The Issue The issues are whether Respondent failed to maintain emergency medications, in violation of Florida Administrative Code Rule 59A-9.0225(1), and failed to ensure that a defibrillator was available for immediate use, in violation of Florida Administrative Code Rule 59A-9.0225(2). If so, another issue is the penalty that should be imposed.
Findings Of Fact At all material times, Respondent has operated, under the jurisdiction of Petitioner, a licensed abortion clinic facility, bearing license number 899. The facility in question is located in North Miami Beach. At the time of the surveys described below, Respondent also operated another facility in south Miami, but that facility is not involved in this case. All references to "facility" will therefore refer to the North Miami Beach location. On June 8, 2010, one of Petitioner's surveyors conducted a relicensure survey of Respondent's facility. As is typical of such surveys, this survey was unannounced. During the survey, the surveyor discovered three expired medications in the facility: 0.2 mg Isuprel®--expired August 2009, 0.4 mg atropine--expired February 2010, and an unspecified dosage of nalbuphone--expired February 2010. These expired medications were on a shelf in the operating room. During the survey, the surveyor also discovered that the facility did not have a defibrillator. At the conclusion of the survey, the surveyor conducted an exit conference with the sole employee present at the facility. During this conference, the surveyor explained these deficiencies and gave Respondent until July 8, 2010, to correct them. Subsequently, the surveyor prepared a report showing these violations and confirming that the deadline for correcting both deficiencies was July 8, 2010. On April 21, 2011, the surveyor returned, again unannounced, to the facility to conduct a followup survey and again found only one employee present at the facility. During this survey, the surveyor discovered three expired medications in the facility: one 500-ml IV bag of Lactated Ringer's-- expired April 2009, 1 mg atropine--expired November 2010, and 2% lidocaine hydrochloride injection--expired November 2010. The surveyor found these expired medications in a locked storage box on the crash cart, which is the cart used for medical emergencies. During the followup survey, the surveyor also discovered that the facility did not have a defibrillator. On the dates of both surveys, the facility did not have any surgical procedures scheduled. Also, no patients were present at anytime during either survey. During each survey, the surveyor selected five dates at random to determine if the facility had performed any second- trimester abortions, and she found that no such procedures had been performed on any of these dates. For this reason, the surveyor did not cite the facility for any violations that are contingent on the actual performance of second-trimester abortions--such as, the failure to have a registered nurse in the recovery room. Similarly, because no patient was present during the surveys, the surveyor testified that she did not cite the facility for a failure to maintain anaesthesia equipment in the operating room; the surveyor explained that the anaesthesiologist brings his or her own equipment when attending a surgical procedure. The surveyor explained that she cited Respondent for the deficiencies alleged in this case because they are contingent upon licensure only, not licensure and the actual performance of second-trimester abortions. At the time of each survey, regardless of the level of patient activity, the facility was open and capable of supporting the procedures for which it is licensed. Dr. Rosenthal offered an explanation for each of the deficiencies cited in this case. As he testified, the expired medications found during the followup survey were in a locked storage box maintained by a certified registered nurse anesthetist, who had not worked at the facility for several years, but had never returned to retrieve her storage box. However, Dr. Rosenthal's explanation does not account for why the surveyor missed the Lactated Ringer's IV fluid during the original relicensure survey, if, in fact, she did miss this item. (The other two items were not expired at the time of the earlier survey.) Notwithstanding any shortcoming in Dr. Rosenthal's explanation, more importantly, the record fails to establish the absence of current emergency medications and IV fluids at the facility. As noted below, the cited rule requires that the facility contains these items; as long as it does, the cited rule is not violated by the presence of expired medications and fluids at the facility. The presence of such expired items is insufficient, especially when the standard of proof, as noted below, is clear and convincing evidence, to support an inference that adequate, current medications and IV fluids were not also available at the facility. As Dr. Rosenthal testified, at the time of both surveys, Respondent maintained a single defibrillator, which he transferred from one facility to another, depending on which facility was to be the site of surgical procedures on a given day. This explanation is not responsive to the requirement of a defibrillator at each facility.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order finding Respondent guilty of failing to maintain a defibrillator and imposing an administrative fine of $500 for this violation and dismissing the charge pertaining to expired medications and IV fluids. DONE AND ENTERED this 10th day of July, 2012, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2012. COPIES FURNISHED: Vlad Van Rosenthal A Medical Office for Women Suite 402 909 Northeast 163rd Street Miami, Florida 33160 Nelson E. Rodney, Esquire Agency for Health Care Administration Suite 300 8333 Northwest 53rd Street Miami, Florida 33166 nelson.rodney@ahca.myflorida.com Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Elizabeth Dudek, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308
Findings Of Fact Pursuant to its Administrative Complaint filed July 12, 1982, the Department of Professional Regulation, Board of Medical Examiners, seeks to revoke, suspend or take other disciplinary action against the Respondent as a licensed physician in the State of Florida. It was stipulated by the parties that the Respondent is a physician licensed by the State of Florida. The petitioner is an agency charged with the licensure and regulation of licensure status, professional practice and discipline of physicians licensed in Florida. The Respondent is licensed to practice medicine also in the states of Virginia and North Carolina. He graduated from medical school at the University of Virginia in 1949 and has been in active practice in Florida since 1959, when he began practice at Fernandina, Nassau County, Florida. The Respondent maintains an office at Fernandina, as well as one in Jacksonville. He is 63 years of age and practices in the area of family practice. He has been a member of the American Academy of Family practice since 1973. He is also a member of the Duval County Academy of Family Practice and has served as an officer of that organization and an active participant. The Respondent has been on probation pursuant to a stipulation entered into with the Board of Medical Examiners in December, 1981. The Respondent was placed on probation for a period of two years, effective January 4, 1982, after having admitted, by stipulation, that he issued a pre-signed prescription for Sultrin Creme for use by a nurse midwife in 1980; and that he prescribed Percocet and Percodan inappropriately to a patient in 1980. The Respondent's practice is primarily an office practice with practice at clinics around the state to which he devotes a certain number of days per month. The St. Augustine Maternity Clinic, Inc., apparently owned and operated by Carolle Baya (the evidence does not establish her precise relationship to the clinic) is one type of such clinic. Carolle Baya is a lay midwife, who at times pertinent hereto was not licensed to practice lay midwifery in the State of Florida. Because of her continuation in the practice of lay midwifery in St. Johns County, she was prosecuted in 1979 by the State Attorney for St. Johns County, which criminal charges were later dropped. She was then sued by the Department of Health and Rehabilitative Services in an attempt by that Department to enjoin her from practicing lay midwifery without a license. Carolle Baya obtained a favorable judgment in that civil action when the lay midwifery statute, then in effect, was declared unconstitutional by the Circuit Court in and for St. Johns County, Florida. Thus, Carolle Baya, at times pertinent hereto, was practicing lay midwifery, although without a license, under the legal aegis of the Circuit Court of the 7th Judicial Circuit, pursuant to that final judgment entered on October 10, 1979, in Case No. 79-313 (Respondent's Exhibit 4). Under the law as it existed at times pertinent to this case, the Department of Health and Rehabilitative Services required lay midwives to associate themselves with physicians, at least for purposes of providing examination of their patients prior to home births. (Rule 10D-36.25(a), Florida Administrative Code, "Supervision") Nevertheless, no physician in St. Johns County undertook to provide an association or "backup" to Carolle Baya for examination or backup care for her patients. Indeed, as established by Dr. Mussallem (for the Petitioner), the obstetricians in St. Johns County were responsible in general and Dr. Mussallem in particular, for the complaint lodged against Carolle Baya regarding her practice as a lay midwife. Thus, it was that Carolle Baya formed some sort of "backup" examination arrangement for her patients with the Respondent. On or about January 25, 1982, a newspaper advertisement was placed in the St. Augustine Record, stating that the Respondent was associated with the St. Augustine Maternity Center, Inc. The Respondent's name at the time of the filing of the Administrative Complaint on July 12, 1982, apparently appeared on the front of the St. Augustine Maternity Center, Inc., on a sign, although no evidence established that it was present on that facility at any earlier pertinent date. It was not established how the newspaper advertisement came to be published in the newspaper, and it was not shown for what purpose the Respondent's name appeared on the sign on the front of the St. Augustine Maternity Center, Inc. (either owned or operated by Carolle Baya) At the time the Administrative Complaint was filed, the Respondent was visiting that maternity clinic once a month for purposes of performing examinations of Carolle Baya's patients and general gynecological consultation and/or treatment. Dr. Mussallem, the only witness with any knowledge of the contents of the newspaper advertisement and the supposed sign, could not show whether or when the unintroduced newspaper advertisement was actually placed in a newspaper, nor the person responsible for its publishing, nor did he have any direct knowledge regarding whether the sign was actually displayed on the front of the clinic, nor who might have been responsible for doing so. His testimony in this regard is thus entirely hearsay and not creditable herein. Crystal Mull was a patient of Carolle Baya's throughout the entire term of her pregnancy, with a view toward having a midwife perform home delivery of her baby. Her entire prenatal care was under the direction of Carolle Baya. The Respondent, however, did examine Crystal Mull in approximately the eighth month of her pregnancy, October, 1981, with her mother present. Crystal Mull's mother, Mrs. Luellen McNairy, was of the belief that Dr. Britton was "like a sponsor or something like that." She admittedly was not sure what his relationship was with Carolle Baya, but that she "felt" that Carolle Baya referred to him for any medical questions she was unable to answer concerning a patient. The testimony of Mrs. McNairy and the testimony of Dr. Mussallem concerning what they "understood" the relationship between Britton and Baya to be (they admittedly had no direct knowledge), is the only testimony or evidence adduced by the Petitioner to show any sort of association of the Respondent with Carolle Baya's midwifery practice. The Respondent only went to Carolle Baya's clinic one day a month to perform gynecological examinations of her patients and was not present at the clinic supervising or advising Carolle Baya as to the care of her patients on a day-to-day or even a weekly basis, particularly the patients who are the subject of the Administrative Complaint. In any event, Carolle Baya wanted the doctor to meet her patient, Crystal Mull, to examine her so he could be familiar with her medical history. When he examined her he noted that the baby was quite large and he made a statement, according to Mrs. McNairy, to the effect that she might not be able to have the baby regularly and might have to be transported to the hospital. In the words of Mrs. McNairy, the Petitioner's witness herself, "It seemed to me that he was alerting us to the possibility that she might have to go to the hospital; there might be a difficult labor." Ultimately, Crystal Mull did have to be transported to the hospital for her delivery, although she had a normal, uneventful delivery and healthy baby. On the morning of her delivery, however, after progressing with her labor to a point, she failed to progress further and ceased to dilate. At approximately 1:30 or 2:00 on the morning of November 22, 1981, Ms. Baya came to the residence of Crystal Mull and her mother Luellen McNairy. Ms. Baya did a vaginal examination and periodically checked the fetal heart rate. The fetal heart rate was closely monitored to determine if any fetal distress was indicated by the baby's heartbeat. At approximately 10:00 the following morning, Carolle Baya called an unidentified person supposedly to consult with regarding doing something to relieve her patient's discomfort and pain, after she had been in labor for approximately 10 hours. Witness McNairy "believed" that Carolle Baya called Dr. Britton, however, the witness had no direct knowledge of who was on the other end of the telephone conversation with Carolle Baya and she is unaware of the substance of that conversation. A short time after the end of the telephone conversation, Mrs. McNairy observed Carolle Baya give Crystal Mull an injection in the hip and she seemed to relax some after that. Mrs. McNairy has no knowledge of the nature of the substance which was injected (although she surmised it might be Demerol). At about 12:30 pm on November 22, the membranes were ruptured, but the patient had not yet dilated as far as 8 centimeters. Thus, it was that Carolle Baya suggested that her patient and the patient's mother decide what they wished to do, that she did not want to make the final decision herself. Accordingly, the patient was admitted to the hospital at about 1:00 that afternoon. Ultimately, Crystal Mull experienced a normal delivery and she and her baby are currently in good health. On January 2, 1982, Dr. Anthony Mussallem saw Susan Thompson at around 6:30 or 7:00 in the evening. Her sister-in-law brought her in to see him at that time, at which she had reached in essence the full term of her pregnancy with her child being due on approximately January 7 or 8, 1982. The patient reported to Dr. Mussallem that Carolle Baya had been taking care of her prenatal course of care up until that point. While Carolle Baya was examining her that day in the St. Augustine Maternity Center, Inc., the patient's amniotic fluid began leaking and, inasmuch as labor usually begins within 24 hours of such an event, but in her case did not commence within 24 hours, the patient became worried and ultimately came in to see Dr. Mussallem. Dr. Mussallem did not speak with Carolle Baya concerning the condition of Susan Thompson nor did he see any medical records which had been maintained by Carolle Baya's maternity center concerning that patient. The doctor never talked to Dr. Britton concerning this patient. The patient informed him that she was given some tablets, supposedly to stimulate her labor and did not go into labor, but the doctor could not say what type of tablets were administered to the patient and, indeed, had no direct knowledge whether they were administered and, if so, who had administered them. Neither Dr. Mussallem nor Dr. Larroude have ever met the Respondent and neither could establish in any way the Respondent's connection, if any, with the maternity center owned or operated by Carolle Baya, nor with her practice as a lay midwife as any such relationship might have related to either patients Mull or Thompson. The most Dr. Mussallem, and indeed Dr. Larroude, could establish (in a "hearsay on hearsay" fashion), was that they "understood" that Dr. Britton provided "backup" to Carolle Baya in her midwifery practice. Dr. Mussallem could not say whether Pitocin or any other drug had actually been given Susan Thompson before he saw her as a patient on January 2. In any event, there was also no demonstration that the Respondent was aware at all that any medication had been prescribed either of the above-named patients or administered to them by Carolle Baya or anyone else. If indeed the patients were administered the drugs alleged in the Administrative Complaint, the Respondent did not support this activity nor have any knowledge of it. Susan Thompson was ultimately delivered of her baby on January 2, at 11:54 p.m., and both mother and child had a normal, uneventful birth. Susan Thompson could have been delivered of her baby by a trained midwife, inasmuch as she had a normal delivery, with no problems arising. In summary, the testimony of Drs. Mussallem and Larroude was predicated in all portions related to the charges in the Administrative Complaint on hearsay and those witnesses had no direct knowledge of the care given the patients in question at Carolle Baya's clinic by Carolle Baya and no knowledge of what type medication, if any, Carolle Baya or others unknown may have administered to those patients. Further, these witnesses do not know the Respondent, have no knowledge of the character and nature of his practice and have no direct knowledge regarding his professional relationships with Carolle Baya or her clinic, if any. These frailties render it impossible to accord significant weight to the testimony of these two witnesses. Ruth Hunter, Patricia Elaine Martin and Mary Ruth Ann Arick are all owners or supervisors of various women's health clinics. Dr. Britton is employed as a contract physician at each of these clinics and works at each clinic one or more times a month. The clinics are in Gainesville, Orlando and Holly Hill. The doctor is employed to perform first trimester abortions, vasectomies, insertion of IUDs, fitting of diaphragms and to provide miscellaneous gynecological care. All three of these witnesses established that the doctor is the best of any of the physicians employed by them, competently and professionally performing such procedures with a high degree of care and interest in the patient's condition. His practice at these clinics is characterized by his spending a great deal of time conversing with his patients and generally taking an interest in their condition and problems. They have all experienced that Dr. Britton has the lowest "complication rate," that is, problems arising after he performs various procedures, of any doctor who practices at their clinics. The testimony of these three witnesses was corroborated by that of Dr. John Freeman, a full-time physician with the Gainesville Women's Health Center, who established that the Respondent easily meets the appropriate standard of practice in all the work that he has performed for the Gainesville health center and excels above that standard of practice in most cases. Dr. Freeman was aware of the charges against Respondent in a general sense and established that injudicious use of drugs is totally out of character for the Respondent and that the Respondent is very conservative in prescribing any drugs, especially pain medications. Dr. Freeman is the staff physician at the clinic who reviews all procedures performed by other physicians. Ruth Hunter is a registered nurse, employed with the Gainesville Women's Health Center, who has worked with the Respondent in the vasectomy clinic at that facility. She has been an operating room nurse for approximately 15 years, and, based upon her experience with such duties and with physicians, she demonstrated that the Respondent is very capable in performing the procedures he was retained to perform for the clinic, with a very low complication rate and a very low incidence of prescribing any drugs at all during his practice at the clinic. Dr. Willard R. Gatling testified by deposition as an expert witness on behalf of the Respondent. He has known the Respondent professionally for approximately 15 years and the two of them have regularly attended educational and other meetings of the Duval County Academy of Family Practice on numerous occasions. Dr. Gatling has practiced medicine in the Jacksonville area for over 35 years as a family practitioner and obstetrician. He has seen the Respondent's patients on a number of occasions and the Respondent has seen Dr. Gatling's patients on a number of occasions since 1967. He is aware of the Respondent's current level of care for and treatment of his patients and based upon his experience with seeing patients who have previously seen Dr. Britton, his treatment of patients appears to be appropriate and proper and complies with the standard of care of a competent medical doctor as is accepted and practiced in northeast Florida. Dr. Gatling is aware of the Respondent's current probation and his past disputes with other physicians in Fernandina which resulted in those physicians voting him off the staff of the hospital there. Neither these problems nor the current charges have changed his opinion of the Respondent's competency. Raymond Michael Eichorn was director of the Nassau County Alcohol and Drug Abuse Council from November, 1975, to November, 1979. He became acquainted with the Respondent during that time because the Respondent was on the board of directors of that council until the council was disbanded two years ago. Dr. Britton was very active during those years in the council's work with the court and school systems in the area of drug education and combating drug abuse. He performed voluntary free physicals for alcoholics who were entering the antabuse treatment program. He performed this service despite the fact that he received no compensation and that the program provided him with no malpractice insurance coverage for this work. Since 1979, witness Eichorn has been employed in the personnel department of Container Corporation at its paper mill in Fernandina. He has continued to refer mill employees with alcohol problems to the Respondent for him to perform physicals for purposes of their entering the antabuse program. He has found the Respondent to be civic-minded and to continue to be interested in and working with the current drug abuse program in Nassau County. J. Chandler McLauchlan is, by training, a psychologist. He operates a cabinet making business and also works as a sculptor. He and Charles W. Howard and their families are patients of the Respondent. The Respondent, at all times, has proven to be a compassionate, conservative physician with regard to his care and prescription of drugs for these witnesses and their families. The Respondent frequently has charged substantially lower fees than other physicians for the same services and has generally shown himself to he a competent, caring physician, more concerned with patients' welfare than financial remuneration. He is strictly conservative regarding prescriptions of medicines and, in the words of Charles Howard, "he likes us to rough it."
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses of the Respondent, who testified in person, as well as the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That a final order be entered dismissing the Administrative Complaint in its entirety. DONE and ENTERED this 18th day of November, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1983. COPIES FURNISHED: Charlie L. Adams, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Stephen P. Smith, Esquire Smith and Smith, P.A. 2601 University Blvd., West Jacksonville, Florida 32217 Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues in these cases are whether Respondent violated Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes (2002), in DOAH Case No. 09-4678PL; Subsections 456.072(1)(l), 458.331(1)(m), and 458.331(1)(t), Florida Statutes (2003), in DOAH Case No. 09-4679PL; and Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes (2005), in DOAH Case No. 09-4680PL, and, if so, what discipline should be imposed.
Findings Of Fact At all times relating to the three Administrative Complaints at issue, Dr. Kachinas was a licensed medical doctor within the State of Florida, having been issued license number ME 65595. He is board-certified by the American Board of Obstetrics and Gynecology. DOAH CASE NO. 09-4678PL In 2002, Dr. Kachinas was working at several clinics that were owned by the same individual. He received payment from Sarasota Women’s Health Center and Tampa Women’s Health Center. His primary office was located in Sarasota, but he rotated through the offices located in Clearwater and Tampa. He was advised that he would be attending a patient in the Tampa office. One of the medications that he used in his method of sedating patients, Propofol, was not available in the Tampa office. He took a vial of the Propofol and took it to the Tampa office, holding the vial in his hand. While at the Tampa office, Dr. Kachinas drew the Propofol into a syringe. He did not have to use the Propofol for the patient. He placed the syringe filled with Propofol inside the sock that he was wearing. Dr. Kachinas transported the syringe back to the Tampa office. He used this method of transport so that the office manager in the Tampa office would not know that he was transporting the drug. When he got back to the Tampa office, he placed the filled syringe in a secure place. Propofol must be used within 24 hours after being drawn into a syringe. The next day it was decided that the drug would not be used on another patient, and Dr. Kachinas wasted the syringe filled with Propofol. At the clinics where Dr. Kachinas worked, there were no logs to keep track of the drugs, except for the drug Fentanyl. Dr. Kachinas acknowledged in a letter dated January 30, 2007, to the Department of Health that his method of transporting Propofol was “unorthodox.” In the same letter, Dr. Kachinas acknowledged that “a reasonable and prudent doctor would not generally transport medication in that manner, but foolishness seemed reasonable in that aberrant environment.” DOAH CASE NO. 09-4679PL On March 26, 2004, B.S. presented to Premier Institute for Women’s Health (Premier) for an elective termination of pregnancy. Dr. Kachinas was the physician who handled the procedure. Dr. Kachinas maintained records relating to B.S. at Premier. In 2004, Petitioner subpoenaed B.S.’s records from Dr. Kachinas’ office. Petitioner received a packet of documents, which purported to be B.S.’s medical records. In July 2006, Lori Jacobs, an employee of Premier, sent Petitioner another copy of the documents sent in 2004. Neither the records provided in 2004 nor the records provided in 2006 contain progress notes for B.S.’s treatment on March 26, 2004, and March 27, 2004. For the first time on November 5, 2009, Dr. Kachinas produced a three-page document, which he claimed was part of B.S.’s medical records that had been misplaced in B.S.’s insurance file. Two of the pages purported to be progress notes for March 26 and 27, 2004. The third page, which is also labeled as a progress note, is dated June 29, 2004, and appears to relate to insurance claims. The two pages relating to March 26 and 27 are on paper which is a different color from the progress note relating to insurance claims and the progress notes which were previously furnished in 2004 and 2006.1 Additionally, the progress notes for March 26 and 27, 2004, contain a break in each of the ruled lines on the sheets on both the right and left sides of the sheets. The insurance progress note and the progress notes furnished in 2004 and 2006 do not have such breaks in the ruled lines. Dr. Kachinas completed a Laminaria Insertion report documenting procedures done on March 26, 2004, and March 27, 2004. The March 26, 2004, report documents the insertion of Laminaria and administration of medications. The comment section of the report documents the removal of the Laminaria and administration of medications on March 27, 2004. The comment section continues to document the administration of medications and the taking of vital signs after the removal of the Laminaria and also the transfer of the patient to Doctors Hospital. The detail on the comment sections suggests that Dr. Kachinas was making his progress notes in the Laminaria Insertion report. The failure to produce the purported progress notes for March 26 and 27, 2004, until November 5, 2009; the difference in the color of the paper of the March 26 and 27, 2004, purported progress notes and the other progress notes in Dr. Kachinas’ records; the presence of breaks in the ruled lines on the March 26 and 27, 2004, purported progress reports, which do not appear on the other progress notes; and the detail of the comments on the Laminaria Insertion report support the conclusion that the progress notes submitted as Respondent’s Exhibit 1 were not done contemporaneously with the treatment given to B.S. on March 26 and 27, 2004, but were prepared for this proceeding. Thus, the progress notes for March 26 and 27, 2004, are not credited. Dr. Kachinas determined B.S.’s pregnancy to be at approximately 23½-to-24 weeks’ gestation, the last week of the second trimester. He confirmed by sonogram that the gestation period was 24 weeks. On March 26, 2004, Dr. Kachinas began the induction of labor ordering the insertion of ten Laminaria, which are osomotic cervical dilators which cause the cervix to open and allow easier emptying of the uterus. Dr. Kachinas’ records do not show that B.S.’s medical history was taken prior to the insertion of the Laminaria. However, Dr. Kachinas did take a medical history of B.S. at the time of her admission to Doctors Hospital, and the history is recorded in the medical records. Prior to the insertion of the Laminaria, Dr. Kachinas’ records do show that a limited physical examination of B.S. was done. The Laminaria Insertion report shows that B.S.’s baseline blood pressure, temperature, and pulse were taken and recorded. There was no expert testimony of what other physical examination should have been done. Dr. Kachinas injected the fetus with Digoxin, which is injected directly into the fetus to stop the fetal heartbeat, causing an Intrauterine Fetal Demise (IUFD). The injection of the Digoxin was not documented in B.S.’s medical records. B.S. was then released from Premier. On March 27, 2004, B.S. returned to Premier. Prior to removing the Laminaria, Dr. Kachinas did an ultrasound and determined that there was still fetal heart activity and fetal movements. Dr. Kachinas continued the labor induction procedure by removing the Laminaria and administering Cytotec and high dosages of Pitocin. When the Laminaria were removed, there was a rupture of membranes with a loss of essentially all the amniotic fluid. Sometime during the afternoon of March 27, 2004, Dr. Kachinas did another ultrasound and determined that there was no fetal heart activity. Based on the length of time from the Digoxin injection to the ultrasound showing no fetal heart activity, the loss of amniotic fluid, and the administering of medication to cause contractions, Dr. Kachinas determined that the Digoxin injection was not the cause of death. On March 27, 2004, at approximately 6:30 p.m., Dr. Kachinas transferred B.S. to Doctors Hospital and had her admitted to the hospital for failure to progress with the induction of labor procedure. While at the hospital, B.S. continued to experience pain. On March 28, 2004, Dr. Kachinas performed the following procedures on B.S.: mini-laparotomy, hysterotomy, removal of products of conception, and a modified Pomeroy bilateral tubal ligation. In his description of the procedures, he stated that the fetal demise was at least of 48 hours duration. However, Dr. Kachinas’ records do not reflect the time of the fetal demise. Jorge Gomez, M.D., Petitioner’s expert witness, credibly testified that a physician is required to document the time of the fetal demise. In the hospital records following B.S.’s surgery, Dr. Kachinas listed the post-operative diagnosis as a failure to induce labor, an intrauterine fetal demise, a thin umbilical cord, and asymmetric intrauterine growth retardation, a condition in which the fetus is smaller than expected for the number of weeks of pregnancy. An autopsy was performed on the fetus. A surgical pathology report was also issued. The pathology report showed mild infarcts on the maternal side. On the fetal death certificate, Dr. Kachinas listed the immediate causes for the IUFD as a possible cord incident and multiple placental infarctions. Dr. Kachinas did not document the elective termination or the Digoxin injection on the fetal death certificate. Dr. Gomez disagrees with the reasons for IUFD given on the death certificate. His credible reading of the pathology report does not indicate that the infarcts were severe enough to have contributed to the fetal demise. His credible reading of the pathology report does not indicate that there was any evidence of a cord incident. Dr. Gomez is of the opinion that the cause of death should have been listed as elective termination. Dr. Gomez’ opinion is credited. However, Dr. Gomez did not give an opinion on whether the fetal demise was caused by the injection of Digoxin. DOAH CASE NO. 09-4680PL On December 13, 2005, K.M. was seen by Walter J. Morales, M.D., at Florida Perinatal Associates, which specializes in internal fetal medicine. Dr. Morales performed an ultrasound on K.M., who was pregnant with twins as a result of in vitro fertilization. The ultrasound revealed that the twins were fraternal, meaning that each twin had a separate placenta and a separate sac. One of the twins, Twin A, had an anomaly called a cystic hygroma, which results from an obstruction, causing the lymphatic fluid, which normally drains into the juglar vein, to accumulate in the neck area. Approximately 50 percent of the fetuses which have this anomaly in the first trimester also have a chromosomal anomaly, such as Down syndrome. The decision was made to have K.M. return to Florida Perinatal Associates in three weeks for further evaluation. On January 3, 2006, Edgard Ramos-Santos, M.D., a partner of Dr. Morales, performed another ultrasound on K.M. Dr. Ramos-Santos found that Twin A, a male, had a cystic hydroma, a thickening of the nuchal fold2, and shortened femur and humerus. These findings are soft markers for abnormal chromosomes. The ultrasound also revealed a possible heart defect. At the time of the ultrasound, Twin A was cephalic bottom, meaning that Twin A was positioned lowest in the uterus. Dr. Ramos-Santos also performed an amniocentesis on Twin A on the same date as the ultrasound. The amniocentesis showed that Twin A had an abnormal chromosome pattern compatible with trisomy 21 or Down syndrome. Both ultrasounds showed that Twin B, a female, appeared to be normal. At the request of K.M., no amniocentesis was performed on Twin B on January 3, 2006. At the time of the ultrasound performed on January 3, 2006, the presentation of Twin B was cephalic right. The findings of the January 3, 2006, ultrasound were discussed with K.M. and her husband. On January 9, 2006, Dr. Ramos-Santos discussed the results of the amniocentesis with K.M.’s husband. It was decided that a selective feticide would be performed on Twin A. Selective feticide is a procedure in which a solution of potassium hydroxide is injected into the fetus’ heart to make the heart stop beating. K.M. was referred to Dr. Kachinas at Premier for the selective feticide. On January 10, 2006, Roberta Bruce, a nurse at Florida Perinatal Associates, sent to Premier by facsimile transmission the January 3, 2006, ultrasound report for K.M. and K.M.’s insurance information. The cover page for the facsimile transmission included a note from Ms. Bruce, which stated: “* FYI Fetus have different gender. The male is the affected one.” The standard of care as specified in Section 766.102, Florida Statutes (2005), requires a physician performing a selective feticide to correctly identify the affected fetus. Dr. Kachinas did not correctly identify Twin A prior to performing the selective feticide and performed the procedure on Twin B, the normal fetus. Dr. Kachinas performed an ultrasound on K.M., but failed to identify the correct position of Twin A in relation to K.M. The ultrasound done on January 3, 2006, by Dr. Ramos-Santos showed that Twin A was located at the bottom and Twin B was located to the right of K.M. In his progress notes, Dr. Kachinas placed Twin A on the right and Twin B on the left. Although it is possible for twins to shift positions, it is not probable that the twins shifted from left to right. Dr. Kachinas performed an ultrasound, but failed to identify that Twin A was the fetus with multiple anomalies. Although the standard of care required Dr. Kachinas to do a Level 2 ultrasound evaluation, a Level 1 ultrasound evaluation would have identified the cystic hygroma, the shortened long bones, and the sex of Twin A. Dr. Kachinas failed to perform an adequate ultrasound evaluation by failing to identify the anomalies and the gender of Twin A. Dr. Kachinas’ notes do not show whether Twin A or Twin B had anomalies. His notes did not identify the sex of each of the twins. His notes did not document the attempts that Dr. Kachinas made to identify the anomalies such as a recording of the length of the long bones or any examination made to identify the sex of each of the twins. On January 24, 2006, K.M. returned to Florida Perinatal Associates for another consultation. Dr. Morales performed another ultrasound, which revealed that Twin A, who had the anomalies, was still viable. The ultrasound revealed the continued presence of a cystic hygroma, the thickening of the nuchal fold, shortened extremities, and a congenital heart defect. The ultrasound also showed that the viable twin was male. The presentation of Twin A was shown by the ultrasound as cephalic bottom.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED as to DOAH Case No. 09-4678PL that a final order be entered finding that Dr. Kachinas violated Subsection 458.331(1)(t), Florida Statutes (2002), by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent physician as being acceptable under similar conditions and circumstances; finding that Dr. Kachinas did not violate Subsection 458.331(1)(m), Florida Statutes (2002); imposing an administrative fine of $2,500; and placing Dr. Kachinas on probation for one year. Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED as to DOAH Case No. 09-4679PL that a final order be entered finding that Dr. Kachinas did not violate Subsections 456.072(1)(l) and 458.331(1)(t), Florida Statutes (2003); finding that Dr. Kachinas violated Subsection 458.331(1)(m), Florida Statutes (2003); imposing an administrative fine of $1,000; and placing Dr. Kachinas on probation for one year. Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED as to DOAH Case No. 09-4680PL that a final order be entered finding that Dr. Kachinas violated Subsection 458.331(1)(t), Florida Statutes (2005), by committing gross medical malpractice; finding that Dr. Kachinas violated Subsection 458.331(1)(m), Florida Statutes (2005); imposing an administrative fine of $2,000 and placing him on probation for one year for the violation of Subsection 458.331(1)(m), Florida Statutes (2005); and revoking his license for the violation of Subsection 458.331(1)(t), Florida Statutes (2005). DONE AND ENTERED this 26th day of January, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2010.
The Issue Whether Respondent failed to timely file its application for the renewal of its abortion clinic license, as alleged in the Administrative Complaint. If so, may the Agency for Health Care Administration (Agency) fine Respondent for failing to timely file its renewal application. If the Agency is authorized to impose such a fine, should it exercise such authority. If so, what is the amount of the fine it should impose.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated an abortion clinic located in Dade County, Florida, at 3250 South Dixie Highway, Coconut Grove, Miami, Florida (Coconut Grove Clinic). License number 693 constituted authorization from the Agency to Respondent to operate the Coconut Grove Clinic for the one-year period specified in the license. License number 693 had an effective date of March 22, 1995, and an expiration date of March 21, 1996. On or about December 22, 1995, the Agency sent Respondent the following letter: In reviewing our records, we note that the facility's abortion clinic license expires on 03/21/96. We are enclosing a copy of Form 3130-1000, Licensure Application, which should be completed and returned to this office along with the appropriate licensure fee of $250.00, pursuant to Rule 59A-9.020 Florida Administrative Code, made payable to the Agency for Health Care Administration. Incorrect or incomplete information will not be accepted, and the application will be returned. The application must be received on or before 01-21-96, sixty (60) days prior to the expiration of the current license to comply with section 390.016(1), Florida Statutes. Your attention to this request will facilitate processing your renewal license. The letter was delivered to Respondent on December 28, 1995. The General Manager of the Coconut Grove Clinic, Carmen Penaloza, filled out the Licensure Application and gave it to Respondent's Chief Operating Officer, Dr. Vladimir Rosenthal, for his signature. After Dr. Rosenthal affixed his signature to the Licensure Application, he returned the document to Penaloza for mailing to the Agency. The Licensure Application was completed and signed prior to January 21, 1996. Some time after January 21, 1996, the Agency notified Respondent that it had no record of having received a completed and signed Licensure Application from Respondent.1 Accordingly, Penaloza filled out and Dr. Rosenthal signed another Licensure Application. This completed and signed Licensure Application was received by the Agency on April 25, 1996. On or about May 21, 1996, the Agency issued Respondent License number 0786, authorizing Respondent to operate the Coconut Grove Clinic for the one-year period beginning March 22, 1996, and ending March 21, 1997. On June 3, 1996, the Department issued an Administrative Complaint announcing its intention to fine Respondent $1,000.00 for filing its application to renew its license to operate the Coconut Grove Clinic "ninety-five (95) days late."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency issue a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 10th day of October, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 1997.
Findings Of Fact Pauline J. Brown Larach, Respondent, is licensed by the Board of Nursing as a Registered Nurse, license No. 60268-2 and was so licensed at all times here relevant. Respondent was employed by Hollywood Memorial Hospital during the period July-October, 1981, in the Intensive Care Unit (ICU). At the time of her employment Respondent represented that she was qualified to work in the ICU. Hollywood Memorial Hospital sends all nurses employed through an orientation program of approximately one week before assigning them to a particular duty. Respondent went through this orientation program before she was assigned to ICU. Respondent was assigned the shift under the direct supervision of Shirley Scott, who was assistant head nurse of the ICU and was supervisor on the shift to which Respondent was assigned. Respondent's work was unsatisfactory and she was counselled several times by Scott. Specifically, Respondent was counselled about the manner in which she maintained her nurse's notes, her inability to schedule her time and duties, her inability to concentrate on a particular problem, her refusal to seek assistance when needed, and a penchant for ignoring serious problems. The following incidents gave rise to the concern about the type of care provided by Respondent to patients in the ICU: On about October 21, 1981, a neurological patient assigned to Respondent was on the drug Nipride to keep the blood pressure low. The patient had suffered intracranial hemorrhaging. The Nepride, which is considered a dangerous drug unless its administration is carefully monitored, was administered to this patient in much less than the time it should have taken for the Nipride to be infused and the patient's blood pressure dropped very low. The ICU supervising nurse discovered the patient in a severely hypertensive state and Respondent had placed the patient in a position with the head below the feet. This attitude would be correct for most patients whose blood pressure is low but was contraindicated for a neuro-patient or a patient with the history of intracranial bleeding. Although the head nurse's intervention possibly avoided further intracranial bleeding, no entry of blood pressure drop or of the emergency was placed in the nurse's notes kept by Respondent. On or about August, 1981, Respondent was observed by her shift supervisor (Scott) hiding her nurse's notes under a patient's mattress so Ms. Scott could not read them. During a "code" situation Respondent offered the doctor a cookie while he was resuscitating the patient. Respondent's nurse's notes are virtually illegible and replete with trivia and inappropriate items while failing to include pertinent information. Specifically, these nurse's notes were also found deficient in that Respondent did not chart complete systems before going to another system, but instead jumped around from items in one system to items in another and included trivia while omitting essential information about the patient. On one occasion when a patient was transferred from the emergency room to the ICU as a patient to be tended to by Respondent, who had accepted the patient by phone from the emergency room, upon arrival the patient was in dire distress and Respondent left the room. Another nurse declared a "code" emergency on this patient, but Respondent did not return to the room until after the "code" situation was ended. During a "code" situation involving one of Respondent's patients, it was discovered that she had incorrectly computed the infusion rate for the drug Dopamine, which drug is intended to raise blood pressure. Respondent's evaluations (Exhibit 1), which were prepared three months after Respondent commenced work at Hollywood Memorial Hospital, evaluated Respondent as unsatisfactory and far below the minimal standards required for acceptable nursing practices. This report followed numerous conferences with Respondent during this three-month period when the areas in which she was unsatisfactory were pointed out to her. All of the witnesses who worked with and observed Respondent in the ICU concurred that Respondent's professional competency, as observed by them, was far below minimal acceptable standards and that they would be unwilling to have Respondent assigned under them in an ICU. All expert witnesses opined that in the manner in which Respondent maintained nurse's notes, organized her work, provided care to patients, and, specifically, to react properly in an emergency situation, Respondent's performance as a nurse was far below minimal acceptable standards. At the expiration of Respondent's three-month period during which her evaluation was unsatisfactory, a conference was held between Respondent and hospital staff. At this meeting the evaluations were presented to Respondent and she was given the alternatives of voluntary resignation, transfer to a less critical area of the hospital, or termination. Respondent opted for voluntary resignation.
The Issue Whether Respondent, Doctor's Office for Women, Inc., d/b/a Today's Women Medical Center (Respondent), failed to maintain medical records as alleged in the Administrative Complaint filed with DOAH on March 28, 2012.
Findings Of Fact At all times relevant to this proceeding, Respondent has been licensed as an abortion clinic authorized to perform first and second trimester abortions. The facility at issue in this proceeding is located in Miami-Dade County, Florida. Respondent is required to comply with the following provisions of Florida Administrative Code Rule 59A-9.031: A permanent individual clinical record shall be kept on each clinic patient. Clinical records shall be complete, accurately documented, and systematically organized to facilitate storage and retrieval. Clinical records shall be complete, accurately documented, and systematically organized to facilitate storage and retrieval. Clinical records involving second trimester abortion procedures shall be kept confidential and secure. Operative reports signed by the physician performing the second trimester abortion shall be recorded in the clinical record immediately following the procedure or that an operative progress note is entered in the clinical record to provide pertinent information. Clinical records shall be kept on file for a minimum of five years from the date of the last entry. At the times relevant to this proceeding, Respondent used a consent form which, preceding the line for the patient to date and sign the form, states as follows: I, , voluntarily authorize Doctor's Office for Women, [Dr. Rosenthal], who is an independent provider and will have complete control over this procedure, follow up and any and all treatments and whomoever he may designate as his assistants, to perform upon me an elective abortion. I fully understand that the purpose of the procedure is to terminate my pregnancy, and I affirm this is to be my personal choice in the light of the alternative of continuing the pregnancy to full term. I further request and authorize him to do whatever he deems advisable if any unforeseen conditions arise in the course of the abortion that call, in his judgment, for procedures in addition to or different from those contemplated. I will fully and completely disclose my medical history, including allergies, blood conditions, prior medications or drugs taken, and reactions I had to anesthesia, medicines of [sic] drugs, I consume to my physician relying on my disclosure to be complete. I consent to the administration of anesthesia as may be deemed necessary or advisable by my physician. I understand that local anesthesia do not eliminate all pain completely and IV sedation anesthesia (Versed, Valium, Demerol) will not put me to sleep and no guarantee to the contrary have been made to me. The nature and purpose of an abortion, the procedures, the risks involved, the emotional distress, and the possibility of complications have been fully explained to me. I realize there are inherent risks of minor and major complications which may occur in this and all surgical procedures without the fault of the physician. No guarantee has been made to me. The complications include, but are not limited to: allergic reaction to the sedative or anesthesia; infection; excessive bleeding; the need for a second D&C to complete the abortion; perforation of the uterus; laceration of the cervix; hysterectomy - surgically removing the pregnancy through the abdomen; removal of the uterus as treatment of a complication (hysterectomy), also, one study indicates the possibility of breast cancer due to abortions even though these studies are not conclusive, we still recommend annual breast examinations, etc. [sic]. I release the doctors and Doctor's Office for Women and any corporation which operates this facility from any liability resulting from the above mentioned [sic] or any other complications. I further realize that I may need to be hospitalized at my own expense for treatment of such complications. I realize that such conditions can be caused by my own condition or conduct. I will accept hospitalization, if required by the doctors for any complications arising from this procedure. I understand that my complication requiring hospitalization, as a result of the termination will not be covered financially by the Doctor's Office for Women, or corporation which may operate this facility or the doctors. I understand that any questions I have will be answered before leaving the facility. If I have any questions or complications after leaving, I agree to call the Doctor's Office at this number: [xxx- xxx-xxxx]. I understand that I must return to the office for a two-week post-termination evaluation (free). I also acknowledge that if I do not return for this evaluation, I have not completed my medical care and release the Doctor's Office for Women and physicians from any liability resulting from my termination. The undersigned hereby expressly waives and releases for themselves, heirs or representatives any claims or demand which they may have of any nature, kind or description against [Dr. Rosenthal] and/or his/her assistant/s and Doctor's Office for Women, and any corporation which operates this facility and the undersigned do [sic] specifically assume any and all responsibility for the operation, acknowledging that the same is done at their [sic] request for their benefits [sic]. I certify that (if married) I have notified my husband of my intention to obtain a termination of pregnancy and I have given him the opportunity to consult with me concerning this decision. I CERTIFY THAT I HAVE READ AND FULLY UNDERSTAND THE ABOVE CONSENT TO AN ABORTION THAT THE EXPLANTAIONS THEREIN REFERRED TO WERE MADE [sic]. I GIVE THIS PERMISSION VOLUNTARILY AND OF MY OWN FREE WILL, I FURTHER REPRESENT AND WARRANT THAT I HAVE FULL LEGAL AUTHORITY TO GIVE THIS PERMISSION. On July 18, 2011, the Patient executed the foregoing consent form, and Dr. Rosenthal performed an abortion on the Patient. On September 20, 2011, Ms. Render inspected the Patient's medical records as maintained by Respondent as part of a survey of the facility. Respondent's records for the Patient reflect the events of July 18, 2011. The Patient's records reflected that the Patient was seen at an emergency room on a date between July 18 and September 13, 2011. The Patient's records did not reflect the date of that visit to the emergency room. The Patient's records reflect that the Patient had gone to the emergency room due to excessive bleeding for a sustained period of time following the abortion on July 18, 2011. The Patient's records reflect that all findings at the emergency room were "WNL" (within normal limits), but the records have no further information as to the emergency room visit. On September 13, 2011, the Patient returned to Respondent's facility, at which time Dr. Rosenthal performed on the Patient a procedure generally referred to as a D&C (dilation and curettage). The Patient did not sign a separate consent form for the second procedure. Ms. Randolph's testimony, and the consent form itself, established that the consent form authorized emergency follow-up care for the abortion, but it was insufficient to authorize the D&C some eight weeks after the abortion. Petitioner established that Respondent should have obtained written consent for the second procedure and should have maintained that consent as part of the Patient's records.1/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order finding Respondent guilty of failing to maintain a consent form for the second procedure, but dismissing all other charges against A Doctor's Office for Women, Incorporated, d/b/a Today's Women Medical Center. It is further recommended that the final order impose an administrative fine in the amount of $1,000.00 against A Doctor's Office for Women, Incorporated, d/b/a Today's Women Medical Center. DONE AND ENTERED this 31st day of July, 2012, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2012.
The Issue Whether respondent terminated petitioner's employment on account of her age, sex or national origin, in violation of the Human Rights Act of 1977?
Findings Of Fact A registered nurse since 1949, petitioner Bessie J. Armstrong, who was born October 1, 1923, moved to Florida after she retired from the United States Air Force with the rank of captain. The record does not reveal her national origin. Ms. Armstrong had worked as an emergency room nurse, a coronary care nurse, and a nursing supervisor in three large hospitals before she began working for respondent, John Knox Village of Central Florida, Inc., which operates a retirement community with 492 independent living units, 18 assisted living units and a 120-bed (up from 60 beds before 1986) skilled nursing facility, called the "Med-Center." Ms. Armstrong worked the graveyard shift at the Med-Center from October 11 or 12, 1981, until her termination. Andrea Naumovitz, who, as director of nursing at the Med-Center until January of 1986, supervised petitioner Armstrong, gave her consistently good evaluations, Petitioner's Exhibit No. 1, and spoke highly of her abilities and performance. While employed at the Med-Center, Ms. Armstrong went in Thursday mornings as a volunteer to teach residents crafts, using materials she purchased with her own money. In fact, she was coloring Easter baskets during one such session when her husband suffered his fatal heart attack. In September of 1986, Judith Osborne, who succeeded Ms. Naumovitz as director of nursing on January 9, 1986, received complaints, from nursing aides Ms. Armstrong supervised, to the effect that she left distribution of suppositories to them, that she had herself passed medicine out before the hour which residents' doctors had specified, that, on two occasions, she had fallen asleep at work, and that she had once banished a noisy resident to the shower room. After summoning Ms. Armstrong and confronting her with these accusations, Ms. Osborne decided, rightly or wrongly, that at least some of the allegations against Ms. Armstrong were true. Nurse's notes for September 13, 1985, signed by petitioner, reported that a resident had been "[p]ut in shower room for the night." Respondent's Exhibit No. 1. On September 24 or 25, 1986, she terminated Ms. Armstrong's employment. Although in theory, the nursing home administrator or respondent's executive director might have reversed the decision to terminate petitioner's employment, in practice the decision was Ms. Osborne's to make. As far as the evidence shows, neither respondent nor Ms. Osborne has any policy to terminate or harass employees on account of their age, sex or national origin. Because of a critical shortage of nurses in the geographical area, sexagenarians not uncommonly work as floor nurses at the Med Center. The nursing staff is overwhelmingly, if not exclusively, female. Respondent's Exhibit Nos. 4 and 5. On July 29, 1987, eleven of respondent's approximately 240 employees were older than petitioner. Respondent's Exhibit No. 5. On the same date, 54 employees had worked long enough to be eligible for three weeks' annual vacation. Reversing the determination of the claims adjudicator dated October 24, 1986, Appeals Referee Mildred C. Anderson concluded in a decision dated November 26, 1986, that Ms. Armstrong had not been guilty of "misconduct connected with work" within the contemplation of the unemployment compensation law. Docket No. 86-25342U.
The Issue This is a license discipline case in which a medical doctor is charged by administrative complaint with five counts of violations of paragraphs (h), (k), (m), and (t) of Section 458.331(1), Florida Statutes (1988 Supp.).
Findings Of Fact Findings based on parties' stipulations The Respondent, Vladimir Rosenthal, M.D., (hereinafter "Respondent" or "Dr. Rosenthal") is, and at all material times was, a medical doctor, license number ME 0045574, who practiced at 1320 South Dixie Highway, Coral Gables, Florida. Dr. Rosenthal at all material times owned the business operating as Today's Women Medical Center located at 1320 South Dixie Highway, Suite 1070, Coral Gables, Florida. On or about November 3, 1988, Dr. Rosenthal performed an elective abortion on patient B.F. under general anesthesia. On or about November 3, 1988, Dr. Rosenthal ordered a pathology report of the products of the procedure performed on patient B.F. The pathology report regarding patient B.F. bears the date November 8, 1988. The pathology report revealed no chorionic villi and recommended a "close follow-up" of the patient. Missed abortion and continued pregnancy is a recognized risk of early (first trimester) abortions. Patient B.F. suffered no harm as a result of the November 3, 1988, procedure. On or about December 7, 1988, patient B.F. presented to Dr. Rosenthal. On or about December 7, 1988, patient B.F.'s uterus was examined and found to be enlarged. Subsequently, a repeat pregnancy test was performed on patient B.F., which revealed she was still pregnant. On or about December 10, 1988, Dr. Rosenthal performed a second abortion on patient B.F. with positive results. Patient B.F. suffered no harm as a result of the December 10, 1988, procedure. Findings based on evidence at hearing The Respondent specializes in the area of gynecology, but does not practice obstetrics. In the course of his medical practice he regularly performs first trimester abortions. The Respondent is very experienced in the performance of first trimester abortions. In recent years he has averaged five thousand (5,000) such procedures per year. Patient B.F. normally goes to Dr. Nahid Mansoori for routine treatment of gynecological matters. Patient B.F. was seen by Dr. Mansoori on October 28, 1988, with a history of a missed menstrual period. Dr. Mansoori examined the patient and observed that the patient had an enlarged uterus and appeared to be 5 or 6 weeks pregnant. The patient expressed an interest in having an abortion. Because Dr. Mansoori does not perform abortions, she referred patient B.F. to the Respondent. Dr. Mansoori also referred patient B.F. to Dr. Martin S. Goldstein for an ultrasound examination. Dr. Mansoori referred patients to the Respondent on a regular basis. She did so for several reasons, including the facts that (a) patients she referred to the Respondent uniformly reported back to her that they were pleased or satisfied with the services they received from the Respondent, (b) none of her patients had complained about their treatment by the Respondent, and (c) none of the patients she had referred to the Respondent had experienced any infection or problems. On October 31, 1988, Dr. Martin S. Goldstein performed an ultrasound examination of patient B.F. On the basis of that ultrasound examination, Dr. Goldstein concluded and reported that the "gestational age" of patient B.F.'s pregnancy was 6 weeks, 0 days. Dr. Goldstein also concluded and reported that patient B.F. had an intrauterine pregnancy, thus ruling out an ectopic pregnancy. On November 3, 1988, patient B.F. went to the Respondent's clinic at 1320 South Dixie Highway for the purpose of having an abortion. The Respondent remembers this particular patient because she was a medical professional and her husband was an attorney. Because of their respective professions, the Respondent was extra careful to explain everything involved in the process to both B.F. and her husband. He especially explained to both of them the importance of a post-abortion follow up examination at either the Respondent's clinic or at the office of the patient's regular gynecologist. Patient B.F. said that she would return to Dr. Mansoori, her regular gynecologist, for the follow up examination. When patient B.F. went to the Respondent's clinic on November 3, 1988, she told the Respondent that she had had an ultrasound examination. The Respondent called Dr. Mansoori and Dr. Mansoori told him that the results of the ultrasound examination indicated a "gestational age" 1/ of six weeks and that the ultrasound examination confirmed an intrauterine pregnancy. Dr. Mansoori also mentioned that her clinical examination of patient B.F. indicated a "gestational age" of five or six weeks. Upon manual examination of the patient, the Respondent concluded, and noted in the patient's medical record, that patient B.F.'s uterus was enlarged to a size consistent with a "gestational age" of five weeks. Later that same day, the Respondent performed an abortion procedure on patient B.F. Following the abortion procedure, patient B.F. took antibiotic medication for several days, which medication had been prescribed and/or dispensed by the Respondent. The Respondent ordered a pathology report of the products of the abortion procedure performed on patient B.F. on November 3, 1988. The Respondent does not order pathology reports on all of his patients, but he did so in this case because it was an early pregnancy, and also because he wanted to take extra care in view of the professions of B.F. and her husband. The pathology laboratory is supposed to call Dr. Rosenthal on all "abnormal" reports. Sometimes the laboratory fails to call and sometimes the laboratory fails to send a written report. The Respondent has established office procedures for handling laboratory reports to try to prevent any reports from going astray and to identify those that do go astray so that follow up activity may be taken. Pursuant to the Respondent's established office procedures, all laboratory reports received at the clinic must be seen and signed by the Respondent before being placed in a patient chart. When a patient returns for her follow up visit, the laboratory report is reviewed during the course of that visit. If a laboratory examination has been ordered, but there is no laboratory report in the chart at the time of the follow up visit, the laboratory is called by telephone. The Respondent usually makes these calls himself. Pursuant to the Respondent's established office procedures, missing laboratory reports for patients who do not return for follow up visits or who return to their regular physicians for follow up visits are picked up when monthly reports to the Department of Health and Rehabilitative Services are compiled and submitted. In order to complete these monthly reports, a log is kept of every patient who has an abortion procedure performed at the Respondent's clinic. The information kept in the log and reported to DHRS includes: the date of surgery, the estimated "gestational age" of the patient, whether a pathology report was ordered, the results of the pathology report, and the date the pathology report was received by the clinic. Such forms were in use at the time B.F. was a patient at the Respondent's clinic. If any pathology reports "fell through the cracks," they were picked up each month when the reports were prepared. The reports are usually prepared on the ninth or tenth of each month. The implementation of these office procedures for the purpose of following up on laboratory reports is sufficient to comply with applicable standards of medical care. The pathology laboratory prepared a report regarding the material removed from patient B.F. during the November 3, 1988, abortion procedure. The written laboratory report was dated November 8, 1988. The most significant finding noted on the laboratory report was "no chorionic villi." Because of this finding, the laboratory report also stated: "close follow up of patient is recommended." The significance of the notation of "no chorionic villi" is that it indicates that the pathology laboratory examination did not reveal evidence of any fetal tissue or other "products of conception." The need for close follow up in this instance is because the absence of chorionic villi can be due to a number of different things. 2/ On November 18, 1988, patient B.F. went to Dr. Mansoori's office for a post-abortion follow up visit. At that time the patient was complaining of a vaginal "yeast" infection, a not uncommon occurrence following a course of antibiotic medication. Dr. Mansoori treated the patient's "yeast" infection with a prescription for Monistat Vaginal Cream. Dr. Mansoori's medical records for that day also include the following notations regarding the patient B.F.: "Had abortion by Today's Woman. Post AB check up O.K." 3/ Dr. Mansoori told patient B.F. to get back in touch with her if the patient missed her next menstrual period. On December 6, 1988, patient B.F. called Dr. Mansoori to report that she had missed her menstrual period. Dr. Mansoori advised her to return to the Respondent and patient B.F. agreed to do so. Dr. Mansoori called the Respondent to advise him that patient B.F. would be returning because she had missed her menstrual period. Dr. Mansoori also arranged for another ultrasound examination to be performed on patient B.F. by Dr. Goldstein. On December 7, 1988, patient B.F. returned to the Respondent's clinic where she was seen and examined by the Respondent. Examination revealed that the patient's uterus was mildly enlarged. A pregnancy test administered that day indicated that the patient was still pregnant. On December 7, 1988, the Respondent realized that he did not have a report from the pathology laboratory, so he called the laboratory and was advised that the most significant finding of the pathology report was "no chorionic villi." The substance of the telephone conversation with the pathology laboratory was noted in the patient's medical record. When he made the telephone call to the pathology laboratory on December 7, 1988, the Respondent had not received the laboratory's written report dated November 8, 1988, 4/ nor had he been otherwise advised of the results of the pathology study of the materials removed during the November 3, 1988, abortion procedure. On December 8, 1988, Dr. Martin S. Goldstein performed a second ultrasound examination of patient B.F. On the basis of the second ultrasound examination, Dr. Goldstein concluded and reported that the "gestational age" of patient B.F.'s pregnancy was 11 weeks, 6 days. This second gestational age was three days older than one would have predicted based on the October 31, 1988, ultrasound examination. In both of the ultrasound examinations of patient B.F., Dr. Goldstein relied upon the "crown rump" measurement as the basis for his estimate of "gestational age." On December 10, 1988, when patient B.F. returned to the Respondent's office for the second abortion procedure, the Respondent conducted a clinical examination of the patient before commencing the procedure. On the basis of his own clinical examination of the patient, the Respondent was of the opinion that patient B.F.'s "gestational age" was 8 or 9 weeks. He reported this on the "Physical Exam" portion of the patient's chart by writing "8-9" beside the entry for uterus. After the patient was anesthetized and the Respondent could examine her while she was more relaxed, the Respondent further examined the patient's uterus and was of the opinion that its size corresponded to a "gestational age" of 8 weeks. He noted this opinion in the "Operative Notes" portion of the patient's chart. It was, and continues to be, the Respondent's opinion that his December 10, 1988, estimates of the patient's "gestational age" were correct. Although he was aware of Dr. Goldstein's ultrasound examination which reported a somewhat older "gestational age," the Respondent had confidence in his own clinical findings and relied on his own clinical findings, which he duly recorded in the patient's medical chart. Relying on his own estimate of "gestational age," the Respondent performed the abortion procedure on December 10, 1988, on patient B.F. with a number eight suction tip. The abortion procedure was accomplished successfully and without any difficulty or complication. A report from a pathology laboratory confirmed that the December 10, 1988, abortion procedure was successful. 5/ The prevailing standards of acceptable care do not require a physician to order a pathology examination of the material removed during the course of a routine first trimester abortion procedure. In an abortion procedure involving a very early pregnancy, a physician may wish to order such a pathology examination in order to be more certain as to the results of the procedure, but it is a matter of physician preference, rather than a requirement. A physician who orders a pathology examination of the material removed during a first trimester abortion procedure has an affirmative duty to follow up on the examination and find out the results of the examination within a reasonable period of time. 6/ The Respondent's follow up on December 7, 1988, on the results of the pathology examination of the material removed from patient B.F. during the November 3, 1988, procedure was reasonable under the circumstances. 7/ The Respondent's delay until December 7, 1988, before following up on that pathology examination was not a departure from applicable standards of medical care. 8/ The Respondent's medical records for patient B.F. justify the course of treatment of the patient. The use of ultrasound examination as a method of estimating "gestational age" is not an exact science and cannot be relied upon to determine an exact "gestational age." As a general rule, "gestational age" estimates derived by means of ultrasound examination are accurate within a margin of error of plus or minus two weeks. 9/ Clinical or manual examination of a patient as a method of estimating "gestational age" is also not an exact science and cannot be relied upon to determine an exact "gestational age." As a general rule, "gestational age" estimates derived by means of clinical or manual examination of a patient are accurate within a margin of error of plus or minus two weeks, if done by an experienced physician. It is not a departure from applicable standards of medical care for an estimate of "gestational age" to vary from the actual "gestational age" by as much as plus or minus two weeks when the estimate is based on the physician's clinical or manual examination of the patient. A reasonably prudent physician who is experienced in clinical or manual examination of patients for the purpose of estimating "gestational age" should rely on his own findings, even if those findings appear to conflict with findings based on ultrasound examination. Such a physician should also note his own findings on the patient's medical records, regardless of what is reported by the ultrasound. There is no great discrepancy between the estimate of "gestational age" reported in Dr. Goldstein's ultrasound report of December 8, 1988, and the Respondent's estimate of "gestational age" on December 10, 1988. The Respondent's notations in patient B.F.'s medical records on December 10, 1988, to the effect that her pregnancy was of a "gestational age" of eight weeks was an honest notation of the Respondent's clinical judgment and was not a statement the Respondent knew to be false. 10/ Similarly, those notations were not deceptive, untrue, or fraudulent representations. On or about August 3, 1989, the Respondent's clinic, known as Today's Woman Medical Center, located at Suite 1070, 1320 South Dixie Highway, Coral Gables, Florida, was inspected by an employee of the Office of Licensure and Certification of the Department of Health and Rehabilitative Services. 11/ At the time of that inspection the Respondent was not present at the clinic, there were no procedures being performed at the clinic, and there were no patients at the clinic.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be entered in this case DISMISSING all charges against the Respondent, Vladimir Rosenthal, M.D. DONE AND ENTERED this 2nd day of October, 1992, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1992.
