00-004396PL Department Of Health, Board Of Medicine vs. Carl W. Liebert, Jr., M.D. Status: Closed Recommended Order on Wednesday, August 1, 2001.

Summary: Board failed to present convincing evidence that Respondent failed to practice medicine with level of care, skill, and treatment which is recognized by a reasonable prudent similar physician as being acceptable under similar conditions and circumstances.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner , )

)

vs. ) Case No. 00-4396PL

)

CARL W. LIEBERT, JR., M.D. , )

)

Respondent. )

____________________________________)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law

Judge for the Division of Administrative Hearings, held a

formal hearing in this matter on March 6, 2001, in Naples,

Florida.

APPEARANCES

For Petitioner : Robert C. Byerts, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent : Ralph L. Marchbank, Jr., Esquire

Post Office Box 3979

Sarasota, Florida 34230

STATEMENT OF THE ISSUE

Did the Respondent commit the violations alleged in the

Amended Administrative Complaint dated March 2, 2001, and if

so, what penalty should be imposed?

PRELIMINARY STATEMENT

By an Administrative Complaint dated August 30, 2000, and

filed with the Division of Administrative Hearings (Division)

on October 25, 2000, and amended by order dated March 1, 2001,

the Department of Health, Board of Medicine (Board) is seeking

to revoke, suspend, or otherwise discipline Respondent's

license to practice medicine in the State of Florida.

As grounds therefor, the Board alleges that Respondent

violated Section 458.331(1)(t), Florida Statutes, by failing

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, with regard to a patient known as E. T., in

that he failed to: (a) personally examine E. T. in order to

evaluate the ongoing bleeding process; or (b) admit E. T. to

the hospital until such time that Respondent could personally

examine E. T. to evaluate the ongoing bleeding process; or (c)

order an ultrasound or other radiographic imaging of the groin

vessels to evaluate for a possible surgical bleeding

complication.

By an Election of Rights filed with the Board, Respondent

denied the allegations contained in the Administrative

Complaint and requested a formal administrative hearing.

Respondent has also denied all the allegations contained in

the Amended Administrative Complaint.

By letter dated October 25, 2000, the Board referred this

matter to the Division for the assignment of an Administrative

Law Judge and for the conduct of a formal hearing.

At the hearing, the Board presented the testimony of

Eunice Terrenzi and Robert Mullert, M.D. The Board also

presented a copy of the videotape and a copy of the transcript

of the videotaped deposition of Michael J. Cohen, M.D., in

lieu of his live testimony at the hearing. The Board’s

Exhibits 1-5 were admitted in evidence. Respondent testified

in his own behalf and presented the testimony of Jonathan

Wideroff, M.D. Respondent's Exhibits 1-2 were admitted in

evidence. Section 458.331, Florida Statutes, and Rule 59R-

8.001, Florida Administrative Code, were officially

recognized.

At the conclusion of the hearing, the parties requested

that they be given 30 days from the date the transcript of

this proceeding was filed with the Division to file their

proposed findings of fact and conclusions of law. The

parties' request was granted with the understanding that any

time constraint imposed under Rule 28-106.216(1), Florida

Administrative Code, was waived in accordance with Rule 28-

106.216(2), Florida Administrative Code. A transcript of this

proceeding was filed with the Division on March 29, 2001.

Subsequent to the filing of the transcript, Respondent filed

an unopposed Motion to Extend Submission of Proposed or

Recommended Order, which was granted with the understanding

that any time constraints imposed under Rule 28.106.216(1),

Florida Administrative Code, was waived in accordance with

Rule 28.106-216(2), Florida Administrative Code. The parties

timely filed their proposed findings of fact and conclusions

of law under the extended time frame.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence

adduced at the hearing, the following relevant findings of

fact are made:

1. The Board is the agency charged with regulating the

practice of medicine in the State of Florida.

2. Respondent, Carl W. Liebert, Jr., M. D. (Dr. Liebert)

is and, at all times material hereto, has been licensed to

practice medicine in the State of Florida, having been issued

license number ME0047601. Respondent is Board-certified in

surgery.

3. On January 29, 1997, Respondent performed an

abdominal aortic aneurysm repair and an aortobifemoral graft

on E. T., a male patient, approximately 70 years of age.

4. The site of the graft for the left femoral artery

intruded partially upon the site of a previous graft of the

femoral artery performed in 1986. This graft failed

immediately after the procedure. Respondent sutured the graft

at the left femoral artery partially into old scar tissue from

the 1986-failed graft.

5. After the surgery, on the Sunday before his release

from the Naples Community Hospital (Hospital) on Thursday,

February 6, 1997, E. T. suddenly and abruptly fell in his

hospital room. Respondent was concerned about the possible

damage this fall may have caused to the surgical repair.

Although E. T. experienced pain in his left groin area, the

location of one of the aortobifemoral grafts, while in the

Hospital, there is no evidence that any harm resulted from the

fall or that the pain was a result of the fall.

6. After the surgery, during E. T.'s stay in the Naples

Community Hospital (Hospital), there was lymphatic drainage, a

pinkish colored fluid, from the incision in his left groin.

While the lymphatic fluid may have been blood stained

resulting in the pinkish color, the lymphatic drainage was not

as described in the nurse's notes as being "a bloody

discharge."

7. On Thursday, February 6, 1997, E.T. was discharged from

the Hospital. After E. T.'s discharge from the Hospital, his

wife cared for him in their home in Naples, Florida.

8. As expected by Dr. Liebert, the incision in E. T.'s

left groin area continued to have lymphatic drainage after

E. T.'s discharge from the Hospital. The incision in E. T.'s

left groin area continued to drain a pinkish colored fluid.

9. The lymphatic drainage from the incision in E. T.’s

left groin continued over the weekend and on Monday ,

February 10, 1997, E. T.'s wife contacted Respondent's office

to advise Respondent of the drainage and of the pain E. T. was

experiencing. Although E. T.'s wife did not speak directly to

Respondent, she assumed that the person to whom she spoke with

over the telephone conveyed her message to Respondent.

E. T.'s wife was given a prescription for Percocet for pain

and told that Respondent would see E. T. in his office on

Thursday, February 13, 1997.

10. On Wednesday, February 12, 1997, while showering and

cleansing the incision on his left groin, E. T. inadvertently

disturbed the incision on his left groin, which caused the

incision to drain profusely. After leaving the shower ,

E. T.'s wife assisted E. T. in drying-off his body and

controlling the drainage from the incision.

11. The wife stemmed the flow of the drainage with a

towel and called the Collier County Emergency Medical Services

(EMS) and Respondent's office. The wife explained to the

person answering Respondent's telephone, the circumstances of

the occurrence with E. T., and that she had called the Collier

County EMS personnel. The wife also requested that Respondent

come to the Hospital.

12. On February 12, 1997, in response to E. T.'s wife's

call, the Collier County EMS personnel responded to E. T.'s

home at approximately 7:25 a.m., performed an initial

treatment for the drainage from E.T.'s left groin and

transported E. T. by ambulance to the Hospital. The EMS

personnel noted that E. T. complained of bleeding and it was

their initial impression that E. T. was bleeding from his

femoral artery. However, the EMS personnel did not confirm

that E. T. was bleeding from his left femoral artery. The EMS

personnel also noted what they considered to be a large amount

of thick, clotty blood, which they estimated to be

approximately 1000 milliliters (ml's) or 1000 cubic

centimeters (cc's), surrounding E. T.

13. Based on the records of the EMS personnel and on

E. T.'s description given to Dr. Mulert, E. T.'s wife's

testimony that the incision spurted blood for approximately 3-

4 feet appears to be somewhat exaggerated.

14. The EMS personnel, assuming that E. T. had recently

loss blood, administered 300 cc of fluid intravenously to

E. T. When the EMS personnel attempted to move E. T., the

drainage from the incision started again, but was controlled

with a trauma dressing and pressure applied by a sandbag.

15. The EMS personnel presented E. T. at the Emergency

Room (ER) of the Hospital at approximately 7:52 a.m. on

February 12, 1997. The ER nurse noted that a pressure

dressing along with a sandbag had been applied and that the

drainage or bleeding was under control.

16. The ER nurse drew blood from E. T. and noted in her

record that it was for a "type and cross" in preparation for a

blood transfusion should one become necessary. However ,

Dr. Robert Mulert, the ER physician who attended E. T. while

in the ER, noted in his records that he had requested a "type

and hold," a less elaborate procedure than a "type and cross,"

which requires checking the antibodies and making sure the

blood in question is compatible blood. Based on his estimate

of E. T.'s blood loss and E. T.'s vital signs and other health

conditions, Dr. Mulert did not consider E. T. as a patient in

need of a blood transfusion.

17. Upon E. T.'s arrival at the Hospital, Dr. Mulert

made a brief assessment of E. T.'s condition to confirm that

there was no active bleeding and that the patient did not need

emergent intervention.

18. Although Dr. Mulert is not a vascular surgeon or

even a general surgeon, he has one year of residency training

in surgery and is a Board-certified emergency room physician

who has been working as an emergency room physician for

approximately 27 years. Dr. Mulert is qualified to examine

patients such as E. T. and advise the primary treating

physician of his findings. Dr. Liebert has worked with, and

relied on, Dr. Mulert's expertise as an emergency room

physician in treating many of his patients who are presented

at the Hospital for emergency treatment for approximately 15

years.

19. Dr. Mulert discussed E. T.'s condition by telephone

with Dr. Liebert on two separate occasions during E. T.'s

visit to the Hospital on February 12, 1997. The first

occasion was shortly after E. T. was admitted to the Hospital

ER. During this first occasion, Dr. Mulert advised Dr.

Liebert that his patient, E. T. had been admitted to the

Hospital with a reported acute hemorrhaging or bleeding of the

incision in the area of his left groin and that E. T.'s wife

was asking for Dr. Liebert.

20. In some instances, the primary physician will assume

treatment at this juncture. However, it is not unusual for

the ER physician to continue treatment.

21. The decision was for Dr. Mulert to continue

treatment and to keep Dr. Liebert advised as to E. T.'s

condition.

22. There is nothing in the record to indicate

Dr. Liebert's location on the morning of February 12, 1997;

nor is there any evidence to indicate that Dr. Liebert was

prevented from examining E. T. on the morning of February 12,

1997.

23. Also, during this first discussion, Dr. Mulert

advised Dr. Liebert, based on the information that he had

gathered, that E. T.'s blood loss was approximately 500 cc's

but that there was no active bleeding at that time.

24. Dr. Mulert also advised Dr. Liebert that he intended

to deal with the patient's problems by proceeding with his

plan to assess E. T.'s blood count, to monitor E.T.'s vital

signs, and to see if the patient met Dr. Mulert's criteria for

stability : Can he get up? Can he walk? Can he talk? Does

the patient make sense? Does the patient have discharge

stability?

25. Subsequent to this first discussion, Dr. Mulert made

a more detailed examination of the wound to determine if the

wound was infected, the depth of the wound, and the need to

pack the wound with sterile dressing, etc.

26. After reviewing the EMS personnel records, E. T.'s

history, talking with E. T., and reviewing the results of his

examination, Dr. Mulert's impression was that E. T. had a

hematoma under a surgical wound; that the wound had come

apart; and that the collection of blood (old blood) within the

hematoma had expressed from that surgical wound. The blood

within the hematoma is referred to as "old blood" in that it

was no longer in the vascular system and was not being

replenished with oxygen.

27. While E. T.'s vital signs were low compared to his

vital signs taken while in the Hospital on visits prior to

February 12, 1997, they were not significantly lower and were

within a normal range for a patient, such as E. T., who was on

beta blockers. E. T.'s vital signs were inconsistent with an

aggressive femoral graft leak.

28. The hematocrit and hemoglobin values on

February 12, 1997, were slightly lower than the hematocrit and

hemoglobin values while in the hospital during his most recent

visit in January 1997. However, based on the testimony of

Dr. Liebert, which I find to be credible, that was to be

expected since E. T. had been given a significant amount of

auto-transfused blood during his surgery on January 29, 1997.

Also, the lower values were consistent with a 500 cc or less

blood loss by a patient that had just recently undergone

surgery.

29. During either the first or second conversation,

Dr. Mulert advised Dr. Liebert that the surgical site had come

apart.

30. During his care of E. T., Dr. Mulert became aware

that Dr. Liebert had performed an abdominal aortic aneurysm

repair earlier in the year, and that the repair was under the

nine-inch incision on E. T.’s left groin but did not know the

exact location of the repair.

31. If Dr. Liebert made a diagnosis, he did not convey

such diagnosis to Dr. Mulert.

32. Neither Dr. Liebert nor Dr. Mulert discussed or made

a differential diagnosis. However, it was the testimony of

both Dr. Mulert and Dr. Liebert, which I find to be credible,

that based on the facts presented in respect to E. T. by

Dr. Mulert, a differential diagnosis was unnecessary. A

differential diagnosis is a mechanism physicians use to

identify and evaluate possible alternative causes for observed

symptoms.

33. During the second telephone conversation, Dr. Mulert

advised Dr. Liebert that the patient had been stable for

approximately four hours, that his vital signs were within

normal ranges, that his blood counts were basically unchanged,

that there was no active bleeding and had not been any active

bleeding for approximately four hours, that the patient was up

and walking around the ER, that the patient was asymptomatic

when vertical that the patient was not orthostatic when

walking, that the patient wanted to go home, and that the

incision in the left groin area needed to be repaired.

34. There was no discussion between Dr. Mulert and

Dr. Liebert concerning the admission of E. T. to the Hospital

for the purpose of further examining the possibility of

arterial bleeding.

35. Ultrasound and computerized tomography (CT) were

available to patients at the Hospital. While these tests

don't always "rule out" internal bleeding or suture line

disruptions, they can, in certain instances, "rule in" these

conditions. Based on the facts in respect to E. T.'s

condition presented by Dr. Mulert on February 12, 1997,

particularly that they were dealing with an open wound, and

Dr. Liebert's feelings as to the somewhat limited use of these

tests in this type situation, there was no ultrasound or CT

scan performed.

36. Based on the facts in respect to E. T.'s condition

as presented by Dr. Mulert on February 12, 1997, the failure

of Dr. Liebert to utilize the ultrasound or CT scan to further

examine E. T. in regard to arterial bleeding does not

constitute the failure to practice medicine with that level of

care, skill, and treatment which is recognized by a reasonable

prudent similar physician as being acceptable under similar

conditions and circumstances, notwithstanding the testimony of

Michael J. Cohen, M.D. to the contrary.

37. Subsequently, Dr. Mulert sewed up the incision which

had come apart.

38. Dr. Liebert did not personally examine E. T. at any

time while he was in the ER to evaluate the cause of E. T.'s

problem in relation to arterial bleeding, but relied on

Dr. Mulert to provide him with facts surrounding E. T.'s

condition based on Dr. Mulert's examination of E. T. and his

assessment of E.T.'s problem.

39. Based on the facts in respect to E. T.'s condition

in relation to arterial bleeding as presented by Dr. Mulert on

February 12, 1997, the failure of Dr. Liebert to personally

examine E. T. prior to his discharge or to delay E. T.'s

discharge so as to allow time for Dr. Liebert personally

examine E. T. to determine for himself E. T.'s problem in

relation to arterial bleeding does not constitute the failure

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

treatment which is recognized by a reasonable prudent similar

physician as being acceptable under similar conditions and

circumstances, notwithstanding the testimony of Michael J.

Cohen, M.D. to the contrary.

38. E. T. was discharged from the Hospital at

approximately 12:00 noon on February 12, 1997.

38. After his discharge on February 12, 1997, E. T. had

an uneventful afternoon and evening.

39. After getting out of his bed on the morning of

February 13, 1997, E. T. walked from his bedroom into the

kitchen and as he stood in the kitchen the left groin incision

erupted again, hemorrhaging blood onto the kitchen floor.

40. The EMS personnel were called responded to the call

around 5:30 a.m. Prior to the arrival of the EMS personnel

the bleeding had stopped. The EMS personnel noticed a

moderate blood loss. The EMS personnel dressed the left groin

wound, administered fluids and transported E. T. to the

Hospital where he was admitted to the ER at approximately 6:00

a.m.

41. Although E. T. received blood and fluids, his

condition deteriorated rapidly and E. T. expired at

approximately 7:24 a.m. on February 13, 1997.

42. No autopsy was performed. However, the cause of

death was most likely myocardial infarction that resulted from

a loss of blood.

CONCLUSIONS OF LAW

43. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Section 120.57(1), Florida Statutes.

44. The burden of proof is on the party asserting the

affirmative of an issue before an administrative tribunal,

Florida Department of Transportation v. J.W.C. Company, Inc. ,

396 So. 2d 778 (Fla. 1st DCA 1981). The Board has the burden

of proof in this proceeding. To meet its burden, the Board

must establish facts upon which its allegations are based by

clear and convincing evidence. Department of Banking and

Finance, Division of Securities and Investor Protection v.

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

120.57(1)(j) and 458.331(3), Florida Statutes (2000).

45. Section 458.331(1)(t), (2) Florida Statutes,

provides in pertinent part as follows:

Grounds for disciplinary action; action by

the board and department.

(1 ) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(t ) Gross or repeated malpractice or the

failure to practice medicine with that

level of care, skill, and treatment which

is recognized by a reasonable prudent

similar physician as being acceptable under

similar conditions and circumstances . . .

As used in this paragraph, . . . "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" shall

not be construed so as to require more than

one instance, event, or act.

* * *

(2 ) When the board finds any person

guilty of any of the grounds set forth in

subsection (1), . . . it may enter an

order imposing one or more of the following

penalties:

* * *

(b ) Revocation or suspension of a

license.

(c ) Restriction of practice.

(d ) Imposition of an administrative fine

not to exceed $10,000 for each count or

separate offense.

(e ) Issuance of a reprimand.

(f ) Placement of the physician on

probation for a period of time and subject

to such conditions as the board may

specify, including, but not limited to,

requiring the physician to submit to

treatment, to attend continuing education

courses, to submit to reexamination, or to

work under the supervision of another

physician.

(Emphasis furnished.)

46. Without question, hindsight is better than foresight

and I am sure that if Dr. Liebert were faced with this same

situation today his decision would be entirely different.

However, Dr. Liebert is not charged with failure to read the

future but is charged with the failure to practice medicine

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

recognized by a reasonable prudent similar physician as being

acceptable under similar conditions and circumstances. The

Board has failed to meet its burden in this regard.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is recommended that the Board enter a final order

dismissing the Amended A dministrative Complaint dated March 2,

2001.

DONE AND ENTERED this 1st day of August, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of August, 2001.

COPIES FURNISHED:

Robert C. Byerts, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

Ralph L. Marchbank, Jr., Esquire

Post Office Box 3979

Sarasota, Florida 34230

Tanya Williams, Executive Director

Board of Medicine

Department of Health

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0750

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way

Bin A00

Tallahassee, Florida 32399-1701

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald Cypress Way

Bin A00

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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.