05-000840PL Department Of Health, Board Of Medicine vs. Melody M. Johnson, P.A. Status: Closed Recommended Order on Wednesday, August 17, 2005.

Summary: Petitioner failed to establish that Respondent`s diagnosis and evaluation of the patient fell below the standard of care.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0840PL

)

MELODY M . JOHNSON, P.A., )

)

Respondent. )

)

RECOMMENDED ORDER

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

on May 13, 2005, in Sebring, Florida, before Susan B. Harrell, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Robert E. Fricke , Esquire

Lynne A. Quimby - Pennock, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Michael S. Smith, Esquire

Sonneborn, Rutter, Cooney

& Klingensmith , P.A.

Post Office Box 024486

West Palm Beach, Florida 33402 - 4486

STATEMENT OF THE ISSUES

Whether Respondent violated Subsection 458.331(1)(t),

Florida Statutes (1999), 1 and, if so, what discipline should be

imposed.

PRELIMINARY STATEMENT

On January 26, 2005, Petitioner, Department of Health,

B oard of Medicine (Department), filed an Administrative

Complaint against Respondent, Melody M. Johnson, P.A.

(Ms. Johnson), 2 alleging that she violated Subsection

458.331(1)(t), Florida Statutes (2001). 3 Ms. Johnson requested

an administrative hearing, a nd the case was forwarded to the

Division of Administrative Hearings on March 4, 2005, for

assignment to an a dministrative l aw j udge. The case was

assigned to Administrative Law Judge Larry J. Sartin, but was

later transferred to the undersigned to conduc t the final

hearing.

On April 29, 2005, the Department filed Petitioner's Motion

to Amend Administrative Complaint, which was granted by order

dated May 5, 2005.

Prior to the final hearing, the parties submitted a Joint

Prehearing Stipulation, which contai ned facts to which the

parties agreed. Those facts which are contained in Section E of

the Joint Prehearing Stipulation are incorporated into this

Recommended Order to the extent relevant.

At the final hearing, Respondent advised that she had

married , and her legal name was Melody M. Johnson. The caption

of the case was changed to reflect Ms. Johnson's married name.

At the final hearing, the Department called Philip T. Nix as its

witness and proffered the testimony of Dr. Lawrence Kaplan.

Petitioner's E xhibits 1 through 4, and 6 were admitted in

evidence. Petitioner's Exhibit 9 was proffered. Official

recognition was taken of Sections 458.337 and 458.331,

Florida Statutes (2000), and Florida Administrative Code

Rule 64B8 - 30.015.

At the final hearing, Ms. Johnson testified in her own

behalf and called the following witnesses: Iqbal Ahmed, M.D. ;

Ernest Benjamin Walton ; and Don Milton Harvey, M.D.

Respondent's Exhibits 1 through 4 were admitted in evidence.

The two - volume Transcript was filed on June 3, 2005. The

parties filed their Proposed Recommended Orders on June 13,

2005. The parties ' Proposed Recommended Orders have been

considered in rendering this Recommended Order.

FINDINGS OF FACT

1. The Department is the state agency charged with the

re gulation of medicine pursuant to Chapters 20, 456, and 458,

Florida Statutes.

2. Ms. Johnson, is and was at all times material to this

proceeding, a licensed physician assistant in the State of

Florida, having been issued license number PA3320.

3. In Feb ruary 2000, Ms. Johnson was asked to help start a

program to evaluate the benefit of having physician assistants

in the Emergency Department at Highlands Regional Medical Center

(Medical Center) in Sebring, Florida. She was the only full -

time physician as sistant in the program. There were a few other

physician assistants , who worked part - time. In the trial

program, the emergency physician would work directly and closely

with the physician assistant. The physician assistant would

assess a patient and rep ort any abnormal findings to the

physician. The physician would see the patient and repeat the

assessment. Because this trial program was also a teaching

experience, the physician would advise the physician assistant

of any abnormal findings. The physic ian would tell the

physician assistant what to order and the physician assistant

would order it.

4. On April 15, 2000, Ms. Johnson was working as a

physician assistant in the Emergency Department at the Medical

Center when J.W. arrived at the Emergency De partment via

Highlands Emergency Medical Services (EMS) at about 9:40 a.m. A

copy of the EMS report was made available to the Emergency

Department staff.

5. According to the EMS report, when the EMS personnel

arrived at J.W.'s home, J.W.'s chief complain t was nausea and

vomiting. J.W. had not had adequate fluid intake in two days.

She was alert and oriented to time, place, and person , and

denied having lost consciousness. She was taken to the Medical

Center.

6 . On arrival at the Medical Center, J.W. w as complaining

of nausea and dry heaves, dizziness, and neck pain , and that she

could not raise her head . J.W. was seen by Ms. Johnson, who

examined J.W. and took a medical history. In assessing J.W.,

Ms. Johnson used a T - sheet for nausea, vomiting and d iarrhea. A

T - sheet is a form which has questions which would be germane to

the complaints of the patient. In the instant case, a T - sheet

for nausea and vomiting was appropriate based on J.W.'s primary

complaint of nausea and vomiting.

7 . Using the T - she et, Ms. Johnson found that J.W. had

nausea, had been vomiting, had muscle aches, had a headache on

the to p of her head, had blurred vision, had dizziness, and had

back pain. It was noted that J.W. had a history of high blood

pressure and was a smoker. Ms . Johnson's examination indicated

that J.W.'s neck was supple, meaning that J.W. could freely move

her neck and Ms. Johnson was able to bring J.W.'s neck from her

chin to her chest. Ms. Johnson circled on the form that J.W.

had "passed out," but this nota tion was in error. Ms. Johnson

should have circled "dizziness" which appeared in front of

"passed out" on the T - sheet.

8 . J.W. was alert and oriented to person, place, and time

during the entire time she was in the Emergency Department of

the Medical C enter. None of J.W.'s relatives were available in

the Emergency Department during the entire time that she was in

the Emergency Department.

9 . Iqbal Ahmed, M.D., Ms. Johnson's supervising physician

in the Emergency Department on April 15, 2000, also exam ined

J.W. and made an assessment. When he saw that Ms. Johnson had

indicated on the T - sheet that J.W. had passed out, he

specifically asked J.W. if she had passed out, and J.W. stated

that she had not , but that she was dizzy. Dr. Ahmed asked J.W.

about h er headache , and she indicated that the headache was not

a sudden onset and that she did not remember when it started.

J.W. denied any injury or trauma to the head and indicated that

she had a mild headache on the top of her head. He viewed the

headache as a secondary complaint.

10 . While J.W. was in the Emergency Department, she was

given Tor a dol for the body aches and pain, and A ntivert for the

nausea and lightheadedness.

1 1 . X - ray s were taken of J.W.'s lungs and cervical spine.

The X - ray s of the lu ngs indicated that there was a small patch

infiltrate in the right lower lobe. The X - ray s of the cervical

spine showed normal findings.

1 2 . Ms. Johnson diagnosed J.W. with lower lobe pneumonia,

labyrinthitis, intractable neck pain, and nausea. After

con ducting his own examination and reviewing J.W.'s X - ray s,

Dr. Ah m ed concurred with the diagnosis. Both Ms. Johnson and

Dr. Ahmed felt that J.W. should be admitted to the Medical

Center.

1 3 . J.W.'s primary care physician, Dr. Jackson, was

contacted at 1: 00 p.m. on April 15, 2000. He gave orders at

1:20 for J.W. to be admitted to the Medical Center and further

ordered laboratory tests and medications for J.W. The patient's

primary care physician indicated that he would be in to see J.W.

on the day of her admission.

1 4 . At 6:00 p.m. on April 15, 2000, the nurses' notes

indicate that after J.W. was admitted to the Medical Center, she

was complaining of neck pain and a pounding headache from her

forehead over the top of her head and back down to her neck.

J.W. was still complaining of a headache and neck pain at

9:30 p.m. At 10:00 p.m., Dr. Jackson gave verbal orders for

additional pain medication.

1 5 . On April 16, 2000, Dr. Jackson, assessed J.W. for the

first time and wrote a progress note that J.W. w as more

comfortable , but still had some neck discomfort. On the evening

of April 16, 2000, the nurses' notes indicate that a family

member had expressed concern about J.W.'s mental status, stating

that prior to going to the Medical Center, J.W. had acted

differently than normal, leaving clothing on the floor of her

home, not answering her telephone, failing to follow her normal

routine of talking on the telephone to her friend every morning ,

and walking around the house in front of her granddaughter with

n othing but a blouse on. Dr. Jackson spoke to the family member

about J.W.'s unusual behavior.

1 6 . A CT scan was ordered of J.W.'s head. The laboratory

report that the indication for the procedure was a "Change in

mental status." The CT scan revealed th at J.W. had a

subarachnoid hemorrhage. She was later transferred to another

hospital. The evidence did not establish when J.W. actually

suffered the subarachnoid hemorrhage.

1 7 . A subarachnoid hemorrhage is a rupture of a blood

vessel in the brain. Nor mally, when a patient has had a

subarachnoid hemorrhage, the primary complaint of the patient

will be the headache. The headache is usually described as the

worst headache of the patient's life, and the headache usually

starts as a sudden onset like a thu nder clap .

1 8 . Ben Walton, a physician assistant with over

20 years ' experience , testified as an expert witness on

Ms. Johnson's behalf. It was his opinion that her evaluation

and diagnosis of J.W. met the standard of care. Mr. Walton came

to this conc lusion prior to his finding out that the CT scan

taken after J.W. was admitted to hospital showed that J.W. had a

subarachnoid hemorrhage.

1 9 . Dr. Don Harvey, an emergency room physician with over

24 years ' experience, also testified on Ms. Johnson's beha lf.

Dr. Harvey is board - certified in internal medicine and in

emergency medicine. He supervises physician assistant s in the

Emergency Department at Manatee Memorial Hospital and evaluates

the performance of physician assistant s. It is Dr. Harvey's

opini on that based on J.W.'s primary complaint of nausea and

vomiting that Ms. Johnson did not fall below the standard of

care by failing to order a CT scan and failing to diagnose a

cere bro vascular or neurologic abnormality.

20 . Phillip Nix, a physician assis tant with over 20 years '

experience in emergency medicine, testified as an expert on

behalf of the Department. Mr. Nix was of the opinion that Ms.

Johnson's performance fell below the standard of care. His

opinion is based, in part, on an incorrect assum ption that J.W.

had lost consciousness at some point. Mr. Nix could not tell

when the subarachnoid hemorrhage occurred.

CONCLUSIONS OF LAW

21 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of th is

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2004).

22 . The Department has the burden to establish by clear

and convincing evidence the allegations in the Amended

Administrative Complaint. Department of Banking and Finance v.

Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996). The

Department has alleged that Ms. Johnson violated Subsection

458.331(1)(t), Florida Statutes, which provides that the

following acts constitute grounds for disciplinary action:

Gross or repeated malpractice or the failure

t o practice medicine with that level of

care, skill, and treatment, which is

recognized by a reasonably prudent similar

physician as being acceptable under similar

circumstances. The board shall give great

weight to the provisions of s. 766.102 when

enforc ing this 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

clai mant in 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 re asonably 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 incompetent to practice

medicine in order to be disciplined pursuant

to this paragraph.

2 3 . The Department alleged that Ms. Johnson violated

Subsection 458.331(1)(t), Florida Statutes, by "fail[ing] to

identify and record symptoms of cere b rovascular and neurologic

abnormality in Patient J.W." The Department has failed to

establish this allegation by clear and convincing evidence.

J.W.'s primary complaint was nausea and vomiting. Her headache

was a secondary complaint. Additionally, the symptoms of the

headache were not symptoms that would normally be found with a

subarachnoid hemorrhage. J.W. did not know when her headache

started, and she denied passing out. J.W. complained of neck

pain, and a cervical spine X - ray was taken. The X - ray did not

revea l any abnormalities. Additionally, Ms. Johnson's

supervising physician, who also examined and talked with J.W.,

came to the same diagnosis that Ms. Johnson did.

2 4 . The Department alleged that Ms. Johnson violated

Subsection 458.331(1)(t), Florida Stat utes, by "fail[ing] to

recommend adequate diagnostic procedures such as a CT scan,

testing such as a lumbar puncture, or to obtain a timely

neurology consult to evaluate and treat the cause of Patient

J.W.'s abnormal symptoms." The Department has failed t o

establish this allegation by clear and convincing evidence. The

headache as described by the patient did not warrant the

ordering of a CT scan or other diagnostic procedures.

Additionally, Dr. Ahmed did not order a CT scan, and Dr. Jackson

did not orde r a CT scan until two days after J.W.'s admission to

the Medical Center.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a f inal o rder be entered finding that

Melody M. Johnson did not violate Subsecti on 458.331(1)(t),

Florida Statutes, and dismissing the Administrative Complaint.

DONE AND ENTER ED this 17th day of August, 2005 , in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division o f 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 17th day of August , 2005 .

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida

Statutes shall be to the 1999 version.

2/ At the time of the incident in question and at the time of

the filing of the Administrative Complaint, Ms. Johnson w as

known as Melody McSorley. She will be referred to in this

Recommended Order by her new married name Melody M. Johnson.

3/ The Administrative Complaint was amended, and the date of

the statute was corrected to 1999.

COPIES FURNISHED :

Michael S. Smi th, Esquire

Sonneborn , Rutter , Cooney & Klingensmith, P.A.

Post Office Box 024486

West Palm Beach, Florida 33402 - 4486

Robert E. Fricke, Esquire

Lynne A. Quimby - Pennock, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 6 5

Tallahassee, 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, Bin A02

Ta llahassee, 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 the Final Order in this case.