STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )
BOARD OF MEDICINE, )
)
Petitioner, )
)
vs. ) CASE NOS. 93-5739
) 93-5861
CHARLES H. KENT, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in these consolidated cases on March 17, 1994, in Fort Pierce, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Francesca Plendl, Esquire
Department of Business and Professional Regulation
1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-0792 For Respondent: No appearance
STATEMENT OF THE ISSUES
Whether Respondent committed the violations alleged in the Administrative Complaints?
If so, what disciplinary action should be taken against him?
PRELIMINARY STATEMENT
On August 19, 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 against Respondent, a Florida-licensed medical doctor, [hereinafter referred to as Administrative Complaint #1] alleging that Respondent violated Section 458.331(1)(t), Florida Statutes, in connection with his care and treatment of patient V.H. by "provid[ing] additional radiation treatment for [the patient in 1985] without appropriate justification, including positive pathology or recommendations by other outside consultants." On February 11, 1993, the Department issued another Administrative Complaint against Respondent [hereinafter referred to as "Administrative Complaint #2] alleging another violation of Section
458.331(1)(t), Florida Statutes. The subject of this subsequently issued Administrative Complaint was radiation treatment Respondent administered to patient G.K. in 1984.
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 October 8, 1993, and October 12, 1993, respectively, 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. At the request of the Department, the two matters were consolidated and a single hearing was held.
At this hearing, which was held on March 17, 1994, the Department presented the testimony of three witnesses: Dennis Patrick O'Neil, the records custodian at Lawnwood Regional Medical Center; Juan Carlos Giachino, M.D., a plastic and reconstructive surgeon, who treated patient V.H. in 1986; and patient V.H. In addition to the testimony of these three witnesses, the Department offered, and the Hearing Officer received, 11 exhibits (Petitioner's Exhibits 1-11) into evidence. Among these exhibits were the transcripts of depositions of Barry Tepperman, M.D., Jack Schneider, M.D., Everett Sugarbaker, M.D., James Grossnickle, M.D., and Laurie Garvey. Although provided notice in accordance with Section 120.57(1)(b)2, Florida Statutes, Respondent did not appear at the hearing, either in person or through a representative, and therefore presented no 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 40 days from the date of the Hearing Officer's receipt of the transcript of the hearing.
The Hearing Officer received the hearing transcript on April 7, 1994. On May 11, 1994, the Department filed a proposed recommended order. The Department'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
The Department is a state government licensing and regulatory agency.
Respondent is now, and has been at all times material to the instant cases, a physician licensed to practice medicine in the State of Florida.
He holds license number ME 0037235.
Facts Relating to Case No. 93-5861
On December 29, 1983, at Indian River Memorial Hospital, Dr. Phil Morgan performed a partial mastectomy and an axillary lymph node dissection on G.K., a female patient who was then 57 years of age.
The mastectomy was performed on G.K.'s left breast.
Approximately a quarter of the breast volume was removed, including a malignant tumor that was no more than two centimeters in diameter.
The procedures performed by Dr. Morgan revealed no evidence of any further malignancy.
In early 1984, G.K. went to the Lawnwood Oncology Center in Fort Pierce, Florida to consult with Respondent, a radiation oncologist, regarding her receiving postoperative radiation therapy.
From January 17, 1984, to February 27, 1984, Respondent administered doses of external beam radiation therapy to what remained of G.K.'s left breast and the lymphatic drainage regions. The total nominal dosage administered was 5040 cGy or rads.
On or about March 13, 1984, Respondent supplemented the external beam therapy treatment G.K. had received with an Iridium-192 radioisotope interstitial implant in G.K.'s left breast.
The implant consisted of two layers of radioactive needles, with one layer one centimeter deeper than the other. There were ten needles, spaced one centimeter apart, in each of the two layers.
In 1984, the prevailing standard of care recognized as acceptable and appropriate by reasonably prudent radiation oncologists performing multi-layer interstitial implants required that the oncologist design and structure the implant in such a manner that the radioactive sources in each of the layers were spaced at least 1.2 centimeters apart and that the oncologist use less than half the number of radioactive sources that Respondent used.
The implant remained in position for 52 hours.
A volume of 253 cubic centimeters of breast tissue received a dosage of 60 cGy or rads per hour.
In 1984, the prevailing standard of care recognized as acceptable and appropriate by reasonably prudent radiation oncologists performing interstitial implants required that the oncologist regulate the radiation dosage rate so that it did not exceed 50 cGy or rads per hour.
An additional 72 cubic centimeters of breast tissue received a dosage of 100 cGy or rads per hour, twice the maximum dosage rate.
Inasmuch as these 72 cubic centimeters of breast tissue received a total dosage of 5200 cGy or rads during the time the implant remained in position, compared to the total dosage of 3120 cGy or rads that the other 253 cubic centimeters of targeted breast tissue received, the inhomogeneity of dosage distribution well exceeded 20 percent, contrary to the then prevailing standard of care recognized as acceptable and appropriate by reasonably prudent
radiation oncologists performing interstitial implants, which required that the physical design of the implant be such that there was no more than 20 percent of dosage distribution inhomogeneity.
Furthermore, in designing the implant, Respondent targeted a greater volume of breast tissue than was acceptable and appropriate under the prevailing standard of care.
The implant and the external beam therapy combined delivered a total nominal dosage of 8160 cGy or rads, with some areas within the central region of the implanted tissue receiving in excess of 10,000 cGy or rads.
Given the relatively small size of the malignant tumor that had been removed from G.K.'s breast and the absence of any apparent residual malignancy, a reasonably prudent radiation oncologist, governed by standards in effect in 1984, would have administered, in toto, a nominal dosage of no more than 6000 to 7000 cGy or rads.
In or about December of 1985, G.K. presented to Respondent with breast fibrosis and skin retraction on the side that Respondent had treated in 1984.
Respondent recommended conservative measures only.
G.K. went to Dr. Everrett Sugarbaker, a surgical oncologist, for a second opinion.
Dr. Sugarbaker initially examined G.K. and evaluated her situation in August of 1986. He noted that G.K.'s left breast was totally contracted back against the chest wall with extensive telangiectatic and fibrotic change in the area where Respondent had inserted the Iridium-192 implant. There was also a scab over a one and a half centimeter ulcer. It was apparent to Dr. Sugarbaker that G.K. was suffering from radionecrosis as a result of the radiation therapy she had received from Respondent.
Dr. Sugarbaker recommended daily peroxide application to the ulcer, but added that, if the ulcer increased in size or became infected, he would consider surgical correction of the problem.
G.K. visited Respondent again in October of 1986. The area of her left breast where the implant had been inserted had experienced further tissue destruction and had become infected.
Respondent prescribed antibiotic therapy, which ultimately proved to be unsuccessful.
In or about February of 1987, Respondent recommended that G.K. try hyperbaric oxygen therapy, but G.K. refused to follow Respondent's recommendation.
On February 13, 1987, G.K. returned to Dr. Sugarbaker for reassessment.
G.K. told Dr. Sugarbaker of her recurring infection.
Upon his examination of G.K., he noticed that the necrotic area of her left breast was larger than when he had seen her in August of the previous year.
Dr. Sugarbaker recommended surgical correction.
On February 18, 1987, Dr. Sugarbaker surgically removed the remainder of G.K.'s left breast and, in connection therewith, performed other procedures to reconstruct the chest wall and improve blood supply and promote healing in the area.
The necrosis from which G.K. was suffering that made these procedures necessary was caused by Respondent having overradiated her during the course of the radiation therapy he administered to her in 1984.
Facts Relating to Case No. 93-5861
In September of 1982, Dr. Khalil Cassimally performed a modified radical mastectomy on V.H.'s cancerous left breast.
V.H. was approximately 34 years of age at the time.
Postoperatively, from approximately October 10, 1982, to November 22, 1982, V.H. received radiation therapy from Dr. Victoria Cividino at the Lawnwood Oncology Center, of which Respondent was the director.
The therapy included a total nominal dosage of 5000 cGy or rads (with a 1000 cGy or rads "boost") to the left axilla.
Following the therapy, V.H. was in constant pain.
At some point in time, a knot or nodule developed in the area where she had had her mastectomy.
V.H. told Respondent, who had assumed responsibility for V.H.'s care and treatment from Dr. Cividino, about the nodule.
The nodule was biopsied on September 15, 1983, by Dr. Cassimally. No malignancy was found.
The area that was biopsied did not heal properly.
V.H. continued to have problems.
On March 16, 1984, Respondent visited Dr. James Grossnickle, a general surgeon. She presented with a large ulcer on her left chest wall surrounded by thick elevated tissue.
On April 20, 1984, Dr. Grossnickle biopsied a portion of the ulcer and surrounding tissue.
The pathological diagnosis was fat necrosis and fibrosis. There was no evidence of any malignancy.
V.H. eventually returned to see Respondent.
From approximately April 16, 1985, to June 11, 1985, Respondent treated V.H. with further radiation therapy.
The therapy included a total nominal dosage of 5000 cGy or rads to the left axilla, which was administered in 20 fractions.
The dosage, when considered in light of the dosage previously administered by Dr. Cividino in 1982, exceeded the limits of normal tissue tolerance. As a result, it caused considerable tissue damage.
There was no medical justification for administering additional radiation therapy to V.H., particularly in light of the results of the post- mastectomy biopsies that had been performed by Drs. Cassimally and Grossnickle.
A reasonably prudent radiation oncologist, governed by standards in effect in 1985, would not have followed such a course of treatment.
After receiving this additional radiation therapy, Respondent developed a large mass of scar tissue in the treated area, in the center of which was an oozing ulcer. Her condition was the result of having been overradiated.
In or about October of 1986, V.H. went to Juan Carlos Giachino, a plastic and reconstructive surgeon, who performed surgery on V.H. in an effort to remedy the situation.
The surgery was unsuccessful. Oozing ulcers reappeared. One such ulcer, near her left underarm, had to be irrigated and cleaned three to four times a day.
Furthermore, V.H.'s left arm became unusable as it accumulated undrained lymphatic fluid and resultingly increased in size.
The excessive radiation treatment that V.H. had received had resulted in the obstruction of the lymphatic drainage pathways in the arm.
The problem with her left arm became so severe that amputation of the arm was required.
Other corrective surgical procedures, including chest reconstruction, were performed on V.H. to improve her condition.
CONCLUSIONS OF LAW
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.
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).
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).
Regardless of the disciplinary action taken, it may be based only upon the violations specifically alleged in 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).
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).
The Administrative Complaints issued in the instant consolidated cases charge Respondent with committing two separate violations of subsection (1)(t) of Section 458.331, Florida Statutes, in connection with his treatment, with radiation therapy, of two separate patients, G.K. (Case No 93-5861) and V.H. (Case No. 93-5739).
At all times material to the instant case, 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."
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.
The evidence clearly and convincingly demonstrates that, with respect to the radiation therapy he administered to both G.K. and V.H., Respondent "fail[ed] to practice medicine with that level of care, skill, and treatment . .
. recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances," as alleged in the Administrative Complaints, and therefore violated subsection (1)(t) of Section 458.331, Florida Statutes.
Accordingly, Respondent should be found guilty of these two separate violations of Section 458.331(1), Florida Statutes, and disciplined therefor.
In 1984 and 1985, when Respondent committed these violations, the Board was authorized to impose one or more of the following penalties for a violation of subsection (1)(t) of Section 458.331, Florida Statutes: license revocation; license suspension; restriction of practice; imposition of an administrative fine not to exceed $1,000 for each count or separate offense; issuance of a reprimand; and placement of the physician on probation. Section 458.331(2), Fla. Stat. (1983). Although the Legislature has since increased to
$5,000.00 the amount of the maximum fine that the Board may impose per violation and added additional potential penalties, Respondent is subject to only those penalties that were statutorily authorized at the time of the violations he committed. See Willner v. Department of Professional Regulation, Board of
Medicine, 563 So.2d 805, 806 (Fla. 1st DCA 1990)("[s]ince all the violations for which appellant [a licensed physician] was found guilty occurred prior to the effective date of the 1986 amendment [to Section 458.331(2), Florida Statutes, increasing the maximum fine to $5,000.00 per violation], the maximum fine which could lawfully be imposed [upon appellant] was $1,000.00 per violation").
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).
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.
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.
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.
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:
Exposure of patient or public to injury or potential injury, physical or otherwise:
none, slight, severe or death;
Legal status at the time of the offense: no restraints or legal constraints;
The number of counts or separate offenses established;
The number of times the same offense or offenses have previously been committed by
the licensee . . .;
The disciplinary history of the . . . licensee in any jurisdiction and the length of practice;
Pecuniary benefit or self-gain inuring to the . . . licensee;
Any other relevant mitigating factors.
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."
In its proposed recommended order, the Department suggests that the Board impose the following penalties upon Respondent for his having committed the violations alleged in the Administrative Complaints:
The Respondent shall be Reprimanded, he shall pay a Fine in the amount of $10,000, he shall be placed on Five years probation with indirect supervision, and he shall be Restricted from practicing radiology until such time as he appears before the Board and demonstrates his ability to do so with skill and safety. The Board may place conditions and/or restrictions on the Respondent returning to the practice of radiology should the restriction be lifted.
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 Board should follow the Department's suggestion in all respects, except that it should impose an administrative fine, not of
$10,000.00, but of $2,000.00 ($1,000.00 per violation), which is the maximum allowable given that the violations in question were committed in 1984 and 1985, before the effective date of the statutory amendment that increased the maximum fine from $1,000.00 per violation to $5,000.00 per violation.
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)(t) of Section 458.331, Florida Statutes, alleged in the Administrative Complaints and disciplining him for having committed these violations by imposing the penalties described in Conclusion of Law 78 of this Recommended Order.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of May, 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 20th day of May, 1994.
APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 93-5739 and 93-5861
The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the Department in its proposed recommended order:
1-9. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.
To the extent that this proposed finding addresses the standard of care for single layer implants, it has not been incorporated in this Recommended Order because, even if true, it would have no bearing on the outcome of the instant case. To the extent that it addresses the standard of care for multi- layer implants, it has been accepted and incorporated in substance.
Accepted and incorporated in substance.
12-13. Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
14-36. Accepted and incorporated in substance.
First and second sentences: Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer; Third sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the weight to be given certain evidence adduced at hearing.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the weight to be given certain evidence adduced at hearing.
To the extent that this proposed finding states that V.H. was 25 years of age at the time of the mastectomy, it has been rejected because it is contrary to the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance.
40-56. Accepted and incorporated in substance.
First and second sentences: Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer; Third sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the weight to be given certain evidence adduced at hearing.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the weight to be given certain evidence adduced at hearing.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the weight to be given certain evidence adduced at hearing.
Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony
First sentence: Accepted and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because it has no bearing on the outcome of the instant case.
First sentence: Accepted and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because it has no bearing on the outcome of the instant case.
COPIES FURNISHED:
Francesca Plendl, Esquire Department of Business and
Professional Regulation 1940 North Monroe Street Suite 60
Tallahassee, Florida 32399-0792
Charles H. Kent, M.D. 3605 Juan Ortiz Circle
Ft. Pierce, Florida 34947-6110
Dr. Marm Harris, Executive Director Board of Medicine
Department of Business and Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32399-0792
Jack McRay, Esquire General Counsel
Department of Business and Professional Regulation
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.
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )
BOARD OF MEDICINE, )
)
Petitioner, )
)
vs. ) CASE NOS. 93-5739
)
CHARLES H. KENT, M.D., )
)
Respondent. )
) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )
BOARD OF MEDICINE, )
)
Petitioner, )
)
vs. ) CASE NOS. 93-5861
)
CHARLES H. KENT, M.D., )
)
Respondent. )
)
ORDER
Pursuant to Rule 60Q-2.032, Florida Administrative Code, Findings of Fact
45 and 54 of the Recommended Order issued in the instant case on May 20, 1994, are hereby CORRECTED to read as follows:
45. On March 16, 1994, V. H. visited Dr. James Grossnickle, a general surgeon. She presented with a large ulcer on her left
chest wall surrounded by thick elevated tissue.
54. After receiving additional radiation therapy,
V. H. developed a large mass of scar tissue in the treated area, in the center of which was an oozing ulcer. Her condition was the result of having been overradited.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23th day of May, 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 23th day of May, 1994.
COPIES FURNISHED:
Francesca Plendl, Esquire Department of Business and
Professional Regulation 1940 North Monroe Street Suite 60
Tallahassee, Florida 32399-0792
Charles H. Kent, M.D. 3605 Juan Ortiz Circle
Ft. Pierce, Florida 34947-6110
Dr. Marm Harris, Executive Director Board of Medicine
Department of Business and Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32399-0792
Jack McRay, Esquire General Counsel
Department of Business and Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32399-0792
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
AGENCY FOR HEALTH CARE ADMINISTRATION 1/ BOARD OF MEDICINE
AGENCY FOR HEALTH CARE ADMINISTRATION, BOARD OF MEDICINE
CASE NOS: 90-04197
Petitioner, 90-14356
DOAH CASE NOS: 93-5739
v. 93-5861
CHARLES H. KENT, M.D.,
Respondent.
/
FINAL ORDER
THIS MATTER was heard by the Board of Medicine (hereinafter Board) pursuant to Section 120.57(1)(b)10., Florida Statutes, on August 6, 1994, in Orlando, Florida, for consideration of the Hearing Officer's Recommended Order (Attached as App. A) in the case of Agency for Health Care Administration, Board of Medicine v. Charles H. Kent, M.D. At the hearing before the Board, Petitioner was represented by Larry G. McPherson, Jr., Chief Medical Attorney. Respondent appeared and was not represented by counsel. Upon consideration of the Hearing Officer's Recommended Order, review of the complete record and having been otherwise fully advised in its premises, the Board makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
The Hearing Officer's Recommended Findings of Fact are approved and adopted and are incorporated herein by reference as the Findings of Fact of the Board in this cause.
There is competent, substantial evidence to support the Board's findings herein.
CONCLUSIONS OF LAW
The Board has jurisdiction over the parties and subject matter of this case pursuant to Section 120.57 and Chapter 458, Florida Statutes.
The findings of fact set forth above do establish that Respondent has violated Section 458.331(1), Florida Statutes, as charged in the administrative complaints.
DISPOSITION
WHEREFORE, it is found, ordered and adjudged that the Respondent has violated Section 458.331(1) and pursuant to Rule 61F6-20, and in consideration of the foregoing Findings of Fact and Conclusions of Law the Board hereby determines that, based upon mitigating factors in this case, a suspension of license is not merited and the penalty recommended by the Hearing Officer is rejected and the following lesser penalty is imposed:
Respondent shall pay a fine of $2,000.00 (two thousand dollars) to the Board within six months of the filing of the final order in this case.
Effective upon the filing of the final order in this case, Respondent's license to practice medicine shall be placed on PROBATION for a period of two years, subject to the following terms and conditions:
Respondent shall comply with all state and federal statutes, rules, and regulations pertaining to the practice of medicine, including Chapters 455, 458, 893, Florida Statutes, and Rule 61F, Florida Administrative Code.
Respondent shall appear before the Board's Probationer's Committee at the first meeting after said probation commences, at the last meeting of the Board's Probationer's Committee preceding termination of probation, semiannually, and at such other times as requested by the Board's Probationer's Committee. Respondent shall be noticed by Board staff of the date, time and place of the meeting whereat Respondent's appearance is required. Failure of the Respondent to appear as requested or directed shall be considered a violation of the terms of the Final Order entered in this matter, and shall subject the Respondent to disciplinary action.
In the event the Respondent leaves the State of Florida for a period of thirty days or more or otherwise does not engage in the active practice of medicine in the State of Florida, then certain provisions of Respondent's probation (and only those provisions of said probation) shall be tolled as enumerate below and shall remain in a tolled status until Respondent returns to active practice in the State of Florida. Respondent must keep current residence and business addresses on file with the Board. Respondent shall notify the Board within ten (10) days of any changes of said addresses. Furthermore, Respondent shall notify the Board within ten (10) days in the event that Respondent leaves the active practice of medicine in Florida.
In the event that Respondent leaves the active practice of medicine in this state for a period of thirty days or more, the following provisions of his probation shall be tolled:
The time period of probation shall be tolled.
The provisions regarding indirect monitoring, included below.
In the event that Respondent leaves the active practice of medicine for a period of one year or more, the Board's. Probationer's Committee may require Respondent to appear before the Probationer's Committee and demonstrate his ability to practice medicine with skill and safety to patients prior to resuming the practice of medicine in this State.
Respondent shall not practice except under the indirect supervision of a physician fully licensed under Chapter 458 who has been approved by the Board or its Probationer's Committee. Absent provision for and compliance with the terms regarding temporary approval of a monitoring physician set forth in paragraph 8 below, Respondent shall cease practice and not practice until the Board's Probationer's committee approves a monitoring physician. Respondent shall have the monitoring physician with him at his first probation appearance before the Board's Probationer's Committee. A failure of the Respondent or his monitoring physician to appear at the scheduled probation meeting shall constitute a violation of the Board's Final Order. Failure of the Respondent or the monitoring physician to appear at the scheduled Probation Committee shall constitute a violation of this Order. Prior to approval of the monitoring physician by the Board's Probationer's Committee, the Respondent shall provide to the monitoring physician a copy of the Administrative Complaint and Final Order filed in this case. Prior to the approval of the monitoring physician by the Board's Probationer's Committee, Respondent shall submit to the Board's Probationer's Committee a current curriculum vitae and description of the current practice from the proposed monitoring physician. Said materials shall be received in the Board office no later than fourteen days before the Respondent's first scheduled probation appearance. The attached definition of a monitoring physician is incorporated herein. The responsibilities of a monitoring physician shall include:
Submit semiannual reports, in affidavit form, which shall include:
Brief statement of why physician is on probation.
Description of probationer's practice.
Brief statement of probationer's compliance with terms of probation.
Brief description of probationer's relationship with monitoring physician.
Detail any problems which may have arisen with probationer. Respondent shall be responsible for ensuring that the monitoring physician submits the required reports.
Be available for consultation with Respondent whenever necessary, at a frequency of at least once per month.
Review 25 percent: (twenty five percent) of Respondent's patient records selected on a random basis at least once every month. In order to comply with this responsibility of random review, the monitoring physician shall go to Respondent's office once every month. At that time, the monitoring physician shall be responsible for making the random selection of the records to be reviewed by the monitoring physician.
Consult with Respondent on all cases involving radiation treatment for breast cancer.
Report to the Board any violations by the probationer of Chapter 455 and 458, Florida Statutes, and the rules promulgated pursuant thereto.
The Board shall confer authority on the Chairman of the Board's Probationer's Committee to temporarily approve Respondent's monitoring physician. In order to obtain this temporary approval, Respondent shall submit to the Chairman of the Board's Probationer's Committee the name and curriculum vitae of the proposal monitoring physician. This information shall be furnished to the Chairman of the Board's Probationer's Committee way of the Board of Medicine's executive director, within 48 hours after Respondent receives the Final Order in this matter. This information may be faxed to the Board of Medicine at (904) 487-9622 or may be sent by overnight mail or hand delivery to the Board of Medicine at the Department of Professional Regulation, 1940 North Monroe street, Suite 60, Tallahassee, Florida 32399-0750. In order to provide time for Respondent's proposed monitoring physician to be approved or disapproved by the Chairman of the Board's Probationer's Committee, Respondent shall be allowed to practice medicine while approval is being sought, but only for a period of five working days after Respondent receives the Final Order. If Respondent's monitoring physician has not been approved during that time frame, then Respondent shall cease practicing until such time as the monitoring physician is temporarily approved. In the event that the proposed monitoring physician is not approved, then Respondent shall cease practicing immediately Should Respondent's monitoring physician be approved, said approval shall only remain in effect until the next meeting of the Board's Probationer's Committee. Absent said approval, Respondent shall not practice medicine until a monitoring physician is approved.
In view of the need for ongoing and continuous monitoring or supervision, Respondent shall also submit the curriculum vitae and name of an alternate supervising/monitoring physician to be approved by the Board or its Probationer' Committee. Such physician shall be licensed pursuant to Chapters 458, Florida Statutes, and shall have the same duties and responsibilities as specified for Respondent's monitoring physician during those periods of time which Respondent's monitoring physician is temporarily unable to provide supervision. Prior to practicing under the indirect supervision of the alternate monitoring physician, Respondent shall so advise the Board's Probationer's Committee in writing. Respondent shall further advise the Board's Probationer's Committee in writing of the period of time during which Respondent shall practice under the supervision of the alternate monitoring physician. Respondent shall not practice unless he is under the supervision of the approved monitoring physician or the approved alternate.
Respondent shall submit semiannual reports in affidavit form, the contents of which shall be specified by the Board. The reports shall include:
Brief statement of why physician is on probation.
Practice location.
Describe current practice (type and composition).
Brief statement of compliance with probationary terms.
Describe relationship with monitoring/supervising physician.
Advise Board of any problems.
PROVISIONS G0VERNING PHYSICIANS PRACTICING UNDER SUPERVISION OF ANOTHER PHYSICIAN
DEFINITIONS:
INDIRECT SUPERVISION is supervision by a monitoring physician whose responsibilities are set by the Board. Indirect supervision does not require that the monitor practice on the same premises as the Respondent. However, the monitor shall practice within a reasonable geographic proximity to Respondent, which shall be within 20 miles unless otherwise provided by the Board's Probationer's Committee, and shall be readily available for consultation. The monitor shall be board certified in the same specialty area in which Respondent practices, unless otherwise ordered by the Board's Probationer's Committee.
DIRECT SUPERVISION is supervision by a supervising physician. Direct supervision requires that the supervisor and Respondent work on the same premises. Specific responsibilities are set by the Board. The supervisor shall be board certified in the same specialty area in which Respondent practices, unless otherwise ordered by the Probationer's Committee.
Provisions governing all supervised or monitored physicians:
A. The supervisor/monitor shall be furnished with copies of the Administrative Complaint, Final Order, Stipulation (if applicable), and other relevant orders.
The Respondent shall not practice without a monitor or supervising physician unless otherwise ordered by the Board. The Respondent shall appear at the next meeting of the Board's Probationer's Committee following entry of a Final Order with his proposed supervisor or monitor unless otherwise ordered by the Board. In the event that Respondent has not obtained temporary approval of his monitor or supervisor by the Chairman of the Board's Probationer's committee prior to that first meeting of the Board's Probationer's Committee, then Respondent may not practice medicine until he has obtained such approval.
Temporary approval is only available if provided for in the Final Order.
After the next meeting of the Board's Probationer's Committee occurs Respondent shall only practice under the supervision of the supervisor or monitor. If for any reason the approved supervisor or monitor is unwilling or unable to serve, Respondent shall immediately notify the Executive Director of the Board and shall cease practice until a temporary supervisor/monitor is approved. The chairman of the Board's Probationer's Committee may approve a temporary supervisor or monitor who may serve in that capacity until the next meeting of the Board's Probationer's Committee at which time the Board's Probationer's Committee shall accept or reject a new proposed supervisor or monitor. If the new proposed supervisor/monitor is rejected, Respondent shall cease practice until a new supervisor or monitor is temporarily approved by the Chairman of the Board's Probationer's Committee. Furthermore', the monitoring or supervising physician shall appear at the next meeting of the Board's Probationer's Committee, and at such other times as are requested by the Board's Probationer's Committee. Failure to appear by the monitor or supervisor as directed shall constitute violation of the Board's Final Order.
The supervisor or monitor must be a licensee under Chapter 458, Florida Statutes, in good standing without restriction or limitation on his license. In addition, the Board's Probationer's Committee may reject any proposed supervisor or monitor on the basis that he has previously been subject to any disciplinary
action against his medical license in this or any other jurisdiction. The supervisor or monitor must be actively engaged in the same or similar specialty area unless otherwise provided by the Board's Probationer's Committee. The Board's Probationer's Committee may also reject the proposed supervisor/monitor for good cause shown.
This Final Order becomes effective upon its filing with the Clerk of the Agency for Health Care Administration.
NOTICE
The parties are hereby notified pursuant to Section 120.59(4), Florida Statutes, that an appeal of this Final Order may be taken, pursuant to Section 120.68, Florida Statutes, by filing one copy of a Notice of Appeal with the Clerk of the Agency for Health Care Administration and one copy of a Notice of Appeal with the required filing fee with the District Court of Appeal within thirty (30) days of the date this Final Order is filed.
DONE and ORDERED this 30th DAY OF August, 1994.
BOARD OF MEDICINE
EDWARD A. DAUER, M.D. CHAIRMAN
ENDNOTE
1/ Effective July 01, 1994, the Board of Medicine was transferred from the Department of Business and Professional Regulation to the Agency for Health Care Administration pursuant to Section 20.42, Florida Statutes.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order and its attachments have been forwarded by U.S. Mail to Charles A. Kent, M.D., 3605 Juan Ortiz Circle, Ft. Pierce, Florida 34947, Stuart M. Lerner, Hearing Officer, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, and by hand delivery to Larry G. McPherson, Jr., Chief Medical Attorney, Agency for Health Care Administration, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 on this 6th day of September, 1994.
Marm Harris, Ed.D. Executive Director
| Issue Date | Proceedings |
|---|---|
| Sep. 08, 1994 | Final Order filed. |
| May 20, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held 03/17/94. |
| May 11, 1994 | Petitioner`s Proposed Recommended Order filed. |
| May 09, 1994 | (Petitioner) Exhibits 9&10 filed. |
| Apr. 07, 1994 | Notice of Filing; Transcript filed. |
| Mar. 21, 1994 | Petitioner`s Exhibits 1-10 filed. |
| Mar. 02, 1994 | (Petitioner) Proposed Prehearing Stipulation w/cover ltr filed. |
| Mar. 01, 1994 | Order sent out. (Petitioner`s Motion to Take Official Recognition Granted) |
| Feb. 28, 1994 | (2) Notice of Taking Deposition to Perpetuate Testimony (one w/attached subpoena) filed. |
| Feb. 23, 1994 | (Petitioner) Notice of Taking Deposition to Perpetuate Testimony filed. |
| Feb. 16, 1994 | (Petitioner) Notice of Taking Deposition to Perpetuate Testimony filed. |
| Feb. 16, 1994 | (Petitioner) Motion to Take Official Recognition filed. |
| Dec. 10, 1993 | Notice of Serving Petitioner`s First Set of Request for Admissions, Request for Production of Documents and Interrogatories to Respondent filed. |
| Nov. 18, 1993 | Order Requiring Prehearing Stipulation sent out. |
| Nov. 18, 1993 | Notice of Hearing sent out. (Consolidated cases are: 93-5739 & 93-5861; Hearing set for 3/17/94; 8:45am; Ft. Pierce) |
| Oct. 28, 1993 | (Petitioner) Notice of Substitution of Counsel filed. |
| Oct. 28, 1993 | Motion to Consolidate (with DOAH Case No. 93-5861) filed. |
| Oct. 28, 1993 | (Petitioner) Response to Initial Order filed. |
| Oct. 13, 1993 | Initial Order issued. |
| Oct. 08, 1993 | Agency referral letter; Administrative Complaint; Election of Rights;Patient Index(Confidential) filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 06, 1994 | Agency Final Order | |
| May 20, 1994 | Recommended Order | Radiation oncologist guilty of failing to meet standard of care in adminis- tering post-mastectomy radiation therapy to two of his patients. |
