02-002969PL
Department Of Health, Board Of Medicine vs.
Robert H. Fier, M.D.
Status: Closed
Recommended Order on Wednesday, December 18, 2002.
Recommended Order on Wednesday, December 18, 2002.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF HEALTH, )
12BOARD OF MEDICINE, )
16)
17Petitioner, )
19)
20vs. ) Case No. 02 - 2969PL
27)
28ROBERT H. FIER, )
32)
33Respondent. )
35______________________________)
36RECOMMENDED ORD ER
39Robert E. Meale, Administrative Law Judge of the Division
48of Administrative Hearings, conducted the final hearing in
56Tallahassee, Florida, on October 3, 2002.
62APPEARANCES
63For Petitioner: Bruce A. Campbell
68Assistant General Couns el
72Department of Health
754052 Bald Cypress Way, Bin C - 65
83Tallahassee, Florida 32399 - 3265
88For Respondent: Brian A. Newman
93Pennington, Moore, Wilkinson, Bell,
97& Dunbar, P. A.
101215 South Monroe Street, Suite 200
107Post Office Box 10095
111Tallahassee, Florida 32302 - 2095
116STATEMENT OF THE ISSUES
120The issues are wheth er Respondent deviated from the
129applicable standard of care in the practice of medicine by
139inserting the wrong intraocular lens during cataract surgery, in
148violation of Section 458.331(1)(t), Florida Statutes, or failed
156to maintain adequate medical records , in violation of Section
165458.331(1)(m), Florida Statutes, and, if so, what penalty should
174be imposed.
176PRELIMINARY STATEMENT
178By Administrative Complaint dated June 4, 2002, Petitioner
186alleged that Respondent is a licensed physician Board Certified
195in Opht halmology. The Administrative Complaint alleges that, on
204October 17, 2000, Respondent scheduled an 80 - year - old patient
216for phacoemulsification cataract surgery of the left eye with an
226intraocular lens implant at the Treasure Coast Center for
235surgery in St uart.
239Respondent allegedly placed a lens implant into the
247patient's eye that bore the wrong refractive power because he
257inserted a lens that had been intended for a different patient.
268The operative report allegedly contains standard form language
276that does not accurately describe the treatment received by the
286patient.
287The Administrative Complaint alleges that, on October 26,
2952000, Respondent performed additional surgery on the patient to
304replace the incorrect lens, which had a refractive power of
31420.5, with the correct lens, which had a refractive power of
32521.5. The Administrative Complaint alleges that, prior to the
334first surgery and after both surgeries, the patient's best
343corrected visual acuity in the left eye was 20/30.
352Count One of the Administr ative Complaint alleges that
361Respondent deviated from the applicable standard of care, in
370violation of Section 458.331(1)(t), Florida Statutes, by
377performing cataract surgery on an 80 - year - old patient with
389corrected vision of 20/30, inserting the wrong len s into the
400patient's eye, or performing the second surgery to provide
409minimal visual benefit.
412Count Two of the Administrative Complaint alleges that
420Respondent failed to maintain medical records justifying the
428course of treatment, in violation of Section 458.331(1)(m),
436Florida Statutes, by preparing an operative report on
444October 17, 2000, that did not accurately describe the treatment
454rendered and failing to maintain records that justified the
463second surgery, given the minimal visual benefit derived from
472the second surgery.
475Based on these alleged violations, the Administrative
482Complaint seeks the revocation of Respondent's license, or such
491lesser penalty as the Board of Medicine deems appropriate, and
501the costs of the investigation and prosecution.
508Respo ndent timely requested a formal hearing.
515At the hearing, Petitioner called no witnesses and offered
524into evidence two exhibits: Petitioner Exhibits 1 - 2.
533Respondent called three witnesses and offered into evidence 17
542exhibits: Respondent Exhibits 1 - 3 an d 6 - 19. The parties
555offered three joint exhibits: Joint Exhibits 1 - 3. All exhibits
566were admitted except Respondent Exhibits 11 and 19, which were
576proffered.
577The court reporter filed the transcript on November 4,
5862002. The parties filed proposed recomm ended orders on
595November 14, 2002. In its proposed recommended order,
603Petitioner concedes that it did not prove that Respondent
612deviated from the applicable standard of care in performing the
622initial or corrective surgery, so the issues are now whether he
633deviated from the applicable standard of care in inserting the
643wrong lens and whether he failed to maintain adequate medical
653records.
654FINDINGS OF FACT
6571. At all material times, Respondent has been a licensed
667physician, holding license number ME 0030598. Respondent
674graduated from medical school in 1976 and completed a three - year
686residency in ophthalmology in 1980.
6912. Board - certified in ophthalmology since 1981, Respondent
700is the medical director of the Treasure Coast Center for Surgery
711in Stuart (Surge ry Center). The Surgery Center is an ambulatory
722surgery center licensed under Chapter 395, Florida Statutes.
7303. Since 1980, Respondent has performed over 20,000
739surgeries, including over 10,000 cataract surgeries. In that
748time, he has never previously misidentified a patient, operated
757on the wrong site, or inserted the wrong lens.
7664. This case involves a wrong lens that Respondent
775inserted into an 80 - year - old patient on October 17, 2000. A
789local optometrist had referred the patient to Respondent for
798evaluation of cataracts in both eyes. Respondent performed
806successful cataract surgery on the patient's right eye on
815August 22, 2000.
8185. A cataract is a partial or complete opacification, or
828clouding, of a natural lens or its capsule. Typically
837associat ed with aging, the cataract is a major cause of a slow
850loss of vision, making it more difficult for the patient to read
862or drive, especially at night with the glare of lights.
8726. Twenty years ago, conventional cataract surgery
879comprised an intracapsular cataract extraction with the lens
887implant placed in the front of the eye. In the last 20 years,
900the predominant mode of cataract surgery comprises an
908extracapsular cataract surgery or phacoemulsification with the
915lens implant placed behind the iris of th e eye. In the
927phacoemulsification process, the surgeon, using a smaller
934incision than that used in the older procedure, dissolves the
944cataract - involved natural lens using ultrasound and removes the
954cataract in smaller pieces than the single - piece removal
964characteristic of the intracapsular extraction process.
9707. The patient was scheduled for phacoemulsification of
978the cataract - involved lens in her left eye at the Surgery Center
991as the first patient of the day on October 17, 2000. Respondent
1003handled her c ase as he handles all of the other cases. Prior to
1017the surgery, Respondent reviews the patient's office chart and
1026brings it, together with the office charts of the other patients
1037scheduled for surgery that day, from his office to the Surgery
1048Center.
10498. At the Surgery Center, Respondent delivers the office
1058charts to circulating nurses, who remove each chart, read it to
1069determine the lens to be implanted, find the lens specified in
1080the chart for implantation, and insert the packaged lens into
1090the chart. A nurse then stacks the office charts in a stand in
1103the order of the patients' surgeries scheduled for the day.
11139. From the patient's perspective, she is greeted by a
1123receptionist upon arrival. The receptionist pulls the already -
1132prepared materials, inclu ding an identification bracelet or
1140armband, and has the patient sign the necessary paperwork.
114910. At this point, an admission nurse takes the patient to
1160the preoperative area where the patient lies down on a gurney.
1171The nurse identifies the patient and c onfirms the eye to be
1183operated on and the procedure to be performed. After verifying
1193this information, the nurse places the identification bracelet
1201on the patient's wrist. In cases such as this, in which an
1213anaesthesiologist administers the anaesthesia, the
1218anaesthesiologist meets with the patient to confirm the identity
1227of the patient, the eye to be operated on, and the procedure to
1240be performed.
124211. The Surgery Center's policy requires: "the attending
1250physician and/or anesthesiologist, along with th e responsible
1258nurse, will review the patient's medical record, the armband and
1268the Surgery Schedule to confirm the correct operative site. The
1278operative site will also be confirmed by the patient or
1288parent/guardian." The cited language, as well as the
1296su rrounding context, reveals a policy to ensure that the correct
1307site -- here, left eye -- is the subject of the actual surgical
1320procedure; nothing in the policy explicitly requires anyone to
1329match the correct lens with the patient.
133612. After completion of th e preoperative procedure, the
1345circulating nurse takes the patient from pre - op. Among the
1356nurse's other duties is to check the patient's bracelet against
1366the office chart and to ask the patient if she is the person
1379named on the office chart and bracelet. Accompanying the
1388patient into the operating room are the office chart and Surgery
1399Center chart. Once in the operating room, the circulating nurse
1409places the office chart on a side table used by the scrub nurse
1422and the Surgery Center chart with the anaesth esia equipment.
1432ansferred into the operating room, the patient is
1440scrubbed by a scrub nurse, who drapes the patient from just
1451below her knees to above her head with a gown that opens only at
1465the site of the eye to be operated on. The purpose of the gown
1479is to maintain a sterile field, so no one can lift the gown in
1493the operating room, such as to identify the patient by face or
1505bracelet with the name on the chart, without exposing the
1515patient to a risk of infection.
152114. When Respondent enters the op erating room, he is
1531already scrubbed and wearing gloves. A stand holds the
1540patient's office chart with the packaged lens implant at the
1550side table. Respondent checks the power of the lens, as
1560disclosed on the package, against the power specified on the
1570o ffice chart. In this case, the two powers matched, as the
1582office chart and the lens implant were for another patient. To
1593maintain sterility, Respondent cannot touch a chart while he is
1603in the operating room; if the necessity arises, a nurse may
1614touch the chart.
161715. Before proceeding with surgery, Respondent reads the
1625name of the patient on the office chart. Respondent does not
1636verify that the names on the bracelet and either of the charts
1648are the same. Nor does Respondent confirm with the circulating
1658nurse that she has done so. To check the identity of the
1670patient, Respondent says, "Good morning, Ms. _____. I'd like
1679you to put your chin up for me."
168716. However, patients often have fallen asleep from the
1696three preoperative sedatives that they have already received.
1704Respondent conceded that the patient in this case may not have
1715been alert when he addressed her by name. For whatever reason --
1727reduced consciousness, unconsciousness, nervousness, or
1732inability of the patient to hear Respondent or Respon dent (or
1743others) to hear the patient -- the patient in this case did not
1756effectively communicate to Respondent that she was not the
1765patient whose name he stated.
177017. Respondent proceeded with the surgery and implanted
1778the wrong lens into the patient's lef t eye. Respondent had
1789specified a lens with a 21.5 diopter refractive power and
1799implanted a lens with a 20.5 diopter refractive power. The
1809circulating nurse discovered the error when she went to get the
1820next patient and found the office chart of the pati ent on whom
1833Respondent had just completed surgery.
183818. The next day, when the patient visited Respondent at
1848his office for a routine post - operative examination, Respondent
1858informed her that he had placed the wrong lens in her eye and
1871recommended that he recheck her vision in a few days and then
1883decide whether to perform a corrective procedure.
189019. Three days after the initial surgery, Respondent found
1899an increased degree of anisometropia, which is the difference in
1909refraction between the two eyes. At this time, the patient
1919complained to Respondent about imbalance. Respondent advised
1926corrective surgery, and, on October 26, Respondent performed
1934surgery to replace the implanted lens with another lens.
1943Although the initial surgery was sutureless, the co rrective
1952surgery required sutures. The corrective surgery was generally
1960successful, although two and one - half months later, the patient
1971was complaining that her left eye was sore to the touch -- a
1984complaint that she had not made following the initial surger y to
1996the left eye.
199920. Petitioner asserts that Respondent's medical records
2006are deficient in two respects: inaccurately describing the
2014treatment and failing to justify the corrective surgery.
202221. Respondent dictates his operative reports prior to
2030surger y, even though they bear the date of the surgery -- here,
2043October 17, 2000. To accommodate contingencies, Respondent
2050dictates three conditional notes, one of which itself contains
2059two alternatives. As found in the patient's operative report,
2068these conditio nal notes state:
2073The corneoscleral wound was enlarged, if
2079necessary.
2080* * *
2083If necessary, an interrupted suture was
2089placed for pre - existing against - the - rule
2099astigmatism or to help maintain the water -
2107tightness of the wound. If a suture was
2115placed, the wound was retested to be water -
2124tight.
212522. Although Respondent's pre - dictated operative notes for
2134the patient are detailed, they omit a salient element of her
2145surgery -- that Respondent inserted a lens of the wrong power.
2156Responden t did not try to conceal this fact. To the contrary,
2168as soon as the nurse informed him of her error, he directed her
2181to attach the sticky label on the lens package, which records
2192the power of the lens, to the patient's chart. He also directed
2204her to prep are an incident report, which prompted Petitioner's
2214investigation.
221523. The expert testimony in this case was conflicting.
2224Respondent's expert witness was originally contacted by
2231Petitioner and asked for an opinion on the standard - of - care and
2245medical - reco rds issues described above. The witness opined that
2256Respondent met the applicable standard of care and the medical
2266records justified the course of treatment. Respondent then
2274retained this physician as his expert witness.
228124. Respondent's expert witness opined that an
2288ophthalmologic surgeon necessarily must rely to a "large extent"
2297on staff for a "certain amount of identification" before the
2307patient is transferred into the operating room. Respondent's
2315expert witness did not explain in detail the qualific ations
2325inherent in these statements. Finding an error by the Surgery
2335Center in the insertion of the wrong lens, Respondent's expert
2345witness admitted that Respondent had some control over the
2354circulating nurse, but stated that the nurse administrator
2362basic ally directs the nurses. Expressing no problem with the
2372conditional notes, Respondent's expert witness testified that it
2380is not unusual for a surgeon to predictate an operative report
2391and then change it if something unusual happens.
239925. Petitioner retain ed another expert witness to replace
2408the expert witness who became Respondent's witness.
2415Petitioner's expert witness opined that Respondent failed to
2423meet the applicable standard of care and the medical records did
2434not justify the course of treatment. Pe titioner's expert
2443witness opined that it was never within the applicable standard
2453of care to insert the wrong lens and admitted that he was
2465unaware of the procedures of the Surgery Center and Respondent
2475to avoid this occurrence. Petitioner's expert witnes s explained
2484that the surgeon is the captain of the ship and ultimately bears
2496the responsibility for the insertion of the wrong lens.
250526. Petitioner's expert witness also opined that all pre -
2515dictated operative notes were not "the standard of care" and
2525li kewise criticized the conditional notes. Petitioner's expert
2533witness admitted that nothing included in or omitted from the
2543operative notes would adversely affect the future management of
2552the patient's medical care.
255627. Respondent's proposed recommended order identifies
2562various deficiencies in the testimony of Petitioner's expert
2570witness, although Respondent's assertion that the expert relied
2578on a not - yet - effective strict - liability statute is not accurate.
2592Most of these deficiencies pertain to the earli er allegations
2602that Respondent failed to meet the applicable standard of care
2612in performing cataract surgery on an 80 - year - old patient and in
2626performing the corrective surgery.
263028. Citing the recent case of Gross v. Department of
2640Health , 819 So. 2d 997 (F la. 5th DCA 2002)(Orfinger, J.,
2651concurring), Petitioner's proposed recommended order invites the
2658Administrative Law Judge to be guided by common sense in
2668assessing the standard - of - care issue. This invitation may arise
2680from a well - placed concern with the m eans by which Petitioner's
2693expert reached his conclusion that Respondent deviated from the
2702applicable standard of care. Petitioner's expert witness has
2710opined that the insertion of the wrong lens violates the
2720applicable standard of care, without regard to the safeguards or
2730precautions that a physician may employ to avoid this mishap.
2740In finding a deviation from the applicable standard of care, the
2751Administrative Law Judge relies on inferences and logic not
2760explicitly identified by Petitioner's expert witn ess.
276729. In addressing the standard - of - care issue, Respondent's
2778expert witness adopted the proper approach, which features a
2787close analysis of the facts to determine the reasonableness of
2797the surgeon's acts and omissions. Under that approach, however,
2806th e record establishes that Respondent failed to take all
2816reasonable precautions necessary to prevent this mistake.
282330. Although the likelihood of the insertion of the wrong
2833lens seems low, based on Respondent's experience, the burden of
2843additional, effecti ve safeguards would be minor. Both parties
2852focused on the location of the bracelet relative to the length
2863of the protective gown. However, an anklet would be in plain
2874view in the operating room because the gown would not extend
2885that far below the patient 's knees. Even if the patient
2896identification remains on a wrist bracelet, the surgeon himself
2905could check the patient's name on the bracelet with the name on
2917the office chart just prior to the surgeon and patient entering
2928the operating room. Either pract ice would add a few seconds to
2940the overall process and would prevent this type of error.
295031. On the other hand, the categoric rejection of
2959Respondent's records by Petitioner's expert witness is correct.
2967The date of the operative record is incorrect; it was not
2978dictated on October 17, 2000, but on an earlier date. The three
2990conditions and one alternative present a confused operative
2998history. The operative record fails to indicate if there was a
3009corneoscleral wound; if there was an interrupted suture; i f so,
3020if the suture was for a pre - existing astigmatism or for wound
3033protection; and if there was a suture placed at all. With these
3045conditions and alternative, the operative report fails to
3053memorialize accurately material elements of the surgery.
306032. Add itionally, the operative report omits an
3068indisputably material element of the surgery -- the insertion of
3078the wrong lens. Respondent recorded this fact in an office note
3089a few days later, but never amended his predictated operative
3099report to reflect this im portant fact.
310633. Lastly, the justification for the corrective surgery
3114ultimately was the patient's complaint of imbalance, not the
3123difference in refractive power between the lens implanted and
3132the lens specified. Respondent nowhere recorded any such
3140com plaint in any records.
314534. Based on the foregoing, Petitioner has proved by clear
3155and convincing evidence that Respondent deviated from the
3163applicable standard of care in inserting the wrong lens and
3173failed to maintain medical records justifying the cours e of
3183treatment with respect to the deficiencies noted in the
3192operative record and post - operative records preceding the
3201corrective surgery.
3203CONCLUSIONS OF LAW
320635. The Division of Administrative Hearings has
3213jurisdiction over the subject matter. Section 12 0.57(1),
3221Florida Statutes. (All references to Sections are to Florida
3230Statutes. All references to Rules are to the Florida
3239Administrative Code.)
324136. Section 458.331(1)(t) requires that a physician
"3248practice medicine with that level of care, skill, and t reatment
3259which is recognized by a reasonably prudent similar physician as
3269being acceptable under similar conditions and circumstances."
3276This recommended order refers to this statutory standard as the
"3286applicable standard of care."
329037. Section 458.331(1)( m) requires that a physician keep
3299medical records "that justify the course of treatment of the
3309patient, including but not limited to patient histories;
3317examination results; test results; records of drugs prescribed,
3325dispenses or administered; and reports o f consultations and
3334hospitalizations."
333538. Petitioner must prove the material allegations by
3343clear and convincing evidence. Department of Banking and
3351Finance v. Osborne Stern and Company, Inc. , 670 So. 2d 932 (Fla.
33631996) and Ferris v. Turlington , 510 So . 2d 292 (Fla. 1987).
337539. As contended by Respondent, the determination of
3383whether a physician deviated from the applicable standard of
3392care requires consideration of the factual circumstances of each
3401case. As recently held in Gross v. Department of Heal th , 819
3413So. 2d 997 (Fla. 5th DCA 2002), the determination of whether a
3425physician has violated the applicable standard of care is a fact
3436question for the Administrative Law Judge.
344240. Although adopting the finding of a violation of the
3452applicable standar d of care, as contended by Petitioner's expert
3462witness, this Recommended Order rejects the reliance by
3470Petitioner's expert upon a per se rule of strict liability.
3480This reliance invites judicial correction under the authority of
3489McDonald v. Department of P rofessional Regulation , 582 So. 2d
3499660 (Fla. 1st DCA 1991), which overturned an agency's invocation
3509of a presumption of negligence, so as effectively to shift the
3520burden of proof to the licensee.
352641. This Recommended Order also disclaims reliance upon
3534the captain - of - the - ship reasoning used by Petitioner's witness.
3547Even if not violative of the statutory and judicial authority
3557cited in the preceding paragraph, the captain - of - the - ship cases
3571emphasize analyses of master - servant relationships. See, e.g. ,
3580Dohr v. Smith , 104 So. 2d 29 (Fla. 1959)(anaesthecist not
3590employee of surgeon); Vargas v. Dulzaides , 520 So. 2d 306 (Fla.
36013d DCA 1988)(per curiam)(surgeon responsible for negligence of
3609uncertified perfusionist who allowed air into heart - lung
3618machine); Fortson v. McNamara , 508 So. 2d 35 (Fla. 2d DCA
36291987)(hospital nurse anaesthecist not employee of surgeon);
3636Hudmon v. Martin , 315 So. 2d 516 (Fla. 1st DCA 1975)(hospital
3647scrub nurse negligently filling syringe with improper solution
3655is employee of surgeon, not ho spital); and Buzan v. Mercy
3666Hospital, Inc. , 203 So. 2d 11 (Fla. 3d DCA 1967)(hospital nurse
3677performing ministerial duty not involving professional skill --
3685counting surgical sponges -- is employee of hospital, not
3694surgeon). These cases are unhelpful because t hey tend, in their
3705analysis of employment arrangements, to be searching for bases
3714for imposing strict liability against physicians under a
3722respondeat superior theory. These cases do not analyze the
3731statutorily mandated criterion of reasonableness that is
3738inherent in determining the applicable standard of care and
3747whether a physician has violated this standard of care.
375642. Relying on the Gross concurring opinion and possibly
3765concerned with the means by which its expert found a violation
3776of the applicable standard of care, Petitioner invites the
3785Administrative Law Judge to use common sense in finding a
3795violation of the applicable standard of care. The invitation to
3805use common sense raises the question as to when a factfinder may
3817find a violation of the app licable standard of care without any
3829expert evidence. See, e.g. , Dohr v. Smith , 104 So. 2d 29, 32
3841(Fla. 1959)(where patient lost teeth during intraoperative
3848administration of anaesthesia, "jury could have decided from
3856common knowledge and experience, rega rdless of expert testimony,
3865that the patient needlessly suffered from a condition the
3874anesthecist sought to prevent"); Atkins v. Humes , 110 So. 2d
3885663, 665 (Fla. 1959)(where physician so negligently treated a
3894fracture as to cause a contracture, expert evid ence not required
"3905in cases where want of skill or lack of care on the part of the
3920physician or surgeon is so obvious as to be within the
3931understanding of laymen and to necessitate only common knowledge
3940and experience to judge it"). The latitude extended factfinders
3950in finding deviations from the applicable standard of care,
3959without any expert evidence, likely means that a factfinder may
3969subscribe to the ultimate opinion of an expert witness, even
3979though for reasons not explicitly advanced by the expert
3988wi tness.
399043. In its proposed recommended order, Respondent has
3998relied on the Gross decision in which the court sustained
4008factfinding that declined to find a violation of the applicable
4018standard of care by a physician who did not watch the loading of
4031dye i nto an injector and thus failed to see that the technician
4044had not performed this task, so the injector injected air into
4055the patient, who died as a result of this mistake. However, the
4067Gross facts are distinguishable from the present case.
407544. In the pr esent case, the burden imposed upon
4085Respondent is to take reasonable steps, not onerous, to ensure
4095that the chart and attached lens belong to the semi - conscious
4107patient lying on the gurney awaiting surgery. In Gross , the
4117burden imposed upon the physician was greater, as it required
4127interaction with equipment and a technician in preparation for a
4137surgical procedure using the equipment.
414245. Separated far enough from the operating room -- such as
4153the faulty periodic maintenance of an oil seal on the dye -
4165inje ction equipment, misfilling of an oxygen tank with nitrogen,
4175mislabeling of a lens power by the manufacturer, or
4184incorporation of invisible contaminants into the lens by the
4193manufacturer -- the ensuing disaster or mishap may not constitute
4203a violation of the applicable standard of care by the physician,
4214who may not reasonably be able to supervise all of these tasks,
4226even though the failure to complete any of them means a poor or
4239disastrous outcome in surgery. Increasing dependence on
4246complicated and elaborat e diagnostic and therapeutic equipment
4254and medical supplies, as well as increasing reliance on
4263specialists to manufacture, service, and operate these items,
4271may attenuate the liability of the surgeon, but not in this
4282case.
428346. Here, a surgeon failed to incorporate sufficient and
4292relatively easy safeguards to ensure that the chart and attached
4302lens matched the patient lying in front of him. The
4312identification of the patient with her chart is more fundamental
4322than the supervision of technicians performin g various tasks on
4332equipment to be used in surgery. Respondent's failure to
4341identify the patient with her chart violated the applicable
4350standard of care because Respondent himself could have easily
4359ensured that the patient matched the chart.
436647. The is sue is not as close concerning the medical
4377records. The operative record does not accurately describe the
4386surgery due to the omission of the insertion of the wrong lens
4398and the reliance on three contingencies and one alternative.
4407The operative record thu s fails to justify the ensuing course of
4419treatment of the patient. No record documents the patient's
4428complaint about balance after the first surgery. The records
4437thus fail to justify the ensuing course of treatment of the
4448patient. Relying only on the op erative record and the absence
4459of any mention of a problem with balance, an informed reader
4470would have no idea why Respondent undertook the corrective
4479surgery. The contrary opinion of Respondent's expert on these
4488records is puzzling and entitled to less d eference than that of
4500Petitioner's expert, notwithstanding his description of the
4507problem with the records in terms of the "standard of care."
4518Regardless of the label, Respondent's medical records are
4526inadequate as a description of the first surgery and a
4536justification for the corrective surgery.
454148. For a violation of the applicable standard of care,
4551Rule 59R - 8.001 provides that the Board of Medicine may impose
4563discipline ranging from revocation to two years' probation and
4572an administrative fine from $10 00 to $10,000. For a violation
4584pertaining to medical records, Rule 59R - 8.001 provides that the
4595Board of Medicine may impose discipline ranging from two years'
4605suspension followed by probation to a reprimand and an
4614administrative fine of $1000 to $10,000.
462149. In its proposed recommended order, Petitioner seeks a
4630fine of $5500 plus costs of the investigation and prosecution,
4640pursuant to Section 456.072(4). Petitioner notes that each
4648incident was a single occurrence, Respondent had practiced 25
4657years withou t prior discipline, and the exposure to the patient
4668of injury was slight. The only aggravating factor cited by
4678Petitioner was the element of pecuniary gain in the collection
4688of a fee, even though discounted, for the corrective surgery.
469850. Petitioner mis construes two of the factors. First,
4707the collection of any fee, even a discounted one, for the
4718corrective surgery, although perhaps reflective of poor judgment
4726in retrospect, did not establish that Respondent's motive in
4735performing the corrective surgery was pecuniary. The
4742misidentification of the patient and poor recordkeeping are
4750consistent with a surgery center in which the medical
4759director/surgeon is at least as ambulatory as the patients, but
4769the record does not establish excessive haste on Responden t's
4779part, so pecuniary gain is not available as an aggravating
4789factor on this basis either.
479451. Second, the exposure to injury of an 80 - year - old
4807patient to another round of anaesthesia and surgery was not
4817slight. Although the record does not depict this surgery as
4827painful, the record does reveal that the patient emerged from
4837the second surgery with a sore left eye.
484552. The long absence of a disciplinary history offsets the
4855pain and discomfort caused the patient who was subjected to the
4866corrective surger y due to Respondent's failure to take
4875reasonable measures to ensure that the correct chart had
4884accompanied the patient into the operating room. On balance,
4893the violation of the applicable standard of care was slighter
4903than the violation concerning the med ical records, which were
4913seriously deficient for several reasons. Appropriate penalties
4920would thus be $2500 for the violation of the applicable standard
4931of care and $7500 for the violation concerning the medical
4941records.
494253. The Administrative Law Judge will retain jurisdiction
4950to enter additional findings on costs if the parties are unable
4961to reach agreement on this item.
4967RECOMMENDATION
4968It is
4970RECOMMENDED that the Board of Medicine enter a final order
4980finding Respondent guilty of violating Section 458. 331(1)(t),
4988Florida Statutes, and Section 458.331(1)(m), Florida Statutes,
4995imposing an administrative fine of $10,000, and remanding the
5005case to the Division of Administrative Hearings for findings
5014concerning costs, pursuant to Section 456.072(4), Florida
5021S tatutes, if the parties cannot agree as to an amount.
5032DONE AND ENTERED this 18th day of December, 2002, in
5042Tallahassee, Leon County, Florida.
5046___________________________________
5047ROBERT E. MEALE
5050Administrative Law Judge
5053Division of Administrative Hearings
5057The DeSoto Building
50601230 Apalachee Parkway
5063Tallahassee, Florida 32 399 - 3060
5069(850) 488 - 9675 SUNCOM 278 - 9675
5077Fax Filing (850) 921 - 6847
5083www.doah.state.fl.us
5084Filed with the Clerk of the
5090Div ision of Administrative Hearings
5095this 18th day of December, 2002.
5101COPIES FURNISHED:
5103Larry McPherson, Executive Director
5107Board of Medicine
5110Department of Health
51134052 Bald Cypress Way
5117Tallahassee, Florida 32399 - 1701
5122R. S. Powe r, Agency Clerk
5128Department of Health
51314052 Bald Cypress Way, Bin A02
5137Tallahassee, Florida 32399 - 1701
5142Bruce A. Campbell
5145Assistant General Counsel
5148Department of Health
51514052 Bald Cypress Way, Bin C - 65
5159Tallahassee, Florida 32399 - 3265
5164Brian A. Newman
5167Penning ton, Moore, Wilkinson, Bell,
5172& Dunbar, P. A.
5176215 South Monroe Street, Suite 200
5182Post Office Box 10095
5186Tallahassee, Florida 32302 - 2095
5191NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
5197All parties have the right to submit written exceptions within
520715 days from the date of this recommended order. Any exceptions
5218to this recommended order must be filed with the agency that
5229will issue the final order in this case.
- Date
- Proceedings
- PDF:
- Date: 01/21/2003
- Proceedings: Order Denying Respondent`s Request to Schedule Hearing to Determine Cose to be Imposed Pursuant to Section 245.072(4) issued.
- PDF:
- Date: 01/16/2003
- Proceedings: Petitioner`s Objection to Scheduling DOAH Hearing on Costs Under Section 456.072(4) (filed via facsimile).
- PDF:
- Date: 01/15/2003
- Proceedings: Notice of Service of Respondent`s First Set of Interrogatories to Petitioner filed.
- PDF:
- Date: 01/15/2003
- Proceedings: Respondent`s Request to Produce and a Request for Public Records filed.
- PDF:
- Date: 01/15/2003
- Proceedings: Respondent`s Request to Schedule Hearing to Determine Cost to Be Imposed Pursuant to Section 456.072(4) filed.
- PDF:
- Date: 12/18/2002
- Proceedings: Recommended Order issued (hearing held October 3, 2002) CASE CLOSED.
- PDF:
- Date: 12/18/2002
- Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
- Date: 11/04/2002
- Proceedings: Transcript filed.
- Date: 10/03/2002
- Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
- PDF:
- Date: 09/17/2002
- Proceedings: Notice of Taking Deposition Duces Tecum, L. Monroe (filed via facsimile).
- PDF:
- Date: 09/10/2002
- Proceedings: Notice of Taking Deposition Duces Tecum, L. Monroe (filed via facsimile).
- PDF:
- Date: 09/10/2002
- Proceedings: Amended Notice of Taking Deposition Duces Tecum, P. Kennedy, A. Stevens (filed via facsimile).
- PDF:
- Date: 09/09/2002
- Proceedings: Amended Notice of Hearing issued. (hearing set for October 3, 2002; 9:30 a.m.; Tallahassee, FL, amended as to venue).
- PDF:
- Date: 09/05/2002
- Proceedings: Amended Notice of Taking Deposition Duces Tecum, P. Kennedy (filed via facsimile).
- PDF:
- Date: 09/05/2002
- Proceedings: Notice of Taking Deposition Duces Tecum, P. Kennedy (filed via facsimile).
- PDF:
- Date: 09/05/2002
- Proceedings: Respondent`s Notice of Serving Answers to Petitioner`s First Set of Interrogatories to Respondent filed.
- PDF:
- Date: 09/04/2002
- Proceedings: Respondent`s Response to Petitioner`s First Request for Production of Documents filed.
- PDF:
- Date: 09/04/2002
- Proceedings: Notice of Taking Deposition Duces Tecum, A. Stevens, R. Fier (filed via facsimile).
- PDF:
- Date: 08/26/2002
- Proceedings: Petitioner`s Response to Respondent`s Request for Production filed.
- PDF:
- Date: 08/26/2002
- Proceedings: Notice of Service of Petitioner`s Answers to Interrogatories filed.
- PDF:
- Date: 08/12/2002
- Proceedings: Notice of Hearing issued (hearing set for October 3, 2002; 9:30 a.m.; Stuart, FL).
- PDF:
- Date: 07/31/2002
- Proceedings: Notice of Service of Petitioner`s First Set of Interrogatories (filed via facsimile).
Case Information
- Judge:
- ROBERT E. MEALE
- Date Filed:
- 07/26/2002
- Date Assignment:
- 10/03/2002
- Last Docket Entry:
- 03/13/2003
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO
- Suffix:
- PL
Counsels
-
Bruce Campbell, Esquire
Address of Record -
William E. Whitney, Esquire
Address of Record