11-000922PL Department Of Health, Board Of Medicine vs. John M. Lee, M.D. Status: Closed Recommended Order on Friday, September 23, 2011.

Summary: Petitioner failed to prove by clear and convincing evidence that Respondent failed to meet the appropriate standard-of-care. Recommend dismissal.

Case No. 11-0922PL

RECOMMENDED ORDER

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, ) ) ) ) ) ) ) ) ) ) )

BOARD OF MEDICINE, Petitioner, vs. JOHN M. LEE, M.D., Respondent.

On June 2, 2011, a duly-noticed hearing was held in

Tallahassee, Florida, before Lisa Shearer Nelson, an

Administrative Law Judge assigned by the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Elana J. Jones, Esquire

Ian Brown, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

For Respondent: Brian A. Newman, Esquire

Pennington, Moore, Wilkinson

Bell and Dunbar, P.A.

215 South Monroe Street, Second Floor

Tallahassee, Florida 32302-2095

STATEMENT OF THE ISSUE

The issue to be presented is whether Respondent violated

section 458.331(1)(t), Florida Statutes (2005), and if so, what

penalty should be imposed?

PRELIMINARY STATEMENT

On December 6, 2010, Petitioner, Department of Health

(Petitioner or the Department), filed a one-count Administrative

Complaint against Respondent, charging him with violating section

458.331(1)(t), with respect to the care and treatment of patient

R.R. Respondent filed a Request for Formal Hearing which

disputed the allegations in the Administrative Complaint and

requested a hearing pursuant to section 120.57(1), Florida

Statutes. On February 22, 2011, the case was referred to the

Division of Administrative Hearings for assignment of an

administrative law judge.

On March 8, 2011, a Notice of Hearing was issued scheduling

the case for hearing on April 26-27, 2011. At the request of the

parties, the case was rescheduled for June 7, 2011, and proceeded

as scheduled.

At hearing, Petitioner presented the testimony of R.R.,

A.R., Respondent John Lee, M.D., and Robert Holloway, M.D.

Petitioner's Exhibits numbered 1, 9, 10, 11, 12, and 13 were

admitted into evidence. Respondent presented the testimony of

John D. Davis, M.D., and Brandi Harper, and Respondent's Exhibits

numbered 1-2 were admitted.

The Transcript of the proceeding was filed with the Division

on June 28, 2011. At the request of the parties, the deadline

for the filing of proposed recommended orders was extended to

August 12, 2011. Both parties' Proposed Recommended Orders were

submitted timely and both have been carefully considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. The Department is the state agency charged with

regulating the practice of medicine pursuant to section 20.43 and

chapters 456 and 458, Florida Statutes.

2. Respondent, John Lee, M.D., is a licensed physician in

the State of Florida, having been issued license number ME 50043.

Dr. Lee specializes in obstetrics and gynecology, but is not

board certified at this time. He has a solo practice.

3. Dr. Lee has had one prior final order imposing

discipline against him. On November 7, 1996, the Board of

Medicine entered a Final Order approving an amended Consent

Agreement entered between the Agency for Health Care

Administration (the Department's predecessor with respect to

regulation of health care professionals) and Dr. Lee. The Final

Order imposed a letter of concern, a fine of $2,000, and 20 hours

of continuing medical education.

4. On or about November 2, 2005, patient R.R. first saw

Respondent with a complaint of chronic pelvic pain and an

inability to function. Based upon his examination of R.R.,

Respondent recommended that R.R. undergo a bilateral salpingo-

oophorectomy (removal of both ovaries and fallopian tubes).

5. R.R. decided to have the recommended surgery and on

December 13, 2005, Respondent performed a bilateral salpingo-

oophorectomy, as well as an appendectomy, lysis of adhesions and

partial omentectomy.

6. There are three layers to the bowel: the serosa is the

thin outer protective layer; under the serosa is the muscularis;

a third layer below the muscularis called the mucosa. Dr. Lee's

surgical notes indicate that there was some serosal denuding of

the sigmoid colon, but with no luminal extravasion (no leakage

from the bowel). Dr. Lee described the serosal denuding as an

irritation of the serosa from removal of adhesions, and not a

complication of the surgery. In any event, there are no

allegations in the Administrative Complaint claiming that either

Dr. Lee's decision to perform the surgery or the performance of

the surgery itself deviated from the appropriate standard-of-

care, and no findings to that effect are found.

7. R.R. was discharged from the hospital on December 15,

2005. At that time, she was ambulatory, tolerating liquids, had

passed flatus and had a small bowel movement. At that time she

had no documented fever and a normal white count.

8. The next day, Friday, December 16, 2005, R.R.'s husband

called Dr. Lee's office at approximately 3:00 p.m. According to

R.R., she spoke to Brandi Melvin, now known as Brandi Harper

(Ms. Harper), the medical assistant for Dr. Lee, and told her

that she was running a fever of 101.8 degrees, did not feel well

and wanted Dr. Lee to call her. She testified that at that time,

she did not feel well, was achy all over, had pain in her abdomen

and had chills. R.R. testified that Ms. Harper told her to

increase her Dilaudid in accordance with her prescription and to

continue rotating Tylenol and Motrin. She denies being told to

go to the emergency room if her fever did not go down, and denies

being instructed to pick up a prescription for an antibiotic.

9. Brandi Harper is a medical assistant in Dr. Lee's

office, and has been since 2004. She is a certified nurse's

assistant and has completed a year and a half toward her

registered nursing degree.

10. Part of Ms. Harper's duties include screening calls

that come in from patients post-surgery. In doing so, she

follows a set protocol that has been established in that office.

In accordance with Dr. Lee's preferences, she inquires not only

about the symptoms the patients report having, but also about

symptoms they may not be having. Consistent with that protocol,

she testified that, with respect to the call from R.R. and her

husband, she asked whether R.R. was having any drainage from the

incision; any abdominal pain; or was experiencing any other

symptoms. Ms. Harper testified that R.R. did not report having

any abdominal pain above expected soreness, and did not report

difficulty breathing or shortness of breath; drainage from the

incision; vomiting; bloating or distension of the abdomen.

Ms. Harper's testimony is credited.

11. After receiving the telephone call from R.R.,

Ms. Harper wrote a note to Dr. Lee which referenced R.R. and

stated, "[t]aking the cephalexin you gave her on discharge. Is

running 102 temp, just sore. She has been rotating Tylenol and

nothing has brought it down. Informed her to drink plenty of

fluids. Do you want to add anything?"

12. Neither Ms. Harper's notes nor her testimony reflect

that she told the patient to increase pain medication. Nor does

the note reflect that R.R. wanted to speak with Dr. Lee.

13. Because Dr. Lee was seeing patients, Ms. Harper placed

the note on his desk for his review. After reviewing the note,

Dr. Lee wrote "Levaquin 500mg, #10, 1 a day." Ms. Harper then

called the patient to tell her that a prescription was being

called in for her and confirmed the pharmacy the patient used.

At that time, consistent with the protocol established by

Dr. Lee, she told R.R. or her husband that if the fever did not

go down after two hours, to go to the emergency room at West

Florida Hospital. She did not tell her to call the office back

because, at the time of the return phone call, it was

approximately 3:30 p.m. on a Friday afternoon, and in two hours

the office would be closed.

14. Ms. Harper then called the prescription in to Burklow's

Pharmacy, as identified by the patient, and noted the

prescription in patient's medication log. She noted the time of

the call and the name of the pharmacist with whom she spoke.

15. Ms. Harper did not note in the medical record that she

advised the patient to go to the emergency room if her fever did

not go down, and did not specifically note the return call to the

patient. However, she plausibly explained that she could not

call in the prescription to Burklow's without speaking to the

patient, because there were two different pharmacies noted in her

file previously. She also credibly testified that she always

calls the patient back in conjunction with the call to the

pharmacy, and gives standard instructions to post-operative

patients regarding further action (in this case, going to the

West Florida Hospital emergency room) should their condition not

change. She does not necessarily document the return call

because she does it so many times daily. Dr. Lee also testified

that instructions to call back if the office is open or go to the

emergency room if symptoms do not improve in a few hours is part

of the standard protocol. Ms. Harper's and Dr. Lee's testimony

is credited.

16. R.R. did not go to the emergency room over the weekend

and there was no evidence that she ever called Dr. Lee's office

back after the 3:00 Friday afternoon call. She continued to not

feel well, however, and on Monday morning, December 19, 2005, at

approximately 5:00 a.m., she woke up in intense pain between her

shoulder blades. She went by ambulance to Santa Rosa Medical

Center (SRMC). R.R. went to SRMC as opposed to West Florida

Hospital because it was much closer to her home. Dr. Lee does

not have privileges at SRMC.

17. Although R.R. went to the emergency room early

December 19, 2005, there was no determination that first day that

she had a bowel perforation, and she was not admitted to the

hospital until approximately 8:30 that evening. At the time of

admission, she had a white blood count of 3.3, with a

differential count of 12 neutrophil bands. The history and

physical taken at the hospital and signed by Dr. Michael Barber,

M.D., states in part:

HISTORY OF PRESENT ILLNESS: [R.R.] is a 33-

year-old, . . . who underwent abdominal

surgery six days ago by Dr. John Lee at West

Florida Hospital. She had bilateral

salpingo-oophorectomy, partial omentectomy,

appendectomy, and extensive adhesiolysis.

. . . She states that although this surgery

was prolonged and reportedly difficulty

(sic), she tolerated the surgery well and by

the second postoperative day was ambulating

and voiding freely, tolerating a regular diet

with a bowel movement and positive flatus.

She stated her pain was well managed with 4

mg of Dilaudid q4h as needed. She was sent

home on Cephalexin 500 mg q6h, Phenergan 25

mg q6h and Dilaudid 4 mg q6h. She was also

on Hydrochlorothiazide for chronic

hypertension, Klonopin and Effexor for

anxiety and depression. She states that

after going home she had some anorexia that

was doing well until the morning of

admission. She was awakened from her sleep

at approximately 6 a.m. with remarkable

abdominal distention and severe diffuse

abdominal pain. She developed nausea as the

pain progressed but has had no vomiting. She

states that other than the bowel movement

immediately post surgery, she had not had any

bowel activity since discharge in six days.

After several hours and worsening of pain,

she presented to the emergency room at Santa

Rosa Medical Center. On admission, a CT scan

of the abdomen was accomplished and revealed

a moderate volume loss infiltrate in the left

lung base, apparent present to a lesser

extent on the right. There was free air

noted within the abdomen and also noted to be

some free fluid. This was felt to be due to

the patient's prior surgery, however, a more

acute process could not be ruled out. There

were also some distended loops of small bowel

with apparent decompression of the distal

small bowel which suggested at least a

partial small bowel obstruction, although

again, the diagnosis included ileus. A CT of

the pelvis was unremarkable except as noted

on the CT scan. There was some free fluid

and free air within the pelvis. Since

transfer to West Florida Hospital and the

patient's attending physician could not be

arranged, decision was made to admit to

Dr. Barber on GYN service. * * * IMPRESSION: Severe abdominal pain 6 days

post exploratory surgery with bilateral

salpingo-oophorectomy, partial omentectomy,

appendectomy and adhesiolysis. No signs at

this time of active infection or perforation.

The most likely diagnosis is a severe

postoperative ileus, however, the patient

warrants close observation.

18. An ileus occurs when the bowel is "asleep" and not

moving. Dr. Barber transferred R.R. to the Intensive Care Unit

overnight for close observation.

19. R.R.'s temperature at the time of admission was 96.8.

The History of Present Illness taken from R.R. does not mention

the rise in temperature following discharge from West Florida

Hospital, or the phone call to Dr. Lee's office.

20. On December 20, 2005, Dr. Althar saw R.R. in

consultation. At that time, her white count was 8.4 with 48

bands, indicating overwhelming sepsis. Dr. Althar took her

immediately to surgery. Surgery revealed a bowel perforation of

the sigmoid colon, and Dr. Althar performed a sigmoid colectomy,

end colostomy, and Hartmann procedure. R.R. suffered some

complications after surgery, which were not unexpected, and

remained in the hospital until her discharge January 16, 2006.

21. The Department presented the expert testimony of Robert

W. Holloway, M.D. Dr. Holloway graduated from Vanderbilt

University Medical School; completed his residency in Obstetrics

and Gynecology at the University of Alabama at Birmingham; and

completed a fellowship in gynecology oncology at Georgetown

University Hospital. Dr. Holloway has been licensed as a medical

doctor in Florida since 1990, and is board certified in

obstetrics and gynecology, and gynecologic oncology. He is

currently the co-Medical Director of the Gynecologic Oncology

program at the Florida Hospital Cancer Institute in Orlando,

Florida, and a clinical instructor for the Obstetrics and

Gynecology Residency Program at Orlando Regional Medical Center.

22. Dr. Holloway is in an office on the Florida Hospital

campus, where there are four attending physicians and three

follows in training. Fifty to 60 percent of his patients are

oncology patients, with the remainder having benign issues.

23. Dr. Holloway opined that in this case, the bowel

perforated most likely late Sunday evening or early Monday

morning, probably 6-12 hours before R.R. woke up in extreme pain.

He found no violation of the standard-of-care regarding the

denuding of the serosa in the original surgery, viewing it as an

anticipated outcome with a difficult case of endometriosis.

However, he opined that Dr. Lee fell below the appropriate

standard-of-care when he failed to evaluate the patient on Friday

afternoon when she had a temperature of 102 degrees.

24. Dr. Holloway indicated that the most common indications

of bowel perforation in post-operative patients are abdominal

pain and fever. He knew of no cases where a perforation occurred

with the patient presenting with fever alone. He also agreed

that it is common for physicians to rely on their staff to triage

patients, and to relay information back to patients. It is

common, according to Dr. Holloway, for doctors to train staff to

tell the patient to call back or go to the emergency room if a

problem does not resolve itself, and staff normally does the

majority of charting.

25. With respect to the directions to the patient to call

back or go to the emergency room, Dr. Holloway could not say that

those directions are always noted in the chart for patients in

his office, although they frequently are. Most importantly,

Dr. Holloway could not conclude that Ms. Harper did not give the

instructions to R.R. because it was not specifically noted in the

chart, and he would be apt to give the staff the benefit of the

doubt. He could not conclude from the absence of the note that

proper instructions were not given.

26. Dr. Holloway also indicated that he did not believe the

bowel had perforated as of Friday afternoon when the call was

made to Dr. Lee's office.

27. Respondent presented the testimony of John Douglas

Davis, M.D., who serves as the Director of Gynecology and

Associate Residency Director of the Department of Obstetrics and

Gynecology at the University of Florida College of Medicine.

Dr. Davis graduated from medical school at Wake Forest University

and received his post-doctoral training at the University of

Florida. Dr. Davis is licensed as a medical doctor in the State

of Florida, and has been board certified in obstetrics and

gynecology since 1992. Ninety-five percent of his patients are

gynecological patients.

28. Dr. Davis did not believe that Respondent violated the

appropriate standard-of-care in his treatment of R.R. He opined

that it is reasonable to rely on staff to perform triage

functions with respect to calls from patients, and would

interpret the note from Ms. Harper as not being indicative of

bowel perforation. He testified that it was more likely to

assume that the fever was caused by a pulmonary source, and the

prescription for Levaquin was consistent with that assumption.

In addition, the CT scan upon admission to SRMC was consistent

with findings of pneumonia, and in Dr. Davis' view, the eventual

determination that the bowel perforated does not mean that

pneumonia was not also present.

29. Like Dr. Holloway, Dr. Davis testified that bowel

perforation does not present without severe abdominal pain, which

was not reported to Dr. Lee. Dr. Davis opined that R.R.'s fever

of 102 degrees must be interpreted in light of the patient's

situation at discharge from the hospital, which Dr. Lee already

knew. Most importantly, Dr. Davis testified that not seeing R.R.

on Friday afternoon did not have an impact on her subsequent

clinical course. His testimony is credited.

30. In summary, it is found that Ms. Harper did instruct

the patient to go to the emergency room at West Florida Hospital

should her symptoms not improve after a couple of hours with the

new medication. Dr. Lee's reliance on her to give that

instruction is within the standard-of-care for a reasonably

prudent similar physician under similar conditions and

circumstances.

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with sections 120.569 and 120.57(1), Florida

Statutes.

32. This is a proceeding to take disciplinary action

against Respondent's license to practice as a physician. Because

of the penal nature of these proceedings, the Department has the

burden of proving the allegations in the Administrative Complaint

by clear and convincing evidence. Dep't of Banking and Fin. v.

Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987). As stated by the Supreme

Court of Florida,

Clear 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 testimony must

be precise and lacking in confusion as to the

facts in issue. The evidence must be of such

a weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

In re Henson

, 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

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

33. Moreover, in disciplinary proceedings, the statutes and

rules for which a violation is alleged must be strictly construed

in favor of Respondent. Elmariah v. Dep't of Prof'l Reg. , 574

So. 2d 164 (Fla. 1st DCA 1990); Taylor v. Dep't of Prof'l Reg. ,

534 So. 2d 782, 784 (Fla. 1st DCA 1988).

34. The Administrative Complaint states in pertinent part:

16. Section 458.331(1)(t), Florida Statutes

(2005), subjects a doctor to discipline for

committing malpractice as defined in section

456.50. Section 456.50, Florida Statutes

(2005), defines medical malpractice as the

failure to practice medicine in accordance

with the level of care, skill, and treatment

recognized in general law related to health

care licensure. 17. Level of care, skill, and treatment

recognized in general law related to health

care licensure means the standard of care

specified in Section 766.102. Section

766.102(1), Florida Statutes (2005), defines

the standard of care to mean ". . . 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

circumstances, is recognized as acceptable

and appropriate by reasonably prudent similar

health care providers. . . ." 18. Respondent failed to meet the standard

of care recognized by a reasonably prudent

similar physician under similar circumstances

by failing to have Patient R.R. evaluated,

either by himself/herself or an emergency

room physician, within 12 to 24 hours after

the patient called on December 16, 2005,

complaining of a temperature of 102, in order

to rule out a pelvic abscess. 19. Based on the foregoing, Respondent has

violated Section 458.331(1)(t), Florida

Statutes.

35. The Department has failed to meet its burden of proof.

36. This case rests on the evaluation of the telephone

call(s) on Friday, December 16, 2005, between R.R. and Ms. Harper

of Dr. Lee's office. There is no question that the two versions

of the telephone exchange are irreconcilable, and that the

witnesses were asked to remember details of a conversation taking

place over five years ago. After careful review of the complete

record, there is not clear and convincing evidence that

Ms. Harper did not tell R.R. to pick up a prescription for

Levaquin and that, if the fever did not respond within about two

hours, to go to the emergency room.

37. R.R.'s experience was no doubt traumatic and life-

changing. However, her description of the telephone call simply

does not correspond with what written record there exists of the

exchange. Nor does her account fit with the patient history she

gave upon admission at SRMC, where she apparently reported that

she was doing well until her admission the morning of

December 19, 2005. By contrast, Ms. Harper's account was

straightforward and logical, and consistent with her

contemporaneously recorded notes to Dr. Lee, to the patient

record and to the medication log. Her explanation of the

protocol she follows and the directions she routinely provides to

post-surgical patients was consistent with the testimony of

Dr. Lee regarding the protocol he wants followed.

38. The Department suggests that her testimony should be

rejected because she admitted that she did not remember the

conversation "verbatim." However, most people would not remember

a conversation verbatim ten minutes after it occurs, much less

five years later. The more important question would be whether

she had an independent recollection of the events related to the

phone call: a question that was not asked of her.

39. The Department placed great significance on the fact

that, while the medical record indicated that a prescription for

Levaquin had been called in to the pharmacy, the record did not

specifically state that Ms. Harper called the patient back and

advised her to go to the emergency room if she saw no results

within a couple of hours. However, the Department has not

charged Respondent with failing to maintain medical records to

justify the course of treatment, in violation of section

458.331(1)(m). A licensee cannot be disciplined for a violation

not charged. Trevisani v. Dep't of Health , 908 So. 2d 1108 (Fla.

1st DCA 2005); Ghani v. Dep't of Health , 714 So. 2d 1113 (Fla.

1st DCA 1998); and Willner v. Dep't of Prof. Reg. , 563 So. 2d 805

(Fla. 1st DCA 1990).

40. Here, both experts testified that it is not unusual for

staff to triage patients and make return phone calls such as the

one at issue in this case. Dr. Holloway testified that, given

the testimony of Dr. Lee and Ms. Harper, he would give them the

benefit of the doubt, and both experts stated that the fact that

the details of the return call were not documented did not mean

that the return phone call and the directions to go to the

emergency room did not take place.

41. It is possible that, given the amount of pain

medication and the fever she was experiencing, R.R. simply did

not hear the instructions to go to the emergency room if her

symptoms did not improve. That being said, had her symptoms

continued and had she followed the advice to go to the emergency

room, she would have been evaluated within the 12-24 hours

Dr. Holloway indicated would be appropriate.

42. In any event, the undersigned accepts as credible the

opinion of Dr. Davis who testified that Dr. Lee's actions did not

fall below the accepted standard-of-care. Based on the record

presented, the facts taken as a whole do not present clear and

convincing evidence that Dr. Lee violated section 458.331(1)(t)

as alleged in the Administrative Complaint.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED that the Florida Board of Medicine enter a Final

Order dismissing the Administrative Complaint in its entirety.

DONE AND ENTERED this 23rd day of September, 2011, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 23rd day of September, 2011.

COPIES FURNISHED: Elana J. Jones, Esquire

Ian Brown, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

Brian A. Newman, Esquire

Pennington, Moore, Wilkinson,

Bell and Dunbar, P.A.

215 South Monroe Street, Second Floor

Post Office Box 10095

Tallahassee, Florida 32302 Nicholas W. Romanello, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32299-170 Joy A. Tootle, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399

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

i ssue the final order in this case.