The Issue At issue herein is whether or not the Respondent has engaged in conduct violative of Section 459.14(2)(a), Florida Statutes. 1/
Findings Of Fact Based upon the testimony adduced at the hearing and the entire record compiled herein, the following relevant facts are found. Pursuant to an Administrative Complaint filed herein dated July 8, 1978, the Florida State Board of Osteopathic Medical Examiners, herein sometimes referred to as the Board, seeks to discipline the Respondent/Licensee, Albert Jack Berg, based upon an Order of Summary Suspension entered against Respondent's Michigan Osteopathic license on February 16, 1977. The basis for the summary suspension in Michigan was a charge that Respondent had engaged in the unlawful sale and delivery of a controlled substance. Respondent was noticed of a hearing which was convened on May 9, 1978, to consider the allegations of the alleged unlawful delivery of the controlled substance. On July 10, 1978, a Final Order of Revocation was entered by the Board of Osteopathic Medicine and Surgery of Michigan, revoking Respondent's license to practice osteopathic medicine and surgery in Michigan. 2/ Respondent did not contest, at the hearing, the material allegations of the Administrative Complaint, but rather, offered mitigating evidence. In this regard, the evidence reveals that the Respondent has been licensed in Michigan since approximately July of 1961 and has been licensed in Florida since approximately 1972 (License No. 3460). In relating the circumstances surrounding his arrest in Michigan in February of 1977, Respondent avers that he was under tremendous emotional strain due to a divorce and that resultant pressures brought about from being a father of four children whose wife threatened suicide and being left with the task of rearing children alone. He related that he was undergoing parental pressure to remarry his wife and that he carried an excessive overload in his office practice. Respondent delivered several thousand Amphetamine tablets to an undercover agent in Michigan. The Amphetamine tablets had been in Respondent's possession for more than seven years and a laboratory analysis revealed that they contained ten percent (10 percent) of the Amphetamine content found in a commercially sold Amphetamine tablet. For his conviction in the State of Michigan, Respondent was initially sentenced for a period of two years, which sentence was later reduced to six months in jail, and he was thereafter released during the day hours to serve in a community guidance center under the supervision of a Dr. Richard M. Brown of Michigan. As evidence by the letter of recommendation from Doctor Brown, Respondent worked in ghetto areas of Detroit, Michigan, treating in excess of one hundred patients on a weekly basis for a period of approximately five months. Respondent has been under the care of a psychiatrist since approximately August of 1977, where he has been placed on a high protein diet with a reduced work load. Respondent presently attends "How To Control Your Life" seminars and is presently doing "pro bono publico" work for agricultural referral centers. Respondent purchased a degree from a school in Louisiana that issued medical doctor (M.D.) degrees to persons such as himself. He was motivated to purchase the degree based on instructions from a publisher who was interested in contracting to publish a book that Respondent was then writing. Respondent wrote a letter to the American Cancer Society withdrawing the "M.D." designation from his title. (Respondent's Exhibit 1.) If allowed to continue practice in Florida, Respondent intends to maintain a "ghetto" practice in order to provide medical services to the disadvantaged and those unable to pay the usual fee for such services. Respondent related that he did what sick physicians normally do; that is, turn to (1) drugs, (2) alcohol or (3) suicide. Respondent referred to an article published by the American Medical Association entitled, "The Sick Physician", dated February 5, 1973. (Respondent's Exhibit 2.) An examination of the pre-sentence memoranda submitted by Respondent to the Michigan authorities reveals that he has accounted for the mistakes and problems that he encountered in the State of Michigan during early 1977 and based on such memoranda, it is obvious that he recognized that a mistake was made and curative efforts have been taken (by Respondent) to rehabilitate himself. (Respondent's Composite Exhibit 3.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent be placed on probation in the State of Florida for a period of two (2) years. During the above two-year period of probation, it is RECOMMENDED that the Respondent be directed to engage only in the performance of medical services in a community service organization, with semi-monthly reporting requirements in a manner prescribed by the Board to its agents. RECOMMENDED this 21st day of July, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1980.
Findings Of Fact The Petitioner is the state agency charged by statute with regulating the practice of medicine in Florida. At all times material to this case, the Respondent has been a physician in the state, holding Florida license number ME0031630. The Respondent is a well-trained vascular surgeon. During his residency, he served as chief resident at New York University. From 1982 to 1986, he taught surgery and was director of the hyperbaric chamber program at Einstein College of Medicine in New York. The Respondent moved to Tampa in 1988 and has worked as a general and vascular surgeon since his move. The Respondent is board certified in general surgery and has been recertified in his specialty. He has an excellent reputation as a surgeon. W. K., Patient number 1. At all times material to this case, Patient number 1 was a 51 year old male with a history of severe peripheral vascular disease including peripheral neuropathy and nephropathy, hypertension, coronary artery disease, severe atherosclerosis, insulin dependent diabetes, and bilateral leg swelling. On February 2, 1995, Patient number 1 was examined at University Community Hospital in Tampa, Florida. The examination revealed that no pulse was present at the popliteal level of either foot. Early gangrenous changes were present at the patient's right foot. Both feet were cold to the touch. Based on the February 2 examination, Patient number 1 was diagnosed with congestive heart failure secondary to ischemic heart disease, chronic renal insufficiency secondary to diabetic neuropathy, anemia, hypertension, peripheral vascular disease with early gangrenous changes to the right foot, and diabetic peripheral bilateral neuropathy in both extremities. On February 10, 1995, Patient number 1 was evaluated by the Respondent. Based on his review of the patient's arterial vascular studies, the Respondent recommended that the patient undergo "jump" bypass surgery. The patient had previously undergone bypass surgery and declined to do so again, electing instead to receive treatment by medical therapy. The medical therapy was unsuccessful. Patient number 1's right leg remained swollen and painful. The pain was persistent and severe, and interfered with his mobility. The Respondent was called for another consultation. On February 17, 1995, Patient number 1 presented to the Respondent for evaluation of the continuing pain in the lower right extremity. At that time, the patient and the Respondent discussed surgical amputation of the affected right extremity. The patient decided to undergo the amputation. Patient number 1 signed a consent for a right leg below knee, and possibly above knee, amputation. On any given day, multiple surgical procedures are performed in a hospital's surgical facilities. At Tampa Community Hospital, surgeries are scheduled by a clerk who enters the patient's information into the facility's records. The records are maintained on computers. The surgeries scheduled to be performed in the facility each day are identified on a printed surgical schedule which is generated from the computer records created by the clerk. For each surgery scheduled during the day, the surgical schedule identifies the assigned operating room, the surgical procedure, and the names of the patient, surgeon, and anesthesiologist. At University Community Hospital (UCH), the operating rooms are configured in a "U" shape. A control desk in the center of the "U" is staffed by an assistant nurse manager and a secretary. A copy of the printed surgical schedule is located at the control desk. Information from the surgical schedule is written onto a "blackboard" located at the control desk. The printed surgical schedule for February 20, 1995 incorrectly stated that Patient number 1 was to undergo a left below knee amputation. The evidence fails to establish the cause for the original incorrect identification of the procedure. At approximately 3:30 a.m. on February 19, 1995, Annette Beede, a pool nurse engaged in stocking and cleaning activities at UCH, received a telephone call from an unidentified person Ms. Beede identified as a floor nurse from the floor where Patient number 1 was housed. A pool nurse is one called in to fill a need for staff beyond the normal staffing levels of a hospital. The caller informed Ms. Beede that the surgery was incorrectly identified on the schedule. The caller told Ms. Beede that Patient number 1 was to undergo a right leg amputation. According to proper hospital procedure, any change to a surgical schedule must be submitted by the surgeon or his office. There is no evidence that the Respondent or his office was aware of or attempted to correct the erroneous surgical schedule. Ms. Beede corrected the copy of the surgical schedule she had and initialed her correction. Ms. Beede's corrected copy remained on a clipboard which was given to the nurse who relieved her from duty at about 11:00 a.m. on February 19, 1995. Ms. Beede did not verbally discuss the change with the relief nurse. There is no evidence as to why Ms. Beede was the nurse to whom the call was directed. Proper procedure for the change would be that the amended surgical schedule would remain on the clipboard at the control desk until it was taken into the operating room by the circulating nurse. At Tampa Community Hospital, multiple copies of surgical schedules were apparently made. Some circulating nurses had their own copies of surgical schedules. Copies of surgical schedules were also sometimes taped to walls in operating rooms or placed on operating tables. A separate and uncorrected copy of the February 20 surgical schedule was placed in the operating room where Patient number 1's procedure would be performed. The schedule placed in the room stated that Patient number 1's left leg was to be amputated. The blackboard at the control desk indicated that the patient's left leg was to be amputated. On February 20, 1995 at about the time Patient number 1 was being taken to the operating suite area, the Respondent was "making rounds" at the hospital. The Respondent was paged and told that Patient number 1 was being brought to the operating room. After hearing that the patient was on his way to the surgical area, the Respondent proceeded towards the lounge where surgeons generally wait to be called into the operating rooms. Patient number 1 was wheeled to an area just outside the operating room, where he was met by Willie Mae Jones, a circulating nurse. A circulating nurse is responsible for assuring that the surgical process operates smoothly. She is responsible for identifying the correct patient for surgery and for talking to the patient prior to surgery to ascertain his condition. Ms. Jones spoke to the patient and found him to be alert. She discussed the procedure. He identified his right leg as the correct amputation site. Ms. Jones noted the information provided by the patient in his hospital records. As Ms. Jones talked to the patient, the Respondent passed nearby, waived to the patient, and entered the lounge area. On February 20, 1995, the Respondent did not discuss the procedure with the patient prior to the surgery. The effective standard of care did not require the Respondent to speak to the patient at that time. Prior to the surgery, Ms. Jones was responsible for "prepping" the appropriate area for surgery. In this case, prepping included cleaning the leg with an antiseptic solution. A leg holder was used to position and stabilize the leg prior to cleaning. The patient's left leg was edemous and ulcerated. At Ms. Jones' direction, her assistant placed the patient's left leg in the holder. In preparing a patient for an amputation, the appearance of an extremity, without additional review of records, is not an appropriate indicator of whether it is the correct extremity to be amputated. After the leg was secured, it was removed from the leg holder at the direction of the nurse anesthetist in order to permit the spinal anesthesia to take effect. After the patient was anesthetized, the anesthesiologist replaced the left leg into the holder. Ms. Jones prepped Patient number 1's left leg. The rest of the patient's body, including his right leg, was draped with a sheet or blanket. After the administration of anesthesia was complete and the patient was draped, the Respondent, having finished scrubbing, entered the room and the surgical procedure began. Normally, operating room personnel work from 7:00 a.m. to 3:00 p.m. By the time the amputation of Patient number 1's leg began, it was 5:45 p.m. The Respondent had reviewed the incorrect blackboard information and the incorrect written surgical schedule prior to the surgery. The effective standard of care did not require that the Respondent review the patient's medical records or the executed consent form prior to the surgery. He did not review the documentation. As the surgery began, the nurse anesthetist inquired as to the pre- operative diagnosis. The Respondent replied "ischemic left lower extremity." Ms. Jones recorded the Respondent's statement in the appropriate position on the patient's surgical record. While the operation was in progress, Ms. Jones recorded the surgical procedure as a "left below knee amputation," based on the information provided by the Respondent to the surgical team during the procedure. While the Respondent was amputating the patient's lower left leg, Ms. Jones began to review Patient number 1's medical records. She noticed that the patient's medical history and consent identified the correct amputation site as the patient's right leg. Ms. Jones, who had been facing away from the operating area of the room, turned towards the area where the surgery was taking place. She looked under the draped blanket. She began to cry and the surgical team then discovered that the wrong leg was being amputated. After a momentary pause, the amputation, having passed the stage at which it could have been reversed, was completed. After the patient was sufficiently recovered from the surgery, the Respondent entered the recovery area and discussed the mistake with the patient. The patient was subsequently transferred to Tampa General Hospital where his right leg was amputated. Prior to it's amputation, the patient's left leg was also affected by poor circulation. There is evidence that the condition of the patient's left leg was as deteriorated as that of his right leg. He had previously been treated for left leg pain. It is likely that at some future point, Patient number 1's left leg would have required additional treatment and possibly amputation. Notwithstanding the condition of the left leg, at the time it was amputated, Patient number 1 relied on it for mobility. There is no evidence that the Respondent and Patient number 1 discussed amputation of any portion of the patient's left leg. The applicable standard of care requires that a surgeon verify that the appropriate site is prepared prior to surgery and that the correct surgical procedure is performed. On February 20, 1995, the Respondent failed to meet the standard of care by failing to verify that the appropriate site had been prepared for surgery and by amputating the incorrect extremity. The applicable standard of care requires that a surgeon obtain the written consent of a patient prior to performing a surgical procedure. On February 20, 1995, the Respondent failed to meet the appropriate standard of care by performing a surgical procedure for which he did not have the written consent of the patient. Although there is evidence that errors by persons other than the Respondent contributed to the amputation of the improper extremity, there is no credible evidence to establish that such errors excuse the Respondent's failure to meet the appropriate standard of care. M. S., Patient number 2. At all times material to this case, Patient number 2 was a 69 year old female with a history of diabetes, end stage renal failure requiring hemodialysis, pericarditis, severe peripheral vascular disease, and osteomyelitis. Osteomyelitis is an infection which results in the decay of bone mass and soft tissue. In 1993, four toes of Patient number 2's left foot had been amputated due to infection and to osteomyelitis. The infections were a result of her diabetes and poor vascularization to the affected tissues. At all times, Patient number 2 was very concerned about keeping her limbs intact and was extremely resistant to amputation of her legs. The previous toe amputations were an attempt to maintain the integrity of her limb. On April 11, 1995, the Respondent amputated the fifth toe from Patient number 2's right foot. She was suffering from inoperable vascular disease in her right leg. The toe was necrotic and infected. The April 11th amputation was performed using typical amputation technique. An elliptical incision was made at the base of the toe, the bleeding was controlled, the bone was cut through above the metatarsal head, tendons were sliced and the toe was removed. Sutures were used to close the wound. The toe removed during the April 11th amputation was sent as one piece to the hospital pathology department. After the amputation of the fifth toe, the patient's infection continued. On June 30, 1995, she was admitted to Town and Country Hospital in Tampa, Florida. At the time of her admission, she was suffering from spiking fever related to the infection in her right foot. Upon examination, the Respondent determined that the site of the amputation was necrotic and infected. A foul smelling fluid drained from the wound. The foot was swollen. An x-ray revealed abnormality in the area of the right fourth toe. There were erosions around the area of the toe indicating likely infection and osteomyelitis. The Respondent performed a limited removal of necrotic tissue at the patient's bedside and ordered tests and medical treatment to confirm the condition. The patient's physicians were concerned that the infection would become more pervasive and could cause increasing medical problems. The Respondent discussed Patient number 2's condition with other physicians who were involved in her care. The possibility of a right below knee amputation was discussed with the physicians as was the removal of the remaining toes from her right foot. The Respondent believed that removal of her remaining toes was not appropriate because the right foot was not viable. Patient number 2's primary care physician spoke with her about the need to resolve the continuing infection in her right foot and discussed below knee amputation of the leg. She remained very concerned about losing her leg and emphasized to her physician that she wanted to save the limb. The patient's physician discussed with the Respondent a transmetatarsal amputation, involving removal of part of her right foot. However, given the vascular problems in her right leg, the Respondent determined that the procedure would be unlikely to heal adequately. The Respondent discussed amputation with Patient number 2, who declined to have her leg amputated. The Respondent then discussed debridement of the right foot with the patient. Debridement is a procedure where necrotic tissue is surgically removed by a scalpel or scissors. The debridement of tissue requires exercise of the surgeon's clinical judgement and discretion. Ideally, a surgeon removes necrotic material to the point where normal bleeding begins to occur. In this case, the purpose of the debridement was to remove the necrotic tissue and attempt to restrain the infection. On July 6, 1995, Patient number 2 executed her consent to a debridement of her right foot. There is no credible evidence that the Respondent discussed with the patient the removal of the fourth toe on her foot during the debridement. The debridement was scheduled for July 7, 1995, but was postponed when the patient developed pneumonia. On July 10, 1995, the debridement was again discussed by the Respondent with the patient, who remained in emotional turmoil and was concerned about saving her foot and leg. On July 10, 1995, the patient met with an infectious disease doctor who noted an increased white blood count (indicating an active infection) and a non-healing wound which displayed necrotic changes. The desirability of a transmetatarsal amputation was again discussed, because the physician believed antibiotics would be insufficient to control the infection. Again the patient declined the amputation. The debridement was scheduled for July 11, 1995. On that day, a surgical nurse, Margaret Pratt, spoke to the patient about the procedure. The patient said the Respondent was to remove dead tissue from her foot. Ms. Pratt saw that the toe appeared to be necrotic and marginally attached to the foot. Based on her view of the toe, Ms. Pratt discussed with the Respondent whether she needed to obtain the patient's consent for removal of the toe. The Respondent said he was not going to amputate the toe. Continuing to be concerned, Ms. Pratt spoke to her supervisor, Kathy Dzikowski, about the condition of the toe and the Respondent's intentions. Ms. Dzikowski contacted the Respondent to discuss his intentions. He continued to indicate that he planned only to debride the foot. Another nurse, preparing for the procedure, asked the Respondent if he needed a large "Horsley" bone cutter. He replied that he did not need a large bone cutter. On July 11, 1995, the debridement procedure was performed. Using a number 10 blade scalpel, the Respondent removed necrotic tissue from the bottom and then from around the "ball" of the patient's right foot. The Respondent also debrided the right side of the patient's right fourth toe. The Respondent then prepared to debride the left side of the toe. Holding the blade in this right hand, and grasping the fourth toe with his left hand, the Respondent pulled the toe to the right to access the area between the third and fourth toe, in order to debride the left side of the fourth toe. As he grasped the toe, the bone of the toe disconnected from the metatarsal joint and was connected only by tendon and necrotic tissue. There is no evidence that the toe was in proper condition to be saved. Using the scalpel, the Respondent cut the tendon and removed the toe. After the toe was removed, the joint and bone were exposed from the wound. The Respondent took a small clipper called a "ronguer" and removed the top of the metatarsal joint. The ronguer is part of the standard set of surgical instruments which is set out for use during debridement. The removal of the bone was medically indicated, given the condition of the foot. After the toe was removed, the toe was handed to Ms. Pratt, who was receiving the debrided tissue at a table facing away from the operating site. She inquired as to how to label the material. The Respondent told her to label it as "debridement of right foot." Because the toe was visibly a toe, he assumed that she was referring to the remaining tissue which had been removed. Apparently assuming that the Respondent was attempting to conceal the removal of the toe, Ms. Pratt asked her supervisor how the tissue should be labeled, and was told to label it as "toe and debridement." There is no credible evidence that the Respondent attempted to conceal the fact that a toe had been removed. The toe was clearly identifiable and visible in the debrided material. Everyone in attendance at the surgery was aware that the toe had been removed. After the removal of the necrotic toe, the Respondent continued the debridement and completed the procedure. Immediately following completion of the procedure, the Respondent dictated his operative report, which identified the procedure as "debridement of right foot and amputation of fourth toe." After the patient recovered from the procedure, the Respondent discussed the procedure with her. He told her that her toe had fallen off (or words to that effect) during the debridement. He also discussed the manipulation, dislocation and subsequent removal of the toe. It is reasonable for a physician to speak to a patient in non-medical terminology in order to provide information which can be easily understood by the patient. The evidence fails to establish that the Respondent attempted to conceal the nature of the procedure from the patient. All of the tissue removed from the patient, including the toe, was sent to the hospital pathology department for examination. There is no evidence that the Respondent attempted to obstruct or prevent the delivery of any debrided material to pathology. Pathological review of the toe is consistent with debridement performed by sharp dissection; however, the toe joint reveals no sharp dissection other than at the metatarsal head, which was removed by clippers after the dislocation and removal of the digit. A toe amputation generally results in a one-piece specimen as the toe is usually removed by cutting through the bone above the metatarsal joint. The specimen in this case was in two pieces, the piece that disconnected from the joint, and the joint section which was cut off by the Respondent after the dislocation and removal of the digit. The technique used in the July 11, 1995 procedure was not standard for amputation. The Respondent removed the necrotic tissue from the toe. There is no reason to have debrided the toe had he planned to remove it entirely. The toe was not removed using bone cutters. The evidence fails to establish that the Respondent intended to amputate the toe prior to beginning the debridement procedure on July 11, 1995. The evidence establishes that due to the condition of the patient's foot, the Respondent should have known that the toe could become disconnected and should have obtained the patient's consent for removal of the toe, if and when the disconnection occurred. It would be reasonable to consider, given the patient's osteomyelitis, that during the debridement, the toe bone could have fractured, or that the tissue, tendon, fascia and capsule of the toe could be eroded or weakened, resulting in dislocation or separation of the toe from the normal anatomic position. According to an expert for the Respondent, a planned debridement resulting in an amputation of the toe after it disengages or dislocates is not unique, and in fact has occurred in his personal experience. The Respondent did not discuss with the patient the possibility that the toe could disconnect and have to be removed during the procedure. The standard of care for obtaining surgical consent requires that a surgeon discuss the risks and benefits of an operative procedure with the patient. In this case, although the Respondent discussed the risks and benefits of the surgery with the patient, he did not address the possibility that the necrotic toe could become disconnected and have to be removed. The consent form executed by Patient number 2 does not authorize the Respondent to amputate the toe if it detached from the foot during the debridement. Although the consent form authorized by the patient permitted the Respondent to act beyond the boundaries in the event of "unusual circumstances," the evidence fails to establish that the disconnection of a necrotic toe during the debridement of this patient's right foot can reasonably be identified as an unusual circumstance. The Petitioner asserts that at the time the toe became disconnected, the surgical procedure should have been halted, the patient allowed to recover and that the Respondent should have obtained the patient's consent to remove the detached necrotic toe. Given the circumstances of this case, the Petitioner's assertion is unreasonable. After the debridement, the condition of the patient's did not improve. It remained infected and necrotic. Eventually, a right below knee amputation was performed on Patient number 2.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Agency for Health Care Administration enter a Final Order determining that Rolando Roberto Sanchez has violated Sections 458.331(1)(p) and (t), Florida Statutes, and suspending his license for a period of two years from the date of the Emergency Order of Suspension, imposing a fine of $15,000 and placing the Respondent on probation for a period of five years from the date upon which the suspension expires. Further, during the period of probation, the Respondent shall not perform any surgical procedure without the direct supervision of a licensed physician who, prior to the commencement of the surgery, shall certify that the anatomical site which has been prepared for surgery is correct. DONE and RECOMMENDED this 19th day of October, 1995, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 19th day of October, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3925 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact were inappropriately numbered and set forth in separate sections. For purposes of the following, the proposed findings have been re-numbered consecutively beginning from the section titled "FACTS," and are accepted as modified and incorporated in the Recommended Order except as follows: 20-21. Rejected, subordinate. 22. Rejected as to "good medical practice" of cited witness, irrelevant. 30. Rejected as to Ms. Pratt's expertise or knowledge which would establish that the toe "would come off" if the foot were touched, not supported by the greater weight of the evidence. 33-34. Rejected, not supported by the greater weight of credible and persuasive evidence. The implication is that the Respondent requested that the witness obtain a "Horsley" bone cutter to permit removal of the toe. The evidence fails to establish that a Horsley bone cutter was obtained by the witness, notwithstanding her assertion that the Respondent directed her to do so. The evidence fails to establish that the witness could clearly view the procedure. The witness did not see the toe being debrided prior to the toe's dislocation from the foot; however, the evidence establishes that the toe was debrided. 35. Rejected, cumulative. Rejected, contrary to the greater weight of credible and persuasive evidence. Rejected, irrelevant. There is no credible evidence that in postoperative notation, the Respondent attempted to conceal the surgical procedure performed on Patient number 2. The cited witness acknowledged that her recollection of the conversation with the Respondent was not an exact quoting of his remarks. Rejected, immaterial. There is no credible evidence that the children were authorized to consent to any procedure on behalf of the patient. Rejected, contrary to the greater weight of credible and persuasive evidence. Rejected, recitation of testimony is not finding of fact. Rejected, subordinate. 45. Rejected, recitation of testimony is not finding of fact. 46-47. Rejected, cumulative. Rejected, recitation of testimony is not finding of fact. Rejected, cumulative. Rejected, recitation of testimony is not finding of fact. Rejected, unnecessary. 52-53. Rejected, recitation of testimony is not finding of fact. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 8. Rejected, unnecessary. Goes to the credibility of his testimony which has been determined in, and is reflected by, the Findings of Fact set forth herein. 10-11. Rejected, subordinate. 22. Rejected, subordinate. 23-24. Rejected, irrelevant. The evidence fails to establish that such "reasonable reliance" relieves a surgeon of responsibility for performance of an improper procedure. 26. Rejected as to assertion that "ninety percent" of Florida surgeons "would have made the same mistake," not supported by credible evidence. 31-33. Rejected, subordinate. Rejected. There is no evidence that on February 20, 1995, the Respondent performed any review of medical records or examined the patient whatsoever prior to beginning the surgery. Rejected, unnecessary. 42. Rejected, not supported by the weight of credible and persuasive evidence. 43-48. Rejected, cumulative. 51. Rejected as to race of patient, immaterial. 63. Rejected, irrelevant. 66-70. Rejected, cumulative. Rejected, subordinate. Rejected, recitation of testimony is not finding of fact. Rejected, subordinate. Rejected, recitation of testimony is not finding of fact. Rejected, irrelevant. There is no credible evidence as to Ms. Pratt's knowledge that the toe "might fall off" of the foot. Rejected, recitation of testimony is not finding of fact. Rejected, subordinate. Rejected, recitation of testimony is not finding of fact. 105-107. Rejected, subordinate. 108-110. Rejected, unnecessary. 112. Rejected, contrary to the greater weight of credible and persuasive evidence. Rejected, cumulative. Rejected, contrary to the greater weight of credible and persuasive evidence. 120-121. Rejected, contrary to the greater weight of credible and persuasive evidence. There is no credible evidence that the patient was told that the toe could dislocate and require removal during the debridement, or that "debridement of a right foot can include removal of digits, including portions of the mid-foot." 122. Rejected, contrary to the greater weight of credible and persuasive evidence which establishes that the disarticulation was not unique or unpredictable. 125-127. Rejected, immaterial. 128-141. Rejected, unnecessary, irrelevant. These proposed findings are based on Respondent's Exhibit number 13, a collection of Final Orders issued by the Petitioner (or a predecessor agency) wherein various physicians were the subject of disciplinary action. None of the cited cases involved the incorrect and complete surgical amputation of an extremity, or involve the failure to reasonably anticipate the possible complications of a procedure and the failure to obtain consent from the patient to resolve the complication. The cited cases involve factual situations sufficiently distinguished from those at issue in this case. COPIES FURNISHED: Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Dr. Marm Harris, Executive Director Board of Medicine Agency for Health Care Administration Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Steven Rothenberg, Esquire Agency for Health Care Administration 9325 Bay Plaza Boulevard, Suite 210 Tampa, Florida 33619 Michael K. Blazicek, Esquire STEPHENS, LYNN, KLEIN & McNICHOLAS, P.A. 4350 West Cypress Street, Suite 700 Tampa, Florida 33607
Findings Of Fact Respondent has been licensed as an osteopathic physician in Florida since 1952 and currently holds License Number 959 issued by Petitioner (stipulation, testimony of Respondent). On June 15, 1972 Respondent was convicted of three counts of violation of the Drug, Device and Cosmetic Act of 1961, Section 4, Laws of Pennsylvania. As a result of these convictions, Respondent was incarcerated for a two-year period from 1972 to 1974. He was released on bond and again incarcerated from the Spring of 1977 until September, 1977 (stipulation, testimony of Respondent). Subsequent to his release from confinement on parole, Respondent taught several night school courses at Duquesne University, Pittsburgh, Pennsylvania and also was employed by VISTA for approximately one year. In November, 1978, he commenced an osteopathic practice in St. Petersburg, Florida (testimony of Respondent, Respondent's Exhibit 2). On November 8, 1973, the Pennsylvania State Board of Osteopathic Examiners revoked Respondent's license to practice osteopathic medicine and surgery in Pennsylvania based on his criminal convictions (stipulation, petitioner's Exhibit 1). In February, 1979, parole supervision of Respondent was transferred from the State of Pennsylvania to the State of Florida. The parole and probation office in St. Petersburg files periodic reports to parole authorities in Pennsylvania. During the period of Florida parole supervision, Respondent has been cooperative with his parole and probation officer and has not been difficult to supervise. The maximum expiration date of Respondent's parole status is September 5, 1983. Release from such status will be determined by the State of Pennsylvania. In April, 1979, Respondent received a hearing before the Pennsylvania Board of Pardons based upon his application for commutation of sentence, but has not received a decision on the application at this time (testimony of Ferriter, Respondent, Respondent's Exhibit 3). Respondent entered into a brief "physician assistance agreement" with the St. Petersburg Osteopathic Hospital after his arrival in Florida which provided for mutual under-takings designed to assist Respondent in establishing a practice. This arrangement however, lasted only approximately three and one half months. A number of Respondent's current patients or their relatives testified as to his competence and satisfaction in his methods of treatment. Additionally, Respondent submitted various documents concerning lectures he has made on medical hypnosis to various organizations, and letters from Pennsylvania residents and physicians expressing belief that he is rehabilitated and has contributed by social work in the community. A St. Petersburg pharmacist who is located near Respondent's present office and handles his prescriptions, testified that, to his knowledge, Respondent had not prescribed controlled substances with the possible exception of Valium (testimony of Brown, Lewis, Drake, Bishop, Beville, Hodges, Penvel, Respondent's Exhibits 1-3). In June, 1979, Respondent voluntarily took a polygraph examination from a private examiner in St. Petersburg. Although Respondent was under some tension at the time, he was capable of being tested. The results of the examination indicated deception on the part of Respondent in denying his guilt of the offenses for which he had been convicted in Pennsylvania. The results of the polygraph examination were received in evidence at the hearing by stipulation of the parties (testimony of Liens). Respondent testified as a witness at the hearing. He stated that his practice currently consists of natural and preventive medicine, including ortho molecular therapy. He further testified that he does not prescribe controlled substances since his patients do not need the same due to his natural healing methods. He seeks to maintain his license as a practitioner under a supervised probationary period. His practice is small at the present time and he has only one or two patients a day (testimony of Respondent).
Recommendation That Petitioner revoke the license of Respondent, Maurice L. Kaye to practice osteopathic medicine, but that the operation of such revocation be suspended for the period and in the manner stated in Paragraph 8 of the foregoing Conclusions of Law. DONE and ENTERED this 15th day of August, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire Post Office Drawer 1838 Tallahassee, Florida 32302 Maurice L. Kaye, D. O. Post Office Box 14202 St. Petersburg, Florida 33733
Findings Of Fact At all material times, Respondent has been a licensed physician, holding Florida license number ME 0047032. In June 1988, Respondent worked as an emergency room physician at East Point Hospital emergency room. He had been so employed since 1987. At 11:26 pm on June 10, 1988, the wife of A. L., a 71 year old male, summoned an ambulance for her husband, who had been suffering from severe headaches and vomiting. He was transported by ambulance to the East Point Hospital emergency room at 11:55 pm. The notes of the admitting nurse state that A. L.'s headache started about 9 pm and he had vomited twice at home, but without signs of bleeding or diarrhea. He vomited once at the hospital and had a history of five heart attacks. The stated patient complaint is severe headache. The vital signs were normal. The admitting notes record that A. L. was taking numerous medications. Of particular importance is Coumadin, which is an anticoagulant whose chief side effect is bleeding. There is an increased risk of intracranial bleeding associated with the use of Coumadin. Respondent's notes record a frontal headache of three to four hours' duration with intermittent sinus problems for several months. The notes reflect a physical examination that disclosed some tenderness over frontal and maxillary sinuses, which are above and below the eyes. Respondent did not perform a neurological examination. A neurological examination is an examination of the cranial nerves, including the nerves of the eyes and head, and an assessment of motor strength and reflexes. Respondent claims to have performed a neurological examination and also that an examination of the eyes was precluded by recent cataract surgery. He testified that he did not document the neurological examination because the vital signs were good, the patient was alert and cooperative, and the problem was a sinus headache. As to checking motor strength, Respondent testified, "I did check his extremities. I think he was moving around." Respondent's claim to have performed an undocumented neurological examination is uncredited. Even if eye surgery precluded an examination of the eyes, Respondent did not examine other nerves of the head. Nor did he even claim to have tested reflexes. His claim to have tested motor strength is based on the assertion, "I think he was moving around." Motor strength involves more than self-ambulation. Respondent's failure to perform a neurological examination constituted a failure to practice medicine with the level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being acceptable under similar conditions. Following his examination of A. L., Respondent observed A. L. for about an hour. When A. L. reported he was feeling better, Respondent allowed A. L.'s wife to take him home with instructions to return if there were more problems. Respondent's diagnosis was sinusitis with headache, and he prescribed 50 mg of Demerol for pain. About an hour and a half after discharge, A. L. fell into a stupor. Returned to the hospital in an ambulance, A. L. was in an unresponsive state. Subsequent testing revealed that he had suffered a subdural hematoma and intracerebral hemorrhage. He died a week later. Petitioner did not prove that Respondent's failure to order a CT scan was a violation of the minimum standard of care. A. L. had a long history of sinus problems. The severe headache and use of Coumadin were not, of themselves, sufficient cause to mandate a CT scan without implying that all patients taken to the emergency room complaining of severe headaches must be given CT scans. Respondent's failure to perform a neurological examination and misdiagnosis probably had no bearing on A.L.'s prognosis. Intracranial bleeding is not susceptible to surgical correction, although a subdural hematoma is. In fact, the neurological exam might not have clearly indicated the presence of the intracranial bleeding, although, properly interpreted, it should have indicated the necessity of a CT scan, which typically would indicate the presence of intracranial bleeding. There is no evidence whatsoever that any delay in bringing the case to the Probable Cause panel or filing the Administrative Complaint had any prejudicial impact upon Respondent.
Recommendation It is RECOMMENDED that the Board of Medicine enter a final order imposing an administrative fine against Respondent of $5000. ENTERED on May 18, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on May 18, 1995. APPENDIX Rulings on Petitioner's Proposed Findings and 3: rejected as irrelevant. and 4-25: adopted or adopted in substance. 26-30: rejected as unsupported by the appropriate weight of the evidence, irrelevant, and unnecessary. 31: adopted. 32: rejected as repetitious. 33-36: rejected as irrelevant except that an intracerebral hemorrhage is an inoperable condition. Rulings on Respondent's Proposed Findings All rejected as not findings of fact, irrelevant, unsupported by the record, and legal argument. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792 Attorney Joseph S. Garwood Agency for Health Care Administration 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Dr. Rufus Paul Palmer 5581 Amoroso Drive Ft. Myers, FL 33919
The Issue Whether the Petitioner committed the violation alleged in the Administrative Complaint dated April 2006, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with the responsibility for investigating and prosecuting complaints against persons holding licenses in the health professions and occupations, including chiropractic physicians. See § 456.073, Fla. Stat. The Board of Chiropractic Medicine ("Board") is the entity charged with the responsible for imposing penalties against chiropractic physicians for violations of Section 460.413(1), Florida Statutes. See § 460.413(2), Fla. Stat. At the times material to this proceeding, Dr. Whitney was a chiropractic physician licensed to practice chiropractic medicine in Florida, having been issued license number CH 4840. Dr. Whitney's address of record is 1011 North Federal Highway, Unit 106, Hallandale Beach, Florida 33009. Dr. Whitney has been a licensed chiropractic physician in Florida since January 1985 and has never had disciplinary action taken against his license. On or about September 7, 2001, Williston Orthopedic Rehab, Inc. ("Clinic"), opened in Williston, Florida. Dr. Whitney was the medical director of the Clinic; Robert Andrews was the owner of the Clinic. Mr. Andrews had worked with Dr. Whitney in his chiropractic practice for more than 10 years. A sign was erected in front of the Clinic identifying the facility and the services provided. Dr. Whitney's name, "Dr. Robert Whitney," was prominently shown on the sign, and he was identified as "Medical Director." The services provided by the Clinic, as shown on the sign, were as follows: Automobile Accidents - Injuries Work Related Injuries Physical Therapy Alternative Medicine Chiropractic Care Massage On or about September 7, 2001, several photographs were taken of Dr. Whitney and others standing in front of the sign. The photographs appeared in the September 13, 2001, edition of both The Williston Pioneer newspaper and of the Williston Sun Suwannee Valley News newspaper, together with articles about the new Clinic, its staff, and the services offered. Dr. Whitney was identified in one article as a "Doctor of Chiropractic," and Mr. Andrews was identified in the same article as the "practice administrator." Dr. Whitney had no ownership interest in the Clinic and had no role in the administration of the Clinic. His primary duty as medical director was to review charts, and he worked at the Clinic part-time. Mr. Andrews ordered the sign that was placed in front of the Clinic, and Dr. Whitney was not consulted about the information that was to be placed on the sign or asked to approve the contents of the completed sign. Dr. Whitney did not see the sign prior to arriving at the Clinic on or about September 7, 2001, to have his photograph taken for the newspaper stories. As soon as Dr. Whitney saw the sign, he notified Mr. Andrews that it failed to identify him as a chiropractic physician. Dr. Whitney immediately told Mr. Andrews to have the sign modified to include the designation "D.C." after his name. Mr. Andrews agreed to modify the sign, but he failed to have the sign corrected. The sign remained in front of the Clinic for several weeks before it was removed. Dr. Whitney left his position at the Clinic several weeks after he asked Mr. Andrews to correct the sign. The sign in front of the Clinic was misleading in that it did not, in any manner, identify Dr. Whitney as a chiropractic physician. He was identified only as "Dr. Robert Whitney," the "Medical Director" of the Clinic. The inclusion of "chiropractic care" among the services provided at the Clinic is not sufficient, standing alone, to provide notice to the public that Dr. Whitney is a chiropractic physician. Although Dr. Whitney did not disseminate or cause the dissemination of the misleading information in the sign, the sign remained outside the Clinic for several weeks with his apparent acquiescence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order finding Robert Whitney, D.C., guilty of having violated Section 460.413(1)(d), Florida Statutes, and imposing a penalty consisting of a $500.00 administrative fine and a letter of concern. DONE AND ENTERED this 31st day of July, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 31st day of July, 2007.
Findings Of Fact Aurora Jones was born on September 2, 2010, at Osceola Regional Medical Center in Kissimmee, Florida. Aurora weighed 7 pounds and six ounces (3,345 grams) at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Aurora. In a medical report dated December 4, 2012, Dr. Willis opined: In summary, the mother was admitted in labor at 41 weeks. Vaginal delivery was accomplished without apparent difficulty. The baby was not depressed at birth. However, excessive oral sections were noted at time of delivery. A cranial nerve dysfunction was subsequently diagnosed, which resulted in poor swallowing and excess oral sections. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during delivery or the immediate post delivery period. NICA engaged Michael S. Duchowny, M.D., a Florida board-certified pediatric neurologist to review the medical records of Aurora, to conduct an examination of Aurora, and to render an opinion whether a birth-related neurological injury occurred. In a report dated March 27, 2013, Dr. Duchowny opined: The combined evidence from the record review and physical examination do not suggest that Aurora has a substantial mental impairment. Furthermore, there is no evidence of either mechanical injury or oxygen deprivation in the course of labor, delivery or the postdelivery period. Rather, it is more likely that Aurora has primary neuromuscular disorder, either congenital myopathy or dystrophy or a genetic disorder producing prominent motor involvement. She has never had a muscle biopsy which might be useful in ascertaining a diagnosis. I, therefore, do not recommend Aurora for inclusion in the NICA program. A review of the file does not show any contrary opinions, and Petitioner has no objection to the issuance of a summary final order finding that the injury is not compensable under the Plan. The opinions of Dr. Willis and Dr. Duchowny that Aurora did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or the immediate postdelivery period are credited. Dr. Duchowny's opinion that Aurora does not have a permanent and substantial mental impairment is credited.
