STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, BOARD OF ) OSTEOPATHIC MEDICAL EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 90-4701
)
LEONARD VIGDERMAN, D.O., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on January 15-16, 1991, in Tampa, Florida.
APPEARANCES
For Petitioner: Mary B. Radkins, Esquire
Department of Professional Regulation, Suite 60
1940 N. Monroe Street Tallahassee, Florida 32399-0792
For Respondent: John R. Feegel, Esquire
John Sabella, Jr., Esquire
401 S. Albany Avenue Tampa, Florida 33606
STATEMENT OF THE ISSUES
Whether disciplinary action should be taken against Respondent's license to practice osteopathic medicine, license number OS 0001663, based on the alleged violations of Section 459.015(1), Florida Statutes, as set forth in the Administrative Complaint.
PRELIMINARY STATEMENT
On June 26, 1990, Petitioner filed an Administrative Complaint against Respondent, D. Leonard Vigderman, D.O., alleging in a three count Administrative Complaint that Respondent violated Section 459.015(1), Florida Statutes (1985), by failure to practice osteopathic medicine with that level of care, skill, and treatment of a similarly situated prudent osteopathic physician; failure to keep written medical records justifying his course of treatment of R.Y.; misrepresenting or concealing a material fact during a phase of a disciplinary process.
Respondent, through his counsel, requested a formal hearing. His original counsel withdrew on August 23, 1990. Formal hearing was set for October 30 and 31, 1990. At the time of hearing, present counsel appeared for Respondent and requested a continuance. Formal hearing was duly held in Tampa, Florida, January 15-16, 1991.
At the formal hearing, Petitioner presented the testimony of Diane Tullos and Lucille Rocha, custodians of R.Y.'s medical records, Mrs. R.Y., widow of the patient, Cynthia Keller and Debbie Dubois, daughters of R.Y., Donald Smith, Esquire, attorney for Mrs. R.Y., Diane Gossett, M.Q.A. Investigator for the Department of Professional Regulation, the Respondent, and Doctors Neil Tytler and Joseph Rosin, both Osteopathic physicians, who testified as expert witnesses. Respondent presented the testimony of Irene Nisse, Ann McLeod, Dr.
Jules Minkes, D.O., as an expert witness, and the Respondent testified in his own behalf. Petitioner offered Petitioner's Exhibits 1-22 in evidence.
Respondent offered Respondent's Exhibits 1-3 in evidence. The Hearing Officer takes official recognition of Respondent's prior discipline by the Board of Osteopathic Medical Examiners and the Disciplinary Guidelines established by the Board of Osteopathic Medical Examiners.
The transcript of the proceedings was filed on February 6, 1991.
Petitioner's proposed findings of fact and conclusions of law were filed on February 26, 1991, and Respondent's proposals were filed on February 20, 1991. They have been given careful consideration and have been adopted where supported by clear and convincing evidence. My specific rulings on each party's proposals are contained in the Appendix attached hereto.
Based upon all of the evidence, the following findings of fact are determined.
FINDINGS OF FACT
Respondent is, and has been at all times material hereto, a licensed osteopathic physician in the State of Florida, having been issued license number OS 0001663. The Respondent practices in the Tampa area.
R.Y. became a patient of Respondent in 1981 when he was hospitalized at Good Samaritan Hospital for what Respondent diagnosed as typhoid fever, hepatic cirrhosis and portal hypertension.
R.Y. remained a patient of Respondent and was again hospitalized at Good Samaritan Hospital in 1982 for congestive heart failure.
R.Y. remained a patient of Respondent until his death in 1986. Respondent made some 31 office visits to Respondent between 1982 and 1986, with one cancellation.
R.Y. was a functioning alcoholic with cirrhosis of the liver who did not openly discuss his medical condition with his family or others, except Respondent. However, he was regularly employed even after his retirement in 1981. He drank 2 to 6 large beers a day and had smoked a pack and a half of cigarettes for all his adult life.
Beginning in the last quarter of 1985, R.Y.'s health began to deteriorate. By Christmas 1985, his family noted weight loss, persistent cough and shortness of breath.
Between February 4, 1986 and May 2, 1986, R.Y. was seen by Respondent eleven times. R.Y. initially was seen for an injury to his foot, but complained of anorexia and insomnia.
On March 4, 1986, R.Y. began to complain of back pain, possibly wrenched while carrying groceries. He was treated with osteopathic manipulative therapy (OMT), and injections of adrenal-corticotrophic hormone (ACTH), Depo- medrol and Orphenadrine.
On March 6, 1986, the pain recurred. R.Y. was again given OMT, ACTH and Robaxin.
On March 25, 1986, R.Y. was experiencing pain in the lower dorsal area and treated with OMT. He was sleeping and eating better.
On April 15, 1986, R.Y. complained of persistent pain in the mid and lower dorsal area, and his appetite was poor. He was treated with neuroelectric physical therapy and OMT.
On April 24, 1986, R.Y.'s daughters accompanied him on a routine visit to Respondent's office. They were concerned that their father's health had been steadily worsening for four months. They wanted to be sure that Respondent was aware of all R.Y.'s symptoms, i.e., pain, accompanied by shortness of breath, no appetite, continual weight loss, chronic diarrhea, and a very persistent cough.
R.Y. did not oppose having his daughters come with him. He invited them to come into the examining room with him.
One or the other of R.Y.'s daughters was with R.Y. and Respondent at all times during this visit.
On April 24, 1986, Respondent found R.Y.'s pain was so severe he could not sit or lie down. He was nauseous with a poor appetite and complained of pain in his lower rib cage on breathing. He was dyspneic and orthopneic.
Respondent listened to R.Y.'s chest and ordered an x-ray which revealed fluid in the right chest. Respondent proceeded to perform a thoracentesis on R.Y. in the office, removing 3,000 cc of fluid from his right chest.
Thoracentesis is a procedure which is normally performed in a hospital setting or in an emergency room where a collapsed lung, a tension pneumothorax, or hypotension, possible complications of the procedure and can be treated quickly.
No intravenous fluid line was established on R.Y. before the procedure.
R.Y.'s blood pressure was not monitored before, during or after the thoracentesis. Monitoring of vital signs is essential to assure that the patient does not need acute intervention after this procedure.
The fluid removed from R.Y.'s chest was discarded in the sink. Respondent's handwritten records do not indicate that any of the fluid was to be analyzed by a laboratory.
Respondent's printed transcription of his records contain the words "To lab."
There is no laboratory report in either copy of Respondent's records which would indicate that any of the fluid was analyzed.
There was no follow-up x-ray taken by Respondent after the thoracentesis. No pleural biopsy was done.
It is below the standard of care for a physician not to take an x-ray after a thoracentesis in order to ascertain whether the fluid has been satisfactorily removed; what, if anything, is revealed when the shadow of the fluid is no longer there and to assure the physician that no pneumothorax has been developed.
R.Y. was given Digoxin and Lasix, a diuretic, after the thoracentesis, which could contribute to hypotension.
Respondent never suggested hospitalization for R.Y. When R.Y.'s daughter asked where to take him Respondent told her there was nothing they could do in a hospital that couldn't be done at home.
Respondent told R.Y.'s daughters to have R.Y. drink "Ensure Plus" and eat a high protein diet, even though R.Y. was nauseated and could not swallow and had chronic diarrhea.
At no time during this visit was there an explanation to the patient of the possible causes of the chest effusion.
The only explanation by Respondent concerned R.Y.'s congestive heart failure and that he was very sensitive in that regard.
Contrary to the statement of Respondent in his letter to the Department of Professional Regulation, R.Y. did not obtain ". . . complete relief from dyspnea and orthnopnea, better sleep, improved appetite and exercise-tolerance" after the thorancentesis. Respondent continued to be very weak with poor appetite, experienced, difficulty breathing and soon could not walk from bed to bathroom.
To stabilize and evaluate R.Y. and to pursue a diagnosis, a reasonably prudent similarly situated physician would have hospitalized R.Y. at this time.
Respondent made no further investigation into the cause of R.Y.'s unilateral effusion, which can be a symptom of a malignancy, pneumonia, or other unilateral problems.
On April 25, 1986, R.Y. returned for a follow-up visit with Respondent. Although he had achieved some measure of relief he was too weak even to sit for long. Respondent prescribed Lasix and Digoxin.
On April 28, 1986, R.Y. cancelled his appointment with Respondent.
On April 30, Respondent again saw R.Y. His blood pressure was recorded. R.Y. had a cough, nausea and poor appetite. He was given injections of ACTH, Depo-medrol, vitamin B complex, B12 and prescribed Prednisone.
On this visit, Mrs. R.Y. accompanied her husband. R.Y. expected that Respondent would hospitalize him and took pajamas, robe, and shaving kit. Mrs.
R.Y. asked Respondent to "Please put my husband in the hospital." Respondent stated "they can't do anything for him in the hospital that we can't do right here in the office."
R.Y. was unaware that Respondent had no hospital privileges.
Respondent never informed R.Y.'s wife or daughters that he had had no hospital privileges since 1983.
By May 4, 1986, R.Y.'s condition had so deteriorated that he was too weak to walk and could not void. R.Y. willingly went with his wife and friend William Stephens to the VA hospital in Tampa where he was immediately hospitalized.
On May 5, 1986, Mrs. R.Y. had a discussion with Dr. Terry, the attending physician. This was the first time cancer was mentioned.
Physical examination of R.Y. at the time of admission to the V.A. hospital revealed a palpable mass in the liver, palpable axillary and submadibular nodes, right pleural effusion and tachicardia. Medical tests showed electrolyte imbalance. X-rays revealed a compression fracture. The diagnosis is "cancer until proven otherwise."
R.Y. continued a downhill course, expiring on May 8, 1986. Autopsy revealed wide spread small-cell carcinoma of the right lung with metastatic lesions in the lymph nodes, liver, left adrenal and kidney, ribcage and ribs, posterior body wall and vertebrae.
After R.Y.'s death his widow retained Mr. Don Smith, attorney who obtained a copy of R.Y.'s medical records from Respondent's office.
This copy of Respondent's medical records was included with Mrs. R.Y.'s complaint when sent to the Department of Professional Regulation on March 24, 1988.
When the Department of Professional Regulation subpoenaed the medical records of R.Y. from Respondent, he could produce only the x-rays taken on April 24, 1986 and the records of R.Y.'s hospitalization in 1981 and 1982 at Good Samaritan Hospital, but not his own office records.
On July 21, 1988, a copy of the records obtained from Mrs. R.Y. was sent to Respondent with a request to type or print a legible version of those records.
On August 22, 1988, the Department of Professional Regulation received Respondent's printed transcription of his medical records along with Respondent's letter of explanation of his handling of R.Y.'s case.
Comparison of Petitioner's Exhibit 2 with Petitioner's Exhibit 4 reveals that Respondent has added on his transcription:
on March 4, 1986 "Note - x-ray declined" on March 25, 1985 "(unchanged)
Pat declined further investig." on April 24, 1986 "to LAB"
on April 25, 1986 "Note - Pat. declined further
investig. because of improvement; A.M.A."
Comparison of Petitioner's Exhibit 2 with Petitioner's Exhibit 4 reveal that Petitioner has omitted to transcribe:
Call in prescriptions on Feb. 19, 1986
Mar. 4, 1986
Mar. 14, 1986
Mar. 18, 1986
Apr. 1, 1986
Diagnosis on Feb. 24, 1986 "Dx ASHC c atrial
fibrillation peripheral vasc. insufficiency"
Mar. 4, 1986 "Dx acute costovertebral subluxations 6th-9th dorsal myositis ASHC c atrial fibrillation CHF
Periph. vascular dis."
Mar. 6, 1986 "Dx - as above"
Mar. | 25, | 1986 | "Dx | - as above" |
Apr. | 24, | 1986 | "Dx CHF | ASHD c large pleural |
effusion"
Apr. 25, 1986 "Dx - CHF, improved"
May 2, 1986 "Dx CHF, controlled
ASHC c artial fibrillation malnutrition"
It is improper for a physician to alter a medical record.
Respondent testified that he deleted the diagnosis, as he only put them down for insurance purposes and he really didn't think they were important.
Respondent admitted he added notations to his printed transcription of his medical records.
There is no indication in Respondent's written records that R.Y. ever refused any medical tests, therapy, hospitalization, or was otherwise a non- compliant patient.
Respondent's records reveal liver profile tests, an EKG, electrolyte levels and other tests, all in 1983 or before. On February 5, 1986, Respondent performed a blood sugar test on Respondent. Respondent's written records show only one appointment not kept by R.Y.
R.Y.'s wife, daughters and lifelong friend all characterize him as being very respectful to all authority figures, and a person who would cooperate with and obey the orders of his physician. He liked and respected Respondent.
R.Y. even periodically attempted to cut back his long addictions to alcohol and tobacco and increase his physical exercise in response to Respondent's orders.
In the spring of 1986, R.Y. became increasingly frustrated and depressed because he was not getting any better but becoming weaker and his pain persisted.
Respondent routinely treated R.Y. with diuretics but he had not monitored R.Y.'s electrolyte status since February 9, 1983.
Respondent routinely gave R.Y. injections of testosterone. There is no indication that R.Y.'s testoterone levels were ever determined nor any reason given in Respondent's records for administering testosterone, which could contribute to fluid retention in a patient with a history of heart failure and organic heart disease.
Respondent stated, in his letter to the Department of Professional Regulation investigator that at no time did ". . . this patient ever present with . . . inappropriate hormonal activity."
Respondent gave R.Y. Erythromycin, an antibiotic which can cause or contribute to hepatic dysfunction, even though R.Y. had cirrhosis of the liver, without indicating in his medical records his reasons for doing so.
Respondent's blood pressure had been documented in 1985 and before, but was not taken again until April 30, 1986.
Respondent routinely gave R.Y. Digoxin without monitoring R.Y.'s Digoxin or electrolyte levels or indicating in his records his reasons for doing so.
Respondent failed to follow consistently R.Y.'s blood pressure, which is an effective way of monitoring a patient's cardiac status.
Respondent routinely administered ACTH, Depomedrol and prednisone to
R.Y. but did not justify their use in his medical records.
There is no indication in Respondent's records that he considered an arteriogram when R.Y. had a badly infected foot.
There is no documentation in Respondent's medical records that he ever considered a malignancy as a differential diagnosis in R.Y.'s case.
In Respondent's written medical records there is no indication that he ever varied from his original diagnosis of Arteriosclerotic Heart Disease (ASHD) and Congestive Heart Failure (CHF).
In Respondent's printed transcription of his medical records he has omitted any reference to his diagnosis of R.Y.'s condition.
R.Y.'s weight has been documented in 1983 but was not recorded again in Respondent's medical records until April 30, 1986, although R.Y. had been losing weight for at least five months.
Respondent undertook no investigation as to the cause of R.Y.'s weight loss, other than noting "malnutrition" on April 2, 1986, in his written medical records, nor any steps taken to correct it.
Respondent did not take an x-ray of R.Y. until April 24, the date of the thorancentesis, even though R.Y. had been complaining of his back pain for six weeks.
There is no documentation in Respondent's medical records that he considered the unilateral chest effusion significant or pursued any other diagnosis other than congestive heart failure.
There is no documentation in Respondent's medical records that he ever performed any tests on R.Y. for cancer.
When R.Y.'s daughters met with Respondent to discuss their father's treatment Respondent stated that he had run several tests for cancer and they all came back negative; that "I turned him inside out and could find no evidence of cancer in him."
The only tests performed on R.Y. in the last year of his life were the chest x-ray of April 24, 1986 and a blood sugar on February 5, 1986.
Although Respondent repeatedly examined R.Y.'s liver and noted it to be enlarged, his records do not reflect that he was aware of the large mass present by palpation on Respondent's admission to the VA hospital.
There is no indication in the medical records that Respondent ever checked R.Y.'s lymph nodes, although auxiliary nodes were palpable on Respondent's admission to the VA hospital.
The purpose of a physician's accurate and complete medical record is to assist the physician to recall accurately his prior treatment and treatment rationale, to provide continuity of care should another physician be called in to provide care for the patient, and to protect the physician.
The medical records of Respondent reflect what he did to R.Y. but do not justify the course of treatment he followed.
Respondent's statement, in his letter to the Department of Professional Regulation, that "at no time did this pulmonary neoplasm such as persistent cough, hemoptysis, coughing up blood, wheezing, hoarseness, persistent chest pain, adenopathy, irreversible dyspnea, shortness of breath, inappropriate hormonal activity, etc." cannot be reconciled with Respondent's own medical records, the testimony of R.Y.'s wife and daughters or the medical records of the VA hospital.
Respondent, in his letter to the Department of Professional Regulation, never mentioned a "contract" between himself and R.Y. not to test, investigate, treat, document, or confer with R.Y.'s family about his condition.
Even if palliation of R.Y. was Respondent's only consideration, an accurate diagnosis would aid in rendering the patient more comfortable.
Respondent failed to practice osteopathic medicine with that level of care, skill and treatment recognized as being acceptable under similar conditions and circumstances by a reasonably prudent similar osteopathic physician.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes and Section 455.225, Florida Statutes.
Pursuant to Section 459.015(2), Florida Statutes, the Board of Osteopathic Medical Examiners is empowered to revoke, suspend or otherwise discipline the license to practice osteopathic medicine of any osteopathic physician in the State of Florida found guilty of the acts enumerated in Section 459.015(1), Florida Statutes (1989).
In a disciplinary proceeding, the burden is upon the Department to establish the facts upon which its allegations of misconduct are based. The Petitioner must prove its allegations by clear and convincing evidence. Ferris
v. Turlington, 510 So.2d 292 (Fla. 1987).
The Administrative Complaint in this case charges Respondent with three violations. Count I alleges that Respondent violated Section 459.015(1)(t), Florida Statutes (1985), now Section 459.015(1)(y), Florida Statutes (1989) in that he failed to practice osteopathic medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar osteopathic physician as being acceptable under similar conditions and circumstances. The evidence presented has established by clear and convincing evidence that Respondent did not practice osteopathic medicine to the required standard because:
Respondent persisted in his diagnosis of arteriosclerotic heart disease and congestive heart failure without any further investigation of the underlying causes of R.Y.'s worsening chest and back pain, his nausea, lack of appe- tite, persistent diarrhea, continuing weight loss and malnutrition, persistent cough, con- tinuing weight loss and malnutrition, persis- tent cough, dyspnea and orthopnea.
Respondent did not take routine blood pressure in this cardiac patient from March 1985 to April 1986, nor monitor R.Y.'s weight in the face of ongoing weight loss. Testoster- one and ACTH injections were routinely adminis-
tered without any monitoring of hormonal levels. Respondent failed to detect positive axillary nodes and the mass on the liver. Respondent failed to utilize x-rays as a diagnostic tool. (c). Respondent inappropriately performed a thoracentesis in his office. He did not uti- lize an intravenous fluid line, did not monitor
R.Y.'s vital signs, did not take a post-procedure x-ray, did not send a specimen of the fluid
for laboratory analysis, and did not undertake any investigation of the possible significance of the unilateral chest effusion.
(d). Respondent treated R.Y. with diuretics and Digoxin without monitoring the electrolyte imbalance. Respondent did not hospitalize R.Y. nor inform R.Y.'s wife that he had no hospital privileges, even when R.Y. came to the office anticipating hospitalization and his wife re- quested it. R.Y. believed in Respondent and would have followed his instructions.
The evidence is not credible that R.Y. did not wish to be treated or was chronically depressed. Respondent has alleged only hearsay communication with R.Y. to support his assertion that R.Y. did not wish to know of his condition or be treated for it. There is no other evidence this hearsay may be used to supplement or explain, certainly not Respondent's additions to his medical records two years later. The assertions by Respondent of a "contract" with R.Y. not to treat, investigate or inform him, but only to palliate, exists only in Respondent's testimony. This "contract" was never mentioned by Respondent in his exculpatory letter to the D.P.R. investigator written at the beginning of the investigation. This assertion is not credible.
Even assuming palliation only was Respondent's goal, testimony of Drs. Tytler and Rosin and Minkes supports the necessity for reasonable investigation into the underlying causes of symptoms, the better to achieve comfort for the patient. In the spring of 1986 Respondent could not know what was the underlying cause of R.Y.'s symptoms, particularly whether he was afflicted with a terminal illness, because he never considered anything but R.Y.'s cardiac status and cirrhosis. Whether he was dying of cancer in 1986 and before, as known only in hindsight, cannot be reason to ignore symptoms of what could have been a curable condition.
Count II alleges that Respondent failed to keep written medical records justifying his course of treatment of the patient, including, but not limited to, patient histories, examination results, and test results, in violation of Section 459.015(1)(n), Florida Statutes, (1985), now Section 459.015(1)(p), Florida Statutes, (1989). Petitioner has proven this allegation by clear and convincing evidence.
Respondent could not produce his own written medical records when they were demanded by subpoena by DPR. Section 459.015(1)(n), now (p), is a statutory obligation and as such, is not to be measured by the standard of the reasonably prudent, similar physician as being acceptable under similar conditions and circumstances. Robertson v. DPR 15 F.L.W. D1647 (Fla. 1st DCA, June 19, 1990); Rizzo v. DPR 519 So.2d 1019 (Fla. 4th DCA 1987).
Respondent has alleged that the original release of a copy of his written office records was improperly obtained by the widow of R.Y., through her attorney. However, Respondent cannot assert a privacy right in his patient's records which are required by statutes to be kept, and Respondent has no standing to make this contention. Nach v. DPR, 528 So.2d 908 (1988), Fagan v. DPR 534 So.2d 802 (1988). Respondent waived any challenge to the release of his records as he voluntarily complied with the request by Mr. Smith, provided a transcription of those same records when requested by the DPR to do so, and
offered the file to R.Y.'s daughter to be explained by them. Respondent has not challenged the authenticity of these records. He admitted at the hearing they were his, made contemporaneously with the events.
The major deficiency in Respondent's medical records is the failure to document his resolution or plan of treatment for R.Y. Respondent did not document any plan to address the causes and treatment of R.Y.'s developing symptomatology during 1986, i.e. weight loss, nausea and malnutrition, persistent back pain, persistent cough, orthopnea and dyspnea. "Good medical records are the foundation of the practice of medicine," DPR v. Roehm, M.D., 11
F.A.L.R. 860, 861 (DPR Oct. 26, 1988). The reason for keeping thorough medical records is so that "neutral third parties can observe what transpired during the course of treatment of a patient." Robertson v. DPR, Ibid at 1649. This is exactly what Dr. Tytler stated at hearing that he could not do from Respondent's medical records.
Respondent did not document his reasons for continuing to treat R.Y. with osteopathic manipulative therapy for persistent back pain, for the use of ACTH, Depo-medrol, orphenadrine, roboxin or testosterone; why he prescribed Erythromycin to R.Y., who already showed signs of hepatic dysfunction, or why he utilized Digoxin. Although Respondent indicated in his records that he had given R.Y. several drugs which could effect his electrolyte or blood pressure he never attempted to monitor their effects. In DPR v. Jamilla, 12 F.A.L.R. 544,
546 (DPR Dec. 28, 1989) the Board stated that although the medical records stated what was done, they did not justify the course of treatment of the patient because they did not reflect that the physician attempted to determine his patients drug level before resuming treatment.
Count III alleges that Respondent misrepresented or concealed a material fact during a phase of a licensing or disciplinary process or procedure, violating Section 459.015(1)(kk), Florida Statutes, (1988 Supp.), in that he added material to and deleted material from his written medical records when asked to provide a legible copy to the DPR. Petitioner has not proven this charge by clear and convincing evidence.
On May 26, 1988, Respondent was informed by the Investigator for DPR that a complaint had been lodged against him and an investigation initiated. On July 21, 1988, the Investigator sent Respondent's written office records to Respondent with the specific request to provide a typed or printed version as the copy she had was not legible, and to return a legible copy. Respondent responded on August 22, 1988, with what he designated as a "Transcription" of the chart of R.Y. Respondent does not deny that he added some medical notes and deleted others.
The added notations refer to R.Y.'s alleged reluctance to cooperate with Respondent's medical care, and one addition refers to sending fluid to a laboratory. Although all these added notations are material facts in dispute.
Respondent's deletions consist of his diagnosis and prescriptions pertaining to R.Y. Again, both diagnosis and treatment are material facts in dispute in this disciplinary process. Although Respondent may have attempted to conceal diagnosis and misrepresented other entries by attempting to make it appear they were a part of the original record, it was clear that they were not part of the original record but was a "transcription of the record."
The facts of the Department of Professional Regulation, Board of Medicine v. Jiminez, 10 F.A.L.R. 3579 (DPR May 5, 1988) are distinguishable from this case. There, the physician was charged with failing to file a report because he did not indicate his additions to the record were late entries, not because they were false. As a result, he was found guilty of failure to perform statutory obligations. In the present case, there is no evidence that the additions are other than self-serving statements, added by Respondent to bolster his defense. They were clearly later entries and not part of the original report. At no time did Respondent change the original record or the copies previously surrendered and thus, not a violation within the meaning of Section 459.015(1)(kk), Florida Statutes.
In recommending the appropriate penalty for Respondent's violation, the Disciplinary Guidelines set forth in Rule 21R-19.002, Florida Administrative Code have been considered, as well as mitigating and aggravating factors as enumerated in Rule 21R-19.003, Florida Administrative Code.
On August 8, 1988, in DPR cases 0038979 and 0037294, the Board of Osteopathic Medical Examiners disciplined Respondent by placing him on probation for a period of two years for violations which occurred in 1983. The Administrative Complaint reveals that Respondent was charged with failure to keep written medical records justifying his course of treatment of nine patients, and failure to practice osteopathic medicine with the level of care, skill and treatment recognized by a prudent, similarly situated physician in the same nine patients cases. The allegations of substandard care are very similar to the allegations in the instant case.
The range of penalties for a violation of Section 459.015(1)(y), Florida Statutes, when there has been prior disciplinary action allows for a fine up to $5,000.00 and reprimand and probation up to revocation of license. The range of penalties for a violation of Section 459.015(1)(p), Florida Statutes, when there has been prior discipline allows for a fine up to $1,000.00 and probation up to a maximum six month suspension.
By failing to adequately investigate the symptoms R.Y. was experiencing Respondent may have deprived him of a long, or at least a more comfortable, extension of his life. Respondent, by failing to inform R.Y. or his family that he had had no hospital privileges since 1983, and alleging that he had been forbidden to treat or otherwise pursue R.Y.'s health problems, has demonstrated a lack of the basic honesty essential to the osteopathic physician.
Based on the foregoing findings of fact and conclusions of law, it is recommended that Respondent be found guilty of violating Sections 459.015(1)(y) and (p), Florida Statutes. As punishment therefore, Respondent should pay a fine of $6,000.00 and his license to practice osteopathic medicine in the state of Florida should be suspended for a period of two years, followed by two years probation, upon such reasonable conditions as the Board may require.
RECOMMENDED this 26th day of April, 1991, in Tallahassee, Florida.
DANIEL M. KILBRIDE
Hearing Officer
Division of Administrative Hearings The Desoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1991.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4701
The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.
Petitioner's Proposed Findings of Fact:
Accepted in substance: Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12,
13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29(in part), 30,
31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 46, 47, 48, 50, 53(in
part), 54, 55 56, 57, 58, 59(in part), 60, 61, 62(in part), 63, 64, 65, 66, 67,
68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87,
88, 89(in part).
Rejected as hearsay or irrelevant: Paragraphs 45, 49, 51, 52, 53(in part), 59(in part), 62(in part), 89(in part).
Respondent's Proposed Findings of Fact:
Accepted in substance: Paragraphs 1, 2(in part), 3(e), 3(f)(in part), 3(g), 3(i).
Rejected as not supported by evidence: Paragraphs 2(in part), 3, 3(a), 3(d), 3(f)(in part), 3(h).
Rejected as argument or conclusions of law: Paragraphs 3(a), 3(b), 3(c), 3(d), 3(i).
COPIES FURNISHED:
Mary B. Radkins, Esquire Department of Professional
Regulation
Northwood Centre, Suite 60 1940 North Monroe Street
Tallahassee, Florida 32399-0792
John R. Feegel, Esquire John Sabella, Jr., Esquire
401 South Albany Avenue Tampa, Florida 33606
Bill Buckhalt, Executive Director Board of Osteopathic Medical Examiners Northwood Centre, Suite 60
1940 North Monroe Street Tallahassee, Florida 32399-0792
Jack L. McRay, Esquire General Counsel
Department of Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32399-0792
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:
ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.
| Issue Date | Proceedings |
|---|---|
| Apr. 26, 1991 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 08, 1991 | Agency Final Order | |
| Apr. 26, 1991 | Recommended Order | Respondent failed to exam and diagnose patient;improperly performed procedures ;failed to inform; failed to keep proper records; not guilty of concealment. |
DEPARTMENT OF HEALTH, BOARD OF OSTEOPATHIC MEDICINE vs PAUL S. GLASSMAN, D.O., 90-004701 (1990)
DEPARTMENT OF HEALTH, BOARD OF OSTEOPATHIC MEDICINE vs ALEXANDRA KONOWAL, D.O., 90-004701 (1990)
BOARD OF OSTEOPATHIC vs. WILFRED W. MIDDLESTADT, 90-004701 (1990)
DEPARTMENT OF HEALTH, BOARD OF OSTEOPATHIC MEDICINE vs ALAN SALTZMAN, D.O., 90-004701 (1990)
BOARD OF OSTEOPATHIC vs D. LEONARD VIGDERMAN, 90-004701 (1990)
