This Letter to the Editor was sent in from Vance Dawson, attorney for Dr. Harold E. Smith, following publication of UF Doc With Addiction History on Leave, Dec. 9.
To the Editor:
I am counsel for Dr. Harold E. Smith with regard to a medical malpractice case styled The Estate of Tomlinson v. Harold E. Smith as well as the case of The Department of Health v. Harold Smith.
Dr. Smith is not going to accept the terms dictated by the Board of Medicine. Instead, we intend to challenge the entirety of the case and have this matter adjudicated by an administrative law judge.
The Board of Medicine’s counter proposal on Dec. 6, 2013, seemed somewhat illogical. The complaint is that the deceased, Alice Tomlinson, exhibited drug seeking behavior. She also had chronic pain syndrome and was depressed and withdrawn.
Dr. Harold Smith prescribed the appropriate amount of medication and even Plaintiff’s own medical malpractice expert
agreed that he in his practice has seen the same amount of Oxycontin prescribed by doctors to his patients as Dr. Smith had prescribed to Alice Tomlinson in the Dec. 11-22, 2010 time frame.
Parenthetically, the night before Alice Tomlinson died, Dr. Smith reduced her medication so therefore the complaint by the Department of Health was inaccurate insofar as the amount of medication that it thought Dr. Smith was prescribing on the day Ms. Tomlinson died.
It should also be noted that on the morning of Dec. 22, 2010, Ms. Tomlinson was found unconscious in the bathroom adjacent to her sleeping quarters. The obvious presumption in medicine is that when a patient is found unconscious in a bathroom that he or she has fallen.
The nursing staff at Central Florida Behavioral Hospital did not contact Dr. Harold Smith with respect to this fall that occurred at approximately 5:00 a.m. Instead they contacted (another physician) who did not give any instruction that this patient should be transported to the emergency room immediately with respect to the presumption that she had fallen and hurt her head.
The Plaintiff’s expert in the medical malpractice case stated that the failure to transfer the patient to the emergency room was a deviation from the standard of care and had the patient been transferred to the emergency room, Narcan would have been administered and the patient would be alive today.
Plaintiff’s expert also stated the nursing personnel at Central Florida Behavioral Hospital were negligent insofar as not transferring the patient to the emergency room. In the end, Dr. Harold Smith was not contacted with respect to this development that occurred at approximately 5 a.m. on Dec. 22, 2010. Instead, Dr. Smith arrived at Central Florida Behavioral Hospital at approximately 8 a.m. whereupon a code was called for Ms. Tomlinson.
I would point out that the amount of medication Dr. Smith prescribed to Ms. Tomlinson was completely compliant with the standard of care. Plaintiff’s expert conceded this in his deposition which was taken on April 26, 2013. We have retained board-certified experts who opine that Dr. Smith was compliant with the standard of care insofar as his care and treatment of Ms. Tomlinson was concerned.
Finally, we have retained a toxicologist who is expected to testify that the amount of Oxycontin that was prescribed to Ms. Tomlinson by Dr. Smith, even at a rate of 30 mgs three times a day, was not an amount sufficient to equate to Oxycontin poisoning. Moreover, the amount of Oxycontin found in Ms. Tomlinson’s blood stream rated at .251 mgs per liter, far in excess of what would be expected given the amount of
medication Ms. Tomlinson was prescribed.
Stated in terms that perhaps you will understand, if you consume ten beers, your blood alcohol content might in fact be .16 grams per deciliter or perhaps .24 grams per deciliter but it would not be .75 grams per deciliter.
The amount of medication Ms. Tomlinson was prescribed and had been taking was not an amount sufficient to equate to the amount found in her blood serum level by the medical examiner when the autopsy was performed.
Therefore, Dr. Smith intends to present all of these issues with respect to standard of care and medical legal causation to an administrative law judge and we look forward to having our day in court.
Vance R. Dawson
Rissman, Barrett, Hurt, Donahue & McLain
Orlando