STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, }

}

)

Petitioner, )

)

vs. ) Case No. 98-2036

)

ASHOK M. PATEL, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 19-21, 1998, in Tampa, Florida, before Richard A. Hixson, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kristina Sutter, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Post Office Box 14229 Tallahassee, Florida 32317

For Respondent: A. S. Weekley, Jr., M.D., Esquire Holland & Knight

520 Vonderburg Drive, Suite 3005 Brandon, Florida 33511

STATEMENT OF THE ISSUES

The issues for determination in this case are whether Respondent's license to practice medicine should be revoked or otherwise disciplined for the reasons set forth in the Administrative Complaint, specifically for: 1) Respondent's

failure to meet the acceptable standard of care for psychiatry in not immediately admitting patient J.R. to an intensive in-patient care facility; 2) Respondent's failure to justify his failure to admit patient J.R. to an intensive in-patient care facility; and

3) Respondent's failure to maintain records which state why patient J.R. was not admitted to an intensive in-patient care facility.

PRELIMINARY STATEMENT

This case arises from the suicide of J.R., a patient of Respondent, Ashok M. Patel, M.D., a practicing psychiatrist whom

J.R. saw for one appointment on July 31, 1996.

On February 3, 1998, Petitioner, Department of Health, filed a three-count Administrative Complaint alleging that Respondent, Ashok M. Patel, M.D., committed the following violations: 1) a violation of Section 458.331(1)(t), Florida Statutes, by failing 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 through Respondent’s failure to refer Patient J.R. for intensive in-patient care immediately; 2) a violation of Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records justifying the course of treatment of

1. as an out-patient; and 3) violation of Section 458.331(1)(x), Florida Statutes, by violating a rule of the Board

   of Medicine, specifically Rule 64B8-9.003(2), Florida Administrative Code, failure to maintain records which state why Patient J.R. was not admitted to intensive in-patient treatment.

   Respondent contested the allegations of the Administrative Complaint, and filed a timely request for formal hearing. The matter was referred to the Division of Administrative Hearings on May 1, 1998. Pursuant to the Prehearing Order, the parties filed a prehearing stipulation on August 13, 1998. Formal hearing was conducted on August 19-21, 1998. At the conclusion of the formal hearing the record was left open pending resolution of Respondent’s submission of additional expert testimony. On September 28, 1998, Respondent submitted the videotaped deposition of Daniel Sprehe, M.D., without objection.

   At hearing, Petitioner presented the testimony of five witnesses: Rosalie Mackay, Medical Records Director of Psychiatric Behavioral Systems; John Llauget, licensed mental health counselor; Mrs. P.R., widow of Patient J.R.; Maurice Lelii, licensed mental health counselor; and Martin Rosenthal, M.D., qualified as an expert witness in the field of psychiatry. Petitioner also presented 15 exhibits which were received in evidence.

   At hearing Respondent presented the testimony of 2 witnesses: Arturo G. Gonzalez, M.D., qualified as an expert witness in the field of psychiatry; and Respondent, Ashok M. Patel, M.D. Respondent presented 15 exhibits, 10 of which were received in evidence. Respondent’s Exhibit 1 was not offered into evidence, Petitioner’s objection to Respondent’s Exhibit 4

   was sustained, and ruling on Petitioner’s objections to Respondent’s Exhibits 8, 10, and 12 was reserved. Having reviewed the submission of the parties, Petitioner’s objections are overruled and Respondent’s Exhibits 8 and 10 are received over objection. Petitioner's objection to composite Exhibit 12 as irrelevant is sustained.

   On September 21, 1998, a transcript of the hearing was filed. Pursuant to Respondent’s Motion for Enlargement of Time filed September 28, 1998, the parties were granted without objection additional time in which to file Proposed Recommended Orders. On November 16, 1998, the parties filed Proposed Recommended Orders. Additionally, Respondent filed a Motion to Exclude Irrelevant Material. Having reviewed the motion, and finding that the material meets the evidentiary standards of Section 120.58, Florida Statutes, Respondent’s motion is denied.

   FINDINGS OF FACT

   
   

   1. Petitioner, Department of Health, is the state agency vested with the statutory authority to enforce the disciplinary standards for the practice of medicine under Chapters 455 and 458, Florida Statutes.

   2. Respondent, Ashok M. Patel, M.D., is and at all material times was, a physician licensed to practice medicine in Florida, having been issued license number ME 0066214. Respondent practices psychiatry in Largo, Florida. Respondent is board

      certified in psychiatry.

      
      

   3. On July 31, 1996, Patient J.R. was referred for an appointment to Respondent by Professional Psychological Services (hereinafter PPS), a mental health care provider with which Respondent was contractually affiliated. At this time J.R. was a 44-year-old white male who was employed as a paramedic, and later as a firefighter for the City of Clearwater. J.R. had worked in this capacity for over 19 years. J.R. was happily married to

      P.R. for more than 11 years. The couple had no children.

      
      

   4. In the weeks preceding his appointment with Respondent,

      
      

      J.R. was experiencing severe depression. The primary basis of J.R.'s depression was chronic health problems. J.R. had a history of back problems which began in 1980. He had back surgery in 1989, and suffered from psoriatic arthritis in his back which adversely affected his ability to function effectively as a paramedic and later as a firefighter. In July of 1996, J.R. had the job of driver of the firetruck.

   5. In July of 1996, J.R. was under the care of his primary physician Dr. Mark Smitherman, as well as a rheumatolgist,

      Dr. Adam Rosen, who prescribed medicine for J.R.'s chronic pain.

      
      

   6. On July 22, 1996, during an appointment with

      
      

      Dr. Smitherman, J.R. expressed his feelings of depression.

      
      

      Dr. Smitherman suggested that J.R. contact PPS, the psychological services provider of J.R.’s employment insurance plan. An

      appointment with PPS was thereafter scheduled for July 31, 1996.

      
      

      J.R. also had previously expressed his feelings of depression to Dr. Rosen who had prescribed Serzone, an anti-depressant for J.R.

   7. J.R. went to work at the firehouse on Monday, July 29, 1996. At some time during the evening while the other firefighters were asleep, J.R. removed a defibrillator from the firetruck, went to a private room, and used the defibrillator on himself in an unsuccessful attempt to commit suicide.

   8. The following morning of Tuesday, July 30, 1996, J.R. returned home at approximately 8:00 a.m., and telephoned his wife, P.R., who was already at work. J.R. informed his wife of his suicide attempt. P.R. immediately went home and called PPS, explained the circumstances, and requested an earlier appointment. Arrangements were made with PPS to reschedule J.R. from his existing appointment on Wednesday, July 31, 1996, to an appointment July 30, 1996, at 7:00 p.m. Later that day, the appointment was moved up to 5:00 p.m.

   9. When J.R. and his wife arrived at PPS they met with Betti Pate, a licensed mental health counselor employed by PPS. During the course of her evaluation, Betti Pate noted that J.R. was severely depressed with a suicide attempt within the previous

      24 hours. Ms. Pate in her care plan for J.R. identified three problems, depression, fear of being left alone, and suicidal ideation. Under intervention, she noted, "prevent suicide, daily

      observation." Betti Pate’s note to her supervisor stated that

      
      

      J.R. was fearful, very depressed and negative. She also noted that J.R. was "afraid he’ll try again if alone."

   10. After Betti Pate’s evaluation on July 30, 1996, her supervisors at PPS recommended that J.R. enter a Partial Hospitalization Program (PHP) at Charter Behavioral Health System of Medfield Hospital (Charter). The PHP at Charter was a mental health counseling program which was conducted during the day at the hospital. The primary focus of the Charter PHP was mental health therapy provided in group settings with licensed mental health counselors. The care plan for J.R. was to provide partial hospitalization at Charter during the day while his wife was at work. J.R. would then return home to his wife in the evening. Under this arrangement J.R. would not be alone for extended periods of time.

   11. Admission to the PHP at Charter required the concurrence of an admitting psychiatrist. Because the other psychiatrists employed by PPS were unavailable, an appointment was made for J.R. to be evaluated by Respondent who, although in private practice, had an affiliate agreement with PPS to render mental health services to referred patients. PPS made an appointment for J.R. to see Respondent on Wednesday, July 31, 1996, at 4:00 p.m. It was common and usual practice for PPS to refer patients to Respondent for evaluation prior to admission to

       PHP, as well as for evaluation of a patient’s medications.

       
       

   12. J.R. went alone to his appointment with Respondent. Prior to seeing Respondent, J.R. completed a patient information document. J.R. described his reason for visit as "mental health & coping problem." He circled the following problems which pertained to him: nervousness, anxiety, insomnia, stress, headaches, overwhelmed, obsessive thoughts, compulsive behavior, depression, loneliness, fears, suicidal thoughts, concentration, appetite changes, helpless/hopeless, low energy, sexual problems, impulsive behavior, medical problems, and physical pain. J.R. listed the medications he was taking as Serzone 150 mg (10 day), Lortab 7.5/500, Robaxin 750 mg. J.R. indicated that he had not received prior psychiatric treatment.

   13. After completion of the patient information document,

       
       

       J.R. was seen by Respondent. Respondent observed that J.R. was casually dressed and not dishelveled, was articulate, made eye contact, was appropriately aware of time and place, and able to communicate effectively. Respondent asked J.R. the nature of the problem that had brought J.R. to him. Respondent then conducted a medical history, a family history, and a history of the problems leading to the visit to Respondent. In the course of his evaluation of J.R., Respondent completed a clinical assessment form which included a DSMIV diagnosis.

   14. According to Respondent’s records J.R. stated as "chief

       complaint" that "I was referred by PPS." In history of present illness, Respondent notes that: "Patient is 44 year-old white male came in complaining of chronic back pain, decreased sleep agitation, irritability." Patient says he is feeling depressed, says he tried to kill himself using defibrillator on Monday, but says it did not work. Patient had suicidal thoughts for 1-2 weeks, but feels guilty about doing it. Says it was stupid to hurt himself. Weight loss of 14 pounds in two and one-half months, decreased appetite. No SI(suicial ideation)/ No HI(homicidal ideation)/ No AH(auditory hallucinations)/ No VH(visual hallucinations)/ No PI(paranoid ideation) at present.

   15. During the course of Respondent’s evaluation, J.R. related that he had been seen at PPS on July 30, 1996, that he had an appointment to see Betti Pate the following day, and that arrangements were being made by PPS for him to begin PHP at Charter; however, Respondent did not have J.R.’s PPS evaluation nor Betti Pate’s notes at the time of J.R.’s office visit. J.R. also related that he had a supportive wife, although Respondent did not have any personal contact with Mrs. J.R. at this time.

   16. Respondent’s evaluation of J.R. lasted over one hour. In his diagnosis Respondent determined that J.R. had major severe depression, and that J.R. presented a moderate suicide risk. In his recommendation/plan for J.R. Respondent’s notes reflect the following: "Increased Serzone 100mg two Bid; continue out-patient counseling; start Xanax 0.25 mg. 1/2-1 tid prn.; follow up in 2 weeks; and, made aware of 24 hours availability." Respondent also advised rest for 2 weeks. At this time Respondent did not know when J.R. would begin PHP at Charter.

   17. After leaving Respondent’s office J.R. went home and expressed to his wife some difficulty in understanding Respondent who is a native of India. The next day Thursday, August 1, 1996, Mrs. J.R. contacted PPS to inquire about J.R. seeing a different psychiatrist. Neither J.R. nor Mrs. J.R. contacted Respondent, and PPS did not refer J.R. to another psychiatrist.

   18. Because of J.R.’s use of the defibrillator, PPS

       requested medical clearance from J.R.’s primary care physician Dr. Smitherman prior to admission to PHP at Charter. On Thursday, August 1, 1996, J.R. telephoned Dr. Smitherman and received medical clearance to begin PHP at Charter.

   19. J.R. was scheduled to begin PHP at Charter on Monday August 5, 1996. J.R. received no mental health therapy or counseling from the time he left Respondent’s office on Wednesday, July 31, 1996, until Monday, August 5, 1996, when he arrived at Charter. J.R. spent some of this time doing routine shopping, errands and going to the beach where he regularly exercised by swimming. J.R. and his wife also discussed future plans together.

   20. On Monday, August 5, 1996, J.R. was admitted to PHP at Charter. At this time Charter telephoned Respondent for admission instructions for J.R., which Respondent as the attending physician gave for J.R. During the course of the day,

       J.R. attended group therapy sessions at Charter. The Charter records indicate that J.R. presented a flat appearance, and was not actively engaged in the therapy sessions.

   21. The following day, Tuesday August 6, 1996, J.R. had a previously scheduled appointment with his rheumotolgist,

       Dr. Rosen. Because of this previously scheduled appointment J.R. was allowed to miss his therapy sessions at Charter on August 6, 1996, with the understanding that he would return and continue

       his therapy at Charter on Wednesday August 7, 1996.

       
       

   22. On Tuesday, August 6, 1996, J.R. went to his appointment with Dr. Rosen. At some time after leaving

       Dr. Rosen’s office J.R. returned home and committed suicide by hanging himself in the garage where his wife found him later that day.

   23. Respondent had no contact with J.R. subsequent to July 31, 1996.

   24. Three expert witnesses in the field of psychiatry presented testimony in this matter: Dr. Martin Rosenthal;

       Dr. Arturo Gonzalez; and, Dr. Daniel Sprehe. All three expert witnesses concur that Respondent’s diagnosis of J.R. was correct and met the appropriate standard of care. Moreover, all three expert witnesses agree that Respondent’s prescribed medications for J.R. were correct and met the appropriate standard of care. While Drs. Gonzalez and Sprehe opined that Respondent’s treatment plan for J.R. was appropriate, Dr. Rosenthal testified that Respondent’s treatment of J.R. in "certain limited ways" did not meet the standard of care. Specifically, Dr. Rosenthal opined that even though J.R. was a moderate suicide risk, he would have hospitalized J.R.

   25. The medical literature submitted as part of the record in this case is consistent in stating that suicide in an individual patient is not a predictable event. The factors that

       are considered by psychiatrists in evaluating the risk of suicide are subjective to the individual patient. In order to be of imminent risk, a patient must have suicidal intent, lethal means, and opportunity. All the experts in this case agree that Respondent made the proper diagnosis of J.R., which included a finding that when Respondent saw J.R., the patient had no suicidal ideation. At the time J.R. was seen by Respondent the evidence shows not only did J.R. have no present suicidal ideation, but he also expressed regret over having made a suicide attempt, and specifically stated to Respondent that he felt stupid about trying to hurt himself. The expert evidence is supported by the medical literature, that under such circumstances the appropriate standard of care does not require immediate hospitalization.

       CONCLUSIONS OF LAW

       
       

   26. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, pursuant to Chapter 120, Florida Statutes.

   27. Pursuant to Chapter 458, Florida Statutes, the Department of Health is empowered to act against the medical license of a psychiatrist.

   28. Disciplinary licensing proceedings are penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So.

       2d 487 (Fla. 1973). Therefore, the Petitioner must prove the

       alleged violations by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1st DCA 19871); Dept. of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).

   29. Clear and convincing evidence was described in Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983):

       [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 evidence 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 the firm belief of conviction, without hesitancy, as to the truth of the allegations sought to be established.

       Accord, Evans Packing v. Dept. of Agriculture at 116 f.n.5.

   30. Agency action that depends upon finding of facts not supported by competent substantial evidence in the record must be set aside, even if the facts raise a suspicion of wrongdoing, speculation, surmise, and suspicion cannot form the basis of disciplinary action against a professional license. Tenbroeck v. Castor, 640 So. 2d 164, 167 (Fla. 1st DCA 1994).

   31. The allegations in the present Administrative Complaint are narrowly drawn, and specifically charged Respondent with failure to meet the standard of care by not hospitalizing patient

       J.R. on July 31, 1997. The evidence is not clear and convincing that Patient J.R. who was appropriately diagnosed as moderate suicidal should have been hospitalized immediately by Respondent

       on July 31, 1997.

       
       

       Count I

       
       

   32. There is substantial competent evidence that the Respondent provided that degree of care which conforms to the prevailing standard of care as required by Section 458.331(1)(t), and therefore is not in violation.

   33. In this instance, the evidence is not clear and convincing that Dr. Patel violated Section 458.331(t) by "failing to refer patient J.R. for intensive in-patient care immediately." Therefore, Count I should be dismissed.

       
       

       Count II

       
       

   34. There is substantial competent evidence that the Respondent provided that degree of care which conforms to the prevailing standard of care and documented such care as required by Section 458.331(1)(m), and therefore is not in violation.

   35. Because the evidence is not clear and convincing that there was a need for Dr. Patel to immediately refer J.R. for intensive in-patient care, there was no showing that Dr. Patel violated Section 458.331(m) by "failing to justify his failure to refer patient J.R. for intensive in-patient care." Therefore, Count II should be dismissed.

       Count III

       
       

   36. There is substantial competent evidence that the

       Respondent provided that degree of care which conforms to the prevailing standard of care and documented such care as required by Rule 64B8-9.003(2), Florida Administrative Code, and therefore is not in violation of that Rule.

   37. Because the evidence is not clear and convincing that Dr. Patel's medical record of patient J.R. did not meet the requirements of Rule 64B8-9.003(2), Florida Administrative Code, there was no showing that Dr. Patel violated Section 458.331(1)(x), Florida Statutes. Therefore, Count III should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered dismissing the February 3, 1998, Administrative Complaint against the Respondent, Ashok M. Patel, M.D.

DONE AND ENTERED this 30th day of December, 1998, in Tallahassee, Leon County, Florida.

RICHARD A. HIXSON

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 30th day of December, 1998.

COPIES FURNISHED:

Kristina Sutter, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Post Office Box 14229 Tallahassee, Florida 32317

A. S. Weekley, Jr., M.D., Esquire Holland & Knight

520 Vonderburg Drive, Suite 3005 Brandon, Florida 33511

Angela T. Hall, Agency Clerk Department of Health

2020 Capital Circle, Southeast Bin A-02

Tallahassee, Florida 32399-1703

Dr. James Howell, Secretary Department of Health

Bin A00

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701

Pete Peterson, General Counsel Department of Health

2020 Capital Circle, Southeast Bin A-02

Tallahassee, Florida 32399-1703

Tanya Williams, Executive Director Board of Medicine

Department of Health Northwood Centre

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 should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 98-002036

Orders for Case No: 98-002036