06-001946PL Department Of Health, Board Of Medicine vs. George Figueroa, M.D. Status: Closed Recommended Order on Wednesday, December 13, 2006.

Summary: Respondent failed to hospitalize a patient where the diagnosis warranted hospitalization.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE , )

)

Petitioner , )

)

vs. ) Case No. 06 - 1946PL

)

GEORGE FIGUEROA, M.D. , )

)

Respondent . )

)

RECOMMENDED O RDER

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

on August 18, 2006, in St. Petersburg, Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: E phraim Livingston, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Bruce D. Lamb, Esquire

Jennifer Ferrer, Esquire

Ruden, McClosky, Smith , Schuster, &

Russell, P.A.

401 East Jackson Street, 27th Floor

Tampa, Florida 33602 - 0551

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated

Subsections 458.331(1)(m) and 458.331(1)(t), Flor ida Statutes

(2000), 1 and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On September 20, 2002, Petitioner, Department of Health,

Board of Medicine (Department), filed a two - count Administrative

Complaint against Respondent, George Figu eroa, M.D.

(Dr. Figueroa), alleging that Dr. Figueroa violated Subsections

458.331(1)( m ) and 458.331(1)( t ), Florida Statutes. Dr. Figueroa

requested an administrative hearing, and the case was forwarded

to the Division of Administrative Hearings on May 30 , 2006, for

assignment of an administrative law judge to conduct the final

hearing.

The final hearing was originally scheduled for August 16

and 17, 2006. The Department filed a Notice of Unavailability

for Final Hearing, and the final hearing was resch eduled for

August 17 and 18, 2006.

At the final hearing, official recognition was taken of

Florida Administrative Code Rule 64B8 - 8.001, and the Department

was allowed to file a copy of the rule after the close of the

final hearing.

The parties filed a Jo int Pre - hearing Stipulation, where

the parties agreed to certain facts contained in section E of

the Joint Pre - hearing Stipulation. To the extent relevant,

those facts have been incorporated in this Recommended Order.

At the final hearing, Joint Exhibit 1, a composite of

medical records for Patient G.C. (G.C.), was admitted into

evidence. The Department called no witnesses. Petitioner ' s

Exhibits 2, 3, 4, and 5 were admitted into evidence.

Petitioner ' s Exhibits 4 and 5 are the depositions of Gordon

Rafo ol, M.D., which were submitted in lieu of his live

testimony.

Dr. Figueroa testified on his own behalf at the final

hearing and called Arthur Harold, M.D., as a witness.

Respondent ' s Exhibits 1 and 2 were admitted into evidence.

The one - volume Transcri pt of the final hearing was filed on

September 11, 2006. The parties agreed to file their proposed

recommended orders within ten days of the filing of the

Transcript. Dr. Figueroa filed a Motion for Extension of Time

to File Proposed Recommended Order, w hich was granted, and the

parties were to file their proposed recommended orders no later

than September 25, 2006. The Department ' s Proposed Recommended

Order was timely submitted. Dr. Figueroa ' s Proposed Recommended

Order and closing argument were recei ved on October 23, 2006.

Dr. Figueroa attempted to fax his Proposed Recommended Order and

closing argument on September 25, 2006, and received a fax

confirmation; however, the Proposed Recommended Order and

closing argument were not received by the Divisi on of

Administrative Hearings on September 25, 2006. The parties '

Proposed Recommended Orders have been considered in rendering

this Recommended Order.

FINDINGS OF FACT

1. The Department is the state department charged with

regulating the practice of m edicine pursuant to Section 20.43

and Chapters 456 and 458, Florida Statutes (2006).

2. At all times material to this proceeding, Dr. Figueroa

was a licensed physician within the State of Florida, having

been issued license number ME 60819. Dr. Figueroa is board -

certified in Family Practice.

3. At all times material to this proceeding, Dr. Figueroa

was the supervisor and employer of mid - level provider Carl

Sellers, P.A. (Mr. Sellers).

4. G.C., a 33 - year - old male, first presented to

Mr. Sellers as a new patient on November 14, 2000. G.C.

complained of a two - month history of coughing, low - grade fever,

fatigue, and heavy breathing. G.C. ' s temperature was 98.4, his

weight was 181 pounds, and his heart rate was 68 beats per

minute.

5. Mr. Sellers conduct ed an examination of G.C. and noted

that G.C. was having difficulty taking a deep breath, shortness

of breath on inspiration that was better if standing upright,

severe fatigue, and fits of couching where he nearly vomited.

Mr. Sellers also noted that G.C . had mild lymph adenopathy.

6. Mr. Sellers ' diagnosed G.C. with a persistent upper

respiratory infection. He prescribed Zithromax and Guaifed TR

and ordered a chest X - ray and blood testing, including a

complete blood count (CBC) with differential, compr ehensive

metabolic profile (CMP), and erythrocyte sedimentation rate

(ESR). G.C. was instructed to return in a week or sooner if he

worsened.

7. Dr. Figueroa ' s normal operating practice was to review

Mr. Sellers ' files of the previous day on the followin g morning.

Dr. Figueroa reviewed G.C. ' s medical record and concurred with

Mr. Sellers ' diagnosis.

8. Laboratory results from the blood testing arrived in

the office of Dr. Figueroa on November 20, 2000. G.C. ' s blood

testing results revealed abnormal li ver function, anemia,

borderline protein, and an abnormal sedimentation rate. The

results of the blood tests did not warrant immediate follow - up

with G.C.

9. Mr. Sellers reviewed the laboratory report of the blood

tests and indicated that he would discus s the results with G.C.

on his next visit.

10. G.C. was scheduled for a return visit on November 21,

2000, but called Dr. Figueroa ' s office and rescheduled his

appointment for November 22, 2000. G.C. failed to keep his

scheduled appointment.

11. On Nove mber 22, 2000, Mr. Sellers reviewed the

Radiological Report for G.C. The report stated:

The lungs are clear of infiltrates. There is

mild blunting of the costophrenic sulci

probably representative of small effusions.

The heart size is moderately enlarge d. No

pulmonary edema nor widening of the superior

mediastinum detected.

The impression of the radiologist was " moderate cardiomegaly

with probably small pleural effusions. " The Department ' s

expert, Dr. Rafool, testified that the Radiological Report was

an indication that G.C. ' s heart was failing , which was

inconsistent with the initial diagnosis of upper respiratory

infection. Dr. Figueroa and his expert, Dr. Harold, testified

that radiologists often " over read " chest X - ray s; therefore, the

Radiologica l Report did not warrant emergent action by

Dr. Figueroa. Dr. Rafool countered the common over - read

argument by testifying that regular radiologists do not

equivocate because it causes more work for the ordering

physician. The language of the radiologist is clearly intended

to alert Dr. Figueroa to the presence of unusual conditions

observed in G.C. ' s chest X - ray that were inconsistent with an

upper respiratory infection. Dr. Rafool ' s testimony is more

credible concerning the significance of the Radiolog ical Report

and its implications on the diagnosis of G.C.

12. Dr. Rafool testified that the Radiological Report

indicated that G.C. ' s heart was failing , which constitutes a

" medical emergency " that required urgent notification of the

patient. Dr. Figuero a and Dr. Harold conceded that the report

indicated conditions that warranted " timely " follow - up, but not

immediate intervention or contact with the patient. The

Radiological Report revealed a " moderate " cardiomegaly that was

an indication of cardiomyopat hy, a heart condition that is more

often fatal if not corrected by treatment that may include a

heart transplant. Since early intervention is likely to lead to

an opportunity for a favorable outcome, the testimony of

Dr. Rafool is more credible regarding the need for notification

of the patient.

13. The record does not indicate any affirmative effort by

Dr. Figueroa, his staff, or by Mr. Sellers to contact G.C.

between November 22 and November 27, 2000, which was the next

time that G.C. presented to Dr. Figueroa ' s office.

14. On November 27, 2000, G.C. was complaining of

worsening conditions since November 23 including swollen legs,

inability to sleep at night, and coughing with shortness of

breath mainly at bedtime. G.C. ' s temperature was 97.2, his

wei ght was 188 pounds, and his heart rate was 114 beats per

minute.

15. Mr. Sellers conducted an examination of G.C. and noted

definite lid lag with mild exophthalmia, crackles in the lungs

with no wheeze, moderate jugular vein distention, orthopnea,

grade 2 pitting edema, and no goiter.

16. Mr. Sellers ordered a STAT EKG on G.C. The EKG

indicated " sinus tachycardia with occasional ventricular

premature complexes and possible left atrial enlargement. "

Mr. Sellers documented that G.C. might be suffering fr om left

ventricular hypertrophy.

17. Mr. Sellers ' primary diagnosis of G.C. was

hyperthyroid crisis (storm), his secondary diagnosis was mild

congestive heart failure secondary to hyperthyroid crisis caused

by high output failure, his third diagnosis was IDA, the fourth

diagnosis was elevated liver function tests and bilirubin, and

the fifth diagnosis was insomnia. Mr. Sellers mistakenly

diagnosed G.C. with a hyperthyroid crisis.

18. Mr. Sellers consulted with Dr. Figueroa, who also

examined G.C. Dr. Fi gueroa concurred with the assessment,

diagnosis, and treatment plan of Mr. Sellers, including the

diagnosis of hyperthyroid crisis. He indicated on the EKG strip

that he agreed with the findings of G.C. ' s EKG.

19. A patient in a hyperthyroid crisis requi res immediate

hospitalization. Dr. Figueroa did not hospitalize G.C.

20. Mr. Sellers prescribed 40 mg of Lasix, daily; 40 mg of

Inderal, twice daily; and 50 mg of propylthiouracil, three times

daily. The propylthiouracil prescribed was an insufficient dose

based on the diagnosis of hyperthyroid crisis.

21. Dr. Harold testified that G.C. did not present

clinical signs of pulmonary edema during Mr. Sellers '

examination on November 27, 2000, based on a lack of acute

distress, moist rales and rhonchi thro ughout the lung fields,

and respiratory distress. Dr. Rafool opined that G.C. did

present clinical signs of pulmonary edema based on the crackles

in the lungs, neck vein distension, pitting edema, elevated

heart rate, and weight gain. The Department has failed to

establish by clear and convincing evidence that pulmonary edema

was ever clinically apparent to Dr. Figueroa or Mr. Sellers. In

fact, hours after G.C. was examined by Dr. Figueroa and

Mr. Sellers, the emergency room physicians did not diagnose G .C.

with pulmonary edema.

22. Inderal is contraindicated in the presence of

pulmonary edema. Since pulmonary edema was not clinically

apparent, Inderal was appropriately prescribed.

23. Mr. Sellers ' diagnosis of mild congestive heart

failure was inco rrect. Based on the symptoms exhibited by G.C.

of neck vein distension, weight gain, orthopnea, and grade

pitting edema, it should have been apparent that G.C. had severe

heart failure.

24. G.C. presented to the Bayfront Medical Center Hospital

Emerge ncy Room at 10:03 p.m. on November 27, 2000. G.C.

complained of abdominal pain and swelling, nausea and vomiting,

and difficulty breathing.

25. Examination of G.C. by emergency room personnel

revealed the presence of bibasilar rales, but good breath

soun ds. Hospital chest X - ray revealed cardiomegaly, no

infiltrates.

26. At 1:33 a.m. on November 28, 2000, G.C. went into

cardiac arrest. G.C. was pronounced dead at 3:04 a.m.,

November 28, 2000. An autopsy performed on G.C. revealed

dilated cardiomyopathy , bi - ventricular dilation, pulmonary

edema, and congested liver. The immediate cause of death was

listed as idiopathic dilated cardiomyopathy. The autopsy report

indicated that G.C. also had pulmonary edema; however, the

pulmonary edema could have result ed from the large amounts of

fluids that were being administered to G.C. by hospital staff

during the last few hours of G.C. ' s life.

27. Dr. Figueroa was notified of G.C. 's demise on

November 28, 2000, and he immediately sent his medical records

on G.C. t o his legal counsel without making any further

notations on the records.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (200 6 ).

29. The Department has the burden to establish the

allegations in the Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996).

30. The Department has al leged that Dr. Figueroa violated

Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes,

which provide:

(1) The following acts shall constitute

grounds for which disciplinary action

specified in subsection (2) may be taken:

* * *

(m) Failin g to keep legible, as defined by

department rule in consultation with the

board, medical records that identify the

licensed physician or the physician extender

and supervising physician by name and

professional title who is or are responsible

for rendering , ordering, supervising, or

billing for each diagnostic or treatment

procedure and that justify the course of

treatment of the patient, including, but not

limited to, patient histories; examination

results; test results; records of drugs

prescribed, dispen sed, or administered; and

reports of consultations and

hospitalizations.

* * *

(t) Gross or repeated malpractice or the

failure to practice medicine with that level

of care, skill, and treatment which is

recognized by a reasonably prudent similar

p hysician as being acceptable under similar

conditions and circumstances. The board

shall give great weight to the provisions of

s. 766.102 when enforcing this

paragraph. . . . As used in this paragraph,

" gross malpractice " or " the failure to

practice me dicine 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, " shall not be construed

so as to require more than one instance,

event, or ac t. Nothing in this paragraph

shall be construed to require that a

physician be incompetent to practice

medicine in order to be disciplined pursuant

to this paragraph.

31. The Department alleges in Count I of the

Administrative Complaint that Dr. Figuer oa violated Subsection

458.331(1)(t), Florida Statutes, as follows:

a. Failed to recognize that Patient G.C.

was experiencing congestive heart failure on

or about November 14, 2000;

b. Failed to recognize that Patient G.C.

was experiencing obvious pulmon ary edema

with worsening congestive heart failure on

or about November 27, 2000;

c. Failed to immediately follow - up with

Patient G.C. following the adverse results

of his laboratory studies and chest x - ray;

d. Failed to immediately hospitalize

Patient G. C. on November 14, 2000, or

November 27, 2000;

e. Failed to recognize that Inderal was

contraindicated in the presence of pulmonary

edema.

32. The Department failed to establish that the diagnosis

and treatment plan for G.C. on November 14, 2000, fell below the

standard of care.

33. The Department did not establish by clear and

convincing evidence that G.C. was exhibiting sufficient signs of

pulmonary edema on November 27, 2000, to warrant a diagnosis of

pulmonary edema. While the testimony clearly i ndicates that

G.C. did exhibit some signs of pulmonary edema, the symptoms

were not sufficiently specific to make the diagnosis obvious.

Mr. Sellers ' examination of G.C. indicated rales in the bases of

the lungs, but the testimony indicated that a symptom of

pulmonary edema is moist rales and rhonchi in all the lung

fields. Furthermore, the fact that the hospital X - ray and the

emergency room physicians did not make a diagnosis of pulmonary

edema just hours after Dr. Figueroa and Mr. Sellers had examined

G .C. supports the conclusion that G.C. was not exhibiting

sufficient signs of obvious pulmonary edema when examined by

Dr. Figueroa and Mr. Sellers.

34. Since the Department failed to establish clear and

convincing evidence that G.C. was experiencing obvi ous pulmonary

edema on November 27, 2000, the Department has failed to provide

sufficient evidence that the use of Inderal was below the

standard of care. The weight of evidence indicated that Inderal

was an appropriate medication to treat hyperthyroid cr isis and

mild congestive heart failure.

35. The Department did establish by clear and convincing

evidence that Dr. Figueroa failed to recognize worsening

congestive heart failure on November 27, 2000. The chest X - ray

taken on November 17, 2000, indicate d a significant medical

condition, cardiomegaly. The blood studies indicated abnormal

liver function. These prior findings, viewed in conjunction

with the symptoms noted by Mr. Sellers on November 27, 2000,

should have caused a reasonably prudent similar physician to

conclude that G.C. had been suffering congestive heart failure

since at least November 14, 2000. The evidence clearly

demonstrates that G.C. ' s condition had significantly worsened by

November 27, 2000, and the condition was worse than mild

c ongestive heart failure.

36. The Department did not establish clear and convincing

evidence that the laboratory results received by Dr. Figueroa on

November 20, 2000, warranted immediate follow - up.

37. The Department did provide clear and convincing

evi dence that the November 17, 2000, chest X - ray indicate d a

serious medical condition that warranted emergent follow - up.

The record does not indicate any effort by Dr. Figueroa,

Mr. Sellers, or their staff to contact G.C. between November 22

and November 27 , 2000. The lack of effort to contact G.C.

during the five - day period fails to indicate even timely

notification.

38. The Department did not present sufficient evidence

that G.C. ' s condition required hospitalization on November 14,

2000. However, the D epartment did present clear and convincing

evidence that G.C. ' s condition required hospitalization on

November 27, 2000. If Mr. Sellers ' diagnosis of hyperthyroid

crisis had been correct, G.C. should have been hospitalized.

Additionally, G.C. presented c lear signs of worsening congestive

heart failure with moderate cardiomegaly. The proper treatment

for G.C. was hospitalization for intensive treatment and

intervention. Therefore, Dr. Figueroa deviated from the

standard of care by not hospitalizing G.C. on November 27, 2000.

39. The Department has establish ed by clear and convincing

evidence that Dr. Figueroa violated Subsection 458.331(1)(t),

Florida Statutes, by failing to practice medicine with that

level of care, skill, and treatment which is recogni zed by a

reasonably prudent similar physician as being acceptable under

similar conditions and circumstances.

40. The Department alleges in Count II of the

Administrative Complaint that Dr. Figueroa violated Subsection

458.331(1)(m), Florida Statutes, as follows:

a. Failed to document any consultation with

Mr. Sellers regarding Patient G.C. ' s

worsening condition;

b. Failed to justify why Patient G.C. was

not immediately hospitalized on November 14,

2000 or November 27, 2000 regardless of the

diagnosis o f hyperthyroid crisis or

congestive heart failure.

41. The Department failed to provide sufficient evidence

that Dr. Figueroa failed to document any consultation with

Mr. Sellers regarding G.C. ' s worsening condition. Testimony and

evidence indicated th at Dr. Figueroa did examine G.C. with

Mr. Sellers present. Dr. Figueroa indicated on the EKG that he

" agreed " and initialed the strip. Further, it was the normal

practice of Dr. Figueroa to sign the charts of Mr. Sellers from

the previous day on the foll owing morning. By the morning of

November 28, 2000, Dr. Figueroa was notified that G.C. had

expired. Dr. Figueroa did not sign the chart on November 28 in

an effort to comply with the requirements of his legal counsel.

42. The Department has provided c lear and convincing

evidence that Dr. Figueroa failed to justify why G.C. was not

hospitalized on November 27, 2000. The weight of the evidence

indicates that hyperthyroid crisis is a medical emergency that

warrants immediate hospitalization. Dr. Figuero a agreed with

the diagnosis and treatment plan of Mr. Sellers. However, no

documentation was recorded that explains why a patient diagnosed

with hyperthyroid crisis and congestive heart failure wa s being

treated as an out - patient rather than the accepted standard of

care , which is hospitalization.

43. Florida Administrative Code Rule 64B8 - 8.001(1)(t)

provides that the range of penalties for the first offense of a

violation of Subsection 458.331(1)(t), Florida Statutes, is from

two years ' probation to revo cation and an administrative fine

from $1,000 to $10,000.

44. Florida Administrative Code Rule 64B8 - 8.001(1)(m)

provides that the range of penalties for the first offense of a

violation of Subsection 458.331(1)(m), Florida Statutes, is from

a reprimand to two years ' suspension followed by probation and

an administrative fine from $1,000 to $10,000.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding that Dr.

Figueroa violat ed Subsections 458.331(1)(m) and 458.331(1)(t),

Florida Statutes; suspending his license to practice medicine

until he completes the Florida C.A.R.E.S. program or a

comparable physician skills assessment program to assess his

clinical skills; requiring com pliance with the program ' s

recommendations; placing him on two years ' probation with direct

supervision to be set by the Board of Medicine; and imposing an

administrative fine of $10,000.

DONE AND ENTERED this 1 3 th day of December , 2006 , 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 1 3 th of December, 2006 .

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes shall be to the 2000 version .

COPIES FURN ISHED :

Bruce D. Lamb, Esquire

Ruden, McClosky, Smith, Schuster

& Russell, P.A.

401 East Jackson Street, 27th Floor

Tampa, Florida 33602

Ephraim D. Livingston, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 326 5

Timothy M. Cerio, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Larry McPherson, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

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.