STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-4368

)

SUBHASH C. GUPTA, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly appointed Hearing Officer, William R. Dorsey, Jr., held a public hearing in the above-styled case on February 25 and 26, 1993, in Fort Lauderdale, Florida. On August 16, 1993, a "Notice of Unavailability of Hearing Officer and Order of Assignment of New Hearing Officer" was entered in the above-styled case which reassigned the matter to Hearing Officer Claude B. Arrington pursuant to Section 120.57(1)(b)11, Florida Statutes.

APPEARANCES

For Petitioner: Sandra A. Wolpe, Esquire

Senior Attorney

Department of Professional Regulation 6261 NW 6th Way, Suite 110

Fort Lauderdale, Florida 33309

Barbara Whalin Makant, Esquire Staff Attorney

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Steven L. Josias, Esquire

James A. Cherof, Esquire Josias & Goren

3099 East Commercial Boulevard Suite 200

Fort Lauderdale, Florida 33308 STATEMENT OF THE ISSUE

Whether disciplinary action should be taken against Respondent's license to practice medicine in the State of Florida based on the alleged violations of Sections 458.331(1)(m) and 458.331(1)(t), Florida Statutes (1987), set forth in the Amended Administrative Complaint.

PRELIMINARY STATEMENT

On February 18, 1992, Petitioner filed an Amended Administrative Complaint against Respondent, Subhash Gupta, M.D., which contained factual allegations pertaining to seven separate patients and which alleged in twelve counts certain violations of Sections 458.331(1), Florida Statutes.

For ease of reference, the patients will be referred to in this Recommended Order numerically. The patients were, at times, referred to at the formal hearing by their initials. The following patient numbers correspond with the following patient initials: Patient #1 is C. S.; Patient #2 is R. B.; Patient #3 is B. B.; Patient #4 is E. K.; Patient #5 is J. T.; Patient #6 is D. Y.; and Patient #7 is C. R.

The following summary of the Amended Administrative Complaint is intended as a guide only. Any question as to the contents of the Amended Administrative Complaint should be resolved by reading the entire Amended Administrative Complaint.

Count One pertained to Patient #1 and alleged that Respondent violated Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similarly situated physician by inappropriately injecting Patient #1 with adrenaline when there were no reasons or justification to do so, and by obtaining esophageal brushings from Patient #1 without justification.

Count Two also pertained to Patient #1 and alleged that Respondent violated Section 458.331(1)(m), Florida Statutes, by failing to document an adequate history and physical examination, by failing to document an adequate procedure note stating why he injected Patient #1 with adrenaline, and by failing to justify in the medical records the taking of esophageal brushings.

Count Three pertains to Patient #2 and charges that Respondent violated the provisions of 458.331(1)(t), Florida Statutes, by performing an upper endoscopy without appropriate justification and by inappropriately injecting Patient #2 with epinephrine.

Count Four pertains to Patient #2 and charges that Respondent violated the provisions of Section 458.331(1)(m), Florida Statutes, by failing to provide a formal consultation note on Patient #2's chart, by failing to adequately justify the indications for performing an upper endoscopy, by poorly documenting the findings of the endoscopy, and by poorly documenting the treatment of the findings and reasons for the treatment.

Count Five pertains to Patient #3 and charges that Respondent violated the provisions of Section 458.331(1)(t), Florida Statutes, by failing to cancel Patient #3's barium enema scheduled to be done after a colonoscopy and by inappropriately scheduling a re-check colonoscopy when there was no valid indication for the procedure.

Count Six pertains to Patient #3 and charges that Respondent violated the provisions of Section 458.331(1)(m), Florida Statutes, by failing to provide a formal consultation note on Patient #3's chart, by failing to provide adequate indications for the colonoscopy on the procedure note, and by failing to provide an adequate history pertaining to Patient #3.

Count Seven pertains to Patient #4 and charges that Respondent violated the provisions of Section 458.331(1)(t), Florida Statutes, by inappropriately performing an upper endoscopy on Patient #4 when such a procedure was contra- indicated by the patient's X-ray results, and by inappropriately injecting mildly bleeding areas with epinephrine during a subsequent colonoscopy.

Count Eight pertains to Patient #4 and charges that Respondent violated the provisions of Section 458.331(1)(m), Florida Statutes. The factual allegations are that Respondent's handwritten consultation report was inadequate in that it was difficult to read and failed to include any significant medical history; Respondent failed to adequately document his thought process on Patient #4's chart; Respondent failed to keep written medical records justifying performing any upper endoscopy when such a procedure was contra-indicated by the X-ray results; and Respondent failed to keep written medical records on Patient #4 justifying performing a colonoscopy and injecting epinephrine.

Count Nine pertains to Patient #5 and charges that Respondent violated the provisions of Section 458.331(1)(m), Florida Statutes, by failing to keep adequate written medical records pertaining to procedures performed on this patient.

Count Ten pertains to Patient #6 and charges that Respondent violated the provisions of Section 458.331(1)(t), Florida Statutes, by providing inadequate follow-up care to an abnormal barium enema.

Count Eleven pertains to Patient #6 and charges that Respondent violated the provisions of Section 458.331(1)(m), Florida Statutes, based on the allegations that Patient #6's chart lacked a formal consultation note, lacked adequate documented indications for a colonoscopy, and lacked documentation as to why the colonoscope could not be passed to the cecum.

Count Twelve pertains to Patient #7 and charges that Respondent violated the provisions of Section 458.331(1)(m), Florida Statutes, based on the allegations that Respondent did not keep adequate written medical records by failing to document an adequate history as an indication for Patient #7's colonoscopy and by failing to document any follow-up plans for a repeat colonoscopy.

Respondent timely requested a formal hearing, and this proceeding followed.

At the commencement of the hearing the Department represented that the penalty that it was seeking is a fine of $15,000.00 and thirty (30) hours of continuing medical education, fifteen (15) hours in gastroenterology and fifteen

(15) hours in risk management. Prior to the formal hearing the parties executed a Prehearing Stipulation. In the Prehearing Stipulation both parties agreed that the Department of Professional Regulation has the burden to establish the existence of grounds for disciplinary action against Respondent. The parties further stipulated that the standard of proof is "the greater weight of the evidence" standard and not the "clear and convincing evidence" standard since the Department is not seeking revocation or suspension of Respondent's license to practice medicine. The stipulation of the parties is also the basis for certain of the findings of fact contained herein.

At the formal hearing Petitioner presented the testimony of two witnesses: Cathy Schmidt, Records Custodian at Imperial Point Medical Center, and Paul B. Goldberg, M.D. Petitioner offered five exhibits into evidence, all of which were accepted into evidence.

Respondent presented the testimony of three witnesses: James J. Cerda, M.D.; Arthur L. Eberly, Jr., M.D.; and Satya Pal Singh, M.D. Respondent offered three exhibits into evidence, all of which were accepted into evidence.

Dr. Goldberg, Dr. Cerda, Dr. Eberly, and Dr. Singh were accepted as expert witnesses. Dr. Paul Goldberg is a physician licensed in the State of Florida, certified in internal medicine and gastroenterology. Dr. Goldberg is a gastroenterologist engaged in private practice in Daytona Beach, Florida. His Curriculum Vitae was admitted in evidence, and he was accepted as an expert in the specific area of gastroenterology.

Dr. Cerda was certified by the American Board of Internal Medicine in 1969 and by the subspeciality board in gastroenterology in 1971. Dr. Cerda is licensed by the State of Florida, State of Pennsylvania and the State of Maryland. Dr. Cerda has been a Professor of Medicine at the University of Florida, Shands Teaching Hospital since 1972. In addition to his teaching responsibilities, he supervises a University research laboratory and has had extensive clinical practice, seeing approximately 100 to 120 patients per week. Dr. Cerda is a retired Rear Admiral in the United States Naval Reserve, Assistant Force Medical Officer and serves as consultant to the Surgeon General for gastroenterology for the United States Navy. Dr. Cerda's Curriculum Vitae was admitted in evidence, and he was accepted as an expert witness in the field of gastroenterology and internal medicine.

Dr. Eberly is the Program Director for Medical Education for the North Broward Hospital District and is engaged in the private practice of medicine in Fort Lauderdale, Broward County, Florida, in a general family practice. Dr.

Eberly is certified by the American Board of Family Practice and by the National Board of Medical Examiners. Dr. Eberly has been licensed in the State of Florida since 1960 and is also licensed in the State of South Carolina. He is an Associate Professor at the University of Miami and has been Director of Indigent Care and the Director of Family Practice for the North Broward Hospital District. Dr. Eberly was, at the time of the formal hearing, the President- Elect of the Florida Medical Association. Dr. Eberly's Curriculum Vitae was admitted in evidence, and he was accepted as an expert in medical record keeping.

Dr. Singh is a gastroenterologist with offices in Broward County, Florida and holds medical licenses in Florida, New York, Virginia, and the District of Columbia. Dr. Singh is board certified in internal medicine and gastroenterology. Dr. Singh's Curriculum Vitae was admitted in evidence, and he was offered as an expert witness in gastroenterology and medical record keeping.

Respondent asserted five affirmative defenses to the Amended Administrative Complaint. Petitioner moved to strike the affirmative defenses. Hearing Officer Dorsey ruled at the formal hearing that the first four affirmative defenses asserted by Respondent were not true affirmative defenses. He further ruled that the fifth affirmative defense required that Petitioner establish what constitutes the standard of care Respondent allegedly failed to meet and what constitutes the record keeping standard Respondent allegedly failed to meet.

The "Notice of Unavailability of Hearing Officer and Order of Assignment of New Hearing Officer" entered in this proceeding on August 16, 1993, announced that Mr. Dorsey is unavailable to complete the Recommended Order in this case because he has left the employ of the Division of Administrative Hearings. The

Notice reassigned the matter to Hearing Officer Claude B. Arrington pursuant to Section 120.57(1)(b)11, Florida Statutes, and provided, in part, as follows:

The parties are accorded ten (10) days from the date of this order to advise the Hearing Officer as to whether they contend any additional evidence or argument is warranted. Failure to so advise the new Hearing Officer will be construed as a party's acknowledgment that no additional evidence or argument is necessary, and that the Hearing Officer may write the recommended order based on the existing record.

Neither party has filed a timely assertion that additional evidence or argument is warranted in this proceeding, and the time for filing such assertions has expired. Respondent's motion to dismiss this proceeding because of the delay in the entry of the Recommended Order is hereby denied.

A transcript of the proceedings has been filed. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30 and Chapters 455 and 458, Florida Statutes.

   
   

2. Respondent is a licensed physician in the State of Florida and holds license number ME 0043566.

   
   

3. Respondent has never been the subject of a previous complaint from the Department of Professional Regulation (now the Department of Business and Professional Regulation).

   
   

4. No patient involved in this proceeding incurred injury as a result of any procedure performed by Respondent or as a result of any medical record kept by Respondent, nor did any patient claim injury or make a complaint against Respondent.

   
   

5. Respondent derived no financial gain from any act or omission alleged in the administrative complaint.

   
   

6. All events pertaining to this proceeding occurred in 1987 or 1988. Prior to February 8, 1988, the effective date of Chapter 88-1, Laws of Florida, Section 458.331(1), Florida Statutes provided, in pertinent part, as follows:

   
   

   1. The following acts shall constitute grounds for which the disciplinary action specified in subsection (2) may be taken.

      * * *

      (m) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, and test results.

      * * *

      (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is acceptable under similar conditions and circumstances. The board shall give great weight to the provisions of s. 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 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 to require more than one instance, event, or act.

      
      

7. Section 25 of Chapter 88-1, Florida Statutes, became effective February 8, 1988, and amended the pertinent provisions of Section 458.311(1), Florida Statutes, to read as follows:

   
   

   1. The following acts shall constitute grounds for which the disciplinary action specified in subsection (2) may be taken.

      * * *

      (m) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, test results, records of drugs prescribed, dispensed, or administered, and reports of consultations and hospitalizations.

      * * *

      (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is acceptable under similar conditions and circumstances. The board shall give great weight to the provisions of s. 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 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 to require more than one instance, event, or act. Nothing in this paragraph shall be construed to require that a physician be incompetent to practice medicine in order to be disciplined pursuant to this paragraph.

      
      

8. At the times pertinent to this proceeding, Petitioner had adopted no rules pertaining to the keeping of records by a licensed physician.

   
   

9. Imperial Point Medical Center (Imperial Point) is a hospital located in Broward County, Florida. Unless otherwise indicated, all hospital records referred to in this matter are from Imperial Point.

   
   

   PATIENT #1 (C.S.)

   
   

10. On August 8, 1988, Respondent performed an upper endoscopy on Patient #1, a male, who was 44 years old at the time of the procedure. This procedure was performed at Imperial Point on an outpatient basis. An upper endoscopy is the viewing of the mouth, the pharynx, the esophagus, the stomach and portions of the duodenum with a fiber optic instrument that allows direct visualization of the lining of these structures and allows therapeutic maneuvers.

    
    

11. The records kept of this procedure performed on Patient #1 on August 8, 1988, include an outpatient hospital record entitled "Operative Report". The description of the procedure portion of this report includes the following: ".

    . . The gastric portion was infiltrated with 1:1,000 adrenaline . . ."

    
    

12. Adrenaline, also known as epinephrine, is a vasoconstrictor that can be used to control minor bleeding and oozing. It is used regularly in gastroenterology to treat actively bleeding lesions or ulcers with evidence of recent bleeding prior to performing a more permanent type of hemostasis. Dr. Goldberg testified that epinephrine was usually injected into these areas by a needle. Dr. Goldberg was of the opinion that epinephrine should not be used in cases of trivial bleeding or oozing or after routine biopsies unless there is an imminent danger of a significant arterial bleed. The testimony of Dr. Cerda and Dr. Singh established that spraying epinephrine over an area that is subject to bleeding is a precautionary technique some gastroenterologists follow. Dr. Singh and Dr. Cerda have both either used this technique, or have observed its use by other physicians. The expert witnesses agreed that the injection by needle of epinephrine into the gastric wall would be a procedure that falls below an established standard of care.

    
    

13. There was a dispute among the expert witnesses as to how the term "infiltrated" should be interpreted. Petitioner contends that the term "infiltrated" is synonymous with the term "injected", and that the medical records should be construed to mean that Respondent injected the gastric wall with a needle, and therefore practiced below the standard of care. This contention is consistent with the testimony of Dr. Goldberg. Respondent asserts that the medical record should be construed to mean that Respondent sprayed the gastric wall as a precautionary measure. This contention is consistent with the testimony of the expert witnesses who testified on behalf of the Respondent.

    
    

14. This dispute is resolved by finding that the term "infiltrated" does not have the same meaning as the term "injected" and does not prove that Respondent injected Patient #1's gastric wall with a needle. This conclusion is based, in part, on the definition of the term "infiltrate" and on the context in

    which epinephrine is sometimes administered by gastroenterologists during this type procedure. According to The American Heritage Dictionary of the English Language, the term "infiltrate" means to pass a liquid or a gas into something through its interstices or to permeate with a liquid or gas passed through interstices. Dorland's Illustrated Medical Dictionary, Twenty Sixth Edition (Dorland) has a similar definition of the term "infiltrate". According to Dorland, an "interstice" is small interval, space, or gap in a tissue or structure. According to Dorland, the term permeate means to penetrate or pass through, as through a filter. Also according to Dorland, the term inject means the act of forcing a liquid into a part, as into the subcutaneous, the vascular tree, or an organ. Based on these definitions, it is found that the use of the term "infiltrate" is more consistent with the practice of spraying epinephrine onto the gastric wall, and that the use of the term "infiltrate" does not prove that Respondent injected the epinephrine into the gastric wall with a needle.

    It is found that Petitioner failed to prove that the use of epinephrine was improper or that the manner in which Respondent used the epinephrine during the subject procedure was improper. Since Petitioner failed to prove that Respondent injected Patient #1 with epinephrine, its charge that Respondent failed to document his reasons for doing so must also fail.

    
    

15. A pathology report dated August 8, 1988 contained in the medical file provided a pathological diagnosis as follows: "esophageal brushings: no evidence of malignancy." Brushings are the result of passing a small brush through the biopsy channel of an endoscope, rubbing it over an area of concern that might have either a malignancy or a fungal infection, taking the brush out of the scope, wiping it on a microscopic slide, and sending the slide to the pathologist for cytological examination.

    
    

16. The reference to the "esophageal brushings" in the pathology report was error. The brushings taken from Patient #1 during the procedure on August 8, 1988, came from the stomach, a fact obvious to all of the expert witnesses in light of the operative report and operative drawing made by Respondent. Because Petitioner failed to prove that Respondent took esophageal brushings from Patient #1, its charge that he failed to properly document his reasons for doing so must also fail. 1/

    
    

17. Petitioner proved that Respondent's medical records, including his office notes as to Patient #1 failed to contain an adequate medical history for Patient #1 and failed to reflect the findings of any physical examination of Patient #1 by Respondent. Petitioner further proved that such failures fall below an established standard of care as alleged in Count Two of the Amended Administrative Complaint.

    
    

    PATIENT #2 (R.B.)

    
    

18. Patient #2 was a 70 year old male seen by Respondent for a consultation because of the patient's history of hematemesis, which is the vomiting of blood.

    
    

19. Respondent prepared a formal consultation note dated September 25, 1988. The consultation note contains a description of the patient's condition, references a rectal exam, which was positive for blood, and indicates that a physical examination of the patient was made. Respondent again saw the patient on September 27, 1988 and performed an upper endoscopy.

    
    

20. Dr. Goldberg was critical of the medical records kept by Respondent as to this procedure and was of the opinion that the medical records were

    inadequate. Other, equally credible expert witnesses were of the opinion that the medical records provided sufficient information to document the procedure. While it may be concluded that Respondent's medical records could be improved, it is found that Petitioner failed to prove that the medical records pertaining to this patient were inadequate. It is further found that Petitioner failed to prove the standard by which the adequacy of medical records are to be judged, other than the pertinent statutory standards set forth above.

    
    

21. The records kept of this procedure reflect that Respondent "infiltrated" Patient #2 with epinephrine. This is the identical dispute over the meaning of the term "infiltrated" that pertained to Patient #1 as discussed above. For the reasons given in resolving the dispute as it pertains to Patient #1, it is found that the term "infiltrated" does not have the same meaning as the term "injected" and that the use of the term does not prove that Respondent administered the epinephrine by injecting Patient #2 with a needle. It is found that Petitioner failed to prove that the use of epinephrine was improper or that the manner in which Respondent used the epinephrine during the subject procedure was improper. Since Petitioner failed to prove that Respondent injected Patient #2 with epinephrine, its charge that Respondent failed to document his reasons for doing so must also fail.

    
    

    PATIENT #3 (B.B.)

    
    

22. Patient #3, a 65 year old female was admitted to Imperial Point with chest pains by her physician, a Dr. Fanfan. Patient #3 had a history of cancer which included the prior surgical removal of a tumor. On October 3, 1988, Respondent performed a colonoscopy of Patient #3.

    
    

23. A colonoscopy is an examination of the colon from the anus to the ileocecal valve using a fiber optic instrument. A colonoscopy is indicated to evaluate abnormal X-rays, changes in bowel habits, evidence of bleeding, suspicions of inflammation, tumors, or polyps. Respondent adequately performed the procedure on Patient #3. The colonoscopy detected that Patient #3 had polyps. Subsequent laboratory results established that these were hyperplastic polyps that required no follow-up. Had the polyp been an adenomatous polyp, which is a true neoplasm with malignant potential, a follow-up for recolonoscopy would have been appropriate in one year. Prior to receiving the pathology reports, on the polyp, Respondent recommended a six month follow-up for the patient. This follow-up recommendation was appropriate at the time it was made. Petitioner failed to prove that the recommendation that a follow-up be performed was below an established standard of care. Petitioner failed to prove that the recommendation that the follow-up for this patient with a history of cancer be in six months as opposed to one year fell below an established standard of care.

    
    

24. The barium enema for this patient was originally scheduled by the attending physician, Dr. Fanfan. Dr. Fanfan clearly wrote a note on the same day following Respondent's report of the colonoscopy that the barium enema was pending, yet the attending physician did not cancel the barium enema. There is no disagreement among the experts that the barium enema was unnecessary in light of the findings of the colonoscopy. It is medically unnecessary and inappropriate for both tests to be performed on the same day.

    
    

25. Dr. Goldberg was of the opinion that Respondent was responsible for the patient once he began his consultation and that Respondent should have canceled the barium enema. Dr. Cerda, Dr. Eberly and Dr. Singh were of the opinion that the attending physician was responsible for scheduling the barium enema and that the attending physician or the radiologist should have canceled

    the barium enema. Dr. Eberly testified that as the primary care physician, the admitting physician is the "captain of the ship" and has the responsibility to make final determinations with respect to tests of this nature. Because of the conflicting testimony from equally credible expert witnesses, it is found that Petitioner failed to prove that Respondent violated an established standard of care by not cancelling Patient #3's enema.

    
    

26. Dr. Goldberg was of the opinion that Respondent's medical records pertaining to Patient #3 were inadequate. He had several criticisms of the records. Dr. Goldberg opined that there should have been a formal consultation note on Patient #3's chart that included past history, present illness, review of systems, allergies, pertinent laboratories, a thorough organ specific or system examination, an impression, an adequate discussion of the consultant's impression and the consultant's plans. He opined that the indications for Patient #3's procedure were inadequately dictated on the procedure notes and that Respondent's history pertaining to Patient #3 was inadequate because there was no pertinent review of systems or past history, no mention of the previous tumor, no mention of allergies, and an extremely scant examination. Other, equally credible expert witnesses were of the opinion that the medical records were adequate. It is found that Petitioner failed to prove the standard by which the adequacy of this patient's medical records are to be judged, other than the pertinent statutory standards set forth above. While it may be concluded that Respondent's medical records could be improved, it is found that Petitioner failed to prove that the medical records fell below an established standard of acceptability.

    
    

    PATIENT #4 (E.K.)

    
    

27. On October 4, 1988, Patient #4, a 92 year-old female, was admitted to the hospital with an acute onset of vomiting, dehydration, and abdominal pain. Respondent was asked by Patient #4's attending physician to evaluate Patient #4 for a potential small bowel obstruction following an X-ray that was consistent with a small bowel obstruction. Respondent performed an upper endoscopy on Patient #4 on October 7, 1988.

    
    

28. An obstruction of the intestines is a blockage in the large or small intestine. The bowel behind the blockage may become inflated with fluid or air and may be seen on X-ray. The obstruction may result from a variety of abnormalities.

    
    

29. Dr. Goldberg was of the opinion that the upper endoscopy was contra- indicated and potentially dangerous to the patient because of the X-ray indicating a complete bowel obstruction. Dr. Goldberg was also of the opinion that an upper endoscopy should be used only under compelling circumstances if there is a partial bowel obstruction. Dr. Goldberg was of the opinion that Respondent did the right tests on Patient #4, but in the wrong order since he did not first rule out an obstruction.

    
    

30. Prior to performing the upper endoscopy Respondent monitored the patient for several days. During that time period, examinations indicated that the patient was having bowel movements. Both the attending physician's notes, Respondent's notes, and the nurse's notes indicate positive bowel signs on October 5 and 6, indicating that there was not a complete bowel obstruction.

    
    

31. Respondent ordered a Golytely preparation administered to the patient, which usually consists of one or two liters of non-absorbable solution that basically washes the bowel out. That preparation would have been improper with

    a complete bowel obstruction. Dr. Goldberg was of the opinion that the use of a Golytely prep in this patient was a gross judgment error. Dr. Singh was of the opinion that there was no contra-indication for using the preparation in this situation.

    
    

32. Petitioner failed to prove that Patient #4 had a complete bowel obstruction or that the procedure, including the use of the Golytely preparation, violated an established standard of care. It is found that Respondent was acting within the scope of his discretion as the consulting physician to order the administration of the Golytely preparation and to perform the upper endoscopy.

    
    

33. On October 11, 1988, Respondent performed a colonoscopy on Patient #4. Respondent stated on the operative report that the colonoscopy was indicated because of diverticulitis. Diverticulitis was not mentioned in any of Respondent's notes concerning Patient #4, and there was no notation as to the reasons Respondent thought the patient had diverticulitis. Although Respondent failed to document why he felt that diverticulitis was an appropriate indication for the colonoscope, there is no dispute that a colonoscope was, in fact, indicated. Further, the colonoscope established that the pretest diagnosis of possible diverticulitis was not incorrect. The colonoscopy revealed areas of colitis, and the pathology report noted an ulcer with acute and chronic inflammation. Respondent's experts testified that they were of the opinion that Respondent violated no established standard by listing diverticulitis as an indication for the colonoscopy. It is found that Petitioner failed to prove that Respondent practiced below an established level in listing diverticulitis as an indication for the colonoscope.

    
    

34. During the colonoscopy, Respondent found several mildly bleeding areas and infiltrated Patient #4 with epinephrine. For the reasons discussed pertaining to Patient #4, it is found that Petitioner failed to prove that Respondent violated an established standard of care in administering epinephrine to Patient #4.

    
    

35. Dr. Goldberg was of the opinion that Respondent's handwritten consultation report was inadequate. Dr. Goldberg bases his conclusion on the following observations. The report was difficult to read and failed to include any significant historical events concerning Patient #4. In his consultation report, the Respondent failed to note anything about having done a rectal examination on this patient, whether or not the abdomen was distended, and whether there were active or inactive bowel sounds. Dr. Goldberg was of the opinion that these findings would help to distinguish between an obstruction and an ileus or paralysis of the bowel. Dr. Goldberg was also of the opinion that the patient's records of the upper endoscopy performed October 7, 1998, fail to reveal any significant findings. Other, equally credible expert witnesses were of the opinion that the medical records were adequate. It is found that Petitioner failed to prove the standard by which the adequacy of medical records are to be judged, other than the pertinent statutory standards set forth above. While it may be concluded that Respondent's medical records could be improved, Petitioner failed to prove that the medical records fell below an established standard of acceptability.

    
    

    PATIENT #5 (J.T.)

    
    

36. Patient #5, an 89 year-old male, was admitted to Imperial Point with a history of peptic ulcer disease and arthritis. This patient was seen by

    Respondent on a consulting basis. The patient was vomiting blood and Respondent was asked to see the patient to determine the source of the bleeding.

    
    

37. Respondent performed an upper endoscopy on October 13, 1988, and found a significant outlet obstruction. On October 17, 1988, a G.I. series was performed and a repeat upper endoscopy and pyloric dilatation was performed.

    The procedures performed by Respondent were properly indicated and had a beneficial result to the patient. Back-to-back pyloric dilatations were appropriate and clinical judgment was properly exercised.

    
    

38. Dr. Goldberg was of the opinion that Respondent failed to keep adequate written medical records pertaining to the upper endoscopy of October 13, 1988, in that Respondent's operative report failed to document Respondent's findings in detail. Dr. Goldberg testified that an essential endoscopy report that physicians are trained to do should include the following: indications for the procedure, medication used to sedate the patient, identification of instrument used, description of the anatomical landmarks and their condition as visualized by the physician passing the endoscope, the removal of the scope, the physician's impressions and what the physician plans to do about those impressions, how the patient tolerated the procedure and what the patient's condition was after the procedure, and that the patient was sent to the recovery area.

    
    

39. Dr. Goldberg was of the opinion that Respondent failed to keep adequate written medical records pertaining to the procedures performed on this patient on October 17, 1988, in that Respondent's operative report did not document Respondent's findings in detail and did not indicate if the scope was passed through Patient #5's dilated pylorus into the duodenum. In Respondent's impressions on the second endoscopy, he noted pyloric stenosis and duodenal ulcer. In his procedure note Respondent does not mention whether he passed the scope into the duodenum or how he knew there was a duodenal ulcer. Dr. Goldberg was of the opinion that Respondent did not properly document what he did.

    
    

40. On October 18, 1988, Respondent performed a repeat pyloric dilation on Patient #5. Dr. Goldberg was of the opinion that Respondent failed to record the reasons for the second procedure and to document his findings.

    
    

41. Dr. Goldberg was of the opinion that the third endoscopy note did not adequately detail the examinations of the esophagus and stomach. Dr. Goldberg was of the opinion that every procedure note stands alone, and that if a physician does an endoscopy on day one and repeats it on day two, the physician still must make that report complete because it is not always going to be part of a document. Dr. Goldberg was of the opinion that Respondent's records did not stand alone.

    
    

42. Dr. Goldberg was of the opinion that Respondent's handwritten consultation note was sketchy and should have contained a history of allergies because of the need to give the patient medications for sedation.

    
    

43. Dr. Goldberg's criticisms of Respondent's medical records do not prove that the medical records kept by Respondent were inadequate as measured by an established standard. Other, equally credible expert witnesses were of the opinion that the medical records provided sufficient information to document the procedures and that the records were adequate. While it may be concluded that Respondent's medical records could be improved, it is found that Petitioner failed to prove that the medical records were inadequate. It is further found

    that Petitioner failed to prove the standard by which the adequacy of medical records are to be judged, other than the pertinent statutory standards set forth above.

    
    

    PATIENT #6 (D.Y.)

    
    

44. From October 19, 1988, until October 22, 1988, Respondent was consulting physician to Patient #6, a 72 year-old male, who was admitted to Imperial Point with rectal bleeding.

    
    

45. Dr. Goldberg was of the opinion that Respondent failed to keep adequate written medical records pertaining to Patient #6 because a formal consultation note was lacking. The medical records which were reviewed by Dr. Goldberg were incomplete when reviewed by him. A specific reference is made to a consultation note that is not contained in the hospital records. Respondent established that other medical records were missing from the hospital records. In light of the specific reference to the consultation note, it is found that the absence of this consultation note from the hospital records is insufficient to prove that there existed no consultation note.

    
    

46. On October 20, 1988, Respondent performed an colonoscopy on this patient and a biopsy was taken in the segmental descending colon area. The colonoscopy could not be completed because the colonoscopy could not pass to the patient's cecum. The following recommendation was made by Respondent (the original is in all capital letters): IN VIEW OF NOT REACHING TO THE CECUM, THE PATIENT WOULD NEED BE (this is an abbreviation for barium enema) AND ALSO IF EVERYTHING IS NEGATIVE, RECOLONOSCOPY IN ONE YEAR AND IF THERE ARE ANY CHANGES IN THE BIOPSY OF THE POLYP, THEN ACCORDINGLY WILL PLAN.

    
    

47. On October 21, 1988, the follow-up barium enema was performed by Dr. Nicholas M. Arfaras, a radiologist. The radiology report reflected the following finding: "Also in the sigmoid there is an approximately 1 cm. rounded filling defect identified near the junction with the descending colon. This is felt to be secondary to a polyp."

    
    

48. The possible polyp detected by the barium enema should have been followed up. However, it was not established that Respondent was consulted by the attending physician about the results of the barium enema. Dr. Lipton, as the attending physician, would have had the responsibility for following up the recommendations made by Respondent and for bringing Respondent or another gastroenterologist in for further consultations following the barium enema if Dr. Lipton had believed it necessary to do so.

    
    

49. This patient was discharged from Imperial Point by Dr. Lipton on October 22, 1988. The final page of the discharge summary for this patient reflected the following notation: "Condition was improved. The patient is to have a follow up in one week in the office with Dr. Lipton and with Dr. Gupta in two weeks." The evidence presented in this proceeding, including Respondent's office notes, does not reflect that Respondent had any involvement with this patient after October 21, 1988, until 1990, when he performed on the patient at North Broward Medical Center a procedure described as a "multiple colonoscopy with multiple biopsies and cauterization." This procedure in 1990 revealed multiple polyps. The polyp removed on colonoscopy in 1988 was an adenomatous polyp, a polyp with significant malignant potential. This patient needed a follow-up colonoscopy in one year. Respondent was the consulting physician and recommended reevaluation of the patient in one year. Follow-up care was not the responsibility of Respondent, but of the treating physician.

50. Dr. Goldberg was of the opinion that Respondent failed to keep adequate written medical records in that Respondent failed to adequately document the indications for the colonoscopy performed on Patient #6 and why the colonoscope could not be passed to Patient #6's cecum. Dr. Goldberg opined that a physician doing a colonoscopy needs to tell why he did not get to the cecum so that the next physician colonoscoping this patient can take appropriate precautions. Other, equally credible expert witnesses were of the opinion that the medical records were adequate and provided sufficient information to document the procedures that were performed. Petitioner failed to prove that the medical records were inadequate. Petitioner failed to prove the standard by which the adequacy of medical records are to be judged, other than the pertinent statutory standards set forth above.

    
    

    PATIENT #7 (C.R.)

    
    

51. Respondent was a consulting physician to Patient #7, a 64 year old male who was hospitalized with rectal bleeding.

    
    

52. Respondent saw this patient because of a possible colonic fistula, which is a connection with any piece of the intestine and some other structure.

    
    

53. Respondent recommended a barium small bowel X-ray and a barium enema, both appropriate clinical recommendations. On November 11, 1987, Respondent performed a colonoscopy on Patient #7.

    
    

54. Petitioner contends that Respondent failed to keep adequate written medical records pertaining to the aforementioned procedure in that Respondent failed to document an adequate history as an indication of Patient #7's colonoscopy. This contention is rejected based on the testimony of Dr. Singh. The medical records provide adequate justification for the procedure.

    
    

55. Dr. Goldberg was critical of Respondent's records pertaining to this patient and considered the records inadequate. He was of the opinion that the records should have better detailed his findings and should have recorded any follow-up plans for a repeat colonoscopy on the patient. Other, equally credible expert witnesses were of the opinion that the medical records were adequate and provided sufficient information to document the procedures that were performed. Petitioner failed to prove that the medical records were inadequate. Petitioner failed to prove the standard by which the adequacy of medical records are to be judged, other than the pertinent statutory standards set forth above.

    
    

    CONCLUSIONS OF LAW

    
    

56. The Division of Administrative Hearings has jurisdiction over this case and the parties pursuant to Section 120.57(1), Florida Statutes.

    
    

57. The Petitioner charges the Respondent in a twelve (12) count Amended Administrative Complaint alleging violations of 458.331(1)(m) and (t), Florida Statutes, during 1987 and 1988. The Amended Complaint concerns treatment and medical records relating to seven (7) patients.

    
    

58. Petitioner has the burden of proving the allegations contained in the Amended Administrative Complaint. Since Petitioner announced that it does not seek to suspend or revoke Respondent's licensure, the parties stipulated that the appropriate standard of proof is by the greater weight of the evidence.

59. Petitioner has stipulated that no patient incurred injury as the result of any procedure performed by Respondent nor did any patient claim injury or make a claim against Respondent. Further, Petitioner has stipulated that Respondent derived no financial gain from any act or omission alleged in the Amended Complaint.

    
    

60. There is no reasonable basis to accord the opinions of Dr. Goldberg more weight than those of Dr. Cerda, Dr. Eberly, and Dr. Singh. Likewise, there is no reasonable basis to accord the opinions of Dr. Cerda, Dr. Eberly, and Dr. Singh more weight than those of Dr. Goldberg. Giving equal weight to the testimony of all experts, it is clear that there is room for disagreement among qualified physicians in terms of acceptable medical procedures. Clearly, clinical judgment plays an important role in determining whether one procedure versus another is acceptable or unacceptable in a given situation.

    
    

61. Petitioner clearly proved that the medical records kept by Respondent did not meet Dr. Goldberg's standards for keeping medical records. Dr. Goldberg's opinions, however, did not prove a standard by which other physicians should be judged. That Dr. Goldberg would have kept more detailed records does not establish the standards by which other physicians are to be measured. Basic due process requires adequate notice to a licensee of the standard of conduct to which he or she must adhere. Breesman vs. Department of Professional Regulation, 567 So.2d 469 (1st DCA 1990).

    
    

62. Petitioner has alleged a deficiency in medical record keeping for each of the seven patients identified in the Amended Complaint. As pointed out by Petitioner in its post-hearing submittal 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. Department of Professional Regulation, 574 So.2d 153, 156 (Fla. 1st DCA, 1991). Respondent's expert testimony was that Respondent's medical records were adequate and provided the requisite information. Although the medical records taken as a whole were not exemplary, Petitioner did not prove that the records failed to meet the statutory standards for the keeping of records as those standards existed in 1987 and 1988. Petitioner did not establish any other standard by which the records should be measured.

    
    

63. The twelve (12) count Amended Administrative Complaint filed by Petitioner should be disposed of as follows:

    
    

64. Count One alleges that with respect to Patient #1 Respondent failed to practice medicine with that level of care skill, and treatment which a reasonably prudent similar physician recognizes as acceptable under similar conditions and circumstances in that Respondent inappropriately injected Patient #1 with adrenaline when there were no reasons or justifications for such, and Respondent obtained esophageal brushings from Patient #1 without justification, thereby violating Section 458.331(1)(t), Florida Statutes. Petitioner failed to prove the factual allegations pertaining to Count One. The use of adrenaline to stop minor bleeding or oozing is a routine precautionary measure taken by some gastroenterologists and required no justification. Petitioner failed to prove that Respondent's use of the term "infiltrated" should be construed to mean that he injected the gastric wall of Patient #1 with a needle as alleged in Count One. Petitioner failed to prove that Respondent took esophageal brushings from Patient #1 as alleged in Count One. Petitioner failed to prove that Respondent violated the provisions of Section 458.331(1)(t), Florida Statutes, as alleged in Count One.

65. Petitioner asserts in its post-hearing submittal that Respondent should be found guilty of Count 1 because Dr. Goldberg and Dr. Cerda agreed that the label of esophageal brushing was probably an error and that the error should have been corrected had it come to Respondent's attention. Dr. Goldberg and Dr. Cerda testified that they would have called pathology to correct the erroneous reference to esophageal brushings, if in fact the reference to esophageal brushings was an error. Petitioner's argument is rejected because the alleged failure to correct an erroneous reference to esophageal brushings is not charged in the Amended Administrative Complaint.

    
    

66. Count Two alleges that Respondent failed to keep written medical records justifying the course of treatment of Patient #1 including, but not limited to, the following: Respondent failed to document an adequate history and physical on Patient #1's chart (including why Patient #1 presented to Respondent); Respondent failed to document an adequate procedure note pertaining to Patient #1's surgery in that Respondent failed to state why he injected Patient #1 with adrenaline; and Respondent failed to keep written medical records to justify taking esophageal brushings from Patient #1, thereby violating Section 458.331(1)(m), Florida Statutes.

    
    

67. Petitioner failed to prove that Respondent injected adrenaline into Patient #1's gastric wall and it failed to prove that Respondent took esophageal brushings from Patient #1. Therefore, its allegations in Count Two that the failure to document those procedures violated Section 458.331(1)(m), Florida Statutes, are rejected.

    
    

68. Petitioner proved that Respondent failed to document an adequate history and physical on Patient #1's chart as alleged in Count Two. Petitioner further proved by the testimony of both Dr. Goldberg and Dr. Cerda that such failure was below an established standard for the keeping of medical records. Respondent's expert, Dr. Cerda, testified that not to have a history and physical on either an inpatient or an outpatient record was below an established standard of care. Dr. Cerda testified that he found no history and physical in the Respondent's records of this patient. Consequently, it is concluded that Respondent violated the provisions of Section 458.331(1)(m), Florida Statutes, by his failure to document a history and physical on Patient #1 as alleged in Count Two.

    
    

69. Counts Three and Four reference Patient #2. In Count Three it is alleged that Respondent performed an upper endoscopy on Patient #2 and gave as the only indications for the procedures hematemesis and possible GI bleeding. Petitioner also charges that Respondent inappropriately injected Patient #1 with epinephrine. Petitioner alleges that Respondent violated Section 458.331(1)(t), Florida Statutes, by failing to practice his specialty of gastroenterology with a recognized acceptable level of care, skill, and treatment. As discussed in the findings of fact, Petitioner failed to prove that Respondent failed to practice medicine below the acceptable standard required under Section 458.331(1)(t), Florida Statutes, as alleged in Count Three.

    
    

70. Petitioner failed to factually prove that Respondent's records pertaining to Patient #2 fell below an established standard for medical record keeping at the time the records were prepared as alleged in Count Four.

    
    

71. Counts Five and Six reference Patient #3. In Count Five Petitioner alleged that Respondent violated Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with a recognized acceptable level of care, skill,

and treatment. As discussed in the findings of fact, Petitioner failed to prove that Respondent was responsible to cancel the barium enema as alleged in Count

1. The evidence established that it was reasonable for Respondent to recommend a follow-up recolonoscopy at the time he did so. Consequently, it is concluded that Petitioner failed to prove the alleged violation of Section 458.331(1)(t), Florida Statutes, contained in Count 5.

   
   

   1. Count Six alleges that Respondent's written medical records pertaining to Patient #3 and are inadequate and therefore violate Section 458.331(1)(m), Florida Statutes. As discussed in the findings of fact, Petitioner failed to meet its burden of proof to establish the standard for medical record keeping at the time the records were prepared, to wit: 1987 and 1988; or to prove that the medical records prepared by Respondent as to this patient were below an established standard. Consequently, it is concluded that Petitioner failed to prove the alleged violation of Section 458.331(1)(m), Florida Statutes, contained in Count 6.

      
      

   2. Counts Seven and Eight refer to Patient #4. Count Seven alleges that Respondent failed to practice medicine within an acceptable level of care, skill, and treatment as to Patient #4 thereby violating Section 458.331(1)(t), Florida Statutes. As discussed in the findings of fact, Petitioner failed to meet its burden to factually establish that Respondent failed to practice medicine below the acceptable standard required under Section 458.331(1)(t), Florida Statutes, as alleged in Count Seven.

      
      

   3. Count Eight alleges that Respondent's medical records pertaining to Patient #4 were inadequate and therefore violated Section 458.331(1)(m), Florida Statutes. Petitioner failed to meet its burden of proof to establish the standard for medical record keeping at the time the records were prepared, and it failed to prove that the medical records prepared by Respondent were below an acceptable standard. Consequently, it is concluded that Petitioner has failed to meet its burden of proof to establish that Respondent violated the provisions of Section 458.331(1)(m), Florida Statutes, as alleged in Count Eight.

      
      

   4. Count Nine alleges that Respondent's medical records pertaining to Patient #5 violated Section 458.331(1)(m), Florida Statutes. Petitioner has failed to meet its burden of proof to establish the standard for medical record keeping at the time the records were prepared, and it failed to prove that the medical records prepared by Respondent were below an established standard. Consequently, it is concluded that Petitioner failed to prove that Respondent violated the provisions of Section 458.331(1)(m), Florida Statutes, as alleged in Count Nine.

      
      

   5. Counts Ten alleges that violated Section 458.331(1)(t), Florida Statutes, during the treatment of Patient #6. As discussed in the findings of fact, Petitioner failed to prove that Respondent was responsible to insure follow up for this patient. Consequently, it is concluded that Petitioner failed to prove that Respondent violated the provisions of Section 458.331(1)(t), Florida Statutes, as alleged in Count Ten.

      
      

   6. Count Eleven alleges that Respondent's medical records pertaining to Patient #6 violated Section 458.331(1)(m), Florida Statutes. Petitioner failed to meet its burden of proof to establish the standard for medical record keeping at the time the records were prepared, and it failed to prove that the medical records prepared by Respondent were below an established standard.

      Consequently, it is concluded that Petitioner failed to prove that Respondent violated the provisions of Section 458.331(1)(m), Florida Statutes, as alleged in Count Eleven.

      
      

   7. Count Twelve alleges that Respondent's medical records pertaining to Patient #7 violated Section 458.331(1)(m), Florida Statutes. Petitioner failed to meet its burden to establish the standard for medical record keeping at the time the records were prepared, and it failed to prove that the medical records prepared by Respondent were below an established standard. Consequently, it is concluded that Petitioner failed to prove that Respondent violated the provisions of Section 458.331(1)(m), Florida Statutes, as alleged in Count Twelve.

      
      

   8. Rule 21M-20.001, Florida Administrative Code, contains certain disciplinary guidelines pertinent to this proceeding. For a violation of Section 458.331(1)(m), Florida Statutes, the recommended penalty ranges as follows: "From reprimand to ... two years suspension followed by probation, and an administrative fine from $250.00 to $5,000.00."

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order which finds that Respondent violated the provisions of Section 458.331(1)(m), Florida Statutes, by failing to provide a history or physical examination for Patient #1 as alleged in Count Two, which reprimands Respondent for that violation, and which imposes an administrative fine in the amount of $250.00 against the Respondent for that violation. It is further recommended that all other charges against Respondent contained in the Amended Administrative Complaint be dismissed.

DONE AND ENTERED this 12th day of October, 1993, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 12th day of October, 1993.

ENDNOTE

1/ It is not disputed that the pathology report which referred to the esophageal brushings was not corrected. If Respondent had seen that report, he should have corrected the reference to the esophageal brushings and he should have informed the laboratory of the error to ensure that there would be no change in the interpretation of the brushings. However, the Amended Administrative Complaint did not charge Respondent with failing to correct this erroneous reference to esophageal brushings in the lab report. Petitioner did

not establish that Respondent violated an established standard of care merely because this error in the laboratory report remained uncorrected.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4368

The following rulings are made on the proposed findings of fact submitted by Petitioner.

1. The proposed findings of fact in paragraphs 5, 10, 11, 18, 20, 21, 22, 25, 26, 32, 35, 36, 48, 49, 50, 55, 62, 64, 67, 71, 72, 75, 87, 92, and 95 are rejected as being contrary to the findings made.

   
   

2. The proposed findings of fact in paragraphs 6, 7, 17, 23, 24, 27, 41, 44, 45, 46, 47, 56, 61, 65, and 76 are subordinate to the findings made.

   
   

3. The proposed findings of fact in paragraphs 8 and 66 are rejected as being unnecessary to the conclusions reached since it is found that Petitioner failed to establish that Respondent injected these patients with epinephrine.

   
   

4. The proposed findings of fact in paragraph 12 are rejected as being unnecessary to the conclusions reached since it is found that the reference to espohageal brushings was an error.

   
   

5. The proposed findings of fact in paragraph 14 are rejected as being unnecessary to the conclusions reached because Respondent was not charged with the failure to correct the erroneous reference to esophageal brushings.

   
   

6. The proposed findings of fact in paragraphs 28, 33, 34, 36, 37, 38, and

88 are rejected as being unnecessary to the conclusions reached.

1. The proposed findings of fact in paragraphs 40, 78, 79, 80, 81, 82, 83, 85, 90, 93, 96, 97, and 98 are adopted in part by the Recommended Order and are rejected in part as being contrary to the findings made.

   
   

2. The proposed findings of fact in paragraphs 68, 69, and 70 are adopted in part by the Recommended Order and are rejected to the extent the proposed findings are contrary to the findings made since the X-ray results were not the only factors that dictated the course of treatment for this patient.

The following rulings are made on the proposed findings of fact submitted by Respondent.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 10, 13, 15, 16, 18, 19, 20, 22, 23, 24, 27, 30, 32, 33, 34, 35, 36, 37, 38, 39, 42, 43, 44, 45, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, and 59 are adopted in material part by the Recommended Order.

   
   

2. The proposed findings of fact in paragraphs 6, 7, and 12 are rejected as being unnecessary to the conclusions reached since these proposed findings pertain to issues not raised by the administrative complaint.

3. The proposed findings of fact in paragraphs 8 and 25 are adopted in part by the Recommended Order and are rejected in part as being unnecessary to the conclusions reached.

   
   

4. The proposed findings of fact in the first sentence of paragraph 9 are adopted in material part by the Recommended Order. The proposed findings of fact in the second sentence of paragraph 9 are rejected as being unnecessary to the conclusions reached.

   
   

5. The proposed findings of fact in paragraphs 10, 11, 14, 17, 26, 28, 29, 31, 41, 46, and 47 are subordinate to the findings made.

   
   

6. The proposed findings of fact in paragraph 21 are rejected as being unnecessary to the conclusions reached since it is found that Petitioner did not establish that the medical records were inadequate.

   
   

7. The proposed findings of fact in the first two sentences of paragraph

40 are adopted in material part by the Recommended Order. The proposed findings of fact in the third sentence of paragraph 40 are subordinate to the findings made.

COPIES FURNISHED:

Sandra A. Wolpe, Esquire

Department of Professional Regulation 6261 NW 6th Way, Suite 110

Fort Lauderdale, Florida 33309

Barbara Whalin Makant, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Steven L. Josias, Esquire James A. Cherof, Esquire Josias & Goren

3099 East Commercial Boulevard, Suite 200

Fort Lauderdale, Florida 33308

Dorothy Faircloth, Executive Director

Department of Business and Professional Regulation Board of Medicine

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Jack McRay, General Counsel Department of Business

and Professional Regulation

1940 North Monroe Street, Suite 60

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.

=================================================================

AGENCY FINAL ORDER

=================================================================

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION BOARD OF MEDICINE

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

DBPR CASE NUMBER: 89-12230

vs DOAH CASE NUMBER: 92-4368

LICENSE NUMBER: 0043566

SUBHASH C. GUPTA, M.D.,

Respondent.

/

FINAL ORDER

This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)10, Florida Statutes, on December 3, 1993, in Boca Raton Florida, for the purpose of considering the Hearing Officer's Recommended Order, Petitioner's and Respondent's Exceptions to the Recommended Order, and Petitioner's Response to Respondent's Exceptions (copies of which are attached hereto as Exhibits A, B, and C, respectively) in the above-styled cause.

Petitioner, Department of Business and Professional Regulation, was represented by Larry G. McPherson, Jr., Attorney at Law. Respondent was present and represented by James A. Cherof, Attorney at Law.

Upon review of the Recommended Order, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions.

FINDINGS OF FACT

1. Findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

2. There is competent substantial evidence to support the findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.

   
   

2. The conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

3. There is competent substantial evidence to support the conclusions of

law.

RULINGS ON EXCEPTIONS

Both parties filed exceptions to the Hearing Officer's Recommended Findings

of Fact and after consideration of each of the written exceptions and responses thereto the Board ruled to reject each exception filed by the parties.

PENALTY

Upon a complete review of the record in this case, the Board determines that the penalty recommended by the Hearing Officer be REJECTED. The Board determined that the reprimand and the fine recommended by the Hearing Officer are not justified by the record. Both the Respondent and the public would be better served by requiring Respondent to complete appropriate continuing medical education. WHEREFORE,

IT IS HEREBY ORDERED AND ADJUDGED that

Respondent shall complete 30 hours of Category I continuing medical education courses during the next year with 15 hours in the area of gastroenterology and 15 hours of the area of risk management. These hours shall be in addition to the hours required for renewal of licensure and shall consist of a formal live lecture format.

This order takes effect upon filing with the Clerk of the Department of Business and Professional Regulation.

DONE AND ORDERED this 23rd day of December, 1994.

BOARD OF MEDICINE

EDWARD A. DAUER, M.D. CHAIRMAN

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT

WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Subhash C. Gupta, M.D. c/o James A. Cherof, Esquire, 3099 East Commercial Boulevard, Ft. Lauderdale, Florida 33308, by U.S. Mail to Claude B. Arrington, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and by interoffice delivery to Larry G. McPherson, Jr., Chief Medical Attorney, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 at or before 5:00 P.M., this 29th day of December, 1994.

Marm Harris

AMENDED CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Subhash C. Gupta, 601 E. Sampl Rd., #105, Pompano Bch, Florida 33064, James A. Cherof, 3099 E. Commercial Blvd, Ft. Lauderdale, Florida 33308 and Claude B. Arrington, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, at or before 5:00 p.m., this 29th day of December, 1993.

Marm Harris

Docket for Case No: 92-004368

Orders for Case No: 92-004368