06-004288PL Department Of Health, Board Of Medicine vs. James S. Pendergraft, Iv, M.D. Status: Closed DOAH Final Order on Monday, July 8, 2019.

Summary: Respondent performed third trimester abortion without certification from two physicians and in a location other than a hospital.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 06-4288PL

)

JAMES S. PENDERGRAFT, IV, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

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

on June 20 and 21, 2007, in Orlando, Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Irving Levine, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

For Respondent: Kenneth J. Metzger, Esquire

Fowler White Boggs Banker, P.A.

Post Office Box 11240

Tallahassee, Florida 32302

Kathryn L. Kasprzak, Esquire

Fowler White Boggs Banker, P.A.

200 South Orange Avenue, Suite 1950

Orlando, Florida 32801

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated

458.331(1)(t), Florida Statutes (2005), 1 and Subsections

if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On September 7, 2006, the Department of Health (Department)

filed with the Board of Medicine, a six-count Administrative

Complaint against Respondent, James S. Pendergraft, IV, M.D.

(Dr. Pendergraft), alleging that Dr. Pendergraft violated

458.331(1)(t), Florida Statutes, relating to Patient R.W., and

that he violated Subsections 458.331(1)(m) and 458.331(1)(t),

Florida Statutes (2004), relating to Patient T.R.

Dr. Pendergraft requested an administrative hearing, and the

case was forwarded to the Division of Administrative Hearings on

November 3, 2006, for assignment of an Administrative Law Judge

to conduct a final hearing.

The final hearing was scheduled for January 23 through 25,

2007. Several continuances were requested and granted, and the

final hearing was scheduled to commence on June 20, 2007.

The Department filed a Motion for Official Recognition,

which was granted by Order dated May 30, 2007. Official

recognition was taken of Sections 390.011, 390.0111, 390.012,

(m), and (t)1., Florida Statutes; 21 U.S. Code Sections 802,

821, 822, and 824; and 212 Code of Federal Regulations

Section 1301 (subparts 1, 11 through 14, 22, 35, 36, and 76).

On June 15, 2007, the Department filed a Motion to Amend

the Administrative Complaint, which was granted at the

commencement of the final hearing.

The parties filed a Joint Pre-hearing Stipulation and

stipulated to certain facts contained in Section E of the Joint

Pre-hearing Stipulation. Those facts have been incorporated in

this Recommended Order to the extent relevant.

On June 18, 2007, the Department filed a Notice stating

that it would not be presenting evidence at the final hearing

relating to DOH Case 2004-39923, which related to Patient T.R.

At the final hearing, the parties submitted Joint

Exhibits 1 through 7, 8A, 8B, and 9 through 11, which were

admitted in evidence. The Department called Dr. Pendergraft and

Jorge Gomez, M.D., as witnesses. Petitioner’s Exhibits 1, 2,

and 3 were admitted in evidence.

Leave was granted for Petitioner to take the deposition of

Zvi Harry Perper, M.D., after the final hearing. Dr. Perper was

deposed via written deposition questions. Responses to the

questions were filed on August 17, 2007.

At the final hearing, Dr. Pendergraft called Jay Neil

Plotkin, M.D., and Steven Warsof, M.D., as his witnesses.

Respondent’s Exhibits 1 through 7 and 9 were admitted in

evidence. Two exhibits were entered into evidence as

Respondent’s Exhibit 4: the Agency for Healthcare

Administration Surveyor’s Notes and the deposition testimony of

Dr. P.C. For ease of reference, the surveyor notes are

designated as Respondent’s Exhibit 4A and the deposition of

Dr. P.C. will be designated as Respondent’s Exhibit 4B.

The three-volume Transcript was filed on August 13, 2007.

The parties filed their Proposed Recommended Orders on

September 10, 2007. The parties’ Proposed Recommended Orders

have been considered in the rendering of this Recommended Order.

FINDINGS OF FACT

1. The Department is the state agency in Florida charged

with regulating the practice of medicine pursuant to

Section 20.43 and Chapters 456 and 458, Florida Statutes.

2. At all times material to the Amended Administrative

Complaint, Dr. Pendergraft has been a licensed physician in the

State of Florida, having been issued license No. ME 59702.

Dr. Pendergraft is board-certified in Obstetrics and Gynecology.

He does not have hospital privileges in Florida.

3. At all times material to the Amended Administrative

Complaint, Dr. Pendergraft, alone or with one or more partners,

owned and operated Orlando Women’s Center, Inc. (OWC), a clinic

located in Orlando specializing in abortions. OWC is not a

hospital.

4. At all times relevant to the Amended Administrative

Complaint, Dr. Pendergraft did not have a current, valid Drug

Enforcement Administration (DEA) number.

5. On June 3, 2005, R.W. presented to her primary care

physician symptoms of weight gain, fatigue, and lack of a

menstrual period for several months. R.W. was a marathon runner

and had experienced a delay in her menstrual cycle before

because of her strenuous training. She had been taking oral

contraceptives. At that time, her primary care physician did

not diagnose R.W. as being pregnant.

6. A couple of weeks after her visit with her primary care

physician, R.W. still had not regained her menstrual cycle and

took a home pregnancy test. The results of the home pregnancy

test were positive. R.W. contacted her primary care physician,

who ordered laboratory tests for R.W. Laboratory tests were

conducted on June 14, 2005, and June 21, 2005. Both tests

confirmed the pregnancy.

7. R.W. was referred to Bert Fish Medical Center for an

ultrasound on June 21, 2005. The ultrasound showed that R.W.

was pregnant. The physician who prepared the diagnostic imaging

report based on the ultrasound stated in the report:

There is a single intrauterine fetus with an

estimated gestational age of 24.5 weeks.

Positive fetal heartbeat is present at 142

beats per minute. However, there is severe

oligohydiamnios with no positive fetal

movement.

8. Gestational age is usually calculated from the first

day of the last menstrual period (LMP) of the pregnant woman.

On average, the last menstrual cycle occurs two weeks prior to

conception. Thus, the gestational age that is determined by the

LMP is actually two weeks more than the date of conception. 2

When the LMP is unknown, fetal measurements are used to

calculate the gestational age.

9. Oligohydramnios means a lack of amniotic fluid.

Amniotic fluid is basically the fetus’ urine. A lack of

amniotic fluid can be caused by the lack of kidneys or

obstructed kidneys, rupture of the membranes, or a malfunction

of the placenta. The lack of amniotic fluid makes it difficult

to assess the fetal measurements using ultrasound.

10. R.W. was referred to an obstetrician, Dr. P.C., who

admitted R.W. to Halifax Medical Center for routine laboratory

work and an obstetrical ultrasound. The ultrasound was

performed on June 22, 2005, and showed that the fetus was in a

breech presentation, there was markedly decreased amniotic

fluid, the bowel was abnormal, and the ventral wall was

suspicious. Based on the ultrasound, it appeared there was

gastroschisis or omphalocele. Gastroschisis occurs when the

abdominal wall of the fetus does not close properly and the

intestines are outside the body. Omphalocele is a herniation of

the intestines, and a sac-like structure covers the intestines

outside the abdominal wall. The assigned gestational age

estimated by the physician reviewing the ultrasound was 25 weeks

and five days. 3

11. R.W. was referred to a perinatologist in Jacksonville.

Another ultrasound was performed on June 23, 2005. The

assigned gestational age was 25 weeks and six days, which would

mean that the age of the fetus was 23 weeks and six days from

conception. 4 The lack of amniotic fluid and the position of the

fetus made it difficult to determine the actual gestational age

of the fetus. The perinatologist reported the following to Dr.

P.C.:

At this time, an ultrasound examination was

performed which showed a single living fetus

in breech presentation. There is no

amniotic fluid which precluded an adequate

examination of fetal anatomy. The right

kidney and bladder were visualized

essentially excluding diagnosis of renal

agenesis. A normal appearing 4 chamber

structure was seen which visually appears to

occupy more than 50% of the chest cavity.

This is also very difficult to evaluate due

to the position of the baby. There appears

to be an anterior abdominal wall defect most

likely a gastroschisis, however, again this

is impossible to evaluate in great detail.

Of importance and further complicating the

problems in this case, is the biometry.

Measurements of head circumference and

cerebellum are consistent with 30 weeks,

however, the femur length is consistent with

25 weeks. The fact that this patient has

been amenorrheic since October when she

could be up to 34 weeks gestation is

significant. We don’t know the exact

gestation but it is of concern that there is

a dramatic difference between the

extremities, abdomen, and head circumference

as well as the cerebellum. This points to a

growth retardation process. Doppler studies

of the umbilical circulation were slightly

elevated but if there had been placental

disfunction I would have expected an absent

diastolic component which was not the case.

* * *

[M]y biggest concern has to do with the

anhydramnios and the fact that we don’t know

for how long this process has been active.

Pulmonary hypoplasia is a strong

consideration given the size of the chest

and the virtual absence of fluid.

Nevertheless, not knowing for how long she

has not had fluid is difficult to quote her

a risk. The second area of concern is that

of the appearance of a structural

abnormality. Typically gastroschisis is not

associated with a chromosomal anomaly,

however, given the discrepancies in

biometries and the absence of amniotic

fluid, I wonder if this is not a

gastroschisis or if it is, part of a more

complex situation.

12. The perinatologist conveyed his findings to Dr. P.C.,

who discussed the situation with R.W. R.W. decided to terminate

the pregnancy. The office notes of Dr. P.C. stated, “It was

felt by me and my partners that facilitating delivery of this

non-viable child was appropriate.” Dr. P.C. called

Dr. Pendergraft to discuss the case. Dr. Pendergraft agreed to

help, and Dr. P.C. gathered R.W.’s medical records to send to

Dr. Pendergraft.

13. On July 7, 2005, R.W. presented to Dr. Pendergraft at

OWC. R.W. filled out an information sheet and listed the first

day of her last normal period as January 5, 2005. 5 R.W. filled

out the appropriate consent forms, which a counselor reviewed

with her. R.W.’s vital signs were taken and laboratory tests

were performed by staff at OWC.

14. Dr. Pendergraft’s notes stated that the sonogram

showed severe growth restriction of the fetus. He further

indicated that there was a possibility of severe pulmonary

hypoplasia and risk of life-threatening sudden health issues or

probable fetal, prenatal demise. Dr. Pendergraft wrote in his

notes that R.W.’s PMD OB/GYN physician concurred with the

maternal health reasons for the termination of the pregnancy.

15. On July 7, 2005, 6 at approximately 4:27 p.m.,

Dr. Pendergraft administered Digoxin into the heart of the fetus

to stop the fetal heart beat. Dr. Pendergraft and his medical

assistant, S.M., monitored the fetal heart beat using a sonogram

until the fetal heart stopped. The procedure was documented on

a form used by the OWC entitled “Second Trimester Medical

Procedure.” On the form, it is noted that the patient was

evaluated on July 7, 2005, and found to be 27 to 28 weeks

pregnant, which is 25 to 26 weeks from conception. According to

T.S., a medical assistant employed by Dr. Pendergraft, the

handwriting which indicates the estimated length of the

pregnancy belongs to Dr. Perper, a colleague of Dr. Pendergraft.

Both Dr. Perper and Dr. Pendergraft signed the form.

16. After the Digoxin procedure was completed, R.W. was

taken to a private room and given Cytotec to induce labor. S.M.

continued to administer Cytotec and monitor R.W. until 8:30

p.m., when T.S. relieved S.M.

17. At approximately 12:30 a.m., on July 8, 2005, R.W.

developed a fever and the administration of Cytotec was

discontinued. T.S. administered Ibuprofen to R.W. to lower the

fever.

18. At 1:30 a.m., T.S. noted that R.W. was having some

cramping. T.S. wrote the following in the progress notes: “I

have a standing order from Dr. Pendergraft for 2 cc Demerol

[with] 1 cc Phenergran.” This order was to alleviate the pain

from the cramping. At the final hearing, T.S. stated that the

note was not totally accurate, because the standing order was

from Dr. Perper and not Dr. Pendergraft because Dr. Pendergraft

did not have DEA authorization. She attributes the error in her

notes to her 20-year working relationship with Dr. Pendergraft

and her automatically thinking of Dr. Pendergraft in terms of

standing orders. The standing order itself was not submitted

into evidence. The evidence is not clear and convincing that

Dr. Pendergraft gave the standing order for the Demerol and

Phenergran.

19. At 4:30 a.m., the cramping had increased. T.S. gave

R.W. an injection of 2 cc of Demerol with 1 cc of Phenergran.

At 6:30 a.m., R.W. delivered the fetus and placenta at the same

time inside an empty water sack. The products of conception,

which included the fetus, membranes, and placenta weighed

800 grams. The weight of the products of conception was

recorded on a form used by the OWC, entitled “Clinic Examination

of Products of Conception.” The form listed the preoperative

estimate of gestational age to be 28 weeks, which would be 26

weeks from conception. Dr. Pendergraft was one of the

signatories on the form.

20. Dr. Pendergraft charged R.W. $12,000 for the

procedure.

21. Although, both Dr. Pendergraft and his associate

Dr. Perper, felt that, preoperatively, the gestational age of

the fetus was between 27 and 28 weeks, Dr. Pendergraft did not

transfer R.W. to a hospital.

22. Jorge Gomez, M.D., testified as an expert witness on

behalf of the Department. Dr. Gomez is board-certified in

obstetrics and gynecology and in maternal-fetal medicine.

Dr. Gomez opined that on July 7, 2005, the age of the fetus from

conception was 27 weeks. His opinion was based on biparietal

diameter (BPD), the head circumference, the size of the

cerebellum, and the femur length. He discounted the abdominal

circumference because the abdominal wall defect would result in

a less reliable measurement of the age of the fetus. The

abdominal wall defect would cause the measurement to be smaller

than would be expected for the age of the fetus.

23. Jay Neil Plotkin, M.D., testified as an expert witness

for Dr. Pendergraft. Dr. Plotkin has been a licensed physician

for 37 years and is board-certified in obstetrics and

gynecology. Dr. Plotkin has not treated patients for four years

and has not performed an abortion in six or seven years. It was

Dr. Plotkin’s opinion that the abortion occurred during the

second trimester rather than the third trimester. His opinion

is based on the combined fetal and placental weight at time of

delivery. He concluded that the gestational age at the time of

delivery was 24 weeks, which would translate to 22 weeks of

pregnancy from conception. He used a chart to determine the age

based on the weight of the fetus, but he did not know if the

chart was based on normal fetuses or included fetuses with

abnormalities such as the one at issue.

24. Dr. Pendergraft also called Steven Warsof, M.D., as an

expert witness. Dr. Warsof is an obstetrician/gynecologist with

a subspecialty in maternal-fetal medicine. He has spent most of

his professional career pursuing academic issues in obstetrical

ultrasonography. It was his opinion that R.W.’s pregnancy was

in the second trimester. He also based his opinion on the

weight of the products of conception after delivery.

25. Based on the evidence presented, it is clear and

convincing that R.W. was in her third trimester of pregnancy

when she had the abortion. The only two doctors who placed the

pregnancy in the second trimester based their opinions on the

weight of the fetus and placenta at the time of delivery.

Because of the complications of R.W.’s pregnancy, it is clear

that the fetus had not developed normally and was underweight

for its age. There had been a lack of amniotic fluid which is

essential to development of the fetus. Based on his office

records, it is also clear and convincing that Dr. Pendergraft

was under the impression that R.W. was in her third trimester of

pregnancy when he performed the abortion.

26. The medical records of Dr. Pendergraft do not contain

a written certification from two physicians that within a

reasonable degree of medical probability the termination of

R.W.’s pregnancy was necessary to save the life or preserve the

health of R.W. The evidence established that Dr. Pendergraft

wrote in his notes that there was a risk of life-threatening,

sudden health issues. Assuming he was referring to the health

issues of the pregnant woman, this note could be considered a

certification that to a degree of medical probability that the

abortion was necessary to preserve the health of R.W. However,

there is no written certification from another physician that

that was the case, and the note of Dr. Pendergraft that R.W.'s

primary care physician concurred with the maternal health

reasons for termination of the pregnancy is not a written

certification from another physician. The medical records kept

by Dr. Pendergraft do not contain a written certification that

there is a medical necessity for emergency medical procedures to

terminate the pregnancy and that no other physician is available

for consultation.

27. No evidence was presented concerning the allegations

in Counts IV, V, and VI of the Amended Administrative Complaint.

CONCLUSIONS OF LAW

28. 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. (2006).

29. The Department must establish the allegations in the

Amended Administrative Complaint by clear and convincing

evidence. Department of Banking and Finance v. Osborne Stern

and Company , 670 So. 2d 932 (Fla. 1996). The clear and

convincing standard has been described by the courts as follows:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

30. The Department has alleged that Dr. Pendergraft

violated Subsection 456.072(1)(k), Florida Statutes, which

provides:

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(k) Failing to perform any statutory or

legal obligation placed upon a

licensee. . . .

31. The Department has alleged that Dr. Pendergraft

violated Subsections 458.331(1)(g), (m), and (t), Florida

Statutes, which provide:

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072(2):

* * *

(g) Failing to perform any statutory or

legal obligation placed upon a licensed

physician.

* * *

(m) Failing to keep legible, as defined by

department rule in consultation with the

board, medical records that identify the

licensed physician or the physician extender

and supervising physician by name and

professional title who is or are responsible

for rendering, ordering, supervising, or

billing for each diagnostic or treatment

procedure and that justify the course of

treatment of the patient, including, but not

limited to, patient histories; examination

results; test results; records of drugs

prescribed, dispensed, or administered; and

reports of consultations and

hospitalizations.

* * *

(t) Notwithstanding s. 456.072(2), but as

specified in s. 456.50(2):

1. Committing medical malpractice as

defined in s. 456.50. The board shall give

great weight to the provisions of s. 766.102

when enforcing this paragraph. Medical

malpractice shall not be construed to

require more than one instance, event, or

act.

32. Subsection 456.50(1)(g), Florida Statutes, defines

“medical malpractice” as “the failure to practice medicine in

accordance with the level of care, skill, and treatment

recognized in general law related to health care licensure,”

which is the standard of care specified in Subsection 766.102,

Florida Statutes, which provides that the prevailing standard of

care for a given health care provider is “that level of care,

skill, and treatment, which in light of all relevant surrounding

circumstances, is recognized as acceptable and appropriate by

reasonably prudent similar health care providers.”

33. In Count I of the Amended Administrative Complaint,

the Department alleges that Dr. Pendergraft violated Subsections

a third trimester abortion procedure on R.W. at the OWC facility

and by performing a third trimester abortion procedure on R.W.

without having two physicians certify in writing to the fact

that, to a reasonable degree of medical probability, the

termination of the pregnancy was necessary to save the life or

preserve the health of R.W. or certifying that it was an

emergency and another physician was not available for

consultation.

34. Subsection 797.03(3), Florida Statutes, provides that

“[i]t is unlawful for any person to perform or assist in

performing an abortion on a person in the third trimester other

than in a hospital.” Subsection 390.0111(1), Florida Statutes,

provides:

(1) TERMINATION IN THIRD TRIMESTER; WHEN

ALLOWED.—No termination of pregnancy shall

be performed on any human being in the third

trimester of pregnancy unless;

(a) Two physicians certify in writing to

the fact that, to a reasonable degree of

medical probability, the termination of the

pregnancy is necessary to save the life or

preserve the health of the pregnant woman;

or

(b) The physician certifies in writing to

the medical necessity for legitimate

emergency medical procedures for termination

of pregnancy in the third trimester, and

another physician is not available for

consultation.

35. Subsection 390.011(8), Florida Statutes, defines

“third trimester” as “the weeks of pregnancy after the 24th week

the Florida Statutes. Taken literally, the term would mean that

weeks of pregnancy would be the number of weeks that the woman

was actually pregnant. Therefore, it is concluded that weeks of

pregnancy refers to the number of weeks from the time of

conception and not the last menstrual period of the woman. If

the Legislature had intended that gestational age be used, it

could have so stated.

36. The Department has established by clear and convincing

evidence that Dr. Pendergraft violated Subsections 456.072(1)(k)

and 458.331(1)(g), Florida Statutes. R.W. was in her third

trimester of pregnancy when Dr. Pendergraft performed the

abortion. Subsection 797.03(7), Florida Statutes, prohibits

persons from performing third trimester abortions in locations

other than a hospital. Dr. Pendergraft was under a legal

obligation to perform the third trimester abortion in a

hospital, and he did not do so.

37. Dr. Pendergraft had a legal obligation pursuant to

Subsection 390.0111(1), Florida Statutes, to have the written

certifications of two physicians that within a medical

probability it is necessary to perform the abortion to save the

life or preserve the health of R.W. or to certify in writing

that an emergency existed, and there was no other physician

available for consultation. He did not do so. The notation in

his records that Dr. P.C. concurred with the maternal health

reasons for terminating the pregnancy is not sufficient to meet

the statutory requirement of Subsection 390.0111(1)(a), Florida

Statutes, and there is no certification in the records that an

emergency existed, and no other physician was available for

consultation.

38. In Count II of the Amended Administrative Complaint,

the Department alleges that Dr. Pendergraft violated Subsection

458.331(1)(m), Florida Statutes, by not certifying in writing

that to a reasonable degree of medical probability the

termination of R.W.’s pregnancy was necessary to save the life

or preserve the health of R.W., by failing to obtain a

concurring certification from a second physician, and by failing

to certify in writing that an emergency existed.

39. The Department has established by clear and convincing

evidence that Dr. Pendergraft violated Subsection 458.331(1)(m),

Florida Statutes. His medical records did not contain a

certification in writing from two physicians that within a

reasonable medical probability the abortion was necessary to

save the life or preserve the health of R.W., and he did not

certify in writing that an emergency existed and that there was

no other physician available to consult.

40. In Count III of the Amended Administrative Complaint,

the Department alleges that Dr. Pendergraft violated Subsection

458.331(1)(t)1., Florida Statutes, in one or more of the

following ways:

a. By performing a third trimester abortion

procedure on Patient R.W. at the OWC

facility.

b. By not certifying in writing that to a

reasonable degree of medical probability,

the termination of Patient R.W.’s pregnancy

was necessary to save the life or preserve

the health of the pregnant woman, or obtain

a concurring certification from a second

physician.

c. By not certifying in writing that an

emergency existed.

d. By not transferring Patient R.W. to a

hospital before performing the third

trimester abortion.

e. By prescribing, ordering or

administering Demerol to Patient R.W. when

Respondent did not have a current, valid DEA

number to allow him, as a licensed

physician, to prescribe, order, or

administer controlled substances.

41. The Department has failed to establish by clear and

convincing evidence that Dr. Pendergraft ordered the

administration of Demerol to R.W. when he did not have a

current, valid DEA number. Although the note of the medical

assistant indicated that the standing order for the Demerol was

from Dr. Pendergraft, she credibly testified that the order was

from Dr. Perper.

42. The Department has established by clear and convincing

evidence that Dr. Pendergraft violated Subsection

458.331(1)(t)1., Florida Statutes, by performing a third

trimester abortion on R.W. in a setting other than a hospital,

by not transferring R.W. to a hospital for the abortion, by

performing the abortion when it was not an emergency, and by

performing the abortion without the written certification of two

physicians that the procedure was necessary to save the life or

preserve the health of R.W. The standard of care for performing

third trimester abortions in Florida is set forth in Sections

390.0111 and 797.03, Florida Statutes, and Dr. Pendergraft

failed to meet that standard of care.

43. The Department failed to establish the allegations set

forth in Counts IV, V, and VI of the Amended Administrative

Complaint.

44. Florida Administrative Code Rule 64B8-8.001 sets forth

the range of penalties to be imposed for violations of Chapters

456 and 458, Florida Statutes. The range of penalties for a

violation of Subsections 456.072(1)(k) and 458.331(1)(g),

Florida Statutes, goes from a letter of concern to revocation

and an administrative fine of from $1,000.00 to $10,000.00. The

penalty for a violation of Subsection 458.331(1)(m), Florida

Statutes, goes from a reprimand to two years' suspension

followed by probation and an administrative fine from $1,000.00

to $10,000.00. The penalty for violation of Subsection

458.331(1)(t)1., Florida Statutes, goes from one year's

probation to revocation and an administrative fine from

$1,000.00 to $10,000.00.

45. On September 10, 2007, Dr. Pendergraft filed a Motion

for Attorney's Fees and Costs relating to Counts IV, V, and VI

of the Amended Administrative Complaint pursuant to Sections

57.105 and 120.595, Florida Statutes. 7 Section 120.595, Florida

Statutes, cannot form the basis for an award of attorney's fess

in the instant case. Subsection 120.595(1)(b), Florida

Statutes, provides:

(b) The final order in a proceeding

pursuant to s. 120.57(1) shall award

reasonable costs and a reasonable attorney's

fee to the prevailing party only where the

nonprevailing adverse party has been

determined by the administrative law judge

to have participated in the proceeding for

an improper purpose.

46. In the instant case, the Department does not meet the

definition of a "nonprevailing adverse party," as defined in

Subsection 120.595(1)(e)3., Florida Statutes, as one "that has

failed to have substantially changed the outcome of the proposed

or final agency action. . . ." The Department has not sought to

change the outcome of the proposed agency action.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered finding

Dr. Pendergraft guilty of violations of Subsection

456.072(1)(k), 458.331(1)(g), 458.331(1)(m), and

458.331(1)(t)1., Florida Statutes; dismissing Counts IV, V, and

VI of the Amended Administrative Complaint; suspending his

license for one year followed by three years of probation with

indirect monitoring; imposing an administrative fine of

$10,000.00; and denying his motion for attorney's fees pursuant

to Subsection 120.595(1)(b), Florida Statutes.

DONE AND ENTERED this 26th day of October, 2007, in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 26th day of October, 2007.

ENDNOTES

1/ All references to the Florida Statutes are to the 2005

version, unless otherwise stated.

2/ The age of the fetus at the time of the ultrasound on

June 21, 2005, based on date of conception would have been

22.5 weeks or 22 weeks and three and one-half days. Thus, based

on the ultrasound taken on June 21, 2005, R.W. would have been

24 weeks and five and one-half days pregnant.

3/ Based on the findings of the ultrasound done on June 22,

2005, R.W. would have been 23 weeks and five days pregnant from

the time of conception. Thus, based on the findings of the

June 22, 2005, ultrasound, R.W. would have been 25 weeks and six

days pregnant at the time of the abortion.

4/ Based on the findings of the physician interpreting the

ultrasound on June 23, 2005, R.W. would have been pregnant for

25 weeks and six days at the time of the abortion based on the

dating of pregnancy from conception.

5/ The perinatologist who examined R.W. was under the impression

that R.W.’s last menstrual period was in October 2004. However,

R.W. listed January 5, 2005, as the first day of her last normal

period. A note in Dr. P.C.’s records indicate that R.W. ran her

last marathon in January 2005. Thus, it is not clear if R.W.

was listing the time in which she had concluded her strenuous

training and should have resumed her normal periods or if

January 5, 2005, was, indeed, the last normal period that she

had before she learned that she was pregnant. The opinions of

the experts who testified were based on the premise that R.W.

was not able to determine the date of her last menstrual period

because of her amenorrhea. However, if her last menstrual

period was January 5, 2005, she would have been 24 weeks and one

day pregnant at the time of the abortion on July 7, 2005, based

on the fetal age from conception.

6/ The Amended Administrative Complaint alleged that

Dr. Pendergraft performed the abortion on July 5, 2005; however,

the evidence established the abortion on July 7, 2005.

Dr. Pendergraft argued in his Proposed Recommended Order that he

was deprived of due process because the Department did not prove

that the abortion occurred on July 5, 2005. The reference to

July 5, 2007, in the Amended Administrative Complaint is a

scrivener's error. Dr. Pendergraft was not prejudiced by the

error. He fully defended against the Amended Administrative

Complaint. The instant situation differs vastly from having to

defend against a change that was not alleged or conduct that

was not alleged. See Werner v. Dept. of Ins. & Treasurer ,

689 So. 2d 1211, 1213-1214 (Fla. 1st DCA 1997).

7/ The motion as it relates to Section 57.105, Florida Statutes,

is dealt with by separate order.

COPIES FURNISHED :

Irving Levine, Esquire

Department of Health

4052 Bald Cypress Way, Bin C65

Tallahassee, Florida 32399-3265

Kenneth J. Metzger, Esquire

Fowler White Boggs Banker, P.A.

Post Office Box 11240

Tallahassee, Florida 32302

Kathryn L. Kasprzak, Esquire

Fowler White Boggs Banker, P.A.

200 South Orange Avenue, Suite 1950

Orlando, Florida 32801

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 A-02

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.