STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, BOARD )

OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 94-1872

) BARBARA ANNE MAZZELLA, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on December

22 and 23, 1994, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph S. Garwood, Esquire

Britt Thomas, Esquire

Agency for Health Care Administration 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: James S. Haliczer, Esquire

Lawrence E. Brownstein, Esquire COONEY, HALICZER, MATTSON, LANCE, BLACKBURN, PETTIS & RICHARDS, P.A.

Post Office Box 14546

Fort Lauderdale, Florida 33302 STATEMENT OF THE ISSUES

1. Whether Respondent committed the violations alleged in the Administrative Complaint?

   
   

2. If so, what disciplinary action should be taken against her?

PRELIMINARY STATEMENT

On December 20, 1993, the Department of Business and Professional Regulation (hereinafter referred to as the "Department") issued a two-count Administrative Complaint against Respondent, a Florida-licensed medical doctor, alleging that, in connection with her care and treatment of patient L.K., she violated: (Count One) Section 458.331(1)(t), Florida Statutes, by "in that [she] failed to order the appropriate laboratory tests and consultations to adequately assess the patient's condition, and failed to appropriately assess and diagnose the patient's condition;" and (Count Two) Section 458.331(1)(m),

Florida Statutes, "in that [she] failed to document complete notes in the patient's medical records."

Respondent denied the allegations of wrongdoing made against her in the Administrative Complaint and requested a formal hearing. On April 7, 1994, the Department referred the matter to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the formal hearing Respondent had requested.

The hearing was held on December 22 and 23, 1994. 1/ At the hearing, the Agency for Health Care Administration (hereinafter referred to as the "Agency") 2/ presented the live testimony of two witness: C.W. Kelly Parke, M.D., a Florida-licensed physician, board-certified in internal medicine and cardiovascular disease, who gave expert testimony; and B.K., patient L.K.'s son. In addition to Dr. Parke's and B.K.'s live testimony, during its case-in- chief, the Agency offered, and the Hearing Officer received, eleven exhibits (Petitioner's Exhibits 1 through 9, 11 and 13) into evidence. 3/ Among these exhibits were the transcripts of the depositions of: Joseph Bynoe, the former records custodian for the Humana Health Care Plan (hereinafter referred to as "Humana") Urgent Care Center in Plantation, Florida; and David Francis, M.D., a board-certified radiologist who provided radiological services at the Urgent Care Center. These transcripts were offered in lieu of the deponents' live testimony at hearing.

Respondent testified on her own behalf at hearing and presented the testimony of two other witnesses: Kenneth Homer, M.D., a Florida-licensed physician, board-certified in internal medicine; and Alfonso Petti, M.D., a board-certified orthopedic surgeon who has a practice in Hollywood, Florida. Both Dr. Homer and Dr. Petti testified as expert witnesses. In addition to her testimony and the testimony of Drs. Homer and Petti, Respondent offered one exhibit (Respondent's Exhibit 1) into evidence, which the Hearing Officer admitted.

After Respondent concluded the presentation of her case, the Agency sought to move into evidence, as a composite rebuttal exhibit (marked as Petitioner's Exhibit 14), what it claimed to be, correspondence to and from the American Board of Internal Medicine (hereinafter referred to as the "ABIM") concerning Respondent's eligibility for ABIM certification. During cross-examination, Respondent had testified that, although she was not "board-certified," she was "board-eligible." In offering Petitioner's Exhibit 14 into evidence, the Agency argued that the exhibit rebutted the testimony Respondent had given on cross- examination that she was "board-eligible." Respondent objected to the admissibility of the exhibit on various grounds. The Hearing Officer deferred ruling on the matter until the issuance of his Recommended Order.

Thereafter, the Hearing Officer, on the record, established a deadline for the filing of post-hearing submittals. The deadline set by the Hearing Officer was 30 days from the date of the Hearing Officer's receipt of the transcript of the hearing.

The Hearing Officer received the hearing transcript on January 19, 1995.

On Monday, February 20, 1995, the Agency filed a proposed recommended order. On that same day, Respondent also filed a proposed recommended order, as well as a separate pleading entitled "Respondent's Closing Argument."

The proposed recommended orders submitted by the parties each contain, what have been labelled as, proposed "findings of fact." These proposed

"findings of fact" are specifically addressed in the Appendix to this Recommended Order.

In their post-hearing submittals, both parties have addressed the issue of the admissibility of Petitioner's Exhibit 14. The Agency, in its proposed recommended order, concedes that this composite exhibit "consists primarily of irrelevant material," but it contends that "one letter [in the composite exhibit, concerning Respondent's eligibility for ABIM certification] dated September 30, 1993, from the [ABIM] to the Chairman of the Credentials Committee at Aventura Hospital and Medical Center, [hereinafter referred to as the "September 30, 1993, letter"] is admissible under [S]ection 120.58, Florida Statutes and [S]ection 90.803(6), Florida Statutes." 4/ According to the Agency, "[t]his letter contradicts the Respondent's statement under the oath that she is Board eligible." 5/

The Hearing Officer disagrees with the Agency's assessment of the September 30, 1993, letter. The letter is no more than uncorroborated hearsay evidence that would be inadmissible over objection in a civil action. At hearing, the Agency did not call to the stand anyone from ABIM to lay the evidentiary foundation necessary to substantiate its claim that the letter constitutes a business record that would be admissible in a civil proceeding as an exception to the hearsay rule under Section 90.803(6), Florida Statutes. See Forrester v. Norman Roger Jewell & Brooks International, Inc., 621 So.2d 1369, 1373 (Fla. 1st DCA 1992); Fletcher v. McEwen, 561 So.2d 616, 617 (Fla. 4th DCA 1990); Newell

1. Best Security Systems, Inc., 560 So.2d 395, 397-98 (Fla. 4th DCA 1990); City of Fort Lauderdale v. Florida Unemployment Appeals Commission, 536 So.2d 1074, 1075 (Fla. 4th DCA 1988). Furthermore, the assertion in the letter that, at the time of the letter (September 30, 1993), Respondent was not board-eligible does not contradict Respondent's testimony at hearing that, at the time of her testimony (December 22, 1994, almost 15 months after the letter had been written), she was board-eligible. Accordingly, such assertion does not qualify as rebuttal or impeachment evidence. See O'Steen v. State, 506 So.2d 476, 478 (Fla. 1st DCA 1987). For the foregoing reasons, the Hearing Officer declines to receive the letter into evidence. 6/

   
   

   Respondent, in her proposed recommended order, renews objections that were overruled at hearing to the admissibility of B.K.'s testimony and Petitioner's Exhibits 8 and 9. The arguments that she makes in support of her renewed objections are not persuasive. Accordingly, the Hearing Officer has considered (although not necessarily accorded any weight or significance to) the testimony and exhibits that are the subject of these renewed objections.

   
   

   FINDINGS OF FACT

   
   

   Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

   
   

   1. The Agency is a state government licensing and regulatory agency.

      
      

   2. Respondent is now, and has been since June 16, 1980, a physician licensed to practice medicine in the State of Florida. She holds license number ME 0036758.

      
      

   3. Since the completion of her residency at Engelwood Hospital in New Jersey in 1974, Respondent has specialized in internal medicine, although she is not board-certified.

   4. Until December of 1987, when she relocated to Florida, she had her own practice in New Jersey.

      
      

   5. Following her arrival in Florida, she initially went into private practice.

      
      

   6. In June of 1990, Respondent went to work part-time at Humana's Urgent Care Center (hereinafter referred to as the "UCC") in Plantation, Florida, a walk-in clinic servicing Humana members who needed to see a physician but, because of the unexpected nature of their illness, did not have a scheduled appointment with their primary care physician. 7/

      
      

   7. In February of 1991, Respondent was hired as the full-time Director of the UCC.

      
      

   8. She remained in that position until her resignation in February of 1994.

      
      

   9. She presently has her own practice in Fort Lauderdale, Florida.

      
      

   10. On or about April 22, 1992, patient L.K., an 80-year old female, slipped and fell.

       
       

   11. Later that same day, at around noon, L.K., accompanied by two companions, presented to the UCC with complaints of right groin pain and difficulty walking after the fall.

       
       

   12. L.K. did not have any of her medical records with her, nor did her primary care physician provide the UCC with these records in advance of her visit.

       
       

   13. L.K. was greeted by the receptionist at the UCC.

       
       

   14. The receptionist asked L.K. for her name, address, telephone number and social security number.

       
       

   15. L.K. provided the information requested, which the receptionist recorded on a "priority care record" form (hereinafter referred to as the "PCR Form").

       
       

   16. Thereafter, a nurse escorted L.K. from the reception area to an examining room.

       
       

   17. Once in the examining room, the nurse questioned L.K. as to the reason for L.K.'s visit to the UCC and also inquired about any medications L.K. might be taking and allergies she might have.

       
       

   18. In response to these inquiries, L.K. told the nurse that: she was 80 years old; she had fallen that morning and, as a result, was experiencing pain in her right groin and had "great difficulty walking;" she was taking insulin 8/ and Ecotrin, among other medications; and she was allergic to sulfur.

       
       

   19. The nurse documented these responses on the PCR Form.

       
       

   20. By now, it was approximately 12:30 p.m.

   21. The nurse then took and recorded on the PCR Form L.K.'s vital signs, which were within normal limits. L.K.'s temperature was 98.6 degrees Fahrenheit, her pulse rate was 68, her respiratory rate was 20 and her blood pressure was 110 over 60.

       
       

   22. The nurse and L.K. were soon joined in the examining room by Respondent.

       
       

   23. Upon entering the examining room, Respondent asked L.K. "what had happened." L.K. told Respondent that she had slipped and fallen and that she had pain in her right groin. Respondent recorded this information on the PCR Form.

       
       

   24. Respondent also noted on the PCR Form that L.K. was "dragging [her] leg."

       
       

   25. Although Respondent's records do not so reflect, L.K. also complained to Respondent that she had pain in her lower back and that before falling, she had been feeling fine and had not been experiencing any chest pains or dizziness.

       
       

   26. It was apparent to Respondent, based upon her conversation with L.K., that L.K. was oriented as to person, place and time.

       
       

   27. Respondent then conducted a thorough physical examination of L.K., but failed to document that she did so or to note the results of the examination on the PCR Form or elsewhere in her records.

       
       

   28. In not recording any of the findings of her physical examination of L.K., Respondent was following her practice of "charting by exception," that is noting only positive findings or abnormalities in her records. "Charting by exception" is not uncommon in hospital emergency room and walk-in clinic settings.

       
       

   29. As part of her examination of L.K., Respondent rechecked L.K.'s blood pressure. It was still 110 over 60.

       
       

   30. She listened to L.K.'s heart and lungs and discovered no abnormalities.

       
       

   31. She inspected L.K.'s skin. There were no scratches, bruises or abrasions. L.K.'s skin color was "good."

       
       

   32. She palpated L.K.'s abdominal, pelvic and groin areas. No masses or hernias were found. The abdomen was soft and not tender. The spleen and liver were normal to the touch.

       
       

   33. She tested the range of motion of L.K.'s hip. The test revealed that it was unlikely that L.K. had suffered a hip fracture.

       
       

   34. She performed a rectal examination of L.K., which included a guaiac test of L.K.'s stool. The test did not reveal the presence of any blood in the stool.

       
       

   35. She observed L.K.'s eye movements and found them to be normal.

   36. There was no indication from the physical examination Respondent conducted that L.K. had any respiratory, metabolic, hemodynamic or other problem requiring immediate hospitalization.

       
       

   37. Respondent did not order or perform any tests be done on L.K.'s blood, such as a complete blood count or prothrombin time.

       
       

   38. In failing to do so, Respondent did not act in a manner that was inconsistent with what a reasonably prudent internist, in view of L.K.'s clinical presentation, would have recognized as being acceptable and appropriate.

       
       

   39. Notwithstanding that her physical examination of L.K. revealed no signs of any fracture, Respondent, as she noted on the PCR Form, ordered that x- rays be taken of L.K.'s right hip and pelvic area.

       
       

   40. Humana's x-ray facilities were in a building adjacent to the UCC.

       
       

   41. L.K. was brought to the building in a wheelchair and the x-rays Respondent had ordered were taken.

       
       

   42. The radiologist on contract with Humana to read x-rays taken at this site, David Francis, M.D., was not at his station.

       
       

   43. L.K. returned to the UCC with the x-rays. She told Respondent that the radiologist was unavailable.

       
       

   44. Respondent telephoned Dr. Francis' office and was told that he had left for the day.

       
       

   45. Respondent then looked at the x-rays.

       
       

   46. The x-rays were difficult to read because of the presence of bowel gasses, feces and a pessary and the osteopenic condition 9/ of the x-rayed bone structures.

       
       

   47. Respondent had obtained L.K.'s medical records from L.K.'s primary care physician and, upon a review of those records, learned, among other things, that L.K. had a "history of osteoporosis," which made her more susceptible to bone fractures. 10/

       
       

   48. Nonetheless, as she noted on the PCR Form, Respondent did not see any fractures when she looked at the x-rays.

       
       

   49. Respondent so informed L.K. and her companions, but added that she was not a radiologist and therefore was not certain that L.K. had not sustained a fracture.

       
       

   50. She told them that she would have a radiologist look at the x-rays "first thing in the morning" and that she would make arrangements to have L.K. seen by an orthopedic specialist thereafter.

       
       

   51. Under the circumstances, it was appropriate for Respondent, who was, and did not hold herself out to be anything other than, an internist without any specialized skills or training in either radiology or orthopedics, to seek the input of a radiologist and an orthopedist.

   52. Moreover, there was no reason for Respondent to believe that there was any need to have a radiologist or an orthopedist involved in the matter any sooner than the following day.

       
       

   53. Based upon her reading of the x-rays and the other information she had gathered, Respondent preliminarily determined that L.K. had a lumbosacral sprain, which she noted on the PCR Form by writing, under "assessment," "L/S Sprain."

       
       

   54. Respondent reasonably believed that there was no present need to hospitalize L.K., particularly inasmuch as she had been assured by L.K.'s companions that there would be someone available at home to watch L.K. at all times.

       
       

   55. Respondent therefore instructed L.K. to go home and rest.

       
       

   56. She ordered a walker or a wheelchair for L.K. to use at home when she needed to get out of bed.

       
       

   57. Respondent told L.K. and her two companions that if there was any increase in L.K.'s pain or discomfort, or if any new problems developed, L.K. should go directly to the Humana/Bennett Hospital emergency room. 11/

       
       

   58. That Respondent sent L.K. home is reflected on the PCR Form, however, the form does not indicate what, if any, instructions Respondent gave L.K.

       
       

   59. Before L.K. left the UCC, she was given injections of Toradol, an

       anti-inflammatory drug, and Norflex, a muscle relaxant. The injections appeared to make L.K. feel considerably more comfortable. L.K. was also given prescriptions for Indocin and Soma. Respondent listed these medications (Toradol, Norflex, Indocin and Soma) on the PCR Form under "plan." No other entries were made under this heading on the form.

       
       

   60. Following L.K.'s departure from the UCC, Respondent took L.K.'s x-rays to Dr. Francis' office and laid them on his desk, along with a note requesting that, upon his return to the office, he read the x-rays and call Respondent to tell her of his findings.

       
       

   61. Respondent also telephoned an orthopedic specialist to schedule an appointment for L.K. for the next day.

       
       

   62. On the morning of April 23, 1992, Dr. Francis read the x-rays that Respondent had left on his desk the day before.

       
       

   63. His reading of the x-rays revealed that L.K. had multiple pelvic fractures.

       
       

   64. Because the anatomy of the pelvis is atypical, it is not uncommon for internists and other primary care physicians who do not have the specialized skills and training of a radiologist or an orthopedist to miss pelvic fractures on x-rays, as did Respondent in the instant case.

       
       

   65. Respondent's failure to identify the pelvic fractures on L.K.'s x-rays, however, did not result in Respondent rendering care and treatment to L.K. that was inadequate or otherwise inappropriate. Given L.K.'s clinical presentation, whether she had a fractured pelvis or not, sending her home with instructions to rest (as opposed to hospitalizing her) was not inappropriate. Reasonably

       prudent physicians do not routinely hospitalize patients simply because they have pelvic fractures.

       
       

   66. After reading L.K.'s x-rays, Dr. Francis telephoned Respondent and advised her that the x-rays revealed that L.K. had fractured her pelvis.

       
       

   67. Respondent thereupon placed a telephone call to L.K.'s residence. The person who answered the telephone informed Respondent that L.K. had been taken to the Humana/Bennett Hospital emergency room because she was in a great deal of pain.

       
       

   68. L.K. arrived at the emergency room at approximately 10:30 a.m. complaining of weakness and dizziness. She had a temperature of 95 degrees Fahrenheit (taken orally). Her blood pressure was 98 over 60 and her pulse was 96.

       
       

   69. Laboratory testing done at the hospital indicated that L.K.'s blood sugar was very high (750 milligrams, which was twice as high as normal), that her hemoglobin 12/ and blood pH were low, 13/ and that she had an enzyme profile indicative of a myocardial infarction.

       
       

   70. An electrocardiogram administered at the hospital also lent support to the conclusion that L.K. had a myocardial infarction.

       
       

   71. It appears likely, particularly in light of L.K.'s very high blood sugar, that the myocardial infarction was the product of a diabetic acidosis.

       
       

   72. X-rays taken at the hospital revealed that L.K. had sustained multiple fractures of her pelvis, but that there was no significant bone displacement. The fracture sites were not near any major arteries or blood vessels.

       
       

   73. L.K.'s condition quickly deteriorated after her arrival at the hospital.

       
       

   74. At 2:15 p.m. she was pronounced dead.

       
       

   75. Thereafter, an autopsy was performed by Stephen Nelson, M.D., of the Broward County Medical Examiner's Office.

       
       

   76. The following are the "Autopsy Findings" set forth in in Dr. Nelson's Autopsy Report:

       
       

       1. Atheroscerotic vascular disease, multifocal 14/

       2. Calcific aortic valve

       3. Pulmonary congestion, with calcific vessels

       4. Ateriolonephrosclerosis

       5. Pelvic fracture

       6. Cystic encephalomalacia, left putamen, remote

       7. Status post resuscitation

       8. Edentulous mouth

          
          

   77. In his report, Dr. Nelson listed the following as the "CAUSE OF DEATH," "CONTRIBUTORY CAUSE OF DEATH" and "MANNER OF DEATH":

       
       

       CAUSE OF DEATH: Pelvic fracture

       CONTRIBUTORY CAUSE OF DEATH: Coronary atherosclerosis MANNER OF DEATH: Accident

   78. Although Dr. Nelson listed "pelvic fracture" as L.K.'s cause of death, in his Autopsy Report, he did not state that he found evidence of tears or lacerations of any major arteries or blood vessels, nor did he indicate that he discovered the loss of an amount of blood sufficient to have caused or contributed to L.K.'s death. He did note, however, the following:

       
       

       Hemorrhage is noted dissecting within the planes of the rectus abdominis muscle extending from umbilicus to pubic symphysis. Hemorrhage is subsequently traced to a 1 inch wide ragged displaced fracture at the pubic symphysis par- ticularly prominent on the left side. There

       is tearing of the peritoneum, though, no free or clotted peritoneal fluid is noted.

       
       

       There is hemorrhage along the anterior surfaces of the urinary bladder and the serosa of the urinary bladder.

       
       

       CONCLUSIONS OF LAW

       
       

   79. The Board of Medicine (hereinafter referred to as the "Board") is statutorily empowered to take disciplinary action against a physician licensed to practice medicine in the State of Florida based upon any of the grounds enumerated in Section 458.331(1), Florida Statutes.

       
       

   80. Where the disciplinary action sought is the revocation or suspension of the physician's license, the proof of guilt must be clear and convincing. See Section 458.331(3), Fla. Stat.; Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So.2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So.2d 500 (Fla. 3d DCA 1991). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

       
       

   81. Where the discipline does not involve the loss of licensure, the physician's guilt need be established by only a preponderance of the evidence. See 458.331(3), Fla. Stat.; Allen v. School Board of Dade County, 571 So.2d 568, 569 (Fla. 3d DCA 1990).

       
       

   82. Regardless of the disciplinary action taken, it may be based only upon the violations specifically alleged in the administrative complaint. See Kinney

       v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).

       
       

   83. Furthermore, in determining whether Section 458.331(1), Florida Statutes, has been violated in the manner charged in the administrative complaint, one "must bear in mind that it is, in effect, a penal statute. . . This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977).

   84. Count One of the Administrative Complaint issued in the instant case alleges that, in connection with her care and treatment of L.K., Respondent violated Section 458.331(1)(t), Florida Statutes, "in that [she] failed to order the appropriate laboratory tests and consultations to adequately assess the patient's condition, and failed to appropriately assess and diagnose the patient's condition."

       
       

   85. At all times material to the instant case, subsection (1)(t) of Section 458.331, Florida Statutes, has authorized the taking of disciplinary action against a Florida-licensed physician for "[g]ross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances."

       
       

   86. The Agency has not proven by even a preponderance of the record evidence that, in connection with her care and treatment of L.K., Respondent failed to order any laboratory tests or consultations that a reasonably prudent internist would have ordered under similar circumstances or that she in any other way deviated from what a reasonably prudent internist, faced with similar circumstances, would have done to assess and diagnose L.K.'s condition. It is true that Respondent did not see the pelvic fractures on L.K.'s x-rays and that she preliminarily determined, based upon the information she had available (including the results of the thorough physical examination she had administered) that L.K. only had a lumbosacral sprain. 15/ Respondent, however, was an internist, not a radiologist or an orthopedist, and she did not have, nor was she required to have, the specialized skills and training necessary to definitively decide whether these particularly hard to read x-rays revealed any pelvic fractures. Respondent fully recognized her limitations and, therefore, before making any final diagnosis, appropriately and in a reasonably timely manner, had a radiologist read the x-rays to make sure that there indeed were no fractures. She did not, in connection with her efforts to assess and diagnose L.K.'s condition, in any way breach the prevailing standard of care that, as an internist, she was required to meet under the circumstances.

       
       

   87. Inasmuch as the Agency has failed to establish that Respondent violated subsection (1)(t) of Section 458.331, Florida Statutes, in the manner alleged in Count One of the Administrative Complaint, this count of the Administrative Complaint should be dismissed.

       
       

   88. Count Two of the Administrative Complaint issued in the instant case alleges that, in connection with her care and treatment of L.K., Respondent violated Section 458.331(1)(m), Florida Statutes, "in that [she] failed to document complete notes in the patient's medical records."

       
       

   89. At all times material to the instant case, subsection (1)(m) of Section 458.331, Florida Statutes, has authorized the taking of disciplinary action against a Florida-licensed physician for "[f]ailing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations."

       
       

   90. This statutory provision does not purport to encompass "JCAH standards or those of a 'reasonably prudent physician.'" Breesmen v. Department of Professional Regulation, Board of Medicine, 567 So.2d 469, 471 (Fla. 1st DCA 1990).

   91. It does impose upon the physician, however, an obligation to provide sufficient documentation "so that 'neutral third parties can observe what transpired during the course of treatment of a patient.'" Robertson v. Department of Professional Regulation, Board of Medicine, 574 So.2d 153, 156-57 (Fla. 1st DCA 1990).

       
       

   92. In determining whether the physician has met this obligation the Board must "apply neither a local or national standard, but the Florida statutory standard" set forth in subsection (1)(m) of Section 458.331, Florida Statutes. Robertson v. Department of Professional Regulation, Board of Medicine, 574 So.2d at 156-57. Accordingly, even if a physician's recordkeeping practices are consistent with those accepted and followed by similarly situated physicians in the physician's community, the physician is not immune from prosecution under subsection (1)(m) of Section 458.331, Florida Statutes, if such practices run afoul of the requirements of that statutory provision.

       
       

   93. In the instant case, the record evidence clearly and convincingly establishes that Respondent failed to include in her medical records the following information upon which she relied in deciding what course of action to follow in her care and treatment of L.K.: that L.K., in addition to her other complaints, also complained to Respondent that she had pain in her lower back; that L.K. told Respondent that, before her fall, she had been feeling fine and had not been experiencing any chest pains or dizziness; and that Respondent conducted a thorough physical examination of L.K., which revealed no significant abnormalities. The record evidence also clearly and convincingly establishes that Respondent omitted from her medical records any mention of the instructions she gave L.K. and her companions upon sending L.K. home.

       
       

   94. In failing to document such information, Respondent violated subsection (1)(m) of Section 458.331, Florida Statutes, as alleged in Count Two of Administrative Complaint, and she should be disciplined therefor. 16/

       
       

   95. The Board is now, and was at all times material to the instant case, authorized to impose one or more of the following penalties for a violation of subsection (1) of Section 458.331, Florida Statutes: license revocation; license suspension; restriction of practice; an administrative fine not to exceed $5,000.00 for each count or separate offense; a reprimand; probation; a letter of concern; corrective action; and a refund of fees billed to and collected from the patient. Section 458.331(2), Fla. Stat.

       
       

   96. In determining which of these penalties the Board should select, it is necessary to consult Chapter 59R-8, Florida Administrative Code, which contains the disciplinary guidelines adopted by the Board. Cf. Williams v. Department of Transportation, 531 So.2d 994, 996 (Fla. 1st DCA 1988)(agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).

       
       

   97. Subsection (2) of Rule 59R-8.001, Florida Administrative Code, sets forth "the range of penalties which will routinely be imposed" for a "single count violation" of each of the statutory provisions listed.

       
       

   98. For a "single count violation" of subsection (1)(m) of Section 458.331, Florida Statutes, the normal "range of penalties," as prescribed by subsection (2) of Rule 59R-8.001, Florida Administrative Code, is a minimum of a reprimand up to a maximum of a two year suspension of the physician's license, followed by probation, and an administrative fine.

   99. Subsection (3) of Rule 59R-8.001, Florida Administrative Code, provides that the Board may impose a penalty outside the normal range where there are mitigating or aggravating circumstances.

       
       

   100. The mitigating or aggravating circumstances that, according to subsection (3) of Rule 59R-8.001, Florida Administrative Code, may warrant such a deviation are as follows:

        
        

        1. Exposure of patient or public to injury or potential injury, physical or otherwise:

           none, slight, severe or death;

        2. Legal status at the time of the offense: no restraints or legal constraints;

        3. The number of counts or separate offenses established;

        4. The number of times the same offense or offenses have previously been committed by the licensee . . .;

        5. The disciplinary history of the . . . licensee in any jurisdiction and the length of practice;

        6. Pecuniary benefit or self-gain inuring to the . . . licensee;

        7. Any other relevant mitigating factors.

        
        

   101. Subsection (1) of Rule 59R-8.001, Florida Administrative Code, provides that "[m]ultiple counts of the violated provision or a combination of the violations may result in a higher penalty than that for a single, isolated violation."

        
        

   102. Having carefully considered the facts of the instant case, in light of the statutory and rule provisions set forth above, the Hearing Officer concludes that, for having committed the violation of subsection (1)(m) of Section 458.331, Florida Statutes, alleged in Count Two of the Administrative Complaint, Respondent should be issued a reprimand.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board of Medicine enter a final order dismissing Count One of the Administrative Complaint, finding Respondent guilty of the violation of subsection (1)(m) of Section 458.331, Florida Statutes, alleged in Count Two of the Administrative Complaint, and disciplining her for having committed this violation by issuing her a reprimand.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 14th day of March, 1995.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1995.

ENDNOTES

1/ The hearing was originally scheduled to commence on July 19, 1994, but was twice rescheduled at Respondent's request.

2/ Effective July 1, 1994, pursuant to Chapter 93-129, Laws of Florida, the Agency was transferred the authority that the Department had previously possessed to regulate the practice of medicine in this state, including the licensure of those engaging in such practice. On that date, it therefore became the Department's successor in this proceeding.

3/ Petitioner's Exhibits 10 and 12 were marked for identification at the Agency's request, but were not offered into evidence.

4/ In view of this position taken by the Agency in its proposed recommended order, all documents comprising Petitioner's Exhibit 14 other than the September 30, 1993, letter are deemed to have been withdrawn.

5/ This is not the only letter concerning Respondent's eligibility for ABIM certification that was included in the composite exhibit that the Agency offered at hearing as Petitioner's Exhibit 14. A letter dated June 11, 1993, from the ABIM to Aventura Hospital and Medical Center was also made a part of the composite exhibit. It reads as follows:

This is in response to your letter which we received on June 11, 1993. The Board's policy is to confine the information it will provide to confirmation of a physician's Certification or Board Eligible status.

The Board now recognizes the term Board Eligible which is defined as the status conferred by ABIM at the time a candidate is first forwarded notice of admission to an examination. It indicates that the candidate has completed the required training, has been rated as having satisfactory clinical competence by the faculty responsible for that training and that all other credentialing requirements have been met.

The Board eligible status will be of limited duration. Candidates for certification in Internal Medicine will be considered Board Eligible for four attempted examinations or for a period of six years, whichever limit is reached first.

Dr. Mazzella is not certified as a Diplomate in Internal Medicine.

However, she has been considered Board Eligible in Internal Medicine since 1989.

6/ Even if there was competent substantial record evidence sufficient to support a finding that, at the time of hearing, contrary to Respondent's testimony, she was not board-eligible, the existence of such evidence would not cause the Hearing Officer to alter any of the factual findings made in this Recommended Order.

7/ Notwithstanding its name, the UCC was equipped more like a physician's office than a hospital emergency room.

8/ L.K. was an insulin-dependent diabetic.

9/ Osteopenia is a condition characterized by a significant decrease in bone mass that makes the affected bones more susceptible to fracture.

10/ Most elderly women suffer from some degree of osteoporosis.

11/ Humana/Bennett Hospital had a contract with Humana to provide services to Humana members requiring hospitalization.

12/ L.K.'s hemoglobin was 6.9 grams. A normal hemoglobin is approximately 13 grams. A low hemoglobin may be caused by chronic blood loss, acute blood loss, or failure of the bone marrow to adequately produce blood cells.

13/ A low blood pH can result from low blood pressure.

14/ There was, according to the Autopsy Report, "approximately 90 percent intimal atherosclerosis of the mid-portion of the left anterior descending coronary artery."

15/ While it is beyond dispute that L.K. had pelvic fractures that Respondent did not see on L.K.'s x-rays, the record evidence fails to establish that L.K. did not also have, in addition to these fractures, a lumbosacral sprain.

16/ In failing to document the findings of her physical examination of L.K., Respondent acted in derogation of the requirements of subsection (1)(m) of Section 458.331, Florida Statutes, notwithstanding that she was following the recordkeeping practice of "charting by exception," which is not uncommon in hospital emergency room and walk-in clinic settings. That other similarly situated physicians may routinely "chart by exception" does not make the practice consistent with the requirements of subsection (1)(m).

APPENDIX TO RECOMMENDED ORDER

The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the parties in their proposed recommended orders:

The Agency's Proposed Findings

1-6. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

1. Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact.

2. Accepted and incorporated in substance.

9-10. Rejected as findings of fact because they are more in the nature of summaries of testimony adduced at hearing than findings of fact.

11. First sentence, after last comma: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact; Remainder: Accepted and incorporated in substance.

1. (The Agency's proposed recommended order does not contain a proposed finding of fact 12). Accepted and incorporated in substance.

2. To the extent that this proposed finding states that L.K.'s "temperature had dropped to 85 degrees Fahrenheit," it has been rejected because it lacks sufficient evidentiary/record support. Remainder: Accepted and incorporated in substance.

3. Not incorporated in this Recommended Order because the outcome of the instant case would the same regardless of whether it is true..

16-18. Accepted and incorporated in substance.

1. Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. Rejected because it lacks sufficient evidentiary/record support.

3. First sentences: Rejected because it lacks sufficient evidentiary/record support; Second sentence: Not incorporated in this Recommended Order because the outcome of the instant case would the same regardless of whether it is true; Third sentence: Rejected as a finding of fact because it is more in the nature of argument regarding Respondent's evidentiary presentation than a finding of fact.

4. Not incorporated in this Recommended Order because the outcome of the instant case would the same regardless of whether it is true.

Respondent's Proposed Findings

1-3. Accepted and incorporated in substance.

4. Fourth sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remainder: Accepted and incorporated in substance.

5-8. Accepted and incorporated in substance.

9. Last sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remainder: Accepted and incorporated in substance.

10-13. Accepted and incorporated in substance.

14. First and fourth sentences and second sentence, to the extent that it states that L.K. was "an insulin dependent diabetic:" Accepted and incorporated in substance; Remainder: Not incorporated in this Recommended Order because the outcome of the instant case would the same regardless of whether it is true.

15-16. Accepted and incorporated in substance.

1. First sentence: Rejected as a finding of fact because it is more in the nature of a recitation of the allegations against Respondent; Second sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the Agency's evidentiary presentation than a finding of fact; Third, fourth and fifth sentences: Accepted and incorporated in substance; Sixth sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. First sentence: Rejected as a finding of fact because it is more in the nature of a recitation of the allegations against Respondent; Second sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the Agency's evidentiary presentation than a finding of fact; Remainder: Accepted and incorporated in substance.

3. First sentence: Rejected as a finding of fact because it is more in the nature of a recitation of the allegations against Respondent; Second and third sentences: Accepted and incorporated in substance; Fourth sentence:

   Not incorporated in this Recommended Order because the outcome of the instant case would the same regardless of whether it is true; Fifth sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the Agency's evidentiary presentation than a finding of fact.

4. Accepted and incorporated in substance.

5. First sentence: Rejected as a finding of fact because it is more in the nature of a recitation of the allegations against Respondent; Second sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the Agency's evidentiary presentation than a finding of fact.

6. Accepted and incorporated in substance.

7. Last sentence: Rejected because it lacks sufficient evidentiary/record support; Remainder: Accepted and incorporated in substance.

8. First sentence: Rejected as a finding of fact because it is more in the nature of a recitation of the allegations against Respondent; Second

   sentence: Not incorporated in this Recommended Order because the outcome of the instant case would the same regardless of whether it is true; Third sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact; Remainder: Accepted and incorporated in substance.

9. First sentence: Not incorporated in this Recommended Order because the outcome of the instant case would the same regardless of whether it is true; Accepted and incorporated in substance.

10. First and second sentences: Accepted and incorporated in substance; Third sentence: Not incorporated in this Recommended Order because the outcome of the instant case would the same regardless of whether it is true.

COPIES FURNISHED:

Joseph S. Garwood, Esquire Britt Thomas, Esquire Agency for Health Care

Administration

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

James S. Haliczer, Esquire Lawrence E. Brownstein, Esquire COONEY, HALICZER, MATTSON, LANCE,

BLACKBURN, PETTIS & RICHARDS, P.A.

P.O. Box 14546

Fort Lauderdale, Florida 33302

Dr. Marm Harris, Executive Director Board of Medicine

Agency for Health Care Administration

1940 North Monroe Street Tallahassee, Florida 32399-0792

Harold D. Lewis, Esquire General Counsel

Agency for Health Care Administration

The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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

Docket for Case No: 94-001872

Orders for Case No: 94-001872