STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2914

)

MARIA I. ANDRAKOVICH, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing, in the above-styled matter was held on July 14, 1987, at West Palm Beach, Florida, before Joyous Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Michael J. Cohen, Esquire

517 Southwest First Avenue

Fort Lauderdale, Florida 33301

For Respondent: Maria I. Andrakovich, M.D.

6900 South Dixie Highway

West Palm Beach, Florida 33405 BACKGROUND AND PROCEDURAL MATTERS

On July 11, 1986, the Petitioner filed an Administrative Complaint against Respondent, Maria I. Andrakovich, M.D. The complaint alleged Respondent to be in violation of four Subsections of 458.331(1), Florida Statutes, by failing to properly supervise a physician's assistant and by failing to comply with rules or statutes relating to physician's assistants. Subsequently, Respondent completed an Election of Rights which denied the allegations of fact contained in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1) Florida Statutes. On or about August 4, 1986, the case was forwarded to the Division of Administrative Hearings for formal proceedings.

At the final hearing, Petitioner presented the testimony of one witness, Maria I. Andrakovich, M.D., and introduced ten exhibits which were admitted into evidence: Answers to the Requests for Admission; composite certification; deposition of Ehrlich; deposition of Seligman; deposition of Cohen; composite medical records; deposition of Maria I. Andrakovich dated April 3, 1985; deposition of Maria I. Andrakovich dated February 20, 1987; deposition of Conti; and deposition of Shapiro. Petitioner requested that judicial notice be taken of Chapter 31M-17 Florida Administrative Code; such notice was granted. The Respondent testified on her own behalf and presented two exhibits which were

admitted into evidence: a copy of her service agreement and a copy of a partial summary judgment.

The transcript in this cause was received and filed with the Division of Administrative Hearings on August 4, 1987.

After the hearing neither party filed a Proposed Recommended Order.

Accordingly, no ruling on proposed findings of fact is included.

ISSUE

The central issue in this case is whether the Respondent violated Chapter

458 Florida Statutes as alleged in the Administrative Complaint dated July 11, 1986; and, if so, what penalty should be imposed.

FINDINGS OF FACT

1. Based upon the testimony of the witness and the documentary evidence received at the hearing, I make the following findings of fact:

   
   

2. The Respondent, Maria I, Andrakovich, M.D., is a licensed physician in the State of Florida, having been issued license number MEOO2I436.

   
   

3. On or about May 1, 1983, Respondent entered into a Service agreement with "The Doctor's Office, Inc." wherein Dr. Andrakovich agreed to provide medical services for the patients at 330 South Dixie Highway, Lake Worth, Florida. Respondent's employment with "The Doctor's Office, Inc." ended in March, 1984.

   
   

4. On or about July 12, 1983, Respondent filed with the Board of Medical Examiners an Application for Certification for Physician's Assistant for Jean Eugene Raymond. On August 15, 1983, Mr. Raymond was certified to work under the supervision of Respondent pursuant to Chapter 458 Florida Statutes.

   
   

5. On November 22, 1983, Mr. Raymond filed his Biennial Physician's Assistant Certification and reported a change of office address to 1177 Hypo1uxo Road, Lantana, Florida. Respondent executed the affidavit for this certification before a notary public.

   
   

6. Respondent never worked at the Hypo1uxo, Road facility. Dr. Andrakovich remained at the prior office location which was approximately five miles from the Hypoluxo site.

   
   

7. Prior to his move to the Hypoluxo facility, Mr. Raymond would confer, in person, with Dr. Andrakovich regarding each patient. After moving to the Hypoluxo facility, Mr. Raymond would confer with Dr. Andrakovich by telephone. Respondent relied on Mr. Raymond's judgment that this telephonic system of conferring about patients complied with any legal requirements of their relationship. Respondent did not know the regulations which govern physician's assistants.

   
   

8. Many of the patients seen at the facilities on Hypoluxo and Dixie were elderly and suffered heart problems.

   
   

9. Respondent's schedule required her to see one patient every fifteen minutes. This patient scheduling rate later increased to one patient every ten minutes. It was difficult for Respondent to confer with Mr. Raymond by

   telephone and meet the schedule. Respondent assumed Mr. Raymond would confer with the physicians at the Hypoluxo facility. No specific arrangement was made to require physicians at Hypoluxo to supervise Mr. Raymond nor did any physician there assume responsibility for Mr. Raymond's activities.

   
   

10. During her employment with "The Doctor's Office, Inc." Respondent treated Norman Shapiro. Mr. Shapiro had a history of heart trouble, diabetes, and hypertension. During the fall of 1983, Mr. Shapiro had complained of increased pain which had resulted in Respondent doubling the strength of Mr. Shapiro's heart medication. Mr. Shapiro's medical record for this period suggested a deterioration in his heart condition.

    
    

11. On November 21, 1983, Norman Shapiro went to the Hypoluxo facility and was seen by Mr. Raymond. Mr. Shapiro complained that he was constantly having to take his heart medication by handful amounts. Mr. Raymond recommended no coffee, tea, chocolates or smoking and that the patient should elevate his head 4-6 inches for sleeping. The only additional medication suggested was Maalox. The treatment recommended by Mr. Raymond was consistent with the diagnosis of a hiatal hernia but was inappropriate given the patient's history of heart disease. The minimally acceptable care within the medical community where "The Doctors' Office" was located would have required the patient Shapiro to be hospitalized.

1. Mr. Raymond did not confer with Dr. Andrakovich regarding Mr. Shapiro's visit on November 21, 1983, until after the treatment had been recommended. Had Dr. Andrakovich seen Mr. Shapiro on that day, she would have put him in the hospital. Dr. Andrakovich believed Dr. Conti had treated Mr. Shapiro on November 21, 1983.

   
   

2. On November 21, 1983, the electrocardiogram (EKG) for Mr. Shapiro was within normal limits. Despite the EKG, Mr. Shapiro's symptoms were cardiac- related and had a significant potential for morbidity and mortality. In fact, Mr. Shapiro died on November 22, 1983.

1. Frank Colavecchio was president of the "The Doctor's Office Inc." and made all administrative decisions regarding the facilities on Dixie and Hypoluxo. Mr. Colavecchio administratively moved Mr. Raymond to the Hypoluxo office.

   
   

2. On March 15, 1984, Dr. Andrahovich terminated employment with the "The Doctor's Office, Inc". Respondent did not notify the Board of Medical Examiners of this change and at no time advised the Board that she would no longer be supervising Mr. Raymond.

   
   

3. It is inappropriate and contrary to standards of good medical practice for a physician's assistant to treat heart patients.

   
   

4. Dr. Andrakovich knew or should have known that Mr. Raymond was treating heart patients.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

6. The Board of Medical Examiners is empowered to revoke or suspend the license of, or otherwise discipline, any physician who violates any of the following provisions of Section 458.331(1) Florida Statutes:

   
   

   * * *

   1. Failing to perform any statutory or legal obligation placed upon a licensed physician.

      * * *

   2. Making or filing a report which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state of federal law, willfully impeding or obstructing such filing or inducing another person to do so. Such reports or records shall include only those which are signed in the capacity as a licensed physician.

      * * *

      (t) Gross or repeated malpractice or the failure to practice medicine with the 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 Section 768.45 when enforcing this paragraph. As used in this paragraph, "repeated malpractice" includes, but is not limited to, three or more claims for medical malpractice within the previous 5 year period resulting in indemnities being paid in excess of $10,000 each to the claimant in a judgment or settlement and which incidents involved negligent conduct by the physician. As used in this paragraph, "gross 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, shall not be construed so as to require more

      than one instance, event, or act.

      * * *

      (x) Violating any provision of this chapter, a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing

      of failing to comply with a lawfully issued subpoena of the department.

      
      

      The Petitioner has the burden to prove by clear and convincing evidence that the alleged violations of the above-cited provisions occurred.

      
      

7. Count One of the Administrative Complaint alleged the Respondent failed to supervise Jean Eugene Raymond in accordance with Section 458.347 Florida Statutes. This section provides, in part:

   
   

   1. PERFORMANCE BY PHYSICIAN'S ASSISTANT.

      Notwithstanding any other provision of law, a physician's assistant may perform medical services when such services are

      rendered under the supervision of a licensed physician or group of physicians certified by the board, in the specialty area or areas for which the physician's assistant is trained or experienced. Any physician's assistant certified under this section to perform services may perform those services only:

      1. In the office of the physician to whom the physician's assistant has been assigned, where such physician maintains his primary practice;

      2. Then the physician to whom he is assigned is present;

   
   

8. As the supervising physician is responsible for the supervision and control of Mr. Raymond, 1/ the Respondent allowed Mr. Raymond to violate the law since the record clearly established:

   
   

   1. The physician's assistant was not assigned where the supervising physician maintained her primary practice; and

   2. The physician's assistant performed services when the physician to whom he was assigned was not present.

   
   

9. Count Two of the Administrative Complaint alleged Respondent violated Section 458.331(1)(h) Florida Statutes by failing to comply with Rule 21M-17.O8 Florida Administrative Complaint. This rule required:

   
   

   21M-17.08 Responsibilities of Supervising Physician. The physician to whom the Physician's Assistant is certified shall be ultimately responsible for the supervision of his Physician's

   Assistant whenever the Physician's Assistant functions. If no proper supervision is available, the Physician's Assistant cannot and shall not function. The Board of Medical Examiners does not recognize or bestow any level of competency upon the Physician's Assistant to carry out specific tasks. Such recognition and endowment of skill to carry out specific tasks is the responsibility of the supervising physician.

   
   

10. This rule restates the statutory relationship established in Section 458.347(1)(f), Florida Statutes which defines "Supervision." Since the rule was repealed May 13, 1987, this violation has not been considered in the recommendation. The allegations and conclusions as to other counts sufficiently addressed this issue since it is clear that the only manner of supervision offered by Respondent was via the telephone conferences.

    
    

11. Count Three of the Administrative Complaint alleged the Respondent violated Section 458.331(1)(i), Florida Statutes by making or filing a report which the licensee knows to be false, intentionally or negligently failing to file a report or record required by State or Federal Law, willfully impeding or instructing such filing or inducing another person to do so. The Respondent did not comply with Section 458.348 Florida Statutes because she did not give Notice to the Board when her employment terminated. Moreover, the biennial report was false since Respondent had not moved her office to the Hypoluxo location. This was done out of her misplaced confidence in Mr. Raymond's judgment of the law and her own self-admitted ignorance of the legal requirements of the physician's assistant statutes. Consequently, she was negligent in not complying with the requirements of Section 458.348(1)(b) Florida Statutes.

    
    

12. Count Four of the Administrative Complaint alleged Respondent violated Section 458.331(1)(t) Florida Statutes by 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. By allowing the physician's assistant to treat heart patients and, as in this case, to allow Mr. Raymond, unsupervised to render insufficient and improper care, the Respondent has failed to practice medicine within the acceptable standard outlined by law.

Based on the foregoing, it is RECOMMENDED:

That the Board of Medical Examiners enter a Final Order assessing an administrative fine in the amount of $2,000.00. It is further recommended that the Respondent be reprimanded and that Respondent's license be placed on probation for a period of three (3) years subject to semi-annual appearances before the board; successful completion of continuing Medical Education to include courses on the responsibilities of licensed physicians under Chapter 458 and the rules promulgated thereunder; and that the Respondent be restricted from certification as a supervising physician for a physician's assistant during the term of such probation.

DONE and ORDERED this 2nd day of September, 1987, in Tallahassee, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1987.

ENDNOTE

1/ See Section 458.347(1)(f) Florida Statutes as to definition of "Supervision".

COPIES FURNISHED:

Michael Cohen, Esquire

517 SW First Avenue

Fort Lauderdale, Florida 33301

Maria I. Andrakovich, M.D. 6900 S. Dixie Highway

West Palm Beach, Florida 33405

Van Poole, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph A. Sole General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Dorothy Faircloth, Executive Director Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-002914

Orders for Case No: 86-002914