06-003357PL Department Of Health, Board Of Medicine vs. William Paul Hopkins, M.D. Status: Closed Recommended Order on Tuesday, May 1, 2007.

Summary: Respondent failed to refer the patient immediately.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, ) )

BOARD OF MEDICINE, )

)

Petitioner, ) Case No. 06-3357PL

)

vs. )

)

WILLIAM PAUL HOPKINS, M.D., )

)

Respondent. )

RECOMMENDED ORDER

Notice was provided and on March 6, 2007, a formal hearing

was held in this case. Authority for conducting the hearing is

set forth in Sections 120.569 and 120.57(1), Florida Statutes

(2006). The hearing location was the Citrus County Courthouse,

110 North Apopka Avenue, Inverness, Florida. The hearing was

held before Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Ephraim D. Livingston, Esquire

Dory Penton, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

For Respondent: Christopher J. Schulte, Esquire

Burton, Schulte, Weekley,

Hoeler & Beytin, P.A.

100 South Ashley Drive, Suite 600

Post Office Box 1772

Tampa, Florida 33602-1772

STATEMENT OF THE ISSUE

Should discipline be imposed against Respondent's license

to practice medicine for violation of Section 458.331(1)(t),

Florida Statutes (2003)?

PRELIMINARY STATEMENT

On April 25, 2006, in Case No. 2005-06808 before the Board

of Medicine (the Board), the Department of Health (DOH) brought

an Administrative Complaint against Respondent accusing him of a

violation of the statute referred to in the Statement of the

Issue. The Administrative Complaint was premised upon the

following allegations:

(4) On or about May 18, 2004, Patient RD a

seventy-three year old male presented to

Citrus Memorial hospital, family care center

in Lecanto, Florida, with a chief complaint

of constipation and last major bowel

movement on May 16, 2004.

(5) On or about May 18, 2004, Patient RD

was physically examined and the examination

revealed normal vital signs, moderately

distended abdomen and slowed, but present

bowel sounds in all for (sic) quadrants, no

masses, and a nontender abdomen.

(6) On or about May 18, 2004, Respondent

ordered an abdominal flat place and upright

x-ray which showed "obstruction with stool,

air fluid levels."

(7) On or about May 18, 2004, Patient RD's

diagnosis was constipation with partial

bowel obstruction.

(8) On or about May 18, 2004, the x-rays

were interpreted by a radiologist with an

impression of marked dilatation of small

bowel, likely due to small bowel

obstruction.

(9) On May 18, 2004, Patient RD was

instructed for treatment of his diagnosis to

take Miralax powder as needed and milk of

magnesia in between, keep fluid intake up

and go to ER (emergency room) if pain

increases in abdomen fever or vomiting

develop.

(10) Respondent prescribed Miralax to

Patient RD, Miralax is counter-indicated for

a patient with a diagnosis of partial small

bowel obstruction.

(11) Respondent failed to refer Patient RD

to a hospital for immediate further

evaluation of small bowel obstruction.

(12) Respondent failed to perform a digital

rectal examination in a patient presenting

with a possible bowel obstruction.

(13) Respondent failed to test the stool

for occult blood.

As a consequence Respondent is alleged to have violated

Section 458.331(1)(t), Florida Statutes (2003) in 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 in one

or more of the following ways:

a. prescribing Miralax to Patient R.D., a

patient with a diagnosis of partial small

bowel obstruction.

b. failing to refer Patient RD to a

hospital for immediate further evaluation of

small bowel obstruction.

c. failing to perform a digital rectal

examination in a patient presenting with a

possible bowel obstruction.

d. failing to test Patient RD's stool for

occult blood.

Respondent was provided several options in addressing the

Administrative Complaint. He chose the third option. That

option was to dispute the allegations of fact contained in the

Administrative Complaint. Through that option as evidenced in

the form provided to him, Respondent asked that he be heard in

accordance with Sections 120.569 and 120.57(1), Florida

Statutes, by an administrative law judge to resolve the dispute.

He disputed all paragraphs within the Administrative Complaint.

On September 6, 2006, DOH forwarded the case to the

Division of Administrative Hearings (DOAH) to assign an

administrative law judge to conduct a hearing in accordance with

Respondent's request for formal hearing. The assignment was

made by Robert S. Cohen, Director and Chief Judge of DOAH in

reference to DOAH Case No. 06-3357PL. The assignment was to the

present administrative law judge.

After two continuances, the hearing took place on March 6,

2007.

Prior to the hearing, Petitioner filed a Motion in Limine

concerning the prospective testimony of Angela Gaglione, now

Angela Failla, and Respondent's Exhibit numbered 6. The Motion

was addressed at hearing, and the outcome is explained in the

hearing transcript.

James Schaus, M.D., testified for Petitioner. Petitioner's

Exhibits numbered 1 through 4 were admitted. Respondent

presented Angela Failla as his witness. Respondent testified in

his own behalf. At hearing, Respondent's Exhibits numbered 3

and 4 were admitted. Respondent's Exhibit numbered 3 is the

deposition transcript of David A. Weiland, Jr., M.D.

Respondent's Exhibit numbered 6 was denied admission. Ruling

was reserved on the admission of Respondent's Exhibits numbered

5A through 5D, subject to Respondent's opportunity post-hearing

to undertake necessary arrangements to establish their

authenticity. Consistent with those opportunities, Respondent

took the depositions of Lisa Montalto and Share Burgard. Their

depositions were transcribed and filed. The depositions were

reviewed. After review, Respondent's Exhibits numbered 5A

through 5D are admitted within the limits described in the

hearing transcript. In addition to the parties exhibits

admitted, the deposition transcripts of the witnesses Montalto

and Burgard are included with this record, together with

Respondent's Exhibit numbered 6 which was denied admission.

Petitioner filed a Motion for Official Recognition of

Section 458.331(1)(t), Florida Statutes (2003), and Florida

Administrative Code Rule 64B8-8.001. At hearing, the motion was

granted as reflected in the hearing transcript.

Consistent with the Order of Pre-hearing Instructions, the

parties filed a Joint Pre-hearing Stipulation. Within the

Stipulation, the parties have set out facts upon which they

agree. The factual stipulations are reflected in the findings

of fact to this Recommended Order.

On March 28, 2007, the hearing transcript was filed. On

April 6, 2007, Respondent filed a Proposed Recommended Order.

On April 9, 2007, Petitioner filed a Proposed Recommended Order.

The Proposed Recommended Orders have been considered in

preparing the Recommended Order.

FINDINGS OF FACT

Stipulated Facts

1. Petitioner is the state department charged with

regulating the practice of medicine pursuant to Section 20.43,

Florida Statutes; Chapter 456, Florida Statutes; and Chapter

458, Florida Statutes.

2. Respondent was (is) a licensed physician within the

state of Florida, having been issued License No. 84357.

3. At all times material to this complaint Respondent's

address of record was 68 East Ludlow Place, Citrus Springs,

Florida 34434.

4. On or about May 18, 2004, Patient R.D., a 73-year-old

male, presented to Citrus Memorial Hospital, Family Care Center

in Lecanto, Florida.

5. Patient R.D.'s chief complaint on May 18, 2004, was of

constipation and last major bowel movement on May 16, 2004.

6. On or about May 18, 2004, Patient R.D. was physically

examined, and the examination revealed normal vital signs,

moderately distended abdomen with slowed, but present bowel

sounds in all four quadrants, no masses, and a nontender

abdomen.

7. On or about May 18, 2004, Respondent ordered an

abdominal flat plate and upright X-ray, which showed

"obstruction with stool, air fluid levels."

8. On or about May 18, 2004, Patient R.D.'s diagnosis was

constipation with partial bowel obstruction.

9. On or about May 18, 2004, the X-rays were interpreted

by a radiologist with an impression of marked dilatation of

small bowel, likely due to small bowel obstruction.

10. On or about May 18, 2004, Patient R.D. was instructed

for treatment of his diagnosis to take Miralax powder as needed

and milk of magnesia in between, keep fluid intake up and go to

ER (emergency room) if pain increased in the abdomen or fever or

vomiting develop.

11. Respondent prescribed Miralax to Patient R.D.

12. Section 458.331(1)(t), Florida Statutes (2003), sets

forth grounds for disciplinary action by the Board of Medicine

for 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.

Respondent's Care of Patient R.D.

13. Respondent received his Doctor of Medicine Degree from

George Washington University. He became board certified in

family practice in 1980 and was recertified in 1987, 1994, and

2001.

14. Respondent practices at the Allen Ridge Family Care

Center, an urgent care facility that is part of Citrus Memorial

Hospital.

15. On May 18, 2004, a history was taken from Patient R.D.

The patient complained of constant mild abdominal pain. The

patient reported that he had not had a stool for two days, that

his last bowel movement (bm) had occurred two days earlier. The

patient was complaining that he was constipated and that his

stomach felt full.

16. When Respondent saw Patient R.D., it was their first

encounter. Respondent examined the patient. When Respondent

asked the patient if he had blood or black stool, Patient R.D.

denied either condition. Having a complaint of GI problems,

Respondent was trying to ascertain whether the patient had

internal bleeding when inquiring about the condition of the

stool.

17. Respondent, when recording information on

Patient R.D.'s chart, noted that the distention and constipation

were mild and constant. Respondent inquired of the patient

concerning diarrhea, chills, vomiting, and issues with his

appetite and noted that the patient was not suffering from any

of those symptoms, other than to note that the patient's

appetite was slightly down. The fluid intake was noted as being

adequate for purposes of hydration. A nurse practitioner had

noted the nature of the medications the patient was taking.

Respondent did discuss those medications with the patient.

Respondent was aware of the patient's vital signs and found them

to be normal, as taken by a nurse.

18. Respondent noted that the patient was in "no apparent

distress," that is, he did not look sick by appearance. Instead

the patient appeared well.

19. Respondent noted in the chart that the bowel sounds

were slowed but present in all four quadrants. Respondent

wanted to determine whether the patient had absent bowel sounds

or very rapid sounds that would have alerted Respondent to

difficulties experienced by the patient. Absent bowel sounds

represent some inflammatory process in the abdominal cavity such

as appendicitis or a kidney stone, whereas rapid bowel signs

signify a possible obstruction.

20. Respondent noted "negative bruits," referring to the

use of the stethoscope on the abdomen to listen for arterial

sounds.

21. Respondent found the liver and spleen to be normal

upon examination. There was no hernia. There was "no CVA

pain," referring to pain in the back that would be accompanied

by flank pain.

22. When Respondent palpitated the patient's abdomen light

and deep, the patient reported that he experienced no pain. He

responded by saying that he "feels full," which Respondent

understood was in association with moderate distension.

23. Before the visit, Respondent had experience with the

type of patient represented by Patient R.D. Respondent has

treated patients over time who have small bowel obstructions and

who have constipation.

24. Respondent's working differential diagnosis was that

the patient was probably constipated, as had been reported.

Respondent decided to have an X-ray made of the patient's

abdomen. The decision to order an X-ray was in view of the

distension. Respondent reviewed the results of the X-rays. The

X-ray series were both flat and upright. The flat X-ray refers

to lying flat (supine). That approach was requested in that

Respondent was trying to determine how much stool and air were

in the abdomen. Respondent was using the results of the X-ray

to try to determine if the patient had a potential for

obstruction.

25. Respondent's impression of the results of the X-ray

was that the rectum area showed stool in it. There was some

indication of stool in the colon. Respondent was unsure as to

whether there was stool in the small bowel. There were air

fluid bubbles in an area that probably reflected the small

bowel.

26. Ultimately Respondent reached a diagnosis of

constipation with partial bowel obstruction.

27. Respondent, when he looked at the X-rays, went back to

discuss the findings with the patient and said:

Your x-ray does not look good. It has air

fluid levels. You could have a problem

here. It does not match up with your exam

and your vital signs. You got a bad x-ray.

The response by the patient was something to the effect that he

did not care if he had a bad X-ray. He was constipated and he

wanted something for his constipation. Respondent elected to

give the Petitioner Miralax powder and give him precautions if

anything developed such as abdominal pain, fever, or vomiting

that was not in evidence at the moment, that the patient should

go to the emergency room.

28. Based upon the X-ray results, Respondent noted in his

testimony that the patient:

. . . wasn't out of the woods as far as I

was concerned yet. Our standard procedure

on a patient like this, is you get these air

. . . you get something like that back . . .

. probably, went in and recommended that he

go to the emergency room.

29. Respondent goes on to say in his testimony:

. . . now if everything looked o.k. on this,

this guy would have his Miralax

prescription, be out of the door, and I

wouldn't even see him if he had a normal x-

ray. I went in the room and I talked to the

guy and I said, look you got this and it

could be obstruction, and he goes, 'what's

obstruction' I said, well, just what we've

been talking about this morning, blah, blah,

blah. Pain, increase, bowel sounds,

vomiting, 'Do I have any of that?'

30. Respondent then describes the verbal exchange between

the patient and Respondent as to the severity of the situation,

and Respondent says in his testimony ". . . he won."

Respondent indicated that the patient convinced Respondent that

he was not ill.

31. In summary, the Respondent told the patient that he

could be in trouble or he might be fine.

32. Respondent was also aware of other cases as he

describes:

. . . a certain percentage of people

admitted for partial bowel obstruction like

this that go through the hospital and has

got to be a significant that go home the

next day. They poop and go home the next

day, 30 or 40 percent, o.k. So this guy

could be that guy easily because he had

symptoms so -- and he is not going to the ER

because he waited two hours, three hours,

whatever it was. I've seen nursing home

patient's x-rays twice as bad as that and

they are constipated and they are not in

pain, so I had experience with these

patients that some of them are not in

trouble. I told this guy, you could be in

trouble and this is -- and he said, 'I just

need something for my constipation'.

33. Respondent recognizes that the patient was coming to

him for medical care and that he was obligated to determine if

the patient was ill and that he could not rely completely upon

someone else's ability to convince him of the circumstances.

Respondent did not find the patient to look ill and indicated

through his testimony that the patient ". . . was not in any

trouble." Respondent did not find the patient in acute distress

at the time the patient was seen.

34. Respondent believes that had the patient been

suffering small bowel obstruction when he was seen, that instead

of moderate distension there would have been severe distension,

and instead of the bowel sounds slow and present, they would

have either been absent or increased. There would have been

tenderness in the abdomen. There may have been a mass where

none was found on examination. There was no finding of colicky

pain, which Respondent considers to be the gold standard of

bowel obstruction, crampy abdominal pain in severe waves that

"double you over."

35. Respondent called the patient's condition constipation

with partial obstruction because of the findings in the X-ray.

Respondent recognizes that there was some obstruction. He

attributed the bowel obstruction to constipation caused by

feces.

36. However, in making his choices for care Respondent

recognizes that distension is a symptom of obstruction. The

inability to defecate is a symptom of obstruction.

37. Respondent did not rely upon the radiologist's reading

and report concerning the X-rays when making his choices for

Patient R.D.'s care because he did not have the report at that

time.

38. Respondent recognized the Physician's Desk Reference

(PDR) available on May 18, 2004, as a reference source and in

its discussion of Miralax was an authoritative source and that

according to the PDR, it considered Miralax as contraindicated

for patients who are known or suspected of having small bowel

obstructions.

Expert Opinion

39. Dr. James Schaus is licensed to practice medicine in

Florida and board certified in family practice. He was offered

as an expert to express an opinion concerning Respondent's care

provided Patient R.D. on May 18, 2004. To prepare him for that

assignment he reviewed investigative materials from the

Department, Respondent's records and other available records

that pertain to Patient R.D.'s care. When asked to express an

opinion concerning whether Respondent met the applicable

standards of care as defined by Florida Statutes in the

examination, diagnosis and treatment of Patient R.D., Dr. Schaus

expressed the opinion that Respondent:

. . . deviated from the standard of care in

this case by failing to refer the patient to

a hospital for immediate further evaluation

of the small bowel as indicated on the

abdominal x-ray and the physical examination

finding of a distension. The abdominal x-

ray revealed multiple air and fluid filled

loops in the small bowel which are

marketedly dilated and associated small

bowel air fluid on upright films. A small

amount of air, stool, within colon,

impression marked dilation of small bowel

likely due to small bowel obstruction.

40. Dr. Schaus' view of the definition of "standard of

care," is the "failure to practice medicine at a level of care,

skill, and treatment which are [sic] recognized by a reasonably

prudent similar acting physician as being acceptable under

similar conditions and circumstances."

41. Dr. Schaus went on to state the opinion:

I believe that these x-ray findings taken

together with the fact that the patient was

distended on the physical exam and

complained of some pain with the distension

of abdominal wall obligated Dr. Hopkins for

immediate further hospital evaluation of

this patient. I also believe that

Dr. Hopkins deviated from the standard of

care by prescribing Miralax to the patient

who had the diagnosis of partial small

obstruction.

42. In addition to expressing the opinion that Respondent

should have arranged for immediate hospitalization of the

patient diagnosed with partial small bowel obstruction, and the

problem with Miralax, Dr. Schaus expressed the opinion that

there was a deviation from the standard of care for the failure

to do a digital rectal exam on the patient.

43. Dr. Schaus expressed an opinion that Respondent should

have used a digital rectal exam with this patient to determine

the presence of stool, occult blood, and the condition of the

prostate and to check for rectal or perianal masses. This was

the standard of care that should have been pursued in this case

because the patient complained of constipation and possible

bowel obstruction. If an impaction of stool were found, this

would aid in the diagnosis. It would be properly considered the

cause and would constitute the diagnosis. If the digital rectal

exam revealed gross blood that is important, or occult blood on

the stool sample as detected through a chemical test, those

findings would be helpful as well. Gross blood refers to

visible blood. It is bright red or darker colored. If a mass

is found, it might be an indication of colon cancer.

44. As Dr. Schaus explained, the presence of blood

indicates a more serious problem in that the typical

constipation does not bleed.

45. Dr. Schaus perceived the case involving Patient R.D.

as one in which constipation was the patient's presenting

complaint, setting up the possibility that it was in view of

constipation as such or could be from bowel obstruction.

Dr. Schaus expects the physician to determine that spectrum from

the very benign to the very serious. In his review of the

record, Dr. Schaus notes that the patient had an obstruction as

evidenced by Respondent's diagnosis of obstruction. In

particular he emphasizes the diagnosis of "constipation with

partial bowel obstruction." In his testimony, Dr. Schaus had

referred to small bowel obstruction in his impression of the

findings by Respondent but later acknowledged in his testimony

that Respondent had described a condition which was "partial

bowel obstruction." The obstruction would be found within the

intestinal tract. The nature of the blockage in Dr. Schaus'

opinion can be a partial blockage that would limit the passage

of stool or a complete blockage that can cause more serious

problems.

46. In this case, Dr. Schaus believed that it was clearly

indicated that the patient had a significant bowel obstruction

and that it was a small bowel obstruction and the patient needed

to be admitted to the hospital for further evaluation and

treatment. Dr. Schaus considers the terms "small bowel" to be

synonymous with "small intestine."

47. Dr. Schaus, in expressing his opinion, relies upon

Respondent's interpretation of the X-ray where the Respondent

notes "abdominal flat and upright obstruction with stool, air

fluid levels."

48. Dr. Schaus expressed the opinion that Respondent

should have proceeded logically with the next step after

discovering the small bowel obstruction, which was to make sure

that the patient receives immediate evaluation and treatment in

a hospital setting. The treatment that was given was on an out-

patient basis with instruction for the patient to use Miralax as

needed, with milk of magnesia PRN and to keep his fluid intake

up and to report to the emergency room if he had problems with

abdominal pain, fever, or vomiting. That approach was not

acceptable in Dr. Schaus' opinion given the signs, symptoms, and

radiographic findings in relation to Patient R.D.

49. By choosing to have an abdominal X-ray performed on

Patient R.D., this was an indication to Dr. Schaus that

Respondent believed the patient was experiencing something other

than typical constipation. A patient who has only constipation

would not be subject to an abdominal X-ray.

50. Concerning the prescription of Miralax, Dr. Schaus

noted that this medication is an osmotic agent. It is

considered a fairly powerful laxative. It is designed to cause

the stool to retain water leading to a softer bowel movement,

but it can be a dangerous treatment or contraindicated in a

patient with known or suspected bowel obstruction as mentioned

in the PDR. Dr. Schaus considers the PDR to be authoritative,

and it is a commonly-used reference source for prescribing

medications. When explaining the circumstances concerning

Miralax, Dr. Schaus commented that the absorption of water is

potentially dangerous in the instance where you have a blockage

and you are promoting an expansion in the stool. This patient

had partial bowel obstruction and Respondent prescribed the

medication.

51. Dr. Schaus believed that the patient could have had

the entire spectrum from simple constipation to a complete bowel

obstruction, because a patient may present with a wide variety

of symptoms. In this case, the typical expectation of nausea

and vomiting does not overcome the necessity for having a high-

end suspicion of serious problems in the interest of not

overlooking something.

52. Dr. David A. Weiland, Jr., is licensed to practice

medicine in Florida. He is board certified in internal

medicine. His practice principally involves care of adult

patients. In the past, he has taught family medicine for a

period of almost ten years. Patient R.D. was an elderly

patient, a type of patient seen in family practice.

53. Dr. Weiland occasionally uses the PDR when he is

unaware of a drug, or, if a drug is new, he will look it up in

the PDR in discussing dosage or potential drug interactions. He

sees the PDR as one reference source. It serves as a guide in

prescribing.

54. Dr. Weiland sees the definition of standard of care as

being "that practiced by a prudent clinician in similar

circumstances, with similar findings."

55. In preparing himself to offer testimony, Dr. Weiland

reviewed the Respondent's medical records in association with

Patient R.D. He considered those records to be sufficient for

him to render an opinion about the care provided Patient R.D. by

Respondent.

56. Dr. Weiland in his practice deals with 73-year-old

males, such as Patient R.D. He deals with males who have

constipation. Dr. Weiland has dealt with patients with

distention of the abdomen.

57. At present, Dr. Weiland's predominant practice is in

hospice care. Many of his patients are severely constipated

because of the use of narcotics due to the nature of their

illness in the hospice setting. In deciding the choice of

treatment, the choice of medications for addressing a 73-year-

old with distention and constipation for two days, in his

practice, Dr. Weiland relies on trials and failures or successes

with the use of previous medications and an understanding of the

illness and the degree of illness. He looks for symptoms such

as diarrhea, pain associated with a fecal mass of the rectal

wall, nausea, and vomiting, to guide him in deciding where the

obstruction may be located and how to address the suspected

obstruction.

58. According to Dr. Weiland, you need to encourage the

forward motion of the bowels in elderly patients.

59. Dr. Weiland uses Miralax in his practice. He

describes it as a promotility agent, an agent that allows the

bowel to move more functionally. Miralax is not a drug that

Dr. Weiland routinely prescribes. He just does not use the drug

often, even though he understands it to be a very popular

laxative.

60. Dr. Weiland believes that Miralax is contraindicated

for people with mechanical bowel obstruction, meaning anything

mechanical that causes the bowel to be obstructed which could be

cancer, adhesions, or twisting. The complete bowel obstruction,

regardless of the reason, would be contraindicated for use of

Miralax. With a partial obstruction, it is not clear to him

whether Miralax is contraindicated. If there is stool movement

forward, there is no absolute contraindication. The fact that

the patient was not vomiting was an indication to Dr. Weiland

that the stool was moving forward. With a complete bowel

obstruction, the patient would present nausea and vomiting.

61. Dr. Weiland agrees with the PDR warning that Miralax

is contraindicated for patients who have known or suspected

bowel obstructions. Symptoms suggestive of a bowel obstruction

present would be nausea, vomiting, and abnormal distention and

should be evaluated to rule out the bowel obstruction before

using Miralax therapy, as explained in the PDR. Dr. Weiland

thinks the key elements in the evaluation of those symptoms

relate to nausea and vomiting and a patient with extreme nausea

and vomiting should not be given promotility medication.

Therefore, Dr. Weiland's opinion concerning the use of Miralax

is conditioned upon those symptoms in relation to nausea and

vomiting.

62. Concerning general contraindications for using

medications, Dr. Weiland is familiar with a medication by its

general use, having looked it up on the PDR, and he has used

other texts for medications, pharmacopeia. Dr. Weiland's

response to contraindications depends on whether they are

considered as absolute contraindications or relative

contraindications. He sees the process of determining the use

of the medication as dependent of the patient's underlying

situation and the whole clinical condition.

63. Dr. Weiland is also familiar with milk of magnesia,

which is a chemical laxative.

64. In addressing a patient's condition, Dr. Weiland

treats the symptoms about 95 percent of the time. He uses

additional testing when he confronts something unusual. For

example, severe nausea would lead him to consider the use of

X-rays. Other examples of a patient's circumstances in his

experience that might cause the use of an X-ray or CT scan would

be severe pain that was in association with a history of a

particular malignancy known to cause complete obstruction,

ovarian cancer or prostate cancer. Dr. Weiland would be

impressed with passing significant amounts of blood in the

stool, bloody diarrhea, high fever, nausea, and vomiting.

But most constipation he treats initially, medically, and it

would be necessary that he would have other of the issues that

he described going on before it would warrant further

investigation.

65. Dr. Weiland explains that most treatments of small

bowel obstruction are conservative initially. If the patient

presents with a complete bowel obstruction as evidenced by

nausea, vomiting, that patient is admitted to the hospital and

the management involves bed rest and the provision of IV fluids

to see if the patient resolves the situation. To determine

whether there is a small bowel obstruction, two factors enter

in, according to Dr. Weiland. One is the clinical presentation,

which is abdominal pain, marked distension, nausea, and

vomiting. If one of those factors is not present, Dr. Weiland

does not believe that it would necessarily be considered as

being a small bowel obstruction. He thinks that there is the

possibility of confusing obstruction, in the sense of whether it

is partial or complete. Dr. Weiland understands the differences

between patients and the way they present abdominal pain and

distension could be explained by lots of things, among them

bowel obstruction.

66. Concerning the Patient R.D. in his clinical

presentation, considering the patient's appearance, vital signs,

lack of nausea and vomiting no symptoms, Dr. Weiland would not

have thought he was dealing with a bowel obstruction. The slow

bowel that is described would not lead Dr. Weiland to conclude

otherwise. The Respondent's impression concerning the bowel

obstruction was based on X-ray findings, as Dr. Weiland

perceives the matter. Dr. Weiland would not have gotten those

X-rays. He believes that X-rays can sway you in the wrong

direction and they do not always represent bowel obstruction.

If the patient had presented looking "relatively toxin," Dr.

Weiland would have ordered films, and, when he got those films,

it would have confirmed the condition.

67. Dr. Weiland proceeded with his opinion based upon the

belief that Respondent reached the diagnosis of constipation

with partial bowel obstruction after the X-ray results were

known.

68. Dr. Weiland looked at Patient R.D.'s X-rays. He found

them to be abnormal in that there is evidence of dilation in the

case because of striations, and there are fluid levels. In his

experience, not all fluid levels are obstructions. Sometimes

they are caused by other abnormalities.

69. Dr. Weiland expressed the opinion that the standard of

care for a patient like R.D. is that you look at the patient,

determine the patient's symptoms, and make a clinical

recommendation with a follow-up, and, if the patient systems

worsen, then the patient should go to the emergency room for

care.

70. Dr. Weiland believes that partial small bowel

obstruction could be a life threatening condition. If the

patient were facing a life threatening condition, Dr. Weiland

would hospitalize the patient. Evidence of a life-threatening

condition would be nausea, vomiting, inability to keep down oral

medications, and abnormal signs none of which were evidenced in

this case in the case of R.D.

71. Dr. Weiland considers abdominal distension to be a

non-specific symptom in the patient, as well, abdominal

distension with pain is non-specific.

72. Dr. Weiland would not have sent the patient to the

emergency room on May 18, 2004. The conservative approach was

acceptable. The causation of the problem would often times

resolve on its own. Dr. Weiland refers to the Respondent having

the luxury of looking at the actual patient and the patient's

appearance and the vitals did not appear to be toxic.

Dr. Weiland agrees with the Respondent that if the patient

developed fever or vomiting he should go to the emergency room.

That would be evidence that the patient was experiencing a

complete bowel obstruction.

73. Dr. Weiland's reading of the Respondent's reference to

partial bowel obstruction is that it is based upon information

that Respondent had, including the patient had fecal material,

and that the patient is obstipated. Dr. Weiland believes that

the partial bowel obstruction could be caused by any number of

things, that have been mentioned in his testimony and reflected

in this discussion and that the patient should be treated

conservatively. If the problem resolves then that ends it. If

it does not, then a CAT scan should be considered, and only upon

the condition becoming a bowel obstruction that is complete will

surgery be necessary.

74. Dr. Weiland agrees that the use of a rectal exam can

aid in the determination of the cause of an obstruction.

75. Dr. Weiland expresses a preference to have a rectal

exam documented in the patient chart.

76. Having considered the opinions of the medical experts

in view of the choices Respondent made in caring for Patient

R.D., Dr. Schaus' opinions that Respondent fell below the

standard of care in prescribing Miralax with a diagnosis of

partial obstruction and the opinion by Dr. Schaus that the

Respondent's failure to refer the Patient R.D. to the hospital

for further evaluation of bowel obstruction fell below the

standard of care are accepted. Although the choice to proceed

to the hospital or not would have been the patient's decision,

Respondent in his approach did not create that option. Rather

he deferred to perceived limitations placed on the care by the

patient, commenting that he was there principally for

difficulties with constipation. That response to the patient's

needs was below the standard of care. Respondent left available

the choice to proceed to the emergency room if the patient began

to have abdominal pain, fever or vomiting.

77. Dr. Schaus' opinion that Respondent fell below the

standard of care in not performing a digital rectal examination

on Patient R.D. is accepted when addressing the possibility of a

bowel obstruction.

Mitigation/Aggravation

78. The record does not reveal any adverse outcome

attributed to Respondent's care provided Patient R.D. on May 18,

2004.

79. There is no indication that Respondent has ever been

disciplined in Florida or other jurisdictions while practicing

medicine.

CONCLUSIONS OF LAW

80. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding in accordance with Sections 120.569, 120.57(1) and

456.073(5), Florida Statutes (2006).

81. Respondent is a licensed physician in Florida. He was

issued the license by the Department. The license number is

84357.

82. Through the Administrative Complaint, Respondent has

been accused of the failure to practice medicine with the level

of care, skill and treatment which is recognized by a reasonably

prudent similar physician as being acceptable under similar

conditions and circumstances. The manner of the alleged

violation is that Respondent fell below the standard in:

a. prescribing Miralax to Patient RD, a

patient with a diagnosis of partial small

bowel obstruction.

b. failing to refer Patient RD to a hospital

for immediate further evaluation of small

bowel obstruction.

c. failing to perform a digital rectal

examination in a patient presenting with a

possible bowel obstruction.

d. failing to test Patient RD's stool for

occult blood.

83. As a consequence Respondent is alleged to have

violated Section 458.331(1)(t), Florida Statutes (2003), which

states in pertinent part:

(1) The following acts constitute grounds

for . . . disciplinary action, as specified

in s. 456.072(2):

* * *

(t) . . . 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. . . . As used in this

paragraph, . . . '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,' 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. A recommended order by

an administrative law judge or a final order

of the board finding a violation under this

paragraph shall specify whether the licensee

was found to have committed . . . 'failure

to practice medicine with that level of

care, skill, and treatment which is

recognized as being acceptable under similar

conditions and circumstances,' . . . and any

publication by the board must so specify.

84. This hearing has been held recognizing the procedural

expectations set forth in Section 456.073(5), Florida Statutes

(2006), which states:

(5) A formal hearing before an

administrative law judge from the Division

of Administrative Hearings shall be held

pursuant to chapter 120 if there are any

disputed issues of material fact. The

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, or department when there is no board,

and is not a finding of fact to be

determined by an administrative law judge.

The administrative law judge shall issue a

recommended order pursuant to chapter 120.

. . .

85. In accordance with Section 458.331(1)(t), Florida

Statutes (2003), in this Recommended Order it must be specified

whether Respondent failed to practice medicine with that level

of care, skill and treatment which is recognized as being

acceptable under similar conditions and circumstances.

Ultimately, the Board in its Final Order must determine whether

Respondent violated Section 458.331(1)(t), Florida Statutes

(2003), as to the issue of pursuit of a reasonable standard of

care, a legal conclusion. § 456.073(5), Fla. Stat. (2006). But

not before findings of fact have been made concerning

Respondent's "failure to practice medicine with that level of

care, skill and treatment which is recognized as being

acceptable under similar conditions and circumstances," to

include the underlying facts that relate to patient care and the

opinion of experts on standard of care.

86. This is a disciplinary case, for that reason

Petitioner bears the burden of proof. That proof must be

sufficient to sustain the allegations in the Administrative

Complaint by clear and convincing evidence. See Department of

Banking and Finance, Division of Securities and Investor

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

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

clear and convincing evidence is explained in the case In re:

Davey , 645 So. 2d 398 (Fla. 1994), quoting, with approval from

Slomowitz v. Walker , 429 So. 2d 797 (Fla. 4th DCA 1983).

87. The Administrative Complaint must provide reasonable

notice to Respondent of the conduct that would warrant the

imposition of discipline. See Cottrill v. Department of

Insurance , 685 So. 2d 1371 (Fla. 1st DCA 1996). Respondent was

noticed concerning the care provided Patient R.D. on May 18,

2004. It emphasized the choices made in addressing the care at

that time. The Administrative Complaint does not speak to the

outcomes beyond that date as constituting a substantive

violation.

88. Given the penal nature of this case, Section

458.331(1)(t), Florida Statutes (2003), had been strictly

constructed. Any ambiguity favors the Respondent. See State v.

Pattishall , 99 Fla. 296 and 126 So. 147 (Fla. 1930), and Lester

v. Department of Professional and Occupational Regulation, State

Board of Medical Examiners , 348 So. 2d 923 (Fla. 1st DCA 1977).

89. As referred to previously, the disciplinary response

that may be imposed should Respondent be found in violation of

Section 458.331(1)(t), Florida Statutes (2003), is set forth in

Section 456.072(2), Florida Statutes (2003), which states:

(2) When the board . . . finds any person

guilty . . . of any grounds set forth in the

applicable practice act, . . . it may enter

an order imposing one or more of the

following penalties:

* * *

(b) Suspension or permanent revocation of a

license.

(c) Restriction of practice or license,

including, but not limited to, restricting

the licensee from practicing in certain

settings, restricting the licensee to work

only under designated conditions or in

certain settings, restricting the licensee

from performing or providing designated

clinical and administrative services,

restricting the licensee from practicing more

than a designated number of hours, or any

other restriction found to be necessary for

the protection of the public health, safety,

and welfare.

(d) Imposition of an administrative fine not

to exceed $10,000 for each count or separate

offense. If the violation is for fraud or

making a false or fraudulent representation,

the board, or the department if there is no

board, must impose a fine of $10,000 per

count or offense.

(e) Issuance of a reprimand or letter of

concern.

(f) Placement of the licensee on probation

for a period of time and subject to such

conditions as the board, or the department

when there is no board, may specify. Those

conditions may include, but are not limited

to, requiring the licensee to undergo

treatment, attend continuing education

courses, submit to be reexamined, work under

the supervision of another licensee, or

satisfy any terms which are reasonably

tailored to the violations found.

(g) Corrective action.

(h) Imposition of an administrative fine in

accordance with s. 381.0261 for violations

regarding patient rights.

(i) Refund of fees billed and collected from

the patient or a third party on behalf of the

patient.

(j) Requirement that the practitioner

undergo remedial education.

In determining what action is appropriate,

the board, . . . must first consider what

sanctions are necessary to protect the public

or to compensate the patient. Only after

those sanctions have been imposed may the

disciplining authority consider and include

in the order requirements designed to

rehabilitate the practitioner. All costs

associated with compliance with orders issued

under this subsection are the obligation of

the practitioner.

90. Clear and convincing evidence was presented to show

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. When Respondent prescribed

Miralax for Patient R.D., a patient whom he had diagnosed as

having a partial bowel obstruction, the choice to prescribe that

medication was contraindicated in that patient given the

diagnosis of partial bowel obstruction. In addition,

Patient R.D. was experiencing abdominal pain and had distension.

That was part of Respondent's diagnosis in relation to a problem

of bowel obstruction, another reason not to prescribe Miralax.

Furthermore, Respondent violated the standard of care in not

referring Patient R.D. to the hospital for immediate further

evaluation of the bowel obstruction. Instead, he allowed the

patient to talk him into the position of addressing the

constipation with Miralax and milk of magnesia, without referral

for immediate care at the hospital. Respondent had also

suggested that the patient increase his fluid intake.

Respondent left the possibility for treatment at the emergency

room for another time should the patient experience abdominal

pain, fever, or vomiting.

91. Respondent's suggestion that a certain percentage of

cases such as Patient R.D.'s would resolve itself without the

need for follow-up in the hospital does not justify the failure

to refer the patient at the time the partial bowel obstruction

was found.

92. Respondent violated the standard of care by failing to

perform a digital rectal examination on Patient R.D. as a means

to explain an obstruction.

93. The failure to test Patient R.D. stool for occult

blood would be dependent upon obtaining stool. Respondent

cannot be punished for failing to test a specimen which he did

not have.

94. Otherwise for reasons that have been set out

Respondent violated the standard of care. Thus, he violated

Section 458.331(1)(t), Florida Statutes (2003).

95. Florida Administrative Code Rule 64B8-8.001, sets

forth disciplinary guidelines for license violations. The

suggested range of punishment for the first offense, which this

is, is "from two (2) years probation to revocation or denial and

an administrative fine from $1,000 to $10,000."

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

addresses aggravating and mitigating circumstances in

determining an appropriate punishment where it states:

(3) Aggravating and Mitigating

Circumstances. Based upon consideration of

aggravating and mitigating factors present

in an individual case, the Board may deviate

from the penalties recommended above. The

Board shall consider as aggravating or

mitigating factors the following:

(a) Exposure of patient or the 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 injuring

to the applicant or licensee;

(g) The involvement in any violation of

Section 458.331, F.S., 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.

Patient R.D. was not shown to have been injured by Respondent's

choices in providing treatment. There was some risk of physical

harm that could be severe. That risk was mitigated by the

instructions Respondent gave the patient, should the patient

begin to experience more severe symptoms than he had

demonstrated when seen by Respondent. There were no legal

restraints or constraints placed on Respondent at the time of

the violation. The violation concerns a single count and

several failures in judgment. No indication was given that

Respondent has committed the same offenses at any other time.

Respondent has no disciplinary history. Respondent has not

experienced pecuniary benefit or self-gain as a result of this

violation. None of the violations concern themselves with the

provision of controlled substances by the Respondent.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is

RECOMMENDED:

That a final order be entered finding Respondent in

violation of Section 458.331(1)(t), Florida Statutes (2003),

placing Respondent on a period of probation for one year,

issuing a letter of reprimand and imposing an administrative

fine of $5,000.00.

DONE AND ENTERED this 1st day of May, 2007, in Tallahassee,

Leon County, Florida.

S

___________________________________

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of May, 2007.

COPIES FURNISHED :

Ephraim D. Livingston, Esquire

Dory Penton, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

Christopher J. Schulte, Esquire

Burton, Schulte, Weekley,

Hoeler & Beytin, P.A.

100 South Ashley Drive, Suite 600

Post Office Box 1772

Tampa, Florida 33602-1772

Larry McPherson, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

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 the final order in this case.