06-000184PL Department Of Health, Board Of Medicine vs. David Andrew Nicker, M.D. Status: Closed Recommended Order on Monday, June 12, 2006.

Summary: Petitioner failed to establish that Respondent fell below the standard of care when he intubated the patient.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE , )

)

Petitioner , )

)

vs. ) Case No. 06 - 0184PL

)

DAVID ANDREW NICKER, M.D. , )

)

Respondent . )

)

RECOMMEND ED ORDER

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

on March 13 and 14 , 2006, in Tampa , Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Ephraim D. Livingston, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Rafael E. Martinez , Esquire

Leslie Moore, Esquire

McEwan, Martinez & Dukes, P.A.

108 East Central Boulevard

Post Office Box 753

Orlando, Florida 32802 - 0753

STATEMENT OF THE ISSUE S

The issues in this case are whether Respondent violated

Subsectio n 458.331(1)(t), Florida Statutes (2003), 1 and, if so,

what discipline should be imposed.

PRELIMINARY STATEMENT

On November 23, 2004, Petitioner, Department of Health,

Board of Medicine (Department), filed an Administrative

Complaint against Respondent, Da vid Andrew Nicker, M.D.

(Dr. Nicker), alleging that Dr. Nicker violated Subsection

458.331(1)(t), Florida Statutes. Dr. Nicker requested an

administrative hearing, and the case was forwarded to the

Division of Administrative Hearings on January 17, 2006, for

assignment of an administrative law judge to conduct the final

hearing.

By order dated March 2, 2006, official recognition was

taken of Sections 20.43, 458.331, and 766.102, Florida Statutes,

and Florida Administrative Code Rule 64B8 - 8.001.

The partie s filed a Pre - Hearing Statement and agreed to

certain facts contained in Section E of the Pre - hearing

Statement. To the extent relevant, those facts have been

incorporated into this Recommended Order.

At the final hearing, the Department called the follow ing

witnesses: J.H.F., E.J.H., and James W. Meade, M.D.

Petitioner's Exhibits 1, 2, and 4 were admitted in evidence.

Dr. Nicker testified in his own behalf at the final hearing and

called the following witnesses: Colin J. Condron, M.D.; Holly

Beth Yerg er, P.A.; Steven Earl Sywenki, R.N.; and Jay L.

Falk, M.D. Respondent's Ex h ibits 1, 2, and 3 were admitted in

evidence.

The three - volume Transcript of the final hearing was filed

on April 10, 2006. The parties timely filed their proposed

recommended ord ers, which have been considered in the rendering

of the Recommended Order.

FINDINGS OF FACT

1. At all times material to this proceeding, Dr. Nicker

was a licensed physician within the State of Florida, having

been issued license number ME 73441. Dr. Nic ker is board -

certified in emergency medicine.

2. T.F. was an 11 - year - old, developmentally delayed

autistic child, who appeared "older, adult size for age 11

years. " He did not communicate verbally, but could communicate

using an electronic computer and a picture exchange system.

3. On the evening of January 10, 2004, T.F. ate some

pizza, and subsequently threw up three or four times. His

mother, J.F., slept with him that night in case he got sick

during the night.

4. The next morning T.F. awoke con gested with a lot of

mucous and appeared to have a cold. T.F. did not have the

ability to blow his nose; therefore, his mother had to suction

the mucous from his nasal passages. He did not eat anything

during the day, but drank liquids. His condition wo rsened as

the day went on. His mother took his temperature with an ear

thermometer, and his temperature registered 101 degrees, which

wa s the highest temperature the thermometer would register.

5. During the night of January 11, 2004, and into the

earl y morning of January 12, 2004, T.F.'s condition

deteriorated. He had trouble breathing and felt warmer to the

touch, although the ear thermometer registered only a

temperature of 101 degrees.

6. Around 2 a.m. on January 12, 2004, J.F. awoke T.F.'s

sist er and told her they needed to take T.F. to the hospital.

T.F.'s mother and sister got him into the car with the intention

of taking him to All Children's Hospital. Because of T.F.'s

deteriorating condition, J.F. decided to take him to Morton

Mease Plant , a nearby hospital.

7. When they arrived at the hospital at 2:37 a.m., T.F.

was seen by a triage nurse. J.F. told the nurse that T.F. had

been throwing up on Saturday night, woke up congested on Sunday,

continued to have a temperature of 101 degrees, an d experienced

heavy breathing. The initial examination by the triage nurse

noted that T.F.'s blood pressure was 103/62; his pulse rate was

166; his respiration was 40; and he had an oxygen saturation of

93 percent. The triage nurse did not document takin g T.F.'s

temperature.

8. After the triage nurse did an initial examination, T.F.

was examined at 3 a.m. by Holly Yeager, a physician's assistant.

J.F. again relayed T.F.'s history of vomiting, fever,

congestion, and heavy breathing. Ms. Yeager 's examina tion

revealed that T.F. had a purulent nasal drainage, had dried

emesis on his lips, tongue, and pajama shirt, and had an

increased temperature to the skin.

9. Ms. Yeager noted that T.F.'s temperature had not been

taken by the triage nurse and ordered a r ectal temperature to be

taken. Ms. Yeager also ordered a 5 mg neb treatment with deep

nasal suctioning, an IV at 500 cc bolus, CBC, blood culture,

basic metabolic panel, and a chest x - ray.

10. A chest x - ray was taken of T.F. to determine if he had

acute aspiration pneumonia. The x - ray was negative.

11. Dr. Nicker saw T.F. for the first time at 3:15 a.m.

Immediately prior to treating T.F., Dr. Nicker had been treating

a critically ill patient who required airway management and

resuscitat ive measures. W hen T.F. came to the Morton Plant

Mease emergency room, there was one physician, Dr. Nicker, and

one physician's assistant, Ms. Yeager, on staff to cover the

patients being treated in the emergency room.

12. Dr. Nicker ordered 40 percent oxygen to be

adm inistered to T.F. Because T.F. would not keep the oxygen

mask on his face, his mother held the oxygen mask in front of

his face. Dr. Nicker ordered that an arterial blood gas (ABG)

be taken. In addition to ordering oxygen, Dr. Nicker ordered

broad spect rum antibiotics to be administered to T.F.

13. During his initial examination of T.F., Dr. Nicker did

not look at T.F.'s medical chart, including the assessment form

completed by the triage nurse. Dr. Nicker did examine T.F. from

head to toe. Dr. Nicker was unaware that T.F.'s temperature had

not been taken; however he did lay hands on T.F. and did not

feel that T.F. had a significant temperature at that time.

Based on his experience as a physician, Dr. Nicker is able to

tell by feeling a patient whethe r the patient has a significant

temperature.

14. After making his initial examination and giving orders

for oxygen, antibiotics, and further tests, Dr. Nicker left T.F.

to attend to other patients in the emergency room . Dr. Nicker

had approximately 15 patients in the emergency room during the

time T.F. was being treated at Morton Plant Mease.

15. After Dr. Nicker left T.F. to attend other patients,

the nurses and physician assistant attempted to insert an IV

line into T.F., and the respiratory therapis t attempted to get

an ABG. T.F. was combative and uncooperative with t he me dical

staff in their attempts to treat T.F. An IV was started, but

t he respiratory therapist was unable to get an ABG.

16. Dr. Nicker returned to T.F.'s bedside at 3:53 a.m.

Bec ause the respiratory therapist was unable to get an ABG,

Dr. Nicker drew blood from T.F.'s femoral artery to get the ABG.

At the time the ABG was taken, T.F. was essentially on room air

because t he oxygen mask was not on T.F.'s face for any prolonged

peri od of time. The ABG revealed that the oxygen saturation had

dropped to 89 percent. Dr. Nicker ordered 100 percent oxygen to

be administered to T.F. using a bigger mask.

17. Dr. Nicker left the treating room and returned at

4:15 a.m. At this time, T.F.' s condition had worsened. He was

lethargic; his breathing was slower; and he was no longer making

eye contact with family members . Because of the deterioration

in his condition, ventilation and oxygenation became a primary

concern. Dr. Nicker made the d ecision to intubate T.F. so that

he could be placed on a ventilator.

18. T.F. was transferred to a larger room for the

intubation to accommodate the size of the ventilator. At

4:30 a.m., T.F. was given intravenously a sedative, Versed.

Dr. Nicker was ab le to intubate T.F. successfully, which was

confirmed by an x - ray.

19. At 4:45 a.m., T.F.'s vital signs were taken. T.F.'s

temperature was 108 degrees, and his blood pressure had dropped

to 65/38. T.F. was given Tylenol rectally at 4:50 a.m., and ice

w a s applied to T.F.'s groin and h is axilla .

20. The dramatic fall in blood pressure, which T.F.

experienced after the intubation, can occur when a patient is

dehydrated and has a low intravascular volume. The resulting

hypotension is life threatening and m ust be dealt with by

delivering more intravenous fluid to the patient. In order to

get more fluids in T.F., Dr. Nicker attempted to get an

intravenous central line established. His attempt to get a

right intravenous central line established was unsuccess ful;

however, he was successful in establishing a left central line

at 5:15 a.m. After the central line was established and fluids

were administered intravenously, T.F.'s blood pressure steadily

increased.

2 1 . At 6 a.m., T.F.'s temperature was taken, and his fever

had dropped to 105 degrees. By 6:50 a.m., his temperature had

dropped to 103.8 degrees.

2 2 . T.F. was transferred to the intensive care unit at All

Chi ldren's Hospital via helicopter at 7:15 a.m. T.F. died on

January 16, 2004, from influenza A and acute renal failure.

2 3 . The Department contends that Dr. Nicker did not meet

the standard of care required of similar physicians under

similar conditions and circumstances. The Department's expert

witness, Dr. James Meade, opined that Dr. Nicker sh ould have

sedate d T.F. intramuscularly and intubated T.F. earlier than

Dr. Nicker did. Dr. Meade suggested that the drug Droperidol

should have been used to sedate T.F. so that IV's could be

inserted and tests such as ABG could be done. Droperidol

carrie s a black box warning from the Food and Drug

Administration. Several hospitals remove d t he drug from their

formulary . The drug's manufacturer indicated that the drug

should be used and reserved only for use and treatment of

patients who fail to show an a cceptable response to other

adequate treatments either because of insufficient effectiveness

or ability to achieve an effective dose due to intolerable

adverse effects from those other drugs.

2 4 . Sedation of a patient relaxes the patient's gag reflex

th at protects his airway. In the case of T.F, who had a history

of repeated vomiting and who had dried emesis on his clothing

and around his mouth, sedating him would have rob bed him of his

ability to protect his airway and set him up for aspiration

pneumon ia. Additionally, any sedation would have been better if

done intravenously rather than intramuscularly so that the

amount of sedation could be monitored. Contrary to the opinion

of Dr. Meade, intramuscular sedation was contraindicated.

2 5 . Intubation c arries great risks such as decrease in

blood pressure; placing the tube in the esophagus; and causing

trauma or injury to the vocal cords resulting in bleeding and

loss of the airway. Based on the ABG results and given the

risks associated with intubation , it was appropriate for

Dr. Nicker to give additional oxygen after the first ABG rather

than intubate T.F. at that time. Intubation was not indicated

until T.F.'s mental status changed at 4:15 a.m. and he was

fatiguing in terms of his respiratory efforts .

2 6 . The Department contends that Dr. Nicker failed to meet

the standard of care for similar physicians in similar

circumstances and conditions because he failed to note that

T.F.'s temperature had not been recorded until two hours after

T.F. had arrive d at the hospital. Although, Dr. Nicker did not

look at the triage nurse's assessment, he did feel T.F. when he

examined him and determined that T.F.'s temperature was not

significantly elevated. Thus, he made his own assessment of

T.F.'s temperature bas ed on his medical training and experience.

CONCLUSIONS OF LAW

2 7 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2005).

2 8 . The Department has t he burden to establish the

allegations in the Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

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

2 9 . The Department has alleged that Dr. Nicker violated

Subs ection 458.331(1)(t), Florida Statutes, which provides that

a physician may be discipline d for the following actions:

Gross or repeated malpractice or th e

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 this

paragraph. As used in this paragraph,

"repeated malpractice" incl udes, 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 $50,000 each to the claimant

in judgment or settlement and which

incidents involved negligent cond uct by the

physician. As used in this paragraph,

"gross malpractice" of the "failure to

practice medicine with that level of care,

skill, and treatment which is recognized

by a reasonable prudent similar physician

as being acceptable under similar condi tions

and circumstances," shall not be construed

so as to require that a physician be

incompetent to practice medicine in order

to be disciplined pursuant to this

paragraph. . . .

30 . The Department alleged that Dr. Nicker violated

Subsection 458.331 (1)(t), Florida Statutes, as follows:

a. Failing to intubate Patient T.F. in a

timely manner or calling anesthesiology to

intramuscularly sedate Patient T.F. prior to

intubating him;

b. Failing to realize that a rectal

temperature had not been performed on

Patient T.F. until 2 hours after he arrived

in the emergency room;

c. Failing to adequately assess Patient

T.F.'s symptoms in that he did not note the

absence of a temperature and his respiratory

distress.

3 1 . The Department has failed to establish b y clear and

convincing evidence that Dr. Nicker violated Subsection

458.331(1)(t), Florida Statutes. Given the risk involved with

intubating a patient, i t was appropriate for Dr. Nicker to

attempt to improve T.F.'s oxygenation level by administering

more oxygen while T.F. still had control of his airway and was

maintaining eye contact with his family. Dr. Nicker

appropriately intubated T.F. when T.F.'s mental status changed

and it appeared that he was not able to protect his airway.

3 2 . Dr. Nicker approp riately waited to sedate T.F. until

an IV line could be established so that the sedative could be

administered intravenously. It would not be appropriate , as

suggested by the Department's expert, to administer a drug

intramuscularly which had a black box warning by the FDA and had

been banned by several hospitals.

3 3 . Although Dr. Nicker was unaware that T.F.'s

temperature had not been taken when he initially examined him,

Dr. Nicker did assess T.F.'s temperature by feeling the patient.

Based on his expe rience and training, he determined that T.F.

did not have a significantly elevated temperature at that time.

Based on the circumstances of this case, Dr. Nicker 's failure to

note that T.F.'s temperature had not been taken did not fall

below the standard o f care required for a similar physician in

similar conditions and circumstances.

3 4 . Dr. Nicker did adequately assess T.F.'s symptoms.

When he placed his hands on T.F., he did not note a

significantly elevated temperature. He tried less intrusive

metho ds of raising T.F.'s oxygenation level as long as T.F. was

protecting his airway and was alert to his family. Once T.F.'s

mental status changed and he appeared to be unable to protect

his airway, Dr. Nicker took appropriate measures by intubating

T.F.

REC OMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding that

Dr. Nicker did not violate Subsection 458.331(1)(t), Florida

Statutes, and dismissing the Administrative Complaint.

D ONE AND ENTER ED this 12 t h day of June , 2006 , in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Fl orida 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 12 t h day of June , 2006 .

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes shall be to the 2003 version .

COPIES FURNISHED :

Rafael E. Martinez , Esquire

Leslie Moore, Esquire

McEwan, Martinez & Dukes, P.A.

108 East Central Boulevard

Post Office Box 753

Orlando, Florida 32802 - 0753

Ephraim D. Livingston, Esqui re

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

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 Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Dr. M. Rony Fran ç ois, Secretary

Department of Health

4052 Bald Cypress Way, Bin A0 0

Tallahassee, Florida 32399 - 1701

Larry McPherson, Executive Director

Board of Medicine

Department of Heal th

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 shou ld be filed with the agency that

will issue the Final Order in this case.