The Issue Whether on or about March 6, 1978, the Respondent, Ronald M. Tauber, D.O., performed an abortion on Gloria Small at the Orlando Birthing Center, Orlando, Florida; during the course of which procedure, the patient's uterus was perforated and other complications ensued and despite an agreement from a hospital staff member at Orange Memorial Hospital, Orlando, Florida, between that staff member and Respondent to allow the transfer of the patient, Small, to Orange Memorial Hospital for emergency treatment the Respondent did not transfer the patient to the hospital until March 7, 1978, and further, that notwithstanding an emergency hysterectomy operation performed at that hospital, Gloria Small died. It is alleged that should the above-stated facts be proven, the Respondent, Ronald M. Tauber, D.O., would have failed to demonstrate satisfactory professional skill, judgment or knowledge expected of him and to have exhibited an inability to practice osteopathic medicine with reasonable skill and safety and that his professional conduct departed from minimal standards of acceptable and prevailing osteopathic medical practice, in violation of Subsections 459.14 (2)(c) and (m), Florida Statutes. (The Administrative Complaint in this cause contained paragraphs 1 and 2 which were dismissed by the undersigned with leave for the Petitioner to amend. The Petitioner did not undertake such an amendment and the paragraphs 1 and 2 of the Administrative Complaint were not considered in the course of the hearing. Paragraph 5 of the Administrative Complaint was stricken and has not been considered. The phrase found in paragraph 3 of the Administrative Complaint which is constituted of the language "as well as other abortion procedures" was stricken and was not the subject of consideration in the course of the administrative hearing. Finally, the Petitioner moved to withdraw any reference to the substantive allegations found in paragraph 4 of the Administrative complaint pertaining to Subsections 459.14(2)(h), (k), and (n), Florida Statutes, and that motion was granted without opposition from the Respondent.)
Findings Of Fact This cause comes on for consideration based upon the Administrative Complaint filed by the Petitioner, State of Florida, Department of Professional and Occupational Regulation, Florida State Board of Osteopathic Medical Examiners, against Ronald M. Tauber, D.O., Respondent. The date of that Administrative Complaint is April 24, 1978. The dispute to be resolved in the hearing process is as set forth in the issue statement of this Recommended Order. To that end, a formal hearing was held in accordance with the provisions of Subsection 120.57(1), Florida Statutes, during the course of which, testimony and other evidence were presented by the parties. The Petitioner, State of Florida, Department of Professional and Occupational Regulation, Florida State Board of Osteopathic Medical Examiners, is an agency of the State of Florida whose purpose is that of licensure and regulation of those individuals who practice osteopathic medicine in the State of Florida. The Respondent, Ronald M. Tauber, D.O., is licensed by the Petitioner in the State of Florida to practice osteopathic medicine and his license number is 3430. At all times pertinent to the Administrative Complaint, Dr. Tauber was so licensed. The facts in the case reveal that the Respondent in the month of March, 1978, was practicing osteopathic medicine in a facility located at 419 North Magnolia, Orlando, Florida. This particular structure was a building with approximately 9,000 square feet of office space which Dr. Tauber used in the practice of his specialty, obstetrics and gynecology. His type facility has been referred to as a "free standing clinic" that offers among other services elective abortions, to include those performed in the late first trimester or early second trimester of the patient's pregnancy. Some of the equipment in the installation included a maternal fetal monitor, a cardiac monitor and defibulator which were part of a crash cart. The crash cart also contained items for resuscitation of adults and infants, including drugs, tubes, scopes, Laryngoscopes and Ambu bags. There was an operating room with an operating-obstetrical table. There were sources of sterilization by gas and steam. The office also contained instruments for minor gynecologic surgery, to include abortions and laparoscopy. There was an office area used by the Patient Education Coordinator- Counselor who was a member of the Respondent's staff. This Counselor conferred with prospective abortion patients concerning the pros and cons of such a procedure, to include alternatives to pregnancy termination. The office contained a laboratory which had equipment for the performance of blood counts, cultures, urine tests, other chemistry tests, blood typing and blood cross-matching. In connection with the blood work-ups, there was a blood bank refrigerator; however, no arrangements had been consummated for the storage of blood in that refrigerator prior to the abortion which was performed on the patient, Gloria Small, the subject of this complaint. In a related area, the Respondent intended to employ an anesthetist who would give Dr. Tauber the capability of utilizing general anesthesia in his operative procedures. This arrangement had not been made on or before March 6, 1978, and the abortion performed on Gloria Small was without the benefit of any form of general anesthesia. The personnel who worked in the facility in March, 1978, included a full-time registered nurse, a number of part-time registered nurses; a full-time licensed practical nurse, a number of part-time licensed practical nurses; a full-time certified operating room technician; a part-time licensed practical nurse who functioned as a LaMaze instructor and other functions associated with the maternity aspect of the facility; a medical records librarian; a receptionist; a full-time housekeeper; a part-time maintenance man and a business advisor/bookkeeper. Dr. Tauber had arranged for backup personnel in the persons of a pediatrician in the child delivery cases and a medical doctor who specialized in obstetrics and gynecology. These individuals were to assist in the procedures at the clinic and to cover for Dr. Tauber when Dr. Tauber was unavailable. However, the medical doctor in the field of obstetrics and gynecology did not have hospital privileges and neither did Dr. Tauber. There were two other physicians who had agreed to give hospital coverage for Dr. Tauber in complicated cases, but this arrangement excluded abortion procedures. On March 2, 1978, the patient, Gloria Small, was seen by Dr. Tauber and he accepted her case. Ms. Small requested a pregnancy termination and sterilization. During his initial interview and examination, the Respondent took the patient's personal history and conducted a physical examination and determined that the patient was pregnant approximately fourteen to fifteen weeks according to the gestational size. In addition to the physical examination, Dr. Tauber counseled the patient about the abortion and sterilization procedures and indicated alternatives to those procedures and the risks involved in each course that might be pursued. The patient indicated a desire to go forward with the abortion and sterilization procedures and in preparation for the procedures the Respondent ordered certain laboratory work, including hematology; type and Rh and urinalysis. This lab work was performed. Subsequent to this time, the patient was seen by the office counselor and continued to indicate her desire to have the procedures performed and the patient was scheduled for the procedures to be conducted on March 6, 1978. When the patient arrived on the morning of March 6, 1978, she was prepared for the abortion and sterilization procedures to the extent of being sterilly cleaned and having a medication administered to relax the patient. (At the time the Respondent performed the abortion and sterilization procedures on the patient, he had performed a significant number of these procedures before.) When the patient was presented in the operating room, she had been administered Nisentil in the amount of 40 milligrams. This is an analgesic drug designed to decrease the pain during the procedure. The patient was also given Atropine, a parasympathetic, to slow down the digestive track and to decrease the chance of nausea and to retard salivation. Intravenous lines were opened and the patient was given compositions of fluids which had a mineral and sugar content. The doctor was assisted by a scrub technician and there was a circulating registered nurse available. The procedures began at approximately 12:00 noon and were concluded at 1:25 p.m. The patient was dialated and the suction cannula was placed in the uterus and the suction machine turned on, at which point the materials in the uterus began to flow into the suction machine. In view of the advanced stage of the pregnancy, it was then necessary to place various instruments, ring forceps, to withdraw the pregnancy tissue. In the course of the manipulations, placental tissue was observed being brought down. At that point, the patient began to bleed heavily. Dr. Tauber placed the ring forceps into the uterus and the ring forceps went beyond normal depths expected in such an examination of the uterus. This preliminary procedure led to the eventual verification that a perforation had occurred. At this juncture, the doctor was working in the cervical canal. The doctor's response to the apparent perforation was to place the laparoscope and attendant instrument into the abdomen, setting up the procedure with a local anesthesia. When this action was taken, the Respondent, using a fallopian applicator (which was to be used in the sterilization procedure) lifted the uterus and saw a perforation two to four centimeters in length in the right posterior aspect of the lower uterine segment. At this point of observation, the perforation was not bleeding. There was a certain amount of blood in the lower dependent portion of the abdomen which did not measure more than 25 cc and this was consistent with a perforation that was not bleeding. The operating room technician was allowed to visualize the perforation through the laparoscope and the medical doctor who specialized in obstetrics and gynecology was called to assist. While the Respondent was waiting for the arrival of the backup physician, he allowed the operating room technician to assist him by viewing through the laparoscope while the Respondent turned to the vaginal aspect of the procedure and entered the uterus. During the process of the evacuation of the remaining placental tissue, the Respondent placed an instrument through the performation a second time; however, no additional bleeding was observed at that point. The bleeding which had been observed initially had slowed to a continuous ooze and this amount of bleeding caused the Respondent to observe the area of the perforation for an additional period of thirty minutes or more to confirm that the bleeding was not increasing in volume. The backup physician also observed the area of the perforation and consulted with the Respondent about the complication. The dialation and evacuation procedure was completed and the fallope rings applied and when the Respondent was convinced that he didn't have bleeding intra-abdominally, the patient was packed by placing gauze-type material in the vagina, thereby promoting pressure against the bleeding area. (The sequence of observations through the laparoscope that have been mentioned before occurred after the packing had been placed.) During the pendency of the observation, no blood was observed to be coming through the packing. Contemporaneous to the observations, fluids were used to replace the high blood loss. That amount of blood loss was believed to be in the amount of 1500 cc. When the complications occurred in the course of the operation, there was a drop in blood pressure and an increase in the pulse rate. In addition, the pre-operative hemoglobin was 13.5 g.m. as compared to 9.5 g.m. post- operative, and the hemoglobin ranged from around 8.2 g.m. through the higher 8.0 g.m. and lower 9.0 g.m., from the period immediately following the operation until around 5:00 p.m.., March 7, 1978. A more complete detail of the change in blood pressure, pulse rate and hemoglobin count may be found in Petitioner's Composite Exhibit No. 1, which is a copy of the Respondent's case records on the patient, Gloria Small. From an examination of all the vital signs, the patient was hypovolemic to the extent of being in hypovolemic shock following the aforementioned procedures. At the conclusion of the operation, Dr. Tauber instructed his staff to monitor the patient closely, and she remained on the cardiac monitor which had been employed during the operative procedures and the patient's vital signs, to- wit, blood pressure and pulse, were checked frequently. In addition, the staff was instructed to catherize the patient after six hours if the patient did not void and to record the amount of fluid intake and output and to observe the patient for vaginal bleeding. The patient was also given fluids to include dextrose and water and Normasol M, together with certain medication. These instructions were carried out by the staff. Dr. Tauber continued to give the patient fluids and to consider whether the patient should be transfused with whole blood. Around 3:00 p.m. on March 6, 1978, Dr. Tauber decided to infuse the patient with whole blood. He contacted the managing director of the Central Florida Blood Bank to attempt to gain the permission of that organization to provide whole blood for the benefit of the patient, Gloria Small. There had been some preliminary contact with the blood Bank about providing blood for patients of Dr. Tauber, but that arrangement had not been finalized prior to Gloria Small's operation. The managing director conferred with the medical director of the blood bank and a decision was made to honor Dr. Tauber's request for blood. Some delay ensued due to a mix-up on the part of Dr. Tauber's staff on the question of labeling the samples; nonetheless, this problem was rectified and at 6:10 p.m., and again at 7:25 p.m., blood was delivered for the benefit of the patient, Gloria Small, and that blood was infused into the patient. Contrary to the recollection of the Respondent, there is no record of further units of blood being requested by the Respondent, Dr. Tauber, for the benefit of the patient, Gloria Small, and, therefore, officially no such request was made of the blood Bank during the pendency of Dr. Tauber's treatment of the patient. As a consequence, the further treatment which Dr. Tauber gave the patient, Gloria Small, was without the benefit of the immediate availability of further units of blood. As previously stated, Dr. Tauber did not have hospital privileges and had not made any prior arrangement for the patient to be turned over to a physician with hospital privileges, in the event a medical emergency arose which required the hospitalization of the patient, Gloria Small. His first effort at making such an arrangement occurred between 5:00 and 5:30 on March 6, 1978, when he contacted a Dr. Lassiter, a resident in obstetrics and gynecology at the Orange Memorial Hospital, Orlando, Florida. The purpose of such conversation was to arrange for the patient to transfer if her condition worsened. Dr. Lassiter was unable to make this arrangement and it was only after the physician in charge had been conferred with that it was arranged for the patient, Gloria Small, to be accepted at Orange Memorial Hospital. This agreement was reached by the Respondent and the physician in charge, one Dr. Herran. Dr. Herran then confirmed this agreement with Dr. Lassiter, the resident, and instructed Dr. Lassiter to accept the patient, Gloria Small, if she were transferred and to immediately notify Dr. Herran if such transfer did occur. Dr. Tauber left his clinic around midnight of the morning of March 7, 1978, and left the patient in charge of a staff nurse. He returned to the hospital on the morning of March 7, 1978, and the patient's condition remained stabilized until approximately 5:00 p.m. on March 7, 1978. Up until that point, the bleeding that had been experienced following the initial hemorrhage was slight, and it was decided to remove the packing which had been placed at the conclusion of the operation. Most of the packing had been removed and there was no sign of bleeding, when a substantial hemorrhage took place in the cervical canal. At that point, Dr. Tauber repacked and made arrangements for an emergency ambulance, to transfer the patient to the hospital, and to notify Dr. Herran. The patient's vital signs began to deteriorate and during the transportation of the patient from Dr. Tauber's facility to Orange Memorial Hospital, the patient began to show marked signs of hypevolemic shock. Upon arriving at the Orange Memorial Hospital, the patient became the charge of that hospital staff and Dr. Tauber was no longer responsible, although he stayed with the patient and offered assistance, which was declined. The events which transpired at the Orange Memorial Hospital evidenced an inordinate delay on the part of the staff in properly administering to the needs of the patient. Whether this significantly contributed to the patient's ultimate demise is unresolved, but having arrived at the hospital in a condition where her body was already at a low ebb and unable to tolerate further insult, the patient died following a hysterectary performed in the Orange Memorial Hospital. The principal factor in that death was hypovolenic shock. Out of these events, the Petitioner has charged Dr. Tauber with a failure to demonstrate satisfactory professional skill, judgment or knowledge in the treatment of the patient, Gloria Small, and the accusation that Dr. Tauber has exhibited an inability to practice osteopathic medicine with reasonable skill and safety and that his professional conduct departed from minimal standards of acceptable and prevailing osteopathic medical practice. The particular substantive allegations which remain to be considered at this time are found in Subsections 459.14(2)(c) and (m), Florida Statutes, which state the following: 459.14 Refusal, revocation and suspension of license, etc.-- (c) Gross malpractice or the inability to practice osteopathic medicine with reasonable skill and safety. In enforcing this paragraph the board shall, upon just cause shown, have authority to compel a physician to submit to a mental or physical examination to be conducted by physicians designated by the board, such examination to be at the expense of the board. Failure or refusal of a physician to submit to such an examination when so directed by the board shall constitute an admission of his inability to practice osteopathic medicine with reasonable skill and safety. (m) A finding by the board that the indivi- dual is guilty of immoral or unprofessional conduct. Unprofessional conduct shall include any departure from, or failure to conform to, the minimal standards of acceptable and prevail- ing osteopathic medical practice, without regard to the injury of a patient, or the committing of any act contrary to honesty, whether the same is committed in the course of practice or not. In addressing the question of the application of these substantive standards set forth above to the facts reported in this case, the parties have offered the testimony of a number of persons within the profession of osteopathic medicine and other physicians who are medical doctors. An analysis of their testimony in view of the accusations in this cause establishes that the Respondent has evidenced an inability to practice ostepathic medicine with reasonable skill and safety within the meaning of Subsection 459.14(2)(c), Florida Statutes, and is likewise guilty of unprofessional conduct for departing from minimal standards of acceptable and prevailing osteopathic medical practice within the community where he practiced as required by Subsection 459.14(2)(m), Florida Statutes. The facts that led to these conclusions are those which show that the Respondent went forth with the dialation and evacuation and sterilization procedures of Gloria Small at a time when he did not have hospital privileges and at a time when he was unassociated with those persons who would have the necessary hospital privileges to address complications which might occur during these procedures, which complications might need immediate and well-defined access to a hospital facility. In addition, the possibility existed that the patient would need whole blood and other products associated with fluid replenishment and the Respondent had failed to make adequate arrangements for such eventuality, which failure caused undue delay in the infusion of the whole blood in the patient, Gloria Small. The problem in this case concerning the lack of readily available blood or blood products constituted a violation of the aforementioned standards on the part of Dr. Tauber and the very fact that Dr. Tauber had not made the prior arrangements to have available such blood or blood products constituted a further violation of the aforementioned standards. In a related area, that condition which would cause a necessity of the infusion of blood, to-wit, hypovolemic shock, had not adequately been anticipated, in violation of the necessary standards, even if you assume that Dr. Tauber made a sufficiently prompt response to the patient's hypovolemic condition which occurred following Dr. Tauber's operative procedures. Had the blood been needed more promptly, the Respondent was not prepared. There was considerable debate on the question of the necessity to transport the patient, Gloria Small, to a hospital following the substantial hemorrhage which occurred in the dialation and evacuation and sterilization procedures. After close scrutiny, it does not appear that the Respondent was remiss for not transferring the patient to Orange Memorial Hospital as opposed to the occasion when he did transfer her, remiss within the meaning of a violation of a standard set forth in Chapter 459, Florida Statutes. The procedures which Dr. Tauber used in discussing the case with his patient, Gloria Small, and providing other counseling do not violate provisions of Chapter 459, Florida Statutes, nor is the act of perforation itself and the contemporaneous management of that perforation in violation of Chapter 459, Florida Statutes. Likewise, the response which Dr. Tauber made in the second emergency on March 7, 1978, when the bleeding occurred did not violate the provisions of Chapter 459, Florida Statutes. Finally, it cannot be determined from this record whether Dr. Tauber could have avoided the confusion which took place after the patient was transferred to Orange Memorial Hospital, by earlier coordination with Dr. Herran; and in view of the fact that the patient was no longer his charge once she had been admitted to Orange Memorial Hospital, there can be no responsibility, within the meaning of Chapter 459, Florida Statutes, for those events which transpired when the patient was admitted to Orange Memorial Hospital. The parties have availed themselves of the opportunity to submit findings of fact, conclusions of law and recommendations and these offerings have been reviewed prior to the rendition of this Recommended Order and to the extent that they are not inconsistent with the Recommended Order, they have been utilized in aid of the preparation of this Recommended Order. To the extent that these proposals are inconsistent with the Recommended Order, they are hereby specifically rejected.
Recommendation In view of all the facts and circumstances, it is recommended that the Respondent, Ronald M. Tauber, D.O., have his license to practice osteopathic medicine in the State of Florida suspended for a period of two (2) years. DONE AND ENTERED this 10th day of May, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire Post Office Box 1752 Tallahassee, Florida 32302 Michael Sigman, Esquire Suite 1515 CNA Tower Orlando, Florida 32801 Roy Lucas, Esquire 1055 Thomas Jefferson Street, N.W. Suite 604 Washington, D.C. 20007 Samuel Weiss, Esquire 1180 Hartford Building 200 East Robinson Street Orlando, Florida 32801
The Issue Whether the Petitioner's renewal application for licensure to operate as an abortion clinic should be granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the agreed facts contained in the Joint Prehearing Stipulation, and on the entire record of this proceeding, the following findings of fact are made: AHCA is the state agency responsible for licensing abortion clinics. See §§ 390.011(3); 390.012; 390.015; 408.802(3); and 408.806, Fla. Stat.1 The Medical Center of Broward is located at 6971 West Sunrise Boulevard, Suite 206, Plantation, Florida, and is licensed to operate as an abortion clinic pursuant to Chapter 390, Florida Statutes, and Florida Administrative Code Rule Chapter 59A-9. On February 16, 2007, AHCA conducted a survey at the Medical Center of Broward in conjunction with the Medical Center of Broward's application to renew its license to operate as an abortion clinic. The Medical Center of Broward refused to give the AHCA surveyor access to patient medical records during the inspection on February 16, 2007. In a letter dated February 20, 2007, Diane Reiland, AHCA's field office manager in Delray Beach, Florida, advised Dr. Rosenthal, the administrator of the Medical Center of Broward, that no deficiencies had been found during the re-licensure survey but that "the Agency will contact you regarding a decision on the medical records concern [sic] that was discussed during the Re-Licensure survey."2 Counsel for AHCA sent a letter to the Medical Center of Broward dated February 27, 2007, setting out a procedure for review of medical records that was agreed to by counsel for the Medical Center of Broward and counsel for AHCA. The procedure set out in the February 27, 2007, letter contemplated a return visit to the Medical Center of Broward by an AHCA surveyor, who would select a sample of approximately 10 clinic patients whose records would be reviewed. The surveyor was to remain at the Medical Center of Broward while office personnel redacted from the records all patient identifying information, and the AHCA surveyor was then to review the records for compliance with the applicable rules and statutes. On April 4, 2007, Deatrice Bartley, a health facility evaluator supervisor employed by AHCA, telephoned the Medical Center of Broward and confirmed an appointment for an AHCA surveyor to review medical records on April 5, 2007, at 9:30 a.m. Ms. Bartley asked the person with whom she spoke if any patients would be present at the time of the record review and was told that no patients would be present on the morning of April 5, 2007. Shortly after 8:00 a.m. on April 5, 2007, Ms. Bartley contacted Alexandra Pelin, a health facility evaluator employed by AHCA, via the cell phone AHCA provided Ms. Pelin. Ms. Bartley advised Ms. Pelin of the 9:30 a.m. appointment at the Medical Center of Broward to review medical records. Ms. Bartley further advised Ms. Pelin that the Medical Center of Broward's office opened at 9:00 a.m.3 After speaking with Ms. Bartley, Ms. Pelin left her home in Palm Beach County, Florida, and drove to the address at which the Medical Center of Broward's office in Plantation, Florida, was located. She arrived at the Medical Center of Broward's office at 9:50 a.m., and went to the second floor of the building, where the office was located. She tried to enter the office, but the office door was locked; she knocked on the door, but there was no answer. She also looked in the window of the office but did not see anyone inside. Ms. Pelin immediately called Ms. Bartley and told her that she was unable to enter the Medical Center of Broward's office. Ms. Bartley gave Ms. Pelin two telephone numbers that had been given to Ms. Bartley by the person she had spoken with at the Medical Center on April 4, 2007. It was Ms. Bartley's understanding that one phone number was for the Medical Center office located in Broward County, Florida, and that the other phone number was for a Today's Women Medical Center clinic located in Miami, Florida. At 9:55 a.m., Ms. Pelin placed a call to 954-792-9171, which was one of the numbers Ms. Bartley had given her.4 Ms. Pelin became confused when the call was answered, and she hung up and redialed the same number. Ms. Pelin's call was answered by the Medical Center of Broward's answering service. She was told by the answering service that someone would be at the office at about 10:30 a.m. The answering service also told her that they could not give her the telephone numbers of the physicians working at the Medical Center of Broward, who received telephone calls at the same number she had dialed. Ms. Pelin then telephoned Ms. Bartley again and gave Ms. Bartley the information Ms. Pelin had received from the answering service. Ms. Pelin suggested to Ms. Bartley that she wait until 10:45 a.m. for someone to arrive at the Medical Center of Broward's office, and Ms. Bartley agreed. Ms. Pelin waited in her car in the parking lot outside the Medical Center of Broward's office from 9:57 a.m. until 10:47 a.m. From her location in front of the building that housed the Medical Center of Broward's office, Ms. Pelin had a direct view of the office door, which was located on the second floor of the building. Ms. Pelin did not see anyone enter or leave the office through that door. Ms. Pelin's telephone records indicate that, at 10:44 a.m., she placed another call to 954-792-9171. She expected the call to be answered by the answering service, but, instead, someone in the Medical Center of Broward's office answered the telephone. Although Ms. Pelin had not seen anyone enter the Medical Center of Broward's office, the content of the telephone conversation led Ms. Pelin to conclude that the person was inside the Medical Center of Broward's office. Ms. Pelin talked with this person, who identified herself only as "Yersel," for approximately five minutes. Ms. Pelin asked if she was inside the office, and "Yersel" told Ms. Pelin that she was. "Yersel" told Ms. Pelin that Ms. Pelin could not come into the Medical Center of Broward's office because she was with a patient and that patients would be coming into the office that day. "Yersel" told Ms. Pelin that AHCA inspectors should come to the office before 10:30 a.m. because patients started arriving at that time. "Yersel" also confirmed with Ms. Pelin that she arrived at the office late that morning. After talking with "Yersel'", Ms. Pelin telephoned Ms. Bartley, who told her to contact AHCA's field office manager. Ms. Pelin did so, and the field office manager advised Ms. Pelin to leave the premises. Ms. Pelin left the parking lot of the Medical Center of Broward's office and drove to AHCA's field office in Delray Beach, Florida, where she arrived at 11:34 a.m.5 Although AHCA surveyors attempt to schedule appointments when no patients are present at an abortion clinic, the surveyors will conduct an inspection even if patients are present under certain circumstances. The surveyors attempt to conduct inspections in a manner that does not disrupt the business of the clinic, and they will try to find a place to work where they do not bother patients. Ms. Pelin could have reviewed the medical records on April 5, 2007, with the permission of the Medical Center of Broward but did not do so because she was told that she could not enter the office. It is AHCA's practice to deny an application to renew a license to operate an abortion clinic after two unsuccessful attempts to inspect the clinic's facility and patient medical records because AHCA has not been able to determine whether the clinic is in compliance with the statutes and rules governing such clinics.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order denying the application of Today's Women Medical Center of Broward for renewal of its license to operate an abortion clinic. DONE AND ENTERED this 30th day of May, 2008, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 30th day of May, 2008.
The Issue Whether Respondent failed to timely file its application for the renewal of its abortion clinic license, as alleged in the Administrative Complaint. If so, may the Agency for Health Care Administration (Agency) fine Respondent for failing to timely file its renewal application. If the Agency is authorized to impose such a fine, should it exercise such authority. If so, what is the amount of the fine it should impose.
Findings Of Fact The Agency issued an administrative complaint on June 3, 1996, stating an intent to impose an administrative fine in the amount of One Thousand ($1,000.00) Dollars against A Doctor's Office for Women North, Inc., d/b/a A Doctor's Office for Women North (hereinafter referred to as "Respondent"), charging violations of Chapter 390, Florida Statutes, and Rule 59A-9, Florida Administrative Code, as grounds for the imposition of the administrative fine and advising the Respondent of its right to request an administrative hearing. Respondent was served a copy of the administrative complaint on June 4, 1996, by U.S. Certified Mail, Return Receipt Requested, but failed to respond or request a hearing within twenty one (21) days of receipt of notice of the action of the Agency as required pursuant to Section 120.57, Florida Statutes, and Rule 10-2.36, Florida Administrative Code. Respondent is licensed to operate at 1100 N.E. 125th Street, North Miami, Florida 33161, as an abortion clinic in compliance with Chapter 390, Florida Statutes, and Chapter 59A-9, Florida Administrative Code. Respondent has operated such that: (a) The Respondent has violated the provisions of Chapter 390, Florida Statutes, in that License Number 685 was issued to the Respondent for the period of 2/28/95 through 2/27/96. Respondent's application for renewal was due to be received by the Agency on 12/29/95, sixty days prior to expiration; however, it was received on 02/26/96, which was (54) days late. This is in violation of Section 390.016(1), Florida Statutes. Notice was provided in writing to the Respondent of the violations set forth above in paragraph 4(a).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency issue a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 9th day of October, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1997.
Findings Of Fact The Respondent Gonzalez The Respondent Maria B. Gonzalez is a medical doctor holding Florida license number ME 0028019. She has been licensed to practice medicine in Florida since 1975. Prior to the instant proceeding, her license to practice medicine has never been suspended or revoked. The Respondent has taken and passed the written test for board certification as a specialist in obstetrics and gynecology, but was refused permission to complete the exam because her privileges had by then been suspended by Hollywood Memorial Hospital. During the course of her practice in Cuba and Florida, the Respondent has delivered approximately 2,000 babies. To her knowledge, she has never had a maternal or infant death occur during her practice. The Respondent's practice at Memorial Hospital was highly unusual in that almost half of her patients were Medicaid. As a result, Respondent encountered difficulties in dealing with some of the members of the medical staff at Memorial since she believed that her patients medical interests should take precedence over their ability to pay for services. 1/ The Respondent's provisional staff privileges at Memorial were suspended on July 28, 1982, based upon a review by an ad hoc committee of the hospital's obstetrics and gynecology staff, of six cases, five of which form the basis of the instant proceeding. In deciding to terminate the Respondent, the ad hoc committee considered pertinent medical records and statements from witnesses but did not hear the direct testimony of the Respondent. When the decision was made by Memorial to terminate the Respondent, the hospital informed the Petitioner of this fact pursuant to Section 458.337, Florida Statutes, which requires that the Department be notified when any physician has been disciplined by a licensed hospital for any act that constitutes a violation of Chapter 458, Florida Statutes. Count One Aida M. Astiazarian On December 25, 1981, the Respondent performed a bilateral tubal ligation on Aida M. Astiazarian, a patient who had vaginally delivered an infant several hours prior to the operation. During the procedure, the Respondent was assisted by Dr. Purificacion D. Catini, a surgical assistant. The patient was anesthetized by Dr. Gary Karch. The tubal ligation on Astiazarian began with the opening of the abdominal cavity. Several adhesions from prior surgery and two small bleeders were noticeable, specifically a bleeder on the anterior abdominal wall and on the anterior surface of the uterus. The Respondent ligated the bleeder on the anterior abdominal wall and controlled the oozing from that source. The Respondent elected not to suture or ligate the oozing on the anterior surface of the uterus as recommended by Dr. Catini and instead used a four-by-four inch section of Gelfoam to control the bleed. The Gelfoam was applied with a laparotomy paid and removed after a few minutes. Believing that hemostasis had been achieved, the Respondent closed the abdominal cavity. Unlike the Respondent, Dr. Catini believed that hemostasis had not been achieved since she noticed some oozing still occurring after the Gelfoam was applied. Following the operation the patient's hemoglobin, hematocrit and blood pressure began to fall. The likely cause of these symptoms was an intra- abdominal bleed or ooze. The patient was transfused with several units of blood and discharged from the hospital. Although a reasonably prudent physician would not close a patient with an active ooze or bleed, the record fails to establish that the Gelfoam was ineffective and the Respondent knew or should have known that hemostasis had not been achieved. 2/ Uterine oozing in a postpartum patient can occur without any negligence by a treating physician. The loss of blood which occurred following this operation is not inconsistent with the Respondent's assertion that hemostasis had occurred and that sometime later the clot had become dislodged, thereby causing the bleed which resulted in the administration of two units of blood. Count Two Jaclyn R. Osier On December 28, 1981, the Respondent performed a postpartum tubal ligation on Jaclyn R. Osier. She was assisted during the procedure by Dr. David Gordon. During the operation, a tear in the broad ligament occurred and the patient began to hemorrhage profusely. The tear of the broad ligament which occurred during the procedure was an inherent risk of surgery and does not, by itself, demonstrate negligence by the Respondent. The Respondent extended the incision and located one of the bleeders; however, due to the nature of the tear and the physical condition of the patient, she was unable to locate and control other bleeders which were deeper in the abdomen. Due to the blood loss experienced by the patient, Dr. Gordon determined that additional help was needed. He left the operating room and sought assistance from Dr. Raymond Nolan. When Dr. Nolan arrived, he made an additional extension of the incision and with assistance from the Respondent and Dr. Gordon, he was successful in locating the deep bleeders and achieving hemostasis. Under the circumstances, it was appropriate medical practice for either the Respondent or Dr. Gordon to seek additional help when the patient's bleeding was not under control. As noted by Dr. Nolan "...Just as two heads are better than one, four hands are better than two." (Tr. at 369.) Significantly, Dr. Nolan, a surgeon who had operated with the Respondent on this case as well as others, did not believe that the Respondent's license should be revoked based on his actual experiences with the Respondent. Following this incident, Dr. Nolan did not have any immediate concern that the Respondent had acted improperly. Although Dr. Nolan later voted to suspend the Respondent's hospital privileges at Memorial, his vote was based on the recommendation of the hospital's ad hoc committee rather than his own personal experiences with the Respondent or his own independent review of pertinent medical records. The intra-operative complication which occurred in this particular case was not the result of the Respondent's negligence. When the Respondent was unable to control the bleeding with Dr. Gordon after the incision had been extended, another surgeon was called to assist. The Respondent's inability to control the bleed prior to Dr. Nolan being called, does not constitute negligence under the circumstances of this case. Count Three Linda Jones On May 28, 1982, at 9:45 p.m., Linda Jones, a high risk and postdate patient was admitted to Memorial. The Respondent examined the patient on the morning of May 29, 1982, and found her to be in labor. The practice at Memorial was that provisional staff physicians, such as the Respondent, handle all service or indigent patients. Linda Jones had been handled by Dr. Kast, another provisional staff physician. On the day the Respondent examined the patient, she was covering for Dr. Kast, who had asked as a courtesy to be relieved until 1:30 p.m. The labor and delivery of pregnant service patients at Memorial are handled by nurse/widwives, unless a complication arises which requires a surgical procedure. The patient was scheduled for a normal vaginal delivery. She was doing well and was placed on a fetal monitor. At approximately 12:25 p.m., the patient started having episodes of decelerations. Nurse/Midwife Jean Tease, R.N., turned off the Pitocin which had been administered and turned the patient to relieve the decelerations. The patient continued to progress until approximately 1:22 p.m., when rapid decelerations on the fetal monitor were observed. At approximately 12:00 p.m. the Respondent left Memorial to attend a wedding in Fort Lauderdale which was a twenty minute drive from the hospital. She notified the nursing staff where she was going so that she could respond if needed. 3/ Nurse Tease contacted both Dr. Kast and Respondent when the patient's symptoms began to worsen. The Respondent returned the call and when informed of the problem, advised Tease that she would return to the hospital. The Respondent was returning to the hospital via Interstate 95 when it began to rain very heavily. Her front brakes froze and her car was immobile. While it continued to rain, Respondent pulled over on the side of the Interstate and attempted to flag down help. A wrecker operator stopped and towed her car to a service station where it was repaired. Meanwhile, since the Respondent had not arrived at Memorial as she had stated, Nurse Tease placed a page for any obstetrician in the hospital, and Dr. David Lessin responded. Dr. Lessin performed an emergency cesarean section and produced a living baby. The Amended Administrative Complaint does not allege that the Respondent was negligent in leaving the hospital; rather it charges that the Respondent breached a duty owed to this patient by failing to come to the hospital until approximately four hours after advising hospital personnel that she was in route. Due to mechanical problems with her car and the weather, it was impossible for the Respondent to return to the hospital to attend this patient. The Respondent believed that Dr. Kast was on duty after 1:30 p.m., and she knew she could not arrive at the hospital before that time. Under the circumstances, her actions regarding this patient were not negligent. Count Four Ramona Cardullo Ramona Cardullo was admitted to Memorial on the morning of May 28, 1982. Mrs. Cardullo was pregnant with her third child who was ultimately successfully delivered by cesarean section. Prior to this pregnancy, Mrs. Cardullo had experienced significant difficulties during the delivery of her two other children. Her first child, who was born following induced labor in Texas, was a month post-mature. Her second child was delivered at Memorial by another obstetrician following induced labor. The second child was delivered through the use of forceps. The problems which Mrs. Cardullo encountered in her two previous pregnancies resulted from a uterine dysfunction in which her cervix failed to dilate sufficiently to permit a normal delivery. When Mrs. Cardullo came to the Respondent during her third pregnancy, she related her previous obstetrical history and its attendant difficulties to the Respondent. In addition to her historical problems, Mrs. Cardullo had also gained 80 pounds during her third pregnancy. When Mrs. Cardullo began her prenatal care, she was living in Hollywood, Florida, with her husband. During her pregnancy, the couple moved to Wauchula, Florida. Since Mrs. Cardullo did not believe that Wauchula had appropriate hospital facilities, she commuted to Fort Lauderdale from Wauchula during the last three months of her pregnancy. The Respondent, however, was unaware that Mrs. Cardullo had moved from Hollywood. On May 28, 1982, Mrs. Cardullo, while home in Wauchula, began passing membranes and started to go into labor. She informed her husband that she was in labor, and called the Respondent. After driving from Wauchula, the couple met the Respondent at Memorial where the patient was examined. The examination revealed that Mrs. Cardullo was not dilating and the Respondent told her to begin walking. She walked around the hospital until later that afternoon, when tests were performed by the Respondent to ensure that the baby was okay. The Respondent put the patient in the labor room and began Pitocin to augment her labor. A nurse in the labor room told Mrs. Cardullo that other patients needed the room more than she did and contacted another physician who ordered the Pitocin to be turned off and the patient sent home. Mrs. Cardullo and her husband returned to Wauchula while she was still in labor. Approximately three hours after arriving home, Mrs. Cardullo began passing "... a lot of stuff." (Tr. at 900.) Mr. Cardullo called the Respondent, informed her of his wife's condition, and stated that they were coming back to the hospital. The couple arrived at Memorial on May 30, 1982, and Mrs. Cardullo was readmitted. Although Mrs. Cardullo's labor had continued throughout this period, her cervix had not dilated. The Respondent discussed a cesarean with the patient, who had requested the procedure be done based on her vaginal experiences in two prior pregnancies, and decided to attempt to dilate the cervix before performing surgery. Approximately ten hours after Mrs. Cardullo's readmission and five hours after her water had broken, the Respondent came to the conclusion that the Pitocin was not working since the patient's cervix still had not dilated properly and that a cesarean would be necessary. Mrs. Cardullo had no problems with the cesarean delivery and was pleased with the quality of care she received from the Respondent. Mrs. Cardullo stated that the Respondent was different from other doctors she had encountered in that she believed the Respondent cared about her and her problems. The Respondent's care and treatment of Mrs. Cardullo was appropriate considering the patient's prior medical history. The only criticism that could be directed toward the Respondent in her handling of the Cardullo case is that she waited too long to perform the cesarean by not giving sufficient consideration to the input from her patient. Count Five Elina Carrasco On December 17, 1982, the Respondent performed an abdominal hysterectomy on Elina Carrasco at International Hospital in Miami, Florida. During the procedure the Respondent was assisted by Dr. Francisco Sarmiento. The patient had a large amount of fibrous tissue and adhesions from prior abdominal surgery which made it difficult for the Respondent to visualize the operative site. The adhesions which surrounded the uterus, bladder, omentum, intestines, the right ovary, a segment of the left fallopian tube, and the abdominal wall, had formed a mass which required dissection to reach the pelvic cavity. While dissecting the mass of adhesions, the Respondent cut the patient's illiac vein which was located underneath the adhesions, thus causing the operative field to fill with blood. While Dr. Sarmiento placed his finger on the vein to stop the bleed, Respondent requested and placed a hemostatic clamp on the vein and requested a cardiovascular team to assist. At the time of the surgery, the practice at International was to place regular surgical clamps on a surgical tray rather than non-crushing clamps, when a standard gynecological procedure was performed. Accordingly, the sterile surgical tray which was prepared for this patient did not contain non-crushing clamps, although such clamps were available at the hospital. The surgical clamp was left on the patient only until the cardiovascular team arrived. Because a crushing clamp had been used, Dr. Junco, the surgeon who repaired the severed vessel, felt that a crush type injury to the underlying artery which was immediately adjacent to the severed vein, had occurred. The pathology report does not indicate that any clots or sections of artery were removed from the patient, although the operative records indicated two small clots were removed from the artery. The crush injury was not severe in that after the insertion of a fogarty catheter, proximal and distal blood flow was restored without requiring the removal of the crushed portion of the artery. Dr. Junco closed the vein and repaired the artery. After surgery, the patient improved and was discharged from the hospital on December 30, 1982, in stable condition. The basis of the charge against the Respondent in her care and treatment of Ms. Carrasco involves essentially one issue; whether it was below the standard of care for the Respondent to clamp the patient's vein with a device which could and did cause a crush injury to an underlying artery, 4/ in order to control bleeding from the illiac vein. In retrospect, the wiser course in this case would have been to take the time to obtain a non-crushing clamp from the rotating nurse while Dr. Sarmiento controlled the bleed through use of finger pressure. The unfortunate event which occurred in this case did not result from any lack of surgical or other skills by the Respondent. The Petitioner has characterized the Respondent's reaction to the transected artery and use of a hemostatic clamp as panic, while the Respondent has characterized it as a desire to use the first clamp available to control the bleeding as quickly as possible. Additionally, the Respondent needed Dr. Sarmiento to assist and while he was holding the artery, he was obviously unable to offer any other form of help. Under these circumstances, the Respondent's use of a hemostatic clamp does not demonstrate that she "panicked" in the operating room or that her decision to use the clamp fell below an acceptable standard of care. Count Seven Deborah J. Cox On June 6, 1982, the Respondent examined Deborah J. Cox and was present with her in the labor room throughout the patient's labor. The fetus was first on an external and then an internal monitor throughout labor. The Respondent requested that Dr. Antonio Mata, a neonatologist, be present for the delivery. When Dr. Mata came into the labor room, he checked the fetal monitor and noticed signs of moderate fetal distress. The combination of Pitocin, which was administered to the patient, and distressive labor, placed stress on the fetus as indicated by the fetal monitoring strips. The patient was transferred from the labor room to the delivery suite. In an effort to deliver the baby which was exceptionally large, it was necessary for the Respondent to use forceps because the baby's head was high and the mother's uterine surface remained thick even though she was well dilated. When the forceps were applied, the baby went into severe distress. The Respondent called for an emergency cesarean section, but the operating assistant was not available. Since it was necessary to deliver the baby as quickly as possible to avoid a stillbirth or permanent damage, the Respondent reapplied the forceps and attempted delivery. The baby was a very difficult delivery due to its size. It became stuck in the birth canal which required that the Respondent rotate its shoulders to effectuate delivery. While manipulating the baby, shoulder dystocia occurred. The Respondent elected not to perform the cesarean when it was first indicated, because of a hospital rule which prohibited the performance of a cesarean section without the presence of a surgical assistant. Due to the continuing difficulties she had encountered at Memorial, she was understandably reluctant to violate a hospital rule which would have subjected her to additional problems at Memorial. However, notwithstanding the legitimacy of the Respondent's personal concerns, the best interests of this patient required that a cesarean section be performed as soon as it became evident that the baby was not tolerating labor and that a vaginal delivery would place added and unnecessary stress on both the mother and child. The decision not to perform a cesarean, and instead deliver the baby vaginally through the use of forceps, created a situation which resulted in the fetus being born with an Apgar rating of 0 and possible permanent injury. By failing to perform a cesarean section when it was medically indicated, the Respondent's care and treatment of Deborah J. Cox fell below acceptable standards of obstetrical practice.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Board of Medical Examiners issue a Final Order finding the Respondent (1) guilty of violating Count Seven of the Amended Administrative Complaint; (2) dismissing Counts One, Two, Three, Four and Five of the Amended Administrative Complaint; and (3) placing her on probation for six months subject to the condition that during this period she be required to practice obstetrics and/or gynecology under the general supervision of a board certified physician. DONE and ENTERED this 18th day of November, 1983, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1983.
The Issue The issues in these cases are whether Respondent violated Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes (2002), in DOAH Case No. 09-4678PL; Subsections 456.072(1)(l), 458.331(1)(m), and 458.331(1)(t), Florida Statutes (2003), in DOAH Case No. 09-4679PL; and Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes (2005), in DOAH Case No. 09-4680PL, and, if so, what discipline should be imposed.
Findings Of Fact At all times relating to the three Administrative Complaints at issue, Dr. Kachinas was a licensed medical doctor within the State of Florida, having been issued license number ME 65595. He is board-certified by the American Board of Obstetrics and Gynecology. DOAH CASE NO. 09-4678PL In 2002, Dr. Kachinas was working at several clinics that were owned by the same individual. He received payment from Sarasota Women’s Health Center and Tampa Women’s Health Center. His primary office was located in Sarasota, but he rotated through the offices located in Clearwater and Tampa. He was advised that he would be attending a patient in the Tampa office. One of the medications that he used in his method of sedating patients, Propofol, was not available in the Tampa office. He took a vial of the Propofol and took it to the Tampa office, holding the vial in his hand. While at the Tampa office, Dr. Kachinas drew the Propofol into a syringe. He did not have to use the Propofol for the patient. He placed the syringe filled with Propofol inside the sock that he was wearing. Dr. Kachinas transported the syringe back to the Tampa office. He used this method of transport so that the office manager in the Tampa office would not know that he was transporting the drug. When he got back to the Tampa office, he placed the filled syringe in a secure place. Propofol must be used within 24 hours after being drawn into a syringe. The next day it was decided that the drug would not be used on another patient, and Dr. Kachinas wasted the syringe filled with Propofol. At the clinics where Dr. Kachinas worked, there were no logs to keep track of the drugs, except for the drug Fentanyl. Dr. Kachinas acknowledged in a letter dated January 30, 2007, to the Department of Health that his method of transporting Propofol was “unorthodox.” In the same letter, Dr. Kachinas acknowledged that “a reasonable and prudent doctor would not generally transport medication in that manner, but foolishness seemed reasonable in that aberrant environment.” DOAH CASE NO. 09-4679PL On March 26, 2004, B.S. presented to Premier Institute for Women’s Health (Premier) for an elective termination of pregnancy. Dr. Kachinas was the physician who handled the procedure. Dr. Kachinas maintained records relating to B.S. at Premier. In 2004, Petitioner subpoenaed B.S.’s records from Dr. Kachinas’ office. Petitioner received a packet of documents, which purported to be B.S.’s medical records. In July 2006, Lori Jacobs, an employee of Premier, sent Petitioner another copy of the documents sent in 2004. Neither the records provided in 2004 nor the records provided in 2006 contain progress notes for B.S.’s treatment on March 26, 2004, and March 27, 2004. For the first time on November 5, 2009, Dr. Kachinas produced a three-page document, which he claimed was part of B.S.’s medical records that had been misplaced in B.S.’s insurance file. Two of the pages purported to be progress notes for March 26 and 27, 2004. The third page, which is also labeled as a progress note, is dated June 29, 2004, and appears to relate to insurance claims. The two pages relating to March 26 and 27 are on paper which is a different color from the progress note relating to insurance claims and the progress notes which were previously furnished in 2004 and 2006.1 Additionally, the progress notes for March 26 and 27, 2004, contain a break in each of the ruled lines on the sheets on both the right and left sides of the sheets. The insurance progress note and the progress notes furnished in 2004 and 2006 do not have such breaks in the ruled lines. Dr. Kachinas completed a Laminaria Insertion report documenting procedures done on March 26, 2004, and March 27, 2004. The March 26, 2004, report documents the insertion of Laminaria and administration of medications. The comment section of the report documents the removal of the Laminaria and administration of medications on March 27, 2004. The comment section continues to document the administration of medications and the taking of vital signs after the removal of the Laminaria and also the transfer of the patient to Doctors Hospital. The detail on the comment sections suggests that Dr. Kachinas was making his progress notes in the Laminaria Insertion report. The failure to produce the purported progress notes for March 26 and 27, 2004, until November 5, 2009; the difference in the color of the paper of the March 26 and 27, 2004, purported progress notes and the other progress notes in Dr. Kachinas’ records; the presence of breaks in the ruled lines on the March 26 and 27, 2004, purported progress reports, which do not appear on the other progress notes; and the detail of the comments on the Laminaria Insertion report support the conclusion that the progress notes submitted as Respondent’s Exhibit 1 were not done contemporaneously with the treatment given to B.S. on March 26 and 27, 2004, but were prepared for this proceeding. Thus, the progress notes for March 26 and 27, 2004, are not credited. Dr. Kachinas determined B.S.’s pregnancy to be at approximately 23½-to-24 weeks’ gestation, the last week of the second trimester. He confirmed by sonogram that the gestation period was 24 weeks. On March 26, 2004, Dr. Kachinas began the induction of labor ordering the insertion of ten Laminaria, which are osomotic cervical dilators which cause the cervix to open and allow easier emptying of the uterus. Dr. Kachinas’ records do not show that B.S.’s medical history was taken prior to the insertion of the Laminaria. However, Dr. Kachinas did take a medical history of B.S. at the time of her admission to Doctors Hospital, and the history is recorded in the medical records. Prior to the insertion of the Laminaria, Dr. Kachinas’ records do show that a limited physical examination of B.S. was done. The Laminaria Insertion report shows that B.S.’s baseline blood pressure, temperature, and pulse were taken and recorded. There was no expert testimony of what other physical examination should have been done. Dr. Kachinas injected the fetus with Digoxin, which is injected directly into the fetus to stop the fetal heartbeat, causing an Intrauterine Fetal Demise (IUFD). The injection of the Digoxin was not documented in B.S.’s medical records. B.S. was then released from Premier. On March 27, 2004, B.S. returned to Premier. Prior to removing the Laminaria, Dr. Kachinas did an ultrasound and determined that there was still fetal heart activity and fetal movements. Dr. Kachinas continued the labor induction procedure by removing the Laminaria and administering Cytotec and high dosages of Pitocin. When the Laminaria were removed, there was a rupture of membranes with a loss of essentially all the amniotic fluid. Sometime during the afternoon of March 27, 2004, Dr. Kachinas did another ultrasound and determined that there was no fetal heart activity. Based on the length of time from the Digoxin injection to the ultrasound showing no fetal heart activity, the loss of amniotic fluid, and the administering of medication to cause contractions, Dr. Kachinas determined that the Digoxin injection was not the cause of death. On March 27, 2004, at approximately 6:30 p.m., Dr. Kachinas transferred B.S. to Doctors Hospital and had her admitted to the hospital for failure to progress with the induction of labor procedure. While at the hospital, B.S. continued to experience pain. On March 28, 2004, Dr. Kachinas performed the following procedures on B.S.: mini-laparotomy, hysterotomy, removal of products of conception, and a modified Pomeroy bilateral tubal ligation. In his description of the procedures, he stated that the fetal demise was at least of 48 hours duration. However, Dr. Kachinas’ records do not reflect the time of the fetal demise. Jorge Gomez, M.D., Petitioner’s expert witness, credibly testified that a physician is required to document the time of the fetal demise. In the hospital records following B.S.’s surgery, Dr. Kachinas listed the post-operative diagnosis as a failure to induce labor, an intrauterine fetal demise, a thin umbilical cord, and asymmetric intrauterine growth retardation, a condition in which the fetus is smaller than expected for the number of weeks of pregnancy. An autopsy was performed on the fetus. A surgical pathology report was also issued. The pathology report showed mild infarcts on the maternal side. On the fetal death certificate, Dr. Kachinas listed the immediate causes for the IUFD as a possible cord incident and multiple placental infarctions. Dr. Kachinas did not document the elective termination or the Digoxin injection on the fetal death certificate. Dr. Gomez disagrees with the reasons for IUFD given on the death certificate. His credible reading of the pathology report does not indicate that the infarcts were severe enough to have contributed to the fetal demise. His credible reading of the pathology report does not indicate that there was any evidence of a cord incident. Dr. Gomez is of the opinion that the cause of death should have been listed as elective termination. Dr. Gomez’ opinion is credited. However, Dr. Gomez did not give an opinion on whether the fetal demise was caused by the injection of Digoxin. DOAH CASE NO. 09-4680PL On December 13, 2005, K.M. was seen by Walter J. Morales, M.D., at Florida Perinatal Associates, which specializes in internal fetal medicine. Dr. Morales performed an ultrasound on K.M., who was pregnant with twins as a result of in vitro fertilization. The ultrasound revealed that the twins were fraternal, meaning that each twin had a separate placenta and a separate sac. One of the twins, Twin A, had an anomaly called a cystic hygroma, which results from an obstruction, causing the lymphatic fluid, which normally drains into the juglar vein, to accumulate in the neck area. Approximately 50 percent of the fetuses which have this anomaly in the first trimester also have a chromosomal anomaly, such as Down syndrome. The decision was made to have K.M. return to Florida Perinatal Associates in three weeks for further evaluation. On January 3, 2006, Edgard Ramos-Santos, M.D., a partner of Dr. Morales, performed another ultrasound on K.M. Dr. Ramos-Santos found that Twin A, a male, had a cystic hydroma, a thickening of the nuchal fold2, and shortened femur and humerus. These findings are soft markers for abnormal chromosomes. The ultrasound also revealed a possible heart defect. At the time of the ultrasound, Twin A was cephalic bottom, meaning that Twin A was positioned lowest in the uterus. Dr. Ramos-Santos also performed an amniocentesis on Twin A on the same date as the ultrasound. The amniocentesis showed that Twin A had an abnormal chromosome pattern compatible with trisomy 21 or Down syndrome. Both ultrasounds showed that Twin B, a female, appeared to be normal. At the request of K.M., no amniocentesis was performed on Twin B on January 3, 2006. At the time of the ultrasound performed on January 3, 2006, the presentation of Twin B was cephalic right. The findings of the January 3, 2006, ultrasound were discussed with K.M. and her husband. On January 9, 2006, Dr. Ramos-Santos discussed the results of the amniocentesis with K.M.’s husband. It was decided that a selective feticide would be performed on Twin A. Selective feticide is a procedure in which a solution of potassium hydroxide is injected into the fetus’ heart to make the heart stop beating. K.M. was referred to Dr. Kachinas at Premier for the selective feticide. On January 10, 2006, Roberta Bruce, a nurse at Florida Perinatal Associates, sent to Premier by facsimile transmission the January 3, 2006, ultrasound report for K.M. and K.M.’s insurance information. The cover page for the facsimile transmission included a note from Ms. Bruce, which stated: “* FYI Fetus have different gender. The male is the affected one.” The standard of care as specified in Section 766.102, Florida Statutes (2005), requires a physician performing a selective feticide to correctly identify the affected fetus. Dr. Kachinas did not correctly identify Twin A prior to performing the selective feticide and performed the procedure on Twin B, the normal fetus. Dr. Kachinas performed an ultrasound on K.M., but failed to identify the correct position of Twin A in relation to K.M. The ultrasound done on January 3, 2006, by Dr. Ramos-Santos showed that Twin A was located at the bottom and Twin B was located to the right of K.M. In his progress notes, Dr. Kachinas placed Twin A on the right and Twin B on the left. Although it is possible for twins to shift positions, it is not probable that the twins shifted from left to right. Dr. Kachinas performed an ultrasound, but failed to identify that Twin A was the fetus with multiple anomalies. Although the standard of care required Dr. Kachinas to do a Level 2 ultrasound evaluation, a Level 1 ultrasound evaluation would have identified the cystic hygroma, the shortened long bones, and the sex of Twin A. Dr. Kachinas failed to perform an adequate ultrasound evaluation by failing to identify the anomalies and the gender of Twin A. Dr. Kachinas’ notes do not show whether Twin A or Twin B had anomalies. His notes did not identify the sex of each of the twins. His notes did not document the attempts that Dr. Kachinas made to identify the anomalies such as a recording of the length of the long bones or any examination made to identify the sex of each of the twins. On January 24, 2006, K.M. returned to Florida Perinatal Associates for another consultation. Dr. Morales performed another ultrasound, which revealed that Twin A, who had the anomalies, was still viable. The ultrasound revealed the continued presence of a cystic hygroma, the thickening of the nuchal fold, shortened extremities, and a congenital heart defect. The ultrasound also showed that the viable twin was male. The presentation of Twin A was shown by the ultrasound as cephalic bottom.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED as to DOAH Case No. 09-4678PL that a final order be entered finding that Dr. Kachinas violated Subsection 458.331(1)(t), Florida Statutes (2002), by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent physician as being acceptable under similar conditions and circumstances; finding that Dr. Kachinas did not violate Subsection 458.331(1)(m), Florida Statutes (2002); imposing an administrative fine of $2,500; and placing Dr. Kachinas on probation for one year. Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED as to DOAH Case No. 09-4679PL that a final order be entered finding that Dr. Kachinas did not violate Subsections 456.072(1)(l) and 458.331(1)(t), Florida Statutes (2003); finding that Dr. Kachinas violated Subsection 458.331(1)(m), Florida Statutes (2003); imposing an administrative fine of $1,000; and placing Dr. Kachinas on probation for one year. Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED as to DOAH Case No. 09-4680PL that a final order be entered finding that Dr. Kachinas violated Subsection 458.331(1)(t), Florida Statutes (2005), by committing gross medical malpractice; finding that Dr. Kachinas violated Subsection 458.331(1)(m), Florida Statutes (2005); imposing an administrative fine of $2,000 and placing him on probation for one year for the violation of Subsection 458.331(1)(m), Florida Statutes (2005); and revoking his license for the violation of Subsection 458.331(1)(t), Florida Statutes (2005). DONE AND ENTERED this 26th day of January, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2010.
