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Weekly UpdatesCASE ON POINT: Abram v. State, 2009-FL-0521.122(5/20/2009)-FL
ISSUE : This unusual Florida case presented Florida courts with the task of determining whether a statute allowing the Board of Medicine (Board) to discipline a physician who performed a wrongsite surgical procedure, and whether the physician's right to due process was violated by allegedly including an irrebuttable presumption that performing a wrong-site procedure falls below the standard of care.
CASE FACTS: The Florida Department of Health (Department) filed an administrative complaint with the Board against Dr. Leon Abram, an orthopedic surgeon. The Department alleged that Dr. Abram, by performing a surgical procedure on a patient's T3 vertebra level rather than the intended T4 level, violated the applicable sections of Florida law, which provides, in pertinent part: (1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken: ... (a) Performing or attempting to perform health care services on the wrong patient, a wrong-site procedure, a wrong procedure, or an unauthorized procedure or a procedure that is medically unnecessary or otherwise unrelated to the patient's diagnosis or medical condition. Dr. Abram filed an election of rights indicating that he did not dispute the Department's allegations of fact, but requested an informal hearing before the Board to submit mitigation evidence. Although the election of rights form gave Dr. Abram the opportunity to dispute the allegations of fact and request a formal hearing before an administrative law judge, Dr. Abram did not exercise that option. The Department scheduled a hearing before the Board and provided notice thereof to Dr. Abram. At the hearing, the Board adopted the Department's allegations as the findings of fact. The Board then provided Dr. Abram an opportunity to be heard through counsel concerning legal argument or mitigating evidence. Dr. Abram's attorney asked the Board to exercise its discretion and dismiss the charges. The Department's counsel responded that it had not charged Dr. Abram with a standard of care violation, but rather a wrong-site procedure violation. Dr. Abram's attorney replied that disciplining him for a wrong-site procedure while he was practicing within the standard of care essentially would impose strict liability against him. The Board voted to accept the Department's complaint's legal conclusion that Dr. Abram violated the law hereinbefore cited. The Board entered a final order adopting the administrative complaint as the Board's findings of fact and conclusions of law. The Board found that the violation warranted disciplinary action. The order also noted several mitigating circumstances, including the fact that the physician immediately notified the patient and the patient's family, the fact that the patient did not suffer any harm, and the Pact that he self-reported the incident to the hospital, and the fact that the patient's anatomy complicated the procedure. The order directed that the Board issue a letter of concern, and that Dr. Abram present a one-hour lecture to the hospital medical staff on wrong-site surgery, and that he pay the Department's costs. Dr. Abram appealed.
COURT'S OPINION: The District Court of Appeal of Florida affirmed the Board's order. However, the court pointed out its reservations, which included the fact that Dr. Abram did not contest the Board's interpretation of the statutory language, which led to the disciplinary action against him. Thus, the court had no choice but to affirm the order of the Board. The court made it clear, however, that it did not necessarily agree that a violation of the section of Florida law upon which the Department relied, necessarily should result in disciplinary action.
LEGAL COMMENTARY: The standard of review of an agency decision based upon an issue of law is whether the agency erroneously interpreted the law and, if so, whether a correct interpretation compels a particular action. The Department contended that even if the statute includes an irrebuttable presumption that a wrong-site procedure falls below the standard of care, the statute is constitutional, as applied. The court noted, however, that the statue in question made no mention of the standard of care, and many of the thirty-plus actions constituting violations had nothing to do with a patient's care. Even if the section of the law in question included an irrebuttable presumption that a wrongsite procedure falls below the standard of care, the statute would remain constitutional, as applied. Editor's Note: In retrospect, Dr. Abram might have been better served if he had not agreed to accept the findings of fact made by the Department and adopted by the Board Had he challenged the constitutionality of the law upon which the Department and Board relied, he might have succeeded in convincing a court it was unconstitutional!
Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition ill Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.
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