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 ultimate issues for determination are whether Respondent, Dr. Lieberman, committed the violations as alleged, and if so, what license discipline is appropriate. More specifically, did the following violations of Chapters 893 and 458, Florida Statutes, regulating the practice of medicine occur as alleged: As to Patient, M. A. Sections 893.05, Florida Statutes, and Section 458.1201(1)(k), Florida Statutes, (1977) reenacted as Section 458.331(1)(g), Florida Statutes, (1987) -- by inappropriately prescribing certain drugs classified as controlled substances. Section 458.1201(1)(m), Florida Statutes, (1977) reenacted as Section 458.331(1)(j) and (t), Florida Statutes, (1987) -- by utilizing examinations for his own sexual gratification, by making inappropriate remarks during examinations and by engaging in sexual activity with the patient within the patient-physician relationship. As to Patient, L. I. Sections 458.329, Florida Statutes, and Subsections 458.331(1)(j), [formerly (k)], (t) and (x), Florida Statutes, -- by forcibly engaging in sexual intercourse with a patient and by inappropriately using the examination for his own sexual gratification. As to Patient, D. B. Section 458.329, Florida Statutes, and Subsections 458.331(1)(j), [formerly (k)], (t) and (x), Florida Statutes, by engaging in sexual conduct with a patient and using the examination for purposes of obtaining sexual gratification. As to Patient, B. J. (Case NO. 88-3334) Section 458.331(1)(t), Florida Statutes, by failing to obtain appropriate tests on a patient who was later diagnosed as having cervical cancer.
Findings Of Fact At all times relevant to the allegations of the Administrative Complaints, Robert A. Lieberman was a physician licensed to practice medicine pursuant to Chapter 458, Florida Statutes, and holding license number ME 0023165. After two years in the U.S. Navy, serving as a physician with the rank of Lt. Commander, Dr. Lieberman opened a private practice in Orlando, Florida in 1976. At all times relevant to the allegations of the complaints, Dr. Lieberman has been Board Certified in obstetrics and gynecology and maintained his practice at 615 East Princeton Street, in Orlando, Florida. Dr. Lieberman's practice includes approximately 6500 patient visits per year and the delivery of approximately 180 infants per year. M. A. Patient M. A., also known as M. Q., was treated by Dr. Lieberman from February 1, 1977 until May 31, 1979. She also visited the office on October 24, 1979 for a pregnancy test, but was not seen by Dr. Lieberman on that date. During the course of her visits she was treated for a variety of complaints including difficulty in adjusting to birth control pills, gynecological infections, post-coital bleeding and a spontaneous abortion. She underwent an induced abortion on February 7, 1977, and later became an obstetric patient of Dr. Lieberman. She delivered a live birth on June 29, 1978. During the course of her treatment M. A. was an extremely stressed and disturbed young woman. In January 1978, She reported having been beaten by her boyfriend. She also reported heavy usage of cocaine and "sopors" (methaqualone) In January 1979, she reported she was raped. At one point, during a divorce, she wrote an anguished letter to Dr. Lieberman asking that he be her "shrink" (her term, which in the context of the letter meant counselor). (Petitioner's Exhibit 7.) During the course of his treatment of M. A., Dr. Lieberman's office notes and copies of prescriptions reflect the following controlled substances that he prescribed for her: Date 2/7/77 Type Percodan Dosage (not indicated) Number 12 2/22/77 Valium 10 mgs 30 3/1/77 Percodan (not indicated) 30 3/1/77 Quaaludes (not indicated) 10 3/10/77 Valium 10 mgs 30 3/18/77 Valium 10 mgs (not indicated) 5/6/77 Valium 10 mgs 60, plus one refill 5/20/77 Quaaludes 300 mgs 15, plus one refill 5/27/77 Valium 10 mgs 60, plus one refill 8/11/77 Tranxene 7.5 60 1/4/78 Phenobarbitol 1 gr 60, plus one refill 1/4/78 Darvocet N100 60 5/17/78 Quaaludes 300 mgs 30 7/13/78 Fiornal No. 3 20 7/17/78 Seconal 100 mgs 10 7/20/78 Fiornal No. 3 20 8/4/78 Quaaludes (not indicated) 30 8/7/78 Fiornal No. 3 15 8/24/78 Quaaludes 300 mgs 30 9/18/78 Quaaludes 300 mgs 30 9/19/78 Quaaludes (not indicated) 30 9/25/78 Quaaludes 300 mgs (not indicated) 10/10/78 Quaaludes 300 mgs 30 11/1/78 Quaaludes 300 mgs 30 11/6/78 Valium 10 mgs 30, plus two refills 11/6/78 Valium (not indicated) 30, plus two refills 12/15/78 Percodan (not indicated) 20 12/26/78 Quaaludes 300 mgs 30 1/2/79 Quaaludes 300 mgs (not indicated) 1/15/79 Placidyl 500 mgs 30 2/1/79 Valium 10 mgs 30 5/31/79 Placidyl 750 mgs 30 The medical records also reveal that M. A. was given a single injection of Demerol at the time of her abortion procedure on February 7, 1977. No evidence supports the allegation that this use of the drug was inappropriate. Quaaludes are a depressant and were prescribed for sleep, primarily. They have an effect comparable to barbiturates. They are highly addictive and, while legal at the time that Dr. Lieberman was prescribing them for M. A., they were removed from the market around 1982 because of their abuse. Placidyl is also a sleeping pill, although in a different class of drugs than Quaalude. Tranxene is similar to Valium and both are used as tranquilizers. Dr. Lieberman's office notes did not reflect the basis for the wide array and sometimes frequent prescriptions. In several instances he prescribed Quaaludes without any notation in his office records. This occurred on August 24, 1978, September 18, 1978 and October 10, 1978. Nevertheless, the testimony of the agency's physician witnesses lacked specificity with regard to the propriety of Dr. Lieberman's prescriptions to this patient. Dr. Curry felt that the prescriptions for Quaaludes were "excessive" and that it was "unwise" for a physician to prescribe this quantity of a popular street drug to a known drug abuser. (Petitioner's Exhibit 2, pp. 6 and 10.) He offered no opinion on the other controlled substances. Dr. Rudolph had a close family member who had a problem with Quaaludes and he would never prescribe this drug. He was concerned generally with regard to the variety of drugs, but could conclude that only the Quaaludes were absolutely, totally, unnecessary. (Petitioner's Exhibit 1, P. 71.) Neither physician was qualified as an expert in pharmacology and neither was particularly familiar with M. A.'s records, as they had difficulty reading the office notes. M. A.`s testimony with regard to her experiences as Dr. Lieberman's patient was vague and confused. Ten years ago she was, as she described, a different person, under substantial stress and thoroughly habituated to drugs. She claims that Dr. Lieberman knew that she was a substance abuser and willingly provided her with the prescriptions she sought. She also claimed that he made embarrassing "joking and filthy" comments about the appearance of her genitalia during her pelvic examinations. She also claims that on one occasion, when she had gone to his office seeking drugs, he required that she perform oral sex on him. The dates and specifics of these charges were not provided. M. A. admitted that during the period in question, she was on tranquilizing drugs all of the time and that she was not aware of all that Dr. Lieberman had done to her until 1982 or 1983. Prior to her testimony in this proceeding she had given sworn statements in deposition or otherwise with regard to her relationship with Dr. Lieberman. In one such statement given on November 9, 1984, she testified that she was a patient of Dr. Lieberman in the early 70's and that he prescribed drugs for her for a period of about eight years. (Petitioner's Exhibit 8.) The patient records and prescriptions substantiate that M. A. was a patient for approximately two years (1977-1979). Dr. Lieberman was not in private practice until 1976, and M. A. concedes that she first met him when she visited his office at East Princeton Street. In addition to discrepancies in dates, M. A. at various times claimed that Dr. Lieberman made advances or fondled her prior to the oral sex incident and, in contradiction, claimed that she was surprised by the incident as sex had never come up at all other than verbal teasing. (Transcript, pp. 52 and 68, Petitioner's Exhibit 3, P. 10.) In summary, M. A. was an earnest and emphatic witness. However, the lavish and unspecific charges she has made cannot alone form the basis of proof of the violations related to this patient in the Administrative Complaint. In spite of the ten years time that has elapsed since these violations allegedly occurred, the agency failed to produce written records, prescriptions, and corroborating testimony from the other patients through whom M. A. claimed Dr. Lieberman was supplementing her drugs, to substantiate her charges. L. I. L. I. was Dr. Lieberman's patient from July 1978 until November 1982. She was initially treated for conditions requiring a total abdominal hysterectomy. She had follow-up visits and was seen intermittently for other non-related complaints through April 1980. Two years later she again visited Dr. Lieberman on June 8, 1982, when she presented complaints of pain in her left side. On June 17, 1982, she was hospitalized and Dr. Lieberman performed an exploratory laparotomy with lysis of adhesions. That is, abdominal surgery was performed and adhesions or scar tissue attached to the ovary were broken apart, without complications. She was discharged after some further tests related to digestive and vision problems, on June 25, 1982. On July 2, 1982, L. I. returned to Dr. Lieberman's office for a post- operative examination and for removal of her bandages. At the time of the examination, as instructed, L. I. kept her clothing on, except for her underpants, which she removed. She was given a paper sheet which she used as she lay an the examining table. Dr. Lieberman conducted the examination without a chaperone, pulling the sheet up and pressing around the abdomen area. After the examination, he said she could get up and reached out to help her when she had difficulty. Instead of moving away, he stood and stared at L. I. as she sat on the table with her legs outstretched. This made her uncomfortable. He told her to scoot forward and when she did not, he pulled her forward and unzipped his pants. L. I. protested verbally with, "Don't do this, and "this is not right." He then leaned forward and quickly had sexual intercourse with her. Afterwards L. I. sat and cried. He turned to the sink and handed her tissues and asked if he had hurt her. He said that he did not want her to be upset, that it was important that she not say anything and that he would see her again in two weeks. (Transcript, Vol. I, pp. 79-86.) L. I. did not report the rape. She was profoundly embarrassed and felt that she was at fault for not struggling. In order to return to work after her surgery, L. I. had to have a release from her attending physician. She returned to Dr. Lieberman's office on July 20, 1982, as he was the only person who could provide the release insisted on by her employer. The nurse instructed her to get undressed for a pelvic examination. She questioned why a pelvic examination was necessary, but did undress. The nurse left and Dr. Lieberman entered the examining room. As he walked toward her, L. I. put her hand up and said, "No, not until the nurse comes'. He turned, and L. I. thought he had pushed a call button for the nurse. She stretched back on the table positioned for the examination, with her feet in the stirrups. Dr. Lieberman stood next to her at the side of the table, rather than at the end of the table between the stirrups, where a pelvic examination is usually conducted. He touched her between the legs with his bare hand and L. I. heard him undoing his pants. She said, "Oh, not this again," and the phone rang in the examining room. As he turned to answer the phone, she sat up and wrapped herself with the sheet. After the call, he walked out. As L. I. was getting dressed, he walked back in. She said, Just give me my release and I'll go". He told her to sit down and calm herself; she sat on the stool where her clothes had been and asked again for the release. He told her it was important not to say anything about what happened, that it had never happened before; he wrote her release on a prescription pad and left. (Transcript, Vol. I, pp. 90-94.) L. I. returned to Dr. Lieberman's office for one final visit in November 1982. She had received a card in the mail reminding her that it was time for a Pap test. By then she had thought about what had happened and felt that, given another opportunity, she could struggle or scream and someone would believe her. Otherwise, she was concerned it was just her word against the doctor. On this occasion, she undressed fully for the exam. A nurse was in the room almost the entire time and no improper advances or comments were made. The examination and discourse afterward were uneventful. Although, she told him that she was still upset about what happened. He didn't respond. L. I. never returned to Dr. Lieberman or to any other gynecologist. In March 1983, L. I. began seeing a mental health counselor through her employee assistance program when she was having trouble with one of her children. At some point in the counseling process, L. I. began discussing her experience with Dr. Lieberman. As a result of the counseling she gained some insight into her own reactions to the incident. She is intimidated easily and is compliant. She tries to let things go and handle matters in her own way. In his testimony at hearing, Dr. Lieberman agreed that L. I. was reticent and a subdued and submissive type of individual. (Transcript, Vol. IV, P. 138.) She obtained legal counsel civil brought a civil suit against Dr. Lieberman, which suit has since been settled. D. B. D. B. was a patient of Dr. Lieberman from June 1978 until September 1981. She first became his patient when he was the OB/GYN physician on call at Florida Hospital where she had been referred by a family practitioner. He performed emergency surgery, and she continued to see him on a regular basis for routine check-ups and a variety of gynecological services, including two abortions, treatment for infections, and birth control. On September 1, 1981, D. B. visited Dr. Lieberman's office for the purpose of being fitted for a diaphragm, a birth control device. At the instructions of the nurse, D. B. completely disrobed, and draped the paper vest and sheet. She was sitting on the examining table when Dr. Lieberman entered the examining room. They exchanged brief pleasantries with regard to his having been up all night delivering babies. He then approached her, attempted to push her down on the table, and french kissed her while fondling her left breast. She resisted physically by pushing forward, and the incident lasted only ten to fifteen seconds. As he wiped lipstick from his mouth, he told her that she wasn't cheating on her husband. She dressed, left the office and returned to her own office. (Transcript, Vol. I, pp. 52-58.) At the office she talked to a friend who suggested that she do something. The friend called the police and arrangements were made for her to meet them at her apartment. After she made her report to the police, D. B. was contacted by a female police detective, Sgt. Alana Hunter. D. B. decided not to press charges because she had two abortions prior to her marriage and had never told her husband. She was told that the abortions might be disclosed during the prosecution. She later retained the services of an attorney and a civil action is pending. B. J. B. J. was an OB/GYN patient of Dr. Lieberman from September 1979 until May 1984. Her medical care and treatment by Dr. Lieberman included obstetrical deliveries in June 1980 and November 1982, with intervening gynecological care. Part of that care included a test called a Pap smear. This procedure involves the taking of a sample of cells from the patient's cervix which sample is sent to a laboratory for a cytological/pathological examination to determine the presence of abnormal, precancerous or cancerous cells. It is a routine gynecological procedure with the primary purpose of early detection of cancer. The findings of examination of a Pap smear are reported in levels, ranging from I, which is considered normal; to II, considered abnormal or denoting inflamed or damaged cells; to III, inferring cancerous consideration; to IV and V, where carcinoma is more clear and definite. B. J. had Pap smears taken by Dr. Lieberman on September 26, 1979; June 23, 1980; December 18, 1980; July 28, 1981; and May 7, 1982 -- all Class I, although the laboratory reports for the latter three tests noted mild and moderate inflammation. On December 21, 1982, her Pap result was Class II. She was treated with a vaginal suppository and was appropriately directed to return for a follow-up test in one month. The repeat test on January 25, 1983, was still Class II. On February 8, 1983, Dr. Lieberman performed a cryocauterization of B. J.'s cervix. This is an office procedure involving the use of a probe-like instrument which is inserted flush up against the cervix. Nitrous oxide is released to the probe, freezing the atypical cells. This results in a discharge over the next six to eight weeks, during which time the entire surface of the cervix is sloughed away. Dr. Lieberman next saw B. J. on September 14, 1983, when another Pap smear was taken. This returned from the laboratory as a Class I. At that point he was satisfied that the cryocauterization had been successful. Sometime between September 1983 and February 1984, B. J. began experiencing bleeding during and after intercourse. She returned to Dr. Lieberman with that complaint on February 23, 1984. He found the cervix bled when touched and he took another Pap smear. This test returned as a Class II. Since he felt that the procedure had worked in the past, Dr. Lieberman performed another cryocautery procedure on B. J. on March 8, 1984. On May 8, 1984, she came back to his office still complaining of bleeding. Her cervix appeared beefy red and Dr. Lieberman saw very small points of bleeding. He applied a coagulent to attempt to stop the bleeding. She returned two days later and more coagulent was applied to her cervix. On May 30, 1984, Dr. Lieberman applied hot cauterization to her cervix. B. J. never returned for further treatment from Dr. Lieberman. Instead, B. J. changed her Health Maintenance Organization (HMO) family practitioner and was referred to another OB/GYN physician, Dr. Grace Sarvotham. During her pelvic examination B. J. bled profusely and was referred to Dr. Robert DeMaio, a Board-certified OB/GYN, practicing in Winter Park, Florida. Dr. DeMaio examined B. J. on September 5, 1984. Utilizing a colposcope, which is a microscope-type instrument, to magnify the cervix, he found areas of abnormal blood vessels and abnormal white epithelium. Because of these abnormalities, he took a biopsy. The report on the biopsy was returned on September 6, 1984, with the finding exophytic squamous cell carcinoma -- in lay terms, cancer of the cervix that had shown evidence of spread. B. J. was referred to Dr. Thomas Castaldo, a gynecological oncologist, who admitted her for surgery on September 17, 1984, and performed a radical abdominal hysterectomy and bilateral pelvic node dissection. That means her uterus and cervix were removed, along with the supporting tissues and pelvic lymph nodes. She is still being followed by Dr. Castaldo and has received radiation therapy from Dr. John Looper, a Board-certified radiation oncologist in Orlando, Florida. Dr. Lieberman claims that by May 1984, he was beginning to feel that a biopsy should be done on B. J.'s cervix. This procedure involves the surgical removal of a small amount of tissue and its examination under a microscope. He was familiar with this procedure and was trained in it, as well as in the cotoposcopy procedure utilized by Dr. DeMaio. Except with a Class V Pap smear, which undeniably indicates cancer, a diagnosis cannot be made from a Pap smear. The abnormalities or inflammations noted with a Class II Pap smear are symptoms of some condition which must be diagnosed before they are treated. Dr. Lieberman's use of the cautery procedures prior to diagnosis served to temporarily mask the symptoms. His failure to diagnose B. J.'s condition prior to treatment, or to rule out cancer or precancerous condition was a departure from the standards of acceptable and prevailing medical practice. SUMMARY OF FINDINGS One of the most sensitive but essential functions of a fact finder is the resolution of conflicting testimony by weighing the credibility of witnesses. Disposition of the issues in this case involves almost exclusively that function. M. A.'s rambling and confused account of her life as a drug abuser in the 1970's, indiscriminately consuming vast quantities of controlled substances, was either zealous hyperbole or a candid revelation of her tortured former existence and mental state. Neither construction recommends the credibility of her allegations of Dr. Lieberman's wrongdoing. The agency failed to prove the specifics of those allegations. There were a few prescriptions, some of which were never recorded in Dr. Lieberman's office notes for this patient, contrary to his avowed practice. But those prescriptions in no way fully corroborated M. A.'s testimony. Likewise, the expert opinions based on review of office notes, medical records and the prescription forms were too equivocal to outweigh contrary opinions offered by Dr. Lieberman's experts. L. I. and D. B., in contrast, were convincing and competent witnesses. L. I. credibly explained how she could return twice to the scene of her rape. Her unwillingness to immediately report the incidents was also explained. D. B. stated at hearing that she did not receive any treatment in Dr. Lieberman's office on September 1, 1981. In an earlier, out-of-hearing statement, she established that she had been fitted with a diaphragm during the visit and prior to Dr. Lieberman's untoward conduct. The earlier statement is consistent with the office notes in records maintained by Dr. Lieberman. The inconsistent statements do not, however, impeach her allegation that Dr. Lieberman kissed and fondled her on that occasion. Dr. Lieberman claims that he has no independent recollection of the visits by these patients on the dates in question. He denies that he is a violent person who could have assaulted these women. Although sexual assaults are generally considered acts of violence, in these instances little force was required. He had established a relationship of trust and took advantage of that trust. His testimony that coitus is anatomically impossible with the woman in a seated position, likewise begs the question. L. I. described her position as seated on the examining table with her legs dropped, when the extension of the table was dropped by Dr. Lieberman. He positioned her, as she described, with his arm around her buttocks, moving her forward. A simple rotation of the anatomical chart, received in evidence as Respondent's Exhibit 12, demonstrates how entry could have been accomplished under those circumstances. Uncontroverted expert testimony established that the sexual activities by Dr. Lieberman with L. I. and D. B. were outside the scope of generally accepted examination or treatment of a patient. With regard to Patient B. J., the solid weight of expert evidence established that the failure to obtain appropriate tests was an unacceptable deviation from the standards of reasonable medical care. The wrongdoing was not, as argued by counsel for Respondent, the failure to diagnose B. J.'s cancer. The violation was the persistent treatment of symptoms whose etiology had not been established. The testimony of Dr. William Russell, one of Respondent's experts, regarding the use of Pap smears in the detection of cancer, was informative, but his opinion that a colposcopy or biopsy of B. J.'s cervix during Dr. Lieberman's treatment was unnecessary is not persuasive in the face of the overwhelming competent evidence presented by the agency's witnesses.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a final order be entered by the Board of Medicine finding Robert A. Lieberman, M.D., guilty of sexual misconduct in the practice of medicine and failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, and revoking his license to practice medicine. DONE and ENTERED this 13th day of April, 1989, in Tallahassee, Leon County, Florida. MARY CLARK 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 13th day of April, 1989. APPENDIX Subsection 120.59(2), Florida Statutes, requires that if a party submits proposed findings of fact, the order must include a ruling on each. Counsel for Petitioner submitted a 101-page "proposed recommended order", with 599 separately numbered paragraphs styled "proposed findings of fact". The vast majority of these paragraphs are not proposed findings of fact, but rather are a summary statement of testimony of the witnesses, taken from the transcript of hearing and the two depositions of Petitioner's experts. The statements are not organized by issue or subject matter but faithfully follow the order in which the testimony was given at hearing. Although these statements have been read, no rulings need be made. Any rulings would be mere commentary on the testimony as summarized by Petitioner. Specific Rulings on Respondent's Proposed Findings of Fact (Case NO. 88-3333) Adopted in paragraph 1. Adopted in paragraphs 2 and 3. Adopted in paragraph 2. Adopted in paragraphs 4, 14 and 23, with the exception of the last sentence which is not addressed in the record. Adopted in substance in paragraph 4. Adopted in summary in paragraph 5, except that the number of months is 15, not 12. 7.-9. Adopted in summary in paragraph 10. 10.-12. Rejected as unnecessary. 13.-17. Adopted in summary in paragraph 6. 18.-45. Adopted in summary in paragraphs 5, 7 and 10. 46.-53. Rejected as unnecessary. 54. Adopted in substance in paragraph 4. 55.-60. Rejected as unnecessary. 61.-62. Adopted in paragraph 23. 63. Adopted in paragraph 24. 64.-65. Rejected as unnecessary 66. Adopted in paragraph 24. 67.-69. Rejected as unnecessary. Adopted in paragraph 43. Adopted in paragraph 14. Rejected as unnecessary. Adopted in paragraph 15. 74.-75. Rejected as unnecessary. 76. Adopted in paragraphs 18 and 19, except that the record does not establish that a pelvic examina- tion was conducted on July 20, 1982. (Case NO. 88-3334) 1. Adopted in paragraph 1. 2.-3. Adopted in paragraphs 2 and 3. Adopted in paragraph 27. Adopted in paragraph 28. Adopted in paragraph 29. Adopted in paragraphs 37 and 39. Adopted in paragraph 39. Adopted in paragraph 31. Adopted in paragraph 31, except that the record established that the condition is not unusual after a vaginal delivery. B. J.'s delivery was a Caesarean section. 11.-12. Adopted by implication in paragraphs 30 and 31. Adopted in paragraph 31. Rejected as contrary to the weight of evidence. Adopted in paragraph 32. Rejected as unnecessary. Adopted in paragraph 33. Rejected as unnecessary, but still implied in the finding in paragraph 34. 19.-21. Adopted in paragraph 34. Adopted in paragraph 35. Rejected as unnecessary. Adopted in paragraph 35. 25.-26. Adopted in summary in paragraph 36. Adopted in paragraph 37. Adopted in paragraph 38. 29.-30. Rejected as unnecessary, except the fact that she underwent radiation therapy, addressed in paragraph 38. COPIES FURNISHED: PETER FLEITMAN, ESQUIRE ONE DATRAN CENTER, SUITE 1409 9100 SOUTH DADELAND BOULEVARD MIAMI, FLORIDA 33156 THOMAS M. BURKE, ESQUIRE RICHARD A. SOLOMON, ESQUIRE 11 EAST PINE STREET POST OFFICE BOX 1873 ORLANDO, FLORIDA 32802 DOROTHY FAIRCLOTH, EXECUTIVE DIRECTOR BOARD OF MEDICINE DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 KENNETH D. EASLEY, ESQUIRE GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
The Issue The issue presented is whether Respondent is guilty of the allegations set forth in the Administrative Complaint, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been a physician licensed to practice in the State of Florida, having been issued license number ME 0020248. Respondent is a board- certified pathologist who completed a residency in obstetrics and gynecology in Venezuela and practiced in the field of obstetrics and gynecology in South America for almost five years before coming to the United States. On April 20, 1991, patient J. B., a 27-year-old female, came to A Woman's Care, where Respondent was then employed, for the purpose of terminating her pregnancy. She indicated on a patient history form that the date of her last menstrual period was January 30, 199l. According to the medical records from A Woman's Care, she did not express any uncertainty or equivocation with respect to that date. One method of determining gestational age is based on calculating from the last menstrual period, assuming that the patient's history is reasonably reliable. With a history of a last menstrual period on January 30, 1991, the gestational age of the fetus on April 20, 1991, based upon a calculation by dates, was seven weeks. After obtaining a history from the patient with respect to the date of the last menstrual period, the physician needs to perform a bi-manual examination of the patient in order to assess the size of the uterus and to confirm the history given by the patient. Although the bi-manual examination is a reasonably reliable method of assessing the stage of pregnancy, it is a subjective examination and can sometimes be difficult. There is an acknowledged inaccuracy with respect to that clinical evaluation. The most accurate method of determining the gestational age of a fetus is through ultrasound examination. An ultrasound is performed when there is uncertainty as to the gestational age, such as when the patient does not know the date of her last menstrual period or when there is inconsistency between the patient's disclosed date and the physician's bi-manual examination. There is a general correlation between the size of the uterus in centimeters on bi-manual examination and gestational age in weeks. It is important to determine the gestational age of the fetus before performing a termination of pregnancy because the gestational age is the determining factor in deciding the size of the instruments to be used in the procedure and the amount of tissue to be removed. Respondent performed a bi-manual examination of the patient and recorded that his examination revealed a uterus consistent with an approximately seven-week gestation. Because the gestational age by dates and the results of the bi-manual examination both indicated a seven-week pregnancy and were consistent, Respondent did not order an ultrasound examination for the purpose of determining gestational age. On April 20, 1991, Respondent performed a termination of pregnancy on patient J. B. after the patient was informed of the possible risks of the procedure and after the patient signed a Patient Informed Consent Form. That Form detailed the possible risks, including infection and incomplete termination. Based upon the patient's history and the bi-manual examination and his conclusion that the patient was approximately seven-weeks pregnant, Respondent used an 8 mm Vacurette to terminate patient J. B.'s pregnancy. An 8 mm Vacurette is an appropriately-sized device to terminate a seven-week pregnancy. After completing the procedure, Respondent submitted the tissue obtained to a pathologist who determined that three grams of tissue had been submitted, consisting of products of conception and chorionic villi. The pathology report revealed what would reasonably be expected as a result of the termination of a seven-week pregnancy. After the procedure, the patient was given written instructions for her care and was discharged from A Woman's Care at 10:35 a.m. On April 21, 1991, at approximately 6:30 a.m., the patient's grandmother telephoned A Woman's Care to advise that the patient was complaining of dizziness and pain. The patient was advised to take Tylenol and call back if she continued to feel sick. At approximately 7:30 a.m., the patient's grandmother called again to advise that the patient was going to go to the hospital. On April 21, 1991, at 1:25 p.m., patient J. B. arrived at the Emergency Room at North Shore Medical Center with a temperature of 104.3 degrees, an elevated white blood cell count, chills, lower abdominal pain, and spotting. The patient was seen during her North Shore admission by Dr. Ramon Hechavarria, a physician certified in obstetrics and gynecology, and by Dr. Tomas Lopez, a general surgeon. Dr. Lopez noted in his consultation report that a pelvic bi-manual examination that he performed on April 21 showed an enlarged uterus corresponding to approximately 11-12 weeks' gestation. An ultrasound examination done on April 21 revealed a uterus measuring 11.0 x 7.8 x 7.8 centimeters and a viable intra- uterine pregnancy which was estimated by the radiologist to be 13-14 weeks' gestational age. On April 22, the patient underwent termination of her pregnancy by Dr. Hechavarria who noted in his operative report that both the pelvic ultrasound and a bi-manual examination revealed an intra-uterine pregnancy of about 11 weeks with a live fetus. An ultrasound performed intra-operatively confirmed that all fetal tissue had been removed and that there were no perforations. Infection and an incomplete termination are two of the recognized complications resulting from terminations of pregnancy. The fact that a patient suffers an infection or an incomplete termination does not, per se, indicate any negligence on the part of the physician. Respondent did not fall below the recognized standard of care by failing to perform an ultrasound on patient J. B. His examination revealed a gestational age consistent with the date identified by the patient as the date of her last menstrual period. Accordingly, there was no need to perform an ultrasound. Respondent did not fall below the recognized standard of care by misjudging the gestational age of the fetus. It is not uncommon for a physician to misjudge the length of gestation by several weeks. For example, Drs. Lopez and Hechavarria concluded the fetus had a gestational age of 11 weeks; yet, the ultrasound reported 13-14 weeks. Respondent did not fall below the recognized standard of care by using the wrong size of equipment to perform the termination of pregnancy. He used the proper equipment consistent with his judgment as to the length of gestation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a Final Order be entered finding Respondent not guilty of the allegations and dismissing the Administrative Complaint filed against him in this cause. DONE AND ENTERED this 25th day of July, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1997. COPIES FURNISHED: Hugh R. Brown, Esquire Agency for Health Care Administration Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jonathon P. Lynn, Esquire Stephens, Lynn, Klein & McNicholas, P.A. Two Datran Center, Penthouse II 9130 South Dadeland Boulevard Miami, Florida 33156 Dr. Marm Harris, Executive Director Board of Medicine Agency for Health Care Administration Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309
The Issue The issues in this case are whether Respondent violated section 458.331(1)(m), Florida Statutes, by failing to keep legible medical records that justify the course of treatment of a patient, as set forth in the Second Amended Administrative Complaint, and, if so, what is the appropriate sanction.
Findings Of Fact The Department is the state agency charged with regulating the practice of medicine pursuant to section 20.43, chapter 456, and chapter 458, Florida Statutes (2015). The Board of Medicine is charged with final agency action with respect to physicians licensed pursuant to chapter 458. Dr. Velilla is a licensed physician in the state of Florida, having been issued license number ME 98818. Dr. Velilla's address of record is 12709 Miramar Parkway Miramar, Florida 33027. Dr. Velilla has been a medical director at Evolution MD since the summer of 2010. Dr. Velilla was licensed to practice medicine in the state of Florida during all times relevant to Petitioner's Second Amended Administrative Complaint. Dr. Velilla is Board-certified in internal medicine by the American Board of Internal Medicine. On or about December 29, 2010, Patient C.A. consulted with Dr. Velilla regarding possible abdominal liposuction and fat transfer to the gluteal area. These are cosmetic surgery procedures, undertaken with the object of enhancing the patient's appearance, and are purely elective. On or about February 10, 2011, Dr. Velilla performed an evaluation of Patient C.A. and ordered routine pre-operative laboratory studies. The laboratory report prepared by First Quality Laboratory indicated readings within normal limits for blood urea nitrogen (BUN) at 19.8 and creatinine serum at .7, but an abnormally high BUN/creatinine ratio reading of 30.43. It showed an abnormally high globulin reading at 3.40, an abnormally low INR reading of .79, an abnormally low MCH reading of 25.2, and an abnormally low MCHC reading of 30.7. On or about February 15, 2011, Dr. Velilla reviewed Patient C.A.'s pre-operative laboratory report results. He placed a checkmark next to the high BUN/creatinine reading and the low INR reading. He wrote "Rev." with the date and signed his name on each page. Dr. Velilla testified that he performed a glomerular filtration rate test, a calculation used to check on the functioning of the kidneys, and the result indicated normal renal function. He testified that a BUN/creatinine ratio outside of the normal range could be caused by several factors, and that after his assessment, the reading was not of concern to him in proceeding to surgery. Dr. Velilla did not make any notation on Patient C.A.'s medical records to indicate how or why he concluded that the abnormal BUN/creatinine ratio reading was not of concern. On February 24, 2011, Patient C.A. filled out a "General Consent" form. Patient C.A. agreed to disclose her medical history, authorized the release of medical records for certain purposes, agreed to use skin care products as directed, and acknowledged possible side effects from the use of skin care products. The form also stated, "I understand that Cesar Velilla, M.D. P.A. services generally consist of a series of treatment [sic] to achieve maximum benefit, and this consent shall apply to all services rendered to me by Cesar Velilla, M.D., P.A., including ongoing or intermittent treatments." On February 24, 2011, Patient C.A. filled out a "Medical History" form. Patient C.A. indicated she was not under the care of a dermatologist, did not have a history of erythema ab igne, was not on any mood-altering or anti-depression medication, had never used Accutane, had never had laser hair removal, had no recent tanning or sun exposure, had no thick or raised scars from cuts or burns, and had never had local anesthesia with lidocaine. The form did not ask for information about any prior abdominal procedures, previous liposuction treatments, multiple pregnancies, or abdominal hernias. On February 24, 2011, Patient C.A. signed a "Consent for Laser-Assisted Lipolysis Procedure SLIM LIPOSCULPT." The form did not include consent for fat transfer to the gluteal area or describe risks or possible complications of that procedure. Patient C.A. also signed a "Consent for Local Aneshesia [sic]" form. As Dr. Obi testified, the risks from a fat transfer procedure are generally the same as those of the liposuction procedure; although with a fat transfer, you have additional potential for fat embolism. On or about February 24, 2011, Dr. Velilla performed liposuction of the abdomen and thighs with fat transfer to the gluteal area on Patient C.A. at Evolution MD. Patient C.A.'s liposuction was not the "Slim Liposculpt" laser-assisted procedure. The testimony was clear that the "Slim Liposculpt" procedure would use a laser to melt the fat before liposuction, which could not be done on Patient C.A. because the fat was to be transferred. There was testimony that a laser could be used to improve skin retraction, however. As Dr. Velilla testified, Patient C.A. had requested the fat transfer in addition to the liposuction prior to the procedure. Dr. Velilla discussed the risks of both the liposuction and the fat transfer with Patient C.A., and she consented to have the procedure done. As Dr. Velilla testified, this consent was later documented on the operative report prepared sometime after the surgery and dated February 24, 2011, the date of the surgery. Dr. Velilla's testimony was supplemented by the operative report, which stated in pertinent part: The patient requested liposuction with fat transfer and understood and accepted risks including but not exclusive to bleeding, infection, anesthesia, scarring, pain, waves, bumps, ripples, contour deformities, numbness, skin staining, fluid collections, non- retraction of the skin, deep venous thrombosis, fat embolism, pulmonary embolism, death, necrotizing fasciitis, damage to surrounding structures, need for revision surgery, poor aesthetic result and other unexpected occurrences. No guarantees were given or implied and the patient had no further questions prior to the procedure. Other options including not having surgery were discussed and dismissed by the patient. The operative report adequately documented Patient C.A.'s earlier oral informed consent for liposuction with fat transfer. Patient C.A. did not execute a written informed consent for the fat transfer prior to the procedure. Dr. Velilla also noted in the operative report that the "patient physical examination and pre-operative blood work were within normal limits." Neither the operative report nor any other documentation indicated whether a complete physical examination or a focused physical examination was given, or what that examination consisted of. Patient C.A. was scheduled for a second liposuction procedure on her arms on February 26, 2011. It was decided to defer the procedure on her arms to this later date in order to keep the amount of lidocaine at a safe level during the initial procedure. On or about February 26, 2011, Patient C.A. presented to Evolution MD with complaints of nausea and mild pain. Dr. Velilla was not at the Evolution MD office. Mild pain is to be expected on the second day after a fat transfer procedure, and nausea can be anticipated in some patients who are taking opiods, as had been prescribed for Patient C.A. There was insufficient competent evidence in the record to support a finding that Patient C.A.'s symptoms were unusual or that Dr. Velilla was ever informed of more serious symptoms in Patient C.A. that day. Dr. Velilla spoke by telephone with an Evolution MD staff member about Patient C.A.'s symptoms and instructed the staff member to ask Patient C.A. to wait for his arrival at the office. A "Progress Note" signed on February 26, 2011, by Ms. Amanda Santiago, of Dr. Velilla's office, indicated that Patient C.A. said the pain and nausea were "due to the Vicodin." The note indicates that Dr. Velilla was called, that he stated he might stop the Vicodin and start Patient C.A. on Advil or Tylenol for pain, and that he asked that Patient C.A. be prepared for surgery. The note does not indicate that Dr. Velilla directed that Patient C.A.'s vital signs be taken, or that they were taken. The note states that Patient C.A. decided not to have the procedure on her arms done and that Dr. Velilla was again called. The note indicates that he asked the staff to take pictures of Patient C.A. and ask her to wait for him to arrive. Dr. Velilla did not order Evolution MD staff to take Patient C.A.'s vital signs. Her vital signs were not recorded by Evolution MD staff on February 26, 2011. Contrary to Dr. Velilla's request, Patient C.A. left Evolution MD on February 26, 2011, prior to Dr. Velilla's arrival at the office, and Evolution MD staff were unable to contact her. On or about February 27, 2011, Patient C.A. presented to Coral Springs Medical Center where she was admitted with a diagnosis of severe dehydration, intravascular volume depletion, diarrhea, nausea, and vomiting. Subsequently, Patient C.A. was admitted to the intensive care unit. Patient C.A. remained hospitalized until March 31, 2011. Standards and Ultimate Facts Dr. Obi is a surgeon specializing in plastic surgery. He does not conduct laser-assisted liposuction, but performs what is known as "wet" or "super wet" liposuction, as was performed by Dr. Velilla in this case. He has been a Diplomate of the American Board of Plastic Surgery since 1982. Dr. Obi reviewed Patient C.A.'s medical records from Evolution MD, other related records, and the Second Amended Administrative Complaint. Taken as a whole, Dr. Obi's testimony with respect to the medical history documented for Patient C.A. was not clear and convincing. He testified that Patient C.A. was undergoing a significant operative procedure and that it involved multiple anatomic areas. He also noted that the history did not include information as to whether Patient C.A. had prior abdominal surgical procedures, earlier liposuction, multiple pregnancies, or abdominal hernias. He testified that this information could indicate increased risks of injury and that this relevant history must be documented. Dr. Obi stated that in his opinion the patient history did not meet the minimum standards of the medical records rule. On the other hand, Dr. Obi seemed to have only a partial understanding of what the medical records rule required, and he had no opinion on whether the patient history justified the course of treatment of Patient C.A.--the actual statutory standard that Dr. Velilla was charged with violating in the Second Amended Administrative Complaint: Q. What does the rule say? A: What does the rule say? The medical record rule I believe requires – I can't tell you verbatim what it says. It requires adequate documentation so that in the event that the care of a patient has to be transferred to another healthcare professional the documentation is adequate that the patient, that the professional could immediately step in and take over. Q: Okay. You believe that's part of either the statute or the rule enacted by the Board of Medicine? A: If the Board of Medicine is the group responsible for the medical record rule, then I would say yes. Q: Okay. Have you reviewed what has been alleged in the amended administrative complaint, or second amended administrative complaint, as to the statutory provision for medical record adequacy? A: The statutory, I'm not sure that I have. * * * Q: And do you believe that the records fail to justify the course of treatment of the patient with those history findings? A: That's not what I said. I didn't say it failed to justify. What I said is it wasn't complete. Q: Okay, do you have an opinion as to whether the records fail to justify the course of treatment of the patient? A: No. Q: You don't have an opinion. Okay, thank you. In contrast, Dr. Soler testified that in his opinion the patient history that was documented as part of Patient C.A.'s medical records did justify her course of treatment. With respect to the physical examination, Dr. Obi noted that there was only a single line in the operative record stating that the physical examination was within normal limits. He noted that the documentation did not indicate what had been examined and did not record any specific findings or results of any examination that was conducted. However, he never offered an opinion that the record of the physical examination failed to justify the course of treatment of Patient C.A. Dr. Soler testified that in his opinion, the record of the physical examination did justify the course of treatment of the patient. Petitioner did not show by clear and convincing evidence that the documentation of Patient C.A.'s medical history and physical examination failed to justify her course of treatment. Dr. Obi testified that the medical records should have contained more evaluation or explanation of the abnormal laboratory report results: Q: And so was the check mark, when coupled with that note in the pre op, or in the operative report, sufficient documentation of Dr. Velilla's evaluation of the of the patient's pre-operative lab results? A: In my opinion, no. Q: And what do you base that on? A: If you have an abnormal result, I think it is incumbent on you – it – depending on what the abnormality is, and depending on what your interpretation of that abnormality is, it's incumbent to explain it. Sometimes you need to repeat the tests. Sometimes it may be perfectly within normal limits, but on the laboratory sheet, if it says that it's high, or out of the range of normal, I think other than just check mark, I think you just acknowledge what your thoughts are. Q: And do you remember if there was anything abnormal in Patient C.A.'s pre-operative laboratory results? A: There was one area that I commented on. That was the BUN-creatinine ratio. Q: And what is the BUN-creatinine ratio? A: It's just a ratio of some parameters dealing with kidney function. Q: Okay, and what does that lab result tell you about a patient, if anything? A: Well, you know, it can call your attention to the area, I mean, it can tell you, you know, that the patient has some renal issues. It can tell you that the patient is, you know, potentially dehydrated, it can tell you that the patient, you know, is within normal. But if the values are – if one value is high and the other one is low, it may give you a, a high reading. And that's understandable, but all you need to do is document that. It was Dr. Obi's opinion that the medical records failed to contain a sufficient evaluation or explanation of the abnormal BUN/creatinine ratio laboratory result. He acknowledged that the abnormal result was not necessarily indicative of a renal problem. However, Dr. Obi also testified: Q: Okay. Do you have an opinion as to whether those records are adequate to justify the course of treatment of the patient? A: The failure to document the thought process on this ratio would, in and of itself, not prevent or preclude the operative procedure from being done, if that's your question. At best, Dr. Obi's testimony was thus ambiguous as to whether or not failure to include an explanation of the abnormal laboratory result failed to justify the course of treatment of Patient C.A. Dr. Soler testified that no other documentation or chart entry was required to address the lab report value in order to justify proceeding with the surgery. Dr. Sandler testified that the BUN/creatinine ratio was a renal-related test, but does not itself indicate kidney malfunction. Dr. Sandler also testified that in his opinion, no other documentation was needed prior to proceeding with the surgical procedure. The Department did not clearly and convincingly show that the documentation in the medical records relating to abnormal laboratory results failed to justify the course of treatment of Patient C.A. Dr. Obi testified that Dr. Velilla had a duty to order the taking of Patient C.A.'s vital signs since he was not yet in the office when she returned on February 26, 2011, the date the second liposuction had been scheduled. He testified that if the medical records rule "requires doing what's appropriate at each visit," then Patient C.A.'s records did not meet the requirements of that rule. He testified that if Patient C.A. was an "outlier" in that her symptoms were uncommon, the standard of care required that Patient C.A.'s vital signs be taken. Dr. Obi admitted that there was no documentation in the medical records to suggest that Dr. Velilla had ordered the staff at Evolution MD to take Patient C.A.'s vital signs, but he testified that the order should have been given and that it should have been documented. Dr. Obi testified that there was no written documentation of an informed consent for the fat transfer and that the consent for the "Slim Liposculpt" procedure was consent for a procedure that was not done. Again, Dr. Obi seemed unfamiliar with the specific requirements of the medical records rule: Q: And is, is the –is a written documentation of the fat transfer required by the medical record rule in this case? A: In terms of the actual requirement, it would be my opinion that it should be required. Now, I can't say if it says that for every procedure, every surgical procedure, every invasive procedure, that a written consent must be documented; because obviously, you now, the patient consented. It's implied that the patient consented because she showed up for the procedure. Dr. Obi testified that he was aware that the operative report contained statements that Patient C.A. had been informed of the risks of the fat transfer procedure and that she had specifically consented. He admitted he was unsure as to "which board, or organization, or outfit" requires a written informed consent. Aggravating and Mitigating Factors No evidence was introduced to show that Dr. Velilla has had any prior discipline imposed. There was no evidence that Dr. Velilla was under any legal restraints in February 2011. It was not shown that Dr. Velilla received any special pecuniary benefit or self-gain from his actions in February 2011. It was not shown that the actions of Dr. Velilla in this case involved any trade or sale of controlled substances. On May 17, 2014, Dr. Velilla received a certificate showing completion of an FMA educational activity conducted in Jacksonville, Florida, entitled "Quality Medical Record Keeping for Health Care Professionals."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, enter a final order dismissing the Second Amended Administrative Complaint against the professional license of Dr. Cesar Augusto Velilla. DONE AND ENTERED this 8th day of June, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 8th day of June, 2016.
