STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, BOARD OF )

OSTEOPATHIC MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5403

)

ARTHUR LODATO, D.O., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case at Fort Lauderdale, Florida, on June 13, 1995, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kenneth J. Metzger, Esquire

Agency For Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Michael J. Doddo, Esquire

100 Southeast 12th Street

Fort Lauderdale, Florida 33316 STATEMENT OF THE ISSUES

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of charges set forth in a six-count Administrative Complaint which alleges violations of the following statutory provisions: Section 459.013(1)(a), and Section 459.015(1)(i), (n), (p), (q), (r), and (cc), Florida Statutes.

PRELIMINARY STATEMENT

This case has had a longer than usual journey through the formal administrative hearing process. After several continuances and a period of abeyance occasioned by such matters as an unsuccessful effort to resolve the proceeding by stipulation and several changes of legal counsel by both parties, the case was eventually heard on June 13, 1995. At the formal hearing the Petitioner presented the testimony of two witnesses, an agency investigator and the complaining patient. The Petitioner also offered numerous exhibits, the majority of which were received in evidence. The Respondent testified on his own behalf and also presented the testimony of two additional witnesses, the Respondent's secretary and a retired attorney. The Respondent also offered numerous exhibits, all of which were received in evidence.

During the course of the formal hearing the Hearing Officer reserved ruling on the Petitioner's request for official recognition of four documents. (The documents of which official recognition was requested were marked for identification as Petitioner's Exhibits 25, 26, 27, and 28.) Upon consideration, the objections to the request are hereby overruled and the documents previously marked for identification as Petitioner's Exhibits 25, 26, 27, and 28 are hereby officially recognized.

At the conclusion of the hearing the parties requested, and were granted, a period of thirty days from the filing of the transcript within which to file their proposed recommended orders. A transcript of the proceedings at hearing was filed with the Hearing Officer on July 25, 1995. Thereafter, the parties requested, and were granted, several extensions of the deadline for filing their proposed recommended orders. Ultimately, on October 25, 1995, both parties filed 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 to this Recommended Order.

FINDINGS OF FACT

Findings based on stipulation

1. Petitioner is the state agency charged with regulating the practice of osteopathic medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 459, Florida Statutes.

   
   

2. Respondent is, and has been at all times material hereto, licensed to practice osteopathic medicine in the State of Florida, having been issued license number OS 0001228. Respondent's last known address is 577 N.E. 107th Street, Miami, Florida 33161.

   
   

   Findings based on evidence at hearing

   
   

3. On November 5, 1990, patient N. S. initially presented to the Respondent's office for a physical examination for the purpose of obtaining health insurance with Blue Cross & Blue Shield of Florida. During the course of the initial visit, when the Respondent became aware of where N. S. and her mother lived, it was obvious to him that N. S. lived in an expensive residential area and was probably a person of substantial financial means.

   
   

4. Patient N. S. subsequently presented to the Respondent and received treatment from him for a variety of complaints on the following dates: November 14 and 27, 1990; December 10 and 20, 1990, January 7, 23, and 28, 1991, March 5, 1991, and April 15, 1991. Patient N. S. paid for all of the treatments and laboratory tests on the dates the treatments and tests took place. At the request of the Respondent, the checks written by patient N. S. to pay for services provided by the Respondent were made out to "cash."

   
   

5. One day in early January of 1991, the Respondent contacted the patient

   N. S. by telephone at her home and asked her to loan him $8,000.00 or $8,500.00. The Respondent told the patient N. S. he needed the money because he was three months behind in making payments on the mortgage on his office-house, and because the mortgage was going to be foreclosed if he failed to pay the past due amounts in the next couple of days. In the course of this conversation the Respondent also remarked to N. S. that he would not be able to help her get well

   if the mortgage were to be foreclosed and he were to lose his office. Patient

   N. S. initially refused to loan any money to the Respondent. During the course of the next two days, the Respondent made numerous repeated pleas to N. S. for a loan. Ultimately, N. S. agreed to loan the Respondent a total of $1,000.00. The loan was to be repaid within sixty days and was without interest. On January 11, 1991, patient N. S. wrote a personal check to the Respondent in the amount of $1,000.00. Thereafter, the Respondent cashed the check.

   
   

6. The patient N. S. made the $1,000.00 loan to the Respondent because she wanted the Respondent to be able to continue to treat her and not have his office repossessed.

   
   

7. The Respondent did not timely repay the $1,000.00 loan. Shortly after the due date, the patient N. S. asked the Respondent on several occasions to repay the loan. On April 15, 1991, the patient N. S. sent a certified letter to the Respondent requesting repayment of the loan. On July 2, 1991, the patient

   N. S. sent the Respondent another certified letter requesting repayment of the loan and advising the Respondent that if the loan was not repaid by July 12, 1991, she intended to send complaints to the Department of Professional Regulation and to the Internal Revenue Service.

   
   

8. During March and April of 1991, the Respondent was ill. Towards the end of April the Respondent was hospitalized and underwent surgery. The surgery was followed by several weeks of recuperation. During this period the Respondent had very little income and it was not possible for him to repay the loan to the patient N. S.

   
   

9. On July 24, 1991, the patient N. S. sent yet another certified letter to the Respondent. In the letter of July 24, 1991, the patient N. S. requested that the Respondent provide her with various specified documents related to his treatment of her, including "my complete medical records." The patient N. S. sent a copy of the July 24, 1991, letter to the Department of Professional Regulation. On that same day, the patient N. S. signed and mailed to the Department of Professional Regulation a Uniform Complaint Form complaining about the Respondent.

   
   

10. On August 29, 1991, the Sunshine Messenger Service delivered to the patient N. S. a letter from the Respondent dated August 28, 1991, which read as follows:

    
    

    Enclosed is the sum of $1000 in return for the check you loaned to me. I'm sorry that it took as long as this date to return same. Your request for your records, etc. are being copied and will be mailed very soon. Sorry for the delay. Hope you are in good health.

    
    

    The letter was accompanied by two postal money orders payable to the patient N. S., each in the amount of $500.00.

    
    

11. On September 16, 1991, Petitioner's investigator Schaublin spoke by telephone with the Respondent and at that time advised him of the Complaint that had been filed against him by his patient N. S. Investigator Schaublin advised the Respondent that two principal issues were being investigated: (1) his request and receipt of a loan that was not timely repaid, and (2) his failure to provide medical records requested by the patient. During the telephone

    conversation of September 16, 1991, the Respondent agreed to meet with the investigator at the investigator's office on September 25, 1991, and to bring with him at that time the medical records of the patient N. S.

    
    

12. On September 25, 1991, the Respondent went to the investigator's office and delivered to the investigator a set of medical records for the patient N. S. The records appeared to be facially complete. The investigator handed the Respondent a subpoena for the records at the time the records were delivered to the investigator.

    
    

13. At some time between the Respondent's receipt of the July 24, 1991, request for records and his delivery of records to the investigator on September 25, 1991, the Respondent discovered that two pages were missing from the records of the patient N. S. The missing pages consisted of the Respondent's progress notes regarding the treatment of the patient N. S. The Respondent conducted an extensive, but unsuccessful, search for the two missing pages. Upon concluding that he was unlikely to find the missing pages, the Respondent contacted an attorney and requested advice as to what he should do under the circumstances. The attorney advised the Respondent that he should do the best he could to reconstruct the missing records from his memory and from whatever other information was still available.

    
    

14. The Respondent did his best to follow the advice he had received from the attorney. In an effort to verify dates, the Respondent called the pharmacy to which he had called in prescriptions for the patient N. S. With the information he had at hand, and based on his memory of his treatment of the patient N. S., the Respondent reconstructed the two missing pages of progress notes. In the process of reconstructing the progress notes, the Respondent made some inadvertent mistakes regarding the dates on which certain office visits took place. Other than the mistakes as to some of the dates, the reconstructed records accurately and sufficiently describe the Respondent's treatment of the patient N. S. The Respondent's records of his treatment of the patient N. S. do not contain a notation that the progress notes are reconstructed notes.

    
    

15. When the Respondent delivered medical records to the Petitioner's investigator on September 25, 1991, he did not tell the investigator that two pages of the records had been reconstructed. Upon review of the medical records delivered by the Respondent, the investigator noted that some of the dates in the progress notes did not match dates with other documents in the investigator's possession and also noted that the progress notes looked like they had all been written at the same time. On September 27, 1991, the investigator contacted the Respondent by telephone and brought these apparent irregularities to the Respondent's attention. During the telephone conversation of September 27, 1991, the Respondent told the investigator that he had reconstructed the progress notes after being unable to find the missing notes. This was the first time the Respondent had mentioned to the Petitioner that the subject medical records contained two reconstructed pages.

    
    

16. On October 4, 1995, the Respondent sent copies of his records to the patient N. S., along with a letter addressed to the patient N. S. The letter read as follows:

    
    

    Sorry for the delay in mailing your records. I have diligently looked thru your file and in the office and at home for the medical

    records missing that are the two written pages that I have reconstructed to the best of my

    ability as to dates. The billing ledger was also in the chart and has not been found.

    
    

    In order to recreate the bills for tax purposes, I could help you if I had the dates and amounts from photocopies of the cancelled checks.

    
    

17. The Respondent did not destroy any medical records regarding the patient N. S. The Respondent did not falsify or attempt to falsify any medical records of the patient N. S.

    
    

18. The documents of which official recognition has been taken reveal that the Respondent has been the subject of prior disciplinary action by the Petitioner. The most significant instances of prior disciplinary action were DPR Case No. 0052390, in which the Respondent stipulated to the imposition of disciplinary action on the basis of violations related to the improper prescription of controlled substances, and DPR Case No. 89-008659, in which the Respondent stipulated to the imposition of disciplinary action on the basis of a violation related to exploitation of a patient for financial gain by borrowing money from a patient. At the time of the Respondent's treatment of the patient

    N. S., the Respondent was still serving the term of probation imposed in DPR Case No. 0052390.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

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

21. Section 459.015(1), Florida Statutes, 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:

       * * *

       1. Making or filing a report which the licensee knew to be false, or intentionally or negligently failing to file a report or record required by state or federal law.

          * * *

          (n) Making deceptive, untrue, or fraudulent representations in or related to the practice of osteopathic medicine or employing a trick

          or scheme in the practice of osteopathic 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. Fraudulently altering or destroying records relating to patient care or treatment, including, but not limited to, patient histories and/or examination results.

          3. Exercising influence on a 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.

          * * *

          (bb) Violating a provision of Chapter 459.

          
          

22. Section 459.15(2), Florida Statutes, authorizes the Board of Osteopathic Medicine to impose one or more of various specified penalties when a licensee is found guilty of any of the grounds set forth in Section 459.15(1), Florida Statutes.

    
    

23. Count One of the Administrative Complaint alleges that the Respondent violated Section 459.015(1)(r), Florida Statutes, in that "[t]he Respondent is guilty of exercising influence on a 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." The evidence in this case is sufficient to establish the violation charged in Count One. The Respondent clearly exercised influence on the patient

    N. S. and exploited the patient for his own financial gain. Accordingly, the Respondent should be found guilty of the violation alleged in Count One of the Administrative Complaint.

    
    

24. Count Two of the Administrative Complaint alleges that the Respondent violated Section 459.015(1)(i), Florida Statutes, in that "Respondent is guilty of making or filing a report which the licensee knew to be false, or intentionally or negligently failing to file a report or record required by state or federal law in that he falsified patient records." The evidence in this case in insufficient to establish the violation alleged in Count Two. The Respondent did not falsify patient records. The most that is shown in this regard by the persuasive evidence is that the Respondent made some unintentional

    mistakes regarding dates of office visits when he reconstructed some missing records. Accordingly, Count Two of the Administrative Complaint should be dismissed.

    
    

25. Count Three of the Administrative Complaint alleges that the Respondent violated Section 459.015(1)(n), Florida Statutes, in that "Respondent is guilty of making deceptive, untrue, or fraudulent representations in or related to the practice of osteopathic medicine in that he falsified patient records." The evidence in this case in insufficient to establish the violation alleged in Count Three. The Respondent did not falsify patient records. The most that is shown in this regard by the persuasive evidence is that the Respondent made some unintentional mistakes regarding dates of office visits when he reconstructed some missing records. Accordingly, Count Two of the Administrative Complaint should be dismissed.

    
    

26. Count Four of the Administrative Complaint alleges that the Respondent violated Section 459.015(1)(p), Florida Statutes, in that "Respondent is guilty of failure 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." Although it might be argued that the Respondent is technically guilty of a violation of the letter of the cited statutory provision by reason of his "failure to keep" the two pages of records he lost, the Respondent's conduct in this case does not violate the purpose and intent of the cited statutory provision. The greater weight of the evidence in this case is to the effect that the Respondent, contemporaneously with his treatment of the patient N. S., created and kept sufficient written medical records of his treatment, that he subsequently lost some of those records, and upon discovering the loss made a good faith, albeit imperfect, effort to reconstruct the missing records. This conduct is not a violation of Section 459.015(1)(p), Florida Statutes. Accordingly, Count Four of the Administrative Complaint should be dismissed.

    
    

27. Count Five of the Administrative Complaint alleges that the Respondent violated Section 459.015(1)(q), Florida Statutes, in that "Respondent is guilty of fraudulently altering or destroying records relating to patient care or treatment, including, but not limited to patient histories and/or examination results, in that he falsified patient records." The evidence in this case is insufficient to establish a violation of Section 459.015(1)(q), Florida Statutes, because there is no clear and convincing evidence that the Respondent fraudulently altered or destroyed any patient records. The greater weight of the evidence is to the effect that the Respondent made a good faith, albeit imperfect, effort to reconstruct two pages of missing progress notes. There is no persuasive evidence of any intent or effort to defraud. Accordingly, Count Five of the Administrative Complaint should be dismissed.

    
    

28. Count Six of the Administrative Complaint alleges that the Respondent violated Section 459.013(1)(a) and Section 459.015(1)(cc), Florida Statutes, in that "Respondent is guilty [of] practicing osteopathic medicine without an active license." The Petitioner did not offer any evidence in support of the allegations in Count Six. Accordingly, Count Six of the Administrative Complaint should be dismissed.

    
    

29. With regard to the determination of the appropriate penalty, Rule 59W- 6.011(2), Florida Administrative Code, provides that the recommended penalty range for a violation of Section 459.015(1)(r), Florida Statutes, is normally as follows: "From a reprimand and $50.00 fine to one (1) year probation, and an

administrative fine from $50.00 to $1,000.00." Deviation from the recommended penalty guidelines may be appropriate upon consideration of the aggravating and mitigating factors set forth in Rule 59W-8.001(3), Florida Administrative Code. Upon consideration of those aggravating and mitigating factors, it appears that a penalty more severe than the guideline penalty is appropriate.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case to the following effect:

1. Dismissing Counts Two, Three, Four, Five, and Six of the Administrative Complaint;

   
   

2. Finding the Respondent guilty of the violation charged in Count One of the Administrative Complaint; and

   
   

3. Imposing a penalty consisting of all of the following: (a) an administrative fine in the amount of one thousand dollars ($1,000.00), (b) suspension of the Respondent's license for a period of ninety (90) days, (c) placing the Respondent on probation for a period of one (1) year following the suspension, and (d) restricting the Respondent's practice by prohibiting him from entering into any financial arrangements with patients other than those arrangements reasonably necessary to assure payment for osteopathic medical services provided by the Respondent.

DONE AND ENTERED this 6th day of March 1996 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 SC 278-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of March 1996.

APPENDIX

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

Findings submitted by Petitioner:

Paragraphs 1 through 10: Accepted in substance, but with a few unnecessary details omitted and with a few details modified in the interest of clarity.

Paragraph 11: Rejected as subordinate and unnecessary details. Paragraph 12: Accepted in substance.

Paragraph 13: Rejected as irrelevant. Paragraph 14: Accepted in substance. Paragraph 15: Rejected as irrelevant.

Paragraphs 16 through 20: Accepted in substance, but with a few unnecessary details omitted and with a few details modified in the interest of clarity.

Paragraph 21: First sentence accepted in substance. Second sentence rejected as subordinate and unnecessary details.

Paragraph 22: Rejected as irrelevant.

Findings submitted by Respondent: Paragraphs 1 and 2: Accepted.

Paragraph 3: Accepted in part and rejected in part. Accepted that the Respondent and N. S. had a physician-patient relationship during the relevant time period. The notion that the Respondent and N. S. also had a business venture relationship is rejected as contrary to the greater weight of the evidence. N. S. made suggestions to the Respondent as to how he could improve his practice, but there was no joint business venture relationship.

Paragraph 4: First sentence accepted in substance. The second sentence is rejected as contrary to the greater weight of the evidence; there was no business relationship.

Paragraph 5: Accepted in substance.

Paragraphs 6 and 7: Rejected as subordinate and unnecessary details. Paragraphs 8 through 12: Accepted in substance.

Paragraph 13: Accepted in substance, with the exception of the second sentence and the last sentence. The second sentence is rejected as not supported by persuasive competent substantial evidence. The last sentence is rejected as subordinate and unnecessary details.

Paragraph 14: Accepted in substance.

COPIES FURNISHED:

Kenneth J. Metzger, Esquire

Agency For Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Michael J. Doddo, Esquire

100 Southeast 12th Street

Fort Lauderdale, Florida 33316

William H. Buckhalt, Executive Director Board of Osteopathic Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0792

Douglas M. Cook, Director

Agency For Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Jerome W. Hoffman, General Counsel Agency For Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

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

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

STATE OF FLORIDA

BOARD OF OSTEOPATHIC MEDICINE

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

CASE NO.: 91-09613

vs. 92-02200

DOAH CASE NO.: 93-5403

ARTHUR LODATO, .O., LICENSE NO.: OS 0001228

Respondent.

/

FINAL ORDER

THIS MATTER came before the Board of Osteopathic Medicine (hereinafter referred to as the "Board") pursuant to Section 120.57(1 )(b)(9), Florida Statutes, on September 20, 1996, in Tampa, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference). The Petitioner was represented by Francesca Plendl, Attorney at Law. The Respondent was present at the Board meeting, and was represented by Michael J. Doddo, Esquire.

Upon consideration of the Hearing Officer's Recommended Order, the exceptions filed by the parties, and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following:

FINDINGS OF FACT

1. Upon consideration of the Recommended Order and the exceptions filed by the parties, the Hearing Officer's Findings of Fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 18 are approved an adopted. The exceptions filed by Respondent with respect to the findings of fact in paragraphs 5 and 6 are rejected on the grounds that there is competent, substantial evidence supporting the Hearing Officer's findings.

2. With agreement of the parties, the findings of fact in paragraph 16 are adopted with the correction of the date that Respondent send copies of patient records to N.S. to October 4, 1991.

   
   

3. The findings of fact in paragraph 17 are rejected as not supported by competent substantial evidence. The exception filed by Petitioner is accepted, and the Board finds that:

   
   

   The respondent did not destroy any medical records regarding the patient N.S.; however, the Respondent did falsify or attempt to falsify the medical records of the patient N.S. by adding medical records after the fact and not so noting in the medical records.

   
   

4. There is competent, substantial evidence to support the Hearing Officer's Findings of Fact with the exceptions noted.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 459, Florida Statutes.

   
   

2. The Hearing Officer's Conclusions of Law in paragraphs 23, 25, and 27 are hereby approved and adopted. The exception filed by Respondent as to the conclusions of law in paragraph 23 is rejected on the grounds that the Hearing Officer correctly interpreted and applied Section 459.01 5(1 )(r) [now 459.015(1) (q)] to the facts.

   
   

3. The Hearing Officer's Conclusions of Law in paragraph 24 are rejected, and the exceptions filed by Petitioner are approved and adopted on the grounds that adding to a patient's medical records after the fact without a notation that the records are not contemporaneous does constitute falsification of records. See, Agency for Health Care Administration v. Sonkin, M.D., DOAH Case No. 95-2535 (Board of Medicine, February 2, 1996).

   
   

4. The Hearing Officer's Conclusions of Law in paragraph 26 are rejected, and the exceptions filed by Petitioner are approved and adopted on the grounds that being unaware of the existence or whereabouts of a patient's medical records constitutes failure to keep or maintain them. See, Department of Business and Professional Regulation v. Morrison, M.D., DOAH Case No. 93-6228 (Final Order issued August 26, 1994).

   
   

5. Respondent is guilty of violating Sections 459.015(1) (r) [now 459.015(1 )(q)], 459.015(1 )(i), 459.015(1 )(p) [now 459.015(1 )(o)], Florida Statutes.

   
   

6. There is competent, substantial evidence to support the Board's findings and conclusions.

   
   

7. In view of the additional statutory provisions which the Board has found Respondent violated, the penalty recommended by the Hearing Officer is hereby rejected.

THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

1. The license of Arthur Lodato, D.O. is suspended; however, that suspension will be stayed 60 days after the date this Order is filed, so long as he complies with the conditions of probation. His license is placed on probation for FIVE,(5) years with the following conditions:

   
   

   1. Respondent shall submit quarterly reports in affidavit form, the contents of which shall be specified by the Board. The reports shall include:

      
      

      1. Brief statement of why the osteopathic physician is on probation.

      2. Practice location.

      3. Describe current practice (type and composition).

      4. Brief statement of compliance with probationary terms.

      5. Describe relationship with monitoring/supervising physician.

      6. Advise Board of any problems.

      
      

      The first such report will be due at the first regularly scheduled meeting of the Board after the suspension of Respondent's license is lifted, and quarterly thereafter.

      
      

   2. Respondent shall appear before the Board at least semiannually, and at such other times as requested by the Board. Respondent shall be notified by Board staff of the time, date, and place at which Respondent's appearance is required. Failure to appear as directed shall be considered a violation of the terms of this Order, and shall subject Respondent to disciplinary action.

      
      

   3. Respondent shall enroll in and successfully complete a course in medical record keeping. This shall be in addition to other normally required continuing education courses. Verification of course content and course completion must be submitted to the Board office within six months from the date of this Order. If such a course is not reasonably available to Respondent, upon timely application to the Board, the Board may grant an extension of time for compliance with the requirement of six months.

      
      

   4. Respondent shall made his medical records available for review upon request of the Board.

      
      

   5. Respondent shall pay an administrative fine in the) amount of $5,000.00 in equal monthly payments during the term of probation. The monthly payments shall be a minimum of $84.00. The balance ,of the fine may be paid early at any time.

      
      

2. The license of Arthur Lodato is hereby REPRIMANDED.

   
   

3. The license of Arthur Lodato is hereby restricted as follows: Respondent shall not engage in any financial arrangements with patients other than those necessary to ensure payment for medical services provided to said patients.

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this Final Order by filing one copy of a Notice of Appeal with the Clerk of the Agency for Health Care Administration, North wood Centre, 1940 N. Monroe Street, Tallahassee, Florida 32399-0792, and by filing

the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the effective date of this Order.

This Order takes effect upon filing with the Clerk of the Agency for Health Care Administration.

DONE and ORDERED this 1st day of October, 1996.

BOARD OF OSTEOPATHIC MEDICINE

JOHN C. HACKENBERG, D.O. CHAIR

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by United State Mail to Arthur Lodato, D.O., 577 N.E. 107th Street, Miami Florida 33161 and Michael J. Doddo, Esquire, 100 S.E. 12th Street, Ft. Lauderdale Florida 33316; and by interoffice mail to FRANCESCA PLENDL, Agency for Health Care Administration, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, this 9th day of October, 1996.

Docket for Case No: 93-005403

Orders for Case No: 93-005403