02-004429PL Department Of Health, Board Of Medicine vs. Mohamed Ibrahim Abdel-Aziz, M.D. Status: Closed Recommended Order on Monday, June 2, 2003.

Summary: Doctor violated Section 458.331(1), Florida Statutes, by failing to review fetal heart rate monitor readings.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 02 - 4429PL

)

MOHAMED IBRAHIM ABDEL - AZIZ, )

M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on January 28 and 29, 2003, in Tampa, Florida, before Susan B.

Kirkland, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitio ner: James W. Earl, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Jon M. Pellet, Esquire

Barr, Murman, Tonelli, Slother & Sleet

201 East Kennedy Boulevard, Suite 1700

Tampa, Florida 33602

STATEMENT OF THE ISSUES

Whether Respondent violated Subsections 458.331(1)(t) and

458.331(1)(m), Florida Statutes, and, if so, what d iscipline

should be imposed.

PRELIMINARY STATEMENT

On August 28, 2002, the Petitioner, Department of Health

(Department), filed an Administrative Complaint against

Respondent, Mohamed I. Abdel - Aziz, M.D. (Dr. Abdel - Aziz),

alleging that Dr. Abdel - Aziz viola ted Subsections 458.331(1)(m)

and 458.331(1)(t), Florida Statutes. Dr. Abdel - Aziz filed a

request for a formal hearing, and the case was forwarded to the

Division of Administrative Hearings on November 15, 2002, for

assignment of an Administrative Law Jud ge.

The parties filed a Joint Prehearing Stipulation on

January 21, 2003, and stipulated to certain facts in Section E

of the Joint Prehearing Stipulation. To the extent relevant and

material, those stipulated facts have been included in this

Recommended Order.

At the final hearing, Joint Exhibits 1 through 3 were

admitted in evidence. Petitioner's Exhibits 1 through 3 were

admitted in evidence. Respondent's Exhibits 1, 2, 3, 10

through 21, 23, and 25 were admitted in evidence. Respondent's

Exhibits 4 t hrough 9 were proffered but not admitted in

evidence. Respondent's Exhibits 22 and 24 were marked for

demonstrative purposes only.

At the final hearing Petitioner presented the testimony of

Glenn L. Salkind, M.D.; James Albert Ray, R.N.; and Teresa

Boley , R.N. Respondent testified in his own behalf and

presented the testimony of Roberto Morales, M.D. Respondent

proffered the testimony of Brenda Lanaris, R.N.

The court reporter failed to preserve the redirect

testimony of Teresa Boley. On March 11, 2003 , the parties filed

a joint stipulation regarding the lost testimony.

The parties agreed to file their proposed recommended

orders within ten days of the filing of the Transcript, which

was filed on February 20, 2003. On February 21, 2003, the

parties req uested an extension of time to file their proposed

recommended orders. The request was granted by order dated

February 24, 2003, extending the time to file proposed

recommended orders to March 12, 2003. The parties timely filed

their Proposed Recommended Orders, which have been considered in

rendering this Recommended Order.

FINDINGS OF FACT

1. At all times material to this proceeding, Dr. Abdel -

Aziz was a licensed physician within the State of Florida. He

has been licensed to practice medicine in Flori da since 1985.

Dr. Abdel - Aziz is board - certified in obstetrics and gynecology.

2. Since 1993, Dr. Abdel - Aziz has been patient D.D.'s

obstetrician and gynecologist. In April 2000, when D.D.

presented to Brandon Regional Hospital in labor, D.D. was 35

yea rs old and had had three prior pregnancies.

3. In 1993, D.D. has a missed abortion which was treated

with suction D & C. D.D.'s second pregnancy in 1995 was at

41 weeks with spontaneous labor, and the baby was delivered with

forceps. In 1997, D.D.'s t hird pregnancy went to term and was a

spontaneous labor with spontaneous vaginal delivery.

4. On admission to Brandon Regional Hospital on April 18,

2000, there were no known problems with D.D.'s fetus. D.D. was

admitted to labor room 3 and placed on a f etal heart monitor at

15:04 hours. The fetal heart tones at that time were reported

as 130 base line with good variability. D.D.'s contractions

were reported as two every ten minutes.

5. Dr. Abdel - Aziz ordered Pitocin to be administered to

D.D. on April 18, 2000. Pitocin is the synthetic form of

oxytocin, a hormone that is produced naturally in the body and

is responsible for causing the uterus to contract during labor.

At the time of D.D.'s admission, Brandon Regional Hospital had

an established proto col for administering Pitocin during labor.

6. Forty - five minutes later, at 15:45, the fetal heart

tones were reported to show good variability and normal rate.

There were accelerations and no decelerations were noted by

D.D.'s nurse. D.D.'s contraction s were reported to be irregular

every two to six minutes and 30 to 60 seconds in duration.

7. At 19:30 hours on April 18, 2000, D.D. was examined,

her cervix was at 3 - 4 cm dilated, 80 percent effaced, and vertex

was at - 2/ - 3 station. Artificial rupture o f the membranes was

performed at 19:30 hours, and the amniotic fluid was noted in

D.D.'s medical records to be clear.

8. At 20:45 hours the Pitocin drip was switched off to

allow for the administration of the epidural anesthetic. D.D.

received the epidur al anesthesia, and the Pitocin drip was

restarted at 21:10 hours.

9. D.D. was examined at 21:12 hours, and her cervix was

found to be 5 cm dilated and 80 percent effaced with vertex at

- 2 station. At 22:20 hours, D.D. was again examined. Her

cervix was 7 to 8 cm dilated, 100 percent effaced with vertex at

0 station.

10. At 22:24 hours, Dr. Abdel - Aziz was notified about

D.D.'s condition, and he gave instructions to the nurse on how

to contact him.

11. The hospital records for D.D. show that at 22:50

ho urs, the Pitocin drip was increased from 6 to 7 mu/min per

protocol.

12. The hospital records for D.D. show, according to the

monitor clock, that at 22:50 hours there were adequate

contractions and good fetal heart tones at baseline with

variability. T he fetal heart rate baseline was reported at

around 150 beats per minute. D.D. was receiving Pitocin at

7 mu/min.

13. Dr. Abdel - Aziz examined D.D. at 22:55 hours. There

was no fetal distress evident. D.D.'s cervix was fully dilated,

100 percent effaced , vertex at station. At that time, D.D.

began pushing. Pitocin was being administered as ordered at

7 mu/min.

14. At 22:55 hours Dr. Abdel - Aziz notified the nurse on

how to contact him with any problems and informed the nurse that

he would remain in the hospital.

15. A non - reassuring fetal heart rate pattern is a pattern

which gives one concern about the well - being of the baby. At

23:15 hours, Baby D. had a non - reassuring heart rate. The

hospital records for D.D. do not show that the nurse notified

Dr. Abdel - Aziz of the problems evident at 23:15 hours.

16. At around midnight on April 18, 2000, D.D. was still

pushing and was in the second stage of labor. The fetal heart

rates were non - reassuring at this time. A review of the fetal

heart monitor st rip showed that Baby D. was experiencing late

decelerations. A late deceleration is a slowing of the fetal

heart rate which comes at the end of a contraction and is

repetitive.

17. At midnight D.D.'s contractions and progress were

reported by the nurse s as good. Although Baby D. was showing

non - reassuring heart rate patterns, the fetal heart tones were

erroneously reported as assuring. Dr. Abdel - Aziz was not

notified of the non - reassuring heart rate which was present at

midnight.

18. D.D. was still r eceiving Pitocin at 7 mu/min at

midnight. Shortly thereafter, at 00:15 hours on April 19, 2000,

D.D.'s nurse increased D.D.'s Pitocin drip from 7 mu/min to

9 mu/min. Dr. Abdel - Aziz did not order the increased dosage of

Pitocin.

19. At 00:30 hours, the P itocin was increased to 11 mu/min

and then at 00:45 hours, increased once more to 13 mu/min.

Dr. Abdel - Aziz did not order the increase of Pitocin either at

00:30 hours or 00:45 hours. The increased dosage of Pitocin was

done by the nurse attending D.D., without the consulting

Dr. Abdel - Aziz.

20. The increases of Pitocin at 00:15, 00:30, and 00:45

hours were unnecessary as D.D. was making adequate progress on

the 7 mu/min dosage.

21. At 00:30 hours, Baby D.'s heart rate showed

tachycardia, which means th at the fetal heart rate exceeded

160 beats per minute. Tachycardia is a non - reassuring heart

rate pattern. Tachycardia was evidenced again approximately at

00:35 hours and persisted for another 20 minutes intermittently

with late decelerations.

22. At 0 1:00 hours there was a pattern of late

decelerations. At 01:15 and 01:24 hours there were episodes of

tachycardia, followed by late decelerations. At 01:31 hours the

fetal monitor shorted out for approximately eight minutes and

did not pick up the fetal heart rate. Beginning around 01:39

hours, a new fetal heart pattern appeared without either

tachycardia or late decelerations.

23. At approximately 01:30 hours, D.D. was exhausted and

wanted Dr. Abdel - Aziz to delivery the baby by using forceps.

The nurs e went to get Dr. Abdel - Aziz to examine D.D. Dr. Abdel -

Aziz presented at the D.D.'s bedside at 01:30 hours and examined

the patient. The baby's head was not low enough for a forceps

delivery. D.D. strongly wanted to have a vaginal delivery and

agreed to push for another 30 minutes. Dr. Abdel - Aziz did not

review the fetal heart monitor recordings.

24. At 01:55 hours, Dr. Abdel - Aziz again presented at

D.D.'s bedside and examined D.D. At that point, Dr. Abdel - Aziz

called for delivery by caesarean section . Dr. Abdel - Aziz did

not review the fetal heart monitor recordings.

25. D.D. was taken to the operating room. While D.D. was

on the operating table, the fetal heart rate dropped from 120 to

80, and Dr. Abdel - Aziz was so advised. Dr. Abdel - Aziz performe d

a caesarean delivery. When Dr. Abdel - Aziz opened D.D.'s

abdomen, he found meconium - stained fluid mixed with blood and

suspected there was a uterine rupture. He delivered Baby D. and

found the rupture, which he repaired.

26. D.D. experienced a "silent" rupture. No symptoms of a

rupture were present during D.D.'s labor. No complaints of

abdominal pain were recorded by D.D.'s nurses and none were

reported to Dr. Abdel - Aziz. No blood was seen oozing from the

vagina at anytime during D.D.'s labor such th at a uterine

rupture could have been suspected any earlier than when it was

noted by Dr. Abdel - Aziz when he performed a cesarean on D.D. No

meconium was present at anytime during the labor.

27. On delivery Baby D. had no pulse. After oropharyngeal

and n asopharyngeal suctioning were performed, Baby D. was given

to a neonatal service representative and was resuscitated.

Baby D. was placed on life support. The life support was later

discontinued, and Baby D. died.

28. Between the hours of 23 :00 on April 18, 2000, and 2:00

on April 19, 2000, no fetal scalp electrode was applied. It was

not necessary to apply a fetal scalp electrode because the fetal

heart monitor was recording non - reassuring fetal heart rate

patterns, which were readily discernable from looking at the

monitor's recordings.

29. The standard of care requires that when a physician

examines an obstetric patient in labor that the physician review

at least the last 30 minutes of the fetal monitoring records.

30. The standard of care of for a reasonably prudent

physician who would have examined D.D. at 01:30 hours would have

been to attempt intrauterine resuscitation by stopping the

contractions, giving oxygen, giving more IV fluids to dilute the

pitocin, and changing the position of the mother . If those

efforts were unsuccessful, an emergency cesarean section would

have been the appropriate course of action.

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proce eding. Sections 120.569 and 120.57, Florida Statutes.

32. The Department has the burden to establish the

allegations against Dr. Abdel - Aziz by clear and convincing

evidence. Department of Banking and Finance v. Osborne Stern

and Co. , 670 So. 2d 932 (Fla . 1996). Clear and convincing

evidence has both qualitative and quantitative factors.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

It requires:

that the evidence must be found to be

credible; the facts to which the witnesses

testify mus t be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact a firm belief or

convicti on, without hesitancy, as to the

truth of the allegations sought to be

established.

Id.

33. The Department has alleged that Dr. Abdel - Aziz has

violated Subsections 458.331(1)(m) and (t), Florida Statutes,

which provide:

(1) The following acts constitut e grounds

for denial of a license or disciplinary

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

* * *

(m) Failing to keep legible, as defined by

department rule in consultation with the

board, medical records that identify the

licensed physician or the physician extender

and supervising physician by name and

professional title who is or are responsible

for rendering, ordering, supervising, or

billing for each diagnostic or treatment

procedure and that justify the course of

treatment of the patient, including, but not

limited to, patient histories; examination

results; test results; records of drugs

prescribed, dispensed, or administered; and

reports of consultations and

hospitalizations.

* * *

(t) Gross or repeated malpractice or the

failure to practice medicine with that level

of care, skill, and treatment which is

recognized by a reasonably prudent similar

physician as being acceptable under similar

conditions and circumstances. The board

shall give great weight to the provisions of

s. 766.102 when enforcing th is paragraph.

As used in this paragraph, "repeated

malpractice" includes, but is not limited

to, three or more claims for medical

malpractice within the previous 5 - year

period resulting in indemnities being paid

in excess of $25,000 each to the claimant i n

a judgment or settlement and which incidents

involved negligent conduct by the physician.

As used in this paragraph, "gross

malpractice" or "the failure to practice

medicine with that level of care, skill, and

treatment which is recognized by a

reasonab ly prudent similar physician 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 a

physician be incomp etent to practice

medicine in order to be disciplined pursuant

to this paragraph.

34. The Department alleged in the Administrative Complaint

that Dr. Abdel - Aziz violated Subsection 458.331(1)(m), Florida

Statutes, by failing to document justification for the

following:

(a) Amount of time it took to diagnose that

Patient D.D. had suffered an uterine tear;

(b) Amount of time that it took to diagnose

that the fetal heart pattern was abnormal

indicating stress;

(c) Not adequately diagnosing that the

fetal heart rate pattern was abnormal

indicating severe stress;

(d) Not assessing Patient D.D.'s complaints

and symptoms of severe pain after an

epidural anesthesia was administered as a

sign that complication(s) had developed

during the labor; or

(e) The plan of treatment for Patient

D.D.'s condition in that the Respondent did

not immediately take action when an abnormal

fetal heart rate pattern indicating severe

stress developed.

35. The Department concedes in its Proposed Recommended

Order that it did not demonstrate that Dr. Abdel - Aziz failed to

keep written medical records justifying the course of treatment

for D.D. Thus, the Department has not established that

Dr. Abdel - Aziz violated Subsection 458.331(1)(m), Florida

Statutes.

36. The Department allege d in the Administrative Complaint

that Dr. Abdel - Aziz violated Subsection 458.331(1)(t), Florida

Statutes, in the following ways:

(a) Failed to diagnose in a timely manner

the following:

(1) that Patient D.D. has suffered a

uterine tear;

(2) that th e abnormal fetal heart rate

pattern was abnormal indicating severe

stress; or

(3) that the administering of pitocin

should be discontinued.

(b) Failed adequately to diagnose the

following:

(1) that Patient D.D. had suffered a

uterine tear;

(2) th at the fetal heart rate pattern was

abnormal indicating severe stress; or

(3) the use of pitocin was not

appropriate.

(c) Failed adequately to assess Patient

D.D.'s complaints and symptoms of severe

pain after an epidural anesthesia was

administered as a sign that complication(s)

had developed during labor.

(d) Failed to adequately monitor Patient

D.D. during labor:

(e) Failed to pursue an appropriate plan of

treatment for Patient D.D.'s condition in

that the Respondent failed to take immediate

action when an abnormal fetal heart rate

indicating severe stress developed.

37. The Department did not establish that Dr. Abdel - Aziz

violated Subsection 458.331(1)(t), Florida Statutes, by failing

to either timely diagnose or to adequately diagnose that D.D.

had suffered a uterine tear. The evidence showed that the

uterine tear was a silent rupture and that Dr. Abdel - Aziz could

not have diagnosed the tear until he performed the cesarean

section. When he delivered Baby D., he discovered the uterine

tear and r epaired it.

38. The Department has established by clear and convincing

evidence that Dr. Abdel - Aziz violated Subsection 458.331(1)(t),

Florida Statutes, by failing to timely and adequately diagnose

that the fetal heart rate pattern was abnormal, indicatin g

severe stress. The standard of care required the doctor to

review the fetal monitor strip at the time he examined D.D., at

least for the last thirty minutes. Had Dr. Abdel - Aziz met this

standard of care, he would have known when he examined D.D. at

01: 30 hours that there was an abnormal fetal heart rate pattern.

He did not review the fetal monitor strip; thus, he failed to

diagnose an abnormal fetal heart rate pattern.

39. The Department has established by clear and convincing

evidence that Dr. Abdel - Aziz violated Subsection 458.331(1)(t),

Florida Statutes, by failing to timely diagnose that the

administration of Pitocin should have been discontinued. When

Dr. Abdel - Aziz examined D.D. at 1:30 hours, he should have

reviewed the fetal heart rate monitor and realized that the

Pitocin should be discontinued because of the abnormal heart

rate pattern.

40. The Department has failed to establish by clear

and convincing evidence that Dr. Abdel - Aziz violated

Subsection 458.331(1)(t), Florida Statutes, by faili ng to

adequately diagnose that the use of Pitocin was improper.

Dr. Abdel - Aziz gave an appropriate order for the use of

Pitocin when D.D. was admitted to the hospital. The nurse on

duty failed to properly administer the Pitocin and failed to

discontinue the use of Pitocin when the labor pattern had been

established. She did not tell the doctor that she had continued

to increase the dosage after the labor pattern had been

established.

41. When Dr. Abdel - Aziz examined D.D. at 22:55 hours, a

review of the fetal monitoring strip for the previous 30 minutes

would not have revealed that Pitocin was still being

administered or at what dosage. The fetal heart rate pattern

showed no fetal distress, so Dr. Abdel - Aziz would have no reason

to think that the Pitoci n was being administered improperly.

The inappropriate increases in the dosage of the Pitocin came

between the hours of 00:15 and 00:45. Dr. Abdel - Aziz was not

informed of the dosage increases or of the non - reassuring fetal

heart rate pattern after the i ncreases. Since Dr. Abdel - Aziz

did not examine D.D. again until 01:30 hours, there was no way

that he could have been aware that the Pitocin had been

administered improperly.

42. The Department did not establish that Dr. Abdel - Aziz

violated Subsection 45 8.331(1)(t), Florida Statutes, by failing

to adequately assess D.D. complaints and symptoms of severe pain

after an epidural anesthesia was administered as a sign that

complications had developed with the labor. The evidence did

not establish and the part ies stipulated that no complaints of

severe abdominal pain were recorded by the nurses or reported to

the doctor.

43. The Department has established by clear and convincing

evidence that Dr. Abdel - Aziz violated Subsection 458.331(1)(t),

Florida Statutes, by failing to adequately monitor D.D. during

labor in that he failed to review the fetal monitoring strip

when he examined her at 01:30 hours.

44. The Department has established by clear and convincing

evidence that Dr. Abdel - Aziz violated Subsection 458. 331(1)(t),

Florida Statutes, by failing to pursue an appropriate plan of

treatment for D.D. when he could have determined at 01:30 hours

by looking at the fetal monitoring strip that severe stress had

developed. At that point, he should have begun intraut erine

resuscitation, which he did not do. Instead, he allowed D.D. to

push for another 25 minutes.

45. Based on the forgoing, the Department has established

by clear and convincing evidence that Dr. Abdel - Aziz violated

Subsection 458.331(1)(t), Florida Statutes, by failing to

practice medicine with that level of care, skill, and treatment

which is recognized by a reasonably prudent physician as being

acceptable under similar conditions and circumstances.

46. Rule 64B8 - 8.001(2)(t), Florida Administrativ e Code,

provides that the range of penalties for the first offense of a

violation of Subsection 458.331(1)(t), Florida Statutes, is two

years' probation to revocation or denial, and an administrative

fine from $1,000 to $10,000.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a Final Order be entered finding that

Dr. Mohamed I. Abdel - Aziz did not violate Subsection

458.331(1)(m), Florida Statutes, finding that he did violate

Subsection 458.331(1)(t), Fl orida Statutes, placing him on

probation for six months, imposing an administrative fine of

$7,500 to be paid within 90 days of the issuance of the Final

Order, and requiring the completion of six hours of continuing

medical education courses in obstetrics and four hours in risk

management within one year.

DONE AND ENTERED this 2nd day of June, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of June, 2003.

COPIES FU RNISHED :

James W. Earl, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Jon M. Pellett, Esquire

Barr, Murman, Tonelli,

Slother & Sleet, P.A.

201 East Kennedy Boulevard

Suite 1700

Tampa, Florida 33602

Will iam W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Larry McPherson, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommende d Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.