STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2142

)

MURRAY JOSEPH COHEN, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Fort Lauderdale, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on July 16, 1981. The parties were represented by counsel:

APPEARANCES

For Petitioner: Joseph W. Lawrence, II, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Jonathan P. Lynn, Esquire

2400 One Biscayne Tower Miami, Florida 33131

By amended administrative complaint dated November 12, 1980, petitioner alleged that respondent, in January of 1979, "renamed his medical office 'The Center for Cosmetic Surgery' [and] began advertising regularly in local newspapers"; that the "ads stated that the following procedures were performed: blephyarcolasty [sic] (eyelid surgery), rhytidectomy (upper and lower facelifts)

, dermabrasion (for acne and trauma scar tissue) chemical peel (for leathery, fine wrinkled skin) , mammoplasty (breast enlargement, reduction, lifting, and nipplo correction) otoplasty (for protruding ears) , mentoplasty (chin enlargement or reduction) . . . [and] stated that 'There are no hospital or anesthesia charges' and advised the reader to'. . call for a free consultation with our medical director. He's an experienced, licensed Medical Doctor (M.D.)'"; that the advertised "medical director" was respondent; that the "ads also stated that

by using a variety of modern techniques --such as blepharoplasty (eyelid surgery) --The Center for Cosmetic Surgery can restore a cheerful, youthful appearance to your eyes. We put the sparkle

back, and the all-inclusive cost

is much loss than you might expect;

that respondent "attempted to perform all of the advertised operations except otoplasty and mentoplasty" between January and April 18, 1979, even though "the only special training that Dr. Cohen had received in the area of cosmetic surgery was seventy-eight hours of postgraduate training"; all in violation of Section 458.1201(1)(m), Florida Statutes (1978), and Section 458.331(1)(t), Florida Statutes (1979). In count two, the administrative complaint alleges that the same conduct violated Section 458.1201(1)(h), Florida Statutes (1978), and 458.331(1)(1), Florida Statutes (1979). In count three the administrative complaint alleges that respondent's office "was not equipped for and did not have the necessary personnel to properly handle situations where complications occur or where additional surgery might be necessary on an emergency basis" and that "Dr. Cohen did not have surgical privileges in the area of cosmetic surgery at a nearby hospital"; all in violation of Section 458.1201(1)(m) , Florida Statutes (1978), and Section 458.331(1)(t) Florida Statutes (1979).

Finally, count four of the administrative complaint alleges that respondent began a face-lift on Louise Stackhouse (who came to him after reading his newspaper advertisement) on February 22, 1979, at 1:30 p.m.; that Mrs.

Stackhouse regained consciousness before respondent had completed the procedure and requested additional anesthesia; that no additional anesthesia was given; that "blood began to squirt from [her] neck"; that she requested an ambulance; that she was hospitalized under respondent's care from February 22 to February 27, 1979; that she continued to bleed "from the face and neck" after discharge and "obtained the services of another physician on March 1, 1979" who did further surgery and discovered "bilateral hematomas under the facial flaps and a complete paralysis of the frontal branch of the facial nerve" "as a result of the procedures performed by Dr. Cohen"; that the second physician evacuated approximately 250 cc of old blood" and discovered that "Dr. Cohen's . . . undermining . . . was inadequate to provide for redraping of the skin for a lasting effect"; and that Dr. Cohen's dissection of Mrs. Stackhose's face "was very irregular in . . . depth"; all in violation of Section 458.1201(1)(m) , Florida Statutes (1978), and Section 458.331(1)(t), Florida Statutes (1979).

FINDINGS OF FACT

1. In 1962, respondent Cohen received an M.D. degree from the University of Paris, France. He then did a year of internship at the Nassau County Hospital of Long Island, rotating through medicine, surgery, psychiatry, and pediatrics. After internship, Dr. Cohen spent two years at the same hospital as a resident in internal medicine. The following year he spent as chief medical resident in a V.A. Hospital in Coral Gables. At the end of that year, in June of 1965, he was drafted into the U.S. Navy. After boot camp, Lt. Cohen was stationed in Washington, D. C., as head of the department of internal medicine at an outpatient dispensary on Connecticut Avenue. Then he spent approximately eleven months at a hospital in Rachgia, Vietnam, where he did extensive surgery of a "battle field oriented type." (R. 263.)

   
   

2. Upon his return to civilian life, Dr. Cohen entered practice with Drs. Wilner, Fleischner, and Krestow in North Miami Beach, specializing in internal medicine. He left after one year and began practicing in association with Dr. Getz. Four-and-one-half years later he opened his own office. He has been licensed to practice medicine and surgery in the State of Florida since January 24, 1966. Petitioner's Exhibit No. 1. Dr. Cohen is "board eligible" in internal medicine but has repeatedly failed the examination required for certification.

3. Shortly after being sued for malpractice, respondent became dissatisfied with his medical practice and began considering cosmetic surgery as an alternative. In June of 1978, respondent enrolled in a ten-day course on cosmetic surgery at Mt. Sinai Hospital in New York. There were numerous lectures, . . . [a] cadaver lab, . . [and] audiovisual presentation of all surgeries." (R. 266.) Respondent learned something about blepharoplasty, otoplasty, rhinoplasty, face-lifting, and mentoplasty in this course.

   
   

4. He spoke to a physician on the faculty of the University of Miami who advised him "that it would take probably a year or two of general surgery, [and] three or four years of ENT surgery" (R.267) to prepare for training in cosmetic surgery. A Dr. Reiss suggested to respondent that five years of general surgery and three years of plastic surgery would be the appropriate prerequisites for a residence in cosmetic surgery. Respondent was 42 or 43 years old at the time and "did not feel he could afford that amount of Lime." (R. 136.) Instead of seeking formal training, he read "journals and textbooks in the area of cosmetic surgery" (R. 269) and observed cosmetic surgery "not telling them what my interest was. I thought that basically I would be treated as a heretic." (R. 269.)

   
   

5. In or about January of 1979, Dr. Cohen retained the Lowenthal Group, an advertising agency, to help him obtain patients for a practice in cosmetic surgery. He renamed his office "The Center for Cosmetic Surgery" and caused certain newspapers to publish the following advertisement:

   
   

6. At the time this advertisement ran, Dr. Cohen had performed some of the advertised procedures on cadavers but had not performed any of them on living persons.

   
   

7. On February 15, 1979, Louise Stackhouse appeared at Dr. Cohen's office in response to one of his advertisements. Mrs. Stackhouse, then 57 years old, had been recently widowed and felt she needed cosmetic surgery to improve her chances of finding employment, but Dr. Cohen or his employee made a note at the time that she seemed "hesitant." Dr. Cohen offered to perform a face-lift for

$1,500, and an upper and lower blepharoplasty for an additional $900. (These fees are significantly less than the going rate in Broward County, where respondent's office was located.) He explained to Mrs. Stackhouse that "complications of the surgery could involve swelling, ecchymosis, hematoma, pain and discomfort . [and reversible] sensory loss." Petitioner's Exhibit No. 4, p.

312. When she told him there was nobody to see after her at home, Dr. Cohen arranged for a nursing home bed to be available after her surgery. He performed a pre-operative physical examination, including certain tests. Her blood pressure was 140 over 80.

1. Mrs. Stackhouse told respondent on February 15, 1979, that she did not like needles and that she wanted general anesthesia. Dr. Cohen answered that he only used local anesthesia in his practice. On the same date, she executed a form written consent for "a surgical operation known as FACE LIFT, UPPER AND LOWER BLEPHAROPLASTY," signed a form authorization for the taking and publication of photographs, and paid $50 toward Dr. Cohen's fee.

   
   

2. Mrs. Stackhouse returned on February 22, 1979, for the surgical procedures scheduled the week before. The fourth attempt to insert an intravenous catheter was successful, but this procedure upset Mrs. Stackhouse. At 1:20 p.m., she received 50 mg. of Vistaril and two milligrams of Stadol. Four minutes later her blood pressure was 154 over 94. By 1:44 p.m. , it had

   risen to 160 over 100. She received 2.5 mg. of Valium, 2 cc. of Ketamine, and

   1 cc. of one percent Xylocaine solution at 2:14.

   
   

3. In retrospect, Dr. Cohen who, according to his own testimony, "never had any formal training in anesthesia," Petitioner's Exhibit No. 4, p. 40, believes that Mrs. Stackhouse's agitation interfered with the efficiency of the "twilight anesthesia" he caused to be administered to her on February 22, 1979. At the time, `however, he did not anticipate any such interference.

   
   

4. At 2:25, Dr. Cohen began cutting. He was assisted by Elaine Levian, his receptionist, who doubled as a surgical nurse, notwithstanding her lack of formal training. Also present was Gouda Weinstein, a laboratory technician, who had not scrubbed or dressed in sterile clothing. By his own estimate, Louise Stackhouse was the fourth or fifth person to have the benefits of Dr. Cohen's face-lifting skills.

   
   

5. A face-lift or rhytidectomy involves an "incision emanating from the temple to the ear, in and down, in front of the ear, and then around the lobule of the ear, the back part of the ear . [thence] onto the scalp or neck region." Petitioner's Exhibit No. 7, pp. 11-12. After the "boundary" is determined, the surgeon dissects or "undermines" the skin working inward from the initial incision toward the nose, taking "care to preserve the vital structures, such as nerves to the facial muscles and great vessels to the neck and sensory nerves to the ear." Petitioner's Exhibit No. 7, p. 12. Sometimes a surgeon dissects the layer of muscle below the skin rather-than the skin itself. Once a flap of tissue has been undermined, it is stretched and rejoined to the flesh underneath by two sets of sutures along the original incision. Excess skin is removed and discarded.

   
   

6. Dr. Cohen bad "lifted" only the right band side of Mrs. Stackhouse's face, when she awoke between three in the afternoon and quarter of. At 2:51, she was given the equivalent of 5 milligrams of Valium. She asked for ether and repeated "no more needles" over and over again, before slipping back into unconsciousness. in these circumstances, Dr. Cohen decided to forego blepharoplasty (he eventually returned an appropriate portion of the fee) , but pressed ahead with the left hand side of Mrs. Stackhouse's face, in pursuit of symmetry. In addition, he made an incision just underneath Mrs. Stackhouse's chin, at some point in the afternoon. He had removed the dressing and reopened the incision to take another look at her chin, when Mrs. Stackhouse awoke again, screaming. The third time she regained consciousness, at about half past six, Mrs. Stackhouse noticed that there was bleeding on the left hand side of her face. She refused Dr. Cohen's offer to reopen the cheek flaps to look for bleeders and demanded an ambulance. Dr. Cohen, who had accomplished everything he set out to do "except the eyes," Petitioner's Exhibit No. 4, p. 46, caused an ambulance to be summoned and met Mrs. Stackhouse at University Community Hospital in Tamarac, Florida, where he admitted her as his patient between 7:00 and 9:00 p.m., on February 22, 1979.

   
   

7. At his direction, she received a transfusion of two units of whole blood. Hemoglobin and hematocrit laboratory test results suggested, however, that blood loss had been minimal. Dr. Cohen had no surgical privileges at University Community (or any other) Hospital, and did not make any surgical attempt at removing the blood clotted underneath Mrs. Stackhouse's face. He did try placing a Pratt Jackson drain through the left temporal flap, but this was ineffective. Three physicians whom Dr. Cohen approached for help while Mrs. Stackhouse was hospitalized turned him down. Dr. Cohen felt the hematoma should have been evaluated promptly, but he was stymied by his lack of surgical

   privileges and his inability to enlist the assistance of a physician who had such privileges. He had no standing arrangement with any other physician for assistance in dealing with any complication.

   
   

8. After earlier refusing discharge, Mrs. Stackhouse left the hospital on February 27, 1979, the swelling in her still-bulging cheeks reduced by three- fifths. Blood continued to ooze out through her incisions as the hematoma gradually liquified. Dr. Cohen saw Louise Stackhouse in his office on February 28, 1979. She told Dr. Cohen she wanted another doctor, and he made an appointment for her with a colleague, which she did not keep.

   
   

9. On March 1, 1979, Gary Torian, a plastic surgeon, examined Mrs. Stackhouse in a hospital emergency room. He noted "paralysis of the right frontal branch facial nerve and anesthesia of the right [or, perhaps, the left] greater auricular nerve, (R. 131) apparent complications of Dr. Cohen's surgery that Dr. Cohen had overlooked. These problems had corrected themselves by the time of the hearing. In addition to the facial hematoma, Dr. Torian observed "a submental deformity," i.e., a depression under the chin attributable to the "remov[al of] too much fat from the midline." (R. 133.) Skin behind one ear was dead or nearly so. After consultation with another plastic surgeon, Dr. Torian caused general anesthesia to be administered to Mrs. Stackhouse, reopened her incisions, irrigated, evacuated 250 to 300 cc. of gelatinous blood, cauterized bleeders (possibly attributable to Torian's surgery) , and resutured. Dr. Torian noted that Dr. Cohen's dissection was less extensive than -is standard for plastic surgeons. The thickness of the flaps varied considerably; Dr. Cohen had established no plane of dissection. On March 22, 1979, Dr. Torian referred Mrs. Stackhouse to a psychiatrist.

   
   

10. Four of Dr. Cohen's patients testified at the hearing that they were satisfied with his work. One woman testified that he improved upon cosmetic surgery another physician has performed. All testified that they had read advertisements like Petitioner's Exhibit No. 2, and each thought Dr. Cohen to be an experienced cosmetic surgeon. In giving this impression, Dr. Cohen's advertisement, Petitioner's Exhibit No. 2, was clearly misleading and deceptive, even if literally true. By naming his office "The Center for Cosmetic Surgery" when he himself was the only licensed medical employee, Dr. Cohen employed a trick in his practice. In claiming that "The Center for Cosmetic Surgery can restore a cheerful, youthful appearance to [anybody's] eyes," the advertisement was false, misleading, and deceptive. No plastic surgeon (much less an internist) can guarantee any such thing to a patient, because no procedure is invariably successful.

    
    

11. Risks of cosmetic procedures like those advertised by Dr. Cohen include death, massive bleeding, and damage to nerves. Hematomas, usually minor ones, are a complication in three to seven percent of face-lifts. Until he left off cosmetic surgery in May of 1980 (upon the recommendation of the Dade County Medical Association) Dr. Cohen had performed all the procedures he had advertised except mammoplasty and mentoplasty. He worked on only one patient's ears, but performed other procedures numerous times, always assisted by his receptionist. Because he lacked surgical privileges at a nearby hospital (and any arrangement with surgeons who did), because he did not have a medically trained, sterile assistant during surgery, and because he lacked proper training and experience, Dr. Cohen failed to observe the standards of acceptable and prevailing medical practice in the area of his professional expertise.

    CONCLUSIONS OF LAW

    
    

12. Under the law in force at all pertinent times before July 1, 1979, see Chapter 79-302, Section 9, Laws of Florida (1979), petitioner was authorized "to discipline a physician licensed under . . [Florida] law who has been adjudged unqualified or guilty of":

    
    

    (b) Making misleading, deceptive, untrue, or fraudulent representations in

    the practice of medicine; employing a trick or scheme in the practice of medicine; prac- ticing fraud or deceit in obtaining a li- cense to practice medicine; or making a false or deceptive annual registration with the board.

    (m) Being guilty of immoral or unpro- fessional conduct, incompetence, negligence, or willful misconduct. Unprofessional con- duct shall include any departure from, or the failure to conform to, the standards of acceptable and prevailing medical practice in his area of expertise as determined by the board, in which proceeding actual injury to a patient need not be established when the same is committed in the course of his practice, whether committed within or with-

    out this state. Section 459.1201(1) , Florida Statutes (1978 Supp.).

    
    

    Discipline could take any of the following forms:

    
    

    1. Administer a public or private reprimand;

    2. Suspend or limit or restrict his license to practice medicine for a period of up to 5 years;

    3. Revoke indefinitely his license to practice medicine;

    4. Require him to submit to the care, counseling, or treatment of physicians des- ignated by the board;

    5. Require him to participate in a program of continuing education prescribed by the board;

    6. Require him to practice under the direction of a physician in a public insti- tution, a public or private health-care program, or private practice for a period of time specified by the board. Section

       458.1201(3)(a) , Florida Statutes (1978 Supp.).

       
       

       At all times since July 1, 1979, Section 458.331(1), Florida Statutes (1979) , has authorized revocation or suspension of a license, restriction of practice, imposition of an administrative fine not to exceed $1,000 for each count or separate offense and issuance of a reprimand and probation, Section 458.331(2), Florida Statutes (1979) , of the following is established:

       (1) Making deceptive, untrue, or fraud- ulent 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 prevailing standards of treatment in the medical community.

       (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 simi- lar physician as being acceptable under similar conditions and circumstances. The board shall give great weight to the provi- sions of s. 768.45 when enforcing this paragraph. Section 458.331(1), Florida Statutes (1979).

       
       

       Among the provisions of Section 768.45, Florida Statutes (1979) , to which Section 458.331(1)(t) , Florida Statutes (1979), refers are the following:

       
       

       The accepted standard of care for a given health care provider shall be that level of care, skill, and treatment which is recog- nized by a reasonably prudent similar health care provider as being acceptable under sim- ilar conditions and circumstances. Section 768.45(1), Florida Statutes (1979).

       
       

       If the health care provider . . . holds himself out as a specialist, a "similar heath care provider" is one who:

       1. Is trained and experienced in the same specialty; and

       2. Is certified by the appropriate American board in the same specialty. Sec- tion 768.45(2), Florida Statutes (1979).

       
       

       By touting himself as the experienced medical director of a "Center for Cosmetic Surgery," respondent held himself out as a specialist, within the meaning of Section 768.45, Florida Statutes (1979).

       
       

13. The evidence showed that respondent was guilty of gross malpractice in his treatment of Louise Stackhouse, in violation of Section 458.331(1)(t), Florida Statutes (1979). By failing to use general anesthesia and beginning surgery in his office without adequate assistance and without any prospect of the use of a hospital surgical suite in the event of complications, respondent put his patient's health unnecessarily at risk and fell dramatically below the standards observed by practitioners of the medical specialty that Dr. Cohen tried to teach himself by trial and error on an unsuspecting public. The same reckless actions amounted to unprofessional conduct and willful misconduct within the meaning of Section 458.1201(1)(m), Florida Statutes (1978 Supp.).

    
    

14. By naming his office "The Center for Cosmetic Surgery," when the only licensed medical person in the office was himself and by calling himself the "medical director" of this "Center" when his only formal training in cosmetic surgery took on the order of ten days, and by promising a youthful, cheerful

    appearance to one and all without fail, and by claiming "no hospital or anesthesia charges," Dr. Cohen violated the provisions of Section 458.1201(1)

    
    

15. Florida Statutes (1978 Supp.) , and Section 458.331(1)(1), Florida Statutes (1979).

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

1. That petitioner suspend respondent's license for six months.

   
   

2. That petitioner thereafter revoke respondent's license unless respondent shall furnish certification of completion of 200 hours of continuing medical education during the suspension of his license.

   
   

3. That petitioner impose a fine of four thousand dollars ($4,000) on respondent.

   
   

4. That petitioner restrict respondent's license to practice so that he can never lawfully practice surgery in Florida.

DONE AND ENTERED this 9th day of September, 1981, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1981.

COPIES FURNISHED:

Joseph W. Lawrence, II, Esquire

130 North Monroe Street Tallahassee, Florida 32301

Jonathan P. Lynn, Esquire 2400 One Biscayne Tower Miami, Florida 33131

Nancy Kelley Wittenberg, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

BEFORE THE BOARD OF MEDICAL EXAMINERS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. DOAH CASE NO. 80-2142

MURRAY JOSEPH COHEN, M.D.,

License Number: 12031,

Respondent.

/

FINAL ORDER OF

THE BOARD OF MEDICAL EXAMINERS

This matter came for final action by the Board of Medical Examiners pursuant to Section 120.57(1)(b)9., at a public meeting on December 4, 1981, in St. Petersburg Beach, Florida, for review of the recommended order of the hearing officer entered herein, and the exceptions filed by the Respondent, Murray Joseph Cohen, M.D. A transcript of the proceedings is available, if necessary.

FINDINGS OF FACT

1. Based upon a review of the complete record, the Respondent's exceptions to the findings of fact contained in Paragraphs one (1) through five (5) of the Respondent's Written Exceptions to Recommended Order are rejected by this Board, Inasmuch as the hearing officer's findings of fact are supported by competent substantial evidence.

   
   

2. Following a review of the complete record, the Board adopts the findings of fact of the hearing officer and incorporates them herein by reference.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Respondent's exceptions to the conclusions of law contained in Paragraphs five (5) through eight (8) of Respondent's Written Exceptions to Recommended Order are found to be without merit and are rejected.

   
   

4. Following a revie' of the complete record the Board of Medical Examiners hereby adopts and incorporates by reference the conclusions of law of the hearing officer.

5. Respondent's exceptions to the recommended penalty contained in Paragraphs nine (9) through fourteen (14) of Respondent's Written Exceptions to Recommended Penalty are found to be without merit and are rejected. Accordingly, based upon a review of the complete record, the findings of fact and conclusions of law, IT IS THEREFORE

ORDERED AND ADJUDGED that the license to practice medicine in the State of Florida of Murray Joseph Cohen, M.D., be and hereby is revoked, said revocation to be stayed and Respondent's license be suspended for a period of two (2) years for each count charged in the administrative complaint, each count to run concurrent with each other, and that Respondent pay a one thousand dollar ($1,000.00) fine per count. During the suspension period, Respondent shall demonstrate successful completion of fifty (50) hours of Category I, A.M.A. approved continuing medical education annually, and shall make semiannual appearances before the Board. After the period of suspension the Board shall consider reinstatement with appropriate terms and conditions at that time.

Respondent orally agreed to waive confidentiality with regard to the semiannual investigative reports which will be compiled concerning Respondent's compliance with the terms and conditions outlined above and the statutes and rules regulating the practice of medicine. Said waiver of confidentiality with regard to the aforementioned reports as to the Board only, thus permitting the Board to review same during Respondent's suspension.

DONE AND ORDERED this 29th day of December, 1981.

BOARD OF MEDICAL EXAMINERS

RICHARD D. CONARD, M.D.

Vice Chairman

cc: All Counsel of Record.

Murray Joseph Cohen, M.D.

Docket for Case No: 80-002142

Orders for Case No: 80-002142