STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 96-0024

)

LEHEL KADOSA, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on December 9, 1997, in Tampa, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Albert Peacock, Esquire

Agency for Health Care Administration Legal Department

Post Office Box 14229 Tallahassee, Florida 32317-4229

For Respondent: Christopher J. Schulte, Esquire

Shear, Newman, Hahn & Rosenkranz, P.A.

201 East Kennedy Boulevard Suite 1000

Tampa, Florida 33629

Salvatore A. Carpino, Esquire Colonial Square Office Park 8001 North Dale Mabry Highway Suite 301-A

Tampa, Florida 33614

STATEMENT OF THE ISSUES

The issue for determination in this case is whether Respondent's license to practice medicine should be revoked or otherwise disciplined for the alleged violations of Section 458.331(1), Florida Statutes, set forth in the Administrative Complaint.

PRELIMINARY STATEMENT

On April 12, 1993, Petitioner, Department of Health, filed a ten-count Administrative Complaint (the "complaint") alleging that Respondent violated Section 458.331(1), Florida Statutes, during the course of his examination, diagnosis, and treatment of A.M., a 51-year-old female with a history of back and neck problems. The specific allegations were that Respondent failed to keep medical records justifying the course of treatment of the patient, in violation of Section 458.331(1)(m), Florida Statutes; ordered unnecessary and excessive testing of the patient, in violation of Section 458.331(1)(g), Florida Statutes; exercised influence on the patient in such a manner as to exploit the patient for his own financial gain, in violation of Section 458.331(1)(n), Florida Statutes; made or filed a report which he knew to be false, in violation of Section 458.331(1)(h), Florida Statutes; failed to practice medicine with an acceptable level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, in violation of Section 458.331(1)(t), Florida

Statutes; failed to perform a legal obligation by running a newspaper advertisement that did not comply with various statutory and rule requirements, as more fully discussed below, in violation of Section 458.331(1)(g), Florida Statutes, and former Rule

21M-24.001(2)(i), Florida Administrative Code (now Rule

64B8-11.001(2)(i), Florida Administrative Code); published false, deceptive, or misleading advertising, in violation of Section 458.331(1)(d), Florida Statutes; employed a trick or scheme in the practice of medicine, in violation of Section 458.331(1)(k), Florida Statutes; and printed office stationery falsely implying that Respondent has received formal recognition as a specialist in numerous aspects of the practice of medicine, in violation of Section 458.331(1)(x), Florida Statutes.

Respondent contested the allegations of the complaint, and filed a timely request for formal hearing. The matter was referred to the Division of Administrative Hearings on January 4, 1996. The case was initially set for hearing on March 14-15, 1996, but was continued several times. Formal hearing was conducted on

December 9, 1997. A Transcript of the hearing proper was filed on December 31, 1997.

At the conclusion of the formal hearing, the parties agreed to hold open the record for the taking of several depositions, including that of Respondent's expert, Nicholas T. Zervas, M.D. Prior to the deposition of Dr. Zervas, counsel for Respondent,

Mr. Carpino, died suddenly. Respondent was granted a lengthy delay

to secure new counsel. Mr. Schulte ultimately filed a notice of appearance on October 19, 1998, and the deposition proceeded.

At hearing, Petitioner presented the testimony of Patient A.M. and, by videotape, the testimony of John McCutchen, M.D., a

board-certified orthopedic surgeon. Petitioner filed the depositions of Stephen H. Miller, M.D.; Mary Louise Sanderson; and

1. Paul DeRosa, M.D., all taken for the purpose of authenticating certain of Petitioner's exhibits regarding Respondent's status as a specialist. Petitioner also presented nine exhibits, all of which were received in evidence. Petitioner’s Exhibit 9 was the videotape and transcript of Dr. McCutchen's testimony.

   At hearing Respondent presented the testimony of six witnesses: Joseph Uricchio, M.D., an orthopedic surgeon; Jerry Lyons, the owner of several magnetic resonance imaging and diagnostic centers; Thomas M. Reed, the licensed athletic trainer who performed therapy on Patient A.M.; Janie Reeher, Respondent's insurance collection and billing clerk; Melinda Kadosa, Respondent's daughter; and Rodney Thompson, Respondent's employee. Respondent also filed the deposition of Dr. Zervas, a neurosurgeon and professor of surgery at Harvard Medical School. Respondent offered no exhibits.

   On March 8, 1999, the Transcript of Dr. Zervas' deposition was filed. On April 9, 1999, Petitioner filed a Proposed Recommended Order. On April 13, 1999, Respondent filed a Proposed Recommended Order.

   FINDINGS OF FACT

   
   

   1. Petitioner, Department of Health, is the state agency vested with the statutory authority to enforce the disciplinary standards for the practice of medicine under Chapters 455 and 458, Florida Statutes.

   2. Respondent, Lehel Kadosa, M.D., is, and at all material times was, a physician licensed to practice medicine in Florida, having been issued license no. ME 0041277. At all relevant times, Respondent was the owner and operator of the Tampa Bay Back Institute, 7208 North Sterling Avenue, Tampa, Florida.

   3. The business stationery of the Tampa Bay Back Institute stated that Respondent is "Board Certified" in "Neurological & Orthopedic Surgery," "Pain Management," and "Neurothermography."

   4. Respondent is in fact not board-certified in neurological or orthopedic surgery by the American Board of Neurological Surgery or the American Board of Orthopedic Surgery.

   5. The American Board of Medical Specialties does not recognize a board of "pain management" or "neurothermography." Thus, no physician could claim to be "board certified" in those claimed specialties.

   6. Patient A.M. presented to Respondent on July 3, 1991, with subjective complaints of extreme pain in her neck, right shoulder, right arm, lower back, and right leg.

   7. Patient A.M. testified that she had suffered back and neck pain for 26 years, since she had a back spasm requiring

      hospitalization. She testified that due to a boating accident and a fall on the sidewalk, the pain had become more acute in the two years prior to her coming to Respondent. She testified that she had gone to at least five doctors over the years for her neck and back pain, but nothing they did offered her any lasting relief.

   8. Patient A.M. testified that she was at her "wit's end" when she called to make an appointment with Respondent. She needed something done then and there to help her problem, and was willing to do whatever was necessary to obtain relief for her back.

   9. Respondent was not seeing patients the week of July 1, 1991, because he was planning to leave for a visit to his native Hungary, and because he was overseeing renovations to his offices. However, Patient A.M. appeared to be in such severe pain and so desperate for relief that Respondent agreed to see her on July 3.

   10. On June 30, 1991, the Tampa Bay Back Institute had run an advertisement in the Tampa Tribune, touting its expertise in "non- surgical treatment of back pain, neck pain & headaches." The advertisement advised that immediate appointments were available and offered a "Free Initial Consultation." Respondent’s name did not appear in the advertisement. The advertisement did not contain the disclaimer language set forth in Section 455.24, Florida Statutes. The same advertisement appeared as late as the

       August 11, 1991, issue of the Tampa Tribune.

       
       

   11. Patient A.M. testified that she called Respondent specifically because of his newspaper advertisement, and that she

       knew nothing about Respondent other than the contents of the advertisement.

   12. Patient A.M. testified that the advertisement led her to expect not to be charged for the initial visit. She could not recall whether she mentioned the advertisement when she made the appointment over the telephone, or whether she brought the advertisement with her at the time of her appointment.

   13. Patient A.M. testified that she did remember making a point of telling Respondent's staff she was there as a result of the advertisement. She could not recall whether she discussed the matter directly with Respondent.

   14. Melinda Kadosa, Respondent’s daughter, testified that she was working in the office when Patient A.M. called for her first appointment. Ms. Kadosa testified that Patient A.M. never mentioned the advertisement; rather, she told Ms. Kadosa that she had heard of Respondent through other doctors and patients.

   15. Ms. Kadosa testified that the usual practice in Respondent’s office was to make a notation on the chart of any patient who mentioned the "free consultation." There was no such notation on the chart of Patient A.M.

   16. Respondent billed Patient A.M. for a "new patient comprehensive exam" in the amount of $200. Patient A.M. disputed this amount. She admitted that Respondent conducted a full physical examination, but believed that this examination should have been included as part of the "free initial consultation."

   17. There was inconclusive expert testimony as to whether the term "consultation" includes a physical examination. Dr. Joseph Uricchio testified that it depends on the context of the situation. Dr. John McCutchen testified that, in his opinion, "consultation" includes a physical examination, but conceded that there is "room for debate" on the question.

   18. The advertisement containing the questioned language was not directed at physicians but at laypersons; thus, expert testimony as to a physician's understanding of the term "consultation" is beside the point. The question is resolved by determining whether it was reasonable for Patient A.M., as a layperson of ordinary intelligence and experience, to believe that the term "free initial consultation" included the physical examination to which she admittedly consented.

   19. It is found that the term "free initial consultation" is at best ambiguous as to the services it encompasses, and that it was reasonable for Patient A.M. to expect that the "free initial consultation" would include a physical examination.

   20. Ms. Kadosa’s testimony that Patient A.M. made no mention of the advertisement is irrelevant. The advertisement itself made an unqualified offer of a "free initial consultation." There was no requirement that the prospective patient make reference to the advertisement in order to obtain the free services.

   21. Mr. Rodney Thompson, an employee of Respondent, testified that the advertisement was placed by a hired consultant, without

       the permission or approval of Respondent. He testified that the advertisement appeared in the Tampa Tribune three or four times, only on Sundays.

   22. Even crediting Mr. Thompson’s version of events, the analysis remains the same. Respondent was responsible for the advertising placed on behalf of his business by his paid consultant. Patient A.M. was in no position to know that Respondent had not approved the advertisement. Respondent made no effort to disclaim the advertisement. Indeed, Ms. Kadosa’s testimony indicated that Respondent honored the advertisement when patients specifically mentioned it.

   23. Prior to the initial examination, Patient A.M. filled out a "Patient’s History Form," in which she described her present complaints as "extreme pain in neck, right shoulder and arm, lower back, right leg." Patient A.M. also provided Respondent with a set of X-rays taken by one of her previous physicians.

   24. Respondent performed a physical examination on Patient

       
       

       A.M. of the head, ears, eyes, nose and throat, the thoracic cage, cervical spine, thoracic spine, and lumbar spine. Respondent also performed a neurological examination of Patient A.M.

   25. After performing the physical examination, Respondent ordered X-ray studies of the cervical, thoracic, and lumbosacral spine, pelvis, and right elbow.

   26. Based on the history, examination, and X-rays, Respondent recorded the following medical impressions: chronic cervical

       sprain/strain with myofascitis; chronic lumbosacral sprain/strain with myofascitis; spondylosis of the cervical and lumbosacral spine by X-ray studies; chronic lower back pain; right cervical radiculitis; right lumbosacral radiculitis; chronic sprain of the right elbow; bursitis of the right knee; degenerate disc disease, L5-S1; and arthritis of the sacroiliac joints. Respondent recorded that he expressly ruled out cervical reflex dystrophy of the right upper extremity.

   27. Based on the listed impressions, Respondent ordered the following tests:

       1. Cervical spine: magnetic resonance imaging ("MRI"), X-rays, and thermography.

       2. Thoracic spine: X-rays and thermogaphy.

          
          

       3. Lumbar spine: MRI, X-rays, and thermography.

          
          

       4. Right upper extremity: X-rays, thermography, nerve conduction velocity ("NCV") studies.

       5. Left upper extremity: X-rays, thermography, and NCV studies.

       6. Right lower extremity: thermography.

          
          

       7. Left lower extremity: thermography.

          
          

       8. Sacrum: X-rays.

          
          

   28. Patient A.M. testified that Respondent informed her, prior to ordering the listed tests, that they could cost thousands of dollars. She testified that at the time she didn't know what some of the tests were. Nonetheless, she agreed to undergo the

       tests, telling Respondent that she wanted to do "whatever was necessary in order to try to get some relief" for her back.

   29. Respondent also ordered a one-month course of physical therapy for Patient A.M. All three testifying experts agreed that the physical therapy was appropriate and well within the standard of practice.

   30. Patient A.M. did not complete the course of physical therapy. Patient A.M. only returned to Respondent’s office once, and never saw Respondent in person after the initial visit.

   31. The bulk of the relevant expert testimony concerned the timing and necessity of the listed tests. Petitioner presented the deposition testimony of John W. McCutchen, M.D., a Florida- licensed, board-certified physician in orthopedic surgery.

   32. Dr. McCutchen testified that he reviewed Respondent’s file on Patient A.M., though he did not see the actual X-rays or MRIs. From his review of the record, Dr. McCutchen saw no medical problems with the manner in which Respondent performed the physical on Patient A.M.

   33. Dr. McCutchen testified that he questioned the diagnosis of spondylosis of the cervical lumbosacral spine, because such a diagnosis requires X-ray studies and he saw no evidence in the record that X-rays had been taken.

   34. Dr. McCutchen was apparently unaware that Respondent was in possession of X-rays taken by one of A.M.’s previous physicians, and could have based his initial impression on those X-rays.

   35. Dr. McCutchen questioned Respondent’s ordering X-rays of the cervical, thoracic, and lumbar spine, because the record did not indicate the requisite complaint by Patient A.M. of mid- thoracic pain. However, Dr. McCutchen also testified that he did not have a "big objection" to the X-rays, merely that he would not have ordered them. He testified that these X-rays were within the standard of care.

   36. Dr. McCutchen testified that he had no argument with Respondent’s ordering X-rays of the lumbar spine, the pelvis, and the right elbow.

   37. Dr. McCutchen testified that the MRIs of the sacral spine and cervical spine ordered by Respondent were not indicated at this juncture of Patient A.M.’s treatment. He testified that he would first want to review the X-rays, and find that the X-rays show changes "that are severe in nature." He would also need to see the results of a neurological examination indicating "nerve root injury or disc rupture or something like that" to justify an MRI of the cervical and lumbar spine.

   38. The MRI report stated that A.M. had "loss and reversal of the normal lordotic curvature of the cervical spine, central disc herniation at the C5-6 level, disc bulges at the C3-4, 4-5

       and 6-7." Dr. McCutchen testified that this report merely confirmed that there were some disc bulges, and that these were normal for Patient A.M.’s age group.

   39. Dr. McCutchen testified that nothing in the MRI report justified Respondent’s ordering of the MRIs. There were no neurological symptoms, history, or any other indication for the MRI of the lumbar spine. He concluded that ordering the MRIs was an excessive diagnostic tool.

   40. Thermography is a technique for sensing and recording on color film hot and cold areas of the body by means of an infrared detector that reacts to blood flow, its intended purpose being to detect disease states that manifest themselves by increased or decreased blood flow.

   41. Dr. McCutchen was dismissive of thermography as a diagnostic tool. He testified that it was used years ago, but has been disused for the past ten to twelve years. He testified that the theory in cases such as Patient A.M.’s would be that the thermograph would show changes in skin warmth that in turn would indicate nerve dysfunction; however, he testified that thermography has proven inaccurate and of no value in providing any information to assist in the treatment of a patient.

   42. Even accepting arguendo that thermography works according to theory, Dr. McCutchen testified that nothing in the medical record indicated the neurological changes that would validate the need for thermography as a diagnostic tool.

   43. While Dr. McCutchen believed the thermography was completely useless, he testified that he was unaware of any

       standard in the medical community regarding the use of thermography.

   44. Dr. McCutchen next testified as to the need for the NCV studies on the arms and legs of Patient A.M. He stated that, to justify NCV studies, he would expect to see something in the record concerning nerve dysfunction in the affected areas.

   45. Dr. McCutchen testified that elements of nerve dysfunction would be some difficulty in the ability to move the extremities, or some weakness, atrophy or paralysis, or a loss of sensation in a nerve root. These elements would be discovered through the history and physical examination, but Dr. McCutchen testified that he saw no such documentation in the patient records.

   46. Dr. McCutchen testified that the neurological examination for Patient A.M. was grossly within normal limits for muscle tone, bulk, and strength of all major muscle groups of the upper and lower extremities. The deep tendon reflexes were within normal limits. Patient A.M. was able to walk in steps, on tiptoe, and heel walk within normal limits. Thus, Dr. McCutchen concluded there was no justification for ordering the NCV studies of the upper or lower extremities.

   47. Dr. McCutchen also noted that the records for Patient

       
       

       A.M. show no indication of an interpretation of the thermograms or of the NCV studies, although the billing records show charges for those interpretations.

   48. Dr. McCutchen concluded that a "variety of things" done by Respondent in the course of his treatment of Patient A.M. were "totally excessive." He testified that the patient presented with some cervical lumbar pain and some right arm pain, and received an unnecessary MRI of the lumbar spine and NCVs of all four extremities.

   49. Dr. McCutchen concluded that Respondent’s course of treatment fell below the level of care, skill, and treatment which is recognized by reasonably prudent similar physicians as acceptable under similar conditions and circumstances.

   50. Respondent presented the expert testimony of Joseph Uricchio, M.D., an orthopedic surgeon licensed in Florida since 1965. Dr. Uricchio testified that in recent years his practice has tended to specialize in patients with complaints of chronic pain similar to those of Patient A.M.

   51. After discussing the patient’s complaints and the diagnostic tests ordered by Respondent, Dr. Uricchio opined that, based upon his understanding of the facts, the ordering of the tests was within accepted standards of medical care in the practice of medicine in the State of Florida.

   52. Dr. Uricchio testified that his opinion was based on his understanding of the discussions that occurred between Respondent and Patient A.M. as to her complaints and desired outcome.

       Dr. Uricchio stated that his impression was that Patient A.M. told Respondent that her back problems were longstanding and that she

       was anxious to investigate any reasonable course of treatment that might eliminate her problem. Dr. Uricchio's understanding was generally consistent with the testimony of Patient A.M.

   53. Dr. Uricchio agreed that the gradual application of physical therapy for Patient A.M. was "singularly appropriate."

   54. Dr. Uricchio testified that, given this particular patient and her professed interest in finding the root cause of all her problems, it was within the range of acceptable medical practice to order NCV tests of the left arm; X-ray studies of the coccyx, pelvis, and thoracic spine; and thermography scans of the cervical spine, thoracic spine, upper extremities, lumbosacral spine, and lower extremities.

   55. Dr. Uricchio testified that it is unusual to order this array of tests for the typical patient, and admitted that he could not recall having ordered all these tests at once. However, he testified that ordering the tests was acceptable in this instance because Respondent was dealing with a patient who had a 25-year history of unexplained, chronic problems and a shorter history of increasing problems with her neck and back, with pain going into her extremities.

   56. Dr. Uricchio recalled Patient A.M.'s statements that she was "at her wit's end" and desperate to find out "what’s going on." He testified that this was an unusual set of circumstances and a difficult diagnostic and therapeutic challenge.

   57. Dr. Uricchio testified that NCV studies are legitimate diagnostic tools appropriate for a patient complaining of an unexplained pain radiating into an extremity, and that Patient A.M. had complained of arm, leg, and shoulder pain coupled with her longstanding neck and back pain. He testified that the NCV studies of the left arm were appropriate, though Patient A.M. complained of pain in her right arm.

   58. Dr. Uricchio testified that thermography is a test that has been done for a long time historically, and has enjoyed a "resurgence of interest" in the past 20 years. This testimony was in marked contrast to Dr. McCutchen’s testimony that thermography has fallen into disuse over the past ten years. Dr. Uricchio acknowledged that thermography is controversial in some areas, but that it is a well accepted, expected test to be run in cases of people dealing with chronic pain and chronic pain management.

   59. Dr. Uricchio testified that thermogaphy complements NCV testing. The NCV study tests motor nerves to determine if they are conducting nerve impulses well, while thermogaphy tests sympathetic nerves to determine if they are irritated.

   60. Dr. Uricchio testified that it was appropriate for Respondent to order both X-rays and MRIs because they show different things. X-rays give a picture of the bone. MRIs give a picture of the dural sac where the spinal cord and nerve roots run, showing the nerve roots as they go out between the bones.

       Dr. Uricchio testified that an X-ray would not reveal a herniated disc, but that an MRI would.

   61. Dr. Uricchio testified that if economy of medical care were a consideration, then a physician might take the course of ordering X-rays and examining those before ordering MRIs. However, because in this instance Patient A.M. appeared unconcerned about the cost of the procedures and was desperate to learn the cause of her condition, Dr. Uricchio found it acceptable to order both

       X-rays and MRIs at the same time.

       
       

   62. Dr. Uricchio concluded that the array of tests was justified because the tests are all different: the thermogram looks for sensory nerves or reflex sympathetic dystrophy; the X-ray looks at the integrity of the bone; the MRI finds whether there is a ruptured disc pinching a nerve; radiography or video fluoroscopy tests for abnormal motion or subluxations or any other change in the movement of the neck.

   63. Respondent also presented the testimony of Nicholas T. Zervas, M.D., a board certified neurosurgeon and the director of neurosurgery at Massachusetts General Hospital, Harvard Medical School. Dr. Zervas testified that his specialty is patients with brain tumors, though he also deals with spinal problems, disc problems, spinal tumors, peripheral nerve tumors, and general neurosurgery. Dr. Zervas testified that in his practice at Harvard Medical School he tends to treat difficult and complicated cases in

       which patients have seen a number of doctors without success and have moved "up the ladder of expertise."

   64. Dr. Zervas reviewed the patient records regarding Patient A.M., and concluded that she was a "problem patient" in that she had chronic pain for many years and had apparently seen a number of physicians without a specific diagnosis ever having been made.

   65. Dr. Zervas testified that with such a "problem patient," it is appropriate to do every reasonable, non-invasive test available to "cover the waterfront" and make sure that everything possible is being done to isolate the causes of the patient’s problems.

   66. Dr. Zervas testified that he has made little use of thermography in the last ten years. He further testified that in 1991, when Respondent ordered the tests, thermography was recognized within the medical community as an appropriate diagnostic study and was widely used. Dr. Zervas stated that his research indicated that the medical community’s reliance on thermography began to wane in about 1994, but that prior to that time there was "tons of literature on the value of thermography."

   67. Dr. Zervas testified that the thermography was the only test he would not have ordered. He disagreed with the suggestion that thermography went into disuse because it was inaccurate.

       Dr. Zervas stated that when MRIs and CT scanning came on the scene, they presented an easier way of finding things through direct

       imaging, replacing reliance upon the circumstantial evidence provided by thermography.

   68. Dr. Zervas justified Respondent’s ordering thermography as a "resort to secondary testing" to give him a hint as to whether this was nerve root disease, "since he wasn’t able to find a specific, positive, objective finding."

   69. Dr. Zervas’ justification for thermography in this case cannot be credited. The thermography was ordered at the same time as the other tests, before the results of the X-rays and MRIs could be read and interpreted to find "a specific, positive, objective finding." Thus, this "resort to secondary testing" was at best premature.

   70. Dr. Zervas testified that all of the tests ordered by Respondent were medically appropriate and within the standard of care, in light of Patient A.M.’s condition at the time she was examined by Respondent. Dr. Zervas testified that he often takes the same approach with such patients, utilizing all tests available that might show where an abnormality might lie, so that he can move ahead and begin treatment as soon as possible.

   71. Dr. Zervas found the numerous X-rays justified because it is difficult to isolate the source of chronic neck and back pain, meaning that X-rays of the cervical, thoracic, and lumbar spine, the pelvis, the sacrum, and the coccyx would be required to ensure that all possibilities were covered.

   72. Dr. Zervas found the MRIs of the cervical and lumbar spine an appropriate, non-invasive means of "trying to sort out what is present in the spinal canal and bones around it," as well as a means of ensuring that the cause of the pain is not a disc or a tumor.

   73. Dr. Zervas was questioned as to why NCV studies of both the left and right arms were appropriate, given that Patient A.M. complained of pain only in the right arm. Dr. Zervas answered that one of the first things taught in medical school is to compare side to side. If readings were done only on the right side, there would be no comparative basis for determining whether the readings were abnormal.

   74. Dr. Zervas testified that the X-rays and MRIs revealed extensive degenerative spinal disease in the neck and lumbar regions, more extensive in the cervical region, with extensive narrowing of the intervertebral frame, and bulging discs at several levels of the cervical and lumbar regions. Dr. Zervas believed these findings would be significant once correlated with the clinical syndrome.

   75. Dr. Zervas noted that the findings were significant enough to indicate surgery once she was seen by a neurosurgeon at a later date. He could not offer his own opinion on whether surgery was justified, saying that his own course would have been extensive physiotherapy and referral to a pain clinic.

   76. Dr. Zervas testified that in his opinion Respondent did not exercise influence on Patient A.M. to exploit her for his own financial gain.

   77. Dr. Zervas testified that Respondent did not deviate from the accepted standard of care in treating Patient A.M.

   78. Dr. Zervas testified that the records kept by Respondent justified his course of treatment of Patient A.M.

   79. It is found that the weight of the expert evidence establishes that all of the tests ordered by Respondent were clinically justified, except for the thermograms.

   80. All of the experts agreed that it is somewhat unusual for a physician to order X-rays, MRIs, and NCV studies simultaneously after a patient’s initial visit. However, it is found that these orders were clinically justified under the peculiar circumstances presented at Patient A.M.: longstanding back and neck pain having recently increased to the point where the patient described the pain as nearly unbearable; years of visits to various physicians without either relief from the pain or a specific diagnosis; and the patient’s express statements that she was unconcerned with the cost of treatment.

   81. It is found that Petitioner proved clearly and convincingly that thermography was an unnecessary diagnostic test. Even granting Dr. Zervas’ statements that thermography may be a useful "secondary" test in instances where primary tests are inconclusive, Respondent prematurely ordered the thermograms.

       Thermography might have been justified had the MRIs and NCV studies previously been reviewed and found inconclusive, assuming that thermography is of value at all.

   82. Dr. McCutchen’s testimony that thermography is of no value in providing information useful in patient treatment is credited, in part because even Dr. Zervas testified that he has made little or no use of thermography over the past decade, and

       Dr. Uricchio's endorsement was tempered by his acknowledgement that thermography is controversial.

   83. It is found that Respondent failed to keep sufficient records to fully explain the course of treatment that he ordered. The experts were forced to derive much of their information regarding the course of treatment from Respondent’s itemized billing records, because the actual medical records created by Respondent were too cursory to provide useful information.

   84. On a related issue, Petitioner alleged that Respondent billed Patient A.M. for services that were not rendered. Specifically, it is alleged that Patient A.M. was billed for interpretations of the X-rays, NCV studies, and thermographic scans, when these interpretations are not documented in the medical record.

   85. The weight of the evidence indicates that the interpretations were in fact performed, but that Respondent failed to document those interpretations in his medical records.

       CONCLUSIONS OF LAW

       
       

   86. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.569, 120.57(1), and 455.225, Florida Statutes.

   87. License revocation and discipline proceedings are penal in nature. The burden of proof on Petitioner in this proceeding was to demonstrate the truthfulness of the allegations in the complaint by clear and convincing evidence. Section 458.331(3), Florida Statutes; Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Department of Banking and Finance v. Osborne Stern & Co., 670

       So. 2d 932 (Fla. 1996).

       
       

   88. The "clear and convincing" standard requires:

       
       

       [T]hat the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. 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). The findings in this case were made based on the Ferris standard.

   89. Pursuant to Section 458.331(2), Florida Statutes, the Board of Medicine is authorized to revoke, suspend, or otherwise discipline the license of a physician for violating the following relevant provisions of Section 458.331, Florida Statutes:

       (1)(d) False, deceptive, or misleading advertising.

       
       

       (1)(g) Failing to perform any statutory or legal obligation placed upon a licensed physician.

       
       

       (1)(h) Making or filing a report which the licensee knows to be false, intentionally or negligently failing to file a report required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so. Such reports or records shall include only those which are signed in the capacity as a licensed physician.

       
       

       (1)(k) Making deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick or scheme in the practice of medicine.

       
       

       (1)(m) Failing to keep legible, as defined by department rule in consultation with the board, medical records that identify the licensed physician or the physician extender and supervising physician by name and professional title who is or are responsible for rendering, ordering, supervising, or billing for each diagnostic or treatment procedure and that justify 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.

       
       

       (1)(n) Exercising influence on a patient or clinic in such a manner as to exploit the patient or client for financial gain of the licensee or of a third party, which shall include, but not be limited to, the promoting or selling of services, goods, appliances, or drugs.

       
       

       (1)(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. . . . As used in this

       paragraph, "gross malpractice" or "the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances," shall not be construed so as to require more than one instance, event, or act. Nothing in this paragraph shall be construed to require that a physician be incompetent to practice medicine in order to be disciplined pursuant to this paragraph.

       
       

       (1)(x) Violating any provision of this chapter, a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department.

       
       

   90. When the board finds any person guilty of any of the grounds set forth in Section 458.331(1), Florida Statutes, it may enter an order imposing one or more of the following penalties:

       1. Refusal to certify, or certification with restrictions, to the department an application for licensure, certification, or registration.

          
          

       2. Revocation or suspension of a license.

          
          

       3. Restriction of practice.

          
          

       4. Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.

          
          

       5. Issuance of a reprimand.

          
          

       6. Placement of the physician on probation for such period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the physician to submit to treatment, to attend continuing education courses, to submit to re-examination, or to work under the supervision of another physician.

       7. Issuance of a letter of concern.

       8. Corrective action.

          
          

       9. Refund of fees billed to and collected from the patient.

       
       

   91. Count One of the complaint alleged that Respondent violated Section 458.331(1)(m), Florida Statutes, by failing to keep written records justifying the course of treatment of Patient

       A.M. Petitioner proved this allegation by clear and convincing evidence. Respondent’s records did not include examination results and test results sufficient in themselves to demonstrate that Respondent performed an interpretation of the X-rays, NCV studies, or thermograms.

   92. Count Two of the complaint alleged that Respondent violated Section 458.331(1)(g), Florida Statutes, by ordering Patient A.M. to undergo the following unnecessary and excessive testing: an NCV study of the left arm; X-ray studies of the coccyx, pelvis, and thoracic spine; and thermography. Petitioner proved by clear and convincing evidence that the thermographic tests ordered by Respondent were unnecessary and excessive. Petitioner failed to prove by clear and convincing evidence that the other cited tests were unnecessary and excessive.

   93. Count Three of the complaint alleged that Respondent violated Section 458.331(1)(n), Florida Statutes, by exercising influence on Patient A.M. in such a manner as to exploit the patient for his own financial gain by billing Patient A.M. for unnecessary and excessive testing. Petitioner failed to prove this allegation by clear and convincing evidence. While Respondent did

       order one unnecessary and excessive test, Respondent failed to demonstrate that this "exercise of influence" was undertaken for any reason other than Respondent’s sincere, if incorrect, belief that the thermography was a legitimate test to order under the circumstances.

   94. Count Four of the complaint alleged that Respondent violated Section 458.331(1)(h), Florida Statutes, by billing Patient A.M. for interpretations of X-rays, NCV tests, and thermographic scans when those interpretations were not documented in Respondent’s medical records. Petitioner failed to prove this allegation by clear and convincing evidence. As noted above, the weight of the evidence was that Respondent performed the interpretations but merely failed to document them. It is concluded that this failure constituted a violation of the recordkeeping requirement of Section 458.331(1)(m), Florida Statutes, but not of Section 458.331(1)(h), Florida Statutes, which implies bad faith or deceptiveness that was not proven in this case.

   95. Count Five of the complaint alleged that Respondent violated Section 458.331(1)(t), Florida Statutes, by ordering Patient A.M. to undergo "a number of inappropriate tests which were not in fact substantiated by Respondent’s history or physical examination" of the patient. Petitioner proved this allegation by clear and convincing evidence, but only insofar as the ordering of the thermogram.

   96. Count Six of the complaint alleged that Respondent violated Section 458.331(1)(g), Florida Statutes, by his violation of Section 455.24, Florida Statutes (1991), which required that in any advertisement for a free, discounted fee, or reduced fee service, examination, or treatment by a licensed health care provider, the following statement shall appear in capital letters clearly distinguishable from the rest of the text:

       THE PATIENT AND ANY OTHER PERSON RESPONSIBLE FOR PAYMENT HAS A RIGHT TO REFUSE TO PAY, CANCEL PAYMENT, OR BE REIMBURSED FOR PAYMENT FOR ANY OTHER SERVICE, EXAMINATION, OR TREATMENT WHICH IS PERFORMED AS A RESULT OF AND WITHIN 72 HOURS OF RESPONDING TO THE ADVERTISEMENT FOR THE FREE, DISCOUNTED FEE, OR REDUCED FEE SERVICE, EXAMINATION, OR TREATMENT.

       The operative language of Section 455.24, Florida Statutes (1991), is now found in Section 455.664, Florida Statutes (1997). See Chapter 97-261, Laws of Florida, Sections 29 and 81, for the relevant statutory amendments.

   97. Respondent's advertisement in the Tampa Tribune offering a "free initial consultation" did not contain the required disclaimer concerning the patient's rights regarding payment for such advertised free services and thus violated Section 455.24, Florida Statutes (1991). Further, Respondent billed Patient A.M. in the amount of $200 for a "new patient comprehensive examination."

   98. Former Rule 21M-24.001(2)(i), Florida Administrative Code (now Rule 64B8-11.001(2)(i), Florida Administrative Code), provided:

       1. No physician shall disseminate or cause the dissemination of any advertisement or advertising which is in any way false, deceptive, or misleading. Any advertisement or advertising shall be deemed by the Board to be false, deceptive, or misleading if it:

          
          

          1. Fails to conspicuously identify the physician by name in the advertisement.

       
       

   99. Respondent's advertisement in the Tampa Tribune did not identify Respondent by name and thus violated former Rule

       21M-24.001(2)(i), Florida Administrative Code.

       
       

   100. Former Rule 21M-24.001(2)(f), Florida Administrative Code (now Rule 64B-11.001(2)(f), Florida Administrative Code), provided, in relevant part:

        (2) No physician shall disseminate or cause the dissemination of any advertisement or advertising which is in any way false, deceptive, or misleading. Any advertisement or advertising shall be deemed by the Board to be false, deceptive, or misleading if it:

        
        

        (f) States or implies that the physician has received formal recognition as a specialist in any aspect of the practice of medicine unless he has in fact received such recognition and such recognizing agency is approved by the Board. For purpose of this rule, the Board approves the specialty boards of the American Board of Medical Specialties as a recognizing agency, and such other recognizing agencies as may receive future approval by the Board.

   101. Respondent's business stationery claimed that Respondent was board certified in three specialties: "neurological and orthopedic surgery," "pain management," and "neurothermography." Respondent was not board certified in the first specialty. The American Board of Medical Specialties does not recognize a board

        for either of the latter two specialties. Respondent therefore violated former Rule 21M-24.001(2)(f), Florida Administrative Code. Petitioner proved the allegations contained in Count Six of the complaint by clear and convincing evidence.

   102. Count Seven of the complaint alleged that Respondent violated Section 458.331(1)(x), Florida Statutes, through his failure to comply with the rule requirement that his advertisement identify him clearly by name. Petitioner proved this allegation by clear and convincing evidence.

   103. Count Eight of the complaint alleges that Respondent violated Section 458.331(1)(d), Florida Statutes, by disseminating false, deceptive, or misleading advertising. Petitioner proved this allegation by clear and convincing evidence.

   104. Count Nine of the complaint alleges that Respondent violated Section 458.331(1)(k), Florida Statutes, in that his advertisement constituted a "trick or scheme" in the practice of medicine, designed to attract new patients for the purpose of ordering expensive testing following the initial examination. Petitioner failed to prove this allegation by clear and convincing evidence. The evidence was ambiguous regarding Respondent's actual knowledge of the contents of the advertisement. While Respondent was ultimately responsible for the contents of the advertisement and his staff's actions in honoring the terms of the advertisement, the undersigned concludes that some measure of actual knowledge

        must be demonstrated before Respondent can be found to have employed a "trick or scheme" in the practice of medicine.

   105. Count Ten of the complaint essentially repeats the allegations regarding the business stationery falsely holding Respondent out as "board certified," and alleges that this act also constitutes a violation of Section 458.331(1)(x), Florida Statutes. Petitioner proved this allegation by clear and convincing evidence.

   106. In summary, Petitioner proved by clear and convincing evidence the violations alleged in Counts One, Two (as to the thermogram), Five (as to the thermogram), Six, Seven, Eight, and Ten. The statutory provisions violated were Section 458.331(1)(d), (g), (m), (t), & (x), Florida Statutes.

   107. Current Rule 64B8-8.001, Florida Administrative Code (formerly 21M-20.001, Florida Administrative Code), sets forth the disciplinary guidelines of the Board of Medicine applicable to violations of Section 458.331(1), Florida Statutes, and in relevant part, provides as follows:

        (1) Purpose. Pursuant to Section 2, Chapter 86-90, Laws of Florida, the Board provides within this rule disciplinary guidelines which shall be imposed upon applicants or licensees whom it regulates under Chapter 458, F.S. The purpose of this rule is to notify applicants and licensees of the ranges of penalties which will routinely be imposed unless the Board finds it necessary to deviate from the guidelines for the stated reasons given within this rule. The range of penalties provided below are based upon a single count violation of each provision listed; multiple counts of the violated provisions or a combination of violations may result in a higher penalty than that for a

        single, isolated violation. Each range includes the lowest and highest penalty and all penalties falling between. The purposes of the imposition of discipline are to punish the applicants or licensees for violations and to deter them from future violations; to offer opportunities for rehabilitation, when appropriate; and to deter other applicants or licensees from violations.

   108. Penalty guidelines for violation of disciplinary statutes are set forth at Rule 64B8-8.001(2), Florida Administrative Code (formerly Rule 21M-20.001, Florida Administrative Code).

   109. The penalty for each violation of Section 458.331(1)(d), Florida Statutes, ranges from a reprimand to a one-year suspension, and an administrative fine from $500 to $5,000. The penalty for each violation of Section 458.331(1)(g) ranges from a reprimand to revocation, and an administrative fine from $250 to $5,000. The penalty for each violation of Section 458.331(1)(m) ranges from a reprimand to two years' suspension followed by probation, and an administrative fine from $250 to $5,000. The penalty for each violation of Section 458.331(1)(t) ranges from two years' probation to revocation, and an administrative fine from $250 to $5,000. The penalty for each violation of Section 458.331(1)(x) ranges from reprimand to denial, and an administrative fine from $250 to

        $5,000.

        
        

   110. Based upon consideration of aggravating and mitigating factors present in an individual case, the Board may deviate from the disciplinary guidelines. The aggravating and mitigating factors which the Board shall consider are stated in Rule

        64B8-8.001(3), Florida Administrative Code (formerly Rule 21M-20.001(3), Florida Administrative Code), 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 or applicant;

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

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

        7. Any other relevant mitigating factors.

   111. The undersigned concludes that mitigating factors are that the patient was exposed to little or no potential physical injury and that, except for the ordering of unnecessary and medically dubious thermograms, the actual care provided by Respondent to Patient A.M. was within the standard of care as established by the weight of the evidence adduced at hearing.

   112. The only clearly aggravating factor is the number of counts established in this case: seven counts establishing violations of five separate prohibitions found in Section 458.331(1), Florida Statutes. Petitioner urges that the elements of fraud, deceit, and disregard for proper credentials constitute aggravating factors. However, the undersigned concludes that these elements are subsumed within the statutory violations and range of penalties established therefor, and do not constitute "aggravating" factors to justify deviation from the range of penalties.

   113. The undersigned also takes into account that most of the proven charges relate to Respondent's misleading marketing practices rather than his capabilities or actions in the practice of medicine. It is, therefore, concluded no purpose would be served by removing Respondent from the practice of medicine via suspension or revocation. A supervised probation, accompanied by a significant administrative fine, would be a more appropriate penalty than suspension of Respondent's license to practice medicine.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Health, Board of Medicine, enter a final order finding the Respondent, Lehel Kadosa, guilty of violating Section 458.331(1)(d), (g), (m), (t), and (x), Florida Statutes, as alleged in the complaint, and imposing upon the Respondent the penalty of a reprimand, supervised probation for a period of three years, and an administrative fine in the amount of

$20,000.

DONE AND ENTERED this 17th day of September, 1999, in Tallahassee, Leon County, Florida.

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1999.

COPIES FURNISHED:

Albert Peacock, Esquire

Agency for Health Care Administration Legal Department

Post Office Box 14229 Tallahassee, Florida 32317-4229

Christopher J. Schulte, Esquire

Shear, Newman, Hahn & Rosenkranz, P.A.

201 East Kennedy Boulevard, Suite 1000 Tampa, Florida 33629

Sam Power, Agency Clerk

Agency for Health Care Administration Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-000024

Orders for Case No: 96-000024