01-003030PL Department Of Health, Board Of Medicine vs. Daniel T. Mcguire, M.D. Status: Closed Recommended Order on Monday, February 4, 2002.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3030PL

)

DANIEL T. MCGUIRE, M.D., )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuan t to notice, a formal hearing was conducted in

this case on December 12, 2001, in Fort Myers, Florida, before

Lawrence P. Stevenson, a duly - designated Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kim M. Kluck, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317 - 4229

For Respondent: Bruce M. Stanley, Esquire

Henderson, Franklin, Starnes & Holt, P.A.

Post Office Box 280

Fort Myers, Florida 33902

STATEMENT OF THE ISSUE

The issue presented for decision in this case is whether

Respondent should be subjected to discipline for the

violations of Chapter 458, Florida Statutes, alleged in the

Administrative Complaint issued by P etitioner on June 24,

2001.

PRELIMINARY STATEMENT

By Administrative Complaint dated June 24, 2001 (the

"Complaint"), Petitioner alleged that Respondent, a licensed

physician, violated provisions of Chapter 458, Florida

Statutes, governing medical practice in Florida. The single

count of the Complaint relates to the pre - operative and post -

operative care of Patient M. S., on whom Respondent performed

a complex open reduction and internal fixation of a left

distal femur fracture.

The Complaint alleges 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,

in violation of Section 458.331(1)(t), Flori da Statutes, in

that Respondent failed to perform an irrigation and

debridement of Patient M. S.’s left distal femur wound within

the first 8 - 24 hours of his emergency admission; failed to

obtain cultures of Patient M. S.'s left distal wound to

identify or ganisms more specifically; and failed to timely

obtain an infectious disease consultation to determine the

cause and extent of Patient M. S.'s infection.

Respondent contested the allegations of the Complaint and

timely requested a formal administrative h earing. Petitioner

forwarded the Complaint to the Division of Administrative

Hearings on July 27, 2001, requesting the assignment of an

Administrative Law Judge and the conduct of a formal hearing

pursuant to Sections 120.569 and 120.57, Florida Statutes.

The matter was assigned to the undersigned, who set the case

for final hearing on September 24 and 25, 2001. Two

continuances were granted, the hearing ultimately being

scheduled for and held on December 12, 2001.

At the final hearing, Petitioner prese nted the testimony

of Steven J. Lancaster, M.D., by way of a deposition

transcript. Petitioner's Composite Exhibit 1, the deposition

and the curriculum vitae of Dr. Lancaster, was admitted into

evidence.

Respondent testified on his own behalf and prese nted the

testimony of Edward R. Sweetser, M.D., by way of a videotaped

deposition and transcript. Respondent’s Exhibit 1, the

curriculum vitae of Dr. Sweetser, and Composite Exhibit 2, the

videotape and transcript of Dr. Sweetser's deposition, were

admitt ed into evidence.

Joint Exhibit 1, the relevant medical records from Lee

Memorial Hospital, was admitted into evidence.

A Transcript of the proceeding was filed on January 4,

2002. The parties timely filed Proposed Recommended Orders.

FINDINGS OF FAC T

Based on the oral and documentary evidence adduced at the

final hearing, and the entire record in this proceeding, the

following findings of fact are made:

1. Petitioner is the state agency charged with

regulating the practice of medicine in the State of Florida,

pursuant to Section 20.43, Florida Statutes, and Chapters 456

and 458, Florida Statutes. Pursuant to Section 20.43(3),

Florida Statutes, Petitioner has contracted with the Agency

for Health Care Administration to provide consumer complaint,

i nvestigative, and prosecutorial services required by the

Division of Medical Quality Assurance, councils, or boards.

2. At all times relevant to this proceeding, Respondent

was a licensed physician in the State of Florida, having been

issued license no. ME 0071241. At the time of Patient M. S.’s

treatment, Respondent practiced orthopedic medicine in

Florida. Respondent is currently employed as an orthopedic

surgeon in Pennsylvania and as an assistant professor at the

Medical Center of Penn State Univers ity. He no longer

practices medicine in Florida.

3. On February 11, 1998, Patient M. S., a 41 - year - old

male, was involved in a motor vehicle accident. He was

transported by ambulance to Lee Memorial Hospital in Fort

Myers, where he was evaluated by the emergency room physician.

Respondent was consulted as the orthopedist on call for the

emergency room that evening.

4. When Respondent arrived at the emergency room,

Patient M. S. was lying on a stretcher with his lower left leg

in provisional traction as applied by the emergency medical

technicians at the scene of the accident. Patient M. S. spoke

only Spanish, so Respondent had to rely on an interpreter to

communicate with him. Respondent observed that the left lower

leg was shortened and completely externally rotated,

consistent with a comminuted distal femur fracture. A

"comminuted" fracture is a fracture in which there are

multiple breaks in the bone, with several fragments.

Respondent testified that upon touch, Patient M. S.'s leg was

like "a ba g of marbles." The patient’s right leg was not

fractured but had a six - centimeter deep laceration over the

shin that went down to the bone.

5. There was a less than one - centimeter superficial

wound over the left distal, anterior thigh, caused by a spi ke

of bone fragment that had pierced the skin from within. This

wound was leaking bloody, fatty material. Bones contain

adipose, or fatty, tissue. A fracture of the bone can result

in communication of that fatty tissue with the open wound,

meaning there is direct contact of the fracture site to the

outside of the body.

6. X - rays confirmed Respondent's observation of a

comminuted distal femur fracture. Respondent diagnosed

Patient M. S. with a large wound to the right leg and "left

complex intra - arti cular femur fracture, grade I open." A

"grade I" open fracture, according to the Gustilo and Anderson

system for grading open fractures, is a relatively clean wound

with a skin fracture of less than one centimeter (cm).

7. Respondent described the fem ur fracture as one of the

worst he had ever seen, with multiple bone fragments and a

considerable degree of trauma to the muscle surrounding the

fracture. Respondent and both expert witnesses agreed that a

fracture of this nature is highly susceptible to infection.

8. Respondent irrigated the right lower leg wound with a

Betadine and sterile saline solution, then debrided and closed

the wound in the emergency room. "Betadine" is a trade name

for povidone - iodine, a topical antiseptic microbicide.

Intrav enous antibiotics were administered to prevent infection

of this deep wound.

9. Respondent then treated the fracture in Patient

M. S.’s left lower leg by taking it out of the temporary

traction applied by the EMTs, placing a skeletal traction pin

i n the proximal tibia and transferring the patient to a

hospital bed, where he was placed in balanced skeletal

traction.

10. As to the small wound on the left leg, Respondent's

contemporaneous notes indicate only that it was dressed with

Betadine - soaked gauze. The discharge summary for Patient

M. S. states that the left leg wound was "irrigated and

dressed." Respondent testified that he cleaned and dressed

the wound, but did not irrigate it on February 11.

Respondent's testimony on this point is cr edited.

11. The complexity of the fracture to Patient M. S.’s

left lower leg and the hospital’s operating room schedule

required that the surgery be done on February 14, 1998.

Patient M. S. remained in traction in the hospital during this

pre - operative period.

12. On February 14, 1998, Respondent conducted

orthopedic reconstructive surgery to repair the complex

fracture of Patient M. S.’s left lower leg. Respondent

attached medial and lateral plates and screws and performed a

bone graft. The surgery lasted approximately eight hours.

13. At the conclusion of the surgery, the incisions were

dressed and Patient M. S.’s left leg was wrapped in a bulky

sterile dressing. Deep drains were placed in the knee and

thigh during wound closure to prevent the f ormation of a deep

hematoma, which can be a medium for infection.

14. The nurse's assessment for February 16, 1998, notes

a small amount of bloody drainage from the auto collection

drainage device. Patient M. S. was running a temperature of

100.1ºF.

15. The nurse's assessment for February 17, 1998, notes

a large amount of bloody drainage from the auto collection

device on two separate occasions. Subsequently, the

assessment notes a "slight odor" from the dressing on Patient

M. S.'s left leg surgic al incision site.

16. On February 18, 1998, Patient M. S. had a

temperature of 102ºF, with an elevated white blood cell count.

Respondent evaluated Patient M. S. and observed that the

dressing on the left leg was "damp/green tinged" and had a

"foul odor of Pseudomonas." Respondent lowered the dressing

and found it to be "saturated and green." Respondent

concluded that the dressing had been colonized from without by

Pseudomonas bacteria, and ordered intravenous tobramycin as a

precaution to prevent the bacteria from colonizing to the

wound.

17. On both February 17 and 18, there was

serosanguineous drainage from the surgical incision on Patient

M. S.'s left leg.

18. On February 19, 1998, Patient M. S. ran a

temperature of 102.1ºF.

19. Respondent discharged Patient M. S. on February 20,

1998. At that time the patient fulfilled all appropriate

discharge criteria. His fever had subsided to a normal

temperature and his hemoglobin was stable. Patient M. S. was

given discharge instructions by Respond ent in writing as well

as orally in Spanish. Respondent prescribed the oral

antibiotics Keflex and Cipro for two weeks as a further

precaution against infection. Patient M. S. was scheduled for

a follow - up visit with Respondent on March 4, 1998.

20. Pa tient M. S. was instructed to call Respondent if

he experienced increased pain, numbness or tingling, a fever

of 101ºF or higher, tenderness or pain in his calves, or

excessive swelling, redness, or drainage.

21. On or about February 26, 1998, Patient M. S.

presented to St. Joseph’s Hospital in Tampa with apparent pain

plus pus drainage from the surgical incision site on his left

leg. He was diagnosed with methicillin resistant

Staphylococcus aureus, Enterobacter, and Pseudomonas in his

left leg.

22. On or about March 2, 1998, Patient M. S. underwent

an above the knee amputation of his left leg due to

complications from infection in the leg.

23. Subsequent to discharging Patient M. S. from Lee

Memorial Hospital on February 20, 1998, Respondent rece ived no

notice of further problems with Patient M. S.’s leg until

receiving notice of this action against him. Patient M. S.

did not contact Respondent after complications began to

develop. St. Joseph's Hospital in Tampa did not contact or

consult with R espondent after Patient M. S. presented there.

Respondent's first knowledge of any complications from the

surgery came when he received notice of this proceeding

against his license.

24. Two issues are presented by the course of treatment

described abov e. The first issue is whether Respondent acted

within the standard of care by cleaning and dressing the less

than one cm open fracture in the emergency room, or whether

Respondent should have performed an irrigation and debridement

of that wound in the op erating room.

25. Respondent is a board certified orthopedic surgeon

with a great deal of experience in trauma. This was one of

the worst femur fractures he had ever seen. His priorities on

the night of February 11 were to acutely address the severe

cut on Patient M. S.'s right shin, and to pull the left leg to

length prior to surgery. The small left leg wound was "very

clean," and in hindsight Respondent questioned whether he

should even have classified it as a Grade I open fracture. He

cleaned the wound, placed a Betadine dressing on it, then

followed "routine procedure" by prescribing prophylactic

antibiotics.

26. The agency's expert, Dr. Steven Lancaster, also is a

Board - certified orthopedic surgeon who routinely undertakes

trauma cases in hi s practice. Based on the testimony of

Dr. Lancaster the standard of care requires urgent irrigation

and debridement of all open fractures, and this standard is

prescribed by both the American Board of Orthopedic Surgeons

and the American Academy of Ortho pedic Surgeons. Irrigation

involves cleaning an area with saline solution. Debridement

involves the trimming of contaminated or devitalized tissue,

the removal of foreign material from wounds, and the cleaning

of bone and muscle tissue.

27. Dr. Lanca ster stated that, absent a life - threatening

condition, it is necessary to perform the irrigation and

debridement of an open fracture as soon as possible. Patient

M. S. faced no life - threatening condition. According to

Dr. Lancaster, the urgency is due to the fact that bacteria

have already been introduced into the wound at the time of

injury. If more than twelve hours pass, the bacteria have

colonized, and the wound is more properly considered infected

than merely contaminated. Dr. Lancaster testified that the

small size of the wound did not change the urgency of

performing the irrigation and debridement; microscopic

bacteria are as capable of entering a small wound as a large

one.

28. Respondent's expert, Dr. Edward Sweetser, is also a

board certi fied orthopedic surgeon with trauma experience,

though the majority of his practice is in general orthopedics.

Dr. Sweetser testified that he would not have debrided the

small left leg wound in the emergency room, and that the

standard of care would not require debridement. He noted that

it was a very small laceration, that it appeared to be a

puncture from within, and that it did not appear to be

contaminated. Dr. Sweetser believed that cleaning and

covering the wound with Betadine - soaked gauze was suf ficient

to keep bacteria out of the wound, and that the ordering of an

intravenous antibiotic was entirely appropriate for treatment

of any open wound.

29. It is found that the agency established by clear and

convincing evidence that the standard of care required urgent

irrigation and debridement of the small left leg wound.

Dr. Lancaster persuasively testified that such observations as

the small size of the wound or that the wound appeared "very

clean" to the naked eye did not affect the potential for

bacterial infection. Respondent offered no rebuttal to

Dr. Lancaster's testimony that urgent irrigation and

debridement of open fractures is the standard prescribed by

the American Board of Orthopedic Surgeons and the American

Academy of Orthopedic Surge ons.

30. The agency failed to establish by clear and

convincing evidence that Respondent's failure to perform the

irrigation and debridement of the left leg wound was the cause

of the subsequent infection. All of the testifying

orthopedists agreed th at an injury such as that suffered by

Patient M. S. is highly susceptible to infection from multiple

possible sources. Dr. Sweetser persuasively opined that the

likely main cause of the infection was the severity of the

injury, both to the bone and the so ft tissue, and the extended

length and extensive exposure of the surgical procedure.

31. The second issue is whether Respondent acted within

the standard of care subsequent to the surgery by treating

Patient M. S. with prophylactic antibiotics, or wheth er

Respondent should have pursued the more aggressive course of

reopening the left leg wound for purposes of taking a deep

tissue culture to determine the presence of infection.

32. Respondent did not suspect an inside infection of

Patient M. S.'s woun d. He knew that an injury of this nature

carries a high incidence of infection, and believed that

prophylactic antibiotics sufficiently allayed that threat.

When he changed the dressing on February 18, Respondent noted

serous drainage, which he termed no rmal given the amount of

trauma and the extremely large exposure required to perform

the surgery.

33. Respondent also noted the green tinge on the outside

of the dressing. When the drainage soaks through to the

outside of the dressing, it is not unusu al for the outside of

the dressing to become colonized by Pseudomonas bacteria,

which are abundant in the hospital setting. He had no

indication or suspicion that the infection was within the

wound. The wound looked "very good," with no redness or

purule nce, intact with only serous drainage. Respondent put a

clean dressing on the wound and, as a precaution due to the

outside colonization, ordered tobramycin in addition to the

intravenous antibiotics Patient M. S. was already receiving.

34. Respondent noted the fever and elevated white blood

cell count, but also noted that Patient M. S. was afebrile

with a stable hemoglobin when he was released from the

hospital. Fever is common in post - surgical patients for

reasons other than infection. The most com mon cause is the

release of pyrogens by soft tissue trauma. Another common

cause of fever is atelectasis, small areas of collapse in the

lung resembling pneumonia. Patient M. S. received multiple

transfusions, which can cause fever due to the body's immu ne

response. In some instances, antibiotics themselves can cause

a fever.

35. Respondent testified that, after spending eight

hours in surgery, he would have "done anything" to save

Patient M. S.'s leg. If he had suspected an inside infection,

he wou ld have taken the patient back into the operating room,

reopened the wound, and obtained a deep culture.

36. Dr. Lancaster testified that Respondent fell below

the standard of care by discharging Patient M. S. "with a

febrile condition and, potentially, with an infected leg."

Dr. Lancaster believed that the fever and elevated blood count

required an explanation, and that Patient M. S. should not

have been discharged until some effort was made to identify

whether there was an infection. Dr. Lancaster's o pinion is of

questionable value because Patient M. S. was not running a

fever and showed a stable hemoglobin on the date of discharge.

Dr. Lancaster did not directly address how the patient's

apparent stability on February 20 might affect his opinion.

Dr . Lancaster acknowledged that post - surgery fever is common

and not necessarily indicative of an infection.

37. Dr. Sweetser's credible testimony is that, "based on

reasonable medical probability," Patient M. S.'s discharge on

February 20 did not violate the standard of medical care. He

based his opinion on the facts that the patient had no fever,

no increasing swelling in the wound, no redness, no purulent

drainage, and no increase in pain. Nothing in the medical

record provided a reasonable basis for R espondent to reopen

the wound, and that reopening the wound delays healing and

itself heightens the risk of infection.

38. It is found that the Agency failed to establish by

clear and convincing evidence that the standard of care

required reopening the left leg wound for purposes of taking a

deep tissue culture to determine the presence of infection.

The objective facts in the medical record make it reasonable

that Respondent did not suspect infection in the wound on

Patient M. S.’s left leg. Therefor e, his failure to obtain a

wound culture or to consult with an infectious disease

specialist was not outside the standard of care required of

him in this case.

39. Both experts agreed that the chances of saving

Patient M. S.'s leg would have been better if Respondent had

been consulted when the patient presented at St. Joseph's

Hospital in Tampa. The Agency's expert, Dr. Lancaster, stated

that when a patient has a complication, it is better practice

for the operating surgeon to treat it. Dr. Sweetser te stified

that the operating surgeon possesses information for which the

written notes and x - rays cannot substitute.

CONCLUSIONS OF LAW

40. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

cause, pursuant to Sections 120.569, 120.57(1), and 456.073,

Florida Statutes.

41. License revocation and discipline proceedings are

penal in nature. The burden of proof on Petitioner in this

proceeding was to demonstrate the truthfulness of the

allegations in the Comp laint by clear and convincing evidence.

Section 458.331(3), Florida Statutes; Department of Banking

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

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

42. The "clear and convincing" sta ndard 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. T he 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.

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

The findings in this case were made based on the standard set

forth in Osborne Stern and Ferris .

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

the Board of Medicine is authorized to revoke, suspend, or

otherwise discipline the license of a physi cian for violating

the following relevant provision of Section 458.331, Florida

Statutes:

(1)(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 . . .

. As used in this paragraph, "gross

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," shall not be construed

so as to require more than one instance,

event, or act. Nothing in this paragraph

shall be construed to require that a

physician be incompete nt to practice

medicine in order to be disciplined

pursuant to this paragraph.

44. Section 458.331(2), Florida Statutes, provides, in

relevant part:

The board may enter an order denying

licensure or imposing any of the penalties

in s. 456.072(2) agains t any applicant for

licensure or licensee who is found guilty

of violating any provision of subsection

(1) of this section or who is found guilty

of violating any provision of s.

456.072(1).

45. Section 456.072(2), Florida Statutes, sets forth the

scope of discipline available to the Board of Medicine for

violations of Section 458.331(1), Florida Statutes:

(a) Refusal to certify, or to certify

with restrictions, an application for a

license.

(b) Suspension or permanent revocation

of a license.

(c) Restriction of practice or license,

including, but not limited to, restricting

the licensee from practicing in certain

settings, restricting the licensee to work

only under designated conditions or in

certain settings, restricting the licensee

from pe rforming or providing designated

clinical and administrative services,

restricting the licensee from practicing

more than a designated number of hours, or

any other restriction found to be necessary

for the protection of the public health,

safety, and welf are.

(d) Imposition of an administrative fine

not to exceed $10,000 for each count or

separate offense. If the violation is for

fraud or making a false or fraudulent

representation, the board, or the

department if there is no board, must

impose a fine of $10,000 per count or

offense.

(e) Issuance of a reprimand or letter of

concern.

(f) Placement of the licensee on

probation for a period of time and subject

to such conditions as the board, or the

department when there is no board, may

specify. Those conditions may include, but

are not limited to, requiring the licensee

to undergo treatment, attend continuing

education courses, submit to be reexamined,

work under the supervision of another

licensee, or satisfy any terms which are

reasonably tail ored to the violations

found.

(g) Corrective action.

(h) Imposition of an administrative fine

in accordance with s. 381.0261 for

violations regarding patient rights.

(i) Refund of fees billed and collected

from the patient or a third party on b ehalf

of the patient.

(j) Requirement that the practitioner

undergo remedial education.

In determining what action is

appropriate, the board . . . must first

consider what sanctions are necessary to

protect the public or to compensate the

patient. Only after those sanctions have

been imposed may the disciplining authority

consider and include in the order

requirements designed to rehabilitate the

practitioner. All costs associated with

compliance with orders issued under this

subsection are the ob ligation of the

practitioner.

46. The Complaint alleged that Respondent practiced

medicine below the standard of care by failing to perform an

irrigation and debridement of Patient M. S.’s left distal

femur wound within the first 8 - 24 hours of his emerge ncy

admission; failing to obtain cultures of Patient M. S.'s left

distal wound to identify organisms more specifically; and

failing to timely obtain an infectious disease consultation to

determine the cause and extent of Patient M. S.'s infection.

47. Pet itioner established that Respondent failed to

practice Medicine with that level of care, skill, and

treatment which is recognized as being acceptable under

similar conditions and circumstances as set forth in the

charge of failure to perform an irrigation and debridement of

Patient M. S.’s left distal femur wound within the first 8 - 24

hours of his emergency admission. The evidence established

that the standard of care requires urgent irrigation and

debridement of an open fracture, absent life - threatening

c ircumstances, that there were no life - threatening conditions

present in this case, and that Respondent cleaned and dressed

the wound but did not irrigate and debride it within the first

8 - 24 hours of admission. However, the evidence also

established that it was unlikely that Respondent's failure to

irrigate and debride the left leg wound caused the subsequent

infection.

48. Petitioner failed to establish that the standard of

care required Respondent to obtain cultures of Patient M. S.'s

left distal wound to identify organisms more specifically or

to consult with an infectious disease specialist, under the

facts as found above. Both experts agreed with Respondent's

observation that Pseudomonas colonization on the outside of a

saturated dressing is not unc ommon and is not a necessary

indication of infection within the wound. Rather, the

colonization confirms the proximity of Pseudomonas and calls

for the application of prophylactic antibiotics, the course

pursued by Respondent.

49. The only other objecti ve indicia of possible

infection were fever and an elevated white blood cell count,

both of which had stabilized on the date of discharge and

neither of which necessarily indicated the need to reopen a

healing wound to obtain a deep culture. In hindsight, it is

obvious that the more aggressive course advocated by

Dr. Lancaster might have saved Patient M. S.'s leg. However,

the fact that two physicians arrive at different

determinations as to the course of treatment for a patient

does not necessaril y mean that either physician has deviated

from the standard of care.

50. Rule 64B8 - 8.001(3), Florida Administrative Code,

provides aggravating or mitigating factors to be considered in

imposing a penalty upon a licensee. A possible aggravating

factor in this case is "exposure of patient... to injury or

potential injury." However, the weight of the evidence was

that Respondent's failure to irrigate and debride the left leg

wound was not the likely source of the infection. Another

consideration is that Respondent was never consulted when

Patient M. S. presented at St. Joseph's Hospital in Tampa.

Both experts testified that the chances of saving a patient's

leg are maximized when the orthopedic surgeon who performed

the operation is consulted in a situa tion such as this. A

mitigating factor relevant to this proceeding is Respondent's

otherwise spotless disciplinary record in all jurisdictions in

which he has practiced for approximately twelve years.

51. Based upon the totality of the circumstances, it is

concluded that an appropriate penalty would be a reprimand,

ten hours of Continuing Medical Education in orthopedic

medicine to be completed within 12 months of the final order,

and payment of an administrative fine in the amount of

$250.00.

RECOMMENDA TION

Upon the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Department of Health, Board of

Medicine, enter a final order finding that Respondent violated

Section 458.331(1)(t), Florida Statutes, and imposing the

following pe nalty: a reprimand, 10 hours of Continuing Medical

Education in orthopedic medicine to be completed within 12

months of the final order, and payment of an administrative

fine in the amount of $250.00.

DONE AND ENTERED this 4th day of February, 2002, in

Tallahassee, Leon County, Florida.

__________________________________

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hear ings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Fil ing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of February, 2002.

COP IES FURNISHED:

Kim M. Kluck, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317 - 4229

Bruce M. Stanley, Esquire

Henderson, Franklin, Starnes & Holt, P.A.

Post Office Box 280

Fort Myers, Florida 33902

Tanya Wi lliams, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Theodore M. He nderson, 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 ord er. Any

exceptions to this recommended order should be filed with the

agency that will issue the final order in this case.