STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, )
)
Petitioner, )
)
vs. ) Case Nos. 96-0674
) 96-0807
JAGDEEP VAMANRAI BHUTA, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
An administrative hearing was conducted in this consolidated proceeding on April 21-23, 1997, in St. Augustine, Florida, before Daniel Manry, Administrative Law Judge, Division of Administrative Hearings.
APPEARANCES
For Petitioner: Albert Peacock, Senior Attorney
John E. Terrel, Senior Attorney Department of Health
Post Office Box 14229 Tallahassee, Florida 32317-4229
For Respondent: William M. Furlow, Esquire
Katz, Kutter, Haigler, Alderman, Marks, Bryant and Yon, P.A.
Post Office Box 1877 Tallahassee, Florida 32302-1877
STATEMENT OF THE ISSUES
The issues in this case are whether Respondent violated Section 458.331(1), Florida Statutes (1995) 1/ by failing to practice medicine according to the applicable standard of care, by performing unnecessary and improper breast examinations on eight patients, by failing to document the examinations in his medical records, and by documenting tests that were not
performed, and, if so, what, if any, penalty should be imposed pursuant to Florida Administrative Rule 59R-8.001. 2/
PRELIMINARY STATEMENT
From December 20, 1995, through June 18, 1996, Petitioner filed administrative complaints against Respondent alleging that Respondent committed statutorily prohibited acts from April 8, 1994, until sometime after July 10, 1995. Respondent timely requested a administrative hearing.
At the hearing, Petitioner presented the testimony of the eight complaining witnesses and four physicians. Petitioner submitted 14 exhibits for admission in evidence.
Respondent testified in his own behalf and presented the testimony of three physicians. Respondent submitted four exhibits for admission in evidence.
The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the transcript of the hearing filed with the undersigned on June 4, 1997. The parties timely filed their respective proposed recommended orders ("PROs") on June 16, 1997.
On July 3, 1997, Petitioner filed a Motion For Substitution of Party. The original Petitioner in this proceeding was the Agency For Health Care Administration. Effective July 1, 1997, Section 20.43(3)(f) makes the Department of Health the agency responsible for regulating the practice of medicine.
Petitioner's Motion For Substitution of Party is granted without objection. The Petitioner is the Department of Health.
FINDINGS OF FACT
1. Petitioner is the state agency responsible for regulating the practice of medicine. Respondent is licensed to practice medicine pursuant to license number ME0062132.
Education, Experience, And Reputation
Respondent practiced neurology in Jacksonville and St. Augustine, Florida, until Petitioner issued an emergency suspension of his license in December, 1995. Respondent is not a board certified neurologist.
Respondent was graduated from medical school in India, where he was born, and received some post-graduate medical training there. The post-graduate training included a six-month "house post" in obstetrics and gynecology ("OB/GYN"). A "house post" is the equivalent of a residency in the United States.
In 1983, Respondent moved to the United States and passed all required examinations. From 1985 through 1987, he completed an 18-month residency in the Department of Neurology, University of Minnesota, Veteran's Administration hospital.
In 1988, Respondent completed a rotating internship at the University of Minnesota and a three-year residency in neurology in 1991. In June, 1992, he completed a one-year fellowship in physio-neurology.
Respondent moved to Florida and was employed at the Jacksonville Neurological Clinic. In 1994, Respondent established his own neurology practice in St. Augustine under the name of the St. Augustine Neurological Clinic (the "Clinic").
From 1985 through April 8, 1994, Respondent had an exemplary professional career, without incident, in multiple jurisdictions. He has a reputation in the professional community for competency and veracity.
Medical Records
Respondent examined and treated the eight patients involved in this proceeding in his Clinic. The eight patients are D.R., L.W., L.Y., L.B., C.L., D.S., L.T., and D.P. Respondent performed 16 breast examinations on these patients.
Respondent performed one breast examination on D.R., L.W., L.Y., and C.L.. He performed two breast examinations on
D.S. and L.T., five breast examinations on L.B., and three breast examinations on D.P.
Respondent documented the breast examinations on D.S. in his medical records and one of the breast examinations on D.P. Respondent failed to document the other breast examinations in his medical records.
Breast Examinations: Necessity and Propriety
Petitioner charged Respondent with performing breast examinations that were unnecessary and inappropriate. The preliminary factual issue for each patient is whether a breast
examination was medically necessary. The secondary issue is whether the breast examination actually given was performed in an appropriate manner and for appropriate purposes. The issue of whether Respondent documented medical tests that he did not actually perform is discussed in the context of each patient.
Neurology involves the diagnosis and treatment of diseases of the brain, spinal cord, nerves, and muscles. Neurologists generally obtain patients by referral from other primary care physicians including family physicians and OB/GYNs.
Neurologists can approach similar neurological problems differently, including different initial examinations for new patients. Some neurologists give a new patient a general physical examination as well as a neurological examination. General examinations may include a breast examination.
A breast examination by a neurologist is medically necessary in some instances. A definite connection exists between breast cancer and some neurological problems.
Breast cancer can metastasize into the brain and cause a brain tumor and headaches. Breast cancer can metastasize to the lung and cause other problems. There are a variety of symptoms patients may experience when breast cancer spreads to other parts of the body depending on whether the disease spreads to the brain, the spinal cord, the skull, or the blood stream.
If a neurologist has training in other medical specialties, it is appropriate for the neurologist to use that
training in diagnosing and treating neurological patients. Respondent has training in breast examinations from medical school, his "house post," and his rotating internship.
Respondent has performed hundreds of breast examinations over the past 15 years. He routinely performs breast examinations on approximately one-third of his patients.
A breast examination that is performed appropriately has no negative side effects. Some neurologists perform breast examinations and some do not.
D.R. is a 49-year-old female. On June 7, 1995, Dr. Ernest Carames, D.R.'s primary care physician, hospitalized D.R. in Flagler Hospital for chest pains. Dr. Carames requested Respondent to evaluate D.R. for possible seizures and multiple sclerosis.
Respondent performed a neurological examination of D.R. in the hospital on June 7, 1997. As part of the examination, Respondent ordered a magnetic resonance imaging scan (an "MRI") which was performed on June 8, 1995. Respondent scheduled D.R. for follow up in his office on June 21, 1995.
At the follow up on June 21, 1995, Respondent took D.R. to his office and reviewed her condition with her. After a few minutes in the office, Respondent took D.R. to an examining room and performed a breast examination.
The breast examination was not medically necessary. Dr. Carames was D.R.'s primary care physician and was treating
D.R. for chest pain. Objective findings available to Respondent prior to the breast examination were insufficient to establish a medical necessity for, or to otherwise justify, a breast examination by Respondent.
Respondent had previously ruled out multiple sclerosis and seizures. Respondent's medical records were insufficient to establish a medical necessity for, or to otherwise justify, a breast examination by Respondent.
Respondent performed the breast examination inappropriately. Respondent instructed D.R. to sit on the examination table without an examination gown. Respondent and
D.R. were alone in the examination room.
Respondent lifted D.R.'s brassier ("bra") over her breasts. Respondent cupped D.R.'s left breast, then her right breast, and back to the left breast. He alternated between D.R.'s two breasts for several minutes.
Respondent put his hands around each breast. He twisted and pinched the nipple of each breast.
D.R. informed Respondent that she had a rash under her breasts and that his examination was painful. She explained that the skin affected by the rash would split and bleed if Respondent lifted her breasts too much.
Respondent ignored D.R.'s complaints and explanation. When D.R.'s skin bled, Respondent terminated the examination.
Respondent met D.R. in his office. He informed her that the MRI results were negative and that he had ruled out multiple sclerosis and seizures.
Respondent never informed D.R. of the medical necessity for the breast examination. D.R. had never received a breast examination that was performed in the manner performed by Respondent.
Respondent documented tests for D.R. in his medical records that he did not perform. Respondent's medical records for D.R. indicate that Respondent performed: a general physical examination, including a blood pressure and pulse; a head and neck examination; a chest examination; a motor examination; a test of deep tendon reflexes; a sensory examination; and an examination of the patient's station, gait, and coordination.
Except for the last examination listed in the preceding paragraph, Respondent did not perform the examinations documented in his medical records. The evidence was less than clear and convincing that Respondent did not examine D.R.'s station, gait, and coordination by observing her in the examination room and from his office to the examination room.
L.W. is a 37-year-old female. On June 27, 1995, L.W. presented to Respondent with complaints of arm pain.
Respondent took L.W. to his office and reviewed her condition. After a few minutes in the office, Respondent took
L.W. to an examining room and performed a breast examination.
The breast examination was not medically necessary.
L.W. presented with arm pain seeking a neurological examination.
Neither the objective findings available to Respondent prior to the breast examination nor Respondent's medical records were sufficient to establish a medical necessity for, or to otherwise justify, a breast examination by Respondent. Respondent did not inform L.W. of a medical necessity for a breast examination.
Respondent performed the breast examination inappropriately. Respondent instructed L.W. to remove her top and lie down on the examination table without an examination gown. Respondent and L.W. were alone in the examination room.
Respondent placed the palms of his hands on L.W.'s breasts and rubbed her breasts in a circular motion. He then unsnapped L.W.'s shorts and unzipped them. He asked L.W. if she was married.
Respondent put his hands just above L.W.'s pubic region. He pressed and rubbed the area.
L.W. asked Respondent why he was examining her pubic area for arm pain. Respondent did not provide an explanation.
Respondent terminated the examination. Respondent never examined L.W.'s arm and performed no other examinations.
Respondent documented tests for L.W. in his medical records that he did not perform. Respondent's medical records for L.W. indicate that Respondent performed a comprehensive
medical examination. A comprehensive medical examination requires: an extensive history of the presenting complaints; a review of the patient's medical, family, and social history; a review of her current medications and allergies; a review of at least 10 endocrine systems; and complete neurological and physical examination. Respondent did not perform a comprehensive medical examination of L.W.
L.B. is a 37-year-old female. On January 20, February 22, March 22, March 30, and April 6, 1995, L.B. presented to Respondent with complaints of trauma-induced headaches from an automobile accident.
Respondent performed five breast examinations on L.B. in approximately 76 days. None of the breast examinations were medically necessary. L.B. presented with headaches caused by trauma.
Neither the objective findings available to Respondent prior to each of the breast examinations nor Respondent's medical records were sufficient to establish a medical necessity for, or to otherwise justify, a breast examination by Respondent. Respondent did not inform L.B. of a medical necessity for any of the breast examinations.
Respondent performed each of the breast examinations inappropriately. On each occasion Respondent and L.B. were alone in the examination room and L.B. had no examination gown.
On January 20, 1995, Respondent reviewed L.B.'s condition with her in his office. He then took L.B. to an examining room and performed the first breast examination.
Respondent instructed L.B. to remove her clothes from the waist up and to sit on the examination table. Respondent and
L.B. were alone in the examination room.
Respondent placed one hand on each of L.B.'s breasts. He squeezed each breast and nipple. He then cupped each breast and used both of his hands to rub each breast individually.
Respondent did not provide an explanation of the medical necessity for the breast examination. He instructed L.B. to return to his office in one month.
On February 22, 1995, L.B. returned to the Clinic in accordance with Respondent's medical advice. Respondent ushered
L.B. directly to the examination room, locked the door, and performed the second breast examination.
Respondent instructed L.B. to remove her clothes from the waist up and to sit on the examination table. He placed both hands on one of L.B.'s breasts and squeezed and massaged it. He squeezed and pulled the nipple. He then repeated the process on the other breast. He instructed L.B. to return to his office on March 22, 1995.
On March 22, 30, and April 6, 1995, Respondent took
L.B. directly to the examination room, locked the door, and performed the remaining three breast examinations. He performed
each of the last three breast examinations using the same techniques as he used on January 20 and February 22, 1995.
Respondent documented tests for L.B. in his medical records that he did not perform. Respondent's medical records for L.B. indicate that Respondent performed a Babinski test and an examination of: the head and neck, including the ear, nose, and throat; the abdomen; the spinal area; and all eleven cranial nerves. Respondent did not perform these tests.
C.L. is a 31-year-old female. On December 23, 1994,
C.L. presented to Respondent with numbness in her arm.
Respondent took C.L. to his office and reviewed her condition. After a few minutes in the office, Respondent took
C.L. to an examining room and performed a breast examination.
The breast examination was not medically necessary.
C.L. presented with numbness in her arm and sought a neurological examination for the condition. On December 22, 1994, C.L.'s gynecologist had given C.L. a complete physical that included a breast examination.
Neither the objective findings available to Respondent prior to the breast examination nor Respondent's medical records were sufficient to establish a medical necessity for, or to otherwise justify, a breast examination. Respondent did not inform C.L. of the medical necessity for a breast examination.
Respondent performed the breast examination inappropriately. Respondent instructed C.L. to remove all of her
clothes from the waist up and to lie down on the examination table without an examination gown. Respondent and C.L. were alone in the examination room.
C.L. objected to the examination and Respondent's instructions. C.L. explained that her gynecologist had performed a breast examination the previous day. Respondent insisted and
C.L. reluctantly complied.
Respondent cupped each breast with the palm of his hand. He pinched each nipple and rubbed his hands from her neck to the edge of her nipples.
Respondent instructed C.L. to return to the Clinic for another office visit. C.L. never returned.
Respondent documented tests for C.L. in his medical records that he did not perform. Respondent's medical records for C.L. indicate that Respondent examined C.L.'s eye with a swab or other instrument, examined her gait, and performed a Babinski test. Respondent did not perform these tests.
L.Y. is a 37-year-old female. On May 25, 1995, L.Y. presented to Respondent with complaints of migraine headaches.
Respondent took L.Y. to his office and reviewed her condition. After a few minutes in the office, Respondent took
L.Y. to an examining room and performed a breast examination.
The breast examination was not medically necessary.
L.Y. presented with migraine headaches and sought a neurological examination for the condition.
Neither the objective findings available to Respondent prior to the breast examination nor Respondent's medical records were sufficient to establish a medical necessity, or to otherwise justify, a breast examination. Respondent did not inform L.Y. of the medical necessity for a breast examination.
Respondent performed the breast examination inappropriately. Respondent instructed L.Y. to remove all of her clothes from the waist up. L.Y. did so and put on an examination gown that she had requested. Respondent, L.Y., and L.Y.'s five year-old son were the only individuals in the examination room.
Respondent rubbed each breast with the palm of his hand. The palm of each hand made contact with each nipple. The breast examination was unlike any breast examination L.Y. had previously received.
D.S. is a 27-year-old female. On November 28, 1994,
D.S. presented to Respondent with complaints of migraine headaches. D.S. was referred to Respondent by her gynecologist who had recently performed a yearly physical that included a breast examination.
D.S. had a calcified cyst in her right breast. The cyst had been present for five years and was monitored routinely by her gynecologist. D.S. was scheduled for a routine mammogram shortly after her neurological examination.
Respondent performed two breast examinations on D.S. on the same day. He performed one breast examination in the examination room and the second in his office.
Neither of the breast examinations were medically necessary. D.S. had recently received a breast examination during from her gynecologist during her annual physical and was scheduled for a mammogram. She presented to Respondent with migraine headaches and sought a neurological examination.
Neither the objective findings available to Respondent before the breast examinations nor Respondent's medical records were sufficient to establish a medical necessity for, or to otherwise justify, a breast examination by Respondent. Respondent did not inform D.S. of the medical necessity for a breast examination.
Respondent performed both breast examinations inappropriately. After D.S. completed some forms in the reception area, Respondent took D.S. directly to an examination room and performed the first breast examination.
Respondent instructed D.S. to remove her clothes from the waist up. He gave her an examination gown and left the room.
D.S. removed all of her clothes from the waist up except her bra. She put on the examination gown.
Respondent returned to the examination room and performed the breast examination. Respondent and D.S. were alone in the examination room.
Respondent lifted D.S.'s bra. He felt her left breast and then her right breast. He then felt both breasts simultaneously. He then felt each breast separately again.
During the examination, D.S. objected to the examination. She explained that her gynecologist had just performed a breast examination and that she was scheduled for a mammogram to monitor the cyst in her right breast.
Respondent continued the examination. He continued to touch both breasts simultaneously with both hands. He repeatedly twisted both nipples simultaneously with both hands.
Respondent completed the examination. He instructed
D.S. to get dressed and to meet him in his office.
In his office, Respondent discussed more tests and asked D.S. more questions about her condition. Respondent then rose from his chair, locked the door to his office, and told D.S. that he wanted to check the cyst in her right breast.
Respondent instructed D.S. to unbutton her blouse. Respondent pulled up D.S.'s bra and asked her to stand and lean forward.
Respondent squeezed and twisted both of D.S.'s nipples. He touched both breasts simultaneously. Respondent did not touch the area of the cyst.
Respondent instructed D.S. to return to his office for follow up. D.S. never returned.
Respondent documented tests for D.S. in his medical records that he did not perform. Respondent's medical records for D.S. indicate that Respondent performed a head and neck examination, an examination of 11 pairs of cranial nerves, a motor examination, and a sensory examination. Respondent did not perform these tests.
L.T. is a 29-year-old female. On July 10, 1995, L.T. presented to Respondent with complaints of headaches and seizures. L.T. was referred to Respondent by her kidney specialist.
L.T. also had a gynecologist who had performed a complete physical within one year of L.T.'s visit to Respondent. The complete physical included a breast examination.
Respondent performed a breast examination on L.T. on July 10, 1995, and August 4, 1995. Neither of the breast examinations were medically necessary.
L.T. recently had a breast examination from her gynecologist during her annual physical. She presented to Respondent with headaches and seizures.
Neither the objective findings available to Respondent prior to the breast examinations nor Respondent's medical records were sufficient to establish a medical necessity for, or to otherwise justify, a breast examination by Respondent.
Respondent did not inform L.T. of the medical necessity for a breast examination.
Respondent performed both breast examinations inappropriately. On both occasions, Respondent and L.T. were alone in the examination room, and L.T. had no examination gown.
On July 10, 1995, L.T. completed some forms in the reception area and Respondent took L.T. to his office where he asked her some routine questions. Respondent then took L.T. to an examination room and performed the first breast examination.
Respondent instructed L.T. to sit on the examination table. He took her blood pressure and had her to lie on her back.
Respondent listened to L.T.'s heart for a moment. He then pulled her shirt and bra over her breasts and squeezed both of her breasts simultaneously. Respondent told L.T. to place her hands behind her head.
Respondent squeezed one breast and then the other. He then repeated the same process several times alternating between breasts. He then twisted and rolled L.T.'s nipples simultaneously with his fingers while the palms of hands grasped her breasts.
Respondent moved his hands toward L.T.'s abdomen and applied pressure. He then moved his hands down to the hairline of the pubic region to examine a scar.
Respondent moved his hands back up to L.T.'s breasts. He squeezed both breasts simultaneously while rolling both nipples with his fingers.
During the examination, Respondent asked L.T. about her nationality. L.T. questioned the question. Respondent explained that L.T. had no tan lines.
Respondent completed the examination. He instructed
L.T. to get dressed and accompany him to his office.
In his office, Respondent prescribed an MRI and electroencephalogram ("EEG"). The MRI was performed on July 18, 1995, and produced no positive findings.
The EEG was performed in the Clinic by Respondent's nurse. The nurse scheduled L.T. to return to Respondent's office on August 4, 1995, to obtain the results of the EEG.
The EEG produced no positive findings. On August 4, 1995, Respondent took L.T. to his office. Respondent stated that he found something abnormal but did not disclose the nature of the abnormality. He took L.T. to the examination room.
In the examination room, Respondent had L.T. sit on the examination table and then lie down on the table with her hands behind her head. He pulled up her shirt and bra over her breasts. He then listened to her heart while he held her left breast in his right hand. He then touched both breasts with both hands while twisting her nipples with his fingers.
Respondent instructed L.T. to return to his office for another EEG. L.T. returned on the next day. However, she did not stay for the test and never saw Respondent again.
Respondent documented tests for L.T. in his medical records that he did not perform. The medical records for L.T. indicate that Respondent performed a cranial nerve test and deep tendon reflex test. Respondent did not perform either test.
D.P. is a 39 year-old female. On April 8, 1994, D.P. presented to Respondent with complaints of migraine headaches. Respondent performed a breast examination on D.P. on July 10, 1995, in November 1994, and in the Spring of 1995.
None of the breast examinations were medically necessary. D.P. presented to Respondent with migraine headaches and sought a neurological examination.
Neither the objective findings available to Respondent prior to each breast examination nor Respondent's medical records were sufficient to establish a medical necessity for, or to otherwise justify, a breast examination by Respondent.
Respondent did not inform D.P. of the medical necessity for a breast examination.
Respondent performed all three breast examinations inappropriately. On each occasion, Respondent and D.P. were alone in the examination room, and D.P. had no examination gown.
On April 8, 1994, D.P. completed some forms in the reception area, and Respondent took D.P. to his office where he asked her some routine questions. Respondent then took D.P. to an examination room and performed the first breast examination.
Respondent instructed D.P. to remove her clothes from the waist up and to lie down on the examination table. He massaged both of her breasts with his hands. He then had her sit up on the table and again massaged both breasts. He lifted both breasts with his hands and continued to massage both breasts while he pinched her nipples with his fingers.
During the examination, Respondent stated repeatedly that he had to be thorough. The repeated statements were disconcerting to D.P.
The breast examination was like no other breast examination D.P. had received. It was lengthy and irregular.
Respondent completed the examination. He instructed
D.P. to get dressed and to meet him in his office.
In his office, Respondent recommended that D.P. return on a monthly basis. Respondent advised that he could not refill her prescription unless he examined her monthly.
D.P. returned to the Clinic over the next several months without incident. In November 1994, Respondent took D.P. to the examination room. He instructed D.P. to remove her clothes from the waist up.
Respondent grasped both breasts and massaged them in a clinching manner. He pinched and twisted both nipples.
In the Spring of 1995, Respondent took D.P. to an examination room and performed another examination that Respondent described to D.P as a breast examination. Respondent
put both of his hands down D.P.'s bra and placed a stethoscope on one of her nipples.
On her last visit, Respondent fingered D.P.'s bra strap. He told her it was very nice. The examination terminated shortly thereafter.
Respondent performed all 16 breast examinations on the eight complaining witnesses in this proceeding for purposes of engaging them in sexual activity within the meaning of Section
458.329. In each case, Respondent exercised his influence within the patient-physician relationship for purposes prohibited by Section 458.329.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties. The parties were duly noticed for the administrative hearing.
Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the administrative complaints and the reasonableness of any penalty to be imposed. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Section 458.331(1) provides in relevant part that the following acts are grounds for disciplinary action against Respondent:
Exercising influence within a patient- physician relationship for the purposes of engaging a patient in sexual activity. A patient shall be presumed to be incapable of
giving free, full, and informed consent to sexual activity with [her] physician.
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.
* * *
(m) 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, dispensed or administered; and reports of consultations and hospitalizations.
* * *
(t) Being guilty of gross or repeated malpractice or the failure to practice medicine with that level of care, skill or treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.
* * *
(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.
Respondent violated Sections 458.331(1)(j), (k), (m), and (t). As a result, Petitioner also violated Section 458.331(1)(x).
Respondent violated Section 458.331(1)(j) by performing medically unnecessary breast examinations on all of the patients in an inappropriate manner and for purposes of engaging the patients in sexual activity within the meaning of
Section 458.329. In each case, Respondent exercised his influence within the patient-physician relationship for purposes prohibited in Section 458.329.
Respondent violated Section 458.331(1)(k) by making deceptive, untrue, or fraudulent representations in the medical records for all of the patients except L.Y. and D.P. Except for those two patients, Respondent repeatedly documented tests that he did not perform.
Respondent violated Section 458.331(1)(m) by failing to keep written medical records justifying a course of treatment for all of the patients. Respondent failed to adequately document in his medical records a medical necessity for performing any of the breast examinations. He failed to adequately document any of the breast examinations except those for D.S.
Respondent violated Section 458.331(1)(t) by failing to practice medicine with that level of care, skill, and treatment for all eight patients which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The multiple breast examinations of L.B., D.S., L.T., and D.P. constituted gross and repeated malpractice within the meaning of Section 458.331(1)(t).
Section 458.331(2), in relevant part, authorizes the Board of Medicine (the "Board") to impose a variety of penalties. Authorized penalties include corrective action, a letter of
correction, reprimand, administrative fine, restriction of practice, probation, continuing professional education, suspension, and revocation.
Rule 59R-8.001(2) prescribes a range of penalties for violations of Section 458.311(1). Each of the penalties recommended for violations of Sections 458.331(1)(j), (k), (m), (t), and (x) include an administrative fine that ranges from $250 to $5,000 as well as other license disciplinary action.
For each of the violations except the violations of Section 458.311(1)(t), Rule 59R-8.001(2) prescribes license disciplinary action that ranges, respectively, from: one year suspension to revocation; probation to revocation; and reprimand to two years suspension followed by probation. For violations of Section 458.311(1)(t), the prescribed license disciplinary action ranges from two years probation to revocation.
For gross malpractice in violation of Section 458.311(1)(t), Rule 59R-8.001(2) recommends license disciplinary action that ranges from one year suspension, followed by three years probation, to revocation. For repeated malpractice, the rule recommends license disciplinary action that ranges from three years probation to revocation. For failure to practice medicine in accordance with the applicable standard of care, the rule recommends license disciplinary action that ranges from two years probation to revocation.
Rule 59R-8.001(1) qualifies the penalties prescribed in Rule 59R-8.001(2) by stating that the prescribed penalties are based on a single count violation of each statutory provision. Multiple violations may result in a higher penalty than that prescribed for a single violation.
Rule 59R-8.001(3) authorizes the Board to deviate from the prescribed penalties based on aggravating and mitigating circumstances. Aggravating and mitigating circumstances include such factors as physical or other harm to the patient; the number of offenses established; the disciplinary history of the licensee; and any other relevant mitigating factors.
Several aggravating circumstances are present in this case. The acts committed by Respondent involved multiple offenses separated over time. The offenses were severe. They exposed all of the victims to egregious emotional harm and exposed D.R. to physical harm.
The testimony of the victims was credible and persuasive. It was precise and explicit. It was internally and externally consistent and lacked confusion with respect to material facts.
The testimony of Petitioner's experts was credible and persuasive. The individual and collective testimony of Petitioner's witnesses was clear and convincing.
There are some mitigating factors in evidence. Respondent has no previous disciplinary history. Except for this
proceeding, Respondent has a long and exemplary career in multiple jurisdictions.
Respondent has a reputation in the community for truth and veracity. The witnesses that testified in behalf of Respondent for purposes of mitigating the penalty in this case were credible and persuasive.
When all of the aggravating and mitigating factors are considered for the collective purposes adopted by the Board in Rule 59R-8.001(1), the maximum fine of $5,000 is appropriate for each offense committed by Respondent. Respondent committed 21 offenses.
Respondent committed eight of the 21 offenses when he performed 16 unnecessary and improper breast examinations. 3/ Respondent committed seven more offenses when he failed to maintain adequate medical records for all but one of the eight patients. 4/ Respondent committed the remaining six offenses when he documented the medical records of six patients with tests that Respondent did not perform. A fine in the amount of
$105,000 is appropriate for those 21 offenses.
License discipline action is supposed to accomplish several collective purposes including the purposes of: punishing the licensee; deterring the licensee from future violations; offering opportunities for rehabilitation, where appropriate; and deterring other licensees from committing violations. Rule 59R- 8.001(1). License disciplinary action should be taken in this
case which best serves the collective purposes adopted by the Board in its rule.
Rehabilitation is appropriate in this case. Prior to this case, Respondent demonstrated his professional competency during an exemplary career that began in 1985 and lasted nearly
10 years. During that time, Respondent performed hundreds of breast examinations without incident. Respondent's demonstrated professional competency prior to this proceeding also establishes a reasonable probability that he will benefit from probation and continuing professional education. Rehabilitation would also facilitate payment of any fines ordered by the Board.
If Respondent completes his rehabilitation successfully, his practice should not be unrestricted. Respondent's practice should be restricted to either permanently preclude him from performing any examinations of the breast or pubic region or from performing such examinations in the absence of professional supervision by a peer and a nurse.
Petitioner suspended Respondent's license in December, 1995. He has not practiced medicine for nearly two years. However, an additional period of suspension is appropriate in light of the aggravating circumstances in this case.
Revocation in a case where rehabilitation is appropriate is not the license disciplinary action that best serves the collective purposes adopted by the Board in Rule 59R-
8.001(1). This is especially so when the restriction of Respondent's practice provides a less onerous alternative.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that Petitioner enter a Final Order and therein: find Respondent guilty of violating Sections 458.311(1)(j), (k), (m), (t), and (x); impose an administrative fine of $105,000; suspend Respondent's license for three years, including the period of suspension prior to a final order in this case; place Respondent on probation for three years; require Respondent to complete a reasonable amount of continuing professional education; and restrict Respondent's practice in accordance with the provisions of this Recommended Order.
DONE AND ENTERED this 6th day of August, 1997, in Tallahassee, Leon County, Florida.
DANIEL MANRY
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(904) 488-9675 SUNCOM 278-9675
Fax Filing (904) 921-6847
Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1997.
ENDNOTES
1/ All references to chapters and sections are to Florida Statutes (1995) unless otherwise stated.
2/ Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect as of the date of this Recommended Order.
3/ Although Respondent performed 16 unnecessary and improper breast examinations, Petitioner charged Respondent with only eight violations.
4/ Although Respondent failed to maintain adequate medical records for all but two of the 16 unnecessary and improper breast examinations, Petitioner charged Respondent with only seven violations.
COPIES FURNISHED:
Dr. James Howell, Secretary Department of Health
1317 Winewood Boulevard
Building 6, Room 306
Tallahassee, Florida 32399-0700
Pete Peterson, General Counsel Department of Health
1317 Winewood Boulevard Building 6, Room 102-E
Tallahassee, Florida 32399-0700
Angela Hall, Agency Clerk Department of Health
1317 Winewood Boulevard Building 6, Room 102-E
Tallahassee, Florida 32399-0700
Dr. Marm Harris, Executive Director Board of Medicine
Agency for Health Care Administration Northwood Centre
1940 North Monroe Street Tallahassee, Florida 32399-0792
Albert Peacock, Senior Attorney John E. Terrel, Senior Attorney
Agency for Health Care Administration Post Office Box 14229
Tallahassee, Florida 32317-4229
Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive
Tallahassee, Florida 32308-5403
William M. Furlow, Esquire
Katz, Kutter, Haigler, Alderman, Marks, Bryant and Yon, P.A.
Post Office Box 1877 Tallahassee, Florida 32302-1877
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.
| Issue Date | Proceedings |
|---|---|
| Sep. 09, 1998 | Opinion and Mandate from the First DCA on Agency Appeal Case (Affirmed) filed. |
| Dec. 01, 1997 | Final Order filed. |
| Aug. 06, 1997 | Recommended Order sent out. CASE CLOSED. Hearing held 04/21-23/97. |
| Jul. 03, 1997 | (Petitioner) Motion for Substitution of Party; Order of Substitution of Party (for judge signature) (filed via facsimile). |
| Jun. 16, 1997 | Respondent`s Proposed Recommended Order filed. |
| Jun. 16, 1997 | Petitioner`s Proposed Recommended Order filed. |
| Jun. 04, 1997 | (3 Volumes) Transcript of Hearing filed. |
| Apr. 21, 1997 | CASE STATUS: Hearing Held. |
| Apr. 09, 1997 | (Respondent) Notice of Taking Deposition (filed via facsimile). |
| Apr. 09, 1997 | (Respondent) Notice of Taking Deposition (filed via facsimile). |
| Apr. 08, 1997 | Order sent out. (4/21/97; 10:30am; St. Augustine) |
| Mar. 28, 1997 | (Joint) Notice of Compliance (filed via facsimile). |
| Mar. 25, 1997 | Order sent out. (Motion granted) |
| Mar. 21, 1997 | Order sent out. (Motion for Withdrawal is granted) |
| Mar. 21, 1997 | (Respondent) Amended Notice of Taking Deposition (filed via facsimile). |
| Mar. 20, 1997 | (From W. Furlow) Notice of Taking Deposition filed. |
| Mar. 20, 1997 | (Respondent) Motion of Withdrawal; Order on Motion for Withdrawal (for Judge signature) filed. |
| Mar. 20, 1997 | (Petitioner) Amended Notice of Taking Deposition (filed via facsimile). |
| Mar. 19, 1997 | (Respondent) Motion of Withdrawal filed. |
| Mar. 17, 1997 | (Petitioner) Notice of Taking Deposition (filed via facsimile). |
| Mar. 06, 1997 | Order (Petitioners` unopposed Request to change venue is granted) sent out. |
| Mar. 03, 1997 | Petitioner`s Request to Establish Hearing Location In St. Augustine filed. |
| Feb. 18, 1997 | Second Notice of Hearing sent out. (hearing set for April 21-23, 1997; 10:00am; Jacksonville) |
| Feb. 14, 1997 | (Respondent) Request to Reset Hearing (filed via facsimile). |
| Feb. 13, 1997 | Order sent out. (Case to remain inactive; Petitioner to file status report by 6/30/97) |
| Feb. 12, 1997 | (John Terrel) Notice of Appearance of Co-Counsel (filed via facsimile). |
| Feb. 11, 1997 | (Petitioner) Status Report (filed via facsimile). |
| Oct. 11, 1996 | (Petitioner) Notice of Change of Address (filed via facsimile). |
| Sep. 04, 1996 | Order sent out. (Cases to remain inactive; Petitioner to file status report by 1/31/97) |
| Aug. 30, 1996 | (Petitioner) Status Report filed. |
| Jul. 24, 1996 | Order sent out. (Motion for protective Order is denied) |
| Jul. 16, 1996 | Respondent`s Response to Petitioner`s Motion for Protective Order filed. |
| Jul. 05, 1996 | (Petitioner) Motion for Protective Order filed. |
| Jun. 14, 1996 | (Respondent) (2) Amended Notice of Taking Depositions by Videotape filed. |
| Jun. 07, 1996 | Letter to HO from J. Andrews Re: Order granting Motion for Continuance filed. |
| Jun. 04, 1996 | Order sent out. (Cases to remain inactive; hearing cancelled; Petitioner to file status report by 8/30/96) |
| May 29, 1996 | (Respondent) Notice of Cancellation of Taking Depositions by Videotape filed. |
| May 29, 1996 | Petitioner`s Response to Respondent`s Motion for Continuance filed. |
| May 24, 1996 | (Respondent) Motion for Continuance filed. |
| May 21, 1996 | (Petitioner) Motion to Amend The Administrative Complaints; (Petitioner) Amended Administrative Complaint filed. |
| May 09, 1996 | Respondent, Jagdeep Vamanrai Bhuta, M.D.`s Notice of Serving Unverified Answers to Petitioner`s Interrogatories; Interrogatories; Request for Production filed. |
| May 01, 1996 | (Respondent) Notice of Taking Depositions by Videotape filed. |
| Apr. 09, 1996 | Notice of Serving Petitioner`s First Set of Interrogatories, and Request for Production of Documents filed. |
| Apr. 08, 1996 | Notice of Serving Answers to Respondent`s First Set of Interrogatories filed. |
| Mar. 14, 1996 | Notice of Service of Respondent`s First Set of Interrogatories filed. |
| Feb. 22, 1996 | Notice of Hearing sent out. (hearing set for Aug. 6-9, 1996; 9:00am; Jacksonville) |
| Feb. 22, 1996 | Order of Prehearing Instructions sent out. |
| Feb. 20, 1996 | Petitioner`s Addendum to Joint Compliance With Initial Order filed. |
| Feb. 19, 1996 | (Respondent) Joint Compliance with Initial Order filed. |
| Feb. 19, 1996 | Order sent out. (Cases Consolidated: 96-0674 & 96-0807) |
| Feb. 13, 1996 | (Jeannette M. Andrews) Notice of Appearance filed. |
| Feb. 12, 1996 | Petitioner`s Motion for Consolidation (with DOAH Case No/s. 96-0674 &96-0807) filed. |
| Feb. 08, 1996 | Initial Order issued. |
| Feb. 06, 1996 | Notice Of Appearance; Agency referral letter; Administrative Complaint; Election of Rights filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 25, 1997 | Agency Final Order | |
| Aug. 06, 1997 | Recommended Order | Doctor, who performed sixteen unnecessary and improper breast exams, should have license suspended for three years, be fined $105,000, be placed on probation, be placed in a Continuing Program of Education (CPE) and have practice permit restricted. |
