The Issue The issue in this case is whether Respondent, Arnaldo Carmouze, P.A., committed violations of Chapter 458, Florida Statutes (2001), alleged in an Administrative Complaint filed with Petitioner on February 25, 2004, in DOH Case Number 2002- 16502, as amended; and, if so, what disciplinary action should be taken against his license to practice as a physician assistant 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 and physician’s assistants licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 458, Fla. Stat. Respondent, Arnaldo Carmouze, P.A., is, and was at the times material to this matter, a physician's assistant licensed to practice in Florida, having been issued license number PA 9100713. Mr. Carmouze's address of record at all times relevant to this matter is 6545 Southwest 95th Avenue, Miami, Florida 33173. No evidence that Mr. Carmouze has previously been the subject of a license disciplinary proceeding was offered. Mr. Carmouze's Supervising Physician. At the times relevant Mr. Carmouze worked under the supervision of Dr. Manuel Fernandez-Gonzalez, a physician licensed to practice medicine in Florida. Dr. Fernandez-Gonzalez, who has practiced emergency medicine, holds Florida medical license number ME 17907. Dr. Fernandez-Gonzalez currently practices family medicine at 9600 Southwest 8th Street, Miami, Florida. Prior to April 2002, Dr. Fernandez-Gonzalez and Mr. Carmouze worked together in Miami, providing emergency room care and seeing patients at a nursing home. The emergency room services were provided pursuant to employment contracts that both had entered into with a company providing emergency room services at the hospital in south Florida where Dr. Fernandez- Gonzalez and Mr. Carmouze provided services. Mr. Carmouze's Assignment to Weems Memorial Hospital. The company for which Mr. Carmouze was employed also provided emergency room services for Weems Memorial Hospital (hereinafter referred to as "Weems"). Weems is located in Apalachicola, Florida, located in the Florida Panhandle, approximately 520 miles from Miami. Weems is a rural hospital, licensed under Chapter 395, Florida Statutes. It does not have 24-hour, on-site ancillary services such as X-ray, laboratory, and respiratory therapy. These services are available to the emergency room on an on-call basis after business hours. At the times relevant, Malvinder Ajit, M.D., a Florida licensed physician, was the Director of the Emergency Department at Weems. Dr. Ajit has not provided any documentation to the Department indicating that he has ever acted as supervising physician of record for Mr. Carmouze. Mr. Carmouze was assigned by the company by which he was employed to work in the emergency room at Weems in April 2002 and again in June 2002. He worked in the emergency room at Weems as a physician's assistant for part of April 2002, and part of June 2002. While at Weems, Mr. Carmouze provided emergency room medical services to more than 100 patients. While working at Weems, Dr. Fernandez-Gonzalez, who remained in Miami, continued to act as Mr. Carmouze's supervising physician. Mr. Carmouze did not notify the Department that he was practicing as a physician's assistant at Weems in April or June 2002. The evidence, however, failed to prove that Mr. Carmouze was working for, and thus "employed," by anyone different from the employer that he worked for in Miami. The only evidence on this issue proved that Mr. Carmouze continued throughout the relevant period to work for Dr. Fernandez-Gonzalez and the company that provided emergency room services at Weems. Dr. Carmouze's Treatment of Patient A.M. On June 7, 2002, Patient A.M., an 84-year-old female, was brought to the emergency room (hereinafter referred to as the "ER"), at Weems by ambulance. She arrived at approximately 23:24 hours (11:24 p.m.). A.M.'s medical history included congestive heart failure, coronary artery disease, and atrial fibrillation. She presented to Mr. Carmouze in apparent respiratory distress (respiratory rate of 36 to 40), had no measurable blood pressure, and a pulse rate of 100 to 108. While being transported to the ER from her home, A.M. was given oxygen by rebreather mask. During her transport, her oxygen saturation level improved from 68% to 91%. Mr. Carmouze assessed A.M.'s condition, obtained her medical history, ordered lab work and other tests, and ordered and initiated nebulizer treatments for her. She was alert, oriented and had a Glasgow score of 15/15, indicating she was responding to verbal and pain stimuli. Mr. Carmouze ordered nebulizer treatments with albuterol and atrovent to assist her breathing. Additionally, A.M. received 100% oxygen through a nonrebreather mask. Mr. Carmouze also determined that A.M. was "dry," meaning that her fluid volume was depleted and, therefore, she was dehydrated. As a result, her blood pressure was low. In an effort to treat this condition, Mr. Carmouze ordered an I.V. with 0.9 normal saline. He also ordered a Dopamine drip to increase A.M.'s heart rate in an effort to increase her blood pressure. Mr. Carmouze appropriately denied a request from a nurse to administer Lasix to A.M., because A.M. was "dry." Lasix is a diuretic used to decrease fluid volume. It opens the arteries and reduces fluids, thereby lowering blood pressure. Lasix was contraindicated for A.M. and contrary to the appropriate efforts initiated by Mr. Carmouze to treat A.M.'s low blood pressure. Despite Mr. Carmouze's treatment of A.M., her condition continued to deteriorate. At or near 23:50 hours (11:50 p.m.), approximately 25 minutes after A.M. had arrived at the ER, an ER nurse contacted A.M.'s primary physician by telephone and obtained an order to administer Lasix to A.M. The Lasix was administered immediately. A.M.'s oxygen saturation level was 81%, down 10 points since her arrival, when the Lasix was administered. Within half an hour, at 0:18 hours (18 minutes after midnight) on June 8, 2002, A.M.'s oxygen saturation level had dropped another 10 points, to 71%. A.M. then "crashed and coded." Mr. Carmouze initiated appropriate emergency measures when A.M. coded, including initiating Cardio Pulmonary Recitation and endotracheal intubation. A.M. was given epinephrine, atropine, and a CVP line was placed. These actions by Mr. Carmouze were appropriate. Mr. Carmouze did not attempt or order that A.M. be intubated prior to 0:18 hours when she coded. A.M.'s primary physician, Dr. Sanaullah, arrived at the ER. Shortly after she coded, Dr. Sanaullah continued the same efforts initiated by Mr. Carmouze. A.M., however, did not recover, expiring at 01:00. The "Standard of Care" for Treating A.M. Four expert witnesses testified in this matter, rendering opinions as to whether Mr. Carmouze's treatment of A.M. was consistent with "that level of care, skill, and treatment which is recognized by a reasonably prudent similar [physician assistant] as being acceptable under similar conditions and circumstances. . . " (hereinafter referred to as the "Standard of Care"). The expert witnesses who testified were Dr. Fernandez-Gonzalez, Dr. Julio Lora, Dr. Harry W. Lee, and James L. Cary, P.A. Dr. Fernandez-Gonzalez's testimony as to whether Mr. Carmouze treated A.M. within the Standard of Care is rejected for lack of credibility. Dr. Fernandez-Gonzalez's testimony has been found to lack credibility for the reasons explained by Petitioner in paragraph 25 of Petitioner's Proposed Recommended Order. That paragraph, except for the last two sentences, is hereby adopted. Additionally, Dr. Fernandez- Gonzalez's testimony is rejected because, in the undersigned's judgment, he made too much of an effort to give the answers that he appeared to conclude that Mr. Carmouze wanted him to give. The testimony of Dr. Lora on the other hand is found to be credible. Dr. Lora, testifying as an expert in cardiology and internal medicine, offered convincing explanations as to why Mr. Carmouze did not violate the Standard of Care in his overall treatment of A.M. and, in particular, in not attempting to intubate A.M. earlier than he did. Dr. Lee's testimony, while corroborating Dr. Lora's testimony, was cumulative and of little weight. A.M. was reported to be awake, alert, and oriented. She was breathing, albeit with difficulty, on her own. Therefore, it was appropriate for Mr. Carmouze to attempt the other measures to assist her breathing he instituted. Mr. Cary's testimony, while credible, was not convincing, especially given Dr. Lora's expert opinions. Mr. Cary's testimony was taken during a discovery deposition by Respondent and, as a result, the benefit of his testimony to Petitioner's case was limited. The evidence failed to prove that Mr. Carmouze violated the standard of care: In his treatment of A.M.; By failing "to contact his supervising physician, the ED director, and/or Patient A.M.'s primary physician for assistance in treating Patient A.M."; By failing "to identify a treatment plan for Patient A.M."; and By failing "to consult his supervising physician prior to ordering Demerol, a controlled substance, for Patients C.M., J.S., B.M., R.M., M.F., G.C., G.B., K.S., C.W., M.A.C., R.S., and K.M." Mr. Carmouze's Treatment Plan and Medical Records for Patient A.M. Mr. Carmouze, as the Department has conceded in Petitioner's Proposed Recommended Order, paragraph 13, page 20, did identify a treatment plan for Patient A.M. Having found that Mr. Carmouze did not err when he did not initiate intubation of A.M. earlier than he did, the evidence failed to prove that "he failed to maintain medical records that justified the course of treatment in that he failed to record a reason for not intubating sooner in an attempt to address Patient A.M.'s respiratory distress." There is no indication in Mr. Carmouze's medical records for A.M. that Mr. Carmouze attempted to contact Dr. Ajit or Dr. Fernandez-Gonzalez. The medical records do indicate, however, that A.M.'s primary physician, Dr. Sanaullah, was "notified and arrived for code." While the evidence did not prove who notified Dr. Sanaullah, Petitioner failed to prove that Mr. Carmouze was not responsible for Dr. Sanaullah's notification. Mr. Carmouze failed to identify himself by name or professional title in A.M.'s medical records. He also failed to include Dr. Fernandez-Gonzalez's name and title in A.M.'s medical records. Mr. Carmouze did not ensure that either the signature of his supervising physician or Dr. Ajit was included on A.M.'s medical records. While the quality of Mr. Carmouze's medical records for A.M. was correctly characterized as "minimally acceptable" by Mr. Cary, the evidence failed to prove clearly and convincingly that those medical records were not adequate. This finding is based upon the lack of an unequivocal opinion from Mr. Cary concerning the adequacy of the medical records and a comparison of Mr. Cary's opinions with those of Dr. Lee in support of Mr. Carmouze's medical records for Patient A.M. Mr. Cary, on the one hand, made the following negative comments about Mr. Carmouze's medical records for A.M: "[T]he record isn't really clear on what did happen because he did not write down any times on intervention of what he did." Petitioner's Exhibit numbered 1, page 14; "[W]hen you look at this face sheet here you don't get a picture of what happened and at what time, there's no real times there, no progression of the treatment." Petitioner's Exhibit numbered 1, page 67. Mr. Cary stated that there was no time noted in Patient A.M.'s history/physical section, and that a portion of that section was illegible. Petitioner's Exhibit numbered 1, page 21 and 25. On the other hand, Mr. Cary stated that "[the medical record for A.M.] is minimally acceptable, it just doesn't give a good clear picture of the sequence of events." Petitioner's Exhibit numbered 1, page 68. Mr. Cary also stated the following when asked if he thought Mr. Carmouze maintained medical records that justified the course of his treatment regarding Patient A.M.: "There were medical records that were there, I think they could have been more complete and more detailed . . . ." These statements, taking into account the fact that Mr. Cary was able to read almost all of Mr. Carmouze's medical record pertaining to A.M. on direct examination by counsel for Mr. Carmouze, reduces the effectiveness of his other opinions. Finally, it is noted that all of Mr. Carmouze's experts, along with Mr. Cary, were able to read Mr. Carmouze's notes, other than a word or two. Patients C.M., J.S., B.M., R.M., M.F., G.C., G.B., K.S., C.W., M.A.C., R.S., and K.M. Patient C.M. On April 23, 2002, Patient C.M., a 20-year-old male presented to Mr. Carmouze at Weems' ER. C.M. complained of a server headache. In pertinent part, Mr. Carmouze ordered 50 milligrams of Demerol and 50 milligrams of Vistaril. Patient J.S. On April 24, 2002, Patient J.S., a 37-year-old female presented to Mr. Carmouze at Weems' ER. J.S. complained of a burn. In pertinent part, Mr. Carmouze ordered 50 milligrams of Demerol and 50 milligrams of Vistaril. Patient B.M. On April 24, 2002, Patient B.M., a 46-year-old female, presented to Mr. Carmouze at Weems' ER. B.M. complained of a headache of two-days' duration. In pertinent part, Mr. Carmouze ordered 25 milligrams of Demerol administered to B.M. at the ER. Mr. Carmouze noted in the medical record for B.M. a diagnosis of scabies/headache cluster, severe. This is the only diagnosis made at Weems' ER for B.M. Patient R.M. On April 24, 2002, Patient R.M., a 73-year-old male, presented to Mr. Carmouze at Weems' ER. R.M. complained of abdominal pain and constipation of several days’ duration. In patient part, Mr. Carmouze ordered 50 milligrams of Demerol and 50 milligrams of Vistaril administered to R.M. at the ER. Mr. Carmouze noted in the medical record for R.M. a diagnosis of abdominal pain, impaction. This is the only diagnosis made at Weems' ER for R.M. Patient M.F. On April 25, 2002, Patient M.F., a 34-year-old female, presented to Mr. Carmouze at Weems' ER. M.F. complained of left-flank pain. In relevant part, Mr. Carmouze ordered 50 milligrams of Demerol and 50 milligrams of Vistaril administered to M.F. at the ER. Mr. Carmouze noted in the medical record for M.F. a diagnosis of left-flank pain, left nephrolithiasis. Patient G.C. On June 7, 2002, Patient G.C., a 20-year-old male, presented to Mr. Carmouze at Weems' ER. G.C. complained of right-flank pain. In relevant part, Mr. Carmouze ordered two separate doses of Demerol, 50 milligrams each, and Vistaril, 50 milligrams each. Patient G.B. On June 7, 2002, Patient G.B., an 83-year-old female, presented to Mr. Carmouze at Weems' ER. G.B. complained of wrist, knee, and leg pain, secondary to a fall. In relevant part, Mr. Carmouze ordered two separate doses of Demerol, 50 milligrams each, and Vistaril, 50 milligrams each. Mr. Carmouze noted in the medical record for G.B. a diagnosis of chest contusion, leg edema, and right Colles' fracture. This is the only diagnosis made at Weems' ER for G.B. Patient K.S. On June 8, 2002, Patient K.S., an 18-year-old female, presented to Mr. Carmouze at Weems' ER. K.S. complained of lower back pain secondary to a fall. In relevant part, Mr. Carmouze ordered Demerol, 50 milligrams, and Vistaril, 50 milligrams. Mr. Carmouze noted in the medical record for K.S. a diagnosis of intractable back pain, trauma to spine. This is the only diagnosis made at Weems' ER for K.S. Patient C.W. On June 8, 2002, Patient C.W., a 46-year-old female, presented to Mr. Carmouze at Weems' ER. C.W. complained of headache and dizziness. In relevant part, Mr. Carmouze ordered Demerol, 50 milligrams, and Vistaril, 50 milligrams. Mr. Carmouze noted in the medical record for C.W. a diagnosis of headache and anemia. This is the only diagnosis made at Weems' ER for C.W. Patient M.A.C. On June 9, 2002, Patient M.A.C., a 49-year-old female, presented to Mr. Carmouze at Weems' ER. M.A.C. complained of pain in the lower right abdomen and back. In relevant part, Mr. Carmouze ordered Demerol, 50 milligrams, and Vistaril, 50 milligrams. Mr. Carmouze noted in the medical record for M.A.C. a diagnosis of diabetes mellitus and abdominal pain. This is the only diagnosis made at Weems' ER for M.A.C. Patient R.S. On June 9, 2002, Patient R.S., a 34-year-old male, presented to Mr. Carmouze at Weems' ER. R.S. complained of shoulder pain. In relevant part, Mr. Carmouze ordered Demerol, 50 milligrams, and Vistaril, 50 milligrams. Mr. Carmouze noted in the medical record for R.S. a diagnosis of right shoulder tendon tear. This is the only diagnosis made at Weems' ER for R.S. Patient K.M. On June 11, 2002, Patient K.M., a 52-year-old male, presented to Mr. Carmouze at Weems' ER. R.S. complained of wrist pain secondary to a fall. In relevant part, Mr. Carmouze ordered Demerol, 50 milligrams, and Vistaril, 50 milligrams. Mr. Carmouze noted in the medical record for K.M. a diagnosis of a Colles' fracture. This is the only diagnosis made at Weems' ER for K.S. Facts Common to Patients C.M., J.S., B.M., R.M., M.F., G.C., G.B., K.S., C.W., M.A.C., R.S., and K.M. Mr. Carmouze did not note in his medical records for Patients C.M., J.S., B.M., R.M., M.F., G.C., G.B., K.S., C.W., M.A.C., R.S., and K.M. (hereinafter referred to jointly as the "Pain Patients "), that he had consulted with Dr. Fernandez- Gonzalez or Dr. Ajit prior to ordering Demerol for the Pain Patients. Demerol is a controlled substance. Dr. Fernandez-Gonzalez' testimony regarding alleged consultations he had with Mr. Carmouze concerning the Pain Patients and other patients seen by Mr. Carmouze while at Weems is rejected as lacking credibility for the reasons explained, supra. Mr. Carmouze also failed to note in the medical records for the Pain Patients his name and professional title. His name was stamped on the Emergency Room Record he completed for Patients M.A.C., G.M., and R.S. His name was also written into the space under "Time/Initials" on the Emergency Room Record for Patients M.A.C., C.W., R.M., and J.S. None of these records, however, included his title of "physician assistant." Mr. Carmouze failed to identify Dr. Fernandez-Gonzalez or Dr. Ajit by name and professional title in the medical records of the Pain Patients. Mr. Carmouze failed to ensure that the signature of Dr. Fernandez-Gonzalez or Dr. Ajit was included in the medical records of the Pain Patients. The Other "106 Patients". While at Weems ER, Mr. Carmouze provided medical services, in addition to A.M. and Pain Patients, to 106 other patients at issue in this case (hereinafter referred to as the "106 Patients"). Petitioner's Exhibit numbered 4 is a composite exhibit of medical records for the 106 Patients. There are approximately two patients for whom more than one medical record has been included in Petitioner's Exhibit numbered 4. The foregoing findings relate to the 108 medical records for the 106 Patients. Mr. Carmouze failed to note in most of the medical records for the 106 Patients his name and professional title. Of the approximately 108 records, Mr. Carmouze's name does not appear in any fashion on 48 of them. The rest either include his name (but not title) either stamped on the record or written into the box titled "Time/Initials." On two of the medical records both Mr. Carmouze's name and "P.A." have been written into the box titled "Time/Initials." Mr. Carmouze failed to identify Dr. Fernandez-Gonzalez or Dr. Ajit by name and professional title in the medical records of the 106 Patients. Mr. Carmouze did not ensure that either the signature of his supervising physician or Dr. Ajit was included on the medical records of the 106 Patients.
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, Arnaldo Carmouze, P.A., has violated Subsections 458.331(1)(m) and (v), Florida Statutes, as described in this Recommended Order; issuing a reprimand; placing Mr. Carmouze's license on probation for one year; requiring that he pay an administrative fine of $5,000.00; requiring that he perform five hours of CME in a subject(s) determined appropriate by the Board; and suspending his license for six months (with the suspension stayed provided he complies with probation). DONE AND ENTERED this 13th day of December, 2006, 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 13th day of December, 2006. COPIES FURNISHED: Irving Levine Matthew Casey Assistants General Counsel Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Julie Gallagher, Esquire Greenberg Taurig, P.A. 101 East College Avenue Tallahassee, Florida 32301 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. M. Rony François, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue Whether Respondent, a physician, violated the provisions of Sections 458.331(1)(t) and 458.331(1)(m), Florida Statutes, as alleged in the administrative complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent was licensed as a physician in the State of Florida and held medical license number ME00597713. Respondent graduated from medical school in the Dominican Republic in 1981. Subsequent to medical school, Respondent completed a year residency at St. Clare's Hospital and Memorial Center in New York City, which was affiliated with New York Medical College. Respondent completed a second year of surgical residency at University of Miami, Jackson Memorial Hospital. Respondent then completed one year of flexible residency and three years of internal medicine residency at Mercy Catholic Medical Center, which was affiliated with Thomas Jefferson University in Philadelphia, Pennsylvania. Respondent has practiced as an emergency medicine physician since 1988. Respondent has served as the medical director of the emergency department of Palm Springs General Hospital, Hialeah, Florida, since 1990. At the times pertinent to this proceeding, Respondent was not board certified in any specialty. The administrative complaint centers on Respondent's treatment of patient R. A., a 48 year old male, at the Palm Springs emergency room on December 24, 1991. EMERGENCY ROOM TREATMENT ON DECEMBER 23, 1991 R. A. presented to the Palm Springs emergency room on December 23, 1991, at 3:50 p.m., via ambulance. He complained of severe epigastric pain over the past 24 hours that radiated to the right quadrant of his back. His blood pressure reading was 230 over 110. R. A. reported that he smoked a pack of cigarettes a day, did not drink alcohol, and had no allergies. R. A. also reported that he had not been vomiting. On December 23, 1991, R. A. was treated by Dr. Wilfred P. Fernandez, an emergency room physician employed by Palm Springs. Dr. Fernandez took the patient's medical history and then proceeded with his physical examination. The examination of the head, ears, eyes, nose, and throat were within normal limits. The lungs were clear and the heart rate and rhythm were regular. The abdominal evaluation demonstrated positive bowel sounds and positive epigastric tenderness. There was no guarding or rebound tenderness. A rectal exam revealed there was no blood in the stool. The extremity evaluation was within normal limits, as was the neurological evaluation. Dr. Fernandez ordered several diagnostic studies, including a complete blood count, an EKG, chest x-ray, abdominal film, and gallbladder sonogram. For reasons that were not made clear, the gallbladder sonogram was not performed. All other diagnostic tests were unremarkable. At 4:45 p.m. on December 23, 1991, Dr. Fernandez prescribed the following medications for R. A.: Donnatal, Maalox, Procardia, and Reglan. Donnatal contains a mild sedative and belladonna contains alkaloids to treat spasms. Maalox is an anti-acid. Procardia contains a channel blocker and was used to treat his hypertension. Reglan was administered via IV to clear R. A.'s bowels. R. A. was discharged from the Palm Springs emergency room at approximately 6:30 p.m. on December 23, 1991. On discharge, Dr. Fernandez gave R. A. a tablet of Clondine for his hypertension and prescriptions for Clondine 1 mg. and Zantac 150 mg. Dr. Fernandez instructed R. A. not to smoke, not to drink, and not to operate dangerous machinery while on the prescribed medication. R. A. was instructed to see his personal physician or return to the emergency room if his condition worsened. R. A. did not have his prescription for Clondine or for Zantac filled before his second admission to Palm Springs emergency room on December 24, 1991. EMERGENCY ROOM TREATMENT ON DECEMBER 24, 1991 On December 24, 1991, R. A. presented to Palm Springs emergency room for the second time. R. A. was transported to the emergency room by Hialeah Fire Rescue and arrived at approximately 6:05 p.m. On arrival, R. A. complained of epigastric pain. His vital signs at 6:10 p.m. included his blood pressure reading of 230 over 130. The nurses notes for this visit reflect that the patient had been seen the day before and had received a GI (gastrointestinal) cocktail, which is a reference to the concoction given to him to relieve his epigastric pain. Respondent treated R. A. while he was at the Palm Springs emergency room on December 24, 1991.1 At 6:20 p.m., Respondent performed his initial evaluation of R. A. Respondent took a history from the patient and observed the patient's appearance and composure. R. A. reported that he had not filled his prescriptions from the prior day. He reported to Respondent that he had epigastric pain in the mid-epigastric region that had been ongoing for several days. R. A. also reported that the medications he had received the previous day had helped him. Respondent noted the initial blood pressure on admission and that the patient had not filled his prescription for Clondine. Respondent discussed with R. A. the importance of taking Clondine for his hypertension. After observing the patient initially and obtaining a history, Respondent requested the emergency room records for R. A. from the previous day. He noted that Dr. Fernandez diagnosed the patient's condition as dyspepsia and hypertension. He also noted the laboratory and radiological studies that had been ordered, including that a gallbladder ultrasound had been ordered. The records did not at that time indicate that the gallbladder ultrasound had not been performed. Respondent discussed R. A.'s prior visit with an emergency room nurse who had participated in his treatment on December 23, 1991. The nurse told Respondent that all tests were normal. Respondent understood from what the nurse had told him that the gallbladder ultrasound was also normal. It is common practice for an emergency room doctor to rely on such statements from an emergency room nurse. Respondent thereafter performed an appropriate physical examination of R. A. The patient's eyes were found to be slightly jaundiced (icteric), which was a factor in leading Respondent to suspect that the patient may have had an illness affecting his liver, such as hepatitis. The abdominal evaluation revealed epigastric tenderness on palpation but no rebound. The patient's blood pressure was elevated. All other physical findings were within normal limits. A consistent blood pressure of 230 over 130 or higher is considered hypertension that warrants treatment before discharge. Labile hypertension is the acute elevation of blood pressure caused by anxiety, stress, or pain. Labile hypertension will often resolve itself without treatment once stressors or pain is resolved. A patient with a blood pressure of 230 over 130 who is suspected of suffering labile hypertension should have his blood pressure checked no less than every fifteen minutes to observe whether the hypertension resolves itself. Based on the patient's history and his evaluation and observation of the patient, Respondent determined that R. A. was more likely suffering from labile hypertension than from an emergent condition that warranted emergency treatment of the patient's hypertension. Respondent thereafter administered to the patient what was referred to as a GI cocktail to relieve his epigastric distress. The GI cocktail consisted of Zantac, Connatal, and Viscous Lidocaine and was administered at approximately 6:30 p.m. Respondent believed it likely that the GI cocktail would reduce the patient's pain and result in a lowering of the patient's blood pressure. The emergency room staff checked R. A.'s blood pressure every fifteen minutes and advised Respondent of the readings. Respondent ordered additional tests to evaluate whether the patient's epigastric pains were symptoms of a condition that required emergency care. Respondent ordered a complete blood count, a liver profile, and EKG and an abdominal x-ray. The blood studies came back within normal limits. The liver profile indicated an elevation of serum bilirubin as well as an elevation of the liver enzymes. All other tests were within normal limits. The GI cocktail relieved most of R. A.'s epigastric pain. Because he had lingering discomfort, Respondent administered a small dose of Demerol and Vistaril, which completely relieved R. A.'s pain. Respondent determined that R. A. was not suffering from a condition that required emergency care. He formed the opinion that the patient had hepatitis, but that his condition did not require immediate hospitalization. At approximately 9:00 p.m., R. A. was discharged from the Palm Springs emergency room. At the time of his discharge, R. A.'s blood pressure was approximately 160 over 80, which is within acceptable limits. Prior to his discharge, Respondent spoke with the physician who he thought would be following R. A.'s condition. This physician had treated R. A.'s wife, but he had not treated R. A. The patient was also given the name of a doctor who was on the hospitals primary physician call list. Also prior to discharge the patient was instructed not to drink any alcohol while taking his medication, to fill his prescriptions for Zantac and Clondine, and to follow-up with his primary care physician in three to four days. He was also instructed to eat lightly and increase fluid intake. Respondent told R. A. to return to the emergency room or go to his primary physician if his condition worsened. Respondent's care and treatment of R. A., including his determination that the patient did not require further emergency treatment did not fall below the standard of care imposed on emergency room physicians. As will be discussed below, his diagnosis of hepatitis was incorrect. The testimony of Dr. Dellerson established that the incorrect diagnosis did not fall below the standard of care imposed on emergency room physicians. THE MEDICAL RECORDS FOR DECEMBER 24, 1991 R. A.'s records for the emergency room visit to Palm Springs on December 24, 1991, indicate that his blood pressure reading at 6:45 p.m. was 230 over 170. This is the last recorded blood pressure reading for R. A. on December 24, 1991. Respondent testified, credibly, that R. A.'s blood pressure was checked approximately every 15 minutes and that his blood pressure came down to an acceptable level during the course of his emergency room stay on December 24, 1991,2 but that the records do not reflect those blood pressure readings. While it was the emergency room nurse's responsibility to take and to record that blood pressure, Respondent had the ultimate responsibility for the records as the treating physician. Although Respondent's practice did not fall below the standard of care imposed on emergency room physicians, the records that were kept were inadequate to reflect the patient's condition or to justify the Respondent's course of treatment.3 EMERGENCY ROOM TREATMENT ON DECEMBER 25, 1991 On December 25, 1991, R. A. presented to Jackson Memorial Hospital at approximately 2:10 p.m. He complained of epigastric pain that radiated to his back. He had vomited earlier that morning and had noticed blood in his vomit and blood in his stool. These were complaints and symptoms that were not present the day before. At the time of his presentation, his blood pressure was 160 over 110. The following day a CT scan was performed that led to a diagnosis of gall stones in the gallbladder and in the distal common bile duct, which did not require emergency surgery. R. A. was also diagnosed as having suffered a recent hypertensive stroke. This stroke most likely occurred after the patient presented at Jackson Memorial Hospital.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that dismisses count one of the Administrative Complaint, but finds Respondent guilty of violating Section 458.331(1)(m), Florida Statutes, as alleged in count two of the Administrative Complaint. It is further recommended that Respondent be reprimanded and assessed an administrative fine in the amount of $250.00. DONE AND ENTERED this 14th day of July, 1997, in Tallahassee, Leon County, Florida. Hearings Hearings CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative this 14th day of July, 1997
The Issue The issue for determination in this proceeding is whether the Respondent, the Department of Professional Regulation, should pay the Petitioner, Kirk A. Woodson, M.D., attorney fees and costs under Section 57.011, Fla. Stat. (1989), the Florida Equal Access to Justice Act. As reflected in the Preliminary Statement, the parties stipulate that the Petitioner is a "prevailing small business party" and that reasonable fees and costs exceed $15,000, the statutory cap. The only remaining issue under the statute is whether the Respondent was "substantially justified" in filing the Administrative Complaint in Case No. 90- 5986 against the Petitioner. 1/
Findings Of Fact On or about June 7, 1988, a complaint was filed against the license of the Petitioner, Kirk A. Woodson, M.D., subsequent to closure of a professional malpractice liability claim against him without payment of indemnity. The substance of the complaint was that, on January 1, 1986, Woodson saw and performed a hysterectomy on a patient who had presented at the emergency room at University Community Hospital in Tampa, Florida, with heavy and continuous vaginal bleeding. The complaint stated that post-surgery the patient developed Adult Respiratory Distress Syndrome (ARDS) and died. The complaint questioned whether Woodson failed to practice medicine with that level of care, skill and treatment which a reasonably prudent similar physician recognizes as being acceptable under similar conditions and circumstances. By letter dated June 30, 1988, the Department of Professional Regulation (the Department or DPR) notified Woodson that it had received the complaint and that it was initiating an investigation. DPR subpoenaed the hospital records which revealed that the patient arrived at the UCH emergency room at 5:28 a.m. on January 1, 1986, with at least a three-day history of vaginal hemorraging. An emergency room physician saw the patient, gave her two units of packed blood cells, and admitted her to Woodson's service. Woodson was called at approximately 8:30 a.m. and saw the patient later that morning. The patient's admission to surgery to determine the cause of the bleeding and perform necessary procedures was delayed until at least approximately 2:00 p.m. because the patient refused to consent to a dilation and curettage (D and C); she was insisting on a hysterectomy only. She finally consented to a D and C to be followed by a hysterectomy if Woodson found it to be medically necessary. During this delay, the patient continued to bleed and was transfused with two more units of packed blood cells at approximately 1:45 p.m. After the consent was given, there was a further delay, not explained by the records, until approximately 6:00 p.m. in getting the patient to surgery. The patient continued to bleed. Surgery took almost five hours. During surgery, the patient's bleeding got worse, and she was transfused with four more units of whole blood during the surgery. The DPR investigator was unable to ascertain from the hospital records the reason for the length of the surgery. The DPR investigator attempted to arrange an interview with Dr. Woodson and his attorney on or about February 28, 1989. The appointment was cancelled. When the DPR investigator contacted Woodson to reschedule the interview, Dr. Woodson questioned why DPR was pursuing the complaint when the malpractice claim was closed without payment of indemnity. Dr. Woodson agreed to be interviewed but expressed his preference that the investigator first review the "extensive depositions" taken in the malpractice litigation. 4/ Having already determined to request an expert evaluation of the case, the investigator decided to postpone the interview with Dr. Woodson. On July 10, 1989, the DPR asked a probable cause panel of the Board of Medicine to authorize the retention of an expert in gynecology to review the information obtained through investigation to that point in time to assist in the determination whether Woodson's treatment of the patient fell below that level of care, skill and treatment which a reasonably prudent similar physician recognizes as being acceptable under similar conditions and circumstances. On July 22, 1989, the probable cause met and authorized the expert review. On or about November 2, 1989, the DPR requested an expert review by Doris N. Carson, M.D., a Board-certified gynecologist with extensive surgical experience, including emergency room experience. Dr. Carson reviewed the hospital records supplied by DPR, some of which were difficult to read. By letter dated November 20, 1989, Dr. Carson reported her impressions. Dr. Carson believed the records supported Dr. Woodson's diagnosis and ultimate course of treatment. In the patient's condition, the proper course of treatment was to attempt to stop the vaginal bleeding by doing a D and C; a hysterectomy only should have been attempted if the D and C did not stop the bleeding. However, Dr. Carson perceived other problems that were not explained to her satisfaction by the hospital records. First, Dr. Carson did not see anything in the records to justify the length of the surgical procedures performed by Dr. Woodson. She reported: Careful review indicated that the subject attempted to remove the fibroids vaginally, and when this only increased the bleeding, then decided to do a laparotomy. The uterus, although enlarged, was not huge and the procedure as described seemed to move along without difficulty. When, however, the time is reviewed five hours would indicate very serious problems of technique or what seems more likely a lot if indecision about how to proceed. Evidently there was no physician surgical assistant, and the subject proceeded alone. In retrospect better operationg room help should have been available. Second, Dr. Carson felt that the patient received too much whole blood replacement during the course of the day and the surgery. Her reading of the hospital records indicated to her that five units of whole blood were given to the patient in addition to four units of packed cells. She felt: "Packed cells altogether would have been a better choice in light of the volume given to the patient." Her concern was that "volume overload," rather than ARDS, may have resulted ultimately in the death of the patient. However, she disclaimed the necessary expertise to render a conclusive opinion on the question and recommended that, if the DPR wanted a conclusive opinion on the cause of death, it should have a specialist in intensive care or a respiratory expert review the records. Dr. Carson had some difficulty with the delay in getting the patient to the operating room. The records indicated that at least some of the delay was caused by the patient's unwillingness to give consent to the recommended D and C. But Dr. Carson nonetheless had concerns that the delay added to the amount of blood transfused. Dr. Carson closed her letter with this remark: "In conclusion: A poorly done sugical proceeding below the recognized normal level of care." For reasons not apparent from the evidence presented, DPR did not interview Dr. Woodson before asking the probable cause panel to find probable cause and file a draft Administrative Complaint against Dr. Woodson based on Dr. Carson's expert review and the rest of the investigative report, including the hospital records. The draft Administrative Complaint, drawn in two counts, sought to discipline Dr. Woodson under Count I for failure to practice medicine with that level of care, skill and treatment which a reasonably prudent similar physician recognizes as being acceptable under similar conditions and circumstances, in two respects: first, for allegedly causing volume overload in the patient by ordering units of whole blood, instead of packed blood, to replace the patient's blood loss; and, second, for allegedly taking too long, without justification, to perform the necessary surgery. Count II alleged that Woodson failed to keep written medical records justifying the course of treatment of the patient, specifically with respect to ordering whole blood instead of packed units and with respect to the length of the surgical procedures. The probable cause panel considered the matter at its meeting on June 22, 1990. Counsel for the panel pointed out that the "extensive depositions" Woodson had indicated he wanted the DPR investigator to read before Woodson was interviewed were not in the packet of materials reviewed by the panel. 5/ But members of the panel indicated that they had reviewed the material that was in the packet and that they thought the information contained in it was adequate to make a probable cause determination. One of the doctors on the panel called it a "horrendous case." She felt that Woodson had "swamped out the patient" and had performed "inappropriate types of fluid therapy and blood therapy." The other member mentioned the "five-hour operating time . . . without any real explanation." The panel's attorney pointed out the part of the report of investigation that referenced the patient's refusal to consent to Dr. Woodson's proposed surgery and asked whether it constituted "any semblance of an explanation for a delay?" It is not clear from the transcript of the probable cause proceeding how the panel resolved the attorney's question, but the panel voted to find probable cause notwithstanding the question. 6/ There is information in the materials reviewed by Dr. Carson, and by the probable cause panel, which tends to explain some of the time it took for Dr. Woodson to perform surgery on the patient. Some of this partially exculpatory information was difficult to read and decipher in the records. Some of the partially exculpatory information was acknowledged by Dr. Carson and may also have been taken into account independently by the panel. Notwithstanding this partially exculpatory information in the record, the finding of probable cause was substantially justified.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME 0040343. On the morning of October 7, 198A, the Metro-Dade County Rescue Squad called the emergency room at Miami General Hospital and informed the staff that they were enroute to the hospital with a gunshot victim. Dr. Segurola, the emergency room physician, was informed of the victim's condition and immediately ordered a nurse to notify the operating room team and call a surgeon because he knew in advance that "this was going to be a serious surgical case." At approximately 7:42 a.m., the rescue squad arrived at Miami General Hospital with the victim, Samuel Kaplan. Kaplan was taken to the emergency room suffering from a gunshot wound to the abdomen inflicted by a .32 caliber bullet. When Kaplan arrived in the emergency room, his systolic blood pressure was approximately 60, he was wearing a MAST suit, he had an intravenous (IV) line going, and he was receiving oxygen. Although Kaplan was conscious and able to speak, his condition was unstable and very serious. Kaplan was initially treated by Dr. Segurola, the emergency room physician. Three nurses, a respiratory therapist and an x-ray technician were also present in the emergency room. Dr. Segurola conducted a brief physical examination of Kaplan. An entrance wound was found, but there was no exit. After the examination, a second IV line was started in the other arm and a third, central line was started in the subclavin vein. The IV lines were set at maximum or "wide open." The emergency room staff was attempting to rapidly increase Kaplan's blood volume and pressure. Kaplan's hemoglobin level was low (approximately 8 or 9), which is a sign that a patient is anemic due to loss of blood. At approximately 8:00 a.m., Respondent received a message from his telephone answering service to call Dr. Segurola at the hospital's emergency room. At approximately 8:02 a.m., the Respondent returied the telephone call and spoke with Dr. Segurola concerning the patient's condition. During the conversation, the Respondent advised Dr. Segurola to contact the operating room team and anesthesiologist to prepare for surgery. The Respondent arrived at the emergency room of Miami General Hospital in response to the call at approximately 8:12 a.m. Upon the Respondent's arrival at the emergency room, he was informed that Kaplan's blood pressure was 108/50, heart rate 106 and respiration 28. The Respondent spoke to Kaplan and Kaplan stated that he had been shot in the stomach. Respondent then proceeded to conduct a brief, but thorough, physical examination of the patient. When Respondent completed his examination, he was advised that Kaplan's blood pressure was approximately 124/50, heart rate remained at 106 and respiration remained at 28. At this point, the Respondent believed that Kaplan's condition was stabilized. Respondent advised Dr. Segurola that Kaplan should immediately be taken to the operating room for surgery. The Respondent was informed that the operating room was not quite ready and that the anesthesiologist had not arrived. While waiting for the operating room team, Respondent and Dr. Segurola reviewed x-rays of Kaplan. The emergency room nurse continued to take Kaplan's vital signs. Kaplan's blood pressure remained at 124/50. At approximately 8:20 a.m., while Respondent, Dr. Segurola and others in the emergency room were waiting for confirmation that the operating room was ready, a hospital admissions clerk walked in and informed the emergency room staff that Kaplan belonged to the Health Maintenance Organization ("HMO"). An HMO is a plan in which a patient makes pre-payment for services and is then provided medical services from a designated panel of participating physicians. The emergency room maintained two "on-call" lists, one for HMO surgeons and one for non-HMO surgeons. The Respondent was on the non-HMO list. Dr. Segurola and Respondent had a brief discussion wherein both men acknowledged that under existing hospital policy, the HMO surgeon should have been called. Thereafter, Dr. Segurola informed a nurse to telephone the on-call HMO surgeon. The HMO surgeon on call was Dr. Moises Jacobs. A secretary in the emergency room placed a call to Dr. Jacobs at approximately 8:25 a.m. Dr. Jacobs returned the phone call between 8:25 a.m. and 8:30 a.m. Dr. Jacobs spoke with Dr. Segurola. While Dr. Segurola was on the phone, Dr. Jose Selem, the anesthesiologist, arrived in the emergency room. Dr. Jacobs told Dr. Segurola to ask the Respondent to take the patient to surgery immediately and stated that he would arrive at the hospital in about 20- 30 minutes. When the Respondent was told of Dr. Jacobs' request he replied that the patient was stable and could wait for Dr. Jacobs. Dr. Selem, the anesthesiologist, also spoke with Dr. Jacobs on the telephone. Dr. Jacobs told Dr. Selem to advise Respondent that Respondent could take the patient to surgery. When Dr. Selem advised Respondent of what Dr. Jacobs has said, the Respondent replied that since Dr. Jacobs was coming to the hospital and Kaplan was an HMO patient, Respondent preferred to wait for Dr. Jacobs, the HMO surgeon. Dr. Selem then left the emergency room and went to the operating room to prepare the necessary instruments. At approximately 8:30 a.m., the Respondent advised Dr. Segurola that he was going to the hospital cafeteria for a cup of coffee and, if any changes occurred in the patient, he should be contacted. The cafeteria was located across a corridor approximately 20-25 feet from the emergency room. At the time, Kaplan was still alert and his vital signs were being constantly monitored by the nursing staff. Dr. Segurola remained in the emergency room. The operating room and all necessary personnel were ready for surgery at approximately 8:40 a.m. Sometime between 8:40 a.m. and 8:45 a.m., one of the nurses told Dr. Segurola that the Respondent's condition was deteriorating and that his blood pressure was dropping. At approximately 8:45 a.m., Kaplan's blood pressure had dropped to 80/50. Dr. Segurola told the nurse to give more blood to Kaplan (a blood transfusion had already been started). Dr. Segurola then went to the cafeteria to speak with Respondent. Dr. Segurola told Respondent that the patient's condition was deteriorating, a blood transfusion had been started, and he feared that Kaplan might die in the emergency room. The Respondent inquired as to how long it had been since Dr. Jacobs had been called and Dr. Segurola responded twenty (20) minutes. Respondent questioned whether it really had been 20 minutes. Both men looked at their watches and determined that it had been about 15 minutes since Dr. Jacobs had been called. Respondent told Dr. Segurola to call the anesthesiologist. Dr. Segurola went back to the emergency room, believing that Respondent was going to immediately follow him there. When Dr. Segurola arrived back at the emergency room, Kaplan's condition had not improved. Dr. Segurola waited about three (3) more minutes and went back to the cafeteria for the second time. Dr. Segurola again informed the Respondent about Kaplan's deteriorated condition and his fear that Kaplan was going to die in the emergency room. Respondent once more asked Dr. Segurola to call the anesthesiologist. Dr. Segurola told Respondent that the anesthesiologist was there and that "we need you there." Dr. Segurola then went back to the emergency room. The Respondent remained in the cafeteria. Shortly before 9:00 a.m., while Dr. Segurola was away from the emergency room, Dr. Lustgarten, a neurologist, had just finished his rounds and was leaving the hospital through the emergency room to the parking lot. Dr. Lustgarten looked in on Kaplan to determine if there was any neurological damage. Dr. Lustgarten examined Kaplan and concluded that there was no neurological damage and that, in his opinion, Kaplan's condition was stable with a systolic blood pressure of approximately 100. Dr. Lustgarten left the emergency room just as Dr. Jacobs arrived at approximately 9:00 a.m. Dr. Lustgarten told Dr. Jacobs that Kaplan had no neurological damage. Dr. Jacobs conducted a brief examination of Kaplan and determined that Kaplan needed to be taken to the operating room immediately for surgery. The anesthesiologist, Dr. Selem, had by then been summoned to the emergency room and assisted Dr. Jacobs in an unsuccessful attempt to intubate Kaplan prior to taking him to the operating room. Shortly after Dr. Jacobs arrived, the Respondent left the cafeteria and headed towards the emergency room. Before Respondent reached the entrance to the emergency room, he was informed by one of the nurses that Dr. Jacobs had arrived. The Respondent stood at the entrance to the emergency room for a brief period and watched as Dr. Jacobs and others attended to Kaplan. Respondent then left the building, went to his car and drove home. Meanwhile, Dr. Jacobs performed an emergency exploratory laparotomy and left thoracotomy on Kaplan. Between 9:00 am. and 9:15 a.m., after Kaplan was moved from the emergency room to the operating room, his blood pressure went from 90 down to 60, and he went into shock. There are three possible contributing factors for Kaplan's going into shock at this time: (1) moving him may have dislodged ,a blood clot which in all likelihood prevented an earlier complete "bleeding out"; (2) the blood clot may have been diluted by the IV fluid; and (3) the institution of anesthesia. During surgery it was discovered that the bullet had perforated the aorta, a major blood vessel. While still in surgery, Kaplan went into cardiac arrest and was pronounced dead at 10:25 a.m. on October 7, 1984. At the time that Respondent left the emergency room and went to the hospital cafeteria, Kaplan's vital signs were in a relatively stable condition. Kaplan's vital signs de-stabilized while Respondent was in the hospital cafeteria, and his systolic blood pressure dropped from approximately 120 to approximately 80. At all times prior to being taken to the operating room, Kaplan's vital signs were maintained with the assistance of a MAST suit. A MAST suit is an inflatable device used in the treatment of trauma patients which applies pressure to the body and assists in elevating blood pressure. When the MAST suit is removed, the patient's vital signs will deteriorate again. For this reason, many physicians consider vital signs obtained under such conditions to be false readings, and the MAST suit is usually not removed until the patient is in the operating room. Although the Respondent suspected that the bullet might have damaged the small bowels and caused some internal bleeding, the Respondent neglected to ask about the amount of fluids Kaplan had received. Kaplan had received over 4 to 5 liters of fluid prior to arriving at the hospital and received an additional 5 liters of fluid while waiting to be taken to surgery. Although this information would have been useful, it would not necessarily have indicated the extent of Kaplan's massive internal bleeding. The amount of fluids that Kaplan received prior to the Respondent leaving the emergency room was not necessarily a sign that Kaplan's condition was unstable. In the treatment of trauma cases, time is of the essence. A trauma patient with a gunshot-wound to the abdomen should be taken to surgery as soon as possible. In some cases, it may be advantageous to delay surgery in order to stabilize the patient's vital signs or to increase blood volume. Generally, if surgery is performed within the first hour after the injury is sustained (referred to as "the golden hour"), the better the chances of the patient surviving. The golden hour does not apply to injuries of the heart and major blood vessels. In those cases, the patients will "bleed out" in a time much shorter than one hour. Nevertheless, even where the golden hour has passed, the patient should be taken to surgery at the first available opportunity and without delay. While in the emergency room at Miami General Hospital, Kaplan's condition ranged from "serious" to "critical." From the time that Kaplan was initially admitted to Miami General Hospital his condition was such that he required immediate surgical intervention. A reasonably prudent physician in the Respondent's position would have performed surgery at the first available opportunity and would not have waited for the arrival of another surgeon. Although pursuant to hospital and HMO rules, the HMO surgeon should have been called first, where an emergency situation exists the first surgeon available is expected to take the patient to surgery, and that physician will be provided payment by the HMO. The Respondent was aware of the hospital's and HMO's policies regarding HMO and non-HMO patients based on prior experience. The Respondent has never previously been disciplined or investigated by Petitioner or any medical board in any jurisdiction. Respondent maintains an excellent reputation for competence and compassion among his fellow physicians. Respondent is well liked by his patients and has provided medical services in the past to patients with no medical insurance.
The Issue The issues in this case are whether Petitioner committed the alleged violations and, if so, should her paramedic license be revoked.
Findings Of Fact At all times relevant to this proceeding, Petitioner was employed as a paramedic by the City of Gulfport and worked as a paramedic for the Gulfport Fire Department. In this capacity, Petitioner worked under the auspices of the medical director for Pinellas County Emergency Medical Services (Pinellas County EMS). Petitioner was a paramedic from 1997 until March 2003. Prior to that time, from 1991 until 1997, she worked as an emergency medical technician (EMT). On February 20, 2003, Petitioner, along with Lt. Brian Campbell and Firefighter/EMT Dennis Jackson, were called to respond to the scene of a shooting. Petitioner was the only paramedic on the scene and, therefore, the only person on the scene certified by the Office of the Medical Director (OMD) to provide advanced cardiac life-saving treatment. Petitioner received the call at 12:22 a.m., and arrived at the patient's side at 12:30 a.m. When Petitioner arrived at the patient's side, she observed a white male, approximately 20 years old, lying on his back in the street. His skin color was ashen, his mouth and eyes were wide open, and his pupils were fixed and dilated. Upon physical examination, Petitioner could not detect a pulse and observed two small holes in the patient's trunk. At that point, Petitioner did not know whether the two holes represented two separate entry wounds or one entry and one exit wound. Petitioner observed a trail of blood, at least a block long, leading to the patient, but there was not a lot of blood around the patient. Petitioner attached an electrocardiogram (ECG) monitor to the patient to monitor the electrical activity of his heart. When Petitioner first turned on the ECG monitor, she observed four ticks of electrical activity within a 14-second span. Petitioner testified that based on her observation and physical examination of the patient, she believed that the electrical activity exhibited on the ECG monitor was not pulseless electrical activity (PEA), but rather "artifact" caused by her manipulation of the patient. Petitioner further testified that, thereupon, she stopped touching the patient and observed that the ECG read-out went mostly flat, showing only occasional ticks. Petitioner testified that these occasional ticks, as observed on the ECG monitor, indicated to her that the patient was in asystole. Shortly thereafter, Petitioner declared the patient dead. After Petitioner declared the patient dead, she prepared a Patient Care Report (Report or Patient Care Report) while still on the scene. In the Report, Petitioner wrote that she found a white male laying on the ground with an apparent small entrance wound in his upper chest and a possible small exit wound near his back rib. She further noted that the patient's temperature was normal, that his eyes were fixed and dilated, that he was not breathing (apneic), and that he had no discernible pulse. Petitioner also noted in the Report that the patient was in asystole within one minute after the ECG pads were attached, but she failed to note the initial four ticks she observed, which may have represented PEA. In the Report, Petitioner noted that at 12:30 p.m., the patient was hooked up to the monitor; at 12:31 p.m., he was asystolic; and at 12:32, she confirmed the patient dead. Upon completing the Report at the fire station, Petitioner attached to the Report the last of several ECG strips she had intermittently printed while at the patient's side. The ECG printout that Petitioner attached to the Report depicted a classic "flat line" indicative of asystole or no electrical activity. Petitioner discarded each of the ECG strips that contained some indicia of electrical activity. A Patient Care Report is a legal document that Petitioner is required to complete by law. By signing the Report, Petitioner acknowledged that the information contained in the Report was true and accurate. Later, on the morning of February 20, 2003, when the employees' shifts at the fire station were changing, Petitioner and Toni Lanahan (Lanahan), a firefighter/paramedic coming on duty, talked about the shooting incident. That such conversation occurred is undisputed. However, there was conflicting testimony as to what Petitioner told Lanahan during that conversation. According to Lanahan, Petitioner told her that when she (Petitioner) arrived at the scene, the patient looked dead but she hooked him up to the ECG monitor, that he had a rhythm but she did not work him, and that she turned off the monitor. Petitioner testified that she did not tell Lanahan that the patient had a heart rhythm, but only that the patient "was dead" and that she did not work him.1 About two hours after her conversation with Petitioner, Lanahan retrieved stored ECG code summary data of the patient described above.2 When Lanahan reviewed the ECG code summary, she saw that the patient had a presenting ECG rhythm showing approximately 40 beats per minute of PEA with gradually slowing PEA for the entire seven minutes depicted in intervals on the ECG summary. Based on her review of the ECG record of the gunshot wound patient, Lanahan believed that in this situation, the OMD protocols mandated that immediate resuscitative treatment be administered. Lanahan then reported these concerns to her emergency medical services (EMS) Coordinator, Lt. Marenkovic, who in turn, reported the incident to Gulfport Fire Chief Brian Brooks. Chief Brooks notified the OMD of the possible violations of its protocols by Petitioner. The OMD initiated an investigation, which included reviewing the written statements of Petitioner, Lt. Campbell, and EMT Jackson; the ECG code summary for the incident; Petitioner's Report; and the transcripts of the sworn interviews of Petitioner, Lt. Campbell, and EMT Jackson taken by the Gulfport Fire Department. After reviewing the above-referenced documents, Dr. Laurie Romig (Dr. Romig), the medical director of the Pinellas County EMS, decided to revoke Petitioner's certification. This decision was based on Dr. Romig's determination of the following: (1) Petitioner violated numerous protocols in the Medical Operations Manual, both administrative and direct patient care protocols; and (2) Petitioner attempted to make the situation appear differently from what it turned out to be, and that, apparently, she did that on purpose. Specifically, Dr. Romig charged Petitioner with violating Pinellas County Emergency Medical Services Protocol 2.3, Sections 5 and 6, and Protocol 10.8 and the following Pinellas County Emergency Medical Services Rules and Regulations: Sections XIII-3-b, related to falsification or inappropriate alteration of emergency medical services records; XIII-3-e, related to theft or dishonesty in performance of duty; XIII-3-i, related to demonstrated ability, failure or refusal to adhere to established protocols and standards as established by the authority; and XIII-3-k, related to just cause, including unbecoming behavior or unprofessional conduct reflecting a poor system image. The Pinellas County emergency protocols are written requirements that paramedics must follow when administering emergency treatment to patients. The protocols are published in a document entitled Pinellas County Medical Operations Manual, which is approved by the medical director and distributed to all Pinellas County EMS paramedics. Petitioner received a copy of the most recent medical operations manual in January 2003. EMS Protocol 5.10 prescribes treatment for patients presenting with PEA. As defined in Protocol 5.10, PEA is "any semi-organized electrical activity that can be seen on a monitor screen although the patient lacks a palpable, radial, brachial, or carotid pulse." When PEA is present in a patient, Protocol 5.10 mandates that immediate life-saving treatment be implemented. The patient initially had electrical activity. Nonetheless, Petitioner did not follow Protocol 5.10. According to Petitioner's testimony, she believed that the patient was asystolic and, thus, the protocol related to PEA was inapplicable to the shooting victim. Petitioner's belief was not supported by the ECG report. Protocol 5.4 delineates the procedures to be followed in the treatment of asystole. In the book utilized for Pinellas County EMS paramedic training, "asystole" is defined as a cardiac arrest rhythm associated with no discernible electrical activity on the ECG ("flat line"). Significantly, Protocol 5.4 and Protocol 5.10, discussed in paragraph 21, require that resuscitative efforts be started immediately and that such resuscitative efforts and treatment be terminated by the paramedic only "after 10 minutes of continuous asystolic arrest with appropriate interventions." Even if Petitioner's assertion that the patient was asystolic is accepted, she failed to provide the required resuscitative efforts and/or treatments prescribed by Protocol 5.4. Petitioner did not prematurely terminate resuscitative efforts, she never implemented them. Protocol 5.15 prescribes the treatment and transport considerations for "patients with cardiac arrest secondary to trauma, regardless of presenting cardiac rhythm." The protocol provides that such patients should be transported to the closest hospital emergency facility. Contrary to the requirements in Protocol 5.15, the patient was not transported to a hospital emergency facility. Protocol 2.3 requires paramedics, when possible, to contact and consult with On-line Medical Control (OLMC) in any case in "which a deviation from protocol has been made intentional or otherwise." The OLMC is a system which allows paramedics to contact the OMD and consult with a medical doctor regarding a situation in the field. Petitioner clearly deviated from Protocols 5.4 and/or 5.10, by failing to initiate and implement the resuscitation procedures required by both protocols, and Protocol 5.15, by failing to have the patient transported to a hospital emergency facility, yet she never contacted the OLMC as mandated by Protocol 2.3. Petitioner acknowledged that she did not follow either Protocols 5.4 or 5.10, both of which required immediate resuscitative efforts. Petitioner testified that instead, she followed Protocol 10.8, which provides an exception to the protocols that require initiation of resuscitative efforts. Petitioner contends that Protocol 10.8 provided the basis for her withholding resuscitation from the patient. Protocol 10.8 requires that cardiopulmonary cerebral resuscitation (CPCR) be initiated "in all cases when the patient is found in cardiopulmonary arrest unless one of the exclusion or special situation criteria applies." The exclusion criteria provides that CPCR may be withheld if the patient has, "in conjunction with apnea, pulselessness and asystole on the ECG," an "obviously unsurvivable trauma." If CPCR is withheld, Protocol 10.8 requires that exclusion criteria be fully documented and described. Protocol 10.8 does not define "obviously unsurvivable trauma." However, according to Dr. Romig, the term connotes catastrophic injuries observable by an untrained eye. Dr. Romig, an expert in emergency medicine and traumatic cardiac arrest, testified that nothing about this patient, based on her review of the records and documents, indicated that the patient had suffered an "obviously unsurvivable trauma." Also, Lt. Campbell, an EMT certified for 12 years, who was at the scene, testified that although the patient "looked dead," he could not say that the patient suffered an "obviously unsurvivable trauma" because the patient showed only a small bullet wound to the chest and a "little bit" of blood on his (the patient's) clothing. The weight of the evidence showed that the patient had not suffered an obviously unsurvivable trauma. However, even accepting Petitioner's testimony that she believed that the patient had suffered an obviously unsurvivable trauma, she failed to comply with Protocol 10.8. If Petitioner, in fact, relied on Protocol 10.8 in deciding to not administer CPCR, she was required to document and describe the exclusionary criteria, which was the basis of her decision to withhold CPCR. Petitioner failed to provide any such documentation and, thus, violated Protocol 10.8. In addition to violating the above-noted protocols, Petitioner was dishonest in the performance of her duties as a paramedic and also falsified EMS records. The ECG summary showed that despite the patient's having electrical cardiac activity of at least 40 beats, Petitioner turned off the ECG machine and pronounced the patient dead. After pronouncing the patient dead, she then turned the ECG machine on again, and intermittently printed activity on four separate occasions until reaching a reading showing no electrical cardiac activity. By engaging in this conduct, Petitioner was dishonest in the performance of her duties. Paramedics are required to truthfully and accurately complete the Patient Care Records of patients for whom they provide emergency medical services. Here, the ECG summary showed PEA of over 40 beats per minute initially and diminished electrical activity for over eight minutes total, six minutes of which were after Petitioner had already pronounced the patient dead. Petitioner initially saw a rhythm of four beats or ticks in a 14-second period, which was a beat rate of 40 and showed on the ECG strip as 42. Although the initial reading of approximately 40 beats and PEA was clearly visible during the entire nearly eight minutes depicted on the six-second intervals shown on the ECG code summary, this was omitted from Petitioner's Report. Petitioner omitted from the patient's Record the ECG readings that showed electrical activity. Instead, Petitioner reported that at the time she declared the patient dead, he was in "asystole" when, in fact, the ECG summary showed PEA. Moreover, Petitioner documented the Report with an asystole ECG strip reflecting a "flat line" reading printed some six or seven minutes after the reported time of death.3 Petitioner admitted during her sworn statement and at this proceeding that she deliberately did not attach to the Report any part of the ECG strip that reflected the interim electrical activity. Petitioner testified that the ECG strips showing interim electrical activity could raise doubts about the propriety of the treatment she gave this patient in a future criminal trial or other investigation.4 The medical director is required by law to ensure that Pinellas County EMS personnel provide quality care and are not a danger to the safety of the county's citizens, residents, or visitors. Here, Petitioner violated the protocols related to the standard of care for patients and completion of reports and rules and regulations related to dishonesty in the performance of duties and to falsification of records. These infractions are a possible threat to public health and safety of residents of and visitors to Pinellas County. As such, they constitute just cause to conditionally revoke Petitioner's Pinellas County Paramedic Certificate. The conditional revocation allows Petitioner to reapply for a paramedic certificate in two years. Such recertification may include a one-year probationary period, with monitoring by the medical director to include a review of all trauma-run reports. Petitioner's Pinellas County Emergency Medical Technician Certification was not revoked and she retains that certification.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent enter a final order finding Petitioner guilty of the violations alleged in the Notice of Revocation dated March 28, 2003, and upholding revocation of Petitioner's Pinellas County Paramedic Certificate. DONE AND ENTERED this 1st day of October, 2003, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 1st day of October, 2003.
Findings Of Fact At all times relevant hereto Daniel Francis Sanchez was licensed as a physician by the Florida Board of Medical Examiners having been issued license number ME0038795. At all times relevant hereto Respondent was Regional Medical Director of IMC which operated HMO offices in Hillsborough and Pinellas Counties. On October 17, 1985, Alexander Stroganow, an 84 year old Russian immigrant and former cossack, who spoke and understood only what English he wanted to, suffered a fall and was taken to the emergency room at Metropolitan General Hospital. He was checked and released without being admitted for inpatient treatment. Later that evening his landlady thought Stroganow needed medical attention and again called the Emergency Medical Service. The ambulance with EMS personnel arrived and concluded Stroganow was no worse than earlier when taken to the emergency room and they refused to transport him again to the hospital. The landlady then called the HRS hotline to report abuse of the elderly. The following morning, October 18, 1985, an HRS case worker was dispatched to the place where Stroganow lived. She was let in by the landlady and found an 84 year old man who was incontinent, incoherent, apparently paralyzed from the waist down, with whom she could not carry on a conversation to find out what condition he was in. She called for a Cares Unit to come and evaluate the client. An HRS Cares Unit is a two person team consisting of a social worker and nurse whose primary function is to screen clients for admission to nursing homes and adult congregate living facilities (ACLF). The nurse on the team carries no medical equipment such as a stethoscope, blood pressure cuff, or thermometer, but makes her determination on visual examination only. Upon arrival of the Cares Unit both members felt Stroganow needed to be placed where he could be attended. A review of his personal effects produced by his landlady showed his income to be over the maximum for which he could qualify for medicaid placement in a nursing home; that he was a member of IMC's Gold- Plus HMO; his social security card; and several medications, some of which had been prescribed by Dr. Dayton, a physician employed by IMC at the South Pasadena Clinic. The Cares team ruled out ACLF placement for Stroganow at the time because he was not ambulatory but felt he needed to be placed where he could be attended to and not left alone over the coming weekend. To accomplish this, they proceeded to the South Pasadena HMO clinic of IMC to lay the problem on Dr. Dayton, the Assistant Medical Director for IMC in charge of the South Pasadena Clinic. Stroganow had been a client of the South Pasadena HMO for some time and was well known at the clinic and by EMS personnel. There were two and sometimes three doctors who treated patients at this clinic and, unless the patient requested a specific doctor, he was treated by the first doctor available. Stroganow had not specifically requested he be treated by Dr. Dayton. When the Cares team met with Dr. Dayton they advised him that Stroganow had been taken to Metropolitan General Hospital Emergency Room the night before but did not advise Dayton that the EMS team had refused to transport Stroganow to the hospital emergency room a second time the previous evening. Dayton telephoned the emergency room at Metropolitan General to ascertain the medical condition of Stroganow when brought in the evening before. With the information provided by the Cares team and the hospital, Dayton concluded that Stroganow should be given a medical evaluation and the quickest way for that to occur was to call the EMS and have Stroganow taken to an emergency room for evaluation. When the Cares team arrived, Dayton was treating patients at the clinic. A doctor's office, or clinic, is not a desirable place to have an incontinent, incoherent, non- ambulatory patient brought to wait with other patients until a doctor is free to see him. Nor is the clinic equipped to do certain procedures frequently needed in diagnosing the illness and determining treatment needed for an acutely ill patient. EMS squads usually arrive within minutes of a call to 911 for emergency medical assistance and it was necessary for someone to be with Stroganow with the EMS squad arrived. Accordingly, Dayton suggested that the Cares team return to Stroganow and call 911 for assistance in obtaining a medical evaluation of Stroganow. If called from the HMO office, the EMS squad would have arrived long before the Cares team could have gotten back to Stroganow. Dr. Dayton did not have admitting privileges at any hospital in Pinellas County at this time. Upon leaving the South Pasadena HMO clinic, the Cares team returned to Stroganow. Enroute, they stopped to call a supervisor at HRS to report that the HMO had not solved their problem. The supervisor then called the Administrator at IMC to tell them that one of their Gold-Plus patients had an emergency situation. Respondent, Dr. Sanchez, called and advised that Dr. Dayton would take care of the problem. Later, around 2:00 p.m. when no ambulance had arrived, the Cares team called 911 from a telephone a block away from Stroganow's residence and arrived back just before the emergency squad. The EMS squad again refused to transport Stroganow to an emergency room and this information was passed back to Sanchez who directed that Stroganow be taken to Lake Seminole Hospital. This was the first time either Dayton or Sanchez was aware that the EMS squad had refused to transport Stroganow to an emergency room. Although Sanchez did not have admitting privileges at Lake Seminole Hospital, IMC had a contractual agreement with Lake Seminole which provided that certain staff doctors at Lake Seminole would admit patients referred to Lake Seminole by IMC. Pursuant to this contractual arrangement, Stroganow was admitted to Lake Seminole Hospital where he was treated for his injuries and evaluated for his future medical needs.
The Issue Whether Respondent violated Subsections 458.331(1)(m), (q), and (t), Florida Statutes (2003), and, if so, what discipline should be imposed.
Findings Of Fact The Department is charged with regulating the practice of licensed physicians pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes (2003). Dr. Dangl, whose address of record is 3900 Clark Road, Suite F-1, Sarasota, Florida 34233, was issued Florida license number ME 71286. On or before September 25, 2003, Dr. Dangl's office was approved to perform Level II Office surgical procedures by the Department. In a Level II Office surgery, "the patient is placed in a state which allows the patient to tolerate unpleasant procedures while maintaining adequate cardiorespiratory function and the ability to respond purposefully to verbal command and/or tactile stimulation." Fla. Admin. Code R. 648-9.009(4). Patient J.R., a 38-year-old female, presented to Dr. Dangl on September 25, 2003, for the removal of existing breast implants and the placement of larger saline implants. The surgery was scheduled to take place in Dr. Dangl's office. The surgical team consisted of Dr. Dangl; Amanda Fortner, R.N.; and Bruce Crow. Ms. Fortner assisted Dr. Dangl in administering anesthetic agents and other controlled substances, and monitored J.R. during the procedure. Her duties included documenting J.R.'s vital signs and the types and quantities of medications that were administered. A cardiac respiratory monitor, a pulse oximeter, and a blood pressure monitor were devices used to monitor J.R. during the surgery. A cardiac respiratory monitor records the heart rate, respirations, and the sinus rhythm of the heart. The oxygen saturation in the blood is measured by the pulse oximeter, which is placed on one of the patient's fingers. Blood pressure is monitored by the blood pressure machine. Bruce Crow was the surgical technician. During the surgical procedure, he made sure supplies and surgical instruments were ready, maintained the sterile field, and assisted Dr. Dangl with the procedure. At approximately 9:15 a.m. on September 25, 2003, Dr. Dangl started an IV in J.R.'s left hand and administered the following medications: one gram of Rocephin, 20 milligrams of Reglan, 50 milligrams of Demerol, ten milligrams of Valium, 25 milligrams of Ketamine and Versed. Dr. Dangl gave the initial medications, and Ms. Fortner administered additional drugs pursuant to Dr. Dangl's orders. J.R. was given an additional 200 milligrams of Demerol. The last dose of Demerol was administered by Ms. Fortner at 9:50 a.m. J.R. was a small person, and, for her weight and size, it took an unusual amount of Demerol to get J.R. sedated. Versed and Valium are sedative hypnotics, which sedate patients and cause them to become sleepy. Demerol is an analgesic, a pain medication. These medications can decrease respiration. Ketamine is a dissociate anesthetic, which does not cause respiratory depression. J.R. was also given a Propofol drip IV to help keep J.R. asleep. Propofol is a general anesthetic which depresses brain cells. The Propofol was mixed with a saline solution at a rate of one 55 cc vial per 100 cc's of saline. Ms. Fortner prepared the solution, which was initially administered by Dr. Dangl until he got it to the rate that he wanted. Once the surgery started, he would tell Ms. Fortner to speed-up or slow- down the drip as necessary. Three bottles of Propofol were used during the surgical procedure. J.R. was also given two liters of oxygen during the procedure. An oral airway was inserted into J.R.'s mouth during the early stages of the procedure. An oral airway is a long device that is inserted behind the tongue and goes deep into the patient's throat. In order to tolerate an oral airway, the patient would have to be in a deep level of sedation. J.R. was awake when the medications were started. She continued to talk through at least half of the time the medications were being administered. At one point during the surgery, J.R. "moaned a little bit, but then went right back to sleep." During the surgical procedure, Dr. Dangl sat J.R. up approximately three times to check the symmetry of the implants. J.R. continued to sleep through these checks. During the last time that J.R. was brought to a sitting position at approximately 11:55 a.m., the pulse oximeter alarmed. Thinking that the device may have fallen off J.R.'s finger, Ms. Fortner checked the device and also checked to make sure that the oximeter was not on the arm on which the blood pressure machine was placed. The pulse oximeter was on the correct finger. Ms. Fortner advised Dr. Dangl that something was wrong. She turned up the oxygen and placed an Ambu bag1 over the oral airway which had been placed in J.R.'s mouth at the beginning of the case. Ms. Fortner started Ambu bagging J.R. At Dr. Dangl's direction, Ms. Fortner turned off the Propofol drip. However, J.R.'s pulse oximeter reading did not improve. Not wanting to break the sterile field, Dr. Dangl yelled at Ms. Fortner, "Don't make me come back there and help your ass." When J.R. still did not improve, Dr. Dangl broke the sterile field, pushed Ms. Fortner aside, and began to Ambu bag J.R. Dr. Dangl checked J.R. for a pulse, but was unable to find one. Ms. Fortner checked for a pulse and thought that she may have found a faint pulse. Dr. Dangl, hearing the receptionist in the hallway, called to her to get Michelle Purdy, another employee of Dr. Dangl. The receptionist went to get Ms. Purdy and came back saying that Ms. Purdy was on the telephone. Dr. Dangl told the receptionist to get Ms. Purdy. Ms. Purdy, who is not a nurse, came into the operating area and tried to find a pulse for J.R. Unfortunately, Ms. Purdy tried to find a pulse using her thumbs. After being corrected by the surgical team, Ms. Purdy attempted to locate a pulse in the brachial, then the femoral, and then the pedal pulses, but she was unable to find a pulse. After being unable to locate a pulse, Dr. Dangl instructed one of his staff to call for emergency medical services (EMS). While Dr. Dangl and his employees were searching for a pulse, the surgical technician asked for leave to begin chest compressions. Mr. Crow told Dr. Dangl that the heart rate monitor was flat lining, meaning that it showed no basic heart rhythm for J.R. J.R.'s skin was gray and her fingers were turning blue. Dr. Dangl told Mr. Crow to wait. Dr. Dangl instructed Ms. Fortner to give J.R. three milligrams of Atropine two times. Ms. Fortner complied with his orders, but J.R. still had not started to breathe again. Mr. Crow continued to request Dr. Dangl to allow him to start chest compressions. After the administration of the Atropine failed to revive J.R., Dr. Dangl allowed Mr. Crow to begin chest compressions. From a minimum of two minutes to a maximum six minutes2 elapsed between the time Mr. Crow first asked to do chest compressions and when he began to do chest compressions. While chest compressions were being administered, Dr. Dangl ordered Ms. Fortner to administer Epinephrine to J.R. While Dr. Dangl continued to Ambu bag J.R., Mr. Crow administered three cycles of chest compressions. A cycle is 15 chest compressions to two Ambu breaths. J.R.'s heart rate returned and J.R. developed tachycardia, which means a high heart rate. About the time that J.R. revived and became stable, the paramedics arrived. J.R. was breathing, had a heart rate, and had a pulse oximeter reading of approximately 98. Neither the paramedics nor Dr. Dangl or any of his staff checked J.R.'s pupils. When the paramedics arrived, the surgery was not completed. The paramedics informed Dr. Dangl that another EMS team was on the way. Dr. Dangl and the paramedics agreed that Dr. Dangl could finish closing and suturing the wound, while waiting for the other EMS team to come and transport J.R. to the hospital. The paramedics stayed for a short time in the operating area monitoring J.R.'s vital signs and then left to make copies of J.R.'s chart, leaving Ms. Fortner to continue the monitoring of the vital signs. While Dr. Dangl was completing the procedure, J.R.'s vital signs were within normal range. Ms. Fortner periodically checked J.R.'s breathing by placing her hand over J.R.'s mouth. After Dr. Dangl completed suturing the wound, the second team of paramedics came into the operating area to transport J.R. The paramedics examined J.R.'s eyes, which were fixed and dilated. The paramedics immediately intubated J.R. and took her to the hospital. While at the hospital, Dr. Dangl admitted to J.R.'s fiancée that he had given J.R. "a lot of medication for her body size and weight," but that he thought J.R. was metabolizing the anesthetic very quickly. J.R. never regained consciousness after she was transported to the hospital. She died several months later from hypoxic encephalopathy, which means low oxygen brain damage. On September 26, 2003, Dr. Dangl dictated a report of operation. His documentation of J.R.'s "cardiorespiratory event" is as follows: Immediately prior to closure, the patient experienced a cardiorespiratory event that required CPR and resuscitative efforts. The EMS was activated and assumed care of the patient upon arrival. At this time the patient had responded to the resuscitative effort, vital signs were stable and permission was given by EMS to complete closure of the incisions prior to transport. The incisions were closed in a layered fashion with 3-0 PDS II and 5-0 nylon. A sterile dressing was placed over the incision sites. The patient was entubated [sic] by EMS prior to transport and left the O.R. via ambulance for Doctor's Hospital Emergency Room. Dr. Dangl signed a document entitled, "Operating Room Record." The record contained a section in which the medications that were administered should have been listed along with the time administered, the dosage, and the method of administration. That section of the record contained the following, "see anesthesia record," in lieu of listing the medications. The anesthesia record which was prepared by Ms. Fortner did not list all the medications that were administered to J.R. such as the Atropine and Epinephrine. She did not list the amount of Lidocaine or Propofol that was administered. It should have been obvious to Dr. Dangl when he reviewed the anesthesia report, that it was not correct. When Dr. Dangl prepared the Report of Operation and signed the Operating Room Record, he should have included the medications which he ordered and which were not included in the anesthesia report. Both Dr. Dangl and Ms. Fortner were certified in Advanced Cardiac Life Support at the time of the surgery. Ms. Fortner is not an anesthesiologist, a certified registered nurse anesthetist, or a physician assistant. Based on the testimony of Ms. Fortner that three 50 cc bottles of Propofol were used during the surgery, Dr. Joan Christie calculated that the dosage of Propofol that was administered was between 160 and 170 micrograms per kilo per minute. In a normal patient, who has received no other drugs, 100 micrograms per kilo per minute would be a lot of medication. J.R. received between 160 and 170 micrograms per kilo per minute on top of the other drugs that had been administered to her at the beginning of the procedure. The Propofol was administered in excessive amounts. Based on the evidence presented, it is clear that J.R. went from a Level II to a Level III office surgery during the surgical procedure. She tolerated an oral airway, which she could not do under a Level II or Level I. She was not responding purposefully to verbal commands or tactile stimulation. When J.R. was sat up to check the symmetry of her implants, she did not wake up or otherwise respond. Although she did moan at one time during the surgical procedure, that did not mean that she was either at Level I or Level II. Dr. Dangl has had no prior disciplinary actions taken against him by the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Dangl violated Subsections 458.331(1)(m), (q), and (t), Florida Statutes (2003), and revoking his license to practice medicine. DONE AND ENTERED this 23rd day of February, 2005, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 23rd day of February, 2005.
