01-004923PL Department Of Health, Board Of Medicine vs. Walter Ray Deal, M.D. Status: Closed Recommended Order on Tuesday, July 2, 2002.

Summary: Physician allegedly failed to meet standard of care; not guilty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 01 - 4923PL

)

WALTER RAY DEAL, M.D., )

)

Respondent. )

)

RECOMMENDED O RDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Jeff B. Clark, held a formal administrative hearing in this case

on March 22, 2002, in Tampa, Florida.

APPEARANCES

For Petitioner: Ephraim D. Livingston, Esquire

Agency for Health Care Administration

Post Office Box 14229, Mail Stop 39A

Tallahassee, Florida 32317 - 4229

For Respondent: William Taylor, Esquire

Macfarlane, Ferguson & McMullen

Post Office Box 1531

Tampa, Florida 33601

STATEMENT OF THE ISSUES

Whether or not Respondent, Walter Ray Deal, M.D., violated

Subsection 458.331(1)(t), Florida Statutes , and, if so, what

discipline should be imposed?

PRELIMINARY STATEMENT

On November 19, 2001, Petitioner, Department of Health,

Board of Medicine, filed an Administrative Complaint alleging

that Respondent, Walter Ray Deal, M.D., failed 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 in his

treatment of Patient E.R. from April 6 through 7, 2002, in

violation of Subs ection 458.331(1)(t), Florida Statutes.

On December 3, 2001, Respondent filed an Election of Rights

disputing the allegations of fact contained in the

Administrative Complaint and requesting a formal hearing. On

December 27, 2001, the case was transmitted by the Agency for

Health Care Administration to the Division of Administrative

Hearings.

On December 31, 2001, an Initial Order was sent to the

parties. On January 16, 2002, the case was set for final

hearing on March 21 and 22, 2002, in Tampa, Florida. On

February 21, 2002, Respondent requested that the hearing be

rescheduled to March 22, 2002. On March 20, 2002, the parties

filed a Joint Prehearing Stipulation which contained admitted

facts which are incorporated into this Recommended Order.

At the M arch 22, 2002, final hearing, Petitioner presented

the testimony of Jerry Jacobson, M.D., an expert witness;

Barbara Bass, R.N.; and Rajesh Dave, M.D., by deposition.

Petitioner presented six exhibits which were admitted into

evidence and numbered Petitio ner's Exhibits 1 - 5 and 8.

Respondent presented himself and the testimony of Henry

Smoak, III, M.D.; Edward M. Copeland, IV, Esquire; and Don

Giffin, L.P.N., by deposition. Respondent offered one exhibit

which was admitted into evidence and marked Responde nt's

Exhibit 1.

At the close of the testimony, the parties requested

30 days after the transcript of proceedings was filed with the

Division of Administrative Hearings to file proposed recommended

orders. The Transcript of proceedings was filed on April 11,

2002.

On April 4, 2002, Petitioner filed a Motion to Reopen File,

which was granted. On April 24, 2002, Respondent filed a Motion

for Extension of Time to File Proposed Recommended Orders, which

was granted. The parties had until June 10, 2002, to f ile

proposed recommended orders. On June 3, 2002, Petitioner filed

a Motion for Extension of Time to File Proposed Recommended

Orders, which was granted. The parties had until June 17, 2002,

to file proposed recommended orders. Both parties timely filed

Proposed Recommended Orders which were thoughtfully considered

in the preparation of this Recommended Order.

FINDINGS OF FACT

Based on the evidence and the testimony of witnesses

presented and the entire record in this proceeding, the

following findings o f fact are made:

1. Petitioner, Department of Health, Board of Medicine, is

the state agency charged with regulating the practice of

medicine pursuant to Section 20.42, Florida Statutes, Chapter

456, Florida Statutes, and Chapter 458, Florida Statutes.

2. Respondent, Walter Ray Deal, M.D., is and has been, at

all times material to the Administrative Complaint filed in this

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

been issued license number ME 0056589.

3. At or around 6:25 p.m. on Apri l 6, 2000, Patient E.R.

presented at the Emergency Room of Morton Plant Mease Health

Care/North Bay Hospital, with pain and swelling in the right

lower extremity.

4. The Emergency Triage/Assessment Form, which is

completed by nurses in the Emergency Room, reports that Patient

E.R., who was first seen at 6:30 p.m., was 73 years old and had

a chief complaint of "pain to RLE [right lower extremity] for a

very long time, swollen . . ." This form also contains

information on Patient E.R.'s current medical stat us including

medications and a medical history.

5. Respondent first examined Patient E.R. at approximately

7:15 p.m.; she reported her chief complaint to be chronic pain

in the right knee which had worsened since Dr. Zaidi, a

rheumatologist, had drained the knee.

6. During his examination, Respondent checked (placed a

checkmark) on the Emergency Physician Record indicating that in

his examination he found the patient's heart had regular rate

and rhythm and normal heart sounds.

7. At 7:30 p.m., Responde nt noted in Patient E.R.'s

treatment plan: "Labs, Pain Meds, IV Antibx." This record

reflects that Respondent ordered that the patient be

administered 50 mg of Demerol and 50 mg Phenergan and 500 mg of

Leviquin intramuscularly and the ESR (erythrocytic s edimentation

rate), which is a nonspecific test for inflammatory responses.

The pain medication appears to have been administered almost

immediately (7:35 p.m.); the antibiotic at approximately

8:12 p.m.

8. There is controversy about what "Labs" were or dered by

Respondent. His testimony indicates that he ordered the CBC,

the comprehensive metabolic, and the urine laboratory

chemistries.

9. The hospital records indicate that the following

additional diagnostic tests were ordered: Cardiac Enzymes and

Tr oponin chemistries, an E.K.G. and portable chest x - ray. It

appears from the hospital records that a different writing

instrument (the ink colors are different) and, perhaps, a

different hand ordered the diagnostic tests mentioned in this

paragraph.

10. T he results of the chemistries ordered by Respondent

are reported on the Emergency Physician Record; the Emergency

Physician Record does not contained results of an E.K.G. or x -

ray. In addition, laboratory reports for non - cardiac - related

chemistries are on Lab Acn# 54968; laboratory reports for

cardiac related chemistries are on Lab Acn# 54984. While the

sample collection time for the blood tests is 7:20 p.m., the

cardiac - related tests were conducted later in the evening than

the non - cardiac related tests.

11. The controversy regarding what tests were ordered by

Respondent is further clouded by the testimony of Rajesh Dave,

M.D., who in the late evening of July 6, 2000, admitted Patient

E.R. to the hospital, and Respondent's narrative letter dated

February 1, 2001, directed to the Agency for Health Care

Administration, in which he acknowledges ordering all of the

diagnostic tests mentioned hereinabove.

12. Prior to hearing, Respondent retracted the admission

contained in his letter to the Agency for Healt h Care

Administration to ordering the Cardiac Enzymes and Troponin

chemistries, the E.K.G. and chest x - ray. The retraction was

based on confusion between Respondent and his attorney which was

confirmed by the testimony of Edward Copeland, Esquire, the

att orney who prepared the narrative letter signed by Respondent.

I find that the testimonies of Respondent and Mr. Copeland are

credible and find that someone other than Respondent ordered the

diagnostic tests which are in question.

13. Dr. Dave denied orde ring the cardiac - related tests; he

denies even being in the hospital that evening. His testimony

is in conflict with Respondent's and Emergency Room Nurse Don

Giffin's nursing notes, which state: "Dr. Dave here to examine

patient and wrote orders." Dr. Dave became responsible for

Patient E.R.'s care and treatment when she was ordered admitted

to the hospital at 9:45 p.m.

14. Respondent testified that he had two conversations

with Dr. Dave on July 6, 2002; the first, a telephone

conversation, immediate ly prior to first seeing Patient E.R. and

the second, a face - to - face conversation, at approximately

9:30 p.m. at the front desk of the Emergency Room. After the

second conversation, Respondent wrote orders to admit Patient

E.R. for a "23 hour admission" to the hospital as Dr. Dave's

patient and ordered consultations with other physicians. He

wrote other admission orders, ordered medications and "ivf d5

1/2 NS 40 meq kcl/l @ 125cc hr" (intravenous fluids one - half

normal saline with 40ml equivalents of pot assium chloride per

liter at 125 cc per hour).

15. North Bay Hospital protocol does not allow an

Emergency Room physician to admit a patient to the hospital.

Respondent was acting as a scrivener for Dr. Dave when he

entered the orders admitting Patient E .R. to the hospital.

16. At 8:17 p.m. the laboratory reported to the Emergency

Room that Patient E.R. had a low serum potassium level.

17. Petitioner's expert witness opined that Respondent

fell below the standard of care when, after becoming aware of

t he low serum potassium level (which the expert deemed

"critically low"), he did not immediately order an E.K.G. to

determine the appropriate speed of potassium supplementation.

He further opined that Respondent either did not read the E.K.G.

or did not pr operly evaluate it. He further opined that the

rate of potassium supplementation as ordered by Respondent was

completely inadequate.

18. The results of the Cardiac Enzymes and Troponin tests

were normal. The E.K.G. test was given and the results

simulta neously published at 10:04 p.m. The E.K.G. showed a run

of non - sustained ventricular tachycardia which is a potentially

fatal arrhythmia.

19. After being ordered admitted as a 23 - hour admission as

Dr. Dave's patient at 9:45 p.m., Patient E.R. arrived at the 23 -

hour floor at 10:30 p.m. The hospital records reflect that at

10:20 p.m., the floor nurse was advised by the Emergency Room

nurse of the low serum potassium, of the physician's orders for

potassium supplementation, and that the potassium

supplement ation ordered was not available in the Emergency Room.

The 23 - hour floor nurse's notes reflect that she "advised that

we have none at this time."

20. Following Patient E.R.'s admission, at approximately

10:45 p.m., Dr. Dave was called and advised of the admitting

orders including the rate of potassium supplementation. While

he changed some of the orders, he did not change the rate of

potassium supplementation. He did change Patient E.R.'s

admission from a 23 - hour admission to a full admission which

nece ssitated transferring Patient E.R. to the Third Floor of the

hospital.

21. At 11:10 p.m. the 23 - hour floor nurse received a bed

assignment on the Third Floor and gave a report to the Third

Floor nurse; the 23 - hour floor nurse's notes include the

following : "report . . . including low K [potassium] and need

for D5 1/2 NS c 40 meq KCL [the ordered potassium

supplementation] she said they had on 3rd floor and will be able

to start fluids."

22. The 11:55 p.m. Third Floor nurse's notes reflect that

the "IVF s tarted." Patient E.R. expired shortly after 3:00 a.m.

23. Respondent's expert witness opined that Respondent did

not fall below the standard of care in his treatment of Patient

E.R.; that is, that Respondent practiced medicine with that

level of care, sk ill, and treatment which is recognized by a

reasonably prudent similar physician as being acceptable under

similar conditions and circumstances. He opined that Respondent

rendered appropriate treatment to Patient E.R., who presented

with knee pain and had no cardiac or respiratory complaints. He

further opined that, while the serum potassium level was low and

needed to be addressed, no symptoms or complaints were

demonstrated pertaining to low potassium level and nothing was

evident that raised cardiac is sues; the low potassium was not

critically important in this clinical situation and was a common

presentation for an older person. He opined that based on the

clinical evaluation and findings by the Emergency Room staff and

physician, even with the low po tassium, no E.K.G. was warranted.

I find the opinion rendered by Respondent's expert witness to be

more credible than the opinion offered by Petitioner's expert

witness and accept the opinion of Respondent's expert.

Respondent's expert's opinion was rein forced, in part, by the

continuing treatment afforded Patient E.R. by Dr. Dave after she

was admitted to the hospital.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

cause p ursuant to Subsection 120.57(1), Florida Statutes.

25. The Board of Medicine is empowered to revoke, suspend

or otherwise discipline the license of a physician for violation

of Subsection 458.331(1)(t), Florida Statutes.

26. License revocations and discipline procedures are

penal in nature. Petitioner must demonstrate the truthfulness

of the allegations in the Administrative Complaint dated

November 19, 2001, by clear and convincing evidence. Department

of Banking and Finance v. Osborne Stern and C ompany , 670 So. 2d

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

1987).

27. 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 remembere d; 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.

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

28. Because the discipline imposed for the violation of

Subsection 458.331(1)(t), Florida Statutes, is penal in nature,

the statute a lleged to have been violated, 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 Regulation , 443 So. 2d 373 (Fla. 1st DCA 1983);

Bowling v. Department of Insurance , 394 So. 2d 165 (Fla. 1st DCA

1981).

29. Where the licensee is charged with a violation of

professional conduct and the specific acts or conduct required

of the professional are explicitly se t 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. Department of Professional

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

30. Petitioner has charged Respondent with violating the

following relevant provisions of Subsection 458.331(1)(t),

Florida Statutes:

[T]he failure to practice medicine with that

level of care, skill, and trea tment which is

recognized by a reasonably prudent similar

physician as being acceptable under similar

conditions and circumstances.

31. Petitioner failed to prove that, under the

circumstances, Respondent deviated from the appropriate standard

of care. While there is the proven occurrence of the tragic

death of a patient, that incident alone does not indicate

Respondent fell below the standard of care.

32. In arriving at his opinion, Petitioner's expert

witness testified that Respondent failed to do sev eral things

that the expert witness felt should have been done: (1) he

failed to order an E.K.G. in response to the "critically low"

serum potassium level; (2) if he did order an E.K.G., he failed

to look at it or he failed to properly evaluate it; and (3 ) the

potassium supplementation he ordered was inadequate.

33. In each instance, persuasive evidence was presented

that Respondent did not deviate from the standard of care.

Evidence was offered that Patient E.R.'s symptoms, as presented

in the Emergency Room prior to her admission to the hospital,

warranted the course of treatment ordered by Respondent. It was

not established that he ordered, or should have ordered, an

E.K.G. or ever saw the E.K.G. results on the evening of her

admission; he certainly d id not note the results in the

Emergency Physician Record. While there is a consensus that

Patient E.R.'s potassium level was low, there is marked

disagreement as to its "criticalness," and to the appropriate

level of potassium supplementation ordered by Respondent given

the symptoms demonstrated by the patient.

34. Such equivocal evidence on the critical allegations of

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

and treatment which is recognized by a reasonably prudent

similar physician . . ." does not satisfy the clear and

convincing standard of proof imposed by Florida law.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that Petitioner enter a final order finding

that Respondent is not guilty of violating Subsection

458.331(1)(t), Florida Statutes, as alleged in the

Administrative Complaint.

DONE AND ENTERED this 2nd day of July, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

JEFF B. CLARK

Administrat ive 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 Administr ative Hearings

this 2nd day of July, 2002.

COPIES FURNISHED :

Ephraim D. Livingston, Esquire

Agency for Health Care Administration

Post Office Box 14229, Mail Stop 39A

Tallahassee, Florida 32317 - 4229

William Taylor, Esquire

Macfarlane, Ferguson & McMul len

Post Office Box 1531

Tampa, Florida 33601

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

R.S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee , Florida 32399 - 1701

Tanya Williams, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

1 5 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.