Findings Of Fact Respondent is Tariq Abdullah, a licensed physician at all times pertinent to these proceedings, holding medical license number ME 0021526. Respondent's last known address is Route 2, Box 124, Laurel Hill, FL 32567-9511. Although he is not board certified as a specialist in the areas of obstetrics or gynecology, Respondent was employed by the Milton Memorial Birthing Center (Center) near Laurel Hill, Florida, in the multiple capacity of medical director, co- administrator and physician at all times pertinent to this proceeding. Respondent has a wealth of practical experience in the delivery of babies gained through working with his mother, a midwife for many years who delivered babies over a large expanse of northwest Florida and south Alabama. The patient was 18 years of age and pregnant when she came to the Center for a prenatal care visit on January 28, 1989. From that visit until April 29, 1989, Respondent provided medical care and treatment to the patient. Either at the initial visit or shortly thereafter, the patient signed a "CONSENT TO DELIVER IN A BIRTH CENTER" form at the Center. According to representations set forth on that form, the patient acknowledged her understanding that a physician or graduate midwife duly licensed to practice in the State of Florida would attend her during labor and delivery. In the event that she or her child faced medical complications during labor or after birth, the form indicated the patient's consent to transfer of either the infant or herself to the hospital for further care. The form was explained to the patient by a midwife at the Center. The midwife also prepared the patient for visits with the doctor by taking the patient's blood pressure, weight and urine samples during prenatal visits. On April 29, 1989, at approximately 1:00 a.m., the patient entered the Center in labor. She entered the second stage of labor at approximately 12:15 p.m. that same day. The patient did not progress adequately during the second stage and, over four hours later, at 4:25 p.m., had not delivered. As a result, she was transported to the hospital in Andalusia, Alabama. The patient was transferred to the hospital in Alabama, although personnel at that facility had previously notified personnel at the Center that a lack of necessary personnel and equipment would prevent the hospital from serving as the Center's referral back-up facility for obstetrical patients in future emergency situations. When contacted by Respondent via telephone at approximately 4:00 p.m. on April 29, 1989, personnel at the hospital in Andalusia, Alabama, referred him to the hospital's chief of obstetrics, Dr. Albert St. John, M.D. Dr. St. John reviewed the patient's case with Respondent in a subsequent telephone conversation. During the course of that conversation, St. John asked pertinent questions about the patient and the extent of the baby's descent in the pelvis. Respondent put a midwife on the telephone to provide the information, then took the telephone back and concluded the discussion following St. John's statement that the hospital would not accept the transport of the patient in view of the hospital's lack of pediatric facilities and the high risks that would be associated with providing the patient and her child with care. In accordance with existing medical standards, the patient should have been considered to be a patient at "high risk" by Respondent since the patient was a teenager and had failed to deliver by the due date calculated from her last menstrual period (known as "post dates"). Further, Respondent should have recognized that the patient was definitely a high risk when she failed to deliver the fetus vaginally within the two hours following her entry into the second stage of labor at 12:15 p.m. on April 29, 1989. Respondent should have moved immediately to transfer the patient to an appropriate hospital facility upon conclusion of the two hour period following her entry into the second stage of labor. Respondent's failure to transfer the patient by that time, approximately 2:15 p.m. on April 29, 1989, constituted a deviation from acceptable standards of medical care. Respondent's deviation from acceptable standards of medical care was exacerbated by the later transfer of the patient to a hospital without a pediatrician. In the course of transfer to the hospital, the patient was accompanied by Respondent's sister who is a midwife at the Center. At that time, she was unlicensed. Subsequently, the midwife has received her license. Respondent never represented to the patient that the midwife was licensed. Although the midwife was unlicensed at the time of the patient's transfer, she did hold a Bachelor of Science degree in Biology and was licensed as an emergency medical technician. Also, she had completed formal training at the North Florida School of Midwifery in Gainesville, Florida. The patient finally arrived at the hospital in Andalusia, Alabama, at 4:50 p.m. on April 29, 1989. Physical examination of the patient following her arrival revealed fetal distress. Further, the patient had a thick labial edema. Following birth through a caesarian section, the baby required resuscitation and exhibited low apgar scores. The infant was later thought to be experiencing seizures and was eventually transported to another hospital with proper facilities to treat this emergency. Respondent failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances in that he permitted the second stage of labor to continue for approximately four hours before sending a "post dates" teenage patient with her first pregnancy to the hospital when the normal standard for other than hospitalized delivery is to wait no longer than two hours. Through the retention of the patient at the Center after 2:15 p.m. on April 29, 1989, Respondent chose to accept the professional responsibility for provision of medical services to a high risk patient in a facility traditionally providing services only to low risk patients. Respondent took this course of action although he does not perform caesarian sections and had not held himself out to the patient as capable of performing a difficult delivery.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered placing Respondent's license to practice medicine on probation for a period of two years upon terms and conditions to be set by the Board of Medicine and requiring payment of an administrative fine in the amount of $2,000. DONE AND ENTERED this 8th day of January, 1992, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1992. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-4.Adopted, though not verbatim. 5.Rejected as regards race of the patient, unnecessary. 6.-7.Adopted in substance. 8.Rejected, subordinate to Hearing Officer's findings. Specifically, the form referenced in this proposed finding does not speak to any representation by Respondent that a physician or midwife will accompany the patient to a hospital in the event of a transfer. Basically the form sets forth the patient's understanding that she will be treated by a physician or graduate midwife licensed to practice in the State of Florida. 9.-11. Rejected, unnecessary. 10.-18. Adopted in substance. 19. Rejected, subordinate to Hearing Officer's findings. 20.-21. Adopted in substance. 22. Not supported by weight of the evidence. 23.-25.Adopted in substance. Rejected, not supported by weight of the evidence. Adopted in part, rejected as to failure to send medical records to the hospital. Rejected, unsupported by the evidence. Rejected, relevance. Respondent's Proposed Findings. 1.-8. Adopted in substance. 9. Rejected, unnecessary. 10.-13. Adopted. Rejected, subordinate to Hearing Officer's finding. Adopted by reference. 16.-19. Adopted in substance, though not verbatim. Whether labor was progressing slowly or not, the evidence clearly and convincingly establishes that Respondent should have transferred the patient to a hospital at 2:15 p.m. on April 29, 1989. 20.-21. Accepted in substance. 22.Rejected, not supported by weight of the evidence which establishes that Respondent knew or should have known that the patient's failure to deliver after two hours in the second stage made her a high risk patient. 23.-25. Rejected as unnecessary. 26. Adopted in substance. 27.-28. Rejected, not supported by weight of the evidence. 29.-32. Rejected, relevance. 33.-34. Adopted in substance. 35.-36. Adopted in substance. 37. Rejected, subordinate to Hearing Officer's findings. 38.-40. Rejected, not supported by weight of the evidence. Rejected, relevance. Rejected, subordinate to Hearing Officer's findings on this point. COPIES FURNISHED: Bruce D. Lamb, Esq. Department of Professional Regulation 730 S. Sterling Ave, Suite 201 Tampa, FL 33609 Thomas G. Sherman, Esq. 218 Almeria Ave. Coral Gables, FL 33134 General Counsel Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0750 Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation The Northwood Centre 1940 N. Monroe St. Tallahassee, FL 32399-0750
The Issue Whether the Petitioner's application for renewal of her license to operate a child care facility should be approved.
Findings Of Fact On or about March 28, 2003, the Petitioner's son, Joshua Science, age 29, was arrested and charged with sexual battery upon a white female, age 16. This assault is alleged to have occurred at the licensed premises at night when no children of tender age were present. The alleged victim was in no way connected to the licensed premises. The criminal charges against Joshua Science were unresolved as of the date of the formal hearing. In addition, Joshua was arrested and charged with offenses involving forwarding pornographic images over computers to minors and solicitation of minors over a computer on or about March 28, 2004. See Respondent's Exhibit 5. It was learning about the arrest and charges against Joshua Science that caused the Respondent to initiate an investigation of the Petitioner and the licensed premises. Information provided to the Department brought to light a disciplinary action initiated by the Educational Practices Commission against the teaching certificate of Petitioner's husband, Ted Science, in 1997. As a result of the derogatory information developed about Joshua and Ted Science, the Department entered into an agreement with Petitioner dated March 31, 2003. The Agreement (the agreement) of March 31, 2003, (Respondent's Exhibit 6) states as follows: It is agreed that Josh Science shall have no access to the daycare facility at anytime. The locks shall be immediately changed. This action of "no access" shall survive any resolution of the criminal case pending against Josh Science. Ted Science may only have access to the facility after 6:00 p.m. until 6:30 a.m. on weekdays and shall have access on weekends. Mr. Science shall not be a bus driver for the daycare nor shall he have any contact whatsoever with any of the children. A provisional license shall be issued for 6 months beginning 3-31-03. There shall be random unannounced inspections by the Department. There shall be a status meeting to take place no later than 10 days before the provisional license expires. The Department duly issued a provisional license and the Petitioner operated the premises pursuant to its terms until September 2003, when it received a regular license. During this time there was no allegation that the Petitioner failed in any respect to conform to the terms of the agreement. After the issuance of the regular license in September 2003, the Petitioner began to ask her inspectors about getting her husband released from the terms of the agreement. Petitioner was never given a specific answer regarding what she must do, but was told to start by having Mr. Science comply with the provisions imposed upon him as conditions for returning to teaching in paragraph 6 of the stipulation and agreement with the Educational Practices Commission (EPC) that resolved the administrative complaint brought against Mr. Science by the EPC. Paragraph 6 of the stipulation and agreement provided that, prior to employment or certification as an educator, Mr. Science would provide written verification from a professional approved by the Recovery Network Program that he poses no threat to the safety or well-being of students and is able to perform the responsibilities of an educator. Evidence was received that the Sciences were attempting to comply with that requirement which was complicated by finding a qualified psychologist. A report was delivered to the Department; however, as of the time of the hearing, the report had not been considered. The failure of the Department to consider this report raises the essential problem inherent with the Department's position that Petitioner's continued licensure is dependent upon continued adherence to the terms of the agreement. This position permits no point of entry to challenge factually or legally the position assumed by the Department and constitutes a violation of Chapter 120 and constitutional due process. In the aforesaid stipulation and agreement with the EPC, Mr. Science neither admitted nor denied the allegations contained in the administrative complaint filed by the EPC. The only proof of the substance of the allegations introduced was the file of the EPC that was introduced under the seal of the EPC. While this is sufficient to prove that an action was initiated and settled, it is not competent evidence of the underlying facts about which the file is mere hearsay. There was no evidence produced at hearing that Ted Science is unable to pass level 2 screening. Having previously worked at the licensed facility and presumably having passed level 2 screening after the settlement of the EPC case, in the absence of some showing by the Department, Ted Science must be presumed qualified. Settlement of a disciplinary case brought by the EPC is not grounds for disqualification. The records introduced under the seal of the court clerk show that serious criminal charges were filed and are pending against Joshua Science including sexual battery on a minor. There was substantial, competent testimony presented regarding the criminal allegations pending against Joshua Science relating to solicitation via computer and transmission of pornography via computer. The letter of denial dated March 24, 2004, defines the issues in this case, and the letter of denial states that the license was denied because of the alleged violation of the terms of the agreement dated March 31, 2003; specifically, that Ted Science was on the premises during a weekday when the children were present. Competent and substantial evidence was received that Ted Science was at the licensed premises during a weekday when children were present in February 2004. Additional evidence was received that Ted Science was observed at the facility between the period April 2003 and March 2004; however, this evidence was vague as to dates. Competent, substantial evidence was received that Joshua Science was in his father's car in the parking lot of the facility, and possibly in the vicinity of the licensed premises on another occasion. Mr. Hubbard, who had children in the school, saw Joshua at the door of the licensed premises during the period March 2003 and April 2004; however, the exact time was not established. Mr. Hubbard could not see inside the facility, and could not see if Joshua was under the supervision of his father. Mr. Hubbard also saw Ted Science at the daycare's Christmas pageant in December 2003, after the regular license was issued. Joshua Science is required to be under the direct supervision of Ted Science at all times as a condition of his release from pretrial confinement.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Department issue the subject licenses to the Petitioner and her facility. DONE AND ENTERED this 25th day of August, 2004, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 25th day of August, 2004. COPIES FURNISHED: James Cummins, Esquire 111 West Main Street, Third Floor Inverness, Florida 34450 T. Shane DeBoard, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 Paul Flounlacker, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue By stipulation of the parties, the issue to be decided is whether the Petitioner's application for registration of a family day care facility should be approved.
Findings Of Fact The Petitioner operated a family day care home (FDCH) for three years prior to the application in question. Prior to that, she had cared for children at her church; and prior to the incidents discussed below, the Petitioner had had no problems of record in the operation of her FDCH. In June 2002, the Petitioner was owner and operator of a FDCH located at 1222 Essex Road, Daytona Beach, Volusia County, Florida. In June 2002, Diana Vece received a report from an employee of the federally funded program that the employee had visited the FDCH to check attendance and found the Petitioner's teenage son alone at the facility. The employee called Vece, who called the police and proceeded to the FDCH. The Petitioner, Vece, and the police arrived at the home at virtually the same time. The Petitioner had the day care children with her in her car when she arrived. Vece asked for access to the home, and Moore let her in, entering with her and the children. Upon entering, Vece observed the Petitioner's teenage son looking after the Petitioner's own children and an infant. The name and status of the infant was not established. Vece proceeded to conduct a spot inspection of the FDCH which revealed that five of the children being cared for did not have current immunizations. Vece checked with her supervisor, "Skeeter" Surguine, regarding the situation, and they closed the FDCH. The Department informed the Petitioner by letter in July 2002 that she must cease and desist operation of her FDCH immediately. The Petitioner voluntarily ceased operations as a result of the letter and in August or September 2002, reapplied to reopen her FDCH. It appears that the Department denied this application and the Petitioner requested an informal hearing. After the informal hearing, the Department determined that it had insufficient basis to deny the application and approved the application in December, retroactive to November 25, 2002. The Petitioner explained that her required back-up person was being inspected for licensure of her own facility on the day when her teenager was left to attend the sleeping infant. On December 3, 2002, the Petitioner had car trouble and asked one of the parents of a child, whom she cared for, to use her car. The parent came to the FDCH, the Petitioner placed all the children in the car, and the parent drove them to the parent's home where the Petitioner got out of the passenger's seat and walked around the car to the driver's seat and drove her children to their school. The parent got out of the car and walked into the house followed by one of the children for whom the Petitioner was caring. The parent became immediately aware of the child and took care of the child with whom the parent was acquainted; however, the parent was unable to contact the Petitioner to let her know about the child because she did not know to which school the Petitioner was going. The Petitioner went to her child's school and got out of the car. When she got ready to leave, she counted noses and realized she was short one child. She looked around the school and sought the help of an off-duty police officer who worked at the school to search for the child. When they were unable to find the child, the police officer put in a report. Shortly afterward, they checked with the parent and discovered she had the child. It is unclear what, if any, action was taken against the Petitioner's registration; however, it is stipulated that this hearing is to be treated as an application case and that the grounds for denial of the license are the incident in June 2002 and the incident in December 2002.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Children and Family Services enter a final order approving the Petitioner's application. DONE AND ENTERED this 25th day of June, 2003, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 25th day of June, 2003. COPIES FURNISHED: George P. Beckwith, Jr., Esquire Department of Children and Family Services 210 North Palmetto Avenue, Suite 412 Daytona Beach, Florida 32114-3269 Cynthia Moore Cynthia Moore Family Day Care Home 1222 Essex Road Daytona Beach, Florida 32117 Paul F. Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether Respondent should be determined to be found in violation of Florida's Medical Practice Act for gross negligence or failure to practice medicine with that level of care, skill, and treatment recognized by a reasonably prudent similar physician as being acceptable under the circumstances or for _ ) failure to keep written medical records justifying the course cf treatment of a patient throughout seven months of her pregnancy? ( If so as to either charge, what is the appropriate discipline to be imposed by the Board of Medicine?
Findings Of Fact The Parties Petitioner, the Agency for Health Care Administration, is within the Department of Business and Professional Regulation, together with the Board of Medicine, the regulatory authority charged with regulating the practice of medicine in the State of Florida. Section 20.42 and Chapter 458, Florida Statutes. Respondent, Neville Clement Jack, M.D., is the holder of a license to practice medicine in Florida, license number ME 0046020. Prior Discipline by the Board of Medicine .. While holding license number ME 0046020, Dr. Jack has ) been disciplined twice by the Board of Medicine. He was first disciplined by a final order dated August 26, 1994. He had been charged by administrative complaint with ( violating Section 458.33l(l)(c), Florida Statutes, in that he had entered a plea of nolo contendere in the Thirteenth Judicial Circuit Court for Hillsborough County to seven counts of petit theft. The plea was based on criminal charges in which he was accused of defrauding Medicaid of $11,227.00 by billing Medicaid for services he had not provided. Dr. Jack did not contest the factual allegations in the administrative complaint. Dr. Jack was fined $2,500.00 and ordered to subject his practice to procedures designed to achieve quality assurance in the practice. Dr. Jack was disciplined again by a final order entered December 13, 1995. In this second proceeding, Dr. Jack was charged with twelve counts of violating the disciplinary C provisions of Chapter 458, Florida Statutes. Six of the counts charged Dr. Jack with failure to practice medicine with reasonable safety, two charged him with medical records violations, one with making deceptive representations in the course of his practice and one with inappropriate prescription of legend drugs. In entering a consent order with the Agency for Health Care Administration, Dr. Jack neither admitted nor denied the charges. The final order disposed of the case by fining him $5,000 and placing him on probation for a two year period effective December 5, 1995. Of the seven cases of patients whose treatment by Dr. Jack led to the twelve counts of violations of the Medical Practice Act in the administrative -"- ) complaint, issued in this second proceeding, three -cases, in part, consist of charges involving failure to respond to telephone calls or pages in a timely manner; three also consist of charges Dr. Jack failed to be present at critical moments in obstetrical care, including delivery, and follow-up or postpartum care. Failure to respond to pages or telephone calls at critical moments of need by an obstetrical patient is at the heart of this case, a case involving prenatal care of A.W., a woman who had entrusted her first pregnancy to Dr. Jack. Patient A. W.'s Obstetrical Care Prior to October 1992 In early 1990, Dr. Jack admitted a new patient to his practice of gynecology: A.W. Dr. Jack and A.W. had know each other prior to establishment of their physician-patient relationship because they were members of the same church. A little more than two years later, when Patient A.W. suspected that she might be pregnant, she made an appointment with Dr. Jack's office. If pregnant as she suspected, A.W. thought Dr. Jack would be the ideal person to provide her with obstetrical care. She been his gynecological patient for more than two years. In addition, she had known him for some time and had always believed him to be a reputable physician. In fact, she had seen Dr. Jack's name listed in her Humana provider publication as both a gynecologist and an obstetrician. In addition to thinking Dr. Jack would be an ideal obstetrician for prenatal care and delivering the baby, A. W., ) knew that if she were pregnant, she did not want the baby to be delivered a birthing center. She wanted the baby to be delivered at a hospital by a reputable obstetrician. In her mind, Dr. Jack was that obstetrician. He was the obstetrician whom she felt she could trust with a moment extremely important to her and her child-to-be: the baby's birth. A.W. presented to Dr. Jack's office on May 8, 1992 with indications of pregnancy. Dr. Jack conducted a full physical examination of her, including a sonogram. She was diagnosed as pregnant with an expected delivery date of December 21, 1992. Dr. Jack accepted A.W. as a prenatal patient. Unbeknownst to A. w., however, Dr. Jack, in May of 1992, did not have privileges at any hospital. He was not able and knew he was not able, therefore, to deliver A. W.'s baby at a hospital. It is not clear from the record why Dr. Jack did not have privileges at any of the local hospitals. It may have been because he had been convicted of seven criminal counts of petit theft involving medicaid fraud. It may have been because of the charges in the two cases for which he was disciplined several years later by the Board of Medicine. Whatever the basis for the loss of privileges, however, the fact remains: from the moment A.W. presented in May of 1992 throughout the course of care he provided A.W. while she was pregnant, Dr. Jack did not have privileges at any local hospital at which he could have delivered A.W.'s baby. At her initial visit the time most appropriate for the information to be communicated to a pregnant woman, A.W. was ' - \ not informed by either Dr. Jack's office staff or Dr. Jack, himself, that Dr. Jack did not have privileges at a local hospital. Nonetheless, for th·e next few months, A.W.'s pregnancy and prenatal care proceeded uneventfully. Dr. Jack provided A.W. with appropriate prenatal care, such as checking fetal heart tone, analysis of weight gain, checking growth of the fetus by measuring the patient's abdomen, and performing urinalyses. But, Dr. Jack did not refer A.W. to an obstetrician for the expected delivery. And A.W., not knowing that Dr. Jack could not conduct the delivery at a hospital, made no attempt to contact an obstetrician. During several of the visits to Dr. Jack's office prior to October of 1996, A.W. made known her intention to have ) the baby delivered at University Community Hospital ("UCH") in discussions with Dr. Jack's staff. It may be that staff members who participated in these discussions thought A.W. had been informed as part of standard office procedure of the lack of Dr. Jack's privileges. But, such procedure had not been followed in the case of A.W. At none of the times A.W. discussed delivery at UCH did the staff inform A.W. that Dr. Jack did not have privileges at UCH or, for that matter, at any other hospital in the area. Neither did Dr. Jack inform her of the status of his privileges at local hospitals. A.W.'s pregnancy continued to·proceed uneventfully until mid-October. ) Prenatal Care in October and November, 1992 On October 16, 1996, A.W., then close to commencement of her eighth month of pregnancy, presented to Dr. Jack with complaints of a urinary tract infection. Two weeks later, she presented a second time with symptoms which Dr. Jack diagnosed as a urinary tract infection and for which he prescribed Bactrim. Dr. Jack saw A.W. for the infection on November 2, 9 and 11, 1992. Following the November 2 office visit, Dr. Jack prescribed Amoxicillin. Following the November 9 visit, he prescribed Amoxicillin again. On November 11, 1992, Dr. Jack ordered a culture to determine the origin of the infection because A.W. was not responding to the prescribed antibiotics. On one of these visits, little more than one month prior to the expected delivery of the baby, Aw. was accompanied ( by W.W., her husband. W.W. expressed to Dr. Jack his concern about the antibiotic treatment received by A.W. and asked why she wasn't being hospitalized. W.W. thought his wife should be monitored in a hospital since the infection had lingered so long and seemed serious. W.W. was especially concerned since the infection was occurring while A.W. was experiencing a first-time pregnancy. The meeting between A.W., W.W., and Dr. Jack lasted twenty minutes. At no time during the meeting did Dr. Jack inform W.W. that he did not have privileges at any hospital. Nor did Dr. Jack inform W.W. that he was providing prenatal care only and that it was going to be necessary for him and his wife to obtain an obstetrician for the delivery. On November 13, 1996, A.W. saw Dr. Jack at his office again in order to have performed a sonogram, a procedure standard near the commencement of the last month of a full-term pregnancy. At the November 13 office visit, the staff informed A.W. that Dr. Jack "was not delivering right now, so ... he had other doctors who were delivering for him." Tr. 29. This was the first time that A.W. had ever heard or been informed that Dr. Jack did not have hospital privileges and would not be delivering the baby. When asked whether she wanted the delivery at UCH or another hospital, A.W., consistent with her earlier discussions with Dr. Jack's staff, answered UCH. In response, Dr. Jack's ) staff told A.W. that an appointment would be made in the first week of December for A.W. to see Dr. Reimer, an obstetrician with privileges at UCH. Consistent with the default up until November 13, 1992, by Dr. Jack and his staff in informing A.W. of his lack of privileges, Dr. Jack's records do not reflect that he ever informed A.W. that he did not have privileges. Likewise, on the November 13, 1992, when A.W. was finally and for the first time informed of the status of his privileges, Dr. Jack's records do not reflect that A.W. was informed. In light of the revelation on November 13, 1992, that Dr. Jack would not be delivering her baby, A.W. accepted the appointment made for her with Dr. Reimer. It was not A.W.'s \ // independent decision, however, to avail herself of Dr. Reimer's obstetr ical care at this late stage in her pregnancy. The decision to accept the appointment was thrust upon A.W. by the ( circumstances of the late revelation of the status of Dr. Jack's privileges. A.W made none of the arrangements to see Dr. Reimer. The arrangements were handled solely by Dr. Jack's staff. A.W. was told by Dr. Jack's staff that her records were being copied and sent to Dr. Reimer. Contrary to this representation, however, none of A.W.'s records were transmitted to Dr. Reimer's office. Obstetrical Care in December 1992 On the day of her appointment with Dr. Reimer during the first week of December, A.W. attempted to see Dr. Reimer but she could not find his office. She went to Dr. Jack's office for directions but, by the time she reached his office, the time ( for the appointment with Dr. Reimer had passed. A.W. had an appointment scheduled with Dr. Jack for the upcoming Friday afternoon, December 4, at 3:30. Dr. Jack's staff made a second appointment with Dr. Reimer for one hour before: 2:30 p.m., the afternoon of December 4. With the benefit of the new directions, A.W. found Dr. Reimer's office in time for her 2:30 appointment that Friday afternoon. Dr. Reimer's office refused, however, to allow A.W. to see Dr. Reimer because it did not have her prenatal records or any other medical records of hers. A.W. returned to the office in order to obtain the records, herself, and to transport them back to Dr. Reimer's office. In addition she intended to ( --, see Dr. Jack for her 3:30 appointment. When she arrived at the ) Dr. Jack's office, however, it was closed. A.W. attempted to reach Dr. Jack by telephone in the hope that his answering service would be able to inform him of the need to return her call, but this attempt, too, proved unsuccessful. At hearing, A.W. described her predicament on the afternoon of December 4, 1992, in the ninth month of her pregnancy and little more than two weeks from the expected birth of her child, in response to the question, "[h]ow were you feeling on that day?" A bit heavy [and in slight discomfort] and I just knew it was three weeks I hadn't seen a doctor, and I knew I had to see somebody if Dr. Reimer didn't see me ... (Tr. 32.) ) December 5, 1992 In the early morning of December 5, A.W.'s slight discomfort of the day before had become abdominal pain. At approximately 7 a.m., A.W. made the first telephone call of many calls she made throughout the day to Dr. Jack's office. As the day wore on with no response from Dr. Jack, the pain grew worse. Finally at 5 p.m., Dr. Jack returned the call. Over the telephone, Dr. Jack diagnosed A.W.'s condition as false labor. After the diagnosis by telephone, the abdominal pain continued to grow worse until it became excruciating. At approximately 8:50 p.m., A.W. reached Dr. Jack by telephone and told him that she wanted to go_ to the hospital. At this moment of A.W.'s worsening condition and what certainly sounded from A.W.'s description of symptoms to be a serious situation, Dr. Jack responded by telling her to call Dr. Reimer. In response to a question on direct examination about whether Dr. Jack had met the standard of care in this case, the agency's expert witness, Dr. Pierre Bouis, testified, that to meet the standard of care an obstetrician not able to deliver must "do everything possible to make sure that the patient is cared for by an appropriate facility and/or physician." (Tr. 140.) Without the required standard of care, that is without any assurance whatsoever of being cared for by an appropriate physician, A.W. presented to the emergency room at UCH at 9:00 C p.m. She asked the attendants to call Dr. Reimer. Dr. Reimer was called but because he had not seen A.W. and did not have any of her records, he declined to come to the hospital. Nurses at UCH examined A.W. Observing that her abdomen was very hard and unable to detect a fetal heart tone, the nurses called Dr. Commedore, the emergency on-call obstetrician for UCH. Dr. Commedore admitted A.W. to UCH and conducted an examination. There were no fetal heart tones. Furthermore, after conducting ultrasound at bedside and other diagnostic procedures, Dr. Commedore detected no fetal movement. Dr. Commedore diagnosed A.W. as having suffered abruptio placenta, premature separation of a normally implanted placenta. Abruptio placenta places an unborn child in great jeopardy because of loss of oxygen in the baby's bloodstream. A Cesarean section was performed after the failure of ) inducement of labor. Dr. Commedore delivered a stillborn baby boy. An autopsy revealed the stillborn child to have no congenital abnormalities, a normal three vessel umbilical cord and lungs with congestion and meconium aspiration. Abruptio placenta suffered on December 5, 1992, a day spent by A.W. beginning at 7 in the morning until 5 p.m. that evening trying to contact Dr. Jack, had caused the stillbirth of the child of A.W. and W.W.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: that the Board of Medicine enter a final order finding Respondent to have violated both paragraphs (m) and (t) of Subsection 456.331(1), Florida Statutes and revoking his license to practice medicine. If the Board should choose a penalty less severe than revocation, Dr. Jack should be prohibited from practicing obstetrics, including the provision of prenatal care, for the remainder of his practice as a physician licensed by the Board of Medicine. DONE AND ENTERED this 24th day of December, 1996, in Tallahassee, Leon County, Florida. - , v--z (fLJiL. - ClvID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 1996. COPIES FURNISHED: Steven Rothenberg, Esquire Agency for Health Care Administration 9325 Bay Plaza Blvd., Suite 210 Tampa, Florida 33619 Neville Clement Jack, M.D. 6814 Rosemary Drive Tampa, Florida 33625 Dr. Marm Harris E ecutive Director Agency for Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 )
