STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, BOARD )

OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 94-6930

) MARC STEPHEN FRAGER, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on April 20, 1995, in Boca Raton, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Hugh R. Brown, Esquire

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

Tallahassee, Florida 32399-0792

For Respondent: Jeffrey T. Royer, Esquire

Michael Ockerman, Esquire 1/ Buckingham, Doolittle & Burroughs, P.A. 2499 Glades Road, Suite 313

Boca Raton, Florida 33431 STATEMENT OF THE ISSUES

1. Whether Respondent committed the violation of Section 458.331(1)(t), Florida Statutes, alleged in the Administrative Complaint?

   
   

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

PRELIMINARY STATEMENT

On September 26, 1994, the Agency for Health Care Administration (hereinafter referred to as the "Agency") issued an Administrative Complaint against Respondent, a Florida-licensed medical doctor specializing in endocrinology, alleging that, in connection with his care and treatment of Patient L.Y., he violated Section 458.331(1)(t), Florida Statutes, "in that [he] failed to adequately assess Patient L.Y.'s condition, failed to timely perform a biopsy or excision of Patient L.Y.'s thyroid nodule, and failed to appropriately diagnose Patient L.Y.'s thyroid cancer." In the Administrative Complaint, the Agency indicated that it was "request[ing that] the Board of Medicine enter an Order imposing one or more of the following penalties: permanent revocation or

suspension of the Respondent's license, restriction of the Respondent's practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, and/or any other relief that the Board deems appropriate."

Respondent denied the allegations of wrongdoing made against him in the Administrative Complaint and requested a formal hearing. On December 12, 1994, the Agency 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 April 20, 1995. At the hearing, a total of three witnesses testified: Hamilton Fish, M.D., a Florida-licensed physician, board- certified in internal medicine and in endocrinology and metabolism, who gave expert testimony on behalf of the Agency; Albert Cohen, M.D., a Florida- licensed physician, board-certified in anatomic and clinical pathology, who gave fact and expert testimony on behalf of Respondent; and Respondent. In addition to the testimony of these three witnesses, the parties offered a total of five exhibits (Petitioner's Exhibits 1 through 4 and Respondent's Exhibit 1) into evidence at hearing.

Without objection, the record was left open for Respondent to offer, and the Hearing Officer to receive, an additional exhibit, an affidavit from William Abelove, M.D., stating that he is an endocrinologist and that, at all times that he treated L.Y., he did so in his capacity as an endocrinologist. Such an affidavit was filed on May 3, 1995.

The deadline for the filing of post-hearing submittals was set at 30 days from the date of the Hearing Officer's receipt of the transcript of the final hearing. The Hearing Officer received the hearing transcript on May 11, 1995. Respondent and the Agency timely filed proposed recommended orders on Friday, June 9, 1995, and Monday, June 12, 1995, respectively.

The proposed recommended orders submitted by the parties each contain, what have been labelled as, "findings of fact." These proposed "findings of fact" are specifically addressed in the Appendix to this Recommended Order.

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 July 1, 1980, an endocrinologist licensed to practice medicine in the State of Florida. His license number is ME 0036628. At no time during the period that he has been licensed to practice medicine in the State of Florida has he had any disciplinary action taken against him by the Board of Medicine.

   
   

3. Respondent is board certified in internal medicine, nuclear medicine and endocrinology and metabolism.

   
   

4. At all times material to the instant case, Respondent was in private practice in Palm Beach County, Florida.

5. One of his patients was L.Y., who, at the time of her first visit, was

   75 years of age.

   
   

6. L.Y. had been treated by at least two other endocrinologists, Rachmel Cherner, M.D., and William Abelove, M.D., for a thyroid abnormality before being referred to Respondent for treatment.

   
   

7. A physical examination of L.Y. conducted during a visit to Dr. Cherner's office in Pennsylvania in early September of 1984, revealed that there was "a firm three centimeter nodule in the inferior pol[e] of the right lobe" of L.Y.'s thyroid gland and that the "inferior margin of the gland apparently dip[ped] substernal." 2/

   
   

8. Dr. Cherner ordered a thyroid uptake and scan.

   
   

9. The uptake and scan were performed on September 5, 1984.

   
   

10. Dr. Cherner received the following report of the results of the uptake and scan:

    
    

    Thyroid studies were performed following the oral administration of 100 uCi. of Iodine 123 on 9/5/84.

    
    

    The thyroid uptake is 15 percent at 4 hours and 41 percent at 24 hours.

    
    

    The 24 hour value is in the high/normal to slightly elevated range for this age group.

    
    

    Visualization of the thyroid reveals the gland to be prominent due to enlargement of the right lobe. There is a relatively homogeneous distri- bution of nuclide in a normal size left lobe.

    The right lobe is slightly enlarged and bulboused. There is marked nuclide irregularity laterally suggesting one or more "cold" nodules. 3/ There is slightly increased activity noted inferiorly

    in the right lobe but this finding is less impressive.

    
    

11. In February of 1985, L.Y. was seen by Dr. Abelove in Dr. Abelove's office in Coral Gables, Florida. Dr. Abelove's notes relating to the visit read as follows:

    
    

    [L.Y.] is a 71 year old female, resident of Delray Beach, Florida, referred by Dr. Cherner in Jenkintown for thyroid follow-up. [L.Y.] was found by Dr. Cherner to have enlargement of the right lobe of the thyroid gland. On September 5, 1984, he had a thyroid uptake and scan done at Abington Memorial Hospital. Uptake at four hours was 15 percent and at twenty-four hours

    was 41 percent. Thyroid scan disclosed the right lobe to be enlarged and bulboused with marked [n]uclide irregularity suggesting one or more cold nodules.

    [L.Y.] clinically is euthyroid. She has been on Hydrodiuril 50 mg. once daily in the AM and Valium

    5 mg. prn for some time. Weight is stable.

    Physical examination disclosed slight stare but

    no significant tremors. Skin was dry. Palms were warm and dry. The right lobe of the thyroid gland was irregularly enlarged to about two and one-half to three times normal size. Left lobe was normal. The gland was not tender. Heart and lungs were okay. Reflexes were normal.

    
    

    I think [L.Y.] has a nodular goiter involving the right lobe of her thyroid gland. The uptake of radioactive iodine was marginal at 41 percent and she does have a slight stare but clinically no other findings compatible with hyperthyroidism.

    Her goiter has not increased in size and she has no hoarseness or dysphagia.

    
    

    Dr. Cherner felt that observation was indicated and he planned to repeat her thyroid scan. I will be in contact with him and advise her accordingly.

    
    

12. Pursuant to Dr. Abelove's orders, an uptake and scan of L.Y.'s thyroid were performed on April 26, 1985, the results of which were reported as follows:

    
    

    The scan shows enlarged nodule over the base of the right lobe of the thyroid gland. This nodule [is] hypofunctioning 4/ when compared with the adjacent right and left lobes. The uptake values at 4 and 24 hours are 10.5 percent . . . and 23.1 percent . . . respectively. These are within euthyroid range.

    
    

    OPINION: Thyroid uptake and scan

    1. Hypofunctioning nodule right thyroid lobe.

    2. Thyroid uptake within euthyroid range.

       
       

13. L.Y. next visited Dr. Abelove on November 14, 1985. Dr. Abelove's notes relating to this visit read as follows:

    
    

    [L.Y.] returns for a follow-up visit. In late April of this year, she had a thyroid uptake

    and scan done at the Bethesda Memorial Hospital. Thyroid function was normal The scan disclosed a hypofunctioning nodule.

    
    

    [L.Y.] remains asymptomatic. She's aware of the presence of the nodule and on physical examination it is unchanged. It involves the right lobe only and is somewhat irregular with the lobe being 2 1/2 times normal size. She denies any dysphagia or hoarseness. Weight is stable. Clinically, she is euthyroid.

    
    

    She remains on Hydrodiuril 50 mg once daily in the a.m. and Valium 5 prn.

    MHP ordered for today. My recommendation is a trial on thyroid suppression using Synthroid

    0.05 mg once daily. 5/ Will call the results of the MHP to her tomorrow. I've asked [L.Y.] to call me in about 2 months and let me know

    if she notices any change on Synthroid 0.05 daily.

    
    

14. Dr. Abelove next saw Respondent on May 21, 1987. His notes relating to this visit read as follows:

    
    

    [L.Y.] returns for a follow-up visit, having been seen last in November of 1985. She remains on Synthroid 0.05 mg daily. Clinically, she

    is euthyroid. Examination of her neck shows little change. The right lobe is irregularly enlarged and approximately 2 1/2 times normal size. The left lobe is not significantly palpable. Heart and lungs are okay.

    
    

    [L.Y.] is also on Hydrodiuril 50 mg once daily and calcium. I suggested that she have a complete work up while she is here. MHP, EKG, chest x-rays and dual photon absorption densi- tometry were ordered. We will discuss the findings with her when everything is completed in several days. In the meantime, she is to increase Synthroid to 0.1 daily. She was given

    Rxs for Hydrodiuril 50 mg to be taken once daily. We will speak to her next week. She finds it extremely difficult to drive here from Delray Beach as it takes her 2 hours. I am going to give her the name of an endocrinologist in Boca whom she can see for follow-up.

    
    

15. Respondent was the "endocrinologist in Boca" to whom Dr. Abelove referred L.Y. 6/

    
    

16. L.Y. first presented to Respondent on November 22, 1988. At the time of the visit, Respondent did not have any of L.Y.'s prior medical records.

    
    

17. At the outset of the visit, Respondent took a history from L.Y. 7/

    
    

18. L.Y. told Respondent that she had a thyroid "nodule" that Drs. Cherner and Abelove had monitored for the past five years and that she had been advised that there was a "low chance" that the "nodule" was malignant. 8/

    
    

19. Respondent then conducted a physical examination of L.Y. As part of the examination, he palpated L.Y.'s thyroid and noted a "prominent nodule 9/ in the lower pole of the right lobe."

    
    

20. Based upon the history provided by L.Y. and his physical examination of her, Respondent reasonably believed that she had a multinodular goiter.

    
    

21. Multinodular goiters are not uncommon in elderly persons.

22. Unless they are characterized by a dominant mass, they generally have a low potential for malignancy. Accordingly, they are not always biopsied.

    
    

23. Multinodular goiters that are not biopsied, however, should be carefully monitored, with particular attention paid to any changes in their size or the pattern of their growth that may be indicative of the presence of a carcinoma.

    
    

24. Accurate measurements are necessary to determine if such changes have taken place. It is impossible to obtain such accurate measurements simply by physical examination where, as was situation in L.Y.'s case, a portion of the thyroid lies beneath the sternum. In such instances, a CAT scan or ultrasound must be performed to get the needed information.

    
    

25. Consistent with the approach Drs. Cherner and Abelove had taken, Respondent did not perform or order a "fine-needle" biopsy 10/ or any other type of biopsy to ascertain whether L.Y. had thyroid cancer. Instead, he instructed L.Y. to continue to take thyroid suppression medication and to return to his office for reevaluation on at least an annual basis.

    
    

26. At no time during, or in conjunction with, this initial visit did Respondent order a CAT scan or ultrasound or otherwise attempt to obtain any measurements of L.Y.'s thyroid.

    
    

27. On October 24, 1989, L.Y. returned to Respondent's office for a follow-up visit.

    
    

28. Respondent examined L.Y., but did not order a CAT scan or ultrasound or otherwise attempt to obtain any measurements of L.Y.'s thyroid.

    
    

29. He determined that L.Y.'s "right prominent thyroid nodule [was] unchanged from last year," notwithstanding that he did not have the benefit of any measurements upon which to base such a conclusion.

    
    

30. Respondent did not discover anything during L.Y.'s October 24, 1989, visit to cause him to perform or order a biopsy or to otherwise alter his course of care and treatment of L.Y. He continued L.Y. on thyroid suppression medication and asked her to return to his office for a follow-up visit in approximately a year.

    
    

31. L.Y. made such a visit on November 12, 1990.

    
    

32. Once again, Respondent examined L.Y., but failed to order a CAT scan or ultrasound or otherwise attempt to obtain any measurements of L.Y.'s thyroid.

    
    

33. As he had done during L.Y.'s previous visit the year before, Respondent determined that the "thyroid nodule in her right lobe was unchanged," although he did not possess any measurements that would support such conclusion.

    
    

34. Respondent did not discover anything during L.Y.'s November 12, 1990, visit to cause him to perform or order a biopsy.

    
    

35. In light of the results of recent blood tests that L.Y. had taken, Respondent adjusted the dosage of L.Y.'s thyroid suppression medication.

    
    

36. He made no other changes to her treatment regimen as a result of her November 12, 1990, visit.

37. L.Y. made an unscheduled visit to Respondent's office on October 4, 1991, complaining of pain and inflammation near the medial aspect of her clavicle. Examination of her neck revealed marked swelling, which led Respondent to suspect that L.Y. had sustained a clavicular fracture. Respondent referred L.Y. to the emergency room of Delray Community Hospital for x-rays and treatment.

    
    

38. L.Y. went to the emergency room. X-rays were taken. In addition, a CAT scan, which was ordered by the emergency room physician, was performed.

    
    

39. The radiologist who read the CAT scan stated the following in a written report of his findings:

    
    

    There is a 7 mm [sic] well circumscribed inhomogeneous mass 11/ that replaces the right lobe of the thyroid. This is charac- terized by multifocal areas of low attenuation. 12/ There is marked left sided displacement

    of the trachea. The left lobe of the gland is unremarkable.

    
    

    CONCLUSIONS:

    7 cm 13 inhomogeneous right thyroid mass.

    This may represent goiter with degenerated adenomas. But carcinoma cannot be excluded. 14/

    
    

40. The radiologist's report supported Respondent's view that L.Y. had a multinodular goiter and it did not contain any information that caused Respondent to suspect that L.Y. had thyroid cancer. Respondent, however, was unable to evaluate the significance of the finding that the "thyroid mass" described in the report was now "7 cm" inasmuch as he did not have any prior measurements of the full extent of this "mass" and therefore could not ascertain whether this "7 cm" measurement represented a significant increase in the size of the "mass."

    
    

41. After consulting with the emergency room physician who had seen L.Y., Respondent prescribed Voltaren, an anti-inflammatory medication, for L.Y. and instructed her to return for a follow-up office visit in ten days. No biopsy was performed or ordered.

    
    

42. L.Y. returned to Respondent's office on October 14, 1991, and was examined by Respondent. The swelling that Respondent had noted during L.Y.'s October 4, 1991, visit had "disappeared." The examination further revealed that L.Y.'s thyroid was "still enlarged." Respondent continued to believe that L.Y.'s enlarged thyroid was nothing more than a multinodular goiter with a low potential for malignancy and that it therefore did not need to be biopsied. Accordingly, no biopsy was performed or ordered.

    
    

43. L.Y.'s next visit to Respondent's office was on September 4, 1992.

    
    

44. During this visit, L.Y. reported that she felt well and that she was "having no further trouble with her clavicle."

    
    

45. At the time of the visit, her weight was 121 pounds, seven and a half pounds less than she weighed on her last visit and thirteen pounds less than she weighed on her initial visit to the office on November 22, 1988. L.Y.

    attributed her weight loss to her having "changed her diet and markedly cut down on her intake of fat," a reasonable explanation that Respondent accepted.

    
    

46. Respondent's examination of L.Y. revealed that she still had a "huge right thyroid lobe," which, in Respondent's opinion, had not changed since the last time he had seen her. Respondent, however, did not order a CAT scan or ultrasound or otherwise attempt to obtain the current measurements of this "huge right thyroid lobe" to see if it had grown since the October 4, 1991, CAT scan.

    
    

47. L.Y. next visited Respondent's office on October 2, 1992. This was an unscheduled visit.

    
    

48. Upon presenting at the office, L.Y. indicated that she was very concerned about her "thyroid nodule" because she felt that it was changing.

    
    

49. Respondent's examination of L.Y.'s neck revealed a "huge thyroid mass." Respondent believed the "mass" to be "unchanged from prior examinations." Nonetheless, given L.Y.'s concerns, Respondent performed a "fine needle" biopsy "to determine the histology of this lesion."

    
    

50. In waiting almost four years from the time of L.Y.'s initial visit to his office to perform such a biopsy, without having ordered, during this period of time, the CAT scans or ultrasounds that were necessary to properly monitor L.Y.'s multinodular goiter, Respondent acted in a manner that was inconsistent with what a reasonably prudent endocrinologist would have recognized as being acceptable and appropriate under the circumstances.

    
    

51. The aspirate material collected from the biopsy was sent to a pathologist, Albert Cohen, M.D., for analysis.

    
    

52. Dr. Cohen analyzed the biopsied aspirate and made the following findings, which he set forth in a written report:

    
    

    Multiple slides and fluid from cell block from thyroid aspiration biopsy showing markedly cellular aspirate with clusters of thyroid follicular cells some of these in papillary configuration and others scattered in a loose fashion. In addition there are large numbers of giant cells with many of the cells in the cell block showing mitotic activity. The differential diagnosis in this case is of a poorly differentiated neoplasm with giant

    cell features, including medullary, papillary or undifferentiated carcinoma.

    
    

    NOTE: Due to the marked cellularity and the giant cell formation of this aspirate, surgical excision is strongly recommended.

    
    

53. The presence of giant cells in the biopsied aspirate indicated that

    L.Y. had an anaplastic carcinoma, which is an extremely aggressive and fast growing form of cancer. 15/ The prognosis for patients with an anaplastic carcinoma of the thyroid is very poor. The average life expectancy of such patients is approximately seven months from the time of diagnosis.

54. L.Y. returned to Respondent's office on October 8, 1992. Respondent informed her of the results of the biopsy and suggested that she undergo a thyroidectomy. L.Y. indicated that she wanted to discuss the matter with her family before deciding whether to have the procedure performed in Florida or New York.

    
    

55. In February of 1993, L.Y. died as a result of a metastatic carcinoma of the thyroid.

    
    

    CONCLUSIONS OF LAW

    
    

56. 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.

    
    

57. 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.; Nair v. Department of Business and Professional Regulation, 20 FLW D983 (Fla. 1st DCA April 21, 1995); 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).

    
    

58. 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).

    
    

59. 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).

    
    

60. 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).

    
    

61. The Administrative Complaint issued in the instant case alleges that, in connection with his care and treatment of L.Y., Respondent violated Section 458.331(1)(t), Florida Statutes, "in that [he] failed to adequately assess Patient L.Y.'s condition, failed to timely perform a biopsy or excision of Patient L.Y.'s thyroid nodule, and failed to appropriately diagnose Patient L.Y.'s thyroid cancer."

    
    

62. The Agency had the burden of proving Respondent's guilt of this violation of Section 458.331(1)(t), Florida Statutes, by clear and convincing

    evidence, rather than by a preponderance of the evidence, inasmuch as the Administrative Complaint seeks, among other penalties, the revocation or suspension of Respondent's medical license.

    
    

63. 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."

    
    

64. The Agency has clearly and convincingly established that Respondent acted in a manner that was inconsistent with what a reasonably prudent endocrinologist would have recognized as being acceptable and appropriate under the circumstances by waiting almost four years from the time of L.Y.'s initial visit to his office to perform a biopsy of the nodular material on the right lobe of L.Y.'s thyroid, without ordering, in the interim, the CAT scans or ultrasounds that were necessary to properly monitor L.Y.'s thyroid condition.

    
    

65. In so doing, Respondent violated subsection (1)(t) of Section 458.331, Florida Statutes, as alleged in the Administrative Complaint, and he should be disciplined therefor.

    
    

66. 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.

    
    

67. 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).

    
    

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

    
    

69. For a "single count violation" of subsection (1)(t) of Section 458.331, Florida Statutes, the normal "range of penalties," as prescribed by subsection (2) of Rule 59R-8.001, Florida Administrative Code, is "[f]rom two

    (2) years probation to revocation or denial, and an administrative fine from

    $250.00 to $5,000.00."

    
    

70. 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.

    
    

71. 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.

    
    

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

    
    

73. 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)(t) of Section 458.331, Florida Statutes, alleged in the Administrative Complaint, Respondent should be fined $2,500.00 and placed on probation for a period of two years, subject to those terms and conditions the Board deems appropriate.

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 finding Respondent guilty of the violation of subsection (1)(t) of Section 458.331, Florida Statutes, alleged in the Administrative Complaint, and disciplining him for having committed this violation by fining him $2,500.00 and placing him on probation for a period of two years, subject to those terms and conditions the Board deems appropriate.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of June, 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 16th day of June, 1995.

ENDNOTES

1/ Ockerman is a practicing attorney in the State of Ohio. He is not a member of The Florida Bar. Before allowing Ockerman to appear as a representative on Respondent's behalf in this proceeding, the Hearing Officer, in accordance with Rule 60Q-2.008, Florida Administrative Code, determined that Ockerman had the necessary qualifications to represent Respondent competently, responsibly and in a manner that would not impair the fairness of this proceeding or the correctness of the action to be taken.

2/ It is impossible to measure, by physical examination alone, the full extent of a thyroid nodule where a portion of the nodule is substernal. Only that portion of a thyroid nodule located above the sternum is susceptible to measurement by physical examination. Accordingly, it is not unreasonable to assume that, in stating that his physical examination of L.Y. revealed a "three centimeter nodule," Dr. Cherner meant that the nodule measured three centimeters above the sternum.

3/ A "cold" nodule is more likely to be cancerous than is a "hot" nodule." 4/ A hypofunctioning nodule is one that is characterized by diminished

function. A "cold" nodule is a hypofunctioning nodule that is characterized by greatly diminished function.

5/ That he made such a recommendation suggests that it was Dr. Abelove's belief that L.Y.'s "hypofunctioning nodule" was benign. A malignant lesion is likely to continue to grow in size despite thyroid suppression therapy, whereas a benign lesion is likely to shrink in response to such therapy. If a nodule, initially thought to be benign, does not shrink in response to thyroid suppression therapy, the nodule should be biopsied to determine if it is cancerous.

6/ Even after the referral, however, Dr. Abelove continued to monitor L.Y.'s progress.

7/ It does not appear from a review of Respondent's records on L.Y. that she indicated to him on this or any other visit that she had a history of neck irradiation.

8/ In a letter to Dr. Cherner, dated February 12, 1985, Dr. Abelove stated that "a doctor in Delray" had "frightened [L.Y.] over the possibility of malignancy," but that he, Dr. Abelove, had "reassured her that this was not very likely."

9/ Respondent and other endocrinologists sometimes use the term "nodule" to refer to a nodular mass consisting of multiple nodules.

10/ A "fine-needle" biopsy is a relatively easy procedure, with minimal complications, that is used to detect thyroid cancer. An accurate diagnosis is obtained in 80 to 95 percent of cases.

11/ A "well circumscribed" mass is a mass with definite boundaries that has not invaded outlying tissue.

12/ Areas of low attenuation on a CAT scan are indicative of tissues or other materials that have, to only to a very limited degree, absorbed the CAT scan beams passing through them. The level of attenuation of scanned tissue is a product of the tissue's density: the denser the tissue, the higher its level of

attenuation. Carcinomas, particularly those that are not experiencing rapid growth, may have tissues of differing densities and, as a result, appear on a CAT scan as areas with multiple levels of attenuation.

13/ Because a CAT scan will show the full extent of a nodular mass, even if a portion is substernal, it is reasonable to assume, absent any indication to the contrary, that this "7 cm" measurement, unlike the "three centimeter" measurement made by Dr. Cherner in September of 1984, was of the entire nodular mass, not just that portion located above the sternum.

14/ While a CAT scan may reveal certain features suggesting the presence of a carcinoma, it is improvident to entirely rule out the possibility of a carcinoma based exclusively upon the results of a CAT scan.

15/ There are three main types of thyroid cancer: papillary, which is the most common type; follicular; and anaplastic. Papillary cancer is characterized by slow growth. Follicular cancer grows at a somewhat faster rate. Anaplastic cancer is the fastest growing type of thyroid cancer and the only one which has giant cells. Papillary thyroid cancer is treatable, but if it is not treated in a timely manner it may develop into an anaplastic carcinoma, which is likely what happened in L.Y.'s case. While not all papillary or follicular carcinomas develop into anaplastic carcinomas, most anaplastic carcinomas develop from papillary or follicular carcinomas.

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. First sentence: Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order; Second sentence: Not incorporated in this Recommended Order because, even if true, it would not alter the outcome of the case.

2-21. Accepted and incorporated in substance.

22. Rejected because it lacks sufficient evidentiary/record support. 23-25. Accepted and incorporated in substance.

26. Not incorporated in this Recommended Order because, even if true, it would not alter the outcome of the case. (L.Y. was not Respondent's patient in 1984.)

27-28. Accepted and incorporated in substance.

29. Before comma: Not incorporated in this Recommended Order because, even if true, it would not alter the outcome of the case. (Respondent was dealing with, what he reasonably believed to be, a goiter that was multinodular); After comma: Accepted and incorporated in substance.

30-32. Accepted and incorporated in substance.

33. Rejected because it lacks sufficient evidentiary/record support. 34-40. Accepted and incorporated in substance.

41. To the extent that this proposed finding states that Respondent should have "biopsied the nodule" even if he had done the other things mentioned in the proposed finding, it has been rejected because it lacks sufficient evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.

42-43. Accepted and incorporated in substance.

1. Not incorporated in this Recommended Order because, even if true, it would not alter the outcome of the case. (It is the propriety of Respondent's conduct, not Dr. Cherner's or Dr. Abelove's, that is at issue herein.)

2. Rejected because it lacks sufficient evidentiary/record support. 46-48. Accepted and incorporated in substance.

Respondent's Proposed Findings

1-3. Accepted and incorporated in substance.

4. To the extent that this proposed finding states that "both Dr. Cherner and Dr. Abelove diagnosed L.Y. as having a multinodular goiter," as opposed to a goiter involving a single nodule, it has been rejected because it lacks sufficient evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.

5-7. Accepted and incorporated in substance.

8-9. To the extent that these proposed findings state that, not only did Dr. Abelove believe that the size of L.Y.'s goiter remained unchanged, in fact there was no change in the goiter's size, they have been rejected because they lack sufficient evidentiary/record support. Otherwise, they have been accepted and incorporated in substance.

1. Accepted and incorporated in substance.

2. To the extent that this proposed finding states that, not only did Respondent believe that the "size and other aspects of L.Y.'s goiter remained unchanged from her previous examination," in fact there was no such change, it has been rejected because it lacks sufficient evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.

3. To the extent that this proposed finding states that, not only did Respondent believe that the "size and other aspects of L.Y.'s goiter remained unchanged from her 1989 examination," in fact there was no such change, it has been rejected because it lacks sufficient evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.

4. Accepted and incorporated in substance.

5. To the extent that this proposed finding states that "[t]his measurement did not reflect an increase in the size of the goiter," it has been rejected because it lacks sufficient evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.

6. To the extent that this proposed finding states that, not only did Respondent believe that the "size and condition of L.Y.'s goiter had not changed from her previous examinations," in fact no such change had occurred, it has been rejected because it lacks sufficient evidentiary/record support.

   Otherwise, it has been accepted and incorporated in substance.

7. To the extent that this proposed finding states that, not only did Respondent believe that there was "no change in the size or condition of L.Y.'s goiter," in fact there was no such change, it has been rejected because it lacks sufficient evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.

8. To the extent that this proposed finding states that, not only did Respondent believe that the "huge thyroid mass [was] unchanged from prior examinations," in fact it was unchanged, it has been rejected because it lacks sufficient evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.

9. Accepted and incorporated in substance.

10. First and second sentences: Not incorporated in this Recommended Order because, even if true, they would not alter the outcome of the case.

20-21. Rejected as findings of fact because they are more in the nature of summaries of testimony adduced at hearing than findings of fact.

1. First sentence: 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; Second sentence: Accepted and incorporated in substance.

2. Accepted and incorporated in substance.

3. Last sentence: Accepted and incorporated in substance; Remainder: Rejected as a finding of fact because it is more in the nature of a summary of, and commentary on, material from a medical treatise used by Respondent, pursuant to Section 90.706, Florida Statutes, to cross-examine the Agency's expert witness. (Furthermore, "Section 90.706 does not allow statements in a learned treatise to be used as substantive evidence." Green v. Goldberg, 630 So.2d 606, 609 (Fla. 4th DCA 1993)).

4. 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.

5. Rejected as a finding of fact because it is more in the nature of a summary of, and commentary on, evidence adduced at hearing than a finding of fact.

6. Not incorporated in this Recommended Order because, even if true, it would not alter the outcome of the case.

COPIES FURNISHED:

Hugh R. Brown, Esquire Agency for Health Care

Administration

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Jeffrey T. Royer, Esquire Michael Ockerman, Esquire

Buckingham, Doolittle & Burroughs, P.A. 2499 Glades Road, Suite 313

Boca Raton, Florida 33431

Dr. Marm Harris, Executive Director Board of Medicine

Agency for Health Care Administration

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jerome H. Hoffman, 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: 94-006930

Orders for Case No: 94-006930