02-001228PL Department Of Health, Board Of Medicine vs. J. Antonio Aldrete, M.D. Status: Closed Recommended Order on Thursday, August 8, 2002.

Summary: Standard of care is violated when Respondent spent six hours in resuscitative measures on patient in office instead of calling for ambulance transport to hospital.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1228PL

)

J. ANTONIO ALDRETE, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge Don W. Davis conducted the

administrative hearing in this matter on June 13 - 14, 2002, in

Shalimar, Florida, on behalf of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Shirley J. Whitsitt, Esquire

James W. Earl, Esquire

Senior Attorneys

Department of Health

Practitioner Regulation - Legal

4052 Bald Cypress Way, Bin # C 65

Tallahassee, Florida 32399 - 3265

For Respondent: Jon M. Pellett, Esquire

Barr, Murman, Tonelli, Slother & Sleet

201 East Kennedy Boulevard, Suite 1700

Tampa, Florida 33602

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent committed

violations of Section 458.331(1), (t), (q), and (m), Florida

Statutes, justifying the imposition of disciplinary measures

against Respondent's medical license, and if so, what penalties

should be imposed.

PRELIMINARY STATEMENT

An Administrative Complaint was filed by Petitioner in

Department of Health (D OH) Case No. 1999 - 58907, on February 25,

2002, against Respondent's license to practice medicine. The

Administrative Complaint charged Respondent with three violations

of the medical practice act, specifically those proscriptions set

forth in Section 458. 331(1)(t), (q), and (m), Florida Statutes.

All three charges or counts in the Administrative complaint were

premised on his care and treatment of patient J.S. on July 28,

1999. Respondent timely disputed the allegations of the

Administrative Complaint an d the case was referred to the Division

of Administrative Hearings for formal hearing.

At the final hearing, Petitioner presented the testimony of

Joyti Patel, M.D., as an expert witness via teleconference and

offered five (5) exhibits in evidence, inclu ding a transcript of

the deposition of B.S., the husband of J.S., which was admitted

with reservation pending a later ruling on Respondent’s

objections to the deposition. Respondent’s Motion to exclude

portions of B.S.’s deposition testimony is now denied and the

deposition transcript has been considered in preparing this

Recommended Order.

At the final hearing, Respondent testified in his own

behalf, and offered the testimony of Thomas Brown, M.D., Sonya

Johnson, Frederika Monpetit, and Valentina Aldret e; and the

expert testimony of William Witt, M.D. and Herbert Ferrari, M.D.

Respondent also presented a total of 13 exhibits.

At the request of the parties, time was extended for the

filing of proposed recommended orders (PROs). The two - volume

Transcript was filed July 9, 2002. Petitioner and Respondent

filed their respective PROs and those submittals have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for

regulating the pract ice of medicine in Florida pursuant to

Section 20.43 and Chapters 456 and 458, Florida Statutes.

2. Respondent is a licensed medical physician in Florida

holding license number ME 15595. Respondent received his Florida

license in 1970 and at the ti me of the formal hearing, he had

practiced medicine for 42 years . He is Board - certified in

Anesthesiology with a Certificate of Added Qualification in Pain

Management. He was Board - certified in anesthesiology in 1967

and received his certificate of added qualification in Pain

Management when it was first offered in 1993.

3. Respondent first evaluated J.S. on December 11, 1998.

At that time, J.S. sought treatment from Respondent for

complaints of severe back and leg pain. She had quite a lengthy

histor y of back problems, having suffered falls in 1986 and

1994, and having undergone four previous back surgeries.

4. J.S. had seen various physicians for her complaints,

and was on various medications, including Prozac, Klonopin,

Prilosec, Premarin, levothyr oxine, and hyoscyamine. She

reported a history of thyroidectomy due to thyroid cancer,

hysterectomy, sinus surgery, and excision of fibromatous tumor

from her right shoulder. She also reported a history of

seizures.

5. On her initial visit to Responde nt's office, J.S.

completed a Pain Management Questionnaire. On the

questionnaire, she indicated she was often forgetful and

suffered from memory deficits and problems with her ability to

concentrate.

6. Between December 1998 and July 28, 1999, J.S. wa s

treated about seven times by Respondent for her back pain. The

treatment consisted of insertion of an epidural catheter and

infusion pump in her back, which would release various

medications, for the purpose of relieving her back pain. J.S.

often retur ned to the office for dressing changes, pump refills,

and reinsertion of the epidural catheter. These procedures were

all completed successfully, without complication. J.S. was very

happy with the results, and reported that the medication

administered vi a the pump was her only relief from pain.

7. On July 28, 1999, Patient J.S. saw the Respondent for

this same procedure. The evidence is undisputed that this type

of treatment by Respondent was medically appropriate to address

J.S.'s pain condition.

8. Respondent placed a catheter through a needle, removed

the needle, and tunneled the catheter – i.e., placed it

underneath the skin in the back of J.S. at the L2 - L3 level of

her back. Respondent then injected medication, including

Marcaine and Fentanyl int o the catheter between 11:33 a.m. and

11:45 a.m. Shortly after the Respondent administered the last

injection of Marcaine to J.S., she said her right leg was

getting numb.

9. Because J.S. stated she had leg numbness, Respondent

turned off the pump to pre vent the further release of

medications into J.S. He then left the room to talk to a new

patient. Respondent returned to the room approximately five

minutes later upon being informed by his office staff that there

was a problem with J.S. When Respondent entered the room, he

found that J.S. was pale, unresponsive, and barely breathing;

her heart rate was 39.

10. The intrathecal space is the spinal canal where spinal

fluid is located. The epidural space is close to the

intrathecal space, and it is easy to go from one space to the

other when trying to inject within the epidural space.

11. Having Marcaine enter the intrathecal space and having

the patient experience a “high spinal” are known complications

of the procedure performed on J.S.

12. A “high s pinal” can cause significant numbness. As

the medication rises up the spinal fluid, it can cause visual

dilation, cardiovascular vascular collapse, and respiratory

problems. For this reason, the occurrence of a “high spinal” is

risky.

13. A physician know s a “high spinal” may be occurring if

a patient complains of numbness in the lower extremities. As

the medication rises upwards toward the upper extremities, the

patient can complain of difficulty breathing, and experience a

drop in blood pressure and hea rt rate. Such patients become

obtunded, or unresponsive, requiring resuscitation.

14. It is uncontroverted that J.S. sustained a “high

spinal” on July 28, 1999, which is a serious medical complication

and life - threatening situation. One of the dangers to J.S .

during the time she experienced the “high spinal” was the

deprivation of oxygen to her organs, including her brain.

15. Respondent had left the room and did not return until

he was notified by office staff of a problem with J.S. As a

result, Respondent did not know how long Patient J.S. had been

without adequate perfusion of her organs, although he estimated

that it could have been anywhere from 30 seconds to two minutes.

16. As depicted in Petitioner's proposed recommended order

and undisputed by Responden t, treatment and legend drugs

administered to J.S. from about noon on July 28, 1999, until

about 6 p.m., when Respondent called for an ambulance, are as

follows:

TIME

(approximately) EVENTS

11:55 am The Respondent began

resuscitative efforts

on Patient J.S. by

administering oxygen

via Ambu bag at 6

liters/minute.

11:58 am The Respondent then

ordered the nurse to

administer 50mg of

Ephedrine (a drug used

in the treatment of

allergies and asthma)

and .15 mg of

Epinephrine (a potent

stim ulant of the

sympathetic nervous

system) to Patient J.S.

in the left deltoid

region.

12:00 pm The Respondent started

an IV of 500 cc of

Lactated Ringers (a

solution containing

sodium chloride,

potassium chloride,

calcium chloride, and

sodium lactate in

d istilled water used to

replenish the body’s

fluids and

electrolytes) in

Patient J.S.’s left

elbow at 75cc/hr and

inserted a tracheal

tube since Patient

J.S’s oxygen saturation

level was in the 80%

range.

12:01 pm The Respondent

administered 50 mcg of

Epi nephrine to Patient

J.S. intravenously.

12:35 pm The Respondent

administered 5 cc of 2%

Lidocaine (a drug used

as a local anesthetic

and to alleviate

irregularities in the

force or rhythm of the

heart) to Patient J.S.

intertracheally.

12:36 pm The Resp ondent

administered 2 cc of 2%

Lidocaine to Patient

J.S. intravenously.

12:37 pm The Respondent pulled

out the epidural

catheter from Patient

J.S.’s back.

12:38 pm The Respondent

administered 50 mcg of

Epinephrine to Patient

J.S. intravenously.

12:39 pm The Respondent

administered 100 mg of

Dilantin (a drug used

to control seizures) to

Patient J.S.

intravenously and noted

that Patient J.S.’s

temperature was 95.6

degrees Fahrenheit.

12:40 pm The Respondent

administered 50 mg of

Bretylium (a drug used

to treat rapid heart

rate and irregularities

in the rhythm of the

heart) to Patient J.S.

intravenously and noted

that Patient J.S.’s

pulse was 150 and her

blood pressure was

178/111.

12:45 pm The Respondent

administered 50 ml of

8.4% Sodium Bicarbonate

s olution (baking soda)

to Patient J.S.

intravenously and noted

that Patient J.S.’s

blood pressure was

163/89, her oxygen

saturation was 99%, and

her pulse was 142.

1:00 pm The Respondent tried to

start another IV of 500

ml of Lactate Ringers

in Patient J. S.’s left

foot, but was

unsuccessful. The

Respondent noted that

Patient J.S.’s blood

pressure was 96/58 and

pulse was 128.

1:08 pm The Respondent

administered 200 mcg of

Neosynephrine (a

decongestant which

constricts blood

vessels) to Patient

J.S. intra venously.

1:15 pm The Respondent started

another IV in Patient

J.S.’s right jugular

vein.

1:45 pm The Respondent noted

that Patient J.S.’s

blood pressure was

113/71, pulse was 114,

and oxygen saturation

was 99%.

1:49 pm The Respondent

administered 0.1 mg of

Narcan to Patient J.S.

intravenously.

1:53 pm The Respondent

administered 0.1 mg of

Narcan (a drug used to

reverse the effects of

opiods) to Patient J.S.

intravenously.

1:54 pm The Respondent

decreased the amount of

oxygen being

administered to Patient

J.S. by way of the Ambu

bag from 6

liters/minute to 4

liters/minute.

2:00 pm The Respondent

discontinued the IV in

the right jugular vein

because it was found to

be infiltrated.

2:01 pm The Respondent

administered 200 mcg of

Neosynephrine to

Patient J.S.

intravenously in the

left arm and started

another IV in the left

foot.

2:13 pm The Respondent

suctioned Patient

J.S.’s trachea and

added a second airway.

2:30 pm The Respondent noted

that Patient J.S. was

breathing on her own,

though she w as wheezing

and having labored

respirations; her

temperature was 96.1

degrees Fahrenheit, her

blood pressure was

100/68, her pulse was

124, and her oxygen

saturation was 92%.

2:34 pm The Respondent

administered 300 mcg of

Neosynephrine to

Patient J.S.

2:45 pm The Respondent

administered 12 mg of

Dexamethasone (a drug

used to treat

inflammatory disorders)

to Patient J.S.

intravenously.

2:52 pm The Respondent

decreased the amount of

oxygen being

administered to Patient

J.S. by way of the Ambu

bag from 4

liters/minute to 1

liter/minute and noted

that Patient J.S.’s

blood pressure was

109/71, pulse was 126,

and oxygen saturation

was 94%.

3:00 pm The Respondent pulled

the tracheal tube out

to 22 cm and re - taped

it.

3:35 pm The Respondent

administered 3 cc of 2%

Xylocaine (a drug used

to alleviate rhythmic

irregularities in the

heart) to Patient J.S.

via the tracheal tube.

3:59 pm The Respondent

administered 500 mg of

Solu - cortef (a drug

used to suppress normal

immune response and

inflammation) to

Pati ent J.S.

intravenously.

4:00 pm The Respondent placed a

nerve stimulator on

Patient J.S.’s right

temporal nerve to check

nerve response and

noted that the patient

moved her head toward

the right when the

nerve stimulator was

activated.

4:20 pm The Resp ondent noted

that Patient J.S. was

moving all four

extremities and opening

her eyes on command.

4:50 pm The Respondent

administered 2 puffs of

Azmacort (a drug used

to combat asthma

attacks) to Patient

J.S. through the

tracheal tube.

5:09 pm The Respon dent started

an IV of 500 ml of

Lactated Ringers in

Patient J.S.’s left

foot.

5:10 pm The Respondent

administered 1 mg of

Brevibloc (a drug used

to lower blood

pressure) to Patient

J.S. intravenously.

5:14 pm The Respondent

administered 1 mg of

Brevibl oc to Patient

J.S. intravenously.

5:24 pm The Respondent

administered 250 mcg of

Lanoxin (a drug used to

increase cardiac output

and lower the heart

rate) to Patient J.S.

intravenously.

5:35 pm The Respondent

administered 250 mcg of

Lanoxin to Patient J.S.

intravenously.

5:36 pm The Respondent

administered dura tears

ointment to Patient

J.S.’s eyes.

5:58 pm The Respondent called

911 for emergency

transport of J.S. to

the hospital.

17. Following Respondent's 911 call for a ambulance crew to

transpo rt J.S. to Fort Walton Beach Medical Center at

approximately 5:58 p.m., Emergency Medical Services (EMS)

personnel arrived at approximately 6:15 p.m.

18. When the EMS personnel arrived at the Respondent’s

office, J.S. was unstable, with a high heart rat e of 153, pale,

and unresponsive.

19. At approximately 6:40 p.m., J.S. arrived at Fort Walton

Beach Medical Center and was admitted to the Emergency Room.

20. Respondent was not allowed to see J.S. at the hospital .

21. As established by testimony of Dr. Patel, Petitioner’s

Expert, the Standard of Care required of the Respondent after he

administered Marcaine to J.S. and heard her state that her right

leg had become numb, was to closely monitor the patient by

looking for the signs of a developing "high spi nal." Respondent

failed to meet the Standard of Care in treating J.S. when he

left her in the treatment room with only a licensed practical

nurse (LPN) with no specific training in resuscitation or

dealing with potential complications arising from the pro cedure.

22. Additionally, as established by the testimony of

Dr. Patel, Respondent failed to meet the Standard of Care when

he failed to call in a timely manner for emergency personnel to

transport J.S. to the hospital where she would have been better

monitored and treated for complications. Instead, he pursued

resucitative measures on J.S. for about six hours. A time

period which extended about four and one - half hours beyond the

maximum time period that Dr. Patel, Petitioner's expert, opined

was acce ptable.

23. An additional aggravating factor in this matter is

Respondent's prior disciplinary history with the State of Ohio

received in evidence pursuant to Rule 64B8 - 8.002, Florida

Administrative Code.

CONCLUSIONS OF LAW

24. The Division of Administ rative Hearings has

jurisdiction over the parties and the subject matter.

The parties received adequate notice of the administrative

hearing. Section 120.57(1), Florida Statutes.

25. 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 vs.

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).

26. Petitioner satisfied its burden of proof with regard

to Count o ne of the Administrative Complaint. The proof is

clear and convincing that Respondent violated the Standard of

Care with regard to the time that he permitted to elapse before

EMS personnel were called and transported J.S. to the hospital.

Additionally, R espondent violated this standard through his

absence from the treatment room after symptoms of a high spinal

were beginning to be manifested. Clear and convincing evidence

has both qualitative and quantitative requirements. The factual

testimony of Petit ioner's expert, and the records submitted in

the case satisfy both the qualitative and quantitative

requirements for clear and convincing evidence.

27. The evidence is not clear and convincing with regard

to Count two of the Administrative Complaint, alle ging violation

of the proscription against failure to keep adequate records

justifying the course of treatment. Respondent kept appropriate

records. Further, the parties do not dispute the propriety of

the procedure performed by Respondent on J.S. The c ourse of

treatment reflected in records of J.S., should not be confused

with the real issue at hand, i.e., whether Respondent violated

the Standard of Care by waiting an excessive length of time

before sending J.S. to the hospital.

28. Count three of th e Administrative Complaint accuses

Respondent of the violation of administering legend drugs in

inappropriate or excessive quantities. Credible evidence that

Respondent committed this violation does not rise to level of

the required standard of clear and convincing. Accordingly,

Respondent is not guilty of commission of this alleged offense.

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

Board of Medicine is empowered to revoke, suspend, or otherwise

discipline the license to practice medicine of any physician

found to have committed a violation of the offenses alleged in

this cause.

30. Rule 64B8 - 8.001 - 2, Florida Administrative Code (1999)

places the appropriate penalty for violating the standard of

care proscribed by Section 458.331(1)(t), Fl orida Statutes,

within a guideline range of t wo years probation to revocation, or

denial of licensure; and an administrative fine from $250 to

$5,000.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED:

That in accordance with Petitioner's disciplinary

guidelines, that a final order be entered finding Respondent

guilty of violating Section 458.331(1)(t), Florida Statutes;

suspending Respondent's license for one year to be re - instated

o nly upon completion of 20 hours of continuing medical education

above the minimum required for maintenance of licensure with the

area of study for such additional hours to be determined by the

Board of Medicine; and imposition of a fine of $5,000.

DONE A ND ENTERED this 8th day of August, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of August, 2002.

COPIES FURNISHED :

William W. Large, General Counsel

Department o f Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Shirley J. Whitsitt, Esquire

James W. Earl, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32308

Jon M. Pellett, Esquire

Barr, Murman, Tonell i, Slother & Sleet

201 East Kennedy Boulevard, Suite 1700

Tampa, Florida 33602

Tanya Williams, Executive Director

Board of Medicine

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

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 Reco mmended Order should be filed with the agency that

will issue the Final Order in this case.