STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SABIH KAYAN, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 96-2016F

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

FINAL ORDER

On July 24, 1996, a formal administrative hearing was held in this case by televideo conferencing before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bruce D. Lamb, Esquire

Shear, Newman, Hahn and Rosenkranz, P.A. Post Office Box 2378

Tampa, Florida 33619

For Respondent: Steven Rothenburg, Esquire

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

Tampa, Florida 33619 STATEMENT OF THE ISSUE

The issue in this case is whether the Agency for Health Care Administration (AHCA) prosecution of the Petitioner for alleged violations of the Medical Practices Act was "substantially justified" under the terms of Section 57.111, Fla. Stat. (1995), the Florida Equal Access to Justice Act.

PRELIMINARY STATEMENT

On May 1, 1996, the Petitioner, Sabih Kayan, M.D., filed a Petition for Award of Attorney's Fees and Costs under Section 57.111, Fla. Stat. (1995). In its written response, AHCA admitted: that the Petition was timely; that the Petitioner prevailed in case administrative complaint initiated by AHCA against him for alleged violations of the Medical Practices Act; that there were no "special circumstances which would make an award unjust" under Section 57.111, Fla. Stat. (1995); and that the Petitioner's reasonable attorney's fees and costs in defending himself in that action exceeded the statute's $15,000 cap.

Final hearing was scheduled for July 24, 1996. At the parties' request, they were permitted to participate from Tampa via a televideo connection

arranged between the Division of Administrative Hearings (DOAH) in Tallahassee and the Park Trammell State Office Building in Tampa.

At final hearing, AHCA stipulated that the Petitioner qualifies as a "small business party," and the only remaining issue to be tried was whether AHCA's prosecution was "substantially justified," as defined by Section 57.111, Fla.

Stat. (1995). The parties presented Joint Exhibits 1 through 10 in support of their arguments on the issue.

At the conclusion of the hearing, AHCA ordered the preparation of a transcript of the final hearing, and the parties were given ten days from the filing of the transcript in which to file proposed recommended orders. Explicit rulings on the proposed findings of fact contained in the parties' proposed final orders may be found in the Appendix to Final Order, Case No. 96-2016F.

FINDINGS OF FACT

1. On October 27, 1993, AHCA's predecessor agency, the Department of Business and Professional Regulation (DBPR) went before a probable cause panel of the Board of Medicine and requested a probable cause finding essentially that the Petitioner practiced psychiatric medicine below the applicable standard of care when he transferred a psychiatric patient at the Pinellas County Jail from one location to another within the jail. The panel found probable cause, and DBPR filed its Administrative Complaint, DBPR Case No. 92-17009, later DOAH Case No. 94-5120.

   
   

2. In pertinent part, the Administrative Complaint alleged: that the patient had been upgraded from suicide precaution to suicide observation on the day before Dr. Kayan saw him on June 29, 1990; that Dr. Kayan transferred the patient to Delta Unit 1, 2 or 3 (from B-Wing) on July 4, 1990; that the Delta units are an extension of the medical wing for inmates who do not need acute psychiatric care and do not pose a suicidal threat; that there was no documentation that Dr. Kayan consulted with either the jail psychologist or the other jail psychiatrist before the transfer; that Dr. Kayan did not see the patient during the three days following the transfer; that the patient attempted suicide on July 7, 1990; and that Dr. Kayan practiced psychiatric medicine below the applicable standard of care "by transferring Patient No. 1 from a suicide observation unit . . . to a unit in the jail where Patient No. 1 was not given the needed observation or security." Eventually, a Final Order was entered finding that AHCA did not prove the charges.

   
   

3. DBPR's request for a probable cause finding was based on an expert opinion from Charles Rosenberg, M.D., which was in turn based on an DBPR's Investigative Report. Dr. Rosenberg is an internist, not a psychiatrist, and he has not practiced medicine since 1986. However, he has expertise in the practice of medicine in prison settings, and it was reasonable for the DBPR to rely on his opinion for purposes of determining whether there was probable cause. The Investigative Report covered interviews with several witnesses and the pertinent medical records.

   
   

   Level of Patient Observation

   
   

4. Dr. Rosenberg's opinion report (Exhibit 2b) stated that Dr. Kayan on July 4, 1990, created a medical record that the patient would be transferred to the Delta 1, 2 or 3, and that "W. C. was then transferred to a less secure housing environment on that date. . ." (pg. 1). In addition, Dr. Rosenberg stated that "the decision by Dr. Kayan to transfer him to a housing area where

   he would be less frequently observed, was made without any input from any of the mental health professionals" and that the transfer was "to a housing area with considerably less surveillance and where he apparently would no longer be seen on a frequent basis, if at all, by mental health staff." (pg. 2). Dr. Rosenberg also stated his opinion that the "patient was not stable enough to be taken off of suicide observation, as the subsequent course of events so tragically verifies." (pg. 3) Dr. Rosenberg then repeated, on page 4, that the patient was "transferred to a less secure housing environment "

   
   

5. A careful and thoughtful reading of the medical records from the Pinellas County Jail (Exhibit 10.2c) would have suggested that the level of observation of the patient had actually been changed on June 29, and not July 4, 1990. On page 30 of said exhibit, Dr. Kayan used the Greek letter delta for the word "change" to indicate that, on June 29, 1990, he changed the patient's status from "SO to PO", meaning an upgrade from suicide observation status to psychiatric observation status. On this same page is Dr. Kayan's order of July 4, 1990, which merely transferred the patient to another unit, the Delta Unit, without changing the level of inmate observation.

   
   

6. Dr. Rosenberg missed the significance of Dr. Kayan's notation on June 29, 1990. As a result, he assumed that the change in status with attendant changes in protocol occurred on July 4, 1990. Neither the DBPR staff nor any member of the probable cause panel noticed Dr. Rosenberg's error.

   
   

7. Dr. Rosenberg's error is more understandable in light of other parts of the Investigative Report. On page 8, the Investigative Report related the substance of an interview with Dr. VanDalen, who is identified as a jail social worker with a Ph.D. in education psychology:

   
   

   It was Dr. Van DALEN's [sic] job at that time to assess and evaluate the inmates on B-wing in conjunction with the psychiatrist (Dr.

   KAYAN) regarding the inmates' suicidal tendencies and to determine whether or not they were stable. . . . On the day of W. C.'s assessment, W. C. Appeared to be stable enough to be considered for movement (to Delta).

   Delta is an extension of the medical wing for inmates who do not need the acute psychiatric care. They have been stabilized and therefore placed in Delta wing which is a psychiatric observation wing. Although he provided input into whether or not W. C. should be transferred, Dr. KAYAN made the final decision. W. C., however, was stabilized at that time. . . .

   If they at any time felt uncomfortable with transferring him, they would not have done so. When they made the decision to transfer him, they had his (W. C.'s) input, the information in his medical chart, including his previous records along with the information from jail officers and nurses.

   
   

   It would not have been unreasonable for Dr. Rosenberg and the panel to assume, based on this part of the report, that care was taken in assessing the patient before transfer from B-wing to Delta because the patient's status and level of observation and security was being changed at that time.

8. Even if there were no change in status between B-Wing and the Delta units, it also was not clear from the Investigative Report that there also was no difference in level of observation and security between B-Wing and the Delta units. As already indicated, parts of the report of the interview with Dr. VanDalen suggested that patients received greater attention on B-Wing. Meanwhile, page 6 of the Investigative Report related the substance of an interview with Frances M. Bell, Director of Nurses:

   
   

   Currently and during the time in question,

   B-Wing was a medical unit which included acute psychiatric patients as well as medical patients who needed further evaluations.

   Individuals are initially evaluated in B-wing by the psychiatrist and medical

   doctor. They are closely monitored every fifteen (15) minutes or if they are an acutely suicidal person they are monitored one on one, twenty-four (24) hours/day. In the unit, they are stripped for their own protection. B-wing is just an intake area for individuals to be evaluated or until an

   acute condition is under control, i.e. suicide threat. They then leave the unit to go to Delta Unit which is an direct [sic] 1/ observation unit having one officer in a

   pod of sixteen patients or inmates. These individuals are checked every fifteen minutes. The records indicate that W. C. was in pod 2, a psychiatric observation pod where he was checked every fifteen (15) minutes. The

   nurse also makes her rounds at 9 A.M., 1 P.M., 5 and 9 P.M.

   
   

   It is not difficult to understand why there might have been confusion as to whether there was a difference in level of security and observation on the two wings, even assuming the patient's status was the same.

   
   

   Alleged Lack of Input from Others

   
   

9. Dr. Rosenberg also asserted that the decision to transfer the patient to the Delta Unit on July 4, 1990, was made without input from any other mental health professional. On page 2, Dr. Rosenberg's report stated: "The decision by Dr. Kayan to transfer him to a housing area where he would be less frequently observed [was made without input from any of the other mental health professionals] who had participated in his initial management." [Emphasis added.] On page 3, paragraph 5, Dr. Rosenberg's report stated: "[No consultations were involved] in this case. More to the point, however, was the [lack of any communication between any members of the mental health staff] regarding this patient which each of them had seen and evaluated. Thus, the decision to transfer him out of suicide observation was [made by Dr. Kayan, without their input]." [Emphasis supplied.]

   
   

10. Given Dr. Rosenberg's belief that the change from suicide observation to a lesser status occurred on July 4, 1990, the investigative report would not support the conclusion that Dr. Kayan made the decision on his own, without input. Clearly, according to the report of the interview with Dr. VanDalen

    contained in the Investigative Report, Dr. VanDalen participated in the decision. See Finding 7, above. On the other hand, it is possible that Dr. Rosenberg did not consider Dr. VanDalen to be one of the "other mental health professionals." The report stated that, although VanDalen had a Ph.D. in Education Psychology, his job title was Forensic Social Worker. Dr. Rosenberg's concerns centered on the absence of any indication that Dr. Kayan consulted with Dr. Dennis, a psychiatrist who saw the patient on July 3, 1990, and noted no improvement in his mental condition. Besides, ironically, if Dr. Rosenberg had correctly understood that the decision to transfer the patient out of suicide observation was made on June 29, not July 4, 1990, his belief that the decision was made without the input of others would have been supported by the investigative report and the medical records.

    
    

    Which Health Care Practitioner was Responsible?

    
    

11. Dr. Rosenberg, in his report, attributed the responsibility for this patient, for the time period between July 4, the date of transfer to Delta, through July 7, the date of the suicide attempt, to Dr. Kayan. On page 7 of the Investigative Report, Frances Bell, the director of nurses, was quoted:

    
    

    [D]uring the time in question, Georgia BRANDSTADTER- PALMER was the psychiatrist [sic] and Donald Van Dalen [sic] was the social worker both of whom

    were employed by the jail. Dr. Donald DENNIS, a psychiatrist who was also working at the jail

    on the weekends at the time, is no longer working as such and his whereabouts are unknown.

    
    

    Dr. Dennis was interviewed by the Investigator, and the report of his interview appears on page 9 of the Investigative Report. Dr. Dennis stated that he "vaguely recalls W. C. whom he did not see on the day he attempted suicide although it had occurred on the weekend while he was on duty." However, given Dr. Rosenberg's mistaken belief that the patient's status was upgraded from suicide observation to psychiatric observation status on July 4, 1990, and the confusion in the Investigative Report as to the differences between the two, it would not be unreasonable for Dr. Rosenberg to be of the opinion that it was incumbent upon Dr. Kayan to take steps to communicate directly with Dr. Dennis or one of the psychologists to be sure that one of them saw the patient after the transfer to Delta. In addition, the failure of the psychiatrists and psychologists to see the patient at all from July 4 to July 7 could have been viewed as support for Dr. Rosenberg's belief that the patient's status was changed on July 4, 1990.

    
    

    Amended Administrative Complaint

    
    

12. After the initiation of the original Administrative Complaint on November 4, 1993, discovery was undertaken by the parties. In addition, AHCA obtained an additional expert opinion from Gerald H. Ratner, M. D. (Exhibits 2c and d and 4a). Based upon this additional information, AHCA recommended to the Probable Cause Panel that an Amended Administrative Complaint be filed against Dr. Kayan adding allegations that Dr. Kayan failed to adequately monitor and/or further evaluate the patient after prescribing the drug Ascendin and that Dr. Kayan failed to keep adequate medical records.

    
    

13. The matter was submitted to a new Probable Cause Panel on March 8, 1995, and the second Probable Cause Panel found probable cause to file the Amended Administrative Complaint.

    CONCLUSIONS OF LAW

    
    

14. In pertinent part, Section 57.111, Fla. Stat. (1995), provides for the payment of attorney fees and costs incurred in a formal administrative proceeding to a "prevailing small business party," as defined in the statute, "unless the actions of the state agency were substantially justified "

    Section 57.111(4)(a).

    
    

15. "A proceeding is substantially justified if it had a reasonable basis in law and in fact at the time it was initiated by the state agency." Section 57.111(3)(e). See Gentele v. Dept. of Prof. Reg., 513 So. 2d 672, 673 (Fla. 1st DCA 1987). See also Final Order, Alice White, etc., v. DHRS, DOAH Case No. 93- 7160F, entered May 25, 1994, aff'd, 681 So.2d 685 (Fla. 2d DCA 1995); Final Order, Woodson v. Dept. of Prof. Reg., DOAH Case No. 91-4278F, entered October 31, 1991; Final Order, Lindsey v. Dept. of Ins. and Treasurer, 11 F.A.L.R. 94,

    99 (DOAH 1988); Final Order, Romaquera v. Dept. of Prof. Reg., 10 F.A.L.R. 929 (DOAH 1988).

    
    

16. This case was initiated by the filing of the Administrative Complaint in DOAH Case No. 94-5120. The results of subsequent investigation or discovery, like the evidence presented at a final hearing, are not directly relevant to the inquiry; neither are matters related to the filing of the Amended Administrative Complaint. Id. "The Florida Act does not permit an inquiry into whether the agency persisted in maintaining a prosecution after it reasonably should have concluded that it would not succeed." Final Order, Arias, M.D., et al., v. Dept. of Prof. Reg., Board of Medicine, 13 F.A.L.R. 2648 (DOAH 1991) (the Arias Final Order).

    
    

17. The burden of proof in this case was on AHCA to prove that its Administrative Complaint was "substantially justified." See Dept. of Prof. Reg.

    v. Toledo Realty, Inc., 549 So.2d 1715 (Fla. 1st DCA 1989).

    
    

18. The Petitioner contends that AHCA's investigation and probable cause determinations were not a "meaningful inquiry" into the Petitioner's culpability. Cf. Fieber v. Dept. of Banking and Finance, 9 F.A.L.R. 5236 (DOAH 1987). The initial probable cause panel in this case acted on an investigative report and an expert opinion. Careful examination of the investigative report might have revealed that the expert opinion was based on some erroneous factual assumptions. However, the true facts were not clearly apparent, and the errors were not obvious. "It is not necessary for the probable cause panel to go behind the opinions of consultants hired by the Department, and to make independently their own examination of records, duplicating the evaluation of the consultant. If they must do so, there is little purpose in retaining consultants to review cases and little utility in having lay members of probable cause panels." See the Arias Final Order. In addition, parts of the investigative report were not accurate, and probable cause panels are not required to engage in mini-hearings to determine the accuracy of statements in investigative reports when making probable cause determinations. Id. See also Gentele, supra. Under these circumstances, the Probable Cause Panel had a reasonable basis in fact to find probable cause.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of Law, the Petition for Award of Attorney's Fees and Costs under Section 57.111, Fla. Stat. (1995), is denied.

DONE AND ORDERED this 21st day of August, 1996, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1996.

ENDNOTE

1/ Either the article "an" or the adjective "direct" was error; it is not clear which.

APPENDIX TO FINAL ORDER, CASE NO. 96-2016F

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

Petitioner's Proposed Findings of Fact.

1.-8. Accepted and incorporated to the extent not subordinate or unnecessary.

1. First sentence, accepted and subordinate to facts found; second, accepted but subordinate and unnecessary; third, rejected as contrary to the greater weight of the evidence; fourth, accepted but subordinate and unnecessary.

2. Rejected as contrary to the greater weight of the evidence.

1. First paragraph, accepted and incorporated; second, rejected as contrary to the greater weight of the evidence; third, rejected as contrary to the Investigative Report that Bell called it "a direct observation unit, but otherwise accepted and incorporated.

2. First paragraph, accepted and incorporated; second, rejected as contrary to the greater weight of the evidence that a mere "cursory review" would have clearly revealed all of the facts, but otherwise accepted and incorporated.

3. Accepted and incorporated.

11.-12. Rejected as contrary to the greater weight of the evidence.

1. Accepted and incorporated.

2. First sentence, accepted and incorporated; rest, irrelevant, subordinate and unnecessary.

15.-16. Irrelevant, subordinate and unnecessary.

17. Accepted and incorporated to the extent not subordinate or unnecessary.

18.-19. Irrelevant, subordinate and unnecessary.

20. Cumulative either in whole or in part; if the latter, in part irrelevant, subordinate and unnecessary.

Respondent's Proposed Findings of Fact.

1.-6. Accepted and incorporated to the extent not subordinate or unnecessary.

COPIES FURNISHED:

Bruce D. Lamb, Esquire

Shear, Newman, Hahn and Rosenkranz, P.A. Post Office Box 2378

Tampa, Florida 33601

Steven Rothenburg, Esquire

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

Tampa, Florida 33619

Douglas M. Cook, Director

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Jerome W. Hoffman, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Tallahasssee, Florida 32308-5403

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 96-002016F

Orders for Case No: 96-002016F