01-004925PL Department Of Health, Board Of Medicine vs. Christopher Baker, M.D. Status: Closed Recommended Order on Friday, July 19, 2002.

Summary: Petitioner failed to prove that Respondent did not intervene properly after patient deteriorated neurologically following bifrontal craniotomy; not below standard of care; dismiss.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 01 - 4925PL

)

CHRISTOPHER BAKER, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held before Daniel M. Kilbride,

Administrative Law Judge, Division of Administrative Hearings,

on April 23, 2002, in Orlando, Florida.

APPEARANCES

For Petitioner: Shirley J. Whitsitt, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 39 - A

Tallahassee, Florida 32308

For Respondent: Michael R. D'Lugo, Esquire

Wicker, Smith, O'Hara, McCoy,

Graham & Ford, P.A.

Post Office Box 2753

Orlando, Florida 32802 - 2753

STATEMENT OF THE ISSUES

Did Respondent's failure to intervene in the post - operative

period immediately after learning the CT scan result s of Patient

C.O. near midnight on April 12, 1997, constitute treatment that

fell below the standard of care and that he 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), Florida Statutes?

PRELIMINARY STATEMENT

On November 19, 2001, an Administrative Complaint was filed

against Respondent alleging that he failed to practi ce medicine

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

recognized by the profession. Respondent denied the allegations

and requested a formal hearing. This matter was referred to the

Division of Administrative Hearings on December 27, 2001, a nd

discovery ensued. The case was set for hearing, but was

continued once at the request of Respondent.

At the hearing, certain facts were stipulated as not in

dispute. Petitioner offered one exhibit, which was admitted in

evidence, and presented the tes timony of Dean Lohse, M.D., an

expert witness, who appeared by videoconference from

Jacksonville, Florida. The parties stipulated to the admission

of certain medical records, identified as pages 62 through 288,

which were admitted in evidence as Joint Exh ibit 1. Respondent

testified in his own behalf, two exhibits were admitted into

evidence, and offered the late - filed deposition of R. Patrick

Jacob, M.D., an expert witness, taken on May 8, 2002. Exhibits

received in conjunction with the deposition are a dmitted in

evidence and lettered Petitioner's Exhibits A - D and numbered

Respondent's Exhibits 1 - 4.

A Transcript of the hearing was filed on May 20, 2002, and

the deposition of Dr. Jacob was filed on May 28, 2002.

Petitioner filed its proposed findings of fact and conclusions

of law on June 3, 2002. Respondent filed his proposals on

June 7, 2002. Both proposals have been given careful

consideration in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged w ith regulating

the practice of medicine in Florida.

2. Respondent is a licensed physician in the State of

Florida at all times material to the times alleged in the

Complaint, having been issued license number ME 0070668.

3. Respondent, as of May 2001, is board - certified in the

area of neurological surgery.

4. On April 3, 1997, Patient C.O., a 50 - year - old male,

presented to an Otolaryngologist (ear, nose and throat surgeon)

with complaints of right side nasal polyps.

5. On April 7, 1997, Patient C.O.'s s urgeon ordered a

radiological consult and a Coronal CT (up, down, front and back)

scan of the right maxillary sinus. The CT scan revealed

"complete opacification (blockage) of the left frontal, right

ethmoid, right maxillary sinus, as well as the right na sal

cavity with complete opacification of right sphenoid sinus."

6. On April 9, 1997, Patient C.O. underwent a surgical

procedure to remove nasal polyps. The surgeon removed an

extremely large right nasal polyp, measuring approximately 10 cm

in length. After removing the large mass, the surgeon noted

smaller polyps and removed these also. After removing the

polyps, the surgeon noted a "large pulsatile mass," which he

biopsied. Biopsy results indicated that the "mass" was brain

tissue.

7. During the co urse of this procedure, the patient's

cribriform plate had been pierced. This plate forms a barrier

between the nasal cavity and the base of the brain. As a result

of this puncture, the surgeon had removed a portion of Patient

C.O.'s brain.

8. The surge on requested an intraoperative consult with

Respondent. The surgeon and Respondent talked by telephone and

Respondent recommended sealing off the brain tissue with a

surgical flap and packing. An arteriogram was performed on

Patient C.O. to determine if bleeding was from an artery or

vein. It was determined that the bleeding was from a vein. He

also, recommended placing Patient C.O. in the neurological

intensive care unit, which was done, and the patient was

stabilized.

9. A CT scan, ordered by the sur geon, noted a right

frontal hemorrhage and pneumoncephalus (air at the top of the

skull).

10. On April 10, 1997, drainage was noted from the right

nostril of Patient C.O. Respondent noted that drainage was

suspicious for cerebrospinal fluid (CSF). Respo ndent then

considered various options in order to stop the leakage of CSF.

11. On April 10, 1997, Respondent performed a surgical

procedure which placed a spinal drain in Patient C.O. to control

the intracranial pressure and to permit an outlet for the CS F.

Respondent was attempting to allow the rupture to the cribriform

plate to heal on its own.

12. On April 11, 1997, a CT scan revealed large areas of

air in the frontal areas of the skull.

13. On April 12, 1997, it was determined that the rupture

of th e cribriform plate had not healed on its own. Patient C.O.

had persistent drainage from the right nostril. He was taken to

the operating room for a direct intracranial surgical repair of

the defect. A CT scan demonstrated an increase in the frontal

hemo rrhage, a large left subdural hematoma, and brain swelling.

On the afternoon of April 12, 1997, Respondent performed a bi -

frontal craniotomy on Patient C.O. to close off the leaking of

spinal fluid from the brain in the area behind the patient's

forehead (CSF leak). The surgery began at 12:15 p.m. and

anesthesia was initiated at approximately 12:30 p.m. on

April 12, 1997, and surgery concluded at about 5:00 p.m. The

procedure involved making an incision across the top of the

scalp, from ear to ear, gain ing access to the brain by making

incisions in the cranium, then lifting the brain to allow access

to the cribriform plate. This was accomplished without

incident.

14. During the post - operative period, the anticipated

reaction of the patient was to retur n to post - operative status,

or to improve neurologically beginning within two hours after

the surgery ended.

15. During the course of post - operative care, Patient

C.O.'s vital signs and neurological statistics were constantly

monitored. Patient C.O. did not show any improvements several

hours after surgery as would be expected, but began to show

signs of neurological deterioration. Because Patient C.O. did

not improve neurologically after the surgery, Respondent, at

about 9:30 p.m. on April 12, 1997, ord ered a CT scan to be done

immediately. Patient C.O. was taken for his CT scan around

10:45 p.m. The CT scan report by radiologist at Florida

Hospital was called in to the hospital unit at 11:50 p.m. on

April 12, 1997.

16. Respondent was at home in bed, sleeping, when he was

paged. Respondent called in and was told by telephone of the

"wet read" results of the CT scan by the neuroradiologist.

After obtaining the CT scan report, Respondent disagreed with

the neuroradiologist's recommendations, ordered th e continuation

of the interventions which he had previously ordered, and issued

no new medical orders.

17. The April 12, 1997, CT scan results were reduced to

writing and showed the following findings, when compared to the

CT scan taken of Patient C.O., o n April 11, 1997:

Noncontrast examination shows numerous

abnormal findings. Compared to the 04/11/97

study acute left subdural hemorrhage is

similar. There is a large intraparenchymal

frontal hemorrhage that has a similar

appearance . . . .

(a) DIFFU SE INTRACEREBRAL SWELLING

PROBABLY WORSE IN THE POSTERIOR FOSSA.

OBLITERATED FOURTH VENTRICLE. VENTRICLE

SIZE SIMILAR.

(b) INCREASED BLOOD FRONTAL REGION.

(c) UNCHANGED SUBDURAL LEFT POSTERIOR

PAREITAL REGION.

(d) VENTRICULAR SIZE STABLE.

(e) PNEUMOCEPHALUS UNCHANGED.

(f) INTRAVENTRICULAR BLOOD STABLE.

18. At 5:15 a.m. on April 13, 1997, Patient C.O.'s

neurological status took a significant turn for the worse. The

patient was interbated, and all appropriate measures were taken

to attempt to revive the patient. Patient C.O. lapsed into coma

and was unable to breathe sufficiently for himself; he sustained

respiratory failure and coma. In the early morning hours of

April 13, 1997, Patient C.O's neurological status was discussed

with his fa mily, and the decision was made to execute a do - not -

resuscitate order. The patient never recovered and died two

days later on April 15, 1997.

19. Petitioner alleges that the standard of care required

Respondent to take some affirmative or new action to i ntervene

post - operatively on the night of April 12 through 13, 1997, to

determine the cause of the deterioration and prevent

irreversible brain damage.

20. In support of Petitioner's position with regard to

Respondent's standard of care, it presented the testimony of

Dean C. Lohse, M.D. Dr. Lohse is a board - certified neurosurgeon

who is licensed to practice medicine in the State of Florida.

Dr. Lohse is a similar health care provider to Respondent, and

he qualifies as an expert witness under Florida law . Dr. Lohse

testified that he had several criticisms of the manner in which

Respondent managed Patient C.O.'s post - operative care.

Dr. Lohse was critical of the manner in which Respondent reacted

to the information which was provided to him regarding th e CT

scan which was taken on the night of April 12, 1997, and which

was communicated to Respondent at approximately midnight on that

same night. In response to this information, Dr. Lohse was of

the opinion that Respondent should have initiated some new

i ntervention, including returning Patient C.O. to surgery,

initiating medications to reduce swelling, introducing a

pressure monitor, or changing the position of the lumbar drain.

However, during the course of cross - examination, Dr. Lohse

conceded that he could not say whether a return to surgery would

have resulted in a different outcome for Patient C.O. Likewise,

he could not state to within a reasonable degree of medical

probability whether the introduction of medications to reduce

the swelling would ha ve worked. He could not state within a

reasonable degree of medical probability whether the placement

of a pressure monitor would have created a different result.

Finally, he conceded that the issue of changing the lumbar drain

was best left to the clini cal judgment of the physician who is

presiding over the care of the patient.

21. Respondent testified on his own behalf at the final

hearing. Respondent explained the April 12, 1997, craniotomy

which he performed. He also explained the course of treatme nt

which was followed with Patient C.O. in the hours subsequent to

the conclusion of the craniotomy. Respondent explained his

rationale behind ordering a stat CT scan, and he described the

basis for his response to the information received at that time.

Respondent testified that although he considered a return to

surgery based upon the information contained within the CT scan,

he decided against this option, as performing another surgery

would only have been for the purpose of removing additional

portions of Patient C.O.'s brain, including areas of the brain

which are designed to control significant elements of an

individual's personality. Respondent made the determination at

that time that performing another surgical procedure would

likely have caused mo re harm than good. Respondent testified

that brain swelling reducing medication had been introduced

previously and that the introduction of more or different brain

swelling - reducing medications would not have addressed Patient

C.O.'s condition. Responden t testified that the placement of a

pressure monitor would have been pointless, given the

information which he was able to obtain during the course of the

craniotomy procedure.

22. A pressure monitor is designed to measure increased

levels of pressure on the brain. Patient C.O. was suffering

from the opposite problem. Patient C.O.'s brain was actually

flaccid, suffering from an absence, rather than an

overabundance, of pressure. Therefore, the placement of a

pressure monitor was never considered, as it would not have been

of any use under the circumstances.

23. Respondent testified that there was no need to change

the aspect of the lumbar spinal drain. The lumbar spinal drain

in this particular case was adequately controlled, at 5 ccs per

hour. Thus, the use of the spinal drain was appropriate under

the circumstances. Respondent's testimony is credible.

24. Respondent also presented expert testimony, via

deposition, of R. Patrick Jacob, M.D. Dr. Jacob is a board -

certified neurosurgeon who currently works at the University of

Florida in Gainesville. Dr. Jacob testified as to his

education, training, and experience. He is a similar health

care provider to Respondent, qualifies as an expert under

Florida law, and can render expert medical opinions reg arding

the applicable standard of care in this case.

25. Dr. Jacob testified that in his opinion, to within a

reasonable degree of medical probability, Respondent met the

applicable standard of care. He addressed each of the specific

criticisms raised by Dr. Lohse. He specifically rejected the

idea that another surgical procedure should have been performed,

stating that to do so would have done more harm than good. He

rejected Dr. Lohse's contention that the introduction of

additional medications to red uce swelling would have been

appropriate. Dr. Jacob disagreed with Dr. Lohse's suggestion

that the placement of a pressure monitor would have been

appropriate under the circumstances of this case. Finally,

Dr. Jacob took issue with Dr. Lohse's opinion t hat a change in

the lumbar spinal drain was warranted given Patient C.O.'s

condition. On cross - examination, Dr. Jacob testified that he

felt that Respondent's response to the information contained

within the April 12, 1997, CT scan was appropriate. He wa s then

presented with hypothetical questioning regarding whether doing

nothing in response to the information contained within the CT

scan would have been appropriate. Dr. Jacob testified that

doing nothing in response to the information contained within

the CT scan report may have constituted a deviation from the

accepted standard of care.

26. However, according to Dr. Jacob's review of the

records, and Respondent's testimony at the final hearing, it is

apparent that a decision was made by Respondent to continue with

the interventions which had already been initiated, which under

the circumstances of this case constitutes an affirmative act by

Respondent to address the treatment and care of Patient C.O.

Dr. Jacob's testimony is both credible and persuasi ve.

27. The evidence is not clear and convincing that

Respondent failed to intervene in the post - operative period

immediately after learning the CT scan results of Patient C.O.

around midnight on April 12, 1997.

28. Respondent did not fail to take approp riate action

after learning the results of the CT scan at midnight on

April 12, 1997. Respondent ruled out several options and

elected to continue with the interventions already initiated.

29. Therefore, Respondent did not fall below the standard

of c are for similarly situated neurosurgeons and his actions on

April 12 through 13, 1997, did not constitute a failure to

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

recognized by a reasonably prudent similar neurosurgeon as being

acceptab le under similar conditions and circumstances.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding, pursuant to Sections 120.569 and 120.57(1), Florida

Statutes, and Se ction 456.073, Florida Statutes.

31. Pursuant to Section 458.331(2), Florida Statutes, the

Board of Medicine is empowered to revoke, suspend or otherwise

discipline the license of a physician for the following

violations of Section 458.331(1)(t), Florida Statutes:

(t) Gross or repeated malpractice or the

failure to practice medicine with that level

or care, skill and treatment which is

recognized by a reasonably prudent similar

physician as being acceptable under similar

conditions and circumstances. . . .

32. When the Board finds any person guilty of any of the

grounds set forth in Subsection (1), it may enter an order

imposing one or more of the following penalties:

(a) Refusal to certify, or certification

with restrictions, to the department an

a pplication for licensure, certification, or

registration.

(b) Revocation or suspension of a

license.

(c) Restriction of Practice.

(d) Imposition of an administrative fine

not to exceed $10,000 for each count or

separate offense.

(e) Issuance of a reprimand.

(f) Placement of the physician on

probation for such a period of time and

subject to such conditions as the board may

specify, including, but not limited to,

requiring the physician to submit to

treatment, to attend continuing education

co urses, to submit to reexamination, or to

work under the supervision of another

physician.

(g) Corrective action.

Rule 64B8 - 8.001(2)(t), Florida Administrative Code.

33. License disciplinary proceedings are penal in nature.

State ex rel, Vining v. Flo rida Real Estate Commission , 281 So.

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

must prove the alleged violations of Section 458.331(1)(t),

Florida Statutes, by clear and convincing evidence. Department

of Banking and Finance, Divisi on of Securities and Investor

Protection v. Osborne, Stern & Co. , 670 So. 2d 932 (Fla. 1996);

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

Addington v. Texas , 441 U.S. 418 (1979).

34. The definition of "clear and convincing" evidence is

adopt ed from Solmowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th

DCA 1983), which provides:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must distinctly remembered; the

testimon y 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 o f the allegations sought to be

established.

See also Smith v. Department of Health and Rehabilitative

Services , 522 So. 2d 956 (Fla. 1st DCA 1988).

35. Applying this standard, Petitioner has not met its

burden of proving be clear and convincing evidence that

Respondent violated Section 458.331(1)(t), Florida Statutes.

36. Based upon the testimony elicited at the final

hearing, the medical records, and Dr. Jacob's deposition

testimony, the proof presented does not produce a firm belief or

conviction, with out hesitancy, that Respondent deviated from the

standard of care in this case. At best, the testimony is

conflicting as to whether such a deviation occurred.

37. Dr. Lohse testified as to numerous areas in which he

felt Respondent's care of Patient C. O. did not meet the

applicable standard of care. However, as to each of these

points, Dr. Lohse later contradicted himself; he testified that

he could not say to within a reasonable degree of medical

probability if Respondent had performed the acts which Dr. Lohse

claimed were required would have resulted in Patient C.O.

surviving, or simply that the determination of the issue

was best left to the clinical judgment of the practitioner

presiding over the case. In addition, a number of the factual

bases wh ich Dr. Lohse used to formulate his opinions were

specifically contradicted by Respondent during the course of his

testimony, including the introduction of brain swelling - reducing

medications, and the restriction placed upon the lumbar spinal

drain.

38. R espondent's testimony was credible and Dr. Jacob's

testimony, presented via deposition testimony taken after the

April 23, 2002, final hearing, pursuant to the order entered

prior to the final hearing, is credible and persuasive.

Dr. Jacob is of the opin ion that Respondent did not deviate from

the standard of care in his treatment of Patient C.O. Dr. Jacob

did appear to concede during the course of his deposition that

if certain hypothetical facts were assumed to be true, then the

failure of Respondent t o take any affirmative steps in response

to the information contained within the CT scan report of

April 12, 1997, might constitute a deviation from the standard

of care. However, it is not readily apparent that this

hypothesis is based upon the actual f acts of this case, as the

proposed hypothesis is contradicted not only by Respondent's own

testimony, but also by the medical records which were submitted

into evidence at the final hearing.

39. Therefore, Petitioner has not met its burden of proof

in thi s case, and no disciplinary action should be taken against

Respondent.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that the Board of Medicine issue a final order

finding that Respondent has not violated Section 458.331(1)(t),

Florida Statutes, and dismissing the Administrative Complaint.

DONE AND ENTERED this 19th day of July, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSot o 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 19th day of July, 2002.

COPIES FURNIS HED :

Michael R. D'Lugo, Esquire

Wicker, Smith, O'Hara, McCoy,

Graham & Ford, P.A.

Post Office Box 2753

Orlando, Florida 32802 - 2753

Shirley J. Whitsitt, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 39 - A

Tallahassee, Flori da 32308

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 William s, 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

15 days from the date of this Recomme nded Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.