03-002537PL Department Of Health, Board Of Medicine vs. Andrew Logan, M.D. Status: Closed Recommended Order on Thursday, February 19, 2004.

Summary: Respondent violated Section 458.33(1)(t), Florida Statutes. Respondent failed to identify the patient before performing surgery.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 03 - 2537PL

)

ANDREW LOGAN, M.D., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pu rsuant to notice, a formal hearing was held in this case

before Larry J. Sartin, an Administrative Law Judge of the

Division of Administrative Hearings, in Fort Lauderdale,

Florida, on December 1, 2003.

APPEARANCES

For Petitioner: Ephraim D. Livingston, E squire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: James S. Haliczer, Esquire

Lori D. Kemp, Esquire

Haliczer Pettis, P.A.

101 Northeast Third Avenue

Sixth Floor

F ort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Andrew Logan,

M.D., committed a violation of Section 458.331(1)(t), Florida

Statutes, as alleged in an Administrative Complaint filed by

Petitioner, the De partment of Health, on April 30, 2003, and, if

so, what disciplinary action should be taken against him.

PRELIMINARY STATEMENT

On or about April 30, 2003, the Department of Health filed

an Administrative Complaint against Andrew Logan, M.D., a

Florida - lice nsed medical doctor, before the Board of Medicine.

On or about July 7, 2003, 1 Dr. Logan, by letter from counsel,

disputed the allegations of fact contained in the Administrative

Complaint and requested a formal administrative hearing pursuant

to Section 1 20.569(2)(a), Florida Statutes. On July 14, 2003,

the matter was filed with the Division of Administrative

Hearings, with a request that an administrative law judge be

assigned the case. The matter was designated DOAH Case Number

03 - 2537PL and was assig ned to the undersigned.

The final hearing was scheduled by Notice of Hearing

entered July 23, 2003, for September 17, 2003. The hearing was

continued several times and ultimately scheduled for December 1

and 2, 2003.

On November 26, 2003, a Joint Preheari ng Stipulation was

filed by the parties.

At the final hearing, Petitioner offered and had admitted

ten exhibits. Petitioner called no witnesses during the final

hearing, but offered the deposition testimony of William Cobb,

M.D. (Petitioner's Exhibit 5), Joel Kramer, M.D. (Petitioner's

Exhibit 7), Ann Tuza, R.N. (Petitioner's Exhibit 8), and Lowell

Sherris, M.D. (Petitioner's Exhibit 9).

Respondent testified on his own behalf and presented the

testimony of Harry Hamburger, M.D. Respondent offered and had

admitted two exhibits.

A Notice of Filing of Transcript issued January 15, 2004,

informed the parties that the Transcript of the final hearing

had been filed that same day and that they had until January 26,

2004, to file proposed recommended orders. Both parties timely

filed proposed orders, which have been fully considered in

rendering this Recommended Order.

FINDINGS OF FACT

A. The Parties .

1. Petitioner, the Department of Health (hereinafter

referred to as the "Department"), is the agency of the Stat e of

Florida charged with the responsibility for the investigation

and prosecution of complaints involving physicians licensed to

practice medicine in Florida.

2. Respondent, Andrew Logan, M.D., is, and was at the

times material to this matter, a physicia n licensed to practice

medicine in Florida, having been issued license number ME

0058658. Dr. Logan's last known business address is 8551 West

Sunrise Boulevard, Suite 105, Plantation, Florida 33322.

3. At the times material to this matter, Dr. Logan was

certified in ophthalmology. He specializes in medical and

surgical ophthalmology.

4. Dr. Logan received a bachelor of arts degree in biology

in 1982 from Brown University. He received his medical degree

in 1986 from the University of California, San Fr ancisco. 2

5. Dr. Logan completed a residency in ophthalmology.

6. Dr. Logan has practiced medicine in Florida since 1990.

At the times relevant to this matter, Dr. Logan worked in a

group practice in Plantation, Florida. Most of his practice

consisted of an office practice, seeing patients. He also

performed some laser and minor surgeries in the office.

Approximately once a week, for half a day, he performed surgery

out of the office at "three hospitals and surgical centers."

7. Dr. Logan's license t o practice medicine has not been

previously disciplined.

B. The Department's Administrative Complaint and

Dr. Logan's Request for Hearing .

8. On April 30, 2003, the Department filed an

Administrative Complaint against Dr. Logan before the Board of

Me dicine (hereinafter referred to as the "Board"), alleging that

his treatment of one patient, identified in the Administrative

Complaint as C. S., constituted 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 recognized acceptable treatment will

hereinafter be referred to as the "Standard of Care"), a

violation of Secti on 458.331(1)(t), Florida Statutes.

9. In particular, it is alleged in the Administrative

Complaint that Dr. Logan violated the Standard of Care in "one

or more of the following ways":

a. Respondent failed to identify the

correct patient for the implanta tion of the

23 diopter lens;

b. Respondent failed to verify that the

lens he implanted into Patient C.S. was the

power of lens that he had previously

ordered;

c. Respondent implanted the wrong lens into

the left eye of Patient C.S.

The factual allegat ions of the Administrative Complaint,

although stated differently, essentially allege that Dr. Logan

operated on the wrong patient.

10. Dr. Logan filed a request for a formal administrative

hearing with the Department, which was filed by the Department

wi th the Division of Administrative hearings.

C. Treatment of Patient C.S.

11. C.S., who was 70 years of age at the time of the

incident involved in this matter, began seeing Dr. Logan for eye

care in approximately February 1997.

12. C.S. developed catara cts in both eyes, for which

Dr. Logan diagnosed and suggested surgical treatment. 3

13. Dr. Logan explained the procedure he believed

necessary to remove C.S.'s cataracts to her and obtained her

approval thereof. The procedure to be performed on C.S., kno wn

as phacoemulisification, consisted of making an very small

incision in her eye, breaking up her natural, or intraocular,

lens with ultrasound, irrigating the eye, and then suctioning

out the destroyed lens and irrigation material. Once the

intraocular lens is removed, it is replaced with an artificial

lens, the power and model of which is selected by the physician.

14. Dr. Logan determined that the lens needed to restore

C.S.'s vision in her left eye after removal of her intraocular

lens was a 15 - diopt er lens. The "diopter" of a lens relates to

the corrective power of the lens.

15. C.S. was scheduled for the planned cataract surgery on

her left eye at the Surgery Center of Coral Springs (hereinafter

referred to as the "Surgery Center") for the morning of

September 5, 2000. 4 C.S. was one of at least two patients

scheduled for surgery by Dr. Logan that morning.

16. The Surgery Center is a free - standing center where

various types of surgery are performed. Dr. Logan was not an

owner or employee of the S urgery Center. He did not hire, nor

could her fire, any employee of the Surgery Center, and none of

the equipment utilized in the Surgery Center was owned by him. 5

17. Consistent with established procedures, the Surgery

Center was faxed information conce rning C.S.'s scheduled

surgery. In particular, the facsimile identified C.S. by name,

which eye was to be operated on (her left eye), and the power

(15 - diopter) and model number of the replacement lens Dr. Logan

had determined was necessary to restore C.S .'s vision after the

surgery.

18. The day before C.S.'s scheduled surgery, Dr. Logan was

provided with C.S.'s patient records and the records of the

other patient scheduled for surgery on September 5, 2000. He

reviewed those records either that afternoon or that night. He

also took the records with him to the Surgery Center where he

reviewed them again.

19. On or around the morning of September 5, 2000, the

Surgery Center's nurse manager took the facsimiles that had

previously been sent to the Surgery C enter by Dr. Logan's office

and retrieved the lens for each patient scheduled for surgery

that day. When the nurse manager retrieved the lens, she was

expected to ensure that the ordered lens, both as to power and

model, were available, and that they were within their

expiration date. She then bundled the lens and the facsimile.

Three lens per patient were routinely retrieved. The bundles

were then placed on a table in the operating room in the order

they were supposed to be used.

20. The order of surg ery for September 5, 2000, had been

prearranged and that information was available on a list

prepared by the Surgery Center to all of those involved in the

surgery that morning, including Dr. Logan and his surgery team.

C.S. had been scheduled to be the s econd patient seen that

morning.

21. When C.S. arrived at the Surgery Center she was

eventually taken to a pre - operation room (hereinafter referred

to as "pre - op") to be readied for surgery.

22. The patient who had been scheduled for the first

surgery of the morning (hereinafter referred to as the "First

Scheduled Patient"), had been late arriving on September 5,

2000. C.S. had come early. Therefore, C.S. was taken to pre - op

in place of the First Scheduled Patient. What exactly

transpired after C.S. wa s taken to pre - op was not explained.

The nurse manager, who had overall responsibility for getting

patients ready for surgery did not testify during this

proceeding and the circulating nurse, Ann Tuza, was unable to

recall what took place in any detail. What was proved is that

Dr. Logan was not informed of the switch and the records and

lens, which had been placed in the order of the scheduled

surgeries for that day, were not changed to reflect that C.S.

would be taken to surgery in place of the First Sch eduled

Patient. Therefore, although C.S. was the first patient into

surgery, the records and lenses of the First Scheduled Patient

were not replaced with C.S.'s records or lens.

23. As was his practice, before going into the operating

room, Dr. Logan wen t to pre - op to administer a local anesthesia.

Dr. Logan, who had not been informed that the second scheduled

patient, C.S., had been substituted for the First Scheduled

Patient, administered the anesthesia to C.S. Dr. Logan found

C.S. asleep. Dr. Logan did not recognize C.S. and he did not

speak to her, as would have been his practice had she been

awake, or otherwise identify her. Dr. Logan injected a local

anesthesia by needle under and behind C.S.'s left eye, 6 a

procedure referred to as a "block" or " retrobulbar block." 7

24. After the block had time to take effect, which

normally took approximately five to ten minutes, Nurse Tuza went

to retrieve C.S. from pre - op and bring her to the operating

room.

25. C.S. was brought into the operating room by Nur se Tuza

and prepared for surgery. She was covered completely except for

her feet and her left eye, which had an "X" placed over it to

identify the eye to be operated on. Nurse Tuza remained in the

operating room, along with a scrub technician, who assist ed Dr.

Logan, and a nurse anesthetist. None of these individuals

apparently checked to ensure that they were correct in their

assumption that the patient was the First Scheduled Patient.

26. Dr. Logan, who did not recall what he did between

seeing C.S. i n pre - op and arriving at the operating room,

completed scrubbing and entered the operating room where C.S.

awaited. He had placed his charts in the operating room. His

routine after arriving in the operating room was to go to the

head of the patient and adjust a microscope used during the

surgery. It is inferred that he did so on the morning of

September 5, 2000.

27. Although C.S. was awake when she was taken into the

operating room and during the surgery, no one, including Dr.

Logan, asked her her name . Nor did anyone, including Dr. Logan,

check to see if she was wearing a wrist - band which identified

her. Instead everyone, including Dr. Logan, assumed that they

were operating on the First Scheduled Patient.

28. Not actually knowing who he was operati ng on, 8

Dr. Logan performed the surgery scheduled for the First

Scheduled Patient on C.S. Although the procedure her performed

on C.S., fortunately, was the same one scheduled for C.S., the

diopter of the replacement lens was not. 9 The First Scheduled

Pa tient was to receive a 23 - diopter lens, rather than C.S.'s 15 -

diopter lens. Dr. Logan placed the 23 - diopter lens in C.S.'s

eye, completed the procedure, and C.S. was taken to recovery.

29. When Nurse Tuza went to get the next patient for

surgery, who she expected to be C.S., she discovered for the

first time that C.S. had been substituted for the First

Scheduled Patient. She immediately informed Dr. Logan of the

error.

30. Dr. Logan went to the recovery room and, after

ensuring that C.S. was alert enoug h to comprehend what he was

saying, informed C.S. of the error. She consented to

Dr. Logan's suggestion the he take her back into the operating

room, remove the 23 - diopter lens, and replace it with the

correct, 15 - diopter lens, which he immediately did.

3 1. The replacement procedure required no additional trip

to the Surgery Center, anesthesia, or incisions.

32. C.S. recovered from the procedures without problem or

direct harm. She continued to see Dr. Logan as her eye care

until a change in insurance p revented her from doing so.

D. Standard of Care .

33. There was little dispute that Dr. Logan "failed to

identify the correct patient for the implantation of the 23

diopter lens"; "failed to verify that the lens he implanted into

Patient C.S. was the powe r of lens that he had previously

ordered [for her]"; and "implanted the wrong lens into the left

eye of Patient C.S." These facts, which form the factual basis

for the Department's allegation that Dr. Logan violated the

Standard of Care, have been proved.

34. Including Dr. Logan, five physicians gave opinions in

this proceeding as to whether Dr. Logan's actions violated the

Standard of Care: Drs. William Cobb, Harry Hamburger, Joel

Kramer, and Lowell Sherris. The testimony of Drs. Cobb and

Kramer, prima rily, and, to a lesser degree, the testimony of the

Dr. Logan and the other two physicians, support a finding that

Dr. Logan's actions, as alleged in the Administrative Complaint,

constitute a violation of the Standard of Care.

35. The testimony of Drs. C obb, Kramer, and Sherris, which

was credible and persuasive, have been summarized in the

Department's proposed recommended order, and will not, in light

of recent changes in Section 456.073(5), Florida Statutes, be

summarized in any detail here.

36. All o f the physicians who testified, including Dr.

Logan, agreed that a physician must know on whom he or she is

operating and that operating on the wrong patient or inserting

the wrong lens in a patient's eye is inappropriate.

37. Dr. Logan, with Dr. Hamburge r's support, attempted to

prove that Dr. Logan did not violate the Standard of Care,

despite the fact that he "failed to identify the correct patient

for the implantation of the 23 diopter lens"; " failed to verify

that the lens he implanted into Patient C. S. was the power of

lens that he had previously ordered [for her]"; and "implanted

the wrong lens into the left eye of Patient C.S.," by suggesting

the following:

78. It is reasonable and common practice in

the South Florida community for a

physician to r ely on the staff of a

surgical center to identify a patient

prior to surgery and bring the patients

[sic] back in the order originally

anticipated.

79. Dr. Logan had several safeguards in

place to avoid the error that occurred

in this case.

80. The sta ndard of care does not require

that physician act as a supervisor who

is responsible for every act of the

healthcare provided team.

81. This incident occurred due to an error

of the staff at the Surgical Center at

Coral Springs.

. . . .

Respondent's Pr oposed Final [sic] Order, paragraph 78.

38. The proposed findings quoted in paragraph 37 are based

primarily on Dr. Hamburger's, and to a lesser extent,

Dr. Logan's, assertion that the surgery was a team effort, that

the team had established procedures t o identify the patient, and

that the team failed in this instance to properly identify the

patient. This testimony, and the proposed findings quoted in

paragraph 37 are rejected. Nothing in the procedures followed

in this instance alleviated Dr. Logan's responsibility to ensure

that he actually established for himself who he was about to

perform surgery on, a task which would have taken little effort.

CONCLUSIONS OF LAW

A. Jurisdiction .

39. The Division of Administrative Hearings has

jurisdiction over t he subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569, 120.57(1), and

456.073(5), Florida Statutes (2003).

B. The Charges of the Administrative Complaint .

40. In its Administrative Complaint, the Department has

alle ged that Dr. Logan has violated Section 458.331(1)(t),

Florida Statutes (2000), which provides in pertinent part, that

the following constitutes grounds for discipline of a

physician's license to practice medicine in Florida:

. . . . [T]he failure to pra ctice 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. . . .

41. The Department has asserted that Dr. Logan violated

Secti on 458.331(1)(t), Florida Statutes (2000), or the Standard

of Care" when he "failed to identify the correct patient for the

implantation of the 23 diopter lens"; "failed to verify that the

lens he implanted into Patient C.S. was the power of lens that

he had previously ordered [for her]"; and "implanted the wrong

lens into the left eye of Patient C.S."

C. The Burden and Standard of Proof .

42. The Department seeks to impose penalties against

Dr. Logan through the Administrative Complaint that include

sus pension or revocation of his license and/or the imposition of

an administrative fine. Therefore, the Department has the

burden of proving the specific allegations of fact that support

its charge that Dr. Logan violated Section 458.331(1)(t),

Florida Statu tes (2000), by clear and convincing evidence.

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Co. , 670 So. 2d 932

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987);

Pou v. Department of In surance and Treasurer , 707 So. 2d 941

(Fla. 3d DCA 1998); and Section 120.57(1)(h), Florida Statutes

("Findings of fact shall be based on a preponderance of the

evidence, except in penal or licensure disciplinary proceedings

or except as otherwise provided by statute.").

43. What constitutes "clear and convincing" evidence was

described by the court in Evans Packing Co. v. Department of

Agriculture and Consumer Services , 550 So. 2d 112, 116, n. 5

(Fla. 1st DCA 1989), as follows:

. . . [C]lear and convincin g evidence

requires that the evidence must be found to

be credible; the facts to which the

witnesses testify must be distinctly

remembered; the evidence 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

the firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 198 3).

See also In re Graziano , 696 So. 2d 744 (Fla. 1997); In re

Davey , 645 So. 2d 398 (Fla. 1994); and Walker v. Florida

Department of Business and Professional Regulation , 705 So. 2d

652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

D. The Department's Pro of .

44. The proof presented by the Department in this case was

clear and convincing as to the specific factual allegations of

the Administrative Complaint. The only real dispute between the

parties is whether those actions constitute a violation of the

S tandard of Care.

45. It is no longer clear whether the determination of

whether a physician has violated the Standard of Care, which

previously clearly required both a finding of fact to be made by

this forum, is a question of law solely within the provin ce of

the Board to decide . By operation of new legislation enacted

during the 2003 session of the Florida Legislature, effective

September 15, 2003, prior the formal hearing in this case,

"[t]he determination of whether or not a licensee has violated

the laws and rules regulating the profession, including a

determination of the reasonable standard of care, is a

conclusion of law to be determined by the board . . . and is not

a finding of fact to be determined by an administrative law

judge." See Chapter 2 003 - 416, Laws of Florida 2003, Ch. 2003 -

416, at § 20 (amending Section 456.073(5), Florida Statutes

(2002)).

46. The foregoing legislative change suggests that there

is no longer any need for an administrative law judge to decide

the factual question of w hether a physician violated the

Standard of Care. The following change in Section

458.331(1)(t), Florida Statutes, however, suggests that such

findings are to be made:

. . . . A recommended order by an

administrative law judge or a final order of

the boa rd finding a violation under this

paragraph shall specify whether the licensee

was found to have committed "gross

malpractice," "repeated malpractice," or

"failure to practice medicine with that

level of care, skill, and treatment which is

recognized as be ing acceptable under similar

conditions and circumstances," or any

combination thereof, and any publication by

the board must so specify.

This language specifically requires an administrative

law judge to decide the issue despite the language

quoted in pa ragraph 45.

47. Despite the confusion over the role of the

administrative law judge in a case such as this, where the

ultimate issue to be decided is whether a physician has violated

the Standard of Care, the parties in this case agreed at the

outset of the hearing that they did not believe that change in

the law quoted in paragraph 45 required any change in the manner

in which they presented their evidence, the manner in which the

hearing should be conducted, or the appropriate content of this

Recommende d Order. By their statements and actions at hearing,

and in their proposed orders, both parties have agreed that the

nature of the evidence to be offered and considered in this

case, and the findings to be based thereon, should not be

limited by the above - quoted changes to the determination of

whether the Standard of Care has been violated. Both parties

requested, and, therefore, were granted, the opportunity to

offer expert witness testimony on the subject matter of whether

Dr. Logan violated the Standar d of Care. The proposed orders

submitted by the parties also do address the issue of whether

Dr. Logan violated the Standard of Care in essentially the same

manner that was addressed in proposed orders and recommended

orders prior to the adoption of the a bove - quoted statutory

language.

48. It is concluded, based upon the Findings of Fact made

in this Recommended Order and the arguments of the parties in

their proposed orders, that there is clear and convincing

evidence in the record of this case that Dr. Logan committed the

factual allegations of the Administrative Complaint and that by

those actions, in failing to properly identify whom he was

performing surgery on the morning of September 5, 2000,

constituted a violation of the Standard of Care.

E. The Appropriate Penalty

49. In determining the appropriate punitive action to

recommend to the Board in this case, it is necessary to consult

the Board's "disciplinary guidelines," which impose restrictions

and limitations on the exercise of the Board's disci plinary

authority. See Parrot Heads, Inc. v. Department of Business and

Professional Regulation , 741 So. 2d 1231 (Fla. 5th DCA 1999).

50. The Board's guidelines are set out in Florida

Administrative Code Rule 64B8 - 8.001, which provides the

following "pur pose" and instruction on the application of the

penalty ranges provided in the Rule:

(1) Purpose. Pursuant to Section

456.079, F.S., the Board provides within

this rule disciplinary guidelines which

shall be imposed upon applicants or

licensees whom it regulates under Chapter

458, F.S. The purpose of this rule is to

notify applicants and licensees of the

ranges of penalties which will routinely be

imposed unless the Board finds it necessary

to deviate from the guidelines for the

stated reasons given wi thin this rule. The

ranges of penalties provided below are based

upon a single count violation of each

provision listed; multiple counts of the

violated provisions or a combination of the

violations may result in a higher penalty

than that for a single, i solated violation.

Each range includes the lowest and highest

penalty and all penalties falling between.

The purposes of the imposition of discipline

are to punish the applicants or licensees

for violations and to deter them from future

violations; to of fer opportunities for

rehabilitation, when appropriate; and to

deter other applicants or licensees from

violations.

(2) Violations and Range of Penalties.

In imposing discipline upon applicants and

licensees, in proceedings pursuant to

Section 120.57( 1) and 120.57(2), F.S., the

Board shall act in accordance with the

following disciplinary guidelines and shall

impose a penalty within the range

corresponding to the violations set forth

below. The verbal identification of

offenses are descriptive only; t he full

language of each statutory provision cited

must be consulted in order to determine the

conduct included.

51. Florida Administrative Code Rule 64B8 - 8.001(2)(t),

goes on to provide, in pertinent part, the following range of

penalties for a first of fense of violating Section

458.331(1)(t), Florida Statutes: "From two (2) years probation

to revocation . . . and an administrative fine from $1,000.00 to

$10,000.00."

52. Florida Administrative Code Rule 64B8 - 8.001(3),

provides that, in determining the appropriate penalty, the

following aggravating and mitigating circumstances are to be

taken into account:

(3) Aggravating and Mitigating

Circumstances. Based upon consideration of

aggravating and mitigating factors present

in an individual case, the Bo ard may deviate

from the penalties recommended above. The

Board shall consider as aggravating or

mitigating factors the following:

(a) Exposure of patient or public to

injury or potential injury, physical or

otherwise: none, slight, severe, or death;

(b) Legal status at the time of the

offense: no restraints, or legal

constraints;

(c) The number of counts or separate

offenses established;

(d) The number of times the same offense

or offenses have previously been committed

by the licensee or applicant;

(e) The disciplinary history of the

applicant or licensee in any jurisdiction

and the length of practice;

(f) Pecuniary benefit or self - gain

inuring to the applicant or licensee;

(g) The involvement in any violation of

Section 458.33 1, Florida Statutes, of the

provision of controlled substances for

trade, barter or sale, by a licensee. In

such cases, the Board will deviate from the

penalties recommended above and impose

suspension or revocation of licensure;

(h) Any other relevant mitigating

factors.

53. In its Proposed Recommended Order, the Department has

requested that it be recommended that the following penalties be

imposed on Dr. Logan: an "administrative fine of $10,000.00,

the completion of four hours of continuing medic al education in

risk management, a one hour lecture on wrong patient surgery and

how to avoid it, and a letter of concern from the Board of

Medicine."

54. Having carefully considered the facts of this matter

in light of the provisions of Florida Administr ative Code Rule

64B8 - 8.001, it is concluded that the Department's suggested

penalty, with an administrative fine of $5,000.00 rather than

$10,000.00, is reasonable. A single offense was proved in this

case, this is Dr. Logan's first disciplinary action, t here was

no proof of any pecuniary gain to Dr. Logan or financial loss to

C.S., the problem was discovered and correctly shortly after the

error occurred, and the exposure of C.S. and the public to

injury or potential injury, physical or otherwise was slig ht and

none, respectively.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the a final order be entered by the Board

of Medicine finding that Andrew Logan, M.D., has violated

Section 458.331(1)(t), Flor ida Statutes (2000), as alleged in

the Administrative Complaint, requiring the payment of an

administrative fine of $5,000.00, completion of four hours of

continuing medical education in risk management, and attendance

at a one hour lecture on wrong patien t surgery and how to avoid

it, and issuing Dr. Logan a letter of concern from the Board of

Medicine.

DONE AND ENTERED this 19th day of February, 2004, in

Tallahassee, Leon County, Florida.

S

___________________________________

LARRY J. SARTIN

Adm inistrative 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

F iled with the Clerk of the

Division of Administrative Hearings

this 19th day of February, 2004.

ENDNOTES

1 / No explanation was given as to why an Election of Rights form

was not filed by Dr. Logan or why more than two months lapsed

before he requested a hearing.

2 / A number of p roposed findings of fact have been included in

Dr. Logan's proposed order concerning his credentials and

training. No citation to the record has been made to support

these proposed findings and no record support has been found.

3 / There is no dispute as to the appropriateness of Dr. Logan's

diagnosis, recommended course of treatment, or his treatment of

C.S. other than his treatment of her on April 5, 2000.

4 / Cataract surgery had previously been performed by Dr. Logan

on C.S.'s right eye.

5 / Dr. Log an was, however, responsible for any surgical

procedure he performed and the staff assisting him in any

surgical procedure were subject to his direction. More

importantly, he was responsible for his patient's well - being.

6 / Anesthesia was administered t o C.S. by I.V. while she was

asleep and before Dr. Logan inserted the needle.

7 / In its proposed order, the Department has suggested findings

of fact that administering the block was an invasive procedure,

which Dr. Logan performed without making any eff ort to verify

who the patient was other than to look at the medical chart.

While true, the Administrative Complaint does not allege this to

be a fact which supports the Department's allegation that Dr.

Logan violated the Standard of Care in his treatment of C.S.

The Department's suggested facts are, therefore, irrelevant

because the grounds proven in support of the Department's

assertion that Dr. Logan license should be disciplined are

limited to those specifically alleged in the Amended

Administrative Co mplaint. See , e.g. , Cottrill v. Department of

Insurance , 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v.

Department of State , 501 So. 2d 129 (Fla. 5th DCA 1987); and

Hunter v. Department of Professional Regulation , 458 So. 2d 842

(Fla. 2nd DCA 1984).

8 / Although Dr. Logan at first testified that he had been told

that the patient was the First Scheduled Patient by name, he

later admitted that he could not recall if anyone in the

operating room had named the patient.

9 / Consistent with established procedu res, prior to inserting

the intraocular lens into C.S.'s eye, the circulating nurse read

aloud the model and power of the lens from the lens box. Dr.

Logan verified this information by looking at a copy of the

faxed order that was taped to the microscope. Unfortunately, in

this instance the box contained the lens for the First Scheduled

Patient and the fax order taped to the microscope was also for

the First Scheduled Patient.

COPIES FURNISHED:

Ephraim D. Livingston, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahas see, Florida 32399 - 3265

James S. Haliczer, Esquire

Lori D. Kemp, Esquire

Haliczer Pettis, P.A.

101 Northeast Third Avenue, Sixth Floor

Fort Lauderdale, Florida 33301

Dr. John O. Agwunobi, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Ta llahassee, Florida 32399 - 1701

William 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

1940 North Monroe Street

Tall ahassee, Florida 32399 - 0792

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 t hat

will issue the final order in this case.