The Issue This is a license discipline case in which the Petitioner, by means of a four-count Administrative Complaint, seeks to take disciplinary action against the Respondent on the basis of his alleged violation of subsections (m), (q), (t), and (nn) of Section 458.331(1), Florida Statutes (2002).
Findings Of Fact The Respondent, Mark K. Sachs, M.D., is presently a physician licensed to practice medicine in the State of Florida, and he has been so licensed at all times material to this proceeding. His license number is ME 49598. His address of record is 11440 North Kendall Drive, Suite 206, Miami, Florida 33176. A legend drug is a drug for which a prescription is required. At all times material to this proceeding, Phentermine has been a legend drug which has been approved by the FDA for the treatment of obesity. It is not safe for a person to self- prescribe Phentermine. Phentermine works through the central nervous system as an appetite suppressant. Phentermine has numerous side effects including tachycardia, a fast heart rate; palpitations; diarrhea; altered sensorium; agitation; restlessness; sleep disorder; and/or tremors. Phentermine is contraindicated for patients who have high-blood pressure; patients with underlying cardiovascular diseases, including peripheral vascular disease; patients suffering from hyperthyroidism; and patients with glaucoma. Prior to prescribing Phentermine, a reasonably prudent physician would perform a routine physical examination of the patient. Such an examination would include at least the following: obtaining the patient’s height and weight; confirming the patient’s BMI (Body Mass Index); checking the patient’s blood pressure; looking into the patient's eyes; listening to the patient’s carotid arteries; palpating the patient’s thyroid; and osculating the patient’s heart for any abnormal heart sounds. A reasonably prudent physician would also include an examination of the patient's pulse, feet, and abdomen, as well as a basic neurological exam. When prescribing Phentermine, a reasonably prudent physician would also develop and document a treatment plan for the patient. Such a plan would include follow-up with the patient to monitor any possible side effects or any possible complications. At some time on or prior to August 7, 2002, Patient H.Y. filled out a web site order form and questionnaire. The medication ordered by Patient H. Y. was described on the order form as "Phentermine (yellow) 30mg - 90 caps." At the bottom of the order form there was a statement to the effect that Patient H.Y.'s credit card would be billed by Impact Health Care, Inc. The order form had a number of boxes in which the person placing the order was asked to provide personal information or provide "yes" or "no" answers. The information provided by Patient H.Y. included the following: (a) her email address, full name, and day time and evening telephone numbers; (b) details regarding the credit card to which the order would be billed, (c) a billing address, (d) a shipping address, and (e) answers to several questions in the section of the form described as "Medical Questionnaire." The information provided in the "Medical Questionnaire" portion of the form included: (a) her date of birth; (b) her sex; (c) a question regarding high blood pressure (response: no); (d) an agreement not to take any over-the-counter medicines without approval from her pharmacist (agreed); (e) an agreement to monitor her blood pressure at least once every 14 days and to stop taking the medication immediately if the blood pressure is over 140/90 (agreed); (f) agreement to not take the medication if the person was pregnant, breast feeding, or trying to get pregnant (agreed); (g) answers to questions involving any current medical conditions, all medication currently taken, all medications intending to be taken while on this program, all allergies, any surgeries, anything in patient’s medical history the patient deems relevant (all answered “none”); (h) patient’s height of 5 feet, 3 inches, and weight of 173 pounds; (i) the answer “yes” to a statement that the patient has read, understood, and agreed to the patient responsibility statement and the informed consent; and (j) the answer “no” to receiving two special offers. On or about August 7, 2002, the Respondent wrote a prescription to Patient H.Y. for a total of 90 capsules of Phentermine 30 mg.2 During the course of the investigation that led to the filing of the Administrative Complaint in this case, prior legal counsel for the Respondent provided the Department's investigator with more documents from the Respondent's medical records than the two documents identified as Joint Exhibits 2 and 3 in this case. The Department does not know one way or the other whether the documents it received from the Respondent's prior legal counsel comprise the entirety of the Respondent's medical record of his treatment of Patient H.Y.3
Recommendation Based on the foregoing, it is RECOMMENDED that a Final Order be issued in this dismissing all charges in all four counts of the Administrative Complaint by reason of the insufficiency of the evidence. DONE AND ENTERED this 3rd day of October, 2005, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 3rd day of October, 2005.
The Issue The issue to be decided is whether disciplinary action should be taken against the Respondent's license as a medical doctor for the alleged violations of Chapter 458, Florida Statutes (1983), as set forth in the Administrative Complaints?
Findings Of Fact The Respondent is licensed as a medical doctor with the State of Florida, Board of Medical Examiners. The license, Number 28366, was first issued on February 11, 1976. The Respondent was licensed at all times relevant to this proceeding. October 5, 1983 Complaint. On or about July 7, 1982, the State Attorney of the Eleventh Judicial Circuit filed a ten (10) count Information against the Respondent. In the information it was alleged that the Respondent knowingly and unlawfully filed, attempted to file or aided and abetted in the filing of claims for services to recipients of state or federally funded assistance program benefits (the Florida Medicaid Program) in violation of Section 409.325, Florida Statutes. The services, according to the Information, were never rendered. On April 18, 1983, the State of Florida nolle prossed Counts 3 and 4 of the Information. On June 30, 1983, the State nolle prossed Counts 1, 2, 5, 7 and 9. The same day, the Respondent withdrew his original plea and plead guilt to the remaining counts: 6, 8 and 10 of the Information. As a result of the Respondent's guilty plea, he was found guilty on counts 6, 8 and 10 and adjudication was withheld. The Respondent was placed on probation for one (1) year and was required to repay $3,500.00 to the Florida Medicaid Program. The Respondent completed his probation, which was terminated early by the court, and made restitution to the Florida Medicaid Program. The Respondent stipulated that he plead guilty to Counts 6, 8 and 10 of the Information, that adjudication ways withheld and that the case was disposed of in the manner described above. According to the Respondent, he plead guilty on the advice of this counsel and as a matter of convenience (to himself and not "to all parties" as suggested by the Respondent in his proposed findings of fact). He did so despite his belief that he was not guilty. The Respondent's proposed finding of fact that his attorney never advised him that he could be in violation of Section 458.331(1)(c), Florida Statutes, irrelevant. July 27, 1983 Complaint. On March 24, 1981, the Respondent saw Ana Gonzalez as a patient in his office. Ms. Gonzalez was thirteen years old at the time of her first visit (Ms. Gonzalez's date of birth was incorrectly listed as "8-7-82" in the Respondent's records). Ms. Gonzalez, according to the Respondent's record of Ms. Gonzalez's visits (hereinafter referred to as the "Patient Records") complained of "pain of mild intensity on lower left quadrand [sic], inradiating [sic] to right lower quadrant and left lumbar fossa." The Patient Records, which were all in the same handwriting, 1/ also indicate that Ms. Gonzalez had low back pain, dark urine which looked like blood and a fever of 100.4 degrees. A physical examination of Ms. Gonzalez found nothing abnormal except pain in both lower quadrants of the abdomen and the left lumbar fossa of the back. The Respondent made a probable diagnosis of pyelonephritis and ordered a SMAC 26, a Complete Blood Count ("C.B.C."), an urinalysis, an E.K.G. and a chest x-ray. The Petitioner has proposed a finding of fact that the chest x-ray and the E.K.G. were not referred to in the Patient Records. This proposed finding is incorrect. The Respondent did, however, order a kidney, urethra and bladder x-ray ("K.U.B.") which was not recorded in the Patient Records. The Respondent also prescribed an antibiotic. The results of the E.K.G. and the chest x-ray are not noted in the Patient Records; nor does the E.K.G. print-out include any findings. The SMAC 26 showed nothing abnormal. The C.B.C. also showed nothing abnormal and the K.U.B. was negative. Finally, the urinalysis showed that the patient's urine was yellow, clear and contained no blood. The charges for the first visit were $30.00 for the examination, $182.00 for the SMAC 26 (charged at $7.00 per 26 procedures), $6.00 for the urinalysis, $10.00 for the C.B.C., $40.00 for the chest x-ray and $40.00 for the E.K.G. No charge was made for the K.U.B. The patient was next seen by the Respondent on March 31, 1981 (erroneously reported as March 31, 1982 in the Patient Records). The Petitioner's proposed finding of fact that the Patient Records were kept in the same pen is therefore incorrect. The Patient Records indicate the following: "The patient is feeling a little better of pain. No fever. Persist urine dark." The Patient Records do not indicate that Ms. Gonzalez was examined on this visit. The Respondent continued the antibiotic and ordered the following tests: a C.B.C., a K.U.B. and an intravenous pyelogram ("I.V.P."). The I.V.P. was reported as negative in the Patient Records. The C.B.C. again found no abnormalities. The K.U.B., as testified to by the Respondent, was also negative. The Respondent testified that he ordered another K.U.B. on this visit because he again found blood in the patient's urine and because he believed that you can never tell when a test will result in a positive finding. The Petitioner has proposed the following finding of fact with regard to the March 31, 1981 visit: Again, the tests results obtained from the laboratory show that the urine is not discolored and that the urine does not contain blood, in contradiction with the handwritten medical record of the Respondent. Although this proposed finding is correct with regard to tests performed on the March 24, 1981 visit, no urine test was performed on the March 31, 1981 visit. The charges for the March 31, 1981, visit included $30.00 for the examination, $10.00 for the C.B.C., $40.00 for the K.U.B. and $80.00 for the I.V.P. The third visit by Ms. Gonzalez was on April 7, 1981. On this visit, Ms. Gonzalez was feeling much better (the "pain was very mild"), but the Respondent determined there was still blood in her urine. The Patient Records again do not indicate the results of any physical examination. The Respondent ordered an urinalysis which found that her urine was yellow. Although the Respondent testified in his deposition that the Patient Records for the April 7, 1981 visit were complete, billing records show that a charge for an I.V.P. was made for April 7, 1981 which was not recorded in the Patient Records. The Respondent admitted in his deposition that no I.V.P. was performed and stated that the charge for $80.00 was a mistake. The Respondent stated that he did perform a K.U.B. or I.V.P. on this visit because it was too soon after the last K.U.B. and I.V.P. tests. Instead of an I.V.P., the Respondent testified in his deposition that Ms. Gonzalez received physiotherapy for which she should have been charged only $20.00. The physiotherapy was ordered because of the patient's complaints of lower back pain and consisted of heat treatment/ultrasound. Petitioner, in its proposed findings of fact, indicates that the Respondent took Ms. Gonzalez, off the antibiotic he had prescribed earlier at the April 7, 1981 visit, citing "(Depo., page 20)." This proposed finding is not supported by the record. Other charges for the April 7, 1981, visit included $30.00 for the examination and $6.00 for the urinalysis. The next visit by Ms. Gonzalez was on April 14, 1981. The Patient Records do not indicate Ms. Gonzalez's condition or that an examination was performed. The Patient Records only indicate that the Respondent suggested hospitalization of Ms. Gonzalez so that more tests could be made and that her father refused. The Respondent ordered a K.U.B. (which was negative) and a SMAC 26 (which found no abnormalities). The antibiotic was also changed. The charges for this visit included $30.00 for the visit, $40.00 for the K.U.B. and $182.00 ($7.00 per 26 procedures) for the SMAC 26. Again the bill included a charge of $80.00 for an I.V.P. which, according to the Respondent, was a mistake in billing. The Respondent actually performed physiotherapy which should have resulted in a $20.00 charge. The final visit occurred on April 20, 1981. The Patient Records for this visit indicated the following: I insisted some UROLOGY must consultate this patient and she refused to see another Doctor and culture and sensitivity. She says she does not want to go to the rest room. She decides pick up the urine. I decide another I.V.P. because persist a mild hematuria [blood]. Mr. Gonzalez again refused to admit his daughter to a hospital as suggested by Respondent. The Respondent recommended hospitalization because his tests were not finding anything and he therefore wanted to run a kidney scan. There is no indication in the Patient Records as to whether an examination was performed. The Respondent ordered a K.U.B., an I.V.P. and a C.B.C. The results of these tests are not recorded in the Patient Records but the Respondent has testified that they were negative. On this visit the Respondent indicated his diagnosis was pyelonephritis, which he described as "kidney infection." Charges for this visit were $30.00 for the examination, $40.00 for the K.U.B., $80.00 for the I.V.P. and $10.00 for the C.B.C. Pyelonephritis is an inflammatory reaction of the kidney involving the kidney tissue and the pelvis of the kidney. It is usually accompanied by severe toxicity, a temperature for a child the age of Ms. Gonzalez of 104 to 105 degrees and extreme chills. It is a serious infection. The diagnosis of pyelonephritis on March 24, 1981 and April 20, 1981, by the Respondent was not medically justified. Ms. Gonzalez did not have any of the symptoms normally associated with pyelonephritis. The results of all of the tests performed by the laboratory 2/ and the Respondent were negative. Laboratory test results conclusively showed that Ms. Gonzalez's urine was yellow, and contained no blood. Additionally, the Respondent should have performed a urine culture, a blood culture and a sensitivity test before concluding that the patient was suffering from pyelonephritis. The cultures would have determined if there was an organism present and, if so, what type. The sensitivity test would have shown what the organism was sensitive to. None of these tests were performed. Most of the tests ordered by the Respondent were also not medically justified. The only tests which were clearly medically justified were the SMAC 26, C.B.C. and the urinalysis ordered on March 24, 1981. Most of the remaining tests were not medically justified as hereinafter discussed. The E.K.G. performed by the Respondent on March 24, 1981, was not medically justified. The Respondent indicated that he ordered an E.K.G. because he was looking for valvular problems with Ms. Gonzalez's heart. An E.K.G., however, only, shows the electrical activity of the heart. The Respondent also testified that the E.K.G. was performed because he suspected a kidney problem. According to the Respondent, if there was a problem with Ms. Gonzalez's kidneys, it could have affected her E.K.G., especially in light of her age. No problem was found according to the Respondent. The chest x-ray performed on the March 24, 1981 visit was not medically justified. This test resulted in exposure of Ms. Gonzalez to x-rays which could be harmful to her. The Respondent, based upon his deposition testimony, believes that a chest x-ray should be taken of anyone who comes to his office as a patient and has insurance. With regard to Ms. Gonzalez, he indicated that her parents requested the chest x-ray but admitted there was no medical cause for her to receive a chest x-ray. The K.U.B. tests performed on March 24, 1981, March 31, 1981, April 14, 1981 and April 20, 1981 and the I.V.P. tests performed on March 31, 1981 and April 20, 1981 were not medically justified. These tests also resulted in exposure of Ms. Gonzalez to x-rays which could be harmful to her; especially the I.V.P. test which has six to seven times the radiation level of a K.U.B. The I.V.P. was also a dangerous procedure because it is an invasion procedure (the introduction of a foreign substance to the body). Even the Respondent must have realized the possible problem with the I.V.P. since he indicated that this test was not performed on April 7, 1981, because it was too soon after the test performed on March 31, 1981. The second SMAC 26 test, performed on April 14, 1981 was not medically justified. The test, according to the Respondent, was performed because the blood in Ms. Gonzalez's urine persisted. The evidence clearly shows that there was no blood in her urine, however. A SMAC 26 is a single laboratory procedure whereby one blood sample is divided into 26 parts (or some other number of parts) which are diagnosed or read by a machine at the same time. It is not 26 separate tests; it is a single automated test. The method by which the Respondent billed for the SMAC 26 tests performed on March 24, 1981 and April 14, 1981, (charging $7.00 for each of 26 tests) was not justified. The Respondent billed for the S4AC 26, which gas performed by Central Medical Laboratory, because he believed that the insurance company would pay what he hoped to receive for the test: $60.00-$80.00. If he had only billed $60.00 for the test he stated that he would only have received $6.00 to $10.00 from the insurance company. The Petitioner has proposed a finding that the SMAC 26 billing was "outrageously high." The evidence supports a finding that the charge was excessive. Finally, the C.B.C. tests of March 31 1981 and April `20, 1981 and the physiotherapy performed on April 7, 1981 and April 14, 1981 were not medically justified. Dr. Handwerker's testimony was consistent with the findings in this Recommended Order with regard to the lack of medical justification for most of the tests. The Respondent stated that he agreed in part and disagreed in part with Dr. Handwerker's testimony. When asked to identify those areas of Dr. Handwerker's testimony he disagreed with, the Respondent unsuccessfully attempted to rebut Dr. Handwerker's testimony with regard to the E.K.G. and chest x-ray and with the fact that the tests were repeated to often. 3/ The Respondent did not attempt to rebut any other part of Dr. Handwerker's testimony, which was based upon his examination of the Patient Records and the Respondent's deposition (she did not examine Ms. Gonzalez). Based upon the foregoing, it is clear that the Respondent failed to practice medicine in conformance with the generally accepted and prevailing standards of medicine in the medical community. The Respondent also failed to, practice medicine with the level of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under similar circumstances and conditions. The father of Ms. Gonzalez testified on behalf of the Respondent. Mr. Gonzalez stated that he was satisfied with the Respondent's medical care of the Gonzalez family and that he would continue to retain the Respondent. Letters submitted by the Respondent also indicated that friends, associates and his pastor believe the Respondent is honest, experienced, qualified and of high moral and ethical standards. Although the Respondent testified that he had done the best he could do for Ms. Gonzalez, the unrebutted testimony supports a conclusion that his best was not good enough. Finally, the Respondent's testimony to the effect that he had not intended to exercise influence over Ms. Gonzalez or to deceive her in his medical treatment of her is not believable in light of the facts.
Recommendation Based on the foregoing Findings of Fact and Conclusions RECOMMENDED: That Respondent be found guilty of violating Section 458.331(1)(c), Florida Statutes (1983), by being found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of medicine or to the ability to practice medicine. It is further RECOMMENDED: That Respondents be found guilty of violating Section 458.331(1)(l), Florida Statutes (1983), by employing a trick or scheme in the practice of medicine when such scheme or trick fails to conform to the generally prevailing standards of treatment in the medical community. It is further RECOMMENDED: That Respondent be found guilty of violating Section 458.331(1)(o), Florida Statutes (1983), by exercising influence on a patient or client in such a manner as to exploit the patient or client for financial gain of himself, as a licensee. It is further RECOMMENDED: That Respondent be found guilty of violating Section 458.331(1)(t), Florida Statutes (1983), 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. It is further RECOMMENDED: That the Respondent's medical license be suspended for a period of one (1) year and that the Respondent be placed on probation for a period of three (3) years, upon reinstatement of his license, subject to such conditions and terms of monitoring and continuing medical education as may then be prescribed by the Board of Medical Examiners. DONE and ORDERED this 22nd day of February, 1985, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 FILED with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1985.
The Issue Whether Petitioner's responses to Questions 38, 53, and 71 of the April 1991 Mental Health Counselor's Examination were incorrectly scored. Whether Question 71 of said examination is an improper question.
Findings Of Fact Petitioner sat for the Mental Health Counselor's Examination administered by Respondent in April 1991. Petitioner was credited with 102 correct answers out of 140 questions on the professional counseling section of the examination. A score of 103 correct answers out of 140 questions was required to pass the section. Petitioner abandoned all challenges except the challenges to the scoring of her responses to Questions 38, 53, and 71. Petitioner also asserts that Question 71 is unfair because it is ambiguous. All three of the questions involved in this proceeding are multiple choice questions, each with four possible answers. The candidates are instructed to select the best answer to the question. Question 38 pertains to an expression used to described adolescence and asks the candidate to select the best answer that explains the meaning of that expression. Petitioner selected multiple choice number 4 as her answer to the question. Respondent established that multiple choice number 1 was the best answer to the question. Petitioner received no credit for her answer to question 38 because she did not select the best answer to the question. Question 53 pertains to a patient who rambles during an interview and requires the candidate to select from among the four multiple choice answers the best answer that names the technique used by the interviewer to bring the patient back to the main purpose of the discussion. Petitioner selected multiple choice number 1 as her answer to the question. Respondent contends that multiple choice number 4 was the best answer to the question. Petitioner contends that multiple choice number 4 is not a technique and that, consequently, number 4 cannot be the best answer to the question. The greater weight of the evidence, including the literature submitted as exhibits by the parties, is that multiple choice number 4 is a technique and that multiple choice number 4 is the best answer to the question. Petitioner received no credit for her answer to question 53 because she did not select the best answer to the question. Question 71 pertains to an employee at an industrial plant who has sought out the mental health counselor in the employee assistance program. Petitioner contends that the question is ambiguous because insufficient information is given for the reasons the employee sought out the mental health counselor. Respondent established that sufficient information was provided by the root of the question to enable the candidate to select the best answer to the question. Consequently, it is concluded that the question is not impermissibly ambiguous. Petitioner selected multiple choice number 1 as her answer to Question Number 71. Respondent established that multiple choice number 2 was the best answer to the question. Petitioner received no credit for her answer to question 71 because she did not select the best answer to the question.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which upholds the validity of Question 71 and which denies Petitioner's challenge to the scoring of her responses to Questions 38, 53, and 71 of the professional counseling section of the Mental Health Counselor's Examination administered by Respondent in April 1991. DONE AND ORDERED this 11th day of May, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearing The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1992. APPENDIX TO RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraph 1 are discussed as preliminary matters. The proposed findings are unnecessary as findings of fact and are, consequently, rejected. The proposed findings of fact contained in the first sentence of Paragraph 2.a.(1) are rejected because they are unnecessary to the conclusions reached. The candidates are instructed to select the best answer to the question. All four choices may be correct answers. While it may arguably be a correct answer, the answer selected by the Petitioner was not the best answer to the question. The proposed findings of fact contained in the second sentence of Paragraph 2.a.(1) are rejected because they are contrary to the findings made. The proposed findings of fact contained in Paragraph 2.a.(2) are rejected because they are subordinate to the findings made. The proposed findings of fact contained in Paragraph 2.a.(3) are rejected because they are contrary to the findings made. The proposed findings of fact in Paragraph 2.b.(1) are rejected as being the recitation of testimony that was considered in making the finding that the question is not ambiguous. The proposed findings of fact in Paragraph 2.c.(1) are rejected as being the recitation of testimony that was considered in making the findings reflected herein. The question called for the candidate to state what the phrase means, not whether the phrase is an improper use of a word of art. The proposed findings of fact in Paragraph 2.c.(2) are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 3, 4, 5, and 6 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 7 are rejected as being unsubstantiated by the evidence. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in Paragraphs 1 and 2 are adopted in material part by the Recommended Order. The proposed findings of fact in Paragraph 3 are rejected as being unsubstantiated by the evidence. The proposed findings of fact in Paragraphs 4, 5, 6, and 7 are rejected as being subordinate to the findings made. COPIES FURNISHED: Caren Glassman 1231 SE 1 Street Apt. 13 Fort Lauderdale, Florida 33301 Vytas J. Urba, Esquire Assistant General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Diane Orcutt, Executive Director Department of Professional Regulation Mental Health Counselors 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Dr. Orasan violated Section 458.331(1)(n), Florida Statutes (1985), by failing to keep medical records that justify the course of treatment for two (2) patients, and whether he violated Section 458.331(1)(t), Florida Statutes (1985), 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 order any laboratory testing to determine the efficacy of the course of treatment he prescribed for a patient.
Findings Of Fact Dr. Orasan is a licensed physician in the State of Florida holding license number ME 0022079. He has been licensed in Florida since 1974. There is no evidence of any prior charges against Dr. Orasan in Florida or anywhere else he has practiced. Dr. Orasan treated an undercover agent of the Broward County Sheriff's Office, Jodie Raft, during the period July 3, 1985, to October 10, 1985. Officer Raft used the name of Jodie Rafferty when she sought treatment from Dr. Orasan on three different occasions, and on a fourth where she accompanied another undercover deputy seeking treatment from Dr. Orasan, Joseph Damiano. For purposes of this order officer Raft will be referred to as Jodie Rafferty. When she first came to Orasan's office on July 3, 1985, Rafferty filled out a patient history form. Upon seeing Dr. Orasan, her chief complaint was her inability to relax with her boyfriend. Rafferty said she had previously been given Valium by a doctor in New York and it had helped her in interaction with a boyfriend there. By her appearance, her complaints, and clinical examination revealing a positive Chvosteck's sign and spots on her fingernails, Dr. Orasan determined that she had a calcium deficiency (which he referred to as spasmofilia), anxiety and reactive neurosis. He prescribed calcium and gave her a prescription for a small quantity of Valium for anxiety (60 2mg. tablets). After making his diagnosis on the facts set out above, Dr. Orasan did not order diagnostic blood testing to validate the diagnosis of a calcium deficiency. Dr. Orasan examined Rafferty on two more occasions, September 19, 1985 and October 10, 1985. His clinical examination continued to reveal a positive Chvosteck's sign and an indication from the fingernails that there was an underlying calcium deficiency. He continued to prescribe small quantities of Valium and a calcium supplement. An expert for the Board of Medicine opined that routine blood work should have been done to obtain a serum calcium level, and that the failure to have blood tests done on Rafferty (or at least to recommend them and note this in her records if Rafferty had indicated resistance to the cost of the test), constituted a failure to practice medicine with that level of care, skill, and treatment which is recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances. Dr. Orasan contends that his clinical findings justified the diagnosis of low calcium, and that testing to confirm this would be redundant and wasteful of the patient's money. Regarding the records kept on Rafferty, the entries made in Dr. Orasan's own medical records form with regard to the history, physical examination, diagnostic impressions and plan of treatment are exceedingly brief and inadequate. On October 17, 1985, Joseph Damiano, using the name Joseph Delano, came with Rafferty for a consultation with Dr. Orasan. Delano filled out a medical form for the receptionist. When he saw Dr. Orasan, Delano explained he wanted Valium to increase sexual longevity. Orasan checked Delano's blood pressure, reflexes and found a positive Chvosteck's sign. He determined that Delano also had a calcium deficiency and prescribed a small quantity of Valium for anxiety and premature ejaculation (60 10mg tablets). Dr. Orasan emphasized to Delano, as he had to Rafferty, the addictive quality of Valium, and emphasized that it should not be used for a long period or in large doses. The expert witness for the Board of Medicine found that the actual interviews which Orasan had with the patients (which had been taped and the transcriptions of which were entered into evidence), justified the prescriptions for the small quantities of Valium, and that Dr. Orasan "exercised good to excellent judgment and control over how [he] wrote the prescriptions and the advice he gave to the patients. Particularly, in the advice [he] gave to the patients, I must comment that I believe that that is above community standard" (Tr. 89). With regard to his records, Dr. Orasan, himself, admitted to some deficiency in the charts and conceded that "they were perhaps two of the worst charts in my life". (Tr. 108.) The office charts kept on both patients were inadequate. Dr. Orasan prefers not to record a diagnosis of sexual dysfunctions such as anxiety or premature ejaculation. He believes these conditions may be transient, but health insurers or others who may later have access to the records may view such diagnoses as indication of psychosis and cause patients difficulties such as denial of insurance. This belief fails to justify the brevity of the records. The problem with the records is not just with the diagnosis, but also with the inadequate record of history and clinical findings. With respect to the charge of malpractice by not obtaining serum calcium levels on patient Rafferty, there is not clear and convincing evidence that Dr. Orasan's performance failed to meet prevailing standards of practice in the Broward County medical community. Dr. Orasan's difference in approach from the Department's expert is one of relative emphasis on the usefulness of the information to be derived from testing, when balanced against the cost of testing. These two doctors disagree. The evidence taken as a whole is not persuasive that Dr. Orasan's judgment that further testing was unnecessary constituted malpractice.
Findings Of Fact 1. The Administrative Law Judge’s findings of fact are hereby approved, adopted, and incorporated herein as amended by the exceptions granted. 2. There is competent, substantial evidence to support the Administrative Law Judge’s findings of fact as amended and adopted by the Board. EXCEPTIONS TO CONCLUSIONS OF LAW 1. Petitioner filed an exception to 453 of the RO wherein the ALJ concluded that Petitioner did not satisfy its burden of proof. The exception to 453 is granted., The record overwhelmingly supports by clear and convincing evidence that ‘ Respondent breached the standard of care. Respondent was responsible for the care and treatment of this patient. Respondent's responsibility to his patient as attending physician and surgeon of record required him to review the patient's records so that this error would not occur under his supervision. 2. Petitioner filed an exception to 455 of the RO wherein the ALJ concluded that the record failed to establish that Respondent breached any applicable standard of care, and that there was no evidence that Lankau committed any errors-or omissions which were connected in any way to the wrong site surgery. The exception to 455 is granted as not being supported by competent substantial evidence. Paragraph 55 is stricken, and is replaced with the following conclusion of law: The record in this case establishes that Lankau breached the standard of care. 10 3. Respondent filed an exception to {55 of the RO and requested that the findings in {55 be considered a finding of fact rather than conclusion of law. The exception is denied.
Other Judicial Opinions Pursuant to Section 120.569, Florida Statutes, any substantially affected person is hereby notified that they may appeal this Final Order by filing one copy of a Notice of Appeal with the clerk of the Department of Health and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within 30 days of the date this Final Order is filed. 12 CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to CHARLES A. LANKAU, MD, c/o W. Sam Holland, Esquire, 200 S. Biscayne Bivd., Suite 800, Miami FL 33131, and Florence Synder Rivas, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee FL 32399-1550 and and by inter-office mail to Nancy Snurkowski, Chief-Practitioner Regulation, Agency for Health Care Administration, 2727 Mahan Drive, Tallahassee FL 32308-5403 and Lisa Pease, Senior Attorney-Appeals, Agency for Health Care Administration, 2727 Mahan Drive, Ft. Knox #3, Tallahassee FL 32308, this tiff, day of _(\41- A__) 2002. F:\USERS\ADMIN\LEE\MEDICINE\ORDERS\LANKAU2.02.wpd 13
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: GENERAL At all times material to this proceeding, Respondent, Brian A. Lasseter was a licensed physician in the state of Florida, having been issued license number ME 0033303 by the state of Florida. This matter arose as a result of the Petitioner reviewing the hospital records of 14 patients hospitalized and treated by Respondent at Waterman Memorial Hospital (Waterman), Eustis, Florida, between June, 1980 and June, 1983. The Petitioner's experts, Dr. Yelverton and Dr. Marley, did not review Respondent's office records of the patients material to this proceeding prior to testifying. However, both Dr. Yelverton and Dr. Marley reviewed the hospital records prior to testifying. There was no evidence that any of Respondent's patients material to this proceeding complained of Respondent's treatment or lack of treatment, or Respondent's failure to correct the medical problem presented by the patient through the surgery performed by Respondent. The Respondent used what he described as the "open-technique" in all transabdominal hysterectomies (TAH) performed on the patients material to this proceeding. There was sufficient evidence to show that by using the "open- technique" the Respondent was able to make certain anterior and posterior vaginal repair, such as correcting a mild to moderate cystocele (a hernia of the urinary bladder into the vagina), to help a rectocele (a hernia protrusion of the rectum into the vagina), to a mild degree, to correct stress urinary incontinence (SUI)(inability to control urine when coughing, sneezing, etc.), and to help suspend other prolapsed tissue. The Respondent learned the "open-technique" procedure from doctors who were practicing at the Orlando Regional Medical Center while Respondent was in training there. Neither Dr. Marley nor Dr. Yelverton were familiar with the "open- technique" and had not had that procedure described to them by the Respondent. There was insufficient evidence to show that the use of the "open- technique" as a procedure to be used concurrently with a TAH to correct certain anterior or posterior vaginal repair, to correct SUI and to help suspend other prolapsed tissue was practicing medicine below acceptable medical standards as is contemplated by Section 458.331(1)(t), Florida Statutes (1979). Patient, K. G. W. Medical Record No. 03-53-61 K. G. W. was one of Respondent's female patients, born September 14, 1946, upon whom Respondent performed a bilateral tubal ligation (BTL) on January 8, 1981. On April 9, 1982, K. G. W. visited Respondent's office for a routine examination. The examination revealed a cervical polyp. Dilatation and curettage (D&C) and polypectomy procedures were performed on K. G. W. by the Respondent on April 23, 1982 in Waterman. A sample of tissue from the uterus was sent to the pathology laboratory for testing. The results of the tests revealed the presence of trophoblastic activity (tissue). Trophoblastic tissue is the pathological term for products of conception or placental tissue. The significance of the trophoblastic tissue being present in this patient is that most likely she had conceived, notwithstanding the previous BTL, and had suffered a miscarriage. Neither the BTL procedure performed on January 8, 1981, nor the D & C/polypectomy procedure performed on April 23, 1982, are in contention in this proceeding. On April 27, 1982, K. G. W. had a follow-up office visit with the Respondent concerning the operation performed on April 23, 1982. Respondent explained to K.G.W. and her husband during this visit that she had conceived, notwithstanding the BTL, and had miscarried. He further explained the presence of trophoblastic tissue and the diagnosis of possible trophoblastic disease. The Respondent's office notes concerning this visit indicate the presence of trophoblastic activity with this patient for the previous 2 1/2 years. Apparently this was the basis for Respondent's diagnosis of possible trophoblastic disease since no further testing was performed until the patient's admission to Waterman on April 12, 1982. Based on her discussion with the Respondent, the patient (with husband's approval) consented to a TAH to prevent conception in the event of a failed BTL and to control possible trophoblastic disease. K. G. W. was admitted to Waterman on May 11, 1982 by Respondent and scheduled for a TAH and posterior vaginal repair on May 12, 1982. Respondent performed the TAH using the "open-technique" on May 12, 1982 and made the necessary posterior vaginal repair. The admitting, preoperative, postoperative and final diagnosis was trophoblastic disease. Trophoblastic disease is a condition where placental tissue becomes abnormal and can develop either a malignant process called a hydatidiform mole or a choriocarcinoma. A choriocarcinoma is a malignant process that can be fatal. Where trophoblastic disease is suspected in a patient, as Respondent suspected in this patient, a test known as H.G.C. Titer should be performed serially, usually weekly, to determine whether the hormone qonadotropin chorionic is rising or falling. The hormone qonadotropin chorionic is secreted by the placenta at the time of pregnancy, and the H.G.C. Titer measures the level of this hormone in the bloodstream. In a trophoblastic disease situation where there is a hydatidiform mole or choriocarcinoma developing, the titer will rise in a precipitous fashion to a very high level. An H.C.G Titer was ordered by the Respondent for the patient at the time of her admission on May 12, 1982. The result of this test showing the lowest level of qonadotropin chorionic, meaning a non-pregnant state, was reported to Respondent by Dr. William W. Conner, M.D. on May 14, 1982. Respondent ordered no further testing for the hormone qonadotropin chorionic after May 12, 1982, including the time after the patient's discharge from Waterman. Also the Respondent did not order any testing for the hormone between April 23, 1982, the date of the pathology report showing trophoblastic tissue in the patient, and the time of the test on May 12, 1982, to support his diagnosis of trophoblastic disease. The more prudent approach in this case may have been further testing and evaluation to confirm or rule out trophoblastic disease if Respondent suspected this possibility, even though the patient's records do not support this diagnosis. There is sufficient evidence in this case to show that the Respondent was practicing medicine within acceptable medical standards considering that the patient wanted a hysterectomy to prevent further pregnancies and the potential for troproblastic disease. However, there is insufficient documentation in the patient's records to justify the course of treatment for this patient. Patient E. A. K., Medical Record No. 03-13-09 E. A. K. was one of Respondent's female patients born July 22, 1948, with a history of chronic pelvic inflammatory disease (PID). PID is the inflammation of the uterus, fallopian tubes and ovaries. This patient also had a history of tubo-ovarian abscesses. Respondent had been treating this patient since April, 1979. Respondent saw this patient in his office on July 9, 1981, and again on July 13, 1981 when he discussed with the patient a TAH to correct her problem. The patient refused to have her tubes and ovaries removed because she did not want to be on hormones. Respondent advised E. A. K. that he would not remove her tubes and ovaries unless they were infected. This satisfied the patient's concern about having to take hormones. The physical examination revealed the abdomen to be tender in lower quadrants, otherwise negative, and an enlarged uterus that was antiflexed, tender to touch with some fullness noted in the adnexa. Respondent's impression was chronic PID with a plan for TAH, possible unilateral salpingectomy and oophorectomy (US-O). On July 21, 1981, the patient was admitted to Waterman. The preoperative diagnosis by Respondent was chronic PID and Dysfunctional Uterine Bleeding (DUB), whereas the Operating Room Case record shows only DUB as the preoperative and postoperative diagnosis. The Clinical Summary shows the final diagnosis as chronic PID but not DUB. The discharge summary shows neither chronic PID nor DUB as a diagnosis. The Respondent performed a TAH and lysis of adhesions on July 22, 1981, but did not perform a US-0. Although the Respondent did not remove the patient's tubes and ovaries because they were not infected, there is nothing in the patient's records to confirm the condition of the tubes and ovaries at the time the Respondent performed the surgery. The hospital notes indicate that adhesions were on the uterus, that these adhesions were removed without difficulty, and the uterus removed from the abdominal cavity using the "open technique". There is insufficient documentation in the patient's records to justify the course of treatment that Respondent chose for this patient. Patient L. L. M., Medical Records No. 03-87-53 L. L. M. was one of Respondent's female patients born August 3, 1930, with no previous significant gynecological problems who was admitted to Waterman by Respondent on January 5, 1982 with an adnexal mass. A pelvic sonogram was performed which suggested that the mass was an ovarian cyst. Respondent's pelvic examination of the patient did not reveal a frozen pelvic and this being a so called "virgin belly" (no previous operations) there was no reason to consider there would be difficulty with adhesions in removing the uterus. Respondent elected to go directly to surgery with a plan of performing a TAH and a bilateral salpingo-oophorectomy (BS-O). Upon entering the abdomen, Respondent found the uterus encased in adhesions with the other body organs around it virtually "glued" together making it difficult to work with the adhesions. Respondent performed a frozen section and removed both adnexa. The pathological report indicated "possible endometriosis" but noted "no evidence of endometriosis seen". Endometriosis is where the lining of the uterus, which is endometrium, implants itself outside the uterine cavity but generally is localized and extends in the pelvic cavity. Respondent concluded that the ovarian cysts were endometriosis, which are large, usually painful ovarian cysts that are associated with the disease endometriosis. At this point Respondent decided to remove the ovaries and tubes but not the uterus. This decision was based on the expected complications of removing a uterus that was encased in adhesions and the fact that by removing the tubes and ovaries hormone production was stopped and the endometriosis could be cured if patient was not placed on hormonal therapy for a period of time. Additionally, Respondent felt that there were other medications that could be used to alleviate menopausal symptom. Respondent's postoperative treatment of this patient supports this decision. Respondent did not perform a D&C procedure on this patient. There is sufficient evidence to show that the documentation in the patient's records justify the course of treatment of this patient and that Respondent's treatment of this patient was within acceptable medical standards. Patient, G. M. S., Medical Records No. 01-82-88 G. M. S. was one of Respondent's female patients, born June 30, 1896, who suffered from a condition known as procidentia, which is complete prolapse of the uterus. G. M. S. had suffered from this condition for a number of years and had developed complications associated with the condition. G. M. S. had previously suffered a stroke and this, along with her age, would indicate the necessity to employ conservative procedures to correct her problem. Although there is sufficient evidence in the record that conservative procedures, such as a pessary (a device worn in the vagina to support the uterus), had been employed by G. M. S.'s previous physician, the patient's records did not reflect what conservative procedures were offered to the patient by her previous physician. The patient and her family were advised of the risks involved in the surgical procedure proposed by the Respondent, but because of the problems the patient was having, the family and the patient elected to go with the surgical procedures proposed by the Respondent. Respondent admitted G. M. S. to Waterman on June 15, 1980 with a diagnosis of prolapsed uterus where he performed a TAH and a BS-O. There is sufficient evidence in the record to show that conservative procedures had been employed on this patient without success, and even considering the patient's age and previous stroke, performing a hysterectomy on this patient would be within acceptable medical standards. While a vaginal hysterectomy (VH) may have been the ideal procedure for this patient (due to age and previous stroke), performing a TAH on this patient would be within acceptable medical standards considering the possibility of adhesions from previous gall bladder operation. Patient, J. M. J., Medical Records No. 03-35-38 J. M. J. was born on November 9, 1907 and suffered from a procidentia (complete prolapse of uterus). J. M. J. was admitted to Waterman on January 19, 1982 by a physician other than Respondent but was seen in consultation by Respondent for a prolapsed uterus. On January 20, Respondent performed a TAH on J. M. J. using the "open technique". Although the history and physical examination records of this patient are brief and the records as a whole could have been better, they are sufficient to justify Respondent's course of treatment for this patient, as indicated by Dr. Yelverton's testimony. Respondent chose to perform a TAH rather than a VH because of prior ovarian surgery and the potential for danger due to the likelihood of adhesions being present. There was no evidence to show that performing a TAH on this patient would be practicing medicine below acceptable medical standards unless there was a failure to concurrently make the appropriate vaginal repair of other prolapsed tissue. There was sufficient evidence in the record to show that Respondent concurrently with the TAH made the appropriate vaginal repair. There was insufficient evidence to show that the documentation of the patient's records failed to justify the course of treatment for this patient. Patient D. M. S., Medical Records No. 02-47-14 D. M. S. was one of Respondent's female patients born July 7, 1950, who Respondent described as having a medical history of uterine prolapse, DUB, pelvic pain, dyspareunia (pain during sexual intercourse) and SUI. Since SUI can be mistaken for other bladder problems there are certain tests that should be undertaken to confirm SUI and to the degree. Respondent performed the necessary test in this office (although not sufficiently documented in the patient's records) to determine that the patient had a mild degree of SUI. The patient's records do not describe any tests that were taken to appropriately evaluate the SUI. There was no documentation that Respondent's findings were inconsistent with SUI. The patient's medical history and physical examination records are extremely brief. On January 18, 1983, Respondent admitted this patient to Waterman with an admitting diagnosis of uterine prolapse and DUB. On January 19, 1983 Respondent performed a TAH using what he characterizes as his "open technique". There was no evidence to show that performing a TAH on this patient would be practicing medicine below acceptable medical standards unless there was a failure to concurrently make the appropriate vaginal repair of other prolapsed tissue, including the failure to correct SUI, if SUI was a problem. There was sufficient evidence in the record to show that Respondent concurrently with the TAH made the appropriate vaginal repair and corrected the mild degree of SUI. The patient's records failed to document whether the Respondent performed any test on the patient to determine the presence of SUI, or whether he appropriately evaluated the condition to determine if surgery was required for the SUI and, if so, whether it was corrected by surgery. However, there was sufficient documentation in the patient's records to justify the course of treatment for this patient. Patient G. M. M., Medical Records No. 03-43-34 G. M. M. was one of Respondent's female patients born May 15, 1925 who Respondent described as complaining of spotting between her menses, dyspareunia, loss of urine when she laughed or coughed and feels that her "bottom" is falling out. Patient was also being treated by another physician for heart disease. The patient's records fail to document whether Respondent performed an appropriate preoperative work-up on the patient. The physical examination does not confirm the presence or absence of a significant prolapse of the uterus other than a second degree and does not describe the presence or absence of the usually associated cystoceles and rectoceles. The operative procedure is very brief. Although there was sufficient evidence to show that Respondent performed a test in his office to confirm SUI, there is no documentation in the records of any tests being performed to confirm SUI or to appropriately evaluate the condition to determine if surgery was required and, if so, how the SUI was to be corrected. On September 11, 1980 the patient was admitted to Waterman by Respondent with an admitting diagnosis of DUB and a second degree uterine prolapse, with a plan to perform a TAH using the "open technique" and a US-0. On September 12, 1980, the day of the operation, upon entry into the abdominal cavity the Respondent discovered extensive adhesions. A US-0 (right ovary being removed) was performed, the uterus freed of the adhesions up to the level of the cervix but because of the adhesions the Respondent decided to perform a supracervical hysterectomy only, meaning that the lower portion of the uterus (cervix) was not removed, with the cervix to be removed later vaginally, if necessary. Normally, extensive adhesions will hold the uterus up and keep it from prolapsing down into the vagina. However, in those instances where the adhesions push the uterus down into the vagina, and the cervix is not removed during surgery, then unless the cervix is suspended by a surgical procedure the patient continues to suffer from uterine prolapse. There is no documentation in the records to show that Respondent performed any surgical procedure on this patient to suspend the cervix and correct the uterine prolapse. However, there was sufficient evidence in the record that Respondent's procedure did correct the uterine prolapse and the SUI complained by the patient. Normally with a patient of this age who is spotting between menses, a physician would suspect endometrical carcinoma which would suggest evaluation of the patient by biopsy of the uterus or a D & C. Due to the patient's heart condition it was determined that she should not be "under" any longer than necessary. Taking this into consideration along with the time required to do the evaluation, the Respondent made a decision not to perform the evaluation. However, Respondent did explore the abdominal cavity for the presence of cancer during the operation, and this exploration did not give Respondent any reason to suspect cancer. There is sufficient evidence to show that Respondent was practicing medicine within acceptable medical standards notwithstanding the failure to remove the cervix. There is insufficient documentation in the patient's records to justify the course of treatment for this patient. Patient G. R., Medical Records No. 04-36-70 G. R. was one of Respondent's female patients born on May 30, 1939, who Respondent described as having a medical history of urinary prolapse, pain, tenderness, dyspareunia, and SUI. The patient was referred to Respondent by another physician. Respondent in describing the present illness refers to a prior tubal ligation but the past medical history reflects no prior operation. G. R. was admitted to Waterman on April 19, 1983, with a preoperative, postoperative and final diagnosis of uterine prolapse. On April 20, 1983, Respondent performed a TAH and BS-O on the patient using what has previously been described as his "open technique". Respondent chose a TAH as opposed to a VH because of a previous tubal ligation and the possibility of pelvic infection and adhesions as evidenced by the degree of pain experienced by the patient and an enlarged uterus, all of which were confirmed by the pathology report. There was insufficient evidence to show that in using the "open technique" procedure concurrently with performing the TAH that Respondent had failed to correct the uterine prolapse as well as the SUI, the complaint presented by the patient. There was insufficient evidence to show that Respondent in this case was practicing medicine below acceptable standards. The patient's records fail to document whether Respondent performed an appropriate preoperative work-up on the patient. The physical examination does not confirm the presence or absence of a significant prolapse of the uterus other than a second degree, prolapsed down to level of the introitus and does not describe the presence or absence of the usually associated rectocele and cystocele. The operative procedure is very brief. While the evidence in this case supports the Respondent's treatment of this patient, he has failed to document in the records justification for his course of treatment. PATIENT J. L. S., Medical Records No. 03-92-49 J. L. S. was one of Respondent's female patients born October 23, 1945, who Respondent described as complaining of dyspareunia and SUI and desiring some form of definitive birth control. Upon examination it was found that the patient had a second degree uterine prolapse, uterus retroflexion but no adnexal masses palpable. Respondent's diagnosis was dyspareunia, SUI and uterine prolapse. Although the presence of a cystocele is noted in present illness, no mention is made of the cystocele in the physical examination. No mention of the presence or absence of a rectocele is made in the physical examination. J. L. S. was admitted to Waterman on February 16, 1982 by Respondent with an admitting diagnosis of prolapse, dyspareunia and a preoperative and postoperative diagnosis of uterine prolapse and pelvic pain. On February 17, 1982 the Respondent performed a TAH with left salpingectomy (US-0) on the patient using the "open-technique". The final diagnosis was uterine prolapse and SUI. The patient's records fail to document whether or not a preoperative evaluation for SUI was done. Other than documenting that he used the "open- technique" there is no description of the correction of the cystocele or the SUI. There was insufficient evidence to show that using the "open- technique" procedure concurrently with performing the TAH that Respondent had failed to correct the uterine prolapse as well as the cytocele and SUI. There was insufficient evidence to show that Respondent in this case was practicing medicine below acceptable standards. While the evidence in this case supports Respondent's treatment of the patient, he has failed to document in the records justification for his treatment of the patient. Patient J. J. A., Medical Records No. 01-37-65 The Petitioner did not allege that Respondent's treatment of this patient was below acceptable medical standards. J. J. A. was admitted to Waterman on June 18, 1980 by Respondent with an admitting diagnosis of endometrial polyps and dysfunctional uterine bleeding. Both the preoperative and postoperative diagnosis was endometrial polys, dysfunctional uterine bleeding and menorrhagia. The Respondent's final diagnosis was adenonyosis and while the pathology report indicates an enlarged uterus and polypoid endometrium there is no specific diagnosis of adenomgosis in the pathology report. Although the Respondent's records in this case are not the best, there was sufficient evidence to show that they justified the Respondent's treatment of this patient notwithstanding the fact that he listed adenonyosis on the final diagnosis. Patient D. L. C., Medical Records No. 01-98-39 D. L. C. was one of Respondent's female patients born January 4, 1957, who Respondent describes as presenting complaints of heaviness, dyspareunia (to such a degree that she can longer have sex), always tired, and continually getting discharges without relief. Patient has history of SUI. On examination it was discovered that her uterus was prolapsed, second degree, and twice its normal size. Respondent's impression after examination was SUI, uterine prolapse, and enlarged uterus with a plan for TAH, possible US-0 and anterior and posterior repair. Respondent admitted patient to Waterman on May 24, 1983 with an admitting diagnosis of enlarged uterus and uterine prolapse. Both the preoperative and postoperative diagnosis was uterine prolapse, cytocele and rectocele. On May 24, 1983, the Respondent performed a TAH, US-0 and anterior suspension. Although Respondent's discharge summary indicates that he performed a BS-0 and posterior repair, this was not done, and it was Respondent's error showing that it was done. While a rectocele can only be properly repaired vaginally, a mild to moderate cystocele may be properly repaired abdominally. There was sufficient evidence to show that the anterior suspension performed by Respondent repaired the cystocele and that the diagnosis of a rectocele by Respondent was incorrect, and no repair was needed. While further testing may have been the prudent approach for this patient, there is sufficient evidence to show that Respondent's decision to perform a TAH on this patient was practicing within acceptable medical standards, considering that the patient was desirous of solving her problem with a hysterectomy after having alternative solutions explained to her. Because the patient's medical history, physical examination, the operative notes and discharge summary are very brief and do not adequately describe the patient's condition and present several inconsistencies as to what the actual diagnosis and physical findings were, the records do not justify the course of treatment that this patient received. Patient E. E. W., Medical Records No. 02-37-74 E. E. W. is one of Respondent's female patients born October 20, 1949, who Respondent describes as presenting a complaint of dysfunctional uterine bleeding that has not been relieved by two previous D&C, the last performed by Respondent and the first performed by her previous physician. Upon examination the Respondent found an enlarged uterus that was antiflexed. Respondent's impression was dysfunctional bleeding with a plan for a TAH. Patient was admitted to Waterman on May 4, 1982 with the admitting diagnosis of dysfunctional uterine bleeding. Both the preoperative and postoperative diagnosis was dysfunctional uterine bleeding. The circulator nurse describes the procedures as a supracervical abdominal hysterectomy. The pathology report indicates a uterus without a cervix. However, further in the pathology report it refers to the cervix which indicated the presence of the cervix. The Anesthesiologist refers to the procedure as an abdominal hysterectomy in the anesthesia record. The Respondent described the procedure as a TAH. There is sufficient evidence to show that the Respondent performed a TAH on this patient notwithstanding the confusion created by the circulator nurse's description of the procedure or the confusion created by the pathology report. While there may be some inconsistencies between Respondent's records and the operating room case record, filed by the circulator nurse, and the pathology report, there is sufficient evidence to show that the records justify the course of treatment given this patient by Respondent. Patient S. J. M., Medical Records No. 04-33-93 S. J. M. was one of Respondent's female patients born October 7, 1955 (approximately 27 years old at time of treatment) who Respondent describes as presenting a complaint of severe lower quadrant pain. This pain has persisted for many years and is getting worse. Patient feels as if she is carrying weight and like her bottom is "falling out". Patient has been treated with antibiotics and pain medication. Patient has been treated for PID. Upon examination Respondent's impression was a second degree uterine prolapse and that tubes and ovaries were normal size. Notwithstanding Respondent's impression that the tubes and ovaries were of normal size and that the procedure would be sterilizing, the patient elected surgery because of the severe pain she was experiencing. Patient was admitted to Waterman and scheduled for a TAH and possible US-0, depending upon findings at time of surgery. On March 30, 1983 Respondent performed a TAH using the "open technique". The admitting diagnosis was uterine prolapse and chronic PID. Both the preoperative and postoperative diagnosis was DUB and uterine prolapse as was the final diagnosis. There is no explanation as to why chronic PID appeared as a diagnosis. There is no explanation in the patient's records as to why Respondent did no further diagnostic testing of this patient such as a diagnostic laparoscopy, commonly referred to as "belly button surgery, where you take a "look-see" inside or a D&C since DUB was indicated, before performing a TAH on a 27 year old female. There was sufficient evidence in the record to show that the pain was caused by the prolapsed uterus and that although further diagnostic testing may have been prudent, failure to do so did not result in practicing medicine below acceptable standards when considering the patient's desire to have a hysterectomy and be rid of pain and her refusal to have a D&C. There is no evidence in the record to show that the patient's problem was not corrected by the TAH. There was sufficient evidence in the record to show the Respondent was practicing within acceptable medical standards. However, the inconsistencies and the lack of information in the records, result in the records failing to justify the course of treatment for this patient, even considering the addendum prepared several months after the operation as a replacement for the physical and history dictated earlier by the Respondent which was apparently lost by the hospital. Patient A. R. S., Medical Records No. 03-69-54 A. R. S. was one of Respondent's female patients born September 15, 1915 who Respondent, upon examination, describes as presenting a third degree uterine prolapse with cervix visible at the introitus. Respondent noted some cervicitis and atrophy of the vaginal mucosa. The plan for patient was a TAH and BS-O. Patient was admitted to Waterman on June 23, 1981 and Respondent performed a TAH and BS-O on June 24, 1981 using the "open technique". Postoperatively the patient developed persistent bleeding from the vaginal cuff and was taken back to operating room where Respondent did a suture ligation of the vaginal cuff bleeder. In performing the suture ligation of the vaginal cuff bleeder, the suture caught the bowel in two points in mid ileum causing a small obstruction of the bowel. There was no looping of the bowel by the suture. Nor was there any evidence of mucosal tears. A surgeon was called in and the obstruction of the bowel removed by cutting the suture and the serosa repaired. The patient continued to experience some problem but within a few days was released. There is insufficient evidence to show that Respondent was practicing medicine below acceptable medical standards when he performed the TAH and BS-O or when he inadvertently "nicked" the bowel loop in two places causing an obstruction when suturing off the vaginal cuff bleeder. The admitting, preoperative and postoperative diagnosis was third degree uterine prolapse. The final diagnosis was third degree uterine prolapse. The final diagnosis was third degree uterine prolapse, small bowel obstruction, leiomyoma of the uterus and urinary tract infection. There is sufficient evidence to show that Respondent corrected patient's initial problem when he performed the TAH using the "open technique" and the BS-O. While the documentation in the patient's records is brief, there is sufficient evidence to show justification for the course of treatment of this patient. Respondent left his practice in Eustis, Florida in 1984 and no longer practices obstetrics on gynecology. Since 1984 Respondent has completed residency training in preventive medicine and public health and is in the process of writing his thesis for a masters degree in Public Health at the University of Miami. Respondent is presently working in ambulatory care centers doing some primary care but mostly cuts, bruise, sore throats, etc. (walk-ins). There was no evidence of any previous complaints against Respondent or any malpractice judgments entered against him. There was no evidence that any patient material to this proceeding was exposed to any injury or potential injury or that any patient was ever harmed by Respondent's treatment. There was no evidence to show that Respondent's treatment of any patient material to this proceeding was for the sole purpose of financial benefit. There was no evidence to show any prior offense by Respondent or any prior disciplinary history. 126 There is sufficient evidence to show that Respondent kept the necessary patient records in each case, but the records were insufficient to justify the course of treatment in some instances.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and Rule 21M- 20.001, Florida Administrative Code, Disciplinary Guidelines, it is, therefore, RECOMMENDED that the Board enter a Final Order finding Respondent, David A. Lasseter, M.D., guilty of violating Section 458.331(1)(n), Florida Statutes (1979), now Section 458.331(1)(m), Florida Statutes (1987), and for such violation impose an administrative fine of $1,000.00 and suspend his license to practice medicine for a period of one year, stay the suspension, and place the Respondent on probation for a period of two years with conditions the Board deems appropriate, including, but not limited to, continuing education in record keeping and restrictions on the practice of gynecology. It is further RECOMMENDED that Count I and Count III of the Administrative Complaint be DISMISSED. DONE AND ENTERED this 15th day of February, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearing this 15th day of February, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 87-0893 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-2. Adopted in Findings of Fact 1 and 2, respectively. 3.-11. These paragraphs contain a discussion of what documentation should be contained in a patient's records and where facts are stated they have been covered in the Findings of Fact under individual patients in the Recommended Order, otherwise they have been rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 12.-17. (Patient No. 03-53-61). Adopted in Findings of Fact 10 through 18, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 18.-28. (Patient No. 03-13-09). Adopted in Findings of Fact 19 through 24, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 29.-33. (Patient No. 03-87-63). Adopted in Findings of Fact 25 through 35, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 34.-38. (Patient No. 01-82-88). Adopted in Findings of Fact 36 through 41, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 39.-44. (Patient No. 03-35-38). Adopted in Findings of Fact 42 through 48, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 45.-50. (Patient No. 02-47-14). Adopted in Findings of Fact 49 through 53, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 51.-61. (Patient No. 03-43-34). Adopted in Findings of Fact 54 through 62, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 62.-65. (Patient No. 04-36-70). Adopted in Findings of Fact 63 through 69, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 66.-70. (Patient No. 03-92-49). Adopted in Findings of Fact 70 through 79, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. *71. (Patient No. 01-37-65). Adopted in Findings of Fact 80 through 83, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. *71-80. (Patient No. 01-98-39). Adopted in Findings of Fact 84 through 90, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 81.-85. (Patient No. 02-37-74). Adopted in Findings of Fact 91 through 99, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 86.-95. (Patient No. 04-33-93). Adopted in Findings of Fact 100 through 108, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 96.-105. (Patient No. 03-69-54). Adopted by Findings of Fact 109 through 118, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. *There were two (2) paragraphs numbered 71. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent Covered in the Preliminary Statement since Petitioner had dismissed Count III at the hearing. Adopted in Finding of Fact 1. Adopted in Findings of Fact 122 and 125, as modified. 4.-5. Adopted in Finding of Fact 3, as modified, otherwise rejected as immaterial or irrelevant or unnecessary or subordinate. The balance of Respondent's "Findings of Fact" are listed alphabetically "A" through "N" which cover each patient material to this proceeding. Generally, the Respondent "findings" are restatements of testimony or restatements of allegations made my Petitioner or discusses what the experts may have agreed upon without stating the facts. However, where possible I have treated them as statement of facts and have responded to them in numbered paragraphs under each patient in the same order as Respondent. Where these facts have not been adopted they were rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. COPIES FURNISHED: Dorothy Faircloth Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Kenneth Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0750 Jack M. Larkin, Esquire 806 Jackson Street Tampa, Florida 33602 Salvatore A. Carpino, Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609 Stephanie A. Daniel Chief Medical Attorney Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether Respondent's license to practice medicine should be suspended, revoked or the licensee otherwise disciplined for alleged violations of Chapter 450, Florida Statutes, as set forth in the Amended Administrative Complaint dated March 1, 1984. The Amended Administrative Complaint in this proceeding alleges that Respondent, either individually or in concert with other attending physicians, ordered or prescribed certain nephrotoxic drugs to a patient who suffered from renal impairment, "that Respondent failed to appropriately monitor such medication or its effects," and that the patient suffered renal failure and vestibular and cochlear impairment. It is alleged in the complaint that Respondent therefore violated Section 458.331(1)(t) Florida Statutes, by committing gross or repeated malpractice or failure to practice medicine at an acceptable level of care, skill, and treatment. The complaint also alleges that Respondent altered patient records by inserting false laboratory reports, additional progress notes, and other additions, and failed to appropriately document the justification for the patient's course of treatment, in violation of Section 458.331(1)(i),(1), and Florida Statutes. At the hearing, Petitioner presented the testimony of 9 witnesses and submitted 7 exhibits in evidence. Respondent called 5 witnesses, and the parties stipulated to the expected testimony of Dr. Maynard Taylor. During the course of the hearing, Petitioner introduced into evidence a deposition of Respondent which was taken in a civil proceeding in the Pasco County Circuit Court to which Respondent was not a party, but which involved the same medical treatment provided to patient Michael Marotta that resulted in the Administrative Complaint herein. (Petitioner's Exhibit 3) The Hearing Officer determined that any admissions made by the Respondent that are reflected in the deposition were admissible in this proceeding pursuant to Section 90.803(18), Florida Statutes. Petitioner submitted a posthearing list of purported admissions contained in the deposition, and Respondent filed a response thereto conceding that some of the statements by Respondent constituted admissions and that others did not. Those statements of Respondent which are deemed to constitute admissions are included in the following findings of fact. Petitioner also sought to have its Request for Admissions deemed admitted pursuant to Rule 1.370, Florida Rules of Civil Procedure, due to Respondent's untimely response thereto. Respondent opposed Petitioner's request on the ground that his response was timely under the rules of discovery and, even if such rules were inapplicable in an administrative proceeding, he should be granted relief due to excusable neglect or inadvertence. Although Respondent's claims are not deemed meritorious, certain of the requests for admissions which were denied by Respondent were not in conformance with the evidence presented at the hearing. Those admissions which are properly considered to be within the scope of discovery requests are reflected in the following findings of fact. The proposed recommended orders filed by the parties have been fully considered and those portions thereof not adopted herein are considered to be either unnecessary or irrelevant, or unsupported in law or fact.
Findings Of Fact Respondent Nrisingha Das Mukherjee is licensed to practice medicine in the State of Florida, and was so licensed at all times material to the allegations in the Amended Administrative Complaint. On October 1, 1979, Michael Marotta, then sixty years old, was admitted to the West Pasco Hospital, New Port Richey, Florida, by Dr. Jack Lund. His complaints were a severe cough and chest pains. He had experienced shortness of breath with increasing severity for several days prior to admission, with a productive cough and generalized malaise. He had a long-standing pulmonary history, including tuberculosis at age twenty, with right lower partial lobectomy in 1949. He had been treated for hypertension since 1954 or 1955. The physician's admission diagnosis was bronchial pneumonia. (Testimony of Michael Marotta, Reines, Petitioner's Exhibit 1) During Marotta's hospitalization, it was determined by Dr. Lund that he had cancer of the colon. Dr. Lund then contacted the Respondent on October 9, 1979, for assistance with the surgical management of the patient. Respondent determined that surgery was required, but called in Dr. Jeffrey Reines, a cardiologist and internist, for a consultation on October 10, 1979. (Testimony of Lund, Reines, Petitioner's Exhibit 1) Dr. Reines examined the patient and his consultation report reflected impressions of atherosclerosis, possible coronary artery obstructive disease, chronic restrictive pulmonary disease, chronic obstructive pulmonary disease, resolving bronchitis or pneumonia, tachycardia, probable cecal carcinoma and an abnormal cardiogram. He found that the patient was a high-risk candidate for the contemplated surgical procedure because of his cardiac status and poor pulmonary status, and therefore felt it might be necessary to postpone the surgery for a short period of time for transfusional therapy, pulmonary function testing, and pulmonary psysiotherapy. (Testimony of Reines, Petitioner's Exhibit 1) As a result of Dr. Reines' recommendations, surgery was postponed until October 15, 1979, at which time Respondent performed an exploratory laparotomy, a hemicolectomy, and a cholecystectomy on patient Marotta. During surgery, the patient experienced an episode of bradycardia for a short period of time whereby there was a decrease in the patient's heart rate and blood pressure. (Testimony of Reines, Petitioner's Exhibit 1) After surgery, the patient suffered acute renal failure and he was transferred on October 16, 1979, to Community Hospital in New Port Richey for dialysis treatment. Since that time, he has had to remain on dialysis, and additionally has suffered impairment in balance and hearing functions. Marotta had never previously experienced kidney, balance or hearing problems. (Testimony of Reines, Michael Marotta, Marie Marotta, Petitioner's Exhibit 1) Prior to the time that Respondent entered the case on October 9, 1979, Dr. Lund had prescribed drug therapy, including garamycin, penicillin, lasix, and lanoxin. Additionally, the patient was given an IV pyelogram (IVP) and cholecystogram which are used to determine kidney and gallbladder functions. Respondent prescribed erythromycin, neomycin, keflin, and utilized a neomycin wash during surgery. Prior to surgery, Respondent had also ordered an aminoglycocide for the purpose of cleansing the bowel of gram negative organisms. Dr. Reines had also ordered garamycin for the patient prior to surgery. After surgery, Respondent prescribed teflin, gentamycin, and lasix. However, all drugs were discontinued on October 16, 1979. (Testimony of Reines, Petitioner's Exhibit 1) The antibiotic and other drugs used in the treatment of Marotta are potentially nephrotoxic, particularly when used by patients with impaired renal function. In addition otoxicity can occur in patients with preexisting renal damage who are treated with garamycin. It is therefore necessary that close monitoring of renal function be maintained even in patients with normal renal function if they develop evidence of nitrogen retention, as shown by laboratory tests. Neomycin presents similar problems and concurrent use of the two drugs, together with diuretics such as lasix, should be monitored closely for patients with impaired renal function. (Testimony of Willey, Petitioner's Exhibit 1, 4) Tests performed on Michael Marotta when he was admitted to West Pasco Hospital indicated that there might be some kidney function impairment. However, during the course of treatment, his kidneys were monitored by standard tests and his kidney function was deemed to be adequate until subsequent to the surgical procedure. Conflicting evidence was received at the hearing concerning the adequacy of such testing. In addition, false BUN and creatinine test results purporting to have been performed on October 3, 5, and 7, 1979, were prepared and made a part of Marotta's medical record by an unknown person at an unknown time subsequent to the period of hospitalization. However, it is found that insufficient evidence was presented to establish that Respondent failed to adequately monitor the patient's condition during the period in which he provided treatment. (Testimony of Willey, Reines, Stadnitski, Shaneyfelt, Downey, Barr, Abbey, Petitioner's Exhibits 1, 3-5, 7) Although the medications ordered by Respondent, in conjunction with those ordered by the other physicians in the case had potential nephrotoxic effect, it is found that they were administered as necessary to prevent serious infection in a patient who had advanced cancer. In such a situation, every effort must be made to prevent such infection by the use of antibiotics. In the opinion of an expert in the field of surgery, Dr. Joseph Abbey, the use of such medications in such an instance constitutes a calculated risk which is acceptable if the patient is well hydrated and monitored closely. His opinion conforms with that of Dr. Reines, the internist, who testified that the patient was in a life-threatening situation due to his overall poor physical condition which justified use of the medications in question because all of the patient's organs were threatened and he otherwise would have been subjected to peritonitis. He also felt that if the patient had been taken off diuretics, he probably would have gone into congestive heart failure. Since the patient had acute tracheal bronchitis, he felt that no less toxic antibiotics could have been given to the patient than were used during the course of treatment. (Testimony of Abbey, Reines) Dr. Reines was also of the belief that the patient's renal failure was exclusively caused bye the bradycardia episode that had occurred during surgery. This opinion was disputed by Petitioner's expert pathologist, Dr. Edward Willey, who testified that the kidney failure had been caused by the cumulative effects of toxic drugs and dyes administered to the patient. He was, of the opinion that the period of bradycardia had a relatively insignificant effect on the patient's renal condition. However, the nephrologist who examined Marotta on October 16, 1979, was of the view that renal failure was "probably secondary to possible hypotensive episode intra-operatively and nephrotoxic drugs." (Testimony of Reines, Willey, Petitioner's Exhibit 1) At some undetermined time after Respondent had made original entries in Marotta's medical records, he made additional entries on various pages concerning various laboratory tests that had been made during the course of treatment. No evidence was presented that these late entries were inaccurate or misleading. Additional late entries were made on several pages of the record, including the signed patient consent to surgery form on October 14, 1979. Paragraph 6 of the printed form reflected that the nature and purpose of the operation, possible alternative methods of treatment, the risks involved, and the possibility of complications had been fully explained. At the bottom of the form in handwriting, Respondent had added a handwritten note stating that he had explained in detail the pros and cons of surgery to the patient, and that the mortality and morbidity of the surgery and medical treatment had been discussed. In several other instances, Respondent had added similar notes in handwriting on pages of the record stating that he had discussed with the patient and/or his family the "bad risks involved for surgery and medical management," "the risk of surgery in the face of poor lung function and kidney function," and "Bowel prep with neo and Erythromicin discussed with patient - risk explained." At least one of these late entries had been made sometime in 1981 after the records had been numbered by hospital personnel. One of the other entries reflected the correction of the erroneous date of "10/10/80" to 10/10/79. All of the entries purported to have been made on dates during October 1979. Although it is not unusual for physicians to make late entries to complete the hospital records after a patient is discharged, and to date the delayed entry as the date that treatment was given, normally this is accomplished in a relatively short period of time unless there are multiple physicians involved in the case. It would be rare that an entry was dated over a year after discharge of the patient. Both Michael Marotta and his wife denied that they were ever advised by Respondent that the medications in question were dangerous to or could affect the kidneys. (Testimony of Shaneyfelt, Robinson, Michael Marotta, Marie Marotta, Petitioner's Exhibits 1, 6) Respondent has a reputation in the local medical community as a competent and respected surgeon since his arrival in New Port Richey some five or six years ago. (Testimony of Marlow, Lincer, Wright, Stipulated testimony of Abbey)
Recommendation A hearing was held in the above captioned matter, after due notice, at New Port Richey, Florida, on March 13-14, 1984, before Thomas C. Oldham, Hearing Officer.
