01-001937PL Department Of Health, Board Of Medicine vs. Michael Bauerschmidt, M.D. Status: Closed Recommended Order on Friday, September 28, 2001.

Summary: Doctor performed adequate examination and diagnosis; and maintained medical records that justified diagnosis and cause of treatment and were adequate for emergency room record keeping.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 01-1937PL

)

MICHAEL BAUERSCHMIDT, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge ("ALJ") Daniel Manry conducted the

administrative hearing of this proceeding on July 26, 2001, in

Ft. Myers, Florida .

APPEARANCES

For Petitioner : Bruce A. Campbell, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent : Bruce D. Lamb, Esquire

Ruden, McClosky, Smith, Schuster,

and Russell, P.A.

401 East Jackson Street, 27th Floor

Tampa, Florida 33602

STATEMENT OF THE ISSUES

The issues for determination are whether Respondent

violated Section 458.331(1)(m) and (t), Florida Statutes (2000),

respectively, by failing to keep medical records that justify

the course of treatment and by failing 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. (All chapter and section

references are to Florida Statutes (2000) unless otherwise

stated.)

PRELIMINARY STATEMENT

On April 3, 2001, Petitioner filed an Administrative

Complaint against Respondent. Respondent timely requested an

administrative hearing.

At the hearing, Petitioner presented the testimony of one

witness and submitted one exhibit for admission in evidence.

Respondent testified in his own behalf, presented the testimony

of one witness, and submitted two exhibits for admission in

evidence. The parties submitted six joint exhibits for

admission in evidence. The identity of the witnesses and

exhibits and any attendant rulings are set forth in the

Transcript of the hearing filed on August 23, 2001.

Petitioner timely submitted its Proposed Recommended Order

("PRO") on August 27, 2001. Respondent timely submitted his PRO

on August 31, 2001. The Transcript was filed August 23, 2001.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for

regulating the practice of medicine in Florida pursuant to

Sections 20.165 and 20.43 and Chapters 455 and 458. Respondent

is licensed as a medical physician in Florida pursuant to

license number ME0057198.

2. Respondent is board certified in emergency medicine and

family medicine. The patient at issue is C.L. C.L. is a 65-

year-old male with a long history of diabetes and foot problems.

3. On February 22, 1999, a physician at Lee Memorial

Hospital ("Lee Memorial") performed a cystoscopy of the urethra

on C.L. Lee Memorial discharged C.L. on the same day with a

Foley catheter connected to a leg bag. Staff removed the

catheter and leg bag on February 23, 1999.

4. C.L. returned to the Lee Memorial emergency room on

February 25, 1999. C.L. presented with complaints of swelling

in the left ankle, myalgia, cough, and nausea. C.L. indicated

that the swelling in his left ankle had been present since the

removal of the leg bag he wore after surgery for kidney stones,

and that the swelling had not gone down as fast as he expected.

The triage nurse noted in the admission notes that the left

ankle was swollen, red, and warm to touch. The nurse also noted

a scab on the left ankle.

5. Respondent was the emergency room physician at Lee

Memorial who examined, diagnosed, and treated C.L. Respondent

did not fail to provide adequate medical care to C.L. in

violation of Section 458.331(1)(t).

6. Respondent obtained an adequate medical history from

C.L. The medical history disclosed that C.L. has a long history

of diabetes with neuropathy and skin ulcers. C.L. also suffers

from hypertension and gastroparesis and is allergic to sulfa.

7. Respondent performed an adequate general examination

of C.L. The general exam showed that C.L. was afebrile with

stable vital signs. C.L.'s lungs were clear to auscultation.

His heart rate and rhythm were regular. His abdomen was soft

without localized tenderness, rebound, or guarding.

8. Respondent performed an adequate focused examination of

C.L.'s lower extremities. Respondent checked pulses

bilaterally, compared the lower extremities, palpated the

swollen area, palpated for tenderness, and observed skin color

and temperature.

9. Respondent ordered adequate laboratory tests for C.L.

The test results showed a high glucose level but showed normal

values of other tested items including white blood cell count

("WBC") and electrolytes.

10. Respondent diagnosed C.L. with viral syndrome and

dependent peripheral edema. The diagnosis of viral syndrome was

consistent with C.L.'s complaints of cough, nausea, and muscle

aches. The diagnosis of dependent peripheral edema attributes

the swelling of the lower extremity to venous insufficiency that

interfered with return of blood from the swollen area to the

heart. However, such venous insufficiency is common in patients

with a long history of diabetes.

11. Respondent correctly prescribed Phenergan for the

nausea and recommended that C.L. rest, increase his fluids,

elevate his leg, and follow up with his HMO physician.

Respondent verbally instructed C.L. to call his doctor the next

day for control of the diabetes.

12. Respondent did not violate Section 458.331(1)(t) by

failing to conduct a range of motion examination on C.L. There

was no history of trauma to the left lower extremity.

Respondent did not observe any asymmetry in C.L.'s lower

extremities, including redness and warmth. Respondent palpated

the left ankle and found the presence of nonpitting edema.

13. Respondent examined C.L. approximately an hour and a

half after the triage nurse observed that the left ankle was red

and warm to touch. C.L. was ambulatory when he entered the

emergency room and had been walking on the ankle for an

undetermined period. After entering the emergency room, the

triage nurse took C.L. off of his legs and elevated the left

lower extremity. The dissipation of redness and warmth between

the examinations by the triage nurse and Respondent is

consistent with both the absence of trauma and the long history

of diabetes.

14. The redness and scab observed by the triage nurse is

consistent with the neuropathy and skin ulceration that

accompanied C.L.'s long history of diabetes. Two podiatrists

have treated C.L. since 1992 and have intermittently observed

the symptoms in C.L.'s lower extremities.

15. Respondent did not observe a scab on the left lower

extremity. Nor did Respondent observe any abnormal redness.

The discrepancy between the observations by the triage nurse and

by Respondent is attributable to Respondent's greater experience

and familiarity of symptoms common to patients with a long

history of diabetes. Patients with diabetes are one of the most

common types of patients seen in emergency rooms. Respondent is

board certified in both family and emergency medicine. He has

more than 15 years' experience in emergency medicine. The

triage nurse had only recently begun as a triage nurse and had

previously worked as a labor and delivery nurse. The redness

and scab observed by the triage nurse were abnormal in her

experience but was normal neuropathy and ulceration for diabetes

patients in Respondent's experience.

16. A physician with experience in treating diabetic

patients expects to see edema of the legs and feet as well as

skin changes, including inflammatory components. Redness and

scabbed or abrasive areas are common to patients with a long

history of diabetes.

17. Respondent did not violate Section 458.331(1)(t) by

failing to conduct further tests to rule out cellulitis.

Respondent properly ruled out cellulitis based on his clinical

findings. Respondent did not observe any redness or warmth in

the left lower extremity. If cellulitis were present in C.L.,

the redness and warmth observed by the triage nurse would not

have dissipated in the period between her examination and that

of Respondent. C.L.'s normal WBC was consistent with other

clinical findings that cellulitis was not present.

18. Respondent did not violate Section 458.331(1)(t) by

failing to conduct a sonogram, or ultra sound, to rule out deep

vein thrombosis ("DVT"). Recent medical studies show that pain

and swelling in the lower extremities are not associated with

any significant medical risk for DVT. A risk for DVT would

require a patient who presented with pain behind the knee or in

the thigh and with a history of significant immobilization.

C.L. did not present any clinical symptoms that justified a

sonogram to rule out DVT.

19. C.L. did not present any of the major risk factors for

DVT such as cancer, estrogen therapy, and prolonged

immobilization after surgery. The same-day surgery on C.L. for

kidney stones did not immobilize C.L.

20. Respondent's expert witness is board certified in

internal medicine, emergency medicine, forensic medicine, and

quality assurance. He has served on the board of quality

assurance in emergency medicine for approximately 20 years. If

Respondent were to have ordered a sonogram in the absence of

clinical findings, it would have constituted an over-utilization

of diagnostic tests and would have been inappropriate under the

circumstances.

21. Respondent did not violate Section 458.331(1)(t) by

failing to order X-rays. There were no clinical findings to

support X-rays. C.L.'s lungs were clear on examination. The

absence of an elevated WBC, the absence of a fever, and the

absence of any abnormal pulmonary function suggested that C.L.

was not suffering from pneumonia, bronchitis, or congestive

heart failure. There was no history of trauma to the left

ankle, and X-rays would have shown only bony structure or

fracture.

22. Respondent did not violate Section 458.331(1)(t) by

failing to treat C.L. for his elevated glucose. The laboratory

tests showed that C.L. had a glucose level of 317. A person

without diabetes and a well-maintained diabetic may have a

glucose level of 200.

23. When the body fails to utilize glucose appropriately a

condition can develop that is known as diabetic ketoacidosis.

The body then attempts to metabolize protein to create energy.

This results in the production of acid which lowers the pH of

the body and causes electrolyte abnormalities. Diabetic

ketoacidosis can result in cardiac arrhythmias and ultimately

lead to death if left untreated.

24. There is no direct correlation between elevated blood

sugar levels and diabetic ketoacidosis. C.L.'s electrolyte

levels were normal. There was no low carbon dioxide level that

would have suggested the presence of acidosis. The normal

electrolyte results showed that C.L.'s high glucose level had

been present for a number of weeks and was a chronic condition,

rather than acute or emergency condition. It was appropriate

for Respondent to refer C.L. to his primary physician for

treatment of the elevated glucose.

25. Respondent verbally instructed C.L. to see his primary

physician the next day. The written instructions given to C.L.

upon discharge instructed C.L. to consult his primary physician

within five to seven days. Both the verbal and written

instructions were appropriate for a patient with a chronic

elevated glucose.

26. Respondent did not violate Section 458.331(1)(t) by

prescribing Phenergan for C.L. It was not medically prudent to

assume that C.L. was already on a pain medication as a result of

the previous surgery for kidney stones. The medical necessity

for pain medication passed with the kidney stones, and the Foley

catheter and bag are painless after insertion.

27. Respondent did not document in C.L.'s medical records

several aspects of the medical history and examination of C.L.

Respondent did not document that he checked pulses bilaterally,

compared the lower legs, palpated for tenderness in the calf,

and observed for skin color and temperature. Respondent did not

document a diagnosis of high blood sugar, that the verbal

recommendation to increase fluids was in recognition of high

blood sugar, or that Respondent recommended that C.L. follow up

the next day with the primary care physician. Respondent did

not document the duration or nature of C.L.'s complaints of

myalgia, cough, and nausea.

28. Respondent did not fail to maintain adequate medical

records in violation of Section 458.331(1)(m). Respondent

documents only positive, or abnormal, findings and does not

document negative, or normal, findings. Respondent's practice

is consistent with that of approximately "99 percent" of

emergency room physicians. Proper record-keeping required

Respondent to document that he observed the peripheral pulses

and palpated the left ankle only if Respondent observed any

negative findings.

29. The reference to the lower left extremity is an

adequate documentation in the medical records. The lower left

extremity refers to that portion of the leg from the knee down.

The patient complained of swelling in the left ankle, and it is

implicit in the chart that the reference to the lower left

extremity means the left ankle. If Respondent made any positive

findings in any other area of the left lower extremity, he would

have noted those positive findings on the chart.

30. The remaining omissions in the medical records are

consistent with the standard applicable to emergency room

physicians. Medical records for emergency medicine are

characteristically less complete than the records of an office

practice. In comparison to the structured environment of an

office practice, the environment of a high-volume emergency

room, such as that at Lee Memorial, is chaotic. The emergency

room physician is constantly called from one problem to the

next. As a general rule, approximately 10 percent of the

emergency patients are critical, 25 percent are very ill, and

fifty percent are fairly minor. There is less time for record-

keeping in the emergency room than there is in a typical office

practice. The medical records maintained by Respondent for C.L.

are quite extensive for an emergency room environment.

31. The medical records maintained by Respondent for C.L.

justified the diagnoses of viral syndrome and peripheral edema.

The medical records also justified the course of treatment.

CONCLUSION OF LAW

32. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter. The

parties received adequate notice of the administrative hearing.

Section 120.57(1).

33. The burden of proof is on Petitioner. Petitioner must

show by clear and convincing evidence that Respondent committed

the violations alleged in Administrative Complaint and the

reasonableness of any proposed penalty. Department of Banking

and Finance, Division of Securities and Investor Protection v.

Osborne Stern and Company , 670 So. 2d 932, 935 (Fla. 1996) ;

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

2d 487 (Fla. 1973) ; Ferris v. Turlington , 510 So. 2d 292 (Fla.

1st DCA 1987).

34. Petitioner did not satisfy its burden of proof.

Disciplinary statutes such as Section 458.331(1)(m) and (t) are

penal in nature and must be strictly interpreted against the

authorization of discipline and in favor of the person sought to

be penalized. Munch v. Department of Business and Professional

Regulation , 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992) ;

Fleischman v. Department of Business and Professional

Regulation , 441 So. 2d 1121, 1123 (Fla. 3rd DCA 1983.) ; Lester

v. Department of Professional and Occupational Regulations,

State Board of Medical Examiners , 348 So. 2d 923 (Fla. 1st DCA

1977).

35. Petitioner must prove each element required in the

statutory definition of the violation by clear and convincing

evidence. In order for evidence to be clear and convincing:

The evidence must be of such weight that it

produces in the mind of the trier of fact a

firm . . . conviction, without hesitancy, as

to the truth of the allegations sought to be

established.

Slomowitz v. Walker , 429 So. 2d 797, 799 (Fla. 4th DCA 1983).

36. The evidence submitted by Petitioner was less than

clear and convincing. It consisted of the testimony of an

expert witness who was not present during the examination of

C.L. The witness based her testimony concerning the allegation

that Respondent failed to provide adequate care to C.L. on a

review of the records.

37. The testimony of all three of the witnesses at the

hearing was credible and persuasive. However, the burden of

proof is on Petitioner. Petitioner must satisfy its burden with

clear and convincing evidence. The difference of opinion

between equally credible and persuasive experts did not leave

the trier of fact a firm conviction, without hesitancy, of the

truth of the allegations Petitioner had the burden of proving.

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 Section 458.331(1)(m)

and (t) and dismissing the Administrative Complaint.

DONE AND ENTERED this 28th day of September, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL MANRY

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of September, 2001.

COPIES FURNISHED :

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32309-1701

Tanya Williams, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32309-1701

Bruce A. Campbell, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

Bruce D. Lamb, Esquire

Ruden, McClosky, Smith, Schuster,

and Russell, P.A.

401 East Jackson Street, 27th Floor

Tampa, Florida 33602

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.