07-000659PL Department Of Health, Board Of Medicine vs. Stephen W. Thompson, M.D. Status: Closed Recommended Order on Wednesday, October 31, 2007.

Summary: Respondent did not fall below the standard of care when he left the operating room to deliver a baby and then return to complete the procedures. He was at a facility 2 minutes away, and meanwhile, unsterile instruments had to be sterilized.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE , )

)

Petitioner , )

)

vs. ) Case No. 07 - 0659PL

)

STEPHEN W. THOMPSON, M.D. , )

)

Respondent . )

)

RECOMMEND ED ORDER

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

on July 27, 2007, in Naples, Florida, before Susan B. Harrell, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Matthew Casey, Esquire

Department of Health

4052 Bald Cypress Way Bin C - 65

Tallahassee, Florida 32399

For Respondent: Bruce McLaren Stanley, Esquire

Henderson, Franklin, Starnes & Holt

Post Office Box 280

Fort Myers, Florida 33901

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated

Subsection s 458.331(1)( m ) and 458.331(1)(t) , Florida Statutes

(2003) , 1 and, if so, what discipl ine should be imposed.

PRELIMINARY STATEMENT

On November 2, 2006, the Department of Health (Department)

filed with the Board of Medicine, an Administrative Complaint

against Respondent, Stephen W. Thompson, M.D. (Dr. Thompson),

alleging that Dr. Thompson violated Subse ction 458.331(1)(t),

Florida Statutes, relating to P atient T.C. by failing 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 ci rcumstances.

Dr. Thompson requested an administrative hearing, and the case

was forwarded to the Division of Administrative Hearings on

February 8, 2007, for assignment to an Administrative Law Judge

to conduct a final hearing.

The final hearing was sched uled for March 29, 2007.

Dr. Thompson filed a motion to continue the final hearing, and

the motion was granted. The final hearing was rescheduled for

June 19, 2007. The Department filed a motion to continue, and

the case was rescheduled for July 27, 20 07.

On July 10, 2007, the Department filed a motion to amend

the Administrative Complaint, which was granted by O rder dated

July 13, 2007. The Amended Administrative Complaint added a

count relating to a violation of Subsection 458.331(1)(m),

Florida Stat utes.

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.

At the final hearing , the Department requested official

recognition of Subsections 458.331(1)(m) and 458.331(1)(t),

Florida Statutes, and Florida Administrative Code Rule 64B8 -

8.001. Official recognition was taken of those statutes and

that rule.

At the final hearing, the De partment called Jose Cortes,

M.D., as its witness. Petitioner’s Exhibits 1, 2, and 3 were

admitted in evidence.

At the final hearing, Dr. Thompson testified in his own

behalf and called Lawrence Antonucci, M.D., as his witness.

Respondent’s Exhibits D, E , F, G, H, I, J, and K were admitted

in evidence.

The one - volume T ranscript was filed on August 27, 2007.

Dr. Thompson filed a Motion for Extension of Time to File

Proposed Recommended Order, which was granted. The time for

filing proposed recommended orders was extended to September 12,

2007. The parties timely filed their P roposed R ecommended

O rders, which have been considered in the rende ring of this

Recommended Order.

FINDINGS OF FACT

1. The Department is the state agency in Florida charged

with r egulating the practice of medicine pursuant to

Section 20.43, Florida Statutes, and Chapters 456 and 458,

Florida Statutes.

2. At all times material to the Amended Administrative

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

State of Flori da, having been issued license number ME 44112.

Dr. Thompson is board - certified by the American Board of

Obstetrics and Gynecology with a General Certificate in

Obstetrics and Gynecology.

3. On July 18, 2003, T.C., a 41 - year - old female, presented

to Dr. Thompson with complaints of very heavy menstrual bleeding

with clots lasting four days. She was requesting a

hysterectomy. T.C. had been a patient of Dr. Thompson for

17 years. She had been complaining of heavy menstrual bleeding

for two years, and Dr. Thompson had prescribed birth control

pills, which seemed to help at first, but by July 18, 2003, were

no longer relieving the symptoms of heavy bleeding.

4. Dr. Thompson ordered a vaginal ultrasound, which

revealed two uterine fibroids that were submuco us in location.

The fibroids were the likely cause of T.C.’s heavy bleeding.

5. On August 12, 2003, T.C. returned to Dr. Thompson’s

office for a surgical consult. Dr. Thompson discussed the

alternative of a laparoscopic hysterectomy rather than an

abdom inal hysterectomy. Dr. Thompson also discussed

alternatives to a hysterectomy to resolve T.C.’s problems,

including a hysteroscopy, a dilation and curettage (D&C), a

thermal ablation, a myomectomy, an Essure procedure, and a

bilateral tubal ligation with laparoscopy. The thermal ablation

involves the injection of a liquid material into the uterus and

the heating of the liquid to cauterize the lining of the uterus.

A myomectomy is the removal of the fibroids. The Essure

procedure was to provide permanent birth control. T.C. chose to

have the hysteroscopy, the D&C, the ablation, the myomectomy,

and the Essure procedure.

6. The procedures were scheduled for September 11, 2003,

at the Naples Day Surgery, which is a freestanding surgical

ambulatory center. T.C. went to see Dr. Thompson on

September 9, 2003, to fill out the paperwork for the surgical

procedures and to again discuss the options available to her.

Dr. Thompson did discuss the options available to her and signed

the consent form in the presenc e of T.C., indicating that he had

discussed the reasonable alternatives with T.C. and that she had

been informed about the foreseeable risks and benefits of the

procedures that she had chosen.

7. Around 8:00 a.m. and 9:00 a.m. on September 11, 2003,

Dr. T hompson was informed that one of his obstetrical patients

(obstetrical patient) was in labor with her first child at The

Birth Place at North Collier Hospital, which is across the

street from the Naples Day Surgery. Dr. Thompson examined the

obstetrical p atient.

8. Dr. Thompson had arranged for Dr. Beckett to provide

coverage for his patients, including the obstetrical patient,

while Dr. Thompson was performing surgery on T.C. at the Naples

Day Surgery.

9. At approximately 11:40 a.m. , on September 11, 20 03,

T.C. presented at the Naples Day Surgery for the procedures.

Again, Dr. Thompson reviewed the procedures with T.C. and

discussed alternatives and the risks and benefits of the

procedures that were to be done.

10. Prior to beginning surgery on T.C., D r. Thompson was

notified by the nurses at The Birth Place that the obstetrical

patient’s labor was progressing. Dr. Thompson prescribed some

pain medication for the obstetrical patient and advised the

nurses that he was going into surgery and that Dr. Bec kett would

be covering for him with the obstetrical patient.

11. Dr. Thompson began surgery on T.C. and performed the

hysteroscopy and D&C. During the hysteroscopy, it was noticed

that there was a problem with the hysteroscope being used and

that it woul d not fit the Essure device that would be used

later.

12. Prior to Dr. Thompson beginning the thermal ablation

procedure, he was informed by telephone that the obstetrical

patient was making rapid progress and that Dr. Beckett was stuck

in traffic and pro bably would not get to The Birth Place in time

to deliver the baby. Dr. Thompson instructed the nurse at The

Birth Place to find any available physician because he was in

surgery.

13. Dr. Thompson performed the thermal ablation. At the

end of the proced ure, it was determined that the instrument

necessary to perform the Essure procedure was not in the

operating room and that the instruments needed for the

myomectomy were not sterile. It was necessary that the

instrument needed for the Essure procedure be located and that

the instruments for the myomectomy be flash sterilized, which

would take about 15 minutes.

14. While in the operating room, Dr. Thompson received

another telephone call from The Birth Place. The nurse advised

Dr. Thompson that no physic ian was available in - house to deliver

the baby and that no other physician could be located quickly

enough to get to The Birth Place in time to deliver the baby.

The essence of the telephone call to Dr. Thompson was that if a

physician did not get to The Birth Place quickly that the baby

would be delivered without an attending physician.

15. At the time Dr. Thompson received the last telephone

call from The Birth Place, T.C. was in stable condition and

nothing further could be done until the instruments f or the

myomectomy were sterilized and an appropriate scope was located

for the Essure procedure. Dr. Thompson made the decision to

leave T.C. with the anesthetist and go across the street to

deliver the baby. He informed the surgical team that he was

goi ng to deliver the baby and would be back as quickly as

possible.

16. Since The Birth Place is directly across the street

from the Naples Day Surgery, it took Dr. Thompson about one or

two minutes to get to the delivery room at The Birth Place. He

left th e operating room at the Naples Day Surgery at 13:35. He

delivered the baby without complications and returned to the

operating room at the Naples Day Surgery by 13:50. At that

time, the instruments were sterilized for the myomectomy, and

the proper scope had been located for the Essure procedure.

Dr. Thompson performed the myomectomy and the Essure procedure

without complications.

17. The head nurse at the Naples Day Surgery advised

Dr. Thompson that she would prepare a variance report that noted

his absence from the operating room from 13:35 to 13:50.

Dr. Thompson’s physical presence during the delivery was noted

in the records of The Birth Place.

18. It is not uncommon for a physician to leave the

operating room during a procedure to use the restr oom or get a

drink of water. It also is not uncommon during an operation for

a physician to have to wait for the results of a frozen section

biopsy, which can take 30 minutes , or to have to wait during a

procedure while a new instrument is obtained to rep lace a broken

instrument.

19. While Dr. Thompson was at The Birth Place, the

operating room personnel at the Naples Day Surgery knew where

Dr. Thompson was, what he was doing, and how to reach him.

There were multiple means of communications between both

locations including cell telephones, cordless telephones, and

hard - wired telephones.

20. Dr. Thompson did not notify T.C. that he left the

operating room and the building between performing surgical

procedures on her.

21. Jose H. Cortes, M.D., testified as an expert witness

on behalf of the Department. Dr. Cortes has been licensed to

practice in Florida since 1979. He is board - certified by the

American Board of Obstetrics and Gynecology. Dr. Cortes

currently specializes in gynecology with the Clevelan d Clinic in

Weston, Florida. From 2001 to 2006, he served as an a ssistant

p rofessor of Clinical Obstetrics and Gynecology for the

University of Miami.

22. It is Dr. Cortes’ opinion that Dr. Thompson fell below

the standard of care when he left T.C. in th e operating room to

go to another building to deliver a baby. His opinion is based

on Dr. Thompson 's having no way of knowing when he left T.C. if

the delivery would be complicated and would delay his return to

the operating room. Dr. Cortes opined that Dr. Thompson should

have cancelled the remaining procedures for T.C. and gone to

deliver the baby.

23. Dr. Cortes also opined that Dr. Thompson fell below

the standard of care by not documenting in his medical notes his

absence during the delivery of the baby and by not telling T.C.

that he had left the building to deliver a baby while T.C. was

in the operating room. It was his opinion that T.C. should have

been made aware of the delay between her procedures because the

increased time under anesthesia cou ld result in possible

complications at a later time.

24. During his practice of medicine, Dr. Cortes has had to

wait for the results of a frozen section during an operation and

the delay has been as long as 20 to 30 minutes. Dr. Cortes

opined that as lon g as the patient was stable it was within the

standard of care for the physician to leave the operating room

during this delay. He did not indicate whether in the case of

waiting for the results of a frozen section, the physician was

required to note in t he medical records the delay and tell the

patient of the delay after the operation.

25. Lawrence R. Antonucci, M.D., testified as an expert

witness for Dr. Thompson. Dr. Antonucci has been practicing as

a physician since 1983 and is board - certified in ob stetrics and

gynecology. It is Dr. Antonucci’s opinion that Dr. Thompson was

faced with very unusual circumstances because he had to make a

decision on which patient needed him the most. Based on the

circumstances, Dr. Antonnuci opined that Dr. Thompson met the

standard of care when he left the operating room to deliver the

baby. The operation with T.C. was delayed while the instruments

were being sterilized and a scope was being located. T.C. would

have remained under anesthesia during the delay regard less if

Dr. Thompson had left the operating room or stayed. Once

Dr. Thompson got to The Birth Place he could assess the

situation, and, if necessary, he could call the Naples Day

Surgery and cancel the additional procedures for T.C.

26. Dr. Antonucci a lso opined that Dr. Thompson did not

depart from the standard of care when he did not put in his

medical notes that he had left the operating room to go across

the street to deliver a baby. He was of the opinion that the

medical records were adequate to a dvise future health care

providers of the procedures that were done. It was also his

practice not to put in the medical notes when there was a delay

due to waiting for the results of a frozen section.

27. Dr. Antonucci opined that Dr. Thompson’s failure to

tell T.C. that he had been absent from the operating room for

15 minutes did not fall below the standard of care.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

procee ding. §§ 120.569 and 120.57, Fla. Stat. (2007).

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

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

test imony 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

tru th 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. Thompson violated

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

which provide :

(1) Th e following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072:

* * *

(m) Failing to keep legible, as defined by

department rule in consultation with the

board, medical records that identify the

li censed 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

treatme nt 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) Gross or repeated malpr actice 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. The board

shall give great weight to the provisions

of s. 766.102 when enforcing this

paragraph. . . . As used in this paragraph,

“gross 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,” shall not be construed

to require that a physician be incompetent

to practice medicine in order to be

disciplined pursuant to this paragraph.

31. In Count I of the Amended Administrative C omplaint,

the Department alleged that Dr. Thompson violated Subsection

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

ways:

a. By leaving T.C. for several minutes in

the middle of surgery and in between

procedures, while T.C. was under g eneral

anesthesia;

b. By failing to notify the patient that

Respondent had left the building in the

middle of the surgery;

c. By failing to note in the medical

records that Respondent had left the

building during surgery.

3 2 . The Department has faile d to establish by clear and

convincing evidence that Dr. Thompson violated Subsection

458.331(t), Florida Statutes. Dr. Thompson was faced with an

unusual situation and had to make a decision about which patient

needed him the most. The procedures for T. C. were delayed

because instruments were not sterile and a particular scope was

not available. She was going to be under anesthesia during that

delay regardless of Dr. Thompson’s presence or absence. She was

stable during the delay. Dr. Thompson made th e operating staff

aware of where he was going, and they knew how to reach him if

needed. The Birth Place was located across the street from the

Naples Day Surgery and could be reached within two minutes.

There was communication between The Birth Place an d the Naples

Day Surgery such that Dr. Thompson could be immediately reached.

After Dr. Thompson assessed the obstetrical patient, he could

have cancelled T.C.’s procedures, if he felt that he could not

get back to the operating room because of complicati ons with the

delivery. Based on these circumstances, Dr. Thompson did not

fall below the standard of care.

3 3 . The Department did not establish that Dr. Thompson’s

failure to notify T.C. that he had left the operating room for

15 minutes fell below the s tandard of care. T.C. was going to

have to wait for the instruments to be sterilized and for the

scope to be located, and she would have remained under

anesthesia during those circumstances. No expert testified that

when there is any delay in a surgical procedure the patient has

to be told. It is a common occurrence for physicians to wait

for the results of a frozen section, and such delay can be as

much as 30 minutes. No expert testified that in those

circumstances the patient had to be told of the del ay, and, in

fact, Dr. Antonucci testified that it was his practice not to

advise the patient when there had been a delay waiting for the

results of a frozen section. Dr. Cortes’ rationale for advising

T.C. that there had been a delay was that she needed t o be alert

to any possible effects from the additional anesthesia time.

His rationale does not make sense unless the standard of care

would require that every time there is a delay in surgery due to

unforeseen circumstances that the patient must be advise d of the

circumstances.

3 4 . The Department has failed to establish that

Dr. Thompson fell below the standard of care by failing to

document in his medical notes that he left the operation room

for 15 minutes. The delay to the procedures was caused by

in struments not being sterilized and the unavailability of a

scope , not by Dr. Thompson 's leaving to deliver a baby.

Dr. Thompson took advantage of the delay to deal with another

patient who needed him. Additionally, the head nurse had

advised Dr. Thompso n that she would note his absence in a

variance report.

3 5 . In Count II of the Amended Administrative Complaint,

the Department alleged that Dr. Thompson violated Subsection

458.331(1)(m), Florida Statutes, in the following ways:

[B]y failing to documen t in T.C.’s medical

records that he left the building during the

procedures he performed on T.C. on or about

September 11, 2003, and/or by failing to

document any discussion with T.C. about

alternative treatment options such as

discontinuing oral contracep tives, a formal

dilation and curettage, and/or the use of a

Mirena IUD to addre ss T.C.’s problems or

concerns.

3 6 . The Department has failed to establish by clear and

convincing evidence that Dr. Thompson violated Subsection

458.331(1)(m), Florida Statut es. The standard of care did not

require him to document that he left the building , and

Subsection 458.331(1)(m), Florida Statutes, does not requir e him

to document his absence.

3 7 . The Department has failed to establish that

Dr. Thompson did not discus s any alternative treatment options

with T.C. The evidence did establish that he discussed

treatment options with her on more than one occasion.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

that Dr. Thompson did not violate Subsections 458.331(1)(m) and

458.331(1)(t), Florida Statutes, and dismissing the Amended

Administrative Complaint.

DONE AND ENTERED this 31st day of October , 2007 , in

Tallahassee, Leon County, Flo rida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of October , 2007 .

ENDNOTE

1/ Unless otherwise stated, all references to the Florida

Statutes are to the 2003 version.

COPIES FURNISHED :

Matthew Casey , Esquire

Department of Health

4052 Bald Cypress Way Bin C - 65

Tallahassee, Florida 32399

Bruce McLaren Stanley, Esquire

Henderson, Franklin, Starnes & Holt , P.A.

Post Office Box 280

Fort Myers, Florida 33901

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 par ties 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.