09-002722PL Department Of Health, Board Of Medicine vs. Guillermo Achong, M.D. Status: Closed Recommended Order on Monday, January 4, 2010.

Summary: Petitioner proved by clear and convincing evidence that Respondent violated standard of care by not inquiring into the particulars when labor room nurse advised him that the patient had a "gush" of vaginal bleeding.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 09-2722PL

)

GUILLERMO ACHONG, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

on August 31, 2009, and September 1, 2009, by video

teleconference, with the parties appearing in Miami, Florida,

before Patricia M. Hart, a duly-designated Administrative Law

Judge of the Division of Administrative Hearings, who presided

in Tallahassee, Florida.

APPEARANCES

For Petitioner: Christopher C. Torres, Esquire

Diane K. Kiesling, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

For Respondent: Charles B. Patrick, Esquire

1648 South Bayshore Drive

Miami, Florida 33133

STATEMENT OF THE ISSUE

Whether the Respondent committed the violations alleged in

the Administrative Complaint December 19, 2005, and, if so, the

penalty that should be imposed.

PRELIMINARY STATEMENT

In an Administrative Complaint dated December 19, 2005, the

Department of Health, Board of Medicine ("Department") charged

Guillermo Achong, M.D., with violating Section 458.331(1)(t),

Florida Statutes (2003) 1 by committing the following acts:

a. Failure to personally evaluate

Patient L.H. in a timely manner;

b. Failed to telephonically elicit

sufficient information regarding

Patient L.H.'s clinical status;

c. Failed to consider whether Patient L.H.

had presented with placental abruption and

treat her appropriately for that condition;

d. Failed to provide appropriate, timely

medical assistance to Patient L.H.

Dr. Achong timely requested an administrative hearing to resolve

disputed issues of material fact, and the Department transmitted

the matter to the Division of Administrative Hearings for the

assignment of an administrative law judge. After several

continuances, the final hearing was held on August 31, 2009, and

September 1, 2009.

At the hearing, the Department presented the testimony of

Jennifer Williams; John Dubok; and Linda Greene, M.D.

Petitioner's Exhibits 1 through 7, 10, and 12 through 14 were

offered and received into evidence. Dr. Achong testified on his

own behalf and presented the testimony of Ramon Hechavarria,

M.D., and Nabil Matar, M.D. Respondent's Exhibits 1 and 3

through 10 were offered and received into evidence.

The three-volume transcript of the proceedings was filed

with the Division of Administrative Hearings on September 16,

2009, and the parties timely filed proposed findings of fact and

conclusions of law, which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Department is the state agency responsible for the

investigation and prosecution of complaints involving physicians

licensed to practice medicine in Florida. See § 455.225, Fla.

Stat. (2009). The Board is the entity responsible for

regulating the practice of medicine in Florida and for imposing

penalties on physicians found to have violated the provisions of

Section 458.331(1), Florida Statutes. See § 458.331(2), Fla.

Stat. (2009).

2. At the times pertinent to this proceeding, Dr. Achong

was a physician licensed by the State of Florida, having been

issued license number ME38304, and his medical office was

located at 690 East 49th Street, Hialeah, Florida. Dr. Achong

specialized in obstetrics and gynecology, although he was not

board-certified in these areas of practice. Dr. Achong has not

previously been the subject of disciplinary action by the Board

of Medicine, and he is not currently practicing medicine, having

retired with a disability in 2006.

3. At the times pertinent to this proceeding, Dr. Achong

had hospital privileges at Hialeah Hospital and at North Shore

Medical Center ("Medical Center"). Both facilities had his home

telephone number and his beeper number. It was his practice to

keep his beeper close to him at all times. When he was in the

delivery room, it was his practice to give his beeper to the

circulating nurse, who would be responsible for alerting him

whenever someone tried to reach him on his beeper. The beeper

he used in 2004 gave only the telephone number of the person

trying to reach him, but he was able to recognize the number of

Hialeah Hospital and the Medical Center.

4. On February 12, 2004, Patient L.H. went to her

gynecologist, Ramon Hechavarria, M.D., for a routine

examination. Patient L.H. was, at the time, a 27-year-old who

was 32 weeks' pregnant, and she had previously had one live

birth. Dr. Hechavarria's examination revealed that

Patient L.H.'s blood pressure was elevated, and Dr. Hechavarria

admitted her to Medical Center for 24 hours for observation.

5. On February 12, 2004, Dr. Hechavarria ordered blood and

laboratory tests done in the Medical Center. The blood tests

included a Disseminated Intravascular Coagulopathy ("DIC")

profile and a Fibrinogen Degradation Profile ("FDP"); the

results of these blood tests were normal. Patient L.H.'s

hemoglobin and her platelet count were normal, and, although

there was a slight trace of protein in her urine, that is

considered normal.

6. On February 13, 2004, Dr. Hechavarria discharged

Patient L.H. with a diagnosis of chronic hypertension and a

prescription for 250 milligram tablets of Aldomet, to be taken

three times per day. Aldomet is a medication that treats

hypertension by lowering the blood pressure.

7. Patient L.H. was in good, stable condition when she was

discharged on February 13, 2004. Readings from a fetal heart

monitor taken during the time Patient L.H. was in the Medical

Center indicated that the fetus was alive.

8. Dr. Hechavarria considered Patient L.H.'s to be a high

risk pregnancy in part because of her hypertension but also

because she came in late for prenatal care, missed two

appointments, and was overweight.

9. Dr. Hechavarria left town for a vacation on

February 13, 2004, and Dr. Achong was to cover his patients

during his absence under an arrangement whereby Dr. Hechavarria

and Dr. Achong provided coverage for each other when one or the

other was out of town or otherwise unavailable to see patients.

Under the arrangement, Dr. Achong was expected to go to the

hospital if one of Dr. Hechavarria's patients were in labor or

if a patient were to go to the emergency room complaining of

vaginal bleeding or any other obstetrical or gynecological

condition.

10. Whenever coverage of patients was passing from one

physician to the other, Dr. Hechavarria and Dr. Achong advised

each other of any patient that was in the hospital for

gynecological, obstetrical, or any other medical reason. They

did not advise each other of patients that had recently been

discharged from the hospital, and, therefore, Dr. Hechavarria

did not discuss Patient L.H. with Dr. Achong because she had

been discharged from the Medical Center before Dr. Achong began

covering Dr. Hechavarria's patients.

11. Patient L.H. presented at the Medical Center at

approximately 2:00 a.m. on February 15, 2004, complaining of

abdominal pains. She was seen by labor and delivery nurse

Jennifer Williams, a registered nurse with 20 years' nursing

experience, with 13 years' experience in the Medical Center's

labor room, and with training as a mid-wife. Nurse Williams had

worked with Dr. Achong at the Medical Center since 1991.

12. Subsequent to Patient L.H.'s arrival at the Medical

Center, Nurse Williams interviewed her, took her medical

history, examined her, and entered the pertinent information on

the Medical Center's Admission Assessment. The Admission

Assessment form was dated February 15, 2004, and the time was

noted as 2:45 a.m. The time written by Nurse Williams'

signature on the Admission Assessment form was 3:00 a.m., and it

appears that the information was obtained and entered on the

form between 2:00 a.m. and 3:00 a.m.

13. Pertinent to this matter, Nurse Williams maintained

several other documents recording Patient L.H.'s condition and

observations and actions taken by Nurse Williams relating to

Patient L.H. Nurse Williams began maintaining a Labor Flow

Record at 2:07 a.m. and she made periodic entries on the Labor

Flow Record related to, among other things, Patient L.H.'s vital

signs, the results of vaginal examinations and fetal monitoring,

uterine activity, and pain intensity at different times during

the night and morning. In addition, Nurse Williams entered on

the Labor Flow Record the time and content of her communications

with Dr. Achong; the first recorded contact between Dr. Achong

and Nurse Williams was recorded on the Labor Flow Record as

2:30 a.m. Nurse Williams also maintained Progress Notes in

which she recorded her observations of Patient L.H. and her

conversations with Patient L.H. The first entry in the Progress

Notes was at 2:35 a.m. 2

14. Nurse Williams' Progress Notes reflect that, at

2:35 a.m., Patient L.H. advised Nurse Williams that she had

contractions and believed she had been in labor since 6:00 p.m.

the previous evening but had waited to come to the Medical

Center until she was certain she was in labor. Patient L.H.

also reported abdominal pain in her upper abdomen that did "not

go away," and Nurse Williams observed that Patient L.H. was

distressed by the pain in her abdomen. Patient L.H. also told

Nurse Williams that she had no ruptured membranes or vaginal

bleeding. Nurse Williams noted that she examined Patient L.H.

and felt contractions but was unable to detect a fetal heart

tone.

15. Nurse Williams reported in the Admission Assessment

form that Patient L.H. was having uterine contractions of

moderate intensity and 60 seconds' duration, that her cervix was

dilated 1-to-2 centimeters, that she had vaginal bleeding that

was bright red, that her blood pressure was 159/118, which she

described as "elevated," and that Patient L.H.'s abdominal pain

was the "worse" pain on a pain scale ranging from 1 to 10; there

is, however, no indication on the Admission Assessment form that

the pain was constant. Nurse Williams also noted on the

Admission Assessment form that she heard no fetal heart rate.

16. Although the time noted on the Admission Assessment

form was 2:45 a.m., it is apparent from a review of the relevant

records that the information included on the Admission

Assessment form was obtained by Nurse Williams over a period of

time extending from the time Patient L.H. presented to her until

3:00 a.m., the time on the Admission Assessment form beside

Nurse Williams' signature.

17. Nurse Williams reported in the "Physician /CNM

in/Called Report" section of the Labor Flow Record that she

contacted Dr. Achong at 2:30 a.m. and conveyed to him the

following information: "[P]atient arrived in ER c/o contractions

since 6 pm last night & observation that no FHT [fetal heart

tone] and contractions palpated." Nurse Williams telephoned

Dr. Achong using his home telephone, even though his beeper

number was also on file at the Medical Center. There is nothing

in the report Nurse Williams gave to Dr. Achong at 2:30 a.m.

that would require that he proceed to the Medical Center and

examine Patient L.H., and he did not violate the standard of

care by failing to do so.

18. Because Dr. Achong did not know Patient L.H.,

Nurse Williams' normal procedure would have been to advise

Dr. Achong of Patient L.H.'s history, including the medications

she was taking, and her vital signs, including her blood

pressure. No notation appears in the Labor Flow Record to

confirm that she gave Dr. Achong this information during her

conversation with him at 2:30 a.m., nor is there a notation in

the 2:30 a.m. entry in the Labor Flow Record that Nurse Williams

told Dr. Achong about the results of her examination of

Patient L.H.'s cervix, Patient L.H.'s complaint of abdominal

pain, or the presence of vaginal bleeding of bright red blood. 3

19. Nurse Williams indicated in her entry in the

"Physician/CNM in/Called Report" section of the Labor Flow

Record that Dr. Achong ordered a "stat," or expedited,

obstetrical sonogram during the 2:30 a.m. contact with

Nurse Williams. The purpose of the obstetrical sonogram was to

determine if the fetus was alive.

20. Although not noted in the Labor Flow Record, the Labor

and Delivery Orders form completed by Nurse Williams indicates

that, at 2:30 a.m., Dr. Achong ordered a complete blood count,

which is routine with a patient in labor; a DIC profile; and a

Comprehensive Metabolic Panel ("CMP"). The Labor and Delivery

Orders form contains standard orders for a woman in labor, but

the DIC profile and the CMP tests were not included on the form

but were ordered specifically by Dr. Achong.

21. A DIC profile is used to determine if a patient has a

problem with blood clotting. The DIC includes an assessment of

prothrombin time and partial thromboplastin time, both of which

indicate different levels at which a patient's blood is able to

clot. It is important to know whether a woman in labor and

delivery has a clotting problem, or coagulopathy, because of the

danger of bleeding, and the classic situation in which DIC

profiles are ordered is when there is fetal demise. Because

Patient L.H. had the high risk factors of overweight and

hypertension and because Nurse Williams could detect no fetal

heart tone, Dr. Achong's order for the DIC profile was

appropriate and met the standard of care.

22. It is also appropriate to order a DIC profile when

there is a concern about placental abruption, which is the

separation of the placenta from the walls of the vagina. A

placental abruption causes a great deal of bleeding, and can

cause death when not treated, because the fetus is still in the

womb and the uterus is not able to contract and constrict the

large blood vessels that attach to the placenta. Although

hypertension is one risk factor for placental abruption, the

symptoms of placental abruption also include fetal demise,

bleeding, constant pain, a decrease in hematocrit, and a number

of other conditions. There is no indication in Patient L.H.'s

medical records that Dr. Achong had sufficient information at

2:30 a.m. that would indicate that Patient L.H. had a possible

placental abruption, and he ordered the DIC profile because of

the lack of fetal heart tones. 4

23. The CMP includes tests for kidney and liver function

and for uric acid. It is used to determine if a woman has

pre-eclampsia, or pregnancy-induced hypertension. Given

Patient L.H.'s history of hypertension and the level of her

blood pressure as reflected in the Admission Assessment form,

Dr. Achong's order for the CMP was appropriate and met the

standard of care in ordering the CMP.

24. All orders for blood tests for women in labor and

delivery are treated as "stat" orders and are processed ahead of

all other test orders except those from the emergency room.

When the situation warrants, a physician may order that the

tests be performed more quickly than the usual "stat" order

would require, and it would be possible to obtain blood-test

results within 45 minutes. There is, however, no indication in

Patient L.H.'s medical records that Dr. Achong had any

information at 2:30 a.m. that might indicate that he should

further expedite Patient L.H.'s blood tests.

25. Nurse Williams reported in her Progress Notes that, at

2:40 a.m., Patient L.H. reported a "gush of something down

there," and Nurse Williams noted that she observed a large

amount of blood; there is, however, no notation in the Progress

Notes regarding the color of the blood. Nurse Williams also

included a notation in the Progress Notes that Patient L.H.'s

cervix was "3cm dilated, 50% effaced, -3 station" to describe

the progress of Patient L.H.'s labor.

26. Nurse Williams reported in the Labor Flow Record that

she contacted Dr. Achong at 2:45 a.m. and conveyed to him the

following information: "Dr. Achong notified of gush of vaginal

bleeding. VE [vaginal examination] 2-3, 50% effaced, -3 station

and that we are awaiting sonogram." The results of

Nurse Williams' vaginal examination of Patient L.H. showed that

Patient L.H. was in active labor. The information that

Patient L.H. experienced a "gush of vaginal bleeding" did not

indicate to Dr. Achong that there was anything more than one

episode of bleeding, which he attributed to an especially heavy

"bloody show," which is the bleeding that occurs when the cervix

is dilating. The notation indicates that Dr. Achong told

Nurse Williams to call him if Patient L.H. went to delivery.

27. The information conveyed to Dr. Achong at 2:45 a.m.,

as reflected in the notation in the Labor Flow Record, was not

sufficient to indicate that Patient L.H. was not proceeding

through labor normally to a vaginal delivery of the dead fetus,

which is preferred over delivery by a Cesarean Section.

Nurse Williams did not include in her records a notation that

she advised Dr. Achong that the "gush of vaginal bleeding"

consisted of a large amount of bright red blood, which would

have been an indication of a possible placental abruption.

28. Some bleeding is normal during labor, but it is

usually a dark color from having been in the uterus and in a

small amount or tickle, although there could be a "gush of

blood" during normal labor. When Dr. Achong was advised by

Nurse Williams that Patient L.H. had a "gush of blood," however,

it was his responsibility to inquire into the amount of blood,

the color of the blood, and the persistency of the bleeding to

determine if Patient L.H. was proceeding with normal labor or if

she was experiencing a hemorrhage or other abnormal condition.

29. Nurse Williams made no entries in the Progress Notes

for Patient L.H. between 2:40 a.m. and 3:40 a.m., when she

reported that the ultrasound had been completed. She further

noted in her Progress Notes: "Report of no fetal heart tones to

Dr. Achong. Orders given." Nurse Williams additionally made a

notation in the Labor Flow Record that, at 3:40 a.m., she

contacted Dr. Achong and reported to him the following:

"Ultrasound report No FHT's given to Dr. Achong. Orders

received." Nurse Williams did not, however, indicate in her

notations what orders were given. Nurse Williams contacted

Dr. Achong through his home telephone number, which was normal

procedure during the nighttime hours.

30. When the sonographer, that is, the person performing

the sonogram, entered Patient L.H.'s room to perform the

sonogram, he noted that Patient L.H. was sitting upright in bed,

was combative, and was in a lot of pain. He also noted that

there was a fair amount of blood on the bed sheets. The

sonographer was able to get Patient L.H. to lie on the bed, and

he performed "a very short ultrasound," 5 and pulled the machine

out of the room and into the hall. He powered the machine back

up and read the numbers off the worksheet on the machine. He

confirmed that the fetus was dead and that the placenta appeared

to be balled up rather than lying smoothly against the uterine

wall, as is normal. While he was writing down the information

from the worksheet on the machine, Nurse Williams approached him

and told him that she had Dr. Achong on the telephone. He told

her that he had "a placental abruption and fetal demise." 6 He

then wrote up his report, left a copy for Nurse Williams, and

went downstairs to process the sonogram images. 7

31. The results of the sonogram were reported on a form

headed "Obstetrical Preliminary Report," which was completed by

the sonographer. A radiologist is usually present at the

Medical Center during daytime hours to read sonograms, but on

the off-hours, it is the practice of the sonographer to present

a sonographer's impression of what was seen during the sonogram.

The sonographer who performed the sonogram on Patient L.H. noted

on the report that her history included obesity, hypertension,

heavy vaginal bleeding, and contractions. He included the

following comments in the report: "Ant/Rt [unintelligible]

placenta appears to be 'balled up[.]' Suggestion of placental

abruption," and, on a separate line, "NO FETAL HEART MOTION SEEN

PT IS COMBATIVE." Finally, at the bottom of the report, the

sonographer noted that a copy of the report was given to

Nurse Williams. There was no notation as to the time the

sonographer gave the report to Nurse Williams, but, even if she

had the report, she did not read it to Dr. Achong; rather, she

put the copy of the report in Patient L.H.'s chart for

Dr. Achong to review when he came to the hospital and gave him

only a verbal report.

32. Nurse Williams did not tell Dr. Achong during the

3:40 a.m. telephone conversation that the sonographer had

reported a possible placental abruption. 8 Dr. Achong was

familiar with and had treated placental abruptions prior to

February 15, 2004, and he always treated patients with placental

abruptions on an emergency basis because both the mother and the

baby could die if treatment was not received as soon as

possible. Had Nurse Williams advised Dr. Achong that the

sonographer had told her that he found a placental abruption or

that the sonogram report included a reference to a possible

placental abruption, he would have gone to the Medical Center

immediately.

33. At 3:45 a.m., Nurse Williams noted in her Progress

Notes that she gave Patient L.H. Nubain and Phenergan for her

painful contractions. There is no mention of continued vaginal

bleeding in this entry in the Progress Notes.

34. At 4:15 a.m., Nurse Williams noted in her progress

notes that Patient L.H. was sleeping quietly and was relaxed and

that Pitocin had been administered in accordance with

Dr. Achong's orders. Pitocin is used to induce labor, augment

labor, or to stop bleeding. In this case, Dr. Achong ordered

the Pitocin to regulate Patient L.H.'s contractions. There is

no mention in the 4:15 a.m. entry in the Progress Notes of

continued vaginal bleeding.

35. The next entry in Nurse Williams' Progress Notes was

made at 5:15 a.m., when Nurse Williams reported that she had

observed vaginal bleeding, that a vaginal examination showed

dilation of four centimeters, and that Patient L.H. was very

restless and moving around the bed.

36. Nurse Williams received the laboratory report showing

the results of the blood tests ordered by Dr. Achong at or

around 5:00 a.m. According to the laboratory report, the blood

for these tests was drawn at or about 3:20 a.m.; the report did

not show any critical values in the blood sample.

Nurse Williams attempted to contact Dr. Achong to convey these

results to him. She noted on the Labor Flow Record that, at

5:15 a.m. "Dr. Achong beeped re lab results. Phone message left

on home phone to call LR [Labor Room]." Nurse Williams made

another entry on the Labor Flow Record that, at 6:55 a.m., she

left a "message to Dr. Achong answering machine at home re labor

progress update and labs."

37. Dr. Achong was not, however, at home to receive the

telephone calls or the messages. At or about 5:00 a.m. on

February 15, 2004, Dr. Achong received a telephone call on his

home telephone from Hialeah Hospital advising him that one of

his patients or one of Dr. Hechavarria's patients was in active

labor and about to deliver. Shortly after receiving the

telephone call, Dr. Achong left his home to travel to Hialeah

Hospital. He carried his beeper with him, but he did not

receive any calls on the beeper. When he arrived at Hialeah

Hospital and prepared to go into the delivery room, he gave it

to the circulating nurse in case he should receive a beeper call

while he was in the delivery room.

38. Nurse Hayes, who had replaced Nurse Williams when

Nurse Williams' shift had ended at 7:00 a.m., made a notation on

the Labor Flow Record that, at 7:15 a.m., she called Dr. Achong

and left a message.

39. At 7:25 a.m., while he was in the delivery room, Nurse

Hayes called his beeper. The circulating nurse had his beeper,

and she notified him that he had received a call and told him

the number. He recognized the number of the Medical Center, and

he told the nurse to call the Medical Center and let them know

that he was in the delivery room at Hialeah Hospital. Nurse

Hayes asked that he call back as soon as possible.

40. Blood for additional blood tests was drawn at or about

7:30 a.m., and the results, which were available within

15 minutes, showed several critical values that indicated that

Patient L.H. was entering coagulopathy.

41. At 7:38 a.m., as soon as he finished the delivery, he

called the Medical Center and spoke with Nurse Hayes, who gave

him a report on the status of Patient L.H. She told him that

Patient L.H. had heavy bleeding and that the vaginal examination

showed no change in the cervix. Dr. Achong ordered the Pitocin

turned off.

42. When Dr. Achong arrived at the Medical Center at

7:56 a.m., he found Patient L.H. very combative, bleeding, and

with very bad vital signs. He ordered a "stat" Cesarean Section

and ordered a blood transfusion. Patient L.H. died at

8:38 a.m., before any of the measures ordered by Dr. Achong

could be implemented. The cause of death was recorded as

placental abruption.

Summary

43. In summary, the evidence presented by the Department

is not of sufficient weight to establish that Nurse Williams

conveyed to Dr. Achong the information necessary for him to

conclude that he should personally conduct a clinical evaluation

of Patient L.H.; that he should consider the possibility that

Patient L.H. had placental abruption; or that he should have

provided medical assistance to Patient L.H. prior to his contact

with Nurse Hayes at 7:38 a.m. Nurse Williams' Progress Notes

report only two remarkable items: There were no fetal heart

tones detected by physical examination or by sonogram; and, at

2:40 a.m., Patient L.H. reported a "gush of something" and

Nurse Williams observed a large amount of blood.

44. Neither Nurse Williams' entries in the Labor Flow

Record regarding her contacts with Dr. Achong nor her testimony,

to the extent that it has been found persuasive, is sufficient

to establish that she advised Dr. Achong that she had observed a

large amount of red blood at 2:40 a.m. or that the sonographer

detected a possible placental abruption in the sonogram.

45. Finally, Nurse Williams did not follow the protocol

that required her to contact Dr. Achong through his beeper when

she did not get an answer on his home telephone; she tried his

beeper only once, at 5:15 a.m., and when she failed to reach

him, left three messages on his home telephone. The Department

presented no evidence to establish that Nurse Williams attempted

to reach Dr. Achong by beeper between 5:15 a.m. and 7:55 a.m.,

the time of her last call to Dr. Achong's home telephone.

46. Furthermore, the Department did not present evidence

of sufficient weight to establish that Dr. Achong failed to

initiate the appropriate procedures after he arrived at the

Medical Center and examined Patient L.H. at or around 8:00 a.m.

47. The evidence presented by the Department is, however,

of sufficient weight to establish that Dr. Achong should have

questioned Nurse Williams further when she advised him at

2:45 a.m. that she had observed a "gush" of vaginal bleeding.

Even though vaginal bleeding may not be not unusual during

labor, a report of a "gush" of blood should have alerted

Dr. Achong to a potential problem. Although a physician

practicing obstetrics is meeting the standard of care when

relying on labor room nurses to advise him or her of the

clinical status of labor and delivery patients and of any

unusual symptoms exhibited by the patients, it is also incumbent

on the physician to inquire further if a patient is presenting

unusual symptoms. The persuasive evidence establishes that

Dr. Achong violated the standard of care when he failed to ask

Nurse Williams for additional information on Patient L.H.'s

status during their 2:45 a.m. telephone conversation. Had he

inquired further, Dr. Achong would have been alerted to the

possibility that Patient L.H. had a placental abruption and

would have gone to the hospital to provide appropriate care for

Patient L.H.

CONCLUSIONS OF LAW

48. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2009).

49. Section 458.331(1), Florida Statutes, authorizes the

Board to impose penalties ranging from the issuance of a letter

of concern to revocation of a physician's license to practice

medicine in Florida if a physician commits one or more acts

specified therein. In its Administrative Complaint, the

Department has alleged that Dr. Achong violated

Section 458.331(1)(t), Florida Statutes, which provides that the

following acts constitute grounds for disciplinary action by the

Board:

(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 $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

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. 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 must so specify.

50. The "level of care, skill, and treatment which is

recognized by a reasonably prudent similar physician as being

acceptable under similar conditions and circumstances" is

commonly referred to as the "standard of care."

51. The Department seeks to impose penalties against

Dr. Achong 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 violations alleged in

the Administrative Complaint 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

(2009)("Findings of fact shall be based on a preponderance of the

evidence, except in penal or licensure disciplinary proceedings

or except as otherwise provided by statute.").

52. "Clear and convincing" evidence was described by the

court in Evans Packing Co. v. Department 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 distinctly 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, without 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).

53. The Department alleged in the Administrative Complaint

that Dr. Achong violated Section 458.331(1)(t), Florida

Statutes, because he violated the standard of care by failing to

personally evaluation Patient L.H. in a timely manner. Based on

the findings of fact herein, the Department failed to prove this

allegation by clear and convincing evidence. Based on the

information conveyed to him by Nurse Williams, on whom he

appropriately relied, Dr. Achong had no reason to present

himself at the Medical Center and personally examine

Patient L.H. According to the information provided by

Nurse Williams, Patient L.H. was progressing normally with

labor; Patient L.H.'s report of abdominal pain and her

hypertension were not sufficient risk factors, of themselves, to

alert Dr. Achong that Patient L.H. needed his personal

attention. The fact that the fetus was dead was also not a

sufficient risk factor, even taken together with Patient L.H.'s

abdominal pain and history of hypertension, to alert Dr. Achong

that Patient L.H. needed his personal attention. It was within

the standard of care for Dr. Achong to plan to deliver the fetus

vaginally and to rely on Nurse Williams to monitor and report to

him on the status of her labor. Finally, based on the findings

of fact herein, Dr. Achong did not violate the standard of care

by failing to personally attend Patient L.H. based on the

Nurse Williams' notifying him that the sonogram showed no fetal

motion. This merely confirmed Nurse Williams' earlier report

that she had detected no fetal heart tones.

54. The Department alleged in the Administrative Complaint

that Dr. Achong violated Section 458.331(1)(t), Florida

Statutes, because he violated the standard of care by failing to

elicit by telephone sufficient information regarding

Patient L.H.'s clinical status. Based on the findings of fact

herein, the Department proved this allegation by clear and

convincing evidence. Based on the information conveyed to him

by Nurse Williams that Patient L.H. had experienced a "gush" of

vaginal bleeding, Dr. Achong failed to meet the standard of care

because he failed to inquire into the color, volume, and

persistency of the blood. Had he learned at 2:45 a.m. that

Patient L.H.'s bleeding consisted of a large amount of red

blood, he would have been more alert to the possibility that

Patient L.H. had a placental abruption and needed his personal

attention. He may not, however, have reached this conclusion

because Nurse Williams' Progress Notes fail to indicate that the

vaginal bleeding was constant, which would be one symptom of

placental abruption.

55. The Department alleged in the Administrative Complaint

that Dr. Achong violated Section 458.331(1)(t), Florida

Statutes, because he violated the standard of care by failing to

consider whether Patient L.H. had presented with placental

abruption and treat her appropriately for that condition. Based

on the findings of fact herein, the Department failed to prove

this allegation by clear and convincing evidence. Setting aside

his failure to elicit further information about the vaginal

bleeding, Dr. Achong had no reason to suspect that Patient L.H.

had a placental abruption based on the information conveyed to

him by Nurse Williams, on whom he appropriately relied for

complete information regarding Patient L.H.'s clinical status.

Nurse Williams' notes do not reflect that she advised Dr. Achong

of the amount or color of Patient L.H.'s vaginal bleeding, and

the contention that Nurse Williams advised Dr. Achong at

3:40 a.m. that the sonographer found a "suggestion" of placental

abruption is not supported by credible evidence.

56. The Department alleged in the Administrative Complaint

that Dr. Achong violated Section 458.331(1)(t), Florida

Statutes, because he violated the standard of care by failing to

provide appropriate, timely medical assistance to Patient L.H.

Based on the findings of fact herein, the Department failed to

prove this allegation by clear and convincing evidence. When

Dr. Achong examined Patient L.H. at approximately 8:00 a.m., the

measures he took fell within the standard of care for treating a

patient with placental abruption.

57. The disciplinary guidelines for the Board of Medicine

are found in Florida Administrative Code Rule 64B8-8.001(1).

The penalties provided for a violation of Section 458.331(1)(t),

Florida Statutes, range from "two (2) years['] probation to

revocation and denial, and an administrative fine from $1,000.00

to $10,000.00." Fla. Admin. Code R. 648-8.001(1)(a).

58. The Department's proposed penalty in this case

includes elements not found in the penalty guidelines, so it is

necessary to consider Florida Administrative Code Rule 64B8-

8.001(3), which provides that the Board of Medicine may consider

aggravating and mitigating factors in determining whether to

deviate from the penalties provided in Florida Administrative

Code Rule 64B8-8.001(1). Florida Administrative Code Rule 64B8-

8.001(3) provides:

(3) 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, Florida Statutes, 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 factors.

59. The significant aggravating factor in this case is the

death of Patient L.H. Mitigating factors include the

Department's proving one violation of the standard of care among

the four identified in the Administrative Complaint; the fact

that Dr. Achong had not previously been charged with or found

guilty of committing any of the offenses alleged in the

Administrative Complaint; and the lack of any previous

disciplinary actions taken against Dr. Achong. These

aggravating and mitigating factors have been considered in

determining the recommended penalty, which deviates from the

penalty range specified in Florida Administrative Code Rule 648-

8.001(1)(t).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Health, Board of

Medicine, enter a final order finding that Dr. Achong violated

Section 458.331(1)(t), Florida Statutes, by failing to elicit

further information from Nurse Williams regarding the gush of

blood she observed in Patient L.H and imposing the following

penalties:

(a) Issuance of a letter of reprimand;

(b) Imposition of administrative fine in the amount of

$2,500.00; and

(c) Six months' probation under such conditions as the

Board of Medicine determines appropriate, should Dr. Achong ever

resume the practice of medicine.

DONE AND ENTERED this 4th day of January, 2010, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA M. HART

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 4th day of January, 2010.

ENDNOTES

1 / All references to the Florida Statutes are to the 2003

edition unless otherwise indicated.

2 / In attempting to compile a chronological record of the events

that took place after Patient L.H. was admitted to the Medical

Center labor room, it become apparent that there are

discrepancies in the times logged for various events. These

discrepancies are, for the most part, insignificant, and the

times at which certain events took place are included in the

findings of fact only when relevant to the issues presented.

3 / Nurse Williams testified as follows:

I told Dr. Achong -- he doesn’t know this

lady, so I would've told him what she

complains of; her past history regarding her

high blood pressure; the vaginal examination

because that was one of the questions he

should've asked me -- he would've asked

me -- I'm sorry. So I would've had that

ready to tell him. And what medication if

she was on any for her high blood pressure;

how she presented; whether she was in pain

or not and I would've told him that I didn’t

hear a fetal heart rate and the vaginal

examination included that there was bright

red blood.

Transcript at page 47. Nowhere in her testimony did

Nurse Williams indicate that she recalled telling Dr. Achong

that Patient L.H. had vaginal bleeding of bright red blood.

4 / Even though Nurse Williams recorded Patient L.H.'s blood

pressure on the Labor Flow Record as 159/118 at 2:25 a.m.,

Patient L.H.'s blood pressure had decreased to 149/87 by

2:30 a.m. There is nothing in the record to indicate which

blood pressure level was reported to Dr. Achong during the

2:30 a.m. telephone call between him and Nurse Williams, and it

is not evident from the record that Dr. Achong ordered the DIC

profile because of Patient L.H.'s history of hypertension.

5 / Transcript at page 94.

6 / Transcript at page 95.

7 / The testimony of the sonographer that he heard Nurse Williams

tell whoever was on the telephone that there was placental

abruption and fetal demise is not sufficient to establish that

Nurse Williams told Dr. Achong that Patient L.H. had a placental

abruption. First, the sonographer did not establish in his

testimony that he was standing close enough to Nurse Williams

when she was on the telephone to overhear her conversation.

Second, he did not have personal knowledge of the identity of

the person to whom Nurse Williams was speaking on the telephone.

8 / There is no indication in Nurse Williams' Progress Notes or

in the Labor Flow Record that she advised Dr. Achong at

3:40 a.m. that the sonogram showed that Patient L.H. had a

possible placental abruption; her notes referred only to the

lack of fetal heart tones. In addition, during her testimony,

Nurse Williams was given a copy of the sonographer's report

before she had a chance to testify from her memory of the

events, and she testified only that the sonographer wrote in the

report that there was a suspicion of placental abruption, that

Dr. Achong was notified of the report at 3:40 a.m., and that she

was certain she told Dr. Achong about the placental abruption

because it was included in the sonographer's reportanscript

at pages 54-56. It is significant in assessing the credibility

of her testimony on this point that Nurse Williams could not

have received a copy of the sonographer's report at the time she

was on the telephone with Dr. Achong and that she could not

provide a reason for her failure to include reference to the

placental abruption in the Labor Flow Record or Progress Notes.

Transcript at page 57. The unexplained absence in the Labor

Flow Record and Progress Notes of any mention of placental

abruption renders it more likely than not that Nurse Williams

failed to tell Dr. Achong about a possible placental abruption

during her conversation with him about the results of the

sonogram at 3:40 a.m.

COPIES FURNISHED:

Charles B. Patrick, Esquire

1648 South Bayshore Drive

Miami, Florida 33133

William Webster, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3250

Christopher C. Torres, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

Dr. Ana M. Viamonte Ros, Secretary

State Surgeon General

Department Of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 1701

Josefina M. Tamayo, General Counsel

Department Of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 1701

R. S. Power Agency Clerk

Department Of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 1701

Larry Mcpherson, Executive Director

Board Of Medicine

Department Of Health

4052 Bald Cypress Way, Bin C03

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.