Appendix — Azima v. Florida Department of Professional Regulation
Supreme Court brief1986
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| BILED
| APR 2S 1986
CASE NO. SpANIOL, JR.
HOSP ERK
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1985
ALI A. AZIMA, M.D., PETITIONER,
v.
FLORIDA DEPARTMENT OF
PROFESSIONAL REGULATION,
BOARD OF MEDICAL EXAMINERS,
RESPONDENT.
APPENDIX TO THE
PETITION FOR WRIT OF CERTIORARI
TO THE DISTRICT COURT OF APPEAL
FOR THE FIRST DISTRICT OF FLORIDA
BERNARD H. DEMPSEY, JR., ESQ.
(Counsel of Record)
FERDINAND M. ROMANO, ESQ.
RICHARD LEE BARRETT, ESQ.
DEMPSEY & GOLDSMITH, P.A.
Suite 500, Day Building
605 East Robinson Street
Post Office Box 1980
Orlando, Florida 32802
(305) 422-5166
Attorneys for Petitioner,
AL] A. AZIMA, M.D.
CASE NO.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1985
ALI A. AZIMA, M.D., PETITIONER,
V.
FLORIDA DEPARTMENT OF
PILCOFESSIONAL REGULATION,
BOARD OF MEDICAL EXAMINERS,
RESPONDENT.
APPENDIX TO THE
PETITION FOR WRIT OF CERTIORARI
TO THE DISTRICT COURT OF APPEAL
FOR THE FIRST DISTRICT OF FLORIDA
BERNARD H. DEMPSEY, JR., ESQ.
(Counsel of Record)
FERDINAND M. ROMANO, ESQ.
RICHARD LEE BARRETT, ESQ.
DEMPSEY & GOLDSMITH, P.A.
Suite 500, Day Building
605 East Robinson Street
Post Office Box 1980
Orlando, Florida 32802
(305) 422-5166
Attorneys for Petitioner,
ALI A. AZIMA, M.D.
TABLE OF CONTENTS
APPENDIX
SECTION I.
Opinion of the District
Court of Appeal, First Dis-
trict, State of Florida.
SECTION II.
Final Ore2r of the Board of
Medical Examiners, State of
Florida.
SECTION III.
Text of Statutes, Regulations
and Constitutional Provisions
Which the Case Involves.
§390.001(7), Fla. Stat.,
Termination of Pregnancies.
§458.331, Fla. Stat., Grounds
for Disciplinary Action;
Action by the Board.
§768.45, Fla. Stat., Medical
Negligence; Standards of
Recovery.
Florida Administrative Pro-
cedure Act, Chapter 120,
Fla. Stat.
Sheeset, Fla. Stat.,
Decisisions Which Affect
Substantial Interests.
§120.68, Fla. Stat.,
Judicial Review.
Fla. Admin. Code,
Rule 10D-72.16.
TABLE OF CONTENTS (Cont'd. )
U.S. Const., Amend. XIV, §l
Citizenship; Privileges and
Immunities; Due Process; Equal
Protection; Apportionment of
Representation; Disqualification
of Officers; Public Debt; En-
forcement.
SECTION IV.
Portion of Record Demonstrating
That Both Federal Questions
Were Timely and Properly Raised.
SECTION V.
Summary of the Case.
1.
Y
3.
The Petitioner.
The Petitioner's Medical
Procedures.
Case History and Testimony
Relating to Holli Schmidt.
Case History and Testimony
on Christine Sellers Kuchar.
Case History and Testimony
Relating to Darlene Baker.
Conclusion.
A-ii-
A-116
A-124
APPENDIX -- SECTION I
I. Opinion of the District Court
of Appeal, First District,
State of Florida.
IN THE DISTRICT COURT
OF APPEAL
FIRST DISTRICT, STATE
OF FLORIDA
ALI A. AZIMA, M.D., NOT FINAL UNTIL TIME
EXPIRES TO FILE MO-
Appellant, TION FOR REHEARING
AND DISPOSITION
vs. THEREOF IF FILED.
DEPARTMENT OF PROFES- CASE NO. BE-368
SIONAL REGULATION,
Appellee.
- f
Opinion filed July 15, 1985.
Appeal from an order of the Department of
Professional Regulation, Board of Medical
Examiners.
Bernard H. Dempsey, Jr. and Richard Lee
Barrett, Orlando, for appellant.
J. Riley Davis, Tallahassee, for appellee.
BARFIELD, J.
Dr. Azima appeals the order of the
Department of Professional Regulation (Depart-
ment) which suspended his license for failure
"to practice medicine with that level of
care, Skill, and treatment which is recog-
nized by a reasonably prudent similar physi-
cian as being acceptable under similar condi-
tions and circumstances." See Fla. Stat.
section 458.331(1)(t)(1981). Appellant con-
tends that the Department's order is not sup-
ported by competent and substantial evidence.
We disagree and affirm,
Dr. Azima operated a clinic in the
Fort Myers area which provided birth control
services and performed pregnancy termination
procedures. The hearing officer found that
Dr. Azima provided substandard care to two of
his patients and the Department accepted her
findings of fact and conclusions of law.
Appellant asserts that the Department erred
because the evidence against him was all in
the form of expert testimony of physicians
who were in direct competition with him.1l
It is his position that under the rationale
of Robinson v. Florida Board of Dentistry,
447 So.2d 930 (Fla. 3d DCA 1984), the compet-
ing physicians' testimony did not provide a
sufficient evidentiary basis to support the
Department's order.
In Robinson, the district court
reversed an order which imposed sanctions
against a dentist for alleged substandard
treatment of a patient. The expert testimony
against Dr. Robinson consisted solely of the
lfhere were six physicians performing
pregnancy terminations outside of the
hospital setting in Fort Myers at the time of
the hearing. Four of appellant's five
competitors testified against him.
opinions of Dr. Beard, the dentist who suc-
ceeded Dr. Robinson in treating the patient.
The court found that where the successor had
an interest in seeing his recommended treat-
ment recognized as "correct" and had a conti-
nuing financial interest in the patient, his
testimony, without more, could not support a
license suspension.
We find that the facts before us dif-
fer from those in Robinson in several signifi-
cant respects. First, four different local
physicians testified against the appellant.
Thus, their testimony presented a much
broader cross-section of the local medical
community than was made available in
Robinson. 2 Moreover, the “interests" of
the testifying physicians here were different
-
2we reject appellant's simplistic argument
that because three of the four witnesses were
partners, their similar views should only be
regarded as a single opinion.
from those present in Robinson. Unlike Dr.
Beard, these physicians did not recommend
totally different courses of treatment but
instead testified that Dr. Azima's care was
substandard by his failure to perform or have
performed certain tests to safeguard his
patients' health. 3 Additionally, there
was no suggestion that any of the physicians
were continuing to treat these patients and,
accordingly, there is no showing of continued
Financial interests in the patients on the
part of the witnesses.
Based on the above, we hold Robinson
inapplicable to the instant case. As the
order of the Department of Professional Regu-
3specifically, appellant failed to use a blood
test to determine pregnancy before inserting
an IUD in a woman who exhibited symptoms of
pregnancy; and failed to determine a woman's
Rh factor and hemoglobin level at the time of
a termination procedure and failed to take
appropriate steps to recognize that he had
not, in fact, terminated the pregnancy.
lation is supported by competent and substan-
tial evidence, it is AFFIRMED.
BOOTH, Chief Judge, and WIGGINTON, J.,
CONCUR.
APPENDIX -- SECTION II
II. Final Order o. the Board of
Medical Examiners, State of
Florida.
BEFORE THE BOARD OF MEDICAL EXAMINERS
DEPARTMENT OF PRO- DPR CASE NOS.
FESSIONAL REGULATION, 0034574, 0014227,
0014657, 0014312,
Petitioner, 0018786
vs.
DOAH CASE NO.
ALI A. AZIMA, M.D., 83-1205, 83-2589,
Respondent. LICENSE NO.
/ ME 20485
FINAL ORDER OF THE
BOARD OF MEDICAL EXAMINERS
This cause came before the Board of
Medical Examiners (Board) pursuant to Section
120.57(1)(b)(9), Florida Statutes, on Decem-
ber 1, 1984, in Miami, Florida for the pur-
pose of considering the hearing officer's
Recommended Order (a copy of which is attach-
ed hereto) in the above-styled cause. Peti-
tioner, Department of Professional Regula-
tion, was represented by William M. Furlow,
Esquire; Respondent was present and repre-
sented by Bernard H. Dempsey, Jr., Esquire
and Richard Lee Barrett.
Upon review of the recommended order,
the argument of the parties, and after a re-
view of the complete record in this case, the
Board makes the following findings and conclu-
sions.
FINDINGS OF FACT
is The exceptions to the recommend-
ed Order filed by Respondent are rejected in
that they would require the Board to reweigh
the evidence presented. This the Board may
not do. Wagner v. Department of Professional
Regulation, 405 So.2d 471. In addition, the
Board finds no reason to believe the hearing
‘otficer failed to consider any of the evi-
dence presented.
a's The hearing officer's findings
of fact are approved and adopted in toto anda
are incorporated by reference herein.
Je There is competent substantial
evidence in the record to support the Board's
findings of fact.
CONCLUSIONS OF LAW
a‘ The Board has jurisdiction of
this matter pursuant to the provision of Sec-
tion 120.57(2), Florida Statutes, and Chapter
458, Fiorida Statutes.
Ss The hearing officer's conclu-
sions of law are approved and adopted in toto
and are incorporated by reference herein.
3% There is competent substantial
evidence in the record to support the Board's
conclusions of law.
DISPOSITION
Upon a review of the complete record
in this case, the Board determines that the
penalty recommended by the hearing officer be
altered. WHEREFORE,
IT IS HEREBY ORDERED AND ADJUDGED
that:
Le Respondent's license to practice
medicine in Florida shall be suspended for a
period of one year, with the specific provi-
sion that in six months Respondent may re-
quest that the Board stay the second six
months of the suspension.
a Upon the termination or stay of
the suspension, Respondent's license to prac-
tice medicine in Florida shall be placed on
probation for a period of three years, sub-
ject to the term and condition that Respon-
dent make semi-annual appearances before the
Board.
36 During the periods of suspension
and probation, Respondent shall earn fifty
(50) hours of Category 1 continuing medical
education annually. This Order takes effect
upon filing.
Pursuant to Section 120.59, Florida
Statutes, the parties are hereby notified
that they may appeal this final order by fil-
ing one copy of a notice of appeal with the
clerk of the agency and by filing the filing
fee and one copy of a notice of appeal with
the District Court of Appeal within thirty
days of the date this order is filed, as pro-
vided in Chapter 120, Florida Statutes, and
the Florida Rules of Appellate Procedure.
DONE AND ORDERED this me day of
January, 1985.
BOARD OF MEDICAL EXAMINERS
Richard J. Feinstein, M.D.
CHAIRMAN :
APPENDIX -- SECTION III.
III. Text of Statutes, 1 Regula-
tions and Constitutional Pro-
visions Which the Case Involve:
§390.001, Fla. Stat., Termination of preg
nancies
* * *
(7) Fetal remains.--Fetal remain:
shall be disposed of in a sanitary and appro
priate manner and in accordance with standar:
health practices, as provided by rule of th
Department of Health and Rehabilitative Servi
ces. Failure to dispose of fetal remains is
accordance with department rules is a misde
meanor of the second degree, punishable a:
provided in s. 775.082, s. 775.083, or s
775.084.
lpfext added to statutes subsequent to January
FOOTNOTE CONTINUED ON NEXT PAGE,
betel
Vl
§458.331, Fla. Stat., Grounds for discipli-
nary action; action by the board
(1) The following acts shail consti-
tute grounds for which the disciplinary
actions specified in subsection (2) may be
taken:
(a) Attempting to obtain, obtaining,
or renewing a license to practice medicine by
bribery, by fraudulent misrepresentations, or
through an error of the department or the
board.
(b) Having a license to practice
medicine revoked, suspended, or otherwise
acted against, including the denial of licen-
16, 1985, when the Board of Medical Examiners
rendered its Final Order is underscored.
Unless otherwise noted (see note 2), there
were no deletions or other revisions to the
Statutes between January 16, 1985, and the
filing date of this Petition for Writ of
Certiorari.
sure, by the licensing authority of anothe
state, territory, Or country.
(c) Being convicted or found guilty
regardless of adjudication, of a crime in an
jurisdiction which directly relates to th
practice of medicine or to the ability t
practice medicine. Any plea of nolo conten
dere shall be considered a conviction fo
purposes of this chapter.
(d) False, deceptive, or misleadin
advertising.
(e) Advertising, practicing, o
attempting to practice under a name othe
than one's own.
(f£) Failing to report to the depart
ment any person whom the licensee knows is i
violation of this chapter or of the rules o
the department or the board. However, if th
licensee verifies that the person is activel
participating in a board-approved program for
the treatment of a physical or mental condi-
tion, he is required only to report such per-
son to an impaired professional consultant.
(g) Aiding, assisting, procuring, or
advising any unlicensed person to practice
medicine contrary to this chapter or to a
rule of the department or the board.
(h) Failing to perform any statutory
or legal obligation placed upon a licensed
physician.
(i) Making or filing a report which
the licensee knows to be false, intentionally
or negligently failing to file a report or
record required by state or federal law, will-
fully impeding or obstructing such filing or
inducing another person to do so. Such
reports or records shall include only those
which are signed in the capacity as a
licensed physician.
(3) Paying or receiving any commis-
sion, bonus, kickback, or rebate, or engaging
in any split~-fee arrangement in any form what-
soever with a physician, organization,
agency, Or person, either directly or in-
directly, for patients referred to providers
of health care goods and services, including,
but not limited to, hospitals, nursing homes,
clinical laboratories, ambulatory surgical
centers, Or pharmacies. The provisions of
this paragraph shall not be construed to pre-
vent a physician from receiving a fee for
professional consultation services.
(k) Exercising influence within a
patient-physician relationship for purposes
of engaging a patient in sexual activity. A
patient shall be presumed to be incapable of
giving free, full, and informed consent to
sexual activity with his or her physician.
(1) Making deceptive, untrue, or
fraudulent representations in the practice of
medicine or employing a trick or scheme in
the practice of medicine when such scheme or
trick fails to conform to the generally pre-
vailing standards of treatment in the medical
community.
(m) Soliciting patients, either per-
sonally or through an agent, through the use
of fraud, intimidation, undue influence, or a
form of overreaching or vexatious conduct. A
solicitation is any communication which
directly or implicitly requests an immediate
Oral response from the recipient.
(n) Failing to keep written medical
records justifying the course of treatment of
the patient, including, but not limited to,
patient histories, examination results, an
test results.
(oOo) Exercising influence on th
patient or client ii such a Manner as t
exploit the patient or client for financiée
gain of the licensee or of a third part
which shall include, but not be limited tc
the promoting or selling of services, goods
appliances, or drugs and the promoting c
advertising on any prescription form of
community pharmacy unless the form shall a's
state "This prescription may be filied at an
pharmacy of your choice."
(p) Performing professional service
which have not been duly authorized by th
patient or client, or his legal representa
tive, except as provided ins. 743.064
s. 768.13, or s. 768.46.
-
(q) Prescribing, dispensing, admini-
stering, mixing, or otherwise preparing a
legend drug, including any controlled sub-
stance, Other than in the course of the physi-
cian's professional practice. For the pur-
poses of this paragraph, it shall be legally
presumed that prescribing, dispensing, admin-
istering, mixing, or otherwise preparing
legend drugs, including all controlled sub-
Stances, inappropriately or in excessive or
inappropriate guantities is not in the best
interest of the patient and is not in the
course of the physician's professional prac-
tice, without regard to his intent.
(r) Prescribing, dispensing, or
administering any medicinal drug appearing on
any schedule set forth in chapter 893 by the
physician to himself, except one prescribed,
dispensed, or administered to the physician
by another practitioner authorized to pre-
scribe,\ dispense, or administer medicinal
drugs.
(s) Being unable to practice medi-
cine with reasonable skill and safety to
patients by reason of illness or use of
alcohol, drugs, narcotics, chemicals, or any
other type of material or as a result of any
mental or physical condition. In enforcing
this paragraph, the department shall have,
upon probable cause, authority to compel a
physician to submit to a mental or physical
examination by physicians designated by the
department. Failure of a physician to submit
to such examination when so directed shall
constitute an admission of the allegations
against him, unless the failure was due to
circumstances beyond his control, consequent
upon which a default and final order may be
A-20
entered without the taking of testimony or
presentation of evidence. A physician
affected under this paragraph shall at reason-
able intervals be afforded an opportunity to
demonstrate that he can resume the competent
practice of medicine with reasonable skill
and safety to patients. In any proceeding
under this paragraph, neither the record of
proceedings nor the order entered by the
board shall be used against a physician in
any other proceeding.
(t) Gross or repeated malpractice
or the 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. The board
Shall give great weight to the provisions of
Ss. 768.45 when enforcing this paragraph. As
used in this paragraph, “repeated malprac-
tice" includes, but js not limited to, three
Or more claims for medical malpractice within
the previous 5-year period resulting in indem-
nities being paid.in excess of $10,000 each
to the claimant in a judgment or settlement
and which incidents involved negligent con-
duct by the physician. As _ used in this para-
graph, “gross malpractice" or "the 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 cir-
cumstances," shall not be construed so as to
require more than one instance, event, or
act.
(u) Performing any procedure or pre-
scribing any therapy which, by the prevailing
Standards of medical practice in the com-
munity, would constitute experimentation on a
human subject, without first obtaining full,
informed, and written consent.
(v) Practicing or offering to prac-
tice beyond the scope permitted by law or
accepting and performing professional respon-
sibilities which the licensee knows or has
reason to know that he is not competent to
perform.
(w) Delegating professional respon-
sibilities to a person when the licensee dele-
gating such responsibilities knows or has
reason to know that such person is net quali-
fied by training, experience, or licensure to
perform them.
(x) Violating any provision of this
chapter, a rule of the board or department,
Or a lawful order of the board or department
previously entered in a disciplinary hearing
or failing to comply with a lawfully issued
subpoena of the department.
(y) Conspiring with another licensee
Or with any other person to commit an act, or
committing an act, which would tend to
coerce, intimidate, or preclude another
licensee from lawfully advertising his ser-
vices.
(z) Procuring, or aiding or abetting
in the procuring of, an unlawful termination
of pregnancy.
(aa) Presigning blank prescription
forms.
(bb) Prescribing any medicinal drug
appearing on schedule II in chapter 893 by
the physician for office use.
(cc) Prescribing, ordering, dispens-
ing, administering, supplying, selling, or
giving any drug which is an amphetamine or
sympathomimetic amine drug or a compound
designated as a Schedule II controlled sub-
stance, pursuant to chapter 893, to or for
any person except for:,
Ba The treatment of narcolepsy;
hyperkinesis; behavioral syndrome in children
characterized by the developmentally inappro-
priate symptoms of moderate to severe dis-
tractability, short attention span, hyper-
activity, emotional lability, and impul-
Sivity; or drug-induced brain dysfunction; or
Zs The differential diagnostic
psychiatric evaluation of depression or the
treatment of depression shown to be refrac-
tory to other therapeutic modalities; or
3. . The clinical investigation of
the effects of such drugs or compounds when
an investigative protocol therefor is submit-
ted to, reviewed, and approved by the board
before such investigation is begun.
(dd) Failing to supervise adequately.
the activities of those physician's assis-
tants, emergency medical technicians, or
advanced registered nurse practitioners act-
ing under the supervision of the physician.
(ee) Prescribing, ordering, dispens-
ing, administering, supplying, selling, or
giving growth hormones, testosterone or its
analogs, human chorionic gonadotropin (HCG),
or other hormones for the purpose of muscle
building or to enhance athletic performance.
For the purposes of this subsection, the term
"muscle building" does not include the treat-
ment of injured muscle. A prescription writ-
ten for the drug products listed above may be
dispensed by the pharmacist with the presump-
tion that the prescription is for legitimate
medical use.
(2) When the board finds any person
guilty of any of the grounds set forth in
subsection (1), it may enter an order impos-
ing one or more of the following penalties:
(a) Refusal to certify to the depart-
ment an application for licensure.
(b) Revocation or suspension of a
license.
(c) Restriction of practice.
(d) Imposition of an administrative
fine not to exceed $1,000 for each count or
separate offense.
(e) Issuance of a reprimand.
(f£) Placement of the physician on
probation for a period of time and subject to
such conditions as the board may specify,
including, but not limited to, requiring the
physician to submit to treatment, to attend
continuing education courses, to submit to
reexamination, or to work under the super-
vision of another physician.
(3) the board shall not reinstate
the license of a physician, or cause a
license to be issued to a person it has
deemed unqualified, until such time as it is
satisfied that he has complied with all the
terms and conditions set forth in the final
order and that such person is capable of safe-
ly engaging in the practice of medicine.
(4) The board shall by rule estab-
lish guidelines for the disposition of dis-
ciplinary cases involving specific types of
violations. Such guidelines may include mini-
mum and maximum fines, periods of supervision
Or probation, or conditions of probation or
reissuance of a license.
(5) Upon the department's receipt
from the Department of Insurance of the name
of a physician having three or more claims
with indemnities exceeding $10,000 each with-
in the previous, 5-year period, including
reports for the 3-year period preceding the
effective date of this act, the department
shall investigate the occurrences upon which
the claims were based and determine if action
by the department against the physician is
warranted.
(6) Upon the department's receipt
from the Department of Health and Rehabilita-
tive Services pursuant to s. 395.041 of the
name Of a physician whose conduct may consti-
tute grounds for disciplinary action by the
department, the department shall investigate
the occurrences upon which the report was
based and determine if action by the
department against the physician is
warranted.
§768.45, Fla. Stat., Medical negligence;
standards of recovery. “
(1) In any action for recovery of
2Effective October 1, 1985, §768.45, Fla.
Stat., was revised as follows: subsection
(1) was rewritten; the last sentence of sub-
section (2)(b) was added; subsection
(2)(c)(2) was rewritten to substitute refer-
ence to “prevailing professional standard"
for “accepted standard" of care in subsec-
tions (3)(a) and (4) and subsection (5) was
added. Prior to the 1985 amendment, subsec-
tions (1) and (2)(c) provided:
(1) In any action for recov-
ery Of damages based on the
death or personal injury of
any person in which it is
alleged that such death or
injury resulted from the neg-
ligence of a health care pro-
vider as defined in s. 768.50
(2)(b), the claimant shall
have the burden of proving by
the greater weight of evi-
dence that the alleged ac-
tions of the health care pro-
vider represented a breach of
the accepted standard of care
for that health care provider.
The accepted standard of care
for a given health care pro-
vider shall be that level of
FOOTNOTE CONTINUED ON NEXT PAGE,
damages based on the death or personal injury
of any person in which it is alleged that
such death or injury resulted from the negli-
gence of a health care provider as defined in
s. 768.50(2)(b), the claimant shall have the
burden of proving by the greater weight of
care, skill, and treatment
which is recognized by a rea-
sonably prudent similar
health care provider as being
acceptable under similar con-
ditions and circumstances.
(2)(c) The purpose of this subsec-
tion is to establish a relative stan-
dard of care for various categories
and classifications of health care
providers. Any health care provider
may testify as an expert in any ac-
tion if he:
Ae Is a "Similar health care
provider" pursuant to paragraph (a)
or (b); or,
as Is not a Similar health
care provider pursuant to paragraph
(a) or (b) but, to the satisfaction
of the court, possesses sufficient
training, experience, and knowledge
to provide such expert testimony as
to the acceptable standard of care in
a given cause.
evidence that the alleged actions of the
health care pruvider represented a breach of
the prevailing professional standard of care
for that health care provider. The prevail-
ing professional standard of care for a given
health care provider shall be that level of
care, Skill, and treatment which, in light of
all relevant surrounding circumstances, is
recognized as acceptable and appropriate by
reasonably prudent similar health care pro-
viders.
(2) (a) If the health care provider
whose negligence is claimed to have created
the cause of action is not certified by the
appropriate American board as being a special-
ist, is not trained and experienced in a medi-
cal specialty, or does not hold himself out
as a specialist, a "Similar health care
provider" is one who:
he Is licensed by the appropriate
regulatory agency of this state;
r Is trained and experienced in
the same discipline or school of practice;
and
: Practices in the same or similar
medical community.
(b) If the health care provider
whose negligence is claimed to have created
the cause of action is certified by the appro-
priate American board as a specialist, is
trained and experienced in a medical special-
ty, or holds himself out as a specialist, a
"similar health care provider" is one who:
+ Is trained and experienced in
the same specialty; and
ae Is certified by the appropriate
American board in the same specialty. How-
ever, if any health care provider described
in this paragraph is providing treatment or
diagnosis for a condition which is not within
his specialty, a specialist trained in the
treatment or diagnosis for that condition
shall be considered a “Similar health care
provider."
(c) The purpose of this subsection
is to establish a relative standard of care
for various categories and classifications of
health care providers. Any health care pro-
vider may testify as an expert in any action
if he:
as Is a Similar health care pro-
vider pursuant to paragraph (a) or paragraph
(b); or
Se Is not a similar health care
provider pursuant to paragraph (a) or para-
graph (b) but, to the satisfaction of the
court, possesses sufficient training, experi-
ence, and knowledge as a resuit of practice
or teaching in the specialty of the defendant
Or practice or teaching in a related field of
medicine, so as to be able to provide such
expert testimony as to the prevailing profes-
sional standard of care in a given field of
medicine. Such training, experience, or
knowledge must be as a result of the active
involvement in the practice or teaching of
medicine within the 5-year period before the
incident giving rise to the claim.
(3) (a) If the injury is claimed to
have resulted from the negligent affirmative
medical intervention of the health care pro-
vider, the claimant must, in order to prove a
breach of the prevailing professional stan-
dard of care, show that the injury was not
within the necessary or reasonably foresee-
able results of the surgical, medicinal, or
diagnostic procedure constituting the medical
intervention, if the intervention from which
the injury is alleged to have resulted was
carried out in accordance with the prevailing
professional standard of care by a reasonably
prudent similar health care provider.
(b) The provisions of this subsec-
tion shall apply only when the medical inter-
vention was undertaken with the informed con-
sent of the patient in compliance with the
provisions of s. 768.46.
(4) The existence of a medical
injury shall not create any inference or pre-
sumption of negligence against a health care
provider, and the claimant must maintain the
burden of proving that an injury was proxi-
mately caused by a breach of the prevailing
professional standard of care by the health
care provider. However, the discovery of the
presence of a foreign body, such as a sponge,
clamp, forceps, surgical needle, or other
paraphernalia commonly used in surgical, exam-
ination, or diagnostic procedures, shall be
prima facie evidence on the part of the
health care provider.
(5) The Legislature is cognizant of
the changing trends and techniques for the
delivery of health care in this state and the
discretion that is inherent in the diagnosis,
care, and treatment of patients by different
health care providers. The failure of a
health care provider to order, perform, or
administer supplemental diagnostic tests
shall not be actionable if the health care
provider acted in good faith and with due
regard for the prevailing professional stan-
dard of care.
FLORIDA ADMINISTRATIVE PROCEDURE ACT, CHAP-
TER 120, FLA. STAT.
§120.57, Fla. Stat., Decisions which affect
substantial interests
The provisions of this section apply
in all proceedings in which the substantial
interests of a party are determined by an
agency, unless such proceedings are exempt
pursuant to subsection (5). Unless waived by
all parties, subsection (1) applies whenever
the proceeding involves a disputed issue of
material fact. Unless otherwise agreed, sub-
section (2) applies in all other cases.
(1) Formal proceedings.--
(a) A hearing officer assigned by
the division shall conduct all hearings under
this subsection, except for:
Sa Hearings before agency heads or
a member thereof other than an agency head or
a member of an agency head within the Depart-
ment of Professional Regulation;
as Hearings before the Unemployment
Appeals Commission in unemployment compensa-
tion appeals, unemployment compensation
appeals referees, and special deputies pur-
Ssuant to s. 443.141;
: Hearings regarding drivers'
licensing pursuant to chapter 322;
4, Hearings conducted within the
Department of Health and Rehabilitative Ser-
vices in the execution of those social and
economic programs administered by the former
Division of Family Services of said depart-
ment prior to the reorganization effected by
cnapter 75-48, Laws of Florida;
. Hearings in which the division
is a party, in which case an attorney
assigned by the Administration Commission
shall be the hearing officer;
6. Hearings which involve student
disciplinary suspensions or expulsions and
which are conducted by educational units;
Vs Hearings of the Public Employees
Relations Commission in which a determination
is made of the appropriateness of the bargain-
ing unit, as provided in s. 447.307; and
8. Hearings held by the Department
of Agriculture and Consumer Services pursuant
to chapter 601.
(b) In any case to which this subsec-
tion is applicable, the following procedures
apply:
a A request for a hearing shall be
granted or denied within 15 days of receipt.
a All parties shall be afforded an
opportunity for a hearing after reasonable
notice of not less than 14 days; however, the
14-day notice requirement may be waived with
the consent of all parties. In a preliminary
hearing for the revocation of parole, no less
than 7 days' notice shall be given. In a
hearing involving a student disciplinary sus-
pension or expulsion conducted by an educa-~
tional unit, the 14-day notice requirement
may be waived by the agency head or the hear-
ing officer without the consent of the par-
ties. The notice shall include:
a. A statement of the time, place,
and nature of the hearing.
b. A statement of the legal author-
ity and jurisdiction under which the hearing
is to be held.
Ce A reference to the particular
sections of the statutes and rules involved.
a. Except for any hearing before an
unemployment compensation appeals referee, a
short and plain statement of the matters
asserted by the agency and by all parties of
record at the time notice is given. If the
agency or any party is unable to state the
matters in sufficient detail at the time ini-
tial notice is given, the notice may be limit-
ed to a statement of the issues involved, and
thereafter, upon timely written application,
a more definite and detailed statement shall
be furnished not less than 3 days prior to
the date set for the hearing.
. Except for any proceeding con-
ducted as prescribed in s. 120.54(4) or
s. 120.56, a petition or request for a hear-
ing under this section shall be filed with
the agency. If the agency elects to request
a hearing officer from the division, it shall
so notify the division within 10 days of re-
ceipt of the petition or request. When the
Florida Land and Water Adjudicatory Commis-
sion receives a notice of appeal pursuant to
s. 380.07, the commission shall notify the
division within 60 days of receipt of the
notice of appeal if the commission elects to
request the assignment of a hearing officer.
On the request of any agency, the division
shall assign a hearing officer with due re-
gard to the expertise required for the partic-
ular matter. The referring agency shall take
no further action with respect to the formal
proceeding, except as a party litigant, as
long as the division has jurisdiction over
the formal proceeding. Any party may request
the disqualification of the hearing officer
by filing an affidavit with the division
prior to the taking of evidence at a hearing,
stating the grounds with particularity.
4. All parties shall have an oppor-
tunity to respond, to present evidence and
argument on all issues involved, to conduct
cross-examination and submit rebuttal evi-
dence, to submit proposed findings of facts
and orders, to file exceptions to any order
or hearing officer's recommended order, and
to be represented by counsel. When appro-
priate, the general public may be given an
opportunity to present oral or written commun-
ications. If the agency proposes to consider
such material, then all parties shall be
given an opportunity to cross-examine or chal-
lenge or rebut it.
- The record in a case governed by
this subsection shall consist only of:
a. All notices, pleadings, motions,
and intermediate rulings;
b. Evidence received or considered;
Ce A statement of matters official-
ly recognized;
d. Questions and proffers of proof
and objections and rulings thereon;
e. Proposed findings and excep-
tions;
f. Any decision, opinion, proposed
Or recommended order, or report by the
officer presiding at the hearing;
g. All staff memoranda or data sub-
mitted to the hearing officer during the hear-
ing or prior to its disposition, after notice
of the submission to all parties, except com-
munications by advisory staff as permitted
under s. 120.66(1), if such communications
are public records;
h. All matters placed on the record
after an ex parte communication pursuant to
s. 120.66(2); and
Ae The official transcript.
6. The agency shall accurately and
completely preserve all testimony in the pro-
ceeding, and, on the request of any party, it
Shall make a full or partial transcript avail-
able at no more than actual cost. In any
proceeding before a hearing officer initiated
by a consumptive use permit applicant pur-
Suant to subparagraph 13, the applicant shall
bear the cost of accurately and completely
preserving all testimony and providing full
Or partial transcripts to the water manage-
ment district. At the request of any party,
full or partial transcripts shall be provided
at no more than cost.
ene
Ve Findings of fact shall be based
exclusively on the evidence or record and on
matters officially recognized.
B Except as provided in subpara-
graph 12, the hearing officer shall complete
and submit to the agency and all parties a
recommended order consisting of his findings
of fact, conclusions of law, interpretation
of administrative rules, and recommended
penalty, if applicable, and any other informa-
tion required by law or agency rule to be
containea in the final order. The agency
Shall allow each party at least 10 days in
which to submit written exceptions to the
recommended order.
Pi The agency may adopt the recom-
mended order as the final order of the agency.
The agency in its final order may reject or
modify the conclusions of law and interpreta-
tion of administrative rules in the recommend-
ed order, buy may not reject or modify the
findings of fact unless the agency first
determines from a review of the complete
record, and states with particularity in the
order, that the findings of fact were not
based upon competent substantial evidence or
that the proceedings on which the findings
were based did not comply with essential
requirements of law. The agency may acccept
the recommended penalty in a recommended
order, but may not reduce or increase it with-
out a review of the complete record and with-
out stating with particularity its reasons
therefor in the order, by citing to the
record in justifying the action. When there
is an appeal, the court in its discretion may
award reasonable attorney's fees and costs to
the prevailing party if the court finds that
the appeal was frivolous, meritless, or an
abuse of the appellate process or that the
agency action which precipitated the appeal
was a gross abuse of the agency's discretion.
10. If the hearing officer assigned
to a hearing becomes unavailable, the divi-
sion shall assign another hearing officer who
shall use any existing record and ieceive any
aGditional evidence or argument, if any,
which the new hearing officer finds neces-
sary.
ll. A hearing officer who is a mem-
ber of an agency head may participate in the
formulation of the final order of the agency,
provided he has completed all his duties as
hearing officer.
12. In any application for a license
or merger pursuant to title XXXVIII which is
referred by the agency to the division for
hearing pursuant to this section, the hearing
officer shall complete and submit to the agen-
cy and to ail parties a written report con-
sisting of findings of fact and rulings on
evidentiary matters. The agency shall allow
each party at least 10 days in which to sub-
mit written exceptions to the report.
13. In any application for a consump-
tive use permit pursuant to oart II of chap-
ter 373, the water managemert district on its
Own motion may, or, at the request of the
applicant for the permit, shall, refer the
matter to the division for the appointment of
a hearing officer to conduct a hearing under
this section.
§120.68 Judicial review.
(1) A party who is adversely affect-
ed by final agency action is entitled to judi-
cial review. For purposes of this section, a
district school board, whose decision is re-
viewed under the provisions of s. 231.36 and
whose final action is modified by a superior
administrative decision, shall be a party
entitled to judicial review of the final ac-
tion. A preliminary, procedural, or interme-
diate agency action or ruling is immediately
reviewable if review of the final agency deci-
sion would not provide an adequate remedy.
(2) Except in matters for which judi-
cial review by the Supreme Court is provided
by law, all proceedings for review shall be
instituted by filing a petition in the dis-
trict court of appeal in the appellate dis-
trict where the agency maintains its headquar-
ters or where a party resides. Review pro-
ceedings shall be conducted in accordance
with the Florida Appellate Rules.
(3) The filing of the petition does
not itself stay enforcement of the agency
decision, but if the agency decision has the
effect of suspending or revoking a license,
supersedeas shall be granted as a matter of
right upon such conditions as are reasonable,
unless the court, upon petition of the agen-
cy, determines that a supersedeas would con-
stitute a probable danger to the health, safe-
ty, or welfare of the state. The agency may
also grant a stay upon appropriate terms,
but, whether or not the action has the effect
of suspending or revoking a license, a peti-
tion to the agency for a stay shall not be a
prerequisite to a petition to the court for
Supersedeas. In any event, the orader shall
specify the conditions, if any, upon which
the stay or supersedeas is granted.
(4) Judicial review of any agency
shall be confined to the record transmitted
and any additions made thereto in accordance
with subsection (6).
(5) The record for judicial review
shall consist of the following:
(a) The agency's written document
expressing the order, the statement of rea-
sons therefore if issued, and the record
under s. 120.57, if review of proceedings
under that section is sought.
(b) The agency's written document
expressing the action, the statement of rea-
sons therefor, if issued, and the materials
considered by the agency under s. 120.54, if
review is sought of proceedings under that
section.
(c) The agency's written document
expressing the j:ction, and other written docu-
ments identified by the agency as having been
considered by it before its action and used
as a basis for its action, if review is
sought of proceedings under s. 120.56 or
s. 120.565 or if there has been no proceeding
unger s. 120.54 or s. 120.57.
(6) When there has been no hearing
prior to agency action and the reviewing
court Finds that the validity of the action
depends upon disputed facts, the court shall
order the agency to conduct a prompt, fact-
finding proceeding under this act after hav-
ing a reasonable opportunity to reconsider
its determination on the record of the pro-
ceedings.
(7) The reviewing court shall deal
separately with disputed issues of agency
procedure, interpretations of law, determina-
tions of fact, or policy within the agency's
exercise of delegated discretion.
(8) The court shall remand the case
for further agency action if it finds that
either the fairness of the proceedings or the
correctness of the action may have been im-
paired by a material error in procedure or a
failure to follow prescribed procedure. Fail-
ure Of any agency to comply with s. 126.53
Shall be presumed to be a material error in
procedure.
(9) If the court finds that the agen-
cy has erroneously interpreted a provision of
law and that a correct interpretation compels
a particular action, it shall:
(a) Set aside or modify the agency
action, or
(b) Remand the case to the agency
for further action under a correct interpreta-
tion of the provision of law.
(10) If the agency's action depends
on any fact found by the agency in a proceed-
ing meeting the requirements of s. 120.57 of
the act, the court shall not substitute its
judgment for that of the agency as to the
weight of the evidence on any disputed find-
ing of fact. The court shall, however, set
aside agency action or remand the case to the
agency if it finds that the agency's action
depends on any finding of fact that is not
Supported by competent substantial evidence
in the record.
(ll) If the agency's action depends
on facts determined pursuant to subsection
(6), the court shall set aside, modify, or
order agency action if the facts compel a
ne
particular action as a matter of law, or it
may remand the case to the agency for further
examination and action within the agency's
responsibility.
(12) The court shall remand the case
to the agency if it finds the agency's exer-
cise of discretion to be:
(a) Outside the range of discretion
delegated to the agency by law;
(b) Inconsistent with an agency
rule, an officially stated agency policy, or
a prior agency practice, if deviation there-
from is not explained by the agency; or
(c) Otherwise in violation of a con-
Stitutional or statutory provision;
but the court shall not substitute its judg-
ment for that of the agency on an issue of
discretion.
(13) (a) The reviewing court's deci-
sion may be mandatory, prohibitory, or declar-
atory in form, and it shall provide whatever
relief is appropriate irrespective of the
original form of the petition. The court
Le Order agency action required by
law, order agency exercise of discretion when
required by law, set aside agency action,
remand the case for further agency proceed-
ings, Or decide the rights, privileges, obli-
gations, requirements, or procedures at issue
between the parties, and
r - Order such ancillary relief as
the court finds necessary to redress the ef-
fects of official action wrongfully taken or
withheld.
(b) If the court sets aside agency
action or remands the case to the agency for
further proceedings, it may make such inter-
locutory order as the court finds necessary
to preserve the interests of any party and
the public further proceedings or agency ac-
tion,
(14) Unless the court finds a ground
for setting aside, modifying, remanding, or
ordering agency action or ancillary celief
under a specified provision of this section,
it shall affirm the agency's action.
Fla. Admin. Code, Rule 10D-72.16
§10D-72.16 Disposal of Fetal Remains.
All fetal remains shall be disposed of in
a sanitary, nuisance free manner. Incinera-
tion or burial of such remains, as well as
other nuisance free methods, are acceptable
so long as the licensing agency is assured
that the disposal method utilized is nuisance
free.
U.S. CONST., AMEND. XIV, §1
CITIZENSHIP; PRIVILEGES AND IMMUNITIES; DUE
PROCESS; EQUAL PROTECTION; APPORTIONMENT OF
REPRESENTATION; DISQUALIFICATION OF OFFICERS;
PUBLIC DEBT; ENFORCEMENT
Section l. All persons born or
naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of
the United States and of the State wherein
they reside. No State shall make or enforce
any law which shall abridge the privileges or
immunities of citizens of the United States;
nor shall any State deprive any person of
life, liberty, or property, without due pro-
cess of law; nor deny to any person within
its jurisdiction the equal protection of the
laws.
ee eT en ae etwas
APPENDIX -~- SECTION IV
IV. Portion of Record Demonstrating
That Both Federal Questions Were
Timely and Properly Raised.
The following excerpts are from Peti-
tioner's briefs to the District Court of Ap-
peal for the First District of Florida. Re-
garding the first question presented:
What is perhaps the most disturbing
feature about prosecutions under §458.331(1)
(t), Fla. Stat., is that doctors [sic] may be
denied the right to practice medicine based
on unwritter and uncodified standards deter-
mined by a loosely assembled group of his
peers. As such, medical licensees are put on
no notice whatsoever regarding what conduct
is prohibited. This leaves the DPR free to
create and enforce standards which are devel-
oped at will, promulgated ad hoc, and en-
forced ex post facto. If a physician cannot
feel safe by following to the letter the writ-
ten promulgated standards of his profession
A-63
without fear of being ambushed by zealous DPR
prosecutors wielding a stable of "interested
physicians," then no doctor anywhere can prac-
tice his profession without performing proce-
dures which are unnecessary yet are performed
"primarily to protect us and the clinic."
[Petitioner's Initial Brief, pp. 39-40].
* * *
The standard by which Appellant is to
be judged, “that level of care, skill and
treatment which is recognized by a reasonably
prudent similar physician as being acceptable
under similar conditions and circumstances,"
is vague, ambiguous and subject to a wide
range of interpretation. The average jurist
has little idea what medical procedures are
appropriate in a given circumstance and even
less understanding about how the procedures
should be performed. [Petitioner's Reply
Brief, p. 1lj.
es eee
nt eet ees, ete ie”
Regarding the second question present-—
What is particularly interesting
about the Robinson case is that the only evi-
dence that Dr. Robinson's treatment was im-
proper came from a doctor who had, as the
court put it, “a professional interest in
having his course of treatment recognized as
being the ‘correct’ or ‘justifiable' one."
What makes the case so revealing in the in-
Stant proceeding is that all of the evidence
that Dr. AZIMA failed to meet medical stand-
ards was offered by Drs. Yankopolus, Water-
man, Cowdin and Sibley who also had an inter-
est in having their course of treatment recog-
nized as being the "correct" or "justifiable"
one. The court in Robinson said:
It should be absolutely self-
evident that suspending a
professional license solely
on the basis of the testimony
of one interested witness
does not even begin to ap-
proach the level of "“compe-
tent substantial evidence" as
A-65
required by section 120.57.
Dr. Beard's opinion as to why
extraction was the only avail-
able option in this case was
certainly relevant testimony.
But the hearing officer and
the petitioner's attorney
should have understood that
Dr. Beard would have a profes-
sional interest in having his
course of treatment recogniz-
ed as being the "correct" or
"justifiable" one. In addi-
tion, Dr. Beard had a continu-
ing financial interest in the
case in that the complainant
was, presumably, still his
patient. Without impugning
Dr. Beard's motives, we find
his testimony suspect. One
professional's opposing opin-
ion, without more, on a par-
ticular treatment is neither
substantial evidence of incom-
petence nor a measure of "gen-
erally prevailing peer perfor-
nance, * Cis. @8cCction
466.028(1)(y), Florida Stat-
utes.
The Department of Profession-
al Regulation, as well as the
specific professional boards
coming under its purview,
must remember that the suspen-
sion of a license which is
essential in the pursuit of
livelihood involves state
action. Such licenses may
not be revoked or suspended
without procedural due pro-
cess. Barry v. Barchi, 433
A-66
aati ha ki i
ented ss
0.8. 35, 99 8.Ct. 2642, 6:
L.86.20 365 (1979).
Id. at 932.
(Footnotes
omitted. Empha-
asis added.)
See also, Davis v. Department of Professional
Regulation, 457 So.2d 1074, 1077 (Fla. lst
DCA 1984); and Johnston v. Department of Pro-
fessional Regulation, 456 So.2d 939, 944
(Fla. lst DCA 1984), which cite Robinson with
approval and hold accordingly.
No more was presented in Petitioner's
hearing in the way of competent substantial
evidence than was presented in the Robinson
case. [Petitioner's Initial Brief, pp.
24-25].
* * *
Because such proceedings are penal in
nature, the courts have universally held that
the proof must be substantially greater than
that which is required to support convention-
al agency action. Bowling v. Department of
Insurance, 394 So.2d 165, 171 (Fla. lst DCA
A-67
1981). In other words, the proof must be
commensurate with the potential penalty.
Henderson Signs, Inc. v. Department of Trans-
———
portation, 397 So.2d 769 (Fla. lst DCA 1981);
Department of Professional Regulation v.
Whitney, 6 FALR 5033, 5045, DOAH Case No.
82-2557 (Final Order of Board of Medical Ex-
aminers, June 29, 1984).
In Bowling, this Court explained:
In a proceeding under a penal
Statute for suspension or
revocation of a valuable busi-
ness or professional license,
the term "competent substan-
tial evidence" takes on vigor-
ous implications that are not
so clearly present on other
occasions for agency action
under Chapter 120.
, ae * *
Evidence which is "substan-
tial" for one purpose may be
less so on another, graver
occezsion. One takes a stran-
ger's name at his word upon a
chance meeting, but wants
better proof to cash his
check.
Id. at 171.
(Footnote
omitted. )
This Court again emphasized its com-
mitment to the principles expressed in Bowl-
ing in its opinion in Davis v. Department of
Professional Regulation, 457 So.2d 1074, 1076
(Fla. lst DCA 1984):
In Bowling the court echoes
the concern expressed by the
Florida Supreme Court in
State v. Pattishail, Supra,
with regard to the higher
seriousness accorded to the
reguirement of substantiality
when the matter at stake is a
license that allows one to
earn a livelihood, saying
"when the proceeding may re-
sult in the loss of a valu-
able business or professional
license, the critical matters
in issue must be shown by
evidence which is indubitably
as ‘substantial’ as the conse-
guences." Bowling, supra, at
ie a In Bowling, the court
rejected the Department's
evidentiary findings on the
ground that they lacked a
substantial basis for estab-
lishing Bowling's guilt on
the eight counts with which
A-69
he was charged. The court
vacated the order revoking
Bowling's license.
[Petitioner's
Initial Brief,
pp. 20-21].
APPENDIX -- SECTION V.
V. Summary of the Case.
Preface
The following summary of testimony
and facts is material to this Court's consi-
deration of the questions presented. This
summary of the record demonstrates that Peti-
tioner had no prior notice of the medical
standards by which he was found guilty of
committing medical malpractice. Nor did the
Department of Professional Reguiation (herein-
after "DPR") prove by a preponderance of com-
petent substantial evidence:
a. that Dr. Azima was legal-
ly obligated to determine the
Rh factor of Ms. Kuchar's
blood;
b. that Dr. Azima did not
determine the Rh factor of
Ms. Kuchar's blood; and
Ce that Dr. Azima was re-
quired by law to send the
abortion tissue for a patho-
logical examination when Peti-
tioner, in full accordance
with the American College o!
OB/GYN standards, aware,
clearly determined through a
detailed visual examination
that fetal remains were
present and the abortion was
successful.
It is also noted that each of the expert wit-
nesses who testified against Dr. AZIMA treat-
ed one or more of the patients named in the
DPR complaint.1 Three of the four doctors
who testified against Petitioner, Drs.
lpr. Cowdin treated both Christine Sellers and
Holli Schmidt. Drs. Yankopolus and Waterman
treated Holli Schmidt, and Dr. Sibley treated
Coleen Lundy, who was also a complaining wit-
ness.
Yankopolus, Cowdin and Waterman, practice
together and that practice is hereinafter
referred to as the Yankopolus group.
1. The Petitioner
Dr. ALI AZIMA, the Petitioner, gradu-
ated from the Medical College at Tehran Uni-
versity, where he received his M.D. degree in
L9Gi . (R. 357-358). During three years of
residency in forensic medicine, he developed
a knowledge and expertise in clinical path-
ology. (R. 358-359). After coming to the
United States, Dr. AZIMA completed four more
years of internship and residency in gynecol-
ogy and obstetrics, including a fellowship in
internal medicine. He is a specialist in
Obstetrics and Gynecology (hereinafter refer-
red to as "OB/GYN") (R. 359) and has estab-
lished three subspecialties in oncology, endo-
crinology, and fetal internal medicine. (R.
360).
In 1974 Dr. AZIMA entered private
practice in Baltimore, Maryland. (R. 360-
361). In 1977, along with his wife, he estab-
lished a women's health clinic in Fort Myers,
Florida. (RR. 369). It was at this women's
health clinic that all of the complaining
patients in the instant proceedings were
treated. The clinic was licensed and met all
Standards and regulations for licensure dur-
ing 1981 and 1982, the relevant time periods
of this case. (R-368, 369).
Dr. AZIMA is a board-certified obste-
trician-gynecologist (R. 363). During all
periods relevant to this case, he was a mem-
ber of the Charlotte County Medical Society,
the Florida Medical Association, the American
Board of OB/GYN, and was also a Fellow of the
American College of Obstetricians and Gyne-
cologists. (R. 364).
A-74
Prior to this case, Dr. AZIMA had
deiivered approximately 5,000 or 6,000
babies, and had in the course of his practice
performed approximately 3,500 terminations of
pregnancy. At the hearing he estimated that
he has implanted as many as 1,000 intrauter-
ine devices. (R. 364-365). Until the in-
Stant proceedings, he had never before been
the subject of any malpractice complaints.
(R. 365).
2. The Petitioner's Medical Procedures
In 1977 Dr. AZIMA established proce-
dures to treat patients for both prenatal and
abortion services at his Ft. Myers clinic.
These procedures were based on his residency
training and textbooks and met with all of
the standards of the American College of Ob-
stetricians and Gynecologists. (R. 369-370).
As a member of the American College of Obste-
tricians and Gynecologists, he received all
of their literature. These publications were
the only published standards of his profes-
sion and from 1977 to the present, there were
no other published standards of his profes-
sion which he could follow. These facts were
not contested or otherwise refuted in the
record.
The procedures in place during 1981
and 1982 in the Fort Myers clinic were as
follows:
Upon entering the clinic, it was stan-
dard procedure for a patient to receive three
documents -- a consent form, an information
sheet, and a post-abortion instruction form.
(R. 371). Every patient had to sign the con-
sent form (R. 372) and the patient registra-
ticn record information sheets or else Dr.
AZIMA would not proceed with treatment. (R.
373). After a patient paid, the nurse brought
the chart to Dr. AZIMA and thereafter brought
the patient to his consultation room. (R.
374). Dr. AZIMA would then review the record
and question the patient. (R. 375).
Dr. AZIMA questioned the patients to
confirm their written information and deter-
mine whether they had overlooked anything,
such as medications or past medical history.
(R. 374-377). He would not proceed with any
pregnancy termination procedure until a preg-
nancy test had been completed and the patient
came to a final conclusion that she wanted
the abortion. (R. 377). To assure pregnan-
cy, Dr. AZIMA always administered a pregnancy
test, generally the UCG Slide test, which is
considered in the medical community to have a
high degree of reliability. (R. 379-380).
Dr. AZIMA testified that these proce-
dures were scrupulously followed for patients
Sellers/Kuchar, Schmidt and Baker, and that
he obtained from each of them information
concerning each patient's age, marital
status, number of prior pregnancies, men-
strual history and date of last menstrual
period. (R. 380-382). For every prenatal
and abortion patient, Dr. AZIMA testified
that he "always" determines the age of the
pregnancy, the blood type and Rh factor.
(R. 381-382). He does not necessarily write
down all information, but he always documents
abnormal findings. (R. 383).
After using an anatomy chart to in-
struct the patient and asking the patient
whether she has any questions (R-384), the
patient leaves the consultation room, voids
her bladder in the clinic lavatory and is led
by a nurse to the examination room where the
patient is prepared for an examination. (R.
385, 389). The detailed physical examination
is described at R. 389 and R. 390.
ee ee
In order to determine the actual age
of the pregnancy (R. 392-393), the OB/GYN
exam includes a pelvic examination. These
procedures clearly comport with required
OB/GYN standards. (R. 381, 391).
After the manual examination, he in-
forms the patient that he is going to insert
the speculum. He inspects the cervix for
abnormalities, cleanses the vagina with an
antiseptic solution, and then gives a para-
cervical block, which is an injection of one
per cent Xylocaine, used to dilate and sound
the uterine cavity. (R. 392-397).
Dilation of the cervix is accomplish-
ed with a cannula which is inserted into the
vagina. The cannula corresponds in size to
the age of the pregnancy. For example, a ten
millimeter cannula is used for a ten-week
pregnancy. (Rs. 397}. the cervix is dilated
one millimeter more than the size of the can-
nula to avoid discomfort to the patient.
(R. 399).
Once the abortion is performed (R.
409), the uterus is massaged to help it con-
tract and to reduce bleeding. (R. 410). At
that point Dr. AZIMA, finished with the opera-
tion, watches the patient, talks with her and
observes her condition. He also checks the
patient's blood pressure at that time. (R.
410-411).
Dr. AZIMA then performs a detailed
examination of the uterine product in order
to identify the products of conception, as
specifically detailed in the American College
of OB/GYN standards. [R. @21);.
If Dr. AZIMA is certain that fetal
parts have been removed, he disposes of tne
uterine product. This fully comports with
all Florida state regulations and statutes
regarding the disposal of such tissue. If
there are any doubts, he sends the specimen
to the pathologist for examination. (R. 412).
There is no requirement by any standard to
send every specimen to pathology. (R. 413).
Finally, the patient's blood pressure
is taken for ccmparison and if it has not
already been determined, the patient's blood
is typed to determine her Rh factor. (R.
438, €233} 4 If the patient is Rh neyative,
she is counseled that she may need RhoGam.
Dr. AZIMA counself Rh negative patients and
only offers the RhoGam, which they may refuse.
(R. 417).
The nurse then asks the patient to
Sit up and see how she feels. The patient is
told to lie down if there is any feeling of
weakness or dizziness. She is told to lie
Gown again if any dizziness occurs, otherwise
she dresses and proceeds to the recovery room.
(R. 417-418).
Dr. AZIMA then talks to the patient
about how she feels, provides medication, and
discusses contraceptive measures. (R. 418).
He instructs the patient to read the pink
instructional sheet again and to return in
one week. (R. 419). Because abortion is a
Surgical procedure, a one-week return visit
was a critical part of Dr. AZIMA's standard
procedures. It is necessary in order to
check for complications. (R. 419-420).
During the hearing, Dr. AZIMA's testi-
mony as to these medical procedures and to
their accordance with accepted professional
standards was detailed and was in no way con-
travened by any evidence or testimony.
3. Case History and Testimony
Relating to Holli Schmidt
(Count II of the March 15, 1983, Complaint)
A. Case History of Holli Schmidt
Dr. AZIMA was specifically found guil-
ANE NAS md MPa os
8 al eRe Rei ons
Odes) cat iets
ty of violating §458.331(1)(t), Fla. Stat.,
for having implanted an IUD into Holli
Schmidt without taking adequate precautions
to ensure that she was not pregnant at the
time of insertion.
Dr. AZIMA first saw Holli Schmidt on
December 1, 1977, three years prior to the
visit which led to these charges. She sought
and received an abortion. (R. 436, 438, 479).
On her follow-up appointment, he inserted an
IUD (R. 438).
Ms. Schmidt again saw Dr. AZIMA on
June 11, 1979, because she was nine days late
with her period and exhibited all the signs
of pregnancy. (R. 481). A pregnancy test,
however, revealed that she was not pregnant
and, therefore, no treatment was administer-
ed.
Her third visit came on February 23,
1981, when she again came to Dr. AZIMA for an
abortion. She claimed her last menstrual
period was six weeks prior and she exhibited
breast tenderness and nausea. These symptoms
were were consistent with her history of show-
ing false signs of pregnancy. Her pregnancy
test was again negative. (R. 436). To con-
firm that she was not pregnant Dr. AZIMA con-
ducted a pelvic examination. He found her
uterus normal and determined that it was not
enlarged. (R. 439). The patient then re-
quested another IUD which was inserted at
that time. She returned for a March 5 follow-
up visit at which time she again exhibited
symptoms of pregnancy. [R. 429% RR. 883).
Both a pelvic exam and another pregnancy test
administered on March 5 again confirmed that
she was not pregnant. (R. 440, 483). Be-
cause the string of the IUD was not visible,
Ta i he
Dr. AZIMA sounded the uterus and thereby
confirmed that the IUD was still in place.
(R. 439).
To ease her concerns and keep abreast
of the situation, Dr. AZIMA scheduled another
appointment nine days later on Saturday,
March 14, 1981. She did not return for that
follow-up appointment. (R. 439, 483).
During the course of the 1981 treat-
ment in question, Dr. AZIMA conducted two
pregnancy tests, two physical examinations
and two pelvic examinations, all of which
showed no indication of pregnancy. (R. 439-
440). He twice determined that her uterus
was not enlarged, (R. 440), which is conclu-
sive evidence that she was not pregnant at
that time.
Dr. Yankopolus examined Ms. Schmidt
nearly two months after she last Saw Dr.
AZIMA. (R. 198, 199). His records disclose
that Holli Schmidt did not tell him the truth.
She told him that AZ1IMA had examined her as
recently as the week before and that AZIMA
put his hands in his pockets, shrugged his
shoulders and could not explain her symptoms.
(R. 199). Dr. Yankopolus did nothing to veri-
fy this erroneous story. (R. 200). Without
conducting a test to assure that the IUD was
Still in place, Dr. Yankopolus advised her of
the dangers of pregnancy with an IUD in place
and counselled regarding an abortion. (R.
224, 225).
Dr. Yankopolus referred Ms. Schmidt
to his partner, Dr. Waterman, in order to
terminate the pregnancy. Two days later,
without first confirming that the IUD was in
fact present, Dr. Waterman performed an abor-
tion on Ms. Schmidt on May 1, 1981. (R. 341).
Waterman testified that he did not
specifically remember removing Holli
Schmidt's IUD and holding it up and showing
it to her. "I do that routinely. Today I
can't sit here and tell you that I did it on
that particular day." Waterman altered Ms.
Schmidt's medical records one year after the
abortion to state that the IUD was removed on
May 1, 1981. On cross-examination he admit-
ted that his only basis for making the correc-
tion was an allegation by Schmidt that it had
been removed. (R. 341).
B. DPR Testimony Against Dr. AZIMA.
(1) Dr. Yankopolus' Testimony.
The DPR presented the testimony of
Dr. Yankopolus who stated that the procedure
that he follows is to "make the determination
that the patient is not pregnant for sure."
"([M]ost often the device is inserted on a
period...." (T-186).
Dr. Yankopolus testified that he ad-
ministers either a urine or a blood pregnancy
test only if there is a doubt that the pa-
tient is not pregnant. (T-178-179). There-
fore his standard respecting insertion of an
IUD device is less protective than the stan-
dards adhered to by Dr. AZIMA who twice per-
formed a pregnancy test on Holli Schmidt.
Dr. Yankopolus also testified that it
was inappropriate for the IUD to have been
inserted because of Ms. Schmidt's overt preg-
nancy signs and symptoms and because he did
not know which type of pregnancy test Dr.
AZIMA performed. It must be remembered, how-
ever, that Holli Schmidt had cnce before ex-
hibited false pregnancy signs and Dr. AZIMA
in this instance not only administered two
pregnancy tests but also performed two pelvic
examinations. (R. 439-440). Approximately
eight weeks after Dr. AZIMA'S examinations
revealed no pregnancy, on April 27, 1981, Dr.
Yankopolus determined that Ms. Schmidt was
pregnant.
(2) Dr. Waterman's Testimony
Dr. Waterman testified that Holli
Schmidt conceived ten to twelve weeks prior
to his May 1 examination of her. (R. 325).
On this basis he testified that it
was inappropriate for Dr. AZIMA to insert the
IUD because the patient could have been preg-
nant. (R. 326). But, On cross-examination
he admitted that the medical standard by
which he was judging Dr. AZIMA was not to be
found any place in particular. Rather, it
was based upon his own medical judgment and
experience and could not be found in any pub-
lished rules or standards (R. 329-330). Fur-
thermore, Dr. AZIMA'sS unopposed testimony
established that a woman may miss a period,
have tenderness or enlargement of the
breasts, gain weight, or even feel something
in her abdomen and yet not be pregnant. (R.
378-379).
C. Response to DPR Testimony.
(1) Dr. Yankopolus' Testimony
Dr. Yankopolus acknowledged that his
diagnosis of Ms. Schmidt and critique of Dr.
AZIMA were based in part upon the erroneous
belief that Holli Schmidt had seen Dr. AZIMA
the week before. (RR. #01,, #02). Dr.
Yankopolus testified that Dr. AZIMA should
have discovered the pregnancy the week prior
to April 27, 1981, if she was twelve weeks
pregnant when Yankopolus saw her on April 27,
1981. (R. 202). However, Dr. AZIMA did not
see her after March 5, 1981.
Dr. Yankopolus further admitted that
IUD's are only 96 percent effective as contra-
ceptives, and he did not know whether Holli
Schmidt fell in the remaining four percent
who become pregnant while using an IUD. (R.
ee ee een ey ey et
Ne RD Mickie nie A
215). He testified that he heard a fetal
heartbeat in Holli Schmidt which can be heard
nine and one-half to ten weeks after concep-
tion. (R. 215). He also admitted on cross-
examination that Holli Schmidt could have
expelled the IUD (R. 222) and that there are
tests that he could have performed but did
not, in order to verify that the IUD was in
place.
Regarding the urine pregnancy tests
which Dr. AZIMA gave Holli Schmidt, Dr.
Yankopolus first stated that some tests are
"potentially" useless, because they are only
85 percent accurate but then acknowledged
that other urine pregnancy tests are 96% ac-
curate. (R. 220-221). He had no idea what
kind of pregnancy test Dr. AZIMA twice gave
to Holli Schmidt in 1981. (R. 221).
Dr. Yankopolus testified that he does
not always do a pregnancy test before insert-
ing an IUD. (R. 223). Yet, even though Dr.
AZIMA performed two pregnancy tests (in addi-
tion to two physical examinations and two
pelvic examinations), Dr. Yankopolus testi-
fied that Dr. AZIMA was negligent. (R. 223-
224). This unsupported testimony of Dr.
Yankopolus discloses no substandard practice
by Dr. AZIMA. Yet the hearing officer found
that Petitioner violated §458.331(1)(t),
Fla. Stat.
(2) Dr. Cowdin's Testimony
Dr. Cowdin testified that he has ex-
perience in prescribing and inserting IUDs
and that he would "generally insert the IUD
while the patient is on her menstruai per-
iod," because "it's technically easier to do
so." (R. 247). Dr. Cowdin admitted that an
IUD does not always prevent conception and he
has actually delivered a baby whereupon an
IUD was expelled during birth, indicating
that the IUD was not effective. cme 29h).
He also acknowledged that an IUD can be invol-
untarily expelled. (R. 294).
When Dr. Cowdin was questioned about
the two sets of tests that Dr. AZIMA had per-
formed upon Schmidt -- pregnancy tests and
pelvic examinations -- he responded that
"there is nothing wrong with that." CR.
292).
When asked when Holli Schmidt became
pregnant, he answered that "conception likely
occurred in the neighborhood of February 15."
(R. 293). While this might not have shown up
on the pregnancy test which was given to
Holli Schmidt on February 23 and again ten
days later (R. 293), if Holli Schmidt had
kept her March 14 appointment with Dr. AZIMA,
a third pregnancy test would have revealed
the pregnancy. (R. 293).
When asked what Dr. AZIMA did wrong,
Dr. Cowdin responded, "I can't answer that.
I don't know what he did to her." (R. 294).
At one point Dr. Cowdin, was asked:
"Do you think that it is within the standard
of care for a doctor to always do a pregnancy
test before inserting an IUD?" He responded
that it was a "question ... difficult to
answer," and that it would depend on circum-
stances, and that those circumstances boiled
down to a medical judgment by the doctor.
(R. 295).
Notwithstanding a diagnosis by the
Yankopolus group that Holli Schmidt was
twelve to fourteen weeks pregnant, Dr. Cowdin
acknowledged that on May 1, 1981, Dr. Water-
man used a number nine cannula on Holli
Schmidt -- a nine millimeter suction catheter
(R. 296). Cowdin also acknowledged the auth-
Oritative character of the publication "Con-
A te ONES: ht on Sin a ih at er
temporary OB/GYN" (R. 297) and a chart corre-
lating the size of the cannula with the size
of the uterus and age of pregnancy.
Cowdin acknowledged that if the cor-
relation procedure contained in the "Contem-
porary OB/GYN" chart was appropriate, then
Holli Schmidt's pregnancy would have been
nine weeks, ¢ (R. 299-301), and therefore
Ms. Schmidt was not pregnant when Dr. AZIMA
inserted the IUD.
Dr. Cowdin, based upon the litera-
ture, "Contemporary OB/GYN" of October 1979,
and the size of the cannula utilized by
Waterman in her abortion, opined that Holli
Schmidt conceived in the neighborhood of
March 13, (R. 299- 300), nearly 3 weeks after
the IUD was inserted by Dr. AZIMA on February
2after performing the abortion, Dr. Waterman
did not request a pathological examination to
determine the age of the fetus. (T-281).
A-95
23. Dr. AZIMA last saw Ms. Schmidt on March
>» (RR. 300).
The admission by Dr. Cowdin of the
likelihood that Ms. Schmidt's pregnancy occur-
red after Dr. AZIMA last saw her, examined
her and confirmed that her IUD was still in
place on March 5, 1981, is cogent and convinc-
ing evidence that Dr. AZIMA did not fall be-
low established standards by implanting the
IUD on February 23, 1981. Moreover, no doc-
tor testified that the IUD must be in place
Only during menstruation.
(3) Dr. Waterman's Testimony
Dr. Waterman was then asked what he
would do if a woman came into his office,
told him that she had an IUD but the string
had disappeared, and that she might wish to
terminate the pregnancy if the IUD was there.
Waterman answered that he would order an ul-
trasound. However, he did not order an ultra-
asian
a aL eS
sound prior to performing an abortion on
Holli Schmidt. (R. 331).
Dr. Waterman admitted that he does
not always do a pregnancy test before insert-
ing an IUD, and in light of the fact that Dr.
AZIMA did two ;,regnancy tests and scheduled a
third one which Holli Schmidt never came back
for, Dr. Waterman testified "I don't know"
what Dr. AZIMA did wrong. (R. 337).
(4) Dr. AZIMA's Testimony
After DPR expert witnesses testified
that the probable age of Holli Schmidt's preg-
nancy on April 27, 1981 was twelve to four-
teen weeks, Dr. AZIMA testified at length,
employing authoritative literature and draw-
ing to scale on the blackboard for the bene-
fit of the Hearing Officer, the impropriety
of such a diagnosis. Uterine size at twelve
weeks of pregnancy is comparable to a large
apple, whereas uterine size at fourteen weeks
of pregnancy is comparable to a large grape-
fruit; so that OB/GYN's do not speak of
"twelve to fourteen weeks," but rather speak
in one-week increments. The difference be-
tween a twelve-week pregnancy and a fourteen-
week pregnancy iS gross and observable, and
cannot be a proper span of measurement. (R.
398-406). It is medically unacceptable to
diagnose a pregnancy as twelve to fourteen
weeks, this being insufficiently precise to
satisfy standards of medical practice. (R.
403).
Dr. AZIMA's unrebutted testimony as
to these matters was based in part on his
teaching as a clinical instructor at Univers-
ity Hospital, Maryland. (R. 406-407).
(5) Dr. Sibley's Testimony
Dr. Craig Sibley acknowledged on
cross-examination that he diagnoses pregnan-
cies in terms of being ten weeks, or nine
ary
A ot ae ae a ml
weeks, or eight weeks. (R. 154-155). Dr.
Sibley also testified that he measures the
age of a pregnancy from the first day of the
last menstrual period. This differs by ap-
proximately two weeks from actual time of
conception. (R. 155). This was contrary to
the testimony of the Yankopolus group.
In support of Dr. AZIMA's procedures,
Dr. Sibley, like the other expert witnesses,
acknowledged that the urine pregnancy test is
a reasonable way to determine whether the
patient is pregnant (R. 170-171). He also
acknowledged that missing a menstrual period
is not proof of pregnancy; that breast tender-
ness is not proof of pregnancy, and that a
physician who performs pregnancy tests, pel-
vic examinations and takes a history, has
performed reasonably. (R. 170-171). Doing
it twice is even more reasonable. CR. 2Fiks
(6) Conclusions
Dr. AZIMA'S procedure for inserting
the IUD in Holli Schmidt deviated in no way
from the standards of the American College of
Obstetricians and Gynecologists, nor from any
other standards published or otherwise. (R.
440). There is no standard that requires
insertion of an IUD only during the menstrual
period. (R. 442).
Within reasonable medical certainty,
Holli Schmidt was not pregnant when she visit-
ed Dr. AZIMA on February 23, 1981. (R. 440).
Within reasonable medical certainty, Holli
Schmidt was not pregnant when she visited Dr.
AZIMA on March 5, 1981. (R. 440). Even if,
arguendo, she was pregnant at that time, cer-
tainly Dr. AZIMA's two pregnancy tests and
two pelvic examinations are sufficient to
absolve him from any claim of medical negli-
gence.
A-100
4. Case History and Testimony
on Christine Sellers Kuchar
(Count I of the March 15, 1983, Complaint)
A. Case History of Ms. Kuchar
Dr. AZIMA was disciplined specifical-
ly for not having sent the aborted tissue
specimen to a pathology laboratory for a de-
tailed examination, and for not having deter-
mined her Rh factor.
Christine Kuchar, formerly Christine
Sellers, came to Dr. AZIMA on February 19,
1981, for an abortion. (R. 52, 430, 467-469).
She had been told two weeks earlier by Dr.
Carver, her attending physician at the Ft.
Myers Community Hospital Emergency Room, that
she was pregnant. (R. St, 33, 830, S34, SOG).
She did not, however, inform Dr. AZIMA that
she had previously seen Dr. Carver and had
been diagnosed pregnant. (R. 441). Not only
did she fail to tell Dr. AZIMA that she had
A-101
previously seen Dr. Carver, but she also fail-
ed to inform him that she had a suspected
ectopic pregnancy? five years earlier,
which she also discussed with Dr. Carver on
February 18. (R. 23, 66, 68, 74, 76, 84, 94,
606). Both of these pieces of information
were very important and would have greatly
facilitated Dr. AZIMA's ability to treat her
under the circumstances. If. Dr. AZIMA had
been told by Ms. Sellers that she had a prior
Suspected ectopic pregnancy, then having iden-
tified recognizable fetal parts in the tissue
he removed from her uterus, he would have
3An ectopic pregnancy occurs when a fertilized
egg implants and grows outside of the uterus;
in most cases it implants and matures in the
fallopian tube and almost always leads to
rupture and removal of the fallopian tube.
(R. 146, 206, 343).
A-102
been put on notice of the possibility of a
combined pregnancy. 4
She did tell Petitioner that her last
menstrual period was January 4, 1981 which
made her seven weeks pregnant. (R. 431). Her
pelvic examination disclosed that her uterus
waS Six or seven weeks in size. Dr. AZIMA
provided a suction curettage and paracervical
block with one per cent Xylocaine. After
performing the abortion, Dr. AZIMA made a
detailed visual inspection of the products of
conception and determined that he had, in
fact, successfully terminated a pregnancy.
There were clearly recognizable fetal parts
in the tissue. (R. 35, 468, 469). She was
given an antibiotic and an appointment was
_—
4n combined or dual pregnancy occurs when two
eggs are fertilized and one implants in the
uterus while the other, at the same time,
implants in the fallopian tube. Thus, a
woman has two viable fetuses inside of her at
the same time. (R. 146, 147, 209, 249, 320,
SSo) «
A-103
made for her to return in one week. (R. 431-
432). Ms. Kuchar did not return.
Ms. Kuchar never conferred or talked
with Dr. AZIMA after the procedure on Febru-
ary 19. (R. 59). One week after the Febru-
ary 19 meeting with Dr. AZIMA, she went to
Dr. Cowdin's office. (R. 60). She testified
that Dr. Cowdin was very upset that she ad
not received a shot of RhoGam after the abor-
tion was performed. She testified also that
she knew that if one had an Rh factor one is
supposed to have a shot of RhoGam -- having
learned that with the birth of her first
child. (R. 61). Although she purported to
have known this, she refused RhoGam during
her February 19 visit with Dr. AZIMA,
One week or less after seeing Dr.
Cowdin, she awakened with pain in her lower
abdomen, went to Dr. Cowdin's office, and was
informed that she had an ectopic or tubal
A-104
pregnancy. (R. 62), She was taken to Lee
Memorial Hospital and had her right fallopian
tube, which had ruptured, removed. (R. 63).
She has recovered and has had no problems
Since. (id.)
The record reveals without contradic~—
tion that Ms. Kuchar had an ectopic pregnancy
which required an operation approximately two
weeks after Petitioner performed the termina-
“tion procedure. (R. 62).
B. Testimony in Response ta DPR Charges.
Dr. AZIMA testified that he definite-
ly asked Ms. Sellers what her Rh factor was,
and she told him that it was Rh negative.
(R. 432). He then testified that he asked
her if she wanted a shot of RhoGam, which is
administered to Rh negative patients who con-
template future pregnancies, and she replied
no since she intended to have her tubes tied.
(R. 433).
A-105
While Ms. Sellers testified that no
one at Dr. AZIMA's office asked her what her
blood type was (R. 61), she never, in any
way, contradicted Dr. AZIMA's testimony that
she refused the shot of RhoGam. What is so
telling about this is that the only reason
for administering RhoGam is to prevent the
sensitization of an Rh negative patient. It
is only called for if a patient is Rh nega-
tive. (R. 133, 244, 245). So, why did Dr.
AZIMA ask Ms. Sellers if she desired a shot
of RhoGam? The answer is self-evident -- he
knew she was Rh negative. (R. 210, 333, 432).
This logical conclusion is uncontradicted by
the testimony and the record.
Because Ms. Kuchar is Rh negative,
she was counselled that she might want RhoGam.
RhoGam is only necessary if "the patient is
considering further pregnancies." (R. 415).
RhoGam is not necessary if the patient does
A-106
not desire future pregnancies or wishes ster-
ilization. (R. 416). Since RhoGam is not
100 percent effective and has some harmful
side effects (R. 416-417), Dr. AZIMA counsels
Rh negative patients, and allows them to make
their own informed decision as to whether to
take the RhoGam, which they may refuse. im.
417).
The DPR's medical witnesses testified
that blood type must be determined, but ack-
nowledged that it need not always be determin-
ed by the drawing of blood. Regarding Ms.
Kuchar, it was acknowledged that Dr. Cowdin
accepted history (R. 267) and it was acknowl-
edged by the other DPR medical witnesses that
this may be reliable. Dr. AZIMA testified =
that he determined blood type in every case,
that he determined from her history that she
was Rh negative and she refused RhoGam be-
cause she wanted to be sterilized. oa. MSS)
A-107
This procedure has not been demonstrated to
be in violation of any medical standard,
rule, statute, or other medical protocol.
It is established by the medical evi-
dence herein that an ectopic pregnancy may be
difficult to detect, and that the only sure
method of detection is exploratory surgery
which is not ethically recommended as a mat-
ter of course.
In order for Ms. Kuchar to have been
found suffering an ectopic pregnancy two
weeks after Dr. AZIMA performed a termination
procedure, one of two possible events must
have occurred. Either Petitioner did not
successfully terminate the pregnancy on Febru-
ary 19, 1981 because it was ectopic, or Ms.
Kuchar had a combined pregnancy, i.e. two
eggs were fertilized, where one egg implanted
in a fallopian tube and the other developed
in her uterus. (Rm. 346).
A-108
If there was only one fertilized egg
then it must have resided in the fallopian
tube and Petitioner's termination procedures
would not have been successful. The exis-
tence of only one egg would have necessarily
been evident by an inability to identify
fetal remains in the uterine product. How-
ever, Dr. AZIMA did clearly identify fetal
parts in the products of conception (R. 435),
thus indicating a combined ectopic pregnancy,
such having a rare occurrence of approximate-
iy one in 30,000. (R.. 209, 265, 320). Fur-
thermore, had Petitioner been told by Ms.
Kuchar that she had a prior suspected ectopic
pregnancy, he would have been on notice of
the possibility of a combined pregnancy when
he performed her abortion. (R. 261, 262).
Had Kuchar told Drs. Cowdin and AZIMA that
she had a possible tubal pregnancy five years
before (R. 261-62), it would have made a dif-
A-109
ference because of the significantly higher
recurrence rate for women who have had ectop-
ic pregnancies. (R 261-62). Having observed
fetal remains there was nothing to be gained
by sending the products of conception for
further pathological examination. (R. 168,
265).
Dr. AZIMA followed his standard proce-
dures with Ms. Kuchar. (T-432). He obtained
her patient history. She told him she was Rh
negative. He offered her RhoGam, but was
told by her that she wanted her tubes to be
tied (permanent sterilization), (R. 98,99),
and she therefore refused the RhoGam. (R.
432-433). Had the patient returned in one
week as scheduled, a pregnancy test would
have been administered and would without
doubt have revealed her ectopic pregnancy.
(R. 433). Dr. AZIMA committed no acts of
either omission or commission which in any
A-110
way deviated from the kiconsare procedures
about which he testified (R. 433-434). Nor
did he do anything that would diverge from
the published standards of the American Col-
lege of Obstetricians and Gynecologists.
(R. 434).
Dr. AZIMA completed the abortion pro-
cedure on Ms. Kuchar on February 19, 1981 and
inspected the products of conception in de-
tail. (R. 435). In that inspection no abnor-
mality or irregularity was found. There was
no published standard by either the American
College of OB/GYN's or the Florida Medical
Association nor was ther2 any rule or reason
which required him to send those particular
products for further pathological examination.
(R. 435-436). He was, however, suspended
specifically for failing to send those prod-
ucts for pathological examination based sole-
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ly upon the testimony of interested physi-
cians.
C. Regarding Ms. Kuchar.
On seme examination, Ms. Kuchar
denied the accuracy of the February 18, 1981,
date on her hospital record (R. 606, 84) and,
therefore, her credibility was significantly
impeached.
On cross-examination the witness ac-
knowledged her name and the date on the hospi-
tal records (R. 66, 67), as well as the name
of a witness, but declared that the records
are wrong. (Rm. 64, 65). Having testified
that the witness, Dr. Carver and the hospital
made a mistake but she did not (R. 68), she
then contradicted Dr. Cowdin's records by
denying that she had told him that she had an
ectopic pregnancy five years before. (R.
68).
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Ms. Kuchar admitted that when Dr.
Cowdin saw her, one week after Dr. AZIMA per-
formed the abortion, Dr. Cowdin did not dis-
cover the ectopic pregnancy. (R. 74). Nor
did Dr. Carver discover it on February 18.
(R. 74).
Ms. Kuchar stated she was not upset
that Dr. Cowdin had missed her ectopic preg-
nancy when she first went to him, although he
did not give her a pregnancy test to confirm
that Dr. AZIMA's abortion had been effective.
(R. 78-79). Ms. Kuchar denied that Dr.
Cowdin said that he was working with DPR to
get Dr. AZIMA and that the DPR agent said
that he was working with Dr. Cowdin to get
Dr. AZIMA (R. 78-79), but was impeached by
her deposition of November 4, 1983 when she
had so testified. (R. 80-81).
Ms. Kuchar's hospital records of Feb-
ruary 18, 1981 indicate that she told Dr.
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Carver about an ectopic pregnancy five years
prior; but in her deposition of November 4,
1983 she denied any pregnancies between 1973
and February 1981 and denied any ectopic preg-
nancies. (R. 82). She also denied any mis-
carriages and any "female trouble" between
1973 and 1981. When confronted with her
November 4, 1983, deposition, she acknowledg-
ed having said that but tried to explain that
she thought she had not had a tubal pregnancy
after all. (R. 83). She was further impeach-
ed by her November 4, 1983 deposition where
she denied having been to any emergency rooms.
(R. 82-84).
Ms. Kuchar admitted that she had not
told Dr. AZIMA that she might have had a
tubal pregnancy five years prior because she
did not think it was an important factor.
(R. 84).
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Ms. Kuchar's testimony materially
contradicted her prior depositional testi-
mony, her medical records in the Yankopolus —
group's office and her hospital records.
(R. 85-86). She was also impeached by her
February 24, 1982, deposition wherein she was
asked whether she scheduled an appointment
with Dr. AZIMA for a week after the abortion
and answered, "No, I didn't." (R. 88). Yet,
at the hearing she testified that before she
left Dr. AZIMA's clinic she Gid schedule an-
other appointment for the next week. (R. 87).
When asked about these contradictory posi-
tions and why she had given the answers she
had, she replied: "I don't know." (R. 88).
Although three doctors, Carver, AZIMA
and Cowdin, all failed to diagnose the ectop-
ic pregnancy, the witness testified that Dr.
Azima was the only one who was negligent in
not discovering it. (R. 94). Ms. Kuchar
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continues to this day to see the Yankopolous
group for treatment. (Id.).
5. Case History and Testimony
Relating to Darlene Baker
(Count I of the August 2, 1983, Complaint)
Dr. AZIMA was disciplined specifical-
ly for not having sent Ms. Baker's aborted
tissue specimen to a pathology laboratory for
a microscopic examination.
Dr. AZIMA first saw Darlene Baker on
January 12, 1981. (R. 422). She was then a
31-year-old married female with two full-term
deliveries, no premature births, one abortion
and one spontaneous or induced termination.
Her last menstrual period was unknown and she
was on the birth control pill. Her physical
examination was noted as normal. Her pelvic
examination disclosed a uterus of eight to
nine weeks size. (R. 423). He performed a
termination of pregnancy, and the details of
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this procedure regarding Darlene Baker are in
the record. (R. 425). Darlene Baker, like
Ms. Kuchar and Ms. Schmidt, did not return
for her one-week follow-up appointment,
(Id. )
On December 23, 1982, approximately
two years later, she returned and was given a
pregnancy test that showed positive. She
asked for another abortion. (Id.) Dr. AZIMA
determined that she was ten weeks pregnant.
(R. 427).
During the 1982 visit Petitioner scru-
pulously followed his standard procedures
with Ms. Baker. The uterine tissue which was
visually inspected was consistent with an
eleven week old fetus. (R. 427). There was
no abnormality in that tissue (R. 427-428).
Having noted clearly recognizable fetal parts
and noting no abnormality, Dr. AZIMA then
disposed of the tisse in a manner which was
A-117
in full compliance with all of the applicable
standards and regulations.
During her 1982 visit, Ms. Baker also
requested an IUD and scheduled an appointment
to have the device inserted the next week.
She, however, did not return for her follow-
up visit. (R. 428).
Ms. Baker complained about her treat-
ment because two months after her abortion
she awakened in a pool of blood and could
think of no other reason for it than the abor-
tion. (R. 43-44). There is no evidence that
the abortion procedures utilized by Dr. AZiMA
were in any way related to the bleeding Ms.
Baxer experienced two months later.
The testimony of Dr. AZIMA is con-
firmed by the medical record, being DPR's
Exhibit "A", (R. 462-466), and is uncontra-
dicted.
6. Testimony Regarding The Standards
For Obstetric & Gynecological
Services.
Regarding the charge that Dr. AZIMA
failed to meet accepted standards or engaged
in gross or repeated malpractice by failing
to send all fetal remains out for a detailed
pathological examination, there are no OB/GYN
protocols or standards for the Lee County
Medical Society, nor were there any in i981
Or 1962. (Rs 3353- 356).
Dr. AZIMA scrupulously followed the
published American College of OB/GYN stan-
dards as a matter of standard procedure and
as to the patients referenced herein, did
make a close and detailed examination of the
tissue and clearly noted fetal parts.
He is sufficiently trained and compe-
tent to make such an examination. (R. 412).
The standards explain that an OB/GYN special-
ist must examine the specimen that he has
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removed in order to be fully familiar with
the pathology of what he has obtained. (R.
412°
If Dr. AZIMA is certain that fetal
parts have been removed, he disposes of the
uterine product. This fully comports with
all Florida state regulations and statutes
regarding the disposal of such tissue. If
there are any doubts, he sends the specimen
to the pathologist for examination. (R. 412).
There is no requirement by any standard to
send every specimen to pathology. (R. 413).
The witnesses were in significant conflict
with one another on this point.
As to the standards of the profes-
sion, i.e., either wnat OB/GYN's in fact do
Or ought to be doing, Dr. Sibley only knew
what four others do. (R. 161). The four
others are the Yankopolus group practice.
(R. 162). That is “the same standard as
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mine." (R. 162). But Dr. Waterman acknowl-
edged that there are places that do not send
Out tissues for pathological examination and
that there is no law that requires this.
(R. 318).
Dr. Sibley testified that a number of
licensed clinics in the State of Florida do
not send out fetal parts to pathology. (R.
157-158). He acknowledged that sending the
products of conception to a laboratory is
done "primarily to protect us and the clinic.
A lot of clinics do not do it; our clinics
happen to do it." (BR. 1297-38). In Dr.
Sibley's opinion, not sending the products to
pathology does not constitute malpractice.
(R. 158). Neither does any rule of law or
rule of the medical examiners of the State of
Florida require that those products be sent
to pathology (R-159).
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A. .Yankopolus Testimony.
Dr. Yankopolus admitted that he was
not competent or capable of examining the
products of conception visually. (KR, 231} %
When asked about the standards for obstetric
and gynecological services published by the
American College of Obstetricians and Gyne-
cologists, he wasn't sure whether he had seen
them, but acknowledged that it is an authori-
tative work and is the standard of his profes-
sion. (R. 231).
The 1982 publication of the Standards
of the American College of Obstetricians and
Gynecologists reports at page 52 that "ina
Situation of selective termination of preg-
nancy, a ohysician should record a descrip-
tion of the gross products definitely being
identified as products of elective interrup-
tions, and if not easily identifiable, they
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must be submitted to a pathologist for gross
and microscopic examination." (R. 231-232).
Nevertheless, evidencing the tenor of
his testimony, Dr. Yankopolus -- who declared
himself to be incompetent to make such an
examination -- declared that he is “above the
standards" of the American College. (R.
232)
B. _Cowdin Testimony
Dr. Cowdin also testified that it
falls below the standards of the profession
if the remains of the abortion are not sent
to pathology. ({(R. 271). Yet he was impeach-
ed by his deposition of March 23, 1982 (R.
268). When he was asked specifically whether
he knew of any "professional obligation, not
legal obligation" to send the products to
pathology, and answered "No." (R. 271). Dr.
Cowdin disagreed with the earlier testimony
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of Dr. Sibley that a lot of clinics do rot
send the remains to pathology. (R. 273).
Dr. Cowdin's credibility was also
called into question when he testified that
it falls below the accepted standard of care
not to record what the products of conception
were (R. 274), but that he does not always
record them. (Id.) He records a description
of the products if he feels there is some-
thing unusual, but does not if he feels there
is nothing unusual. (R. 275).
6. Conclusion
It is not contested in the record
that Dr. AZIMA clearly satisfied the estab-
lished standards of the American College of
Obstetricians and Gynecologists.
The DPR has failed to prove by compe-
tent substantial evidence that Dr. AZIMA en-
gaged in gross or repeated malipractice or
fell below minimally acceptable medical stan-
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\
\
\
dards through his procedures regarding the
products of conception. Nor did the DPR pro-
Vide competent substantial evidence toad
prove that Dr. AZIMA determined Ms. Kuchar'
Rh factor and offered her RhoGam
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.