Findings Of Fact The decedent, James C. Daniels, was employed as a fire fighter with the Village of Miami Shores, Florida, in April of 1972. The Miami Shores Fire Department was subsequently assimilated by Metropolitan Dade County, Florida, and at the time of the decedent's death on July 20, 1976, he was employed by Dade County as a fire fighter/emergency medical technician. On November 4, 1975, the decedent received a physical examination which showed no evidence of heart disease, and an electrocardiogram, the results of which were within "normal" limits. The decedent had no history of heart disease or circulatory problems, did not drink, and began smoking only in 1974 or 975. At the time of his death, the decedent's customary work routine involved 24 hours on duty, from 7:00 a.m. to 7:00 a.m., followed by 48 hours off duty. The decedent's duties included answering emergency calls along with his partner in a rescue vehicle. These calls included such incidences as automobile accidents, fires, violent crimes involving injuries to persons, and various and sundry other emergency situations. Upon answering an emergency call, the decedent was required by his job to carry heavy equipment, sometimes weighing as much as 80 pounds, to the place where the injured person was located. On occasion, the decedent would transport injured persons from the scene to local hospitals. At the time of his death, the decedent appeared outwardly to be in good physical condition. In fact, he engaged in a regular program of physical exercise. During the approximately two months prior to his death, the decedent participated in a busy work schedule which often included numerous rescues, in addition to false alarms and other drills required of his unit. In fact, only four days prior to his death, the decedent and his partner during one twenty- four hour shift, were involved in 13 rescues and one building fire. During that day, the decedent worked for 24 straight hours, apparently without sleep. On July 19, 1976, at 7:00 a.m., the decedent began his last work shift prior to his death. During that day, the decedent's unit participated in two rescues and two drills. That evening, several of decedent's fellow workers noticed that he looked "bad", "tired" or "drawn out". During the night, decedent was observed getting out of bed from three to five times, and holding his left arm, left side or armpit. At 7:00 a.m. on July 20, 1976, the decedent went off duty and returned home. Upon returning home, he ate breakfast, and later washed down a new brick fireplace at his home. After showering, resting and eating a lunch, he joined several other men near his home whom he had agreed to help in pouring cement for some new construction. The decedent mentioned pains in his neck and shoulder to these men before the truck carrying the cement arrived. The decedent mentioned that he had been under a lot of tension and pressure as a result of the busy work schedule at the fire station. When the cement truck arrived, cement was poured into several wheelbarrows and several of the men, including the decedent, pushed the wheelbarrows to the rear of the structure on which they were working. It appears that the decedent pushed approximately four wheelbarrow loads of cement weighing about 75 pounds each to the rear of the structure. Approximately one-half hour elapsed during the time that the decedent was engaged in this activity. Soon thereafter, the decedent was observed to collapse and fall to the ground. He was given emergency medical treatment and transported to Palmetto General Hospital, where he was pronounced dead at 5:24 p.m. on July 20, 1976. An autopsy was performed on the deceased on July 21, 1976 by Dr. Peter L. Lardizabal, the Assistant Medical Examiner for Dade County, Florida. In pertinent part, the autopsy showed moderate arteriosclerosis of the aorta, and severe occlusive arteriosclerosis of the proximal third of the anterior descending coronary artery in which the lumen, or opening, through which the blood passes through the artery was hardly discernible. The remaining coronary arteries appeared unaffected by the arteriosclerosis. The decedent's certificate of death, which was also signed by Dr. Lardizabal, listed the immediate cause of death as acute myocardial infarction due to severe occlusive arteriosclerosis of the left coronary artery. Dr. Lardizabal performed the autopsy examination of the decedent by "gross" observation, that is, without the benefit of microscopic analysis. However, microscopic slides were made during the course of the autopsy which were subsequently examined by other physicians whose testimony is contained in the record of this proceeding. Findings contained in the autopsy report, together with an evaluation of the aforementioned microscopic slides, establish that the myocardial infarction suffered by the decedent occurred at least 24 hours, and possible as many as 48 hours, prior to the decedent's death. This conclusion is based upon the existence of heart muscle necrosis, or tissue death, which would not have been discernible had the decedent died immediately following a coronary occlusion. In fact, for a myocardial infarction to he "grossly" observable at autopsy, that is, without the benefit of microscopic examination, it appears from the record that such an infarction would have to occur a substantial period of time prior to the death of the remainder of the body. Otherwise, the actual necrosis of heart muscle tissue would not be susceptible to observation with the naked eye. Although it appears probable from the evidence that the decedent went into a type of cardiac arrhythmia called ventricular fibrillation which led to his death, the actual proximate cause of his death was the underlying myocardial infarction, which in turn was a result of arteriosclerosis which had virtually shut off the supply of blood to the affected area of his heart. Although the causes of arteriosclerosis are not presently known to A medical science, it appears clear from the record that acute myocardial infarctions can be caused by emotional or physical stress, and that the decedent's myocardial infarction was, in fact, caused by the stress and strain of his job as a fire fighter and emergency medical technician. In fact, it appears from the medical testimony in this proceeding that the decedent was having a heart attack which led to the myocardial infarction on the night of July 19, 1976, or in the early morning hours of July 20, 1976, while he was still on duty. It further appears that, although physical exertion, such as the pushing of the wheelbarrow loads of cement by the decedent, might act as a "triggering mechanism" for ventricular fibrillation, the decedent's activities on the afternoon of July 20, 1976, had very little to do with his death. The type of lesion present in the decedent's heart, which had occurred as much as 48 hours prior to his death, was of such magnitude that he would likely have died regardless of the type of physical activity in which he engaged on July 20, 1976. Petitioner, Dolores A. Daniels, is the surviving spouse of James C. Daniels.
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 June 24, 2001.
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 456 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 0071241. At the time of Patient M. S.’s treatment, Respondent practiced orthopedic medicine in Florida. Respondent is currently employed as an orthopedic surgeon in Pennsylvania and as an assistant professor at the Medical Center of Penn State University. He no longer practices medicine in Florida. On February 11, 1998, Patient M. S., a 41-year-old male, was involved in a motor vehicle accident. He was transported by ambulance to Lee Memorial Hospital in Fort Myers, where he was evaluated by the emergency room physician. Respondent was consulted as the orthopedist on call for the emergency room that evening. When Respondent arrived at the emergency room, Patient M. S. was lying on a stretcher with his lower left leg in provisional traction as applied by the emergency medical technicians at the scene of the accident. Patient M. S. spoke only Spanish, so Respondent had to rely on an interpreter to communicate with him. Respondent observed that the left lower leg was shortened and completely externally rotated, consistent with a comminuted distal femur fracture. A "comminuted" fracture is a fracture in which there are multiple breaks in the bone, with several fragments. Respondent testified that upon touch, Patient M. S.'s leg was like "a bag of marbles." The patient’s right leg was not fractured but had a six-centimeter deep laceration over the shin that went down to the bone. There was a less than one-centimeter superficial wound over the left distal, anterior thigh, caused by a spike of bone fragment that had pierced the skin from within. This wound was leaking bloody, fatty material. Bones contain adipose, or fatty, tissue. A fracture of the bone can result in communication of that fatty tissue with the open wound, meaning there is direct contact of the fracture site to the outside of the body. X-rays confirmed Respondent's observation of a comminuted distal femur fracture. Respondent diagnosed Patient M. S. with a large wound to the right leg and "left complex intra-articular femur fracture, grade I open." A "grade I" open fracture, according to the Gustilo and Anderson system for grading open fractures, is a relatively clean wound with a skin fracture of less than one centimeter (cm). Respondent described the femur fracture as one of the worst he had ever seen, with multiple bone fragments and a considerable degree of trauma to the muscle surrounding the fracture. Respondent and both expert witnesses agreed that a fracture of this nature is highly susceptible to infection. Respondent irrigated the right lower leg wound with a Betadine and sterile saline solution, then debrided and closed the wound in the emergency room. "Betadine" is a trade name for povidone-iodine, a topical antiseptic microbicide. Intravenous antibiotics were administered to prevent infection of this deep wound. Respondent then treated the fracture in Patient M. S.’s left lower leg by taking it out of the temporary traction applied by the EMTs, placing a skeletal traction pin in the proximal tibia and transferring the patient to a hospital bed, where he was placed in balanced skeletal traction. As to the small wound on the left leg, Respondent's contemporaneous notes indicate only that it was dressed with Betadine-soaked gauze. The discharge summary for Patient M. S. states that the left leg wound was "irrigated and dressed." Respondent testified that he cleaned and dressed the wound, but did not irrigate it on February 11. Respondent's testimony on this point is credited. The complexity of the fracture to Patient M. S.’s left lower leg and the hospital’s operating room schedule required that the surgery be done on February 14, 1998. Patient M. S. remained in traction in the hospital during this pre-operative period. On February 14, 1998, Respondent conducted orthopedic reconstructive surgery to repair the complex fracture of Patient M. S.’s left lower leg. Respondent attached medial and lateral plates and screws and performed a bone graft. The surgery lasted approximately eight hours. At the conclusion of the surgery, the incisions were dressed and Patient M. S.’s left leg was wrapped in a bulky sterile dressing. Deep drains were placed in the knee and thigh during wound closure to prevent the formation of a deep hematoma, which can be a medium for infection. The nurse's assessment for February 16, 1998, notes a small amount of bloody drainage from the auto collection drainage device. Patient M. S. was running a temperature of 100.1ºF. The nurse's assessment for February 17, 1998, notes a large amount of bloody drainage from the auto collection device on two separate occasions. Subsequently, the assessment notes a "slight odor" from the dressing on Patient M. S.'s left leg surgical incision site. On February 18, 1998, Patient M. S. had a temperature of 102ºF, with an elevated white blood cell count. Respondent evaluated Patient M. S. and observed that the dressing on the left leg was "damp/green tinged" and had a "foul odor of Pseudomonas." Respondent lowered the dressing and found it to be "saturated and green." Respondent concluded that the dressing had been colonized from without by Pseudomonas bacteria, and ordered intravenous tobramycin as a precaution to prevent the bacteria from colonizing to the wound. On both February 17 and 18, there was serosanguineous drainage from the surgical incision on Patient M. S.'s left leg. On February 19, 1998, Patient M. S. ran a temperature of 102.1ºF. Respondent discharged Patient M. S. on February 20, 1998. At that time the patient fulfilled all appropriate discharge criteria. His fever had subsided to a normal temperature and his hemoglobin was stable. Patient M. S. was given discharge instructions by Respondent in writing as well as orally in Spanish. Respondent prescribed the oral antibiotics Keflex and Cipro for two weeks as a further precaution against infection. Patient M. S. was scheduled for a follow-up visit with Respondent on March 4, 1998. Patient M. S. was instructed to call Respondent if he experienced increased pain, numbness or tingling, a fever of 101ºF or higher, tenderness or pain in his calves, or excessive swelling, redness, or drainage. On or about February 26, 1998, Patient M. S. presented to St. Joseph’s Hospital in Tampa with apparent pain plus pus drainage from the surgical incision site on his left leg. He was diagnosed with methicillin resistant Staphylococcus aureus, Enterobacter, and Pseudomonas in his left leg. On or about March 2, 1998, Patient M. S. underwent an above the knee amputation of his left leg due to complications from infection in the leg. Subsequent to discharging Patient M. S. from Lee Memorial Hospital on February 20, 1998, Respondent received no notice of further problems with Patient M. S.’s leg until receiving notice of this action against him. Patient M. S. did not contact Respondent after complications began to develop. St. Joseph's Hospital in Tampa did not contact or consult with Respondent after Patient M. S. presented there. Respondent's first knowledge of any complications from the surgery came when he received notice of this proceeding against his license. Two issues are presented by the course of treatment described above. The first issue is whether Respondent acted within the standard of care by cleaning and dressing the less than one cm open fracture in the emergency room, or whether Respondent should have performed an irrigation and debridement of that wound in the operating room. Respondent is a board certified orthopedic surgeon with a great deal of experience in trauma. This was one of the worst femur fractures he had ever seen. His priorities on the night of February 11 were to acutely address the severe cut on Patient M. S.'s right shin, and to pull the left leg to length prior to surgery. The small left leg wound was "very clean," and in hindsight Respondent questioned whether he should even have classified it as a Grade I open fracture. He cleaned the wound, placed a Betadine dressing on it, then followed "routine procedure" by prescribing prophylactic antibiotics. The agency's expert, Dr. Steven Lancaster, also is a Board-certified orthopedic surgeon who routinely undertakes trauma cases in his practice. Based on the testimony of Dr. Lancaster the standard of care requires urgent irrigation and debridement of all open fractures, and this standard is prescribed by both the American Board of Orthopedic Surgeons and the American Academy of Orthopedic Surgeons. Irrigation involves cleaning an area with saline solution. Debridement involves the trimming of contaminated or devitalized tissue, the removal of foreign material from wounds, and the cleaning of bone and muscle tissue. Dr. Lancaster stated that, absent a life-threatening condition, it is necessary to perform the irrigation and debridement of an open fracture as soon as possible. Patient M. S. faced no life-threatening condition. According to Dr. Lancaster, the urgency is due to the fact that bacteria have already been introduced into the wound at the time of injury. If more than twelve hours pass, the bacteria have colonized, and the wound is more properly considered infected than merely contaminated. Dr. Lancaster testified that the small size of the wound did not change the urgency of performing the irrigation and debridement; microscopic bacteria are as capable of entering a small wound as a large one. Respondent's expert, Dr. Edward Sweetser, is also a board certified orthopedic surgeon with trauma experience, though the majority of his practice is in general orthopedics. Dr. Sweetser testified that he would not have debrided the small left leg wound in the emergency room, and that the standard of care would not require debridement. He noted that it was a very small laceration, that it appeared to be a puncture from within, and that it did not appear to be contaminated. Dr. Sweetser believed that cleaning and covering the wound with Betadine-soaked gauze was sufficient to keep bacteria out of the wound, and that the ordering of an intravenous antibiotic was entirely appropriate for treatment of any open wound. It is found that the agency established by clear and convincing evidence that the standard of care required urgent irrigation and debridement of the small left leg wound. Dr. Lancaster persuasively testified that such observations as the small size of the wound or that the wound appeared "very clean" to the naked eye did not affect the potential for bacterial infection. Respondent offered no rebuttal to Dr. Lancaster's testimony that urgent irrigation and debridement of open fractures is the standard prescribed by the American Board of Orthopedic Surgeons and the American Academy of Orthopedic Surgeons. The agency failed to establish by clear and convincing evidence that Respondent's failure to perform the irrigation and debridement of the left leg wound was the cause of the subsequent infection. All of the testifying orthopedists agreed that an injury such as that suffered by Patient M. S. is highly susceptible to infection from multiple possible sources. Dr. Sweetser persuasively opined that the likely main cause of the infection was the severity of the injury, both to the bone and the soft tissue, and the extended length and extensive exposure of the surgical procedure. The second issue is whether Respondent acted within the standard of care subsequent to the surgery by treating Patient M. S. with prophylactic antibiotics, or whether Respondent should have pursued the more aggressive course of reopening the left leg wound for purposes of taking a deep tissue culture to determine the presence of infection. Respondent did not suspect an inside infection of Patient M. S.'s wound. He knew that an injury of this nature carries a high incidence of infection, and believed that prophylactic antibiotics sufficiently allayed that threat. When he changed the dressing on February 18, Respondent noted serous drainage, which he termed normal given the amount of trauma and the extremely large exposure required to perform the surgery. Respondent also noted the green tinge on the outside of the dressing. When the drainage soaks through to the outside of the dressing, it is not unusual for the outside of the dressing to become colonized by Pseudomonas bacteria, which are abundant in the hospital setting. He had no indication or suspicion that the infection was within the wound. The wound looked "very good," with no redness or purulence, intact with only serous drainage. Respondent put a clean dressing on the wound and, as a precaution due to the outside colonization, ordered tobramycin in addition to the intravenous antibiotics Patient M. S. was already receiving. Respondent noted the fever and elevated white blood cell count, but also noted that Patient M. S. was afebrile with a stable hemoglobin when he was released from the hospital. Fever is common in post-surgical patients for reasons other than infection. The most common cause is the release of pyrogens by soft tissue trauma. Another common cause of fever is atelectasis, small areas of collapse in the lung resembling pneumonia. Patient M. S. received multiple transfusions, which can cause fever due to the body's immune response. In some instances, antibiotics themselves can cause a fever. Respondent testified that, after spending eight hours in surgery, he would have "done anything" to save Patient M. S.'s leg. If he had suspected an inside infection, he would have taken the patient back into the operating room, reopened the wound, and obtained a deep culture. Dr. Lancaster testified that Respondent fell below the standard of care by discharging Patient M. S. "with a febrile condition and, potentially, with an infected leg." Dr. Lancaster believed that the fever and elevated blood count required an explanation, and that Patient M. S. should not have been discharged until some effort was made to identify whether there was an infection. Dr. Lancaster's opinion is of questionable value because Patient M. S. was not running a fever and showed a stable hemoglobin on the date of discharge. Dr. Lancaster did not directly address how the patient's apparent stability on February 20 might affect his opinion. Dr. Lancaster acknowledged that post-surgery fever is common and not necessarily indicative of an infection. Dr. Sweetser's credible testimony is that, "based on reasonable medical probability," Patient M. S.'s discharge on February 20 did not violate the standard of medical care. He based his opinion on the facts that the patient had no fever, no increasing swelling in the wound, no redness, no purulent drainage, and no increase in pain. Nothing in the medical record provided a reasonable basis for Respondent to reopen the wound, and that reopening the wound delays healing and itself heightens the risk of infection. It is found that the Agency failed to establish by clear and convincing evidence that the standard of care required reopening the left leg wound for purposes of taking a deep tissue culture to determine the presence of infection. The objective facts in the medical record make it reasonable that Respondent did not suspect infection in the wound on Patient M. S.’s left leg. Therefore, his failure to obtain a wound culture or to consult with an infectious disease specialist was not outside the standard of care required of him in this case. Both experts agreed that the chances of saving Patient M. S.'s leg would have been better if Respondent had been consulted when the patient presented at St. Joseph's Hospital in Tampa. The Agency's expert, Dr. Lancaster, stated that when a patient has a complication, it is better practice for the operating surgeon to treat it. Dr. Sweetser testified that the operating surgeon possesses information for which the written notes and x-rays cannot substitute.
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 finding that Respondent violated Section 458.331(1)(t), Florida Statutes, and imposing the following penalty: a reprimand, 10 hours of Continuing Medical Education in orthopedic medicine to be completed within 12 months of the final order, and payment of an administrative fine in the amount of $250.00. DONE AND ENTERED this 4th day of February, 2002, 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 4th day of February, 2002. COPIES FURNISHED: Kim M. Kluck, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Bruce M. Stanley, Esquire Henderson, Franklin, Starnes & Holt, P.A. Post Office Box 280 Fort Myers, Florida 33902 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact Based upon the record evidence and the factual stipulations entered into by the parties, the following Findings of Fact are made: Respondent is now, and was at all times material hereto, a veterinarian authorized to practice veterinary medicine in the State of Florida under license number VM 0002825. He has practiced veterinary medicine since 1981. 1/ Respondent is a sole practitioner. He owns and operates the Aark Animal and Bird Clinic (Clinic) in Lighthouse Point, Florida. 2/ As the name of the Clinic suggests, Respondent's practice includes, but is not limited to, the care and treatment of pet birds, including cockatiels. 3/ Respondent's regular office hours are 8:00 a.m. to 11:45 a.m. and 3:00 p.m. to 5:45 p.m. Office visits that occur between 11:45 a.m. and 3:00 p.m. are considered emergencies for billing purposes. As indicated in the informational materials Respondent furnishes to the pet owners who utilize his services, he offers emergency care and treatment on a 24-hour a day basis. When the office is closed, emergency calls are routed to an answering service, which in turn contacts Respondent by beeper. On March 10, 1989, at around 12:00 noon, Janice Betts called Respondent's office concerning an injury that her pet cockatiel, Cinnabar, had just suffered. Cinnabar had caught its right leg in a door jamb as the door was closing. The result was a complete fracture of the leg above the toes, as well as tendon, ligament, artery, vein and tissue damage in the area around the fracture site. Indeed, the leg had been almost totally severed. Only some tissue remained. After being told that Respondent would see Cinnabar, Betts took the bird to Respondent's office. They arrived at around 12:30 p.m. Although injured, Cinnabar was not in deep shock. Upon their arrival at the office, Betts and Cinnabar were immediately escorted to the examining room, where Respondent examined Cinnabar. Noting the extent of the damage that had been done and that the distal portion of Cinnabar's right leg "was hanging on by [just] a thread of skin," Respondent recommended that the leg be amputated. He made this recommendation without having clipped Cinnabar's toenail to determine the extent of blood flow, if any, to the distal portion of the leg. 4/ Betts asked Respondent if there was anything that could be done to save Cinnabar's leg. Respondent indicated that he could do "microsurgery," but that there was no guarantee that it would work. He further advised her of the possible post-operative complications that could arise if "microsurgery" were performed. Respondent gave Betts a written, itemized estimate of the charges involved in such a procedure. Betts signed the estimate and authorized Respondent to perform the procedure. She then left the office. Respondent proceeded to stitch the detached portion of Cinnabar's right leg back on using fine vicral sutures. He then applied Nexaband Avian, a bonding agent, 5/ to the epidermal and subepidermal areas around the sutures where there were gaps. 6/ He did not apply any of this substance, however, to the fracture site. 7/ Shortly after the surgery, at around 1:10 p.m., Betts called Respondent's office and asked if she could speak with Respondent about Cinnabar's condition. Betts was told by the person who answered the phone that Respondent was not in the office. Betts returned to Respondent's office at around 5:00 p.m. that same day. She paid her bill, using a credit card, 8/ and then took Cinnabar home. Betts' bill totalled $444.50, including $20.00 for an "avian exam," $25.00 for "emergency day-time" treatment, $20.00 for an "office inject- antibiotic," $20.00 for an "office inject- steroid," $9.00 for a "para-fecal exam," $9.00 for a "para-fecal exam (direct)," 9/ $30.00, which represented an "operating room fee," $28.00 for "disposables" used during surgery, $42.00 for "anesthesia- general inhalant," $90.00 for the time spent by Respondent in surgery, $30.00 for the time of his surgical technician, $22.50 for "fluid therapy set up," $18.00 for "fluid therapy S.C. ea," $15.00 for "hospital per date Dr. superv.," $10.00 for "hospital per date: Nurse Care," $30.00 for "incubation/date," and $26.00 for "Chloromycetin palmitate 60ml," which is an antibiotic. While Respondent did examine Cinnabar, his medical records do not reflect that an adequate examination was performed. They contain no information regarding Cinnabar's general physical condition, which such an examination should have revealed to Respondent. It was essential for Respondent to have had this information before treating Cinnabar. Cinnabar's visit was considered an emergency visit for billing purposes because it did not occur during Respondent's regular office hours. It is customary for veterinarians to charge an additional fee, as did Respondent, for visits outside regular office hours. For the medications he administered, as well as for the "fluid therapy set up," Respondent charged Betts considerably more than his cost and he therefore realized a handsome profit on these items. 10/ Respondent released Cinnabar to Betts without taking any measures to immobilize Cinnabar's fractured leg. In failing to take such action, he acted in a manner that was inconsistent with what a reasonably prudent veterinarian would have done under like circumstances and therefore engaged in conduct that fell below the minimum standard of acceptable care for veterinarians in the community. The failure to immobilize a fracture of the type Cinnabar sustained, not only diminishes the likelihood that the injury will heal properly and increases the chances that further damage to the areas surrounding the fracture site will occur, it also leaves the bird vulnerable to pain if it tries to stand on the leg. No justification existed for Respondent not to have immobilized Cinnabar's fractured leg. There were various devices readily available to Respondent that he could have used for that purpose. Any concerns that Respondent may have had regarding the efficacy of such devices were unfounded. Furthermore, Respondent was misguided to the extent that he believed that, if he used such a device, he would not be able to determine, on Cinnabar's follow-up visit, whether the "microsurgery" was successful because the device would interfere with his ability to visually inspect the affected area of Cinnabar's leg. 11/ That evening, at around 7:30 p.m., while at home, Betts noticed that Cinnabar's leg had begun to bleed again. She called Respondent's answering service. Respondent returned her call approximately 35 minutes later, but Respondent was not home. She had already left to take Cinnabar to see another veterinarian, Dr. David Smith, at the Pet Emergency Center. Upon the bird's arrival at the Pet Emergency Center, it was seen by Dr. Smith. The bird initially presented as "very stressed and shocky." Smith stopped the bleeding by using manual pressure as well as a clotting powder. He also tried "to put the skin edges back together" with Nexaband Avian. He provided no other treatment. During the visit, both Dr. Smith and Betts spoke by telephone with Dr. Gregory Harrison, a veterinarian who specializes in the treatment of pet birds. Betts made arrangements to have Dr. Harrison see Cinnabar early the following morning at his office in Lake Worth, Florida. The following morning, Betts brought Cinnabar to Dr. Harrison's office. The bird's general physical condition had not changed substantially since it had been seen by Dr. Smith the evening before. Dr. Harrison examined the bird. He determined based on observation, and subsequently confirmed by x-ray, that Cinnabar had indeed suffered a complete fracture of the right leg. Furthermore, it appeared that Cinnabar had a devitalized right foot, inasmuch as it was cold, the toenails were black and there was no fresh blood circulating to the toes. The treatment options that were available were to attempt to reestablish the blood supply by microsurgically rejoining the ends of the damaged blood vessels and then immobilizing the fracture, or to amputate the leg below the fracture site. Given the substantial cost of the first option and the likelihood it would be unsuccessful, Dr. Harrison recommended amputation. Betts accepted his recommendation. After receiving Betts' authorization, Dr. Harrison performed the amputation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Veterinary Medicine enter a final order (1) finding Respondent guilty of violating Section 474.214(1)(o), Florida Statutes, for having failed to immobilize Cinnabar's fractured leg; (2) finding Respondent guilty of violating Section 474.214(1)(f), Florida Statutes, for having failed to maintain adequate medical records concerning Cinnabar's March 10, 1989, visit to his office; (3) imposing a $1,500.00 administrative fine, suspending Respondent's license for three months and placing him on probation for a period of 18 months for having committed these violations; and (4) dismissing the remaining charges against Respondent set forth in the Amended Administrative Complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of December, 1991. STUART M. LERNER 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 26th day of December, 1991.
The Issue The issue for consideration is whether Respondent's license as a Doctor of Veterinary Medicine in Florida should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations herein, the Respondent was a licensed veterinarian in Florida practicing under license number VM 2884, and the Board of Veterinary Medicine was and is the state agency charged with the responsibility of regulating the practice of veterinary medicine in this state. On July 22, 1988, Bonnie Judd, owner of a golden retriever puppy, "Einstein", accidentally backed over the animal with her automobile injuring it badly. She immediately took the puppy which was, at the time, approximately 4 or 5 months old, to the Respondent for treatment. Respondent examined the dog and informed Ms. Judd that the animal's leg was broken and that surgery would be required to repair it. He did not then indicate any other injuries and at no time did he suggest taking the animal to the university hospital for evaluation. He advised her to leave the animal with him and had her sign certain documents including an informed consent form which indicated that Respondent was to fix a "broken tibia only." Ms. Judd contends that that notation was not on the form when she signed it and it is so found. He did not then suggest putting the dog to sleep, either. At approximately 4:30 that same afternoon, Respondent called Ms. Judd and told her she should pick the animal up because no one would be at the clinic all weekend. When she arrived at Respondent's facility, he informed her that the dog had also been dipped for fleas, his shots had been updated, and a pin had been placed in the left rear leg. Respondent estimated the prognosis for healing of the broken tibia would be between 4 and 6 weeks. At this time Ms. Judd paid the Respondent his fee of $350.00, $200.00 of which was by post dated check, and an additional $15.00 for medications. At that point, Respondent's wife updated Einstein's vaccination records to reflect the shots which had been given. During the period between July 22, 1988 and August 16, 1988, Ms. Judd returned Einstein to the Respondent for treatment approximately one or two times a week. Toward the end of that period, Respondent, for the first time, informed Ms. Judd that Einstein's injuries were far more extensive than merely a broken leg. During these follow up visits, however, the Respondent would check the broken tibia and its wound, changing the bandage, administering antibiotics, and changing the cast. On most of these visits, Respondent reported to Ms. Judd that the leg was healing and the animal's condition was satisfactory. Respondent claims that at the very beginning, he told Ms. Judd of the animal's other injuries and that it should be taken to the university's veterinary hospital for evaluation and possible euthanasia. The copies of his records, provided as evidence, reflect notations of other injuries and support his claims, but they are photo copies of the actual documents and cannot be properly examined for authenticity. However, the evidence shows that Respondent treated the animal for the broken tibia for several weeks after the initial visit, notwithstanding, he claims, she only wanted the animal treated and kept alive long enough for her husband to come home and make the decision. This would seem to indicate the treatment for the tibia was the chosen treatment and not merely a stop-gap. Further, Ms. Judd claims that it was only when she decided to seek another opinion that Respondent mentioned the other injuries. This is a question of whom to believe - Ms. Judd, who admits to having lied to her husband about what happened to another dog she accidentally killed, or Respondent, who, it appears, denies any impropriety though evidence to the contrary indicates otherwise. On balance, it is found that Respondent did not advise Ms. Judd of any additional injuries until late in the course of treatment and neither recommended hospitalization nor consideration of euthanasia early on. Also during this period, he provided Ms. Judd with antibiotics and tranquilizers to administer to Einstein but the medications were improperly packaged and labeled. They did not contain the necessary information relating to drug name, drug strength, quantity, or directions for use and they were not in child proof containers. According to a departmental expert witness, this was below professional standards and it is so found. As previously found, during the last or next to last visit, Dr. Helmy informed Ms. Judd that the animal also had a broken pelvis but that that injury should not be dealt with until the broken leg was healed. He indicated that when appropriate, the pelvis could be corrected by further surgery. Subsequent to her last visit, on August 16, 1988, Ms. Judd received a bill for an additional $350.00 for the periodic follow-up visits mentioned. Ms. Judd, seeking another opinion, took Einstein to the office of Dr. Charles MacGill in Crystal River on August 17, 1988. At Dr. MacGill's advice, she requested the animal's medical records and all x-rays from Dr. Helmy which he refused to provide. He indicated that the only X-rays he had taken were those made after surgery, which had never been developed. He also indicated he did not need to take prior x-rays because he was able to assess the animal's injuries with his hands. There is some question as to the propriety of inserting a pin into the dog's tibia to reduce a closed fracture without the use of an x-ray, and while the experts consulted indicated it can be done, it is not good practice and is below professional standards. It is so found. During his examination, Dr. MacGill noted that Einstein could not walk. His back leg muscles had atrophied and there was a suppurating hole showing gross infection in the left rear tibia. A rectal examination confirmed Dr. Helmy's diagnosis of a broken pelvis. After taking several x-rays of the animal, Dr. MacGill advised Ms. Judd that in addition to the broken tibia and fractured pelvis, the distal femur was broken; the tibial fracture had not properly healed and showed signs of osteomyelitis; and there was a fracture of the fifth lumbar vertebra which was exerting pressure on the spinal cord. Dr. MacGill prescribed several antibiotics for the animal and, because of the spinal fracture, advised Ms. Judd she should take Einstein to the University of Florida School of Veterinary Medicine for evaluation. Ms. Judd readily agreed. Ms. Judd took Einstein to the university hospital on August 22, 1988 and left him there for an assessment of the damage. At the same time, she signed a consent form authorizing euthanasia in the event the opinion of the physicians was that the dog's nerve damage was too extensive for him to survive. Thereafter, she was advised that the nerve damage incurred was irreversible and extensive, and the animal was put to sleep. Examination of the animal at the hospital indicated he was unable to stand on his rear legs; he had neurological deficits in the right rear leg; evidenced pain on palpation of the left shin; and had a grinding in the hip joints. The left rear tibia showed an open, infected wound, and a rectal examination confirmed the pelvic fracture. X-rays taken at the hospital during this examination revealed that the only fracture which had been treated was the fracture of the tibia. This x-ray also confirmed the existence of osteomyelitis in that wound. In the opinion of Dr. Robert Parker, associate professor of surgery at the school, and the individual who saw Einstein there as attending surgeon, the technique of pin placement utilized by Dr. Helmy in reducing the fracture to the tibia was adequate, but Dr. Parker was concerned that the fracture was not stable. He concluded as well that the contamination of the wound, either at the time of fracture or at the time of surgery, could not be controlled due to the instability and poor drainage of the fracture site. Dr. Parker formed no opinion as to the Respondent's compliance with the community standards. He pointed out that he saw the dog four weeks after injury and was concerned at that time that only one of several fractures had been repaired. The one repaired by Dr. Helmy was the least serious and, in Parker's opinion, the others should have been treated first. He does not know why they were not treated but opined they should have been treated as soon as possible after they were incurred, if the condition of the animal permitted. Referring to the tibia fracture reduction, however, while minimally acceptable, it was not done in the manner that he, Dr. Parker, would have utilized. He felt that the femur fracture should have been treated first and also that the use of a splint in the case of an open wound, as here, contributes to the high risk of infection. This is what happened. Had the dog been brought to the hospital initially, a team would have seen it. Normally, a single practitioner cannot render the same type of treatment because of a lack of experience or equipment, but the appropriate thing for Respondent to have done would have been to stabilize the animal and refer it to a hospital or a team treatment facility. He did not do this. Here, in Parker's opinion, Respondent's repair of the tibia was not the appropriate first thing to do. Had the tibia not been treated, it is probable the infection would not have occurred. The initial fracture was not an open fracture but a closed fracture, and infection was given access by the procedure utilized by Respondent in opening the wound for the insertion of the pin. In Dr. Parker's opinion, the tibia could have been stabilized without a pin so that the animal could be transferred to a team treatment facility. The test, however, is not whether Respondent's treatment met optimum criteria. Here, the failure to refer to a team facility was not actionable error. Any error, if established, must relate to the Respondent's choice of procedures and his performance of them. While each of the injuries alone was not fatal, taken together they were ovehelming and euthanasia would have been a viable option from the very beginning. The neurological problems could have been repaired over a long period, but Dr. Parker would not normally wait for that to decide to do something regarding the fracture. Since the tibia was the fracture of lowest priority, in Parker's opinion, Respondent cannot legitimately claim he did this while waiting for neurological resolution. In this case, since he did not see the x-rays taken early on, Dr. Parker cannot say if Respondent's use of a pin was proper or not. Normally, however, a splint, as used by Respondent, is not used with a pin insertion. If there is an opening of the body, as here, it should not be combined with external stabilization which can introduce infection. While the hip joint fracture had healed by the time Parker saw the animal, there are indications that the healing was imperfect and additional arthritis would probably have set in, requiring further surgery. In this case, the untreated fractures were very bad and should have been treated surgically right away or the animal should have been put to sleep. Even if all had been done properly, however, the dog probably, in the opinion of Dr. Parker, would have had nerve damage and the prognosis for recovery was guarded. According to Dr. MacGill, who examined Respondent's records regarding his treatment of Einstein, Respondent administered several drugs for the dog. Two of these, the antibiotic and the tranquilizer appear appropriate, but the third, Prednisone, is a cortisone derivative which is not indicated or appropriate when infection is present. Whereas Dr. Parker was unwilling to state an opinion as to whether Respondent's treatment of Einstein met minimum standards, Dr. MacGill is not at all reluctant. In his opinion, were he to have treated the animal himself initially, he would have put a bone plate on the femur, done minimal repair with regard to the pelvis, stabilized the back to relieve pressure on the vertebrae, and treated the tibia. Accomplishment of all these is required to meet minimum standards, in his opinion, and Respondent's treatment did not, he believes, meet these standards. It is so found. After the dog was put to sleep, Ms. Judd consulted an attorney, Mr. Travis, who attempted to obtain Einstein's medical records from Respondent. Respondent was not cooperative and declined to furnish them initially though he ultimately did so. Dr. Greene, an expert in veterinary medicine practicing in Tampa, reviewed this case through an examination of the records maintained by all parties and heard the testimony at the hearing. In his opinion, the care rendered by Dr. Helmy constituted negligence from the point that Einstein was operated on. While there is some indication that x-rays may have been taken, showing multiple fractures, surgery under a "questionable anesthetic", one which quiets the dog but does not put him out, when the surgery is not going to serve a valid purpose, along with the use of cortisone, with its resultant reduction of the body's ability to fight infection, after surgery, all constitute inappropriate conduct. Some of the medications prescribed by Respondent were contraindicated for the purpose used here. Inovar, used as an anesthetic during reduction of the tibia fracture, was inappropriate. Enough ampicillin was given for only five days. Prednisone, (cortisone), reduced the animal's ability to fight infection. The anterobe is an antibiotic which would be good to fight infection if prescribed in the appropriate amount which it was not, here. In light of the osteomyelitis, which was more than a mere infection, the amount prescribed was totally insufficient. It should be noted, however, that Ms. Judd did not administer all the medications given by Dr. Helmy. Had she done so, the infection may not have come about or been so severe. In total, Dr. Greene does not believe Respondent acted properly here. Helmy did not asses the other injuries and should not have operated on the tibia as the sole action taken. The other injuries were more serious and were neither treated nor addressed. Further, his review of the records maintained by Dr. Helmy regarding this animal shows they omit any reference to replacing sutures which the dog took out and they omit any mention of a treatment plan. The notes do not show any injuries other than the broken tibia and do not mention the femur, the vertebrae, the pelvis or any other injuries. All medical records should identify and assess all conditions regardless of whether they are treated or not. They cannot be ignored. As was mentioned previously, however, the note of 7/22/88 in Respondent's records as to Einstein does refer to a broken femur shaft and problems with the pelvis, in addition to the tibia fracture. Taken together, the Respondent's treatment constitutes neglect and did not meet minimum standards for the practice of veterinary medicine in Florida. By a Final Order dated July 4, 1987, the Board of Veterinary Medicine found Respondent guilty of violating Chapter 474, Florida Statutes, and, inter alia, placed him on probation from August 4, 1987 to August 3, 1991. The Order also provided that if, during the period of probation, the Respondent is found guilty in a Final Order of the Board of violating any provision of Chapter 474, his license would automatically be suspended.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's license to practice veterinary medicine in Florida be suspended for a period of two years and that thereafter he be placed on probation for an additional period of two years under such conditions as are prescribed by the Board of Veterinary Medicine, and that he pay an administrative fine of $1,500.00. RECOMMENDED this 12th day of January, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-2464 The following constitutes my specific rulings pursuant to S. 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. & 3. Accepted and incorporated herein. 4. - 6. Accepted and incorporated herein. 7. & 8. Accepted and incorporated herein. 9. - 11. Accepted and incorporated herein. 12. - 13. Accepted and incorporated herein. Accepted and incorporated herein. & 16. Accepted. Accepted and incorporated herein as a finding, not as "it appears." Accepted and incorporated herein. Not a Finding of Fact but a recitation of testimony. FOR THE RESPONDENT: Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein except for the conclusion as to what Respondent found and what he told Ms. Judd. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as contra to the evidence. & 9. Rejected as contra to the evidence. 10. & 11. Accepted and incorporated herein. 12. & 13. Rejected as contra to the evidence. 14. & 15. Accepted and incorporated herein. Accepted as to what Respondent did but rejected as to his reasons for failing to treat the other injuries. Rejected. There was no discussion about taking the animal to the University or other veterinarian. & 19. Accepted and incorporated herein. 20. - 22. Accepted and incorporated herein. Accepted. Rejected. & 26. Accepted. 27. - 34. Accepted and incorporated herein. 35. - 39. Accepted and incorporated herein. Rejected. & 42. Accepted and incorporated herein except for the last sentence in paragraph 42 which is rejected. Accepted. - 47. Accepted and incorporated herein. Accepted and incorporated herein. Not a Finding of Fact but a comment on the testimony. Not a Finding of Fact but a comment on the testimony. Last sentence rejected. Balance merely a recitation of testimony. Merely a comment on the testimony. Accepted. Accept. Rejected. & 57. Rejected. Accepted. Rejected as merely comment on testimony. Rejected as contra to the evidence. 1st and second sentences accepted. 3rd sentence rejected 4th through 6th sentences rejected. Balance rejected. 1st sentence accepted. 2nd sentence accepted but only after the tibia was set. Third sentence accepted. Accepted. COPIES FURNISHED: Laura P. Gaffney Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William E. Lackay, Esquire Post Office Box 279 Of Flotifs Building Highway 31 North Bushnell, Florida 33513 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Linda Biedermann Executive Director Board of Veterinary Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
The Issue At issue in this proceeding is whether Katelyn Foley, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary matters Terry Gerstein-Foley (Mrs. Foley) and Myles Foley are the parents and natural guardians of Katelyn Foley (Katelyn), a minor. Katelyn was born a live infant on April 28, 1995, at Memorial Hospital, a hospital located in Hollywood, Florida, and her birth weight exceeded 2500 grams. The physician providing obstetrical services during the birth of Katelyn was Eric N. Freling, M.D., who was, at all times material hereto, a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Given the parties' agreement to the foregoing facts, what remains to resolve is whether the proof persuasively demonstrates that the anomalies with which Katelyn presents were occasioned by an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period" and, if so, whether such injury rendered her "permanently and substantially, mentally and physically impaired." Katelyn's birth At or about 5:15 p.m., April 27, 1995, Mrs. Foley presented to Memorial Hospital in labor. At the time, Mrs. Foley was post-term at 41 plus weeks, but her pregnancy was otherwise unremarkable. The obstetrical assessment on presentation reflects that contractions began at 12:30 p.m., April 27, 1995, and the membranes spontaneously ruptured at 3:30 p.m., with clear fluid noted. Vaginal examination revealed dilation at 2 to 3 centimeters, effacement at 50 percent, and the fetus at station -2. Fetal heart rate was recorded at 120 to 125 beats per minute. Mrs. Foley was admitted to the labor and delivery room at approximately 6:00 p.m., and an external fetal monitor was applied. Fetal heart rate was recorded as 120 to 130 beats per minute. Mrs. Foley labored through the evening, and at 10:45 p.m. vaginal examination revealed dilation at 4 centimeters, effacement at 70 percent, and the fetus at station -1. Fetal heart rate continued in the 120 to 130 or 130 to 140 beat per minute range, with accelerations. At 11:40 p.m., the monitor was disconnected and Mrs. Foley went to the bathroom. At 11:46 p.m., Mrs. Foley called the nurse, and heavy vaginal bleeding was observed. In response, Mrs. Foley was immediately put in bed on her right side and oxygen was administered. Internal fetal electrode was applied, and fetal heart rate was recorded at 116 to 126 beats per minute. Vaginal examination revealed dilation at 6 centimeters, effacement at 90 percent, and the fetus at station -1. Labor continued without any significant observations noted until 12:15 a.m., April 28, 1995, when variable decelerations were noted and decreased variability. Monitoring revealed the fetal heart rate at 118 to 128 beats per minute. Mrs. Foley was repositioned and administered oxygen. At 12:30 a.m., the fetal heart rate was noted at 120 to 130 beats per minute, with occasional late decelerations and decreased variability; however, the fetal heart rate was noted as difficult to track, as the internal electrode was not working well. Mrs. Foley was repositioned to her side and administered oxygen. At or about 12:57 a.m., vaginal examination revealed dilation complete, effacement complete, and the fetus at station +2 to +3. Consequently, although audibly the fetal heart rate was reassuring, Dr. Freling elected to promptly effect delivery because of the continuing difficulty in recording the fetal heart and uncertainty about its pattern. At 1:10 a.m., April 28, 1995, a vaginal delivery, with vacuum assistance, was effected. Placenta was delivered at 1:22 a.m., with no abruption noted. Consequently, Dr. Freling concluded the vaginal bleeding was heavy secondary to fast cervical dilation. Cord pH at delivery was 7.15, and Katelyn presented with an Apgar score of 4 at one minute, with heart rate being graded at 2, respiratory effort and reflex being graded at 1 each, and tone and color being graded at 0 each. At five minutes, Katelyn's Apgar score totaled 7, with heart rate and reflex being graded at 2 each, and respiratory effort, tone, and color being graded at 1 each. By ten minutes grunting and retractions were apparent, and Katelyn was transported to the new baby intensive care unit for monitoring incident to respiratory distress. Katelyn developed hyperbilirubinemia and remained hospitalized until May 5, 1995, when she was discharged to her mother's care. The findings regarding Katelyn's condition on admission to the neonatal intensive care unit and her course of treatment are described in the discharge summary as follows: HISTORY AND PHYSICAL: . . . Infant had few abrasions on buttocks, blood noted on scalp from an electrode site, ? craniotabes1/cephalohematoma2, decreased perfusion, weak pulses, poor aeration with rales and tachypnea3, soft, thin cord, slightly decreased activity of right arm, bilateral hip clicks (Left dislocatable) noted on admission. The rest of the physical examination was essentially normal for gestational age. ADMITTING DIAGNOSES: Vacuum extraction Respiratory distress R/O acidosis Probable craniotabes HOSPITAL COURSE: Respiratory distress: Infant initially presented with decreased aeration, with rales, & tachypnea which quickly resolved without intervention. . . . Neuro: Infant initially presented with ? craniotabes & decreased activity of right arm. Also with asymmetric crying facies with decreased motion of left angle of mouth. Dr. Mollestan consulted on 4-28 with CT showing ? bending of skull bones, negative bleeding. No follow-up needed. * * * Ortho: Presented with bilateral hip clicks with the left hip dislocatable. Consult with Dr. Reich on 4-29 showed bilateral CDH treated with a pavlik harness. Infant to be followed-up 1 month after discharge. . . . * * * DISCHARGE: Discharge was on 5-5-95 with weight 2870 gms and head circumference 35 cm. Physical examination showed craniotabes, bilateral cephalohematomas, dry scalp probe site, holds neck to left side - improving, hips dislocatable - pavlik harness in place, icteric, otherwise was within normal limits. Feedings are Enfamil with Iron ad lib q 4h. Medications include Bacitracin to scalp probe site. Last Hct on 5-3 was 38.5%. Dr. Budowsky will be the Pediatrician following the infant after discharge.4 Other follow up appointments include outpatient PEIP, Ortho Dr. Reich on 5-8 also with ultrasound, Neuro Dr. Brown 1 month. DISCHARGE DIAGNOSES: 41 week newborn Transient tachypnea of the newborn Vacuum extraction Sepsis ruled out Congenital dysplasia5 of hips Hyperbilirubinemia Craniotabes Katelyn's subsequent development and medical care Consistent with the discharge summary, Katelyn was followed orthopedically by Dr. Reich for dysplasia of the hips, and progressed well with the harness. At seven weeks the harness was removed, and Dr. Reich observed that range of motion and ultrasound were normal. Katelyn was last seen by Dr. Reich on October 2, 1995, for a follow-up visit. At that time, Dr. Reich noted she had a normal exam of her hips, and she was essentially normal on x-ray. Also consistent with the discharge summary, Katelyn was examined by Dr. Stuart Brown, a pediatric neurologist, on June 9, 1995. That examination revealed: Physical examination revealed a lovely five-week old baby, who weighed 11 pounds. Her head circumference was 38 cm. I did not measure her length, which appeared appropriate for her weight. Facial features were normal. The fontanel was depressed and the sutures were normal. A small, 1 cm., linear, reddish area was noted in the right parietal region, without any evidence of edema, and with the underlying skull feeling normal to palpation. There was no evidence of hematoma. The neck was supple with a full range of movement. The child was noted to be in harness to alleviate a hip dislocation. The heart was normal to auscultation and the abdomen was soft without any organ enlargement. The spine was straight and the skin did not show any pigmentary abnormalities. The neurological assessment revealed full extraocular movements with equal and reactive pupils, and a normal right optic disc. The facial musculature was normal and the tongue was normal, and cry was lusty. Midline face and palate were normal. Muscle tone was normal in the extremities and the deep tendon reflexes were equal and active. Plantar responses were bilaterally flexor. Moro response was active and symmetrical, and tonic neck reflexes were fragmentary. Vestibular responses were normal. Suck was normal. Seizures and involuntary movements were not seen. IMPRESSION This child is neurologically normal, without showing any evidence, at this time, of any residual impairment from the birth trauma and linear skull fracture. She is not in need of any neurological follow-up, but I will be pleased to see her if the need arises. On August 30, 1995, on the referral of her pediatrician, Katelyn was seen by Dr. Michael Jofe, a board certified orthopedic surgeon, for a consultation. Dr. Jofe's observations and conclusions are set forth in his report of August 30, 1995, as follows: I saw your patient, Katelyn Foley, in my office on August 30, 1995. Katelyn is a 4- month old baby girl who you referred for evaluation of her neck. Katelyn was born with subluxed hips and was treated with a Pavlik harness. Through an early intervention program she has been receiving physical therapy and Mary Flanders, her physical therapist, noticed that her head wasn't right. She is sent today for evaluation. She was a difficult pregnancy and delivery and developed what sounds like a cephalhematoma. She was hospitalized in the Newborn Intensive Care Unit for eight days after birth. Otherwise, her family and past medical history is unremarkable. On exam she tends to hold her head with her left ear towards her left shoulder and her chin towards her right shoulder consistent with a left torticollis.6 I can correct her to neutral but not much beyond. The remaining surface exam of her spine is unremarkable. She has a full range of motion of her upper and lower extremities. She has a negative Ortolani, Barlow and Galeazzi's sign to her hips. The neurologic exam was normal including motor, sensation, and reflexes. There was no evidence of clonus and both toes are downgoing. Straight leg raising is negative bilaterally and the abdominal reflexes are normal. She has a thickening of the sternocleidomastoid of her neck but not severely so. I x-rayed Katelyn's neck today and the x-rays are basically unremarkable. Katelyn therefore has a history and physical exam consistent although not diagnostic of torticollis. In general, there is a pseudotumor caused by thickening of the sternocleidomastoid that occurs within the first few weeks to few months of life and then gradually resolves. However, the deformity remains. I don't feel a definite pseudotumor and therefore I am going to check an MRI to make sure there is no other underlying lesion. However, I suspect that this is torticollis and we will need to direct physical therapy towards that. Following further examination, Dr. Jofe concluded Katelyn's presentation was most consistent with mild torticollis, and instructed her parents on physical therapy and also recommended formal physical therapy. Dr. Jofe continued to monitor Katelyn's progress, as related to mild torticollis and, following Dr. Reich, as related to her hip development. Katelyn progressed well with therapy, and according to the last observations of Dr. Jofe in a report to Katelyn's pediatrician on May 22, 1996, her condition was as follows: . . . she is continuing to do well. Her neck is essentially straight. When she is tired her parents relate that she tends to tilt a little to the left but nothing severe. She has full range of motion of her head and neck and moves it completely normal in the office. Her hip exam is normal also . . . [and] [h]er hip x-rays show her hips to be developing well. . . . In addition to the foregoing consultations, Katelyn was also referred to Children's Diagnostic and Treatment Center of South Florida (Children's Diagnostic Center) for developmental evaluation. The first evaluation, July 26, 1995, revealed appropriate mental and psychomotor development for her age; however, extreme weakness of the neck with significant head lag was reported. Katelyn was also noted to have weak upper and lower extremities, and it was felt she would benefit from physical therapy. Katelyn's next developmental screening at Children's Diagnostic Center was October 30, 1995. That evaluation concluded: Katelyn's performance on the Bayley Scales of Infant Development II was within normal limits on the Mental Scale and mildly delayed on the Psychomotor Scale. At this time, it appears she has some difficulties in the area of gross motor functioning. According to mother, an orthopedic physician and a physical therapist are currently providing services to address these concerns.7 Mother was encouraged to have Katelyn practice picking up small items at home to enhance her fine motor skills. According to the proof of record, the last developmental screening at Children's Diagnostic Center occurred on April 1, 1996. The results of that screening were similar to the previous screening and revealed: Katelyn's performance on The Bayley Scales of Infant Development II was within normal limits on the Mental Scale and mildly delayed on the Motor Scale. She currently sees an orthopedist and receives physical therapy once a week. Katelyn's gross motor difficulties were shared with the clinic staff to address further. Finally, in May 1996, having diagnosed Katelyn with developmental delay, her pediatrician referred her to Dr. Robert Cullen, a pediatric neurologist, for consultation. That consultation apparently occurred in July 19968; however, if it was ever reduced to writing, its results are not of record. But, Katelyn's follow-up consultations with Dr. Cullen on March 26, 1997, and September 8, 1997, are of record. (Petitioner's Exhibits 3 and 4). Dr. Cullen's report for his neurologic consultation of March 26, 1997, contained the following pertinent observations: This 23-month-old young lady was last seen by me back in July. She does indeed have a picture of an atonic diplegia.9 She also had a hypoplasia10 or absence of the left depressor anguli oris muscle. Her general health since her last visit has been good. . . . She started to walk independently at 18- months. She now has a 12 word vocabulary. She tries to dress herself. Her motor skills are still behind and tone is behind . . . She presents now for a neurological evaluation. PHYSICAL EXAMINATION now showed her to be a fairly adequately nourished and developed 23- month-old young lady who was in no acute distress. . . . She still had loose heel cords and some loose hip abduction . . . NEUROLOGICALLY, she was alert. She used an occasional word. She cried loud and lustily to noxious stimuli, but could be quieted quite readily when held by her father. Cranial nerves II-XII did show the pupils to be equal and regular and they did react to light. The extraocular eye movements were full. The right disc was flat. I did not get a good look at the left disc. She had full visual fields. There was no facial weakness. She still did not depress the left corner of the mouth fully, but this had improved from in the past. She had adequate auditory responses, a good gag, good palatal and pharyngeal movements and the tongue did remain midline. MOTOR EXAMINATION showed adequate muscle bulk. Tone was still a bit decreased. Grasp and traction were fairly good. She was able to walk and run. I did not see any asymetry of her arm movement when running. There was still a minimal degree of genu recurvatum.11 SENSORY EXAMINATION was intact to pin. . . . The plantars were indeed flexor. CEREBELLAR EXAMINATION showed no real dysfunction with finger-to-nose type movements. IN SUMMATION, Katelyn is a 23 month-old-young lady with a picture of an atonic diplegia and a development language delay. She does indeed have a hypoplasia or absence of the left depressor anguli oris muscle. I think she is improving in terms of her motor skills. Her language still remains behind. She has some minimal genu recurvatum. I do not think we need to be in a formal program of therapy at this time. I would like to see her here in December to see how she is doing. . . . Katelyn's next visit to Dr. Cullen was on September 8, 1997. The report of that consultation contained the following pertinent observations: This 28 1/2-month-old young lady was last seen by me back in March. She does indeed have a picture of an atonic diplegia. She also had a developmental language delay. She had a hypoplasia or absence of the left depressor anguli oris muscle. Her general health since her last visit has been good. . . . Her mother said she started three-word phrases at about 27-months. She does not really dress herself yet. She goes to a gym class, but is not in school. She is not toilet-trained. . . . Her muscles are a little bit stronger. Her mother feels that she is a little less agile than other children in the gym class. Her behavior is good. She is no longer in therapy. There is litigation and they are represented by Mr. Schlessinger's firm. She does present now for a neurological re-evaluation. PHYSICAL EXAMINATION now showed her to be a fairly adequately nourished 28 1/2-month-old young lady who was in no acute distress. . . . There were no heel cord contractures. She had somewhat loose ankles and loose knees and adequate hip abduction. NEUROLOGICALLY, she was alert and apprehensive initially. She pointed to a number of pictures in a small coloring book and could identify most of them. I could not really get her to count at this point. When she was upset, she was indeed quite stubborn. Cranial nerves II-XII did show the pupils to be equal and regular and they did react to light. The extraocular eye movements were full. The left disc was flat. I did not get a good look at the right disc. She had full visual fields. There was no facial weakness or asymmetry. She had adequate auditory responses, a good gag, good palatal and pharyngeal movements and the tongue did remain midline. MOTOR EXAMINATION showed adequate muscle bulk. Tone was still a bit decreased. When walking, her gait was still a little bit unsteady and she had some tremulousness of her upper extremities. SENSORY EXAMINATION was intact to pin. . . . The plantars were indeed flexor. CEREBELLAR EXAMINATION showed no real dysfunction with hand movements. It should be mentioned that we did still have a failure to fully depress the left side of the mouth. IN SUMMATION, Katelyn is a 28 1/2-month-old young lady. She has a picture of an atonic diplegia which is clearly improving. She also has hypoplasia or absence of the left depressor anguli oris muscle. She does have a developmental language delay. I have suggested to her mother now some things that she could do to improve language at home. I do think she should be in a Mommy and Me program at least 1/2 a day a week which would improve language and improve behavior. We will try and see her in a 6-month time period and see how she is doing. The cause and significance of Katelyn's condition At hearing, neither Petitioners nor Respondent elected to call or present testimony from any of Katelyn's health care providers, including the physician who provided obstetrical services at birth, Katelyn's pediatricians, Katelyn's pediatric neurologists, Katelyn's orthopedic surgeons, or any of the other myriad of health care providers associated with her care, diagnosis and treatment. The parties did, however, introduce into evidence medical records dealing with Katelyn's birth and subsequent development and, presumably, those records adequately address the circumstances surrounding her birth and development, as well as the findings and opinions of her health care providers. Those circumstances, findings, and opinions are addressed supra. Notably, among the observations and opinions of those who treated Katelyn, there is no suggestion or finding that she suffered a debilitating neurologic injury at birth, whether by oxygen deprivation or otherwise. To the contrary, when called upon to address Katelyn's neurologic condition, it was noted as normal. Moreover, Katelyn's more pronounced anomalies are congenital or developmental in origin. Finally, there is no suggestion or finding by Katelyn's treating physician's that she is "permanently and substantially mentally and physically impaired." Rather, where observations are made, her mental condition is noted as age appropriate, and her physical condition as mildly delayed and improving. Apart from the circumstances, observations, and opinions reflected in the medical records, the parties offered the testimony of three physicians to address whether Katelyn "sustained an injury to the brain caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period," which rendered her "permanently and substantially mentally and physically impaired." Section 766.302(2), Florida Statutes. The physicians selected by Petitioners were Doctors Paul Gatewood and Houchang Modanlou, and the physician selected by Respondent was Dr. Lance Wyble. None of these physicians could be characterized as treating physicians, and none had examined Katelyn.12 Dr. Gatewood is a board certified obstetrician, and Dr. Modanlou is a board certified neonatologist. Each of these physicians, based on their review of the medical records, opined, without elaboration or explanation, that Katelyn suffered an injury to the brain caused by oxygen deprivation and trauma during the course of labor, delivery, or resuscitation in the immediate post-delivery period, which rendered her permanently and substantially mentally and physically impaired. Dr. Wyble, like Dr. Modanlou, is a board certified neonatologist. It was Dr. Wyble's opinion, based on his review of the medical records, that Katelyn's presentation at birth was not consistent with a brain injury, whether caused by oxygen deprivation or mechanical injury, suffered during the course of labor, delivery, or resuscitation in the immediate post-delivery period, and therefore her current condition must be attributable to some other cause or etiology. In so concluding, Dr. Wyble, contrasted with Doctors Gatewood and Modanlou, offered an explanation, based on the medical evidence, as to why he had reached such a conclusion. That explanation was credible, and was not addressed or rebutted by Petitioners. The explanation offered by Dr. Wyble was that, based on Katelyn's clinical course, there was no evidence of organic brain damage within the 24-hour period preceding delivery and the 5 or 6 day period thereafter. Such conclusion was predicated on numerous inconsistencies between Katelyn's presentation and the clinical findings one would expect had she suffered an injury to the brain, whether by oxygen deprivation or trauma. First, had Katelyn suffered such an injury during that period, one would reasonably expect evidence of damage to multiple organ systems, including the kidneys, heart, and lungs. Here, no such damage was evident. Additionally, evidence in the blood work mitigates against a finding of brain injury during this period. In this regard, it is observed that Katelyn's lymphocyte count at one hour of life was 10,442, but by the eleventh hour of life it was 7,667. Had an injury occurred during labor or delivery, the lymphocyte count should have remained above 10,000 beyond the eleventh hour of life. Additionally, the blood work related to renal function showed the serum sodium to be normal. Had an injury been suffered, the injury would have affected kidney function and the serum sodium would be low. Moreover, mitigating against injury to the kidney, the infant's urine output was excellent. Finally, Katelyn's clinical presentation following birth did not evidence any neurologic changes suggestive of injury to the nervous system. Specifically, had she suffered a neurologic injury at birth, or even shortly before birth, one would expect her neurologic status to be diminished, with poor responsiveness, for about 12 hours. Here, the infant was neurologically active and normal by one to two hours after birth. Moreover, had she suffered such a neurologic injury, beginning around 12 hours of birth and extending up to 24 hours, one would expect the infant to become hyperresponsive, with irritability, and she would most likely exhibit seizure activity. Here, Katelyn was neurologically normal during such periods. Given the proof, it cannot be concluded that, more likely than not, Katelyn's anomalies are associated with a brain injury caused by oxygen deprivation or mechanical injury occurring during labor, delivery, or resuscitation in the immediate post-delivery period, as opposed to some other etiology.13 Indeed, the more credible and persuasive proof is to the contrary. Similarly, the proof is not compelling that Katelyn is permanently and substantially mentally and physically impaired. In so concluding, the contrary opinions of Doctors Gatewood and Modanlou, have not been overlooked. However, the records on which they based their opinions do not reasonably support their conclusions. Consequently, the opinions of Doctors Gatewood and Modanlou are rejected as lacking in credibility and persuasiveness.
