01-002594PL Department Of Health, Board Of Osteopathic Medicine vs. Alexandra Konowal, D.O. Status: Closed Recommended Order on Tuesday, December 18, 2001.

Summary: Osteopathic physician not guilty of practicing below the standard of care and inadequate record keeping.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

OSTEOPATHIC MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 01 - 2594PL

)

ALEXANDRA KONOWAL, D.O., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its designated Administrative Law Judge, Jeff B.

Clark, held a formal hearing in the above - styled case on

September 26, 2001, in Fort Myers, Florida.

APPEARANCES

For Petit ioner: Bruce A. Campbell, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 39A

Tallahassee, Florida 32399 - 0450

For Respondent: Bruce M. Stanley, Jr., Esquir e

Henderson, Franklin, Starnes & Holt

1715 Monroe Street

Post Office Box 280

Fort Myers, Florida 33902 - 0280

STATEMENT OF THE ISSUES

Whether Respondent, Alexandra Kon owal, D.O., violated

Subsections 459.015(1)(x) and (o), Florida Statutes, and, if so,

what penalty should be imposed.

PRELIMINARY STATEMENT

On June 6, 2001, the Department of Health ("Petitioner")

filed an Administrative Complaint against Alexandra Konowal ,

D.O. ("Respondent"). The Administrative Complaint alleges that

Respondent violated: (1) Subsection 459.015(1)(x), Florida

Statutes, by failing to practice osteopathic medicine with that

level of care, skill, and treatment which is recognized by a

reas onably prudent similar physician as being acceptable under

similar conditions and circumstances, with regard to a patient

known in this record as B. M.; and (2) Subsection 459.015(1)(o),

Florida Statutes, by failing to keep medical records including

but no t limited to: patient histories; examination results;

test results; records of drugs prescribed, dispensed, or

administered; and reports of consultation and hospitalizations

to justify the course of treatment of Patient B. M.

Respondent filed an election of rights disputing the

allegations of fact contained in the Administrative Complaint

and petitioned for a formal administrative hearing. The matter

was referred to the Division of Administrative Hearings on

July 2, 2001. On July 13, 2001, the case was set for final

hearing on September 7, 2001, in Fort Myers, Florida. On

August 20, 2001, Petitioner filed an unopposed Motion For

Continuance which was granted; the case was rescheduled for

September 26, 2001.

The parties filed an extensive Joint Preheari ng Stipulation

on September 19, 2001, in which they agreed to many of the

Findings of Fact set forth herein. The only "live" witness

presented at the hearing was Respondent, Alexandra Konowal,

D.O. Petitioner presented its expert witness, Douglas R. Led er,

D.O., by videotaped deposition. The deposition transcript of

September 7, 2001, and videotape were received into evidence as

Petitioner's Exhibit 1. At the hearing, the following joint

exhibits, J1 through J8 were received into evidence:

J - 1. Depo sition of Douglas R. Leder,

D.O., dated August 29, 2001;

J - 2. Medical Records for Patient B. M.,

Eye Health;

J - 3. Medical Records for Patient B. M.,

St. John’s Surgery Center;

J - 4. Sprint Telephone Record dated

August 13, 1998;

J - 5. Joint Prehearing Stipulation;

J - 6. Deposition of Eric Trevor Elmquist,

D.O., dated September 4, 2001;

J - 7. Deposition of Sandy Fallon, dated

September 6, 2001;

J - 8. Deposition of James Campbell, D.O.,

dated September 6, 2001.

A Transcript of Procee dings was filed on November 2, 2001;

both parties filed Proposed Recommended Orders which were

considered by the undersigned.

FINDINGS OF FACT

1. Respondent is a licensed osteopathic physician in the

State of Florida, having been issued license number OS 7169.

2. Petitioner is the state agency charged with regulating

the practice of osteopathic medicine pursuant to Section 20.42,

Florida Statutes.

3. On July 20, 1998, Respondent first saw Patient B. M., a

75 - year - old female, at Eye Health of Fort Myers, for a complaint

of poor vision and cataracts. Respondent scheduled cataract

surgery for July 30, 1998, at an outpatient surgery center.

4. On Thursday, July 30, 1998, at approximately

10:30 a.m., Respondent performed the surgery, removing the lens

of P atient B. M.‘s left eye and replacing it with an implant.

Patient B. M. was discharged from the surgery center at

11:17 a.m., with instructions to go to Eye Health of Fort Myers

for follow - up examination that afternoon. On Saturday,

August 1, 1998, Pat ient B. M. telephoned Eye Health early in the

morning complaining of inability to see from the left eye and

severe pain in the left eye.

5. At about 9:00 a.m., August 1, 1998, Patient B. M. was

examined at Eye Health of Fort Myers by James Campbell, an

op tometrist with Eye Health. Dr. Campbell found residual cortex

in the left eye, with corneal edema, but observed no pus in the

eye. Dr. Campbell changed the antibiotic eye drops for the

patient.

6. At approximately 10:00 a.m., on August 1, 1998,

Dr. Cam pbell had a telephone conference with Respondent and

Dr. Franz to discuss the symptoms of Patient B. M.

7. At approximately 4:45 p.m., on August 1, 1998, Patient

B. M. again called Eye Health complaining of unbearable pain.

8. Dr. Campbell, in turn, cal led Respondent at

approximately 5:00 p.m. to advise her of Patient B. M.’s

complaints.

9. During the 5:00 p.m. telephone call from Dr. Campbell

to Respondent, Dr. Campbell discussed the possible diagnosis of

endophthalmitis.

10. At 5:36 p.m., August 1, 1 998, Respondent spoke with

Patient B. M. on the telephone for nine minutes.

11. During the 5:36 p.m. telephone call, Patient B. M.

reported shooting pains in her eye and that her vision was bad.

12. During the 5:36 p.m. telephone call, Respondent

advised Patient B. M. that she needed to be evaluated. When

Patient B. M. said she could not come in, Respondent advised of

the possible risks including damage to the optic nerve from

excessive pressure and infection. Respondent suggested going to

the emergency room and offered to provide transportation, but

Patient B. M. refused.

13. During the 5:36 p.m. telephone call, Respondent

recommended that Patient B. M. take Percocet that the Patient

already had for the pain; Respondent would call in a

prescription for erythromycin ointment and told the patient to

call back if the eye didn’t improve.

14. Following the 5:36 p.m. telephone call, Respondent did

phone in a prescription for erythromycin to a Walgreens Pharmacy

near Patient B. M.'s residence. It appears the patient did not

pick up this prescription.

15. The "standard of care" expert witness offered by

Petitioner found it "difficult to answer" a hypothetical

question directed to the "standard of care" of Respondent's care

of Patient B. M., incorporating all relevant facts set forth

hereinabove in these Findings of Facts and, essentially, failed

to render an opinion incorporating all relevant facts;

therefore, Petitioner has failed to prove by clear and

convincing evidence that Respondent failed to practice

os teopathic medicine with that level of care, skill, and

treatment which is recognized by a reasonably prudent similar

osteopathic physician as being acceptable under similar

conditions and circumstances as alleged in this matter.

16. Respondent prepared an office note dated August 1,

1998, 7:30 p.m., as a record of Respondent’s telephone call to

Patient B. M. This note was, in fact, prepared on the morning

of August 3, 1998. The note reads in its entirety:

8/1/98 7:30 PM

Spoke with patient. States having pain in

left eye. Recommended artificial tears for

shooting pain, and continue using Ocuflox

and Pred Forte. Patient states she has been

taking Percocet every four hours with no

relief, but she takes Percocet regularly for

n europathy. Told to use two every four

hours and call if no improvement.

17. While the August 1, 1998, office note records a great

deal of relevant information, Respondent's testimony revealed it

does not reflect Patient B. M.'s refusal to come in for

ev aluation, Respondent's warnings regarding the risks of not

being evaluated, an offer of transportation to an emergency

room, or a prescription order for Erythromycin.

18. Petitioner's expert witness testified on deposition

that, "I'm not sure what the sta ndard of care is" for charting

weekend telephone calls. When he receives a telephone call at

home from a patient, he makes notes on "a scrap of paper" and

later records the note in the patient's record.

19. Respondent testified that she now keeps a book at home

in which she records every conversation when patients call her

at home; she then brings the book to her office for reference in

recording the entire conversation in the patient's record.

However, she does not believe that anyone in her practice do es

it the way she now does.

20. There is no standard procedure in the practice of

osteopathic medicine for memorializing conversations in the

patient's record between a physician and patient which occur

outside the office or hospital setting.

21. On Augu st 3, 1998, Patient B. M. returned to

Respondent’s office complaining of no vision and sharp pain.

Respondent’s examination revealed Patient B. M.’s left eye to be

swollen and with hypopyon (internal pus). Respondent diagnosed

endophthalmitis and immedia tely referred Patient B. M. to a

retinal specialist.

22. On August 3, 1998, Patient B. M. was seen by the

retinal specialist who found near total hypopyon, so that

neither the iris nor any posterior detail could be visualized.

Ultrasound showed dense mob ile vitreal opacities, primarily

anteriorly. The specialist recommended a vitrectomy with

injection of antibiotics, and discussed at length the

possibility of loss of vision, loss of the eye and uncertainty

of any visual benefit. He performed the surgery for Patient

B. M. the night of August 3, 1998.

23. Endophthalmitis is a recognized complication of

cataract surgery that occurs in less than one percent of

patients, but does not presumptively indicate a departure from

the standard of care.

24. The sta ndard of care required Respondent see Patient

B. M. and treat her for endophthalmitis on August 1, 1998, or to

warn Patient B. M. on August 1, 1998, of the serious

consequences of endophthalmitis if Patient B. M. did not have an

examination. The evidence revealed that Respondent warned

Patient B. M. of the serious consequences of her failure to go

to the clinic or an emergency room for treatment.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction of the parties and the subject matter pursuant to

Sections 120.57 and 456.073, Florida Statutes.

26. The Board of Osteopathy is empowered to revoke,

suspend or otherwise discipline the license of an osteopathic

physician for violation of Section 459.015(1), Florida Statutes.

27. Subs ection 459.015(1)(x), Florida Statutes, requires

that a licensed osteopathic physician “practice osteopathic

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

recognized by a reasonably prudent similar osteopathic physician

as being acceptabl e under similar conditions and circumstances.”

28. Subsection 459.015(1)(o), Florida Statutes, requires

that a licensed osteopathic physician keep "legible, as defined

by department rule in consultation with the board, medical

records that identify the l icensed osteopathic physician or the

osteopathic physician extender and supervising osteopathic

physician by name and professional title who is or are

responsible for rendering, ordering, supervising, or billing for

each diagnostic or treatment procedure a nd that justify the

course of treatment of the patient, including, but not limited

to, patient histories; examination results; test results;

records of drugs prescribed, dispensed, or administered; and

reports of consultations and hospitalizations."

29. R ule 64B15 - 15.004(1), Florida Administrative Code,

states:

[F]or the purpose of implementing the

provisions of Subsection 459.015(1)(o),

Florida Statutes, osteopathic physicians

shall maintain written, legible records on

each patient. Such written record s shall

contain, at a minimum, the following

information about the patient:

(a) [p]atient histories;

(b) [e]xamination results;

(c) [t]est results;

(d) [r]ecords of drugs prescribed,

dispensed, or administered;

(e) [r]eports of consultation s; and

(f) [r]eports of hospitalizations.

30. While less detailed records are necessary when a

physician is treating a patient in a private office setting

rather than a hospital, this does not negate the need for a

minimum amount of information to con form with the prevailing

community medical standards [the Florida statutory standard] so

that "neutral third parties can observe what transpired during

the course of treatment of a patient." Robertson v. Dept. of

Professional Regulation, Board of Medicine , 574 So. 2d 153, 156

(Fla. 1st DCA 1990).

31. License revocation and discipline procedures are penal

in nature. Petitioner’s burden in this case is to prove the

allegations of the Administrative Complaint by clear and

convincing evidence. Ferris v. Tu rlington , 510 So. 2d 292 (Fla.

1987).

32. The "clear and convincing " standard requires:

[T]hat the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

In Re: Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

33. Where the licensee is charged with a violation of

professional conduct and the specific acts or conduct required

of th e professional are explicitly set forth in the statute or

valid rule promulgated pursuant thereto, the burden on the

agency is to show a deviation from the statutorily - required

acts; but where the agency charges negligent violation of

general standards of professional conduct, i.e. , the negligent

failure to exercise the degree of care reasonably expected of a

professional, the agency must present expert testimony that

proves the required professional conduct, as well as the

deviation therefrom. Purvis v. D epartment of Professional

Regulation , 461 So. 2d 134 (Fla. 1st. DCA 1984).

34. Petitioner failed to establish by clear and convincing

evidence that Respondent failed to practice medicine with that

level of care, skill, and treatment which is recognized b y a

reasonably prudent similar physician as being acceptable under

the same conditions and circumstances because of the testimony

of Respondent at the final hearing, corroborated by the record

of telephone calls, suggests that Respondent met the standard o f

care; and the absence of expert testimony expressing an opinion,

which incorporated all relevant facts, that there had been a

deviation from the standard of care.

35. Because Subsection 459.015(1)(o), Florida Statutes, is

penal in nature, it, and the a dministrative rule promulgated to

implement it, must be strictly construed in favor of the

licensed physician. Breesmen v. Department of Professional

Regulation, Board of Medicine , 567 So. 2d 469 (Fla. 1st DCA

1990); Farzad v. Department of Professional R egulation , 443 So.

2d 373 (Fla. 1st DCA 1983); Bowling v. Department of Insurance ,

394 So. 2d 165 (Fla. 1st DCA 1981). There was no showing that

Dr. Konowal did not record all medical treatment administered,

or that the entries were false or inaccurate.

3 6. Dr. Konowal's failure to record her request that

Patient B. M. appear for evaluation or her warning of the risks

incident to her failure to be evaluated, taken in the totality

of Patient B. M.'s records, do not fail to justify her course of

treatment. The statute should not be so liberally construed as

authorizing disciplinary action for a physician's failure to

document a small part of an extended conversation, particularly

when the physician is at home on a Saturday evening.

37. Petitioner has faile d to demonstrate, by clear and

convincing evidence, that Respondent failed to "keep legible

. . . medical records that identify the licensed osteopathic

physician . . . who is . . . responsible for . . . each

diagnostic or treatment procedure and that jus tify the course of

treatment of the patient, including , but not limited to,

patient histories; examination results; test results; records of

drugs prescribed, dispensed, or administered; and reports of

consultations and hospitalizations." The focus of th is

allegation is the office note entered into the patient's records

on Monday, August 3, 1998, which memorialized the nine - minute

telephone call between Respondent and Patient B. M. which took

place on the evening of Saturday, August 1, 1998. Petitioner's

expert witness testified that he was not sure of the standard of

care for charting weekend telephone calls. With the exception

of Respondent's failure to record prescribing erythromycin

ointment in the patient's office notes, there was no evidence

presen ted that suggests any specific violation of Rule 64B15 -

15.004(1), Florida Administrative Code, which was promulgated to

implement provisions of Subsection 459.015(1)(o), Florida

Statutes, the Subsection alleged to have been violated. No

other competent ev idence was presented which specifically

delineated a violation of Subsection 459.015(1)(o), Florida

Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED, that the Department of Health, Board of

Osteop athy, enter a final order finding that Respondent,

Alexandra Konowal, D.O., is not guilty of violating Subsections

459.015(1)(x) and (o), Florida Statutes, and dismissing the

Administrative Complaint filed in this matter.

DONE AND ENTERED this 18th d ay of December, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of December, 2001.

COPIES FURNISHED :

Bruce A. Campbell, Esquire

Agency for Health Care Administration

2 727 Mahan Drive, Mail Stop 39A

Tallahassee, Florida 32399 - 0450

Bruce M. Stanley, Jr., Esquire

Henderson, Franklin, Starnes & Holt

1715 Monroe Street

Post Office Box 280

Fort Myers, Florida 33902 - 0280

William H. Buckhalt, Executive Director

Board of Ost eopathic Medicine

Department of Health

4052 Bald Cypress Way, Bin C06

Tallahassee, Florida 32399 - 1701

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

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 excepti ons

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.