07-000503PL Department Of Health, Board Of Medicine vs. Samuel Cox, M.D. Status: Closed Recommended Order on Tuesday, June 19, 2007.

Summary: Respondent failed to recognize signs of a leak at the gastrojejunal anastomosis.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 07 - 0503PL

)

SAMUEL COX, M.D., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursua nt to notice, a formal hearing was held in this case

before Larry J. Sartin, an Administrative Law Judge of the

Division of Administrative Hearings, on April 11 and 12, 2007,

by video teleconference between Lauderdale Lakes and

Tallahassee, Florida.

APPEAR ANCES

For Petitioner: Patricia Nelson

Assistant General Counsel

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Jonathon Lynn, Esquire

Marci Strauss, Esquire

Stephens , Lynn, Klein, La Cava,

Hoffman & Puya, P.A.

301 East Las Olas Boulevard, Suite 800

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUES

The issues in this case for determination are whether

Respondent Samuel Cox, M.D., committed the violations of Chapter

458, Florida Statutes, as alleged in an Administrative Complaint

filed by the Department of Health on November 18, 2006; and, if

so, what disciplinary action should be taken against his license

to practice medicine in Florida.

PRELIMINARY STATEM ENT

On or about November 18, 2006, the Department of Health

filed before the Board of Medicine a three - count Administrative

Complaint, Case Number 2005 - 67168, against Respondent Samuel

Cox, M.D., an individual licensed t o practice medicine in

Florida. In particular, it is alleged in the Administrative

Complaint that Dr. Cox committed violations of S ections

458.331(1)(m) and (t), Florida Statutes (2005)(All references to

Florida Statu t es and the Florida Administrative Code are to the

2005 versions, unless o therwise indicated). Dr. Cox, through

counsel, disputed the allegations of fact contained in the

Administrative Complaint and requested a formal administrative

hearing pursuant to Sections 120.569(2)(a) and 120.57(1),

Florida Statutes (2006).

On January 2 9 , 200 7 , the matter was filed with the Division

of Administrative Hearings with a request that an administrative

law judge be assigned to conduct proceedings pursuant to Section

120.57(1), Florida Statutes (2006). The matter was designated

DOAH Case Numbe r 0 7 - 0503 PL and was assigned to the undersigned.

The final hearing was scheduled to be held in Fort

Lauderdale, Florida, April 11 through 13, 2007, by Notice of

Hearing entered February 13, 2007. On April 6, 2007, an Amended

Notice of Hearing By Video Tel econference was entered scheduling

the hearing to be conducted by video teleconferencing between

Lauderdale Lakes and Tallahassee, Florida.

On April 10, 2007, Dr. Cox filed a Motion to Limine to

Preclude Evidence of Prior Acts. Argument on this Motion was

heard at the commencement of the fi nal hearing. Reserving

ruling on the Motion, Dr. Cox was told to raise the issue of the

Motion as "each situation" arose during the final hearing so

that his arguments could be dealt with based on a specific

situation . No objection was raised by Dr. Cox during the

hearing. Therefore, the Motion was effective ly denied.

On April 11, 2007, Petitioner filed a Motion to Take

Official Recognition. The Motion was granted.

During the final hearing, Petitioner presented the

te stimony of Christian Birkedal, M.D. Petitioner's Exhibits A

through H were admitted. Dr. Cox objected to the admission of

Petitioner's Exhibit I, a transcript of the deposition testimony

of Robert T. Marema, M.D. A ruling on the admissibility of the

dep osition was reserved to give the parties an opportunity to

address fully the basis for the objection. As discussed in the

Conclusions of Law section of this Recommended Order, the

deposition is admitted.

Dr. Cox testified on his own behalf and presented t he

testimony of Samuel Ross Fox, M.D. , and Samuel Szomstein, M.D.

Respondent's Exhibits 1 through 3 were also admitted.

The two - volume Transcript of the final hearing was filed on

May 2, 2007 . By Notice of Filing Transcript entered May 2 ,

200 7 , the parti es were informed that the Transcript had been

filed and that their proposed recommended orders were to be

filed on or by May 22, 2007 . The date for filing proposed

recommended orders was extended to May 29, 2007 , at the

unopposed request of Petitioner . D r. Cox filed Proposed

Findings of Fact on May 25, 2007 and Petitioner filed

Petitioner's Proposed Recommended Order on May 29, 2007. The

post - hearing proposals of both parties have been fully

considered in rendering this Recommended Order.

FINDINGS OF FAC T

A. The Parties .

1. Petitioner, the Department of Health (hereinafter

referred to as the "Department"), is the agency of the State of

Florida charged with the responsibility for the investigation

and prosecution of complaints involving physicians licens ed to

practice medicine in Florida. § 20.43 and Chs. 456 and 458,

Fla. Stat.

2. Respondent, Samuel Cox , M.D., is, and was at the times

material to this matter, a physician licensed to practice

medicine in Florida, having been issued license number ME 778 51

on April 22, 1999 .

3. Dr. Cox's mailing address of record at all times

relevant to this matter is 2438 East Commercial Boulevard, Fort

Lauderdale , Florida 33308 .

4. Dr. Cox is a board - certified general surgeon who has

specialized his practice to baria tric surgery. He has performed

bariatric surgery since 1985, performing approximately 3,000

such surgeries since that time. Dr. Cox has performed

approximately 214 Roux - en Y procedures in Florida.

5 . No evidence that Dr. Cox has previously been the

subj ect of a license disciplinary proceeding was offered.

B. Bariatric Surgery .

6. Bariatri c surgery , also known as gastro - bypass surgery,

is a type of surgery performed on morbidly obese patients to

assist the m in losing weight . In order t o be found to be

morbidly obese and, therefore, to be considered a candidate for

the procedure, a patient must be found to have a Body Mass Index

greater than 40. Body Mass Index is a measure of body fat based

on height and weight (weight in kilograms divided by the squar e

of height in meters). For example, a six - foot - tall individual

weighing 296 pounds would have a Body Mass Index of 40.1. See

http://www.nhlbisupport.com/bmi/. A patient with a Body Mass

Index of 35 may also be considered a candidate for the surgery

if they present with certain co morbidities associated with

ob esity. Comorbidities are physical problems associated with

obesity and include diabetes, lung problems, heart problems, and

high blood pressure. The more comorbidities a patient has, the

higher th e risk is to that patient from bariatric surgery.

7. While there is more than one type of bariatric surgery ,

at issue in this case is a procedure known as Roux - en - Y gastric -

bypass surgery (hereinafter referred to as "RNY Surgery") . RNY

Surgery is a surgi cal method of creating a reduced - size d

stomach. This reduced - size d stomach is created by removing a

small portion of the stomach , where the esophagus (which brings

food from the mouth to the stomach) attaches to the stomach ,

from the larger remaining port ion of the stomach . The small

portion of the stomach attached to the esophagus is then formed

into a pouch, creating a much smaller stomach. The remaining

larger portion of the stomach is completely by - passed. Often a

device called a silastic ring i s us ed at the bottom of the newly

created stomach to help the pouch maintain the desired size and

prevent it from stretching into a larger pouch. A portion of

the small intestine is attached to the bottom of the newly

created stomach. Approximately 150 centi meters down the small

intestine, the excluded or removed portion of the stomach, the

liver, and the pancreas are connected back to the intestine.

This allows digestion of food to continue, but reduces the

amount of digestion that previously occurred in th e 150

centimeters of the intestine which are bypassed.

8 . RNY Surgery allows a patient to lose weight in two

ways: first, by limiting the amount of food the patient can

eat; and secondly, by reducing the absorption of nutrients by

bypassing part of the i ntestine .

9 . The most common and serious complication of RNY Surgery

is a leak at the gastrojejunal anastomosis, or the point where

the newly created stomach pouch (the gastro) is connected to the

intestine (the jejunal) (a gastrojejunal anastomosis leak w ill

hereinafter be referred to simply as a "Leak") . This

complication may be evidence d by several symptoms exhibited by a

patient. S urgeons performing bariatric surgery must look for

these symptoms. The typical symptoms of a Leak include left

shoulder p ain (caused by pooling of the leakage under the

diaphragm which causes irritation which manifests as left

shoulder pain), decreased urine output, fever, shortness of

breath, and high heart rate. Some manifestations of a Leak ,

such as atrial fibrillation , are indirect signs of a Leak in

that they are associated with the stress on the body caused by

the Leak.

C . Dr. Cox's Treatment of Patient W.T.

10 . Patient W.T. presented to Dr. Cox for bariatric

surgery. W.T., a male, was 47 years of age at the time an d was

morbidly obese.

11 . W.T. weighed 458 pounds and had a Body Mass Index of

62. Because his Body Mass Index exceeded 50, he was considered

"super" morbidly obese. He also had the following

comorbidities: high blood pressure, sleep apnea, congestive

heart failure, thrombophlebitis, pulmonary eboli, diabetes, and

gatroesophageal reflux disease.

12 . There is no dispute that W.T. was an appropriate

candidate for bariatric surgery.

13 . W.T. underwent RNY Surgery on August 31, 2005. During

the surgery, Dr. Cox experienced difficulty seeing, due to the

size of W.T.'s liver, the staples which he used to connect the

intestine to the bottom of the newly formed stomach. Instead of

confirming the placement of the staples, he was required to

assess the staples with his fingers. This should have made him

more sensitive to the possibility of a Leak.

14 . Before ending the surgery, Dr. Cox performed a test

called a methylene blue test. To perform this test, an

anesthesiologist puts medicine down a tube which pas ses through

the p atient's nose and into the new stomach. The physician then

looks for any sign of a leak where the physician has sewn or

stapled the small intestine to the stomach. With W.T., the

methylene blue test did not disclose any leaks.

15 . The d ay after W.T.'s bariatric surgery, September 1,

2005, W.T. began to complain of pain in his left shoulder which

is a n important symptom of a L eak. W.T. also experienced

decreased urine output during the night (he had, however,

"responded well to fluid inc reases and di uretics " ), and a low -

grade fever, which are also indicators of a Leak.

16 . Although pain is a normal response to any operation,

pain in the shoulder for the type of non - laparoscropic bariatric

surgery performed by Dr. Cox should have made Dr. Cox more

concern ed than he apparently was as to the cause . The normal

pain response to the type of operation Dr. Cox performed would

be expec ted where the incision was made, but not in the

shoulder.

17 . Dr. Cox treated W.T.'s shoulder pain with narcotic

analgesia by a patient - controlled analgesia pump. He treated

t he decreased urine output with increased fluids and a diuretic

(Mannitol). The fever was treated with Tylenol.

18 . Although the left shoulder pain, decrease in urine

output , and low - grade fe ver could have been indicative of a

Leak, Dr. Cox made no note in the patient records that he had

considered the p ossibility that W.T. had a Leak, prematurely

ruling out the possibility of a Leak.

19 . Dr. Cox suggested that the left shoulder pain was

rela ted to a diaphragmatic irritation cause d by the use of

surgical instruments on the diaphragm and th at the urine output

decline could have been attributable to the impact on W.T.'s

kidneys by his diabetes. While these might have been

appropriate considerat ions at the time, Dr. Cox could have not

known for sure what was causing W.T.'s symptoms and, therefore,

should have considered all the possible causes of these

symptoms, especially the possibility of a Leak.

20 . On the second post - operative day, Septembe r 2, 2005,

W.T. exhibited an abnormal heart rhythm, called atrial

fibrillation. With a normal heart rhythm, the atrial (the first

two of the four heart chambers) contracts, followed by

contraction of the ventricles (the other two heart chambers).

Atrial fibrillation is an abnormal heart rhythm characterized by

a failure of the atria to completely contract. The fact that

W.T. , who had no prior history of atrial fibrillation , was

evidencing atrial fibrillation on post - operative day two should

have raised a concern about what was happening to W.T. ,

including, but not limited to, the possibility of a Leak.

21 . W.T. was also experiencing a n abnormally high heart

rate of 148, which could have also been indicative of a Leak.

22 . Dr. Cox continued to treat W.T. 's shoulder pain with

narcotic analgesia and the decreased urine output with increased

fluids and Mannitol. He treated the elevated heart rate with

Cardizem, a medicine used to slow the heart. W.T.'s shoulder

pain appeared to decrease, which was to be ex pected given the

course of treatment ordered by Dr. Cox. Dr. Cox had not,

however, appropriately determined the cause of the pain.

23 . Again, nothing in Dr. Cox's medical records indicate s

that he considered the possibility that W.T.'s various symptoms

m ight be indicative of a Leak. No r did he take any action , such

as an upper gastrointestinal test, to rule out the possibility

of a Leak .

24 . To perform a gastrointestinal test, a patient drinks a

water - solub le contrast called Gastrografin and a radiologi sts

takes serial pictures of the patient , which show the contrast as

it move s down the esophagus and then cross es through the

anastomos i s of the pouch and intestine. From these pictures, it

can be determined whether the anastomosis is open and

functioning properly and whether any of the contrast leaks

outside of the new stom ach - intestine path. The test is not

fool - proof, but it is an appropriate diagnostic tool for Leaks.

25 . Dr. Cox suggests that the atrial fibrillation and high

heart rate could have si mply been a recognized complication of

any stress W.T., with his borderline cardiac status, was

experiencing. Again, while these might have been appropriate

considerations at the time, Dr. Cox could have not known for

sure what was causing W.T.'s symptoms and, therefore, should

have considered all the possible causes of these symptoms,

especially the possibility of a Leak.

26 . On the third post - operative day, September 3, 2005,

air and serosanguinous fluid were observed seeping from W.T.'s

abdominal incis ion. The existence of air may be evidence of a

Leak. Although some air gets into the abdominal cavity during

surgery, it is usually absorbed by the body very, very quickly.

Air coming from an incision on post - operative day three suggests

a hole in the i ntestine.

27 . Dr. Cox responded to the finding of air coming from

the abdominal incision by ordering a methylene blue swallow,

where W .T. swallowed a small amount of blue dye. Blue dye was

then seen either coming out of the incision or drains placed in

W .T. ' s abdomen. Either way, the test was "positive" indicating

a leak in W .T.'s intestine.

28. Dr. Cox correctly took W .T. back into surgery. He

discovered and corrected a Leak which had been caused by failure

of the staples used in W .T.'s surgery.

29 . Although much was made as to when the staples failed,

that evidence was not conclusive nor is it necessary to resolve

the dispute . Whether the staples failed immediately after

surgery or at some later time does not excuse Dr. Cox's failure

to appropriatel y r eact to signs exhibited by W .T. w hich could

have indicated that W .T. had a Leak. This case does not turn on

whether a Leak actually existed. It turns on whether Dr. Cox

appropriately considered the possibility of a Leak and took the

st eps medically ne cessary. With W .T., he did not.

30 . Dr. Cox's error was not in failing to find the Leak

earlier; it was in failing to properly consider the possibility

of a Leak when W.T. exhibited signs that should have prevented

Dr. Cox from, with reasonable medical c ertainty, ruling out the

possibility that a Leak was present . For this reason, the fact

that a Leak was ultimately found is of little importance in

deciding whether the charges leveled against him in the

Administrative Complaint are accurate. Even if no Leak had

ultimately been found, Dr. Cox's failure to properly respond to

the po tential of a Leak evidenced by W .T.'s symptoms was

inconsistent with the standard of care.

D. Dr. Cox's Treatment of Patient J.L.

31 . Patient J.L. presented to Dr. Cox for bar iatric

surgery. J.L., a male, was 35 years of age at the time and was

morbidly obese.

32 . J.L. weighed 417 pounds and had a Body Mass Index of

58. Because his Body Mass Index exceeded 50, he was considered

"super" morbidly obese. He also had the follow ing

comorbidities: high cholesterol, stress incontinence,

depression, anxiety, high blood pressure, gastroesophageal

reflux disease, and shortness of breath on exertion associated

with asthma.

33 . There is no dispute that J.L. was an appropriate

candidat e for bariatric surgery.

34 . J.L. underwent RNY Surgery on August 4, 2005. Dr. Cox

also removed J.L.'s gallbladder. Before ending the surgery,

Dr. Cox performed a methylene blue test. The methylene blue

test performed on J.L. did not disclose any leak s.

35 . On the first post - operative day, August 4 , 2005,

J.L.'s heart rate was as high as 155 (anything over 120 is

problematic) , was experiencing de creased oxygen saturation of 89

percent (95 percent to 98 percent are considered normal

saturation levels) , had increased BUN and creatinine levels, and

his urine output was borderline low . T he increased BUN and

creatinine, indicative of a problem with the kidneys, wer e are

not being perfused well. J.L. was also complaining of right

shoulder pain. Dr. Cox's note concerning the right shoulder

pain specifically notes that it was not the "left" shoulder,

which suggests that Dr. Cox was aware of the significance of

left shoulder pain.

36 . J.L.'s high heart rate and low oxygen saturation level

were considered sig nificant enough to return him to the

intensive care unit.

37 . On the second post - operative day, August 5, 2005,

J.L.'s BUN and creatinine levels rose higher . That evening J.L.

had a high heart rate. His urine output level, which Dr. Cox

had treated with a diuretic and increased fluids, had improved .

38 . J.L. also became agitated and restless. He began to

constant ly request water. Dr. Cox eventually ordered , ho w ever,

that J.L. not be given water.

39 . Dr. Cox failed to note in his records that he

consi dered the possibility that J.L. had a Leak. Instead,

Dr. Cox focused on the possibility that J.L. was suffering from

rhabdomyolysis, a malfunction of the kidneys caused by the

breakdown , as a result of surgery, of muscle tissue into cells

too large in si ze for the kidneys to process. Dr. Cox ordered a

CK test which found elevated creatine phosphor kinase or CPK, a

marker of muscle death. Dr. Cox then consulted with a

nephrologists.

40 . While the symptoms evidenced by J.L. could have very

well been a re sult of rhadbodmyolysis, they also could have been

symptomatic of a Leak. Dr. Cox did not have adequate

information on August 5, 2005, to conclusive ly find that J.L.

was suffering from rhadbodmyolysis and , more importantly, not

from a Leak.

41 . As of the second post - operative day, J.L. was

exhibiting a high heart rate, low urine output, pain in his

right shoulder, a worsening oxygen saturation level and hunger

for air, and a changed mental status (anxiety and

combativeness). Due to these symptoms, Dr. Co x should have

considered the possibility of a Leak, rather than merely

concluding that J.L. was s uffering from rhabdomyolysis and

treating J.L.'s individual symptoms.

42 . On the third post - operative day, August 6, 2005,

J.L.'s condition worsened. His agi tation and combativeness due

to his thirst and air hunger worsened. J.L. was treated with

Haldol, a psychiatric medication.

43 . Dr. Cox continued to suspect rhadbdomyolysis and to

ignore the possibility of a Leak.

44 . On the fourth post - operative day, A ugust 7, 200 5, at

approximately 15:30, pink - tinged fluid was seen draining from

J.L.'s incision.

45 . A pulmonologist consulting on J.L.'s case wa s the

first to suggest the possibility of a Leak, questioning whether

the entire clinical picture pointed to i ntra - abdominal sepsis

due to a Leak.

46 . It was not until the drainage from J.L.'s incision

that Dr. Cox first considered the possibility of a Leak. Even

then, Dr. Cox did not return J.L. to surgery until August 7,

2005, where a Leak was found and repair ed.

47. Dr. Cox's error in his treatment of J.L., like his

error in his treatment of W.T., was not in failing to find the

Leak earlier, but in failing to properly consider the

possibility of a Leak when J.L. exhibited signs which should

have prevented Dr. Cox from, with reasonable medical certainty,

ruling out the possibility that a Leak was present. For this

reason, the fact that a Leak was ultimately found is of little

importance in deciding whether the charges leveled against him

in the Administrative Complaint are accurate. Even if no Leak

had ultimately been found, Dr. Cox's failure to properly respond

to the potential of a Leak , evidenced by J.L.'s symptoms , was

inconsistent with the standard of care.

48. Dr. Cox 's explanation at hearing as to why he waited

from August 5, 2005, when it was apparent that J.L. had a Leak,

until August 7, 2005, to repair the Leak, is not contained in

Dr. Cox's medical records.

E. The Standard of Care .

4 9 . The Department's expert, Christian Birkedal, M.D.,

credibly op ined that Dr. Cox failed to practice medicine in

accordance with the level of care, skill, and treatment

recognized in general law related to health care licensure in

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

(hereinafter referred to as the "Sta ndard of Care"), in his

treatment of W.T. and J.L.

50 . In particular, it was Dr. Birkedal's opinion that

Dr. Cox violated the Standard of Care as to W.T. by failing to

recognize W.T.'s signs and symptoms of a Leak and by failing to

perform a post - operati ve upper gastrointestinal test on W.T.

once he evidenced those signs. Dr. Birkedal's opinion is

credited and accepted.

5 1 . As to J.L., Dr. Birkedal's opinion that Dr. Cox

violated the Standard of Care by failing to recognize the signs

and symptoms of a L eak for two days post - operatively is credited

and accepted.

5 2 . The opinions to the contrary offered by Dr. Cox and

his witnesses as to W.T. and J.L. are rejected as not convincing

and as not addressing the issue precisely enough. The opinions

offered by Dr. Cox and his witnesses with regard to both

patients were essentially that the various symptoms pointed to

by Dr. Birkedal were not "evidence" of a Leak. Those opinions

do not specifically address the issue in this case. Dr. Cox and

his witnesses base d their opinions on whether Dr. Cox should

have "known" there was a Leak at the times in issue. That is

not the charge of the Administrative Complaint or the basis for

Dr. Birkedal's opinion. The question was, not whether Dr. Cox

should have known there was a Leak, but whether he should have

considered a Leak as a possible cause for the symptoms exhibited

by W.T. and J.L. Additionally, and finally, Dr. Birkedal based

his opinions, not by looking at the record as a whole, as did

Dr. Cox and his experts, but by looking at only those records in

existence at the times relevant to this matter. In this way,

Dr. Birkedal limited himself to a consideration of what Dr. Cox

knew about his patients at the times relevant in the

Administrative Complaint.

CONCLUSIONS OF LAW

A. Jurisdiction .

53 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569, 120.57(1), and

456.073(5), Florida Statutes (2006).

B. The Charges of the Administrative Complaint .

54 . Section 458.331(1), Florida Statutes, authorizes the

Board of Medicine (hereinafter referred to as the "Board"), to

impose penalties ranging from the issuance of a letter of

concern to revocation of a physician's licen se to practice

medicine in Florida if a physician commits one or more acts

specified therein.

55 . In its Administrative Complaint the Department has

alleged that Dr. Cox has violated Section 458.331(1)(m) and (t),

Florida Statutes. The Administrative Com plaint alleges in Co unt

I that Dr. Cox violated S ection 458.331(1)(t), Florida Statutes,

in his treatment of W.T. In Count II it is al leged that Dr. Cox

violated S ections 458.331(1)(m) and (t), Florida Statutes, in

his treatment of J.L.

C . The Burden and Standard of Proof .

56 . The Department seeks to impose penalties against

Dr. Cox 's license through the Administrative Complaint that

include suspension or revocation of his license and/or the

imposition of an administrative fine. Therefore, the Departme nt

has the burden of proving the specific allegations of fact that

support its charge that Dr. Cox violated Sections 458.331(1) (m )

and ( t ), Florida Statutes, by clear and convincing evidence.

Department of Banking and Finance, Division of Securities and

I nvestor Protection v. Osborne Stern and Co. , 670 So. 2d 932

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

Pou v. Department of Insurance and Treasurer , 707 So. 2d 941

(Fla. 3d DCA 1998); and Section 120.57(1)(j), Florida Statutes

(2005)("F indings of fact shall be based on a preponderance of

the evidence, except in penal or licensure disciplinary

proceedings or except as otherwise provided by statute.").

57 . What constitutes "clear and convincing" evidence was

described by the court in Eva ns Packing Co. v. Department of

Agriculture and Consumer Services , 550 So. 2d 112, 116, n. 5

(Fla. 1st DCA 1989), as follows:

. . . [C]lear and convincing evidence

requires that the evidence must be found to

be credible; the facts to which the

witnesses te stify must be distinctly

remembered; the evidence 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

the firm belief o r 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).

See also In re Graziano , 696 So. 2d 744 (Fla. 1997); In re

Davey , 645 So. 2d 398 (Fla. 1994); and Walker v. Florida

Department of Business and Professional Regulation , 705 So. 2d

652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

D . Counts I and II: Violation of Section 458.331(1)(t),

Florida Statutes, The Standard of Care .

58 . Section 458.331(1)(t), F lorida Statutes, defines the

following disciplinable offense:

. . . .

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 cons trued to

require more than one instance, event, or

act.

2. Committing gross medical malpractice.

3. Committing repeated medical

malpractice as defined in s. 456.50. A

person found by the board to have committed

repeated medical malpractice based on s.

456.50 may n ot be licensed or continue to be

licensed by this state to provide health

care services as a medical doctor in this

state .

Nothing in this paragraph shall be construed

to require that a physician be incompetent

to practice medicine in order to be

discipli ned 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 "gross medical malpractice,"

"repeated medical malpractice," or "medical

malpractice," or any combination thereof,

and any publication by the board must so

specify.

59 . The terms "Medical malpractice" are defined in Section

456.50(1)(g), Florida Statutes, in pertinent part, as follows:

(g ) "Medical malpractice" means the

failure to practice medicine in accordance

with the level of care, skill, and treatment

recognized in general law related to health

care licensure. . . .

"Repeated medical malpractice" is defined as three or more

inciden ts of medical malpractic e committed by a physician.

§ 56.50(1)(h) , Fla. Stat . While "gross medical malpractice" is

not defined in Section 456.50, Florida Statutes, the Department

has not suggested that Dr. Cox committed gross medical

malpractice.

60 . I n paragraph 18 of the Administrative Complaint, it i s

alleged that Dr. Cox violated the Standard of Care in his

treatment of W.T. by:

a. failing to recognize the signs and

symptoms of a post - operative leak in the

bowel, once Patient WT exhibited symptom s of

a bowel leak;

b. failing to perform a post - operative

upper gastrointestinal test on Patient WT

showed symptoms of a bowel leak.

61 . In paragraph 35 of the Administrative Complaint, it is

alleged that Dr. Cox violated the Standard of Care in his

treatment of J.L. "by failing to recognize the signs and

symptoms of a post - operative leak in the bowel at the onset of

leak symptoms ."

62 . The evidence has clearly and convincingly proved that

Dr. Cox violated the Standard of Care as alleged in paragrap hs

18 and 35 as described in the Findings of Fact. Clearly, there

were signs exhibited by both W.T. and J.L. that are typical

signs associated with a Leak . No expert who testified in this

proceeding disagreed with this finding . Dr. Cox should have

taken steps to rule out or substantiate the existence of a Leak

in both patients sooner than he did .

63. Any physician must consider all possible causes for a

the symptoms evidenced by a patient and systematically and

appropriately rule out or confirm the vari ous possible causes of

those symptoms. B oth W.T. and J.L. evidenced symptoms that all

the experts agreed are typical symptoms of a Leak. Dr. Cox

failed to consider one of the most logical causes of the

symptoms evidenced by W.T. and J.L., a Leak, until s ome time

after both patients had exhibited those signs. He did so

without any reasonable medical justification.

64 . The Department has clearly and convincingly proved

that Dr. Cox violated the Standard of Care as alleged in Counts

I and II of the Adminis trative Complaint.

E . Count III; Violation of Section 458.331(1)( m ), Florida

Statutes; Medical Records .

65 . Section 458.331(1)(m), Florida Statutes, defines the

following disciplinable offense:

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 diagnos tic 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 a nd

hospitalizations.

66 . Florida Administrative Code Rule 64B8 - 9.003(2)

describes the type of medical records a physician must maintain

in order to avoid discipline under Section 458.331(1)(m),

Florida Statutes:

. . . .

( 2) A licensed physician sha ll maintain

patient medical records in English, in a

legible manner and with sufficient detail to

clearly demonstrate why the course of

treatment was undertaken.

(3) The medical record shall contain

sufficient information to identify the

patient, suppor t the diagnosis, justify the

treatment and document the course and

results of treatment accurately, by

including, at a minimum, patient histories;

examination results; test results; records

of drugs prescribed, dispensed, or

administered; reports of consul tations and

hospitalizations; and copies of records or

reports or other documentation obtained from

other health care practitioners at the

request of the physician and relied upon by

the physician in determining the appropriate

treatment of the patient.

. . . .

67. The evidence proved clearly and convincingly that

Dr. Cox failed to document why he waited from August 5, 2005,

until August 7, 2005, to repair J.L.'s Leak, which was

inconsistent with Florida Administrative Code Rule 64B8 - 9.003,

and in viola tion o f Section 458.331(1)(m), Florida Statutes.

F . The Appropriate Penalty .

68 . In determining the appropriate punitive action to

recommend to the Board in this case, it is necessary to consult

the Board's "disciplinary guidelines," which impose restric tions

and limitations on the exercise of the Board's disciplinary

authority under Section 458.331, Florida Statutes. See Parrot

Heads, Inc. v. Department of Business and Professional

Regulation , 741 So. 2d 1231 (Fla. 5th DCA 1999).

69 . The Board's guide lines are set out in Florida

Administrative Code Rule 64B8 - 8.001, which provides the

following "purpose" and instruction on the application of the

penalty ranges provided in the Rule:

(1) Purpose. Pursuant to Section

456.079, F.S., the Board provides w ithin

this rule disciplinary guidelines which

shall be imposed upon applicants or

licensees whom it regulates under Chapter

458, F.S. The purpose of this rule is to

notify applicants and licensees of the

ranges of penalties which will routinely be

imposed unless the Board finds it necessary

to deviate from the guidelines for the

stated reasons given within this rule. The

ranges of penalties provided below are based

upon a single count violation of each

provision listed; multiple counts of the

violated pro visions or a combination of the

violations may result in a higher penalty

than that for a single, isolated violation.

Each range includes the lowest and highest

penalty and all penalties falling between.

The purposes of the imposition of discipline

are t o punish the applicants or licensees

for violations and to deter them from future

violations; to offer opportunities for

rehabilitation, when appropriate; and to

deter other applicants or licensees from

violations.

(2) Violations and Range of Penaltie s.

In imposing discipline upon applicants and

licensees, in proceedings pursuant to

Section 120.57(1) and 120.57(2), F.S., the

Board shall act in accordance with the

following disciplinary guidelines and shall

impose a penalty within the range

correspondi ng to the violations set forth

below. The verbal identification of

offenses are descriptive only; the full

language of each statutory provision cited

must be consulted in order to determine the

conduct included.

70 . Florida Administrative Code Rule 64B8 - 8.001(2)(m)

provides, in pertinent part, for a penalty for a violation of

Section 458.331(1)(m), Florida Statutes, of a reprimand to

denial of licensure or two years ' suspension , followed by

probation, and an administrative fine of from $1,000.00 to

$10,0 00.00.

71 . Florida Administrative Code Rule 64B8 - 8.001(2)(t)3.

provides, in pertinent part, for a penalty for a violation of

Section 458.331(1)(t), Florida Statutes of from two years’

probation to revocation, and an administrative fine of $1,000.00

to $10 ,000.00.

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

provides that, in applying the penalty guidelines, the following

aggravating and mitigating circumstances are to be taken into

account:

(3) Aggravating and Mitigating

Circumstances. Based upo n 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 pub lic 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 o f 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

inuring to the applicant or licensee;

(g) The involvement in any violation of

Section 458.331, Florida Statutes, of the

provision of controlled substances for

trade, barter or sale, by a licensee. In

such cases, the Board will deviate from the

penalties recommend ed above and impose

suspension or revocation of licensure;

(h) Any other relevant mitigating

factors.

73 . In Petitioner's Proposed Recommended Order, the

Department has suggested that there are two aggravating

circumstances. The Department has reques ted that it be

recommended that Dr. Cox receive a reprimand, be placed on

probation for two years, with terms to be set by the Board, and

be required to pay a fine of $15,000.00.

74 . Having carefully considered the facts of this matter

in light of the pro visions of Florida Administrative Code Rule

64B8 - 8.001, it is concluded that the Department's suggested

penalty is reasonable.

G. The Admissibility of Dr. Marema's Deposition Testimony .

75. Dr. Cox objected to the admission of Dr. Marema's

deposition te stimony, arguing that he had rendered no opinions

relevant to this matter and because of his participation in the

peer review process at the hospital where W.T. and J.L. were

treated. Both arguments are rejected.

76. Dr. Cox's first argument goes to the weight to be

afforded Dr. Marema's testimony, not to whether it is

admissible.

77. As to his second argument, Section 395.0193(8),

Florida Statutes (2006), govern the admissibility of, among

other things, the testimony of individuals who testify during

pe er review investigations and proceedings:

(8) The investigations, proceedings, and

records of the peer review panel, a

committee of a hospital, a disciplinary

board, or a governing board, or agent

thereof with whom there is a specific

written contract f or that purpose, as

described in this section shall not be

subject to discovery or introduction into

evidence in any civil or administrative

action against a provider of professional

health services arising out of the matters

which are the subject of evalu ation and

review by such group or its agent, and a

person who was in attendance at a meeting of

such group or its agent may not be permitted

or required to testify in any such civil or

administrative action as to any evidence or

other matters produced or p resented during

the proceedings of such group or its agent

or as to any findings, recommendations,

evaluations, opinions, or other actions of

such group or its agent or any members

thereof. However , information, documents,

or records otherwise available f rom original

sources are not to be construed as immune

from discovery or use in any such civil or

administrative action merely because they

were presented during proceedings of such

group, and any person who testifies before

such group or who is a member o f such group

may not be prevented from testifying as to

matters within his or her knowledge, but

such witness may not be asked about his or

her testimony before such a group or

opinions formed by him or her as a result of

such group hearings . [Emphasis ad ded].

7 8 . Having cited no other authority for the exclusion of

Dr. Marema's testimony, it is concluded that Dr. Marema's

testimony comes within the exception to the prohibition of

Section 395.0193(8), Florida Statutes (2006). Nothing in his

testimony re lated any testimony "before such a group or opinions

formed by him . . . as a result of such group hearings."

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the a final order be entered by the Board

of Medicine finding that Samuel Cox, M.D. , has violated Section

458.331(1)( m ) and (t) , Florida Statutes, as alleged in Counts I,

II, and III of the Administrative Complaint ; issuing a

reprimand; placing his license on probation for two years, with

terms to b e established by the Board; and imposing a fine of

$15,000 .

DONE AND ENTERED this 1 9 th day of June, 2007 , in

Tallahassee, Leon County, Florida.

S

___________________________________

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahasse e, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

D ivision of Administrative Hearings

this 1 9 th day of June, 2007 .

COPIES FURNISHED:

Patricia Nelson, Esquire

Assistant General Counsel

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Flo rida 32399 - 3250

Jonathon P. Lynn , Esquire

Marci Strauss, Esquire

Stephens, Lynn, Klein

301 East Las Olas Boulevard, Suite 800

Fort Lauderdale, Florida 33301

Larry McPherson, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Wa y

Tallahassee, Florida 32399 - 1701

Josefina M. Tamayo , General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Dr. Ana M. Viamonte Ros, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahasse e, 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

wi ll issue the final order in these cases.