STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-2594

) MANUEL J. RICO-PEREZ, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James D. Bradwell, held a public hearing in this case on December 1, 1986 in Miami, Florida. Pursuant to leave, the parties were allowed through March 18, 1987, to submit proposed memoranda supportive of their respective positions. The parties waived the time requirement that a Recommended Order be entered pursuant to the applicable statutory and rule criteria.

The parties' proposed Recommended Orders were considered by the undersigned in preparation of this Recommended Order. Proposed findings which are not incorporated herein are the subject of specific rulings in an Appendix to the Recommended Order herein.

APPEARANCES

For Petitioner: Joel S. Fass, Esquire

Colodny, Fass & Talenfeld, P.A. 626 Northeast 124th Street North Miami, Florida 33161

For Respondent: Paul Watson Lambert, Esquire

Taylor, Brion, Buker and Greene, P.A. Post Office Box 11189

Tallahassee, Florida 32302 ISSUE PRESENTED

The issue presented for decision herein is whether or not the Respondent, based on conduct set forth in an Administrative Complaint filed herein dated June 20, 1986, made deceptive, untrue or fraudulent representations in the practice of medicine or employed a trick or scheme in the practice of medicine which failed to conform to the generally prevailing standards of treatment in the medical community; failed to keep written medical records justifying the course of treatment of the patients involved herein including, but not limited to patient histories, examination and test results; exercised influence on the patient or client in such a manner as to exploit the patient or client for

financial gain and thereby engaged in 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.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings.

1. During times material, Respondent was a licensed physician in Florida and has been issued license number ME0034265.

   
   

2. On March 5, 1985, Respondent treated a patient, ME, a 13 year old child, who presented complaining of headaches.

   
   

3. Dr. John D. Handwerker, M.D. is a Department of Professional Regulation consultant who was received as an expert herein in the practice of medicine.

   Dr. Handwerker reviewed patient ME's medical records for the dates March 5 and 7, 1985.

   
   

4. Based on a review of ME's medical records, there is no indication that Respondent performed a physical examination on ME on March 5, 1985. In his treatment of patient ME, Respondent did not indicate on ME's medical records any diagnosis other than the notation that the patient complained of a headache. Respecting ME's headaches, there was no notice in ME's records as to the duration or the time of onset, or what relieved the headache; the occasion or any other precipitating factors.

   
   

5. Respondent failed to note in ME's records his observation of her appearance; the responses he received based on questioning ME's mother; the results of certain system examinations that he administered, all of which were negative; no mention of the fact that patient ME fainted in school; failed to note that he heard a heart murmur when he conducted a stethoscope exam on March

   5 and was unable to determine, based on his failure to record in ME's medical notes, whether he detected EVC's on March 5 or March 7, 1985.

   
   

6. On March 7, Respondent examined patient ME for 15 minutes but failed to note in her medical records the results of the examination. Specifically, Respondent failed to note that he performed a physical examination of ME's thyroid gland; that there was a sonogram ordered of ME's liver without any justification in the patient's record which tended to show that such a procedure was indicated; the patient's notes indicate that a diagnosis was made of ME's "fatty" liver despite the absence of any written justification therefor since ME's liver appeared normal based on a sonogram, and failed to note in ME's records that she was a smoker although this was contrary to her previous response when Respondent performed a pulmonary exam.

   
   

7. Respondent performed a PT test and a PTT test on patient ME because she was increasing her intake of aspirin. During his physical examination of ME, Respondent found hematomas throughout her body and he failed to report these findings in her medical records.

   
   

8. Respondent also performed an x-ray KUB exam because ME's abdomen was hard and her liver was protruding. ME's medical records do not support Respondent's claim that ME's liver was protruding.

9. Respondent thinks that he referred one of the two patients involved herein, patient ME and patient MM, to a specialist but he could not remember which patient he referred (to a specialist) and his records are not helpful based on the omissions noted herein above.

   
   

10. Based on his review of the history and medical notes for patient ME, Dr. Handwerker gave his expert opinion that the tests that Respondent ordered for patient ME and which he subsequently submitted to the insurance company for payment, were not indicated. In Dr. Handwerker's opinion, Respondent thereby failed to practice medicine, with regard to his treatment of patient ME on March

    5 and March 7, 1985, with that level of care, skill and treatment which is recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances. He therefore concluded that in the absence of any justification in ME's records for such tests, Respondent therefore engaged in a fraudulent scheme to exploit ME financially. It is so concluded by the undersigned.

    
    

11. On or about December 4, 1984, Respondent treated a patient, MM, then a

    36 year old female, who complained of feeling "rundown".

    
    

12. Dr. Jerry Stolzenberg, director of radiology at Miami Heart Institute, is a consultant with Petitioner and was received as an medical expert in these proceedings. Dr. Stolzenberg reviewed the medical records that Respondent provided for patient MM on January 23, 1986.

    
    

13. Patient MM's medical records show that her chief complaints were chest pains, shortness of breath and exhaustion.

    
    

14. Respecting the complaints of chest pain and shortness of breath, the records do not indicate the type of chest pains; whether they occurred during the day or night time; whether they occurred during exercise; whether the shortness of breath occurred during exercise or during periods of emotional stress; the duration or whether this condition was a new occurrence.

    
    

15. Patient MM's medical records do not indicate that Respondent conducted any physical examination of her. (TR 61).

    
    

16. Respondent acknowledged (1) that he failed to complete the physical examination section of patient MM's medical records and (2) that there would be no way to independently document the findings of his physical examination by reviewing his medical records if he was not present to do so. (TR-236).

    
    

17. Respecting patient MM's complaint of feeling tired, there was no indication of any physical examination of the thyroid gland and no pertinent history relating to her complaints of feeling tired although Respondent administered a thyroid function test and billed her insurance company for acute thyroiditis.

    
    

18. Patient MM was given ultrasound of the thyroid and there was no supporting documentation that Respondent felt a nodule or mass. Although patient MM's liver profile was normal, Respondent administered a ultrasound of the liver.

    
    

19. The diagnosis for MM which Respondent submitted to her insurance

    company indicates she suffered from allergy reaction, arthritis, thyroiditis, liver disease, urinary tract infection and pharyngitis. The medical records and history for patient MM do not contain adequate supporting documentation for this diagnosis. (TR-31, 32).

    
    

20. To substantiate this diagnosis, Respondent ruled out liver disease because of the chest pains; thyroiditis was ruled out because of weight problems; urinary tract infection was ruled out because patient MM told him there was "lots of urinary tract infection in her history" and he ruled out renal disorder because MM was not drinking water and she had a rash all over her body.

    
    

21. Respondent conceded that there was nothing in patient MM's medical records upon which he can document his statement that MM had a lot of urinary tract infections in her history. Respondent's medical history of MM's physical examination does not show any reference to the urinary infections.

    
    

22. Respondent found no indication of patient MM having urinary tract infection yet he ordered a test to rule out urinary tract infection because she had back pain which in his opinion could also indicate urinary tract infection.

    
    

23. Respondent ordered a rheumatoid profile because MM experienced pain to the extremities and back although his medical history does not indicate that there was pain in her extremities or cervical spine.

    
    

24. Respondent treated MM's back pain by "reassurance" stating that she manifested depression.

    
    

25. An examination of MM's medical records reveal no basis for the lipid and renal profiles administered to MM. Likewise, the physical examination and clinical findings do not indicate a basis for the throat culture, urinalysis and urine cultures which were administered to MM.

    
    

26. The medical notes for patient MM show no basis for the pharyngitis diagnosis inasmuch as MM did not complain of sore throat. There was no basis for the PTT and the PT tests simply because Respondent found hematomas throughout MM's body. Respondent conceded that any new medical practitioner examining patient MM's medical file would question why the PT and PTT tests were ordered based on the lack of documentation in her medical files. The hematomas are merely physical findings which would not justify ordering the PT and PTT tests.

    
    

27. Additionally, the medical records for patient MM reveal no basis for the diagnosis of allergic reactions or arthritis; rashes and allergies or allergic histories.

    
    

28. Based upon the history and physical examination, Dr. Stolzenberg opined that there was no justification for any of the testing ordered by Respondent for patient MM except the EKG and the chest x-ray. Based thereon, and Respondent's failure to keep adequate written medical records to justify the course of his treatment, Dr. Stolzenberg opined and concluded that Respondent failed to practice medicine with a level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. It is so found by the undersigned.

    CONCLUSIONS OF LAW

    
    

29. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

    
    

30. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

31. The authority of the Petitioner is derived from Chapter 458, Florida Statutes.

    
    

32. Section 458.331(2), Florida Statutes authorizes the Petitioner to suspend a license, revoke a license, impose an administrative fine or place a licensee on probation or issue a reprimand.

    
    

33. Competent and substantial evidence was offered herein to establish that Respondent, in his treatment of patients MM and ME as noted hereinabove, failed to keep written medical records justifying the course of treatment of the patients, including, but not limited to, patient histories, examinations and test results, as required pursuant to Section 458.331(1)(n), Florida Statutes.

    
    

34. Competent and substantial evidence was offered herein to establish that Respondent, in his medical treatment for patients MM and ME, engaged in conduct constituting a 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, all within the purview of Section 458.331(1)(t), Florida Statues. Respondent, by ordering tests to be conducted on patients MM and ME when the medical histories taken by him failed to indicate or substantiate any basis for such tests, amounts to the employment of a scheme and the practice of medicine which fails to conform to the generally prevailing standards of treatment in the medical community as testified to by experts herein. As such, Respondent engaged in proscribed conduct within the purview of Section 458.33l(1)(1), Florida Statutes.

    
    

35. Based on the foregoing and by Respondent's submission of invoices for tests which he ordered and which were not indicated based on the patient histories and medical records for patients MM and ME, Respondent thereby exercised influence over patients MM and ME in such a manner as to exploit the patients for his (Respondent's) financial gain within the purview of Section 458.331(1)(o), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED:

That Respondent's physician license number ME0034265 be suspended for a period of six (6) months with the further recommendation that five (5) months of that suspension be suspended provided Respondent enroll in, and successfully complete, a course dealing with the proper procedures for recording and maintaining medical records justifying, inter alia, the course of treatment of patients including patient histories, examinations and test results.

RECOMMENDED this 2nd day of June, 1987, in Tallahassee, Florida.

JAMES E. BRADWELL

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 2nd day of June, 1987.

COPIES FURNISHED:

Joel S. Fass, Esquire

Colodny, Fass & Talenfeld, P.A. 626 N. E. 124 Street

North Miami, Florida 33161

Paul Watson Lambert, Esquire Taylor, Brion, Buker & Greene, P.A. Post Office Box 11189

Tallahassee, Florida 32302

Dorothy Faircloth Executive Director Department of Professional

Regulation, Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-002594

Orders for Case No: 86-002594