vs. )
Respondent. )
Case No. 00-2545
Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Jeff B. Clark, held a formal hearing in this case on November 29 and 30, 2000, in Clearwater, Florida.
For Petitioner: John E. Terrel, Esquire
George Thomas Bowen, II, Esquire Law Office of Donald Weidner, P.A. 11265 Alumni Way, Suite 201
Whether disciplinary action should be taken against the license to practice medicine of Respondent,
Carl Fromhagen, M.D., based on allegations that he violated Subsections 458.331(l)(k),(m) and (t), Florida Statutes, as alleged in the Administrative Complaint in this proceeding.
By Administrative Complaint dated April 30, 1999, Petitioner, Department of Health, Board of Medicine, alleged that Respondent, Carl Fromhagen, M.D., a licensed physician, violated provisions of Chapter 458, Florida Statutes, governing medical practice in Florida. Petitioner alleged that:
Petitioner forwarded the Administrative Complaint to the Division of Administrative Hearings on June 21, 2000. A Notice of Hearing was entered on July 20, 2000, setting the case for hearing on November 29 and 30, 2000, in Clearwater, Florida.
At the final hearing, Petitioner presented five witnesses including Respondent and Elizabeth Nelson, M.D., who was qualified as an expert witness. Petitioner offered ten exhibits. Petitioner's Exhibits Nos. 1-4, 6, 9 and 10 were admitted. Petitioner's Exhibits Nos. 7 and 8 were prior depositions of Respondent. Respondent presented Respondent and James Von Thron, M.D., who were admitted as expert witnesses, and offered four exhibits which were admitted into evidence.
At the conclusion of the hearing, the Administrative Law Judge advised each party of their option of providing proposed recommended orders and memoranda of law. The attorneys for the parties requested and received thirty (30) days from the filing of the transcript to file proposed recommended orders and memoranda of law. The court reporter filed the Transcript on
January 8, 2001. Both parties filed Proposed Recommended
Orders.
Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made:
Petitioner is the state agency charged with regulating the practice of medicine in the State of Florida pursuant to Section 20.43, Florida Statutes, and Chapters 455 and 458, Florida Statutes.
At all times material to this proceeding, Respondent was a licensed physician in the State of Florida, having been licensed in 1956 and issued License No. ME 0007027.
Respondent is board-certified in Obstetrics and Gynecology (1967). He is 74 years old and now has an office- based practice treating only gynecological patients.
Patient K. B., a 46-year-old female, first presented to Respondent on September 6, 1990, with menopausal complaints.
Her patient's history reflects that she reported a family history of breast cancer.
On February 12, 1992, Patient K. B. presented to Respondent with complaints of a mass in her left breast. Respondent palpated a mass in K. B.'s left breast and, although he did not note the size of the mass in his office records, the records contain a diagram showing the location of the mass.
Petitioner testified that it was his practice that when he discovered a mass of less than 2.5 centimeters, he did not describe the size because its too hard to identify the exact dimensions smaller than an inch.
Respondent ordered a mammogram for Patient K. B. which was performed on February 19, 1992, and was interpreted as revealing no evident neoplasm (cancer).
Respondent saw Patient K. B. in his office on the following dates (after the mammogram): March 30, 1992;
May 21, 1992; August 31, 1992; April 19, 1993; April 27, 1993;
May 4, 1993; May 11, 1993; May 18, 1993; September 21, 1993; and November 16, 1993. In addition, Patient K. B. had telephone contact with Respondent's office staff to have prescriptions refilled and was mailed examination reminder notes.
Patient K. B. testified that she and Dr. Fromhagen discussed the breast mass "every checkup, every time I was there." She inquired about a follow-up mammogram and
Dr. Fromhagen indicated that she could wait two years. He did not mention a biopsy, excision, or referral to another physician at anytime.
Patient K. B. and Respondent agree that Respondent examined and palpated the breast mass during her physical examinations which took place approximately every six months.
During civil litigation that preceded the instant administrative hearing, it became apparent that there were two different sets of office records for Patient K. B. Patient
K. B. testified that during the civil action she brought against Respondent in 1996, Respondent had produced medical records, purported to be hers that did not accurately reflect her treatment. She recalled that upon comparing the medical records Respondent had produced in the civil action with the records she had obtained from Respondent's office in December 1994, she discovered that Respondent had "augmented" her records, which she reported to her attorney.
In May 1994, the offices of Dr. Paul Straub, who became Patient K. B.'s new treating physician as a result of a change in her group health insurance, requested her medical records from Dr. Fromhagen's office.
Dr. Fromhagen testified in the instant hearing that "at the time . . . I compared the chart [Patient K. B.'s records] with . . . 'day sheets' and because I felt the records did not reveal everything that Dr. Straub should be aware of, I rewrote certain portions of them to reflect things that were on the day sheets that I hadn't already written down and then [in May 1994] sent the records to Dr. Straub."
Patient K. B. testified that, "the night before my surgery" [December 1994] she received a call from
Dr. Fromhagen's office asking if they could send her records to Dr. Straub. In the course of that discussion, Patient K. B. advised that she had been diagnosed with breast cancer and was scheduled for surgery.
That same evening, shortly after the phone discussion with Dr. Fromhagen's office, Patient K. B. went to
Dr. Fromhagen's office and obtained a copy of her medical records. These records did not contain the "rewritten portions" Dr. Fromhagen reported as having been done in May 1994.
Dr. Fromhagen testified that he started keeping "day sheets" when he first started practicing in 1960. The "day sheets" (Respondent's Exhibit 2) are essentially a daily calendar organized by time which lists the name of patients to be seen that day and then notes such as "ovarin cyst," "vaginitis," "preg?"
These "day sheets" were not mentioned in either of Dr. Fromhagen's depositions taken in 1996 in the civil action.
In Petitioner's Exhibit 10, a July 3, 1997, letter to
M. S. Sutton, an Agency for Health Care Administration investigator, Dr. Fromhagen attempts to explain his record- keeping practice for patients, Dr. Fromhagen acknowledges rewriting his charts and states, "I would carefully review the chart and address any portions that I felt were not completely explanatory, or that I thought need information to assist the
subsequent physician. I now understand that I should have noted the changes as late entries and dated them the date written."
No mention was made of "day sheets" in this letter.
Dr. Fromhagen testified during a deposition taken in the civil action that his standard practice was "to make entries in the chart right away," that he never put it off, and that he had not done anything different in Patient K. B.'s case.
Dr. Fromhagen acknowledged that during a deposition taken in the civil action he had incorrectly testified that he had not made changes in Patient K. B.'s medical record.
The following is a comparison of the significant difference between Petitioner's Exhibit 9, Patient K. B.'s original medical record, and Respondent's Exhibit 3, Patient
K. B.'s "augmented" medical record. Please note: Patient K. B. became Dr. Fromhagen's patient on September 6, 1990. No changes were made in the "Gynecologic History and Physical Examination" (Patient K. B.'s medical record) on any entry until March 30, 1992. Changes are highlighted.
Date: March 30, 1992
Original record: "Mammogram was neg. palpation indicates mass much smaller. Will follow"
Augmented record: "Mammogram reported as no evidence of neoplasm. Palpation indicates to me that mass is smaller. Discussed removing it"
Date: May 21, 1992
Original record: "Dysuria General Malaise. Pelvic unremarkable. Urine - pus. Rx Macrodantin"
Augmented record: "Dysuria. Mailaise. Pelvic unremarkable. Urine - pus. Rx Macrodantin"
Date: August 31, 1992
Original record: "Introital lesions. Pelvic area feels congestion and cramping sensation. Pelvic- ulcers-blisters at introitus but very small.
Herpes? Rx Zoirax"
Augmented record: "Introital lesions. Lower abd cramping. Pelvic - herpetic ulcers at introitus. Rx Ziorax"
Date: April 19, 1993
Original record: "Last mammogram revealed no concern.
Dysuria. Frequent UTI. Had a cysto before. Rhinorrhea. Vulvar irritation. GenPE. Breasts unchanged. Pelvic - fungus. Rx She has Monistat. Urine - pus Macrodantin. RV Cysto"
Augmented record: "Last mammogram revealed no neoplasm but mass still present and I suggested another x-ray now or removal of mass if she wishes. Dysuria. Has frequent UTIs. Had a Cysto before. Rhinorrhea. Vulvar irritation. Gen PE - nasal turbinates swollen. Breasts unchanged. Pelvic-fungus. Rx she has Monistat for fungus. Macrodantin RV Cysto"
Date: April 27, 1993
Original record: "Cysto: stricutre. Proximal urethra & trizone inflamed and granules. Bladder capacity - first desire to void at 200 c.c. RV dilations"
Augmented record: "Cysto-urethral stricture.
Proximal urethra & trizone inflamed & granular. Urethra L46. Bladder capacity - first desire to void at 200 cc. Rx RV dilations"
Date: May 18, 1993
Original record: "No urinary complaints now. Sounded #32 irrigated AgNO3. This concludes dilations"
Augmented record: "No urinary complaints now.
Sounded #32, irrigated AgNO3. This concludes diations. She has not gotten this years mammogram yet"
Date: October 11, 1993
Original record: "Rem sent" [entry made by office staff]"
Augmented record: "Reminder note sent - Exam due." [entry made by office staff]"
Date: November 16, 1993
Original record: "On Premarin.625. Starting to awaken in the middle of the night again Nervous. No flashes. Bladder OK. New glasses. Trouble adjusting to fidders bifocals. GenPE, breasts & pelvic unchanged. Pap change to Premarin 1.25"
Augmented record: "On Premarian.625. Starting to awaken in the middle of the night again. Very nervous. No flashes. Bladder OK. Finds it hard to adjust to her new bifocals. Gen PE unchanged. Breasts - mass still present. Again suggested she get a yearly mammogram or have mass excised. She has not arranged for a mammogram as she said she would. Pelvic unchanged. Rx Increased dose of Premarian to 1.25"
The entries made in patient K. B.'s "augmented" record (Respondent's Exhibit 3) were not noted to be "late entries" nor were they dated. Both expert witness opined that this fell below the standard of care.
Most of the "late entries" made by Respondent in the "augmented" record (Respondent's Exhibit 3) are a self-serving
attempt by Respondent to create the impression that he had encouraged Patient K. B. to have follow-up mammograms or to have the breast mass excised. If the "augmented" record (Respondent's Exhibit 3) was a true reflection of the treatment rendered Patient K. B. by Respondent, his treatment could possibly have met the "standard of care." I find that the "augmented" record does not reflect the treatment Patient K. B. received, but that the original record (Petitioner's Exhibit 9) is the more credible document and accurately reflects Respondent's treatment of Patient K. B.
Dr. Nelson, who testified as an expert witness, testified that Dr. Fromhagen fell below the standard of care in that (relying on both the original record and "augmented" record) between March 30, 1992, and April 13, 1993, he did not "deal with the breast mass, did not report discussion of treatment options with the patient, did not order a follow-up mammogram within 12 months."
Again relying on both records, Dr. Nelson testified that Dr. Fromhagen fell below the standard of care for maintaining medical records when he failed to record his examination of Patient K. B.'s breasts and palpation of the mass which he reported as having been done "every visit she made."
Both Dr. Von Thron, who also testified as an expert witness, and Dr. Nelson agreed that the standard of care
requires that for any revision of medical records, if a change is made, a line is made through the original so it can be read and then the correction is made and the change is dated and initialed. If an additional statement is entered into the medical record, it should be dated and initialed.
Dr. Fromhagen did not date or initial the changes or additions to Patient K. B.'s medical record when he created the "augmented" record. Both expert witnesses testified that this fell below the standard of care for medical record-keeping.
Dr. Von Thron, referring to the original record, opined that Dr. Fromhagen did not comply with the standard of care for essentially the same reasons as expressed by
Dr. Nelson. He opined that the "augmented" record indicates that Dr. Fromhagen complied with the standard of care.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this cause pursuant to Subsection 120.57(1) and Section 455.225, Florida Statutes.
License revocations and discipline procedures are penal in nature. Petitioner must demonstrate the truthfulness of the allegations in the Administrative Complaint dated
April 30, 1999, by clear and convincing evidence. Department of
Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932
(Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
The "clear and convincing" standard requires: [T]hat 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.
Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
Petitioner must set forth the charges against Respondent with specificity, carrying the burden of proving each charge, and in the final order, set forth explicit findings of fact and conclusions of law addressing each specific charge. Davis v. Department of Professional Regulation, 457 So. 2d 1074 (Fla. 1st DCA 1984); Lewis v. Department of Professional Regulation, 410 So. 2d 593 (Fla. 2d DCA 1982).
Where Petitioner charges negligent violations of general standards of professional conduct, as in this case, Petitioner must present expert testimony that proves the required professional conduct, as well as the deviation therefrom. Purvis v. Department of Professional Regulation, 461 So. 2d 134 (Fla. 1st DCA 1984).
Petitioner has charged Respondent with violating the following relevant provisions of Subsection 458.331(1)(t), Florida Statutes:
[T]he 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.
Petitioner has proved by clear and convincing evidence that Respondent failed 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. Both expert witnesses testified that Respondent's record-keeping fell below the standard of care. Both agreed that the course of treatment from March 30, 1992, to April 19, 1993, fell below the standard of care.
Dr. Nelson, whose expert testimony I find to be more credible, opined that Respondent's failure to order a follow-up mammogram and to explore treatment options fell below the standard of care.
Petitioner has charged Respondent with violating Subsection 458.331(1)(k), Florida Statutes,
Making deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick or scheme in the practice of medicine.
Petitioner has proved by clear and convincing evidence that Respondent made deceptive, untrue, or fraudulent representations in or related to the practice of medicine. In 1994, after Patient K. B. left Respondent's care, Respondent "augmented" the medical record he had maintained adding largely self-serving information which attempted to reflect treatment which would have been undertaken by a reasonably prudent similar physician. During the civil action, Respondent had initially denied changing Patient K. B.'s record, but later acknowledged changing the record. Respondent failed to indicate the changes he made to the record were, in fact, changes as required by Rule 64B8-9.003(4), Florida Administrative Code, and standard medical procedure.
Rule 64B8-9.003(4), Florida Administrative Code, states:
Standards for Adequacy of Medical Records.
* * *
(4) All entries made into the medical records shall be accurately dated and timed. Late entries are permitted, but must be clearly and accurately noted as late entries and dated and timed accurately when they are entered into the record. However, office records do not need to be timed, just dated.
The Administrative Complaint alleges that Respondent violated Subsection 458.331(1)(m), Florida Statutes, and publishes the text of the statute as amended in 1997. The
questioned medical record-keeping occurred in 1993. Subsection 458.331(1)(m), Florida Statutes (1993) reads:
(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.
The version of a statute in effect at the time grounds for the disciplinary action arise controls. Childers v. Department of Environmental Protection, 696 So. 2d 962 (Fla. 1st
DCA 1997); Willner v. Department of Professional Regulation, Board of Medicine, 563 So. 2d 805 (Fla. 1st DCA 1990); Department of Transportation v. James, 403 So. 2d 1066 (Fla. 4th DCA 1981).
The Administrative Complaint alleges that "Respondent's medical records do not justify this course of treatment for Patient K. B." In both the 1993 and 1997 revision of Subsection 458.331(1)(m), Florida Statutes, the following language appears: "Failing to keep . . . medical records . . . justifying (that justify) the course of treatment of the patient."
A long existing rule of statutory construction is that "mere statutory change of language does not necessarily indicate an intent to change the law, for the intent may be to clarify
what is doubtful and to safeguard against misapprehension as to the existing law." U.S. Fire Insurance v. Roberts, 541 So. 2d 1297 (Fla. 1st DCA 1989); Keyes Investors Series 20, Ltd. v.
Department of State, 487 So. 2d 59 (Fla. 1st DCA 1986); Ocala Breeders Sales Co. v. Division of Pari-Mutuel Wagering,
Department of Business Regulation, 464 So. 2d 1272 (Fla. 1st DCA 1985).
The amendatory language of the 1997 revision of Subsection 458.331(1)(m), Florida Statutes, is intended to clarify the statute in effect at the time the questioned patient record-keeping took place. Notwithstanding the use of the amendatory language in the Administrative Complaint, Respondent is on notice of the subsection of the statute he was alleged to have violated.
Petitioner has proved by clear and convincing evidence that Respondent "failed to keep medical records justifying the course of treatment of the patient" in that Respondent failed to record in either the original or "augmented" medical record the fact that, as Respondent himself testified, he "palpated it [the breast mass] every visit she made. I did not identify it in the chart, "
Both the courts and the Legislature have recognized that "the record-keeping aspect of a physician's practice is of fundamental importance." Subsection 458.331(1)(m), Florida
Statutes, sets forth legislatively mandated minimal standards of record-keeping by physicians. Rizzo v. Department of Professional Regulation, Board of Medical Examiners, 519 So. 2d 1019 (Fla. 4th DCA 1988). Both expert witnesses opined that Respondent's record-keeping failed to meet minimal standards.
Respondent's own testimony confirms this conclusion.
Subsection 458.331(2), Florida Statutes (1993), provides that the Board of Medicine may impose one or more of the following applicable penalties for violation of each subsection of Section 458.331(1), Florida Statutes (1993):
Revocation or suspension of a license.
Restriction of practice.
Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.
Issuance of a reprimand.
Placement of the physician on probation for a period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the physician to submit to treatment, to attend continuing education courses, to submit to reexamination, or to work under the supervision of another physician.
Issuance of a letter of concern.
Corrective action.
Refund of fees billed to and collected from the patient.
In addressing aggravating and mitigating circumstances, Respondent's apparent attempt to alter Patient
K. B.'s medical record to establish an acceptable standard of care is abhorrent and undermines the trust upon which the
physician/patient relationship is founded. Initially denying this activity under oath only compounds the inappropriate conduct.
In mitigation, Respondent has never been disciplined in a 44-year career as a practicing physician. No evidence was offered to suggest that his departure from the applicable standard of care was as a result of failure to diagnose breast cancer. It is purely speculative to assume that a second mammogram or a biopsy twelve months after the first would have detected cancer. No evidence was offered to suggest that the "augmented" medical record entries were motivated by any reason other than fear, embarrassment, and shame.
Recommended that the Board of Medicine enter a final order finding Respondent guilty of violating Subsections 458.331(1)(k), (m), and (t), Florida Statutes (1993), and imposing the following:
JEFF B. CLARK
George Thomas Bowen, II, Esquire Law Offices of Donald Weidner, P.A. 11265 Alumni Way, Suite 201
John E. Terrel, Esquire
William W. Large, General Counsel Department of Health
Theodore M. Henderson, Agency Clerk Department of Health
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.
