The Issue The issue is whether Respondent is guilty of failing to practice medicine in accordance with the applicable standard of care by failing to assess adequately a patient's complaints, failing to provide an adequate diagnosis, failing to obtain a specialized consultation, and failing to pursue the appropriate treatment, in violation of Section 458.331(1)(t), Florida Statutes, and failing to keep adequate medical records to justify the use of Cardizem and document the drug's effect, in violation of Section 458.331(1)(m). If guilty of either of these offenses, an additional issue is the penalty that should be imposed.
Findings Of Fact At all material times, Respondent has been a licensed physician, holding license number ME 0048483. He is Board Certified in Emergency Medicine. On May 16, 1994, shortly after 2:00 PM, a 48-year-old male presented at the Naples Community Hospital emergency room with the chief complaints of a rapid heart rate and shortness of breath. He felt warm, but denied feeling nauseous or chest pain. He also reported that he had not had any previous cardiac problems or any head trauma. The patient's heart rate was rhythmic, though rapid at 132 beats per minute. His respiration rate was 24, and his blood pressure was 110/80. The nurse initially examining the patient applied a pulse oximeter and obtained an abnormally low reading of 70 percent on room air. The patient's grey color confirmed that this was not an erroneous reading. The nurse immediately placed the patient on oxygen. After the oxygen was started, Respondent saw the patient, whom he found not to appear sick. The patient's breathing, though rapid, was not labored. He explained that he had come to the hospital only at the insistence of his employer. Evidently, his color had quickly improved with the administration of oxygen. Thinking that this might be a case of tachycardia, which can cause a sensation of shortness of breath, Respondent appropriately ordered a chest x-ray, EKG, and cardiac labs. Respondent received the chest x-rays promptly. They were normal, precluding, among other things, a collapsed lung. The cardiac labs were also normal. Respondent ordered two more EKGs during the patient's hospitalization on May 16. The parties disagree as to the significance of the results of the three EKGs, which revealed some abnormalities. Petitioner failed to prove that the abnormalities revealed in the EKGs were material to a correct diagnosis. Respondent's expert testified that these abnormalities were common among adults and nonspecific. He added that they did not reveal that the patient was suffering from a pulmonary embolism. This detailed, unqualified testimony from an experienced physician is credited over the testimony of Petitioner's expert. Respondent ordered an intravenous access, which was established at 3:00 PM. Although still receiving oxygen, the patient's oxygen saturation was at 97 percent at 2:45 PM and 4:00 PM. Based on his tentative diagnosis of tachycardia, Respondent administered 20mg of Cardizem at 3:35 PM. Cardizem is a calcium channel blocker, which slows down the heart rate. Generally, the patient's condition improved following the administration of the oxygen. According to the nurses' notes, the patient's breathing had slowed down by 2:45 PM, and he reported that he was feeling better by 4:45 PM. Respondent saw the patient four times during his hospitalization and confirmed for himself the nurses' observations before discharging the patient by 6:00 PM. Respondent's discharge diagnosis was paroxysmal supraventricular tachycardia--resolved. He later amended the diagnosis to sinus tachycardia, but testified that he still would have discharged the patient with this diagnosis, under all of the circumstances. The patient returned to the hospital at 10:00 AM the next day, effectively dead on arrival. He had suffered an acute pulmonary saddle embolus. The sole question in this case turns on the adequacy of Respondent's diagnosis and treatment on May 16. Petitioner's expert conceded that there were no independent issues involving the adequacy of the medical records, and Petitioner's proposed recommended order makes no mention of this alleged violation. In hindsight, it is impossible to attribute to mere chance the events of May 16 when the patient died the next morning from an acute pulmonary saddle embolus. Something happened at work, and probably was still happening when the patient first arrived at the hospital, and this was related to what killed the patient the following day. However, Petitioner has not proved that whatever happened to the patient persisted long enough for Respondent to be able to diagnose it based on the data available to him on May 16 or, even if it had, that Respondent's failure to diagnose it was a departure from the applicable standard of care. The first potentially important piece of information collected by the hospital, apart from this history, was the abnormally low pulse oximeter reading. However, Petitioner failed to prove that Respondent was aware of this information, or reasonably should have been aware of this information, at the time that he was treating the patient. The hospital had recently instituted the practice, since discontinued, of separating the nurses' notes, where the low reading was recorded, from the remainder of the medical records for a patient. Ensuing pulse oximeter readings, of which Respondent was aware, were recorded in a different place in the records from the initial pulse oximeter reading. Moreover, it is unclear whether, if Respondent had been aware of the patient's abnormally low pulse oximeter reading, this knowledge would have materially changed what Respondent had to do to meet the applicable standard of care. Ensuing pulse oximeter readings were 96 and 97 percent. Prior to discharge and after discontinuation of the oxygen for a suitably long period of time to eliminate its effects, the patient's pulse oximeter reading remained in the high 90s. Petitioner's expert witness conceded that the pulse oximeter is not a diagnostic tool for a pulmonary embolism. He testified that the EKGs were not a diagnostic tool for a pulmonary embolism, but would give hints of this condition. His main argument was that the initial pulse oximeter reading of 70 percent at room air should have been followed by an arterial blood gas test, which "probably" would have been abnormal. An abnormal arterial blood gas reading should have been followed by a VQ scan, which he asserted should have been abnormal due to little emboli coming off the lungs. However, there is a large element of speculation in the testimony of Petitioner's expert concerning these two tests. It is as likely as not that the arterial blood gas results would have been normal. The VQ scan would almost certainly have been normal, as the autopsy revealed no profusion of emboli, but only an acute pulmonary saddle embolism as the cause of the patient's death. Respondent's expert conceded that a pulmonary arteriogram probably would have been useful, but, in 20 years' practice, he could not recall ordering such a test, which is relatively frequently done in large academic institutions, but not in community hospitals, due to the mortality associated with the procedure and the 2-3 percent of false negatives. Additionally, this record does not so clearly disclose the relationship between the incident on the afternoon of May 16 and the death on the morning of May 17 to permit even an inference that a pulmonary arteriogram would have detected an abnormality in the interim between these two points. Perhaps the most important fact in evaluating whether Respondent met the applicable standard of care is that the patient exhibited none of the predisposing factors for a pulmonary embolism. He had no cardiopulmonary disease. He had no chronic obstructive pulmonary disease. A cable television installer, he was not sedentary and had no stasis of the blood flow, such as from a prolonged immobilization. He was not obese. He had no relevant trauma or injury to the lower extremities. The diagnosis of a pulmonary embolism is very difficult even with predisposing factors; in the absence of such factors, the diagnosis is dauntingly difficult. As Respondent's expert testified, he has never encountered a case of pulmonary embolism without a predisposing factor. Under all of these circumstances, especially the absence of predisposing factors, Respondent's failure to order a pulmonary arteriogram or obtain a consultation was not a departure from the applicable standard of care, nor was his failure to diagnose a pulmonary embolism, if one in fact existed on May 16. Shortness of breath and rapid heart rate are nonspecific complaints. Respondent retained the patient in the hospital for four hours for observation and analysis of test results. Respondent examined the patient four times during this hospitalization. Respondent reasonably and correctly ruled out a variety of more common diseases and illnesses. Under all of the circumstances, the final diagnosis of tachycardia, which related the shortness of breath to tachycardia or possibly anxiety, was not a departure from the applicable standard of care. Petitioner has therefore failed to prove by clear and convincing evidence that Respondent failed to meet the applicable standard of care in any respect in his diagnosis or treatment of the patient on May 16.
Recommendation It is RECOMMENDED that the Board of Medicine enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 4th day of August, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1998. COPIES FURNISHED: Gabriel Mazzeo, Senior Attorney Carol A. Lanfri, Staff Attorney Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 William Partridge Grossman, Roth and Partridge SouthTrust Bank Plaza 1800 Second Street, Suite 777 Sarasota, Florida 34236 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle Southeast Tallahassee, Florida 32399-1703 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle Southeast Tallahassee, Florida 32399-1703 Dr. Marm Harris, Executive Director Board of Medicine Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent is a lay midwife licensed by the state of Florida. She has practiced as a licensed lay midwife in Florida since 1981. Respondent began her training in Boston, Massachusetts, in 1975 when she began participating in an apprenticeship program under the supervision of two Board-certified obstetricians. That training lasted for three years and included self-study, seminars, and workshops. As part of that apprenticeship program, Respondent delivered one hundred babies under the supervision of those physicians. After moving to Florida, Respondent obtained her license as a lay midwife after attending fifteen births under the supervision of a physician and after taking a written and oral examination. Since being licensed in Florida, Respondent has attended and graduated from the South Florida School of Midwifery. She has subsequently been a preceptor and instructor at that School and is on the Board for the School. At the time of the final hearing in this cause, Respondent was only two months away from receiving her nursing degree. Respondent is a member of the Midwives Association of Florida. During the course of her licensure in Florida, Respondent has attended all types of continuing education programs, particularly in the field of maternal and child health. While licensed in the state of Florida, she has attended between five hundred and seven hundred births, sometimes as the primary caregiver, sometimes assisting other midwives, and sometimes assisting physicians during hospital births. At all times material hereto, Respondent has maintained an ongoing relationship with Dr. Atilla Eagleman, an obstetrician and gynecologist. She frequently consulted with Dr. Eagleman, and he performed risk assessments on Respondent's patients. In other words, Dr. Eagleman was Respondent's "back-up" physician. Dr. Eagleman became Board-certified in December, 1990. When patient Sandy Freireich first consulted with Respondent on May 11, 1989, Freireich was seventeen to eighteen weeks pregnant with her fourth child. Respondent told Freireich that in order for her to be accepted as one of Respondent's patients, she needed to provide Respondent with proof that she had obtained an initial risk assessment by a physician. Freireich told Respondent that she had obtained that examination from her regular doctor who was an obstetrician and that she would bring Respondent a copy of her medical records documenting that examination on her next visit. Since Respondent performs an initial risk assessment on her patients, she did so with Freireich and determined that she was a low-risk patient. On at least seven occasions, Respondent told Freireich that Freireich had to provide Respondent with a copy of the initial risk assessment records from Freireich's physician. On each occasion Freireich promised to provide such a record. Respondent also strongly encouraged Freireich to see Dr. Eagleman and have him perform an initial risk assessment. Freireich agreed to do so. Respondent also requested permission from Freireich to allow Respondent to obtain Freireich's records directly from Freireich's doctor by having Freireich sign a medical records release form. Freireich insisted that she wanted to speak to her physician to make sure her doctor understood rather than simply sending him a form to release her records. Along the way Freireich missed several appointments with Respondent. For those appointments which she kept, she failed to bring with her the promised documents. On September 6, 1989, when Freireich was 32.4 weeks pregnant, she signed a medical release form authorizing Respondent to obtain her medical records directly from her doctor. On that visit, Respondent recommended to Freireich that she obtain her third trimester risk assessment from Dr. Eagleman. On September 14, 1989, Respondent received records directly from Freireich's obstetrician. Those records did not contain an initial risk assessment for Freireich's current pregnancy. On September 20, 1989, when Freireich was 34.4 weeks pregnant, Respondent caused Freireich to receive a risk assessment and a physical and prenatal examination by a certified nurse midwife in Respondent's office. That risk assessment also revealed that Freireich was a low-risk patient. It is unknown whether Freireich ever obtained an initial risk assessment during her first twenty-eight weeks of pregnancy. It is uncontroverted, however, that Respondent never received proof of such an initial risk assessment by a physician or by a certified nurse midwife. Furthermore, it is clear that Respondent consistently encouraged Freireich to obtain an initial risk assessment by a physician, and that it was Freireich who failed or refused to provide proof that such had been performed. In 1987 the Department proposed a number of changes to the rules regulating the practice of midwifery. The Florida Midwives Association challenged the proposed rules, and the Association and the Department engaged in a long-term dialog thereafter. New rules did not become effective until 1991. Although there were existing rules in place during that interim period, it became a common practice for midwives to contact Anne Richter, a consultant for the Department's midwife program. Based upon the information provided to her by a midwife, Richter would tell the midwife to care for a particular patient pursuant to the existing rules or pursuant to the proposed rules. It was common knowledge among the midwives in the state of Florida that the Department was informally allowing midwives to practice under the proposed rules rather than the existing rules and that one could call Anne Richter to obtain a "waiver" of rule requirements. On one occasion, Respondent had telephoned Richter regarding a patient who had come to Respondent when she was thirty weeks pregnant and had not obtained an initial risk assessment during her first twenty-eight weeks of pregnancy. Richter told Respondent that it was permissible for Respondent to accept that patient whose only risk factor was starting care after twenty-eight weeks. Respondent did not accept that patient. Although Respondent had intended to telephone Richter to seek permission to continue providing care to Freireich, Respondent neglected to do so. On October 30, 1989, Freireich left a message cancelling her appointment for that day. Later that afternoon she contacted Respondent to advise Respondent that she was in labor. She declined to allow Respondent to come to Freireich's home until after 8:30 p.m. because she wanted her other children to be asleep before Respondent got there. Respondent arrived at the Freireich home at 8:50 p.m. She assessed Freireich's labor, performed a physical examination, and began attending to Freireich's needs during labor. At 11:30 p.m., the fetal heart rate was 150. The patient took a shower. When she finished her shower at 11:50 p.m., Respondent checked the fetal heart rate and found that it had decreased to 90. Respondent appropriately instructed the patient to lay on her left side and gave her oxygen at six liters since the deceleration in the heart rate may have been indicative of a problem that needed to be rectified. At 11:53 p.m., Respondent appropriately checked the fetal heart rate and again found that it was 90. Respondent then assessed the patient and found the patient to be fully dilated with the baby at between 0 and +1 stations. Since the patient was fully dilated, Respondent instructed her to push. Respondent again checked the fetal heart rate and found that it had decelerated to 60. That the patient had a history of having rapid deliveries and was a multipara (had previously had one or more viable births) was significant in that it was very likely that with good expulsive efforts the baby would be delivered in a short time. Respondent was concerned when she got the decelerated fetal heart rate but believed birth to be imminent. An experienced birth practitioner can judge whether delivery will be expeditious. At 11:58 p.m. the baby was at the +2 station (half the way down the birth canal, i.e., half way out). The fetal heart rate was 60 when Respondent again checked. Respondent's extensive training and experience had made her aware that it was not unusual to encounter a decelerated fetal heart rate directly prior to birth. A deceleration of the fetal heart rate at the final stage of labor can result from "head molding," and the rotation of the baby. In other words, it is very common to have a fetal heart rate drop due to head compression and the transverse lie of the head during the final stages of delivery. In 98% of those cases, the decelerated fetal heart rate will return to base line. In Respondent's previous experience, babies who had similar deceleration in their heart rate came out vigorous and robust, or may have needed a little tactile stimulation or warmth to be resuscitated, but always came out normal. Her training dictated that the proper procedure was to assess whether delivery was imminent. Respondent knew that a heart rate of 60 sustained for a few moments with no progress would be considered an emergency situation necessitating physician consultation or contacting emergency medical services for transportation to a hospital. On the other hand, a fetal heart rate of 60 sustained for a few moments with progress was not unusual, and the best course of action was to facilitate delivery of the baby. Since her patient was having strong contractions, was making good expulsive efforts, and the baby was descending rapidly down the birth canal, Respondent knew that birth was imminent. Exactly twelve minutes after the patient came out of the shower, the baby was delivered. The baby was stillborn. Respondent had no indication prior to the delivery of the baby that the baby would be severely compromised or dead. Respondent is fully trained in resuscitation of babies. She is certified in medical CPR, has taken many continuing education courses in emergency procedures, and is certified in and carries with her the equipment necessary for neonatal resuscitation: neosuctioning, an Ambu Bag, and oxygen. When the baby was delivered at 12:02 a.m., Respondent caused one of the adults present to contact fire rescue. Respondent immediately began resuscitation efforts and continuously attempted to resuscitate the baby until the fire rescue unit arrived, which was fifteen minutes after fire rescue was called the first time. Between the first decelerated fetal heart rate and delivery of the baby twelve minutes later, Respondent did not refer the patient to a physician or consult with Dr. Eagleman because to do so would have taken time away from managing a potentially dangerous situation and because she knew that Dr. Eagleman would merely tell her to get the baby delivered. Further, Respondent did not consider the drop in the heart tones to be abnormal requiring her to refer the patient to a physician since there was rapid progress and birth was imminent. Dr. Eagleman verified during the final hearing in this cause that had Respondent contacted him during the twelve minutes in question to report the decelerated heart rate, he would have told her to get off the telephone, go back to her patient, and "get the baby out." Respondent had never previously delivered a stillborn. There is no suggestion made in this record either that Respondent should have known that the baby would be stillborn or that Respondent contributed in any way to cause that unfortunate outcome. Respondent contacted Anne Richter to advise her what had happened and subsequently sent written reports to Richter detailing her care of patient Freireich. Petitioner has never before taken disciplinary action against Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered Finding Respondent guilty of violating Rule 10D-36.042(1), Florida Administrative Code (1989); Finding Respondent not guilty of violating Rule 10D-36.46(4)(e), Florida Administrative Code (1989); Finding that no disciplinary action should be imposed because the violation was neither willful nor repeated; and Dismissing the Notice of Formal Reprimand filed in this cause. DONE and ENTERED this 31 day of March, 1992, 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 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this day of March, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 91-1953 Petitioner's proposed findings of fact numbered 1, 2, 7, 8, 15 and 16 are adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 3-6, and 9-14 are rejected as not being supported by the weight of the competent evidence in this cause. Respondent's proposed findings of fact numbered 1-9, 12, 13, 15, 19-33, and 35-39 are adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 10 is rejected as not being supported by the weight of the competent evidence in this cause. Respondent's proposed finding of fact numbered 18 is rejected as being subordinate to the issues herein. Respondent's proposed findings of fact numbered 11, 14, 16, 17, 34, and 40 are rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. COPIES FURNISHED: Karen Miller, Esquire District IX Legal Counsel Department of Health and Rehabilitative Services 111 Georgia Avenue West Palm Beach, Florida 33401 Thomas G. Sherman, Esquire 218 Almeria Avenue Coral Gables, Florida 33134 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues for determination in this proceeding are whether Respondent failed to practice medicine with that level of care, skill, and treatment of two patients which is recognized by a reasonably prudent similar physician as being acceptable under similar circumstances and whether Respondent failed to keep written medical records justifying the course of treatment of the two patients.
Findings Of Fact Petitioner is the state agency statutorily charged with the duty and responsibility for enforcing applicable statutes and administrative rules against physicians licensed by the State of Florida. Respondent is, and has been at all times material hereto, a physician licensed by the state, having been issued license number ME 0032342. Patient A.R. Patient A.R. is an elderly female who was approximately 80 years old when Respondent first examined her on January 8, 1987. Patient's chief complaint was a 10 year history of hypertension. Respondent diagnosed patient A.R. as suffering from hypertension and possible angina pectoris. The patient was using a pacemaker at the time she first saw Respondent. Respondent performed an EKG on patient A.R. on January 8, 1987, and determined that the patient's pacemaker was malfunctioning. Respondent performed an EKG on patient A.R. on June 14, 1987. Respondent misinterpreted the EKG as indicating that patient A.R. had a sinus rhythm, frequent ventricular premature complexes, marked rhythm irregularity, and a heart rate of 65 beats per minute. Respondent noted his diagnosis in patient A.R.'s chart. The EKG actually indicated that patient A.R. was suffering from a second degree heart block and that her heart rate was below 50 beats per minute. A second degree heart block is a condition in which the area in the heart which initiates the heart beat functions abnormally. In effect, the electricity is blocked from going into the heart and starting the heart beat. The patient's pulse rate is lower than it should be. Patient A.R. was suffering from a second degree heart block on June 14, 1987, and was not properly diagnosed by Respondent. 1/ Patient A.R. went to a hospital emergency room on June 19, 1987, with a very low pulse rate. She was admitted to the hospital and had a permanent pacemaker implanted. The standard treatment for a heart block is a pacemaker. There may be insufficient blood supplied to the brain of a patient who suffers from a heart block. If left untreated, a patient may experience fainting, cardiac arrhythmia, and death. Respondent failed to practice medicine with that level of care, skill and treatment of patient A.R. which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. After examining patient A.R. on June 14, 1987, and on June 16, 1987, Respondent failed to correctly interpret the EKG results on June 14, 1987, and failed to properly diagnose patient A.R. The written medical records that Respondent maintained on patient A.R. failed to justify the course of treatment for patient A.R. The records contained an incorrect reading of the EKG given on June 14, 1987, and failed to justify the course of treatment followed for patient A.R. Patient C. H. Patient C. H. is an elderly female who was 65 years old when she was first seen by Respondent on October 23, 1985. Respondent noted that patient C.H. had occasional rectal bleeding and chronic anemia. Respondent noted in the medical records that patient C.H. should have a rectum and colon study performed. However, no tests were ever conducted to determine the source of bleeding or to test the patient's stool for blood. On April 7, 1987, patient C.H. was examined by Respondent complaining of anal bleeding for 2 or 3 days. Her hemoglobin count was markedly low. On May 7, 1987, patient C.H. was examined by Respondent and stated that her anal bleeding decreased four days after her office visit on April 7th. On August 3, 1987, patient C.H. was hospitalized and found to be anemic. Respondent failed to practice medicine with that level of care, skill and treatment of patient C.H. which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Respondent failed to perform any diagnostic tests or studies on patient C.H. between October 23, 1985, and August 3, 1987, to determine the source of her anal bleeding or to test her stool for blood. Respondent also failed to refer patient C.H. to a specialist for a gastrointestinal work-up. The written medical records that Respondent maintained on patient C.H. failed to justify the course of treatment for patient C.H. The records failed to include a justification for the course of treatment, the failure to conduct tests, or the failure to refer the patient to a specialist.
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 guilty of violating Sections 458.331(1)(m) and (t), Florida Statutes, imposing an administrative fine of $3,000 against Respondent, and placing Respondent on probation for two years subject to such reasonable terms and conditions as the Board may impose. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of September, 1991. DANIEL MANRY 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 10th day of September, 1991.
The Issue Whether Jennifer Peterson, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). Whether the hospital's failure to give notice, as contemplated by Section 766.316, Florida Statutes, was excused because the patient had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes, or the giving of notice was not practicable.
Findings Of Fact Preliminary findings Jon Petersen and Kimberly Petersen are the natural parents of Jennifer Petersen, a minor. Jennifer was born a live infant on December 20, 2001, at Tallahassee Memorial Hospital, a hospital located in Tallahassee, Florida. The physician providing obstetrical services at Jennifer's birth was Jana M. Bures Forsthoefel, M.D., who at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an injury to the brain . . . of a live infant weighing at least 2,500 grams for a single gestation or, in the case of a multiple gestation, a live infant weighing at least 2,000 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired . . . . In this case, it is undisputed that Jennifer suffered an injury to the brain caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital, which rendered her permanently and substantially mentally and physically impaired. What is disputed is whether Jennifer weighed at least 2,500 grams at birth. As to that issue, Petitioners were of the view that "[b]ased on the evidence presented . . . it cannot be established what Jennifer Petersen's 'actual' birth weight was at the time of her birth" or, alternatively, that it was most likely less than the 2,500 grams recorded on admission to the newborn intensive care unit (NICU), after she had been intubated. (Petitioners' proposed order, page 4.) In contrast, the other parties were of the view that the weight recorded in the NICU, which they chose to characterize as the "official birth weight," should be accepted as Jennifer's birth weight, without consideration of any weight attributable to the endotracheal tube that was inserted after delivery. (See Respondent's and Intervenors' post-hearing submittals.) Notably, when it has been shown "that the infant has sustained a brain . . . injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption . . . [arises] that the injury is a birth-related neurological injury, as defined [by the Plan]." § 766.309(1)(a), Fla. Stat. Under the circumstances of this case, the presumption is that Jennifer's birth weight was 2,500 grams or greater. Consequently, to be resolved is whether there was credible evidence produced to support a contrary conclusion and, if so, whether absent the aid of the presumption the record demonstrates, more likely than not, that Jennifer's birth weight met or exceeded 2,500 grams.1 The proof regarding Jennifer's birth weight Pertinent to Jennifer's birth weight, the proof demonstrates that when delivered at 12:42 a.m., December 20, 2001, at 33 4/7 weeks gestation, Jennifer was severely depressed, and was immediately intubated and given cardiopulmonary resuscitation. At 3 minutes of life, a heart rate greater than 100 beats per minute was achieved, and at 5 minutes of life the endotracheal tube was secured and she was transferred to the NICU, where she was admitted at 12:50 a.m. Following admission to the NICU, Jennifer was weighed for the first, and insofar as the record reveals, the only time.2 That process was credibly described at hearing by Stacie Forbes, R.N., one of two nurses on duty in the newborn intensive care unit at the time, as follows: Q. Okay. Ma'am, what I'm going to . . . show you is . . . [a document that's] identified as Bates stamp 0309 [the Newborn ICU Admission Assessment form3] and get you to tell the Judge, if you can, what that document is. A. Okay. This document is our standard admission document for the newborn intensive care unit. When a baby comes into our unit, this is our initial assessment, the very first thing we do. * * * Q. All right. Now, . . . did you write the entries on that form? A. Yes. Q. And that's your signature down below? A. Yes. Q. Were you present when this baby Jennifer Peterson was weighed? A. Yes. * * * Q. How much did that baby weigh? A. 2500 grams, or 2.5 kilograms. Q. What did you . . . write down how much it weighed? A. I wrote 2.500. Q. All right. Now, I would like for you, if you would, to just briefly describe to us how you go about weighing a baby to get that weight. A. Okay. The baby comes in. As soon as the baby is stable, the first thing we do is we put the baby on the radiant warmer, we zero the warmer out, and then we lay the baby on the warmer and the grams comes up on the scale, on the bed scale. Q. All right. So when you put the baby on the bed scale, the weight in grams appears on a digital display? A. Yes. Q. So it's digital, 2500? A. Yes. Q. You don't have to do any kind of conversion at all? A. No. Q. Okay. Is it always the grams weight that comes up first in every case? A. Yes. Q. All right. Now, if you look on that form that you are looking at, it's got a weight in pounds [5 pounds 8.1 ounces] next to it? A. Yes. Q. Would you explain to the Court how you go about getting weight in pounds? A. As soon as the grams comes up, there is a button on the scale that you push that converts it to pounds. Q. Okay. And so, do you, as the nurse, have to do any sort of mathematical calculation or computation? A. No. Q. Who does that -- or how is that done? A. It's done by the radiant warmer. Q. Which is where the scale is? A. Yes, the scale. * * * Q. . . . Now, the 2500 grams that you recorded on the newborn admission form? A. Yes. Q. Is that the official birth weight of the baby? A. Yes. Q. . . . [H]ow is that used later on, in terms of the care of the baby? A. We do all of our medications, all of our IV fluids, blood transfusions, anything, any medical care, we use grams or kilograms, so, for the baby. We don't use the pounds. Q. All right. So, in other words, then you take that weight and when you have to figure out how much medicine you are going to give them, it's based many times on the weight of the baby? A. Yes. Q. And the weight that you use for that is 2500 grams? A. Yes, that's correct. * * * Q. Was [the baby] intubated when . . . [she] was admitted to the newborn ICU? A. Yes. * * * Q. Okay. Was the baby intubated when it was weighed? A. Yes. Q. Do you know what the weight of a standard 3.5 intubation tube is? A. No. Q. Did you deduct anything for the intubation tube? A. No. (Transcript, pages 15-19, 22 and 23.) There is no reason to question Nurse Forbes' testimony that Jennifer's initial weight, as displayed by the bed scale, was 2,500 grams. However, since the scale calculated an equivalent in pounds and ounces as 5 pounds 8.1 ounces, when the correct figure would have been (5 pounds 8.185 ounces), closer to 5 pounds 8.2 ounces, and since only a weight of approximately 2,497.60 grams would produce an equivalent weight of 5 pounds 8.1 ounces, there is cause to question the reliability of the bed scale. Consequently, since no reasonable explanation for the discrepancy was offered at hearing, and since a plausible explanation is malfunction or improper calibration, the weight of 2,500 grams noted for Jennifer on her initial examination cannot be accepted as reliable. Similarly, since the weight of 2,500 grams is not reliable, a reduction of that weight by the weight of the endotracheal tube, if shown,4 would likewise not produce an accurate reflection of Jennifer's birth weight.5 Consequently, there being no other evidence of her birth weight, there was no credible evidence produced to rebut the presumption that Jennifer weighed at least 2,500 grams at birth. The notice provisions of the Plan With regard to notice, Petitioners have stipulated that "Dr. Forsthoefel provided notice to the Petitioners pursuant to Section 766.316, Florida Statutes," but contend the hospital, although it had a reasonable opportunity to do so, did not. (Amended Pre-Hearing Stipulation.) In contrast, while acknowledging that notice was never given, the hospital and NICA contend the giving of notice was not required because, when Mrs. Petersen presented to the hospital on December 18, 2001, she had an "emergency medical condition as defined in s. 395.002(9)(b)," Florida Statutes. Petitioners dispute such contention. Therefore, it must be resolved whether the giving of notice was not required.6 At all times material hereto, Section 766.316, Florida Statutes (2001), prescribed the notice requirements of the Plan, as follows: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(9)(b) or when notice is not practicable. Section 395.002(9)(b), Florida Statutes, defines "emergency medical condition" to mean: (b) With respect to a pregnant woman: That there is inadequate time to effect safe transfer to another hospital prior to delivery; That a transfer may pose a threat to the health and safety of the patient or fetus; or That there is evidence of the onset and persistence of uterine contractions or rupture of the membranes. The Plan does not define "practicable." However, "practicable" is a commonly understood word that, as defined by Webster's dictionary, means "capable of being done, effected, or performed; feasible." Webster's New Twentieth Century Dictionary, Second Edition (1979). See Seagrave v. State, 802 So. 2d 281, 286 (Fla. 2001)("When necessary, the plain and ordinary meaning of words [in a statute] can be ascertained by reference to a dictionary.") Here, the hospital does not suggest that, and the record would not support a conclusion that, the giving of notice was not practicable. Consequently, the sole issue is whether Mrs. Petersen had an "emergency medical condition." Findings related to the hospital and notice At 2:33 a.m., December 18, 2001, Mrs. Petersen, with an estimated delivery date of February 3, 2002, and the fetus at 33 2/7 weeks' gestation, presented to Tallahassee Memorial Hospital, where she was initially assessed in Labor and Delivery Triage. Of note, history revealed Mrs. Petersen had been seen in Triage the previous afternoon, on referral from her obstetrician's office for monitoring because of perceived cervical change. At that time, she complained of feeling menstrual-like cramping, but no cervical change was noted (cervical dilation was recorded at 1.5 centimeters dilation, effacement at 80 percent, and the fetus at -3 station), and nitrazine test was negative. Mrs. Petersen was treated with stat doses of terbutaline (to forestall preterm labor), stabilized, and discharged. During the night, Mrs. Petersen began to feel increasing discomfort, and returned to the hospital (at 2:33 a.m., December 18, 2001) where assessment revealed the cervix at 1.5 centimeters, effacement at 90 percent, and the fetus at station B (Ballott). Mild uterine activity was noted to have begun at 2:00 a.m., but regular or persistent uterine contractions were not noted.7 Nevertheless, given evidence of early (preterm) cervical change and risk for preterm delivery, Mrs. Petersen was admitted for preterm labor pathway and tocolysis (inhibilation of uterine contractions). (Joint Exhibit 2, Tabs 3, 4, 23, and 27.) At 3:30 a.m., Mrs. Petersen was transferred from Triage to Labor and Delivery, where she was received at 3:45 a.m. External fetal monitor [EFM] was applied, which revealed a reassuring fetal heart rate and no uterine contractions. Moreover, no uterine contractions were charted until 7:30 a.m., and those that were subsequently charted were irregular until well after 10:00 a.m., December 19, 2001, when Mrs. Petersen's membranes spontaneously ruptured, and she was committed to deliver. At that time, the decision was made to discontinue tycolysis, and to augment labor with Petocin, in anticipation of vaginal delivery. (Joint Exhibit 2, Tabs 7 and 23, Transcript, pages 50, 51, 61, and 62.) Petocin augmentation started at 1:40 p.m., and Mrs. Petersen's labor slowly progressed. Vaginal examination at 6:45 p.m., revealed the cervix at 2 centimeters dilation, effacement at 90 percent, and the fetus at station O, and vaginal examination at 10:11 p.m., revealed the cervix at 3.5 centimeters dilation, effacement at 95 percent, and the fetus at station O. (Joint Exhibit 2, Tab 23.) At 11:55 p.m., Mrs. Petersen requested an epidural for pain management. Dr. Forsthoefel described the events that subsequently unfolded in her Operative Report, as follows: [Patient] [r]equesting pain management in the form of an epidural. Had received Stadol X 2 with stable fetal heart tones, occasional variable decels with an inadequate pattern of labor with frequent contractions, but not of the intensity required for adequate progress. During the period of the epidural placement, was laid down immediately after the epidural placement and at that point fetal heart tones could not be identified. Immediately I was called and came to the room from Room #1 where there had also been fetal distress. At the time of entry in Room #4 for evaluation, epidural was in place. Blood pressure had dropped immediately after dosing of the epidural and was felt to be secondary to epidural dosing. Fetal heart tones were felt to be in the 70s and 80s, again felt to be secondary to epidural. However, exam was immediately done. Patient was noted to be 4-5 cm, complete vertex at -1 and 0 station. A forebag was once again palpated and ruptured. At this point, bloody fluid was noted from the rupturing of the forebag. IUPC that was present was removed for the possibility of reinsertion for re- evaluation. Scalp electrode was applied and at that time, fetal heart tones were again felt to be between 75 and 80, initially thought perhaps secondary to positioning and low blood pressure. Call to Anesthesia for ephedrine had been made and was in the process of being given. Patient was tilted from right and left rapidly with no response to fetal heart tones. Maternal heart tones were in the 100s and this was felt to be possible fetal. However, a moment later, it was noted the maternal heart rate was at 80 and what appeared to be the fetal heart was at the exact same rate. Concern that there was misjudgment of fetal tracing interpretation that heart rate had been lost on the fetus and that actual maternal heart rate was being picked up was considered and although etiology of the event could not be determined at that immediate moment, call for immediate cesarean section was made. Patient was rushed to the operating room and patient had general anesthesia and patient was prepped and draped for an abdominal procedure. Incision was made with the knife and extended through the fascia with the deep knife. The fascia was incised with the knife and extended in lateral fashion with both blunt and sharp dissection. Fascia was dissected from the underlying rectus muscles using sharp dissection. Rectus muscles were dissected laterally using blunt dissection. Peritoneum was entered with blunt dissection. Immediately on entry, there was noted to be bloody fluid in the abdominal cavity. Examination of the lower uterine segment, however, quickly revealed no evidence of a defect of the lower uterine segment. Therefore an incision was made rapidly in the lower uterine segment and a transverse incision was made extended with bandage scissors. The infant was delivered [at 12:42 a.m., December 20, 2005] from a vertex presentation. Cord was clamped in two places and cut. Infant was suctioned and was limp. Handed to the Neonatal Team in sterile fashion for resuscitation. * * * FINAL ASSESSMENT: Intrauterine pregnancy at 33+ weeks with spontaneous rupture of membranes. In the face of preterm labor, magnesium sulfate discontinued. Patient positive for beta Strep, now contracting. Plan for delivery was made with Pitocin augmentation, intrauterine pressure catheter was placed. Fetal distress requiring immediate cesarean section with evidence of ruptured uterus at the fundus in a bivalve fashion compatible with previous classical incision. To resolve whether Mrs. Petersen had an "emergency medical condition," the parties presented Joint Exhibit 2, which included the medical records related to Mrs. Petersen's admission of December 18, 2001, addressed supra. The hospital also presented the testimony of Dr. Forsthoefel, Mrs. Petersen's obstetrician, and Petitioners presented the testimony of Dr. Giles, a physician board-certified in obstetrics and gynecology, as well as maternal-fetal medicine. On the issue of "emergency medical condition," it was Dr. Forsthoefel's opinion that on presentation to the hospital, Mrs. Petersen was having persistent uterine contractions, and that those contractions persisted despite efforts to stop them. It was further Dr. Forsthoefel's opinion that Mrs. Petersen was not medically stable when she presented to the hospital, or thereafter, and that a transfer might have compromised patient safety. In contrast, it was Dr. Giles' opinion that on presentation to the hospital, Mrs. Petersen was not having persistent uterine contractions, and that she never evidenced persistent contractions until well after her membranes spontaneously ruptured. It was further Dr. Giles' opinion that Mrs. Petersen was medically stable on presentation to the hospital; that she remained medically stable until she entered the active phase of labor, some time after her membranes ruptured; that the fetus evidenced good fetal heart rate status; and that a transfer would not have posed a threat to the safety of Mrs. Petersen or the fetus. Here, Dr. Giles' testimony, is credited, as most consistent with the proof. Consequently, it is resolved that Mrs. Petersen was not having persistent uterine contractions when she presented to the hospital; that Mrs. Petersen did not evidence persistent uterine contractions until after her membranes ruptured; and that Mrs. Petersen was medically stable at and following admission, and a transfer would not have posed a threat to the safety of Mrs. Petersen or the fetus. Therefore, Mrs. Petersen did not have an "emergency medical condition," as that term is defined by Section 395.002(9)(b), Florida Statutes, and the hospital was required to give notice, during the course of Mrs. Petersen's December 18, 2001, admission.
Findings Of Fact John D. Elder is a site worker at Port St. Lucie High School, having first been employed by the St. Lucie County School Board as a temporary employee in the summer of 1993. When first employed, Mr. Elder rejected the option to enroll in the employer's insurance plan. In September 1993, Mr. Elder was given an employer's insurance form allowing ninety days for enrollment. On November 12, 1993, he completed the form and became eligible for certain benefits on January 1, 1994. The St. Lucie County School Board Medical Benefit Plans, in which Mr. Elder enrolled, excludes coverge for pre-existing conditions until the end of 12 months of continuous coverage. The plans include the following definitions: A pre-existing condition is an injury, sickness or pregnancy or any condition related to that injury, sickness or pregnancy, where a diagnosis, treatment, medical advice or expense was incurred within twelve (12) months prior to the effective date of this coverage. Pre-existing condition will also include any injury, sickness or pregnancy or related condition that manifested itself twelve (12) months prior to the effective date of this coverage. Pre-existing condition will also include the existence of symptoms which would cause an ordinarily prudent person to seek diagnosis, care or treatment within twelve (12) months prior to the effective date of this coverage. (Emphasis Added.) From 1985 to 1988, Mr. Elder was treated by Dr. Urban who, on March 24, 1988, performed an electrocardiogram ("EKG"), which was normal. Dr. Urban treated Mr. Elder for respiratory illnesses, such as bronchitis and pleurisy, for back and shoulder muscle spasms, bursitis/tendonitis, and for high blood pressure. On September 21, 1988, Mr. Elder first saw Dr. Richard Dube. On that day, his heart rate was 62, as compared to the normal range of 60 to 100. In October 1988, Dr. Dube treated Mr. Elder for an inflammation of the muscle behind his shoulder. In December 1988 and January 1989, he treated Mr. Elder for high blood pressure and headaches. In July 1991, Mr. Elder called an ambulance and was taken to the hospital complaining of pain in his neck, across his shoulders, and down his arms. Among other tests, an EKG was performed. The diagnosis was tendonitis in his right shoulder. Later that same year, Mr. Elder complained of heart burn. Dr. Dube treated him for epigastric distress and high blood pressure. Blood test analyses of his cholesterol and high, low and very low density lipid levels indicated a cardiac risk factor of 10.3 for Mr. Elder, which is more than twice the standard male risk factor of 5.0. Dr. Dube ordered blood tests again in January 1993, at which time Mr. Elder's cholesterol and high density lipid levels were still high, but had decreased, reducing the cardiac risk factor to 8.0. Dr. Dube also referred Mr. Elder for an ultrasound of the gallbladder, which was diagnosed on January 29, 1993, as having calcification, which could represent a gallstone, and probably having a small polyp. At the same time he treated Mr. Elder for carpal tunnel syndrome and temporomandibular joint syndrome ("TMJ"). Most recently, on July 27, 1993, the same tests were repeated. With cholesterol in the normal range, the cardiac risk factor was decreased to 6.5. In the fall of 1993, Mr. Elder's complaints were diagnosed as episgastric reflux. To reassure Mr. Elder, Dr. Dube ordered another EKG, which was performed on November 23, 1993, and was normal. On January 3, 1994, Mr. Elder's complaints of ongoing pain caused Dr. Dube, who suspected he had a hiatal hernia, to refer him to Dr. Dan G. Jacobson for an upper endoscopy. Dr. Jacobson recorded a history of episgastric/chest pain, hypertension, ulcers and arthritis. Dr. Jacobson also noted a family history described as "remarkable for heart problems, heart attack." The admitting diagnosis was "history of episgastric pain refractory to medical therapy." Dr. Jacobson performed the endoscopy and diagnosed mild stomach gastritis. Based on a two week history of epigastric and chest pain, and his conclusion that the pain was too severe to result from the endoscopy findings, Dr. Jacobson consulted a cardiologist. Dr. Robert N. Blews, a cardiologist, saw Mr. Elder in the hospital. The history taken by Dr. Blews noted (1) that Mr. Elder's father died of a heart attack at age 68, and that his mother had coronary bypass surgery at age 48 and died at age 59, (2) that the onset of "chest tightness" was approximately one year prior, and (3) that he has a history of cervical spine disease. Dr. Blews' notes also reflected a change in the pattern of the chest pains in the last one to two months, and additional changes in the last two weeks. The longest episodes of pain were lasting from 20 to 30 minutes, with associated sweating and shortness of breath. Mr. Elder also told Dr. Blews that the pain could be with exercise, at rest, could awaken him, and occurred while he was just walking to his car. The report describes Mr. Elder as having a history of smoking. The EKG which Dr. Blews ordered on January 8, 1994 showed a major blockage on the left side of the heart, and is significantly different from all of the prior EKGs, including that taken on November 23, 1993. Dr. Blews concluded that Mr. Elder was having angina, or a decrease in the blood supply to his heart two weeks, two months, and a year before January 1994. Mr. Elder's wife, Florinda Elder, has been aware of his complaints of stomach problems for 10 years, but had no knowledge of his heart problems until January 1994. She was not aware of his having ever smoked or complained of shortness of breath. Although she was at the hospital, Mrs. Elder was not in the room when Dr. Blews took her husband's medical history. Mr. Elder's shoulder and muscle aches, and cervical spine pain are the result of a serious car accident in 1969. The pains are aggravated by cold weather. Mr. Elder claims to have been under the effects of anesthesia at the time Dr. Blews took his medical history, and denies having had a year of chest tightness, shortness of breath, or difficulty walking to his car. He has not smoked for 20-25 years, which is not inconsistent with Dr. Blews' report of a "history of smoking." Mr. Elder's attempt to undermine Dr. Blews history is specifically rejected. The McCreary Corporation is the administrator of the St. Lucie County School Board's self-insurance plan, which contracts with a consultant, Independent Health Watch. Kay Trentor, R.N., reviewed the claims submitted by Mr. Elder, and concluded that his coronary artery disease was a pre-existing condition. In part, Ms. Trentor was relying on Dr. Blews history of a year of "chest tightness." Mr. Elder's records were also sent for peer review, to two other consultant organizations, Professional Peer Review, Inc. and Medical Review Institute of America, Inc. They, in turn, sent the records to Board certified cardiologists, with cardiovascular disease subspecialties. The first report concludes that Mr. Elder "should have known that he had coronary disease because he had multiple risk factors for heart disease," and that "if he was reasonably prudent he would have had this taken care of during the time he was having chest pain walking to the car." The second peer review report also notes a year of chest tightness, with symptoms worsened "over the two months preceding the admission, but . . . not recognized as cardiac until the hospitalization on January 7, 1994." The report concludes that coronary artery disease was not diagnosed until after the effective date. The second report was prepared by Ronald Jenkins, M.D., who believes that Drs. Dube and Jacobson, "seemed to be focusing on gastrointestinal diagnoses . . . and had kind of missed the boat, so to speak . . .," but that "an ordinarily prudent person with John Elder's symptoms which he reported prior to January 1, 1994, [would] have sought medical treatment for those symptoms." Coronary artery disease takes years to develop, but is erratic in manifesting itself, with some people having no symptoms to severe symptoms over a matter of hours. Dr. Dube described it as "silent" coronary disease. Dr. Blews estimates that a heart attack is the first symptom in 40 percent of patients. There is no dispute that Mr. Elder has had other medical conditions, including TMJ, arthritis, and gastroenterological problems. Dr. Jenkins believes the most important manifestation of coronary artery disease was upper precordial chest tightness going to the left upper extremity as well as to the throat. When the history indicates that the tightness occurs with exercise, according to Dr. Jenkins that gives 90 percent confidence that it is anginal chest pain. That confidence level increases to 95 percent when he notes that Mr. Elder told Dr. Blews that chest discomfort occurs when he walks to his car. Without that history, however, Dr. Jenkins would not be able to conclude that the chest discomfort is due to heart disease or that the cardiac condition manifested itself prior to January 1, 1994. Dr. Jenkins described chest heaviness, aggravated by being in cold weather, as a symptom of coronary disease. The same pain without multiple risk factors, occuring irregularly, is a reason for "looking into other alternative diagnoses." Dr. Jenkins also acknowledges that episgastric reflux can cause chest discomfort and throat pain, and that cervical spine degenerative disc disease can cause a radiation of symptoms into the upper extremities, as it did when Mr. Elder called an ambulance in 1991. Dr. Blews did not have trouble getting a complete, detailed history from Mr. Elder. He typically has to elicit a more specific description from patients complaining of chest discomfort. He gives choices such as pain, burn, stab, jab, tight, squeeze or pressure, from which Mr. Elder chose "tight." Dr. Blews also found that Mr. Elder had chest wall pain in several spots or fibrosistitis, which is not a symptom of heart disease. Chest tightness could also be attributable to asthma, according to Dr. Blews, but with radiating pain into the left arm, jaw, and throat, shortness of breath, and sweating, he was certain Mr. Elder had heart disease. All of the doctors agree that Mr. Elder's heart disease existed before January 1, 1994, and that he had no diagnosis, treatment, medical advise or expense related to heart disease in the 12 months prior to January 7, 1994. There is no evidence that he was ever evasive or uncooperative with doctors. On the contrary, Mr. Elder was consistently described in doctor's notes and hospital records as anxious or concerned about his health. Coronary artery disease had not manifested itself to Mr. Elder or his doctors prior to Dr. Jacobson's decision to consult with Dr. Blews. "Manifest" is defined in Respondent's exhibit 9, a page from the International Classification of Diseases, 9th Revision, 1995, or ICD-9, as "characteristic signs or symptoms of an illness." The doctors who testified, in person or by deposition, described every sign or symptom experienced prior to Dr. Blews' consultation, as also being a sign or symptom of Mr. Elder's other medical conditions. Mr. Elder's symptoms might have been diagnosed as also indicating that he had heart disease, if he had been referred to a cardiologist sooner. There is no factual basis to conclude that Mr. Elder, or any ordinarily prudent person, should have sought diagnosis, care, or treatment for heart disease when, in fact, his doctor reassured him that his EKG was normal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a Final Order approving Petitioner's claim for payment of medical expenses in the amount stipulated by the parties. DONE AND ENTERED this 12th day of July, 1995, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0373 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted in preliminary statement and Findings of Fact 2. Accepted in Findings of Fact 3. Subordinate to Findings of Fact 3. Accepted in Findings of Fact 22. Accepted in Findings of Fact 5-8. Accepted in Findings of Fact 5-8 and 12. Accepted in Findings of Fact 7 and 10. Accepted in Conclusions of Law. Accepted in or subordinate to Findings of Fact 6. Respondent's Proposed Findings of Fact. 1. Accepted in Findings of Fact 1 and 2. 2-3. Accepted in Findings of Fact 2. 4-5. Accepted in Findings of Fact 3. Accepted as corrected in Findings of Fact 23. Accepted in Findings of Fact 9. Accepted in Findings of Fact 8 and 9. 9-12. Accepted in or subordinate to Findings of Fact 9. 13-15. Accepted in Findings of Fact 20. Accepted in Findings of Fact 22. Accepted in or subordinate to Findings of Fact 20. Accepted in or subordinate to Findings of Fact 15-23. Accepted in preliminary statement and Findings of Fact 13. Accepted in or subordinate to Findings of Fact 14-16. Accepted in Findings of Fact 14 and 15. Accepted in Findings of Fact 16. Accepted in Findings of Fact 8. Accepted in Findings of Fact 9 and 20. Accepted in Findings of Fact 23. Accepted in Findings of Fact 17. Accepted in Findings of Fact 23. Accepted, but Dr. Dube's testimony was found credible and corroborated by his notes. COPIES FURNISHED: John T. Kennedy, Esquire The Injury Law Offices of John T. Kennedy 309 East Osceola Street Suite 306 Stuart, Florida 34994 C. Deborah Bain, Esquire Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Lane, P.A. 1645 Palm Beach Lakes Boulevard Suite 700 Post Office Box 2508 West Palm Beach, Florida 33401 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. David Mosme, Superintendent St. Lucie County School Board 2909 Delaware Avenue Ft. Pierce, Florida 34947-7299
Findings Of Fact The Respondent is a licensed medical doctor holding license number 0013446 issued by the Florida Board of Medical Examiners. He specializes in internal medicine, geriatrics, endocrinology and nuclear medicine with an extensive educational and professional background in those fields. He is currently in private practice in Dade County, Florida. The Petitioner is an agency of the State of Florida charged by Chapter 458, Florida Statutes (1981), with administering, regulating, and enforcing the licensure and medical practice standards as delineated by that chapter and related rules. Maurice Blanchar was examined at the Miami Heart Institute in 1976. At that time it was suggested by his attending physician that Mr. Blanchar have a "nuclear scan" because of a suspected abnormality described as "Gallin Syndrome." Mr. Blanchar was also examined at the Cooper Clinic in Dallas, Texas, in 1979, at which time it was also suggested that he have a nuclear scan (apparently related to cardiac complaints at that time of an unspecified nature). A coronary angiogram was performed at the Cooper Clinic, which was within normal limits. Sometime in 1979, Mr. Blanchar, with a prior history of undiagnosed cardiac complaints, read an advertisement in a local newspaper which offered nuclear scans to be performed by the Respondent, Dr. Sternberg. Mr. Blanchar kept this advertisement in his possession for approximately one year and ultimately called the Respondent's office for an appointment in July of 1980. Upon obtaining his appointment, Mr. Blanchar was advised to bring $95 as a initial fee, together with proof of medical insurance coverage. Upon arriving for his scheduled appointment at the Respondent's office, Mr. Blanchar executed a questionnaire designed to disclose his medical history. His specific presenting complaint was that he was suffering chest pains. He was a regular "jogger" and had no pain or discomfort attendant to this exercise, but suffered chest pains only while resting in bed at night. He met with the Respondent and informed the Respondent that he was responding to the advertisement regarding "nuclear scans" and informed the Respondent of his complaint, a somewhat unusual occurrence. Based upon Mr. Blanchar's complaints, together with information discerned from Mr. Blanchar's previous records from the Cooper Clinic and the Miami Heart Institute, Dr. Sternberg discussed the procedures he intended to perform with Mr. Blanchar. Dr. Sternberg informed him of the tests he would perform before and as he was performing them. Dr. Sternberg explained, and Mr. Blanchar admitted in his testimony, that the $95 fee was not for the entire nuclear scan series of tests performed, but was rather for a consultation and initial examination performed by the Respondent. The record does not clearly reflect whether specific fees for tests or procedures to be performed were discussed between the Respondent and Mr. Blanchar at this time, other than the Respondent informing Mr. Blanchar that his insurance company would pay for the cost of the nuclear scans involved. Prior to beginning the testing, the Respondent had no presupposition that Mr. Blanchar had cardiac arterial disease, based upon a previous normal coronary angiogram, and the symptoms of lack of pain while jogging, but pain while at rest in bed at night. Dr. Sternberg was aware that Mr. Blanchar was a jogger, which indicated to the Respondent that in terms of likelihood, his chances of having coronary artery disease were extremely small in terms of percentages. However, the fact that he developed chest pains while at rest in bed, led Dr. Sternberg to believe that this symptom could possibly be related to coronary artery disease. Because of the possibility of a hiatal hernia, arthritis, or possibly a congenital heart lesion, the Respondent performed three tests, the so-called "first pass," "MUGA at rest" and "MUGA at stress." All tests were designed to give complementary information, which information is not necessarily achievable by any one procedure in and of itself. The first procedure performed was the cardiac imaging blood pool test, commonly referred to as a "first pass study." It is the function of this test to assess the pattern of blood flow through the heart to determine right and left ventricular performance which is measured by cardiac wall motion and "ejection fraction." The first pass test is also utilized if there is a suspicion of vascular misformation, obstruction or shunting in a patient's heart. The first pass test was found to yield results within normal limits. The next procedure performed by the Respondent was the cardiac imaging, gated, static test, designed to show cardiac wall motion and ejection fraction, which last term is related to the volume of blood pumped by the heart upon ventricular contraction. This procedure is commonly termed the "MUGA at rest" study. The main concern of this test is a measurement of cardiac function as observed by wall motion of the heart and measured by the ejection fraction while the patient is at rest. This procedure is most commonly done as a baseline study for obtaining information concerning cardiac function while the patient is at rest for purposes of comparison with the cardiac imaging, gated, wall motion, ejection fraction test done with the patient at stress. This latter test is referred to as "MUGA at stress" and is performed in the case of patient Blanchar by using the so-called "Cold Presser Method," which involves stressing the heart to the required degree for the test by fastening an ice bag on the arm of the patient until he has reached the level of stress desirable for performing the MUGA at stress test. The MUGA at stress performed by the Cold Presser Method, although somewhat experimental, is an accepted means of inducing cardiac stress in the patient for purposes of obtaining meaningful MUGA at stress results. The MUGA at stress test, when used in conjunction with the MUGA at rest study, gives the physician a comparison of relevant data concerning cardiac function. Dr. Sternberg was the primary treating physician for Mr. Blanchar. He did not see him on a referral basis from any other physician with any attendant request to do a specific or narrow diagnostic service. Rather, Mr. Blanchar presented himself with a complaint of chest pains at night while at rest, therefore Dr. Sternberg had a broader range of potential problems to consider in determining which diagnostic test to perform on Mr. Blanchar. When Dr. Sternberg performed the first pass test, which was performed first of the three tests performed on patient Blanchar, the ejection fraction was normal, but on the lower side of a normal range for this patient. Dr. Sternberg and the Respondent's expert witness, Dr. Epstein, as well as Dr. Gottlieb testifying for the Petitioner, established that the first pass test is medically indicated to rule out problems such as "shunting," obstructions or regurgitation. Dr. Sternberg had no prior medical history of Mr. Blanchar which would automatically rule out any such problems and, in the exercise of sound medical judgment, felt that the first pass test should he performed. The decision to perform this test was medically appropriate given the patient's symptoms and the doctor's responsibility as the only primary care physician involved. Dr. Sternberg then performed the MUGA studies at rest and at stress and found that the wall motion of the heart looked normal in the left anterior oblique view. The ejection fraction was normal with the MUGA study "at rest" test, but was higher in the normal range than had been the case with the first pass study, which led him to believe that the previous first pass study had an anxiety factor in the patient as a contributing factor to its results. Thus, the MUGA at stress test was able to confirm the efficacy of the performance of and results of the first pass study and Dr. Sternberg was, as well, able to rule out any problems related to shunting, regurgitation, or obstruction in the patient. He was able to confirm that the first pass study, with the patient's anxiety as a factor, had resulted in a slightly altered ejection fraction result. In any event, after these two tests were performed, he also felt the need to look at the wall motion of the heart, under stress conditions in the other areas of the heart, because he had not yet found any area of abnormality. Ultimately, no substantial abnormality was found in the patient's heart, except a suggestion that stress altered his ejection fraction. He also found that the wall motion of Mr. Blanchar's heart in the region of the left circumflex branch, the posterior laterial wall, towards the apex, showed sluggish motion, in fact, almost a paradoxical type of motion during stress, as compared with the baseline study which indicated that there was evidence of probable coronary artery disease at that point. Dr. David Allen Epstein practices diagnostic radiology and nuclear medicine. He was accepted as an expert witness on behalf of the Respondent and largely corroborated the Respondent's testimony, finding the procedures performed by Dr. Sternberg for patient Blanchar to be medically legitimate and to constitute matters of clinical judgment. Dr. Epstein established that the Respondent had available to him other justifiable tests beyond those he performed for Mr. Blanchar and established that the first pass, MUGA at rest and MUGA at stress studies performed, were for medically justifiable reasons and, in a patient with the presenting symptoms of Mr. Blanchar, were each designed to elicit information not directly available from the other tests. The use of color for cardiac computer studies is a useful diagnostic procedure. Neither Dr. Stuart Gottlieb nor Dr. Stolzenberg (Petitioner's expert witnesses) found any fault with the management or care provided these patients, nor the choice of tests performed by Dr. Sternberg with the exception of the first pass test and the separately billed stress test. Both Drs. Gottlieb and Stolzenberg felt the first pass test was redundant. However, their testimony in this regard is rejected and Dr. Epstein's and the Respondent's is accepted, inasmuch as the Respondent was the primary care physician and the only physician concerned with these proceedings who saw the patients in a clinical setting, charged with evaluating the patient's own complaints and arriving at a diagnosis. Patient Blanchar was not presented to the Respondent by another referring physician upon a narrow area of specific inquiry, rather Dr. Sternberg had to perform the added first pass study in order to rule out possible shunting, obstruction, regurgitation and other problems and his testimony regarding the necessity for this is corroborated by that of his expert, Dr. Epstein. It was established that all three cardiac studies were efficacious with regard to patient Blanchar and the Respondent's testimony and Dr. Epstein's testimony is accepted to the exclusion of other testimony in this regard. The Respondent's bill presented to patient Blanchar (and presumably his insurance carrier) is set forth in Petitioner's Exhibit "A" and reflects the following charges: Comprehensive office visit, new patient $ 95.00 Stress testing 150.00 Provision of Radionuclide 20.00 Cardiac Imaging gated (wall Motion, ejection fraction) w/stress 500.00 Cardiac Imaging gated (wall Motion, ejection fraction) static 500.00 Cardiac Imaging blood pool (1st pass) and or vascular flow 500.00 Dr. Sternberg charged patient Blanchar an additional $150 for "stress testing" which is represented on his bill to be a separate and different test from the cardiac imaging, gated, wall motion study with stress or "MUGA at stress," for which the doctor charged Blanchar $500. Although the Respondent represented that this "stress testing" was a separate service performed, there is no evidence whatever in the record which would establish that such a stress test was performed separate and apart from the MUGA at stress, performed for the $500 charge. A separate stress test would have been redundant and unnecessary in any event. It is obvious therefore that the patient Blanchar was billed for a separate item called "stress testing" in the amount of $150 which was not actually performed and which was not necessary. Dehlia Teramo suffered an automobile accident on March 12, 1980. She was initially seen by Dr. Carlos B. Fernandez, who saw her on the day of the accident. He ultimately referred Ms. Teramo to the Respondent with a history of trauma sustained in the accident with subsequent pain throughout her head, ears, eyes, neck, nose, and left shoulder. On April 10, 1980, Ms. Teramo initially saw the Respondent complaining of frequent headaches, neck pain, eye pain, high blood pressure, back and shoulder pains and pain in her nose, having sustained trauma and unconsciousness after being thrown about in the interior of her car during the auto accident. She additionally suffered pain in the left upper and lower parts of her mouth and suffered a recurrence of her menstrual period. Dr. Fernandez sent her to the Respondent for evaluation and diagnosis with reference to all these physical complaints, including the possibility of a fracture in the head or left shoulder area, but not solely for determination of the presence of a fracture of the sphenoid bone of the head. The Respondent performed three diagnostic tests or studies on different dates to attempt to determine the basis of Ms. Teramo's injuries. The first study was conducted on April 10, a blood circulation study. This study, when confined to the cerebral area is known also as a brain flow study. The study was conducted by the Respondent in area of the head as well as the spine and shoulder. The test is performed by injecting the patient with a radionuclide and then following the "bolus" throughout the areas in the which the physician is interested in gathering data with an x-ray camera assisted by a computer. In effect, this test images the blood flow in the blood vessels involved in the head, spine and shoulder areas and is used to detect subdural or epidural hematomas, abnormal vascular changes in the brain and in the other areas tested. It is designed to show any breaks or "leaks" in the blood/brain barrier, that is, any passage of blood from the vascular system of the brain into surrounding brain tissue. In itself, it is not the primary test for determining a fracture, but it is useful and all expert witnesses agreed and established that it was within sound medical judgment and patient management to perform such a test to aid and ascertain the basis for the complaints Ms. Teramo had regarding her head, neck and shoulder areas. A sphenoid bone fracture would be difficult to diagnose with this one test alone, but that was not the sole basis for the referral of Ms. Teramo to the Respondent. The radionuclide which is injected travels throughout the patient's body and the physician can do a number of limited scans or a total body scan utilizing the one injection of radionuclide. In performing the blood circulation or blood flow study, the Respondent charged patient Teramo for each component of the study, in effect, each view taken was charged for as a separate procedure as was the injection of the radionuclide. The computer processing and color image analysis was also disclosed to patient Teramo to be a separate procedure and was billed for separately, as shown on Petitioner's Exhibit "K," the bill set forth below. The blood circulation study and the quantitative cerebral blood flow study were represented to the patient Teramo on the bill as being separate studies and a separate $200 charge was assessed against the patient for the quantitative cerebral flow study. These studies are performed during the same patient visit and utilizing the same injection of radionuclide. The cerebral blood flow study is dynamic, with imaging done as the radioactive "bolus" moves through the vascular area in question. The blood circulation study, also called blood pool study, is the static form phase of the procedure performed after the vascular system in the area in question has already been completely infused with radionuclide. The testimony of Dr. Stolzenberg, coupled with that of the Respondent himself, establishes that the quantitative cerebral blood flow study is indeed tested with the same injection of radionuclide at the same patient visit. It is a different test or procedure, however, although many practitioners do not use it and it is unusual to see it used. However, it was not demonstrated, because it is not a standard type of procedure, that a practitioner should not charge a separate fee for it, not that the brain flow study always necessarily includes a quantitative, cerebral blood flow study. Thus it was not shown that the quantitative, cerebral blood flow study with the separate charge of $200 on Ms. Teramo's bill was not a separately identifiable test performed on her. The Petitioner also was unable to establish that this particular test was not medically indicated for a patient with Ms. Teramo's presenting symptoms. On April 14, 1980, the Respondent performed another nuclear scan on patient Teramo, known as a bone scan. This is accomplished by again injecting the patient with a radionuclide substance which adheres to the bones and joints after passage of a period of time while the patient waits in the examining facility. This scan was utilized for the same areas as the previous scan or blood flow study, that is the head and left shoulder areas and cervical spine area. The bone scan is used to aid in the physician's determination of the presence of fractures. The Respondent separated his charges for this procedure into a separate charge for each view obtained, as well as a separate charge for the injection of the radionuclide, and a separate charge for computer processing and clinical color imaging analysis done by the Respondent himself. On April 18, 1980, the Respondent performed an echoencephalogram upon patient Teramo. This procedure is designed to determine the presence of subdural or epidural hematomas, fractures and tumors. It is commonly utilized in cases of patients who sustain traumatic injury. Having reviewed the results of all these procedures, the Respondent arrived at a diagnosis of patient Teramo as having a fracture of the sphenoid bone of the head. No apparent diagnosis was made with reference to the shoulder area. The Respondent presented a bill to patient Teramo, admitted as Petitioner's Exhibit "K," reflecting the following pertinent charges: 4/10/80 Initial consultation $ 95.00 Injection of Radio- nuclide for scans 20.00 Scans: (Blood circulation study) Head LL 75.00 Head PA 75.00 Head Vertex 75.00 Cervical Spine PA 75.00 Shoulder AP 75.00 L. Shoulder AP 75.00 R. Shoulder PA 75.00 L. Shoulder PA 75.00 Head AP 75.00 Head RL 75.00 Computer processing for high resolution and high sensitivity image produc- tion and clinical color image analysis 350.00 Quantitative Cerebral Blood Flow Study 200.00 4/14/80 Office visit 25.00 Injection of Radio- nuclide for scans 20.00 Scans: (Bone and Joint Study) Head AP 75.00 Head RL 75.00 Head LL 75.00 Shoulder AP 75.00 L. Shoulder AP 75.00 R. Shoulder PA 75.00 L. Shoulder PA 75.00 Head PA 75.00 Cervical Spine PA 75.00 Cervical Spine LL 75.00 Cervical Spine RL 75.00 Computer processing for high resolution and high sensitivity image produc- tion and clinical color image analysis. 350.00 4/18/80 Office visit 25.00 Echoencephalogram, A-Mode 150.00 The blood and bone scan studies done with regard to Ms. Teramo's complaints, as well as the echoencephalogram, are medically appropriate and a proper exercise of sound medical judgment by a clinical physician and primary treating physician in the position of Dr. Sternberg with regard to this patient. It must be remembered that Ms. Teramo was not merely presented for determining the presence of a sphenoid fracture, rather she was presented to Dr. Sternberg by Dr. Fernandez, for investigation of various types of suspected pathologies. Dr. Sternberg's testimony, as corroborated by that of Dr. Epstein, establishes that certain fractures not always detectable by specific types of radiographic techniques may be detected by the device of blood pool scans. The Respondent showed (corroborated to some extent by Drs. Gottlieb and Stolzenberg) that the tests performed on Ms. Teramo constituted matters of clinical judgment and that Dr. Sternberg had available to him other tests which he could have performed on Ms. Teramo or Mr. Blanchar and did not. Some physicians use color imaging in computer processing and that is a legitimate type of evaluation and diagnostic technique. Further, Dr. Stolzenberg recognizes that there are some physicians who do cerebral blood flow studies of the brain and charge fees there for and acknowledges that there is no prohibition against such a procedure and that some physicians use the aid of a computer during performance and evaluation of brain scans as a routine matter. Neither of the Petitioner's expert witnesses are primary care physicians and Dr. Stolzenberg admitted that he does not practice internal medicine; neither have examined either of Dr. Sternberg's patients concerned in this proceeding. Only Dr. Sternberg, of the three doctors involved, is a primary care physician. It has thus been shown that the first pass study, the MUGA at rest and the MUGA at stress studies, as well as the blood circulation study, quantitative cerebral blood flow study and bone scans performed on these two patients were medically legitimate and all were within an appropriate choice of tests and were selected and performed in a manner within acceptable medical standards. The fact that the Respondent charged a $75 fee for each of the various scans or views of the head, shoulders, and cervical spine of Ms. Teramo for purposes of the blood circulation study and the bone scans performed appears exorbitant, however there is no evidence that it was not a charge directly related to the Respondent's time and skill as a highly trained specialist, coupled with a component in each of those charges for the use of highly sophisticated, color, computer processing equipment and camera which he owned and operated himself in his own office. Since the specific rates charged by physicians for this and any other type of service, are not regulated, these charges cannot be delved into further for purposes of this proceeding once the diagnostic procedures to which they relate have been established, to be medically acceptable, which they have, with the exception of the $150 charged patient Blanchar for the unperformed stress test.
Recommendation Having considered the foregoing Finding of Fact, Conclusions of Law, the candor and demeanor of the witnesses and the pleading and arguments of the parties, it is, therefore RECOMMENDED: That the Board of Medical Examiners enter a Final Order finding the Respondent, Joshua L. Sternberg, M.D., guilty of a violation of Sections 458.331 (1)(1) and (o) Florida Statutes (1981), to the extent delineated above, and that he be fined the sum of $1,000 for each of the above two violations. DONE and ENTERED this 30th day of November, 1983, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 30th day of November, 1983. COPIES FURNISHED: Harold M. Braxton, Esquire 45 S.W. 36th Court Miami, Florida 33135 Steven M. Slepin, Esquire 1114 East Park Avenue Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Should discipline be imposed against Respondent based upon the allegation that she failed to meet minimal standards of acceptable and prevailing nursing practice in violation of Section 464.018(1)(n), Florida Statutes (2002)?
Findings Of Fact STIPULATED FACTS: Petitioner is the state department charged with regulating the practice of nursing pursuant to Section 20.43, Florida Statutes, Chapter 456, Florida Statutes, and Chapter 464, Florida Statutes. At all times material to the Complaint, Respondent was licensed to practice as a certified registered nurse anesthetist ("C.R.N.A.") within the State of Florida. Respondent's address of record is 4409 Hoffner Avenue, Suite 328, Orlando, Florida 32812. On or about March 13, 2003, Patient M.M. presented to Endosurg Outpatient Center (Endosurg) for a colonoscopy. The colonoscopy began at or about 7:16 a.m. According to the Respondent's Anesthesia Record, Patient M.M. had a blood pressure of 120/70 at 7:30 a.m., and a blood pressure of 140/84 and an oxygen saturation of 96 percent "at the end of case." Respondent began mouth-to-mouth resuscitation and CPR at or about 7:46 a.m., then provided oxygen via a bag-valve mask at or about 7:48 a.m., and then provided oxygen by intubation at or about 7:50 a.m. Section 464.018(1)(n), Florida Statutes (2002), subjects a licensed nurse anesthetist to discipline for failing to meet minimal standards of acceptable and prevailing nursing practice. ADDITIONAL FACTS: The indications for the endoscopic procedure performed on Patient M.M. were in relation to bright red blood per rectum and anemia. The endoscopic diagnosis confirmed by the procedure was diverticulosis and internal hemorrhoids. According to Patient M.M., this was the first colonoscopy she had ever had. In the history reported by Patient M.M. prior to the procedure, there was no report of chest pain, indigestion, heart burn, or nausea. The patient did report rectal bleeding. Patient M.M. provided a history of bronchitis, but it was noted that there were no recent problems with the bronchitis. In the recount of her past medical history, she made no reference to congestive heart failure, coronary artery disease, diabetes, atrial fibrillation, angina, heart murmur, heart valve problems, or irregular heart. She did have a history in her family of heart disease; the family member was her father. By history, the patient suffered from high blood pressure. At the time the patient was seen at Endosurg she was 67 years old, 5 feet 5 inches tall, and weighed 215 pounds. Respondent has practiced for 30 years in numerous settings. Respondent was an independent contractor recently employed at Endosurg. Over time she has met her obligations in relation to continuing education for her profession. When Respondent first saw Patient M.M. on the date in question, the patient was in the holding area adjacent to the procedure room. Respondent introduced herself to the patient and checked the intravenous access. The line had been placed and Respondent checked to make certain that the line was patent. Respondent explained to the patient that the patient would be given sedation. In particular, Respondent told the patient that she would be placed under conscious-sedation during the procedure. The patient responded that her son had had post- operative nausea and vomiting, having undergone sedation, but that the patient had experienced no problems with anesthesia in the past. Respondent listened to the patient's chest. The heart was regular, in that there were no audible sounds of irregularity or murmur at that time. The patient's chest was clear. No signs of wheezing or bronchi or rales were present that would indicate upper-respiratory difficulties. Respondent was aware that the patient suffered from hypertension. Before the procedure Respondent did not observe anything in the patient's demeanor which suggested that the patient was overly anxious. As the anesthesia record reflects, the administration of anesthesia by Respondent commenced at 7:15 a.m. and ended at 7:26 a.m. The procedure commenced at 7:16 a.m. and concluded at 7:25 a.m. Before providing the anesthesia, Respondent placed a blood pressure cuff on the patient, a pulse oximeter, an EKG monitor, and a pre-cordial stethoscope. The patient was anxious and Respondent administered a total of 2 mg of Versed. The Versed was administered twice. After waiting to see the reaction to the first administration, a second administration was provided. During the administration of this medication, Respondent discussed its subjective influence with the patient. Two other persons were in the procedure room with Respondent. They were the physician gastro-endrologist, who was performing that procedure, and an anesthesia technician. The doctor involved was Dr. Nehme Gebrayel. When the scope used to perform the procedure was inserted the patient winced. In response to those circumstances Respondent provided Fentanyl, an ultra-short acting narcotic in an amount considered appropriate to the circumstances. When the scope reached the area within the colon where the scope needed to be turned, the patient grasped the arm of the technician and dug her nails into his forearm. The physician called upon Respondent to provide other sedation to allow him to continue the procedure while providing some comfort to the patient. In response Respondent gave the patient 30 mg of Propofol, an hypnotic sedative with a short half-life. Later the patient began to dig her nails into the technician's forearm once more, which the technician reported to the physician. The physician told Respondent to provide additional sedation. Respondent gave the patient 30 mg more of Propofol. While the procedure was ongoing Respondent monitored the patient's vital signs. Before the procedure, the blood pressure was 142/100, the heart rate was 72. The second reading on blood pressure taken by Respondent during the procedure occurred between 7:18 a.m. and 7:20 a.m., with a reading of 126/66. Pulse oxygen readings that were recorded at the beginning and during the procedure reflected 98 percent and 95 percent saturation respectively. When the physician began to withdraw the scope at the end of the procedure, Respondent told the patient that the procedure was being finished and that the physician was taking the scope out. The patient responded by giving a "thumbs up" gesture. When the Doctor finished the procedure, Respondent asked the patient if the patient was doing "O.K." Respondent asked the patient if the patient was experiencing discomfort, the patient responded "not really." Respondent told the patient that the patient was being taken back to the holding area where she had been picked up before and brought into the procedure room. While the physician was still in the procedure room, Respondent went to the door and opened it into the holding area, and the nurse from the PACU at Endosurg came into the procedure room. Maureen Mayhew, R.N., was that nurse. When nurse Mayhew entered the procedure room, the vital signs in relation to blood pressure, pulse, and the pulse oximeter reading were still displayed on the monitor in the procedure room. Those readings at the end of the case were blood pressure 140/84, heart rate 74, respiratory rate 16 per minute and the saturated oxygen level 96 percent. At that time the patient responded to queries and stimuli. The reference to responding to queries means that the patient was able to converse with the Respondent. When Respondent turned over the care to nurse Mayhew, she told the other nurse that the patient had high blood pressure and a history of bronchitis but that the chest was clear when listened to prior to the procedure. Respondent explained that the patient had undergone a colonoscopy, in which 2 mg of Versed, 50 mg of Fentanyl, which is the equivalent to 1 cc and a total of 60 mgs of Propofol, divided into two doses had been provided. Respondent told nurse Mayhew that the patient was awake and talking and that her blood pressure had started at 140, had drifted down to 120 and was back at 140, as to systolic readings. After Respondent released the patient to the care of nurse Mayhew, she proceeded to address the next case. The administration of anesthesia to that patient commenced at 7:27 a.m. At about 7:45 a.m. a C.N.A. at Endosurg came into the procedure room where the next case was underway. The C.N.A. stated that there was a problem with Patient M.M., in that the patient was not responding as she had been. The C.N.A. asked that the doctor and Respondent come and see the patient. After arranging for someone to continue to monitor the patient that was being examined at that moment and with the placement of intravenous fluid with that patient to keep him hydrated, Respondent and the doctor left the procedure room and entered the holding area where Patient M.M. was found. When Respondent and the physician approached the patient, the patient was alone, flat on the bed. Respondent checked the patient's pulse at her neck, while the physician checked the patient's pulse at the wrist. Respondent called the patient's name and rubbed on the patient's chest. The patient made no response. The patient had no pulse. Respondent told the doctor "I don't have a pulse here." The doctor responded "Neither do I." When Respondent and the doctor addressed the patient in the holding area, they were uncertain when the patient had stopped breathing. The doctor commenced chest compressions as a form of CPR. Respondent leaned over the patient and breathed two quick breaths into the patient through mouth-to-mouth CPR. Respondent asked someone else employed at Endosurg to bring the CODE cart. Someone asked the Respondent if they needed to call 911. Respondent said, "yes" and the call was placed. Respondent was handed an ambubag with a valve mask to assist the patient in breathing. To check the bag's operation Respondent squeezed twice and found that the bag was not working. This bag belonged to Endosurg, and by inference Endosurg, not the Respondent is found to be responsible for its maintenance. During the inception of the mouth-to-mouth resuscitation provided by her, Respondent noticed that the patient's chest rose which is an indication that the patient was being ventilated. By contrast, the initial ambubag provided no evidence that ventilation was occurring. When the facility ambubag failed, Respondent asked another employee at Endosurg to go and pick up her personal ambubag that was located in another part of the procedure room. While someone went to retrieve Respondent's personal ambubag, the Respondent continued to provide mouth-to-mouth resuscitation while the physician gave closed chest compressions to the patient. During that time the chest was rising, indicating that the patient was making ventilatory efforts. When the second ambubag, belonging to Respondent, was handed to her, it was connected to oxygen and it performed as expected. The patient was given several quick breaths of the oxygen through the ambubag. Respondent then used a laryngoscope and an endotracheal tube to intubate the patient and the patient was intubated. While being ventilated through the endotracheal tube, Respondent used a stethoscope to listen to the breath sounds of the patient and she found evidence that the endotracheal tube was secure. While this was occurring the physician continued chest compressions. The physician also administered certain drugs to the patient to assist the patient. One drug being administered to the patient at the time was Epinephrine. The patient was then defibrillated. The defibrillator did not have a separate monitor. It was one in which the paddles associated with the defibrillator were not hooked to a device that would produce print strips of the results when the paddles were applied. This defibrillator belonged to Endosurg. The Respondent and the physician relied upon the EKG monitor hooked up to the patient to gain information and her status. When the Respondent and the doctor had come into the holding area, the patient was not on the monitor. The physician placed the leads on the chest of the patient to connect the monitor to reflect the pulse rate, if any were present. When the patient was first defibrillated and there was no change in the heart rhythm, another dose of Epinephrine was administered. About that time the fire rescue unit that had been summoned by the 911 call arrived. That was at 7:51 a.m. The fire rescue personnel included an EMT paramedic qualified to maintain the airway for the patient. Those persons took over the patient and prepared the patient for transfer. Respondent asked the doctor if it was acceptable to return to the procedure room and check the status of that patient. The physician gave her permission but Respondent did not return to the procedure room until the EMT paramedic had checked the position of the endotracheal tube in Patient M.M. Through the efforts made by Respondent and the physician the patient regained her pulse. A note in the patient's records refers to the existence of the heart rate and pulse when the patient was turned over for transport to a hospital. That hospital was the Villages Regional Hospital. There the patient was diagnosed with cardiac arrest and anoxic brain damage, encephalopathy. Subsequently the patient was transferred to Leesburg Regional Medical Center. The decision was eventually made to remove the patient from life support, given her condition. In an interview nurse Mayhew gave to an investigator with the Department of Health, relied upon by the parties at hearing, Ms. Mayhew told the investigator that five patients were in the PACU at Endosurg when Patient M.M. was transferred to that unit. At the time there was only one registered nurse and a single C.N.A. in the unit. Liz Singleton was the C.N.A. Ms. Mayhew told the investigator that Ms. Singleton indicated to Ms. Mayhew that the patient was alert and talking when the patient entered the unit. Ms. Mayhew said that she gave Patient M.M. a rapid assessment shortly after the arrival of the patient in the unit. Ms. Mayhew told the investigator that she noted that the Patient M.M. had declined from alert to responsive at that time. When checking the color and vital signs, a decrease in blood pressure was noted and the patient was placed in the Trendelenberg position (head down, feet raised) to try to increase the blood pressure. Ms. Mayhew mentioned giving Patient M.M. a sternal rub. The patient was noticed to blink her eyes and move her shoulder. Fluids were started, and the patient was given Romazicon intended to reverse the effects of anesthesia that had been provided to the patient during the procedure. Ms. Mayhew told the investigator that she gave C.N.A. Singleton instructions not to leave the patient's bedside and to give the patient one-on-one care. Ms. Mayhew then went to arrange for another C.N.A. to assist in the PACU. At some time during the care provided by nurse Mayhew, she indicated that there was a monitor for blood pressure, oxygen saturation, respiration and pulse and that the alert alarms were set. Nurse Mayhew told the investigator that she was starting an IV two beds away and heard the second C.N.A. talking to Patient M.M. just before the alarms went off. She said that Patient M.M. was in respiratory arrest and that she called a CODE, meaning nurse Mayhew called a CODE. Any entries concerning the vital signs in relation to Patient M.M. that were made following the procedure while the patient was in the holding area were made by C.N.A. Singleton, according to nurse Mayhew's statement. The monitor had printout capabilities at the time but was not activated. Notwithstanding these remarks attributed to nurse Mayhew in the interview process, it is found that when Respondent and the doctor addressed the patient in the holding area the monitor was disconnected. Although in her remarks made to the investigator nurse Mayhew said that the vital signs were recorded by the C.N.A., the record of nursing assessments reflecting the recording of the vital signs was signed by nurse Mayhew. They show that at 7:30 a.m. the patient's blood pressure was 78/46, with a pulse rate of 52, and a respiratory rate of 12. At 7:35 a.m. the blood pressure was 74/42, with a pulse rate of 40, and a respiratory rate of 14. The physician gave certain post-op orders concerning Patient M.M. which were noted by nurse Mayhew when she affixed her signature. One of those orders indicated that Ms. Mayhew was obligated to "notify physician for blood pressure less than 90/60, pulse >110." This order was not followed. EXPERT OPINION: Cenon Erwin Velvis, C.R.N.A., has been licensed in Florida for eleven years. He was called as an expert for Petitioner to testify concerning Respondent's care rendered Patient M.M. in this case. The witness was received as an expert. Both the Respondent and Mr. Velvis have provided anesthesia on numerous occasions while patients were undergoing colonoscopies. To prepare himself for the testimony, nurse Velvis reviewed medical records pertaining to Patient M.M. and the investigative report of the Department of Health. His opinion is that Respondent in caring for Patient M.M. fell below the standards expected of a C.R.N.A. when considering acceptable and prevailing nursing practice. Concerning his opinion, nurse Velvis believes that Patient M.M. was transferred to the PACU in an unstable condition, that Respondent did not remain with the patient long enough to ascertain this instability and the need for treatment and to conduct an ongoing evaluation secondary to the side effects of the anesthesia, and that once the patient experienced difficulties, the airway and circulatory system were not secured by Respondent in a timely manner. Nurse Velvis believes that the blood pressure reading at 7:30 a.m. of 78/46 and heart rate and pulse of 52 are low, dangerously so. According to nurse Velvis the normal range is 120/80 for blood pressure. There can be an acceptable 15 to 20 per cent departure from what is considered normal. This takes into account that nature of the procedure that the patient had undergone. The vital signs that were reflected at 7:30 a.m. demonstrate patient instability at 7:30 a.m., in Mr. Velvis' opinion. The Romazicon administered to the patient would not ordinarily be used given the amount of anesthesia provided the patient in the procedure. The patient's responsiveness had progressed to a point from what was initially assessed as responsive or responding to queries, to an unresponsive state. This would account for the administration of Romazicon, a reversal agent to the tranquilizer that had been used during the procedure. Nurse Velvis notes that the patient had gone from responding to inquiries to a state of unresponsiveness where the patient would only move when given painful stimuli. Mr. Velvis was aware that the blood pressure at 7:35 a.m. was 74/42, with a pulse rate of 40, indicating a further decline. The approximate time of arrest for the patient was 7:45 a.m. from records reviewed by Mr. Velvis. Mr. Velvis believes that the Respondent was responsible for verifying the patient's vital signs upon admission to PACU. He also originally expressed the opinion that Respondent failed to utilize the intubation equipment in a timely fashion to restore breathing following the emergency. Mr. Velvis concedes that if the cardiac arrest that occurred with Patient M.M. were related to anesthesia, the respiratory response by the patient would be lowered. But the recording of a respiratory rate of 12 at 7:30 a.m. and 14 at 7:35 a.m. does not satisfy Mr. Velvis concerning the quality of ventilation in the patient, even with the efforts of the patient being recorded. He also makes mention that the level of oxygen saturation at those times was unknown when reviewing the record. He does acknowledge that a respiratory rate of 14 as such is not consistent with respiratory arrest. Mr. Velvis acknowledges that nothing in the record indicates that nurse Mayhew notified the doctor when the low blood pressure readings were taken at 7:30 a.m. and 7:35 a.m., contrary to post-op orders. When provided a hypothetical under interrogation at hearing, that reflects the facts that have been reported here concerning the Respondent and the doctor in their effort to restore Patient M.M.'s breathing, Mr. Velvis retreated from his opinion that the airway and circulatory system of the patient was not secured in a timely manner when confronted with the crisis. While Mr. Velvis changed his opinion during cross- examination at hearing concerning the response by Respondent leading to the defibrillation, he still continued to express the opinion that Respondent fell below the standard of care and was responsible for hypoxia in the patient, the patient not breathing. He also restated his opinion that Respondent was below the standard of care for her release of the patient from the procedure room into the PACU in an untimely manner. Mr. Velvis expresses the opinion that immediate patient care was the Respondent's responsibility but in the atmosphere of team work the physician was the captain of the ship. Although the physician was the captain of the ship, the Respondent was responsible to do what was most important for the patient, according to Mr. Velvis. Mr. Velvis recognizes that nurse Mayhew would have been more helpful if she had notified Respondent and the physician earlier about Patient M.M.'s condition in the holding area, and Ms. Mayhew's error in leaving the patient when the patient was unstable. Mr. Velvis expresses the opinion that the mechanism behind the cardiac arrest in Patient M.M. was a lack of oxygen, in that the airway was not secure. Mr. Velvis in his testimony concedes that the patient could have had cardiac failure not due to a problem with respiration. Michael A. Binford, M.D., was called by Respondent as an expert. He is a practicing anesthesiologist in Florida who completed his anesthesiology residency approximately ten years ago. He works with C.R.N.A.s in his practice and as such is able to offer opinion testimony about the performance of C.R.N.A.s in their practice. He is familiar with the type of procedure which Patient M.M. was undergoing and the drugs administered to provide anesthesia. Having reviewed the patient's records and the investigative report from the Department of Health, his opinion is that Patient M.M. was stable when transferred from Respondent's care to nurse Mayhew's care. That opinion is based upon vital signs recorded at the commencement, during, and at the end of the procedure. From what he saw in the record concerning the medication administered to the patient during the procedure, it was appropriate. Nothing that he saw in the record made Dr. Binford believe that the Respondent should have stayed with the patient for a longer period of time, given the amount of medication provided. By contrast Dr. Binford refers to the vital signs recorded when the patient was under nurse Mayhew's care at 7:30 a.m. and 7:35 a.m. Those are not vital signs of a patient in a stable condition. Dr. Binford believes that the patient was deteriorating at that time and that nurse Mayhew violated the physician's post-op order by not immediately notifying the doctor of the vital signs she found. Dr. Binford in referring to nurse Mayhew's statement given to the investigator, reads the statement to indicate that the patient was stable when entering the PACU but declined from alert to responsive. To Dr. Binford this reflects a change in mental status in the patient. Definitive evidence in the change in status is borne out by the vital signs taken at 7:30 a.m., and 7:35 a.m., in Dr. Binford's opinion. Although the Romazicon given by Nurse Mayhew would not have been a drug of choice for Dr. Binford, he understands that nurse Mayhew may have considered it appropriate to provide an antidote to the Versed by using Romazicon. Dr. Binford did not believe that the Versed would have caused the low vital signs encountered by nurse Mayhew. Having reviewed the autopsy report related to Patient M.M., Dr. Binford believes that a cardiac event was associated with the lower vital signs. He does not believe that the respiratory rate of 12 and 14 found at 7:30 a.m. and 7:35 a.m. respectively are consistent with respiratory arrest. Dr. Binford explains that the process involved with a heart attack, which is also referred to a myocardial infarction, is in relation to the entire heart or some segment within the heart not getting sufficient oxygen. If the patient is not breathing for a period of time, the total level of oxygen in the blood drops significantly. That is a possibility. The second possibility is that if there is plenty of oxygen in the blood, but one of the blood vessels supplying the heart muscle becomes blocked and no blood can get past the obstruction, this can also cause oxygen deprivation. Either explanation can cause damage to the heart and the brain. The first example is one in which problems are experienced in getting air and oxygen into the lungs, that can be picked up and transported around the body and the second explanation involves a problem with getting the blood flow into the area as needed. The first example related to problems of respiration is referred to by Dr. Binford as a primary respiratory event. The second example is referred to as a primary cardiac event, involving restricted blood flow. In Dr. Binford's opinion if the patient has respiratory difficulty, the respiratory rate ranges from 0 to 8, which was not the case here. In Dr. Binford's opinion neither the Versed or Romazicon were responsible for the vital signs shown in the patient while she was in the holding area. In Dr. Binford's opinion the cause of the patient's decline was indicative of a primary cardiac event, as opposed to a primary respiratory event and the anesthesia as a causative agent would not explain it. He expresses this opinion within a reasonable degree of medical certainty. Given his knowledge of the case, Dr. Binford did not find any deficiencies in the way the Respondent treated the patient. Within a reasonable degree of medical certainty Dr. Binford believes that the Respondent met her obligations as to the basic standards for her profession in the pre-operative phase, during the procedure, upon the release of the patient to nurse Mayhew and in response to the emergency in the holding area. Having considered the opinions of both experts, the opinion of Dr. Binford is more persuasive and is accepted as it exonerates Respondent for her conduct.
Recommendation Based upon the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 8th day of December, 2005, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 8th day of December, 2005. COPIES FURNISHED: Irving Levine Assistant General Counsel Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Damon A. Chase, Esquire Chase Law Offices, P.A. Post Office Box 196309 Winter Springs, Florida 32719 Alex Finch, Esquire 2180 Park Avenue, Suite 100 Winter Park, Florida 32789 Dan Coble, Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue in this case is whether Respondent, Manuel Alvarado, M.D., committed violations of Chapter 458, Florida Statutes, as alleged in an Administrative Complaint issued by Petitioner, the Department of Health, on July 19, 2005, in DOH Case Number 2004-00926, and amended by Order entered March 31, 2006; and, if so, what disciplinary action should be taken against his license to practice medicine in Florida.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 458, Fla. Stat. (2005). (Admitted Facts). Respondent, Manuel Alvarado, M.D., is, and was at the times material to this matter, a physician licensed to practice medicine in Florida, having been issued license number ME 59124. (Admitted Facts). Dr. Alvarado has been licensed in Florida since 1991. Dr. Alvarado's mailing address of record is 1414 East Main Street, Leesburg, Florida 34748. (Admitted Facts). Dr. Alvarado has practiced medicine in Leesburg, Florida since June 1991. Dr. Alvarado is board-certified in Obstetrics and gynecology. (Admitted Facts). No evidence that Dr. Alvarado has previously been the subject of a license disciplinary proceeding was offered. Patient O.C. At issue in this case is Dr. Alvarado's treatment of Patient O.C., on August 18 and 19, 2003. Patient O.C. at the times relevant in this case was 25 years of age. Patient O.C., at all times relevant, was pregnant. This was Patient O.C.'s first pregnancy. After becoming pregnant, Patient O.C. utilized Advanced Obstetrics and Gynecology (hereinafter referred to as "Advanced") for pre-natal care. Advanced, located in Leesburg, Florida, was at the times relevant to this matter a group practice conducted by Shivakumar Hanubal, M.D., and Dr. Alvarado. Patient O.C. was attended primarily by Dr. Shivakumar, but she was also seen on one or two occasions for pre-natal care by Dr. Alvarado. Patient O.C. was a High-Risk Patient. Patient O.C. was considered to be a "high-risk" patient due to three factors. First, Patient O.C. was obese. When she first reported for pre-natal care she weighed approximately 285 pounds. Her weight increased to between 300 and 330 pounds by August 18, 2003. Obesity is considered a "high-risk" factor because obese patients generally have a higher risk for gestational diabetes, preeclampsia,7 and a large fetus. Additionally, obesity results in additional problems during labor including an increased incidence of cesarean section delivery. Secondly, Patient O.C. was diagnosed with gestational diabetes, which occurs in some women during pregnancy. Gestational diabetes can cause the baby to be large or "macrosomic," which in turn can cause complications during delivery. It can also cause an excess amount of amniotic fluid, referred to as polyhydramnios. There is also a higher rate of fetal mortality when gestational diabetes is present. Gestational diabetes can, however, be controlled and, in the case of Patient O.C., it was. Finally, Patient O.C. smoked cigarettes. She smoked both before and during her pregnancy. Smoking reduces oxygenation to the uterus, placenta, and the fetus. This increases the risks of intrauterine birth growth restriction and increases the risk of placental abruption (where the placental sheers off the wall of the uterus) as well. Dr. Alvarado was aware that Patient O.C., due to her weight, the gestational diabetes, and her smoking, was a "high risk" patient. The evidence failed to prove that Dr. Alvarado failed to consider this fact in his treatment of Patient O.C. The Events of August 18, 2003. On August 18, 2003, Patient O.C. noticed that she had begun to discharge mucus with pinkish streaks/dark brown spots. (Admitted Facts). Becoming concerned, she telephoned Advanced, and after speaking with someone at Advanced's answering service, received a telephone call from Dr. Alvarado, who was the "on call" obstetrician at Leesburg Regional Medical Center (hereinafter referred to as "Leesburg Regional") that day. (Admitted Facts). Dr. Alvarado was also the on-call physician for Advanced. Dr. Alvarado had arrived at Leesburg Regional at approximately 6:00 a.m., August 18, 2003, where he remained until sometime after 2:15 a.m., August 19, 2003. (Admitted Facts). Dr. Alvarado spoke with Patient O.C., who advised him of the mucus discharge. When he asked whether she had felt any fetal movement, she indicated that the baby was moving but "not as usual."8 (Admitted Facts). Dr. Alvarado advised her to go to the labor room of Leesburg Regional for a non-stress test.9 (Admitted Facts). Dr. Alvarado contacted the labor room to report that Patient O.C. was to be evaluated and asked that a non-stress test be performed on her and that he be informed of the results. (Admitted Facts). As directed, Patient O.C. presented to the Leesburg Regional maternity unit at approximately 8:05 p.m. (Admitted Facts), after initially reporting to the emergency room. Dr. Alvarado was contacted about Patient O.C. at about 8:30 p.m., at which time he gave a verbal order to place an external fetal heart monitor on Patient O.C. (Admitted Facts). A fetal heart monitor measures the heart beat of a fetus. The measurements are recorded continuously on a fetal heart rate monitor strip. Initially, upon placement of a monitor, a "baseline" rate is determined. The base line rate is the mean heart rate per minute of the fetus measured over approximately a ten-minute interval. A "normal" baseline heart rate will range from 120 beats to 160 beats per minute. Once the baseline heart rate is established, the heart rate of the fetus is monitored for expected variations in the heartbeat rate. It is normal for the heartbeat rate to accelerate and decelerate from the baseline rate over an extended period of time. In addition to monitoring the fetal heartbeat rate, the contractions of the mother are also monitored. When a contraction occurs, it is expected that the fetal heart rate will decelerate abruptly. This deceleration is normal and is considered reassuring if the deceleration abruptly ends in less than 30 seconds after it begins. A primary purpose for monitoring contractions and the fetal heart rate is to give the physician assurances that the fetus is not experiencing hypoxia (lack of oxygen to the brain). While variable decelerations and accelerations in heartbeat are expected and considered reassuring, a "late" deceleration is not. A "late" deceleration is a decline in the heart rate from the baseline which takes place just after the peak of a contraction and lasts for 60 seconds or more. A late deceleration can be an indication of fetal hypoxia if it is followed persistently by other late decelerations and a lack of good variability between such events. Fetal heart rate monitors may be placed externally or internally. An external monitor is placed on the mother's stomach and utilizes Doppler waves which are projected at the fetus and are then interpreted by computer to determine the fetal heart rate. An internal monitor requires that the mother's membrane be ruptured, releasing the amniotic fluid, and that the cervix is dilated at least one or two centimeters. An electrode is then placed directly on the scalp of the fetus. Contractions may also be monitored internally using an intrauterine pressure catheter that records the actual pressure of contractions. Dr. Alvarado's instructions to place an external monitor on Patient O.C. were followed by Ann Willis Wimberly, R.N. Due to Patient O.C.'s size, however, it was difficult to obtain a good reading of the fetal heart rate or Patient O.C.'s contractions. Patient O.C. was also somewhat noncompliant with her care, causing further difficulty obtaining accurate readings. Nurse Wimberly also took and recorded a "history" of Patient O.C., including her weight and the facts that she had gestational diabetes, smoked a pack of cigarettes a day, reported "brownish stuff" coming out of her, and had experienced pelvic pressure that day. Nurse Wimberly performed a vaginal examination of Patient O.C. and reported that she was "closed, thick [sic] minus three, palatable" which means that Patient O.C.'s cervix was not open, she was not thinning out, and the baby was still high up and ballottable, which in turn means there was fluid around the baby. At 8:30 p.m. Dr. Alvarado evaluated Patient O.C. and reviewed the fetal heart monitor strip. (Admitted Facts). The baby's fetal heart rate base line was determined to be between 160 and 170 beats10 per minute. (Admitted Facts). This heart rate was above the normal base line expected for a fetal heart base line rate. At this point, the fetal heart monitor had recorded some accelerations, but no decelerations. Patient O.C. had only been monitored for approximately 10 to 15 minutes at the time Dr. Alvarado reviewed the fetal heart rate monitoring strips. This was, as Dr. Alvarado acknowledged at hearing, an inadequate period of time to get adequate data. At 8:40 p.m., Dr. Alvarado left Patient O.C. to attend to a patient in labor. (Admitted Facts). At this time Patient O.C. was essentially stable and the baby's heart rate was essentially within the base line established upon Dr. Alvarado's initial review of the fetal heart monitor strip. (Admitted Facts). Nurse Wimberly continued to monitor Patient O.C.'s fetal heart rate and found that she was experiencing variable accelerations and decelerations, which were reassuring. At approximately 8:50 p.m., Patient O.C. experienced four decelerations. Between 8:50 p.m. and 10:00 p.m., nothing was recorded following a few decelerations. Dr. Danna was unable to identify the decelerations as "late," in part due to the lack of good contraction information. This period was followed by readings which Dr. Danna described credibly as "very sketchy over the next one [strip panels] and the next one and next one, very sketchy." Transcript, Volume I, Page 148, Lines 8-9. From then until early the next morning, there continued to be what may have been late decelerations, but due to the inadequacy of the data as to Patient O.C.'s contractions, Dr. Danna was unable to state convincingly that late decelerations were in fact taking place. A nitrazine test was performed on Patient O.C. at approximately 10:30 to 10:35 p.m. when Patient O.C. complained of brownish fluid leaking out. A nitrazine test measures the pH level in the vagina. The test was positive. This is an indication that delivery should occur within 24 hours.11 At 11:16 p.m., a nurse called Dr. Alvarado and informed him that the baby was moving well. (Admitted Facts). Patient O.C. had denied any further contractions and asked to go home. (Admitted Facts). The nurse informed Dr. Alvarado of these facts. Dr. Alvarado was attending another patient and asked Patient O.C. to wait for his evaluation before going home. (Admitted Facts). The Events of August 19, 2003. At 12:31, a.m., August 19, 2003, Dr. Alvarado attended Patient O.C. (Admitted Facts). When he entered the room in which Patient O.C. was located, Patient O.C. was sitting on the end of the bed ready to go home. (Admitted Facts). The external fetal heart monitor had been removed and she denied having any contractions. (Admitted Facts). Patient O.C.'s "significant other," however, reported more leaking of fluid. (Admitted Facts). Dr. Alvarado was informed that a second nitrazine test was positive. (Admitted Facts). Dr. Alvarado examined Patient O.C., performing a nitrazine test and reviewed her fetal heart monitor strip. (Admitted Facts). The nitrazine test was again positive. Dr. Alvarado decided to admit Patient O.C. to Leesburg Regional. (Admitted Fact).12 While the results of the external fetal heart monitor were not conclusive, Nurse Wimberly became concerned enough with the results to suggest to Dr. Alvarado that she was seeing decelerations which she characterized as sometimes "variable" and sometimes "late." This conversation took place at approximately 12:50 a.m. Dr. Alvarado disagreed with Nurse Wimberly's characterization of the decelerations as "late." Nurse Wimberly did not insist nor record in her notes that there were late decelerations because of the difficulty she was experiencing getting a good reading from Patient O.C., both of the fetal heartbeat rate and Patient O.C.'s contractions. At 1:02 a.m., Dr. Alvarado was called to attend to another patient. (Admitted Facts). At 1:12 a.m., Patient O.C. was placed back on an external fetal heart monitor. (Admitted Facts). At 1:50 a.m., Dr. Alvarado returned and examined Patient O.C. (Admitted Facts). Nurse Wimberly discussed with Dr. Alvarado the difficulty she was experiencing attempting to monitor the baby's fetal heartbeat rate with an external monitor. Dr. Alvarado agreed that an internal monitor was necessary. Dr. Alvarado artificially ruptured Patient O.C.'s, membrane to place the fetal scalp electrode and intrauterine monitor.13 (Admitted Facts). Although Patient O.C. was not in labor when he ruptured her membrane, Dr. Alvarado's plan was to induce labor at 6:00 a.m. if Patient O.C. did not go into active labor by then. (Admitted Facts). When Dr. Alvarado ruptured Patient O.C.'s membrane, meconium-stained amniotic fluid was noted. (Admitted Facts). Meconium is a bowel movement which occurs in the amniotic sac. The presence of meconium in the amniotic fluid is an indicator that there may be some stress on the part of the fetus. According to Dr. Danna, the presence of meconium: does not necessarily mean you have to rush the patient to the operating room and do a deliver. It depends on how the fetal monitoring strip looks, but it could indicate some stress and your awareness has to be heightened that this is a high risk labor and you need to pay attention to the fetal monitoring strip for evidence of hypoxia. There is also risks of meconium aspiration where the baby aspirates the meconium into the lungs and that could be very serious. Transcript, Volume I, Page 139, Lines 22-25, and Page 140, Lines 1-4. Although there was meconium present, the evidence in this case failed to prove the extent to which its presence was an indication that Patient O.C.'s fetus was in distress at the time Patient O.C.'s membrane was ruptured. The evidence also failed to prove when the bowel movement which the meconium evidenced took place. Dr. Alvarado had, prior to rupturing Patient O.C.'s membrane, performed a vaginal examination and found her to be two and a-half centimeters dilated and to have progressed from thick to 80 percent thinned out. Dr. Alvarado placed an electrode on the baby's scalp to monitor the baby's heart rate and an intrauterine pressure catheter in Patient O.C. to monitor Patient O.C.'s contractions. (Admitted Facts). The intrauterine pressure catheter placement was completed at approximately 2:00 a.m. From that time on, the fetal heart rate monitoring strips were more precise. At 2:15 a.m. Patient O.C. was experiencing contractions every one to three minutes for 60 seconds and the fetal heart rate was 150 to 160. (Admitted Facts). Dr. Alvarado, once the internal fetal heart monitor and the intrauterine pressure catheter were placed, only reviewed the resulting fetal heart monitor strip for approximately 15 minutes. He did so, despite his testimony at hearing that the strip should be monitored for at least an hour. Dr. Alvarado was asked the following questions and gave the following responses in this regard: Q. Okay. Why did you ask them to continue monitoring her? A. Well, you cannot make a judgment with ten-minute tracings. Every patient that goes to the hospital -- even with no concern, nor risk factor, or anything like - - will be monitored for at least one hour. She just arrived. She had only about ten minutes by the time that the nurse got to her and put the monitor on. It was only about ten or fifteen minutes. We needed to know a little bit longer what was going on. Transcript, Volume II, Page 229, Lines 14-23. While this testimony dealt with the initial external monitoring of Patient O.C., the facts in this case proved that, because the initial monitoring of Patient O.C. was problematic and to a large extent unreassuring, and given the fact that she was a high-risk patient, Dr. Alvarado was in error when he assumed that he already had sufficient data to leave Patient O.C. after only approximately 15 minutes of data from the internal monitoring. Dr. Alvarado returned to the Leesburg Regional emergency room at 2:15 a.m. to attend to patients and subsequently left for his home, which is located less than five minutes from the hospital. (Admitted Facts). After Dr. Alvarado left Patient O.C., Nurse Wimberly continued to monitor the fetal heart rate strip. The fetal heart rate continued to be generally the same evidenced by the external monitoring strips. At 2:22 a.m., the baby's fetal heart rate dropped into the 90's for 60 seconds, before returning to the base line. (Admitted Facts). Dr. Alvarado was not notified of this drop. (Admitted Facts). At 2:30 a.m. Patient O.C. complained of pain and Dr. Alvarado was notified. (Admitted Facts). At 2:43 a.m., the fetal heart rate exhibited a clear late deceleration, dropping for approximately 40 seconds. (Admitted Facts). Dr. Alvarado was notified. (Admitted Facts). Nurse Wimberly recognized the decelerations and initiated routine interventions but failed to notify Dr. Alvarado. (Admitted Facts). Between 3:58 a.m. and 4:15 a.m., the chart shows several more fetal heart monitor late decelerations and nurse "fails to notify" Dr. Alvarado of any. (Admitted Facts). The following, while of little relevance, are included in this Recommended Order because they are "Admitted Facts": At 4:20 a.m. Nurse Wimberly left Dr. Alvarado a message on his home phone answering machine that Dr. Hanubal was coming to the Leesburg Memorial to deliver Patient O.C.'s baby.14 Dr. Alvarado was not notified of Patient O.C.'s request that Dr. Hanubal deliver the baby. The nurse informed Dr. Hanubal about the decelerations and he ordered an emergency cesarean section, which was performed at approximately 4:50 a.m. The chart reflects the baby was pronounced dead at 6:40 a.m. Dr. Alvarado does not know what resuscitation efforts were undertaken. Dr. Alvarado arrived in a labor room at 7:00 a.m. for a cesarean, and was surprised with the news and fact that he was never notified. A cesarean is the surgical delivery of an infant through an incision in the mother's abdomen and uterus. The Administrative Complaint. On July 19, 2005, the Department filed an Administrative Complaint in which it alleged that Dr. Alvarado, in his treatment of Patient O.C., had violated Section 458.331(1)(t), Florida Statutes, which requires that a physician practice medicine with "that level of care, skill, and treatment which is recognized by a reasonable prudent similar physician as being acceptable under similar conditions and circumstances . . . ." (hereinafter referred to as the "Standard of Care"). In paragraph 26 of the Administrative Complaint, it has been alleged that Dr. Alvarado violated the Standard of Care by one or more of the following: Failing to accurately diagnose Patient O.C.'s condition; Failing to remain in the hospital after initiating labor by rupturing Patient O.C.'s membranes; Failing to accurately diagnose fetal heart distress; Failing to accurately diagnose [the] risk to [the] fetus when meconium fluid was noted upon rupture of membranes. While Dr. Alvarado has raised an issue as to whether the Administrative Complaint is constitutionally vague, an issue which this forum has no jurisdiction to address,15 he did not request a more definite statement from the Department during this proceeding. Dr. Alvarado's Violation of the Standard of Care. Dr. Alvarado's treatment and care of Patient O.C. as described in this Recommended Order and based upon the credited opinion of Dr. Danna, violated the Standard of Care as alleged in paragraphs 26(a) and (b) of the Administrative Complaint. The evidence failed to prove that Dr. Alvarado's treatment and care of Patient O.C. violated the Standard of Care as alleged in paragraphs 26(c) and (d) of the Administrative Complaint. As to Dr. Alvarado's diagnosis of Patient O.C., in most respects his diagnosis was within the Standard of Care. His Proposed Findings of Facts and Conclusions of Law, paragraphs A1 through A4 accurately describe incidents where his diagnosis of Patient O.C. was adequate. Where Dr. Alvarado violated the Standard of Care is when he failed to adequately reevaluate her condition through the results of the internal fetal heart monitor and the intrauterine pressure catheter. As explained by Dr. Danna, Dr. Alvarado violated the Standard: A. Because of the strip or her fetal heart monitor continued to deteriorate and there was no resolution of her late decelerations. Once he monitored her using the fetal scalp IUPC [intrauterine pressure catheter], it should have been re-evaluated by him soon after that to see if those late decelerations revolved [sic]. Q. How soon after he had applied the IUPC should she have been re-evaluated? A. At least within thirty minutes to an hour. Do you believe that to be the standard of practice with respect to obstetrical patients at this point? A. Yes. Transcript, Volume I, Page 162, Lines 15 through 25. She also stated the following in this regard: I believe that a reasonable physician would have re-evaluated the strip once the internal leads were placed, the scalp lead and the intrauterine pressure catheter, and re-evaluated the strip to see if these issues of non-reassuring surveillance resolved and if they didn't resolve then a cesarean section should have been ordered, especially, since she was remote from delivery. Transcript, Volume I, Page 160, Lines 16 through 22. Dr. Alvarado also failed to meet the Standard of Care when he left Leesburg Memorial as soon after rupturing Patient O.C.'s membrane as he did. This violation is predicated on the same error committed by Dr. Alvarado, which is the basis of his violation of the Standard of Care in his failure to properly diagnose Patient O.C.'s condition. Again, Dr. Alvarado's violated the Standard of Care when he went home from the hospital because he failed to adequately monitor the fetal heart monitoring strip for an adequate period of time after the internal heart monitor was initiated before he did so. Dr. Alvarado's position on this issue misses the mark. Dr. Alvarado has argued that there was no testimony from any expert that a doctor must remain at a hospital after initiating labor by rupturing a patient's membranes. Dr. Alvarado also argued that it is acceptable for a physician to rely upon a trained obstetrical nurse who can notify him of a patient's condition. While these arguments are correct, Dr. Alvarado failed to establish that it was within the Standard of Care to leave a patient in Patient O.C.'s condition without first obtaining adequate fetal heart monitoring data and data from the intrauterine pressure catheter. The evidence failed to prove that Dr. Alvarado violated the Standard of Care by failing to diagnose fetal heart distress. The evidence failed to prove clearly and convincingly that Patient O.C.'s fetus suffered fetal heart distress. Finally, Dr. Alvarado did not violate the Standard of Care by failing to accurately diagnose the risk to Patient O.C.'s baby when he noted meconium fluid upon rupture of Patient O.C.'s membranes. Even the Department's expert agreed. Dr. Danna, when asked whether Dr. Alvarado violated the Standard of Care when he failed "to accurately diagnose the risk to the fetus when meconium fluid was noted upon the rupture of those membranes" answered as follows: "I don’t think that is -- no, I don't think that is the case." Transcript, Volume 1, Page 163, Lines 15 and 16.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine finding that Manuel Alvarado, M.D., has violated Section 458.331(1)(t), Florida Statutes, as described in this Recommended Order; issuing him a letter of concern; requiring that he pay an administrative fine of $5,000.00; placing his license to practice medicine on probation for two years; and requiring that he attend continuing education classes in an amount and of a nature to be determined by the Board. DONE AND ENTERED this 9th day of June, 2006, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 9th day of June, 2006.
The Issue Whether the injury claimed is a birth-related neurological injury and whether obstetrical services were delivered by a participating physician in the course of labor, delivery or resuscitation in the immediate postdelivery period in the hospital.1
Findings Of Fact Petitioners, Rock Pollock, Sr., and Shawna M. Pollock, are Rock Pollock, Jr.'s (Rock, Jr.'s), natural parents. At all times material, Shawna M. Pollock was an obstetric patient of Intervenor, Deanna Doyle-Vallery, M.D., and Deanna Doyle-Vallery, M.D., was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. (Plan) At all times material, Amy Martin, M.D., also was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes, and she provided obstetrical services "in the course of labor, delivery and resuscitation in the immediate postdelivery period in a hospital," as related to this case. Rock, Jr., was born on November 2, 2006. At birth, Rock, Jr., weighed in excess of 2,500 grams. Rock, Jr., was born at Sarasota Memorial Hospital. Sarasota Memorial Hospital is a licensed Florida Hospital located in Sarasota, Florida.9 It is owned and operated by Intervenor Sarasota County Public Hospital District. Coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. On November 1, 2006, Rock, Jr.,'s mother, Shawna M. Pollock, who was in the forty-second week of pregnancy (beyond term), was admitted to Sarasota Memorial Hospital. She had received prenatal care from Dr. Doyle-Vallery and Corcoran, Easterling & Doyle-Vallery, LTD, a predecessor corporation to Gulf Coast Obstetrics and Gynecology, LTD, with which entity Drs. Doyle-Vallery and Martin were associated. At 6:50 p.m., on November 1, 2006, Mrs. Pollock was examined, and her cervix was found to be two centimeters dilated and thick. Dr. Amy Martin ordered Cervadil and Pitocin and signed the obstetrical record. Sarasota Memorial Hospital's progress notes indicate that Mrs. Pollock had previously suffered two miscarriages, but that this pregnancy had been uneventful with ASA therapy. At 8:00 a.m., on November 2, 2006, Rock, Jr.,'s fetal heart rate was noted to be stable; contractions were occurring every 2-3 minutes; and Certified Nurse Midwife Laura Danner, made a progress note that the plan of care would be continued. On November 2, 2006, both the Pitocin and Cervadil were administered. Entries were made on the progress notes by Certified Nurse Midwife Danner at 9:45 a.m., 10:30 a.m., and 12:05 p.m., that the fetal heart rate monitoring was stable; contractions were occurring every 2 to 3 or 2 to 4 minutes; and that, upon consultation with Dr. Amy Martin, the plan of care would be continued. At 1:30 p.m., Certified Nurse Midwife Danner wrote in the progress notes that Mrs. Pollock had been instructed on how and when to push and that Rock, Jr.,'s fetal heart rate was still stable. At 2:00 p.m., the fetal heart rate continued to be stable, and Mrs. Pollock was in labor, pushing every 2-3 contractions, with Pitocin continuing to be administered. Contractions were occurring every 1-1/2 to 2-1/2 minutes. Once again, Nurse Danner noted a continuation of the plan of care. Nurse Danner's progress notes indicate that at 2:30 p.m., there was a stable fetal heart rate with moderate to severe variables with recovery to baseline and contractions every 1-1/2 to 2-1/2 minutes. Mrs. Pollock had stopped pushing; had been in multiple positions; and was currently in the knee- chest position. A possible cesarean section was discussed with Mrs. Pollock in the event labor did not continue to progress. Also discussed was having Mrs. Pollock rest and not push for 30 minutes. The progress notes reflect that Dr. Martin and Nurse Danner consulted and agreed on a plan of care. The progress notes reflect that at 3:00 p.m., November 2, 2006, Mrs. Pollock was complaining of abdominal pain. The fetal heart rate was stable, but there was decrease in the long term variability and severe variables. Contractions were occurring every 1-1/2 to 2-1/2 minutes. Nurse Danner palpated Mrs. Pollock's abdomen, and it was soft between contractions. Because of the non-reassuring fetal heart rate tracing, Nurse Danner again consulted with Dr. Martin, and the decision was made to proceed with a cesarean section. The progress note at that time reflects that Dr. Martin was proceeding to the hospital, so it is assumed that the consultation at that time was by telephone. A note made immediately thereafter at 3:01 p.m., reflects the presence of a fetal bradycardia; that Mrs. Pollock was complaining of severe abdominal pain; and that Mrs. Pollock was being taken to the operating room for a cesarean section. At 3:05 p.m., Mrs. Pollock continued to complain of severe abdominal pain. When her abdomen was palpitated, it was described as "rigid." Rock, Jr.,'s fetal heart rate was decreasing to 40 beats per minute and continuing to decrease to 20 beats per minute. Dr. Martin was again called and was en route to the hospital. Dr. Evelyn Santiago was present at the hospital, and she started a "stat" (immediate) cesarean section. Dr. Santiago performed a primary low cervical transverse cesarean section, and Rock, Jr., was delivered at 3:12 p.m. Thick meconium-stained fluid was noted. Rock, Jr., was in a cephalic, vertex presentation. Upon inspection, Dr. Santiago noted a uterine rupture on the left aspect of the uterus. At 3:24 p.m., Dr. Martin was present and began to assist Dr. Santiago and Certified Nurse Midwife Danner with the cesarean section; Dr. Martin became the primary surgeon for the repair of the uterine incision and uterine rupture. Dr. Martin's operative note states in part: INDICATIONS: The patient is a G4, P1, who was admitted for induction for postdates and did well initially through labor induction. She made it to complete dilation and at that time had reactive fetal heart rate tracing. She began pushing and was noted to have moderate to severe variable decelerations with pushing effort. The patient pushed every other contraction for approximately 1 hour with continued moderate variable decelerations. At this point the patient was turned and allowed to rest for recovery of the infant. The patient with progress to +1 station. [sic] With further pushing the patient continued to have moderate to severe variable decelerations with no further descent and a cesarean section was called. At this point the patient was prepared to be taken to the operating room and she began complaining of severe left lower quadrant and left back pain. This was unable to be controlled with epidural. At this point in time the infant's heart rate dropped into the 60s and then continued down to the 40s. The patient was rushed back to the OR for emergent C-section at this point with fetal heart rate obtained in the OR in the 20s. FINDINGS: Male infant in cephalic presentation. Meconium stained fluid. NICU present at delivery. Apgar's[10] 2, 3, and 3 with weight 8 pounds, 11 ounces. Of note uterus had a large lateral defect with extensive bleeding and area of uterine rupture. Normal ovaries bilaterally. Of note per Dr. Santiago upon entering the peritoneal cavity blood was noted in the abdominal cavity prior to making uterine incision. Rock, Jr., was taken to the neonatal intensive care unit at Sarasota Memorial Hospital and evaluated by Darlene Calhoun, D.O. Spontaneous respirations were noted with some being quite irregular. Dr. Calhoun's impression was: Term male infant at 41 and 2/7 weeks. Perinatal depression. Rule out sepsis. History of methylene tetrahydrofolate reductase deficiency in the mother and questionable factor V Leiden mutation. Respiratory depression. Rule out seizures. Metabolic acidosis. Evaluate for persistent pulmonary hypertension of the newborn. On November 3, 2006, Rock, Jr., was transferred to All Children's Hospital, because of continued seizure activity. Victor McKay, M.D., evaluated Rock, Jr., upon admission. He noted that Rock, Jr., required intubation, had Apgar scores of 2, 3, and 3, and had a cord pH of 6.8. In the Neonatal Intensive Care Unit (NICU), Rock, Jr., was placed on a ventilator, but quickly weaned off. Because of seizure-like activity, a video EEG was ordered, and Rock, Jr., was loaded with Phenobarbital. After evaluating Rock, Jr., Dr. McKay gave an assessment and plan of: Term male infant. Perinatal acidosis. The infant has severe perinatal acidosis with cord pH of 6.8. The acidosis was corrected after birth. The infant has remained on ventilator, is currently weaned down to low ventilator settings and still has CO2 in the 20s. So, the infant will be extubated. The infant has shown no signs of pulmonary hypertension. Neurologically, the infant will be placed on a 24-hour video electroencephalogram. Will continue the Phenobarbital. Obtain a neurology consult with CT scan of the infant. If the CT scan is normal, then the infant may need further imaging at 3-5 days of life. Sepsis. Rule out sepsis. The infant will receive ampicillin and gentamicin pending culture results. Fluid, electrolytes, nutrition. The infant is n.p.o on IV fluids at 60 mL/kg/day. Will follow electrolytes and make adjustments as needed. Maternal methylenetetrahydrofolate reductase.[11] The infant will need further evaluation at a later time. On November 6, 2006, an MRI with and without contrast was performed on Rock, Jr.,'s brain. Radiologist James M. Anderson, M.D., read the films. His findings were as follows: FINDINGS: Sagittal T1, axial diffusion FLAIR T2, coronal FLAIR, coronal T2, coronal 3D T1, axial and coronal postcontrast T1 weighted images were performed. Cerebral and cerebellar volume appear to be normal. In general, the brain appears to be normally formed with no obvious anomalies. T1 weighted images show no migrational disorders. T2 and FLAIR images show no gross areas of hyperintensity. The diffusion images, however, are concerning. There is abnormally restricted diffusion identified in the basal ganglia bilaterally, somewhat asymmetrically, worse on the left than on the right with some asymmetric areas of restricted diffusion extending into the left insula as well as the left occipital and temporal lobes. These findings are suspicious for early infarct or ischemia. Rock, Jr., was discharged from All Children's Hospital on December 12, 2006. The portions of the Discharge Summary for purposes of this case are: DISCHARGE DIAGNOSES: Low Apgar scores. Hypoxic-ischemic encephalopathy. Respiratory distress. Acidosis. Seizure-like behavior. Neonatal encephalopathy. Staphylococcus warneri bacteremia. Severe dysphagia. * * * HISTORY: . . . The estimated gestational age was 41-2/7 weeks. Maternal history included positive MTHFR/positive Leiden mutation determined through genetic counseling . . . The pregnancy was significant for uneventful. The mother took prenatal vitamins, antacids, and aspirin and delivery was significant for fetal bradycardia, low Apgar scoring, and a cord pH of 6.8. Delivery room resuscitation included tactile suctioning, bulb suctioning, deep suctioning, intubation for no respiratory effort. . . . * * * CENTRAL NERVOUS SYSTEM: Phenobarbital was used for questionable seizure-like activity and HIE, and the baby initially had levels into the 40s. At the time of discharge, the December 11, 2006, level was 8.5. Cranial ultrasound was done at birth which was normal. A CT done on day 2 was normal. On November 6, 2006, day 4, an MRI was done showing subtle changes in the basal ganglia on the left occipital temporal lobe with questionable early infarct or ischemia. The region of the pre and post central gyri also have some mild diffuse changes. Followup in 7 to 10 days is recommended. Neurology followed this baby throughout hospitalization. Continuous EEGs were done between November 3, 2006, and November 6, 2006, showing severe, diffuse encephalopathy, multiple cortical and stable areas, and potential for epileptogenicity. On November 9, 2006, there was some improvement in the EEG but there was still noted excessive sharps in the right temporal area. November 27, 2006, was also still abnormal with epileptiform discharger [sic] in the right temporal region, no seizures, but was improved from previously. * * * GENETICS: There were no genetic problems or dysmorphology. On September 10, 2007, when Rock, Jr., was ten months of age, he was evaluated by Dr. Tiffany Day at Shands Hospital at the University of Florida. He presented there for a video EEG and MRI with sedation, to evaluate seizure-like activity. A G-tube had been inserted because he had gastroesophageal reflux. Mr. and Mrs. Pollock described Rock, Jr.,'s seizure activity as jerking movements that had started to become worse four months previously, shortly after Rock, Jr.,'s immunizations. The seizures started to be short in duration, originally just on the left side, affecting the upper extremities bilaterally. Rock, Jr., had been taking Klonopin for the past two to three months, which seemed to significantly reduce the seizures. Other medications included Keppra and Prevacid as well as Valium for hypertonicity. Dr. Day's assessment included the following comment: "This is a 10 month-old Caucasian male with a likely hypoxic eschemic [sic] event at birth as well as a history significant for what sounds like neonatal seizures and gastroesophageal reflux disease." The MRI was performed on September 13, 2007, and the films were read by Ronald Quisling, M.D. His report states:
