The Issue Did the Respondent violate Section 458.331(1)(t), Florida Statutes (1981),.by failing to practice medicine with the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances? Did the Respondent violate Section 458.331(1)(1), Florida Statutes (1981), by employing a trick or scheme in the practice of medicine when such trick or scheme fails to conform to the generally prevailing standards of treatment in the medical community?
Findings Of Fact At all times material hereto, the Respondent was a licensed physician in the State of Florida. The Respondent held Florida license number ME 0034228. Between December 19, 1981, and December 22, 1981, Ms. Jane Carroll went to the Women's Care Center in Miami, Florida. Ms. Carroll went to the Women's Care Center because she believed she was pregnant and wished to obtain an abortion. Ms. Carroll was 21 years of age. After arriving at the Women's Care Center, Ms. Carroll was given a bimanual pelvic examination. This examination consisted of the placing of two fingers in Ms. Carroll's vagina and pressing on her lower abdomen to determine the size of her uterus. Ms. Carroll was given a pregnancy test and she completed a Medical History Form in which she provided information concerning her medical history. During Ms. Carroll's first visit to the Women's Care Center, Ms. Carroll was told that the abortion would cost $625.00. On December 29, 1981, Ms. Carroll returned to the Women's Care Center for the purpose of obtaining the abortion. Ms. Carroll was driven to the Women's Care Center by Gloria and Alan Blake, who were friends of Ms. Carroll. Ms. Carroll arrived at the Women's Care Center at approximately 9:00 a.m. Ms. Carroll only had $400.00 when she arrived at the Women's Care Center. The Blakes left to obtain the additional $225.00 needed by Ms. Carroll. At approximately 10:00 a.m. Mr. Blake returned to the Women's Care Center with the additional $225.00. Mr. Blake gave the money to Ms. Carroll and then left the Women's Care Center. Ms. Carroll was to call Mr. Blake after the abortion was completed and Mr. Blake was to return to the Women's Care Center to give Ms. Carroll a ride home. Between 9:00 a.m. and 10:00 a.m. Ms. Carroll waited in the area of the Women's Care Center where the receptionist was located. She signed a Women's Care Center form acknowledging receipt of certain information and consenting to the procedure to be performed. The form described the procedure to be followed the anesthesia to be used, general complications associated with abortions and the responsibilities of Ms. Carroll and the Women's Care Center in the event of negligence. Ms. Carroll indicated on the form that her last menstrual period had begun on October 20, 1981. At approximately 10:30 a.m. Ms. Carroll was given a gown which she put on. At approximately 11:00 a.m. Ms. Carroll was taken to a room in the Women's Care Center where the abortion was to be performed. There were three individuals in the room where Ms. Carroll was taken: a woman dressed in white like a nurse, a man by the name of Mr. Barreiro and the Respondent. Ms. Carroll was placed onto a table in the room. Mr. Barreiro stood at her right and the Respondent was standing at the foot of the table. The woman dressed in white went in and out of the room. The Respondent performed a gynecological examination on Ms. Carroll. Mr. Barreiro assured Ms. Carroll that everything would be fine while the Respondent worked with a suction machine. Mr. Barreiro then gave Ms. Carroll an injection and Ms. Carroll quickly fell asleep. This occurred at approximately 11:30 a.m. After Ms. Carroll was anesthetized, the Respondent began to terminate Ms. Carroll's pregnancy by dilation and evacuation followed by curretage. After beginning the procedure, the Respondent determined that the fetus was larger than the Respondent had expected. The Respondent also believed that Ms. Carroll's uterus had been perforated. Therefore, the Respondent terminated the procedure without removing all of the fetus. Ms. Carroll awoke sometime after receiving the injection administered by Mr. Barreiro. As she awoke she heard the sound of a suction machine going off. She felt a pain in her abdomen like a knife. Mr. Barreiro and the Respondent were still present and she was in the same room. Mr. Barreiro and the Respondent helped Ms. Carroll into a wheelchair at which time she told them that she was in pain. She was assured that everything was fine and was taken to a small alcove in the back of the building. Upon arriving at the small alcove, which was used as a recovery room, Ms. Carroll was placed on a bed. Ms. Carroll again told Mr. Barreiro and the Respondent that she was in a great deal of pain. While in the recovery room, Ms. Carroll experienced continuous pain which she described as a punching and stabbing sensation in her abdomen. She continued to tell Mr. Barreiro, the Respondent and the woman dressed in white that she was in pain. Ms. Carroll was given pills and told that she was fine. Ms. Carroll was also told that she could go home. In addition to the pain, Ms. Carroll was cold and had difficulty breathing. Her feet, legs and hands became numb. She also floated in and out of consciousness. At some point the Respondent examined Ms. Carroll and Ms. Carroll observed the Respondent removing gauze from her vagina. The gauze was soaked in blood and when it was removed by the Respondent blood "gushed" out of her vagina. Clean gauze was then placed by the Respondent in her vagina. Ms. Carroll was given Ergotrate and Oxytocin which are used to stop bleeding. Ms. Carroll communicated the pain and the numbness she was experiencing to the Respondent, Mr. Barreiro and the woman dressed in white. At some point another woman was brought to the recovery room. The woman remained in the room for 30 to 40 minutes and then left. When the woman left, Mr. Barreiro told Ms. Carroll that she should also leave stating, "See. See, she left. She's fine. Now why can't you go? We're closing soon. You've got to go." Ms. Carroll could not walk. In order to vomit, Ms. Carroll had to crawl to where she vomited. She told the Respondent, Mr. Barreiro and the woman in white that she could not leave. Despite these facts, Ms. Carroll was repeatedly told to leave. At sometime while in the recovery room, Ms. Carroll heard someone at the Women's Care Center talking on the telephone and telling someone that Ms. Carroll had already left. The pain, numbness and inability to breathe which Ms. Carroll experienced continued from the time she was taken to the recovery room until she was eventually taken to the hospital. She continued to communicate the fact that she was in pain to the individuals who were in the room. The conversations she had were primarily with the woman in white and Mr. Barreiro. Although she did not have any direct conversation with the Respondent, the Respondent was present when she reported her condition. Throughout the time that she was in the recovery room, Ms. Carroll was given pills and told that she could go home, despite her complaints and the bleeding. The Blakes waited at home for Ms. Carroll to call them so that they could go pick her up and give her a ride home from the Women's Care Center to her apartment where her car was. At approximately 4:30 p.m. Gloria Blake called the Women's Care Center. Ms. Blake told Mr. Blake that she had been told by someone at the Women's Care Center that Ms. Carroll had already left. Mr. Blake believed that Ms. Carroll did not have any way of leaving the Women's Care Center. Therefore, Mr. Blake went to the Women's Care Center. Mr. Blake arrived at the Women's Care Center at approximately 4:45 p.m. or 5:00 p.m. The entrance to the Women's Care Center was being closed and locked when he arrived. Mr. Blake pushed his way into the building and asked where Ms. Carroll was. He was told that she was resting. Mr. Blake asked Mr. Barreiro how Ms. Carroll was and was told that "she's had a little problem, but everything is going to be okay. She's resting." Mr. Blake was told that he could not see Ms. Carroll yet. Mr. Blake next talked to the Respondent. When the Respondent was asked where Ms. Carroll was, the Respondent told him that she was in the back and that she was resting. The Respondent also told Mr. Blake that "things did not go well." Mr. Blake asked the Respondent what he meant by that statement and the Respondent told Mr. Blake "the baby was too big and I couldn't get everything out and it was coming out in pieces." At approximately 5:00 p.m. or 5:15 p.m., following Mr. Blake's conversation with the Respondent, Mr. Blake went back to the recovery room where Ms. Carroll was located. Ms. Carroll was doubled up on the bed, she was pale and sweaty and her eyes were dilated. Ms. Carroll was writhing and moaning and groaning. Gauze soaked with blood was located in Ms. Carroll's groin area. Mr. Blake witnessed the woman in white replace bloody gauze. Mr. Blake remained with Ms. Carroll in the recovery room for approximately ten minutes. Mr. Barreiro indicated to Mr. Blake that Ms. Carroll was to be taken to a hospital. Mr. Blake was ultimately told that Ms. Carroll would be taken to Hialeah Hospital and Mr. Blake left. Ms. Carroll did not recall whether anyone took her pulse, respiration or blood pressure prior to the abortion. She also did not recall whether anyone took her pulse or blood pressure while she was in the recovery room because she was in and out of consciousness. Mr. Blake did not see any medical equipment such as a stethoscope or blood pressure cuffs in the recovery room. Mr. Blake was only in the recovery room for about ten minutes, however, Ms. Carroll's pulse and blood pressure readings were abnormal when she arrived at Hialeah Hospital. This fact is insufficient to support an inference that the Respondent failed to monitor her vital signs, however. Based upon the foregoing, it is concluded that the evidence does not establish if the Respondent failed to monitor Ms. Carroll's vital signs or did in fact monitor Ms. Carroll's vital signs. After Mr. Blake left the Women's Care Center, the Respondent and Mr. Barreiro took Ms. Carroll to Hialeah Hospital. They arrived at the hospital at approximately 6:51 p.m. on December 29, 1981. Upon arrival at the hospital emergency room, Ms. Carroll's pulse rate was 108 beats per minute, her respiration rate was 24 per minute and her blood pressure was "50/?". Nurse's notes described Ms. Carroll as "diaphoretic [sweaty] with vaginal bleeding." Physician's notes indicated that Ms. Carroll's abdomen was distended with generalized rigidity and rebound tenderness. Between approximately 7:00 p.m. and 8:00 p.m., Dr. Jorge Vallejo, M.D., was called and asked by Dr. Esquivel, an emergency room physician, to come to the hospital to examine Ms. Carroll. Dr. Vallejo complied with this request. Based upon Dr. Vallejo's examination, Ms. Carroll was in shock and had a distended and tender abdomen, with muscle rigidity. Dr. Vallejo determined that Ms. Carroll was in shock because she had very low blood pressure, a rapid pulse and she was faint, diaphoretic and obtundant. Because of the condition of her abdomen, Dr. Vallejo suspected that there was peritoneal irritation caused by blood in her abdominal cavity. Peritoneal irritation is irritation of the peritoneum, a membrane that separates the abdominal wall from the bowels. If pus or blood gets into this area, the mucosa becomes irritated, which causes pain. Peritonitis would have occurred shortly after the Respondent stopped the abortion because one of the two main arteries in Ms. Carroll's uterus had been severed. The severed artery released blood into Ms. Carroll's abdominal cavity. Dr. Vallejo concluded that Ms. Carroll was bleeding internally and she was rushed to surgery. In surgery Ms. Carroll was examined vaginally with uterine sound and determined to have a "huge perforation" of her uterus. Therefore Ms. Carroll's abdomen was opened. Ms. Carroll's uterus had been torn from the cervix to the cornu (from the top of her uterus to the bottom). She also had a blood formation in her pelvic wall and the artery on the right side of her uterus had been severed. Ms. Carroll's abdomen contained between three and four liters of blood. There are only about four liters of blood in the body. Dr. Vallejo performed a partial hysterectomy on Ms. Carroll, removing her uterus. Dr. Vallejo was assisted by Walter Furr, M.D. Several fetal parts were found in Ms. Carroll's abdominal cavity and were removed: a mascerated scalp, nose, upper legs, palate and neck measuring 8.0 x 3.5 x 5.0 cm. and the lower abdomen, buttocks, perineum and upper thighs measuring 8.0 x 6.0 x 3.0 cm. Based upon the size of these female fetal parts, the fetus was between five and five and a half months old. An initial physical examination of a pregnant woman, if a termination of pregnancy is anticipated, should consist of a determination of the medical history of the woman (past illnesses, past medical problems and history of biology) and a physical examination of the woman. The physical examination of the woman should consist of confirming anything brought to light by her medical history, an examination of her abdomen, her uterus and other areas of the body and a pelvic examination to confirm the size of the uterus. The size of the uterus is determined by abdominal palpation and pelvic examination. As the period of gestation increases, the fetus matures and becomes larger and the uterus increases in size. The age of the fetus and the size of the uterus must be determined in order to determine what method of abortion is to be used. At ten weeks of pregnancy, the uterus is normally within the pelvis and is palpable. At seventeen weeks the uterus is about half way to the umbilicus (the bell button) and the cervix is long and closed. At twenty weeks the uterus is usually around the umbilicus. The cervix softens later in pregnancy and will dilate more readily. A physician should have a good idea based on a physical examination as to how long a patient has been pregnant based upon the location of the uterus. The methods of terminating a pregnancy include dilation and curretage, dilation and evacuation with suction curretage, dilation and evacuation and injection of substances into the cavity of the uterus which initiates uterine contractions. Dilation and curretage involves dilation of the cervix and the removal of the products of conception by means of ring forceps and a curette. A curette is a thin instrument with a little loop at the end, one edge of which is sharp, used to scrape the wall of the uterus. This method is used during the first three months of pregnancy and is performed under a local anesthesia or general anesthesia. Dilation and evacuation using suction curretage is also used during the early stages of pregnancy. Dilation and evacuation involves dilation of the cervix and removal of the fetus piecemeal. This method is usually used up to the eighteen week of pregnancy. Methods involving injections include the injection of saline solution or prostaglandins. These methods are used for later pregnancies. The injected substance initiates uterine contractions causing the patient to abort. If dilation and evacuation is used, the cervix must be properly dilated. If the pregnancy is further along (up to about eighteen weeks) the cervix must be prepared ahead of time because the cervix is often firm and will not dilate quickly. Laminaria is inserted the night before the abortion to prepare the cervix. The problems associated with abortion methods involving suction and curretage include the possibility that the uterus may be damaged when the cervix is dilated or by use of the curette. The major complication is that the uterus may be perforated. Another possible complication is that the tissue of the pregnancy may not be completely removed resulting in infection or bleeding. The latter complication is a possibility of all of the methods. The same complications may be experienced when dilation and evacuation is employed. Also, the uterus may be perforated by pieces of the fetus, which is more mature and must be broken into pieces, or the cervix could be torn. The risks of using injections of saline or prostagladin include an adverse reaction to the saline or prostagladin, failure to abort and failure to abort all of the tissue of pregnancy. Once a procedure is selected and the abortion is started, if the physician believes that the patient's uterus has been perforated and that fetal parts remain in the patient's body, the physician should take steps to determine if the uterus has in fact been perforated and to remove all of the tissue of the pregnancy. If the abortion is being performed in a clinic and not a hospital, the patient should be transferred to a hospital (where exploratory surgery can be performed) as soon as the physician suspects that the uterus has been perforated. If a physician suspects that a patient's uterus has been perforated it may not be possible to remove all of the fetal parts. In such a case, the patient should be transferred to a hospital, if the abortion is being performed in a clinic, at once. If a physician suspects that the uterus has been torn and therefore cannot remove all of the fetus, it is inappropriate to delay transferring the patient to a hospital. An abortion can be completed in a matter of minutes, under certain circumstances. If, however, difficulties are encountered during the abortion, one hour should be enough. If the procedure cannot be completed within an hour, the abortion should be halted. Ms. Carroll's abortion began at approximately 11:30 a.m. Because the Respondent encountered difficulties during the abortion (including a possible tear in Ms. Carroll's uterus and the Respondent's inability to remove all of the tissue of pregnancy), the procedure should have been terminated by approximately 12:30 p.m. Once an abortion is completed, the patient should be observed to insure that there is no evidence of bleeding either from below or intra-abdominally. Unless the physician suspects that the patient's uterus has been perforated or that fetal parts remain, the patient should be observed until the physician is sure the patient is completely stable. During this time the patient should be observed to determine the amount of bleeding. There is a normal amount of bleeding after any abortion. The flow of blood is normally small, however, and should diminish over the next few hours. The patient should also be observed for any abdominal discomfort or distention and the patient's vital signs, including pulse and blood pressure, should be checked. If the patient is further along in the pregnancy and the uterus is large enough for the physician to feel the uterus through the abdominal wall, then the uterus should be palpated to determined if it is firmly contracted which is important in stopping bleeding. Symptoms of hypovolemia (lack of circulating blood volume) following an abortion include numbness of the hands, feet and legs, difficulty in breathing, difficulty in getting around and acute, persistent pain. This is especially true if the patient is also bleeding. If a patient is experiencing these symptoms, the physician should look for evidence of internal or external bleeding. The patient's blood pressure and pulse should be monitored. The Respondent knew or should have known within a short time after stopping Ms. Carroll's abortion that her uterus had been perforated, that she was suffering from hypovolemia and that she was probably experiencing internal bleeding. The Respondent also knew or should have known that not all of the fetal parts had been removed from Ms. Carroll. An examination of the fetal parts which the Respondent did remove would have revealed that not all of the tissue of pregnancy had been removed. Additionally, the Respondent indicated to Mr. Blake that he believed that he had not removed all of the fetal parts. Perforation of the uterus was not, in and of itself, malpractice. Rapid dilation of the cervix is also not malpractice. A decision to use dilation and evacuation or suction and curretage for a woman who is between seventeen weeks and five and a half months pregnant is not malpractice. The Respondent failed to practice medicine within minimally acceptable standards of care, skill and treatment as recognized by reasonably similar prudent physicians under similar conditions and circumstances, and failed to practice medicine within prevailing community standards of care, skill and treatment, in that he failed to appropriately manage Ms. Carroll's bleeding and failed to immediately transport Ms. Carroll to a facility where the internal bleeding Ms. Carroll was experiencing could be properly treated and where the fetal parts still in her body could be removed. The Respondent waited approximately five and a half hours to six and a half hours after terminating the abortion to transport Ms. Carroll to a hospital. Based upon Ms. Carroll's symptoms after the abortion, Ms. Carroll should have been transported to a hospital immediately after the abortion was terminated and the Respondent suspected that her uterus had been perforated. No evidence was presented at the hearing to establish that the Respondent has been found guilty of any prior violations of Section 458.331, Florida Statutes. It does not appear that the Respondent employed a trick or scheme in his treatment of Ms. Carroll.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent be found not guilty of violating Section 458.331(1)(1), Florida Statutes (1981). It is further RECOMMENDED: That the Respondent be found guilty of violating Section 458.331(1)(t), Florida Statutes (1981). It is further RECOMMENDED: That the Respondent's license to practice medicine in the State of Florida be suspended for a period of three (3) years. It is further RECOMMENDED: That the Respondent's license to practice medicine in the State of Florida be placed on probation following the three year suspension for a period of two (2) years, subject to such conditions as the Board of Medicine may specify. DONE and ENTERED this 26th day of December, 1985, in Tallahassee, Florida. LARRY J. SARTIN 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 26th Day of December, 1985. APPENDIX The parties have submitted proposed findings fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they were accepted. Those proposed findings of fact which have been rejected and the reason for their rejection has also been noted. Paragraph numbers in the Recommended Order are referred to as "RO." Petitioner's Proposed Findings of Fact: Paragraph 1: RO 1. Paragraph 2: RO 2. Paragraph 3: RO 3 and 4. Paragraph 4: RO 3. Paragraph 5: RO 5. Paragraph 6: RO 5. Paragraph 7: RO 5. Paragraph 8: RO 6. Paragraph 9: RO 7. Paragraph 10: RO 8. Paragraph 11: RO 9. Paragraph 12: RO 9 and 27. Paragraph 13: RO 10. Paragraph 14: RO 10. Paragraph 15: RO 11. Paragraph 16: RO 12. Paragraph 17: RO 12 and 13. Ms. Carroll did not begin to experience a lot of pain when she was placed on a bed in the recovery room. She began experiencing pain before that time and the pain continued Paragraph 18: RO 14. Paragraph 19: RO 14. Paragraph 20: RO 15, 16 and 17. Paragraph 21: RO 21. Paragraph 22: RO 15 and 18. Paragraph 23: RO 19. Paragraph 24: RO 21. Paragraph 25: RO 20. Ms. Carroll did not hear people in the clinic telling the Blakes that she was not in the Women's Care Center. Ms. Carroll merely thought it was the Blake's someone in the Women's Care Center was talking to when they said that she was not there. Paragraph 26: RO 22. Paragraph 27: RO 23. Paragraph 28: RO 24. Paragraph 29: RO 25. Paragraph 30: RO 25. Paragraph 31: RO 25 and 26. Paragraph 32: RO 27. Paragraph 33: RO 25. Paragraph 34: RO 28 and 29. Paragraph 35: RO 30. Paragraph 36: RO 30. Paragraph 37: RO 30. Paragraph 38: RO 31 and 33. The evidence does not establish that Ms. Carroll was given a transfusion of six pints of blood before being rushed to surgery. The evidence only showed that she was receiving blood transfusions and that Dr. Vallejo "asked for six pints of blood to have enough blood, you know, to replace." Paragraph 39: RO 31 and 34. Paragraph 40: RO 34. Paragraph 41: RO 31 and 33. Paragraph 42: RO 33. Paragraph 43: RO 37. Paragraph 44: RO 39. Paragraph 45: RO 37. Paragraph 46: RO 39. Paragraph 47: RO 38. Paragraph 48: RO 39. Paragraph 49: RO 35. Paragraph 50: RO 35 and 36. Paragraph 51: RO 36. Paragraph 52: RO 36. Paragraph 53: RO 44. Paragraph 54: RO 40. Paragraph 5 5: RO 45. Paragraph 56: RO 45. Paragraph 57: RO 47. Paragraph 58: RO 42 and 43. Paragraph 59: RO 41. Paragraph 60: RO 30. Paragraph 61: RO 46. Paragraph 62: RO 27 and 48. The evidence does not establish that the Respondent failed to monitor Ms. Carroll's vital signs. Paragraph 64: RO 27 and 48. The evidence does not establish that the Respondent failed to monitor Ms. Carroll's vital signs.. Respondent's Proposed Findings of Fact: Paragraph 1: RO 1,2, 3 and 6. Paraeraph 3: RO 5 and 11. Paragraph 4: RO 11. Paragraph 5: RO 16. Paragraph 6: RO 15 and 21. Paragraph 7: RO 2A. The evidence does not establish that the Respondent transported Ms. Carroll to Hialeah Hospital "[w]hen the medication failed to stem the bleeding " Paragraph 8: RO 31 and 33. Paragraph 9: RO 6 and 37. Paragraph 10: RO 40 and 44. The evidence does not support a finding that the Respondent's medical notes concerning when Ms. Carroll was taken to the hospital were correct. Therefore, Dr. McLeod's testimony to the effect that it was not malpractice to take Ms. Carroll to the hospital "at once" is irrelevant. Paragraph 11: RO 30 and 34. Paragraph 12: RO 47. COPIES FURNISHED: Stephanie A. Daniel, Esquire Staff Attorney Department of Professional Regulation 130--North Monroe Street Tallahassee, Florida 32301 Vincent J. Flynn, Esquire Flynn and Taricoff 1414 Coral Way Miami, Florida 33145 Dorothy Faircloth Executive Director Department of Professional Regulation, Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 ================================================================ =
The Issue The issue is whether Respondent is guilty of failing to practice in accordance with the applicable standard of care or failing to keep adequate medical records and, if so, what penalty should be imposed.
Findings Of Fact At all material times, Respondent has been a licensed physician, holding license number ME 44240. He has been licensed in Florida since 1984. Respondent has practiced plastic surgery, particularly cosmetic plastic surgery, for the past 22 years. Respondent is certified by the American Board of Plastic Surgery in plastic surgery. He was also certified in Advanced Cardiac Life Support (ACLS) at the time of the surgery in question. The Board of Medicine previously disciplined Respondent by Final Order filed September 1, 1995, pursuant to a Consent Agreement into which the parties had entered. The Consent Agreement arose from allegations that Respondent had failed to remove a sponge from a breast during breast augmentation surgery. Respondent did not admit the allegations, but agreed to pay a $2000 fine and attend ten hours of continuing medical education. The Administrative Law Judge admitted this evidence strictly for the purpose of penalty, not liability. Respondent performs plastic surgery at the Cosmetic Surgery Center in Fort Lauderdale. The 5000 square-foot facility contains three examination rooms, two operating rooms, one recovery room, and an overnight hospital. Another physician also operates at the Cosmetic Surgery Center, which employs a wide range of staff, including a patient coordinator, nurse practitioner, and a certified register nurse anesthesiologist (CRNA). In the past, the Cosmetic Surgery Center retained a CRNA to assist in surgery on an as-needed basis. However, since mid-2005, the Cosmetic Surgery Center has regularly employed a CRNA after the Board of Medicine issued an Order of Emergency Restriction of License on June 8, 2005. Issued in response to the incident described below, the emergency order requires, among other things, that Respondent employ a CRNA or M.D. anesthesiologist to administer anesthesia at all surgeries, unless the surgery will involve Level I sedation. The emergency order also requires Respondent to obtain an unqualified surgical clearance from every patient's primary care physician. Respondent has performed over 10,000 procedures using Level II sedation over 25 years. Level II sedation leaves the patient conscious, but tranquil, and responsive to painful stimulus or verbal command. Level III sedation leaves the patient unconscious. This case involves a 50-year-old female, S. B., who presented to Respondent's office on July 9, 2003, to discuss the possibility of an abdominoplasty, breast augmentation, and arm lift. Respondent had previously performed an abdominoplasty, which is also known as a tummy tuck, on S. B.'s daughter, who wanted to make a present of cosmetic surgery for her mother. After examining S. B., Respondent recommended against any work on the arms, as the surgical scars would outweigh the benefits of the surgery for S. B. During this initial office visit, Respondent took a history from S. B., who had three children and was employed as a receptionist for a local roofing company. S. B. stated that her general health was good, and she had never had significant complications from any surgery. She reported that her only medical problem was hypertension and that she consequently took clonidine and Lasix. She stated that she had never reacted badly to general or local anesthesia, did not bruise easily, and did not bleed excessively from cuts. The form asked the patient to list intoxicating or mind-altering drugs, and S. B. did not list any. At no time during the July 9 visit did S. B. express an intent to proceed with the surgery, and, in fact, she was undecided at the time and remained so for several months. Respondent next saw S. B. on December 11, 2003, when she presented at his office for a pre-operative examination. Respondent again discussed the surgical procedures. During this visit, S. B.'s blood pressure was 210/112, which was too high for Respondent to perform elective surgery. Instead, he discussed with S. B. the need to control her blood pressure and learned that she had quit taking her blood pressure medication. Respondent told S. B. to see her primary care physician to control the blood pressure. Respondent's notes document S. B.'s blood pressure, the referral, and the purpose of the referral. In anticipation of surgery on December 23, 2003, Respondent prescribed on December 11, 2003, fifteen 500-mg tablets of Duricef, fifteen 10-mg tablets of Lorcet, and fifteen 30-mg tablets of Restoril. Duricef is an antibiotic. An analgesic, Lorcet combines 10 mg of hydrocodone, an opioid, with acetaminophen. Restoril, or temazepam, is a sedative in the benzodiazepine family and is similar to Valium. Respondent typically prescribes these or similar medications, so that his patients can fill them prior to surgery and take them following surgery. On December 11, 2003, Respondent also ordered pre- surgical lab work. The lab report, dated December 12, 2003, states that S. B.'s values were largely normal. However, S. B.'s prothrombin time (PT), which measures clotting time, was very slightly elevated. The normal range for this parameter for this laboratory is 11-13 seconds, and the PT for S. B. was 14.8 seconds. However, the International Normalization Ratio (INR), which normalizes results among labs and tissue samples, was 1.4, which is within the normal range, as was the partial thromboplastin time (PTT), which is another measure of clotting time. S. B.'s red blood cell count was very slightly high (6.13 as compared to a range of 4.2-6.1 units per liter). Also very slightly low were S. B.'s M.C.V. (79.0 as compared to a range of 80.0-99.0 units), M.C.H. (26.3 as compared to a range of 27.0-31.0 units), and M.C.H.C (32.7 as compared to a range of 33.0-37.0 units per liter). Very slightly high was S. B.'s R.D.W. (15.4 as compared to a range of 11.5-15.0 percent). Except for the red blood cell count, the other parameters pertain to precursors of cells. The next day, Respondent added to the pre-operative prescriptions two 5-mg tablets of Mephyton, which is vitamin K. The medical records contain no discussion of why Respondent added vitamin K the day after he had ordered the other pre- operative medications. Most likely, this information would have been contained in Respondent's notes, which are in a handwritten scrawl that is partly illegible. Clearly, though, Respondent's notes fail to disclose the purpose of ordering Respondent to take vitamin K. Respondent testified that he was responding to the PT value, explaining that he gives vitamin K to patients with borderline clotting studies, so that the patients will not experience as much bruising and swelling. More important than the records' failure to contain an explanation for the ordering of vitamin K is their failure to address the high PT value in Respondent's plan of treatment for S. B. Even if only borderline high and more suggestive of problems involving only bruising and swelling, the PT raised a clotting issue, which is of obvious importance given the nature of the contemplated surgery. Respondent's records must address this issue and the impact, if any, on the contemplated surgery. In retrospect, the PT abnormality proved irrelevant. S. B. did not display any clotting problems or excessive bleeding during the surgery. At the hearing, Respondent explained the limitations of a PT value, especially when it is unaccompanied by an abnormal INR, although Respondent obviously thought enough of the PT test to order one for S. B. More cogent is Respondent's explanation at the hearing that the absence of any reported history of bleeding or bruising outweighed any concerns raised by a slightly elevated PT value, but this persuasive analysis is nowhere to be found in the medical records. Petitioner argues alternatively, though, that the slightly elevated PT value should have alerted Respondent to cirrhosis, which is discussed in more detail below. At the pre- operative stage, at least, the history, findings, and complaints did not support a diagnosis of cirrhosis. In his pre-operative physical examination, Respondent found no evidence of jaundice or edema. S. B.'s anemia had resolved. Her history lacked any indication of liver disease, nor did S. B. complain of any symptoms consistent with cirrhosis. These facts, as well as the information supplied by S. B.'s primary care physician, justified Respondent's failure to explore the possibility of liver disease prior to proceeding with surgery. Nor did the circumstances impose a duty on Respondent to include in the medical records a plan of treatment that addressed the possibility of cirrhosis. The facts reasonably known to Respondent did not raise the possibility of cirrhosis, any more than they raised the possibility of heroin use by S. B. It is thus irrelevant to Respondent's documentation duties, although not necessarily to her death approximately 30 hours after the end of the surgery, that S. B. suffered from some degree of cirrhosis and used heroin. On December 31, 2003, S. B.'s primary care physician completed a "Medical Clearance" form, even though Respondent had not requested a medical clearance, but had required only that the physician do what was necessary to get S. B.'s blood pressure under control. On the form, S. B.'s primary care physician noted that S. B.'s past history consisted of hypertension and, in June 2000, anemia. The addition of the date implied that S. B. no longer suffered from anemia--a fact borne out by her elevated red blood cell count. On the form, the primary care physician noted that her blood pressure was 160/98 and pulse was 80, changed one of S. B.'s blood pressure medications, and cleared her for surgery under local and general anesthesia, "once BP < 150/90." Two items on the Medical Clearance form support Respondent's decision not to investigate the possibility of liver disease before performing surgery. First, as noted above, the form indicates that S. B.'s anemia had resolved. It would be reasonable to assume that S. B.'s primary care physician was especially attentive to indicators of anemia or liver disease given this history. Second, the Medical Clearance indicates that S. B.'s primary care physician had ordered a comprehensive metabolic panel, which would include tests of liver function. The absence of any further contact from the primary care physician implies that the comprehensive metabolic panel revealed nothing of importance as to liver function, and the function of the liver is obviously important--not its post- mortem condition. On January 15, 2004, S. B. presented at the Cosmetic Surgery Center for an abdominoplasty with liposuction to the waist area. Respondent's scrawled notes do not disclose why he or S. B. decided not to proceed with the breast augmentation. In the pre-operative evaluation, which is initialed by Respondent, S. B.'s pulse was 95, and her blood pressure was 162/96, with the notation that she was nervous. Her rating on the American Society of Anesthesiologists (ASA) scale is I, meaning that she has no disease. Respondent concedes that her hypertension warranted a II, which means some systemic disease, but not threatening. However, the mis-rating on the ASA scale is irrelevant because it did not impact her treatment or outcome. The pre-operative evaluation contains two other notations of interest. First, Respondent planned for S. B. to remain overnight at the Cosmetic Surgery Center, rather than to discharge her to home on the day of the surgery or transfer her to a hospital. Thus, her remaining at the facility the night of the surgery did not suggest an unusually difficult surgery or recovery. Second, Respondent found S. B. fit for surgery under I.V. sedation in the office, rather than local or general anesthesia. Obviously, the pre-operative evaluation reports a blood pressure in excess of the maximum listed in the medical clearance that Respondent had received from S. B.'s primary care physician. Respondent's medical records fail to address this discrepancy and the broader issue of S. B.'s blood pressure, which was about the same as it was when she visited her primary care physician, but considerably lower than when she last visited Respondent. Respondent could and did reasonably exercise his own medical judgment and proceed with surgery despite a blood pressure in excess of the maximum on the medical clearance, but given this recommendation, S. B.'s extremely elevated blood pressure a month earlier, the challenges of maintaining reasonable blood pressure levels intra- and post- operatively, and S. B.'s hypertensive condition, Respondent was required to document his reasoning for proceeding with surgery despite the relatively high blood pressure. At hearing, Respondent offered a persuasive explanation of why he proceeded to perform the surgery despite a blood pressure reading over 150/90. Attributing the elevated blood pressure (and pulse) to adrenalin-producing anxiety, not hypertension, Respondent decided that he would be able to control S. B.'s blood pressure adequately during surgery with sedatives and blood pressure medication. Considerable evidence indicates that S. B. was a very nervous patient. S. B.'s pulse was also quite rapid on both visits. As was the case with the PT value, it is easier to credit Respondent's reasoning given hindsight, as he successfully controlled S. B.'s blood pressure during surgery. During surgery, Respondent's nurse practitioner, Michelle Huff, monitored heart function by an EKG, blood oxygenation and pulse by a disposable pulse oximeter, blood pressure, and respiration. During the surgery, Respondent was also assisted by Tiffany Archilla, a certified surgical technologist. At Respondent's direction and under his supervision, Nurse Hoff, administered the following drugs immediately before and during surgery: Diprivan, which is an anesthetic whose specific effect depends on rate of administration; Versed, which is a sedative; Robinul, which controls nausea; Ancef, which is an antibiotic; fentanyl, which is an analgesic and anesthetic; and labetalol, which controls blood pressure. Nurse Huff also administered oxygen and nitrous oxide, which is an anesthetic. Nurse Huff had been working at the Cosmetic Surgery Center for only two months at the time of S. B.'s surgery. Nurse Huff is not a CRNA, but is an advanced registered nurse practitioner and has been a registered nurse for 14 years. At the time of the hearing, she had been employed for three years at the Cosmetic Surgery Center, where she also had completed an internship. She estimates that she has participated in over 1000 surgical procedures involving Level II sedation. At 8:40 a.m., Nurse Huff administered 2.5 mg of Versed, 0.2 mg of Robinul, and 1.0 g of Ancef. At 8:45 a.m., Nurse Huff started the oxygen, nitrous oxide, and Diprivan drip. The oxygen was in a two-liter bottle, and the nitrous oxide was in a four-liter bottle. The Diprivan was 500 mg in a 500 cc solution. During the surgery, Nurse Huff administered all of this Diprivan, as well as all of another 200 mg of Diprivan in a 250 cc solution, given S. B.'s resistance to sedation. In most cases, and probably in this one, Respondent uses a microchamber, which releases microdrips at the rate of 60 drops per minute. Respondent does not administer Diprivan by means of an infusion pump, which would offer more precise control of the rate of infusion. The records do not indicate the rate of administration of the Diprivan. However, Respondent rarely finds it necessary to discontinue Diprivan during surgery, and its clinical effect wears off after only about three minutes following its discontinuation, so the patient arouses quickly after Diprivan is stopped. Thus, the failure to record the rate of administration of the Diprivan is immaterial. At 8:45 a.m., Nurse Huff also administered 100 mg of fentanyl, which was followed by 50 mg doses at 8:50 a.m., 8:55 a.m., 9:05 a.m., 9:35 a.m., 9:45 a.m., 10:05 a.m., and 10:10 a.m. S. B. thus received a total of 450 mg of fentanyl. The surgery commenced at 9:30 a.m. At the start of surgery, Respondent administered subcutaneously at the surgical site 150 cc of one percent lidocaine, which is a local anesthetic, with epinephrine at 1/200,000. The epinephrine prevents the body from quickly absorbing the lidocaine. S. B.'s blood pressure had varied between 8:40 a.m. and 9:30 a.m. It started at 164/97, but was 135/85 15 minutes later. Her blood pressure remained at 145/85 from 9:00 a.m. to 9:10 a.m. At the time of surgery, S. B.'s blood pressure was 162/88. In response to the start of surgery and reflective of S. B.'s level of anxiety, her blood pressure surged to 180/95 at 9:45 a.m., and Respondent directed Nurse Huff to administer 2.5 mg of labetalol at this time. S. B.'s blood pressure reached 190/80 at 10:00 a.m., five minutes after Nurse Huff had administered another 2.5 mg of labetalol. By 10:10 a.m., S. B.'s blood pressure was down to 125/75, where it remained for the remainder of the surgery. S. B.'s other vitals remained good during the surgery. Oxygenation saturation remained over 96 percent, mostly 97 and 98 percent. Respiration remained around 18. Pulse ran in proportion to blood pressure, but settled within the range of 80-90 once S. B.'s blood pressure stabilized at 10:10 a.m. Blood loss was minimal during the surgery. Typically, a patient may lose 200-300 cc of blood, but S. B. lost only 150 cc. Proceeding conservatively, Respondent did not try to tighten the muscle wall, as he found, once he had made the incisions, that S. B. did not require this procedure. The liposuction removed 200 cc, including 150 cc of fat. Anesthesia ended at 11:05 a.m., and surgery ended at 11:10 a.m. During the surgery, S. B. had received 2000 cc of fluids. At all times, S. B. remained active and alert. Evidencing S. B.'s level of alertness during surgery was her high oxygen levels at all times during surgery and the necessity of additional Diprivan. At 11:20 a.m., S. B. was transported by stretcher from the operating room to the recovery room. At this time, her oxygen level was 98 percent, her blood pressure was 179/97, her pulse was 96, and her respiration was 16. At 11:30 a.m., S. B. received 2.5 mg of labetalol. At 11:35 a.m., S. B. was complaining of anxiety, so she received 2.5 mg of Valium. At 11:40 a.m., a nurse emptied her Foley catheter of 1600 cc of clear yellow urine. At this time, S. B.'s blood pressure was 184/105, her pulse was 95, her respiration was 16, and her oxygen level was 96 percent. She received another 2.5 mg of labetalol. At 11:45 a.m., S. B. received another 2.5 mg of Valium. At 12:15 p.m., S. B.'s blood pressure was 164/92, and she received clonidine 0.1 mg to reduce her blood pressure. Fifteen minutes later, S. B.'s blood pressure dropped to 143/88. She fell asleep at 1:00 p.m., but awoke an hour later, complaining of pain. She then received 75 mg of Demerol with 6.25 mg of Phenergan, which controls nausea. At 2:30 p.m., S. B. complained again of pain. Her blood pressure had risen to 189/78, so she received another clonidine 0.1 mg. Fifteen minutes later, a nurse emptied S. B.'s Foley catheter of 1400 cc of clear urine. S. B.'s blood pressure was 170/100, and the nurse notified Respondent of this reading. The nurse gave S. B. 10 mg of Procardia, which reduces high blood pressure. At 3:00 p.m., S. B. received 2.5 mg of labetalol and 2.5 mg of Versed. Fifteen minutes later, S. B. was transferred by stretcher to the overnight room with a blood pressure of 141/60, pulse of 96, and respiration of 16. By 3:45 p.m., S. B.'s blood pressure was 125/59, and she was asleep. Thirty minutes later, S. B. was watching television, and her blood pressure was 141/78. After complaining of pain, S. B. received 100 mg of Demerol with 12.5 mg of Phenergan at 4:50 p.m. At 5:10 p.m., S. B.'s blood pressure rose to 163/94, and her pulse was 108. She received another 10 mg of Procardia at this time. At 6:00 p.m., S. B.'s blood pressure was down to 142/88. Two hours later, after she complained of insomnia, S. B. received 30 mg of Restoril. At 9:15 p.m., S. B. complained of abdominal pain. She received 100 mg of Demerol and 25 mg of Phenergan. At 11:30 p.m., S. B. received 30 mg of Restoril for insomnia and 10 mg of Lorcet for pain. At 1:20 a.m. on January 16, S. B. was sleepy. Two hours later, her blood pressure was 148/70. At 5:30 a.m., after an uneventful night, S. B. complained of abdominal pain and received another 10 mg of Lorcet. At 7:00 a.m., her intravenous line was discontinued. Alert and oriented, S. B. walked in the hall and received another clonidine 0.1 mg. A nurse emptied her Foley catheter of 400 cc of urine and removed the Foley catheter. At discharge at 8:00 a.m., Respondent examined the wound and found no evidence of bleeding, as he changed the dressing. At this time, S. B.'s blood pressure was 147/70 and pulse was 108. S. B. was transported by wheelchair to her daughter's car. S. B. and her daughter arrived at S. B.'s home at about 9:00 a.m. on January 16, 2004. After spending the morning with her mother, the daughter left the home and returned at 1:00 p.m. Having forgotten the house key, the daughter knocked on the door, and S. B. had to crawl to the door due to her lack of strength. The daughter assisted her mother to bed. Mid- afternoon, the daughter left her mother to run some errands. When the daughter returned home shortly before 6:00 p.m., she found her mother unresponsive and curled into a fetal position on the floor with blood present on the bed sheets and nightshirt that she was wearing. The daughter immediately called 911 and requested an ambulance. The emergency management technicians (EMTs) arrived at S. B.'s home at 6:23 p.m. and found her as her daughter had found her. S. B. was in full cardiac arrest. The EMTs found S. B. cold to the touch with fixed and dilated pupils. They found a "small amount" of blood oozing from the staples in the lower stomach. The two surgical drains in the upper stomach contained no discharge. Blood had soaked the bandage and run down both legs to thigh level. The EMTs estimated blood loss at about 500 cc. The EMTs also found the Restoril and Lorcet in the doses that Respondent had prescribed pre-operatively. The EMTs attempted unsuccessfully to resuscitate S. B. and transported her to the hospital where she was pronounced dead on arrival at 6:35 p.m. The medical examiner conducted an autopsy on January 17, 2004, at which time blood and urine samples were taken for toxicological analysis. The toxicology report notes that a gas chromatography/mass spectrometry procedure revealed the presence of 6-MAM, which is a metabolite of heroin and demonstrates conclusively that S. B. consumed heroin or, much less likely, 6-MAM; morphine, which is another indicator of heroin, at a concentration of 0.22mg/L; methadone at a concentration of less than 0.05 mg/L; meperidine, which is Demerol (a narcotic analgesic) at a near-toxic concentration of 0.98 mg/L; diazepam, which is Valium, at a concentration of less than 0.05 mg/L; nordiazepam, which is a metabolite of Valium, at a concentration of less than 0.05 mg/L; temazepam, which is, as noted above, Restoril or another metabolite of diazepam, at a concentration of 0.29 mg/L; and hydrocodone, which is one of the two ingredients, as noted above, of Lorcet, at a concentration of 0.05 mg/L. A drug's half-life is the amount of time for its potency to be reduced by half. Three to four half-lives are required for the complete elimination of a drug. Because various conditions can affect the half-lives of drugs, such as liver disease as to drugs eliminated substantially through metabolism by the liver, half-lives are stated as average ranges. Relevant half-lives are: Demerol--2-24 hours; diazepam--21-37 hours; hydrocodone--3.4-8.8 hours; and temazepam--3-13 hours. Diprivan and fentanyl have very short half-lives and were not detected by the toxicologist. The half- life of 6-MAM is also very short, about 6-25 minutes, leading the toxicologist who performed the report for the medical examiner to testify that S. B. had consumed heroin not more than two hours before her death. The same toxicologist testified that the detected concentration of Demerol was six times the therapeutic level. (This testimony is credited over the testimony of the Deputy Chief Medical Examiner that the concentration of 0.98 mg/L is only twice the therapeutic level.) Given a half-life of 2-24 hours, all that can be said with certainty is that S. B. suffered even greater concentrations of Demerol--possibly much greater--prior to the near-toxic concentration found by the toxicologist. Undoubtedly, the heroin and methadone that S. B. consumed were not prescribed by Respondent. Undoubtedly, S. B. had access to Demerol that Respondent had not administered. Respondent could not have reasonably have anticipated, based on the circumstances, that S. B. would consume heroin, methadone, and toxic or near-toxic amounts of Demerol, in addition to her prescribed medications, within 12 hours of her release from the Cosmetic Surgery Center. Just as an illegal drug user has the right to treatment in accordance with the applicable standard of care, so a physician has a right to expect behavior on the part of his patient that is at least consistent with the instinct of self-preservation. The autopsy determined that S. B. died of a combined drug overdose of heroin, temazepam, Valium, methadone, Demerol, and hydrocodone. Contributing causes of death were hypertension, abdominal wall hemorrhage, and cirrhosis. As to the hypertension, the autopsy report states that S. B. suffered from mild arteriosclerotic cardiovascular disease. As to the abdominal wall hemorrhage, the autopsy report states that S. B. was in status--post-tummy tuck and liposuction. As to the cirrhosis, the autopsy report states that S. B. suffered from severe fatty metamorphosis of the liver. The autopsy report concludes that the manner of death was an accident. Of the drugs that combined to kill S. B., Respondent clearly did not administer or prescribe the heroin or methadone. Although Respondent administered Demerol at the dosages of 75 mg at 2:00 p.m. 100 mg at 4:50 p.m., and 100 mg at 9:15 p.m., all on January 15, the near-toxic Demerol found in S. B. at the time of her death was not due to these doses, but due, at least in large part, to Demerol that S. B. obtained from other sources. The hydrocodone and temazepam were probably derived, at least in part, from the Lorcet and Restoril that Respondent prescribed for post-operative use. Unfortunately, the record does not reveal how many pills of each that the EMTs found at the S. B.'s home, so it is impossible even to infer how much of each medication that S. B. took while at home during the afternoon of January 16 immediately preceding her death. Not much hydrocodone was found in S. B., and the 10 mg of Lorcet given at 11:30 p.m. on January 15 and 10 mg of Lorcet given at 5:30 a.m. on January 16 would have been nearly eliminated by the time of S. B.'s death, given the short half-life of hydrocodone. Considerably more temazepam was found in S. B., but the 30 mg of Restoril given at 8:00 p.m. and 30 mg of Restoril given at 11:30 p.m. would have been nearly eliminated by the time of S. B.'s death, given the short half-life of temazepam. Clearly, in the two or three hours before she died, S. B. took heroin, methadone, and Demerol. Clearly, the fentanyl that she had last received at 10:10 a.m. on the prior day and the Diprivan that she had last received at 11:05 a.m. on the prior day had long cleared her system before she took the heroin, methadone, and Demerol. S. B. accidentally took her own life by taking these three drugs. The record does not suggest that hemorrhaging from the surgical site was due to some failure on Respondent's part. Instead, it appears more likely that falling from the bed or possibly convulsing from the drug overdose, S. B. may have reopened the incision site. The record does not suggest that cirrhosis materially extended the half-lives of any medications that Respondent administered. S. B. efficiently eliminated the Valium that Respondent administered. The record does not explain why she would not as efficiently eliminate other drugs metabolized primarily by the liver. The record does not suggest that Respondent's management of S. B.'s hypertension intra- and post-operatively had any bearing on her demise. Her blood pressure stabilized late in the afternoon of January 15, and nothing in the record suggests that anything that transpired on that day concerning S. B.'s hypertension caused an acute crisis that resulted in her death. As to Count I, Respondent did not depart from the applicable standard of care. S. B. never fell below Level II sedation; she was always responsive to pain and attempts to communicate. S. B. proved difficult to sedate even to Level II. On these facts, it is impossible to find even that it was reasonably likely, at the outset of the procedure, that S. B. would reach Level III sedation. Additionally, as to Count I, Respondent competently managed S. B.'s hypertension intra- and post-operatively. Based on the circumstances, Respondent correctly determined that the slight elevation of PT would not interfere with clotting or endanger the patient's safety and correctly determined that the other five slight abnormalities in the lab report were immaterial to patient safety in the contemplated surgical procedure. Respondent was thus not required to obtain additional tests or to obtain a consultation for the slight PT abnormality. Based on the physical examination and lab results, including those ordered by the primary care physician, insufficient evidence of liver abnormality existed to preclude the administration of the acetaminophen contained in Lorcet. Further, the standard of care does not preclude the prescription of acetaminophen to all patients with any kind of liver disease. As to Count II, Respondent's medical records fail to document adequately why he proceeded to operate despite S. B.'s failure, pre-operatively, to reach a blood pressure of less than 150/90, why he administered vitamin K pre-operatively, and, most importantly, how he had assimilated the PT abnormality in his treatment plan for S. B. As noted above, at hearing, Respondent amply supplied all of this information--the problem is that he never bothered to do so in the medical records. Although these deficiencies in medical records did not contribute in any way to S. B.'s death, they are material failures to justify the course of treatment. In contrast to the detailed records of Nurse Huff intra-operatively and the post-operative records prepared by nurses, Respondent's notes, and thus the records themselves, do not approach the minimum level of detail necessary to justify the course of treatment in this case. As to Count III, Respondent did not administer or cause to be administered excessive or inappropriate quantities of Diprivan. As to Count IV, Respondent did not improperly delegate professional duties, with respect to the administration of Diprivan, to a registered nurse who was not a CRNA. At all times, Respondent adequately supervised and monitored the administration of this short-acting sedative. The record does not support Respondent's claim of prejudice resulting from any delay in the prosecution of this case. Any claim of prejudice due to delay is undermined by Respondent's failure to demand an immediate hearing due to the imposition of an emergency restriction on his license.
Recommendation It is RECOMMENDED that the Board of Medicine enter a Final Order dismissing Counts I, III, and IV of the Administrative Complaint, finding Respondent guilty of a single violation of Section 458.331(1)(m), Florida Statutes, suspending his license for 30 days, placing his license on probation for two years, requiring him to complete successfully continuing medical education on medical records, and imposing an administrative fine of $10,000. DONE AND ENTERED this 25th day of August, 2006, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2006. COPIES FURNISHED: Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin AO2 Tallahassee, Florida 32399-1701 John E. Terrel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Lewis W. Harper Brew and Harper, PL 6817 Southpoint Parkway, Suite 1804 Jacksonville, Florida 32216 George Kellen Brew Brew and Harper, P.L. 6817 Southpoint Parkway, Suite 1804 Jacksonville, Florida 32216 Patricia Nelson Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399
The Issue Whether Respondent's license as a physician should be disciplined for the alleged violation of Section 458.331(1)(t), Florida Statutes, in 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, by failing to treat the patient's preoperative coagulopathy and/or failing to use an alternate vein that would have allowed visualization of the shunt placement into the vein thereby reducing the risk of causing a hemorrhage given the patient's preoperative history, and, if so, what penalty should be imposed. AS TO CASE NO. 01-4407PL Whether Respondent's license as a physician should be disciplined for the alleged violation of Section 458.331(1)(t), Florida Statutes, 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 by failing to distally clamp part of the arteries prior to manipulation of the aneurysm and by failing to ensure periodic monitoring of the patient's condition postoperatively for evidence of ischemia or other problems and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: FACTS COMMON TO BOTH CASES Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.42, Florida Statutes, Chapters 456 and 458, Florida Statutes. At all times relevant to this proceeding, Respondent was a licensed physician in the State of Florida, having been issued license number ME 0036360. Respondent is board-certified in thoracic and general surgery. FACTS RELATED TO CASE NO. 01-4406PL Patient D.J.P. was a 54-year-old female with a history of liver resection for carcinoma. Patient D.J.P. had contracted Hepatitis C in the 1960s from a blood transfusion, after being the victim of a gun shot wound during a robbery at a convenience store. Patient D.J.P. subsequently had developed cirrhosis secondary to the Hepatitis C. Cirrhosis is a scarring process of the liver that results in the displacement of the normally functioning liver tissue. A healthy liver processes lymphatic fluid back into the bloodstream. However, a cirrhotic liver cannot properly process the lymphatic fluid back into the bloodstream. Therefore, lymphatic fluid backs up within the liver and weeps out the covering over the liver and into the abdominal cavity. Patient D.J.P. presented to Respondent on February 1, 1994, after being referred to Respondent by Michael Carey, M.D., the primary care physician, for evaluation for implanting a peritoneal venous shunt. A venous shunt is a conduit designed to take ascitic fluid from the abdomen and put it back in the vascular system. The shunt removes the fluid from the abdominal cavity and transports it to the vascular system where it can be absorbed. The procedure is for the patient's comfort and does not prolong the patient's life. The procedure is for patients with end stage liver disease. After obtaining a medical history and conducting a physical examination, Respondent's assessment of the Patient D.J.P. was massive ascites secondary to cirrhosis and previous liver resection. Respondent believed that Patient D.J.P. was a candidate for a venous shunt procedure due to the fact that she was very symptomatic from her massive ascites and she was on the maximum medical therapy. The mortality rate for this type of procedure is between 5 and 25 percent or at the very least, one-in-twenty patients would die from this procedure. Complications associated with this type of procedure include disseminated intravascular coagulopathy (hereinafter referred to as "DIC") which may lead to the general worsening of the disease or death. The patient was informed of this mortality rate as well as of the complications associated with this procedure. Patient D.J.P. decided to think about the procedure and contact Respondent's office when she wanted the shunt inserted. On February 10, 1994, Patient D.J.P. called Respondent's office and asked to have the shunt inserted as soon as possible. Respondent scheduled the procedure for February 14, 1994, and signed the written surgical consent form. Prior to the surgery, lab tests were performed on Patient D.J.P. The lab report indicated that the patient's prothrombin time was 14.3, with a normal range being 10.7-12.8. Prothrombin time ("PT") is a measurement of one aspect of the blood clotting mechanism. This was considered slightly abnormal and not an indication of a clotting problem or coagulopathy. Respondent decided it was not necessary to address Patient D.J.P.'s abnormal PT prior to the procedure by preoperatively administering Vitamin K or fresh frozen plasma. On February 14, 1994, Patient D.J.P. was transported to the operating room at approximately 12:10 p.m. After Patient D.J.P. was placed under general anesthesia, Respondent began the venous shunt operation at approximately 12:34 p.m. Respondent attempted to access the right jugular vein to insert the shunt. He found this vein to be unusable because it was too scarred from previous surgeries. Respondent then proceeded to access the right subclavian area to insert the shunt. Once the shunt was inserted into the subclavian area, Respondent positioned it in the superior vena cava. The shunt was noted to be in position in the superior vena cava. Respondent then removed eight liters of ascitic fluid from the abdominal cavity. After removing the ascitic fluid, he then put one liter of saline into the abdominal cavity to dilute any remaining ascitic fluid which allowed any remaining fluid to be more easily absorbed into the vascular system. The Patient's central venous pressure dropped from 8 to 2. Hespan and Albumin were then administered to replace any lost volume and it helped to increase the colloidomotic pressure. At this point, Patient D.J.P.'s central venous pressure (CVP) increased from 2 to 14 or 15. This is a faster than normal rate. Upon finding that the shunt was operating well, Respondent closed the abdominal portion and the patient was extubated. Petitioner claimed that fluoroscopy was not used to ensure that the shunt was positioned in the proper place. A Fluoroscope is like a real-time X-ray. A fluoroscope has two parts to it: a C-arm, which goes above the patient and underneath the bed, and two screens where the doctor can see what is going on. The C-arm is approximately 5-and-a-half feet tall. It is below the standard of care to do a venous shunt procedure without using a fluoroscope. It would enable Respondent to visualize the placement of the shunt. Felicia Whitmer, a scrub technician, and Rene Myers, a circulating nurse, prepared the operating room for Patient D.J.P.'s procedure on February 14, 1994. Both Felicia Whitmer and Rene Myers testified that there was no fluoroscope in the operating room on February 14, 1994. Respondent testified that there was a fluoroscope in the operating room on February 14, 1994, during Patient D.J.P.'s procedure and that he used it to assist him. The evidence is not clear and convincing that the fluoroscope was not used during the course of the operation. It is considered within the accepted standard of care to access the right subclavian vein to insert a shunt of this type because this vein follows a gentle curve or path. With this gentle curve in the vein, there is less risk of damage, i.e. puncture, to the vein. In contrast, the left jugular vein follows a more sharp-angled 70-degree bend-curve in the vein where one risks the danger of the shunt coming out of the bottom of the vein or perforation and, thereby, damaging the vein. Respondent ordered an X-ray to confirm placement of the shunt and catheter. The X-ray revealed that the shunt had good positioning but the right lung was filled with fluid. The patient was re-intubated and Respondent inserted a chest tube into the patient which would expand the patient's lung, oxygenate the patient and allow for fluid removal. Three or four liters of fluid were removed. The fluid was originally serous and pink tinged and shortly thereafter, turned bloody. Respondent noted that there was bruising around the wounds. Additionally, the patient's breathing became shallow and her blood pressure began to deteriorate. Resuscitative efforts were performed and Respondent re- entered the shunt area to clamp the shunt to prevent any ascites from flowing into the venous system and to prevent further coagulation and massive bleeding. Despite heroic resuscitative efforts, the patient's condition continued to deteriorate and the patient died. The cause of death was determined to be DIC and severe coagulopathy from drainage of the ascitic fluid into the venous system. Respondent made the determination that the patient did not have preoperative coagulopathy. Respondent testified that if the patient did have preoperative coagulopathy, he would not have performed the procedure because the patient would not be able to make the clotting factors well enough for problems that would occur after the shunt was inserted. It was Respondent's opinion that the patient did not have a serious clotting problem. Based on her lab report, Patient D.J.P. had a slightly abnormal PT and this was not an indication of a clotting problem. Respondent reviewed the lab reports and determined the PT (the measurement of one aspect of blood clotting mechanism), to be only slightly elevated. It measured 14.3 with a normal range being 10.7-12.8. Moreover, the PT International Normalized Ratio (INR) (which is the standardized measurement of PT) was 1.63 where the therapeutic range was 2-3. Therefore, this was slightly below average. Dr. Yahr testified that an abnormal clotting problem is a clinically evident problem and not an incident of a lab number. If Patient D.J.P. had a clotting abnormality, adverse conditions or symptoms would have been evident with the incisions that were made prior to the shunt being opened. Rather, normal clotting reactions occurred. Coagulation occurred right after the shunt was opened and the ascitic fluid began to flow into the atrium. Dr. Yahr testified that the etiology of the coagulation was the body's reaction to the ascitic fluid after the shunt was opened. Accordingly, it was Dr. Yahr's opinion that Respondent did not fail to treat the preoperative coagulopathy because upon his examination of the patient, he determined that no such preoperative coagulopathy existed prior to the procedure. Dr. Yahr testified that the patient did not have abnormal bleeding. Her liver failure was the result of scarring and abnormal liver function. Therefore, administration of clotting factors such as Vitamin K and fresh frozen plasma was not indicated or medically necessary. Petitioner presented the expert testimony of John W. Kilkenny, III, M.D. Dr. Kilkenny is board-certified in general surgery and has been for 11 years and is currently a professor with the University of Florida College of Medicine, Department of Surgery in Jacksonville, Florida, a position which he has held for the last six years. According to Dr. Kilkenny, Patient D.J.P.'s elevated PT was a cause for concern in that it was an indication that the patient's ability to clot or coagulate was diminished. It is not clear and convincing that the standard of care required that the elevated PT be treated by infusing fresh frozen plasma or Vitamin K. Respondent did not violate Section 458.331(1)(t), Florida Statutes, by failing to use an alternate vein that would allow visualization of the placement of the shunt. Respondent first attempted to access the right jugular vein to insert the shunt but found it be unusable because it was too scarred. Respondent, acting as a reasonably prudent physician and using sound medical judgment, accessed the right subclavian area to insert the shunt. After the shunt was inserted into he subclavian vein, Respondent claimed he was able to visualize the placement of the shunt by the use of fluoroscopy. Furthermore, the operative notes seemed to indicated that the procedure was performed under fluoroscopic control and the shunt was found to be in position. Therefore, Respondent accessed an appropriate alterative vein-the subclavian vein, which allowed visualization, with the assistance of fluoroscopy, of the placement of the shunt. As to the second issue, Dr. Kilkenny opined that the standard of care requires direct visualization for insertion of the shunt. By not accessing a vein under direct visualization, such as with Respondent's subclavian approach, the surgeon is, in essence, hunting for the vein, and risking damage to the wall of the vein that may not be evident immediately. The rapid rise in CVP from 2 to 14 or 15 was also a concern for Dr. Kilkenny because it was not normal, and did not mean that the shunt was placed correctly of that the shunt was functioning properly. Dr. Kilkenny noted that it was unlikely that the bleeding in the chest cavity was caused by damage to an intercostals vessel when the chest tube was inserted because the chest X-ray that was taken prior to insertion of the chest tube showed a complete opacification of the right side and a shifting of the major vessels within the middle of the chest over to the left side. According to Dr. Kilkenny, the chest X-ray indicated that there had already been some sort of bleeding in the right chest prior to the insertion of the chest tube. Dr. Kilkenny disputed Respondent's theory that Patient D.J.P. died as a result of DIC. Dr. Kilkenny asserted that Respondent fell below the standard lf care in that, given Patient D.J.P.'s rapid decompensation, he failed to consider whether the patient's subclavian vein had been damaged, a condition which could have been addressed surgically. Dr. Yahr opined that Patient D.J.P. died of DIC that occurred within a short period of time after Respondent opened up the shunt and ascitic fluid was introduced into the atrium of the heart. Although Dr. Yahr further admitted that the bleeding in the chest could have occurred as a result of damage to the subclavian vein, and that it was below the standard of care to access the subclavian vein without using fluoroscopy, the evidence is not clear and convincing that either event occurred. It is found that Petitioner has failed to establish by clear and convincing evidence that the standard of care required Respondent to use an access site that allowed direct visualization of the placement of the shunt into the vein, or that Respondent failed to use fluoroscopy in order to directly visualize insertion of the shunt into the subclavian vein. AS TO CASE NO. 01-4407PL On August 22, 1997, Patient H.H., a 55-year-old female, was diagnosed with an abdominal aortic aneurysm measuring approximately 4.5 cm transverse diameter and beginning approximately 1-2 cm below an enlargement or swelling, of a blood vessel resulting in a weakening or thinning out of the vessel wall. On November 28, 1997, Patient H.H.'s aneurysm had grown to 5 cm within a three-month period and was occluded with partial thrombosis with a true lumen around 2.7 cm and extended down to the bifurcation of the abdominal iliac. This put the patient at risk for rupture of the aneurysm. Thrombosis is a blood clot within a vessel or within the vascular system. It does not embolize (travel) from another part of the body. It starts in a particular vessel and causes its damage from there. It is an acute clot that occurs in the vessel secondary to stasis (non-moving ) or some kind of coagulation or clotting deficiency or abnormality. Thrombotic activity most often begins by occluding the smaller vessels in the vascular system, such as those smaller veins located in the feet. On December 2, 1997, Patient H.H. first met with Respondent, who performed a complete medical history and physical examination and confirmed the presence of a 5 cm abdominal aneurysm. Patient H.H. was a 55-year-old female who smoked 1- and-a-half packs of cigarettes per day, had a blood pressure of 182/104 despite the fact that she was taking 50 mg Atenolol for hypertension (high blood pressure), and had a 30 percent blockage of the coronary artery. Previously, she had a cardiac catheterization, followed by an angioplasty of the femoral vessel in her left leg. Patient H.H. advised Respondent that her legs gave out on her after she walked two blocks, but that she did not have associated chest pain. Respondent confirmed earlier diagnosis of Patient H.H.'s medical condition as single vessel coronary artery disease, abdominal aortic aneurysm, hypertension, and claudication with femoral occlusive disease. Respondent also found diminished femoral pulses and palpable Dorsal pedal pulses present in both feet. Patient H.H.'s medical records indicated that this smoker of 30 years suffered from diabetes, peripheral vascular disease, intermittent clottication of the leg, hypertension, atherosclerotic disease, hypercoagulopathy, anthithrombin III deficiency, high cholesterol, and diminished protein and pH levels. Respondent prescribed prescription medication, Procardia to lower Patient H.H.'s blood pressure and Zyban to help her stop smoking. He recommended that the patient return in a week for follow-up. On December 15, 1997, Respondent continued to prepare Patient H.H for surgery. He again advised her to stop smoking and to purchase and take medication to help her stop smoking. Patient H.H.'s blood pressure was lower, 144/84, and although she had not purchased or taken the medication, she reduced her smoking down to one-half pack of cigarettes per day. Respondent then advised Patient H.H. to make plans to undergo the abdominal aortic aneurysm ("AAA") repair. Patient H.H. informed Respondent that she wanted to wait a little longer while she made financial arrangements to pay for the surgery. Respondent advised Patient H.H. to completely quit smoking before the surgery and advised her to return in one month for additional preoperative evaluation. On January 12, 1998, Respondent continued to prepare Patient H.H. for surgery by ordering a cardiac clearance (thallium evaluation) of the patient's heart to ensure she could tolerate the surgery before attempting the AAA repair. On February 3, 1998, Patient H.H. presented for the thallium evaluation of the heart and, on February 9, 1998, obtained cardiac clearance for repair of the AAA. On February 11, 1998, Respondent continued to prepare Patient H.H. for AAA surgery and suggested she donate two units of blood which would be used during the surgical procedure. Respondent scheduled AAA repair surgery for March 6, 1998. Respondent advised Patient H.H. of the risks associated with AAA surgery and specifically mentioned the risk of a heart attack, bleeding, kidney damage and loss of legs. He also advised that the risks associated with intra-operative AAA repair include spontaneous rupture, embolization of material from the wall distally, myocardial infarction, bleeding, injury to viscera of the small vessels, devascularization of the colon causing ischemic colitis, death, kidney blockage. Patient H.H. indicated she understood the risks and despite the risks associated with this type of surgical procedure, including the risk of death, she agreed to the procedure. Preoperative testing by angiogram was not required for Patient H.H. The aneurysm was a massive aneurysm presenting a very serious health risk of imminent rupture. The size of Patient H.H.'s aneurysm (5 cm) made AAA repair an emergency in a sense because there was almost a 100 percent chance of rupture with in the next six months. Any findings determined by angiogram would not have changed the outcome of the case because Respondent had to definitively treat the aneurysm first. Additionally, an angiogram is a very expensive test and Patient H.H. expressed a concern about her financial situation with respect to the AAA repair. It is reasonable to not do studies that a physician does not feel are absolutely necessary. The patient's financial concerns are part of the pathology. On March 6, 1998, Patient H.H. was admitted to Winter Haven Hospital and filled out and signed the Special Authorization for Medical and/or Surgical Treatment form indicating her consent to the surgical procedure which Respondent was to perform. She indicated that she understood the risks associated with such surgical procedure. Paragraph two of the informed consent form states in pertinent part: I hereby certify that I have given complete and informed consent for the above named operation and/or procedures, and Dr. L. Thomas has explained to me the reason why the above-named operation and/or procedure are considered appropriate, its advantages and possible complication, if any, as well as possible alternative modes of treatment. I also certify that no guarantee or assurance has been made as to the results that may be obtained. The operative procedure on the consent form was signed by Patient H.H. at 6:10 a.m. on March 6, 1998. Surgery indicated on the consent form was for a resection abdominal aortic aneurysm (AAA repair). After Patient H.H. was taken to the operating room and administration of anesthesia began, Respondent performed his routine preoperative check of femoral and pedal pulses. Checking for femoral and pedal pulses is the type of preoperative work-up Respondent routinely performs while he waits for the anesthesia to take its effect on the patient. The operative report indicates that the abdominal aneurysm was "very large" extending quite high within 1-2 cm from the renal vein and down to and involving the common and hypogastric arteries and noted to be "quite saccular" with "impending rupture in the near future at the neck." The common iliacs were noted to be "quite large and aneurysmatic." The external iliacs were soft but extremely small, "approximately 4-5 mm in size, certainly less than half, more like 1/4 the size of a normal iliac" but nevertheless usable vessels to make his anastomosis. As Respondent was bluntly dissecting (separating the tissues using the fingers) the aortic aneurysm from the venous plexus to position his proximal clamp when one of the lumbar veins was encountered and mass bleeding occurred. The venous plexus is a grouping of veins located under the aorta that can best be described as a wagon wheel. The system has a hub and all the veins in the grouping extend outward from the hub. If one of the veins in the grouping is injured, it will bleed heavily, but the bleeding is controllable. The lumbar veins are part of the venous plexus and a tear of the lumbar vein is a known risk during this type of surgery. Patient H.H. suffered the loss of three times the amount of blood as would have been routinely expected. The sudden blood loss caused the patient's condition to rapidly deteriorate. Dr. Wickstrom-Hill, Anesthesiologist, testified that had Respondent not controlled the blood loss, and had not maintained Patient H.H.'s vital signs, she would have died. Using sound medical judgment, Respondent elected to bypass the aneurysmatic common iliacs and make his anastomosis of the graft to the external iliacs in order to not disconnect or separate the aortic or common iliac aneurysms from the iliac vein. This is a very fragile vessel and could have resulted in further massive bleeding and possible death of the patient. A reasonable prudent physician faced with a similar circumstance and situation would not attempt to mobilize the aneurysm further if doing so would cause additional massive blood loss and possible death of the patient. The hypogastric arteries (a/k/a the internal iliacs) serve to provide the pelvic viscera (bladder, rectum, etc.) with blood. During the AAA repair, Respondent performed an embolectomy on both legs following manipulation of the aneurysm. The purpose of this procedure was to remove any debris which may have dislodged from the aneurysm and flowed distally to the legs. The procedure involves running a Fogarty catheter down the femoral arteries as far as the catheter will go, then inflating a balloon located at the end of the catheter. Once the balloon is inflated, the surgeon will extract the catheter, pulling the debris out of the artery. This process is repeated as necessary to remove all debris. Fresh clot was obtained from both legs, indicating a lack of debris. Prior to completing the anastomosis of the bifurcated graft to the aorta and external iliacs respectively, Respondent ran a Fogarty catheter down proximal (back into the graft itself), to remove any debris in the graft itself. Finally, he back-bled the graft (allowed blood to flow out of the graft, to, again, ensure that there existed no debris in the graft). On March 7, 1998, Patient H.H.'s medical condition stabilized such that Respondent felt it safe to return Patient H.H. to the operating room to undergo an additional embolectomy of the legs and an endarterectomy of the right femoral artery. The record demonstrates that Respondent believed he collected embolic debris from the femoral arteries. However, based upon the pathology report and the testimony of Dr. Zeller, the debris removed from Patient H.H. during this procedure was acute blood clots and atherosclerotic plaque. This finding is consistent with thrombotic material and not a result of debris coming from another location as it tends to demonstrate that Patient H.H. had a clotting disorder consistent with her medical history. The record also demonstrates that upon completion of the procedure, Patient H.H. was noted to have excellent pulses in the superficial and profunda femoral arteries distal to the anastomosis with good emptying and filing of the vessels. Before, during, and after the AAA repair, Respondent used Heparin (an anti-clotting drug) in an effort to prevent the formation of clots throughout Patient H.H.'s vascular system. Intraoperatively, on March 3, 1998, Respondent administered 10,000 units of Heparin. Normally a patient will respond to 5,000 units. Despite giving Patient H.H. twice the normal amount of Heparin, Patient H.H. continued to have a lowered clotting time. It is noted in the medical record that Patient H.H. had an Antithrombin III deficiency. Antithrombin III is one of the factors that control how blood in the human body clots. Patient H.H.'s Antithrombin III deficiency is a hereditary defect that contributed significantly to her continued clotting despite the use of pharmacological intervention (substantial amount of Heparin). Respondent testified that in his medical training and experience, Patient H.H.'s Antithrombin III deficiency level was near fatal. Because Patient H.H. was hypercoagulative, thus causing the small vessels to clot off, on March 13, 1998, Patient H.H. underwent bilateral above the knee amputations. Hypercoagulopathy is a tendency to clot without anything being done - the blood just clots. This can be caused by a lower-than- normal blood pressure for a period of time and by having an Antithrombin III deficiency. Respondent observed during the surgery that this patient was hypercoagulative because he could see the blood clotting in the wound despite the fact that Patient H.H. was on twice the normal amount of Heparin. Respondent practiced within the standard of care at all times during the treatment of Patient H.H. Blood-flow going retrograde back into the common and iliac aneurismal sacs did not place Patient H.H. at a risk of rupture. The operative report clearly demonstrates that the aortic aneurysm involved the common iliacs and extended below the hypogastric arteries. The operative report also demonstrates that the external iliacs were extremely small, approximately one-quarter of the normal size. A reasonable and prudent surgeon, faced with a similarly situated patient with a massive sized aneurysm and the extremely small size of the distal external iliacs, would conclude that the pressure gradient now being carried to the graft rather than to the aneurysm would diminish flow to the aneurysms making the possibility of rupture unlikely. Moreover, the aneurysms were filled with calcified atherosclerotic plaque and other thrombotic (non-mobile) material. Dr. Begelman testified that calcified aneurysms do not tend to rupture as much. On direct examination, Dr. Begelman, Petitioner's expert, could not conclusively determine whether Respondent's surgical treatment of Patient H.H. fell below the standard of care and that distal clamping is an intra-operative decision to be made by the surgeon. Dr. Begelman who testified that he accepted Respondent's opinion that the iliacs were too large or too thin walled and could not distally clamp the aneurysm and that such decisions are those made by the surgeon on the case. Drs. Begelman and Seller and Respondent testified that it is usual and customary during this type of surgical procedure to distally clamp the aorta and that it is expected of a reasonable and prudent surgeon to make every attempt to do so. Nevertheless, all three doctors recognized that there are times when you cannot or should not distally clamp if to do so would cause further injury to the patient or death. Patient H.H. presented with very massive aneurysms of both the aorta and common iliacs making distal clamping impossible without sacrificing the hypogastric arteries thus placing Patient H.H. at risk for further injury or death. Petitioner's expert accepted Respondent's assessment of the condition of the iliacs and that Respondent did not want to dissect the iliacs off the iliac vein, which one needs to do in order to tie off distally. Dr. Begelman testified that he could not ascertain whether Respondent fell below the standard of care with respect to Respondent's treatment of Patient H.H. intraoperatively. Respondent acted within the standard of care and, therefore, did not violate Section 458.331(1)(t), Florida Statutes, when he did not clamp the distal arteries before manipulation of the aneurysm. Respondent did not violate Section 458.331(1)(t), Florida Statutes, by sewing the bifurcated graft to the external iliacs and making no attempt to disconnect the aneurysm from the common and internal (a/k/a hypogastric) iliacs. The common and internal iliac tissues were also diseased because of their involvement with the aneurysms coupled with the fact that the aneurysm and surrounding tissue was inflamed. Inflammation causes the tissues of the surrounding viscera to become sticky and by that, stick together making separation difficult and more prone to bleeding on manipulation. Normally, the surgeon must bluntly dissect (lift up) the distal end of the aorta in order to place the distal clamps on the aorta below the aneurysm. However, the inflammation present in Patient H.H.'s aorta made it impossible to mobilize (lift up) the distal aorta for clamping because the tissue was stuck to the iliac vein which could have caused Patient H.H. to suffer a lethal blood loss. Normally, blood loss associated with this type of surgery amounts to 500 ccs for the total surgery. Patient H.H. lost 1500 ccs during the manipulation of the aortic aneurysm to place the proximal clamp and a total of 2400 ccs during the entire surgery which represented a blood loss of nearly 25-40 percent respectively of her estimated total blood volume. Respondent used sound medical judgment by making no attempt to dissect the common iliac from the subordinate tissue because, in his training and experience, the separation of tissues would have caused further, possible lethal bleeding. Drs. Begelman and Zeller, experts for Petitioner and Respondent respectively, testified that a reasonably prudent surgeon would not clamp below the common iliacs if to do so would sacrifice the hypogastric arteries and thereby cause irreparable harm or death to the patient. Dr. Zeller testified that the hypogastric arteries are of such importance that not clamping them, even at the risk of embolization, would nevertheless be within the standard of care. Respondent closely monitored Patient H.H. postoperatively. A reasonable and prudent surgeon is not expected to remain in the recovery room with his post-surgical patient until the patient becomes stable. Rather, the reasonable and prudent surgeon is expected to utilize the nursing staff who are charged with attending to the patient and to keep the physician updated on the patient's medical condition. Petitioner's witness, Doris Gutierrez, was the recovery room nurse on duty on March 6, 1998. Her duties included monitoring and reporting changes in Patient H.H.'s condition to Respondent. The record demonstrates that Respondent closely monitored Patient H.H. postoperatively by being in contact with the nursing staff and thereby giving orders for care and treatment to the nursing staff, either by telephone orders ("TO") or in person by verbal orders ("VO") to stabilize the patient. While in the recovery room, Patient H.H. was intubated, on a respirator. Petitioner's witnesses, Doris Gutierrez, confirmed Respondent's monitoring of Patient H.H. when she testified that she called Respondent several times to provide updates on Patient H.H.'s condition. The record demonstrates that postoperatively on March 6, 1998, Respondent wrote his initial order to the nursing staff at 12:30 p.m. while sitting in post-surgical recovery with Patient H.H. Thereafter, Respondent continued to monitor Patient H.H.'s condition and remained in communication with the nursing staff and wrote orders at 1:30 p.m., 2:30 p.m., 3:25 p.m., 5:00 p.m., 5:15 p.m., 8:15 p.m., and again on March 7, 1998 at 12:24 a.m. Following his TO on March 7, 1998, at 12:24 a.m., Respondent next saw Patient H.H. 7 1/2 hours later, at 8:00 a.m., prior to taking Patient H.H. to the surgery room to perform the endarterectomy and embolectomy. Ms. Gutierrez testified that she does not always note when the doctor comes back into the recovery room to give orders. She could not testify as to events that took place after Patient H.H. was transferred to the Surgical Intensive Care Unit ("SICU"). She also stated she did not know how many times Respondent went to SICU because she did not work in SICU when Patient H.H. was transferred out of the recovery room. Ms. Gutierrez was also unable to testify as to when the last time was that Respondent came to the recovery room. Respondent testified that there is a difference between a TO and a VO, the latter indicating that the physician was present in the room at the time he gave his order to the nurse. The evidence is not clear and convincing that Respondent did not provide appropriate postoperative monitoring of Patient H.H.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine: Enter a final order dismissing with prejudice the Administrative Complaint filed against Respondent in DOAH Case No. 01-4406PL, and DOH Case No. 1994-12341. Enter a final order dismissing with prejudice the Administrative Complaint filed against Respondent in DOAH Case No. 01-4407PL, and DOH Case No. 1999-57795. DONE AND ENTERED this 8th day of August, 2002, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 2002. COPIES FURNISHED: William R. Huseman, Esquire Romualdo C. Marquinez, Esquire Huseman, Marquinez & Schlegal, P.A. 6320 St. Augustine Road, Building 12 Jacksonville, Florida 32217 Kim Kluck, Esquire Richard J. Shoop, Esquire Agency for Health Care Administration Post Office Box 14229, Mail Stop 39A Tallahassee, Florida 32317-4229 Dr. John O. Agwunobi, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
The Issue The issue for determination in this proceeding is whether the Respondent, the Department of Professional Regulation, should pay the Petitioner, Kirk A. Woodson, M.D., attorney fees and costs under Section 57.011, Fla. Stat. (1989), the Florida Equal Access to Justice Act. As reflected in the Preliminary Statement, the parties stipulate that the Petitioner is a "prevailing small business party" and that reasonable fees and costs exceed $15,000, the statutory cap. The only remaining issue under the statute is whether the Respondent was "substantially justified" in filing the Administrative Complaint in Case No. 90- 5986 against the Petitioner. 1/
Findings Of Fact On or about June 7, 1988, a complaint was filed against the license of the Petitioner, Kirk A. Woodson, M.D., subsequent to closure of a professional malpractice liability claim against him without payment of indemnity. The substance of the complaint was that, on January 1, 1986, Woodson saw and performed a hysterectomy on a patient who had presented at the emergency room at University Community Hospital in Tampa, Florida, with heavy and continuous vaginal bleeding. The complaint stated that post-surgery the patient developed Adult Respiratory Distress Syndrome (ARDS) and died. The complaint questioned whether Woodson failed to practice medicine with that level of care, skill and treatment which a reasonably prudent similar physician recognizes as being acceptable under similar conditions and circumstances. By letter dated June 30, 1988, the Department of Professional Regulation (the Department or DPR) notified Woodson that it had received the complaint and that it was initiating an investigation. DPR subpoenaed the hospital records which revealed that the patient arrived at the UCH emergency room at 5:28 a.m. on January 1, 1986, with at least a three-day history of vaginal hemorraging. An emergency room physician saw the patient, gave her two units of packed blood cells, and admitted her to Woodson's service. Woodson was called at approximately 8:30 a.m. and saw the patient later that morning. The patient's admission to surgery to determine the cause of the bleeding and perform necessary procedures was delayed until at least approximately 2:00 p.m. because the patient refused to consent to a dilation and curettage (D and C); she was insisting on a hysterectomy only. She finally consented to a D and C to be followed by a hysterectomy if Woodson found it to be medically necessary. During this delay, the patient continued to bleed and was transfused with two more units of packed blood cells at approximately 1:45 p.m. After the consent was given, there was a further delay, not explained by the records, until approximately 6:00 p.m. in getting the patient to surgery. The patient continued to bleed. Surgery took almost five hours. During surgery, the patient's bleeding got worse, and she was transfused with four more units of whole blood during the surgery. The DPR investigator was unable to ascertain from the hospital records the reason for the length of the surgery. The DPR investigator attempted to arrange an interview with Dr. Woodson and his attorney on or about February 28, 1989. The appointment was cancelled. When the DPR investigator contacted Woodson to reschedule the interview, Dr. Woodson questioned why DPR was pursuing the complaint when the malpractice claim was closed without payment of indemnity. Dr. Woodson agreed to be interviewed but expressed his preference that the investigator first review the "extensive depositions" taken in the malpractice litigation. 4/ Having already determined to request an expert evaluation of the case, the investigator decided to postpone the interview with Dr. Woodson. On July 10, 1989, the DPR asked a probable cause panel of the Board of Medicine to authorize the retention of an expert in gynecology to review the information obtained through investigation to that point in time to assist in the determination whether Woodson's treatment of the patient fell below that level of care, skill and treatment which a reasonably prudent similar physician recognizes as being acceptable under similar conditions and circumstances. On July 22, 1989, the probable cause met and authorized the expert review. On or about November 2, 1989, the DPR requested an expert review by Doris N. Carson, M.D., a Board-certified gynecologist with extensive surgical experience, including emergency room experience. Dr. Carson reviewed the hospital records supplied by DPR, some of which were difficult to read. By letter dated November 20, 1989, Dr. Carson reported her impressions. Dr. Carson believed the records supported Dr. Woodson's diagnosis and ultimate course of treatment. In the patient's condition, the proper course of treatment was to attempt to stop the vaginal bleeding by doing a D and C; a hysterectomy only should have been attempted if the D and C did not stop the bleeding. However, Dr. Carson perceived other problems that were not explained to her satisfaction by the hospital records. First, Dr. Carson did not see anything in the records to justify the length of the surgical procedures performed by Dr. Woodson. She reported: Careful review indicated that the subject attempted to remove the fibroids vaginally, and when this only increased the bleeding, then decided to do a laparotomy. The uterus, although enlarged, was not huge and the procedure as described seemed to move along without difficulty. When, however, the time is reviewed five hours would indicate very serious problems of technique or what seems more likely a lot if indecision about how to proceed. Evidently there was no physician surgical assistant, and the subject proceeded alone. In retrospect better operationg room help should have been available. Second, Dr. Carson felt that the patient received too much whole blood replacement during the course of the day and the surgery. Her reading of the hospital records indicated to her that five units of whole blood were given to the patient in addition to four units of packed cells. She felt: "Packed cells altogether would have been a better choice in light of the volume given to the patient." Her concern was that "volume overload," rather than ARDS, may have resulted ultimately in the death of the patient. However, she disclaimed the necessary expertise to render a conclusive opinion on the question and recommended that, if the DPR wanted a conclusive opinion on the cause of death, it should have a specialist in intensive care or a respiratory expert review the records. Dr. Carson had some difficulty with the delay in getting the patient to the operating room. The records indicated that at least some of the delay was caused by the patient's unwillingness to give consent to the recommended D and C. But Dr. Carson nonetheless had concerns that the delay added to the amount of blood transfused. Dr. Carson closed her letter with this remark: "In conclusion: A poorly done sugical proceeding below the recognized normal level of care." For reasons not apparent from the evidence presented, DPR did not interview Dr. Woodson before asking the probable cause panel to find probable cause and file a draft Administrative Complaint against Dr. Woodson based on Dr. Carson's expert review and the rest of the investigative report, including the hospital records. The draft Administrative Complaint, drawn in two counts, sought to discipline Dr. Woodson under Count I for failure to practice medicine with that level of care, skill and treatment which a reasonably prudent similar physician recognizes as being acceptable under similar conditions and circumstances, in two respects: first, for allegedly causing volume overload in the patient by ordering units of whole blood, instead of packed blood, to replace the patient's blood loss; and, second, for allegedly taking too long, without justification, to perform the necessary surgery. Count II alleged that Woodson failed to keep written medical records justifying the course of treatment of the patient, specifically with respect to ordering whole blood instead of packed units and with respect to the length of the surgical procedures. The probable cause panel considered the matter at its meeting on June 22, 1990. Counsel for the panel pointed out that the "extensive depositions" Woodson had indicated he wanted the DPR investigator to read before Woodson was interviewed were not in the packet of materials reviewed by the panel. 5/ But members of the panel indicated that they had reviewed the material that was in the packet and that they thought the information contained in it was adequate to make a probable cause determination. One of the doctors on the panel called it a "horrendous case." She felt that Woodson had "swamped out the patient" and had performed "inappropriate types of fluid therapy and blood therapy." The other member mentioned the "five-hour operating time . . . without any real explanation." The panel's attorney pointed out the part of the report of investigation that referenced the patient's refusal to consent to Dr. Woodson's proposed surgery and asked whether it constituted "any semblance of an explanation for a delay?" It is not clear from the transcript of the probable cause proceeding how the panel resolved the attorney's question, but the panel voted to find probable cause notwithstanding the question. 6/ There is information in the materials reviewed by Dr. Carson, and by the probable cause panel, which tends to explain some of the time it took for Dr. Woodson to perform surgery on the patient. Some of this partially exculpatory information was difficult to read and decipher in the records. Some of the partially exculpatory information was acknowledged by Dr. Carson and may also have been taken into account independently by the panel. Notwithstanding this partially exculpatory information in the record, the finding of probable cause was substantially justified.
Findings Of Fact Respondent is and has been at all times material hereto a licensed physician in the state of Florida, having been issued license number ME 0019670. Respondent is a board-certified obstetrician and gynecologist. On March 20, 1989, at approximately 1:04 a.m., Patient #1 (Derrick Prince) was presented to the emergency room at Weems Memorial Hospital in Apalachicola, Florida. Prince was a twenty-year-old male suffering from a stab wound to his left thigh that was inflicted by a butcher knife. Prince was actively bleeding and had lost a large amount of blood, as evidenced by the condition of his clothing, the amount of blood on the walls and floor of the hospital, and blood on his companions. Prince was placed on a table in the trauma room. When his blood-soaked pants were removed, blood spurted from the wound on his left thigh to a height of one to two and one-half inches. The emergency room R.N., Ms. Page, controlled the bleeding by direct pressure, first with her hand and then with a towel. Prince was semiconscious, muttering, "I can't breathe," and was randomly combative. Emergency room personnel had to forcibly restrain him on the table. Respondent, working as the emergency room physician, was summoned to the trauma room by the nurse. Hospital personnel attempted to establish Prince's blood pressure and pulse. Ms. Simpson, the L.P.N., could detect no blood pressure or pulse on Prince. Ms. Page, the R.N., could detect no blood pressure or pulse although she checked radial, cubital, and popliteal areas. Mrs. Estes, a paramedic who came in to help, could detect no pulse. Respondent was advised repeatedly that no blood pressure or pulse could be detected. Respondent instructed Ms. Simon to call respiratory and laboratory personnel and the Sheriff's Department, which she did. The laboratory director, Tracy Pierce, was called at his home in St. Joe Beach. When pressure was removed from the wound area, there was little blood on the towel and the wound was not bleeding. Respondent commented to the nurse that she did a good job stopping the bleeding. The nurse and paramedics attempted to begin intravenous infusion but were unable to establish any IV lines because all veins were concave (collapsed). The nurse and paramedic interpreted this peripheral vascular collapse as meaning there was no blood volume to keep the veins open. Respondent was advised that no IV could be started because the veins were concave. Respondent had ordered a suture tray. He explored the wound with his finger and commented that the wound went all the way to the bone. Respondent commented that the boy would be all right, that he wasn't hurt that bad. Respondent proceeded to treat Prince by suturing the wound in three layers. He stated he tied off some minor arterial branches during this suturing. After suturing the wound, Respondent again commented that the boy would be all right because he wasn't hurt that bad. After suturing the wound and noting no jugular access, Respondent began a cutdown in order to establish an intravenous line. Ms. Estes, the paramedic, suggested using MAST trousers to help venous pressure, and Respondent agreed. MAST trousers also can act as a tourniquet to control bleeding. The pants were applied and Prince's legs were elevated in an effort to establish a positive venous pressure. At 1:30 a.m., while Respondent was setting up for a cutdown, Prince had a seizure and respiratory arrest. He was intubated by Respondent. He vomited, was suctioned, and breathed by AMBU bag. Respondent then inquired, for the first time, about the availability of blood. He was told there was none in the hospital. Sufficient blood was available and could have been obtained from Gulf Pines South Hospital in St. Joe within 30 minutes had a request been made for Mr. Pierce to bring it with him. Mr. Pierce arrived during the cutdown procedure. Mr. Pierce was the laboratory director for both hospitals. An intravenous fluid line was finally established via the cutdown and some fluid begun. The Life-Flight helicopter was ordered at approximately 1:40 a.m. At approximately 1:55 a.m. Prince suffered a cardiac arrest. When Life-Flight arrived at 2:40 a.m., it was impossible to transport Prince in his moribund condition. Resuscitative efforts were employed until approximately 3:00 a.m., when Respondent pronounced Prince dead. An autopsy conducted by Dr. Thomas Wood, the Medical Examiner, on March 21, 1989, revealed that the stab wound to the left thigh was located six inches above the knee, was seven inches deep, passed by the bone, and completely severed both the femoral artery and vein. The autopsy also revealed 3 layers of sutures: the first closing the skin and two other layers within the subcutaneous fatty tissue, not more than three-fourths of an inch below the surface. There was no evidence of any arterial or venous repair. The cause of death of Derrick Prince was exsanguination from the severed femoral vessels. After an investigation was initiated, Respondent was interviewed by Investigator Reese. Respondent stated that peripheral pulses were obtained and the patient's pulse rate was 120 from admission until the time of his respiratory arrest. Respondent stated to Investigator Reese that two IVs were started but that the patient pulled them out. Statements of Ms. Page and Ms. Estes written immediately after the incident indicate that no IVs were started, not because the patient pulled them out, but because all veins were collapsed. Respondent stated to Investigator Reese that he had to leave the patient after suturing the wound to examine a family member across the hall. At no time did Respondent leave the emergency room. Respondent stated to Investigator Reese that there was no indication that the femoral vessels had been cut, as he had checked the wound and that is not the direction the femoral artery runs. Respondent believed the wound was not life-threatening, that after the bleeding was stopped and the wound sutured the patient was in pretty good shape and was going to be fine. Respondent was not aware the femoral vessels had been severed until informed at the circuit court hearing of June 6, 1989. Respondent reported in his medical record the patient "became shocky" at approximately 1:30 a.m., after the suturing. The massive blood loss, disorientation and combativeness, peripheral vascular collapse, and lack of vital signs all indicate Prince was in shock when admitted and Respondent did not recognize this fact. Respondent instead believed Prince to be a combative drunk and his course of treatment indicates this perception. The emergency room physician should prioritize his actions in such a way that the most critical factor is treated promptly and other, less dangerous factors are given lesser priority. The correct treatment of this patient would have been for Respondent to direct all efforts of the E.R. team toward immediately reestablishing Prince's blood volume, then blood replacement. The wound itself could have been easily controlled by pressure, tourniqueted by the MAST pants, or even left for later care. Rather than misdirecting his attention to suturing the wound, Respondent should have performed the cutdown or placed a CVP catheter to start IV fluids as soon as it was evident that the nurses could not start the IVs and Respondent should have ensured that blood was being obtained as soon as possible. Respondent's suturing of the wound was ineffective in any case, as only superficial layers were stitched, and the wound remained unexplored. Respondent did not practice with the acceptable level of care, skill and treatment of a reasonably prudent similar physician under similar conditions and circumstances in that Respondent did not correctly assess Prince's physical condition and therefore misdirected his attention to suturing the wound instead of establishing intravenous access for immediate fluid replacement. Respondent's entire written medical record consists of his "Emergency Room Note." Respondent has documented no detailed history or physical examination: there is no documentation of the amount of blood loss, of the spurting blood, of the initial assessment of the patient's shock, or of consideration that the massive bleeding could have been from the great vessels and life threatening; there is no record that Respondent ever felt for pulses or obtained a pulse, no record of any neurological assessment or vascular status of the left leg distal to the wound, no conjunctival color noted, and no justification for giving his attention to the wound rather than immediately attempting to replace the lost blood volume; there is no note of a request for blood, how it could be or why it was not obtained. In short, prior to the cardiac arrest, there are no medical records written by Respondent which justify the course of treatment he followed with Prince.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order and therein REVOKE the medical license of Elliott F. Monroe. DONE and ENTERED this 19th day of June, 1991, in Tallahassee, Florida. DIANE K. KIESLING 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 19th day of June, 1991. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 91-0377 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2-13(1-9) and 14-53( 11-50). Proposed finding of fact 1 is unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Elliott Monroe Respondent's proposed findings of fact are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Mary B. Radkins, Senior Attorney Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Alfred O. Shuler Attorney at Law Post Office Box 850 Apalachicola, FL 32320 Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation 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 issue is whether Respondent is guilty of violating the applicable standard of care in the practice of optometry, the prohibition against filing reports or records known to be false, or the prohibition against fraud, deceit, misconduct, or negligence in the practice of optometry.
Findings Of Fact Respondent received his Florida optometry license in October 1982. He earned a doctorate in veterinary parasitology from the University of Florida in 1976 and an optometry doctorate from the New England College of Optometry in 1982. This case involves Respondent's failure to diagnose and treat glaucoma. Glaucoma refers to as many as 87 different types of conditions in which, in most of these conditions, intra-ocular pressure reduces the amount of blood that circulates into the optic nerve. The optic nerve consists of thousands of fibers, each of which transmits from a retinal position--anywhere from central vision to the periphery--to the portion of the brain dedicated to visual processing. Deprived of blood, fibers lose their ability to transmit from the eye to the brain. Traditionally, glaucoma has been associated with high intra-ocular pressure. In the early 1980s, nearly all professionals believed that low- or normal-pressure glaucoma did not exist. However, since the mid-1980s, opthamologists have recognized that about 25 percent of patients suffering from glaucoma do not experience high intra-ocular pressure. Optometrists arrived at the same knowledge a few years later, and general understanding of low- or normal-pressure glaucoma has increased through the 1990s. Persons suffering low- or normal-pressure glaucoma have an optic nerve that is unusually susceptible to damage from intra-ocular pressure. Such persons often display low blood pressure or fluctuating blood pressure. The differential between the greater, though normal or low, intra-ocular pressure and the low blood pressure can impede blood circulation to the optic nerve. Thus, just as persons displaying low intra-ocular pressure may suffer from glaucoma, so persons displaying high intra-ocular pressure may not suffer from glaucoma. Intra-ocular pressure is therefore not an especially definitive indicator of the presence of glaucoma, although high intra-ocular pressure remains a good indicator. The cupping of the optic nerve is another indicator of glaucoma that is not especially definitive. Cupping refers to the indentation of the optic nerve as it enters the eye. Cupping may be due to the response of the optic nerve to intra-ocular tension. However, some persons display physiological cupping, which merely reflects the physical makeup of that patient's optic nerve and does not necessarily indicate any malfunction in the nerve. The older method of determining the extent of cupping required an assessment of the color of the optic nerve. Pink is indicative of healthy tissue, and white is indicative of the cupped area. A newer method of determining the extent of cupping requires an assessment of the extent of bending of the blood vessels, which are indicative of the extent of the bending of the optic nerve fibers, which themselves cannot be seen through their entire bend. One factor that has, at all material times, been a strong risk factor for glaucoma is a family history of glaucoma, especially a maternal genetic predisposition to the disease. Obtaining a history is thus important to an early diagnosis of glaucoma. However, the linkage between high-pressure glaucoma and low- or normal-pressure glaucoma is not especially strong, so family histories, given the failure to recognize low- or normal- pressure glaucoma until recently, often do not reveal the existence of low- or normal-pressure glaucoma. After a genetic predisposition toward glaucoma (and probably more important given the failure of the relevant professional communities to recognize low- and normal-pressure glaucoma until recently), the most important indicator of glaucoma is an impairment of a person's visual field. A visual field test is the most important diagnostic test because it determines the extent to which a person may have suffered a visual loss in any part of his or her visual field. There are different types of visual field tests. The most basic visual field test consists of a mere screening. This is a confrontational field examination in which the optometrist places his or her fingers in the four quadrants of the patient's visual field and asks the patient what he or she can see. This screening has been part of the practice of optometry at all material times. Permitting a more accurate test, the Goldman visual field machine has been available since the early 1980s, although it did not become a standard piece of equipment in optometrists' offices until somewhat later. At present, the Humphrey Perimeter machine is a newer piece of equipment. The basic components of this machine have been available since the early 1980s, but not as long as the Goldman visual field machine. The Humphrey Perimeter machine supplies a light stimulus to different locations within the patient's visual field, and the patient is given a means by which to indicate electronically the location, size, and brightness of the light source. The Humphrey Perimeter machine then maps out the data, so as to provide an easily digestible, graphic display of any deficiencies in a patient's visual field. As apparent in the some of the preceding findings, expertise in the diagnosis of glaucoma has advanced considerably in the past 10 years. At the same time, regulatory and customary restraints upon the ability of optometrists started to lift about 10-15 years ago, as optometrists gained the right to dilate pupils and administer a wide range of prescription drugs, including drugs necessary to treat glaucoma. By the late 1980s, the Humphrey Perimeter machine, or other, similar forms of automated periphery machines, began to appear with regularity in the offices of optometrists. Shortly after entering practice, Respondent, in 1983, purchased the practice of David Johnson, an opthamologist. Dr. Johnson's office was located in Brooksville, which is where Respondent has maintained his practice of optometry. From the date of the purchase until sometime in 1985, Dr. Johnson practiced on a consultative basis in Respondent's office. Respondent examined R. L., who was born in 1940 or 1941, four times: November 6, 1984; June 17, 1987; October 18, 1989; and October 11, 1990. At the first, as well as the other three, office visits, an assistant performed the confrontational field screening to assess R. L.'s visual field. These tests disclosed nothing abnormal. During the first and ensuing visits, an assistant or Respondent tested R. L.'s intra-ocular pressure. These tests disclosed nothing abnormal. The notes from the first office visit state that there was no family history of eye problems. During the first visit, Respondent examined R. L.'s eyes and found a possible abnormality--cupping--in the appearance of the patient's optic nerves. Dr. Johnson was in the office at the time, so Respondent asked Dr. Johnson to examine R. L., who had previously been Dr. Johnson's patient. Dr. Johnson examined R. L. and determined that his optic nerves were normal. At the conclusion of the first visit, Respondent discussed with R. L. the cupped appearance of his optic nerve. Respondent showed R. L. intra-ocular photographs of his optic nerve and a normal optic nerve and told R. L. that his cupping was physiological. R. L. testified that he did not feel that Respondent necessarily should have detected the glaucoma until the third visit. At the second and third office visits, Respondent found that the extent of cupping had remained substantially unchanged. At the second office visit, though, R. L. reported that his mother had suffered from glaucoma. The office records reveal that his blood pressure was 108/62, which is somewhat low. By the third office visit, Respondent had purchased an automated perimeter machine for use in his office. Respondent suggested that R. L. undergo a visual field test using this machine on each of the last two visits. However, R. L. refused to do so. At the end of the third and fourth office visits, Respondent suggested that R. L. see an opthamologist, but R. L. declined to do so after the third office visit. A few days after the fourth visit, evidently following Respondent's recommendation, R. L. visited an opthamologist for an examination. In performing his examination, the opthamologist discovered that R. L. had advanced glaucoma. R. L. has since undergone glaucoma surgery to relieve intra-ocular pressure. His vision is impaired. Although an earlier diagnosis probably would have slowed the deterioration in his vision, it would not have altered the eventual outcome of the disease, which is continued deterioration in vision. The evidence is decidedly vague concerning the applicable standard of care in Brooksville, or even in Florida, at the time of each of the four office visits from 1984-1990. This was a period characterized by many changes in the understanding of glaucoma by the optometric community, as well as the opthamologic community, and by the distribution of automated perimeter equipment, which facilitates sophisticated visual field testing. Obviously, the difficulty in establishing the applicable standards of care is heightened by the fact that 9-15 years passed, following the office visits, before Petitioner referred this case to the Division of Administrative Hearings. Neither the opthamologic nor the optometric community was widely aware of the existence of low- or normal-pressure glaucoma until after the first visit. The optometric community did not become aware of the existence of this form of glaucoma until after the expiration of this six-year period. At the time of the first three visits, Respondent met the standard of care applicable to optometrists in Florida, and certainly in Brooksville, by having his staff conduct confrontation visual field examinations, testing intra-ocular pressure, and monitoring the cupping to ensure that it did not worsen. Although the cupping was relatively severe at the time of the first visit, so that it could not deteriorate significantly, Respondent had properly obtained the diagnosis of an opthamologist, who had previously cared for R. L., to support Respondent's conclusion that the cupping was merely physiological in origin. At no time did Respondent's diagnostic efforts deviate from the applicable standard of care. His acquisition of automated perimeter equipment was early for the Brooksville optometric community, and the record does not establish that the Florida optometric community widely acquired such equipment any earlier, or even at the time that Respondent did. Respondent properly suggested to R. L. during the third and fourth visits that R. L. undergo more sophisticated visual field testing, as Respondent was eager to put his new equipment to use, but R. L. declined to undergo the procedure because he felt that it was unnecessary. Likewise, Respondent properly suggested to R. L. during the third and fourth visits that R. L. see an opthamologist, but R. L. declined to do so. Respondent's records are austere, but Petitioner has failed to prove by clear and convincing evidence that Respondent did not adequately record the course of his care of R. L. The better practice would have suggested more detailed records and more detailed records prepared contemporaneous to the dates of care. However, the omissions did not establish by clear and convincing evidence a violation of the recordkeeping requirements, nor did any late entries establish by clear and convincing evidence an intent to deceive. Lastly, Respondent underwent a deposition in a civil action for damages that R. L. brought against him. The plaintiff's attorney asked Respondent: "[Have you ever had] [c]omplaints of any kind of department of regulation of any kind?" Respondent responded by asking, "From a patient or anything?" The attorney answered, "Yes." And Respondent replied, "Not that I am aware of." Respondent has been disciplined twice in the past. However, both of these situations involved Petitioner-initiated charges, which were not based on complaints from actual patients of Respondent. Petitioner has thus failed to prove by clear and convincing evidence that Respondent committed fraud or deceit in the practice of optometry by answering this vague question in the negative. It is at least as likely as not that Respondent's use of "or anything" in his responsive question meant only to restate the notion that his answer would be limited to patient-initiated charges.
Recommendation It is RECOMMENDED that the Board of Optometry enter a final order dismissing the Administrative Complaint, as amended, against Respondent. DONE AND ENTERED this 15th day of December, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1999. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Eric G. Walker, Executive Director Board of Optometry Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792 Thomas E. Wright, Senior Attorney Agency for Health Care Administration General Counsel's Office Medical Quality Assurance, Allied Health Post Office Box 14229 Tallahassee, Florida 32317-4229 William B. Taylor, IV Macfarlane Ferguson & McMullen Post Office Box 1531 Tampa, Florida 33601-1531
The Issue Whether Respondent, in treating Patient #1 in 1987, failed to practice medicine with that level of care, skill, and treatment which a reasonably similar physician recognizes as acceptable under similar conditions and circumstances; and whether Respondent failed to keep written medical records justifying the course of treatment of Patient #1.
Findings Of Fact At all times relevant hereto, Respondent was licensed as a medical doctor by the Florida Board of Medicine. Respondent graduated from the University of Tehran in 1961; interned at Grace Hospital in Detroit, Michigan, in 1961-62; took Residency in Internal Medicine in 1962-65; and a Fellowship in Cardiology in 1965-67, the latter two in Detroit hospitals. He is not board- certified in Cardiology. Patient #1 (hereinafter designated as "Patient") was referred to Respondent by Dr. Barker, the company physician for General Electric Company in Largo, Florida, where Patient was employed on July 23, 1976. Patient's chief complaint was a recent weight gain, tiredness, headaches and high blood pressure. Following a physician examination of the patient, the impression of hypertension was recorded (Exhibit 2), laboratory tests were performed which included a thyroid profile; and Hydrodiruil, 50 mg., was prescribed. At a second visit one week later (July 30) Hypothyroidism was documented, a thyroid scan was ordered and Patient was told to return in one week. Patient was thereafter seen by Respondent on August 10, 1976; September 7, 1976; October 12, 1976; January, March, July and October 1977; January, April, June and November 1978; February, May and December 1979; March, June and September 1980; January, April, July and October 1981; January, April, July, September, October, November and December 1982; February, March, April, May, August, September, October, November and December 1983; January, March, April (3), June, August and November 1984; February, May, August and November, 1985; February, April, May, June, July and October 1986; January, February and March (2), 1987. In January 1982 Patient reported pain in the right shoulder and neck region. In July he reported chest pain and was prescribed nitroglycerin. In November he again reported three to five minute chest pains. No significant changes were reported in 1983. Patient was taking Synthroid daily during this period. Although not reported in doctor's notes, on December 4, 1984, a routine electrocardiogram reviewed by Dr. Paul Phillips was reported as abnormal (Exhibit 2, page 72). On the May 13, 1986, visit, a stress test was ordered for Patient which was administered 5/21/86. The test was stopped after 6.2 minutes because the exercise resulted in leg fatigue and shortness of breath. The report (Exhibit 2, page 55) shows: I. Limited aerobic capacity; II. Normal resting and exercise EKG, and III. No detectable symptomatic ischemic heart disease. A subsequent EKG taken January 7, 1987, viewed by the same doctor, was reported as abnormal (Exhibit 2, page 26). The January 15, 1987 entry in Exhibit 2 states EKG with no change. No additional tests were ordered. During the period after January 1987, the patient began experiencing more chest pains and inability to withstand exertion, although Respondent's notes for the February 23, 1987, visit states "EKG normal, walks three miles a day with no problem in the past two weeks." This information can only have come from the patient and tends to refute the patient's wife's testimony that Patient was experiencing severe chest pains in February 1987. On the other hand, the wife testified that in February 1987 they visited a son in Atlanta, Georgia, and the patient and his son went to the park to exercise. The first day the patient walked briskly without discomfort, but his pulse did not rise. The following day when he attempted the same walk, the pain was so severe he could not walk. On March 2, 1982, as noted in Exhibit 2, Patient still complained of lower sternal discomfort. An echocardiogram was ordered which, as best I can read the handwritten notes (Exhibit 2, page 40) indicates normal findings. Patient returned to Respondent's office on March 10, 1987, complaining of chest pains on and off. Procordia was ordered, and Patient was directed to return in one week. On March 11, 1987, Patient went to work as usual. When he didn't telephone his wife to say he had arrived safely, the wife called the patient who reported he had great difficulty walking from his parked car to the office and that he was in a lot of pain. On March 12, 1987, Patient did not go to work. Sometime that morning, either Patient or his wife telephoned Respondent but were unable to reach him. Word was left for Respondent to call. The call from Respondent came around 10 p.m., March 12, and Patient was advised to go to the hospital. Patient was admitted to the emergency room at Humana Hospital, St. Petersburg, Florida, at 11:53 p.m., March 12, 1987, after arriving at 10:45 p.m. On March 13, 1987, Patient had occasional chest pains and cardiac enzymes were elevated. He was medicated with Inderal, Isurdil, Xanax, Morphine and Zantac. The hospital medication chart (Exhibit 3, page 15) shows Patient was administered Nitroglycerine at 0330, 0805 and 1830; that he was administered Morphine Sulphate at 0923 and 1530; Demoral at 0810; Lasix at 1930; and Heparin at 1940. Exhibit 3 on page 16 indicates Patient received Inogral, Isordil, Maalox, Zomax, Zantac and Tigen, but does not indicate when. Exhibit 3, Page 17 indicates Patient received D5W, Dopamine, Heparin, Lanoxin and Varapimal on March 13, 1987. The patient remained in the Emergency Room until 2030, March 13, due to no bed available. He apparently suffered a massive heart attack around 7:45 p.m. while in the Emergency Room. Nurses notes for March 13, 1987, indicates Patient was sleeping during the early morning hours, was given Nitroglycerine at 0330 for chest pain and Morphine Sulphate at 0400; at 0730. Patient appeared in no discomfort; at 0805. Patient complained of pressure sensation in midsternal area and was medicated with Nitroglycerine but continued to complain of chest discomfort and was given Demoral; at 0930 Patient complained of heart burn after eating breakfast relieved with burping; at 1010 Patient complained of slight chest pressure, given Nitroglycerine; seen by Respondent and wife at 1045 and 1400; 1530 complained of pain and was given Morphine Sulphate; 1815 vomited two basins full; 1830 Patient sweating profusely (diaphoretic), given Nitroglycerine, and at 1845 Morphine Sulphate for chest pain and discomfort; at 1850 an emergency EKG was done and Respondent was paged; at 1905 EKG reviewed and Dopamine drip began; at 1920 Dopamine drip increased 10 cc.; 1930 Lasix administered; 1940 Heparine administered, 7500 units IVP; 2000 Dopamine increased to 15 cc.; 2015 Lanoxin given and Dopamine increased to 25 cc.; 2030 patient vomited approximately 500 cc. reddish fluid; 2035 Verapamil given; 2110 Lanoxin 25 mg. repeated and Dopamine increased to 35 cc.; 2125 patient extremely restless, respiration labored - Valium and Atropine given; and code called. Discharge summary shows that at 1945 Patient developed acute respiratory distress, profuse perspiration and no chest pain. The patient was intubated, subclavian catheter was inserted in the right atrium, Patient was given full CPR, Epinephrine injection and intravenous bicarbonate. Patient expired at 2219. Petitioner's expert witness opined that prior to January 1987 Respondent's treatment of the patient met the prescribed standard of care for physicians, but subsequent thereto it did not. This opinion is predicated upon the worsening of Patient's condition in January, February and March 1987. Although there was an abnormal EKG in 1984, no evidence was presented that this EKG changed when subsequent EKGs were taken. Respondent's notes state no change in the EKGs taken through January 15, 1987. The entry made January 15, 1987, specifically found no change in EKG. Abnormal EKGs were reported in 1984 and on January 7, 1987. No evidence was presented to contradict the July 15, 1987, entry that there was no change in the EKG. The increase in cardiac enzymes found March 13, 1987, is evidence that damage to the heart muscle had occurred. Petitioner's expert faults Respondent for not ordering an angiogram at this time to determine the condition of the blood vessels to and from the patient's heart. Despite the fact that Patient was at Humana Hospital which did not have a cardio-cath lab, Petitioner's expert opined that the patient should have been transferred to a tertiary care hospital in the area with such facilities. Respondent, on the other hand, contends that invasive procedures at that time would have been fatal to this patient. In his testimony Respondent opined that the patient had chronic stable angina before he was even forty. Further, that the patient fit in the category of the population with a single coronary artery disease that have a malignant course; that this patient, who had this type of artery disease, was foredoomed to die, and nothing could have saved him, and that any invasive procedure would have resulted in the death of the patient. Respondent contends that the autopsy report confirms this opinion. Despite this testimony a majority of the publications presented by Respondent as late-filed exhibits contained discussions regarding the treatment of patients with unstable angina. Petitioner's expert witness opined that the rapidly deterioration of the patient on March 11, 1992, clearly demonstrated the patient needed to be hospitalized and invasive procedures initiated to determine the condition of the patient's arteries. It is the failure to initiate such procedures that rendered the treatment of this patient below the minimum acceptable standards of treatment recognized by a reasonably prudent similar physician as being acceptable under similar circumstances and conditions. Petitioner's witness further opined that the physician's records regarding this patient were insufficient to justify the course of treatment of the patient. This opinion was based upon the fact he found Respondent's records "rather limited, often almost illegible, and did not really reflect the collection of subjective and objective data that could lead one then to follow the process of evaluation and management of either gastrointestinal problems or cardiac problems." He further concluded that these records did not reflect a cardiac diagnosis of the patient.
Recommendation It is recommended that a Final Order be entered finding Si H. Azar guilty of violation of Section 458.331(t) and not guilty of violating Section 458.331(1)(m), Florida Statutes; that he be placed on probation for a period of three years under such terms and conditions as the Board of Medicine deems appropriate; and that he be required to take additional continuing education courses in the use of invasive procedures and in diagnosis and treatment of cardiac patients. ENTERED this 2nd day of, July 1992, in Tallahassee, Florida. K. N. AYERS 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 2nd day of July, 1992. COPIES FURNISHED: Michael K. Blazicek, Esquire Jack McRay, Esquire Department of Professional General Counsel Regulation Department of Professional 730 S. Sterling Avenue Regulation Tampa, FL 33609-4582 1940 N. Monroe Street Suite 60 Si H. Azar Tallahassee, FL 32399-0792 3820 Gulf Boulevard, Apt. 1003 St. Petersburg Beach, FL 33706 Dorothy Faircloth Executive Director Board of Medicine Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
The Issue Whether the Respondent is guilty of malpractice and failure to keep adequate medical records in treating patients O.T. in December 1986 and G.R. twice during the period January through April, 1987.
Findings Of Fact At all times relevant hereto Petitioner was licensed in Florida as a medical doctor, having been issued license number ME008336 with original license issued in 1957. Treatment of O.T. O.T. a seventy three-year-old female, had been a patient of Respondent for a number of years and who had trouble managing her diabetes because she could not afford the diet regimen. Respondent had suggested twice to O.T. and her husband that she needed to be hospitalized for a complete workup due to a gradual weight loss but they were deterred by the economics of payment involved. On December 18, 1987, O.T. and her husband came to Respondent's office. She complained of abdominal pains and her husband asked if Respondent could get her in the local hospital without paying the $400-$500 up-front fee demanded by the hospital. Respondent did a nonfasting blood sugar and found it close to 300. In consideration of her diabetes, advanced arteriosclerosis and gradual deterioration, Respondent told them to go to the emergency room at the hospital and ask for him. O.T. walked out of Respondent's office and presumably walked into the emergency room at Heart of Florida Hospital, Haines City, Florida and asked for Respondent. O.T. was admitted to the hospital at 12:20 p.m. While in the emergency room, Respondent ordered a fasting blood sugar, urinalysis, and electrolytes. Although the urinalysis showed the white blood count (WBC) to be high, which is indicative of infection, Respondent was not overly concerned because O.T. had not bathed for several days and the normal body secretions could render the WBC suspect. The electrolytes were close to normal range but the fasting blood sugar was again very high. Respondent ordered a complete chemical profile, (SMAC-23), a CBC, a fasting blood sugar daily, an upper G.I. series, barium enema and chest x-ray, put O.T. on clear liquids, IV with insulin, bed rest with vital signs four times a day, and medication for heart and blood pressure. Respondent testified that the normal practice at this hospital was for the lab report on SMAC tests to be available the same afternoon if sent to the lab before noon. Accordingly, he did not request expedited reports on the SMAC- 23, however, the CBC was done at the hospital lab. Respondent visited O.T. at the hospital around 5:00 p.m. December 18. Respondent testified that, at that time, O.T. looked alright and he told O.T.'s husband that he could go home and get some rest. Respondent further testified that the results of the CBC were not in the chart at that time and he was unaware of the 7.1 hemoglobin count and WBC of 60,000. In the physical exam (Exhibit 1) "Impression" included uncontrolled diabetes and anemia. In "History," (Exhibit 1) Respondent wrote "patient was also found to have a hemoglobin of 7 and a gastrointestinal workup was scheduled." Physician's Order Sheets (Exhibit 1) shows 5:30 p.m. order for a stool sample to be taken that evening and the next morning to test for occult blood in the stool. Also shown is an 8:45 p.m. order to change the IV given to patient and to "type and match for three units PC to be infused tonight." This latter order-was issued when Respondent received the 8:45 p.m. call from nurse Turner advising of the hemoglobin count. Physician's Order Sheet contains a final entry pronounced "pronounced dead at 9:30 p.m." The lab report on the CBC shows the test was completed at 2:42 p.m. December 18 (Exhibit 1). Under normal procedure, this lab report would have been picked up by the shift coming on duty after 2:42 p.m. and the lab would notify the doctor of readings well beyond the normal limits. Nurses notes (Exhibit 1) for the 4:00-5:00 p.m. entry on December 18 for O.T. states "Dr. Dam aware of CBC results done 1:57 p.m. today -- no new orders given. Nurses notes (Exhibit 1) at times 6:00 - 6:00 p.m. shows O.T.'s husband at bedside. The 8:00 - 8:45 entry in nurses notes states, "patient with shortness of breath, cold and clammy -- unable to get B/P and pulse. Dr. Dam notified." Respondent's testimony otherwise unrebutted, was that he was called by nurse Turner at home around 8:45 p.m. to tell him the hemoglobin count was 7.1 and he was unaware of the CBC lab report until after O.T. died that evening. Respondent further testified that when he was called by nurse Turner at 8:45, he asked for O.T.'s vital signs and held the phone line open until Turner took these vital signs and reported the absence of blood pressure and pulse. Turner was then told to code the patient and that Respondent would proceed immediately to the hospital. Nurse's notes at 9:05 show Respondent arrived -- "Patient is continually becoming unresponsive -- no palpable pulse B/P -- code blue called." 9:19 patient pronounced dead by Mr. Dan." The failure of a physician to order a transfusion on a patient with the low hemoglobin count experienced by O.T., or to order antibiotics and studies to determine the cause of the extremely high white blood count reported on the urinalysis for O.T. would constitute gross negligence and a failure to treat a patient with that level of care and skill which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Petitioner's expert witnesses fault Respondent for not ordering a blood transfusion on O.T. when the diagnosis of anemia was made and especially when the results of the CBC were completed. Giving O.T. fluid intravenously would tend to dilute the blood and aggravate the anemia. These witnesses obviously give greater credence to the nurses notes than to Respondent's contention that he did not know of the hemoglobin reading of 7 until called at home the evening O.T. died. These witnesses also fault Respondent for not having a urine culture taken to determine the degree of urinary tract infection and to start patient on antibiotics; and for failure to do a rectal exam as part of the physical exam, particularly when the patient was anemic and the possibility of internal bleeding was real. Treatment of G.R. G.R. was admitted to Heart of Florida Hospital on January 28, 1987 and discharged February 2, 1987; and again was an in-patient from March 30, 1987 until April 3, 1987. On both admissions, she was under the care of Respondent. G.R. is an 85-year-old female who was admitted to the hospital in January complaining of "nervous spells" and with a blood pressure of 220/136 (Exhibit 2). This high, (136) diastolic pressure is very serious and normally an electroencephalogram (EEG) is indicated to determine if the patient has a convulsive disorder. The CT scan ordered by Respondent would not disclose convulsive disorders. Petitioner's expert witnesses' opinions that the treatment received by G.R. on this first admission by Respondent fell below the minimum standards of acceptable care was based largely on the failure of Respondent to order an EEG. However, these witnesses acknowledged that, if this patient had to be transferred some 15 miles by ambulance to another hospital having EEG equipment and a neurologist to read the EEG, that risk was equal to or greater than the risk of not doing an EEG. At the time of G.R.'s first admission, Heart of Florida Hospital did not have the equipment or staff to take and read an EEG. G.R. was admitted to the hospital on March 30, 1987, complaining of extreme nervousness and lower abdominal pain. She had become a compulsive drinker of water and had developed polyuria. A physical examination by Respondent (Exhibit 2) diagnosed: 1). Severe anxiety state. Rule out diabetes insipidus; and 2). Senility. Rule out alzheimers. However, the history of this patient dated March 30, 1987, contained the diagnosis that the patient had developed polyuria which was referred to in subsequent testimony at the hearing as water intoxication or hyponatremia. It was the treatment of G.R.'s hyponatremia that Petitioner contends is below the prescribed standard of care. Petitioner's expert could not determine from patient's records whether the hyponatremia was chronic or acute. Respondent testified that he determined it to be chronic. Upon admission of G.R. three sets of electrolyte tests showed patient's sodium to be markedly depressed at 114 and the chlorine was low at 80. Respondent treated G.R. with a restriction in fluids and a high salt diet. Petitioner's expert considered the low sodium of 114 to be a serious condition which should have been treated more aggressively than was done by Respondent. specifically, these witnesses contend that the failure of Respondent to start an IV on G.R. with a saline solution to rapidly bring the sodium level up fell below acceptable medical standards. On the other hand, Respondent's expert witnesses, contend the treatment given G.R. was appropriate and that an elderly patient with heart problems should not be given concentrated doses of salt as that could aggravate the heart condition. Petitioner's experts deemed the failure to continue to monitor the electrolytes until the sodium level reached acceptable levels constituted practice below the acceptable standard. According to these witnesses, it was below minimum acceptable standards to discharge G.R. before the sodium level reached normal limits. Respondent, on the other hand, observed improvement in G.R. before additional electrolytes were measured and the family of G.R. as anxious to get her out of the hospital. Since fluid intake and the medication taken by G.R. could be monitored at home as well as in the hospital, the discharge of G.R. before the sodium reached a normal level did not constitute the practice of medicine below minimum acceptable standards. Patient Records With respect to the allegations that the medical records maintained by Respondent on patient's O.T. and G.R. were not adequate to justify the course of treatment for these patients, Petitioner's experts testified these records were not adequate and Respondent's experts testified they were adequate. None presented the factual bases of his opinion.
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 Michael D. Dam guilty of violation of Section 458.331(1)(t), Florida Statutes; that his license be suspended for a period of three months; that he be required to take a remedial course in family medicine; and that he be placed on probation for a period of two years under such conditions the Board deems appropriate. DONE AND ENTERED this 15th day of June, 1989, in Tallahassee, Leon County, Florida. K.N. AYERS 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 15th day of June, 1989. COPIES FURNISHED: Peter S. Fleitman, Esquire 401 Northwest Second Avenue Suite N Miami, FL 33128 Harrison T. Slaughter, Jr., Esquire 56 East Pine Street, Suite Orlando, FL - 32801 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 1940 North Monroe Street, Ste. 60 Tallahassee, FL 32399-0729 Bruce D. Lamb General Counsel Department of Professional Regulation 1940 North Monroe- Street, Ste. 60 Tallahassee, FL 32399-0729
