02-002969PL Department Of Health, Board Of Medicine vs. Robert H. Fier, M.D.
 Status: Closed
Recommended Order on Wednesday, December 18, 2002.


View Dockets  
Summary: $10,000 fine for insertion of wrong intraocular lens, pre-dictated operative notes with three conditional comments, and omission of patient complaint justifying corrective surgery.

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.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 03/13/2003
Proceedings: Final Order filed.
PDF:
Date: 03/11/2003
Proceedings: Agency Final Order
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: Respondent`s Motion for Official Recognition filed.
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 First Request for Admissions 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
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.
PDF:
Date: 11/14/2002
Proceedings: Respondent`s Proposed Recommended Order (filed via facsimile).
PDF:
Date: 11/14/2002
Proceedings: Petitioner`s Proposed Recommended Order filed.
Date: 11/04/2002
Proceedings: Transcript filed.
PDF:
Date: 11/04/2002
Proceedings: Notice of Filing Transcript sent out.
Date: 10/03/2002
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 09/23/2002
Proceedings: Notice of Filing (filed by Petitioner via facsimile).
PDF:
Date: 09/20/2002
Proceedings: Joint Pre-hearing Stipulation filed.
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: 09/10/2002
Proceedings: Notice of Taking Deposition, R. Parks filed.
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: 09/09/2002
Proceedings: Order Granting Motion for Change of Venue issued.
PDF:
Date: 09/06/2002
Proceedings: Notice of Taking Deposition Duces Tecum, L. Monroe filed.
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: Respondent`s Response to Request for Admissions 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: 08/23/2002
Proceedings: Notice of Appearance (filed by Respondent).
PDF:
Date: 08/23/2002
Proceedings: Motion for Change of Venue filed Respondent.
PDF:
Date: 08/12/2002
Proceedings: Order of Pre-hearing Instructions issued.
PDF:
Date: 08/12/2002
Proceedings: Notice of Hearing issued (hearing set for October 3, 2002; 9:30 a.m.; Stuart, FL).
PDF:
Date: 08/02/2002
Proceedings: Response to Initial Order (filed by Petitioner via facsimile).
PDF:
Date: 07/31/2002
Proceedings: Notice of Service of Petitioner`s First Set of Interrogatories (filed via facsimile).
PDF:
Date: 07/29/2002
Proceedings: Initial Order issued.
PDF:
Date: 07/26/2002
Proceedings: Administrative Complaint (filed via facsimile).
PDF:
Date: 07/23/2002
Proceedings: Petition for Hearing Involving Disputed Issues of Material Fact (filed via facsimile).
PDF:
Date: 07/23/2002
Proceedings: Agency referral (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

Related Florida Statute(s) (2):