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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD OF
MEDICINE,
Petitioner,
vs.
LEIB SINGER, M.D.,
Respondent.
_______________________________/
Case No. 16-5752PL
RECOMMENDED ORDER
On January 23, 2017, the final hearing was held by video
teleconference at sites in Lauderdale Lakes and Tallahassee,
Florida, before F. Scott Boyd, an Administrative Law Judge
assigned by the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Zachary Bell, Esquire
Ross Daniel Vickers, Esquire
Department of Health
Prosecution Services Unit
4052 Bald Cypress Way, Bin C-65
Tallahassee, Florida 32399-3265
For Respondent: Richard T. Woulfe, Esquire
Billing, Cochran, Lyles, Mauro
& Ramsey, P.A.
SunTrust Center, Sixth Floor
515 East Las Olas Boulevard
Fort Lauderdale, Florida 33301
2
STATEMENT OF THE ISSUES
The issues in this case are whether Respondent violated
section 458.331(1)(t), Florida Statutes (2009),1/ by committing
medical malpractice as alleged in the Amended Administrative
Complaint; and, if so, what is the appropriate sanction.
PRELIMINARY STATEMENT
On December 2, 2014, the Department of Health (Petitioner
or Department) issued an Amended Administrative Complaint against
Leib Singer, M.D. (Respondent or Dr. Singer). The complaint
related to Dr. Singer's provision of medical care to
Patient J.R.R. Dr. Singer performed a colonoscopy and
esophagogastroduodenoscopy (EGD or upper endoscopy) on Patient
J.R.R. Dr. Singer disputed allegations of fact in the complaint
and requested a formal hearing. The case was forwarded to the
Division of Administrative Hearings (DOAH) for assignment of an
administrative law judge on September 30, 2016.
The hearing was initially set for December 7 through 9,
2016, but after continuance upon Respondent's unopposed motion,
the final hearing took place on January 23, 2017. The parties
stipulated to certain facts, which are accepted and included
among the Findings of Fact below. Petitioner offered Exhibits
P-1 through P-8, including depositions of Dr. Paul Goldberg and
Dr. Robert Goldberg, all of which were admitted into evidence
without objection. Respondent testified and offered the live
3
testimony of one other witness, Dr. Robert Goldberg. Five of
Respondent's exhibits were admitted: Exhibit R-8, the transcript
and video deposition testimony of Dr. Robert Firpi; and Exhibits
R-10 through R-13, with the caveat that Exhibit
R-10, an affidavit of Dr. Robert Goldberg, was hearsay and could
only be used to supplement or explain other evidence. Exhibit
R-8 was admitted over the objection that Dr. Firpi was not an
appropriate expert, as discussed in the Conclusions of Law below.
Respondent's Exhibits R-1 through R-3 and Respondent's Exhibits
R-6 and R-7 were duplicative of Petitioner's exhibits and so were
not separately admitted. Exhibits R-4, R-5, and R-9 were
withdrawn by Respondent. Petitioner's objections to Exhibits
R-14 and R-15 were sustained, and they were not admitted.
Proposed recommended orders were timely filed by both
parties within ten days after February 24, 2017, when the one-
volume Transcript was received and posted to the docket. They
were considered in preparation of this Recommended Order.
FINDINGS OF FACT
1. The Department is the state agency charged with
regulating the practice of medicine pursuant to section 20.43,
chapter 456, and chapter 458, Florida Statutes (2016). The Board
of Medicine is charged with final agency action with respect to
physicians licensed pursuant to chapter 458.
4
2. At all times material to the complaint, Dr. Singer was a
licensed physician in the state of Florida, having been issued
license number ME 34494.
3. Dr. Singer's address of record is 4800 Northeast 20th
Terrace, Suite 105, Fort Lauderdale, Florida 33308.
4. Dr. Singer is board-certified in internal medicine and
gastroenterology by the American Board of Internal Medicine.
5. An EGD uses a scope to look at the esophagus, stomach,
duodenum, and small bowel. A colonoscopy similarly looks at the
colon, using a slightly different scope.
6. Patient J.R.R. underwent an EGD and colonoscopy on
January 11, 2007, under monitored anesthesia care (MAC).2/ A two-
millimeter polyp was removed from the transverse colon.
Dr. Singer's notes indicate that Patient J.R.R. tolerated the
procedure well. The pathology report on the polyp concluded there
was no evidence of dysplasia or malignancy.
7. Patient J.R.R. suffered from chronic renal failure and
became dependent on dialysis in June of 2008. He was being
considered as a candidate for a kidney transplant.
8. Patient J.R.R. underwent an abdominal ultrasound on
August 5, 2008.
9. The report for the August 5, 2008, ultrasound indicated
the study was interpreted by Michael Digiorgio, M.D., to show a
5
hyperechoic mass within the left lobe of the liver compatible with
hemangioma.
10. Patient J.R.R. underwent an abdominal computerized
tomography (CT) scan without contrast on August 16, 2008.
11. The report for the August 16, 2008, CT scan without
contrast indicated the study was interpreted by Michael
Alboucrek, M.D., to reveal no significant abnormality.
12. On September 30, 2009, Patient J.R.R. had a pre-
transplant clinic visit at Jackson Health System with Linda J.
Chen, M.D., who assessed the patient as being clinically very
robust and having no absolute contraindications to rule him out
for organ transplant. Also, Dr. Chen reported that Patient
J.R.R., among other things, would need a screening colonoscopy and
upper endoscopy.
13. In her report, Dr. Chen described multiple medical
issues for Patient J.R.R. She noted that he was a 69-year-old
male with more than a 35–year history of diabetes mellitus and
longstanding hypertension. He was in end-stage kidney disease and
was hemodialysis-dependent. He had a history of congestive heart
failure and coronary artery disease, as well as gastroesophageal
reflux disease. He suffered from ischemic cardiomyopathy,
underwent a three-vessel coronary artery bypass graft in August of
2008, and had a pacemaker since that time. His August 2009
echocardiogram showed a relatively good ejection fraction of
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35 percent to 40 percent with akinesis in the apex and hypokinesis
in the lateral and inferior ventricle. As part of a full pre-
transplant workup, Dr. Chen recommended an abdominal ultrasound
and the screening colonoscopy, as well as the EGD because of his
chronic reflux.
14. It is not uncommon to request these endoscopic
procedures in anticipation of immunosupressants to be given after
a transplant.
15. Patient J.R.R. underwent an abdominal CT scan with
contrast on February 26, 2010.
16. The report for the February 26, 2010, CT scan indicated
the study was interpreted by Michael Arch, M.D., to show mild
changes of cirrhosis with tiny bilateral pleural effusions.
Multiple hepatic lesions, some of which appeared to demonstrate
faint enhancement and to be new since the non-contrast CT on
August 16, 2008, were found suspicious for malignancy,
particularly metastases.
17. A CT scan conducted with contrast generally enhances the
image and permits more detail to be observed. The report for the
February 26, 2010, CT scan indicated the possibility that some
abnormalities in the scan that appear to be new might actually
have been present earlier at the time the CT scan without contrast
was done.
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18. Without specialized training, a gastroenterologist is
not independently qualified to review and interpret radiological
imaging. Neither Dr. Singer, nor any of the experts who testified
at hearing, had this specialized training.
19. On March 2, 2010, Patient J.R.R.'s referring physician,
Dr. Luis Cortez, requested an evaluation of Patient J.R.R. That
prescription referred to the recent CT scan showing possible
metastatic disease and ascites, stated that there had been a prior
colonoscopy in 2007 that was positive for a left-sided polyp, and
noted Patient J.R.R. had "congestive heart failure and renal
failure."
20. Ascites is an accumulation of fluid in the abdomen.
Ascites can make a liver biopsy more difficult and increase the
risk of bleeding, because the liver is displaced from the skin,
and it can be difficult to apply pressure.
21. There was no indication of malignancy in Patient
J.R.R.'s liver other than radiologic findings.
22. When advised of the possibility of cancer, without
confirmation, a gastroenterologist's responsibility is to attempt
to locate the cancer, determine its primary source, and determine
how extensive it is.
23. The vast majority of cancers found within the liver do
not originate solely within the liver, but are metastases from a
different location, termed the primary source. The colon is the
8
single most common site of primary tumors, but the primary could
also be in the lungs, stomach, or other organs.
24. When it is suspected that cancer may be present in the
liver, liver function tests may be ordered, which can indicate if
cancer may be blocking a bile duct or if there is damage to the
liver that might have been caused by cancer.
25. The April 14, 2010, history note by Dr. Singer indicated
that the liver function tests conducted for Patient J.R.R. were
normal.
26. Weight loss can be an indicator of cancer. Patient
J.R.R. had not experienced weight loss.
27. Tumor markers from the blood may also be ordered to
assist in identifying possible cancers and helping to locate them.
Various markers are highly associated with certain specific organ
cancers and so can indicate where to focus attention. For
example, CA-125 is highly suggestive of ovarian cancer, CA 19-9 is
highly suggestive of pancreatic or biliary cancer,
carcinoembryonic antigen (CEA) is highly suggestive of
gastrointestinal malignancies--though it can be seen with other
malignancies as well--and alpha-fetoprotein (AFP) is suggestive of
primary liver cancer.
28. Laboratory work for Patient J.R.R., dated March 8, 2010,
showed readings for the AFP tumor marker at less than 1.3 ng/mL,
CEA at less than .5 ng/mL, and CA 19-9 at 22 units/mL. The
9
April 14, 2010, history note by Dr. Singer indicated that CEA,
AFP, and CA 19-9 were normal. The normal AFP reading suggested
that if there was cancer in the liver, it was most likely
metastatic, and not primary, though not all patients with primary
liver cancer exhibit elevated AFP. The reading did not confirm
the presence of cancer.
29. Diagnostic imaging, such as CT scans and ultrasounds,
can help locate suspected cancer. Radiologists examine the
imaging and issue a report. Radiological imaging can tell a
radiologist if there is something abnormal in the body that could
be potentially malignant and can help to identify its location.
30. Dr. Singer ordered an abdominal ultrasound and a
liver/spleen scan for Patient J.R.R., which Patient J.R.R.
underwent on April 28, 2010.
31. The abdominal ultrasound report dated April 28, 2010,
indicated the study was interpreted by George Koshy, M.D., to show
multiple echogenic lesions throughout the liver suspicious for
metastases as previously described by CT scan.
32. In a liver spleen scan, a radionuclide is injected into
the body, and is picked up by various cells. A liver spleen scan
has limited utility for evaluating nodules or lesions, but gives
information on how the liver is functioning.
33. Patient J.R.R. might also have been referred to an
interventional radiologist for a directed percutaneous biopsy of
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the liver. In 2010, most interventional radiologists used
conscious sedation when they performed liver biopsies, although
other forms of sedation might be used. Conscious sedation is a
state of sedation in which the patient is sleepy, but arousable,
comfortable for the procedure, and generally without loss of
protective reflexes, like the gag reflex, or withdrawing from
painful stimuli.
34. The tissue obtained from a liver biopsy would then have
been sent to a pathologist. A pathologist can usually tell if the
tissue obtained is malignant or not. If metastatic malignancy is
identified, the pathologist can frequently narrow down the
location of the primary cancer through the use of immunoperoxidase
stains.
35. Interventional radiologists use radiologic imaging to
guide a percutaneous liver biopsy. This slightly decreases the
risk of perforation of large blood vessels or bile ducts, and
allows a specific portion of the liver to be targeted for biopsy.
The primary risks associated with liver biopsy include perforation
and bleeding. There are also risks related to the anesthesia
used.
36. In conducting a liver biopsy, tissue must come from the
mass or the filling defect, so the needle must get right into the
abnormal area to be successful. If the tissue sample taken is
11
from a part of the liver that is normal, it will fail to diagnose
the suspected cancer.
37. Dr. Singer did not order a liver biopsy for Patient
J.R.R., but decided to proceed with an EGD and colonoscopy.
38. Patient J.R.R. was scheduled to undergo a colonoscopy
and upper endoscopy on April 30, 2010, at Broward General Medical
Center, and Dr. Singer was scheduled to perform the procedures.
39. Complications related to colonoscopies performed under
MAC include perforation and bleeding.
40. Complications related to upper endoscopies performed
under MAC include perforation and bleeding.
41. Risks with MAC, usually used to perform an EGD or
colonoscopy, include respiratory and cardiac arrest and
respiratory insufficiency. Patients are breathing for themselves.
If their breathing is suppressed or they are obstructing their
airway--with their tongue, for example--their oxygen saturation
drops. Propofol, the most commonly used anesthetic, is cardio-
reactive and can cause a drop in blood pressure. These are
reasons why sedation is monitored by an anesthesiologist or nurse
anesthetist. The anesthesiologist determines what form of
sedation is best for a particular patient. A gastroenterologist
must consider anesthesia along with all of the risks of a
procedure. The anesthesiologist is the "final gatekeeper" with
respect to risks of anesthesia.
12
42. Conscious sedation is usually considered less risky than
MAC, but with some patients, the anesthesia risks of conscious
sedation can be even higher than those with MAC. As Dr. Paul
Goldberg testified, sometimes an anesthesiologist might decline to
do MAC:
Or they'll say to you, they won't—they'll say
I'm not doing it. You can do it on your own,
but that's called insanity. If the
anesthesiologist think's it's too risky to do
the case then the—only the fool goes ahead
under most circumstances and does it without
them because the risk of doing conscious
sedation to that patient is higher than the
risk of doing managed care.
43. Prior to performing the colonoscopy and upper endoscopy,
Dr. Singer was aware that Patient J.R.R. had multiple documented
comorbidities.
44. The comorbidities of primary concern with endoscopic
procedures relate to the need for MAC sedation, and include
respiratory issues, cardiac issues, and metabolic issues.
45. Patients with significant comorbidities have a higher
chance of complication during surgery compared to those without
comorbidities.
46. Patient J.R.R.'s April 30, 2010, colonoscopy and upper
endoscopy procedures were performed under MAC using Propofol.
47. Dr. Singer has the authority to forego proceeding with a
surgery, or cancel a surgery, if he believes the surgery is not in
the best interests of the patient.
13
48. Statistically speaking, the risks for a liver biopsy are
lower than the risks for a colonoscopy. While the risks for
either procedure are low, in general the risks in a colonoscopy
are approximately five times the risks of a liver biopsy.
49. A gastroenterologist attempts to minimize risks to the
patient and so attempts to diagnose as noninvasively as possible.
A gastroenterologist must carefully consider the individual
patient and his comorbidities when weighing how safe it is to
undertake a given procedure. What is safe for one patient may not
be safe for another. Especially with elderly patients who exhibit
numerous comorbidities, it is necessary to look at the risk of a
procedure versus the benefit to be gained from it. All of the
experts agreed that each patient must be considered individually.
50. Despite knowing of the possible liver malignancy,
Dr. Singer elected to continue with the colonoscopy and upper
endoscopy.
51. Patient J.R.R. expired in the operating room immediately
following the completion of the April 30, 2010, colonoscopy and
upper endoscopy, while still under the effects of anesthesia.
Experts and Standard of Care
52. Dr. Paul Goldberg is licensed to practice medicine in
the state of Florida. He is board-certified in the specialty of
internal medicine and in the subspecialty of gastroenterology. He
is a fellow of the American College of Gastroenterology and the
14
American Gastroenterological Association. He is a member of the
American Society for Gastrointestinal Endoscopy and of ASPEN, the
American Society for Parenteral and Enteral Nutrition.
53. Dr. Paul Goldberg has active privileges at the Villages
Regional Hospital, Florida Hospital Waterman in Tavares, and
Leesburg Regional Medical Center in Leesburg. He also has
affiliate staff privileges at Halifax Health in Daytona Beach and
at Memorial Hospital Daytona Beach. He was in the active practice
of gastroenterology in the three years before April 2010.
54. Dr. Paul Goldberg conducted a review of Patient J.R.R.'s
pertinent medical records, including records created by
Dr. Singer. He did not review the March 2, 2010, request of
Dr. Luis Cortez for an evaluation of Patient J.R.R. or the
references there to the CT scan showing possible metastatic
disease and ascites, and noting Patient J.R.R.'s "congestive heart
failure and renal failure."
55. Dr. Robert Goldberg is a licensed Florida medical doctor
who specializes in internal medicine and has a subspecialty in
gastroenterology. He has been board-certified in both for more
than 25 years. He is a full-time faculty member of the University
of Miami. He teaches medical students from that school--as well
as students from Florida International University and Nova
Southeastern--how to conduct histories primarily related to
gastroenterology and provides opportunities for them to observe
15
endoscopic procedures. He gives lectures to residents on
gastrointestinal physiology and teaches sedation and monitoring
during endoscopic procedures.
56. Dr. Robert Goldberg has hospital privileges at Mount
Sinai Medical Center and concentrates about 90 percent of his
practice in the subspecialty of gastroenterology. He was in
active clinical practice of gastroenterology and routinely
performed EGDs, colonoscopies, and dilations in the three years
before April 2010. He used to perform liver biopsies, but no
longer does so.
57. Dr. Robert Goldberg conducted a complete review of
Patient J.R.R.'s pertinent medical records.
58. Dr. Roberto Firpi is a licensed Florida medical doctor
who specializes in internal medicine and has subspecialties in
gastroenterology and transplant hepatology. He is a fellow of the
American College of Gastroenterology and a fellow of the American
Gastroenterological Association. He is also a member of the
American Association of the Study of Liver Disease and the
European Association of the Study of Liver Disease. He has
hospital privileges at the University of Florida and the Veterans
Administration Hospital in Gainesville. He had an active clinical
practice for at least three years prior to April 2010, in which he
practiced in gastroenterology and liver diseases.
16
59. Dr. Firpi is also an associate professor of medicine at
University of Florida, Department of Medicine, Division of
Gastroenterology and Hepatology. During the three years prior to
April 2010, he taught medical students liver disease and
instructed fellows on procedures such as colonoscopies,
endoscopies, and liver biopsies. He also gave lectures to
residents on gastrointestinal physiology and taught sedation and
monitoring during endoscopic procedures.
60. Dr. Firpi conducted a complete review of Patient
J.R.R.'s pertinent medical records.
61. Dr. Paul Goldberg, Dr. Robert Goldberg, and Dr. Firpi
are all experts in gastroenterology and have knowledge, skill,
experience, training, and education in the prevailing professional
standard of care recognized as acceptable and appropriate by
reasonably prudent gastroenterologists.
62. There was considerable divergence in their testimony and
opinions as to the applicable standard of care for a
gastroenterologist treating a patient similar to Patient J.R.R.
63. Dr. Paul Goldberg indicated that a liver biopsy should
be done before a colonoscopy unless there was a strong indication
that the metastases was originating in the colon, testifying:
Q: If you suspected that the cancer—the
origin source of the cancer—was in the colon,
would the colonoscopy help you determine that?
17
A: Based upon—I mean it depends upon how
strongly I suspect it and what I'm seeing. If
I had a CT scan that showed a mass in the
colon, yeah, absolutely I would look with a
colonoscope. If I had a mildly elevated CEA,
no, that wouldn't be—and holes in liver, no,
that wouldn't be my first choice because it's,
you know, I would get the liver biopsy first
because it tends—it would be more useful to
get that information because I'm not—I really
don't have a good indication it's coming from
the colon.
64. Dr. Paul Goldberg testified that due to the risks of
sedation, the risk of a liver biopsy is less than the risk of a
colonoscopy in a patient with heart disease, congestive heart
failure, diabetes, respiratory issues, and sleep apnea.
65. It was Dr. Paul Goldberg's opinion that scheduling and
performing the EGD and colonoscopy procedures, which required
Patient J.R.R. to be placed under MAC, before more thoroughly
evaluating the abnormalities identified in the radiologic findings
by conducting a liver biopsy, fell below the standard of care
applicable to a prudent gastroenterologist with training similar
to that of Dr. Singer.
66. Dr. Robert Goldberg concurred that if metastases in the
liver were strongly shown, a liver biopsy would be appropriate,
but concluded that it was not strongly shown in Patient J.R.R.,
testifying:
Q: And if those imaging studies indicated
that the nodules in the liver were potentially
metastatic, and the blood tests did not
18
indicate any particular cancer, would you go
to a colonoscopy as your next diagnostic tool?
A: Yeah. You are creating a hypothetical. I
would look at the case and, you know,
specifically, what are their blood tests? Has
the patient lost weight? Is the patient
having abdominal pain? Is the patient anemic?
Are the liver function tests abnormal? Is –
am I strongly thinking that this is metastatic
cancer, or am I thinking these are benign
nodules – regenerating nodules? For example,
in the context of cirrhosis, hemangioma, et
cetera. So it all depends on the specifics of
the case.
Q: What if the report from the CT scan said
the nodules were suspicious for metastases,
and then an ultrasound confirmed the same
report?
A: Were they present before?
Q: What if that was unclear?
A: Well, I -– I would have to, again, review
the reports and see what is being said, and if
the information strongly supported that this
was metastatic liver disease, I would consider
doing a liver biopsy.
Q: Okay. And what evidence would you be
looking at to strongly support that?
A: Weight loss, abnormal liver function
tests, lesions which radiologically are
suggestive of metastatic liver disease,
lesions which have clearly changed over a
period of time. It would have to be a
clinical suspicious – suspicion of metastatic
liver disease.
67. Dr. Robert Goldberg further testified:
Q: Finally, doctor, do you--is it your
opinion that Dr. Singer acted appropriately
and within the standard of care for physicians
19
like him--as a gastroenterologist--in his
care, treatment, assessment and evaluation of
this patient and going forward with the
colonoscopy when he did?
A: It is. I believe that Dr. Singer acted
appropriately, prudently, thoughtfully, and as
I go over the records, even in retrospect, I
suspect I would have acted very similarly.
68. Dr. Robert Goldberg found it significant that the report
of the later scan, with contrast, also seemed to indicate that
there were several lesions that had not changed at all. He
thought it unlikely that if these were cancerous lesions present a
year and a half before, that there would have been no weight loss,
no evidence of impaired liver function, and no direct symptoms
accompanying metastatic liver disease. He also noted that if
Patient J.R.R. had regenerative nodules and hemangioma, there was
an increased risk of bleeding with a liver biopsy that could be
significant.
69. It was Dr. Firpi's opinion that even if metastatic
disease was clearly shown, that a liver biopsy would not be
necessary for a patient similar to Patient J.R.R., testifying:
Q: Would you order a colonoscopy?
A: Yes, I would.
Q: And what would you be looking for? How
would that help you?
A: It will help me find out if the primary is
colon cancer. You need to know is the primary
from there and do staging.
20
Q: Would you order the colonoscopy regardless
of the results of the liver function tests and
cancer markers?
A: If they're telling me in radiology that
this is metastatic disease or it looks like
metastatic disease, I would have ordered the
colonoscopy.
Q: So for every patient that's referred to
you for a liver evaluation you do a
colonoscopy?
A: Not for a liver evaluation. For liver
metastasis.
Q: So for every patient that's referred to
you for lesions in the liver suspicious for
metastases you do a colonoscopy?
A: They should have a colonoscopy.
Q: Even patients with significant
comorbidities?
A: Yes.
Q: Would you include a liver biopsy?
A: I'm not sure why. I don't think so. I
would say no.
70. Dr. Firpi testified that the standard of care for a
patient with all of the conditions and circumstances of Patient
J.R.R. required that a colonoscopy and endoscopy be conducted if a
CT scan determined that there was metastatic disease in the liver.
He testified that he would not have done anything differently than
Dr. Singer did.
71. Dr. Singer testified that in the particular case of
Patient J.R.R., he concluded that the risks of a liver biopsy were
21
in fact greater than the risks of an EGD and colonoscopy, due to
the greater ability to control complications in endoscopic
procedures, possible liver hemangioma, coagulation problems,
ascites, and renal failure. Dr. Singer testified that there were
multiple reasons to conduct a colonoscopy: elapsed time since the
previous colonoscopy; the possibility of metastatic liver cancer;
and the transplant clearance. Given increased risk for a liver
biopsy and the fact that the colon was the most likely spot for a
primary tumor, he testified that he decided to perform the EGD and
colonoscopy before a liver biopsy.
72. It was not clearly shown that, in scheduling and
performing the EGD and colonoscopy on Patient J.R.R. prior to
further evaluation of the abnormal radiologic evaluations of
possible metastatic lesions or cirrhosis of the liver, Dr. Singer
deviated from the standard of care recognized as acceptable and
appropriate by reasonably prudent similar health care providers.
73. It was stipulated that Dr. Singer did not deviate from
the standard of care in his actual performance of Patient J.R.R.'s
April 30, 2010, colonoscopy and upper endoscopy procedures.
74. No evidence was introduced to show that Dr. Singer has
had any prior discipline imposed upon his license.
75. Dr. Singer was not under any legal restraints on
April 30, 2010.
22
76. It was not shown that Dr. Singer received any special
pecuniary benefit or self-gain from his actions on April 30, 2010.
77. It was not shown that the actions of Dr. Singer on
April 30, 2010, involved any trade or sale of controlled
substances.
CONCLUSIONS OF LAW
78. The Division of Administrative Hearings has jurisdiction
in this proceeding pursuant to sections 120.569 and 120.57(1),
Florida Statutes (2016).
79. A proceeding to suspend, revoke, or impose other
discipline upon a license is penal in nature. State ex rel.
Vining v. Fla. Real Estate Comm'n, 281 So. 2d 487, 491 (Fla.
1973). Petitioner must therefore prove the charges against
Respondent by clear and convincing evidence. Fox v. Dep't of
Health, 994 So. 2d 416, 418 (Fla. 1st DCA 2008)(citing Dep't of
Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla.
1996)).
80. The clear and convincing standard of proof has been
described by the Florida Supreme Court:
Clear and convincing evidence requires that
the evidence must be found to be credible; the
facts to which the witnesses testify must be
distinctly remembered; the testimony must be
precise and 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 a
firm belief or conviction, without hesitancy,
23
as to the truth of the allegations sought to
be established.
In re Davey, 645 So. 2d 398, 404 (Fla. 1994)(quoting Slomowitz v.
Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
81. Disciplinary statutes and rules "must always be
construed strictly in favor of the one against whom the penalty
would be imposed and are never to be extended by construction."
Griffis v. Fish & Wildlife Conserv. Comm'n, 57 So. 3d 929, 931
(Fla. 1st DCA 2011); Munch v. Dep't of Prof'l Reg., Div. of Real
Estate, 592 So. 2d 1136 (Fla. 1st DCA 1992).
82. Before consideration of the charges of the Amended
Administrative Complaint, two evidentiary issues merit
discussion. First, Respondent objected during deposition, on
grounds of hearsay and bolstering, to portions of Dr. Paul
Goldberg's testimony in which he indicated that he had relied
upon literature in forming his opinion. The general rule is that
an expert may not bolster his testimony by testifying that a
particular treatise supports his opinion. The evidence code
specifically addresses this issue. Under section 90.704, Florida
Statutes, data that is of a type reasonably relied upon by
similar experts may form a basis of an expert opinion, but data
that is not otherwise admissible may be disclosed to a jury only
if its probative value substantially outweighs its prejudicial
24
effect. See also Linn v. Fossum, 946 So. 2d 1032, 1036 (Fla.
2006).
83. The rules of evidence in administrative proceedings are
less strict than those applicable to civil proceedings, and
hearsay is admissible to supplement or explain other competent
evidence. § 120.57(1)(c), Fla. Stat. Here, where Dr. Paul
Goldberg did not mention any particular literature or treatise by
name, but only mentioned that he had reviewed some literature
along with the medical records, there was no inappropriate
bolstering or prejudice to Respondent. Further, the hearsay
information he referenced may properly be considered because it
supplements and explains his opinion that the risks of the EGD and
colonoscopy under sedation were greater than the risks of a
percutaneous liver biopsy. Orasan v. Ag. for Health Care Admin.,
668 So. 2d 1062, 1063 (Fla. 1st DCA 1996)(error for hearing
officer to sustain objection that hearsay evidence was
inadmissible as bolstering appellant's testimony).
84. Second, Petitioner objected, through its Motion in
Limine, to the admission of the deposition testimony of Dr. Firpi
on the grounds that while he is board-certified in the specialty
of internal medicine with a subspecialty in gastroenterology, he
also holds certification in another subspecialty, that of
transplant hepatology, while Respondent is only board-certified in
internal medicine with a subspecialty in gastroenterology.
25
85. Section 458.331(1)(t)1. provided that the Board of
Medicine shall give great weight to the provisions of section
766.102, Florida Statutes, in proceedings involving allegations of
medical malpractice as grounds for disciplinary action.
86. Section 766.102(5)(a) provided in relevant part that an
expert must:
Specialize in the same specialty as the health
care provider against whom or on whose behalf
the testimony is offered; or specialize in a
similar specialty that includes the
evaluation, diagnosis, or treatment of the
medical condition that is the subject of the
claim and have prior experience treating
similar patients[.]
87. Even were the subspecialty of transplant hepatology not
sufficiently similar to the subspecialty of gastroenterology under
this provision, this is not a situation in which the testimony of
a specialist is being offered against a generalist, or conversely
where the testimony of a generalist is being offered against a
specialist, both clearly forbidden. Instead, the proffered expert
here is certified in the same specialty, as well as the same
subspecialty, in which Respondent is certified. Dr. Firpi also
had both an active clinical practice, and instructed students and
residents, in gastroenterology within the three years immediately
preceding April 2010. Dr. Firpi is qualified by his education,
training, and experience to testify as to the prevailing
professional standard of care applicable to an internal medicine
26
specialist with a subspecialty in gastroenterology, such as
Respondent. § 766.102(5)(a)2.a., b., Fla. Stat. To the extent
that Dr. Firpi is also a subspecialist in another area, this does
not disqualify him as an expert in the same subspecialty as
Respondent, but rather places responsibility on all parties to
ensure that offered testimony is relevant as to the standard of
care governing Respondent. After argument on the Motion in Limine
at hearing,3/ Respondent's Exhibit R-8 was admitted over
Petitioner's objection (subject to objections made within the
deposition).
88. The Amended Administrative Complaint alleged that
Respondent committed medical malpractice in violation of section
458.331, which provided, in relevant part:
(1) The following acts constitute grounds for
. . . disciplinary action . . . .
* * *
(t)1. Committing medical malpractice as
defined in s. 456.50.
89. Section 456.50(1)(g), Florida Statutes, defined "medical
malpractice" in relevant part as the failure to practice medicine
in accordance with the level of care, skill, and treatment
recognized in general law related to health care licensure.
90. Section 766.102(1) further provided in part that "the
prevailing professional standard of care for a given health care
provider shall be that level of care, skill, and treatment which,
27
in light of all relevant surrounding circumstances, is recognized
as acceptable and appropriate by reasonably prudent similar
health care providers."
91. Petitioner alleged that Respondent committed medical
malpractice in:
a. failing to cancel or postpone J.R.R.'s
April 30, 2010, surgical procedures, pending
an evaluation of J.R.R.'s potential liver
malignancies; and/or
b. failing to pursue the abnormal findings of
the multiple radiologic evaluations of
possible metastatic lesions, and/or cirrhosis
of J.R.R.'s liver prior to performing the
April 30, 2010, procedure on Respondent.
92. The essence of Dr. Paul Goldberg's analysis in support
of the complaint was that the least invasive diagnostic procedure
should be utilized and that, primarily due to the type of
anesthesia necessary, a liver biopsy entailed less risk than an
EGD and colonoscopy.
93. While Petitioner presented convincing evidence that,
statistically, an EGD and colonoscopy does involve more risk than
a liver biopsy for patients generally, due in large part to the
anesthesia used, this showing alone was insufficient to clearly
and convincingly demonstrate malpractice. Under appropriate
"risk-benefit" evaluation, the relative benefits of the two
approaches in a patient similar to Patient J.R.R. must also be
considered. The evidence that the liver biopsy would have
28
provided sufficient benefits in light of its risks as compared to
the overall risks and benefits of the EGD and colonoscopy for
Patient J.R.R. was strongly contested, and not clearly and
convincingly shown.
94. Petitioner failed to establish by clear and convincing
evidence that Respondent committed medical malpractice in
violation of section 458.331(1)(t)1., as charged in the Amended
Administrative Complaint.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of
Law, it is
RECOMMENDED that a final order be entered by the Department
of Health, Board of Medicine, dismissing the Amended
Administrative Complaint against Dr. Leib Singer.
DONE AND ENTERED this 28th day of March, 2017, in
Tallahassee, Leon County, Florida.
S
F. SCOTT BOYD
Administrative 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
29
Filed with the Clerk of the
Division of Administrative Hearings
this 28th day of March, 2017.
ENDNOTES
1/ Citations to statutes are to those versions in effect during
the time of Respondent's treatment of J.R.R. in April 2010, except
as otherwise indicated.
2/ EGDs and colonoscopies are usually performed under monitored
anesthesia care (MAC). Patients receive a sedative, in most cases
Propofol, and they are unconscious during the procedure. Patients
are monitored by a nurse anesthetist or anesthesiologist.
3/ Although ruling on the Motion in Limine was deferred to the
hearing, neither party offered evidence, instead agreeing that the
specialties and subspecialties were identical on their face, and
focusing argument upon the effect of the additional subspecialty
certification held by Dr. Firpi. Section 766.102 by its terms
governs the qualifications of an expert at hearing. That statute
has been applied by Florida courts in the version that exists at
the time of the incident. See, e.g., Williams v. Oken, 62 So. 3d
1129, 1131 (Fla. 2011) (referencing the 2005 version of presuit
requirements, not the version later in effect). The Florida
Supreme Court declined to adopt the "same specialty" amendment
made by chapter 2013-108, § 2, Laws of Florida. See In re
Amendments to the Fla. Evidence Code, No. SC16-181, 2017 Fla.
LEXIS 338, at *21 (Feb. 16, 2017). Whether or not the "same or
similar specialty" or "same specialty" language is applied, the
result would be the same in this case, as discussed above.
COPIES FURNISHED:
Zachary Bell, Esquire
Ross Daniel Vickers, Esquire
Department of Health
Prosecution Services Unit
4052 Bald Cypress Way, Bin C-65
Tallahassee, Florida 32399-3265
(eServed)
30
Richard T. Woulfe, Esquire
Billing, Cochran, Lyles, Mauro
& Ramsey, P.A.
SunTrust Center, Sixth Floor
515 East Las Olas Boulevard
Fort Lauderdale, Florida 33301
(eServed)
Nichole C. Geary, General Counsel
Department of Health
4052 Bald Cypress Way, Bin A-02
Tallahassee, Florida 32399-1701
(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)
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.
