07-001039F Richard B. Edison, M.D. vs. Department Of Health, Board Of Medicine
 Status: Closed
DOAH Final Order on Monday, August 20, 2007.

View Dockets  





14Petitioner, )


17vs. ) Case No. 07-1039F





32Respondent. )



42I. Petitioner's Motion for Attorney's Fees

48Petitioner commenced this proceeding by filing a Motion for

57Attorney's Fees Pursuant to Sections 57.105, 57.111, and

65120.569, Florida Statutes (Motion for Attorney's Fees).

72Petitioner filed this motion in Department of Health v. Richard

82B. Edison, M.D. , DOAH Case No. 06-0598PL, which is described

92below. The Clerk of the Division of Administrative Hearings

101assigned the above-referenced case number to this request for

110attorneys' fees.

112Petitioner divides his arguments in the motion into two

121parts. The first part addresses Section 57.111, Florida

129Statutes, and the second part addresses Sections 57.105 and

138120.569, Florida Statutes. Pursuant to all three statutes,

146Petitioner seeks attorneys' fees and costs against Respondent

154and its counsel. (Petitioner refers to Respondent as the

"163Department of Health" and the "Department of Health, Board of

173Medicine," but, based on the acts and omissions of which

183Petitioner complains, it appears that the sole agency from which

193it seeks fees is the Department of Health.)

201Pursuant to all three statutes, Petitioner seeks fees and

210costs due to the initiation of two administrative proceedings,

219as defined in Section 57.111(4)(a), Florida Statutes, against

227Petitioner. On June 8, 2005, Respondent filed an Order of

237Emergency Restriction of License (ERO), and, on June 28, 2006,

247Respondent filed a four-count Administrative Complaint in DOH

255Case No. 2004-04940, which was designated as DOAH Case No.

26506-0598PL. The ERO and DOAH Case No. 06-0598PL are described in

276detail below.

278The motion states that the Final Order in DOAH Case No.

28906-0598PL found Petitioner not guilty of three of the four

299counts, including all standard-of-care claims alleged in the ERO

308and Administrative Complaint. The motion concludes that

315Petitioner was thus a prevailing party. The motion adds that

325Petitioner was a small business party, as defined in Section

33557.111(3)(d)1.c., Florida Statutes (2006), which requires only

342that a licensee's net worth not exceed $2 million at the time

354the agency initiates the proceeding.

359The motion contends that the proceeding was not

367substantially justified because the final order ruled that

375Respondent's position was contrary to Ortiz v. Department of

384Health, Board of Medicine , 882 So. 2d 402 (Fla. 4th DCA), rev.

396denied , 892 So. 2d 1011 (Fla. 2004), and Florida Administrative

406Code Rule 64B8-9.004(4)(b)4, both of which were in effect at all

417relevant times.

419A key element of Petitioner's contentions is that

427Respondent prosecuted him for various acts or omissions in

436connection with Level II surgery (or, in other words, Level II

447sedation). Paragraph 41 of the Administrative Complaint states:

"455The prohibition of a physician's use of Diprivan and the

465utilization of a registered nurse to assist in the

474administration of Diprivan and other anesthetic drugs in Level

483II office surgery was an essential premise of Petitioner's legal

493position in Ingram , and this action [i.e., DOAH Case No.


504As for Sections 57.105 and 120.569, Florida Statutes, the

513motion explains that Respondent opened two investigations of

521Petitioner: one under DOH Case No. 2004-04940, which is

530mentioned above, and one under DOH Case No. 2004-04945.

539Respondent opened the former case on February 13, 2004, and the

550latter case on February 26, 2004. The motion states that

560Respondent opened DOAH Case No. 2004-04940 to investigate an

569alleged violation of Section 458.331(1)(g), Florida Statutes,

576which is a failure to perform a statutory duty (i.e., failure to

588file an adverse incident report), and DOH Case No. 2004-04945 to

599investigate an alleged violation of Section 458.331(1)(t),

606Florida Statutes, which is the commission of medical


615The motion states that, on March 3, 2004, Respondent filed

625an Administrative Complaint against Dr. Alton Ingram and was

634represented by the same counsel who represented it in the case

645against Petitioner. Following a formal hearing and Recommended

653Order, the Board of Medicine issued a Final Order on

663December 22, 2004, allegedly rejecting Respondent's claim that

671an Advanced Cardiac Life Support (ACLS)-certified physician

678performing level II sedation in connection with office surgery

687was required to have in attendance a certified registered nurse

697anesthetist (CRNA) or physician anesthesiologist.

702The motion states that, on June 25, 2004, Respondent

711informed Petitioner that the probable-cause panel had been

719unable to find probable cause in DOAH Case No. 2004-04945, so

730Respondent was closing this standard-of-care case. (The reason

738for this action is explained below in the section that details

749the investigative file.) The motion states that, in December

7582004, Respondent informed Petitioner that it would soon present

767to the probable-cause panel the claim that Petitioner had failed

777to file an adverse incident report.

783The next event in the chronology recited in the motion is

794Respondent's filing, a year later, of the ERO, which is

804described in detail below. The motion asserts that the ERO

814contains the same type of standard-of-care allegations contained

822in the Ingram case. The motion states that, on June 16, 2005,

834Petitioner filed a petition for a writ of prohibition with the

845First District Court of Appeal, initiating Case No. 1D05-2583.

854The motion states that, on June 24, 2005, Respondent's

863counsel made the same legal argument that he advanced

872unsuccessfully in the Ingram case to request the probable-cause

881panel to issue an administrative complaint against Petitioner.

889The motion states that, three days later, Respondent filed the

899Administrative Complaint that commenced DOAH Case No. 06-0598PL,

907which is described in detail below.

913The motion states that the First District Court of Appeal

923denied Petitioner's request for relief, by order entered

931August 30, 2005.

934The motion states that, on May 15, 2006, during prehearing

944discovery, Respondent's expert witness, Dr. Edward G. deMiranda,

952testified that registered nurses--implicitly, not CRNAs--

958regularly administer Diprivan and assist in surgeries using

966Level II sedation throughout Florida. According to the motion,

975Dr. deMiranda added that the reports of professional personnel,

984as to whether a patient remained responsive to verbal stimuli,

994would suffice to determine if the sedation were Level II. The

1005motion states that, after this testimony, which was consistent

1014with the Ingram Final Order, Respondent nonetheless did not

1023withdraw its allegations or modify its legal position.

1031The motion adds that, on June 23, 2006, Petitioner's expert

1041witness, plastic surgeon Dr. Samuel B. Rosenthal, testified

1049identically to the above-cited testimony of Dr. deMiranda. The

1058motion states that, four days later, Petitioner's registered

1066nurse Michelle Hoff testified that the patient in question

1075remained responsive to verbal stimuli at all times and was

1085always at Level II sedation.

1090II. Respondent's Motion to Dismiss

1095On March 22, 2007, Respondent filed a Motion to Dismiss.

1105The motion first addresses Petitioner's claim for fees under

1114Section 57.111, Florida Statutes.

1118The motion contends that Petitioner is not a prevailing

1127party. Respondent states that the final order imposed

1135substantial restrictions upon Petitioner's ability to practice

1142medicine. The motion notes that Petitioner has appealed this

1151final order, but the appellate court has not issued its


1162The motion contends that Petitioner is not a small business

1172party. The motion relies on the Florida statutes in effect in

11832005, when Respondent filed the Administrative Complaint.

1190Section 57.111(3)(d), Florida Statutes (2005), defines a small

1198business party as a sole proprietor or a partnership or

1208corporation. The motion notes that Petitioner has alleged only

1217that he is an individual. The motion adds that the Legislature,

1228made substantive changes to Section 57.111 to take effect on

1238June 7, 2006, and these changes operate only prospectively.

1247Additionally, the motion states that Respondent filed the

1255Administrative Complaint against Petitioner individually, not as

1262a sole proprietor, a partner, or shareholder.

1269The motion also argues that Respondent had a reasonable

1278basis in fact and law, as of the time of finding probable cause,

1291to determine that a violation had occurred, and, thus, the

1301proceeding was substantially justified. Attached to the motion

1309is the investigative report and the transcript of the

1318proceedings of the probable-cause panel of June 24, 2005.

1327The motion generally challenges the affidavit filed by

1335Petitioner in support of his claim for attorneys' fees.

1344The motion also addresses the claims under Sections 57.105

1353and 120.569, Florida Statutes. Concerning the claims based on

1362the ERO, Respondent relies on the fact that it prevailed when

1373the First District Court of Appeal refused to set it aside.

1384The motion claims that a factual issue existed as to

1394whether the patient ever descended into Level III sedation.

1403Additionally, according to the motion, the nurse administering

1411anesthesia in Ortiz v. Department of Health , 882 So. 2d 442

1422(Fla. 4th DCA 2002), was a CRNA. Although Petitioner's

1431personnel consistently claimed that the patient remained

1438responsive and at Level II sedation, the motion argues that

1448Respondent had the right to contend for a contrary inference.

1458The motion claims that an award of attorneys' fees would be

1469unjust as it would chill Respondent in the discharge of its

1480duties to protect the public and ignore the fact that Respondent

1491obtained a good outcome by the imposition of substantial

1500restrictions on Petitioner's license.

1504The motion concludes that an evidentiary hearing is not


1514III. Subsequent Pleadings

1517On March 27, 2007, Petitioner filed a request for an

1527evidentiary hearing, pursuant to Section 57.111(4)(d), Florida


1535On April 3, 2007, Petitioner filed a response in opposition

1545to Respondent's Motion to Dismiss. The response notes that

1554Petitioner prevailed on three counts of the four-count

1562Administrative Complaint, and these were the counts that formed

1571the bases of the ERO. The response states that Petitioner

1581became a prevailing party only upon issuance of the final order,

1592which was after the effective date of the 2006 amendments to

1603Section 57.111(3)(d), Florida Statutes.

1607The response argues that the medical-records violations

1614were not the substantial bases of the ERO or the Administrative

1625Complaint, so, by losing on this count only, Petitioner was

1635nonetheless the prevailing party.

1639The response also contends that the transcript of the

1648probable cause panel's deliberations reveals that the panel was

1657aware that its rules allowed a physician to use a registered

1668nurse who is not a CRNA to administer Level II sedation.

1679On May 3, 2007, Respondent filed a supplement to its

1689response in opposition to the Motion to Dismiss. The

1698supplemental response adds that the ERO could not serve as a

1709basis of liability under Section 120.569(2)(e), Florida

1716Statutes, because it was never filed with the Division of

1726Administrative Hearings.

1728On May 7, 2007, Petitioner filed a response in opposition

1738to Respondent's supplemental response to the Motion to Dismiss.

1747This response notes that the First District Court of Appeal did

1758not rule on the merits of the ERO, but instead ruled that

1770Petitioner had an adequate remedy in the form of a formal

1781hearing on the allegations underlying the ERO.

1788On June 1, 2007, Petitioner filed copies of three appellate

1798decisions that he contends support his reliance on the 2006

1808amendments to Section 57.111(3)(d), Florida Statutes.

1814IV. Investigative File

1817Attached to Respondent's Motion to Dismiss is a copy of the

1828investigative file. The file pertains to DOH Case

1836No. 2004-04940. The investigative file contains a Closing Order

1845dated June 18, 2004, pertaining to DOH Case No. 2004-04945. The

1856Closing Order states that this file involved an alleged

1865standard-of-care violation and closes the file because it was

1874duplicative of DOH Case No. 2004-04940, which originally

1882involved an allegation of a failure to file an adverse incident

1893report, but evidently later substituted standard-of-care

1899allegations for the earlier allegation.

1904The investigative report contains two cover sheets. The

1912earlier cover sheet is dated March 18, 2004. The cover sheet

1923states that Respondent received the complaint on February 13,

19322004, so the investigation had been underway for four weeks up

1943to this point.

1946The investigative report notes that the medical examiner

1954had yet to issue a report containing the results of the

1965toxicology analysis. Thus, as of March 18, 2004, no one knew

1976that the patient had taken heroin, near-toxic doses of Demerol,

1986and methadone in the hours preceding her death. The report

1996noted a discussion between the medical examiner and Petitioner

2005concerning the possibility of liver failure as the cause of

2015death, but the discussion did not establish liver failure as a

2026cause of death.

2029The investigative report notes statements of Petitioner's

2036staff as to the difficulty of maintaining sufficient anesthesia

2045in the patient during surgery. According to the report, early

2055in the afternoon, the patient's daughter, who had undergone a

2065similar procedure, checked the dressing and found no unusual


2075The investigative report states that the daughter reported

2083that, immediately after her mother's death, Petitioner said to

2092her that her mother had undisclosed liver failure. But the

2102daughter reported that her mother had never had a liver problem

2113or exhibited a yellow color in her eyes.

2121The later cover sheet is dated July 30, 2004. This cover

2132sheet accompanies a copy of the finished autopsy report,

2141Petitioner's statement, and other materials. Petitioner's

2147statement indicates that the suggestion of undisclosed liver

2155disease was from the medical examiner, prior to his receipt of

2166the toxicology report. Petitioner's statement also mentioned

2173that another plastic surgeon, Dr. Samuel Rosenthal, had examined

2182all of Petitioner's records and concluded that he had not failed

2193to meet the applicable standard of care.

2200Included with the investigative report is a letter dated

2209April 1, 2004, from Dr. Marguerite Barnett, a plastic surgeon.

2219She notes that the surgery proceeded with Level II sedation,

2229evidently not agreeing with Dr. deMiranda that the drugs and

2239dosages administered by Petitioner and his nurse necessarily

2247resulted in Level III sedation. Dr. Barnett found, though, that

2257Petitioner failed to meet the applicable standard of care as

2267follows: 1) Petitioner proceeded with surgery prior to the

2276patient's attaining the targeted blood pressure set forth in the

2286clearance letter from her primary care physician; 2) "more

2295disturbing," Petitioner proceeded with surgery even though the

2303lab work revealed blood abnormalities and an elevated PT time,

2313which should have resulted in a consultation for liver disease;

23233) Petitioner never identified the appropriate plan of treatment

2332for the patient; 4) Petitioner inappropriately administered

2339Lorcet to the patient because the Tylenol that it contains is

2350contraindicated for a person with liver disease; and

23585) Petitioner allowed the administration of Diprivan in an

2367inappropriate, though not excessive, manner by allowing it to be

2377administered by drip.

2380Dr. Barnett concludes her letter as follows:

2387In summary, I was saddened and sickened by

2395this case involving a trusting patient and

2402well-trained surgeon. It is my opinion that

2409Dr. Edison fell below the standards of care

2417by failing to recognize the multiple medical

2424problems this patient had and by failing to

2432address these issues. . . . Dr. Edison's

2440inexplicable failure to address them more

2446likely than not resulted in the death of

2454this patient. I must use the term "more

2462likely than not" because I do not have

2470access to the autopsy report which would

2477reveal the cause of death beyond a

2484reasonable doubt. Dr. Edison's attorney

2489will not [sic] doubt try to argue that the

2498death would not have been preventable, but

2505no matter how I try to imagine the cause of

2515death, the surgery was a major or proximate

2523cause. If [the patient] died of

2529complications of hypertension, it was

2534preventable . If she died of pulmonary

2541embolus, the imprudent use of Vitamin K was

2549a contributing cause. If she died of

2556hemorrhage, the clotting abnormalities and

2561anemia were known pre-operatively. If she

2567died of liver failure, surgery was the

2574proximate cause . . . . Regardless of the

2583outcome in this case (death), Dr. Edison

2590failed to meet standards of care at such an

2599elementary level that he seems to be a

2607danger to the community. In so doing, he

2615brought dishonor to himself and his

2621profession and tragedy to a family.

2627Included with the investigative report is a letter dated

2636April 26, 2005, from Dr. deMiranda, a physician

2644anesthesiologist. The letter, which refers to the autopsy

2652findings of liver disease, indicates that Dr. deMiranda was

2661familiar with the contents of the finished autopsy report.

2670In his report, Dr. deMiranda notes that the patient

2679tolerated the surgical procedure "fairly well," although her

2687blood pressured topped out, postoperatively, at 206/112.

2694Dr. deMiranda firmly rejects the possibility that the surgery

2703proceeded with Level II sedation, rather than Level III

2712sedation, calling such a claim an "absurdity." Thus, he

2721reasons, Petitioner was not allowed to have the anesthesia

2730administered by a registered nurse. Dr. deMiranda adds: "The

2739fact that the surgeon is ACLS certified is not a passport for

2751having a person that is not an anesthesia care provider such as

2763a CRNA administer a constellation of drugs that can, and often

2774will, produce a Level III status, that is really a general

2785anesthetic." He expressed doubt that a patient receiving

2793Diprivan by infusion, fentanyl, and nitrous oxide could respond

2802to verbal stimulus, and he suggested that "many surgeons"

2811circumvent the limitations upon the use of registered nurses to

2821administer Level III-producing anesthesia by having their staff

2829falsify their intraoperative records to show that the patients

2838remain responsive to verbal commands.

2843Dr. deMiranda addressed nurse's comments that the patient

2851remained responsive to physical stimuli. He explained that it

2860is "difficult to ascertain whether [the patient] reached a Level

2870III from the anesthesia records," but response to painful

2879stimuli, as necessitated the administration of additional

2886anesthesia to the patient, could have been of a reflex nature.

2897Dr. deMiranda concluded that the administration of the pain

2906medications postoperatively (his wording prevents a clear

2913understanding of whether he also means to add, the

2922administration of the Diprivan and fentanyl intraoperatively)

2929resulted in hypoventilation, hypoxia, and ultimately cardiac

2936arrest, resulting in the death of the patient. Dr. deMiranda

2946makes no attempt to discuss the causes of death, such as heroin,

2958found by the medical examiner.

2963On the other hand, Dr. deMiranda notes that the slightly

2973elevated PT time was not "greatly significant," and no clinical

2983indications of liver disease existed to alert Petitioner to this

2993possibility, even though the autopsy finding of cirrhosis "may

3002imply" that the patient's ability to metabolize drugs was

3011impeded. Without any comment upon the half lives of any of the

3023medications--and no mention whatsoever of the heroin--

3030Dr. deMiranda opined that "the cumulative narcotic effect postop

3039. . . caused the patient's fatal outcome." He then concluded

3050that Petitioner failed to meet the applicable standard of care

3060by "administering an excessive amount of narcotics


3068Included with the investigative report is another letter

3076from Dr. Barnett, dated May 19, 2005. In contrast to

3086Dr. deMiranda, Dr. Barnett opined that the amount of medication

3096administered postoperatively while the patient remained at the

3104Cosmetic Surgery Center was not ordinarily excessive. But,

3112consistent with Dr. deMiranda, although more certain of the

3121causal relationship, Dr. Barnett stated that a patient with

3130liver disease would metabolize these drugs more slowly. She

3139extended the same analysis to the medications that Petitioner

3148prescribed for home use, especially the Tylenol, due to its

3158toxicity for persons with liver disease.

3164Clearly differing with Dr. deMiranda, though, Dr. Barnett

3172stated that, due to the coagulopathy (revealed by the slightly

3182elevated PT time), the patient's liver disease should have been

3192diagnosed and addressed prior to surgery. She states that,

"3201obviously," given the liver disease, the "medications were

3209contributory to death."

3212Lastly, the investigative file contains the transcript of

3220the probable-case panel's proceeding on June 24, 2005. At the

3230start of the consideration of Petitioner's case, the three

3239members of the probable-cause panel affirmed that they had read

3249the investigative file. An attorney for Respondent (not the

3258attorney against whom Petitioner seeks fees) then presented a

3267very brief summary of the facts of the case, which is DOH Case

3280No. 2004-04940. She mentioned the patient's interest in a

3289specific procedure. However, after the patient initially

3296presented at Petitioner's office with high blood pressure, he

3305referred her to her physician, who cleared her for surgery only

3316once her blood pressure was below 150/90. On the date of

3327surgery, the patient's blood pressure was 162/96, but Petitioner

3336proceeded with surgery, using local anesthesia with Level II

3345sedation. Petitioner had a registered nurse administer Diprivan

3353by drip, rather than continuous infusion. The patient was

3362discharged the next morning and, nine hours later, was in full

3373cardiac arrest, and she died.

3378After completing her summation, the attorney concluded that

3386these facts constituted violations of Section 458.331(1)(t),

3393(m), (q) and (w), Florida Statutes, and stated that the

3403Department of Health requested that the panel find probable


3413In the ensuing discussion, the assistant attorney general

3421advising the panel asked who administered the Diprivan, and a

3431panel member replied, a registered nurse, not a CRNA. The panel

3442member added: "This is an egregious case. We're going to be

3453talking revocation here." The assistant attorney general

3460replied, "Well, that's assuming we can discipline the doctor."

3469The panel chairman asked the assistant attorney general why he

3479thought they could not discipline the doctor, and the assistant

3489attorney general answered, "The Ortiz opinion." The first panel

3498member then stated, "It's still a (t) violation," and the

3508assistant attorney general agreed, "Yeah, it's still a (t)

3517violation." The chairman then stated, "I think it's a maximum

3527violation." He asked if there were a case pending against the

3538registered nurse, and the assistant attorney general said,

"3546that's where the Ortiz case comes in." The discussion

3555concluded with the chairman stating, "This was a clear violation

3565and this is also another preventable death. It's a very

3575unfortunate outcome." The motion to approve filing the four-

3584count complaint then passed unanimously.

3589V. ERO

3591The ERO is dated and filed on June 8, 2005--over two weeks

3603before the above-described proceeding of the probable-cause

3610panel. The ERO summarily imposes two restrictions upon

3618Petitioner's license to practice medicine. The restrictions

3625are: 1) except when performing Level I surgery (i.e., using

3635Level I sedation), Petitioner is required to have a CRNA or

3646physician anesthesiologist administer anesthesia in all

3652surgeries and 2) Petitioner is required to have unqualified

3661surgical clearance from each patient's primary care physician

3669prior to performing any surgery, and the clearance shall discuss

3679any abnormal issues identified in preoperative evaluations.

3686The 24-page ERO alleges that Petitioner violated three

3694statutes: Section 458.331(1)(t), which authorizes discipline

3700for the failure to practice in accordance with the applicable

3710standard of care; Section 458.331(1)(q), which authorizes

3717discipline for prescribing or administering a legend drug other

3726than in the course of the physician's practice; and Section

3736458.331(1)(m), which authorizes discipline for failing to keep

3744legible medical records justifying the course of treatment.

3752The facts recited by the ERO focus on Petitioner's care for

3763the same patient who is the subject of DOAH Case No. 06-0598PL.

3775The ERO notes that Petitioner's medical records from the initial

3785office visit omit any discussion of the patient's diagnosis of

3795high blood pressure. The ERO states that Petitioner ordered lab

3805studies, but his examination notes omit any mention of this

3815order. The ERO states that the lab studies revealed an abnormal

3826prothrombin time (PT time) and abnormal red blood cell count.

3836The ERO states that Petitioner prescribed, in advance of the

3846surgery, Lorcet 10, which is a Schedule III controlled substance

3856that relieves pain and contains acetaminophen, which is

3864contraindicated for patients with liver problems.

3870The ERO states that the patient presented to her primary

3880care physician prior to surgery for a medical clearance. The

3890ERO states that the physician, noting her blood pressure was

3900160/98, changed her blood pressure medications and cleared her

"3909once her BP is less than 150/90." The ERO notes that the

3921patient never reached this blood pressure prior to surgery.

3930Immediately prior to surgery, according to the ERO, the

3939patient's blood pressure was 162/96, and the medical records

3948note only that the patient was nervous, suggestive of an

3958explanation for the elevated blood pressure.

3964Paragraph 17 of the ERO states that, on January 15, 2004,

3975Petitioner performed an abdominoplasty with liposuction to the

3983waist under local anesthesia and "purported-Level II sedation."

3991After detailing the surgical record, which is described

3999immediately below, the ERO, at paragraph 29, asserts: "More

4008likely than not, [the patient] reached Level III sedation."

4017Reciting the opinion of Dr. deMiranda, the ERO states more

4027boldly, at Paragraph 65: ". . . based on the type and quantity

4040of drugs administered by Nurse Hoff, Dr. Edison performed a

4050Level III surgery. Dr. Edison did so without complying with

4060Rule 64B8-9.009(b)4, Florida Administrative Code."

4065The ERO states that the surgical record reveals only two

4075entries for intra-surgical blood pressure. First, at 9:55 a.m.,

4084an indication is that the blood pressure was rising, and Nurse

4095Hoff, who is not a CRNA, administered labetalol, as ordered by

4106Petitioner. Second, the nurse administered a dose of labetalol

4115at 9:45 a.m. But, according to the ERO, no record was made of

4128the actual blood pressure at those times--only that the

4137patient's blood pressure was 179/97 when transferred to the

4146recovery room, post-surgery. The ERO concludes that the record

4155demonstrates that Petitioner never controlled the patient's

4162blood pressure, as required by the surgical clearance.

4170The ERO states that, intra-operatively, Petitioner directed

4177Nurse Hoff to administer 2.5 mg of Versed, 1% Lidocaine with

4188Epinephrine 1/200,000, Diprivan, fentanyl, and nitrous oxide.

4196The ERO states that the "administration of Diprivan requires

4205controlled infusion and therefore syringe pumps or volumetric

4213pumps are recommended." The ERO asserts that Petitioner ordered

4222Nurse Hoff to administer the patient Diprivan by continuous

4231infusion by drip, rather than by controlled infusion. The ERO

4241states that the nurse did not properly document the amount of

4252Diprivan administered to the patient, the duration of the

4261infusion, the total dose administered, and whether a pump was

4271used. The ERO states that the nurse failed to document the

4282ability of the patient to respond purposefully to verbal

4291commands or tactile stimulation intra-operatively. The ERO

4298states that Petitioner failed to document the details of the

4308administration of the Diprivan. The ERO concludes: "More

4316likely than not, [the patient] reached Level III sedation."

4325The ERO recounts the drugs and doses administered to the

4335patient after transfer to the recovery room at 11:20 a.m. and

4346the overnight recovery room at 3:15 p.m. The ERO notes that the

4358patient was discharged to her daughter on January 16, 2004, at

4369about 8:00 a.m. The ERO states that, at about 9:00 a.m., the

4381daughter transported the patient to the patient's home, settled

4390her into bed, left her medications within reach, and departed to

4401go to the store. The ERO states that the daughter returned to

4413her mother's home, put some soup, crackers and water on the

4424bedside table, and left again at 11:00 a.m. When the daughter

4435returned at about 1:00 p.m., according to the ERO, she found her

4447mother so weak that she had to crawl to the door to let her

4461daughter into the home, but the daughter left again at 3:45 p.m.

4473The ERO states that, when the daughter returned at about 5:45

4484p.m., she found her mother unconscious on the floor. Forty-five

4494minutes later, the mother was declared dead at the hospital to

4505which she had been transported. The ERO states that an autopsy

4516found that the cause of death was a combined drug overdose of

4528heroin, temazepam, diazepam, methadone, meperidine, and

4534hydrocodone with contributory causes of hypertension, abdominal

4541wall hemorrhage, and cirrhosis of the liver.

4548The ERO states that, on April 1, 2004, Respondent's plastic

4558surgeon expert witness issued a report noting that the patient

4568never reached the targeted blood pressure prior to surgery and

4578proceeding to surgery violated the applicable standard of care.

4587The expert witness also objected to Petitioner's failure to

4596address the anemia revealed by the blood test, as anemia would

4607be a significant factor for someone undergoing elective surgery.

4616According to the ERO, the expert witness also noted that the

4627excessive PT time, indicative of slow coagulation of blood, was

4637suggestive of liver malfunction, which should have resulted in

4646further evaluation and treatment prior to surgery. The expert

4655witness, according to the ERO, suggested that Petitioner's

4663prescription of Vitamin K, preoperatively, reflected his concern

4671with the patient's clotting, but he unaccountability failed to

4680ask why this patient would have such an abnormality.

4689The same expert witness addressed Petitioner's decision to

4697allow Nurse Hoff to administer the anesthesia. She opined that

4707Petitioner fell below the applicable standard of care when he

4717allowed Nurse Hoff to deliver a Diprivan drip.

4725The ERO adds that the Board of Nursing issued, on March 5,

47372002, a Declaratory Statement that it is not within the scope of

4749practice for a registered nurse who is not a CRNA to administer

4761Diprivan, pursuant to oral or written order from an

4770anesthesiologist who remains in the room during the procedure.

4779The ERO then quotes the conclusion of its expert witness's

4789April 1, 2004, report:

4793In summary, I was saddened and sickened by

4801this case involving a trusting patient and

4808well-trained surgeon. It is my opinion that

4815Dr. Edison fell below the standard of care

4823by failing to recognize the multiple medical

4830problems this patient had and by failing to

4838address these issues. These problems were

4844not unknown or unseen. They were quite

4851plain but Dr. Edison's inexplicable failure

4857to address them more likely than not

4864resulted in the death of this patient. I

4872must use the term "more likely than not"

4880because I do not have access to the autopsy

4889report which would reveal the cause of death

4897beyond a reasonable doubt.

4901* * *

4904The pre-operative work-up of a patient is

4911taught in any introductory surgical

4916textbook. . . . It is surgery 101.

4924Regardless of the outcome in this case

4931(death), Dr. Edison failed to meet the

4938standards of care at such an elementary

4945level that he seems to be a danger to the


4956The ERO states that, on May 17, 2005, Respondent asked this

4967expert witness to reevaluate the case after reading the medical

4977examiner's report, which is cited above. After doing so, on

4987May 19, 2005, the expert witness responded:

4994The amount of medication prescribed for

5000administration in the recovery room and the

5007overnight room [as well as for home use]

5015would not have ordinarily been excessive,

5021but any patient with liver disease would be

5029expected to metabolize such drugs more

5035slowly than usual. In view of the fact that

5044there was documented coagulopathy

5048preoperatively, the patient's liver disease

5053should have been diagnosed and addressed

5059before surgery. Obviously, in the setting

5065of liver disease, the medications were

5071contributory to death.

5074* * *

5077In view of the multiple gross acts of

5085malpractice on the part of Dr. Edison in

5093this case . . . I believe this doctor's

5102practice represents a danger to the public.

5109I would feel less frightened by Dr. Edison

5117if he would admit to his errors which led to

5127this avoidable death.

5130The ERO states that, on April 26, 2005, Respondent's

5139anesthesiology expert witness issued a report concluding that

5147Respondent did not meet the applicable standard of care. This

5157expert witness stated:

5160Subject did not meet the applicable standard

5167of care in this case by allowing the

5175anesthetic drugs and 60% nitrous oxide to be

5183administered by an R.N. It is ludicrous to

5191state that the case was done at "Level II"

5200when the patient not only received Diprivan

5207by infusion, but also fentanyl 450 mcg and

521560% nitrous oxide throughout. To pretend

5221that a person receiving this combination of

5228drugs can be easily aroused (as supposed to

5236be at Level II), and respond to commands, is

5245an absurdity. This would definitely not be

5252a "Level II sedation." The patient can

5259respond to painful stimuli and yet be

5266obtunded enough that they will not maintain

5273a level of consciousness enough to

5279communicate verbally.

5281This expert witness noted that Petitioner improperly

5288classified the patient as ASA I status preoperatively when she

5298was ASA II status due to her hypertension and abnormal blood

5309tests. An ASA I patient is a normal healthy patient, and an ASA

5322II patient is a patient with mild symptomatic disease.

5331As to the propriety of Petitioner's allowing an RN to

5341administer Diprivan, this expert witness stated:

5347The fact that the surgeon is ACLS certified

5355is not a passport for having a person that

5364is not an anesthesia care provider such as a

5373CRNA administer a constellation of drugs

5379that can, and very often will, produce a

5387Level III status, that is really a general

5395anesthetic. It has been the position of the

5403Board of Nursing in the state of Florida

5411that the administration of certain drugs in

5418particular, Diprivan, does not fall within

5424the scope of the practice of nursing. Many

5432surgeons circumvent this situation by having

5438the R.N. that is administering the

5444anesthetic make periodic entries denoting

"5449patient response to verbal stimuli" or

"5455patient response to verbal command." That

5461a person receiving a combination of Diprivan

5468by infusion, (a strong sedative capable of

5475producing a total loss of consciousness),

5481fentanyl, (a strong synthetic opiate), and

5487nitrous oxide, (an anesthetic gas), can

5493respond to verbal stimulus is seriously

5499doubtful to say the least.

5504The ERO cites Florida Administrative Code Rule

551164B8-9.009(6), which describes Level III office surgery, which

5519requires a CRNA or physician anesthesiologist. The ERO

5527concludes, based on the report of its anesthesiologist, that

5536Petitioner performed Level III surgery in violation of Rule

554564B8-9.009(6). The ERO cites the conclusion of its

5553anesthesiologist's report:

5555[W]hile the intraoperative anesthetic was

5560uneventful it is the cumulative effect

5566postop that caused this patient's fatal

5572outcome. It is felt the subject failed to

5580meet the applicable standard of care by

5587administering an excessive amount of

5592narcotics postoperatively.

5594The ERO alleges that Petitioner violated Section

5601458.331(1)(m), Florida Statutes, because he failed to document

5609the information that the patient's blood pressure was over

5618150/90 prior to surgery and the rate of infusion of Diprivan;

5629Section 458.331(1)(q), Florida Statutes, because he prescribed

5636excessive narcotics to the patient; and Section 458.331(1)(t),

5644Florida Statutes, because he failed to adhere to the applicable

5654standard of care by performing elective surgery prior to the

5664patient's blood pressure had been brought under control,

5672delegating to a registered nurse the authority to administer

"5681Diprivan, Ketamine and/or Versed" when the standard of care

5690requires the presence of a CRNA or physician anesthesiologist,

5699and performing elective surgery prior to investigating and

5707addressing the issues raised by the preoperative blood tests.

5716The ERO cites Section 120.60(6), Florida Statutes, as

5724authority for the summary license restrictions. Section

5731120.60(6)(c), Florida Statutes, requires Respondent to "promptly

5738institute. . . and act. . . upon" a "suspension or revocation

5750proceeding," pursuant to Sections 120.569 and 120.57, Florida

5758Statutes. Accordingly, the ERO concludes: "A proceeding

5765seeking formal restriction or discipline of the license of

5774[Petitioner] will be promptly instituted and acted upon in

5783compliance with Section 120.569 and 120.60(6), Florida


5791VI. DOAH Case No. 06-0598PL

5796A. Preliminary Matters

5799On June 28, 2005, Petitioner filed a four-count

5807administrative complaint dated June 27, 2005. Petitioner served

5815a request for hearing on August 2, 2005, and, on February 16,

58272006, Respondent transmitted the file to the Division of

5836Administrative Hearings, which designated the case as Department

5844of Health v. Richard B. Edison, M.D. , DOAH Case No. 06-0598PL.

5855Paragraph 12 of the Administrative Complaint states that

5863Petitioner "performed an abdominoplasty (tummy tuck) with

5870liposuction of the waist area on [the patient], under local

5880anesthesia with Level II sedation. Paragraph 28 of the

5889Administrative Complaint states: "According to the type of

5897medication and quantity of medication administered to [the

5905patient], this was a Level III surgery." The structure of these

5916preliminary allegations is essentially chronological. In

5922context, the meaning of these apparently contradictory

5929allegations is that Petitioner planned to perform these surgical

5938procedures with Level II sedation, but--largely due to the

5947administration of Diprivan by continuous infusion drip--the

5954patient descended into Level III sedation. This interpretation

5962is consistent with the above-described allegation in the ERO of

"5972purported Level II sedation." Paragraph 18 adds that Nurse

5981Hoff "failed to adequately document the ability of the patient

5991to respond purposefully to verbal commands and/or tactile

5999stimulation during surgery."

6002Count I alleges that Petitioner violated Section

6009458.331(1)(t), Florida Statutes, in five respects. The

6016Administrative Complaint alleges that Petitioner ordered the

6023administration of Diprivan by continuous drip, along with other

6032anesthesia medications, without utilizing a CRNA or physician

6040anesthesiologist; performed elective surgery on the subject

6047patient before controlling her hypertension or waiting for her

6056blood pressure reading to reach an acceptable level as opined by

6067her general practitioner; failed to perform further evaluations,

6075tests or treatment prior to surgery after reviewing abnormal

6084blood and/or PT time test results; failed to obtain a

6094consultation for the abnormal PT time test results; and

6103administered Lorcet, which contains Tylenol, even though Tylenol

6111is contraindicated for patients with liver problems.

6118Count II alleges Petitioner violated Section 458.331(1)(m),

6125Florida Statutes, in three respects. The Administrative

6132Complaint alleges that Petitioner failed to justify the course

6141of the patient's treatment by failing to document whether she

6151had reached the targeted blood pressure prior to the surgery,

6161why Petitioner had administered Vitamin K before surgery, and

6170appropriate plans concerning prior lab studies.

6176Count III alleges that Petitioner violated Section

6183458.331(1)(q), Florida Statutes, by administering Diprivan

6189excessively or inappropriately by continuous drip, along with

6197other anesthesia drugs, in the absence of a CRNA or physician

6208anesthesiologist. The Administrative Complaint alleges that it

6215is presumed that a physician prescribes or administers a legend

6225drug other than in the course of his professional practice when

6236he prescribes or administers the drug in excessive or

6245inappropriate quantities, without regard to his intent.

6252Count IV alleges that Petitioner violated Section

6259458.331(1)(w), Florida Statutes, by delegating professional

6265duties to a person whom he knew, or had reason to know, was

6278unqualified to perform them. The Administrative Complaint

6285alleges that Petitioner delegated the administration of

6292sedatives or anesthetic agents, including Diprivan, to a

6300registered nurse, who he knew or had reason to know was not

6312licensed as a CRNA.

6316The undersigned Administrative Law Judge conducted an

6323formal hearing on July 25-26, 2006, and issued a Recommended

6333Order on August 25, 2006.

6338B. Recommended Order

63411. Introduction

6343This order incorporates by reference the findings and

6351conclusions contained in the Recommended Order because, as noted

6360below, the Final Order essentially adopted all of them. For

6370ease of reference, this section highlights selected facts.

6378Petitioner is a licensed physician in Florida who has

6387practiced cosmetic surgery for 22 years. He is certified in

6397plastic surgery by the American Board of Plastic Surgery and in

6408ACLS. Petitioner's only previous discipline was a consent order

6417dated September 1, 1995, involving a claim that he left a sponge

6429in a breast on which he had performed an augmentation procedure.

6440Although Petitioner did not admit the allegations, he agreed to

6450pay a $2000 fine and attend ten hours of continuing medical


6462Petitioner owns and operates at the Cosmetic Surgery

6470Center, which is a 5000-square-foot facility in Ft. Lauderdale.

6479Prior to the issuance of the ERO, Petitioner employed a CRNA

6490only as needed, but not routinely during surgery involving Level

6500II sedation. In Level II sedation, the patient is conscious,

6510but tranquil, and responsive to painful stimulus or verbal

6519command. In Level III sedation, the patient is unconscious and


6530On January 15, 2004, Petitioner performed an abdominoplasty

6538with liposuction to the waist area of a 50-year-old female

6548patient. With the assistance of Nurse Hoff, Petitioner

6556administered the following sedatives and anesthetics:

6562lidocaine, Diprivan (by drip), Versed, fentanyl, and nitrous

6570oxide. After remaining overnight at the Cosmetic Surgery

6578Center, the patient was released to her home where she died late

6590in the afternoon of the day following the surgery.

65992. Causes of Death of Patient

6605According to the toxicology report and autopsy, the patient

6614died due to the ingestion of heroin, methadone, and near-toxic

6624amounts of Demerol. These sources list the other causes of

6634death as hypertension, abdominal wall hemorrhage, and cirrhosis.

6642The allegations do not explicitly assert that Petitioner

6650caused the patient's death, nor should any such link be

6660inferred. The evidence never isolated the specific chronology

6668of events that led to the patient's death on the afternoon

6679following the surgery. What is clear is that the heroin,

6689methadone, and all or nearly all of the Demerol that she

6700ingested were from sources other than Petitioner and that she

6710ingested them without Petitioner's knowledge. The evidence did

6718not establish that the abdominal wall hemorrhage, which was at

6728the site of the operation on the prior day, was in any way due

6742to the negligence of Petitioner. The most likely inference on

6752this record was that the hemorrhage resulted from a fall to the

6764floor or perhaps convulsions.

6768The evidence also did not establish that any of the

6778medications administered to the patient the prior day by or

6788under the direction of Petitioner caused her death.

6796Undoubtedly, the fentanyl and Diprivan were eliminated well

6804before the patient's death, given their very short half-lives

6813and the absence of any findings of these drugs by the

6824toxicologist. On the other hand, the short half-life of the

6834indicator of heroin, and the finding of this substance by the

6845toxicologist, establishes that the patient took heroin very

6853shortly before her death and supports an inference of the

6863prominence of heroin among the factors causing the patient's


6873Preoperatively, Petitioner prescribed Lorcet, which

6878contains hydrocodone, and Restoril, which contains temazepam.

6885These drugs, which have half lives of less than nine and 12

6897hours, respectively, were found by the toxicologist. It is

6906impossible to assign much of a role to these drugs, on the

6918present record, especially given the near-toxic doses found by

6927the toxicologist of Demerol--clearly from sources other than

6935Petitioner. The record did not develop the synergistic effect

6944of heroin, near-toxic doses of Demerol, and methadone, but these

6954intervening medications and the duration between the last

6962administration of medications by or under the direction of

6971Petitioner and the relevant half-lives of these drugs suggest

6980that the heroin, Demerol, and methadone were more likely agents

6990of the death of the patient than the drugs administered or

7001prescribed by Petitioner.

7004Nor did the record support a finding that the patient's

7014underlying liver disease caused her death. Preoperatively, the

7022patient presented with no signs of jaundice or edema. Her prior

7033anemia had been resolved, and she had no history of liver

7044disease. She voiced no complaints suggestive of liver disease.

7053The fact that the patient's primary care physician had treated

7063her successfully for anemia suggested ongoing vigilance on his

7072part for possible liver problems, which he had not detected. If

7083undiagnosed cirrhosis were impeding the patient's elimination of

7091drugs, this condition did not emerge during the surgery, when

7101she required additional medication to maintain a Level II state

7111of sedation.

7113For the same reason, Petitioner's prescription of Tylenol,

7121which is contraindicated in the presence of liver disease, was

7131not negligent. In any event, the record fails to assign acute

7142liver failure as the direct agent of death, nor does it support

7154the presence of Tylenol, as distinguished from the myriad of

7164other drugs taken by the patient, as the direct agent of any

7176acute liver failure, if such a condition had been found.

7186Lastly, the patient's high blood pressure, which Petitioner

7194managed effectively during and after the surgery, did not

7203directly result in her death.

72083. Facts Related to Administration of Diprivan

7215by Non-CRNA

7217The issue involving the propriety of using a registered

7226nurse, rather than a CRNA or physician anesthesiologist, to

7235administer a Diprivan drip is the basis of the first alleged

7246standard-of-care violation in Count I and Counts III and IV.

7256This is best addressed below because only two of the direct

7267facts underlying this issue were in serious dispute. The

7276patient was never at Level III sedation during the procedure,

7286and, if Respondent intended to prove that the medications

7295administered by Petitioner to the patient were likely to produce

7305Level III sedation, it failed to do so.

73134. Facts Related to Patient's Blood Pressure

7320The issue of performing the surgery without complying with

7329the blood-pressure criterion identified by the primary care

7337physician is the basis of the second alleged standard-of-care

7346violation in Count I and the first medical-records violation in

7356Count II (i.e., the failure to document whether the patient met

7367this criterion).

7369The standard-of-care allegation failed because Petitioner

7375referred the patient to the primary-care physician to control

7384her blood pressure, not for a medical clearance; the primary-

7394care physician addressed the patient's hypertension by changing

7402her medications; nothing in the record established that the

7411primary-care physician could substitute his professional

7417judgment for that of Petitioner in setting a precondition for

7427surgery in the form of a blood-pressure threshold; and

7436Petitioner's demonstrated ability to manage the patient's blood

7444pressure, intra- and post-operatively, confirmed that he had

7452properly decided that he could safely proceed with surgery

7461despite persistently high blood pressure values, which he

7469attributed to anxiety.

7472The medical-records allegation was proved by Petitioner's

7479failure to document the analysis that he underwent in deciding

7489to proceed with surgery despite relatively high blood pressure

7498values immediately prior to surgery. In finding this allegation

7507to have been proved, the Administrative Law Judge construed the

7517allegation that Petitioner had failed to document whether the

7526patient had reached the blood pressure specified by her primary-

7536care physician in conjunction with the allegation that

7544Petitioner had failed to document appropriate plans based on

7553prior lab studies. Considered together, the allegations raise

7561the issue of whether Petitioner failed to document his analysis

7571that justified his decision to proceed with surgery despite

7580relatively high blood pressure values.

75855. Facts Related to Patient's PT Time

7592The issue of performing surgery without evaluating the

7600excessive PT time is one of the bases of the third alleged

7612standard-of-care violation in Count I and the third alleged

7621medical-records violation in Count II and the basis of the

7631fourth alleged standard-of-care violation in Count I and the

7640second medical-records violation in Count II.

7646The standard-of-care allegations failed because the same

7653lab work revealed a normal International Normalization Ratio

7661(INR) and partial thromboplastin time, and the INR is the most

7672reliable of these tests; the PT time was very slightly elevated;

7683the patient presented without jaundice or edema; the patient

7692reported no history of clotting problems, bleeding, or even

7701bruising; and the patient suffered no clotting problems intra-

7710or post-operatively, aside from the abdominal wall hemorrhage,

7718which was likely due to the extraordinary force of a fall or

7730convulsions or both.

7733The second and third medical-records allegations were

7740proved because Petitioner never documented why he prescribed

7748Vitamin K preoperatively--i.e., routinely to patients with

7755borderline clotting studies in order to reduce bruising and

7764swelling and ensure greater patient satisfaction--and his plan

7772for addressing the abnormal PT time. Although his analysis in

7782both respects was satisfactory, and proved correct, he failed to

7792document this analysis to ensure quality and continuity of care.

78026. Facts Related to Patient's Blood Abnormalities

7809The issue of the abnormalities in the blood work is one of

7821the bases of the third alleged standard-of-care violation in

7830Count I and one of the bases of the third alleged medical-

7842records violation in Count II. The blood abnormalities were not

7852shown to have been substantial, so they did not yield a

7863standard-of-care violation or even a medical-records violation.

78707. Facts Related to Administration of Tylenol

7877The issue of the administration of Tylenol to a patient

7887with liver disease is the basis of the fifth alleged standard-

7898of-care violation in Count I. This standard-of-care allegation

7906failed because nothing in the record would reasonably have

7915suggested to Petitioner that the patient had cirrhosis, and

7924there is considerable doubt whether the cirrhosis found in the

7934autopsy was of such severity so as to have contributed to any

7946functional impairment.

79488. Recommended Penalties

7951The Recommended Order recommends that the Board of Medicine

7960find Petitioner guilty only of a medical-records violation, fine

7969him $10,000, impose 30 days' suspension, impose two-years'

7978probation, and require him to attend continuing education on

7987medical records.

7989C. Final Order

7992The Board of Medicine issued the Final Order on January 4,

80032007, in which it adopted the findings of facts and conclusions

8014of law in the recommended order with only one alteration--

8024recharacterizing findings as to the applicable standard of care

8033as conclusions of law. The final order imposes the recommended

8043penalties, except that it stays the suspension and imposes costs

8053of $15,696.37, which is one-quarter of the actual costs because,

8064the Final Order reasons, Respondent prevailed on one of four


8075The Final Order denies several exceptions of Respondent.

8083One exception was to paragraph 67 of the Recommended Order,

8093which reads:

8095Count I alleges that Respondent departed

8101from the applicable standard of care. One

8108basis for this allegation is that he

8115administered or caused the administration of

8121Diprivan without a CRNA. In this

8127allegation, Petitioner relies on the Final

8133Order in Department of Health v. Alton Earl

8141Ingram, M.D. , DOAH Case Nos. 04-0709PL and

814804-0901PL. These cases are distinguishable

8153in one important respect: both patients in

8160Ingram clearly slipped into Level III

8166sedation during their operations, as they

8172were not responsive to verbal and tactile

8179stimuli during parts of their surgeries. In

8186one case, the patient's oxygen saturation

8192rate dropped to 78 percent, and, in the

8200other case, the patient's oxygen saturation

8206rate was not measurable, under circumstances

8212that permit no inference but that the

8219patient slipped into Level III sedation.

8225Nor does the Ingram Final Order take issue

8233to the following statement in the

8239Recommended Order adopted by the Final

8245Order: "Diprivan, when properly controlled,

8250can be used to achieve Level II anesthesia."

8258(Recommended Order, page 17.)

8262The Final Order explains that the denial is "because the

8272position taken by the Department was contrary to [Florida

8281Administrative Code Rule] 64B8-9.009(4)(b)4 . . . and the ruling

8291in Ortiz v. Department of Health, Board of Medicine , 882 So. 2d

8303402 (Fla. 4th DCA 2004)." The Final Order adds the same

8314explanation for denying the exception to paragraph 72 of the

8324Recommended Order, which concludes that Respondent failed to

8332prove that Petitioner had improperly delegated duties to a

8341registered nurse who was not a CRNA.

8348The Final Order explains that the denial of an exception to

8359paragraph 69 of the Recommended order, which states that

8368Respondent failed to prove the remaining standard-of-care

8375allegations, is because--presumably, in part--the Board of

8382Medicine agreed that Petitioner's decision to proceed despite

8390relatively high blood pressure values was "within his own

8399professional discretion."

8401The Final Order notes that Respondent withdrew its

8409exception to paragraph 68 of the Recommended Order, which


8419During her surgery, [the patient] never

8425slipped below Level II sedation. Respondent

8431was ACLS certified, so he was permitted by

8439rule to employ a registered nurse as his

8447required assistant, rather than a CRNA. It

8454is well-established that penal statutes are

8460construed in favor of licensees. See , e.g. ,

8467Djokic v. Department of Business and

8473Professional Regulation , 875 So. 2d 693, 695

8480(Fla. 4th DCA 2004). The facts of this case

8489do not support the effort by Petitioner to

8497prohibit, by order rather than rule, the

8504skilled use of Diprivan in office surgery

8511using Level II sedation.

8515Petitioner has appealed the Final Order to the Fourth

8524District Court of Appeal, Case No. 4D07-295, presumably

8532challenging the conclusion that he violated the medical-records

8540statute, the penalty imposed for the violation, the summary

8549imposition of costs, or some combination of these three issues.

8559It is unknown if Respondent has filed a cross-appeal. The

8569District Court has stayed, pending the outcome of the appeal,

8579the portion of the final order imposing probation. Petitioner

8588filed his reply brief on July 28, 2007.

8596VII. Applicable Law

8599A. Section 57.111 Claim

8603Section 57.111(4), Florida Statutes, provides:

8608an award of attorney's fees and costs shall

8616be made to a prevailing small business party

8624in any adjudicatory proceeding or

8629administrative proceeding pursuant to

8633chapter 120 initiated by a state agency,

8640unless the actions of the agency were

8647substantially justified or special

8651circumstances exist which would make the

8657award unjust.

8659No extensive analysis of this statute is necessary in this

8669case. Petitioner is not a small business party under this

8679statute. In its present form, Section 57.111(3)(d)1., Florida

8687Statutes, includes Petitioner (assuming that he meets the net-

8696worth limitation), as it defines a small business party as

8706certain sole proprietors, certain partnerships or corporations,


8714c. An individual whose net worth did not

8722exceed $2 million at the time the action is

8731initiated by a state agency when the action

8739is brought against that individual's license

8745to engage in the practice or operation of a

8754business, profession, or trade[.]

8758But Section 57.111(3)(d)1.c, Florida Statutes, took effect

8765on July 1, 2006. Laws of Florida, Ch. 2006-82, Sections 2 and

877711. Prior to amendment, Section 57.111(3), Florida Statutes,

8785did not extend to individuals (or natural persons). Daniels v.

8795Department of Health , 898 So. 2d 61 (Fla. 2005).

8804Petitioner argues that its claim did not accrue until the

8814final order was issued, which was after July 1, 2006. This is

8826true. However, the filings of which Petitioner complains were

8835filed prior to July 1, 2006, and, from Respondent's perspective,

8845the application of the new statute to these filings would

8855constitute the retroactive application of a statute.

8862Changes in statutes awarding attorneys' fees are

8869substantive, not remedial, so, absent explicit legislative

8876direction to apply them retroactively, they apply only

8884prospectively. L. Ross, Inc. v. R. W. Roberts Construction Co. ,

8894481 So. 2d 484 (Fla. 1986). See also Mullins v. Kennelly , 847

8906So. 2d 1151, 1154 (Fla. 5th DCA 2003) (citing Love v. Jacobson ,

8918390 So. 2d 782 (Fla. 3d DCA 1980)). Thus, the statute in effect

8931at the time of the filing of the ERO and Administrative

8942Complaint governs Respondent's liability for attorneys' fees, so

8950Petitioner cannot rely on Section 57.111(4), Florida Statutes.

8958B. Section 57.105 Claim

8962Section 57.105, Florida Statutes, provides:

8967(1) Upon the court's initiative or motion

8974of any party, the court shall award a

8982reasonable attorney's fee to be paid to the

8990prevailing party in equal amounts by the

8997losing party and the losing party's attorney

9004on any claim or defense at any time during a

9014civil proceeding or action in which the

9021court finds that the losing party or the

9029losing party's attorney knew or should have

9036known that a claim or defense when initially

9044presented to the court or at any time before


9054(a) Was not supported by the material

9061facts necessary to establish the claim or

9068defense; or

9070(b) Would not be supported by the

9077application of then-existing law to those

9083material facts.

9085However, the losing party's attorney is not

9092personally responsible if he or she has

9099acted in good faith, based on the

9106representations of his or her client as to

9114the existence of those material facts. If

9121the court awards attorney's fees to a

9128claimant pursuant to this subsection, the

9134court shall also award prejudgment interest.

9140(2) Paragraph (1)(b) does not apply if the

9148court determines that the claim or defense

9155was initially presented to the court as a

9163good faith argument for the extension,

9169modification, or reversal of existing law or

9176the establishment of new law, as it applied

9184to the material facts, with a reasonable

9191expectation of success.

9194(3) At any time in any civil proceeding or

9203action in which the moving party proves by a

9212preponderance of the evidence that any

9218action taken by the opposing party,

9224including, but not limited to, the filing of

9232any pleading or part thereof, the assertion

9239of or response to any discovery demand, the

9247assertion of any claim or defense, or the

9255response to any request by any other party,

9263was taken primarily for the purpose of

9270unreasonable delay, the court shall award

9276damages to the moving party for its

9283reasonable expenses incurred in obtaining

9288the order, which may include attorney's

9294fees, and other loss resulting from the

9301improper delay.

9303(4) A motion by a party seeking sanctions

9311under this section must be served but may

9319not be filed with or presented to the court

9328unless, within 21 days after service of the

9336motion, the challenged paper, claim,

9341defense, contention, allegation, or denial

9346is not withdrawn or appropriately corrected.

9352(5) In administrative proceedings under

9357chapter 120, an administrative law judge

9363shall award a reasonable attorney's fee and

9370damages to be paid to the prevailing party

9378in equal amounts by the losing party and a

9387losing party's attorney or qualified

9392representative in the same manner and upon

9399the same basis as provided in subsections

9406(1)-(4). Such award shall be a final order

9414subject to judicial review pursuant to s.

9421120.68. If the losing party is an agency as

9430defined in s. 120.52(1), the award to the

9438prevailing party shall be against and paid

9445by the agency. A voluntary dismissal by a

9453nonprevailing party does not divest the

9459administrative law judge of jurisdiction to

9465make the award described in this subsection.

9472(6) The provisions of this section are

9479supplemental to other sanctions or remedies

9485available under law or under court rules.

9492* * *

9495Petitioner similarly has failed to meet one of the

9504requirements of Section 57.105. Petitioner served the Motion

9512for Attorney's Fees by overnight courier on March 1, 2007.

9522Petitioner evidently sent the motion to the Division of

9531Administrative Hearings for filing by the same means, as it was

9542filed on March 2, 2007. Section 57.105(4), Florida Statutes,

9551which has been in effect at all relevant times during this and

9563the underlying proceedings, specifies that the party seeking

9571fees must serve the motion without filing it, wait 21 days to

9583see if the opposing party withdraws the offending claim, and,

9593only if the offending claim is not withdrawn within that time,

9604file the motion seeking fees. Section 57.105(5), Florida

9612Statutes, which authorizes an Administrative Law Judge to award

9621fees, requires compliance with, among other provisions, Section


9630Statutes providing for attorneys' fees are in derogation of

9639the common law, so courts construe them strictly against the

9649party relying on such statutes to obtain fees. Willis Shaw

9659Express, Inc., v. Hilyer Sod, Inc. , 849 So. 2d 276, 278 (Fla.

96712003); Agency for Health Care Administration v. HHCI Limited

9680Partnership , 865 So. 2d 593, 595 (Fla. 1st DCA 2004).

9690In Burgos v. Burgos , 948 So. 2d 918 (Fla. 4th DCA 2007),

9702the court reversed a trial court's order awarding attorneys'

9711fees under Section 57.105, Florida Statutes, when the party

9720seeking fees had not complied with Section 57.105(4). The party

9730seeking fees had noticed the case for trial on the issues raised

9742by the opposing parties and attorneys' fees under Section

975157.105, but the appellate court did not equate this act with

9762compliance with the clear procedure set forth in Section

977157.105(4). The court approved of the effect of Section

978057.105(4), which requires the parties to police themselves, by

9789giving the offending party one last clear chance to withdraw the

9800frivolous claim or defense, instead of requiring judicial

9808intervention. 948 So. 2d at 919.

9814A similar result is found in O'Daniel v. Board of

9824Commissioners , 916 So. 2d 40 (Fla. 3d DCA 2005). In this case,

9836the parties seeking attorneys' fees under Section 57.105,

9844Florida Statutes, filed their motion after a trial on the

9854merits. Finding that the timing of the filing of the motion

9865prevented the offending party from retracting or amending its

9874defenses, the court affirmed the trial court's order striking

9883the motion.

9885Neither the statute nor the judicial decisions provide any

9894basis for setting aside the requirement of Section 57.105(4) on

9904the basis that it was unlikely that, if presented with the

9915motion, Respondent would have dismissed its offending claims.

9923The statute requires Petitioner to give Respondent a last clear

9933chance--prior to the evidentiary hearing--to retract or amend

9941its offending claims and Petitioner failed to do so, so he

9952cannot rely on Section 57.105(5), Florida Statutes.

9959C. Section 120.569 Claim

9963Section 120.569(2)(e), Florida Statutes, provides:

9968All pleadings, motions, or other papers

9974filed in the proceeding must be signed by

9982the party, the party's attorney, or the

9989party's qualified representative. The

9993signature constitutes a certificate that the

9999person has read the pleading, motion, or

10006other paper and that, based upon reasonable

10013inquiry, it is not interposed for any

10020improper purposes, such as to harass or to

10028cause unnecessary delay, or for frivolous

10034purpose or needless increase in the cost of

10042litigation. If a pleading, motion, or other

10049paper is signed in violation of these

10056requirements, the presiding officer shall

10061impose upon the person who signed it, the

10069represented party, or both, an appropriate

10075sanction, which may include an order to pay

10083the other party or parties the amount of

10091reasonable expenses incurred because of the

10097filing of the pleading, motion, or other

10104paper, including a reasonable attorney's


10110This statute contains no restrictive language as to parties

10119qualifying to recover reasonable expenses, including reasonable

10126attorneys' fees, nor does it require compliance with procedural

10135requirements in order to obtain fees. But this statute is

10145potentially less beneficial to Petitioner in several ways.

10153First, Section 120.569's improper- or frivolous-purpose standard

10160is more demanding than the prevailing party standard in Section

1017057.111. Second, liability under Section 120.569 is determined

10178based on the circumstances as of the time of the filing of the

10191offending document, not subsequently, as is the case with

10200Sections 57.111 and or also subsequently, as is the case with

10211Section 57.105.

10213In his motion, Petitioner has based his request for fees on

10224Respondent's filing of two documents: the ERO and the

10233Administrative Complaint. However, the claim for fees based on

10242the ERO is misplaced here.

10247The ERO was filed with the Department of Health and

10257appealed directly to the First District Court of Appeal, where

10267jurisdiction lies for any claims under Section 120.569(2)(e),

10275Florida Statutes, arising out of the ERO. The only direct role

10286of such a pleading in the administrative process is to expedite

10297the hearing, if the licensee desires an expedited hearing.

10306Petitioner argues correctly that the ERO proceeding

10313essentially dovetails into the administrative proceeding. This

10320is true, as the agency is put to the test of proving its

10333allegations in an ERO only in a subsequent DOAH proceeding, not

10344before the appellate court. But this obligation does not arise

10354unless the agency proceeds to file an administrative complaint,

10363rather than drop the emergency licensing order. Typically, and

10372evidently in this case, the consideration by a District Court of

10383Appeal in reviewing a challenge to an emergency licensing order

10393is limited to examining the adequacy of the allegations under

10403the applicable law. See, e.g. , Field v. Department of Health ,

10413902 So. 2d 893 (Fla. 1st DCA 2005).

10421Section 120.569(2)(e), Florida Statutes, restricts the

10427reach of the Administrative Law Judge to awarding fees and

10437expenses for papers filed "in the proceeding." The proceeding

10446is DOAH Case No. 06-0598PL and, for the reasons already stated,

10457cannot be extended to preliminary matters that may never involve

10467the Division of Administrative Hearings. Only once the agency

10476files papers with the Division of Administrative Hearings does

10485the jurisdiction of the Administrative Law Judge commence,

10493pursuant to Section 120.569(2)(e).

10497Absent a mandate from the appellate court, trial courts

10506lack the jurisdiction to enter fee awards for appeals. See

10516Department of Revenue v. Yambert , 883 So. 2d 881, 884 (Fla. 5th

10528DCA 2004). Accepting Petitioner's invitation to consider the

10536ERO as a basis for fees encroaches upon the authority of the

10548District Court to police the behavior of the litigants before

10558it. For these reasons, although the ERO may serve as evidence

10569in the present fee case, it cannot serve as a basis for


10582This, of course, leaves the Administrative Complaint, which

10590clearly was filed with the Division of Administrative Hearings.

10599The first question concerns Petitioner's request for an

10607evidentiary hearing. The case law uniformly holds that the

10616trial court must base its findings on competent evidence

10625presented to the court at the hearing on attorneys' fees or

10636otherwise before the court and in the trial court record.

10646Wetherby Associates v. Ballack , 783 So. 2d 1138, 1141 (Fla. 4th

10657DCA 2001); Yakavonis v. Dolphin Petroleum, Inc. , 934 So. 2d 615,

10668618 (Fla. 4th DCA 2006); O'Brien v. Brickell Townhouse, Inc. ,

10678457 So. 2d 1123 (Fla. 3d DCA 1984). As noted above, the

10690available record is detailed and adequate for the following

10699findings, so Petitioner's request for an evidentiary hearing is

10708denied. Although findings from the recommended and final orders

10717are mentioned above, they are provided for background only,

10726because the inquiry Section 120.569(2)(e) is on the

10734circumstances in existence as of the time of the filing of the

10746challenged allegations in the Administrative Complaint.

10752Taken in its entirety, the Administrative Complaint does

10760not support a claim that Respondent filed it for an improper or

10772frivolous purpose. Respondent prevailed on its medical-records

10779claims and did so on facts available to it at the time of the

10793filing of the Administrative Complaint. Although it did not

10802prevail on these other claims, Respondent raised substantial

10810issues involving hypertension, PT time, and even abnormal blood

10819tests, and the facts supporting these substantial claims existed

10828at the time of the filing of the Administrative Complaint. For

10839these reasons alone, Petitioner cannot prevail on its Section

10848120.569 claim.

10850Even if the Administrative Complaint had been limited to

10859the allegations involving the administration of Diprivan without

10867a CRNA, Petitioner could not show that Respondent filed these

10877allegations for an improper or fraudulent purpose. Petitioner's

10885motion argues that Respondent relied fundamentally on

10892Petitioner's performance of Level II surgery using Diprivan

10900without a CRNA. This is incorrect. Respondent alleged that

10909Petitioner intended to perform Level II surgery, but the

10918administration of the Diprivan, by drip, converted the surgery,

10927intraoperatively, to Level III surgery, at which point

10935Petitioner violated the rule governing Level III surgery in the

10945office because Nurse Hoff was not a CRNA. Thus, the

10955Diprivan/CRNA allegations do not conflict with Florida

10962Administrative Code Rule 64B8-9.009(4), which applies to Level

10970II surgery.

10972Sufficient factual bases existed at the time of filing the

10982Administrative Complaint to preclude a finding that Respondent

10990made the Diprivan/CRNA allegations for an improper or frivolous

10999purpose. But the question is a close one. An important piece

11010of contrary evidence, known to Respondent at the time of filing

11021the Administrative Complaint, was found in Petitioner's medical

11029records, which indicated that the patient had been difficult to

11039sedate and remained responsive, in accordance with Level II

11048sedation or surgery. As Respondent argues, it is not required

11058to accept at face value the evidence provided by a licensee.

11069However, two other important pieces of contrary evidence were

11078derived from one of Respondent's own expert witnesses,

11086Dr. Barnett, who described the surgery as Level II and expressly

11097declined to characterize the amount of Diprivan administered as


11107On the other hand, at the time of the filing of the

11119Administrative Complaint, Dr. deMiranda rejected as "absurd" the

11127possibility that the drugs administered by Nurse Hoff and

11136Petitioner during the patient's surgery produced only Level III

11145sedation. Dr. deMiranda freely offered that "many surgeons"

11153require their staff to falsify medical records to show that

11163patients remained within the range of Level II sedation when

11173they really have fallen into Level III sedation, although he

11183conceded the difficulty of proving that the patient reached

11192Level III sedation. (Later, long after Respondent had filed the

11202allegation that Petitioner and Nurse Hoff had medicated the

11211patient into Level III sedation, Dr. deMiranda admitted, during

11220his deposition, that reports from professional personnel present

11228during surgery would suffice to assess whether the patient had

11238remained at Level II sedation.)

11243Although disagreement among Respondent's own witnesses on

11250ultimate facts should raise serious doubts of the ability of

11260Respondent to satisfy the clear-and-convincing evidentiary

11266standard, there is little, if any, room in fee cases for a

11278qualitative assessment of contrary evidence offered by expert

11286witnesses, especially after Department of Health v. Thomas , 890

11295So. 2d 400 (Fla. 1st DCA 2005), in which the court reversed an

11308attorneys' fees award under Section 57.111, Florida Statutes,

11316when the agency showed substantial justification through the

11324existence of one of three expert witnesses who supported its

11334standard-of-care claim. Not attempting any assessment itself of

11342the opinions themselves, the court dismissed the award by

11351noting, "The Department was free to believe one expert despite

11361the existence of two expert opinions to the contrary because a

11372decision to prosecute that turns on a credibility assessment has

11382a reasonable basis in fact and law." 890 So. 2d at p. 401.

11395It has not passed without notice that Dr. Barnett

11404energetically condemned Petitioner without the benefit of the

11412toxicology report, attempting even to "imagine" probable causes

11420of death and thus link Petitioner's acts and omissions to this

11431patient's tragic demise; that Dr. deMiranda speculated that many

11440surgeons violate Florida law in the administration of anesthesia

11449and never bothered to account for the role of heroin in the

11461patient's death; that a close examination of the pre-filing

11470opinions of Respondent's two experts shows that they essentially

11479contradicted each other; that each of Respondent's experts

11487retreated from opinions stated in his or her report when

11497confronted by cross-examination (or perhaps the prospect of

11505cross-examination); that the probable-cause panel thought, like

11512Dr. Barnett, that this was a preventable death and a "maximum

11523violation"; that, based on its attorney's summation, the

11531probable-cause panel likely believed that Respondent would

11538prosecute this as a Level II-surgery case; and that, based on

11549its rulings on Respondent's exceptions, the Board of Medicine

11558misconstrued the case as a Level II-surgery prosecution. But

11567even if the Administrative Complaint were reduced to the

11576Diprivan/CRNA allegations, Petitioner would still not have been

11584entitled to reasonable expenses, including attorneys' fees,

11591under Section 120.569(2)(e), Florida Statutes.


11597It is

11599ORDERED that:

116011. Petitioner's request for an evidentiary hearing is


116102. Petitioner's Motion for Attorney's Fees is denied.

11618DONE AND ORDERED this 20th day of August, 2007, in

11628Tallahassee, Leon County, Florida.




11637Administrative Law Judge

11640Division of Administrative Hearings

11644The DeSoto Building

116471230 Apalachee Parkway

11650Tallahassee, Florida 32399-3060

11653(850) 488-9675 SUNCOM 278-9675

11657Fax Filing (850) 921-6847


11662Filed with the Clerk of the

11668Division of Administrative Hearings

11672this 20th day of August, 2007.


11680George Kellen Brew, Esquire

11684Brew and Harper, P.L.

116886817 Southpoint Parkway, Suite 1804

11693Jacksonville, Florida 32216

11696Lewis W. Harper, Esquire

11700Brew and Harper, PL

117046817 Southpoint Parkway, Suite 1804

11709Jacksonville, Florida 32216

11712Patricia Nelson, Esquire

11715Department of Health

117184052 Bald Cypress Way, Bin C-65

11724Tallahassee, Florida 32399-3250

11727R. S. Power, Agency Clerk

11732Department of Health

117354052 Bald Cypress Way, Bin A02

11741Tallahassee, Florida 32399-1701

11744Mari M. Presley, Esquire

11748Department of Health

117514052 Bald Cypress Way, BIN C65

11757Tallahassee, Florida 32399-3265

11760Larry McPherson, Executive Director

11764Department of Health

117674052 Bald Cypress Way

11771Tallahassee, Florida 32399-1701

11774Josefina M. Tamayo, General Counsel

11779Department of Health

117824052 Bald Cypress Way, BIN A02

11788Tallahassee, Florida 32399-170


11797A party who is adversely affected by this Final Order is

11808entitled to judicial review pursuant to Section 120.68, Florida

11817Statutes. Review proceedings are governed by the Florida Rules

11826of Appellate Procedure. Such proceedings are commenced by filing

11835the original Notice of Appeal with the agency clerk of the

11846Division of Administrative Hearings and a copy, accompanied by

11855filing fees prescribed by law, with the District Court of

11865Appeal, First District, or with the District Court of Appeal in

11876the Appellate District where the party resides. The notice of

11886appeal must be filed within 30 days of rendition of the order to

11899be reviewed.

Select the PDF icon to view the document.
Date: 08/20/2007
Proceedings: Amended DOAH FO
Date: 08/20/2007
Proceedings: Amended Final Order Granting Motion to Dismiss. CASE CLOSED.
Date: 08/20/2007
Proceedings: Letter to Larry McPherson from Judge Meale regarding typographical error filed.
Date: 08/17/2007
Proceedings: Letter to Judge Meale from M. Presley requesting a corrected final order filed.
Date: 08/08/2007
Proceedings: Final Order Granting Motion to Dismiss. CASE CLOSED.
Date: 08/02/2007
Proceedings: Motion to Withdraw as a Attorney filed.
Date: 06/01/2007
Proceedings: Petitioner`s Notice of Supplemental Authority and Reply to Respondent`s Response in Opposition filed.
Date: 05/07/2007
Proceedings: Petitioner`s Response in Opposition to Respondent`s Supplement to Respondent`s Motion to Dismiss Petitioner`s Petition for Attorney`s Fees filed.
Date: 05/03/2007
Proceedings: Respondent`s Supplement to the Motion to Dismiss Petitioner`s Petition for Attorney`s Fees filed.
Date: 04/26/2007
Proceedings: Petitioner`s Notice of Filing Copy of the Department of Health`s Emergency Order of Restriction Against Petitioner Filed as Exhibit "A" to Petitioner`s Appendix to Petitioner`s Motion to Dismiss Filed on March 8, 2006, in DOAH Case No. 2006-0598PL filed.
Date: 04/03/2007
Proceedings: Petitioner`s Response in Opposition to Respondent`s Motion to Dismiss Petitioner`s Petition for Attorney`s Fees filed.
Date: 04/02/2007
Proceedings: Affidavit of Attorney`s of Record Supporting Award of a Reasonable Attorney` s Fees filed.
Date: 03/27/2007
Proceedings: Petitioner`s Request for an Evidentiary Hearing filed.
Date: 03/27/2007
Proceedings: Notice of Unavailability filed.
Date: 03/22/2007
Proceedings: Respondent`s Motion to Dismiss Petitioner`s Petition for Attorney`s Fees filed.
Date: 03/08/2007
Proceedings: Petitioner`s Notice of Filing Supplemental Exhibit to Petitioner`s Motion for Attorney`s Fees and Costs filed.
Date: 03/08/2007
Proceedings: Notice of Unavailability filed.
Date: 03/08/2007
Proceedings: Petitioner`s Notice of Filing Exhibit to Petitioner`s Motion for Attorney`s Fees and Costs filed.
Date: 03/07/2007
Proceedings: Notice of Unavailability filed.
Date: 03/07/2007
Proceedings: Petitioner`s Notice of Filing Exhibit to Petitioner`s Motion for Attorney`s Fees and Costs filed.
Date: 03/02/2007
Proceedings: Initial Order.
Date: 03/02/2007
Proceedings: Respondent`s Motion for Attorney`s Fees Pursuant to Sections 57.105, 57.111, and 120.569, Florida Statutes filed. (FORMERLY DOAH CASE NO. 06-0598PL)

Case Information

Date Filed:
Date Assignment:
Last Docket Entry:
Fort Lauderdale, Florida
Department of Health


Related DOAH Cases(s) (4):

Related Florida Statute(s) (8):

Related Florida Rule(s) (1):