10-010047PL Department Of Health, Board Of Medicine vs. Mark N. Scheinberg Status: Closed Recommended Order on Monday, June 20, 2011.

Summary: Respondent neither committed medical malpractice in delivering a baby nor failed to maintain medical records justifying the course of the mother's treatment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE , )

)

Petitioner, )

) Case No. 10 - 10047 PL

vs. )

)

MARK N. SCHEINBERG , M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

March 22, 2011, at sites in Tallahassee and Lauderdale Lakes ,

Florida .

APPEARANCES

For Petitioner: Shirley L. Bates , Esquire

Jenifer L. Friedberg, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Steven L. Lubell , Esquire

Samantha A. Flax , Esquire

Lubell & Rosen, LLC

Museum Plaza, Suite 900

200 South Andrews Avenue

Fort Lauderdale , Florida 3 3301

STATEMENT OF THE ISSU ES

The issue s in this case are whether Respondent , a physician

specializing in obstetrics and gynecology, committed medical

malpractic e in delivering a baby and/or failed to maintain

medical records justifying the course of the mother's treatment;

if so, whether Petitioner should impose discipline on

Respondent's medical license within the applicable penalty

guidelines or take some other action.

PRELIMINARY STATEMENT

On September 24, 2011 , Petitioner Department of Health

issued a two - count Third Amended Administrative Complaint

("Complaint") against Respondent Mark N. Scheinberg , M.D . The

Department alleged that Dr. S cheinberg had co mmitted medical

malpractice in connection with the delivery of a baby, and that

he had failed to maintain medical records justifying the course

of the mother's treatment. Dr. Scheinberg denied the charges

and timely requested a formal hearing . On Novembe r 2 , 201 1 ,

under a Motion to Re - Open Case, the Department referred the

matter to the Division of Administrative Hearings, where an

Administrative Law Judge was assigned to preside in the matter.

The final hearing took place on March 22, 2011 . B oth

partie s were represented by counsel . The Department's lone

witness was John Busowski, M.D., who testified as an expert in

obstetrics and gynecology. The Department's Exhibits 1 through

7 and 10 were admitted into evidence without objection.

Official recogniti on was taken of the Department's Exhibits 8

and 9.

Dr. Scheinberg offered no exhibits and called two

witnesses: Adam Os trzenski, M.D., and Sandra Ventura, R.N.,

each of whom gave expert opinion testimony.

The final hearing transcript , comprising two vo lumes, was

filed on April 21, 2011 . An unopposed motion requesting that

the deadline for filing proposed recommended orders be enlarged

to May 1 3, 201 1 , was granted. Each party timely filed a

Proposed Recommended Order , and these have been carefully

cons idered .

FINDINGS OF FACT

1 . At all times relevant to this case, Respondent Mark N.

Scheinberg , M.D. , was licensed to practice medicine in the state

of Florida. H e is board - certified in obstetrics and gynecology .

2 . Petitioner Department of Hea lth (the "Department") has

regulatory jurisdiction over licensed physicians such as

Dr. Scheinberg . In particular, the Department is authorized to

file and prosecute an administrative complaint against a

physician, as it has done in this instance, wh en a panel of the

Board of Medicine has found that probable cause exists to

suspect that the physician has committed a disciplinable

offense.

3. Here , the Department alleges that Dr. Scheinberg

committed two such offenses ÏÏ namely, medical malpractice and

failure to keep records justifying the course of treatment ÏÏ in

connection with the vacuum - assisted vaginal delivery of an

infant born to Patient L.G. on February 2, 20 05, at West Boca

Medical Center . The crux of this case (though not the sole

issue) is w hether, as the Department contends , the standard of

care required Dr. Scheinberg to perform a Caesarean section ("C -

section") on L.G. due to the passage of time, instead of

allowing her to continue to labor for approximately 13 hours

and, ultimately, deliv er vaginally.

4 . The events giving rise to this dispute began on

February 1, 2005, at around 11:00 a.m., when L.G., whose

pregnancy was at term, checked into the h ospital after having

experienced ruptured membranes. At 12:30 p.m. that day, L.G.

signed a form bearing the title "Authorization for Medical

and/or Surgical Treatment , " which manifested her consent to a

vaginal delivery or C - section together with, among other things,

"such additional operations or procedures as [her physicians

might] deem nec essary." Immediately above L.G.'s signature on

the form is an affirmation : "The above procedures, with their

attendant risks, benefits and possible complications and

alternatives, have been explained to me . . . ."

5. The evidence is not clear as to whe n , exactly,

Dr. Scheinberg first saw L.G., but that fact is unimportant.

The medical records reflect that at 8:30 p.m. on February 1,

2005, Dr. Scheinberg gave a telephone order to initiate an IV

push of the antibiotic Ampicillin ; therefore, he had taken

charge of L.G.'s care by that time .

6. The nurses' notes indicate that at 10:00 p.m., L.G.'s

cervix had dilated to "rim" or approximately nine centimeters ÏÏ

meaning that the dilation was complete , or nearly so . At this

time, and throughout the dur ation of L.G.'s labor, an external

fetal heart monitor was in place to detect and record the baby's

heartbeats and the mother's uterine contractions.

7. An intrauterine pressure catheter ("IUPC") ÏÏ a device

that precisely measures the force of uterine co ntractions ÏÏ was

not inserted into L.G.'s uterus at any time during this event.

The Department argues (although it did not allege in the

Complaint) that, at some point during L.G.'s labor, the standard

of care required Dr. Scheinberg either to place an IUP C or

perform a C - section. Pet. Prop. Rec. Order at 10, ¶36. The

Department's expert witness, Dr. John Busowski, testified

unequivocally and unconditionally, however, that the standard of

care does not require the use of an IUPC. T. 36. The

undersigned credits this evidence and finds that

Dr. Scheinberg's nonuse of an IUPC did not breach the standard

of care.

8. Dr. Scheinberg conducted a physical at around 2:00 a.m.

on February 2 , 2005, which included taking L.G.'s complete

history and per forming a vaginal examination. L.G.'s cervix

remained dilated to approximately nine centimeters , and her

labor had not substantially progressed for about four hours .

Dr. Scheinberg noted in L.G.'s chart that the baby was in the

posterior position at 2:00 a.m.

9. The Department argues, based on Dr. Busowski's

testimony, that as of 2:00 a.m., the

standard of care required [Dr. Scheinberg

to] choose one of the following options: (1)

watch the patient for a few more hours to

allow for progress; (2) place an IUPC to

determine the adequacy of Patient L.G.'s

contractions; (3) start Pitocin without the

placement of an IUPC; or (4) perform a C -

section.

Pet. Prop. Rec. Order at 9 - 10, ¶ 32 . The Department contends

that Dr. Scheinberg breached the standard of care by choosing

"simply to watch the patient for approximately 10 more hours" ÏÏ

which was tantamount to "choosing to do nothing." Id. at 10,

¶¶ 33 - 34.

10. In fact, Dr. Scheinberg chose to watch the patient ,

which was, according to Dr. Busowski, within the s tandard of

care. Obviously, at 2:00 in the morning on February 2, 2005,

Dr. Scheinberg did not choose to wait for 10 more hours, because

at that point he (unlike the parties to this litigation) did not

know what was about to happen.

11. The nurses' notes reflect that L.G. was under close

observation throughout the early morning hours, and that

Dr. Scheinberg was following the situation. At 4:30 a.m., L.G.

was set up to push and at 4:45 a.m. was pushing well. At

6:15 a.m., the notes indicate that Dr. Scheinberg was aware of

the mother's attempts to push. At 6:45 a.m., he reviewed the

strips from the fetal heart monitor. At 7:45 a.m., he was

present and aware of L.G.'s status.

12. From 7:00 a.m. until 8:00 a.m., no contractions were

identifiable on the external monitor. At 8:00 a.m., however,

L.G. was comfortable and pushing well. She stopped pushing at

8:30 a.m. , but remained comfortable. Dr. Scheinberg then

ordered the administration of Pitocin, a medicine which is used

to strengthen contrac tions and hasten delivery . Although the

Department faults Dr. Scheinberg for giv ing L.G. Pitocin at this

relatively late stage of her labor, Dr. Busowski (the

Department's expert witness) admitted being unable to say " that

Dr. Scheinberg should have start ed Pitocin earlier . . . ."

T. 72. The Department therefore has no clear evidential basis

for second - guessing Dr. Scheinberg's professional judgment in

this particular, and neither does the undersigned.

13. At 9:10 a.m., L.G. resumed pushing. The baby's fetal

heart tones (heartbeats) were stable. L.G. continued pushing,

with her family present, until around 11:00 a.m., at which time

Dr. Scheinberg discussed the situation with the patient and her

family. Dr. Scheinberg explained to L.G. or her hu sband the

risks of, and alternatives to, performing a vacuu m - assisted

vaginal delivery. Either L.G. or her husband gave verbal

consent to the use of a vacuum device to assist in the delivery.

14. Between 11:00 a.m. and 11:10 a.m., the fetal heart

monitor detected some variable decelerations, meaning a decrease

in he art rate that could be a sign of fetal distress. Dr.

Scheinberg delivered the baby at 11:23 a.m., using a vacuum

device to help pull the infant out of the birth canal.

15. In his post - opera tive notes, Dr. Scheinberg wrote that

his "pre - operative diagnosis" was " station Ï prolonged second

stage 2½ hrs." As a "post - operative diagnosis," Dr. Scheinberg

recorded, "same tight cord." He reported the following

"findings": "tight cord cut on perineum[;] mec[onium] aspirated

on perineum."

CONCLUSIONS OF LAW

16 . The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuan t to

s ections 120.569, and 120.57(1), Florida Statutes (2010) .

1 7 . A pr oceeding, such as this one, to suspend, revoke, or

impose other discipline upon a license is penal in nature.

State ex rel. Vining v. Florida Real Estate Comm ' n , 281 So. 2d

487, 491 (Fla. 1973). Accordingly, to impose discipline, the

Department must prov e the charges against Scheinberg by clear

and convincing evidence. Dep' t of Banking & Fin., Div. of Sec.

& Investor Prot . v. Osborne Stern & Co. , 670 So. 2d 932, 933 - 34

(Fla. 1996)(citing Ferris v. Turlington , 510 So. 2d 292, 294 - 95

(Fla. 1987)); Nair v. Dep ' t of Bus . & Pro f ' l Regulation, Bd. of

Medicine , 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

18 . Regarding the standard of proof, in Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court

developed a "workable definition of clear and conv incing

evidence" and found that of necessity such a definition would

need to contain "both qualitative and quantitative standards."

The court held that:

clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to wh ich the witnesses testify

must be distinctly remembered; the testimony

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 f act a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Id. The Florida Supreme Court later adopted the Slomowitz

court's description of clear and convincing evidence. See In re

Davey , 645 So. 2d 398, 404 (Fla. 1994). The First District

Court of Appeal also has followed the Slomowitz test, adding the

interpretive comment that "[a]lthough this standard of proof may

be met where the evidence is in conflict, . . . it seems to

preclude evidence that i s ambiguous." Westinghouse Elec. Corp.

v. Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991),

rev . denied , 599 So. 2d 1279 (Fla. 1992)(citation omitted).

19 . The Department charged Dr. Sche i nberg u nder s ection

458.331 , Florida Statutes (2004), which provide d in pertinent

part as follows :

(1) The following acts shall constitute

grounds for . . . disciplinary action [ : ]

* * *

(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 c ourse 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.

* * *

( t ) . . . t he 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. [Section

766.102(1) state d that the "prevailing

professional standard of care for a given

health care provider shall be that level of

care, skill, and treatment which, in light

of all relevant surrounding circ umstances,

is recognized as acceptable and appropriate

by reasonably prudent similar health care

providers."] . . . A recommended order by

an administrative law judge or a final order

of the board finding a violation under this

paragraph shall specify wh ether 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.

20. Florida Administrative Code Rule 64B8 - 9.003 (2002)

provided in relevant part as follows:

(2) A licensed physician shall maintain

patient medical records in English, in a

legible manner and with sufficient detail to

clearly demonstrate why the course of

treatment was undertaken or why an

apparently indicated course of treatment was

not undertaken .

( 3) The medical record shall contain

sufficient information to identify the

patient, support the diagnosis, justify the

treatment and document the course and

results of treatment accurately, by

including, at a minimum, patient histories;

examination results; test results; records

of drugs prescribed, dispensed, or

administered; re ports of consultations and

hospitalizations; and copies of records or

reports or other documentation obtained from

other health care practitioners at the

request of the physician and relied upon by

the physician in determ ining the appropriate

treatment of the patient.

21 . Disciplinary statutes and rules "must be construed

strictly, in favor of the one against whom the penalty would be

imposed." Munch v. Dep't of Prof'l Reg., Div. of Real Estate ,

592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); see Camejo v. De p't of

Bus. & Prof'l Reg. , 812 So. 2d 583, 583 - 84 (Fla. 3d DCA 2002);

McClung v. Crim. Just. Stds. & Training Comm'n , 458 So. 2d 887,

888 (Fla. 5th DCA 1984)("[W]here a statute provides for

revocation of a license the grounds must be strictly construed

bec ause the statute is penal in nature. No conduct is to be

regarded as included within a penal statute that is not

reasonably proscribed by it; if there are any ambiguities

included, they must be construed in favor of the licensee."); see

also, e.g. , Griffi s v. Fish & Wildlife Conserv. Comm'n , 57 So. 3d

929 , 931 (Fla. 1st DCA 2011)(statues imposing a penalty must

never be extended by construction).

22. Section 456.073, Florida Statutes (2004), provided in

pertinent part as follows:

( 5) A formal hearing b efore an

administrative law judge from the Division

of Administrative Hearings shall be held

pursuant to chapter 120 if there are any

disputed issues of material fact. The

determination of whether or not a licensee

has violated the laws and rules regulati ng

the profession, including a determination of

the reasonable standard of care, is a

conclusion of law to be determined by the

board, or department when there is no board,

and is not a finding of fact to be

determined by an administrative law judge.

The administrative law judge shall issue a

recommended order pursuant to chapter 120.

Notwithstanding s. 120.569 (2), the

departm ent shall notify the division within

45 days after receipt of a petition or

request for a formal hearing.

23. In support of the charge that Dr. Scheinberg committed

medical malpractice , t he Department alleged that, in light of

all the relevant circumstan ces surrounding the delivery of

L.G.'s baby, Dr. Scheinberg breached the stan dard s of care for

an obstetrician in the following specific ways:

1. Failing to perform a caesarean

section . . . to facilitate delivery;

and/or

2. Performing a vacuum - assiste d

delivery . . . after Patient L.G. had

been in protracted/arrested labor for ten

hours; and/or

3. Ordering the administration of

Pitocin . . . after [Patient L.G.] had been

in protracted/arrested labor for

approximately 8 hours; and/or

4. Failing to determine the pressure of the

vacuum used in the vacuum assisted delivery;

and/or

5. Failing to determine the adequacy or

intensity of Patient L.G.'s contractions;

and/or

6. Failing to determine the station of the

baby when the vacuum was applied; and/o r

7. Failing to determine the position of the

baby prior to the vacuum being applied.

Pet. Prop. Rec. Order at 18 - 19, ¶ 75. The foregoing enumerated

alleged acts and omissions correspond, respectively, to the

alleged negligen ce described in subparagraph s a), b), d), e),

h), i), and j) of paragraph 27 of the Complaint.

24. In its Proposed Recommended Order, the Department

summarized what the evidence shows, in its view, regarding Dr.

Scheinberg's alleged failures to practice in accordance with the

appli cable standard s of care:

[The Department] has established by clear

and convincing evidence that [Dr. Scheinberg

committed medical malpractice] by (1)

failing to perform a Cesarean section at

either 2:00 a.m. or anytime prior to having

Patient L.G. begin to push [at 8:30 a.m. 1 ];

and/or (2) failing to start Pitocin at

2:00 a.m., without the placement of an IUPC

and ordering administration of Pitocin only

after Patient L.G. had been in arrested

labor for more than eight hours; and/or (3)

failing to place an IUPC to determine the

adequacy or intensity of Patient L.G.'s

contractions; and/or (4) failing to

determine the station of the baby when the

vacuum was applied; and/or (5) failing to

determine the position of the baby prior to

the vacuum being applied.

Id . at 19, ¶ 76 (heavy - faced type added).

25. The omissions described in boldface above were not

alleged in the Complaint. As a matter of law, therefore,

Dr. Scheinberg cannot be disciplined for such omissions. 2

Further, because the Department fail ed to mention certain

alleged omissions in its summary of what it believes the

evidence shows concerning Dr. Scheinberg's treatment of L.G.,

the undersigned deems abandoned the allegations set forth in the

Complaint at paragraph 27, subparagraphs b), c), f ), and g).

This leaves for determination the allegations that Dr.

Scheinberg committed medical malpractice by:

Failing to perform a C - section.

Failing to determine the adequacy or

intensity of L.G.'s contractions .

Using Pitocin to induce labor after

Pat ient L.G. had been in arrested labor

for more than eight hours.

Failing to determine the station and

position of the baby in connection with

the use of the vacuum to assist

delivery.

26. The surgical procedure known as a C - section is an

alternative to t he vaginal delivery of a baby. For the purposes

of this case, at least, these two means of giving birth are

mutually exclusive; that is, a baby removed from the mother's

womb via a C - section cannot also be born through the mother's

vagina. Thus, although the Department has pleaded alternative

theories, the vital content of its case against Dr. Scheinberg

hinges on the contention that at some clearly identifiable point

between 2:00 a.m and 8:30 a.m. on February 2, 2005, the

applicable standard of care requ ired that Dr. Scheinberg perform

a C - section on L.G. due to the passage of time, instead of

all owing her to deliver vaginally. 3

27. To be clear, this is not a case where either the

mother or the baby appeared to be in imminent danger. The

nurses' notes s uggest that L.G. was not unduly uncomfortable,

despite the long labor, and that the baby was doing fine until

shortly before the delivery, when variable decelerations were

observed. Nor has the Department alleged that Dr. Scheinberg's

alleged negligence p roximately caused any injuries. With these

points in mind, the evidential flaw in the Department's case is

easy to spot: the evidence fails clearly and convincingly to

establish a precise moment when ÏÏ simply because of the length of

time L.G. had been in labor, and regardless of other

considerations such as the condition of the mother or baby ÏÏ Dr.

Scheinberg had no choice as a reasonably prudent physician but

to perform a C - section.

28. To e laborate , the Department's theory of the case

rests on the b elief that the applicable standard of care

prescribes an objective window of opportunity during which a

vaginal delivery must occur ÏÏ and at the close of which, if the

baby has not been born, the obstetrician must perform a C -

section, no matter what. In ot her words, the Department

maintains that once the clock starts to run, there is an

ascertainable vaginal - delivery deadline, which, if not met,

compels surgical intervention. It was, therefore, the

Department's burden to prove (a) the triggering event that opens

the vaginal - delivery window, e.g., complete cervical dilation;

and (b) the precise interval of time during which the window

remains open, e.g., 6 hours.

29. The Department failed to prove these elements. Based

on the evidence in the record, the undersigned is unable to

conceptualize a standard of care , prevalent in February 2005,

prescribing a fixed vaginal - delivery deadline. On the evidence

presented, therefore, the undersigned cannot find Dr. Scheinberg

negligent for failing to perform a C - se ction.

30. Regarding Dr. Scheinberg's alleged failure to

determine the adequacy or intensity of L.G.'s contractions, the

Department's theory is that an IUPC should have been placed.

The evidence, however, establishes that the use of an IUPC was

not requ ired under the standard of care , even as of March 2011;

the undersigned therefore has no foundation upon which to base a

finding that the nonuse of an IUPC violated the standard of care

applicable in February 2005.

31. The evidence fails to establish cle arly and

convincingly that Dr. Scheinberg waited too long to administer

Pitocin to hasten delivery , as the Department alleges. Indeed,

the Department's expert witness was unable to give the opinion

that Dr. Scheinberg should have used Pitocin any earlier than he

did. There is, accordingly, an insufficient basis in the record

to support a finding that Dr. Scheinberg violated the applicable

standard of care in this regard.

32. As set forth above, the evidence shows that

Dr. Scheinberg did, in fact , determine the station and position

of L.G.'s baby before using the vacuum device to assist

delivery. Therefore, the Department has not established, as was

its burden, that Dr. Scheinberg failed to do these things, as

alleged.

33. In support of the char ge that Dr. Scheinberg did not

keep adequate medical records, t he Department alleged that he

failed to :

1. Document the reasons for performing a

vacuum - assisted delivery on Patient L.G.;

2. Keep medical records which justified

ordering Pitocin for Patien t L.G. after she

had been in protracted/arrested labor for

several hours;

3. Document consent for a vacuum - assisted

delivery from Patient L.G. or her husband

prior to performing a vacuum - assisted

delivery;

4. Document the pressure of the vacuum used

in t he vacuum - assisted delivery;

5. Document the discussion with Patient

L.G. or her husband regarding the

alternatives to performing a vacuum - assisted

delivery;

6. Document the time at which Respondent

performed a vacuum - assisted delivery for

Patient L.G.

7. Document the adequacy or intensity of

Patient L.G.'s contractions;

8. Document the station of the baby when

the vacuum was applied; and

9. Document the position of the baby prior

to the vacuum being applied.

Pet. Prop. Rec. Order at 20 - 21, ¶ 81 . T he foregoing enumerated

omissions correspond, respectively, to the alleged record -

keeping failures described in subparagraphs a), b), c), d), e),

g), h), i), and j) of paragraph 31 of the Complaint.

34. In its Proposed Recommended Order, the Department

s ummarized what the evidence shows, in its view, regarding

Dr. Scheinberg's alleged failures to keep adequate medical

records :

The Department established by clear and

convincing evidence that [Dr. Scheinberg ]

violated Section 458.331(1)(m), Florida

Stat utes, by (1) failing to document the

reasons for administering Pitocin to L.G.;

and/or (2) failing to document reasons for

performing a vacuum - assisted delivery on

Patient L.G. ; and/or (3) failing to document

discussion with Patient L.G. regarding a

vacuum - assisted delivery ; and/or (4) failing

to document consent for a vacuum - assisted

delivery by Patient L.G. or her husband ;

and/or (5) failing to document the station

of the baby prior to the time he applied the

vacuum .

Id. at 21 , ¶ 82 .

35. B ecause the D epartment failed to mention certain

alleged omissions in its summary of what it believes the

evidence shows concerning Dr. Scheinberg's record - keeping, the

undersigned deems abandoned the allegations set forth in the

Complaint at paragraph 31 , subparagraph s d ), f), g) , h), and j) .

This leaves for determination the allegations that

Dr. Scheinberg failed to keep adequate medical records by :

Failing , in connection with the vacuum -

assisted delivery, to document : (i)

the reasons for performing the

p rocedure ; (ii) any discussion with the

patient or her husband regarding

alternative procedures; (iii) informed

consent to the procedure; and (iv) the

station of the baby when the vacuum was

applied .

Failing keep records justifying the use

of Pitocin.

36. The medical records in evidence clearly show that L.G.

experienced a prolonged second - stage labor and that, shortly

after 11:00 a.m. on the morning of delivery, the baby's heart

rate decreased episodically in a manner suggesting possible

fetal distress. The Department's expert witness agreed that

these facts justified the use of a vacuum to assist delivery.

37. The medical records indicate that, at around

11:00 a.m., Dr. Scheinberg discussed the existing situation with

L.G. and her husband. The pa rties stipulated that

Dr. Scheinberg explained to L.G. or her husband the risks of,

and alternatives to, performing a vacuum - assisted delivery. The

parties further stipulated that e ither L.G. or her husband gave

verbal consent to the use of a v acuum device to assist in the

delivery. The undersigned infers that the discussion mentioned

in the medical records is the one in which Dr. Scheinberg

obtained the patient's consent to the use of a vacuum after

explaining the risks and alternatives.

38. The evidence, therefore, is insufficient to prove,

clearly and convincingly, that Dr. Scheinberg failed to keep

records justifying the use of a vacuum to assist delivery.

Further, the Department seems to be trying to extend section

458.331(1)(m) to reach conduct that it clearly does not

regulate, namely the respective obligations ÏÏ which are distinct

from the duty to keep records justifying the course of

treatment ÏÏ to explain the procedure to be performed and to

obtain the informed consent of the patient. Logic dictates that

while a physician's failure to explain the procedure to be

performed or to obtain the patient's informed consent might

warrant discipline, such a default would not prevent him from

keeping impeccable medical records that justify the cou rse of

the patient's treatment in compliance with section

458.331(1)(m) .

39. There are, to be sure, standards of practice governing

explanations and consent. Florida Administrative Code Rule

64B8 - 0.007 (1991), in effect at the time of the incident in

que stion, provided in pertinent part as follows:

(1) The ultimate responsibility for

diagnosing medical and surgical problems is

that of the licensed doctor of medicine or

osteopathy who is to perform the surgery .

In addition, it is the responsibility of

op erating surgeon or an equivalently trained

doctor of medicine or osteopathy or a

physician practicing within a Board approved

postgraduate training program to explain the

procedure to and obtain the informed consent

of the patient. It is not necessary,

ho wever, that the operating surgeon obtain

or witness the signature of the patient on

the written form evidencing informed

consent.

The Department did not charge Dr. Scheinberg with violating this

rule, however, and, in any event, the evidence establishes t hat

he fully complied with it. Consequently, there is no basis for

finding that Dr. Scheinberg committed record - keeping violations

in connection with explaining procedures to the patient or

obtaining the patient's informed consent.

40. The evidence is i nsufficient to prove, clearly and

convincingly, that the medical records fail to justify the use

of Pitocin at 8:30 a.m. to make L.G.'s contractions stronger and

accelerate delivery . The records show that from around

7:00 a.m. to 8:00 a.m., L.G. was having weak contractions , at

best . She had been pushing for hours, to no avail. The Pitocin

was added, justifiably, to strengthen L.G.'s contractions with

the hope that she soon would give birth .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Medicine enter a final

order finding Dr. Scheinberg not guilty of the charges set forth

in the Complaint.

DONE AND ENTERED this 20th day of June , 20 1 1 , in

Tallahassee, Leon County, Florida.

S

__ _________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www. doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of June , 20 1 1 .

ENDNOTES

1 / The Department maintains that "L.G. began to push" at 8:30 in

the morning. See Pet. Prop. Rec. Order at 11, ¶ 42. As found

above, however, L.G. actually began to push as early as

4:45 a.m.

2 / Due pr ocess prohibits an agency from taking disciplinary

action against a licensee based on matters not specifically

alleged in the charging instrument. See § 120.60(5), Fla. Stat.

(" No revocation, suspension, annulment, or withdrawal of any

license is lawful u nless, prior to the entry of a final order,

the agency has served, by personal service or certified mail, an

administrative complaint which affords reasonable notice to the

licensee of facts or conduct which warrant the intended action

. . . ."); see also Trevisani v. Dep't of Health , 908 So. 2d

1108, 1109 (Fla. 1st DCA 2005)("A physician may not be

disciplined for an offense not charged in the complaint.");

Marcelin v. Dep't of Bus. & Prof'l Reg. , 753 So. 2d 745, 746 - 747

(Fla. 3d DCA 2000); Delk v. Dep't of Prof'l Reg. , 595 So. 2d

966, 967 (Fla. 5th DCA 1992)("[T]he conduct proved must legally

fall within the statute or rule claimed [in the administrative

complaint] to have been violated.").

3 / The Department's failure to prove that Dr. Scheinberg was

r equired under the applicable standard of care to perform a C -

section would mean that the vaginal delivery of L.G.'s baby was

not, without more, a negligent act. In that event,

Dr. Sheinberg could still be found to have committed medical

malpract ice by, e.g., administering Pitocin to hasten delivery.

Such a failure of proof would, however, substantially diminish

the strength of the Department's case, which is founded on the

notion that Dr. Scheinberg's decision not to perform a C - section

ultimate ly forced him to administer Pitocin and deliver L.G.'s

baby vaginally, using a vacuum device. See Pet. Prop. Rec.

Order at 19, ¶ 77.

COPIES FURNISHED :

Shirley L. Bates, Esquire

Jenifer L. Friedberg, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallah assee, Florida 32399 - 3265

Steven L. Lubell , Esquire

Samantha A. Flax , Esquire

Lubell & Rosen, LLC

Museum Plaza, Suite 900

200 South Andrews Avenue

Fort Lauderdale, Florida 33301

Larry McPherson, Jr., Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

E. Renee Alsobrook, Acting General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

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.