08-000680F Stephen W. Thompson, M.D. vs. Department Of Health, Board Of Medicine Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Friday, September 11, 2009.

Summary: Department was substantially justified in bringing action against physician.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHEN W. THOMPSON, M.D., )

)

Petitioner, )

)

vs. ) Case No. 08-0680F

)

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Respondent. )

)

FINAL ORDER

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

on April 23, 2008, by video teleconference in Fort Myers and

Tallahassee, Florida, before Susan B. Harrell, a designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Bruce McLaren Stanley, Esquire

Henderson, Franklin, Starnes

& Holt, P.A.

Post Office Box 280

Fort Myers, Florida 33901

For Respondent: Matthew Casey, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner is entitled

to an award of attorney’s fees and costs pursuant to Section

57.111, Florida Statutes (2007). 1

PRELIMINARY STATEMENT

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

filed an Administrative Complaint against Petitioner, Stephen W.

Thompson, M.D. (Dr. Thompson), alleging a violation of

Subsection 458.331(1)(t), Florida Statutes (2003). Dr. Thompson

requested an administrative hearing, and the case was forwarded

to the Division of Administrative Hearings. On July 13, 2007,

the Administrative Complaint was amended to include a count

alleging a violation of Subsection 438.331(1)(m), Florida

Statutes (2003).

The final hearing was held on July 27, 2007, and the

Recommended Order was entered on October 31, 2007, recommending

that the Amended Administrative Complaint be dismissed. The

Board of Medicine entered a Final Order on December 18, 2007,

adopting the findings of fact and conclusions of law of the

Recommended Order and dismissing the Amended Administrative

Complaint.

On February 8, 2008, Dr. Thompson filed Petitioner’s

Application for Attorney’s Fees under F.S. §56.111. On

February 28, 2008, Respondent filed Respondent’s Response to the

The parties filed a Joint Pre-hearing Stipulation,

stipulating to certain facts contained in Section E of the pre-

hearing stipulation. Those facts have been included in this

Final Order to the extent relevant.

At the final hearing, Dr. Thompson offered Petitioner’s

Exhibits 1 through 24, which were admitted in evidence.

Dr. Thompson was given leave to file as late-filed exhibits the

requests for admissions and responses in the underlying case.

Dr. Thompson filed Petitioner’s Response to Respondent’s Request

for Admissions on April 22, 2008, but did not file the

admissions. The response to the request for admissions is

admitted as Petitioner’s Exhibit 26. Respondent's Composite

Exhibit 1 was admitted in evidence. The parties did not present

witness testimony. Counsel for the parties made oral arguments

at the final hearing.

The Transcript of the final hearing was filed on May 9,

2007. Dr. Thompson filed his proposed final order on May 16,

2008, and Respondent filed its proposed final order on May 19,

2008. The proposed final orders have been considered in the

preparation of this Final Order.

On May 23, 2008, counsel for Dr. Thompson filed a letter

rebutting certain portions of Respondent’s proposed final order.

On May 30, 2008, Respondent filed Respondent’s Motion to Strike

Petitioner’s Counsel’s Letter to the Administrative Law Judge.

On June 2, 2008, Dr. Thompson filed Petitioner’s Opposition to

Administrative Law Judge. Respondent’s Motion to Strike is

GRANTED.

FINDINGS OF FACT

1. On November 2, 2006, the Department filed with the

Board of Medicine a one-count Administrative Complaint against

Dr. Thompson, alleging that Dr. Thompson violated Subsection

458.331(1)(t), Florida Statutes (2003).

2. The Administrative Complaint was based on a probable

cause finding by the Probable Cause Panel of the Board of

Medicine (Panel) on October 27, 2006. The Panel included two

physicians.

3. Prior to the meeting of the Panel on October 27, 2006,

the members of the Panel received the following materials on the

cases to be considered: “the complete case files, including any

patient medical records, expert opinions, if any, any materials

supplied by the licensee or their counsel” and a draft of the

Administrative Complaint. The file on Dr. Thompson included

the investigator’s file; the expert opinions of Thomas F.

Blake, M.D., F.A.C.S.; Dr. Blake’s curriculum vitae; medical

records for the treatment of T.C.; and letters from Bruce M.

Stanley, Sr., counsel for Dr. Thompson, along with a draft of

the Administrative Complaint.

4. At the Panel meeting, the members indicated that they

had received the materials with sufficient time to review and

familiarize themselves with the materials. The Panel members

did not find any problems with the materials such as missing

pages or illegible copies. Additionally, the panel members

indicated that they had no conflict of interest or prior

knowledge of the cases before them that would make it

inappropriate to deliberate and vote on the issues.

5. In the case of Dr. Thompson, the Panel was supplied

with expert opinions from Dr. Blake. Dr. Blake was a diplomat

certified by the American Board of Obstetrics and Gynecology, a

fellow of the American College of Surgeons, and a fellow of the

American College of Obstetricians and Gynecologists. By letter

dated December 20, 2004, Dr. Blake rendered the following

opinion concerning the care provided by Dr. Thompson:

Thompson, M.D. fell below the standard of

care by abandoning a patient under general

anesthesia and leaving the facility to

attend to another patient. However, there

were no complications or injury to either

patient.

The potential problem would be that he would

unexpectedly be confronted with

complications in the delivery. This could

detain him for a prolonged period of time

and place the patient under anesthesia in

jeopardy of having to have the anesthesia

discontinued and subjecting her to further

risks.

6. By letter dated December 29, 2004, the Department

requested clarification on the issue of whether there were any

identifiable deficiencies or problems with the medical records

that were maintained by Dr. Thompson. Dr. Blake sent an

addendum to his report dated January 11, 2005, in which he gave

the following opinion:

Medical records utilized in the treatment of

the patient are complete and justify the

treatment. There are no identifiable

deficiencies or problems with the medical

records maintained by the subject.

7. At the Panel meeting, an attorney for the Department

summarized the case against Dr. Thompson as follows:

Patient T.C. presented to the surgery center

for several gynecological procedures. While

T.C. was under general anesthesia, the

Respondent physically left the surgery

center to attend to another patient in

another building. Respondent delivered a

baby of that other patient. T.C. was left

under the care of a certified registered

nurse anesthetist. After returning from

delivering the child, Respondent finished

the gynecological procedure.

The Department is charging a violation of

Section 458.331(1)(t), for violation of the

applicable standards of care by leaving T.C.

for several minutes in the middle of surgery

and in between procedures while she was

under a general anesthesia, by failing to

notify the patient that Respondent had left

and by failing to note in the medical record

that Respondent had left the building.

8. The Panel members discussed the case against

Dr. Thompson during the meeting and voted on the case, finding

there was probable cause to believe a violation had occurred.

The findings of the Panel resulted in the issuance of the

Administrative Complaint. The case was received by the Division

of Administrative Hearings on February 8, 2007, for assignment

to an Administrative Law Judge to conduct the final hearing.

9. The Department retained another expert, Jose H. Cortes,

M.D., F.A.C.O.G, to provide an opinion concerning Dr. Thompson’s

actions relating to the treatment of T.C. By letter dated

February 27, 2007, Dr. Cortes opined that Dr. Thompson fell

below the standard-of-care while attending T.C. by leaving the

operating room and going to another building to attend to

another patient. Dr. Cortes was also of the opinion that

Dr. Thompson did not adequately maintain the medical records for

T.C. by the following actions:

The departure from the normal course of

surgery such as leaving the operating room

was not documented by the attending

physician, the outpatient establishment

nursing staff, nor the anesthesia attending

or nurse anesthetist. A signed consent form

not available.

* * *

As the record documents the evaluation of

07/18/03 and 08/05/03 by the Physician

Assistant describes the patient’s complaint

and ultrasound study review respectively.

The blood count presented from 07/18/03

shows a Hemoglobin of 13.6 gms and

Hematocrit of 40.1 percent with normal

indices, a pelvic ultrasound which

documented fibroids of less than 2.1 cm in

size each. With the above findings a

conservative management strategy is usually

employed initially and the patient is

followed prior to recommending any surgical

procedure unless declined by the patient.

However, all of this has to be documented as

recommended by the literature and agencies

which review patient care and guidelines

such as KePRO.

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

amend the Administrative Complaint, which motion was granted by

Order dated July 13, 2007. The Amended Administrative Complaint

added a count alleging a violation of Subsection 458.331(1)(m),

Florida Statutes (2003), alleging that Dr. Thompson:

[F]ailed to keep legible medical records

justifying the course of treatment by

failing to document 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 contraceptives, a formal

dilation and curettage, and/or the use of a

Mirena IUD to address T.C.’s problems or

concerns.

11. The final hearing was held on July 27, 2007. A

Recommended Order was entered on October 31, 2007, recommending

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 (2003), and dismissing the Amended Administrative

Complaint.

12. A Final Order was entered on December 18, 2007,

adopting the findings of fact and conclusions of law of the

Recommended Order and dismissing the Amended Administrative

Complaint against Dr. Thompson.

13. The parties have stipulated to the reasonableness of

the fees and costs claimed by Dr. Thompson. Dr. Thompson has

incurred $34,851.00 in attorney’s fees and costs.

14. The parties have stipulated that Dr. Thompson is a

prevailing small business party and that Respondent is not a

nominal party to this action.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. § 57.111, Fla. Stat.

16. Subsection 57.111(4)(a), Florida Statutes, provides:

Unless otherwise provided by law, an award

of attorney’s fees and costs shall be made

to a prevailing small business party in any

adjudicatory proceeding or administrative

proceeding pursuant to chapter 120 initiated

by a state agency, unless the actions of the

agency were substantially justified or

special circumstances exist which would make

the award unjust.

17. The parties have stipulated that Dr. Thompson is a

prevailing small business party in the administrative proceeding

which was initiated against Dr. Thompson by Respondent. The

only issue is whether the Administrative Complaint and Amended

Administrative Complaint filed against Dr. Thompson were

substantially justified.

18. Subsection 57.111(3)(e), Florida Statutes, provides:

“A proceeding is ‘substantially justified’ if it had a

reasonable basis in law and fact at the time that it was

initiated by a state agency." Helmy v. Department of Business

and Professional Regulation , 707 So. 2d 366, 368 (Fla. 1st

DCA 1998).

19. In Department of Health and Rehabilitative Services v.

S.G. , 613 So. 2d 1380 (Fla. 1st DCA 1993), the court discussed

the meaning of “substantially justified” and stated that the

term had similar meaning to the term “substantial justification”

in the Federal Equal Access to Justice Act, which the court in

McDonald v. Schweiker , 726 F.2d 311, 316 (7th Cir 1983),

described as meaning that “the government must have a solid

though not necessarily correct basis in law and fact for the

position it took.” In Fish v. Department of Health, Board of

Dentistry , 825 So. 2d 421, 423 (Fla. 4th DCA 2002), the court

also discussed the meaning of “substantially justified” as that

term is used in Subsection 57.0111, Florida Statutes. The

court, citing Kibler v. Department of Professional Regulation ,

418 So. 2d 1081, 1084 (Fla. 1982), noted:

Generally, in resolving whether there was a

substantial justification for filing an

administrative complaint against a licensee,

one need only examine the information before

the probable cause panel at the time it

found probable cause and directed the filing

of an administrative complaint. . . . To

sustain a probable cause determination there

must be some evidence considered by the

panel that would reasonably indicate that

the violation had indeed occurred.

20. In reviewing the case of Dr. Thompson, the Panel had

before it the investigative file, the medical records of T.C.,

the expert opinions of Dr. Blake, and letters from counsel for

Dr. Thompson stating Dr. Thompson’s position. Dr. Blake had

opined that Dr. Thompson’s departure from the operating room to

attend to another patient fell below the standard-of-care

required of him. Thus, the Panel had sufficient information

before it to conclude that there was probable cause to believe

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

Statutes (2003).

21. In February 2007, the Department received another

expert opinion from Dr. Cortes on Dr. Thompson’s actions.

Dr. Cortes opined that Dr. Thompson had failed to keep medical

records that justified the course of treatment of T.C., which is

a violation of Subsection 458.331(1)(m), Florida Statutes

(2003). In July 2007, the Department sought leave to amend the

Administrative Complaint to include Count II, alleging a

violation of Subsection 458.331(1)(m), Florida Statutes (2003).

The Department’s motion was granted, and the Amended

Administrative Complaint was filed. There was information based

on the expert opinion of Dr. Cortes to substantially justify the

addition of Count II.

22. There was a difference in the opinions of Dr. Blake

and Dr. Cortes on the issue of the adequacy of the medical

records. However, as the court noted in Department of Health,

Board of Medicine v. Thompson , 890 So. 2d 400, 401 (Fla. 1st DCA

2004), the Department is “free to believe the opinion of one

expert despite the existence of two expert opinions to the

contrary because a decision to prosecute that turns on a

credibility assessment has a reasonable basis in fact and law.”

Thus, the Department could rely on Dr. Cortes’ opinion in making

a determination to add a count relating to the violation of

Subsection 458.331(1)(m), Florida Statutes (2003).

23. Dr. Thompson is not entitled to an award of attorney’s

fees and costs because the actions taken by the Panel and the

Department to file and amend the Administrative Complaint were

substantially justified.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the application for attorney’s fees and

costs is DISMISSED.

DONE AND ORDERED this 13th day of June, 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 June, 2008.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2007 codification.

COPIES FURNISHED :

Matthew Casey, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

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

Edward A. Tellechea, Esquire

Rosanna Catalano, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.