02-003859PL Department Of Health, Board Of Osteopathic Medicine vs. William H. Weaver, D.O. Status: Closed Recommended Order on Friday, February 7, 2003.

Summary: Failure to order cardiac evaluation of patient with abnormal EKG and evidence of prior heart event is below standard of care and warrants discipline.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

OSTEOPATHIC MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 02 - 3859PL

)

WILLIAM H. WEAVER, D.O., )

)

Respondent. )

)

RECOMMENDED ORDER

On December 20, 2002, a formal administrative hearing in

this case was held by videoconference between Tallahassee and

Orlando, Florida, before William F. Quattlebaum, Administrative

Law Judge, Division of Administrative Hearings.

APPEAR ANCES

For Petitioner: Kim Kluck, Esquire

Department of Health

4052 Bald Cypress Way, Bin C65

Tallahassee, Florida 32399 - 3265

For Respondent: Matthew P. Bartolomei, Esquire

Hill, Adams, Hall & Schieffelin, P.A.

Post Office Box 1090

Winter Park, Florida 32790 - 1090

STATEMENT OF THE ISSUE

The issue in the case is whether the allegations of the

Administrative Complaint, filed by the Petitioner aga inst the

Respondent, are correct, and, if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated February 28, 2002, the

Department of Health (Petitioner) alleged that William H.

Weaver, D.O. (Respondent), violated S ection 459.015(1)(x),

Florida Statutes, in his treatment of a patient in

February 2000. The Respondent disputed the allegations and

requested a formal hearing. The Petitioner forwarded the

request to the Division of Administrative Hearings, which

schedul ed and conducted the proceeding.

At the hearing, the Petitioner presented the testimony of

one witness (by deposition). The Respondent testified on his

own behalf, presented the testimony of one witness, and had

Exhibits 1 through 4 admitted into eviden ce. Joint Exhibits 1

through 3 were also admitted into evidence.

A Transcript of the hearing was filed on January 16, 2003.

Both parties filed Proposed Recommended Orders that were

considered in the preparation of this Recommended Order.

In order to protect the right to privacy of the patient,

this Recommended Order does not identify the patient by name.

FINDINGS OF FACT

1. The Petitioner is the agency responsible for licensure

and regulation of osteopathic physicians practicing in the State

of F lorida.

2. At all times material to this case, the Respondent has

been a Florida licensed osteopathic physician, holding license

number OS 005726. The Respondent is board - certified in family

medicine and emergency medicine.

3. On February 23, 2000, the Respondent was working in the

emergency room at Health Central medical facility in Ocoee,

Florida.

4. On February 23, 2000, a patient, herein identified as

Patient D.S., arrived at the Health Central emergency room.

According to the triage notes, Patie nt D.S. presented with

"intermittent chest & upper back pain" occurring over a two - week

period. Patient D.S. had been brought to the emergency room by

a friend.

5. The triage nurse's notes indicate that he was

interviewed at about 2:05 p.m. The patien t's vital signs were

taken. As recorded in the triage nurse's notes, the patient's

pulse was slightly elevated at 110. His blood pressure was

139/96.

6. Patient D.S. presented at the emergency room with

several cardiac risk factors. He was a smoker a nd over 40 years

of age. The fact that he is a male is alleged as an additional

risk factor although the evidence fails to establish that gender

alone is a significant risk factor.

7. At about 2:28 p.m., the Respondent met Patient D.S. for

evaluation. T he Respondent noted the patient's chief complaint

to be "intermittent r[ight] upper back discomfort and chest

tightness" of two weeks' duration. The patient indicated that

the pain radiated across the upper back. There was no shortness

of breath, no naus ea or vomiting, and no diaphoresis noted. The

patient identified the pain as a three on a one - to - ten scale.

8. The Respondent observed that the patient was curt in

his responses to questions and did not appear interested in

remaining in the emergency ro om. The patient indicated that he

had no personal or family history of coronary artery disease,

hypertension or diabetes (additional coronary risk factors).

The patient admitted to smoking a pack of cigarettes daily. The

patient denied any prior cardiac event.

9. The Respondent performed a physical examination of the

patient. The patient did not exhibit any of the classical signs

of a heart attack, such as sharp lateral left chest pain,

substernal chest pressure or pain, pallor, sweating, nausea,

vom iting, severe indigestion, or loss of blood pressure.

10. Based on the triage protocol, a "12 lead" EKG was

ordered for Patient D.S. and was performed at about 2:52 p.m.

According to the EKG (also known as an ECG), Patient D.S.

exhibited normal sinus rhy thm, but the EKG was classified as

"abnormal" and displayed possible left atrial enlargement and an

anterolateral infarct of undetermined age.

11. The EKG measures different heart functions including

ischemia, infarction, enlargement, arrhythmias and

irre gularities in conduction patterns.

12. Patient D.S.'s EKG showed poor "R wave" progression,

which is indicative of prior myocardial injury.

13. Patient D.S.'s EKG exhibited the presence of "QS

complexes" from V1 to V6 with no "R wave" progression, whic h is

indicative of prior myocardial injury.

14. Patient D.S.'s EKG showed evidence of an anterolateral

infarct, indicating the existence of prior myocardial injury.

15. According to the EKG analysis, Patient D.S. had

experienced a cardiac injury at some time prior to his arrival

at the emergency room on February 23, 2000, or was experiencing

a cardiac injury during his visit to the emergency room.

16. The fact that the EKG exhibited evidence of prior

myocardial injury places Patient D.S. at higher - risk f or

subsequent cardiac injury.

17. The Respondent documented that he evaluated the triage

assessment and reviewed the EKG results.

18. The Respondent did not admit the patient to the

hospital for observation.

19. The Respondent did not consult with a ca rdiologist on

staff at the hospital.

20. The Respondent did not order cardiac enzyme testing

for the patient.

21. The patient told the Respondent that the patient had

an appointment on February 24, 2000, with his primary physician.

The Respondent discha rged the patient with a diagnosis of right

shoulder and back pain, concluding the symptoms were of a

musculoskeletal origin. The Respondent provided a copy of the

EKG to the patient and instructed him to give it to his primary

care physician on the next d ay.

22. By deposition, Dr. Steven M. Schwartz testified as a

medical expert on behalf of the Petitioner. At the hearing,

Todd M. Husty testified as a medical expert on behalf of the

Respondent. Based upon a review of the testimony, the testimony

of Dr. Schwartz is persuasive and is credited.

23. Based on the circumstances of this case and on

Dr. Schwartz testimony, the Respondent has failed to practice

osteopathic medicine with the level of care, skill, and

treatment recognized as being acceptable und er similar

conditions and circumstances.

24. The symptoms exhibited or reported by Patient D.S.

during his visit to the emergency room on February 23, 2000, are

consistent with ischemic heart disease which is the result of

insufficient blood circulation to the heart muscle tissue.

25. A reasonable and prudent physician under similar

circumstances would have considered Patient D.S. to be at high

risk for ischemic heart disease, and would have admitted the

patient to the hospital for further diagnostic testing and

evaluation including consultation with a staff cardiologist.

26. Patients experiencing cardiac infarction can present

with atypical symptoms almost as frequently as with classical

symptoms. Atypical presentations can include pain in areas

oth er than those identified as classical pain patterns. The

pain can be dull instead of sharp. The pain can be reproducible

on manipulation. Patient D.S. was experiencing atypical dull

and reproducible pain. The absence of classical symptoms does

not rule out the possibility of infarction or ischemia.

27. Symptoms of musculoskeletal chest pain are similar to

symptoms exhibited by a person who has experienced or is

experiencing a myocardial infarction. The standard of care

requires that potential myocardi al infarction be ruled out. A

reasonable and prudent physician would proceed to perform

appropriate tests to rule out cardiac cause of the symptoms

before concluding they were of musculoskeletal origin.

28. The day after leaving the emergency room, the patient

was evaluated by his primary care physician and was transported

from the physician's office to Florida Hospital for further

treatment.

29. On February 25, 2000, Patient D.S. underwent a left

heart catheterization and coronary arteriogram, which r evealed

90 percent stenosis of the left anterior, and atherosclerotic

plaquing of the right coronary artery and circumflex.

30. On February 29, 2000, Patient D.S. underwent a

percutaneous transluminal coronary angioplasty and stenting.

The patient's reco very from the incident and procedure was

satisfactory.

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

32. The Petitioner has the burden of proving by clear and

convincing evidence the allegations against the Respondent.

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987). In this case,

the burden has been met.

33. The Petitioner has charged the Respondent with a

violation of 459.015(1)(x), Florida Statutes, which provides as

follows:

459.015 Grounds for disciplinary action;

action by the board and department. --

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072(2):

* * *

(x) Gross or repeated malpractice or the

failure to practice osteopathic medicine

with that level of care, skill, and

treatment which is recognized by a

reasonably prudent similar osteopathic

physician as being acceptable under s imilar

conditions and circumstances. . . . As used

in this paragraph, "gross malpractice" or

"the failure to practice osteopathic

medicine with that level of care, skill, and

treatment which is recognized by a

reasonably prudent similar osteopathic

physic ian as being acceptable under similar

conditions and circumstances" shall not be

construed so as to require more than one

instance, event, or act. Nothing in this

paragraph shall be construed to require that

an osteopathic physician be incompetent to

prac tice osteopathic medicine in order to be

disciplined pursuant to this paragraph. A

recommended order by an administrative law

judge or a final order of the board finding

a violation under this paragraph shall

specify whether the licensee was found to

have committed "gross malpractice,"

"repeated malpractice," or "failure to

practice osteopathic medicine with that

level of care, skill, and treatment which is

recognized as being acceptable under similar

conditions and circumstances," or any

combination there of, and any publication by

the board shall so specify.

34. The evidence establishes that the Respondent's failure

to consider Patient D.S. to be at high risk for ischemic heart

disease, failure to admit the patient to the hospital for

further diagnostic testing and evaluation, and failure to

consult with a staff cardiologist, constitute failure to

practice osteopathic medicine with that level of care, skill,

and treatment which is recognized as being acceptable under

similar conditions and circumstances and is a violation of

Section 459.015(1)(x), Florida Statutes.

35. The fact that the patient denied any prior cardiac

injury while the EKG indicated a previous infarction is of

significance, suggesting that the patient's prior cardiac event

occurred asy mptomatically or without the classical symptoms of a

heart attack. Under the circumstances and in light of this

patient's risk, the standard of care requires more than

discharging a patient, EKG in hand, to see a primary care

physician on the following da y.

36. Rule 64B15 - 19.002, Florida Administrative Code,

establishes a range of penalties that may be imposed for

violation of the cited statute. There is no evidence that the

Respondent has been the subject of any prior disciplinary

proceeding. Under the version of the rule in effect at the time

of the violation, the recommended penalty in this case ranges

from a fine of up to $2,500 and reprimand to probation

conditioned on continuing education.

RECOMMENDATION

Based on the foregoing Findings of Fact an d Conclusions of

Law, it is

RECOMMENDED that the Department of Health enter a Final

Order finding that William H. Weaver, D.O., violated

Section 459.015(1)(x), Florida Statutes, and imposing a reprimand

and a fine of $2,500.00. It is further recommended that

William H. Weaver, D.O., be required to complete within six

months of the Final Order, a continuing medical education course

related to proper diagnosis and treatment of cardiac - related

presentations in an emergency room setting.

DONE AND ENTERED this 7th day of February, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 3239 9 - 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 7th day of February, 2003.

COPIES FURNISHED :

Matthew P. Bartolomei, Esquire

Hill, Adams, Hall & Schieffelin, P.A.

Post Office Box 1090

Winter Park, Florida 32790 - 1090

James W. Earl, Esquire

Department of Health

4052 Bald Cypress Way, Bin C65

Tallahassee, Florida 32399 - 3265

Kim Kluck, Esquire

Department of Health

4052 Bald Cypress Way, Bin C65

Ta llahassee, Florida 32399 - 3265

William H. Buckhalt, Executive Director

Board of Osteopathic Medicine

Department of Health

4052 Bald Cypress Way, Bin C06

Tallahassee, Florida 32399 - 1701

R. S. Power, Agency Clerk

Department of Health

4025 Bald Cypress Way , Bin A02

Tallahassee, Florida 32399 - 1701

William W. Large, General Counsel

Department of Health

4025 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptio ns within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.