03-001614PL Department Of Health, Board Of Medicine vs. Jose Rosado, M.D. Status: Closed Recommended Order on Wednesday, October 1, 2003.

Summary: Petitioner practiced below the standard of care of a prudent physician. A fine, reprimand, and additional medical education recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1614PL

)

JOSE ROSADO, M.D., )

)

Respondent. )

)

RECOMMENDED ORDE R

Administrative Law Judge Don W. Davis of the Division of

Administrative Hearings (DOAH) held a formal hearing in the

above - styled case on August 13, 2003, in Tavares, Florida.

APPEARANCES

For Petitioner: Kim M. Kluck, Esquire

Department of Health

Prosecutorial Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: William M. Furlow, Esquire

Katz, Kutter, Alderman & Bryant, P.A.

Post Office Box 1877

Tallahassee, Florida 32302 - 1877

STATEMENT OF THE ISSUE

The issue in this case is whether Jose Rosado, M.D.,

(Respondent), violated Section 458.331(1)(t), and, if so, what

penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint filed on November 13, 2002, the

Department of He alth (Petitioner) alleged that Respondent failed

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. Specifically, it is alleged that Respondent

failed to contact an infectious disease specialist for a

consultation during treatment of a patient and/or failed to

treat that patient for a resistant strain of staphylococcus with

the minimum treatment of ten to fourteen da ys of intravenous

antibiotics. Petitioner has alleged Respondent's action

constitutes a violation of Section 458.331(1)(t).

Respondent disputed the allegations of the Administrative

Complaint and requested formal administrative proceedings. The

matter w as transferred to DOAH on May 2, 2003.

At the final hearing, Respondent testified on his own

behalf and presented the deposition testimony of Felipe Ortiz,

M.D. In addition, Respondent offered three medical journal

articles into evidence as Respondent’s Exhibits A, B, and C.

Petitioner objected on the grounds of hearsay and relevance to

all three exhibits and ruling was reserved at that time. The

journal articles have not been established as authoritative

treatises and were not established as such throu gh Respondent's

expert witness. It is determined that the journal articles are

not admissible. Petitioner presented the deposition testimony

of Carlos Sotolongo, M.D. The parties also presented three

joint exhibits.

A Transcript of the final hearing wa s filed on August 27,

2003. The parties requested and were granted leave to file

Proposed Recommended Orders more than ten days after the filing

of the transcript.

Both Respondent and Petitioner filed Proposed Recommended

Orders, which have been reviewe d in conjunction with the

preparation of this Recommended Order and addressed to the

extent possible.

All citations are to Florida Statutes (2002) unless

otherwise indicated.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating

the practice of medicine pursuant to Florida law.

2. At all times material to these proceedings, Respondent

has been a licensed physician in the State of Florida, having

been issued license number ME 0068035.

3. Respondent is board - certified in internal me dicine and

cardiovascular diseases.

4. On March 10, 1997, Patient W.B.C., a 72 - year - old man,

arrived at the Leesburg Regional Medical Center (LRMC) emergency

room. He complained of a sudden onset of weakness in his left

hand and arm with numbness and ti ngling.

5. Respondent was Patient W.B.C.'s primary care physician.

Respondent admitted Patient W.B.C. with a diagnosis of

cerebrovascular accident, mitral regurgitation, sick sinus

syndrome and a history of myocardial infarction. Respondent

ordered th at Patient W.B.C. undergo a head CT scan, carotid

Doppler, 2 - D echocardiogram, an electroencephalogram, and a

neurological consultation.

6. Based on the test results and the consultation,

Respondent diagnosed Patient W.B.C. with right cerebrovascular

acc ident, mitral regurgitation, sick sinus syndrome, and history

of myocardial infarction. Respondent then discharged the

patient with Ticlid, a medication to prevent further

cerebrovascular accidents and aspirin.

7. On March 16, 1997, Patient W.B.C. was a dmitted to LRMC

complaining of weakness, dizziness and a fever. His vital signs

revealed a temperature of 103.0 F, a pulse of 118, and a blood

pressure of 139/75. The emergency room physician ordered a

chest x - ray, EKG, and urine and blood cultures.

8. The chest x - ray revealed no acute cardiopulmonary

abnormality. Urine tests revealed features consistent with the

possibility of urosepsis. Blood work showed a white blood count

of 9.15, elevated but within the normal range.

9. Also on March 16, Responde nt ordered that antibiotics

be given prophylactically until the blood cultures came back

from the laboratory.

10. The cultures came back positive for staphylococcus

aureus (staph). Staph is a notoriously “bad bug” and

Staphylococci aureus bacteremia has a high mortality rate.

Staph aureus can originate from several possible sources

including infections through the urinary tract system, IV sites,

aspiration into the lungs, and pneumonia (although not very

common).

11. Staphylococci in the bloodstream is known as

bacteremia. Bacteremia can lead to endocarditis which is an

infection of the inner lining of the heart and the heart valves.

Endocarditis is a life - threatening condition that can quickly

damage the heart valves and lead to heart failure or even death.

12. Patients with certain cardiac conditions such as

mitral valve regurgitation have a higher risk of developing

endocarditis. Patient W.B.C. had such a history.

13. On March 17, 1997, Patient W.B.C. was started on

intravenous antibiotics by Resp ondent. Patient W.B.C. continued

to receive the intravenous antibiotics for four days from

March 17, 1997, through March 20, 1997.

14. Respondent then switched Patient W.B.C. to oral

antibiotics and kept the patient in the hospital one more day

prior to discharging him with instruction to continue on the

oral antibiotics for another ten days.

15. Patient W.B.C. was discharged on March 21, 1997. He

was not referred to an infectious disease specialist nor had

Respondent obtained a consultation with any s pecialist to

determine the length of time that the patient's infection should

be treated. Respondent felt that he was adequately qualified to

treat this patient, and the treatment appeared to work.

Respondent thought the bacteria growing in the patient's blood

"likely" originated from a lung infection.

16. An infectious disease specialist should have been

consulted to give guidance as to how long to treat the

infection. The standard of care for treating a staph aureus

infection where there is a known so urce of infection requires 14

days of intravenous antibiotics. Where the source is not known,

then four to six weeks of antibiotics is recommended. In this

case, the infection, a resistant staph infection found in the

patient's blood, could have originat ed from several sources.

While such staph could have sprung from a source in the lung,

this is by no means likely and the infection could have

originated from another source.

17. The standard of care required that Respondent contact

an infectious disease specialist for an evaluation and/or that

he treat Patient W.B.C.’s staphylococcus with a minimum of 10 to

14 days of intravenous antibiotics.

18. On or about April 11, 1997, Patient W.B.C., presented

to the emergency room at LRMC complaining of congestion ,

shortness of breath, fever of 100.3° F, and a cough. The

emergency room physician performed a physical exam which

revealed vital signs of a temperature of 101.3° F, a pulse of

104, and a blood pressure of 90/54. A chest x - ray, blood work

and a urine cu lture were ordered.

19. Patient W.B.C. was then admitted on April 11, 1997,

with a diagnosis of pneumonia, an old cerebrovascular accident

and coronary artery disease. The ER physician started Patient

W.B.C. on a plan of treatment which included intraven ous

antibiotics, Vancomycin, IV fluids, and blood cultures. A

physical examination on the patient revealed a temperature of

101.3° F, a pulse of 104 and blood pressure of 91/53. The

attending physician diagnosed him with probable sepsis with

pneumonia.

20. On April 12, 1997, the blood cultures came back

positive for Staphylococcus aureus bacteremia .

21. On April 15, 1997, Patient W.B.C. was afebrile

(without fever) and his white blood cell count was 10.23, which

is within the normal range of 4.0 to 11. 0. The patient

continued in this condition through April 18, 1997, despite

suffering from sepsis.

22. On April 18, 1997, Respondent approved Patient W.B.C.

for transfer to another institution for consideration for urgent

mitral valve replacement. On Apr il 19, 1997, Patient W.B.C.

arrested and was pronounced dead at 5:53 a.m.

23. Petitioner’s expert, Carlos Sotolongo, M.D., is board -

certified in internal medicine, cardiovascular disease and

nuclear cardiology. As established by Dr. Sotolongo's

testimony , Respondent practiced below the standard of care by

failing to treat Patient W.B.C. with a sufficient number of days

of intravenous antibiotics and by failing to consult an

infectious disease specialist. According to Dr. Sotolongo,

there is a difference in the way that an uncomplicated pneumonia

is treated as opposed to a pneumonia complicated by bacteremia.

The latter must be treated more aggressively.

24. Based on the foregoing, Respondent violated Section

458.331(1)(t), by failing to practice medici ne 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.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding, pursuant to Sections 120.569 and 120.57(1).

26. Pursuant to Section 458.331(2), Petitioner, Board of

Medicine is empowered to revoke, suspend or otherwise discipline

the license of a physician for the following violation of

Section 458.331(1):

(t) Failing 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.

27. License disciplinary proceedings are penal in nature.

State ex rel. Vining v. Florida Real Estate Commission , 281 So.

2d 487 (Fla. 1973). In this disciplinary proceeding, Petitioner

must prove the alleged violations of Section 458.331(1)(t),

Florida Stat utes, by clear and convincing evidence. Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1st DCA 1987).

28. Petitioner in this case has demonstrated, by clear and

convincing evidence, that the Respondent failed to practice

medicine with that level of care, skil l, and treatment which is

recognized by a reasonably prudent similar physician as being

acceptable under similar conditions and circumstances.

29. The disciplinary guidelines of the Board of Medicine,

found at Rule 59R - 8.001, Florida Administrative Code, provide a

range of penalties for violations of the provisions of Section

458.331(1)(t), as follow:

(t) Failure to practice medicine with that

level of care, skill, and treatment which is

recognized by a reasonably prudent physician

as being acceptable und er similar conditions

and circumstances -- From two(2) years

probation to revocation or denial, and an

administrative fine from $250.00 to

$5,000.00.

RECOMMENDATION

Based on the foregoing, it is recommended that a Final

Order be entered finding that Respon dent violated Section

458.331(1)(t), and imposing a penalty which includes a formal

reprimand, payment of an Administrative Fine in the amount of

$5,000.00 within 180 days, and eight hours of Continuing Medical

Education (CME) to be completed within the ne xt 12 months

dealing with the diagnosis and treatment of infections and/or

risk management.

DONE AND ENTERED this 1st day of October, 2003, in

Tallahassee, Leon County, Florida.

S

DON W. DAVIS

Administrative Law Judge

Div ision 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

thi s 1st day of October, 2003.

COPIES FURNISHED :

William M. Furlow, Esquire

Katz, Kutter, Alderman, Bryant & Yon, P.A.

Post Office Box 1877

Tallahassee, Florida 32302 - 1877

Kim M. Kluck, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallaha ssee, Florida 32399 - 3265

R. S. Power, Agency Clerk

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

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue t he final order in this case.