15-000775PL Department Of Health, Board Of Medicine vs. Kenneth D. Stahl, M.D. Status: Closed Recommended Order on Wednesday, July 15, 2015.

Summary: Petitioner failed to prove that a wrong procedure was performed where the infected organ was removed and the patient's symptoms resolved, although the procedure that had been identified was not performed, because the procedure may have been misidentified.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MEDICINE,

Petitioner,

vs. Case No. 15 - 0775PL

KENNETH D. STAHL, M.D.,

Respondent.

_______________________________/

DEPARTMENT OF HEALTH, BOARD OF

MED ICINE,

Petitioner,

vs. Case No. 15 - 0776PL

EDDIE MANNING, M.D.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On April 23 and May 26, 2015, hearing was held by video

teleconference at locations in Miami and Tallahass ee, Florida,

before F. Scott Boyd, an Administrative Law Judge assigned by the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: John B. Fricke, Jr., Esquire

Jay Patrick Reynolds, Esquire

Cor ynn Colleen Gasbarro, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

For Responden t Kenneth D. Stahl, M.D. :

Monica Felder Rodriguez, Esquire

Dresnick and Rodriguez, P.A.

7301 Wiles Road, Suite 107

Coral Springs, Florida 33067

For Respondent Eddie Manning, M.D.:

Maria Arista - Volsky, Esquire

Miami - Dade County Attorney ' s Office

111 Northwest First Street, Suite 2800

Miami, Florida 33128

STATEMENT OF THE ISSUE S

The issue s in this case are whether Respondents performed a

wrong procedure on patient C.C., as set forth in the second

amended administrative complaints, and if so, what is the

appropriate sanction.

PRELIMINARY STATEMENT

On April 13, 2015, Petitioner, Department o f Health

(Department), issued second amended administrative complaints

against Respondents. The complaints charged Respondents with

performing a wrong procedure on patient C.C. in violation of

section 456.072(1)(bb), Florida Statutes (2010). Respondents

disputed material facts alleged in the complaints and requested

an administrative hearing.

At hearing, four joint exhibits, J - 1 through J - 4, were

admitted into evidence. Petitioner offered eight exhibits,

admitted as Exhibits P - 1 through P - 8, and no witne sses.

Respondents offered seven exhibits, of which Exhibits R - 1, R - 3,

and R - 7 through R - 10 were admitted. Exhibit R - 1, a deposition of

Dr. Nicholas Namias, was admitted with the caveat that it would

be used only to supplement or explain other evidence, n ot in and

of itself to support any finding of fact. An objection as to the

relevance of the exhibit marked for identification as R - 6, a

composite exhibit containing memoranda submitted to the Probable

Cause Panel, was sustained, and it was not admitted. Respondents

also offered the testimony of Dr. Namias, who was accepted as a

fact witness. When Respondents indicated that they intended to

testify, the hearing was recessed to allow Petitioner to take

their depositions, as during discovery Respondents had asserted

their Fifth Amendment right to remain silent. Following the

depositions, Petitioner ' s motion for a continuance to undertake

additional discovery was granted. Respondents then testified

when the hearing continued on May 26, 2015. Official recog nition

was taken of Florida Administrative Code Rule 64B8 - 8.001 and the

calendar for June 2011. A motion by counsel for Dr. Stahl to

extend the date for submission of proposed recommended orders was

granted, and July 6, 2015, was set as the deadline.

The two - volume final hearing T ranscript was filed on

June 18, 2015. The parties timely filed proposed recommended

orders, which were considered in preparation of this Recommended

Order.

Unless otherwise indicated, citations to the Florida

Statutes or rules of the Florida Administrative Code refer to the

versions in effect on June 23, 2011, the date that violations

were allegedly committed.

FINDING S OF FACT

1. The Department of Health, Board of Medicine, is the

state agency charged with regulating the pract ice of medicine in

the state of Florida, pursuant to section 20.43 and chapters 456

and 458, Florida Statutes.

2. At all times material to this proceeding, Respondents

were licensed physicians within the state, with Dr. Kenneth D.

Stahl having been issue d license number ME79521 and Dr. Eddie

Ward Manning having been issued license number ME110105.

3. Dr. Stahl has been licensed to practice medicine in

Florida since 1999 and in California since 1987. He has never

had disciplinary action taken against e ither license. Dr. Stahl

is board certified by the American College of Surgeons in general

surgery, cardiac and thoracic surgery, and trauma and critical

care surgery. Dr. Stahl ' s address of record is 3040 Paddock

Road, Fort Lauderdale, Florida 33141.

4. Dr. Manning has been licensed to practice medicine in

Florida since May 31, 2011. He has never had disciplinary action

taken against his license. On June 23, 2011, Dr. Manning was a

resident in general surgery. Dr. Manning ' s address of record is

190 0 South Treasure Drive, Apartment 6R, North Bay Village,

Florida 33141.

5. In February 2011, patient C.C., a 52 - year - old female,

was admitted to Jackson Memorial Hospital (JMH) with a diagnosis

of perforated appendicitis. She also had a perirectal absce ss.

Her records indicate that she was treated with percutaneous

drainage and a course of intravenous (IV) antibiotics. She was

discharged on March 4, 2011.

6. On June 22, 2011, patient C.C. presented to the JMH

Emergency Department complaining of 12 hou rs of abdominal pain in

her right lower quadrant with associated nausea and vomiting.

Shortly after her arrival she described her pain to a nurse as

" 10 " on a scale of one to ten.

7. A computed tomography (CT) scan of patient C.C . ' s

abdomen was conducted . The CT report noted that the " the uterus

is surgically absent , " and " the ovaries are not identified. " It

noted that " the perirectal abscess that was drained previously is

no longer visualized " and that the " appendix appears inflamed and

dilated. " No o ther inflamed organs were noted. The

radiologist ' s impression was that the findings of the CT scan

were consistent with non - perforated appendicitis.

8. Patient C.C. ' s pre - operative history listed a " total

abdominal hysterectomy " on May 4, 2005. Patient C.C. ' s prior

surgeries and earlier infections had resulted in extensive scar

tissue in her abdomen. Dr. Stahl later described her anatomy as

" very distorted. "

9. Patient C.C. was scheduled for an emergency

appendectomy, and patient C.C. signed a " Consen t to Operations or

Procedures " form for performance of a laparoscopic appendectomy,

possible open appendectomy, and other indicated procedures.

10. Patient C.C. was taken to surgery at approximately

1:00 a.m. on June 23, 2011. Dr. Stahl was the attendin g

physician, Dr. Manning was the chief or senior resident, and

Dr. Castillo was the junior resident. Notes indicate that Dr.

Stahl was present throughout the critical steps of the procedure.

11. Dr. Stahl had little recollection of the procedure, but

did testify that he recalled:

looking at the video image and seeing a

tremendous amount of infection and

inflammation and I pulled - Î I recall that I

myself went into the computer program and

pulled up the CT scan and put that on the

screen right next to the vi deo screen that ' s

being transmitted from the laparoscope and

put them side - to - side and compared what the

radiologists were pointing to as the cause of

this acute infection and seeing on the

laparoscopic video image that that indeed

matched what I saw in th e CT scan and I said,

well, let ' s dissect this out and get it out

of her so we can fix the problem.

Dr. Stahl further testified that the infected, hollow organ that

was dissected and removed was adherent laterally in the abdomen

and was located where the appendix would normally be. He

recalled that an abscess cavity was broken into and the infected,

" pus - containing " organ that was removed was right in the middle

of this abscess cavity.

12. Dr. Stahl also recalled the residents stapling across

the base o f the infected organ and above the terminal ileum and

the cecum and removing it.

13. The Operative Report was dictated by Dr. Manning after

the surgery and electronically signed by Dr. Stahl on June 23,

2011. The report documents the postoperative diagn osis as " acute

on chronic appendicitis " and describes the dissected and removed

organ as the appendix.

14. Progress notes completed by the nursing staff record

that on June 23, 2011, at 8:00 a.m., patient C.C. " denies pain, "

and that the laparoscopic inci sion is intact.

15. Similar notes indicate that at 5:00 p . m . on June 23,

2011, patient C.C. " tolerated well reg diet " and was waiting for

approval for discharge.

16. Patient C.C. was discharged on June 24, 2011, a little

after noon, in stable condition.

17. On June 24, 2011, the Surgical Pathology Report

indicated that the specimen removed from patient C.C. was not an

appendix, but instead was an ovary and a portion of a fallopian

tube. The report noted that inflammatory cells were seen.

18. Surgery to remove an ovary is an oophorectomy and

surgery to remov e a fallopian tube is a salpingectomy.

19. On Friday, June 24, 2011, Dr. Namias, chief of the

D ivision of A cute C are S urgery, T rauma, and C ritical C are, was

notified by the pathologist of the resu lts of the pathology

report, because Dr. Stahl had left on vacation. Dr. Namias

arranged a meeting with patient C.C. in the clinic the following

Monday. At the meeting, patient C.C. made statements to

Dr. Namias regarding her then - existing physical condi tion,

including that she was not in pain, was tolerating her diet, and

had no complaints. Dr. Namias explained to patient C.C. that her

pain may have been caused by the inflamed ovary and fallopian

tube or may have been caused by appendicitis that resolve d

medically, and she might have appendicitis again. He explained

that her options were to undergo a second operation at that time

and search for the appendix or wait and see if appendicitis

recurred. He advised against the immediate surgery option

becaus e she was " asymptomatic. "

20. The s econd a mended a dministrative c omplaints allege

that Dr. Stahl and Dr. Manning performed a wrong procedure when

they performed an appendectomy which resulted in the removal of

her ovary and a portion of her fallopian tub e.

21. It is clear that Dr. Stahl and Dr. Manning did not

perform an appendectomy on patient C.C. on June 23, 2011.

Dr. Stahl and Dr. Manning instead performed an oophorectomy and

salpingectomy.

22. It was not clearly shown that an appendectomy was the

r ight procedure to treat patient C.C. on June 23, 2011.

23. The Department did convincingly show that patient C.C.

had a history of medical problems and that she had earlier been

diagnosed with appendicitis, had been suffering severe pain for

12 hours wi th associated nausea and vomiting, that she suffered

from an infection in her right lower quadrant, that the initial

diagnosis was acute appendicitis, and that the treatment that was

recommended was an appendectomy.

24. However, substantial evidence aft er the operation

suggests that an appendectomy was not the right procedure. The

infected and inflamed organ that was removed from the site of a

prior abscess was not an appendix. After the procedure, patient

C.C. no longer felt severe pain in her lower r ight quadrant, with

associated nausea and vomiting. She was discharged the following

day and was asymptomatic. It is, in short, likely that the

original diagnosis on June 22, 2011, was incorrect to the extent

that it identified the infected organ as the appendix.

25. The pre - operative diagnosis that patient C.C. ' s severe

pain and vomiting were caused by a severe infection in an organ

in her lower right quadrant was correct. Surgical removal of

that infected organ was the right procedure for patient C.C. If

that inflamed organ was misidentified as the appendix before and

during the operation, that would not fundamentally change the

correctness of the surgical procedure that was performed.

26. The evidence did not clearly show that the wrong

procedure wa s performed. It is more likely that exactly the

right procedure was performed on patient C.C. That is, it is

likely that an oophorectomy and salpingectomy were the right

procedures to address the abdominal pain that caused patient C.C.

to present at the JMH emergency room, but that the right

procedure was incorrectly initially denominated as an

" appendectomy, " as a result of patient history and interpretation

of the CT scan.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has jurisdiction

over the parties and the subject matter of this proceeding

pursuant to sections 120.569 and 120.57(1), Florida Statutes

(2014).

28. A proceeding to suspend, revoke, or impose other

discipline upon a professional license is penal in nature. State

ex rel. Vining v. Fla. Real Estate Comm ' n , 281 So. 2d 487, 491

(Fla. 1973). Petitioner must therefore prove the charges against

Respondents by clear and convincing evidence. Fox v. Dep ' t of

Health , 994 So. 2d 416, 418 (Fla. 1st DCA 2008)(citing Dep ' t of

Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996)).

29. The clear and convincing standard of proof has been

described by the Florida Supreme Court:

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 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 o f fact a

firm belief or conviction, without hesitancy,

as to the truth of the allegations sought to

be established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994)(quoting Slomowitz v.

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

30. D isciplinary st atutes and rules " must always be

construed strictly in favor of the one against whom the penalty

would be imposed and are never to be extended by construction. "

Griffis v. Fish & Wildlife Conserv. Comm ' n , 57 So. 3d 929, 931

(Fla. 1 st DCA 2011); Munch v. D ep ' t of Prof ' l Reg., Div. of Real

Estate , 592 So. 2d 1136 (Fla. 1st DCA 1992).

31. Respondents are charged with performing a wrong

procedure in violation of se ction 456.072(1)(bb), which in

pertinent part creates the following disciplinary violation:

Performing or attempting to perform health

care services on the wrong patient, a wrong -

site procedure, a wrong procedure, or an

unauthorized procedure or a procedure that is

medically unnecessary or otherwise unrelated

to the patient ' s diagnosis or medical

condition.

32. Petitioner showed that the initial diagnosis on June 22,

201 1 , based in part upon patient C.C. ' s history and a CT scan, was

acute appendicitis, and that an emergency appendectomy was

scheduled. It was not clearly shown, however, that the wrong

procedure was performed. 1/ Respondents presented compelling

evidence that the oophorectomy and salpingectomy that they

performed were in fact the right procedures, because these

procedures were those required to remove the infected and inflamed

org ans afflicting patient C.C., and that it was only the earlier

denomination of the required procedure as an appendectomy that was

likely in error.

33. Petitioner failed to prove by clear and convincing

evidence that Respondents performed a wrong procedure in violation

of section 456.072(1)(bb).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Health, Board of

Medicine, enter a final order dismissing the second amended

administrative comp laints against the professional licenses of

Dr. Kenneth D. Stahl and Dr. Eddie Ward Manning.

DONE AND ENTERED this 15th day of July , 2015 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

Administrative Law Judge

Di vision 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 15th day of Ju ly , 2015 .

ENDNOTE

1/ Petitioner emphasizes that Respondents believed that they were

performing an appendectomy throughout the procedure, never

realizing that the inflamed organ they removed was not the

appendix. This misidentification was uncontrovert ed, though

perhaps justifiable given the fact that patient C.C. had suffered

previous infections and her anatomy was "very distorted."

However, misidentification of a specimen does not constitute

proof of the violation charged here, performance of a wrong

procedure. Respondents did not perform the wrong procedure

unless an appendectomy was in fact the correct procedure to be

performed, which the evidence did not clearly show.

COPIES FURNISHED:

Maria Arista - Volsky, Esquire

Miami - Dade County Attorney ' s O ffice

111 Northwest First Street , Suite 2800

Miami, Florida 33128

(eServed)

Monica Felder Rodriguez, Esquire

Dresnick and Rodriguez, P.A.

7301 Wiles Road , Suite 107

Coral Springs, Florida 33067

(eServed)

Corynn Colleen Gasbarro, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

John B. Fricke, Jr., Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

(eServed)

Jay Patrick Reynolds, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

(eServed)

Andre Ourso, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way, Bin C - 03

Tallahas see, Florida 32399

(eServed)

Daniel Hernandez, Interim General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 0 2

Tallahassee, Florida 32399 - 1701

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written ex ceptions 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.