Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: GENERAL At all times material to this proceeding, Respondent, Brian A. Lasseter was a licensed physician in the state of Florida, having been issued license number ME 0033303 by the state of Florida. This matter arose as a result of the Petitioner reviewing the hospital records of 14 patients hospitalized and treated by Respondent at Waterman Memorial Hospital (Waterman), Eustis, Florida, between June, 1980 and June, 1983. The Petitioner's experts, Dr. Yelverton and Dr. Marley, did not review Respondent's office records of the patients material to this proceeding prior to testifying. However, both Dr. Yelverton and Dr. Marley reviewed the hospital records prior to testifying. There was no evidence that any of Respondent's patients material to this proceeding complained of Respondent's treatment or lack of treatment, or Respondent's failure to correct the medical problem presented by the patient through the surgery performed by Respondent. The Respondent used what he described as the "open-technique" in all transabdominal hysterectomies (TAH) performed on the patients material to this proceeding. There was sufficient evidence to show that by using the "open- technique" the Respondent was able to make certain anterior and posterior vaginal repair, such as correcting a mild to moderate cystocele (a hernia of the urinary bladder into the vagina), to help a rectocele (a hernia protrusion of the rectum into the vagina), to a mild degree, to correct stress urinary incontinence (SUI)(inability to control urine when coughing, sneezing, etc.), and to help suspend other prolapsed tissue. The Respondent learned the "open-technique" procedure from doctors who were practicing at the Orlando Regional Medical Center while Respondent was in training there. Neither Dr. Marley nor Dr. Yelverton were familiar with the "open- technique" and had not had that procedure described to them by the Respondent. There was insufficient evidence to show that the use of the "open- technique" as a procedure to be used concurrently with a TAH to correct certain anterior or posterior vaginal repair, to correct SUI and to help suspend other prolapsed tissue was practicing medicine below acceptable medical standards as is contemplated by Section 458.331(1)(t), Florida Statutes (1979). Patient, K. G. W. Medical Record No. 03-53-61 K. G. W. was one of Respondent's female patients, born September 14, 1946, upon whom Respondent performed a bilateral tubal ligation (BTL) on January 8, 1981. On April 9, 1982, K. G. W. visited Respondent's office for a routine examination. The examination revealed a cervical polyp. Dilatation and curettage (D&C) and polypectomy procedures were performed on K. G. W. by the Respondent on April 23, 1982 in Waterman. A sample of tissue from the uterus was sent to the pathology laboratory for testing. The results of the tests revealed the presence of trophoblastic activity (tissue). Trophoblastic tissue is the pathological term for products of conception or placental tissue. The significance of the trophoblastic tissue being present in this patient is that most likely she had conceived, notwithstanding the previous BTL, and had suffered a miscarriage. Neither the BTL procedure performed on January 8, 1981, nor the D & C/polypectomy procedure performed on April 23, 1982, are in contention in this proceeding. On April 27, 1982, K. G. W. had a follow-up office visit with the Respondent concerning the operation performed on April 23, 1982. Respondent explained to K.G.W. and her husband during this visit that she had conceived, notwithstanding the BTL, and had miscarried. He further explained the presence of trophoblastic tissue and the diagnosis of possible trophoblastic disease. The Respondent's office notes concerning this visit indicate the presence of trophoblastic activity with this patient for the previous 2 1/2 years. Apparently this was the basis for Respondent's diagnosis of possible trophoblastic disease since no further testing was performed until the patient's admission to Waterman on April 12, 1982. Based on her discussion with the Respondent, the patient (with husband's approval) consented to a TAH to prevent conception in the event of a failed BTL and to control possible trophoblastic disease. K. G. W. was admitted to Waterman on May 11, 1982 by Respondent and scheduled for a TAH and posterior vaginal repair on May 12, 1982. Respondent performed the TAH using the "open-technique" on May 12, 1982 and made the necessary posterior vaginal repair. The admitting, preoperative, postoperative and final diagnosis was trophoblastic disease. Trophoblastic disease is a condition where placental tissue becomes abnormal and can develop either a malignant process called a hydatidiform mole or a choriocarcinoma. A choriocarcinoma is a malignant process that can be fatal. Where trophoblastic disease is suspected in a patient, as Respondent suspected in this patient, a test known as H.G.C. Titer should be performed serially, usually weekly, to determine whether the hormone qonadotropin chorionic is rising or falling. The hormone qonadotropin chorionic is secreted by the placenta at the time of pregnancy, and the H.G.C. Titer measures the level of this hormone in the bloodstream. In a trophoblastic disease situation where there is a hydatidiform mole or choriocarcinoma developing, the titer will rise in a precipitous fashion to a very high level. An H.C.G Titer was ordered by the Respondent for the patient at the time of her admission on May 12, 1982. The result of this test showing the lowest level of qonadotropin chorionic, meaning a non-pregnant state, was reported to Respondent by Dr. William W. Conner, M.D. on May 14, 1982. Respondent ordered no further testing for the hormone qonadotropin chorionic after May 12, 1982, including the time after the patient's discharge from Waterman. Also the Respondent did not order any testing for the hormone between April 23, 1982, the date of the pathology report showing trophoblastic tissue in the patient, and the time of the test on May 12, 1982, to support his diagnosis of trophoblastic disease. The more prudent approach in this case may have been further testing and evaluation to confirm or rule out trophoblastic disease if Respondent suspected this possibility, even though the patient's records do not support this diagnosis. There is sufficient evidence in this case to show that the Respondent was practicing medicine within acceptable medical standards considering that the patient wanted a hysterectomy to prevent further pregnancies and the potential for troproblastic disease. However, there is insufficient documentation in the patient's records to justify the course of treatment for this patient. Patient E. A. K., Medical Record No. 03-13-09 E. A. K. was one of Respondent's female patients born July 22, 1948, with a history of chronic pelvic inflammatory disease (PID). PID is the inflammation of the uterus, fallopian tubes and ovaries. This patient also had a history of tubo-ovarian abscesses. Respondent had been treating this patient since April, 1979. Respondent saw this patient in his office on July 9, 1981, and again on July 13, 1981 when he discussed with the patient a TAH to correct her problem. The patient refused to have her tubes and ovaries removed because she did not want to be on hormones. Respondent advised E. A. K. that he would not remove her tubes and ovaries unless they were infected. This satisfied the patient's concern about having to take hormones. The physical examination revealed the abdomen to be tender in lower quadrants, otherwise negative, and an enlarged uterus that was antiflexed, tender to touch with some fullness noted in the adnexa. Respondent's impression was chronic PID with a plan for TAH, possible unilateral salpingectomy and oophorectomy (US-O). On July 21, 1981, the patient was admitted to Waterman. The preoperative diagnosis by Respondent was chronic PID and Dysfunctional Uterine Bleeding (DUB), whereas the Operating Room Case record shows only DUB as the preoperative and postoperative diagnosis. The Clinical Summary shows the final diagnosis as chronic PID but not DUB. The discharge summary shows neither chronic PID nor DUB as a diagnosis. The Respondent performed a TAH and lysis of adhesions on July 22, 1981, but did not perform a US-0. Although the Respondent did not remove the patient's tubes and ovaries because they were not infected, there is nothing in the patient's records to confirm the condition of the tubes and ovaries at the time the Respondent performed the surgery. The hospital notes indicate that adhesions were on the uterus, that these adhesions were removed without difficulty, and the uterus removed from the abdominal cavity using the "open technique". There is insufficient documentation in the patient's records to justify the course of treatment that Respondent chose for this patient. Patient L. L. M., Medical Records No. 03-87-53 L. L. M. was one of Respondent's female patients born August 3, 1930, with no previous significant gynecological problems who was admitted to Waterman by Respondent on January 5, 1982 with an adnexal mass. A pelvic sonogram was performed which suggested that the mass was an ovarian cyst. Respondent's pelvic examination of the patient did not reveal a frozen pelvic and this being a so called "virgin belly" (no previous operations) there was no reason to consider there would be difficulty with adhesions in removing the uterus. Respondent elected to go directly to surgery with a plan of performing a TAH and a bilateral salpingo-oophorectomy (BS-O). Upon entering the abdomen, Respondent found the uterus encased in adhesions with the other body organs around it virtually "glued" together making it difficult to work with the adhesions. Respondent performed a frozen section and removed both adnexa. The pathological report indicated "possible endometriosis" but noted "no evidence of endometriosis seen". Endometriosis is where the lining of the uterus, which is endometrium, implants itself outside the uterine cavity but generally is localized and extends in the pelvic cavity. Respondent concluded that the ovarian cysts were endometriosis, which are large, usually painful ovarian cysts that are associated with the disease endometriosis. At this point Respondent decided to remove the ovaries and tubes but not the uterus. This decision was based on the expected complications of removing a uterus that was encased in adhesions and the fact that by removing the tubes and ovaries hormone production was stopped and the endometriosis could be cured if patient was not placed on hormonal therapy for a period of time. Additionally, Respondent felt that there were other medications that could be used to alleviate menopausal symptom. Respondent's postoperative treatment of this patient supports this decision. Respondent did not perform a D&C procedure on this patient. There is sufficient evidence to show that the documentation in the patient's records justify the course of treatment of this patient and that Respondent's treatment of this patient was within acceptable medical standards. Patient, G. M. S., Medical Records No. 01-82-88 G. M. S. was one of Respondent's female patients, born June 30, 1896, who suffered from a condition known as procidentia, which is complete prolapse of the uterus. G. M. S. had suffered from this condition for a number of years and had developed complications associated with the condition. G. M. S. had previously suffered a stroke and this, along with her age, would indicate the necessity to employ conservative procedures to correct her problem. Although there is sufficient evidence in the record that conservative procedures, such as a pessary (a device worn in the vagina to support the uterus), had been employed by G. M. S.'s previous physician, the patient's records did not reflect what conservative procedures were offered to the patient by her previous physician. The patient and her family were advised of the risks involved in the surgical procedure proposed by the Respondent, but because of the problems the patient was having, the family and the patient elected to go with the surgical procedures proposed by the Respondent. Respondent admitted G. M. S. to Waterman on June 15, 1980 with a diagnosis of prolapsed uterus where he performed a TAH and a BS-O. There is sufficient evidence in the record to show that conservative procedures had been employed on this patient without success, and even considering the patient's age and previous stroke, performing a hysterectomy on this patient would be within acceptable medical standards. While a vaginal hysterectomy (VH) may have been the ideal procedure for this patient (due to age and previous stroke), performing a TAH on this patient would be within acceptable medical standards considering the possibility of adhesions from previous gall bladder operation. Patient, J. M. J., Medical Records No. 03-35-38 J. M. J. was born on November 9, 1907 and suffered from a procidentia (complete prolapse of uterus). J. M. J. was admitted to Waterman on January 19, 1982 by a physician other than Respondent but was seen in consultation by Respondent for a prolapsed uterus. On January 20, Respondent performed a TAH on J. M. J. using the "open technique". Although the history and physical examination records of this patient are brief and the records as a whole could have been better, they are sufficient to justify Respondent's course of treatment for this patient, as indicated by Dr. Yelverton's testimony. Respondent chose to perform a TAH rather than a VH because of prior ovarian surgery and the potential for danger due to the likelihood of adhesions being present. There was no evidence to show that performing a TAH on this patient would be practicing medicine below acceptable medical standards unless there was a failure to concurrently make the appropriate vaginal repair of other prolapsed tissue. There was sufficient evidence in the record to show that Respondent concurrently with the TAH made the appropriate vaginal repair. There was insufficient evidence to show that the documentation of the patient's records failed to justify the course of treatment for this patient. Patient D. M. S., Medical Records No. 02-47-14 D. M. S. was one of Respondent's female patients born July 7, 1950, who Respondent described as having a medical history of uterine prolapse, DUB, pelvic pain, dyspareunia (pain during sexual intercourse) and SUI. Since SUI can be mistaken for other bladder problems there are certain tests that should be undertaken to confirm SUI and to the degree. Respondent performed the necessary test in this office (although not sufficiently documented in the patient's records) to determine that the patient had a mild degree of SUI. The patient's records do not describe any tests that were taken to appropriately evaluate the SUI. There was no documentation that Respondent's findings were inconsistent with SUI. The patient's medical history and physical examination records are extremely brief. On January 18, 1983, Respondent admitted this patient to Waterman with an admitting diagnosis of uterine prolapse and DUB. On January 19, 1983 Respondent performed a TAH using what he characterizes as his "open technique". There was no evidence to show that performing a TAH on this patient would be practicing medicine below acceptable medical standards unless there was a failure to concurrently make the appropriate vaginal repair of other prolapsed tissue, including the failure to correct SUI, if SUI was a problem. There was sufficient evidence in the record to show that Respondent concurrently with the TAH made the appropriate vaginal repair and corrected the mild degree of SUI. The patient's records failed to document whether the Respondent performed any test on the patient to determine the presence of SUI, or whether he appropriately evaluated the condition to determine if surgery was required for the SUI and, if so, whether it was corrected by surgery. However, there was sufficient documentation in the patient's records to justify the course of treatment for this patient. Patient G. M. M., Medical Records No. 03-43-34 G. M. M. was one of Respondent's female patients born May 15, 1925 who Respondent described as complaining of spotting between her menses, dyspareunia, loss of urine when she laughed or coughed and feels that her "bottom" is falling out. Patient was also being treated by another physician for heart disease. The patient's records fail to document whether Respondent performed an appropriate preoperative work-up on the patient. The physical examination does not confirm the presence or absence of a significant prolapse of the uterus other than a second degree and does not describe the presence or absence of the usually associated cystoceles and rectoceles. The operative procedure is very brief. Although there was sufficient evidence to show that Respondent performed a test in his office to confirm SUI, there is no documentation in the records of any tests being performed to confirm SUI or to appropriately evaluate the condition to determine if surgery was required and, if so, how the SUI was to be corrected. On September 11, 1980 the patient was admitted to Waterman by Respondent with an admitting diagnosis of DUB and a second degree uterine prolapse, with a plan to perform a TAH using the "open technique" and a US-0. On September 12, 1980, the day of the operation, upon entry into the abdominal cavity the Respondent discovered extensive adhesions. A US-0 (right ovary being removed) was performed, the uterus freed of the adhesions up to the level of the cervix but because of the adhesions the Respondent decided to perform a supracervical hysterectomy only, meaning that the lower portion of the uterus (cervix) was not removed, with the cervix to be removed later vaginally, if necessary. Normally, extensive adhesions will hold the uterus up and keep it from prolapsing down into the vagina. However, in those instances where the adhesions push the uterus down into the vagina, and the cervix is not removed during surgery, then unless the cervix is suspended by a surgical procedure the patient continues to suffer from uterine prolapse. There is no documentation in the records to show that Respondent performed any surgical procedure on this patient to suspend the cervix and correct the uterine prolapse. However, there was sufficient evidence in the record that Respondent's procedure did correct the uterine prolapse and the SUI complained by the patient. Normally with a patient of this age who is spotting between menses, a physician would suspect endometrical carcinoma which would suggest evaluation of the patient by biopsy of the uterus or a D & C. Due to the patient's heart condition it was determined that she should not be "under" any longer than necessary. Taking this into consideration along with the time required to do the evaluation, the Respondent made a decision not to perform the evaluation. However, Respondent did explore the abdominal cavity for the presence of cancer during the operation, and this exploration did not give Respondent any reason to suspect cancer. There is sufficient evidence to show that Respondent was practicing medicine within acceptable medical standards notwithstanding the failure to remove the cervix. There is insufficient documentation in the patient's records to justify the course of treatment for this patient. Patient G. R., Medical Records No. 04-36-70 G. R. was one of Respondent's female patients born on May 30, 1939, who Respondent described as having a medical history of urinary prolapse, pain, tenderness, dyspareunia, and SUI. The patient was referred to Respondent by another physician. Respondent in describing the present illness refers to a prior tubal ligation but the past medical history reflects no prior operation. G. R. was admitted to Waterman on April 19, 1983, with a preoperative, postoperative and final diagnosis of uterine prolapse. On April 20, 1983, Respondent performed a TAH and BS-O on the patient using what has previously been described as his "open technique". Respondent chose a TAH as opposed to a VH because of a previous tubal ligation and the possibility of pelvic infection and adhesions as evidenced by the degree of pain experienced by the patient and an enlarged uterus, all of which were confirmed by the pathology report. There was insufficient evidence to show that in using the "open technique" procedure concurrently with performing the TAH that Respondent had failed to correct the uterine prolapse as well as the SUI, the complaint presented by the patient. There was insufficient evidence to show that Respondent in this case was practicing medicine below acceptable standards. The patient's records fail to document whether Respondent performed an appropriate preoperative work-up on the patient. The physical examination does not confirm the presence or absence of a significant prolapse of the uterus other than a second degree, prolapsed down to level of the introitus and does not describe the presence or absence of the usually associated rectocele and cystocele. The operative procedure is very brief. While the evidence in this case supports the Respondent's treatment of this patient, he has failed to document in the records justification for his course of treatment. PATIENT J. L. S., Medical Records No. 03-92-49 J. L. S. was one of Respondent's female patients born October 23, 1945, who Respondent described as complaining of dyspareunia and SUI and desiring some form of definitive birth control. Upon examination it was found that the patient had a second degree uterine prolapse, uterus retroflexion but no adnexal masses palpable. Respondent's diagnosis was dyspareunia, SUI and uterine prolapse. Although the presence of a cystocele is noted in present illness, no mention is made of the cystocele in the physical examination. No mention of the presence or absence of a rectocele is made in the physical examination. J. L. S. was admitted to Waterman on February 16, 1982 by Respondent with an admitting diagnosis of prolapse, dyspareunia and a preoperative and postoperative diagnosis of uterine prolapse and pelvic pain. On February 17, 1982 the Respondent performed a TAH with left salpingectomy (US-0) on the patient using the "open-technique". The final diagnosis was uterine prolapse and SUI. The patient's records fail to document whether or not a preoperative evaluation for SUI was done. Other than documenting that he used the "open- technique" there is no description of the correction of the cystocele or the SUI. There was insufficient evidence to show that using the "open- technique" procedure concurrently with performing the TAH that Respondent had failed to correct the uterine prolapse as well as the cytocele and SUI. There was insufficient evidence to show that Respondent in this case was practicing medicine below acceptable standards. While the evidence in this case supports Respondent's treatment of the patient, he has failed to document in the records justification for his treatment of the patient. Patient J. J. A., Medical Records No. 01-37-65 The Petitioner did not allege that Respondent's treatment of this patient was below acceptable medical standards. J. J. A. was admitted to Waterman on June 18, 1980 by Respondent with an admitting diagnosis of endometrial polyps and dysfunctional uterine bleeding. Both the preoperative and postoperative diagnosis was endometrial polys, dysfunctional uterine bleeding and menorrhagia. The Respondent's final diagnosis was adenonyosis and while the pathology report indicates an enlarged uterus and polypoid endometrium there is no specific diagnosis of adenomgosis in the pathology report. Although the Respondent's records in this case are not the best, there was sufficient evidence to show that they justified the Respondent's treatment of this patient notwithstanding the fact that he listed adenonyosis on the final diagnosis. Patient D. L. C., Medical Records No. 01-98-39 D. L. C. was one of Respondent's female patients born January 4, 1957, who Respondent describes as presenting complaints of heaviness, dyspareunia (to such a degree that she can longer have sex), always tired, and continually getting discharges without relief. Patient has history of SUI. On examination it was discovered that her uterus was prolapsed, second degree, and twice its normal size. Respondent's impression after examination was SUI, uterine prolapse, and enlarged uterus with a plan for TAH, possible US-0 and anterior and posterior repair. Respondent admitted patient to Waterman on May 24, 1983 with an admitting diagnosis of enlarged uterus and uterine prolapse. Both the preoperative and postoperative diagnosis was uterine prolapse, cytocele and rectocele. On May 24, 1983, the Respondent performed a TAH, US-0 and anterior suspension. Although Respondent's discharge summary indicates that he performed a BS-0 and posterior repair, this was not done, and it was Respondent's error showing that it was done. While a rectocele can only be properly repaired vaginally, a mild to moderate cystocele may be properly repaired abdominally. There was sufficient evidence to show that the anterior suspension performed by Respondent repaired the cystocele and that the diagnosis of a rectocele by Respondent was incorrect, and no repair was needed. While further testing may have been the prudent approach for this patient, there is sufficient evidence to show that Respondent's decision to perform a TAH on this patient was practicing within acceptable medical standards, considering that the patient was desirous of solving her problem with a hysterectomy after having alternative solutions explained to her. Because the patient's medical history, physical examination, the operative notes and discharge summary are very brief and do not adequately describe the patient's condition and present several inconsistencies as to what the actual diagnosis and physical findings were, the records do not justify the course of treatment that this patient received. Patient E. E. W., Medical Records No. 02-37-74 E. E. W. is one of Respondent's female patients born October 20, 1949, who Respondent describes as presenting a complaint of dysfunctional uterine bleeding that has not been relieved by two previous D&C, the last performed by Respondent and the first performed by her previous physician. Upon examination the Respondent found an enlarged uterus that was antiflexed. Respondent's impression was dysfunctional bleeding with a plan for a TAH. Patient was admitted to Waterman on May 4, 1982 with the admitting diagnosis of dysfunctional uterine bleeding. Both the preoperative and postoperative diagnosis was dysfunctional uterine bleeding. The circulator nurse describes the procedures as a supracervical abdominal hysterectomy. The pathology report indicates a uterus without a cervix. However, further in the pathology report it refers to the cervix which indicated the presence of the cervix. The Anesthesiologist refers to the procedure as an abdominal hysterectomy in the anesthesia record. The Respondent described the procedure as a TAH. There is sufficient evidence to show that the Respondent performed a TAH on this patient notwithstanding the confusion created by the circulator nurse's description of the procedure or the confusion created by the pathology report. While there may be some inconsistencies between Respondent's records and the operating room case record, filed by the circulator nurse, and the pathology report, there is sufficient evidence to show that the records justify the course of treatment given this patient by Respondent. Patient S. J. M., Medical Records No. 04-33-93 S. J. M. was one of Respondent's female patients born October 7, 1955 (approximately 27 years old at time of treatment) who Respondent describes as presenting a complaint of severe lower quadrant pain. This pain has persisted for many years and is getting worse. Patient feels as if she is carrying weight and like her bottom is "falling out". Patient has been treated with antibiotics and pain medication. Patient has been treated for PID. Upon examination Respondent's impression was a second degree uterine prolapse and that tubes and ovaries were normal size. Notwithstanding Respondent's impression that the tubes and ovaries were of normal size and that the procedure would be sterilizing, the patient elected surgery because of the severe pain she was experiencing. Patient was admitted to Waterman and scheduled for a TAH and possible US-0, depending upon findings at time of surgery. On March 30, 1983 Respondent performed a TAH using the "open technique". The admitting diagnosis was uterine prolapse and chronic PID. Both the preoperative and postoperative diagnosis was DUB and uterine prolapse as was the final diagnosis. There is no explanation as to why chronic PID appeared as a diagnosis. There is no explanation in the patient's records as to why Respondent did no further diagnostic testing of this patient such as a diagnostic laparoscopy, commonly referred to as "belly button surgery, where you take a "look-see" inside or a D&C since DUB was indicated, before performing a TAH on a 27 year old female. There was sufficient evidence in the record to show that the pain was caused by the prolapsed uterus and that although further diagnostic testing may have been prudent, failure to do so did not result in practicing medicine below acceptable standards when considering the patient's desire to have a hysterectomy and be rid of pain and her refusal to have a D&C. There is no evidence in the record to show that the patient's problem was not corrected by the TAH. There was sufficient evidence in the record to show the Respondent was practicing within acceptable medical standards. However, the inconsistencies and the lack of information in the records, result in the records failing to justify the course of treatment for this patient, even considering the addendum prepared several months after the operation as a replacement for the physical and history dictated earlier by the Respondent which was apparently lost by the hospital. Patient A. R. S., Medical Records No. 03-69-54 A. R. S. was one of Respondent's female patients born September 15, 1915 who Respondent, upon examination, describes as presenting a third degree uterine prolapse with cervix visible at the introitus. Respondent noted some cervicitis and atrophy of the vaginal mucosa. The plan for patient was a TAH and BS-O. Patient was admitted to Waterman on June 23, 1981 and Respondent performed a TAH and BS-O on June 24, 1981 using the "open technique". Postoperatively the patient developed persistent bleeding from the vaginal cuff and was taken back to operating room where Respondent did a suture ligation of the vaginal cuff bleeder. In performing the suture ligation of the vaginal cuff bleeder, the suture caught the bowel in two points in mid ileum causing a small obstruction of the bowel. There was no looping of the bowel by the suture. Nor was there any evidence of mucosal tears. A surgeon was called in and the obstruction of the bowel removed by cutting the suture and the serosa repaired. The patient continued to experience some problem but within a few days was released. There is insufficient evidence to show that Respondent was practicing medicine below acceptable medical standards when he performed the TAH and BS-O or when he inadvertently "nicked" the bowel loop in two places causing an obstruction when suturing off the vaginal cuff bleeder. The admitting, preoperative and postoperative diagnosis was third degree uterine prolapse. The final diagnosis was third degree uterine prolapse. The final diagnosis was third degree uterine prolapse, small bowel obstruction, leiomyoma of the uterus and urinary tract infection. There is sufficient evidence to show that Respondent corrected patient's initial problem when he performed the TAH using the "open technique" and the BS-O. While the documentation in the patient's records is brief, there is sufficient evidence to show justification for the course of treatment of this patient. Respondent left his practice in Eustis, Florida in 1984 and no longer practices obstetrics on gynecology. Since 1984 Respondent has completed residency training in preventive medicine and public health and is in the process of writing his thesis for a masters degree in Public Health at the University of Miami. Respondent is presently working in ambulatory care centers doing some primary care but mostly cuts, bruise, sore throats, etc. (walk-ins). There was no evidence of any previous complaints against Respondent or any malpractice judgments entered against him. There was no evidence that any patient material to this proceeding was exposed to any injury or potential injury or that any patient was ever harmed by Respondent's treatment. There was no evidence to show that Respondent's treatment of any patient material to this proceeding was for the sole purpose of financial benefit. There was no evidence to show any prior offense by Respondent or any prior disciplinary history. 126 There is sufficient evidence to show that Respondent kept the necessary patient records in each case, but the records were insufficient to justify the course of treatment in some instances.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and Rule 21M- 20.001, Florida Administrative Code, Disciplinary Guidelines, it is, therefore, RECOMMENDED that the Board enter a Final Order finding Respondent, David A. Lasseter, M.D., guilty of violating Section 458.331(1)(n), Florida Statutes (1979), now Section 458.331(1)(m), Florida Statutes (1987), and for such violation impose an administrative fine of $1,000.00 and suspend his license to practice medicine for a period of one year, stay the suspension, and place the Respondent on probation for a period of two years with conditions the Board deems appropriate, including, but not limited to, continuing education in record keeping and restrictions on the practice of gynecology. It is further RECOMMENDED that Count I and Count III of the Administrative Complaint be DISMISSED. DONE AND ENTERED this 15th day of February, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearing this 15th day of February, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 87-0893 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-2. Adopted in Findings of Fact 1 and 2, respectively. 3.-11. These paragraphs contain a discussion of what documentation should be contained in a patient's records and where facts are stated they have been covered in the Findings of Fact under individual patients in the Recommended Order, otherwise they have been rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 12.-17. (Patient No. 03-53-61). Adopted in Findings of Fact 10 through 18, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 18.-28. (Patient No. 03-13-09). Adopted in Findings of Fact 19 through 24, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 29.-33. (Patient No. 03-87-63). Adopted in Findings of Fact 25 through 35, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 34.-38. (Patient No. 01-82-88). Adopted in Findings of Fact 36 through 41, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 39.-44. (Patient No. 03-35-38). Adopted in Findings of Fact 42 through 48, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 45.-50. (Patient No. 02-47-14). Adopted in Findings of Fact 49 through 53, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 51.-61. (Patient No. 03-43-34). Adopted in Findings of Fact 54 through 62, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 62.-65. (Patient No. 04-36-70). Adopted in Findings of Fact 63 through 69, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 66.-70. (Patient No. 03-92-49). Adopted in Findings of Fact 70 through 79, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. *71. (Patient No. 01-37-65). Adopted in Findings of Fact 80 through 83, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. *71-80. (Patient No. 01-98-39). Adopted in Findings of Fact 84 through 90, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 81.-85. (Patient No. 02-37-74). Adopted in Findings of Fact 91 through 99, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 86.-95. (Patient No. 04-33-93). Adopted in Findings of Fact 100 through 108, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 96.-105. (Patient No. 03-69-54). Adopted by Findings of Fact 109 through 118, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. *There were two (2) paragraphs numbered 71. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent Covered in the Preliminary Statement since Petitioner had dismissed Count III at the hearing. Adopted in Finding of Fact 1. Adopted in Findings of Fact 122 and 125, as modified. 4.-5. Adopted in Finding of Fact 3, as modified, otherwise rejected as immaterial or irrelevant or unnecessary or subordinate. The balance of Respondent's "Findings of Fact" are listed alphabetically "A" through "N" which cover each patient material to this proceeding. Generally, the Respondent "findings" are restatements of testimony or restatements of allegations made my Petitioner or discusses what the experts may have agreed upon without stating the facts. However, where possible I have treated them as statement of facts and have responded to them in numbered paragraphs under each patient in the same order as Respondent. Where these facts have not been adopted they were rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. COPIES FURNISHED: Dorothy Faircloth Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Kenneth Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0750 Jack M. Larkin, Esquire 806 Jackson Street Tampa, Florida 33602 Salvatore A. Carpino, Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609 Stephanie A. Daniel Chief Medical Attorney Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Petitioner is entitled to an award of attorney’s fees and costs pursuant to Section 57.111, Florida Statutes (2007).1
Findings Of Fact On November 2, 2006, the Department filed with the Board of Medicine a one-count Administrative Complaint against Dr. Thompson, alleging that Dr. Thompson violated Subsection 458.331(1)(t), Florida Statutes (2003). The Administrative Complaint was based on a probable cause finding by the Probable Cause Panel of the Board of Medicine (Panel) on October 27, 2006. The Panel included two physicians. Prior to the meeting of the Panel on October 27, 2006, the members of the Panel received the following materials on the cases to be considered: “the complete case files, including any patient medical records, expert opinions, if any, any materials supplied by the licensee or their counsel” and a draft of the Administrative Complaint. The file on Dr. Thompson included the investigator’s file; the expert opinions of Thomas F. Blake, M.D., F.A.C.S.; Dr. Blake’s curriculum vitae; medical records for the treatment of T.C.; and letters from Bruce M. Stanley, Sr., counsel for Dr. Thompson, along with a draft of the Administrative Complaint. At the Panel meeting, the members indicated that they had received the materials with sufficient time to review and familiarize themselves with the materials. The Panel members did not find any problems with the materials such as missing pages or illegible copies. Additionally, the panel members indicated that they had no conflict of interest or prior knowledge of the cases before them that would make it inappropriate to deliberate and vote on the issues. In the case of Dr. Thompson, the Panel was supplied with expert opinions from Dr. Blake. Dr. Blake was a diplomat certified by the American Board of Obstetrics and Gynecology, a fellow of the American College of Surgeons, and a fellow of the American College of Obstetricians and Gynecologists. By letter dated December 20, 2004, Dr. Blake rendered the following opinion concerning the care provided by Dr. Thompson: Thompson, M.D. fell below the standard of care by abandoning a patient under general anesthesia and leaving the facility to attend to another patient. However, there were no complications or injury to either patient. The potential problem would be that he would unexpectedly be confronted with complications in the delivery. This could detain him for a prolonged period of time and place the patient under anesthesia in jeopardy of having to have the anesthesia discontinued and subjecting her to further risks. By letter dated December 29, 2004, the Department requested clarification on the issue of whether there were any identifiable deficiencies or problems with the medical records that were maintained by Dr. Thompson. Dr. Blake sent an addendum to his report dated January 11, 2005, in which he gave the following opinion: Medical records utilized in the treatment of the patient are complete and justify the treatment. There are no identifiable deficiencies or problems with the medical records maintained by the subject. At the Panel meeting, an attorney for the Department summarized the case against Dr. Thompson as follows: Patient T.C. presented to the surgery center for several gynecological procedures. While T.C. was under general anesthesia, the Respondent physically left the surgery center to attend to another patient in another building. Respondent delivered a baby of that other patient. T.C. was left under the care of a certified registered nurse anesthetist. After returning from delivering the child, Respondent finished the gynecological procedure. The Department is charging a violation of Section 458.331(1)(t), for violation of the applicable standards of care by leaving T.C. for several minutes in the middle of surgery and in between procedures while she was under a general anesthesia, by failing to notify the patient that Respondent had left and by failing to note in the medical record that Respondent had left the building. The Panel members discussed the case against Dr. Thompson during the meeting and voted on the case, finding there was probable cause to believe a violation had occurred. The findings of the Panel resulted in the issuance of the Administrative Complaint. The case was received by the Division of Administrative Hearings on February 8, 2007, for assignment to an Administrative Law Judge to conduct the final hearing. The Department retained another expert, Jose H. Cortes, M.D., F.A.C.O.G, to provide an opinion concerning Dr. Thompson’s actions relating to the treatment of T.C. By letter dated February 27, 2007, Dr. Cortes opined that Dr. Thompson fell below the standard-of-care while attending T.C. by leaving the operating room and going to another building to attend to another patient. Dr. Cortes was also of the opinion that Dr. Thompson did not adequately maintain the medical records for T.C. by the following actions: The departure from the normal course of surgery such as leaving the operating room was not documented by the attending physician, the outpatient establishment nursing staff, nor the anesthesia attending or nurse anesthetist. A signed consent form not available. * * * As the record documents the evaluation of 07/18/03 and 08/05/03 by the Physician Assistant describes the patient’s complaint and ultrasound study review respectively. The blood count presented from 07/18/03 shows a Hemoglobin of 13.6 gms and Hematocrit of 40.1 percent with normal indices, a pelvic ultrasound which documented fibroids of less than 2.1 cm in size each. With the above findings a conservative management strategy is usually employed initially and the patient is followed prior to recommending any surgical procedure unless declined by the patient. However, all of this has to be documented as recommended by the literature and agencies which review patient care and guidelines such as KePRO. On July 10, 2007, the Department filed a motion to amend the Administrative Complaint, which motion was granted by Order dated July 13, 2007. The Amended Administrative Complaint added a count alleging a violation of Subsection 458.331(1)(m), Florida Statutes (2003), alleging that Dr. Thompson: [F]ailed to keep legible medical records justifying the course of treatment by failing to document in T.C.’s medical records that he left the building during the procedures he performed on T.C. on or about September 11, 2003, and/or by failing to document any discussion with T.C. about alternative treatment options such as discontinuing oral contraceptives, a formal dilation and curettage, and/or the use of a Mirena IUD to address T.C.’s problems or concerns. The final hearing was held on July 27, 2007. A Recommended Order was entered on October 31, 2007, recommending that a final order be entered finding that Dr. Thompson did not violate Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes (2003), and dismissing the Amended Administrative Complaint. A Final Order was entered on December 18, 2007, adopting the findings of fact and conclusions of law of the Recommended Order and dismissing the Amended Administrative Complaint against Dr. Thompson. The parties have stipulated to the reasonableness of the fees and costs claimed by Dr. Thompson. Dr. Thompson has incurred $34,851.00 in attorney’s fees and costs. The parties have stipulated that Dr. Thompson is a prevailing small business party and that Respondent is not a nominal party to this action.
The Issue The issues in this case are whether Respondent, a physician specializing in obstetrics and gynecology, committed medical malpractice in delivering a baby and/or failed to maintain medical records justifying the course of the mother's treatment; if so, whether Petitioner should impose discipline on Respondent's medical license within the applicable penalty guidelines or take some other action.
Findings Of Fact At all times relevant to this case, Respondent Mark N. Scheinberg, M.D., was licensed to practice medicine in the state of Florida. He is board-certified in obstetrics and gynecology. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed physicians such as Dr. Scheinberg. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. Here, the Department alleges that Dr. Scheinberg committed two such offenses——namely, medical malpractice and failure to keep records justifying the course of treatment——in connection with the vacuum-assisted vaginal delivery of an infant born to Patient L.G. on February 2, 2005, at West Boca Medical Center. The crux of this case (though not the sole issue) is whether, as the Department contends, the standard of care required Dr. Scheinberg to perform a Caesarean section ("C- section") on L.G. due to the passage of time, instead of allowing her to continue to labor for approximately 13 hours and, ultimately, deliver vaginally. The events giving rise to this dispute began on February 1, 2005, at around 11:00 a.m., when L.G., whose pregnancy was at term, checked into the hospital after having experienced ruptured membranes. At 12:30 p.m. that day, L.G. signed a form bearing the title "Authorization for Medical and/or Surgical Treatment," which manifested her consent to a vaginal delivery or C-section together with, among other things, "such additional operations or procedures as [her physicians might] deem necessary." Immediately above L.G.'s signature on the form is an affirmation: "The above procedures, with their attendant risks, benefits and possible complications and alternatives, have been explained to me " The evidence is not clear as to when, exactly, Dr. Scheinberg first saw L.G., but that fact is unimportant. The medical records reflect that at 8:30 p.m. on February 1, 2005, Dr. Scheinberg gave a telephone order to initiate an IV push of the antibiotic Ampicillin; therefore, he had taken charge of L.G.'s care by that time. The nurses' notes indicate that at 10:00 p.m., L.G.'s cervix had dilated to "rim" or approximately nine centimeters—— meaning that the dilation was complete, or nearly so. At this time, and throughout the duration of L.G.'s labor, an external fetal heart monitor was in place to detect and record the baby's heartbeats and the mother's uterine contractions. An intrauterine pressure catheter ("IUPC")——a device that precisely measures the force of uterine contractions——was not inserted into L.G.'s uterus at any time during this event. The Department argues (although it did not allege in the Complaint) that, at some point during L.G.'s labor, the standard of care required Dr. Scheinberg either to place an IUPC or perform a C-section. Pet. Prop. Rec. Order at 10, ¶36. The Department's expert witness, Dr. John Busowski, testified unequivocally and unconditionally, however, that the standard of care does not require the use of an IUPC. T. 36. The undersigned credits this evidence and finds that Dr. Scheinberg's nonuse of an IUPC did not breach the standard of care. Dr. Scheinberg conducted a physical at around 2:00 a.m. on February 2, 2005, which included taking L.G.'s complete history and performing a vaginal examination. L.G.'s cervix remained dilated to approximately nine centimeters, and her labor had not substantially progressed for about four hours. Dr. Scheinberg noted in L.G.'s chart that the baby was in the posterior position at 2:00 a.m. The Department argues, based on Dr. Busowski's testimony, that as of 2:00 a.m., the standard of care required [Dr. Scheinberg to] choose one of the following options: (1) watch the patient for a few more hours to allow for progress; (2) place an IUPC to determine the adequacy of Patient L.G.'s contractions; (3) start Pitocin without the placement of an IUPC; or (4) perform a C- section. Pet. Prop. Rec. Order at 9-10, ¶ 32. The Department contends that Dr. Scheinberg breached the standard of care by choosing "simply to watch the patient for approximately 10 more hours"—— which was tantamount to "choosing to do nothing." Id. at 10, ¶¶ 33-34. In fact, Dr. Scheinberg chose to watch the patient, which was, according to Dr. Busowski, within the standard of care. Obviously, at 2:00 in the morning on February 2, 2005, Dr. Scheinberg did not choose to wait for 10 more hours, because at that point he (unlike the parties to this litigation) did not know what was about to happen. The nurses' notes reflect that L.G. was under close observation throughout the early morning hours, and that Dr. Scheinberg was following the situation. At 4:30 a.m., L.G. was set up to push and at 4:45 a.m. was pushing well. At 6:15 a.m., the notes indicate that Dr. Scheinberg was aware of the mother's attempts to push. At 6:45 a.m., he reviewed the strips from the fetal heart monitor. At 7:45 a.m., he was present and aware of L.G.'s status. From 7:00 a.m. until 8:00 a.m., no contractions were identifiable on the external monitor. At 8:00 a.m., however, L.G. was comfortable and pushing well. She stopped pushing at 8:30 a.m., but remained comfortable. Dr. Scheinberg then ordered the administration of Pitocin, a medicine which is used to strengthen contractions and hasten delivery. Although the Department faults Dr. Scheinberg for giving L.G. Pitocin at this relatively late stage of her labor, Dr. Busowski (the Department's expert witness) admitted being unable to say "that Dr. Scheinberg should have started Pitocin earlier " T. 72. The Department therefore has no clear evidential basis for second-guessing Dr. Scheinberg's professional judgment in this particular, and neither does the undersigned. At 9:10 a.m., L.G. resumed pushing. The baby's fetal heart tones (heartbeats) were stable. L.G. continued pushing, with her family present, until around 11:00 a.m., at which time Dr. Scheinberg discussed the situation with the patient and her family. Dr. Scheinberg explained to L.G. or her husband the risks of, and alternatives to, performing a vacuum-assisted vaginal delivery. Either L.G. or her husband gave verbal consent to the use of a vacuum device to assist in the delivery. Between 11:00 a.m. and 11:10 a.m., the fetal heart monitor detected some variable decelerations, meaning a decrease in heart rate that could be a sign of fetal distress. Dr. Scheinberg delivered the baby at 11:23 a.m., using a vacuum device to help pull the infant out of the birth canal. In his post-operative notes, Dr. Scheinberg wrote that his "pre-operative diagnosis" was "+3 station — prolonged second stage 2½ hrs." As a "post-operative diagnosis," Dr. Scheinberg recorded, "same + tight cord." He reported the following "findings": "tight cord cut on perineum[;] mec[onium] aspirated on perineum."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Dr. Scheinberg not guilty of the charges set forth in the Complaint. DONE AND ENTERED this 20th day of June, 2011, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 20th day of June, 2011.
The Issue The issue for consideration in this hearing is whether Respondent's license to practice osteopathic medicine in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations herein, the Board of Osteopathic Medicine was the state agency in Florida responsible for the licensing of osteopathic physicians and for the regulation of the practice of osteopathic medicine in this state. By stipulation, the parties agreed that Respondent was, at all times material hereto, a licensed osteopathic physician in the State of Florida. On May 1, 1990, Patient #1, (R.C.) presented to the Respondent at his office in Orlando for treatment of obesity. At that time, the Respondent, who holds himself out as a specialist in and was determined to be an expert in the field of bariatric medicine, (weight control), had the weight, blood pressure and pulse rate of the patient taken, and other measurements made. At that time, the patient was 6'2" tall and weighed 196 pounds. His blood pressure was 124 over 76, and his pulse rate was 70. He had a waist measurement of 38 1/2" and a hip measurement of 40". As a part of the case history taken of the patient, it appeared that he had no significant matters to report except for the fact that he had periodic shortness of breath and members of his family had had both high blood pressure and heart trouble. There were no other contraindications to treatment. Respondent conducted an examination of the patient and determined that the patient had had liposuction in the stomach area and breasts approximately one year previously, and that he got little exercise, yet smoked 2 1/2 packs of cigarettes per day. He was a reformed alcoholic and felt he was in good general health. Respondent's evaluation of the patient at the time was that he appeared to look well. The medical records reflect the word, "CORPUL", which is an acronym for cardiac/pulmonary, and in connection therewith, Respondent noted that the patient's condition was "excellent." As a part of his initial work up, the Respondent drew blood from the patient which was forwarded to a laboratory for analysis, and he also did a cardiogram. Though the cardiogram appeared "grossly normal" there was some minor irregularity which the Respondent felt necessitated further evaluation. Therefore, the cardiogram was sent to a cardiologist, Dr. Arnold, for evaluation. The report of the cardiologist indicated that the cardiogram was essentially normal with a "PR" interval at the upper limit of normal. Before the report was returned by the cardiologist, Respondent prescribed certain medications for this patient. Because the patient had high sodium levels in his blood, the Respondent prescribed a diuretic. He also prescribed Thyroglobulin, a specialized form of thyroid medication to aid the patient's metabolism mildly and safely. In addition, he prescribed 30 mg of Obazine per day to be taken in the morning as an appetite supressant; potassium chloride for extra potassium; and Phentermine, another appetite supressant to be taken in the afternoon. For after supper medication, Respondent prescribed a medication for digestion and to increase bile flow, and a 1/2 gram of Phenobarbitol to relax the patient in order to reduce his habit of snacking, and provided a detoxifying agent for the liver. These were the only drugs prescribed at that time. Respondent also, however, instructed the patient that he must not have any further liposuction. In the opinion of Dr. Weiss, the Board's expert in the field of bariatric medicine, the use of the secretary to transcribe the Respondent's verbal comments regarding his patients into the record is not inappropriate. However, the use of the word, "CORPUL" followed by the word, "excellent" seems to fall somewhat below standard, in his opinion. In this case, an acceptable standard would be for the physician to put into the chart exactly the details of the evaluation, and the word, "excellent" does not say much. Notwithstanding the fact that records show the patient's pulse rate and blood pressure, they did not show that the Respondent palpated the patient's chest or listened to the heartbeat. Therefore, the use of the word, "excellent" in this case is below standard. Respondent's records also include the word, "dispense", followed by several medications which Respondent prescribed for the patient. There was no indication in the record why each of these medications was prescribed. Dr. Weiss concludes this is a deficiency in that the record does not show that the Respondent actually examined the patient before medicating him, even though Respondent indicated he had done so. In fact, the only comment as to the patient's general health is made by the secretary, not by a physician or a nurse. Further, though Respondent indicated at hearing that the patient suffered from emphysema, there is no indication anywhere in the notes that that condition existed. Dr. Weiss also noted that the Respondent prescribed medication for a thyroid condition but there appears, from the medical record kept by the Respondent, no reason to treat a thyroid condition. There is no indication that the patient demonstrated any of the clinical signs of hyperthyroidism. By the same token, a prescription for Phenobarbitol, to be taken in small quantities at the hour of sleep, is well within standards if proper indications for that use are noted. Here, according to Dr. Weiss, in Respondent's records there is no indication as to why the substance was dispensed. Respondent's testimony at hearing provides justification, and there is no challenge to the actual prescription, but the medical record is insufficient in that it fails to show the reason for the dispensing of any of the specific medications prescribed. The Respondent's next contact with his patient was by telephone on May 17, 1990 when the patient indicated that the blue Phenobarbitol tablet was making him feel like he was dying. According to the records, the patient was nervous, "hyped-up" and his chest was tight. The medical note entered by the secretary indicates that she had spoken with the Respondent about the patient and the Respondent said for the patient to take one-half capsule with food. If that worked, the patient could return to a full dose. According to Dr. Weiss, this is "far, far below the standard of care", especially when the patient was, as here, showing signs of cardiac problems in the sense of shortness of breath and tightness in the chest, A prudent physician, according to Dr. Weiss, would have stopped medication entirely, had the patient come to the office, or, if an emergency problem existed, told the patient to go to the hospital by ambulance. This is the case here, especially since the cardiogram report had not been received from the cardiologist. If the Respondent felt either inadequate to interpret the cardiogram or that the cardiogram showed some irregularity, he should not have recommended drugs to the patient, as he did here, which affected the heart. In that regard, Dr. Weiss opines, it is impossible to treat all patients within a standard template or protocol, as it appears Respondent did, since all patients are individuals. On May 14, 1990, the patient again telephoned Respondent's office requesting a list of all medications he was then taking. At that point, the patient indicated he was at a cardiologist's office, (Dr. Latif), and needed to know the name of the drugs he was taking. Respondent's secretary asked the patient if this were an emergency visit, and the patient indicated it was not. Because the patient would not volunteer any information or answer directly any of the questions of the secretary, she suggested that Respondent call him right back at the cardiologist's office and the patient agreed. However, before the Respondent could call back, the patient departed Dr. Latif's office, apparently having decided he could not afford the cardiologist's fee. The patient records reflect, in Respondent's handwriting, that the patient had told him he was at the cardiologist's because the cardiogram was borderline abnormal and he had been worrying about it since it was taken. Respondent's notes on this matter reflect he assured the patient that the cardiologist's report indicated there was no problem. The patient then indicated he felt fine and had gone to Dr. Latif only for a check up. Respondent contends he discussed with the patient his exercise regimen and advised him not to get overheated while on any of the medications he was taking. The entry relating to the May 29, 1990 visit reflects that the patient had lost approximately 10 pounds and his blood pressure was down but his pulse rate was up somewhat. The note indicates that the patient "feels fine and is happy with the Obazine" which Respondent had prescribed for him. By observation, Respondent noted that the patient "looks well" and again, the notation "CORPUL excellent" in Respondent's hand, along with a change of some of the medications administered, is listed in the record with no reason being shown for either the change or the continuation. This is below standard. According to Dr. Weiss, the details rather than the conclusion should be reflected in the records. The next appointment with the patient was on June 29, 1990 when the records reflect the patient had lost weight and his blood pressure remained good, but there was no indication of what his pulse rate was. The records reflect certain changes at the restaurant where the patient was working interfered with his sleep; that he was winning at the dog track and planned to go to Las Vegas; but that he was hungry after exercising in the evening and asked for a stronger pill to take in the morning with breakfast. The patient indicated that the Esidrix 50 mg made his heart race. In response, according to the records in the Respondent's handwriting, Respondent reduced the strength of the Esidrix dose from 50 mg to 25 mg and changed the Phenobarbitol from blue to yellow. According to Dr. Weiss, the secretary's notes contain certain information but not all that is necessary. Weiss noted that the patient requested a stronger appetite supressant even though it is noted that the lighter dose made his heart race. A more prudent physician, in Dr. Weiss' opinion, practicing at the level of standard of care, would have discontinued any medication which made the patient's heart race and would have done a cardiogram or at least would have checked the patient's pulse. Here the record fails to reflect that the pulse rate was taken. If a doctor is made aware of that condition, he should look into it, and there is no indication, from the medical records, that this was done. According to Weiss, this is grossly incorrect. In fact, there is no indication that Respondent even examined the patient before making any change in his medictions, and that, in itself, would be a deviation from standard. Respondent indicates that if he made any entry on a patient's record in his own hand, it was done as a result of an examination of the patient. In this case, however, if respondent did examine the patient, he made no reference in the notes as to why he did what he did nor did he make any record of his rationale or reasoning. This is below standard. When the patient was informed that Respondent would not be able to keep the appointment scheduled for July 17, 1990, he indicated he had changed his schedule and needed a change in the times of taking and the strengths of his medications. When the patient did come in his blood pressure was taken along with his weight but there was no indication he pulse rate was measured, and the medical records in the Respondent's handwriting reveal certain changes to medications which do not show either details of the change or the reason therefor. Again, appetite supressants were dispensed, as was a tension reducer, without any physical examination being reflected in the records. The patient was again seen in the office by Respondent on August 22, 1990, and the records for this visit reflect not only the weight but also the blood pressure reading and the pulse rate. Respondent contends that the entry relating to the pulse is in his handwriting and made as a result of an examination, as is the word "excellent" following the note, "CORPUL" in that entry. According to Dr. Weiss, the secretary noted in the record, and it so appears, that the patient was having problems with his bowels. Nonetheless, the records show no details of any examination as a result of this complaint, notwithstanding Respondent's assertion at hearing that whenever he makes an entry in the record he has examined the patient. On October 1, 1990, even after the patient missed his September 20, 1990 appointment, the Respondent authorized his staff to mail a one month supply of prescription medications to the patient. According to Dr. Weiss, this is not within standards, and the medical record does not show why the drugs were mailed, nor does it say which medications were dispatched this way. Weiss contends one can assume it was the same regimen as previously prescribed, but in his opinion, it is inappropriate to do this in a metropolitan area, and to do so is well below the standard of care. This is so especially in light of the previous racing heart beat, the arrythmia and the patient's physical complaints. From Respondent's comment in the record, "this time only", it would appear Respondent recognized the riskiness of his actions, so Weiss believes. On October 29, 1990, the patient again came to Respondent's office and his weight, blood pressure and pulse rate were taken. The secretary noted no problems and that the patient looked well. Respondent noted in his own hand that the cardiac pulmonary condition was excellent and also noted that the patient might be getting a new restaurant. According to Dr. Weiss, this is meaningless to anyone other than the person who wrote it since there is nothing in the record which indicates what the entry means. When the patient came to the office on November 26, 1990, his weight and blood pressure were taken but there is no indication his pulse rate was measured nor is there any entry on the form for that date in the Respondent's hand. According to Dr. Weiss, the prescription for Xanax, which appears to be in the handwriting of the secretary, showed no indication that the patient was examined or, if he was, any clinical findings or clinical reason for the prescription. Again, on December 26, 1990, the patient was weighed and his blood pressure taken, but no pulse entry was made. Again, there appears to be no entry in the Respondent's hand, including the CORPUL description, which is left blank. From this, it is assumed the Respondent did not see the patient. R.C. missed his scheduled appointment on January 21, 1991, and when he appeared at Respondent's office on February 11, 1991, his blood pressure and his weight were noted, but there was no indication the Respondent saw the patient. In fact, the secretary's note indicates the Respondent approved a one month medication pickup but there is no entry in Respondent's hand. From this it would appear the medications were dispensed without the patient having seen the doctor, and in the opinion of Dr. Weiss, this is incorrect practice and below standard. When the patient came in on April 19, 1991, he was seen by the Respondent; his weight, blood pressure and pulse were taken, and at least one of his medications was changed. On this date, Respondent prescribed a tranquilizer, Tranxene. Again, the record fails to indicate any reason for the prescription of a tranquilizer, especially in light of the fact that the note in the secretary's hand indicates that the patient was in a rush but was feeling good and looked well. The record of the May 15, 1991 visit shows that the patient was weighed and his blood pressure taken, but there is no indication of his pulse rate. The secretary noted that the patient was upset because of his girlfriend's diagnosis of breast cancer. In the Respondent's hand, a notation reflects a prescription for Tranxene again as a result of the patient's nervous condition. According to Weiss, this is the type of entry that should be made routinely, but there is no reference in the record to the patient's cardiac pulmonary status which had been routinely commented upon previously. The records also reflect that on July 21, 1991, without seeing the patient, Respondent prescribed a refill on the Tranxene, and called it in to the pharmacy. At this time, the patient had requested a 60 pill prescription with provision for a refill, but the medical note reflects the Respondent said "No." At hearing, Respondent claimed that his use of the word "no" is indicative of his recognition that the patient had a drug personality. This does not necessarily follow, but in any event, Respondent properly refused to give the patient more than a reasonable dose, and a prescription of 36 Tranxene, as given here, is not below standard. On June 1, 1992, there is an indication that the weight, blood pressure and pulse were taken, and it appears the patient had, over a year, gained approximately 25 pounds, though his blood pressure remained about the same. At this point, the note in the secretary's hand reflects that the patient was starting a new job, was feeling fine physically, and was coming off a three month hiatus between jobs. In the Respondent's hand, however, is a reference to Phenobarbitol white and another drug, CH, which is not identified. According to Dr. Weiss, this was two years since a cardiogram or blood profile had been taken, and to continue to prescribe drugs of this nature without any intervening testing of blood or heart evaluation falls below the appropriate standard of care. In fact, the record does not reflect at this visit that the Respondent evaluated the patient's cardiac condition because his description of the CORPUL status does not appear in the record. On July 7, 1992, according to the records, a telephone call to Respondent's office from the medical examiner of Volusia County indicated R.C. had died on June 17, 1992, and requesting the Respondent's medical records. The autopsy report, dated July 31, 1992, reflects that the cause of death was acute drug intoxication, and Respondent contends that this is justification for his refusal to give the patient all the various medications he wanted. A review of the post mortem toxicology relating to drugs found in the patient's urine and blood at the time of death indicates, however, that none of the drugs which were being prescribed by Respondent were found in the deceased's body on autopsy. Respondent is a longstanding practitioner of osteopathic medicine having been in practice since August, 1954. When R.C. first came to see him, on May 1, 1990, the patient's history was taken and recorded on the history form. The patient was 34 years old and claimed to be in fair health. It appears that the patient had moderate emphysema, and at that point and continuing thereafter, Respondent claims, he tried to get the patient to quit smoking. He did not, however, enter this fact in the patient's records. All other signs, however, were normal, except for the patient's blood which showed elevated levels of lipid concentration and low iron. In short, the patient's triglycerides were elevated and his thyroid levels were moderately low. The patient's cardiogram showed a small abnormality in the computer evaluation which Respondent sent to a cardiologist, Dr. Arnold, for interpretation. After the initial visit, and after giving the patient his standard dietary instructions and policies, the Respondent prescribed the medications previously described. According to Respondent, his normal practice was for the nurse to write down what the patient said while weight was taken and blood pressure measured. Respondent usually took the pulse rate. The term, "excellent", used in conjunction with the word "CORPUL" in the records related to heart function, not to the emphysema. Respondent admits that "perhaps" he should have entered the emphysema in the record. Respondent claims he entered all information regarding changes in prescriptions, yet a review of the records clearly shows this is not the case. Many of the entries in the records, which appear to be in the nurse's handwriting, including such things as the patient's reaction to pills on May 7, 1990, was based on Respondent's conversations with the patient which he thereafter recounted to the nurse to be placed into the records. It would appear, however, that there is some confusion whether the entries other than those placed therein by the Respondent, were by a nurse or by a secretary. This was not clarified by the evidence of record. Respondent admits that he does not keep the detailed records he would keep if he were practicing in a hospital situation. He is of the opinion that he is the only one to whom his records need make sense. Because in this case the patient was a friend of his, his need to make further and more detailed patient notes was even less that it would be ordinarily. He was aware of what he considered to be the patient's drug tendency and did not put it in the patient's record because he did not feel that he wanted to subject a friend to this type of record even though he recognized that medical records are, for the most part, confidential. On several occasions, Respondent admitted it was an omission to fail to place a pulse reading in the record or to fail to make certain comments, but he reiterated time and again, that in his opinion his notes did not have to reflect in any detail reasons or rationale for what he did. He consistently took the position that he knew what he did; that he was the only one who looked at the records; and to him, that was sufficient. On July 29, 1991, medications were dispensed after a telephone conversation with the Patient. Respondent claims this was because he had had an argument with the patient over the number of pills which could be furnished; 36 Tranxene tables as opposed to the 60 tablets requested. Respondent admits he authorized the prescription even though he did not see the patient at that time, and in fact did not see the patient again for almost a year. On June 1, 1992, when he again saw the patient, he refused to treat the patient further without another cardiogram and blood work. Nonetheless, Respondent admits, and the records reflect, that on that particular occasion, he allowed the patient to receive his normal prescription for medications, with some modifications, and he admits that all of these medications dispensed are not listed in the patient record. Respondent also admits he does not, and did not, in this case, dispense medications in a child-proof container, as is required by statute and rule. He claims this was because the patient requested they not be placed in a child-proof container, and introduced an entry on the back of the envelope containing the patient's medical records, bearing what purports to be the patient's signature, which so indicates. Respondent also claims that in a discussion with the chairman of the Board of Pharmacy, he determined that use of a crush-proof box in lieu of a child-proof container for these medications, which are, admittedly, controlled substances, was appropriate. Respondent feels that his care of this patient was within standards and that his prescriptions were dispensed with proper medical justification. He contends that R.C. was a hard patient to deal with, being both compulsive and anal retentive. In treating this patient, Respondent claims he used a modified Weintraub protocol, an accepted guideline for the prescription of appetite suppressants and believes he prescribed appropriate medications in appropriate quantities. Respondent also believes he adequately examined the patient before he prescribed any medications for him and contends he always saw the patient before he allowed him to have any more drugs. This has been shown not to be the case. Respondent agrees that a medical record should justify the course of treatment rendered to a patient. Everything should be justified but not, he claims, in as great a detail as in a hospital setting. Respondent is of the opinion that his records are such that a subsequent treating physician could take them and determine what clinical treatment was rendered to the individual without speaking with the Respondent. In addition to the daily narrative record, Respondent contends that the prescriptions are maintained in the records and should be examined in conjunction with the narrative record. If done, this would show what drugs were prescribed and in what amounts. However, it would not show why the prescription was issued initially, and this information is also not adequately laid out in the narrative records. Respondent claims he writes his chart for himself and not for others. Respondent recognizes he did not note any emphysema in his medical records. He also did not enter any instructions he gave to the patient to quit smoking in the medical records. He did not discuss in the records, or with the patient right away, that the patient should continue to exercise. He admits the records do not show that he reviewed Dr. Arnold's report on the cardiogram but only that he received it, and he admits that the records do not show the patient was retaining fluid in the stomach. In that regard, Respondent had recommended metahydrine, a diuretic, for the patient but he contends the record reflecting the patient had had liposuction also reflects that the patient was retaining fluid, and he believed this was sufficient recognition of that fact. This does not necessarily follow, however. Respondent admits that even a bariatric specialist could have had trouble determining from his records that fluid was in the stomach rather than elsewhere in the body. Respondent's treatment of this patient was evaluated by Dr. Wilmer L. Asher, a specialist in bariatric medicine practicing in Colorado for more than thirty years. In the course of his evaluation, Dr. Asher, who has known Respondent as a bariatric physician through the American Society of Bariatric Physicians for approximately twenty-five years, had the opportunity to evaluate Dr. Weiss' written report, the medical records in this case, the investigative report and Dr. Arnold's cardiographic report. Based on his evaluation of the entire file, Dr. Asher concluded that Respondent provided the patient with an adequate initial work-up, more than that usually done. The use of an electrocardiogram on an individual who had no apparent cardiovascular complaints at the time of work-up was above and beyond the norm. He also concluded that the Respondent's prescription, dispensing and administering legend drugs to this patient was neither inappropriate nor in excessive nor inappropriate quantities. Dr. Asher further concluded that on the basis of the Respondent's initial work-up, the diagnosis of obesity was appropriate and the plan of treatment Respondent developed was appropriate for this patient. He concludes that the medical records kept by the Respondent for this patient justified the course of treatment. There is no mention in the record of risk, but, in Dr. Asher's opinion, the medical management of an obese patient by a prudent bariatrician as Respondent, in Asher's opinion, involved a negligible amount of risk. Bariatricians do not ordinarily discuss risks associated with medical management of obesity. Therefore, he contends, Respondent's failure to do so was not below standard. Based on his thirty years of bariatric practice, Dr. Asher was able to find no evidence of Respondent's failure to meet applicable standards of care in his examinations, his diagnosis and his treatment of this patient. In that regard it should be noted that Dr. Asher admitted he was not specifically familiar with Florida standards but concluded they would, in all probability, be consistent with the medical standards in other states with which he is familiar. On October 29, 1992, the Department conducted an inspection of the Respondent's office because of his license as a dispensing physician. At that time, there were several discrepancies noted, one of which was that the Respondent's license to dispense drugs had expired. Respondent admits that this is the case, and that during the period from January, 1992 through October, 1992, he was not registered as a dispensing physician. He claims that he was under the impression that the renewal was automatic, and when he found it was not and his certificate had expired, he immediately sent in the required fee and the application for recertification, which was granted. It is so found. There were, however, other discrepancies discovered during the October 29, 1992 inspection, and these included a failure to properly label medications for dispensing; the sign indicating the availability of generic substitutes was not properly posted; all controlled substance refills were not properly initialed and dated; controlled substance prescriptions were not being properly maintained and purchase records for controlled substances were not maintained and readily recoverable. A follow-up inspection was conducted on July 13, 1994, and all previously identified discrepancies had been corrected. The inspection was considered to be satisfactory. At the hearing, Petitioner offered no evidence of any prior disciplinary action having been taken against the Respondent by the Board or any other regulatory body. Subsequent to the hearing, however, Petitioner moved the introduction of a record of a previous disciplinary action by the Board, the admission of which Respondent strongly resists. A review of the pleading reveals that the record in issue was missed in the agency's prior search of its records because it was filed under a misspelled name. Examination of the document itself does not indicate the alleged misconduct upon which it is predicated. All that can be discerned from a review of the matter objected to is that in 1987 Respondent entered into a stipulated settlement of another Administrative Complaint filed by the Board and that as a result thereof, Respondent was fined $2,000, reprimanded and placed on probation for two years under conditions dictated by the Board. Evidentiary acceptance of this prior action is granted over Respondent's objection with the understanding that it will not be considered on the disputed issue of the Respondent's guilt or innocence of the matters alleged in the instant Complaint but will be considered only if and after a finding of guilt of any of the misconduct alleged herein has been made, and then only as a matter in aggravation of punishment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Edwin Gettins, D.O. be found guilty of violating Sections 459.015(1)(x)(o)&(g), Florida Statutes, (other than utilizing an improper method of dispensing, for which he should be found not guilty); that he be reprimanded and ordered to pay an administrative fine of $4,000; and that his license to practice osteopathic medicine in Florida be placed on probation for two years under such terms and conditions as may be prescribed by the Board of Osteopathic Medicine. RECOMMENDED this 9th day of November, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-1834 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. - 3. Accepted and incorporated herein. 4. & 5. Accepted and incorporated herein. - 8. Accepted and incorporated herein. Accepted. - 12. Accepted and incorporated herein. 13. & 14. Accepted and incorporated herein. 15. - 25. Accepted and incorporated herein. & 27. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. - 32. Accepted. 33. & 34. Accepted but characterization of records as 35. - 37. "deficient" borders on being a Conclusion of Law. Accepted and incorporated herein. 38. Accepted. 39. Accepted. 40. Accepted. 41. First sentence accepted and incorporated herein. Second sentence accepted. 42. Accepted. 43. - 45. Accepted and incorporated herein. 46. Accepted. 47. Accepted. 48. - 50. Accepted and incorporated herein. 51. Accepted. 52. Accepted. 53. - 56. Accepted and incorporated herein. 57. Accepted. 58. Accepted. 59. - 62. Accepted and incorporated herein. 63. Accepted. 64. Accepted. - 69. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted. - 84. Accepted and incorporated herein. Accepted. - 92. Accepted and incorporated herein. Accepted. - 97. Accepted and incorporated herein. 98. Accepted. 99. Accepted and incorporated herein. 100. Accepted. 101. Accepted and incorporated herein. 102. Accepted. 103. - 107. Accepted and incorporated herein. 108. - 110. Accepted. 111. Accepted and incorporated herein. 112. - 115. Accepted. FOR THE RESPONDENT: Accepted and incorporated herein. Accepted and incorporated herein. Rejected as not being an accurate statement of facts in all cases. Accepted. Rejected as contra to the weight of the evidence. Rejected as contra to the weight of the evidence. COPIES FURNISHED: Britt Thomas, Esquire Agency for health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Wilson Jerry Foster, Esquire Suite 101-A 1342 Timberlane Road Tallahassee, Florida 32321-1775 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309 William H. Buckhalt Executive Director Board of Osteopathic Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792
