morning of July 15, the patient's condition was one approaching septic shock if not in that condition. Clinically, there was indication of sepsis or septicemia. The family of the patient requested a second opinion and the patient was subsequently transferred to Dr. Corwin. Dr. Woodward gave his opinion about the treatment of Phillips, expressing the belief that the problems evidenced related to this patient were too long and severe and too related to an abdominal condition to be associated solely with the injury in the chest. Given the location of the injury, Dr. Woodward felt like the defect in the liver, seen on the scan, may have been related to the injury. Dr. Woodward felt that the Respondent should have established whether or not the lesion in the liver was caused by the accident, either by exploratory laparotomy or selective arteriogram. To do otherwise would be less than expected of a prudent general surgeon, according to Dr. Woodward. In essence, Dr. Woodward felt that something should have been done to verify the character of the defect shown on the liver scan and whether that defect was associated with injury suffered by the patient. Dr. Corwin testified about the treatment afforded Phillips. He felt that at the time that he took over the case on July 15, that the quality of the septicemia suffered by the patient was such that he was in septic shock and that an operation was necessary to address the defect in the liver. An operation was undertaken to remove that defect and when first visualized, Dr. Corwin was not sure whether the defect was a cystic hemangioma or not, although it gave an appearance of being that condition. (At the time of the liver scan, given the location of the liver defect, Corwin felt that most probable explanation was hematoma or tear in the left lobe of liver, cystic hemangioma being a rare occurrence in liver.) After removal of this cyst, the patient began to improve and Dr. Corwin believes that the removal of the cyst contributed to that improvement. He thinks that the area of the cyst became a seed bed for the septicemia in the sense of aiding in the circulation of bacteria in the patient's system. Dr. Corwin had criticism of Dr. Lee in the treatment of Mr. Phillips in the sense that once the patient's condition began to decline, approaching the place and time at which Corwin was substituted as the physician, Dr. Lee should have done more to determine the true nature of the patient's problem. He does not feel that the Respondent's treatment can be described as malpractice. He is simply of the opinion that the case was not handled very well and showed poor judgment by the treating physician. Dr. Fowler testified about the care of the patient Phillips after examining the records of hospitalization. He indicated that given the deteriorating condition of the patient, that there was an indecisive action pattern on the part of Dr. Lee but it was not of such proportions as to constitute a breakdown in the care of the patient. He had no specific opinion as to whether this conduct by Dr. Lee constituted gross or repeated malpractice. Stephenson's opinion of the Respondent's treatment of Phillips was to the effect that it was not substandard. Given the appearance of the cold spot on the liver scan, he felt certain that this was a cyst or hemangioma and not a hematoma. He indicated that uncertainty in this regard could have been confirmed by a sonogram. He did not find the necessity to conduct surgery to discover the condition of the liver. Having considered the facts of the treatment of Phillips and the opinions of the experts, while the Respondent's reactions to Mr. Phillips' condition were less than sterling, they did not reach the level of constituting gross or repeated malpractice or care unworthy of a same or similar physician. Again, the records kept by the Respondent related to the care of Mr. Phillips were sufficient. CLIFTON WORCESTER On January 31, 1977, Respondent conducted surgery on Clifton Worcester to patch a perforated duodenal ulcer. Worcester had further hospital admissions on June 21, 1978 and August 1, 1978, for recurrent ulcer symptoms. On these occasions he was treated medically. On December 27, 1978 through January 4, 1979, the patient was admitted for the treatment of pneumonia. On September 6, 1979, Worcester was admitted to the hospital under the Respondent's care for conditions which preliminarily seemed to be related to respiratory and cardiac problems. At that time, the patient was 74 years old and was in a deteriorated condition suffering from a variety of maladies to include cardiac and respiratory conditions as well as the peptic ulcer disease. On September 9, 1979, Respondent after diagnosis determined that the patient was suffering from ulcer disease and an operation was done to repair the perforated pyloric ulcer. A Graham closure was used with omental patch and permanent silk sutures were employed. This ulcer was the same ulcer as had caused problems for the patient in 1977. On the morning of September 12, 1979, blood was visualized from the nasogastric tube which had been placed in the patient and when the patient was later irrigated, a large amount of blood appeared. The initial impression by Dr. Lee was that this blood was either due to the active peptic ulcer or possibly gastritis. To ascertain the source of bleeding, Dr. Corwin was called in to do a gastroscopy. That procedure was done around 7:00 pm. on September 12, 1979. Although the entire area of the stomach could not be visualized, Dr. Corwin was of the impression that the cause of the bleeding was not gastritis, leaving the most probable explanation to be that the patient had a problem of a bleeding ulcer. Dr. Corwin made it known to the Respondent that the bleeding was probably due to an ulcer as explanation for the lesion and Dr. Lee acknowledged that the probable source of bleeding was an ulcer condition. In the early morning hours of September 13, 1979, Dr. Lee again operated on the patient, envisualized the prior pyloric ulcer and was satisfied that the sutures in that ulcer were holding fast. He also discovered a gastric ulcer. The gastric ulcer measured approximately 8 centimeters in diameter. The gastric ulcer was shallow in its depth. There was present in the patient 1200-1500 cc's of old blood and a clot in the duodenum. No active bleeding was seen at that time and no major vessels were present in the ulcer beds. Dr. Lee waited 15 to 20 minutes to see if any active bleeding would occur and failing such appearance, he placed a tube gastrostomy. After cleaning out the blood and placing the gastrostomy tube, the patient was closed. No direct attention was given to the ulcers either in the oversewing of the ulcers or by more definitive surgery addressing both ulcer beds. The reason given for not conducting some form of definitive surgery was to the effect, according to Dr. Lee, that he was worried that the patient would not survive the time it would take to conclude such surgery. The surgery that was done took two hours and twenty minutes to achieve. On reflection, Dr. Lee believes that he should have at least sutured the gastric ulcer by oversewing it like a baseball, being unable to identify a bleeding point. This is in opposition to what he did which was to hope that the patient would not rebleed after the operation of September 13, 1979. That hope was not realized because on September 15, 1979, the patient again experienced massive bleeding between 2:00 and 4:00 p.m. Dr. Lee had tried to treat the ulcers with Tagamet and irrigation through the gastrostomy tube. On September 16, 1979, Respondent operated and performed a vagotomy and antrectomy related to the pyloric and gastric ulcers. At that time, the patient was not better able to tolerate that operation than he would have been on September 13, 1979. In fact, between those two operations, he lost a considerable amount of blood, further weakening his resistance. In view of the relative condition of the patient, that is to say, generally poor health, the effects of the bleeding ulcers and associated insult caused by the surgeries, the patient died on September 27, 1979. Among the problems experienced by the patient, in the waning days of his life, were an anastomotic leak and peritonitis. Dr. Woodward, after review of the patient's hospital records, was of the opinion that the bleeding experienced by the patient on September 13, 1979, was from one of the ulcers and not because of gastritis. This belief is held notwithstanding the failure of the ulcers to bleed in the course of the operation on September 13, 1979. Bleeding sometimes subsides during surgery. Given the patient's circumstance related to bleeding ulcers, the least acceptable approach by the treating physician would have been to oversew and/or excise the ulcer craters. The excision would relate to the gastric ulcer. In addition, if possible, Respondent should have done a vagotomy and antrectomy or vagotomy and pyloroplasty during the September 13, 1979, surgery. Alternatively, the ulcers could have been treated medically after oversewing or excision. Use of Tagamet and irrigation would not stop the ulcers from bleeding, in Woodward's opinion. Woodward felt that a patient such as Worcester, who was in distress during the course of the operation, and had lost a great volume of blood, was a patient in greater need of the aforementioned procedures than the average patient, based upon the patient's inability to tolerate additional blood loss if the ulcer started to rebleed after he had been sewn up. At the time of the September 13, 1979, operation, there was evidence that the patient was in shock, which might cause the surgeon to stabilize the patient before conducting the minimum procedures identified, according to Dr. Woodward, but this would not cause the closure of the patient without addressing the bleeding ulcer or ulcers. The shock in Woodward's opinion was due to blood loss. In summary, in Dr. Woodward's mind, to visualize the ulcers on September 13, 1979, having recognized that they were the source of bleeding and to do nothing to stem that bleeding, was unacceptable Performance by the surgeon. Per Woodward, the procedures of September 16, 1979, a vagotomy and antrectomy, were correct but too late. The risk of mortality on September 13, 1979, as opposed to September 16, 1979, was 10 to 20 percent versus a prohibitive chance for recovery. Dr. Woodward found the treatment of Clifton Worcester to be clearly substandard in the face of the requirement to practice medicine with the level of care, skill and treatment which is recognized by reasonably prudent similar physician as being unacceptable under similar conditions and circumstances. Dr. Woodward's opinions as stated herein are accepted with the exception that pyloroplasty was not an appropriate choice given the location of the pyloric ulcer. Antrectomy would have been the substitute choice. Dr. Corwin, with the knowledge that Dr. Lee had been informed of the results of the gastroscope indicating that the source of bleeding on September 13, 1979, was probably an ulcer, felt that the Respondent, when he opened the patient on September 13, 1979, even though the ulcers were not bleeding, should have dealt with those ulcers to prohibit rebleeding, as opposed to cleaning out the ulcer beds and closing the patient. The minimum response would have been oversewing the ulcers with nonabsorbable sutures, and the aging condition of the patient should not have deterred Dr. Lee in that task. When asked if Dr. Woodward had performed the level of care, skill and treatment which is recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances, Corwin was of the opinion that the patient had received very poor treatment and that most any physician practicing as a surgeon would have done differently. Corwin did not think there was any value to the irrigation of blood within the stomach and the treatment of the ulcers by Tagamet through the gastrostomy tube. The treatment of the patient in failing to correct the bleeding constituted gross malpractice according to Dr. Corwin. The opinions of Corwin are accepted. Dr. Fowler also believed that to simply open the patient on September 13, 1979, and close without treating the bleeding ulcer in the sense of definitive suturing was unacceptable. While the antrectomy and vagotomy were recognized as appropriate responses, in terms of surgical technique, Dr. Fowler felt that in the sense of appropriate judgment, those procedures came too late, having followed another bleeding episode after. the September 13, 1979, surgery. According to Dr. Fowler, when asked the question about whether this conduct by Dr. Lee in his September 13, 1979, operation in his treatment of Worcester was at the level of care, skill and treatment which is recognized by reasonably prudent, similar health care providers as being acceptable under similar conditions and circumstances, he was of the opinion that the breakdown in surgical judgment was to the point that the doctor was unable to fully perform the full responsibilities of care in the case. Dr. Fowler's opinions are also accepted. Dr. Stephenson felt that the choices made on September 13, 1979, to close the patient and treat with Tagament and to irrigate were appropriate. He felt that the source of the bleeding might have been gastritis but was most likely from the ulcers. To him, conservative treatment of the patient in not further addressing the ulcers was acceptable given the condition of the patient. Had the patient been in better health, Dr. Stephenson said he might have taken a chance in addressing the ulcers. He felt that when you cannot visualize the source of the bleeding oversewing isn't particularly helpful because you don't know whether anything is achieved. Given this patient's condition, he felt that the chances were one in three that the patient would not rebleed. Dr. Stephenson's opinion as to the acceptability of the Respondent's conduct at the time of the surgery of September 13, 1979, is not accepted. Even this physician recognized that the patient's source of bleeding was most likely the ulcer beds and that there was a great likelihood that he would rebleed and this considered together with the fact of the tremendous amount of blood that the patient had already lost prior to the September 13, 1979, surgery causes a rejection of the opinion of this physician about Respondent's performance. The related charge of failure to keep written medical records justifying the course of treatment of patient Worcester has not been shown. There is ample information to gain an understanding of the patient's condition, as evidenced by the ability of the experts to give opinion testimony.
The Issue The issue is whether Dr. Namen is entitled to a re-grading of the score which he received on the written clinical portion of the podiatry examination given in Orlando in July 1990.
Findings Of Fact Dr. Namen is a candidate for licensure as a podiatrist and sat for the clinical portion of the podiatry examination administered in Orlando in July 1990. At the time of the final hearing, Dr. Namen challenged the Department's grading of his answers to questions 3, 47, 118, and 145. At the final hearing, the expert for the Department, Dr. Warren Simmonds, agreed with Dr. Namen that the challenges to the grading of questions 3 and 118 had merit. Dr. Namen's score was increased so that Dr. Namen would be entitled to a passing score if the answers he gave to either of the two remaining questions under challenge, questions 47 and 145, were correct. Question 145 is based on case history #50, concerning a patient with a painful left ankle. Although the case history does not state directly that the joint is inflamed, it does state that "the joint is slightly warm" which is an indication of the presence of inflammation, which is confirmed by the patient's report of pain in the joint. Question 145 asked which of a number of possible treatments was the "least indicated (emphasis in original)." Dr. Simmonds testified that the answer chosen by the Board, "systemic adrenal corticosteroid therapy," was the least indicated treatment because of the side effects of steroids. Dr. Simmonds believes that steroids should not be used unless there is some acute inflammatory reaction which needs to be controlled. The best treatment, or the treatment of choice, is a non-steroidal anti-inflammatory drug. Dr. Namen contends Tylanol is the least indicated treatment because all available choices other than Tylanol were anti-inflammatory drugs, and the case history provides an indication of inflammation. Tylanol relives pain but has no anti-inflammatory effect, and is therefore the least appropriate treatment. The question stem is somewhat unusual because it asks the candidate for the "least indicated" treatment. Since Tylanol has no anti-inflammatory effect at all, Dr. Namen's testimony was persuasive that the "least indicated" treatment was Tylanol. Among the remaining choices, systemic adrenal corticosteroid therapy is the least appropriate among that group, but all answers within that group are better answers than administration of Tylanol. Question 47 is based on case history 19 concerning the appropriate dose of anesthetics to be used in a procedure for the removal of toe nails on a 58- year-old, Caucasian male weighing 150 pounds. The case history states that a certain combination of two anesthetics was used, bupivicaine and lidocaine. The question asks "how close to toxic dose would use of the entire amount bring the patient." The Department's answer was that the stated dose would be within 96 percent of a toxic dose; Dr. Namen believed that the use of the anesthetics in the amounts stated would bring the patient only within 66 percent of a toxic dose. The crux of the question is whether the toxicities for the two anesthetics interact in such a way that their toxicities must be added, or whether the correct answer involves only the calculation of the toxicity of the drug with the higher level of toxicity. On balance, the Department's answer is the most persuasive. The article in the Journal of Anesthesiology written by deJong and Bonin concludes, based upon their research which is described in the article, that local anesthetic toxicity for lidocaine and bupivicaine are essentially additive. The letter from Dr. Orta only states that the administration of both the lidocaine and bupivicaine at the doses described in the question are "well below toxic level." This observation does not answer the question posed, which is just how far below the toxic level use of the mixture stated would bring the patient. The letter from Dr. Padron, also a board certified anesthesiologist offered by Dr. Namen, says that "studies on compounding local anesthetics were done in animals and it was found that the toxicity was synergistic rather than additive," but no study was offered in evidence. The study in the Journal of Anesthesiology the Department offered into evidence is to the contrary. The evidence based on actual research is more persuasive. Dr. David's letter only reports in a hearsay fashion the opinion of an unidentified pharmacologist, and is entitled to little weight.
Recommendation It is therefore, RECOMMENDED that a final order be entered by the Department of Professional Regulation raising Dr. Namen's score, and designating him as having successfully completed the examination in clinical podiatry. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of April 1992. WILLIAM R. DORSEY, JR. 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 1st day of April 1992.
