STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAMILLE DENIS, )

)

Petitioner, )

)

vs. ) CASE NO. 83-061

)

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

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing on May 17, 1983, in Miami, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer,

1. T. Carpenter. The parties were represented by:

   
   

   APPEARANCES

   
   

   For Petitioner: Charlie L. Adams, Esquire

   Department of Professional Regulation

   130 North Monroe Street Tallahassee, Florida 32301

   
   

   For Respondent: Frances Barrera, Esquire

   1501 Northwest 14th Street Miami, Florida 33125

   
   

   This case arose on Petitioner's Administrative Complaint charging Respondent with gross over-utilization of physiotherapy in the treatment of a minor injury, in violation of Section 458.331, Florida Statutes (1981)(F.S.). Petitioner submitted proposed findings of fact which have been incorporated herein to the extent they are relevant and consistent with the evidence.

   
   

   FINDINGS OF FACT

   
   

   1. Respondent is licensed to practice medicine and surgery in Florida under license number 27358.

      
      

   2. Between February 4 and August 24, 1981, Respondent treated Mr. Joseph Fleuristal for minor back and neck injuries received in an automobile accident. Initially,, Fleuristal had x-rays taken by a radiologist who diagnosed only spina bifida occulta, a condition unrelated to the accident.

      
      

   3. Respondent's treatment plan for Fleuristal involved a muscle relaxant (Robaxin), pain medicine (Tylenol III), and heat applications. After approximately one month, Respondent discharged Fleuristal from treatment.

   4. Fleuristal continued to visit Respondent's office complaining of pain and requesting further heat treatments. Respondent resumed the heat treatments even though he had concluded they were not necessary and had advised Fleuristal of this determination. Ultimately, Respondent administered 100 such treatments before again discharging Fleuristal in August, 1981.

      
      

   5. Respondent's charges for treating Fleuristal amounted to $3,835. He sent bills to Fleuristal's attorney who submitted them to the company which insured two of the parties to the automobile accident. This company believed the claim represented excessive treatment and filed a complaint with Petitioner.

      
      

   6. The testimony of Petitioner's expert witness established that heat treatments, after the first month, constituted gross over-utilization of physiotherapy in the treatment of a minor injury. Although there was disagreement as to the wisdom of the initial treatment plan, it was not shown to have been improper. Petitioner's evidence established that Respondent should have referred the patient to an orthopedic specialist when his initial treatment was not successful.

      
      

   7. Respondent concedes he administered excessive heat treatments but saw no harm in continuing the treatments since they seemed to give Fleuristal some relief. He did not refer Fleuristal to an orthopedic specialist because, in his view, the patient could not afford the cost.

      
      

      CONCLUSIONS OF LAW

      
      

   8. Section 458.331, F.S. provides in part:

      
      

      1. The following acts shall con- stitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

         1. Making deceptive, untrue, or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine when such scheme or trick fails to conform to the generally prevailing standards of treatment in the medical community.

            (o) Exercising influence on the patient or client in such a manner as to exploit the patient or client for financial gain of the licensee or of a third party which shall include, but not be limited to, the promoting or selling of services, goods, appliances, or drugs and

            the promoting or advertising on any prescription form of a com- munity pharmacy unless the form

            shall also state "This prescription may be filled at any pharmacy of your choice."

            (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and

            treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The board shall give great weight to the provisions of s. 768.45 when enforcing this paragraph.

            
            

   9. Respondent is charged with violating the above provisions through his administration of excessive heat treatments to the patient, Joseph Fleuristal. It was not shown that Respondent conspired with Fleuristal or his attorney to establish a false basis for a personal injury claim. Rather, the evidence indicated that heat treatments beyond the first month were administered primarily to placate this patient. Respondent did not, therefore, make deceptive representations or exercise his influence for financial gain as prohibited by Subsections (1) and (o), quoted above. However, his repeated use of a treatment which he recognized as unnecessary is repeated malpractice as condemned in Subsection (t), quoted above. It was not shown that such treatment harmed the patient (or any third party, since Fleuristal's attorney made the decision to submit these medical bills to the insurer)

      
      

   10. Respondent should have, but did not, refer the patient to an orthopedic specialist. His stated reason for failing to do so (cost) is not persuasive in view of the several thousand dollars he billed the patient for unnecessary treatments. This failure to refer was unacceptable in these circumstances and is a violation of Subsection (t), quoted above, which requires treatment at a reasonably prudent level.

RECOMMENDATION

In consideration of the foregoing, it is

RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Subsection 458.331(1)(t), F.S. It is further RECOMMENDED that Petitioner impose an administrative fine of $1,500 and issue a reprimand, as authorized by Subsection 458.331(2), F.S.

DONE and ENTERED this 30th day of June, 1983, in Tallahassee, Florida.

R. T. CARPENTER, 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 30th day of June, 1983.

COPIES FURNISHED:

Charlie L. Adams, Esquire Mr. Fred Roche

Department of Professional Secretary

Regulation Department of Professional

130 North Monroe Street Regulation Tallahassee, Florida 32301 130 North Monroe Street

Tallahassee, Florida 32301

Frances Barrera, Esquire

1501 Northwest 14th Street Ms. Dorothy Faircloth

Miami, Florida 33125 Executive Director

Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-000061

Orders for Case No: 83-000061