The Issue Whether disciplinary action should be taken against the license to practice medicine of Respondent, Howard E. Gross, M.D., based on allegations that he violated Subsection 458.331(1)(t), Florida Statutes, as alleged in the Administrative Complaint in this proceeding.
Findings Of Fact Based on the oral and documentary evidence presented 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. At all times material to this proceeding, Respondent was a licensed physician in the State of Florida, having been licensed in 1971 and issued license number ME 0017039. Respondent has never been disciplined previously. Respondent is board-certified in internal medicine (1970) and cardiovascular diseases (1973). He is an interventional cardiologist. He has practiced medicine in Orlando since 1971. For the past 10 years, he has done a high-volume catheterization practice. In the most recent one-year period, he did approximately 500 interventional procedures and 400 diagnostic procedure, and in almost all instances, the catheterization involved a ventriculogram. On or about February 18, 1997, patient L. D. L., an 84-year-old male with a history of coronary artery disease, presented to Orlando Regional Medical Center, for catheterization and possible rescue angioplasty to be performed by Respondent. Respondent performed a cardiac catheterization on the patient. During the catheterization procedure, Respondent advanced a 6-French pigtail catheter into the patient's left ventricle and performed a ventriculogram by injecting what he thought was approximately 20cc of ionic dye, utilizing a MEDRAD injector. During the catheterization procedure, Respondent noted that he did not obtain opacification of the left ventricle and noted that free air was in the left ventricle. In fact, Respondent injected the patient with approximately 15cc to 20cc of free air rather than dye. As a result, the patient suffered cardiac arrest, and his blood pressure fell to zero. Respondent initiated various life-saving measures to counter the effects of the injection of free air, which were unsuccessful, and the patient was pronounced dead at approximately 1:55 p.m., as a result of cardiac arrest brought on by an air embolus. At the time, Orlando Regional Medical Center (hereinafter "ORMC") had a policy/procedure (No. 3233-MEDRAD- 0001) for Cardiac Catheterization Laboratory (hereinafter "Cardiac Cath Lab") personnel (Respondent's Exhibit 1). It delineated specific procedures to ensure "the use and safe applications of the power injector." In particular, it states the procedure to be employed by Cardiac Cath Lab staff in loading the MEDRAD injector. At ORMC and other hospitals, Cardiac Cath Lab personnel load the MEDRAD injectors without physician supervision. As explained by both expert witnesses, loading the syringe with dye is a very simple task for a nurse or scrub tech to perform. In the instant case, the nurse loading the MEDRAD injector interrupted the loading procedure because she was concerned about the patient's lab values (kidney function) and was uncertain about what type of dye Respondent would order. Respondent was not yet in the Cardiac Cath Lab. The nurse anticipated asking Respondent which type of dye he wanted and then loading that type dye into the MEDRAD injector. When she interrupted the loading procedure, the nurse left the plunger positioned in the syringe where it appeared that the syringe had been loaded with 20 to 25cc of dye and the injector arm pointing upward. The nurse then left the Cardiac Cath lab to get her lead apron anticipating only a monetary absence from the lab. Unknown to her, Respondent entered the Cardiac Cath Lab within seconds after her departure. Respondent was not in the Cardiac Cath Lab at any time while the nurse was manipulating the MEDRAD injector. As the nurse secured her lead jacket, she was called to another patient to administer medication which required the presence of a registered nurse per hospital procedures. In the nurse's absence, the catheterization and ventriculogram of the patient proceeded. The Registered Cardiovascular Technician (hereinafter "RCT"), observing the MEDRAD injector in what appeared to be a prepared state, wheeled it to the patient's side and lowered the injector arm into a position to receive the catheter. The RCT testified that a MEDRAD injector would never be left as she found it, plunger at the 20 to 25cc mark and arm elevated, if the machine was not loaded with dye. The ionic dye used in the procedure is clear and, due to the nature of the MEDRAD plunger and casing, it is extremely difficult to tell if dye is in the syringe. Further compounding the difficulty in observing dye in the syringe is the fact that the lights in the Cardiac Cath Lab are lowered during the procedure to allow better visualization of the video monitor. While the RCT positioned the MEDRAD injector at the patient's side, Respondent was in the process of entering the catheter into the patient, manipulating the catheter in the patient, visualizing its position in the patient's heart on the video monitor and monitoring hemodynamics. Petitioner's expert witness testified that Respondent did justifiably rely on the Cardiac Cath Lab personnel to follow the procedure outlined in Respondent's Exhibit 1. The nurse and cardiovascular technician did not follow the policy/procedure and, as a result, allowed the presence of air in the MEDRAD injector. After the catheter is properly located in the patient's heart, the external end of the catheter is attached to the MEDRAD injector. Petitioner's expert witness opined the Respondent should have used extension tubing to effect the connection between the catheter and MEDRAD injector. Testimony revealed that extension tubing is used by many physicians who perform cardiac catheterization. Respondent's practice was not to use extension tubing. Both Petitioner's and Respondent's expert witnesses agreed that Respondent's choice not to use extension tubing was a "technique" choice and did not fall below the "standard of care." Petitioner's expert opined that Respondent should have been present in the Cardiac Cath Lab to observe the loading of the MEDRAD injector. Testimony revealed that at ORMC and other hospitals it was the Cardiac Cath Lab staff's responsibility to load the MEDRAD injector without the direct supervision of physicians and that physicians are rarely in the lab when the MEDRAD injector is loaded. The "standard of care" does not require the physician to watch the loading of dye or the expulsion of air from the syringe in the loading process. Petitioner's expert opined that Respondent should have performed a test injection (a process where a small amount of dye is injected into the heart prior to the main injection). Respondent's expert testified that under certain circumstances (none of which is applicable to the instant case) test injections were appropriate; those circumstances occur less than 5 percent of the time. Electing not to perform a test injection in the instant case does not fall below the "standard of care." Petitioner's expert opined that Respondent should have observed a "wet to wet" connection between the catheter and the MEDRAD injector to ensure that no air is in the system. This is accomplished by withdrawing a small amount of blood from the catheter into the MEDRAD injector. Small air bubbles may appear between the blood and dye and are then "tapped" to rise to the top of the syringe. However, Respondent performed the "wet to wet" connection and did not observe anything unusual. He has historically performed some "wet to wet" connections where no air bubbles were present between the blood and dye as it appeared in this case. The RCT confirmed that Respondent performed the "wet to wet" connection, looked for air in the syringe, and tapped on the syringe to loosen and expel air bubbles. Respondent's expert witness testified that he performed an experiment creating a "wet to wet" connection with air in the MEDRAD injector syringe instead of dye. He found that the miniscus formed by blood and air in the syringe has an identical appearance to blood contacting dye in the syringe. The "wet to wet" connection between blood and air in the syringe has the same appearance as a "perfectly clean", "wet to wet" connection between blood and dye in the syringe. Respondent's expert witness testified that from five to ten percent of the time a "perfectly clean", "wet to wet" connection occurs in which no air bubbles appear between the blood and dye. Petitioner's expert witness testified that the physician must make absolutely certain that no gross amount of air is injected into the patient, and, relying on his view that the Respondent as the physician was the "captain of the ship," he testified that "the injection of this volume of air during the ventriculogram fell below the cardiology "standard of care." Petitioner's expert rendered his opinion based upon his examination of the hospital records. Respondent's expert rendered his opinion based upon his examination of the following: Administrative complaint with supporting documents. Dr. Allen Seals' (Petitioner's expert) report and deposition. Agency for Health Card Administration investigative report. ORMC's Code 15 report. Respondent's February 21, 1997 memo for peer review purposes. Hospital records. Death résumé. ORMC's MEDRAD policy/procedure. Experimentation with a catheter and MEDRAD injector. Respondent's expert testified that Respondent met the standard of care in the instant case because he practiced medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar circumstances. Based on the totality of the evidence presented, the undersigned rejects the expert opinion of Dr. Allen Seals, M.D., Petitioner's expert witness, and accepts as being more credible the testimony of David P. Browne, Jr., M.D., Respondent's expert witness.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding that Respondent is not guilty of violating Subsection 458.331(1)(t), Florida Statutes, as alleged in the Administrative Complaint. DONE AND ENTERED this 13th day of February, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 13th day of February, 2001. COPIES FURNISHED: Ephraim D. Livingston, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Robert D. Henry, Esquire Martin D. Buckley, Esquire Ringer, Henry & Buckley, P.A. Post Office Box 4922 Orlando, Florida 32801-4229 Tanya Williams, Executive Director Department of Health Board of Medicine 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 32399-1703 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
The Issue Whether Respondent's license to practice medicine in the state of Florida should be revoked, suspended or otherwise disciplined.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all time relevant to this proceeding, the Respondent was licensed to practice medicine in the state of Florida, having been issued license number 0024212. Respondent is also licensed to practice medicine in the states of Pennsylvania, New York, New Jersey and Illinois. Respondent is an anesthesiologist who was board certified in 1962, and has had experience as a professor of anesthesiology. The two cases involving patients L. Y. and O. G. that are in issue in this proceeding arose while Respondent was practicing at Manatee Memorial Hospital in Bradenton, Florida. It is the recovery room nurse's responsibility to fill out the post anesthesia care unit (PACU) record which documents the patient's course through the recovery room. The record includes notations which track the patient's activity, respiration, blood pressure, consciousness and color. Each category is scored on the basis of 0, 1 or 2. Each individual score is determined by the recovery nurse's observation of the patient and her judgment of the patient's condition at that particular moment. Ambu-bagging is a procedure whereby a mask with a reservoir bag of oxygen is placed over the nose and mouth of the patient and the bag is squeezed to force air and oxygen into the lungs of patient. Ambu-bagging is used in situations where the patient is not breathing and the procedure, in effect, breathes for the patient. PATIENT, L. Y. L. Y., a 72 year-old female who presented with abdominal pain and was initially evaluated in the emergency room of Manatee Memorial Hospital on March 22, 1988. The emergency room physician, James A. DeRespino, M. D., diagnosed the patient's condition on admission as abdominal pain/rule out perforated viscus. Jose Estigarriba, M. D., the physician called in for consultation on March 23, 1988 by Robert A. Fishco, the attending physician, diagnosed the patient's condition as acute abdomen, peritonitis, possible perforated viscus. L. Y. was in extremely ill health upon her admission. L. Y. had diabetes, chronic high blood pressure, coronary artery disease, recurrent heart failure, congestive heart failure and a history of pulmonary edema. L. Y. was on multiple medications for her diabetes and cardiovascular disease. Both Dr. Estigarribia, the patient's surgeon, and Dr. Fishco felt that immediate surgical intervention was necessary to determine and correct the problem. L. Y. initially refused to have the surgery for approximately 24 hours. However, after talking with Dr. Fishco the patient finally consented to surgery late in the afternoon of March 23, 1988, approximately 24 hours after admission to the hospital. After the patient consented to surgery, Dr. Estigarribia immediately discussed with the patient the various invasive monitoring techniques and retaining the patient on a respirator after surgery. The patient refused these procedures because of difficulties she had experienced during similar procedures in the recent past. At this point, Dr. Estigarribia determined that it was best to move the patient to surgery as quickly as possible and dispense with such devices as swan-ganz catheters because he was concerned that she may change her mind and decide against surgery. The Respondent was first notified of the surgery approximately fifteen minutes prior to L. Y. being transported to the operating room. Respondent saw the patient in the operating room and took a history. Dr. Estigarribia informed the Respondent of the urgent situation and of the patient's refusal to consent to ventilation therapy and invasive monitoring. Respondent anesthetized the patient using a rapid sequence induction. Dr. Estigarribia then performed an exploratory laparotomy, resection of the small bowel, end-to-end anastomosis, and peritoneal lavage on the patient. After the surgery was completed but prior to the patient being extubated, Respondent checked the patient's blood pressure (120/70) and pulse rate (90), found the patient's color to be good and her oximetry (oxygen saturation of blood) readings to be satisfactory. Just prior to extubation, the patient's blood pressure was 140 over 90, her pulse rate 90, her oximetry reading was 96, she was breathing on her own and was conscious to the point of being able to communicate with Respondent by opening her eyes when asked a question. After making certain that the patient was breathing on her own and was conscious, Respondent extubated the patient while still in the operating room. Shortly thereafter, approximately 10 minutes, the patient was moved to the recovery room. The patient progressed satisfactorily in the recovery room. The patient's PACU score upon arrival in the recovery room at 10:30 p.m. was 5 out of a possible 10, with consciousness and activity each being given a score 0 by the recovery room nurse and respiration a score of 1. However, within 10 minutes the patient had improved to a total score of 9, with a consciousness and activity each being given a score of 2 and the respiration score remaining at 1. The total score remained at 9 until 12 midnight, approximately one and one-half hours after the patient was delivered to the recovery room. At 12:30 a.m., approximately two hours after her admission to the recovery room, the patient's score dropped to a total of 4 and the patient experienced ventricle fibrillation and expired as a result of this cardiac event at approximately 12:47 a.m. There is competent substantial evidence in the record to establish facts to show that Respondent's treatment of patient, L. Y. was within that level of care, skill, and treatment recognized as being acceptable under similar conditions and circumstances at the time of extubation and subsequent recovery room care, notwithstanding the testimony of Dr. Monroe and Dr. Kruse to the contrary which was based primarily on the hospital's records and more specifically on the recovery room nurse's scores and notes in the PACU records. PATIENT, O. G. Patient, O. G., is a sixteen year old male athlete who sustained a fractured mandible in an athletic event. O. G. was admitted as an emergency case to the Manatee Memorial Hospital on June 9, 1988 with a diagnosis of acute fracture of the mandible and laceration of the mouth. On June 9, 1988 the patient's attending surgeon performed an open reduction of the right angle of the mandible and the removal of four impacted wisdom teeth. Respondent placed the patient under general anesthesia for the above scheduled procedure. When the operative procedure ended (at approximately 6:55 p.m.), Respondent remained in the operating room with the patient approximately 30 minutes to assess the patient's post-operative condition. While still in the operating room the patient exhibited the usual indicators for extubation. The patient's oximetry readings were good, his blood pressure and pulse were good, he was breathing on his own with adequate title volume, he responded when given verbal commands, and was able to lift his head. At this point in time, the patient was having adverse reaction to the tube used by Respondent to maintain the patient's airway. Based on his training and experience as an anesthesiologist, using the above indicators, the Respondent determined that the patient was ready to be extubated. The patient was extubated in the operating room by the Respondent before being transferred to the recovery room. Upon being delivered to the recovery room, at approximately 7:25 p.m., the patient's condition began to deteriorate. The patient's breathing became shallow and he did not respond to verbal commands. The Respondent had the recovery room nurse remove the blanket covering the patient so that the Respondent could observe the patient's respiratory pattern and coloration to determine if the patient needed assistance with breathing and to give assistance, if needed. The Respondent had the nurse place the patient on 100% oxygen. Normally, a patient is placed on 40% oxygen. The patient did not recover from the anesthesia as quickly as the Respondent had anticipated. Notwithstanding the recovery room nurse's testimony as to her observation of the patient's condition as set out in the PACU records, the patient's condition was not so life threatening as to require intervention by the Respondent prior to the time he decided to call in a pulmonologist. While I do not doubt the competence of the recovery room nurse, the Respondent's testimony that his observation of the patient's condition during this period of time led him to believe that it was not life threatening was more credible. It was the Respondent's observation of the patient's condition that guided him in choosing a conservative procedure in his handling of the patient. Although Respondent was assisting with other operations in the hospital during this time, he stayed within voice range of the patient and nurse, monitoring the patient's condition and periodically assisting or having the nurse assist the patient in breathing by using an Ambu-bag and when necessary, either the Respondent or the nurse, would suction off blood secretions through the nasal passage. The Respondent chose this conservative procedure of monitoring the patient's condition rather than performing a "blind" intubation through the nasal passage or by cutting the wires holding the patient's jaws shut and intubating through the mouth thinking the patient would respond without the necessity of reintubation. The first procedure would have involve the risk of pushing possible blood clots into the lower portion of the patient's airway, while the second procedure would necessitate that the patient undergo an additional operation. Eventually, when O. G. failed to respond, Respondent decided to reintubate the patient. However, since the Respondent had decided against a "blind" intubation through the nasal passage or cutting the wires on the jaws to intubate through the mouth, he decided to intubate using a fiber optic bronchoscope in order to visualize the airway and remove any blood clots that may have formed in the upper portion of the airway as a result of the surgery. This procedure would avoid the risk of pushing the blood clots down into the lower part of the patient's airway. Since Respondent was not a pulmonologist he was not given the privilege at Manatee Memorial Hospital to use a fiber optic bronchoscope. Therefore, Respondent sought the services of David Law, M. D., a pulmonologist on call at the hospital that evening, to perform the reintubation using the fiber optic bronchoscope. Dr. Law reintubated the patient using the fiber optic bronchoscope. Dr. Law found blood clots in the upper portion of the patient's airway which were removed before attempting the reintubation. The patient was then transported to the Intensive Care Unit and afterwards recovered satisfactorily. Dr. Law opined that he would not have attempted a "blind" nasal reintubation of the patient under the circumstances here because of the possibility of pushing blood clots down into the lower portion of the patient's airway. In the medical community a pulmonary physician is the specialist most experienced with the use of a fiber optic bronchoscope, and it would be unusual for a non-pulmonary physician to use a fiber optic bronchoscope under circumstances similar to those occurring with this patient. There is competent substantial evidence in the record to establish facts to show that Respondent's treatment of the patient, O. G. was within that level of care, skill, and treatment recognized as being acceptable under similar conditions and circumstances at the time of extubation and subsequent recovery room care, notwithstanding the testimony of Dr. Monroe and Dr. Kruse to the contrary which was based primarily on the hospital's records and more specifically on the recovery room nurse's scores and notes in the PACU records.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a final order dismissing the Administrative Complaint filed in this case. RECOMMENDED this 15th day of January, 1993, at Tallahassee, Florida. WILLIAM R. CAVE 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 15th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0596 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. Proposed findings of fact 1, 3, 4, 5, 6, and 9 are adopted in substance as modified in findings of fact 1, 6, 7, 5, 13, and 16, respectively. Proposed finding of fact 2 is unnecessary. Proposed finding of fact 7 is neither material nor relevant to the conclusion reached in the Recommended Order. Proposed findings of fact 8 and 16 go to the credibility of the expert witnesses and are unnecessary as findings of fact. Proposed findings of fact 10-15 and 17-22 are rejected as not being supported by substantial competent evidence since there is more credible evidence supporting a finding contrary to the findings set forth in these proposed findings of fact. 6. Proposed findings of fact 23, 24-25, 29, 30, 31, 33-35, 39- 42, 39, 40, 41, 42, 43 and 44 are adopted in substance as modified in findings of fact 19, 20, 21, 23, 22, 4, 23, 25 and 5, respectively. Proposed finding of fact 26 although acceptable is unnecessary. Proposed findings of fact 27 and 28 go to the credibility of a witness and while they may be accurate they are unnecessary. 9. Proposed findings of fact 32, 36-38, 45-51, 55-71, 73, 75, 77, 78, 80-82, 84, 85, 88-96 are accepted as the testimony of the recovery nurse and the experts who testified in this case and a reflection of the hospital's records, particularly the PACU records upon which the experts relied in given their testimony or opinions. However, they are not necessarily adopted as findings of fact because the more credible evidence is to the contrary. See findings of fact 22-30. Proposed finding of fact 52 is accepted but unnecessary since it relates to proposed findings of fact 53 and 54 which are rejected as not being supported by competent evidence in the record. See finding of fact 25. Proposed finding of fact 72 is rejected as not being supported by competent substantial evidence in the record. Proposed findings of fact 74, 76, 79 and 83 are adopted in substance as modified in findings of fact 27, 28, 30 and 24-26, respectively. Proposed finding of fact 86-87 are accepted but unnecessary since there was no showing that patient suffered heart failure and pulmonary edema. Proposed findings of fact 97-101, 103 and 104 are more a restatement of testimony than findings of fact but see findings of fact 24-26. Proposed finding of fact 102 deals more with the credibility of a witness but see finding of fact 24. Proposed finding of fact 105 is rejected, see findings of fact 24-26. Respondent's Proposed Findings of Fact. Proposed finding of fact 1 is unnecessary. Proposed findings of fact 2 - 20 and 22 are adopted in substance as modified in findings of fact 1, 2, 1 & 2, 3, 6, 7, 8, 8, 9, 10, 11, 12, 13, 14, 16, IS, 18, 17, 17 and 18, respectively. Proposed finding of fact 21 is more of a discussion of the testimony of Drs. Monroe, Kruse and Kozma rather than being stated as a finding of fact and is therefore, rejected. COPIES FURNISHED: Richard A. Grumberg, Esquire Senior Attorney Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Allen Bobo, Esquire Roger Lutz, Esquire Lutz, Webb, Bobo and Baitty, P. A. One Sarasota Tower Two North Tamiami Trail Sarasota, Florida 34236 Dorothy Faircloth Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue addressed in this proceeding is whether Respondent's license to practice nursing should be suspended, revoked, or otherwise disciplined for alleged violations of Chapter 464, Florida Statutes.
Findings Of Fact Respondent, Nan Lynn Baumgartner, is a licensed practical nurse in the State of Florida, holding license number PN-34192-1. Respondent was licensed in 1972. In 1974, Respondent was employed at Tallahassee Convalescent Home located in Tallahassee, Florida and during the time period relevant to this proceeding, worked the 3-11 p.m. shift. The Home's function is to provide for the care of its geriatric residents. Respondent had responsibility for 72 residents. Respondent was employed at the Center until April 26, 1988, when she was terminated by the facility for incompetent nursing skills, exercising poor judgment, failure to follow-up on orders and inability to pass out medications on time and appropriately. Ms. Baumgartner's employer suspected her performance problems were due to a alcohol or drugs. None of the evidence presented at the hearing clearly or convincingly established that Respondent had an alcoholic or drug abuse problem which impaired her ability to function. The bulk of the evidence which would have indicated such a problem was uncorroborated hearsay some of which was contradicted by other more reliable testimony. The remainder of the evidence which was relied upon by the Department to show impairment due to a drug or alcohol abuse problem was Respondent's demeanor, her lethargy and slowness in handing out medications, and various examples of her using poor judgment in performing her duties. All of these incidents occurred during a 1-1 1/2 month period during which Respondent had suffered four broken ribs in the fall from a horse. In fact, her doctor had advised her not to work for several weeks after her fall from the horse. However, Respondent could not get the time off from work and attempted to work during this period of time. As to Respondent's demeanor and lethargy, there was a great deal of conflict in the evidence depending on how each respective witness thought or assumed Respondent should behave. More importantly, however, is that Respondent's demeanor and lethargy during this time period can be attributed to some medical difficulties she had with her jaw and blood pressure and to the fact that she experienced a great deal of pain form her broken ribs. The examples of Respondent's judgment which Petitioner alleges demonstrate Respondent's poor judgment, frankly do not rise to such a level. The examples were: 1) Respondent called the oncall physician instead of the Director of Nursing when the oxygen concentrator being used by a patient malfunctioned; 2) She allowed a certified nursing aide to give oxygen to a patient; 3) She called the police when it was reported to her that a patient had mysteriously been burned; and 4) There was a patient who was not restrained. The incident involving the oncall physician simply does not demonstrate poor judgment. The fact that Ms. Baumgartner may or may not have followed some unproven chain of command in making her calls does not establish below standard judgment. She quite correctly called the physician who was on-call for that evening when she discovered the oxygen concentrator was not working. She then followed the Doctor's instructions. The alleged contents of a later conversation which occurred between the facility's Director of Nursing and the Doctor was the rankest of hearsay and is simply too unreliable to clearly and convincingly demonstrate poor judgment on Respondent's part. Connected with the oxygen concentrator incident was the incident involving Respondent's allowing a Certified Nursing Assistant to work the oxygen concentrator machine. The more persuasive evidence involving this incident was that it occurred during the oxygen concentrator's malfunction discussed above. A group of people surrounded the machine. One of the persons present around the machine was a CNA and at least two nurses were also present. They were attempting to figure out how to fix the oxygen machine. No one could and the Doctor was called. Given the fact that there were at least two other nurses present along with the CNA attempting to fix the oxygen machine, these facts do not clearly and convincingly demonstrate poor judgment on Respondent's part which would fall below minimum standards and constitute a breach of Chapter 479, Florida Statutes. Similarly, the facts surrounding the mysterious burn incident do not demonstrate that Respondent fell below minimum standards or failed to report the incident. There was no reliable evidence demonstrating Respondent's involvement in or knowledge of a patient being burned on her shift. Respondent was called at home around 3:00 or 3:30 in the morning. She had been asleep. The Respondent was called by Pat Yates, who was the charge nurse on the shift following Respondent. Respondent believed the incident had happened on Ms. Yates' shift. After Respondent spoke with Ms. Yates and because of some similar rumors about Ms. Yates floating around the facility, Respondent decided to call the police. 1/ She believed Ms. Yates was trying to "frame" one of the CNA's on Respondent's shift with whom Ms. Yates had a very heated argument at the shift change. Again this incident in which there was no reliable substantive evidence suggesting Respondent's involvement or responsibility, does not demonstrate poor judgment on Respondent's part or her failure to report the incident's occurrence. The incident involving the unrestrained patient likewise does not demonstrate poor judgment on the part of Respondent. The patient was prescribed by the doctor to be restrained on an as needed basis. The as needed prescription by the physician suggests that such restraints were not necessary all of the time unless the patient was showing some sort of behavior which would require her to be restrained. The evidence did not demonstrate that such restraints were needed on Respondent's shift. The only allegation established by the Department was that for approximately a month to a month and a half Respondent was extremely slow in passing out medications to the patients. The center had established medications at 5:00 p.m. and 9:00 p.m.. The 5:00 p.m. medication pass took approximately an hour and a half to perform. The 9:00 p.m. medication pass took approximately 45 minutes to an hour to perform. Respondent frequently, for at least half of the month to a month and a half time period would be handing out medications three hours late. It was not demonstrated that she was not documenting or charting the lateness of these medications since no medical records were introduced into evidence and the testimony on that point was unclear. The standard practice in Florida is to attempt to pass medicine to nursing home residents within plus or minus one hour of the designated time. The fact that the desired hour leeway is not always obtained does not indicate that a nurse is falling below minimum standards. The number of patients to be served, the difficulty in getting the patient to take his or her medication, and the types of medication being given all enter into the determination of whether a nurse is falling below minimum standards in the length of time it takes her to pass out medications. None of these factors were presented at the hearing. 2/ Without, such specific evidence it is impossible to determine whether Respondent was falling below minimum standards. 3/
Recommendation It is accordingly, RECOMMENDED: That the Division enter a Final Order dismissing the Administrative Complaint against Respondent. DONE and ORDERED this 1st day of October, 1990, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1990.
The Issue Whether or not Respondent, Walter Ray Deal, M.D., violated Subsection 458.331(1)(t), Florida Statutes, and, if so, what discipline should be imposed?
Findings Of Fact Based on the evidence and the testimony of witnesses presented and the entire record in this proceeding, the following findings of fact are made: Petitioner, Department of Health, Board of Medicine, is the state agency charged with regulating the practice of medicine pursuant to Section 20.42, Florida Statutes, Chapter 456, Florida Statutes, and Chapter 458, Florida Statutes. Respondent, Walter Ray Deal, M.D., is and has been, at all times material to the Administrative Complaint filed in this matter, a licensed physician in the State of Florida, having been issued license number ME 0056589. At or around 6:25 p.m. on April 6, 2000, Patient E.R. presented at the Emergency Room of Morton Plant Mease Health Care/North Bay Hospital, with pain and swelling in the right lower extremity. The Emergency Triage/Assessment Form, which is completed by nurses in the Emergency Room, reports that Patient E.R., who was first seen at 6:30 p.m., was 73 years old and had a chief complaint of "pain to RLE [right lower extremity] for a very long time, swollen . . ." This form also contains information on Patient E.R.'s current medical status including medications and a medical history. Respondent first examined Patient E.R. at approximately 7:15 p.m.; she reported her chief complaint to be chronic pain in the right knee which had worsened since Dr. Zaidi, a rheumatologist, had drained the knee. During his examination, Respondent checked (placed a checkmark) on the Emergency Physician Record indicating that in his examination he found the patient's heart had regular rate and rhythm and normal heart sounds. At 7:30 p.m., Respondent noted in Patient E.R.'s treatment plan: "Labs, Pain Meds, IV Antibx." This record reflects that Respondent ordered that the patient be administered 50 mg of Demerol and 50 mg Phenergan and 500 mg of Leviquin intramuscularly and the ESR (erythrocytic sedimentation rate), which is a nonspecific test for inflammatory responses. The pain medication appears to have been administered almost immediately (7:35 p.m.); the antibiotic at approximately 8:12 p.m. There is controversy about what "Labs" were ordered by Respondent. His testimony indicates that he ordered the CBC, the comprehensive metabolic, and the urine laboratory chemistries. The hospital records indicate that the following additional diagnostic tests were ordered: Cardiac Enzymes and Troponin chemistries, an E.K.G. and portable chest x-ray. It appears from the hospital records that a different writing instrument (the ink colors are different) and, perhaps, a different hand ordered the diagnostic tests mentioned in this paragraph. The results of the chemistries ordered by Respondent are reported on the Emergency Physician Record; the Emergency Physician Record does not contained results of an E.K.G. or x- ray. In addition, laboratory reports for non-cardiac-related chemistries are on Lab Acn# 54968; laboratory reports for cardiac related chemistries are on Lab Acn# 54984. While the sample collection time for the blood tests is 7:20 p.m., the cardiac-related tests were conducted later in the evening than the non-cardiac related tests. The controversy regarding what tests were ordered by Respondent is further clouded by the testimony of Rajesh Dave, M.D., who in the late evening of July 6, 2000, admitted Patient E.R. to the hospital, and Respondent's narrative letter dated February 1, 2001, directed to the Agency for Health Care Administration, in which he acknowledges ordering all of the diagnostic tests mentioned hereinabove. Prior to hearing, Respondent retracted the admission contained in his letter to the Agency for Health Care Administration to ordering the Cardiac Enzymes and Troponin chemistries, the E.K.G. and chest x-ray. The retraction was based on confusion between Respondent and his attorney which was confirmed by the testimony of Edward Copeland, Esquire, the attorney who prepared the narrative letter signed by Respondent. I find that the testimonies of Respondent and Mr. Copeland are credible and find that someone other than Respondent ordered the diagnostic tests which are in question. Dr. Dave denied ordering the cardiac-related tests; he denies even being in the hospital that evening. His testimony is in conflict with Respondent's and Emergency Room Nurse Don Giffin's nursing notes, which state: "Dr. Dave here to examine patient and wrote orders." Dr. Dave became responsible for Patient E.R.'s care and treatment when she was ordered admitted to the hospital at 9:45 p.m. Respondent testified that he had two conversations with Dr. Dave on July 6, 2002; the first, a telephone conversation, immediately prior to first seeing Patient E.R. and the second, a face-to-face conversation, at approximately 9:30 p.m. at the front desk of the Emergency Room. After the second conversation, Respondent wrote orders to admit Patient E.R. for a "23 hour admission" to the hospital as Dr. Dave's patient and ordered consultations with other physicians. He wrote other admission orders, ordered medications and "ivf d5 1/2 NS 40 meq kcl/l @ 125cc hr" (intravenous fluids one-half normal saline with 40ml equivalents of potassium chloride per liter at 125 cc per hour). North Bay Hospital protocol does not allow an Emergency Room physician to admit a patient to the hospital. Respondent was acting as a scrivener for Dr. Dave when he entered the orders admitting Patient E.R. to the hospital. At 8:17 p.m. the laboratory reported to the Emergency Room that Patient E.R. had a low serum potassium level. Petitioner's expert witness opined that Respondent fell below the standard of care when, after becoming aware of the low serum potassium level (which the expert deemed "critically low"), he did not immediately order an E.K.G. to determine the appropriate speed of potassium supplementation. He further opined that Respondent either did not read the E.K.G. or did not properly evaluate it. He further opined that the rate of potassium supplementation as ordered by Respondent was completely inadequate. The results of the Cardiac Enzymes and Troponin tests were normal. The E.K.G. test was given and the results simultaneously published at 10:04 p.m. The E.K.G. showed a run of non-sustained ventricular tachycardia which is a potentially fatal arrhythmia. After being ordered admitted as a 23-hour admission as Dr. Dave's patient at 9:45 p.m., Patient E.R. arrived at the 23- hour floor at 10:30 p.m. The hospital records reflect that at 10:20 p.m., the floor nurse was advised by the Emergency Room nurse of the low serum potassium, of the physician's orders for potassium supplementation, and that the potassium supplementation ordered was not available in the Emergency Room. The 23-hour floor nurse's notes reflect that she "advised that we have none at this time." Following Patient E.R.'s admission, at approximately 10:45 p.m., Dr. Dave was called and advised of the admitting orders including the rate of potassium supplementation. While he changed some of the orders, he did not change the rate of potassium supplementation. He did change Patient E.R.'s admission from a 23-hour admission to a full admission which necessitated transferring Patient E.R. to the Third Floor of the hospital. At 11:10 p.m. the 23-hour floor nurse received a bed assignment on the Third Floor and gave a report to the Third Floor nurse; the 23-hour floor nurse's notes include the following: "report . . . including low K [potassium] and need for D5 1/2 NS c 40 meq KCL [the ordered potassium supplementation] she said they had on 3rd floor and will be able to start fluids." The 11:55 p.m. Third Floor nurse's notes reflect that the "IVF started." Patient E.R. expired shortly after 3:00 a.m. Respondent's expert witness opined that Respondent did not fall below the standard of care in his treatment of Patient E.R.; that is, that Respondent practiced 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. He opined that Respondent rendered appropriate treatment to Patient E.R., who presented with knee pain and had no cardiac or respiratory complaints. He further opined that, while the serum potassium level was low and needed to be addressed, no symptoms or complaints were demonstrated pertaining to low potassium level and nothing was evident that raised cardiac issues; the low potassium was not critically important in this clinical situation and was a common presentation for an older person. He opined that based on the clinical evaluation and findings by the Emergency Room staff and physician, even with the low potassium, no E.K.G. was warranted. I find the opinion rendered by Respondent's expert witness to be more credible than the opinion offered by Petitioner's expert witness and accept the opinion of Respondent's expert. Respondent's expert's opinion was reinforced, in part, by the continuing treatment afforded Patient E.R. by Dr. Dave after she was admitted to the hospital.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding that Respondent is not guilty of violating Subsection 458.331(1)(t), Florida Statutes, as alleged in the Administrative Complaint. DONE AND ENTERED this 2nd day of July, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 2nd day of July, 2002. COPIES FURNISHED: Ephraim D. Livingston, Esquire Agency for Health Care Administration Post Office Box 14229, Mail Stop 39A Tallahassee, Florida 32317-4229 William Taylor, Esquire Macfarlane, Ferguson & McMullen Post Office Box 1531 Tampa, Florida 33601 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R.S. Power, Agency Clerk 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 Whether disciplinary action should be taken against Respondent's license.
Findings Of Fact Dr. Hunt is and has been at all times material, licensed by the Florida Board of Medicine. His license number is ME 001081. The Department of Health is charged with regulating the practice of medicine. The Department of Health may contract with the Agency for Health Care Administration (AHCA) to provide investigative and prosecutorial services required by the Division of Medical Quality Assurance, councils, or boards, as appropriate. In this case, ACHA provided those services to the Department of Health. The Board of Medicine is an administrative body statutorily situated under the Division of Medical Quality Assurance. On the evening of June 28, 1999, Dr. Hunt was on duty in the emergency room of the Memorial Hospital-West Volusia. Memorial Hospital-West Volusia subsequently became known as Florida Hospital Deland (Hospital Deland). At 9:35 p.m., on June 28, 1999, Patient V.V., a 22-month-old female, was brought by her father to the emergency room of Hospital Deland with a complaint of fever and shortness of breath. It was reported to emergency room personnel that V.V. had experienced shortness of breath for many hours before she was brought to the emergency room. V.V. was born on August 29, 1997. V.V. had a history of multiple congenital deformities including panhypopituitarism and a severe cleft lip and palate, among other medical problems. V.V. had visited Hospital Deland at least 68 times previous to her visit of June 28, 1999. Panhypopituitarism means that the part of the brain that regulates all of the glands and hormones that the body requires to function, is not functioning. This gives rise to a host of problems, including hypothyroidism, retarded growth, and holoprosencephaly. This latter term means that the brain does not progress or develop much beyond the fetal stage. V.V. also experienced seizures and sodium imbalances which would range from very high to very low. V.V. was described by her Board-certified pediatrician, Dr. Susan Griffis, as being very difficult to manage medically. Dr. Griffis described V.V. as being basically in a vegetative state. She noted that V.V.'s deformities were not compatible with long-term existence. V.V.'s prognosis at birth was a life span of two years. By June 28, 1999, she had attained the age of 22 months. At 9:35 p.m., Nurse Hilbun noted a respiration of 60 and determined, through the use of a pulse oximeter, that V.V.'s concentration of oxygen was 60 percent. V.V. was placed on 100 percent oxygen along with an aerosol medicine through the application of a nonrebreather mask. V.V.'s skin was dry and pink which indicated that she was getting sufficient oxygen. Dr. Hunt, on June 28, 1999, first saw V.V. at 10:00 p.m. He conducted a physical examination which revealed, among other things, that the child had shortness of breath and a temperature of 101.8 degrees. The child was diagnosed with bilateral pneumonia. At 10:16 p.m., Dr. Hunt ordered diagnostic studies including a chest X-ray and laboratory studies, which include an RSV test for virus, and a complete blood count (CBC). The CBC could not be obtained because blood could not be drawn. Blood could not be drawn because V.V.'s veins were very small and because of scarring from numerous previous extractions of blood. Dr. Hunt attempted to contact Dr. Griffis, V.V.'s pediatrician, for advice on a course of treatment but was unable to reach her. Dr. Hunt then contacted Dr. Reinertsen, the pediatrician on call who advised Dr. Hunt to intubate the patient and transfer her to Arnold Palmer Hospital in Orlando. It cannot be determined from the record exactly when this telephone call transpired. Dr. Reinertsen did not come to the emergency room. Arnold Palmer Hospital had an intensive care pediatrics unit. No intensive care pediatrics unit was available at Hospital Deland. Dr. Hunt did not transfer the child because he determined that V.V. was not stable to the point where she would survive the trip. He also did not follow Dr. Reinertsen's advice to immediately intubate the child, nor was he required to follow his advice. At 9:35 p.m., V.V.'s oxygen saturation was 60 percent and she had a heart rate of 160. At 9:45 p.m., she had an oxygen saturation of 85 percent. At 11:00 p.m., V.V's oxygen saturation was 98 percent and her temperature had improved to 100.6 degrees. At 11:40 p.m., respiration had improved to 52 and her heart rate was down to 140. At 1:40 a.m., June 29, 1999, respiration was 52, her heart rate was 142 and oxygen saturation was 95 percent. At 2:30 a.m., respiration was 52 and her heart rate was 142. At 3:00 a.m., respiration was 60, her heart rate was 146 and oxygen saturation was 95 percent. During this period, from 9:35 p.m. until immediately before 3:00 a.m. on June 29, 1999, V.V. was not sufficiently stable for transfer but her condition was not deteriorating. At approximately 4:00 a.m., V.V.'s condition took a dramatic turn for the worse. The child began to have difficulty breathing and was experiencing apnea. When the child's condition began to deteriorate, Dr. Hunt asked for and received permission from V.V.'s parents to intubate V.V. Although V.V. had been placed on oxygen shortly after arrival, an oxygen mask will only put oxygen into the lungs. It will not facilitate exhalation. Intubation, if successful, provides a clear passage to the lungs and facilitates both inhalation and exhalation. Dr. Hunt was unsuccessful in intubating V.V. An anesthesiologist was called in and eventually succeeded in intubating V.V. Nevertheless, V.V. continued to rapidly deteriorate, and suffered cardiac and respiratory arrest at approximately 5:00 a.m. Unsuccessful efforts were made to defillibrate V.V. with electric paddles at 5:12 a.m., 5:13 a.m., and 5:14 a.m., but the child could not be resuscitated. Intubating any baby is a difficult and dangerous task. Intubating a baby with the deformities that characterized V.V. is particularly dangerous because the tube could easily penetrate the brain instead of going down the back of the throat as it should. V.V. had been hospitalized at Shands Hospital for a repair of her cleft palate and cleft lip when she was approximately 18 months of age. Shands is a well-known research hospital with a superb reputation. Before the repair could be accomplished, it was necessary to intubate V.V. and the surgeons at Shands were unable to do it. Dr. Hunt was aware of this. Because of these factors, Dr. Hunt was reluctant to intubate V.V. The testimony of the State's Expert Mark Slepin, M.D., testified as an expert witness in the area of the delivery of emergency medical care. He is the chief operating officer and chief compliance officer for ECS Holdings. ECS Holdings is a company which provides quality assurance services, among other things, to hospitals throughout Florida and to hospitals in many other states. Dr. Slepin served a residency in emergency medicine at the University Hospital, Jacksonville. Dr. Slepin practiced emergency medicine for ten years at hospitals in the southeastern Virginia area. He practiced at St. Mary's and Good Samaritan Hospitals in West Palm Beach, and at hospitals in Milton and Sarasota, prior to joining ECS. He is Board-certified in emergency medicine. He was accepted as an expert in the practice of emergency medicine. Dr. Slepin reviewed V.V.'s hospital records and statements made by Dr. Hunt. He opined that Dr. Hunt, for the most part, practiced within the standard of care that is expected of a reasonably prudent emergency physician with regard to his evaluation of the patient, his work-up of the patient, and his initial management of the patient in the early stages of the patient's course in the emergency room. Dr. Slepin thereafter opined that the plan of care was not a plan that a reasonably prudent emergency physician would take. There was no written "do not resuscitate" order. He opined that under those circumstances Dr. Hunt should have either admitted V.V. into the hospital or transferred her to a hospital with appropriate resources. Moreover, Dr. Hunt failed to provide appropriate airway management, in his opinion. He opined that Dr. Hunt left the patient in limbo for five hours and, therefore, the patient eventually succumbed because there was no definitive airway intervention in a patient who needed airway intervention. Dr. Slepin opined that the medical records adequately documented the patient's response to therapy and progress, except that there should have been additional physician's notes regarding the patient's progress filed between the initial evaluation and the eventual demise. The testimony of the Respondent's Experts Donald Hilbun, Jr., is a registered nurse who has a bachelor of science degree in nursing from the University of South Alabama. He was a medic in the military for three years and practiced in the labor and delivery unit of a military medical facility in Alaska where he delivered health care to babies. He is certified by the American Heart Association in advanced cardiac life support. Nurse Hilbun had worked at the Hospital Deland for one year on June 28, 1999. He was accepted as an expert on the practice of nursing. Nurse Hilbun prepared nurses notes for V.V., which were part of the overall medical record of V.V.'s care. It is Nurse Hilbun's opinion that V.V. was never stable enough to permit a successful transfer to the Arnold Palmer Hospital. He does not believe Dr. Hunt withheld appropriate treatment. Jay Edelberg, M.D., is a Board-certified emergency room physician. He has a degree in dentistry and received his medical degree in 1975. He did a surgical internship for one year at St. Francis Hospital in Hartford, Connecticut, and did an emergency medicine residency from 1976 to 1978 at what is now called Shands of Jacksonville. He is currently in private practice. He also works in the emergency room of Flagler Hospital which is similar in size to Hospital Deland. Dr. Edelberg has had a contract with the AHCA for the last seven or eight years. The contract provides that he is to review cases relating to emergency room physicians. He gives written opinions, when asked, to the probable cause panel of the Board of Medicine. He was accepted as an expert in the field of emergency room medicine. Dr. Edelberg reviewed V.V.'s hospital records. He opined that when treating a patient who is having shortness of breath, intubation is done only as a last resort. He opined that Dr. Hunt's decision to intubate V.V. at the time he did was the correct decision and that it would have been a mistake to have done it earlier. Dr. Edelberg opined that the events of the evening of July 28, 1999, and the morning of July 29, 1999, were adequately documented by Dr. Hunt. Dr. Edelberg pointed out that Dr. Reinertsen was on-call for Dr. Griffis, V.V.'s pediatrician. He was not on- call for the emergency room. He also pointed out that when someone like Dr. Reinertsen is consulted, unless that person comes in and takes over the case, it is the emergency room physician who must ultimately make all of the decisions with regard to care. Dr. Edelberg stated that it was his opinion, within a reasonable degree of medical certainty, that the care provided to V.V. met the required standard of care. Conclusion On the whole, the expert testimony of Dr. Edelburg and Nurse Hilbun, was more persuasive than that of Dr. Slepin.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been a physician licensed to practice in the State of Florida, having been issued license number ME 0025685. For 18 years prior to the event complained of herein, Respondent worked at Indian River Memorial Hospital, where he practiced as an anaesthesiologist. Also prior to the event complained of herein, Respondent was a tri- athlete, training in swimming, biking, and running. During the summer of 1992 he competed in five or six tri-athalons and did quite well in his age class. Respondent was also a snow skier. In accordance with his physical fitness values, Respondent does not drink alcoholic beverages or smoke cigarettes. He is also a vegetarian. Peter G. Wernicke is an orthopedic surgeon in the Vero Beach area. After arriving there, he and Respondent became social friends and went on ski trips together. He also became Respondent's treating physician, caring for Respondent when Respondent suffered broken bones, strains, and sprains as a result of his sporting activities. In early winter of 1992 Respondent seriously injured his knee while snow skiing. Respondent discussed his need for surgery with Wernicke after Respondent returned to the Vero Beach area. Wernicke was insistent that he perform Respondent's knee surgery, but Respondent wanted to have the surgery performed by Dr. Richard Steadman in Vail, Colorado, since he believed that Dr. Steadman was probably the best in the world at taking care of that particular kind of knee injury. Wernicke then insisted that Respondent allow Wernicke to perform the knee surgery with Respondent awake, and once the knee was opened up, Wernicke and Respondent would look at it and decide whether it was something Wernicke was able to take care of or if the knee should be closed and Respondent would then go to whomever he wanted to have the surgery performed. Respondent would not agree to that approach since he well understood that opening the knee twice would double Respondent's risk of infection in that injured knee. Up to the time that Respondent left to travel to Vail for his knee surgery, Wernicke maintained that he was not giving Respondent his blessing for having the surgery performed by someone else. Respondent went to Vail and had Dr. Steadman perform the surgery in early December of 1992. Respondent remained in Vail post-operatively undergoing physical therapy which commenced within hours of surgery being completed to increase his chances of obtaining full range of motion with that knee by keeping it moving and preventing scarring. Respondent returned to Vero Beach on December 13 and returned to work the next morning, working a full shift that day. After his shift was over, he drove himself to Orlando for a meeting. While in Orlando, Respondent began to have very severe pain and swelling in his knee. He drove back to Vero Beach, arriving at his home at approximately 9:30 p.m. Upon his arrival, he telephoned Wernicke, told Wernicke he was in a great deal of pain, and begged Wernicke to help him by meeting him at the hospital and looking at Respondent's knee. Wernicke told Respondent that he would not go to the hospital to meet Respondent, that Respondent should elevate his knee and apply ice, and then see Wernicke in the morning. Respondent elevated his leg and applied ice for the next few hours. By approximately midnight the pain had become "absolutely excruciating," unlike any Respondent had experienced with all of his broken bones and other sports injuries. Although Respondent's tolerance for pain was high enough that he had gone through the surgery performed by Dr. Steadman without pain pills and had tolerated getting on an exercise bike 12 hours after that surgery, Respondent knew that he could no longer endure the pain, that he had a serious problem with his post-operative knee, and that he needed to get help immediately. Respondent got himself up with crutches and got in the car to drive himself to the emergency room. While driving, he telephoned the emergency room at Indian River Memorial Hospital and told the staff he was on his way there and asked the name of the orthopedist who was on call. He was advised that Dr. Wernicke was not only on call, but was present in the emergency room at that moment. Respondent told the emergency room staff to tell Wernicke to wait for him. Respondent then called the operating room at Indian River Memorial Hospital and asked if an anaesthesiologist were there so he could get something to relieve his pain. He was told that Dr. Brennan had just finished with surgery and had taken the patient to the intensive care unit. Respondent then asked for two things: (1) to have Dr. Brennan go to the emergency room to take care of Respondent and (2) to bring Respondent's anaesthesia cart to the emergency room. The operating room staff agreed. Respondent's requests resulted from his experience with that hospital's emergency room staff and procedures. He knew he needed medication for his knee and for his pain. He knew that Dr. Brennan was not employed by the hospital and did not have his own anaesthesia cart there. He knew that the emergency room staff were notoriously slow in responding to patient needs or doctor requests. Therefore, over the years, Respondent had learned that whenever he was called to the emergency room, the patient was better served if Respondent took his own anaesthesia cart and supplies with him. As a result of his telephoning ahead, Respondent's arrival was expected. Dr. Wernicke waited for him. Someone took Respondent's anaesthesia cart to the emergency room and placed it next to a stretcher. Dr. Brennan was paged and told that Respondent needed him in the emergency room, and Dr. Brennan went to the emergency room to assist his colleague. When Brennan got there, Respondent had not yet arrived, but Wernicke was present. Brennan told Wernicke he was there to help with Respondent. For whatever reason, Wernicke told Brennan that Brennan was not needed and told him to leave. Before leaving the emergency room, Brennan told Wernicke that if he were needed he would be nearby in the intensive care unit and to please summon him. Respondent arrived at the hospital emergency room on crutches. The emergency room was currently under construction and had no dividing walls or partitions so that it was simply one room in which everyone could see everything occurring. There were no patients in the emergency room when Respondent arrived, but there were three or four nurses and the emergency room doctor at the nurses' station. Respondent went to the nurses' station to be admitted. He was told that he should wait in the lobby and he would be called when they were ready to begin the admission process. Respondent refused to do that, told them he was in excruciating pain, and insisted that he be given the emergency room release form and financial responsibility form to sign and be taken to one of the emergency room stretchers. He was given the forms to sign, which he did, and he was then escorted to the stretcher next to his anaesthesia cart. For the remainder of his time in the emergency room, Respondent remained on that stretcher which was no more than 30 feet from the nurses' station. No chart for his emergency room visit was prepared by the hospital personnel. Further, no one took his vital signs; no one took his blood pressure; no one asked what his problem or complaints were which caused his visit; and no one asked whether Respondent had any allergies or had recently eaten. Respondent lay on the stretcher waiting for Wernicke to return to the emergency room for approximately five minutes. When Wernicke came in, he was wearing a big smile. He remarked to Respondent that Wernicke could see that Respondent had a problem with his knee. Wernicke then gave one swipe across Respondent's knee with an alcohol swab and prepared to jab an 18 gauge needle into the knee to aspirate it, i.e., to drain the fluid. Respondent became terrified and told Wernicke to stop. Respondent's terror was caused by two fears. First, it was apparent that his knee was full of blood. He knew that blood outside of its normal confines is an irritant which causes inflammation and he knew that it was also the perfect medium in which bacteria could grow. He also knew that the risk of infection in his knee was substantial because it was a post-operative knee. Infection in such a knee presents a best-case scenario of a damaged knee and a worst-case scenario of rendering him a cripple, requiring a total knee replacement. Yet, Respondent saw that Wernicke intended to stick the needle into Respondent's dirty knee without even using a Betadine preparation to remove bacteria from the skin. Second, Respondent was in "unbelievable" pain from the significant swelling in his knee. The surgical incisions above and below his knee had ruptured from the pressure caused by the swelling. In order for Wernicke to aspirate Respondent's knee, it would be necessary for him to poke his fingers into the swollen knee area in order to locate the right place to stick the needle, and it was impossible for Respondent to hold his leg still for Dr. Wernicke to palpate, let alone insert the needle in the correct location. Respondent told Wernicke that he needed an I.V. started; that he needed Kefzol, an I.V. antibiotic, to prevent infection; that he needed Toradol intravenously for its anti-inflammatory effect; and that he was in very, very severe pain and needed pain medication so he could hold his leg still for Wernicke to aspirate. Although Wernicke recognized that Respondent was in significant, severe pain, he told Respondent he would agree to the antibiotic and he would agree to the anti-inflammatory, but that he didn't think Respondent needed anything for pain. Respondent's anaesthesia cart was not equipped with I.V. fluids. Someone brought an I.V. bag and set-up. Respondent does not know who brought the I.V. and whether it was on Dr. Wernicke's order or ordered by the emergency room doctor, but Respondent did not order the I.V. brought. No one offered to start Respondent's I.V. for him, and Wernicke did not tell Respondent that Dr. Brennan had come to the emergency room, had been sent away by Wernicke but was nearby, and had told Wernicke to summon him if he were needed. Wernicke kept telling Respondent to hurry up because it was late and he wanted to go home. He told Respondent that they needed to get finished because Wernicke was doing Respondent a favor just by being there. Respondent, while still lying on his stretcher, started his own I.V. Wernicke assisted Respondent by handing him tape for the I.V. since Respondent was performing the task with one hand. Respondent then removed his medication box from the bottom of his anaesthesia cart. He took out an ampule of Kefzol, a dry powder. He took a syringe and drew fluid from the I.V. that was running into him and mixed up that dry powder antibiotic by flushing it back and forth. He then gave the antibiotic to himself. He attempted to delay Wernicke from inserting the needle into his knee until after the antibiotic could circulate through his system and get to his knee before any bacteria was introduced, a process which would take approximately six minutes to complete enough circulations. Respondent next prepped his own knee with Betadine solution while Dr. Wernicke continued to stand there by his side, watching him. Respondent then took an ampule of Toradol, a new anti-inflammatory medication, and gave himself 60 milligrams intravenously, while Wernicke stood and watched. Although that anti-inflammatory medication would also serve to reduce Respondent's pain, Toradol is a slow-acting medication in that regard, having a slow onset but thereafter lasting for a number of hours. Respondent then removed from his medication box a 5 cc ampule of Alfenta. That ampule is a 2 1/2 inch object made of glass with its name in blue lettering on the outside, large enough to read. Alfenta is a Schedule II controlled substance and is a narcotic. Alfenta has a fast onset and a fast offset; it works in 30 to 60 seconds, and its effect lasts for approximately 10 minutes. While Dr. Wernicke watched, Respondent filled a needle and gave himself 1 cc of Alfenta which is a very conservative test dose for a man weighing 190 pounds who is in good condition. Respondent then waited a minute or a minute and a half to see what effect it had on his pain level and trembling leg. It had very little effect. Therefore, Respondent injected an additional 1/2 cc and waited. That additional amount was sufficient. Wernicke watched as Respondent gave himself the Alfenta, standing, as he had been, within inches of Respondent. As he injected the medications, Respondent filled out the chart on his anaesthesia cart, noting the medication, the dosage, and that he was the patient. Respondent then laid back on the stretcher, closed his eyes, and then told Wernicke he was ready. Wernicke then palpated Respondent's knee and inserted the needle to aspirate Respondent's knee. The pressure in his knee was so high that it blew the syringe back. Wernicke commented that he had never before seen that happen and had never seen pressure like that. Wernicke withdrew approximately 100 ccs of fluid from Respondent's knee, commenting that he did not think he'd seen one with more volume. Although initially Wernicke had said that he did not agree that Respondent needed any pain medication, Wernicke totally acquiesced in everything Respondent did to assist Wernicke in treating Respondent. Wernicke accepted Respondent's judgment and watched Respondent execute step by step the course of treatment Respondent said was needed to render proper medical treatment. Wernicke totally agreed and acquiesced with the use of Alfenta as much as he did the antibiotic and the anti-inflammatory as evidenced by Wernicke's own conduct. Wernicke never told Respondent to stop doing Wernicke's work for him. Wernicke never told him not to administer the medications. Wernicke never suggested that he or someone else perform the administration. Wernicke could have easily stopped Respondent who was laying on a stretcher but did not. Wernicke knew that Alfenta was a pain killer and a narcotic. He did nothing to stop or prevent Respondent from injecting a medication Respondent needed. Further, Wernicke continued to treat Respondent after the administration of Alfenta by thereafter performing the aspiration. After he completed the aspiration, Wernicke left. Respondent lay on the stretcher for a little while. The nurses and the emergency room doctor remained at the nurses' station, and there were still no other patients in the emergency room. Respondent asked if someone would bring him a wheelchair so he could leave, and he was told that they were too busy. Respondent took his crutches and hobbled out of the emergency room. The next morning Respondent reported to work for his regular shift which began at 7:00 a.m. After Respondent completed the first case on his shift that day, at approximately 10:30 to 11:30 a.m. he called Haynes McDaniel, the hospital's pharmacist, and told him what had happened the night before, what medications Respondent had used, and that he had used the medications on himself. Respondent said he needed to do whatever paperwork the pharmacist wanted and specifically asked the pharmacist to bill him for the medications he had used. McDaniel told Respondent that there was no problem regarding the Kefzol and the Toradol and that he would simply send Respondent a bill for those medications; however, as to the Alfenta, the pharmacist needed a prescription for his records. McDaniel asked Respondent who the attending physician had been, and Respondent told him that Peter Wernicke was the attending doctor. McDaniel told Respondent to get a prescription from Wernicke for the Alfenta so that the hospital record keeping would be proper. Respondent went to Wernicke and asked him for a prescription for the Alfenta that had been used, and Wernicke refused. Respondent then personally went to McDaniel and told him that Wernicke would not write the prescription and told McDaniel why, i.e., that Wernicke was still mad that Respondent had not considered him good enough to do Respondent's surgery. McDaniel asked Respondent who could write the prescription because Respondent needed a prescription from somebody and Respondent could not write the prescription for himself. Respondent told McDaniel that he had asked Dr. Brennan to be there to give him the pain medication, that Dr. Brennan had never showed up, but that Brennan was in the hospital at the time the medication was administered. McDaniel suggested that Respondent see if Brennan would sign a prescription. Respondent went to Brennan's office and told Brennan exactly what had happened. He told Brennan he had given himself 1 1/2 ccs of Alfenta and that Wernicke was the attending physician. He told Brennan that Respondent had self- administered and why, that Wernicke had refused to write the prescription and why, and that Haynes McDaniel had suggested that Brennan could sign the prescription for the hospital's records. Dr. Brennan became upset that he had not been there to help when his colleague needed him, agreed to sign the prescription, and offered Respondent pain pills or anything else Respondent needed for what remained a painful knee and leg. Respondent declined the offer of any additional medication. In good faith and in the course of his professional practice, Dr. Brennan signed a prescription for 1 1/2 ccs of Alfenta for Respondent. Respondent then hand- delivered that prescription to the pharmacist. After receiving the prescription from Respondent, the pharmacist wrote an Unusual Occurrence Report dated December 16, 1992. In January of 1993 the hospital summarily suspended Respondent's privileges, and he has been unable to practice medicine since that time. Respondent's emergency room visit happened on a Monday evening. On the following Thursday, Respondent and Wernicke's partner Dr. Jim Cain were in the doctor's lounge together. Respondent told Cain that his leg really hurt him and was swollen, and Cain offered to look at it. Respondent pulled up his scrub suit and showed Cain his calf which was twice its normal size and "hot". Cain suggested that Respondent get an ultrasound and get some blood thinner since it looked as though Respondent had developed phlebitis, a dangerous condition. Respondent immediately went to the x-ray department and had an ultrasound performed. The ultrasound revealed that Respondent had compartment syndrome in his calf, four days after the aspiration was performed. Dr. Wernicke's office notes regarding Respondent's emergency room visit, supposedly dictated that same evening or the following day, discussed the ultrasound that Respondent had. Accordingly, Dr. Wernicke did not dictate his notes regarding his treatment of Respondent on Monday evening or on Tuesday. Those notes, however, do bear Tuesday's date and are included in the hospital's medical record for Respondent's emergency room visit. The medical chart created by the hospital was likely created on December 21, 1992, the date stated on the Unusual Occurrence Report as the date the chart was initiated. The chart which thereafter purports to be Respondent's emergency room record is actually a composite of different patients' charts. To the extent it purports to be Respondent's chart, the entries contained therein are false. The Alfenta used by Respondent was an appropriate drug for the purpose for which it was used. It is a rapid but short-acting narcotic analgesic when given in the amount in which it was given. Further, the amount of Alfenta administered was an appropriate dose. Respondent used the Alfenta because it was an appropriate drug for immediate relief so he could endure the palpation and aspiration of his knee and so he could stop his leg from trembling allowing Wernicke to aspirate it. He knew the Alfenta would be worn off even before the analgesic effect of the anti- inflammatory medication was felt. It is noteworthy that all physicians who testified in this proceeding rated the pain Respondent was in as between eight and ten on a pain scale where ten is the worst. Respondent did not use Alfenta as a result of any addiction, and his use of the drug under the circumstances in this case was not related to any abuse of narcotics. Respondent has not exhibited any of the behavior of a drug user. Respondent did not engage in any attempt to "cover up" his administration of Alfenta to himself. He called the hospital and requested his anaesthesia cart be brought and that an anaesthesiologist come to the emergency room to administer the medication. The administration occurred with the implicit consent of Wernicke and it took place in front of Wernicke, in front of three or four emergency room nurses, and in front of the emergency room doctor. At the time, he filled out the narcotics record on his anaesthesia cart and telephoned the hospital's pharmacist the following day to tell him what had occurred and request that he be billed for the medication he used. His giving the hospital a prescription from Dr. Brennan was caused by Wernicke's refusal to document the treatment he rendered to Respondent, by Respondent's inability to write his own prescription, and was in response to the hospital's specific request that a prescription be written for the purpose of the hospital's record keeping. Further, Dr. Wernicke knew what had happened, as did the other emergency room personnel present that evening, and Respondent fully disclosed the events that had occurred to both Dr. Brennan and to the hospital pharmacist. Respondent's use of Alfenta on December 14, 1992, was not in any way related to patient care and had no impact on any patient care rendered by Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause. DONE and ENTERED this 28th day of March, 1995, at Tallahassee, Florida. LINDA M. RIGOT 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 28th day of March, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 2-6 and 9-12 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Petitioner's proposed findings of fact numbered 7, 8, 13, 14, and 16 have been rejected as not being supported by the weight of the competent evidence in this cause. Petitioner's proposed finding of fact numbered 15 has been rejected as being subordinate to the issues herein. Respondent's proposed findings of fact numbered 1, 3-19, 21-31, 33-35, 38-40, 42, 43, and 45 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2, 20, 32, 36, 37, and 44 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed finding of fact numbered 41 has been rejected as being subordinate to the issues herein. COPIES FURNISHED: Arthur B. Skafidas, Esquire Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Joseph L. Mannikko, Esquire 215 South Federal Highway, Suite 100 Stuart, Florida 34994 Dr. Marm Harris, Executive Director Agency for Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792 Tom Wallace, Assistant Director Agency for Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Petitioner is the Department of Professional Regulation, Board of Nursing. The Petitioner regulates the practice of nursing pursuant to section 20.30, and Chapters 455 and 464, Florida Statutes. The Respondent, McDonald Knights, is a registered nurse and holder, at all times pertinent to these proceedings, of license number 1715572. He received his formal training in England and became licensed in the State of Florida by endorsement on or about May 5, 1986. At all times material to these proceedings, the Respondent was employed as a registered nurse assigned to work in the surgical cardiac care unit at Cedars of Lebanon Medical Center in Miami, Florida. Francesco Garofalo was a patient in the coronary care unit of the medical center on March 8, 1987, awaiting cardiac aortic bypass surgery the next morning as a result of acute myocardia infarction. He was being intravenously infused with two medications, lidocaine (for arrhythmia) and nitroglycerin (for pain). The medications were applied through continuous intravenous infusion at separate injection sites and through separate volumetric pumps. At approximately 7:45 p.m., the alarm sounded on the volumetric pump responsible for discharging the nitroglycerin intravenous infusion. The Respondent answered the alarm and noted the container of nitroglycerin was empty. Since the previous shift had not provided a back up container of the medication, it was necessary for Respondent to order a replacement be delivered from the unit's pharmaceutical supply. While awaiting delivery of the medication, the Respondent started a dextrose solution running into the patient to prevent the injection site from closing. At this time, the patient complained of pain at the site of his other intravenous injection for lidocaine. The Respondent determined that this injection site had been infiltrated with the lidocaine solution leaking into the subcutaneous tissue of the patient's arm, resulting in discomfort to the patient. The Respondent decided a new site should be secured. In the process of securing a new site for the lidocaine infusion, the Respondent removed a manual plunger apparatus termed a "cassette" from the volumetric pump. This action effectively discontinued the function of the pump. After inserting the needle in the new venous site, Respondent manually operated the plunger apparatus to insure that the line was open and effectively discharging a smooth flow of lidocaine medication into the patient's body. He did not establish a rate of flow for the medication into the patient's body beyond cutting down the manual flow to an amount equal, in his opinion, to 10 to 20 drops per minute. At this point, the Respondent went to take a telephone call and left the patient's care to another nurse who had entered the room. The time was approximately 7:47 p.m. Cordette Steer is a registered nurse with twenty years experience. When she entered the patient's room to allow the Respondent to take the telephone call, she received no instruction from the Respondent. She did not know the medication being injected was lidocaine. Due to the toxic nature of lidocaine and her observation that the volumetric pump for administering this medication had been effectively bypassed, Steer assumed the Respondent had hung a harmless saline or dextrose solution to keep the vein open for the injection. She proceeded to apply tape to secure the needle at the injection site because, as she testified, "nobody would expect lidocaine to be infusing off of the pump, this is something that is never done." At 7:50 p.m., the patient complained of chest pain. Steer was aware of the exhaustion of the patient's nitroglycerin and that a new bag had not yet arrived from the pharmacy. She stepped from the room and returned almost immediately with nitroglycerin tablets which she gave to the patient to relieve his chest pain. He shortly began to exhibit seizure symptoms commonly associated with lidocaine toxicity. Code Blue was sounded. The Respondent was among those personnel responding. He disconnected the lidocaine infusion, stopping the flow of lidocaine to the patient. The time was 7:55 p.m. Resuscitation attempts failed and the patient subsequently expired at approximately 8:30 p.m. Nancy Cox is a critical care educator employed with the Miami Children's Hospital. She is an expert in the fields of surgical and cardiac critical care. She reviewed the medical records pertinent to this proceeding and her expert testimony establishes that: Lidocaine is an extremely toxic medication which can be fatal if the volume administered to a patient is not closely controlled. The dosage the patient should have been receiving was 15 cubic centimeters per hour or approximately three teaspoons per hour. The volumetric pump sets the rate of delivery of an intravenous drug with a finite, or high, decree of accuracy. When the pump is turned off, with the cassette in place, the flow of medication is stopped. When the cassette is removed from the pump device, an open flow is established and the pump fails to act as a regulator. Finite control of drug administration is not possible manually, as was attempted by the Respondent in this case, without taking considerable time to adjust the rate of flow in concert with timed intervals. Even when this is done, the plunger may spring open and allow a greater than desired drug flow. The Respondent should not have established a smooth flow of lidocaine, but rather a dripping or slow rate of infusion. The Respondent deviated from accepted minimal standards of cardiac or critical care nursing when he used the lidocaine solution to initially infuse at an open, unregulated rate in order to determine if the new injection site was functioning as opposed to establishing a patent intravenous route by either injecting saline via a syringe into the catheter, or connecting a bag of a saline or dextrose solution to the catheter for this purpose and then allowing it to infuse, prior to re-connecting the lidocaine. The Respondent also deviated from accepted minimal standards of acceptable and prevailing nursing practice by not informing Cordette Steer that lidocaine was being administered intravenously to the patient without the use of the volumetric pump.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Nursing enter a final order finding the Respondent guilty of the offense charged in the administrative complaint, suspending his license for a minimum period of one year with probationary reinstatement thereafter conditioned upon 1) a showing by the Respondent that he has enrolled and completed continuing education courses, as deemed appropriate by the Board, in the area of cardiac critical care with an emphasis on intravenous medication applications, and 2) he agrees to comply with reasonable terms and conditions of the Board for a subsequent probationary period of two years. DONE AND RECOMMENDED this 22nd day of April, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 22nd day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5633 The following constitutes my specific rulings, in accordance with requirements of section 120.59 Florida Statutes, on proposed findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS Included in finding number 2. Included in finding number 2 Rejected as unnecessary. Including in finding number 2. Included in finding number 3. Included in finding number 4. Rejected as unnecessary. Included in finding number 4. Included in finding number 7. Rejected as unnecessary. Rejected as unnecessary. Included in finding number 4. Included in finding number 4. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Included in finding number 6. Included in finding number 6. Included in finding number 5. Included in finding number 6. Included in finding number 6. Included in finding number 6. Included in finding number 6. Included in finding number 6. Patient was pronounced officially dead at 8:52 p.m., but Respondent testified that death occurred earlier. Included in finding number 7. Included in finding number 7. Included in finding number 5. Included in finding number 7. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Included in finding number 7. Included in finding number 7. Included in finding number 5. Included in finding number 7. Rejected, not supported by the evidence. Included in finding number 7. Rejected as unnecessary. Included in finding number 7. Included in finding number 6. Rejected as a conclusion of law. COPIES FURNISHED: Lisa M. Bassett, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William E. Hoey, Esquire 2398 South Dixie Highway Miami, Florida 33133-2399 William O'Neill, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Judie Ritter Executive Director Department of Professional Regulation Room 504, East Coastline Drive Jacksonville, Florida 32201
The Issue The issue for determination is whether Respondent committed the offenses set forth in the corrected administrative complaint, and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Kenneth Douglas Glaeser (Respondent) was a licensed physician in the State of Florida, having been issued license number ME 0058606. Respondent's area of specialty is Emergency Medicine. On or about May 30, 1993, at approximately 9:45 p.m., Patient L. H., a 47 year old male, presented to the emergency room (ER) at Parkway Regional Medical Center (PRMC) in Miami, Florida complaining of chest pain. Patient L. H. and his wife were visiting his mother in Miami. At first, Patient L. H. believed he had heartburn, but it would not go away. His mother convinced him to go to the hospital. Patient L. H.'s wife and mother accompanied him to the hospital. His wife parked the vehicle while Patient L. H. and his mother entered the ER. Patient L. H.'s wife completed paperwork for the ER while the ER staff attended to her husband. Patient L. H.'s mother was with him. After completing the paperwork, approximately 10 minutes later, Patient L. H.'s wife joined Patient L. H. and his mother in the examining room. At the time, Respondent was the ER physician on duty at PRMC. Respondent was the only ER physician who attended to Patient L. H. Respondent has no independent recollection of Patient L. H. or what happened during Patient L. H.'s visit to the ER at PRMC. The first goal of an ER physician is to determine if the patient has a life-threatening condition, which, often times than not, involves excluding diagnoses. The second goal of an ER physician is to determine if the patient has a condition which can receive immediate treatment and to provide that immediate treatment whether the condition is life-threatening or not. Respondent obtained Patient L. H.'s history which included the type of pain, description of the pain, location of the pain, associated symptomatology, time frame of the pain (including onset), and past history. Respondent recorded, among other things, that Patient L. H. had chest pressure which radiated bilaterally to his shoulders and a numb left shoulder; that the pain lasted for approximately 10-15 minutes, subsided, and re-occurred 30 minutes later; that Patient L. H. had no shortness of breath, diaphoresis (sweating), nausea or vomiting, or palpitations; and that Patient L. H. had no cardiac history. Respondent's history of Patient L. H. was within that level of care, skill, and treatment which is recognized by a reasonably prudent similar ER physician as being acceptable under similar conditions and circumstances. Respondent performed a physical examination on Patient L. H. The physical examination included taking vital signs and examination of the cardiovascular system, lungs, and pulses of the extremities. Respondent's physical examination was within that level of care, skill, and treatment which is recognized by a reasonably prudent similar ER physician as being acceptable under similar conditions and circumstances. Respondent had laboratory work performed on Patient L. H. Respondent ordered SL (sublingual) nitroglycerine for Patient L. H. But, the nitroglycerine was not administered because Patient L. H. was not complaining of chest pains at the time. The ordering of the nitroglycerine and not administering it until chest pain developed was within that level of care, skill, and treatment which is recognized by a reasonably prudent similar ER physician as being acceptable under similar conditions and circumstances. Respondent ordered diagnostic tests to be performed on Patient L. H. The tests included an electrocardiogram (EKG), a chest x-ray, and cardiac enzymes. Neither Patient L. H.'s wife nor his mother were present during the tests. ER physicians are trained to read EKGs. Generally, a cardiologist is not immediately available to the ER for the reading of EKGs. An ER physician looks for an injury pattern in the EKG, which would evidence an acute cardiac event. Most times, a cardiologist will over-read the EKG a day or two after the EKG is performed on a patient. Respondent's reading of Patient L. H.'s EKG did not show an injury pattern which would evidence an acute cardiac event. Respondent determined that Patient L. H.'s EKG was within normal limits. Even though an abnormality was demonstrated in the EKG, the abnormality could have been a false/positive reading. Respondent's reading of the EKG was within that level of care, skill, and treatment which is recognized by a reasonably prudent similar ER physician as being acceptable under similar conditions and circumstances. A cardiologist over-read Patient L. H.'s EKG after he left PMRC. The cardiologist found a "definite abnormality." Respondent's reading of Patient L. H.'s chest x-ray indicated that it was within normal limits. Respondent's reading of the chest x-ray was within that level of care, skill, and treatment which is recognized by a reasonably prudent similar ER physician as being acceptable under similar conditions and circumstances. Respondent's interpretation of the cardiac enzymes tests (CPK and LDH) indicated that they were within normal limits. If a heart is damaged, often times the enzymes contained in the heart cells will be released, and the cardiac enzymes tests would detect the enzymes. Respondent's interpretation of the cardiac enzymes tests was within that level of care, skill, and treatment which is recognized by a reasonably prudent similar ER physician as being acceptable under similar conditions and circumstances. It is undisputed that based upon Patient L. H.'s history, the physical examination, the tests results, including diagnostic and laboratory results, a recommendation to Patient L. H. by Respondent for admission to PRMC was medically warranted. Admission would allow for monitoring and further evaluation. However, a patient has a right to refuse admission. Respondent discussed his findings with the doctor who was listed as Patient L. H.'s primary physician on the ER record. The primary physician was the private physician, a cardiologist, of Patient L. H.'s mother. The primary physician authorized Respondent to contact the physician on-call. Respondent discussed his findings and his concern with Patient L. H. Respondent recommended to Patient L. H. that he be admitted to PRMC. However, Patient L. H. did not wish to be admitted; he wanted to leave the hospital. Patient L. H. rejected Respondent's recommendation for admission to PRMC. 1/ Patient L. H.'s mother attempted to convince him to agree to admission and remain in the hospital, but he refused. It is undisputed that if a patient refuses admission, the physician should advise the patient of the risks involved and recommend admission. In Patient L. H.'s circumstances, it was medically warranted that Respondent advise Patient L. H. that, if he was not admitted, he could suffer a heart attack and die and recommended admission to Patient L. H. Taking the totality of the circumstances, an inference is drawn and a finding is made that Respondent advised Patient L. H. of the risks involved if he rejected admission and recommended to Patient L. H. that he be admitted. Respondent did not record in the ER record that he advised Patient L. H. of the risks involved in rejecting admission and recommended admission. ER physicians are not medically required to spell-out in the medical record what risks are discussed with a patient and that the patient left against medical advice. It is sufficient that the ER physician explains the risks to the patient. Respondent ordered a GI cocktail (Maalox, Donnatal, and viscous Lidocaine) for Patient L. H. 2/ The GI cocktail was not administered until approximately 12:15 a.m. on May 31, 1993. 3/ The ordering or not of the GI cocktail for or the time in which the GI cocktail was given to Patient L. H. has no effect on the standard of care that Respondent provided to Patient L. H. Respondent diagnosed Patient L. H.'s condition as atypical chest pain. This diagnosis essentially indicates that a number of different things may have been causing Patient L. H. to experience chest pain. Patient L. H. left PRMC on May 31, 1993, at approximately 12:20 a.m. against medial advice even though the ER record indicates that he was discharged. 4/ Before leaving PRMC, Patient L. H. was informed by Respondent to, among other things, follow-up with the primary physician and return to the ER if needed. Neither Patient L. H. nor his wife completed any discharge papers or received discharge instructions. It is not uncommon for a patient to be discharged from a hospital without completing discharge papers or receiving discharge instructions. However, hospitals attempt to prevent such occurrences. When a patient leaves PRMC against medical advice, the patient is requested to complete certain documentation. That documentation was not completed in the case of Patient L. H. However, the absence of the documentation is not considered to evidence that Respondent failed to advise Patient L. H. of the risks involved in rejecting admission and to recommend admission. On May 31, 1993, at approximately 8:45 a.m., Patient L. H. went into cardiac arrest at his mother's home. He was transported to the ER at PRMC by emergency vehicle, where he was pronounced dead. On June 1, 1993, Respondent entered an addendum to the ER notes of May 30 and 31, 1993. The addendum provided, among other things, that Patient L. H. was opposed to admission to PRMC and that, even when Respondent explained the risks to Patient L. H., he continued to oppose admission and wanted to leave. Furthermore, the addendum provided, among other things, that Respondent instructed Patient L. H. to return to the ER if the chest pain returns and to follow-up with the primary physician. An addendum to ER notes by an ER physician is not unusual and is an accepted practice. The Dade County Medical Examiner determined that Patient L. H.'s cause of death was occlusive coronary artery disease. Respondent's medical records justified the course of treatment of Patient L. H. Respondent practiced medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar ER physician as being acceptable under similar conditions and circumstances. Respondent is a defendant in a pending civil suit brought by Patient L. H.'s surviving spouse.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine dismiss the corrected administrative complaint. DONE AND ENTERED in this 27th day of January 1997 in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January 1997.
