STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2038

)

JOHN L. TYNER, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on May 1, 1996, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Steven Rothenburg, Esquire

Agency for Health Care Administration 9325 Bay Plaza Boulevard, Suite 210

Tampa, Florida 33619

For Respondent: A.S. Weekley, Jr., M.D., Esquire

Suite 800, Tampa Commons

One North Dale Mabry Highway Tampa, Florida 33609

STATEMENT OF THE ISSUE

The issue for consideration in this hearing is whether Respondent's license as a physician in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.

PRELIMINARY STATEMENT

By a two-Count Administrative Complaint filed in this case on November 7, 1994, Larry G. McPherson, Jr., Chief Medical Attorney for the Agency For Health Care Administration, (Agency), on behalf of the Board of Medicine, (Board), alleged that between 1980 and 1985, Respondent, Dr. John L. Tyner, failed to keep adequate written medical records justifying his treatment of patient M.C., and practiced medicine below acceptable medical standards with regard to that patient, in violation of Sections 458.331(1)(m) and (t), respectively.

Respondent demanded formal hearing on the allegations and this hearing ensued.

At the hearing, Petitioner introduced Petitioner's Exhibits 1 through 4; Exhibit 2 was the transcript of the deposition of Dr. Jerry Ciocon, a physician specializing in internal medicine and geriatrics. Respondent testified in his own behalf and presented the testimony of Drs. Kent R. Corral and Paul R.

Winters, a Board certified internist and Board certified neurologist, respectively. By deposition identified as Respondent's Exhibits A and B, Respondent also presented the testimony of Drs. Mark S. Stern and David R. Nateman, the former regional medical director for Humana Health Care Plans in Tampa and the latter a specialist in emergency medicine. In addition to those two depositions, Respondent introduced Respondent's Exhibits C through G.

A transcript of the proceedings was furnished and thereafter both counsel submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, Petitioner, Board of Medicine, was the state agency responsible for the licensing of physicians in Florida and the regulation of the medical profession in this state. Respondent was licensed as a physician in Florida under license No. ME 0013461.

   
   

2. Respondent started his practice in January, 1970 after completion of his internship and medical residency. After four years practice in Tampa he moved to Brandon in 1974 at the request of members of the community. At the time of his arrival in Brandon he was only the third physician in town and he practiced for five years without there being a hospital available locally. By the time the hospital opened in Brandon, there were 10 physicians actively practicing there. Though he has his own practice, contracts with managed care providers account for about fifty percent of Respondent's practice.

   
   

3. Dr. Tyner can and does diagnose and treat patients with diabetes mellitus as a part of his practice. As far as he is concerned, the standard of care in diagnosis has not changed much since he entered practice, but the standard of care in treatment has. In his opinion, the standard of care is not the same throughout the country. By the same token, the standard with regard to medical records has changed, too. When Respondent first started practice, a physician was required to insert just pertinent positive findings in his records, but the insurance companies have encouraged greater completeness in recent years.

   
   

4. Respondent first saw M.C. for back pain on September 17, 1976, when the patient was 35 years old. At that time the patient reported he had undergone two back surgeries and was 100 percent disabled. During the first visit, Respondent received the patient's prior records from the referring physician in Louisiana, which records included a history of the covered worker's compensation injury to the back, and Respondent did certain diagnostic tests, including leg raises. These leg raises indicated back problems. These records were sent to the patient's attorney when a claim was filed against the Respondent, but though the records Respondent had prepared were returned, those of the prior physician were not. Respondent also took his own history of the patient from where the prior records left off.

   
   

5. When Respondent first saw this patient, M.C. was bitter about his prior medical care and extremely resentful of physicians. He limited Respondent's focus to the injury covered by worker's compensation and initially refused to discuss or be tested for anything not related thereto and for which he might be liable for fees. The patient was so hostile, in fact, he struck out at another physician, Dr. Winters, in Respondent's presence. According to Respondent, this was not at all unusual for this patient who evidenced a definite "attitude" toward physicians and tended to disbelieve what he was told.

6. Respondent encouraged the patient to lose weight because of his obesity. When the patient came in for his second visit with Respondent on September 28, 1976, he had lost some weight. On the December 16, 1976 visit, the patient had lost some more weight and the physical exam done at that time was normal, except for the fact that the patient's back still hurt.

   
   

7. Respondent's records reflect he next saw the patient on October 6, 1977 when the patient had lost another seven pounds. At this time, Respondent recommended the patient lose still more weight, but his examination showed no other problems at that time. Respondent claims that he spoke with M.C. on either the first or second visit about the benefits of a complete routine physical work-up but the patient refused to allow it. Respondent also claims he repeated this suggestion several times but the patient always refused except to agree to small things for which he was not to be charged. None of these suggestions for examinations are documented in the patient records.

   
   

8. On March 28, 1978 the patient showed another weight loss and his blood pressure was coming down. The patient's back pain had moved a bit and he had a penile rash and a cough, both of which were corrected. On the September 1, 1978 visit the patient had a sinus infection and he also asked for a prescription for his wife, a prior patient of the Respondent. Respondent did not charge the patient for this visit. When the patient returned on November 14, 1978, he complained of continuing back pain as he did on February 20, 1979. On this latter occasion, Respondent treated him with a mild tranquilizer and pain medication.

   
   

9. When the patient came in or August 2, 1979, he was cautioned by Respondent about the toxic effect of the Darvon compound he was taking, but apparently the patient was not addicted. The visit on March 25, 1980 reflected the patient's weight was still going down but he was still experiencing back pain. At the visit on August 22, 1980, the patient was seen to have a cyst on his shoulder which was removed at no charge on a visit on August 28, 1980.

   
   

10. Starting with the visit on December 4, 1980, the patient complained of greater leg pain with pins and needles in his left foot. Respondent gave him medications for that and adjusted his other medications to avoid any potential for addiction. This radiculated pain was, in Respondent's opinion, consistent with the patient's low back problems, and the patient continued to experience this low back pain at the visit on January 23, 1981 and, with greater severity, on February 19, 1981.

    
    

11. On March 12, 1981, since the patient's pain had increased, the Respondent recommended a repeat myelogram, to which the patient agreed though he refused anything else. He would not submit to an EKG, to blood work, or to urinalysis. The myelogram administered on April 2, 1981 showed only degenerative changes to the patient's spine for which Respondent recommended physical therapy. Because the patient had difficulty getting along with the physical therapy staff, he did not complete the prescribed course of treatment.

    
    

12. Respondent again saw the patient on August 4, 1981 because he had re- injured his back and had seen an orthopedic specialist who recommended a treatment which was ineffective. At the visit on January 7, 1982, the patient reiterated to Respondent that he was 100 percent disabled and told Respondent his daughter had left home. By this point, the patient seemed to have somewhat warmed up to the Respondent and was more amenable to conversation about matters other than his worker's compensation covered injury. At the March 22, 1982

    visit, the patient's back seemed slightly better, and at the August 31, 1982 visit the patient reported his pain was controlled by medications.

    
    

13. When the patient came in for a visit on September 14, 1982, he complained of dark blood in his urine and at ejaculation. Even though this was not a workers compensation related problem, the Respondent treated the patient and did not charge for it. At the November 5, 1982 visit the patient asked that the substance of their discussion not be included in the medical record. It cannot be determined whether this discussion pertains to that relating to the patient's daughter or to his condition, but in either case, it is indicative of the patient's desire to control the relationship. Respondent recalls that he frequently spoke to the patient about the need for laboratory work, but each time he did so, he claims, it would make the patient angry and the Respondent tip-toed around that subject.

    
    

14. On March 7, 1983 the patient was still reporting back pain, as he did at the October 13, 1983 visit. On February 16, 1984, the patient reported having tingling in his toes and a loss of strength in his legs. These symptoms are consistent with atrophy of the nerves which could be due to the patient's back problem. When he came in on March 27, 1984, the patient still complained of weakness in his legs and difficulty with an erection which the Respondent felt was related to his prior infection. Impotence can also be the result of diabetes.

    
    

15. The visit on June 15, 1984 revealed nothing significant, but at the visit on September 24, 1984, the patient again complained of back pain and a numbness in both feet up to the knees. He also complained of numbness in two fingers which Respondent felt was a carpal tunnel problem due to the patient's use of a cane. On March 6, 1985, the patient complained of numbness of the calf and in his hands up to his elbows, the latter which Respondent felt to be related to carpal tunnel problems and the patient's back problems.

    
    

16. At the visit on May 18, 1985, the patient finally agreed to a blood sugar test which reflected an abnormally high reading of 320. Respondent claims this is not a remarkably high reading sufficient to cause panic, but it is, nonetheless, far above normal. At this time, the Respondent started the patient on Glucotrol, a medication designed to force his pancreas to produce more insulin because Respondent concluded that the patient was a Type II diabetic.

    In Respondent's opinion, this is the treatment of choice for these symptoms. No evidence was presented in opposition to this opinion, and it is accepted.

    
    

17. Diabetes is a metabolic condition wherein the blood sugar level is high or elevated because the patient has no insulin or is insulin deficient. The sugar remains high in the patient's blood and affects the patient's organs and, possibly, the nerves. The patient can develop numbness, tingling or

    discomfort in the feet. Diabetes can affect the patient's eyes and cause a loss of vision. It can also affect the heart, can block circulation and cause a tendency toward heart attack, stroke and poor leg circulation. It can also affect the kidneys.

    
    

18. A Type II diabetic can be treated with medications, diet and exercise. With the treatment prescribed by Respondent, the patient's blood sugar came down somewhat, but not enough. Though the notes of the visit on July 12, 1985 revealed nothing significant, the records show that on August 20, 1985, the patient came in with a lesion on the base of his foot, an infected split of the callous, due, Respondent believed, to the patient's dragging his foot when he walked. In any event, the patient showed toes which were not normal for a

    diabetic. As a result, the Respondent did another blood sugar test on the patient which reflected another high reading of 295 which Respondent felt was due to the infection. He cleaned and cultured the wound and treated it with antibiotics. Renal function studies done at the time were normal and not consistent with diabetes.

    
    

19. On August 26, 1985, the patient reported numbness in his feet and cold hands. That same day the patient was admitted to the Humana Hospital-Brandon where he was diagnosed as having diabetes mellitus. During the course of the patient's hospitalization he was seen by at least six physicians other than the Respondent. Respondent referred the patient to four of these, including a Dr. Jacobson, and Dr. Jacobson referred the patient to two others.

    
    

20. On August 31, 1985, Dr. Grant, whose specialty was not identified, prepared a consultation report on this patient based on his independent thorough examination. In his report, Dr. Grant described the patient as "interesting and difficult" and rendered his opinion that the patient had a history of neuropathy involving the spinal thalamic tract with an etiology of syphilis, leprosy, amyloidosis, toxic exposure, "and much less likely, diabetes." Dr. Grant went on to state, "I say less likely for the diabetes because of [the patient's] relatively short history and rather severe neuropathy."

    
    

21. Sometime thereafter, at a time not indicated, M.C. lost his foot. The Department's initial complaint form refers to uncontrolled diabetes as the basis therefor, but the only evidence to this effect is hearsay which cannot be used as the sole basis for a finding of fact.

    
    

22. Many of the symptoms demonstrated by the patient are symptoms of diabetes, but they are also symptoms of other conditions as well. The obesity is consistent with diabetes, but not necessarily indicative of it. The numbness in the feet may be a symptom of diabetes, but also may be explained by other conditions the patient had. By the same token, his blood sugar is symptomatic of diabetes but is also frequently found as a result of infection which, it should be noted, the patient had at the same time the blood sugar was elevated.

    
    

23. Respondent did not use many of the tests he could have used earlier on in his course of treatment of this patient, such as finger-stick blood tests, urinalysis and vibratory tests with a tuning fork, all of which are inexpensive or without cost, and can be done in the office. He did not do so because, he claims, the patient, for a long time after the beginning of their relationship, refused to allow him to do anything not related to his worker's compensation injury. Nonetheless, Respondent kept the patient on because the man needed help and there was no place else for him to go. Respondent's finances were not then and are not now a major concern of the Respondent, and he, therefore, does not practice medicine based on his ability to collect a fee.

    
    

24. Respondent did not note in his medical records his repeated urging to have the patient submit to tests which could have identified his diabetes earlier on. Though Respondent recognizes the importance of keeping adequate medical records, at the time in issue, Respondent claims, there was far less emphasis than now on a physician protecting himself by record keeping. Neither Respondent nor his witnesses were taught in medical school what now seems to be, "If it's not recorded, it didn't happen." He considers that axiom, merely "something [doctors] go by to protect [themselves]."

    
    

25. The Respondent's expert, Dr. Stern, confirms this more recent emphasis on the documentation of detail in medical records, especially with respect to

    people declining or refusing certain tests or procedures. In his opinion, Dr. Tyner's records contain adequate justification for his prescription of Darvon and Librium for this patient.

    
    

26. Dr. Stern reviewed the patient records and discussed, on several occasions, the Respondent's actions. It was his opinion, stated in the deposition admitted at hearing that, having considered the symptomology the patient was displaying, that is: the high blood sugar, the numbness in the feet, the tingling in the feet and thighs, the coldness of the toes, and the fact that the patient was overweight, all those symptoms are indications of the possibility of diabetes mellitus, but all may be caused by other conditions as well.

    
    

27. There are several low cost tests that a physician can use when confronted with the symptoms displayed by this patient. These include a finger- stick test to test for blood sugar, urinalysis, and a vibratory sensation test. In addition, a referral to an endocrinologist could well be helpful. Dr. Tyner did at least one finger-stick test for blood sugar which revealed an abnormally high reading, but without relying on hindsight, Dr. Stern cannot say that, under the circumstances faced with this patient by Dr. Tyner, he would have ordered any more laboratory tests than Respondent did. With hindsight, he can now say he would have.

    
    

28. Petitioner's expert, Dr. Ciocon, noted that a straight leg raising test, (Laesege) can be used to confirm the diagnosis of a pinched nerve, but did not find the Respondent had used it. In fact, this was done by Respondent early on in his relationship with the patient and the test indicated nerve root compression caused by something other than diabetes.

    
    

29. Dr. Ciocon also described a numbness in the patient's leg as noted by Respondent as being of the "stocking glove" type which Ciocon indicated was indicative of diabetes. It is also an indication of other conditions and is frequently seen in alcoholics, and some medical authorities have concluded it is not a classical sign of diabetes. In the instant case, when M.C. demonstrated this symptom, Dr. Ciocon felt it was compatible with the carpal tunnel syndrome which was causing difficulty with his fingers.

    
    

30. Dr. Kent R. Corral, a general internist practicing in Tampa, treats diabetes mellitus routinely and regularly. He contends there is a school of thought in medicine to the effect that control of the illness may or may not affect the development of the complications of diabetes. These complications are classed in various groups dealing with:

    
    

    1. retinlogy ---------- changes in the retina

       
       

    2. nephropathy -------- changes in the kidneys

       
       

    3. neuropathy --------- changes in the nerves

       
       

    4. athero-sclerosis ---- changes in vascular condition. The only study in the subject, one done as a result of the Diabetes Control and Complication Trial which deals with juvenile diabetes under control, indicates that strict control will impact the progress of diabetes. The majority of thought within the profession is otherwise, however.

       
       

31. Dr. Corral evaluated Respondent's care of the patient in issue here and he is familiar with the standard of care of diabetes patients in the mid

    1970's to the mid 1980's. He feels that Respondent's treatment of M.C. was up to the standards in place at that time, as was Respondent's record keeping.

    
    

32. Respondent's records show the date of diagnosis of diabetes and that the conditions leading to the diabetic condition had been ongoing for a number of years prior to that time. Diabetes mellitus may be totally asymptomatic or symptoms may very much be in evidence.

    
    

33. According to Dr. Corral, not every aspect of every patient encounter need be documented by the prudent physician. This applies to both positive and negative findings. Respondent's records show this patient had undergone two lumbar laminectomies prior to coming to the Respondent. This surgery impacts the spinal nerves which deal with the lower extremities. Relief of pressure appears to be the reason for these laminectomies done secondary to a work- related injury resulting in 100 percent disability of the patient.

    
    

34. The pressure in issue in M.C. is called nerve root pressure. Symptoms of this include dysesthesia, a numbness, burning, tingling and pain in the extremities. It is similar to neuropathy, but different, Corral opines. Nerve root compression can be caused by a laminectomy as well as by post-surgery scarring. The scarring, the laminectomy and the nerve root compression can all create symptoms similar to diabetes but which, in these cases, are not caused by diabetes. In fact, there are many causes for these symptoms which are not related to diabetes. These include the presence of heavy metals, alcohol, peripheral vascular disease, arthritis, lupus, cancer, other metabolic disorders, and infections, including syphilis. All can cause tingling, pain, numbness and coldness in the lower extremities.

    
    

35. Though a vibrating sensation can be tested in the lower extremities by the use of a tuning fork, Dr. Corral has not found this to be a useful test and he now uses a monofilament test which he has found to be better - a touch test. This test would not have been available in the late 1970's to mid 1980's, however. The loss of vibratory sensation is common to all the conditions cited above and loss of vibratory sense in a leg or foot would not be useful in diagnosing diabetes. In the case of M.C., Respondent's failure to test for vibratory sensation was not, in Dr. Corral's opinion, treatment below the appropriate standard of care.

    
    

36. M.C. had developed a foot ulcer in August, 1985. On May 18, 1985, Respondent had already diagnosed diabetes through the use of a blood sugar test and had started treatment for the condition. Foot ulcers can be caused by diabetes as well as by many other conditions including infections, toxics, neuropathies, vascular diseases, arterial and venous disease, lymphedema, pressure necrosis, and syphilis.

    
    

    CONCLUSIONS OF LAW

    
    

37. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

38. Petitioner has alleged that during the period 1980 to 1985, Respondent practiced medicine, with regard to patient M.C., at a level below acceptable medical standards, in violation of Section 458.331(1)(t), and at the same time, failed to keep adequate written medical records justifying his treatment of that patient, in violation of Section 458.331(1)(m), Florida Statutes.

39. Under the provisions of the above-cited statute, the Board is authorized to discipline the medical license of any practitioner who violates any of the provisions of Section 458.331(1), Florida Statutes, by:

    
    

    1. Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, test results, records of drugs prescribed, dis- pensed, or administered; and reports of con- sultations and hospitalizations, and

       (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment, which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.

       
       

40. Ordinarily, discipline of a professional license requires the Department to show by clear and convincing evidence that the Respondent has violated the cited provision of the statute alleged. Ferris v. Turlington, 510 So.2d 292 (Fla.1987). In the instant case, however, the Department has asserted it does not seek to impose permanent revocation or suspension of Respondent's license to practice medicine in this state. Under the provisions of Section 458.331(3), Florida Statutes:

    
    

    In any administrative action against a physician, which does not involve revocation or suspension of license, the division shall have the burden, by the greater weight of the evidence, to establish the existence of grounds for disciplinary action.

    
    

41. Whether the standard is "clear and convincing" or "by the greater weight of the evidence", here the Petitioner has failed in its burden to establish that Respondent is guilty of either "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."

    
    

42. While the period 1980 to 1985 is not ancient history, and while standards have not been modified drastically in the interim, it must be recognized that Respondent's treatment of this patient occurred in excess of a decade ago. The evidence indicates clearly that the patient in issue here was a difficult patient to deal with who, rightly or wrongly, severely limited the options available to Respondent as his physician, and Respondent would have at his own peril exceeded the limits placed upon him by his patient.

    
    

43. In addition, the evidence demonstrates that Respondent saw the patient as needed, recommended what he believed to be adequate and comprehensive treatment, administered those tests which he believed were appropriate and to which his patient would submit, and even provided some treatment without charge to the patient. It must be noted that many of the symptoms which the patient demonstrated, while consistent with diabetes mellitus, were also consistent with the condition and the problems for which the patient had originally come to the Respondent for treatment. While those physicians who now review the practice of the Respondent with the benefit of hindsight can find fault with what he did or

    failed to do, they have not demonstrated that faced with the same situation, and without the clarity of hindsight, they would have done any differently. In fact, those physicians who testified on behalf of the Respondent, all of who are accepted as highly qualified, experienced physicians, claim they would have done what Respondent did under the circumstances he faced. To be sure, Dr. Ciocon, the Department's expert, saw failings in the Respondent's performance, but his opinion, in light of the totality of the evidence, is not persuasive.

    
    

44. On the other hand, exactly those difficulties which were described above as contributing to the difficulty of Respondent's treatment of this patient gravitate toward imposing on him a higher responsibility to insure that his records were complete and justified the course of treatment followed. This is not because of the risk of subsequent suit, as was seen here to be a real threat, but because of the inherent risk in treating a recalcitrant patient that all necessary and pertinent information might not be given to the physician by the patient. Faced with a patient who appeared as hostile to the medical establishment as this patient, who went so far as to assault another physician in Respondent's presence, adequate record keeping standards would dictate that every recommendation for test or treatment be documented, especially those rejected by the patient. The Respondent's records do not include sufficient information in that regard.

    
    

45. The disciplinary guidelines of the Board of Medicine are found at Rule 59R-8.061, (formerly 61F6-20,001), F.A.C., and provide a range of penalties for proven violations of the statute. The punishment imposed, if any, should serve as a deterrent to both Respondent and other licensees, to prevent acts of misconduct from occurring in the future.

    
    

46. In the instant case, for the offense of failing to keep the appropriate records to justify his course of treatment of the patient, the Petitioner recommends that Respondent pay an administrative fine of $2,500 within ninety days of the entry of a Final Order, and complete the medical records-keeping course offered by the University of South Florida within one year of the Final Order. The administrative fine of $4,500, the eight hours of continuing medical education and the reprimand proposed for the allegation of substandard practice are not pertinent in light of the Conclusions of Law drawn here.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a Final Order in this matter finding Respondent, John L. Tyner, M.D. not guilty of practicing medicine below standards, but guilty of keeping inadequate records, and imposing a fine of

$2,500 as well as requiring him to complete the medical records course offered by the University of South Florida, both within reasonable time limits to be imposed by the Board.

DONE and ENTERED this 6th day of June, 1996, 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 6th day of June, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2038

To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Not a proper quotation of the authority cited.

2. & 21. Accepted and incorporated herein.

   1. Not proven.

   2. & 24. Accepted and incorporated herein.

      1. Accepted.

      2. & 27. Accepted and incorporated herein.

28. Rejected as contra to the evidence or record.

Respondent's Proposed Findings of Fact.

1. Accepted and incorporated herein.

2. Rejected as not being a proper Finding of Fact.

3. Accepted and incorporated herein.

4. - 7. Accepted and incorporated herein.

1. Not a Finding of Fact but a statement of the allegation being discussed.

2. & 10. Accepted and incorporated herein.

   1. Not a Finding of Fact but a statement of the allegation being discussed.

   2. - 18. Accepted and incorporated herein.

19. & 20. Accepted and incorporated herein.

21. & 22. Accepted.

23. & 24. Accepted and incorporated herein.

COPIES FURNISHED:

Steven Rothenburg, Esquire Agency for Health Care

Administration

9325 Bay Plaza Boulevard, Number 210

Tampa, Florida 33619

A.S. Weekley, Jr., M.D., Esquire Shofi, Smith, Hennen & Gramovot, P.A. Tampa Commons, Suite 800

One North Dale Mabry Highway Tampa, Florida 33609

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.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION BOARD OF MEDICINE

AGENCY FOR HEALTH CARE ADMINISTRATION, BOARD OF MEDICINE,

Petitioner,

AHCA CASE NO: 9211935

1. DOAH CASE NO: 95-2038

   LICENSE NO: ME 0013461

   JOHN L. TYNER, JR., M.D.

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   THIS MATTER was heard by the Board of Medicine (hereinafter Board) pursuant to Section 120.57(1)(b)10., Florida Statutes, on August 2, 1996, in Orlando, Florida, for consideration of the Hearing Officer's Recommended Order (Attached as App. A), Respondent's written Exceptions to the Recommended Order (Attached as App. B), and Petitioner's written Response thereto (Attached as App. C) in the case of Agency for Health Care Administration, Board of Medicine v. John L. Tyner, Jr., M.D. At the hearing before the Board, Petitioner was represented by Larry G. McPherson, Jr., Chief Medical Attorney. Respondent was not present and was represented by A.S. Weekley, Jr., Esquire. Upon consideration of the Hearing Officer's Recommended Order after review of the complete record and having been otherwise fully advised in its premises, the Board makes the following findings and conclusions:

   RULING ON BOARD'S EXCEPTION TO FINDINGS OF FACT

   
   

   1. The Board took exception to the findings of fact of the Hearing Officer in paragraph 22 of the Recommended Order, indicating those findings were not supported by competent, substantial evidence of record. The Board's Exception to paragraph 22 of the Recommended Order of the Hearing Officer is hereby GRANTED. The findings of the Hearing Officer were not supported by competent, substantial evidence of record, and paragraph 22 of the Recommended Order is hereby deleted.

RULING ON RESPONDENT'S EXCEPTION TO FINDINGS OF FACT

1. The Respondent's Exception to paragraph 35 of the Recommended Order of the Hearing Officer which found that Respondent failed to test for vibratory sensation, is GRANTED for the reasons set forth in the Respondent's Exceptions. Specifically, the finding of the Hearing Officer was not supported by competent, substantial evidence of record. The phrase "Respondent's failure to test for vibratory sensation ..." is changed to state "Respondent's failure to test for vibratory sensation early on in the treatment of M.C.

FINDINGS OF FACT

1. The Hearing Officer's Recommended Findings of Fact as set forth in the Recommended Order are amended as reflected in the rulings on Respondent's Exceptions and, as amended, are approved and adopted and are incorporated herein by reference as the Findings of Fact of the Board in this cause.

   
   

2. There is competent, substantial evidence to support the Board's findings herein.

RULINGS ON RESPONDENT'S EXCEPTIONS TO CONCLUSIONS OF LAW

1. The Respondent's exception to paragraph 39 of the Recommended Order is GRANTED in part and REJECTED in part. The Respondent's exception that paragraph

   39 of the Recommended Order incorrectly cites Section 458.331(1)(m), Florida Statutes, is GRANTED. The Hearing Officer should have cited Section 458.331(1)(n), Florida Statutes, rather than Section 458.331(m), Florida Statutes, as the statute in effect at the time of the violations alleged. The citation to Florida Statutes is amended to reference Section 458.331(1), Florida Statutes (1980), which states:

   
   

   1. Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, and test results.

   
   

   The remainder of the Respondent's Exception to paragraph 39 is REJECTED for the reasons set forth in the Petitioner's written Responses.

   
   

2. The Respondent's exceptions to paragraph 44 of the Recommended Order are REJECTED for the reasons set forth in Petitioner's oral and written responses.

CONCLUSIONS OF LAW

1. The Board has jurisdiction over the parties and subject matter of this case pursuant to Section 120.57 and Chapter 45-8, Florida Statutes.

   
   

2. The findings of fact set forth above do not establish that Respondent has violated Section 458.331(1)(t), Florida Statutes as charged in the Administrative Complaint.

   
   

3. The findings of fact set forth above do establish that Respondent has violated Section 458.331(1)(n), Florida Statutes.

   
   

4. The Conclusions of Law of the Recommended Order are amended as reflected in the rulings on Respondent's Exceptions, and, as amended, are approved and adopted and incorporated herein.

DISPOSITION

Based upon the Recommended Findings of Fact and Conclusions of Law of the Hearing Officer, the Board hereby determines that pursuant to Rule 59R-8, Florida Administrative Code, the penalty recommended by the Hearing Officer is appropriate as set forth in the Recommended Order, with the following amendments:

1. The fine shall be paid within thirty days of the filing of the Final Order in this cause.

   
   

2. The Respondent shall complete the medical records course which is offered by the Florida Medical Association, rather than the University of South Florida, within one year of the filing of the Final Order.

WHEREFORE, it is found, ordered and adjudged that the Respondent is not guilty of violating Section 458.331(1)(t), Florida Statutes, and this allegation is DISMISSED; however, the Respondent is guilty of violating Section 458.331(1)(n), Florida Statutes. The Board imposes the following penalty:

1. Within thirty (30) days of the filing of the Final Order in this cause, the Respondent shall pay an administrative fine in the amount of two thousand five hundred ($2,500) dollars to the Board of Medicine.

   
   

2. Within one (1) year of the filing of the Final Order in this cause, the Respondent shall complete the course "Quality Medical Record Keeping for Health Care Professionals" sponsored by the Florida Medical Association.

This Final Order becomes effective upon its filing with the Clerk of the Agency for Health Care Administration.

NOTICE

The parties are hereby notified pursuant to Section 120.59(4), Florida Statutes, that an appeal of this Final Order may be taken pursuant to Section 120.68, Florida Statutes, by filing one copy of a Notice of Appeal with the Clerk of the Agency for Health Care Administration and one copy of a Notice of Appeal with the required filings fee with the District Court of Appeal within thirty (30) days of the date this Final Order is filed.

DONE and ORDERED this 6th DAY OF September, 1996.

BOARD OF MEDICINE

MARY KATHRYN GARRETT, M.D. CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order and its attachments have been forwarded by US Mail to John L. Tyner, Jr. M.D.,

500 Vonderburg Drive, #303, Brandon, Florida 33511-5999, A.S. Weekley, Jr., M.D., Esquire, Suite 800, Tampa Commons, One North Dale Mabry, Tampa, Florida 33609, Arnold H. Pollock, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550 and by hand delivery to Larry G. McPherson, Jr., Chief Medical Attorney, Agency for Health Care Administration, 2727 Mahan Drive, Building 4, P.O. Box 14229, Tallahassee, Florida 32317 on this 12th day of September, 1996.

Marm Harris, Ed.D. Executive Director

Docket for Case No: 95-002038

Orders for Case No: 95-002038