99-003870 Department Of Health, Board Of Medicine vs. Catherine Marie Lynch, M.D. Status: Closed Recommended Order on Monday, July 3, 2000.

Summary: Administrative Complaint charged that Respondent`s medical practice was below the standard of obstetrical care by failing to discontinue Pitocin and perform a Cesarean section soon enough. The charges were not proven by clear and convincing evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD )

OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 99-3870

)

CATHERINE MARIE LYNCH, M.D., )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

On April 18-19, 2000, a formal administrative hearing was

held in this case in Tampa, Florida, before J. Lawrence Johnston,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Richard Ellis, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Bruce D. Lamb, Esquire

Ruden, McCloskey, Smith,

Shuster & Russell, P.A.

401 East Jackson Street, Suite 2700

Tampa, Florida 33602-2378

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Catherine

Marie Lynch, M.D., should be disciplined on charges alleged in

the Amended Administrative Complaint filed by Petitioner, the

Department of Health (DOH), in DOH Case No. 98-14411.

Essentially, the charges are that Respondent practiced

obstetrical medicine below acceptable standards on November 9,

1997, by not decreasing or discontinuing a patient's Pitocin and

by delaying performance of a Cesarean section notwithstanding

fetal heart rate (FHR) decelerations requiring contrary action.

PRELIMINARY STATEMENT

On August 24, 1999, DOH filed an Administrative Complaint

against Respondent in DOH Case No. 98-14411. Respondent disputed

the charges and requested a formal administrative proceeding.

The case was referred to the Division of Administrative Hearings

(DOAH) and set for final hearing in Tampa, Florida, on February

2-4, 2000. On the parties' agreed motion, final hearing was

continued to April 18-20, 2000. On February 16, 2000, Petitioner

was given leave to file an Amended Administrative Complaint,

which was filed on March 7, 2000.

On March 27, 2000, Petitioner filed a Motion for Taking

Official Recognition of the Amended Final Order in Department of

Health v. Mohammad Fathi Abdel-Hameed, M.D. , DOAH Case Nos.

97 -0337 and 97-0338. On April 17, 2000, Respondent filed a

Motion to Take Official Recognition of Florida Administrative

Code Rules 64B8-6.002 through 64B8-6.0005 in effect on November

9, 1997--the date of the medical care in question in this case.

At final hearing, both motions for official recognition were

granted, subject only to relevance of the Abdel-Hameed Amended

Final Order, which was marginal at best. (Petitioner's Proposed

Recommended Order conceded that the Abdel-Hameed Amended Final

Order only was being used to prove that " Pitocin must be used

carefully.") Petitioner called the patient's husband, Frank

Britt, Sheila Devanesan, M.D., and Harold Schulman, M.D.

Petitioner had Petitioner's Exhibits 1 through 9 admitted in

evidence. Petitioner's Exhibit 3 was a transcript of the

deposition testimony of Scott E. Musinski, M.D. Respondent

testified in her own behalf and called Robert W. Yelverton, M.D.

Respondent had Respondent's Exhibits 1 through 5 admitted in

evidence.

After presentation of the evidence, Petitioner ordered a

transcript, and the parties requested 20 days from the filing of

the transcript in which to file proposed recommended orders. The

Transcript was filed on May 4, 2000, and the timely proposed

recommended orders filed by both parties have been considered.

FINDINGS OF FACT

1. Respondent, Catherine Marie Lynch, is and was at all

times material to the allegations in the Amended Administrative

Complaint, a licensed physician in the State of Florida, having

been issued License No. ME 0061336.

2. Respondent received a Bachelor of Science degree in

science and biology from Georgetown University in Washington,

D.C., in 1986. She received her Doctor of Medicine degree from

the University of South Florida (USF) College of Medicine in

Tampa, Florida, in 1990. She completed a standard residency

program in obstetrics and gynecology through the USF College of

Medicine in 1994. Dr. Lynch currently holds hospital

appointments at Tampa General Hospital (Tampa General), H. Lee

Moffitt Cancer Center, Bay Pines Veterans Administration

Hospital, and Town 'N' Country Hospital, all in Tampa, Florida.

3. After her formal education, Dr. Lynch joined the faculty

of the USF College of Medicine in July of 1994 as an instructor.

She was promoted to Assistant Professor of Medicine in July of

1995 and was appointed Director of the Division of General

Obstetrics and Gynecology of the USF College of Medicine in 1997.

Since 1994, Dr. Lynch has been involved in the education of

medical students and resident physicians, teaching both general

obstetrics and gynecology, as well as urogynecology,

incontinence, and pelvic reconstruction. She is responsible for

oversight of the attending physicians within the Division of

General Obstetrics and Gynecology, for operating room assignments

and labor and delivery assignments, and coverage for these

physicians. She also is responsible for the development of the

schedule for resident physicians. These attending physicians and

resident physicians provide care and treatment to patients at

Tampa General Hospital, other hospitals, and obstetrics clinics.

4. Respond ent is Board-certified in obstetrics and

gynecology by the American Board of Obstetrics and Gynecology,

having first become Board-certified in November 1996. She is a

Fellow of the American College of Obstetrics and Gynecology.

Staffing at Tampa General

5. During November of 1997, there were approximately 24

residents in the obstetrics and gynecology (OB/GYN) residency

program at the USF College of Medicine. There were six residents

per year of matriculation.

6. During a regular work week in Novembe r of 1997, 21 of

the 24 residents would cover a variety of services on the labor

and delivery floor and throughout Tampa General. The other three

would be at other locations, such as Genesis, a clinic, or the

Moffitt Cancer Center. But November 9, 1997, the date in

question in this case, was a Sunday. On weekends (and nights),

"full services" were consolidated under the "on-call team." This

team consisted of a first-year resident, a second-year resident,

a third-year resident, a fourth-year resident, and one attending

physician. The "on-call" team would cover all of the services

provided at Tampa General, including not only labor and delivery

but also antepartum, admissions to regular hospital floor, the

postpartum ward, the gynecology ward, the gynecology-oncology

ward, the emergency room, and emergency surgeries (such as

ectopic pregnancy surgeries.)

7. The "on-call" team's first-year resident is primarily

responsible for the triage (initial evaluation) of patients who

presented to labor and delivery for evaluation as to whether such

patients needed to be admitted to the hospital or could return to

their residence. In addition, the first-year resident is

primarily responsible for the "laboring" patients on labor and

delivery under the supervision of the third-year resident.

8. The "on-call" team's second-year resident responds to

calls or questions on any of the wards for obstetrical or

gynecological problems or complaints other than labor and

delivery. The second-year resident also consults with other

physicians in the area of obstetrics and gynecology and sees

patients in the emergency room. The second-year resident also is

responsible for operative interventions, whether gynecological or

obstetrical in nature, under the supervision of the fourth-year

resident.

9. The "on-call" team's third-year resident is responsible

for supervision of the first-year resident in labor and delivery.

Its fourth-year resident is responsible for oversight of the

other residents. The fourth-year resident also is responsible

for any sort of operative intervention, whether it be

gynecological or obstetrical in nature.

10. The "on-call" team's attending physician oversees all

of the residents.

11. Residents practice as unlicensed doctors-in-training

under Section 458.345, Florida Statutes. Florida Administrative

Code Rule 64B8-6.005 provides:

Resident Physician and Assistant Resident

Physician; Duties of. An assistant resident

or resident physician participates in an

organized graduate education program in which

he has daily contact with patients and

assumes increasing responsibility for their

care under the supervision of the attending

staff of the hospital. The assumption of

responsibility is a most important aspect of

residency training. As each assistant

resident or resident physician demonstrates

increasing knowledge and ability, an

increasing amount of reliance should be

placed in his judgment in the diagnosis and

in treatment of patients. He may also

participate in the teaching of interns and

medical students to an increasing extent. In

surgery and surgical specialties, the

assistant resident and resident physician

should be given ample opportunity to perform

major surgical procedures under direct

supervision of qualified members of the

professional staff of the hospital,

particularly in the later stages of his

training, in order that he may acquire

surgical skill and judgment.

This rule was in effect in November 1997, and remained in effect

at the time of the final hearing.

12. In 1997, the USF OB/GYN residency program utilized both

didactic lectures and clinical training to educate medical

students and residents. Such training included the assessment of

patients in labor, including the interpretation of fetal heart

rate (FHR) monitoring strips.

Chronology of Events

at Tampa General

13. On Sunday, November 9, 1997, Respondent was the "on-

call" team's attending physician at Tampa General. The team's

first-year resident was Sheila Devanesan, M.D. The second-year

resident was Cathy Johnson, M.D. The third-year resident was

Scott E. Musinski, M.D. The fourth-year (chief) resident was

Kimberly Huffman, M.D.

14. On November 9, 1997, the patient, S.N., then age 40,

was two days past her estimated due date of delivery. The

gestational age of the fetus was 40 weeks. S.N. had received her

prenatal care at the Genesis outpatient clinic of Tampa General

and was classified as a low-risk patient. She had delivered

vaginally after normal pregnancies in 1978 and 1983. She had no

infections or any other medical condition during her pregnancy in

1997 that would have impaired the health of the fetus.

15. S.N. experienced a spontaneous rupture of the membranes

of the amniotic sac at approximately 8:00 a.m. on November 9,

1997. She and her husband, Frank Britt, came to Tampa General

and arrived at approximately 9:35 a.m. Nursing staff initiated

electronic fetal heart monitoring for S.N. by way of the maternal

abdomen, along with electronic monitoring of the patient's

uterine contractions.

16. At Tampa Genera l, the electronic fetal heart monitor

and uterine contraction sensors are attached to several display

monitors. One is in the patient's labor and delivery room;

others are located in the doctors' lounge, at the nursing

station, and in the "well" on the labor and delivery floor. The

display monitors only depict current events. The history of the

FHR and the patient's contractions while on labor and delivery

are recorded on a paper strip located only in the patient's room.

17. The first "on-call" team me mber to examine and assess

S.N. on November 9, 1997, was Sheila Devanesan, M.D., who saw the

patient at approximately 9:45 a.m. Dr. Devanesan performed a

cervical examination, which indicated that S.N.'s cervix was

dilated to five centimeters. Dr. Devanesan also noted the

presence of light meconium (fetal fecal matter) in the amniotic

fluid. The volume of meconium was not felt to present a problem

for the fetus.

18. In the course of her initial examination and

assessment, Dr. Devanesan also noted the presence of variable

fetal heart decelerations but characterized the fetal heart rate

(FHR) as "reassuring" at that time.

19. Fetal heart decelerations denote a decline in fetal

heart beats-per-minute ( bpm) to a rate below the FHR "baseline."

The baseline is an average of the beat-to-beat variations in the

FHR when the FHR is neither accelerating nor decelerating. The

baseline can vary from fetus to fetus and also can vary during

the course of any one patient's labor. Generally, the baseline

heart rate of a fetus will be between 120 and 160 bpm.

20. Fetal heart decelerations are not uncommon during labor

and delivery, and are not necessarily indicative of fetal

distress. However, certain categories of fetal heart

decelerations are of more concern to the clinician than others.

21. In this case, "variable" fetal heart decelerations were

found virtually from the time electronic fetal heart monitoring

was initiated at 9:35 a.m. Variable decelerations can indicate a

compressed umbilical cord, which in turn can require intervention

by the obstetrician, or even a change in the plan of delivery

(from a vaginal delivery to delivery by Cesarean section).

Repeated variable decelerations can deplete fetal oxygen reserves

and lead to complications, including metabolic acidosis.

22. At approximately 10:00 a.m. on November 9, 1997,

Dr. Musinski performed a sonogram in an attempt to determine the

cause of the variable decelerations. Based on the sonogram, he

diagnosed oligohydramnios, or deficient amniotic fluid.

Compression of the umbilical cord is a complication of

oligohydramnios.

23. With help from Dr. Musinski, Dr. Devanesan placed a

fetal scalp electrode to more precisely monitor fetal heart rate

at approximately 10:12 a.m. Dr. Devanesan also ordered

amnioinfusion (infusion of fluid into the amniotic sac) in the

amount of 500 cubic centimeters (cc's), at approximately 10:19

a.m. Amnioinfusion is an appropriate intervention to treat

possible cord compression from oligohydramnios.

24. Respondent came to S.N.'s bedside at 10:34 a.m. and

reviewed the FHR tracing strip recorded by electronic fetal heart

monitoring. Generally, it was Respondent's practice to review

the strip retroactively 30-45 minutes whenever she was at bedside

in labor and delivery. Appropriately, Respondent did nothing to

change the care being provided to the patient by the residents at

that point.

25. At 11:00 a.m., it was decided to give the patient an

epidural for pain. An epidural is the infusion of pain

medication through a catheter into a location in the patient's

spine; it relieves pain without affecting the patient's level of

consciousness. To place an epidural catheter, the patient must

be repositioned to a sitting position. This repositioning can

cause FHR decelerations.

26. The patient's labor record confirms that she was in a

sitting position for placement of the epidural at 11:00 a.m. The

patient's record indicates that a test dose was administered

through the epidural at 11:10 a.m.

27. Dr. Devanesan performed another cervical examination at

11:36 a.m., and found S.N.'s cervix still dilated to five

centimeters. The patient's record indicates that a bolus of

Fentanyl was given to the patient by epidural at 11:37 a.m.

28. The administration of Fentanyl through an epidural

catheter can cause FHR decelerations.

29. After conferring with Dr. Musinski, Dr. Devanesan gave

an order for a second amnioinfusion at 11:40 a.m. due to

continued variable decelerations. The second order was for

250 cc's; according to the patien t's hospital record, it was the

last amnioinfusion ordered for or administered to the patient.

30. Due to S.N.'s lack of progress in labor, Dr. Devanesan

gave an order for Pitocin at 11:52 a.m., after conferring with

Dr. Musinski, to augment labor by stimulating uterine

contractions. Dr. Devanesan's order was for 1 milli-

International Unit ( mIU), to be increased by 1 mIU every 30

minutes up to 20 mIU's of Pitocin or until adequate contractions

began. There is no evidence that Respondent participated in the

decision to start Pitocin.

31. Pitocin is a brand name; the generic name for the drug

is oxytocin. Pitocin is not used to manage fetal heart

decelerations. To the contrary, Pitocin is generally

contraindicated where FHR is considered non-reassuring. But one

mIU is a miniscule amount, and the progression of 1 mIU every 30

minutes was very conservative.

32. Dr. Devanesan noted on S.N.'s chart that FHR was

"overall reassuring" at 11:40 a.m. Respondent reasonably

believed that Dr. Devanesan had the education and training to

identify nonreassuring, as well as reassuring, FHR patterns. But

Dr. Devanesan testified at final hearing that she did not have

the competence as a first-year resident to judge when FHR

patterns were nonreassuring overall.

33. At approximately 12:03 p.m., after successive, milder

fetal heart decelerations that morning, the fetus experienced an

abrupt deceleration, from its baseline of approximately 120 bpm

to just under 50 bpm. The heart rate did not return to baseline

for approximately four minutes.

34. At approximately 12:07 p.m., the notation "U/S" appears

on the heart monitor strip. That notation may refer to a second

ultrasound examination; however, neither Dr. Devanesan nor

Dr. Musinski could recall performing a second ultrasound.

35. At approximately 12:10 p.m., Dr. Devanesan was at

S.N.'s bedside. The heart monitor strip bears a nurse's notation

at 12:10 p.m., reading "Off by Dr. Devanesan to stop flash

light." The monitor in the labor room flashed automatically to

call attention to significant FHR decelerations. The screen had

activated in response to the 12:03 p.m. deceleration. Dr.

Devanesan instructed nursing staff to turn off a flashing screen

at that time, since the medical professionals were aware of the

patient's recurrent decelerations.

36. Following the 12:03 p.m. deceleration, the FHR

decelerated to approximately 50 bpm again at 12:10 p.m., 12:14

p.m., and 12:20 p.m., in tandem with uterine contractions. The

12:10 p.m. deceleration is notable in itself due to its onset,

which is less abrupt than the 12:03 p.m., deceleration. The

gradual nature of the deceleration is suspicious for possible

hypoxia, or lack of oxygen, in the fetus.

37. Fetal heart rate decelerated to 60 bpm at approximately

12:27 p.m., remained at 60 bpm for approximately thirty seconds,

and did not return to baseline for approximately three minutes.

38. Fetal heart rate decelerated to 50 bpm at approximately

12:36 p.m., again during a uterine contraction. Also at that

time, Pitocin was increased from one mIU to two mIU's.

39. Dr. Devanesan returned to S.N.'s bedside at

approximately 12:45 p.m. due to her concern with continued fetal

heart decelerations. At the same time, the FHR became irregular,

with multiple decelerations over the course of the next eight

minutes. Nurses' notes for 12:45 p.m. indicate fetal heart

decelerations to "60's-90's for approx. 3-4 [minutes with] slow

return to 100's".

40. Dr. Musinski came to S.N.'s bedside at approximately

12:55 p.m., likewise due to concern with fetal heart

decelerations. He performed a vaginal (cervical) examination at

that time, and found S.N. to be dilated to seven-to-eight

centimeters.

41. At 12:58 p.m., Respondent joined Dr. Musinski at S.N.'s

bedside, along with Catherine Johnson, M.D., a second-year

resident in obstetrics and gynecology. Dr. Musinski did not

recall why Respondent came to the labor room. Respondent

testified that she observed the fetal heart tracing on one of the

remote monitors and made an independent determination to come to

S.N.'s bedside.

42. Respondent testified further that she spent

approximately ten minutes at S.N.'s bedside; she also testified

that she was there until 1:15 or 1:20 p.m. She testified that

she instructed Dr. Musinski to perform a cervical examination.

Respondent also performed a cervical examination. The cervical

examination indicated that S.N.'s cervix remained dilated to

seven-to-eight centimeters.

43. Respondent also testified that, while Respondent was at

bedside on this occasion, she instructed Dr. Musinski to perform

a fetal scalp stimulation. A fetal scalp stimulation (also known

as Clark's test) is a simple assessment measure used to learn

whether the fetus is acidotic. Essentially, the doctor

stimulates the fetal scalp and looks for a FHR acceleration in

response. If so, the doctor has some reassurance that the fetus

is not acidotic at that time.

44. There is no notation in Dr. Musinski's progress note of

1:03 p.m. to indicate that the fetal scalp stimulation was

performed, or what results were obtained if it was performed.

There is a notation in Dr. Musinski's 1:03 p.m. note indicating

significant variable fetal heart decelerations, with "prolonged

recovery" and good beat-to-beat variability. However, Respondent

testified that there was a reassuring response to the fetal scalp

stimulation performed by Dr. Musinski.

45. During her time at bedside on this occasion, Respondent

became aware of the administration of Pitocin. The heart monitor

strip in fact indicates that the dosage of Pitocin was increased

to three mIU's at 1:01 p.m. Respondent did not think it was

necessary to decrease or discontinue Pitocin at that time.

46. While at bedside on this occasion, Respondent reviewed

the fetal heart monitor strip. Respondent conceded that there

were nonreassuring FHR tracings prior to her arrival at 12:58

p.m. At approximately 1:07 p.m., fetal heart rate decelerated

from 150 to 90 bpm, recovered momentarily to 120, and then

decelerated to 60, returning to baseline approximately two

minutes later. But while Respondent was still at bedside, she

saw some improvement and drew the conclusion that FHR still was

reassuring overall, notwithstanding the variable decelerations.

She left with the instruction that she be notified if FHR

patterns deteriorated so that the team could decide what to do

next.

47. At approximately 1:25 p.m., the FHR accelerated

momentarily to 150 bpm and then declined abruptly to 60, in

tandem with a uterine contraction. Robert Yelverton, M.D.,

Respondent's own expert witness, conceded that fetal heart rate

did not return to baseline until almost 1:30 p.m.

48. At approximately 1:38 p.m., fetal heart rate

decelerated to approximately 65 bpm, in tandem with a uterine

contraction, and did not return to baseline for approximately two

minutes.

49. At approximately 1:48 p.m., Dr. Musinski performed

another cervical examination; he found S.N.'s cervix dilated to

seven centimeters and 70% effaced. The fetus was in minus 1

station (not yet to mid-pelvis). The results of that examination

are noted on both the fetal heart monitor strip itself and in

Tampa General's nurses' notes. The strip itself indicates that

the fetus experienced a heart deceleration to 60 bpm at

1:48 p.m., in tandem with a uterine c ontraction.

50. At approximately 1:55 p.m., fetal heart rate

accelerated momentarily to 150 bpm, then abruptly decelerated to

60, and did not return to baseline until over two minutes later,

and then decelerated twice more over the next four minutes.

51 . At approximately 2:00 p.m., the dosage of Pitocin was

increased to five mIU's. Also at 2:00 p.m., Dr. Musinski came to

the patient's bedside and reviewed the fetal heart tracing.

52. Beginning at approximately 2:01 p.m., the fetal heart

tracing took on a markedly different appearance. The tracing at

that point becomes notably flat in nature, whether at, above, or

below baseline. There was no more beat-to-beat variability.

53. A marked lack or absence of beat-to-beat variability

can indicate metabolic acidosis, which is of great concern to the

clinician, and can dictate an intervention or change in the plan

of delivery, and on an emergency basis depending upon

circumstances.

54. In instances of metabolic acidosis, the fetus begins

to break down fats as well as sugars in order to create energy

supply, due to lack of normal intake of oxygen. In the process,

lactic and other acids accumulate, resulting in acidosis.

55. Dr. Musinski again reviewed the tracing on the heart

monitor strip and examined S.N. at 2:18 p.m. Again, he found

S.N.'s cervix dilated to seven centimeters.

56. There was a conflict in the evidence as to what

happened next. Dr. Musinski recalled discussing a Cesarean with

Respondent at approximately 2:18 p.m. Other evidence tends to

support Dr. Musinski's version of events. A written consent form

for a Cesarean was signed by Dr. Musinski and the patient's

husband and bore the handwritten time of 2:18 p.m. Respondent

denied that Respondent discussed a Cesarean with her at 2:18 p.m.

She also testified that she never was notified of the loss of

baseline variability but saw the tracing on one of the other

three monitors at approximately 2:35 p.m., just after finishing a

Cesarean on another patient with Drs. Huffman and Devanesan.

Respondent testified that, at that point, she sent Dr. Huffman to

the patient's labor room and instructed the nursing staff to set

up for a fetal scalp pH test sample. Respondent believed that

the consent form must have been signed later when circumstances

became even more urgent. See Findings 66-67, infra . Otherwise,

Respondent would have expected the patient to sign, not just her

husband. But Respondent had no cogent explanation as to why the

time 2:18 p.m. would have been written on the form.

57. The patient's husband also recalled talking to

Respondent about a Cesarean at some point during the afternoon,

presumably at or after the time the consent form was signed, and

being told that the delivery would be vaginal. But the evidence

is not clear as to exactly when the husband spoke to Respondent.

58. Considering all of the evidence on this point, although

it may be suspected that Dr. Musinski spoke to Respondent about a

Cesarean around 2:18 p.m., the evidence on this point was not

clear and convincing, and the Respondent's version of the

circumstances leading to her coming to bedside must be accepted.

59. Multiple fetal heart decelerations followed from 2:18

p.m. to 2:37 p.m., bearing an uncertain relationship to uterine

contractions during that span of time. In accordance with Dr.

Devanesan's order, Pitocin was increased to six mIU's at 2:30

p.m.

60. Dr. Huffman arrived at S.N.'s bedside at 2:37 p.m. She

viewed the tracing on the heart monitor strip and performed a

cervical examination. Dr. Huffman's examination indicated that

S.N.'s cervix was still dilated to seven centimeters.

61. Respondent herself entered S.N.'s room at 2:40 p.m.

She intended to proceed with a fetal scalp pH at that point and

ordered nursing staff to place S.N. in the lithotomy position for

the procedure.

62. The term pH refers to potential of hydrogen, and the

value assigned upon clinical laboratory examination determines

the extent to which blood is normal, or has excessive alkaline

content, or excessive acid. The values given are logarithmic in

nature: e.g. , a blood pH of 6 is ten times more acidic than a

blood pH of 7; and a blood pH of 5 is one hundred times more

acidic than a blood pH of 7. Normal blood pH in the fetus is

7.25 to 7.35.

63. A fetal scalp pH te st is a means of assessing the

health of the fetus in labor. A mixture of arterial and venous

blood is taken from the fetal scalp. While somewhat useful, the

test only tells the clinician the fetal pH at the point in time

when the sample is drawn. The test lacks predictive value

concerning the onset of metabolic acidosis.

64. After reviewing the tracing strip, and seeing that

baseline had increased to 150 bpm, but with no beat-to-beat

variability, Respondent abandoned the fetal scalp pH test,

deciding instead to try to complete a vaginal delivery. (This

may have been what the patient's husband was recalling when he

testified that Respondent told him it would not be a Cesarean but

a vaginal delivery.) Respondent performed a cervical examination

of S.N. and found S.N.'s cervix to be dilated to nine

centimeters. However, she also found that the fetus was in an

occiput transverse position, with the fetal head unfavorably

situated for a spontaneous vaginal delivery.

65. At hearing, Respondent described h er actions at that

point as follows:

A. . . . And I hoped that if I could bring

it down just a little further, get rid of

that last bit of cervix, I could get forceps

in and pull the baby out in under five

minutes.

Q. You demonstrated that the fetal head was

turned sideways; is that correct?

A. Yes.

Q. And that's not the ideal position for use

of forceps; is that correct?

A. Correct.

Q. So what did you decide to do at that

point?

A. Well, since the baby had come down just

with repositioning the mother, obviously her,

you know, increasing intra-abdominal

pressure, just with the abdominal pressure,

with the change, in position of the tubal

lithotomy for the scalp pH, when I did the

exam I hoped that since she already had two

large babies, that if she could give me one

good push she could bring the baby down to

plus two and it would be a[n] easy-outlet

delivery.

66. Respondent asked S.N. to push at approximately 2:45

p.m., in an attempt to deliver the baby vaginally. The baby was

not delivered at that point, however. Instead, the baby remained

in utero , and prolonged fetal bradycardia (slowing of heart rate)

ensued. Fetal heart rate decelerated to 60 bpm, and remained at

60 bpm for approximately three minutes. The heart monitor strip

then shows a momentary return to baseline in tandem with a shift

of S.N. to left lateral position, following which fetal heart

rate decelerated back to 60 bpm, and then decelerated further to

40 bpm, over the next several minutes.

67. Pitocin continued to be administered throughout

Respondent's unsuccessful attempt to effect a vaginal delivery.

It was not discontinued until 2:51 p.m., and then apparently only

due to impending transport of S.N. to the operating room for an

emergency Cesarean section. Respondent ordered an emergency

Cesarean section at approximately that time, and the Cesarean

section was performed at approximately 3:00 p.m. by Dr. Johnson,

with Respondent assisting.

68. The baby was delivered by Cesarean section at 3:01 p.m.

In the course of the baby's delivery, Respondent found the

umbilical cord over the baby's shoulder and down its back. The

shoulder over which the cord coursed had been pressing against

the maternal pubic bone, causing cord compression.

69. One minute after birth, the baby's Apgar score was

zero, equivalent to an absence of any signs of life. The baby

was resuscitated following delivery, but there was a conflict in

the evidence as to whether and how quickly the baby was initially

intubated.

70. Respondent's first iteration of the facts of this case,

given in her attorney's correspondence dated August 26, 1998,

indicates simply as follows: "Roberto Rivera, M.D., successfully

intubated Baby Boy N. and provided ventilation. Jennifer

Casetelli, M.D., monitored the heart rate, and the pediatric

nurse provided cardiac compressions. At 5 minutes, the Apgar

score was 3; 2 for heart rate, and 1 for skin color. At this

point, Baby N. was receiving positive pressure ventilation via

the endotracheal tube and was transported to the Neonatal

Intensive Care Unit (NICU)." Respondent reviewed the August 26,

1998, correspondence before it was dispatched by her attorney,

and she authorized its dispatch.

71. At hearing, Respondent told a different story.

According to her initial hearing testimony, she personally

witnessed a first-year pediatric resident unsuccessfully attempt

to intubate the baby, and it took over two minutes for the baby

to be intubated. Respondent later answered another question

about the intubation as follows:

Q. Do you know how many attempts it took

before the child was intubated?

A. I know there was only one interval in

which bagging occurred between attempts.

What I observed, and in fact asked the

anesthesia individual to go over and help, at

which time--by the time the anesthesia

resident got there the second-year had the

tube in, the clock was reading about 2:10. I

think it said 2:15. And it had been over a

minute or more that they had been trying to

get the tube down. (Vol. II transcript p.

228.)

72. Ther e are no notations in either the mother's chart or

the baby's chart to indicate any difficulty of intubation. To

the contrary, the notation in the baby's chart reads: " Apgar at

5 minutes was 3 with patient intubated." With the baby delivered

at 3:01 p.m., an Apgar score of 3 at five minutes "with patient

intubated" would mean that the baby was intubated at 3:06 p.m.,

if not sooner. Respiratory care notes in the baby's chart in

fact indicate that the baby was intubated as of 3:03 p.m.

73. Upon the baby 's delivery at 3:01 p.m., the umbilical

cord was clamped and cut, and a blood specimen taken from the

cord for clinical laboratory analysis. The pertinent laboratory

result was a cord blood pH of 7.15, which would signify acidosis.

74. The baby was admitted to the neonatal intensive care

unit (NICU) at 3:08 p.m. At 3:15 p.m., the baby suffered

cardiorespiratory arrest. A "code" (emergency response) was

called at that time in the NICU. The "Code 19 Flow Sheet"

indicates that the code ended at 3:30 p.m., with the baby

resuscitated at that time. NICU progress notes indicate that the

baby's heart rate was steady at 148 bpm at 3:30 p.m. However, a

blood sample drawn at 3:24 p.m. for arterial blood gas analysis

resulted in a pH of 6.81, which is grossly acidotic.

75. The baby was hospitalized at Tampa General for 25 days.

He was treated with phenobarbital for seizures. He was diagnosed

with metabolic acidosis on November 9 and 10, 1997. Reports of

outpatient visits after discharge indicate developmental delays

and a diagnosis of severe static encephalopathy, i.e. , permanent

brain damage.

Medical Expert Evaluation

76. The medical experts who testified in this case had

differences of opinion as to the nomenclature as well as the

significance of the variable decelerations evidenced by the FHR

monitor tracings in this case. They also differed to when it was

necessary to reduce or stop Pitocin and when it was necessary to

initiate a Cesarean section. Respondent and her witness, Robert

W. Yelverton, M.D., would be willing to wait longer than

Petitioner's expert, Harold Schulman, M.D. Preliminary excerpts

from authoritative literature will help put the subsequent

discussion of these differences of opinion in context.

77. The American College of Obstetricians and Gynecologists

(ACOG) Technical Bulletin 207, published in July 1995, and still

in effect on November 9, 1997, begins by stating:

Intrapartum fetal heart rate (FHR) monitoring

can help the physician identify and interpret

changes in FHR patterns that may be

associated with such fetal conditions as

hypoxia, umbilical cord compression,

tachycardia, and acidosis. The ability to

interpret FHR patterns and understand their

correlation with the fetus' condition allows

the physician to institute management

techniques, including maternal oxygenation,

amnioinfusion, and tocolytic therapy.

* * *

Transient and repetitive episodes of hypomema

and hypoxia, even at the level of the central

nervous system (CNS), are extremely common

during normal labor and are generally well

tolerated by the fetus. Further, a

progressive intrapartum decline in baseline

fetal oxygenation and pH is virtually

universal; levels of acidemia that would be

ominous in an infant or adult are commonly

seen in normal newborns. Only when hypoxia

and resultant metabolic acidemia reach

extreme levels is the fetus at risk for long-

term neurologic impairment. For purposes of

this bulletin, the following definitions will

be used:

Hypoxemia: Decreased oxygen

content in blood

Hypoxia: Decreased level of

oxygen in tissue

Acidemia: Increased concentration

of hydrogen ions in the

blood

Acidosis: Increased concentration

of hydrogen ions in

tissue

Asphyxia: Hypoxia with metabolic

acidosis

The bulletin later makes the following pertinent statements about

interpretation of FHR patterns:

Variable decelerations are the most common

decelerations seen in labor and indicate

umbilical cord compression; they are

generally associated with a favorable

outcome. Only when they become persistent,

progressively deeper, and longer lasting are

they considered nonreassuring. Although

progression is more important than absolute

parameters, persisting variable decelerations

to less than 70 bpm lasting greater than 60

seconds are generally concerning. In

addition to prolonged and deep variable

decelerations, those with persistently slow

return to baseline are also considered

nonreassuring, as these reflect hypoxia

persistent beyond the relaxation phase of the

contraction. The response of the baseline

FHR to the variable decelerations and the

presence or absence of accelerations are

important in formulating a management plan

for the patient with significant variable

decelerations. When nonreassuring variable

decelerations are associated with the

development of tachycardia and loss of

variability, one begins to see substantial

correlation with fetal acidosis.

Late decelerations may be secondary to

transient fetal hypoxia in response to the

decreased placental perfusion associated with

uterine contractions. Occasional or

intermittent late decelerations are not

uncommon during labor. When late

decelerations become persistent ( ie, present

with most contractions), they are considered

nonreassuring, regardless of the depth of the

deceleration. Later decelerations caused by

reflex--those mediated by the CNS [central

nervous system]--generally become deeper as

the degree of hypoxia becomes more severe.

However, as metabolic acidosis develops from

tissue hypoxia, late decelerations are

believed to be the result of direct

myocardial depression, and at this point, the

depth of the late deceleration will not

indicate the degree of hypoxia.

A prolonged deceleration, often incorrectly

referred to as bradycardia, is an isolated,

abrupt decrease in the FHR to levels below

the baseline that lasts at least 60-90

seconds. These changes are always of concern

and may be caused by virtually any mechanism

that can lead to fetal hypoxia. The severity

of the event causing the deceleration is

usually reflected in the depth and duration

of the deceleration, as well as the degree to

which variability is lost during the

deceleration. When such a deceleration

returns to the baseline, especially with more

profound episodes, a transient fetal

tachycardia and loss of variability may occur

while the fetus is recovering from hypoxia.

The degree to which such decelerations are

nonreassuring depends on their depth and

duration, loss of variability, response of

the fetus during the recovery period, and,

most importantly, the frequency and

progression of recurrence. (Footnotes

omitted.)

The bulletin goes on to discuss evaluation and management of

nonreassuring patterns:

With a persistently nonreassuring FHR pattern

in labor, the clinician should approach the

evaluation and management in a four-step plan

as follows:

1. When possible, determine the

etiology of the pattern.

2. Attempt to correct the pattern

by specifically correcting the

primary problem or by

instituting general measure

aimed at improving fetal

oxygenation and placental

perfusion.

3. If attempts to correct the

pattern are not successful,

fetal scalp blood pH assessment

may be considered.

4. Determine whether operative

intervention is warranted and,

if so, how urgently it is

needed.

The search for the cause of the nonreassuring

FHR pattern should be directed by the

clinician's interpretation of the pattern.

. . . For severe variable or prolonged

decelerations, a pelvic examination should be

performed immediately to rule out umbilical

cord prolapse or rapid descent of the fetal

head. If no causes of such decelerations are

found, one can usually conclude that

umbilical cord compression is responsible.

General measures that may improve fetal

oxygenation and placental perfusion include

administering maternal oxygen by a tight-

fitting mask, ensuring that the woman is in

the lateral recumbent position, discontinuing

oxytocin, and, if maternal intravascular

volume status is in question, beginning

intravenous hydration.

After discussing administration of oxygen to the mother, which

was done in this case, the bulletin goes on to make the following

pertinent observations about maternal position, epidural block,

oxytocin, and amnioinfusion:

Maternal Position

Maternal position during labor can affect

uterine blood flow and placental perfusion.

In the supine position, there is an

exaggeration of the lumbar lordotic curvature

of the maternal spine facilitating

compression of the vena cava and aortoiliac

vessels by the gravid uterus. This results

in decreased return of blood to the maternal

heart leading directly to a fall in cardiac

output, blood pressure, and uterine blood

flow. In the supine position, aortic

compression by the uterus may result in an

increase in the incidence of late

decelerations and a decrease in fetal scalp

pH. The lateral recumbent position (either

side) is best for maximizing cardiac output

and uterine blood flow and is often

associated with improvement in the FHR

pattern. Other maternal positions may

accomplish similar uterine displacement.

Epidural Block

Some degree of maternal hypotension is a

relatively common complication of epidural

block, occurring in 5-25% of procedures.

. . . During the period of hypotension,

uteroplacental perfusion may be compromised.

This may be manifested by fetal tachycardia,

prolonged decelerations, decreased beat-to-

beat variability, late decelerations, or some

combination of these.

The frequency of prolonged decelerations

after administration of epidural analgesia

has been reported to be 7.9-12.5%. Uterine

hypertonia with resultant prolonged

decelerations has been observed in patients

receiving epidural block during labor even in

the absence of systemic hypotension.

Management of epidural-associated

decelerations should focus on treatment of

the specific cause--either the increased

uterine tone or maternal hypotension.

Oxytocin

Careful use of oxytocin is necessary to

minimize uterine hyperstimulation and

potential maternal and fetal morbidity. If

nonreassuring FHR changes occur in patients

receiving oxytocin, the infusion should be

decreased or discontinued. Restarting the

infusion at a lower rate or increasing it in

smaller increments may be better tolerated.

Amnioinfusion

Variable decelerations are frequently

encountered in both the first and second

stages of labor. Those occurring prior to

fetal descent at 8-9 cm of dilatation are

most frequently seen in patients with

oligohydramnios.

In patients with decreased amniotic fluid

volume in either preterm or term pregnancies,

replacement of amniotic fluid with normal

saline infused through a transcervical

intrauterine pressure catheter has been

reported to decrease both the frequency and

severity of variable decelerations.

Replacement of amniotic fluid may be elected

therapeutically in patients with progressive

variable decelerations. Although randomized,

controlled trials are lacking, it is

reasonable to replace amniotic fluid

prophylactically at the onset of labor in

patients with known oligohydramnios. Studies

also have demonstrated that amnioinfusion

results in reductions in rates of cesarean

delivery for "fetal distress," primarily due

to variable decelerations, and fewer low

Apgar scores at birth. Acute saline

amnioinfusion has been reported to be an

effective therapy that relieves most

repetitive variable or prolonged intrapartum

decelerations and is without apparent

maternal or fetal risk. Investigators have

also reported a decrease in newborn

respiratory complications from meconium in

patients who receive amnioinfusion. This

results presumably from the dilutional effect

of amnioinfusion and possibly from prevention

of in utero fetal gasping that may occur

during episodes of hypoxia caused by

umbilical cord compression. (Footnotes

omitted.)

Finally, the bulletin discusses management of persistent

nonreassuring FHR patterns as follows:

If the FHR pattern remains uncorrected, the

decision to intervene depends on the

clinician's assessment of the likelihood of

severe hypoxia and the possibility of

metabolic acidosis, as well as the estimated

time to spontaneous delivery. For the fetus

with persistent nonreassuring decelerations,

normal FHR variability and the absence of

tachycardia generally indicate the lack of

acidosis. However, variability is difficult

to quantify except in the extremes.

Persistent late decelerations or severe

variable decelerations associated with the

absence of variability are always

nonreassuring and generally require prompt

intervention unless they spontaneously

resolve or can be corrected rapidly with

immediate conservative measures (i.e.,

oxygen, hydration, or maternal

repositioning). The absence of variability

or markedly decreased variability

demonstrated on an external monitor is

generally reliable. The presence of FHR

variability is not confirmatory, however,

and, in the presence of nonreassuring

decelerations, a fetal electrode should be

placed when possible.

The presence of spontaneous accelerations of

greater than 15 bpm lasting at least 15

seconds virtually always ensures the absence

of fetal acidosis. Fetal scalp stimulation

or vibroacoustic stimulation can be used to

induce accelerations; these also indicate the

absence of acidosis. Conversely, there is

about a 50% chance of acidosis in the fetus

who fails to respond to stimulation in the

presence of an otherwise nonreassuring

pattern. In these fetuses, assessment of

scalp blood pH, if available, may be used to

clarify the acid-base status. This

technique, while occasionally helpful, is

used uncommonly in current obstetric

practice. If the FHR pattern remains

worrisome, either induced accelerations or

repeat assessment of scalp blood pH is

required every 20-30 minutes for continued

reassurance. In cases in which the FHR

patterns are persistently nonreassuring and

acidosis is present or cannot be ruled out,

the fetus should be promptly delivered by the

most expeditious route, whether abdominal or

vaginal. (Footnotes omitted.)

78. Another publication accepted by the experts as

authoritative was an article by Drs. Low and Victory called

"Predictive Value of Electronic Fetal Monitoring for Intrapartum

Fetal Asphyxia with Metabolic Acidosis" published in Obstetrics

and Gynecology , February 1999 (the Low article). The Low article

reported the results of a matched case-control study of 71 births

with and 71 births without asphyxia. The Low article's

discussion of the results of the study stated in part:

The unnecessary intervention reported in

previous randomized clinical trials is

understandable in view of the results of this

study. Interpretation of FHR records is

complicated by false-positive FHR patterns.

Because predictive FHR patterns are not

specific and fetal asphyxial exposure is an

infrequent event, the positive predictive

values of these findings were low, ranging

from 18% for the most specific pattern to

2.6% when all predictive patterns were

included. Because of the large number of

false-positive patterns, the potential for

unnecessary clinical intervention is great.

This study demonstrates that the prediction

of fetal asphyxial exposure by FHR patterns

is possible, but difficult. There is a

narrow window of 1 hour before diagnosis when

FHR patterns will predict a pronounced

metabolic acidosis. If the goal is to

predict fetal asphyxial exposure before

decompensation, one cannot wait for evidence

of absent baseline variability. At this

stage, the asphyxial exposure is moderate or

severe, with substantial newborn morbidity.

Asphyxial exposure must be considered if two

or more cycles of minimal baseline

variability and late or prolonged

decelerations are observed in the record.

Even these criteria will not identify all

cases of asphyxial exposure. In the asphyxia

group, ten infants had a single cycle of

minimal baseline variability or late or

prolonged decelerations, and four had no

predictive FHR variables. The asphyxial

exposure was mild in these latter cases.

* * *

During labor and delivery, fetal asphyxial

exposure occurs in 2% and moderate and severe

exposure in less than 0.3% of pregnancies.

The goal of intrapartum fetal surveillance is

to reduce the incidence of asphyxial exposure

and to prevent moderate and severe asphyxial

exposure. Electronic fetal monitoring with

the identification of predictive FHR patterns

can be a useful screening test in intrapartum

surveillance for fetal asphyxia. The

identification of predictive FHR patterns

requires continuous scoring of FHR records

because of the narrow 1-hour window of these

patterns with developing metabolic acidosis.

Predictive FHR patterns require supplementary

tests such as fetal blood gas and acid-base

assessment to confirm the diagnosis of fetal

asphyxia and to identify the false-positive

results to avoid unnecessary intervention.

The Low article defined "prolonged" decelerations as

decelerations lasting from 120 to 300 seconds. "Cycles"

consisted of ten-minute increments of time during the last four

hours of labor.

79. Dr. Shulman defined a deceleration as a 15-bpm decline

in FHR lasting at least 15 seconds. According to Dr. Shulman's

definitions, a deceleration from 120 to 90 bpm would be called

"mild-to-moderate" if it lasted 45 seconds. A deceleration below

70 bpm would be termed "severe" even if it lasted only 30

seconds, according to Dr. Shulman, as it could result in oxygen

deprivation. Dr. Shulman defined a "prolonged" deceleration as

one lasting more than 60-90 seconds, measured from onset to

return to baseline.

80. Initially, Dr. Yelverton defined a "prolonged"

deceleration as a decline of 30 or more bpm lasting 120 or more

seconds. Later, he accepted the ACOG Technical Bulletin 207

definition of 60-90 seconds used by Dr. Shulman. However, Dr.

Yelverton measures the duration of a deceleration from beginning

to end of the nadir plateau. If that measurement does not exceed

60 seconds, Dr. Yelverton would not call the deceleration

"prolonged" even if it took considerably longer for the FHR to

return to baseline. He would characterize such a deceleration as

a "classic variable deceleration with a slow return to baseline."

81. Respondent defined a "prolonged" variable deceleration

as one that drops to 70 bpm or less and does not exceed 70 bpm

for 90 seconds or more.

82. Dr. Shulman reserved his most serious criticism of

Respondent until her visit to bedside at 12:58 p.m. Regardless

of differences of opinion as to nomenclature and the seriousness

of the early variable decelerations, Dr. Yelverton conceded that,

by that point in time, the FHR patterns were becoming

nonreassuring. Dr. Schulman believed that it was necessary to

stop Pitocin and begin preparations for a Cesarean at that time

since repositioning, maternal oxygenation, and amnioinfusion had

not stopped the variable decelerations. In his view, there

already had been enough variable decelerations of sufficient

amplitude and duration. Respondent and Dr. Yelverton disagreed.

They thought caution was required but that labor toward a vaginal

delivery still could proceed at that point.

83. Respondent and Dr. Yelverton were critical of Dr.

Shulman for not correlating the FHR monitoring strip with

information other than the uterine contractions being recorded on

the strip that could help explain some of the variable

decelerations. For example, progress notes and other information

in the record indicate various reasons why the patient was being

repositioned from time-to-time, either causing or relieving cord

compression. Similarly, the administration of epidural

medication can affect FHR patterns. But regardless of the reason

for variable decelerations, they can have an adverse effect on

the fetus, especially if they are severe or prolonged or

persistent. With good reason, Dr. Shulman was impressed with the

amplitude, duration, and persistence of the variable

decelerations regardless of their cause.

84. Dr. Shulman's view of the case reflected an

unwillingness to accept much risk of compromise of the fetus as a

result of metabolic acidosis. Since metabolic acidosis is

difficult to predict, short of loss of baseline variability, Dr.

Shulman would be inclined to "bail out" and do a Cesarean after

two or three of what he termed "prolonged" or "severe" variable

decelerations. Although it could not be determined with

certainty, he would be fearful that the FHR patterns signified

hypoxia and that, by 12:58 p.m., the cumulative effects could

result in metabolic acidosis without much additional warning.

85. Respondent and Dr. Yelverton disagreed. They thought

it was appropriate for Respondent to observe the patient until

approximately 1:15 p.m., as she did. There was some improvement

in the tracing by the time Respondent left the patient's bedside,

and both Respondent and Dr. Yelverton thought it was acceptable

to proceed further toward vaginal delivery at that point, with an

admonition to the residents to watch the tracings closely and

notify Respondent if they deteriorated. (It is noted that Dr.

Yelverton, at least, also would not have criticized a doctor who

opted for a Cesarean at 12:58 p.m.)

86. Notwithstanding the testimony of Dr. Shulman, it is

found that a Cesarean was not mandatory at 1:15 p.m. There was

some improvement in the strip during Respondent's bedside visit,

and the evidence was not sufficient to prove that no reasonably

prudent physician would have allowed labor to continue. However,

as Respondent acknowledged in her instructions to the residents,

the team should have been very concerned about the tracings,

should have monitored the tracings and the condition of the fetus

closely, and should have been prepared to intervene promptly if

not reassured as labor progressed.

87. Dr. Shulman also believed that it was mandatory to

cease Pitocin at 12:58 p.m. Respondent and Dr. Yelverton, on the

other hand, emphasized the low dosage of Pitocin being

administered at the time (3 mIU's). They also noted that the

patient's contractions were not very strong, and there was no

evidence of uterine hypertonis. They did not see a clear, direct

connection between the Pitocin and the FHR. Under these

circumstances, it is found that, notwithstanding Dr. Shulman's

testimony, it was not mandatory to stop Pitocin by 1:15 p.m. even

though Pitocin is relatively contraindicated if the FHR is

nonreassuring. However, they should have been prepared to stop

Pitocin if not reassured as labor progressed.

88. Although the FHR tracings again became nonreassuring

after Respondent left the patient's bedside, Respondent was not

notified until sometime after baseline variability was lost at

approximately 2 p.m. The reason for the delay is not clear from

the evidence but probably was at least in part due to

Respondent's being occupied with the care of another patient who

required a Cesarean in this general time period. (Reference to

the other patient was general; there was no evidence as to

specifics at to the time or nature of the other Cesarean.)

89. Respondent and her expert conceded that Pitocin should

have been discontinued when the FHR lost baseline variability.

Dr. Yelverton also conceded that a Cesarean should have been

initiated no more than ten minutes later. However, Respondent's

culpability for not discontinuing Pitocin and initiating a

Cesarean at that time is complicated by questions as to when

Respondent became aware of the loss of baseline variability. See

Findings 56-58, supra .

90. Respondent also testified that, when she arrived at

bedside at 2:40 p.m., she assumed Pitocin already had been

discontinued by the nursing staff in accordance with a hospital

protocol for nurses. Respondent testified that she thought there

was a protocol requiring the nurses to discontinue Pitocin when a

doctor ordered a fetal scalp blood pH. In fact, the protocol

cited by Respondent did not address sampling for a fetal scalp

blood pH. It does, however, provide for discontinuance of

oxytocin immediately "if significant nonreassuring FHR patterns

occur, i.e., late or prolonged decelerations, bradycardia."

Based on the FHR tracings, it would have been reasonable for

Respondent to assume that the nursing staff had discontinued

Pitocin by the time Respondent arrived at bedside at 2:40 p.m.

91. Besides the hospital protocol for oxytocin, the dosage

of Pitocin still was only 5 mIU's, and the patient's contractions

still were not especially strong. At the same time, Respondent

was occupied taking other actions on behalf of the patient. See

Finding 88, supra . Under these circumstances, it is

understandable and excusable that Respondent might not notice the

Pitocin and discontinue it. It is not found that her failure to

discontinue Pitocin immediately at 2:40 p.m. or during efforts to

deliver vaginally constituted a "failure to practice medicine

with that level of care, skill, and treatment which is recognized

by a reasonably prudent similar physician as being acceptable

under similar conditions and circumstances."

92. Even assuming Respondent's version of the circumstances

leading to her coming to the patient's bedside at 2:40 p.m., the

evidence was clear and convincing that, at that time, she became

aware of the tracing strip showing no baseline variability since

approximately 2 p.m. Consistent with his belief that Respondent

already should have proceeded to a Cesarean, Dr. Shulman believed

that it was necessary to do so immediately at 2:40 p.m. Dr.

Yelverton also testified that a Cesarean should have been

initiated no later than 2:15 p.m. However, he excused

Respondent's decisions and actions after her arrival at bedside.

93. As reflected in Dr. Yelverton's testimony, it is

difficult to second-guess a doctor's clinical judgment in such

circumstances. Respondent examined the patient; judged the

patient to be fully effaced and dilated to nine centimeters; and

judged the fetus to be at "zero station," i.e. , in mid-pelvis.

Given the patient's two previous vaginal deliveries, it was

Respondent's judgment that a relatively quick, assisted vaginal

delivery was possible. If she was right, her decision would have

been best for the baby (as well as the patient). However, the

baby's head position was not favorable for the hoped-for outcome.

Respondent's choice was risky, and failure would compound the

distress of the fetus and delay the Cesarean. In hindsight, it

is clear that Respondent made the wrong decision in trying for an

assisted vaginal delivery instead of proceeding immediately to a

Cesarean delivery. But under all of the circumstances, it is not

found that Respondent's decision constituted a "failure to

practice medicine with that level of care, skill, and treatment

which is recognized by a reasonably prudent similar physician as

being acceptable under similar conditions and circumstances."

94. It also cannot be found that Respondent's decisions

alone resulted in the negative outcome in this case. It appears

from the evidence that events occurring after the Cesarean

delivery caused further damage to the baby. See Findings 69-74,

supra . It appears from the evidence that, absent the unfortunate

subsequent events, permanent brain damage may not have resulted.

CONCLUSIONS OF LAW

95. Section 458.331(1)(t), Florida Statutes, authorizes the

Board of Medicine to discipline a physician on proof of:

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 physician as being

acceptable under similar conditions and

circumstances.

96. Section 458.331(3), Florida Statutes, provides:

In any administrative action against a

physician which does not involve revocation

or suspension of license, the division shall

have the burden, by the greater weight of the

evidence, to establish the existence of

grounds for disciplinary action. The

division shall establish grounds for

revocation or suspension of license by clear

and convincing evidence.

Petitioner concedes that its burden in this case was to prove the

allegations by clear and convincing evidence. See also Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987). (Even though

Petitioner's Proposed Recommended Order only sought imposition of

a fine and probation, the Amended Administrative Complaint sought

revocation or suspension.)

97. In this case, the poor outcome resulted in part from

Respondent's misjudgments and willingness to accept more risk of

metabolic acidosis than Dr. Shulman. Nonetheless, Petitioner did

not prove by clear and convincing evidence that Respondent failed

to "practice medicine with that level of care, skill, and

treatment which is recognized by a reasonably prudent similar

physician as being acceptable under similar conditions and

circumstances."

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Board of Medicine enter a final order

finding Respondent not guilty.

DONE AND ENTERED this 3rd day of July, 2000, in T allahassee,

Leon County, Florida.

___________________________________

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-96 75 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of July, 2000.

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Agency for Health Care Administration

Post Office Box 14229

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401 East Jackson Street, Suite 2700

Tampa, Florida 33602-2378

Angela T. Hall, Agency Clerk

Department of Health

Bin A02

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Tallahassee, Florida 32399-1703

William W. Large, General Counsel

Department of Health

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1701

Tanya Williams, Executive Director

Board of Medicine

1940 North Monroe Street

Tallahassee, Florida 32399-0750

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.