Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent is, and was at all times material to these proceedings, a licensed optometrist in the state of Florida, having been issued license number OP 000773. Respondent has been a practicing optometrist in the state of Florida for 24 years having graduated from the Southern College of Optometry in Memphis, Tennessee in 1964. Respondent has maintained his practice in Orange Park, Florida since 1964. Respondent has been treating patients with orthokeratology for approximately 20 years. Count I: Treatment of Keith Roberson with Orthokeratology and Follow-Up Care Therefor. On or about October 23, 1979, Alan Keith Roberson and his mother visited Respondent for the first time concerning a program of orthokeratology. During that visit, Respondent gave Roberson literature regarding orthokeratology. Roberson expressed a strong desire to obtain a driver's license. Roberson was 21 years of age at the time. Respondent told Roberson that orthokeratology would possibly enhance his vision and possibly enable him to achieve those things that he desired, more specifically, a driver's license. Orthokeratology has been defined as the programmed application of contact lenses to reduce or eliminate refractive anomalies and to sphericalize the cornea in order to reduce myopia, contain myopia, and to bring back a more functional vision. Orthokeratology has also been used for the reduction of astigmatism. The American Academy of Optometry does not recognize diplomacy for orthokeratology. Neither the American Optometric Association nor the Florida Optometric Association recognizes orthokeratology as a separate section. No special license or certification is required to practice orthokeratology in Florida. The initial refraction of Roberson by Respondent showed that the patient's eyes were a minus 21 diopter. Roberson was extremely myopic, which means he was extremely nearsighted. Roberson also had a high degree of nystagmus (constant movement of the eyes from side to side) and very large eyes. Respondent treated Roberson with a modified orthokeratology program in an attempt to improve Roberson's vision so that Roberson could obtain a driver's license. Through this modified orthokeratology program, Respondent hoped to reduce and contain Roberson's myopia, to reduce Roberson's nystagmus, and to improve Roberson's vision. Roberson's aided vision improved from the initial visit of 20/200 in each eye to that of 20/70 in the right eye and 20/100 in the left eye. Although Petitioner contends that Roberson's improved vision was not attributable to the orthokeratology treatment, there is insufficient evidence to show otherwise. From 1979 through September 1982, Roberson's vision did not slip and his myopia did not get any worse, and indeed, his vision had improved. During that period, Roberson was seen approximately eight times by Respondent, of which six visits were for orthokeratology and contact lens treatment. On March 17, 1981, Roberson was issued an operator's license with corrective lens restrictions by the State of Florida, Department of Highway Safety and Motor Vehicles. Prior to the issuance of this driver's license, Roberson had obtained a form entitled "Report of Eye Examination with a Certification of Eye Specialist" which was completed and apparently used to obtain Roberson's driver's license. There is insufficient evidence to show that Respondent completed and signed that portion of the form entitled "Certification of Eye Specialist". Although Roberson testified that his driver's license was issued the day after this form was dated on October 4, 1980, it is clear from the record that Roberson's driver's license was not issued until March 17, 1981. Respondent did not make any promises to Roberson that treatment with modified orthokeratology would improve his vision, unaided by glasses or contact lenses, so that Roberson could pass the vision requirement of the Florida Driver's Test unaided by glasses or contact lens, notwithstanding that the ultimate goal of orthokeratology may be to allow the patient to go for periods of time without refractive devices and function normally. Although Roberson's condition at the time of his first visit may have contraindicated a "strict" orthokeratology treatment, there were indications that the "modified" orthokeratology treatment suggested and used by the Respondent, after full explanation to Roberson, would produce the results that Roberson was seeking. In fact, it did improve Roberson's vision aided by refractive device sufficiently to allow Roberson to obtain a driver's license. Respondent did not promise Roberson that the "modified" orthokeratology treatment would enhance his vision, unaided by refractive devices, to the point of allowing Roberson to pass the driver's license test or that Roberson would be able to function normally for any period of time without refractive devices to aid his vision. There is insufficient evidence to show that Respondent could have obtained the same results using a less expensive treatment such as gas permeable contact lens. There was insufficient evidence that Respondent's follow-up care of Roberson was inadequate, particularly considering the use of "modified" orthokeratology treatment. There was insufficient evidence to show that Respondent's treatment of Roberson with "modified" orthokeratology fell below the standard of care in the community or that such treatment was inappropriate under the facts and circumstances of this case. Count II: Whether Respondent charged Patient Roberson an Excessive Fee for Orthokeratology. Because Roberson was the highest myopic (-21 diopter) patient ever seen by Respondent and initially unsure whether orthokeratology would work on this patient, Respondent quoted a fee of $1,000.00 with the understanding that if treatment was not successful then the fee would only be $500.00. The parties stipulated that Respondent ultimately received $1,000.00 in payment from Roberson for orthokeratology. Dr. Carter's normal fee in 1979 for orthokeratology was $2,000.00. There is insufficient evidence to show that Respondent prescribed orthokeratology treatment for Roberson to facilitate charging him a higher fee. Count III: Whether Respondent Failed to Properly Treat Patient Roberson and Follow Patient Roberson's Condition. At approximately 7:30 p.m., on September 7, 1982, Roberson visited Respondent's office after accidentally being "poked" in the left eye four days earlier causing a bright blue flash of light resulting in a curtain over Roberson's eye and poor sight vision in the nasal field. Roberson complained about fluctuating vision, seeing light flashes, a veil-like curtain coming over his left eye, watering of the left eye and slipping of contact lens. Respondent spent approximately 20-25 minutes examining Roberson. After examining Roberson's visual acuities, Respondent examined Roberson with a slitlamp or biomicroscope and attempted an optomoscopy in an attempt to view Roberson's retina. Because of Roberson's high degree of myopia and nystagmus and because Respondent did not dilate eyes during this time period, Respondent was unable to determine for certain that Roberson had a detached retina. However, Respondent was aware of the high possibility that Roberson had a detached retina. Although Respondent may have advised Roberson to visit his previous ophthalmologist the next day, Respondent did not call an ophthalmologist on the evening of September 7, 1982 to facilitate referral, nor did Respondent follow- up by calling a ophthalmologist at any other time. After Roberson left Respondent's office he went home. The next day Roberson went to work and while at work he continued to experience the veil like curtain over his eye and a dark spot. Roberson then went home and played drums for about 3 1/2 to 4 hours. When he finished playing the drums he took a shower. While shaking his hair dry he lost the vision in his left eye. Roberson, on the advice of his mother, then went to the University Hospital where he was immobilized and diagnosed as having a probable retinal detachment, and thereafter transported to Shands Hospital, where he was diagnosed as having a giant retinal tear. While at Shands Hospital, Roberson underwent three major operations on his eye and 45 minutes of laser surgery. He was informed that he would probably always be blind in his left eye. Because of Roberson's high degree of myopia, statistically he was at a very high risk of experiencing a detached retina with or without injury. Respondent was aware that patient's eyes were sensitive to a retinal detachment as early as 1979. In 1979, Respondent went to great lengths to inform Respondent that if he ever had the symptoms of a detached retina he should go directly to an ophthalmologist. The classic symptoms of a detached retina are flashes of light with what appears to be a veil or curtain floating over the eye. Roberson experienced the classic symptoms of a retinal detachment and communicated them to Respondent on the evening of September 7, 1982. A detached retina usually occurs secondarily to a retinal tear. A detached retina becomes an ocular emergency once detected or when it should have been detected. The circumstances presented in this case, inter alia, the history of the patient's eyes; a high degree of myopia; difficulty Respondent had with viewing patient's eyes and the symptoms complained of made the situation an ocular emergency. It was of paramount importance to get the patient to an ophthalmic specialist. The failure to promptly refer a patient who has a possible detached retina to the appropriate specialist is a grave departure from the prevailing standard of care for reasonable and prudent optometrists in Respondent's community under similar circumstances. The longer the blood supply is cut off from the retina the less chance there is that the retina will continue to function. The fact that 4 days had elapsed between the time Roberson had been struck in the eye on September 3, 1982, and the time he visited Respondent on September 7, 1982, makes referral that much more important. Merely telling Roberson to see an ophthalmologist the next day is not enough. Respondent should have called the retinal specialist and made the referral. The appropriate referral protocol and standard of care under the circumstances presented in this case would have been for Respondent to call the ophthalmologist himself that evening and, if the ophthalmologist was not in the office, it would have been appropriate to leave a message with the doctor's service explaining the emergency nature of the circumstances. Count IV: Whether Patient Roberson's Records were Altered or Made After the Fact by Respondent. When Roberson first visited Respondent's office in 1979, Respondent recorded Roberson's case history on a 5 x 8 card which was kept with Roberson's patient jacket. The results of Respondent's examination and testing of patients were records on a letter size document. In 1984, after receiving and responding to numerous inquiries regarding Roberson, Respondent transferred information from the 5 x 8 card onto the larger patient record so that all of the information would be contained on one form. The 5 x 8 card was then returned to the patient jacket. Respondent no longer has the patient jacket as all of his original records were subpoenaed from him during the civil litigation. While Dr. Carter candidly admits to transferring part of the patient record from one document onto another document, there was no testimony or evidence presented that Dr. Carter altered or changed any of the patient records or added any information thereto. Count V: Whether Respondent has Engaged in Gross or Repeated Malpractice in the Practice of Optometry Regarding his Treatment and Examination of Keith Roberson. The Respondent was disciplined by the Board of Optometry in its Final Order dated July 17, 1981 in Department of Professional Regulation v. R.T. Carter, O.D., Case No. 81-403, wherein Respondent was assessed an administrative fine of $5,000.00, ordered to make restitution in the total amount of $1,471.00, placed on probation for 18 months and had restrictions placed on his advertising. In General Although the record reveals that Petitioner has not always timely complied with time limits set out in Section 455.225(2) and (3), Florida Statutes, there has been no showing by the Respondent that he was prejudiced by the delays.
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Board enter a Final Order finding Respondent guilty of Count III and Count V, in regard to Count III of the Amended Administrative Complaint, and suspending his license to practice optometry in the state of Florida for a period of one year followed by one (1) year of supervised probation with conditions the Board may consider appropriate, and imposing an administrative fine of $5,000.00. It is further RECOMMENDED that Count I, Count II, Count IV and Count V as it relates to Counts I, II and IV be dismissed. RESPECTFULLY SUBMITTED and ENTERED this 8th day of March, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 8th day of March, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-2032 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings in Proposed Findings of Fact Submitted by Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 3, except date which was October 23, 1979. Adopted in Findings of Fact 4. Adopted in substance' in Finding of Fact 5, except last sentence which is rejected as not being supported by the substantial competent evidence in the record. 5.-6. Adopted in Findings of Fact 6 and 7, respectively. Subordinate to facts actually found in this Recommended Order. The first sentence adopted in Findings of Fact 10. The balance of this findings of rejected as not being supported by substantial competent evidence in the record. 9.-12. Subordinate to facts actually found in the Recommended Order. Adopted in Finding of Fact 20. Rejected as not being supported by substantial competent evidence in the record. 15.-22. Adopted in Findings of Fact 23,24,25,27,28,29,30 and 31, respectively. The first sentence is only a restatement of Respondent's testimony rather than a finding of fact. The balance of this finding is subordinate to the facts actually found in this Recommended Order. Adopted in Findings of Fact 26 and 35. 25.-28. Adopted in Findings of Fact 32, 33, 34 and 40. Specific Rulings on Proposed Findings of Fact Submitted by Respondent 1.-13. Adopted in Findings of Fact 1, 2, 3, 7, 3, 2, 5, 8, 9, 10, 11, 12 and 16, respectively. Adopted in Findings of Fact 14, 15 and 16. Adopted in Findings of Fact 17 and 18. -20. Are not findings of fact, but statements as to the weight given certain evidence. Adopted in Findings of Fact 17 and 18. Covered in Background. 23.-26. Adopted in Findings of Fact 19, 19, 20 and 21, respectively. 27.-28. Not a finding of fact, but rather a restatement of testimony. 29.-35. Adopted in Findings of Fact 23, 23, 24, 25, 25, 25 and 25, respectively. Adopted in Findings of Fact 25 and 26, but modified. The first sentence is subordinate to facts actually found in this Recommended Order. The balance is adopted in Finding of Fact 27. 39.-41. Adopted in Finding of Fact 28. Subordinate to facts actually found in this Recommended Order. Adopted in Finding of Fact 28. Is a restatement of testimony rather than a finding of fact but, if stated as a finding of fact would reject as subordinate to facts actually found in this Recommended Order. Rejected as being argument rather than a finding of fact. Covered in Background. Rejected as not being material or relevant. 48.-51. Adopted in Findings of Fact 36, 37, 38 and 39. Rejected as argument not a finding of fact. The first, third and fifth sentences are rejected as not being supported by substantial competent evidence in the record. The balance of this finding is subordinate to facts actually found in this Recommended Order. 54.-67. Rejected as not being material or relevant since Respondent produced insufficient evidence to show that he was prejudiced by these acts. 68. Rejected as not supported by substantial competent evidence in the record. 69.-70. Rejected as not being material or relevant. 71. Rejected as not being supported by substantial competent evidence in the record. COPIES FURNISHED: Robert D. Newell, Jr., Esquire Newell & Stahl, P.A. 817 North Gadsden Street Tallahassee, Florida 32303-6313 Gary J. Anton, Esquire Stowell, Anton & Kraemer Post Office Box 11059 Tallahassee, Florida 32302 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mildred Gardner, Executive Director Board of Optometry 130 North Monroe Street Tallahassee, Florida 32399-0750 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue The issue for determination is whether Respondent violated Subsection 466.028(1)(x), Florida Statutes (1996), in connection with his treatment of one patient.
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of dentistry in Florida pursuant to Section 20.43 and Chapters 456 and 466. Respondent is licensed to practice dentistry in Florida pursuant to license number DN12561. Respondent is a general dentist. Respondent practices dentistry in Englewood, Florida. Respondent has never had any disciplinary action taken against his dental license and has never been sued for malpractice. Patient J.N. first presented to Respondent for a problem-focused visit on January 28, 1997. A problem-focused visit is directed to a specific complaint. J.N. complained of a crown causing an intermittent toothache. Another dentist had placed the crown approximately one year earlier. J.N. brought X-rays done by the other dentist with her to Respondent's office. The X-rays had been taken approximately two months earlier. Respondent reviewed the prior X-rays and also took X-rays of J.N.'s problematic tooth, Tooth 2. The X-rays revealed that the tooth was badly decayed under the crown. The same area of Tooth 2 is evidenced on November 12, 1997, in bite wing X-rays taken by J.N.'s previous dentist. The X-rays revealed no caries or decay in Tooth 2. The X-rays taken in January 1997 by Respondent show deep decay on the mesial aspect of Tooth 2. Respondent determined that Tooth 2 was non-restorable and referred J.N. to a specialist for extraction. J.N. returned to Respondent's office seven months later on August 12, 1997, to have her teeth cleaned. Respondent examined J.N. and identified Tooth 3 as broken and Tooth 18 as decayed. J.N. also had generalized bleeding that indicated inflammation of her gums. Respondent recommended crowns for Teeth 3 and 18 and better oral hygiene. J.N. had poor oral hygiene, and the tooth cleaning was not completed. J.N. is a long time smoker. On August 12, 1997, Respondent's office scheduled J.N. for a follow-up appointment on August 27, 1997, to complete the cleaning of her teeth. However, J.N. cancelled the appointment after the scheduled appointment time and returned for a follow- up cleaning more than one month later on September 30, 1997. On September 30, 1997, J.N.'s poor oral hygiene had allowed so much build-up that the hygienist had to begin the cleaning anew. The hygienist recommended a shorter four-month recall for cleanings. J.N. returned to Respondent's office for a cleaning 17 months later on April 20, 1999. At the cleaning visit on April 20, 1999, the hygienist noted moderate gingivitis in all areas and recurrent decay in Teeth 11 and 15. J.N. expressed only cosmetic concerns. At J.N.'s request, Respondent placed a composite filling on Tooth 11. The hygienist again recommended more frequent cleanings at four-month intervals. Six weeks later, on June 8, 1999, J.N. presented on an emergency basis for pain in Tooth 15. The tooth had deteriorated due to fracture and decay to the point that aggressive measures were needed to salvage the tooth. Respondent performed a direct pulp cap because the decay had advanced to the nerve. Respondent advised J.N. that J.N. would need a root canal. J.N. stated she would have the tooth extracted instead because she did not want to pay for a root canal. Respondent successfully completed a core build-up and crown on Tooth 15. J.N. presented at Respondent's office on October 25, 1999, for a cleaning visit. A four-month interval had been recommended, but J.N. returned for a cleaning in six months. At this visit, some calculus was noted, along with plaque and generalized irritation, but no significant pocketing. Respondent's office scheduled J.N. for a six-month follow-up appointment. On November 11, 1999, Petitioner presented to Respondent's office for a problem-focused visit. Tooth 18 had decay that had advanced between the roots. Respondent placed a filling on Tooth 18, at no cost, in an attempt to salvage the tooth. Respondent had previously given Petitioner an estimate for a crown on Tooth 18 back in August 1997. Respondent told J.N. that the tooth may require extraction if it became symptomatic. J.N. failed to follow through with the treatment recommended for Tooth 18 in August 1997 and, instead, allowed her tooth to further deteriorate. An oral surgeon extracted Tooth 18. J.N. once again failed to return for her regular cleaning on the scheduled six-month interval. Instead, she did not return for a cleaning visit until August 3, 2000, ten months after her previous cleaning on October 25, 1999. The cleaning visit on August 3, 2000, was the first time the hygienist noted pocketing that exceeded normal limits. She noted significant pocketing in Teeth 6, 7, and 27. Two new X-rays were taken because it had been one year since the last X-rays. Oral hygiene instructions were given, as they had been at every hygiene appointment, with special attention to be paid by J.N. to the areas of newly appearing pockets. J.N. was warned that continued noncompliance with home care and resulting deterioration in her periodontal status would necessitate a referral to the periodontist. A follow-up appointment was given for six months. J.N. returned for a cleaning visit on February 8, 2001. The hygienist noted a slight increase in pocketing in Tooth 6. The pocketing noted in the other teeth at the August 3, 2000, visit remained unchanged. Respondent's hygienist advised J.N. on February 8, 2001, that if problems were not resolved at the next appointment, Respondent would refer J.N. to a periodontist. J.N.'s response to the hygienist was that Tooth 6 was at the side of her mouth where J.N. placed her cigarette and that J.N. would try to smoke on the other corner of her mouth. Decay was again noted in several areas, of which Teeth 4 and 21 were the most serious, and Respondent recommended appropriate treatment. On March 8, 2001, J.N. presented to Respondent to complain about the cosmetics of a facial composite on Tooth 11 placed two years before. J.N. was not concerned about the decayed teeth for which treatment had been planned. Respondent advised J.N. that she should be concerned about her continuous recurrent decay and advancing periodontal disease. Respondent prescribed a fluoride mouth rinse to help combat these conditions. Respondent also referred J.N. to the periodontist that J.N.'s husband had been seeing. Respondent discussed the need for J.N. to see a specialist because Respondent had done all that he could do in the face of her noncompliance. Respondent cautioned J.N. that if she wanted to save her remaining teeth she needed to seek out the specialist's help as soon as possible. The care and treatment of J.N. by Respondent satisfied the applicable standard of care. J.N.'s willful noncompliance with recommended treatment and care limited the effect of the care provided by Respondent. Respondent referred J.N. to appropriate specialists when J.N.'s condition warranted the referral, but J.N. did not follow the recommendations. J.N. did not follow the four-month cleaning intervals recommended by Respondent and Respondent's hygienist. J.N. did not keep regular cleaning appointments made by Respondent's office. J.N. presented for cleaning of her teeth at intervals of six months, 10 months, and 17 months. J.N. also failed to follow through with the treatment recommended by the periodontist. J.N. failed to attend phases two and three of the prescribed periodontal treatment. In addition, J.N. failed to present for alternating six-month periodontal cleanings. Respondent did not perform a comprehensive dental examination of J.N. on any single visit and did not charge J.N. for such an examination on a single visit. A comprehensive dental examination includes a soft-tissue examination, a temperomandibular joint evaluation, and a full-mouth series of X-rays. Over the course of Respondent's cumulative treatment of J.N., however, Respondent performed a full-mouth series of X-rays. The applicable standard of care did not require Respondent to perform a soft-tissue examination and temperomandibular joint evaluation. J.N. never complained of any soft-tissue related symptoms or temperomandibular joint symptoms. Such an examination and evaluation was not necessary. Respondent performed periodontal probing and charting for J.N. Respondent's hygienist properly examined J.N. on every cleaning visit with J.N. to determine the presence of pocketing. Respondent's office protocol is to chart only those pocket depths that exceed normal depths of one to four millimeters. When the hygienist noted abnormal pocket depths in August 2000, she charted the pocketing and created a record of the abnormal periodontal status. The applicable standard of care does not require normal findings to be charted and does not prescribe a specific format for periodontal charting. The periodontal documentation completed by Respondent's office adequately and accurately documents J.N.'s periodontal status. The evidence is less than clear and convincing that abnormal pocketing existed prior to August 2000 or that periodontal charting was not performed. The contrary assumptions of Petitioner's expert lack evidential foundation and support. Petitioner's expert also cannot testify within a reasonable degree of dental probability when J.N.'s periodontal disease began. The testimony of Respondent's expert was credible and persuasive. J.N. experienced episodic bone loss, likely associated with diet noncompliance, smoking, poor oral hygiene, and stress. Episodic bone loss can occur in less than two weeks. One example of a stressful event would be involvement in litigation. J.N. did experience a stressful event in May 2000. This event did lead to litigation. In May 2000, a patient under J.N.'s care at an area nursing home suffered more than 1,000 ant bites and died. In January 2001, J.N. and her employer were sued for this event. The State of Florida conducted an investigation of the event. The litigation subsequently settled out of court. The deterioration in J.N.'s dental condition, as documented in the Respondent's chart, coincided contemporaneously with the litigation that involved J.N. Up to that point, Respondent's records for J.N. indicate that despite J.N.'s lack of regular follow-up, her condition was being maintained, at least up to J.N.'s cleaning visit on August 3, 2000. At that visit, periodontal probing identified pocketing that exceeded normal limits. After that point, J.N.'s dental condition rapidly deteriorated. The evidence is less than clear and convincing that Respondent violated Subsection 466.028(1)(x) by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. In particular, the evidence is less than clear and convincing that Respondent undertook a diagnosis and treatment for which Respondent is not qualified by training or experience; that Respondent is guilty of dental malpractice; or that Respondent failed to perform periodontal charting. Respondent completed full-mouth radiographs of J.N. throughout his course of treatment of J.N. The evidence is less than clear and convincing that Respondent failed to: establish an appropriate treatment plan; recognize J.N.'s bone loss and overall dental condition; make appropriate and timely referrals; diagnose properly J.N. on or about February 8, 2001; or provide a proper treatment plan on February 8, 2001.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry enter a final order finding Respondent not guilty of violating Subsection 466.028(1)(x) and dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of August, 2003, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 29th day of August, 2003. COPIES FURNISHED: Daniel Lake, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Christopher J. Schulte, Esquire Burton, Schulte, Weekley, Hoeler & Robbins, P.A. Post Office Box 1772 Tampa, Florida 33601-1772 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William H. Buckhalt, Executive Director Board of Dentistry Department Of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issues in this case are presented on the basis of an Administrative Complaint brought by the Petitioner against the Respondent. Allegations set forth in that complaint pertain to the treatment of the patient Helen Gilmore. It is alleged that Respondent failed to record on the patient's records or perform the minimum examination procedures for vision analysis related to that patient in an examination of January 26, 1982. It is further alleged that on May 29, 1982, that the patient requested a duplicate copy of the original prescription obtained from the initial examination but Respondent instead performed a new eye examination and again failed to record on the patient records or perform the minimum procedures for vision analysis concerning this patient. In the face of these factual allegations, Respondent is said to have violated Sections 463.012 and 463.016(1)(g) and (h), Florida Statutes, and Rule 21Q-3.07, Florida Administrative Code.
Findings Of Fact At all times relevant to the Administrative Complaint, Respondent has been licensed as a practicing optometrist in the State of Florida, license No. 40616. During this sequence, Respondent has conducted his practice in Palatka, Florida. Respondent saw the patient Helen Gilmore on January 26, 1982. Ms. Gilmore was having difficulty with her present glasses related to vision in her left eye. Following an examination which took into account the minimum procedures for vision analysis set forth in Rule 21Q-3.07, Florida Administrative Code, Respondent issued a prescription for the patient which deviated from the prescription in the glasses which she was wearing at the time of the examination. Respondent charged $30 for the examination and prescription, which was paid by Gilmore. The prescription was presented to Eckerd's Optical Service in Palatka, Florida, in March 1982, at which time Reid obtained new lenses and frames. Ms. Gilmore paid Eckerd's for the lenses and frames. Having obtained the new frames and lenses from Eckerd Optical, Ms. Gilmore wore those glasses until she started having trouble focusing one of her eyes. Specifically, the patient was having trouble focusing on distant objects. Ms. Gilmore complained to Eckerd Optical about her problem several times. Eckerd Optical was unable to find the duplicate prescription related to the request for prescription by Dr. Reid and Gilmore was advised to return to Dr. Reid and receive a copy of that prescription from his office. In this regard, Dr. Reid's office, in the person of his wife, contacted Gilmore and asked if some problems were being experienced, to which Gilmore indicated that she was having difficulty with her eye and Mrs. Reid stated that Gilmore should return and have her eyes checked again by Dr. Reid. On May 29, 1982, Gilmore was seen by Respondent in his office. The purpose of this visit was to obtain a duplicate copy of the prescription which had been given by Dr. Reid on January 26, 1982 and Gilmore made this known to Respondent. Dr. Reid examined the glasses which Ms. Gilmore had purchased from Eckerd Optical and discovered that the lenses were not in keeping with the prescription which he had given to the patient in that the cylinder correction for astigmatism was not as prescribed and the bifocal had been made up round as opposed to flat. The variance in the prescription given and the prescription as filled was slight. Nonetheless Dr. Reid was of the opinion that it could cause and had caused discomfort to the patient, though not in the way of permanent damage. Having this in mind, instead of providing the duplicate copy of the prescription as requested, Respondent conducted a further vision analysis carrying out those procedures set forth in Rule 21Q-3.07, Florida Administrative Code. On the May 29, 1982 visit, and in the January 26, 1982, examination, Respondent failed to record on the patient's case record the indication that external examination including cover test and visual field testing had been done. Moreover, as established by the testimony of a qualified expert, Dr. Walter Hathaway, who is licensed and practices optometry in the State of Florida, the further examination was not optometrically indicated. This determination was made by Dr. Hathaway based upon the fact that Respondent should merely have provided a duplicate copy of the original prescription of January 26, 1982, as issued by Dr. Reid, having discovered the mistake in the efforts of Eckerd's to fill that prescription and allowed Eckerd's to rectify its error. Per Hathaway, it not being necessary to conduct further examination of the patient, to do so was outside acceptable community standards for the practice of optometry, Again, the opinion of Dr. Hathaway is accepted. As a result of the examination, Dr. Reid prepared a second prescription, which was unlike his January 26, 1982, prescription and the efforts at compliance with that prescription made by Eckerd's in fashioning the lenses. Gilmore was charged $35 for the examination and she paid the bill.
The Issue As to Case No. 89-5273, whether Respondent committed the offenses set forth in the Amended Administrative Complaint dated December 28, 1989, and, if so, the penalties that should be imposed. As to Case No. 89-6492, whether Respondent committed the offenses set forth in the Administrative Complaint dated October 31, 1989, and, if so, the penalties that should be imposed. As to Case No. 90-5801, whether Respondent committed the offenses set forth in the Administrative Complaint dated January 18, 1990, and, if so, the penalties that should be imposed. As to Case No. 90-5802, whether Respondent committed the offenses set forth in the Administrative Complaint dated March 9, 1990, and, if so, the penalties that should be imposed.
Findings Of Fact At all times pertinent to these proceedings, Respondent, Michael Albert, was engaged in the general practice of dentistry in the State of Florida. Respondent is the holder of license number DN0009815, which was issued by Petitioner and which authorizes him to engage in the practice of dentistry in the State of Florida. His office, known as "9 to 9 Family Dental Centre" 1/ , was located at 7015 Beracasa Way, Boca Raton, Florida 33433. CASE NO. 89-5273 - PATIENT S.D. Patient S.D. is a female who was born November 6, 1950. S.D. went to Respondent for the first time in May 1987, for a general examination and cleaning. S.D. had her four front upper teeth (teeth 7, 8, 9, and 10) capped when she was between 12 and 14 years of age. The cap on one of those teeth had been chipped and had begun to flake, and S.D. wanted that crown replaced. Respondent recommended to S.D. that she have those four caps replaced to maintain a match- up in color and also recommended that she have three other teeth (teeth 12, 14, and 31) capped because those teeth had open margins. S.D. knew that Respondent's recommendation to have teeth 7, 8, 9, and 10 recapped was based solely on aesthetic considerations. S.D. concurred with the recommendations as to teeth 7, 8, 9, and 10, and S.D. agreed to allow Respondent to perform the work that he had recommended on those teeth as well as the recommendations he made as to teeth 12, 14, and 31. Respondent took x-rays of S.D. and ultimately capped the seven teeth he had identified. S.D. was uncertain as to the order in which Respondent performed this work. Respondent's records reflect that S.D. visited Respondent on May 13, 1987, and on May 21, 1987, and that during those visits the Respondent capped teeth 7, 8, 14, and 31. Respondent's records further reflect that S.D. visited Respondent on May 28, 1987, and on June 15, 1987, and that during those visits the Respondent capped teeth 9, 10, and 12. S.D. had no complaints about the work performed by Respondent until she began to develop pain in a tooth that Respondent had capped. She returned to Respondent who replaced the crown on that tooth. The pain that S.D. had experienced went away after the crown was replaced, but S.D. had lost confidence in Respondent. Consequently, S.D. went to another dentist when it was time for her six month checkup. S.D. visited Dr. Clare Garner on March 28, 1988. Dr. Garner was of the opinion that S.D. needed a root canal and a new crown on tooth 31, that she needed a new post and core on tooth 7, and that she needed a root canal on tooth S.D. did not return to Dr. Garner for follow-up care. S.D. visited Dr. Michael Flax for the first time on April 4, 1988. During subsequent visits in April and May of 1988, Dr. Flax performed root canal therapy on teeth 7 and 31. S.D. later experienced pain in tooth 10. Dr. Flax performed an apicalectomy on tooth 10 and determined that tooth 10 had a fracture at the apex which he believed was caused by an oversized post being placed inside of the tooth. Dr. Flax did not know who placed the post. S.D.'s last visit with Dr. Flax was on September 8, 1988. Dr. Flax recommended a general dentist to "take care of her crowns". 2/ There was no competent, substantial evidence that the initial crowns done by Respondent had any open margins. Respondent used a panorex x-ray together with bite-wing x-rays in performing his work on S.D. There are some areas that one can see on a periapical x-ray that one cannot see on a panorex x-ray. Likewise, there are areas that one can see on a panorex x-ray that one cannot see on a periapical x- ray. There was dispute among the experts as to whether Respondent should have also used a periapical x-ray in performing his work on S.D. Petitioner's experts clearly preferred to use periapical x-rays. The greater weight of the evidence, however, is that a panorex x-ray can provide sufficient detail when used with the bite-wing x-rays. There was no evidence that the original panorex x-ray upon which Respondent based his diagnosis had insufficient detail. The record failed to establish by clear and convincing evidence that Respondent's use of the panorex x-rays and the bite-wing x-rays fell below minimum standards of care. Dr. Flax testified that Tooth #7 should have been pulp tested for vitality before any further prosthetics were placed onto the tooth. However, he did not testify that the failure to pulp test Tooth #7 for vitality fell below minimum standards. Dr. Flax also testified that another tooth (which was not identified by number) should have been retreated with a root canal before a crown was placed on top of it. Dr. Flax did not testify that the failure to perform this root canal prior to placing the crown fell below minimum standards. Dr. Flax also testified that there was a crack in the apex of tooth #10 due to an incorrectly placed or incorrectly sized post within the tooth. He did not testify that the placing of the post fell below minimum standards and he did not know whether Respondent placed the post. Symptomatic periapical abscesses can develop at any time. The record fails to establish by clear and convincing evidence that there was a periapical abscess that existed at the time Respondent treated S.D. or that the failure to either treat or diagnosis any abscess was below acceptable standards of care. The record fails to establish by clear and convincing evidence that the root canals performed by Dr. Flax were necessary because of substandard treatment by Respondent. There was no testimony that the records maintained by Respondent were inadequate. CASE NO. 89-6492 - PATIENT E.M. E.M. is a female who 73 years of age when she first visited Respondent on April 14, 1988. The initial visit was prompted by pain from an abscess. Respondent performed root canal therapy on E.M.'s teeth 18 and 26. Between April 14, 1988, and October 5, 1988, Respondent fitted E.M. with a complete denture on her upper arch and with a bridge on her lower. The upper denture placed by Respondent did not fit correctly. On a subsequent visit, Respondent did a chair side reline of E.M.'s upper denture. There was disagreement among the expert witnesses as to whether the chair side reline was appropriate since E.M. was an edentulous patient. This conflict is resolved by finding that the chair side reline performed by Respondent did not fall below minimum standards of care. There was a substantial and significant personality disagreement between E.M. and Respondent and his staff. E.M. was unhappy with the services performed by Respondent and complained that the upper plate did not fit correctly even after the chair reline. As a result of this disagreement, E.M. refused to return to Respondent for follow-up care to adjust her dentures. Although there was testimony that Respondent should have been able to better fit E.M.'s upper denture initially, the greater weight of the evidence and the more persuasive expert testimony is that follow-up care is important for the proper fitting of dentures. Dentures have to be adjusted on the average eight times before the fit is proper and the normal break-in period for dentures is between two and six months. E.M.'s refusal to submit to follow-up treatment contributed in large part to the dissatisfaction she had with the dentures fitted by Respondent. Although E.M. complained of pain, she had not seen any dentist for over two years. At the time she was examined by Dr. Martin Staub, Petitioner's expert, on February 17, 1989, she was still able to wear the dentures that Respondent had prepared for her. Dr. Staub found that the denture adaptation was poor in the post-dam area causing the denture to slip and to have insufficient suction. Dr. Staub found that the denture finish was rough and inconsistent due to excess pieces from the reline adhering to the buccal portion of the denture and being too thick in the palatal area. Despite these findings, Dr. Staub testified that he considered Respondent's performance as a dentist had fallen below minimum standards of care only in that he should have been more patient with E.M. and that he should have been more caring and compassionate. 3/ Dr. Staub's report reflected a finding that there were open margins on teeth 19, 27, and 31. During his cross examination, he admitted that the tooth he reported as being tooth 27 could have been another tooth since Respondent's records reflect that tooth 27 had been extracted. Consequently, there would not have been a margin on tooth 27. Respondent placed the crowns on E.M.'s teeth 19 and 31 with temporary cement because Respondent anticipated that she would require periodontal treatment due to her poor oral hygiene. There was a dispute among the expert witnesses as to whether the margins that Dr. Staub observed were caused by substandard treatment by Respondent. This conflict is resolved by finding that the evidence fails to clearly and convincingly establish that these margins were the result of substandard care by Respondent. These margins could have resulted from causes that should not be attributed to Respondent. For example, there was testimony that the margins could have resulted from the temporary cement washing out or by natural changes in E.M.'s mouth. Petitioner failed to establish that the dental care and treatment rendered E.M. by Respondent fell below minimum standards of care. CASE NO. 90-5801 - PATIENT H.F. H.F. is a female who was born April 6, 1970. H.F. resided in Atlanta, Georgia, at the time of the formal hearing, but she resided in Boca Raton, Florida, with her family when Respondent examined her. H.F. was examined for the first time by Respondent on August 20, 1987. On August 2, 1988, H.F. returned to Respondent for a checkup and cleaning. Respondent diagnosed cavities in H.F.'s teeth numbers 3, 14, 15, 18, 20, 29, and 31, and presented H.F. with a treatment plan requiring all seven teeth to be filled and called for amalgam restorations. In making his diagnosis, Respondent took x-rays of her teeth, visually inspected her mouth, and probed her teeth with the use of an explorer. H.F. did not return to Respondent to have her teeth filled. On August 19, 1988, H.F. went to Dr. Anders K. Finnvold, her mother's dentist, for a second opinion. Dr. Finnvold conducted a thorough examination of H.F. Dr. Finnvold examined a copy of the x-rays that Respondent had taken of H.F., visually inspected her mouth and probed her teeth with the use of an explorer. Dr. Finnvold found no cavities. On October 12, 1989, Dr. Finnvold examined H.F. for the second time and again found no cavities. On August 2 or 3, 1990, Dr. George C. Karr, one of Petitioner's expert witnesses, examined H.F. and found clinical decay on teeth numbers 2, 3, 14, 15, and 18. Dr. Karr did not find any cavity on H.F.'s teeth numbers 20, 29, and Dr. Karr considered H.F. to have poor oral hygiene. Dr. Karr was of the opinion that Respondent had misrepresented H.F.'s condition and that his treatment plan was over-zealous and below minimum standards. A caries is a technical term for a cavity or a hole in the tooth and results from acid dissolution of the enamel and/or dentin structure of a tooth. Poor oral hygiene contributes to the development of caries. H.F. had poor oral hygiene. A caries may be diagnosed by use of an x-ray, by visually inspecting the mouth, by probing the teeth with an explorer, or by a combination of those diagnostic means. In diagnosing caries by use of an explorer, the dentist is making an educated assumption based on the resistance the dentist feels in probing a pit or fissure. In making this educated assumption, the dentist should consider the patient's oral hygiene and the patient's susceptibility to developing cavities. A catch or resistance when using an explorer indicates that either a fissure has become carious or has the probability of becoming carious. If a sharp explorer is used and it hangs on the teeth, that is indicative that there is either decay present or a situation of pre-decay. It is within acceptable standards of care to recommend filling those areas. The evidence was clear that the detection of cavities by use of an explorer is a difficult task, and that legitimate differences of opinion can occur. The disagreements between Respondent, Dr. Finnvold, and Dr. Karr illustrate that difficulty. Respondent used a sharp explorer to examine H.F.'s teeth. The explorer grabbed or stuck on teeth 3, 14, 15, 18, 20, 29, and 31, and he believed that each of those teeth should be treated in the manner he recommended. It is dentally improper to deliberately misrepresent the existence of decay and the need for treatment. However, the fact that Respondent was of the opinion that there existed cavities that Dr. Finnvold and Dr. Karr did not detect does not establish, clearly and convincingly, that Respondent deliberately misrepresented H.F.'s condition or that he failed to practice within acceptable standards of care. CASE NO. 90-5802 - PATIENT L.M. During the summer of 1987, L.M. presented to the Respondent for routine dental care. This was L.M.'s initial visit. Respondent examined L.M., took x-rays, and then advised L.M. that he suspected that she had a little problem with her gums. Respondent directed her to Dr. Rosa, 4/ a periodontist who worked in the same dental office as Respondent. Respondent advised Dr. Rosa that he felt that L.M. had a problem with her gums and asked Dr. Rosa to examine her. Dr. Rosa diagnosed periodontal breakdown and recommended an extensive treatment plan for L.M., which included root planing, dental wedge procedures, and osseous surgery. The estimate for the work to be performed was given to L.M. on a form which reflected that it was from "9 to 9 Dental Centre". Although it was established that "9 to 9 Dental Centre" was the name of the dental office in which Respondent practiced, and that L.M. associated that name with that of Respondent, there was no showing as to how or why Respondent should be held responsible for acts of Dr. Rosa. The evidence clearly establishes that Respondent was not acting below accepted standards merely in recommending that a periodontist with whom he worked examine a patient he thought may have a periodontal problem. The record does not establish that Respondent misrepresented L.M.'s condition when he asked Dr. Rosa to examine her. Petitioner's experts who later examined L.M. established that L.M. did not have periodontal problems that would justify the recommended treatment plan proposed by Dr. Rosa.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which adopts the findings of fact contained herein and which dismisses all charges brought against Respondent in Case No. 89-5273, which dismisses all charges brought against Respondent in Case No. 89-6492, which dismisses all charges brought against Respondent in Case No. 90-5801, and which dismisses all charges brought against Respondent in Case No. 90-5802. RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of November, 1991. CLAUDE B. ARRINGTON 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 27th day of November, 1991.
Findings Of Fact Dr. Norman S. Bateh is the Petitioner in this matter and is an unsuccessful candidate on the optometry (theory and practice) licensing examination administered by the Respondent Board of Optometry on July 23 through 25, 1983. The development of, an examination by this Board reflects careful planning and consideration to ensure it fairly tests an applicant's knowledge of the subject matter. Prior to the preparation of a particular examination, a large pool of questions is developed from numerous professional and academic sources. After the examination is given, an analysis of it is conducted to see how the questions are received by the examinees. Examinees are given the opportunity to contest particular questions after the examination has been administered. Based on the Board's analysis of the test results, any question that was answered correctly by less than 58 percent of the examinees, in addition to those questions contested by the examinees are sent for verification to the Board's consultants, in this case Drs. Pappas and Chrycy. If, upon review by the consultants, it appears a question was incorrectly graded, ambiguous, unclear, or unfair; or if, in the consultant's opinion, there is any sort of problem with the question, all examinees are given credit for it. Passing grade on the 100-question, multiple-choice examination was 70 percent. Petitioner was initially awarded a grade of 66, but on review, at his request, of several of the questions which were graded as wrong, he was awarded two more points, which brings his grade to 68, still two points below passing. He was ranked 98th out of 103 examinees. Petitioner challenges four questions at this hearing as being either improperly graded or invalid because the question is incapable of a correct answer. These questions are numbered 8, 31, 73 and 78 and will be discussed individually, infra. If Petitioner's answer is determined to be correct, he will be awarded one point credit for that question. If any question is determined to be invalid for any reason, Petitioner will be awarded one point credit for that question. Question 8 on the examination read: Intraocular lens placement after cateract extraction results in an image magnification of approximately: 0% 4% 9% D. 25% Petitioner's answer on the examination was "C. 9%." The Board's correct answer was "B. 4%." Petitioner presented the testimony of an ophthalmologist, Dr. Schnauss, who has performed the operation to implant intraocular lenses between 500 and 600 times. As an expert who has used the lenses in his practice frequently and as consultant to one .of the major manufacturers of these lenses, e states unequivocally the degree of magnification is less than 1 percent, but not 0 percent. The further away from the location of the original lens of the eye, the greater the magnification. Since the lens implant is close to the plane of the original eye lens, there would be little magnification. Therefore, notwithstanding the conclusions of the Respondent's experts, Dr. Pappas and Dr. Chrycy, both consultants to the Board of Optometry, who cite Duane, Clinical Ophthalmology, Vol. I, as authority, no answer listed as an option on the examination is clinically correct. However, 52 percent of the candidates who took this particular examination gave the Board's correct answer. Question 31 on the examination read: Which of the following would you consider a positive scotoma: the blind spot Evan's angia-scotomas Seidel's scotoma muscae volitantes Petitioner's answer on the examination was "C. Seidel's scotoma." The Board's correct answer was "D. muscae volitantes." A scotoma is a blind spot in the patient's vision. Positive scotomas are those which are noticeable by the patient as he sees. Negative scotomas are not noticeable to the patient, but show up under test. A Seidel's scotoma, which is an extension of a blind spot, would not be a positive scotoma because the patient would not see it in the visual field. The Board's preferred answer, muscae volitantes, was attacked by Petitioner's experts as being inaccurate since they are bits of floating protein substance in the eye which, .though they are opaque and create a block to vision where they exist, are not true blind spots because they are not a defective area in the eye and they move. They are blind only because they temporarily block vision, not because they are a defect in the eye. Therefore, while muscae volitantes are, technically, positive scotomas where they exist, the question is inartfully drawn, vague and confusing, a conclusion supported by the fact that only 28 percent of the candidates got the correct answer. This low figure, to Mr. Gustafson, Respondent's test statistician, is insignificant. However, a question so confusing that only 29 of 103 examinees get it right and which is capable of such substantial meritorious argument on both sides is truly vague. Question 73 on the examination read: A keratoconus patient with "K" readings of 46.00 x 52.00 can best be fitted with which lens: a spherical firm lens a soft lens with overglasses a bitoric gas permeable lens with light touch on the cone a bitoric gas permeable lens with heavy touch on the cone Though Petitioner testified his answer was "D," and he defended it at the hearing, his answer on the examination was "A." The Board's correct answer was "C." The prime consideration in this question is the touch of the lens, not the issue of hard or soft, or gas permeability. The most current edition of Mandell's textbook and the majority of optometrists today feel that the best choice of lens for fitting a keratoconus patient is the bitoric gas permeable lens with light touch. The opinion of the "majority of optometrists" referred to by Dr. Chrycy was garnered in discussions with a personal friend who, as a Fellow of the American College of Optometry, had recently attended a meeting of that body where this exact subject was, discussed and that opinion rendered. Petitioner cited an earlier edition of Mandell's work to urge the position that a firm lens is required to contain the protrusion of the dark part of the eye that comes along with keratoconus. Later opinion, however, changes that position which is now no longer considered the better treatment. Petitioner also challenged the "K" readings in the question as being unreliable. Unfortunately by doing so, reasonable asthat might be in the practice of optometry, he read into the question a factor that was neither present nor intended by the examiners. The "1(" readings in this question were agiven quantity. Petitioner's treating them as a "trick" was an unfortunate mistake. It is also pertinent to note that 71 of the 103 examinees (69 percent) chose the correct answer to this question. Question 78 on the examination, the fourth and last one challenged by Petitioner at the hearing, reads: The extraocular muscle most frequently involved in extropia is the medial rectus superior rectus lateral rectus superior oblique Petitioner's answer was "C. lateral rectus." The Board's correct answer was "A. medial rectus." The term "extropia" means a turning outward of the eye. The term "extraocular" means outside the eye. The medial rectus muscle is the muscle between the eye and the nose which pulls toward the center of the face. The lateral rectus muscle is that on the outward part of the eye which pulls toward the ear. In a normal individual, the muscles, of equal strength, balance each other and the eye looks forward unless the person involved moves it. Extropia is caused when there is an imbalance of the muscles, either by a weakening of the medial rectus, which allows the normallateral rectus to overpower it, or by an unnatural strengthening of the lateral rectus which then overpowers the normal medial rectus. By far the greater weight of optometric opinion, based on observation and testing, reveals that the most frequent" cause of this condition is the weakening ofthe medial rectus, leaving the lateral rectus normal. Consequently, the correct answer is not lateral rectus as claimed by Petitioner, but the medial rectus as stated by the Board,notwithstanding even the Board's expert, witness testified there is no definitive authority to support the Board's choice. In this case, 64 percent of the examinees chose the correct answer.
Recommendation Based on the foregoing, it is RECOMMENDED: That a final order be entered finding that Petitioner should be awarded one additional point credit for Question 31 and that he, nonetheless, failed to achieve a passing score on the July, 1982, optometry examination. RECOMMENDED this 19th day of August, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1983. COPIES FURNISHED: Abraham I. Bateh, Esq. 2124 Park Street Jacksonville, Florida 32204 Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Rochep Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ms. Mildred Gardner Executive Director Board of Optometry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether Petitioner is entitled to a passing grade on the chiropractic examination.
Findings Of Fact Petitioner took the November 1999 examination for chiropractic licensure. He passed the written part and the technique portion of the practical part. However, Petitioner failed the physical diagnosis and X-ray interpretation portions of the practical part. The physical diagnosis portion of the examination supplies candidates with a brief case history followed by several questions. Score sheets provide standards for the scoring of responses. Question 3 of the physical diagnosis portion of the examination requires the evaluators to ask the candidate to demonstrate and describe an abdominal examination and explain the significance of a digital rectal examination on the patient, who has complained of cramping, bloatedness, and distention, as well as alternating stool consistency with an irregular pattern of defacation. The evaluators assigned Petitioner no points for his responses to Question 3. For the demonstration of an abdominal examination, Petitioner failed to ensure that the abdominal muscles were relaxed in order to permit a useful examination. Petitioner attempted to listen to the spleen, prior to performing percussion and palpation, but he was not in the left lower quadrant, which is the location of this organ. Petitioner palpated the abdominal area with his fingertips, rather than his palms, and failed to perform deep palpation. Petitioner also failed to outline the liver in his demonstration. The purpose of the digital rectal examination, for this patient, was to detect blood or a palpable lesion. Petitioner incorrectly responded that the purpose of this examination was to perform a prostate examination. Petitioner's misdiagnosis of diverticulitis, in response to Question 8, reflects his limited insight into this patient's condition, for which the correct diagnosis was irritable bowel syndrome, colitis, or spastic colon. Question 17 of the physical diagnosis portion of the examination required a demonstration of the gluteus maximus and peroneus muscles. The evaluators credited Petitioner for the correct demonstration of the gluteus maximums, but not the peroneus. Petitioner incorrectly grasped the patient's calf and ankle, which precluded the isolation of the peroneus. Failing to grasp the metatarsal end of the foot prevented Petitioner from properly isolating the peroneous muscle. At the hearing, Respondent gave Petitioner full credit for his response to Question 24 of the physical diagnosis portion of the examination. Question 3 of the X-ray interpretation portion of the examination required Petitioner to examine two X-ray films, taken two years apart, and render a probable diagnosis. The vast destruction of bone mass suggested a case of neuropathic joint resulting from syphillis, but Petitioner diagnosed post-traumatic joint disease, focusing instead on the patient's physically demanding profession and her age of 37 years. However, the extensiveness of bone destruction over a relatively short period favored the diagnosis of neuropathic joint over Petitioner's diagnosis. Question 5 of the X-ray interpretation portion of the examination required Petitioner to identify the anatomical structures outlined at lumbar-3 on a specific X-ray. Petitioner identified the structures as lamina, but they were the pars interarticulares, which are isthmus between the lamina and pedicle. Question 38 of the X-ray interpretation portion of the examination required Petitioner to explain why the neural foramen, as revealed on an X-ray, appeared enlarged. Rather than cite the nondevelopment of the cervical-6 pedicle, Petitioner incorrectly chose neurofibromatosis, despite the failure of the exposed structures to reveal the angularity characteristic of this condition and the absence of any bony structure subject to the process of deterioration resulting from neurofibromatosis. Despite the concession by Respondent on Question 24 on the physical diagnosis portion of the chiropractic licensure examination, Petitioner has failed to prove that he is entitled to additional credit on the physical diagnosis or X-ray interpretation portion of the chiropractic licensure examination that he should have passed either portion of the examination.
Recommendation It is RECOMMENDED that the Board of Chiropractic enter a final order dismissing Petitioner's petition. DONE AND ENTERED this 26th day of September, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 2000. COPIES FURNISHED: Joe Baker, Jr., Executive Director Board of Chiropractic Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-3257 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Gregory W. Stancel 2256 Iris Way Fort Myers, Florida 33905 Cherry A. Shaw Senior Examination Attorney Department of Health General Counsel's Office 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
The Issue The issues in this case are framed by the parties' Joint Pre-Hearing Stipulation. Essentially, they are whether, in connection with his care and treatment of two patients, R.B., and D.T., the Respondent, who is an opthalmologist, violated Section 458.331(1)(t) and (m), Fla. Stat. (1993), 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; or (m) failure to keep written medical records justifying the course of treatment of the patients.
Findings Of Fact The Respondent, Carlos A. Solorzano, M.D., is licensed to practice medicine in Florida. He holds license ME 0041368. The Respondent practices in the field of opthalmology. He is not Board-certified. Patient R.B. The patient, R.B., a 92 year-old female, was referred to the Respondent and was seen for the first time on February 2, 1988. The Respondent diagnosed chronic uveitis (inflammation) in both eyes, secondary cataracts in both eyes, and secondary glaucoma in the right eye. The Respondent prescribed two medications (inflamase and atropine). When R.B. was next seen by the Respondent on February 11, 1988, the Respondent prescribed a third medication (betagan) and recommended a YAG laser iridotomy on the right eye to relieve high pressure. In performing an iridotomy, the opthalmologist bores a hole in the iris to relieve abnormal pressure in the eye (glaucoma). Sometimes, especially when glaucoma is caused by active uveitis, a patient can be treated effectively by controlling the inflammation solely with medication and later dilating the pupil. If successful, medical treatment obviates the need for surgery. In the case of R.B., medical treatment was not and would not be successful. As a result of chronic uveitis, R.B. had a history of abnormally high pressures in the eye. In addition, and of even more concern, the pressures were subject to "spiking" seriously high pressures. Whereas pressures of 21 mm of Mercury (Hg) are considered high normal, R.B. had readings of 38 mm Hg in both eyes on January, 24, 1988. On her first visit to the Respondent on February 2, 1988, the readings were 30 mm Hg in the right eye and 20 mm Hg in the left eye. On her second visit to the Respondent on February 11, 1988, the readings were 29 mm Hg in the right eye and 19 mm Hg in the left eye. Clearly, the Respondent's recommendation that R.B. have an iridotomy performed on her right eye was within that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The Respondent's records indicate that, instead of an iridotomy, the Respondent performed an iridoplasty on R.B. on March 23, 1988. In an iridoplasty, the opthalmologist treats the surface of the iris with laser energy to cause some shrinkage and change of shape in the iris but does not bore a hole through the full thickness of the iris. The Respondent's medical records do not explain why an iridoplasty was performed on March 23, 1988, instead of the recommended iridotomy. The Respondent has no independent recollection of which procedure he performed and can only speculate that, if in iridoplasty was performed, perhaps it was because he was unable to complete the iridotomy and did an iridoplasty instead in preparation for a subsequent iridotomy. In that respect, the Respondent's written medical records were insufficient to justify the course of treatment of the patient. On March 28, 1988, the Respondent saw R.B. again and recommended an iridotomy on the left eye. The patient's left eye pressure reading on that day was 14 mm Hg, well within normal range. Other left eye pressure readings also were within normal range, although closer to high normal: 20 mm Hg on February 2, 1988; and 19 mm Hg on February 11, 1988. But there also was the history of a 38 mm Hg "spike" on January 24, 1988, and the history of abnormally high pressures in the patient's right eye. Despite the normal readings for the left eye, taking all of the pertinent factors into consideration, it was not proven that the Respondent's recommendation of an iridotomy for the left eye was below that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. (A subsequent "spike" 76 mm Hg in April, 1990, further validated the recommendation.) The Respondent performed an iridotomy on R.B.'s left eye on April 20, 1988. The Respondent's medical records do not reflect the absence of cells or flares until an entry on June 6, 1988. The Respondent does not always record what he considers to be "negative findings." "Negative findings" should sometimes be recorded if they are pertinent and necessary, but these "negative findings" are subsumed in the diagnosis of chronic, rather than active, uveitis. Patients undergoing an iridotomy procedure should be seen for follow- up care within one to three days to ensure that the opening is patent, that the symptoms are relieved, and that no secondary inflammation is present. As indicated, the Respondent saw the patient, R.B., on March 28 and on April 25, 1988. The Respondent's records for those visits indicate intraocular pressures, but otherwise the Respondent's written medical records for any follow-up care on those dates were insufficient. (The March 28, 1988, records indicate an evaluation and recommendation for a iridotomies for both eyes but do not address the March 23, 1988, procedure on the right eye. The April 25, 1988, records do not address the April 20, 1988, procedure on the left eye.) The records for both of those visits indicate prescriptions for atropine, betagan, and inflamase. The next visit indicated in the Respondent's records for R.B. was June 6, 1988. At that time, the Respondent recommended a lensectomy and vitrectomy for the left eye, which he performed on August 30, 1988. A lensectomy is the removal of the lens. A lensectomy is indicated under several different circumstances. It is appropriate when a less involved cataract procedure cannot be performed, or when the anterior approach to removing a cataract cannot be utilized. A vitrectomy is the removal of the vitreous, the jelly-like material in the globe of the eye. A vitrectomy also is indicated under various different circumstances, including: biopsy; infection; blood in the eye; inflammation; and retinal repair. In the case of the patient, R.B., there was no improvement in the patient's vision (hand movement, only, in the left eye), despite the use of a strong corticosteroid, a beta blocker, and a strong pupil dilator. The patient continued to suffer from the effects of chronic uveitis. Synequies, or adhesions, continued to prevent fluid from escaping. The patient also had thick cataracts and membranes in the vitreous that were obscuring vision. Under these facts, it was not proven that the lensectomy and vitrectomy on the left eye were below that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The lensectomy and vitrectomy were safer than ordinary cataract surgery in this patient and safer than not doing anything. But the Respondent's written medical records were insufficient to justify the course of treatment of the patient. They did not adequately explain the reasons for the Respondent's recommendations. Patient D.T. The patient, D.T., was referred to the Respondent for evaluation regarding a detached retina at the seven o'clock position in the right eye. On September 28, 1988, the Respondent performed a procedure known as cryopexy to reattach the patient's retina. In cryopexy, the opthalmologist applies liquid nitrogen to the area of detachment. The low temperature of the liquid nitrogen (minus 60o centigrade) causes inflammation and scarring. The scarring reattaches the retina. It was the Respondent's responsibility to check the pressure in the liquid nitrogen tank supplied by the hospital facility the Respondent was using. He failed to check the pressure and, unfortunately, it was low. The Respondent attempted the procedure despite the low pressure in the liquid nitrogen tank but was not sure if it would be effective. The Respondent wanted to proceed with a follow-up procedure using a laser to be sure the reattachment succeeded, but the patient declined. In part in order to further facilitate reattachment pending the laser procedure, the Respondent injected air into the eye to serve as an internal tamponade to put pressure on the point of reattachment to hold it in place. (Other reasons for injecting air in the eye were to maintain proper intraocular pressure and to keep fluid away from the point of reattachment for access and visibility during the subsequent laser procedure.) Unfortunately, due to gravity and the inferior position of the retinal detachment, the internal tamponade only would be effective if the patient maintained a face-down position. On follow-up the next day, the patient was maintaining proper position and the laser procedure was scheduled for the following day. But on preop evaluation on September 30, 1988, the patient was found to be in sitting position, and it was not possible to perform the laser procedure. Instead, the Respondent recommended redoing the operation. The patient declined, preferring to "wait a few days." During follow-up evaluation on October 4, 1988, it was determined that the cryopexy had been at least partially successful after all, despite the low liquid nitrogen pressure. Pigment 1+ was seen, indicating inflammation and scarring, and the area of detachment of the retina appeared to be smaller. The macula remained attached. During another evaluation October 7, 1988, it was noted that the macula still remained attached. Although the Respondent urged the patient, D.T., to have the cryopexy procedure on the right eye repeated more quickly, the patient wanted to wait, and the Respondent repeated the procedure on October 14, 1988. It was not proven that the delay in repeating the procedure was below that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The initial procedure apparently was at least partially successful, and the macula remained attached. In addition, inferior retinal detachments usually do not extend quickly, and it was not proven that there was any urgency in repeating the procedure. The Respondent's medical records do not include any indication that he advised or encouraged the patient not to wait until October 14, 1988, to have the cryopexy procedure repeated, but it was not proven that this omission was below that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The Respondent testified that he saw the patient at her home on several occasions but his medical records make no mention of any such visits. It became apparent from participating in the final hearing (and can be surmised to some extent from the Respondent's "proposed findings of fact") that the Respondent's biggest difficulty in the practice of medicine may be the difficulty he has in communicating (at least in English). It is possible that patients and other physicians perceive incompetence when they do not understand what the Respondent is telling them, whether orally or in writing. His difficulty with written English may contribute to the inadequacy of some of his medical records.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a final order: (1) finding the Respondent guilty of violating Section 458.331(1)(m), but not (t), Fla. Stat. (1993); (2) reprimanding him; and (3) imposing a $1,000 administrative fine. RECOMMENDED this 31st day of May, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 31st day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5118 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-17. Accepted and incorporated to the extent not subordinate or unnecessary. 18.-20. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence. Accepted. Subordinate to facts found. (The diagnosis was chronic, not active, uveitis.) Rejected as not proven. (Cells and flares indicate active uveitis.) Accepted. Subordinate to facts found. See 21., above. 24.-26. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence. Accepted and incorporated. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence as to intraocular pressure. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 29.-32. Accepted and incorporated to the extent not subordinate or unnecessary. 33.-35. Accepted and incorporated. 36.-37. Accepted and incorporated. However, there also are other indications. Accepted and incorporated. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence as to "indications"; accepted and incorporated as to "discussion." Accepted and incorporated. Accepted and incorporated as to inadequate medical records; otherwise, rejected as not proven and as contrary to facts found and to the greater weight of the evidence. 42.-44. Accepted and incorporated. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence. (It was at least partially successful and may have been completely successful, but the Respondent was unsure due to the low pressure and wanted to repeat the procedure to make sure.) Accepted. Subordinate to facts found. (The medical records were written before subsequent follow-up evaluation showed successful cryopexy.) 47.-48. Accepted and incorporated. (As to 48., there also were other reasons for it.) Rejected as not proven and as contrary to facts found and to the greater weight of the evidence that it was "necessary due to insufficient freezing." (The Respondent thought it was appropriate due to questions he had about the efficacy of the cryopexy and for other reasons.) Accepted but subordinate and unnecessary. (The Respondent did not perform a pneumatic retinopexy.) Rejected as not proven that it would not be "viable." Accepted that it was not appropriate, but subordinate and unnecessary. See 50., above. Also, rejected as not proven that "the patient could not be positioned to cause the desired effect." Rejected as not proven and as contrary to facts found and to the greater weight of the evidence that "the Respondent was advised." (The Respondent made the determination.) Otherwise, accepted and incorporated. 53.-54. Accepted and incorporated. Accepted but subordinate and unnecessary. Rejected as as not proven and as contrary to facts found and to the greater weight of the evidence. 57.-58. Accepted and incorporated. Accepted but subordinate and unnecessary. First sentence, accepted and incorporated. Second sentence, rejected as not proven and as contrary to facts found and to the greater weight of the evidence. See 45., above. 61.-65. Accepted but subordinate and unnecessary. 66.-67. Rejected as not proven and as contrary to facts found and to the greater weight of the evidence. Respondent's Proposed Findings of Fact. (The Respondent's "proposed findings of fact" were presented in an unorthodox fashion that makes ruling difficult. He introduced a subject on a sheet of paper, sometimes commented on the subject, and attached copies of medical records in evidence that relate to the subject. These rulings are restricted to the Respondent's comments and attempt to follow the format chosen by the Respondent. No rulings are made on the attached copies of medical records as they are accepted but subordinate.) FACTS RELATED TO PATIENT #1, RB LASER PROCEDURES. Accepted and incorporated to the extent not subordinate or unnecessary. REGARDING HIGH INTRAOCULAR PRESSURE. Accepted but subordinate. (Only copies of medical records.) REGARDING A VERY HIGH SECOND EPISODE OF INTRAOCULAR PRESSURE. Accepted but subordinate. (Only copies of medical records.) POINT REGARDING THE APPOINTMENTS. As to R.B., accepted but subordinate and unnecessary. As to the other patients, rejected as not supported by any evidence. PATIENT RB DIDN'T HAVE ACTIVE UVEITIS . . .. First sentence, accepted and incorporated. Second sentence (regarding slit lamp), accepted but subordinate and unnecessary. (AHCA apparently has dropped the charge that the Respondent did not use a slit lamp and that his records did not reflect its use.) THE SURGICAL PROCEDURE LENSECTOMY VITRECTOMIE [sic]. Generally accepted and incorporated to the extent not subordinate or unnecessary. REGARDING SLIT LAMP EXAMINATIONS. Accepted but subordinate and unnecessary. (Based on its proposed findings of fact, the AHCA apparently has dropped the charge that the Respondent did not use a slit lamp and that his records did not reflect its use.) FACTS RELATED [TO] PATIENT #2, DT PAGE# 5. Accepted and incorporated. PAGE# 6. Accepted and incorporated. PAGE# 7. Accepted (assuming "denied to" means "refused to") but largely subordinate and unnecessary. Only "home visits" comments are incorporated. PAGE# 8. Accepted but subordinate and unnecessary. (Based on its proposed findings of fact, the AHCA apparently has dropped the allegation that the proliferative vitreous retinopathy occurred between the two surgeries.) PAGE# 9. Accepted and incorporated to the extent not subordinate or unnecessary. PAGE# 10. Accepted and incorporated to the extent not subordinate or unnecessary. PAGE# 11. Accepted but subordinate and unnecessary. (Based on its proposed findings of fact, the AHCA apparently has dropped the charge that, after the second surgery, the Respondent did not advise the patient concerning alternatives such as pars plana vitrectomies.) PAGE# 12. Accepted but subordinate and unnecessary. (Based on its proposed findings of fact, the AHCA apparently has dropped the charge that the Respondent went on vacation in October, 1988.) COPIES FURNISHED: Britt Thomas, Esquire Agency for Health Care Administration Department of Business and Professional Regulation 1940 North Monroe Street Northwood Centre - Legal A Tallahassee, Florida 32399-0792 Carlos A. Solorzano, M.D., pro se 7211 North Dale Mabry Highway, #101 Tampa, Florida 33614 Dr. Marm Harris Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Northwood Centre Tallahassee, Florida 32399-0792 Jerome W. Hoffman, Esquire General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
The Issue Whether Respondent's license as a physician should be disciplined for alleged violations of Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, as set forth in the Administrative Complaint.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.42, Florida Statutes, Chapter 456, Florida Statutes, and Chapter 458, Florida Statutes. Respondent is and has been at all times material hereto a licensed physician in the state of Florida, having been issued license number ME 0056502, and currently practices with Florida Radiology Associates, Altamonte Springs, Florida. Respondent is Board certified in Diagnostic Radiology and Nuclear Medicine. A mammogram is an examination constructed with a dedicated x-ray device, and dedicated x-ray film and dedicated holders for the film. The breast of a person is placed between a compression plate and a holder. The breast tissue is compressed to provide a maximum exposure of the breast tissue. A x-ray beam is shined through the breast tissue and the image is recorded on x-ray film. A mammogram is generally done in two projections craniocaudal (CC view) and medio lateral oblique (MLO view). The CC view is performed with a vertical beam. The x-ray is shot straight up and down and the breast tissue is compressed in a horizontal fashion. The MLO view is performed in a similar fashion, side to side. Mammography is a screening tool to identify breast cancer. A screening mammogram is performed annually. A diagnostic mammogram is generally done at a shorter time period, whether within three months or six months post identified new density. The base line mammogram should be performed between the ages of thirty-five and forty. Serial mammography continues for the rest of the life of the patient. Serial mammography is utilized to assess the patient for change or stability. Stability is preferable, change is indicative of an adverse process. A radiologist will examine the studies; if there are prior studies the radiologist compares the previous studies with the current studies and render an opinion as to the appearance of the tissues on the mammograms in question. The radiologist examines the studies on special view boxes that are constructed to optimize in the visualization of the mammogram. The radiologist during the examination of the studies, attempts to screen background and ambient light from distracting the reading of the mammogram. A density is a structure visible in only one view or dimension. A nodule is having a three dimensional characteristic visible in multiple orthogonal projections. The fundamental nature of a nodule can not be assessed through mammographic characteristics. A radiologist describes a nodule by its borders, whether they are smooth, well circumscribed or speculated, and whether or not there are calcifications or distortion of adjacent tissues. The fundamental nature of a nodule includes the composition of the structure. A sonogram is a simple mechanism, which can be used to identify the cystic or solid nature of a nodule. A cystic nodule is fluid filled and generally relates to a benign process. However, when a nodule is characterized as solid this indicates that the nodule is filled with cells that are suspicious for malignancy. A radiologist when describing the position of a nodule subdivides the breast in quadrants such as upper, outer, lower and inner and describes the positions as they correlate to a clock face, if someone is looking straight on at the breast tissue. The nipple is considered the center of the clock. The radiologist generates a report concerning the interpretation of the studies. This includes a description of the tissue, assessment of its findings and a recommendation for follow-up. The standard of care for a newly identified nodule is to assess the mammographic characteristics, its composition, its relative density on film, its margination, the presence or absence of calcifications, and the involvement or apparent involvement of adjacent tissues. Prior to making a determination that a lesion is benign, observing simple clear, well-circumscribed mammographic borders is not sufficient to make that level of determination. On or about May 25, 1995, Patient M. L., a 50-year-old female with a history of a prior left mastectomy, presented to Florida Hospital-Kissimmee for the performance of a unilateral mammogram. Patient M. L. had a series of prior mammograms at the Orlando Regional Medical Center on February 11, 1989, November 14, 1991, July 24, 1992, April 12, 1993, and April 11, 1994. She also presented on May 8, 1996 and June 23, 1997. Also, on May 15, 1996, Patient M. L. underwent spot compression views. On each occasion, Patient M. L.'s films were interpreted by Respondent. Respondent first became involved in Patient M. L.'s care on May 25, 1995, at Florida Hospital. Respondent interpreted Patient M. L.'s May 25, 1995, mammogram to be within normal limits. The evidence in this matter, including that presented by Petitioner, establishes that Respondent's interpretation of that mammogram was accurate. On May 25, 1995, Respondent was unable to compare Patient M. L.'s mammogram to her previous mammogram studies, as those studies had been obtained at a different hospital. It is undisputed that, since the May 25, 1995, mammogram was normal, the standard of care did not require Respondent to obtain the prior studies for comparison. Respondent met the standard of care in his interpretation of the mammogram of May 25, 1995. The standard of care did not require Respondent to review Petitioner M. L.'s prior mammograms, which were located at a facility other than Florida Hospital. 17. On May 8, 1996, May 15, 1996, and June 23, 1997, Respondent did review the prior mammogram films which were available and his actions in that regard met the standard of care. On May 8, 1996, Patient M. L. returned to Florida Hospital to undergo a repeat mammogram. On that date, Respondent identified a new 5 x 6 mm, well circumscribed, benign-appearing, density in the right breast. Respondent's characterization of the mammographic finding is not in dispute. The margins of the density at issue on the May 8, 1996 mammogram were well circumscribed. Well circumscribed margins are consistent with a benign density. Petitioner's contention that the standard of care required Respondent to order a short-term follow-up mammogram on May 8, 1996, is without merit. Petitioner's own expert could only state that the standard of care "might" include a recommendation for short-term mammographic follow-up. Without question, testimony that the standard of care "might" include a recommendation for short-term mammographic follow-up does not meet the requirement that Petitioner establish its allegations by clear and convincing evidence. The complaint contends that, on May 8, 1996, Respondent deviated from the standard of care when he did not order a sonogram. Again, Petitioner has failed to sustain its burden of proving that such a study was required. First, the density which had been identified had only benign characteristics. Second, the density was only 5 x 6 mm in size, which would have made it difficult to locate and analyze with sonography. Petitioner's expert conceded that there are multiple benign solid entities which may occur in a woman's breast, such as lymph nodes, fibroadenomas and papillomas, which do not warrant the performance of a sonogram. He never clearly explained the rationale for stating that a sonogram should have been performed on this density, which demonstrated multiple benign characteristics, including lucency, a hallmark characteristic of benign lymph nodes. Dr. Estner admitted that, even if a sonogram had been completed, it would not have provided any information about whether the density in Patient M. L.'s breast was benign or malignant. Rather, it merely would have revealed whether the density was cystic or solid. The complaint further contends that, on May 8, 1996, Respondent deviated from the standard of care when he did not order a biopsy. Petitioner's own expert conceded that a biopsy was probably not warranted. On May 15, 1996, upon recommendation by Respondent, Patient M. L. returned to Florida Hospital to undergo spot compression views to further evaluate the density which had been identified on the May 8, 1996, mammogram. Respondent concluded that the compression views demonstrated a benign-appearing density in the right breast, which was most likely a lymph node. Again, Petitioner's own expert agreed that the compression views demonstrated a benign appearing density. Patient M. L.'s mammogram of June 23, 1997, did not reveal a radiographically significant change from the May 8, 1996 mammogram. Respondent did not conduct an inadequate radiologic assessment. Respondent sufficiently characterized the density identified in the June 23, 1997 mammogram in his radiology report. The standard of care did not require Respondent's report of the June 23, 1997 mammogram to contain a precise measurement of the density. The standard of care did not require Respondent to order additional studies as a result of the June 23, 1997, mammogram. In particular, the standard of care did not require Respondent to order a sonogram or tissue biopsy. Further, the standard of care did not require Respondent to order a short- term follow-up mammogram as a result of the June 23, 1997, mammogram. Petitioner has also failed to present competent evidence that Respondent's interpretation of the June 23, 1997, mammogram and his recommendations related thereto were in violation of the standard of care. Petitioner's expert could not recall whether he had ever reviewed both the MLO and CC views which comprised the June 23, 1997, mammographic study. Dr. Estner's testimony that sonography should have been performed after the June 23, 1997, mammogram was in direct contradiction to his other testimony which indicated that aggressive identification of the composition or histology of the cells of a lesion, through biopsy or sonography, would only be warranted if there was enlargement or some other change in the appearance of the lesion from one year to the next. Dr. Estner had conceded at one point in his testimony that the lesion may have been stable. Further, there was no indication by Dr. Estner that there was any other change in the appearance of the lesion between May 8, 1996 and June 23, 1997. Dr. Estner also rendered conflicting testimony about whether there was any change in the density between the May 8, 1996 and June 23, 1997 films. At one point he suggested that there had been only a "minor change," yet at another point, as noted above, he stated "that the lesion has at least been stable." Even Dr. Estner's suggestion that the density may have exhibited a "minor change" between May 8, 1996, and June 23, 1997, would not support a recommendation for sonography. "Minor change" would not support a recommendation for sonography because Dr. Estner acknowledged that is possible for a lesion to appear to have changed dimension from one year to the next on a mammogram but remain the same in its actual size. Such changes can be related to the distance of the lesion from the film in the mammographic apparatus from year to year, the orientation of the breast in the machine, and the degree of compression applied. Dr. Qazi and Dr. Foley both re-iterated that sonography was unwarranted after the June 23, 1997, mammogram because the density had not changed and it continued to exhibit benign characteristics. Petitioner's complaint suggests that Respondent should have ordered short-term mammographic follow-up on June 23, 1997. Yet, Dr. Estner merely characterized short-term mammographic follow-up as "an option" and "possible." He did not indicate that such follow-up was mandated by the standard of care. Neither Dr. Qazi nor Dr. Foley believed that short term follow-up was necessary. Short-term follow-up was unnecessary not only because the density had benign characteristics, but also because it had remained unchanged over a period of one year since the previous mammogram. Respondent presented convincing evidence that the cancer which was diagnosed on May 19, 1998, was not the same density which Respondent had described in the May 8, 1996 and June 23, 1997, films. Dr. Estner, who, again, had failed to read both views which comprised the June 23, 1997, mammogram, conceded on direct examination that "it's conceivable that the lesion that we have identified at this time is, in fact, new, and maybe in a different part of the breast from the nodule we were following." The testimony of Petitioner's expert, Michael Estner, M.D., is not persuasive as it is imprecise and not explicit. Dr. Estner did not review the original mammograms which are at issue in this case. The copies of the mammogram films that he did review were degraded and incomplete. In addition, copies of mammogram films can cause certain areas to appear more enhanced and more abnormal than on the original films. Dr. Estner did not know whether the copies he had reviewed in this action had caused the alleged area of abnormality to appear more pronounced. As a result, Dr. Estner's opinions can not be considered precise or explicit and they clearly do not meet the standard set forth for clear and convincing evidence. The opinions expressed by Respondent and Respondent's expert, Michael Foley, M.D., are credible and persuasive. Respondent did not violate Florida Statute Section 458.331(1)(t). Specifically, Respondent's care of Patient M. L. did not constitute 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.
Recommendation Based on the foregoing, it is RECOMMENDED that the Board of Medicine issue a final order finding that Respondent did not violate Section 458.331(1)(t), Florida Statutes, and the Administrative Complaint be dismissed. DONE AND ENTERED this 31st day of January, 2002, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2002. COPIES FURNISHED: Ephraim D. Livingston, Esquire Agency for Health Care Administration Post Office Box 14229, Mail Stop 39A Tallahassee, Florida 32317-4229 Mary Gannon McMurry, Esquire Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A. 201 East Pine Street, 15th Floor Orlando, Florida 32802 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
