STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS AND PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )
)
Petitioner, )
)
vs. ) CASE NO. 93-6228
)
MICHAEL MORRISON, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on February 7-9, 1994, in Fort Lauderdale, Florida.
APPEARANCES
For Petitioner: Joseph Harrison, Esquire
Slepin, Harrison & Feuer
2500 North Military Trail, Suite 275 Boca Raton, Florida 33431
For Respondent: Michael Cohen, Esquire
517 Southwest First Avenue
Fort Lauderdale, Florida 33301 STATEMENT OF THE ISSUE
The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
PRELIMINARY STATEMENT
On June 23, 1993, Petitioner issued an Administrative Complaint seeking to discipline Respondent for violating certain statutes regulating the practice of medicine. Respondent admitted many of the allegations in that Administrative Complaint and timely requested a formal hearing as to those allegations not admitted. This cause was thereafter transferred to the Division of Administrative Hearings to conduct that formal proceeding.
Petitioner presented the testimony of Leslie Magalios; Dennis Magalios; Timothy J. Hmielewski, Esquire; and Larry McPherson, Esquire.
Respondent Michael Morrison, M.D., testified on his own behalf and presented the testimony of Lisa Cohen; Nancy Roberts; Lynn Sproat; Rae Dowling; Blanche Walsky; Ronald Benton Brown, Esquire; Jay S. Weiss, Esquire; Charles M. Hartz, Esquire; Pearl Milestone; Eva-Lynn Morrison; Wendy Katz, Esquire;
Patricia Dorfman; Wren Newman; Caren B. Singer, M.D.; David Keller, Esquire; Harold Reitman, M.D.; Michael Chizner, M.D.; Vicki L. Cutcliff; Karen Switalski; Pamela Knight; Robert Kersh, M.D., and Joni Leterman, M.D.
Additionally, Joint Exhibits numbered 1-4 and 6-9, Petitioner's Exhibit numbered 1, and Respondent's Exhibit numbered 1 were admitted in evidence.
Post-hearing, the parties have stipulated that the following portions of the transcript are to be stricken:
Starting on page 355, line 5, through page 359, line 16.
Starting on page 362, line 23 through all of page 366.
Starting on page 409, line 23 through page 423, line 9.
Starting on page 423, line 18 through page 428, line 11.
Starting on page 428, line 24 through page 432, line 8.
The agreement of the parties is hereby approved, and those portions of the transcript are stricken.
Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.
FINDINGS OF FACT
At all times material hereto, Respondent has been a physician licensed to practice in the State of Florida. He is Board-certified in pediatrics and practices pediatric medicine.
After Respondent completed his internship and residency at Jackson Memorial Hospital in Miami in 1982, he joined the Plantation Pediatrics Group (hereinafter "PPG"), a pediatric practice in Broward County. Respondent was 28 years old at the time that he accepted his first job as a doctor and joined that active pediatric practice, becoming one of four doctors who practiced there.
The other doctors were Michael Halle, M.D.; Mark Tafeen, M.D.; and Deborah Hiltz, M.D. Dr. Halle was the president and senior partner of the group, which was sometimes referred to as Dr. Halle's practice. It was clear to the other doctors, to the staff, and to the patients' parents that Dr. Halle was in charge. In September of 1988, for reasons unrelated to the Magalios case, PPG divided, with Dr. Halle and Dr. Hiltz remaining. Dr. Tafeen and Respondent left to form their own practice at another location.
In the late afternoon of Tuesday, May 12, 1987, Jason Magalios, a sixteen-year-old boy, was brought to PPG by Leslie Magalios (who at the time was Leslie Hersch) and Greg Magalios, the boy's uncle. Jason Magalios had never before been treated by any doctor at PPG, and that visit on May 12th was the only time Jason was ever seen at that location. On that day, Jason was seen by Respondent.
Leslie Magalios and Jason told Respondent that Jason had been sick for two weeks, complaining of a sore and swollen throat; pain in his neck, ear, and jaw; and a general weakness. Respondent examined Jason, conducted a spot mono test, and took a sample to culture for beta-hemolytic streptococcus, working on a differential diagnosis of mononucleosis or strep throat. Both tests were conducted in the PPG office.
The mononucleosis test was negative. Because the results of the strep culture would not be known until the following day, Respondent instructed Leslie Magalios to call in for the results of that test on Wednesday, May 13. He advised her that if the test results were negative, additional tests would have to be performed at a lab or hospital. Respondent dispensed a two-day supply of antibiotics and wrote a prescription for medication to help Jason sleep. As they were leaving the office, Leslie and Greg insisted that Jason also be given a prescription for Darvocet, and Respondent complied.
The Magalios family did not contact PPG on the following day. When Leslie Magalios did contact Respondent on Thursday, May 14, he reported that the strep test was also negative. He referred Jason to Broward General Hospital for the following additional tests: complete blood count, differential, repeat mono spot, toxoplasmosis titre, cytomegalovirus titre and erythrocyte sedimentation rate. Respondent specifically advised Leslie Magalios that he would be away on vacation after May 14 and that the other doctors in the group would follow the case.
On the following day, May 15, Respondent went to Sanibel for a one-week vacation with his 7 1/2 months pregnant wife, his two young children, and his wife's parents. While he was away, Respondent learned from Dr. Halle that Jason's death was imminent. Dr. Halle also told Respondent that the boy's father, Dennis Magalios, was threatening to kill the doctors and their families, that Mr. Magalios had a criminal background and was known by the police to be violent, and that the threats should be taken seriously. Dr. Halle was in a state of panic and had moved his family into a hotel, had rented cars for himself and his family members who drove, and had made arrangements for police protection at the office of PPG.
Respondent contacted Leslie Magalios from Sanibel. She was concerned for the safety of her son Phillip, who spent time with Jason and was a regular patient of Respondent.
Jason died on May 17, 1987. The parties have stipulated that the cause of his death is not relevant to this proceeding.
Respondent was extremely upset and could not understand why Jason had died. He had never before "lost a patient." In addition, based upon the information conveyed by Dr. Halle, Respondent and his wife were extremely upset and very frightened for their safety and for that of their children. They were even afraid to return to their home due to the threats from Jason's father. No one affiliated with PPG had ever seen Jason's father, and no one knew what he looked like until after the police provided them with a mug shot of Mr. Magalios.
Respondent and his family returned from Sanibel on May 22, 1987. They returned to their home where Respondent left his children with his mother-in- law. Respondent and his wife immediately went to the office of PPG to speak with Dr. Halle. When they arrived at PPG, they encountered police cars in the PPG parking lot and uniformed policemen in the patient waiting room.
Respondent and his wife went inside and spoke with Dr. Halle. Dr. Halle gave Respondent Jason's chart and told Respondent that he had reviewed Jason's chart, that the chart was not complete, that Respondent needed to take it home and re-write it to make it more complete. Dr. Halle told them that he had checked with their attorney and Respondent needed to re-write the chart to make it as complete as possible.
Respondent and his wife became even more upset and frightened after seeing the police guarding the employees and patients of PPG and after being instructed by Dr. Halle that Respondent needed to re-write the chart to make it more complete. They returned to their home. Their emotional state was such that Respondent's mother-in-law questioned what had happened when they met with Dr. Halle, and Respondent's wife told her that Dr. Halle had told Respondent to re-write the chart. Respondent's mother-in-law left.
Respondent then re-wrote the chart with the assistance of his wife. She re-wrote the nurse's notes, word for word, and Respondent re-wrote the portion of the chart that he had previously written. At the time that Respondent re-wrote the chart, he intended it to replace the original.
On the following day, Respondent returned to PPG and handed Dr. Halle the original chart and the re-written chart. The final entries in the chart were made by others at a later time and not under the direction of Respondent.
Jason's father filed a civil wrongful death malpractice action against all four doctors at PPG and against their professional corporation. Respondent was represented in the civil case by attorneys Charles M. Hartz and A. Scott Lundeen.
At the first meeting among Respondent and his attorneys, he fully disclosed to them the re-writing of Jason's chart and the circumstances concerning his re-writing of that chart. It was agreed by Respondent and his attorneys that the re-writing of Jason's chart would be disclosed during the normal course of discovery in that civil litigation and that if for some reason no one questioned the authenticity of the chart, the fact that the chart had been re-written would still be voluntarily disclosed by Respondent. It was Respondent's attorneys' strong and expressed desire, however, that the fact that the chart had been re-written not be disclosed until after the deposition of Leslie Magalios was taken in that malpractice litigation, if it were possible to so delay the disclosure. In any event, if asked about the chart under oath, Respondent would be truthful and would disclose.
Respondent's attorneys were concerned that if Jason's father and Leslie Magalios learned that Jason's chart had been re-written prior to them being deposed, they would feel free to say anything that they wanted in their depositions about what had occurred during the five days between Jason's first contact with PPG and his death. They were hopeful that the testimony of Leslie Magalios and of Jason's father would be more truthful if they believed Jason's chart were the original chart. They also believed that Leslie Magalios was the only person who could verify the accuracy of the information contained in the re-written chart when they questioned her during her deposition as to the complaints made to Respondent when Jason was examined and treated by Respondent on May 12, 1987.
Upon learning that the chart had been re-written, his attorneys directed Respondent to prepare an annotated exhibit while his memory was still fresh, indicating which entries on the re-written chart had been made by whom and what information had been added in the re-writing. Respondent prepared that annotated exhibit and gave it to his attorneys at the outset of their representation.
In the civil malpractice litigation brought by Jason's father against the doctors at PPG, each doctor was represented by different attorneys provided by that doctor's medical malpractice insurance carrier. Additionally, the individual doctors had their own personal attorneys involved in their representation. Because of the number of attorneys involved and the difficulty in scheduling depositions of doctors at times that all the attorneys could attend, discovery in the civil litigation was slow.
Respondent's deposition was taken in the civil litigation on January 15, 1992. During that deposition Respondent disclosed to the plaintiffs that he had re-written Jason's chart. He also gave them a copy of the annotated re- written record which pointed out those sections of the chart that Respondent remembered adding to the original entries, which portions had been written by Respondent's wife, and which sections had been written by others.
Respondent could only disclose the additions that had been made to the original chart from memory because he had not seen the original chart since he had returned it to Dr. Halle on May 23, 1987. Respondent had left the employ of PPG in September 1988, after which time he no longer had access to the original chart which he at all times believed had remained in the possession of Dr. Halle but could not be located.
During all the years that the civil litigation was pending, Respondent understood the importance of having the original chart to his defense in the medical malpractice law suit. If Respondent had had the original chart available to him, it would verify what Respondent had been saying regarding his care and treatment of Jason and would further verify that the re-written chart was identical to the original chart except that the re-written chart contained more information. Without the original chart, there could always be an allegation that Respondent had altered or falsified the information which he placed in the re-written chart. Conversely, the original chart would prove Respondent's assertion that the re-written chart was the same as the original chart but more detailed.
On July 4, 1993, Dr. Tafeen was working at the offices where he and Respondent practiced after leaving PPG. He was sorting through and cleaning out boxes of old "junk," such as old magazines and books and papers, when he came across an old file folder inside of which were several blank patient charts. Within the blank patient charts, he discovered the original chart for Jason Magalios. He immediately advised Respondent who was thrilled and elated at the discovery. Respondent immediately notified his attorney Scott Lundeen who immediately notified Respondent's other attorney Charles Hartz who was vacationing in the Bahamas. Hartz instructed Lundeen to immediately fax a copy of the original chart to the attorney representing the Magalios family, even without Hartz seeing it first.
The original chart for Jason Magalios was therefore available to and in the possession of the Magalios family and their attorney a week or two prior to the commencement of the malpractice trial. It was also available to and utilized by the expert witnesses who testified in that litigation.
The malpractice litigation resulted in a verdict in favor of Respondent and in favor of Dr. Hiltz. Doctors Tafeen and Halle had previously been dismissed from the malpractice law suit after the Magalios family had collected $1,000,000 from Dr. Halle and $100,000 from Dr. Tafeen. Mr. Magalios has filed an appeal from that determination that Respondent's treatment of Jason did not fall below any standard of care.
Mr. Magalios filed a complaint with the Department of Professional Regulation (now the Department of Business and Professional Regulation) on January 28, 1990, claiming that all four of the doctors at PPG were negligent in their treatment of Jason. Mr. Magalios claimed that the doctors refused to see or hospitalize Jason as his condition worsened before his death. He also claimed that the medical records for Jason were not authentic.
The Department investigated his claim that the doctors had deviated from acceptable standards of care and found no probable cause to proceed. The Department also investigated his claim that the records were not authentic. That investigation also resulted in a finding of no probable cause.
After Respondent testified during his deposition taken in the civil case, wherein he admitted that he had re-written Jason's chart by adding pertinent information that did not appear in the original chart, Mr. Magalios provided the Department with a transcript of Respondent's deposition. Upon receiving the deposition, the Department re-opened its investigation to determine whether it should initiate disciplinary proceedings against Respondent. The Department determined that Respondent should be interviewed by one of the Department's attorneys, Larry McPherson.
Subsequent to Jason's death, requests for Jason's records were directed to PPG. Copies of Jason's chart were furnished by Dr. Halle or his attorneys to the plaintiffs in the civil malpractice action, to the Department in response to Mr. Magalios' complaint, and to the Medical Examiner. Respondent was not the records custodian at PPG and was not the person who furnished copies of records in response to any of those requests.
Prior to conducting the Department's interview of Respondent, attorney McPherson interviewed the other doctors. McPherson questioned Dr. Halle as to the authenticity of the re-written chart and during that interview actually compared the copy the Department had previously obtained with the original re- written chart. Prior to interviewing Respondent, McPherson had fully satisfied himself as to the authenticity of the records, and he was no longer concerned about that issue.
Prior to McPherson's interview, Respondent met with his attorneys Charles Hartz and Scott Lundeen to prepare for the interview. Although they had preferred that the Department's interview not be conducted prior to the deposition of Leslie Magalios, the Department was not willing to postpone the interview since the Department considered the matter a high profile case.
Attorneys Hartz and Lundeen instructed Respondent not to invoke his Fifth Amendment privilege and to cooperate with the Department by submitting to the interview with McPherson, fully expecting questions directed to the authenticity of the re-written record. Respondent was instructed and intended to fully disclose the re-writing of the record if McPherson asked any question which was related to the authenticity of the record itself.
Respondent and his attorneys anticipated that McPherson would ask if the Department had the original record, if the record was complete, if any changes or additions had been made, if Respondent recognized the handwriting of the various entries on the record, or the basis for Mr. Magalios' belief that the record was not authentic. Respondent was further instructed by Hartz and Lundeen that if no questions were asked concerning the authenticity of the re-
written record, Respondent was not to volunteer the information. They instructed Respondent that he was only to answer the questions that were asked of him.
Although it would have been a normal practice for McPherson to send a copy of the records he had to a licensee before conducting an interview involving those records, McPherson did not send copies of the records he had to Respondent prior to conducting the telephonic interview of Respondent. Attorney Lundeen was present in Respondent's office when the interview was conducted, using Respondent's speaker phone, on October 26, 1990. Respondent had no records relating to Jason in front of him for him to refer to. Respondent was not sworn at the beginning of the interview, and at no time during his interview was Respondent under oath.
Much to the surprise of Respondent and his attorneys, McPherson did not ask him any questions regarding the authenticity of Jason's records during the interview McPherson conducted. Perhaps because McPherson had already satisfied himself that the chart was authentic prior to interviewing Respondent, McPherson did not ask Respondent if the record Dr. Halle had given the Department was the original record, did not ask Respondent to "confirm it" in any way, and did not ask any question relating to the authenticity of the chart itself. Further, McPherson did not ask Respondent about any of Mr. Magalios' allegations that the records had been altered.
No record was made of the interview of Respondent by McPherson. Both McPherson and Respondent remember, however, that the one question that made reference to the chart itself was simply a question asking Respondent to explain the discrepancy between the chart indicating a prescription for 10 darvocet but the actual prescription being written for 20 darvocet. Respondent explained how that mistake had occurred, and McPherson was satisfied with that explanation.
Respondent did not provide a written response to the Department after being advised of Mr. Magalios' complaints. Moreover, Respondent never represented to the Department that the records Dr. Halle had produced were Respondent's original records regarding his treatment of Jason.
After Magalios had provided the Department with a transcript of Respondent's deposition taken in the malpractice law suit wherein Respondent fully admitted re-writing Jason's chart, the Department returned the matter to the Board of Medicine which found probable cause to charge Respondent with various statutory violations as a result of the re-writing of the records. No probable cause has ever been found to charge Respondent with failing to meet the applicable standard of care regarding his examination, diagnosis, or treatment of Jason Magalios.
The information contained in the re-written chart is accurate. Respondent merely added pertinent negatives and other collateral information to what is contained in the original chart.
The emotional turmoil and fright suffered by the doctors at PPG at the time of Jason's death was considerable and has been intentionally kept alive all these years by Mr. Magalios. At the time of Jason's unexpected death, Mr. Magalios made verbal and written death threats to the doctors and threatened the lives of their loved ones. At first, the fear was intensified because no one even knew what the man who was threatening to kill them looked like in order that they could protect themselves.
Mr. Magalios has repeatedly left telephoned threats on the answering machine at the office of PPG and at Respondent's office after he ceased practicing with PPG. As an example of written threats, the October 29, 1987, envelope which Mr. Magalios admits he slipped under Respondent's door with Respondent's name and Dr. Halle's name on it contained two pictures of Jason and a note saying "soon, mother-fucker, an eye for an eye." Mr. Magalios has even given up his employment for the last five years in order to devote his time to prosecuting his claims against the doctors from PPG. Although a Circuit Court Judge has twice ordered Mr. Magalios to cease contacting Respondent, Mr. Magalios intentionally ignores those lawful orders and continues to harass and threaten Respondent and the other doctors from PPG. A tape recording of the message he left on Respondent's answering machine on January 1, 1994, was admitted in evidence.
Whether due to Leslie Magalios' lengthy employment by the Miami Herald, or whether due to other reasons, there has been much publicity surrounding Jason's death and the care rendered to him. The newspaper stories regarding Respondent have been negative. Respondent's children are now old enough to read and suffer the consequences of negative publicity regarding their father. Whenever another story appears in the newspaper, parents looking for a pediatrician for their children, and even parents of current patients, question Respondent. He takes the time to answer whatever questions they have regarding his treatment of Jason. He includes in his explanation the fact that he re- wrote Jason's chart and that what he did was wrong.
Respondent's children have been growing up in an atmosphere of fear for their safety. At first, Respondent's children were not permitted to play outside and were not permitted to answer the telephone or to answer the door. Respondent's middle child still has nightmares that Mr. Magalios is coming to kill him.
In addition to the $1,100,000 already paid to the Magalios family by Dr. Halle and Dr. Tafeen, in January of 1993, Mr. Magalios entered into a contract for the movie rights regarding Jason's death. It is reasonable to assume that Mr. Magalios' story would not be flattering to Respondent.
The re-written chart was reviewed by one of the Department's experts. That doctor determined that the medical records kept by Respondent were adequate to justify the course of treatment of Jason even though Respondent wrote in Jason's chart that he had given Jason a prescription for 10 Darvocet when the prescription was actually written for 20 and even though Respondent failed to record in the chart that he had also given Jason a prescription for acne medication. Re-writing the chart after Jason's death did not relate to the course of treatment rendered to Jason by Respondent and had no effect on the health of the patient.
Respondent never lied about the re-writing of the record in any proceeding or inquiry. The Department did not have to prove that Respondent re- wrote the medical record. Respondent admitted doing so and, pursuant to that admission, the Department then brought the charges against him contained in the Administrative Complaint.
Respondent did not intend to deceive the Department during his interview with attorney McPherson. Respondent fully expected attorney McPherson to ask him about the authenticity of the re-written record and was prepared to disclose what he had done. Further, Respondent was aware at all times that the
Department would discover the circumstances concerning the re-writing of the medical record when it was disclosed during the course of the malpractice proceeding.
Respondent has never been disciplined by the Department or any other regulatory body. At the time of the offense, Respondent's ability to practice medicine was under no legal constraint. Respondent has now practiced for fourteen years without any blemish on his record but for the fact that he re- wrote Jason's record and withheld disclosing that information until a time determined to be safe to do so.
Respondent enjoys a reputation as an excellent doctor among his patients, their parents, and other doctors in the community. Respondent cares for the children of many doctors, nurses, and other professionals. Notwithstanding public awareness of his mistake, Respondent's patients trust him and have confidence in his integrity as well as in his abilities as a physician.
Respondent has shown remorse and a desire to perform community service. Broward County has a need for qualified pediatricians to help with primary care for children who are HIV-positive and children with developmental difficulties. Dr. Joni Leterman is a pediatrician and is the Medical Director for the Department of Health and Rehabilitative Services District X Children's Medical Services. Respondent is the pediatrician for her children. She would welcome Respondent's abilities and time in providing community service through the program which she operates.
Respondent has fully cooperated with the Department since his disclosure under oath in his deposition that he had wrongfully re-written Jason's chart. Respondent has met with counsel for the Department and has agreed to testify on behalf of the Department when called upon to do so.
Although Respondent is charged with multiple counts of statutory violations, they all arise from the same act. That act did not expose any patient or member of the public to any injury or potential injury, physical or otherwise.
No pecuniary benefit or self-gain has inured to Respondent as a result of his wrongful act. Rather, Respondent's finances have been depleted as a result of his treatment of Jason Magalios so many years ago and all of the ensuing legal proceedings thereafter.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.
Section 458.331(1), Florida Statutes, authorizes the Board of Medicine to take disciplinary action against a licensee who is found guilty of the following conduct:
(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.
* * *
(m) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations.
* * *
(t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions or circumstances. The board shall give great weight to the provisions of
s. 766.102 when enforcing this paragraph. As used in this paragraph, "repeated malpractice" includes, but is not limited to, three or more claims for medical malpractice within the previous 5-year period resulting in indemnities being paid in excess of $10,000 each to the claimant in a judgment or settlement and which incidents involved negligent conduct by the physician. As used in this paragraph, "gross malpractice" or "the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances," shall not be construed so as to require more than one instance, event, or act. Nothing in this paragraph shall be construed to require that a physician be incompetent to practice medicine in order to be disciplined pursuant
to this paragraph.
* * *
(hh) Misrepresenting or concealing a material fact at any time during any phase of a licensing or disciplinary process or procedure.
Count Two of the Administrative Complaint filed in this cause charges Respondent with having violated Section 458.331(1)(k), Florida Statutes, by making deceptive, untrue, or fraudulent representations by re-writing the chart of Jason Magalios with the intent that the re-written chart be substituted for the original document. It was not necessary for the Department to prove the allegations contained in Count Two of the Administrative Complaint because Respondent admitted in his Answer to the Administrative Complaint that he violated Section 458.331(1)(k) as charged in Count Two. He has consistently taken the position that re-writing the patient's record was a serious mistake and one that he should and would admit. He admitted that act to his attorneys the first time he met with them and at that time reconstructed the original chart from memory. He admitted his act publicly the first time he was questioned under oath and was fully prepared to publicly admit it earlier if anyone had asked him. He continues to publicly admit that he committed this violation to anyone who inquires about his treatment of Jason Magalios.
Count One of the Administrative Complaint charges Respondent with violating Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records justifying the course of treatment of Jason Magalios. Only one expert testified as to this charge, which addresses the adequacy of medical records. The parties stipulated to the admission of the report of Dr. Nancy H. Dawber. Her report concluded that Respondent's medical records were adequate. The Department's allegations in Count One also make reference to Respondent's failure to maintain the original record. As subsequent events disclosed, Respondent did indeed maintain the original record, and it was made available to all interested persons immediately upon its discovery. Accordingly, the Department has presented no evidence in support of its allegation, and Respondent is not guilty of having violated Section 458.331(1)(m), Florida Statutes.
Count Three alleges that Respondent has violated Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician under similar conditions and circumstances by re-writing the chart of Jason with the intent that the re-written chart be substituted for the original chart. This charge requires the Department to prove by clear and convincing evidence that Respondent failed to practice medicine within acceptable standards of care. Dr. Dawber's report, the only expert evidence offered in this proceeding, concludes that Respondent's care and treatment of Jason Magalios was within acceptable standards of care. The Department alleges, however, that the re-writing of the record in and of itself is a violation of this provision. The Department's interpretation of this provision is in error. The court in Elmariah v. Dept. of Professional Regulation, Bd. of Medicine, 574 So.2d 164 (Fla. 1st Dist. 1990), distinguished those disciplinary provisions prohibiting certain conduct in the practice of medicine from those disciplinary provisions prohibiting certain conduct which is related to the practice of medicine. That Court then held that false or deceptive applications for staff privileges at various hospitals were not made "in the practice of medicine" although they were "related to" the practice of medicine because Section 458.305(3), Florida Statutes, defines the practice of medicine as meaning "the diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition."
Section 458.331(1)(t), Florida Statutes, deals directly with the practice of medicine. Respondent's re-writing of Jason's chart after Jason had died was, by definition, not "in the practice of medicine" and therefore cannot constitute a "failure to practice medicine." Therefore, Respondent's wrongful act which is prohibited by Subsection (k) of Section 458.331(1), Florida Statutes, is not also prohibited by Subsection (t), and the Department has failed in its burden of proving the allegations contained in Count Three of the Administrative Complaint.
Count Four of the Administrative Complaint alleges that Respondent misrepresented or concealed a material fact during the 1990 Department investigation of his treatment of Jason Magalios by confirming with a Department representative that the re-written medical record was the original record when, in fact, he knew that it was re-written after the patient had died. The Department alleges, therefore, that Respondent has violated Section 458.331(1)(hh) [subsequently re-numbered (gg)], Florida Statutes, by misrepresenting or concealing a material fact at any time during any phase of a licensing or disciplinary process or procedure. The Department has failed in its burden of proof as to Count Four.
The language of this subsection requires an affirmative act of misrepresentation or concealment. The Department's factual allegation contained in Count Four is that during the 1990 Department investigation, Respondent allegedly "confirmed" that the re-written medical record was the original record when he knew it was not. That allegation concerns the October 1990 interview of Respondent by attorney McPherson on behalf of the Department. Attorney McPherson candidly testified that his recollection of the interview was not an independent recollection but was based on reviewing the report he had written subsequent to the interview. That report was received in evidence in this case for the limited purpose of including in the record the document which he used to refresh his memory and was not admitted for the truth of the matters contained therein.
Respondent's attorneys Charles Hartz and Scott Lundeen did not want the Department to interview Respondent until after the deposition of Leslie Magalios had been taken since they did not yet want the Magalios family to be aware that the only record known at the time to be in existence was re-written after Jason's death. Hartz and Lundeen attempted to enlist the Department's cooperation in postponing the deposition for this purpose but the Department insisted on going forward. Hart, Lundeen, and Respondent were highly sensitive to the re-writing issue knowing what effect it could have in the case they were defending and they, therefore, went into the interview with attorney McPherson fully prepared and alert to any question related to that sensitive issue. McPherson, on the other hand, had already satisfied himself that there was no longer any concern regarding the authenticity of the records. Moreover, the evidence is uncontroverted that McPherson did not specifically ask about Mr. Magalios' allegations of altered records. A comparison of the vague, "refreshed" testimony of attorney McPherson, who was at the time no longer interested in the authenticity of the records, to the testimony of Respondent, of attorney Lundeen, and of attorney Hartz, who were highly alert for any questions directed to the records, demonstrates the lack of clear and convincing evidence the Department is required to present to prove its allegation. The Department has no proof that Respondent ever told attorney McPherson that the
re-written records were the original records and has only the refreshed recollection of attorney McPherson that the records were even indirectly referred to.
Petitioner argues that Respondent had some affirmative duty to volunteer to the Department that the record Dr. Halle had furnished to the Department was likely not the original record. Preliminarily, it is noted that the Administrative Complaint does not charge that Respondent failed in some affirmative duty to volunteer that information to the Department. Rather, the charge made in the Administrative Complaint is that Respondent affirmatively told attorney McPherson that the re-written record was the original record. It is axiomatic that the Department cannot change the nature of its allegations at this late stage.
Moreover, Respondent has a well established right not to volunteer information to the Department knowing that the information can be used to formulate charges against him. Notwithstanding his testimony that he fully intended to disclose the re-writing of the record if authenticity were questioned, he was not required to do so and could have remained silent. The Department's suggestion that Respondent never claimed his Fifth Amendment right to remain silent during the interview and therefore impliedly waived that right is without merit. The Fifth Amendment can be raised as soon as a question is asked which may tend to incriminate and cannot be legitimately raised in response to questions which do not tend to incriminate. The only questions
within the context of this case which would have intended to incriminate Respondent would be questions directed to the authenticity of the records provided to the Department, which questions were never asked.
The Fifth Amendment was available to Respondent at all times pertinent hereto. See State ex rel. Vining v. Florida Real Estate Comm'n, 281 So.2d 487 (Fla. 1973), and its progeny. Respondent had the right not to speak or cooperate with the Department at all. Instead, he cooperated and answered all questions asked. He could not have waived his Fifth Amendment right as to questions never asked. He did not have a duty to volunteer to the Department that the record that Dr. Halle had provided was probably the re-written record, and he cannot be penalized for relying upon his constitutional right not to do so.
The Department also argues that Respondent's lengthy silence before disclosing the re-written record should be construed as an aggravating factor in determining punishment, and that his silence constitutes another facet of Respondent's concealment of a material fact. Both arguments are unpersuasive. Respondent was instructed by his attorneys that the disclosure would be made as part of the discovery process in the civil malpractice law suit. The plaintiffs in that litigation did not take his deposition until January 15, 1992, and no evidence was offered that Respondent in any way delayed the scheduling of his own deposition. The testimony is uncontroverted that had the plaintiffs served an interrogatory asking Respondent about the authenticity of the chart, he would have disclosed the matter then. No such interrogatory was submitted. Once Respondent was instructed by his attorneys not to reveal the re-writing of the record, the timing of the disclosure was not within his control since he had no control over the sequence of discovery.
Additionally, the act of misrepresentation or concealment of a material fact requires a specific intent to deceive. The Department appears to reject Respondent's defense that he was rightfully following instructions of counsel since the Department suggests that Respondent was obligated to reject his attorneys' instructions and disclose his conduct to the Department whether questioned by the Department about it or not. Advice of counsel is a recognized defense to a specific intent crime or in the defense of a civil action for malicious prosecution. Duval Jewel Co. v. Smith, 102 Fla. 717, 136 So.2d 878 (Fla. 1931); Reliance Insurance Co. v. Lazzara Oil Co., 601 So.2d 1241 (Fla. 2d Dist. 1992); and Applestein v. Preston, 335 So.2d 604 (Fla. 3d Dist. 1976). The defense of reliance upon legal counsel requires that the client disclose to the attorney the facts as he knows them. If, upon those facts, the attorney advises the client to notify authorities in a criminal context or to sue in a civil context, there is no malice and a charge of malicious prosecution will fail. In Respondent's case, he completely disclosed the facts regarding the re-written chart to his attorneys when they first met with him and it was upon their advice that he remained silent until his deposition was taken. It may well be that refusing to cooperate and follow the advice of the attorneys provided by Respondent's insurance carrier may have jeopardized the monies available to pay an adverse judgement had the Magalios family prevailed in their malpractice litigation against Respondent.
Finally, Respondent argues that his interview with attorney McPherson was not a phase of the disciplinary process or procedure as required by the language of former Section 458.331(hh), Florida Statutes. Contrary to the testimony of McPherson, Section 455.225, Florida Statutes, does not speak in terms of phases or stages of the disciplinary process. The statute also sets forth how complaints are to be handled and investigated. It is reasonable to
conclude that complaints which are not legally sufficient or for which the Probable Cause Panel finds no probable cause are not part of the disciplinary process. Once the Department files an administrative complaint, then the disciplinary process begins and the licensee is given various options as to how he may elect to proceed. Prior to that point the matter is only under investigation. As such, strictly construing former Subsection (hh), McPherson's interview with Respondent was during the investigation of Mr. Magalios' complaint and no disciplinary process or procedure had yet been instituted.
This conclusion is buttressed by the fact that former Subsection (ii) which is now Subsection (hh) of Section 458.331(1), Florida Statutes, prohibits improperly interfering with "an investigation or with any disciplinary proceeding." The Legislature has clearly set forth that an investigation is different from a disciplinary proceeding by its choice of language in the same manner as it did when it used the words "investigation or disciplinary proceeding" in Section 455.225(4) and (11), Florida Statutes.
Respondent moved to dismiss the Administrative Complaint on the basis that the Department has not compiled a subject matter index as required by Section 120.53, Florida Statutes. That motion was denied, although the issue is preserved for appeal by stipulation and need not be reconsidered here. The relevance to penalty considerations is well stated in Gessler v. Dept. of Business and Professional Regulation, 627 So.2d 501, 503 (Fla. 4th Dist. 1993), as follows:
The purpose [of providing a subject matter index] is to protect citizens against arbitrariness, to give citizens the means of finding out whether they are receiving treatment equal to similarly situated persons, and to give the courts the opportunity to determine whether the agency is acting arbitrarily or evenhandedly.
Gessler is about the principle of stare decisis as a governor on otherwise unchecked administrative discretion.
In response to Respondent's motion to dismiss, he was provided copies of Board of Medicine newsletters, which provided a brief squib for cases having come before the Board since 1986. No factual information is provided in the newsletters--only the statutory language of the charge and the penalty. Respondent does not agree that the newsletters are a "subject matter index" or that they suffice in lieu of one. Nonetheless, counsel for Respondent has reviewed the newsletters provided and has obtained information on cases which involved issues of misrepresentation or fraud for comparison with the act of Respondent so that the principle of stare decisis can be fairly applied. The Department has cited no cases as precedent to show the appropriate penalty for Respondent's conduct.
The cases reviewed by Respondent fall into three categories in order of decreasing relevance: altered or fabricated medical records cases, fraud cases, and other miscellaneous misrepresentation cases.
Altered Medical Records Cases:
Dong Hack Koo, M.D., DOAH Case No. 86-1066, ME 0027494, Final Order filed 11/16/87. In addition to having been found guilty of various violations concerning the handling of controlled substances, Dr. Koo was found to have completely fabricated medical records for all ten patients whose records were subpoenaed by the Department. The fabrication of the charts was discovered by questioned document examination using scientific instruments and not upon an admission by the doctor. Penalty: $2,000 fine, one year suspension, five years probation. (Dr. Koo ultimately defaulted on the obligations contained in the final order and his license was revoked.)
Jeffrey Dee Fleigel, M.D., DPR Case No. 89-13488, ME 0030605, Final Order filed 6/18/93. Dr. Fleigel made late entries in hospital records which appeared to be false in that they differed from entries made by the nurses. He made entries for examinations months after he had last treated the patient.
Penalty: $5,000 fine, lectures admitting his conduct.
Joseph A. Laguna, M.D., ME 0046346, Final Order filed 10/29/90. Dr.
Laguna added false entries to a hospital chart on a patient who had died, indicating that he had come to the hospital to see the patient when he had in fact only called in. Penalty: reprimand, $2,000 fine, 20 hours CME, and 50 hours community service.
Fernando Jimenez, M.D., DPR Case No. 0038212, DOAH Case No. 86-5058, ME 0031545, Final Order filed 5/12/88, affirmed on appeal, Jimenez v. DPR, Board of Medicine, 556 So.2d 1219 (Fla. 4th Dist. 1990). Dr. Jimenez wrote an expiration summary 14 months after a patient died from a heart attack, adding entries that various heart tests had been recommended. The entries were made after he was advised of the Department's investigation. The Department was able to prove that the entries about alleged advice to undergo the heart tests were not in records originally obtained by the family. The Department used Dr.
Jimenez's lying during the disciplinary proceeding as a basis to aggravate the penalty recommended by the Hearing Officer, who recommended one year probation and a $5,000 fine. The Board's increase of penalty was ultimately upheld on appeal. Penalty: $5,000 fine, 1 year suspension, and 2 years probation.
Nrisingha Das Mukherjee, M.D., DPR Case No. 0031752, DOAH Case No. 83- 2677, Final Order filed 6/29/84. Dr. Mukherjee made late entries (at least one of which was made two years later) concerning various laboratory tests that had been done during the patient's treatment. The case also addressed Dr.
Mukherjee's quality of medical treatment. The Hearing Officer noted that the substance of the late entries was not shown to be false, that the doctor enjoyed a good reputation in his community, had no disciplinary history and the event took place four years before the case proceeded. A $2,000 fine was recommended. Penalty: The Board added 100 hours of community service to the recommended penalty of a $2,000 fine and 1 year probation.
Milton E. Harvey, M.D., ME 0004347, Final Order filed 12/22/86. Dr.
Harvey made a false entry in a patient's chart in one case, and in the other deviated from the standard of care with two patients, delegated responsibility to an unlicensed individual, and made false claims to an insurance company for services never rendered. Penalty: 1 year suspension, 2 years probation, $2,000 fine, reprimand.
Manuel A. Gonzalez, M.D., ME 0004901, Final Order filed 8/7/91. Dr.
Gonzalez altered one lab slip, forged another, and lied to the Department's
investigator about same. He was also charged with inadequate medical records and substandard care of his patient. Penalty: $10,000 fine, reprimand, 18 months probation, indirect supervision, and 40 hours CME.
Daniel C. Dantini, Jr., M.D., DPR Case No. 90-09227, ME 0015778, Final Order filed 6/8/93. Dr. Dantini was charged with making a late entry in addition to practicing unacceptable medicine and failing to keep appropriate medical records. Penalty: $5,000 fine, reprimand and 40 hours CME.
Fraud Cases:
Milton E. Harvey, M.D. See above.
Jose R. Rodriquez-Acosta, M.D., DPR Case No. 97193, ME 23305, Final Order filed 12/20/91. This doctor was convicted of Medicaid fraud for billing for services never rendered. He also wrote prescriptions for patients never seen. Penalty: 6 month suspension which was stayed, $2,000 fine, 2 years probation, indirect supervision, 30 hours CME, and 30 hours community service.
Cesar L. Ruiz, M.D., ME 0025258, Final Order filed 4/16/87. Numerous instances of Medicaid fraud, billing for services never rendered. Penalty:
$1,000 fine, reprimand.
Pravinkumar Patel, M.D., DOAH Case No. 88-4786, ME 0039675, Final Order filed 2/7/90. Dr. Patel was found guilty of repeatedly filing false insurance claims for patients never seen and for care never rendered. Penalty: revocation.
Betty Jo Carter Bertoncini, M.D., ME 0031419, Final Order filed 8/13/92. This doctor was convicted of Medicare fraud in federal court.
Penalty: $3,000 fine, reprimand, 3 years probation with indirect supervision, and 150 hours of community service each year of probation.
Luis F. Ayala, M.D., ME 0023454, Final Order filed 12/19/90.
Criminally convicted. Billed for services never rendered. Penalty: $500 and letter of concern.
Don Dwyer, M.D., ME 0035378, Final Order filed 2/10/87. Dr. Dwyer was criminally convicted and wrote prescriptions to patients for his own use.
Penalty: suspension of 18 months, 5 years probation, $500 fine and reprimand.
Theodore G. Aldhizer, M.D., ME 0014870, Final Order filed 4/11/90. This doctor wrote prescriptions to patients for his own use. Penalty: fined (unclear amount), reprimand, and limitation of authority to prescribe controlled substances for two years.
Alfonso Rodriguez-Cuellar, M.D., DPR Case No. 0053109, DOAH Case No.
86-0872, ME 002856, Final Order filed 6/23/87. This doctor filed Medicaid claims for patients never seen and pre-signed blank prescription forms.
Penalty: 30 day suspension, $2,000 fine.
Other Misrepresentation Cases:
Lehel A. Kadosa, M.D., ME 0041277, Final Order filed 12/10/91. Dr. Kadosa gave steroids to a patient who was a weight lifter and wanted them for body building. When questioned by the Department, he lied and claimed they were
given for erection problems. Penalty: $3,500 fine, reprimand, 10 hours CME, and 18 months probation.
William C. Leach, M.D., ME 0044750, Final Order filed 7/16/91. Dr.
Leach was charged with a fifteen count complaint concerning prescribing controlled substances to known substance abusers without medical justification. He created false records by prescribing to one patient under several aliases.
Penalty: $2,500 fine, 2 years probation, indirect supervision, reprimand.
Young Hwan Kim, M.D., ME 0037511, Final Order filed 12/11/91. Dr. Kim lied on an application for a job at the Department of Corrections about never having had his license suspended. Penalty: $1,000 fine, reprimand, and 20 hours CME.
Carlos M. Oliveira, M.D., DPR Case No. 89-13580, ME 0036302, Final Order filed 9/6/91. This doctor was charged with falsely reporting that he had done a bilateral Salpingo-oophorectomy (removal of ovaries and fallopian tubes) when he had only removed the right side. Penalty: $2,000 fine and reporting requirements for two years.
Pedro Luis Rodriguez, M.D., ME 0036015, Final Order filed 2/20/87.
Signed a false affidavit for a medical license applicant. Penalty: Reprimand and 1 year probation.
Jesus Escar, M.D., ME 0003427, Final Order filed 11/7/86. Signed a false affidavit for a medical license applicant. Penalty: Reprimand and 1 year probation.
Victor A. Minsal, M.D., ME 0017244, Final Order filed 12/16/86.
Signed a false affidavit for a medical license applicant. Penalty: $1,000 fine, 1 year probation, 50 hours community service and 12 lectures.
Many of the above-cited cases involve substandard care and doctors whose lies persisted through trial, whose conduct involved multiple patients, was designed for financial gain or resulted in criminal convictions. Factors in mitigation are omitted. In Respondent's case his misconduct occurred within the context of extreme fear and upset. He had never before "lost a patient." He was facing death threats to himself and his family. He was scared and his wife was terrified. His senior partner, who himself was in a state of panic, directed him to re-write the chart and advised that he had already checked it out with their attorney.
Unlike many of the above-cited cases, nothing in Jason's re-written chart was shown to be false. Also unlike many of the above cases, Respondent never lied. When interviewed by the Department he was prepared to admit that Jason's chart had been re-written. When finally questioned at his deposition, he testified truthfully and completely about the re-written chart. He also so testified at trial and had met several times with the Department for the purpose of fully cooperating in its case against him.
Unlike the cases summarized, the instant case presents numerous additional mitigation factors. For example, the act took place seven years ago and did not involve any issue of care and treatment of the patient. It was not an act designed for financial gain. Respondent has no disciplinary history and although multiple counts were charged, they arise out of one course of conduct involving one chart and one patient.
Rule 61F6-20.001, Florida Administrative Code, sets forth the Board of Medicine's disciplinary guidelines and specifies in Section (2) that a violation of Section 458.331(1)(k), Florida Statutes, falls within a penalty range from probation to revocation and an administrative fine from $250 to $5,000. Section
of that Rule requires the Board to consider aggravating or mitigating factors, such as the following:
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 or applicant;
The disciplinary history of the applicant or licensee in any jurisdiction and the length of practice;
Pecuniary benefit or self-gain inuring to the applicant or licensee;
Any other relevant mitigating factors.
In each of the above categories, Respondent's penalty should be mitigated.
The Department argues in aggravation of the penalty to be imposed by the Board that Respondent's wrongful act of re-writing Jason's chart has caused enormous emotional pain and hardship to the Magalios family and has deprived the Medical Examiner and the Board of Medicine and the Department of Business and Professional Regulation from access to authentic medical records. However, no evidence was offered that the re-written chart contained information that was inaccurate; rather, the evidence in this record reveals that the information in the re-written chart, as well as the information in the original chart when it was found, was an accurate representation of Jason's symptoms and medical history, and of Respondent's diagnosis and course of treatment. In other words, the re-written chart was not the original chart, but it was a correct chart. Moreover, the enormous emotional pain and hardship suffered by the Magalios family was not caused by Respondent, but by the tragedy involved in their unexpected loss of Jason. Similarly, the Department's argument that Respondent has prevented Jason's family from knowing the truth about the cause of his death is unpersuasive. The Magalios family has known the truth about Jason's death for quite some time, whether or not Mr. Magalios is willing to accept it.
On the other hand, Respondent has suggested a number of other revelant mitigating factors to be considered pursuant to Subsection (g) of Rule 61F6- 20.001(3), Florida Administrative Code, as follows:
The time which has passed since the offense;
The licensee's veracity during his testimony in this proceeding;
The licensee's cooperation or lack thereof with the Department;
The licensee's repeated public acknowledgment of his act;
The licensee's age and experience at the time the offense was committed;
The licensee's medical qualifications and standing in his profession;
The licensee's remorse or contrition for his conduct;
The need for rehabilitation;
The effects the matter has had on the licensee (For example: Did the licensee reap financial gain from his offense, or, has the offense cost the licensee either financially or by subjecting him to years of public scrutiny.);
The willingness of the licensee to perform public service;
The need for and availability of community service;
The necessity or lack thereof for supervision of the licensee's practice; and
The effect the punishment will have on the patients of the licensee.
Respondent does not seek to excuse his conduct. He has from the outset of this case admitted what the Department refers to as the key charge.
He does not seek sympathy or special treatment. Nor does he wish to be pardoned because of the pressures which contributed to produce his aberrant mistake in judgment. He does want it made clear, however, that this was an act which does not define his character, it defiles it. He has proven in this proceeding that he is a person and a doctor of tremendous character, and this factor must be considered in determining what his just punishment should be.
He is a good doctor. The quality of his medicine has not been questioned in this case. The Board, after twice investigating this matter, found no basis to charge a deviation from accepted standards of care. In the civil medical negligence case, the jury returned a verdict for Respondent with full knowledge that the medical record had been re-written.
The community which Respondent serves has come out in force in support of their doctor. Parents of patients, doctors including one chief of staff at a local hospital, lawyers, a law professor, nurses, and even a law enforcement officer with experience working undercover for the Department have voluntarily come forward to express their trust and confidence in him. These people know right from wrong. They understand that he made a mistake. They have had the opportunity to get to know him. They trust him with one of the most valuable things in life, the lives of their children.
In considering Respondent's character, many objective considerations are apparent. He has no disciplinary history. He is considered "a doctor's doctor" because he takes care of the families of so many doctors and nurses. In the seven years which have transpired since this matter arose his record is unblemished. He has chosen not to hide from his misconduct. Even Mr. Magalios testified that Respondent is the only doctor from PPG who would talk to him after Jason's death. Mr. Magalios testified that Respondent told him that as soon as his deposition was taken the truth would come out. When his deposition was taken, it did. He testified fully and honestly. He advised the Department that he would not defend the "(k)" charge, acknowledging it was well founded.
It has taken integrity to stand before all and admit his mistake.
Respondent has had to face this case in the public eye. His practice, his family, his neighbors, friends, peers and patients' parents are familiar with the facts. The evidence shows that this notoriety has exacted a toll, both professional and personal. The financial burden has been significant. His reputation would have been ruined but for the years of consistent good medicine he has practiced through these trying times.
This is not a case where revocation, suspension, or probation is appropriate. His patients' parents testified that to take their doctor from them would punish them. Many of these people have children with special difficulties, difficulties with which Respondent is familiar. They searched for a pediatrician they trusted. They do not want to lose their doctor.
Dr. Leterman is Medical Director for Children's Medical Services under the jurisdiction of the Department of Health and Rehabilitative Services in Broward County. She testified that there are now six hundred HIV-positive children who have developmental and medical problems treated under a program called the DEI Project. There is great need for pediatricians who are willing to help care for these children. This is an opportunity for the Board to punish Respondent without destroying him and at the same time provide a significant benefit to the community. There is no question that Respondent would be valuable to these programs.
A commitment to do public service, given Respondent's lengthy work week is a severe punishment. It is no less a punishment because it would help children. Work without pay and significant loss of time from his practice and family is suitable punishment. It is an opportunity to make Respondent's punishment meaningful and constructive.
In determining the penalty to be imposed on Respondent, it is appropriate that the Board also consider the punishment which has been inflicted on him by Mr. Magalios, a punishment not authorized by statute or by Board rule. In addition to continued written and verbal death threats against Respondent and his family, Mr. Magalios seven years later still continues his quest for vengeance. The tape recording of his new year's resolution left on Respondent's answering machine on January 1, 1994, contains outrageous statements and evidences his present intent to continue inflicting emotional abuse and fear despite two judicial orders to cease and desist from such behavior.
Respondent's act of re-writing Jason's chart is not condoned in this Recommended Order. However, Respondent's wrongful act must be judged in the context of the extraordinary circumstances in which it occurred. The tragedy of Jason's death should not be compounded by punishing Respondent well beyond the punishment assessed against doctors in prior action taken by the Board for far more grievous conduct.
In his Proposed Recommended Order, Respondent has suggested a penalty which serves as a reminder that Respondent has been willing to accept responsibility for his wrongful conduct and to suffer the consequences for it. He has suggested that he pay an administrative fine of $5,000, receive a public reprimand, and perform 300 hours community service over a 3-year period. He also suggests that he is, without reservation, willing to perform additional hours if required to do so. Respondent's proposed penalty is harsh under the circumstances. A public reprimand serves no useful purpose since the Respondent
has already been publicly reprimanded on a number of occasions through newspaper articles disfavoring him and through his repeated admission of wrongdoing to all who inquire.
As to the maximum fine of $5,000 authorized by the Board's penalty guidelines, that amount is severe in this case and has not been adjusted in consideration of all of the mitigating factors. Respondent and his wife testified as to the severe financial consequences to them of all of the litigation arising from Respondent's care and treatment of Jason, and Mr. Magalios has appealed the verdict in favor of Respondent in the malpractice case. Respondent further testified that his practice has suffered economically each time a newspaper article about this case has appeared. The minimum fine of
$250 is the appropriate amount of fine.
Similarly, a minimum of 50 hours of community service per year for three years constitutes a fair penalty and is still a substantial amount of time to extract from a pediatrician's work schedule. The total of 150 hours of community service is sufficient to confer a real benefit and yet be realistic enough to be accomplished by a doctor with a busy pediatric practice.
Respondent is, of course, free to contribute more hours than those assessed.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered:
Finding Respondent guilty of Count Two of the Administrative Complaint filed herein;
Finding Respondent not guilty of Counts One, Three, and Four and dismissing those Counts of the Administrative Complaint filed herein;
Imposing an administrative fine of $250 to be paid by a date certain;
and
Requiring that Respondent perform 150 hours of community service over
a 3-year period.
DONE and ENTERED this 3rd day of May, 1994, at Tallahassee, Florida.
LINDA M. RIGOT
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 3rd day of May, 1994.
APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-6228
Petitioner's proposed findings of fact numbered 1, 3-9, 11, 14-16, 19, 20, and 22 have been adopted either verbatim or in substance in this Recommended Order.
Petitioner's proposed finding of fact numbered 2 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law.
Petitioner's proposed findings of fact numbered 10, 12, 13, 17, 18, 21, and 25 have been rejected as being unnecessary to the issues involved herein.
Petitioner's proposed findings of fact numbered 23, 24, and 26-29 have been rejected as not being supported by the weight of the evidence in this cause.
Respondent's proposed findings of fact numbered 1-29, 31-41, and 43-92 have been adopted either verbatim or in substance in this Recommended Order.
Respondent's proposed finding of fact numbered 30 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel.
Respondent's proposed finding of fact numbered 42 has been rejected as being irrelevant to the issues under consideration in this cause.
COPIES FURNISHED:
Joseph Harrison, Esquire Slepin, Harrison & Feuer
2500 North Military Trail, Suite 275 Boca Raton, Florida 33431
Michael Cohen, Esquire
517 Southwest First Avenue
Fort Lauderdale, Florida 33301
Dr. Marm Harris, Executive Director Department of Business and
Professional Regulation Board of Medicine
1940 North Monroe Street Tallahassee, Florida 32399-0770
Jack McRay, 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 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
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION BOARD OF MEDICINE
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,
Petitioner,
DBPR CASE NO. 92-02998
vs. DOAH CASE NO. 93-6228
LICENSE NO. ME0036780
MICHAEL MORRISON, 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 June 4, 1994, in Palm Beach, Florida, for consideration of Hearing Officer's Recommended Order in the case of Department of Business and Professional Regulation v. Michael Morrison, M.D. At the hearing before the Board, Petitioner was represented 'by Joseph Harrison, Attorney At Law. Respondent appeared before the Board with Michael Cohen, Attorney At Law. Upon consideration of the Hearing Officer's Recommended Order after review of the complete record and having been otherwise fully advised in its premises, the Board makes the following, findings and conclusions:
FINDINGS OF FACT
At all times, material hereto, Respondent has been a physician licensed to practice in the State of Florida. He is Board-certified in pediatrics and practices pediatric medicine.
After Respondent completed his internship and residency at Jackson Memorial Hospital in Miami in 1982, he joined the Plantation Pediatrics Group (hereinafter "PPG"), a pediatric practice in Broward County. Respondent was 28 years old at the time that he accepted his first job as a doctor and joined that active pediatric practice, becoming one of four doctors who practiced there.
The other doctors were Michael Halle, M.D.; Mark Tafeen, M.D.; and Deborah Hiltz, M.D. Dr. Halle was the president and senior partner of the group, which was sometimes referred to as Dr. Halle's practice. It was clear to the other doctors, to the staff, and to the patients that Dr. Halle was in charge. In September of 1988, for reasons unrelated to the M case, PPG divided, with Dr.
Halle and Dr. Hiltz remaining. Dr. Tafeen and Respondent left to form their own practice at another location.
In the late afternoon of Tuesday, May 12, 1987, J.M., a sixteen-year- old boy, was brought to PPG by his mother and the boy's uncle. J.M. had never before been treated by any doctor at PPG, and that visit on May 12th was the only time J.M. was ever seen at that location. On that day, J.M. was seen by Respondent.
The boy's mother and the boy told Respondent that he had been sick for two weeks, complaining of a sore and swollen throat; pain in his neck, ear, and jaw; and a general weakness. Respondent examined J.M., conducted a spot mono test, and took a sample to culture for beta-hemolytic streptococcus, working on a differential diagnosis of mononucleosis or strep throat. Both tests were conducted in the PPG office.
The mononucleosis test was negative. Because the results of the strep culture would not be known until the following day, Respondent instructed J.M 's mother to call in for the results of that test on Wednesday, May 12. He advised her that if the test results were negative, additional tests would have to be performed at a lab or hospital. Respondent dispensed a two-day supply of antibiotics and wrote a prescription for medication to help J.M. sleep. As they were leaving the office, L and G insisted that J.M. also be given a prescription for Darvocet, and Respondent complied.
The family did not contact PPG on the following day. When J.M.'s mother did contact Respondent on Thursday, May 14, he reported that the strep test was also negative. He referred J.M. to Broward General Hospital for the following additional tests: complete blood count, differential, repeat mono spot, toxoplasmosis titre, cytomegalovirus titre and erythrocyte sedimentation rate. Respondent specifically advised J.M.'s mother that he would be away on vacation after May 14 and that the other doctors in the group would follow the case.
On the following day, May 15, Respondent went to Sanibel for a one week vacation with his 7 1/2 months pregnant wife, his two young children, and his wife's parents. While he was away, Respondent learned from Dr. Halle that J.M.'s death was imminent. Dr. Halle also told Respondent that the boy's father, was threatening to kill the doctors and their families, that he had a criminal background and was known by the police to be violent, and that the threats should be taken seriously. Dr. Halle was in a state of panic and had moved his family into a hotel, had rented cars for himself and his family members who drove, and had made arrangements for police protection at the office of PPG.
Respondent contacted J.M.'s mother from Sanibel. She was concerned for the safety of her son P.M., who spent time with J.M. and was a regular patient of Respondent.
J.M. died on May 17, 1987. The parties have stipulated that the cause of his death is not relevant to this proceeding.
Respondent was extremely upset and could not understand why J.M. had died. He had never before "lost a patient." In addition, based upon the information conveyed by Dr. Halle, Respondent and his wife were extremely upset and very frightened for their safety and for that of their children. They were afraid to return to their home due to the threats from J.M.'s father. No one affiliated with PPG had ever seen J.M.'s father, and no one knew what he looked like until after the police provided them with a mug shot of him.
Respondent and his family returned from Sanibel on May 22, 1987. They returned to their home where Respondent left his children with his mother-in- law. Respondent and his wife immediately went to the office of PPG to speak with Dr. Halle. When they arrived at PPG, the encountered police cars in the PPG parking lot and uniformed policemen in the patient waiting room.
Respondent and his wife went inside and spoke with Dr. Halle. Dr. Halle gave Respondent J.M.'s chart and told Respondent that he had reviewed J.M. 's chart, that the chart was not complete, that Respondent needed to take it home and rewrite it to make it more complete. Dr. Halle told them that he had checked with their attorney and Respondent needed to rewrite the chart to make it as complete as possible.
Respondent and his wife became even more upset and frightened after seeing the police guarding the employees and patients of PPG and after being instructed by Dr. Halle that Respondent needed to rewrite the chart to make it more complete. They returned to their home. Their emotional state was such that Respondent's mother-in-law questioned what had happened when they met with Dr. Halle, and Respondent's wife told her that Dr. Halle had told Respondent to rewrite the chart. Respondent's mother in-law left.
Respondent then modified the chart with the assistance of his wife. She rewrote the nurse's notes, and word for word, and Respondent modified the portion of the chart that he had previously written. A the time that Respondent modified the chart, he intended it to replace the original.
On the following day, Respondent returned to PPG and handed Dr. Halle the original chart and the rewritten chart. The final entries in the chart were made by others at a later time and not under the direction of Respondent.
J.M.'s father filed a civil wrongful death malpractice action against all four doctors at PPG and against their professional corporation. Respondent was represented in the civil case by attorneys Charles M. Hartz and A. Scott Lundeen.
At the first meeting among Respondent and his attorneys, he fully disclosed to them the rewriting of J.M.'s chart and the circumstances concerning his rewriting of that chart. It was agreed by Respondent and his attorneys that the rewriting of J.M.'s chart would be disclosed during the normal course of discovery in that civil litigation and that if for some reason no one questioned the authenticity of the chart, the fact that the chart had been rewritten would still be voluntarily disclosed Respondent. It was Respondent's attorneys' strong and expressed desire, however, that the fact that the chart had been rewritten not be disclosed until after the deposition of J.M.'s mother was taken in that malpractice litigation, if it were possible to so delay the disclosure. In any event, if asked about the chart under oath, Respondent would be truthful and would disclose.
Respondent's attorneys were concerned that if J.M 's father and mother learned that J.M.'s chart had been rewritten prior to them being deposed, they would feel free to say anything that they wanted in their depositions about what had occurred during the five days between J.M.'s first contact with PPG and his death. They were hopeful that the testimony of L, M and of J.M.'s father would be more truthful if they believed J.M.'s chart were the original chart. They also believed that J.M.'s mother was the only person who could verify the
accuracy of the information contained in the rewritten chart when they questioned her during her deposition as to the complaints made to Respondent when J.M. was examined and treated by Respondent on May 12, 1987.
Upon learning that the chart had been rewritten, his attorneys directed Respondent to prepare an annotated exhibit while his memory was still fresh, indicating which entries on the rewritten chart had been made by whom and what information had been added in the rewriting. Respondent prepared that annotated exhibit and gave it to his attorneys at the outset of their representation.
In the civil malpractice litigation brought by J.M.'s father against the doctors at PPG, each doctor was represented by different attorneys provided by that doctor's medical malpractice insurance carrier. Additionally, the individual doctors had their own personal attorneys involved in their representation. Because of the number of attorneys involved and the difficulty in scheduling depositions of doctors at times that all the attorneys could attend, discovery in the civil litigation was slow.
Respondents deposition was taken in the civil litigation on January 15, 1992. During that deposition Respondent disclosed to the plaintiffs that he had rewritten J.M.'s chart. He also gave them a copy of the annotated rewritten record which pointed out those sections of the chart that Respondent remembered adding to the original entries, which portions had been written by Respondent's wife, and which sections had been written by others.
Respondent could only disclose the additions that had been made to the original chart from memory because he had not seen the original chart since he had returned it to Dr. Halle on May 23, 1987. Respondent had left the employ of PPG in September 1988, after which time he no longer had access to the original chart which he at all times believed had remained in the possession of Dr. Halle but could not be located
During all the years that the civil litigation was pending, Respondent understood the importance of having the original chart to his defense in the medical malpractice law suit.
On July 4, 1993, Dr. Tafeen was working at the offices where he and Respondent practiced after leaving PPG. He was sorting through and cleaning out boxes of old "junk", such as old magazines and books and papers, when he came across an old file folder inside of which were several blank patient charts. Within the blank patient charts, he discovered the original chart for J.M. He immediately advised Respondent who was thrilled and elated at the discovery. Respondent immediately notified his attorney Scott Lundeen who immediately notified Respondents other attorney Charles Hartz who was vacationing in the Bahamas. Hartz instructed Lundeen to immediately fax a copy of the original chart to the attorney representing J.M.'s family, even without Hartz seeing it first.
The original chart for J.M. was therefore available to and in the possession of the family and their attorney a week or two prior to the commencement of the malpractice trial. It was also available to and utilized by the expert witnesses who testified in that litigation.
The malpractice litigation resulted in a verdict in favor of Respondent and in favor of Dr. Hiltz. Doctors Tafeen and Halle had previously been dismissed from the malpractice law suit after the M family had collected
$1,000,000 from Dr. Halle and $100,000 from Dr. Tafeen. J.M.'s father has filed an appeal from that determination that Respondents treatment of J.M. did not fall below any standard of care.
J.M.'s father filed a complaint with the Department of Professional Regulation (now the Department of Business and Professional Regulation) on January 28, 1990, claiming that all four of the doctors at PPG were negligent in their treatment of J.M. The boy's father claimed that the doctors refused to see or hospitalize J.M. as his condition worsened before his death. He also claimed that the medical records for J.M. were not authentic.
The Department investigated his claim that the doctors had deviated from acceptable standards of care and found no probable cause to proceed. The Department determined that Respondent should be interviewed by one of the Department's attorneys, Larry McPherson. The Department also investigated his claim that the records were not authentic. That investigation also resulted in a finding of no probable cause.
After Respondent testified during his deposition taken in the civil case, wherein he admitted that he had rewritten J.M. s chart by adding pertinent information that did not appear in the original chart, J.M.'s father provided the Department with a transcript of Respondent's deposition. Upon receiving the deposition, the Department re-opened its investigation to determine whether it should initiate disciplinary proceedings against Respondent.
Subsequent to J.M.'s death, requests for J.M.'s records were directed to PPG. Copies of J.M.'s chart were furnished by Dr. Halle or his attorneys to the plaintiffs in the civil malpractice action, to the Department in response to J.M.'s father's complaint, and to the Medical Examiner. Respondent was not the records custodian at PPG and was not the person who furnished copies of records in response to any of those requests.
Prior to conducting the Department's interview of Respondent, attorney McPherson interviewed the other doctors. McPherson questioned Dr. Halle as to the authenticity of the rewritten chart and during that interview actually compared the copy the Department had previously obtained with the original rewritten chart. Prior to interviewing Respondent, McPherson had fully satisfied himself as to the authenticity of the records, and he was no longer concerned about that issue.
Prior to McPherson's interview, Respondent met with his attorneys Charles Hartz and Scott Lundeen to prepare for the interview. Although they had preferred that the Department's interview not be conducted prior to the deposition of J.M.'s mother, the Department was not willing to postpone the interview since the Department considered the matter a high profile case.
Attorneys Hartz and Lundeen instructed Respondent not to invoke his Fifth Amendment privilege and to cooperate with the Department by submitting to the interview with McPherson, fully expecting questions directed to the authenticity of the rewritten record. Respondent was instructed and intended to fully disclose the rewriting of the record if McPherson asked any question which was related to the authenticity of the record itself.
Respondent and his attorneys anticipated that McPherson would ask if the Department had the original record, if the record was complete, if any changes or additions had been made, if Respondent recognized the handwriting of the various entries on the record, or the basis for J.M.'s father's belief that
the record was not authentic. Respondent was further instructed by Hartz and Lundeen that if no questions were asked concerning the authenticity of the rewritten record, Respondent was not to volunteer the information. They instructed Respondent that he was only to answer the questions that were asked of him.
Although it would have been a normal practice for McPherson to send a copy of the records he had to a licensee before conducting an interview involving those records, McPherson did not send copies of the records he had to Respondent prior to conducting the telephonic interview of Respondent. Attorney Lundeen was present in Respondent's office when the interview was conducted, using Respondent's speaker phone, on October 26, 1990. Respondent had no records relating to J.M. in front of him for him to refer to. Respondent was not sworn at the beginning of the interview, and at no time during his interview was Respondent under oath.
Much to the surprise of Respondent and his attorneys, McPherson did not ask him any questions regarding the authenticity of J.M.'s records during the interview McPherson conducted. Perhaps because McPherson had already satisfied himself that the chart was authentic prior to interviewing Respondent, McPherson did not ask Respondent if the record Dr. Halle had given the Department was the original record, did not ask Respondent to "confirm it" in any way, and did not ask any question relating to the authenticity of the chart itself. Further, McPherson did not ask Respondent about any of J.M.'s father's allegations that the records had been altered.
No record was made of the interview of Respondent by McPherson. Both McPherson and Respondent remember, however that the one question that made reference to the chart itself was simply a question asking Respondent to explain the discrepancy between the chart indicating a prescription for 10 darvocet but the actual prescription being written for 20 darvocet. Respondent explained how that mistake had occurred, and McPherson was satisfied with that explanation.
Respondent did not provide a written response to the Department after being advised of J.M.'s father's complaints. Moreover, Respondent never represented to the Department that the records Dr. Halle had produced were Respondent's original records regarding his treatment of J.M.
After the boy's father had provided the Department with a transcript of Respondents deposition taken in the malpractice law suit wherein Respondent fully admitted rewriting J.M.'s chart, the Department returned the matter to the Board of Medicine which found probable cause to charge Respondent with various statutory violations as a result of the rewriting of the records. No probable cause has ever been found to charge Respondent with failing to meet the applicable standard of care regarding his examination, diagnosis, or treatment of J.M.
The emotional turmoil and fright suffered by the doctors at PPG at the time of J.M.'s death was considerable and has been intentionally kept alive all these years by the boy's father. At the time of J.M.'s unexpected death, the boy's father made verbal and written death threats to the doctors and threatened the lives of their loved ones. At first, the fear was intensified because no one even knew what the man who was threatening to kill them looked like in order that they could protect themselves.
J.M.'s father has repeatedly left telephone threats on the answering machine at the office of PPG and at Respondent's office after he ceased practicing with PPG. As an example of written threats, the October 29, 1987, envelope which J.M.'s father admits he slipped under Respondent's door with Respondent's name and Dr. Halle's name on it contained two pictures of J.M. and a note saying "soon, mother-fucker, an eye for an eye." The boy's father has even given up his employment for the last five years in order to devote his time to prosecuting his claims against the doctors from PPG. Although a Circuit Court Judge has twice ordered J.M.'s father to cease contacting Respondent, he intentionally ignores those lawful orders and continues to harass and threaten Respondent and the other doctors from PPG. A tape recording of the messages he left on Respondent's answering machine on January 1, 1994, was admitted in evidence.
Whether due to J.M.'s mother's lengthy employment by the Miami Herald, or whether due to other reasons, there has been much publicity surrounding J.M.'s death and the care rendered to him. The newspaper stories regarding Respondent have been negative. Respondent's children are now old enough to read and suffer the consequences of negative publicity regarding their father. Whenever another story appears in the newspaper, parents looking for a pediatrician for their children, and even parents of current patients, question Respondent. He takes the time to answer whatever questions they have regarding his treatment of J.M. He includes in this explanation the fact that the rewrote J.M.'s chart and that what he did was wrong.
Respondent's children have been growing up in an atmosphere of fear for their safety. At first, Respondents children were not permitted to play outside and were not permitted to answer the telephone or to answer the door. Respondent's middle child still has nightmares that J.M.'s father is coming to kill him.
In addition to the $1,000,000 already paid to the J.M.'s family by Dr. Halle and Dr. Tafeen, in January of 1993, J.M.'s father entered into a contract for the movie rights regarding J.M. s death. It is reasonable to assume that J.M.'s father's story would not be flattering to Respondent.
The rewritten chart was reviewed by one of the Department's experts. That doctor determined that the medical records kept by Respondent were adequate to justify the course of treatment of J.M. even though Respondent wrote in J.M.'s chart that he had given J.M. a prescription for 10 Darvocet when the prescription was actually written for 20 and even though Respondent failed to record in the chart that he had also given J.M. a prescription for acne medication. Rewriting the chart after J.M.'s death did not relate to the course of treatment rendered to J.M. by Respondent and had no effect on the health of the patient.
Respondent never lied about the rewriting of the record in any proceeding or inquiry. The Department did not have to prove that Respondent rewrote the medical record. Respondent admitted doing so and, pursuant to that admission, the Department then brought the charges against him contained in the Administrative Complaint.
Respondent fully expected attorney McPherson to ask him about the authenticity of the rewritten record and was prepared to disclose what he had done. Further, Respondent was aware at all times that the Department would discover the circumstances concerning the rewriting of the medical record when
it was disclosed during the course of the malpractice proceeding. However; Respondent did not reveal the existence of the original record.
Respondent has never been disciplined by the Department or any other regulatory body. At the time of the offense, Respondent's ability to practice medicine was under no legal constraint. Respondent has now practiced for fourteen years without any blemish on his record but for the-fact that he rewrote J.M.'s record and withheld disclosing that information until a time determined to be safe to do so.
Respondent enjoys a reputation as an excellent doctor among his patients, their parents, and other doctors in the community. Respondent cares for the children of many doctors, nurses, and other professionals. Notwithstanding public awareness of his mistake, Respondent's patients trust him and have confidence in his integrity as well as in his abilities as a physician.
Respondent has shown remorse and a desire to perform community service. Broward County has a need for qualified pediatricians to help with primary care for children who are HIV-positive and children with developmental difficulties. Dr. Joni Leterman is a pediatrician and is the Medical Director for the Department of Health and Rehabilitative Services District X Children's Medical Services. Respondent is the pediatrician for her children. She would welcome Respondent's abilities and time in providing community service through the program which she operates.
Respondent has fully cooperated with the Department since his disclosure under oath in his deposition that he had wrongfully rewritten J.M.'s chart. Respondent has met with counsel for the Department and has agreed to testify on behalf of the Department when called upon to do so.
Although Respondent is charged with multiple counts of statutory violations, they all arise from the same act.
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.
Section 458.331(1), Florida Statutes, authorizes the Board of Medicine to take disciplinary action against a licensee who is found guilty of the following conduct:
(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.
* * *
(m) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results,
test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations.
* * *
(t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions or circumstances. The board shall give great weight to the provisions of
s.766.102 when enforcing this paragraph. As used in this paragraph, "repeated malpractice" includes, but is not limited to, three or more claims for medical malpractice within the previous 5-year period resulting in indemnities being paid in excess of
$10,000 each to the claimant in a judgment or settlement and which incidents involved negligent conduct by the physician. As used in this paragraph, "gross malpractice" or "the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances," shall not be construed so as to require more than one instance, event, or act. Nothing in this paragraph shall be construed to require that a physician be incompetent to practice medicine in order to be disciplined pursuant to this paragraph.
(hh) Misrepresenting or concealing a material fact at any time during any phase of a licensing or disciplinary process or procedure.
Count one of the Administrative Complaint filed in this cause charges Respondent with violating Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records justifying the course of treatment of J.M. As a matter of law, being unaware of the existence or whereabouts of medical records is a failure to keep or maintain them. The Petitioner has proved the allegation by clear and convincing evidence.
Count Two of the Administrative Complaint filed in this cause charges Respondent with having violated Section 458.331(1)(k), Florida Statutes, by making deceptive, untrue, or fraudulent representations by rewriting the chart of J.M. with the intent that the rewritten chart be substituted for the original document. It was not necessary for the Department to prove the allegations contained in Count Two of the Administrative Complaint because Respondent admitted in his Answer to the Administrative Complaint that he violated Section 458.331(1)(k) as charged in Count Two. He testified that rewriting the patient's record was a serious mistake and one that he should and would admit. He admitted that act to his attorneys the first time he met with them and at that time reconstructed the original chart from memory. He admitted his act publicly the first time he was questioned under oath and was fully prepared to publicly admit it earlier if anyone had asked him. He continues to publicly admit that he committed this violation to anyone who inquires about his treatment of J.M.
Count Three alleges that Respondent has violated Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician under similar conditions and circumstances by rewriting the chart of
J.M. with the intent that the rewritten chart be substituted for the original chart. This charge requires that the Department prove by clear and convincing evidence that Respondent failed to practice medicine within acceptable standards of care. Dr. Dawber's report, the only expert evidence offered in this proceeding, concludes that Respondent's care and treatment of J.M. was within acceptable standards of care. The Department alleges, however, that the rewriting of the record in an itself is a violation of this provision. The Department's interpretation is correct. Making and maintaining medical records is an integral and fundamental element of the practice of medicine. The fact that the patient had already died at the time of the alleged action, does not remove the activity from being "in the practice of medicine."
However, Respondent's wrongful conduct that is the basis of this alleged violation is the same conduct that is the basis of the violation charged in Count Two. The Board concludes that it is duplicitive and unnecessary to find Respondent guilty of multiple violations based upon a single act.
Count Four of the Administrative Complaint alleges that Respondent misrepresented or concealed a material fact during the 1990 Department investigation of his treatment of J.M. by confirming with a Department representative that the rewritten medical record was the original record when, in fact, he knew that it was rewritten after the patient had died. The Department alleges, therefore, that Respondent has violated Section 458.331(1)(hh) [subsequently renumbered (gg)], Florida Statutes, by misrepresenting or concealing a material fact at any time during any phase of a licensing or disciplinary process or procedure. Clearly the investigation by the Department of the complaint filed by J.M.'s father against the Respondent was part of the disciplinary process. The language of Section 455.225, Florida Statutes, makes apparent that the investigative phase is part of the disciplinary process. Respondent's failure to divulge the facts that multiple medical records had been made and that the Department's investigation was relying on a medical record other than the original medical record were both material and would have been a violation, if specifically alleged in the Administrative Complaint.
The Hearing Officer asserted that Respondent had available at all times a Fifth Amendment privilege against incrimination citing Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973). Although Vining found revocation proceedings to be penal in nature, the statement about the Fifth Amendment applicability was dicta. The City of Hollywood v. Washington, 384 So.2d 1315 (Fla. 4th DCA 1980), the Court found that "Vining simply involved a constitutional defect in a statutory requirement." DeBock v. State of Florida,
512 So.2d 164 (Fla. 1987) has replaced Vining as authority on the Fifth Amendment question. The court stated in a bar disciplinary matter that:
Bar disciplinary proceedings are remedial and are designed for the protection of the public... Because attorneys are in position where members of the public must place their trust... and at times even their lives,... society rightfully demands that an attorney must possess a fidelity to truth and honesty.
The Court held that DeBock had no fifth amendment privilege. Likewise, Chapter 458, Florida Statutes, requires physicians to meet the legislative standard that seeks to protect the public against unsafe or incompetent medical practitioners. It would not seem possible that anyone could argue that attorneys represent a greater danger to the public than do physicians, and consequently there should be no greater discretion by physicians in the use of the Fifth Amendment privilege. Further, even any Fifth Amendment privilege that could exist in a criminal prosecution is restricted where the records requested are required to be kept under state laws by the member of the profession. Spevak v. Klein, 385
U.S. 511, 87 S.Ct. 625, 17 L.Ed 2d 574 (1967). In Boedy v. Department of Professional Regulation, 463 So.2d 215 (Fla. 1985), the Florida Supreme Court used language similar to the DeBock case. The court stressed the need to protect the public, via disciplinary cases, against physicians. The court ruled that the States's interest in protecting the health, safety and welfare of the citizens of Florida by identifying and disciplining physicians is a compelling state interest. Furthermore, the United States Supreme Court has held that the public interest may preclude a Fifth Amendment assertion such as the one at bar. Shajiro v. United States, 335 U.S. 1 (1947). As that Court stated, answers of a person to questions posed to him "are not compelled within the meaning of the Fifth Amendment unless the witness is required to answer over his valid claim of privilege." Minnesota v. Murphy, 465.U.S. 420, 427 (1984). It is a well established principle that the Fifth Amendment is only to protect against the danger of formal imposition of legal criminal liability. See general Ayers, Vining Revisited; The Fifth Amendment in Administrative Law, Fla. B.J., July/August, 1990, at 22; Lurie v. Florida State Board of Dentistry, 288 So.2d
223 (Fla. 1974). The Board concludes that Respondent did not have a Fifth Amendment privilege to assert in a disciplinary administrative proceeding and that even if such privilege does exist, Respondent is required to assert the privilege and his failure to do so results in a waiver. See Minnesota v. Murphy, 465 U.S. 420 (1984); 'and McDonald v. Department of Professional Regulation, Board of Pilot Commissioners, 582 So.2d 660 (Fla. 1st DCA 1991). Any such right cannot be sua sponte resurrected by the Hearing Officer.
Respondent moved to dismiss the Administrative Complaint on the basis that the Department has not compiled a subject matter index as required by Section 120.53, Florida Statutes. That motion was denied. The relevance to penalty considerations is well stated in Gessler v. Dept. of Business and Professional Regulation, 627 So.2d 501, 503 (Fla. 4th DCA 1993), as follows:
The purpose [of providing a subject matter index] is to protect citizens against arbitrariness, to give citizens the means of finding out whether they are receiving
treatment equal to similarly situated persons, and to give the courts the opportunity to determine whether the agency is acting arbitrarily or evenhandedly.
Gessler is about the principle of stare decisis as a governor on otherwise unchecked administrative discretion.
In response to Respondent's motion to dismiss, he was provided copies of Board of Medicine newsletters, which provided a brief squib for cases having come before the Board since 1986. No factual information is provided in the newsletters--only the statutory language of the charge and the penalty. Respondent does not agree that the newsletters are a "subject matter index" or that they suffice in lieu of one. Nonetheless, counsel for Respondent has
reviewed the newsletters provided and has obtained information on cases which involved issues of misrepresentation or fraud for comparison with the act of Respondent so that the principle of stare decisis can be fairly applied. The Department has cited no cases as precedent to show the appropriate penalty for Respondent's conduct.
The cases reviewed by Respondent fall into three categories in order of decreasing relevance: altered or fabricated medical records cases, fraud cases, and other miscellaneous misrepresentation cases.
Altered Medical Records Cases:
Dong Hack Koo, MD ,DOAH Case No. 86-1066, ME 0027494, Final Order filed 11/16/87. In addition to having been found guilty of various violations concerning the handling of controlled substances, Dr. Koo was found to have completely fabricated medical records for all ten patients whose records were subpoenaed by the Department. The fabrication of the charts was discovered by questioned document examination using scientific instruments and not upon an admission by the doctor. Penalty: $2,000 fine, one year suspension, five years probation. (Dr. Koo ultimately defaulted on the obligations contained in the final order and his license was revoked.)
Jeffrey Dee Fleigel, M.D., DPR Case 89-13488, ME 0030605, Final Order issued 6/18/93. Dr. Fleigel made late entries in hospital records which appeared to be false in that they differed from entries made by the nurses. He made entries for examinations months after he had last treated the patient.
Penalty: $5,000 fine, lectures admitting his conduct.
Joseph A. Laguna, M.D., ME 0046346, Final Order filed 10/29/90. Dr. Laguna added false entries to a hospital chart on a patient who had died, indicating that he had come to the hospital to see the patient when he had in fact only called in. Penalty: reprimand, $2,000 fine, 20 hours CME, and 50 hours community service.
Fernando Jimenez, M.D., DPR Case No. 0038212, DOAH Case No. 86-5058, ME 0031545, Final Order filed 5/12/88, affirmed on appeal, Jimenez v. DPR, Board of Medicine, 556 So.2d 1219 (Fla. 4th DCA 1990). Dr. Jimenez wrote an expiration summary 14 months after a patient died from a heart attack, adding entries that various heart tests had been recommended. The entries were made after he was advised of the Department's investigation. The Department was able to prove that the entries about alleged advice to undergo the heart tests were not in records originally obtained by the family. The Department used Dr. Jimenez's lying during the disciplinary proceeding as a basis to aggravate the penalty recommended by the Hearing Officer, who recommended one year probation and a
$5,000 fine. The Board's increase of penalty was ultimately upheld on appeal. Penalty: $5,000 fine, 1 year suspension, and 2 years probation.
Nrisingha Das Mukherjee, M.D., DPR Case No. 0031752, DOAH Case No. 83-3677, Final Order filed 6/29/84. Dr. Mukherjee made late entries (at least one of which was made two years later) concerning various laboratory tests that had been done during the patient's treatment. The case also addressed Dr.
Mukherjee's quality of medical treatment. The Hearing Officer noted tit the substance of the late entries was not shown to be false, that the doctor enjoyed a good reputation in his community, had no disciplinary history and the event took place four years before the case proceeded. A $2,000 fine was recommended. Penalty: The Board added 100 hours of community service to the recommended penalty of a $2,000 fine and 1 year probation.
Milton E. Harvey, M.D., ME 0004347, Final Order filed 12/22/86. Dr. Harvey made a false entry in a patient's chart in one case, and in the other deviated from the standard of care with two patients, delegated responsibility to an unlicensed individual, and made false claims to an insurance company for services never rendered. Penalty: 1 year suspension, 2 years probation, $2,000 fine, reprimand.
Manuel A. Gonzalez, M.D., ME 0004901, Final Order filed 8/7/91. Dr.
Gonzalez altered one lab slip, forged another, and lied to the Department's investigator about same. He was also charged with inadequate medical records and substandard care of his patient. Penalty: $10,000 fine, reprimand, 18 months probation, indirect supervision, and 40 hours CME.
Daniel C. Dantini, Jr., M.D., DPR Case No. 90-09227, ME 0015778, Final Order filed 6/8/93. Dr. Dantini was charged with making a late entry in addition to practicing unacceptable medicine and failing to keep appropriate medical records. Penalty: $5,000 fine, reprimand and 40 hours CME.
Fraud Cases:
Milton E. Harvey, M.D. See above.
Jose R. Rodriquez-Acosta, M.D., DPR Case No. 97193, ME 23305, Final Order filed 12-20/91. This doctor was convicted of Medicaid fraud for billing for services never rendered. He also wrote prescriptions for patients never seen. Penalty: 6 month suspension which was stayed, $2,000 fine, 2 years probation, indirect supervision, 30 hours CME, and 30 hours community service.
Cesar L. Ruiz, M.D., ME 0025258, Final Order filed 4/16/87. Numerous instances of Medicaid fraud, billing for services never rendered. Penalty:
$1,000 fine, reprimand.
Pravinkumar Patel, M.D., DOAH Case No. 88-4786, ME 0039675, Final Order filed 2/7/90. Dr. Patel was found guilty of repeatedly filing false insurance claims for patients never seen and for care never rendered. Penalty: revocation.
Betty Jo Carter Bertoncini, M.D., ME 0031419, Final Order filed 8/13/92.
This doctor was convicted of Medicare fraud in federal court. Penalty: $3,000 Fine, reprimand, 3 years probation with indirect supervision, and 150 hours of community service each year of probation.
Luis F. Ayala, M.D., ME 0023454,. Final Order filed 12/19/90. Criminally convicted. Billed for services never rendered. Penalty: $500 and letter of concern.
Don Dwyer, M.D., ME 0035378, Final Order filed 2/10/87. Dr. Dwyer was criminally convicted and wrote prescriptions to patients for this own use. Penalty: suspension of 18 months, 5 years probation, $500 fine and reprimand.
Theodore G. Aldhizer, M.D., ME 0014870, Final Order issued 4/11/90. This doctor wrote prescriptions to patients for his own use. Penalty: fined (unclear amount), reprimand, and limitation of authority to prescribe controlled substances for two years.
Alfonso Rodriguez-Cuellar, M.D., DPR Case No. 0053109,DOAH Case NO. 86- 0872, ME 002856, Final Order filed 6/23/87. This doctor filed Medicaid claims for patients never seen and presigned blank prescription forms. Penalty: 30 day suspension, $2,000 fine.
Other Misrepresentation Cases:
Lehel A. Kadosa, M.D., ME 0041277, Final Order filed 12/10/91. Dr. Kadosa gave steroids to a patient who was a weight lifter and wanted them for body building. When questioned by the Department, he lied and claimed they were given for erection problems. Penalty: $3,500 fine, reprimand, 10 hours CME, and 18 months probation.
William C. Leach, M.D., ME 0044750, Final Order filed 7/16/91. Dr. Leach was charged with a fifteen count complaint concerning prescribing controlled substances to known substance abusers without medical justification. He created false records by prescribing to one patient under several aliases. Penalty:
$2,500 fine, 2 years probation, indirect supervision, reprimand.
Young Hwan Kim, M.D., ME 0037511, Final Order filed 12/11/91. Dr. Kim lied on an application for a job at the Department of Corrections about never having had his license suspended. Penalty: $1,000 fine, reprimand, and 20 hours CME.
Carlos M. Oliveira, M.D., DPR Case No. 89-13580, ME 0036302, Final Order filed 9/6/91. This doctor was charged with falsely reporting that he had done a bilateral Salpingo cophorectomy (removal of ovaries and fallopian tubes) when he had only removed the right side. Penalty: $2,000 fine and reporting requirements for two years.
Pedro Luis Rodriguez, M.D., Final Order filed 2/20/87. Signed a false affidavit for a medical license applicant. Penalty: Reprimand and 1 year probation.
Jesus Escar, M.D., ME 0003427, Final Order filed 11/7/86. Signed a false affidavit for a medical license applicant. Penalty: Reprimanded and 1 year probation.
Victor A. Minsal, M.D., ME 0017244, Final Order filed 12/16/86. Signed a false affidavit for a medical license applicant. Penalty: $1,000 fine, 1 year probation, 50 hours community service and 12 lectures.
Many of the above-cited cases involve substandard care and doctors whose lies persisted through trial, whose conduct involved multiple patients, was designed for financial gain or resulted in criminal convictions. Also unlike many of the above cases, Respondent never lied. When interviewed by the Department he was prepared to admit that J.M.'s chart had been rewritten. When finally questioned at his deposition, he testified truthfully andompletely about the rewritten chart. He also testified at trial and had met several times with the Department for the purpose of fully cooperating in its case against him.
The instant case presents numerous mitigation factors. For example, the act took place seven years ago and did not involve any issue of care and treatment of the patient. Respondent has no disciplinary history and although multiple counts were charged, they arise out of one course of conduct involving one chart and one patient.
Rule 61F6-20.001, Florida Administrative Code, sets forth the Board of Medicine's disciplinary guidelines and specifies in Section (2) that a violation of Section 458.331(1)(k), Florida Statutes, falls within a penalty range from probation to revocation and an administrative fine from $250 to $5,000. Section
(3) of that rule requires the Board to consider aggravating or mitigating factors.
The Department argues in aggravation of the penalty to be imposed by the Board that Respondent's wrongful act of rewriting J.M.'s chart has caused enormous emotional pain and hardship to J.M.'s family and has deprived the Medical Examiner and the Board of Medicine and the Department of Business and Professional Regulation from access to authentic medical records.
On the other hand, Respondent has suggested a number of other relevant mitigating factors to be considered pursuant to Subsection (g) of Rule 61F6- 20.001(3), Florida Administrative Code, as follows:
The time which has passed since the offense;
The licensee's veracity during his testimony in this proceeding;
The licensee's cooperation or lack thereof with the Department;
The licensee's repeated public acknowledgment of his act;
The licensee's age and experience at the time the offense was committed;
The licensee's medical qualifications and standing in his profession;
The licensee's remorse or contrition for his conduct;
The need for rehabilitation;
The effects the matter has had on the licensee (For example: Did the licensee reap financial gain from his offense, or, has the offense cost the licensee either financially or by subjecting him to years of public scrutiny.);
The willingness of the licensee to perform public service;
The need for and availability of community service;
The necessity or lack thereof for supervision of the licensee's practice; and
The effect the punishment will have on the patients of the licensee.
Based upon the testimony of the character witness, the Hearing Officer found the Respondent to be a good doctor. The quality of his medical treatment has not been questioned in this case. The Probable Cause Panel of the Board, after twice investigating this matter, found no basis to charge a deviation from accepted standards of care. In the civil medical negligence case, the jury returned a verdict for Respondent with full knowledge that the medical record had been rewritten.
The community which Respondent serves has come out in force in support of their doctor. Parents of patients, doctors including one chief of staff at a local hospital, lawyers, a law professor, nurses, and even a law enforcement officer with experience working undercover for the Department have voluntarily come forward to express their trust and confidence in him. These people know right from wrong. They understand that he made a mistake. They have had the opportunity to get to know him. They trust him with one of the most valuable things in life, the lives of their children.
In considering Respondent's character, many objective considerations are apparent. He has no disciplinary history. He is considered "a doctor's doctor" because he takes care of the families of so many doctors and nurses. In the seven years which have transpired since this matter arose his record is unblemished. He has chosen not to hide from this misconduct. Even J.M.'s father testified that Respondent is the only doctor from PPG who would talk to him after J.M.'s death. J.M's father testified that Respondent told him that as soon as his deposition was taken the truth would come out. When his deposition was taken, it did. He testified fully and honestly. He advised the Department that he would not defend the "(k)" charge; acknowledging it was well founded.
It has taken integrity to stand before all and admit his mistake.
Respondent has had to face this case in the public eye. His practice, his family, his neighbors, friends, peers and patients' parents are familiar with the facts. The evidence shows that this notoriety has exacted a toll, both professional and personal. The financial burden has been significant. His reputation would have been ruined but for the years of consistent good medicine he has practiced through these trying times.
This is not a case where revocation, suspension, or probation will be helpful. His patients' parents testified that to take their doctor from them would punish them. Many of these people have children with special difficulties, difficulties with which Respondent is familiar. They searched for a pediatrician they trusted. They do not want to lose their doctor.
Dr. Leterman is Medical Director for Children's Medical Services under the jurisdiction of the Department of Health and Rehabilitative Services in Broward County. She testified that there are now six hundred HIV-positive children who have developmental and medical problems treated under a program called the DEI Project. There is great need for pediatricians who are willing to help care for these children. This is an opportunity for the Board to punish Respondent without destroying him and at the same time provide a significant benefit to the community.
A commitment to do public service, given Respondent's lengthy work weeks is a severe punishment. It is no less a punishment because it would help children. Work without pay and significant loss of time from his practice and family is suitable punishment. It is an opportunity to make Respondent's punishment--meaningful and constructive.
Respondent's act of reconstructing J.M.'s chart is not condoned in this Final Order. However, Respondent's wrongful act must be judged in the context of the extraordinary circumstances in which it occurred.
In his Proposed Recommended Order, Respondent has suggested a penalty which serves as a reminder that Respondent has been willing to accept responsibility for his wrongful conduct and to suffer the consequences for it. He has suggested that he pay an administrative fine of $5,000, receive a public
reprimand, and perform 300 hours community service over a 3-year period. He also suggests that he is, without reservation, willing to perform additional hours if required to do so.
A minimum of 100 hours of community service per year for three years constitutes a fair penalty and is still a substantial amount of time to extract from a pediatrician's work schedule. The total of 300 hours of community service is sufficient to confer a real benefit and yet be realistic enough to be accomplished by a doctor with a busy pediatric practice. Respondent is of course free to contribute more hours than those assessed.
Furthermore, the Board finds it necessary and appropriate to impose a suspension of one year. Although the several violations committed by Respondent would usually warrant such suspension the above stated mitigating circumstances also justify staying such suspension if all other disciplinary terms are complied' with in a timely manner. The Board also finds that completion of continuing medical education and a quality assessment evaluation would be beneficial to both the Respondent and the public.
DISPOSITION
WHEREFORE, based upon the forgoing Findings and Fact and Conclusions of Law the Board finds Respondent has violated Sections 458.331(I)(k) and (m), F.S. as charged in Counts One and Two of the Administrative Complaint and dismisses the charges of violating Section 458.33l(1)(t) and (hh), F.S. as set forth in Counts Three and Four of the Administrative Complaint. Furthermore, Respondent's license to practice medicine in Florida shall be REPRIMANDED and said license shall be SUSPENDED for a period of one year. However, said suspension shall be STAYED so long as Respondent complies in a timely manner with each requirement of this Final Order. Respondent shall pay an administrative fine of $5,000.00 with said fine being paid to the Board of Medicine within 30 days of the date this Final Order is filed. During the next three years, Respondent shall perform 300 hours of community service at a rate of 100 hours per year.
Community service shall consist of the delivery of medical services directly to patients, without fee or cost to the patients, for the good of the people of the State of Florida. Such community service shall be performed outside the physician's regular practice setting. Respondent shall submit a written plan for performance and completion of the community service to the Probationer's Committee for approval prior to performance of said community service.
Affidavits detailing the completion of community service requirements shall be filed with the Board annually. Respondent shall complete 8 hours of continuing medical education in record keeping which shall consist of the Florida Medical Association course entitled Quality Media Record keeping for the Health Care Professional and shall also complete 5 hours of Category I Continuing medical education in ethics. Said continuing education shall be completed within one year of the date this Final Order is filed and shall be in addition to those hours required for renewal of licensure. Respondent shall submit documentation of completion of the continuing medical education courses. Respondent shall also arrange for a quality assurance evaluation of his office practice to be performed by a Board approved risk manager within six months of the filing date of this Final Order. A written report of said evaluation shall be filed with the Probationer's Committee with evidence that Respondent has complied with all recommendations contained therein.
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 Department of Business and Professional Regulation 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 5th day of August, 1994.
BOARD OF MEDICINE
EDWARD A. DAUER, M.D. CHAIRMAN
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 Michael Morrison, M.D. c/o Michael J. Cohen, Esquire, 517 S.W. First Avenue, Ft. Lauderdale, Florida 33301 and to Linda M. Rigot, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, and by hand delivery to Joseph Harrison, Attorney At Law, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0992 on this day of , 1994.
AMENDED CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Michael Morrison, M.D., 7390 NW 5th St., #3, Plantation, Florida 33317-1610, and to Michael J. Cohen, Esquire, 517 SW First Ave., Ft. Lauderdale, Florida 33301, and to Linda M. Rigot, Hearing Officer, Division of Administrative Hearings, The DeSoto Bldg., 1230 Apalachee Pkwy, Tallahassee, Florida 32399-1550, and hand delivery to Joseph Harrison, Attorney At Law, Department of Business and Professional Regulation, 1940 N. Monroe St, Tallahassee, Florida 32399-0792 on or before 5:00 p.m., this 26th day of August, 1994.
Marm Harris, Ed.D. Executive Director Board of Medicine
Appendix A
CHANGES TO THE RECOMMENDED FINDINGS OF FACT
The word "rewrote" in paragraph 14 of the Recommended Order has been changed to "modified." The Board finds that this word more accurately reflects the activity of the Respondent as set forth by the evidence in the record. A comparison of the "original" medical record and the subsequently prepared medical record unequivocally establishes that Respondent did more than just copy over the "original" medical record.
The language in paragraph 23 stating that the original medical record would verify that the subsequently prepared medical record was identical to the original is rejected as not being supported by any competent and substantial evidence in the record. To the contrary, a comparison of exhibits 1 and 2 clearly establishes that the two versions of the medical record are not identical.
Paragraph 40 of the Recommended Order is rejected as not being supported by any competent and substantial evidence in the record.
The first sentence of paragraph 48 of the Recommended Order is rejected as not being supported by any competent and substantial evidence in the record. Paragraph 48 is further modified to reflect Respondent's failure to reveal the existence of an "original" record. This failure is admitted by Respondent and Respondent's attorney witnesses in their testimony and reiterated by Mr. McPherson in his testimony.
The final sentence of paragraph 53 of the Recommended Order is rejected as not being supported by any competent and substantial evidence in the record. Furthermore, as a matter of policy, the public safety is harmed by exposure to potential and real injury due to the egregious nature of Respondent's fraudulent act and hiding that fact from appropriate authorities for several years. The harm that would be done to the public by tolerating the fraudulent reconstructing of medical charts is such that it strikes deep at the public safety and welfare.
Paragraph 54 of the Recommended Order is rejected as not being supported by any competent and substantial evidence in the record. The proposed finding of fact ignores the fundamental and obvious fact that at least one of Respondent's stated motive in reconstructing the medical record was to better protect against exposure in a malpractice action.
Appendix B
RULINGS ON PETITIONER'S EXCEPTIONS TO FINDINGS OF FACT
1. - 3. Accepted
Rejected. Hearing Officer's findings supported by competent and substantial evidence in the record.
Accepted.
- .7 Rejected. Hearing Officer's findings supported by competent and substantial evidence in the record.
8. - 9. Accepted.
| Issue Date | Proceedings |
|---|---|
| Aug. 29, 1994 | Final Order filed. |
| May 03, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held February 7-9,1994. |
| Mar. 24, 1994 | Letter to LMR from Michael J. Cohen (re: typographical errors) filed. |
| Mar. 24, 1994 | Respondent`s Proposed Recommended Order filed. |
| Mar. 21, 1994 | Letter to LMR from Michael J. Cohen (re: Mr. Harrington's agreement to move the deadline for filing PRO) filed. |
| Mar. 15, 1994 | (Petitioner) Proposed Recommended Order Submitted by Petitioner filed. |
| Feb. 23, 1994 | Transcript (Volumes 1-5) filed. |
| Feb. 09, 1994 | CASE STATUS: Hearing Held. |
| Jan. 31, 1994 | Joint Prehearing Stipulation filed. |
| Jan. 26, 1994 | (6) Subpoena Ad Testificandum filed. (From Michael Cohen) |
| Dec. 29, 1993 | Letter to Parties of Record from CBA sent out. |
| Dec. 28, 1993 | Letter to B. Ladrie from A. Reynolds (re: confirmation of reservation for courtroom) filed. |
| Dec. 22, 1993 | Order Denying Motion to Dismiss sent out. |
| Dec. 17, 1993 | Notice of Hearing sent out. (hearing set for Feb 7-9, 1994; 10:30 first day; 9:00 day 2 and 3; Ft. Laud; Hearing at different location Feb. 10, 9:00am) |
| Dec. 14, 1993 | (Respondent) Notice of Taking Depositions filed. |
| Dec. 08, 1993 | Notice of Taking Deposition Via Telephone filed. (From Michael J. Cohen) |
| Dec. 06, 1993 | Petitioner`s Response to Respondent`s Motion to Dismiss; Petitioner`s Response to Respondent`s Request for Production filed. |
| Dec. 03, 1993 | (Respondent) Request for Production; Answer; Motion to Dismiss filed. |
| Nov. 24, 1993 | Letter to SLS from Joseph Harrison filed. |
| Nov. 15, 1993 | (Petitioner) Response to Initial Order filed. |
| Nov. 04, 1993 | Initial Order issued. |
| Nov. 01, 1993 | Agency referral letter; Administrative Complaint; Election of Rights filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 05, 1994 | Agency Final Order | |
| May 03, 1994 | Recommended Order | Penalty determination for doctor who admitted rewriting his patient chart with intent that it be substituted for original under unusual circumstances |
