07-001962PL Department Of Health, Board Of Medicine vs. James C. Dozier, M.D. Status: Closed Recommended Order on Thursday, September 20, 2007.

Summary: Respondent failed to include a pulmonary emolysm in his differential diagnosis.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 07 - 1962 PL

)

JAMES C. DOZIER , M.D., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

P ursuant 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 July 30, 2007, in Vero

Beach , Florida.

APPEARANCES

For Petitioner: Don Freeman

Assistant General Counsel

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Barry A. Postman , Esquire

Lee Cohen , Esquire

Cole, Scott & Kissane, P.A.

1645 Palm Beach Lakes Boulevard

Second Floor

West Palm Beach, Florida 33 4 01

STATEMENT OF THE ISSUES

The issues in this case for determination are whether

Respondent James C. Dozier , M.D., committed the violations of

Chapter 458, Florida Statutes (2003) , as alleged in an

Administrative Complaint filed by the Department of Health on

October 3 , 2006; and, if so, what disciplinary action should be

taken against his license to practice medicine in Florida.

PRELIMINARY STATEMENT

On or about October 3 , 2006, the Department of He alth filed

before the Board of Medicine a two - count Administrative

C omplaint, DOH Case Number 2005 - 61833 , against Respondent James

C. Dozier , M.D., an individual licensed to practice medicine in

Florida. In particular, it is alleged in the Administrative

Complaint that Dr. Dozier committed violations of Section

458.331(1)(m) and (t), Florida Statutes (200 3 )(All references to

Florida Statutes and the Florida Administrative Code are to the

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

coun sel, 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 May 18 , 2007, 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 Number 07 - 1962 PL and was assigned to the undersigned .

The final hearing was scheduled to be held in Vero Beach ,

Florida, on June 26 and 27 , 2007, by Notice of Hearing entered

May 18 , 2007. On June 27 , 2007, an Order Granting Continuance

and Re - Scheduling Hearing was entered granting Petitioner’s

Unopposed Motion for Continuance. The final hearing was

scheduled for July 30 and 31, 2007.

On June 19, 2007, the parties filed a Joint Prehearing

Statement. That pleading contains stipulated facts , which have

been included in this Recommended Order.

During the fi nal hearing, Petitioner presented the

testimony of John Vincent Murray , M.D. , and, by deposition (DVD

and transcript), S .C . Petitioner's Exhibits 1 through 4 and 6

were admitted.

Dr. Dozier testified on his own behalf and presented the

testimony of Rudeig er Lindner , M.D., Dr. Murray, and, by

deposition, Steven G. Ritter, M.D. Respondent's Exhibits 1

through 4 were also admitted.

On e Joint E xhibit was offered and admitted.

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

August 14 , 2007. By Not ice of Filing Transcript entered the

same day, the parties were informed that the Transcript had been

filed and that their proposed recommended orders were to be

filed on or by September 4 , 2007. Petitioner’s Proposed

Recommended Order was filed September 4, 2007. Respondent’s

Recommended Order was technically filed September 5, 2007,

although it was received by facs imile at 6:23 p.m. on

September 14, 2007. The post - hearing proposals of both parties

have been fully considered in rendering this Recommende d Order.

FINDINGS OF FACT

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 inv olving physicians licensed to

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

Fla. Stat.

2. Respondent, James C. Dozier , 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 47971 .

3. Dr. Dozier’s mailing address of record at all times

relevant to this matter is Indian River Memorial Hospital

Department of Emergency Medicine, 1000 36th Street, Vero Beach,

Florida 32960.

4. Dr. Dozier is board - certif ied in Emergency Medicine.

5. Dr. Dozier has previously been subject to license

discipline in Agency for Health C are Administration Case Number

93 - 20295.

B . Patient D.C.

6 . On September 3, 2003, Patient D.C. was 49 years of age

and obese. He was living a largely sedentary lifestyle, having

suffered a work - related spinal injury several years before 2003.

D.C. did not work. He was taking methadone, a powerful narcotic

painkiller used for long - term, chronic pain relief, daily. As a

result of his spinal injury, D. C. spent most of his time at home

and did not engage in significant physical activity.

7 . On September 3, 2003, D.C. experienced an episode of

hard coughing, during which he produced brown sputum.

8 . At approximately 9:15 a.m., September 4, 200 3, D.C.

awoke with sharp, left - sided chest and shoulder pain, and

shortness of breath. The pain in his chest was excruciating and

he had difficulty breathing. Consequently, his wife, S.C . ,

telephoned 9 11 and requested emergency assistance at

approximatel y 9:19 a.m.

C. Transport of Patient D.C. to the Hospital .

9 . Emergency medical services personnel (hereinafter

referred to as “EMS Personnel”), arrived at D.C.’s house at

approximately 9:25 a.m. , September 4, 2003.

10 . What transpired beginning with the arrival of EMS

Personnel and their delivery of D.C. to Indian River Memorial

Hospital (hereinafter referred to as “Memorial Hospital” ), w as

documented in an Indian River County EMS report, Incident

# 014509 (hereinafter referred to as the EMS Report). A copy of

the EMS Report was admitted as Petitioner’s Exhibit 3. As

alleged in the Administrative Complaint, the EMS Report

indicates the following:

a. D.C.’s lung sounds were decreased on the left side with

wheezes in several fields bilaterally and during transport to

the hospital there was no change in his pain, although there was

a decrease in the wheezing;

b. At 9:27 a.m. D.C.’s pulse rate was 110, respiratory

rate was 24 and oxygen saturation level was 92 percent by pulse

oximetry;

c. At 9:39 a.m. D. C.’s pulse rate was 116, respiratory

rate was 24, and oxygen saturation level was 97 percent after

the administration of oxygen by nasal cannula.

11 . A copy of the EMS Report was not provided to Memorial

Hospital until after the events relevant to this ca se. While

the EMS Report notes that EMS Personnel “[t]ransferred care to

ER nurse with report ,” the nature of the “report” was not proved

during the hearing of this matter . Dr. Dozier was not made

aware of the contents of the EMS Report or the “report”

p urportedly made by EMS Personnel to the emergency room nurse .

Nor did he make any effort to inquire about D.C.’s condition

during the time he was in the care of EMS Personnel.

12. While the evidence presented at hearing proved that

Dr. Dozier should have made an effort to inquire about D.C.’s

condition during the time he was in the care of EMS Personnel,

t he charges in this case are limited to Dr. Dozier’s actions

after D.C.’s arrival at Memorial Hospital; there is no

allegation in the Administrative Comp laint relating to any

failure on the part of Dr. Dozier to determine what data EMS

Personnel were aware of or ultimately reported. Most

importantly, while there are allegations of fact concerning what

EMS Personnel determined about D.C.’s condition, the

A dministrative Complaint does not inform Dr. Dozier of how those

facts related to his care of D.C. What was in the EMS Report

is, therefore, ultimately no t relevant in deciding whether the

allegations of the Administrative Complaint have been proved.

13 . Counsel for the Department has accurately reported

parts of the EMS Report in pa ragraphs 23 through 32 of

Petitioner’s Proposed Recommended Order and counsel for

Dr. Dozier have accurately summarized some of the information

contained in the EMS Report in t heir proposed finding of fact 8 .

Those proposed findings of fact , although accurate, have not

been included in this Recommended Order because they relate to

information which Dr. Dozier never had at the times relevant to

this case.

D. Dr. Dozier’s Treatm ent of Patient D.C.

14 . EMS personnel delivered D.C. at Memorial Hospital at

approximately 9:54 a.m. , September 4, 2003.

15 . It was documented in the Emergency Room (hereinafter

referred to as the “ER”), nurse’s notes, that D.C., upon

arrival, reported t hat he had suffered a severe coughing spell

the night before, experienced increased shortness of breath,

coughed up dark brown sputum, and had felt sharp left - side chest

pain.

16 . It was also documented that D.C.’s oxygen saturation

was 94 percent on supp lemental oxygen; he was experiencing the

highest level of left - sided chest pain , pain that increased with

deep breaths; he was awake, alert, and oriented; his complexion

was normal in color; his pulse rate was 99 beats per minute; and

his respiratory rate was 22 breaths per minute.

17 . An ER nurse noted that D.C. had a history of spinal

surgery and was taking methadone.

18 . Another ER nurse saw D.C. at approximately 10:00 a.m.

The nurse noted in the record that D.C. was suffering sharp pain

on inspiratio n, his oxygen saturation had increased to

97 percent on two liters of supplemental oxygen, and that he had

decreased breath sounds on the left side of his chest.

19 . One of the nurses who saw D.C. ordered blood tests,

including a complete blood count, car diac markers, a

differential, and a complete metabolic panel. The blood tests

were subsequently cancelled. The only documentation in D.C.’s

medical records at Memorial Hospital indicate s that the tests

were cancelled at 10:15 a.m. with a notation “Cancel led

Requested by Nurse/MD PER DR DOZIER ,” although Dr. Dozier did

not first see D.C. until approximately 10:15 a.m. Dr. Dozier

testified at final hearing that the tests had been cancelled at

D.C.’s request. There are no medical notes to substantiate this

testimony.

20 . Dr. Dozier documented his care of D.C. in an “Any

Complaint Template” form with a t ime stamp of 10:17:33 a.m.

Dr. Dozier noted in the Any Complaint Template that D.C. was

suffering from sharp, left - sided chest pain of several hours

durati on with splinting (stiffening of the body to avoid pain

caused by movement) and decreased breath sounds on the left

side.

21 . Dr. Dozier also documented that D.C.’s past medical

history included chronic pain that was being treated by

methadone.

22 . Dr. D ozier ord ered a chest X - ray and an EKG. He also

started D.C. on Toradol, a non - steroidal , anti - inflammatory drug

used for pain relief, and Levaquin, an antibiotic. The chest X -

ray and EKG were document ed in the Any Complaint Template.

23 . The EKG perfor med on D.C . was normal. His chest X - ray

was interpreted by the radiologist as norm al, except that he was

exhibiting poor inspiratory effort.

24 . Dr. Dozier, under “ differential diagnosis, ” listed

pleurisy (an inflammation of the lining of the chest wall and

lungs marked by chest pain that increases on inspiration) first

and pneumonia (an infection of the lungs marked by a sever e

cough, chest pain, and fever) second.

25 . A “differential diagnosis” was explained by

Dr. Murray:

Differential diagnosis is w hen you have a

patient that comes into the emergency room

and he has this constellation of signs and

symptoms and risk factors. You try to put

it together, you make a list, here’s all the

possible things that could be wrong with

this guy. So that’s your differential

diagnosis. What are the possibilities here

with what I have to look at. So you list

our differential diagnosis.

Transcript, page 39, lines 22 - 25, and p age 40, Lines

1 - 4.

26 . Based upon the information which Dr. Dozier had

concerning D.C., while pleurisy and pneumonia were reasonably

included in his differential diagnosis, he should have also

considered myocardial infarction, bronchitis, and, most

significantly, pulmonary embolus. Of significance in this case,

is Dr. Dozier’s failure to inc lude pulmonary embolus in his

differential diagnosis.

27 . Pulmonary embolus is a condition whereby the arteries

in the lungs are blocked by one or more blood clots. A

pulmonary embolism usual ly occurs when blood clots that have

formed in the veins of a p erson’s extremities dislodge and are

transported by the blood stream to the lungs where they become

trapped by smaller arteries.

28 . The formation of blood clots in the extremities is

called deep vein thrombosis (hereinafter referred to as the

“DVT”).

29 . When blood clots become lodged in the lungs, the lungs

can be damaged or, if blood flow becomes to o constricted, the

person can die.

30 . Pulmonary embolisms are encountered in emergency rooms

with some frequency.

31 . In determining whether a person is suffering from

pulmonary embolus, the common risk factors must be considered.

Those risk factors include a history of previous pulmonary

embolus or DVT; immobilization ( the person is confined to bed,

sedentary, or has recently taken a long trip); s moking; obesity;

hypercoagulablity (increased tendency of the blood to clot); and

cancer.

32 . The most common signs of pulmonary embolus are chest

pain, usually of sudden onset and which becomes worse with deep

breathing or coughing; shortness of breath, again o f a sudden

nature; sweating; nausea; rapid breathing or tachypnea;

increased heart rate or tachycardia; low oxygen saturation; and

hemotysis or coughing up blood.

33 . Making it difficult to diagnose, a patient with a

pulmonary embolism may present with va rious combinations of

symptoms, and the symptoms are often similar to those of other

ailments, such as heart attack, bronchitis, pleurisy,

pneumothorax, acid reflux, dissecting thoracic anerurysm, and

pneumonia.

34 . Tests which can assist a physician in t he either

confirming or ruling out a pulmonary embolism, include

ventilation/perfusion scanning (hereinafter referred to as “V/Q

Scanning”), d - dimer testing, spiral computerized axial

tomography, pulmonary angiography, and Doppler ultrasound.

While not al l of these tests were available to Dr. Dozier, V/Q

Scanning was.

35 . Pulmonary embolus should have been included in Dr.

Dozier’s differential diagnosis of D.C. because D.C. arrived at

the ER with a chief complaint of chest pain and, as explained by

Dr. Mu rray because of the following:

Now, what would even make [pulmonary

embolus] more likely, and perhaps having to

pursue a little bit more, is the type of

pain that he had, which is important to tell

the difference between a lot of those

conditions. He ha d pleuritic pain. That’s

the classic type of chest pain that somebody

with a pulmonary embolus has as classically

described as pleuritic sharp chest pain.

That’s what this patient had.

Then what was the onset? Was this gradual

onset or sudden? P[ulm onary] E[mbolism]s

are sudden onset.

As far as I can tell, when it says in

timing, it says symptoms for, now I can’t

read that, how many that is, but he had

circled hours. So I can just assume that he

told Dr. Dozier that he was having these

symptoms j ust for however many hours that

stands for.

So I was worried about the chest pain, the

nature of the chest pain, the short duration

of it, that I think it says brownish – or

I’m not even – I would cough brownish

sputum. I think that’s what it says, but I

couldn’t say for sure under history of

present illness, which would make me worry

about that.

Transcript, page 85, l ines 3 - 23.

36 . D.C.’s history of acute onset shortness of breath and

severe left - side pleuritic chest pain, his possible hemoptysis

the night before his arrival at Memorial Hospital, and his

elevated pulse and re spiratory rates, all facts that were

documented in the medical records for D.C. at Memorial Hospital,

should have caused Dr. Dozier to include pulmonary embolus in

his differentia l diagnosis.

37 . As a result of the fact that he did not consider

pulmonary e mbolus as a possible ailment, Dr. Dozier failed to

order tests which could have helped him to rule out pulmonary

embolus or led him to conclude that D.C. was suffering from the

a ilment . In particular, he failed to order a V/Q scan .

38 . Ultimately, Dr. Dozier released D.C., listing as his

final diagnoses pleurisy and bronchitis (inflammation of the

bronchial tubes marked by painful cough and fever). Dr. Dozier

prescribed Vioxx, a non - steroidal anti - inflammatory drug,

Levaquin, and Flexeril (a central nervous system depressant,

commonly r eferred to as a “muscle relaxer ” ) .

E . Cancellation of the Blood Tests .

39 . As noted in Findings of F act 19 , blood tests ordered

for D.C. were u ltimately cancelled. According to Dr. Dozier,

they were cancelled because D.C. refus ed the tests, a suggestion

that was not document ed by Dr. Dozier in D.C.’s medical records ,

despite the seriousness of a patient refusing tests which a

physician prescribe s. Given the significance of the

consequences of such a refusal, Dr. Dozier’s testimon y on this

point is questionable and rejected as not convincing.

40 . Other facts also raise concerns about the credibility

of Dr. Dozier’s testimony concerning the cance llation of the

blood tests . For example, S.C. saw D.C. approximately an hour

after his arrival at the hospital and found him quiet , pale, and

loo king very ill. At no time did D.C. or Dr. Dozier , whom she

had spoken with, inform S.C. that D.C. had refused blood tests.

It is also noted that D.C. did not refuse other tests, including

the chest X - ray and EKG ordered by Dr. Dozier.

41 . Ultimately, Dr. Dozier’s explanation concerning the

cancellation of the blood tests was not convincing, based upon

findings made in this Recommended Order and because of the

troublesome aspect s of his testimony as explained in paragraph

51 of Petitioner’s Proposed Recommended Order , which is

incorporated by reference . Despite this conclusion , ultimately,

it was the Department’ s burden to prove why the blood tests were

cancelled. This the Department simply did not do. Ultimately

the evidence simply proved that the tests were ultimately

cancelled.

42 . Regardless of why the blood tests were cancelled,

Dr. Dozier violated the st andard of care, as found , infra .

F . Instructions on Discharge .

43 . On discharge, D.C. was given the following written

instructions on a pre - printed form:

a. The doctor thinks your symptoms may be

due to: PLEURISY. Keep this in mind:

DIAGNOSIS WITH 10 0% CERTAINTY IS NOT

POSSIBLE in the Emergency Department.

Therefore, if you find you are not getting

better, another diagnosis is possible, and

you must see your doctor or return here.

b. After you leave, you must properly care

for your problem and obse rve its progress.

If you do not improve as expected, or are

worse, do one of the following.

Immediately: contact your doctor or follow

up doctor or cal l here [the ER].

c. Contact your doctor, call, or return

here if you experience any of the following :

A) high fever or chills B) difficulty

breathing C) difficulty; swallowing or

drooling D) pain or tightness in chest or

neck E) thick green or bloody sputum F) fast

pulse (more than 100 a minute at rest) G)

vomiting.

d. Your symptoms should improve wit hin 4 - 6

days and should not worsen. You should be

able to breathe comfortably when sitting or

lying down, and should not be struggling to

breathe. You should be able to eat, drink,

and swallow without pain or drooling.

e. Rest, drink plenty of fluids, and eat

regular well - balanced meals. Use

Acteminophen (Tylenol, etc.) for pain or

fever, and take any prescribed medications.

A cool - mist vaporizer may help decrease

cough and discomfort. DO NOT use a hot mist

vaporizer of hot steam. DO NOT smoke durin g

your illness; smoking will delay your

recovery.

44 . The forgoing instructions were consistent with Dr.

Dozier’s diagnosis of pleurisy or bronchitis. Having failed to

consider pulmonary embolus, the instructions were inadequate in

failing to address th is possible condition.

G . The Standard of Care .

45 . The Department's expert, John V. Murray , M.D.,

credibly opined that Dr. Dozier 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 "Standard of Care"), in his

treatment of D.C.

46 . In particular, it was Dr. Murray ’s opinion that

D r. Dozier violated the Standard of Care by fa iling to recognize

the possibility that D.C. was experiencing a pulmonary embolism

and , as a consequence, by failing to include pulmonary embolus

in his differential diagnosis; and by failing to order

diagnostic tests , in particular V/Q Scanning, which may have

either ruled out or confirmed the existence of a pulmonary

embolism . Dr. Murray’s opinion s are credited and accepted.

47 . The opinions to the contrary offered by Dr. Dozier and

his expert witness are rejected as not convincing and as not

addressing the issue s precisely enough. Too much was made of

facts which were not available to Dr. Dozier at the time he made

his differential diagnosis and the consequences thereof, unlike

Dr. Murray, who specifically testified, when asked whether he

attempted “to put yourself in Dr. Dozier’s shoes on the day

these events occurred , ” as follows:

A. Yes, s ir. I think that’s necessary.

If you’re going to make a finding that was

the standard of care, I think the standard

of care relates to what would the prudent

p hysician in the same circumstances on the

same day do. In order to do that, you put

yourself in those shoes.

Say if I was there what would I do and

what would be the standard of care for that,

the minimum.

Transcript, page 33, l ines 22 - 2 5, and page 34 , l ines 1 - 3.

Dr. Murray went on to explain that, although he had learned from

the documents presented to him, information that Dr. Dozier did

not have available while caring for D.C. , he was able to limit

his opinions appropriately to the time of the actu al events and

the information which Dr. Dozier was presented with. The

opinions offered on behalf of Dr. Dozier were not so precisely

limited.

H . Medical Records .

48 . Dr. Dozier failed to document in his medical records

for D.C. whether D.C. was a smoke r or had recently taken any

long trips, both facts which are relevant bits of inf ormation

when considering pulmonary embolus. Dr. Dozier’s medical

records were, therefore, inadequate in this re gard.

49 . Dr. Dozier also failed to give adequate follow - up

i nstructions for pulmonary embolus upon discharge. Dr. Dozier’s

actions, however, were the result, not of his failure to include

pulmonary embolus in his differential diagnosis, but in the

failure to accurately diagnosis D.C.’s condition, a failure for

whi ch Dr. Dozier has not been charged.

I. D.C.’s Demise .

50. On September 6, 2003, D.C. died in his sleep. A

postmortem autopsy of D.C. revealed that he died of “m assive

pulmonary thromboembole due to phlebothromboses of lower

extremities.” It was found that D.C. had an abdominal

malignancy, a significant contributing factor in the death of

D.C.

51. What role, if any , that Dr. Dozier’s failures in his

treatment of D.C. contributed to D.C.’s ultimate demise was not

proved.

CONCLUSIONS OF LAW

A. Jurisdict ion .

52 . 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

45 6.073(5), Florida Statutes (2007 ).

B. The Charges of the Administrative Complaint .

53 . 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 license to practice

medici ne in Florida if a physician commits one or more acts

specified therein.

54 . In its Administrative Complaint the Department has

alleged that Dr. Dozier has violated Section 458.331(1)(m) and

(t), Florida Statutes .

C. The Burden and Standard of Proof .

55 . The Department seeks to impose penalties against

Dr. Dozier’s license through the Administrative Complaint that

include suspension or revocation of his license and/or the

imposition of an administrative fine. Therefore, the Department

has the burden of proving the specific allegations of fact that

support its charge that Dr. Dozier violated Section

458.331(1)(m) and (t), Florida Statutes, by clear and convincing

evidence. Department of Banking and Finance, Division of

Securities and Investor 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 (2007 )("Findings of fact sh all be based on a

preponderance of the evidence, except in penal or licensure

disciplinary proceedings or except as otherwise provided by

statute.").

56 . What constitutes "clear and convincing" evidence was

described by the court in Evans Packing Co. v. D epartment 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 testify must be disti nctly

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 or conviction, witho ut

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 One and Two : Violation of Section 458.331(1)(t),

Florida Statutes, The Standard of Care .

57. Section 458.331(1) (t), Florida 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 construed 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 not be licensed o r 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

disciplined pursuant to this paragraph. A

recommended order by an administrative law

judge or a final order of the board finding

a violation under this paragraph shall

specify whether the licensee was found to

have committed "gross medical malpractice,"

"repeated medical malprac tice," or "medical

malpractice," or any combination thereof,

and any publication by the board must so

specify.

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

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

(g) "Medical malp ractice" 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

incidents of medical ma lpractice 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. Dozier committed gross medical

malpractice.

59 . In paragraph 3 5 of the Administrative Complaint, it is

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

treatment of D.C. by failing to do one or more of the following :

a ) . . . consider the diagnosis of

pulmonary embolism and put it in his

differential.

b) . . . work up the diagnosis of

pulmonary embolism.

c) . . . order a D - dimer test, an[] ABG,

a venous Doppler of the legs, a lung scan or

a spinal CT scan.

60 . The evidence has clearly and convincingly proved that

Dr. Dozier violated the Standard o f Care as alleged in paragraph

35 a) and c) as descr ibed in the findings of f act. Clearly,

Dr. Dozier should have taken steps to rule out or substantiate

the possibility that D.C. was suffering from pulmonary embolus.

He should have included pulmonary embolus in his differential

diagnosis and he should have at least ordered a spinal CT to

either confirm or disprove that diagnosis.

6 1 . The Department has clearly and convincingly proved

that Dr. Dozier violated the Standard of Care as alleged in

Counts O ne of the Administrative Complaint.

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

Statutes; Medical Records .

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

following disciplinable offense:

Failing to keep legible, as defined by

de partment 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 o f consultations and

hospitalizations.

63 . 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 license d physician shall 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, support 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; re ports of consultations 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.

. . . .

64 . In paragraph 38 of the Administrative Complaint, it is

alleged that Dr. Dozier failed to keep legible medical records

that justify the course of D.C.’s treatment in that he failed to

document one or more of the following:

a) . . . an adequate history, including

smoking history, recent trips or family

history of cardiac disease.

b) . . . an appropriate plan or treatment

for the patient’s condition.

c) adequate follow - up care or follow - up

time on the Instructions Sheet g iven to

Patient D.[C]. upon discharge.

65 . The evidence proved clearly and convincingly that

Dr. Dozier ’s failure to document an adequate history, in

particular, smoking history, recent trips, or family cardiac

disease history, in D.C.’s medical records , and the failure to

provide follow - up instructions for pulmonary embolus w ere

inconsistent with Florida Administrative Code Rule 64B8 - 9.003,

and in violation of Section 458.331(1)(m), Florida Statutes.

F. The Appropriate Penalty .

66 . 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 restrictions

and limitations on the exercise of the Board's disciplinary

authority under Section 458.331, Flo rida Statutes. See Parrot

Heads, Inc. v. Department of Business and Professional

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

67 . The Board's guidelines are set out in Florida

Administrative Code Rule 64B8 - 8.001, which provides the

following "purpos e" 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 within

this rule disciplinary guidelines which

shall be imposed upon applicants or

licensees whom it re gulates 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 withi n this rule. The

ranges of penalties provided below are based

upon a single count violation of each

provision listed; multiple counts of the

violated provisions or a combination of the

violations may result in a higher penalty

than that for a single, isol ated violation.

Each range includes the lowest and highest

penalty and all penalties falling between.

The purposes of the imposition of discipline

are to 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 Penalties.

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

corresponding 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.

68 . Florida Administ rative Code Rule 64B8 - 8.001(2)(m )

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

Section 458.331(1)(m), Flo rida 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

$10,000.00.

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

provides, in pertinent part, for a pe nalty 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.

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

provides that, in applying the penalty g uidelines, the following

aggravating and mitigating circumstances are to be taken into

account:

(3) Aggravating and Mitigating

Circumstances. Based upon consideration of

aggravating and mitigating factors present

in an individual case, the Board may de viate

from the penalties recommended above. The

Board shall consider as aggravating or

mitigating factors the following:

(a) Exposure of patient or public to

injury or potential injury, physical or

otherwise: none, slight, severe, or death;

(b) Lega l status at the time of the

offense: no restraints, or legal

constraints;

(c) The number of counts or separate

offenses established;

(d) The number of times the same offense

or offenses have previously been committed

by the licensee or applicant;

(e) The disciplinary history of the

applicant or licensee in any jurisdiction

and the length of practice;

(f) Pecuniary benefit or self - gain

inuring to the applicant or licensee;

(g) The involvement in any violation of

Section 458.331, Florida Statu tes, of the

provision of controlled substances for

trade, barter or sale, by a licensee. In

such cases, the Board will deviate from the

penalties recommended above and impose

suspension or revocation of licensure;

(h) Any other relevant mitigating

fact ors.

71 . In Petitioner's Proposed Recommended Order, the

Department has suggested that there are two aggravating

circumstances: “First, given the missed diagnosis of Patient

D.C.’s pulmonary embolism and his death two days later, D.C. and

his surviving f amily members were clearly exposed to great

physical, emotional and financial injury or potential injury as

a result of Dr. Dozier’s actions in this case.” Secondly, the

Department has pointed to Dr. Dozier’s previous discipline by

the Board.

72 . While i t is true that Dr. Dozier has been previously

disciplined, the alleged first aggravatin g circumstance is

rejected. The evidence failed to prove the extent, if any, to

which Dr. Dozier contributed to or caused D.C.’s death. While

Dr. Dozier has been shown to have failed to make a proper

differential diagnosis , the extent to which this error

contributed to D.C.’s ultimate demise has not been proved.

73. The Department has requested that it be recommended

that Dr. Dozier receive a reprimand ; be required t o pay a fine

of $10,000; be required to serve 100 hours of community service;

be required to complete the Florida Medical Association’s

“quality Medical Record Keeping for health Care Professionals”

course or a Board - approved equivalent; complete five hour s of

continuing medical education in diagnosis and treatment of

pulmonary embolus.

74 . Dr. Dozier has suggested, without legal explanation,

that should he be found to have committed the alleged

violations, that he receive a “letter of concern.” Given the

Board’s guidelines, his request should not be granted.

75 . Having carefully considered the facts of this matter

in light of the provisions of Florida Administrative Code Rule

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

penalty , other than the requirement that Dr. Dozier complete

100 hours of community services, is reasonable. The hours of

community service are rejected because the Department has cited

no authority for the Board to require community service.

RECOMMENDATION

Based on the fo regoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the a final order be entered by the Board

of Medicine finding that James C. Dozier , M.D., has violated

Section 458.331(1)(m) and (t), Florida Statutes, as described in

this Recommended Order ; issuing a reprimand; imposing a fine of

$1 0,00 0.00 ; requiring that he complete the Florida Medical

Association’s “quality Medical Record Keeping for health Care

Professionals” course or a Board - approved equivalent; and

requiring that he complete fi ve hours of continuing medical

education in diagnosis and treatment of pulmonary embolus.

DONE AND ENTERED this 20th day of September , 2007, in

Tallahassee, Leon County, Florida.

S

_____________________ ______________

LARRY J. SARTIN

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 Cler k of the

Division of Administrative Hearings

this 20th day of September , 2007.

COPIES FURNISHED:

Don Freeman , Esquire

Assistant General Counsel

Prosecution Services Unit

Department of Health

4052 Bald Cy press Way, Bin C - 65

Tallahassee, Florida 32399 - 3250

Barry A. Postman , Esquire

Lee Cohen , Esquire

Cole, Scott & Kissane, P.A.

16 45 Palm Beach Lakes Boulevard

Second Floor

West Palm Beach, Florida 33 4 01

Larry McPherson, Executive Director

Board of Medici ne

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Dr. Ana M. Viamonte Ros, Secretary

Department of Healt h

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit w ritten 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 these cases.