04-003643PL Department Of Health vs. Sandra Blankenship Status: Closed Recommended Order on Friday, February 18, 2005.

Summary: Respondent violated standards of practice for midwifery by not referring mother to a physician after two hours of second stage labor.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 04-3643PL

)

SANDRA BLANKENSHIP, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

before Larry J. Sartin, an Administrative Law Judge of the

Division of Administrative Hearings, on December 8, 2004, in

Stuart, Florida, and on December 20, 2004, by conference

telephone call.

APPEARANCES

For Petitioner: Robert E. Fricke, Esquire

Diane K. Kiesling, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

For Respondent: Sandra Blankenship, pro se

Post Office Box 6181

Stuart, Florida 34997

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Sandra

Blankenship, committed the violations alleged in an Amended

Administrative Complaint issued by Petitioner, the Department of

Health, and, if so, what disciplinary action should be taken

against her.

PRELIMINARY STATEMENT

In a two-count Amended Administrative Complaint 1 dated

June 15, 2001, the Department of Health (hereinafter referred to

as the "Department") charged Sandra Blankenship with having

violated statutory and rule provisions governing the conduct of

midwifery in Florida. Ms. Blankenship disputed the factual

allegations in the Amended Administrative Complaint by executing

an Election of Rights form in which she requested a formal

administrative hearing before the Division of Administrative

Hearings. 2

Ms. Blankenship's request for hearing was filed with the

Division of Administrative Hearings on October 6, 2004, 3 for the

assignment of an administrative law judge to conduct an

evidentiary hearing. The matter was designated DOAH Case

No. 04-3643PL and was assigned to the undersigned.

By Notice of Hearing entered October 19, 2004, the final

hearing of this case was scheduled to commence December 8, 2004,

in Stuart, Florida.

On November 30, 2004, a Joint Witness List, Joint Records

Stipulation, 4 and Motion on Facts Agreed Upon were filed. In the

Motion on Facts Agreed Upon, which was granted at the

commencement of the final hearing, the parties made certain

stipulations concerning Count I of the Amended Administrative

Complaint. Essentially, Ms. Blankenship withdrew her assertion

that she disputed the facts concerning Count I. Her stipulation

concerning Count I is hereby incorporated into this Recommended

Order by reference.

On December 6, 2004, the Department filed a corrected

Amended Administrative Complaint. 5

At the portion of the final hearing conducted on

December 8, 2004, the Department presented the testimony of

S.B., a former patient of Ms. Blankenship (hereinafter referred

to as "Patient S.B."); Jannie Gichia, Ph.D., C.N.M. (accepted as

an expert in midwifery); and Neil Carter Boland, M.D. (accepted

as an expert in obstetrics and gynecology). The Department also

had admitted 12 exhibits and had judicial notice taken of the

pertinent statute and rule governing this matter.

Ms. Blankenship testified on her own behalf and had one exhibit

admitted.

At the conclusion of the portion of the hearing conducted

on December 8, 2004, Ms. Blankenship requested leave to present

the testimony of Tammy Livak. With the agreement that the

Department would be allowed to call a rebuttal witness,

Ms. Blankenship's request was granted.

On December 20, 2004, the hearing was reconvened by

telephone conference. Ms. Blankenship presented the testimony

of Ms. Livak, and the Department presented in rebuttal the

testimony of Cathy Griffin, R.N., C.N.M., concluding the final

hearing. A Transcript of this portion of the hearing was filed

on January 3, 2005.

By Notice of Filing of Transcript issued January 14, 2005,

the parties were informed that the Transcript of the portion of

the final hearing conducted on December 8, 2004, had been filed.

The parties were also informed that they had until January 24,

2005, to file proposed recommended orders. Both parties filed

post-hearing argument, which has been fully considered in

entering this Recommended Order.

FINDINGS OF FACT

A. The Parties .

1. The Department is the agency in Florida responsible for

regulating the practice of midwifery pursuant to Chapters 20,

456, and 467, Florida Statutes (2004). 6

2. Ms. Blankenship is and has been at all times material

hereto a licensed midwife in the State of Florida, having been

issued license number MW 0091. Ms. Blankenship finished her

training in May 1998 and received her Florida midwifery license

effective July 7, 1998.

B. Patient S.B.

3. Patient S.B., who was 34 years of age, having been born

on January 22, 1964, visited Ms. Blankenship, who was then

practicing midwifery at Tree of Life Maternity Services, Inc.

(hereinafter referred to as "Tree of Life"), in late December

1998. Patient S.B. went to Tree of Life because she was

pregnant and was highly motivated to have an out-of-hospital

vaginal birth. The purpose of her visit to Tree of Life was to

arrange for prenatal and delivery services.

4. This was not Patient S.B.'s first pregnancy. She had

given birth to a son on September 28, 1995. That delivery was

made by cesarean section (hereinafter referred to as "C-

Section") after a long attempt at vaginal delivery. Patient

S.B. was in labor between 24 and 30 hours before the C-Section

was performed.

5. Patient S.B. and Ms. Blankenship discussed at length

the services Patient S.B. would receive. Patient S.B. was asked

questions about her medical history, regular and obstetrical,

which she answered. In particular, Patient S.B. informed

Ms. Blankenship of the difficult birth of her son, including the

fact that he had been delivered by C-Section. 7

6. Following her initial visit, Patient S.B. began

receiving prenatal care at Tree of Life on a monthly basis

initially and, as her "due date" for her baby's birth

approached, more frequently.

7. During the early morning hours of July 9, 1999, Patient

S.B. began having labor pains. Accompanied by her husband,

Patient S.B. arrived at Tree of Life at approximately 6:00 a.m.

She was having moderate contractions, four to five minutes

apart, and her cervix was dilated five centimeters.

8. Patient S.B. was monitored every hour after her

arrival.

9. From approximately 12:45 p.m. until 3:00 p.m., Patient

S.B. relaxed in a tub of water. Part of that time she was noted

to be sleeping. Her contractions continued to be moderate. At

3:00 p.m., Patient S.B. exited the tub.

10. Between her arrival at 6:00 a.m. and 7:45 p.m., S.B.'s

cervix had dilated as follows:

6:00 a.m. 5 to 6 centimeters

11:00 a.m. 7 centimeters

12:30 p.m. 8 centimeters

3:00 p.m. 9 centimeters

7:30 p.m. 9 centimeters

7:45 p.m. 9 centimeters

11. In order for delivery to occur, the mother's cervix

must be dilated ten centimeters, which is referred to as being

"complete." Once the mother becomes complete, the baby's head,

absent obstruction, should be able to move past the mid-point of

the pelvis.

12. A baby's progress is measured, both before and after

the mother becomes complete, from the mid-point of the pelvis,

which is the narrowest part of the mother's cervix. The

location of the baby's head above the mid-point of the pelvis is

measured in centimeters and is referred to as "minus stations."

Therefore, if the baby's head is two centimeters above the mid-

point, it is said to be at "minus-two station." The location of

the baby's head below the mid-point of the pelvis is also

measured in centimeters and is referred to as "plus stations."

Therefore, if the baby's head is two centimeters below the mid-

point, it is said to be at "plus-two station."

13. When Patient S.B. became complete is not specifically

noted on the Labor Sheet or Progress Notes kept by Ms.

Blankenship during Patient S.B.'s attempted delivery. Nowhere

did Ms. Blankenship note specifically that Patient S.B. was

"complete" or dilated ten centimeters.

14. Neither party proved precisely when Patient S.B. was

dilated to ten centimeters, or complete. Dr. Gichia believed

that Patient S.B. was complete at approximately 8:00 p.m.

Dr. Gichia's opinion was based, in part, upon a note indicating

that Patient S.B. was at plus-one station at 7:25 p.m.

Dr. Griffin's reliance upon the note, however, is misplaced.

15. It is doubtful how accurate Ms. Blankenship's

estimates of the stations reached by the baby were, based upon

the fact that she noted that the baby's head had reached a plus-

three or plus-four station by 11:30 p.m., but the baby's head

was only at a plus-one station when Patient S.B. was later

examined in the hospital by Dr. Neil Boland.

16. Dr. Gichia also based her opinion on a note that

Ms. Blankenship had had Patient S.B. start pushing at 8:00 p.m.

Dr. Gichia concluded that Patient S.B., if she were pushing, was

complete and had, therefore, entered what is referred to as

"second stage labor." Again, Dr. Gichia's reliance on the

8:00 p.m. note is misplaced.

17. As explained by Ms. Blankenship, Patient S.B. had

indicated at approximately 8:00 p.m. that she had the urge to

start pushing. Accordingly to Ms. Blankenship, Patient S.B. was

still dilated to only nine centimeters, but she believed that,

with pushing, she would become complete.

18. After allowing Patient S.B. to make some effort to

push, Ms. Blankenship determined that her effort was poor and,

therefore, instructed her to stop for a while. While she wrote

on her Labor Sheet that she was having Patient S.B. rest for "20

minutes," in fact, Patient S.B. rested much longer, not

beginning to actively push again until 9:30 p.m.

19. Although the precise point in time when Patient S.B.

became complete was not proved, it can be said that it did take

place at some point after 7:25 p.m. and before, or at, 9:30 p.m.

This conclusion is supported by Dr. Boland, who assumed that

Patient S.B. began second stage labor at 9:30 p.m. rather than

attempt to identify a precise earlier point in time. 8

20. Although the accuracy of the stations of the baby's

location noted by Ms. Blankenship are questionable and not

supported by the weight of the evidence, 9 Ms. Blankenship

genuinely believed that the baby was at the following stations

at the noted times:

7:25 p.m. plus-one station

9:30 p.m. plus-two station

11:30 p.m. plus-three/four station

"with pushes"

21. At midnight Ms. Blankenship informed Patient S.B.

that, if she did not deliver by 12:30 a.m., July 10th, she would

have her transported to a hospital due to maternal exhaustion.

Patient S.B. agreed.

22. At 12:25 a.m. a "911 call" was made to arrange to have

Patient S.B. transported to a local hospital. She was picked up

at 12:30 a.m.

23. Patient S.B. was not attended to by a physician until

1:30 a.m., an hour after leaving Ms. Blankenship's care.

C. Failure to Progress in Descent .

24. Although testimony was offered at the final hearing

concerning whether Patient S.B. should have delivered within two

hours of beginning stage two labor, the only alleged deficiency

in Ms. Blankenship's treatment of Patient S.B. contained in the

Administrative Complaint is that "Patient S.B.'s second stage of

labor exceeded two (2) hours without progress in descent (the

downward movement of the baby)." Due to this alleged

deficiency, the Department concluded that Ms. Blankenship

violated Florida Administrative Code Rule 64B24-7.008(4)(i)1,

when she failed to consult with, or refer or transfer Patient

S.B. to, a physician.

25. Ms. Blankenship believed that, based upon her

conclusion that the baby had moved from plus-two station at

9:30 p.m. to a plus-three or plus-four station at 11:30 p.m.,

Patient S.B., after beginning second stage labor, had progressed

in descent and, therefore, her referral to a physician was

timely.

26. The term "progress in descent," however, is a

technical term which in the practice of midwifery requires more

than just the movement of the baby which Ms. Blankenship

mistakenly believed she was witnessing.

27. Based upon standards established by the American

College of Obstetricians and Gynecologists (hereinafter referred

to as the "ACOG"), for, among other things, the practice of

midwifery, progress in descent after two hours contemplates

that, once a mother becomes complete, the baby should be born

within two hours or, if not, that the midwife will consult with,

or refer or transfer the mother to, a physician.

28. Ms. Blankenship failed to comply with the ACOG

acceptable definition of progress in descent. Assuming that

Patient S.B. became complete as late as 9:30 p.m., she was not

transferred to the hospital until 12:30 p.m., three hours later,

and was not seen by a physician until 1:30 p.m., four hours

later. While Ms. Blankenship believed that the baby's head was

moving downward during this time, that perceived movement did

not constitute "progress in descent."

D. Malpractice Insurance .

29. The parties stipulated that Ms. Blankenship did not

have malpractice insurance from February 24, 1999, to July 10,

1999, and that she did not inform Patient S.B. that she did not

have malpractice insurance while Patient S.B. was in her care.

30. Ms. Blankenship did not, however, intentionally

deceive Patient S.B. Rather, she had incorrectly believed that

her malpractice insurance had been maintained by a business

associate.

CONCLUSIONS OF LAW

A. Jurisdiction .

31. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2004).

B. The Burden and Standard of Proof .

32. In the Amended Administrative Complaint, the

Department is seeking the imposition of, among other penalties,

the revocation or suspension of Ms. Blankenship's license to

practice midwifery in Florida. Therefore, the Department has

the burden of proving the allegations in the Amended

Administrative Complaint by clear and convincing evidence. See

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Co. , 670 So. 2d 932

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987);

and McKinney v. Castor , 667 So. 2d 387 (Fla. 1st DCA 1995).

33. Clear and Convincing evidence has been defined as

evidence which:

requires that the evidence must be found to

be credible; the facts to which the

witnesses testify must be distinctly

remembered; the testimony must be precise

and explicit and the witnesses must be

lacking in confusion as to the facts in

issue. The evidence must be of such weight

that it produces in the mind of the trier of

fact a firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

C. The Charges Against Ms. Blankenship; Section

467.203(1)(f), Florida Statutes .

34. The grounds proven in support of the Department's

assertion that Ms. Blankenship's license should be revoked or

suspended must be those specifically alleged in the

Administrative Complaint. See , e.g. , Cottrill v. Department of

Insurance , 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v.

Department of State , 501 So. 2d 129 (Fla. 5th DCA 1987); and

Hunter v. Department of Professional Regulation , 458 So. 2d 842

(Fla. 2nd DCA 1984). Due process prohibits the Department from

taking disciplinary action against a licensee based on matters

not specifically alleged in the charging instrument, unless

those matters have been tried by consent. See Shore Village

Property Owners' Association, Inc. v. Department of

Environmental Protection , 824 So. 2d 208, 210 (Fla. 4th DCA

2002); and Delk v. Department of Professional Regulation , 595

So. 2d 966, 967 (Fla. 5th DCA 1992).

35. The specific charges contained in the Amended

Administrative Complaint are based upon alleged violations of

Section 467.203(1)(f), Florida Statutes, which provides

authority for the Department to take disciplinary action against

the midwifery license of any person who commits the following

proscribed pertinent act:

(f) Engaging in unprofessional conduct,

which includes, but is not limited to, any

departure from, or the failure to conform

to, the standards of practice of midwifery

as established by the department, in which

case actual injury need not be established.

36. In particular, the Department alleged in Count I of

the Amended Administrative Complaint that Ms. Blankenship

violated Section 467.203(1)(f), Florida Statutes, by treating

Patient S.B. "without first advising Patient S.B. of the lack of

malpractice insurance, thereby depriving Patient S.B. with the

opportunity to reconsider continuing the use of Respondent's

midwifery services . . . ."

37. In Count II of the Amended Administrative Complaint,

the Department alleged that Ms. Blankenship violated Section

467.203(1)(f), Florida Statutes, because she allowed Patient

S.B. to continue in the second stage of labor for in excess of

two hours without progress in descent and without consulting

with, or referring or transferring Patient S.B. to, a physician.

D. Count I; Failure to Advise of the Lack of Malpractice

Insurance .

38. In support of the allegation that Ms. Blankenship

violated Section 467.203(1)(f), Florida Statutes, contained in

Count I of the Amended Administrative Complaint, the Department

has argued that the "standard[] of practice of midwifery as

established by the department" which she violated by not

informing Patient S.B. of her lack of malpractice insurance, is

found in Section 467.014, Florida Statutes. That statutory

provision provides the following:

A licensed midwife shall include in the

informed consent plan presented to the

parents the status of the midwife's

malpractice insurance, including the amount

of malpractice insurance, if any.

39. Ms. Blankenship did not dispute the allegation of the

Amended Administrative Complaint that, at the time of her

treatment of Patient S.B., she did not have malpractice

insurance and that she did not so inform Patient S.B.

Therefore, Ms. Blankenship, clearly and convincingly failed to

comply with Section 467.014, Florida Statutes.

40. The foregoing conclusion, however, does not support a

conclusion that Ms. Blankenship thereby violated Section

467.203(1)(f), Florida Statutes, as alleged in the Amended

Administrative Complaint. In order to conclude that

Ms. Blankenship violated Section 467.203(1)(f), Florida

Statutes, the Department was required to prove that she "engaged

in unprofessional conduct." In order to show that she engaged

in unprofessional conduct, it was necessary that the Department

prove that Ms. Blankenship "depart[ed] from, or . . . fail[ed]

to conform to, the standards of practice of midwifery as

established by the department . . . ." This the Department did

not do.

41. What the Department proved was that Ms. Blankenship

had failed to follow a statutory directive; it did not prove

that that statutory directive constitutes a "standard of

practice . . . established by the department" as intended by the

Legislature.

42. This conclusion is supported by the fact that the

Legislature has defined the following act in Section 467.203,

Florida Statutes, as an act for which the Department may take

disciplinary action: "Willfully or repeatedly violating any

provision of this chapter . . . ." §467.203(1)(i), Fla. Stat.

The Legislature has, therefore, concluded that only willful and

repeated violations of the general provisions of Chapter 467,

Florida Statutes, are disciplinable and not an isolated

violation like the one the Department proved Ms. Blankenship

committed.

43. Based upon the foregoing, it is concluded that the

Department failed to prove clearly and convincingly that

Ms. Blankenship committed the violation alleged in Count I of

the Amended Administrative Complaint.

E. Count II; Failure to Refer .

44. In support of the allegation that Ms. Blankenship

violated Section 467.203(1)(f), Florida Statutes, contained in

Count II of the Amended Administrative Complaint, the Department

has argued that the "standard[] of practice of midwifery as

established by the department" which she violated is contained

in Florida Administrative Code Rule 64B24-7.008(4)(i)2). That

rule provides the following:

(4) Risk factors shall be assessed

throughout labor to determine the need for

physician consultation or emergency

transport. The midwife shall consult, refer

or transfer to a physician if the following

occur during labor, deliver, or immediately

thereafter:

. . . .

(i) Failure to profess in active labor:

. . . .

2. Second stage: more than 2 hours

without progress in descent.

45. The term "progress in descent" is a technical term

which in the practice of midwifery requires more than just the

movement of the baby.

46. Based upon standards established by the ACOG, more

than two hours without progress in descent contemplates that,

once a mother becomes complete, the baby should be born within

two hours or, if not, that the midwife will consult with, or

refer or transfer the mother to, a physician.

47. While Ms. Blankenship argued that she was in

compliance with the standard of practice established in the

rule, she failed to comply with the ACOG acceptable definition

of progress in descent. At least three hours after Patient S.B.

became complete, delivery had not occurred and Ms. Blankenship

had not referred her to a physician.

48. Based upon the foregoing, it is concluded that the

Department proved clearly and convincingly that Ms. Blankenship

committed the violation alleged in Count II of the Amended

Administrative Complaint.

F. Appropriate Disciplinary Action .

49. The Department is authorized, upon finding a violation

of Section 467.203(1), Florida Statutes, to impose the

discipline specified in Section 467.203(2), Florida Statutes,

which ranges from revocation to a reprimand.

50. Florida Administrative Code Rule 64B24-8.002 sets

forth the following guidelines concerning violations related to

standards of practice:

(4) The following guidelines shall be

used for the disposition of disciplinary

cases involving specific types of

violations:

. . . .

(c) For violations related to standards

of practice regarding:

. . . .

3. Any act of negligence or departure from

standards of practice established by law or

rule.

. . . .

For a first offense, a reprimand, a fine up

to $200, probation or suspension; for a

second offense, probation and a fine up to

$400 per offense, a requirement to work

under the supervision of a preceptor during

probationary period until deemed safe to

practice alone or revocation, or any

combination thereof; for a third offense, a

fine up to $1000 and revocation.

51. Florida Administrative Code Rule 64B24-8.002(1),

requires that the Department take into consideration the

following factors:

(a) The severity of the offense;

(b) The danger to the public;

(c) The number of repetitions of

offenses;

(d) The length of time since date of

violation;

(e) The number of disciplinary actions

taken against the licensee;

(f) The length of time licensee has

practiced;

(g) The actual damage, physical or

otherwise, to the patient;

(h) The deterrent effect of the penalty

imposed;

(i) Any efforts for rehabilitation;

(j) Any other mitigating or aggravating

circumstances.

52. Based upon the foregoing, the suggested penalty for

Ms. Blankenship's violation of the standards of practice, a

first offense, is "a reprimand, a fine up to $200, probation or

suspension," absent consideration of the factors specified in

Florida Administrative Code Rule 64B24-8.002(1). Taking into

account those factors, a suspension of one year, followed by

probation for two years is an appropriate penalty in this case,

not revocation, which the Department has suggested without

explanation.

53. Although the evidence failed to prove that

Ms. Blankenship was responsible for the baby's death in this

case, there was harm caused to Patient S.B. in that she was

allowed to reach maternal exhaustion before being transported to

the hospital. In mitigation, Ms. Blankenship's care of Patient

S.B. took place almost six years ago, she had just obtained her

license, and there is no evidence that she has had any other

violation of the standards of practice.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by the

Department:

1. Dismissing Count I of the Amended Administrative

Complaint;

2. Finding that Sandra Blankenship violated Section

467.203(f), Florida Statutes, as alleged in Count II of the

Amended Administrative Complaint; and

3. Suspending Ms. Blankenship's midwifery license for a

period of one year from the date the final order and placing her

license on probation for two years thereafter.

DONE AND ENTERED this 18th day of February, 2005, in

Tallahassee, Leon County, Florida.

S

___________________________________

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of February, 2005.

ENDNOTES

1 / Assuming that the Amended Administrative Complaint replaced

an original Administrative Complaint, no explanation of when the

original Administrative Complaint was issued or the extent to

which it was amended was given by the parties.

2 / Ms. Blankenship executed her request for an evidentiary

hearing on January 5, 2004. No explanation was given as to why

it took until January 5, 2004, for Ms. Blankenship to execute her

request for hearing when the Amended Administrative Complaint had

been signed June 15, 2001. Nor did either party raise any issue

concerning this lapse.

3 / Again, no explanation of what took place between January 5,

2004, when Ms. Blankenship requested an evidentiary hearing, and

the date the matter was filed with the Division of Administrative

Hearings, October 6, 2004, was given by the parties.

4 / The parties stipulated to the entry into evidence of:

(a) all medical records regarding S.B. (the patient who is the

focus of this matter) from Ms. Blankenship's various offices

and/or relocations; (b) medical records regarding S.B. from

Columbia Medical Center regarding delivery records of Neil C.

Boland, M.D.; (c) fetal heart tracings printed July 10, 1999, at

Columbia Medical Center; and (d) Ms. Blankenship's response to

the Department's complaint.

5 / The only correction made by the Department was to include a

copy of page 3 of the Amended Administrative Complaint, which had

not been included with the Amended Administrative Complaint filed

with the Division of Administrative Hearings on October 6, 2004.

6 / The statutes and rules relevant to this matter are those in

existence in 1999. Therefore, all further references to statutes

or rules in this Recommended Order shall be to the 1999 version

unless otherwise indicated.

7 / Dr. Gichia found fault in her review of this matter with the

amount of information Ms. Blankenship obtained about S.B.'s C-

Section. She described her concerns in a written opinion she

provided to the Department (Petitioner's Exhibit 3) and gave some

testimony on the subject at the final hearing. Dr. Neil Boland

also gave testimony concerning whether Ms. Blankenship properly

reviewed Patient S.B.'s medical records of her C-Section. Those

suggested shortcomings were not alleged in the Amended

Administrative Complaint and, therefore, are not relevant to this

matter. See Shore Village Property Owners' Association, Inc. v.

Department of Environmental Protection , 824 So. 2d 208, 210 (Fla.

4th DCA 2002); Cottrill v. Department of Insurance , 685 So. 2d

1371, 1372 (Fla. 1st DCA 1996); and Delk v. Department of

Professional Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA 1992).

Nor was the testimony of Dr. Gichia or Dr. Boland concerning this

matter credited.

8 / While Dr. Boland also indicated that he assumed that Patient

S.B. was complete at 8:00 p.m., he, like Dr. Gichia, based this

testimony on his incomplete understanding of Ms. Blankenship's

Labor Sheet notes.

9 / Based upon Dr. Boland's testimony and his examination of

Patient S.B., the baby did not progress beyond a plus-one

station.

COPIES FURNISHED:

Robert E. Fricke, Esquire

Diane K. Kiesling, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

Sandra L. Blankenship

Post Office Box 6181

Stuart, Florida 34997

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Timothy M. Cerio, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Dr. John O. Agwunobi, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399-1701

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.