14-000001PL Department Of Health, Board Of Medicine vs. Norris Michael Allen, M.D. Status: Closed Recommended Order on Friday, July 18, 2014.

Summary: DOH did not prove by clear and convincing evidence that on-call ob-gyn fell below standard of care by not responding to a request for assistance with a difficult delivery.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH,

BOARD OF MEDICINE,

Petitioner,

vs. Case No. 14 - 0001PL

NORRIS MICHAEL ALLEN, M.D.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On May 1 3 through 15, 2014, a final administrative hearing

in this case was held in Fort Myers, Florida, before J. Lawrence

Johnston, Administrative Law Judge, Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Alicia Elaine Adams, Esquire

Candac e Rochester , Esquire

Caitlin Mawn , Esquire

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Daniel W. Anderson, Esquire

Anderson Law Group

Suite 500

13577 Feather Sound Drive

Clearwater , Florida 33762 - 5532

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent should be

disciplined for not meeting the Ð standard of care Ñ by not

responding appropriately to calls to him, as an on - call

obstetrician, to come to the hospital and assist with a de livery .

PRELIMINARY STATEMENT

The Respondent disputed specific allegations and requested a

hearing on the Second Amended Complaint filed against him in this

case (DOH C ase 2011 - 10808) by the Department of Health (DOH).

The Second Amen ded Complaint charged a violation of section

458.331(1)(t)1 . , Florida Statutes (2010), 1/ for failure to meet

the standard of care.

The parties filed a pre - hearing stipulation that included

statements of position, admitted facts, and agreed law. At the

f inal hearing, DOH called several witnesses, including two

certified nurse midwives, two registered nurses, and two

physicians (one as an expert on the standard of care). The

Respondent testified and called two physicians as expert

witnesses on the standar d of care. The patient records were

received in evidence as Petitioner Ó s Exhibit 1. R espondent Ó s

Exhibits 8, 12, and 42 also were received in evidence.

The Transcript of the final hearing was filed, and the

parties filed proposed recommended orders, wh ich have been

considered.

FINDING S OF FACT

1. The Respondent is licensed to practice medicine in

Florida. He holds license ME 100568. He is board - certified in

obstetrics and gynecology by the American Board of Obstetrics and

Gynecology.

2. In March 2 011, the Respondent was one of two

ob stetrician - gyn ecologists (ob - gyns ) employed by Family Health

Centers of Southwest Florida (Family Health) . Family Health also

employed certified nurse midwives (CNM) and had agreements with

two area hosp itals owned by Lee Memorial System , Health Park and

Gulf Coast. Health Park is a L evel 3 hospital and has the means

to provide the medical services needed for premature and

high - risk deliveries. Gulf Coast is a L evel 1 hospital and does

not provide those services.

3. On March 21, 2011, the Respondent was the on - call ob - gyn

for the Family Health practice from 7:00 p.m. that evening until

7:00 a.m. the next morning.

4. At 7:53 p.m. on March 21, 2011, Family Health

obstetrical patient, M.T., was admitted to Gulf Coas t Ó s emergency

room, where she reported that she had been having contractions

for two hours and was experiencing pain at the level of nine on a

scale of ten.

5. M.T. was a high - risk patient. She suffered a stillbirth

in 2008 and a miscarriage in 2009. Yet, she had late and minimal

prenatal care for being high - risk ( having been seen by the Family

Health practice only twice, not until the second or third

trimester, and not b y one of the doctors). T he standard for

viability at the time was 24 weeks , assum ing good prenatal care

and delivery in a L evel 3 hospital with all needed specialists

available, which was not the case at Gulf Coast.

6. After triage in the emergency department of Gulf Coast,

M.T. was admitted to the hospital and taken to labor and

de livery. Barbara Carroll, a CNM employed by Family Health, was

on duty there. Labor and delivery was busy that evening, and

CNM Carroll saw M.T. at approximately 8:55 p.m. CNM Carroll took

the patient Ó s history and noted in the patientÓs medical record

t hat an ultrasound done on February 24, 2011, indicated that the

patient was 20 weeks and five days pregnant at that time, with a

margin of error of plus or minus two weeks. Based on that

ultrasound , CNM Carroll noted that the gestational age of the

fetus on March 21, 2011, was 23 weeks and four days. ( There was

no evidence addressing the apparent miscalculation -- if the

gestational age on February 24 was 20 weeks and five days, it

would have been 24 weeks and 2 days on March 21.) CNM Carroll

then did a sp eculum examination, which revealed that the patient

was in active labor, fully dilated and fully effaced, with a

bulging bag of wa ter (i.e., amniotic fluid). The type of

examination performed did not allow CNM Carroll to determine the

presenting part. CN M Carroll wrote these observations and

impressions in the patient Ó s medical record.

7 . At approximately 9:00 p.m., CNM Carroll telephoned the

Respondent , who was at Health Park at the time . It was not clear

from the evidence what was said during their conversation.

CNM Carroll testified that she reported what she had written in

the medical record and asked the Respondent to come to the

hospital immediately to assist with the delivery because she was

not comfortable doing it herself. She testified that she thought

the fetus was potentially viable, with a gestational age of 27 or

28 weeks , based on her examination and fetal heart monitor

tracings. However, s he did not recall telling the Respondent her

belief as to the actual gestational age of the fetus .

8. CNM Carroll testified that, in response to her report ,

t he Respondent told her to start Pitocin , which would accelerate

the labor and delivery process, and turn off the fetal monitor.

She testified that when she balked, he said, Ð I told you what t o

do, Ñ and she responded, Ð and I told you , I need you to come in . Ñ

She testified that it was clear to her that the Respondent knew

from this curt exchange that she was not going to follow his

orders. She testified that she declined to Ð argue Ñ with the

Re spondent , which she had done on other occasions in the past.

She testified that she thought he would change his mind and call

back w ith new orders, which she claimed was a pattern of his.

9 . The Respondent recalled the conversation somewhat

differently . He denied telling CNM Carroll to start Pitocin or

to turn off the fetal monitor. He testified that he anticipated

active labor would proceed and result in an abortion, since the

fetus was no t viable and would not survive a delivery at Gulf

Coast that n ight. His plan was to give the patient pain

medication for comfort and to manage the patient expectantly --

meaning do nothing, and continue to monitor the patient. He

testified that he hoped labor might cease and the baby might

possibly get to 24 weeks an d be viable, if the labor and delivery

could be arranged to occur at a Level 3 facility like Health

Park.

10. After the conversation , CNM Carroll completed her

entries in the patient Ó s medical record. She wrote her

impression that the patient was in act ive labor and her plan that

the patient would be monitored, that the Respondent was aware and

anticipated a spontaneous vaginal delivery , and that she expected

a normal spontaneous vaginal delivery . She testified that she

wrote Ð normal Ñ unintentionally du e to the stress she was feeling

about the prospect of doing the delivery herself, without the

Respondent being there to assist . Her notations make no

reference to an order to start Pitocin or to turn off the fetal

monitor.

1 1 . CNM Carroll testified that in the same approximate

timeframe that she talked to the Respondent, she had Health

Park Ó s transport team called to arrange for transportation to

that facility Ó s neonatal nursery immediately after childbirth and

had Gulf Coast Ó s high - risk delivery team ( c onsisting of a

neonatologist, a respiratory therapist, and an anesthesiologist )

called to be ready for the delivery and transport to Health Park.

She did not tell the Respondent she was doing this.

1 2 . CNM Carroll Ó s testimony about her telephone

convers ation with the Respondent at or about 9 :00 p.m. that night

is inconsistent with some of her entries in the patient Ó s medical

record. If CNM Carroll Ó s testimony was not false in those

respects , it may be mistaken, and it could be that CNM Carroll

was confu sing this telephone conversation with one later in the

evening. CNM Carroll was very busy that evening, attending to

several patients at the same time.

1 3 . Although not reflected in CNM Carroll Ó s entries in the

medical record, and unbeknownst to her, th e Respondent initially

ordered an ultrasound and comprehensive blood test . The

ultrasound results indicated at about 9:40 p.m. that the baby was

in a breech position. The blood test results, which were

communicated to the Respondent at about 10 :00 p.m., indicated

that the patient had an active infection (i.e.,

chorioamnionitis) . At that point, the Respondent no longer

believed that expectant management was appropriate and , at

10:05 p.m. , ordered Pitocin to be administered to speed the

delivery of the fet us before the infection spread . He reasonably

did not expect the baby to survive.

1 4 . It is not clear from the evidence that t he Respondent

was told during these communications , at about 10 :00 p.m. , that

the baby was breech. The Respondent claims that he was not told.

It also is unclear whether the Respondent ordered the fetal

monitoring to cease at that time . The Respondent said he did

not. Some of the other witnesses recalled that he did, but there

is no indication of such an order in the medical r ecord. In any

event, there was no clear and convincing evidence that it would

have been inappropriate to turn off the fetal monitor at that

point.

1 5 . At about the same time that the Respondent was order ing

Pitocin, CNM Teresa Buckley returned to the ho spital .

CNM Buckley Ó s shift had started at 7 :00 a.m. that morning, but

CNM Carroll covered for her in the middle of the shift, so

CNM Buckley could attend a child Ó s basketball game. CNM Buckley

took report from CNM Carroll on the patient, M.T., and was t old

the gestational age of the fetus, the status of labor (active),

and the imminence of delivery. She probably was told that

CNM Carroll thought the fetus could be viable, despite its

gestational age based on the heartbeat and monitor tracings, and

that the Respondent had been called earlier and ask ed to come to

the hospital to help with the delivery .

1 6 . After taking report, CNM Buckley examined the patient,

reviewed the monitor tracings, talked to the patient, palpated

the contractions, and examined t he patient to determine the

position of the fetus . During , or shortly after , the

examination, the patient Ó s membrane ruptured. The rupture of the

membrane may have been caused or hastened by CNM Buckley Ó s

examination. Shortly after the membrane ruptured , at

approximately 10:20 p.m., the baby Ó s foot appeared . CNM Buckley

attempted to facilitate the breech delivery by sweeping the

baby Ó s arms down and rotating. Both feet and legs and the torso

were delivered, but the baby Ó s head was stuck and could not b e

delivered. At that point, at about 10:30 p.m., CNM Buckley asked

the charge nurse to telephone the Respondent to say she needed

him to come in to help with the delivery.

1 7 . The charge nurse telephoned the Respondent. The

evidence is unclear exactly what she told him. The medical

record states that she asked him to come in to assist with the

delivery. The charge nurse testified that she informed him that

the patient Ó s membrane had ruptured and asked if he was coming

in. The Respondent Ó s best recoll ection is being told that

CNM Buckley, who he did not know was on the case, needed his help

with a breech delivery. He denies being told that the patient Ó s

membrane had broken or that it was a footling breech delivery

with the head stuck. The Respondent testified that he would have

immediately agreed to proceed to the hospital had he been told

either of those facts. He testified that he interpreted what he

was told to mean he was being asked to help the CNM perform a

breech extraction and that he said, Ð no, Ñ his orders were to

start Pitocin. The charge nurse testified that the Respondent

asked if Pitocin was running, said to make sure it was running,

and hung up.

1 8 . It is unclear from the evidence exactly when Pitocin

was started. The medical record indicates that it was not

started until 10:30 p.m., some 25 minutes after the Respondent

ordered it. This would have been about the time when the

Respondent asked the charge nurse about it.

1 9 . When the charge nurse reported to bedside , the CNM

asked if the Respondent was coming in and if he was almost there.

The charge nurse said she didn Ó t know, he didn Ó t say. The CNM

had her call back to find out.

20 . According to the medical record, the charge nurse Ó s

second call was made at 10:33 p.m., the Respo ndent was asked to

Ð come in for breech delivery, Ñ and the Respondent said, Ð no. Ñ

According to the testimony of the charge nurse, she told the

Respondent that the CNM wanted the Respondent at bedside because

she was having difficulty with the breech delive ry and the baby Ó s

head was stuck. The Respondent denied being told this in either

of the two telephone calls. He testified that, still thinking

the membrane was intact and the fetus was in the patient Ó s

pelvis, he repeated his instruction, Ð no, Ñ to a bre ech

extraction. It was not proven by clear and convincing evidence

that the Respondent was not being truthful about what he

understood from the communications to him in the 10:30 and

10:33 p.m. telephone calls.

2 1 . When the charge nurse heard what the R espondent had to

say , she hung up and reported to the CNM and others that the

Respondent was not coming in. They paged Dr. Garner, the other

ob - gyn employed by Family Health. Dr. Garner promptly answered

the page and was asked to come in to assist with t he delivery.

He proceeded to the hospital and arrived at bedside at 10:55 p.m.

The baby died during the delivery process and was delivered at

11:06 p.m.

2 2 . The Respondent testified that notwithstanding his

inaccurate understanding of the status of the patient as a result

of the telephone calls at 10:30 and 10:33 p.m. , and his negative

responses to the charge nurse, he actually proceeded to Gulf

Coast. He stated that he telephoned the hosp ital on the way and

was told that Dr. Garner was at bedside. At that point, he

decided there was no need for him to go to the hospital and

turned around to return to Health Park.

2 3 . During the hearing, DOH did not challenge or refute the

Respondent Ó s testimony regarding his last phone call, but DOH Ó s

proposed recom mended order questions the Respondent Ó s veracity on

the ground that the medical record does not mention it , and none

of the other witnesses testified to knowing about it. Neither

party produced other evidence that might establish whether the

telephone cal l actually occurred. On this record, it was not

proven by clear and convincing evidence that the Respondent did

not proceed to Gulf Coast in response to the telephone call at

10:33 p.m. , only to turn around when told that Dr. Garner was at

bedside.

2 4 . DOH called an expert, Dr. Babu Veerendra Chitriki, who

is a board - certified ob - gyn, to testify that the standard of care

required that the Respondent, as the on - call ob - gyn, respond to

each and every request for assistance he received from a CNM or

nurse o n the evening of March 21, 2011, by agreeing to come to

the hospital .

2 5 . Dr. Chitriki Ó s testimony was refuted persuasively by

the Respondent Ó s two experts, also board - certified ob - gyns,

Drs. Mark Spence and Allison Thresher . They opined that it would

b e within the standard of care for the Respondent to ask

questions, get an accurate understanding of the medical

situation, and exercise medical judgment based on that

understanding. Neither thought it was required by the standard

of care for the Responden t to drop everything and come to the

hospital as a result of the telephone calls he received on

March 21, 2011, no questions asked.

2 6 . As to the telephone call from CNM Carroll at 9:00 p.m.,

i t was not proven by clear and convincing evidence that it

res ulted in a clear request requiring the Respondent to accede

and proceed to the hospital immediately . Rather, at most, it

appears to have resulted in an unresolved disagreement between

the health care professionals as to the appropriate plan of

action.

2 7 . As to the 10:30 and 10:33 p.m. telephone calls,

Drs. Spence and Thresher , as well as the Respondent, agreed that

the standard of care would have required a positive response from

the Respondent, had he been told what was occurring with the

patient at th e time. Instead, they view ed those telephone calls

as evidence of an unfortunate failure of communication between

the Respondent and the CNMs and nurses.

2 8 . It was not proven by clear and convincing evidence that

the Respondent was lying when he testif ied that he was not told

what was occurring at 10:30 and 10:33 p.m. It also was not

proven by clear and convincing evidence that the facts were

clearly communicated to the Respondent during those telephone

calls. Finally, it was not proven by clear and c onvincing

evidence that despite the failure to communicate, the Respondent

did not in fact proceed to the hospital in response to those

telephone calls, only to turn around when he learned that

Dr. Garner was at beside.

2 9 . The Respondent is not without his share of fault for

the miscommunications that occurred on March 21, 2011. Conflicts

between him and the Family Health practice may have been a

factor. He could have been a better listener, and he could have

asked more and better questions to make sur e he was getting the

full picture of what was going on with the patient , particularly

at the time of the 10:30 and 10:33 p.m. telephone calls.

However, DOH did not charg e him with practicing below the

standard of care by not communicating. Rather, DOH ch arged him

with failure to come to the hospital to assist with a difficult

delivery after receiving a clear request to do so, a charge that

was not proven by clear and convincing evidence.

CONCLUSIONS OF LAW

30 . Because it seeks to impose license discipli ne, DOH has

the burden to prove its allegations by clear and convincing

evidence. See Dep Ó t of Banking & Fin. v. Osborne Stern & Co. ,

670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987). This Ð entails both a qualitative and quant itative

standard. The evidence must be credible; the memories of the

witnesses must be clear and without confusion; and the sum total

of the evidence must be of sufficient weight to convince the

trier of fact without hesitancy. Ñ In re Henson , 913 So. 2d 579,

590 (Fla. 2005)(quoting Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983)). Ð Although this standard of proof may be

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

evidence that is ambiguous. Ñ W estinghouse Electric Corp. v.

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

3 1 . DOH charges the Respondent with medical malpractice as

defined in section 456.50, Florida Statutes (2010), for not

responding appropriately to requests for assistance on March 21,

2011, in viol ation of section 458.331(1)(t) , Florida Statutes .

Section 456.50(1)(g) , Florida Statutes, defines medical

malpractice as Ð the failure to practice medicine in accordance

with the level of care, skill, and treatment recognized in

general law related to heal th care licensure. Ñ According to

section 766.102(1), Florida Statutes, such a failure occurs upon:

[A] breach of the prevailing professional

standard of care for that health care

provider. The prevailing professional

standard of care for a given health c are

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.

3 2 . In this case, DOH did not prove by clear and convincing

evidence that the Respondent did not meet the standard of care ,

as charged . DOH did not charge the Respondent with having a role

in the failure of communication between him and the Family Health

CNMs and nurses. See Trevisani v. D ep Ó t of Health , 908 So. 2d

1108 (Fla. 1st DCA 2005); Aldrete v. Dep Ó t of Health, Bd. of

Med. , 879 So. 2d 1244 (Fla. 1st DCA 2004); Ghani v. Dep Ó t of

Health , 714 So. 2d 1113 (Fla. 1st DCA 1998); Willner v. Dep Ó t of

Prof Ó l Reg., Bd. of Med. , 563 So. 2d 805 ( Fla. 1st DCA 1990).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

order dismissing the charges against the Respondent in this case.

DONE AND ENTERED this 18th day o f July , 2014 , 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 18th day of July , 2014.

ENDNOTE

1/ Unless otherwise noted, all statutory references are to

Florida Statutes (2010), which were th e statutes in effect during

the relevant conduct of the Respondent.

COPIES FURNISHED:

Allison M. Dudley, Executive Director

Board of Medicine

Department of Health

Bin C - 03

4052 Bald Cypress Way

Tallahassee, Florida 32399

Jennifer A. Tschetter, Gener al Counsel

Department of Health

Bin A - 02

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

Daniel W. Anderson, Esquire

Anderson Law Group

Suite 500

13577 Feather Sound Drive

Clearwater, Florida 33762 - 5532

Alicia Elaine Adams, Esquire

Candace Roche ster, Esquire

Caitlin Mawn, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this R ecommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.