05-002796PL Department Of Health, Board Of Medicine vs. Keith J. Dietrick, M.D. Status: Closed Recommended Order on Monday, November 21, 2005.

Summary: Petitioner failed to prove that Respondent performed a right-side lumbear rhizotomy on the wrong side when the patient agreed to change the side immediately before surgery.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD )

OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 05 - 2796PL

)

KEITH M. DIETRICK, )

)

Respondent. )

_____________________________ _)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing by

videoconference in Tallahassee, Florida, on September 28, 2005.

The parties, attorneys for the parties, witnesses, and court

reporter participated by videoconference in West Palm Beach,

Florida.

APPEARANCES

For Petitioner: Irving Levine

Assistant General Counsel

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Dennis A. Vandenberg

Peterson Bernard

1550 Southern Boulevard

West Palm Beach, Florida 33406

STATEM ENT OF THE ISSUE

The issue is whether Respondent is guilty of performing

wrong - site surgery or performing a procedure without the

patient's consent and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint filed Decemb er 2, 2003,

Petitioner alleged that, on February 28, 2003, Respondent, a

licensed physician in Florida, performed a right - sided lumbar

facet rhizotomy on Patient K. D., as the Administrative

Complaint was later amended. As amended, the Administrative

Comp laint alleges that Respondent's partner had performed a

right - sided lumbar facet rhizotomy on the same patient on

February 14, 2003.

The Administrative Complaint states that this procedure,

which is designed to eliminate or reduce pain within the spinal

f acets, is performed by using a needle to place a small

electrode next to the facet, under X - ray guidance. The

physician then applies an electric current to cauterize the

nerves that innervate the facet joint.

The Administrative Complaint alleges that, pr ior to the

procedure, Respondent obtained an informed consent from Patient

K. D. for a left - sided lumbar facet rhizotomy. The

Administrative Complaint alleges that, after performing the

right - sided procedure and then realizing that he had performed

the pr ocedure on the wrong side, Respondent immediately

performed a left - sided procedure.

Count I of the Administrative Complaint alleges that

Respondent violated Section 456.072(1)(aa), Florida Statutes, by

performing a wrong - site procedure. Count II alleges that

Respondent violated Section 458.331(1)(p), Florida Statutes, by

performing professional services that had not been duly

authorized by the patient.

Respondent transmitted the file to the Division of

Administrative Hearings on August 3, 2005. Responde nt made the

above - described amendments to the Administrative Complaint,

pursuant to leave granted by the Administrative Law Judge on

August 30, 2005.

At the hearing, Petitioner called one witness and offered

into evidence two exhibits: Petitioner Exhib its 1 - 2.

Respondent called four witnesses and offered into evidence three

exhibits: Respondent Exhibits 1 - 3. All exhibits were admitted.

The court reporter filed the transcript on October 19,

2005. The parties filed their proposed recommended orders b y

November 7, 2005.

FINDINGS OF FACT

1. At all material times, Respondent has been licensed as

a physician in the state of Florida. His license number is ME

85786. Respondent is Board - certified in anesthesiology and pain

management by the American Board o f Anesthesiology. Respondent

has not previously been disciplined by the Board of Medicine.

2. Patient K. D. suffered a back injury in November 1998.

Following a laminectomy, Patient K. D. continued to suffer from

chronic low - back pain. She visited Respon dent's pain management

clinic for pain relief and has been quite satisfied with the

treatment that she has received from Respondent.

3. On February 14, 2003, one of Respondent's partners

performed a right - side lumbar rhizotomy by pulsed

radiofrequency. T he purpose of this procedure is to relieve or

eliminate pain in the lower back. When performed by pulsed

radiofrequency, the rhizotomy would probably not have been

successful if the patient still experiences pain two weeks after

the procedure.

4. Two weeks later, on February 28, Patient K. D.

presented for a left - side lumbar rhizotomy, which Respondent was

to perform. Immediately prior to the surgery on February 28,

while Patient K. D. was in pre - op, Respondent performed a

physical examination and observed that Patient K. D. indicated

pain on the right side. In response to questioning, Patient

K. D. confirmed that her right side was more painful than her

left side. Respondent said that he would therefore perform a

right - side lumbar rhizotomy. Patient K. D. did not disagree or

object, but consented to the procedure -- in the presence of two

nurses, as well as Respondent.

5. Immediately after the ir pre - op discussion, Patient K.

D. was administered Versed, which produces an effect of amnesia.

To some extent, this drug may cause some retrograde amnesia, so

that Patient K. D. might not recall events immediately preceding

the administration of the drug, such as her physical examination

and conversation with Respondent in pre - op.

6. Respondent performed a right - side lumbar rhizotomy

without incident. However, immediately after the procedure,

Patient K. D. said that she also suffered left - side pain and

questioned why Respondent had performed the procedure on her

right side. When Patient K. D. complained that tra nsportation

problems would make it hard for her to re - schedule a left - side

procedure, Respondent performed a left - side procedure, on the

same day, and he completed this procedure also without incident.

7. Prior to the February 14 and 28 procedures, Patien t

K. D. signed consent forms. The consent form for the February

14 procedure identifies a right - side procedure, and the consent

form (actually, there are two identical forms) for the February

28 procedure identifies a left - side procedure. The forms state :

It has been explained to me that during the

course of an operation, unforeseen

conditions may be revealed that necessitate

an extensive exchange or change of the

original procedure or different procedures,

and I therefore authorize and require my

physici an or surgeon . . . to perform such

surgical procedures as are necessary and

desirable in the exercise of his and/or

their professional judgement. . . .

8. Petitioner's expert witness opined that a change in

location, even under the above - described circu mstances, "should"

have been documented on a consent form, but later conceded that

this is not strictly necessary. On cross - examination,

Petitioner's expert witness admitted that a patient may give

informed consent verbally or by conduct. Petitioner's ex pert

witness properly discredited Respondent's theory that he had

some form of ongoing consent because the forms bore no

expiration date. However, to the limited extent that

Petitioner's expert witness implied a requirement for written

informed consent, h is opinion is unsupported by Florida law, as

set forth below.

9. In contrast to Petitioner's expert witness,

Respondent's expert witness did not equivocate on the issue of

the required form of informed consent. Relying largely on the

testimony of Patient K. D., Respondent's expert witness

testified that Respondent had obtained the informed consent of

Patient K. D. to perform a second right - side procedure. Aside

from the obvious advantages of a written informed consent,

Respondent's expert witness convinc ingly testified that informed

consent is a state of mind, not a signature on a piece of paper,

and, by this standard, which is consistent with Florida law, as

set forth below, Respondent had Patient K. D.'s informed consent

to perform a second right - side p rocedure on February 28 and thus

had been duly authorized to do so.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569, 120.57(1),

and 456.073(5), Fla. Stat. (2005).

11. Based on the pleadings conta ined in the Administrative

Complaint, Section 456.072(1)(aa), Florida Statutes, prohibits,

in relevant part:

Performing or attempting to perform . . . a

wrong - site procedure . . .. . . .

12. Section 456.072(2), Florida Statutes, authorizes the

Board of Me dicine to impose a range of penalties, including

revocation, for any violation of Section 456.072(1), Florida

Statutes.

13. Section 458.331(1)(p), Florida Statutes, provides that

the Board of Medicine may also discipline a license if the

licensee has performed professional services not duly authorized

by the patient, except as provided by Section 766.103, Florida

Statutes.

14. Section 766.103, Florida Statutes, provides in

relevant part:

(3) No recovery shall be allowed in any

court in this state against any phy sician

licensed under chapter 458, osteopathic

physician licensed under chapter 459,

chiropractic physician licensed under chapter

460, podiatric physician licensed under

chapter 461, or dentist licensed under

chapter 466 in an action brought for

treating, examining, or operating on a

patient without his or her informed consent

when:

(a) 1. The action of the physician,

osteopathic physician, chiropractic

physician, podiatric physician, or dentist in

obtaining the consent of the patient or

another pe rson authorized to give consent for

the patient was in accordance with an

accepted standard of medical practice among

members of the medical profession with

similar training and experience in the same

or similar medical community; and

2. A reaso nable individual, from

the information provided by the physician,

osteopathic physician, chiropractic

physician, podiatric physician, or dentist,

under the circumstances, would have a general

understanding of the procedure, the medically

acceptable alterna tive procedures or

treatments, and the substantial risks and

hazards inherent in the proposed treatment or

procedures, which are recognized among other

physicians, osteopathic physicians,

chiropractic physicians, podiatric

physicians, or dentists in the sa me or

similar community who perform similar

treatments or procedures; or

(b) The patient would reasonably, under

all the surrounding circumstances, have

undergone such treatment or procedure had he

or she been advised by the physician,

osteopathic ph ysician, chiropractic

physician, podiatric physician, or dentist in

accordance with the provisions of paragraph

(a).

(4)(a) A consent which is evidenced in

writing and meets the requirements of

subsection (3) shall, if validly signed by

the patient or a nother authorized person,

raise a rebuttable presumption of a valid

consent.

(b) A valid signature is one which is

given by a person who under all the

surrounding circumstances is mentally and

physically competent to give consent.

15. Petitioner must pr ove the material allegations by

clear and convincing evidence. Department of Banking and

Finance v. Osborne Stern and Company, Inc. , 670 So. 2d 932 (Fla.

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

16. Petitioner has failed to prove that Respo ndent

performed a wrong - site procedure, failed to obtain Patient

K. D.'s informed consent for the February 23 right - side

procedure, or otherwise performed professional services without

the authorization of the patient.

17. The key questions are answered by Se ction 766.103,

Florida Statutes. Section 766.103(3)(a), Florida Statutes, is

satisfied here. After examining Patient K. D. and discussing

her symptoms, Respondent justifiably changed the procedure from

the left - side to the right - side, and Patient K. D. a greed. The

provisions of Section 766.103(4)(a), Florida Statutes, merely

acknowledge the advantage of proceeding with written informed

consent, but do not in any way imply the unavailability in

Florida of informed consent by speech or conduct. Even if

Se ction 766.103(3)(a), Florida Statutes, were unavailable,

Respondent would have been able to proceed under Section

766.103(3)(b), Florida Statutes, because, based on the

circumstances, Patient K. D. would have consented to the change

in sides.

RECOMMENDAT ION

It is

RECOMMENDED that Petitioner dismiss the Administrative

Complaint, as amended, against Respondent.

DONE AND ENTERED this 21st day of November, 2005, in

Tallahassee, Leon County, Florida.

S

_ __________________________________

ROBERT E. MEALE

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 21st day of November, 2005.

COPIES FURNISHED:

Larry McPherson, Executive Director

Board of Medicine

De partment of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Timothy M. Cerio, General Counsel

Department of Health

4052 Bald Cypr ess Way, Bin A02

Tallahassee, Florida 32399 - 1701

Irving Levine

Assistant General Counsel

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Dennis A. Vandenberg

Peterson Bernard

1550 Southern Boulevard

West Palm Beach, Florida 33406

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 must be filed with the agency that

will issue the final order in this case.