19-005303PL Department Of Health, Board Of Medicine vs. Berto Lopez, M.D. Status: Closed Recommended Order on Thursday, December 3, 2020.

Summary: Respondent violated section 458.331(1)(t), Florida Statutes (2017), and his license should be suspended for one year and his practice of medicine restricted to exclude surgeries and deliveries, as well as paying the costs of investigation and prosecution.

P RELIMINARY S TATEMENT

Petitioner, Department of Health, Board of Medicine (“Department” or

“Petitioner” ) , filed a one - count Amended Administrative Complaint

(“Complaint”) against Respondent, Berto Lopez , M.D. (“Dr. Lopez” or

“Respondent”) . Petitioner’s Complaint charged Dr. Lopez with one count of

violating section 458.331(1)(t), by committing medical malpr actice, as defined

in section 456.50, Florida Statutes.

Dr. Lopez filed an Election of Rights on July 5, 2019, disputing the

allegations of material fact contained within Petitioner’s Complaint and

requesting a formal hearing. On October 7, 2019, Petition er forwarded the

case to DOAH for assignment to an ALJ. By notice issued October 23, 2019, the case was scheduled for hearing December 2 and 3, 2019.

On November 22, 2019, Petitioner filed a Motion for Continuance. The

motion was granted, and the hearing was rescheduled for January 14 and 15,

2020. On January 3, 2020, Petitioner filed a second Motion for Continuance,

which was granted, and the hearing was rescheduled for March 4 through 6,

2020.

The hearing commenced on March 4, 2020, in West Palm Beach, Florida.

Petitioner’s Exhibits 1 and 2 were admitted into evidence, without objection,

and Petitioner’s Exhibit 5 was admitted, over objection. Petitioner presented two witnesses, Nurse Ryan Gavagni (“Nurse Gavagni”) ; and expert, Donald

Diebel, M.D. (“Dr. Diebel”), each of whom testified live at the hearing. Petitioner rested its case on March 4, 2020.

Dr. Lopez’s case - in - chief was scheduled to begin the following morning,

March 5, 2020, at 9:00 a.m. However, Dr. Lopez did not appear at the hearing

room at the appointed time. For several hours, Dr. Lopez’s whereabouts were

unknown, and Petitioner’s counsel was permitted to leave the hearing

location until further notice. At or around 11:00 a.m., the ALJ contacted

counsel for Petitioner to advise that he had been in contact with Respondent,

who alleged that he had overslept after taking Benadryl for a severe tooth -

ache in the middle of the night. After conferring with Petitioner’s counsel, the

ALJ continued the proceedings to a date to be determined the follo wing week.

On March 11, 2020, the ALJ issued an Order rescheduling the remainder

of the hearing for March 31, 2020, via video teleconference. On March 23,

2020, Dr. Lopez filed a m otion for c ontinuance, based on the C OVID - 19 crisis ,

and its alleged impedi ment on his new ly retained counsel’s ability to travel to

West Palm Beach from Alpharetta, Georgia, where she resides. The ALJ

granted the motion, and the matter was rescheduled for April 27, 2020. On

April 9 , 2020, Respondent’s counsel filed a second Moti on for Continuance,

requesting that the hearing be rescheduled due to travel restrictions from C OVID - 19. By Order dated April 21, 2020, the ALJ granted the motion and

rescheduled the hearing for June 19, 2020, by video teleconference. The matter was later noticed as a Zoom conference.

On April 1 6 , 2020, Respondent’s counsel filed a Motion for Admission of

Evidence, requesting that Dr. Lopez be allowed to offer the expert testimony

of Dr. David Feld, M.D. (“Dr. Feld”), in his case - in - chief. Petitioner objec ted to

this motion since Respondent had never disclosed an expert prior to the

hearing on March 4, 2020, and Petitioner had already rested its case. The

ALJ held a hearing on the matter, and on May 4, 2020, issued an Order

granting Respondent’s motion due to the fact that sufficient time existed prior to the rescheduled hearing to depose the newly - named expert; to allow

Petitioner’s expert to review the deposition testimony and offer rebuttal

evidence at hearing; and based upon the fact that such remedy wou ld thus

minimize, if not eliminate, any prejudice to the Department caused by the

new expert being disclosed. Pursuant to the Order, Respondent was required

to produce Dr. Feld for deposition prior to the hearing date, and Petitioner

would be permitted to reopen its case - in - chief to present additional testimony

at the final hearing. Petitioner took the deposition of Dr. Feld on May 20,

2020.

The final hearing was completed on June 19, 2020, via Zoom conference.

At hearing, Respondent’s Exhibits 1, 2, 5 , an d 6 were admitted without

objection. Respondent’s Exhibits 3 and 4 were admitted over objection.

Respondent presented two witnesses: Dr. Lopez and his expert, Dr. Feld, each

of whom testified live at the hearing. Petitioner’s Exhibit 6 was admitted over

ob jection.

The T ranscript of the hearing was filed with DOAH on July 6, 2020.

Respondent’s Proposed Recommended Order was filed on July 15, 2020, and

Petitioner’s was filed on July 16, 2020. Both proposed recommended orders have been duly considered in the preparation of this Recommended Order. All references to Florida Statutes are to the version in effect at the time of the

violations of law alleged in Petitioner’s Complaint, the 2017 codification.

F INDINGS OF F ACT

1. Petitioner is the state agency charg ed with the regulation of the

practice of medicine pursuant to section 20.43 and chapters 456 and 458,

Florida Statutes.

2. At all times material to these proceedings, Respondent was licensed as

a physician in the State of Florida and held license number ME50399.

3. Dr. Lopez immigrated to the United States with his family at a young

age from Cuba. Spanish is his first language , and he is completely fluent in

English. He attended primary and secondary schools in the United States. He graduated from the Un iversity of Georgia with a bachelor of science degree in

chemistry. He attended medical school at the Medical College of Georgia in

Augusta, Georgia, He completed his residency at Emory University in

Atlanta, Georgia. Dr. Lopez has been board - certified in obstetrics and

gynecology since 1990 , and was so certified at the time of the incident giving

rise to these proceedings.

4. At the time of the hearing, Dr. Lopez was employed by Palm Beach

Medical Group. He was seeing obstetrical and gynecological patients for “in -

office” only consultations and care. Although he has delivered over 10,000 babies and performed hundreds of obstetrical and/or gynecological surgeries

over the course of his more than 33 - year career, as of August 2017, he elected

to no longer deli ver babies or perform surgeries. His obstetrical patients are

now delivered by hospital - based obstetricians , and he refers out all patients

requiring surgery to other surgeons. He has voluntarily elected not to

reactivate his hospital privileges at any hos pital at this time.

5. The patient, O.C. (“O.C.”) , a 40 - year - old female, was admitted to Good

Samaritan Medical Center (“Good Samaritan”) on July 25, 2017. Good

Samaritan is a local community hospital. It is neither a trauma center nor a

teaching hospital.

6. On that same day, at approximately 8:03 p.m., Respondent delivered

the baby of O.C. after a scheduled induction.

7. During the delivery, O.C. suffered one or more cervical lacerations and

developed a postpartum hemorrhage.

8. Respondent performed a p ostpartum cervical exam at O.C.’s bedside

with a vaginal speculum. The medical records reflect that Respondent’s

visualization of the cervix during the exam was hampered by bleeding.

9. Respondent found multiple cervical lacerations, which he documented

that he repaired. However, O.C. continued to bleed heavily and her condition deteriorated.

10. By 8:40 p.m., O.C.’s blood pressure had fallen to 95/58. Despite her

worsening condition, Respondent delayed taking O.C. to the operating room

(“OR”) for surgi cal exploration.

11. At or around 9:40 p.m., O.C. was taken to the OR in an “unresponsive

state,” and Respondent performed a supracervical hysterectomy.

12. Following the surgery, blood was observed flowing from the incision in

O.C.’s abdomen. Responde nt chose not to reopen the surgical incision and

instead ordered the application of pressure dressings to treat the bleeding.

13. Even though O.C. was still bleeding, Dr. Lopez left the hospital at

approximately 11:42 p.m. Upon her arrival to the intensi ve care unit (“ICU”),

O.C.’s wound dressing was saturated with blood.

14. At approximately 3:00 a.m., on July 26, 2017, ICU nurses observed

blood “gushing” from the hysterectomy incision and from her vagina. Shortly

thereafter, O.C. experienced cardiac a rrest and expired.

Experts

15. Dr. Diebel, a highly accomplished physician, testified as a medical

expert for Petitioner. Dr. Diebel became licensed to practice medicine in

Florida in 1977. 1 During his practice, he maintained board certification in

obstet rics and gynecology from the American Board of Obstetrics and

Gynecology. Dr. Diebel has not practiced medicine for two years (although he was still engaged in his medical practice at the time of the incident giving

rise to these proceedings); has not acti vely managed a patient with

postpartum hemorrhage in over three years; has not participated in any

specialized simulated training in the treatment and management of

postpartum hemorrhages; is not affiliated with a similarly - situated local

community hospita l; and has only been affiliated with trauma and teaching

hospitals (where doctors and medical school residents are on site 24/7 and

operating rooms are staffed, equipped, and immediately accessible around

the clock).

16. Dr. Feld , also a highly accomplish ed physician, testified as an expert

for Respondent. Dr. Feld has practiced medicine in Florida since 1978. He

has maintained board certification in obstetrics and gynecology from the

American Board of Obstetrics and Gynecology since 1980. Dr. Feld testifi ed

that , with respect to each of the allegations contained in the Petitioner's

Complaint, Respondent met the standard of care , because he practiced

medicine with that level of care, skill, and treatment , which is recognized by

a reasonably prudent similar physician as being acceptable and appropriate

under similar circumstances.

Standard of Care

i. Failure to Take O.C. to the OR for Laceration Repair

17. Dr. Lopez testified that he had a clear and independent recollection of

the patient and the events surr ounding her delivery and post - delivery

treatment. She had been his patient for more than a decade , and he had

delivered her first child. The patient was of Cuban heritage. Dr. Lopez knew

the patient's husband, mother, and aunt, who is also a medical doctor . In

light of his personal relationship with the patient and her family, Dr. Lopez was motivated to perform at his highest professional level to assure a good

outcome. He canceled his office appointments and spent the day at the

hospital with the patient a nd her family.

18. O.C. suffered a small perineum tear

2 and cervical lacerations following

the delivery of her baby. Dr. Lopez performed an examination and repair of

the lacerations in the delivery room. He encountered difficulties during the

procedures b ecause of inadequate lighting and a view obstructed by bleeding.

He violated the standard of care when he failed to take O.C. to the OR when

these issues arose.

1 Dr. Diebel testified that he is currently retired.

2 Perineal tears are damage to the area between the vaginal opening and anus that occur

during vaginal delivery a nd can range in severity.

19. Bleeding following a delivery is normal, but heavy bleeding should

typically stop within a few minutes. Normally, if visualization is good,

repairing a cervical laceration takes two or three minutes.

20. Dr. Lopez repaired the small perineum tear and began the cervical

laceration repair at 8:10 p.m. At 8:30 p.m., the medical records reflect tha t he

remained at O.C.’s bedside and performed cervical repair.

21. Nurse Gavagni has a clear recollection of the events in this case, due

to the traumatic effect it had on her. This is the first and only maternal death

she had experienced in her eight yea rs working as an obstetrics nurse.

22. Nurse Gavagni assisted Dr. Lopez during his examination and repair

of O.C.’s cervical lacerations. Dr. Lopez requested that Nurse Gavagni use a

metal retractor because he was having a difficult time seeing inside th e

vagina. Dr. Lopez requests the use of a metal retractor in cervical laceration

repairs where he has difficulties seeing the upper and lower parts of the vagina.

23. A retractor is an L - shaped device used to hold the upper part of the

vagina.

24. Nurse Gavagni testified that the laceration repair took a while to

complete. As Dr. Lopez performed the repair, the bleeding was “kind of

heavy.” Dr. Lopez attempted to reduce the bleeding by placing mini lap pads

(“pads”) inside of O.C. to tamponade the cervix .

25. Tamponading is a technique whereby pads can be placed inside the

cervix, similar to a tampon, to determine whether bleeding is coming from

the cervix or somewhere else.

26. Nurse Gavagni stated that the delivery tray is usually prepared with

ten p ads on it.

27. During the repair, 20 soaked pads were weighed to estimate O.C.’s

blood loss. The records indicate that the weight of the soaked pads was 526

grams or ccs. This estimate did not include blood collected in the bag and

under O.C.’s bottom.

28. Dr. Diebel testified that the use of a pad to reduce bleeding for a

moment to visualize the cervix and repair it is reasonable; however, the use

of 20 pads suggests enough bleeding to move a patient into the OR to

evaluate and perform the repair.

29 . Dr. Lopez claims that he only used one or two of the pads to

tamponade the cervix, and the others were used to “blot” the vagina.

Furthermore, he asserts that most of the pads were not “soaked” but “soiled.” Tr., p p . 393 - 395 .

30. Dr. Lopez’s testimony is not credible because the records clearly reflect

that 20 “soaked” pads were weighed. Additionally, Nurse Gavagni confirmed

that the soaked pads were used and weighed at or around the time that

Dr. Lopez performed the repair.

31. The evidence is clear and convincing that 20 pads were soaked after

being used during the laceration repair because Dr. Lopez was having trouble visualizing the cervix due to heavy bleeding .

32. In addition to bleeding, Dr. Lopez experienced issues with lighting in

the delivery ro om during the laceration repair.

33. Nurse Gavagni testified that the timer on one of the overhead lights

was broken, and it had to be supplemented with a portable light on wheels.

She described the portable light as a “spotlight.” During the repair, the

portable light was knocked over several times, causing Dr. Lopez to ask

everyone to leave the room. Furthermore, the charge nurse was called in to

hold the timer on the broken light so that it would stay on. The evidence is clear and convincing that the br oken light was problematic during laceration

repair.

34. According to Dr. Diebel, good, sustained lighting is necessary when

repairing a cervical laceration. Additionally, there should be no obstruction

between a physician’s vision and the cervix.

35. D r. Diebel also testified that lighting in an OR is better than that in a

delivery room. This would certainly be true in a delivery room with a

malfunctioning light. In this instance, Dr. Lopez needed to take O.C. to the

OR to perform a thorough pelvic exam to ascertain the source of the bleeding.

36. Dr. Diebel testified clearly and credibly that the exam and repair could

not be performed adequately in the delivery room, given the circumstances.

The continued bleeding and inadequate lighting should have pro mpted

Dr. Lopez to take O.C. to the OR to ascertain the source of the bleeding.

Dr. Lopez’s failure to do so violated the standard of care.

37. In formulating his opinion in this case, Dr. Diebel acknowledged that

the standard he applied was that level of care, skill , and treatment, which, in

light of all the relevant surrounding circumstances, is recognized as

acceptable and appropriate by a reasonably prudent, similar healthcare

provider, or what the average obstetrician / gynecologist would do under

simil ar circumstances.

38. Dr. Lopez testified that the malfunctioning timer was part of a

“decorative” light located over the head of the delivery bed. The light was not

useful to him because he spent most of his time at the “south end” (the foot)

of the bed. Dr. Lopez claims that the light may have been useful to Nurse

Gavagni because she was probably taking the patient’s vitals and entering

notes into the computer at the head of the bed.

39. Dr. Lopez’s testimony is inconsistent and not credible. On the one

h and, he testified that Nurse Gavagni assisted in the repair by holding the

retractor. Then when questioned about lighting, he stated that she was

probably taking vitals and entering notes.

40. Nurse Gavagni testified clearly and credibly that she helped Dr. Lopez

during the repair by holding the retractor. She never mentioned that the

inadequate light interfered with her ability to take O.C.’s vitals or enter

information in the computer. Her testimony about the lighting issue was in

the context of Dr. Lop ez’s exam and laceration repair.

41. Dr. Feld testified that constant, adequate light, without obstruction, is

necessary during a cervical laceration repair, and blood gushing out of the

vagina can interfere with visualization of the cervix. Dr. Feld wou ld take a

patient to the OR for a laceration repair if he could not stop the bleeding. He

admitted that he has no personal knowledge of what Dr. Lopez’s visualization

was at the time of his repair of O.C.’s lacerations.

42. The evidence is clear and convi ncing that Dr. Lopez had trouble

visualizing O.C.’s cervix during the laceration repair due to bleeding and inadequate lighting. He violated the standard of care by failing to take O.C.

to the OR to better evaluate the source of the bleeding and to perform the

repair.

ii. Delay in Taking O.C. to the OR

43. Following the laceration repair, O.C. continued to bleed and her

condition quickly deteriorated. Still, Dr. Lopez delayed taking O.C. to the OR

to address the bleeding.

44. By at or around 8:40 p.m., O.C. had received fundal massage 3 and

various medications, including Pitocin 4 and Hemabate , 5 to stop the bleeding.

Yet, she continued to bleed and began exhibiting deteriorating vital signs.

45. At 8:45 p.m. , O.C.’s blood pressure was 95/58, and she was vomiting.

O.C. was hypotensive, 6 tachycardic, 7 hypoxic, 8 and starting to turn gray. By

8:57 p.m., her blood pressure dropped to 66/46, and she was minimally responsive.

46. If Dr. Lopez had, as he testified, repaired the cervical lacerations,

sewed the p erineal tear, and administered proper medications, and O.C.

3 Fundal massage, also called uterine massage, is a technique used to reduce bleeding and

cramping of the uterus after childbirth.

4 Pitocin is a natural hormone that causes the uterus to contract and can be used after

childbirt h to control bleeding.

5 Hemabate is the brand name for the drug c arboprost. Carboprost is a synthetic

prostaglandin with oxytocic properties. It is used to reduce bleeding during postpartum

hemorrhage.

6 Hypotensive is r elating to or suffering from abnorm ally low blood pressure.

7 Tachycardia is a rapid heartbeat that may be regular or irregular, but is out of proportion

to age and level of exertion or activity.

8 Hypoxia is a condition in which the body or a region of the body is deprived of adequate

oxyg en supply at the tissue level.

continued to bleed, there was nothing left to do except take her to the OR.

Continued attempts at treating O.C. were futile until the source of her

bleeding was addressed.

47. Dr. Diebel testifie d that had Dr. Lopez taken O.C. to the OR to

evaluate the bleeding when attempting the laceration repair, as the standard

of care required, he could have addressed O.C.’s deteriorating condition more

appropriately. Since he did not take her to the OR at th at time, he should

have been prompted to take her at or around 8:30 p.m. Instead, Dr. Lopez

waited another hour before making the decision to take O.C. to the OR.

48. Dr. Lopez claims that from 8:45 p.m. to 9:25 p.m., he was waiting for

an available OR an d an anesthesiologist. This testimony is inconsistent with

Nurse Gavagni’s recollection of the events and is also refuted by the medical records.

49. Nurse Gavagni testified that there was no wait for an OR that

evening. On the Labor and Delivery floor at Good Samaritan, there was

always one OR ready for an emergent patient. On the evening of this

incident, an OR was available for O.C.

50. When describing the OR , Nurse Gavagni stated that it is “never left

completely unprepared most of it is set up, and then all the scrub tech does

is go in and open the tools and scrub and get dressed.” She also noted that

hysterectomy trays were readily available.

51. The medical records do not reflect that there was any delay in taking

O.C. in for surgery based on the unavailability of an OR.

52. Dr. Diebel agreed with Nurse Gavagni’s testimony that most hospitals

have one OR that is reserved and available for emergencies.

53. Dr. Feld testified that when he worked at Good Samaritan, he

could get emergency c esarean s ection patients into the obstetrics OR within

15 to 20 minutes.

54. The evidence is clear and convincing that an OR was available for O.C.

that evening.

55. Dr. Lopez’s claim that he was waiting on an anesthesiologist between

8:45 p.m. and 9:25 p.m. als o falls short of being accurate because the medical

records reflect that anesthesia was not even called until 9:25 p.m.

56. Dr. Lopez attempted to minimize O.C.’s failing condition by alleging

that she stopped bleeding at certain times prior to being tak en to the OR.

However, Nurse Gavagni testified clearly and credibly that O.C. never

stopped bleeding and continued having at least a moderate trickle, or a

continuous light to moderate stream. This is clearly supported by the records

which indicate a consi stent deterioration of her vitals from 8:45 p.m. to

9:25 p.m.

57. Dr. Lopez also attempted to minimize O.C.’s condition by noting that

her blood pressure was 118/52 at 9:30 p.m., shortly before she was taken to

the OR.

58. Dr. Diebel believes that O.C.’s blood pressure reading at 9:30 p.m. was

a spurious result. This is based upon the fact that two minutes before that reading, at 9:28 p.m., O.C.’s blood pressure was 67/32. Furthermore, for the

preceding hour, her blood pressure had gradually worsened, wit hout any

signs of significant recovery. Dr. Diebel stated that the blood pressure

reading at 9:30 p.m. did not make physiologic sense, given O.C.’s condition,

and it certainly, in and of itself, did not mean that she should not have been

taken into surgery .

59. Dr. Lopez testified that in a postpartum hemorrhage, the rapid

response team should be called if the patient experiences a change in vital signs and hemodynamic instability.

60. Rapid response is a protocol that can be initiated when trying to

pr event a patient from coding (dying). A rapid response team provides a physician with additional staff, like more nurses and/or other specialties, to

assist in treating an emergent patient.

61. In this case, the records reflect that rapid response was not called

until 9:25 p.m., more than 40 minutes after O.C.’s vitals began to deteriorate.

Thus, by Dr. Lopez’s own admission, there was a delay in treating O.C.

62. O.C. was not taken to the OR until 9:38 p.m., approximately one hour

and 45 minutes after t he bleeding first began. When she arrived in the OR ,

she was cold, clammy , and had blood gushing from the vaginal canal.

63. Dr. Diebel testified that by the time she was taken to the OR , O.C. was

in irreversible shock.

64. Once in the OR , O.C.’s surge ry was further delayed because Dr. Lopez

had to wait on his supervising physician, Dr. Alfred Tomaselli.

65. Pursuant to a prior Board Order in effect at the time of this incident,

Dr. Lopez was restricted from performing any surgical procedures without

su pervision by another board - certified obstetrician. Therefore, Dr. Lopez

could not operate on O.C. until a supervising physician arrived at the OR

that evening.

66. Nurse Gavagni recalled calling Dr. Tomaselli from the OR to find out

where he was. This is corroborated by the records which show that O.C.

arrived at the OR at 9:38 p.m., but the first incision did not occur until

10:01 p.m.

67. Dr. Feld believes that Dr. Lopez’s timing in taking O.C. to the OR was

“absolutely perfect,” even though the outco me was unfortunate. He testified

that O.C.’s condition would not have changed if Dr. Lopez had taken her into the OR sooner because she was already in a downward spiral, due to DIC.

9

He claims that O.C. had signs of DIC as early as her admission to Good

Sa maritan.

68. Dr. Diebel disagrees with Dr. Feld’s belief that O.C. was in DIC at the

time of her admission , since there is no evidence in the medical records to

9 DIC, or disseminated intravascular coagulation, is a condition affecting the blood's ability to

clot and stop bleeding.

support that position. Additionally, he stated that he was not convinced that

O.C. experienced DIC prior to or after the hysterectomy.

69. Dr. Diebel vehemently disagreed with Dr. Feld’s assertion that taking

the patient to the OR earlier would not have made any difference in her

outcome. He testified clearly and credibly that O.C.’s condition de teriorated

steadily, which could have been avoided had Dr. Lopez taken her to the OR

sooner.

70. Dr. Lopez attempted on several occasions to place blame on Good

Samaritan Hospital for lack of preparedness related to treatment for

postpartum hemorrhage. H e also emphasized that Good Samaritan is a

community hospital lacking the capabilities of an academic center like

Orlando Regional, or a trauma facility. Yet, the record clearly reflects that

nothing prevented him from taking O.C. to the OR sooner. Additio nally, no

evidence was offered to show that Good Samaritan lacked the necessary

medications, infrastructure, or equipment to adequately address O.C.’s

condition.

71. In light of all of the above, the evidence is clear and convincing that

Dr. Lopez fell b elow the standard of care by not taking O.C. into the OR

sooner.

iii. Performance of Supra c ervical Hysterectomy Instead of Total Abdominal

Hysterectomy

72. At 9:40 p.m., O.C. consented, in writing, in both English and Spanish,

to a total abdominal hystere ctomy (“TAH”). O.C. and her husband were made

aware that, after a TAH, they would not be able to have any more children.

They responded that they did not intend to have any more children. The

consent O.C. signed included an acknowledgement that other surgi cal

procedures might become necessary.

73. A TAH is the surgical removal of the cervix and the uterus. 74. Instead of performing a TAH, Dr. Lopez performed a supracervical

hysterectomy.

75. A supracervical hysterectomy is the surgical removal of the to p part of

the uterus, leaving the cervix in the patient.

76. Dr. Lopez testified that he performed a supracervical hysterectomy

because it is a quicker procedure than a TAH.

77. This statement is inconsistent with testimony he gave in a prior

depositio n, wherein he stated that a supracervical hysterectomy is “more

surgery” and takes more time to perform than a TAH.

78. When confronted with this discrepancy, Dr. Lopez claimed that his

prior testimony was “wrong” and must have been a “typo” on the part of the

court reporter. However, in the deposition, Dr. Lopez provided a detailed

explanation as to why a supracervical hysterectomy takes longer than a TAH,

clearly showing that it was not a typo.

79. Dr. Lopez does not have ICU privileges at Good Samarita n.

Accordingly, he delegated the follow - up care for O.C. to Dr. Reynold Duclas,

the anesthesiologist who was present in the OR for the surgery and

afterwards, and to Dr. Tanvir Salaam, the intensivist who appeared via

telemedicine . Dr. Lopez then left Good Samaritan to return home to find

some clean clothes. Dr. Lopez believed the patient was stable and in good

hands when he left Good Samaritan.

80. Dr. Lopez stayed near his cell phone when he returned home and was

available when he received a call from the hospital at 3:04 a.m. He returned

to the hospital where he found O.C. in the ICU bed and the code was in

progress. He ended the code because the patient had died.

81. While O.C. was in the ICU, blood was drawn for lab work at 1:20 a.m.

At about 2:22 a. m., the ICU received an emergency critical value telephone

call that the patient’s lab work was abnormal , and that she had developed

DIC . Dr. Lopez did not receive a call from the lab or the hospital until the

3:04 a.m. call described above, which was when the patient was coding.

82. An autopsy was performed that confirmed O.C. had died from DIC.

Dr. Lopez testified, and the evidence reflects, that while he was actively

managing the patient, no bloodwork had indicated she was suffering from

DIC. This testim ony conflicts with Dr. Feld’s testimony that there was

nothing Dr. Lopez could have done because O.C. was already in a “downward

spiral” due to DIC.

83. Dr. Lopez testified that, based on lab work performed at 1:20 a.m.,

“the patient had never sustained a hypoxic injury to her liver, she had not sustained a hypoxic injury to her kidneys, that she had not sustained, on the basis of the clinical parameters, any irreversible damage from the time of the

surgery.” The patient had, in fact, showed :

evidence that her brain was functioning [s]he

started to show purposeful movement and followed

instructions for movement by a nurse that her

cerebral cortex and her mechanical physical being

was capable of movement from the brain to the muscles. That her kidney functi on was improving

was evidenced by the fact that the blood that she had once sustained in her urine had cleared and

she was making urine. At no time did the delay in

taking her to the operating room cause irreversible

hypoxia, irreversible unsustainable con ditions that

would lead to her death.

84. Dr. Diebel testified that Dr. Lopez should have performed a TAH in

this case , because it would have prevented the potential for any additional

bleeding following the surgery. He explained that after performing a T AH, a

physician must sew together the front wall and back wall of the vagina. He

described this as “very straightforward,” and less likely to lead to “bad

bleeding.” In comparison, when performing a supracervical hysterectomy, the

physician must sew over t he cervical stump, which consists of more substance

to cinch down and suture.

85. Additionally, based on the circumstances during the laceration repair,

Dr. Diebel noted that it was not clear that the cervix was not still a source of

bleeding. This compl ements and supports his opinion that a TAH should have

been performed to ensure cessation of bleeding.

86. Dr. Diebel testified clearly that the appropriate standard of care

required that Dr. Lopez perform a TAH and not a supracervical

hysterectomy.

87 . Another reason Dr. Lopez offered for performing a supracervical

hysterectomy was that the procedure was less likely to expose another organ

to injury. He claimed that O.C. had a hematoma involving the lower uterine

segment, and this affected his decision not to perform a TAH.

88. In his operative note (“op note”) for this procedure, Dr. Lopez did not

identify a hematoma as the reason for performing a supracervical

hysterectomy over a TAH. The only mention of a hematoma appears after the

removal of the u terus. Therefore, it could not have affected Dr. Lopez’s

decision - making in performing a supracervical hysterectomy.

89. Dr. Feld does not remember if there was a hematoma noted in Dr.

Lopez’s op note, but he believes that performance of a supracervical

hysterectomy was appropriate because it is quicker and safer, given the

swelling and blood clots around the cervical vaginal junction following delivery.

90. Dr. Diebel challenged Dr. Lopez’s claims that a hematoma on the

lower uterine segment affected h is decision to perform a supracervical

hysterectomy. Dr. Diebel pointed out that the op note specifically states that the bladder flap was taken down easily, and a hematoma was not noted until

after Dr. Lopez removed the top of the uterus. As a result, Dr. Lopez could

have performed a TAH without concern of a hematoma.

91. When asked why the hematoma appeared in his op note after the

uterus was already removed, Dr. Lopez claimed that his dictation may not

have been “in sequence.” He testified that “a dicta ted operative note may

indicate abnormal findings that may not be in sequence to the procedure that

is performed.” He also stated that whether an op note is written in sequence

“depends on the op note and depends on the circumstance.”

92. Dr. Feld disagr eed with Dr. Lopez and stated that op notes should be

dictated in the sequence that the procedure is performed, from start to finish.

93. Dr. Diebel testified that he has never heard of a surgeon dictating an

op note that is not in sequence with the orde r in which the surgery was

performed. He does n o t know how a surgeon would “get it out of order.”

94. Dr. Lopez’s attempt to justify his decision to perform a supracervical

hysterectomy instead of a TAH is clearly self - serving and discredited by the

medi cal records and expert testimony of Dr. Diebel.

95. The evidence is clear and convincing that Dr. Lopez fell below the

standard of care by performing a supracervical hysterectomy instead of a

TAH.

iv. Leaving the Hospital

96. Dr. Lopez left the hospital immediately following the surgery, even

though O.C. was still in critical condition.

97. Nurse Gavagni testified that during O.C.’s surgery, the

anesthesi ologist was unable to obtain a blood pressure and could only

report a heart rate and respiratory rate . This suggests that O.C.’s condition

was extremely perilous.

98. Dr. Lopez completed the procedure at or around 11:00 p.m.

99. Soon after the surgery, while O.C. was still in the OR , Nurse Gavagni

noticed blood coming from the incision site and reporte d it to Dr. Lopez.

Dr. Lopez opted not to reopen and instructed Nurse Gavagni to pressure

dress the wound and put ice on it. He also ordered an abdominal binder to be

applied.

100. Despite the bleeding and critical condition of his patient, Dr. Lopez

left the hospital at or around 11:39 p.m.

101. At 11:42 p.m., O.C. was transferred to the ICU. When O.C. arrived in

the ICU, the dressing on her wound was soaked with blood.

102. In the ICU, O.C. came under the care of Dr. Sala a m, the intensivist.

Dr. Sal a am was available via telemedicine and not physically present at the

hospital.

103. Dr. Lopez testified that he left the hospital because the leg of his

scrubs was contaminated with blood, and his left sock and shoe also had

blood in them. He claims that there were no other scrubs available to him at

Good Samaritan. He did not check to see whether there were any scrubs

available on other floors of the hospital, and he did not call anyone in the

hospital to ask for clean scrubs.

104. Dr. Feld testified th at he would not have left the patient that

evening. Also, he would not have left the hospital and gotten into his car with

blood all over his scrubs. Additionally, he has never been in a situation where

he could not access a clean pair of scrubs at the hos pital and believes that

most hospitals have extra scrubs for physicians.

105. Dr. Diebel stated that hospitals normally have scrubs “everywhere” --

in the emergency room, in the main OR, in radiology, etc. He believes that Dr. Lopez could have obtained cle an scrubs without having to leave the

hospital that night. In his long career, Dr. Diebel never had to go home to

change his scrubs.

106. Dr. Diebel testified that Dr. Lopez violated the standard of care when

he left the hospital that evening, given O.C. ’s critical condition. Although

O.C. was taken to the ICU, no one on the ICU team was a surgeon.

Additionally, the intensivist in charge that evening was not even physically

present in the hospital. Dr. Lopez should have remained at the hospital in

case O. C. had to be taken back into surgery because he was her physician

and the only surgeon present.

107. Dr. Lopez maintained that pursuant to Florida Administrative Code

Rule 64B8 - 9.007, he was permitted to delegate some of his duties to another

qualified m edical doctor, which is exactly what he did in this case when he

left the patient in the ICU. He also noted that the anesthesiologist

volunteered to stay with the patient following the surgery to monitor her

recovery.

108. Rule 64B8 - 9.007, which relates to Standards of Practice and

Delegation of Duties, states, in pertinent part, that “the operating surgeon

can delegate discretionary postoperative activities to equivalently trained

licensed doctors of medicine or osteopathy … . Delegation to any health ca re

practitioner is permitted only if the other practitioner is supervised by the

operating surgeon or an equivalently trained licensed doctor of medicine or

osteopathy.”

109. Dr. Lopez testified that he appropriately delegated responsibility to

the ICU i ntensivist and anesthesiologist. However, he also admitted that

neither the intensivist, nor the anesthesiologist, was a trained surgeon who

could have taken the patient back to the OR. In fact, there were no surgeons in the ICU at that time. Thus, his arg ument that he delegated to an

equivalently trained doctor fails.

110. The evidence is clear and convincing that Dr. Lopez fell below the

standard of care by leaving the hospital while O.C. remained in critical

condition.

Prior Discipline

111. At all time s material to this incident, Dr. Lopez was restricted from

performing any surgical procedure without a supervising physician, pursuant

to a prior Board Order.

112. The prior Board Order, related to DOH case number 2014 - 15022

(“2014 case”), resulted from allegations that Dr. Lopez violated the standard of care in his treatment of two obstetrics patients.

113. The 2014 case involved two obstetrics patients who suffered

complications from postpartum hemorrhage. The Administrative Complaint alleged, among o ther things, that Dr. Lopez committed medical malpractice

by failing to timely assess, diagnose , and perform exploratory surgery. P et .

Ex. 6 .

114. As is true in this case, one of the patients in the 2014 case died.

115. When asked about the 2014 case, Dr . Lopez was evasive and

defensive. He claimed that he did not recall why his license was restricted.

Then, when asked several times whether the 2014 case resulted in a patient’s

death, he refused to answer directly, until prompted by the ALJ.

116. Dr. Lo pez was also disciplined by the Board in 2003, in DOH case

number 2003 - 13635 (“2003 case”). The Administrative Complaint in that case

alleged that Dr. Lopez fell below the standard of care in his performance of a

uterine dilation and curettage (D&C). Speci fically, the Administrative

Complaint alleged that Respondent failed to perform complete evacuation of

a patient’s uterus and failed to give appropriate follow - up care when the

patient spontaneously expelled fetal tissue.

117. As a result of the 2003 cas e, a fine of $10,000 was imposed on

Dr. Lopez , and he was required to complete CMEs (continuing medical

education credits) and perform community service.

118. Despite Dr. Lopez’s history with the Board and O.C.’s death, he

refused to take direct responsi bility for any of his shortcomings. When asked

whether he felt at all responsible for O.C.’s death, Dr. Lopez placed the blame

on the ICU staff and hospital system.

C ONCLUSIONS OF L AW

119. DOAH has jurisdiction over the subject matter and the parties to this

action pursuant to sections 120.569 and 120.57(1), Florida Statutes (2019).

120. This is a proceeding whereby Petitioner seeks to revoke Respondent’s

license to practice medicine. Petitioner has the burden to prove the

allegations in its Complaint b y clear and convincing evidence. Reich v. Dep’t

of Health, 973 So. 2d 1233, 1235 (Fla. 4th DCA 2008) ( citing Dep’t of Banking

& Fin. v. Osborne Stern & Co. , 670 So. 2d 932, 933 (Fla. 1996) ) ; and Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987). As stated by the Supreme Court of

Florida :

c lear 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. 20 05) (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; however, “it seems to preclude evidence that is ambiguous.” Westinghouse Elec. Corp. v. Shuler Bros ., Inc. , 590 S o. 2d 986,

988 (Fla. 1st DCA 1991).

121. Because the Medical Practice Act, section 458.331 authorizes

suspension or revocation of a professional license, it is penal in nature and

must be strictly construed in favor of the licensed physician. Breesmen v.

Dep’t of Prof’l Reg., Bd. of Med . , 567 So. 2d 469, 471 (Fla. 1st DCA 1990).

122. A hearing involving disputed issues of material fact under section

120.57(1) is a de novo hearing , and Petitioner's initial action carries no

presumption of correctness. § 120 .57(1)(k), Fla. Stat.; Moore v. Dep’t of HRS ,

596 So. 2d 759 (Fla. 1st DCA 1992).

123. The Board of Medicine's Standards of Practice under rule 64B8 -

9.007(4) interprets the standard of care requirement of section 458.331(1)(t)

and the delegation of duties restriction of section 458.331(1)(w) with regard to

surgery and, in relevant part, states as follows:

[t]he operating surgeon can delegate discretionary

postoperative activities to equivalently trained licensed doctors of medicine or osteopathy … .

Delega tion to any health care practitioner is

permitted only if the other practitioner is supervised by the operating surgeon or other equivalently trained licensed doctor .

12 4 . Petitioner’s Complaint charges Respondent with violating

section 458.331(1)(t). Florida law recognizes that physicians owe their

patients a duty to “use the ordinary skills, means, and methods that are

recognized as necessary and which are customarily followed in the particular

type of case according to the standards of those who are qualified by training

and experience to perform similar services in the community or in a similar

community.” Brooks v. Serrano , 209 So. 2d 279, 280 (Fla. 4th DCA 1968). The

Board may discipline a physician for “failure to practice medicine with that

level of care, skill, and treatment which is recognized by a reasonably

prudent similar physician as being acceptable under similar conditions and

circumstances.” §§ 458.331(1)(t) and 456.072(2), Fla. Stat.; See also Fox v.

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

458.331(1)(t) further provides, “The board shall give great weight to the

provisions of s. 766.102 when enforcing this paragraph.” Section 766.102(3),

Florida Statutes, provides, “ [t] he existence of a medical injury shall not

c reate any inference or presumption of negligence against a health care

provider, and the claimant must maintain the burden of proving that an

injury was proximately caused by a breach of the prevailing professional

standard of care by the health care provi der. ”

12 5 . Respondent argues that in order to prove that he breached the

requisite standard of care, Petitioner must first establish what the standard

of care requires with respect to each of these alleged acts. Petitioner’s expert's (Dr. Diebel’s) opinion , Dr. Lopez argues, as to what he personally (as opposed

to what reasonably prudent similar healthcare providers) would do in a particular case is insufficient to prove Respondent failed to meet the proper

standard of care. Petitioner fell short of making the necessary showing,

argues Respondent.

12 6 . The gist of Respondent’s argument as to why Dr. Diebel’s expert

testimony should be discounted, at least, or totally discredited, at most, is

that his career was spent largely at a teaching hospital, Orlando Health, with

full trauma, medical/surgical, and other tertiary services, rather than, as is

the case with Dr. Lopez here, a smaller community hospital such as Good

Samaritan. T his case concern s obstetrical services and the aftercare of

mothers and newborns following delivery. This was not a case of a trauma

patient being brought to a hospital ill equipped or even licensed to provide

tertiary care to patients presented following an accident or major medical

event. The patient in this matter was known by Resp ondent who had

previous experience with her and her family, all without incident. The labor

and delivery of the patients’ baby was uneventful in terms of its duration,

complexity , and the fact that no complications arose immediately after a

healthy baby wa s delivered. Any hospital providing obstetrical services must

be equipped to deal with a labor and delivery, the possibility of a c esar e an

section, complications with the placenta, blood pressure anomalies, and other

routine pre - delivery and aftercare that is customarily provided to mothers

and their newborn babies in a community hospital such as Good Samaritan, a regional hospital, or a major teaching hospital such as Orlando Health.

12 7 . What happened in this tragic case is that, while the patient ’ s

bleed ing seemed to be under control, in Respondent’s opinion, following an

internal examination and normal bleeding control methods employed by Dr. Lopez post - delivery, her condition deteriorated during the night, after

Dr. Lopez had left the hospital ostensibl y because he could not find clean

scrubs and did not have a set of clean clothes with him in his car, a locker, or

anywhere he could readily access them. Moreover, the supracervical

hysterectomy performed by Respondent was not more appropriate than a

TAH i n this case. Further, the autopsy performed after the patient died

during the early hours of the morning showed conclusively the patient developed or had come to the hospital with DIC. This blood condition led to

her uncontrollable bleeding and, ultimately , her death, and, apparently, was

not discovered in time to save her life, either because of a delay from the

laboratory or due to medical negligence on Respondent’s part.

12 8 . Respondent should not have left his patient alone in the hospital for

the nigh t, even if his clothes were covered in blood and needed changing. I t is

hard to imagine that a hospital, even a community hospital, did not have a

spare set of scrubs to fit Dr. Lopez . E ven assuming th is wa s entirely accurate ,

it does not excuse his leavin g to change and not returning as soon as possible

to the hospital where he may (or may not) have been able to save his patient.

While she may have died regardless of his retu r ning to the hospital , while

she was still alive and her blood pressure and overal l condition were

deteriorating, leaving her with just an experienced and dedicated nurse along

with an anesthesiologist in house and an intensivist who was available only

via telemedicine fell below the standard of care for a physician with his level

of ex perience, personal knowledge of the patient and her family, and the

knowledge that the hospital was not fully staffed during the overnight shift.

12 9 . Respondent even tries to bring into the discussion the fact that,

during this time of the COVID - 19 pande mic (which came to light in 2020,

three years after the incident at issue), there is a shortage of personal

protective equipment , and this might somehow correlate with his having to

leave the hospital in 2017 to properly wash and change clothes. The plain fact

of the matter is that Dr. Lopez did not go home, change, and return to

continue to care for his patient. Even Respondent’s own expert, Dr. Feld, a

physician with 45 years of relevant experience, testified that he would not

have left the hospital under these circumstances with a patient he knew and

had cared for over many years.

1 30 . Petitioner proved by clear and convincing evidence that Respondent

violated section 458.331(1)(t), as outlined in the Complaint.

1 31 . At all times material to Petitioner ’s Complaint, section 458.331(1)(t)

subjected a licensee to discipline for committing medical malpractice as defined in section 456.50.

13 2 . Pursuant to section 456.079, the Board of Medicine has adopted

r ule 64B8 - 8.001. The rule provides notice of the di sciplinary penalties

typically imposed for violations of section 458.331.

13 3 . At all times material to Respondent’s malpractice at issue in this

case, the penalty authorized for a violation of section 458.331(1)(t), second

offense, ranged from two years’ probation to revocation or denial and an

administrative fine from $5,000 to $10,000.

13 4 . The rule also provides aggravating factors to consider should a

penalty outside the disciplinary guidelines be recommended. The following

aggravating factors apply in this case:

Exposure of the patient to injury or death. The

evidence clearly demonstrates that O.C. expired

because of Dr. Lopez’s malpractice.

¤ Disciplinary history of the licensee. Dr. Lopez

was previously disciplined by the Board for standard of care violations in 2003 and 2014. The

2014 case involved allegations that were almost

identical to the circumstances in this case and involved a patient death.

13 5 . The remedial measures instituted by the Board of Medicine after the

2014 disciplinary case obviously did not affect the way in which Dr. Lopez

practices.

13 6 . The events giving rise to this matter demonstrated that Dr. Lopez

delivered a healthy baby to a mother who had been a long - term patient of his.

During the delivery, the mother suffered c ervical lacerations and developed a

postpartum hemorrhage. Dr. Lopez initially took appropriate steps to control

the bleeding, repair the lacerations , and perform a hysterectomy (although

performing a TAH would probably have stemmed the tide of the blood l oss,

while the supracervical procedure only paused it) on the mother. However,

his leaving the hospital at a time when he believed everything to be under

control and the time had come for him to go home, clean up , and go to sleep

for the night was where hi s failure to complete his care for his patient led,

ultimately, to her untimely death. Had he returned to the hospital after

cleaning up, he might have saved his patient. Perhaps, his patient still would

not have survived, but we will never know that becau se Respondent left her

to go home. He may have been tired after a long day. He may have, in good

faith, believed that everything was going to be all right and was under

control. The fact is, the experts agreed they would have stayed with the

patient until they were certain she was in no further danger from her delivery, her postpartum bleeding, and her surgery.

13 7 . Since August of 2017, Dr. Lopez has elected to no longer deliver

babies or perform surgery. His obstetrical patients are now delivered by

hos pital - based obstetricians , and he refers all patients requiring surgery to

other surgeons. He has voluntarily elected not to reactivate his hospital

privileges at any hospital at this time.

13 8 . In light of the guidelines and the applicable aggravating f actors

outlined above, but also in light of the mitigating factor that he self - imposed

upon his practice, Respondent’s license to practice medicine should be suspended for one year , and, following the suspension, he should be

prohibited from delivering bab ies and performing surgery, as he has

voluntarily chosen to do since 2017.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Department of Health, Board of Medicine , enter a

final order:

i. Finding t hat Respondent, Berto Lopez, M.D., violated section

458.331(1)(t), Florida Statutes (2017), as charged in Petitioner’s Amended Administrative Complaint;

ii. Suspending Respondent’s license to practice medicine in the State of

Florida and limiting his prac tice following his term of suspension as set forth

in paragraph 13 8 above; and

iii. Imposing costs of investigation and prosecution.

D ONE A ND E NTERED this 3rd day of December , 2020 , in Tallahassee, Leon

County, Florida.

R OBERT S. C OHEN

Administrativ e 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 3rd day of December , 2020 .

C OPIES F URNISHED :

Corynn Colleen Alberto, Esquire Sarah E. Corrigan, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Elena Ris, Esquire

205 Chelsey Circle

Alpharetta, Georgia 30004

(eServed)

Louise St. Laurent, General Counsel

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3565

(eServed)

Claudia Kemp, J.D., Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way, Bin C - 03

Tallahassee, Florida 32399 - 3253

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Recomm ended

Order should be filed with the agency that will issue the Final Order in this

case.