07-003405PL Department Of Health, Board Of Medicine vs. Aaron B. Roush, M.D. Status: Closed Recommended Order on Friday, November 16, 2007.

Summary: Physician fell below the standard of care when he failed to obtain additional diagnostic testing.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) )

MEDICINE, )

)

Petitioner, )

) Case No. 07-3405PL

vs. )

)

AARON B. ROUSH, M.D., )

)

Respondent. )

RECOMMENDED ORDER

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

on September 27, 2007, in Winter Haven, Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Jennifer Forshey, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

For Respondent: Aaron B. Roush, M.D., pro se

Kelly E. Speer, Esquire 1

1804 West Baker Street, Suite D

Plant City, Florida 33563

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated

Subsection 458.331(1)(t), Florida Statutes (2004), 2 and, if so,

what discipline should be imposed.

PRELIMINARY STATEMENT

On September 26, 2006, Petitioner, Department of Health

(Department), filed a one-count Administrative Complaint with

the Board of Medicine against Respondent, Aaron B. Roush, M.D.

(Dr. Roush), alleging that Dr. Roush violated Subsection

458.331(1)(t), Florida Statutes. Dr. Roush requested an

administrative hearing, and the case was forwarded to the

Division of Administrative Hearings on July 24, 2007, for

assignment to an Administrative Law Judge to conduct the final

hearing.

Dr. Roush’s legal counsel was unable to attend the final

hearing due to a medical emergency. Dr. Roush appeared at the

final hearing. The undersigned offered to continue the final

hearing until Dr. Roush’s legal counsel could participate in the

final hearing, but Dr. Roush elected to go forward with the

final hearing and to represent himself.

At the final hearing, the Department did not call any

witnesses. Petitioner’s Exhibits A, B, C, D, E, and F were

admitted in evidence. The testimony of the Department’s expert

witness, Michael J. Cohen, M.D., was presented by deposition,

which was marked as Petitioner’s Exhibit D. At the final

hearing, Dr. Roush testified in his own behalf, and Respondent’s

Exhibit 1 was admitted in evidence.

The one-volume Transcript was filed on October 2, 2007. On

October 12, 2007, the parties filed their Proposed Recommended

Orders, which have been considered in rendering this Recommended

Order.

FINDINGS OF FACT

1. The Department is the state agency charged with the

regulation of the practice of medicine pursuant to Chapters 20,

456, and 458, Florida Statutes.

2. Dr. Roush is a licensed medical doctor in the State of

Florida, having been issued license No. ME 83992. He is board-

certified in general surgery by the American Board of Surgery.

3. On February 8, 2005, V.R. presented to the emergency

department at Winter Haven Hospital, Inc. Her chief complaint

was “near syncope,” which means near fainting. She had fallen

and hit her left ribs. She denied hitting her head and stated

that she never “went completely out.” She complained of feeling

dizzy when she stood.

4. While in the emergency department, V.R. had a CT which

indicated an abnormality. She was admitted to the hospital by

Ernesto J. Perez, M.D., who was the attending physician. V.R.’s

medical history included hypertension, osteoarthritis,

osteoporosis, and gastroesophageal reflux disease. A brain

magnetic resonance imaging (MRI) and a carotid magnetic

resonance angiography (MRA) were ordered for V.R.

5. After the MRI and MRA were completed, V.R. was seen by

Juan L. Joy, M.D., who reviewed the test results. Dr. Joy found

that both studies were “unremarkable.” Specifically, Dr. Joy

found that the MRI showed no posterior fossa lesions.

6. The radiographic report of the MRA showed that there

was “approximately 70 to 80 percent luminal narrowing of the

proximal left ICA." Because of the abnormal MRA, Dr. Perez

consulted with Dr. Roush.

7. Dr. Roush examined the patient and felt that V.R.’s

symptoms were consistent with inner ear cochlear malfunction.

However, he determined that V.R. had left-sided 70 to 80 percent

carotid stenosis. His assessment of V.R. was that she was “a

66-year-old female with probable asymptomatic high-grade

stenosis in the left carotid internal artery." He recommended a

carotid endarterectomy, which is a procedure that removes plaque

from the lining of the carotid artery.

8. An MRA is used to diagnose blockages or stenosis in the

carotid arteries. An MRA can overestimate the degree of

blockage. Other studies such as ultrasound, carotid Doppler

studies, and standard arteriography are used to diagnose carotid

stenosis. Roush did not order or perform any additional

diagnostic studies to confirm the results of V.R.’s MRA prior to

making the surgical recommendation.

9. Dr. Roush performed the carotid endarterectomy on V.R.,

but no carotid stenosis was found. An ultrasound of the right

carotid artery was ordered to determine if the original MRA had

been of the right carotid rather then the left. The ultrasound

showed that there was “no hemodynamically significant stenosis”

and “no plaque” in the right carotid.

10. The Department presented Dr. Michael J. Cohen as its

expert witness. Dr. Cohen is board-certified in vascular

surgery. It was Dr. Cohen’s opinion that an MRA, alone, was not

sufficient to diagnose carotid stenosis and that Dr. Roush fell

below the standard of care by not ordering additional diagnostic

tests prior to recommending surgical intervention. Dr. Cohen's

opinion is credited.

11. The MRA showed a blockage of 70 to 80 percent.

Dr. Cohen credibly opined that most vascular surgeons would not

have operated on an asymptomatic patient such as V.R. with that

level of stenosis without additional testing.

12. It was Dr. Cohen’s credible opinion that the carotid

endarterectomy which Dr. Roush performed on V.R. was an

unnecessary surgical procedure; thus, Dr. Roush fell below the

standard of care when he performed the surgery.

CONCLUSIONS OF LAW

13. 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).

14. The Department alleged that Dr. Roush violated

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

(1) The following acts constitute grounds

for denial of a license or disciplinary

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

* * *

(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 of medical

malpractice within the previous 5-year

period resulting in indemnities being paid

in excess of $50,000 each to the claimant in

a judgment or settlement and which incidents

involved 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

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 malpractice,”

“repeated malpractice,” or “failure to

practice medicine with that level of care,

skill, and treatment which is recognized as

being acceptable under similar conditions

and circumstances,” or any combination

thereof, and any publication by the board

shall so specify.

15. The Department alleged that Dr. Roush violated

Subsection 458.331(1)(t), Florida Statutes, by failing to

perform diagnostic studies to confirm the results of V.R.’s MRA,

by incorrectly diagnosing V.R. with left-sided carotid stenosis,

and by performing or attempting to perform an unnecessary

surgery on V.R.

16. The Department has established that Dr. Roush violated

Subsection 458.331(1)(t), Florida Statutes, by failing to

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

which is recognizable by a reasonably prudent similar physician

as being acceptable under similar conditions and circumstances.

The Department established that the standard of care required

that Dr. Roush perform additional diagnostic testing on V.R. to

determine whether there was carotid stenosis. An MRA can

overestimate the blockage, and V.R. was asymptomatic. In other

words, her symptoms did not point to a diagnosis of carotid

stenosis. No carotid stenosis was found when the surgery was

performed. Dr. Roush incorrectly diagnosed carotid stenosis and

performed an unnecessary surgical procedure.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

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

Statutes; imposing an administrative fine of $10,000; requiring

25 hours of community service; requiring Dr. Roush to take no

less than five hours of Risk Management Continuing Medical

Education coursework; and issuing a reprimand.

DONE AND ORDERED this 16th day of November, 2007, in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of November, 2007.

ENDNOTES

1/ Ms. Speer was unable to attend the final hearing due to

medical reasons. Dr. Roush represented himself at the final

hearing, and Ms. Speer filed a proposed recommended order on

Dr. Roush’s behalf.

2/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2004 edition.

COPIES FURNISHED :

Jennifer Forshey, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

Kelly E. Speer, Esquire

1804 West Baker Street, Suite D

Plant City, Florida 33563

Larry McPherson, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A-02

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.