12-001177PL Department Of Health, Board Of Medicine vs. Robert Dean Marshall, M.D. Status: Closed Recommended Order on Wednesday, July 25, 2012.

Summary: DOH proved medical malpractice by radiologist who failed to report obvious aortic aneurysm. Respondent did not defend despite mailed notices.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE , )

)

Petitioner , )

)

vs. ) Case No. 12 - 1177PL

)

ROBERT DEAN MARSHALL, M.D. , )

)

Respondent . )

)

RECOMMENDED ORDER

On June 11, 2012, an administrative hearing was held in this

case in Tallahassee , Florida, before J. Lawrence Johnston,

Administrative Law Judge (ALJ), Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Greg S. Marr, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

For Respondent: (No appearance)

STATEMENT OF THE ISSUE

The issue is whether Respon dent ' s Florida license to

practice medicine should be revoked for malpractice under

section 458.331(1)(t), Florida Statutes (2006).

PRELIMINARY STATEMENT

On April 23, 2010, Petitioner, Department of Health (DOH),

filed an Administrative Complaint against Respondent, Robert Dean

Marshall, M.D., seeking the imposition of license discipline for

alleged malpractice. On May 21, 2010, Respondent ' s attorney

acknowledged Respondent ' s receipt of the Administrative Complaint

at 400 East Colonial Drive, Apartment 31 0, Orlando, Florida

32803, and requested a hearing under sections 120.569 and 120.57,

Florida Statutes, to resolve disputed facts. On September 8,

2011, Respondent ' s attorney gave notice to DOH that he had no

contact with Respondent " for some time " and wa s withdrawing from

the representation. DOH diligently attempted to contact

Respondent at his last known address, where he had received the

Administrative Complaint, and at a prior address, where

Respondent ' s ex - wife lives, to no avail.

On March 30, 2012, DOH referred Respondent ' s request for a

hearing to DOAH for assignment of an ALJ. The referral suggested

that Respondent still was represented by counsel. On April 2,

2012, DOH gave notice of the previous withdrawal of counsel , and

leave to withdraw was granted. The final hearing was then

scheduled for June 11, 2012, in Tallahassee. Respondent was

given notice of the final hearing by mai l at his last known

addresses.

Respondent did not participate in any aspect of this

proceeding. He did not appear at the final hearing. At the

final hearing, DOH called Daryl Fruth, Roxanne McCarthy,

Paula Simon, and Tony Hannah. DOH had Petitioner ' s Exhibits 1

through 3 and 5 through 9 admitted in evidence. Petitioner ' s

Exhibit 6 was the transcript of the deposition of expert witness

Kenneth K. Hines, Jr., M.D.

The Transcript of the final hearing was filed at DOAH on

June 27, 2012. DOH filed a Proposed Recommended Order, which has

been considered.

FINDING S OF FACT

1. Respondent is licensed to practice medicine in Fl orida,

holding license number ME 66823. He is a radiologist and is

certified by the American Board of Orthopedic Radiology and

Diagnostic Radiology.

2. On June 17, 2004, the Board of Medicine (Board)

disciplined Respondent ' s medical license by issuing a letter of

concern, imposing a $15,000 fine, assessing $4,010.59 in costs,

requiring eight hours of continuing medical education, and

prohibiting him from treating or prescribing medication to

members of his family.

3. On or about October 4, 2006, while wo rking at Drew

Medical, Inc., Respondent performed a diagnostic procedure called

an intravenous pyelogram (IVP) without tomograms for Patient

G.P., who had complained of right - side pain and had a history of

kidney stones. An IVP without tomograms is a seri es of time -

lapse x - rays using a dye material to provide radiographically

contrasting images to detect a stone in a kidney or ureter. The

resulting x - ray images revealed a partial obstructing stone in

the right - side kidney/ureter area, which Respondent det ected and

reported.

4. One of the resulting x - ray images contained an anomaly

having the classical appearance of an abdominal aortic aneurysm,

including conspicuous tissue displacement and rim calcification.

It had an elongated, water balloon - type appe arance with

calcifications on one of the walls. It was alarming or life -

threatening in size, such that it could cause death by bleeding.

Respondent did not mention the aneurysm in his report or recommend

any further evaluation of the anomaly .

5. Althoug h he was tasked to look for kidney stones,

Respondent ' s failure to report the aneurysm or recommend any

further evaluation of the anomaly fell below the level of care,

skill, and treatment that is recognized by reasonably prudent,

similar physicians as bei ng acceptable .

6. Patient G.P. was admitted to Orlando Regional H ospital

with a ruptured abdominal aortic aneurysm on October 6, 2006.

Attempts were made to repair the rupture , b ut they were not

successful. The patient died on October 12, 2006.

7. By his conduct in disappearing without a trace, despite

the diligent efforts of DOH to find him, and not participating in

any manner in the hearing he requested to dispute the

Administrative Complaint, Respondent effectively abandoned his

license to practice medicine in Florida.

CONCLUSIONS OF LAW

8. Section 458.331(1)(t), Florida Statutes (2006),

authorizes the Board to discipline a Florida - licensed physician

who does not practice medicine with "that level of care, skill,

and treatment which is recognized b y a reasonably prudent similar

physician as being acceptable under similar conditions and

circumstances." In evaluating a physician under this

provision, the Board gives great weight to the definition in

section 766.102(1), Florida Statutes: "The prevail ing

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."

9. Because it seeks to impose license discipline, DOH has

the burden to prove its allegations by clear and convincing

evidence. Dep ' t of Banking & Finance v. Osborne Stern & Co . ,

Inc. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 5 10 So.

2d 292 (Fla. 1987). DOH met its burden of proof. Petitioner was

guilty of medical malpractice in failing to report Patient G.P. ' s

aneurysm or recommend any further evaluation of the anomaly

evident in the radiological examin ation Respondent perfor med.

10. Under Florida Administrative Code Rule 64B8 -

8.001(2)(t), the appropriate penalty for medical malpractice can

range from a year 's probation to revocation and an administrative

fine from $1,000 to $10,000. Rule 64B8 - 8. 001(3) sets out

aggravating a nd mitigating circumstances in deter mining an

appropriate penalty.

11. In this case, Respondent's medical malpractice exposed

the patient, G.P., to death. In addition, Respondent has a

discipline history involving intentional misconduct. Finally,

Respon dent has essentially abandoned his license by disappearing

and not facing the charge of medical malpractice alleged by DOH.

See § 456.035, Fla. Stat. (licensees are solely responsible for

providing a current mailing address, and service by regular mail

to the address of record is adequate and sufficient notice to the

licensees). See also Griffis v. Dep't of Bus. & Prof. Reg. , 2012

Fla. App. LEXIS 2781, 37 Fla. L. Weekly D488 (Fla. 1st DCA 2012).

Under these circumstances, the maximum discipline is approp riate.

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 Respondent guilty of medical malpractice, revoking his

medical license, and imposing a $10,000 ad ministrative fine.

DONE AND ENTERED this 2 5 th day of July , 2012 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 5 th day of July , 2012 .

COPIES FURNISHED:

Greg S. Marr, Esquire

Department of H ealth

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

Robert Dean Marshall, M.D.

Apartment 310

400 East Colonial Drive

Orlando, Florida 32803

Robert Dean Marshall, M.D.

5987 Southwest Moore Street

Palm City, Florida 34990

Jennifer A. Tschetter, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

Joy Tootle, 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.