STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 96-1217

)

DANIEL J. ROSENTHAL, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was conducted in this case on November 20, 1996, in Fort Lauderdale, Florida, before Judge Michael M. Parrish, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Albert Peacock, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Wilson Jerry Foster, Esquire

1342 Timberlane Road, Suite 101-A Tallahassee, Florida 32312

STATEMENT OF THE ISSUE

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of paragraphs (m) and (t) of Section 458.331(1), Florida Statutes. By stipulation the parties have

resolved all issues other than a determination as to what penalty is appropriate.

PRELIMINARY STATEMENT

Prior to the final hearing in this case, the parties entered into a Joint Stipulation which was received as Joint Exhibit One at the hearing. The stipulation contains numerous findings of fact and conclusions of law which the parties agree should be adopted in this Recommended Order. The Petitioner did not offer any evidence other than the Joint Stipulation. The Respondent testified on his own behalf and also offered three additional exhibits, all of which were received.

At the conclusion of the hearing the parties were allowed ten days from the filing of the transcript within which to file their respective proposed recommended orders. The transcript was filed with the Division of Administrative Hearings on December 6, 1996. Thereafter, both parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. The proposals of both parties concentrate primarily on the issue of what penalty should be imposed. The proposals have been carefully considered during the preparation of this Recommended Order.

FINDINGS OF FACT

Stipulated findings of fact

1. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.42, Florida

   Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes.

2. Respondent is and has been at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0046569. Respondent’s last known address is 3000 N. University Drive, Coral Springs, Florida 33065.

3. Respondent is board certified in internal medicine.

   
   

4. Patient S. F., a 76 year old diabetic female, had been under Respondent’s medical supervision since 1989.

5. During an office visit on or about November 1, 1990, Respondent ordered a CBS (complete blood count) which revealed a hypochromic microcytic anemia (an anemia characterized by decreased hemoglobin content such as iron-deficiency anemia).

6. Respondent ordered iron studies and stool for occult blood on or about November 16, 1990. These results clearly indicated an iron deficiency anemia.

7. In June of 1991, Respondent reordered a CBC which revealed a worsening anemia of classic iron deficiency. However, no follow-up treatment or testing was accomplished to address this condition.

8. The medical records of Patient S. F. on August 22, 1991 visit with the Respondent reflect a diagnosis of “anemia ? chronic disease.” During the same visit, another CBC was ordered that again revealed an iron-deficiency anemia. A request for a gastroenterology consultation was noted by the Respondent on the

   laboratory form, however, such consultation was never accomplished.

9. On or about September 14, 1992, Patient S. F. visited Respondent complaining of paid in her left ankle. Respondent diagnosed Patient S. F. as having possible osteoarthritis and scheduled her for a physical.

10. On or about September 29, 1992, Patient S. F. was admitted to Humana Cypress with gangrene of her left leg and phlebitis of her right leg.

11. Patient S. F. was transferred to Hospice on or about October 7, 1992, and expired on or about October 8, 1992.

12. Respondent’s records do not note a skin exam on diabetic Patient S. F. with complaints referable to her ankle, do not contain a medication list, and do not explain why appropriate follow-up for the anemia was not taken.

13. Respondent practiced below an acceptable standard of care in regard to Patient S. F. by failing to take appropriate follow-up treatment or diagnostic action on Patient S. F.’s iron deficiency anemia.

14. Respondent practiced below an acceptable standard of care in regards to Patient S. F. by failing to take appropriate follow-up treatment or diagnostic action on Patient S. F. after a CBC ordered in June of 1991 and a CBC reordered on or about August 22, 1991, revealed a worsening anemia of classic iron

    deficiency. Failure to follow-up this finding for nearly two years is not practicing the standard of care.

    Additional findings based on evidence at hearing

    
    

15. The Respondent completed his residency and became board certified in Internal Medicine in 1985. He has practiced in the Coral Springs area since 1985 and, since 1988, has practiced with a family practice physician. The Respondent has active staff privileges at Coral Springs Medical Center and University Hospital in Tamarac.

16. During 1996, the Respondent had a risk management assessment of his office performed by a certified risk manager, Dr. Mickey Demos. That assessment reflects favorably on the Respondent’s current office management practices. The assessment did not, however, address the manner in which the Respondent evaluates and interacts with his patients.

    CONCLUSIONS OF LAW

    
    

    Stipulated conclusions of law

    
    

17. Respondent is guilty of the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonable prudent similar physician as being acceptable under similar conditions and circumstances in that Respondent failed to pursue an appropriate plan or treatment for Patient S. F.’s iron deficiency anemia, Respondent failed to follow up on the anemia found in patient S. F., and Respondent

    failed to meet the applicable standard of care in his examination, diagnosis, and treatment of Patient S. F.

18. Based on the foregoing, Respondent violated Section 458.331(1)(t), Florida Statutes, and is guilty of 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 circumstances.

19. Respondent is guilty of failing to keep written medical records justifying the course of treatment of Patient S. F. in that Respondent failed to justify why the anemia found in Patient

    S. F. was not appropriately followed up.

    
    

20. Based on the foregoing, Respondent violated section 458.331(1)(m), Florida Statutes, and is guilty of 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.

    Additional conclusions of law

    
    

21. The Respondent has admitted that the conduct which forms the basis for the charges in this proceeding constituted a violation of paragraphs (m) and (t) of Section 458.331(1), Florida Statutes; the first of these violations having to do with inadequate medical records and the second having to do with failure to practice medicine with the required level of care,

skill, and treatment. These are serious violations which had serious consequences. By way of mitigation, the Respondent has established that he has taken steps towards the goal of preventing any such violations in the future. However, the record in this case is insufficient to show whether those steps have resulted in a demonstrable improvement in the manner in which the Respondent evaluates and interacts with his patients. Accordingly, although the Respondent’s efforts to prevent similar violations in the future warrant some mitigation of the penalty, they do not warrant as much mitigation as is sought by the Respondent.

RECOMMENDATION

On the basis of all of the foregoing it is RECOMMENDED that the Board of Medicine enter a Final Order in this case concluding that the Respondent has violated the provisions of paragraphs (m) and (t) of Section 458.331(1), Florida Statutes, and imposing a penalty consisting of: (a) an administrative fine in the amount of two thousand five hundred dollars ($2,500.00), (b) a requirement that the Respondent within one year of the date of the Final Order complete twenty (20) additional hours of continuing medical education comprised of courses approved by the Board, and (c) placement of the Respondent on probation for a period of one year with a provision that during the period of probation the Respondent shall practice under the indirect supervision of a physician approved by the Board and shall provide such reports regarding his practice during the period of probation as may appear necessary to the Board.

DONE AND ENTERED this 10th day of January, 1997, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301-3060

(904) 488-9675 SUNCOM 278-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1997.

COOPIES FURNISHED:

Albert Peacock, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Wilson Jerry Foster, Esquire

1342 Timberlane Road, Suite 101-A Tallahassee, Florida 32312

Dr. Marm Harris, Executive Director Board of Medicine

Agency for Health Care Administration 1940 Monroe Street

Tallahassee, Florida 32399-0792

Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32309

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will isssue the final order in this case.

Docket for Case No: 96-001217

Orders for Case No: 96-001217