STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENNETH W. HOOVER, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 91-7526F

) DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, final hearing in the above-styled case was held in Tallahassee, Florida, on March 4, 1992, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Attorney Samantha D. Boge

2803 Rabbit Hill Road

Tallahassee, Florida 32312

For Respondent: Mary B. Radkins, Senior Attorney

Department of Professional Regulation 1940 N. Monroe Street

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is liable to Petitioner for attorneys' fees and costs under Section 57.111, Florida Statutes. By stipulation, including as to the reasonableness of fees and costs, the sole issue is whether the disciplinary proceeding that Respondent commenced against Petitioner was substantially justified or, if not, whetherspecial circumstances exist that would make the award unjust.

PRELIMINARY STATEMENT

By Administrative Complaint filed May 16, 1991, Respondent commenced a disciplinary proceeding against Petitioner, which was identified as DOAH Case No. 91-4068.

On November 6, 1991, Respondent filed a Notice of Voluntary Dismissal, and DOAH Case No. 91-4068 was closed by Order Closing File entered November 13, 1991. On November 21, 1991, Petitioner filed a Petition for Costs and Fees.

The petition seeks attorneys' fees of $9369 and costs of $971.

At the hearing, Respondent called one witness, and Petitioner called none.

Petitioner offered into evidence 13 exhibits, and Respondent offered into evidence 11 exhibits. All exhibits were admitted except Respondent Exhibits 5 and 10, which were proffered. The undersigned took official notice of the contents of DOAH Case No. 91-4068.

A transcript was filed March 18, 1992. Each party filed a proposed final order. Treatment accorded the proposed findings is detailed in the appendix.

FINDINGS OF FACT

1. On or about August 15, 1988, Respondent received a complaint from Walt Disney World questioning the "type[,] frequency and cost" of treatment that Petitioner was providing to a patient. Petitioner is employed as a physician by the Central Florida Health Center and was providing treatment to the patientin response to allergic-type complaints. As the letter acknowledges, Walt Disney World had denied the patient's claim for Workers Compensation benefits.

   
   

2. By December 11, 1989, Respondent's investigator had completed an final investigative report on the matter. The cover sheet of the report notes that Petitioner had not responded to the charges as of December 4, 1989. The cover sheet also notes that the Social Security Administration had determined, by decision dated September 9, 1989, that the patient had suffered a "disability" since July 22, 1987. The cover sheet cites from the decision as follows:

   
   

   "the medical evidence establishes that the claimant has respiratory allergies, especially to molds . . ." and "the claimant's allegations of respiratory distress, nausea, anxiousness, rapid heartbeat, confusion, headaches, and loss of coordination and strength are supported by the objective and clinical laboratory findings of record and are credible."

   
   

3. Summarizing an interview on October 26, 1989, with the manager of another allergy clinic in the Orlando area, the investigative report states that the manager stated that fee schedule for the Central Florida Health Center listed fees for patient evaluation that were "high" and for interdermal tests that were "excessive."

   
   

4. The investigative file accompanying the investigative report contains numerous documents relating to the patient and his diagnoses and treatments. One document appears to be an independent medical examination referenced by WaltDisney World in its letter to Respondent dated August 15, 1988.

   
   

5. By letter dated May 16, 1988, Richard F. Lockey, M.D., of the Allergy, Asthma and Immunology Associates of Tampa Bay, reported the results of his examination of the patient on April 5 and 22, 1988. Dr. Lockey found that the patient "does not have nor suffer from any allergic disease." Dr. Lockey found, among other diagnoses, "vasomotor rhinitis with possible allergic rhinitis." Expressly disagreeing with Petitioner's "impression that [the patient] has multiple problems secondary to his environment at Disneyworld," Dr. Lockey recommended that the patient could return to work without hazard to his health and needed psychiatric counselling to reassure him that he is physically healthy. Dr. Lockey's letter accompanies a complete history that he took of the patient.

6. By letter dated December 1, 1989, and also contained in the investigative file, Diane S. Storey, D.O., employed with Petitioner at the Central Florida Health Center, explained why the only appropriate treatment for the patient was immunotherapy for long-term exposure to mold byproducts. The letter refers to the corroborating opinion of Douglas H. Sandberg, M.D.

   
   

7. Dr. Sandberg's undated report, which is also contained in the investigative file, includes a comprehensive history. Dr. Sandberg, who is a Professor of Pediatrics and Director of the Division of Gastroenterology and Nutrition at the University of Miami Children's Hospital Center, concludes thatPetitioner has "an excellent grasp of [the patient's] overall problems and should be able to help him significantly and to have him back to work in a few weeks." The letter also states: "Testing and treatment with [Petitioner] has shown that [the patient] does have environmentally triggered illness or complex allergy."

   
   

8. By memorandum to the probable cause panel dated February 23, 1990, Respondent noted the allegations that Petitioner violated Section 458.331(1)(t) and (n). The memorandum recommends that the case is "legally sufficient and should be reviewed by an expert to determine whether [Petitioner] operated within the standard of care, if there is a pattern of excessive and unnecessary testing and if he over-charged for his services."

   
   

9. The probable cause panel agreed to refer the file to an expert. By letter dated June 18, 1990, Respondent requested Michael P. Pacin, M.D., to offer an expert opinion as to several questions concerning Petitioner's diagnosis and treatment of the patient. Respondent gave Dr. Pacin the entire investigative file to review.

   
   

10. By letter dated September 13, 1990, Dr. Pacin, who is a board- certified internist and immunologist, noted the differing opinions of Drs. Lockey and Sandberg. The letter states:

    
    

    there can be more than one opinion regarding treating allergy patients. Dr. Lockey was trained in the same manner as I was, and I agree almost completely with everything thathe has said regarding [the patient's] treatment. On the other hand, Dr. Sandberg's views are quite contrary to mine, although they are along the lines of those which [Petitioner] has followed. [Petitioner] and Dr. Sandberg practice what is known as environmental medicine, a field which is quite controversial and not very well substantiated in the medical literature. I believe [the patient] is a very sick man; however, I do not believe, based upon the information given to me, that much of his problem is due to allergy. Most of the testing and treatment provided to him by [Petitioner] was probably unnecessary, but what surprises me is the fact that [Petitioner] is a psychiatrist who practices allergy and seems possibly to have misdiagnosed a patient with a psychiatric problem as having an allergy problem.

    
    

11. The letter describes environmental medicine, which Petitioner practices, as

    a very unsubstantiated theory. These patients, as in the case of [the patient], have very subjective symptoms, some of which can be explained by other medical problems and some of which cannot be explained medically but are quite real to the patient and do, indeed, contribute to their disability. It is quite hard to define what makes them ill and to know how to treat them.

    
    

12. Responding to the specific questions asked, the letter states:

    
    

    I do not feel that the [patient's] condition was adequately assessed. Based upon Dr. Lockey's assessment, I, too, feel that the [patient] is suffering from multiple psychiatric problems and that any allergy problems he has are minimal and not contributing to his overall problem. . . . I believe [Petitioner] did not treat the patient in an appropriate manner--i.e., all of the allergy testing and treatment was probably not necessary, and even if they were, they were far in excess of what would be appropriate for a patient who did haveallergy problems.

    . . . I do believe [the insurance company was] exploited for financial gain by [Petitioner]. Even though [Petitioner] has continued to provide medical care to the patient at no cost, I think this is only being done to cover up the exploitation that has preceded it. . . . I do not believe that [written medical records kept by Petitioner] justify the course of treatment of the patient. The test results were far from conclusive, especially based on the patient's history, to warrant such an extensive treatment regime for allergies.

    
    

13. Dr. Pacin's letter responds to the concluding question posed by Respondent's letter as follows:

    
    

    [Petitioner] did not meet the "standard of care" as I and my colleagues practice allergy. I believe his diagnosis was wrong and the treatment, therefore, also was wrong. I believe the treatment would have been wrong even if the diagnosis had been correct, as it was overdone and the patient was being exploited for financial gain. This patient may have had some minimal allergy problems; however, he needs a complete psychiatric evaluation to better have an idea [sic] of what his true medical problems are. The fact that [Petitioner] is a psychiatrist tells me that this case should also be evaluated by a psychiatrist to see if he meets the "standard of care" in the field of psychiatry. It seems that [Petitioner] has missed the psychiatric diagnosis or possibly is treating the patient for allergies because that diagnosis gave him the opportunity to charge for services which would provide a greater cash flow. The only justification that I could find for [Petitioner's] deviating from the standard of care was the fact that another, rather

    eminent physician agreed with his diagnosis and treatment. However, as I stated above, this is due to the fact that Dr. Sandberg, as well as [Petitioner], seemed to be practicing in the very controversial field known as clinical ecology [also known as environmental medicine].

    
    

14. By letter dated January 30, 1991, Respondentrequested Dr. Pacin to elaborate upon:

    
    

    those factors which lead you to believe that the patient was suffering from multiple psychiatric problems and that any allergy problems were minimal[;]

    . . . which tests and treatment performed by [Petitioner] were either unnecessary or "far in excess of what would be appropriate for a patient who did have allergy problems"[;] . . . which medications were inappropriate for this patient and whether the quantities given were also inappropriate[; and] . .

    . what test results would have justified this treatment and . . . [what] tests not performed by [Petitioner] . . . could have definitely established if the patient was actually suffering from these allergies?

    
    

15. By letter dated February 12, 1991, Dr. Pacin responded to these questions. The letter states that he could not say that the patient's symptoms were psychiatric and had thus recommended a psychiatric evaluation. Dr. Pacin explained that he had based his finding of "excess treatment" upon the billings and services that he had reviewed. The letter states that the patient did not suffer from sufficiently severe allergy problems to warrant immunotherapy. As to the last question, Dr. Pacin opined that "missing symptoms," not missing test results, failed to "warrant allergy testing and allergy immunotherapy."

    
    

16. The case was considered by the probable cause panel on May 4, 1991, with a recommendation from Respondent that probable cause be found. Respondent's attorney adequately summarized Dr. Pacin's findings. Expressly relying upon Dr. Pacin's report, one panel member moved to find probable cause and file an Administrative Complaint alleging violations of 458.331(1)(t), (m), and (n). The panel approved the motionunanimously.

    
    

17. Pursuant to the probable cause finding, Respondent filed an Administrative Complaint on May 16, 1991, in DOAH Case No. 91-4068. Corresponding to the violations cited by the probable cause panel, the Administrative Complaint alleges that Petitioner failed to practice medicine in accordance with a reasonable standard of care due to the misdiagnosis of a patient, failed to keep medical records justifying the course of treatment of a patient, and exploited a patient for financial gain. On November 6, 1991, Respondent filed a Notice of Voluntary Dismissal, and DOAH Case No. 91-4068 was closed by Order Closing File entered November 13, 1991.

    
    

18. The opinion of Dr. Pacin adequately addressed the differing schools and training of Petitioner and Dr. Sandberg, on the one hand, and Drs. Lockey and Pacin, on the other hand. After doing so, Dr. Pacin identified clearly and unequivocally what he opined were deficiencies in Petitioner's diagnosis and, in particular, treatment of the patient. There was a reasonable basis for Dr. Pacin's opinions. Other evidence existed concerning the possible

    unreasonableness of the fee schedule. Although Respondent might anticipate some difficulty overcoming by clear and convincing evidence what may be a legitimate difference of professional opinion concerning diagnosis and treatment, Respondent had a reasonable basis in law and fact for filing the Administrative Complaint.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

20. Pursuant to the Florida Equal Access to Justice Act, certain prevailing small business parties are entitled to an award of attorneys' fees and costs, not in excess of $15,000, for proceedings commenced by state agencies. Section 57.111.

    
    

21. By stipulation of the parties, the sole issue is whether Respondent was "substantially justified" in filing the Administrative Complaint against Petitioner. "A proceeding is 'substantially justified' if it had a reasonable basis in law and fact at the time it was initiated by a state agency." Section 57.111(3)(e). The burden is on Respondent to show that the proceeding was substantially justified or that an award of fees and costs would be unjust. Department of Professional Regulation v. Toledo Realty, Inc., 549 So. 2d 715 (Fla. 1st DCA 1989). 4

    
    

22. Respondent has met its burden of showing that the filing of the Administrative Complaint was substantially justified.

ORDER

Based on the foregoing, it is hereby

ORDERED that the petition seeking attorneys' fees and costs is dismissed. DONE and ORDERED this 31st day of March, 1992, in Tallahassee, Florida.

ROBERT E. MEALE

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 31st day of March, 1992.

APPENDIX

Treatment Accorded Proposed Findings of Petitioner

1-7 (first sentence): adopted or adopted in substance.7 (remainder): rejected as recitation of evidence, subordinate, and irrelevant.

8 (first sentence): adopted.

8 (remainder)-9: rejected as subordinate and recitation of evidence.

10 (first sentence): rejected as subordinate.10 (second sentence): adopted in substance.

11: rejected as subordinate. 12: adopted.

13-15: rejected as subordinate and irrelevant. 16-19: adopted.

20: rejected as irrelevant and subordinate. 21: adopted.

22: rejected as unsupported by the appropriate weight of the evidence. 23-25: rejected as subordinate and irrelevant.

26: rejected as unsupported by the appropriate weight of the evidence.

Treatment Accorded Proposed Findings of Respondent 1-11: adopted or adopted in substance.

12: rejected as subordinate and repetitious.

13-21: adopted or adopted in substance. 22: rejected as subordinate.

23-24: adopted or adopted in substance.

25-28: rejected as subordinate and recitation of evidence. 29-31: adopted.

32-36: rejected as irrelevant. 37: adopted.

38: rejected as irrelevant.

COPIES FURNISHED:

Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Dorothy Faircloth, Executive Director Board of Medicine

1940 North Monroe Street Tallahassee, FL 32399-0792

Attorney Samantha D. Boge 2803 Rabbit Hill Road Tallahassee, FL 32312

Mary B. Radkins, Senior Attorney Department of Professional Regulation 1940 N. Monroe Street

Tallahassee, FL 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.

Docket for Case No: 91-007526F

Orders for Case No: 91-007526F