The Issue This is a case in which the Petitioner seeks disciplinary action by the Board of Medical Examiners against a licensed physician on the basis of allegations that Respondent, in the course of treating the patient Robert Dahlke, violated Section 458.331(1)(t), Florida Statutes, by Gross or repeated malpractice or the 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. The specific factual allegation is that "Respondent, in his postoperative treatment of Mr. Dahlke, allowed the pressure bandages to remain unchanged for too long of a period, and failed to remove the bandages and inspect the area when the patient complained of pain and swelling." Administrative complaint, Paragraph 4.
Findings Of Fact Based on the Administrative Complaint, the Answer, the exhibits received in evidence, and the testimony of the witnesses at the formal hearing, I make the following findings of fact. The Department of Professional Regulation is the state agency charged with regulating the practice of physicians pursuant to Section 20.30, Florida Statutes, and Chapters 455 and 458, Florida Statutes. At all times material hereto, Osbey L. Sayler, M.D., was a licensed physician in the state of Florida, having been issued license number ME 0018472. Since 1975 and at all times material hereto, the Respondent has conducted his medical practice in the specialty of general surgery in Jacksonville area hospitals and from an office at Orange Park, Florida. Respondent is suitably educated for and board-certified to his specialty, has been a Fellow of the American College of Surgeons since 1973, and regularly attends medical and surgical programs currently approved for professionals in this state. On October 8, 1981, for the relief of Mr. Dahlke's symptomatic varicose veins in the right leg, Respondent, at Baptist Medical Center, performed a surgical stripping of the greater and lesser saphenous veins in that leg. Mr. Dahlke initially consulted Respondent in his office on August 3 of that year, by reference from another physician, after the patient had undergone injections of the veins in his left leg by yet another physician. These injections had not relieved Mr. Dahlke's symptoms as he desired. Mr. Dahlke's varicose vein condition had recurred in recent years after surgery in the '60's and had become painful in his normal vocational activities as a cook and, later, as an assistant food administrator. Both occupations required considerable standing and walking. Respondent, on August 3, suitably advised Mr. Dahlke of the potential benefits and risks of surgery, advised him to wear elastic stockings temporarily for both therapeutic and diagnostic purposes, and arranged for the patient to have a venogram on August 4. In Respondent's judgment, a venogram was desirable to rule out thrombophlebitis in the deep veins or defects in the valves, either of which could render surgery ineffective or otherwise inadvisable. Respondent conservatively medicated the patient to reduce irritation and avoid potential infection in the left leg injection sites and saw the patient again on August 25 and September 8 before consenting on September 29 to admit him on October 7 for surgery at Baptist Medical Center, the patient's choice for convenient access by his family. On the evening of his admission and again before the morning's surgery, Mr. Dahlke bathed thoroughly using Phisohex as Respondent had directed. After hospital personnel shaved his right leg and groin area, the surgery proceeded without complication under a general anesthetic. Respondent properly prepared the surgical sites with a thorough Betadine swab and made an incision through the old scar in Mr. Dahlke's groin on the right, above the femoral junction. There he excised the superficial veins and tied them off after finding no other irregularity. Respondent then made incisions over the varicose veins at the interior right ankle and behind the knee--these having been marked previously, while the patient was standing-- and by a conventional stripping instrument removed from within the vein the tissue characteristic of this disorder. Multiple incisions were then made on the lower leg anteriorly, and localized varicose veins were removed and ligated. His leg then wrapped in a sterile towel, the patient was turned over on a sterile sheet and, again through a number of incisions, the varicose veins were stripped or removed. This accomplished, the incisions were closed; the groin by sutures internally, then stainless steel staples, and some 15 to 25 incisions at the knee and lower leg incisions by staples. Four-by-four sterile dressings were taped over the groin closure and 30 to 50 more gauze dressings were secured over the leg incisions, first by a sterile wrap of Kurlix gauze, then by a continuous self-adhering elastic bandage (Coban) wound snugly from above the toes to just above the knee. With prophylactic medication against thrombosis, the patient recovered uneventfully in the recovery room. On the day after surgery, October 9, Respondent Sayler examined the patient's groin incision and changed its dressing, but, in keeping with his practice in such cases, did not cut away and replace the elastic leg wrapping and dressings. Unless cause for earlier removal is indicated, Dr. Sayler prefers to maintain the self-adhering leg wrap as, in effect, a soft cast until the leg incision staples may safely be removed about 14 days after surgery. A follow-up visit to Respondent's office for that purpose was scheduled for Mr. Dahlke on October 22. In Dr. Sayler's opinion, the continuous light pressure of the elastic wrap encourages the return of blood in the leg circulatory system affected by the surgery; and he prefers to avoid disturbing the dressings over stapled incisions until enough healing is achieved for removal of the staples. The Respondent's preferred procedure of leaving the wrapping on the leg for approximately two weeks without removing it is one of several acceptable methods of care. An incision in the skin is more susceptible to infection than skin which has no cut in it. Thus, each of the 15 to 25 incisions on Mr. Dahlke's right leg was more susceptible to infection than uncut skin. The staples Respondent used to close the incisions penetrated the dermis and epidermis. Respondent used between 50 and 75 staples to close the numerous incisions on Mr.' Dahlke's right leg. When varicose vein surgery is done, there is nearly always a certain amount of oozing from the small incisions that are made. This can create a pool of blood which can become a good medium for bacterial cultures such as staphylococci. The foregoing notwithstanding, infections following varicose vein surgery are not very common and the infection suffered by Mr. Dahlke was a very rare type of infection for that type of surgery. Respondent authorized Mr. Dahlke's discharge from the hospital on the morning of October 10, 1981. Respondent did not visit Mr. Dahlke or examine his leg or groin on October 10, 1981. Respondent did, however, obtain information about Mr. Dahlke's progress, and condition from the hospital staff prior to authorizing his discharge. During the latter part of the first week following Mr. Dahlke's discharge from the hospital, his leg began to swell and he experienced pain. About a week after his uneventful discharge from the hospital on October 10, Mr. Dahlke telephoned Respondent's office with a complaint of pain and swelling in his leg. Pain and expressions of pain attending such surgery are normal and of ambiguous diagnostic significance. Mr. Dahlke's report of pain is not a big factor in this case. Respondent's responsive message to Mr. Dahlke was to elevate the leg, take his pain medicine, and call again if necessary. Dr. Dahlke did call again, and Respondent saw him at the office on short notice on Monday, October 19, 1981. Mr. Dahlke's complaints were recorded by Respondent's nurse as "leg swollen postoperatively" and by Respondent as "ankle pain" and "Right groin wound red & swollen past 3-4 days." Respondent closely examined the entire leg and ankle wrapping, verified good circulation to the toes, and recorded his impression of the ankle pain as "moderate," which is not atypical of such cases of multiple ankle incisions. There was no visible oozing through the leg bandage and there was no "foul odor" from the leg. Respondent did not unwrap the leg bandage on October 19, 1981. The contemporaneous office records of October 19, 1981, bearing an independent entry by Respondent's nurse as well as by Respondent, have no notation of stench or oozing bandages. Respondent uncovered the groin incision, which is more susceptible to infection than the other incisions, and observed what he recorded as "red indurated skin around groin wound." The skin around the groin wound was somewhat red, like a cellulitis, which is a mild infection of the skin. That kind of mild infection is not uncommon in that particular incision. Respondent removed the staples there and with a sterile Q-tip opened 2 cm. of the incision to see if there was any pus or sign of infection in the wound itself. Respondent did not see any pus in the wound and so noted in his records. As a precautionary measure, he inserted a small pad of antibacterial gauze to allow drainage if anything should develop at the site of the groin wound. He redressed the site and prescribed the antibiotic Ceclor in prophylactic oral dosages until the patient's scheduled reexamination three days thence. It was the skin surface around the wound, not the wound itself, that Respondent found to be mildly infected by cellulitis on the 19th. Respondent probed the wound itself because he suspected not so much infection as the possibility of infection. That groin incision was well removed both anatomically and by surgical relationship from the leg incisions. Dr. Sayler satisfactorily explained the questioned October 22 record entry of "less purulent." It meant, in context, "less infected-looking or less redness, less cellulitis" on the skin surrounding the wound itself, where no pus was seen. Mr. Dahlke returned to Respondent's office on October 22, 1981, for his scheduled appointment. During the office visit on October 22, 1981, the Respondent removed the bandage from Dahlke's right leg. This was the first time since the surgery had been performed on October 8, 1981, that Respondent had removed the leg bandage. When Respondent removed the bandage from Mr. Dahlke's leg, he discovered that the leg was seriously infected. The medical records maintained by Respondent concerning his treatment of Mr. Dahlke on October 22, 1981, show that when he removed the bandage from Mr. Dahlke's leg, he discovered infections of the wounds behind the knee and around the ankle. On October 22, 1981, there was also some sloughing of dead skin behind the knee. After discovering the infections in the leg, Respondent immediately arranged for Mr. Dahlke to be readmitted to Baptist Medical Center. Mr. Dahlke's infection was exceedingly rare; one not to be expected in the normal course. Mr. Dahlke did not have an elevated temperature on either his October 19 visit or his October 22 visit. An elevated temperature is a usual through not infallible sign of infection. The infection revealed by removing Mr. Dahlke's legwrap on October 22 was treated decisively. Respondent's care did not cause that infection, which was a Staphylococcus aureus resistant to Methicillin and peculiar to hospital environments. Fortuitously, the antibiotic Dr. Sayler administered prophylactically on October 19 was of the class that finally proved effective against Mr. Dahlke's infection. The sloughing of dead skin behind the kneecap did not result from infection at all; rather it was an ordinary surgical risk of local trauma in the superficial vein tissues. Finally, Respondent's discovery of Mr. Dahlke's leg infection on the 22nd, rather than the 19th, was not shown to have worsened the infection or complicated its treatment and eventual remission. If a patient is experiencing pain, swelling, oozing, and foul odor from the surgical site following vein stripping surgery, routine principles of care would require that the bandages be removed and the area examined. Respondent's actions were consistent with such routine. principles because he removed the bandages and examined the area the first time the patient appeared in his office with pain, swelling, oozing, and a foul odor, which was on October 22, 1981.
Recommendation On the basis of all of the foregoing it is recommended that the Board of Medical Examiners enter a final order dismissing the Administrative Complaint against Dr. Osbey L. Sayler. DONE AND ENTERED this 21st day of January, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2399 The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. Findings proposed by Petitioner Except as specifically noted below, all of the findings proposed by the Petitioner have been accepted either wholly or in substance. Paragraph 17: Rejected as subordinate and unnecessary detail. Paragraph 23: Rejected as not supported by competent substantial evidence and, in any event, as constituting irrelevant detail. Paragraph 26: Rejected as not supported by competent substantial evidence. Respondent's expert, Dr. Braze, testified to his personal procedures, but did not unequivocally state what is proposed in this paragraph. Paragraph 27: Rejected as irrelevant in light of other evidence. Paragraph 30: Although essentially true, this paragraph is rejected as irrelevant in light of other evidence; namely, Respondent's testimony (which is credited) that the groin bandage was removed on October 9, 1981, and changed. Paragraph 31: Rejected as contrary to the greater weight of the evidence. This is one of several points on which the testimony of the patient Dahlke conflicted with the testimony of the Respondent. In making my findings of fact I have resolved the vast majority, if not all, of such conflicts in the testimony in favor of the Respondent's version. In so doing I have taken into account a number of matters including, specifically, the fact that in general Mr. Dahlke did not appear to have a very good memory. He especially did not have a good memory for details, for dates, or for time relationships. Mr. Dahlke's version of events was often contradicted by other evidence that is not in dispute. Some of Mr. Dahlke's recollections were simply contrary to logic. In fairness it should be noted that I do not believe that Mr. Dahlke intended to be deceptive or misleading; to the contrary I believe he was doing his best to recount what he remembered, but that he simply did not have a very good memory after 5 years. In contrast to Mr. Dahlke's testimony, the Respondent appeared to have a good memory for details and was candid when his memory failed him. Further, the Respondent's version of events was logical and consistent with other evidence. Paragraph 32: Accepted with modifications in the interest of accuracy. Paragraph 36: Rejected as contrary to the greater weight of the evidence. (The greater weight of the evidence is that infections of the type suffered by Mr. Dahlke are very rare and that there is a difference in medical opinion as to how soon dressings should be removed.) Paragraph 38: The first two lines of this paragraph are accepted. The last line is rejected as contrary to the greater weight of the evidence. (See Transcript P. 72, lines 13 and 14.) Paragraphs 40 and 41: Rejected because this conclusionary proposed finding includes facts which are contrary to the greater weight of the evidence. Paragraph 43: Rejected as contrary to the greater weight of the evidence. (No odor or oozing was evident when Mr. Dahlke was seen on October 19, 1981.) Paragraphs 44, 45, and 46: Rejected as not supported by competent substantial evidence and as contrary to the greater weight of the evidence. (See the answer at Transcript P. 108, line 24; "could be" is quite different from "strong indication.") Paragraph 50: Rejected as contrary to the greater weight of the evidence and as not supported by persuasive competent substantial evidence. This is another point on which there is conflict between the testimony of Mr. Dahlke and the testimony of the Respondent. I have accepted the Respondent's version as the more credible of the two. Paragraph 52: Essentially true, but rejected as irrelevant in light of other evidence; namely, Respondent's testimony (which is credited) that he did examine Mr. Dahlke's leg and observed that there was no oozing and no odor. Paragraph 53: Rejected as not supported by competent substantial evidence and as contrary to the greater weight of the evidence. The finding proposed in this paragraph is broader than the testimony and broader than can be inferred by logic. Paragraph 54: Essentially true, but rejected as subordinate and irrelevant details. Paragraphs 55 and 56: Rejected as contrary to the greater weight of the evidence; I have found that Respondent did examine Dr. Dahlke's leg on October 19, 1981. Paragraph 57: Accepted with additional findings in the interest of clarity and accuracy. Paragraph 61: Accepted in substance with the "although" clause deleted and with additional findings in the interest of clarity and accuracy. Paragraph 62: Rejected because this conclusionary proposed finding includes facts which are contrary to the greater weight of the evidence. Paragraph 64: Rejected because this conclusionary proposed finding includes facts which are contrary to the greater weight of the evidence. Paragraph 66: Rejected as irrelevant and also because the proposed finding is a broader statement than the testimony upon which it is based. Paragraph 67: Rejected as not supported by persuasive competent substantial evidence in critical part and, therefore, also irrelevant. Paragraph 68: Rejected because this conclusionary proposed finding includes facts which are contrary to the greater weight of the evidence. Paragraphs 69, 70, and 71: Essentially accurate, but rejected as constituting subordinate and irrelevant details. Paragraph 72: Rejected as constituting argument rather than proposed findings of fact. In any event, the argument is irrelevant because I have credited Respondent's testimony on this point. Paragraph 75: Accepted through the first two lines and the first word on the third line. The remainder is rejected as contrary to the greater weight of the evidence. Paragraph 78: Rejected as contrary to the greater weight of the evidence. Paragraph 79: Rejected as contrary to the greater weight of the evidence. (See Transcript P. 169.) Paragraph 80: Rejected as contrary to the greater weight of the evidence. Paragraphs 82 and 83: Rejected as irrelevant. Paragraph 84: Rejected as not supported by competent substantial evidence and as irrelevant. Paragraph 85: Rejected as constituting argument for the most part, and as irrelevant. Paragraph 86: Rejected as not supported by persuasive competent substantial evidence and as irrelevant. Paragraphs 87 and 88: Essentially accurate, but rejected as irrelevant. Paragraph 89: Rejected as contrary to the greater weight of the evidence. Paragraph 90: Essentially accurate, but rejected as irrelevant. Findings proposed by Respondent Paragraphs 1, 2, 3, 4, 5, and 6: Accepted with a few minor modifications in the interest of clarity. Paragraph 7: The first four sentences of this paragraph are accepted with a few minor modifications in the interest of clarity and accuracy. The remainder of this paragraph is for the most part rejected as a proposed finding because it consists primarily of argument and summaries of testimony rather than proposed findings. (The arguments are essentially well taken, but they belong somewhere other than in the findings of fact.) Paragraph 8: Accepted in substance with deletion of specific references to testimony of Dr. Braze, which references are subordinate and unnecessary. Paragraph 9: Accepted with deletion of some subordinate and unnecessary comments. Paragraph 10: Rejected as a proposed finding because it consists primarily of argument, albeit argument about the evidence. Nevertheless, argument belongs somewhere other than in the findings of fact. I have addressed the issues raised by this and other arguments in the Conclusions of Law portion of this Recommended Order. Paragraph 11: The first three lines and the first word of the fourth line are accepted. The remainder of this paragraph is for the most part rejected as a proposed finding because it consists primarily of summaries of testimony and argument rather than proposed findings. Paragraph 12: This paragraph and its three subparts(a), (b), and (c), are all rejected as proposed findings because this paragraph and its subparts consist primarily of summaries of testimony and arguments about why that testimony should not be relied upon for findings of fact. This paragraph and its subparts might best be described as argument against making certain findings of fact. The argument is essentially well taken, but it belongs somewhere other than in the findings of fact. Paragraph 13: The third, fourth, fifth, and sixth sentences of this paragraph are accepted in substance, with some unnecessary material deleted. The remainder of this paragraph is rejected as findings of fact because it consists primarily of arguments. Paragraph 14: Accepted in substance with unnecessary editorial comments deleted. COPIES FURNISHED: Robert P. Smith, Jr., Esquire 420 Lewis State Bank Building Post Office Box 6526 Tallahassee, Florida 32314 David R. Terry, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings Slocum Benton, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue presented for decision in this case is whether Respondent should be subjected to discipline for the violations of Chapter 458, Florida Statutes, alleged in the Administrative Complaint issued by Petitioner on April 24, 1997.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Petitioner is the state agency charged with regulating the practice of medicine in the State of Florida, pursuant to Section 20.43, Florida Statutes, and Chapters 455 and 458, Florida Statutes. Pursuant to Section 20.43(3), Florida Statutes, Petitioner has contracted with the Agency for Health Care Administration to provide consumer complaint, investigative, and prosecutorial services required by the Division of Medical Quality Assurance, councils, or boards. At all times relevant to this proceeding, Respondent was a licensed physician in the State of Florida, having been issued license no. ME 00276678. At the time of Patient R.M.’s treatment, Respondent practiced orthopedic medicine. Respondent voluntarily ceased his orthopedic surgery practice in December 1994. He is currently employed as an assistant professor in the Department of Occupational Medicine at the University of South Florida College of Public Health. On July 28, 1993, Patient R.M., a 41-year-old female, presented to Respondent for an evaluation of right knee pain. Patient R.M. told Respondent that on November 1, 1992, she twisted her knee at home and heard a pop. Prior to this event, she had no knee problems. She told Respondent that she went to the emergency room at Brandon Hospital and was evaluated by the emergency room physician. The emergency room physician prescribed pain medication and placed her in a knee brace, gave her crutches, and advised her to see an orthopedic physician. Patient R.M. told Respondent that she had continued to experience swelling, occasional locking and giving-way of her knee over the intervening months. Respondent examined Patient R.M.'s right knee. He noted no obvious effusion or swelling, but did note tenderness over the medial joint line. Respondent noted that the right knee had a "full ROM" (range of motion), but his records did not quantify the patient's range of motion. Respondent noted a "markedly positive" McMurray's test. McMurray's test evaluates the stability of the knee meniscus. A positive McMurray's test is consistent with injury to meniscal structures. Respondent's records indicated that X-rays of the knee revealed no abnormalities. Respondent did not record the details of the X-rays, such as which planes were pictured or whether the X-rays were of the patella femoral joint or a standing lateral view of the knee. Respondent's records indicated to no examination or testing of the patella femoral joint. Dr. Harry Steinman, a board-certified orthopedic surgeon, opined that patella femoral problems can masquerade as meniscal problems in some situations, and that it is thus "mandatory" for the orthopedist to examine the patella femoral joint to rule it out as the locus of pathology. On the basis of his examination and Patient R.M.'s subjective complaints, Respondent's diagnostic impression was a tear of the medial meniscus, and his recommendation was an arthroscopic examination to evaluate and repair the tear. Respondent discussed his examination findings and treatment recommendation with Patient R.M. and explained the surgical procedure, including possible risks, complications, and alternatives. Patient R.M. subsequently signed a surgical consent form acknowledging that Respondent explained the necessity of the surgery, its advantages and disadvantages, its possible complications, and possible alternative modes of treatment. On August 6, 1993, Respondent performed an arthroscopic repair of the meniscus of Patient R.M.'s right knee. Respondent placed two sutures within the body of the meniscus, attaching it to the posterior medial capsule. Respondent made a second incision in the posterior medial aspect of the right knee. The posterior incision allowed Respondent to expose the capsule of the knee joint so that he could directly view the sutures as he passed them from the inside to the outside of the knee capsule, where he tied down the sutures and repaired the torn meniscus. This direct visualization was designed to ensure that any neurovascular structures were not impinged by the sutures. On August 11, 1993, Patient R.M. returned to Respondent for her first post-surgery examination. Respondent noted that the patient seemed to be doing well and her wounds were healing without difficulty. Respondent prescribed a Bledsoe brace, an articulated brace that allows for various ranges of motion, and advised Patient R.M. that she could begin partial weight-bearing with the use of crutches. Respondent advised Patient R.M. to return in three weeks for re-evaluation. Less than two weeks later, on August 23, 1993, Patient R.M. returned, complaining of numbness on the medial side of her right calf. On this visit, Patient R.M. was examined by Respondent's partner, Dr. Stuart Goldsmith, not Respondent. Dr. Goldsmith noted no effusion, redness, inflammation, or signs of infection. Dr. Goldsmith noted that Patient R.M. was wearing the Bledsoe brace "significantly tight," which could explain the numbness in the medial side of her calf. He advised the patient to loosen the straps on the brace, continue with range of motion exercises, and return to see Respondent in one week. Patient R.M. understood and agreed with Dr. Goldsmith's advice, and indicated she would return in one week. On September 1, 1993, Patient R.M. returned to Respondent for evaluation. She complained of decreased sensation along the medial side of her calf. Respondent noted that his evaluation revealed "what I determine to be almost normal sensation." Respondent also noted that he wondered whether Patient R.M. had a little irritation of the infrapatellar branch of the saphenous nerve at the site of the anterior medial stab wound. Respondent recommended that Patient R.M. begin range of motion exercises without the Bledsoe brace and commence physical therapy. He advised her to return in three to four weeks for re-evaluation. Patient R.M. returned two weeks later, on August 15, 1993, complaining that she heard a pop in the knee the night before. She told Respondent that she had not commenced physical therapy, but had been doing quite well prior to hearing the pop. Respondent noted that "sensation has apparently returned to normal." Respondent noted some tenderness along the medial aspect of the knee joint. He noted no effusion and a full range of motion, though again his records did not quantify the range of motion with numeric values. Respondent concluded that Patient R.M. had pulled apart some mild scar tissue, and again recommended commencement of physical therapy. He advised her to return in about one month for re-evaluation. On October 11, 1993, Patient R.M. returned to Respondent for evaluation. She continued to complain of decreased sensation along the anterior medial aspect of her right calf. She told Respondent that she had sensation, but that it was "different." Respondent noted that he wondered if the cause of this complaint might be that a portion of the infrapatellar branch of the saphenous nerve was nicked during surgery. Patient R.M. complained of pain extending from the inferior pole of her patella distally. Respondent noted that this pain was alleviated by bringing the patella medially, and that he had ordered a brace that he hoped would offer relief. Respondent advised Patient R.M. to continue therapy at home and to return in a couple of months. Patient R.M. never returned to Respondent's office. On November 16, 1993, Patient R.M. presented to Dr. John Okun, an orthopedic surgeon, for a second opinion. Dr. Okun took her history and performed an examination, including pinprick and light touch tests, and Tinel's sign, which indicates irritability of a nerve. Respondent testified that he had also performed these tests, but did not note them in his records. Dr. Okun suspected that a branch of the saphenous nerve had either been transected or caught in a suture during Respondent's operation, and believed that Patient R.M. would be best served by an exploration of the posterior aspect of the knee to see if anything could be done to restore nerve function. Dr. Okun noted that he discussed the situation at length with Patient R.M., advised her of the options, and received her assurance that she would consider the options and call him with any problems or changes. On December 3, 1993, Dr. Okun performed a surgical exploration of the nerve. He identified a loop of suture wrapped around the saphenous nerve. He removed the suture and freed the tissues surrounding the nerve. Dr. Okun followed Patient R.M.'s progress until March 1995. She generally reported improvement, but continued to complain of paresthesia and showed positive Tinel's signs in her lower leg. On March 8, 1994, Dr. Okun noted persistent nerve symptoms, and further noted that this was not surprising considering the degree of nerve compression. On May 5, 1994, Dr. Okun noted probable permanent damage to the nerve, but advised waiting another six months to one year before concluding that she had reached maximum improvement. Dr. Okun testified that, during his course of treatment, he never identified a significant patella tracking problem with Patient R.M. Dr. Okun also testified that Patient R.M. had a definite medial meniscus tear, and that "it looks like it was repaired fine" by Respondent's arthroscopic procedure. Dr. Steinman agreed at the hearing that there was a tear of the medial meniscus, and noted that Patient R.M. no longer complained of swelling, giving-way, or locking after the arthroscopic procedure. The evidence at hearing established that the surgical procedure performed by Respondent was within the standard of care. Respondent repaired a tear of the medial meniscus. The experts agreed that impingement of the saphenous nerve by a suture is a known and relatively common complication of the procedure performed by Respondent, despite the precaution of making an incision in the posterior aspect of the knee to visualize the posterior capsule. The experts further agreed that such impingement of the nerve during this procedure does not, of itself, establish that Respondent failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Petitioner's allegations thus relate to Respondent's actions prior to and after the surgical procedure itself. The Complaint alleges that, prior to surgery, Respondent failed to perform an appropriate initial examination, failed to appropriately diagnose Patient R.M.'s condition, and failed to attempt conservative therapy prior to performing surgery. Dr. Steinman testified that Respondent should have examined the patella femoral joint in order to rule that out as a cause of the patient's symptoms. While conceding that Patient R.M.'s symptoms were all consistent with meniscal pathology, and that Respondent arrived at the correct diagnosis, Dr. Steinman opined that the patient was entitled to a full examination irrespective of the final outcome, and that the standard of care required an examination of the patella femoral joint. Dr. Steinman's testimony is credited on this point. However, the impact of his critique is lessened by that fact that Respondent's diagnosis was correct, the fact that Dr. Richard Goldberger examined the records and concluded that the patient was not suffering from a patella femoral joint problem, and the fact that Dr. Okun, who actually treated Patient R.M. for more than a year, also found no reason to believe that Patient R.M. had a patella tracking problem. Dr. Goldberger further observed that Patient R.M.'s only complaint regarding patellar pain was made after the surgery, not before. Under the circumstances, the worst that can be said of Respondent is that he went directly to the true cause of Patient R.M.'s complaint without affirmatively ruling out another possible cause. The evidence established that Respondent discussed a conservative course of therapy with Patient R.M. The evidence also established that a conservative course of therapy would have accomplished no tangible improvement in the tear of the medial meniscus. Dr. Richard Goldberger testified that physical therapy was not indicated for this patient. Dr. Goldberger testified that the only reason he would recommend physical therapy in this situation would be for the peace of mind of the patient, to assure a reluctant candidate for surgery that all conservative avenues had been exhausted. Even Petitioner's expert, Dr. Steinman, agreed that he would have discussed arthroscopy with the patient after the first visit, given her stated history and examination results. Dr. Steinman testified that after the initial examination, he would not have been convinced the patient had a meniscal tear, and would have recommended other treatments to confirm the diagnosis. However, he also stated that if Respondent was firm in his diagnosis of a meniscal tear, then diagnostic arthroscopy is what orthopedic surgeons generally would recommend. Respondent noted that Patient R.M.'s right knee showed a normal range of motion, though he did not note numeric values for the range of motion. This was not a deviation from the standard of care because loss of range of motion was not related to Patient R.M.'s pathology. Under the circumstances, it was sufficient for Respondent to note that range of motion was observed and found to be normal. Respondent failed to describe the X-rays he examined in reaching his diagnosis. Again, this was not a deviation from the standard of care because the information to be found in an X-ray was unrelated to the soft tissue injury that Respondent diagnosed in Patient R.M. Under the circumstances, it was sufficient for Respondent to note that X-rays were taken, examined, and found to be normal. In summary, Petitioner failed to establish by clear and convincing evidence that Respondent failed to meet the standard of care as regards his pre-operative treatment of Patient R.M. As to post-operative care, Petitioner alleges that Respondent failed to perform testing on the saphenous nerve when Patient R.M. complained of medial side numbness in the lower right leg, and failed to refer Patient R.M. to a neurologist for evaluation of a possible saphenous nerve injury. As noted above, Respondent employed a surgical technique by which he made a posterior incision in the knee, exposed the knee capsule, passed the suture from the inside to the outside of the knee, tying the suture under direct visualiztion. Respondent contended that use of this technique allowed him reasonably to assume that no injury to the saphenous nerve had occurred due to a suture being tied directly on it. This assumption explains why Respondent's post-surgery notes record his suspicions of a problem with the infrapatellar branch of the saphenous nerve. Respondent's technique would not have allowed him to observe an injury to the infrapatellar branch, because that injury would have occurred during placement of the surgical port on the medial aspect of the knee. Dr. Steinman testified that Respondent's observations were inconsistent with Patient R.M.'s complaints. He stated that the infrapatellar branch comes off the medial kneecap and travels in a medial to lateral direction. If the infrapatellar branch was interrupted, the area of numbness or abnormal sensation would have been on the lateral aspect of the patella, whereas the patient's complaints were along the anterior or medial aspect of the calf and ankle, outside the autonomous area of this nerve. Dr. Steinman testified that Patient R.M.'s complaints could lead only to the conclusion that the sartorial branch of the saphenous nerve had been jeopardized in some way. Dr. Steinman observed that Respondent appeared aware that there was a nerve problem, but that he was in error as to which nerve. Dr. Steinman testified that Respondent should have commenced some form of testing for a saphenous nerve problem no later than the October 11, 1993, visit, when she reiterated her complaints of decreased sensation along the medial aspect of her right calf and Respondent noted for the second time his suspicions regarding a saphenous nerve problem. Dr. Okun testified that if he had performed a meniscus repair and the patient presented these symptoms, he would probably have gone back into the knee and tried to snip the suture or at least explore the incision. However, he also testified that if he were comfortable that he had done everything properly and there was not a very high chance that he had trapped a nerve, he would wait for a period of three to six months to see if the problem would resolve on its own. Dr. Okun was unsure whether a definite standard of care could be stated for this situation. Dr. Okun also testified that whatever damage the nerve sustained was probably done at the time of the initial surgery, and would not get worse from having the constriction of the suture around it. He stated this was another reason why he might wait to perform a second procedure. Dr. Steinman strongly disagreed that the surgeon's degree of confidence in his work should play any role in his post-surgical treatment. The fact that the patient has complained of symptoms in a problematic area is evidence enough that there may be a problem, particularly where the complication is as common as this one, regardless of the surgeon's conviction that his suture missed the nerve. Dr. Goldberger testified that Respondent met the standard of care. Respondent was aware of the complaints of numbness and mentioned them and their severity in his notes. Dr. Goldberger stated that the saphenous is a sensory nerve and is not considered vital. Because the nerve has no motor function, the physician must rely on the subjective complaints of the patient regarding the symptoms. Some patients accept the symptoms and do not feel they are impaired by them. Dr. Goldberger testified that it was reasonable for Respondent to observe the patient's clinical course and pay attention to her complaints, without taking aggressive action. The weight of the evidence leads to a finding that Respondent might have been more aggressive in treating what he suspected was a saphenous nerve problem, and might have referred Patient R.M. to a neurologist to rule out a systemic problem, but that Respondent did not clearly deviate from the standard of care in choosing a more conservative course or failing to make a referral. Dr. Steinman severely criticized Respondent's post- surgical records in their failure to thoroughly document the sensory tests that Respondent testified he performed on Patient R.M. Respondent was not charged with failure to maintain adequate medical records. Thus, it is not necessary to address the merits of Dr. Steinman's critique of Respondent's medical records.
Recommendation Upon 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 April 24, 1997, Administrative Complaint against the Respondent, Steven A. Field, M.D. DONE AND ENTERED this 6th day of July, 2000, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 2000. COPIES FURNISHED: John E. Terrel, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Christopher J. Schulte, Esquire Shear, Newman, Hahn, Rosenkranz, P.A. 201 East Kennedy Boulevard, Suite 1000 Post Office Box 2378 Tampa, Florida 33601-2378 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
The Issue The issue is whether Respondent is guilty of performing wrong-site surgery or performing a procedure without the patient's consent and, if so, what penalty should be imposed.
Findings Of Fact At all material times, Respondent has been licensed as a physician in the state of Florida. His license number is ME 85786. Respondent is Board-certified in anesthesiology and pain management by the American Board of Anesthesiology. Respondent has not previously been disciplined by the Board of Medicine. Patient K. D. suffered a back injury in November 1998. Following a laminectomy, Patient K. D. continued to suffer from chronic low-back pain. She visited Respondent's pain management clinic for pain relief and has been quite satisfied with the treatment that she has received from Respondent. On February 14, 2003, one of Respondent's partners performed a right-side lumbar rhizotomy by pulsed radiofrequency. The purpose of this procedure is to relieve or eliminate pain in the lower back. When performed by pulsed radiofrequency, the rhizotomy would probably not have been successful if the patient still experiences pain two weeks after the procedure. Two weeks later, on February 28, Patient K. D. presented for a left-side lumbar rhizotomy, which Respondent was to perform. Immediately prior to the surgery on February 28, while Patient K. D. was in pre-op, Respondent performed a physical examination and observed that Patient K. D. indicated pain on the right side. In response to questioning, Patient K. D. confirmed that her right side was more painful than her left side. Respondent said that he would therefore perform a right-side lumbar rhizotomy. Patient K. D. did not disagree or object, but consented to the procedure--in the presence of two nurses, as well as Respondent. Immediately after their pre-op discussion, Patient K. D. was administered Versed, which produces an effect of amnesia. To some extent, this drug may cause some retrograde amnesia, so that Patient K. D. might not recall events immediately preceding the administration of the drug, such as her physical examination and conversation with Respondent in pre-op. Respondent performed a right-side lumbar rhizotomy without incident. However, immediately after the procedure, Patient K. D. said that she also suffered left-side pain and questioned why Respondent had performed the procedure on her right side. When Patient K. D. complained that transportation problems would make it hard for her to re-schedule a left-side procedure, Respondent performed a left-side procedure, on the same day, and he completed this procedure also without incident. Prior to the February 14 and 28 procedures, Patient K. D. signed consent forms. The consent form for the February 14 procedure identifies a right-side procedure, and the consent form (actually, there are two identical forms) for the February 28 procedure identifies a left-side procedure. The forms state: It has been explained to me that during the course of an operation, unforeseen conditions may be revealed that necessitate an extensive exchange or change of the original procedure or different procedures, and I therefore authorize and require my physician or surgeon . . . to perform such surgical procedures as are necessary and desirable in the exercise of his and/or their professional judgement. . . . Petitioner's expert witness opined that a change in location, even under the above-described circumstances, "should" have been documented on a consent form, but later conceded that this is not strictly necessary. On cross-examination, Petitioner's expert witness admitted that a patient may give informed consent verbally or by conduct. Petitioner's expert witness properly discredited Respondent's theory that he had some form of ongoing consent because the forms bore no expiration date. However, to the limited extent that Petitioner's expert witness implied a requirement for written informed consent, his opinion is unsupported by Florida law, as set forth below. In contrast to Petitioner's expert witness, Respondent's expert witness did not equivocate on the issue of the required form of informed consent. Relying largely on the testimony of Patient K. D., Respondent's expert witness testified that Respondent had obtained the informed consent of Patient K. D. to perform a second right-side procedure. Aside from the obvious advantages of a written informed consent, Respondent's expert witness convincingly testified that informed consent is a state of mind, not a signature on a piece of paper, and, by this standard, which is consistent with Florida law, as set forth below, Respondent had Patient K. D.'s informed consent to perform a second right-side procedure on February 28 and thus had been duly authorized to do so.
Recommendation It is RECOMMENDED that Petitioner dismiss the Administrative Complaint, as amended, against Respondent. DONE AND ENTERED this 21st day of November, 2005, in Tallahassee, Leon County, Florida. S _ ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2005. COPIES FURNISHED: Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Irving Levine Assistant General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Dennis A. Vandenberg Peterson Bernard 1550 Southern Boulevard West Palm Beach, Florida 33406
The Issue Whether Daniel Espinoza has suffered an injury for which he and his mother, Maria L. Espinoza, should be awarded compensation under the Florida Birth-Related Neurological Injury Compensation Plan, as Ms. Espinoza has alleged in her claim for compensation filed on behalf of Daniel?
Findings Of Fact Based upon the evidence adduced at the July 14, 1994, Division-conducted hearing in this case, and the record as a whole, the following Findings of Fact are made: Daniel Espinoza is the natural son of Petitioner. He was born on January 6, 1991, at Jackson Memorial Hospital (hereinafter referred to as "Jackson") in Dade County, Florida. Daniel was the product of a full term pregnancy. His birth weight was in excess of 2500 grams. Daniel was delivered by Erin Colleen Dawson, M.D. At the time of Daniel's birth, Dr. Dawson was a participant in the Florida Birth-Related Neurological Injury Compensation Plan. The delivery was uneventful. Daniel was a "vigorous" baby at birth. He had a "good" Apgar score of 9 at one, five, and ten minutes after birth. There was no resuscitation required in the immediate postdelivery period. Approximately five hours after the initial evaluation, Daniel appeared to be "grunting" and suffering from "cyanosis." As a result, he was transferred to Jackson's neonatal intensive care unit, where he had a seizure and experienced respiratory distress. Daniel's C.S.F. (cerebrospinal fluid) was bloody and had a white blood cell count of 19000. An initial diagnosis of meningitis was made. On January 7, 1991, an EEG (electroencephalogram) was done. It revealed "no epileptiform phenomena." A CT (computerized tomography) scan of Daniel's brain was performed on January 8, 1991. The report of the scan read as follows: HISTORY- TWO DAY OLD WITH SEPSIS. 5 MM AXIAL SECTIONS WERE OBTAINED THROUGH THE BRAIN WITHOUT CONTRAST. THERE IS A SMALL LUCENT DEFECT IN THE LEFT OCCIPITAL BONE SEEN ON IMAGE #5. ALTHOUGH NO SOFT TISSUE SWELLING IS SEEN, CANNOT DEFINITELY EXCLUDE THIS BEING A LINEAR NONDEPRESSED FRACTURE VERSUS OTHER ETIOLOGY SUCH AS A VASCULAR GROOVE. WE SUGGEST CORRELATION WITH THE PLAIN FILM. THERE IS A HUGE AMOUNT OF BLOOD IN THE RIGHT POSTERIOR FOSSA EXTENDING ACROSS THE MIDLINE AND INSINUATING ON THE RIGHT TENTORIAL INCISURA SUPRATENTORIALLY. BLOOD IS ALSO SEEN ALONG THE POSTERIOR INTERHEMISPHERIC FISSURE DIFFUSELY IN THE EXTRA-AXIAL SPACE, AND A SMALL AMOUNT OF BLOOD IN THE OCCIPITAL HORNS OF THE LATERAL VENTRICLES. WITH SUCH A TREMENDOUS AMOUNT OF BLOOD PRESENT IN THE POSTERIOR FOSSA, IT IS DIFFICULT TO SAY HOW MUCH IS PARENCHYMAL VERSUS EXTRA-AXIAL. THERE IS MASS EFFECT UPON THE MID BRAIN PONS AND MEDULLA AND ON THE FOURTH VENTRICLE CAUSING OBSTRUCTING HYDROCEPHALUS. IMPRESSION LARGE ACUTE INTRACRANIAL HEMORRHAGE, AS DESCRIBED ABOVE, WITH THE EPICENTER BEING IN THE RIGHT POSTERIOR FOSSA. THE DIFFERENTIAL DIAGNOSIS INCLUDES NEOPLASM, TRAUMA, RUPTURED ANEURYSM OR ARTERIOVENOUS MALFORMATION, COAGULOPATHY, ETC. CONTRAST STUDY OR MRI MAY BE OF HELP FOR FURTHER EVALUATION TO TRY TO DETERMINE THE UNDERLYING ETIOLOGY. On January 9, 1991, Daniel underwent an echoencephalogram, which, according to the report of the study, indicated the following: ROUTINE ECHOENCEPHALOGRAM REVEALED DILATION OF THE LATERAL AND THIRD VENTRICLES. THERE IS A BILATERAL LUMPY CHOROID PLEXUS NOTED. ADDITIONAL TRANSTEMPORAL VIEWS REVEAL AN ECHOGENIC AREA SEEN IN THE INFRATENTORIAL REGION, WITH INCREASE IN THE ECHOGENICITY OF THE BASAL CISTERNS. THE FINDINGS ARE SIMILAR TO THOSE SEEN ON PREVIOUS CT SCAN, WHICH SHOWED EVIDENCE OF A CEREBRAL HEMORRHAGE WITH SUBARACHNOID BLEED. THE NORMAL STRUCTURES OF THE POSTERIOR FOSSA ARE ILL-DEFINED. IMPRESSION: MODERATE HYDROCEPHALIC CHANGES OF THE LATERAL AND THIRD VENTRICLES. SUBARACHNOID HEMORRHAGE WITH A POSTERIOR FOSSA HEMORRHAGE, AS DESCRIBED IN A PREVIOUS CT SCAN OF THE BRAIN. Another CT brain scan was performed on January 23, 1994, the report of which stated the following: THE PATIENT IS A TWO WEEK OLD MALE WITH A HISTORY OF INTRACRANIAL HEMORRHAGE. AXIAL IMAGES WERE OBTAINED THROUGH THE BRAIN AT 5MM INTERVALS FOLLOWING INTRAVENOUS ADMINISTRATION OF CONTRAST. COMPARED TO THE PRIOR STUDY OF 1-8-91, THERE HAS BEEN SUBSTANTIAL RESORPTION OF BLOOD IN THE REGION OF THE SUBDURAL, SUBARACHNOID AND INTRAVENTRICULAR HEMORRHAGE. THERE ALSO HAS BEEN MARKED DECREASE IN THE VENTRICULAR SIZE. THERE IS LESS ASSOCIATED MASS EFFECT, ESPECIALLY IN THE POSTERIOR FOSSA WITH PERSISTENT SUBDURAL HEMORRHAGE IN THE RIGHT SIDE OF THE POSTERIOR FOSSA DISPLACING THE CEREBELLUM ANTERIORLY AND TO THE LEFT. THE FOURTH VENTRICLE IS NOW VISUALIZED, HOWEVER. NO NEW AREAS OF HEMORRHAGE ARE SEEN. THERE ARE NO BONY ABNORMALITIES. THE MAXILLARY AND ETHMOID SINUSES AND MASTOID AIR CELLS ARE CLEAR. IMPRESSION SIGNIFICANT RESORPTION OF SUBDURAL, SUBARACHNOID WITH INTRAVENTRICULAR HEMORRHAGE SINCE THE PRIOR STUDY OF 1-8-91 WITH LESS MASS EFFECT, ESPECIALLY UPON THE CEREBELLUM AND BRAIN STEM. MARKED DECREASE IN VENTRICULAR SIZE HAS ALSO OCCURRED. On January 25, 1991, Daniel underwent a second echoencephalogram, the report of which read as follows: FOLLOW-UP BRAIN HEMORRHAGE. COMPARISON IS MADE TO PREVIOUS STUDY FROM 1/8/91. THERE HAS BEEN MARKED INTERVAL RESOLUTION OF THE PREVIOUSLY DEFINED RIGHT POSTERIOR FOSSA HEMORRHAGE. IN ADDITION, THE VENTRICULAR SIZE HAS DECREASED SIGNIFICANTLY SINCE THE PREVIOUS EXAM. THERE CONTINUES TO BE SLIGHT INCREASED ECHOGENICITY WITHIN THE SYLVIAN FISSURES BILATERALLY, WHICH MAY REPRESENT SOME RESIDUAL SUBARACHNOID HEMORRHAGE. NO EVIDENCE OF NEW OR ACUTE HEMORRHAGE IS IDENTIFIED. IMPRESSION: THERE HAS BEEN SIGNIFICANT INTERVAL IMPROVEMENT IN THE DEGREE OF VENTRICULAR DILATION AND THE PREVIOUSLY DEFINED HEMORRHAGE, WHEN COMPARED TO THE STUDY OF 1/8/91. Daniel was discharged from Jackson on January 31, 1991. At present, in terms of meeting expected language milestones, Daniel is mildly delayed, primarily in the area of expressive language. The delay is developmental in nature and Daniel will likely improve in this area over time. Otherwise, his mental functioning is relatively well preserved. Physically, Daniel is only very mildly impaired. He has a slight decrease in muscle tone and some incoordination, but he does not suffer from spasticity or contracture and he is able to move both of his arms well and to walk without losing his balance. He is even able to run, although he has a tendency to lean to the right and appear as if he is about to fall when he does so. In short, Daniel suffers from no permanent and substantial mental or physical impairment. 2/
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaints?
Findings Of Fact Respondent Patrick J. McCarthy has practiced obstetrics and gynecology in Tallahassee, Florida, since 1976. He "qualified as a doctor in 1958" (T.215) at the University of Wales, did residencies in Canada, including three years in obstetrics and gynecology at McGill University, and practiced in New Hampshire, before coming to Florida, where he is duly licensed to practice. Board certified here and abroad, Dr. McCarthy now delivers 200 to 250 babies a year. Over his career, he estimates, he has delivered 7,000 to 8,000 infants. T.225. In 1981, he "recertified in obstetrics and gynecology in the American boards." T.236. C.H. On November 1, 1984, Dr. McCarthy admitted C.H., a 23-year old mother of one whom he had been seeing in his office during her second pregnancy. Labor had begun shortly after midnight, about five hours before C.H. arrived at the hospital. At quarter past six that morning, when C.H.'s cervix had dilated to a diameter of seven or eight centimeters, respondent did not accede to C.H.'s request for epidural anesthesia. At 6:36 a.m., however, C.H. received Demerol and Phenergen, medicines Dr. McCarthy ordered, and later got local anesthesia, a "pudendal block" designed to numb the area in which an episiotomy was eventually performed. Four minutes later C.H. was taken to the delivery room. C.H.'s cervix was fully dilated by ten of seven. At 6:58 a.m., Dr. McCarthy applied a vacuum extractor, but he did not succeed in delivering the baby's head until 7:20, after he had resorted to low forceps. His head out, the baby's shoulder lodged behind his mother's pubic symphysis. All ten pounds and seven ounces were stuck. Once the head is delivered, the rest of the baby should be delivered within five or six minutes to avoid the risk of damaging or losing the child. The umbilical cord's function can be compromised if it is pinched between the baby and strictures in the birth canal. At this point, Dr. McCarthy performed what he called a Wood's maneuver. Wood's maneuver, also known as the corkscrew maneuver, was unquestionably acceptable practice at the time, if properly performed "by applying pressure on the back of the [baby's] shoulders." T.134. Currently the preferred initial response to shoulder dystocia is to bend and raise (if she is supine) the mother's legs to reposition the pubes. Named after a Dr. McRoberts, this approach was used in Tampa in 1984, but was apparently unknown to Dr. McCarthy at that time. In describing C.H.'s baby's birth, which took place at 7:23 on the morning of November 1, Dr. McCarthy wrote in the chart: "Marked shoulder dystocia -- shoulders rotated through 180o." Joint Exhibit No. 1. Later, asked about these events while under oath, he answered: I rotated the head and shoulders. Q. How did you do that? A. Thats called -- it's a thing called Wood's maneuver, where you are using -- you rotate the head so that the shoulders will follow it. The posterior shoulder then comes under the symphysis of the pubic. It's lower than the anterior. When you have that, then you have the baby up. Q. And in that process do you place a downward pull on the baby's head? A. No, you rotate. . . . Q. From the process of this delivery was there any injury to this baby? A. Yes, the baby had a brachial plexus palsy. Q. How did the brachial plexus palsy occur? A. Presumably when I turned the head, it stretched the nerves in the brachial plexus at the base of the neck. Q. That would have been when you turned the head in the last maneuver that you attempted or would that have been in the first maneuver when you are pulling down on the head? A. Usually when you turn the head. Q. In this case do you know when the injury occurred? A. Usually it happens when you turn the head. It's a twisting motion, because this is the greatest stretch motion. Petitioner's Exhibit No. 2, pp. 51-3. Dr. McCarthy's testimony at hearing that he did not turn the baby's head (except by turning the baby's shoulders) in performing what he called a Wood's maneuver has not been credited. Whether or not (as Dr. McCarthy assumed) the twisting caused the brachial plexus palsy with which the child is afflicted, rotating the baby's head "so that the shoulders w[ould] follow it" was a departure from minimally acceptable practice. On this point, every expert who testified was in agreement. The records do not indicate whether C.H. was catheterized before her delivery. Presumably she was not, but petitioner did not allege and the evidence did not show that she needed a urinary catheter. Petitioner did not establish any dereliction on respondent's part in his keeping of records on C.H. or her delivery, aside from the elliptic description he gave of his rotary manipulation. M.B. Before the day she was delivered, M.B. had been under the care of M. J. Moreton, M.D., who was apparently unavailable at twenty past eleven o'clock on the morning of October 9, 1984, when M.B., then the 28-year-old mother of one child, arrived at Tallahassee Memorial Regional Medical Center. Irregular contractions had begun earlier that morning, and persisted until that afternoon, when Dr. McCarthy, who had undertaken M.B.'s care, directed that she be given a drug "to get her into good labor." Joint Exhibit No. 2. The drug to induce regular contractions was administered at four o'clock. She received epidural anesthesia at intervals. Vomiting, begun at ten o'clock that night, a half hour before her cervix was fully dilated, interfered with M.B.'s ability to push. Sporadically, the fetal monitor indicated pulse rates as low as 70. Dr. McCarthy used a vacuum extractor to deliver the baby's head, and encountered shoulder dystocia. At hearing, Dr. McCarthy recounted his use of a procedure called Hibbald's maneuver, one of a number of accepted techniques for dealing with shoulder dystocia: . . . I told the nurse to apply fundal and suprapubic pressure and I grasp[ed] the head and pulled it down approximately a forty-five degree angle . . . I was applying moderate traction to the head and the baby delivered. T.258-9. Two or three minutes after the delivery of the head, M.B.'s baby was born at 10:47 p.m. on October 9, 1984. "The only unusual thing about the baby, apart from the brachial plexus palsy, was that there was a cord around the shoulder," (T.259) presumably the cause of the intermittently depressed fetal pulse rate. Dr. McCarthy acknowledged that he "could have used many maneuvers," (T.260) other than Hibbald's. He ascribed his exclusive use of Hibbald's maneuver to the shortness of the time it took to deliver the baby. At some point, reliance on a technique that is not succeeding, to the exclusion of others that might dislodge a baby without causing brachial plexus palsy, a known complication of shoulder dystocia, falls below minimally acceptable standards of practice. During the two- or three-minute interval between delivery of the baby's head and extrication of his shoulder, Dr. McCarthy "checked the baby to see if there was a cord around the neck," (T.261) and suctioned fluid from the baby's nostrils. The evidence did not clearly show how long he applied traction before the baby was delivered. An expert testifying for petitioner said that a patient with epidural anesthesia "in general is unable to void . . . and . . . the bladder can enlarge . . . and can interfere . . . [so that] it's good obstetrics, before performing a forceps or vacuum delivery to catheterize. . . ." T.55. But there was no testimony that failure to catheterize fell below minimally acceptable standards, nor any testimony to establish M.B.'s particular circumstances. The evidence established no deficiencies in respondent's recordkeeping with regard to M.B. or her delivery.
Recommendation Although later adopted and, therefore, not determinative, see Willner v. Department of Professional Regulation, 563 So.2d 805 (Fla. 1st DCA 1990), Rule 21M-20.001(2)(t), Florida Administrative Code, specifies penalties for violating Section 458.331(1)(t), Florida Statutes (1991), ranging from two years' probation to license revocation, together with a fine of $250 to $5000, depending on aggravating and mitigating circumstances set out in Rule 21M- 20.001(3), Florida Administrative Code. Upon consideration of the foregoing findings and conclusions, and the length of time that has elapsed since the birth of C.H.'s baby, it is RECOMMENDED: That the Board of Medicine place respondent on probation for a period of five (5) years, on condition that he attend a minimum of thirty (30) hours per year of category I continuing medical education courses, including, within the first ninety (90) days of probation, ten (10) hours of courses on how to manage shoulder dystocia; and on further condition that he perform 250 hours of community service under the auspices of the county health department, if needed, during each year he is on probation; provided, however, that the question of penalty be reopened, in the event respondent fails to abide by the conditions of probation or to make reports to the Board on or before the tenth day of each month, reflecting compliance with the conditions of probation. DONE and ENTERED this 4th day of February, 1993, at Tallahassee, Florida. ROBERT T. BENTON, II, 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 4th day of February, 1993. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, both 17s, the first 18 and 19 regarding C.H. and Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, and 16 regarding M.B. have been adopted, in substance, insofar as material. With respect to petitioner's proposed findings of fact Nos. 16 and the second 18 regarding C.H., respondent unquestionably exposed the baby to the risk of serious injury, and more than likely caused the brachial plexus palsy. With respect to petitioner's proposed findings of fact Nos. 12, 18, 19, 20, 25 and 27 regarding M.B., Dr. Brauner's testimony that persisting with Hibbald's maneuver for longer than 60 seconds would fall below minimally acceptable standards has been credited, but the evidence was not clear and convincing as to the exact length of time Dr. McCarthy applied traction. Petitioner's proposed findings of fact Nos. 17, 22, 26, and 28 and 29 regarding M.B. pertain to subordinate matters. With respect to petitioner's proposed findings of fact Nos. 21 and 23 regarding M.B., the evidence did not clearly and convincingly establish that respondent's use of the Hibbald maneuver caused the brachial plexus palsy, although it is entirely possible that it did. With respect to petitioner's proposed finding of fact No. 24 regarding M.B., the evidence showed that Dr. McCarthy intervened to accelerate delivery of the head, but his deployment of the vacuum extractor was not alleged to have been below standards, and may well have been justified by the intermittently depressed pulse the baby exhibited and the mother's difficulty pushing. Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 10, 12, 14, 15, 20, 27, 28, 29, 30, 31, 32, 37 and 40 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 5, C.H. arrived at the hospital before 5:45. Respondent's proposed findings of fact Nos. 6, 7, 8, 9, 11, 17, 18, 22, 33 and 34 pertain to matters that are subordinate or immaterial altogether. With respect to respondent's proposed finding of fact No. 13, Wood's maneuver requires pressure on the shoulders, not the head. With respect to respondent's proposed finding of fact No. 16, use of the vacuum extractor preceded knowledge of the shoulder dystocia. With respect to respondent's proposed findings of fact Nos. 19 and 21, he did not perform the maneuver properly. With respect to respondent's proposed finding of fact No. 23, the "clarification" has not been credited. With respect to respondent's proposed findings of fact Nos. 24 and 25, the obstetrician does not have discretion to fail to meet minimum standards. With respect to respondent's proposed finding of fact No. 26, the precise etiology of the brachial plexus palsy was not established. With respect to respondent's proposed findings of fact Nos. 35, 36, 38, 39, and 41, petitioner failed to prove clearly and convincingly that respondent's management of the shoulder dystocia in M.B.'s case fell below standards, but neither did the evidence establish that it met standards. COPIES FURNISHED: Gerald B. Sternstein, Esquire 600 First Florida Bank Building Post Office Box 2174 Tallahassee, FL 32316-2174 Richard A. Grumberg, Esquire Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0750 Jack McRay General Counsel 1940 North Monroe Street Tallahassee, FL 32399-0792 Dorothy Faircloth Executive Director Department of Professional Regulation Medicine Board 1940 North Monroe Street Tallahassee, FL 32399-0792
