01-001807PL Department Of Health, Board Of Medicine vs. Mahesh Allam, M.D. Status: Closed Recommended Order on Wednesday, February 20, 2002.

Summary: Petitioner proved by clear and convincing evidence that Respondent failed to practice medicine in accordance with the general standard of care required.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 01 - 1807PL

)

MAHESH ALLAM, M.D., )

)

Respondent. )

)

RECOMMENDED ORDE R

On September 19, 2001, a formal administrative hearing was

held in Lake Wales, Florida, before William F. Pfeiffer, a duly -

appointed Administrative Law Judge, of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Ephraim D. Livingsto n, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317 - 4229

For Respondent: R. L. Caleen, Jr., Esquire

Watkins & Caleen, P.A.

Post Office Box 15828

Tallahassee, Florida 32317 - 5828

STATEMENT OF THE ISSUE

Whether Respondent's license to practice medicine should be

disciplined for the alleged violations as set forth in

Petitioner's Administrative Complaint.

PRELI MINARY STATEMENT

By Administrative Complaint dated April 2, 2001,

Petitioner, Department of Health, Board of Medicine, alleged

that Respondent, Dr. Mahesh Allam, violated various provisions

within Chapter 458, Florida Statutes, governing the practice of

me dicine in Florida. The Administrative Complaint sought an

order imposing one or more penalties, including revocation or

suspension of Respondent's medical license. The Complaint

contained three counts relating to the medical care Respondent

provided to p atient W.B. on August 6, 1996.

In Count I of the Complaint, Petitioner alleged that

Respondent failed to practice medicine with the level of care,

skill and treatment which is recognized by a reasonably prudent

similar physician as being acceptable under s imilar

circumstances, as required by Subsection 458.331(1)(t), Florida

Statutes. Specifically, Petitioner alleged that Respondent

failed to see Patient W.B. for 11 hours despite the patients

deteriorating condition; he failed to order appropriate tests to

determine the cause of Patient W.B.'s deteriorating condition;

he failed to order consultations for Patient W.B. with a

cardiologist, pulmonologist or an intensivist; and he failed to

order appropriate medications.

In Count II, Petitioner alleged that Res pondent violated

Subsection 458.331(1)(m), Florida Statutes, by failing to keep

written medical records justifying the course of treatment of

Patient W.B. Specifically, Petitioner alleged that Respondent

failed to document the reason for not ordering cons ultations,

medications and/or the reason for not seeing Patient W.B. for 11

hours despite his deteriorating condition.

In Count III of the Complaint, Petitioner alleged that

Respondent violated Subsection 458.331(1)(q), Florida Statutes,

by inappropriately prescribing medications for Patient W.B.

without seeing him and determining the cause of fever and

delirium.

Respondent disputed the allegations in the Complaint and

requested a formal hearing before an Administrative Law Judge of

the Division of Administ rative Hearings. On May 8, 2001,

Petitioner forwarded the Complaint to the Division of

Administrative Hearings. The case was initially set for

August 1 - 3, 2001; however, a joint motion for continuance was

granted and the hearing was reset for September 19 - 21, 2001.

On September 7, 2001, Respondent moved for a protective

order concerning the depositions of Jack Giddings, M.D., and

William Schmidt, M.D. The motion was denied.

At the final hearing on September 19, 2001, Petitioner

presented the test imony of Vanessa McIntosh, a registered nurse;

Stephen J. Nelson, a pathologist and medical examiner; and the

depositions of William Schmidt, M.D., and Jack Giddings, M.D.,

in lieu of live testimony. Petitioner offered eight exhibits,

including Patient W. B.'s complete medical records from the Lake

Wales Medical Center, all of which were received into evidence.

Petitioner also offered a graphic representation of Patient

W.B.'s vital signs and telephone calls between Respondent and

the registered nurses atte nding to Patient W.B. at the Lake

Wales Medical Center. This graphic was received in evidence,

without objection, with the graphic representation prepared by

Respondent as Respondent's Exhibit No. 2.

At the final hearing, Respondent testified on his own

behalf and presented the expert testimony of Willard E. Manry,

M.D., and Vincente S. Verzosa, M.D. Respondent offered four

exhibits into evidence, all of which were admitted.

By stipulation, the parties agreed to file their proposed

recommended orders wi thin 30 days of receipt of the transcript

of hearing. Their Proposed Recommended Orders were timely filed

and have been carefully considered in the rendition of this

Recommended Order.

FINDINGS OF FACT

Based on the testimony and documentary evidence prese nted

at final hearing, and the entire record of this proceeding, the

following findings of fact are determined.

Petitioner: Department of Health

1. Petitioner is the state agency charged with regulating

the practice of medicine pursuant to Section 20.43, and Chapters

456 and 458, Florida Statutes.

Respondent: Dr. Mahesh Allam

2. Respondent, Dr. Mahesh Gandi Allam, is and has been at

all times material to the allegations in the Administrative

Complaint a licensed physician in the State of F lorida, having

been issued License No. ME 64990 on September 7, 1993.

3. Respondent earned his medical degree at the medical

school of the University of the West Indies located at the

University of London. He was employed for one year as the

Medical Dire ctor at the University Hospital of West Indies in

Kingston, Jamaica, followed by a three - year internal medicine

residency at Howard University Hospital in Washington, D.C.

Thereafter, he completed a two - year program fellowship at the

same hospital.

4. Af ter completing his formal education and training,

Respondent began practicing medicine as a sole practitioner in

Polk County, Florida, in 1993. On August 6, 1996, when he

provided care and treatment to Patient W.B., Respondent was a

sole practitioner. Cu rrently, Respondent works with a group of

four doctors employed by a professional corporation and

practices medicine in Lake Wales, Haines City and Winter Haven,

Florida.

5. Respondent has had staff privileges and has treated

Intensive Care Unit (ICU) pat ients at various hospitals

including Heart of Florida, Lake Wales, and Winter Haven

Hospitals since 1993.

6. Respondent has provided specialist consultations to

area physicians on internal medicine and pulmonary medicine. He

is board - certified in Interna l Medicine.

Chronology of Events at Lake Wales

Medical Center on August 6, 1996

7. According to Lake Wales Medical Center records, Patient

W.B., a 42 - year - old male, presented himself to the emergency

room on August 6, 1996, at 6:45 a.m., with complaints of chills,

fever, and an inability to take deep breaths. He indicated that

his flu - like symptoms had begun four days earlier causing aching

on both sides of his spine and cramping in his leg. He had

experienced some diarrhea, no vomiting, no coughing, g eneralized

muscle pain, leg pain, and was drinking fluids well.

8. He provided a medical history to the emergency room

personnel of a past appendectomy and stated that he smoked two

and one - half packs of cigarettes a day, drank two beers a day

and had a f amily history of hypertension. The initial physical

exam by emergency room staff at 6:55 a.m. revealed the

following: blood pressure of 100/56, pulse of 112 - 114/minute,

respiration rate of 28 - 32/minute, temperature of 97.7 degrees,

oxygen saturation of 9 9 percent, tachycardia (increase in heart

rate above normal), tympany over the left lower lung fields and

left upper quadrant, muscle tenderness bilaterally and good

distal perfusion. A chest X - ray and an electrocardiogram (EKG)

were ordered, and blood an d urine samples were collected for

laboratory analysis.

9. After a review of the lab results and other clinical

data, the attending emergency room physician formed initial

impressions consisting of dehydration, pancreatitis, R/O

prerenal (renal failure), R/O Hepatitis, R/O UTI and thrombocy

topenia.

10. At approximately 8:00 a.m., Respondent was called to

the emergency room to attend to Patient W.B. Respondent had no

previous knowledge of Patient W.B., but was selected from a

hospital physician roster by the Emergency Room physician.

11. Respondent arrived at the Emergency Room at

approximately 8:30 a.m., examined Patient W.B., reviewed his lab

tests and advised the Emergency Room physician to admit him to

the ICU.

12. Shortly thereafter, Respondent ret urned to the ICU,

reassessed Patient W.B. and performed a thorough physical

examination and evaluation. Respondent recorded Patient W.B.'s

chief complaint, current illness, past medical history,

medications ingested, allergies, family history, and social

history. Under social history, Respondent noted that Patient

W.B. had a history of drinking one six - pack of beer each day but

had stopped since the onset of the symptoms. Respondent

indicated that Patient W.B. looked slightly ill with acute

cardiopulmona ry distress.

13. Respondent recorded the following vital signs:

temperature 97.7 degrees, pulse 124, respiratory rate 32, blood

pressure 109/51. Patient W.B's chest trachea was central, with

"good air entry bilaterally with no wheezes or rhonci audible ."

His heart sounds were normal and jugular venous pressure was not

elevated. Under "peripheries," Respondent noted that there was

no edema, with good pulses. The abdomen was soft and non -

tender, with minimum epigastric and periumbilical tenderness and

no guarding or rebound. His bowel sounds were normal. Under

"neurological," Respondent noted that "Patient is slightly weak

but alert and oriented to time, place and person," with no

obvious cranial nerve, motor or sensory deficits.

14. Respondent, in h is evaluation, identified his

patient's significant lab results including: WBG 6.9;

hemoglobin 14.4; platelets 73,000; and bands 13 percent.

Chemistry lab results showed a BUN of 56, creatinine of 3.3,

bicarbonate of 19, total bilirubin of 2.7, creatinin e kinase of

1810, GGT of 139, AST 136, and amylase of 235. The urinalysis

was positive for blood and nitrates with a trace of leukocytes

and bacteria.

15. The Radiographic Report indicated that the chest X - ray

and abdomen, supine and upright, were normal or unremarkable.

16. It was later determined that the lab results collected

earlier at 7:10 a.m. showed no growth in the patient's urine

culture, and no growth in his blood cultures after 48 hours.

The sputum from the lung showed 3 growth of normal

oro pharyngeal flora after 48 hours. The hepatitis profile for

A, B and C were non - reactive.

17. Respondent's history and physical examination of

Patient W.B., and his evaluation of the lab results produced

four initial impressions with four diagnoses:

1. U rinary tract infection with possible

urosepsis;

2. Dehydration with prerenal azotemia;

3. Rhabdomyolysis; and

4. Pancreatitis.

18. Respondent's first diagnosis, urosepsis, was based on

the patient's urinary tract infection which may lead to an

i nfection in the blood. The second diagnosis was based on

evidence that the patient was severely dehydrated, causing renal

failure, i.e. prerenal azotemia. The third diagnosis,

rhabdomyolysis, is indicative of massive muscle skeletal

breakdown which leads to elevated creatine kinase as found in

Patient's lab that morning. The fourth diagnosis, Pancreatitis,

relates to inflammation of the pancreas, as evidenced by

Patient's abnormal amylase level and possible abnormal liver

enzymes.

19. Respondent initiat ed the following plan of treatment

to address the tentative diagnoses:

1. Patient will be admitted to Intensive

Care Unit;

2. He will be started on aggressive

hydration with IV fluids;

3. Clear liquids only to control

Pancreatitis;

4. Septic screen fol lowed by antibiotics

for urinary tract infection. Patient most

likely has a benign prostatic hypertrophy

which will be investigated once patient's

acute medical condition has resolved.

Further therapy will be dictated on

patient's clinical response.

Res pondent's initial plan of care required the ICU registered

nurses to monitor Patient W.B.'s vital signs, including

temperature, pulse, respiratory, blood pressure and oxygen

saturation rates, and stabilize him according to his orders.

Initial Orders by Respondent

20. At approximately 8:40 a.m., Respondent provided

detailed orders to the nurses which included the following:

1. intravenous fluid hydration at 200 cc

per hour for three liters, to correct the

hydration;

2. monitor intake and output (I & O);

3. collect two sets of blood and send for

cultures to identify any abnormalities in

the blood system and liver;

4. obtain urine sample for culture and

sensitivity;

5. obtain (by respiratory therapy) sputum

for culture and sensitivity and gram sta in;

6. obtain stool sample for gram stain,

culture and sensitivity to look for

infectious sites;

7. obtain abdominal x - ray, flat plate and

upright, to ensure no complicating factors

in abdomen which may lead to Pancreatitis;

8. test for serum lipase which is an enzyme

elevated in Pancreatitis;

9. provide oral diet of clear fluids as

tolerated, because a patient with

Pancreatitis may not tolerate solid food;

and

10. obtain a PT, PTT, hepatitis profile.

21. At approximately 10:00 a.m., Respondent ordered

Bactrim, an antibiotic, to combat any sepsis. He ordered clear

liquids and continuous IV fluids.

22. At approximately 11:00 a.m., Patient W.B. complained

of shortness of breath. The ICU nurses and Respondent examined

his lungs with a stethoscope which were unremarkable. Patient

W.B's oxygen saturation was normal at 98 percent and his

temperature was within normal range at 100 degrees.

Respondent Returns to Office Practice

23. At approximately 11:10 a.m., Respondent departed the

hospital and headed for his office practice which was

approximately 25 - 30 minutes from the Lake Wales Medical Center.

He intended to manage Patient W.B. by phone until he returned to

the ICU later that evening for his re - evaluation. Respondent

testified that he norma lly re - evaluated all of his hospital

patients at the end of the day and completed his rounds at

approximately 9:00 p.m. each night.

24. Phone management of patients at Lakes Wales Medical

Center, a small - town hospital, was a common and necessary

practice . While the hospital's ICU did not have a physician

present at all times, Respondent testified that it was not

practical for a doctor to remain in the ICU all day and all

night. Petitioner's expert, Dr. Jack Giddings, agreed and

stated, "The alternative to that would be for the physician to

live in the hospital. How can you possibly object to it?"

25. The Lake Wales Medical Center contained six ICU

patient beds, with one nurse to every two patients. Vanessa

McIntosh, a registered nurse, attended to Patient W.B. during

the 7:00 a.m. to 3:00 p.m. shift, while Nurse S. Long attended

to him during the 3:00 p.m. to 11:00 p.m. shift.

26. Attending nurses in the ICU carefully monitor and

record each patient's condition in their Nurse's Progress Notes.

T hey regularly record patient vital signs including temperature,

blood pressure, respirations, oxygen saturation and pulse. In

addition, communications with the attending physician, including

phone orders, and nurse actions are recorded.

Clinical Cour se of Patient W.B.

27. Through 10:00 a.m., while Respondent was present at

the hospital, Patient W.B.'s vital signs were reasonably

consistent. His heart rate was 114/minute, his respirations

were 24/minute, his blood pressure was 90/66 and his oxygen

sa turation rate was 93 percent.

28. Over the next several hours, Patient W.B.'s mental and

physical status deteriorated. He became extremely anxious and

agitated, required additional sedation and restraint, and his

vital signs increasingly fluctuated in t he abnormal range.

29. At approximately 12:55 p.m., Patient W.B.'s heart rate

had risen to 143/minute, his respirations had nearly doubled to

39/minute, his blood pressure had increased to 108/96, and his

oxygen saturation was at or slightly above 90 perc ent. In

addition, the patient became increasingly anxious and was

hyperventilating.

30. At approximately 1:00 p.m., Nurse McIntosh, the

attending registered ICU nurse, was concerned and paged the

Respondent at his office practice. Nurse McIntosh testifie d

that the ICU nurses had a policy of contacting the attending

physician to convey concerns about their patient, alert a change

in their patient's condition, receive medication directives,

provide patient status reports and lab results and to ask

questions . She indicated that if the attending physician was

needed immediately, the doctor was paged using the code "stat."

31. By 1:15 p.m., the Respondent had not returned her page

so Nurse McIntosh, again, paged Respondent to alert him of

Patient W.B's change in status. At 1:30 p.m., Nurse McIntosh

paged the Respondent for the third time. Patient W.B.'s vital

signs were increasingly abnormal; he remained extremely anxious

and was hyperventilating. Nurse McIntosh did not, however, page

Respondent "stat" beca use she believed that Patient W.B.'s

condition was not "seriously deteriorating."

32. At approximately 1:35 p.m., Respondent returned Nurse

McIntosh's third page, received his patient's change in status

over the telephone, and ordered sedatives ("Ativan " 2 mg IV

push, and "Librium" 10 mg) to settle him. Respondent also

ordered the lab to immediately draw arterial blood gases (ABGs)

to determine his metabolic condition, e.g., whether there was a

severe metabolic acidosis, metabolic alkalosis, or other

ab normalities in his pH, and whether he was receiving adequate

oxygen and the extent of oxygen saturation.

33. Respondent indicated that the results were important

to determine whether Patient W.B. required intubation and a

ventilator, and whether he requ ired bicarbonate supplementation

to correct the metabolic acidosis.

34. At approximately 1:40 p.m., ABGs were drawn and at

2:00 p.m., the results were relayed to Respondent. Patient

W.B.'s oxygen saturation rate was borderline normal and his pH

was in th e normal range. Although he had difficulty breathing,

he was maintaining his own oxygenation without the need for

immediate intubation and a ventilator. Respondent believed that

Patient W.B. was tending toward mild metabolic acidosis and that

his conditi on was common with renal failure and rhabdomyolysis.

35. Respondent indicated that, thereafter, he developed a

working diagnosis of delirium tremens (DTs), a sudden, severe

deterioration of a patient's neurological function, causing the

patient to become disoriented, confused and agitated.

Potentially lethal, DT's occurs in a small percentage of

patients who are undergoing alcohol withdrawal. Although the

symptoms are often delayed until days after the withdrawal, they

include fever, excessive sweating, tachycardia, hypertension or

hypotension, hallucinations, agitation, confusion, fluctuating

mental status, seizures, and combativeness.

36. Proper treatment for a patient afflicted with DT's

includes supportive sedation, sufficient fluids, adequate

oxygen ation, maintenance of respiratory status, and close

monitoring.

37. While Patient W.B. did not exhibit all of the symptoms

of DTs, the overwhelming weight of the testimonial evidence

suggested that the diagnosis was not unreasonable nor

inconsistent with the patient's lab results, vital signs, and

behavior. In fact, Petitioner's expert Dr. Schmidt, when asked

at hearing to describe the symptoms of a patient suffering from

DTs, responded:

Those that this patient showed, including

agitation, perhaps deliriu m, loose

associations in terms of conversations,

rapid heart beat, rapid respirations, more

and more agitations, combativeness.

38. In addition, Respondent's expert, Dr. William E.

Manry, who is Board - certified in Family Practice and has

practiced in Lak e Wales for over 50 years, reviewed Patient

W.B.'s medical chart and opined:

I think the evidence is substantive that it

just about had to be that. Part of the

answer is based on the fact that he

admitted, I think, a six - pack of beer a day.

Now if an alc oholic admits to a six - pack of

beer a day, the actual total is somewhere

around three times as much.

39. Dr. Vincente S. Verzosa, a Board - certified Internist

who has practiced medicine in the Lake Wales area for 30 years,

agreed. "From the time the pati ent was admitted, he gradually

deteriorated, or he developed delirium -- delirium tremens --

most probably. I think it had something to do with his demise

later that day."

40. Following the nurse's 2:00 p.m. patient status update,

Respondent ordered an additional sedative for Patient W.B. to

control his heightened agitation. Respondent also instructed

the nurses to page him if physical restraints were needed to

control the patient.

41. At 3:00 p.m., Nurse Long, R.N., began her shift and

tended to Patie nt W.B.

42. At 3:30 p.m., she recorded that his vital signs had

improved since the earlier episode, his oxygen saturation was 94

percent, and his respiration rate was 36/minute. She noted that

Patient W.B., again complained that it was difficult for hi m to

breathe.

43. Patient W.B.'s vital signs recorded between 3:45 p.m.,

4:00 p.m., and 4:35 p.m. reflected a mild increase in heart rate

(134 to 139), respirations steady at 36, oxygen saturation

steady at 93 percent, and fluctuating blood pressure.

44 . At approximately 5:05 p.m., Patient W.B.'s condition

again deteriorated and Nurse Long paged the Respondent. She

recorded that Patient W.B.'s oxygen saturation rate was varying

between 85 - 96 percent, his respirations were labored and he

needed respirat ory treatment. His respirations had increased to

44 per minute, his heart rate escalated to 150 per minute, and

he was hyperventilating.

45. At approximately 5:40 p.m., Respondent called Nurse

Long and she alerted him of Patient W.B.'s status. Responden t

ordered a restraint vest, Valium, 10 mg IVP, and maintenance of

oxygen saturation at or above 90 percent.

46. Shortly thereafter, at approximately 5:45 p.m.,

Patient W.B.'s status worsened and Nurse Long again paged

Respondent. She recorded in her note s that the Valium had been

given for his restlessness, he had twice climbed out of bed,

pulled at his IV lines, and twice removed his EKG leads and

blood pressure cuff. Moreover, the orderly was called twice to

place the Patient back into bed and install the restraint.

According to Nurse Long, Patient W.B. was "getting combative."

47. At approximately 6:30 p.m., Patient W.B. remained

agitated and combative. Although Respondent had not returned

Nurse Long's 5:45 p.m. page, she called Respiratory Services ,

located within the hospital, to assist and increase his oxygen

saturation rate. However, when personnel attempted to place an

oxygen mask on him, the patient resisted.

48. At approximately 6:35 p.m., Patient W.B.'s pulse had

climbed to 163 per minute, his respirations increased to 48 and

his oxygen saturation rate was critically low at 73 percent.

49. At approximately 6:55 p.m., Respondent was again

paged, twice. Hospital staff placed an external re - breather on

Patient W.B. and provided him with 100 p ercent oxygen.

50. At approximately 7:25 p.m., Respondent contacted Nurse

Long and was advised of Patient W.B.'s severely deteriorating

condition. Respondent ordered 20 mg Valium IV to combat his

extreme agitation. Shortly thereafter, Respondent departe d his

office for the hospital in preparation for possible intubation.

51. At approximately 7:55 p.m., Patient W.B. stopped

breathing and the "code" was called. The emergency room

physician and other health care personnel immediately assisted

and attem pted to intubate the patient.

52. At approximately 8:10 p.m., Respondent arrived on the

scene and assisted the health care professionals.

53. At approximately 8:30 p.m., on August 6, 1996, Patient

W.B. expired.

Autopsy

54. On August 9, 1996, the Medi cal Examiner performed an

autopsy on Patient W.B. The examiner stated in his Autopsy

Report that Patient W.B. had "a number of bacteria in his system

at the time of his death," and determined that bacterial sepsis

was the cause of his death.

55. However, as the Medical Examiner indicated in his

Autopsy Report, the death of Patient W.B. "is somewhat

problematic." In fact, much of the expert testimonial evidence

questioned the accuracy of the examiner's determination that

bacterial sepsis was the cause of Patient W.B.'s death.

Specifically, they opined that his determination was

inconsistent with the fact that Patient W.B.'s blood cultures,

collected shortly before his death, showed no bacterial growth

five days after his demise. Respondent suggests that it is

likely that Patient W.B. suffered a respiratory arrest at that

time, not a cardiac arrest, and that he was, in fact, undergoing

a seizure which led to his cardiac arrest.

Alleged Violations

Count I: Deviations From The General Standard of Care

(a) Failure to Physically Reevaluate the Patient Earlier

56. Petitioner's experts, Drs. Schmidt and Giddings,

testified that in their opinion the acceptable standard of care,

under the circumstances, required Respondent to physically

reevaluate Patient W.B. sooner. Their opinions are credible and

persuasive. Subsequent to 11:55 a.m., Patient W.B.'s vital

signs fluctuated significantly in the abnormal range. In fact,

on at least eight separate occasions in approximately six hours,

an ICU nurse paged Re spondent to alert him of his patient's

deteriorating status, yet Respondent chose to manage him solely

by telephone.

57. While Respondent's working diagnosis of delirium

tremens was not shown to be unreasonable or inappropriate, nor

was Respondent ever pa ged "stat" by the ICU nurses, the evidence

is clear and convincing that a reasonably prudent physician

would have physically reassessed his ICU patient's dramatically

fluctuating condition earlier than 8:10 p.m. Considering

Patient W.B.'s increasingly err atic vital signs and abnormal

behavior, the severity of his condition, the potential and

recognized lethality of Respondent's working diagnosis, the

repeated pages he received, and the credible and persuasive

expert testimonial evidence, Respondent failed to practice

medicine with the level of care, skill and treatment which is

recognized by a reasonably prudent similar physician as being

acceptable under similar conditions and circumstances.

58. It is concluded that Petitioner proved Count I of the

Admin istrative Complaint, by clear and convincing evidence. The

acceptable standard of care required Respondent to physically

reevaluate Patient W.B. earlier than 8:10 p.m., approximately 20

minutes before his death.

(b) Failure to Obtain Consultations With Specialists

59. Both Dr. Schmidt, who practices in Miami, and

Dr. Giddings, who practices in Jacksonville, admitted that they

were unfamiliar with the medical specialists available in Polk

County and the surrounding area.

60. Respondent expressed his f eeling that there was no

indication of a need to obtain a consultation from a

cardiologist or other specialist because the Patient did not

exhibit any signs of a cardiac condition. It is concluded that

Petitioner failed to establish by clear and convincing evidence

that the acceptable standard of care required Respondent to seek

a consultation when such specialists were either not available

in the area or not indicated by his patient's condition.

(c) Failure to Order Follow - up Tests

61. Dr. Schmidt tes tified that, in his opinion, Dr. Allam

fell below the acceptable standard of care by not ordering

follow - up tests for potassium and platelets, and not ordering a

brain CT and an abdominal ultrasound or CT scan which "might

have provided useful information. "

62. Respondent and Drs. Manry and Verzosa gave detailed

opinions in opposition to Dr. Schmidt's and their opinions are

credible and persuasive on this issue.

63. It is concluded that Petitioner failed to establish by

clear and convincing evidence that the acceptable standard of

care required Respondent, on that day, to order the follow - up

tests suggested by Dr. Schmidt.

Count II: Failure to Keep Appropriate Medical Records

64. It is concluded that Petitioner failed to establish by

clear and convincin g evidence that Respondent failed to document

and keep appropriate medical records justifying the patient's

course of treatment.

Count III: Failure to Appropriately Prescribe Medications

65. It is concluded that Petitioner failed to establish by

clear an d convincing evidence that Respondent failed to

appropriately prescribe medications to Patient W.B.

CONCLUSIONS OF LAW

66. The Division of Administrative Hearings has

jurisdiction of the subject matter and of the parties to this

proceeding. Sections 120. 569, and 120.57(1), Florida Statutes.

67. Pursuant to Section 458.331(2), Florida Statutes,

Petitioner, Department of Health, Board of Medicine, may revoke,

suspend or otherwise discipline a physician's license for

violations of Section 458.331(1) inclu ding:

(m) Failing to keep legible, as defined by

department rule in consultation with the

board, medical records that identify the

licensed physician or the physician extender

and supervising physician by name and

professional title who is or are responsi ble

for rendering, ordering, supervising, or

billing each diagnostic or treatment

procedure and that justify the course of

treatment of the patient, including, but not

limited to, patient histories; examination

results; test results; records of drugs

presc ribed, dispensed, or administered; and

reports of consultations and

hospitalizations.

(q) Prescribing, dispensing, administering,

mixing, or otherwise preparing a legend

drug, including any controlled substance,

other than in the course of the physician' s

professional practice. For the purposes of

this paragraph, it shall be legally presumed

that prescribing, dispensing, administering,

mixing, or otherwise preparing legend drugs,

including all controlled substances,

inappropriately or in excessive or

ina ppropriate quantities is not in the best

interest of the patient and is not in the

course of the physician's professional

practice, without regard to his or her

intent.

(t) Gross or repeated malpractice or the

failure to practice medicine with that level

of care, skill, and treatment which is

recognized by a reasonably prudent similar

physician as being acceptable under similar

conditions and circumstances. . . .

68. License disciplinary proceedings are penal in nature.

See State ex rel. Vining v. Flor ida Real Estate Commission , 281

So. 2d 487 (Fla. 1973). In this disciplinary proceeding,

Petitioner seeks to impose penalties which include revocation or

suspension of a physician's license, and must prove the truth of

the allegations by clear and convinc ing evidence. Section

458.331(3), Florida Statutes (2001); see also Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1st DCA 1987); Department of

Banking and Finance v. Osborne Stern , 670 So. 2d 932 (Fla.

1996).

69. Based on the foregoing findings of fact, Pe titioner

failed to establish by clear and convincing evidence that

Respondent violated Subsections 458.331(1)(m) or (q), Florida

Statutes (2001), as alleged in the Administrative Complaint.

70. However, based on the foregoing Findings of Fact, with

resp ect to Count I, the alleged violation of Subsection

458.331(1)(t), Petitioner established, with extensive, credible,

clear and convincing evidence, the general standard of care,

skill and treatment which is recognized by a reasonably prudent

similar physic ian as being acceptable under similar

circumstances. Petitioner further established, by clear and

convincing evidence that Respondent deviated from that level of

care.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that Petitioner enter a final order

finding that: (1) Respondent DID NOT violate Subsections

458.331(1)(m)and(q), Florida Statutes, as alleged in the

Administrative Complaint; and (2) Respondent DID violate

Subsection 458.331(1)(t), Florida St atutes, as alleged in the

Administrative Complaint and imposing the following sanctions:

a. an administrative fine of $5,000;

b. the performance of ten hours in continuing medical

education in care of critical patients; and

c. issuance of a letter of co ncern.

DONE AND ENTERED this 20th day of February, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM R. PFEIFFER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

T allahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of February, 2002.

COPIES FURNISHED :

R. L. Caleen, Jr., Esq uire

Watkins & Caleen, P.A.

Post Office Box 15828

Tallahassee, Florida 32317 - 5828

Ephraim D. Livingston, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317 - 4229

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Tanya Williams, Executive Director

Board of Medicine

Departme nt of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Rec ommended Order should be filed with the agency that

will issue the Final Order in this case.