STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE )
ADMINISTRATION, )
)
Petitioner, )
)
vs. ) CASE NO. 94-1866
) 94-1867
ALFRED O. BONATI, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
A hearing was held in this case in Tampa, Florida on March 21-24 and May 16-18, 1995, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Britt Thomas, Esquire
Natalie Duguid, Esquire
Agency for Health Care Administration 1940 North Monroe Street
Tallahassee, Florida 32399-0792
For Respondent: Salvatore A. Carpino, Esquire
8001 North Dale Mabry, Suite 301-A Tampa, Florida 33614
Jonathan W. Lubell, Esquire 750 Lexington Avenue
New York, New York 10022 STATEMENT OF THE ISSUES
The issue for consideration in this matter is whether Respondent's license as a physician in Florida should be disciplined because of the matters alleged in the Administrative Complaints filed herein.
PRELIMINARY MATTERS
By two separate Administrative Complaints, both dated March 14, 1994, Larry McPherson, Chief Medical Attorney for the Agency for Health Care Administration, on behalf of the Board of Medicine, sought to discipline Respondent's license as a physician in Florida. The Administrative Complaint filed in DOAH Case No. 94- 1866 incorporates Board of Medicine, (Board), cases 92-06862, 92-07703 and 92- 07436. The Administrative Complaint filed in DOAH Case No. 94-1867 incorporates Board cases 91-00510, 01-08973, 92-00771, 92-08282, 92-09384 and 92-10110. In
both Complaints the Board alleges that as to the patients referenced Respondent practiced medicine below the accepted standard of care, in violation of Section
458.331(1)(t), Florida Statutes; failed to obtain his patients' informed consent before doing an experimental procedure on them, in violation of Sections 381.026(4)(e) and 458.331(1)(g), Florida Statutes; failed to keep written medical records justifying the course of treatment rendered, in violation of Section 458.331(1)(m), Florida Statutes; and exercised influence on a patient for his financial gain or that of a third party, in violation of Section 458.331(1)(n), Florida Statutes. Respondent thereafter requested formal hearing on the allegations and this hearing ensued. At the hearing, the Agency determined that evidence regarding the experimental nature of the percutaneous lumbar discectomy, (PLD), would not be presented. In written argument submitted subsequent to the hearing, the Agency's counsel indicated the Agency had determined the PLD not to be experimental.
At the hearing, Petitioner presented the testimony of Cathy Witt, records custodian for Dr. Walker who treated one of Respondent's patients in issue; Gail
D. Shupe, records custodian for Dr. Slomka who treated one of Respondent's patients in issue; Patricia S. Werner, medical records custodian for Dr. Piazza who treated one of Respondent's patients in issue; Lyla Peddy Coart, records custodian for Dr. Barden who treated one of Respondent's patients in issue; Dr. Thomas B. Freeman, Board certified neurosurgeon who treated patient D.R. after Respondent saw him; Dr. Carlos Zubillaga, a Board certified neurologist who treated patient M.M. after Respondent saw him; R.L., D.R., L.Q., M.M. and R.H., all former patients of Respondent who form th e basis for some of the allegations herein; and Dr. Leon J. Abram, a Board certified orthopedic surgeon specializing in spinal surgery, and an expert in orthopedics and orthopedic surgery. Petitioner also introduced Petitioner's Exhibits 1 & 2, 4 & 5, 8 - 25, and 27 - 33.
Respondent testified in his own behalf and presented the testimony of Dr.
Anthony Gristina, a Board certified orthopedic surgeon, President and senior scientist of a research institute, former Chairman of the Department of Orthopedic Medicine at the Bowman Gray Hospital at Wake Forest University, and expert in orthopedic surgery and on issues involving experimental medical procedures; Dr. Henry H. Sherk, a Board certified orthopedic surgeon, former professor of surgery and Chief, Division of Orthopedics at the Medical College of Pennsylvania and currently Professor of Orthopedic surgery there, and an expert in orthopedic surgery; Dr. William O. Hopkins, a Board certified orthopedic surgeon specializing in the spine and an expert in orthopedic surgery and in percutaneous procedures of the back; Dr. Michael W. Perry, a Board certified internist employed at the Gulf Coast Orthopedic Clinic, (GCOC); Dr.
Marshall R. Kessler, a Board certified anesthesiologist employed at GCOC; Kathleen Small, a patient assistance employee at GCOC; Ann Giancaspro, administrative secretary and former surgery scheduling manager at GCOC; Francine Sutton, a licensed practical nurse employed at GCOC; James Kellog, a chiropractor formerly employed at GCOC; and Lisa D. Hanshaw, Business Manager at GCOC. Respondent also introduced Respondent's Exhibits A - C, E & F, H & I, K - M, and R - Y.
A transcript of the proceedings was furnished. Subsequent to the hearing, counsel for both parties submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.
FINDINGS OF FACT
At all times pertinent to the issues herein, the Petitioner, Board of Medicine, was the state agency responsible for the licensing of physicians and the regulation of the medical profession in Florida. Respondent is licensed as
a physician in Florida, holding license # ME 0038234. His specialty is orthopedics but he is not Board certified in that field.
Respondent practices medicine, specializing in orthopedic surgery with emphasis on the spine, at the Gulf Coast Orthopedic clinic in Hudson, Florida. Among the procedures he has performed at times pertinent to the issues herein are percutaneous lumbar foraminotomy, also known as foraminectomy or foraminostomy, (PLF); percutaneous cervical discectomy, (PCD); and percutaneous cervical foraminotomy, (PCF).
A PLF is an arthroscopic surgical procedure wherein instrumentation introduced through a succession of progressively larger cannulae via a posterolateral approach to the lumbar spine is utilized to remove spurs which have formed at the area of the neural foramen. A PCD involves a similar introduction of instrumentation via an anterolateral approach to the cervical spine to remove disc material from a cervical disc for the purpose of decompressing the nerve root at the corresponding level. A PCF involves a similar introduction of instrumentation via an anterolateral approach to the cervical spine to remove spurs which have formed at the area of the neural foramen at the corresponding level.
The three procedures referred to above, the PLF, the PCD and the PCF, are not commonly used or widely performed in the field of orthopedic surgery in the United States. Petitioner contends they are experimental procedures.
Petitioner contends that a procedure whose safety and efficacy have not been established is experimental. It asserts that physicians performing procedures whose efficacy and safety have not been established must specifically advise a prospective patient on whom such procedure is anticipated to be done of the experimental nature of the procedure as a part of obtaining informed consent prior to the procedure. However, the efficacy and safety of a procedure are not, by themselves determinative of experimentation.
PCD's are a logical extension/evolution of techniques that are already in use. They are being done in various places throughout the world, including the United States, and insurance companies have, in the past, paid for both PLDs, conceded by the Board to be non-experimental, and PCDs. The instant procedures in issue, including PLFs, which are done by physicians around the world, and the PCFs are not radical departures from present concepts. Though innovative, they are the natural evolution of existing techniques and procedures.
For example, chemonucleolysis, recognized by the medical profession as non-experimental, is a percutaneous procedure in which enzymes are injected into the intervertebral disc in order to dissolve it. There is little difference between this procedure, which has been used for approximately ten years and the PCD, save the injection of the enzyme. Another percutaneous procedure which is widely done is the use of the nucleotome, a reciprocating suction cutter consisting of a steel tube with a spinning blade. This is not considered by the medical profession to be an experimental procedure.
To be sure, Dr. Abram, a Board certified orthopedic surgeon with extensive experience in treating spinal pathology, is the only expert witness who practices in Florida. He has, however, by his own admission, not done any percutaneous or arthroscopic procedures involving the back or neck. On the other hand, Respondent's experts, Dr. Gristina, also a Board certified orthopedic surgeon, but who is not licensed in Florida, has extensive experience
in orthopedic surgery. He was formerly Associ ate Professor of orthopedic surgery and associate to the chairman of that department at New York University Hospital; he was chairman of the Department of Orthopedic Surgery at Bowman Gray Hospital at Wake Forest University; and at present he is President and Senior Scientist at the Medical Sciences Research Institute and practices orthopedic surgery in northern Virginia. For the year just prior to this hearing, he was associated with the Northern Virginia Spine Institute, and though he has not been lead surgeon in the near term, he has associated with the director of the institute in the performance of major spinal surgery. Under the circumstances, as a scientist his opinion as to what constitutes an experimental procedure and what is mere innovation is pertinent to the resolution of that issue.
Dr. Sherk, testifying for the Respondent, is a Board certified orthopedic surgeon and professor of surgery and chief of the division of orthopedics and rehabilitation at the Medical College of Pennsylvania. He is familiar with and has performed percutaneous procedures on the spine, most specifically chemonucleolysis and laser discectomy, and is familiar with Dr. Bonati and the percutaneous procedures he performs from having heard Respondent's presentations at international conferences on orthopedics. As a practitioner and academician, his opinion regarding the experimental nature of the procedures in issue is pertinent.
Dr. Hopkins, a Board certified orthopedic surgeon, came to percutaneous disc surgery through the microdiscectomy process and the percutaneous laser procedure which he still uses. He also has performed in the neighborhood of two hundred percutaneous disc surgeries, about half with the nucleotome and half with laser. He has done percutaneous foraminectomy procedures. Some time ago, while working for a laser company in Minneapolis, he became aware of Respondent's practice in percutaneous disc surgery. As a result, he came to GCOC on two occasions and observed Respondent perform the procedure on both lumbar and cervical discs. He has presented papers on percutaneous disc surgery at international conferences and gave a course on percutaneous procedures at the American Academy of Orthopedic Surgery in San Francisco approximately two years ago.
Taken together, and with all due respect and credence being afforded the opinion of Dr. Abram, the evidence of the experimental nature of the PLF, the PCD and the PCF is not persuasive and it is found that the procedures, though new and innovative, are logical extensions of and new uses of established procedures and are not experimental.
Respondent's records reflect that in each case in issue, written consent was obtained from the patient. The records also reflect that each patient was informed about the surgery, the pathology and the treatment to which the patient had agreed. An informed consent was also obtained by the anesthesiologist. Under the circumstances, it having been found that the percutaneous procedures are not experimental procedures, the informed consent obtained by the Respondent was adequate.
Clearly, Dr. Bonati's clinic is very well organized. As explained by Respondent and various members of his staff, once Respondent recommends surgery, the patient is given printed brochures and materials which explain the proposed procedure. If the patient is unclear as to the nature of the procedure or has any questions about it, he or she is given the opportunity to voice his or her concerns either to Respondent or to a nurse, and no further action is taken unless all questions are answered to the satisfaction of the patient. Each
patient is also given a video tape describing the procedure to be performed, and once the tape is viewed by the patient, further opportunity to ask questions is afforded.
Respondent and a nurse meet with each patient so that he can explain to the patient what the proposed procedure consists of, how it is to be performed and the risk involved. The patient is also advised of alternative methods of treatment which include physical therapy. Each patient is advised that an open procedure is also an alternative to the percutaneous procedure.
The patient is under only a local anesthetic during the percutaneous procedure and is aware of what is going on. The patient actually assists the surgeon by reporting feelings and sensations experienced. Respondent claims an anesthesiologist is present in the operating room during the surgery and talks with the patient throughout the procedure. There was no evidence introduced that any patient had ever complained after the procedure that what was done was not what had been explained beforehand. Generally, patients are referred to the in-house physical therapist after surgery, and there was no indication any patient had complained of that either.
AS TO THE PATIENT M.A.
In August, 1989, Patient M.A., a 21 year old female, presented to the Respondent complaining of neck and back pain. Respondent had the patient undergo an MRI on the area. On September 12, 1989 he informed her that the MRI studies revealed posterior disc bulge at C3/C4 through C6/C7 levels, with the largest bulging at C4/C5 through C5/C6 levels. Additional MRI studies were done of the patient which, on November 17, 1989, Respondent interpreted as showing a grade II bulging at the C5/C6 and C6/C7 levels. On or about December 5, 1989, Respondent performed a PCD on this patient for a grade II bulge at the C5/C6 level on the left.
Further MRI studies performed on this patient on or about October 30, 1990, indicated there was no change in the bulge at the C5/CB level as a result of Respondent's surgery. As a result, the Board's expert concluded that the surgery performed on this patient by the Respondent was not needed because the MRI's failed to show a condition requiring surgery and Respondent incorrectly interpreted them to indicate they did.
The evidence shows, however, that in her visits to Dr. Bonati, the patient complained of pain in an area associated with the 6th nerve root, and evidence of the emergency room visit she made refers to a diagnosis of possible 6th nerve root involvement. Respondent's medical records for this patient reflect that before he recommended surgery, he waited out a period of conservative non-surgical treatment which included physical therapy. He also had her undergo another MRI on November 17, 1989, before the surgery, which showed a bulge at C5/C6. Respondent believed this bulge could be creating all the symptoms being experienced by the patient. In light of this additional evidence, to which Petitioner fails to refer in its Proposed Findings of Fact, it cannot be reasonably be found that the evidence of record is clear and convincing that Respondent performed unnecessary surgery.
AS TO THE PATIENT R.L.
On or about May 1, 1990, R.L., a 36 year old male, was seen by Dr. Jeffrey S. Walker, a Board certified neurosurgeon for evaluation of neck and back injuries sustained in a then-recent motor vehicle accident. Dr. Walker had
this patient undergo an MRI which was interpreted by a Board certified radiologist as showing no large disc herniations and only minimal posterior bulging of the C4/C5 disc associated with degenerative disc disease. As a result of this test and interpretation, Dr. Walker diagnosed the patient as having severe cervical and lumbar strain with no evidence of radiculopathy or myelopathy. Radiculopathy is disease of the spinal nerve root, and myelopathy is a disturbance or disease of the spinal cord. Dr. Walker concluded that this patient's condition did not require surgery and recommended a conservative, non- surgical treatment.
Nonetheless, on June 25, 1990, this patient went to see Dr. Bonati complaining of persistent neck and back pain. On this visit, the patient showed Dr. Bonati the MRI taken for Dr. Walker on May 31, 1990. When Respondent reviewed this MRI he noted a bulging disc at C4/C5 and recommended the patient undergo a PCD at that level. Before any surgery was done, however, another MRI was done on June 26, 1990 which Respondent interpreted as showing a 1 mm posterior disc bulge at L4/L5 and a 2 mm bulge at L5/S1, and as a result, Respondent recommended a PLD also be done.
On July 12, 1990, Dr. Bonati performed a PCD on this patient at C4/C5 left, and on July 31, 1990 he also performed a PCD at C4/C5 right. Thereafter, on August 21, 1990, Respondent performed a PLF at L5/S1 on this patient. While the Board claims this was done to decompress the S1 nerve root, both the Board and Dr. Bonati indicate it is impossible to decompress the S1 nerve root by a foramenectomy at that level. The Respondent claims the procedure was done to remove the pressure on the L5 nerve root, and this was deemed possible by the testimony of Dr. Sherk. This would seem to be a more accurate description of what was done. In any case, Dr. Bonati also performed a PLD at L5/S1 right that same day in order to relieve the pressure on the S1 nerve root. In short, taken together, the evidence indicates that the surgery on the left was to relive pain on the left side and that on the right to relieve pain on the right side.
There is a discrepancy in Respondent's records relating to the above surgery wherein left side pain is indicated where right side pain was intended. A review of these records, however, reveals that the patient complained of pain on both sides from the very beginning and clearly traces the course of pain from the first visit through the surgeries.
The Board contends that Respondent failed to correctly interpret the MRIs done on this patient. It asserts these MRI's, when coupled with the patient's complaints, fail to indicate a need for surgical intervention and that Respondent's subsequent surgery performed on the patient was, therefore, inappropriate. This conclusion was stated by the Board's expert, Dr. Abram, who cited Respondent's own publications to the effect that a PLD is not indicated until a disc bulge is 4 mm or greater. Apparently Respondent had taken the position that a disc bulge of 3 mm or less does not merit surgery. It would appear Respondent's published indications also call for a certain amount of non- operative treatment to be provided, as well. It must be recognized, however, that there can be no hard and fast exclusionary rule regarding bulge size when determining whether surgery should be done. In the instant case, the records show that the patient continued to report pain which increased and diminished in cycles. The size guidelines are but one indicator of the need for surgery and Respondent cannot be faulted for doing surgery on a bulge smaller than that noted in his guidelines when other factors are present which indicate surgery is appropriate.
AS TO THE PATIENT E.M.
On or about April 4, 1991, Respondent saw patient E.M., a 51 year old male, who complained of pain in the lower back, the hip, groin and sciatic areas. Respondent had the patient undergo MRI studies which he interpreted as showing bulging discs at L4/L5, L5/S1, C4/C5 and C5/C6 levels. As a result of these indications, Respondent recommended the patient undergo both PLD and PCD procedures. Thereafter, on May 9, 1991, Respondent performed a PLF on this patient at L4/L5 left and a PLD at L4/L5 left. On June 19, 1991, he performed a PLF at L3/L4 left. He then performed a a PCD on this patient at C4/C5 left on July 1, 1991, and on July 18, 1991, performed a PLD at L5/S1 left. Finally, on August 6, 1991, he also performed a PCD at C5/C6 right on patient E.M.
The bulges at C4/C5 and C5/C6 were categorized by the Respondent as grade II bulges. Respondent has previously stated that grade II bulges are normal pathology for which surgical treatment is not indicated. He performed three PLD procedures on this patient on three separate occasions rather than performing them simultaneously, and he performed the two PCD procedures separately rather than performing them simultaneously. The Board claims that to do this was inappropriate and constituted exploitation of the patient for financial gain.
Dr. Gristina, however, indicates an alternative way of looking at the situation. He suggests that Dr. Bonati was following a plan to relieve the patient's symptoms utilizing the least invasive procedure available. Gristina suggests that Bonati's plan was to take the relief step by step, doing only so much surgery as was anticipated by him to be necessary to relieve pain. That a procedure was needed in each of five separate locations is unfortunate but not clearly shown by the Petitioner's evidence to be unnecessary. Petitioner must present evidence to show clearly that Respondent's actions were inappropriate. Petitioner's expert opinion must be considered, however, in light of the expert testimony to the contrary.
The Board also notes that whereas this patient's medical records indicate the first procedure to be performed on May 9, 1991 was the PLD at L5/S1, in reality the initial PLD was performed at the L4/L5 level and there is no indication in the record as to why this was done. It also contends that Respondent attributed this patient's continued pain in the right leg to the L3/L4 level, and the performance of a PLD at that level without further diagnostic studies was a failure to practice medicine within standards. Dr. Abram also concluded that in light of the above, the Respondent's medical records for this patient, in failing to reflect the justification and appropriateness of his treatment of the patient, were inadequate.
It would again appear that Petitioner has not given a complete reading to Respondent's medical records for this patient. His notes regarding the visits the patient made to the office reveal the patient was complaining of pain in the neck, shoulder and arms on both sides and indicate Respondent's concern that the patient might need surgery at L4/L5 as well as at L5/S1, and consent forms were obtained from the patient relating to both areas.
An additional claim of Respondent's misconduct is made in regard to the Respondent's failure to do additional diagnostic studies before performing the PLD at L3/L4. However, Respondent contends that, contra to the importance placed on ancillary tests, he considers clinical examination of the patient and the patient's history as more significant. This position would appear to be supported by the testimony of Dr. Hopkins who opined that where, after a surgery
has been done, if the patient is able to describe his or her condition, and nothing happened in the interim to cause the doctor to suspect any other problems, he would proceed without subjecting the patient to additional diagnostic procedures. All matters being considered, this would appear to be the more conservative approach.
AS TO THE PATIENT P.H.
Respondent first saw Patient P.H. in January, 1989 at which time he ordered an MRI be done which was interpreted as showing disc degeneration at L5/S1. When this was considered along with the patient's history, going back to 1970, of two disc removals, three spinal fusions and a laminectomy without relief, Respondent concluded a less conservative approach was demanded. Thereafter, on January 30, 1989, Respondent performed both a PLD and a PLF on this patient at L3/L4. No evidence was presented to clarify the apparent level discrepancy.
The medical records indicate that after this surgery, Respondent prescribed Keflex, an antibiotic, and Colchicine, a gout treatment, for the patient. According to Dr. Abram, neither medication is justified in the medical records. The use of an antibiotic after surgery is not at all unusual nor inappropriate, however, especially in light of the fact that the surgery was done on an outpatient basis and the patient did not remain in the hospital, under observation, for a period of recuperation after the procedure. As to the Colchicine, a careful examination of the records pertaining to this patient reveals that a prior administration of the substance was indicated, and even Dr. Abram admitted that this drug could properly be used to treat back pain. The use of neither substance, therefore, was inappropriate.
One year later, the patient again came to Respondent complaining of foot paralysis, and on February 1, 1990, Respondent performed a PLD on the patient at L4/L5. Twenty days later, on February 20, 1990, Respondent performed a repeat PLD on the patient at L4/L5. In the interim between the February 1 and February 20 procedures, notwithstanding Petitioner's contention that Respondent did not perform any diagnostic studies to determine whether further surgical intervention was necessary, the records indicate Respondent had clinical testing of the patient done on February 7, 1990, and a Physical Assessment Test was conducted which showed several anomalies which Respondent correlated to the MRI findings.
Petitioner also claims that surgery at the L4/L5 disc space cannot treat the L5 nerve root compression that Respondent's tests showed in this patient. Both Dr. Bonati and Dr. Gristina agree, however, that the surgeon can reach the L5 nerve root from the L4/L5 disc space. This opinion by Dr. Gristina would apply equally as well to arthroscopic surgery as practiced by Respondent as to the more classical and conservative open procedures more widely done.
Respondent billed the patient for all three surgeries performed. Evidence introduced at hearing, in the form of the opinion testimony of Dr. Abram, would seem to indicate surgery was not appropriate for this condition, and that the performing of the three surgeries was exploitation of the patient for financial gain. He also is of the opinion that the medical records fail to justify the course of treatment the Respondent rendered this patient.
However, the evidence of record tends to indicate that a second surgery at a place where surgery has already been done is not unusual. Symptoms can recur and problems, thought to be resolved, can again surface. The evidence
indicates that this patient had very little relief from discomfort and, in fact, the symptoms persisted for three weeks after the initial surgery. When results obtained from surgery do not produce an expected change in the patient's symptomology, Dr. Gristina concludes it is logical to again operate at any time after a procedure has been done.
AS TO THE PATIENT M.M.
Respondent first saw patient M.M. in July 1990 for symptoms of a back injury which he attributed to the S/1 nerve root and which had been present for over one year. The patient history for this patient reveals that she had approximately fifteen months without relief from pain before seeing Respondent and indicate that after Respondent had treated her for a week to ten days, the symptoms changed which caused Respondent to then attribute the cause to the L5 nerve root. An MRI showed a 4 mm bulge at L4/L5, and on September 6, 1990, Respondent performed both a PLD and a PLF at L4/L5.
More than six months later, on May 7, 1991, M.M. went to Dr. Zubillaga, a Board certified neurologist, for treatment of pain running from the head to the sacrum. Dr. Zubillage took a complete patient history and reviewed the MRIs which had been taken by or for the Respondent. His examination indicated to him that no surgical intervention was indicated, and he recommended a more conservative treatment including stretching exercises and physical therapy.
Dr. Abram concluded that Respondent's medical records for this patient contain inconsistencies in the examination and diagnostic tests. The patient's symptoms and the findings of diagnostic imaging should match up before the patient is offered surgical treatment. In the instant case, the records indicate a strength deficit of 26 percent at S1 and an L5 deficit of 16 percent, yet the treatment is directed against the L5 nerve root, even though the initial impression is that it was the S1 nerve root that was compressed, and Dr. Abram is of the opinion that is below the acceptable standard of care. Unexplained, it well may be.
AS TO THE PATIENT D.R.
On or about July 18, 1990, Dr. Bonati performed both a PLD and a PLF at L5/S1 on this patient for back and leg pain but the patient failed to improve after the surgery. Thereafter, on October 24, 1990, Respondent performed both a PLD and a PLF on the patient at L4/L5. Still later, on March 13, 1991, the patient saw Dr. Thomas Freeman, a Board certified neurological surgeon, who reviewed the patient's medical records, the discogram and the two MRI scans which had been done by Respondent both before and after the July 18, 1990 surgery, none of which showed an extruded disc. By the same token, a previous MRI done by a prior treating physician, Dr. Feldman, failed to disclose it as well. According to Dr. Freeman, the two MRI's done by Respondent were essentially identical with no change in the patient's condition following the surgery. Based on his examination of the patient, Dr. Freeman diagnosed the patient as having a large extruded disc at L5/S1 which, he claims, was shown in the MRI's taken by the Respondent. The evidence is in conflict on that point, however.
It is Dr. Freeman's professional opinion that extruded discs are normally very difficult to remove by a percutaneous procedure. In fact, Respondent's own publications indicate that a percutaneous procedure is contraindicated in the case of an extruded disc. As a result of his evaluation,
Dr. Freeman subsequently performed open back surgery on this patient removing the discs at L4/L5 left and at L5/S1 left and right. It is Dr. Abram's position that Respondent's failure to do an open procedure instead of a percutaneous procedure in this case, especially after the first procedure was unsuccessful, was below acceptable standard.
It would appear, however, that none of the physicians who saw this patient were able to make a positive determination that there was an extruded disc. There is a difference between an extruded disc which is still in contact with the annulus and one which has broken free from the annulus and extruded through the posterior longitudinal ligament to enter the spinal canal. It is this latter situation which Respondent's writings denote as contraindication to a percutaneous procedure. The disc had not extruded in the instant case and, therefore, a percutaneous procedure was not necessarily contraindicated.
Dr. Abram also asserts that Respondent's medical records for this patient contain a discrepancy between the admissions form and the general rule regarding the gravity and location of the patient's pain, which, he claims, is considered below standard. In fact, the admission form is set up so that the patient can describe the current severity of the leg pain and the back pain independently of each other. It does not attempt to compare them.
AS TO THE PATIENT L.Q.
Sometime between January and April, 1990, the patient, L.Q. saw Respondent complaining of pain in the neck and arm. Respondent took an MRI of the patient which indicated a grade I impression of the thecal space at both the C4/C5 and the C5/C6 levels. Even though Respondent's own publications regarding the PCD suggest that a grade I impression does not require surgery, Respondent recommended the patient undergo a PCD at C4/C5.
Before agreeing to the surgery, however, on April 30, 1990, prior to what was described as the onset of significant pain compromising the 5th nerve root, the patient went to see Dr. Michael Slomka, a Board certified orthopedic surgeon who, without an MRI or CT scan, upon examination, found a normal neurological evaluation and a normal cervical spine x-ray. Based on his findings Dr. Slomka saw no basis for surgery and recommended a program of activity and rehabilitation for the patient. Thereafter, however, the patient returned to Respondent on May 14, 1990 and Respondent did a PCD at C4/C5.
While Petitioner claims there was no justification shown for the surgery completed in this case, there is evidence in the patient records that the patient underwent an extended period of constant pain in the shoulder, injections into the shoulder by another physician prior to the visit to Respondent, continued medication for the discomfort claimed, and other symptoms and discomfort in an area consistent with the diagnosis, which were supported by a physical assessment test and consistent with the MRI. These factors may well justify surgery when all else has failed.
The Petitioner asserts that Respondent's medical records do not reflect justification for the surgical intervention, but the above information disputes that conclusion.
AS TO THE PATIENT R.H.
This patient was seen by Respondent several times between July, 1991 and April, 1992 for treatment for neck and shoulder pain. An MRI of the patient
ordered by the Respondent was interpreted by him as showing a grade I impression at both C3/C4 and C4/C5, and a grade II impression at C5/C6. On December 4, 1991. Respondent did a PCD on this patient at C5/C6, but the medical records maintained by Respondent on the patient show no improvement following the surgery. The Respondent's medical records relating to this surgery do not reflect he had any discussion with the patient before surgery about the risks or benefits of surgery, the anticipated outcome or alternative treatment options.
On May 30, 1992, the patient went to see Dr. Michael Piazza, a Board certified orthopedic surgeon who also took an MRI of the patient. This scan revealed very mild degenerative disc disease at C5/C6 without any evidence of disc herniation or other operable lesion. He could see no indication for or reason to do surgery on the patient. The patient was 54 years old when she was seen by Dr. Piazza. The doctor indicated that approximately 90 percent of the adult population have as much arthritis in the neck by that age as does this patient. Therefore, he recommended non-operative treatment, including therapy, and the patient's condition improved markedly with this regimen.
Here again the Respondent contends that Petitioner draws a misleading conclusion from the evidence and attempts to minimize the severity of the patient's long-term complaints of pain, failed conservative treatment and disc bulge which is attributed to arthritis. Respondent also contends that the use of a minimally invasive percutaneous procedure was appropriate in light of the circumstances, especially in light of the fact that there was a four month hiatus between the cited entries in the medical records. These contentions by Respondent are supported by the testimony of his experts.
Respondent's records regarding this patient, are less than appropriate, however. They reflect the patient had full range of shoulder motion, albeit with pain, but also contain a diagnosis of frozen shoulder and capsulitis. This would indicate a marked reduction in the patient's range of shoulder motion. The records also indicate a degenerative labral tear in the biceps tendon, but there was no such tear indicated on the MRI. This tear was, however, located by Respondent through a diagnostic arthroscopy. In Dr. Abram's opinion, these inconsistencies rendered the records below acceptable standard.
AS TO THE PATIENT O.J.P.
This patient was seen at the Respondent's clinic, by Dr. Merken, on April 14, 1992, for an evaluation of the patient's strength related to the neck. The doctor's opinion was that the patient's neck strength was normal though, even as Dr. Abram admits, he found abnormalities of the neck resulting in painful flexion, lateralization and extension. Several days later, the patient underwent several MRIs which covered the left shoulder and the cervical and lumbar spine in which Respondent saw bulges of 2 mm, 3 mm, and 4 mm in the lumbar spine. When, on May 12, 1992, the Respondent discussed the results of the MRI's with the patient he noted a significant weakness in the patient which had not been noted by Dr. Merken earlier. Even though the patient's medical record does not reflect any long-standing weakness or participation in an extensive rehabilitative program, Respondent nonetheless recommended the patient undergo a PCD at C6/C7 left and a PLD at L4/L5 left. The surgery was not done, however.
Instead, on July 16, 1992, the patient went to see Dr. Glen Barden, a Board certified orthopedic surgeon, because of persisting neck and back pain. Dr. Barden did an examination of the patient and reviewed Respondent's medical records on her. Dr. Barden's diagnosis was that the patient exhibited mild
symptoms of disc disease without neurological deficits. He concluded that surgery was not needed or appropriate for the condition at that time but recognized that surgical intervention to the neck might be required. In fact, Dr. Barden's records show he found " cervical intervertebral disc disease, moderately severe, involving C4-5, C5-6. C6-7 and C7-T1, as well as degenerative lumbar disc disease", among other problems, all of which, Dr. Barden admits, can cause pain and restriction of motion without a neurological deficit. As such, surgery can be justified even where there is no neurological deficit.
Notwithstanding Petitioner claims the medical records kept by Respondent on this patient did not reflect any long-standing weakness or conservative care, the patient history clearly reflects numerous complaints of pain and limitations on movement following a 1978 car accident. In addition, the records reflect the patient had been taking medication and received chiropractic treatment in addition to the physical therapy prescribed by Respondent prior to surgery.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
The Board of Medicine seeks to discipline the Respondent's license as a physician in this state alleging that he is guilty of several violations of the provisions of Section 458.331(1), Florida Statutes. Specifically, the Board alleges that Respondent failed to keep written medical records justifying the course of treatment he administered to the nine patients in issue; exercised influence on some of these patients in such a manner as to exploit them for financial gain; and failed to fully advise the patients of the experimental nature of the surgery he proposed to perform on them, thereafter securing from each an informed consent to the experimental surgery.
Disciplinary action against a professional license, such as here, is penal in nature, State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973). This being so, the burden is on the Petitioner to prove the alleged violations by clear and convincing evidence, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Both at hearing and in their scholarly and well written post-hearing submittals, counsel for the Board have taken the position that its evidence of Respondent's misconduct as alleged is clear and convincing. In reality, that conclusion is not so easily drawn.
With regard to the experimental nature of the percutaneous procedures alleged herein, the Petitioner relies heavily on the argument that Dr. Gristina, Dr. Hopkins and Dr. Sherk, though admittedly experts in the field of orthopedic surgery, do not have the current knowledge and experience with the procedures in controversy to be able to conclusively establish that they are not experimental. This is primarily because the prpocedures are, for the most part, utilized outside the United States and not frequently or widely used within this country's medical community, except for the percutaneous lumbar discectomy. Petitioner contends there is little available information from United States medical sources available to evaluate on the subject. In that regard, Petitioner contends that Florida does not accept a "world standard" by which to measure a procedure's acceptance in the medical community of Florida or of the United States.
Petitioner's expert, Dr. Abram, a highly skilled orthopedic surgeon with a practice heavily in surgery of the spine, concluded that, after expending more than 200 hours in researching the medical literature, he was unable to find any which supported the procedures' general use.
It is clear that the procedures in question are far from being routine practice of orthopedic surgeons in Florida or elsewhere in the United States. Much of the available literature, however, which acknowledges that percutaneous discectomy procedures may produce a beneficial effect in patient, does not make clear what causes this beneficial effect. This, however, does not make the procedure experimental. It is clear that while not in widespread use, and while the technical details of the procedures may differ, the percutaneous discectomies and foramenotomies are not experimental but,through the use of new concepts, new equipment or new procedures, they are innovations on established procedures. The percutaneous penetration of the body, for example, is in widespread use in arthroscopic surgery on the knee and other joints, and according to Dr. Sherk, the percutaneous discectomy and foraminotomy are extensions of the techniques already used in surgery on the lumbar spine, and are coming to be the same in the cervical spine. There is little doubt the procedures have beneficial effects and have not, as yet, been shown to be harmful if properly done. It is, therefore, not logical to conclude that because the reason for those beneficial effects is still a matter of medical debate, the procedures should be categorized as experimental.
The Petitioner has not established, by clear and convincing evidence, that the procedures in issue are experimental. Having concluded that the procedures are not experimental, there is no requirement that a more thorough consent process be used.
With regard to all nine patients referenced in the specific counts of the two Administrative Complaints, Petitioner alleges that it has proven, by clear and convincing evidence, that Respondent evidenced gross or repeated malpractice or the failure to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, in violation of Section 458.331 (1)(t), Florida Statutes.
As was pointed out, Respondent's treatment of nine separate patients has been described by Petitioner as allegedly below standard. In its initial Proposed Recommended Order, Petitioner made certain Proposed Findings of Fact which, it claims, established Respondent's deficiencies as to each patient alleged. Respondent's counsel has submitted matter which, they feel, exculpates Respondent. An analysis of each allegation is necessary in order to understand the allegations and the rebuttals thereto. There were nine patients involved in the two Administrative Complaints. They will be treated separately.
As to Patient M.A., (Patient #1, Complaint 94-1866), the Petitioner claims that Respondent, in performing surgery where, it is alleged, none was necessary, practiced medicine below the standard of care, in violation of Section 458.331(1)(t), Florida Statutes, and failed to keep written medical records justifying the course of treatment of the patient, in violation of Section 458.331(1)(m), Florida Statutes. It having been found, in the Findings of Fact, supra, herein that Petitioner's evidence does not clearly and convincingly establish that there was no need for surgery, Respondent cannot be found guilty of that allegation. Since the procedure was appropriate, the medical records to which it relates are appropriate as well.
Petitioner also alleges that Respondent exploited this patient for financial gain by billing the patient for surgery which was not necessary, in violation of Section 458.331(1)(n), Florida Statutes. It having been determined that the surgery was not shown to be inappropriate, it cannot, by the same token, be said the procedure or the billing for that surgery was either exploitation or inappropriate.
As to patient R.L., (Patient 2, Complaint 94-1866), Petitioner again alleges that Respondent failed to perform up to accepted medical standards where he performed surgery which was not medically indicated, in violation of Section 458.331(1)(t), and failed to keep written medical records justifying the course of treatment of his patient, in violation of Section 458.331(1)(m), Florida Statutes. Here the evidence indicates the patient had pain on both sides and surgery was subsequently done on both sides to alleviate it. Notwithstanding Respondent's prior published position that a 3 mm bulge normally does not justify surgery, that is not a hard and fast rule, and here, with these other factors being present, it cannot be said, and Petitioner did not show by clear and convincing evidence, that Respondent's decision to do surgery was improper or below standards. By the same token the records which relate to the decision to do the surgery are correct and appropriate as well.
Again Petitioner claims that Respondent exploited this patient for his own financial gain by doing unnecessary surgery, in violation of Section 458.331(1)(n), Florida Statutes. As was determined in the case of Patient #1, supra, the surgery was not shown to be inappropriate, and, therefore, the billing for that surgery was neither exploitation not inappropriate.
As to Patient E.M., (Patient 3, Complaint 94-1866), Petitioner contends that by performing five separate surgical procedures on this patient rather than combining the cervical procedures and the lumbar procedures into two surgeries, Respondent is guilty of practice below standard, in violation of Section 458.331(1)(t), Florida Statutes, and that he exercised improper influence on his patient for financial gain, in violation of Section 458.331(1)(n).
At first blush it would appear Petitioner's allegations have substance. Respondent performed six separate procedures on the same patient over a period of five days. Though Petitioner contends these repeated surgeries were excessive, Dr. Grisham indicated that the regimen followed by Respondent in this instance was conservative and appropriate because Respondent was trying step by step surgery to relieve the patient's pain without unnecessary invasion. With regard to the Respondent's records for this patient, it would appear Petitioner's review of them was selective. Taken as a whole, in the opinion of the Respondent's experts, they are not inadequate. Under the circumstances, it cannot be said that Petitioner has shown, by clear and convincing evidence, that Respondent performed below acceptable standards regarding this patient, that he manipulated the treatment of the patient for his financial gain, or that the records were inadequate.
In regard to P.H., (Patient 1, Complaint 94-1867), the Petitioner alleges that Respondent's performing surgery without first pursuing a more conservative, non-surgical treatment on this patient was below standards and in violation of Section 458.331(1)(t), Florida Statutes, and also that his failure to keep appropriate written medical records justifying the surgery performed, was a violation of Section 458.331(1)(m), Florida Statutes.
Petitioner overlooks the fact that in the interim between the two procedures done in February, 1990, clinical testing of the patient was done on February 7, 1990 and a physical assessment test was done which supported the findings made from reading the MRI. While Petitioner claims that surgery at L4/L5 could not reach the L5 nerve root, there is substantial evidence that it can, and there is also evidence in the record to indicate that a second surgery at a place where surgery has already been done is not at all uncommon and is not necessarily indicative of poor practice. Here, the evidence showed that the second surgery was necessary to relieve the patient's pain, and it cannot reasonably be concluded that Petitioner presented clear and convincing evidence of Respondent misconduct with regard to this patient.
As to M.M., (Patient 2, Complaint 94-1867), Petitioner asserts that Respondent's failure to properly interpret the MRI's done on this patient, and his subsequent performance of surgery on her which was not medically indicated is practice below standard in violation of Section 458.331(1)(t), Florida Statutes. Petitioner further asserts that the Respondent's written medical records relating to this patient did not justify his course of treatment for this patient, in violation of Section 458.331(1)(m), Florida Statutes.
The evidence of record reflects that when the patient first came to see him, Respondent took a complete patient history regarding the onset of the condition. Her patient history shows she was treated by a chiropractor without success, and the Respondent's initial office examination, coupled with the MRI which showed a 4 mm bulge at the L4/L5 level, clearly indicated a condition needing treatment. Respondent chose to do surgery. Neither Dr. Zubillaga nor Dr. Abram felt this was within proper medical standards of treatment but both Dr. Hopkins and Dr. Gristina did, a situation of equipoise under the circumstances. The only reasonable conclusion to be drawn from the evidence presented here is that Petitioner failed to establish Respondent's misconduct by clear and convincing evidence in this case.
A different question exists with regard to the medical records. In this case, it would appear that, from the records, treatment should have been directed toward the S1 deficit yet was implemented at L5 instead. There is little evidence in the record to support a position either way under these circumstances save the opinion rendered by Dr. Abram that to do so is below standard. It would appear, therefore, that the records are deficient in this respect as to this patient.
With regard to D.R., (Patient 3, Complaint 94-1867), Petitioner contends that Respondent's performing two percutaneous surgeries on the patient without removing a large extruded disc at L4/L5, which resulted in the patient having to seek further treatment from a subsequent providers constituted treatment below standard in violation of Section 458.331(1)(t), Florida Statutes, and that his written medical records with regard to this patient fail to justify the treatment rendered, in violation of Section 458.331(1)(m), Florida Statutes.
The evidence introduced at the hearing was conflicting as to where the actual un-removed bulge was located. Dr. Freeman, who treated this patient after Respondent, surgically removed material at L4/L5 left and at L5/S1 right. Dr. Abram's testimony seemed to identify as misconduct the use of the percutaneous procedure by the Respondent rather than an open surgery. In any event, as was noted in the Findings of Fact regarding this patient, none of the physicians who saw the patient were able to positively determine there was an extruded disc. Taken together, the state of the evidence with regard to this
allegation makes it impossible to conclude that the evidence presented by the Petitioner clearly and convincingly establishes the misconduct alleged in either this Count or as regards the medical records relating to this patient.
Turning to L. Q., (Patient 4, Complaint 94-1867), Petitioner alleges that Respondent's surgery when no surgery was needed constitutes treatment below standard, in violation of Section 458.331(1)(t), Florida Statutes, and that his written medical records fail to show justification for the treatment rendered, in violation of Section 458.331(1)(m), Florida Statutes.
What Petitioner's evidence shows is that two physicians held differing opinions as to what treatment was required for this patient. Yet even Dr. Slomka, who, it must be noted, saw the patient in the capacity of an independent medical examiner for an insurance company and not as a treating physician and did neither an MRI or a CT scan on the patient, admitted that the patient continued to suffer considerable pain without relief and said she was going to see another physician to seek relief from her pain. What is clear and convincing here is not that Respondent mistreated the patient or provided care below acceptable standards, but that this was a patient who was in pain and discomfort and who saw Respondent for relief of her symptoms. That this treatment might not have given the relief sought is not evidence that it was inappropriate. By the same token, the evidence is insufficient to establish a records violation.
Again, as to R.H., (Patient 5, Complaint 94-1867), Petitioner alleges care below standards, (Section 458.331(1)(t)), and unsatisfactory medical records, (Section 458.331(1)(m), Florida Statutes, claiming that Respondent performed surgery without first utilizing more conservative, non-surgical methods of treatment.
The evidence shows that before seeing Dr. Piazza, this patient first saw the Respondent who did surgery which did not result in improvement of the problem. When Dr. Piazza examined the patient he professed to see no condition in the patient which could have been improved by surgery, and observed that this patient had no more arthritis in the neck than 90 percent of the population her age.
Respondent, on the other hand, insists that this patient had multiple levels of problems and that she left his care before he had an opportunity to complete his proposed course of treatment. That her pain and discomfort did not abate as a result of the first surgery he did, does not necessarily establish that the surgery was unnecessary. It is common for patients to seek a second opinion on medical treatment which differs from that already given. This does not mean that the first opinion is wrong. In this case, Dr. Bonati indicated a strong conviction that his treatment of this patient was on course and appropriate to her condition. That Dr. Piazza did not think so, and that Dr. Abrams, who did not see the patient but who made a cold evaluation of the records did not think so, is probative but not persuasive. Together, their testimony does not constitute clear and convincing evidence of Respondent misconduct.
A review of the records, however, shows detailed notations as to the patient's condition which appear inconsistent with each other and contain matter inconsistent with his other diagnostic reports. Dr. Abrams' opinion that the records are inadequate would appear well founded.
The last patient to whom Petitioner's allegations relate is O.J.P., (Patient 6, Complaint 94-1867). Petitioner contends that Respondent's recommendation of percutaneous surgery to this patient, rather than a more conservative, non-surgical course of treatment, was below standards and a violation of Section 458.331(1)(t), Florida Statutes. Petitioner also alleges Respondent exercised influence on the patient in such a manner as to exploit the patient for financial gain., in violation of Section 458.331(1)(n), Florida Statutes.
It must be noted that Respondent did no more than diagnostic studies on the patient and did not render any treatment. As was her prerogative, the patient sought a second opinion before agreeing to Respondent's proposals, and it was this second physician whose opinion that surgery was not needed which prompted the allegations in issue. It should be noted, however, that even this second physician admitted that the condition he found the patient to be suffering can cause pain and restriction of motion without indicating a neurological deficit, and this can justify surgery. We are not called upon to determine if surgery would have corrected the patient's problem in this case. What we must determine here is whether Respondent's recommendation for surgery was treatment below standard. Petitioner has not presented clear and convincing evidence that it was. By the same token, Petitioner has not shown by clear and convincing evidence, in light of that determination, that Respondent's proposed course of treatment was not an appropriate medical recommendation but instead was no more than a ploy designed to exploit the patient for his personal gain.
Rule 59R-8.001, F.A.C., provides a range of penalties for violations of the provisions of Section 458.331(1), Florida Statutes. It authorizes, in the assessment process of an appropriate penalty when misconduct has been shown, consideration of factors both in aggravation and mitigation. These may include:
The severity of the offense;
The danger to the public;
The number of repetitions of the offense;
The number of previous disciplinary cases;
The length of time the certificate holder has practiced.
Respondent has been licensed to practice medicine in this state of an extended period. In the instant case, from an extended litany of offenses charged, the evidence clearly shows Respondent guilty of only two incidents where his patient records fall below accepted standards. He has not been shown to have been guilty of medical practice below standard. He has not been proven guilty of exploiting his patients for personal gain. Though he has been before the Board twice previously, his record does not show continuing serious misconduct. The offenses shown here are not of a serious nature.
The Board seeks to suspend Respondent's license for one year, to fine him $20,000.00, to place his license on probation for three years, and to reprimand his license. In light of the offenses established, this is excessive.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:
RECOMMENDED that the Administrative Complaints in DOAH Cases 94-1866 and 94-1867, except for Counts Six and Fifteen of Complaint 94-1867, of which
Respondent, ALFRED O. BONATI, should be found guilty, be dismissed, and that his license be reprimanded.
RECOMMENDED this 21st day of August, 1995, in Tallahassee, Florida.
ARNOLD H. POLLOCK, 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 21st day of August, 1995.
APPENDIX TO RECOMMENDED ORDER IN CASES NOS. 94-1866 AND 94-1867
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
FOR THE PETITIONER:
& 2. Accepted and incorporated herein.
3. - 7. Accepted and incorporated herein with the addition, as to #7, of the phrase, "in the U.S."
9. | - | 8. Accepted and incorporated herein. 11. Accepted and incorporated herein. |
12. | & | 13. Accepted and incorporated herein. |
14. | & | 15. Accepted. |
16. | & | 17. Accepted. |
18. | - | 21. Accepted. |
22. | - | 24. Accepted and incorporated herein. |
25. Accepted. | ||
26. Rejected as not proven. | ||
27. | - | 29. Accepted. |
30. | - | 35. Accepted and incorporated herein. |
36. | - | 38. Rejected as not proven by clear and convincing |
evidence. | ||
39. Rejected except for last sentence which is accepted. | ||
40. Accepted. | ||
41. | & | 42. Rejected as not proven. |
43. | - | 53. Accepted and incorporated herein. |
54. Accepted that surgery was done, but not for the | ||
purpose stated. | ||
55. Accepted and incorporated herein. | ||
56. Accepted and incorporated herein. | ||
57. | - | 62. Rejected as not proven. |
63. Rejected as not proven. | ||
64. Accepted as to what record states, but rejected as |
to the lack of a complaint on the right side, as contra to the weight of the evidence.
65. Rejected as not proven.
66. | - | 68. | Accepted | but considered of little | probative value. | |
69. | Accepted. | |||||
70. | & | 71. | Rejected | as not proven. | ||
72. | & | 73. | Accepted | and incorporated herein. | ||
74. | & | 75. | Accepted | and incorporated herein. | ||
76. | - | 80. | Accepted | and incorporated herein. | ||
81. | - | 84. | Rejected | as not proven. | ||
85. | Accepted. | |||||
86. | - | 92. | Rejected | as not proven. | ||
93. | Accepted. | |||||
94. | - | 97. | Rejected | as not proven, and 97 is | duplicative of | |
84 and 84. | ||||||
98. | - | 104. | Accepted | and incorporated | herein. | |
105. | - | 109. | Rejected | as not proven. | ||
110. | Accepted | and incorporated | herein. | |||
111. | Rejected | as unproven. | ||||
112. | & | 113. | Accepted | and incorporated | herein. | |
114. | Rejected | as unproven. | ||||
115. | - | 117. | Accepted. | |||
118. | & | 119. | Rejected | as unproven. | ||
120. | Accepted. | |||||
121. | Rejected | as unproven. | ||||
122. | - | 128. | Accepted | and incorporated | herein. | |
129. | - | 132. | Rejected | as unproven. | ||
133. | Accepted. | |||||
134. | & | 135. | Rejected | as unproven. | ||
136. | - | 148. | Accepted | and incorporated | herein. | |
149. | - | 152. | Rejected | as unproven. | ||
153. | - | 159. | Accepted, but 158 is duplicative of | 146 | ||
160. | & | 161. | Rejected as unproven. | |||
162. | - | 168. | Accepted and incorporated herein. | |||
169. | Rejected as unproven. | |||||
170. | Accepted and incorporated herein. | |||||
171. | - | 175. | Rejected as unproven. | |||
176. | Accepted. | |||||
177. | & | 178. | Rejected as unproven. | |||
179. | - | 191. | Accepted and incorporated herein. | |||
192. | - | 194. | Rejected as unproven. | |||
195. | Accepted. | |||||
196. | & | 197. | Rejected as unproven. | |||
198. | - | 208. | Accepted and incorporated herein. | |||
209. | - | 211. | Rejected as unproven. | |||
212. | Accepted. | |||||
213. | Rejected as unproven. | |||||
FOR THE RESPONDENT:
1. - 3. Accepted and incorporated herein.
4. & 5. Accepted and incorporated herein.
& 7. Accepted and incorporated herein.
Accepted and incorporated herein.
& 10. Accepted.
11. & 12. Accepted.
- 15. Accepted.
16. | - | 18. | Accepted and incorporated herein. | |
19. | & | 20. | Accepted. | |
21. | - | 23. | Accepted and incorporated herein. | |
24. | Accepted. | |||
25. | First sentence accepted. Second sentence not | |||
proven. | ||||
26. | & | 27. | Accepted. | |
28. | Accepted and incorporated herein. | |||
29. | Accepted. | |||
30. | - | 32. | Accepted. | |
33. | Accepted. | |||
34. | & | 35. | Accepted since the contrary was not proven. | |
36. | Accepted as represented. | |||
37. | Accepted since the contrary was not proven. | |||
38. | Accepted that the treatment and records were | within | ||
standards. |
COPIES FURNISHED:
Britt Thomas, Esquire Natalie Duguid, Esquire Agency for Health Care
Administration
1940 North Monroe Street Tallahassee, Florida 32399-0792
Jonathan W. Lubell, Esquire 750 Lexington Avenue
New York, New York 10022
Salvatore A. Carpino, Esquire 8001 North Dale Mabry Highway Suite 301-A
Tampa, Florida 33614
Jerome W. Hoffman General Counsel
Agency for health Care Administration
2727 Mahan Drive
Tallahassee, Florida 32309
Dr. Marm Harris Executive Director Board of Medicine
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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.
================================================================= AGENCY REMAND
=================================================================
STATE OF FLORIDA
AGENCY FOR HEALTH CARE ADMINISTRATION BOARD OF MEDICINE
AGENCY FOR HEALTH CARE
ADMINISTRATION, AHCA CASE NOS. 91-00515, 91-08973,
92-00771, 92-08282,
Petitioner, 92-09384, 92-10110,
vs. 92-06802, 92-07703,
92-07436
ALFRED O. BONATI, M.D. DOAH CASE NOS. 94-1866, 94-1867
LICENSE NO. 0038324
Respondent.
/
ORDER
THIS MATTER was heard by the Board of Medicine (hereinafter Board) pursuant to Section 120.57(1)(b)10., Florida Statutes, on October 8,1995, in Ft.
Lauderdale, Florida, for consideration of the Hearing Officer's Recommended Order, Petitioner's Exceptions, Respondent's Response to Petitioner's Exceptions, Respondent's Exceptions, and Petitioner's Response to Respondent's Exceptions. (Copies of which are attached hereto as Exhibits A, B, C, D, and E) in the case of Agency for Health Care Administration v. Alfred O. Bonati. At the hearing before the Board, Petitioner was represented by Britt Thomas, Senior Attorney. Respondent was represented by Cynthia Tunnicliff, Attorney at Law, and Jonathan W. Lubell. Upon consideration of the Hearing Officer's Recommended Order after review of the complete record, including the exceptions and responses, and having been otherwise fully advised in the premises, the Board makes the following rulings.
RULINGS ON PETITIONER'S EXCEPTIONS
Petitioner's Exception Number 1 is GRANTED for the reasons in support thereof written and stated on the record. Respondent agrees that the Petitioner's Exhibits 6 and 7 were admitted into evidence and that concession is supported by the record at T-727.
Petitioner's Exception Number 2 points out, and the Board finds, that the Hearing Officer's Finding of Fact 5 is contradictory to the Hearing Officer's rulings on Petitioner's Proposed Findings of Fact 6 and 25. Based on the authority of Section 120.57(1)(b)10., Florida Statutes, the Board finds that this contradiction in rulings fails to comport with the essential requirements of law. Accordingly, the Board remands this case to the Hearing officer for clarification on this issue.
Petitioner's Exception Number 3 is REJECTED; there is competent substantial evidence to support the finding of fact at issue.
Petitioner's Exception Number 4 is GRANTED to the extent that Respondent agrees, and the Board finds, that the nucleotome is a device, not a procedure. The rest of this Exception is REJECTED for the reasons written and stated on the record.
Petitioner's Exception Number 5 is REJECTED for the reasons written and stated on the record.
The first part of Petitioner's Exception Number 6 regarding Dr. Hopkins' qualifications is GRANTED, on the basis that there is no competent substantial evidence to support the finding of fact at issue. As to the last sentence, the Board finds that the Hearing Officer's Finding of Fact 10 is contradictory to his ruling on Petitioner's Proposed Finding of Fact 18. Accordingly, on the basis set forth in Number 2 above, the Board remands this case to the Hearing Officer for clarification on this issue.
Petitioner's Exception Number 7 points out, and the Board finds, that the Hearing Officer's Finding of Fact 11 is contradictory to the Hearing Officer's rulings on Petitioner's Proposed Findings of Fact 6, 25, 23, AND 24. Based on the authority of Section 120.57(1)(b)10., Florida Statutes, the Board finds that this contradiction in rulings fails to comport with the essential requirements of law. Accordingly, the Board remands this case to the Hearing Officer for clarification on this issue
Petitioner's Exception Number 8 is REJECTED for the reasons stated on the record and written by Respondent.
Petitioner's Exception Number 9 is REJECTED for the reasons stated on the record and written by Respondent. The test to be applied is not whether there is competent substantial evidence to support a proposed finding of fact, but whether there is competent substantial evidence to support the Hearing Officer's Findings of Fact.
Petitioner's Exception Number 10 points out, and the Board finds, that the Hearing Officer's Finding of Fact 4 is contradictory to the Hearing Officer's ruling on Petitioner's Proposed Finding of Fact 39. Based on the authority of Section 120.57(1)(b)10., Florida Statutes, the Board finds that this contradiction in rulings fails to comport with the essential requirements of law. Accordingly, the Board remands this case to the Hearing officer for clarification on this issue.
Petitioner's Exception Number 11 is REJECTED for the reasons written and stated on the record.
Petitioner's Exception Number 12 is REJECTED for the reasons set forth in Respondent's Response to Petitioner's Exceptions.
Petitioner's Exception Number 13 is REJECTED for the reasons in support thereof written and stated on the record; there is competent substantial evidence to support the finding of fact at issue.
The issue raised in Petitioner's Exception Number 14 is intertwined with those raised in Exceptions Numbers 2 and 7 above. The Board finds that the ruling of the Hearing Officer which is at issue is contradictory to other rulings cited above. Accordingly, the Board remands this case to the Hearing Officer for clarification on this issue.
Petitioner's Exception Number 15 is REJECTED for the reasons stated on the record and written by Respondent. The test to be applied is not whether there is competent substantial evidence to support a proposed finding of fact, but whether there is competent substantial evidence to support the Hearing Officer's Findings of Fact.
The issue raised in Petitioner's Exception Number 16 is intertwined with those raised in Exceptions Numbers 2 and 7 above. The Board finds that the ruling of the Hearing Officer which is at issue is contradictory to other rulings cited above. Accordingly, the Board remands this case to the Hearing Officer for clarification on this issue.
Petitioner's Exception Number 17 is REJECTED for the reasons stated on the record and written by Respondent. The test to be applied is not whether there is competent substantial evidence to support a proposed finding of fact, but whether there is competent substantial evidence to support the Hearing Officer's Findings of Fact.
The issue raised in Petitioner's Exception Number 18 is intertwined with those raised in Exceptions Numbers 2 and 7 above. The Board finds that the ruling of the Hearing Officer which is at issue is contradictory to rulings cited above. Accordingly, the Board remands this case to the Hearing Officer for clarification on this issue. However, the Board does reject the appositive phrase "the PLF" because no PLF per se was performed.
Petitioner's Exception Number 19 is REJECTED; there is competent substantial evidence to support the finding of fact at issue. Rulings on credibility of the witnesses are generally within the province of the Hearing Officer.
Petitioner's Exception Number 20 is REJECTED for the reasons stated on the record and written by Respondent. The test to be applied is not whether there is competent substantial evidence to support a proposed finding of fact, but whether there is competent substantial evidence to support the Hearing Officer's Findings of Fact.
Petitioner's Exception Number 21 is REJECTED for the reasons stated on the record and written by Respondent. The test to be applied is not whether there is competent substantial evidence to support a proposed finding of fact, but whether there is competent substantial evidence to support the Hearing Officer's Findings of Fact.
Petitioner's Exception Number 22 is REJECTED for the reasons stated on the record and written by Respondent. There is competent substantial evidence to support the finding at issue. Furthermore, the weight and credibility of a witness's testimony is generally within the province of the Hearing Officer.
(Note: by its ruling on Exception Number 1, the Board did find that Dr. Slomka's deposition was admitted into evidence.)
Petitioner's Exception Number 3 is REJECTED; there is competent substantial evidence to support the finding of fact at issue. See also, Paragraph 78 of the Recommended Order.
The issue raised in Petitioner's Exception Number 24 is intertwined with those raised in Exceptions Numbers 2 and 7 above. The Board finds that the ruling of the Hearing Officer which is at issue is contradictory to other rulings cited above. Accordingly, the Board remands this case to the Hearing Officer for clarification on this issue.
The issue raised in Petitioner's Exception Number 25 is intertwined with those raised in Exceptions Numbers 2 and 7 above. The Board finds that the ruling of the Hearing Officer which is at issue is contradictory to other rulings cited above. Accordingly, the Board remands this case to the Hearing Officer for clarification on this issue.
The issue raised in Petitioner's Exception Number 26 is intertwined with those raised in Exceptions Numbers 2 and 7 above. The Board finds that the ruling of the Hearing Officer which is at issue is contradictory to other rulings cited above. Accordingly, the Board remands this case to the Hearing Officer for clarification on this issue.
The issue raised in Petitioner's Exception Number 27 is intertwined with those raised in Exceptions Numbers 2 and 7 above. The Board finds that the ruling of the Hearing Officer which is at issue is contradictory to other rulings cited above. Accordingly, the Board remands this case to the Hearing Officer for clarification on this issue.
Petitioner's Exception Number 28 is REJECTED for the reasons in support thereof written and stated on the record; there is competent substantial evidence to support the Conclusion of Law at issue. See rulings on Exceptions 8 and 9.
Petitioner's Exception Number 29 is REJECTED for the reasons in support thereof written and stated on the record; there is competent substantial evidence to support the Conclusion of Law at issue. See rulings on Exceptions
11 and 12.
The issue raised in Petitioner's Exception Number 30 is intertwined with those raised in Exceptions Numbers 2 and 7 above. The Board finds that the ruling of the Hearing Officer which is at issue is contradictory to other rulings cited above. Accordingly, the Board remands this case to the Hearing Officer for clarification on this issue.
Petitioner's Exception Number 31 is REJECTED for the reasons set forth in support thereof on the record. See ruling on Exception 15.
Petitioner's Exception Number 32 is REJECTED for the reasons set forth in support thereof on the record. See ruling on Exception 19.
Petitioner's Exception Number 33 is REJECTED for the reasons set forth in support thereof on the record. See ruling on Exception 22.
In light of the Board's ruling on Exception 25, the Board finds that the issue raised in this Exception is intertwined with the other issues being remanded. Therefore, the Board also remands the case to the Hearing Officer for clarification on this issue.
The issue raised in Petitioner's Exception Number 35 is dependent on the Hearing Officer's action with regard to the other issues being remanded for clarification. Accordingly, the Board also remands the case to the Hearing Officer for consideration and clarification on this issue.
RULINGS ON RESPONDENT'S EXCEPTIONS
The issue raised in Respondent's First Exception labeled as "M.M.," are issues that need to be revisited in light of the other matters being remanded. The Hearing Officer's Conclusion of Law 74 is contradictory to his rulings on Petitioner's Proposed Finding of Facts 132 and 134. Accordingly, for the reasons stated above, the Board remands this case to the Hearing Officer for clarification on this issue.
Respondent's Second Exception, labeled as "R.H.," is REJECTED for the reasons stated on the record and the reasons set forth in Petitioner's Response; there is competent substantial evidence to support the Finding of Fact and Conclusion of Law at issue.
The issues raised in Respondent's Third Exception, labeled as: Dr. Bonati's Medical Records Document Discussion with Patient R.H. Before Surgery About the Risks or Benefits of Surgery and the Anticipated Outcome or Alternative Treatment Options, are issues that need to be revisited in light of the other matters being remanded. The Hearing Officers's ruling on Finding of Fact 47 and Conclusion of Law 82 are inconsistent with his rulings on Petitioner's Proposed Findings of Fact. Accordingly, for the reasons stated above, the Board remands this case to the Hearing officer for clarification on the issues raised.
DISPOSITION
In light of the action taken by the Board on Petitioner's Exceptions 1, 2, 6, 7, 10, 14, 16, 18, 24, 25, 26, 27, 30, 34, and 35 and on Respondent's Exceptions 1 and 3, the Board is unable to make Findings of Fact or Conclusions of Law in this case at this time. The Board finds it necessary to remand this case to the Hearing Officer for clarification as to contradictory rulings made in the body of the Recommended Order and those made on Petitioner's Proposed Findings of Fact and for consideration and clarification of other issues intertwined with the apparently inconsistent rulings. In order to assist the Hearing Officer with his consideration on remand, the Board directs that a transcript of this hearing before the Board be provided to the Hearing Officer for his use.
DONE AND ORDERED this 21st day of November,1995.
BOARD OF MEDICINE
GARY S. WINCHESTER, M.D. CHAIRMAN
CERTIFICATE OF SERVICE
HEREBY CERTIFY that a true and correct copy of the foregoing Order and the attachments have been forwarded by U.S. Mail to Cynthia Tunnicliff, Attorney at Law, Pennington & Haben, Post Office Box 10095, Tallahassee, Florida 32302- 2095, Jonathan W. Lubell, 750 Lexington Avenue, New York, 10022; Salvatore A. Carpino, Attorney at Law, 8001 North Dale Mabry, Suite 301-A, Tampa, Florida 33614 and Arnold H. Pollack, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550 and by hand delivery to Larry G. McPherson, Chief Medical Attorney, Agency for Health care Administration, 1949 North Monroe Street, Tallahassee, Florida 32399-0992 this * day of *, 1995.
*
*NOTE: Document filed with DOAH undated and unsigned.
AMENDED CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Alfred O. Bonati, M.D., 7315 Hudson Avenue,
G.C. Institute, Hudson, Florida 34667- 1158, Cynthia Tuncicliff, Esquire, Pennington & Haben, P.0. Box 10095, Tallahassee, Florida 32302-2095, Jonathan
W. Lubell, Esquire, 750 Lexington Avenue, New York 10022, Salvatore Carpino, Attorney at Law, 8001 North Dale Mabry, Suite 301-A, Tampa, Florida 33614, and Arnold Pollack, Hearing officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, and by interof f ice delivery to Larry G. McPherson, Chief Medical Attorney, Agency for Health Care Administration, 1940 North Monroe Street, Tallahassee, Florida
32399-0792, at or before 5:00 p.m., this 29th day of November, 1995.
M. Karris
=================================================================
ORDER UPON REMAND
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF MEDICINE, )
)
Petitioner, )
)
vs. ) CASE NOS. 94-1866
) 94-1867
ALFRED O. BONATI, M.D., )
)
Respondent. )
)
ORDER UPON REMAND
On August 21, 1995, the undersigned Hearing Officer submitted a Recommended Order to the Agency For Health Care Administration, for the Board of Medicine, relative to allegations of misconduct heard at a formal hearing conducted in these matters in Tampa on March 21-24 and May 16-18, 1995.
By Order dated November 29, 1995, the Board of Medicine remanded the case to the Hearing Officer for clarification as to "contradictory rulings made in the body of the Recommended Order and those made on Petitioner's Proposed Findings of Fact and for consideration and clarification of other issues intertwined with the apparently inconsistent rulings." This remand was based on the Board's actions on Petitioner's Exceptions 1, 2, 6, 7, 10, 14, 16, 18, 24-
27, 30, 34 and 35, and on Respondent's Exceptions 1 and 3.
In the preparation of this Order Upon Remand, the undersigned had available and considered the original Recommended Order, the exceptions to the Recommended Order filed by both parties, the parties' responses to exceptions filed by their opponents and the Order of Remand. Neither the Proposed Findings of Fact submitted by both counsel nor the transcript of the proceedings were furnished to the undersigned for this purpose.
There is some question as to whether Petitioner's exhibits 6 and 7, the depositions of Michael Slomka, M.D., and Jeffrey Walker, M.D., were considered by the Hearing Officer in the preparation of the Recommended Order. Petitioner asserts in its Exception 1 to the Recommended Order that the Hearing Officer did not consider these depositions but also contends that the transcript clearly shows them as being received into evidence. It is true that the list of those exhibits introduced into evidence does not contain the subject depositions, but their omission from the list was no more than a ministerial error in the preparation of the Recommended Order. The transcript clearly indicates they were received into evidence and, in fact, they were considered by the Hearing Officer in the preparation of the Recommended Order.
With regard to Petitioner's Exception 2, and the exceptions related thereto, the Hearing Officer's Finding of Fact No. 5 restates the Agency's stated position that a procedure whose safety and efficacy have not been established is experimental and that experimental procedures require the performing physician to give a more detailed and specific advice of the experimental procedure to the proposed patient who is to undergo it.
Petitioner's Proposed Finding of Fact No. 25 states that the safety of the PLF, PCD and PCF has not been established. The ruling accepting that Proposed Finding of Fact as indicated in the Appendix to the Recommended Order is in error. The intent of the Hearing Officer was to accept the Petitioner's definition of experimental procedures but to reject the proposed finding that the procedures performed by Dr. Bonati in the PLF, PCD and PCF were experimental procedures.
Further, as to Petitioner's Exception 6, Finding of Fact No. 10 in the Recommended Order, which states that Dr. Hopkins "has ...done foramenectomy procedures" should read, "... has not done foramenectomy procedures."
These above clarifications and corrections resolve the apparent inconsistent rulings.
DONE and ENTERED in Tallahassee, Florida this 16th day of February, 1996.
ARNOLD H. POLLOCK, 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 16th day of February, 1996.
COPIES FURNISHED:
Britt Thomas, Esquire Natalie Duguid, Esquire Agency for Health Care
Administration
1940 North Monroe Street Tallahassee, Florida 32399-0792
Jonathan W. Lubell, Esquire 750 Lexington Avenue
New York, New York 10022
Cynthia Tunnicliff, Esquire Pennington & Haben
Post Office Box 10095 Tallahassee, Florida 32302-2095
Salvatore A. Carpino, Esquire 8001 North Dale Mabry Highway Suite 301-A
Tampa, Florida 33614
Alfred O. Bonati, M.D.
G.C. Institute 7315 Hudson Avenue
Hudson, Florida 34667-1158
Larry G. McPherson, Esquire Agency for Health Care
Administration
1940 North Monroe Street Tallahassee, Florida 32399-0792
Dr. Marm Harris Executive Director Board of Medicine
1940 North Monroe Street Tallahassee, Florida 32399-0792
Jerome W. Hoffman General Counsel
Agency for Health Care Administration
2727 Mahan Drive
Tallahassee, Florida 32309
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the Final Order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF MEDICINE, )
)
)
Petitioner, )
)
vs. ) CASE NO. 94-1866
) 94-1867
ALFRED O. BONATI, M.D., )
)
Respondent. )
)
ADDITIONAL ORDER UPON REMAND
On August 21, 1995, the undersigned Hearing Officer submitted a Recommended Order to the Agency For Health Care Administration, for the Board of Medicine, relative to allegations of misconduct heard at a formal hearing conducted in these matters in Tampa on March 21 - 24 and May 16 - 18, 1995.
By Order dated November 29, 1995, the Board of Medicine remanded the case to the Hearing Officer for clarification as to "contradictory rulings made in the body of the Recommended Order and those made on Petitioner's Proposed Findings of Fact and for consideration and clarification of other issues intertwined with the apparently inconsistent rulings."
On February 16, 1996 the undersigned entered his Order Upon Remand in which the indicated apparent inconsistencies were explained. Thereafter, on February 23, 1996, counsel for Respondent contacted the Hearing Officer by letter and indicated that while the issued raised by Petitioner's exceptions had been treated, those raised by Respondent had not.
With regard to the apparent inconsistency between the undersigned's Finding of Fact Number 74 in the body of the Recommended Order and the undersigned's ruling on Petitioner's Proposed Findings of Fact Numbers 132 and 134 in the Appendix to the Recommended Order, the Finding of Fact in the Recommended order was the intention of the Hearing Officer. Any inconsistency between that and the Petitioner's proposals as alleged was the result of the Hearing Officer's misunderstanding of the Petitioner's proposal.
As for Respondent's third exception, which dealt with a need for clarification of an alleged inconsistency between Finding of Fact 47 and Conclusion of Law 82 on the one hand, and the rulings on "Petitioner's Proposed Finding of Fact", no inconsistency requiring clarification is perceived. The Finding appears clearly stated as does the Conclusion reached, and if there is any inconsistency, it is based on the Hearing Officer's misunderstanding or misreading of the proposal.
DONE and ENTERED in Tallahassee, Florida this 27th day of March, 1996.
ARNOLD H. POLLOCK, 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 27th day of March, 1996.
COPIES FURNISHED:
Britt Thomas, Esquire Natalie Duguid, Esquire Agency for Health Care
Administration
1940 North Monroe Street Tallahassee, Florida 32399-0792
Jonathan W. Lubell, Esquire 750 Lexington Avenue
New York, New York 10022
Cynthia Tunnicliff, Esquire Pennington & Haben
Post Office Box 10095 Tallahassee, Florida 32302-2095
Salvatore A. Carpino, Esquire 8001 North Dale Mabry Highway Suite 301-A
Tampa, Florida 33614
Alfred O. Bonati, M.D.
G.C. Institute 7315 Hudson Avenue
Hudson, Florida 34667-1158
Larry G. McPherson, Esquire Agency for Health Care
Administration
1940 North Monroe Street Tallahassee, Florida 32399-0792
Dr. Marm Harris Executive Director Board of Medicine
1940 North Monroe Street Tallahassee, Florida 32399-0792
Jerome W. Hoffman General Counsel
Agency for Health Care Administration
2727 Mahan Drive
Tallahassee, Florida 32309
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the Final Order in this case concerning their 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.
| Issue Date | Proceedings |
|---|---|
| May 01, 1996 | Final Order filed. |
| Mar. 27, 1996 | Additional Order Upon Remand sent out. |
| Feb. 23, 1996 | Letter to Hearing Officer from Jonathan W. Lubell Re: Order Upon Remand filed. |
| Feb. 16, 1996 | Order Upon Remand sent out. |
| Feb. 16, 1996 | Order Upon Remand sent out. |
| Jan. 29, 1996 | (AHCA) Order filed. |
| Jan. 24, 1996 | Excerpt of Meeting Alfred Octavius Bonati, M.D. w/cover letter filed. |
| Dec. 11, 1995 | (Joseph S. Garwood) Notice of Appearance filed. |
| Dec. 01, 1995 | Order filed. |
| Aug. 21, 1995 | Recommended Order sent out. CASE CLOSED. Hearing held 03/21-24/95 &05/16-18/95. |
| Jul. 17, 1995 | Respondent`s Additional Written Argument filed. |
| Jul. 17, 1995 | (Petitioner) Additional Argument in Support of Petitioner`s Proposed Recommended Order filed. |
| Jun. 30, 1995 | Order Denying Motion to Strike Written Argument And Permitting Additional Argument By Either Party sent out. (Motion denied) |
| Jun. 29, 1995 | Letter to Hearing Officer from Britt Thomas Re: Page three of Petitioner`s Final Argument; Page three of final argument filed. |
| Jun. 29, 1995 | Respondent`s Opposition to Petitioner`s Motion to Strike filed. |
| Jun. 29, 1995 | (Respondent) Response to Petitioner`s Motion to Strike Written Argument filed. |
| Jun. 27, 1995 | Petitioner`s Motion to Strike Respondent`s Written Argument filed. |
| Jun. 27, 1995 | Respondent`s Written Argument filed. |
| Jun. 26, 1995 | Petitioner`s Proposed Recommended Order filed. |
| Jun. 26, 1995 | Respondent`s Proposed Recommended Order filed. |
| Jun. 26, 1995 | Petitioner`s Final Argument in Support of its Proposed Recommended Order filed. |
| Jun. 20, 1995 | Letter to Hearing Officer from Jonathan W. Lubell Re: Dates for filing proposed findings, conclusions and written argument filed. |
| Jun. 15, 1995 | Letter to Hearing Officer from Jonathan W. Lubell Re: Date for filing proposed findings, conclusions and written argument filed. |
| Jun. 09, 1995 | Transcript of Proceedings Volume V ; Volume VI Transcript of Proceedings ; Transcript of Proceedings Volume VII filed. |
| May 16, 1995 | CASE STATUS: Hearing Held. |
| Apr. 27, 1995 | Amended Notice of Hearing sent out. (hearing set for May 16-19, 1995;9:00am; Tampa) |
| Apr. 14, 1995 | Transcript of Proceedings (Volumes 1A, 1B, 2A, 2B, 3A, 3B, tagged) filed. |
| Mar. 16, 1995 | (Respondent) Response to Second Set of Interrogatories, Request for Admissions and Production of Documents to Respondent; Response to Request for Admissions; Notice of Serving Answers to Second Set of Interrogatories, Request for Admissions and Producti |
| Mar. 15, 1995 | (Petitioner) Notice of Taking Deposition in Liew of Live Testimony filed. |
| Mar. 14, 1995 | (Respondent) Motion for Protective Order; (Petitioner) Notice of Taking Deposition In Lieu of Live Testimony filed. |
| Mar. 13, 1995 | Order Granting Motion to Expedite Discovery sent out. (Motion granted) |
| Mar. 13, 1995 | Order Granting Motion to Preserve Testimony by Depositions sent out.(Motion granted conditioned upon Respondent`s counsel being afforded opportunity to participate) |
| Mar. 13, 1995 | (Respondent) Notice of Taking Deposition to Perpetuate Testimony filed. |
| Mar. 10, 1995 | (Petitioner) Notice of Taking Deposition in Lieu of Live Testimony filed. |
| Mar. 10, 1995 | (Petitioner) Notice of Taking Deposition in Lieu of Live Testimony filed. |
| Mar. 09, 1995 | (Petitioner) Notice of Appearance; Motion to Preserve Testimony by Deposition in Lieu of Live Testimony filed. |
| Mar. 02, 1995 | Notice of Serving Petitioner`s Response to Respondent`s Second Set of General Interrogatories and Request to Produce filed. |
| Mar. 02, 1995 | Respondent`s Motion to Expedite Discovery filed. |
| Feb. 23, 1995 | Order Granting Motion to Expedite Discovery sent out. |
| Feb. 23, 1995 | (Respondent) Request to Produce; (Respondent) Response to Petitioner`s Motion to Expedite Discovery; (Respondent) Notice of Serving Second Set of General Interrogatories filed. |
| Feb. 22, 1995 | Amended Notice of Hearing (as to location of hearing only) sent out. (hearing set for March 21-24, 1995; 9:00am; Tampa) |
| Feb. 22, 1995 | Petitioner`s Motion to Quash Respondent`s Subpoena And Response to Respondent`s Motion for Protective Order filed. |
| Feb. 17, 1995 | Petitioner`s Motion to Expedite Discovery; Notice of Serving Petitioner`s Second Set of Interrogs., Request for Admissions, and Production of Documents to Respondent filed. |
| Feb. 17, 1995 | (Respondent) Motion for Protective Order filed. |
| Jan. 30, 1995 | Order Authorizing Participation of Foreign Counsel sent out. (Motion granted) |
| Jan. 26, 1995 | Letter to HO from J. Lubell re: Ruling on Motion for Special Appearance filed on 10/3/94 by Paul B. Johnson; Letter to HO from P. Johnson re: Motion for Special Appearance of Foreign Counsel; Motion for Special Appearance of Foreign Counsel filed. |
| Jan. 25, 1995 | Respondent`s Opposition to Petitioner`s Motion to Quash Respondent`s Subpoena and Request for Documents filed. |
| Jan. 25, 1995 | Order on Petitioner`s Motion to Quash sent out. |
| Jan. 24, 1995 | Respondent`s Opposition to Petitioner`s Motion to Quash Respondent`s Subpoena and Request for Documents filed. |
| Jan. 20, 1995 | Petitioner`s Motion to Quash Respondent`s Subpoena And Request for Production filed. |
| Jan. 03, 1995 | (Petitioner) Notice of Filing Petitioner`s Response to Respondent`s First Set of General Interrogatories, Expert Interrogatories, and Request to Produce filed. |
| Jan. 03, 1995 | (Respondent) Motion to Compel filed. |
| Dec. 05, 1994 | (Respondent) Request to Produce filed. |
| Dec. 05, 1994 | (Respondent) Notice of Serving First Set of General Interrogatories filed. |
| Dec. 05, 1994 | (Respondent) Notice of Serving First Set of Expert Interrogatories filed. |
| Nov. 16, 1994 | Order Denying Motion to Dismiss or for Abeyance sent out. |
| Oct. 24, 1994 | Notice of substitution of counsel (Petitioner) filed. |
| Oct. 19, 1994 | Order Setting Hearing Date sent out. (set for March 21-24, 1995; 9:00am; Tampa) |
| Oct. 17, 1994 | Joint Response to Hearing Officer`s Order Granting Respondent`s Motion to Continue and to Provide Hearing Dates filed. |
| Oct. 14, 1994 | (Respondent) Notice of Filing; Transcript (Probable Cause Hearing); Affidavit filed. |
| Oct. 10, 1994 | Order Granting Motion for Continuance sent out. |
| Oct. 07, 1994 | (Respondent) Motion to Dismiss; Notice of Appearance filed. |
| Oct. 07, 1994 | (Respondent) Motion to Continue filed. |
| Oct. 05, 1994 | (joint) Prehearing Stipulation filed. |
| Oct. 05, 1994 | (3) Notice of Taking Deposition filed. (From Paul B. Johnson) |
| Oct. 04, 1994 | (Respondent) Motion for Special Appearance of Foreign Counsel filed. |
| Oct. 03, 1994 | (Petitioner) Notice of Taking Telephonic Deposition (6) filed. |
| Oct. 03, 1994 | (Petitioner) Notice of Serving Amended Answers to Respondent`s Interrogatories filed. |
| Oct. 03, 1994 | (Petitioner) Notice of Taking Telephonic Deposition in Lieu of Live Testimony filed. |
| Sep. 30, 1994 | (2) Notice of Taking Deposition filed. (From Paul B. Johnson) |
| Sep. 29, 1994 | (Respondent) Motion for Continuance filed. |
| Sep. 29, 1994 | (Respondent) Notice of Serving Answers to Petitioner`s First Set of Interrogatories to Respondent; Response to Request for Production of Documents filed. |
| Sep. 29, 1994 | Order Denying Motion for Continuance sent out. (Motion denied) |
| Sep. 27, 1994 | Notice of Taking Telephonic Deposition in Lieu of Live Testimony filed. |
| Sep. 27, 1994 | Petitioner`s Supplemental Response to Respondent`s Request for Production filed. |
| Sep. 27, 1994 | Notice of Taking Telephonic Deposition (filed by Petitioner) filed. |
| Sep. 27, 1994 | Prehearing Order sent out. (prehearing stipulation due by 10/5/94) |
| Sep. 27, 1994 | Amended Notice of Hearing (as to location only) sent out. (hearing set for 10/11&12/94; at 9:00am; in Tampa) |
| Sep. 26, 1994 | Petitioner`s Response to Respondent`s Request for Production; Petitioner`s Response to Respondent`s Request for Production filed. |
| Sep. 22, 1994 | (Petitioner) Notice of Telephonic Hearing On Petitioner`s Motion to Compel filed. |
| Sep. 08, 1994 | Petitioner`s Motion to Compel Discovery and for Order of Prehearing Instructions filed. |
| Aug. 29, 1994 | Respondent`s Request to Produce; Respondent`s Notice of Serving Interrogatories filed. |
| May 31, 1994 | Notice of Hearing sent out. (hearing set for 10/11/94; 9:00am; Tampa) |
| May 26, 1994 | Respondent`s Response to Petitioner`s First Set of Request for Admissions; filed. |
| Apr. 22, 1994 | (Petitioner) Response to Initial Order filed. |
| Apr. 15, 1994 | Notice of Serving Petitioner`s First Set of Request for Admissions, Request for Production of Documents And Interrogatories to Respondent filed. |
| Apr. 12, 1994 | Initial Order sent out. |
| Apr. 08, 1994 | Agency referral letter; (DBPR) Notice of Appearance; (Respondent) Notice of Appearance and Demand for Formal Hearing; Administrative Complaint filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 25, 1996 | Agency Final Order | |
| Nov. 29, 1995 | Remanded from the Agency | |
| Aug. 21, 1995 | Recommended Order | Evidence shows only minor records deviation from standard, not experimental practice below standards or exploitation of patients for personl gain. |
