STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD ) OF MEDICINE, )
)
Petitioner, )
)
vs. ) Case No. 98-0330
)
JOSEPH RICHICHI, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Tampa, Florida, on November 17-19, 1998.
APPEARANCES
For Petitioner: Kristina L. Sutter
John Terrel Senior Attorneys
Agency for Health Care Administration 2727 Mahan Drive
Tallahassee, Florida 32308
For Respondent: Grover C. Freeman
Jon M. Pellett
Freeman, Hunter & Malloy
201 East Kennedy Boulevard, Suite 1950 Tampa, Florida 33602
STATEMENT OF THE ISSUE
The issue is whether Respondent is guilty of departing from the applicable standard of care, failing to keep adequate medical records, or making deceptive, untrue, or fraudulent
representations in the practice of medicine and, if so, what penalty should be imposed.
PRELIMINARY STATEMENT
By Administrative Complaint dated October 13, 1997, Petitioner alleged that Respondent is a licensed physician to whom T. M. presented on April 3, 1991, with a complaint of rectal bleeding and that Respondent diagnosed bleeding hemorrhoids without performing a history or physical examination.
The Administrative Complaint alleged that T. M. presented to Respondent on June 28, 1991, with complaints of rectal bleeding and urinary urgency, at which time Respondent examined her.
The Administrative Complaint alleges that, on July 2, 1991, Respondent performed a sigmoidoscopy on T. M. and prescribed Librax for the treatment of irritable bowel syndrome.
The Administrative Complaint alleges that, on September 24, 1991, T. M. presented to Respondent with a complaint of rectal bleeding. The Administrative Complaint alleges that Respondent failed to refer T. M. to a specialist, did not perform a colon cancer screen, and did not perform a complete blood count to check T. M.'s hemoglobin level for significant blood loss.
The Administrative Complaint alleges that, on December 27, 1991, T. M. presented to another physician who performed a sigmoidoscopy and found a firm rectal mass. A biopsy later
allegedly revealed colon cancer, and T. M. underwent a colo- rectal resection with colostomy.
The Administrative Complaint alleges that Respondent deviated from the applicable standard of care by failing appropriately to treat and diagnose T. M. by not taking a new history and physical for her, not assessing her condition using lab tests such as a colon cancer screen or complete blood count, and not referring her to a gastrointestinal specialist.
The Administrative Complaint alleges that the failure to take a new history and physical, failure to perform lab tests such as a colon cancer screen or complete blood count, and failure to refer T. M. to a gastrointestinal specialist violated Section 458.331(1)(t), Florida Statutes.
The Administrative Complaint alleges that Respondent made alterations and additions to T. M.'s medical records by adding, on January 10, 1992, that she had visited Respondent on April 3, 1991, for the purpose of refilling a prescription, adding to her medical history, altering the notes regarding Respondent's discussions with T. M. regarding her treatment and follow-up care through the addition to her records of September 24, 1991, that she was to go to a gastroenterologist if her rectal problems did not end, and failing to initial any of these changes as late entries.
The Administrative Complaint alleges that the failure to keep medical records justifying the course of treatment--
specifically, the failure to keep records justifying the failure to perform a complete history and physical, the failure to perform a colon cancer screen or complete blood count, and the failure to refer T. M. to a gastrointestinal specialist--violated Section 458.331(1)(m), Florida Statutes.
The Administrative Complaint alleges that the alterations and additions to the medical records constituted a deceptive, untrue, or fraudulent representation in the practice of medicine, or the employment of a trick or scheme in the practice of medicine, and violated Section 458.331(1)(k), Florida Statutes.
At the hearing, Petitioner called two witnesses and offered into evidence 12 exhibits. Respondent called four witnesses and offered into evidence nine exhibits. All exhibits were admitted except Petitioner Exhibits 3 and 4. Petitioner Exhibit 11 was the resumé of Dr. Cooper. Petitioner failed to file this exhibit with the Division of Administrative Hearings, so the Administrative Law Judge deems the exhibit withdrawn.
The court reporter filed the transcript on December 21, 1998.
FINDINGS OF FACT
Respondent has been a licensed physician in Florida continuously since August 30, 1983. His license number is ME 0042770. Respondent has never been disciplined and has, since the events described below, attended a course on the preparation of medical records.
Respondent has been Board Certified in Family Practice since 1995. He specializes in the area of family practice and maintains his office in the Naples Medical Center in Naples.
T. M., who was born on June 13, 1951, presented to Respondent for the first time on April 3, 1991. She had seen other physicians at the Naples Medical Center, but not Respondent. She had last visited the Naples Medical Center on February 25, 1988.
T. M. had several purposes in her first visit with Respondent. First, she wanted to establish herself as a patient of Respondent following the retirement of her previous physician. Second, she wanted a prescription for Premarin following an earlier hysterectomy. Third, she wanted to determine if she had any need for a PAP smear.
T. M. completed a patient questionnaire during the April 3 office visit. In her answers, T. M. affirmed that she
had had "hemorrhoids or rectal bleeding," but she underlined only "hemorrhoids." She denied any colitis or other bowel disease, constipation or diarrhea, or recent change in bowel action or stools.
T. M.'s testimony that she was experiencing a feeling of pressure in her bowels and felt the need to have a bowel movement when she did not need to have one is not credited. It is inconsistent with the history, as discussed below, that T. M.
related to Respondent's office on her second office visit and later to Dr. Cooper.
In the medical records for the April 3 office visit, Respondent noted that he reviewed T. M.'s chart and discussed her physical, "etc." The notes state that Respondent found no need for a PAP smear due to prior hysterectomy and bilateral salpingo- oophorectomy. The notes add that T. M. daily uses Premarin, which replaces estrogen, that she is not cycling, and that she will return to the office as needed. The notes report that T. M. will return to the office as needed. The notes record that T. M. will need a mammogram this year and that Respondent is refilling her Premarin prescription.
These are Respondent's original medical records for
T. M. As noted below, following Respondent's discovery that another physician had detected colo-rectal cancer in T. M. in January 1992, Respondent made additions to his notes. He did not date the additions to show that they were added months after the original notes.
At the top of the notes, Respondent added: "Needs prescription--refill Premarin." After "etc.," Respondent added: "Family history of cancer + preventative care." Immediately preceding "RTO PRN" (which means return to office as needed), Respondent added: "Wants to." Immediately after this shorthand notation, Respondent added: "+ will call to reschedule." Adding the number 1 to the mammogram note and the number 3 to the refill
Premarin note, Respondent also inserted a number 2, which states: "labs + physical this year."
Within a few weeks of this initial office visit, T. M. began to experience problems with her bowels in the form of rectal bleeding and the feeling of pressure, as though she had to have a bowel movement or urinate when she did not. In June 1991,
T. M. set up an appointment for June 28.
By this time, T. M. was finding red blood in her stool and when she wiped her rectum with toilet paper. She told the nurse that she had been experiencing this problem for two months.
The nurse recorded T. M.'s report of blood in her stool and the feeling of needing to move her bowels when she did not really need to do so.
Respondent noted in the medical records: "Tenesmus." "Tenesmus" is the sensation of an urge to have a bowel movement. Under "tenesmus," Respondent wrote: "Bleeding + urgency urination."
At this point, Respondent correctly commenced the process of diagnosis, rather than screening which is the performance of a test on an asymptomatic population. T. M. presented with specific complaints and symptoms that required diagnosis; by the second visit, she had self-screened.
T. M.'s relevant history was that family members had had cancer, but not colon cancer. She had had hemorrhoids, but only during her two pregnancies.
Respondent performed a focused examination to determine the source of T. M.'s complaints. Respondent conducted a urinalysis to rule out a urinary tract infection. The urinalysis was negative.
Respondent next performed an anoscopy. An anoscope is a funnel-like instrument 4-6 inches long that is inserted into the anus. A separate light source allows the physician to observe the anus and rectum, just past the anal verge, for a total distance of about 6 centimeters.
Respondent placed his finger into T. M.'s anus, but not for the purpose of conducting a digital rectal examination. A physician conducting an anoscopic examination first inserts a finger into the anus in order to relax the sphincter and confirm the absence of any blockages that would prevent the insertion of the anoscope. Consistent even with Respondent's augmented records, Respondent performed no separate digital examination of
T. M.'s rectum.
The purpose of the digital rectal examination is to feel the contour of the rectal wall for bumps, irregularities, or areas of unusual consistency.
Although the location of T. M.'s cancerous lesion would have been within reach of a digital examination, the record does not establish that that anything would have been discoverable at the time of the June 28 office visit. Testimony to this effect from Petitioner's expert witness, Dr. Thomas Hicks, did not
establish clear and convincing proof because, despite Dr. Hicks' evident competence, of his expertise in family medicine, rather than oncology, and the difficulty of determining, in hindsight, the likely size of cancerous lesions based on their condition months later after surgical intervention.
The parties discuss in their proposed recommended orders Respondent's failure to document a digital rectal examination, but their shared assumption--that one took place--is unwarranted. The failure to perform a digital rectal examination raises a question as to Respondent's conformance with the applicable standard of care, but the real standard-of-care issue is Respondent's handling of the preparation of a treatment plan. As Dr. Hicks' testified, the timely preparation of a treatment plan would have satisfied all standard-of-care issues, despite the failure to perform a digital rectal examination.
The situation is similar as to the performance of a hemocult blood test. Respondent's testimony that he performed one is rejected as a fabrication. The records reflect no such test. The failure of the medical records to document the hemocult blood test is thus explained by the failure of Respondent to conduct this test.
The anoscopy was negative. Respondent recorded in his medical records: "Anoscope + Hemorrhoids. No clots."
Following the anoscopy, Respondent tentatively diagnosed T. M. as suffering from hemorrhoids. However,
Respondent set up an appointment for T. M. to return to the office for a sigmoidoscopy, which would allow examination of the lower intestine above the area examined by the anoscope.
Respondent made undated additions to the medical records for the June 28 office visit. Below the recorded findings from the anoscopy, Respondent later added: "Wall color looks OK." In the original record, Respondent concluded the entries with documentation that he prescribed Anusol and stool softener and would perform a "Sigmoid to [check mark] higher up." The relevant changes were to write "Plan" beside these notes, number the three steps, and add "for malignancy" after "higher up."
On July 2, 1991, T. M. visited Respondent's office so that he could conduct a sigmoidoscopy. This examination involves the insertion of a flexible tube, with its own light source, through the anus and rectum and into the sigmoid colon up to 60 centimeters for observation of the rectum and sigmoid colon.
Respondent was able to insert the sigmoidscope 45 centimeters, which was adequate. He detected a spastic colon, hemorrhoids, and diverticuli, but no lesions or strictures. The absence of lesions or strictures is an indicator of the absence of precancerous or cancerous conditions. The findings of the sigmoidoscopy were thus consistent with Respondent's working diagnosis of hemorrhoids.
Respondent again made undated additions to T. M.'s medical records, but the additions are unremarkable augmentations to the original notes, which adequately described the findings of the sigmoidoscopy.
Following the June and July office visits, T. M.'s symptoms worsened. She began bleeding between bowel movements and was losing more blood. She felt tired all the time. She continued to feel pressure in the area of her rectum.
Respondent discussed with T. M. her symptoms. He learned that she experienced some constipation, but no spasms, no feeling of a foreign body in her anus, and no abdominal or urinary tract pain. Respondent noted these findings in T. M.'s medical records.
For the September 24 office visit, the medical records reflect the above-described discussion together with Respondent's recommendation that T. M. take a stool softener. Respondent later added notes showing that he reviewed the findings of the sigmoidoscopy. In the space between two lines in the original records, Respondent added: "She may need colonoscopy + referred to GI." Other additions immaterially expanded on the original notes. At the bottom of the note for this office visit, Respondent added: "To GI soon if not resolved. She will call."
Respondent produced a "super bill" for the September 24 office visit. The bottom of the bill contains a block for the next appointment. The lower left-hand corner of the block states
"wait." The remainder of the block states: "Appt. Dr. K. Hussey. Reason: rectal bleeding. Needs colonoscopy." Beneath this block at the very bottom of the page is the following statement: "(She will call us)."
T. M. did not have her copy of this super bill.
Nothing in the record suggests that, when requested to provide T. M.'s medical records to the New York physician, Respondent's office sent a copy of the super bill, which Respondent unsuccessfully contends is part of T. M.'s medical records.
While notations on super bills that do not functionally assist in the process of ensuring continuity of care do not qualify as medical records, the other question concerning the super bill is whether it serves as contemporaneous documentation of Respondent's recommendation that T. M. consult a gastroenterologist.
Respondent's readiness to add undated entries to
T. M.'s medical records inspires no confidence in the self- serving note contained at the bottom of the super bill. To the contrary, given the succinctness of Respondent's unaltered medical records, it is unlikely that Respondent would take the time, on a bill, to write in the reason for the appointment with Dr. Hussey and the need for a colonoscopy. The parenthetical comment that T. M. will call Respondent's office renders these entries even more suspicious. A preponderance of the evidence, but not clear and convincing evidence, suggests that these
entries on the super bill are also undated additions following Respondent's discovery that T. M. had rectal cancer.
T. M. did not return to Respondent. Instead, while visiting her brother-in-law, who is a physician, in New York over Christmas, she scheduled an appointment on December 27, 1991, with a gastroenterologist who practiced with the brother-in-law. The physician performed a digital rectal examination and found a firm irregular area on the anterior wall of the rectum. A sigmoidoscopy revealed a large ulcerated lesion approximately 2 to 3 centimeters above the anal verge. After additional diagnostic work, a surgeon removed the lesion and performed a permanent colostomy in early January 1992.
Petitioner contends in its Proposed Recommended Order that Respondent deviated from the applicable standard of care when he did not order a complete blood count during the September
24 office visit. However, Dr. Hicks accurately defined the issue when he testified that the complete blood count, as was the case with the omission of a digital rectal examination on the June 28 office visit, would not have represented a departure from the applicable standard of care if Respondent had timely prepared a treatment plan.
The issue of the timeliness of the preparation of a treatment plan arises as of the September 24 office visit.
Dr. Hicks' testimony precludes a finding that the failure to develop a treatment plan to pursue an alternative to the working
diagnosis of hemorrhoids was a departure from the applicable standard of care any earlier than the September 24 office visit.
As of the September 24 office visit, though, Respondent had three alternatives. He could either perform sufficient diagnostic tests to explore T. M.'s ongoing symptoms, he could refer her to a gastroenterologist, or he could briefly continue treatment of hemorrhoids.
There is no dispute that Respondent attempted further diagnostic tests after the September 24 office visit; he did not do so.
Respondent contends that he continued treatment of the hemorrhoids. There is a brief note on December 2, 1991, that
T. M. received a prescription to control bowel spasms. However, Respondent's nurse evidently prescribed this medication on her own, and the spasms were not shown to be linked to hemorrhoids.
To the contrary, Respondent testified that he felt that her problem at the September 24 office visit was likely constipation, which could aggravate the hemorrhoids. There is no evidence that Respondent elected, at the end of the September 24 office visit, to briefly continue treating hemorrhoids; if nothing else, Respondent's contentions about a gastroenterological referral tend to undermine further treatment by him of hemorrhoids.
There is no dispute that Respondent could have met the applicable standard of care by referring T. M. to a
gastroenterologist at the end of the September 24 office visit. However, the evidence is clear and convincing, despite Respondent's testimony and other evidence to the contrary, that he did not do so. This finding is based partly on the testimony of T. M., whose recall of her visits with Respondent and her visit with Dr. Cooper is obviously imprecise and sometimes inaccurate. This finding is also based on a close assessment of the evidence offered by Respondent to support his contention that he made a referral.
Assessment of Respondent's contention of a referral begins with close examination of the already-noted entry, "She may need colonoscopy + referral to GI." This entry does not evidence a recommendation of a consultation, but rather mentions the possibility that a consultation might take place in the future.
On January 10, 1992, T. M.'s mother called Respondent and informed him of T. M.'s rectal cancer surgery. At this time, Respondent, who was unaware that his office had already supplied a copy of T. M.'s original medical records to her New York physician, made all of the above-described changes in the medical records, plus another, properly dated entry, which states: "I recommended GI at last visit for a check-up or a colonoscopy but she did not schedule."
However, despite the fact that Respondent made these two notes on the same date, they reveal a significant
discrepancy. Unlike the added note for September 24, which refers to a future referral, the note for January 10 refers to an actual referral.
In a deposition taken four years after the surgery, Respondent gave a more elaborate version of whether he made a referral during the September 24 office visit and reveals the same variation between an actual referral and a possible referral in the future. Taken for a pending medical malpractice action that T. M. had brought against Respondent, the deposition testimony states:
Q. You would agree with me, sir, if you failed to get her to see a doctor other than yourself to get this problem checked out that that would have been a breach in the standard of care?
A. If I failed to what?
Q. If you failed to send her to a doctor--if you said, T[.], you need to get somebody to check this out, I want you to go get this checked out, then you would have breached the standard of care, wouldn't you, sir?
A. If I told her to go somewhere?
Q. If you failed to tell her.
A. I would agree.
* * *
Q. All right. Did you suspect in your differential diagnosis on 9-24-91 when she came in that could be rectal cancer? Was that in your differential diagnosis?
A. Yes, it could have been.
Q. Okay. When you told her that you--I assume that you told her then--it's your contention you told her at that time you could have rectal cancer; correct?
A. No.
Q. You didn't tell her that?
A. No.
Q. Why not?
A. Because--I mean, I told her that she needed to have this evaluated. That doesn't mean she has rectal cancer, to get it evaluated.
Q. Well, what did you tell her if you suspected that she could have that and that was properly in your differential diagnosis to impress upon her the need to follow through, if anything?
A. You mean to scare her into getting--into making an appointment?
Q. Well, not to scare her. You didn't need to scare her to do it, did you?
A. No.
Q. Well, what did you say to her to get her to make the appointment?
A. That she should--if this doesn't resolve, she should get an opinion from a gastroenterologist.
Q. If this doesn't resolve; is that right?
A. If this continues.
Q. Okay. So if I understand what you're saying now, you didn't tell her you definitely need today to go get this. You told her, well, if it doesn't resolve, then you should see somebody--see a gastroenterologist?
A. That why the--
Q. Am I correct?
A. Well, I sort of let it--well, I didn't leave it at that, but it was--it was problem enough to get some other opinion.
Q. Why was it problem enough to get some other opinion?
A. Because it's been so persistent.
* * *
Q. What do you mean, because it's been so persistent?
A. Well, the complaint has been going on for months.
Q. Okay. And what about that persistency that this complaint's been going on for months made it difficult to have her go see somebody else?
A. Well, it wasn't that. It was--I think it was her hesitance to make an appointment, whether to have something done or not or to have an operation or to have, you know, the hemorrhoids looked at. It wasn't that type of thing that she was looking forward to, so we sort of put a wait on it. We didn't go through with making the appointment.
Q. Okay. When you say we put a wait on it, then this was something you discussed?
A. Right.
Q. And she—what did she say that gave you the impression that she wanted to wait?
A. Well, she was--you know, she was upset about the whole thing.
Q. Okay, because it had been going on so long?
A. Right.
Q. And you said--
A. Then--then about the other--then going to another physician, of having a specialist-- specialist look at her to do a procedure, you know, the same type of procedure except it would be more thorough, more--you know, a colonoscopy and possibly some procedure like a surgical procedure.
Q. Well, was it your belief on 9-24-91 that it could, in fact, be just simply hemorrhoids?
A. It was possible, but that--that wasn't--I mean, there was hemorrhoids, but that might not have been the reason for all her problems.
Q. Did you ever say to her, T[.], the persistence of this problem leads me to believe that it might be something other than hemorrhoids? Did you ever say anything like that to her?
A. Yes. But I did not mention malignancy or anything like that.
Q. Were you trying to convince her to go get another opinion or another examination?
A. No. I mean, I didn't.
Q. Why not?
A. Right now I don't recall why not, but--
Q. Okay.
(Petitioner Exhibit 5, pages 117-22.)
Each of Respondent's recountings of his discussion with
T. M. on September 24 varies with regard to whether he recommended a referral or merely discussed the possibility of a referral in the future. The thrust of the deposition testimony
is essentially is that Respondent was concerned about the possibility of rectal cancer and wanted T. M. to see a gastroenterologist, that T. M. resisted this recommendation, and that, in the face of this resistance, Respondent did not voice his concern about the need to rule out rectal cancer. This testimony is simply not credible. If he were making a firm recommendation of a referral, he would have voiced his explicit concerns, even if only as to the necessity at this time to rule out these more serious possibilities. If Respondent discussed a referral with T. M. at all, he mentioned nothing more than the possibility of a referral at some point in the future; interestingly, this is consistent with the additions to the September 24 medical records.
Thus, the evidence is clear and convincing that Respondent did not refer T. M. to a gastroenterologist at the end of the September 24 office visit. The evidence is clear and convincing that Respondent did not prepare any other form of treatment plan, besides a referral, that would meet the applicable standard of care.
As for the fraudulent alteration of medical records, the first question is whether Respondent discussed even a future referral with T. M. during her September 24 office visit. It is a close question, but the evidence is less than clear and convincing that Respondent did not discuss even the possibility of a future referral, just as the evidence is less than clear and
convincing that Respondent fabricated the note on the super bill. However, the evidence is clear and convincing that the January 10 note fraudulently claims that Respondent recommended a gastroenterological consultation for a check-up and colonoscopy, but T. M. did not schedule an appointment.
As for whether the medical records justify the scope and course of treatment, this issue is subsumed in the standard- of-care and fraudulent-records issues. To the extent that the records (i.e., September 24 entry) fail to reflect a clear referral to a gastroenterologist or alternative treatment plan, they do not justify the scope and course of treatment, but this issue is covered by the standard-of-care issue. To the extent that the records (i.e., January 10 entry) are fraudulent, this issue is covered by the fraudulent-record issue.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)
Section 458.331(1)(t) provides for discipline for 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." All references in this recommended order to the "applicable standard of care" are to this statutory definition.
Section 458.331(1)(m) provides for discipline for the failure to keep "written medical records justifying the course of treatment of the patient "
Section 458.331(1)(k) provides for discipline for making "deceptive, untrue or fraudulent representations in or related to the practice of medicine "
Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Petitioner has proved by clear and convincing evidence that Respondent departed from the applicable standard of care by not referring T. M. to a gastroenterologist at the conclusion of the September 24 office visit.
Petitioner has proved by clear and convincing evidence that Respondent made a fraudulent entry in T. M.'s medical records for January 10, 1992, and in the super bill following the September 24 office visit, when he noted that he referred her to a gastroenterologist.
There is overlap between the proven charges and the allegation that Respondent failed to keep medical records justifying the course of treatment. Petitioner has thus failed to prove a separate violation of this statutory provision.
Respondent argues that the allegations do not correspond to the proof of violations. Count One alleges, among
other things, that Respondent failed to refer T. M. for a gastrointestinal consultation. This is what Petitioner proved.
Count Three alleges that Respondent made deceptive, untrue, or fraudulent representations in or related to the practice of medicine by adding to T. M.'s medical records of September 24, 1991, that she was to go to a gastroenterologist soon if her rectal problems were not resolved, and then failing to initial the additions.
Strictly speaking, Petitioner proved by clear and convincing evidence only two instances of fraud: the clear referral contained in the super bill, which was supposedly prepared on September 24, and the clear referral contained in the January 10, 1992, entry, which followed or accompanied the telephone call from T. M.'s mother. These pleadings sufficiently inform Respondent that he has been charged with fraudulent recordkeeping concerning the September 24 office visit. It is immaterial that the fraudulent entries are contained in a super bill, which Respondent contended was part of the medical records, or in the January 10 office note, which is intended, as is clear from its inclusion in T. M.'s chart, to be part of the medical records on which continuity of care depends.
Respondent also argues that, at the time in question, the law governing post-dated entries in medical records was less clear. Arguably, the law may have permitted post-dated entries that did not bear the subsequent date of their preparation, but
Respondent's argument depends on its assertion that Respondent's additions were not substantive or deceptive. For the most part, Respondent's assertion is true, but not in the case of the super bill and the January 10 entry. These entries were a fraudulent distortion of the facts, which support, at most, a discussion of a referral, but not a referral, during the September 24 office visit.
Rule 64B8-8.001(2) provides a penalty of two years' probation to revocation and a fine of $240 to $5000 for a violation of the applicable standard of care and a penalty of probation to revocation and a fine of $250 to $5000 for a violation of the prohibition against fraudulent representations in the practice of medicine.
These penalties are for single count violations. In this case, there are two separate violations: the failure to satisfy the standard of care and the making of fraudulent entries in the medical records.
In addressing other aggravating or mitigating circumstances, it is important not to cast this case as a departure from the applicable standard of care in a failure to diagnose. Respondent's departure from the applicable standard of care was in his failure to refer T. M. to a gastroenterologist at the end of the September 24 office visit; it was not in the failure to diagnose rectal cancer at that time. No substantial evidence in the record warrants the finding that T. M. had a
detectable cancerous rectal lesion as of September 24. Thus, nothing in the record warrants the inference that a gastroenterologist examining T. M. shortly after September 24 would have found a rectal lesion.
Mitigating factors include that Respondent has not previously been disciplined. Petitioner argues that his fraudulent entries proves a desire to benefit financially by escaping liability. Nothing in the record supports this inference to the exclusion of the equally likely inference that he did so out of fear, embarrassment, and shame.
In its Proposed Recommended Order, Petitioner seeks a reprimand, one-year suspension, one-year probation, ten hours of continuing medical education in ethics, and a $5000 fine. The penalties, especially the duration of the suspension, are too harsh.
It is
RECOMMENDED that the Board of Medicine enter a final order finding Respondent guilty of one violation of Section 458.331(1)(t) and 458.331(1)(k), but not Section 458.331(1)(m), and imposing the following penalties for these two violations:
30 days' suspension followed by two years' probation, ten hours of continuing medical education in ethics, and a $10,000 fine.
DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida.
ROBERT E. MEALE
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1999.
COPIES FURNISHED:
Kristina L. Sutter John Terrel
Senior Attorneys
Agency for Health Care Administration 2727 Mahan Drive
Tallahassee, Florida 32308
Grover C. Freeman Jon M. Pellett
Freeman, Hunter & Malloy
201 East Kennedy Boulevard, Suite 1950 Tampa, Florida 33602
Angela T. Hall, Agency Clerk Department of Health
Bin A02
2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
Pete Peterson, General Counsel Department of Health
Bin A02
2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
Tanya Williams, Executive Director Board of Medicine
Department of Health 1940 North Monroe Street
Tallahassee, Florida 32399-0750
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 must be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Jul. 06, 1999 | Final Order filed. |
| Apr. 26, 1999 | Petitioner`s Response to Respondent`s Exceptions to Recommended Order (filed via facsimile). |
| Apr. 16, 1999 | Respondent`s Exceptions to Recommended Order (filed via facsimile). |
| Apr. 02, 1999 | Recommended Order sent out. CASE CLOSED. Hearing held 11/17-19/98. |
| Jan. 15, 1999 | Petitioner`s Proposed Recommended Order filed. |
| Jan. 15, 1999 | Respondent`s Proposed Recommended Order; Disk filed. |
| Jan. 11, 1999 | (Petitioner) Motion for Extension to File Recommended Order (filed via facsimile). |
| Dec. 28, 1998 | Order Granting Motion for Extension of Time to Submit Proposed Recommended Order sent out. |
| Dec. 22, 1998 | (Petitioner) Motion for Extension of Time to Submit Proposed Recommended Order (filed via facsimile). |
| Dec. 21, 1998 | Order Awarding Fees and Costs sent out. |
| Dec. 21, 1998 | (3 Volumes) Transcript filed. |
| Dec. 14, 1998 | Notice of Filing Respondent`s Exhibit Nine (Judge has original & Certified Copy of Exhibit) filed. |
| Dec. 10, 1998 | Letter to Judge Meale from J. Pellett (RE: stipulated cost for attorney fees) (filed via facsimile). |
| Dec. 02, 1998 | (Respondent) Notice of Filing (filed via facsimile). |
| Nov. 24, 1998 | (Respondent) Notice of Taking Deposition by Teleconference for Preservation of Testimony (filed via facsimile). |
| Nov. 20, 1998 | Petitioner`s Exhibit 11 (filed via facsimile). |
| Nov. 17, 1998 | CASE STATUS: Hearing Held. |
| Nov. 13, 1998 | Petitioner`s Motion for Reconsideration and Clarification of Imposition of Sanctions w/exhibits filed. |
| Nov. 13, 1998 | Respondent`s Motion to Take Testimony by Teleconference and in the Alternative Motion for Preservation and Use of Testimony by Late Filed Deposition (filed via facsimile). |
| Nov. 13, 1998 | Joint Prehearing Statement (filed via facsimile). |
| Nov. 13, 1998 | (Petitioner) Amended Motion to Take Official Recognition (filed via facsimile). |
| Nov. 13, 1998 | (Respondent) Notice of Hearing and Change of Location (filed via facsimile). |
| Nov. 12, 1998 | Petitioner`s Memorandum of Law in Opposition to Respondent`s Motion to Dismiss and/or Motion in Limine (filed via facsimile). |
| Nov. 10, 1998 | (Petitioner) Amended Motion for Extension of Time to Respond (filed via facsimile). |
| Nov. 10, 1998 | (Petitioner) Motion for Extension of Time to Respond (filed via facsimile). |
| Nov. 06, 1998 | Order Granting Motion for Preservation and Use of Testimony by Video Deposition sent out. |
| Nov. 06, 1998 | Petitioner`s Response to Respondent`s Motion to Change Venue (Location of Formal Hearing) (filed via facsimile). |
| Nov. 04, 1998 | (Loreen I. Kreizinger) Notice of Special Appearance and Motion for Protective Order (filed via facsimile). |
| Nov. 02, 1998 | Petitioner`s Motion for Preservation and Use of Testimony by Video Deposition (filed via facsimile). |
| Nov. 02, 1998 | (Petitioner) Notice of Taking Video Deposition in Lieu of Live Testimony (filed via facsimile). |
| Nov. 02, 1998 | (Petitioner) Notice of Taking Video Deposition in Lieu of Live Testimony (filed via facsimile). |
| Oct. 30, 1998 | (Respondent) Motion to Change Venue (Location of Formal Hearing) (filed via facsimile). |
| Oct. 28, 1998 | Order Granting Respondent`s Request for Sanctions and Petitioner`s Motion for Preservation and Use of Testimony by Video Deposition sent out. |
| Oct. 28, 1998 | (Respondent) Notice of Filing Notice of Taking Deposition Duces Tecum; (Respondent) Notice of Taking Deposition Duces Tecum (filed via facsimile). |
| Oct. 28, 1998 | Respondent`s Motion to Dismiss the Administrative Complaint and/or Motion in Limine (filed via facsimile). |
| Oct. 21, 1998 | (Petitioner) (2) Notice of Taking Deposition filed. |
| Oct. 16, 1998 | Petitioner`s Motion for Preservation and Use of Testimony by Video Deposition (filed via facsimile). |
| Oct. 14, 1998 | Notice of Taking Deposition Duces Tecum (Richard Blancharr, M.D.) (filed via facsimile). |
| Sep. 22, 1998 | Respondent`s Third Notice of Unavailability (filed via facsimile). |
| Aug. 03, 1998 | Order Granting Continuance and Fourth Notice of Hearing sent out. (hearing rescheduled for Nov. 17-18, 1998; 9:00am; Naples) |
| Jul. 29, 1998 | (Petitioner) Motion to Continue filed. |
| Jul. 07, 1998 | Respondent`s Notice of Unavailability (filed via facsimile). |
| Jul. 01, 1998 | Petitioner`s Reply to Respondent`s Response to the Request for Sanctions filed. |
| Jul. 01, 1998 | Petitioner`s Reply to Respondent`s Response to the Request for Sanctions (filed via facsimile). |
| Jun. 30, 1998 | Respondent`s Reply to Petitioner`s Response to the Request for Sanctions (filed via facsimile). |
| Jun. 30, 1998 | (Petitioner) Response to Respondent`s Request for Sanctions and Request for Telephone Hearing (filed via facsimile). |
| Jun. 30, 1998 | (Petitioner) Notice of Filing Response to Respondent`s Request for Sanctions and Request for Telephone Hearing (filed via facsimile). |
| Jun. 04, 1998 | (Respondent) Memorandum of Law and Argument in Support of Respondent`s Request for Sanctions (filed via facsimile). |
| Jun. 02, 1998 | Respondent`s Request for Sanctions (filed via facsimile). |
| May 28, 1998 | Petitioner`s Response to Order Denying Motion to Compel filed. |
| May 11, 1998 | Order Denying Motion to Compel Answers to Petitioner`s Interrogatories sent out. |
| Apr. 28, 1998 | Respondent`s Response to Petitioner`s Motion to Compel Discovery (filed via facsimile). |
| Apr. 22, 1998 | (Petitioner) Motion to Compel Answers to Petitioner`s Interrogatories (filed via facsimile). |
| Apr. 21, 1998 | Order Granting Motion to Reset Hearing Dates and Third Amended Notice of Hearing sent out. (hearing set for Sept. 9-10, 1998; 9:00am; Naples) |
| Apr. 17, 1998 | Respondent`s Motion to Compel Discovery filed. |
| Apr. 15, 1998 | Respondent`s Amended Answers to Request for Admissions (filed via facsimile). |
| Apr. 10, 1998 | Petitioner`s Motion to Reset Hearing Dates filed. |
| Mar. 17, 1998 | (Petitioner) Notice of Serving Response to Respondent`s Request for Admissions, Production, and Interrogatories filed. |
| Mar. 10, 1998 | Notice of Serving Respondent`s Signed Response to Interrogatories (filed via facsimile). |
| Mar. 05, 1998 | Order Granting Continuance and Second Amended Notice of Hearing sent out. (hearing reset for June 9-10, 1998; 9:00am; Naples) |
| Mar. 03, 1998 | Notice of Serving Respondent`s Unsigned Response to Petitioner`s First Set of Interrogatories (filed via facsimile). |
| Mar. 03, 1998 | Respondent`s Answers to Request for Admissions; Respondent`s Response to Petitioner`s Request for Production (filed via facsimile). |
| Mar. 02, 1998 | Petitioner`s Motion to Reset Hearing Dates filed. |
| Feb. 18, 1998 | (Respondent) Notice of Serving Interrogatories; Respondent`s First Request for Admissions (filed via facsimile). |
| Feb. 17, 1998 | (Respondent) Notice of Filing; (Respondent) Request to Produce; (Respondent) Motion to Extend Time to File Motions in Opposition to Administrative Complaint (filed via facsimile). |
| Feb. 13, 1998 | Amended Notice of Hearing sent out. (hearing set for June 2-3, 1998; 9:00am; Naples) |
| Feb. 10, 1998 | (Respondent) Motion for Continuance (filed via facsimile). |
| Feb. 05, 1998 | Letter to T. Maguire from K. Stutter Re: Submitting oral or written communication filed. |
| Feb. 04, 1998 | Notice of Serving Petitioner`s First Set of Request for Admissions, Interrogatories, and Request for Production of Documents filed. |
| Feb. 03, 1998 | Notice of Hearing sent out. (hearing set for April 15-16, 1998; 9:00am; Naples) |
| Jan. 29, 1998 | Joint Response to Initial Order filed. |
| Jan. 22, 1998 | Initial Order issued. |
| Jan. 15, 1998 | Notice Of Appearance; Request For Formal Hearing; Agency Referral letter; Administrative Complaint filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 30, 1999 | Agency Final Order | |
| Apr. 02, 1999 | Recommended Order | Thirty-day suspension, two years` probation, ten hours` continuing medical education, and $10,000 fine for departing from applicable standard of care, failing to make timely referral for rectal/bowel problems, and representing fraudulent medical records. |
| Dec. 21, 1998 | DOAH Final Order |
BOARD OF MEDICINE vs WALLINGFORD H. K. BOWLIN, 98-000330 (1998)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs JAVIER PEREZ-FERNANDEZ, M.D., 98-000330 (1998)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs PETER CHOY, M.D., 98-000330 (1998)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs ROBERT LOUIS DRAPKIN, M.D., 98-000330 (1998)
