STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD ) OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 97-3122

)

HUMBERTO FONTANA, M.D., )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on January 8 and 9, 1998, in Miami, Florida, before Judge Michael M. Parrish, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Carol Lanfri, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: W. Sam Holland, Esquire

Hinshaw & Culbertson

First Union Financial Center

200 South Biscayne Boulevard, Suite 800 Miami, Florida 33131

STATEMENT OF THE ISSUE

This is a license discipline case in which the Petitioner seeks to take disciplinary action against a licensed medical doctor. By means of a two-count Administrative Complaint, the Respondent is charged with violations of Sections 458.331(1)(m) and 458.331(1)(t), Florida Statutes, by allegedly failing to keep written medical records justifying the course of treatment of a patient, and by failing to practice medicine with the required level of care, skill, and treatment. The Respondent denies the violations charged in the Administrative Complaint, and also asserts that the Administrative Complaint should be

dismissed by reason of the Petitioner's failure to timely investigate and prosecute the subject charges.

PRELIMINARY STATEMENT

On January 5, 1998, the Respondent filed a Motion To Dismiss For Failure To Comply With Time Requirements. On that same day an order was issued which included the following language:

1. That the motion seeking dismissal of this proceeding is denied without prejudice to the renewed filing of a similar motion following the final hearing in this case.

   
   

2. That at the final hearing in this case, the Respondent will be allowed to present evidence relevant to the issues raised in the motion seeking dismissal, in addition to evidence relevant to the issues raised in the Administrative Complaint.

During the course of the final hearing on January 8 and 9, 1998, both parties presented the testimony of witnesses and offered exhibits. The Petitioner offered numerous exhibits, most of which were received in evidence.1 The Respondent offered one exhibit, which was received.2 The parties agreed to the late filing of post-hearing depositions of two witnesses, William G. Richardson and Rogelio Medel.

During the course of the final hearing, the Petitioner presented the live testimony of four witnesses, including the Respondent. During the presentation of the Respondent's case, the Respondent testified further on his own behalf, and also presented the expert testimony of Norman Korman, M. D.

On February 11, 1998, the transcript of the final hearing was filed with the Division of Administrative Hearings. On March 3, 1998, the transcripts of the post-hearing depositions of William G. Richardson and Rogelio Medel were filed.3

Following an extension of time, the Petitioner and the Respondent filed their proposed recommended orders on March 12, 1998, and March 17, 1998, respectively. On March 18, 1998, the Respondent also filed a memorandum of law in support of the Respondent's motion seeking the dismissal of this case. On April 7, 1998, the Petitioner filed a responsive memorandum of law addressed to the motion to dismiss. The post-hearing submissions of the parties have been carefully considered during the preparation of this Recommended Order.

FINDINGS OF FACT

Findings stipulated by the parties4

1. The Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida.

   
   

2. The patient R. C. presented with a history of diabetes and hypertension.

   
   

3. The Respondent did not attempt or make any contact with the primary care physician of patient R. C.

   
   

4. Brevital was administered intravenously to the patient

   R. C. without the use of an IV pump.

   
   

5. Resuscitative drugs and equipment should always be immediately available.

   
   

6. There is no documentation of respiratory monitoring during the administration of anesthetics and the surgical procedure performed on patient R. C.

   
   

7. It is well below the standard of care to both administer a general anesthesia and perform the surgical procedure.

   
   

   Findings based on evidence

   
   

8. At all times material, the Respondent has specialized in urology. The Respondent is not board certified in urology.

   
   

9. At all times material to this case, the Respondent was associated with a clinic named Instituto Latino Americano de Impotencia y Diagnostico (ILAID). One or two days each week, the Respondent would see patients at ILAID that were potential candidates for penile implant surgery.

   
   

10. At all times material to this case there were at least two other licensed physicians associated with ILAID who often were the first physicians to see patients who came to ILAID with complaints of impotency.

    
    

11. The subject patient (Patient R. C.) went to ILAID for the first time on May 24, 1993. On that day the patient signed a form titled "Patient Information," which contains little more than patient identification information, and a form titled "Patient's Declaration and Agreement."5 The patient probably saw a physician at ILAID on May 24, 1993, because a blood sample was

    taken from the patient that day and the results of the blood tests were reported back to ILAID on May 25, 1993. However, there is no documentation that the patient was seen by a physician at ILAID on May 24, 1993. Specifically, there is no medical chart documenting that on that day a physician took a history from the patient, examined the patient, evaluated the patient, ordered any tests of the patient, or otherwise treated or cared for the patient.

    
    

12. At all times material to this case, the routine practice and procedure of ILAID regarding patients who went to ILAID with complaints of impotency was to have the patients seen by a physician associated with ILAID. It was also the routine practice and procedure at ILAID for the physician who first saw the patient to prepare a-medical record documenting the patient's visit. Such a medical record would routinely document a patient history, an examination of the patient, the physician's evaluation of the patient, and any treatments given or tests ordered by the physician. The impotency patients at ILAID were also routinely put through an evaluation procedure to determine the extent of and the nature of their impotency before implant surgery was recommended or performed. The results of the evaluation procedure were also routinely documented in the patient's medical chart.

    
    

13. The Respondent first saw the subject patient on July 13, 1993, at the ILAID facility. On that date there were no patient records regarding the subject patient prepared by any other physician associated with ILAID for the Respondent to review. In the absence of any medical documentation, the Respondent apparently assumed that the patient had been through the normal routine at ILAID and proceeded to go forward on that assumption. On July 13, 1993, the Respondent took a brief, limited history from the patient and conducted a limited physical examination of the patient. The physical examination was limited to the patient's abdomen and urogenital area. Based on that limited history and examination, the Respondent concluded that penile implant surgery was an appropriate course of treatment, subject to the patient receiving medical clearance for the surgery.

    
    

14. The Respondent did not perform any objective tests for impotence on the patient. The Respondent did not obtain a detailed medical history from the patient. The Respondent did not obtain a detailed history regarding the nature, extent, or duration of the patient's impotence. The Respondent did not conduct a complete physical examination of the patient.

    
    

15. Prior to performing penile implant surgery, a physician should perform objective tests to determine if the

    surgery is indicated. Two objective tests that should always be performed are blood tests to determine the patient's testosterone level and prolactin level.6 Depending on the details elicited during the patient history, other objective tests may also be indicated.

    
    

16. The Respondent failed to have tests done to determine the testosterone level and the prolactin level of the patient. The failure to perform these two objective tests is a departure from acceptable standards of medical care recognized by a reasonably prudent similar physician.

    
    

17. Prior to performing penile implant surgery, a patient's condition must be assessed by a physician to determine whether surgery is indicated. The surgeon does not have to personally perform all aspects of the assessment of the patient's condition, but the surgeon must at least verify that an adequate assessment has been performed by another physician, and that the assessment has been documented in the patient's medical records. Adequate assessment of a patient's condition requires, at a minimum, a detailed medical history, a complete physical examination, and the performance of any objective tests indicated by the history and physical examination. The performance of surgery without either performing an adequate assessment of the patient's condition or verifying that such an assessment has been documented by another physician is a departure from acceptable standards of care recognized by a reasonably prudent similar physician.

    
    

18. The Respondent did not obtain a detailed medical history from the patient, did not perform a complete physical examination of the patient, and failed to order at least two objective tests that were indicated by the patient's complaints. The Respondent also failed to verify that documentation existed which showed that any other physician had obtained a detailed medical history from the patient, had performed a complete physical examination of the patient, and had ordered the objective tests indicated by the patient's complaints. If the Respondent had attempted to verify the existence of such documentation, he would have discovered that the documentation did not exist. The Respondent's performance of surgery on the patient without performing an adequate assessment of the patient's condition, or without verifying that such an assessment had been documented by another physician, was a departure from acceptable standards of medical practice.

    
    

19. The Respondent made arrangements for additional blood tests and for an EKG to be administered to the patient. The Respondent also believed that he had made arrangements for one of the other physicians at ILAID to medically clear the patient

    for surgery. Anticipating no problems regarding the medical clearance, the Respondent also contacted the director of ILAID, Rogelio Medel, and asked him to arrange a location for the implant surgery.

    
    

20. In view of the patient's financial circumstances and his lack of medical insurance, it was decided that the surgery would be done in an operating room at a physician's clinic, which would be somewhat less expensive than performing the surgery in a hospital operating room. Rogelio Medel contacted Dr. Francisco A. Prado and arranged for the use of one of the operating rooms at Dr. Prado's clinic. Rogelio Medel had made similar arrangements with Dr. Prado twice before. The arrangement with Dr. Prado was that Dr. Prado would provide not only the use of the operating room, but would also provide all necessary supplies (including the anesthesia medications), as well as the services of a nurse anesthetist, Eduardo Perez, who worked for Dr. Prado on a regular basis. The surgery was scheduled for early in the afternoon on July 16, 1993.

    
    

21. Unbeknownst to Rogelio Medel and to the Respondent, Eduardo Perez was not a licensed nurse anesthetist. The Respondent did not inquire of Eduardo Perez regarding the latter's qualifications or licensure status. Rather, relying on the representations of Dr. Prado, the Respondent assumed that Eduardo Perez possessed the necessary qualifications and licensure to function as a nurse anesthetist.

    
    

22. While it is clear that Eduardo Perez was not licensed as a nurse anesthetist, there is no clear and convincing evidence in the record as to whether Eduardo Perez was or was not trained in the use of anesthetics, was or was not trained in the use of respiratory and cardiac monitoring equipment, or was or was not trained in the use of resuscitative drugs and equipment.7 The Respondent assumed that Eduardo Perez was trained in these matters, based on the assumption that Eduardo was a licensed nurse anesthetist. In view of the representations of Dr. Prado, it was reasonable for the Respondent to make that assumption.8

    
    

23. The Respondent was not trained in the techniques and procedures of advanced cardiac life support. The Respondent was not trained in the use of a defibrillator. The Respondent was not trained in the use of anesthetics.

    
    

24. Prior to performing surgery on the subject patient, the Respondent had received a copy of the laboratory results dated July 16, 1993. He had also received a copy of the EKG report prepared by Dr. Freddie Rodriguez. Prior to performing the surgery, the Respondent had not received any written medical

    clearance for the patient to undergo the planned implant surgery. The Respondent never received any written medical clearance for the patient to undergo surgery, because the patient was never medically cleared. The Respondent did not receive any telephonic verification that the subject patient had been medically cleared for surgery, because no other physician had cleared the patient for surgery.9

    
    

25. Prior to performing surgery, it is the responsibility of the surgeon to verify that the patient has been medically cleared for the proposed surgery. Under similar conditions and circumstances, a reasonably prudent similar physician would not perform surgery without verification that the patient had been medically cleared for the proposed surgery. It is a departure from minimum standards of medical practice for a surgeon to perform surgery without such verification.

    
    

26. Early in the afternoon on July 16, 1993, the Respondent performed penile implant surgery on the subject patient. The surgery was conducted in one of the operating rooms at Dr. Prado's clinic, as previously arranged with Dr. Prado. During the surgery the patient was anesthetized with the anesthetic agents Versed and Brevital. These anesthetic agents were administered by Eduardo Perez, who was functioning as a nurse anesthetist. Eduardo Perez was present during the entire surgical procedure, during which time he monitored the administration of the anesthetic agents, monitored the patient's vital signs, and otherwise performed the functions that would be performed by a nurse anesthetist. At all times material, the Respondent believed, based on the representations of Dr. Prado, that Eduardo Perez was a licensed and qualified nurse anesthetist who regularly worked in that capacity for Dr. Prado.

    
    

27. When the surgical procedure had been completed, the Respondent left the patient in the care of Eduardo Perez while the Respondent left the operating room to change clothes. When the Respondent left the operating room the patient appeared to be normal. When the Respondent returned to the operating room a few minutes later, he noticed that the patient had become pale and sweaty. The Respondent also noticed that the patient had very little pulse or blood pressure. The Respondent and Eduardo Perez initiated cardiopulmonary resuscitation and also called fire rescue for assistance. The Respondent and Eduardo Perez continued their cardiopulmonary resuscitation efforts until the fire rescue personnel arrived a few minutes later. The fire rescue personnel initiated advanced cardiac life support measures and subsequently transported the patient to a hospital emergency room, where further efforts were made to resuscitate the patient. Shortly thereafter the patient was pronounced dead in the emergency room. Following an autopsy and investigation

    into the cause of death, the Dade County Medical Examiner was of the opinion that it could not be stated with any degree of medical certainty that the death of the subject patient was caused by the surgery.

    
    

28. In order to have medical records sufficient to justify penile implant surgery, a physician must have written medical records that document at least the following matters: (a) a detailed patient history; (b) a complete physical examination of the patient; (c) a consideration of alternative therapy options; and (d) a pre-operative medical clearance. With regard to the subject patient, the Respondent does not have, and never did have, written medical records documenting any of the four matters itemized immediately above. By failing to keep written medical records documenting such matters with regard to the subject patient, the Respondent failed to keep records justifying the course of treatment of the patient.10

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

30. The Petitioner is the state agency charged with regulating the practice of medicine pursuant to Sections 20.165 and 20.42, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 458, Florida Statutes.

    
    

    The Respondent's motion to dismiss

    
    

31. The Respondent argues that this case should be dismissed on the grounds that the Petitioner unreasonably delayed the prosecution of the case and that, as a result of such delay, the Petitioner was prejudiced in his ability to defend against the charges. In this regard the Respondent relies primarily on Carter v. Department of Professional Regulation, Board of Optometry, 613 So. 2d 78 (Fla. 1st DCA 1993). In Carter, the court recognized that violations of time limits in Section 455.225, Florida Statutes, might, in some cases, provide a basis for dismissal of an administrative complaint. However, at page 81, the court in Carter concluded:

    
    

    We decline, however, to treat violations of section 455.225 time limits as requiring dismissal of the complaint or voiding of the order as a matter of law. Rather, we hold that the licensee, as the moving party, has the burden to establish a basis for dismissal by showing (1) that the board or department

    has violated the time limits in section 455.225, and (2) that the consequent delays may have impaired the fairness of the proceedings or the correctness of the action and may have prejudiced the licensee. In so holding, we follow the analysis used by the supreme court in Department of Business Regulation v. Human in respect to violations of the 90-day requirement in section 120.59(1). The policy reasons for the holding in Hyman apply with equal force in the case at bar. There, as here, the legislature had specified no sanction for agency noncompliance with a statutory time limitation. The supreme court explained in Hyman that, under such circumstances, the statutory time requirement must be read in conjunction with section 120.68(8), which the supreme court characterized as "the harmless error rule for agency action. " As a condition precedent to relief because of an agency's failure to follow prescribed procedure, Section 120.68(8) requires a finding that such failure may have impaired "either the fairness of the proceedings or the correctness of the action."

    Carter established that the department and the board violated the section 455.225 time limitations. But, because he failed to demonstrate that the delays may have impaired the fairness of the proceedings or the correctness of the action and may have prejudiced him, Carter was not entitled to dismissal of the administrative complaint.

    
    

32. Here, as in Carter, the motion to dismiss must be denied because the Respondent has failed to demonstrate that any delays in the prosecution of this case "may have impaired the fairness of the proceedings or the correctness of the action and may have prejudiced him.11 The Respondent's argument that he has been prejudiced by the delays is predicated primarily on the unavailability of three witnesses; Dr. Mateo, Dr. Guerreros, and Mr. Eduardo Perez. The Respondent has failed to show that the unavailability of these witnesses has in any way prejudiced his ability to prepare and present his defenses to the charges in the Administrative Complaint. The primary failing in this regard is the Respondent's failure to show that any of the three unavailable witnesses had any information that was relevant to the issues in this case, specifically the charges set forth in

    the Administrative Complaint.12 Such being the case, the motion to dismiss must be denied.

    
    

    The applicable evidentiary standards

    
    

33. In a case of this nature, proof greater than a mere preponderance of the evidence must be submitted. Clear and convincing evidence is required. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); McKinney v. Castor, 667 So. 2d 387, 388 (Fla. 1st DCA 1995); Tenbroeck v. Castor, 640 So. 2d 164, 167 (Fla. 1st DCA 1994); Nair v. Department of Business and Professional Regulation, 654 So. 2d 205, 207 (Fla. 1st DCA 1995); Pic N' Save v. Department of Business Regulation, 601 So. 2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So. 2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So. 2d 500 (Fla. 3rd DCA 1991); Pascale v. Department of Insurance, 525 So. 2d 922 (Fla. 3rd DCA 1988); Section 120.57(1)(h), Florida Statutes. ("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute.")

    
    

34. "'[C]lear and convincing evidence requires that 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. "' In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

35. The disciplinary action taken against the licensee may be based only upon those offenses specifically alleged in the administrative complaint. See Cottrill v. Department of Insurance, 685 So. 2d 1371 (Flat 1st DCA 1996); Kinney v. Department of State, 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

    
    

36. In determining whether Sections 458.331(1)(m) and 458.331(1)(t), Florida Statutes, have been violated in the manner charged in the Administrative Complaint, one "must bear in mind that it is, in effect, a penal statute. This

    being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably

    proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

    
    

    Count One of the Administrative Complaint

    
    

37. Count One of the Administrative Complaint alleges that the Respondent violated Section 458.331(1)(t), Florida Statutes, by reason of the following alleged conduct: ". . . Respondent failed to perform objective tests to determine if the surgical procedure was medically indicated. Respondent failed to adequately assess [p]atient R. C's condition pre-operatively and did not obtain medical clearance for the surgery. Respondent inappropriately administered anesthesia without the presence or availability of personnel trained in the use of anesthetics, respiratory and cardiac monitoring, or resuscitative drugs and equipment.'

    
    

38. The acts for which disciplinary action may be taken against a physician include Section 458.331(1)(t), Florida Statutes, which, at all times material, read as follows, in pertinent part:

    
    

    (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.

    
    

39. Count One of the Administrative Complaint alleges four different reasons for concluding that the Respondent violated Section 458.331(1)(t), Florida Statutes. Each of those reasons must be considered separately. Turning first to the allegation that the Respondent failed to perform objective tests to determine if the surgical procedure was medically indicated, the evidence clearly shows that the Respondent did not perform any such tests. A reasonably prudent similar physician under similar conditions and circumstances would have performed objective tests to determine if the surgical procedure was medically indicated.13 The Respondent's failure to do so was a departure from acceptable minimum standards of medical care and was a violation of Section 458.331(1)(t), Florida Statutes, as charged in this portion of Count One of the Administrative Complaint.

    
    

40. With regard to the allegation that the Respondent failed to adequately assess the subject patient's condition pre- operatively, the evidence clearly shows that the Respondent did

    not adequately assess the patient's condition pre-operatively. Consistent with the routine practice at ILAID, such an assessment of a patient would often be made by one of the other physicians associated with ILAID, but neither the Respondent's medical records nor the medical records at ILAID reflect that any other physician associated with ILAID performed an adequate assessment of the subject patient. The failure to perform an adequate assessment of the patient's condition pre-operatively was a violation of Section 458.331(1)(t), Florida Statutes, as charged in this portion of Count One of the Administrative Complaint.

    
    

41. With regard to the allegation that the Respondent did not obtain medical clearance for the surgery, the evidence is clear that no physician ever cleared the patient for surgery. The evidence is also clear that it was a deviation from acceptable standards of care for the Respondent to perform surgery without such clearance. Accordingly, by performing surgery without medical clearance, the Respondent violated Section 458.331(1)(t), Florida Statutes, as charged in this portion of Count One of the Administrative Complaint.

    
    

42. With regard to the allegation that the Respondent inappropriately administered anesthesia without the presence or availability of personnel trained in the use of anesthetics, respiratory and cardiac monitoring, or resuscitative drugs and equipment, the evidence is insufficient to sustain the violation charged. There are two fundamental voids in the evidence related to this charge. First, there is no clear and convincing evidence to the effect that the Respondent administered anesthesia to the subject patient. To the contrary, the persuasive evidence is to the effect that the anesthesia was administered by Eduardo Perez. Second, there is no clear and convincing evidence that Eduardo Perez was untrained in such matters as "the use of anesthetics, respiratory and cardiac monitoring, or resuscitative drugs and equipment."14

    Accordingly, this portion of the charge in Count One of the Administrative Complaint should be dismissed for lack of sufficient evidence.

    
    

    Count Two of the Administrative Complaint

    
    

43. Count Two of the Administrative Complaint alleges that the Respondent violated Section 458.331(1)(m), Florida Statutes, by reason of the following alleged conduct: "Respondent failed to document a detailed history, physical examination, alternative therapy options, and a pre-operative medical clearance in the medical records." The acts for which disciplinary action may be taken against a physician include

    Section 458. 331(1)(m), Florida Statutes, which, at all times material, read as follows:

    
    

    (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.

    
    

44. The Petitioner has proved by clear and convincing evidence that the Respondent failed to keep written medical records sufficient to justify the course of treatment of the subject patient. The Respondent did not have any written medical records documenting a detailed patient history. The Respondent did not have any written medical records documenting a general physical examination of the subject patient. The Respondent did not have any written medical records documenting any alternative therapy options for the subject patient. The Respondent did not have any written medical records documenting a pre-operative medical clearance of the subject patient. By reason of this lack of documentation, at the time of performing surgery on the subject patient, the Respondent did not have written medical records sufficient to justify the course of treatment upon which the Respondent embarked. This lack of documentation constitutes a violation of Section 458.331(1)(m), Florida Statutes, as charged in Count Two of the Administrative Complaint.

    
    

    The appropriate penalty

    
    

45. In its proposed recommended order, the Petitioner argues that the appropriate penalty in this case should be the revocation of the Respondent's license. Upon consideration of all of the circumstances surrounding this case, license revocation appears to be an excessive and inappropriate penalty. There are several mitigating factors to be considered. First is the fact that the Respondent has practiced in Florida for many years without any prior disciplinary action. Second, it can not be concluded with any degree of medical certainty that the death of the subject patient was caused by the surgery. Third, the events which form the basis for the charges in this case all took place more than five years ago, and the Respondent appears to have continued in practice during that five-year period without any untoward incident. And, finally, the events which form the basis for the charges in this case appear to be an aberrant departure from the Respondent's routine practice and are not likely to be repeated.

46. Upon consideration of the nature of the violations proved and consideration of the mitigating factors discussed above, it appears to the undersigned that the appropriate penalty in this case is an administrative fine in the amount of

$5,000.00 for the violations proved related to Count One of the Administrative Complaint, an administrative fine in the amount of $1,000.00 for the violation proved related to Count Two of the Administrative Complaint, and suspension of the Respondent's license for a period of 90 days.

RECOMMENDATION

On the basis of all of the foregoing it is RECOMMENDED that a Final Order be issued in this case concluding that the Respondent has violated Sections 458.331(1)(t) and 458.331(1)(m), Florida Statutes, imposing a penalty consisting of the imposition of administrative fines totaling $6,000. 00, and the suspension of the Respondent's license to practice medicine for a period of 90 days.

DONE AND ENTERED this 23rd Day of September, 1998, in Tallahassee, Leon County, Florid

__________________________________ MICHAEL M. PARRISH

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

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1998.

ENDNOTES

1/ The Petitioner premarked most of its exhibits as Petitioner's Exhibits A through M. During the course of the hearing, the Petitioner added Petitioner's Exhibit N. Petitioner's Exhibits A, C, F. I, J. K, L, and M were received without objection. (By agreement of the parties, the contents of Petitioner's Exhibit M were supplemented post-hearing.) Petitioner's Exhibit B was offered and was rejected on the grounds that it consisted primarily of irrelevant information. Petitioner's Exhibits D and E were not offered in evidence.

Petitioner's Exhibit G (and its subparts G1 and G2) was received, subject to objections to several portions of Exhibit

G. The objections are identified and discussed at pages 300-308 of the transcript. The judge reserved ruling on those objections. Upon consideration, the objections are well-taken and are sustained. Accordingly, the portions of the Reisman deposition identified and discussed at pages 300-308 of the hearing transcript have been treated as proffered testimony that was not received in evidence, and no fact-finding has been based on those portions of Dr. Reisman's deposition testimony. Petitioner's Exhibit H was received over objection.

Petitioner's Exhibit N was offered and was objected to. The judge reserved ruling on the objection. Upon consideration, the objection was well-taken and is sustained. Petitioner's Exhibit N has been treated as a proffered exhibit that was not received in evidence, and no fact-finding has been based on that exhibit.

2/ The Respondent's sole exhibit was the curriculum vitae of Dr. Norman Korman.

3/ The testimony in the post-hearing depositions has been treated the same as testimony presented at the final hearing. The parties agreed to the correction and clarification of a portion of the deposition of William G. Richardson. The Petitioner filed a motion to strike portions of the post-hearing deposition of Rogelio Medel. Oral argument was heard on the motion, but a written ruling was not issued at that time. Upon consideration, the motion to strike is denied. Due note has been taken of the Petitioner's arguments in determining the weight to be given to the testimony of Rogelio Medel.

4/ In their preheating stipulation, the parties stipulated to the findings of fact that appear in paragraphs 1 through 7.

5/ The "Patient's Declaration and Agreement" was written in Spanish.

6/ The Respondent agrees that these two objective tests should always be performed on impotence patients. (Pages 170-171 of the hearing transcript.)

7/ The Petitioner's proposed recommended order contains some proposed findings of fact regarding the training and qualifications of Eduardo Perez. The Petitioner cites as support for these proposed findings portions of the testimony of Investigator Louis Collado and portions of the testimony of Medical Examiner Roger Mittleman, M. D., regarding their respective telephone interviews of Eduardo Perez. This testimony is unpersuasive and falls far short of the clear and

convincing standard. First, it is, at best, hearsay evidence that does not come within any of the recognized exceptions to the hearsay rule. Second, the interviews were all conducted over the telephone with a person who was not previously known by either interviewer, which leaves unresolved any verification of the identity of the person who identified himself on the telephone as Eduardo Perez. Third, neither Investigator Collado nor Medical Examiner Mittleman appeared to have much independent recollection of the details of their respective investigations. Most of Collado's testimony consisted of reading passages from his written report or answering "yes" when passages of the report were read to him. Some of the information in Collado's report is clearly incorrect. Other portions are likely incorrect. As to one part of the report, even Mr. Collado conceded: "I have to admit that I am surprised that I see it here." (Page 280 of the hearing transcript.) Similarly, Dr.

Mittleman appeared to have very little independent recollection

of the details of his investigation. His testimony was based primarily on a reading of his handwritten notes. At some points Dr. Mittleman even had difficulty interpreting the significance or meaning of his handwritten notes. Dr. Mittleman did not appear to have any distinct recollection of what was actually said by Perez during Dr. Mittleman's second conversation with Perez. Evidence of this quality does not constitute clear and convincing evidence.

8/ The Respondent's assumption that Eduardo Perez was appropriately trained may have been correct. As noted elsewhere, there is no clear and convincing evidence as to whether Eduardo Perez was or was not appropriately trained.

9/ The Respondent testified that prior to the surgery he called someone at ILAID and received confirmation over the telephone that the subject patient had been cleared for surgery. The Respondent's testimony in this regard is unpersuasive for several reasons. First, the Respondent cannot remember who he talked to and he is very vague about what was purportedly said to him about the medical clearance. Second, the Respondent never documented the medial clearance in his pre-surgical medical records. Third, there is no documentation that any physician at ILAID or elsewhere medically cleared the subject patient for surgery. Fourth, De. Freddie Rodriguez, the physician who interpreted the patient's EKG, testified that he had not been asked to medically clear the subject patient for surgery and that, if he had been asked to do so, he would not have cleared the patient for elective surgery without further investigation of abnormalities revealed in the EKG.

10/ There is conflicting expert opinion as to the sufficiency of the Respondent's records. The more persuasive and logical

evidence is to the effect that the Respondent's records were insufficient.

11/ Attention is also directed to Ong v. Department of Professional Regulation, 565 So. 2d 1384 (Fla. 5th DCA 1990), in which the court reached a conclusion similar to that in Carter in disposing of a licensee's contention that an administrative complaint should be dismissed on the basis or laches. The court in Ong recognized that, in some cases, dismissal might be appropriate on the basis of laches, but the court denied relief to Dr. Ong, primarily because, "[m]ore importantly we disagree that appellant has demonstrated any prejudice due to any delay in commencement of this proceeding." Ong, at page 1386.

12/ Dr. Mateo was the subject patient's treating physician before the patient went to ILAID. The Respondent admits that he never had any communication with Dr. Mateo. It follows logically that Dr. Mateo never had any information about the Respondent's treatment of the subject patient if the two doctors never communicated with each other. Dr. Mateo would perhaps have had information about the patient's condition at that time is irrelevant to the issues in this case. What is relevant to this case is the patient's condition at the time he was being treated by the Respondent, and the steps that were or were not taken to determine, evaluate and document the patient's condition while he was under the care of the Respondent. These are matters about which Dr. Mateo has not been shown to have had any information. Dr. Guerrero was an unlicensed physician who was employed at ILAID during the time the subject patient was under the care of the Respondent. Dr. Guerrero was not shown by competent substantial evidence to have played any role in the treatment or evaluation of the subject patient or to have otherwise been knowledgeable about the Respondent's care and treatment of the patient. Mr Perez was present when the Respondent performed surgery on the subject regarding the charge that the Respondent "inappropriately administered anesthesia without the presence or availability of personnel trained in the use of anesthetics, respiratory and cardiac monitoring, or resuscitative drugs and equipment." However, the Respondent was not prejudiced by the unavailability of Mr. Perez, because the Respondent has prevailed on that charge. Furthermore, the Respondent has failed to show that Mr. Perez had any information regarding any other issue in this case.

13/ There is conflicting expert opinion in the record regarding the need for the objective tests. On this subject, the opinions of Dr. Reisman, which are consistent with the routine practices described b Dr. Rodriguez, are more persuasive than the conflicting options.

14/ The evidence is clear that Eduardo Perez was unlicensed, but, as noted elsewhere, there is no persuasive evidence one way or the other as to his training.

COPIES FURNISHED:

Carol Lanfri, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

W. Sam Holland, Esquire Hinshaw & Culbertson

First Union Financial Center

200 South Biscayne Boulevard, Suite 800 Miami, Florida 33131

Tanya Williams, Executive Director Board of Medicine

Department of Health 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Angela T. Hall, Agency Clerk Department of Health

Bin A02

2020 Capitol Circle Southeast Tallahassee, Florida 32399-1703

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: 97-003122

Orders for Case No: 97-003122