STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

vs. ) CASE NOS. 88-6328

) 88-6329

DODE A. HOSKINS, D. P. M., ) 88-6330

) DPR CASE NOS. 0080076

Respondent. ) 0085886

) 0087508

RECOMMENDED ORDER

Pursuant to Section 120.57(1), Florida Statutes, a formal hearing in the above action was held in Tampa, Florida, on July 20, 1989, before J. Lawrence Johnston, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bruce D. Lamb, Esquire

Chief Trial Counsel

730 South Sterling Street, Suite 201

Tampa, Florida 33609

For Respondent: Michael L. Kinney, Esquire

1009 West Platt Street Tampa, Florida 33606

PRELIMINARY STATEMENT

On August 12, 1987, the Petitioner, the Department of Professional Regulation, filed an Administrative Complaint against the license of the Respondent in DPR Case No. 0080076. On December 2, 1988, the Petitioner filed administrative complaints against the license of the Respondent in DPR Case Nos. 0085886 and 0087508. The Respondent requested a formal hearing before the Division of Administrative Hearings. By Order of the Hearing Officer the three cases were consolidated. By Order of the Hearing Officer, the Petitioner was allowed to file an Amended Administrative Complaint consolidating the allegations in the three cases.

STATEMENT OF THE ISSUES

The issues for determination in this Hearing are whether the Respondent has violated the provisions of Chapter 461, Florida Statutes, as alleged in the Amended Administrative Complaint and, if so, what discipline, if any, is appropriate.

FINDINGS OF FACT 1/

1. The Board of Podiatric Medicine is the State agency governing the practice of podiatry in the State of Florida.

2. Respondent, Dode A. Hoskins, D.P.M., is and has been at all times material to the allegations in the Amended Administrative Complaint, a licensed physician in the state of Florida, having been issued license number PO-0001072.

   
   

   PATIENT SCHELLENBERG - DPR CASE NO. 0080076

   
   

3. On or about July 22, 1986, Respondent treated a patient, J. Schellenberg, for an ingrown toenail on the right foot.

   
   

4. Respondent billed for the following services:

   
   

   1. Consultation;

      
      

   2. X-rays, right foot, three views;

      
      

   3. X-rays, left foot, three views;

      
      

   4. Three preoperative vascular flow studies;

      
      

   5. Excision of nail and matrix lateral aspect;

      
      

   6. Excision of nail and matrix medical aspect;

      
      

   7. Injection of peripheral nerve; and

      
      

   8. Sterile surgical tray.

      
      

5. The following services were not necessary nor indicated in regard to this patient's condition;

   
   

   1. The X-rays of the left foot;

      
      

   2. The preoperative vascular flow studies.

      
      

6. Respondent has exercised influence on the patient Schellenberg in such a manner as to exploit the patient for financial gain of the Respondent.

   
   

7. By performing services on the patient Schellenberg which were not necessary nor indicated, Respondent failed to practice podiatric medicine at a level of care, skill and treatment which is recognized by a reasonably prudent podiatrist as being acceptable under similar conditions and circumstances.

   
   

8. The records kept by the Respondent fail to justify the preoperative vascular flow studies on the patient Schellenberg and fail to adequately justify the X-rays on the left foot. /2

   PATIENT SANDERS - DPR CASE NO. 0085886

   
   

9. On or about, February 20, 1987, the Respondent performed surgery on the patient, Lois Sanders.

   
   

10. The Respondent performed the following surgical procedures on patient Sanders:

    
    

    1. Arthroplasty on fifth toes, left and right feet;

    2. Tenotomy and capsolotomy on toes 2 through 5, left and right feet.

       
       

11. The Respondent's medical records and x-rays fail to justify the course of treatment on any of toes 2, 3, and 4 of either of Sanders' feet.

    
    

12. Although the patient was requested to sign numerous consent forms prior to surgery, the extent and the necessity for surgery on toes 2, 3, and 4 on both feet and the acceptable alternatives and substantial risks and hazards inherent in the procedures were not explained to the patient.

    
    

13. Respondent has performed professional services which have not been duly authorized by the patient or her legal representative.

    
    

14. The surgery to toes 2, 3, and 4 on both feet was not justified by the patient's condition.

    
    

15. By performing surgeries which were unnecessary, the Respondent exercised influence on the patient in such a manner as to exploit the patient for financial gain of the Respondent.

    
    

16. In his treatment of Sanders, Respondent failed to practice podiatric medicine at a level of care, skill, and treatment which is recognized by a reasonably prudent podiatrist as being acceptable under similar conditions and circumstances.

    
    

17. On or about February 4, 1987, the Respondent had performed on patient Sanders a vascular flow examination.

    
    

18. Respondent's medical records do not substantiate the necessity for performing a vascular flow examination on Sanders.

    
    

19. By performing a vascular flow study on Sanders, the Respondent has exercised influence on the patient Sanders for financial gain of the Respondent.

    
    

    PATIENT KOSHAR - DPR CASE NO. 0087508

    
    

20. During August of 1986, the patient, Sue Koshar, presented at the offices of the Respondent with a complaint of planters wart on the left foot and ingrown nail on the left foot.

    
    

21. Between August 29, 1986, and December 6, 1986, the Respondent performed laser surgery for the treatment of the planters wart on the patient Koshar on four occasions.

    
    

22. The Respondent failed to anesthetize the area before performing laser surgery on the first three occasions.

23. The patient's complaints concerning a burning sensation caused the Respondent to stop the surgery on the first three occasions before it was completed.

    
    

24. Respondent's medical records:

    
    

    1. do not reflect the patient's complaints of a burning sensation;

       
       

    2. do not reflect that the surgery

       was not completed after the first two visits or that surgery was not completed on the first three visits due to the patient's complaints of a burning sensation;

       
       

    3. indicate that laser was utilized on two occasions when it was

       actually utilized on four occasions;

       
       

    4. indicate that local anesthesia was utilized at the time of

       the first use of the laser, when in fact local anesthesia was only used at the time of the last laser surgery; and

       
       

    5. fail to reflect that adequate postoperative care was given to the patient Sue Koshar.

       
       

25. Respondent has failed to keep written records justifying the course of treatment of the patient Koshar. The records do not explain why surgery was redone on three occasions, do not explain why no anesthesia was administered on three of the surgeries and do not identify the kind of anesthesia administered on the last surgery or explain why it was used.

    
    

26. Respondent has, in regard to patient Koshar, failed to practice Podiatric Medicine at a level of care, skill, and treatment which is recognized by a reasonably prudent podiatrist as being acceptable under similar conditions and circumstances, for the following reasons:

    
    

    1. Respondent failed to properly anesthetize the patient Koshar at the time of the first three laser surgeries, resulting in multiple painful and unsuccessful procedures;

       
       

    2. Respondent failed to adequately provide postoperative care to patient Koshar following her surgeries; and

       
       

    3. Respondent failed to keep medical records necessary to adequately treat the patient's conditions.

       
       

27. On or about August 29, 1986, the Respondent performed vascular flow studies on patient Koshar.

28. Respondent's records do not substantiate the necessity for performing vascular flow studies on patient Koshar.

    
    

29. Vascular flow studies were not indicated in the diagnosis or treatment of patient Koshar's complaints.

    
    

30. Respondent has exercised influence on the patient or client in such a manner as to exploit the patient or client for financial gain of the Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

31. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

    
    

32. The Department must prove the allegations in the Administrative Complaint as amended by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

33. Respondent has been charged with violations of Section 461.013(1), Florida Statutes, to wit:

    
    

    1. failing to keep written records justifying the course of treatment of the patient including, but not limited to, patient histories, examination results, and test results;

    2. exercising influence on the patient for financial gain of the licensee;

    3. performing professional services which have not been duly authorized by the patient, client, or his legal representative; and,

    (t) failure to practice podiatric medicine at a level of care, skill, and treatment which is recognized by a reasonably prudent podiatrist as being acceptable under similar conditions and circumstances.

    
    

34. Section 766.103, Florida Statutes, (Supp. 1988), defines "informed consent". It is concluded that the patient Sanders, despite the written form in the medical records, did not give "informed consent" to Respondent in regard to the procedures on toes 2, 3, and 4.

    
    

35. The Respondent is required to maintain records justifying his course of treatment. Rizzo v. Department of Professional Regulation, Board of Medical Examiners, 511 So. 2d 1019 (Fla. 4th DCA 1987). Petitioner has established, by clear and convincing evidence, that the Respondent failed to do so in regard to all three patients. Respondent also has failed to meet the standard of care in the treatment of these patients. By performing unnecessary and unauthorized services Respondent has exercised influence on all three patients for financial gain.

    
    

36. The Board of Podiatric Medicine has enacted disciplinary guidelines which have been considered in formulating a recommended penalty. In addition, the number of violations established and the significance of the violations, especially the unnecessary and unauthorized surgery on the patient Sanders, have been considered.

RECOMMENDATION

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

1. that the licensure of the Respondent be suspended for one year and until such time as Respondent has completed 50 hours of continuing podiatric medical education as designated by the Board (in addition to those hours required for license renewal) and pays a fine in the amount of $10,000.00, and

   
   

2. that, upon reinstatement, the license of Respondent be placed in a probationary status for a period of two years under conditions imposed by the Board but including requirements that the Respondent:

   
   

   1. work only under indirect supervision of another podiatric physician who shall review Respondent's records on a monthly basis;

   2. submit quarterly reports to the Board;

   3. make annual appearances before the Board; and

   4. only perform vascular testing on those patients whose history or physical findings show possible impaired circulation.

In addition, Respondent shall only perform vascular testing on those patients whose history or physical findings show possible impaired circulation.

DONE AND ENTERED this 28th day of September, 1989, in Tallahassee, Leon County, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1989.

ENDNOTES

1/ Explicit rulings on the parties' proposed findings of

fact may be found in the attached Appendix to Recommended Order.

2/ The Respondent's records are confused but could be read

to indicate that the patient presented with pain in the left big toe. As found, in fact, the patient presented with pain in the right big toe, only.

APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-6328, 88-6329 AND 88-6330

To comply with Section 120.59(2), Florida Statutes (1987), the following explicit rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings:

1.-18. Accepted and incorporated.

1. Accepted and incorporated as limited to the vascular flow studies.

2. Accepted and incorporated.

3. Accepted and incorporated as limited to four occasions.

22.-23. Accepted and incorporated.

1. The stated deficiencies in the records essentially are accepted and incorporated. Not all of the deficiencies constitute failures to justify course of treatment. Some are failures to record the treatment actually performed.

   See 25 for failures to justify course of treatment.

2. Accepted and incorporated, specifying the deficiencies that resulted in failure to justify course of treatment.

3. Accepted and incorporated.

4. Rejected as cumulative.

28.-31. Accepted and incorporated. Respondent's Proposed Findings:

The Respondent filed no proposed findings of fact per se but did file a Summation, consisting of unnumbered paragraphs. However, certain proposed findings of fact are implicit in the Summation, and an attempt will be made to address these proposed findings.

Proposed finding that the patient, Schellenberg, complained of pain in the left big toe is rejected as contrary to facts found.

Proposed finding, based on the testimony of the Respondent's expert witness, that X-rays of the left foot of the patient, Schellenberg, were proper is rejected as being based on the rejected proposed finding that the patient complained of pain in the left foot.

Proposed finding that the patient, Sanders, gave informed consent to the surgery the Respondent performed is rejected as contrary to facts found. It is not believed that either the Respondent or his staff adequately advised the patient, Sanders, what the proposed surgery involved, if she chose to undergo it. The patient thought she was to have two corns removed by a procedure commonly referred to as a "zip," in which an exostosis is scraped off the bone of the toe. "Hammer toe deformities of the fifth toes and contractures of the lesser toes" was not explained to her. It is not believed that the nurse anesthetist, Cruz, actually remembered the patient, Sanders, or the advice given her by the other nurses on the day of surgery. Rather, it is believed that Cruz, as a loyal employee of the Respondent, convinced himself that he remembered this particular patient based on his understanding of the standard operating procedures used by the Respondent and his staff. Despite Cruz' testimony that the anesthesia he used can cause amnesia or even hallucinations, the patient's testimony is believed to be true. It was corroborated by the testimony of the patient's friend, who drove the patient to and from the Respondent's office on the day of the surgery. Based on what the patient had

told the friend before surgery, both the patient and the friend were surprised when they discovered what surgery actually had been performed.

Proposed finding that laser surgery was performed on only the first and fourth visits by the patient, Koshar, is rejected as contrary to facts found. Laser surgery was performed on all four visits.

Proposed finding that the vascular flow studies were proper as routine preoperative diagnostics tests is rejected as contrary to facts found. These tests are unnecessary and improper for patients younger than 55 to 60 years of age unless the patient's history or clinical findings indicate an elevated risk of circulatory problems.

Proposed findings that the father of the patient, Schellenberg, instigated his son's complaint and that the patient himself was satisfied with the quality of the services actually performed are rejected as irrelevant. The charge is that the Respondent did and charged for unnecessary services, not that the services were not performed well enough.

Proposed findings regarding the insurance coverage for the patient, Koshar, are rejected as irrelevant.

Proposed findings regarding the propriety of X-rays for the patient, Koshar, are rejected as irrelevant. The Respondent is not charged with improper X-rays of the patient, Koshar.

Proposed finding as to the Respondent's postoperative care of the patient, Koshar, is rejected as subordinate to facts contrary to those found. It recited what the Respondent did but does not the expert testimony that the care was inadequate.

COPIES FURNISHED:

Bruce D. Lamb, Esquire Chief Trial Counsel Department of Professional Regulation

730 South Sterling Street, Suite 201

Tampa, Florida 33609

Michael L. Kinney, Esquire 1009 West Platt Street Tampa, Florida 33606

Dorothy Faircloth Executive Director Board of Medicine Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0729

Docket for Case No: 88-006328

Orders for Case No: 88-006328