STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 93-3296

) ERIC DALE ROSENKRANTZ, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings at Miami, Florida, on March 3, 1994. Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: Carlos Ramos, Esquire, 1/ and

Steve Rothenburg, Esquire Senior Attorneys

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0794

For Respondent: Harold M. Braxton, Esquire

Suite 400, One Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156

STATEMENT OF THE ISSUES

This is a license discipline case in which the Petitioner seeks to take disciplinary action against a medical doctor on the basis of alleged violations of paragraphs (d), (g), (k), (m), (n) and (t) of Section 458.331(1), Florida Statutes (1989). The violations charged relate primarily to allegations that the Respondent improperly ordered and performed certain allegedly unnecessary tests, failed to keep appropriate records, and deceived and exploited a patient.

PRELIMINARY STATEMENT

At the hearing on March 3, 1994, the Petitioner presented the live testimony of two witnesses and the deposition testimony of an expert witness. The Petitioner also offered a total of seven exhibits, of which five were received in evidence. 1/ The Respondent testified on his own behalf, recalled one of the Petitioner's witnesses, and also presented the live testimony of two expert witnesses. The Respondent also offered four exhibits, all of which were received. At the conclusion of the hearing the parties requested and were

granted ten days from the filing of the transcript within which to file their proposed recommended orders. A transcript of the proceedings was filed with the Hearing Officer on March 22, 1994. Thereafter, all parties timely served their proposed recommended orders containing proposed findings of fact and conclusions of law. The parties' proposals have been carefully considered during the preparation of this Recommended Order. Specific rulings on all findings of fact proposed by the parties are contained in the appendix hereto.

To facilitate an understanding of the findings of fact which follow, it is noted that the disposition of many of the issues in this case turns on which of several conflicting expert opinions were more convincing and reliable. On all of the material issues, the opinions of the medical experts who testified on behalf of the Respondent have been found to be more convincing than the opposing opinions presented on behalf of the Petitioner. It is also noted that the testimony of the patient E. G. 3/ was in many respects vague, uncertain, and incomplete, as a result of which much of her testimony has been found not to be sufficiently clear and convincing to support fact-finding in a case of this nature where the Petitioner bears the burden of proving its charges by clear and convincing evidence.

FINDINGS OF FACT

1. The Respondent, Eric Dale Rosenkrantz, M. D., is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME 0045339. The Respondent's last known address is 12900

   N.E. 17 Avenue, Suite 205, North Miami, Florida 33181. The Respondent is board certified in Internal Medicine and he is board eligible in Cardiovascular medicine.

   
   

2. On October 18, 1989, a Health Fair was held at the Diplomat Mall in Hallandale, Florida. The Health Fair had been advertised by distribution of a written news release. The Respondent did not participate in the preparation of the news release, nor had he seen a copy of the news release prior to the date of the Health Fair. The news release read, in pertinent part:

   
   

   . . . Make good health a priority in your life. It's much better to take a few tests and learn effective disease prevention than to fall victim to a crippler. As a community service, Diplomat Mall sponsors a free Health Fair on Tuesday,

   Wednesday and Thursday (October 17-19). The public may take advantage of free screenings, a low cost cholesterol test and receive helpful advice.

   
   

   Dr. Lloyd Morris, who also serves as the Health Fair Coordinator, will offer cholesterol tests for five dollars. In addition, he'll conduct spinal screenings. If you're having trouble listening and not catching every word, check with the Hearing Aid Center's expert for a hearing test. A local cardiologist will consult

   with visitors regarding their health patterns and will give carotid artery tests.

   
   

   For those battling to stop smoking, there will be a unique Stop Smoking Computer. Dental screenings and information on cosmetic dentistry

   will be available. Dr. Braverman will examine and evaluate eyes and eye problems. NSA will provide a pure water display illustrating the dangers of untreated waters.

   
   

   COLOR ME THIN, an innovative consulting service will provide clinical nutritional counseling and discuss colors in relation to energy levels of the body.

   
   

   Representatives of the Medical Alert System will also be in attendance during the free Health Fair at the Diplomat Mall, located on East Hallandale Beach Boulevard in Hallandale. (Emphasis added)

   
   

3. The Respondent participated in the Health Fair described above. The Respondent was the only cardiologist who participated in that Health Fair. 4/ In connection with the Health Fair the Respondent did not have any signs offering free testing or any other free services.

   
   

4. During the course of the Health Fair described above, the Respondent had a booth in the mall. He and his technologist were demonstrating a diagnostic ultrasound machine, which visualizes internal and external carotid arteries on a screen, and were handing out papers regarding risk factors for heart disease.

   
   

5. On October 18, 1989, while the Health Fair was in progress, E. G. went to the Diplomat Mall where, among other things, she saw the Respondent's booth. Prior to going to the mall that day, E. G. had seen a newspaper advertisement about the Health Fair, but she had not seen the press release described and quoted above. E. G. approached the Respondent's booth where she communicated with one or more of the people who were attending the booth. As a result of those communications, 5/ the Respondent was escorted to the Respondent's office in the mall.

   
   

6. At the Respondent's office E. G. provided her health insurance card to the Respondent's nurse. The nurse made a photocopy of the card and returned it to E. G. The nurse then took a preliminary screening medical history from E. G. by asking E. G. a series of questions and noting the responses on a printed form. 6/ The preliminary medical history given by E. G. included that she was

   64 years old, had suffered a prior heart attack, was a diabetic on medication, had a history of heart disease in her family, and had a personal physician named Dr. Gorin. E. G. also related current symptoms of dizziness, numbness in her hands and feet, and shortness of breath.

   
   

7. The preliminary history form included a place for the patient's signature at the bottom of the form. Immediately above the signature line the following statement appears on the form:

   
   

   I completely understand that the follow-thru test for arterial blockage (if deemed necessary by the examining physician of this program)

   will be billed to my insurance carrier or Medicare.

   I understand that this assignment of my health insurance is extended as a courtesy to me to avoid up front out-of- pocket costs.

   
   

   E. G. signed the form at the place indicated immediately under the statement quoted immediately above.

   
   

8. After signing the form described above, E. G. was escorted to an examination room where she was further questioned about her medical history and current symptoms by the Respondent. E. G. repeated to the Respondent that she was suffering from shortness of breath, numbness in her left arm, and dizziness which lasted for several minutes at a time. E. G. also told the Respondent that she had not seen Dr. Gorin for a long time and that it had been a long time since she had undergone a complete examination. After eliciting her history and current symptoms, the Respondent conducted a physical examination of the patient

   E. G. The physical examination included taking her blood pressure, measuring her respiratory rate,examination of her eyes, neck, carotid sounds, and chest, cardiac auscultation, and palpation of her extremities for pulses.

   
   

9. The Respondent's findings on examination were that the patient E. G. had a normal blood pressure, a pulse rate of 78, a respiratory rate of 18, arcus senilis, a bruit on the left carotid artery, a laterally displaced point of maximum intensity, a heart murmur, and decreased pulses in her extremities.

   
   

10. Arcus senilis is a sign of arteriosclerosis, which is a thickening of the arterial vessels. Arteriosclerosis is the most common cause of coronary artery disease.

    
    

11. A laterally displaced point of maximum intensity is a finding that is common in hypertensive patients.

    
    

12. A heart murmur is indicative of some back flow or other insufficiency of one of the heart valves.

    
    

13. Decreased pulses in the extremities is indicative of a possible arterial blockage.

    
    

14. On the basis of the history he obtained from the patient and the results of his physical examination of the patient, the Respondent reached the following preliminary diagnostic impression: "Hypertensive cardiovascular disease, myocardial ischemia, mitral regurgitation, claudication, and cerebral insufficiency." On the basis of his preliminary impression, the Respondent recommended that the patient E. G. undergo the following tests: cardiac doppler (echocardiogram), carotid imaging, upper arterial doppler, venous doppler, atrioventricular 1000 venous, and atrioventricular 1000 arterial tests. The patient E. G. agreed to undergo the recommended tests, which were then performed by a technologist employed by the Respondent. 7/

    
    

15. The patient's history and the results of the physical examination of the patient were a sufficient basis for going forward with the tests recommended by the Respondent. Each of the tests was justified by the patient's symptoms and by the results of the physical examination of the patient. Each of the tests was reasonably calculated to assist the Respondent in arriving at a diagnosis of patient E. G.'s condition. In view of the patient's symptoms and

    the findings during the physical examination, it was not a departure from accepted standards of care for the Respondent to recommend the tests described above and have them performed on the patient E. G.

    
    

16. All of the tests described in Paragraph 14, above, are tests commonly used by cardiologists for the purpose of diagnosis. Many cardiologists perform those tests in their own offices, rather than send patients elsewhere for such testing.

    
    

17. The Respondent's medical records regarding the patient E. G. are sufficient to justify the course of treatment for the patient. Those records contain all information a subsequent treating physician would need to know about the Respondent's treatment of the patient. The records do not depart from accepted standards of care.

    
    

18. The Respondent subsequently billed E. G. $3,230.00 for the recommended tests and other services. E. G.'s insurance company rejected payment for the subject tests because her insurance coverage had expired.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.

    
    

20. In a license discipline proceeding of this nature the Petitioner bears the burden of proving its charges by clear and convincing evidence. See Ferris

    v. Turlington, 510 So.2d 292 (Fla. 1987). The nature of clear and convincing evidence has been described as follows in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983):

    
    

    We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as

    to the facts in issue. 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.

    
    

    See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which, at page 958, quotes with approval the

    above

    following at page 958:

    
    

    "Clear and convincing evidence" is an intermediate standard of proof, more than the "preponderance

    of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v.

    Graham, 240 So.2d 486 (Fla. 2d DCA 1970).

21. Section 458.311(1), Florida Statutes (1989), reads as follows in pertinent part:

    
    

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

       ***

       (d) False, deceptive, or misleading advertising.

       ***

       (g) Failing to perform any statutory or legal obligation placed upon a licensed physician.

       ***

       (k) Making deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick or scheme in the practice of medicine.

       ***

       1. 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.

       2. Exercising influence over the patient or client in such a manner as to exploit the patient or client for financial gain of the licensee or of a third party, which shall include, but not be limited to, the promoting or selling of services, goods, appliances, or drugs.

       ***

       (t) 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. . . .

       
       

22. Section 766.111, Florida Statutes (1989), reads as follows, in pertinent part:

    
    

    1. No health care provider licensed pursuant to chapter 458, chapter 459, chapter 460, chapter

       461, or chapter 466 shall order, procure, provide, or administer unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treat- ment of a patient's condition.

    2. A violation of this section shall be grounds for disciplinary action pursuant to s. 458.331, s. 459.015, s. 460.413, s. 461.013, or s. 466.028,

       as applicable.

       
       

       Count One

       
       

23. Count One charges that the Respondent violated Section 458.331(1)(t), Florida Statutes, "in that Respondent ordered unnecessary and excessive tests for Patient #1 without obtaining a medical history or performing a physical examination, and Respondent failed to determine a diagnosis or a plan of

    treatment for Patient #1." The evidence is insufficient to establish the allegations of this count for several reasons. First, the greater weight of the evidence is to the effect that the Respondent's treatment of the patient E. G. did not depart from the standard of care described at Section 458.331(1)(t), Florida Statutes. Second, the greater weight of the evidence is to the effect that all of the tests ordered by the Respondent for the patient E. G. were reasonably calculated to assist the Respondent in arriving at a diagnosis and treatment of the patient's condition. Third, the evidence clearly shows that the Respondent obtained a medical history and performed a physical examination of E. G. before ordering the subject tests. Fourth, the evidence also clearly shows that the Respondent did make a diagnosis on the basis of the test results. Finally, although the Respondent did not make a plan of treatment, the record contains no expert opinion to the effect that a plan of treatment was required under the circumstances of this case, nor is there any expert opinion in the record of this case that expresses any criticism of the fact that the Respondent's records do not contain a plan of treatment. For these reasons the evidence is insufficient to establish a violation of Section 458.331(1)(t), Florida Statutes, and Count One of the Administrative Complaint should be dismissed.

    
    

    Count Two

    
    

24. Count Two charges that the Respondent violated Section 458.331(1)(k), Florida Statutes, "in that Respondent inappropriately utilized the Health Care Fair to attract patients to his office for unnecessary and excessive testing." In order to establish a violation of Section 458.331(1)(k), Florida Statutes, the evidence must prove either that the Respondent made "deceptive, untrue, or fraudulent representations" or that the Respondent employed a "trick or scheme." There is no clear and convincing evidence that the Respondent did either. Accordingly, Count Two of the Administrative Complaint should be dismissed.

    
    

    Count Three

    
    

25. Count Three charges that the Respondent violated Section 458.331(1)(d), Florida Statutes, "in that Respondent advertised free cardiac testing to be performed at the Health Care Fair when in fact most of the tests performed by Respondent did not test cardiac functions, and Respondent inappropriately billed Patient #1 for the tests." There is no clear and convincing evidence that the Respondent engaged in any advertising in conjunction with the health fair. The greater weight of the evidence is to the effect that the Respondent did not advertise any free testing. There is also no clear and convincing evidence that the Respondent inappropriately billed the patient E. G. Because the evidence is insufficient, Count Three of the Administrative Complaint should be dismissed.

    
    

    Count Four

    
    

26. Count Four charges that the Respondent violated Section 458.331(1)(n), Florida Statutes, "in that Respondent performed unnecessary and excessive diagnostic tests on Patient #1 without providing medical justification for the tests and Respondent attempted to illegally bill Patient #1 for the 'free cardiac testing' by requesting insurance information from Patient #1." The greater weight of the evidence in this case is to the effect that all of the tests ordered by the Respondent for the patient E. G. were reasonably calculated to assist the Respondent in arriving at a diagnosis and treatment of the patient's condition. Similarly, the greater weight of the evidence is to the effect that the tests were medically justified. Such being the case, those

    tests cannot be said to be "unnecessary and excessive." Finally, there is no evidentiary support for the assertion that the Respondent's submission of a bill was "illegal." The allegations of Count Four of the Administrative Complaint are not supported by the evidence and should be dismissed.

    
    

    Count Five

    
    

27. Count Five charges that the Respondent violated Section 458.331(1)(m), Florida Statutes, "in that Respondent failed to document medical justification for the tests performed on Patient #1 and Respondent failed to document a plan of treatment for Patient #1." The greater weight of the evidence in this case is to the effect that the Respondent's records of his treatment of the patient

    E. G. are sufficient to justify the actions he took with regard to the patient. Further, the record contains no expert opinion to the effect that a plan of treatment was required under the circumstances of this case, nor is there any expert opinion in the record of this case that expresses any criticism of the fact that the Respondent's records do not contain a plan of treatment. Such being the case, the evidence is insufficient to establish the violation charged in this count and Count Five of the Administrative Complaint should be dismissed.

    
    

    Count Six

    
    

28. Count Six charges that the Respondent violated Section 458.331(1)(g), Florida Statutes, "in that he ordered unnecessary diagnostic tests for Patient #1 which were not reasonably calculated to assist the Respondent in arriving at a diagnosis and treatment of Patient #1's condition, contrary to Section 766.111, Florida Statutes." The greater weight of the evidence in this case is to the effect that all of the tests ordered by the Respondent for the patient E.

G. were reasonably calculated to assist the Respondent in arriving at a diagnosis and treatment of the patient's condition. Accordingly, there is no showing that the Respondent violated Section 766.111, Florida Statutes, and the charge in Count Six of the Administrative Complaint should be dismissed.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine enter a Final Order in this case dismissing all charges against the Respondent.

DONE AND ENTERED this 25th day of October, 1994, at Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 25th day of October, 1994.

ENDNOTES

1/ Carlos Ramos, Esquire, was killed in a motor vehicle accident the day after the formal hearing in this case. The Petitioner's proposed recommended order was submitted by Mr. Rothenburg.

2/ Objections to Petitioner's Exhibit 4 and 5 were sustained and those two exhibits are included in the record as rejected exhibits. Petitioner's Exhibit

4 consists of the entire licensure file regarding the Respondent and Petitioner's Exhibit 5 consists of the records of Dr. Enrique Gorin, who was the prior physician of the patient E. G. The reasons for sustaining objections to these two exhibits are stated in the transcript of hearing.

3/ Throughout this Recommended Order the subject patient is referred to only by her initials. For those who need to know, the full name of the patient is identified in the orders of the Respondent's treatment of the patient, Petitioner's Exhibit.

4/ Other health care professional participating in the Health Fair included a chiropractor, a dentist, and an optometrist.

5/ The nature of the preliminary communications between E. G. and the people attending the booth cannot be described with any greater specificity because E. G.'s testimony on this subject is vague, unclear, incomplete, and at times inconsistent.

6/ A copy of the form is included in the Respondent's medical records of the patient E. G. (See the ninth page of Petitioner's Exhibit 2.)

7/ At the time she agreed to undergo the recommended tests, it is unlikely that

E. G. has a clear understanding regarding how much the tests would cost or who would be billed for those costs. However, the evidence is in this case is insufficient to make a finding one way or the other regarding E. G.'s understanding of such matters.

APPENDIX

The following are the specific rulings on all proposed findings of fact submitted by all parties.

Findings submitted by Petitioner: Paragraph 1: Accepted.

Paragraph 2: Accepted up to the word "Florida." The portion after the word "Florida" is rejected as contrary to the greater weight of the evidence.

Paragraph 3: Accepted that E. G. stopped at the Respondent's booth. The remainder of this paragraph is rejected as contrary to the greater weight of the evidence. The greater weight of the evidence is to the effect that the Respondent did not advertise or offer any free cardiac testing.

Paragraph 4: Accepted in part and rejected in part. Accepted that E. G. went to the Respondent's office. The portion of this paragraph to the effect that the Respondent recommended that E. G. go to his office is rejected as contrary to the greater weight of the evidence; someone else at the Respondent's booth recommended that E. G. go to the Respondent's office. Some other details

are accepted in essence, but with modifications to make them consistent with the greater weight of the evidence.

Paragraph 5: Accepted.

Paragraph 6: Rejected as an over-simplification; this test is also performed for other reasons.

Paragraph 7: First sentence accepted. Second sentence rejected as an over-simplification.

Paragraph 8: Rejected as contrary to the greater weight of the evidence.

The Respondent did obtain a medical history and did perform a physical examination before ordering further tests for the patient E. G. Further, there is no persuasive clear and convincing evidence that the tests were unnecessary and excessive. To the contrary, the greater weight of the evidence is to the effect that all of the tests ordered by the Respondent were appropriate under the circumstances.

Paragraph 9: Rejected for several reasons. The portion of the proposed finding regarding failure to diagnose is rejected as contrary to the greater weight of the evidence. (Among other things, see the typed report at the pages numbered 49 through 55 of Petitioner's Exhibit 2.) The portion of the proposed finding regarding failure to determine a plan of treatment is rejected as irrelevant because the record contains no expert opinion to the effect that a plan of treatment was required under the circumstances of this case, nor is there any expert opinion in the record of this case that expresses any criticism of the fact that the Respondent's records do not contain a plan of treatment.

Paragraph 10 and 11: Rejected as not supported by persuasive clear and convincing evidence. Further, the greater weight of the evidence is to the effect that the Respondent did not advertise any

free services in connection with the health fair.

Paragraph 12: Rejected as irrelevant; the Respondent has not been charged with the act of hiring a lawyer.

Paragraph 13: Rejected as contrary to the greater weight of the evidence.

Paragraph 14: Rejected as irrelevant, because the record contains no expert opinion to the effect that a plan of treatment was required under the circumstances of this case, nor is there any expert opinion in the record of this case that expresses any criticism of the fact that the Respondent's records do not contain a plan of treatment.

Paragraph 15: Rejected as so broad, vague and unqualified a statement as to be meaningless in the absence of a specific context. Further, the statement is not supported by persuasive clear and convincing evidence. Finally, this matter is irrelevant because the Respondent has not been charged with any violations based on a failure to obtain prior medical records.

Paragraphs 16, 17, and 18: The findings proposed in these paragraphs are all rejected as irrelevant because the Respondent has not been charged with any violations based on a failure to obtain prior medical records.

Paragraph 19: Rejected as irrelevant in view of other evidence regarding the purpose of the questionnaire and regarding the history the Respondent obtained from E. G.

Paragraph 20: Rejected as not supported by persuasive clear and convincing evidence.

Findings submitted by Respondent:

Paragraphs 1 through 24: The proposals in these paragraphs have all been accepted in whole or in substance, with some modifications in the interests of clarity and accuracy.

Paragraphs 25 through 33: The essence of the proposals in these paragraphs has been accepted, but most of the details in these paragraphs have been omitted as subordinate and unnecessary.

Paragraph 34: Rejected as too broad and unqualified a statement to be either meaningful or relevant.

Paragraphs 35, 36, and 37: Accepted in substance, with some modifications in the interests of clarity and accuracy.

Paragraph 38: Rejected as irrelevant because the Respondent has not been charged with any violations based on a failure to obtain prior medical records.

Paragraphs 39 and 40: Accepted in substance.

COPIES FURNISHED:

Steve Rothenburg, Esquire Senior Attorney

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0794

Harold M. Braxton, Esquire Suite 400, One Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156

Jack McRay, General Counsel General Counsel

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Dr. Marm Harris Executive Director Board of Medicine

Agency for Health Care Administration Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-003296

Orders for Case No: 93-003296