16-004346PL Department Of Health, Board Of Medicine vs. Babak Saadatmand, M.D. Status: Closed Recommended Order on Monday, December 5, 2016.

Summary: Petitioner did not establish that Respondent was negligent or had inadequate records with regard to his treatment of a patient in the emergency room. Recommend dismissal of Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MEDICINE,

Petitioner,

vs. Case No. 16 - 4346PL

BABAK SAADATMAND, M.D.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On October 4, 2016, Administrative Law Judge Lisa Shearer

Nelson of the Division of Administrative Hearings (DOAH)

conducted a hearing in this case pursuant to section 120.57(1),

Florida Statutes (2016), in Tallahassee, Florida.

APPEARANCES

For Petitioner: Michael E. Morris, Esquire

Prosecution Services Unit

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 33299 - 3265

For Respondent: Brian A. Newman, Esquire

Pennington, P.A.

215 South Monroe Stree t, Second Floor

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

The issue to be determined in this proceeding is whether

Respondent, Babak Saadatmand, M.D. (Respondent or

Dr. Saadatmand), has violated section 458.331(1) ( m) and (t),

Florida Statut es (2013), as alleged in the Administrative

Complaint.

PRELIMINARY STATEMENT

On June 19, 2015, Petitioner, Department of Health

(Petitioner or the Department), filed an Administrative Complaint

against Respondent, alleging that he violated section

458.331( 1)(m) and (t) in his care and treatment of patient R.D.

in the emergency room at Parrish Medical Center. On August 5,

2015, Respondent disputed the allegations in the Administrative

Complaint and requested a hearing pursuant to section 120.57(1) .

On July 28, 2016, the matter was referred to DOAH for assignment

of an administrative law judge.

On August 4, 2016, DOAH issued a Notice of Hearing and

schedul ed the case for October 3 and 4, 2016. Discovery was

undertaken by the parties, and on September 16, 20 16, Petitioner

moved to continue the hearing based upon the unavailability of

its expert witness. Respondent opposed the continuance,

suggest ing that a video deposition of the expert witness could be

used in lieu of live testimony, and the motion for cont inuance

was denied.

The parties filed a Joint Pre - h earing Stipulation on

September 26, 2016, contain ing factual stipulations that have

been incorporated into the findings of fact below. On

September 29, 2016, Petitioner moved to view the videotapes of

two of its witnesses Ó depositions during the formal hearing. A

motion hearing was conducted on September 30, 2016, after which

it was agreed that , rather than use hearing time for viewing the

depositions, commencement of the hearing would be delayed until

Oc tober 4, 2016 . D uring the time originally scheduled for

hearing on October 3, the administrative law judge would watch

the video deposition of Petitioner Ó s expert witness. Consistent

with this agreement, t he hearing then began on October 4, 2016,

and at that time Joint Exhibit 1 was admitted int o evidence.

Petitioner Ó s Exhibit s 1 through 5 were admitted into evidence,

which included the depositions of J.G. ; C.D. ; Annie L. Akkara,

M.D.; Babak Saadatmand, M.D. ; and David J. Orban, M.D. ; after

which the Dep artment rested. Respondent testified on his own

behalf and presented the expert testimony of David J. Orban,

M.D., and Respondent Ó s Exhibits 1 and 2 were admitted into

evidence.

The one - volume Transcript of the proceedings was filed with

DOAH on October 1 9, 2016. Both parties filed Proposed

Recommended Orders on October 31, 2016, which have been carefully

considered in the preparation of this Recommended Order. All

references to Florida Statutes are to the codification in effect

at the time of the incide nt giving rise to this proceeding,

unless otherwise indicated.

F INDING S OF FACT

Based upon the testimony and documentary evidence presented

at hearing, the demeanor and credibility of the witnesses, and

the entire record of this proceeding, the following findings of

fact are made :

The Parties

1. Petitioner, the Department of Health, is the agency

charged with the regulation of the practice of medicine pursuant

to chapters 20, 456, and 458, Florida Statutes.

2. Respondent, Babak Saa d atmand, M.D., is a me dical doctor

licensed by the Board of Medicine . Dr. Saa d atmand hold s Florida

license number ME 114656.

3. Respondent graduated from the University of Maryland ,

College of Medicine , in 1988 , and completed his residency at Case

Western Reserve. He then co mpleted a residency in emergency

medicine at Cook County Hospital in Chicago, Illinois .

4. Respondent was board - certified in internal medicine, but

no longer holds that certification because at the time it was due

for renewal , he was no longer eligible be cause his practice was

devoted to emergency medicine as opposed to internal medicine.

He remains board - certified in emergency medicine.

5. Respondent has held positions that required him to

su pervise residents and give lectures at Yale University, New

Yo rk College of Medicine, and Indiana University. Dr. Saadatmand

chose to practice emergency medicine as a traveling physician for

the last three years , because of the financial benefits available

by doing so while he gained additional experience in emergen cy

medicine. However, h e has since or now accepted a position as

the a ssistant p rogram d irector of the emergency medicine

residency program at Jackson Memorial Hospital in Miami, Florida,

where his job responsibilities will include the supervision of

resi dents.

6. Dr. Saadatmand holds a medical license in several other

states in addition to Florida, and has not been disciplined in

an y state where he is licensed.

Dr. Saadatmand Ó s Treatment of R.D.

7. In June and July of 2014, Respondent was working as a

traveling physician at Parrish Medical Center in Titusville,

Florida. While most of his assignments in various emergency

facilities have been six months long , the assignment at Parrish

Medical Center was for approximately one month.

8. Respondent trea ted patient R.D. on June 27, 2014, at

Parrish Medical Center emergency room. R.D. was accompanied by

his wife, C.D.

9. R.D. was a 52 - year - old male when he presented to Parrish

Medical Center. He had a history of T - cell lymphoma and had been

treated for his cancer through the Space Coast Cancer Center.

Just days before his presentation to the emergency room on

June 27, 2014, he had been cleared to return to his place of

employment . However, on June 27, 2014, R.D. Ó s supervisor called

R.D. Ó s wife, C.D., a nd asked her to come get R.D. as he was too

ill to be at work.

10 . R.D. arrived at Parrish Medical Center in the early

afternoon, and was triaged by a nurse at approximately 2:1 3 p.m.

The notes from the triage nurse Ó s assessment recorded, among

other thi ngs, R.D. Ó s vital signs upon arrival; his chief

complaint, including its duration and intensity; a brief medical

history; a list of his current medications; and a drug/alcohol

use history.

1 1 . Registered N urse Sharon Craddock was the emergency room

nurse who completed the initial assessment, or triage assessment,

of R.D. Ó s condition. According to her triage notes in the

Parrish Medical Center records, R.D. Ó s chief complaint upon

arrival was constipation, which was described as constipation for

three days, with bilateral abdominal pain. The pain was

described as aching, pressure, shooting, and throbbing, and

R.D. Ó s pain level was reported in Ms. Craddock Ó s notes as being

an eight on a ten - point scale. Her description of his abdomen

was Ð soft, non - tender, round, and obese. Ñ Nurses are directed to

record the pain level reported by the patient, and not to alter

the pain level based on the nurse Ó s observation. 1/

1 2 . R.D. Ó s vital signs were taken upon his arrival at

Parrish Medical Center and were recorded in the electronic

medical records as follows: temperature, 98.4F; pulse, 127H;

respiration, 20; blood pressure, 120/70; and pulse oximeter, 95.

The only abnormal reading reflected in R.D. Ó s vital signs was his

pulse , which was above 100, considered to be t he upper limit of

normal.

1 3 . R.D. reported that he had a medical history which

included T - cell lymphoma and that he did not smoke or drink. His

current medications were listed as aspirin, Zyrtec, Amaryl,

Metformin, Prilosec, Percocet, Pr a vastatin, and a multivitamin.

The Percocet dosage was listed as one tablet, three times daily,

as needed for pain.

1 4 . Ms. Craddock also recorded a nursing note for R.D. at

3:37 p.m. , and she was in the room when Respondent first went in

to see R.D. Ms. Craddock Ó s n ursing note indicates, Ð Pt with a hx

of stomach CA with a recent Ò clean bill of health Ó presents with

ABD pain and constipation. Occasionally takes Percocet for pain.

Wife at BS. Pt. sleepy, states he normally takes a nap this time

of day. Pending MD e val with orders. Ñ

1 5 . The Parrish Medical Center chart documents that R.D.

was calm, cooperative, and asleep at 15:37 hours (3:37 p.m.) .

This presentation is generally inconsistent with a patient who is

in severe abdominal pain.

1 6 . Dr. Saadatmand saw R .D. at approximately 3:56 p.m.

Consistent with the custom at Parrish Medical Center, he worked

with a scribe who took Respondent Ó s dictation for notes during

his visit with the patient , and then loaded those notes into the

electronic medical record. Resp ondent would then have the

opportunity to review the notes as transcribed and direct the

scribe to make any necessary changes.

1 7 . Dr. Saadatmand Ó s notes indicate that R.D. presented

with abdominal pain, and was experiencing moderate pain that was

constan t with cramping. The description of R.D. Ó s pain as

moderate was based upon Dr. Saadatmand Ó s observation of R.D. The

chief complaint listed was constipation.

1 8 . Dr. Saadatmand took a history from R.D., who reported

that he had been diagnosed with gastri c lymphoma in 2013, and was

treated with radiation and chemotherapy. R.D. and his wife,

C.D., reported to Respondent that they feared his cancer might be

returning, as his current symptoms were similar to those he

experienced when his cancer was first dia gnosed. He had returned

to Space Coast Cancer Center for some addition al screening two to

three weeks before the emergency room visit, which included a CT

of the abdomen and an upper and lower endoscopy. R.D. and his

wife both believed that the results o f the screening were normal.

1 9 . Respondent recorded this conversation in the electronic

medical record as Ð [R.D. ] had a recent follow up with

Dr. Rylander and had normal EGD and colonoscopy. [R.D.] had

recent CT scan with cancer center. Ñ

20 . Space Coas t Cancer Center does not use Parrish Medical

Center to perform its CT scans or other testing , so the results

of the recent CT scan were not available for Respondent to view.

Respondent believed that R.D. and C.D. had followed the

directions of R.D. Ó s onco logists , and R.D. had been a compliant

patient.

2 1 . Respondent asked R.D. about his use of Percocet. He

did not ask how much he was taking, but how often and whether the

use had changed. He considered the answer to this question to be

important, becau se a change in the use c ould indicate a change in

R.D. Ó s pain intensity.

2 2 . R.D. did not report any change in the amount that he

was taking, which was generally an Ð every other day thing for

him. Ñ Respondent testified that, given that the type of Perc ocet

that R.D. was prescribed was an extra - strength as opposed to a

standard version of Percocet, it was highly likely that R.D.

would suffer from opioid - induced constipation. R.D. reported to

Respondent that he had not attempted any laxatives.

2 3 . R.D . also denied having any nausea or surgical history.

The lack of a surgical history is significant because patients

with a recent surgical history and abdominal pain may be

experiencing complications related to the surgery , which would

account for the pat ient Ó s pain.

2 4 . There is no reference to R.D. Ó s diabetes in either the

nursing triage notes or Dr. Saadatmand Ó s notes. The only

reference in the past medical history is the report of cancer.

The list of medications R.D. was taking at home includes

Metf ormin HCI. No evidence was presented to establish whether

Metformin is a drug prescribed only for diabetes or whether it is

an accepted treatment for other conditions. Moreover, there is

no evidence presented to establish how Respondent was to know

that R.D. was diabetic if R.D. did not report the condition.

2 5 . In addition to taking R.D. Ó s medical history,

Respondent performed a review of systems and a physical

examination, including palpation of his abdomen. In his chart,

the electronic medical reco rd states under Ð review of systems, Ñ

Ð All systems: Reviewed and negative except as stated. Ñ Under

the category Ð Gastrointestinal, Ñ the record indicates Ð Reports:

Abdominal pain, Constipation. Denies: Nausea, vomiting,

Diarrhea. Ñ

2 6 . In the physical e xamination section of the electronic

medical record, it is noted that R.D. was alert and in mild

distress. The cardiovascular examination indicates that R.D. had

a regular rate, normal rhythm, and normal heart sou n ds, with no

systolic or diastolic murm u r. With respect to his abdominal

exam, Respondent indicated, Ð Present: Soft, normal bowel sounds.

Absent: Guarding, Rebound, Rigid . Ñ The notation that the

abdomen was soft with normal bowel sounds is another way of

noting that the abdomen is non - tender.

2 7 . Because R.D. was tachycardic upon presentation to the

emergency room, Dr. Saadatmand noted R.D. Ó s anxiety about the

possibility of his cancer returning, and checked his pulse a

second time. When Respondent checked R.D. Ó s pulse, it had slowed

to 90, which is within a normal range.

2 8 . In light of R . D. Ó s normal vital signs , normal abdominal

examination , and the length of his pain and constipation,

Respondent determined that the most likely cause for Respondent Ó s

pain was constipation, and communicated that determination to

R.D. and C.D. He asked whether R.D. had used a laxative and was

told he had not. Dr. Saadatmand told R.D. and his wife that the

pain medication that he took could be a source for his

constipation, and that it would be prudent to tr y a laxative and

see if that produced results before considering any further

diagnostic tests.

2 9 . Respondent did not order any lab tests for patient R.D.

on June 27, 2014 , because his vital signs and abdominal

examination were normal . He did not order an EKG for R.D.

because there were no symptoms to indicate a cardiac issue.

30 . Respondent also did not order a CT scan of the abdomen

or pelvis for patient R.D. on June 27, 2014. He felt that, in

terms of R.D. Ó s concern about cancer recurrence, there w ere tests

available to R.D. Ó s oncologist that would be more useful in

detecting any recurrence of R.D. Ó s cancer that are not available

through an emergency room visit. For example, a PET scan would

be the most helpful, but is not something that Respondent could

order through the emergency room because it is not considered an

emergent study.

3 1 . The Department has not alleged, and the evidence did

no t demonstrate, that R.D. suffered from any emergency condition

that additional testing would have revealed a nd that went

undetected by Dr. Saadatmand.

3 2 . Respondent did order a prescription - strength lax ative,

i.e., Golytely, for R.D., which is a laxative commonly used to

treat constipation and to prepare patients for a colonoscopy.

3 3 . Dr. Saadatmand commun icated his recommendation to R.D.

and C.D. , who seemed relieved that the problem might be limited

to constipation. He also advised them to return to the emergency

room should R.D. Ó s symptoms get worse or if he developed a fever,

because those developments would indicate a change in his

condition.

3 4 . R.D. received discharge instructions that are

consistent with Dr. Saadatmand Ó s discussion with R.D. and his

wife. The discharge instructions referred R.D. to his primary

care physician, noted the prescriptio n for Golytely, and provided

information related to the community health navigator. The

Patient Visit Information sheet received by R.D. specifically

noted that the patient was acknowledging receipt of the

instructions provided, and stated, Ð I understand that I have had

EMERGENCY TREATMENT ONLY and that I may be released before all my

medical problems are known and treated. Emergency medical care

is not intended to be a substitute for complete medical care. My

E mergency Department diagnosis is preliminar y and may change

after complete medical care is received. I will arrange for

follow - up care. Ñ

3 5 . R.D. also received printed materials about constipation

and how to address the problem. These instructions stated that

the patient should contact his or he r primary care provider if

the constipation gets worse, the patient starts to vomit, or has

questions or concerns about his or her condition or care. It

also instructed the patient to return to the emergency room if he

or she had blood in his or her bowel movements or had a fever and

abdominal pain with the constipation. R.D. signed the

acknowledgment that he had read and understood the instructions

give n to him by his caregivers. The acknowledgment specifically

referenced the instructions regarding cons tipation. The written

instructions are consistent with the verbal advi c e provided by

Respondent.

R.D. Ó s Subsequent Treatment

3 6 . Unfortunately, R.D. Ó s symptoms did not improve. He

developed a fever and his pain level increased significantly. As

stated by his wife, his pain the following day was Ð way worse Ñ

than when he saw Dr. Saadatmand. After a call to her niece, a

nurse that worked in the emergency room at Parrish Medical

Center, C.D. took R.D. back to the hospital on June 28, 2014, at

approximatel y 6:30 p.m. At that point, he had a heart rate of

125, a temperature of 101.6 degrees, and tenderness in the lower

left quadrant of his abdomen.

3 7 . Testing indicated that R.D. had intra - abdominal masses

and small collections of extra - luminal gas that suggested the

possibility of a contained mi c ro - perforation. There is no

allegation in the Administrative Complaint that the micro -

perforation existed at the time R.D. saw Respondent.

3 8 . R.D. died on August 23, 2014, as a result of end - stage

T - cell lym phoma.

The Expert Witnesses

3 9 . The Department presented the expert testimony of Annie

Akkara, M.D. Dr. Akkara is board - certified in emergency medicine

and has been licensed to practice medicine in Florida for

approximately nine years. All of her prac tice has been in the

greater Orlando area in the Florida h ospital system. She worked

full - time for one year when she first moved to Florida, and since

that time approximately 80 percent of her practice has involved

reviewing medical charts for Veracode As sociates, to determine

whether diagnostic codes are fully supported in the medical

records. She takes emergency room shifts on an as - needed basis,

and has supervisory responsibility over patient extenders, such

as nurses and physicians Ó assistants, but no t over other

physicians. Dr. Akkara has never served on any committee for a

medical staff at a hospital or helped develop protocols for an

emergency room , and has not conducted any type of medical

research . Although her position requires her to review

el ectronic medical records, she was not familiar with the program

used by Parrish Medical Center.

40 . Dr. Akkara reviewed the medical records for the

emergency room visits for both June 27 and 28, 2014, as well as

the records from the inpatient admission af ter the June 28 visit.

She also reviewed the expert witness reports of Drs. Orban and

Smoak.

4 1 . Dr. Saadatmand presented the expert testimony of David

Orban, M.D. Dr. Orban practices emergency medicine in the Tampa

area. He attended medical school at St. Louis University and

completed residencies in orthopedics and emergency medicine.

Dr. Orban has been licensed to practice medicine in Florida since

1982 and has been board - certified in emergency medicine since

1981.

4 2 . Before he practiced in Florida , Dr. Orban served as an

instructor in surgery at the Washington University School of

Medicine, and from 1970 through 1983, was an a ssistant p rofessor

of m edicine at the University of California, Los Angeles ( UCLA ) .

In that position, he supervised residen ts in the emergency

medicine program and helped to develop the program Ó s curriculum.

Dr. Orban left UCLA in 1983 and moved to Florida, in order to

help establish the emergency medicine residency program at the

University of Florida.

4 3 . Currently, Dr. Orban is the d irector of e mergency

m edicine for the Universit y of South Florida (USF) , College of

Medicine, and the Medical Director Emeritus for the Tampa General

Hospital Emergency Room. The USF emergency medicine residency

program is a competitive prog ram which receives approximately

1 , 200 applications each year for ten residency positions.

Dr. Orban continues to spend approximately 20 - 24 hours each week

practicing in the emergency room, in addition to his teaching

responsibilities. He both sees patie nts on his own and

supervises residents who are seeing patients. He has extensive

experience in evaluating non - traumatic abdominal pain in the

emergency room. 2/

Allegations Related to the Standard of Care

4 4 . Dr. Akkara testified that in her opinion,

D r. Saadatmand Ó s care and treatment departed from the standard of

care in a variety of ways. She agreed that Respondent assessed

R.D. Ó s abdomen, but believed that he erred in not specifically

documenting that the abdomen was not tender. In this case, the

patient record specifically states, Ð Abdominal exam: Present:

Soft, Normal bowel sounds. Absent: Guarding, Rebound, Rigid. Ñ

In Dr. Akkara Ó s view, the notes should have been more specific,

and she found fault with the fact that the notes did not use the

words Ð tender Ñ or Ð non - tender. Ñ

4 5 . Dr. Orban, on the other hand, noted that Respondent

specifically documented the absence of guarding, rigidity and

rebound tenderness, and described the abdomen as Ð soft, with

normal bowel sounds. Ñ Dr. Orban testified that assessing an

abdomen for guarding, rigidity, and rebound are all forms of

checking for abdominal tenderness. He did not hesitate to

interpret Respondent Ó s medical records for R.D. as reflecting a

normal exam, meaning no tenderness was discovered. D r. Orban Ó s

opinion is supported by the differences in the medical records

from R.D. Ó s June 27 and 28 emergency room visits , and what

options are provided in the electronic medical record when a

positive finding for tenderness is chosen . Dr. Orban Ó s testim ony

is credited.

4 6 . The Administrative Complaint alleges and Dr. Akkara

opined that Respondent departed from the appropriate standard of

care by failing to obtain a complete set of normal vital signs

before R.D. was discharged from the hospital. The o nly vital

sign that was ever abnormal during R.D. Ó s June 27 visit was his

heart rate, which upon arrival was 127. Respondent rechecked

R.D. Ó s heart rate when he examined him, and upon re - examination

it was 90, well within normal limits.

4 7 . Dr. Orban d id not believe that the standard of care

required the physician, as opposed to possibly supportive staff,

to obtain a complete set of vital signs prior to ordering a

patient Ó s discharge. The evidence established that while there

is sometimes a nursing sta ndard in emergency rooms requiring a

nurse to obtain a second set of vital signs before a patient is

discharged , there is no corresponding standard that requires the

physician to repeat all of the vitals as well . Dr. Akkara

admitted that while she attempt s to get a complete set of vital

signs before she discharges a patient, she does not always

succeed in doing so. The evidence did not demonstrate a

departure from the standard of care for not obtaining a second

set of vital signs prior to discharge , espec ially where, as here,

all of R.D. Ó s vital signs were normal when he arrived at the

emergency room , except for his heart rate, and Dr. Saadatmand

did , in fact , re - assess R.D. Ó s heart rate prior to discharge .

4 8 . The Administrative Complaint alleges that R espondent

fell below the standard of care by not ordering routine lab work

for R.D. The Administrative Complaint does not allege what

purpose the routine lab work would serve in the emergency

treatment of R.D.

4 9 . Dr. Akkara testified that routine lab wo rk should have

been completed before discharge, and that it was a departure from

the standard of care not to do so. She stated that the labs were

necessary to assess white blood cell count, glucose levels, and

kidney function, and in those cases where ten derness was noted in

the upper right quadrant of the abdomen , also could indicate

issues with the patient Ó s liver enzymes. Dr. Akkara

acknowledged, however, that it is possible for a CBC (complete

blood count) to be frequently misleading in patients with

abdominal pain, and is often normal with patients with

appendicitis. Blood work often cannot distinguish between

serious and benign abdominal conditions, and Dr. Akkara admitted

that with respect to R.D., given the records from the subsequent

admission, a ny results from a CBC ordered on June 27 would not

have altered the treatment of the patient or changed his ultimate

outcome.

50 . Dr. Orban testified that in the majority of cases where

a CBC is ordered in the emergency room, it is not helpful.

Ordering a CBC is helpful where a patient has a fever because it

would help identify infection, or where a patient appears anemic.

Other than those instances, it is not all that useful and is

over - utilized.

5 1 . A chemistry panel measures a patient Ó s serum level s for

things like sodium, creatinine, and glucose. Dr. Orban testified

that , even with a diabetic patient, unless the patient is

experiencing vomiting, mental status changes, blurred vision,

frequent urination, or other symptoms associated with diabetes, a

blood chemistry panel would not be helpful for assessing a

patient with non - traumatic abdominal pain.

5 2 . Records for R.D. Ó s June 28 visit (the day after

Respondent saw R.D.) note that he was diabetic, while the June 27

records do not. However, it was not established that either R.D.

or his wife ever told anyone, whether nursing staff or

Dr. S aadatmand, that he was diabetic. There is no testimony that

his prescription for Metformin was to treat diabetes, as opposed

to some other condition, and there wa s no evidence to indicate

that diabetes is the only condition for which Metformin can be

prescribed. Dr. Akkara repeated ly referred to R.D. Ó s diabetes

as a basis for her opinions, but nev er identified the records

that formed a basis for her knowledge of R.D. Ó s diabetic

condition. The evidence presented does not establish that

ordering a blood chemistry or CBC was required by the appropriate

standard of care related to the care and treatment of R.D. in the

emergency room on June 27, 2016.

5 3 . Dr. Akkara also testified that Respondent departed from

the standard of care by failing to obtain a CT scan of the

abdomen and pelvis. Her opinion is based, at least in part, on

her belief that Respondent failed to document that R.D. Ó s abdomen

was non - tender. She a greed with Dr. Orban that if a patient has

no abdominal tenderness, then a CT scan is probably not

warranted.

5 4 . In addition, Dr. Orban testified credibly that over the

last ten years, there has been a trend toward over - utilization of

CT scans, with th e concomitant increased risk of radiation -

induced cancer. In this case, R.D. had reported having a CT scan

just weeks before this emergency room visit. His abdomen was not

tender. In a case such as this one, where the patient presents

with non - traumatic abdominal pain and a normal abdominal

examination and no fever, a CT scan is not warranted.

Dr. Orban Ó s testimony is credited. There is not clear and

convincing evidence to establish that the standard of care

required Respondent to order a CT scan under the circumstances

presented in this case.

5 5 . Dr. Akkara testified that Respondent also violated the

standard of care by not ordering an EKG for R.D. However, she

acknowledged that R.D. did not present with any cardiac - related

symptoms and denied chest pain. The purpose of an EKG is to

explore any cardiac - related symptoms, and R.D. did not present

with any. Dr. Akkara did not provide any protocols that dictate

when an EKG should be ordered. Dr. Akkara also acknowledged that

ordering an EKG would have no impact on the care provided to

R.D., and that a patient does not need an EKG just because he or

she walks in the emergency room with tachycardia. 3/

5 6 . The Department did not establish that the failure to

order an EKG violated the applicable standard o f care in this

case .

5 7 . The Department also has charged Respondent with failing

to arrange for follow - up care and failing to discuss follow - up

care , as well as reasons for R.D. to return to the emergency

room , if necessary. However, as noted in paragrap hs 32 - 34,

Dr. Saadatmand discussed follow - up care with R.D. and told him

what circumstances would require a return visit to the emergency

room. Dr. Akkara acknowledged that the discharge instructions

given to R.D. were adequate.

5 8 . As stated by Dr. Or ban, the role of an emergency room

physician with regard to the assessment of patients is to

identify emergency situations and treat them. Emergency

situations are those that are acute, rapidly decompensating, and

that require either medical or surgical i ntervention, with most

likely a hospital admission for more definitive care. It is not

the emergency physician Ó s responsibility to manage a patient Ó s

chronic conditions. It is routine to advise patients with non -

acute conditions to follow up with their e stablished physicians

and to provide written instructions to that effect.

Dr. Saadatmand Ó s actions in providing instructions, both in terms

of follow - up and possible return to the emergency room, were

consistent with the standard of care.

5 9 . Finally, th e Administrative Complaint finds fault with

Dr. Saadatmand for not conducting another abdominal examination

and not re - assessing R.D. Ó s vital signs prior to discharge. As

noted previously, the only vital sign that was abnormal when R.D.

arrived was his he art rate . Respondent did re - assess R.D. Ó s

heart rate prior to discharge , and it was normal. With respect

to a second examination of Respondent Ó s abdomen, the Department

did not establish that one was necessary. Here, Respondent Ó s

initial examination was normal , and the re was a reasonable

explanation for his discomfort that Respondent believed needed to

be addressed before going any further. Dr . Akkara offered no

protocol or other authority other than her own clinical

experience to support the opinion th at serial examinations of the

abdomen were required. On the other hand, Dr. Orban testified

that where, as here, where the first examination was normal and

there was no fever or vomiting, no second examination would be

required. 4/ Dr. Orban Ó s testimony i s credited.

60 . In summary, the Department did not establish that

Respondent violated the applicable standard of care in his care

and treatment of R.D. Further, his medical records, while not

perfect, justify the course of treatment provided in this ca se.

CONCLUSIONS OF LAW

6 1 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to sections 120.569, 120.57(1) , and

456.073(4), Florida Statutes (2016) .

6 2 . This is a proceeding in w hich the Department seeks to

discipline Respondent Ó s license as a medical doctor. The

Department has the burden to prove the allegations in the

Administrative Complaint by clear and convincing evidence. Dep Ó t

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

1996); Ferris v. Turlington , 595 So. 2d 292 (Fla. 1987). As

stated by the Supreme Court of Florida:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and lacking in confusion as to the

facts at issue. The evidence must be of such

a weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

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

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

of proof may be met where the evidence is in conflict, but it

Ð seems to preclu de evidence that is ambiguous. Ñ Westinghouse

Elec. Corp. v. Shuler Bros. , 590 So. 2d 986, 988 (Fla. 1st DCA

1991).

6 3 . B ecause this proceeding is considered penal in nature,

Respondent can only be found guilty of those allegations

specifically referenced in the Administrative Complaint.

Trevisani v. Dep Ó t of Health , 908 So. 2d 1108, 1109 (Fla. 1st DCA

2005); see also Christian v. Dep Ó t of Health , 161 So. 3d 416, 417

(Fla. 2d DCA 2014); Ghani v. Dep Ó t of Health , 714 So. 2d 1113,

1114 - 15 (Fla. 1st DCA 1998 ). Thus, only those allegations

actually charged in the Administrative Complaint are considered

in this Recommended Order. Moreover, charges in a disciplinary

proceeding must be strictly construed, with any ambiguity

construed in favor of the licensee. Elmariah v. Dep Ó t of Prof Ó l

Reg. , 574 So. 2d 164, 165 (Fla. 1 st DCA 1990); Taylor v. Dep Ó t of

Prof Ó l Reg. , 534 So. 2d 782, 784 (Fla. 1 st DCA 1988). Charging

statutes must be construed in terms of their literal meaning, and

words used by the Legislature ma y not be expanded to broaden

their application. Beckett v. Dep Ó t of Fin. Servs. , 982 So. 2d

94, 99 - 100 (Fla. 1 st DCA 2008); Dyer v. Dep Ó t of Ins. & Treas. ,

585 So. 2d 1009, 1013 (Fla. 1 st DCA 1991).

6 4 . Count I of the Administrative Complaint charges

Res pondent with violating section 458.331(1)(t)1., which

provide d :

Notwithstanding s. 456.072(2) but as

specified in s. 456.50(2):

1. Committing medical malpractice as defined

in s. 456.50. The board shall give great

weight to the provisions of s. 766.102 w hen

enforcing this paragraph. Medical

malpractice shall not be construed to require

more than one instance, event, or act.

6 5 . Section 456.50(1)(g) defined medical malpractice as

follows:

(g) Ð Medical malpractice Ñ means the failure

to practice medicine in accordance with the

level of care, skill, and treatment

recognized in general law related to health

care licensure. Only for the purpose of

finding repeated medical malpractice pursuant

to this section, any similar wrongful act,

neglect, or default co mmitted in another

state or country which, if committed in this

state, would have been considered medical

malpractice as defined in this paragraph,

shall be considered medical malpractice if

the standard of care and burden of proof

applied in the other sta te or country equaled

or exceeded that used in this state.

6 6 . Section 766.102, Florida Statutes , provide d in

pertinent part:

(1) In any action for recovery of damages

based on the death or personal injury of any

person in which it is alleged that such death

or injury resulted from the negligence of a

health care provider as defined in

s. 766.202 (4), the claimant shall have the

burden of proving by the greater weight of

evidence that the alleged actions of the

health care provider represented a breach of

the prevailing professional standard of care

for that health care provider. The

prevailing professional standard of care for

a given health care provider shall be that

level of care, skill, and treatment which, in

light of all relevant surrounding

circum stances, is recognized as acceptable

and appropriate by reasonably prudent similar

health care providers.

6 7 . The Administrative Complaint alleges that Respondent

failed to meet the prevailing standard of care in his care and

treatment of patient R.D. in one or more of the following ways:

by failing to assess R.D. Ó s abdomen for tenderness , by failing to

obtain a complete set of normal vital signs prior to discharge of

R.D. , by failing to conduct routine lab work , by failing to

obtain a CT scan of the abd omen and pelvis , by failing to obtain

an EKG , by failing to arrange for follow - up care if the patient

was stable enough for discharge , by failing to discuss follow - up

care and reasons to return to the emergency department , by

failing to conduct another abd ominal exam prior to discharge , and

by failing to reassess R.D. Ó s vital signs prior to discharge.

6 8 . The Department did not establish a violation of Count I

of the Administrative Complaint by clear and convincing evidence.

6 9 . Count II of the Administra tive Complaint charges

Respondent with violating section 458.331(1)(m), which provide d

that a physician may be disciplined for:

F ailing to k eep legible, as defined by

department rule in consultation with the

board, medical records that identify the

license d physician or the physician or

physician extender 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 limited to, patient

histories; examination results; test results;

records of drugs prescribed, dispensed or

administered; and reports of consultations

and hospitalizations.

70 . The Department contends that Re spondent violated

section 458.331(1)(m) by failing to document R.D. Ó s history of

diabetes , by failing to document the assessment of R.D. Ó s abdomen

for tenderness , by failing to document a discussion with R.D.

regarding follow - up care and reasons to return to the emergency

department , by failing to document obtaining a complete set of

normal vital signs prior to discharging the patient , and/or by

failing to document that the patient felt well enough to leave

with just medicine for constipation.

71 . As noted by Respondent in his Proposed Recommended

Order, there is no reference in section 458.331(1)(m) to a

standard of care. In Barr v. Department of Health, Board of

Dentistry , 954 So. 2d 668 , 669 (Fla. 1st DCA 2007) , a dentist was

charged with violating the appropriate standard of care with

respect to his treatment of a patient Ó s root canal and with

respect to his patient records related to the care. The ALJ

found no fault with the actual treatment rendered , but found that

his deficient records amounted to a violation of the standard of

care. The dentist appealed and the First District reversed,

stating :

The Board argues that particularly egregious

recordkeeping violations could rise to the

level of a Ð standard of care Ñ violation.

Because this renders [sect

useless, it is clearly erroneous. We believe

there is a significant difference between

improperly diagnosing a patient, which

properly diagnosing a patient, yet failing to

properly document t he actions taken on the

patient Ó s chart, which constitutes a

subsection (m) violation.

7 2 . Florida Administrative Code Rule 64B8 - 9.001 is the

Board of Medicine Ó s rule that provides standards for the ade quacy

of medical records. Paragraph (2) requires m edical records that

are Ð in English, in a legible manner and with sufficient detail

to clearly demonstrate why the course of treatment was

undertaken. Ñ It does not require that every word of a

physician Ó s conversation with a patient be recorded, and it do es

not require an explanation as to alternative treatments that may

have bee n considered but were not undertaken. Colbert v. Dep Ó t

of Health , 890 So. 2d 1165, 1167 (Fla. 1st DCA 2004); Breesmen v.

Dep Ó t of Health , 567 So. 2d 469, 471 (Fla. 1st DCA 1990).

7 3 . Here, the medical records related to Respondent Ó s care

and treatment of R.D. were adequate. The Department did not

demonstrate a violation by clear and convincing evidence .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

order dismissing the Administrative Complaint.

DONE AND ENTERED this 5th day of December , 2016 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Ad ministrative 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 Hea rings

this 5th day of December , 2016 .

ENDNOTE S

1/ There are various places in the nursing notes where R.D. Ó s

pain is listed as 8 out of 10, 9 out of 10, and 10 out of 10.

There is also a discrepancy in the records concerning the

duration of his pain. While most entries reflect pain of three

days Ó duration, Respondent Ó s note as recorded by the scribe says

the pain was of one days Ó duration. A review of the record as a

whole supports the conclusion that R.D. had suffered pain for a

while (hence the wor kup by the oncologist), but that the

constipation had lasted for approximately three days, and that

R.D. Ó s pain was moderate, as recorded in the doctor Ó s note.

2/ The undersigned had the opportunity to observe both expert

witnesses: Dr. Akkara by revie wing her video deposition and

Dr. Orban by observing his live testimony. Both physicians seem

comfortable with their positions. However, Dr. Orban Ó s

experience, both as a practitioner and as a professional involved

in both developing and implementing pro grams teaching the

appropriate approach to emergency room care, far outweighed

Dr. Akkara Ó s, and his testimony as a whole was simply more

credible. Dr. Akkara Ó s approach would perhaps be considered a

more conservative approach to the practice of emergency medicine,

but her testimony did not persuasively establish that her

approach represented the appropriate standard of care. Much of

her testimony seemed geared toward what she deemed to be prudent,

as opposed to what is the generally accepted standards of

practice or established protocols require. McDonald v. Dep Ó t of

Prof Ó l Reg.., Bd. of Pilot Commrs. , 582. So. 2d 660 (Fla. 1st DCA

1992); Purvis v. Dep Ó t of Prof Ó l Reg . , Bd. of Veterinary Med. ,

461 So. 2d 134, 136 (Fla. 1st DCA 1984).

3/ When R.D. retur ned to Parrish Medical Center on June 28, the

attending physician did not order an EKG. When one was ordered

in mid - July, it was normal.

4/ Dr. Orban testified that performing serial examinations of the

abdomen would be appropriate if the physician sees a patient that

is sick that presents with a history of uncontrollable vomiting

and a fever. In that situation the physician might choose to

hold the patient in the emergency room for observation and then

re - examine them, but it is a fairly rare practice. It also used

to be the standard where a physician suspected something like

appendicitis. That is not the case here.

COPIES FURNISHED:

Michael E. Morris, Esquire

Prosecution Services Unit

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahasse e, Florida 33299 - 3265

(eServed)

Brian A. Newman, Esquire

Pennington, P.A.

215 South Monroe Street, Second Floor

Tallahassee, Florida 32302

(eServed)

Claudia Kemp, JD, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way, Bi n C03

Tallahassee, Florida 32399 - 3253

(eServed)

Nichole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

(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.