STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in these consolidated cases on July 13, 1994, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Francesca Plendl, Esquire

Agency for Health Care Administration 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Jerry J. Nemecek, M.D., pro se

8220 Northwest 21st Street Sunrise, Florida 33322-3946

STATEMENT OF THE ISSUES

1. Whether Respondent committed the violations alleged in the Administrative Complaints?

   
   

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

PRELIMINARY STATEMENT

On January 24, 1992, the Department of Professional Regulation (now the Department of Business and Professional Regulation and hereinafter referred to as the "Department") issued an Administrative Complaint [hereinafter referred to as "Administrative Complaint #1"] against Respondent, a Florida-licensed medical doctor, alleging that Respondent violated Section 458.331(1)(t), Florida Statutes, in connection with his care and treatment of patient R.D., by "fail[ing] to do the following: institute intravenous treatment for [R.D.] in a timely manner by surgically inserting a central venous line by cut down; order a surgical consult in order to place the central venous line in an appropriate manner; order a post-procedure chest x-ray to rule out the possibility of

pneumothorax following his second unsuccessful attempt(s) to place a central venous line; and order an evaluation of [R.D.] by the E.R. physician when first contacted by nursing staff on the day before [R.D.'s] death."

On February 11, 1993, the Department issued a second Administrative Complaint [hereinafter referred to as "Administrative Complaint #2"] against Respondent alleging that Respondent violated: in Count 1, Section 458.331(1)(c), Florida Statutes, by entering a plea of nolo contendere on September 12, 1989, "to the offense of referring a patient to a business entity without disclosure of financial interest, a violation of Section 458.327(2)(c), Florida Statutes;" in Count 2, Section 458.331(1)(x), Florida Statutes, by practicing medicine without an active license at Cypress Medical and Professional Centre in Winter Haven, Florida from on or about December 27, 1988, until on or about April 20, 1989; in Count 3, Section 458.331(1)(h), Florida Statutes, by "ma[king] or fil[ing] a report which [he] knew to be false in that Respondent did not see [p]atient [M.L.] more than two (2) or three (3) times [but he] personally signed twenty (20) bills, which were submitted to [M.L.'s] insurance carrier, for [M.L.'s] examination and treatment;" in Count 4, Section 458.331(1)(m), Florida Statutes, by "fail[ing] to keep written medical records justifying the course of treatment for [M.L.] in that during Respondent's initial examination of [M.L.], Respondent made no notation showing that he had taken a history of [M.L.'s] current complaint or explored its possible etiology;" and in Count 5, Section 458.331(1)(t), Florida Statutes, by "fail[ing] to adequately examine, diagnose, and/or treat [M.L.'s] chronic headaches."

Respondent denied the allegations of wrongdoing made against him in Administrative Complaint #1 and Administrative Complaint #2 and requested formal hearings on these matters. On May 14, 1993, the Department referred Administrative Complaint #1 and Administrative Complaint #2 to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the formal hearings Respondent had requested. Administrative Complaint #1 was docketed as Case No. 93-2640. Administrative Complaint #2 was docketed as Case No. 93-2683. At the request of the Department, the two matters were consolidated by order issued July 14, 1993.

On September 22, 1993, the Department issued a third Administrative Complaint [hereinafter referred to as "Administrative Complaint #3"] against Respondent alleging that, in connection with his care and treatment of patient A.M.D., Respondent violated: in Count 1, Section 458.331(1)(t), Florida Statutes, by "fail[ing] to order the appropriate tests to properly assess the condition of Patient A.M.D.; fail[ing] to order or recommend the appropriate consultations and/or referrals; failing to make the appropriate timely diagnoses of Patient A.M.D.; [and] fail[ing] to provide Patient A.M.D. with the appropriate treatment plan;" and in Count 2, Section 458.331(1)(m), Florida Statutes, by "fail[ing] to document the appropriate consultations and/or recommendations for consultations and referrals; [and] fail[ing] to document justification of the course of treatment that was followed without significant and consist[e]nt improvements."

On September 24, 1993, the Department issued a fourth Administrative Complaint [hereinafter referred to as "Administrative Complaint #4"] against Respondent alleging that, in connection with his care and treatment of patient A.A., Respondent violated: in Count 1, Section 458.331(1)(t), Florida Statutes, by "fail[ing] to order a chest x-ray for Patient A.A. on several occasions when the symptoms warranted and required a chest x-ray to be performed; inappropriately treat[ing] Patient A.A.'s condition on or about 19 October 1992

with tranquillizers; fail[ing] to properly assess Patient A.A.'s condition; and fail[ing] to make a timely diagnosis of Patient A.A.'s cancer;" and in Count 2, Section 458.331(1)(m), Florida Statutes, by failing to "keep adequate

medical records of his treatment of Patient A.A., including, but not limited to, the documentation of an adequate physical examination and/or medical history."

On December 2, 1993, the Department referred Administrative Complaint #3 and Administrative Complaint #4 to the Division of Administrative Hearings for the assignment of a Hearing Officer. Administrative Complaint #3 was docketed as Case No. 94-0234. Administrative Complaint #4 was docketed as Case No. 94- 0235. At the request of the Department, these two matters were consolidated with Case Nos. 93-2640 and 93-2683 by order issued February 8, 1994.

The hearing in these four consolidated cases was held on July 13, 1994. 1/ At hearing, the Agency for Health Care Administration (hereinafter referred to as the "Agency"), which, effective July 1, 1994, pursuant to Chapter 93-129, Laws of Florida, had been transferred the authority that the Department had previously possessed to regulate the practice of medicine in this state, including the licensure of those engaging in such practice, and therefore had become the Department's successor in these proceedings, presented the testimony of two witnesses: F.A., the daughter of patient A.A., whose care and treatment are the subject of Administrative Complaint #4; and Jeffrey Ehrlich, M.D., an internist 2/ who served as the Agency's expert witness. In addition to the testimony of these two witnesses, the Department offered, and the Hearing Officer received, 18 exhibits (Petitioner's Exhibits 1 through 18) into evidence. Among these exhibits was the transcript of the deposition of Elizabeth Mutch, M.D. Respondent testified on his own behalf at hearing. He presented no other evidence in his defense.

At the conclusion of the evidentiary portion of the hearing, the Hearing Officer, on the record, established a deadline for the filing of post-hearing submittals. The deadline set by the Hearing Officer was 20 days from the date of the Hearing Officer's receipt of the transcript of the hearing.

The Hearing Officer received the hearing transcript from the court reporter on September 23, 1994. Because of an equipment malfunction, a portion of Dr.

Ehrlich's testimony was not recorded by the court reporter and therefore not included in her transcript. The parties, however, have submitted a stipulation detailing the substance of that portion of Dr. Ehrlich's testimony missing from the transcript. The Hearing Officer has carefully reviewed the parties' stipulation and finds it to be accurate and substantially complete.

On October 11, 1994, the Agency filed a motion requesting an extension of the deadline for the submission of post-hearing submittals in these consolidated cases. The motion was granted and the post-hearing submittal deadline was extended to October 24, 1994. The Agency filed a proposed recommended order on October 24, 1994. The Agency's proposed recommended order contains what are labelled as proposed "findings of fact" and "conclusions of law." These proposed "findings of fact" and "conclusions of law" have been carefully considered. The proposed "findings of fact" are specifically addressed in the Appendix to this Recommended Order. To date, Respondent has not filed any post- hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

The Parties

1. The Agency is a state government licensing and regulatory agency.

   
   

2. Respondent is now, and has been since August 27, 1971, a physician licensed to practice medicine in the State of Florida.

   
   

3. He holds license number ME 0018306.

   
   

4. Respondent previously faced charges of professional misconduct in DPR Case No. 89-0925. In that case, Respondent was charged with practicing medicine with an inactive license from on or about January 1, 1984, until on or about November 22, 1989. The matter was resolved by the parties entering into a settlement stipulation, which was approved by the Board of Medicine in a final order entered August 13, 1990. Under the terms of the agreement, Respondent, without admitting his guilt, agreed to pay a $500.00 administrative fine and not to "in the future violate Chapters 455, 458 and 893, Florida Statutes, or the rules promulgated pursuant thereto."

   
   

   Facts Relating to Case No. 93-2640/Administrative Complaint #1

   
   

5. From on or about February 8, 1991, to March 24, 1991, patient R.D., a

   43 year old male who had tested positive for the Human Immunodeficiency Virus (HIV), was hospitalized at North Florida Reception Medical Center Hospital (hereinafter referred to as "MCH").

   
   

6. During his hospitalization, R.D. received treatment for advanced Acquired Immunodeficiency Syndrome (AIDS) and related complications.

   
   

7. Elizabeth Mutch, M.D., was R.D.'s attending physician at MCH.

   
   

8. R.D. was experiencing difficulty in swallowing oral medications due to multiple ulcerations in his mouth secondary to an uncontrolled Herpes Virus.

   
   

9. On or about March 16, 1991, Dr. Mutch determined that R.D. would benefit from intravenous medications through a central venous line.

   
   

10. She therefore wrote an order for "central venous line placement Monday 3/18."

    
    

11. In another written order, she directed that "IV fluids [be held] until central venous line in place."

    
    

12. Both orders were dated March 16, 1991.

    
    

13. In her progress notes for March 16, 1991, Dr. Mutch indicated "Central line ASAP."

    
    

14. In the middle of March of 1991, Respondent was the acting medical director of MCH. In addition to his duties as acting medical director, he was on the staff of the hospital's internal medicine department.

15. Respondent was the only internist on staff at the hospital with any significant experience in central line placements of the type ordered by Dr. Mutch, although there was a surgeon affiliated with the hospital, a Dr. Capliwski, who had such experience and in fact performed most of the placements needed by patients at the hospital.

    
    

16. Sometime after she wrote the order for central venous line placement for R.D., Dr. Mutch verbally requested Respondent to attempt such placement at his earliest possible convenience.

    
    

17. On March 18, 1991, Respondent made approximately five unsuccessful attempts to place a subclavian venous line in R.D., the first of which yielded air, indicating that R.D.'s lung had been punctured.

    
    

18. Following these unsuccessful placement attempts, Respondent ordered a chest x-ray for R.D. The x-ray taken revealed no evidence of pulmonary distress.

    
    

19. Respondent's progress notes for March 18, 1991, do not reflect that he ordered a surgical consultation that day after his placement attempts failed.

    
    

20. The next two or three days Respondent was out of town on hospital business in his capacity as the hospital's acting medical director.

    
    

21. Respondent reasonably assumed that, in his absence from the hospital, Dr. Mutch would ask Dr. Capliwski to try to perform the central venous line placement that she had initially requested Respondent to attempt.

    
    

22. Upon his return to the hospital, Respondent learned that no such attempt had been made.

    
    

23. Respondent therefore again made several attempts at central venous line placement. Placement was attempted via R.D.'s jugular vein. While the approach was different, the results were the same. Respondent was unable to accomplish his objective.

    
    

24. Following this second series of unsuccessful placement attempts, Respondent ordered another chest x-ray for R.D.

    
    

25. On March 24, 1991, at approximately 1:00 a.m., R.D. began to have difficulty breathing. He also had a rapid heart rate, a pulse rate of 140, a respiratory rate of 30, and a temperature of 103.3. degrees.

    
    

26. Respondent was the "on call" physician.

    
    

27. He was at home, approximately 35 miles away from the hospital.

    
    

28. The duty nurse telephoned Respondent and spoke with him about R.D. 3/

    
    

29. Respondent instructed the nurse to give R.D. Tylenol and to make sure that he was receiving oxygen. He did not suggest that R.D. be seen by Dr. Chandler, the physician manning MCH's emergency room.

    
    

30. By 9:15 p.m. that same day, R.D.'s condition had further deteriorated. His respiratory rate had increased to 40.

31. The duty nurse again telephoned Respondent at home and informed him of R.D.'s deteriorating condition.

    
    

32. This time Respondent directed that R.D. be immediately evaluated by Dr. Chandler.

    
    

33. In accordance with Respondent's directive, Dr. Chandler was contacted.

    
    

34. He ordered a chest x-ray for R.D. The x-ray revealed a 50 percent pneumothorax with right mediastinal shift.

    
    

35. Dr. Chandler therefore performed an emergency thoracotomy.

    
    

36. Arrangements were then made to transfer R.D. to Lake Shore Hospital.

    
    

37. At approximately 10:10 p.m. on March 24, 1991, shortly after he was placed in the ambulance that was to transport him to Lake Shore Hospital, R.D. experienced respiratory arrest and expired.

    
    

38. An autopsy was performed by Carolyn Hopkins, M.D., of the local Medical Examiner's Office.

    
    

39. The autopsy report prepared by Dr. Hopkins lists "complications of acquire[d] immunodeficiency syndrome" as the cause of death.

    
    

40. More specifically, Respondent died as a result of a tension pneumothorax.

    
    

    Facts Relating to Case No. 93-2683/Administrative Complaint #2 Counts 1 and 2

41. Respondent's license to practice medicine in the State of Florida was inactive due to non-renewal from on or about December 31, 1983, until approximately November of 1989.

    
    

42. Respondent engaged in the practice of medicine at Cypress Medical and Professional Centre (hereinafter referred to as the "Centre") in Winter Haven, Florida, during a portion of the period that his medical license was inactive.

    
    

43. On or about September 12, 1989, Respondent entered a plea of nolo contendere to the criminal offense of referring a patient to a business entity without disclosure of financial interest, in violation of Section 458.327(2)(c), Florida Statutes (1989).

    
    

44. It was stipulated by Respondent and the prosecutor at the time of the entry of the plea that the crime to which Respondent pled was a lesser included offense of the crime of practicing medicine without a license.

    
    

45. On or about October 25, 1989, adjudication of guilt was withheld and Respondent was ordered to pay a $500.00 fine.

    
    

    Counts 3, 4 and 5

    
    

46. On January 20, 1989, patient M.L. went to the Centre complaining, among other things, of chronic headaches.

47. M.L. was first seen by a chiropractor at the Centre, who referred her "to M.D. for complete detailed neurologic-orthopedic exam."

    
    

48. On January 24, 1989, M.L. was examined by Respondent at the Centre.

    
    

49. The records maintained at the Centre reflect that, during this initial examination, Respondent explored the history and possible etiology of M.L.'s chronic headaches.

    
    

50. The entries made on the Progress Notes and Patient Control Sheet maintained at the Centre (11 of which apparently were made by, or at the direction of, Respondent) reflect that M.L. visited the Centre on 21 different occasions.

    
    

51. Bills from the Centre for 20 of these 21 visits were signed by Respondent. 4/ The Progress Notes and Patient Control Sheet do not reflect that Respondent saw M.L. on all 20 visits covered by these bills.

    
    

    Facts Relating to Case No. 94-0234/Administrative Complaint #3

    
    

52. On November 22, 1989, patient A.M.D., a 40-year old female, presented to the emergency room at Polk General Hospital (hereinafter referred to as "PGH") in Bartow, Florida, with complaints of a high fever, abdominal pain, vomiting and coughing.

    
    

53. An examination revealed that she had rapid pulse and respiration rates.

    
    

54. It was further observed that she had a flushed face and epigastric tenderness.

    
    

55. A.M.D. was treated in the PGH emergency room with, among other things, an antibiotic, vibramyacin, for which she was also given a prescription. She was then discharged.

    
    

56. A.M.D. returned to the PGH emergency room on November 23, 1989, with symptoms similar to those with which she had presented the previous day. She was again treated and discharged.

    
    

57. Records of these two emergency room visits were made and kept by the hospital.

    
    

58. A.M.D. paid a third visit to the PGH emergency room on November 24, 1989, with symptoms similar to those she had exhibited during her first two visits.

    
    

59. On this occasion, she was admitted to PGH in the care of Respondent.

    
    

60. She remained in Respondent's care throughout her entire stay at the hospital.

    
    

61. As her attending physician, it was incumbent upon Respondent to review the records of A.M.D.'s prior two emergency room visits.

62. Upon A.M.D.'s admission to the hospital, Respondent failed to order multiple blood cultures, notwithstanding that, as Respondent should have known, Respondent was already on an antibiotic. A single blood culture is insufficient to properly diagnose the condition of such a patient.

    
    

63. Respondent's initial diagnosis of A.M.D., made without the benefit of results of multiple blood cultures, was undetermined gastrointestinal problems.

    
    

64. A.M.D. was treated with, among other things, antibiotics.

    
    

65. Although A.M.D. still had a high fever following the first several days of her hospitalization and the diagnosis of her condition remained obscure, Respondent did not attempt to obtain a consultation with an infectious disease specialist, 5/ nor did he order that A.M.D.'s treatment plan be modified to include intravenous administration of high dosages of at least two different broad spectrum, latest generation antibiotics.

    
    

66. A.M.D. continued to run a fever until December 4, 1989, after which her condition slightly improved.

    
    

67. Even though a blood culture had indicated that A.M.D. had a staphylococcal infection, Respondent nonetheless ordered that the intravenous administration of antibiotics be discontinued because A.M.B. had been afebrile for a few days.

    
    

68. Thereafter, A.M.D.'s condition quickly deteriorated.

    
    

69. She suffered congestive hear failure, but Respondent did not seek to obtain a consultation with a cardiologist.

    
    

70. On December 11, 1989, 17 days after she had been admitted to the hospital, A.M.D. expired.

    
    

71. At the time of her death she was not on antibiotics. This was a factor which contributed to her demise.

    
    

72. Respondent's final primary diagnosis of A.M.D. was toxemic shock, protracted. His secondary diagnoses included: staphylococcal septicemia, acute; cholelithiasis, chronic; and pneumonitis, subacute, staphylococcal.

    
    

73. In not doing the following while A.M.D. was hospitalized at PGH and under his care, Respondent failed to practice medicine with that level of care, skill and treatment that, in light of the surrounding circumstances, a reasonably prudent internist would have recognized as being acceptable and appropriate at the time: ordering multiple blood cultures upon A.M.D.'s admission to the hospital in order to properly assess her condition; attempting to seek a consultation with an infectious disease specialist and ordering that A.M.D.'s treatment plan be modified to include intravenous administration of high dosages of at least two different broad spectrum, latest generation antibiotics when A.M.D. still had a high fever following the first several days of her hospitalization and the diagnosis of her condition remained obscure; seeking to obtain a consultation with a cardiologist when A.M.D. suffered congestive heart failure; and appropriately treating A.M.D. with antibiotics throughout the time she was under his care, including the period following the brief improvement in her condition and reduction of her temperature to normal.

    Facts Relating to Case No. 94-0235/Administrative Complaint #4

    
    

74. On or about August 17, 1992, patient A.A., a 69 year old male, presented to Respondent at Preferred Quality Medical Care in Plantation, Florida with complaints of shortness of breath and nocturia (two to three times a night).

    
    

75. A.A. provided Respondent with a written medical history, which revealed, among other things, that he was a heavy smoker.

    
    

76. During his physical examination of A.A., Respondent observed and noted in his written record of the examination, among other things, inspiratory wheezes, prolonged expiration, shortness of breath and that A.A. gave the appearance of being chronically ill.

    
    

77. Respondent diagnosed A.A.'s condition as C.O.P.D. (chronic obstructive pulmonary disease) and what Respondent termed "tobaccism," which is a nonstandard diagnosis.

    
    

78. Respondent ordered an EKG, spirometry, urinalysis and blood tests.

    
    

79. He failed to order a chest x-ray, notwithstanding that A.A. had indicated he was a heavy smoker and that Respondent's examination had revealed that A.A. had shortness of breath and that he had the appearance of someone who was chronically ill.

    
    

80. Under such circumstances, it was quite possible that A.A. was suffering from C.O.P.D., as Respondent had opined. There were other possibilities, however, such as cancer, 6/ tuberculosis, pneumonia and congestive heart failure. In order to fully investigate these other possibilities, it was necessary for Respondent to order a chest x-ray.

    
    

81. On or about September 11, 1992, A.A. returned to Respondent complaining of intermittent coughing spells.

    
    

82. Respondent examined A.A. and observed prolonged wheezing.

    
    

83. Respondent diagnosed A.A.'s condition as C.O.P.D. and hypertensive disease and treated him with bronchodilators.

    
    

84. Although a diagnosis of hypertensive disease requires a baseline chest x-ray as part of the initial evaluation, Respondent made his diagnosis without the benefit of such an x-ray.

    
    

85. A.A. next visited Respondent on October 19, 1992, complaining of extreme nervousness and inability to sleep.

    
    

86. Respondent found that A.A. was expectorating large amounts of mucus.

    
    

87. Respondent treated A.A. with Sinequan, which is an antidepressant that helps with sleep.

    
    

88. Once again Respondent failed to order a chest x-ray.

    
    

89. A.A. returned to Respondent on November 23, 1992, complaining of shortness of breath and nocturia.

90. Respondent examined A.A. and discovered a soft mass in the supraclavicular area. He also noted that A.A. had a heart murmur.

    
    

91. Respondent finally ordered a chest x-ray. The x-ray revealed pleural effusion.

    
    

92. Subsequent testing detected inoperable cancer, which led to A.A.'s death on May 9, 1993.

    
    

93. In waiting until A.A.'s fourth visit before ordering a chest x-ray and, as a result, not making an earlier diagnosis of A.A.'s cancer, Respondent failed to practice medicine with that level of care, skill and treatment that, in light of the surrounding circumstances, a reasonably prudent internist would have recognized as being acceptable and appropriate at the time.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

95. Where the disciplinary action sought is the revocation or suspension of the physician's license, the proof of guilt must be clear and convincing. See Section 458.331(3), Fla. Stat.; Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So.2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So.2d 500 (Fla. 3d DCA 1991). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

96. Where the discipline does not involve the loss of licensure, the physician's guilt need be established by only a preponderance of the evidence. See 458.331(3), Fla. Stat.; Allen v. School Board of Dade County, 571 So.2d 568, 569 (Fla. 3d DCA 1990).

    
    

97. Regardless of the disciplinary action taken, it may be based only upon the violations specifically alleged in the administrative complaint. See Kinney

    v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).

    
    

98. Furthermore, in determining whether Section 458.331(1), Florida Statutes, has been violated in the manner charged in the administrative complaint, one "must bear in mind that it is, in effect, a penal statute. . . This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977).

99. Collectively, the Administrative Complaints issued in the instant consolidated cases charge Respondent with: four counts of violating subsection (1)(t) of Section 458.331, Florida Statutes; three counts of violating subsection (1)(m) of Section 458.331, Florida Statutes; one count of violating subsection (1)(c) of Section 458.331, Florida Statutes; one count of violating subsection (1)(h) of Section 458.331, Florida Statutes; and one count of violating subsection (1)(x) of Section 458.331, Florida Statutes.

    
    

100. At all times material to these consolidated cases, subsection (1)(t) of Section 458.331, Florida Statutes, has authorized the Department to discipline a Florida-licensed physician for "[g]ross or repeated 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."

     
     

101. A physician may be found guilty of such a violation based upon only a single "instance, event or act." Section 458.331(1)(t), Fla. Stat.

     
     

102. Administrative Complaint #1 alleges that Respondent violated subsection (1)(t) of Section 458.331, Florida Statutes, in connection with his care and treatment of R.D., by "fail[ing] to do the following: institute intravenous treatment for [R.D.] in a timely manner by surgically inserting a central venous line by cut down; order a surgical consult in order to place the central venous line in an appropriate manner; order a post-procedure chest x- ray to rule out the possibility of pneumothorax following his second unsuccessful attempt(s) to place a central venous line; and order an evaluation of [R.D.] by the E.R. physician when first contacted by nursing staff on the day before [R.D.'s] death."

     
     

103. With respect to the allegations concerning central line placement, the evidence establishes that, at the request of R.D.'s attending physician at MCH, Dr. Mutch, Respondent did attempt such placement, albeit unsuccessfully, on two separate occasions and that following each failed attempt, including the second one, he did order a post-procedure chest x-ray. Furthermore, there has been no clear and convincing showing that there was any unreasonable delay on Respondent's part in making these attempts or that these attempts failed through any fault of Respondent's. Moreover, the evidence does not clearly and convincingly demonstrate that a reasonably prudent internist in Respondent's position would have sought to obtain a surgical consultation to facilitate the placement ordered by the patient's attending physician rather than assuming that the attending physician would take care of any arrangements that needed to be made in order to procure the services of a surgeon to assist in the care and treatment of the patient.

     
     

104. With respect to the allegation concerning Respondent's failure to "order an evaluation of [R.D.] by the E.R. physician when first contacted by nursing staff on the day before [R.D.'s] death," the evidence does not clearly and convincingly establish that, when Respondent was first contacted on the day in question, the nursing staff provided him with information about R.D.'s condition that would have led a reasonably prudent internist to order such an immediate evaluation.

     
     

105. In view of the foregoing, Administrative Complaint #1 should be dismissed.

106. Count 5 of Administrative Complaint #2 alleges that Respondent violated subsection (1)(t) of Section 458.331, Florida Statutes, in connection with his care and treatment of M.L., by "fail[ing] to adequately examine, diagnose, and/or treat [M.L.'s] chronic headaches."

     
     

107. This allegation is not supported by clear and convincing evidence. Indeed, in his testimony, the Agency's lone expert witness did not even address the subject of Respondent's care and treatment of M.L.

     
     

108. Accordingly, Count 5 of Administrative Complaint #2 should be dismissed.

     
     

109. Count 1 of Administrative Complaint #3 alleges that Respondent violated subsection (1)(t) of Section 458.331, Florida Statutes, in connection with his care and treatment of A.M.D., by "fail[ing] to order the appropriate tests to properly assess the condition of Patient A.M.D.; fail[ing] to order or recommend the appropriate consultations and/or referrals; failing to make the appropriate timely diagnoses of Patient A.M.D.; [and] fail[ing] to provide Patient A.M.D. with the appropriate treatment plan."

     
     

110. The evidence clearly and convincingly establishes that in not doing the following while A.M.D. was hospitalized at PGH and under his care, Respondent failed to practice medicine with that level of care, skill and treatment that, in light of the surrounding circumstances, a reasonably prudent internist would have recognized as being acceptable and appropriate at the time: ordering multiple blood cultures upon A.M.D.'s admission to the hospital in order to properly assess her condition; attempting to seek a consultation with an infectious disease specialist and ordering that A.M.D.'s treatment plan be modified to include intravenous administration of high dosages of at least two different broad spectrum, latest generation antibiotics when A.M.D. still had a high fever following the first several days of her hospitalization and the diagnosis of her condition remained obscure; seeking to obtain a consultation with a cardiologist when A.M.D. suffered congestive heart failure; and appropriately treating A.M.D. with antibiotics throughout the time she was under his care, including the period following the brief improvement in her condition and reduction of her temperature to normal.

     
     

111. In failing to take such action, as alleged in Count 1 of Administrative Complaint #3, Respondent violated subsection (1)(t) of Section 458.331, Florida Statutes, and he should be disciplined therefor.

     
     

112. Count 1 of Administrative Complaint #4 alleges that Respondent violated subsection (1)(t) of Section 458.331, Florida Statutes, in connection with his care and treatment of A.A., by "fail[ing] to order a chest x-ray for Patient A.A. on several occasions when the symptoms warranted and required a chest x-ray to be performed; inappropriately treat[ing] Patient A.A.'s condition on or about 19 October 1992 with tranquillizers; fail[ing] to properly assess Patient A.A.'s condition; and fail[ing] to make a timely diagnosis of Patient A.A.'s cancer."

     
     

113. With respect to the allegation concerning Respondent's treatment of

     A.A. with tranquilizers on October 19, 1992, the evidence establishes that on that day, A.A. presented to Respondent complaining of being unable to sleep and that Respondent treated A.A. with Sinequan, an antidepressant that helps with sleep. While such treatment may not have addressed A.A.'s other symptoms, it was an appropriate means of dealing with A.A.'s inability to sleep and there has been no showing that the use of Sinequan was, for any reason, contraindicated.

114. Accordingly, to the extent that Count 1 of Administrative Complaint #4 alleges that Respondent inappropriately treated A.A. with Sinequan on October 19, 1992, it should be dismissed.

     
     

115. The evidence does clearly and convincingly establish, however, that in waiting until A.A.'s fourth visit to his office before ordering a chest x-ray and, as a result, not making an earlier diagnosis of A.A.'s cancer, Respondent failed to practice medicine with that level of care, skill and treatment that, in light of the surrounding circumstances, a reasonably prudent internist would have recognized as being acceptable and appropriate at the time.

     
     

116. In so doing, as alleged in Count 1 of Administrative Complaint #4, Respondent violated subsection (1)(t) of Section 458.331, Florida Statutes, and he should be disciplined therefor.

     
     

117. At all times material to these consolidated cases, subsection (1)(m) of Section 458.331, Florida Statutes, has authorized the Board to discipline a Florida-licensed physician for "[f]ailing 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."

     
     

118. This statutory provision does not purport to encompass "JCAH standards or those of a 'reasonably prudent physician;'" nor can it "be interpreted as authorizing disciplinary action for a physician's failure to document in a patient's medical chart a basis for not undertaking a particular course of treatment." Breesmen v. Department of Professional Regulation, Board of Medicine, 567 So.2d 469, 471 (Fla. 1st DCA 1990).

     
     

119. Count 4 of Administrative Complaint #2 alleges that Respondent violated subsection (1)(m) of Section 458.331, Florida Statutes, in connection with his care and treatment of M.L., by "fail[ing] to keep written medical records justifying the course of treatment for [M.L.] in that during Respondent's initial examination of [M.L.], Respondent made no notation showing that he had taken a history of [M.L.'s] current complaint or explored its possible etiology."

     
     

120. An examination of the records maintained at the Centre, where Respondent treated M.L., reveals that they do reflect that, during this initial examination, Respondent did explore the history and possible etiology of M.L.'s chronic headaches.

     
     

121. Accordingly, to the extent that it alleges the contrary, Count 4 of Administrative Complaint #2 should be dismissed.

     
     

122. Count 2 of Administrative Complaint #3 alleges that Respondent violated subsection (1)(m) of Section 458.331, Florida Statutes, in connection with his care and treatment of A.M.D., by "fail[ing] to document the appropriate consultations and/or recommendations for consultations and referrals; [and] fail[ing] to document justification of the course of treatment that was followed without significant and consist[e]nt improvements."

123. The evidence establishes that, it was Respondent's care and treatment of A.M.D., not his recordkeeping in connection therewith, that was substandard. 7/ There has been no showing that Respondent failed to include in his records any pertinent information or material that existed concerning the care and treatment of A.M.D. There is no documentation of "appropriate consultations and/or recommendations for consultations and referrals" in Respondent's records, not because he failed to document such consultations and recommendations, but because such consultations and recommendations were never made. Likewise, that there is no documentation in his records justifying his course of treatment of

     A.M.D. is the product, not of poor recordkeeping on his part, but of the inappropriateness of his treatment.

     
     

124. Under such circumstances, the lack of documentation cited in Count 2 of Administrative Complaint #3 does not constitute a violation of subsection (1)(m) of Section 458.331, Florida Statutes. See Breesmen v. Department of Professional Regulation, Board of Medicine, 567 So.2d at 471.

     
     

125. Accordingly, Count 2 of Administrative Complaint #3 should be dismissed.

     
     

126. Count 2 of Administrative Complaint #4 alleges that Respondent violated subsection (1)(m) of Section 458.331, Florida Statutes, in connection with his care and treatment of A.A., by "fail[ing] to "keep adequate medical records of his treatment of Patient A.A., including, but not limited to, the documentation of an adequate physical examination and/or medical history."

     
     

127. An review of Respondent's records of his treatment of A.A. reflect that they do contain a copy of the written medical history A.A. provided Respondent, as well as documentation of the results of physical examinations of A.A.

     
     

128. The evidence does not clearly and convincingly show that such documentation is insufficient to meet the recordkeeping requirements of subsection (1)(m) of Section 458.331, Florida Statutes.

     
     

129. Accordingly, Count 2 of Administrative Complaint #4 should be dismissed.

     
     

130. At all times material to the instant case, subsection (1)(c) of Section 458.331, Florida Statutes, has authorized the Board to discipline a Florida-licensed physician for "[b]eing convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of medicine or to the ability to practice medicine."

     
     

131. Count 1 of Administrative Complaint #2 alleges that Respondent violated subsection (1)(c) of Section 458.331, Florida Statutes, by entering a plea of nolo contendere on September 12, 1989, "to the offense of referring a patient to a business entity without disclosure of financial interest," which unquestionably is a crime that "directly relates to the practice of medicine."

     
     

132. The evidence clearly and convincingly establishes that Respondent entered such a plea.

     
     

133. In so doing, as alleged in Count 1 of Administrative Complaint #2, Respondent violated subsection (1)(c) of Section 458.331, Florida Statutes, and he should be disciplined therefor.

134. At all times material to the instant case, subsection (1)(h) of Section 458.331, Florida Statutes, has authorized the Board to discipline a Florida-licensed physician for "[m]aking or filing a report [in the licensee's capacity as a licensed physician] which the licensee knows to be false."

     
     

135. Count 3 of Administrative Complaint #2 alleges that Respondent violated subsection (1)(h) of Section 458.331, Florida Statutes, by "ma[king] or fil[ing] a report which [he] knew to be false in that Respondent did not see [p]atient [M.L.] more than two (2) or three (3) times [but he] personally signed twenty (20) bills, which were submitted to [M.L.'s] insurance carrier, for [M.L.'s] examination and treatment."

     
     

136. While Respondent's signature does appear on 20 bills for services provided M.L. at the Centre, the evidence does not clearly and convincingly establish that any of these bills contain information that Respondent knew to be false at the time he signed the bills.

     
     

137. Accordingly, Count 3 of Administrative Complaint #2 should be dismissed.

     
     

138. At all times material to the instant case, subsection (1)(x) of Section 458.331, Florida Statutes, has authorized the Board to discipline a Florida-licensed physician for "[v]iolating any provision of . . . [C]hapter [458, Florida Statutes.]"

     
     

139. Count 2 of Administrative Complaint #2 alleges that Respondent violated subsection (1)(x) of Section 458.331, Florida Statutes, by practicing medicine without an active license at the Centre from on or about December 27, 1988, until on or about April 20, 1989, contrary to Section 458.327(1)(a), Florida Statutes, which, during this period of time, prohibited "[t]he practice of medicine . . . without an active license."

     
     

140. The evidence clearly and convincingly establishes that Respondent practiced medicine at the Centre during at least a portion of this period while his license was inactive.

     
     

141. In so doing, as alleged in Count 2 of Administrative Complaint #2, Respondent violated Section 458.327(1)(a), Florida Statutes, and, resultingly, subsection (1)(x) of 458.331, Florida Statutes, as well.

     
     

142. The Board, however, may not discipline Respondent for having committed this violation of subsection (1)(x) of 458.331, Florida Statutes, inasmuch as it has already done so in DPR Case No. 89-0925, wherein Respondent was charged with practicing medicine with an inactive license from on or about January 1, 1984, until on or about November 22, 1989, and, pursuant to the terms of a settlement stipulation, the Board fined Respondent $500.00. A licensee may not be disciplined twice for the same violation. Cf. Department of Transportation v. Career Service Commission, 366 So.2d 473, 474 (Fla. 1st DCA 1979)(agency's disciplining its employee twice for the same offense was "fundamentally unfair").

     
     

143. The Board is now, and was at all times material to these consolidated cases, authorized to impose one or more of the following penalties for a violation of subsection (1) of Section 458.331, Florida Statutes: license revocation; license suspension; restriction of practice; an administrative

     fine not to exceed $5,000.00 for each count or separate offense; a reprimand; probation; a letter of concern; corrective action; and a refund of fees billed to and collected from the patient. Section 458.331(2), Fla. Stat.

     
     

144. In determining which of these penalties the Board should select, it is necessary to consult Chapter 61F6-20, Florida Administrative Code, which contains the disciplinary guidelines adopted by the Board. Cf. Williams v. Department of Transportation, 531 So.2d 994, 996 (Fla. 1st DCA 1988)(agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).

     
     

145. Subsection (2) of Rule 61F6-20.001, Florida Administrative Code, sets forth "the range of penalties which will routinely be imposed" for a "single count violation" of each of the statutory provisions listed.

     
     

146. For a "single count violation" of subsection (1)(t) of Section 458.331, Florida Statutes, the normal "range of penalties," as prescribed by subsection (2) of Rule 61F6-20.001, Florida Administrative Code, is a minimum of two years probation up to a maximum of license revocation and an administrative fine of $5,000.00.

     
     

147. For a "single count violation" of subsection (1)(c) of Section 458.331, Florida Statutes, the normal "range of penalties," as prescribed by subsection (2) of Rule 61F6-20.001, Florida Administrative Code, is a minimum of probation up to a maximum of license revocation and an administrative fine of

     $5,000.00.

     
     

148. Subsection (3) of Rule 61F6-20.001, Florida Administrative Code, provides that the Board may impose a penalty outside the normal range where there are mitigating or aggravating circumstances.

     
     

149. The mitigating or aggravating circumstances that, according to subsection (3) of Rule 61F6-20.001, Florida Administrative Code, may warrant such a deviation are as follows:

     
     

     1. Exposure of patient or public to injury or potential injury, physical or otherwise:

        none, slight, severe or death;

     2. Legal status at the time of the offense: no restraints or legal constraints;

     3. The number of counts or separate offenses established;

     4. The number of times the same offense or offenses have previously been committed by the licensee . . .;

     5. The disciplinary history of the . . . licensee in any jurisdiction and the length of practice;

     6. Pecuniary benefit or self-gain inuring to the . . . licensee;

     7. Any other relevant mitigating factors.

        
        

150. Subsection (1) of Rule 61F6-20.001, Florida Administrative Code, provides that "[m]ultiple counts of the violated provision or a combination of the violations may result in a higher penalty than that for a single, isolated violation."

151. Having carefully considered the facts of the instant case in light of the principles of law and statutory and rule provisions set forth above, the Hearing Officer concludes that the appropriate penalty to impose upon Respondent for committing the violations noted above is the suspension of his license for a period of eighteen months, followed by five years probation, and the imposition of an administrative fine in the amount of $4,000.00.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board enter a final order finding Respondent guilty of the violations of subsection (1) of Section 458.331, Florida Statutes, noted above, dismissing the remaining allegations against him and disciplining him for the violations he committed by suspending his license for a period of eighteen months, placing him on probation for the following five years, and imposing an administrative fine in the amount of $4,000.00.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of November, 1994.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1994.

ENDNOTES

1/ The hearing was originally scheduled to commence on March 15, 1994, but was continued at the Department's request.

2/ Dr. Ehrlich has been board certified in internal medicine since 1994, and has practiced internal medicine for over 20 years.

3/ It is unclear from the record precisely what the nurse told Respondent. 4/ It is unclear what Respondent's signature on these bills signifies.

5/ In lieu of attempting to obtain such a consultation, he conferred with the head of the internal medicine department at the hospital, as well as the hospital's medical director. While there may not have been an infectious disease specialist on staff at the hospital, one was only a phone call away.

6/ There is a higher incidence of C.O.P.D. and lung cancer among smokers than among nonsmokers.

7/ The Agency's own expert witness testified that Respondent's notes in this case were "fine."

APPENDIX TO RECOMMENDED ORDER

The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the Agency in its proposed recommended order:

1-12. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

1. Rejected because it is without sufficient evidentiary support.

2. To the extent that this proposed finding states that "Respondent signed twenty (20) bills . . . for Patient M.L.'s examination and treatment," it has been accepted and incorporated in substance. To the extent that it states that these bills "were sent to Patient M.L.'s insurance carrier," it has been rejected because it is without sufficient evidentiary support.

3. Rejected because it is without sufficient evidentiary support.

4. Accepted and incorporated in substance.

5. Not incorporated in this Recommended Order because, even if true, it would have no bearing on the outcome of the instant case.

18-31. Accepted and incorporated in substance.

1. Rejected because it is without sufficient evidentiary support.

2. Accepted and incorporated in substance.

3. To the extent that this proposed finding states that "Respondent subsequently failed to attempt a second placement of a central venous line for another two (2) days," it has been accepted and incorporated in substance. To the extent that it states that it was "inappropriate" for Respondent to have waited two days to make such a subsequent attempt, it has been rejected because it is without sufficient evidentiary support.

4. Accepted and incorporated in substance.

5. To the extent that this proposed finding states that at approximately 1:00 a.m. on or about March 24, 1991, the duty nurse telephoned Respondent and spoke to him about R.D., it has been accepted and incorporated in substance. To the extent that it purports to detail what the duty nurse told Respondent about R.D.'s condition, it has been rejected because it is without sufficient evidentiary support.

37-45. Accepted and incorporated in substance.

46. Rejected because it is without sufficient evidentiary support. 47-67. Accepted and incorporated in substance.

68. To the extent that this proposed finding states that Respondent's records contain neither documentation of "appropriate consultations and/or recommendations for consultations and referrals" nor documentation justifying his course of treatment of A.M.D., it has been accepted and incorporated in substance. To the extent that it suggests that the lack of such documentation is the product of Respondent's failure to meet his recordkeeping responsibilities, it has been rejected as unpersuasive argument.

69-72. Accepted and incorporated in substance.

73. Rejected because it is without sufficient evidentiary support. 74-82. Accepted and incorporated in substance.

1. First sentence: Accepted and incorporated in substance; Second sentence: To the extent that this proposed finding states that Respondent's treatment of A.A. with Sinequan was inappropriate, it has been rejected because it without sufficient evidentiary support. To the extent that it states that such treatment did not address Respondent's problem of expectorating large amounts of mucus, it has been accepted and incorporated in substance.

2. Accepted and incorporated in substance.

3. Rejected because it is without sufficient evidentiary support. 86-90. Accepted and incorporated in substance.

1. To the extent that this proposed finding states that Respondent was "guilty of gross or repeated 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" by "inappropriately treat[ing] Patient A.A.'s condition on or about October 19, 1992, with tranquillizers," it has been rejected because it is without sufficient evidentiary support. Otherwise, it has been accepted and incorporated in substance.

2. Rejected because it is without sufficient evidentiary support.

3. To the extent that this proposed finding states that Dr. Ehrlich "was Board Certified in Internal Medicine in 1974 and has practiced in the field for over twenty years," it has been accepted and incorporated in substance. Otherwise, it has been rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.

4. Accepted and incorporated in substance.

COPIES FURNISHED:

Francesca Plendl, Esquire Agency for Health Care

Administration

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Jerry J. Nemecek, M.D. 8220 N.W. 21st Street Sunrise, Florida 33322

Dr. Marm Harris, Executive Director Board of Medicine

Agency for Health Care Administration

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack McRay, Esquire General Counsel

Agency for Health Care Administration

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 of time 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: 93-002640

Orders for Case No: 93-002640