00-004714PL Department Of Health, Board Of Medicine vs. Owen R. Hunt, Jr., M.D. Status: Closed Recommended Order on Wednesday, October 3, 2001.

Summary: Department alleged that doctor failed to practice medicine with the care and skill of a reasonably prudent physician. Recommend final order be entered dismissing with prejudice the complaint against Respondent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 00-4714PL

)

OWEN R. HUNT, JR., M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided, and a formal hearing was held on

March 14, 2001, and August 15 and 16, 2001, in Deland, Florida,

and conducted by Harry L. Hooper, Administrative Law Judge, with

the Division of Administrative Hearings.

APPEARANCES

For Petitioner : Bruce A. Campbell, Esquire

Agency for Health Care Administration

Post Office Box 14229

Mail Stop 39-A

Tallahassee, Florida 32317-4229

For Respondent : Carol A. Lanfri Esquire

FPIC Insurance Group, Inc.

1000 Riverside Avenue, Suite 800

Jacksonville, Florida 32204

STATEMENT OF THE ISSUE

Whether disciplinary action should be taken against

Respondent's license.

PRELIMINARY STATEMENT

Petitioner, Department of Health (Department), filed an

Administrative Complaint before the Board of Medicine against

Owen R. Hunt, Jr., M.D. (Dr. Hunt), on October 24, 2000. On

November 3, 2000, Dr. Hunt disputed the allegations of fact

contained in the complaint and requested a formal hearing. On

November 20, 2000, the matter was filed with the Division of

Administrative Hearings. A hearing was set for March 14, 2001.

Petitioner, on February 19, 2001, filed a Notice of

Scrivener's Error seeking to amend the pleadings with regard to

the times certain events were alleged to have occurred.

Respondent objected to the requested changes. By Order dated

March 6, 2001, the alleged scrivener's errors were

recharacterized as amendments to the pleadings and were allowed

despite the objection.

At the hearing, Petitioner attempted to admit hospital

records into evidence. The hospital records were indispensable

to Petitioner's case. Respondent objected to the admission of

the records on the grounds of hearsay. Petitioner was unable to

lay a proper foundation for the admissibility of the emergency

records and the matter was, therefore, not received into

evidence. Petitioner thereafter rested.

The next day, March 15, 2001, Petitioner moved to reopen

the proceedings. This motion was opposed by Respondent. By

Order dated March 23, 2001, Petitioner's motion was granted.

The case was set for final hearing on June 12, 2001.

On April 25, 2001, a Petition for Review of a Non-Final

Order of the Division of Administrative Hearings was filed by

Respondent with the First District Court of Appeal. On May 11,

2001, subsequent to Respondent's Motion for Abeyance, the case

was placed in an inactive status. On June 7, 2001, the First

District Court of Appeal dismissed the interlocutory appeal and

issued its mandate. The case was subsequently set for hearing

by a Third Notice of Hearing and was heard on August 15 and 16,

2001, in Deland, Florida.

Petitioner offered seven and had admitted six items of

documentary evidence. Petitioner presented the testimony of

Heidi M. Haeseker, an investigator supervisor with the Agency

for Health Care Administration, Debra Bradfield, records

custodian for Florida Hospital Deland, and Mark J. Slepin, M.D.

Respondent offered and had admitted two items of evidence.

Respondent called Susan Griffis, M.D., who testified by video

deposition; Don Hilbun, a registered nurse at Florida Hospital

Deland; and Jay Edelberg, M.D.

Transcripts of the hearing were filed with the Division of

Administrative Hearings on April 1, 2001, and September 13,

2001. Proposed Recommended Orders were timely filed by both

parties and were considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Dr. Hunt is and has been at all times material,

licensed by the Florida Board of Medicine. His license number

is ME 001081.

2. The Department of Health is charged with regulating the

practice of medicine.

3. The Department of Health may contract with the Agency

for Health Care Administration (AHCA) to provide investigative

and prosecutorial services required by the Division of Medical

Quality Assurance, councils, or boards, as appropriate. In this

case, ACHA provided those services to the Department of Health.

4. The Board of Medicine is an administrative body

statutorily situated under the Division of Medical Quality

Assurance.

5. On the evening of June 28, 1999, Dr. Hunt was on duty

in the emergency room of the Memorial Hospital-West Volusia.

6. Memorial Hospital-West Volusia subsequently became

known as Florida Hospital Deland (Hospital Deland).

7. At 9:35 p.m., on June 28, 1999, Patient V.V., a

22-month-old female, was brought by her father to the emergency

room of Hospital Deland with a complaint of fever and shortness

of breath. It was reported to emergency room personnel that

V.V. had experienced shortness of breath for many hours before

she was brought to the emergency room.

8. V.V. was born on August 29, 1997. V.V. had a history

of multiple congenital deformities including panhypopituitarism

and a severe cleft lip and palate, among other medical problems.

V.V. had visited Hospital Deland at least 68 times previous to

her visit of June 28, 1999.

9. Panhypopituitarism means that the part of the brain

that regulates all of the glands and hormones that the body

requires to function, is not functioning. This gives rise to a

host of problems, including hypothyroidism, retarded growth, and

holoprosencephaly. This latter term means that the brain does

not progress or develop much beyond the fetal stage. V.V. also

experienced seizures and sodium imbalances which would range

from very high to very low.

10. V.V. was described by her Board-certified

pediatrician, Dr. Susan Griffis, as being very difficult to

manage medically. Dr. Griffis described V.V. as being basically

in a vegetative state. She noted that V.V.'s deformities were

not compatible with long-term existence. V.V.'s prognosis at

birth was a life span of two years. By June 28, 1999, she had

attained the age of 22 months.

11. At 9:35 p.m., Nurse Hilbun noted a respiration of 60

and determined, through the use of a pulse oximeter, that V.V.'s

concentration of oxygen was 60 percent.

12. V.V. was placed on 100 percent oxygen along with an

aerosol medicine through the application of a nonrebreather

mask. V.V.'s skin was dry and pink which indicated that she was

getting sufficient oxygen.

13. Dr. Hunt, on June 28, 1999, first saw V.V. at

10:00 p.m. He conducted a physical examination which revealed,

among other things, that the child had shortness of breath and a

temperature of 101.8 degrees. The child was diagnosed with

bilateral pneumonia.

14. At 10:16 p.m., Dr. Hunt ordered diagnostic studies

including a chest X-ray and laboratory studies, which include an

RSV test for virus, and a complete blood count (CBC). The CBC

could not be obtained because blood could not be drawn. Blood

could not be drawn because V.V.'s veins were very small and

because of scarring from numerous previous extractions of blood.

15. Dr. Hunt attempted to contact Dr. Griffis, V.V.'s

pediatrician, for advice on a course of treatment but was unable

to reach her. Dr. Hunt then contacted Dr. Reinertsen, the

pediatrician on call who advised Dr. Hunt to intubate the

patient and transfer her to Arnold Palmer Hospital in Orlando.

It cannot be determined from the record exactly when this

telephone call transpired. Dr. Reinertsen did not come to the

emergency room.

16. Arnold Palmer Hospital had an intensive care

pediatrics unit. No intensive care pediatrics unit was

available at Hospital Deland. Dr. Hunt did not transfer the

child because he determined that V.V. was not stable to the

point where she would survive the trip. He also did not follow

Dr. Reinertsen's advice to immediately intubate the child, nor

was he required to follow his advice.

17. At 9:35 p.m., V.V.'s oxygen saturation was 60 percent

and she had a heart rate of 160. At 9:45 p.m., she had an

oxygen saturation of 85 percent. At 11:00 p.m., V.V's oxygen

saturation was 98 percent and her temperature had improved to

100.6 degrees. At 11:40 p.m., respiration had improved to 52

and her heart rate was down to 140. At 1:40 a.m., June 29,

1999, respiration was 52, her heart rate was 142 and oxygen

saturation was 95 percent. At 2:30 a.m., respiration was 52 and

her heart rate was 142. At 3:00 a.m., respiration was 60, her

heart rate was 146 and oxygen saturation was 95 percent.

18. During this period, from 9:35 p.m. until immediately

before 3:00 a.m. on June 29, 1999, V.V. was not sufficiently

stable for transfer but her condition was not deteriorating.

19. At approximately 4:00 a.m., V.V.'s condition took a

dramatic turn for the worse. The child began to have difficulty

breathing and was experiencing apnea.

20. When the child's condition began to deteriorate ,

Dr. Hunt asked for and received permission from V.V.'s parents

to intubate V.V.

21. Although V.V. had been placed on oxygen shortly after

arrival, an oxygen mask will only put oxygen into the lungs. It

will not facilitate exhalation. Intubation, if successful,

provides a clear passage to the lungs and facilitates both

inhalation and exhalation.

22. Dr. Hunt was unsuccessful in intubating V.V. An

anesthesiologist was called in and eventually succeeded in

intubating V.V. Nevertheless, V.V. continued to rapidly

deteriorate, and suffered cardiac and respiratory arrest at

approximately 5:00 a.m. Unsuccessful efforts were made to

defillibrate V.V. with electric paddles at 5:12 a.m., 5:13 a.m.,

and 5:14 a.m., but the child could not be resuscitated.

23. Intubating any baby is a difficult and dangerous task.

Intubating a baby with the deformities that characterized V.V.

is particularly dangerous because the tube could easily

penetrate the brain instead of going down the back of the throat

as it should.

24. V.V. had been hospitalized at Shands Hospital for a

repair of her cleft palate and cleft lip when she was

approximately 18 months of age. Shands is a well-known research

hospital with a superb reputation. Before the repair could be

accomplished, it was necessary to intubate V.V. and the surgeons

at Shands were unable to do it. Dr. Hunt was aware of this.

Because of these factors, Dr. Hunt was reluctant to

intubate V.V.

The testimony of the State's Expert

25. Mark Slepin, M.D., testified as an expert witness in

the area of the delivery of emergency medical care. He is the

chief operating officer and chief compliance officer for ECS

Holdings. ECS Holdings is a company which provides quality

assurance services, among other things, to hospitals throughout

Florida and to hospitals in many other states. Dr. Slepin

served a residency in emergency medicine at the University

Hospital, Jacksonville.

26. Dr. Slepin practiced emergency medicine for ten years

at hospitals in the southeastern Virginia area. He practiced at

St. Mary's and Good Samaritan Hospitals in West Palm Beach, and

at hospitals in Milton and Sarasota, prior to joining ECS. He

is Board-certified in emergency medicine. He was accepted as an

expert in the practice of emergency medicine.

27. Dr. Slepin reviewed V.V.'s hospital records and

statements made by Dr. Hunt. He opined that Dr. Hunt, for the

most part, practiced within the standard of care that is

expected of a reasonably prudent emergency physician with regard

to his evaluation of the patient, his work-up of the patient,

and his initial management of the patient in the early stages of

the patient's course in the emergency room.

28. Dr. Slepin thereafter opined that the plan of care was

not a plan that a reasonably prudent emergency physician would

take. There was no written "do not resuscitate" order. He

opined that under those circumstances Dr. Hunt should have

either admitted V.V. into the hospital or transferred her to a

hospital with appropriate resources. Moreover, Dr. Hunt failed

to provide appropriate airway management, in his opinion. He

opined that Dr. Hunt left the patient in limbo for five hours

and, therefore, the patient eventually succumbed because there

was no definitive airway intervention in a patient who needed

airway intervention.

29. Dr. Slepin opined that the medical records adequately

documented the patient's response to therapy and progress,

except that there should have been additional physician's notes

regarding the patient's progress filed between the initial

evaluation and the eventual demise.

The testimony of the Respondent's Experts

30. Donald Hilbun, Jr., is a registered nurse who has a

bachelor of science degree in nursing from the University of

South Alabama. He was a medic in the military for three years

and practiced in the labor and delivery unit of a military

medical facility in Alaska where he delivered health care to

babies. He is certified by the American Heart Association in

advanced cardiac life support.

31. Nurse Hilbun had worked at the Hospital Deland for one

year on June 28, 1999. He was accepted as an expert on the

practice of nursing.

32. Nurse Hilbun prepared nurses notes for V.V., which

were part of the overall medical record of V.V.'s care.

33. It is Nurse Hilbun's opinion that V.V. was never

stable enough to permit a successful transfer to the Arnold

Palmer Hospital. He does not believe Dr. Hunt withheld

appropriate treatment.

34. Jay Edelberg, M.D., is a Board-certified emergency

room physician. He has a degree in dentistry and received his

medical degree in 1975. He did a surgical internship for one

year at St. Francis Hospital in Hartford, Connecticut, and did

an emergency medicine residency from 1976 to 1978 at what is now

called Shands of Jacksonville. He is currently in private

practice. He also works in the emergency room of Flagler

Hospital which is similar in size to Hospital Deland.

35. Dr. Edelberg has had a contract with the AHCA for the

last seven or eight years. The contract provides that he is to

review cases relating to emergency room physicians. He gives

written opinions, when asked, to the probable cause panel of the

Board of Medicine. He was accepted as an expert in the field of

emergency room medicine.

36. Dr. Edelberg reviewed V.V.'s hospital records. He

opined that when treating a patient who is having shortness of

breath, intubation is done only as a last resort. He opined

that Dr. Hunt's decision to intubate V.V. at the time he did was

the correct decision and that it would have been a mistake to

have done it earlier.

37. Dr. Edelberg opined that the events of the evening of

July 28, 1999, and the morning of July 29, 1999, were adequately

documented by Dr. Hunt.

38. Dr. Edelberg pointed out that Dr. Reinertsen was

on-call for Dr. Griffis, V.V.'s pediatrician. He was not on-

call for the emergency room. He also pointed out that when

someone like Dr. Reinertsen is consulted, unless that person

comes in and takes over the case, it is the emergency room

physician who must ultimately make all of the decisions with

regard to care.

39. Dr. Edelberg stated that it was his opinion, within a

reasonable degree of medical certainty, that the care provided

to V.V. met the required standard of care.

Conclusion

40. On the whole, the expert testimony of Dr. Edelburg and

Nurse Hilbun, was more persuasive than that of Dr. Slepin.

CONCLUSIONS OF LAW

41. The Division of Administrative Hearings has

jurisdiction in accordance with Section 120.57, Florida

Statutes, and Section 456.073(5), Florida Statutes.

42. The party seeking to prove the affirmative of an issue

has the burden of proof. Florida Department of Transportation

v. J.W.C. Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981) and

Balino v. Department of Health and Rehabilitative Services , 348

So. 2d 349 (Fla. 1st DCA 1977). Therefore, the burden of proof

is on Petitioner.

43. Because this case is penal in nature, the material

allegations set forth in the Administrative Complaint must be

proven by clear and convincing evidence. Department of Banking

and Finance v. Osborne Stern and Company, Inc. , 670 So. 2d 932

(Fla. 1996); and Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987).

44. The Board of Medicine is empowered to revoke, suspend,

or otherwise discipline the license of a physician for a

violation of Section 458.331(1), Florida Statutes.

45. Section 458.331(1)(t), Florida Statutes, requires that

a physician licensed by Chapter 458, Florida Statutes, "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."

46. Section 458.331(1)(m), Florida Statutes, provides that

a physician licensed by Chapter 458, Florida Statutes, must keep

medical records which justify a course of treatment,

" including, but not limited to, patient histories; examination

results; test results; records of drugs prescribed, dispensed,

or administered; and reports of consultations and

hospitalization."

47. Rule 64B8-9.003(2), Florida Administrative Code,

requires that medical records contain, "sufficient detail to

clearly demonstrate why the course of treatment was undertaken

or why an apparently indicated course of treatment was not

undertaken."

48. Rule 64B8-9.003(3), Florida Administrative Code,

requires that the medical record "shall contain sufficient

information to identify the patient, support the diagnosis,

justify the treatment and document the course and results of

treatment accurately, by including, at a minimum, patient

histories; examination results; test results; records of drugs

prescribed, dispensed, or administered; reports of consultations

and hospitalizations; and copies of records or reports or other

documentation obtained from other health care practitioners at

the request of the physician and relied upon by the physician in

determining the appropriate treatment of the patient."

49. Patient records must contain a sufficient amount of

information so that "neutral third parties can observe what

transpired during the course of treatment of a patient."

Robertson v. Dept. of Professional Regulation, Board of

Medicine , 574 So. 2d 153, 156 (Fla. 1st DCA 1987).

50. The evidence in the case failed to establish by clear

and convincing evidence that Dr. Hunt failed to "practice

medicine with that level of care and treatment which is

recognized by a reasonably prudent similar physician as being

acceptable under similar conditions and circumstances."

51. The evidence in the case failed to establish by clear

and convincing evidence that Dr. Hunt failed to prepare adequate

medical records.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law ,

it is

RECOMMENDED

That a final order be entered dismissing with prejudice the

complaint filed against Dr. Hunt.

DONE AND ENTERED this 3rd day of October, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

HARRY L. HOOPER

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of October, 2001.

COPIES FURNISHED :

Tanya Williams, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way, Bin A02

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

Bruce A. Campbell, Esquire

Agency for Health Care Administration

Post Office Box 14229

Mail Stop 39-A

Tallahassee, Florida 32317-4229

Carol A. Lanfri, Esquire

FPIC Insurance Group, Inc.

1000 Riverside Avenue, Suite 800

Jacksonville, Florida 32204

Mason H. Grower, Esquire

Grower, Ketcham et. al

Post Office Box 538065

Orlando, Florida 32853-8065

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.