98-002036 Board Of Medicine vs. Ashok M. Patel Status: Closed Recommended Order on Wednesday, December 30, 1998.

Summary: Psychiatrist did not fail to meet standard of care by not hospitalizing patient who later committed suicide.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, }

}

)

Petitioner, )

)

vs. ) Case No. 98-2036

)

ASHOK M. PATEL, M.D., )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on August 19-21, 1998, in Tampa, Florida, before Richard A.

Hixson, a duly designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kristina Sutter, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Post Office Box 14229

Tallahassee, Florida 32317

For Respondent: A. S. Weekley, Jr., M.D., Esquire

Holland & Knight

520 Vonderburg Drive, Suite 3005

Brandon, Florida 33511

STATEMENT OF THE ISSUES

The issues for determination in this case are whether

Respondent's license to practice medicine should be revoked or

otherwise disciplined for the reasons set forth in the

Administrative Complaint, specifically for: 1) Respondent's

failure to meet the acceptable standard of care for psychiatry in

not immediately admitting patient J.R. to an intensive in-patient

care facility; 2) Respondent's failure to justify his failure to

admit patient J.R. to an intensive in-patient care facility; and

3) Respondent's failure to maintain records which state why

patient J.R. was not admitted to an intensive in-patient care

facility.

PRELIMINARY STATEMENT

This case arises from the suicide of J.R., a patient of

Respondent, Ashok M. Patel, M.D., a practicing psychiatrist whom

J.R. saw for one appointment on July 31, 1996.

On February 3, 1998, Petitioner, Department of Health, filed

a three-count Administrative Complaint alleging that Respondent,

Ashok M. Patel, M.D., committed the following violations: 1) a

violation of Section 458.331(1)(t), Florida Statutes, by failing

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 through Respondent’s failure to refer Patient J.R.

for intensive in-patient care immediately; 2) a violation of

Section 458.331(1)(m), Florida Statutes, by failing to keep

written medical records justifying the course of treatment of

J.R. as an out-patient; and 3) violation of Section

458.331(1)(x), Florida Statutes, by violating a rule of the Board

of Medicine, specifically Rule 64B8-9.003(2), Florida

Administrative Code, failure to maintain records which state why

Patient J.R. was not admitted to intensive in-patient treatment.

Respondent contested the allegations of the Administrative

Complaint, and filed a timely request for formal hearing. The

matter was referred to the Division of Administrative Hearings on

May 1, 1998. Pursuant to the Prehearing Order, the parties filed

a prehearing stipulation on August 13, 1998. Formal hearing was

conducted on August 19-21, 1998. At the conclusion of the formal

hearing the record was left open pending resolution of

Respondent’s submission of additional expert testimony. On

September 28, 1998, Respondent submitted the videotaped

deposition of Daniel Sprehe, M.D., without objection.

At hearing, Petitioner presented the testimony of five

witnesses: Rosalie Mackay, Medical Records Director of

Psychiatric Behavioral Systems; John Llauget, licensed mental

health counselor; Mrs. P.R., widow of Patient J.R.; Maurice

Lelii, licensed mental health counselor; and Martin Rosenthal,

M.D., qualified as an expert witness in the field of psychiatry.

Petitioner also presented 15 exhibits which were received in

evidence.

At hearing Respondent presented the testimony of 2

witnesses: Arturo G. Gonzalez, M.D., qualified as an expert

witness in the field of psychiatry; and Respondent, Ashok M.

Patel, M.D. Respondent presented 15 exhibits, 10 of which were

received in evidence. Respondent’s Exhibit 1 was not offered

into evidence, Petitioner’s objection to Respondent’s Exhibit 4

was sustained, and ruling on Petitioner’s objections to

Respondent’s Exhibits 8, 10, and 12 was reserved. Having

reviewed the submission of the parties, Petitioner’s objections

are overruled and Respondent’s Exhibits 8 and 10 are received

over objection. Petitioner's objection to composite Exhibit 12

as irrelevant is sustained.

On September 21, 1998, a transcript of the hearing was

filed. Pursuant to Respondent’s Motion for Enlargement of Time

filed September 28, 1998, the parties were granted without

objection additional time in which to file Proposed Recommended

Orders. On November 16, 1998, the parties filed Proposed

Recommended Orders. Additionally, Respondent filed a Motion to

Exclude Irrelevant Material. Having reviewed the motion, and

finding that the material meets the evidentiary standards of

Section 120.58, Florida Statutes, Respondent’s motion is denied.

FINDINGS OF FACT

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

vested with the statutory authority to enforce the disciplinary

standards for the practice of medicine under Chapters 455 and

458, Florida Statutes.

2. Respondent, Ashok M. Patel, M.D., is and at all material

times was, a physician licensed to practice medicine in Florida,

having been issued license number ME 0066214. Respondent

practices psychiatry in Largo, Florida. Respondent is board

certified in psychiatry.

3. On July 31, 1996, Patient J.R. was referred for an

appointment to Respondent by Professional Psychological Services

(hereinafter PPS), a mental health care provider with which

Respondent was contractually affiliated. At this time J.R. was a

44-year-old white male who was employed as a paramedic, and later

as a firefighter for the City of Clearwater. J.R. had worked in

this capacity for over 19 years. J.R. was happily married to

P.R. for more than 11 years. The couple had no children.

4. In the weeks preceding his appointment with Respondent,

J.R. was experiencing severe depression. The primary basis of

J.R.'s depression was chronic health problems. J.R. had a

history of back problems which began in 1980. He had back

surgery in 1989, and suffered from psoriatic arthritis in his

back which adversely affected his ability to function effectively

as a paramedic and later as a firefighter. In July of 1996, J.R.

had the job of driver of the firetruck.

5. In July of 1996, J.R. was under the care of his primary

physician Dr. Mark Smitherman, as well as a rheumatolgist,

Dr. Adam Rosen, who prescribed medicine for J.R.'s chronic pain.

6. On July 22, 1996, during an appointment with

Dr. Smitherman, J.R. expressed his feelings of depression.

Dr. Smitherman suggested that J.R. contact PPS, the psychological

services provider of J.R.’s employment insurance plan. An

appointment with PPS was thereafter scheduled for July 31, 1996.

J.R. also had previously expressed his feelings of depression to

Dr. Rosen who had prescribed Serzone, an anti-depressant for J.R.

7. J.R. went to work at the firehouse on Monday, July 29,

1996. At some time during the evening while the other

firefighters were asleep, J.R. removed a defibrillator from the

firetruck, went to a private room, and used the defibrillator on

himself in an unsuccessful attempt to commit suicide.

8. The following morning of Tuesday, July 30, 1996, J.R.

returned home at approximately 8:00 a.m., and telephoned his

wife, P.R., who was already at work. J.R. informed his wife of

his suicide attempt. P.R. immediately went home and called PPS,

explained the circumstances, and requested an earlier

appointment. Arrangements were made with PPS to reschedule J.R.

from his existing appointment on Wednesday, July 31, 1996, to an

appointment July 30, 1996, at 7:00 p.m. Later that day, the

appointment was moved up to 5:00 p.m.

9. When J.R. and his wife arrived at PPS they met with

Betti Pate, a licensed mental health counselor employed by PPS.

During the course of her evaluation, Betti Pate noted that J.R.

was severely depressed with a suicide attempt within the previous

24 hours. Ms. Pate in her care plan for J.R. identified three

problems, depression, fear of being left alone, and suicidal

ideation. Under intervention, she noted, "prevent suicide, daily

observation." Betti Pate’s note to her supervisor stated that

J.R. was fearful, very depressed and negative. She also noted

that J.R. was "afraid he’ll try again if alone."

10. After Betti Pate’s evaluation on July 30, 1996, her

supervisors at PPS recommended that J.R. enter a Partial

Hospitalization Program (PHP) at Charter Behavioral Health System

of Medfield Hospital (Charter). The PHP at Charter was a mental

health counseling program which was conducted during the day at

the hospital. The primary focus of the Charter PHP was mental

health therapy provided in group settings with licensed mental

health counselors. The care plan for J.R. was to provide partial

hospitalization at Charter during the day while his wife was at

work. J.R. would then return home to his wife in the evening.

Under this arrangement J.R. would not be alone for extended

periods of time.

11. Admission to the PHP at Charter required the

concurrence of an admitting psychiatrist. Because the other

psychiatrists employed by PPS were unavailable, an appointment

was made for J.R. to be evaluated by Respondent who, although in

private practice, had an affiliate agreement with PPS to render

mental health services to referred patients. PPS made an

appointment for J.R. to see Respondent on Wednesday, July 31,

1996, at 4:00 p.m. It was common and usual practice for PPS to

refer patients to Respondent for evaluation prior to admission to

PHP, as well as for evaluation of a patient’s medications.

12. J.R. went alone to his appointment with Respondent.

Prior to seeing Respondent, J.R. completed a patient information

document. J.R. described his reason for visit as "mental health

& coping problem." He circled the following problems which

pertained to him: nervousness, anxiety, insomnia, stress,

headaches, overwhelmed, obsessive thoughts, compulsive behavior,

depression, loneliness, fears, suicidal thoughts, concentration,

appetite changes, helpless/hopeless, low energy, sexual problems,

impulsive behavior, medical problems, and physical pain. J.R.

listed the medications he was taking as Serzone 150 mg (10 day),

Lortab 7.5/500, Robaxin 750 mg. J.R. indicated that he had not

received prior psychiatric treatment.

13. After completion of the patient information document,

J.R. was seen by Respondent. Respondent observed that J.R. was

casually dressed and not dishelveled, was articulate, made eye

contact, was appropriately aware of time and place, and able to

communicate effectively. Respondent asked J.R. the nature of the

problem that had brought J.R. to him. Respondent then conducted

a medical history, a family history, and a history of the

problems leading to the visit to Respondent. In the course of

his evaluation of J.R., Respondent completed a clinical

assessment form which included a DSMIV diagnosis.

14. According to Respondent’s records J.R. stated as "chief

complaint" that "I was referred by PPS." In history of present

illness, Respondent notes that: "Patient is 44 year-old white

male came in complaining of chronic back pain, decreased sleep

agitation, irritability." Patient says he is feeling depressed,

says he tried to kill himself using defibrillator on Monday, but

says it did not work. Patient had suicidal thoughts for 1-2

weeks, but feels guilty about doing it. Says it was stupid to

hurt himself. Weight loss of 14 pounds in two and one-half

months, decreased appetite. No SI(suicial ideation)/ No

HI(homicidal ideation)/ No AH(auditory hallucinations)/ No

VH(visual hallucinations)/ No PI(paranoid ideation) at present.

15. During the course of Respondent’s evaluation, J.R.

related that he had been seen at PPS on July 30, 1996, that he

had an appointment to see Betti Pate the following day, and that

arrangements were being made by PPS for him to begin PHP at

Charter; however, Respondent did not have J.R.’s PPS evaluation

nor Betti Pate’s notes at the time of J.R.’s office visit. J.R.

also related that he had a supportive wife, although Respondent

did not have any personal contact with Mrs. J.R. at this time.

16. Respondent’s evaluation of J.R. lasted over one hour.

In his diagnosis Respondent determined that J.R. had major severe

depression, and that J.R. presented a moderate suicide risk. In

his recommendation/plan for J.R. Respondent’s notes reflect the

following: "Increased Serzone 100mg two Bid; continue out-patient

counseling; start Xanax 0.25 mg. 1/2-1 tid prn.; follow up in 2

weeks; and, made aware of 24 hours availability." Respondent

also advised rest for 2 weeks. At this time Respondent did not

know when J.R. would begin PHP at Charter.

17. After leaving Respondent’s office J.R. went home and

expressed to his wife some difficulty in understanding Respondent

who is a native of India. The next day Thursday, August 1, 1996,

Mrs. J.R. contacted PPS to inquire about J.R. seeing a different

psychiatrist. Neither J.R. nor Mrs. J.R. contacted Respondent,

and PPS did not refer J.R. to another psychiatrist.

18. Because of J.R.’s use of the defibrillator, PPS

requested medical clearance from J.R.’s primary care physician

Dr. Smitherman prior to admission to PHP at Charter. On

Thursday, August 1, 1996, J.R. telephoned Dr. Smitherman and

received medical clearance to begin PHP at Charter.

19. J.R. was scheduled to begin PHP at Charter on Monday

August 5, 1996. J.R. received no mental health therapy or

counseling from the time he left Respondent’s office on

Wednesday, July 31, 1996, until Monday, August 5, 1996, when he

arrived at Charter. J.R. spent some of this time doing routine

shopping, errands and going to the beach where he regularly

exercised by swimming. J.R. and his wife also discussed future

plans together.

20. On Monday, August 5, 1996, J.R. was admitted to PHP at

Charter. At this time Charter telephoned Respondent for

admission instructions for J.R., which Respondent as the

attending physician gave for J.R. During the course of the day,

J.R. attended group therapy sessions at Charter. The Charter

records indicate that J.R. presented a flat appearance, and was

not actively engaged in the therapy sessions.

21. The following day, Tuesday August 6, 1996, J.R. had a

previously scheduled appointment with his rheumotolgist,

Dr. Rosen. Because of this previously scheduled appointment J.R.

was allowed to miss his therapy sessions at Charter on August 6,

1996, with the understanding that he would return and continue

his therapy at Charter on Wednesday August 7, 1996.

22. On Tuesday, August 6, 1996, J.R. went to his

appointment with Dr. Rosen. At some time after leaving

Dr. Rosen’s office J.R. returned home and committed suicide by

hanging himself in the garage where his wife found him later that

day.

23. Respondent had no contact with J.R. subsequent to

July 31, 1996.

24. Three expert witnesses in the field of psychiatry

presented testimony in this matter: Dr. Martin Rosenthal;

Dr. Arturo Gonzalez; and, Dr. Daniel Sprehe. All three expert

witnesses concur that Respondent’s diagnosis of J.R. was correct

and met the appropriate standard of care. Moreover, all three

expert witnesses agree that Respondent’s prescribed medications

for J.R. were correct and met the appropriate standard of care.

While Drs. Gonzalez and Sprehe opined that Respondent’s treatment

plan for J.R. was appropriate, Dr. Rosenthal testified that

Respondent’s treatment of J.R. in "certain limited ways" did not

meet the standard of care. Specifically, Dr. Rosenthal opined

that even though J.R. was a moderate suicide risk, he would have

hospitalized J.R.

25. The medical literature submitted as part of the record

in this case is consistent in stating that suicide in an

individual patient is not a predictable event. The factors that

are considered by psychiatrists in evaluating the risk of suicide

are subjective to the individual patient. In order to be of

imminent risk, a patient must have suicidal intent, lethal means,

and opportunity. All the experts in this case agree that

Respondent made the proper diagnosis of J.R., which included a

finding that when Respondent saw J.R., the patient had no

suicidal ideation. At the time J.R. was seen by Respondent the

evidence shows not only did J.R. have no present suicidal

ideation, but he also expressed regret over having made a suicide

attempt, and specifically stated to Respondent that he felt

stupid about trying to hurt himself. The expert evidence is

supported by the medical literature, that under such

circumstances the appropriate standard of care does not require

immediate hospitalization.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding, pursuant

to Chapter 120, Florida Statutes.

27. Pursuant to Chapter 458, Florida Statutes, the

Department of Health is empowered to act against the medical

license of a psychiatrist.

28. Disciplinary licensing proceedings are penal in nature.

State ex rel. Vining v. Florida Real Estate Commission , 281 So.

2d 487 (Fla. 1973). Therefore, the Petitioner must prove the

alleged violations by clear and convincing evidence. Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1st DCA 19871); Dept. of Banking

and Finance v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996).

29. Clear and convincing evidence was described in

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

[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 evidence must

be precise and explicit and the witnesses

must be lacking in confusion as to the facts

in issue. The evidence must be of such

weight that it produces in the mind of the

trier of fact the firm belief of conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

Accord , Evans Packing v. Dept. of Agriculture

at 116 f.n.5.

30. Agency action that depends upon finding of facts not

supported by competent substantial evidence in the record must be

set aside, even if the facts raise a suspicion of wrongdoing,

speculation, surmise, and suspicion cannot form the basis of

disciplinary action against a professional license. Tenbroeck v.

Castor , 640 So. 2d 164, 167 (Fla. 1st DCA 1994).

31. The allegations in the present Administrative Complaint

are narrowly drawn, and specifically charged Respondent with

failure to meet the standard of care by not hospitalizing patient

J.R. on July 31, 1997. The evidence is not clear and convincing

that Patient J.R. who was appropriately diagnosed as moderate

suicidal should have been hospitalized immediately by Respondent

on July 31, 1997.

Count I

32. There is substantial competent evidence that the

Respondent provided that degree of care which conforms to the

prevailing standard of care as required by Section 458.331(1)(t),

and therefore is not in violation.

33. In this instance, the evidence is not clear and

convincing that Dr. Patel violated Section 458.331(t) by "failing

to refer patient J.R. for intensive in-patient care immediately."

Therefore, Count I should be dismissed.

Count II

34. There is substantial competent evidence that the

Respondent provided that degree of care which conforms to the

prevailing standard of care and documented such care as required

by Section 458.331(1)(m), and therefore is not in violation.

35. Because the evidence is not clear and convincing that

there was a need for Dr. Patel to immediately refer J.R. for

intensive in-patient care, there was no showing that Dr. Patel

violated Section 458.331(m) by "failing to justify his failure to

refer patient J.R. for intensive in-patient care." Therefore,

Count II should be dismissed.

Count III

36. There is substantial competent evidence that the

Respondent provided that degree of care which conforms to the

prevailing standard of care and documented such care as required

by Rule 64B8-9.003(2), Florida Administrative Code, and therefore

is not in violation of that Rule.

37. Because the evidence is not clear and convincing that

Dr. Patel's medical record of patient J.R. did not meet the

requirements of Rule 64B8-9.003(2), Florida Administrative Code,

there was no showing that Dr. Patel violated Section

458.331(1)(x), Florida Statutes. Therefore, Count III should be

dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a Final Order be entered dismissing the

February 3, 1998, Administrative Complaint against the

Respondent, Ashok M. Patel, M.D.

DONE AND ENTERED this 30th day of December, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

RICHARD A. HIXSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of December, 1998.

COPIES FURNISHED:

Kristina Sutter, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Post Office Box 14229

Tallahassee, Florida 32317

A. S. Weekley, Jr., M.D., Esquire

Holland & Knight

520 Vonderburg Drive, Suite 3005

Brandon, Florida 33511

Angela T. Hall, Agency Clerk

Department of Health

2020 Capital Circle, Southeast

Bin A-02

Tallahassee, Florida 32399-1703

Dr. James Howell, Secretary

Department of Health

Bin A00

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1701

Pete Peterson, General Counsel

Department of Health

2020 Capital Circle, Southeast

Bin A-02

Tallahassee, Florida 32399-1703

Tanya Williams, Executive Director

Board of Medicine

Department of Health

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0750

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.