08-0221 MICHAEL FOX M.D., v. DEPARTMENT OF HEALTH

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State: Florida

Court: Florida First District Court

Docket No: 08-0221

Case Date: 10/22/2008

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA MICHAEL FOX M.D., Appellant, v. CASE NO. 1D08-221 DEPARTMENT OF HEALTH, Appellee. _____________________________/ NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

Opinion filed October 22, 2008. An appeal from an order of the Department of Health. Mary Bland Love and Ronald S. Wasilenko of Gobelman, Love, Gavin, Wasilenko & Broughan, L.L.C., Jacksonville, for Appellant. Brittany Adams Long, Assistant General Counsel, Department of Health, Tallahassee, for Appellee.

PER CURIAM. Dr. Michael Fox ("Appellant") seeks review of a final order of the Board of Medicine ("the Board"), disciplining him for acting below the standard of care, skill, and treatment acceptable for a reasonably prudent physician in violation of section

458.331(1)(t), Florida Statutes (2007). Because the Board's determination is not supported by competent, substantial evidence, we reverse.1 The Department of Health ("the Department") filed an administrative complaint alleging that Appellant performed a hysterectomy on a patient without first ascertaining the results of her pregnancy test, in breach of the standard of care. At a hearing before the Administrative Law Judge ("ALJ"), expert testimony by Appellant's experts and the Department's expert established that the relevant standard of care requires physicians to ascertain the results of their patients' pregnancy tests prior to performing hysterectomies. The experts agreed that a doctor would not fall below the relevant standard of care if he asked a nurse for the results of a patient's pregnancy test, and the nurse stated the results orally. Appellant testified that he is a board-certified endocrinologist and obstetriciangynecologist who undertook the care of a patient who reported a history of progressive pelvic pain and abnormal menstrual bleeding. In October 2003, Appellant and the patient agreed she would undergo a hysterectomy. The patient informed Appellant that she had no desire for fertility and was not sexually active. Appellant ordered the patient to undergo a pregnancy test. Appellant testified that before

1

We do not reach the remaining issues on appeal because we reverse on this 2

issue.

performing the hysterectomy, he checked the patient's chart and did not see the results of the pregnancy test. He testified that he then asked the circulating nurse, Nurse Lloyd, for the pregnancy test results, and she reported that they were negative. Nurse Lloyd, the circulating nurse responsible for filling out operating room paperwork, testified that she had no recollection of being involved with the treatment of the patient on the date in question. Specifically, Nurse Lloyd testified that she did not remember whether she had any discussion with Appellant regarding the results of the patient's pregnancy test. Nurse Lloyd testified that ordinarily when she comes across positive pregnancy test results in a patient's chart, she communicates that finding to both the surgeon and the anesthesiologist. She further testified that normally if any lab results are missing from the chart, she obtains print-outs of the results. Nurse Lloyd testified that she did not remember whether she generally communicates negative pregnancy test results to the doctors. Nurse Singleton, who was also responsible for generating the pre-operative paperwork for the patient at issue, testified that she had no recollection of communicating with Appellant regarding whether or not the patient was pregnant on the date of surgery. Nurse Singleton testified that she typically communicates positive pregnancy test results to the surgeon. Nurse Floyd was also involved in pre-operative care for the patient. She 3

testified that she had no recollection of the results of the patient's pregnancy test or whether she saw Appellant prior to when the hysterectomy was performed. The ALJ issued a recommended order, finding that clear and convincing evidence was presented that Appellant failed to ascertain the results of the patient's pregnancy test prior to performing the hysterectomy. The ALJ rejected Appellant's testimony as not credible. Specifically, the ALJ found that "[Appellant] failed to establish in his defense that he knew the result [of the pregnancy test] before performing the hysterectomy." The ALJ recommended that the Board enter a final order finding Appellant in violation of section 458.331(1)(t), imposing a $10,000.00 administrative fine against him, requiring him to take a risk management course for physicians, and issuing a letter of reprimand. The Board approved and adopted the ALJ's findings of fact, conclusions of law, and recommended penalty. This appeal followed. 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."

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