08-004197PL Department Of Health, Board Of Medicine vs. James S. Pendergraft, Iv, M.D. Status: Closed Recommended Order on Monday, September 21, 2009.

Summary: Respondent's failure to fully advise hospital of events at a clinic prior to emergency transfer and to document events warrants discipline.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 08-4197PL

)

JAMES S. PENDERGRAFT, IV, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal administrative hearing in this case was held on

May 20 and 21, 2009, in Orlando, Florida, and on July 10, 2009,

by video teleconference between Tallahassee and Orlando,

Florida, before William F. Quattlebaum, Administrative Law

Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Greg S. Marr, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

For Respondent: Kenneth J. Metzger, Esquire

Metzger, Grossman, Furlow & Bayo, LLC

1408 North Piedmont Way

Tallahassee, Florida 32308

STATEMENT OF THE ISSUES

The issues in this case are whether the allegations of the

Administrative Complaint are correct, and, if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated April 11, 2008, the

Department of Health (Petitioner) alleged that James S.

Pendergraft, IV, M.D. (Respondent), violated Subsections

458.331(1)(m), 458.331(1)(t)1., and 458.331(1)(q), Florida

Statutes (2005).

The Respondent disputed the allegations and requested a

formal administrative hearing. By letter dated August 25, 2008,

the Petitioner forwarded the matter to the Division of

Administrative Hearings. The hearing was initially scheduled to

commence on December 16, 2008; was twice continued at the

request of the parties; and, thereafter, was scheduled for

May 20 through 22, 2009. Inclement weather prevented the travel

to Orlando of an out-of-state witness planned for May 22, 2009,

and the hearing recessed and was completed by video

teleconference on July 10, 2009.

At the hearing, the Petitioner presented the testimony of

five witnesses and had Exhibits numbered 1 and 3 admitted into

evidence. The Respondent testified on his own behalf, presented

the testimony of two additional witnesses, and had Exhibits

numbered 1 through 3 admitted into evidence. Joint Exhibits 1

through 5 were admitted into evidence.

On May 18, 2009, the Respondent filed a Motion to Dismiss

related to certain allegations contained in the Administrative

Complaint. No response to the motion has been filed. The

motion has been granted as specifically addressed herein.

The Transcript of the proceedings held on May 20 and 21 was

filed on June 26, 2009. The Transcript of the July 10, 2009,

proceedings was filed on August 17, 2009. Both parties filed

Proposed Recommended Orders that have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is the state department charged with

regulating the practice of medicine pursuant to Section 20.43

and Chapters 456 and 458, Florida Statutes (2005).

2. At all times material to this case, the Respondent was

a physician licensed by the State of Florida, holding license

number 59702 and was board-certified in obstetrics and

gynecology. The Respondent owned, and practiced medicine at,

EPOC Clinic, 609 Virginia Drive, Orlando, Florida.

3. On December 19, 2005, Patient S.B. presented to the

EPOC Clinic to inquire about terminating a pregnancy, but

elected not to proceed with the termination at that time.

4. On February 3, 2006, S.B. returned to the EPOC Clinic,

having decided to terminate the pregnancy. A sonogram was

performed, and S.B. was determined to be approximately 18 to 19

weeks gestation. At that time, she executed consent forms for

pregnancy termination by medication, and dilation and extraction

(D&E).

5. Patient S.B. had been pregnant three times previously

and had birthed three children, each delivered live by cesarean

section.

6. The patient's pregnancy termination was scheduled to

commence on February 4, 2006, but S.B. was late in arriving at

the clinic, and the procedure was rescheduled for February 6,

2006. The patient returned to the EPOC Clinic as rescheduled.

7. While at the EPOC Clinic on February 6 and 7, 2006,

S.B. received medical care and treatment primarily from the

Respondent and from Carmita Etienne, a medical assistant working

at the clinic.

8. The termination was initiated with the use of

"Cytotec," a drug that causes cervical dilation and uterine

contractions, and which generally results in passage of the

fetus into the vaginal vault.

9. Cytotec is commonly used in medication-based pregnancy

termination. It is known to increase the potential for uterine

rupture during labor and delivery, the risk for which is noted

within the relevant consent documents executed by the patient.

10. Cytotec tablets, in 200 microgram dosages, were

administered orally to the patient by the Respondent's medical

assistant.

11. S.B. received 200 micrograms of Cytotec at 10:00 a.m.

on February 6, 2006, and received the same dosage at four-hour

intervals through 10:00 a.m. on February 7, 2006, at which time

the patient's cervix remained undilated.

12. The Respondent thereafter escalated the frequency of

the Cytotec to every two hours, and the drug was administered

two additional times on February 7, 2006, at noon and 2:00 p.m.

13. According to progress notes contained in the medical

records, S.B. complained of discomfort on February 6, 2006, at

7:45 p.m. and on February 7, 2006, at 3:00 a.m.

14. Discomfort or pain is a typical element of labor, and

S.B.'s discomfort was not unexpected.

15. Demerol, a controlled substance, is routinely used to

relieve pain during medical procedures, including pregnancy

terminations.

16. The medical assistant relayed S.B.'s reports of

discomfort to the Respondent.

17. The Respondent ordered Demerol on both occasions to

relieve S.B.'s pain.

18. A physician must be properly registered with the U.S.

Drug Enforcement Administration (DEA) to order the

administration of Demerol to a patient.

19. The Respondent was not properly registered with the

DEA on February 6 or 7, 2006.

20. At the hearing, the Respondent denied that he ordered

the Demerol. He testified that he was serving as a conduit

between his medical assistant and another physician, Dr. Harry

Perper, who also worked at the clinic and who was apparently

properly registered with the DEA. The Respondent's testimony on

this issue was not persuasive and has been rejected.

21. The evidence failed to establish that Dr. Perper

ordered the administration of Demerol to the patient or that the

Respondent merely relayed such orders from Dr. Perper to the

medical assistant.

22. The Respondent asserted that he had not been

registered with the DEA since 2002 and that everyone at the

clinic knew he could not order controlled substances.

23. The patient's progress notes, created

contemporaneously with the patient's treatment at the clinic,

explicitly state that the orders for Demerol came from the

Respondent.

24. The medical assistant who created the progress notes

testified that she preferred talking to the Respondent rather

than Dr. Perper and that the directions she received for the

patient's Demerol came from the Respondent.

25. The Respondent's assertion that he did not order the

Demerol was not credible and has been rejected.

26. The Demerol was administered by the medical assistant

through injection of the medication into S.B.'s buttocks, and

the patient's pain was reduced.

27. The medical assistant denied that she personally

administered the Demerol to the patient. Her denial was not

credible and has been rejected.

28. The progress notes also state that the patient

complained of "right side" pain at 3:00 p.m. on February 7,

2006.

29. At approximately 3:45 p.m. on February 7, 2006, the

patient was apparently examined by Dr. Perper, who wrote "SROM"

in the progress notes, signifying that a "spontaneous rupture of

membranes" had occurred and indicating that the patient's "water

had broken." He also documented his observation that a fetal

part was protruding from the cervix into the vagina.

30. By that evening, the patient's termination was not

completed. At approximately 7:00 p.m. on February 7, 2006, the

medical assistant moved the patient into a procedure room at the

Respondent's direction.

31. The instruments to perform a D&E were present in the

procedure room. The Respondent began to perform an examination

of S.B. to assess the situation and determine whether the

termination procedure should be completed by D&E.

32. The Respondent utilized a speculum to open the

patient's vagina and performed a sonogram on the patient's

abdomen to identify the location of the fetus. The fetus was

observed to be within S.B.'s uterus.

33. The Respondent observed a fetal part protruding

through the cervical os into the vagina. In order to examine

the extent of cervical dilation, he detached the part from the

fetus by grasping the part with a "Hearn" instrument and

twisting the instrument. After he detached the part, he

withdrew the instrument and the part from the patient.

34. The Petitioner alleged that the Respondent

"apparently" attempted a D&E. The evidence failed to support

the allegation. The evidence failed to establish that the

Respondent pulled on the exposed fetal part in an attempt to

extract the fetus from the uterus.

35. The evidence failed to establish that the Respondent

inserted the Hearn or any other instrument into the patient's

cervix or uterus.

36. After removing the fetal part from the vagina, the

Respondent placed the part on a tray. Almost immediately

thereafter, the Respondent's reviewed the ultrasound image and

observed that the image indicated the fetus was no longer fully

contained within the uterus.

37. The Respondent understood that the ultrasound image

indicated a potential uterine perforation or rupture and,

appropriately, concluded that the situation could be life-

threatening for the patient.

38. He quickly contacted the Arnold Palmer Hospital to

arrange for emergency transfer of S.B. to the hospital. The

Respondent also spoke to two practitioners at the hospital.

39. Initially, he spoke by telephone to Dr. Pamela Cates,

a resident physician at the hospital. Dr. Cates did not have

the authority to admit the patient to the hospital and directed

the Respondent to talk to Dr. Norman Lamberty, the "Ob/Gyn"

physician on call and present at the hospital.

40. The Respondent spoke by telephone to Dr. Lamberty, who

agreed to accept the transfer of the patient from the clinic to

the hospital.

41. The Respondent failed to inform either Dr. Cates or

Dr. Lamberty that he had removed a portion of the fetus from the

patient at the clinic.

42. While waiting for an ambulance to arrive to transport

the patient, the Respondent wrote a note to be transported to

the hospital with the patient. Although in the note he

documented the treatment provided to the patient at the clinic,

he failed to include the removal of the fetal part in the note.

43. The Respondent testified that he did not document his

removal of the fetal part because he did not believe it was

significant to the medical care the patient would receive at the

hospital.

44. S.B. was transported to the hospital along with some

of her medical records from the clinic and the Respondent's

handwritten note. None of the documentation indicated that a

part of the fetus had been removed at the clinic.

45. After S.B. arrived at the hospital, Dr. Lamberty

removed the fetus and completed the abortion procedure.

46. Dr. Lamberty also repaired a cervical laceration and

performed a hysterectomy. He noted that the uterine rupture

occurred on the patient's right side and that the fetus was

located not "floating" in the abdomen but "between two layers of

tissue on the right side of the pelvis."

47. The evidence failed to establish that the cervical

laceration occurred while the patient was at the clinic or that

it was caused by treatment the patient received at the clinic.

48. Upon removing the fetus, Dr. Lamberty observed that

the fetus was incomplete and that a portion of the fetal leg was

missing. Dr. Lamberty began efforts to locate the missing part,

which he reasonably presumed remained in the patient.

49. Dr. Lamberty's concern regarding the missing part was

that potential exposure of the part to the patient's vagina

would have contaminated the part with bacteria and that a risk

of infection would be presented by leaving the part within the

patient's pelvis or abdomen.

50. Dr. Lamberty was unable to locate the missing part,

and, thereafter, radiological studies, including X-rays and a CT

scan, were performed in an unsuccessful attempt to locate the

part.

51. The patient remained hospitalized and on February 10,

2006, a second surgical procedure was performed on the patient,

this time to remove a "Jackson-Pratt" drain that had been

improperly sutured into the patient's abdomen at the time of the

hysterectomy. The second surgery was unrelated to the search

for the missing part.

52. Also on February 10, 2006, the hospital contacted the

clinic to inquire as to the missing part and was advised that

the part had been removed by the Respondent at the clinic.

CONCLUSIONS OF LAW

53. 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. (2009).

54. The Respondent is the state agency charged with

regulating the practice of medicine. § 20.43 and Chapters 456

and 458, Fla. Stat. (2005).

55. The Administrative Complaint charged the Respondent

with violations of Subsection 458.331(1), Florida Statutes

(2005), which provides in relevant part as follows:

(1) The following acts constitute grounds

for denial of a license or disciplinary

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

* * *

(m) Failing to keep legible, as defined by

department 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 of consultations and

hospitalizations.

* * *

(q) Prescribing, dispensing, administering,

mixing, or otherwise preparing a legend

drug, including any controlled substance,

other than in the course of the physician's

professional practice. For the purposes of

this paragraph, it shall be legally presumed

that prescribing, dispensing, administering,

mixing, or otherwise preparing legend drugs,

including all controlled substances,

inappropriately or in excessive or

inappropriate quantities is not in the best

interest of the patient and is not in the

course of the physician's professional

practice, without regard to his or her

intent.

* * *

(t) Notwithstanding s. 456.072(2) but as

specified in s. 456.50(2):

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.

* * *

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 malpractice," or "medical

malpractice," or any combination thereof,

and any publication by the board must so

specify.

56. Subsection 456.50(1)(g), Florida Statutes (2005),

defines medical malpractice as follows:

"Medical malpractice" 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. Only for the purpose of

finding repeated medical malpractice

pursuant to this section, any similar

wrongful act, neglect, or default committed

in another state or country which, if

committed in this state, would have been

considered medical malpractice as defined in

this paragraph, shall be considered medical

malpractice if the standard of care and

burden of proof applied in the other state

or country equaled or exceeded that used in

this state.

57. Subsection 458.305(3), Florida Statutes (2005),

defines the "practice of medicine" as "the diagnosis, treatment,

operation, or prescription for any human disease, pain, injury,

deformity, or other physical or mental condition."

58. The Petitioner has the burden of proving by clear and

convincing evidence the allegations set forth in the

Administrative Complaint against the Respondent. Department of

Banking and Finance v. Osborne Stern and Company , 670 So. 2d

932, 935 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987).

59. Clear and convincing evidence is that which is

credible, precise, explicit, and lacking confusion as to the

facts at issue. The evidence must be of such weight that it

produces in the mind of the trier of fact the firm belief of

conviction, without hesitancy, as to the truth of the

allegations. Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th

DCA 1983).

60. Count I of the Administrative Complaint alleged

various violations of Subsection 458.331(1)(m), Florida Statutes

(2005), which essentially requires a physician to keep medical

records documenting and justifying the course of treatment.

61. The evidence established that, by failing to document

the removal of a portion of a fetal limb, the Respondent clearly

failed to keep legible medical records justifying the course of

treatment in violation of Subsection 458.331(1)(m), Florida

Statutes (2005).

62. The Administrative Complaint alleged that the

Respondent's failure to document a D&E constitutes a violation

of Subsection 458.331(1)(m), Florida Statutes (2005). The

evidence failed to establish that the Respondent attempted to

perform a D&E; accordingly, the Respondent had no obligation to

document such a procedure.

63. The Administrative Complaint alleged that the medical

records were insufficient to set forth a rationale and

justification for the increased frequency of Cytotec

administration thereby violating Subsection 458.331(1)(m),

Florida Statutes (2005). The evidence establishes that the

patient's medical records sufficiently indicated that the

increased frequency of administration was based on a lack of

cervical dilation 24 hours after initial commencement of drug

therapy.

64. Count II of the Administrative Complaint alleged that

the Respondent committed medical malpractice in violation of

Subsection 458.331(1)(t)1., Florida Statutes (2005), by failing

to practice medicine in accordance with the level of care,

skill, and treatment that, in light of all relevant surrounding

circumstances, is recognized as acceptable and appropriate by

reasonably prudent similar health care providers. Specifically,

the Petitioner alleged that the Respondent committed medical

malpractice in violation of Subsection 458.331(1)(t)1., Florida

Statutes (2005), as follows:

A. By having prescribed, ordered or

administered controlled substances to

patient S.B. when he did not possess a

current, valid DEA number;

B. By ordering or administering one

additional dosage of Cytotec two hours after

a prior dosage;

C. By ordering or administering an

excessive amount of Cytotec;

D. By apparently attempting a D&E without

sufficient dilation of the cervix;

E. By causing a cervical laceration that

may have lead to a uterine rupture;

F. By removal of a portion of the fetal

limb;

G. By not advising the hospital that part

of the fetus' lower limb had been removed

causing unnecessary delays during surgery

trying to find the missing extremity and the

taking of an additional x-ray to confirm

that it was not inside the abdomen;

H. By the lack of adequate documentation of

the removal of a portion of the fetal limb.

65. The federal Controlled Substances Act obligates

practitioners engaged in prescribing, ordering, administering or

dispensing controlled substances to be registered with the DEA.

The Respondent was not registered with the DEA on February 6

or 7, 2006.

66. The Respondent offered the testimony of Pharmacist

Jose Rey, who asserted that there was no proper order issued for

Demerol in this case. The evidence established that the

Respondent ordered the Demerol that was administered to the

patient and that the Respondent was not properly registered with

the DEA to order the medication. Mr. Rey's testimony has been

rejected.

67. The Petitioner presented the expert testimony of

Dr. Jorge Gomez, who opined that a physician who was not

properly registered with the DEA would breach the standard of

care and commit medical malpractice by ordering the

administration of a controlled substance in violation of

Subsection 458.331(1)(t)1., Florida Statutes (2005).

68. The Respondent asserted that such a practice would not

constitute medical malpractice and offered the expert testimony

of Dr. Steven Warsof, who opined that a physician who failed to

provide pain-relieving medication to a patient in need would

have breached the standard of care.

69. As referenced in the Preliminary Statement to this

Recommended Order, the Respondent filed a Motion to Dismiss

immediately prior to commencement of the hearing, wherein the

Respondent asserted that the charge of medical malpractice under

Subsection 458.331(1)(t)1., Florida Statutes (2005), was

improper. The Respondent observed that the Petitioner did not

charge the Respondent with a violation of Subsection

458.331(1)(g), Florida Statutes (2005), which provides that a

failure "to perform any statutory or legal obligation placed

upon a licensed physician" is grounds for discipline. The

argument was further addressed in the Respondent's Proposed

Recommended Order.

70. As noted by the Respondent, in Barr v. Dep't of

Health, Bd. of Dentistry , 954 So. 2d 668 (Fla. Dist. Ct. App.

1st Dist. 2007), the court rejected the Department of Health

position that a "particularly egregious" recordkeeping violation

could also constitute a breach of a standard of care for

purposes of disciplinary proceedings, stating that to do so

would render the statutory recordkeeping requirement "useless"

as grounds for discipline. The same reasoning would suggest

that an allegation that a licensee's failure to comply with a

legal obligation (in this case, the Respondent's lack of DEA

registration) could constitute medical malpractice.

71. The Petitioner has filed no response to the Motion to

Dismiss and did not directly address the matter in its Proposed

Recommended Order.

72. The Motion to Dismiss is hereby granted, as to the

allegation that the Respondent's ordering Demerol for the

patient without proper DEA registration constituted a violation

of Subsection 458.331(1)(t), Florida Statutes (2005).

73. The Petitioner alleged that the Respondent's use of

Cytotec was a breach of the applicable standard of care.

Dr. Gomez opined that the administration of Cytotec every two

hours, as occurred twice in this case, was excessive and a

breach of the standard of care for this patient. Dr. Gomez also

uses Cytotec but prescribes a dosage of 400 micrograms at six-

hour intervals administered vaginally. Dr. Warsof testified

that the progress of labor was very slow in this case and that

it was not inappropriate to increase the frequency of Cytotec to

induce labor. Dr. Warsof's testimony has been credited.

74. The evidence failed to establish that the Respondent's

use of Cytotec in this case, either by dosage or frequency, was

inappropriate or was a breach of the standard of care.

75. The evidence failed to establish that the Respondent

attempted to terminate the pregnancy through a D&E.

76. The evidence failed to establish that the Respondent

caused a cervical laceration.

77. The evidence failed to establish that the Respondent's

removal of the portion of the fetal limb constituted medical

malpractice.

78. As charged in the Administrative Complaint, the

Respondent's failure to advise the hospital's physicians during

the telephone conversations that a portion of the patient's

fetus had been removed at the Respondent's clinic breached the

standard of care and constituted medical malpractice.

79. The Respondent asserted that the missing part did not

pose a serious risk to the patient. Dr. Warsof opined that the

risk of infection would have been addressed through the use of

antibiotics that would have been administered to the patient.

He testified that the hospital's inability to locate the missing

part was of little consequence and should not have impacted the

management of the patient in the hospital. Dr. Gomez opined

that the Respondent's failure to inform the receiving hospital

to which the patient was transferred that a fetal part had been

removed at the clinic was a breach of the standard of care as

set forth herein. Dr. Gomez's testimony was persuasive and has

been credited. Dr. Warsof's testimony was not persuasive and

has been rejected.

80. The evidence established that the medical care

provided to the patient at the hospital was directly affected by

the Respondent's failure to advise the hospital that the missing

part had been removed at the clinic. Had the hospital been

advised that a fetal part had been removed at the clinic, the

radiological tests performed during the attempt to locate the

part would have been unnecessary, although other tests directly

related to the sutured drain and second surgery would have been

required.

81. The hospital eventually discovered that the Respondent

had removed the fetal part at the clinic when the hospital

contacted the clinic on February 10, 2006. The Respondent

asserted that, had the hospital inquired of the clinic at an

earlier time, the hospital would have learned that the missing

part had been removed from the patient's vagina while she was at

the clinic.

82. It was the Respondent's obligation to advise the

hospital of the events occurring at the clinic, and the

implication that the hospital should have contacted the clinic

to track down the missing part has been rejected. There is no

credible evidence that the hospital personnel erred in their

attempt to locate the missing fetal part.

83. In the Motion to Dismiss, the Respondent asserted that

the alleged failure to adequately document the removal of the

portion of the fetal limb, charged as a recordkeeping violation

under Subsection 458.331(1)(m), Florida Statutes (2005), was

inappropriately charged as medical malpractice under Subsection

458.331(1)(t), Florida Statutes (2005). The assertion was re-

addressed in the Respondent's Proposed Recommended Order.

84. As stated previously, in the Barr decision, the court

rejected the position that the "particularly egregious"

recordkeeping violation could also constitute a breach of a

standard of care in a disciplinary proceeding. This was

specifically what was charged in the Administrative Complaint in

this case. The Petitioner filed no response to the Motion to

Dismiss and did not directly address the matter in its Proposed

Recommended Order. The Motion to Dismiss is hereby granted as

to the allegation that the Respondent's recordkeeping

constituted a violation of Subsection 458.331(1)(t), Florida

Statutes (2005).

85. Count III of the Administrative Complaint alleged that

the Respondent committed medical malpractice in violation of

Subsection 458.331(1)(q), Florida Statutes (2005), by

"prescribing, dispensing, administering, mixing, or otherwise

preparing a legend drug, including any controlled substance,

other than in the course of the physician's professional

practice." Specifically, the Petitioner alleged that the

Respondent violated Subsection 458.331(1)(q), Florida Statutes

(2005), by ordering Demerol without proper DEA registration and

through the administration of "excessive" Cytotec.

86. The evidence failed to establish that the Respondent's

use of Cytotec and Demerol occurred "other than in the course

of" the Respondent's professional practice, or that such use

otherwise constituted medical malpractice under Subsection

458.331(1)(q), Florida Statutes (2005).

87. Florida Administrative Code Rule 64B8-8.001 sets forth

the disciplinary guidelines applicable to the statutory

violations relevant to this proceeding.

88. Florida Administrative Code Rule 64B8-8.001(2)

provides that the penalty for a first offense of Subsection

458.331(1)(m), Florida Statutes, ranges from a reprimand to

denial or two years’ suspension followed by probation, and an

administrative fine from $1,000.00 to $10,000.00.

89. Florida Administrative Code Rule 64B8-8.001(2)

provides that the penalty for a first offense of Subsection

458.331(1)(t), Florida Statutes, ranges from a two-year

probation to revocation or denial and an administrative fine

from $1,000.00 to $10,000.00.

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

provides as follows:

Aggravating and Mitigating Circumstances.

Based upon consideration of aggravating and

mitigating factors present in an individual

case, the Board may deviate 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) Legal 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, F.S., 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) Where a licensee has been charged with

violating the standard of care pursuant to

Section 458.331(1)(t), F.S., but the

licensee, who is also the records owner

pursuant to Section 456.057(1), F.S., fails

to keep and/or produce the medical records.

(i) Any other relevant mitigating factors.

(Emphasis supplied)

91. The failure to notify hospital personnel that a fetal

part was removed while the patient was at the clinic adversely

impacted the medical care the patient received at the hospital

and has been considered as an aggravating factor.

92. The Respondent was the subject of a prior disciplinary

proceeding which resulted in an imposition of discipline against

the Respondent's license; however, the Final Order entered in

that case has been appealed and is not yet final. The prior

disciplinary case has not been considered in rendering the

recommended penalty set forth herein.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Health enter a

final order finding James S. Pendergraft IV, M.D., in violation

(2005), and imposing a penalty as follows: a two-year period of

suspension followed by a three-year period of probation and an

administrative fine of $20,000.00.

DONE AND ENTERED this 21st day of September, 2009, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of September, 2009.

COPIES FURNISHED :

Greg S. Marr, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

Kenneth J. Metzger, Esquire

Metzger, Grossman, Furlow & Bayo, LLC

1408 North Piedmont Way

Tallahassee, Florida 32308

Kathryn L. Kasprzak, Esquire

Fowler White Boggs Banker, P.A.

200 South Orange Avenue, Suite 1950

Orlando, Florida 32801

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

Department of Health

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.