The Issue Whether Respondent's medical license should be suspended, revoked, or otherwise disciplined.
Findings Of Fact Respondent is a licensed physician in the State of Florida, holding license No. ME 0071307. Respondent specializes in psychiatry. However, he is not Board-certified in psychiatry. Prior to licensure, Respondent had a history of heavy drinking in medical school; an alcohol overdose resulted in a hospitalization in Tampa, Florida, followed by a ten week intensive outpatient program. In 1996, Respondent applied to the Board of Medicine for licensure as a physician in the State of Florida. During the licensure application process, the Board became aware of Respondent's history of alcohol and drug abuse and referred him to PRN for an evaluation. PRN is the impaired practitioners program for the Board of Medicine. It was created pursuant to Section 456.076, Florida Statutes. PRN is an independent program that monitors the evaluation, care, and treatment of impaired health care professionals. PRN oversees therapy and treatment and provides for the exchange of information between the treatment providers, PRN and the Department. PRN also refers impaired practitioners to treatment providers or treatment programs which have been approved by the Department. The purpose of PRN is to protect the public from physicians who have an impairment that is likely to interfere with the competent provision of medical services. PRN does not provide medical services. Chemical dependency is a disease for which there is no cure. It can be placed in remission by practicing a program of recovery and/or exercising a great deal of self-discipline. Remission is not easy to achieve or maintain and is the sole responsibility of the licensee to maintain. A program of recovery involves a support network of individuals who understand the disease and can offer support. Such support includes recognizing the signs and symptoms of potential relapse and confronting the individual about such relapse behavior. Relapse behavior is any behavior which a person uses to rationalize the use of a chemical, to avoid situations that might prevent use of a chemical and /or engage in situations which either directly or indirectly lead to the use of a chemical. Relapse behavior is often very subtle and insidious. The type of confrontation can range from very gentle to very intense, depending on a recovery program's philosophy. The PRN recovery program is more stringent than other impaired practitioner programs because of the potential consequences of relapse on the health, safety, and welfare of the public. In addition, PRN support groups are for professionals and are run by a facilitator who is trained to observe the type of behavioral patterns that are exhibited in an individual with an impending relapse. The PRN program tends to follow an intense confrontational philosophy. PRN's method of monitoring yields an extremely high rate of success. However, PRN also has failures in its monitoring. The minimal length of a standard PRN contract for an individual with a chemical dependency problem is five years. Statistics have shown the five-year term to be the most effective length of monitoring in order to guarantee the best prognosis possible. The longer the contract, the lower the risk of relapse. After five years, the risk of relapse is somewhere between five and ten percent. The conditions of a standard PRN contract include having a primary care physician, attendance at a professional support group, urine monitoring, and attendance at a recovery self-help group like AA. However, PRN does not require a self- help group which utilizes the spiritual or religious components of AA. There are alternative self-help groups available to Respondent which do not include such components. A professional support group and a trained facilitator is required due to the very complex and difficult management problems posed by physicians. The professional support groups have individuals who are newly in recovery and others who have been in recovery for five, ten, and fifteen years. Those professionals who have a number of years of recovery are very beneficial to the group since they have experienced similar problems in terms of balancing family needs, extreme requirements of medical practice, financial issues that go along with being a physician, and other aspects of being a physician that are not generally experienced by the general population. Such a physician support group works for the majority of physicians in PRN with a chemical dependence. However, the evidence did not show that participation in a professional support group is a necessity or beneficial to all of PRN's chemically dependent physicians. In particular, the necessity of participation of Respondent in such a group was not clear. Indeed, Respondent's participation in such a group appears to have been detrimental to his recovery because the primary underpinnings of Respondent's alcohol dependence are in Respondent's ongoing difficulty in dealing with various forms of severe familial inflicted trauma he experienced in his adolescence. The goals of PRN's monitoring contract are to stay sober, to stay in recovery, and to get one's life back in order including family life and the practice of medicine. The difference between the PRN program and other programs is the ongoing nature of the communications with the primary health care physician, the monitoring of prescription medications, the monitoring of physical and psychiatric problems, and the random urine monitoring system. PRN referred Respondent to Raymond Johnson, M.D., for evaluation of Respondent's possible chemical impairment. Around April 22, 1996, Dr. Johnson evaluated Respondent and diagnosed him as being alcohol dependent, in remission. Remission is defined as having not used a chemical. Dr. Johnson noted that Respondent was in a relapse pattern, although he may not have relapsed yet. A relapse pattern consists of behaviors exhibited by a chemically dependent person which indicate that the person either has or will begin to abuse substances. Dr. Johnson recommended that PRN monitor Respondent with the following conditions: One PRN meeting per week and at least three AA meetings per week; regular random urine drug screenings; a sponsor; and psychotherapy focusing on addictions and family of origin issues. Dr. Johnson felt that Respondent needed psychotherapy due to his lack of insight into his rebelliousness during his teen years and due to his difficulty in identifying relapse patterns. On May 25, 1996, Respondent executed a lifetime monitoring contract with PRN which included the following conditions: a) submit to random urine, drug, or blood screens; abstain from any use of drugs or alcohol; (c) attend AA or NA meetings two times a week; (d) attend a 12-step program of recovering professionals; (e) notify PRN of the use of any drugs or alcohol; (f) and withdraw from practice for evaluation at the request of PRN if a problem develops. The contract was based in part on Dr. Johnson's recommendations. However, the evidence did not demonstrate that the recommendation for psychotherapy was implemented by either Respondent, PRN, or the Board. In Respondent's case the lack of focused psychotherapy would prove to be a problem. However, it remains Respondent's responsibility to seek whatever help he needs in order to maintain his sobriety. Because of Respondent's participation in PRN, on September 12, 1996, the Board of Medicine granted Respondent's application for licensure by endorsement as a physician with Respondent's license to be subject to a period of five years of probationary terms and conditions, including the following: You shall not consume, inject, or ingest any controlled substances unless prescribed or administered by another practitioner authorized to prescribe controlled substances. Your [sic]shall not consume alcohol; and You shall participate and comply with the Physician's Recovery Network and shall enter into a and comply with an after-care contract with PRN. At some point after licensure, Respondent became disillusioned with the professional support group, the group's confrontational style, the demands of PRN staff which Respondent perceived as threatening, and attendance at AA which Respondent felt violated his religious freedom. As Respondent's participation in his PRN program became more erratic Respondent began to relapse; a classic pattern of relapse. However, even with his dissatisfaction with PRN and his underlying psychological difficulty, it was Respondent's sole responsibility to maintain his sobriety. In late November 1999, Respondent, in violation of the terms of his licensure, began to drink alcohol. Respondent sometimes consumed up to 12 beers a day. Petitioner consumed the alcohol even though he was being monitored by PRN and in treatment under his PRN contract. There was no evidence that Respondent's relapse had an adverse impact on his provision of psychiatric services at the correctional institution where he was employed. On December 19, 1999, over three years into his PRN contract, Respondent was arrested and charged with Driving Under the Influence (DUI). Respondent's blood alcohol level was 0.21. Such a level while driving demonstrates that Respondent has an alcohol dependence problem and that Respondent has developed a tolerance to alcohol. Respondent subsequently pled guilty to the charge of misdemeanor DUI. He was sentenced to eight month's probation, a $565.00 fine, 50 hours of community service, DUI School, six month's driver's license revocation, and completion of the victim awareness program. Respondent successfully completed his sentence. On December 21, 1999, Respondent contacted PRN and advised that he had been arrested for DUI. PRN staff instructed Respondent to withdraw from practice and get evaluated, as per his monitoring contract conditions. Respondent had already voluntarily withdrawn from practice. However, he did not voluntarily withdraw from practice until his drinking came to the attention of law enforcement. Respondent knew that attention from law enforcement would cause his drinking to come to the attention of PRN and the Board. On or about January 6, 2000, Kenneth Thompson, M.D., evaluated Respondent. Dr. Thompson is certified by the American Society of Addiction Medicine and is employed as a clinical associate professor. He is the medical director of the Florida Recovery Center in the Impaired Professional Program at the University of Florida. The program provides primary care to patients with addictive disorders. The program is approved by the Department. On the date of the evaluation, Respondent reported to Dr. Thompson a history of heavy drinking in medical school; an alcohol overdose which resulted in a hospitalization in Tampa, Florida, followed by a ten-week intensive outpatient program; and, most recently, a relapse during Thanksgiving of 1999, when he returned to drinking of up to a 12-pack of beer per day. Dr. Thompson concluded that Respondent was alcohol dependent and in relapse. He recommended Respondent withdraw from the practice of medicine and enter residential treatment. Respondent did not mention any trauma he had suffered during his younger years. His failure to mention such trauma was, in part, due to his denial of such trauma. The ability to maintain denial is high in a chemically dependent person. Dr. Thompson's recommendation that Respondent be involved with a residential or an intensive treatment program was based on the facts that Respondent has a high risk of relapsing since he was under monitoring by PRN when he returned to drinking; that Respondent's personality styling lent him to being resistive to treatment; and that Respondent needs to be involved in a strong peer group. In addition, Respondent's history of a prior hospitalization which failed, a prior outpatient program which failed, a monitoring program which failed, a DUI and a relapse, necessitated residential treatment. Residential treatment is the most intense form of program available and the only one not yet tried by Respondent. At the time of Respondent's evaluation in January 2000, both Dr. Pomm, the medical director of PRN and Dr. Thompson concluded that Respondent was unable to practice medicine with reasonable skill and safety to patients. When a practitioner is unable to practice medicine with reasonable skill and safety to patients, that person is either impaired or his or her impairment is in question. The danger of allowing a suspect individual to practice, without knowing more information about the individual's addiction, puts the health, safety, and welfare of the public at an unacceptable level of risk. The determination by Dr. Pomm and Dr. Thompson was based on the following reasons: Respondent had relapsed again after a chronic history of recovery; various attempts at recovery, treatment, and relapse; lack of a documented history of sobriety; and Respondent's high risk for continued relapse since he was not currently in treatment. On January 8, 2000, per Dr. Thompson's recommendation Respondent went to Shands Hospital's Vista treatment facility for an initial evaluation and admission to the Professional's Residential Program. The program is approved by the Department. Respondent was willing to comply with the residential treatment recommended by Dr. Thompson. Respondent was not willing to comply with any of the recommendations regarding participation in a physicians support group. Respondent did not enter the residential treatment program at Vista. He simply could not afford the hefty fee charged by Vista for its program. The same financial barrier applied to other residential treatment facilities approved by the Department. PRN did offer a small loan to Respondent to help pay for the cost of residential placement. However, the loan was inadequate to meet the huge cost of residential treatment. In February of 2000, Respondent's contract with PRN was voided and Respondent's case was turned over to the Department with a recommendation of an emergency suspension order. On or about February 20, 2000, Respondent began treatment at CATS. CATS is a non-PRN approved outpatient program in Tavares, Florida. Bud Stalter is the owner and director of CATS. Mr. Stalter does not hold a four-year or advanced degree, but does have many years of experience in the drug addiction recovery field. He is well thought of in the addiction recovery field and has dedicated his life to that field. Mr. Stalter personally counsels Respondent and provides treatment to Respondent for free. Even without a degree, Mr. Stalter is well qualified to operate an addiction recovery program. The CATS program deals with a variety of counseling issues such as co-dependency, marriage counseling, stress management, anger management, domestic violence, and abusive trauma in addition to chemical dependency. It employs a non- confrontational therapeutic method and tries to treat all of a person's problems which contribute to relapse or continued addiction. There are no medical physicians involved in Respondent's treatment. The program does employ random drug testing. However, the evidence did not show that the drugs CATS tests for are the same as the drugs tested for by PRN. The CATS program does not provide professional self- help groups. Again the need for such a peer group was not established by the evidence. The evidence did show that a professional peer group is generally a good idea and beneficial to most chemically dependant physicians. The CATS program does provide a twelve-step support group. Respondent attends AA at CATS. PRN's professional support groups are conducted by facilitators who are trained to identify relapse behaviors such as individuals not going to meetings as often, lacking insight into the impact of their disease, making poor decisions, and displaying increasing amounts of anger, defensiveness, projection, denial, and rationalization. The importance and effectiveness of these PRN group facilitators is punctuated by the fact that after Respondent had been confronted several times by a facilitator regarding his relapse behavior, Respondent did indeed relapse. However another type of group with a trained facilitator such as the one at CATS could have provided the same oversight as PRN's professional support group. On or about October 23, 2000, Respondent was re- evaluated by Dr. Thompson at which time Respondent reported that he was involved in the CATS program, had been attending some AA meetings, and had not had any alcohol or other substances since December of 1999. Based on the standard which Dr. Thompson used in monitoring health care professionals, he could not find any clear evidence that Respondent had maintained his sobriety since December of 1999 or that he had been monitored in an acceptable manner. The standard used by Dr. Thompson requires attending weekly, monitored PRN group meetings with a counselor who is known by either Dr. Thompson or PRN, and drug screens which are the type that would pick up atypical drugs, such as benzodiates or the more obscure opiates, that a physician might abuse. There was no evidence that Respondent requested that PRN investigate or review the CATS program to see if it could become a Departmentally approved treatment program for Respondent or that some of the provisions of Respondents monitoring contract be waived because such provisions did not benefit continuation of Respondent's remission. Likewise no such evidence was submitted at the hearing. Therefore, no findings of fact can be made regarding substitution of the CATS for parts of the PRN program can be made. Dr. Thompson also determined that Respondent's narcissistic features were adversely affecting his ability to recover from chemical addiction because of the greater level of resistance, the lack of insight into his behavior, and the tendency to think that he should be treated differently. A number of narcissistic features are present in Respondent's personality such as his tendency to project or blame other outside causes, entities, the Department, the PRN authority, and life circumstances for his current predicament. In addition, Respondent does not think that he should have to be treated in the same manner or placed under the same restraints as other people. Respondent's attempt to determine his treatment needs is gauged toward directing only those things that he's willing to do. Respondent has chosen a treatment program in which his treatment providers have considerably less medical and psychiatric experience than himself, which offers a completely non-confrontational therapeutic environment, in which he develops and directs his plan of recovery. In addition, the CATS program does not have a five-year contract with Respondent. CATS and Respondent have a one-year agreement for monitoring. After that year has elapsed, Respondent's participation is purely optional and he can continue to be monitored by CATS for "as long as he likes." However, Respondent has benefited more from the CATS program than from the program under his PRN contract. Again the evidence was insufficient to determine whether the CATS program could be substituted for the usual PRN program. The goal is to maintain remission and different programs may well work for different individuals if those programs can create the paper trail necessary to document continued remission. The treatment plan developed by Respondent and CATS is not familiar to PRN. The evidence showed that neither PRN or the Board reviewed the CATS program or the random drug testing CATS employed. The evidence did not show that PRN, the Board, or Respondent attempted to have the CATS program reviewed to see if it did meet PRN requirements. According to Mr. Stalter, Respondent's recovery plan has already been changed several times to accommodate Respondent's life situation. Indeed, the CATS program and gentler counseling are working for Respondent at this time. However, Respondent has also relapsed several times in the past. Clearly, Respondent needs to be actively monitored for licensure purposes. As of the date of the hearing, no current information was available to the Department experts as to what monitoring Respondent was receiving. Respondent's history shows that he is at a very high risk of relapse due to the fact that he is very early in recovery, and he has a chronic history of relapse. He has not complied with his PRN contract. Given this history, there is no reason to believe that Respondent will not repeat his history of relapse under CATS. Continued PRN monitoring is necessary. However, there is no reason to believe at this point that the CATS program cannot be substituted for parts of the PRN program or that the peer support group requirement might be adjusted given Respondent's need for greater therapy regarding his earlier trauma. Undoubtedly, Respondent violated Section 458.331(1)(c), Florida Statutes, by being convicted of DUI which under the facts of this case affects Respondent's ability to practice medicine. Additionally, Respondent violated Section 458.331(1)(g), Florida Statutes, by failing to perform the conditions of his licensure because he failed to comply with all the terms of his PRN monitoring contract and failed to remain sober and free from alcohol. However, Respondent was unable to pay for the treatment recommended by Dr. Thompson. Moreover, Respondent did seek out alternative treatment which at this point appears to be more beneficial to Respondent because it is addressing the underlying cause of his chemical dependence and self medication. Additionally, no direct harm occurred to any patient of Respondent. Respondent did recognize his need to withdraw from practice until he was back in control of his behavior. Based on these factors, it is not appropriate to revoke Respondent's license. However, it is appropriate to continue the conditions of Respondent's license and add that Respondent must participate in a PRN program unless and until a CATS or other CATS-type program becomes a Departmentally approved treatment program and that Respondent not practice until such time as he obtains such approval or enters into a standard PRN monitoring program. Failure of Respondent to participate in either an approved CATS program or a PRN program should result in revocation of Respondent's license.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Health, Board of Medicine, issue a final order imposing a reprimand; an administrative fine of $1,000.00; and placing Respondent's license on five years' probation with the following conditions: 1) that Respondent shall not consume, inject, or ingest any controlled substances unless prescribed or administered by another practitioner authorized to prescribe controlled substances; 2) that Respondent shall not consume alcohol; and 3) that Respondent shall participate and comply with the Physician's Recovery Network unless or until a CATS or other CATS type program becomes a Departmentally approved treatment program; that Respondent not practice until such time as he obtains a such approval or enters into a standard PRN monitoring program; and that failure of Respondent to participate in either an approved CATS program or a PRN program shall result in revocation of Respondent's license. DONE AND ENTERED this 1st day of May, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 May, 2001. COPIES FURNISHED: Kim M. Kluck, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Bradley J. Broyles, M.D. 1614 North Michigan Avenue Leesburg, Florida 34748-7036 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part Il, Florida Statutes, and Chapter 400, Part X, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The parties have since entered into the attached Settlement Agreement, (Ex. 2). Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The facility’s Certificate of Exemption is deemed surrendered and is cancelled and of no further effect. 3. Each party shall bear its own costs and attorney’s fees. Any requests for administrative hearings are dismissed and the above-styled case is closed. 4, In accordance with Florida law, the Respondent is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes. 5. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. Filed December 24, 2014 3:11 PM Division of Administrative Hearings 6. The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this 25” day of htaewnboer , 2014. , Secretary th Care Administration NOTICE OF RIGHT TO JUDICIAL REVIEW. A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct of this Final Order was served on the below-named persons by the method designated on this eis of , 2014. Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Thomas Jones, Unit Manager Facilities Intake Unit Licensure Unit Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Arlene Mayo-Davis, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Daniel A. Johnson, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Division of Administrative Hearings (Electronic Mail) Dagmar Llaudy, Esquire Law Office of Dagmar Llaudy, P.A. 814 Ponce De Leon Blvd, Suite 513 Coral Gables, Florida 33134 (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
The Issue The issue in this case is whether the Respondent should be disciplined for not meeting the “standard of care” by not responding appropriately to calls to him, as an on-call obstetrician, to come to the hospital and assist with a delivery.
Findings Of Fact The Respondent is licensed to practice medicine in Florida. He holds license ME 100568. He is board-certified in obstetrics and gynecology by the American Board of Obstetrics and Gynecology. In March 2011, the Respondent was one of two obstetrician-gynecologists (ob-gyns) employed by Family Health Centers of Southwest Florida (Family Health). Family Health also employed certified nurse midwives (CNM) and had agreements with two area hospitals owned by Lee Memorial System, Health Park and Gulf Coast. Health Park is a Level 3 hospital and has the means to provide the medical services needed for premature and high-risk deliveries. Gulf Coast is a Level 1 hospital and does not provide those services. On March 21, 2011, the Respondent was the on-call ob-gyn for the Family Health practice from 7:00 p.m. that evening until 7:00 a.m. the next morning. At 7:53 p.m. on March 21, 2011, Family Health obstetrical patient, M.T., was admitted to Gulf Coast’s emergency room, where she reported that she had been having contractions for two hours and was experiencing pain at the level of nine on a scale of ten. M.T. was a high-risk patient. She suffered a stillbirth in 2008 and a miscarriage in 2009. Yet, she had late and minimal prenatal care for being high-risk (having been seen by the Family Health practice only twice, not until the second or third trimester, and not by one of the doctors). The standard for viability at the time was 24 weeks, assuming good prenatal care and delivery in a Level 3 hospital with all needed specialists available, which was not the case at Gulf Coast. After triage in the emergency department of Gulf Coast, M.T. was admitted to the hospital and taken to labor and delivery. Barbara Carroll, a CNM employed by Family Health, was on duty there. Labor and delivery was busy that evening, and CNM Carroll saw M.T. at approximately 8:55 p.m. CNM Carroll took the patient’s history and noted in the patient’s medical record that an ultrasound done on February 24, 2011, indicated that the patient was 20 weeks and five days pregnant at that time, with a margin of error of plus or minus two weeks. Based on that ultrasound, CNM Carroll noted that the gestational age of the fetus on March 21, 2011, was 23 weeks and four days. (There was no evidence addressing the apparent miscalculation--if the gestational age on February 24 was 20 weeks and five days, it would have been 24 weeks and 2 days on March 21.) CNM Carroll then did a speculum examination, which revealed that the patient was in active labor, fully dilated and fully effaced, with a bulging bag of water (i.e., amniotic fluid). The type of examination performed did not allow CNM Carroll to determine the presenting part. CNM Carroll wrote these observations and impressions in the patient’s medical record. At approximately 9:00 p.m., CNM Carroll telephoned the Respondent, who was at Health Park at the time. It was not clear from the evidence what was said during their conversation. CNM Carroll testified that she reported what she had written in the medical record and asked the Respondent to come to the hospital immediately to assist with the delivery because she was not comfortable doing it herself. She testified that she thought the fetus was potentially viable, with a gestational age of 27 or 28 weeks, based on her examination and fetal heart monitor tracings. However, she did not recall telling the Respondent her belief as to the actual gestational age of the fetus. CNM Carroll testified that, in response to her report, the Respondent told her to start Pitocin, which would accelerate the labor and delivery process, and turn off the fetal monitor. She testified that when she balked, he said, “I told you what to do,” and she responded, “and I told you, I need you to come in.” She testified that it was clear to her that the Respondent knew from this curt exchange that she was not going to follow his orders. She testified that she declined to “argue” with the Respondent, which she had done on other occasions in the past. She testified that she thought he would change his mind and call back with new orders, which she claimed was a pattern of his. The Respondent recalled the conversation somewhat differently. He denied telling CNM Carroll to start Pitocin or to turn off the fetal monitor. He testified that he anticipated active labor would proceed and result in an abortion, since the fetus was not viable and would not survive a delivery at Gulf Coast that night. His plan was to give the patient pain medication for comfort and to manage the patient expectantly-- meaning do nothing, and continue to monitor the patient. He testified that he hoped labor might cease and the baby might possibly get to 24 weeks and be viable, if the labor and delivery could be arranged to occur at a Level 3 facility like Health Park. After the conversation, CNM Carroll completed her entries in the patient’s medical record. She wrote her impression that the patient was in active labor and her plan that the patient would be monitored, that the Respondent was aware and anticipated a spontaneous vaginal delivery, and that she expected a normal spontaneous vaginal delivery. She testified that she wrote “normal” unintentionally due to the stress she was feeling about the prospect of doing the delivery herself, without the Respondent being there to assist. Her notations make no reference to an order to start Pitocin or to turn off the fetal monitor. CNM Carroll testified that in the same approximate timeframe that she talked to the Respondent, she had Health Park’s transport team called to arrange for transportation to that facility’s neonatal nursery immediately after childbirth and had Gulf Coast’s high-risk delivery team (consisting of a neonatologist, a respiratory therapist, and an anesthesiologist) called to be ready for the delivery and transport to Health Park. She did not tell the Respondent she was doing this. CNM Carroll’s testimony about her telephone conversation with the Respondent at or about 9:00 p.m. that night is inconsistent with some of her entries in the patient’s medical record. If CNM Carroll’s testimony was not false in those respects, it may be mistaken, and it could be that CNM Carroll was confusing this telephone conversation with one later in the evening. CNM Carroll was very busy that evening, attending to several patients at the same time. Although not reflected in CNM Carroll’s entries in the medical record, and unbeknownst to her, the Respondent initially ordered an ultrasound and comprehensive blood test. The ultrasound results indicated at about 9:40 p.m. that the baby was in a breech position. The blood test results, which were communicated to the Respondent at about 10:00 p.m., indicated that the patient had an active infection (i.e., chorioamnionitis). At that point, the Respondent no longer believed that expectant management was appropriate and, at 10:05 p.m., ordered Pitocin to be administered to speed the delivery of the fetus before the infection spread. He reasonably did not expect the baby to survive. It is not clear from the evidence that the Respondent was told during these communications, at about 10:00 p.m., that the baby was breech. The Respondent claims that he was not told. It also is unclear whether the Respondent ordered the fetal monitoring to cease at that time. The Respondent said he did not. Some of the other witnesses recalled that he did, but there is no indication of such an order in the medical record. In any event, there was no clear and convincing evidence that it would have been inappropriate to turn off the fetal monitor at that point. At about the same time that the Respondent was ordering Pitocin, CNM Teresa Buckley returned to the hospital. CNM Buckley’s shift had started at 7:00 a.m. that morning, but CNM Carroll covered for her in the middle of the shift, so CNM Buckley could attend a child’s basketball game. CNM Buckley took report from CNM Carroll on the patient, M.T., and was told the gestational age of the fetus, the status of labor (active), and the imminence of delivery. She probably was told that CNM Carroll thought the fetus could be viable, despite its gestational age based on the heartbeat and monitor tracings, and that the Respondent had been called earlier and asked to come to the hospital to help with the delivery. After taking report, CNM Buckley examined the patient, reviewed the monitor tracings, talked to the patient, palpated the contractions, and examined the patient to determine the position of the fetus. During, or shortly after, the examination, the patient’s membrane ruptured. The rupture of the membrane may have been caused or hastened by CNM Buckley’s examination. Shortly after the membrane ruptured, at approximately 10:20 p.m., the baby’s foot appeared. CNM Buckley attempted to facilitate the breech delivery by sweeping the baby’s arms down and rotating. Both feet and legs and the torso were delivered, but the baby’s head was stuck and could not be delivered. At that point, at about 10:30 p.m., CNM Buckley asked the charge nurse to telephone the Respondent to say she needed him to come in to help with the delivery. The charge nurse telephoned the Respondent. The evidence is unclear exactly what she told him. The medical record states that she asked him to come in to assist with the delivery. The charge nurse testified that she informed him that the patient’s membrane had ruptured and asked if he was coming in. The Respondent’s best recollection is being told that CNM Buckley, who he did not know was on the case, needed his help with a breech delivery. He denies being told that the patient’s membrane had broken or that it was a footling breech delivery with the head stuck. The Respondent testified that he would have immediately agreed to proceed to the hospital had he been told either of those facts. He testified that he interpreted what he was told to mean he was being asked to help the CNM perform a breech extraction and that he said, “no,” his orders were to start Pitocin. The charge nurse testified that the Respondent asked if Pitocin was running, said to make sure it was running, and hung up. It is unclear from the evidence exactly when Pitocin was started. The medical record indicates that it was not started until 10:30 p.m., some 25 minutes after the Respondent ordered it. This would have been about the time when the Respondent asked the charge nurse about it. When the charge nurse reported to bedside, the CNM asked if the Respondent was coming in and if he was almost there. The charge nurse said she didn’t know, he didn’t say. The CNM had her call back to find out. According to the medical record, the charge nurse’s second call was made at 10:33 p.m., the Respondent was asked to “come in for breech delivery,” and the Respondent said, “no.” According to the testimony of the charge nurse, she told the Respondent that the CNM wanted the Respondent at bedside because she was having difficulty with the breech delivery and the baby’s head was stuck. The Respondent denied being told this in either of the two telephone calls. He testified that, still thinking the membrane was intact and the fetus was in the patient’s pelvis, he repeated his instruction, “no,” to a breech extraction. It was not proven by clear and convincing evidence that the Respondent was not being truthful about what he understood from the communications to him in the 10:30 and 10:33 p.m. telephone calls. When the charge nurse heard what the Respondent had to say, she hung up and reported to the CNM and others that the Respondent was not coming in. They paged Dr. Garner, the other ob-gyn employed by Family Health. Dr. Garner promptly answered the page and was asked to come in to assist with the delivery. He proceeded to the hospital and arrived at bedside at 10:55 p.m. The baby died during the delivery process and was delivered at 11:06 p.m. The Respondent testified that notwithstanding his inaccurate understanding of the status of the patient as a result of the telephone calls at 10:30 and 10:33 p.m., and his negative responses to the charge nurse, he actually proceeded to Gulf Coast. He stated that he telephoned the hospital on the way and was told that Dr. Garner was at bedside. At that point, he decided there was no need for him to go to the hospital and turned around to return to Health Park. During the hearing, DOH did not challenge or refute the Respondent’s testimony regarding his last phone call, but DOH’s proposed recommended order questions the Respondent’s veracity on the ground that the medical record does not mention it, and none of the other witnesses testified to knowing about it. Neither party produced other evidence that might establish whether the telephone call actually occurred. On this record, it was not proven by clear and convincing evidence that the Respondent did not proceed to Gulf Coast in response to the telephone call at 10:33 p.m., only to turn around when told that Dr. Garner was at bedside. DOH called an expert, Dr. Babu Veerendra Chitriki, who is a board-certified ob-gyn, to testify that the standard of care required that the Respondent, as the on-call ob-gyn, respond to each and every request for assistance he received from a CNM or nurse on the evening of March 21, 2011, by agreeing to come to the hospital. Dr. Chitriki’s testimony was refuted persuasively by the Respondent’s two experts, also board-certified ob-gyns, Drs. Mark Spence and Allison Thresher. They opined that it would be within the standard of care for the Respondent to ask questions, get an accurate understanding of the medical situation, and exercise medical judgment based on that understanding. Neither thought it was required by the standard of care for the Respondent to drop everything and come to the hospital as a result of the telephone calls he received on March 21, 2011, no questions asked. As to the telephone call from CNM Carroll at 9:00 p.m., it was not proven by clear and convincing evidence that it resulted in a clear request requiring the Respondent to accede and proceed to the hospital immediately. Rather, at most, it appears to have resulted in an unresolved disagreement between the health care professionals as to the appropriate plan of action. As to the 10:30 and 10:33 p.m. telephone calls, Drs. Spence and Thresher, as well as the Respondent, agreed that the standard of care would have required a positive response from the Respondent, had he been told what was occurring with the patient at the time. Instead, they viewed those telephone calls as evidence of an unfortunate failure of communication between the Respondent and the CNMs and nurses. It was not proven by clear and convincing evidence that the Respondent was lying when he testified that he was not told what was occurring at 10:30 and 10:33 p.m. It also was not proven by clear and convincing evidence that the facts were clearly communicated to the Respondent during those telephone calls. Finally, it was not proven by clear and convincing evidence that despite the failure to communicate, the Respondent did not in fact proceed to the hospital in response to those telephone calls, only to turn around when he learned that Dr. Garner was at beside. The Respondent is not without his share of fault for the miscommunications that occurred on March 21, 2011. Conflicts between him and the Family Health practice may have been a factor. He could have been a better listener, and he could have asked more and better questions to make sure he was getting the full picture of what was going on with the patient, particularly at the time of the 10:30 and 10:33 p.m. telephone calls. However, DOH did not charge him with practicing below the standard of care by not communicating. Rather, DOH charged him with failure to come to the hospital to assist with a difficult delivery after receiving a clear request to do so, a charge that was not proven by clear and convincing evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order dismissing the charges against the Respondent in this case. DONE AND ENTERED this 18th day of July, 2014, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 2014.
The Issue Whether Respondent violated Section 458.331(1)(s), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Respondent is, and has been at all times material hereto, a licensed medical physician in the State of Florida, having been issued license number ME 055502. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 458, Florida Statutes. Findings of Facts Derived From The Order of Emergency Suspension of License The Physicians Recovery Network (hereinafter referred to as “PRN”) is the impaired practitioners program for the Board of Medicine, pursuant to Section 456.076, Florida Statutes. PRN is an independent program that monitors the evaluation, care, and treatment of impaired healthcare professionals. PRN oversees random drug screens and provides for the exchange of information between the treatment providers, PRN and the Department, for the protection of the public. Raymond M. Pomm, M.D., is the Medical Director of the PRN and is charged with responsibility for the oversight of the program and documentation of compliance and noncompliance with PRN monitoring contracts. On or about January of 2000, the Director of Medical Staff Services at Alachua General Hospital, Gainesville, Florida, referred Dr. Hartke to PRN because the staff that worked with him at the hospital complained about Dr. Hartke's smelling of alcohol, walking unsteadily, and being a disruptive physician while working. As a result of the staff’s complaint, an investigative committee was appointed by the hospital administrator. The committee concluded that Dr. Hartke had a “substance abuse/impairment problem” and the committee recommended that Dr. Hartke contact PRN. On or about January 25, 2000, in response to the information received from Alachua General Hospital, PRN contacted Dr. Hartke and referred him for an evaluation regarding possible alcohol dependency. On or about February 10, 2000, Dr. Hartke underwent evaluation by Anthony P. Albanese, M.D., Co-Medical Director, Addiction Treatment Center, at Mt. Sinai Medical Center, in Miami Beach, Florida. Dr. Albanese’s evaluation of Dr. Hartke included a diagnosis of “alcohol related disorder, not otherwise specified, and adjustment disorder with mixed disturbance of emotion and conduct.” Dr. Albanese recommended that Dr. Hartke abstain from alcohol and establish a PRN contract. On March 1, 2000, Dr. Hartke signed a modified PRN contract in which he agreed to: a) submit to random urine drug or blood screens; b) abstain from any use of drugs or alcohol; and c) attend a PRN monitored professional support group. On or about April 27, 2000, PRN staff was notified by a local PRN group monitor that Dr. Hartke appeared to be intoxicated at the meeting the previous evening. PRN staff contacted Dr. Hartke, requested that he refrain from practice, and undergo re-evaluation. On May 3, 2000, Dr. Hartke presented to Dr. Albanese again for evaluation. Dr. Albanese revised his original diagnosis to Alcohol Abuse. Dr. Albanese also suggested that Dr. Hartke obtain residential treatment. From May 8, 2000 to May 26, 2000, Dr. Hartke underwent and completed residential treatment at Mt. Sinai Medical Center, in Miami Beach, Florida. Following Dr. Hartke’s completion of residential treatment, he transitioned to outpatient treatment with Richey and Associates, in Gainesville, Florida. On June 14, 2000, Dr. Hartke signed a PRN monitoring contract. The PRN contract provided that Dr. Hartke would: a) submit to random urine drug or blood screens; b) abstain from any use of drugs or alcohol; c) attend Alcoholics or Narcotics Anonymous meetings two times a week; d) participate in continuing care group therapy three times a week; e) attend a 12-step program for recovering professionals; f) agree to intensive outpatient treatment two times per week; g) notify PRN of the use of any drugs or alcohol; h) notify PRN of any changes in address; i) contact the PRN office by phone on a monthly basis; j) provide appropriate release forms for urine screen results, treatment center records, therapist reports, and other written and verbal information required to comply and in compliance with the above requirements; and k) to withdraw from practice for evaluation at the request of PRN if any problem develops. Upon receiving several reports from hospital office staff that they believed that Dr. Hartke continued to drink alcohol, PRN increased the urine drug screen frequency, including back-to-back urine drug screens on September 7 and September 8. Both screens were negative. On or about September 25, 2000, PRN received written notification from a physician colleague and office staff that Dr. Hartke had relapsed and that he had a “slip” in his abstention from alcohol. PRN notified Dr. Harke that he must withdraw from practice and undergo re-evaluation. On or about September 27, 2000, Dr. Hartke presented to Kenneth Thompson, M.D., Gainesville, Florida, a board- approved provider. Dr. Thompson concluded that Dr. Hartke was in need of residential treatment again in order to ensure the safety of his patients. Dr. Hartke was notified of Dr. Thompson’s conclusion and recommendation. Dr. Hartke was given several choices of acceptable treatment facilities. On October 5, 2000, Dr. Hartke attended a PRN group meeting and the physician leader smelled a strong odor of alcohol on Dr. Hartke. Because Dr. Hartke failed to make a choice of approved programs for treatment, PRN notified him by telephone that he had until October 11, 2000, to enter a treatment program. On or about October 17, 2000, Dr. Pomm, Executive Director of PRN, sent a certified letter to Dr. Hartke notifying him that PRN was referring his case to the Agency because of his failure to enter residential treatment with a board-approved provider pursuant to the recommendations of Dr. Thompson. On or about October 17, 2000, Dr. Pomm, Executive Director of PRN, sent a letter to AHCA stating that due to the fact that Dr. Hartke suffers from Alcoholism, is in need of further treatment, and has failed to obtain treatment, it is his opinion that “Dr. Hartke is unsafe to practice his profession with reasonable skill and safety, and is a threat to the public health, safety and welfare.” On or about October 24, 2000, based on the complaint received from PRN, the Agency opened a complaint file and conducted an investigation into the allegations concerning Dr. Hartke’s alleged impairment. Findings of Fact Based on The Evidence of The Record The Department entered an Order of Emergency Suspension of License on December 11, 2000, suspending Respondent's license to practice medicine. Respondent has not practiced medicine by actually seeing patients since October 4, 2000. Since that time, Respondent was observed by colleagues and staff in an intoxicated condition on several occasions. Respondent was observed by office staff to have the odor of alcohol on his breath or person as recently as June 4, 2001. Because of Respondent's failure to demonstrate sobriety or stability, it continues to be the opinion of Drs. Thompson and Pomm that Respondent is not safe to practice medicine with reasonable skill and safety.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED, that the Department of Health, Board of Medicine issue a Final Order imposing a penalty of: an indefinite suspension until Respondent is able to demonstrate ability to practice with reasonable skill and safety followed by probation. DONE AND ENTERED this 17th day of August, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 17th day of August, 2001. COPIES FURNISHED: Bruce Campbell, Esquire Shirley Whitsitt, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Ralph Henry Hartke, Jr., M.D. 1505 Fort Clarke Boulevard, Suite 14-402 Gainesville, Florida 32606 Sam Power, Agency Clerk Agency for Health Care Administration For Knox Building Three, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration For Knox Building Three, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
