07-002539PL Department Of Health, Board Of Medicine vs. Jorge Rivera, M.D. Status: Closed Recommended Order on Thursday, March 13, 2008.

Summary: Respondent refused to provide anesthesia to patient in need of surgery and left the hospital prior to surgeon`s arriving to perform surgery.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 07-2539PL

)

JORGE RIVERA, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

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

on October 15, 2007, in Fort Myers, Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Diane K. Kiesling, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

For Respondent: John W. Bocchino, Esquire

Bobo, Ciotoli, Bocchino

Newman & Carsini, P.A.

Landmark Center One, Suite 510

315 East Robinson Street

Orlando, Florida 32801-1983

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated

Subsection 458.331(1)(t), Florida Statutes (2001), 1 and, if so,

what discipline should be imposed.

PRELIMINARY STATEMENT

On February 7, 2005, Petitioner, Department of Health

(Department), filed an Amended Administrative Complaint against

Respondent, Jorge Manuel Rivera, M.D. (Dr. Rivera), alleging

that Dr. Rivera violated Subsection 458.331(1)(t), Florida

Statutes. The case was originally forwarded to the Division of

Administrative Hearings (DOAH) on September 8, 2005, and was

assigned DOAH Case No. 05-3250PL. On December 21, 2005,

Petitioner filed a Motion to Relinquish Jurisdiction for the

purpose of presenting the case to the Probable Cause Panel of

the Board of Medicine (Board) for reconsideration. The motion

was granted, and the file of DOAH was closed. The Probable

Cause Panel did not dismiss the case.

On September 8, 2007, the Department again forwarded the

case to DOAH for assignment to an Administrative Law Judge to

conduct the final hearing.

On September 19, 2007, the Department filed a Motion to

Amend Administrative Complaint. The motion was granted, and the

Second Amended Administrative Complaint was filed as of

October 3, 2007.

The parties agreed to certain facts contained in paragraphs

A through E, H, and I of Section 5 of Petitioner’s Unilateral

Pre-hearing Statement and paragraphs (a) through (d) and (i) of

Respondent’s Unilateral Pre-hearing Statement. To the extent

relevant, those facts are incorporated into this Recommended

Order.

At the final hearing, Joint Exhibits 1, 2, and 3 were

admitted in evidence. The Department called the following

witnesses: Pat McClure; Tracy Vo, M.D.; Jorge Rivera, M.D.;

Brian Kurland, M.D.; and Minnea Kalra, M.D. Petitioner’s

Exhibits 1 and 2 were admitted in evidence. Dr. Rivera called

John Patrick, M.D., as his witness. Respondent’s Exhibits 1

through 8, 9A, 9B, and 10 were admitted in evidence.

At the final hearing, the parties agreed to file their

proposed recommended orders within ten days of the filing of the

transcript. The two-volume Transcript was filed on December 12,

2007. The parties filed their proposed recommended orders on

December 24, 2007.

On December 24, 2007, Dr. Rivera filed Respondent Jorge

Rivera, M.D.’s Motion to Have Hearing Transcript Redone and

Retranscribed. The motion was heard by telephonic conference

call on January 7, 2008. Both parties agreed that the

Transcript contains many errors. The motion was granted. The

one-volume Amended Transcript was filed on January 25, 2008.

The parties were allowed ten days after the filing of the

Amended Transcript to file any amendments to their proposed

recommended orders based on the corrections made to the

Transcript. The parties timely filed amended proposed

recommended orders.

FINDINGS OF FACT

1. The Department is the state agency charged with the

regulation of the practice of medicine pursuant to

Section 20.43, Florida Statutes; Chapter 456, Florida Statutes;

and Chapter 458, Florida Statutes.

2. At all times material to the allegations in the Second

Amended Administrative Complaint, Dr. Rivera was a licensed

physician in the State of Florida, having been issued license

number ME 0054619. Dr. Rivera is an anesthesiologist.

3. On May 11, 2002, Patient A.V., an 82-year-old male,

presented to the emergency room of Gulf Coast Hospital (Gulf

Coast) with complaints of shortness of breath. A.V. had a

history of chronic obstructive pulmonary disease. A.V. was

admitted to the hospital by Michele Candelore, D.O.

4. Gulf Coast is a small community hospital with

approximately 150 beds. Southwest Florida Regional Medical

Center (Southwest), a larger tertiary care hospital, is located

three to five miles away from Gulf Coast.

5. On May 16, 2002, Dr. Rivera provided anesthesia

services to A.V. in association with a bronchoscopy. As a

result of providing services to A.V., Dr. Rivera was familiar

with A.V.’s medical conditions and risk factors for anesthesia.

6. On May 18, 2002, Tracy Vo, D.O., was the physician on

call at Gulf Coast. She was providing coverage for A.V.’s

physician, and, around noon on that date, she discharged A.V.

Dr. Vo left Gulf Coast and received a call between 5:00 and

5:15 p.m. that A.V. was complaining of abdominal pain and

nausea. Dr. Vo ordered tests for A.V., including an abdominal

ultrasound.

7. Dr. Vo arrived at Gulf Coast between 5:15 and 5:30 p.m.

She found A.V. to be hypotensive with rapidly decreasing

systolic blood pressure. The results of the ultrasound showed

that A.V. had a 5.3 centimeter abdominal aortic aneurysm (AAA)

with a surrounding collection of fluid. An AAA is a life-

threatening condition. Dr. Vo transferred A.V. to the intensive

care unit (ICU), where she began infusions of fluids and

dopamine in an attempt to elevate A.C.’s blood pressure and to

resuscitate him.

8. Dr. Vo requested a surgical consult. Dr. Harry Black,

the on-call surgeon was not available, and the consult was

referred to Dr. DeMoya, a general surgeon who was covering for

Dr. Black. Dr. DeMoya was in surgery at another hospital and

could not come to Gulf Coast. He was advised that A.C. had an

AAA. Dr. DeMoya recommended that A.C. be transferred to

Southwest, which was better equipped to handle an AAA. Dr. Vo

felt that A.C. was too unstable to transfer at that time.

9. In order to rapidly pump fluids into A.C., Dr. Vo asked

the supervising nurse to contact the on-call anesthesiologist

for a consult for placing a central line. A central line is a

catheter that is passed through a vein, ending up in the

thoracic portion of the vena cava or in the right atrium of the

heart.

10. Dr. Rivera was an employee of Dr. John Patrick, who

was the chief of Anesthesiology at Gulf Coast. Dr. Patrick was

out of town on May 18, 2002, and Dr. Rivera was the on-call

anesthesiologist. Being on call means that the physician gets

called when anesthesia services are needed.

11. Dr. Rivera was contacted concerning the placement of a

central line for A.V. Dr. Rivera got to Gulf Coast between 6:00

and 6:30 p.m. He went to the bedside of A.V. and recognized

A.V. from having provided anesthesia services to A.V. earlier in

A.V.'s admission. Dr. Rivera told Dr. Vo that he did not feel

comfortable placing a central line and refused to do so.

Although he had been taught as a resident to place a central

line, he had not placed a central line since his residency in

1983.

12. Dr. Vo asked the supervising nurse, Ellen Haviland, to

continue her efforts to locate a vascular surgeon. Nurse

Haviland contacted Dr. Brian Kurland, a vascular surgeon.

Dr. Kurland agreed to come to Gulf Coast. Nurse Haviland told

Dr. Rivera that Dr. Kurland was on his way to the hospital, and

Dr. Rivera said that if Dr. Kurland was on his way that Dr.

Kurland could place the central line.

13. Dr. Kurland told the nurse to make sure that the

patient and his family wanted the patient to undergo the surgery

because of the severity of the operation and the risk of not

having a successful outcome. He also ordered that the operating

team be mobilized.

14. After speaking with Dr. Kurland, Nurse Haviland went

to the surgical supply room to make sure that the grafts needed

for the operation were available.

15. Dr. Vo told Dr. Rivera that Dr. Kurland was coming and

that she was going to transfer A.V. to the operating room.

General anesthesia is necessary for an AAA repair. Dr. Rivera

recommended that A.C. be transferred to another hospital and

refused to provide anesthesia to A.C. because he felt that the

risk of giving anesthesia at Gulf Coast was unacceptable.

Dr. Rivera noted his recommendation in the progress notes for

A.V. at 7:00 p.m. Dr. Rivera then left the hospital and went

home. He did not attempt to contact Dr. Kurland directly to

advise Dr. Kurland of his concerns and that he was not going to

provide anesthesia services.

16. Dr. Kurland arrived at the hospital and went directly

to the operating room, where he expected to find the patient and

the operating team. However, no one was in the operating room.

Dr. Kurland went to the ICU, where A.C. was. Dr. Kurland was

advised that A.V. was not in the operating room because

Dr. Rivera had refused to do the anesthesia.

17. Dr. Kurland telephoned Dr. Rivera and told Dr. Rivera

that although A.V. was a high-risk patient and would probably

die, the best chance for saving A.V.’s life was to perform the

surgery at Gulf Coast rather than transferring A.V. to another

hospital. Dr. Rivera refused to come to the hospital to provide

the anesthesia services.

18. Dr. Kurland told the nursing staff to try to get

another anesthesiologist and the chief of surgery. Dr. Kurland

spoke with Dr. Patrick and told him that A.V. needed to have

emergency surgery.

19. Dr. Kurland placed a central line in A.V. to

facilitate the giving of medications and fluids. Dr. Kurland

told A.V.’s family that because they could not get an

anesthesiologist that they had two options, either not to

operate and let A.V. pass away or transfer him to another

hospital for surgery.

20. It was decided to transfer A.V. to Southwest. The

Emergency Medical Services (EMS) personnel were called to

transfer the patient. When the EMS staff arrived, A.V. was

intubated. Shortly thereafter, A.V. went into cardiac arrest

and unsuccessful efforts were made to resuscitate A.V. A.V. was

pronounced dead at 8:16 p.m.

21. After talking with Dr. Kurland, Dr. Patrick called

Dr. Rivera and told him to go to the hospital and provide the

anesthesia because Dr. Kurland had declared an emergency and was

going to perform surgery. Dr. Rivera obeyed Dr. Patrick because

Dr. Patrick “was paying his paycheck” and left his home to go to

the hospital. Shortly after his conversation with Dr. Rivera,

Dr. Patrick was advised that A.V. had died. Dr. Patrick called

Dr. Rivera and told him not to go to the hospital because A.V.

had died.

22. John Downs, M.D., testified as an expert witness for

Dr. Rivera. He is a professor at the University of South

Florida. Dr. Downs is a nationally recognized expert in

anesthesiology, but the last time that he was an on-call

anesthesiologist in a small community hospital similar to Gulf

Coast was in 1985.

23. It was Dr. Down’s opinion that Dr Rivera did not

violate the standard of care by leaving the hospital, by

refusing to perform anesthesia services, and by not telling Dr.

Kurland that he was not going to do the anesthesia prior to Dr.

Kurland’s telephone call to him. It was Dr. Down’s opinion that

Dr. Rivera was not required to give the anesthesia because the

patient would die. Dr. Down’s opinion misses the mark. A.V.

was in a life or death situation. Without surgery, A.V. was

going to die. A.V. was not stable enough to transfer to another

hospital; thus, emergent surgery was necessary if there was

going to be any chance for survival. Dr. Down’s opinion that

Dr. Rivera was not required to perform the anesthesia services

is not credited.

24. Minnea B. Kalra, M.D., testified as the Department’s

expert. Dr. Kalra has practiced for approximately 30 years and

has practiced as an on-call anesthesiologist in small community

hospitals similar to Gulf Coast. In 2002, she was practicing as

an on-call anesthesiologist in a 150-bed community hospital

comparable to Gulf Coast. She has been the on-call

anesthesiologist called to treat emergency AAA’s in small

facilities such as Gulf Coast.

25. It was Dr. Kalra’s opinion that Dr. Rivera should have

tried to get someone else to place the central line if he was

unable to do so.

26. Dr. Kalra opined that Dr. Rivera violated the standard

of care by not staying at the hospital when he knew that

Dr. Kurland, a vascular surgeon, was on his way to the hospital.

An AAA calls for surgery, and it was Dr. Rivera’s duty to stay

with the patient and provide the necessary anesthesia. Dr.

Kalra testified that Dr. Rivera’s last chance to do his duty and

agree to provide anesthesia was when Dr. Kurland advised Dr.

Rivera by telephone that he was taking A.V. to surgery. Dr.

Rivera failed to perform his duty when he told Dr. Kurland that

he was not going to do the anesthesia.

27. Dr. Kalra opined that Dr. Rivera had a duty to remain

at the hospital until Dr. Kurland arrived so that he could

discuss his concerns and the risks of providing anesthesia to

A.V. directly with Dr. Kurland. Dr. Rivera failed to perform

his duty.

28. Dr. Kalra opined that Dr. Rivera had a duty to help

find someone to provide anesthesia services such as placing the

central line when Dr. Rivera could not place the central line

because of lack of competence and would not provide surgical

anesthesia services. Dr. Rivera was the on-call

anesthesiologist, and it was his responsibility to provide the

services or assist in finding an anesthesiologist who could

provide the services. Dr. Rivera failed to do his duty.

29. Dr. Kalra’s opinions that Dr. Rivera did not provide

care to A.V. at a level a reasonably prudent physician under

similar conditions and circumstances is expected to meet are

credited.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2007).

31. The Department has the burden to establish the

allegations in the Second Amended Administrative Complaint by

clear and convincing evidence. See Department of Banking and

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

32. The Department alleges that Dr. Rivera violated

Subsection 458.331(1)(t), Florida Statutes, which provides that

the following acts are grounds for disciplinary action:

(t) Gross or repeated malpractice or the

failure to practice medicine with that level

of care, skill, and treatment which is

recognized by a reasonably prudent similar

physician as being acceptable under similar

conditions and circumstances. The board

shall give great weight to the provisions of

s. 766.102 when enforcing this paragraph. As

used in this paragraph, “repeated

malpractice” includes, but is not limited to,

three or more claims for medical malpractice

within the previous 5-year period resulting

in indemnities being paid in excess of

$25,000 each to the claimant in a judgment or

settlement and which incidents involve the

negligent conduct by the physician. 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 so as to require more than one

instance, event, or act. Nothing in this

paragraph shall be construed to require that

a physician be incompetent to practice

medicine in order to be disciplined pursuant

to this paragraph.

33. The Department alleges that Dr. Rivera failed to

practice medicine with that level of care, skill, and treatment

which is recognized by a reasonably prudent similar physician as

being acceptable under similar conditions and circumstances by

the following acts:

a. By refusing to insert a central line in

Patient A.V.;

b. After refusing to insert a central line

in Patient A.V., by failing to offer

suggestions or assistance to Patient A.V.;

c. By ordering transfer for a patient who

was not his patient;

d. By leaving the hospital and going home

when surgery was imminent for A.V.;

e. By failing to attempt to find other

qualified personnel to come to the hospital

to assist in the care of Patient A.V.;

f. By leaving the hospital without speaking

with the vascular surgeon and telling him

that no anesthesiologist would be there when

he arrived;

g. By refusing to return to the hospital and

administer anesthesia to Patient A.V.

34. The Department conceded in its Proposed Recommended

Order that it failed to establish that Dr. Rivera’s refusal to

insert a central line fail below the standard of care, stating

that Dr. Rivera was not credentialed to insert central lines and

had a valid reason for refusing to insert a central line.

35. The Department failed to establish that Dr. Rivera

ordered the transfer of A.V. Dr. Rivera recommended that A.V.

be transferred.

36. The Department established by clear and convincing

evidence that Dr. Rivera left the hospital after he was told

that Dr. Kurland was coming to the hospital and that surgery was

imminent for A.V. His leaving the hospital fell below the

standard of care.

37. The Department established by clear and convincing

evidence that Dr. Rivera failed to assist in locating another

anesthesiologist to insert the central line and to assist during

an operation on A.V. for the AAA. His failure to assist fell

below the standard of care.

38. The Department established by clear and convincing

evidence that Dr. Rivera failed to remain at the hospital to

discuss his concerns with Dr. Kurland and failed to contact

Dr. Kurland directly prior to Dr. Kurland’s arrival at the

hospital to let Dr. Kurland know that he was not going to

provide anesthesia services. His failure to contact Dr. Kurland

fell below the standard of care.

39. The Department established by clear and convincing

evidence that Dr. Rivera refused to come to the hospital to

provide anesthesia services when Dr. Kurland telephoned him and

told him that he was needed to provide anesthesia services.

Dr. Rivera’s refusal to return to the hospital fell below the

standard of care.

40. The Department has established by clear and convincing

evidence that Dr. Rivera violated Subsection 458.331(1)(t),

Florida Statutes, 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 circumstances.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

that Dr. Rivera violated Subsection 458.331(1)(t), Florida

Statutes; suspending his license for one year followed by a two-

year probation on whatever terms the Board of Medicine sees fit;

imposing a fine of $10,000; requiring that Dr. Rivera complete

three hours of continuing medical education in medical ethics

and five hours in risk management; and requiring that Dr. Rivera

complete 100 hours of community service.

DONE AND ENTERED this 13th day of March, 2008, in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of March, 2008.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2001 version.

COPIES FURNISHED :

John W. Bocchino, Esquire

Bobo, Ciotoli, Bocchino

Newman & Carsini, P.A.

Landmark Center One, Suite 510

315 East Robinson Street

Orlando, Florida 32801-1983

Diane K. Kiesling, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A-02

Tallahassee, Florida 32399-1701

Larry McPherson, Executive Director

Board of Medicine

4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.