Findings Of Fact The Petitioner is the state agency charged by statute with regulating the practice of medicine in Florida. At all times material to this case, John Isaac Delgado (Respondent) has been a physician in the state, holding Florida license number ME 0054871. The Respondent's last address of record is 7820 North Armenia Avenue, Tampa, Florida, 33629. The Respondent has been licensed to practice in Florida since 1989. At about 8:30 p.m. on February 9, 1992, Patient W. S. (Patient) presented to the Emergency Room at St. Joseph's Hospital, Tampa, apparently complaining of right lower quadrant pain. Immediately prior to being seen at the emergency room, the Patient had been playing cards with friends and had apparently fainted. The Patient, a 74 year old obese white male, had a history of diabetes, coronary artery disease and had a previous myocardial infarction. At the emergency room, the Patient was initially examined by John C. Siano, M.D. Dr. Siano ordered chest and abdominal x-rays. The Respondent was the internist on call at the time the Patient was examined in the emergency room. Dr. Siano contacted the Respondent and notified him of the situation. The Respondent examined the Patient at about 10 p.m. The examination was extensively documented. At the time the Respondent initially examined the Patient, the Patient provided an incomplete summary of his symptoms. The Patient had apparently informed emergency room personnel of severe pain; however, this information was not provided to the Respondent. The Respondent was aware only of intermittent abdominal pain. The Patient's emergency room records were missing at the time of the Respondent's examination. The Respondent unsuccessfully attempted to locate the Patient's records during his examination of the patient. Upon examination, the Respondent determined that the Patient's blood pressure was within normal range and was stable. The Patient was alert and oriented. Vital signs were normal. The patient appeared to be in stable condition. While in the emergency room, the Patient had a bowel movement which tested positive for the presence of blood. A nasogastric tube exiting from the Patient indicated "coffee grounds" material. These factors are indicative of a gastrointestinal problem. The presence of blood in the intestinal tract and abdominal pain is indicative of a gastrointestinal disorder. The evidence fails to establish that the patient presented an emergency condition at the time of the Respondent's examination. Back pain is a symptom of an expanding abdominal aortic aneurysm. An expanding aneurysm presses against nerves and muscle in the back and sides of a patient. In this case, the aneurysm was of considerable size; nonetheless, the evidence fails to establish that the Patient informed the Respondent of severe back pain. Severe continuing abdominal pain may be a symptom of a ruptured abdominal aortic aneurysm. The evidence fails to establish that the Patient informed the Respondent of severe continuing abdominal pain. There was no palpable pulsatile mass in the Patient's abdomen which would have been indicative of an aneurysm. There was no "bruit" sound emanating from the patient's abdomen. Such sounds are indicative of an aneurysm. There was no asymmetry of pulses in the Patient's legs which would have been indicative of the aneurysm. Hypotension, such as may result in fainting, can be indicative of an aneurysm. The patient was hypotensive when he arrived at the emergency room; however, treatment with intravenous fluids brought the Patient's pressure back to a normal range within a few minutes, indicating that internal bleeding was not significant. Based on the symptoms described by the patient and on review of the patient's condition, the Respondent's tentative diagnosis was upper gastrointestinal bleeding, likely peptic ulcer disease with bleeding secondary to chronic aspirin usage and colonic polyps. There was also a suggestion of acute diverticulitis with associated bleeding. The Respondent ordered a series of abdominal x-rays be taken. The Respondent ordered appropriate diagnostic studies based on his tentative diagnosis. The tests were scheduled for the morning. The Respondent also requested a surgical consultation, which was also scheduled for the morning. Based on the examination and discussion with Dr. Siano, the Respondent admitted the Patient to a regular floor for further observation. At the time the Patient was admitted, the Respondent had not reviewed the results of the abdominal x-rays. The Respondent did not review the x-rays prior to leaving the hospital that night. The evidence is insufficient to establish that the Respondent's failure to review the x-rays prior to admission or prior to leaving the hospital for the night violated the acceptable standard of care. Based on the patient's condition as expressed to the Respondent and on the results of the examination, the evidence fails to establish that the Respondent should have diagnosed the situation as an aneurysm. The mere existence of an aneurysm is not a surgical emergency. Whether to surgically treat an aneurysm depends on a number of other factors. A ruptured aneurysm is an emergency life threatening condition. Time is critical when responding to a ruptured aneurysm. The evidence is insufficient to establish that the Respondent knew or should have known that the Patient was suffering from a ruptured aneurysm. In the morning of February 10, 1992, a general surgical consultation was done by Frederick Reddy, M.D. Dr. Reddy examined the patient and reviewed the abdominal x-rays which had been taken on the Respondent's orders. According to Dr. Reddy, at the time of his exam the patient complained of intermittent abdominal pain, and said that he had a history of back pain, but did not complain of back pain at that time. Dr. Reddy's review of the x-rays indicated the presence of calcification. While calcification is indicative of an possible aneurysm, the evidence fails to establish that the Patient's aneurysm is clearly indicated by the x-rays. Dr. Reddy saw no indication of rupture, but referred the case to a radiologist and ordered a CT scan on the radiologist's recommendation. The CT scan indicated that an aneurysm had ruptured. The Patient was taken to surgery where G. K. James, M.D. repaired the ruptured aneurysm and performed an aortobifemoral bypass graft. The Patient's condition deteriorated and he expired on February 10, 1992. The evidence fails to establish that the outcome of the case would have been different had the Respondent diagnosed the problem as a ruptured abdominal aortic aneurysm or had the surgical procedure been performed at an earlier time after the Patient's arrival at the hospital emergency room.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Agency for Health Care Administration enter a Final Order dismissing the Administrative Complaint filed in this case. DONE and ENTERED this 27th day of February, 1996, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM, 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 27th day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1981 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 1. Rejected, not supported by cited evidence. Petitioner's exhibit Number 1 identifies the Respondent's address as set forth herein. Rejected. The greater weight of evidence fails to establish that the x-rays revealed the presence of a ruptured aneurysm. The ruptured aneurysm was diagnosed after a CT scan and review by a radiologist. Rejected, subordinate. While the statement that the cited physician always reads his ordered x-rays is correct, the evidence fails to establish that failure to do so is a violation of the acceptable standard of care. Rejected. The cited evidence does not establish that the x-ray "very clearly" suggests the aneurysm. Rejected. The greater weight of the evidence fails to establish that the Patient described pain indicative of an aneurysm to the Respondent. Rejected. No evidence that the Respondent was aware of the statement made by the Patient. Rejected. The greater weight of the evidence fails to establish that the Patient described pain indicative of an aneurysm to the Respondent. Rejected. The greater weight of the evidence fails to establish that the Patient's condition as determined by the Respondent required an immediate consultation. Rejected. The greater weight of the evidence fails to establish that the Patient's condition as determined by the Respondent indicated a course of treatment other than as set by the Respondent. Rejected, subordinate. Rejected. Not supported by the greater weight of credible and persuasive evidence. Respondent's Proposed Findings of Fact. The Respondent's proposed findings of fact are set forth in unnumbered paragraphs, many of which fail to contain citation to the record as required by Rule 60Q-2.031(3), Florida Administrative Code. Proposed findings which cite to the record are accepted as modified and incorporated in the Recommended Order, or are otherwise rejected as subordinate or as recitation of testimony. COPIES FURNISHED: Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Dr. Marm Harris, Executive Director Board of Medicine Agency for Health Care Administration Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Steve Rothenburg Senior Attorney Agency for Health Care Administration 9325 Bay Plaza Boulevard, Suite 210 Tampa, Florida 33619 Clifford L. Somers, Esquire 3242 Henderson Boulevard, Suite 301 Tampa, Florida 33609
The Issue An Administrative Complaint dated May 22, 1990, alleges that Respondent violated Section 458.331(1)(t), F.S. by gross or repeated malpractice or the failure 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. More specifically, Petitioner alleges that Respondent undertook certain surgical procedures on patient, R.M., without conducting necessary pre-surgery work up and testing. At the hearing Petitioner voluntarily dismissed remaining allegations in the Complaint, related to a subsequent hospitalization of the same patient. (transcript, pp 13 & 14) The issue for determination is whether Respondent committed the alleged violation, and if so, what discipline is appropriate.
Findings Of Fact Respondent, Irving L. Colvin, M.D., is and has been at all times material hereto, a licensed physician, having been issued license number ME0008095 by the State of Florida. He has practiced in the Central Florida area since 1958, and is a Board-certified surgeon. R.M., a 35 year old male, became a patient of Dr. Colvin in 1985, when he complained of right upper quadrant pain. Gallbladder x-rays were obtained at that time, and several months later when the complaints persisted. In August 1985, Dr. Colvin obtained a sonogram (echo test) of the gallbladder and an upper gastrointestinal series. Blood tests were also taken. The results of these tests did not, in Dr. Colvin's opinion, indicate a need for surgery, and the patient was treated symptomatically. R.M. continued to complain of pain in 1986 and was treated symptomatically. He was seen by another internist and a gastroenterologist and was placed on several medications. None of the medications appeared to relieve his pain, and he visited Dr. Colvin again in June 1988, with the same complaints: recurring episodes of right upper quadrant pain radiating to the back. Laboratory tests were done and some jaundice was found. His serum bilirubin was elevated and was treated symptomatically for a couple of weeks, until the patient was admitted to AMI Medical Center in Orlando for exploratory surgery in July 1988. None of the tests conducted prior to the surgery revealed the existence of gallstones. Three gallbladder x-rays were performed between 1985 and 1988. At least one sonogram was conducted, as well as blood tests and upper gastrointestinal series. Dr. Colvin considered that the tests ruled out other bases for the recurring complaints and clinically concluded that the patient had chronic cholecystitis (gallbladder disease) with bile duct obstruction and possibly intermittent stones. By the time of the surgery, the patient indicated he was tired of putting up with the pain and wanted something done other than the medications. At Dr. Colvin's request, the morning of surgery, Dr. Talal Hilal, a gastroenterologist, conducted an endoscopy to rule out other causes of the intermittent jaundice. This consisted in the insertion of a tube through the mouth and esophagus, down to the stomach and to the small intestine where the gallbladder is found in the duodenum. Dr. Hilal's findings were essentially normal, and he recommended that Dr. Colvin proceed to surgically explore the common bile duct. The surgery conducted by Dr. Colvin included exploration of the duct with a choledoscope and removal of the gallbladder. The surgery was appropriate as the gallbladder was diseased. Post operative diagnoses were: chronic acalculus cholecystitis, chronic pancreatitus and stenosis (constriction) of the distal common bile duct and sphincter of odi. None of the experts claims that the surgery should not have been performed. Rather, the agency's two experts, who reviewed the medical files only, claim that insufficient work-up was completed prior to the surgery. The original function of the gallbladder was to store bile in lower animals, which has carried over into a gallbladder in human beings and which may or may not have very much function. Still, invasive procedures should be avoided unless they are necessary, as they can be life-threatening. The agency's experts claim that less invasive procedures should have been tried prior to surgery. More specifically, they suggest that an operative cholangiogram should have been done. That is a procedure wherein a small tube is inserted through a small nick in the part of the gallbladder that joins the common bile duct. Dye is injected, and x-rays of the duct are taken. They also suggest other procedures, including sonography or ultrasound, hiatiscan, CAT scan, a study of the bilirubin, and ERCP (endoscopic retrograde cholangiopancreatogram). At least two of these procedures, sonography and bilirubin tests, were obtained by Dr. Colvin prior to surgery. By the time that he performed surgery on R.M., Dr. Colvin surmised through his clinical observations that the patient's gallbladder disease was not likely caused by stones. Chronic acalculus cholecystitis is a specific disease characterized by the absence of stones but still caused by an inflammatory reaction. From five to ten percent of gallbladder cholecystitis exists without the presence of stones. Diagnosis of the disease is made clinically, through the elimination of possibilities of other diseases, by skillfully feeling the patient and by listening to his complaints. Typically, the symptoms of chronic acalculus cholecystitis are upper abdominal pain, sometimes radiating to the back, digestive disturbances and low grade fever. The disease recurs chronically, with subsidence of the symptoms from time to time. There is substantial difference of opinion on the utility of the multiple tests suggested by the agency's experts. A cholangiogram is helpful when stones are strongly suspected, as it indicates how many stones exist, so that surgery will remove them all. While not as life-threatening as the exploratory surgery, this procedure also has risks, including inflamation of the pancreas, and it still involves opening the abdomen. Dr. Colvin already had the advantage of several sonagrams and X-rays indicating that stones did not exist. He had the laboratory tests revealing fluctuating bilirubin levels and strongly indicating the need for bile duct exploration. The hiatiscan, involving a nuclear radiation determination of obstructions, is most commonly used in cases of acute, rather than chronic cholecystitis. If the ERCP needed to have been done, Dr. Hilal would have performed it at the time that he did the pre-surgery endoscopy. He did not feel it was necessary and recommended that Dr. Colvin follow his plan for the surgery. A CAT scan would have been very costly and is an inaccurate means of detecting gallstones, detecting less than ten or fifteen percent of existing stones. From his review of the records, Dr. Corwin, an expert witness for the agency, conceded that R.M. probably had chronic cholecystitis. He has never treated a patient with chronic acalculus cholecystytis and stated that he does not consider it an acceptable diagnosis. Dr. Corwin admitted that some people might consider the laboratory tests and endoscopy ordered by Dr. Colvin to be an adequate work-up, and he stated that he would "hedge a little bit" on his own opinion. All of the remaining witnesses, including Dr. Goggin, the agency's other expert, have heard of the disease and consider it a valid diagnosis. This is a case of reasonably prudent physicians disagreeing as to appropriate pre-surgery work-up of a patient. Other than Dr. Colvin, only one witness was personally familiar with the patient. That witness, Dr. Hilal, the gastroenterologist, unequivocally supported Dr. Colvin's handling of the case. Once Dr. Colvin determined clinically that surgical exploration was necessary through his treatment of the patient and through the process of elimination of alternative diagnoses, the other available tests suggested by Drs. Goggin and Corwin were redundant. Petitioner failed to prove that the means by which Respondent reached his clinical diagnosis violates the applicable standard of care.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Board of Medicine enter its final order dismissing the Administrative Complaint against Irving L. Colvin, M.D. DONE AND RECOMMENDED this 28th day of February, 1991, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Divisionof Administrative Hearings this 28th day of February, 1991. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings Adopted in paragraph 1. Adopted in paragraph 7. Adopted in substance in paragraph 5. Adopted in relevant part in paragraph 4. Rejected as irrelevant. Rejected as contrary to the weight of evidence. Rejected as contrary to the weight of evidence. What comprises a "complete history and physical" is not explained, nor is this failure alleged as a violation of Section 458.331, F.S., in the Administrative Complaint. Rejected as immaterial. Rejected as contrary to the weight of evidence. Rejected as cumulative, immaterial (as to elevated alkaline phosphatase level) and contrary to the weight of evidence (as to no evidence of need for exploration). Adopted in substance in paragraph 9. Rejected as immaterial, and contrary to the weight of evidence. Rejected as contrary to the weight of evidence. and Adopted in relevant part in paragraph 5. Adopted in paragraphs 3 and 4. 17.and 18. Rejected, as to the persuasiveness of the two experts' opinion. Respondent's Findings of Fact The Respondent's proposed findings consist of 2 numbered paragraphs. The first is adopted in Recommended finding #1; the second is argument and commentary on the testimony, rather than proposed findings. COPIES FURNISHED: Francesca Small, Esquire Larry G. McPherson, Esquire DPR 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Gary Siegel, Esquire 6500 S. Highway 17-92 Fern Park, FL 32730 Jack McRay, General Counsel DPR 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Dorothy Faircloth Executive Director DPR-Board of Medicine 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792
Findings Of Fact Respondent, William Moats, D.D.S., has been licensed to practice dentistry in the State of Florida since 1969, under license number DN0005263. He practices at his office located at 515 Semoran Boulevard in Casselberry, Florida. On March 28, 1990, the patient, S.T. presented to Dr. Moats for a routine teeth cleaning. S.T. had been a regular patient of Dr. Moats since 1979, including a period when S.T. was a military dependent. During the course of the cleaning, acne lesions around S.T.'s mouth and nose area became irritated and began to bleed. Dr. Moats was concerned about the condition and told the patient he would consult a dermatologist. He then called Enrique M. DeArrigoitia, M.D., a dermatologist whom he has known since his medical service with the Navy. Dr. DeArrigoitia was told that Dr. Moats had a patient in his office with acne lesions, with blackheads, papules and pustules, and some bleeding around his mouth, and was asked what he would suggest. Dr. DeArrigoitia recommended five percent Benzoyl Peroxide and Retin-A, .05 cream to be used sparingly at bedtime. He said that the peroxide could be obtained without a prescription but that Retin-A required one. If necessary, Dr. DeArrigoitia said he would follow the patient. Dr. Moats gave S.T. two prescriptions: Pan Oxyl gel 10% and Retin-A 0.025% gel, refillable "PRN" (as needed, or indefinitely up to the limits of the law). Both prescriptions were legend drugs. These were medications the patient indicated that he had used before under the care of a dermatologist; however, his prescriptions had expired and he had not seen anyone recently for the acne condition. Both prescriptions are typically used to treat acne. Dr. Moats suggested that S.T. make an appointment with Dr. DeArrigoitia. S.T. did not follow up on the suggestion because he was too busy at work. He filled the prescriptions twice, the second time because he had left them in his car and they melted. The two parties each presented a witness qualified as expert in general dentistry. Both experts concurred that the treatment of acne is outside the scope of the practice of dentistry. Dentists may diagnose and treat conditions of the human teeth, jaws or oral- maxillofacial region (generally considered the portion of the face from below the eyes, including the nose, down to the border of the chin and the lower jaw). Just because a condition lies within that anatomy, however, does not bring it within the scope of the practice of dentistry. Dentists are not trained to treat acne. While they do treat regions of the lip area -- typically viral sores or irritations, acne is a condition involving the dermis of the face, neck, shoulders and other parts of the body. Dr. Moats contends that he was not treating acne, but rather was concerned that the open and bleeding lesion was a possible site of infection because of its proximity to the mouth and that it needed attention for the patient's protection. He does not know why he wrote the prescriptions "PRN". He never identified himself to others as anything but a dentist. The prescriptions are written on his prescription pads, printed with his name and address and signed by him, with D.D.S. plainly displayed. He did not consider his action to be outside his practice of dentistry. The patient was not harmed nor was evidence presented of other violations or disciplinary actions involving this Respondent.
Recommendation Based on the foregoing, it is hereby recommended that the Board of Dentistry enter its final order finding that William A. Moats, D.D.S. violated Section 466.028(1)(q), F.S., and imposing a reprimand and fine of $750.00. RECOMMENDED this 20th day of December, 1991, in Tallahassee, Leon County, Florida. COPIES FURNISHED: William Buckhalt, Exec. Dir. DPR-Board of Dentistry 1940 N. Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel DPR 1940 N. Monroe Street Tallahassee, FL 32399-0792 Albert Peacock, Esquire DPR 1940 N. Monroe Street Tallahassee, FL 32399-0792 Dennis F. Fountain, Esquire Suite 250 1250 S. Highway 17-92 Longwood, FL 32750 MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1991.
The Issue The issue in this case is whether Respondent is guilty of gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, and, if so, what penalty should be imposed.
Findings Of Fact At all material times, Respondent has been licensed as a physician in Florida, holding license number ME 0024024. He has not been disciplined previously. R. S. was a 19 year old, about 32-33 weeks' pregnant at the time of the caesarian section. She was admitted at Walker Memorial Hospital with ruptured membranes on the evening of January 6, 1991. She remained in the hospital overnight and was seen by Respondent on the following morning. When admitted, R. S.'s cervix was 2-3 centimeters dilated and partially effaced, or thinned. Her contractions were lasting 30-70 seconds. When seen by Respondent at about 9:15 am on January 7, R. S. was still having mild contractions. Her cervix had dilated to about 4.5 centimeters. Her contractions were about two to three minutes apart and lasted about 40 seconds. The fetal heart tones were good. After 11:00 am, R. S.'s cervix did not dilate further. Respondent checked her several times to confirm that her labor was not progressing, despite adequate labor in terms of the strength, frequency, and duration of the contractions. At the same time, Respondent observed moulding or elongation of the cartiliginous fetal skull in response to the pressures it encountered above the cervix. Through palpitation, Respondent confirmed that the frequency, duration, and strength of the contractions remained adequate. Due to the head-first position of the fetus and absence of other abnormalities, Respondent appropriately concluded that the most likely reason that the labor was not progressing was cephalopelvic disproportion. This is a condition in which the head of the fetus is too large for the pelvic area of the mother. Based on his determination of the adequacy of the contractions and the presence of cephalopelvic disproportion, Respondent decided not to use Pitocin, which is a medication used to stimulate labor. The use of Pitocin is contraindicated when the baby's head is too large for the mother's pelvic area. By 2:00 pm, three hours had passed without further dilation of the cervix. At this time, Respondent decided to perform a caesarian section. A couple of hours later, Respondent performed a caesarian section on R. S. The baby was delivered without complications, and the mother and baby were discharged from the hospital without any problems. Compared to vaginal delivery, a caesarian section involves various risks to the mother and fetus, including injury to the mother or fetus from the anaesthesia or incision. Incidents of aspiration are more common among newborns taken by caesarian section. There is a somewhat increased chance that the mother will have to undergo caesarians for subsequent pregnancies. Also, the duration and cost of hospitalization are greater for a caesarian section. However, Respondent's decision to perform a caesarian after three hours of no progress in labor did not violate the applicable standard of care and did not constitute gross or repeated malpractice. L. C. was a 26 year old in her seventh pregnancy. She had previously delivered three babies at full term and one preterm at about 36 weeks. Normal term is 38-40 weeks. L. C. had suffered spontaneous abortions of two fetuses at two and three months' gestation. Respondent first saw L. C. in February, 1990, and thereafter provided her prenatal care. After June 13, Respondent saw L. C. weekly. In early July, L. C.'s cervix began to dilate and efface. She was hospitalized on July 11, 1990. L. C. presented with definite uterine contractions at about 32.5 weeks' gestation. Her cervix was dilated to 2 cm. Respondent saw L. C. and gave her medications to stop preterm labor by relaxing the uterus. After ruling out preterm contractions, Respondent appropriately diagnosed an incompetent cervix, which is a painless effacement and dilation of the cervix that often leads to preterm delivery. The diagnosis of an incompetent cervix is often based on a patient's history. L. C. had no history of incompetent cervix. However, the diagnosis may also be based on physical findings. L. C.'s cervix was about 80 percent effaced at the time of her hospitalization. Combined with the dilation of two centimeters, she could appropriately be diagnosed as having an incompetent cervix. The primary health risk of an incompetent cervix is a preterm delivery. Premature infants may suffer from a variety of problems stemming from organ immaturity. A factor aggravating the risk is that the hospital in question is in a rural area, contains only about 100 beds, and has no secondary or tertiary facilities for the treatment of neonatals. Weighing these factors, Respondent decided to apply a cervical cerclage. A cerclage involves suturing the cervix shut so that it can withstand the pressure of the fetus without dilating and causing premature delivery. There are risks in the cerclage. A pursestring suture must be placed high in the cervix. There is thus the risk of rupture of the membranes. Infection is another risk. These risks are greater in the presence of greater effacement and dilation, as well as when the membrane is bulging into the cervical area. A cerclage is normally performed at about 24 weeks' gestation. Cerclages are rarely if ever installed at 32 weeks' gestation, as Respondent did in this case. However, the procedure was performed without complications to the mother or fetus. The mother's postoperative contractions were eliminated with medication and did not recur until she delivered a healthy baby at 38 weeks. The baby weighed 6 pounds 14 ounces, which was more than the weight of the babies delivered in any of the mother's four prior live births. Respondent's decision to apply a cerclage at 32 weeks' gestation did not violate the applicable standard of care and did not constitute gross or repeated malpractice.
Recommendation Based upon the foregoing, it is hereby RECOMMENDED that the Board of Medicine enter a final order dismissing the Administrative Complaint. ENTERED on June 6, 1994, in Tallahassee, Florida. ___________________________________ ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on June 6, 1994. APPENDIX Treatment Accorded Proposed Findings of Petitioner 1-5: adopted or adopted in substance. 6-8: rejected as unsupported by the appropriate weight of the evidence. 9: adopted or adopted in substance. 10-11: rejected as unsupported by the appropriate weight of the evidence. 12-20: adopted or adopted in substance. 21-22: rejected as unsupported by the appropriate weight of the evidence. 23: rejected as recitation of evidence. 24: rejected as unsupported by the appropriate weight of the evidence. 25: rejected as subordinate. 26: rejected as recitation of evidence. 27: rejected as unsupported by the appropriate weight of the evidence. 28-33: adopted or adopted in substance. 34: rejected as unsupported by the appropriate weight of the evidence. 35-43: adopted or adopted in substance. 44: rejected as unsupported by the appropriate weight of the evidence. 45: rejected as irrelevant. 46: adopted or adopted in substance. 47-51: rejected as recitation of evidence. 52: rejected as unsupported by the appropriate weight of the evidence. Treatment Accorded Proposed Findings of Respondent 1-9: adopted or adopted in substance. 10-19: rejected as recitation of evidence and subordinate. 20-25: adopted or adopted in substance. 26-28: rejected as recitation of evidence and subordinate. 29-30: adopted or adopted in substance. 31: rejected as recitation of evidence. 32-33: adopted or adopted in substance. 34: rejected as recitation of evidence and subordinate. COPIES FURNISHED: Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Dorothy Faircloth Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792 Francesca Plendl, Senior Attorney Department of Business and Professional Regulation 1940 N. Monroe St. Tallahassee, FL 32399-0750 Grover C. Freeman Freeman, Hunter & Malloy 201 E. Kennedy Blvd., Ste. 1350 Tampa, FL 33602
The Issue The issue in this case is whether the license of Allen B. Erde, M.D., should be disciplined by the Florida Board of Medicine based upon actions he is alleged to have taken, or failed to have taken, between August and November, 1986, in the care and treatment of his patient, C.W.
Findings Of Fact At all times material hereto, Respondent has been licensed as a physician in the State Of Florida, having been issued license number ME-0008625. Respondent was C.W.'s obstetrician during her pregnancy in 1986, and initially examined her on August 26, 1986, when she was six weeks pregnant. During this initial visit, C.W. was informed by Respondent that her pregnancy was progressing normally. At her second visit, on September 23, 1986, Respondent detected no fetal heartbeat. However, he informed C.W. that this was not a problem. He requested that she bring her husband with her for her third visit so that they both could hear the heartbeat. Prior to her third visit, C.W. saw Respondent in his office on October 6, 1986, complaining of urinary problems, and a stiff neck and back. Respondent treated her for a urinary tract infection. Later that same day she began to bleed vaginally, passed clots and experienced cramping pains. She then saw Respondent at the Winter Haven Hospital emergency room, but was told that nothing seemed wrong. Respondent advised her simply to go home, put her feet up, and rest. There were several other occasions during October, 1986, when C.W. experienced cramping and vaginal bleeding. She called Respondent each time to express her concerns, but was told simply to lie down, and keep her feet up. On October 22, 1986, C.W. and her husband visited Respondent for her third scheduled visit. No heartbeat was heard. Respondent again told C.W. that there was no cause for concern, the baby was just small and probably behind her pelvic bone. C.W. was presumably 14 weeks pregnant at this time, but Respondent's office records indicate that the fetus was decreasing in size, there was no weight gain, and no heartone. C.W. continued to experience pain and bleeding, sometimes accompanied by clots. She was not gaining weight, and had none of the other indications of pregnancy which she had experienced in her prior pregnancies. C.W. continued to express concern to Respondent, but his advice remained simply to lie down, and keep her feet up. In response to a five day episode of bleeding, C.W. saw Respondent in his office on November 12, 1986. Although she was 17 weeks pregnant at that time, Respondent's office records indicate a fetus 14 weeks in size. Respondent did not order any fetal viability tests, and there is no evidence in his office record that he considered any testing of the fetus. C.W. saw Respondent for her fourth scheduled visit on November 19, 1986, and, again, no fetal heartbeat was detected. She was still experiencing vaginal bleeding. Her uterus was only 10-12 weeks in size, although she was presumably 19 weeks pregnant at this time. C.W. was distraught, and expressed great concern to Respondent that she was presumably almost five months pregnant and no fetal heartbeat had ever been detected. C.W. demanded that Respondent do something. He then ordered a quantitative Beta-subunit Human Chorionic Gonadotropin blood test to determine her hormone level. On November 2l, 1986, Respondent called C.W. at her place of employment, and informed her that her hormone levels were extremely low, and that she might not have a viable pregnancy. He told her she should keep her next regularly scheduled appointment with him, but if she experienced any severe bleeding or cramping to call him. C.W. left work and became increasingly upset. She contacted him later on that same day for a more complete explanation of what she should expect. Respondent told her that the fetus was "reversing itself and was losing weight instead of gaining." C.W. was not informed by Respondent that the fetus was not viable, and she took his advice to mean that if she was extremely careful there was still a chance of carrying the pregnancy to term. Respondent admitted to the Petitioner's investigator, Jim Bates, that he knew the fetus was dead at this time, but he was trying to let nature take its course, and if she did not abort in two or three months, he would take the fetus. Because she was extremely upset and her friends were concerned about the advice she was receiving from the Respondent, an appointment with another obstetrician, Dr. Vincent Gatto, was made for C.W. by one of her friends. Dr. Gatto saw C.W. on or about November 21, 1986, and after examining her he immediately diagnosed her as having had a missed abortion. A sonogram confirmed this diagnosis. A dilation and curettage was performed on C.W., and subsequent pathological reports revealed remnants of an 8-week fetus. The medical records which Respondent maintained of his care and treatment of C.W. are incomplete and contain discrepancies concerning his evaluation of the patient. They do not reflect C.W.'s numerous telephone calls, or that she was increasingly upset over the course of her pregnancy. There is no delineation of a plan of treatment in these records, or any explanation of the type of treatment he was pursuing for her. There is no explanation or justification in these records of Respondent's failure to order a sonogram or test, other than the one Beta-subunit Human Chorionic Gonadotropin, for C.W., although she repeatedly reported vaginal bleeding and cramping, and there was a continuing inability to detect a fetal heartbeat. Respondent failed to carry out the correct tests on C.W., and therefore, he failed to make a correct diagnosis of missed abortion, or to treat her correctly. He allowed her to carry a dead fetus for almost two months. Retention of the products of a non-viable pregnancy can lead to several complications, including infection, blood clotting and psychological trauma. In fact, this experience caused C.W. severe emotional anguish. In his care and treatment of C.W., Respondent failed to meet the standard of care that is required of a physician practicing under similar conditions and circumstances.
Recommendation Based upon the foregoing, it is recommended that Florida Board of Medicine enter a Final Order suspending Respondent's license to practice medicine for a period of five years, and imposing an administrative fine of $3,000. DONE AND ENTERED this 21st day of August, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1989. APPENDIX (DOAH CASE NO. 88-4785) Rulings on the Petitioner's Proposed Findings of Fact: Adopted in Finding l. Adopted in Finding 2. Adopted in Finding 3. Adopted in Finding 4. Adopted in Finding 5. 6-7. Adopted in Finding 6. Adopted in Finding 7. Adopted in Finding 8. Adopted in Finding 9. Adopted in Finding 10. Adopted in Finding 11. Rejected as irrelevant. 14-17. Adopted in Finding 13. 18-21. Adopted in Finding 12. 22. Adopted in Finding 14. The Respondent did not file Proposed Findings of Fact. COPIES FURNISHED: Mary B. Radkins, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Allen B. Erde, M.D. P. O. Box 1817 Winter Haven, FL 33883-1817 Allen B. Erde, M.D. 198 First Street, South Winter Haven, FL 33880 Dorothy Faircloth Executive Director Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth Easley, General Counsel Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0729
