09-004679PL Department Of Health, Board Of Medicine vs. Matthew J. Kachinas, M.D. Status: Closed Recommended Order on Tuesday, January 26, 2010.

Summary: Respondent committed gross malpractice when he failed to identify the twin with anomalies in a selected feticide and performed the procedure on the normal twin.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case Nos. 09-4678PL

) 09-4679PL

MATTHEW J. KACHINAS, M.D., ) 09-4680PL

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in these cases

on, November 18 and 19, 2009, in Sarasota, Florida, before

Susan B. Harrell, a designated Administrative Law Judge of the

Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Diane K. Kiesling, Esquire

Grace Kim, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399

For Respondent: Matthew J. Kachinas, M.D., pro se

1590 Harbor Cay Lane

Longboat Key, Florida 34228

STATEMENT OF THE ISSUES

The issues in these cases are whether Respondent violated

Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes

(2002), in DOAH Case No. 09-4678PL; Subsections 456.072(1)(l),

DOAH Case No. 09-4679PL; and Subsections 458.331(1)(m) and

458.331(1)(t), Florida Statutes (2005), in DOAH Case

No. 09-4680PL, and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On December 13, 2006, the Department of Health (Department)

filed a two-count Administrative Complaint before the Board of

Medicine (Board) against Respondent, Matthew J. Kachinas, M.D.

(Dr. Kachinas), alleging that Dr. Kachinas violated Subsections

458.331(1)(m) and 458.331(1)(t), Florida Statutes (2002).

Dr. Kachinas requested an administrative hearing, and the case

was forwarded to DOAH on August 26, 2009, for assignment to an

Administrative Law Judge. The case was assigned DOAH Case

No. 09-4678PL.

On February 27, 2007, the Department filed a three-count

Administrative Complaint before the Board against Dr. Kachinas,

alleging that Dr. Kachinas violated Subsections 456.072(1)(l),

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

Dr. Kachinas requested an administrative hearing, and the case

was forwarded to DOAH on August 26, 2009, for assignment to an

Administrative Law Judge. The case was assigned DOAH Case

No. 09-4679PL.

On May 1, 2008, the Department filed a two-count

Administrative Complaint before the Board against Dr. Kachinas,

alleging that Dr. Kachinas violated Subsections 458.331(1)(m)

and 458.331(1)(t), Florida Statutes (2005). Dr. Kachinas

requested an administrative hearing, and the case was forwarded

to DOAH on August 26, 2009, for assignment to an Administrative

Law Judge. The case was assigned DOAH Case No. 09-4680PL.

On August 31, 2009, the Department filed Requests for

Admissions in each of the three cases. By Order of

Consolidation dated September 22, 2009, the three cases were

consolidated. On October 7, 2009, the Department filed

Petitioner’s Motion to Compel, requesting, among other things,

that Dr. Kachinas be compelled to respond to the Requests for

Admissions. The motion was heard by telephonic conference call

on October 26, 2009. During the motion hearing, the undersigned

explained to Dr. Kachinas that a failure to respond to the

Requests for Admissions would result in the requests being

deemed admitted. An Order was entered on October 26, 2009,

requiring Dr. Kachinas to respond to the Requests for Admissions

on or before November 2, 2009. The time for serving the

responses to the Requests for Admissions was extended to

November 4, 2009, by an Order dated November 2, 2009.

On November 10, 2009, the Department filed Petitioner’s

Renewed Motion to Compel. Dr. Kachinas failed to file responses

to some of the Requests for Admissions, and the requests for

which no responses were filed were deemed admitted by Order

dated November 13, 2009.

At the final hearing, the Department called the following

witnesses: Edgard Ramos-Santos, M.D.; Roberta Elaine Bruce;

Jorge Gomez, M.D.; Carol Petraski; and Babette Smith Agett.

Petitioner’s Exhibits 1 through 11 and 13 through 17 were

admitted in evidence. At the final hearing, Dr. Kachinas

testified in his own behalf. Respondent’s Exhibit 1 was

admitted in evidence.

The three-volume Transcript of the final hearing was filed

on December 15, 2009. The parties agreed to file their proposed

recommended orders within ten days of the filing of the

Transcript. Petitioner filed its Proposed Recommended Order on

December 28, 2009. On December 28, 2009, Dr. Kachinas filed a

post-hearing submittal, which included a blank Monthly Report of

Induced Terminations of Pregnancy and a letter dated October 6,

2008, from the Agency for Health Care Administration to

Dr. Kachinas. To the extent that Dr. Kachinas may have been

relying on the report and letter as exhibits, those documents

are not admitted in evidence.

FINDINGS OF FACT

1. At all times relating to the three Administrative

Complaints at issue, Dr. Kachinas was a licensed medical doctor

within the State of Florida, having been issued license number

ME 65595. He is board-certified by the American Board of

Obstetrics and Gynecology.

DOAH CASE NO. 09-4678PL

2. In 2002, Dr. Kachinas was working at several clinics

that were owned by the same individual. He received payment

from Sarasota Women’s Health Center and Tampa Women’s Health

Center. His primary office was located in Sarasota, but he

rotated through the offices located in Clearwater and Tampa.

3. He was advised that he would be attending a patient in

the Tampa office. One of the medications that he used in his

method of sedating patients, Propofol, was not available in the

Tampa office. He took a vial of the Propofol and took it to the

Tampa office, holding the vial in his hand.

4. While at the Tampa office, Dr. Kachinas drew the

Propofol into a syringe. He did not have to use the Propofol

for the patient. He placed the syringe filled with Propofol

inside the sock that he was wearing. Dr. Kachinas transported

the syringe back to the Tampa office. He used this method of

transport so that the office manager in the Tampa office would

not know that he was transporting the drug.

5. When he got back to the Tampa office, he placed the

filled syringe in a secure place. Propofol must be used within

24 hours after being drawn into a syringe. The next day it was

decided that the drug would not be used on another patient, and

Dr. Kachinas wasted the syringe filled with Propofol. At the

clinics where Dr. Kachinas worked, there were no logs to keep

track of the drugs, except for the drug Fentanyl.

6. Dr. Kachinas acknowledged in a letter dated January 30,

2007, to the Department of Health that his method of

transporting Propofol was “unorthodox.” In the same letter,

Dr. Kachinas acknowledged that “a reasonable and prudent doctor

would not generally transport medication in that manner, but

foolishness seemed reasonable in that aberrant environment.”

DOAH CASE NO. 09-4679PL

7. On March 26, 2004, B.S. presented to Premier Institute

for Women’s Health (Premier) for an elective termination of

pregnancy. Dr. Kachinas was the physician who handled the

procedure.

8. Dr. Kachinas maintained records relating to B.S. at

Premier. In 2004, Petitioner subpoenaed B.S.’s records from

Dr. Kachinas’ office. Petitioner received a packet of

documents, which purported to be B.S.’s medical records. In

July 2006, Lori Jacobs, an employee of Premier, sent Petitioner

another copy of the documents sent in 2004. Neither the records

provided in 2004 nor the records provided in 2006 contain

progress notes for B.S.’s treatment on March 26, 2004, and

March 27, 2004.

9. For the first time on November 5, 2009, Dr. Kachinas

produced a three-page document, which he claimed was part of

B.S.’s medical records that had been misplaced in B.S.’s

insurance file. Two of the pages purported to be progress notes

for March 26 and 27, 2004. The third page, which is also

labeled as a progress note, is dated June 29, 2004, and appears

to relate to insurance claims. The two pages relating to

March 26 and 27 are on paper which is a different color from the

progress note relating to insurance claims and the progress

notes which were previously furnished in 2004 and 2006. 1

Additionally, the progress notes for March 26 and 27, 2004,

contain a break in each of the ruled lines on the sheets on both

the right and left sides of the sheets. The insurance progress

note and the progress notes furnished in 2004 and 2006 do not

have such breaks in the ruled lines.

10. Dr. Kachinas completed a Laminaria Insertion report

documenting procedures done on March 26, 2004, and March 27,

2004. The March 26, 2004, report documents the insertion of

Laminaria and administration of medications. The comment

section of the report documents the removal of the Laminaria and

administration of medications on March 27, 2004. The comment

section continues to document the administration of medications

and the taking of vital signs after the removal of the Laminaria

and also the transfer of the patient to Doctors Hospital. The

detail on the comment sections suggests that Dr. Kachinas was

making his progress notes in the Laminaria Insertion report.

11. The failure to produce the purported progress notes

for March 26 and 27, 2004, until November 5, 2009; the

difference in the color of the paper of the March 26 and 27,

2004, purported progress notes and the other progress notes in

Dr. Kachinas’ records; the presence of breaks in the ruled lines

on the March 26 and 27, 2004, purported progress reports, which

do not appear on the other progress notes; and the detail of the

comments on the Laminaria Insertion report support the

conclusion that the progress notes submitted as Respondent’s

Exhibit 1 were not done contemporaneously with the treatment

given to B.S. on March 26 and 27, 2004, but were prepared for

this proceeding. Thus, the progress notes for March 26 and 27,

2004, are not credited.

12. Dr. Kachinas determined B.S.’s pregnancy to be at

approximately 23½-to-24 weeks’ gestation, the last week of the

second trimester. He confirmed by sonogram that the gestation

period was 24 weeks.

13. On March 26, 2004, Dr. Kachinas began the induction of

labor ordering the insertion of ten Laminaria, which are

osomotic cervical dilators which cause the cervix to open and

allow easier emptying of the uterus.

14. Dr. Kachinas’ records do not show that B.S.’s medical

history was taken prior to the insertion of the Laminaria.

However, Dr. Kachinas did take a medical history of B.S. at the

time of her admission to Doctors Hospital, and the history is

recorded in the medical records.

15. Prior to the insertion of the Laminaria, Dr. Kachinas’

records do show that a limited physical examination of B.S. was

done. The Laminaria Insertion report shows that B.S.’s baseline

blood pressure, temperature, and pulse were taken and recorded.

There was no expert testimony of what other physical examination

should have been done.

16. Dr. Kachinas injected the fetus with Digoxin, which is

injected directly into the fetus to stop the fetal heartbeat,

causing an Intrauterine Fetal Demise (IUFD). The injection of

the Digoxin was not documented in B.S.’s medical records. B.S.

was then released from Premier.

17. On March 27, 2004, B.S. returned to Premier. Prior to

removing the Laminaria, Dr. Kachinas did an ultrasound and

determined that there was still fetal heart activity and fetal

movements. Dr. Kachinas continued the labor induction procedure

by removing the Laminaria and administering Cytotec and high

dosages of Pitocin. When the Laminaria were removed, there was

a rupture of membranes with a loss of essentially all the

amniotic fluid.

18. Sometime during the afternoon of March 27, 2004,

Dr. Kachinas did another ultrasound and determined that there

was no fetal heart activity. Based on the length of time from

the Digoxin injection to the ultrasound showing no fetal heart

activity, the loss of amniotic fluid, and the administering of

medication to cause contractions, Dr. Kachinas determined that

the Digoxin injection was not the cause of death.

19. On March 27, 2004, at approximately 6:30 p.m.,

Dr. Kachinas transferred B.S. to Doctors Hospital and had her

admitted to the hospital for failure to progress with the

induction of labor procedure. While at the hospital, B.S.

continued to experience pain.

20. On March 28, 2004, Dr. Kachinas performed the

following procedures on B.S.: mini-laparotomy, hysterotomy,

removal of products of conception, and a modified Pomeroy

bilateral tubal ligation. In his description of the procedures,

he stated that the fetal demise was at least of 48 hours

duration. However, Dr. Kachinas’ records do not reflect the

time of the fetal demise. Jorge Gomez, M.D., Petitioner’s

expert witness, credibly testified that a physician is required

to document the time of the fetal demise.

21. In the hospital records following B.S.’s surgery,

Dr. Kachinas listed the post-operative diagnosis as a failure to

induce labor, an intrauterine fetal demise, a thin umbilical

cord, and asymmetric intrauterine growth retardation, a

condition in which the fetus is smaller than expected for the

number of weeks of pregnancy.

22. An autopsy was performed on the fetus. A surgical

pathology report was also issued. The pathology report showed

mild infarcts on the maternal side.

23. On the fetal death certificate, Dr. Kachinas listed

the immediate causes for the IUFD as a possible cord incident

and multiple placental infarctions. Dr. Kachinas did not

document the elective termination or the Digoxin injection on

the fetal death certificate.

24. Dr. Gomez disagrees with the reasons for IUFD given on

the death certificate. His credible reading of the pathology

report does not indicate that the infarcts were severe enough to

have contributed to the fetal demise. His credible reading of

the pathology report does not indicate that there was any

evidence of a cord incident. Dr. Gomez is of the opinion that

the cause of death should have been listed as elective

termination. Dr. Gomez’ opinion is credited. However,

Dr. Gomez did not give an opinion on whether the fetal demise

was caused by the injection of Digoxin.

DOAH CASE NO. 09-4680PL

25. On December 13, 2005, K.M. was seen by Walter J.

Morales, M.D., at Florida Perinatal Associates, which

specializes in internal fetal medicine. Dr. Morales performed

an ultrasound on K.M., who was pregnant with twins as a result

of in vitro fertilization.

26. The ultrasound revealed that the twins were fraternal,

meaning that each twin had a separate placenta and a separate

sac. One of the twins, Twin A, had an anomaly called a cystic

hygroma, which results from an obstruction, causing the

lymphatic fluid, which normally drains into the juglar vein, to

accumulate in the neck area. Approximately 50 percent of the

fetuses which have this anomaly in the first trimester also have

a chromosomal anomaly, such as Down syndrome.

27. The decision was made to have K.M. return to Florida

Perinatal Associates in three weeks for further evaluation. On

January 3, 2006, Edgard Ramos-Santos, M.D., a partner of

Dr. Morales, performed another ultrasound on K.M.

Dr. Ramos-Santos found that Twin A, a male, had a cystic

hydroma, a thickening of the nuchal fold 2 , and shortened femur

and humerus. These findings are soft markers for abnormal

chromosomes. The ultrasound also revealed a possible heart

defect. At the time of the ultrasound, Twin A was cephalic

bottom, meaning that Twin A was positioned lowest in the uterus.

28. Dr. Ramos-Santos also performed an amniocentesis on

Twin A on the same date as the ultrasound. The amniocentesis

showed that Twin A had an abnormal chromosome pattern compatible

with trisomy 21 or Down syndrome.

29. Both ultrasounds showed that Twin B, a female,

appeared to be normal. At the request of K.M., no amniocentesis

was performed on Twin B on January 3, 2006. At the time of the

ultrasound performed on January 3, 2006, the presentation of

Twin B was cephalic right.

30. The findings of the January 3, 2006, ultrasound were

discussed with K.M. and her husband. On January 9, 2006,

Dr. Ramos-Santos discussed the results of the amniocentesis with

K.M.’s husband. It was decided that a selective feticide would

be performed on Twin A. Selective feticide is a procedure in

which a solution of potassium hydroxide is injected into the

fetus’ heart to make the heart stop beating. K.M. was referred

to Dr. Kachinas at Premier for the selective feticide.

31. On January 10, 2006, Roberta Bruce, a nurse at Florida

Perinatal Associates, sent to Premier by facsimile transmission

the January 3, 2006, ultrasound report for K.M. and K.M.’s

insurance information. The cover page for the facsimile

transmission included a note from Ms. Bruce, which stated:

“* FYI Fetus have different gender. The male is the affected

one.”

32. The standard of care as specified in Section 766.102,

Florida Statutes (2005), requires a physician performing a

selective feticide to correctly identify the affected fetus.

Dr. Kachinas did not correctly identify Twin A prior to

performing the selective feticide and performed the procedure on

Twin B, the normal fetus.

33. Dr. Kachinas performed an ultrasound on K.M., but

failed to identify the correct position of Twin A in relation

to K.M. The ultrasound done on January 3, 2006, by

Dr. Ramos-Santos showed that Twin A was located at the bottom

and Twin B was located to the right of K.M. In his progress

notes, Dr. Kachinas placed Twin A on the right and Twin B on the

left. Although it is possible for twins to shift positions, it

is not probable that the twins shifted from left to right.

34. Dr. Kachinas performed an ultrasound, but failed to

identify that Twin A was the fetus with multiple anomalies.

Although the standard of care required Dr. Kachinas to do a

Level 2 ultrasound evaluation, a Level 1 ultrasound evaluation

would have identified the cystic hygroma, the shortened long

bones, and the sex of Twin A. Dr. Kachinas failed to perform an

adequate ultrasound evaluation by failing to identify the

anomalies and the gender of Twin A.

35. Dr. Kachinas’ notes do not show whether Twin A or

Twin B had anomalies. His notes did not identify the sex of

each of the twins. His notes did not document the attempts that

Dr. Kachinas made to identify the anomalies such as a recording

of the length of the long bones or any examination made to

identify the sex of each of the twins.

36. On January 24, 2006, K.M. returned to Florida

Perinatal Associates for another consultation. Dr. Morales

performed another ultrasound, which revealed that Twin A, who

had the anomalies, was still viable. The ultrasound revealed

the continued presence of a cystic hygroma, the thickening of

the nuchal fold, shortened extremities, and a congenital heart

defect. The ultrasound also showed that the viable twin was

male. The presentation of Twin A was shown by the ultrasound as

cephalic bottom.

CONCLUSIONS OF LAW

37. 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).

38. Subsection 458.331(1)(m), Florida Statutes (2002,

2003, 2005), provides that the following acts constitute grounds

for discipline:

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.

39. Subsection 458.331(1)(t), Florida Statutes (2002,

2003), provides that disciplinary action may be taken for the

following conduct:

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 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.

In 2003, the following provision was added to Subsection

458.331(1)(t), Florida Statutes:

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.

DOAH CASE NO. 09-4678PL

40. In Count 1 of the Administrative Complaint, Petitioner

alleges that Dr. Kachinas violated Subsection 458.331(1)(t),

Florida Statutes (2002), by “remov[ing] drug vials from a clinic

and transport[ing] them to another clinic by strapping them to

his leg and covering the vial with his sock and pants.” By his

own admission in the January 30, 2007, letter to the Department,

Dr. Kachinas agreed that a reasonable and prudent physician

would not transport drugs in that manner. Petitioner has

established by clear and convincing evidence that Dr. Kachinas

failed to practice medicine with that level of care, skill, and

treatment which is recognized by a reasonably prudent physician

as being acceptable under similar conditions and circumstances

in violation of Subsection 458.331(1)(t), Florida Statutes

(2002).

41. In Count 2 of the Administrative Complaint, Petitioner

alleged that Dr. Kachinas violated Subsection 458.331(1)(m),

Florida Statutes (2002), by “fail[ing] to document the

administration of drugs to patients that he removed from one

clinic and transported to another clinic and [by failing] to

justify his course of treatment.” Petitioner has not

established that Dr. Kachinas failed to document the

administration of drugs to patients. The evidence did not

establish that any drug which he transported was administered to

a patient. Since no drugs were administered, Petitioner has

failed to establish that Dr. Kachinas failed to justify his

course of treatment. Thus, Petitioner has failed to establish

that Dr. Kachinas violated Subsection 458.331(1)(m), Florida

Statutes (2002).

DOAH CASE NO. 09-4679PL

42. In the Administrative Complaint, Petitioner alleges

that Dr. Kachinas violated Subsection 456.072(1)(l), Florida

Statutes (2003), which provides:

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(l) Making or filing a report which the

licensee knows to be false, intentionally or

negligently failing to file a report or

record required by state or federal law, or

willfully impeding or obstructing another

person to do so. Such reports or records

shall include only those that are signed in

the capacity of a licensee.

43. Petitioner alleges that Dr. Kachinas violated

Subsection 456.072(1)(l), Florida Statutes (2003), in one or

more of the following ways:

a. By listing the cause of death on the

fetal death certificate as stillborn by a

probable cord incident, when the actual

cause of death was the Digoxin injection

administered during the elective termination

procedure;

b. By failing to include the elective

termination of pregnancy, by digoxin

injection, on the fetal death certificate.

44. Petitioner has failed to establish by clear and

convincing evidence that the Digoxin injection was the cause of

death. Petitioner has failed to establish by clear and

convincing evidence that Dr. Kachinas violated Subsection

456.072(1)(l), Florida Statutes (2003). The evidence does not

establish that Dr. Kachinas knew that the cause of death which

he listed was in error. He felt that the Digoxin injection did

not cause the fetal demise.

45. Petitioner alleges that Dr. Kachinas violated

Subsection 458.0331(1)(m), Florida Statutes (2003), in one or

more of the following ways:

a. By failing to document an adequate

patient history;

b. By failing to document a physical

examination prior to the insertion of the

Laminaria;

c. By failing to document the time of the

fetal demise;

d. By falsifying the fetal death

certificate.

46. Petitioner did not establish that Dr. Kachinas failed

to document an adequate patient history. The evidence clearly

shows that a patient history was documented at the time of

B.S.’s admission to Doctors Hospital. Petitioner did not

establish by clear and convincing evidence that Dr. Kachinas

failed to document a physical examination of B.S. prior to the

insertion of the Laminaria. The Laminaria Insertion report

documents a limited physical examination. The evidence is not

clear and convincing that Dr. Kachinas falsified the death

certificate. Petitioner did establish by clear and convincing

evidence that Dr. Kachinas failed to document the time of the

fetal demise. Thus, Petitioner has established by clear and

convincing evidence that Dr. Kachinas violated Subsection

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

47. Petitioner alleges that Dr. Kachinas violated

Subsection 458.331(1)(t), Florida Statutes (2003), in one or

more of the following ways:

a. By failing to obtain an adequate patient

history;

b. By failing to perform a physical

examination prior to the insertion of the

Laminaria;

c. By failing to document the time of the

fetal demise.

48. Petitioner has failed to establish that Dr. Kachinas

failed to obtain an adequate patient history. Petitioner’s own

expert stated that his review of the records showed that a

history had been done. 3 Petitioner did not establish by clear

and convincing evidence that a physical examination was not done

prior to the insertion of the Laminaria. The Laminaria

Insertion report shows that at least B.S.’s blood pressure,

temperature, and pulse were taken. Petitioner has established

that Dr. Kachinas failed to document the time of the fetal

demise; however, that failure is a violation of Subsection

458.331(1)(m), Florida Statutes (2003), rather than Subsection

458.331(1)(t), Florida Statutes (2003). Thus, Petitioner has

failed to establish that Dr. Kachinas violated Subsection

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

DOAH CASE NO. 09-4680PL

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

provides that the following conduct may be grounds for

disciplinary action:

Notwithstanding s. 456.072(2), but as

specified in 456.50(2):

1. Committing medical malpractice as

defined in 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.

2. Committing gross medical malpractice.

3. Committing repeated medical malpractice

as defined in 456.50. A person found by the

board to have committed repeated medical

malpractice based on s. 456.50 may not be

licensed or continue to be licensed by this

state to provide health care services as a

medical doctor in this state.

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.

50. “Medical malpractice” is defined in Subsection

456.50(1)(g), Florida Statutes (2005), as the “failure to

practice medicine in accordance with the level of care, skill,

and treatment recognized in general law related to health care

defines "level of care, skill, and treatment recognized in

general law related to health care licensure" as ”the standard

of care specified in s. 766.102.” Subsection 766.102(1),

Florida Statutes (2005), defines “the prevailing professional

standard of care for a given health care provider” as “that

level of care, skill, and treatment which, in light of all

relevant surrounding circumstances, is recognized as acceptable

and appropriate by reasonably prudent similar health care

providers.”

51. Petitioner alleges in Count 1 of the Administrative

Complaint that Dr. Kachinas violated Subsection 458.331(1)(t),

Florida Statutes (2005), in one or more of the following ways:

a. By failing to identify the position of

twin A in relationship to the mother, even

though the ultrasound from Florida Perinatal

Associates states that twin B is located

toward the maternal right;

b. By failing to clearly differentiate the

sex of the fetuses by ultrasound even though

twin A (the affected one) was a male and

twin B was a female;

c. By failing to identify the affected twin

by ultrasound even though the affected twin

had multiple anomalies including a cystic

hygroma, shortened long bones, and possible

A-F canal, whereas twin B’s ultrasound was

normal;

d. By failing to perform a thorough

ultrasound examination in order to identify

the correct fetus;

e. By failing to document his attempts to

identify the sex or multiple anomalies

previously reported for twin A;

f. By performing a feticide in the non-

affected fetus.

52. Petitioner has proved the allegations in above-

paragraph 51 by clear and convincing evidence. Dr. Kachinas did

not identify the male fetus with the anomalies, did not

correctly identify the position of the twins, failed to perform

a thorough ultrasound examination, failed to document his

attempts to identify the correct fetus, and performed a feticide

on the normal twin. Thus, Petitioner has established that

Dr. Kachinas violated Subsection 458.331(1)(t), Florida Statutes

(2005), by committing gross medical malpractice.

53. In Count 2 of the Administrative Complaint, Petitioner

alleges that Dr. Kachinas violated Subsection 458.331(1)(m),

Florida Statutes (2005), by failing to document his attempts to

identify the sex or multiple anomalies previously reported for

Twin A. Petitioner has established this allegation by clear and

convincing evidence. Dr. Kachinas violated Subsection

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

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED as to DOAH Case No. 09-4678PL that a

final order be entered finding that Dr. Kachinas violated

Subsection 458.331(1)(t), Florida Statutes (2002), by failing to

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

which is recognized by a reasonably prudent physician as being

acceptable under similar conditions and circumstances; finding

that Dr. Kachinas did not violate Subsection 458.331(1)(m),

Florida Statutes (2002); imposing an administrative fine of

$2,500; and placing Dr. Kachinas on probation for one year.

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED as to DOAH Case No. 09-4679PL that a

final order be entered finding that Dr. Kachinas did not violate

Subsections 456.072(1)(l) and 458.331(1)(t), Florida Statutes

(2003); finding that Dr. Kachinas violated Subsection

458.331(1)(m), Florida Statutes (2003); imposing an

administrative fine of $1,000; and placing Dr. Kachinas on

probation for one year.

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED as to DOAH Case No. 09-4680PL that a

final order be entered finding that Dr. Kachinas violated

Subsection 458.331(1)(t), Florida Statutes (2005), by committing

gross medical malpractice; finding that Dr. Kachinas violated

Subsection 458.331(1)(m), Florida Statutes (2005); imposing an

administrative fine of $2,000 and placing him on probation for

one year for the violation of Subsection 458.331(1)(m), Florida

Statutes (2005); and revoking his license for the violation of

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

DONE AND ENTERED this 26th day of January, 2010, 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]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of January, 2010.

ENDNOTES

1/ The original documents were produced at the final hearing and

were inspected by the Administrative Law Judge. Copies of the

original documents were submitted in evidence. The difference

in the color of the paper was evident in the original, but,

obviously, is not evident in a photocopy.

2/ The nuchal fold is the measurement of the back of the neck of

the fetus of the skin to the inside part of the head.

3/ The Administrative Complaint did not allege that no history

was taken prior to the insertion of the Laminaria. The

Administrative Complaint alleged only that no history was taken.

COPIES FURNISHED :

Diane K. Kiesling, Esquire

Grace Kim, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399

Matthew J. Kachinas, M.D.

1590 Harbor Cay Lane

Longboat Key, Florida 34228

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.