Findings Of Fact Seven Rivers Community Hospital is located in Crystal River, Florida. Seven Rivers contracted with Kron Medical Enterprises in Chapel Hill, North Carolina, to supply a locum tenens (temporary physician assistance) to Seven Rivers. Seven Rivers needed the services of a temporary anesthesiologist on staff while one of its two regular staff anesthesiologists took an examination for board certification in this speciality. Kron made arrangements for Dr. Sheila Fischer, who held Florida license No. ME 50235, to provide temporary staff anesthesiology services at Seven Rivers. Kron made Dr. Fischer's travel and living arrangements while at Seven Rivers. While at Seven Rivers, Dr. Fischer lived in a small apartment located on the hospital's grounds, approximately 25 yards from the hospital. This apartment was equipped with a telephone and was used by temporary physicians employed by the hospital. The end of Dr. Fischer's two weeks temporary service at Seven Rivers ended on Friday, October 30, 1987, at 3:00 p.m. The travel arrangements by Kron for Dr. Fischer were for a flight on Saturday morning, October 31, 1987, from Tampa Airport to New York City. Patient R.B. was admitted to Seven Rivers Hospital on October 28, 1987. R.B.'s admitting physician was Dr. Callueng. R.B.'s medical history indicates that he was five feet, two inches tall, weighed a 163 pounds, was a former smoker, and was diabetic and hypertensive. R.B. was taking Diabinese, Minipress, and Procordia for these medical problems. R.B. had a history of transient ischemia attacks (mini strokes). R.B. was scheduled for a right carotid endarterectomy on October 30, 1987. A carotid endarterectomy is the surgical removal of plaque from the interior of the carotid artery. These plaques or deposits restrict the flow of blood through the carotid artery. One carotid artery runs up each side of one's neck and has two branches, the vertebral branch which serves the temporal region of the head and the internal branch which serves the brain. Both carotid arteries are interconnected at the base of the brain so that blood flow to the brain can be maintained under normal circumstances by either carotid artery. The carotid endarterectomy on R.B. was dictated by his history of transient ischemia which results from the reduction in arterial blood flow. The work-up on R.B. revealed blockages in both R.B.'s carotid arteries in excess of 90 percent. R.B. was visited on the evening of October 29, 1987, by Dr. Ernesto Donaire, staff anesthesiologist at Seven Rivers Hospital. Dr. Donaire conducted a pre-operative assessment of R.B. and reviewed R.B.'s medical history; see paragraph 4 above. Dr. Donaire also observed that R.B. was moderately obese, had a short neck, and wore dentures. In addition, Dr. Donaire explained to R.B. the operation, the risk of surgery and anesthesiology, and obtained R.B.'s release for the anesthesiology and surgery to be performed the next day. Subsequent to talking with R.B., Dr. Donaire spoke with another surgeon who added a new case to the following day's surgical schedule. As a result of the change in schedule, Dr. Donaire switched R.B. to another operating room where the Respondent, Dr. Fischer, was scheduled to provide anesthesia the following day. Dr. Donaire returned to R.B.'s room and explained to R.B. that Dr. Fischer would be handling his anesthesia the following day. This was acceptable to R.B. and Dr. Donaire charted this second meeting with R.B. in a separate progress note. Dr. Fischer's last day as a locum tenes anesthesiologist at Seven Rivers Hospital was on October 30, 1987. After handling surgeries in the morning, Dr. Fischer began to chart the anesthesia for R.B. at 1135 hours when he was brought into the operating room for a right carotid endarterectomy. A 16 gauge needle was placed in R.B.'s left hand; a blood pressure cuff was placed on him, together with electrocardiogram leads; an oximeter was applied; his eyes were taped and lubricated; and he was interbated with a #7 E.T. tube. This was easily done and subsequently his chest sounds were equal. A 20 gauge catheter was placed in the left radial artery and the patient prepped and draped. At this point, the nurse noticed a slit in the drape covering the instruments. The patient was redraped and prepped while the instruments were flash sterilized and the first incision made at 1242 hours. At 1318 hours, the surgeon, Dr. Boholst, clamped the right carotid artery. The clamp was removed at 1435 hours. During the period the clamp was in place, the right side of R.B.'s brain was dependent upon blood supply from cross circulation from the left carotid artery which was 90 percent blocked. The annotations at the bottom of the Respondent's surgical notes reflects that the blood supply to the brain through the right carotid artery was interrupted for 77 minutes. At 1520 hours, R.B. was received in the post- anesthesia care unit (PACU) by bed from the operating suite accompanied by Dr. Fischer and Nurse Camara, the operating room nurse. This was twenty minutes after the end of the normal shift. Dr. Fischer and Nurse Camara gave verbal reports of the operation to Gerry Auermann, the PACU nurse assigned to care for R.B. This was very normal and in accordance with regular procedures. Shortly after R.B. was received in the PACU, Dr. Boholst arrived and looked in on the patient. Drs. Boholst and Fischer were concerned about the possible neurological insult to R.B. caused by the extended clamping of the carotid artery. However, they could not assess the extent of insult while R.B. was under the effects of the anesthesia. R.B. was deeply sedated and did not recover quickly. His temperature was 30.60 (870F). Assessment was further complicated by the pre-surgical conditions of R.B.'s left leg caused by a childhood illness. An assessment of the patient's neurological state is important to the surgeon in determining whether it is necessary to return a patient to surgery to correct problems resulting from circulatory blockages caused by a separation of plaque and internal flaps. (Cross deposition, page 60) Neurological insult caused by the clamping can not be corrected surgically. Dr. Fischer indicated that the damage from clamping would be apparent immediately, but would worsen over several hours. Gerry Auermann, the PACU nurse, did not record the presence of Drs. Fischer or Boholst in PACU. She indicates in her deposition that she had not independent recollection of events, but did not feel they were present because her notes would have reflected that they were present if they had been. However, her notes also reflect that she administered Narcan to R.B. There were no doctor's orders covering the administration of this medication to the patient. It is inconceivable that a nurse with Auermann's background and experience would have administered these medications without a doctor's order. Dr. Fischer indicated that it was not unusual for nurses in an intensive care situation to make partial notes on adhesive tape, clothes, or even the backs of their hands for transfer subsequently into the official record. Auermann's notes were not complete regarding the presence of Dr. Fischer and Dr. Boholst and their orders regarding R.B. Both Dr. Fischer and Dr. Boholst saw one another and spoke to one another as they monitored the progress of their patient R.B. While in the PACU, both physicians shared responsibility for R.B. in the PACU. Dr. Fischer was responsible for his satisfactory recovery from anesthesia and Dr. Boholst was responsible for assessing R.B. surgically and making a determination, if necessary, to return him to surgery. The on- call anesthesiologist would have been responsible for anesthesiological assistance if surgery was required after Dr. Fischer's normal end of shift and release of the patient to Dr. Boholst. At approximately 1605 hours, Auermann administered one quarter cc (5 mg) of Narcan to R.B. Narcan is a medication which cancels the effects of narcotics and anesthesia. At 1608 hours, another one quarter cc of Narcan was administered to R.B. At 1610 hours, Auermann initially noted that the patient was moving, however, she voided this entry. At 1625 hours, Auermann recorded that the patient moved his right limbs and left shoulder. When she stimulated his left toes she received an involuntary reflexed action. The nursing notes reflects Narcan at 1605 hours and 1608 hours, and again at 1650 hours and 1655 hours. Nomaclene (phonetic) was not administered. Dr. Boholst and Dr. Fischer were present when R.B. was assessed, and Dr. Boholst was advised of the potential neurological deficient suffered by R.B. during the operation. Between 1625 hours and 1655 hours, Dr. Boholst faced the decision to return the patient to surgery or to wait and further assess the impact of the neurological insult resulting from the prolonged clamping of the carotid artery. At this time, Dr. Fischer's principal concern was getting the patient in a condition to be moved to ICU. At 1650 hours, a one- half cc of Narcan was administered to R.B. and at 1655 hours another one-half cc was administered. At 1700 hours the patient was responsive but unable to open his eyes. Dr. Boholst decided not to return to surgery. He consulted with Dr. Callueng, R.B.'s principal physician, who ordered an immediate CAT Scan. A CAT Scan would have identified the principal physical restrictions to the blood flow without further surgery. See. Dr. Cross' deposition. There was a delay in receiving R.B. in ICU because of a lack of beds. At sometime between 1600 hours and 1655 hours, Dr. Fischer gave the following verbal orders to Auermann concerning R.B.: 10/30/87 number 1, blood glucose now done PACU at 1600 (emphasis supplied); number 2, nitroglycerin drip to control B.P. systolic below 160, diastolic below 100; number 3, discharge from PACU at . Verbal order of Doctor Fischer taken by G. Auermann, RN. (A blank was left to permit Nurse Auermann to fill in the time when the actual transfer was made. The transfer was made at 1745.)(See page 28, Auermann deposition.) At 1720 hours, Auermann administered to R.B. 12 and a half mg of Demoral, on order of Dr. Boholst, and telephoned Dr. Boholst to report on the patient's condition. At that time, R.B. had a PARR of 8, slight movement in his left hand and no voluntary movement in his left leg. Dr. Boholst had left orders for administration of Demerol to R.B. for relief of pain in ICU. By protocol, surgeons don't administer drugs normally to patients in recovering room. However, at 1720 hours, a medication ordered only by Dr. Boholst was administered in the recovery room. As stated above, there was no room in ICU. Therefore, sometime between 1625 hours and 1720 hours, Dr. Fischer transferred primary patient care to Dr. Boholst. This was most probably not a formal matter because both doctors and Auermann had been participating in R.B.'s care, and all knew what was being done, why, and what the results were. Dr. Boholst had assumed responsibility for R.B. although R.B. remained in recovery because there was no room in ICU. Dr. Fischer's comments to the investigator many months after the event without reference to the record are not considered as admissions by Dr. Fischer.
The Issue Should discipline be imposed against Respondent's medical license for alleged violations of Sections 456.072(1)(aa), and 458.331(1)(p), Florida Statutes (2003)?
Findings Of Fact Stipulated Facts Petitioner is the state department charged with regulating the practice of medicine pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 458, Florida Statutes. At all times material to this (Administrative) Complaint, Respondent was a licensed physician within the State of Florida, having been issued license number ME66779. Respondent's address of record is Nature Coast Orthopedics, P.O. Box 640580, Beverly Hills, Florida 34464-0580. Respondent is board-certified in orthopedic surgery. On or about February 25, 2004, Respondent scheduled or had Patient D.M. scheduled for an anterior cruciate ligament (repair of a tear in a ligament), repair of the right knee at Seven Rivers Regional Medical Center in Crystal River, Florida. On or about February 25, 2004, Patient D.M. a 25-year-old male, was prepped for surgery and taken to the operating room. On or about February 25, 2004, Respondent entered the operating room and initiated the surgery with an incision of Patient D.M.'s left knee. On or about February 25, 2004, the intended and/or planned surgical site for Patient D.M., was his right knee. Subsequent to performing the incision to Patient D.M.'s left knee, Respondent realized that he was performing surgery on Patient D.M.'s wrong knee. Respondent applied a steri-strip to Patient D.M.'s left knee subsequent to making an incision on the left knee. Respondent made a skin incision on Patient D.M.'s left knee. Additional Facts Respondent graduated from medical school in 1989. He was in residency for five years and has been in practice for about 11 years beyond that time. Other than his disciplinary history with the State of Florida, Board of Medicine (the Board of Medicine) he has no disciplinary past with other boards or jurisdictions. Respondent is board-certified by the American Board of Orthopedic Surgery. Respondent has active privileges at Seven Rivers Regional Medical Center (Seven Rivers Regional) and Health South Citrus Service Center, an outpatient facility. Those facilities are located in Crystal River, Florida, and Lancanto, Florida, respectively. Respondent has an office practice that employs 12 staff. They include a receptionist, billing personnel, what is described as back-help, a Physician's Assistant (P.A.) and medical assistants. Respondent supervises the P.A., pursuant to registration with the State of Florida. Respondent takes emergency calls at Seven Rivers Regional, to include pediatric orthopedic calls. Respondent also takes hand calls which are related to injuries in that portion of the anatomy below the shoulders. After an 1998 incident involving a wrong-site surgery for which discipline was imposed by the Board of Medicine on Respondent, discussed in detail later in the facts, Respondent made some changes to his practice in dealing with the problem of wrong-site surgery. This involved the imposition of other checks and balances. One of the changes was referred to as a time-out, promoted by changes in hospital rules at what is now Seven Rivers Regional and by Respondent's choice. In 1998 the hospital was known as Seven Rivers Hospital. Persons other than Respondent were engaged in the establishment of additional checks and balances to avoid wrong-site surgeries. The risk manager and director of nursing at Seven Rivers Regional were engaged in this process. The time-out related to the cessation of other activities in treating the patient, to confirm the correct surgery site. Before commencing the surgical procedure the limb involved in the procedure would be marked by nursing staff. The nursing staff would then confirm the site, followed by the time-out period shortly after the preparation for surgery. Confirmation would verbally be made with different staff members, documentation was expected to be checked and any image studies checked to confirm the proper site. Generally, following the 1998 incident involving wrong- site surgery by Respondent, Seven Rivers Hospital established rules addressing the problem of wrong-site surgeries. Greater emphasis was made to enforce those rules after the Respondent‘s second incident considered in this case. In the present case it was intended that reconstruction be made of the anterior cruciate ligament of the right knee of Patient D.M., through arthroscopic reconstruction. The patient in the present case was seen in Respondent's office prior to surgery. The expectation was that the office staff would confer with the staff at Seven Rivers Regional concerning the type of procedure to be performed, to be followed later by orders from the Respondent that were faxed to the operating room staff at Seven Rivers Regional. Those orders would describe the limb involved in the surgery. In the present case the circulating nurse, together with the surgical technician were involved with preparing the limb for surgery, applying antiseptic solution and draping the patient's limb. Those persons are hospital employees. Prior to surgery, the wrong limb was marked by the nursing staff and the draping took place in the operating room. Patient D.M. underwent general anesthesia prior to the surgery. Before the procedure commenced in the present case, Respondent asked the nurse in the operating room if the correct limb had been prepared and the response was in the affirmative. Respondent started the procedure. The only means of confirmation by Respondent at that point was by verbal communication between the circulating nurse and Respondent. Respondent realized that he was ultimately responsible to make certain that the surgery was performed at the correct site. In the present case Respondent took an 11 blade and made a slight incision. He noticed that the video-screen which was normally placed on the opposite side of the intended limb to be examined, was on the same side as the limb that had been prepared for examination. As Respondent made the incision he was uncomfortable with that setting. He turned to the circulating nurse and asked if he could see the patient's chart. By review of the chart he discovered that he had made an incision on the wrong knee, that had been draped and prepared for examination. The incision was about a quarter-inch in size and the surgical knife had been placed about a half-inch into the skin. In this case no second incision was made as would be normal for this type of surgery. Having discovered his error Respondent placed surgical tape across the incision he had made and the draping was broken down from the unintended site and a new draping placed on the intended site. After these changes surgery was performed on the proper knee. Respondent did not consult with any family member before proceeding to perform surgery on the appropriate knee, having addressed the wrong knee in the beginning. The family was informed after the procedure was completed. The patient was informed of the mistake after awakening from anesthesia. The Respondent made entries into the medical record concerning the incident in the present case. After the surgery in the present case Respondent followed-up the patient at his office. No complications were experienced by the patient in either site, the wrong knee or the proper knee. The initial visit involving Patient D.M. took place on February 17, 2004, and the surgery was performed on February 25, 2004. The last scheduled appointment at Respondent's office was August 26, 2004, but Patient D.M. declined that appointment having returned to work, after expressing his view that to come to Respondent's office was an imposition. Respondent made the risk manager and director of nursing aware of the error in the treatment of Patient D.M. The incident was reviewed by the hospital. No action was taken against Respondent's privileges to practice at Seven Rivers Regional as a result of the incident. Following the present incident Respondent has varied his approach. The changes are to involve more people in the time-out period than before the present incident. This includes the anesthesia staff, surgical technician, circulating nurse, and Respondent. Resort is now made to the surgical consent record and any imaging studies that were performed to confirm that the proper site is addressed in the surgery. Prior to the present incident Respondent did not follow a practice of taking the patient's chart with him to the surgery. He depended on orders that had been sent by fax and hard copies following the transmittal of the initial fax to the hospital, to create the basis for surgical site identification by others. In the present case the doctor's orders forwarded to Seven Rivers Regional made clear that the arthroscopy was to be performed on the right knee. The comment section to the pre- operative patient care flow sheet refers to the right knee as the limb to be addressed by the arthroscopy. Likewise the special consent to operation or other procedures refers to the right knee. The anesthesia questionnaire involved with Patient D.M. refers to the right knee, in relation to the procedure in the arthroscopy. All are appropriate references to the location of the site for surgery. Joyce Brancato is the CEO of Seven Rivers Regional. She identified that there are four orthopedic surgeons who practice at the hospital. All four, including Respondent, attend adult cases. Three including Respondent, treat hand calls, and a like number respond to pediatric cases, to include Respondent. If Respondent were suspended it would mean that at certain times during the month patients would have to be diverted or transferred from Seven Rivers Regional to another hospital. There would be an influence on inpatient orthopedic care, in that Respondent provides 63 percent of inpatient surgical care at the facility. In particular, patients who present at the emergency room needing hip repair or fracture repair would be inconvenienced. If Respondent were placed on probation, he would not be allowed to supervise his P.A., who in turn could not see patients that the P.A. follows. No other doctor is available in the practice to supervise the P.A. If Respondent were suspended, services would not be provided through his clinic leaving the patients to seek care elsewhere. Additionally, Respondent is the sole orthopedic physician, to his knowledge, who admits Medicare patients to Seven Rivers Regional. As a result of the present incident Respondent received no pecuniary benefit or self-gain. None of the allegations in the Administrative Complaint involve controlled substance violations. Prior Discipline In relation to a prior disciplinary case against Respondent, that incident took place at Seven Rivers Hospital, now Seven Rivers Regional. The surgery in the prior case took place in 1998. It also involved a wrong-site surgery. As Respondent explained at the November 8, 2005 hearing, the prior case involved a female patient scheduled for a knee arthroscopy. The surgical site identification protocol involved at the time was to have the nursing staff prepare the patient for the surgery. As a consequence, when the Respondent entered the operating room the unintended knee had been draped. Respondent confirmed the surgery site by conferring with a nurse in attendance and starting the procedure. Incisions were made to examine the knee, the wrong knee, the incisions were about a quarter of an inch in length, one for the camera to view the site and one for the surgical instruments used to address the underlying pathology. When the wrong knee was examined following the incisions, Respondent did not find the pathology that he expected given the patient's prior history and physical examination that had been conducted. Other than the incisions being made in the wrong knee, there were no other consequences in the way of impacts to the patient's health. In the prior case in which the wrong knee had been prepped by staff, Respondent recognizes that he as the surgeon was responsible to ensure that surgery commenced on the correct knee. In the prior case, after realizing that he had commenced surgery on the wrong knee, Respondent stopped the procedure, he went to the waiting area and spoke to the patient's husband and explained the circumstances and absent any objection indicated that he intended to proceed with the case involving the correct knee. Before the correct knee could be addressed, there was a delay associated with the breaking down the sterile field on the incorrect knee and starting the process anew to address the correct knee. After conversing with the husband Respondent returned to the operating room and performed surgery on the correct knee. During the pendency of these events the patient was anesthetized. When the patient recovered from the anesthesia Respondent explained what had occurred. The expected pathology was discovered in the proper knee and addressed and the patient satisfactorily recovered from surgery without complications. In the prior case, Respondent made a record indicating that he had initiated the surgery in the wrong site. All requirements incumbent upon Respondent in view of the terms of the Consent Order entered in the prior case, DOH Case No. 98-16838 were met by Respondent.
The Issue The issues in this case are whether Respondents performed a wrong procedure on patient C.C., as set forth in the second amended administrative complaints, and if so, what is the appropriate sanction.
Findings Of Fact The Department of Health, Board of Medicine, is the state agency charged with regulating the practice of medicine in the state of Florida, pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. At all times material to this proceeding, Respondents were licensed physicians within the state, with Dr. Kenneth D. Stahl having been issued license number ME79521 and Dr. Eddie Ward Manning having been issued license number ME110105. Dr. Stahl has been licensed to practice medicine in Florida since 1999 and in California since 1987. He has never had disciplinary action taken against either license. Dr. Stahl is board certified by the American College of Surgeons in general surgery, cardiac and thoracic surgery, and trauma and critical care surgery. Dr. Stahl's address of record is 3040 Paddock Road, Fort Lauderdale, Florida 33141. Dr. Manning has been licensed to practice medicine in Florida since May 31, 2011. He has never had disciplinary action taken against his license. On June 23, 2011, Dr. Manning was a resident in general surgery. Dr. Manning's address of record is 1900 South Treasure Drive, Apartment 6R, North Bay Village, Florida 33141. In February 2011, patient C.C., a 52-year-old female, was admitted to Jackson Memorial Hospital (JMH) with a diagnosis of perforated appendicitis. She also had a perirectal abscess. Her records indicate that she was treated with percutaneous drainage and a course of intravenous (IV) antibiotics. She was discharged on March 4, 2011. On June 22, 2011, patient C.C. presented to the JMH Emergency Department complaining of 12 hours of abdominal pain in her right lower quadrant with associated nausea and vomiting. Shortly after her arrival she described her pain to a nurse as "10" on a scale of one to ten. A computed tomography (CT) scan of patient C.C.'s abdomen was conducted. The CT report noted that the "the uterus is surgically absent," and "the ovaries are not identified." It noted that "the perirectal abscess that was drained previously is no longer visualized" and that the "appendix appears inflamed and dilated." No other inflamed organs were noted. The radiologist's impression was that the findings of the CT scan were consistent with non-perforated appendicitis. Patient C.C.'s pre-operative history listed a "total abdominal hysterectomy" on May 4, 2005. Patient C.C.'s prior surgeries and earlier infections had resulted in extensive scar tissue in her abdomen. Dr. Stahl later described her anatomy as "very distorted." Patient C.C. was scheduled for an emergency appendectomy, and patient C.C. signed a "Consent to Operations or Procedures" form for performance of a laparoscopic appendectomy, possible open appendectomy, and other indicated procedures. Patient C.C. was taken to surgery at approximately 1:00 a.m. on June 23, 2011. Dr. Stahl was the attending physician, Dr. Manning was the chief or senior resident, and Dr. Castillo was the junior resident. Notes indicate that Dr. Stahl was present throughout the critical steps of the procedure. Dr. Stahl had little recollection of the procedure, but did testify that he recalled: looking at the video image and seeing a tremendous amount of infection and inflammation and I pulled-–I recall that I myself went into the computer program and pulled up the CT scan and put that on the screen right next to the video screen that's being transmitted from the laparoscope and put them side-to-side and compared what the radiologists were pointing to as the cause of this acute infection and seeing on the laparoscopic video image that that indeed matched what I saw in the CT scan and I said, well, let's dissect this out and get it out of her so we can fix the problem. Dr. Stahl further testified that the infected, hollow organ that was dissected and removed was adherent laterally in the abdomen and was located where the appendix would normally be. He recalled that an abscess cavity was broken into and the infected, "pus-containing" organ that was removed was right in the middle of this abscess cavity. Dr. Stahl also recalled the residents stapling across the base of the infected organ and above the terminal ileum and the cecum and removing it. The Operative Report was dictated by Dr. Manning after the surgery and electronically signed by Dr. Stahl on June 23, 2011. The report documents the postoperative diagnosis as "acute on chronic appendicitis" and describes the dissected and removed organ as the appendix. Progress notes completed by the nursing staff record that on June 23, 2011, at 8:00 a.m., patient C.C. "denies pain," and that the laparoscopic incision is intact. Similar notes indicate that at 5:00 p.m. on June 23, 2011, patient C.C. "tolerated well reg diet" and was waiting for approval for discharge. Patient C.C. was discharged on June 24, 2011, a little after noon, in stable condition. On June 24, 2011, the Surgical Pathology Report indicated that the specimen removed from patient C.C. was not an appendix, but instead was an ovary and a portion of a fallopian tube. The report noted that inflammatory cells were seen. Surgery to remove an ovary is an oophorectomy and surgery to remove a fallopian tube is a salpingectomy. On Friday, June 24, 2011, Dr. Namias, chief of the Division of Acute Care Surgery, Trauma, and Critical Care, was notified by the pathologist of the results of the pathology report, because Dr. Stahl had left on vacation. Dr. Namias arranged a meeting with patient C.C. in the clinic the following Monday. At the meeting, patient C.C. made statements to Dr. Namias regarding her then-existing physical condition, including that she was not in pain, was tolerating her diet, and had no complaints. Dr. Namias explained to patient C.C. that her pain may have been caused by the inflamed ovary and fallopian tube or may have been caused by appendicitis that resolved medically, and she might have appendicitis again. He explained that her options were to undergo a second operation at that time and search for the appendix or wait and see if appendicitis recurred. He advised against the immediate surgery option because she was "asymptomatic." The second amended administrative complaints allege that Dr. Stahl and Dr. Manning performed a wrong procedure when they performed an appendectomy which resulted in the removal of her ovary and a portion of her fallopian tube. It is clear that Dr. Stahl and Dr. Manning did not perform an appendectomy on patient C.C. on June 23, 2011. Dr. Stahl and Dr. Manning instead performed an oophorectomy and salpingectomy. It was not clearly shown that an appendectomy was the right procedure to treat patient C.C. on June 23, 2011. The Department did convincingly show that patient C.C. had a history of medical problems and that she had earlier been diagnosed with appendicitis, had been suffering severe pain for 12 hours with associated nausea and vomiting, that she suffered from an infection in her right lower quadrant, that the initial diagnosis was acute appendicitis, and that the treatment that was recommended was an appendectomy. However, substantial evidence after the operation suggests that an appendectomy was not the right procedure. The infected and inflamed organ that was removed from the site of a prior abscess was not an appendix. After the procedure, patient C.C. no longer felt severe pain in her lower right quadrant, with associated nausea and vomiting. She was discharged the following day and was asymptomatic. It is, in short, likely that the original diagnosis on June 22, 2011, was incorrect to the extent that it identified the infected organ as the appendix. The pre-operative diagnosis that patient C.C.'s severe pain and vomiting were caused by a severe infection in an organ in her lower right quadrant was correct. Surgical removal of that infected organ was the right procedure for patient C.C. If that inflamed organ was misidentified as the appendix before and during the operation, that would not fundamentally change the correctness of the surgical procedure that was performed. The evidence did not clearly show that the wrong procedure was performed. It is more likely that exactly the right procedure was performed on patient C.C. That is, it is likely that an oophorectomy and salpingectomy were the right procedures to address the abdominal pain that caused patient C.C. to present at the JMH emergency room, but that the right procedure was incorrectly initially denominated as an "appendectomy," as a result of patient history and interpretation of the CT scan.
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 dismissing the second amended administrative complaints against the professional licenses of Dr. Kenneth D. Stahl and Dr. Eddie Ward Manning. DONE AND ENTERED this 15th day of July, 2015, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 15th day of July, 2015.
Conclusions "HE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement, attached hereto and incorporated herein as Exhibit “1.” Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the ay”® day of wfiglicha__. 2014, in Tallahassee, Florida. oe aah 4 i Zou DU ale SE TARY Agency for Health Ware Administration Wd §2 i" i aA} ey 2f Final Order C.I.No.: 11-3970-000 Page 1 of 3 A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Frank Rainer, Esquire Agency for Health Care Administration Broad & Cassel Bureau of Finance and Accounting P.O. Box 11300 (Electronic Mail) Tallahassee, Florida 32303 (Via U.S. Mail) Bureau of Health Quality Assurance Stuart Williams, General Counsel HealthCare 9 gency-for Health G (Electronic Mail) ; (Electronic Mail) Kelly Bennett, Chief MPI Shena Grantham, Chief Agency for Health Care Administration Medicaid FFS Counsel (Electronic Mail) (Electronic Mail) Douglas Lomonico State of Florida, Division of Administrative (Electronic Mail) Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Via U.S. Mail) Final Order C.L. No.: 11-3970-000 Page 2 of 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail on this the ay of ! Les 04, Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 Final Order C.I. No.: 11-3970-000 Page 3 of 3
Conclusions THIS CAUSE came before the BOARD OF MEDICINE (Board) on June 6, 2014, in Tampa, Florida, for the purpose of considering Respondent's offer to voluntarily relinquish his license to practice medicine in the State of Florida. (attached hereto as Exhibit A.) Said written offer of velinguishment specifically provides that Respondent agrees never again to apply for licensure as a physician in the State of Florida. Upon consideration of the written offer of voluntary relinquishment, the charges, and the other documents of record, and being otherwise fully advised in the premises, IT IS HEREBY ORDERED that Respondent’s Voluntary Relinquishment of his license to practice medicine in the State of Florida is hereby ACCEPTED, and shall constitute discipline upon Respondent’s license. This Final Order shall take effect upon being filed with ! the Clerk of the Department of Health. DONE AND ORDERED this} | he day of ‘ A yt, 2014. BOARD OF MEDICINE Allison M. Dudley, J. For Nabil El Sanadi, Executive Director , ,Chair | a CERTIFICATE OF SERVICE I I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by U.S. Mail to HAROLD EDWARD SMITH, M.D., 4001 Sw 13™ Street, Gainesville, Florida 32608; and 501 N. Orlando Avenue, Suite 313-247, Winter Park, Florida 32789; to Juan A. Ruiz, Esquire, Rissman, Barrett, et al., 201 East Pine Street, 15° Floor, Post office Box 4940, Orlando, Florida 32802-4940; and by interoffice! delivery to Doug Sunshine, Department of Health, 4052 Bald Cypress Way, Bin #C- i 65, Tallahassee, Florida 32399-3253 this \ Za) | day of ~& , 2014. Deputy Agency Clerk FILED | DEPARTMENT oF HEALTH STATE OF FLORIDA DEPUTY DEPARTMENT OF HEALTH CLERK: wo? Conte) DEPARTMENT OF HEALTH Petitioner, = | pare__MAY 06 204 | v . DOH Case No. 2012-05273 Harold Edward Smith, M,D., ! Respondent. ' ee TAR’ Respondent, Harold Edward Smith, M.D., license No. ME 7300, hereby voluntarily t relinquishes Respondent's license to practice medicine in the State of Florida and states as i 1, Respondent's purpose in executing this Voluntary: Relinquishment is to avoid follows: | further administrative action with respect to this cause. Respondent understands that . | acceptance by the Board of Medicine (hereinafter the Board) of this Voluntary i] * Relinquishment shall be construed as disciplinary action against Respondent's license . . | pursuant to Section 456,072(1)(f), Florida Statutes, As with any disciplinary action, this | relinquishment will be reported to the National Practitioner's Data Bank as disciplinary | ’ action. Licensing authorities In other states may impose disdpline in their jurisdiction based on discipline taken In Florida. : . | 2. Respondent agrees to never reapply for licensure as ai Medical Doctor in the i State of Florida. ‘| 3. Respondent agrees to voluntarily cease practicing medicine immediately upon executing this Voluntary Relinquishment. Respondent further agrees to refrain from i 1 i ~335785—————________ ee : the practice of Medicine until such time as this Voluntary Relinquishment is presented to the Board and the Board issues a written final order in this matter. 4. In order to expedite consideration and resolution of this action by the Board in a public meeting, Respondent, being fully advised of the consequences of so doing, hereby Waives the statutory privilege of confidentiality of Section 456. 073(10), Florida Statutes, regarding the complaint, the investigative report of the Department of Health, and all other information obtained pursuant to the Department's investigation in the above-styled action. By signing this walver, Respondent understands that the record and complaint become public tecord and remain public record and that information is immediately accessible to the public. . Section 456.073(10) Florida Statutes. ; 5. Upan the Board's acceptance of this Voluntary Relinduishment, Respondent agrees to waive ail rights to seek judidal review of, or to otherwise challenge or contest the | validity of, this Voluntary Relinquishment and of the Final Order of the Board incorporating 6. Petitioner and Respondent hereby agree that upon the’ Board's acceptance of this Voluntary Retinquishment. this Voluntary Relinquishment, each party shall bear its own attomey's fees and costs related { | to the prosecution or defense of this matter. 7. Respondent authorizes the Board to review and examine all investigative file Materials conceming Respondent in connection with the Board's ‘consideration of this Voluntary Relinquishment, Respondent agrees that consideration of this Voluntary Relinquishment and other related materlais by the Board shall not prejudice or preclude the 2+ 2014, ; i | Board, or any of its members, front further participation, consideration, or resolution of these proceedings if the terms of this Voluntary Relinquistment are not accepted by the Board. i DATED this 2d dayof__MMiaey 2014. Harold E, Smith,
The Issue Each of the petitioners disputes respondent's contention that Port St. Lucie and vicinity do not need hospital beds beyond the number that might practicably be added to Martin's Stuart facility and HCA's Lawnwood Medical Center in Ft. Pierce. The petitioners agree that a need for hospital beds in or near Port St. Lucie exists and each petitioner takes the position that it can best meet the need. As to which of the petitioners might best meet a need it does not concede to exist, respondent takes no position.
Findings Of Fact The parties stipulated that a "population explosion" is taking place in Port St. Lucie and environs. The town was developed by General Development Corporation; 75,000 residential lots were offered for sale and 90 percent have been sold. At the time of the hearing, Port St. Lucie's population was approximately 14,000 to 16,000 persons, even though only some seven or eight thousand residential lots had been built on. In addition, approximately 10,000 persons reside in developments contiguous to Port St. Lucie. The population of Port St. Lucie may increase several fold in the next ten or fifteen years. While the population in other parts of Martin and St. Lucie Counties is also expected to grow, the greatest increase in population in the area is anticipated in Port St. Lucie and its immediate vicinity. Already Port St. Lucie's population is greater than the population was in Stuart when a hospital was first built in that community and than the population was in Ft. Pierce when a hospital was originally built in that community. ACCESSIBILITY Port St. Lucie lies in south St. Lucie County more or less equidistant from Ft. Pierce to the north and Stuart, county seat of Martin County, to the south. Most residents of Port St. Lucie live ten miles or more from a hospital. The nearest hospitals are in Ft. Pierce and Stuart, which each have a single hospital. PATIENTS AND VISITORS St. Lucie County Fire Districts provide emergency services to residents of Port St. Lucie and vicinity. Time that emergency personnel and vehicles spend transporting patients to hospitals is time they are unavailable to respond to other emergency calls. Under favorable traffic conditions, it takes 20 to 30 minutes to drive from Port St. Lucie to either of the hospitals nearby. Road building in St. Lucie County is not expected to keep pace with increasing population in the near term; traffic is likely to become more congested in the next few months and years. (Testimony of Commissioner Enns.) There is no public transportation in the area. A railroad track crosses the highways connecting Port St. Lucie and Ft. Pierce's Lawnwood Medical Center. In a typical 24-hour period, trains using this track block U.S. Highway 1 for six minutes. Traveling from Port St. Lucie to Martin's hospital in Stuart, a somewhat shorter distance, requires crossing more than one railroad track as well as a drawbridge which, earlier this year, was stuck open stopping automobile traffic for an hour and a half. In the summer of 1979, a patient on route from Port St. Lucie to Stuart died in an ambulance stopped at a railroad track. PHYSICIANS In 1972, Bernard Daniel Ross, an internist, was the only physician in Port St. Lucie. At the time of the hearing, approximately 30 doctors had offices in Port St. Lucie, some of whom also had offices in Ft. Pierce. Dr. Ross makes up to three round trips daily between his office and Lawnwood Medical Center, which are ten miles apart. Dr. Asuncion Luyoa, a general practitioner who has lived in Port St. Lucie for three years, seas ten to fifteen new patients a day. She also makes frequent trips to the hospital. Dr. John B. Sullivan, who has staff privileges at Lawnwood Medical Center and who has practiced in St. Lucie County for 16 years, opened an office in Port St. Lucie a little more than two years ago. UTILIZATION OF EXISTING HOSPITALS St. Lucie, Martin, Indian River, Okeechobee, and Palm Beach Counties comprise Florida Health Service Area Region VII, the jurisdiction of Health Planning Council, Inc., (HPC), the local health systems agency. For the most part, residents of each county use hospital facilities in their own county. Lawnwood Medical Center served 12.3 percent of Okeechobee County residents needing hospitalization, 1.9 percent of Indian River County residents needing hospitalization, and 1.3 percent of Martin County residents needing hospitalization. The bulk of its patients came from St. Lucie County; of St. Lucie County residents needing hospitalization, 71 percent were hospitalized at Lawnwood. Ninety percent of Martin County residents needing hospitalization and 15.8 percent of St. Lucie County residents needing hospitalization were hospitalized at Martin's Stuart facility. Most of the remaining St. Lucie County residents needing hospitalization, 10.8 percent, went to Indian River Memorial Hospital in Vero Beach. At the time of the hearing, more than 90 percent of the 225 hospital beds at Lawnwood Medical Center were occupied. Twenty-four authorized beds at Lawnwood Medical Center were in fact unavailable until the latter part of 1979 when 18 were opened; the final six beds (in the intensive care unit) were opened in late December of 1980. Even so, the occupancy rate at Lawnwood Medical Center, as a percentage of 225 beds, was 70.5 for 1979. The overall occupancy rate for 1980, as a percentage of 225 beds, was 79.9. In 1980, monthly occupancy rates, as a percentage of 225 beds, were 80.2 for January, 79.7 for February, 81.1 for March, 81.8 for April, 75.7 for May, 72.7 for June, 78.6 for July, 81.1 for August, 80.9 for September, 87.3 for October, 76.9 for November, and 82.3 for December. Except for 20 obstetric, 15 pediatric, and 18 intensive or coronary care unit beds, all of the beds at Lawnwood Medical Center are medical or surgical. The overall 1980 occupancy rate for medical and surgical beds was 83 percent. At the time of the hearing, eight obstetric beds, four pediatric beds, four beds in the intensive care unit, and four medical/surgical beds were unoccupied at Lawnwood Medical Center. Not all medical/surgical beds can always be occupied; men and women patients are segregated and patients with respiratory diseases, among others, require isolation. On one day in January of this year, admission of 13 patients had to be delayed. These patients were put on a waiting list for elective surgery, which, in some instances, was postponed three or four weeks. Martin's Stuart hospital has expanded five times in recent years (1960, 1963, 1970, 1976, and 1978-1979) and a sixth expansion to add 50 beds is now in progress. On January 15, 1979, when the last expansion was completed, 50 beds were opened to the public. They were filled within 24 hours. When the expansion now under way is accomplished, the Stuart hospital will have 302 beds. Martin "defines emergency bed status as. . .five or less medical/surgical beds available. . .mean[ing] that the hospital medical/surgical beds are at least 97.5 percent occupied." Martin's application, p. 30. During the period of January, 1979, through March, 1979, Martin's hospital in Stuart was on "emergency bed status" 16.7 percent of the time. During the same period in 1980, the hospital was on "emergency bed status" 45 percent of the time. A waiting list of up to 60 patients is not uncommon in the winter season. Indian River Memorial Hospital in Vero Beach, 25 miles north of Lawnwood Medical Center, had 99 percent of its 216 available beds occupied in mid-January of this year. According to John Hoyt, executive director of Indian River Memorial Hospital, an occupancy rate as high as 90 percent suggests that pediatric and obstetric beds were pressed into service for medical and/or surgical patients. For the year ending September 30, 1980, the overall occupancy rate averaged 83 percent. The monthly occupancy rates for the calendar year 1980 were 89.9 for January, 90.1 for February, 90.8 for March, 83.9 for April, 78.8 for May, 79.3 for June, 77.1 for July, 79.0 for August, 86.0 for September, 88.0 for October, 84 for November, and 82.0 for December. Indian River Memorial Hospital plans to open another 24 beds in March of 1981, but does not anticipate having the ability to provide service for people in Port St. Lucie and vicinity. Only a few patients from southern St. Lucie County have been admitted to Indian River Memorial Hospital, which is more than 30 miles and some 45 minutes away. In the opinion of Mr. Hoyt, any patients Indian River Memorial Hospital might lose to an expanded Lawnwood Medical Center or to a new facility in Port St. Lucie would be more than offset by patients from the growing population in Vero Beach and vicinity. HEALTH SYSTEMS PLAN The HPC has adopted an amended health systems plan 1980-1984, which includes the following goals and objectives: Health Systems Goal The number of acute care hospital beds should be no more than four (4) licensed beds per 1,000 population in HSA Region #7. Application of this goal throughout the area should take into consideration the following factors: Changes in patient origin patterns; Age differences within a hospital primary service area; Emergency Scheduling; Geographic isolations (95 percent of population not within 30 minutes of services), economic efficiency and quality assurance. Long-Range Objectives For the next four (4) years, any net increases in licensed acute care general hospital beds should be limited to the expansion of medical/surgical beds. In order to meet the projected need for medical/surgical beds, a reallocation of existing beds from pediatric, obstetrical, ICU, CCU, monitored and intermediate care will have to take place. For the next four (4) years, existing hospitals should be encouraged to expand in order to meet the projected demand for services in their primary service area either through expansion of the main facility or satellite outpatient facilities. Health Systems Goal Region-wide (HSA #7), the overall average annual occupancy rate for acute care general hospital licensed beds should equal 75 percent. Long-Range Objectives By 1984, the region-wide annual occupancy rate for licensed acute care hospital beds should increase to 75 percent. By 1984, the region-wide annual occupancy rate for each of the following bed categories should be as follows: Medical/Surgical 75 percent Obstetrical 65 percent Pediatric 65 percent ICU, CCU, Monitored & Intermediate Care 80 percent By 1984, any hospital with less than 50 percent annual occupancy rate should be consolidated with other hospitals in the same service area as defined by the Health Planning Council. By 1982, all hospitals should have developed a five-year plan that contains the following: Statement of Purpose; Description of Present Facilities and Programs; Statement of Goals; Proposed Major Programs and Resources Necessary to Reach Goal. Health Systems Goal Average daily service charge for all acute care hospitals in HSA Region #7 should not increase at a rate greater than 1 1/2 times the annual cost-of-living increase. Long-Range Objectives By 1981, information should be made available to the community on gross patient revenues and total cost of hospital services within HRS #7 for the purpose of monitoring the goal. By 1982, at least six (6) presently existing acute care hospitals in HSA Region #7 should establish cooperative arrangements for the provision of specialized services. BED NEED PROJECTIONS According to the preliminary 1980 census figures, St. Lucie County had a population of 86,969 and Martin County had a population of 62,979. Joint Exhibit No. 1. The Bureau of Economic and Business Research of the University of Florida projects populations for St. Lucie County of 89,500 for 1981; 92,300 for 1982; 95,700 for 1983; 99,100 for 1984; and 102,500 for 1985. Joint Exhibit No. 1 (medium projections). The Bureau of Economic and Business Research of the University of Florida projects populations for Martin County of 62,100 for 1981; 64,600 for 1982; 67,600 for 1983; 70,600 for 1984; and 73,600 for 1985. Joint Exhibit No. 1 (medium projections). The Martin County projections presumably require revision upward in light of the 1980 census results. Preliminary 1980 census figures put the population of Okeechobee County at 20,324, and the population of Indian River County at 57,217. Joint Exhibit No. 1. The Bureau of Economic and Business Research projects 1984 populations of 23,700 for Okeechobee County and 67,300 for Indian River County. Joint Exhibit No. 1 (medium projections). The 1980 population of Palm Beach County is on the order of 594,900 and is projected to rise to 684,400 by 1984. Joint Exhibit No. 1 (medium projections). As of December 31, 1980, Palm Beach County had 2,654 licensed and approved acute care hospital beds; Okeechobee County had 75; and Indian River County had 343. HCA's Exhibit No. 1. The 302 beds authorized for Martin's hospital in Stuart were the only acute care hospital beds licensed or approved in Martin County as of the time of the hearing. All 225 beds approved for St. Lucie County were open at Ft. Pierce's Lawnwood Medical Center, at the time of the hearing. The ratio of hospital beds to population is lower in Region VII than in any other health service area in Florida. Although the amended health systems plan 1980-1984 specifies four hospital beds per 1,000 population, the HPC sometimes applies a rule of thumb designed to reflect the additional need for hospital beds in an area which has a larger component of elderly persons than the national average and which has seasonal swings in population. Under this rule of thumb, 1,055 patient days in hospitals are assumed for each 1,000 persons annually, along with the 75 percent average utilization rate for hospital beds. But applying this rule of thumb actually results in lower bed need projections than using the four beds per 1,000 population criterion which is used throughout the nation for populations without unusually high numbers of older persons and which do not fluctuate seasonally. As compared to four per 1,000, 1,055/365 X 100/75 yields 3.85+ beds per 1,000 population. Using the four bed per 1,000 approach, based on the medium population projections forecast by the University of Florida's Bureau of Economic and Business Research, Indian River County will require 269 hospital beds by 1984; Okeechobee County will require 95 hospital beds by 1984; Palm Beach County will require 2,738 beds by 1984; Martin County will require 282 beds by 1984; and St. Lucie County will require 396 beds by 1984. HCA Exhibit No. 1. Using the same four bed per 1,000 population formula, a region-wide deficit of 181 beds is forecast for 1984. HCA Exhibit No. 1. On the average, elderly people require more hospitalization than younger people require. The population of south St. Lucie County has a large component of elderly persons. Most of Port St. Lucie's residents are retirees. According to one estimate, 28 percent of the population of St. Lucie County residing south of Midway Road is older than 65. In Indian River, Okeechobee, Martin, and St. Lucie Counties, as a group, the proportion of persons over 65 to the whole population is higher than the national average. Approximately 29 percent of the population of Martin County is over 65. For Port St. Lucie and vicinity, hospital bed needs should be projected at four beds per 1,000 residents, at a minimum. On this basis, if no new beds are opened in Martin and St. Lucie Counties beyond those already certificated, and if the medium population projections are correct, there will be a deficit in the two-county area of 151 general acute care hospital beds by 1984, assuming residents of the area choose hospital care in the area. HCA Exhibit No. 1. In evaluating the need for hospital beds for residents of Port St. Lucie, Martin and St. Lucie Counties are the logical primary service area, instead of the four-county region that respondent used, which included Okeechobee and Indian River Counties, in addition to Martin and St. Lucie Counties. Less than ten percent of the residents of Martin and St. Lucie Counties requiring hospitalization leave the two-county area to be hospitalized. Palm Beach County is properly excluded and no party contends otherwise. Indian River and Okeechobee Counties should be excluded for the same reasons that Palm Beach County should be excluded. The distance from Indian River Memorial Hospital to Port St. Lucie is approximately the same as the distance from Port St. Lucie to the nearest hospital in Palm Beach County. Sebastian River Medical Center, the only other hospital in Indian River County, and Raulerson Hospital in Okeechobee County are further from Port St. Lucie than at least one and possibly two hospitals in northern Palm Beach County. No hospital could open its doors in Port St. Lucie until well into 1982, even if approved today. On the basis of four beds per 1,000 population, assuming that the medium population projections of the University of Florida's Bureau of Economic and Business Research are accurate, and assuming that Martin's expansion of its Stuart facility is accomplished this year, St. Lucie and Martin Counties will have a hospital bed deficit of 79 in 1981; 100 in 1982; 126 in 1983; and 177 in 1985. NEW CONSTRUCTION v. EXPANSION Martin has no plans to expand its Stuart facility beyond the 302 beds for which it has already obtained certificates of need. The final 50-bed expansion now going on will utilize the hospital's ancillary services facilities fully, and fill up all available parking areas. Any further expansion would require building a new, seventh floor without interrupting the operation of the hospital; and would necessitate construction of a multi-story parking garage at a cost of $4,200 per space. Adding 50 beds to its Stuart hospital would, moreover, require 28,000 square feet of new floor space and renovation of 2,000 additional square feet in order to house necessary ancillary facilities, all at a total projected cost of $10,556,001. Martin's Exhibit No. 1. Martin projects the cost of a 50-bed complex it proposes for Port St. Lucie at $9,768,001. Martin's Exhibit No. 1. The only other hospital that could be expanded to meet the needs of the burgeoning Port St. Lucie population is Lawnwood Medical Center, owned by HCA. Lawnwood Medical Center was designed and built with a view toward expansion, ultimately to more than 300 beds. HCA's employees project a need in 1984 for enough beds at Lawnwood Medical Center, over and above the 75 beds HCA proposes for Port St. Lucie, to justify an expansion of Lawnwood Medical Center in the near future. HCA personnel testified to plans to apply, within a year, for a certificate of need authorizing expansion of Lawnwood Medical Center by an unspecified number of beds. Adding to a hospital takes more time than constructing equivalent facilities from the ground up. Each department of the hospital must continue its work, even if delays in construction result. A 75-bed expansion of Lawnwood Medical Center would take 18 to 20 months, HCA's architect estimates, as opposed to the 12 to 14 months the same architect estimated would be necessary to build a new 75-bed hospital in Port St. Lucie. In general, larger hospitals require more floor area per bed than smaller hospitals require. Construction costs of adding 75 beds to Lawnwood Medical Center would be greater than the costs of constructing the 75-bed hospital HCA proposes for Port St. Lucie, but acquiring land for a new hospital would cost $500,000, which, when added to construction costs, would make a 75-bed new hospital more expensive than a 75-bed addition to Lawnwood Medical Center, by some 139,219 in 1980 dollars, a per-bed differential of 1,856 in 1980 dollars. HCA's Exhibit No. 4. Because the space available for ancillary services in Lawnwood Medical Center is such that a 50-bed expansion can more readily be accommodated than an expansion half again as large (which would involve an additional floor of the hospital outside any "shelled in" area) it would cost less to add 50 beds to Lawnwood Medical Center than to construct a new 50-bed hospital. Both Martin's Stuart facility and HCA's Lawnwood Medical Canter have costly specialized equipment which could not economically be duplicated at a new facility in Port St. Lucie. A new oncology center, for example, is planned for Lawnwood Medical Center at a cost of approximately $2,000,000. In order to use these specialized facilities, specimens and patients would have to be transported either to Stuart or to Ft. Pierce, and overnight stays would sometimes be required of patients. At least 80 percent of the patients at a new facility in Port St. Lucie would not require specialized services unavailable in Port St. Lucie, however. OSTEOPATHY ON THE TREASURE COAST The American Osteopathic Association has a membership of some 16,000 osteopathic physicians. Osteopaths practice in every state in the country, but 70 percent of them live in 15 states. The profession developed in Missouri, where it is now well established. Significant numbers of osteopathic physicians also live in Michigan, Ohio, Pennsylvania, and New Jersey, and, increasingly, Florida and California. At the time of the hearing, there were no osteopaths resident in St. Lucie County, and none maintained an office there. Outside of Palm Beach County, only seven osteopaths lived in HSA Region VII. No osteopath had applied for staff privileges at Lawnwood Medical Center or its predecessor since January 1, 1967. Under the by-laws of Lawnwood Medical Center, dental surgeons, podiatrists, and osteopaths, as well as allopathic physicians, are eligible for admitting privileges, but only if the practitioner resides in St. Lucie County and has an office in St. Lucie County. More than one osteopath has applied for admitting privileges at the hospital in Stuart, but none has been granted such privileges. Martin's Stuart facility's by-laws require two years' post-graduate education, for medical and osteopathic graduates alike, as a prerequisite to admitting privileges. Although neutral in form, this requirement is a barrier to most osteopaths, who typically complete one year of post-graduate education before entering general practice. One osteopath, a diplomate of the American Medical Association's Board of Family Practice with two years' education beyond osteopathy school was denied admitting privileges because his character did not measure up to Martin's credentials committee's standards, or so they stated. Many of the medical graduates on staff at the hospital in Stuart had only a single year of post- graduate training, but they were grandfathered in when the two years' requirement was adopted in the late 1970s. The hospital in Stuart does employ an osteopath on its emergency room staff, but he does not have admitting privileges at the hospital. Bruce C. Equi, an osteopathic physician, has an office in Stuart and 2,500 to 3,000 patients in the area. In 1979, he sent 300 patients to the Community Hospital of the Palm Beaches 45 miles away, where he has full staff privileges. A round trip from his office to visit a single hospital patient consumes two and a half hours. Loren Shefter, an osteopath whose office is in Port Salerno, Martin County, traveled an average of 160 miles a day the week before the final hearing, partly because he lives 28 miles from his office, but partly because his office is 40 miles from the Community Hospital of the Palm Beaches, the only hospital at which Dr. Shefter has admitting privileges. He is responsible for the care of about 3,000 families. After practicing in Miami for 20 years, Arthur A. Lodato, another osteopath, opened an office in Palm City just west of Stuart. Dr. Lodato has seen about 900 patients in his Martin County office. If a patient is hospitalized under Dr. Lodato's care, it is in Miami, where he still practices half-time. Dr. Textor in Jupiter, Florida, has six osteopathic patients from Martin and St. Lucie Counties. Upon admission to an osteopathic hospital, a "structural chart" is prepared for each patient. Depending on the results, certain "modalities of manipulative treatment" may be administered. Otherwise, the practice of osteopathic medicine resembles the practice of medicine by medical graduates; there are osteopathic radiologists, osteopathic pediatricians and so forth, but most osteopaths do not specialize. The Southeastern College of Osteopathic Medicine, the 15th such college in the United States, was chartered in 1979 and is located in Miami, where the first class is to matriculate in the fall of this year. Beginning In the fall of 1981, the plan is, students will leave the campus for the "clinical phase" of their education, which will take place in an osteopathic hospital. If there is an osteopathic hospital in Port St. Lucie by that time, and if it meets the College's standards, such students, as well as interns and residents, might work under the supervision of the hospital staff as part of their training. The opening of an osteopathic hospital would probably attract osteopathic physicians. There were 15 osteopaths in Palm Beach County when the Community Hospital of the Palm Beaches was originally planned. When it opened in 1975, there were 35, and now there are 65 osteopathic physicians in the area. APPLICATIONS REVIEWED HPC board members resident in counties other than Palm Beach County constitute the Indian River Area Committee, which considered all three of the applications at issue in the present proceedings. The Indian River Area Committee voted in favor of HCA's application (by a two-to-one margin), and voted disapproval of both StLHC's and Martin's applications to build a new facility in Port St. Lucie. Subsequently, the HRC recommended against HCA's application and against the StLHC application; and made no recommendation on Martin's proposal. Respondent's Office of Community Health Facilities then turned down all three applications, on grounds that there was no need for additional beds, that existing hospitals were under utilized, that a new facility would be inconsistent with the "objective of expanding existing facilities or use of primary satellite facilities," and, in the case of StLHC's application, that no lack of osteopathic facilities had been documented. THE APPLICANTS' PROPOSALS Martin would build a 50-bed inpatient facility, an ambulatory care center, and a physicians' office building in Port St. Lucie, at a total projected cost of $11,708,255. HCA would build a 75-bed hospital with emergency room facilities that would be the functional equivalent of Martin's proposed ambulatory care center, at a total projected cost of $ 8,357,848. A related company might build a physicians' office building nearby. StLHC would build a 125-bed hospital, with emergency room facilities that would be the functional equivalent of Martin's proposed ambulatory care center, at a total projected cost of $11,700,000. At the hearing, StLHC indicated a willingness to scale down its proposal. StLHC relies for financing (as a backup for unspecified primary financing) on a letter (typed on stationery without any letterhead) from an individual, one Joseph Iozia, dated September 17, 1980, addressed to Bruce Equi, M.D. [sic], stating: Please be informed that a mortgage loan of $18,000,000 has [been] set aside for the building of the St. Lucie Hospital in Stuart [sic], Florida. StLHC has given nothing as consideration for this supposed commitment to lend $18,000,000 at an unspecified interest rate at an unspecified time for an unspecified term. Martin has substantial assets, mainly in the form of the hospital in Stuart. It proposes to finance the satellite medical complex it plans for Port St. Lucie by issuing parity bonds; additional indebtedness would be secured by the same property that serves as collateral for an already outstanding bond issue, says Martin. But the existing indenture between Martin and its bondholders provides in part: Section 11.02 Parity Bonds. Additional Bonds may be issued on a parity and equality of rank with any Outstanding Bonds with respect to the security afforded by this Indenture, under the following conditions, but not otherwise: without regard to the requirement of subsection (c) of this section, not exceeding $750,000 for the purpose of completing the Project; without regard to the requirements of subsection (c) of this section, for the purpose of refunding any Outstanding Bonds which shall have matured or which shall mature not later than three months after the date of delivery of such additional Bonds and for the payment of which there shall be insufficient money in the Principal and Interest Fund, the Bond Redemption Fund and the Bond Reserve Fund; for the purpose of refunding any Outstanding Bonds or extending, improving, equipping or replacing the Hospital, including expenses of issuing such Bonds interest during any construction period and additional amounts to be deposited in the Bond Reserve Fund, if all of the following conditions shall have been met: either (A) the average annual Net Revenues for the two Fiscal Years immediately preceding the issuance of such additional Bonds, as evidenced by the annual audit required by Section 9.04(b) hereof, must have been equal to at least 1.20 times Maximum Annual Principal and Interest Requirements including the requirements of the additional Bonds; or (B) the average annual Net Revenues for the two Fiscal Years immediately preceding the issuance of such additional Bonds as evidenced by the annual audit required by Section 9.04(b) hereof, must have been equal to at least 1.10 times the average Annual Principal and Interest Requirements for such years; and the Net Revenues, as estimated in writing by a Hospital Consultant, for each of the two completed Fiscal Years next succeeding the date of completion, as estimated in writing by the Corporation's independent architect, of the improvements, extensions or replacements financed by the additional Bonds, will be not less than 1.25 times Maximum Annual Principal and Interest Requirements, including the requirements of the additional Bonds; the Corporation shall not be in default hereunder and the payments required by Section 6.01 hereof to be made into the various funds therein provided must be current; there shall be on deposit in the Bond Reserve Fund an amount equal to not less than Maximum Annual Principal and Interest Requirements, including the requirements for such additional Bonds; . . . For purposes of Section 11.02(c) of the indenture, "Hospital" is defined in Section 1.01 of the indenture to mean "the Hospital Site and any hospital facilities now or hereafter situated on the Hospital Site, and the Hospital Equipment." HCA called as a witness bond counsel, who testified that it was legally impossible for Martin to issue parity bonds to build a new and distinct facility in Port St. Lucie, because issuance of parity bonds for such a purpose is proscribed by Section 11.02 of the indenture. It was not clear from the evidence, moreover, that Martin could finance construction of the facility it proposes, even if it could sell every bond it planned to issue. HCA could finance construction of the 75-bed hospital it proposes for Port St. Lucie with cash from its operations; its revenues last year totaled 1.4 billion dollars. Alternatively, HCA, which is listed on the New York Stock Exchange, could borrow money from a bank, write commercial paper, or issue bonds. HCA has completed 159 projects since 1969. It spent $160,000,000 constructing hospitals in 1980. HCA has adequate financial, manpower, and management resources to build and operate a hospital at Port St. Lucie. HCA is second only to the federal government as a purchaser of hospital supplies and equipment. Because it purchases in large volume, it enjoys certain advantages. In every year since 1973, expenses per adjusted admission to HCA hospitals have increased, but every year the increase has been less than the average increase in expenses per adjusted admission for all members of the American Hospital Association for two same years. The same is true for increases in net revenue per adjusted admission. HCA Exhibit No. 14. None of HCA's hospitals in Florida has increased its annual daily service charge at a rate greater than 1.5 times the annual cost of living increase. (T. 1019.) In 1979, gross inpatient revenue per admission to HCA's Florida hospitals was slightly less than gross impatient revenue per admission to community hospitals in Florida in 1979. HCA Exhibit No. 14. HCA proposes that the new hospital in Port St. Lucie share laundry, CAT scanning, radiation therapy, and other services with Lawnwood Medical Center in Ft. Pierce. The Red Cross, the St. Lucie County Welfare Association, Inc., a nursing home in the area, and others have expressed a willingness to work with the staff of a new hospital in Port St. Lucie. All parties made posthearing submissions. Martin filed (proposed) findings of fact and conclusions of law as did HCA and respondent. StLHC addressed the issues in its brief. The parties' proposed findings of fact have been considered and, in large part, adopted in the foregoing findings of fact. To the extent proposed findings have not been adopted, they are deemed irrelevant or unsupported by the evidence adduced at hearing.
Recommendation It is, accordingly, RECOMMENDED: That respondent deny Martin's application for certificate of need. That respondent deny St. Lucie Hospital Corporation's application for certificate of need. That respondent grant HCA's application for certificate of need on condition that the by-laws of any hospital built pursuant to this certificate of need set no educational requirements for osteopaths, beyond the educational requirements necessary for licensure in Florida, as a prerequisite to conferring admitting privileges. DONE AND ENTERED this 28th day of April, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1981. COPIES FURNISHED: Jon C. Moyle, Esquire and Thomas A. Sheehan, III, Esquire Post Office Box 3888 West Palm Beach, Florida 33402 John Werner, Esquire Suite 110 1164 East Oakland Park Boulevard Fort Lauderdale, Florida 33334 Felix A. Johnston, Jr., Esquire Suite 112 1030 East Lafayette Street Tallahassee, Florida 32301 Claire D. Dryfuss, Esquire 1323 Winewood Boulevard Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES HOSPITAL CORPORATION OF AMERICA, MARTIN MEMORIAL HOSPITAL, and ST. LUCIE HOSPITAL CORPORATION, Petitioners, vs. CASE NO. 80-1687 80-1715 DEPARTMENT OF HEALTH AND 80-1731 REHABILITATIVE SERVICES, Respondent. /
