15-006206PL Department Of Health, Board Of Medicine vs. Simion Tsinker, M.D. Status: Closed Recommended Order on Friday, February 12, 2016.

Summary: Respondent committed medical malpractice and failed to maintain medical records justifying the course of treatment of a patient in allowing a trial of labor, after cesarean and with breech presentation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MEDICINE,

Petitioner,

vs. Case No. 15 - 6206PL

SIMION TSINKER, M.D.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On January 4 an d 5, 2016, the final hearing was held in

Ft. Lauderdale, Florida, before F. Scott Boyd, an Administrative

Law Judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Corynn Colleen Gasbarro, Esquire

Michael Jovane Williams, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

For Respondent: Simion Z. Tsinker, M.D., pro se

Suite 207

2500 East Hallandale Beach Boulevard

Hallandale, Florida 33009

STATEMENT OF THE ISSUE S

The issues in this case are whether Respondent violated

section 458.331(1), Florida Statutes, by committing medi cal

malpractice or by failing to keep legible medical records that

justify the course of treatment of a patient, as set forth in the

Amended Administrative Complaint, and , if so, what is the

appropriate sanction.

PRELIMINARY STATEMENT

On November 5, 2015, Petitioner Department of Health

(Department) issued an Amended Administrative Complaint against

Respondent Simion Tsinker, M.D. The two - count complaint related

to Dr. Tsinker ' s provision of medical care to patient D.G., who

delivered a stillborn child. D r. Tsinker disputed allegations of

fact in the complaint and requested a formal hearing.

The final hearing took place on January 4 and 5, 20 1 6 . The

Department offered the testimony of three witnesses: patient

D.G.; Norman Donald Diebel, M.D., accepted as an expert in

obstetrics and gynecology; and Respondent. The Department also

offered Exhibits 1 through 4, which were accepted into evidence

without objection. Respondent testified himself, over objection

from Petitioner, and offered the testimony of two other

witnesses: Corina Fitch, a licensed midwife and registered nurse

(R.N.) who provided prenatal care to patient D.G.; and Radhiya

Walther, the labor and delivery nurse. Respondent also offered

27 exhibits. Exhibits B, C, F, I, L, N, O, P, Q, and U were

admitted without objection. Exhibits A, D, E, G, J, R, S, T, V,

W, and AA were rejected. Exhibit H was withdrawn. Exhibit K was

admitted over objection, subject to the caveat that it was

hearsay and could not alone support a finding of fact, but co uld

only be used to supplement or explain other evidence. As to the

objection that Exhibit K was not authenticated, it was found that

its distinctive characteristics, including markings indicating

that it was printed from records belonging to the Broward General

Medical Center, along with the document ' s contents -- which closely

correlated to the information contained in Exhibits F and I,

previously admitted -- gave sufficient assurance that the document

was genuinely what it purported to be, given the relaxed

requirements for authentication in an administrative hearing.

Exhibits M, X , and Y were admitted over objection, the latter two

only for purposes of recommending an appropriate penalty should a

violation be found. Exhibit Z was not admitted as substanti ve

eviden ce, but solely for impeachment.

The parties were directed to submit proposed recommended

orders within ten days after the t ranscript was filed with the

Clerk of the Division of Administrative Hearings . The two - volume

final hearing T ranscript was filed on January 27, 2016. Both

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 ref er to the

versions in effect in December 2013, at the time the violations

were allegedly committed.

FINDING S OF FACT

1. The Department is the state agency charged with

regulating the practice of medicine pursuant to section 20.43,

chapter 456, and chapter 458, Florida Statutes (2015). The Board

of Medicine is charged with final agency action with respect to

physicians licensed pursuant to chapter 458.

2. At all times material to the complaint, Dr. Tsinker was

a licensed medical doctor within the state of Florida, having

been issued license number ME 39408.

3. Dr. Tsinker ' s address of record is 2500 East Hallandale

Beach Boulevard, Suite 207, Hallandale Beach, Florida 33160.

4. D.G. was pregnant and sought care from Bellymama

Midwifery Services (Bellyma ma Midwifery) . On May 16, 2013, she

signed a Bellymama Midwifery Services VBAC Consent Form. It

generally advised of risks and benefits in attempting a vaginal

birth after having had a cesarean section (VBAC). It included

the following statements, among others:

3. I understand that 70 - 80% of women who

undergo VBAC will successfully deliver

vaginally, and that this percentage increases

in relation to the amount of support women

receive in making the decision to try a VBAC.

* * *

7. The exact f requency of death or permanent

injury to the baby when the uterus ruptures

is uncertain, but has been reported to be as

high as 50% in cases of complete rupture.

* * *

9. Probable contraindications to VBAC

include a classical uterine incision,

m ultiple gestations, and breech.

Each of these statements on the form was initialed by D.G. At

the end of the form was a place for the patient to choose to

either attempt VBAC or elect a repeat cesarean, as well as a

place to explain that choice. After t he form ' s statement " I want

to attempt a VBAC because, " the following entry was made in

script, " I don ' t agree that my previous C - section was necessary

and I disagree w/ interventions for the sake of convenience. "

D.G. ' s printed name and her signature app ear at the bottom of the

form. At hearing, D.G. testified that the cesarean section with

her first daughter had been a difficult experience. The baby had

complications arising from induction which led to the emergency

cesarean. D.G. stated that she wish ed to avoid interventions

unless they were medically necessary.

5. D.G. ' s first prenatal visit was conducted on May 17,

2013, by Corina Fitch, R.N., a licensed midwife. Nurse Fitch has

a degree in midwifery and provides prenatal care and assistance

with home deliveries. She has worked with many patients wanting

to attempt a VBAC.

6. D.G. testified that after it was determined, at about

35 and one - half weeks gestation, that the fetus was in breech

position, she had a discussion with Nurse Fitch as to the best

way to proceed. They decided that they should wait to see if the

baby changed position. Nurse Fitch testified that the baby did

change to vertex position, but then changed again, back to

breech.

7. Nurse Fitch testified that she had advised D.G.

g enerally of the risks and benefits of a vaginal delivery and

that she specifically briefed D.G. about some of the additional

risks of TOLAC 1/ with a breech presentation, but not completely:

Well, I think that I - Î according to what I

told you before, I didn ' t give her all the

risks. I talked about cord prolapse, and I

talked about head entrapment. So,

potentially, no, she did not receive enough

information.

8. At slightly over 40 weeks, D.G. telephoned Nurse Fitch

to advise that her water had broken (spon taneous rupture of

membrane (SROM)). D.G. and Nurse Fitch decided that D.G. should

to go to the hospital to deliver there. Based upon information

that Dr. Tsinker had successfully delivered breech babies

vaginally, D.G. and her husband had decided to see k care from

Dr. Tsinker.

9. Nurse Fitch called Dr. Tsinker. She told Dr. Tsinker

that D.G. was a 37 - year - old pregnant woman at 40 weeks and four

days gestation, that D.G. had previously undergone a cesarean

section with her first child, that the fetus wa s in frank breech

presentation, and that she wished to deliver vaginally if

possible. Nurse Fitch testified that she did not believe that

her conversation with Dr. Tsinker included discussion about

consent forms or whether the patient had been advised of the

risks of attempting a VBAC under all of these circumstances.

However, Nurse Fitch testified that Dr. Tsinker had accepted

patients from her before and that she always provided a copy of

the consent form that her patients signed to him on those

occasio ns, so he was generally familiar with the consent form.

10. Dr. Tsinker agreed to accept D.G. as a patient.

11. Records of Bellymama Midwifery dated December 10, 2013,

indicate:

Received T.C. from pt reporting SROM @

10 a.m., mild cramping. Home visit m ade.

FHT ' s 140 ' s, all VS WNL, baby in breech

presentation, VE done to report findings to

OB for transfer of care, 1 cm, 100%, 0

station. Dr. Tsinker called as pt desires

vaginal birth, he agreed to do delivery, pt

transported to hospital in own car in st able

condition for augmentation and delivery, CF.

12. At a bout 1247 hours on December 10, 2013, D.G.

presented to the Broward Health Medical Center in Fort Lauderdale

with ruptured membrane and fetus in breech position. Her husband

was with her. Based upon communications from Dr. Tsinker, she

was expected, and the hospital had the admissions paperwork ready

for her. D.G. signed a General Consent form at the time of her

admission.

13. At about 1320 hours, a labor assessment was conducted

by nursing sta ff. It indicated, among other things, that the

reason for admission was spontaneous rupture of membrane, that

D.G. was calm, and that her obstetrical history included a

previous cesarean section due to low amniotic fluid at 37 weeks.

Electronic fetal mon itoring begun at 1317 hours showed no

decelerations and active movement. Examination confirmed that

the fetus was in breech presentation. D.G. told the nursing

staff that she wanted to labor without pain medications.

14. The LD - Flowsheet BG indicates th at at about 1334 hours,

Dr. Tsinker was made aware of the examination and that he issued

orders. Dr. Tsinker testified that he was told that the baby was

in frank breech position and that there was only " mild " labor

activity. Dr. Tsinker testified that h e gave the order to start

D.G. on oxytocin ( or Pitocin).

15. A Maternal Child Inter - Disciplinary Patient Education

Record indicates that D.G. was advised of potential side effects

from the use of Pitocin at about 1400 hours. This was the only

entry in th e " Medications " content area. The form contains the

initials " SY " and contains a signature that appears to read

" Simone Young, RN. " The form contains no mention of misoprostol

(or Cytotec).

16. D.G. signed a Vaginal Delivery Consent form at about

1410 h ours on December 10, 2013. The form had Dr. Tsinker ' s name

filled in and , in a typed line which had been added , indicated

that he was authorized to perform " delivery of baby, possible

cesarean section, possible use of forceps or vacuum extractor,

possible episiotomy. " The form itself contained no information

about the risks of vaginal delivery, no information about the

risks of vaginal delivery after cesarean section, and no

information about the risks of vaginal delivery after cesarean

section with a bab y in breech presentation. The only provision

related to risks stated:

The Physician has explained to me, and I

understand, the potential benefits, risks, or

side effects of the procedure, including

potential problems related to recuperation;

the likelihoo d of achieving goals; the

reasonable alternatives to the procedure; and

the relevant risks, benefits, and side

effects related to alternatives, including

the possible result s of not having the

procedure.

The document contains a signature in the " witness " space which

appears to read " S. Young, RN. " It was uncontroverted, however,

that D.G. had not actually talked with the attending physician

about anything before she signed the form. Dr. Tsinker testified

that it is his signature which appears at the bott om of the form

in the " Physician Signature " space.

17. While there was some question about the date

Dr. Tsinker signed the form, this is of no significance. The

form does not show that Dr. Tsinker advised D.G. of the risks of

TOLAC under her circumstance s, and its statement that this had

been done was completely rebutted by all of the other evidence,

including testimony of Dr. Tsinker.

18. Dr. Tsinker never advised D.G. of the particular risks

involved in a vaginal delivery, given her previous cesarean

s ection and breech presentation. He never advised her that a

cesarean section was indicated.

19. Further, he admitted that D.G. never told him she was

unwilling to have a cesarean section. He simply assumed, based

upon the information that had been provi ded to him by others,

that she would decline a cesarean section even if he strongly

recommended it to her. He testified that he came to that

conclusion because:

The patient never, A, asked me any additional

questions that she may have had -- you know I ' m

no t her mind reader -- at time when she was

admitted and I showed up after that, right.

She knew about her right to ask these

questions and to have them ans wered to her

full satisfaction.

When I showed up, she didn ' t have that

opportunity when she came in be cause I wasn ' t

there. But when I showed up, she had all in

the world opportunity, if she was even a

little bit still in the dark or had

reservations or any problems, she had the

opportunity to ask me that and I would have

definitely given her a complete a nswer. She

never mentioned she had regret her opinion or

she wants to stop and revert to a cesarean

section, or to do anything but to continue

the trial of TOLAC.

20. S ome of D.G. ' s medical records, such as the medications

list, suggest that misoprostol , a drug used to make the patient

more receptive to oxytocin, was never ordered in D.G. ' s case .

O ther records suggest that it may have been administered to D.G.

Dr. Tsinker stated in response to interrogatories and testified

at hearing that misoprostol w as not used in D.G. ' s case. As for

entries appearing to indicate that misopros t ol was discontinued,

Dr. Tsinker ' s uncontroverted testimony was that you cannot

" discontinue " misoprostol because it is introduced intravaginally

in the form of a small pill. The only drug that could be

discontinued is oxytocin, which is introduced intravenously.

Dr. Tsinker maintained that any references to " discontinue " are

references to oxytocin, not misoprostol. He further maintained

that misopros t ol is used when the cervi x needs ripening and noted

that , in this case, it was already thinned, with D.G ' s records

showing 100 percent effacement, so that there would have been no

need to order misoprostol.

21. Hospital records of Pharmacy Orders reference that

administration of Pitocin through continuous infusion began at

1514 hours. An accompanying note provided, " 6 milliunit/min =

0.3 mL/min = 18 mL/hr Î Start at 6 milliunit/min. Increase by

3 milliunit Q15 min until contractions are Q2 min apart, 40 sec

in duration & moderat e to strong by palpation Î continuous

infusion (not to exceed 20 MU/min). Hold for non reassuring FHR

pattern or tachysystole. "

22. Dr. Tsinker did not perform an examination of D.G. in

order to determine whether D.G. ' s fetus was in frank, footling,

or s ome other breech position prior to the administration of

Pitocin to D.G. As Dr. Tsinker testified, he had been informed

that the fetus was in frank breech position.

23. There was some conflicting evidence as to whether the

fetus was in frank breech or i n foot breech position. The

Discharge Summary form, dictated by Dr. Siegel and signed by

Dr. Tsinker , indicates that the " patient was delivered vaginally,

foot breech , " and the Newborn Consultation form of Dr. Otero

similarly had a block indicating " foot breech " checked. However,

Nurse Fitch testified that she determined the baby was in frank

breech position earlier, and , consistent with the testimony of

Dr. Tsinker, the Baby ' s Delivery Record indicated " Breech

Position: Frank. " Norman Donald Diebel , M. D. , later testified

that although he could not be sure, he concluded that the baby

was in frank breech position.

24. Dr. Tsinker had never met D.G. in person, or spoken to

D.G. prior to December 10, 2013. He saw her for the first time

around 1635 hours o n that day.

25. At some point , Dr. Tsinker prepared an OB/GYN History

and Physical form. It was dated December 10, 2013, but no time

was given. No pelvic examination was recorded which could be

used to determine when it was prepared. As Dr. Tsinker adm itted,

the notes are untimed and mostly abbreviated. It records the

presentation as " breech " and the membranes as " ruptured. " While

it has a few spaces left blank, it was substantially completed,

albeit with little detail.

26. During D.G. ' s labor, Dr. Tsinker did not dictate or

write any progress notes. Dr. Tsinker maintained that because he

believed everything was progressing well, he did not think it

necessary.

27. At 2031 hours , the flowsheet records Dr. Tsinker at

bedside and indicates that he rev iewed the fetal strip.

28. At 2051 hours , the flowsheet records that Dr. Tsinker

responded to a page and was " notified/updated " and notes that

there were " no new orders. " Nurse Radhiya Walther could not

remember these entries when asked about them, or re call if they

were in fact entered about ten hours after the events they

describe. Dr. Tsinker disputed that he was ever contacted at

this time.

29. At 2130 hours , the flowsheet records that " augmentation

D?c ' d unable to continuously monitor doula and pt instructed to

assist with FHR monitoring while on ball. " Nurse Walther stated

she discontinued oxytocin because the patient was sitting on the

ball , and she was unable to monitor the strip. She admitted in

cross - examination that if oxytocin was disconti nued , the

physician should be notified. She admitted that the records did

not indicate that Dr. Tsinker was notified.

30. The fetal monitor strip indicates noticeable loss of

variability in the trace and some early decelerations. These

were not yet clea r signs of fetal distress, but as Dr. Diebel

testified, would have caused a reasonably prudent

obstetrician/gynecologist to remain with the patient.

31. At 2203 hours , the flowsheet records a vaginal exam

by Dr. Tsinker, with dilatation at 10 cms, and eff acement at

100 percent . Dr. Tsinker requested that D.G. demonstrate how she

was going to push so that he could evaluate the effectiveness of

her pushing. D.G. testified later, " Dr. Tsinker asked me to

push, I attempted to push with all of my might, they were

unproductive pushes. He told me continue to labor, I ' ll come

back later and he left the room. "

32. Dr. Tsinker testified that at that time he directed the

delivery nurse to have D.G. start pushing, but neither D.G. nor

Nurse Walther recall that or der. Additional comments recorded

for this time indicate " Dr. Tsinker at bedside strip reviewed Pt

attempted pushing will labor down. "

33. Nurse Fitch, who had arrived in the labor and delivery

room about 2000 hours, did not recall Dr. Tsinker ever tel ling

D.G. or the labor and delivery nurse that D.G. could " labor

down. " As Nurse Fitch testified:

I don ' t recall that. What I do recall is,

when [Dr. Tsinker] left the room, she was

very distraught because the exam was

extremely painful and she didn ' t ha ve a

sensation to push that was very - Î she tried.

She gave it her best. And she said " Corina,

I don ' t know if I can do this. "

And the nurse - Ï I remember the nurse saying,

" Don ' t worry. There ' s no urgency. We ' ll

just let her wait till she has the urge.

34. Nurse Walther recalled that D.G. stated she did n o t

want to push because she did n o t feel any pressure, which is why

Nurse Walther recorded the " labor down " comment. Nurse Walther

testified she would have called Dr. Tsinker if she had felt this

was contrary to his orders in any way, but she did not, because

she had not been told to make the patient push.

35. D.G. spent much of her labor on the birthing ball, next

to the bed. With D.G. in this position, it was more difficult to

monitor fetal heart rate because the monitoring belts can more

easily shift and not provide clear readings. Also, D.G., who

declined a bedpan, made several trips to the bathroom. Portions

of the fetal monitor strips have missing or sketchy readings.

36. By 2230 hours on De cember 10, 2013, D.G. ' s fetal

monitor had begun to show clear signs of fetal distress,

evidenced by late decelerations.

37. D.G. was never advised by anyone that there were signs

of fetal distress, or told of the advisability of having a

cesarean section in light of that new information.

38. At 2300 hours , under " Interventions, " in D.G. ' s

records, it is stated that " IV Bolus; Discontinue Uterine

Stimulants; O2 On; other Interventions Î Please Annotate

Annotation: Pitocin remains off O2 remains in place . "

39. At 2304 hours , the flowsheet records " MD notified that

patient is on ball and unable to get cont tracing and having

variable decelerations. Pt instructed to return to bed. " Under

care provider status it is recorded, " Responded to Page; Report

Given; In Department; Notified/Updated See SBAR; No New Orders. "

Dr. Tsinker again disputes that he was given this notification.

Nurse Walther stated she could not remember how Dr. Tsinker was

notified. She could not recall if Dr. Tsinker showed up

personally in response, or called. She could not remember if she

repeated the call to him.

40. The flowsheet records a late deceleration at 2316 hours

and another at 2320 hours. As Nurse Walther acknowledged in

cross - examination, repetitive late decelerations ar e dangerous

and constitute " category 3, " the most serious category. Nurse

Walther stated she did not know if she notified Dr. Tsinker after

these decelerations. She later conceded that three late

decelerations constitute an emergency that required that t he

attending physician be notified. Nurse Walther testified she

walked outside to tell the charge nurse, but could n o t recall

what the charge nurse told her in response. There was no

evidence of any actions taken by the charge nurse.

41. Under Additiona l Comments at 2330 hours , it is noted,

" Pt found off monitor in restroom, family at bedside safety

precautions maintained. Pt instructed to return to bed, assisted

to Labor Bed. "

42. Nurse Walther ' s testimony was generally not very clear

or credible and many of the entries in the flowsheet record are

found to be unreliable, especially those concerning events that

supposedly took place after the visit at 2203 hours by

Dr. Tsinker. The stored fetal strip, incomplete in places as it

is, is the best evidence of the progress of labor. It was not

clearly shown that Dr. Tsinker ever reviewed the fetal monitor

strip or was otherwise made aware of the late decelerations

occurring after 2200 hours at any time before his return to the

room shortly before midnight.

43. When Dr. Tsinker returned to the room before midnight,

D.G. and Nurse Fitch were in the bathroom. He asked D.G. to come

out.

44. The patient was returned to bed. At about 0003 hours,

D.G. was placed in foot pedals and partially elevated. Under

Ad ditional Comments , it is noted " audable fhr 147 pt prepped for

pushing Dr. Tsinker. "

45. The Mother ' s Delivery Record prepared by Nurse Walther

indicated that the Neonatal Intensive Care Unit (NICU) was called

at midnight and arrived at 0005 hours.

46. Dr. Tsinker asked D.G. to push. There was some

difficulty in hearing the fetal heart monitor. It was a fairly

quick delivery, taking about 11 minutes or so. On December 11,

2013, around 0014 hours, D.G. delivered a stillborn male infant.

47. NICU recor ded " 0 " for all Apgar score factors at both

one minute and five minutes after birth. Despite multiple

efforts, the NICU was unable to resuscitate the baby. The

efforts of the NICU team caused D.G. to have feelings of panic ;

she testified that she was exp ecting to hear a baby crying and

did not realize until then that there was any issue. After about

20 minutes or half an hour, the NICU team came to D.G. ' s bedside

and informed her that they were unable to resuscitate the baby.

48. A Vaginal Delivery Summ ary form completed by

Dr. Tsinker and dated December 11 , 2013, at 1214 hours, briefly

described the placenta, blood loss, laceration , and suturing

after delivery, as well as the failure of the NICU team to

resuscitate the stillborn child, but it said almos t nothing of

the labor and delivery itself, noting only that Dr. Tsinker

" assisted breech delivery " and that the Apgar scores were " 0 " at

one and five minutes. There was no evidence of any other

delivery note prepared by Dr. Tsinker.

49. Dr. Tsinker did not talk with D.G. after the delivery,

or at any time on December 11, 201 3 , although D.G. had been

requesting to speak with him to find out what had happened.

50. On the morning of December 12, 201 3 , Dr. Tsinker came

to D.G. ' s hospital room, but D.G. was in the bathroom.

Dr. Tsinker told D.G. ' s husband that he would return. D.G. came

out of the bathroom and waited for Dr. Tsinker to return. When

he did not, D.G. went to the nurse ' s station and again asked to

see him. When D.G. learned that he was no lon ger in the ward,

she asked for her discharge papers. Dr. Tsinker appeared , and

they returned to D.G. ' s room.

51. In the brief discussion about the course of labor and

delivery which followed, D.G. believed that Dr. Tsinker was

insensitive and blamed her for the outcome.

52. After receiving further care not relevant to this case,

D.G. was discharged from Broward General Medical Center at

1220 hours on December 12, 2013.

Standards

53. Dr. Diebel is an obstetrician/gynecologist who has been

licensed in Flo rida since 1977. He is board - certified by the

American Board of Obstetrics and Gynecology and was an examiner

for the board for 18 years. He has previously served as an

expert witness in administrative procee dings for the state of

Florida.

54. Dr. Diebe l is an expert in obstetrics/gynecology and

has knowledge, skill, experience, training, and education in the

prevailing professional standard of care recognized as acceptable

and appropriate by reasonably prudent obstetricians/gynecologists

in Florida.

55. Dr. Diebel reviewed D.G. ' s medical records from Broward

Health, the fetal monitor tracings, the midwife records, the

autopsy report, and the Amended Administrative Complaint filed in

this case.

56. As Dr. Diebel testified, a vaginal delivery after

cesar ean section has some risks, but they are still performed. A

vaginal delivery with breech presentation has some risks, but

they are performed. However, he testified that to attempt a VBAC

with a breech presentation was below the standard of care

recognize d as acceptable and appropriate by reasonably prudent

obstetricians/gynecol o gists in Florida. As Dr. Diebel testified,

you have two risky procedures , and " nobody would recommend " doing

TOLAC and breech together. While Dr. Diebel acknowledged that

this st andard of care was not expressly set forth in American

Congress of Obstetricians and Gynecologists ' Practice Bulletin

Number 115, August 2010, entitled " Vaginal Birth After Previous

Cesarean Delivery, " Dr. Diebel ' s testimony was clear and

convincing and is credited. 2/

57. Dr. Diebel credibly testified that it was below the

standard of care to place the burden on the patient to " ask "

about a cesarean section. The standard of care in labor and

delivery requires that there be an agreement between the

physici an and the patient, as a part of which the patient is

clearly presented with the potential hazards of what she is about

to undertake. Dr. Tsinker should have discussed the potential

benefits and risks of D.G. undergoing TOLAC, as well as the

option to ele ct a repeat cesarean delivery, with D.G. as soon as

possible after her arrival at the hospital. As Dr. Diebel

testified, Dr. Tsinker should have advised D.G. that it was a

very risky procedure for D.G. to undergo TOLAC because the baby

was in breech posit ion, that this is not currently an acceptable

procedure, and that she should have a cesarean section. The

standard of care required Dr. Tsinker to advise D.G. of the

additional risks involved in attempting a VBAC due to her breech

presentation. It was Dr . Tsinker ' s responsibility to fully

explain those risks, recommend a cesarean section, and

affirmatively ascertain and document her response.

58. Dr. Diebel testified that if a patient refused to

follow the physician ' s recommendations or was uncooperative in

this regard:

You would document it profusely if a patient -

Î you know, I explain to the patient that this

is what ' s happening, this is what can happen,

this is what the effects can be. I explained

all that, she expressed understanding. Yeah,

if only to cover myself, I want it to be very

clear that we had this discussion and still

her decision was otherwise.

59. Dr. Tsinker ' s testimony that he believed that others

had previously had discussions with D.G. about these risks and

benefits did not satisfy t his standard of care. Dr. Tsinker

failed to have the appropriate discussions with D.G. or to

document them, as he was required to do.

60. Dr. Diebel ' s testimony that misoprostol should not be

used to induce labor in patients who have had an earlier cesar ean

delivery was unrefuted and is accepted.

61. Dr. Diebel also testified that the ordering of Pitocin

for D.G. violated the standard of care. This conclusion was

contested, however, and the basis for Dr. Diebel ' s conclusion was

not carefully explained. While Dr. Diebel did describe risks of

uterine rupture , as well as risks of causing contractions to be

too close together, it was not explained in what way these risks

were unique or increased with a TOLAC with breech presentation.

Dr. Diebel testified:

Q. Are there any risks associated with

administering Pitocin to a patient attempting

trial of labor after cesarean with breech

presentation?

A. Well, you won ' t find papers devoted to

that particular thing, because it is not

done. It ' s not - Î breeches are not allowed to

have a TOLAC.

* * *

Q. Why would it not be done? Why would

Pitocin not be given in that situation?

A. Well, because you wouldn ' t allow the

situation to happen to begin with.

Q. Right.

A. Where you ' ve got a breech and a pre vious

cesarean section. So there ' d be no reason to

give Pitocin.

This explanation does n o t provide a logical basis to support a

separate charge of medical malpractice. Accepting Dr. Diebel ' s

position that simply undertaking a TOLAC with breech constitut es

medical malpractice, it does not follow that every other related ,

but distinct , element in the labor and delivery procedure would

necessarily constitute a separate violation of the standard of

care.

62. Dr. Diebel acknowledged that it was appropriate t o use

a little Pitocin in a (non - breech) TOLAC where the patient is not

having any contractions, but that it is run for only a short

time, and then once the patient is in labor, discontinued.

Dr. Diebel then contrasted that limited use with what was done i n

this case:

In this situation, it was continued all day,

even though she was having, in some place on

the tracing, contractions a minute to a

minute and a half apart, which are too close

together.

The basis of Dr. Diebel ' s concern with the use of Pitocin in this

case thus appears to be that it was used for too long. However,

that was not the charge in this case. The evidence was not clear

or convincing that initially ordering Pitocin for D.G., as

opposed to continuing its administration for too long,

co nstituted medical malpractice.

63. Dr. Diebel ' s testimony that D.G. ' s admission history

and physical was inadequately documented was not clear and

convincing. He noted that the form was not properly timed, but

the form itself appeared to be substantially completed, and

Dr. Diebel did not sufficiently elaborate on what additional

information should have been present.

64. Dr. Diebel testified that the standard of care requires

that a physician keep progress notes during the labor of their

patients. Under cross - examination, Dr. Diebel admitted that as

long as everything was going well, there was no need to write a

progress note. However, he also testified that the fetal monitor

indicated that after 1700 hours , everything was not going well in

D.G. ' s case. There were missed signals on the monitor, a loss

of variability in the trace, and some decelerations before

2200 hours. It was undisputed that Dr. Tsinker failed to keep

any progress notes on D.G. ' s labor. Under these circumstances,

Dr. Diebel ' s testimo ny that Dr. Tsinker failed to maintain

adequate progress notes was clear and convincing.

65. Dr. Diebel also credibly testified that Dr. Tsinker ' s

delivery note describing what took place during D.G. ' s delivery

was inadequate. The stillborn child created a duty for

Dr. Tsinker to fully document what took place during the course

of labor and delivery, with careful attention to documentation of

any possible factors that it might appear in retrospect to have

contributed to the tragic outcome. Dr. Tsinker ' s Vaginal

Delivery Summary, while briefly describing the placenta, blood

loss, laceration , and suturing after delivery, as well as the

failure of the NICU team to resuscitate the stillborn child, says

almost nothing of the labor and delivery itself, noting o nly that

Dr. Tsinker " assisted breech delivery " and that the baby was

stillborn. This was not sufficient under the circumstances.

66. Dr. Tsinker was charged with violating the standard of

care in performing as an obstetrician/gynecologist during D.G. ' s

labor and delivery , and he failed to keep medical records

reflecting his participation in the treatment of D.G. during that

time.

Prior Discipline

67. No evidence was introduced to show that Dr. Tsinker has

had any prior discipline imposed upon his licens e.

68. Dr. Tsinker was not under any legal restraints on

December 10, 2013.

69. It was not shown that Dr. Tsinker received any special

pecuniary benefit or self - gain from his actions on December 10,

2013.

70. It was not shown that the actions of Dr. Tsinker on

December 10, 2013, involved any trade or sale of controlled

substances.

71. On August 25, 2014, Dr. Tsinker completed an

independent self - study course in Advanced Electronic Fetal

Monitoring offered by PESI, Inc., consisting of 6.25 hours of

i nstructional content.

72. On April 6, 2015, Dr. Tsinker completed medical

continuing education courses Documentation 154 and Documentation

155, consisting of one hour and two hours of instructional

content, respectively, offered by OnlineContinuingEd, L LC.

CONCLUSIONS OF LAW

73. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

sections 120.569 and 120.57(1), Florida Statutes (2015).

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

discipline upon a 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

Respondent 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)).

75. 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 b e of such

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

allegat ions sought to be established.

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

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

76. Disciplinary statutes 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. C omm ' n , 57 So. 3d 929, 931

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

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

77. Petitioner charged Respondent under section 458.331,

Florida Statutes, which provided, in relevant part:

(1) The f ollowing acts 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 extende r

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 course of

treatment of the patient, including, but not

lim ited to, patient histories; examination

results; test results; records of drugs

prescribed, dispensed, or administered; and

reports of cons ultations and

hospitalizations.

* * *

(t)1. Committing medical malpractice as

defined in s. 456.50. The b oard shall give

great weight to the provisions of s. 766.102

when enforcing this paragraph. Medical

malpractice shall not be construed to require

more than one instance, event, or act.

C ount I

78. Count I of the Amended Administrative Complaint alleged

that Respondent committed medical malpractice. Section

456.50(1)(g) , Florida Statutes, defined " medical malpractice " in

relevant part 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.

79. Section 766.102(1), Florida Statutes, provided in part

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 releva nt surrounding

circumstances, is recognized as acceptable and appropriate by

reasonably prudent similar health care providers.

80. Petitioner first alleged that Respondent committed

medical malpractice by failing to advise D.G. that she was not a

candidat e for VBAC due to her breech presentation and previous

cesarean. Dr. Diebel testified that the applicable standard of

care required that the obstetrician advise a patient with a prior

cesarean and a breech presentation who desired to undergo TOLAC

that it was not currently an acceptable procedure under those

circumstances and that she should have a cesarean section.

Dr. Diebel ' s expert testimony was credited. Petitioner proved

this allegation.

81. Even had TOLAC not been contraindicated with breech

prese ntation, the standard of care certainly required that

Respondent advise D.G. of the additional risks involved in

attempting a VBAC due to her breech presentation. It was

uncontroverted that Respondent did not do so. This was the basis

for the second char ge of medical malpractice. Respondent ' s

argument that he had no duty to advise D.G. of these risks under

the circumstances here, because he believed that D.G. was already

aware of the risks, and she had not asked him any questions is

rejected, consistent with the testimony of Dr. Diebel.

Petitioner also proved this charge.

82. Petitioner alleges, in a related third charge, that

Respondent committed medical malpractice by allowing D.G. to

undergo a trial of labor with a history of cesarean and a breech

p resentation. If a patient, fully advised by her physician and

despite his contrary advice, nevertheless insisted upon TOLAC, it

would not constitute medical malpractice for a doctor to fully

document those steps and then proceed, as Dr. Diebel testified.

Under the facts shown here, however, it constituted medical

malpractice to allow D.G., with her prior cesarean and breech

presentation, to undergo a trial of labor without first advising

against that course or even specifically informing her of the

additi onal risks.

83. The Amended Administrative Complaint next charged that

Respondent committed medical malpractice by ordering misoprostol

and Pitocin for D.G. to stimulate her labor when both were

contraindicated given D.G. ' s presentation and previous cesar ean.

84. Petitioner showed that misoprostol was contraindicated,

but failed to clearly show that it was actually used. On the

other hand, Petitioner showed that Pitocin was administered, but

failed to clearly show that ordering it (as opposed to continui ng

it too long) was contraindicated. As both of these elements were

required to show medical malpractice with respect to each drug,

Petitioner failed to show by clear and convincing evidence that

Respondent committed medical malpractice through the

admini stration of these drugs.

85. The complaint charged that Respondent committed medical

malpractice by failing to review and/or appropriately interpret

the fetal monitor when signs of fetal distress began. The exact

wording of this allegation must be consid ered. It charges that

Respondent failed to meet a standard of care when signs of fetal

distress began. The evidence did not clearly show, however, when

Respondent became aware, or should have been aware, of the

beginning of the signs of fetal distress. Dr. Diebel testified:

Q. I guess my question to you would be, at

what point did it become apparent to you that

there was some fetal distress that was

starting?

A. Okay, Bear in mind that you ' re going to

see little harbingers like that along the way

befo re you see something major.

Page 57, 58, 59 I can ' t tell because its - Î she

may have been off for a while. Well, look at

page 62.

Dr. Tsinker: What time?

The Witness: This is now about 22:07 or

something; a couple of large decelerations.

Then these are now - Î this is a category 3

strip. Page 63 right at the beginning, there

is another one. That ' s a late -- you see how

base of it - Î

Thus the earliest time that signs of fetal distress began,

according to Dr. Diebel ' s testimony, was after 2207 hours. The se

signs therefore appeared after Respondent reviewed the fetal

monitoring strip at 2203 hours.

86. While Dr. Diebel testified at one point that the

tracing showed decreased variability shortly after 2000 hours,

and at another that these earlier tracings were not completely

normal, he agreed during cross - examination that he would not do a

cesarean section at that time. 3/ Dr. Diebel also testified that

during the period prior to the examination at 2203 hours, the

fetal strip would have caused him to " want to stay by the

patient ' s side. " However, taking Dr. Diebel ' s testimony as a

whole, these earlier tracings cannot be said to constitute " fetal

distress " as this charge specifies.

87. It also was not clearly shown that after 2203 hours,

when signs of fetal distress began, that Respondent was notified

by Nurse Walther that this was happening, nor was it clear how he

would otherwise have become aware of signs of fetal distress.

Dr. Diebel ' s testimony did not clearly and convincingly show what

the standard of care requires when signs of fetal distress begin

but the physician is unaware of them. It was not clearly shown

that Respondent ' s " failure to review and/or appropriately

interpret the fetal monitor " constituted medical malpractice

under these circumstanc es.

88. Similarly, the complaint charged that Respondent

committed medical malpractice by allowing D.G. to continue to

labor when the fetal monitor began showing signs of fetal

distress. Again, Dr. Diebel ' s testimony did not clearly and

convincingly show what the standard of care requires when signs

of fetal distress begin but the physician is unaware of them. It

was not clearly shown that Respondent ' s allowing D.G. to continue

to labor at this point constituted medical malpract ice under

these circumstan ces.

89. Respondent argued that he was unaware of the signs of

fetal distress on the monitor and claimed that the labor and

delivery nurse failed in her responsibility to notify him. The

testimony of Nurse Walther that he had been notified was not

clear or convincing. Petitioner did not prove these last two

charges of medical malpractice.

90. Petitioner established by clear and convincing evidence

that Respondent committed medical malpractice in violation of

section 458.331(1)(t)1., as charged in the Amended Administrative

Complaint.

Count II

91. Petitioner alleged in Count II that Respondent failed

to keep legible medical records. Petitioner first charges that

Respondent failed to document a proper admission history and

physical for D.G. While th e admission history and physical form

was not properly timed, almost all of the blocks were completed

with the basic information that was relevant. It was not clearly

or convincingly shown that Respondent failed to document the

admission history and physi cal.

92. The complaint next alleges that Respondent failed to

dictate or write any progress notes during the course of D.G. ' s

labor. Dr. Diebel ' s testimony that a physician must keep

progress notes during the labor of their patients, except when

everyth ing was going well, was clear. It was also clear that

everything went well in D.G. ' s labor only until about 1700 hours,

when the first signs, such as loss of variability in the trace,

began to indicate that things were deteriorating. In failing to

make a ny progress notes, Respondent violated the requirement to

maintain records that justified the course of treatment of D.G.

93. Finally, the complaint charged that Respondent failed

to dictate or write a delivery note describing what took place

during D.G. ' s delivery. Dr. Diebel ' s testimony that Respondent ' s

delivery note was not sufficient under the tragic circumstances

was clear and convincing.

94. Petitioner showed by clear and convincing evidence that

Respondent failed to keep legible and accurate medi cal records

that justified the course of treatment of D.G., including

progress notes on D.G. ' s labor and a sufficient delivery note, in

violation of section 458.331(1)(m), as charged in the Amended

Administrative Complaint.

Penalty

95. Petitioner imposes penalties upon licensees consistent

with disciplinary guidelines prescribed by rule. See Parrot

Heads, Inc. v. Dep ' t of Bus. & Prof ' l Reg. , 741 So. 2d 1231,

1233 - 34 (Fla. 5th DCA 1999).

96. Penalties in a licensure discipline case may not exceed

those in effect at the time the violations were committed.

Willner v. Dep ' t of Prof. Reg., Bd. of Med . , 563 So. 2d 805, 806

(Fla. 1st DCA 1990), rev. denied , 576 So. 2d 295 (Fla. 1991). At

the time of the incidents, Florida Administrative Code Rule 64B8 -

8.001( 2)(m) provided that for a first - time offender failing to

keep required medical records, as described in section

458.331(1)(m), the prescribed penalty range was " [f]rom a

reprimand to denial or two (2) years suspension followed by

probation and an administr ative fine from $1,000.00 to

$10,000.00. "

97. Rule 64B8 - 8.001(2)(t) provided that for a first - time

offender committing medical malpractice, as described in section

458.331(1)(t), the prescribed penalty range was " [f]rom one (1)

year probation to revocat ion or denial, and an administrative

fine from $1,000.00 to $10,000.00. "

98. Rule 64B8 - 8.001(3) provided that, in applying the

penalty guidelines, the following aggravating and mitigating

circumstances should also be taken into account:

(3) Aggravating a nd Mitigating

Circumstances. Based upon consideration of

aggravating and mitigating factors present in

an individual case, the Board may deviate

from the penalties recommended above. The

Board shall consider as aggravating or

mitigating factors the follow ing:

(a) Exposure of patient or public to injury

or potential injury, physical or otherwise:

none, slight, severe, or death;

(b) Legal status at the time of the offense:

no restraints, or legal constraints;

(c) The number of counts or separate

offens es established;

(d) The number of times the same offense or

offenses have previously been committed by

the licensee or applicant;

(e) The disciplinary history of the

applicant or licensee in any jurisdiction and

the length of practice;

(f) Pecuniary b enefit or self - gain inuring

to the applicant or licensee;

(g) The involvement in any violation of

Section 458.331, F.S., of the provision of

controlled substances for trade, barter or

sale, by a licensee. In such cases, the

Board will deviate from the p enalties

recommended above and impose suspension or

revocation of licensure.

(h) Where a licensee has been charged with

violating the standard of care pursuant to

Section 458.331(1)(t), F.S., but the

licensee, who is also the records owner

pursuant to Se ction 456.057(1), F.S., fails

to keep and/or produce the medical records.

(i) Any other relevant mitigating factors.

99. A significant aggravating factor was that Respondent ' s

actions exposed the unborn child to severe injury or death. In

addition, un der paragraph (h), Respondent here was charged with

violating the standard of care and it was found that he failed to

keep adequate medical records. 4/

100. On the other hand, Respondent was not under any legal

restraints at the time of the incident. Ther e was no evidence of

any prior disciplinary history in any jurisdiction over a long

and successful career. Respondent received no special pecuniary

benefit or self - gain from his actions. The incidents did not

involve any trade or sale of controlled subst ances. Respondent

voluntarily undertook continuing medical education in relevant

areas.

101. The evidence also suggests that a major contributing

factor to the tragic outcome in this case was that Respondent may

not have been not notified of the clear si gns of fetal distress

occurring after 2230 hours. While this does not serve as a legal

defense to the proven charges, it is relevant in determining an

appropriate penalty.

102. Taken as a whole, the evidence presented does not

warrant deviation in penal ty from the wide range of discipline

contained within the rule.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that a final order be entered by the

Board of Medicine f inding that Dr. Simion Tsinker violat ed

sections 458.331(1)(m) and (t), Florida Statutes (2013), as

charged in the Amended Administrative Complaint; suspending his

license to practice medicine for a period of four months;

imposing an administrative fine in the amount of $20,000; and

requiring that he complete continuing medical education as deemed

appropriate by the Board.

DONE AND ENTERED this 12th day of February , 2016 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

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 12th day of February , 2016 .

ENDNOTE S

1/ The acronyms TOLAC (trial of labor after cesarean) and VBAC

(vaginal birth after cesarean) are used in this O rder

interchangeably, although testimony suggested that technically

the term VBAC refers to a successful vaginal birth.

2/ Practice Bulletin 115, although offered as Respondent ' s

Exhibit D, was rejected as substantive evidence; there was no

other independent evidence admitted that it could supplement or

explain.

3/ It is not clear that this testimony was completely consiste nt

with Dr. Diebel ' s earlier testimony that a cesarean section

should have been performed as soon as D.G. was admitted. His

later testimony is interpreted to mean that at that time the

fetal strip was not giving any indications of fetal distress that

inde pendently warranted intervention by cesarean.

4/ Compare Public Health Trust of Dade County v. Valcin , 507 So.

2d 596 (Fla. 1987), in which the Florida Supreme Court held that

the unavailability of medical records due to an adverse party ' s

negligence may create a shifting of the burden of proof in a

civil medical malpractice case.

COPIES FURNISHED:

Corynn Colleen Gasbarro, Esquire

Michael Jovane Williams, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee , Florida 32399

(eServed)

Simion Z. Tsinker , M.D.

Suite 207

2500 East Hallandale Beach Boulevard

Hallandale, Florida 33009

(eServed)

Nichole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 170 1

(eServed)

Andre Ourso, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way, Bin C - 03

Tallahassee, Florida 32399 - 3253

(eServed)

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.