Breaking News: Late-term abortionist James Pendergraft loses appeal; suspension stands
Today Orlando, FL, late-term abortionist James Pendergraft lost his appeal in the 5th District Court of Appeal, and the suspension of his license by the FL Board of Medicine stands.
According to a court document filed today, “Dr. Pendergraft violated sections 456.072(1)(k) and 458.331(1)(g) when he performed a third trimester abortion in his clinic, which is not a hospital.”…
Next, Pendergraft “violated section 390.0111(1)(a)… which prohibits third trimester abortions unless two physicians certify in writing to the fact that, to a reasonable degree of medical probability, the termination of the pregnancy is necessary to save the life or preserve the health of the pregnant woman.”
Third, Pendergraft violated “section 390.0111(1)(b)… because he did not certify in writing “to the medical necessity for legitimate emergency medical procedures for termination of pregnancy in the third trimester, and another physician is not available for
consultation.”
Finally, “the [Administrative Law Judge] found that there was clear and convincing evidence that Dr. Pendergraft committed medical malpractice.”
There are no details on the news yet. Unknown is whether any or all of Pendergraft’s 5 clinics will have to close during his suspension. Also unknown is whether criminal charges will be filed.
Baby Rowan, the subject of the movie 22 Weeks, was aborted alive in 2005 at 1 of Pendergraft’s mills. Workers refused his mother’s pleas for help.
Pendergraft’s license was suspended in 2006 for the same reason.
In 2001, Pendergraft was convicted of extortion and spent 46 months in prison.
[HT: reader RJS]
I pray that there will be criminal charges to follow.
Marcus Welby, he is ‘NOT’.
Our ‘dead babies r us’ friends will say this is an aberration.
pp and abortionists strive to employ or refer to only the most ethical mass murderers and serial killers.
Remember these are the same folks who will not even criticize Communist China’s coercive abortion practices.
yor bro ken
I found the opinion on the Fifth dictrist court of appeals websight. http://www.5dca.org
Then I forwarded the news to Jill. Angele, While I was reading this opinion, I was thinking of you. Thank you for holding this man accountable.
RJ,
Thank you so much for forwarding it to Jill. She called me after receiving the information from you. Hearing it felt odd.. I raced through a variety of emotions really. I think the strongest emotion I feel now is “relieved.” Whew!
Thank you from the bottom of my heart for the good news. I can’t sleep now..ha ha.. but I am comforted knowing that at least for a while, he cannot hurt other babies and their mothers.
Christ’s peace,
a
This is a wonderful birthday gift! May the Lord prosecute justice for the thousands of thousands of precious children Pendergraft has murdered. In memory of dear Baby Rowan, may all of Pendergraft’s murder mills be closed & Pendergraft permanently lose his license to practice medicine anywhere.
Let’s pray for Pendergraft’s conversion as well. It’s always been our desire that God would grant Pendergraft & his staff repentance unto life. We all know that except for the saving grace of Jesus Christ none of us deserves mercy & forgiveness.
Hey,
Does anyone know what will happen next? I presume there is some sort of review, another court date perhaps… then a determination of whether or not his license should be revoked?
How many times can one have their license revoked and have it reinstated in Florida? hmmm.
I am just praying that the doors to all of his clinics remained closed.
I am just not ready to pray for his conversion yet.. I know that I should.. God can detect my lack of sincerity. the best i can pray for is a conversion after years of imprisonment.
Jill Patte, whomever can answer this… what about Perper? Does he still work at Pendergraft’s mills? I hope he doesn’t take over or something. Ugh.
At any rate, this is a good thing and I am grateful that God has allowed this.
Night night,
a
A,
we’re not sure yet if abortions will continue. I called OWC tonight and was told the clinic will remain open this weekend, but I’m hopeful that could change!
A couple years ago, pendergraft’s suspension barred any abortion procedures, SO let’s pray this is the case now.
I’m with you…how many times foes your license need suspension before being revoked?! It’s scary and insulting.
I’ll write again if I find out more info on closures.
Blessings,
Spring
To my knowledge Perper is still there. Last time they shut all his mills down pending an investigation. That’s what we’re all hoping for, but in the very least P won’t be able to kill babies for a while. They’ve been murdering 7 days a week with two abortion times on Wed & Fri at Orlando Women’s Center.
I’m praying for P to go to jail too. There are prison chaplains there & he’d have plenty of time to read the Bible.
He recently stopped to ‘talk’ to the sidewalk missionaries, saying “I believe in God. I believe in the Holy Spirit”. Young Daniel (14 years old) told P “Yes, even the demons believe”, & right at that moment thunder clapped!
Pendergraft has had years to repent with a continue gospel plea from 1996 when he opened up on Lucerne. May this shame & humble him & bring him to his knees.
Thanks Angele.
This past Sunday morning, as I prayed outside his late term Lucerne clinic and spoke to those entering about a way out that didn’t include his services, I asked the Father to allow James Pendergraft to feel physically the weight of the chains of horror and sin that bind him spiritually and morally and ethically. May God’s justice, grace and holiness prevail.
It takes a “certain kind of guy” to kill babies for a living, and sometimes they get caught. The abortion industry is a magnet for the dishonest, the incompetent, the sleezy. When they fail at all other “medical” careers, they go into killing babies.
Wow! Great news to wake up to this day! Praising God and breathlessly waiting to hear what this all “means”… will his license be permanently revoked? will one of the other “dr’s” jump in and run things? might all the clinics close for good??? We can pray, just like in the Tiller case, that he decides to just close the whole thing down for good. That is 5 clinics in Florida! How many babies do they kill a year?? Thank you, Lord. Wishing I was home to see all my fellow missionaries at OWC this weekend… hugs!!
Spring and Patte,
Thank you for the information. I am praying for the clinics to remain closed until the matter is resolved.
Patte, I imagine that was one of the best birthday presents someone could have possibly surprised you with! (giggles)
RJ, Thanks again for the news..it was a stunning moment when I heard it over the phone..(thumbs up!)
Thinking of you today, angele and am grateful to God that Pendergraft’s license is suspended!
Thinking of you too Carla! I always do. Thank you. I am grateful too. A subconscious weight has been lifted from my shoulders temporarily…God is good, some babies won’t be sentenced to death today. It is a good day indeed. :-D
Glory be to God!
Praise God for justice! Reading this has made my weekend. I live near Brevard county where he operated for so long but was finally run out with help from a faithful servant named Mark. Mark would offer girls going into his office a hundred dollar bill just to view a free ultrasound of their baby. No matter where Pendergraft moved his mill to, Mark, his vintage RV, and all the sidewalk warriors would follow him. It was so sad to know how much evil he was doing in Orlando after he left Brevard.
Thank you Angele, for your courage to give witness to the true barbaric evil of the mills.
Also, can I ask for prayers for a wonderful girl I work with who has been trying to get pregnant for over 5 years? Pendergraft aborted her only baby many years ago. My heart breaks for her and her husband. Her mother forced her into the abortion when she was in her teens.
Can you imagine the ripple effect when we think that these evil abortion doctors, not only abort the baby at the time, but also the potential future babies their mother cannot bear after being maimed in their “unchoice” abortion. Maybe these women should come foward and press charges for their compromised fertility after a coerced abortion.
Now… when are we going to see this on the news? I have not seen anything about it. I hope it gets some attention.
Angele, I’m going to also post this story on my facebook page! RJ Sandefur
Muriel, I am praying for your friend and will continue to do so. Thank you for the compliment but it is not courage that led me to speak the truth about that day. It was fear for others and their safety. There is NOTHING courageous about me, I am rather wimpy really..but thank you for the kind words.
RJ, that’s awesome!
Blessings to all and Happy Independence Day weekend too! (I’m feeling pretttty freeeeeee at this monment!! whoo hoo!)
I understand Angele, but many may fear for others in private, but it really does take courage to go public. Not every one has it in them or has the humility to share the most intimate painful part of themselves for fear of judgement or persecution. You answered the call from the Spirit that prompted you to speak the truth.
Thank you for praying for her.
http://ww2.doh.state.fl.us/finalordernet/folist.aspx
Above is a link from the Florida DOH regarding previous actions against Pendergraft. He also gave narcotics and steroids to a drug addicted employee. All without a proper DEA license with which to do so.
Hopefully this man will have his illegal operations shut down permanently.
angele and jill: pro-life heroines!
Thank you Muriel. It was God’s doing, not mine. :)
Soon a little girl will be born. Her mommy watched 22weeks and cancelled her scheduled abortion. That makes any judgement and persecution worthwhile. : )
The day I got the telephone call where a CPC counselor relayed the story..well, it made EVERYTHING seem to come as close to full circle as it ever would. Prior to that day, I was still questioning the purpose of ever mentioning it to anyone.
That day, that moment, I knew that God had his hand on us and really, no persecution could hurt me from that point on. It was an amazing point in my personal walk of faith.
Pretty cool, huh?
Yes, God is GOOOOOOOD!!
Troy Newman, pro life HERO!!!!!!! God bless you, T-man!
http://ww2.doh.state.fl.us/finalordernet/folist.aspx
Disciplinary actions already on file.
The most recent one has not been listed yet. Then there was also that little extortion misunderstanding in 2001.
How many disciplinary actions are allowed before a physicians license is revoked? Just curious.
Troy My man! Been missing you on Faith 2 action! Where have you been? Its a joy talking to you every time you’re on. RJ
Though I’m not a big advocate for illegalization, my heart lept for joy at the closing of this and Tiller’s clinic (although not by the means of Tiller’s murder). Let us show them as the law breakers they are and the lack of regulation and safety in legalized abortion.
We cannot sit back and let this continue. We have to continue to put pressure on the Government for nominating Serbelius. Remember how tight she was with Tiller? I don’t underestimate her power and the liklihood that she will allow late term abortions throughout the US. Watchout for Sotomeyer and Obama. What a team! Beware!!
I didnt mean to post the same link twice. The first one didn’t show up for a while, so I tried again.. whoops.
: )
Angele, I was just thinking If their was a way You and Baby Shanice’s Mother Sycloria could both speak with each other over the phone, it might comfort her to know that their other wimen out their who have gone through the same thing she has gone through. I pray for her everyday as well. RJ
Hi RJ,
I gave Sycloria’s lead attorney my contact information back in January. I have spoken with him a couple of times since. I feel sure that he would pass it along to her if he thought she might need an empathetic ear. Infanticide occurs at least 400 times per year in this country according to CDC statistics.. so far only Sycloria and I have “come out” so to speak. (So it’s not like we have a post infanticide healing group or anything.)
I pray for her too, RJ. Back then, I felt like no one could possibly understand what I went through, hopefully she knows that I “get it”.. I pray for her to be okay each day, to learn to love herself again through Christ and for the Lord to lead her to call me, if that is what He has planned.
He has definite plans for her…. and her experience will be used for His glory. Shanice’s life was not in vain.
a
Angele, Where does your name come from? Its a prity name. I’ve also tryed looking for the origen of the name Rowan, but so far been unsuggcessful. My Mom Tells me, that our last name comes from Germaney. You said you contacted Sycloria’s lead atturnie. When you told him your own story, What was his reaction? RJ
Hey there RJ,
Thank you. Angele is of French origin and means Angel. (obviously my parents had no clue, huh?) : )
It is a family name. We are of French, Irish and English descent. Rowan is a Celtic surname from my family tree.
There are many sites, like ancestry.com where you can locate both the origin and meaning of your full name.You might find it to be fun.
To answer your last question, he already knew about Rowan’s story before we ever spoke.
I have a question for you too, please?
How did you know about the DCA’s decision on Pendergraft?
I hope you have a fun filled and truly patriotic Independence Day. :)
At some point, killing has got to be made illegal. Just saying.
Emergency Prayer!
A couple is at OWC right now to murder their 21 week baby. They said that “the owner of the clinic” is going to do it. Spring told the father of the baby that Pendergraft’s medical license is suspended. He didn’t appear to care.
Please pray for Spring & all the others who have been pleading with them. They have the contact number for the father. Please pray for wisdom & discernment as to how to proceedJiHad anyone here read the court documents thoroughly? To my knowledge none of the local news outlets have reported Pendergraft’s medical license suspension even though I made many calls to report his suspension
Please pray for this poor little baby & for all of the babies who are being slaughtered today. About 30 people came to kill this morning.
A gospel worth believing
is a gospel worth sharing.
I will be praying for them Patte.
I find it really strange that I can’t find anything on our local news or in the papers about this.How can they not report it?
good news, someone will live today and not be murdered. We cant stop the fight until they are all closed down forever. May God break the hearts of this nation and this world enough for us to get out of His way and do what needs to be done to save our children. I hope we get to hug and kiss all the fallen in Heaven-may they know comfort in the arms of Christ, because they sure never got any here.
This is total insanity!!!
I have checked at least twice daily and there is not one mention of his suspension in any of your local media outlets… is it not even required to publish in the public notice section of your local papers??
Surely this man is quite close to losing his license for good in Florida..what else can be done?
I wish I was there. I would monitor the comings and goings for a week straight, gathering possible evidence and calling the police to see if he could be caught red handed practicing his “medicine.”
So, if the lady who is 21 weeks, has her lam inserts today… then she will be back tomorrow. Any idea who will be on call? Perhaps you can garner this info from her male companion?
I know that you Orlando based pro life WARRIORS can bust this guy.. and put an end to his “career” in your home town.
I have FAITH you. :)
God speed
a
Patte,
My prayers go out to the couple AT OWC.
Memorare
Remember, O most gracious Virgin Mary, that never was it known that anyone who fled to thy protection, implored thy help, or sought thine intercession was left unaided.
Inspired by this confidence, I fly unto thee, O Virgin of virgins, my mother; to thee do I come, before thee I stand, sinful and sorrowful. O Mother of the Word Incarnate, despise not my petitions, but in thy mercy hear and answer me.
Amen.
Angele, I’d been following the case for a while. Oral arguments were on June 10th, and I just kept checking the Fifth DCA’s websight. If you want, go to http://www.5dca.org
Then click on oral arguments, then click on video arkives, then type in Pendergraft, and it should be their. Hope you’re having a fun day! RJ
They don’t usually do lam inserts at OWC. She was going to stay til her baby is delivered. They do all the labor-and-delIveries at OWC now. No more at EPOC. they don’t let anyone leave until the child is born.
We are beginning to believe that the court documents are merely affirming the original assessment & penalties against P. We think that this is not another suspension but an overruling of P’s appeal regarding all charges & penalties stemming from his illegal activities.
We will continue to be alert & diligent, by the grace of God. I do hope to Jesus that He is pleased to bring Pendergraft to repentance. Please pray that Christians come forward to be at the killing place on Monday, Thursday, Friday am & pm. Those are the times that we are without a committed ministry pair. Although, praise God, we are there for the other four abortion times, we mourn over the fact that at 40-60 aborting women go have their babies murdered at OWC every week without a single Christian to engage these moms to offer them help & appeal to their conscience with the gospel of life & eternity. I continue to feel ashamed that in a city with 1500 churches there aren’t 8 more believers to partner to reach aborting mothers for a few hours each week.
May God have mercy on us.
For those of you who don’t have adobe reader, Heres the text of the opinion.
RJ
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT JANUARY TERM 2009
JAMES S. PENDERGRAFT,
IV, M.D.,
Appellant,
v. Case No. 5D07-3961 & 5D08-155
DEPARTMENT OF HEALTH,
BOARD OF MEDICINE,
Appellee.
________________________________/
Opinion filed July 2, 2009
Administrative Appeal from the
Department of Health, Board of Medicine.
Kathryn L. Kasprzak, Orlando, and
Kenneth J. Metzger of Metzger,
Grossman, Furlow & Bayo, LLC,
Tallahassee, and Lucinda M. Finley,
Buffalo, New York, for Appellant.
Bill McCollum, Attorney General, Scott D.
Maker, Solicitor General, Craig D. Feiser
and Courtney Brewer, Deputy Solicitors
General, Wings S. Benton and Brittany
Adams Long, Tallahassee, for Appellee.
WOHN, R., Associate Judge.
James S. Pendergraft, IV., M.D., a licensed physician in the State of Florida,
appeals a final order of the Board of Medicine (“the Board”) suspending his license to
practice medicine and imposing other penalties. Although he raises numerous points
2
on appeal, only one warrants discussion. Finding no merit in Dr. Pendergraft’s
challenge to the Board’s actions, we affirm.
Chapters 456 and 458, Florida Statutes, pertain to the practice of medicine.
Chapter 456 gives the Department of Health (“the Department”) the power to regulate
medical professionals. Similarly, Chapter 458 is intended to ensure that every physician
practicing in this State meets minimum requirements for safe practice and that any
physician who falls below minimum competency or who otherwise presents a danger to
the public is prohibited from practicing medicine in this State. § 458.301, Fla. Stat.
(2005). The Department instituted this action against Dr. Pendergraft, who is board
certified in obstetrics and gynecology, alleging that he violated sections 456.072(1)(k)
and 458.331(1)(g), Florida Statutes (2005), which provide that disciplinary action may
be taken if a licensee fails to “perform any statutory or legal obligation” placed upon
him. Specifically, the Department alleged that Dr. Pendergraft violated sections
456.072(1)(k) and 458.331(1)(g) when he performed a third trimester abortion in his
clinic, which is not a hospital. An Administrative Law Judge (“ALJ”) agreed, and found
that the Department presented clear and convincing evidence that Dr. Pendergraft
violated sections 456.072(1)(k) and 458.331(1)(g).
In her recommended order, the ALJ determined that Dr. Pendergraft’s
performance of the third trimester abortion in his clinic was contrary to sections
456.072(1)(k) and 458.331(1)(g) in several respects. First, she found that Dr.
Pendergraft’s conduct violated section 797.03(3), Florida Statutes (2005), which
3
prohibits the performance of such a procedure in a location other than a hospital.1
Second, the ALJ found that the same conduct violated section 390.0111(1)(a), Florida
Statutes (2005), which prohibits third trimester abortions unless “two physicians certify
in writing to the fact that, to a reasonable degree of medical probability, the termination
of the pregnancy is necessary to save the life or preserve the health of the pregnant
woman.” Third, the ALJ found that Dr. Pendergraft failed to comply with section
390.0111(1)(b), Florida Statutes (2005), because he did not certify in writing “to the
medical necessity for legitimate emergency medical procedures for termination of
pregnancy in the third trimester, and another physician is not available for
consultation.”2 Finally, the ALJ found that there was clear and convincing evidence that
Dr. Pendergraft committed medical malpractice pursuant to section 458.331(1)(t)1.,
Florida Statutes (2005), by failing to meet the standard of care for performing third
trimester abortions as set forth in sections 390.0111 and 797.03. Based on these
findings, the ALJ recommended suspension of Dr. Pendergraft’s medical license and
imposition of other penalties. The Board approved and accepted the recommended
order, including the recommended penalties.
On appeal, Dr. Pendergraft argues that the violation of sections 456.072(1)(k)
and 458.331(1)(g) cannot serve as the basis for any disciplinary action by the Board
because he has not been convicted of violating sections 390.0111 and 797.03. We
disagree.
1 Criminal sanctions are available for violation of this subsection as any person
who violates this provision is guilty of a second degree misdemeanor. § 797.03(4), Fla.
Stat. (2005).
2 A violation of sections 390.0111(1)(a) and (1)(b) is punishable as a third degree
felony. § 390.0111(10)(a), Fla. Stat. (2005).
4
The Board disciplined Dr. Pendergraft for “failing to perform any statutory or legal
obligation” placed upon him as a licensed physician pursuant to sections 456.072(1)(k)
and 458.331(1)(g). Although the statutes Dr. Pendergraft is charged with violating may
provide penal sanctions, there is no explicit statutory requirement that a licensee be
adjudicated guilty of the acts specified in the penal statutes before disciplinary action
may be instituted. In fact, both sections 456.072(1)(c) and 458.331(1)(c), Florida
Statutes (2005), allow disciplinary action, regardless of adjudication, for crimes the
licensee may have committed in any jurisdiction relating to the practice of, or the ability
to practice, medicine. Further, even an acquittal in a criminal prosecution will not bar a
license revocation proceeding based upon the same offense as the criminal
prosecution. State ex rel. De Gaetani v. Driskell, 190 So. 461, 463 (Fla. 1939) (holding
revocation of appellant’s medical license not barred by previous acquittal on charge of
criminal abortion, even though criminal charge was basis of license revocation
proceeding); see State ex rel. Sbordy v. Rowlett, 190 So. 59, 61-62 (Fla. 1939)
(recognizing that acquittal in criminal court on identical charges as those forming basis
for medical board’s complaint does not bar inquiry into physician’s actions for purposes
of depriving him of right to practice medicine).
It is the stated intent or purpose of both Chapters 456 and 458 to protect the
public, not to provide penal or criminal sanctions, and not to require proof of criminal
intent. The revocation of a license is intended to protect public welfare. Locklear v. Fla.
Fish & Wildlife Conservation Comm’n, 886 So. 2d 326 (Fla. 5th DCA 2004). To require
proof, beyond a reasonable doubt, that the medical care provider intended to violate a
statute prohibiting certain activities would place a requirement on licensing boards and
5
administrative agencies that would curtail their ability to fulfill their public protection
function. Furthermore, neither section 456.072(1)(k) nor section 458.331(1)(g) requires
that a licensee be convicted of a penal statute before he can be disciplined by an
administrative agency and it does not appear that such a construction would further the
intent of the disciplinary statutes.
We have carefully considered Dr. Pendergraft’s remaining arguments, and
finding no reversible error, affirm the final order of the Board.
AFFIRMED.
LAWSON, J., and PLEUS, JR., R., Senior Judge, concur.
“finding no reversible error, affirm the final order of the Board”
I am awaiting input from two attorneys on a legal explanation of this order. In the meantime, I believe that this means that Pendergraft tried to appeal this order of suspension & penalties in order to clear his record (&, possibly to open the way to SUE for loss of income, libel, slander, whatever, as HE previously did with the city of Orlando AND WON over $600,000). The court has concluded that no error was made & that the penalties & sanctions (ie: the suspension of his medical license which has already taken place & been deemed completed) were not in error.
I may be wrong, but I do not believe that this means that he is subject to another suspension of medical license at this time.
I hope that I am wrong. But, sadly, Pendergraft has many other murderers in his outfit who are more than happy to continue to slay innocent babies for the mothers who want abortions. Then these killers will hand over a goodly portion of the procedes to Pendergraft. Even if P himself never lays a hand on another mother or her baby for the rest of his life, he can still end up in the catbird seat … until judgment day. Then his worst nightmares will come to pass unless he repents.
It is not my desire to burst everyone’s bubble & am always hopeful in the Lord but I am also a realist. Let’s keep praying & working to expose Pendergraft & every other baby-killer & everyone who works for them, until Jesus returns or we go to meet Him at our own resurrection from the dead.
Pat, I’ve been keeping a closs woach on Pendy(Pendergraft) I really like your blog! RJ
Dr. Renelique the doctor who was suposed to proform Sycloria Williams abortion, is apparently appealing the order revoking his medical license. I’ll keep every one posted when I found out more information. RJ
I am still praying that he loses his license permanently… I know that Perp and other merchants of death will step up to the plate but the way I see it… sooner or later he will hang himself out to dry..then it’s one down and many left to go!!
YEAH!!!!!!!
You know Angele, You asked the question, “ow meny times must a doctors license be suspended, before it is revoked for good?” I can’t remember actly what you said, but that was the question in a nutshell. I believe if a doctor makes a valid mistake, he should be shown where he is wrong, and then be given a chance to correct that wrong. However, a man such as Pendy(Pendergraft), should be made an example to these roge doctors, that if you brake the law, you will be stopped! In your opinion Angele, do you think we need to introduce tougher laws? Take a moment to look at Bethinthies photo! Your brother in Christ, RJ Sandefur
Sure wish we could get O’Reilly breathing down Pendergraft’s neck. Would be wonderful if O’Reilly was willing to do a series of investigative pieces of P, wouldn’t it?
You know what is very sad? Our Saturday team told everyone coming to kill their babies that Pendergraft’s medical license was suspended. Nobody appeared concerned. Each of abortion bound ‘patients’ were personally handed a copy of the court’s ruling this morning, but it didn’t seem to make a difference to any of them either.
It reminded me of ministering at OWC the first day it opened after it had been closed for several months during Pendergraft’s emergency suspension. There was a HUGE crowd of women & their companions waiting outside for the mill to open. We had a long time to speak with the aborting moms before the clinic worker’s unlocked the front door. We told everyone that the clinic had been shut down by the department of health for three months. Many of the people nodded & said; “Yeah, I know.” We asked them if they knew that the owner of the place had been caught doing illegal abortions & dispensing narcotics without a DEA number. A few of them laughed & said: “Everyone makes mistakes”, “Well, we all have skeletons in our closet, don’t we?” “None of us is perfect”.
When Dr Nelson Kraucak brought his wife in to kill her baby by labor-and-delivery I asked him if he knew that Pendergraft had his license suspended, yadda, yadda. He laughed. A few minutes later Kraucak attacked me, pushed me to the ground & kicked me. I reckon people don’t want to hear the truth.
Hear no evil. See no evil. Speak no evil. Turn a blind eye to evil. I find that a LOT.
Heres my email for any one who wants it:
rjs59@hotmail.com
If you support people like Pendergraft, don’t bother writing.
Hey
Rj, I had a long reply, lost it, twice… about to be late and will try again later.
In short the answer is absolutely.
I have a question… was Pendi’s license supsended at the time that Dr. K came to the clinic and assaulted you, Patte?
If so, how could this dude be practicing?
I understand that the clinic itself can be open..did Pendi abort that child during the time his license was suspended?
Five or six questions kept popping in my head while I was asleep even. If the answers to some of them are yes… I fail to comprehend why we cannot get an investigation and possibly media coverage..
This clinic needs to close.. Pendi needs to shut down.
I have about a bazillion things on my plate at the moment but am willing to push them all aside (except my day job and parenting) if we have something to nail this guy on.
Ok, gotta go… any info you have that is factual and I can do the leg work on, let me know.
a
Angele, You’re cool! What should if I find out anything else? RJ
I found some info on Pendi. Although this is a recamended order, Well know what the facts are.
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD OF
MEDICINE,
Petitioner,
vs.
JAMES S. PENDERGRAFT, IV, M.D.,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
Case No. 06-4288PL
RECOMMENDED ORDER
Pursuant to notice, a final hearing was held in this case
on June 20 and 21, 2007, in Orlando, Florida, before Susan B.
Harrell, a designated Administrative Law Judge of the Division
of Administrative Hearings.
APPEARANCES
For Petitioner: Irving Levine, Esquire
Department of Health
4052 Bald Cypress Way, Bin C-65
Tallahassee, Florida 32399-3265
For Respondent: Kenneth J. Metzger, Esquire
Fowler White Boggs Banker, P.A.
Post Office Box 11240
Tallahassee, Florida 32302
Kathryn L. Kasprzak, Esquire
Fowler White Boggs Banker, P.A.
200 South Orange Avenue, Suite 1950
Orlando, Florida 32801
STATEMENT OF THE ISSUES
The issues in this case are whether Respondent violated
Subsections 456.072(1)(k), 458.331(1)(g), 458.331(1)(m), and
458.331(1)(t), Florida Statutes (2005),1 and Subsections
458.331(1)(m) and 458.331(1)(t), Florida Statutes (2004), and,
if so, what discipline should be imposed.
PRELIMINARY STATEMENT
On September 7, 2006, the Department of Health (Department)
filed with the Board of Medicine, a six-count Administrative
Complaint against Respondent, James S. Pendergraft, IV, M.D.
(Dr. Pendergraft), alleging that Dr. Pendergraft violated
Subsections 456.072(1)(k), 458.331(1)(g), 458.331(1)(m), and
458.331(1)(t), Florida Statutes, relating to Patient R.W., and
that he violated Subsections 458.331(1)(m) and 458.331(1)(t),
Florida Statutes (2004), relating to Patient T.R.
Dr. Pendergraft requested an administrative hearing, and the
case was forwarded to the Division of Administrative Hearings on
November 3, 2006, for assignment of an Administrative Law Judge
to conduct a final hearing.
The final hearing was scheduled for January 23 through 25,
2007. Several continuances were requested and granted, and the
final hearing was scheduled to commence on June 20, 2007.
The Department filed a Motion for Official Recognition,
which was granted by Order dated May 30, 2007. Official
recognition was taken of Sections 390.011, 390.0111, 390.012,
456.50 and 797.03 and Subsections 456.072(1)(k), 458.331(1)(g),
(m), and (t)1., Florida Statutes; 21 U.S. Code Sections 802,
821, 822, and 824; and 212 Code of Federal Regulations
Section 1301 (subparts 1, 11 through 14, 22, 35, 36, and 76).
On June 15, 2007, the Department filed a Motion to Amend
the Administrative Complaint, which was granted at the
commencement of the final hearing.
The parties filed a Joint Pre-hearing Stipulation and
stipulated to certain facts contained in Section E of the Joint
Pre-hearing Stipulation. Those facts have been incorporated in
this Recommended Order to the extent relevant.
On June 18, 2007, the Department filed a Notice stating
that it would not be presenting evidence at the final hearing
relating to DOH Case 2004-39923, which related to Patient T.R.
At the final hearing, the parties submitted Joint
Exhibits 1 through 7, 8A, 8B, and 9 through 11, which were
admitted in evidence. The Department called Dr. Pendergraft and
Jorge Gomez, M.D., as witnesses. Petitioner’s Exhibits 1, 2,
and 3 were admitted in evidence.
Leave was granted for Petitioner to take the deposition of
Zvi Harry Perper, M.D., after the final hearing. Dr. Perper was
deposed via written deposition questions. Responses to the
questions were filed on August 17, 2007.
At the final hearing, Dr. Pendergraft called Jay Neil
Plotkin, M.D., and Steven Warsof, M.D., as his witnesses.
Respondent’s Exhibits 1 through 7 and 9 were admitted in
evidence. Two exhibits were entered into evidence as
Respondent’s Exhibit 4: the Agency for Healthcare
Administration Surveyor’s Notes and the deposition testimony of
Dr. P.C. For ease of reference, the surveyor notes are
designated as Respondent’s Exhibit 4A and the deposition of
Dr. P.C. will be designated as Respondent’s Exhibit 4B.
The three-volume Transcript was filed on August 13, 2007.
The parties filed their Proposed Recommended Orders on
September 10, 2007. The parties’ Proposed Recommended Orders
have been considered in the rendering of this Recommended Order.
FINDINGS OF FACT
1. The Department is the state agency in Florida charged
with regulating the practice of medicine pursuant to
Section 20.43 and Chapters 456 and 458, Florida Statutes.
2. At all times material to the Amended Administrative
Complaint, Dr. Pendergraft has been a licensed physician in the
State of Florida, having been issued license No. ME 59702.
Dr. Pendergraft is board-certified in Obstetrics and Gynecology.
He does not have hospital privileges in Florida.
3. At all times material to the Amended Administrative
Complaint, Dr. Pendergraft, alone or with one or more partners,
owned and operated Orlando Women’s Center, Inc. (OWC), a clinic
located in Orlando specializing in abortions. OWC is not a
hospital.
4. At all times relevant to the Amended Administrative
Complaint, Dr. Pendergraft did not have a current, valid Drug
Enforcement Administration (DEA) number.
5. On June 3, 2005, R.W. presented to her primary care
physician symptoms of weight gain, fatigue, and lack of a
menstrual period for several months. R.W. was a marathon runner
and had experienced a delay in her menstrual cycle before
because of her strenuous training. She had been taking oral
contraceptives. At that time, her primary care physician did
not diagnose R.W. as being pregnant.
6. A couple of weeks after her visit with her primary care
physician, R.W. still had not regained her menstrual cycle and
took a home pregnancy test. The results of the home pregnancy
test were positive. R.W. contacted her primary care physician,
who ordered laboratory tests for R.W. Laboratory tests were
conducted on June 14, 2005, and June 21, 2005. Both tests
confirmed the pregnancy.
7. R.W. was referred to Bert Fish Medical Center for an
ultrasound on June 21, 2005. The ultrasound showed that R.W.
was pregnant. The physician who prepared the diagnostic imaging
report based on the ultrasound stated in the report:
There is a single intrauterine fetus with an
estimated gestational age of 24.5 weeks.
Positive fetal heartbeat is present at 142
beats per minute. However, there is severe
oligohydiamnios with no positive fetal
movement.
8. Gestational age is usually calculated from the first
day of the last menstrual period (LMP) of the pregnant woman.
On average, the last menstrual cycle occurs two weeks prior to
conception. Thus, the gestational age that is determined by the
LMP is actually two weeks more than the date of conception.2
When the LMP is unknown, fetal measurements are used to
calculate the gestational age.
9. Oligohydramnios means a lack of amniotic fluid.
Amniotic fluid is basically the fetus’ urine. A lack of
amniotic fluid can be caused by the lack of kidneys or
obstructed kidneys, rupture of the membranes, or a malfunction
of the placenta. The lack of amniotic fluid makes it difficult
to assess the fetal measurements using ultrasound.
10. R.W. was referred to an obstetrician, Dr. P.C., who
admitted R.W. to Halifax Medical Center for routine laboratory
work and an obstetrical ultrasound. The ultrasound was
performed on June 22, 2005, and showed that the fetus was in a
breech presentation, there was markedly decreased amniotic
fluid, the bowel was abnormal, and the ventral wall was
suspicious. Based on the ultrasound, it appeared there was
gastroschisis or omphalocele. Gastroschisis occurs when the
abdominal wall of the fetus does not close properly and the
intestines are outside the body. Omphalocele is a herniation of
the intestines, and a sac-like structure covers the intestines
outside the abdominal wall. The assigned gestational age
estimated by the physician reviewing the ultrasound was 25 weeks
and five days.3
11. R.W. was referred to a perinatologist in Jacksonville.
Another ultrasound was performed on June 23, 2005. The
assigned gestational age was 25 weeks and six days, which would
mean that the age of the fetus was 23 weeks and six days from
conception.4 The lack of amniotic fluid and the position of the
fetus made it difficult to determine the actual gestational age
of the fetus. The perinatologist reported the following to Dr.
P.C.:
At this time, an ultrasound examination was
performed which showed a single living fetus
in breech presentation. There is no
amniotic fluid which precluded an adequate
examination of fetal anatomy. The right
kidney and bladder were visualized
essentially excluding diagnosis of renal
agenesis. A normal appearing 4 chamber
structure was seen which visually appears to
occupy more than 50% of the chest cavity.
This is also very difficult to evaluate due
to the position of the baby. There appears
to be an anterior abdominal wall defect most
likely a gastroschisis, however, again this
is impossible to evaluate in great detail.
Of importance and further complicating the
problems in this case, is the biometry.
Measurements of head circumference and
cerebellum are consistent with 30 weeks,
however, the femur length is consistent with
25 weeks. The fact that this patient has
been amenorrheic since October when she
could be up to 34 weeks gestation is
significant. We don’t know the exact
gestation but it is of concern that there is
a dramatic difference between the
extremities, abdomen, and head circumference
as well as the cerebellum. This points to a
growth retardation process. Doppler studies
of the umbilical circulation were slightly
elevated but if there had been placental
disfunction I would have expected an absent
diastolic component which was not the case.
* * *
[M]y biggest concern has to do with the
anhydramnios and the fact that we don’t know
for how long this process has been active.
Pulmonary hypoplasia is a strong
consideration given the size of the chest
and the virtual absence of fluid.
Nevertheless, not knowing for how long she
has not had fluid is difficult to quote her
a risk. The second area of concern is that
of the appearance of a structural
abnormality. Typically gastroschisis is not
associated with a chromosomal anomaly,
however, given the discrepancies in
biometries and the absence of amniotic
fluid, I wonder if this is not a
gastroschisis or if it is, part of a more
complex situation.
12. The perinatologist conveyed his findings to Dr. P.C.,
who discussed the situation with R.W. R.W. decided to terminate
the pregnancy. The office notes of Dr. P.C. stated, “It was
felt by me and my partners that facilitating delivery of this
non-viable child was appropriate.” Dr. P.C. called
Dr. Pendergraft to discuss the case. Dr. Pendergraft agreed to
help, and Dr. P.C. gathered R.W.’s medical records to send to
Dr. Pendergraft.
13. On July 7, 2005, R.W. presented to Dr. Pendergraft at
OWC. R.W. filled out an information sheet and listed the first
day of her last normal period as January 5, 2005.5 R.W. filled
out the appropriate consent forms, which a counselor reviewed
with her. R.W.’s vital signs were taken and laboratory tests
were performed by staff at OWC.
14. Dr. Pendergraft’s notes stated that the sonogram
showed severe growth restriction of the fetus. He further
indicated that there was a possibility of severe pulmonary
hypoplasia and risk of life-threatening sudden health issues or
probable fetal, prenatal demise. Dr. Pendergraft wrote in his
notes that R.W.’s PMD OB/GYN physician concurred with the
maternal health reasons for the termination of the pregnancy.
15. On July 7, 2005,6 at approximately 4:27 p.m.,
Dr. Pendergraft administered Digoxin into the heart of the fetus
to stop the fetal heart beat. Dr. Pendergraft and his medical
assistant, S.M., monitored the fetal heart beat using a sonogram
until the fetal heart stopped. The procedure was documented on
a form used by the OWC entitled “Second Trimester Medical
Procedure.” On the form, it is noted that the patient was
evaluated on July 7, 2005, and found to be 27 to 28 weeks
pregnant, which is 25 to 26 weeks from conception. According to
T.S., a medical assistant employed by Dr. Pendergraft, the
handwriting which indicates the estimated length of the
pregnancy belongs to Dr. Perper, a colleague of Dr. Pendergraft.
Both Dr. Perper and Dr. Pendergraft signed the form.
16. After the Digoxin procedure was completed, R.W. was
taken to a private room and given Cytotec to induce labor. S.M.
continued to administer Cytotec and monitor R.W. until 8:30
p.m., when T.S. relieved S.M.
17. At approximately 12:30 a.m., on July 8, 2005, R.W.
developed a fever and the administration of Cytotec was
discontinued. T.S. administered Ibuprofen to R.W. to lower the
fever.
18. At 1:30 a.m., T.S. noted that R.W. was having some
cramping. T.S. wrote the following in the progress notes: “I
have a standing order from Dr. Pendergraft for 2 cc Demerol
[with] 1 cc Phenergran.” This order was to alleviate the pain
from the cramping. At the final hearing, T.S. stated that the
note was not totally accurate, because the standing order was
from Dr. Perper and not Dr. Pendergraft because Dr. Pendergraft
did not have DEA authorization. She attributes the error in her
notes to her 20-year working relationship with Dr. Pendergraft
and her automatically thinking of Dr. Pendergraft in terms of
standing orders. The standing order itself was not submitted
into evidence. The evidence is not clear and convincing that
Dr. Pendergraft gave the standing order for the Demerol and
Phenergran.
19. At 4:30 a.m., the cramping had increased. T.S. gave
R.W. an injection of 2 cc of Demerol with 1 cc of Phenergran.
At 6:30 a.m., R.W. delivered the fetus and placenta at the same
time inside an empty water sack. The products of conception,
which included the fetus, membranes, and placenta weighed
800 grams. The weight of the products of conception was
recorded on a form used by the OWC, entitled “Clinic Examination
of Products of Conception.” The form listed the preoperative
estimate of gestational age to be 28 weeks, which would be 26
weeks from conception. Dr. Pendergraft was one of the
signatories on the form.
20. Dr. Pendergraft charged R.W. $12,000 for the
procedure.
21. Although, both Dr. Pendergraft and his associate
Dr. Perper, felt that, preoperatively, the gestational age of
the fetus was between 27 and 28 weeks, Dr. Pendergraft did not
transfer R.W. to a hospital.
22. Jorge Gomez, M.D., testified as an expert witness on
behalf of the Department. Dr. Gomez is board-certified in
obstetrics and gynecology and in maternal-fetal medicine.
Dr. Gomez opined that on July 7, 2005, the age of the fetus from
conception was 27 weeks. His opinion was based on biparietal
diameter (BPD), the head circumference, the size of the
cerebellum, and the femur length. He discounted the abdominal
circumference because the abdominal wall defect would result in
a less reliable measurement of the age of the fetus. The
abdominal wall defect would cause the measurement to be smaller
than would be expected for the age of the fetus.
23. Jay Neil Plotkin, M.D., testified as an expert witness
for Dr. Pendergraft. Dr. Plotkin has been a licensed physician
for 37 years and is board-certified in obstetrics and
gynecology. Dr. Plotkin has not treated patients for four years
and has not performed an abortion in six or seven years. It was
Dr. Plotkin’s opinion that the abortion occurred during the
second trimester rather than the third trimester. His opinion
is based on the combined fetal and placental weight at time of
delivery. He concluded that the gestational age at the time of
delivery was 24 weeks, which would translate to 22 weeks of
pregnancy from conception. He used a chart to determine the age
based on the weight of the fetus, but he did not know if the
chart was based on normal fetuses or included fetuses with
abnormalities such as the one at issue.
24. Dr. Pendergraft also called Steven Warsof, M.D., as an
expert witness. Dr. Warsof is an obstetrician/gynecologist with
a subspecialty in maternal-fetal medicine. He has spent most of
his professional career pursuing academic issues in obstetrical
ultrasonography. It was his opinion that R.W.’s pregnancy was
in the second trimester. He also based his opinion on the
weight of the products of conception after delivery.
25. Based on the evidence presented, it is clear and
convincing that R.W. was in her third trimester of pregnancy
when she had the abortion. The only two doctors who placed the
pregnancy in the second trimester based their opinions on the
weight of the fetus and placenta at the time of delivery.
Because of the complications of R.W.’s pregnancy, it is clear
that the fetus had not developed normally and was underweight
for its age. There had been a lack of amniotic fluid which is
essential to development of the fetus. Based on his office
records, it is also clear and convincing that Dr. Pendergraft
was under the impression that R.W. was in her third trimester of
pregnancy when he performed the abortion.
26. The medical records of Dr. Pendergraft do not contain
a written certification from two physicians that within a
reasonable degree of medical probability the termination of
R.W.’s pregnancy was necessary to save the life or preserve the
health of R.W. The evidence established that Dr. Pendergraft
wrote in his notes that there was a risk of life-threatening,
sudden health issues. Assuming he was referring to the health
issues of the pregnant woman, this note could be considered a
certification that to a degree of medical probability that the
abortion was necessary to preserve the health of R.W. However,
there is no written certification from another physician that
that was the case, and the note of Dr. Pendergraft that R.W.’s
primary care physician concurred with the maternal health
reasons for termination of the pregnancy is not a written
certification from another physician. The medical records kept
by Dr. Pendergraft do not contain a written certification that
there is a medical necessity for emergency medical procedures to
terminate the pregnancy and that no other physician is available
for consultation.
27. No evidence was presented concerning the allegations
in Counts IV, V, and VI of the Amended Administrative Complaint.
CONCLUSIONS OF LAW
28. The Division of Administrative Hearings has
jurisdiction over the parties to and the subject matter of this
proceeding. §§ 120.569 and 120.57, Fla. Stat. (2006).
29. The Department must establish the allegations in the
Amended Administrative Complaint by clear and convincing
evidence. Department of Banking and Finance v. Osborne Stern
and Company, 670 So. 2d 932 (Fla. 1996). The clear and
convincing standard has been described by the courts as follows:
[C]lear and convincing evidence requires
that the evidence must be found to be
credible; the facts to which the witnesses
testify must be distinctly remembered; the
testimony must be precise and explicit and
the witnesses must be lacking in confusion
as to the facts in issue. The evidence must
be of such weight that it produces in the
mind of the trier of fact a firm belief or
conviction, without hesitancy, as to the
truth of the allegations sought to be
established.
Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
30. The Department has alleged that Dr. Pendergraft
violated Subsection 456.072(1)(k), Florida Statutes, which
provides:
(1) The following acts shall constitute
grounds for which the disciplinary actions
specified in subsection (2) may be taken:
* * *
(k) Failing to perform any statutory or
legal obligation placed upon a
licensee. . . .
31. The Department has alleged that Dr. Pendergraft
violated Subsections 458.331(1)(g), (m), and (t), Florida
Statutes, which provide:
(1) The following acts constitute grounds
for denial of a license or disciplinary
action, as specified in s. 456.072(2):
* * *
(g) Failing to perform any statutory or
legal obligation placed upon a licensed
physician.
* * *
(m) Failing to keep legible, as defined by
department rule in consultation with the
board, medical records that identify the
licensed physician or the physician extender
and supervising physician by name and
professional title who is or are responsible
for rendering, ordering, supervising, or
billing for each diagnostic or treatment
procedure and that justify the course of
treatment of the patient, including, but not
limited to, patient histories; examination
results; test results; records of drugs
prescribed, dispensed, or administered; and
reports of consultations and
hospitalizations.
* * *
(t) Notwithstanding s. 456.072(2), but as
specified in s. 456.50(2):
1. Committing medical malpractice as
defined in s. 456.50. The board shall give
great weight to the provisions of s. 766.102
when enforcing this paragraph. Medical
malpractice shall not be construed to
require more than one instance, event, or
act.
32. Subsection 456.50(1)(g), Florida Statutes, defines
“medical malpractice” as “the failure to practice medicine in
accordance with the level of care, skill, and treatment
recognized in general law related to health care licensure,”
which is the standard of care specified in Subsection 766.102,
Florida Statutes, which provides that the prevailing standard of
care for a given health care provider is “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 providers.”
33. In Count I of the Amended Administrative Complaint,
the Department alleges that Dr. Pendergraft violated Subsections
456.072(1)(k) and 458.331(1)(g), Florida Statutes, by performing
a third trimester abortion procedure on R.W. at the OWC facility
and by performing a third trimester abortion procedure on R.W.
without having two physicians certify in writing to the fact
that, to a reasonable degree of medical probability, the
termination of the pregnancy was necessary to save the life or
preserve the health of R.W. or certifying that it was an
emergency and another physician was not available for
consultation.
34. Subsection 797.03(3), Florida Statutes, provides that
“[i]t is unlawful for any person to perform or assist in
performing an abortion on a person in the third trimester other
than in a hospital.” Subsection 390.0111(1), Florida Statutes,
provides:
(1) TERMINATION IN THIRD TRIMESTER; WHEN
ALLOWED.—No termination of pregnancy shall
be performed on any human being in the third
trimester of pregnancy unless;
(a) Two physicians certify in writing to
the fact that, to a reasonable degree of
medical probability, the termination of the
pregnancy is necessary to save the life or
preserve the health of the pregnant woman;
or
(b) The physician certifies in writing to
the medical necessity for legitimate
emergency medical procedures for termination
of pregnancy in the third trimester, and
another physician is not available for
consultation.
35. Subsection 390.011(8), Florida Statutes, defines
“third trimester” as “the weeks of pregnancy after the 24th week
of pregnancy.” The term “weeks of pregnancy” is not defined in
the Florida Statutes. Taken literally, the term would mean that
weeks of pregnancy would be the number of weeks that the woman
was actually pregnant. Therefore, it is concluded that weeks of
pregnancy refers to the number of weeks from the time of
conception and not the last menstrual period of the woman. If
the Legislature had intended that gestational age be used, it
could have so stated.
36. The Department has established by clear and convincing
evidence that Dr. Pendergraft violated Subsections 456.072(1)(k)
and 458.331(1)(g), Florida Statutes. R.W. was in her third
trimester of pregnancy when Dr. Pendergraft performed the
abortion. Subsection 797.03(7), Florida Statutes, prohibits
persons from performing third trimester abortions in locations
other than a hospital. Dr. Pendergraft was under a legal
obligation to perform the third trimester abortion in a
hospital, and he did not do so.
37. Dr. Pendergraft had a legal obligation pursuant to
Subsection 390.0111(1), Florida Statutes, to have the written
certifications of two physicians that within a medical
probability it is necessary to perform the abortion to save the
life or preserve the health of R.W. or to certify in writing
that an emergency existed, and there was no other physician
available for consultation. He did not do so. The notation in
his records that Dr. P.C. concurred with the maternal health
reasons for terminating the pregnancy is not sufficient to meet
the statutory requirement of Subsection 390.0111(1)(a), Florida
Statutes, and there is no certification in the records that an
emergency existed, and no other physician was available for
consultation.
38. In Count II of the Amended Administrative Complaint,
the Department alleges that Dr. Pendergraft violated Subsection
458.331(1)(m), Florida Statutes, by not certifying in writing
that to a reasonable degree of medical probability the
termination of R.W.’s pregnancy was necessary to save the life
or preserve the health of R.W., by failing to obtain a
concurring certification from a second physician, and by failing
to certify in writing that an emergency existed.
39. The Department has established by clear and convincing
evidence that Dr. Pendergraft violated Subsection 458.331(1)(m),
Florida Statutes. His medical records did not contain a
certification in writing from two physicians that within a
reasonable medical probability the abortion was necessary to
save the life or preserve the health of R.W., and he did not
certify in writing that an emergency existed and that there was
no other physician available to consult.
40. In Count III of the Amended Administrative Complaint,
the Department alleges that Dr. Pendergraft violated Subsection
458.331(1)(t)1., Florida Statutes, in one or more of the
following ways:
a. By performing a third trimester abortion
procedure on Patient R.W. at the OWC
facility.
b. By not certifying in writing that to a
reasonable degree of medical probability,
the termination of Patient R.W.’s pregnancy
was necessary to save the life or preserve
the health of the pregnant woman, or obtain
a concurring certification from a second
physician.
c. By not certifying in writing that an
emergency existed.
d. By not transferring Patient R.W. to a
hospital before performing the third
trimester abortion.
e. By prescribing, ordering or
administering Demerol to Patient R.W. when
Respondent did not have a current, valid DEA
number to allow him, as a licensed
physician, to prescribe, order, or
administer controlled substances.
41. The Department has failed to establish by clear and
convincing evidence that Dr. Pendergraft ordered the
administration of Demerol to R.W. when he did not have a
current, valid DEA number. Although the note of the medical
assistant indicated that the standing order for the Demerol was
from Dr. Pendergraft, she credibly testified that the order was
from Dr. Perper.
42. The Department has established by clear and convincing
evidence that Dr. Pendergraft violated Subsection
458.331(1)(t)1., Florida Statutes, by performing a third
trimester abortion on R.W. in a setting other than a hospital,
by not transferring R.W. to a hospital for the abortion, by
performing the abortion when it was not an emergency, and by
performing the abortion without the written certification of two
physicians that the procedure was necessary to save the life or
preserve the health of R.W. The standard of care for performing
third trimester abortions in Florida is set forth in Sections
390.0111 and 797.03, Florida Statutes, and Dr. Pendergraft
failed to meet that standard of care.
43. The Department failed to establish the allegations set
forth in Counts IV, V, and VI of the Amended Administrative
Complaint.
44. Florida Administrative Code Rule 64B8-8.001 sets forth
the range of penalties to be imposed for violations of Chapters
456 and 458, Florida Statutes. The range of penalties for a
violation of Subsections 456.072(1)(k) and 458.331(1)(g),
Florida Statutes, goes from a letter of concern to revocation
and an administrative fine of from $1,000.00 to $10,000.00. The
penalty for a violation of Subsection 458.331(1)(m), Florida
Statutes, goes from a reprimand to two years’ suspension
followed by probation and an administrative fine from $1,000.00
to $10,000.00. The penalty for violation of Subsection
458.331(1)(t)1., Florida Statutes, goes from one year’s
probation to revocation and an administrative fine from
$1,000.00 to $10,000.00.
45. On September 10, 2007, Dr. Pendergraft filed a Motion
for Attorney’s Fees and Costs relating to Counts IV, V, and VI
of the Amended Administrative Complaint pursuant to Sections
57.105 and 120.595, Florida Statutes.7 Section 120.595, Florida
Statutes, cannot form the basis for an award of attorney’s fess
in the instant case. Subsection 120.595(1)(b), Florida
Statutes, provides:
(b) The final order in a proceeding
pursuant to s. 120.57(1) shall award
reasonable costs and a reasonable attorney’s
fee to the prevailing party only where the
nonprevailing adverse party has been
determined by the administrative law judge
to have participated in the proceeding for
an improper purpose.
46. In the instant case, the Department does not meet the
definition of a “nonprevailing adverse party,” as defined in
Subsection 120.595(1)(e)3., Florida Statutes, as one “that has
failed to have substantially changed the outcome of the proposed
or final agency action. . . .” The Department has not sought to
change the outcome of the proposed agency action.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of
Law, it is RECOMMENDED that a final order be entered finding
Dr. Pendergraft guilty of violations of Subsection
456.072(1)(k), 458.331(1)(g), 458.331(1)(m), and
458.331(1)(t)1., Florida Statutes; dismissing Counts IV, V, and
VI of the Amended Administrative Complaint; suspending his
license for one year followed by three years of probation with
indirect monitoring; imposing an administrative fine of
$10,000.00; and denying his motion for attorney’s fees pursuant
to Subsection 120.595(1)(b), Florida Statutes.
DONE AND ENTERED this 26th day of October, 2007, in
Tallahassee, Leon County, Florida.
S
SUSAN B. HARRELL
Administrative Law Judge
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847
http://www.doah.state.fl.us
Filed with the Clerk of the
Division of Administrative Hearings
this 26th day of October, 2007.
ENDNOTES
1/ All references to the Florida Statutes are to the 2005
version, unless otherwise stated.
2/ The age of the fetus at the time of the ultrasound on
June 21, 2005, based on date of conception would have been
22.5 weeks or 22 weeks and three and one-half days. Thus, based
on the ultrasound taken on June 21, 2005, R.W. would have been
24 weeks and five and one-half days pregnant.
3/ Based on the findings of the ultrasound done on June 22,
2005, R.W. would have been 23 weeks and five days pregnant from
the time of conception. Thus, based on the findings of the
June 22, 2005, ultrasound, R.W. would have been 25 weeks and six
days pregnant at the time of the abortion.
4/ Based on the findings of the physician interpreting the
ultrasound on June 23, 2005, R.W. would have been pregnant for
25 weeks and six days at the time of the abortion based on the
dating of pregnancy from conception.
5/ The perinatologist who examined R.W. was under the impression
that R.W.’s last menstrual period was in October 2004. However,
R.W. listed January 5, 2005, as the first day of her last normal
period. A note in Dr. P.C.’s records indicate that R.W. ran her
last marathon in January 2005. Thus, it is not clear if R.W.
was listing the time in which she had concluded her strenuous
training and should have resumed her normal periods or if
January 5, 2005, was, indeed, the last normal period that she
had before she learned that she was pregnant. The opinions of
the experts who testified were based on the premise that R.W.
was not able to determine the date of her last menstrual period
because of her amenorrhea. However, if her last menstrual
period was January 5, 2005, she would have been 24 weeks and one
day pregnant at the time of the abortion on July 7, 2005, based
on the fetal age from conception.
6/ The Amended Administrative Complaint alleged that
Dr. Pendergraft performed the abortion on July 5, 2005; however,
the evidence established the abortion on July 7, 2005.
Dr. Pendergraft argued in his Proposed Recommended Order that he
was deprived of due process because the Department did not prove
that the abortion occurred on July 5, 2005. The reference to
July 5, 2007, in the Amended Administrative Complaint is a
scrivener’s error. Dr. Pendergraft was not prejudiced by the
error. He fully defended against the Amended Administrative
Complaint. The instant situation differs vastly from having to
defend against a change that was not alleged or conduct that
was not alleged. See Werner v. Dept. of Ins. & Treasurer,
689 So. 2d 1211, 1213-1214 (Fla. 1st DCA 1997).
7/ The motion as it relates to Section 57.105, Florida Statutes,
is dealt with by separate order.
COPIES FURNISHED:
Irving Levine, Esquire
Department of Health
4052 Bald Cypress Way, Bin C65
Tallahassee, Florida 32399-3265
Kenneth J. Metzger, Esquire
Fowler White Boggs Banker, P.A.
Post Office Box 11240
Tallahassee, Florida 32302
Kathryn L. Kasprzak, Esquire
Fowler White Boggs Banker, P.A.
200 South Orange Avenue, Suite 1950
Orlando, Florida 32801
Larry McPherson, Executive Director
Board of Medicine
Department of Health
4052 Bald Cypress Way
Tallahassee, Florida 32399-1701
Josefina M. Tamayo, General Counsel
Department of Health
4052 Bald Cypress Way, Bin A-02
Tallahassee, Florida 32399-1701
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions
to this Recommended Order should be filed with the agency that
will issue the Final Order in this case.
Thanks so much for sharing all this, RJ.
I am in Alaska & don’t have hand-on access to the documents on P’s suspension which I have at home. I am trying to piece together all of the dates of when P’s license was suspended & when it was restored. Kraucak attacked me on August 29, 2007.
There have always been others who would ‘supervise’ the labor-and-delivery killings. (Usually off-site).
Here’s a state docket with regards to P’s case:
http://www.doah.state.fl.us/internet/search/docket.cfm?RequestTimeout=500&CaseNo=06-004288&Petitioner=&Respondent=&URLString
I am terrible at doing research. I wish I could find when his license was restored. I am trying.
Take a look at the story of Pendergraft having his medical suspension for another year.
http://www.wftv.com/news/14740280/detail.html
A friend just sent this to me:
Re: James Scott Pendergraft 1V M D, License Status:
The State of Florida currently lists Dr Pendergrafts license as :
Obligations Active
The posted State definition of Obligations Active reads;
The licensing board or department has disciplined the licensed practitioner and
a penalty, which may include restrictions and/or additional requirements, was
placed on the licensed practitioner.
The licensed practitioner may practice his/her profession in the State of Florida
under conditions specified by the licensing board or department.
I’ve read that to RJ