The Issue At the hearing, DPR dismissed Count II, alleging a violation of subsection 458.331(1)(h) Florida Statutes. The remaining issues for resolution are whether, as alleged in Counts I, III, IV and V, Dr. Robinson violated subsections 458.331(1)(n),(q), and (t) Florida Statutes by failing to maintain adequate records, by inappropriately prescribing controlled substances, and by failing to properly evaluate and treat multiple medical problems.
Findings Of Fact Jerry Mason Robinson, M.D., has been continually licensed (license number ME 0011811) as a physician in the State of Florida since 1965. He was Board-certified in Family Practice in 1973 and was recertified in 1979 and 1985. He has continually practiced medicine since 1967 in Deltona, Florida, as a sole practitioner in family practice. Patient Fleming Dr. Robinson began treating Jesse Fleming when he came to his office on March 14, 1979, with complaints of being unable to breathe, a feeling of suffocation, and inability to sleep. The patient was found to be suffering from refractory heart failure and was admitted that same day to Seminole Memorial Hospital. Jesse Fleming was discharged as improved on March 23, 1979. His final diagnosis, reflected on the discharge summary, was: refractory heart failure, chronic obstructive pulmonary disease, and Pickwickian's syndrome. The notation "Pickwickian Syndrome" also appeared on the first clinical data sheet, dated March 14, 1979, in Dr. Robinson's office records for this patient. Pickwickian Syndrome, in lay terms, is a condition occurring in obese individuals wherein the abdominal fat presses on the diaphragm, cutting off the breathing and causing sleep at odd and inappropriate times. While Dr. Robinson initially felt that the condition was Pickwickian Syndrome, after the patient lost substantial weight in the hospital, he felt the proper diagnosis should be narcolepsy, a similar condition. He started him in the hospital on Dexedrine tablets, 5 mg. each morning, to increase his alertness. Narcolepsy is a very rare disease characterized by periods where the patient falls asleep uncontrollably many times during the day. The patient also has cataplexy, which is episodes of collapse that occur intermittently with emotional stress, laughing, giggling and fear. Another aspect of narcolepsy is called hypnagogic hallucinations, where an individual has vivid dreams. And the fourth part is called sleep paralysis where the patient cannot move on occasion without being touched. While there is no single test available to unconditionally diagnose a case of narcolepsy, the competent experts agree that a complete history and physical examination is required. The patient should be asked about sleeping patterns and about the symptoms described above. Testing through an electroencephalogram (EEG) and polysomnography is helpful. It is also important to specifically eliminate other causes of somnolence such as medications or other physical conditions, such as thyroid disorders or anemia. Dr. Robinson's records for Jesse Fleming are void of any documentation of the basis for his diagnosis of narcolepsy. The hospital discharge summary of his course in the hospital mentions only that the patient was found to be somnolent and sleeping all the time. He was on Valium in the hospital, 2 mg., 4 times a day to reduce anxiety. Valium is considered to be a central nervous system depressant and has drowsiness as one of its components. There is another notation on the records, on the occasion of an office visit, that the patient fell asleep in the office. This alone, does not indicate a case of narcolepsy. Although Dr. Robinson continued Mr. Fleming on Dexedrine or similar drug, Eskatrol, from the time that he was discharged from the hospital in March 1979, the first notation of a diagnosis of narcolepsy does not appear until March 20, 1981. The term appears intermittently as a diagnosis thereafter, but without description of any symptoms. Dexedrine is a Schedule II controlled substance. It is generally considered one of the amphetamines, a central nervous system stimulant. It has a high liability for habituation, or psychological dependence and overwhelming desire to continue to use the medication. It should not be used in those conditions in which it causes unnecessary stress on the vital organs of the body. It increases the demand of the heart for oxygen and can compromise an already failing heart. It is dangerous to give Dexedrine with thyroid hormones because the hormones make the heart more sensitive to Dexedrine and to the body's own form of Dexedrine, which is adrenalin. If given at all with Digoxin or Digitalis, Dexedrine should be given only with great care because these drugs slow the heart rate, an opposite effect of Dexedrine. In the past amphetamines were widely used to assist in weight control. That use was restricted and the treatment of narcolepsy is one of the remaining legitimate uses. And at least one expert in this proceeding, Jacob Green, M.D. would designate Ritalin, or a similar sympathomimetic drug as the treatment of choice for narcolepsy. In late 1981, Eskatrol was no longer available and Dr. Robinson began prescribing Dexedrine spansules, 15 mg., 200 or 100 at a time, at approximately monthly intervals. The patient has continued on this medication through 1985 and up to the time of the hearing. Around June 1979, Dr. Robinson began to prescribe Synthroid, a thyroid hormone, for Fleming's hypothyroidism at the same time that the patient was taking the amphetamine. On one occasion when the patient complained that he could not sleep, Dalmane, a sleeping medication was prescribed. Dexadrine spansules are a time-release medication which allows the effects of the drug to remain in the body for a longer period, including night time, when sleep is appropriate. Also while Fleming was on Eskatrol or Dexedrine, Dr. Robinson intermittently prescribed Brethine (a stimulant) for his lung problems, and on an on-going basis, Digoxin, for his heart condition. Assuming without the medical record basis to substantiate it, that the narcolepsy diagnosis was accurate, the prescription of Dexedrine to Jesse Fleming was dangerous and inappropriate. The patient records for Fleming are replete with references to irregular heart beats. On some occasions the nurse recorded "very irregular" apical pulses. These irregularities are sometimes a harbinger of heart failure and can occur in, or be exacerbated by, amphetamine therapy, especially in combination with thyroid hormones. In his testimony at hearing, Dr. Robinson stated that when he observed the notation of an irregular pulse he would check the patient himself to assure that the patient was alright. However, these observations are not reflected in the chart, except on one occasion when an EKG was taken and was found to be within normal limits. Good medical record-keeping is an essential aspect of a reasonable prudent physician's practice. Records are the mainstay of communications between physicians and provide a reminder to the physician with a busy practice. The records should provide objective findings and, from the patient, subjective findings. They guide the physician into what he was thinking previously and what needs to be done in the future. In a mobile society, when patients move from doctor to doctor, when specialists are brought in for consultation, when a regular doctor is absent, it is essential that another physician be able to view what has happened in the case from the medical records. Everything that is done needs to be justified in and documented in the records. The absence of a notation leads to the justifiable conclusion that the treatment was not undertaken or the test was not performed. Dr. Robinson failed to maintain adequate records to support his treatment of Jesse Fleming. The bases for his diagnosis of narcolepsy was utterly lacking, as was the basis for the decision to persist in prescribing Dexedrine under dangerous and potentially life-threatening conditions. Patient Kipp Fred Kipp was first examined by Dr. Robinson on June 8, 1978. He came to the office to get some prescriptions for medication that he was already taking. He had angina and a bad cold and was getting ready to return to Ohio, his summer residence. The history given by the patient on that first visit indicated that he had undergone two hip operations and an operation on his cervical spine for fusion. He had two aneurysm operations on his aorta, he had a hemorrhoidectomy and an amputation of his left second finger. At various times in the past he had been treated for severe arthritis in his back and foot, angina, hypertension, diabetes, pneumonia and hepatitis. His medications were Naprosyn for arthritis, Isordil for angina, Diabinese for diabetes, Hydrodiural for his hypertension, Percodan for his pain in his back, and Nitroglycerin for his angina. Dr. Robinson examined the patient and refilled his Naprosyn and Isordil. He told him to come back to see him in the fall when he returned to Florida. Fred Kipp returned to Dr. Robinson's office on December 7, 1978, complaining of chest pain. He was admitted to Seminole Memorial Hospital for pre-infarction angina and was discharged on December 11, 1978, with diagnoses of angina pectoris and coronary artery disease. From December 1978, until present, Dr. Robinson has been Fred Kipp's regular family physician. During this time he has treated him for angina or coronary artery disease, arthritis, hip problems, diabetes, back pain, shingles, vascular problems and chronic severe pain associated with all of these conditions. During this period the patient was hospitalized at least six times, primarily with heart trouble, but also for uncontrolled diabetes and impending gangrene. During a September 1984 admission to Central Florida Regional Hospital (formerly known as Seminole Memorial Hospital), the patient was diagnosed as having severe ankylosing spondylitis, a progressive spinal disease where the vertebrae ultimately become fused. The initial diagnosis was based on the patient's statement of his prior history, but the diagnosis was later confirmed by Dr. Robinson with an x-ray and CAT scan. The condition is very painful. During the course of his treatment of Fred Kipp, Dr. Robinson has kept the patient on Percodan for pain, in addition to his various medications for his multiple problems. Percodan is a Schedule II controlled substance containing oxycodone and aspirin. It is an analgesic with opium-like properties and is useful for moderate to moderately-severe types of pain. Because of the nature of the drug it has a potential for habituation and dependency, particularly when used on a regular long-term basis for chronic, as opposed to acute (temporary) pain. In order to avoid the habituation and dependency, less-addictive modalities should be tried before Percodan is selected as the treatment of choice. Dr. Robinson's office records for Fred Kipp do not reflect the consideration of alternatives. However, Dr. Robinson was aware that alternatives such as non-steroidal and anti- inflammatory agents were tried by consulting physicians, including by Dr. Broderick with Seminole Orthopaedic Associates. Fred Kipp is a very large man, approximately six feet, eight inches tall and weighing from 247 to 281 pounds. The dosages of Percodan prescribed for him by Dr. Robinson were not excessive, given the patient's size and physical problems. He has received between 200 and 300 Percodan per month for the last six years. At no time did he ever claim to have lost his prescription in order to get more drugs. Although the use of a strong narcotic with a chronic pain patient is the last resort of a reasonable, prudent physician, the use of Percodan was necessary and appropriate in Fred Kipp's case to allow him to maintain a reasonable quality of life. This finding is based not upon Dr. Robinson's office records, but rather on the competent expert testimony of his witnesses, who examined the patient and his records, and on the hospital records and consulting physicians' records in this case. Dr. Robinson's office records are deficient as to documented analysis of the patient's pain (subjective and objective observation) and efforts with less addictive modalities. While Dr. Robinson claimed that he requested Fred Kipp's records from his prior treating physician, his own records do not reflect that fact, nor was the attempt repeated when the first request was unproductive.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Board of Medical Examiners enter a final order dismissing the charges against Dr. Santos on the merits and with prejudice. DONE and ENTERED this 30th day of March 1984, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 30th day of March 1984.
The Issue Whether disciplinary action should be taken against Respondent's license to practice osteopathic medicine, license number OS 0001663, based on the alleged violations of Section 459.015(1), Florida Statutes, as set forth in the Administrative Complaint.
Findings Of Fact Respondent is, and has been at all times material hereto, a licensed osteopathic physician in the State of Florida, having been issued license number OS 0001663. The Respondent practices in the Tampa area. R.Y. became a patient of Respondent in 1981 when he was hospitalized at Good Samaritan Hospital for what Respondent diagnosed as typhoid fever, hepatic cirrhosis and portal hypertension. R.Y. remained a patient of Respondent and was again hospitalized at Good Samaritan Hospital in 1982 for congestive heart failure. R.Y. remained a patient of Respondent until his death in 1986. Respondent made some 31 office visits to Respondent between 1982 and 1986, with one cancellation. R.Y. was a functioning alcoholic with cirrhosis of the liver who did not openly discuss his medical condition with his family or others, except Respondent. However, he was regularly employed even after his retirement in 1981. He drank 2 to 6 large beers a day and had smoked a pack and a half of cigarettes for all his adult life. Beginning in the last quarter of 1985, R.Y.'s health began to deteriorate. By Christmas 1985, his family noted weight loss, persistent cough and shortness of breath. Between February 4, 1986 and May 2, 1986, R.Y. was seen by Respondent eleven times. R.Y. initially was seen for an injury to his foot, but complained of anorexia and insomnia. On March 4, 1986, R.Y. began to complain of back pain, possibly wrenched while carrying groceries. He was treated with osteopathic manipulative therapy (OMT), and injections of adrenal-corticotrophic hormone (ACTH), Depo- medrol and Orphenadrine. On March 6, 1986, the pain recurred. R.Y. was again given OMT, ACTH and Robaxin. On March 25, 1986, R.Y. was experiencing pain in the lower dorsal area and treated with OMT. He was sleeping and eating better. On April 15, 1986, R.Y. complained of persistent pain in the mid and lower dorsal area, and his appetite was poor. He was treated with neuroelectric physical therapy and OMT. On April 24, 1986, R.Y.'s daughters accompanied him on a routine visit to Respondent's office. They were concerned that their father's health had been steadily worsening for four months. They wanted to be sure that Respondent was aware of all R.Y.'s symptoms, i.e., pain, accompanied by shortness of breath, no appetite, continual weight loss, chronic diarrhea, and a very persistent cough. R.Y. did not oppose having his daughters come with him. He invited them to come into the examining room with him. One or the other of R.Y.'s daughters was with R.Y. and Respondent at all times during this visit. On April 24, 1986, Respondent found R.Y.'s pain was so severe he could not sit or lie down. He was nauseous with a poor appetite and complained of pain in his lower rib cage on breathing. He was dyspneic and orthopneic. Respondent listened to R.Y.'s chest and ordered an x-ray which revealed fluid in the right chest. Respondent proceeded to perform a thoracentesis on R.Y. in the office, removing 3,000 cc of fluid from his right chest. Thoracentesis is a procedure which is normally performed in a hospital setting or in an emergency room where a collapsed lung, a tension pneumothorax, or hypotension, possible complications of the procedure and can be treated quickly. No intravenous fluid line was established on R.Y. before the procedure. R.Y.'s blood pressure was not monitored before, during or after the thoracentesis. Monitoring of vital signs is essential to assure that the patient does not need acute intervention after this procedure. The fluid removed from R.Y.'s chest was discarded in the sink. Respondent's handwritten records do not indicate that any of the fluid was to be analyzed by a laboratory. Respondent's printed transcription of his records contain the words "To lab." There is no laboratory report in either copy of Respondent's records which would indicate that any of the fluid was analyzed. There was no follow-up x-ray taken by Respondent after the thoracentesis. No pleural biopsy was done. It is below the standard of care for a physician not to take an x-ray after a thoracentesis in order to ascertain whether the fluid has been satisfactorily removed; what, if anything, is revealed when the shadow of the fluid is no longer there and to assure the physician that no pneumothorax has been developed. R.Y. was given Digoxin and Lasix, a diuretic, after the thoracentesis, which could contribute to hypotension. Respondent never suggested hospitalization for R.Y. When R.Y.'s daughter asked where to take him Respondent told her there was nothing they could do in a hospital that couldn't be done at home. Respondent told R.Y.'s daughters to have R.Y. drink "Ensure Plus" and eat a high protein diet, even though R.Y. was nauseated and could not swallow and had chronic diarrhea. At no time during this visit was there an explanation to the patient of the possible causes of the chest effusion. The only explanation by Respondent concerned R.Y.'s congestive heart failure and that he was very sensitive in that regard. Contrary to the statement of Respondent in his letter to the Department of Professional Regulation, R.Y. did not obtain ". . . complete relief from dyspnea and orthnopnea, better sleep, improved appetite and exercise-tolerance" after the thorancentesis. Respondent continued to be very weak with poor appetite, experienced, difficulty breathing and soon could not walk from bed to bathroom. To stabilize and evaluate R.Y. and to pursue a diagnosis, a reasonably prudent similarly situated physician would have hospitalized R.Y. at this time. Respondent made no further investigation into the cause of R.Y.'s unilateral effusion, which can be a symptom of a malignancy, pneumonia, or other unilateral problems. On April 25, 1986, R.Y. returned for a follow-up visit with Respondent. Although he had achieved some measure of relief he was too weak even to sit for long. Respondent prescribed Lasix and Digoxin. On April 28, 1986, R.Y. cancelled his appointment with Respondent. On April 30, Respondent again saw R.Y. His blood pressure was recorded. R.Y. had a cough, nausea and poor appetite. He was given injections of ACTH, Depo-medrol, vitamin B complex, B12 and prescribed Prednisone. On this visit, Mrs. R.Y. accompanied her husband. R.Y. expected that Respondent would hospitalize him and took pajamas, robe, and shaving kit. Mrs. R.Y. asked Respondent to "Please put my husband in the hospital." Respondent stated "they can't do anything for him in the hospital that we can't do right here in the office." R.Y. was unaware that Respondent had no hospital privileges. Respondent never informed R.Y.'s wife or daughters that he had had no hospital privileges since 1983. By May 4, 1986, R.Y.'s condition had so deteriorated that he was too weak to walk and could not void. R.Y. willingly went with his wife and friend William Stephens to the VA hospital in Tampa where he was immediately hospitalized. On May 5, 1986, Mrs. R.Y. had a discussion with Dr. Terry, the attending physician. This was the first time cancer was mentioned. Physical examination of R.Y. at the time of admission to the V.A. hospital revealed a palpable mass in the liver, palpable axillary and submadibular nodes, right pleural effusion and tachicardia. Medical tests showed electrolyte imbalance. X-rays revealed a compression fracture. The diagnosis is "cancer until proven otherwise." R.Y. continued a downhill course, expiring on May 8, 1986. Autopsy revealed wide spread small-cell carcinoma of the right lung with metastatic lesions in the lymph nodes, liver, left adrenal and kidney, ribcage and ribs, posterior body wall and vertebrae. After R.Y.'s death his widow retained Mr. Don Smith, attorney who obtained a copy of R.Y.'s medical records from Respondent's office. This copy of Respondent's medical records was included with Mrs. R.Y.'s complaint when sent to the Department of Professional Regulation on March 24, 1988. When the Department of Professional Regulation subpoenaed the medical records of R.Y. from Respondent, he could produce only the x-rays taken on April 24, 1986 and the records of R.Y.'s hospitalization in 1981 and 1982 at Good Samaritan Hospital, but not his own office records. On July 21, 1988, a copy of the records obtained from Mrs. R.Y. was sent to Respondent with a request to type or print a legible version of those records. On August 22, 1988, the Department of Professional Regulation received Respondent's printed transcription of his medical records along with Respondent's letter of explanation of his handling of R.Y.'s case. Comparison of Petitioner's Exhibit 2 with Petitioner's Exhibit 4 reveals that Respondent has added on his transcription: on March 4, 1986 "Note - x-ray declined" on March 25, 1985 "(unchanged) Pat declined further investig." on April 24, 1986 "to LAB" on April 25, 1986 "Note - Pat. declined further investig. because of improvement; A.M.A." Comparison of Petitioner's Exhibit 2 with Petitioner's Exhibit 4 reveal that Petitioner has omitted to transcribe: Call in prescriptions on Feb. 19, 1986 Mar. 4, 1986 Mar. 14, 1986 Mar. 18, 1986 Apr. 1, 1986 Diagnosis on Feb. 24, 1986 "Dx ASHC c atrial fibrillation peripheral vasc. insufficiency" Mar. 4, 1986 "Dx acute costovertebral subluxations 6th-9th dorsal myositis ASHC c atrial fibrillation CHF Periph. vascular dis." Mar. 6, 1986 "Dx - as above" Mar. 25, 1986 "Dx - as above" Apr. 24, 1986 "Dx CHF ASHD c large pleural effusion" Apr. 25, 1986 "Dx - CHF, improved" May 2, 1986 "Dx CHF, controlled ASHC c artial fibrillation malnutrition" It is improper for a physician to alter a medical record. Respondent testified that he deleted the diagnosis, as he only put them down for insurance purposes and he really didn't think they were important. Respondent admitted he added notations to his printed transcription of his medical records. There is no indication in Respondent's written records that R.Y. ever refused any medical tests, therapy, hospitalization, or was otherwise a non- compliant patient. Respondent's records reveal liver profile tests, an EKG, electrolyte levels and other tests, all in 1983 or before. On February 5, 1986, Respondent performed a blood sugar test on Respondent. Respondent's written records show only one appointment not kept by R.Y. R.Y.'s wife, daughters and lifelong friend all characterize him as being very respectful to all authority figures, and a person who would cooperate with and obey the orders of his physician. He liked and respected Respondent. R.Y. even periodically attempted to cut back his long addictions to alcohol and tobacco and increase his physical exercise in response to Respondent's orders. In the spring of 1986, R.Y. became increasingly frustrated and depressed because he was not getting any better but becoming weaker and his pain persisted. Respondent routinely treated R.Y. with diuretics but he had not monitored R.Y.'s electrolyte status since February 9, 1983. Respondent routinely gave R.Y. injections of testosterone. There is no indication that R.Y.'s testoterone levels were ever determined nor any reason given in Respondent's records for administering testosterone, which could contribute to fluid retention in a patient with a history of heart failure and organic heart disease. Respondent stated, in his letter to the Department of Professional Regulation investigator that at no time did ". . . this patient ever present with . . . inappropriate hormonal activity." Respondent gave R.Y. Erythromycin, an antibiotic which can cause or contribute to hepatic dysfunction, even though R.Y. had cirrhosis of the liver, without indicating in his medical records his reasons for doing so. Respondent's blood pressure had been documented in 1985 and before, but was not taken again until April 30, 1986. Respondent routinely gave R.Y. Digoxin without monitoring R.Y.'s Digoxin or electrolyte levels or indicating in his records his reasons for doing so. Respondent failed to follow consistently R.Y.'s blood pressure, which is an effective way of monitoring a patient's cardiac status. Respondent routinely administered ACTH, Depomedrol and prednisone to R.Y. but did not justify their use in his medical records. There is no indication in Respondent's records that he considered an arteriogram when R.Y. had a badly infected foot. There is no documentation in Respondent's medical records that he ever considered a malignancy as a differential diagnosis in R.Y.'s case. In Respondent's written medical records there is no indication that he ever varied from his original diagnosis of Arteriosclerotic Heart Disease (ASHD) and Congestive Heart Failure (CHF). In Respondent's printed transcription of his medical records he has omitted any reference to his diagnosis of R.Y.'s condition. R.Y.'s weight has been documented in 1983 but was not recorded again in Respondent's medical records until April 30, 1986, although R.Y. had been losing weight for at least five months. Respondent undertook no investigation as to the cause of R.Y.'s weight loss, other than noting "malnutrition" on April 2, 1986, in his written medical records, nor any steps taken to correct it. Respondent did not take an x-ray of R.Y. until April 24, the date of the thorancentesis, even though R.Y. had been complaining of his back pain for six weeks. There is no documentation in Respondent's medical records that he considered the unilateral chest effusion significant or pursued any other diagnosis other than congestive heart failure. There is no documentation in Respondent's medical records that he ever performed any tests on R.Y. for cancer. When R.Y.'s daughters met with Respondent to discuss their father's treatment Respondent stated that he had run several tests for cancer and they all came back negative; that "I turned him inside out and could find no evidence of cancer in him." The only tests performed on R.Y. in the last year of his life were the chest x-ray of April 24, 1986 and a blood sugar on February 5, 1986. Although Respondent repeatedly examined R.Y.'s liver and noted it to be enlarged, his records do not reflect that he was aware of the large mass present by palpation on Respondent's admission to the VA hospital. There is no indication in the medical records that Respondent ever checked R.Y.'s lymph nodes, although auxiliary nodes were palpable on Respondent's admission to the VA hospital. The purpose of a physician's accurate and complete medical record is to assist the physician to recall accurately his prior treatment and treatment rationale, to provide continuity of care should another physician be called in to provide care for the patient, and to protect the physician. The medical records of Respondent reflect what he did to R.Y. but do not justify the course of treatment he followed. Respondent's statement, in his letter to the Department of Professional Regulation, that "at no time did this pulmonary neoplasm such as persistent cough, hemoptysis, coughing up blood, wheezing, hoarseness, persistent chest pain, adenopathy, irreversible dyspnea, shortness of breath, inappropriate hormonal activity, etc." cannot be reconciled with Respondent's own medical records, the testimony of R.Y.'s wife and daughters or the medical records of the VA hospital. Respondent, in his letter to the Department of Professional Regulation, never mentioned a "contract" between himself and R.Y. not to test, investigate, treat, document, or confer with R.Y.'s family about his condition. Even if palliation of R.Y. was Respondent's only consideration, an accurate diagnosis would aid in rendering the patient more comfortable. Respondent failed to practice osteopathic medicine with that level of care, skill and treatment recognized as being acceptable under similar conditions and circumstances by a reasonably prudent similar osteopathic physician.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Respondent be found guilty of violating Sections 459.015(1)(y) and (p), Florida Statutes. As punishment therefore, Respondent should pay a fine of $6,000.00 and his license to practice osteopathic medicine in the state of Florida should be suspended for a period of two years, followed by two years probation, upon such reasonable conditions as the Board may require. RECOMMENDED this 26th day of April, 1991, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4701 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact: Accepted in substance: Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29(in part), 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 46, 47, 48, 50, 53(in part), 54, 55 56, 57, 58, 59(in part), 60, 61, 62(in part), 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89(in part). Rejected as hearsay or irrelevant: Paragraphs 45, 49, 51, 52, 53(in part), 59(in part), 62(in part), 89(in part). Respondent's Proposed Findings of Fact: Accepted in substance: Paragraphs 1, 2(in part), 3(e), 3(f)(in part), 3(g), 3(i). Rejected as not supported by evidence: Paragraphs 2(in part), 3, 3(a), 3(d), 3(f)(in part), 3(h). Rejected as argument or conclusions of law: Paragraphs 3(a), 3(b), 3(c), 3(d), 3(i). COPIES FURNISHED: Mary B. Radkins, Esquire Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 John R. Feegel, Esquire John Sabella, Jr., Esquire 401 South Albany Avenue Tampa, Florida 33606 Bill Buckhalt, Executive Director Board of Osteopathic Medical Examiners Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack L. McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The Administrative Complaint, dated January 22, 1987, alleges that Marvin Lowenhardt violated Section 461.013(1)(t), F.S., relating to gross or repeated malpractice or failure to practice podiatry at a level of care, skill and treatment recognized by a reasonably prudent podiatrist as being acceptable under similar conditions and circumstances. The complaint bases this allegation on the further allegation that Dr. Lowenhardt failed to take more than one X-ray of a patient, Herman Day, and failed to properly diagnose that patient's condition. The issue for determination is whether the violation occurred and, if so, what discipline is appropriate.
Findings Of Fact Marvin E. Lowenhardt is a licensed podiatrist with Florida license number PO 0000775. He has practiced in the State of Florida since 1982, and is currently located at 2087 Sarno Road, in Melbourne, Florida. Herman Day, visited Dr. Lowenhardt on April 30, 1986, with a complaint of swelling and pain in his right ankle. He told Dr. Lowenhardt that he had hit his heel on a dresser about 10 days prior to the visit. Dr. Lowenhardt did not observe any swelling. He took a single X-ray, lateral view of the ankle, and applied a compression bandage with an Unna boot, Gelo cast (a bandage impregnated with zinc oxide which hardens, but does not get rigid). He gave the patient a follow-up appointment on May 5th. Mr. Day appeared for the appointment, but left after a short while because no one was at the office and he had another appointment. The receptionist, who was new, had arrived late to the office to open it and called Mr. Day to apologize. He was irate and refused to make another appointment. On May 26, 1986, Herman Day visited his regular physician, John Viso, M.D., still complaining of trouble with his right ankle. He told Dr. Viso that he had twisted his ankle while strolling on the beach, and that he had been to see Dr. Lowenhardt. He also said he removed the cast himself after about six days. Dr. Viso diagnosed the condition as an old sprain, but he wanted to rule out an old fracture and referred Mr. Day to another physician with X-ray equipment. That physician, Briant Moyles, D.P.M., saw the patient on May 27, 1986. The complaint was pain and swelling in the right ankle due to a twisted foot six or seven weeks prior to the visit. Dr. Moyles found some swelling at a +2 level, which means clear swelling that dimples to the touch. He took five X- rays and concluded that there was a fracture obliquely through the malleolus (the large bump on the ankle) with no separation of the fragments (a "hairline" fracture). Dr. Moyles applied a compression bandage and told Mr. Day to limit his walking activity. Dr. Moyles could not tell when the fracture occurred and suggested that Mr. Day obtain the X-ray taken earlier by Dr. Lowenhardt. Mr. Day accomplished this, but the X-ray was of such poor quality it was impossible to tell whether or not the fracture existed at the time that Dr. Lowenhardt made his examination. Dr. Lowenhardt conceded to the investigator and at hearing that the X- ray was of poor quality. It is blurred and overexposed. The X-ray has deteriorated since it was originally taken, since it was not developed long enough. The view taken would not have revealed the type of injury suffered by Day. Dr. Lowenhardt also admitted to the investigator that he made a misdiagnosis. However, Dr. Lowenhardt claims that, given the patient's history of injury (hitting his heel), the X-ray was unnecessary. He never explained why the X-ray was taken, but after the investigation he apologized to Mr. Day for the mix up regarding the May 5th appointment and refunded all fees paid for his treatment. The history of injury given to Dr. Lowenhardt was somewhat different from that given to Drs. Viso and Moyles later: he hit his heel, rather than twisted his ankle. According to Dr. Lowenhardt and Dr. Moyles, a follow-up after the first visit was very important to the proper treatment of this patient. Dr. Lowenhardt was not informed of the circumstances of Mr. Day's missed appointment until well after the matter was referred to DPR. Dr. Lowenhardt insists that if he had seen Mr. Day again and had heard the continuing complaint and had seen the swelling, he, too, would have taken more X-rays and would likely have discovered the fracture. Dr. Lowenhardt's treatment still may have been the same, the compression bandage. This was Dr. Moyles' treatment, and is generally the treatment of older fractures. At ten days after an injury Dr. Moyles felt he would have had a choice as to whether to apply a rigid case or the compression bandage. Mr. Day did not testify at hearing and the only competent evidence of what he told Dr. Lowenhardt and what his foot looked like on April 30, 1986, is Dr. Lowenhardt's testimony and his office notes.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That the Administrative Complaint against Marvin E. Lowenhardt be dismissed. DONE and RECOMMENDED this 31st day of August, 1988, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0277 The following constitute my rulings on the parties proposed findings of fact: Petitioner's Proposed Findings Adopted in paragraph #1. Adopted in paragraph #2. Adopted in paragraph #3. 4-6. Adopted in paragraph #7. Adopted in paragraph #5. Adopted in paragraph #6. 9-10. Adopted in paragraph #7. Rejected as irrelevant. It was not established that the circumstances warranted X-rays. Rejected as unsupported by Competent evidence. Respondent's Proposed Findings Adopted in paragraph #1. Adopted in paragraphs #2 and 3, except that the medical history form reflects a complaint of ankle pain. 3-4. Adopted in paragraph #3. Adopted in paragraph #4. Adopted in paragraph #5. Adopted in paragraph #6. Adopted in paragraph #7. Adopted in paragraph #8. Addressed in background statement. COPIES FURNISHED: Robert D. Newell, Esquire Newell & Stahl, P. A. 817 North Gadsden Street Tallahassee, Florida 32303-6313 John A. Baldwin, Esquire Baldwin & Baum, P. A. 7100 South Highway 17-92 Fern Park, Florida 32730 Marcelle Flanagan Executive Director Board of Podiatric Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Lawrence A. Gonzales, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact At all material times, Respondent has been currently licensed as a physician in Florida, holding license ME 0033496. Patient 1 was a 32 year old female who was admitted to Lykes Memorial Hospital on March 24, 1988, due to upper and lower abdominal pain, vomiting, and early signs of dehydration. Respondent placed Patient 1 on intravenous fluids and administered medications to control the vomiting. Patient 1 underwent diagnostic studies, including an upper gastrointestinal series, and received medication for the abdominal pain. After five days of hospitalization and tests, the source of the pain had not yet been identified. However, the lower abdominal pain had ceased, and the upper abdominal pain had lessened considerably. In general, the patient had improved during the hospitalization. At this point, Respondent discharged Patient 1 from the hospital with a final diagnosis of acute gastroenteritis. Respondent directed Patient 1 to return to his office for a follow-up visit. Five or six days after discharge, Patient 1 called Respondent and told him that her symptoms, which she now linked with taking birth control pills, had disappeared. Respondent advised her not to resume taking the pills, but to return to her gynecologist. With respect to Patient 1, Respondent practiced medicine with that level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being unacceptable under similar circumstances. Patient 2 was a 37 year old male who was admitted to Lykes Memorial Hospital on May 9, 1988, after having been found by a relative in a state of semi-consciousness. The admitting diagnosis was a probable overdose of lithium and possibly Thorazine. Respondent treated the drug toxicity during Patient 2's three-day hospitalization. Respondent became increasingly lucid during his hospitalization, and Respondent successfully managed the event of drug toxicity. Respondent tried to elicit from Patient 2 a medical and psychiatric history, but Patient 2 would or could not cooperate. Respondent was unable to identify any relatives or friends of Patient 2, including the person who brought him to the hospital. Respondent could not even find out where Patient 2 obtained the lithium and Thorazine that he was taking. Respondent treated the altered mental status that Patient 2 presented. There was no need during the short period of hospitalization to obtain a psychiatric consultation. Resumption of psychotropic medication so soon after the drug intoxication would have been imprudent. Consistent with the policy of Lykes Memorial Hospital, which has no psychiatrists on staff, Respondent referred Patient 2 to the Hernando County Mental Health Center. He directed Patient 2 not to take lithium or Thorazine until instructed to do so by a psychiatrist or other physician at the mental health center. Respondent and the hospital ensured that Patient 2 got to the mental health center following discharge. With respect to Patient 2, Respondent practiced medicine with that level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being unacceptable under similar circumstances. Patient 3 was a 49 year old male who was admitted to Lykes Memorial Hospital on or about February 5, 1988, with complaints of difficulty breathing. At the time, Patient 3 had been diagnosed with lung cancer that had metastasized to the spine and had undergone maximum radiation therapy. He was paralyzed from the waist down and in the last year of his life. He steadfastly refused all diagnosis or treatment involving radiation. By his own request, Patient 3's standing medical orders were "Do Not Resuscitate." He only wanted to be made comfortable. The acute illness resulting in Patient 3's admission was pulmonary congestion. There is some likelihood that the symptoms of infectious bronchitis with which he presented at time of admission were exacerbated by his chronic obstructive pulmonary disease. There is a possibility that some of Patient 3's discomfort was caused by mucous plugs in the lungs, whose capacity had already been diminished by the other diseases. However, mucous plugs were not affecting Patient 3 at the time of discharge. Respondent discussed with Patient 3 the possibility of cleaning out his lungs with a bronchoscope, but Patient 3 refused. Respondent treated Patient 3's discomfort with oxygen, diuretics, and increased steroids. Patient 3 had been receiving steroids due to a spinal disorder resulting from the cancer. Patient 3 was already receiving bronchodilators at the time of his admission. There is also a possibility that Patient 3 suffered from superior vena cava syndrome in which one or more tumors would block veins of the thorax. However, diagnosis of the condition would have been invasive, and Patient 3 refused such interventions. Treatment of such a condition would likely have required radiation, and Patient 3 would not tolerate additional radiation treatment. Respondent discussed with Patient 3 the possibility of superior vena cava syndrome and the possible treatment, but Patient 3 declined this intervention. Patient 3 received no EKG while in the hospital. The emergency medical services team transporting Patient 3 to the hospital performed a rhythm strip, which provides information about limited cardiac functions. Although Patient 3's potassium levels were slightly below normal at discharge, they had improved during hospitalization. With respect to Patient 3, Respondent practiced medicine with that level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being unacceptable under similar circumstances. Respondent's medical records represent the bare minimum required by law to justify the course of treatment. Matters discussed with Patient 3 were not always recorded. Patient 3's decisions concerning diagnosis and treatment were likewise not always recorded. But, on balance, the medical records adequately documented the course of treatment of Patient 3 while under Respondent's care at the hospital. Patient 4 was a 68 year old male who was admitted to Lykes Memorial Hospital on or about February 14, 1988, with complaints of a persistent cough and some gastric upset. He was suffering from exacerbation of chronic obstructive pulmonary disease. Respondent appropriately treated Patient 4's conditions. Patient 4 experienced problems with certain medications, which interfered with his progress, but he was drinking and eating without difficulty prior to his discharge. X-rays taken at admission and discharge revealed no significant change in Patient 4's condition during his eight-day hospitalization. At discharge, Respondent ordered Patient 4 to return for an office visit in two weeks. Patient 4's condition continued to improve following discharge. With respect to Patient 4, Respondent practiced medicine with that level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being unacceptable under similar circumstances.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Business and Professional Regulation enter a final order dismissing the administrative complaint. ENTERED on October 11, 1993, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on October 11, 1993. APPENDIX Treatment Accorded Proposed Findings of Petitioner 1-5: adopted or adopted in substance. 6: rejected as unsupported by the appropriate weight of the evidence. 7-12: adopted or adopted in substance. 13: rejected as unsupported by the appropriate weight of the evidence. The pain or discomfort had lessened considerably. 14: adopted. 15: rejected as unsupported by the appropriate weight of the evidence. 16-17: rejected as irrelevant and unnecessary. 18: rejected as unsupported by the appropriate weight of the evidence. and 21-23: adopted or adopted in substance. and 24: rejected as unsupported by the appropriate weight of the evidence. 25: adopted except that Respondent and the hospital ensured that the patient was referred to a mental health treatment center as soon as his condition was sufficiently stabilized to allow discharge from the hospital. 26: rejected as unsupported by the appropriate weight of the evidence. 27: adopted or adopted in substance. 28: rejected as unsupported by the appropriate weight of the evidence. The record does not suggest how a psychiatrist would obtain a history from an unwilling patient. 29: adopted with respect to the period of the hospitalization through the point at which the patient could recommence active psychiatric treatment. 30: rejected as unsupported by the appropriate weight of the evidence. Respondent duly referred the patient to an appropriate facility for the treatment of the patient's underlying mental health problems. 31: rejected as recitation of evidence and subordinate. 32: rejected as legal argument and unsupported by the appropriate weight of the evidence. 33-36: adopted or adopted in substance. 37-38: rejected as unsupported by the appropriate weight of the evidence. 39: rejected as subordinate. 40: rejected as unsupported by the appropriate weight of the evidence. 41-43 (through third sentence): adopted or adopted in substance. 43 (fourth sentence): rejected as unsupported by the appropriate weight of the evidence with respect to this patient. 44-48 (first sentence): adopted or adopted in substance. 48 (except first sentence)-50: rejected as irrelevant and subordinate. 51-52 and 54: adopted or adopted in substance. 53: rejected as unsupported by the appropriate weight of the evidence. 55-56: adopted or adopted in substance. 57-59: rejected as unsupported by the appropriate weight of the evidence. Treatment Accorded Proposed Findings of Respondent 1-6: adopted or adopted in substance. 7: rejected as legal argument. 8: rejected as recitation of evidence. 9: rejected as legal argument and recitation of evidence. 10: adopted or adopted in substance. 11: rejected as recitation of evidence. 12: rejected as recitation of evidence and subordinate. 15: adopted or adopted in substance. 16 (first sentence): rejected as legal argument. 16 (second and third sentences): adopted or adopted in substance. (fourth sentence): rejected as recitation of evidence. (first sentence): rejected as legal argument. 17 (second sentence): adopted or adopted in substance. 17 (third sentence)-19 (first sentence): rejected as recitation of evidence. 19 (second sentence): adopted or adopted in substance. 20: rejected as recitation of evidence. 21: rejected as legal argument and recitation of evidence. 22: rejected as legal argument and recitation of evidence. 23: rejected as subordinate. 24: rejected as recitation of evidence. 27: adopted or adopted in substance. 28-31 (second sentence): rejected as legal argument and recitation of evidence. 31 (third sentence): adopted or adopted in substance. 32-34: rejected as legal argument and recitation of evidence. 38: adopted or adopted in substance. 39-43: rejected as legal argument, recitation of evidence, and subordinate. COPIES FURNISHED: Dorothy Faircloth Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Barbara Whalin Makant, Staff Attorney Department of Business and Professional Regulation Northwood Center, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0972 William B. Taylor, IV Macfarlane Ferguson P.O. Box 1531 Tampa, FL 33618
The Issue The issue is whether Respondent failed to practice medicine at the level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances and, if not, the penalty.
Findings Of Fact Respondent is a licensed physician, holding license number ME 0026784. He is Board-certified in radiology. On January 30, 1997, T. D., a 30-year-old female who was eight months pregnant, presented to the emergency room of the Columbia Largo Medical Center complaining of pain in the left flank radiating to the left groin, together with nausea and vomiting. She also reported a prior history of kidney stones. A urologist diagnosed T. D. as suffering from kidney stones and severe hydronephrosis, which is the dilation of the kidney due to an obstruction in the flow of urine. The urologist was unable to pass a stent and catheter by the stones to drain the urine and relieve the pressure on the kidney, so he asked Respondent to perform a left percutaneous nephrostomy. A percutaneous nephrostomy is a procedure in which a physician places a tube through the skin and into the collecting system of the kidney to drain the kidney. The tube remains in place until the obstruction is removed. On February 1, Respondent performed a left percutaneous nephrostomy under local anaesthesia. For guidance in placing the tube, Respondent used ultrasound, rather than ultrasound and a flouroscopy. Respondent has performed 100-150 nephrostomies. As is the common practice, he normally does not rely exclusively ultrasound in guiding the placement of the tube in the kidney. In this case, the urologist asked that he not use a flouroscopy, in deference to the patient's pregnancy and the duration of x-ray exposure in a flouroscopy. Respondent was comfortable doing the procedure in this manner, although he decided that, if he encountered any problems in placement, he would resort to flouroscopy. Respondent proceeded to perform the percutaneous nephrostomy in the morning. As is typical, the radiology technician helped position T. D. on the table for the procedure. T. D.'s advanced pregnancy necessitated a slight adjustment to the normal posture of patients being prepared for this procedure, so T. D. lay slightly more up on her side than is usual. However, this did not change the point of entry chosen by Respondent. And, regardless of her precise position, the location of the spinal canal relative to the kidney relative to the point of entry into the skin remains constant: an imaginary line from the kidney to the spinal canal is perpendicular to an imaginary line from the point of entry to the kidney. The point of entry is on the lower back of the patient. T. D. is thin and her pregnancy did not manifest itself on her back, so the length of tube used by Respondent was relatively short. T. D.'s thin build makes it less likely that Respondent would have placed sufficient excess tube into the patient so as to permit the tube to run from the kidney to the spinal cord. Upon placement of the tube, at least 100 cc of fluid drained through the tube. This is well within the range of urine that would be expected under the circumstances. The color was well within the range of color for urine. The preponderance of the evidence indicates that the fluid was urine and that Respondent had placed the tube correctly in the kidney. At the end of the procedure, T. D. appeared a lot more comfortable. Late in the afternoon, someone called Respondent and told him that the drainage had slowed to a very small amount or nothing at all. This is not uncommon, as moving the patient or over-energetic nurses may accidentally dislodge the stent in the kidney. It is also possible that the tube has rested in a part of the kidney that does not facilitate maximum drainage. Using ultrasound, Respondent confirmed that the tube remained in place in the kidney, although he could not tell whether the stent had come to rest in a narrow place in the kidney or possibly even against a stone. Even with this uncertainty, Respondent still was able to determine that the stent was predominantly in the collecting system. Because T. D. was resting comfortably, she said that she felt fine, her fever was going down, and the hydronephrosis had decreased, Respondent decided to do nothing until after re-examining T. D. the next morning. However, at about 11:00 p.m. or midnight, Respondent, who was visiting a nearby patient, dropped in on T. D. The nurse said that she was fine and her kidney was draining a little better. T. D. also said that she was feeling fine. About three or four hours later, T. D. reported a feeling of some paralysis. Petitioner's expert testified that this was linked to the misplacement of the stent in the spinal canal, but he was unaware that T. D. had undergone a spinal block for the percutaneous nephrostomy and that a problem with the first anaesthetic procedure had necessitated a second. It is more likely that T. D.'s paralysis was in response to the two spinal blocks. At 9:00 a.m. the next day, Respondent returned and examined T. D. He found that she was still doing better, and her urologist was preparing to discharge her from the hospital. She looked better, and her urine flow had improved. He told her to call him if she had any problems, but he never heard from her again or even about her until he learned from the urologist that T. D. had been admitted to another hospital where a radiologist had inserted contrast material into the tube to locate the stent and found it in the spinal canal. The father of the baby picked up T. D. at the Columbia Largo Medical Center. He picked her up out of the wheelchair and placed her in the car. Her condition deteriorated once she got home. A hospital nurse directed the father to change the collection bag, if it filled prior to the visit of the home health care nurse. In the three or four days that T. D. remained at home, he changed the bag several times. He daily checked the site at which the tube entered T. D.'s skin and noticed that it had pulled out a little bit. However, he testified that he did not try to adjust the length of tube inside T. D., nor did he change the setting on the tube, which had "open" and "closed" settings for the pigtail at the end of the tube. The proper setting was closed, as the pigtail is not to be open once the stent has reached its destination in the kidney. On February 5, the father took T. D. to the emergency room of the Columbia St. Petersburg Medical Center, where she presented with complaints of severe back pain. An ultrasound confirmed the presence of kidney stones, whose removal had been deferred until the delivery of the baby. In an effort to locate the end of the tube, a radiologist inserted radiographic contrast dye, which showed that the end of the tube was in the intrathecal space of the spine. A urologist removed the tube. However, T. D. suffered a seizure. Another physician attempted an emergency C-section, but the baby did not live. There are two alternatives to explain how the stent at the end of the tube found its way into the spinal canal. First, Respondent placed it there during the procedure. Second, it migrated from the kidney, where Respondent placed it, to the spinal canal. If not unprecedented, both alternatives are extremely rare. The drainage during the procedure and initial improvement of the distended kidney are consistent with the proper initial placement of the stent. The difficulty of inadvertently turning a relatively short length of tube 90 degrees from the kidney to the spinal canal also militates against a finding that Respondent misinserted the tube. Problems with the first spinal tap may have contributed to some of the complaints, such as paralysis, that T. D. experienced after the procedure. Although unlikely, the migration alternative would be consistent with well-intended, but incorrect, attempts by the baby's father or a home health care nurse to ensure that the tube did not travel too far in or our of the point of entry. Migration would be facilitated if either the father or nurse misread the "open" and "closed" settings and turned to "open," in the hope of improving drainage, when such a setting opens the pigtail, which would increase the possibility that the stent could migrate into the spinal canal. In a case requiring proof that is clear and convincing, it is impossible to find that Petitioner has adequately proved that Respondent misinserted the tube during the procedure. Likewise, the evidence is not clear and convincing that Respondent should have recognized at anytime prior to T. D.'s discharge from the Columbia Largo Medical Center that something was wrong with the procedure that he had performed or that he needed to confirm by x-ray the location of the stent at the end of the tube.
Recommendation It is RECOMMENDED that the Board of Medicine enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 2nd day of August, 1999, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1999. COPIES FURNISHED: Britt Thomas, Senior Attorney Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 William B. Taylor, IV Macfarlane, Ferguson & McMullen Post Office Box 1531 Tampa, Florida 33601-1531 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Tanya Williams, Executive Director Board of Medicine Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether, as alleged in the administrative complaints, disciplinary action should be taken against Respondent's license to practice as a physician, based on separate violations of the following statutes for each patient as indicated below: DOAH Case No. 97-0337 Patient Statute T. D. 458.331(1)(g), 458.331(1)(t) F. R.-1 458.331(1)(g), 458.331(1)(m), 458.331(1)(t) S. M. 458.331(1)(g), 458.331(1)(t) F. R.-2 458.331(1)(g), 458.331(1)(m), 458.331(1)(t) T. M. 458.331(1)(g), 458.331(1)(t), 766.411 L. F. 458.329, 458.331(1)(j), 458.331(1)(m), 458.331(1)(t), 458.331)1)(x) C. G. 458.331(1)(k), 458.331(12)(m), 458.331(1)(n), 458.331(1)(t) DOAH Case No. 97-0338 J. S. 458.331(1)(m), 458.331(1)(q), 458.331(1)(t).
Findings Of Fact Based on the evidence presented in this proceeding, the following facts were found: Respondent is, and has been at all times material hereto, a licensed physician, having been issued license number ME 0056554 by the State of Florida. The Respondent was licensed in Florida in 1989. Prior to his licensure in Florida, he underwent residency training in OB/GYN at the State University of New York in New York City and St. Agnes Hospital in Baltimore, Maryland. Following his residency the Respondent performed a two-year fellowship in perinatology at the State University of New York in Syracuse. Patient J. S. On December 10, 1992, Patient J. S., a 19 year-old female, presented to Respondent for evaluation and medical care concerning her pregnancy. The patient was transferred from Orlando Birthing Center where she had her entire prenatal care. Upon presentation, Patient J. S. was at 42 weeks gestation. After examination in Respondent's office, Respondent subsequently made arrangement for admittance to Princeton Hospital for induction and delivery the following day. On December 11, 1992, at approximately 6:45 a.m., Patient J. S. was admitted to Princeton Hospital. At approximately 11:30 a.m., Pitocin, a legend drug, was administered by the staff as directed by Respondent. Pitocin, a derivative of the pituitary gland, is a commonly used substance to stimulate the uterus to contract. However, it is not risk free and must be used carefully. If the muscle is over-stimulated causing too much contraction, there can be interference with the blood supply to the placenta or it can cause the uterus to rupture. The use of Pitocin must be carefully monitored. Variability and reactivity of the fetal tracing was within normal limits at that time. At approximately 5:30 p.m., on December 11, 1992, Patient J. S.'s membranes were artificially ruptured and an internal fetal scalp monitor was placed. At approximately 7:30 p.m., the nursing assessment revealed that J. S. was 2 centimeters (cm) dilated, 70 percent effaced, and at minus 2 station. At approximately 10:10 p.m., Patient J. S. experienced a deceleration in the heart rate. At approximately 10:35 p.m., the patient experienced two more decelerations indicative of fetal distress. This resulted in the nurse on duty turning off the Pitocin. A vaginal examination revealed that Patient J. S. was still 2cm dilated, 70 percent effaced with the baby at a minus 2 station though the Pitocin had been running continuously for approximately 11 hours. During this period the Respondent was not on the premises. At approximately 11:50 p.m., Pitocin was re-initiated, and variable and late decelerations were again noted. Respondent was notified at approximately 1:10 a.m. and no new orders were given. Patient J. S.'s Pitocin was subsequently increased. Following the increase of Pitocin, Patient J. S. suffered an episode of variable decelerations which lasted approximately three minutes. The fetal heart rate was noted to be 64 beats per minute. Respondent was notified and Patient J. S.'s Pitocin was subsequently discontinued. However, Patient J. S. continued to suffer episodes of severe variable and late decelerations. In the early morning hours of December 12, 1992, Patient J. S.'s uterine contractions increased followed by late decelerations. Pursuant to Respondent's orders, Pitocin was restarted at 9:30 a.m. At approximately 10:00 a.m., Respondent arrived at the hospital. By approximately 1:45 p.m., poor variability was noted. At approximately 2:00 p.m., Patient J. S.'s fetal heart rate became unstable and decelerations became more profound. Evaluation revealed that the fetal heart tracing showed a distress pattern with repeated episodes of bradycardia and moderate to severe variable deceleration while the station of the baby never proceeded beyond minus 1 station. Respondent subsequently increased Pitocin. Despite poor fetal tracing, Respondent indicated that he intended a vaginal delivery. Patient J. S. was given an epidural with a bolus at approximately 8:00 p.m. At approximately 9:13 p.m., following four hours of full dilation, Patient J. S. was transferred to Labor and Delivery for a trial forceps set-up. Respondent applied Tucker/McLean forceps to the fetal head. At this time, fetal heart rate tracing was noted to be 80-90 beats per minute. Respondent subsequently determined that the infant could not be delivered and a Cesarean section was performed approximately 40 minutes later. The delay in delivery was the result of the need to wait for the surgical assistant to arrive, who was on-call, and for the anesthesia to take effect before he could operate. The infant was delivered with visible forcep marks including a skin lesion. The infant appeared to be emaciated and also displayed behavior indicative of a seizure shortly after delivery. A subsequent CT Scan revealed a subdural hemorrhage. The infant was later diagnosed as suffering from right facial nerve paralysis. Respondent failed to practice medicine within the acceptable level of care in that Respondent failed to appropriately monitor Patient J. S.'s progress during labor. Respondent failed to pursue the appropriate plan of treatment for Patient J. S. Patient J. S.'s poor response to Respondent's initial attempts to initiate labor indicated that Respondent should have pursued an alternative plan of treatment. Respondent failed to practice medicine within the acceptable level of care by failing to proceed to the hospital to evaluate Patient J. S.'s condition following the episode of bradycardia on the evening of on or about December 11, 1992. Respondent failed to practice medicine within the acceptable level of care by allowing Patient J. S. to continue in labor prior to the delivery of the infant given that the infant continued to suffer from unstable and variable heart rates. Respondent failed to practice medicine within the acceptable level of care by delaying delivery approximately four hours following full dilation. Respondent failed to practice medicine within the acceptable level of care by failing to appropriately apply forceps in attempts to deliver the infant. Respondent failed to maintain medical records which justified his course of treatment for Patient J. S. Respondent failed to appropriately utilize Pitocin. The continued usage of Pitocin following initial attempts to induce labor was inappropriate given Patient J. S.'s failure to progress during labor. Patient T. D. On or about August 24, 1992, Patient T. D., an 18 year- old female, presented to Respondent complaining of vaginal and abdominal pain during the previous two days. Respondent conducted a pelvic examination. Respondent did not observe vaginal bleeding. Respondent ordered the performance of an obstetrics ultrasound which revealed a viable 15-week intrauterine pregnancy. Respondent did not perform further tests to determine if Patient T. D. was experiencing premature labor. Patient T. D. was sent home and directed to go to the hospital if bleeding began. Later that evening, Patient T. D. presented to Princeton Hospital at which time she aborted. On August 26, 1992, Patient T. D. returned to Respondent for evaluation. Respondent performed an ultrasound and prescribed Methergine for bleeding. Patient T. D. presented with indications of premature labor on August 24, 1992. Respondent did not appropriately evaluate Patient T. D. for premature labor. Respondent failed to appropriately diagnose Patient T. D.'s condition or failed to pursue the appropriate plan of treatment. Patient F. R.-1 On September 20, 1992, Patient F. R.-1, a 38 year-old female, was hospitalized for abdominal pain and vaginal bleeding following a positive pregnancy test conducted at the hospital emergency room. During the hospitalization, Patient F. R.-1's, levels of human chorionic gonadotropin (HCG) declined, and she underwent a pelvic ultrasound. The test indicated that the patient had a non-viable pregnancy. Following her release from the hospital, on or about September 23, 1992, Patient F. R.-1, presented to Respondent with abdominal pain and bleeding and a history of a tubal ligation and non-viable pregnancy. Respondent performed a pelvic examination and asked her to return if the symptoms persisted. On or about October 8, 1992, Patient F. R.-1 presented to Respondent with the same symptoms, at which time Respondent initiated Patient F. R.-1 on Provera and Estrace. On or about October 15, 1992, Patient F. R.-1 presented to Respondent with irregular bleeding and abdominal discomfort. Patient F. R.-1 was advised to return in two weeks for evaluation. On or about October 29, 1992, Patient F. R.-1 returned to Respondent with continued complaints of abdominal pain. Respondent performed a pelvic ultrasound on Patient F. R.-1 which revealed normal follicular cysts in the ovaries. While treating Patient F. R.-1, Respondent failed to evaluate her HCG levels. Declining levels of HCG indicate that Patient F. R.-1 suffered an early miscarriage. Respondent failed to appropriately assess Patient F. R.-1's condition, failed to diagnose a probable early miscarriage, and failed to accurately observe the contents of the uterine cavity. Respondent failed to attain a conclusive diagnosis of Patient F. R.-1's condition. Respondent inappropriately treated Patient F. R.-1 with Provera and Estrace (hormones). The prescribing of hormones following an abortion is below the standard of care. Respondent failed to maintain medical records which justified his plan of treatment for Patient F. R.-1. Patient S. M. On or about July 13, 1992, Patient S. M., a 31 year-old female, presented to Respondent with complaints of pain and cramps. Patient S. M. presented with a history of two Cesarean sections, a tubal ligation, and an appendectomy. Patient S. M. presented subsequent to the performance of a pelvic sonogram, which suggested a small fibroid in the uterus. The sonogram was performed by another physician. On or about July 13, 1992, Respondent performed a second sonogram, and diagnosed multi-cystic ovaries and heavy menses. Respondent noted that Patient S. M.'s pelvic examination was normal. In the course of the office visit, Respondent scheduled M. for an exploratory laparotomy. On or about August 5, 1992, Patient S. M. presented to Princeton Hospital for the performance of an exploratory laparotomy, a lysis of adhesions, and a bilateral wedge resection of the ovaries with repair of the ovaries by chromic suture. Respondent performed the procedure. Following the operation, pathology report revealed normal ovaries. On or about July 13, 1992, Respondent did not misdiagnose Patient S. M.'s condition or fail to appropriately assess her complaints. Respondent failed to appropriately perform the surgical procedure on or about August 5, 1992. The repair of the ovaries by chromic suture is inappropriate for 1992 surgical techniques and will ensure the formation of adhesions post-operatively. Patient F. R.-2 On or about July 3, 1992, Patient F. R.-2, a 37 year- old female, presented to Respondent for the performance of a gynecologic examination. Respondent performed a normal pelvic examination. Respondent's examination revealed heavy menses, and he diagnosed yeast vaginitis and pelvic pain. Patient F. R.-2 presented with a history of several operations on her kidneys and gallbladder, an appendectomy, and a tubal ligation. Approximately six weeks later, Patient F. R.-2 returned to Respondent for the performance of a pelvic sonogram which revealed a single cyst on one ovary, and several cysts on the other ovary. Respondent subsequently scheduled Patient F. R.-2 for the performance of a wedge resection of the ovaries. On or about September 23, 1992, Patient F. R.-2 presented to Princeton Hospital for the performance of a bilateral wedge resection of the ovaries with repair of the ovaries by chromic suture, and lysis of minimal pelvic adhesions. The post-operative pathology report revealed sections of normal ovaries. Respondent did not appropriately diagnose, assess, and treat Patient F. R.-2's condition. Respondent failed to appropriately perform the surgical procedure on or about September 23, 1992. The repair of ovaries by chromic suture is inappropriate for 1992 surgical techniques, and will ensure the formation of adhesions post-operatively. Respondent failed to maintain medical records which justify his course of treatment for Patient F. R.-2. Patient T. M. On or about July 20, 1992, Patient T. M. presented Respondent with a complaint of irregular bleeding and pain. Respondent performed a pelvic examination of the patient and noted that Patient T. M. was taking birth control pills. On or about July 28, 1992, Patient T. M. returned to Respondent with continued abdominal and pelvic pain. In addition to his examination, Respondent performed an office ultrasound. Respondent made a diagnosis of polycystic ovarian disease. He also treated Patient T. M. for a urinary tract infection. On or about July 29, 1992, Respondent performed a second sonogram and noted no change in the pelvic cysts. Following the performance of the second sonogram, Respondent scheduled Patient T. M. for a wedge resection of the ovaries. On or about July 31, 1992, Respondent admitted Patient M. to Princeton Hospital for the performance of a wedge resection of the ovaries. The post-operative pathology report indicated that the removed portion of the ovaries were normal. Respondent failed to appropriately diagnose, assess, and treat patient T. M.'s condition. Respondent failed to attain a conclusive diagnosis of Patient T. M.'s condition. On or about July 31, 1992, Respondent inappropriately performed a surgical procedure on Patient T. M., which was not indicated, given that her ovaries were normal and some other reason was the likely cause of her bleeding. Respondent failed to appropriately perform the surgical procedure on or about July 31, 1992. The surgical techniques utilized by Respondent were inappropriate in that Respondent should have used a non-reactive suture. Respondent failed to maintain medical records which justify his course of treatment for Patient T. M. Patient L. F. On or about Friday, May 7, 1993, Patient L. F. was hired to work for Respondent as an insurance clerk. On or about Monday, May 10, 1993, Patient L. F. Reported for work at Respondent's office. Patient L. F. was agitated and nervous and complained of stomach pain. Patient L. F. left the office for the day around noon. On or about May 11, 1993, Patient L. F.'s second day of employment, L. F. reported to work, but went home at the beginning of the day complaining of stomach problems. She later reported back to work at approximately 12:15 p.m. Patient L. F.'s testimony that after she returned to work, Respondent inquired into how Patient L. F. was feeling; that Respondent invited Patient L. F. into an examination room for the purpose of performing an examination; that during the examination, Respondent touched Patient L. F.'s vaginal area with an ungloved finger; that Respondent placed his finger or fingers on L. F.'s genitalia area and started rubbing that area; that Respondent placed his palm on L. F.'s breast, then rubbed the side of her face with his knuckles, and told her how pretty she was; and that there was no other female present during the examination is not credible. On May 11, 1993, Respondent was in his office seeing patients until approximately 12:30 p.m. Shortly thereafter, he left the office and traveled to Princeton Hospital to do rounds. Respondent arrived in a Patient Lightfritz's room at approximately 1:00 p.m., and then examined at least two other patients. He then returned to the office, arriving shortly after 2:00 p.m.; Respondent began seeing patients for the remainder of the afternoon. Patient L. F. remained on the job for the remainder of the afternoon and left for the day at approximately 5:30 p.m. She did not return to work the next day, or thereafter. Respondent did not perform a physical exam of L. F. and she was, therefore, not a patient of Respondent. Patient C. G. On or about May 12, 1993, Patient C. G., a 29 year-old female, presented to Respondent with complaints of a backache and vaginal discharge. Respondent conducted an examination of Patient C. G., including a pelvic sonogram. Following the examination, Respondent administered an injection of Depo-Provera to the patient. Respondent contemporaneously prepared medical records on Patient C. G. justifying the course of treatment.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that in regard to DOAH Case No. 97-0337, Respondent be found guilty on Counts One, Two, Three, Four, Five, Six, Seven, Eight, Nine, Ten, Eleven, Twelve, Thirteen, and, it is RECOMMENDED that Respondent be found not guilty on Counts Fourteen, Fifteen, Sixteen, Seventeen, Eighteen, Nineteen, Twenty, and Twenty-one; and, it is RECOMMENDED that, in regard to DOAH Case No. 97-0338, Respondent be found guilty on Counts One, Two, and Three; and, it is further RECOMMENDED that the Respondent shall have his license to practice as a physician suspended for a period of one year; pay a civil penalty of $10,000, plus the costs of this prosecution; and the suspension be followed by a two-year period of probation, under such reasonable terms and conditions as the Board may require, including continuing medical education and evaluation. DONE AND RECOMMENDED this 1st day of April, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 1st day of April, 1998. COPIES FURNISHED: Gabriel Mazzeo, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Richard A. Simon, Esquire Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A. 201 East Pine Street 15th Floor Orlando, Florida 32801 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700 Pete Peterson, General Counsel Department of Health 1317 Winewood Boulevard Building 6, Room 102-E Tallahassee, Florida 32399-0700 Dr. Marm Harris, Executive Director Department of Health Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
