The Issue The issues in this case are whether Respondent violated Subsections 456.072(1)(k), 458.331(1)(g), 458.331(1)(m), and 458.331(1)(t), Florida Statutes (2005),1 and Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes (2004), and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency in Florida charged with regulating the practice of medicine pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes. At all times material to the Amended Administrative Complaint, Dr. Pendergraft has been a licensed physician in the State of Florida, having been issued license No. ME 59702. Dr. Pendergraft is board-certified in Obstetrics and Gynecology. He does not have hospital privileges in Florida. At all times material to the Amended Administrative Complaint, Dr. Pendergraft, alone or with one or more partners, owned and operated Orlando Women’s Center, Inc. (OWC), a clinic located in Orlando specializing in abortions. OWC is not a hospital. At all times relevant to the Amended Administrative Complaint, Dr. Pendergraft did not have a current, valid Drug Enforcement Administration (DEA) number. On June 3, 2005, R.W. presented to her primary care physician symptoms of weight gain, fatigue, and lack of a menstrual period for several months. R.W. was a marathon runner and had experienced a delay in her menstrual cycle before because of her strenuous training. She had been taking oral contraceptives. At that time, her primary care physician did not diagnose R.W. as being pregnant. A couple of weeks after her visit with her primary care physician, R.W. still had not regained her menstrual cycle and took a home pregnancy test. The results of the home pregnancy test were positive. R.W. contacted her primary care physician, who ordered laboratory tests for R.W. Laboratory tests were conducted on June 14, 2005, and June 21, 2005. Both tests confirmed the pregnancy. R.W. was referred to Bert Fish Medical Center for an ultrasound on June 21, 2005. The ultrasound showed that R.W. was pregnant. The physician who prepared the diagnostic imaging report based on the ultrasound stated in the report: There is a single intrauterine fetus with an estimated gestational age of 24.5 weeks. Positive fetal heartbeat is present at 142 beats per minute. However, there is severe oligohydiamnios with no positive fetal movement. Gestational age is usually calculated from the first day of the last menstrual period (LMP) of the pregnant woman. On average, the last menstrual cycle occurs two weeks prior to conception. Thus, the gestational age that is determined by the LMP is actually two weeks more than the date of conception.2 When the LMP is unknown, fetal measurements are used to calculate the gestational age. Oligohydramnios means a lack of amniotic fluid. Amniotic fluid is basically the fetus’ urine. A lack of amniotic fluid can be caused by the lack of kidneys or obstructed kidneys, rupture of the membranes, or a malfunction of the placenta. The lack of amniotic fluid makes it difficult to assess the fetal measurements using ultrasound. R.W. was referred to an obstetrician, Dr. P.C., who admitted R.W. to Halifax Medical Center for routine laboratory work and an obstetrical ultrasound. The ultrasound was performed on June 22, 2005, and showed that the fetus was in a breech presentation, there was markedly decreased amniotic fluid, the bowel was abnormal, and the ventral wall was suspicious. Based on the ultrasound, it appeared there was gastroschisis or omphalocele. Gastroschisis occurs when the abdominal wall of the fetus does not close properly and the intestines are outside the body. Omphalocele is a herniation of the intestines, and a sac-like structure covers the intestines outside the abdominal wall. The assigned gestational age estimated by the physician reviewing the ultrasound was 25 weeks and five days.3 R.W. was referred to a perinatologist in Jacksonville. Another ultrasound was performed on June 23, 2005. The assigned gestational age was 25 weeks and six days, which would mean that the age of the fetus was 23 weeks and six days from conception.4 The lack of amniotic fluid and the position of the fetus made it difficult to determine the actual gestational age of the fetus. The perinatologist reported the following to Dr. P.C.: At this time, an ultrasound examination was performed which showed a single living fetus in breech presentation. There is no amniotic fluid which precluded an adequate examination of fetal anatomy. The right kidney and bladder were visualized essentially excluding diagnosis of renal agenesis. A normal appearing 4 chamber structure was seen which visually appears to occupy more than 50% of the chest cavity. This is also very difficult to evaluate due to the position of the baby. There appears to be an anterior abdominal wall defect most likely a gastroschisis, however, again this is impossible to evaluate in great detail. Of importance and further complicating the problems in this case, is the biometry. Measurements of head circumference and cerebellum are consistent with 30 weeks, however, the femur length is consistent with 25 weeks. The fact that this patient has been amenorrheic since October when she could be up to 34 weeks gestation is significant. We don’t know the exact gestation but it is of concern that there is a dramatic difference between the extremities, abdomen, and head circumference as well as the cerebellum. This points to a growth retardation process. Doppler studies of the umbilical circulation were slightly elevated but if there had been placental disfunction I would have expected an absent diastolic component which was not the case. * * * [M]y biggest concern has to do with the anhydramnios and the fact that we don’t know for how long this process has been active. Pulmonary hypoplasia is a strong consideration given the size of the chest and the virtual absence of fluid. Nevertheless, not knowing for how long she has not had fluid is difficult to quote her a risk. The second area of concern is that of the appearance of a structural abnormality. Typically gastroschisis is not associated with a chromosomal anomaly, however, given the discrepancies in biometries and the absence of amniotic fluid, I wonder if this is not a gastroschisis or if it is, part of a more complex situation. The perinatologist conveyed his findings to Dr. P.C., who discussed the situation with R.W. R.W. decided to terminate the pregnancy. The office notes of Dr. P.C. stated, “It was felt by me and my partners that facilitating delivery of this non-viable child was appropriate.” Dr. P.C. called Dr. Pendergraft to discuss the case. Dr. Pendergraft agreed to help, and Dr. P.C. gathered R.W.’s medical records to send to Dr. Pendergraft. On July 7, 2005, R.W. presented to Dr. Pendergraft at OWC. R.W. filled out an information sheet and listed the first day of her last normal period as January 5, 2005.5 R.W. filled out the appropriate consent forms, which a counselor reviewed with her. R.W.’s vital signs were taken and laboratory tests were performed by staff at OWC. Dr. Pendergraft’s notes stated that the sonogram showed severe growth restriction of the fetus. He further indicated that there was a possibility of severe pulmonary hypoplasia and risk of life-threatening sudden health issues or probable fetal, prenatal demise. Dr. Pendergraft wrote in his notes that R.W.’s PMD OB/GYN physician concurred with the maternal health reasons for the termination of the pregnancy. On July 7, 2005,6 at approximately 4:27 p.m., Dr. Pendergraft administered Digoxin into the heart of the fetus to stop the fetal heart beat. Dr. Pendergraft and his medical assistant, S.M., monitored the fetal heart beat using a sonogram until the fetal heart stopped. The procedure was documented on a form used by the OWC entitled “Second Trimester Medical Procedure.” On the form, it is noted that the patient was evaluated on July 7, 2005, and found to be 27 to 28 weeks pregnant, which is 25 to 26 weeks from conception. According to T.S., a medical assistant employed by Dr. Pendergraft, the handwriting which indicates the estimated length of the pregnancy belongs to Dr. Perper, a colleague of Dr. Pendergraft. Both Dr. Perper and Dr. Pendergraft signed the form. After the Digoxin procedure was completed, R.W. was taken to a private room and given Cytotec to induce labor. S.M. continued to administer Cytotec and monitor R.W. until 8:30 p.m., when T.S. relieved S.M. At approximately 12:30 a.m., on July 8, 2005, R.W. developed a fever and the administration of Cytotec was discontinued. T.S. administered Ibuprofen to R.W. to lower the fever. At 1:30 a.m., T.S. noted that R.W. was having some cramping. T.S. wrote the following in the progress notes: “I have a standing order from Dr. Pendergraft for 2 cc Demerol [with] 1 cc Phenergran.” This order was to alleviate the pain from the cramping. At the final hearing, T.S. stated that the note was not totally accurate, because the standing order was from Dr. Perper and not Dr. Pendergraft because Dr. Pendergraft did not have DEA authorization. She attributes the error in her notes to her 20-year working relationship with Dr. Pendergraft and her automatically thinking of Dr. Pendergraft in terms of standing orders. The standing order itself was not submitted into evidence. The evidence is not clear and convincing that Dr. Pendergraft gave the standing order for the Demerol and Phenergran. At 4:30 a.m., the cramping had increased. T.S. gave R.W. an injection of 2 cc of Demerol with 1 cc of Phenergran. At 6:30 a.m., R.W. delivered the fetus and placenta at the same time inside an empty water sack. The products of conception, which included the fetus, membranes, and placenta weighed 800 grams. The weight of the products of conception was recorded on a form used by the OWC, entitled “Clinic Examination of Products of Conception.” The form listed the preoperative estimate of gestational age to be 28 weeks, which would be 26 weeks from conception. Dr. Pendergraft was one of the signatories on the form. Dr. Pendergraft charged R.W. $12,000 for the procedure. Although, both Dr. Pendergraft and his associate Dr. Perper, felt that, preoperatively, the gestational age of the fetus was between 27 and 28 weeks, Dr. Pendergraft did not transfer R.W. to a hospital. Jorge Gomez, M.D., testified as an expert witness on behalf of the Department. Dr. Gomez is board-certified in obstetrics and gynecology and in maternal-fetal medicine. Dr. Gomez opined that on July 7, 2005, the age of the fetus from conception was 27 weeks. His opinion was based on biparietal diameter (BPD), the head circumference, the size of the cerebellum, and the femur length. He discounted the abdominal circumference because the abdominal wall defect would result in a less reliable measurement of the age of the fetus. The abdominal wall defect would cause the measurement to be smaller than would be expected for the age of the fetus. Jay Neil Plotkin, M.D., testified as an expert witness for Dr. Pendergraft. Dr. Plotkin has been a licensed physician for 37 years and is board-certified in obstetrics and gynecology. Dr. Plotkin has not treated patients for four years and has not performed an abortion in six or seven years. It was Dr. Plotkin’s opinion that the abortion occurred during the second trimester rather than the third trimester. His opinion is based on the combined fetal and placental weight at time of delivery. He concluded that the gestational age at the time of delivery was 24 weeks, which would translate to 22 weeks of pregnancy from conception. He used a chart to determine the age based on the weight of the fetus, but he did not know if the chart was based on normal fetuses or included fetuses with abnormalities such as the one at issue. Dr. Pendergraft also called Steven Warsof, M.D., as an expert witness. Dr. Warsof is an obstetrician/gynecologist with a subspecialty in maternal-fetal medicine. He has spent most of his professional career pursuing academic issues in obstetrical ultrasonography. It was his opinion that R.W.’s pregnancy was in the second trimester. He also based his opinion on the weight of the products of conception after delivery. Based on the evidence presented, it is clear and convincing that R.W. was in her third trimester of pregnancy when she had the abortion. The only two doctors who placed the pregnancy in the second trimester based their opinions on the weight of the fetus and placenta at the time of delivery. Because of the complications of R.W.’s pregnancy, it is clear that the fetus had not developed normally and was underweight for its age. There had been a lack of amniotic fluid which is essential to development of the fetus. Based on his office records, it is also clear and convincing that Dr. Pendergraft was under the impression that R.W. was in her third trimester of pregnancy when he performed the abortion. The medical records of Dr. Pendergraft do not contain a written certification from two physicians that within a reasonable degree of medical probability the termination of R.W.’s pregnancy was necessary to save the life or preserve the health of R.W. The evidence established that Dr. Pendergraft wrote in his notes that there was a risk of life-threatening, sudden health issues. Assuming he was referring to the health issues of the pregnant woman, this note could be considered a certification that to a degree of medical probability that the abortion was necessary to preserve the health of R.W. However, there is no written certification from another physician that that was the case, and the note of Dr. Pendergraft that R.W.'s primary care physician concurred with the maternal health reasons for termination of the pregnancy is not a written certification from another physician. The medical records kept by Dr. Pendergraft do not contain a written certification that there is a medical necessity for emergency medical procedures to terminate the pregnancy and that no other physician is available for consultation. No evidence was presented concerning the allegations in Counts IV, V, and VI of the Amended Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Dr. Pendergraft guilty of violations of Subsection 456.072(1)(k), 458.331(1)(g), 458.331(1)(m), and 458.331(1)(t)1., Florida Statutes; dismissing Counts IV, V, and VI of the Amended Administrative Complaint; suspending his license for one year followed by three years of probation with indirect monitoring; imposing an administrative fine of $10,000.00; and denying his motion for attorney's fees pursuant to Subsection 120.595(1)(b), Florida Statutes. DONE AND ENTERED this 26th day of October, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 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 October, 2007.
The Issue The issues in this case are whether Respondent violated Section 458.331(1), Florida Statutes (1995) 1/ by failing to practice medicine according to the applicable standard of care, by performing unnecessary and improper breast examinations on eight patients, by failing to document the examinations in his medical records, and by documenting tests that were not performed, and, if so, what, if any, penalty should be imposed pursuant to Florida Administrative Rule 59R-8.001. 2/
Findings Of Fact 1. Petitioner is the state agency responsible for regulating the practice of medicine. Respondent is licensed to practice medicine pursuant to license number ME0062132. Education, Experience, And Reputation Respondent practiced neurology in Jacksonville and St. Augustine, Florida, until Petitioner issued an emergency suspension of his license in December, 1995. Respondent is not a board certified neurologist. Respondent was graduated from medical school in India, where he was born, and received some post-graduate medical training there. The post-graduate training included a six-month "house post" in obstetrics and gynecology ("OB/GYN"). A "house post" is the equivalent of a residency in the United States. In 1983, Respondent moved to the United States and passed all required examinations. From 1985 through 1987, he completed an 18-month residency in the Department of Neurology, University of Minnesota, Veteran's Administration hospital. In 1988, Respondent completed a rotating internship at the University of Minnesota and a three-year residency in neurology in 1991. In June, 1992, he completed a one-year fellowship in physio-neurology. Respondent moved to Florida and was employed at the Jacksonville Neurological Clinic. In 1994, Respondent established his own neurology practice in St. Augustine under the name of the St. Augustine Neurological Clinic (the "Clinic"). From 1985 through April 8, 1994, Respondent had an exemplary professional career, without incident, in multiple jurisdictions. He has a reputation in the professional community for competency and veracity. Medical Records Respondent examined and treated the eight patients involved in this proceeding in his Clinic. The eight patients are D.R., L.W., L.Y., L.B., C.L., D.S., L.T., and D.P. Respondent performed 16 breast examinations on these patients. Respondent performed one breast examination on D.R., L.W., L.Y., and C.L.. He performed two breast examinations on D.S. and L.T., five breast examinations on L.B., and three breast examinations on D.P. Respondent documented the breast examinations on D.S. in his medical records and one of the breast examinations on D.P. Respondent failed to document the other breast examinations in his medical records. Breast Examinations: Necessity and Propriety Petitioner charged Respondent with performing breast examinations that were unnecessary and inappropriate. The preliminary factual issue for each patient is whether a breast examination was medically necessary. The secondary issue is whether the breast examination actually given was performed in an appropriate manner and for appropriate purposes. The issue of whether Respondent documented medical tests that he did not actually perform is discussed in the context of each patient. Neurology involves the diagnosis and treatment of diseases of the brain, spinal cord, nerves, and muscles. Neurologists generally obtain patients by referral from other primary care physicians including family physicians and OB/GYNs. Neurologists can approach similar neurological problems differently, including different initial examinations for new patients. Some neurologists give a new patient a general physical examination as well as a neurological examination. General examinations may include a breast examination. A breast examination by a neurologist is medically necessary in some instances. A definite connection exists between breast cancer and some neurological problems. Breast cancer can metastasize into the brain and cause a brain tumor and headaches. Breast cancer can metastasize to the lung and cause other problems. There are a variety of symptoms patients may experience when breast cancer spreads to other parts of the body depending on whether the disease spreads to the brain, the spinal cord, the skull, or the blood stream. If a neurologist has training in other medical specialties, it is appropriate for the neurologist to use that training in diagnosing and treating neurological patients. Respondent has training in breast examinations from medical school, his "house post," and his rotating internship. Respondent has performed hundreds of breast examinations over the past 15 years. He routinely performs breast examinations on approximately one-third of his patients. A breast examination that is performed appropriately has no negative side effects. Some neurologists perform breast examinations and some do not. D.R. is a 49-year-old female. On June 7, 1995, Dr. Ernest Carames, D.R.'s primary care physician, hospitalized D.R. in Flagler Hospital for chest pains. Dr. Carames requested Respondent to evaluate D.R. for possible seizures and multiple sclerosis. Respondent performed a neurological examination of D.R. in the hospital on June 7, 1997. As part of the examination, Respondent ordered a magnetic resonance imaging scan (an "MRI") which was performed on June 8, 1995. Respondent scheduled D.R. for follow up in his office on June 21, 1995. At the follow up on June 21, 1995, Respondent took D.R. to his office and reviewed her condition with her. After a few minutes in the office, Respondent took D.R. to an examining room and performed a breast examination. The breast examination was not medically necessary. Dr. Carames was D.R.'s primary care physician and was treating D.R. for chest pain. Objective findings available to Respondent prior to the breast examination were insufficient to establish a medical necessity for, or to otherwise justify, a breast examination by Respondent. Respondent had previously ruled out multiple sclerosis and seizures. Respondent's medical records were insufficient to establish a medical necessity for, or to otherwise justify, a breast examination by Respondent. Respondent performed the breast examination inappropriately. Respondent instructed D.R. to sit on the examination table without an examination gown. Respondent and D.R. were alone in the examination room. Respondent lifted D.R.'s brassier ("bra") over her breasts. Respondent cupped D.R.'s left breast, then her right breast, and back to the left breast. He alternated between D.R.'s two breasts for several minutes. Respondent put his hands around each breast. He twisted and pinched the nipple of each breast. D.R. informed Respondent that she had a rash under her breasts and that his examination was painful. She explained that the skin affected by the rash would split and bleed if Respondent lifted her breasts too much. Respondent ignored D.R.'s complaints and explanation. When D.R.'s skin bled, Respondent terminated the examination. Respondent met D.R. in his office. He informed her that the MRI results were negative and that he had ruled out multiple sclerosis and seizures. Respondent never informed D.R. of the medical necessity for the breast examination. D.R. had never received a breast examination that was performed in the manner performed by Respondent. Respondent documented tests for D.R. in his medical records that he did not perform. Respondent's medical records for D.R. indicate that Respondent performed: a general physical examination, including a blood pressure and pulse; a head and neck examination; a chest examination; a motor examination; a test of deep tendon reflexes; a sensory examination; and an examination of the patient's station, gait, and coordination. Except for the last examination listed in the preceding paragraph, Respondent did not perform the examinations documented in his medical records. The evidence was less than clear and convincing that Respondent did not examine D.R.'s station, gait, and coordination by observing her in the examination room and from his office to the examination room. L.W. is a 37-year-old female. On June 27, 1995, L.W. presented to Respondent with complaints of arm pain. Respondent took L.W. to his office and reviewed her condition. After a few minutes in the office, Respondent took L.W. to an examining room and performed a breast examination. The breast examination was not medically necessary. L.W. presented with arm pain seeking a neurological examination. Neither the objective findings available to Respondent prior to the breast examination nor Respondent's medical records were sufficient to establish a medical necessity for, or to otherwise justify, a breast examination by Respondent. Respondent did not inform L.W. of a medical necessity for a breast examination. Respondent performed the breast examination inappropriately. Respondent instructed L.W. to remove her top and lie down on the examination table without an examination gown. Respondent and L.W. were alone in the examination room. Respondent placed the palms of his hands on L.W.'s breasts and rubbed her breasts in a circular motion. He then unsnapped L.W.'s shorts and unzipped them. He asked L.W. if she was married. Respondent put his hands just above L.W.'s pubic region. He pressed and rubbed the area. L.W. asked Respondent why he was examining her pubic area for arm pain. Respondent did not provide an explanation. Respondent terminated the examination. Respondent never examined L.W.'s arm and performed no other examinations. Respondent documented tests for L.W. in his medical records that he did not perform. Respondent's medical records for L.W. indicate that Respondent performed a comprehensive medical examination. A comprehensive medical examination requires: an extensive history of the presenting complaints; a review of the patient's medical, family, and social history; a review of her current medications and allergies; a review of at least 10 endocrine systems; and complete neurological and physical examination. Respondent did not perform a comprehensive medical examination of L.W. L.B. is a 37-year-old female. On January 20, February 22, March 22, March 30, and April 6, 1995, L.B. presented to Respondent with complaints of trauma-induced headaches from an automobile accident. Respondent performed five breast examinations on L.B. in approximately 76 days. None of the breast examinations were medically necessary. L.B. presented with headaches caused by trauma. Neither the objective findings available to Respondent prior to each of the breast examinations nor Respondent's medical records were sufficient to establish a medical necessity for, or to otherwise justify, a breast examination by Respondent. Respondent did not inform L.B. of a medical necessity for any of the breast examinations. Respondent performed each of the breast examinations inappropriately. On each occasion Respondent and L.B. were alone in the examination room and L.B. had no examination gown. On January 20, 1995, Respondent reviewed L.B.'s condition with her in his office. He then took L.B. to an examining room and performed the first breast examination. Respondent instructed L.B. to remove her clothes from the waist up and to sit on the examination table. Respondent and L.B. were alone in the examination room. Respondent placed one hand on each of L.B.'s breasts. He squeezed each breast and nipple. He then cupped each breast and used both of his hands to rub each breast individually. Respondent did not provide an explanation of the medical necessity for the breast examination. He instructed L.B. to return to his office in one month. On February 22, 1995, L.B. returned to the Clinic in accordance with Respondent's medical advice. Respondent ushered L.B. directly to the examination room, locked the door, and performed the second breast examination. Respondent instructed L.B. to remove her clothes from the waist up and to sit on the examination table. He placed both hands on one of L.B.'s breasts and squeezed and massaged it. He squeezed and pulled the nipple. He then repeated the process on the other breast. He instructed L.B. to return to his office on March 22, 1995. On March 22, 30, and April 6, 1995, Respondent took L.B. directly to the examination room, locked the door, and performed the remaining three breast examinations. He performed each of the last three breast examinations using the same techniques as he used on January 20 and February 22, 1995. Respondent documented tests for L.B. in his medical records that he did not perform. Respondent's medical records for L.B. indicate that Respondent performed a Babinski test and an examination of: the head and neck, including the ear, nose, and throat; the abdomen; the spinal area; and all eleven cranial nerves. Respondent did not perform these tests. C.L. is a 31-year-old female. On December 23, 1994, C.L. presented to Respondent with numbness in her arm. Respondent took C.L. to his office and reviewed her condition. After a few minutes in the office, Respondent took C.L. to an examining room and performed a breast examination. The breast examination was not medically necessary. C.L. presented with numbness in her arm and sought a neurological examination for the condition. On December 22, 1994, C.L.'s gynecologist had given C.L. a complete physical that included a breast examination. Neither the objective findings available to Respondent prior to the breast examination nor Respondent's medical records were sufficient to establish a medical necessity for, or to otherwise justify, a breast examination. Respondent did not inform C.L. of the medical necessity for a breast examination. Respondent performed the breast examination inappropriately. Respondent instructed C.L. to remove all of her clothes from the waist up and to lie down on the examination table without an examination gown. Respondent and C.L. were alone in the examination room. C.L. objected to the examination and Respondent's instructions. C.L. explained that her gynecologist had performed a breast examination the previous day. Respondent insisted and C.L. reluctantly complied. Respondent cupped each breast with the palm of his hand. He pinched each nipple and rubbed his hands from her neck to the edge of her nipples. Respondent instructed C.L. to return to the Clinic for another office visit. C.L. never returned. Respondent documented tests for C.L. in his medical records that he did not perform. Respondent's medical records for C.L. indicate that Respondent examined C.L.'s eye with a swab or other instrument, examined her gait, and performed a Babinski test. Respondent did not perform these tests. L.Y. is a 37-year-old female. On May 25, 1995, L.Y. presented to Respondent with complaints of migraine headaches. Respondent took L.Y. to his office and reviewed her condition. After a few minutes in the office, Respondent took L.Y. to an examining room and performed a breast examination. The breast examination was not medically necessary. L.Y. presented with migraine headaches and sought a neurological examination for the condition. Neither the objective findings available to Respondent prior to the breast examination nor Respondent's medical records were sufficient to establish a medical necessity, or to otherwise justify, a breast examination. Respondent did not inform L.Y. of the medical necessity for a breast examination. Respondent performed the breast examination inappropriately. Respondent instructed L.Y. to remove all of her clothes from the waist up. L.Y. did so and put on an examination gown that she had requested. Respondent, L.Y., and L.Y.'s five year-old son were the only individuals in the examination room. Respondent rubbed each breast with the palm of his hand. The palm of each hand made contact with each nipple. The breast examination was unlike any breast examination L.Y. had previously received. D.S. is a 27-year-old female. On November 28, 1994, D.S. presented to Respondent with complaints of migraine headaches. D.S. was referred to Respondent by her gynecologist who had recently performed a yearly physical that included a breast examination. D.S. had a calcified cyst in her right breast. The cyst had been present for five years and was monitored routinely by her gynecologist. D.S. was scheduled for a routine mammogram shortly after her neurological examination. Respondent performed two breast examinations on D.S. on the same day. He performed one breast examination in the examination room and the second in his office. Neither of the breast examinations were medically necessary. D.S. had recently received a breast examination during from her gynecologist during her annual physical and was scheduled for a mammogram. She presented to Respondent with migraine headaches and sought a neurological examination. Neither the objective findings available to Respondent before the breast examinations nor Respondent's medical records were sufficient to establish a medical necessity for, or to otherwise justify, a breast examination by Respondent. Respondent did not inform D.S. of the medical necessity for a breast examination. Respondent performed both breast examinations inappropriately. After D.S. completed some forms in the reception area, Respondent took D.S. directly to an examination room and performed the first breast examination. Respondent instructed D.S. to remove her clothes from the waist up. He gave her an examination gown and left the room. D.S. removed all of her clothes from the waist up except her bra. She put on the examination gown. Respondent returned to the examination room and performed the breast examination. Respondent and D.S. were alone in the examination room. Respondent lifted D.S.'s bra. He felt her left breast and then her right breast. He then felt both breasts simultaneously. He then felt each breast separately again. During the examination, D.S. objected to the examination. She explained that her gynecologist had just performed a breast examination and that she was scheduled for a mammogram to monitor the cyst in her right breast. Respondent continued the examination. He continued to touch both breasts simultaneously with both hands. He repeatedly twisted both nipples simultaneously with both hands. Respondent completed the examination. He instructed D.S. to get dressed and to meet him in his office. In his office, Respondent discussed more tests and asked D.S. more questions about her condition. Respondent then rose from his chair, locked the door to his office, and told D.S. that he wanted to check the cyst in her right breast. Respondent instructed D.S. to unbutton her blouse. Respondent pulled up D.S.'s bra and asked her to stand and lean forward. Respondent squeezed and twisted both of D.S.'s nipples. He touched both breasts simultaneously. Respondent did not touch the area of the cyst. Respondent instructed D.S. to return to his office for follow up. D.S. never returned. Respondent documented tests for D.S. in his medical records that he did not perform. Respondent's medical records for D.S. indicate that Respondent performed a head and neck examination, an examination of 11 pairs of cranial nerves, a motor examination, and a sensory examination. Respondent did not perform these tests. L.T. is a 29-year-old female. On July 10, 1995, L.T. presented to Respondent with complaints of headaches and seizures. L.T. was referred to Respondent by her kidney specialist. L.T. also had a gynecologist who had performed a complete physical within one year of L.T.'s visit to Respondent. The complete physical included a breast examination. Respondent performed a breast examination on L.T. on July 10, 1995, and August 4, 1995. Neither of the breast examinations were medically necessary. L.T. recently had a breast examination from her gynecologist during her annual physical. She presented to Respondent with headaches and seizures. Neither the objective findings available to Respondent prior to the breast examinations nor Respondent's medical records were sufficient to establish a medical necessity for, or to otherwise justify, a breast examination by Respondent. Respondent did not inform L.T. of the medical necessity for a breast examination. Respondent performed both breast examinations inappropriately. On both occasions, Respondent and L.T. were alone in the examination room, and L.T. had no examination gown. On July 10, 1995, L.T. completed some forms in the reception area and Respondent took L.T. to his office where he asked her some routine questions. Respondent then took L.T. to an examination room and performed the first breast examination. Respondent instructed L.T. to sit on the examination table. He took her blood pressure and had her to lie on her back. Respondent listened to L.T.'s heart for a moment. He then pulled her shirt and bra over her breasts and squeezed both of her breasts simultaneously. Respondent told L.T. to place her hands behind her head. Respondent squeezed one breast and then the other. He then repeated the same process several times alternating between breasts. He then twisted and rolled L.T.'s nipples simultaneously with his fingers while the palms of hands grasped her breasts. Respondent moved his hands toward L.T.'s abdomen and applied pressure. He then moved his hands down to the hairline of the pubic region to examine a scar. Respondent moved his hands back up to L.T.'s breasts. He squeezed both breasts simultaneously while rolling both nipples with his fingers. During the examination, Respondent asked L.T. about her nationality. L.T. questioned the question. Respondent explained that L.T. had no tan lines. Respondent completed the examination. He instructed L.T. to get dressed and accompany him to his office. In his office, Respondent prescribed an MRI and electroencephalogram ("EEG"). The MRI was performed on July 18, 1995, and produced no positive findings. The EEG was performed in the Clinic by Respondent's nurse. The nurse scheduled L.T. to return to Respondent's office on August 4, 1995, to obtain the results of the EEG. The EEG produced no positive findings. On August 4, 1995, Respondent took L.T. to his office. Respondent stated that he found something abnormal but did not disclose the nature of the abnormality. He took L.T. to the examination room. In the examination room, Respondent had L.T. sit on the examination table and then lie down on the table with her hands behind her head. He pulled up her shirt and bra over her breasts. He then listened to her heart while he held her left breast in his right hand. He then touched both breasts with both hands while twisting her nipples with his fingers. Respondent instructed L.T. to return to his office for another EEG. L.T. returned on the next day. However, she did not stay for the test and never saw Respondent again. Respondent documented tests for L.T. in his medical records that he did not perform. The medical records for L.T. indicate that Respondent performed a cranial nerve test and deep tendon reflex test. Respondent did not perform either test. D.P. is a 39 year-old female. On April 8, 1994, D.P. presented to Respondent with complaints of migraine headaches. Respondent performed a breast examination on D.P. on July 10, 1995, in November 1994, and in the Spring of 1995. None of the breast examinations were medically necessary. D.P. presented to Respondent with migraine headaches and sought a neurological examination. Neither the objective findings available to Respondent prior to each breast examination nor Respondent's medical records were sufficient to establish a medical necessity for, or to otherwise justify, a breast examination by Respondent. Respondent did not inform D.P. of the medical necessity for a breast examination. Respondent performed all three breast examinations inappropriately. On each occasion, Respondent and D.P. were alone in the examination room, and D.P. had no examination gown. On April 8, 1994, D.P. completed some forms in the reception area, and Respondent took D.P. to his office where he asked her some routine questions. Respondent then took D.P. to an examination room and performed the first breast examination. Respondent instructed D.P. to remove her clothes from the waist up and to lie down on the examination table. He massaged both of her breasts with his hands. He then had her sit up on the table and again massaged both breasts. He lifted both breasts with his hands and continued to massage both breasts while he pinched her nipples with his fingers. During the examination, Respondent stated repeatedly that he had to be thorough. The repeated statements were disconcerting to D.P. The breast examination was like no other breast examination D.P. had received. It was lengthy and irregular. Respondent completed the examination. He instructed D.P. to get dressed and to meet him in his office. In his office, Respondent recommended that D.P. return on a monthly basis. Respondent advised that he could not refill her prescription unless he examined her monthly. D.P. returned to the Clinic over the next several months without incident. In November 1994, Respondent took D.P. to the examination room. He instructed D.P. to remove her clothes from the waist up. Respondent grasped both breasts and massaged them in a clinching manner. He pinched and twisted both nipples. In the Spring of 1995, Respondent took D.P. to an examination room and performed another examination that Respondent described to D.P as a breast examination. Respondent put both of his hands down D.P.'s bra and placed a stethoscope on one of her nipples. On her last visit, Respondent fingered D.P.'s bra strap. He told her it was very nice. The examination terminated shortly thereafter. Respondent performed all 16 breast examinations on the eight complaining witnesses in this proceeding for purposes of engaging them in sexual activity within the meaning of Section 458.329. In each case, Respondent exercised his influence within the patient-physician relationship for purposes prohibited by Section 458.329.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order and therein: find Respondent guilty of violating Sections 458.311(1)(j), (k), (m), (t), and (x); impose an administrative fine of $105,000; suspend Respondent's license for three years, including the period of suspension prior to a final order in this case; place Respondent on probation for three years; require Respondent to complete a reasonable amount of continuing professional education; and restrict Respondent's practice in accordance with the provisions of this Recommended Order. DONE AND ENTERED this 6th day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1997.
The Issue The issues are whether Respondent is guilty of violations of Section 458.331(1)(k), (m), and (t) in the practice of medicine and, if so, what penalty the Board of Medicine should impose.
Findings Of Fact Respondent is a licensed physician, holding license number ME 0033129. His license was originally issued on August 2, 1978, and remains current. There is no prior discipline against Respondent. Respondent has been certified for over 15 years by the American Board of Obstetrics and Gynecology. His practice has been devoted to obstetrics and gynecology. In 1990, Respondent was a member of a large group practicing obstetrics and gynecology in Cape Coral. Respondent was performing about 100 breast examinations a week. On the evening of April 10, 1990, D.W., who was 30 years old at the time, discovered a mass that felt like a marble in her right breast during a breast self-examination. She was upset and cried most of the night, fearful that she had breast cancer. Early the next morning, she made an appointment with Respondent's group for a breast examination later that day. A regular patient of another member of Respondent's group, who was unavailable on April 11, D. W. had last been seen by a member of Respondent's group on February 6, 1990, when her regular physician gave her an annual examination. Her breast examination at the time was normal. During the visit, the physician or nurse reviewed breast self-examination techniques with her. The physician started D. W. on birth control pills and directed her to return for a follow-up visit in two months. The April 11 office visit was devoted exclusively to addressing D. W.'s complaint of a lump in her breast. Respondent examined D. W.'s breasts with D. W. lying down and then sitting up. He felt nothing. While sitting up, D.W. guided Respondent's hand to the mass in the right breast. Still feeling nothing, Respondent remarked that the breast was somewhat fibrous. Respondent explained to D. W. that fibrocystic disease is something that women sometimes get in their breasts and it is nothing to worry about. In fact, at least 80 percent of all women in their 30s undergo fibrocystic changes in the breast. Respondent did not reach a specific diagnosis as a result of the April 11 office visit. The handwritten entries in Respondent's medical records--the complaint and blood pressure appearing to have been written by a nurse--read in their entirety: 4-11-90 Pt. c/o lump in R breast. BP--100/60 no mass found somewhat fibrous [Respondent's initials] Respondent did not advise D. W. to return to the office for a follow-up visit at a prescribed interval or if she detected the same mass or any changes in the mass. D. W. next visited Respondent's group on April 11, 1991, for her annual visit. She was seen by another physician in the group. D. W. told the physician of the lump in her breast and said that it was getting larger. The physician conducted a breast examination and felt a mass about two centimeters in diameter. Concerned about the mass, the physician scheduled an aspiration for diagnostic purposes. The results of the procedure disclosed severely atypical cells that were suspicious for carcinoma. The physician referred her to a surgeon, who first saw D.W. on May 2, 1991. The surgeon performed a breast biopsy on May 9. The biopsy revealed an infiltrating ductal carcinoma of the breast. Based on the biopsy findings, the surgeon conducted on May 17 a right modified radical mastectomy. The excised tumor measured 2.1 centimeters along its longest diameter. D. W. underwent chemotherapy and has had no recurrence of the cancer in the five years since the surgery. There are two sets of allegations concerning D.W.'s medical records. The first set of allegations is that Respondent fraudulently altered D. W.'s medical records. Someone in Respondent's office later typed the following addition to the records of D. W. immediately beneath the handwritten entry quoted above: D[.] came to the office today having felt a lump in her right breast. I could not feel anything, although her breast was somewhat fibrous. I told her to continue to check her breast and come back if she felt it again. [Respondent's initials/typist's initials-- {both typed}] Petitioner failed to prove that Respondent dictated or typed the note in the preceding paragraph or that he authorized the addition of this note to D.W.'s medical records. The intent in adding the note was fraudulent as to the third sentence, which is the only sentence in the note that is untrue. But Petitioner failed to prove that Respondent was in any way involved in the fraud. The second set of allegations concerning the medical records involves the adequacy of the records. Specifically, Petitioner alleges that Respondent failed to keep medical records justifying the course of treatment and violated the applicable standard of care by failing to keep adequate medical records. These allegations are best considered together with the remaining allegation, which is that Respondent violated the applicable standard of care by failing to recommend follow-up examinations and treatments for D. W.'s complaint of a lump in her breast. A violation of the applicable standard of care is 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. The standard of care in this case pertains to the practice in early 1990. Petitioner nowhere alleges that Respondent violated the applicable standard of care by failing to detect the mass of which D.W. complained. Petitioner's expert witness, Dr. Harvey Gardy, conceded that such a failure would not necessarily violate the standard of care. Nor is it clear that the mass of which D.W. complained in April 1990 developed into the tumor removed from her breast a year later. The mass of which D. W. complained in April 1990 was in the three o'clock position, and the excised tumor was in the 12 o'clock position. Breast tumors do not change location, except to the extent that they grow, although patients conducting self- examinations may have difficulty locating the tumor with precision. Also, the excised tumor could have grown from an impalpable size in April 1990 to its size at the time of the mastectomy a year later. The second set of medical records allegations and the lone remaining standard of care allegation focus not on Respondent's alleged failure to detect and diagnose the mass of which D. W. complained, but on Respondent's alleged failure to respond adequately to D. W.'s complaint, even after he could not independently verify the mass. The applicable standard of care did not require Respondent to order further testing at the time to rule out a cancerous growth when he could not feel the mass. D. W. was not in a high-risk category for breast cancer based on her young age, three past pregnancies, and relevant family history. She displayed no physical signs of breast cancer. The physician conducting a breast examination is looking for a dominant or distinct mass--an isolated lump distinct from surrounding breast tissue. Respondent felt only fibrous changes. The applicable standard of care did not require that a physician order further diagnostic testing each time the physician detected a fibrous mass in a breast. Fibrous changes are not indicative of breast cancer. Petitioner has failed to prove that the applicable standard of care was any different when the patient claimed to have felt a distinct mass that the physician is unable to verify. It is more practical to direct a patient to return for a follow-up examination than to order potentially expensive tests. However, Petitioner failed to prove that the applicable standard of care required that a physician, failing to detect a mass in a patient not in a high-risk category for breast cancer, direct her to return to the office at a specified interval, such as two or three months later. Even less onerous than diagnostic testing or return office visits is the physician's direction that the patient return to the office if she feels the mass again or any changes in the mass. However, Petitioner failed to prove that the applicable standard of care required even this sensible precautionary direction from a physician. Testifying unpersuasively that the standard of care required the setting of a follow-up appointment, Dr. Gardy failed to testify at all whether the standard of care required Respondent to tell D. W. to return if she detected the mass again in a self-examination. One of Respondent's expert witnesses, Dr. Pierre Bouis, testified clearly on direct that the applicable standard of care did not require Respondent to direct D. W. to return if she felt the mass again (Tr. p. 125). On cross-examination, Dr. Bouis returned to the same issue and answered affirmatively the following, poorly worded question: Now, isn't it true that you also believe that it's an appropriate standard of care to tell a patient who presents under the same set of fact that she should keep checking herself and return if she feels it again or continue to feel it? Although there are many levels of care, there is a single applicable standard of care, which, if violated, justifies the imposition of discipline. By using "an," Petitioner's counsel suggested multiple standards of care and left open the possibility that the standard to which Dr. Bouis referred in his answer was aspirational, rather than mandatory. Respondent's other expert witness, Dr. J. Kell Williams, testified clearly that Respondent's failure to direct D. W. to return if she felt the lump again did not violate the applicable standard of care (Tr. pp. 43 and 52). Dr. Williams conceded that the better practice would have been to direct the patient to return (TR. pp. 43, 46, and 47), but he did not equate this practice with the applicable standard of care. In the absence of evidence establishing this sensible precaution as the applicable standard of care, Petitioner has failed to prove by clear and convincing evidence that the applicable standard of care required Respondent to advise D. W. that she should return to the office if she felt the mass again or any changes in the mass. The medical records are adequate for the limited purpose of the April 11 visit. They describe the findings and adequately outline Respondent's examination of D. W. They justify the course of treatment--which was effectively no treatment--for the reasons set forth in the preceding paragraphs. For the reasons set forth above, Petitioner has failed to prove by clear and convincing evidence the material allegations of the Administrative Complaint.
Recommendation It is RECOMMENDED that the Board of Medicine enter a final order dismissing the Administrative Complaint against Respondent. ENTERED on May 31, 1996, in Tallahassee, Florida. ROBERT E. MEALE, 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 on May 31, 1996. APPENDIX Rulings on Petitioner's Proposed Findings 1-3: adopted or adopted in substance, except she told him about the lump. Respondent never saw a lump. 4: adopted or adopted in substance, except that Respondent did not feel the marble-like mass that D. W. felt. Respondent felt only fibrocystic changes in the breast. 5-9 (second sentence): adopted or adopted in substance. 9 (remainder): rejected as irrelevant and recitation of testimony. 10-11 (second sentence): adopted or adopted in substance. 11 (remainder): rejected as irrelevant and recitation of testimony. 12-13 (first sentence): adopted or adopted in substance. 13 (remainder)-15: rejected as subordinate. 16 (first sentence): adopted or adopted in substance. 16 (second sentence)-17: rejected as recitation of evidence. 18: adopted or adopted in substance, as distinguished from the 2 cm tumor within the larger excised mass. 19: rejected as subordinate. 20: rejected as unsupported by the appropriate weight of the evidence. 21: rejected as irrelevant with respect to applicable standard of care. 22: rejected as unsupported by the appropriate weight of the evidence. The questions posed Dr. Bouis were ambiguous as to whether he was describing the better practice or the applicable standard of care. 23-24: rejected as irrelevant with respect to applicable standard of care. 25: rejected as subordinate and irrelevant. 26: rejected as subordinate. 27: rejected as unsupported by the appropriate weight of the evidence. 28: rejected as subordinate. 29-32: adopted or adopted in substance. 33: rejected as subordinate. 34: rejected as unsupported by the appropriate weight of the evidence. 35: rejected as subordinate. 36-38: rejected as subordinate and recitation of testimony. 39: rejected as unsupported by the appropriate weight of the evidence. 40: rejected as recitation of testimony. 41-43: rejected as unsupported by the appropriate weight of the evidence. 44-45: rejected as irrelevant. 46: adopted or adopted in substance. COPIES FURNISHED: Dr. Marm Harris, Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-54034 Steven Rothenburg, Senior Attorney Agency for Health Care Administration 9325 Bay Plaza Boulevard, Suite 210 Tampa, Florida 33619 Bruce D. Lamb Shear Newman 201 East Kennedy Boulevard, Suite 1000 Tampa, Florida 33602
Findings Of Fact At all times relevant hereto, Respondent was licensed as a medical doctor by the Florida Board of Medicine. He holds License No. ME 0019700. Respondent received his medical degree overseas and did his residence in obstetrics and gynecology at Bayfront Medical Center in St. Petersburg, Florida. He is neither board certified nor board eligible. For the past eight plus years Respondent's practice has been limited to terminating pregnancies at All Women's Health Clinic at Tampa, Florida. He has performed in excess of 15,000 abortions. One reason given by Respondent for so limiting his practice is the cost of medical malpractice insurance. Since he has no private practice, Respondent gave up admitting privileges at hospitals in the area. Without malpractice insurance, he would not be given staff privileges. On August 23, 1986, A. L., a pregnant 16 year old, entered All Women's Health Center, Tampa, to have her pregnancy terminated. A. L. had noted on her history statement that her last menstrual period started some eight weeks ago. Respondent first saw A. L. when he entered the procedures room at All Women's Health Center and commenced his examination prior to instituting abortion procedures. With respect to the examination the testimony varied widely. Diane Roberts, LPN, who was performing the duties of physician's assistant during the procedure, initially told the investigators that the examination lasted only a couple of seconds and consisted of a vaginal examination with two fingers of the right hand in the vagina while the abdomen was palpated with the left hand. At the hearing, Roberts testified that she wasn't paying much attention to the patient during the examination, didn't recall telling investigator the examination only took a couple of seconds, and recalled Respondent telling A. L. several times to relax. Respondent testified he performed a normal vaginal examination. The examination was longer than usual because A. L. wasn't relaxed and tensed her stomach muscles which made the uterus more difficult to palpate; and that following his examination he determined the gestational age of the fetus to be 12 weeks. Respondent testified he also checked the patient's heart and lungs before commencing the pelvic examination. A. L. testified that Respondent palpated her abdomen with two hands, but did not check heart and lungs or do a pelvic examination. A. L. had an earlier pregnancy terminated the previous year when the doctor did a pelvic examination with two fingers in the vagina while the abdomen was palpated with his other hand. The patient was ultimately determined to be 28 to 30 weeks pregnant. Largely because of the large error in gestational age, it is concluded that Respondent performed only a perfunctory examination on A. L. Had he conducted the proper examination, it is inconceivable that he, an experienced gynecologist, could underestimate the gestational age of the fetus by some four months. The magnitude of this error is illustrated by Respondent's testimony that a 12 week fetus is approximately 3 inches long and weighs 30 grams, while a 28 week fetus is approximately 14 inches long and weighs 1100 grams. Respondent started the procedure thinking he was aborting a 12 week fetus with the patient on the table and feet in the stirrups. After the instruments were inserted and the procedure started, Respondent concluded the fetus was 16 weeks, obtained a larger curette, then determined the fetus was more likely 20 weeks, again changed curette, and after removing fluid and part of an arm Respondent concluded that the gestational age of the fetus was some 28 weeks and required hospitalization to complete the procedure. Mistakes in determining gestational age can be made by a prudent physician if: (1) the patient is obese; (2) if the uterus is very soft and the extremities difficult to locate; (3) if the baby has a low fluid volume; (4) if the patient is very tense; or, (5) if the head of the fetus is felt and not the uterus. Here A. L. was more thin than obese which should have greatly facilitated palpation of the abdomen to determine the size of the uterus. Accepting the testimony that she was tense during the examination, and the earlier pregnancy would cause the uterus to be soft, no experienced gynecologist should conduct an examination of a patient such as A. L. and err on the magnitude here involved. Further, if the examination was difficult, the procedure should not have commenced until Respondent was reasonably positive of the gestational age of the fetus. One indication Respondent received that the fetus was older than 12 weeks was the quantity of fluid drawn. Further, no experienced gynecologist should mistake the head of the fetus as the extremity of the uterus on a patient such as A. L. Once Respondent determined the fetus was more than 16 weeks along, he called Dr. Barile, a gynecologist with admitting privileges at Humana Women's Hospital, Tampa, to request he remain available in case Respondent needed to send A. L. to a hospital. When Respondent determined the gestational age of the fetus' was more than 26 weeks, he again called Barile who suggested it would be better to refer the patient to an obstetrician. Respondent then telephoned his backup obstetrician and found she was on vacation, and a doctor with whom Respondent was not acquainted was taking her calls. Since A. L. was stable and in no apparent distress, Respondent called Dr. Klein, a pediatrician with admitting privileges at Bayfront Memorial Hospital in St. Petersburg. Dr. Klein agreed to take care of the patient by having his associate, who had the duty that day, meet the patient at Bayfront. A. L. had been brought to the clinic by her brother, and Respondent concluded A. L. could be safely transported to Bayfront by automobile and suggested her brother drive her. The brother demurred on the ground that his car overheated and might not make the 40-odd mile trip to Bayfront safely, but another brother had a more reliable car. The other brother was called and agreed to take his sister to Bayfront and stated that he would be at the clinic in about 10 minutes. Approximately 1 hour and 15 minutes later this brother arrived, and A. L. was started to the brother's car. At this time she appeared unsteady, and Respondent concluded she should go to Bayfront by ambulance. When a Hillsborough ambulance service was called, they told Respondent of the policy whereby they could not transport a patient out of Hillsborough County and that he should contact a Pinellas County ambulance service to perform the desired transportation. Respondent then called a Pinellas County ambulance service who arrived about an hour later to take A. L. to Bayfront where she was met by Dr. Yeshnick, the associate of Dr. Klein, who admitted the patient. Between the time Respondent determined the abortion could not be performed at the clinic until A. L.'s arrival at Bayfront Hospital, some 6 hours had elapsed. Of the approximately 15,000 abortions that Respondent has performed, less than 5 became emergencies that required removal from the clinic to a hospital. Respondent's backup procedures for emergencies were adequate. On August 23, 1986, A. L. was in the third trimester of her pregnancy, and the abortion was not necessary to save the life or preserve the health of A. L.
