Findings Of Fact Dr. Gans is a chiropractor licensed in Florida on the basis of examination. Dr. Gans prepared and filed an application for examination and licensure with the Florida State Board of Chiropractic Examiners. Dr. Gans answered the question on the application, "Do you have a chiropractic license in any state?" by stating: "Ohio - Mechanotherapy." The Ohio authorities recognized several professions whose functions would be included under the practice of chiropractic in Florida. Mechanotherapy generally would be limited to the practice of manipulation only. Dr. Gans was licensed in Ohio as a mechanotherapist. Dr. Gans answered the question on the application, "Have you ever been refused licensure in any state?" by stating, "No." Dr. Gans had applied for, taken, and failed the Ohio chiropractic examination whereupon he was not issued a license as a chiropractor by the State of Ohio. Dr. Gans was eligible to reapply to take the Ohio examination. At the time of his application to Florida, Dr. Gans had appealed the determination by the Ohio authorities that he had failed the Ohio examination.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida State Board of Chiropractic Examiners revoke the license of Ray E. Gans. DONE AND ORDERED this 2nd day of October, 1978 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John R. Sutton, Esquire 250 Bird Road, Suite 310 Coral Gables, Florida 33146 Paul Lambert, Esquire 1311 Executive Center Drive Tallahassee, Florida 32301 C. A. Hartley, Director Florida State Board of Chiropractic Examiners Suite 202, Building B 6501 Arlington Expressway Jacksonville, Florida 32211
Findings Of Fact The Board introduced and the affidavit of Charles E. Barner, Jr., was received into evidence as Exhibit 1. Exhibit 1 reflects that Ronald H. Draxten holds license number 1232 issued by the Florida Board or Chiropractic Examiners. Mrs. Hellen Rhew, the mother of Bonnie Ann Hullet, was called and testified. Bonnie Ann Hullet was taken by her mother to Dr. Draxten for treatment of a sore neck. She received chiropractic treatment from Dr. Draxten in early May 1975. On their second visit, Mrs. Rhew advised Dr. Draxten that her daughter suffered from stomach cramps and nausea following her treatments. Dr. Draxten advised Mrs. Rhew that at their next visit he could treat her daughter to relieve the stomach cramps and nausea. Dr. Draxten did not advise Mrs. Rhew of the nature of the treatment. On the following visit, after having treated her in the manner he had in the past the daughter and mother were taken to a treatment room approximately 10 feet X 20 feet, as referenced by Mrs. Rhew to items in the courtroom. Her daughter was placed on a treatment table on one side of the room, and Mrs. Rhew was seated directly opposite her. Dr. Draxten, standing between Mrs. Rhew and her daughter, began treating the daughter. After a short while Dr. Draxten left the room advising Mrs. Rhew he would return shortly. Bonnie Ann Hullet, Mrs. Rhew's daughter, stated that after she had laid down on the table, Dr. Draxten had pressed on her stomach with his hands, then she felt a sharp pain. Thereafter, the doctor left. When Dr. Draxten returned, she saw a needle. Mrs. Rhew saw the needle while it was in her daughter's abdomen. Dr. Draxten advised Mrs. Rhew that her daughter would have some reaction to the treatment which might include nausea and cramps, but she would get better and have less trouble than before. It was represented by both counsel for the Board and Dr. Draxten that Dr. Draxten had attended a course in acupuncture and had graduated, however, the Board did not recognize the school which he had attended. Thereafter, Dr. Draxten had enrolled in a school recognized by the Board, and on the day following the treatment of Bonnie Ann Hullet was examined by the second school which was recognized by the Board and successfully passed. Six weeks later the Board certified Dr. Draxten to practice acupuncture as a part of chiropractic for which he had been trained, however, the Board had officially discouraged Dr. Draxten from indicating his eligibility to practice acupuncture in the manner delineated by statute.
Recommendation The Hearing Officer recommends that Dr. Gerald Draxten receive a letter of reprimand for having violated the provisions of Rule 21D-1.04, F.A.C., and thereby violated Section 460.13(3)(h), F.S. DONE and ORDERED this 23rd day of February, 1976. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire Counsel for Petitioner John DuVall, Esquire Counsel for Respondent
The Issue Was Petitioner properly graded and given appropriate credit for his answers on the July, 1990 Florida Podiatric Medicine Licensure Examination (Florida Podiatry Examination).
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to the issues herein, Petitioner, Paul L. Sheehy, Jr., candidate No. 20017, was a candidate for licensure by examination as a Podiatrist, and the Board of Podiatry, (Board), was and is the state agency in Florida responsible for the licensing of Podiatrists and the regulation of the Practice of podiatric medicine in this state. Petitioner sat for the July, 1990 Florida Podiatry Examination on July 27, 1991. Petitioner obtained a score of 70.0 percent, representing 210 correct answers. A passing grade requires a score of 72 percent, representing 216 correct answers. Shortly before the beginning of the hearing, Respondent agreed to give Petitioner credit for questions 16 and 180 of Clinical I of the examination thereby raising his total score to 70.666 percent. At the beginning of the hearing, Petitioner withdrew his challenge to questions 22, 37, 87, 89, 104, 149, 176 and 178 of Clinical I of the examination and questions 3, 16, 22, 50, 67 and 53 of Clinical II of the examination. During the hearing Petitioner withdrew his challenge to question 27 of Clinical I and question 12 of Clinical II of the examination, leaving only his challenge to questions 103, 114, 138, 144 of Clinical I of the examination. The parties stipulated that the Petitioner was qualified and met all the requirements to sit for the July, 1990 Florida Podiatry Examination, and that Petitioner timely received a copy of the July 1990, Podiatric Medicine Licensure Examination Candidate Information Booklet (booklet). There is a lack of competent substantial evidence in the record to establish that the Florida Podiatry Examination given on July 27, 1990 was misleading in that it tested subjects or disciplines not covered or contained in the booklet, or that it was prejudicial as applied to Petitioner. The first question at issue is question 103 of Clinical I which stated: CASE HISTORY 44 In the exhibit book are photographs for this examination. Identify the photograph in the respective exhibit. 103. Which of the following answer choices is the best description of exhibit #11? Ganglion Cyst Verruca Melanoma Kaposi's Sarcoma Petitioner answered, C, Melanoma and the Respondent's answer was, B, Verruca. Petitioner admitted that his answer was incorrect. However, Petitioner contends that the question comes within the area of histology, an area not specifically mentioned in the booklet to be covered by the examination. Therefore, he was mislead by the booklet into not studying the area of histology. While the booklet does not specifically mention histology as an area of study to be covered in the examination, there were several other areas of study listed in the booklet which conceivably would have covered this question. Therefore, there has been no showing that the Respondent's failure to specifically list histology as an area of study mislead or prejudiced the Petitioner. The second question at issue is question 114 which stated: CASE HISTORY 45 An elderly obese male presents with an acutely inflamed first metatarsophalangeal joint. The pain began late last night and he awoke in severe pain. His past medical history reveals two previous such occurrences which resolved and went un- treated. He reports a history of chronic renal disease and mild hypertension. He presently takes no medication and has no known allergies. He denies use of alcohol and tobacco. Physical exam reveals an acutely inflamed, edematous 1st MPJ. A 3mm ulceration is present dorsally with white, chalky material exiting the wound. Laboratory studies reveal a CBC within normal limits and an elevated uric acid of 9.0mg/100ml. 114. Which of the following would you expect to find on microscopy of the synovial fluid? trapezoidal-shaped violet crystals absence of leukocytes needle-like birefringent crystals reflective hexagonal crystals and many leukocytes Petitioner answered D, reflective hexagonal crystals and many leukocytes. The Respondent's answer was C, needle-like birefringent crystals. Petitioner contends that none of the answers offered were entirely correct but that answer D was the most correct, while answer C was incorrect. Case History 45 would describe gout and pseudogout, but the key is the description of the fluid removed from the joint which is a white, chalky material found only with gout. Additionally, gout produces needle-like crystals (urate) that are negatively birefringent when view under crossed polarizing filters attached to a microscope. Leukocytes would be present in this case history but it would not produce reflective hexagonal crystals or trapezoidal-shaped violet crystals. Answers A and B are entirely incorrect, and although the presence of leukocytes is correct, it is not relevant because leukocytes are a normally found in any infection. Therefore, answer C is the correct answer, notwithstanding the absence of the word negative proceeding the word birefringent. The third question at issue is question 138 which stated: CASE HISTORY 49 A 27 year old athletic individual presents with a severely painful and swollen right ankle following a basketball injury the day before. There is severe ecchymosis and blister formation about the ankle. X-rays reveal (1) a displaced oblique spiral fracture of the lateral malleolus which runs anterior-inferior to posterior-superior at the level of the syndesmosis (2) transverse fracture of medical malleolus. There is gross dislocation and mal position of the talus. 138. If the initial treatment above were to fail, then treatment should consist of: immediate open reduction. wait 4-6 days, then perform open reduction and internal fixation. open reduction contraindicated at any time with this type of fracture. fusion of ankle joint. Petitioner answered A, immediate open reduction and the Respondent's answer was B, wait 4-6 days, then perform open reduction and internal fixation. The correct initial treatment for the patient would have been attempted close reduction as indicated by the correct answer to question 137 which Petitioner answered correctly. An attempted close reduction is an attempt to correctly align the fractured bone by manipulation as opposed to surgically opening the area and aligning the bone visually by touch which is the open reduction and internal fixation procedure. After an attempted alignment of the bone, an x-ray will determine if there is proper alignment. If there is proper alignment, then the area is immobilized with a cast or some other device until the fracture heals. If the x-ray shows that proper alignment of the bone has not been obtained (the initial treatment has failed) then open reduction and internal fixation would be proper provided the swelling, ecchymosis and blistering are not present. Otherwise, as in this case, the proper method would be to wait a period of time, 4-6 days, for the swelling, ecchymosis and blistering to go away. Petitioner's contention that the swelling had gone down since there had been immobilization of the area with a cast, posterior splint or unna boot and a waiting period is without merit since those devices would not have been used before determining by x-rays that the initial treatment (closed reduction) had failed. The fourth and last question at issue in question 144 which stated: CASE HISTORY 50 A patient presents with a painful left ankle. The pain occurs following ambulation and is relieved by rest. There is minimal periartic- ular atrophy and the joint is slightly warm. X-rays reveal non-uniform joint narrowing, subchondral sclerosis and marginal osteophytes. 144. It can be expected that the patient will favorably respond to treatment but may experience flareups. significant cartilage damage will occur. total joint replacement will be required. total remission can be expected following treatment. Petitioner answered B, significant cartilage damage will occur and Respondent's answer was A, that the patient will favorably respond to treatment but may experience flareups. There were a series of questions preceding this question concerning the patient in Case History 50. The first question asked for a diagnosis which the Petitioner correctly answered as osteoarthritis. The second question concerned advising the patient on treatment which the Petitioner answered correctly by giving instructions on protecting the joint and taking simple analgesics. The third question concerned activity levels such as jogging and climbing steps which Petitioner answered correctly by advising to avoid squatting. However, in selecting B as the answer to question 144 the Petitioner did not consider the suggested treatment and advise given in the previous answers. His reasoning was that he could not assume that the patient would follow his suggested treatment or advise on prevention and activity. Additionally, the Petitioner felt that other factors such as the patient's age, weight, general health, level of activity and occupation that were missing from the case history were necessary to make a proper evaluation of whether the patient would respond favorably to treatment. Respondent admitted that either answer A or B would be correct but he picked B because he knew the disease was progressive and in time would get worse causing significant cartilage damage. Osteoarthritis is a degenerative joint disease that is not uniformly progressive that responds to treatment but cannot be cured. There will be recurring episodes of pain (flareups) triggered by factors such as the weather or a person's activity. Based on the factors in the above case history, there is sufficient evidence to show that the patient will favorably respond to treatment but may experience flareups. It was reasonable and logical for the Respondent to assume that the Petitioner in answering question 14 would consider his preceding answers and assume that the patient would follow the suggested treatment and advice. There is a lack of competent substantial evidence in the record to establish that significant cartilage damage would occur based on the facts given in Case History 50. There is a lack of competent substantial evidence in the record to establish that the grades which the Petitioner received on the July, 1990 Florida Podiatry Examination were incorrect, unfair, or invalid, or that the examination, and subsequent review session, were administered in an arbitrary or capricious manner.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the Petitioner's challenge to the grade he received on the July 1990, Florida Podiatry Examination. RECOMMENDED this 18th day of September, 1991, in Tallahassee, Florida. WILLIAM R. CAVE 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 18th day of September, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2118 The following contributes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner Adopted in substance in Findings of Fact 1 and 4. Adopted in substance in Finding of Fact 4. Rejected as not supported by competent substantial evidence in the record. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in substance in Findings of Fact 1 and 2. Adopted in substance in Finding of Fact 2. Adopted in substance in Finding of Fact 3. 4.-6. Adopted in substance in Findings of Fact 6, 7, and 8, respectively. 7. Adopted in substance in Findings of Fact 9 and 10. COPIES FURNISHED: Hewitt E. Smith, Esquire P.O. Box 76081 Tampa, FL 33675 Vytas J. Urba, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford, Executive Director Board of Podiatry 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The ultimate issues in this case are whether Respondent violated Section 458.331(1)(m) and (t), Florida Statutes (1997), respectively, by failing to keep medical records that justify the course of treatment and by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances; and, if so, what penalty, if any, should be imposed against Respondent's license to practice medicine. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of medicine in Florida pursuant to Sections 20.165 and 20.43 and Chapters 455 and 458. Respondent is licensed as a medical physician in Florida pursuant to license number ME0050478. Respondent has been a Board-certified plastic surgeon at all times material to this proceeding. The Administrative Complaint involves one patient who undertook elective plastic surgery. The record identifies the patient as E.O. in order to preserve the patient's confidentiality. In summary, the Administrative Complaint alleges that Respondent departed from the acceptable standard of care by: failing to perform the surgical procedure elected by E.O.; performing a surgical procedure other than the procedure E.O. authorized; failing to document a reason for changing the procedure; failing to advise the patient of the risks associated with the procedure performed; performing breast augmentation with implants that were too large; and failing to document a reason for using the larger implants. On December 31, 1997, E.O. presented to Respondent for consultation regarding reconstruction of her left breast. At the time, E.O. was approximately 48 years old. E.O.'s medical history included an abdominal hysterectomy, a biopsy of the right breast, two biopsies of the left breast, and a diagnosis of cancer in the left breast. A partial mastectomy of the left breast and radiation therapy resulted in significant scarring. The left breast had a concave, depressed area in the left side. The depressed area extended from the upper part of the breast, near the outer pectoral muscle, halfway to the nipple. The nipple on the left breast was pulled to the outside toward the depressed area. E.O. also suffered ptosis, i.e., the appearance of drooping, that was not related to her medical history. The radiation therapy to the left breast had caused a burn injury that left internal scar tissue. The scar tissue was not pliable and was not suitable for manipulation during plastic surgery. During E.O.'s initial visit with Respondent on December 31, 1997, Respondent noted E.O.'s prior medical history and radiation treatment. He noted the bilateral ptosis and the left breast deformity. Respondent recommended bilateral implants for the purposes of reconstructing the left breast and for achieving symmetry between the breasts. Respondent and E.O. did not agree on a plan of treatment during the initial visit but did agree to a second visit. On January 16, 1998, E.O. presented to Respondent for her second visit. After further consideration of E.O's case, Respondent made a specific recommendation of bilateral augmentation with prostheses, in the form of implants, and a latissimus dorsi flap (LDF) procedure to correct the depression in the left breast. An LDF procedure would have resected, or removed, the scarring in the left breast and would have replaced the resulting divot with healthy tissue. Respondent would have obtained healthy tissue by moving a flap of tissue and muscle from the patient's back underneath the patient's outer tissue layers and placing the flap internally in the left breast. E.O. agreed with Respondent's recommendation. E.O. agreed to the bilateral augmentation because Respondent advised her that an implant in her right breast was necessary to achieve appropriate symmetry. E.O. did not agree to the augmentation because she wanted larger breasts. Respondent assured E.O. that her breast size would increase only about one-half cup. Respondent's records do not include a reference to the size of the implants to be used. Respondent indicated he would seek preauthorization from the insurer for the LDF procedure with prosetheses. The LDF procedure required E.O. to stay overnight in the hospital following surgery. Surgery that omitted the LDF procedure could have been performed in "same-day" surgery. Respondent and E.O. did not discuss or agree upon any plan of treatment. On January 21, 1998, E.O. presented to Respondent for a third time. E.O.'s husband, L.O., was also present. Respondent discussed the LDF procedure with E.O. and L.O. Respondent stated that he believed the LDF procedure was necessary to fill-in the left breast after Respondent resected the radiated tissue as part of the reconstruction of E.O.'s left breast. Respondent, E.O., and L.O. did not discuss other treatment options. On January 21, 1998, Respondent requested authorization from E.O.'s insuror for breast reconstruction surgery that included an LDF procedure with the use of a prosthetic implant. On February 12, 1998, E.O. presented to Respondent for a fourth time. E.O. had additional questions about the surgery that included questions regarding the insurance coverage for the surgery. E.O. and Respondent did not discuss the LDF procedure or other treatment options. Respondent scheduled the surgery for February 26, 1998, at the Columbia Regional Medical Center Southwest Hospital ("Columbia" or the "hospital"). On February 24, 1998, E.O. presented to Columbia for a preoperative workup. At the preoperative workup, E.O. executed a written informed consent document that authorized Respondent to perform a, "Lat Flap with implant left Breast and Right endoscope augmentation." Respondent also signed the informed consent. E.O. did not consent to another procedure different from that stated in the informed consent. Nor did E.O. and Respondent agree upon a different procedure. Hospital records, including the Short-Stay History and Physical completed on the day of surgery and signed by Respondent, show that the procedure to be performed was an LDF procedure with implants. The hospital records are devoid of any indication that E.O. did not wish to undergo the LDF procedure or that E.O. expressed any reservations about the procedure. On the morning of February 26, 1998, E.O. fully expected to undergo the LDF procedure. E.O. presented to Columbia anticipating an overnight hospitalization that was consistent with an LDF procedure. E.O. brought with her the personal belongings she would need for an overnight hospitalization. The applicable standard of medical care required Respondent to perform the LDF procedure so long as it was medically reasonable to do so. On February 26, 1998, Respondent performed surgery on E.O. that included an implant in each breast. However, Respondent did not perform the LDF procedure. Rather, Respondent created breast flaps by incising existing scar tissue and utilizing the incised scar tissue to fill in the depression in the left breast. Respondent did not resect the scar tissue and replace it with healthy tissue. Immediately after the surgery, Respondent advised L.O., without explanation, that Respondent did not perform the LDF procedure and that E.O. was doing well. Columbia discharged E.O. on the same day of surgery. During the trip home in their car, L.O. advised E.O. that Respondent did not perform the LDF procedure. E.O. was surprised but groggy from medication. No medical reason prevented Respondent from performing the LDF procedure. Respondent encountered no difficulties or complications during surgery that precluded the LDF procedure. Moreover, there were medical reasons not to incise the scar tissue and use it to fill in the depression in the left breast. Irradiated scar tissue is not well vascularized, is not pliable, and is not easy to manipulate. The only reason that Respondent offered for failing to perform the LDF procedure was that E.O. expressed concern over the procedure. Respondent testified that E.O. expressed her concern to Respondent when Respondent was in the holding area marking E.O.'s breasts for surgery. The holding area is an area that is physically separate from the operating room. E.O. did not expressly ask Respondent not to perform the LDF procedure. Rather, Respondent inferred that E.O. did not want him to perform the LDF procedure. As Respondent testified during cross examination: Q. And you had a conversation with her wherein she expressed some concern about the latissimus dorsi flap procedure; is that correct? A. The tenor of her conversation indicated some concern. She did not say to me please don't do it, but the tenor of her conversation was that there was concern when I was marking her for it. Transcript (TR) at 624. Respondent claims that the conversation with E.O. occurred when Respondent was in the holding area marking E.O. for surgery. Respondent's testimony during cross examination is illustrative. Q. And your testimony is that, is the holding area an area different than the actual operating room. A. Yes. * * * Q. I would like for you to look to the first line of this operative report, under procedures. It says the patient was brought to the operating room, and marked in the sitting position, then laid supine. A. Yes. Q. Doesn't that note say that you did not mark this patient in the holding area, but you marked her in the operating room? A. It sure does. And are you telling me today that this is in error? A. That is absolutely in error. I have never marked a patient in the operating room. TR at 625. Respondent's claim that he had a conversation with E.O. in the holding area before surgery is refuted by E.O. The testimony of E.O. concerning this factual issue is credible and persuasive. The testimony of E.O. is consistent with the operative report stating that E.O. was marked in the operating room rather than in the holding area. Respondent did not see E.O. in the holding area prior to surgery and did not have a conversation with E.O. in which E.O. expressed some concern over the LDF procedure. E.O. received preoperative medication in the holding area and was not capable of carrying on a conversation with Respondent in the operating room and was not capable of making an informed consent to a different procedure. If it were determined that Respondent had a conversation with E.O. in the holding area while marking her for surgery, there was ample time to amend the informed consent document to reflect a different treatment plan agreed to by E.O. and Respondent. The actual surgery performed by Respondent was a procedure that was different from the LDF procedure authorized by E.O. The actual surgical procedure performed by Respondent was not a lesser included procedure of the LDF procedure. The applicable standard of care would have required Respondent to amend the informed consent document under the facts and circumstances testified to by Respondent. An informed consent should include all anticipated treatment options. The informed consent signed by E.O. and Respondent did not include any options to the LDF procedure. Even if it were determined that the actual procedure performed is a lesser included procedure of the LDF procedure, E.O. did not consent to the lesser included procedure. The performance of a lesser included procedure for which E.O. was not informed and to which E.O. did not consent departs from the applicable standard of care. The procedure performed by Respondent during surgery increased the risk of failure and the need for subsequent surgery by using scar tissue rather than resecting the scar tissue and using healthy tissue to fill in the left breast. Respondent failed to inform E.O. of the increased risk of the procedure actually utilized by Respondent. Respondent failed to practice medicine with the level of care, skill, and treatment recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances. First, Respondent failed to perform the procedure that E.O. authorized. Second, Respondent performed a procedure that placed implants in E.O.'s irradiated left breast without resecting the irradiated scar tissue. Third, Respondent failed to inform E.O. of the increased risk associated with the procedure Respondent utilized during surgery. Finally, Respondent failed to document in the records a reason or rationale for performing a surgical procedure other than the LDF procedure authorized by the patient. Prior to surgery, Respondent agreed to use the smallest implants possible. During surgery, Respondent placed very large implants in E.O.'s breasts. Respondent used a 480 cc implant in the left breast and a 460 cc implant in the right breast. Respondent used the large implant in the left breast, rather than the LDF, in an attempt to stretch the tissue, including the scar tissue, and to fill in the depression in the left breast. Respondent used the large implant in the right breast for symmetry. E.O. did not consent to the use of large implants in either breast. Rather, E.O. authorized the smallest implants possible. Respondent utilized implants that increased E.O.'s cup size from a small C cup to a DD cup. The weight and volume of the large implants stretched E.O.'s skin and exacerbated her ptosis. After surgery, E.O.'s clothes did not fit. A DD cup size was sometimes too small. An accepted method of determining the effect of implants is to sit the patient up on the operating table prior to completing surgery. Respondent did not sit E.O. up on the operating table to view the effect of the implants. Respondent had a complete range of implant types and sizes available for use during surgery. Respondent failed to practice medicine with the level of care, skill, and treatment recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances. Respondent utilized implants that were not authorized by E.O. by placing overly large implants in E.O.'s breasts. Respondent failed to utilize the implants authorized by E.O. by failing to use the smallest implants possible. Respondent failed to document in the records a reason or rationale for using implants other than those authorized by E.O. Respondent's failure to practice medicine in accordance with the applicable standard of care caused substantial harm to E.O. At the first postoperative visit on March 2, 1998, E.O. asked Respondent why he did not perform the LDF procedure. Respondent stated that he had determined that E.O. could do without the LDF procedure. E.O. also expressed concern over the large size of her breasts. Respondent explained that the large size was attributable to swelling and that it would take several months for the swelling to dissipate. Until that time, it was impossible to assess the final result. During subsequent visits on March 11 and 18 and on April 3, 1998, E.O. expressed concern over the size and appearance of her breasts. However, she continued to trust Respondent and to accept his assurances that she needed to be patient and allow the swelling to go down before forming any final opinions regarding the outcome of the surgery. During a visit on May 1, 1998, Respondent examined E.O. and acknowledged that the procedure actually performed on February 26, 1998, did not produce the desired result. The implant and incised scar tissue had not stretched and filled in the left breast. Respondent advised E.O. that she needed the LDF procedure. E.O. elected for Dr. Brueck to perform reconstruction surgery on her. However, problems with insurance coverage delayed the surgery until July 11, 2000. The surgery included bilateral reconstruction with bilateral implant and mastopexy. E.O.'s breast size was a B cup after surgery. E.O. was very pleased with the results of the surgery.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED, in accordance with the terms of Petitioner's PRO, that Petitioner enter a Final Order finding Respondent guilty of violating Section 458.331(1)(m) and (t); issuing a written reprimand; imposing a fine of $5,000; and requiring Respondent to complete, within one year, 20 hours of continuing professional education above and beyond that required to maintain licensure. DONE AND ENTERED this 18th day of March, 2002, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 18th day of March, 2002. COPIES FURNISHED: William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Britt Thomas, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Carol A. Lanfi, Esquire 1000 Riverside Avenue, Suite 800 Jacksonville, Florida 32204 Albert Peacock, Esquire 8554 Congressional Drive Tallahassee, Florida 32312 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Should Respondent Patricia Dee G. Stehpenson's license to practice medicine in the State of Florida be revoked, suspended or otherwise disciplined based on the allegations contained in the Administrative Complaint filed herein?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Respondent was a licensed physician in the State of Florida, having been issued license number ME 0051453. The patient, a 73 year old female, presented to Respondent on July 11, 1991, with complaints of flashes of light over the past ten years which had increased over the past two years. The patient also complained of seeing halos around street lights at night. During this visit, Respondent diagnosed the patient as having 20/30 corrected vision in her right eye and 20/40 plus 2 corrected vision in her left eye, and that the patient had cataracts. However, Respondent did not recommend cataract surgery at this time. In January, 1992, the patient took the State of Florida driver's license test, including the eye test, and received her driver's license. However, the examiner notice that the patient was having trouble with the eye test and, although the examiner gave the patient her driver's license, the examiner suggested that the patient see an opthalmologist. At the time the patient received her driver's license in January, 1992, the patient was enjoying golf, bowling and driving. Although the patient did not immediately follow the driver's license examiner's advice concerning her eyes, the patient did visit with Respondent on May 8, 1992. At this visit, the patient advised the Respondent that the flashes and floaters had improved but that her vision was interfering with her golfing and driving. Again, Respondent did not recommend removal of the cataract. The patient's vision continued to interfere with her golfing and driving, notwithstanding the patient's testimony to the contrary which I do not find to be credible. The patient's next visit with Respondent was on October 16, 1992. At this visit, the patient advised Respondent that her vision had "lessened a lot" in the left eye. Visual acuity testing indicated corrected vision of 20/30 in the right eye and 20/40 plus 2 in the left eye. However, while the level of vision at which the patient was able to perceive letters (20/40 plus 2) did not change, the refraction (stronger glasses) required to achieve that level indicated more myopia, indicating that the cataract had progressed which supports the patient's complaint that her vision had "lessened a lot". Also at the October 16, 1992, visit, Respondent tested the patient's vision using brightness acuity testing (glare test) and measured the patient's vision as 20/70, with glare in the left eye. The glare test is a method whereby the doctor shines a light in the person's eye to determine the effect of glare on the person's vision. Although some ophthalmologists consider the glare test of no value, other ophthalmologists consider the glare test as another tool to assist the surgeon in making a decision concerning the necessity for cataract surgery. During the October 16, 1992, office visit, Respondent discussed with the patient: (a) the effect the cataract was having on the patient's activities (life-style); (b) the patient's complaint that her vision had lessened; (c) the results of the glare test showing the patient's vision as 20/70 with glare and; (d) other visual acuity testing; and (e)advised the patient that cataract surgery was indicated. Also, Respondent explained the cataract surgery procedures and discussed with the patient the risks and the benefits of the surgery. The patient had no reservations or objections to the surgery and consented to the surgery in hopes of improving her eyesight as well as her life- style. For a person with cataracts, a corrected vision of 20/40 or worse is the vision level where some cataract surgeons will recommend cataract surgery, while other cataract surgeons consider a corrected vision of 20/50 or worse, with or without glare, as the vision level where cataract surgery should be recommended. However, because the vision as determined by visual acuity testing (the ability of the person to perceive letters) does not always accurately reflect the person's quality of vision (the quality of perception on a day to day basis), neither vision level referred to above when considered alone can be used as a hard and fast rule to form a basis for cataract surgery. Since the quality of vision can only be described by the person with the cataract(s), the cataract surgeon must also determine, after consultation with the person, that the cataract(s) are interfering with the person's life-style. Therefore, a person with corrected vision of somewhat better than 20/40 or 20/70 with or without glare, may be a candidate for cataract surgery, provided the cataract is causing a reduction in the person's quality of vision beyond what is indicated by visual acuity testing and thereby interfering with the person's life-style. Furthermore, there are no written standards or guidelines which set a particular vision level for the cataract surgeon to follow when making a decision to recommend cataract surgery. The surgeon must take into consideration all factors and make a decision based on the surgeon's judgment as to what is best for that person. The patient's vision level and the interference the patient was experiencing with her life-style because of the cataracts in her left eye justified Respondent's decision to recommend and perform the cataract surgery on the patient, notwithstanding any of the testimony of Dr. Leslie Monroe to the contrary. On November 3, 1992, Respondent performed phacoemulsification (removal of cataract) with posterior chamber intracular lens implant (implantation of lens) on the patient's left eye. While the patient was in the holding area being prepared for surgery there were complications with the anesthesia. The anesthesiologist, Robert Dienes, M. D., first gave the patient a retrobulbar block which was repeated apparently due to Dr. Dienes' conclusion that the first retrobulbar block was ineffective. Apparently, Dr. Dienes also concluded that the second retrobulbar block was ineffective and gave the patient a superior lid peribulbar block. After giving the peribulbar block, Dr. Dienes noticed a dissecting subconjunctival hemorrhage and notified Respondent. Upon examining the patient's eye, Respondent found the globe (whole eye) to be soft with no active bleeding, indicating the eye was not full of blood and that there was no retina tear or rupture of the globe. Respondent also noticed that "the conjunctiva was real chemotic or it had blood behind it". Respondent also measured the patient's eye pressure with a Schiotz tonameter because there was no slit-lamp in the holding area. The patient's eye pressure was 5, with a 5.5 gram weight, which was normal. The patient's medical records do not reflect an indirect ophthalmoscopy being performed by Respondent on the patient's left eye between Respondent being advised of the dissecting subjunctival hemorrhage by Dr. Diemes and the Respondent performing surgery on the patient's left eye to remove the cataract and implant the lens. Furthermore, Respondent has no independent recollection of performing an indirect ophthalmoscopy during the above period of time before surgery. Respondent's normal practice under conditions and circumstances similar to those in this case has been to perform an indirect ophthalmoscopy during the above period of time before surgery. Therefore, it is assumed that Respondent performed an indirect ophthalmoscopy on the patient after being advised of the subconjunctival hemorrhage but before surgery, notwithstanding the fact that patient's medical records do not reflect such procedure being performed or the fact that Respondent has no independent recollection of performing such procedure during the above period of time. However, assuming arguendo that Respondent did not perform the indirect ophthalmoscopy before surgery, the Agency has failed to establish facts to show that under the conditions and circumstances of this case that such failure amounted to the failure of Respondent to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. After considering the conditions and circumstances surrounding the complication that arose while the patient was being anesthetized, Respondent made a decision that it was in the best interest of the patient to go forward with the removal of the cataract and implantation of the lens. The operation was completed without any further incident and there was a successful removal of the cataract and lens transplant. Respondent's decision to go forward with the surgery had no adverse effect on the subsequent treatment of the complication that arose while the patient was being anesthetized. In fact, the result of the treatment subsequent to the cataract surgery would have been the same even if Respondent had not gone forward with the surgery. Respondent, using a ophthalmoscope, was able to see the inside of the eye more clearly and assess the complication that arose while the patient was being anesthetized. While performing this indirect ophthalmoscopy, Respondent noted undulation of the vitreous with pigmented blood cells present and that the anesthesia needle had penetrated the globe. The patient was seen the next morning, November 3, 1992, by Respondent. After assessing the condition of the patient's left eye, Respondent referred the patient to Keye Wong, M. D., a retina specialist. Upon examining the patient's left eye on November 4, 1992, Dr. Wong noted vitreous hemorrhaging and retinal detachment. Dr. Wong performed an operation on the patient's left eye in an attempt to correct the damage and attach the retina. The patient's vision is not as good as it was before the operation, and still effects the patient's life-style. The patient has difficulty tolerating sunlight, which may or may not be a result of the complication experienced while the patient was being anesthetize. Respondent's action of going forward with the surgery after becoming aware of the complication that arose while the patient was being anesthetized did not cause, complicate, aggravate or result in any of the problems the patient has suffered postoperatively. Respondent did not fail to recognize, identify or treat properly the complications that arose before, during or after the surgery. The Agency has failed to establish facts to show that Respondent failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances at anytime while Respondent was treating the patient, including both preoperative and postoperative treatment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner Agency for Health Care Administration enter a final order dismissing the Administrative Complaint filed herein against Respondent Patricia Dee G. Stephenson, M. D. DONE and ENTERED this 23rd day of January, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1560 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner and the Department in this case. Agency's Proposed Findings of Fact. Proposed findings of fact 1-2 are adopted in substance as modified in Findings of Fact 1 and 2. The first sentence of proposed finding of fact 3 is adopted in Finding of Fact 3. The second and third sentence are not supported by evidence in the record. Proposed finding of fact 4 is adopted in substance as modified in Finding of Fact 5, otherwise not supported by evidence in the record. Proposed finding of fact 5 is adopted in substance as modified in Finding of Fact 7, otherwise not supported by evidence in the record. Proposed finding of fact 6 is adopted in substance as modified in Findings of Fact 12, 13, and 14, otherwise not supported by evidence in the record. Proposed findings of fact 7 and 8 are adopted in substance as modified in Findings of Fact 21 and 22, otherwise not supported by evidence in the record. Proposed finding of fact 9 is a restatement of Dr. Monroe's testimony and is not a finding of fact. However, see Findings of Fact 16 and 17. 8, Proposed findings of fact 10, 16, 17 and 19 are adopted in substance as modified in Findings of Fact 15, 16, 10, 8 and 9. Proposed finding of fact 11 is adopted in substance as modified in Finding of Fact 16, otherwise not supported by evidence in the record. Although proposed findings of fact 12, 13 and 15 are findings of fact, they are neither material nor relevant to this proceeding. See Finding of Fact 9. Proposed finding of fact 14 is a restatement of Dr. Grabow's testimony and is not stated as a finding of fact, but see Finding of Fact 10. Dr. Grabow's testimony was 20/50 vision with or without glare which is different than just 20/50 vision. 11. Proposed findings of Fact 18 and 20 are not supported by evidence in the record. Respondent's Proposed Findings of Fact. 1. Proposed findings of fact 1 through 27 are adopted in substance as modified in Findings of Fact 1 through 25. COPIES FURNISHED: Marm Harris, M. D., Executive Director Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jerome W. Hoffman, Esquire Agency for Health Care Administration Fort Knox Building Number Three 2727 Mahan Drive Tallahassee, Florida 32308 Steve Rothenburg, Esquire Agency for Health Care Administration 9325 Bay Plaza Boulevard, Suite 210 Tampa, Florida 33619 William E. Partridge, Esquire Lutz, Webb, Partridge, BoBo, and Baitty One Sarasota Tower 2 North Tamiami Trail, Suite 500 Sarasota, Florida 34236
The Issue Whether Petitioner's request for authorization for the autologous chondrocyte implantation (ACI) procedure should be approved pursuant to worker's compensation laws and rules.
Findings Of Fact Witherspoon is a 41-year-old police officer. He has worked in law enforcement for 20 years and is currently employed as a police officer for the City of Fort Lauderdale. Witherspoon was injured in an employment-related accident on September 14, 1999. The accident significantly aggravated a pre-existing injury to his left knee. At the time of the accident, Witherspoon had already had two arthroscopic surgical procedures to treat his pre- existing knee injury. He underwent a third arthroscopic surgery following the accident, and returned to work in the Spring of 2000. In addition to surgery and physical therapy, Witherspoon has been treated continuously with injections and medications in an effort to alleviate his symptoms, to no avail. At all times relevant to this case, Witherspoon has two separate injuries to the articular cartilage of his knee: one in the trochlea and one in the medial femoral condyle. Because of these injuries, Witherspoon's articular cartilage, which is necessary for proper functioning of the knee joint, has been degrading and flaking off and will continue to do so. The injuries cause him to walk with a significant limp. He is in constant pain and constant danger of his knee buckling. Witherspoon's situation is complicated by a defect in the articular cartilage of his patella. ACI was not recommended for this defect, and it is unknown how debilitating the patella injury would continue to be, if and when ACI treatment is successfully completed. Because of his injuries, Witherspoon is unable to perform the duties of a uniformed police officer. He is presently assigned to desk work, at a significantly reduced salary. Witherspoon is on an accelerated course to advanced degenerative arthritis, for which a complete knee replacement is the standard recommended treatment. Because Witherspoon is relatively young and knee replacements do not last indefinitely, the unanimous weight of medical opinion is that knee replacement should be postponed as long as possible. Witherspoon's treating physician, having exhausted all viable treatment options, referred Witherspoon to Dr. Douglas Stringham (Stringham), a Board-certified orthopedic surgeon. After reviewing Witherspoon's arthroscopic photographs and medical records, Stringham recommended that he undergo ACI. Witherspoon requested authorization for the ACI procedure, which was denied by his Employer/Carrier City of Fort Lauderdale (Employer). The dispute was referred to AHCA for review in accordance with Subsection 440.13(1)(m), Florida Statutes. AHCA consulted with Dr. Peter Indelicato (Indelicato), a Board-certified orthopedic surgeon. Indelicato rendered an opinion that the procedure is investigative within the meaning of Rule 59B-11.002(5), Florida Administrative Code. He further opined that there was not reliable evidence that ACI would provide significant benefit to Witherspoon's recovery and well being within the meaning of Rule 59B- 11.004(3), Florida Administrative Code. Relying exclusively upon Indelicato’s opinion, AHCA declined to order the Employer to provide ACI to the Petitioner. Upon the filing of this petition, Witherspoon was advised by the Employer that neither ACI nor any other form of intervention would be offered to him. AHCA has not promulgated, endorsed, or approved any particular treatment for injuries to the articular cartilage of the knee in accordance with Subsection 440.13, Florida Statutes. The ACI procedure which has been recommended to Witherspoon was initially developed in Sweden. Over the course of two separate surgical procedures, a sample of cartilage is first harvested arthroscopically from another area of the patient's knee joint. The sample is sent to the Boston Laboratory of Genzyme Tissue Repair, Inc. (“Genzyme”), which owns the rights to the process. Genzyme uses its proprietary process to culture the cells into an estimated five million chondrocytes over a period of approximately five weeks. Genzyme returns the cultured chondrocytes to the surgeon. The surgeon then performs an open surgical operation. The surgeon creates a periosteal flap. In addition, the injury is debrided and the chondrocytes are implanted in the wounded cartilage and covered with the periosteal flap. The claimed benefit of ACI is that the cartilage that is generated and implanted into the knee will approximate natural human cartilage to an extent significant enough to provide substantial benefit to the patient. Because ACI is in its infancy, questions remain about the long-term efficacy of the procedure. Other available treatments for a defect in articular cartilage of the knee include, abrasion chondroplasty, arthroscopic microfracture or drilling, osteochondral autograft surgery or “plugs”, and an osteochondral allograft using transplanted tissue from a cadaver (collectively, "conventional interventions"). Each of these procedures is, standing alone, less expensive than ACI. Each of these procedures, whether used singly or in combination, is not appropriate for Witherspoon at this time. Individually and collectively, conventional interventions afford no realistic hope of providing any noticeable relief for his symptoms, nor will they forestall the deterioration of his knee. The evidence establishes that there are no viable alternatives to ACI in the facts and circumstances of this case. Witherspoon is either not a candidate for conventional interventions, or has had such treatments and they have failed. Of the three Board-certified orthopedic surgeons who testified, AHCA's expert, who has never performed ACI, opined that Witherspoon could be treated by conventional interventions and Witherspoon's experts, who do perform ACI, testified that conventional interventions have failed and will continue to fail. There is no evidence to suggest that the testimony of any of the doctors was tainted by personal financial considerations of any kind. The ACI procedure, if successful, would be less expensive than a continuing course of short-term "housekeeping" treatments. Conventional interventions would, at most, stave off the inevitable knee replacement. They would not alleviate Witherspoon's disability in any way. Reliable evidence establishes that the ACI procedure presents the only possibility of providing Witherspoon with significant benefits toward recovery and well being. AHCA stipulates and the evidence establishes that ACI has been established to be safe. Under the facts and circumstances of this case, the benefits of the ACI procedure outweigh the risks to Witherspoon.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Agency for Health Care Administration enter a Final Order approving the proposed ACI for the Petitioner. DONE AND ENTERED this 24th day of April, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 24th day of April, 2001. COPIES FURNISHED: Barry A. Pemsler, Esquire 307 Ros Centre 770 Ponce de Leon Boulevard Coral Gables, Florida 33134 Michelle L. Oxman, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Mail Stop 3 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308
The Issue Whether Respondent performed a wrong-site procedure in violation of section 456.072(1)(bb), Florida Statutes; if so, whether (and what) disciplinary measures should be taken against Respondent's license to practice medicine.
Findings Of Fact At all times relevant to this case, Dr. Lior, M.D., was licensed to practice medicine in the State of Florida, having been issued license number ME 74061, and was board-certified by the American Board of Dermatology. The Department has regulatory jurisdiction over licensed physicians such as Dr. Lior. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. Here, the Department alleges that Dr. Lior committed one such offense. In the one-count Complaint, the Department charges that Dr. Lior violated section 456.072(1)(bb), "by performing or attempting to perform health care services on the wrong patient, a wrong-site procedure, a wrong procedure, or an unauthorized procedure or a procedure that is medically unnecessary or otherwise unrelated to the patient's diagnosis or medical condition." Dr. Akhtar's Examination On January 11, 2010, Patient S.L., a 74-year-old gentleman, presented to Asfa Akhtar, D.O., a general dermatologist employed by the Cleveland Clinic Florida, for an evaluation of a lesion inside his left ear. It was noted on that date that S.L. had a positive history for skin cancer. Dr. Akhtar performed a physical examination of S.L., and his contemporaneous note provides, in pertinent part, as follows: "Exam of the face, ears and hands reveal a pearly papule with rolled borders on the right helix."1/ On that date Dr. Akhtar's assessment included "R/O BCC-right helix." In other words, Dr. Akhtar wanted to rule out basal cell carcinoma on S.L.'s right helix. Dr. Akhtar's plan was to conduct a "shave biopsy." Prior to performing the biopsy, the location was marked with a pen and photographed. Dr. Akhtar then performed the biopsy by scraping skin cells of the surface skin of the suspicious area. The subsequent surgical pathology report provides, in pertinent part, as follows: Final Pathologic Diagnosis SKIN BIOPSY, RIGHT HELIX: NODULAR BASAL CELL CARCINOMA WITH SURFACE ULCERATION. TUMOR EXTENDS TO THE DEEP AND PERIPHERAL MARGINS OF BIOPSY. In correspondence dated January 20, 2010, Dr. Akhtar advised S.L. that the pathologic findings from the biopsy specimen of S.L.'s right helix confirmed a basal cell carcinoma. Dr. Akhtar recommended that it "be treated by a technique called Mohs Surgery to be certain as possible that it is completely removed." January 26, 2010 Consultation On January 26, 2010, S.L. presented to Dr. Lior for a Mohs surgical consultation. In addition to being board-certified in dermatology, Dr. Lior is qualified as a Mohs surgeon. On that date, Dr. Lior, who is also employed at the Cleveland Clinic, had access to the records of Dr. Aktar's office visit, the biopsy photograph, and the pathology report. Additionally, Dr. Lior's nurse, Diane Donner, LPN, obtained additional history from the patient. Specifically, Ms. Donner noted that, "[p]atient states he has surgery in the area approximately 3 years ago. It has been present for 3 YEAR(S)." Dr. Lior then performed an examination of S.L.'s right helix; however, her examination did not include the entire right helix. Specifically, Dr. Lior did not examine the top of the helix of S.L.'s ear. Instead, Dr. Lior conducted a "focused examination" on an observed scarred pearly papule on the helix of the right ear just superior to (above) the mid-line of the ear. Dr. Lior explained the methodology utilized in limiting her examination to a specific location on the helix, as follows: Q. . . . What information from those records would indicate where on that right helix that you just described that either the biopsy was taken or that there was biopsy- proven carcinoma? A. Right. So when we get that information, patient participation is expected. We ask the patient. We get a history. Then we also need to look at the area and see what looks consistent with the biopsy site as well. And so all of these things, when you actually see a cancer and you see a scar and you see the skin graft area, and the patient tells you that that's the site, you put it together with your biopsy pathology report, as well as your office notes. It's what we use all together. Based on Dr. Lior's experience, the observed papule was consistent with the clinical appearance of basal cell carcinoma. Dr. Lior credibly testified that S.L. pointed to the same area she was palpating and advised her that he had previously undergone Mohs surgery and that the cancer had returned. Dr. Lior discussed treatment options with S.L. and advised that Mohs surgery would be appropriate, to which S.L. agreed. Dr. Lior's record of the consultation provides in pertinent part, as follows: Physical Exam: Right superior helix: There is a 1 cm scarred, crusted, pearly papule. Impression: Biopsy-proven basal cell carcinoma. Patient notes this is recurrent. Plan: Therefore indicated for Mohs surgery. February 11, 2010 Mohs Surgery S.L. returned to Dr. Lior for the scheduled Mohs surgery on February 11, 2010. Upon entering the surgical room, S.L. was engaged in a conversation with Ms. Donner concerning the location of the site. Dr. Lior greeted and approached S.L., obtained the prior photograph, approached S.L.'s ear, and stated, "let's take a look." As she was attempting to match the photograph with the area of the ear, S.L. stated to Dr. Lior, "Don't you see the scar?" while simultaneously pointing to the location of the scar tissue. Dr. Lior indeed observed the scar tissue from the prior skin graft and again, like the January 26, 2010, consultation, noted the area was consistent with recurrent basal cell carcinoma. The location was noted to be just above the scar. Dr. Lior proceeded to palpate or touch the suspicious area. Thereafter, Dr. Lior proceeded to mark the intended surgical location on S.L.'s ear with a marker pen. Subsequently, a photograph of the marked location was obtained, the patient's informed consent was obtained, and an informed consent document was executed by S.L. A time-out was then performed where Dr. Lior and her assistant agreed upon the procedure and location. The surgical site was then sterilized and injected with lidocaine. At no time prior to the surgery did S.L. voice any concerns or objections related to the proposed surgical site. S.L. was not, however, provided a mirror to examine the proposed marked location. Additionally, there was no evidence that S.L. was shown a copy of the photograph obtained by Dr. Lior prior to surgery. Dr. Lior then proceeded to perform the Mohs surgery without incident. After completing the procedure, S.L.'s ear was bandaged and S.L. waited in a separate room while the excised portion of the ear was examined to determine whether there were "clear margins"--the absence of basal cell carcinoma. After completing the examination, Dr. Lior requested that S.L. return to the operating area to discuss the findings. When S.L. returned, Dr. Lior stated, "Good news, it's all clear, the margins are clear, there's no cancer, we're going to repair the area." In response, S.L. replied that, "[t]he site was not here, it was here." S.L. then bent the top of his ear down, and Dr. Lior observed--for the first time--a papule consistent with basal cell carcinoma.2/ It is undisputed that this newly-observed papule was the site of biopsy-proven basal cell carcinoma. Dr. Lior conceded that it was her plan, at the conclusion of the January 26, 2010, consultation, to perform a Mohs surgery on the site of the biopsy-proven basal cell carcinoma. She further conceded that, on February 11, 2010, she performed the Mohs surgery on a location of S.L.'s right helix different from the location that was the subject of the biopsy performed by Dr. Akhtar.3/ Dr. Lior offered to perform a Mohs surgery on the newly-observed/previously-biopsied location; however, S.L. elected to defer the procedure for a later date. Accordingly, Dr. Lior closed the existing excision site and performed a skin graft in the area. Dr. Lior provided S.L. with her contact information and informed S.L. that she would attempt to arrange for the Cleveland Clinic to withhold the charges for the surgical procedure performed. The Cleveland Clinic reversed the charges, as requested. S.L. declined to return to the Cleveland Clinic for suture removal or for any additional procedures.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Respondent guilty of performing a wrong-site procedure and, therefore, violating section 456.072(1)(bb); and imposing the following penalties: a $1,000.00 fine, a letter of concern, five hours of risk management education, and a one-hour lecture on wrong-site surgery. DONE AND ENTERED this 20th day of May, 2013, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2013.
The Issue Whether Respondent violated section 458.331(1)(t), Florida Statutes, by committing medical malpractice.
Findings Of Fact Petitioner is the state agency charged with the regulation of the practice of medicine pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. At all times material to these proceedings, Respondent was licensed as a physician in the State of Florida and held license number ME50399. Dr. Lopez immigrated to the United States with his family at a young age from Cuba. Spanish is his first language, and he is completely fluent in English. He attended primary and secondary schools in the United States. He graduated from the University of Georgia with a bachelor of science degree in chemistry. He attended medical school at the Medical College of Georgia in Augusta, Georgia, He completed his residency at Emory University in Atlanta, Georgia. Dr. Lopez has been board-certified in obstetrics and gynecology since 1990, and was so certified at the time of the incident giving rise to these proceedings. At the time of the hearing, Dr. Lopez was employed by Palm Beach Medical Group. He was seeing obstetrical and gynecological patients for “in- office” only consultations and care. Although he has delivered over 10,000 babies and performed hundreds of obstetrical and/or gynecological surgeries over the course of his more than 33-year career, as of August 2017, he elected to no longer deliver babies or perform surgeries. His obstetrical patients are now delivered by hospital-based obstetricians, and he refers out all patients requiring surgery to other surgeons. He has voluntarily elected not to reactivate his hospital privileges at any hospital at this time. The patient, O.C. (“O.C.”), a 40-year-old female, was admitted to Good Samaritan Medical Center (“Good Samaritan”) on July 25, 2017. Good Samaritan is a local community hospital. It is neither a trauma center nor a teaching hospital. On that same day, at approximately 8:03 p.m., Respondent delivered the baby of O.C. after a scheduled induction. During the delivery, O.C. suffered one or more cervical lacerations and developed a postpartum hemorrhage. Respondent performed a postpartum cervical exam at O.C.’s bedside with a vaginal speculum. The medical records reflect that Respondent’s visualization of the cervix during the exam was hampered by bleeding. Respondent found multiple cervical lacerations, which he documented that he repaired. However, O.C. continued to bleed heavily and her condition deteriorated. By 8:40 p.m., O.C.’s blood pressure had fallen to 95/58. Despite her worsening condition, Respondent delayed taking O.C. to the operating room (“OR”) for surgical exploration. At or around 9:40 p.m., O.C. was taken to the OR in an “unresponsive state,” and Respondent performed a supracervical hysterectomy. Following the surgery, blood was observed flowing from the incision in O.C.’s abdomen. Respondent chose not to reopen the surgical incision and instead ordered the application of pressure dressings to treat the bleeding. Even though O.C. was still bleeding, Dr. Lopez left the hospital at approximately 11:42 p.m. Upon her arrival to the intensive care unit (“ICU”), O.C.’s wound dressing was saturated with blood. At approximately 3:00 a.m., on July 26, 2017, ICU nurses observed blood “gushing” from the hysterectomy incision and from her vagina. Shortly thereafter, O.C. experienced cardiac arrest and expired. Experts Dr. Diebel, a highly accomplished physician, testified as a medical expert for Petitioner. Dr. Diebel became licensed to practice medicine in Florida in 1977.1 During his practice, he maintained board certification in obstetrics and gynecology from the American Board of Obstetrics and Gynecology. Dr. Diebel has not practiced medicine for two years (although he was still engaged in his medical practice at the time of the incident giving rise to these proceedings); has not actively managed a patient with postpartum hemorrhage in over three years; has not participated in any specialized simulated training in the treatment and management of postpartum hemorrhages; is not affiliated with a similarly-situated local community hospital; and has only been affiliated with trauma and teaching hospitals (where doctors and medical school residents are on site 24/7 and operating rooms are staffed, equipped, and immediately accessible around the clock). Dr. Feld, also a highly accomplished physician, testified as an expert for Respondent. Dr. Feld has practiced medicine in Florida since 1978. He has maintained board certification in obstetrics and gynecology from the American Board of Obstetrics and Gynecology since 1980. Dr. Feld testified that, with respect to each of the allegations contained in the Petitioner's Complaint, Respondent met the standard of care, because he practiced medicine with that level of care, skill, and treatment, which is recognized by a reasonably prudent similar physician as being acceptable and appropriate under similar circumstances. Standard of Care Failure to Take O.C. to the OR for Laceration Repair Dr. Lopez testified that he had a clear and independent recollection of the patient and the events surrounding her delivery and post-delivery treatment. She had been his patient for more than a decade, and he had delivered her first child. The patient was of Cuban heritage. Dr. Lopez knew the patient's husband, mother, and aunt, who is also a medical doctor. In light of his personal relationship with the patient and her family, Dr. Lopez was motivated to perform at his highest professional level to assure a good outcome. He canceled his office appointments and spent the day at the hospital with the patient and her family. O.C. suffered a small perineum tear2 and cervical lacerations following the delivery of her baby. Dr. Lopez performed an examination and repair of the lacerations in the delivery room. He encountered difficulties during the procedures because of inadequate lighting and a view obstructed by bleeding. He violated the standard of care when he failed to take O.C. to the OR when these issues arose. 1 Dr. Diebel testified that he is currently retired. 2 Perineal tears are damage to the area between the vaginal opening and anus that occur during vaginal delivery and can range in severity. Bleeding following a delivery is normal, but heavy bleeding should typically stop within a few minutes. Normally, if visualization is good, repairing a cervical laceration takes two or three minutes. Dr. Lopez repaired the small perineum tear and began the cervical laceration repair at 8:10 p.m. At 8:30 p.m., the medical records reflect that he remained at O.C.’s bedside and performed cervical repair. Nurse Gavagni has a clear recollection of the events in this case, due to the traumatic effect it had on her. This is the first and only maternal death she had experienced in her eight years working as an obstetrics nurse. Nurse Gavagni assisted Dr. Lopez during his examination and repair of O.C.’s cervical lacerations. Dr. Lopez requested that Nurse Gavagni use a metal retractor because he was having a difficult time seeing inside the vagina. Dr. Lopez requests the use of a metal retractor in cervical laceration repairs where he has difficulties seeing the upper and lower parts of the vagina. A retractor is an L-shaped device used to hold the upper part of the vagina. Nurse Gavagni testified that the laceration repair took a while to complete. As Dr. Lopez performed the repair, the bleeding was “kind of heavy.” Dr. Lopez attempted to reduce the bleeding by placing mini lap pads (“pads”) inside of O.C. to tamponade the cervix. Tamponading is a technique whereby pads can be placed inside the cervix, similar to a tampon, to determine whether bleeding is coming from the cervix or somewhere else. Nurse Gavagni stated that the delivery tray is usually prepared with ten pads on it. During the repair, 20 soaked pads were weighed to estimate O.C.’s blood loss. The records indicate that the weight of the soaked pads was 526 grams or ccs. This estimate did not include blood collected in the bag and under O.C.’s bottom. Dr. Diebel testified that the use of a pad to reduce bleeding for a moment to visualize the cervix and repair it is reasonable; however, the use of 20 pads suggests enough bleeding to move a patient into the OR to evaluate and perform the repair. Dr. Lopez claims that he only used one or two of the pads to tamponade the cervix, and the others were used to “blot” the vagina. Furthermore, he asserts that most of the pads were not “soaked” but “soiled.” Tr., pp. 393-395. Dr. Lopez’s testimony is not credible because the records clearly reflect that 20 “soaked” pads were weighed. Additionally, Nurse Gavagni confirmed that the soaked pads were used and weighed at or around the time that Dr. Lopez performed the repair. The evidence is clear and convincing that 20 pads were soaked after being used during the laceration repair because Dr. Lopez was having trouble visualizing the cervix due to heavy bleeding. In addition to bleeding, Dr. Lopez experienced issues with lighting in the delivery room during the laceration repair. Nurse Gavagni testified that the timer on one of the overhead lights was broken, and it had to be supplemented with a portable light on wheels. She described the portable light as a “spotlight.” During the repair, the portable light was knocked over several times, causing Dr. Lopez to ask everyone to leave the room. Furthermore, the charge nurse was called in to hold the timer on the broken light so that it would stay on. The evidence is clear and convincing that the broken light was problematic during laceration repair. According to Dr. Diebel, good, sustained lighting is necessary when repairing a cervical laceration. Additionally, there should be no obstruction between a physician’s vision and the cervix. Dr. Diebel also testified that lighting in an OR is better than that in a delivery room. This would certainly be true in a delivery room with a malfunctioning light. In this instance, Dr. Lopez needed to take O.C. to the OR to perform a thorough pelvic exam to ascertain the source of the bleeding. Dr. Diebel testified clearly and credibly that the exam and repair could not be performed adequately in the delivery room, given the circumstances. The continued bleeding and inadequate lighting should have prompted Dr. Lopez to take O.C. to the OR to ascertain the source of the bleeding. Dr. Lopez’s failure to do so violated the standard of care. In formulating his opinion in this case, Dr. Diebel acknowledged that the standard he applied was that level of care, skill, and treatment, which, in light of all the relevant surrounding circumstances, is recognized as acceptable and appropriate by a reasonably prudent, similar healthcare provider, or what the average obstetrician/gynecologist would do under similar circumstances. Dr. Lopez testified that the malfunctioning timer was part of a “decorative” light located over the head of the delivery bed. The light was not useful to him because he spent most of his time at the “south end” (the foot) of the bed. Dr. Lopez claims that the light may have been useful to Nurse Gavagni because she was probably taking the patient’s vitals and entering notes into the computer at the head of the bed. Dr. Lopez’s testimony is inconsistent and not credible. On the one hand, he testified that Nurse Gavagni assisted in the repair by holding the retractor. Then when questioned about lighting, he stated that she was probably taking vitals and entering notes. Nurse Gavagni testified clearly and credibly that she helped Dr. Lopez during the repair by holding the retractor. She never mentioned that the inadequate light interfered with her ability to take O.C.’s vitals or enter information in the computer. Her testimony about the lighting issue was in the context of Dr. Lopez’s exam and laceration repair. Dr. Feld testified that constant, adequate light, without obstruction, is necessary during a cervical laceration repair, and blood gushing out of the vagina can interfere with visualization of the cervix. Dr. Feld would take a patient to the OR for a laceration repair if he could not stop the bleeding. He admitted that he has no personal knowledge of what Dr. Lopez’s visualization was at the time of his repair of O.C.’s lacerations. The evidence is clear and convincing that Dr. Lopez had trouble visualizing O.C.’s cervix during the laceration repair due to bleeding and inadequate lighting. He violated the standard of care by failing to take O.C. to the OR to better evaluate the source of the bleeding and to perform the repair. Delay in Taking O.C. to the OR Following the laceration repair, O.C. continued to bleed and her condition quickly deteriorated. Still, Dr. Lopez delayed taking O.C. to the OR to address the bleeding. By at or around 8:40 p.m., O.C. had received fundal massage3 and various medications, including Pitocin4 and Hemabate,5 to stop the bleeding. Yet, she continued to bleed and began exhibiting deteriorating vital signs. At 8:45 p.m., O.C.’s blood pressure was 95/58, and she was vomiting. O.C. was hypotensive,6 tachycardic,7 hypoxic,8 and starting to turn gray. By 8:57 p.m., her blood pressure dropped to 66/46, and she was minimally responsive. If Dr. Lopez had, as he testified, repaired the cervical lacerations, sewed the perineal tear, and administered proper medications, and O.C. 3 Fundal massage, also called uterine massage, is a technique used to reduce bleeding and cramping of the uterus after childbirth. 4 Pitocin is a natural hormone that causes the uterus to contract and can be used after childbirth to control bleeding. 5 Hemabate is the brand name for the drug carboprost. Carboprost is a synthetic prostaglandin with oxytocic properties. It is used to reduce bleeding during postpartum hemorrhage. 6 Hypotensive is relating to or suffering from abnormally low blood pressure. 7 Tachycardia is a rapid heartbeat that may be regular or irregular, but is out of proportion to age and level of exertion or activity. 8 Hypoxia is a condition in which the body or a region of the body is deprived of adequate oxygen supply at the tissue level. continued to bleed, there was nothing left to do except take her to the OR. Continued attempts at treating O.C. were futile until the source of her bleeding was addressed. Dr. Diebel testified that had Dr. Lopez taken O.C. to the OR to evaluate the bleeding when attempting the laceration repair, as the standard of care required, he could have addressed O.C.’s deteriorating condition more appropriately. Since he did not take her to the OR at that time, he should have been prompted to take her at or around 8:30 p.m. Instead, Dr. Lopez waited another hour before making the decision to take O.C. to the OR. Dr. Lopez claims that from 8:45 p.m. to 9:25 p.m., he was waiting for an available OR and an anesthesiologist. This testimony is inconsistent with Nurse Gavagni’s recollection of the events and is also refuted by the medical records. Nurse Gavagni testified that there was no wait for an OR that evening. On the Labor and Delivery floor at Good Samaritan, there was always one OR ready for an emergent patient. On the evening of this incident, an OR was available for O.C. When describing the OR, Nurse Gavagni stated that it is “never left completely unprepared … most of it is set up, and then all the scrub tech does is go in and open the tools and scrub and get dressed.” She also noted that hysterectomy trays were readily available. The medical records do not reflect that there was any delay in taking O.C. in for surgery based on the unavailability of an OR. Dr. Diebel agreed with Nurse Gavagni’s testimony that most hospitals have one OR that is reserved and available for emergencies. Dr. Feld testified that when he worked at Good Samaritan, he could get emergency cesarean section patients into the obstetrics OR within 15 to 20 minutes. The evidence is clear and convincing that an OR was available for O.C. that evening. Dr. Lopez’s claim that he was waiting on an anesthesiologist between 8:45 p.m. and 9:25 p.m. also falls short of being accurate because the medical records reflect that anesthesia was not even called until 9:25 p.m. Dr. Lopez attempted to minimize O.C.’s failing condition by alleging that she stopped bleeding at certain times prior to being taken to the OR. However, Nurse Gavagni testified clearly and credibly that O.C. never stopped bleeding and continued having at least a moderate trickle, or a continuous light to moderate stream. This is clearly supported by the records which indicate a consistent deterioration of her vitals from 8:45 p.m. to 9:25 p.m. Dr. Lopez also attempted to minimize O.C.’s condition by noting that her blood pressure was 118/52 at 9:30 p.m., shortly before she was taken to the OR. Dr. Diebel believes that O.C.’s blood pressure reading at 9:30 p.m. was a spurious result. This is based upon the fact that two minutes before that reading, at 9:28 p.m., O.C.’s blood pressure was 67/32. Furthermore, for the preceding hour, her blood pressure had gradually worsened, without any signs of significant recovery. Dr. Diebel stated that the blood pressure reading at 9:30 p.m. did not make physiologic sense, given O.C.’s condition, and it certainly, in and of itself, did not mean that she should not have been taken into surgery. Dr. Lopez testified that in a postpartum hemorrhage, the rapid response team should be called if the patient experiences a change in vital signs and hemodynamic instability. Rapid response is a protocol that can be initiated when trying to prevent a patient from coding (dying). A rapid response team provides a physician with additional staff, like more nurses and/or other specialties, to assist in treating an emergent patient. In this case, the records reflect that rapid response was not called until 9:25 p.m., more than 40 minutes after O.C.’s vitals began to deteriorate. Thus, by Dr. Lopez’s own admission, there was a delay in treating O.C. O.C. was not taken to the OR until 9:38 p.m., approximately one hour and 45 minutes after the bleeding first began. When she arrived in the OR, she was cold, clammy, and had blood gushing from the vaginal canal. Dr. Diebel testified that by the time she was taken to the OR, O.C. was in irreversible shock. Once in the OR, O.C.’s surgery was further delayed because Dr. Lopez had to wait on his supervising physician, Dr. Alfred Tomaselli. Pursuant to a prior Board Order in effect at the time of this incident, Dr. Lopez was restricted from performing any surgical procedures without supervision by another board-certified obstetrician. Therefore, Dr. Lopez could not operate on O.C. until a supervising physician arrived at the OR that evening. Nurse Gavagni recalled calling Dr. Tomaselli from the OR to find out where he was. This is corroborated by the records which show that O.C. arrived at the OR at 9:38 p.m., but the first incision did not occur until 10:01 p.m. Dr. Feld believes that Dr. Lopez’s timing in taking O.C. to the OR was “absolutely perfect,” even though the outcome was unfortunate. He testified that O.C.’s condition would not have changed if Dr. Lopez had taken her into the OR sooner because she was already in a downward spiral, due to DIC.9 He claims that O.C. had signs of DIC as early as her admission to Good Samaritan. Dr. Diebel disagrees with Dr. Feld’s belief that O.C. was in DIC at the time of her admission, since there is no evidence in the medical records to 9 DIC, or disseminated intravascular coagulation, is a condition affecting the blood's ability to clot and stop bleeding. support that position. Additionally, he stated that he was not convinced that O.C. experienced DIC prior to or after the hysterectomy. Dr. Diebel vehemently disagreed with Dr. Feld’s assertion that taking the patient to the OR earlier would not have made any difference in her outcome. He testified clearly and credibly that O.C.’s condition deteriorated steadily, which could have been avoided had Dr. Lopez taken her to the OR sooner. Dr. Lopez attempted on several occasions to place blame on Good Samaritan Hospital for lack of preparedness related to treatment for postpartum hemorrhage. He also emphasized that Good Samaritan is a community hospital lacking the capabilities of an academic center like Orlando Regional, or a trauma facility. Yet, the record clearly reflects that nothing prevented him from taking O.C. to the OR sooner. Additionally, no evidence was offered to show that Good Samaritan lacked the necessary medications, infrastructure, or equipment to adequately address O.C.’s condition. In light of all of the above, the evidence is clear and convincing that Dr. Lopez fell below the standard of care by not taking O.C. into the OR sooner. Performance of Supracervical Hysterectomy Instead of Total Abdominal Hysterectomy At 9:40 p.m., O.C. consented, in writing, in both English and Spanish, to a total abdominal hysterectomy (“TAH”). O.C. and her husband were made aware that, after a TAH, they would not be able to have any more children. They responded that they did not intend to have any more children. The consent O.C. signed included an acknowledgement that other surgical procedures might become necessary. A TAH is the surgical removal of the cervix and the uterus. Instead of performing a TAH, Dr. Lopez performed a supracervical hysterectomy. A supracervical hysterectomy is the surgical removal of the top part of the uterus, leaving the cervix in the patient. Dr. Lopez testified that he performed a supracervical hysterectomy because it is a quicker procedure than a TAH. This statement is inconsistent with testimony he gave in a prior deposition, wherein he stated that a supracervical hysterectomy is “more surgery” and takes more time to perform than a TAH. When confronted with this discrepancy, Dr. Lopez claimed that his prior testimony was “wrong” and must have been a “typo” on the part of the court reporter. However, in the deposition, Dr. Lopez provided a detailed explanation as to why a supracervical hysterectomy takes longer than a TAH, clearly showing that it was not a typo. Dr. Lopez does not have ICU privileges at Good Samaritan. Accordingly, he delegated the follow-up care for O.C. to Dr. Reynold Duclas, the anesthesiologist who was present in the OR for the surgery and afterwards, and to Dr. Tanvir Salaam, the intensivist who appeared via telemedicine. Dr. Lopez then left Good Samaritan to return home to find some clean clothes. Dr. Lopez believed the patient was stable and in good hands when he left Good Samaritan. Dr. Lopez stayed near his cell phone when he returned home and was available when he received a call from the hospital at 3:04 a.m. He returned to the hospital where he found O.C. in the ICU bed and the code was in progress. He ended the code because the patient had died. While O.C. was in the ICU, blood was drawn for lab work at 1:20 a.m. At about 2:22 a.m., the ICU received an emergency critical value telephone call that the patient’s lab work was abnormal, and that she had developed DIC. Dr. Lopez did not receive a call from the lab or the hospital until the 3:04 a.m. call described above, which was when the patient was coding. An autopsy was performed that confirmed O.C. had died from DIC. Dr. Lopez testified, and the evidence reflects, that while he was actively managing the patient, no bloodwork had indicated she was suffering from DIC. This testimony conflicts with Dr. Feld’s testimony that there was nothing Dr. Lopez could have done because O.C. was already in a “downward spiral” due to DIC. Dr. Lopez testified that, based on lab work performed at 1:20 a.m., “the patient had never sustained a hypoxic injury to her liver, she had not sustained a hypoxic injury to her kidneys, that she had not sustained, on the basis of the clinical parameters, any irreversible damage from the time of the surgery.” The patient had, in fact, showed: evidence that her brain was functioning … [s]he started to show purposeful movement and followed instructions for movement by a nurse that her cerebral cortex and her mechanical physical being was capable of movement from the brain to the muscles. That her kidney function was improving was evidenced by the fact that the blood that she had once sustained in her urine had cleared and she was making urine. At no time did the delay in taking her to the operating room cause irreversible hypoxia, irreversible unsustainable conditions that would lead to her death. Dr. Diebel testified that Dr. Lopez should have performed a TAH in this case, because it would have prevented the potential for any additional bleeding following the surgery. He explained that after performing a TAH, a physician must sew together the front wall and back wall of the vagina. He described this as “very straightforward,” and less likely to lead to “bad bleeding.” In comparison, when performing a supracervical hysterectomy, the physician must sew over the cervical stump, which consists of more substance to cinch down and suture. Additionally, based on the circumstances during the laceration repair, Dr. Diebel noted that it was not clear that the cervix was not still a source of bleeding. This complements and supports his opinion that a TAH should have been performed to ensure cessation of bleeding. Dr. Diebel testified clearly that the appropriate standard of care required that Dr. Lopez perform a TAH and not a supracervical hysterectomy. Another reason Dr. Lopez offered for performing a supracervical hysterectomy was that the procedure was less likely to expose another organ to injury. He claimed that O.C. had a hematoma involving the lower uterine segment, and this affected his decision not to perform a TAH. In his operative note (“op note”) for this procedure, Dr. Lopez did not identify a hematoma as the reason for performing a supracervical hysterectomy over a TAH. The only mention of a hematoma appears after the removal of the uterus. Therefore, it could not have affected Dr. Lopez’s decision-making in performing a supracervical hysterectomy. Dr. Feld does not remember if there was a hematoma noted in Dr. Lopez’s op note, but he believes that performance of a supracervical hysterectomy was appropriate because it is quicker and safer, given the swelling and blood clots around the cervical vaginal junction following delivery. Dr. Diebel challenged Dr. Lopez’s claims that a hematoma on the lower uterine segment affected his decision to perform a supracervical hysterectomy. Dr. Diebel pointed out that the op note specifically states that the bladder flap was taken down easily, and a hematoma was not noted until after Dr. Lopez removed the top of the uterus. As a result, Dr. Lopez could have performed a TAH without concern of a hematoma. When asked why the hematoma appeared in his op note after the uterus was already removed, Dr. Lopez claimed that his dictation may not have been “in sequence.” He testified that “a dictated operative note may indicate abnormal findings that may not be in sequence to the procedure that is performed.” He also stated that whether an op note is written in sequence “depends on the op note and depends on the circumstance.” Dr. Feld disagreed with Dr. Lopez and stated that op notes should be dictated in the sequence that the procedure is performed, from start to finish. Dr. Diebel testified that he has never heard of a surgeon dictating an op note that is not in sequence with the order in which the surgery was performed. He does not know how a surgeon would “get it out of order.” Dr. Lopez’s attempt to justify his decision to perform a supracervical hysterectomy instead of a TAH is clearly self-serving and discredited by the medical records and expert testimony of Dr. Diebel. The evidence is clear and convincing that Dr. Lopez fell below the standard of care by performing a supracervical hysterectomy instead of a TAH. Leaving the Hospital Dr. Lopez left the hospital immediately following the surgery, even though O.C. was still in critical condition. Nurse Gavagni testified that during O.C.’s surgery, the anesthesiologist was unable to obtain a blood pressure and could only report a heart rate and respiratory rate. This suggests that O.C.’s condition was extremely perilous. Dr. Lopez completed the procedure at or around 11:00 p.m. Soon after the surgery, while O.C. was still in the OR, Nurse Gavagni noticed blood coming from the incision site and reported it to Dr. Lopez. Dr. Lopez opted not to reopen and instructed Nurse Gavagni to pressure dress the wound and put ice on it. He also ordered an abdominal binder to be applied. Despite the bleeding and critical condition of his patient, Dr. Lopez left the hospital at or around 11:39 p.m. At 11:42 p.m., O.C. was transferred to the ICU. When O.C. arrived in the ICU, the dressing on her wound was soaked with blood. In the ICU, O.C. came under the care of Dr. Salaam, the intensivist. Dr. Salaam was available via telemedicine and not physically present at the hospital. Dr. Lopez testified that he left the hospital because the leg of his scrubs was contaminated with blood, and his left sock and shoe also had blood in them. He claims that there were no other scrubs available to him at Good Samaritan. He did not check to see whether there were any scrubs available on other floors of the hospital, and he did not call anyone in the hospital to ask for clean scrubs. Dr. Feld testified that he would not have left the patient that evening. Also, he would not have left the hospital and gotten into his car with blood all over his scrubs. Additionally, he has never been in a situation where he could not access a clean pair of scrubs at the hospital and believes that most hospitals have extra scrubs for physicians. Dr. Diebel stated that hospitals normally have scrubs “everywhere”-- in the emergency room, in the main OR, in radiology, etc. He believes that Dr. Lopez could have obtained clean scrubs without having to leave the hospital that night. In his long career, Dr. Diebel never had to go home to change his scrubs. Dr. Diebel testified that Dr. Lopez violated the standard of care when he left the hospital that evening, given O.C.’s critical condition. Although O.C. was taken to the ICU, no one on the ICU team was a surgeon. Additionally, the intensivist in charge that evening was not even physically present in the hospital. Dr. Lopez should have remained at the hospital in case O.C. had to be taken back into surgery because he was her physician and the only surgeon present. Dr. Lopez maintained that pursuant to Florida Administrative Code Rule 64B8-9.007, he was permitted to delegate some of his duties to another qualified medical doctor, which is exactly what he did in this case when he left the patient in the ICU. He also noted that the anesthesiologist volunteered to stay with the patient following the surgery to monitor her recovery. Rule 64B8-9.007, which relates to Standards of Practice and Delegation of Duties, states, in pertinent part, that “the operating surgeon can delegate discretionary postoperative activities to equivalently trained licensed doctors of medicine or osteopathy … . Delegation to any health care practitioner is permitted only if the other practitioner is supervised by the operating surgeon or an equivalently trained licensed doctor of medicine or osteopathy.” Dr. Lopez testified that he appropriately delegated responsibility to the ICU intensivist and anesthesiologist. However, he also admitted that neither the intensivist, nor the anesthesiologist, was a trained surgeon who could have taken the patient back to the OR. In fact, there were no surgeons in the ICU at that time. Thus, his argument that he delegated to an equivalently trained doctor fails. The evidence is clear and convincing that Dr. Lopez fell below the standard of care by leaving the hospital while O.C. remained in critical condition. Prior Discipline At all times material to this incident, Dr. Lopez was restricted from performing any surgical procedure without a supervising physician, pursuant to a prior Board Order. The prior Board Order, related to DOH case number 2014-15022 (“2014 case”), resulted from allegations that Dr. Lopez violated the standard of care in his treatment of two obstetrics patients. The 2014 case involved two obstetrics patients who suffered complications from postpartum hemorrhage. The Administrative Complaint alleged, among other things, that Dr. Lopez committed medical malpractice by failing to timely assess, diagnose, and perform exploratory surgery. Pet. Ex. 6. As is true in this case, one of the patients in the 2014 case died. When asked about the 2014 case, Dr. Lopez was evasive and defensive. He claimed that he did not recall why his license was restricted. Then, when asked several times whether the 2014 case resulted in a patient’s death, he refused to answer directly, until prompted by the ALJ. Dr. Lopez was also disciplined by the Board in 2003, in DOH case number 2003-13635 (“2003 case”). The Administrative Complaint in that case alleged that Dr. Lopez fell below the standard of care in his performance of a uterine dilation and curettage (D&C). Specifically, the Administrative Complaint alleged that Respondent failed to perform complete evacuation of a patient’s uterus and failed to give appropriate follow-up care when the patient spontaneously expelled fetal tissue. As a result of the 2003 case, a fine of $10,000 was imposed on Dr. Lopez, and he was required to complete CMEs (continuing medical education credits) and perform community service. Despite Dr. Lopez’s history with the Board and O.C.’s death, he refused to take direct responsibility for any of his shortcomings. When asked whether he felt at all responsible for O.C.’s death, Dr. Lopez placed the blame on the ICU staff and hospital system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, enter a final order: Finding that Respondent, Berto Lopez, M.D., violated section 458.331(1)(t), Florida Statutes (2017), as charged in Petitioner’s Amended Administrative Complaint; Suspending Respondent’s license to practice medicine in the State of Florida and limiting his practice following his term of suspension as set forth in paragraph 138 above; and Imposing costs of investigation and prosecution. DONE AND ENTERED this 3rd day of December, 2020, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2020. COPIES FURNISHED: Corynn Colleen Alberto, Esquire Sarah E. Corrigan, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Elena Ris, Esquire 205 Chelsey Circle Alpharetta, Georgia 30004 (eServed) Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3565 (eServed) Claudia Kemp, J.D., Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin C-03 Tallahassee, Florida 32399-3253 (eServed)
The Issue Whether or not Respondent administered a legend drug other than in the course of his professional practice as a dentist, failed to maintain written dental and medical history records justifying the course of treatment, and failed to practice dentistry within the minimum standards of performance in diagnosis and treatment when measured against the prevailing peer community in violation of Subsections 466.028(1)(y), (m) and (q), Florida Statutes and, if so, what if any, administrative penalty should be imposed.
Findings Of Fact During times material hereto, Respondent, Kleyn B. Russell, Jr., held a license as a dentist in Florida, having been issued license number DN 0008401 by Petitioner, Department of Professional Regulation. During times material hereto, Respondent practiced dentistry in Florida. Bethany Morris (Bethany), a three year old female patient of Respondent, weighed 34 pounds when she was treated by Respondent. Bethany was born with hemangiomas (port wine scars) on the majority of her body. Cheryl Morris, the mother of Bethany, brought Bethany to Florida to undergo laser surgery treatment to remove hemangiomas, following consultation with laser surgery experts in California, Duke University in North Carolina and with several practitioners in the Midwest and in Florida. Bethany Morris' first laser surgery was performed by Dr. Massad on March 9, 1990. Between March 9, 1990 and May 15, 1990, Cheryl Morris had discussions with Dr. Massad and Jeffrey Waterer, a business representative for the laser equipment which was used in the surgical procedures for Bethany, regarding possible alternatives to general anesthesia, specifically a dental nerve "block". On or about May 15, 1990, Respondent was consulted and retained by Dr. Massad to provide a trigeminal facial nerve block to Bethany's face to alleviate any discomfort she may experience during laser surgery to remove the port wine scars on her face and lips. Respondent produced a trigeminal facial nerve block on Bethany on three separate occasions by using local anesthesia. Local anesthesia is the loss of sensation of pain in a specific area of the body, generally produced by a topically applied agent or injected agent without causing loss of consciousness. Rule 21G-14.001, Florida Administrative Code. 1/ On May 15, 1990, Respondent administered 12.5 carpulets of 2% Lidocaine with 1:100,000 Epinephrine to Bethany. On or about July 11, 1990, Respondent administered 11 carpulets of 2% Lidocaine with 1:100,000 Epinephrine to Bethany. On or about August 22, 1990, Respondent administered 8.5 carpulets, 280-306 mg., of 2% Lidocaine with 1:100,000 Epinephrine to Bethany within a one- hour period. Lidocaine is a medicinal drug. Section 465.003(7), Florida Statutes. On or about August 22, 1990, Bethany began to experience seizures, respiratory difficulty and respiratory arrest shortly after Respondent administered the last injection of local anesthetic to her. Bethany stopped breathing and Dr. Massad and Respondent began cardiopulmonary resuscitation. These efforts were unsuccessful and "911" was called and Bethany was transported to Mease Hospital in Dunedin, Florida. Bethany Morris died on August 25, 1990, and the cause of her death was anoxic encephalopathy due to cardiac arrest due to Lidocaine toxicity. Prior to her death, Bethany exhibited symptoms indicating that Respondent injected Lidocaine to her facial area in an amount in excess of the manufacturer's recommended dosage for a patient of her age/size. Specifically, on the first occasion that Respondent administered the nerve block, Bethany had to be repeatedly slapped in the face to avoid slipping into a coma. On the second occasion following Respondent's administration of Lidocaine to effect a nerve block, Bethany had to be carried to her car and slept from Respondent's office in Tampa to her temporary residence in the Brandon area. On three separate occasions, specifically May 15, 1990, July 11, 1990 and August 22, 1990, Respondent administered 2% Lidocaine with 1:100,000 Epinephrine to his patient, Bethany Morris, in an amount that exceeded the manufacturer's maximum recommended dosage. Respondent failed to recognize that special calculations were required when administering local anesthetics to children. During the administration of local anesthetics to Bethany, Respondent admitted that he failed to comprehend the correct amount of anesthetic that could be safely administered to her. Respondent's admission was borne out by his calculations of the amount of Lidocaine he administered to Bethany. Respondent's administration of 280 mg. - 306 mg. of 2% Lidocaine with 1:100,000 Epinephrine to Bethany on August 22, 1990, was an amount in excess of the recommended maximum dosage for a patient of Bethany Morris' size. Respondent failed to maintain records in his office indicating his administration of anesthesia to Bethany Morris. Respondent failed to properly recognize, diagnose and treat Bethany Morris once she began exhibiting signs of respiratory depression which led to cardiac failure due to Lidocaine toxicity. Respondent has recently been the subject of prior disciplinary action by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order suspending Respondent's license to practice dentistry in Florida for a period of five (5) years and prior to his reinstatement to practice dentistry, Respondent take and successfully complete continuing education courses in the administration of legend drugs in the course of his professional practice of dentistry under such terms and conditions as the Board of Dentistry may impose. RECOMMENDED this 29th day of August, 1991, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 29th day of August, 1991.
The Issue Whether Respondent violated section 456.072(1)(v), Florida Statutes (2018), by engaging or attempting to engage in sexual misconduct.
Findings Of Fact The Department is the state agency charged with regulating the practice of osteopathic medicine and prosecuting disciplinary actions on the Board's behalf, pursuant to section 20.43 and chapters 456 and 459, Florida Statutes. Dr. Van Buskirk is an osteopathic physician. He is licensed to practice osteopathic medicine in the state of Florida pursuant to license number OS 5899, which has been active in good standing for over 30 years. Prior to the Complaint, he had never been disciplined or had a disciplinary action brought against him. V.C. was a patient of Dr. Van Buskirk from December 12, 2017, to August 28, 2018. As reflected in V.C.'s medical records, she sought treatment for chronic and acute pain, primarily in her neck, right upper leg, and right groin. V.C.'s right leg and groin issues caused her pain when walking, weakness on her right side compared to her left, and inability to lay in bed on her right side. V.C. was referred to Dr. Van Buskirk by a patient who had been treated by him and found the treatment helpful. V.C. was treated by Respondent once or twice a month, totaling 13 visits over the nine-and-one-half-month span. At each visit, V.C. first met with an assistant who obtained current information from V.C. regarding her pain issues and medical history/medication. After Respondent reviewed the information, he proceeded to perform osteopathic manipulative treatment on V.C. from the top down, meaning he would start on V.C.'s neck and work his way down. Respondent spent 35 to 45 minutes treating V.C. each visit. V.C.'s 13 appointments with Respondent were on the following dates: December 12 and 22, 2017; January 11 and 30, 2018; February 27, 2018; March 27, 2018; April 17, 2018; May 8 and 29, 2018; July 10 and 31, 2018; and August 14 and 28, 2018. V.C. described Dr. Van Buskirk as completely professional in his treatment of her for the first ten visits, despite providing treatment each time in an admittedly sensitive area, her groin. Respondent's practice is to ask patients to wear comfortable clothing for their treatment visits that will allow him to access the areas needing treatment. V.C., for example, usually was dressed in leggings over underwear and a tee shirt. For some of the visits, Respondent was able to provide the osteopathic manipulation, even to the upper leg and groin area, through the leggings. Sometimes, however, the leggings or their seam placement interfered with his ability to adequately sense the tightness, relaxation, and contraction of muscles in the treatment area. For some visits, then, he asked V.C. for permission to go underneath the leggings with one hand, which she gave each time requested. Respondent did so several times during the first ten visits, lifting her leggings at the waistband and putting one hand down above the middle of her thigh between the leggings and V.C.'s panties. V.C. said that each of these times, Respondent was completely professional, never saying or doing anything inappropriate. V.C. also confirmed that Respondent was completely professional on visit ten on July 10, 2018, when her recollection was that she had to remove clothing to provide access for Respondent to administer a cortisone shot in her right upper thigh. V.C.'s eleventh visit was on July 31, 2018. According to V.C., unlike her other visits, she went to this appointment during a lunch break from work, and she was wearing shorts instead of leggings. The shorts were bulky, so she removed them when it came time for her to lie down on the exam table, face up, for her upper leg and groin area treatment. Respondent testified that his consistent office practice is to offer patients scrubs and a chaperone when he requests them to remove articles of clothing for treatment. He recalled having to ask V.C. to remove bulky shorts on one occasion so he could provide treatment to her upper thigh and groin area. Though Respondent did not specifically recall offering her scrubs or offering to have someone else come in the treatment room, his belief was that he acted in accordance with his consistent practice and offered both scrubs and a chaperone. V.C. did not dispute this account.4 At the hearing, V.C. testified that she was lying face-up on the exam table, with Respondent standing on her right side at about mid-thigh, so that her hip was to his left and her feet were to his right. From this position, V.C. testified that Respondent abruptly "pulled" or "snapped" her underwear from right to left, exposing her genital area, and rested the heel of his left palm5 on her pubic area, while he massaged her right thigh with his right hand. In describing the positioning of his left hand in more detail, V.C. said that the base of his thumb was on her pubic hair, and the base of his pinky was just above her labia. She said Respondent rested the heel of his left palm on her pubic hair for two to three minutes (but acknowledged that in an earlier recounting of this incident in 2018, her estimate was one to two minutes). 4 Petitioner's Proposed Recommended Order (PRO) contains a number of inaccurate citations to the record evidence. For example, Petitioner proposed findings of fact to the effect that on July 31, 2018, Respondent neither offered a chaperone nor had one present, and that Respondent did not offer surgical scrubs to V.C. (Pet. PRO at 3, ¶¶ 4, 6). None of the record citations offered as support for these two proposed findings contain testimony that Respondent did not offer a chaperone or that Respondent did not offer scrubs to V.C. Instead, they contain Respondent's testimony that he believes he acted in accordance with his consistent office practice to make both of those offers that day, and V.C.'s testimony that there was not a chaperone in the room and that she took off her bulky shorts and lay down on the exam table (wearing a tee shirt and panties). V.C. did not testify that she was not offered a chaperone or scrubs. 5 V.C. did not use the word "heel," but said "this part" of the palm, while pointing to the lower part of the palm above the wrist, which is the heel. V.C.'s description, though very detailed, is physically impossible in a number of respects, and as such, cannot be credited. To begin with, it is difficult to envision V.C.'s panties being "pulled" from right to left by someone standing on her right side. That would entail twisting the pulling hand to grasp the panties with the fingers and pull the panties to the side away from where the person is standing. Assuming the left hand were used to "pull" the panties from right to left, would that hand have remained holding the panties on the left side so as to expose V.C.'s pubic area? If so, it is difficult to imagine how the heel of the left palm could have rested on V.C.'s pubic hair. Further complicating the picture described by V.C., for the base of the left thumb to be at the top of the resting palm on V.C.'s pubic hair, with the base of the pinky at the bottom where the pubic hair ends, just above the labia, that left hand would have to contort 180 degrees from where the panties had been pulled (to the left side of V.C.'s pubic area). For the heel of the left palm to be resting on V.C.'s pubic area, with the base of the thumb high and the base of the pinky low, the fingers of the left hand would be pointed to V.C.'s right side at about the right upper thigh, rather than on the left side of her pubic area.6 The physical impediments fare no better if one were to assume that the panties were pulled left to right by Respondent's right hand. The problem is that with Respondent standing on Petitioner's right side, it is impossible to envision either left or right hand "pulling" panties away from right to left. And neither scenario supports V.C.'s description of what happened after the panties were pulled from right to left, leaving her exposed. V.C.'s description 6 Apparently recognizing the flaw in V.C.'s detailed description, Petitioner recharacterized V.C.'s testimony, suggesting that V.C. testified it was the base of Respondent's right thumb that was at the top on her pubic hair, with the base of his right pinky at the bottom just above her labia. (Pet. PRO at 3, ¶ 7). But that is not what V.C. said. She clearly was describing the positioning of Respondent's left hand. And, although Petitioner's version would help with this particular physical difficulty, it does not square with V.C.'s testimony that while the heel of Respondent's left palm rested on her pubic area, with base of thumb at the top and base of pinky below, Respondent put his right hand on her right upper thigh and started massaging her leg. of what Respondent did with his left hand defies physics. But V.C. also said that while the heel of Respondent's left hand rested on her pubic area, Respondent put his right hand on V.C.'s right thigh and began massaging her leg. With both of Respondent's hands now occupied on V.C.'s right side (heel of left palm resting on pubic area, base of left thumb high, base of left pinky low, fingertips at about V.C.'s upper right thigh; right hand on right upper thigh massaging her leg), neither hand could have been holding V.C.'s panties to the left side of her pubic area so as to keep her exposed. While V.C. described Respondent's pulling or snapping of her panties from right to left to expose her, followed by him resting the heel of his left palm on her pubic hair while he massaged her right thigh with his right hand, she could not recall whether, when, or how her panties returned to their rightful position. But elastic on panties makes a snapping sound when it returns into position after having been displaced. If V.C.'s panties had been pulled to the side exposing her pubic area, one would expect a "snapping" sound when the panties were released and the elastic would snap back into place. V.C.'s description did not seem to add up for this reason, too. V.C. said that she did not react to Respondent's actions by saying or doing anything, such as expressing her discomfort or distress, or stopping the treatment session early. Instead, V.C. said that she was in shock, so that after the one-to-two or two-to-three minute left heel-of-palm rest on her pubic hair, Respondent completed his regular course of treatment for another five or more minutes. V.C. acknowledged that Respondent never said anything inappropriate to her at any point. Respondent flatly denied V.C.'s account of inappropriate moving of her panties or inappropriate touching of her pubic area. According to Respondent, he never moved V.C.'s panties, but instead, provided the same osteopathic manipulation to her upper leg and groin area as he had at every other visit, except this time V.C. had removed her bulky shorts, while remaining covered by her panties. Respondent never observed any discomfort or distress by V.C.; and, as she acknowledged, she never expressed discomfort or distress. V.C. described her own uncertainty at the time as to whether what she perceived had been a mistake or an accident. She never said anything to Respondent or to his staff after the treatment session. She went to the receptionist desk, paid, and scheduled her next appointment for two weeks later, on August 14, 2018. V.C.'s testimony was inconsistent regarding whether she spoke with anyone about the July 31, 2018, treatment session between that day and her next appointment. She testified that she did not report the incident to anyone during the two weeks after the treatment session on July 31, 2018. But she also said that she spoke with her friend, T.B., for whom she works, that afternoon (July 31, 2018) when she returned to work, because, according to V.C., she was visibly distressed and T.B. asked her what was wrong. Petitioner offered T.B.'s testimony at the hearing to corroborate V.C.'s testimony. However, T.B. testified that he had a conversation at work with V.C. "in approximately November" 2018 that he initiated, not because he had observed V.C. in obvious distress, but because her performance was off that day. To explain why her performance was "off," she told T.B. she was upset because she had an experience at the doctor's office that was bothering her. She gave little detail, saying only that the doctor had touched her inappropriately. According to T.B., "she did say that it wasn't sex, that it was just inappropriate touching." (Tr. 120). V.C. had been seeing a psychiatrist for medical management of depression and insomnia. At her appointment on August 3, 2018, three days after the July 31 treatment session with Respondent, V.C. did not mention any incident to her psychiatrist. V.C. went to her next appointment with Respondent on August 14, 2018. She did not say anything to Respondent or his staff regarding the July 31 treatment session. Respondent provided the same osteopathic manipulative treatment he had performed the previous 11 visits. V.C. testified that Respondent was completely professional in both actions and words during the August 14 treatment session. After the session, she paid and scheduled her next appointment for August 28, 2018. V.C. went to the August 28 treatment session wearing leggings and a tee shirt. Respondent provided the same osteopathic manipulative treatment he had performed the previous 12 visits. When he started the treatment to her upper thigh and groin area, he was having difficulty sensing a particular tendon in the lateral groin area, to the right side of her groin. He requested permission to put one hand underneath her leggings, as he had previously done for some of the treatments to this area, and she gave her permission as she had previously. Respondent testified that when he went to lift up V.C.'s leggings at the waistband, he accidentally lifted both her leggings and her panties, sliding his hand down towards her right thigh to position his sensing finger on the tendon to the right side of her groin. He did not realize that he had accidentally lifted her panties too until he put his palm down to sense the tendon just to the right of her groin, a little to the left of her right hip bone, and he felt skin under his palm instead of the cloth of her panties. He immediately started removing his hand. At the same time Respondent realized his palm had come to rest on V.C.'s skin, V.C. realized the same thing. She immediately said, "I am not comfortable with this." Respondent had already begun removing his hand as V.C. spoke. At the hearing, V.C. described this incident the same as Respondent did, with one exception. According to V.C., Respondent lifted her leggings and underwear with his right hand, then slid his left hand down the center, and that his palm came to rest on her pubic area, with his middle finger extending to where the pubic hair ends, just above her labia. She agreed that Respondent's palm made contact with her for just an instant. She said that as soon as she felt the contact, she spoke up and he immediately removed his hand. Respondent emphatically denied that he made contact with V.C.'s genitals or pubic area. He described with great specificity exactly where he had put his hand, and why. For the work he was trying to perform on V.C.'s lateral groin, he was trying to sense a tendon located about one to one and one-half inches to the left of V.C.'s right hip bone (on the front part of the pelvis), at about belt-line (perhaps a low-slung belt). At that location, his hand was four inches to the right of the middle of the pubic bone, which is where his hand would have been according to V.C.'s description. Respondent's detailed explanation, which he demonstrated during the hearing, was credible and is credited. Other than V.C.'s one statement—"I am not comfortable with this"— she said nothing to Respondent about the incident. V.C. did not stop the treatment session early. Instead, Respondent completed the osteopathic manipulative treatment. V.C. acknowledged that Respondent never said anything inappropriate or unprofessional during the August 28 treatment session or at any previous session. V.C. testified that after the treatment session, she did not say anything to staff about the incident, but paid and ran out of the office.7 When she got to her car, she telephoned Maureen Maguire, who is her friend and, also, her gynecologist. V.C. testified that she told Dr. Maguire about the incident that had just occurred, and about the earlier incident. V.C. recalls Dr. Maguire telling V.C. about a similar incident she had experienced when she was going to a massage therapist. At the hearing, Dr. Maguire confirmed that V.C. called after the second incident to tell her about both incidents. V.C. told Dr. Maguire that 7 Respondent's staff credibly disputed V.C.'s claim that she ran out of Respondent's office. V.C. did not show any sign of distress. the first time, Respondent "was doing a manipulation in her groin area and that his hand went where it should not have gone." (Tr. 107). V.C. told her she went back to give Respondent another chance because she had come to love and trust him, "and it happened again but it was even more aggressive of hand in the wrong place, like down her underwear exactly, on the second time." (Tr. 108). Dr. Maguire testified that V.C.'s description gave her the impression that the first time, Respondent's hand ended up in the wrong place on top of V.C.'s clothing, because V.C. made a point of saying the second time his hand went under her underwear. Dr. Maguire said that V.C. was upset, so she tried to talk V.C. through it by sharing the "similar" incident that happened to her with a massage therapist. Dr. Maguire said she told V.C. that her biggest regret was that she had done nothing about it. As a result of her experience, she urged V.C. to report the incidents. Dr. Maguire said that V.C. was looking to her for advice, asking how to go about reporting it. Dr. Maguire gave V.C. a couple of suggestions, telling her she should report the incidents to law enforcement and the Department.8 V.C. testified that she also disclosed the August 28 incident to V.D., a friend of her son's who was living in her house temporarily while between leases. According to V.C., when she got home that day, V.D. saw her distress and asked her what was wrong, so she told him about the incidents, and he offered his sympathy and attempted to comfort her. V.D.'s testimony by deposition was offered in evidence by Petitioner to corroborate V.C.'s testimony regarding her disclosure to him. V.D. confirmed that he found V.C. distressed one day and asked her what was wrong. He said V.C. described a single incident in which her doctor touched her vagina inappropriately. V.C. also told V.D. that after the inappropriate touching, the 8 V.C. first testified that she recalled Dr. Maguire urging her to report the incidents, but that Dr. Maguire did not know how V.C. should proceed. V.C. later testified that she does not recall even discussing the subject of reporting the incidents with Dr. Maguire. doctor "made a comment to her about, like, having a hard time resisting her and not being able to control himself around her. Something to that effect." (Pet. Ex. 7, p. 15-16). V.D. later clarified that he did not recall the exact wording used by V.C. to describe what the doctor had said to her, "but it was something to the effect of that he had desired her for a while, or that he had a hard time resisting her. Basically saying that—justifying what he—the assault by saying, I'm physically or sexually attracted to you, is the effect of what he said to her."9 (Pet. Ex. 7, p. 21-22). V.D. testified that V.C. asked him what she should do, and they discussed reporting the incident to law enforcement. V.C. told him she intended to report it to the police, and later told him that she had reported it. V.C. did not report the incident(s) to the police or to the Department or Board. She explained that she felt guilt and shame, and did not want to relive the incidents as she would have to in order to report it. She blamed the incidents on intensification of "crying jags" that she had experienced before. She also blamed the incidents for a return of insomnia, which she said she had gotten under control. On October 12, 2018, V.C. told her psychiatrist, Dr. McKinnon, about the incidents during her regular appointment with him. His notes reflect some inconsistencies in the details of the incidents.10 Following her disclosure, Dr. McKinnon's notes reflect that he told V.C. he had to report the 9 Even though Petitioner offered V.D.'s deposition testimony into evidence, Petitioner did not ask its witness, V.C., to address V.D.'s testimony regarding the provocative statements V.C. attributed to Respondent. Instead, V.C. admitted at the hearing that Respondent made no inappropriate or unprofessional statements that day or any other day. 10 For example, Dr. McKinnon's notes reflect that V.C. told him that when Respondent put his hand under her leggings and panties on August 28, she immediately stopped the examination and left the office. At the hearing, V.C. did not dispute whether the notes accurately reflected what she told Dr. McKinnon. Instead, V.C. attempted to reconcile the discrepancy, suggesting the version in the notes was virtually the same as what happened because she "stopped [Respondent's] hand from being there, and then left the office a couple of minutes later." (Tr. 85). V.C.'s attempt to smooth over this discrepancy was unpersuasive. The notes also reflect that V.C. told Dr. McKinnon that she had consulted with an attorney who would not take her case. At the hearing, V.C. said that she did not recall telling Dr. McKinnon that, but she did not deny that the statement was true. incidents to the Florida Board of Medicine, and that she should report the matter to law enforcement or another attorney to explore her legal rights. Dr. McKinnon's notes contradict V.C.'s testimony about the effect of the incidents on her insomnia and crying jags. As of October 12, 2018, V.C. reported that, overall, the medications previously prescribed by Dr. McKinnon for management of her depression and insomnia had been helpful. In particular, V.C. reported that the dosage of one medication, which she "continues to take" twice a day, had effectively "reduced her crying spells[.]" (Pet. Ex. 1, p. 1). V.C. had been seeing Dr. McKinnon for medication management of depression and insomnia since well before the incidents, and the October 12, 2018, notes, addressing her positive progress since her previous appointments (the most recent of which was August 3, 2018), do not support her testimony that these conditions had been under control before the incidents or that they worsened because of the incidents. After the October 12, 2018, visit, Dr. McKinnon reported what V.C. had told him about the incidents to the Department, which began an investigation. The Department also reported the incidents to the Sarasota Police Department which conducted an investigation, but no charges resulted. V.C. also told her long-time physical therapist, Ofer Nissan, about one or both incidents, possibly close in time to her visit to Dr. McKinnon. V.C. said that she told him about the incident(s) because he had been treating her for a long time and had always been appropriate. Mr. Nissan's deposition was offered by Petitioner in lieu of live testimony, because Mr. Nissan had become uncooperative after being subpoenaed to testify at the hearing and had stopped responding to calls by Petitioner's counsel. Mr. Nissan testified that V.C. told him Respondent touched her private area in an inappropriate way while he was working on her right inner thigh. When asked if V.C. had used the phrase, "private area," Mr. Nissan responded: "She used the word 'vulva.'" (Pet. Ex. 9, p. 18). When asked whether V.C. said whether there was inappropriate touching or penetration, Mr. Nissan responded: "She said penetration."11 (Pet. Ex. 9, p. 25). Despite what Mr. Nissan said he was told by V.C., he did not report the incident(s). He acknowledged that "Dr. Van Buskirk is a doctor with a lot of respect in this town. … I respect the doctor. I respect his reputation." (Pet. Ex. 9, p. 20). V.C. acknowledged at the hearing that she has retained lawyers to represent her, and they have prepared a complaint for damages against Respondent. Although V.C. acknowledged "there is a money component," she testified that that was not her priority; she just wants to hold him accountable. V.C. told her friend, T.B., for whom she works, something very different. T.B. described a conversation with V.C. in which she told him the incident12 had been reported to the police and asked him what he thought would happen. T.B. told her that if it was true, Respondent would probably end up in jail. V.C. responded that she would just rather have a monetary settlement. At the hearing, T.B. said he found V.C.'s comment strange: "I personally felt that that was a motivation beyond justice." (Tr. 123). At the hearing, Petitioner presented the expert testimony of Anthony Davis, D.O., to offer the opinion that if V.C.'s statements are believed, then Respondent had committed inappropriate touching of V.C.'s genitalia, an act that was outside of the scope of practice of osteopathic medicine. At the same time, he acknowledged that the examination and treatment of V.C. performed by Respondent on July 31 and August 28, 2018, were required based on V.C.'s presenting complaints, and were justified by the medical records. 11 Even though Petitioner offered Mr. Nissan's deposition testimony into evidence, Petitioner did not ask its witness, V.C., to address the inconsistencies in Mr. Nissan's testimony regarding what V.C. told him. 12 T.B. said that in 2018, V.C. only told him about a single incident. T.B. testified that V.C. called him one week before the hearing to tell him (for the first time) that there had been two incidents, and also to tell him that she was filing a civil lawsuit against Respondent. Dr. Davis also offered his view that there was no sexual misconduct in this case, either outside the standard of care or by not acting in accordance with governing medical statutes and rules. He testified that Respondent did not use the patient/physician relationship to engage in sexual activity outside the scope of practice. Respondent presented the expert testimony of Walter Ehrenfeuchter, D.O. Like Dr. Davis, he was qualified as an expert in osteopathic medicine. But Dr. Ehrenfeuchter was also qualified in the additional area of osteopathic manipulative treatment, a specialty area that is particularly germane here, since Dr. Van Buskirk's practice has focused exclusively on osteopathic manipulative treatment for the last 12 years. Like Dr. Davis, Dr. Ehrenfeuchter reviewed V.C.'s patient records and the allegations raised. He also reviewed deposition testimony of Dr. Davis, V.C., and Respondent. Dr. Ehrenfeuchter went far beyond Dr. Davis's fairly conclusory opinions, by going into compelling detail, in both his testimony and illustrative exhibits, to explain the treatment techniques employed by Respondent in treating V.C., the challenges working in delicate physical areas to address V.C.'s specific complaints, and the related standards of care implicated in this case. Dr. Ehrenfeuchter's detailed presentation fully supported his overall opinions that Respondent's actions in examining and providing osteopathic manipulative treatment to V.C. were appropriate and within the scope of practice. Ultimate findings of fact Even if V.C.'s testimony were fully credited, Dr. Van Buskirk did not engage in or attempt to engage in sexual misconduct. He did not engage or attempt to engage in verbal or physical sexual activity with V.C. He did not induce or attempt to induce V.C. to engage in sexual activity. V.C.'s testimony, if credited, went no further than to suggest passive momentary resting of a palm or part of a palm on V.C.'s pubic area in the course of providing osteopathic manipulative treatment to V.C.'s painful groin. For many reasons, though, V.C.'s testimony cannot be credited. Her testimony lacked credibility, clarity, and consistency. The details she described were confused or contrived in many respects. The testimony of Petitioner's other witnesses, offered for the purpose of demonstrating consistency in V.C.'s statements from July 2018 through the hearing, instead demonstrated glaring inconsistencies on material points. The best that could be said about V.C.'s overall testimony is that V.C. may have been influenced by what others told her, starting with Dr. Maguire sharing her "similar" experience of realizing that she had been violated, such that V.C. built up in her own mind the belief that she, too, was violated. Yet V.C.'s embellishments, as described by the "corroborating witnesses," to V.D. (inventing verbal come-on statements of a sexual nature) and to Ofer Nissan (changing her allegation to inappropriate touching of her vulva and adding penetration) suggest the possibility of a more purposeful nefarious intent to spin a tale to try to capitalize financially. Respondent's testimony that he did not touch V.C. inappropriately was more credible than V.C.'s testimony, and is credited. Dr. Ehrenfeuchter's expert opinion that Respondent's examination and treatment of V.C. was appropriate, supported by the medical records, and within the standard of care and scope of appropriate osteopathic manipulative treatment practice was well-supported, more persuasive than Dr. Davis's opinion (to the extent it was inconsistent), and is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Osteopathic Medicine, issue a final order determining that Respondent, Richard Van Buskirk, D.O., is not guilty of a violation of section 456.072(1)(v), Florida Statutes (2018), and dismissing the Administrative Complaint. DONE AND ENTERED this 24th day of February, 2021, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2021. COPIES FURNISHED: Andrew Perrin, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Corynn Colleen Alberto, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Kathryn Hood, Esquire Pennington, P.A. 215 South Monroe Street, Suite 200 Tallahassee, Florida 32301 Stephanie Clark, Esquire Pennington, P.A. 215 South Monroe Street, Suite 200 Tallahassee, Florida 32301 Kama Monroe, JD, Executive Director Board of Osteopathic Medicine Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399-3257 Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399
