STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-1588

) JORGE D. PAEZ-SANCHEZ, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on June 26, 1990, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Andrea Bateman, Esquire

Senior Medical Attorney

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Elias B. Rudnikas, Esquire

351 N.W. Le Jeune Road Suite 104

Miami, Florida 33126 STATEMENT OF THE ISSUES

1. Whether Respondent committed the offenses described in the administrative complaint?

   
   

2. If so, what disciplinary action should be taken against him?

PRELIMINARY STATEMENT

On January 24, 1990, the Department of Professional Regulation (Department) filed an administrative complaint alleging that Respondent violated Section 458.331(1)(f) and (w), Florida Statutes, by allowing a "medically unlicensed" employee "to render physical therapy upon his patient" on or about September 6, 1989. Respondent thereafter requested a formal hearing on the allegations against him. On March 13, 1990, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the formal hearing Respondent had requested.

At hearing, the Department presented the testimony of three witnesses: Thomas Daniels, an investigator with the Department; Delores Prado, the "medically unlicensed" employee referenced in the administrative complaint; and Erica Fandino, one of Respondent's former patients. In addition, the Department offered, and the Hearing Officer received, five exhibits into evidence.

Respondent offered no evidence other than the testimony he elicited on cross- examination of the Department's witnesses.

At the conclusion of the evidentiary portion of the hearing, the Hearing Officer advised the parties on the record that their post-hearing submittals had to be filed no later than 20 days following the Hearing Officer's receipt of the transcript of the hearing. The Hearing Officer received a copy of the hearing transcript on July 9, 1990. Respondent and the Department filed their Post- hearing submittals on July 25, 1990, and July 30, 1990, respectively. The proposed findings of fact set forth in the parties' post-hearing submittals have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the record evidence, the following Findings of Fact are made:

1. Respondent is now, and was at all times material hereto, a physician authorized to practice medicine in the State of Florida under license number ME 0031424.

   
   

2. Respondent has an office located at S.W. 8th Street and S.W. 34th Avenue in Miami, Florida.

   
   

3. Delores Prado has worked in Respondent's office for the past ten years.

   
   

4. Her duties are primarily administrative in nature.

   
   

5. On occasion, however, Prado assists Respondent by administering physical therapy to Respondent's patients.

   
   

6. She does so, though, only at the specific directive of Respondent, who provides her with detailed instructions regarding the precise treatment each patient is to receive.

   
   

7. Prado never treats a patient when Respondent is not on the premises and immediately available if needed.

   
   

8. During her first year of employment with Respondent, Prado received training in the practice of physical therapy.

   
   

9. Prado is not now, nor was she at any time material hereto, licensed or certified to render any health care services in the State of Florida, including, but not limited to, those that licensed or certified physicians, registered nurses, practical nurses, physical therapists, and physical therapist assistants are authorized to perform. At all times material hereto, Respondent knew or should have of known of Prado's unlicensed status.

10. On September 2, 1988, Thomas Daniels, an Investigative Specialist II with the Department, visited Respondent's office to investigate a complaint that Respondent was permitting unlicensed individuals to administer physical therapy to his patients.

    
    

11. Upon his arrival at the office, Daniels was greeted by a young woman seated behind the reception desk. During the course of his conversation with the woman, Daniels inquired as to whether she had ever administered physical therapy to any of Respondent's patients. She replied in the negative. Daniels then showed her a copy of a letter, addressed to the U.S. Security Insurance Company and bearing her signature, which reflected the contrary. Confronted with this letter, the woman conceded that she and her fellow employees performed physical therapy on Respondent's patients. Respondent, who was nearby in a position where he could overhear the conversation, did not interject and deny the statement that his employee had made to Daniels.

    
    

12. Later during his September 2, 1988, visit, Daniels met with Respondent and was shown the office's physical therapy area. He then left.

    
    

13. Daniels returned to Respondent's office on September 6, 1988. On this visit, he was greeted by Prado. He asked her if he could speak with Respondent. Prado replied that Respondent was out of the office and she did not expect him back until later that afternoon.

    
    

14. Daniels then asked Prado if he could take photographs of the physical therapy area. Prado indicated that she had no objection to him doing so. Daniel thereupon went into the physical therapy area where he observed one of Respondent's patients seated in a chair with "hot packs" on her neck and shoulders. The patient was in the midst of receiving physical therapy administered by Prado pursuant to the specific directive of Respondent. Notwithstanding what Prado had told Daniels, Respondent was in fact on the premises, albeit outside of the physical therapy area and beyond Daniels' view, and was immediately available if needed.

    
    

15. Daniels took photographs of the physical therapy area and then concluded his visit.

    
    

16. During the ten minutes that Daniels was in Respondent's office on September 6, 1988, he spoke to Prado and no one else. Their conversation was in English and Prado appeared to have little difficulty understanding what Daniels was saying to her.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Board of Medicine (Board) is statutorily empowered to take disciplinary action against a physician licensed to practice medicine in the State of Florida based upon any of the grounds enumerated in Section 458.331(1), Florida Statutes.

    
    

18. Section 458.331(1)(f), Florida Statutes, authorizes the Board to discipline a Florida-licensed physician for "[a]iding, assisting, procuring, or advising any unlicensed person to practice medicine contrary to this chapter or to a rule of the department or the board."

19. The "practice of medicine," as that phrase is used in Section 458.331(1)(f), Florida Statutes, is defined in Section 458.305(3), Florida Statutes, as "the diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition."

    
    

20. The "practice of medicine," as defined in Section 458.305(3), Florida Statutes, includes the "practice of physical therapy," which is defined in Section 486.021(11), Florida Statutes, as follows:

    
    

    "Practice of physical therapy" means the performance of physical therapy assessments and the treatment of any disability, injury, disease, or other health condition of human beings, or the prevention of such disability, injury, disease, or other condition of health, and rehabilitation as related thereto by the use of the physical, chemical, and other properties of air; electricity; exercise; massage; the performance of acupuncture only upon compliance with the criteria set forth by the Board of Medicine, when no penetration of the skin occurs; the use of radiant energy, including ultraviolet, visible, and infrared rays; ultrasound; water; the use of apparatus and equipment in the application of the foregoing or related thereto; the performance of tests of neuromuscular functions as an aid to the diagnosis or treatment of any human condition; or the performance of electromyography as an aid to the diagnosis of any human condition only upon compliance with the criteria set forth by the Board of Medicine.

    
    

21. Section 458.331(1)(w), Florida Statutes, gives the Board authority to punish a Florida-licensed physician for "[d]elegating professional responsibilities to a person when the licensee knows or has reason to know that such person is not qualified by training, experience, or licensure to perform them."

    
    

22. The administrative complaint filed against Respondent alleges that he should be disciplined pursuant to Section 458.331(1)(f) and (w), Florida Statutes, for authorizing Prado to perform physical therapy on one of his patients on September 6, 1988, despite knowing, or having reason to know, that Prado was not a licensed or certified health care professional.

    
    

23. The record evidence clearly and convincingly establishes that Respondent engaged in such conduct on the date in question. Respondent contends, however, that such conduct did not constitute a violation of the proscriptions of Section 458.331(1)(f) and (w), Florida Statutes. It is his position that "no violation has occurred [because] Florida Statutes 486.161 and 458.303(2) expressly authorize the use of physical agents [such as Prado] in the

    practice of medicine and in the rendering of physical therapy." At least to the extent that he relies upon Section 458.303(2), Florida Statues, his argument is a convincing one.

    
    

24. Section 458.303(2), Florida Statutes, provides in pertinent part as follows:

    
    

    Nothing in . . . s. 458.331 . . . shall be construed to prohibit any service rendered by a physician's trained assistant . . . if such service is rendered under the direct supervision and control of a licensed physician who provides specific direction for any service performed and gives final approval to all services performed. Further nothing in this or any other chapter shall be construed to prohibit any service rendered by a physician's trained assistant in accordance with the provisions of this subsection.

    
    

25. Florida Administrative Code Rule 21M-29.001(1) contains the following administrative interpretation of the phrase "direct supervision and control," as used in the foregoing statutory provision:

    
    

    The phrase "direct supervision and control" as used in Section 458.303(2),

    F.S. shall require the following:

    The physical presence of the supervising physician on the premises so that the supervising physician is immediately available when needed.

    
    

26. In administering physical therapy on September 6, 1988, to one of Respondent's patients, Prado was assisting Respondent, who was on the premises and immediately available if he was needed, pursuant to Respondent's specific instructions and under his "direct supervision and control." Furthermore, by virtue of her training and experience, Prado was qualified to perform the tasks she had been delegated by Respondent.

    
    

27. As Respondent's trained and qualified assistant acting in accordance with his specific directives and under his "direct supervision and control," Prado was authorized by operation of Section 458.303(2), Florida Statutes, to render the physical therapy services that are the subject of the instant administrative complaint, notwithstanding her unlicensed status. Accordingly, contrary to the allegations made in the administrative complaint, Respondent did not run afoul of the provisions of either Section 458.331(1)(f), or Section 458.331(w), Florida Statutes, by directing Prado to render such services. 1/ The administrative complaint should therefore be dismissed.

RECOMMENDATION

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

RECOMMENDED that the Board of Medicine enter a final order finding that Respondent did not commit the offenses charged and dismissing the instant administrative complaint.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of August, 1990.

STUART M. LERNER

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 17th day of August, 1990.

ENDNOTES

1/ It is therefore unnecessary to decide whether Respondent's additional reliance on the provisions of Section 486.161, Florida

Statutes, is well-founded.

2/ There is no proposed finding of fact 6.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-1588

The following are the Hearing Officer's specific rulings on the findings of fact proposed by the Department and Respondent:

The Department's Proposed Findings of Fact

1. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

   
   

2. Rejected because it is more in the nature of a statement of the law, albeit an accurate one, than a finding of fact.

   
   

3. First sentence: To the extent that it states that Respondent was "neither present in the office nor on the premises," this proposed finding has been rejected because it is contrary to the greater weight of the evidence. In all other respects, it has been accepted and incorporated in substance; Second and third sentences: Rejected because they are summaries of testimony rather than findings of fact based upon such testimony.

4. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

   
   

5. Accepted and incorporated in substance.

7-8. 2/ Rejected because they are summaries of testimony rather than findings of fact based upon such testimony.

1. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it would add only unnecessary detail; Third sentence: Rejected because it is a summary of testimony rather than a finding of fact based upon such testimony.

   
   

2. Accepted and incorporated in substance. Respondent's Proposed Findings of Fact

First unnumbered paragraph: First and second sentences: Rejected because they are more in the nature of statements of the case than findings of fact

1. First, third and fourth sentences: Rejected because they are summaries of testimony rather than findings of fact based upon such testimony; Second sentence: Rejected because it would add only unnecessary detail.

Second-fourth unnumbered paragraphs: Rejected because they are summaries of testimony rather than findings of fact based upon such testimony.

Fifth unnumbered paragraph- First-second sentences: Rejected because they are summaries of testimony rather than findings of fact based upon such testimony; Third sentence: Rejected because it would add only unnecessary detail.

Sixth unnumbered paragraph- First sentence: Rejected because it is a summary of testimony rather than a finding of fact based upon such testimony; Third and fourth sentences: Accepted and incorporated in substance.

Seventh unnumbered paragraph: Rejected because it is a summary of testimony rather than a finding of fact based upon such testimony.

Eighth unnumbered paragraph- First and second sentences: Rejected because they are summaries of testimony rather than findings of fact based upon such testimony. Third sentence: Rejected because it would add only unnecessary detail; Fourth sentence: Accepted and incorporated in substance; Fifth sentence: Rejected because it is a summary of testimony rather than a finding of fact based upon such testimony.

COPIES FURNISHED:

Andrea Bateman, Esquire Senior Medical Attorney

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Elias B. Rudnikas, Esquire

351 N.W. Le Jeune Road Suite 104

Miami, Florida 33126

Dorothy Faircloth, Executive Director Board of Medicine

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Docket for Case No: 90-001588

Orders for Case No: 90-001588