19-001931PL
Department Of Health, Board Of Medicine vs.
John Carey Tomberlin, M.D.
Status: Closed
Recommended Order on Tuesday, January 21, 2020.
Recommended Order on Tuesday, January 21, 2020.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF HEALTH,
11BOARD OF MEDICINE ,
14Petitioner , Case No. 19 - 1931PL
20vs.
21JOHN CAREY TOMBERLIN, M.D. ,
25Respondent .
27/
28RECOMMENDED ORDER
30On October 15 , 2019, Administrative Law Judge Yolonda Y.
39Green of the Division of Administrative Hearings (DOAH)
47conducted a duly - noticed hearing pursuant to section 120.57(1),
57Florida Statutes (2019), in Panama City Beach , Florida.
65APPEARANCES
66For Petitioner: Jasmine Green, Esquire
71Cynthia Nash - Early, Esquire
76Department of Health
794052 Bald Cypress Way , Bin C - 65
87Tallahassee, Florida 32399
90For Respondent: Brian Newman, Esquire 1/
96Kathryn Hood , Esquire
99Pennington, P.A.
101Suite 200
103215 South Monroe Street
107Post Office Box 10095
111Tallahassee, Florida 32301
114STATEMENT OF THE ISSUE S
119The issues to be determined are whether Respondent,
127John Carey Tomberlin, M.D. (Respondent or Dr. Tomberlin) ,
135violated section 458.331 (1) (t) 1. , Florida Statutes (2014) , by
145failing to identify a subdural hematoma on the left side of
156Patient J . A . s brain, as alleged in the Administrative
168Complaint; and if so, what penalty should be imposed.
177PRELIMINARY STATEMENT
179On June 22, 2018, the Department of Health, Board of
189Medicine ( Petitioner or the Department ), filed a two - count
205Administrat ive Complaint alleg ing Respondent violated
212section 458.331(1)(m) and (t)1. , in his interpretation of a CT
222scan of Patient J.A.s head . On J uly 1 1, 2018, Respondent
235notified the Department that he disputed the allegations in the
245Administrative Complaint and requested a hearing involving
252disputed issues of material fact. On April 15, 2019, the
262Department referred this matter to DOAH for assignment of an
272administrative law j udge, which was assigned to the undersigned.
282On June 10, 2019, Petitioner filed a Notice of Dismissal of
293Count II, which dismissed the allegation of a violation of
303section 458.331(1)(m). The remaining count in the
310Administrative Complaint alleges that Respondent violated
316section 458.331(1)(t)1., by failing to identify a subdural
324hematoma on the left side of Patient J.A.s brain.
333The undersigned issued a Notice of Hearing scheduling this
342case for June 20, 2019. On June 10, 2019, Respondent filed an
354Unopposed Motion to Continue , seeking a continuanc e based on a
365scheduling conflict , which the undersigned granted. The
372undersigned rescheduled this case for October 15 and 16, 2019 ,
382and it commenced as scheduled.
387The parties filed a n Amended Joint Pre - H earing Stipulation
399on October 8, 2019, containing f actual stipulations that h ave
410been incorporated into the Findings of F act below .
420At the hearing, Petitioner presented the expert testimony
428of Josep h Andriole, M.D . Petitioners Exhibit 1 was admitted
439over objection and Petitioners Exhibits 2 and 3 were admitted
449without objection. Respondent testified on his own behalf
457and presented the expert testimony of Katherine Lursen, M.D.,
466Respondents expert witness . Re spondents Exhibits 3, 4,
475and 6 were admitted without objection , and Respondents
483Exhibit 5 wa s proffered.
488The one - volume Transcript of th e proceeding was filed with
500DOAH on December 4, 2019 . On December 12, 2019, the undersigned
512considered and granted R espondents Unopposed Motion for
520E xtension of Time to F ile Proposed Recommended Orders . Thus ,
532the deadline for Proposed Recommended Orders ( PROs ) was
544December 20, 2019. The parties timely filed PROs , wh ich have
555been considered in preparation of this Recommended Order. 2 /
565This proceeding is gover ned by the law in effect at
576the time of the commission of the acts alleged to warrant
587discipline. See McCloskey v. Dept of Fin. Servs. , 115 So. 3d
598441 (Fla. 5th DCA 2013). Thus, references to statut es are to Florida Statutes (2014 ), unless otherwise noted.
617FINDING S OF FACT
621Based upon the testimony and documentary evidence presented
629at hearing, the demeanor and credibility of the witnesses, and
639the entire record of this proceeding, the following Findings of
649F act are made :
654Parties
6551 . Petitioner is the state agency charged with regulating
665the practice of med icine pursuant to section 20.43 and
675chapters 456 and 458, Florida Statutes.
6812. At all times material to this proceeding and
690Petitioners Administrative Complaint , Respondent was li censed
697to practice medicine in the sta te of Florida, havin g been issued
710license number ME 60438.
7143. Respondents practice address of record is
7212600 Hospital Drive, Bonifay , Florida 32425.
7274 . Respond ent, a board - certified radiologist , has been
738practicing since 1987. Respondent attended University of
745Alabama for medical school and is also licensed in that state.
756He has worked in rural areas in covering a variety of prac tice
769settings, including prisons, clinics , and hospitals. I n his
778practice as a radiologist, h e testified that he r eviews 100 to
791200 CT scans per week .
797Facts Related to Patient J.A. s CT S can
8065. On August 29, 2014, P atient J.A., a seventy - four year
819old male, presented to Doctors Memorial Hospital in Bonifay,
828Florida.
8296 . Patient J.A. presented with a history of suffering a
840physical attack including being struck over the head with a
850chair and being repeatedly punched in the head. The attack
860resulted in complaints of dizziness and a contusion on the left
871side of the head. T o fully assess the injury sustained during
883the attack , Patient J.A. underwent a CT scan of the head without
895contrast .
8977 . R espondent was tasked with interpreting the CT scan .
9098 . On August 29, 2014, Dr. Tomberlin dic tated a report of
922his findings as follows: Bone and soft tissue windows are
932included. Soft tissue density can be seen within some of the
943paranasal sinuses. The calvarium is intact. The ventricles are
952symmetrical. Pineal calcifications are noted. There is no
960acute hemorrhage, midline shift, mass effect or extra - axial
970fluid collection. H is opinion was as follows : (1) Negative
982CT brain scan ; and (2) M inimal sinusitis with bot h acute and
995chronic elements noted.
9999 . On August 29, 2 014, Respondent did not detect a
1011subdural hematoma in the CT scan images of Patient J.A .s head.
102310 . A subdural hematoma is a collection of blood in the
1035head on the outside of the brain beneath the dura, a fibrous
1047lining of the brain.
105111 . Patient J. A . d ied on September 16, 2014 .
106412 . Dr. Tomberlin acknowledged that he did not perceive
1074the hematoma at the time of his initial review, despite
1084exercising due care in his review of the CT scan. He explained
1096that he missed the hematoma due to several factors: t here was
1108no indication of a midline shift ; hyperdensity was white and
1118dense in comparison to the rest of the brain tissue ; the brain
1130was very large ; and the size (described as small) of the
1141subdural hematoma. He noted that while elderly patients are at
1151a higher risk for subdural he matoma, P atient J.A. ha d a health y
1166and larger brain despite his age.
117213 . Dr. Tomberlin testified that after he learned that
1182Patient J.A. had died, he performed a post - mortem review of the
1195CT scan and discovered the subdural hematoma.
1202Expert Witnesses
1204D r. Andriole
12071 4 . T he Department presented the testimony of Joseph
1218Gerald Andriole, M.D . Dr. Andriole was accepted as an expert in
1230diagnostic radiology. Dr. Andriole is a board - certified
1239diagnostic radiologist with a subspecialty in interventional
1246radiology. He has been licensed to practice medicine in F lorida
1257since 1986. He attended Howard University S chool of M edicine
1268and completed his residency in diagnostic radiology at Case
1277Western Reserve University Hospital . Dr. Andriole is not
1286trained in and is not board certified in neuroradiology.
12951 5 . Since reducing his full - time practice to three to four
1309days per month in 2012, Dr. Andriole reviews approximately 15 CT
1320scans of the head per month in an outpatient setti ng.
1331Dr. Lursen
13331 6 . Respondent presen ted the testimony of Katherine
1343Perrien Lursen , M.D ., who was accepted as an expert in
1354diagnostic radiology. Dr. Lursen, a diagnostic radiologist , is
1362licensed to practice medicine in Alabama . Dr. Lursen is not
1373licensed to practice medicine in F lorida, but she maintains an
1384ex pert witness certificate , having been issued certificate
1392number MEEW6548 , which authorizes her to testify in Florida
1401cases. For the reasons set forth herein, she is also familiar
1412wit h the standards of reviewing CT scans.
14201 7 . Dr. Lursen earned her medical degree from the
1431University of Alabama at Birmingham and completed her residency
1440in radiology. She also completed a fel lowship in
1449neuroradiology. Dr. Lursen is board certified in diagnostic
1457radiology with a certification in the subspecialty of
1465neuroradiology.
146618 . Dr. Lursen has practiced diag nostic radiology for nine
1477years. In her full - time practice , she services three hospitals
1488as a neuroradiologist and reviews approximately 120 to 150 CT
1498scans of the head each month.
150419 . S he serves as the chair of the radiology department at
1517Mobile Infirmary, a 700 - bed hospital in Mobi le, Alabama, the
1529larges t hospital in Mobile. As the department chair , she helps
1540develop protocols for radiology at Mobile Infirmar y, including
1549the appropriate method to interpret radiology images.
1556Dr. Lursen also serves on a hospital peer - review committee and
1568reviews cases where the standard of care i s at issue.
15792 0 . In addition to h er practice related duties, Dr. Lursen
1592teaches at the Alabama College of Osteopathic Medicine and
1601instructs students during rotations.
1605Allegations Related to the Standard of Care
16122 1 . Dr. Andriole reviewed the hospital records for
1622Patient J.A. for August 29, 2014, including the admission record
1632that reflected Patient J.A. was hit in the head in the left
1644temple area and a contusion was noted on the left temple.
1655Dr. Andriole also reviewed t he CT scan of Patient J.A.s h ead
1668and Respondents CT report . Based on his review of the CT scan ,
1681CT report, and hospital records, D r. Andriole opined that
1691Dr. Tomberlin departed from the standard of care by failing
1701to identify the subdural hematoma on the left side of
1711Patient J.A.s brain.
17142 2 . When the standard of care is at issue , the individual
1727opinion of an expert witness does not establish the standard of
1738care. The standard of care is based on the level of care,
1750skill, and treatment which, in light of all relevant surrounding
1760circumstances, is recognized as acceptable and appropriate by
1768reasonably prudent similar health care providers . 3/
177623. Petitioners expert, D r. Andriole , was tasked with
1785establishing the actions a reasonably prudent radiologist would
1793exercise when interpreting a CT scan of the head. Dr. Andriole
1804testified that the standard of care states that a physician
1815would provide the type of interpretation that wou ld be expected
1826from a competent, prudent physician at the time under similar
1836circumstances. He also testified that th e standard of care
1847required Dr. Tomberlin to identify expected abnormalities that
1855result from the type of head injury or trauma suffered by
1866Patient J.A.
18682 4 . Based on the testimony at hearing, Dr. Andriole s
1880expert testimony fell short of establishing the standard of care
1890a reasonably prudent physician would exercise under the
1898circumstances to detect an abnormality.
19032 5 . W hen addre ssing the standard of care, Dr. Andrioles
1916testimony was as follows:
1920Q. W hat is the standard of care for a
1930radiologist reviewing the CT scan of the
1937head or brain ?
1940A. [T] he standard of care states that a
1949physician would provide the type of
1955interpretatio n that would be expected from
1962a competent, prudent physician at the time
1969under the circumstances.
19722 6 . Dr. Andriole testified that a physician would provide
1983the type of interpretation that w ould be expected, but failed
1994to stat e standards upon which the undersigned could evaluate
2004Dr. Tomberlins interpretation of the CT scan.
20112 7 . Further, Dr. Andriole reached his opinion without
2021regard to the findings in the CT report , which reflected
2031Dr. Tomberlins assessment of the CT sc an. In considering
2041whether Dr. Tomberlin met the standard of care, Dr. Andriole
2051testified that a reasonably prudent physician would consider the
2060underlying cause of injury or trauma to aid in interpret ation of
2072the CT scan, which Dr. Tomberlin considered. Dr. Andriole
2081acknowledged that the abnormality was smaller than average for a
2091subdural hematoma. He also acknowledged that Dr. Tomberlin
2099carefully reviewed the CT scan because he identified small
2108abnormalities in the sinuses that were smaller than the subdural
2118hematoma.
21192 8 . Dr. Andriole agreed that the type of error in this
2132case, a perceptional error, may still meet the standa rd of care.
2144Dr. Andriole ack nowledged that a three to five percent error
2155rate can occur when reviewing radiology images.
216229 . Dr. Lursen , on the other hand, opined that
2172Dr. Tomberlin met the standard of care in his review of the CT
2185scan for Patient J.A. Dr. Lursen pointed to Respondent s
2195interpretation of the CT scan and highlighted that his reference
2205to absence of midline shift, absence of mass effect, and
2215calvarium (being) intact show Dr. Tomberlin was looking for a
2225subdural hematoma.
222730 . Dr. Lursen credibly testified that when interpreting a
2237CT scan of the head of a trauma patient, the standard of care
2250requires a physician to look at several factors to detect an
2261abnormality. Dr. Lursen testified that assessing whether there
2269is a midline shift and mass effect is important because those
2280are two signs of intracranial hemorrhage, including subdural
2288hematoma. The standard of care also requires that the
2297radiologist look for areas of hyperdensity because hyperdensity
2305is an indicator o f intracranial hemorrhage. Density refers to
2315the amount of gray versus the amount of black and white on an
2328image. If an image is hyperdense, then it is whiter than the
2340su rrounding or adjacent structure or tissue . The radiologist
2350should determine whether there is a skull fracture. Finally,
2359the radiologist should look for acute hemorrhage.
23663 1 . Dr. Lursen noted that Respondents CT report reflecte d
2378an appropriate assessment of care a reasonably prudent physician
2387would exercise to detect a subdural hematoma.
23943 2 . Despite the appropriate assessment, however, it is
2404undisputed that Respondent failed to identify the subdural
2412hematoma.
24133 3 . Dr. Lursen opined that failure to identify the
2424hematoma was not a departure from the sta ndard of care due to
2437its atypical appearance. Dr. Lursen considered the presentation
2445of the subdural hematoma to be atypical because of its tiny
2456size , and the absence of typical traits, including, mass
2466effect, midline shift, or inju ry to the skull in the CT images .
2481She testified that the density of the hematoma was closer to the
2493shade of the brain mass and there was no skull fracture.
25043 4 . Further, a classical subdural hematoma is C - shaped and
2517causes a midline shift of the brain , which was not apparent on
2529Patient J.A.s CT scan.
25333 5 . Dr. Lursen provided testimony that Respondents
2542failure to identify the hematoma fell with an accepted three to
2553five percent error rate . That error rate includes the
2563presumption that the radiologist has conducted himself in a
2572manner in interpreting the film or image that is prudent under
2583the circ umstances. According to Dr. Lursen, a radiologist can
2593have a three to five percent error rate and still have met the
2606standard of care. In this case, Dr. Lursen credibly testified
2616that Respondents failure to identify the subdural hematoma f ell
2626within that three to five percent error rate, but he still met
2638the standard of care.
26423 6 . Dr. Lursen testified that Dr. Tomberlins error fell
2653with in the category of an observational or perceptual error. An
2664observational or perceptual error occurs when a radiologist
2672follows the appropriate method for reviewing images but does not
2682perceive the a bnormality upon initial review.
26893 7 . Dr. Lursen s opinion that Dr. Tomber l ins failure to
2703identify the subdural hematoma wa s a perceptual error, which did
2714not fa ll outside the standard of care is credited.
2724Ultimate Findings of Fact
27283 8 . In determining whether Dr. Tomberlin met the standard
2739of care, the question is not whether either of the experts could
2751identify t he abnormality, but whether Dr. Tomberlin used the
2761degree of skill and care that a reasonably prudent physician in
2772the medical community would exercise to detect the abnormality.
278139 . To be convincing, the opinion ne eds to establish
2792clearly the existence of a standard of care in the profession
2803and explain how such standard ap plies to the facts of the case.
2816A n expert's opinion on the standard of care must result from a n
2830analysis of the facts to determine w hat a reason ably prudent
2842physician in the radiology community would do given the
2851circumstances.
285240 . T he undersigned finds in Dr. Lursens expert testimony
2863t hat Dr. Tomberlin met the standard of care in his
2874interpretation of Patient J.A.s CT scan more persuasive than
2883D r. Andriole s testimony . 4 /
28914 1 . Thus, the Department did not establish by clear and
2903convincing evidence that Respondent violated the applicable
2910standard of care in his interpretation of the CT scan of
2921Patient J.A.s head.
2924CONCLUSIONS OF LAW
29274 2 . The Division of Administrative Hearings has
2936jurisdiction over the parties to and the subject matter of this
2947proceeding pursuant to sections 120.569, 120.57(1), and
2954456. 073(5 ), Florida Statutes (2019 ).
29614 3 . The Department has authority to investigate and file
2972administrative complaints charging violations of the laws
2979governing the practice of nursing. § 456.073, Fla. Stat.
29884 4 . This is a proceeding in which the Department seeks to
3001discipline Respondents lice nse as a medical doctor. The
3010Department has the burden to prove the allegations in the
3020Administrative Complaint by clear and convincing evidence.
3027Dept of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d
3040932 (Fla. 1996); Ferris v. Turlington , 595 So. 2d 292 (Fla.
30511987). Fox v. Dep't of Health , 994 So. 2d 416 (Fla. 1st DCA
30642008); Pou v. Dept of Ins. & Treasurer , 707 So. 2d 941 (Fla. 3d
3078DCA 1998).
30804 5 . The clear and convincing evidence level of proof:
3091[E} ntails both a qualitative and
3097quantitative standard. The evidence must be
3103credible; the memories of the witnesses must
3110be clear and without confusion; and the sum
3118total of the evidence must be of sufficient
3126weight to convince the trier of fact without
3134hes itancy.
3136Clear and co nvincing evidence requires
3142that the evidence must be found to be
3150credible; the facts to which the witnesses
3157testify must be distinctly remembered; the
3163testimony must be precise and explicit and
3170the witnesses must be lacking in confus ion
3178as to the facts in issue. The evidence must
3187be of such weight that it produces in the
3196mind of the trier of fact a firm belief or
3206conviction, without hesitancy, as to the
3212truth of the allegations sought to be
3219established.
3220In re Henson , 913 So. 2d 579, 590 (Fla. 2005) (quoting
3231Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla . 4th DCA 1983)).
3244While this burden of proof may be met where the evidence is in
3257conflict, it seems to preclude evidence that is ambiguous.
3266Westinghouse Elec. Corp. v. Shuler Bros. , 590 So. 2d 986,
3276988 (Fla. 1st DCA 1991).
32814 6 . Because this proceeding is considered penal in
3291nature, Respondent can only be found guilty of those allegations
3301specifically referenced in the Administrative Complaint.
3307Trevisani v. Dept of Health , 908 So. 2d 1108, 1109 (Fla. 1st
3319DCA 2005); see also Christian v. Dept of Health , 161 So. 3d
3331416, 417 (Fla. 2d DCA 2014); Ghani v. Dept of Health , 714 So.
33442d 1113, 1114 - 15 (Fla. 1st DCA 1998). Thus, only those allegations actually charged in the Admini strative Complaint are
3365considered in this Recommended Order. Moreover, charges in a
3374disciplinary proceeding must be strictly construed, with any
3382ambiguity construed in favor of the licensee. Elmariah v. Dept
3392of Profl Reg. , 574 So. 2d 164, 165 (Fla. 1st DCA 1990); Taylor
3405v. Dept of Profl Reg. , 534 So. 2d 782, 784 (Fla. 1st DCA
34181988). Charging statutes must be construed in terms of their literal meaning, and words used by the Legislature may not be
3439expanded to broaden their application. Beckett v. Dep t of Fin.
3450Servs. , 982 So. 2d 94, 99 - 100 (Fla. 1st DCA 2008); Dyer v. Dept
3465of Ins. & Treas. , 585 So. 2d 1009, 1013 (Fla. 1st DCA 1991).
34784 7 . The Administrative Complaint charges Respondent with
3487violating section 458.331(1)(t)1., which provided:
3492Notwithsta nding s. 456.072(2) but as
3498specified in s. 456.50(2):
35021. Committing medical malpractice as
3507defined in s. 456.50. The board shall give
3515great weight to the provisions of s. 766.102
3523when enforcing this paragraph. Medical
3528malpractice shall not be construed to
3534require more than one instance, event, or
3541act.
35424 8 . Section 456.50(1)(g) defined medical malpractice as
3551follows:
3552(g) Medical malpractice means the failure
3558to practice medicine in accordance with the
3565lev el of care, skill, and treatment
3572recognized in general law related to health
3579care licensure. Only for the purpose of
3586finding repeated medical malpractice
3590pursuant to this section, any similar
3596wrongful act, neglect, or default committed
3602in another state or country which, if
3609committed in this state, would have been
3616considered medical malpractice as defined in
3622this paragraph, shall be considered medical
3628malpractice if the standard of care and
3635burden of proof applied in the other state
3643or country equaled or ex ceeded that used in
3652this state.
365449 . S ection 766.102 provided in pertinent part:
3663(1) In any action for recovery of damages
3671based on the death or personal injury of any
3680person in which it is alleged that such
3688death or injury resulted from the negligence
3695of a health care provider as defined in
3703s. 766.202(4), the claimant shall have the
3710burden of proving by the greater weight of
3718evidence th at the alleged actions of the
3726health care p rovider represented a breach
3733of the prevailing professional standard of
3739care for that health care provider. The
3746prevailing professional standard of care for
3752a given health care provider shall be that
3760level of care, skill, and treatment which,
3767in light of all relevant surrounding
3773circums tances, is recognized as acceptable
3779and appropriate by reasonably prudent
3784similar health care providers.
378850 . The Admin istrative Complaint alleges Respondent failed
3797to meet the prevailing standard of care by failing to identify
3808the subdural hematoma on P atient J.A.s CT scan. Both ex perts
3820agree d that the failure to perceive and identify an abnormalit y
3832that can be seen on an image does not always amount to a
3845depa rture from the standard of care , s uch is the case here ,
3858despite the outcome for the patient.
386451 . As set forth in the Findings of F act herein, the
3877evidence in this case was not clear and convincing that
3887Respondent violated an applicable standard of care by failing to
3897identify the subdural hematoma.
390152 . Based on the foregoin g , t he Department did not meet
3914its burden to prove , by clear and convincing evidence , that
3924Respondent committed a violation as alleged in the
3932Administrative Complaint.
3934RECOMMENDATION
3935Based on the foregoing Findings of Fact and Conclusions of
3945Law, it is RECOMMENDED that the Department of Health, Board of
3956Medicine enter a final order dismissing the Administrative
3964Complaint .
3966DONE AND ENTERED this 21st day of January, 2020 , in
3976Tallahassee, Leon County, Florida.
3980YOLONDA Y. GREEN
3983Administrative Law Judge
3986Division of Administrative Hearings
3990The DeSoto Building
39931230 Apalachee Parkway
3996Tallahassee, Florida 32399 - 3060
4001(850) 488 - 9675
4005Fax Filing (850) 921 - 6847
4011www.doah.state.fl.us
4012Filed with the Clerk of the
4018Division of Administrative Hearings
4022this 21st day of January , 202 0 .
4030ENDNOTE S
40321/ Mr. Newman serv ed as counsel of record for Dr. Tomberlin
4044during the final hearing. On December 12, 2019, Ms. Hood was
4055substituted as counsel for Dr. Tomberlin .
40622 / The undersigned granted the parties request for extension of
4073time to file PROs . Pursuant to F lorida Administrative Code
4084Rule 28 - 106.216(2 ) , the parties waived the timeline for this
4096Administrative Law J udge to issue this Recommended O rder within
410730 days after receiving the Transcr i pt.
41153/ See Section 766.102 Fla. Stat.
41214 / The undersigned had the opportunity to observe the live
4132testimony of both expert witnesses. Both physicians were
4140confident in their respective po sitions. However, Dr. Lursens
4149experience, both as a practitioner and as a professional
4158involved in both developing and implementing programs teaching
4166the appropriate approach for interpreting CT scans of the head ,
4176outweighed Dr. Andriole. Dr. Lursen was found to be more
4186credible as sh e outlined an analysis of all factors to determine
4198whether Respondent met the standard of care. Dr. Andr iole
4208appeared to understand what the standard of care typically
4217requires, but his testimony did not persuasively establish that
4226his approach represente d the appropria te standard of care. Much
4237of his testimony seemed directed toward what he deemed to be
4248prudent, as opposed to what the generally accepted standard of
4258practice would require. M cDonald v. Dept of Profl Reg. , Bd.
4269of Pilot Commrs. , 582. So. 2d 660 (Fla. 1st DCA 1992); Purvis v.
4282Dept of Profl Reg., Bd. of Veterinary Med. , 461 So. 2d 134,
4294136 (Fla. 1st DCA 1984).
4299COPIES FURNISHED:
4301Jasmine B. Green, Esquire
4305Department of Health
4308Prosecution Services Unit
43114052 Bald Cypress Way , Bin C - 65
4319Tallahassee, Florida 32399
4322(eServed)
4323Cynthia Elizabeth Nash - Early, Esquire
4329Department of Health
43324052 Bald Cypress Way , Bin C - 65
4340Tallahassee, Florida 32399 - 3265
4345(eServed)
4346Kathryn Hood, Esquire
4349Pennington, P.A.
4351Suite 200
4353215 South Monroe Street
4357Post Office Box 10095
4361Tallahassee, Florida 32301
4364(eServed)
4365Claudia Kemp, JD, Exec utive Director
4371Board of Nursing
4374Department of Health
43774052 Bald Cypress Way , Bin C - 03
4385Tallahassee, Florida 32399
4388(eServed)
4389Louise Wilhite - St. Laurent, General Counsel Department of Health
43994052 Bald Cypress Way , Bin C65
4405Tallahassee, Florida 32399
4408(eServed)
4409NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
4415All parties have the right to submit written exceptions within
442515 days from the date of this Recommended Order. Any exceptions
4436to this Recommended Order should be filed with the agency that
4447will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 01/27/2020
- Proceedings: Amended Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 01/21/2020
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 12/12/2019
- Proceedings: Respondent's Unopposed Motion for Extension to Time to File Proposed Recommended Orders filed.
- PDF:
- Date: 06/26/2019
- Proceedings: Order Rescheduling Hearing (hearing set for October 15 and 16, 2019; 9:00 a.m., Central Time; Panama City Beach, FL).
- PDF:
- Date: 06/11/2019
- Proceedings: Order Granting Continuance (parties to advise status by June 18, 2019).
- PDF:
- Date: 05/28/2019
- Proceedings: Notice of Serving Petitioner's Response to Respondent's First Set of Interrogatories, First Request for Admission, and Request for Production filed.
- PDF:
- Date: 05/17/2019
- Proceedings: Respondent's Response to Petitioner's First Request for Production filed.
- PDF:
- Date: 05/16/2019
- Proceedings: Respondent's Response to Petitioner's First Requests for Admission filed.
- PDF:
- Date: 05/16/2019
- Proceedings: Respondent's Notice of Service of Answers to Petitioner's First Interrogatories filed.
- PDF:
- Date: 04/30/2019
- Proceedings: Notice of Hearing (hearing set for June 20, 2019; 9:00 a.m., Central Time; Panama City, FL).
- PDF:
- Date: 04/29/2019
- Proceedings: Respondent's Notice of Service of Answers to Petitioner's First Interrogatories filed.
- Date: 04/26/2019
- Proceedings: CASE STATUS: Status Conference Held.
- PDF:
- Date: 04/23/2019
- Proceedings: Notice of Telephonic Scheduling Conference (scheduling conference set for April 26, 2019; 10:00 a.m.).
- PDF:
- Date: 04/16/2019
- Proceedings: Notice of Serving Petitioner's First Request for Production, First Request for Interrogatories and First Request for Admissions to Respondent filed.
Case Information
- Judge:
- YOLONDA Y. GREEN
- Date Filed:
- 04/15/2019
- Date Assignment:
- 04/16/2019
- Last Docket Entry:
- 09/08/2020
- Location:
- Panama City Beach, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO
- Suffix:
- PL
Counsels
-
Jasmine B. Green, Esquire
Bin C-65
4052 Bald Cypress Way
Tallahassee, FL 32399
(850) 558-9846 -
Cynthia Elizabeth Nash-Early, Esquire
Bin C-65
4052 Bald Cypress Way
Tallahassee, FL 323993265
(850) 558-9872 -
Brian A. Newman, Esquire
215 South Monroe Street, Suite 200
Post Office Box 10095
Tallahassee, FL 32302
(850) 222-3533 -
Kathryn Hood, Esquire
Address of Record