STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD ) OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case Nos. 04-3222PL

) 04-4111PL

MARVIN REICH, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Lauderdale, Florida, on December 6 and 7, 2005.

APPEARANCES

For Petitioner: Irving Levine

Department of Health Prosecution Services Unit

4052 Bald Cypress Way--BIN C65 Tallahassee, Florida 32399-3265

For Respondent: Marvin Reich, pro se

1979 West Hillsboro Road Deerfield Beach, Florida 33442

STATEMENT OF THE ISSUES

The issues are whether Respondent is guilty, in his care of each of several patients, of failing to perform a statutory or legal obligation by performing unnecessary diagnostic tests, failing to keep legible medical records justifying the course of

treatment, exercising influence on the patient to exploit the patient for the financial gain of Respondent or a third party, prescribing legend drugs other than in the course of his professional practice, and failing to practice medicine in accordance with the applicable level of care. If Respondent is guilty of any of these violations, an additional issue is what penalty should be imposed.

PRELIMINARY STATEMENT

In DOAH Case No. 04-3222PL, Petitioner alleged, by Amended Administrative Complaint filed August 20, 2004, that Respondent was, at all material times, a licensed physician in Florida, holding license number ME 0051631. The Amended Administrative Complaint alleges that, at all material times, Respondent was a Board-certified ophthalmologist practicing endocrinology. This case involves a single patient, G. H.

The Amended Administrative Complaint alleges that, on August 7, 1997, G. H., a 37-year-old male, presented to the Metabolic Treatment Center, at which Respondent was employed.

G. H. allegedly complained of impotence, irritability, bad breath, fatigue, pale skin, loss of sexual desire, and poor concentration. A physical examination allegedly revealed that

G. H.'s blood pressure was 102/68 and his temperature was 99.1 degrees.

The Amended Administrative Complaint alleges that "a sample of G. H.'s blood was collected" and analyzed for ACTH (adrenocorticotropic hormone, which measures pituitary function in cases of suspected Cushing's disease), insulin (which is done for patients with hypoglycemia or in diagnosing insulinoma), DHEA (an adrenal androgen, which measures suspected masculinization of females), basal growth hormone (which is measured in cases of suspected juvenile growth retardation or acromegaly), somatomedin C (measured to diagnose and manage acromegaly), iron and ferritin (measured to evaluate anemia), and random cortisol (a metabolite of hydrocortisone, which measures nothing of diagnostic value). The Amended Administrative Complaint alleges that all lab findings were in the normal range.

The Amended Administrative Complaint alleges that, on August 7, 1997, G. H. underwent an electrocardiogram and motor and sensory nerve conduction studies. Respondent allegedly interpreted the results of these studies to reveal bilateral ulnar and left bitial motor nerve neuropathy, but did not refer

G. H. to a neurologist.

The Amended Administrative Complaint alleges that, on August 14, 1997, G. H. returned to the Metabolic Treatment Center. Respondent allegedly inappropriately prescribed for

G. H. T3 (triiodothyronine), which is a medication to treat

hypothyroidism, at the rate of 10 mcg twice daily, even though the results of a thyroid function test on August 7, 1997, were within normal limits.

The Amended Administrative Complaint alleges that, on August 16, 1997, Respondent inappropriately prescribed for G. H. Liothyronine, which is a synthetic thyroid hormone to treat hypothyroidism, even though the results of the August 7 thyroid function test were within normal limits.

The Amended Administrative Complaint alleges that, on August 29, 1997, Respondent prescribed for G. H. pro HGH, which is a medication for treating growth hormone deficiencies, even though the August 7 test results were normal and the records documented no deficiency in growth hormone.

The Amended Administrative Complaint alleges that, on September 12, 1997, Respondent inappropriately increased G. H.'s T3 prescription to 15 mcg, twice daily, despite lab findings indicating that his thyroid functions were within normal limits. On the same day, Respondent allegedly prescribed G. H. Liothyronine, despite lab findings indicating that his thyroid functions were within normal limits.

The Amended Administrative Complaint alleges that, on September 26, 1997, Respondent ordered a new array of blood tests for G. H., including Candida precipitins, insulin, chemistry, thyroid functions, and lipids. The Amended

Administrative Complaint alleges that all lab findings were within normal limits. However, Respondent allegedly prescribed for G. H. Cytomel, which is a synthetic thyroid hormone, at the rate of 5 mcg twice daily, even though the lab results on August 7 and September 26 were within normal limits for thyroid functions.

The Amended Administrative Complaint alleges that Respondent ordered inappropriate and excessive tests for G. H. by ordering, on August 7, tests of ACTH, insulin, DHEA, basal growth hormone, somatomedin C, iron, ferritin, and random cortisol; and by ordering, on September 16, additional blood tests, including Candida, precipitins, insulin, chemistry, thyroid functions, and lipids. The tests of these two dates were allegedly not reasonably calculated to assist the diagnosis and treatment of G. H.

The Amended Administrative Complaint alleges that Respondent inappropriately treated G. H. and inappropriately prescribed him medications by prescribing T3, Liothyronine, and Cytomel when G. H.'s thyroid levels were within normal limits and prescribing pro HGH when his hormone levels were normal.

Count I of the Amended Administrative Complaint alleges that, in violation of Section 458.331(1)(t), Florida Statutes, Respondent failed to practice medicine with that level of care, skill, and treatment that is recognized by a reasonably prudent

similar physician as being acceptable under similar conditions and circumstances. Count I alleges that Respondent failed to practice medicine consistent with the applicable standard of care by: 1) ordering excessive and inappropriate testing on September 26, 1997; 2) ordering diagnostic tests on August 7 and September 26, 1997, not reasonably calculated to assist the diagnosis and treatment of G. H.'s condition; 3) inappropriately treating G. H. with T3, Liothyronine, Cytomel, and pro HGH; and

4) failing to refer G. H. to a neurologist, despite interpreting the motor and sensory nerve conduction studies as abnormal.

Count II of the Amended Administrative Complaint alleges that, in violation of Section 458.331(1)(q), Florida Statutes, Respondent prescribed, dispensed, administered, mixed, or otherwise prepared a legend drug other than in the course of his professional practice. Count II alleges that it is legally presumed that prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug inappropriately or in excessive or inappropriate quantities is not in the best interest of the patient and not in the course of the physician's professional practice, without regard to his intent. Count II alleges that Respondent inappropriately treated G. H. with T3, Liothyronine, Cytomel, and pro HGH because of the absence of medical justification for the prescription of these medications.

Count III of the Amended Administrative Complaint alleges that, in violation of Section 458.331(1)(g), Florida Statutes, Respondent failed to perform a statutory or legal obligation placed upon a licensed physician by engaging in unnecessary diagnostic testing on August 7, 1997, and September 26, 1997; by ordering repeat testing when the results were consistently within acceptable limits; and by ordering tests, such as of ACTH, insulin, DHEA, basal growth hormone, somatomedin C, and random cortisol, without clinical justification and when the tests were not reasonably calculated to assist the diagnosis and treatment of G. H., in violation of Section 766.111(1), Florida Statutes.

In DOAH Case No. 04-4111PL, Petitioner alleged, by Administrative Complaint filed October 25, 2004, that Respondent was, at all material times, a licensed physician in Florida, holding license number ME 0051631. The Amended Administrative Complaint alleges that, at all material times, Respondent was a Board-certified ophthalmologist. This case involves 10 patients: C. M., S. A., J. H., B. H.-M., Sandy B. (DOH Case No.

2000-12418), R. B., P. G., C. H., L. L., and Sarah B. (DOH Case

No. 2000-12549). At the final hearing, Petitioner announced that it was dismissing its claims against Respondent concerning

J. H. and Sandy B., so these counts of the Administrative Complaint are omitted from the Preliminary Statement.

The Administrative Complaint alleges that Section 458.331(1)(g), Florida Statutes, authorizes discipline against any licensed physician who fails to perform any statutory or legal obligation placed upon him, and Section 766.111(1), Florida Statutes, prohibits a health care provider from ordering, procuring, providing, or administering unnecessary diagnostic tests, which are tests not reasonably calculated to assist the health care provider in diagnosing and treating a patient's condition.

The Administrative Complaint alleges that Section 458.331(1)(m), Florida Statutes, authorizes discipline against a licensed physician for failing to keep legible medical records that justify the course of treatment of the patient, such as patient histories, examination results, test results, records of drugs prescribed, dispensed and administered, and reports of consultations and hospitalizations.

The Administrative Complaint alleges that Section 458.331(1)(n), Florida Statutes, authorizes discipline against a licensed physician for exercising influence on a patient in such a manner as to exploit the patient for the financial gain of the physician or a third party, including the promoting or selling of goods and services.

The Administrative Complaint alleges that Section 458.331(1)(q), Florida Statutes, authorizes discipline against a

licensed physician for prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug other than in the course of the physician's professional practice. The Administrative Complaint alleges that it is presumed that prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug inappropriately or in excessive or inappropriate quantities is not in the best interest of the patient and not in the course of the physician's professional practice, without regard to his intent.

The Administrative Complaint alleges that Section 458.331(1)(t), Florida Statutes, authorizes discipline against a licensed physician for gross or repeated malpractice or failure to practice medicine with that level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.

For each of the patients described below, except J. H. and

R. B. (as to whom Petitioner omitted allegations of inappropriate prescribing), the Administrative Complaint alleges five violations. The first count as to each patient alleges that Respondent failed to perform a statutory or legal obligation by engaging in unnecessary diagnostic testing because the test results were within acceptable limits, the tests lacked

medical justification, and the tests were not reasonably calculated to assist the diagnosis and treatment of the patient.

The second count as to each patient alleges that Respondent failed to keep legible medical records justifying the course of treatment of the patient because Respondent failed to accurately document and justify the course of treatment used in the care of the patient.

The third count as to each patient alleges that Respondent exercised influence on the patient in such a manner as to exploit the patient for the financial gain of the physician or a third party because Respondent repeatedly ordered excessive and unnecessary tests on the patient without medical justification.

The fourth count as to each patient (except J. H. and

R. B.) alleges that Respondent prescribed, dispensed, administered, mixed, or otherwise prepared a legend drug other than in the course of his professional practice because Respondent inappropriately prescribed thyroid-replacement medications based on laboratory tests that were within normal limits.

The fifth count as to C. M. and S. A. alleges that Respondent committed gross or repeated malpractice or failed to practice medicine with that level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances

because Respondent ordered inappropriate and excessive testing of the patient without medical justification, failed to perform an adequate history and physical examination, inadequately, inappropriately and inaccurately diagnosed the patient's condition, and prescribed thyroid-replacement medications inappropriately. As to J. H., B. H.-M., S. B., R. B., P. G.,

C. H., L. L., and Sarah B., the allegations omit the inappropriate prescription of thyroid-replacement medications as a basis for an alleged violation of the applicable standard of care.

The Administrative Complaint alleges that C. M. was, on March 14, 1996, a 45-year-old female who presented to the Metabolic Treatment Center for the evaluation of obesity and weight-loss therapy. The Administrative Complaint alleges that

C. M. underwent blood testing and extensive nerve conduction testing before being examined by Respondent, who ordered an array of blood tests and diagnostic tests, including a complete blood count, serum electrolytes, serum chemistries, blood lipid profiles, liver function enzymes, and a complete panel of hormonal assays, including a thyroid profile (T3, T4, free and total T3 and T4, and TSH), FSH, and LH, all of which were within normal limits.

The Administrative Complaint alleges that the physical examination of C. M. revealed no significant abnormalities,

except dry skin, subjectively decreased biceps and Achilles bilaterally, and an old surgical scar on the abdomen.

The Administrative Complaint alleges that Respondent diagnosed C. M. with panhypopituitarism (defective or absent function of entire pituitary gland), peripheral neuropathy, diabetes, Chronic Fatigue Syndrome, hypercholesterolemia, depression, and possible candidiasis.

The Administrative Complaint alleges that C. M. presented to Respondent, on March 21, 1996, for follow-up and review of her lab work, and she was complaining of increasing pain in her back and neck. The Administrative Complaint alleges that C. M. had mildly elevated cholesterol of 239, but her lab tests were within normal limits, although most were performed in a nonfasting state, when, to be valid, they should have performed in a fasting state.

The Administrative Complaint alleges that, despite normal thyroid studies, C. M was started on Cytomel (thyroid hormone) and told to return to the office in two weeks. The Administrative Complaint alleges that C. M. returned to the office on April 14, 1996, for follow-up. She complained of a cold and continued to complain of back and neck pain. The Administrative Complaint alleges that Respondent performed a brief history and physical examination and ordered a battery of

blood and diagnostic tests, including a complete blood count and lower somatosensory evoked potential test.

The Administrative Complaint alleges that S. A. was, on June 3, 1998, a 54-year-old female who presented to the Metabolic Treatment Center for evaluation of obesity and weight- loss therapy. The Administrative Complaint alleges that Respondent performed a brief history and physical examination during this visit and ordered lab work, including progesterone, EBV, prolactin, and candida.

The Administrative Complaint alleges that Respondent diagnosed S. A. as suffering from "hyperthyroidism," despite normal thyroid function studies.

The Administrative Complaint alleges that S. A. presented to Respondent on July 2, 1998, for a follow-up. The Administrative Complaint alleges that Respondent ordered an immune panel for a sore throat and additional lab work.

The Administrative Complaint alleges that S. A. presented to Respondent on July 23, 1998, for a follow-up. The Administrative Complaint alleges that Respondent ordered an array of lab work, including zinc, thiamine, riboflavin, and a complete blood count. The Administrative Complaint alleges that

S. A. was given T3 and T4 supplement without medical necessity.

The Administrative Complaint alleges that B. H.-M. was, on April 22, 1997, a 52-year-old female, who presented to

Respondent with complaints of numbness, burning or tingling in the hands and feet, muscle weakness, dizziness, ear pain and deafness, pressure above the ears, a tendency to bruise easily, abdominal pain, constipation, bloating, brittle nails, low libido, urinary frequency, fatigue, inability to lose weight, and a feeling of the heart skipping beats. The Administrative Complaint alleges that B. H.-M. also complained of poor concentration and memory, depression, faulty memory, and swelling eyelids.

The Administrative Complaint alleges that, during the office visit, B. H.-M. underwent an electrocardiogram, for which the results were within normal limits. The Administrative Complaint alleges that Respondent ordered blood tests, including a complete blood count, chemistry, lipid profile, thyroid functions, insulin, prolactin, cortisol, DHEA, basal growth hormone, ferritin, IGF-1, progesterone, and LH/FSH, even though the LH/FSH test measures menopause status and B. H.-M. was menopausal and already on estrogen-replacement therapy. The Administrative Complaint alleges that Respondent documented in

B. H.-M.'s medical records working diagnoses of endocrine disorder, chronic fatigue, and panhypopituitarism.

The Administrative Complaint alleges that, on May 1, 1997, Respondent performed a nerve conduction study of B. H.-M.'s upper and lower extremities to rule out diabetic neuropathies,

but failed to refer the patient to a neurologist when the upper extremity study revealed neuropathy. The Administrative Complaint alleges that an electrocardiogram was performed and within normal limits. The Administrative Complaint alleges that Respondent prescribed 5 mg of Cytomel and 400 mg of Rezulin, despite normal thyroid tests. The Administrative Complaint alleges that Respondent switched B. H.-M. from Synthroid to Cytomel, despite lab findings showing that the patient's thyroid functions were within normal limits.

The Administrative Complaint alleges that, on May 29, 1997,

B. H.-M. returned to the Metabolic Treatment Center, reporting that she had never felt better. The Administrative Complaint alleges that Respondent's working diagnoses were endocrine disorder, chronic fatigue, hypercholesterolemia, and hypothyroidism. The Administrative Complaint alleges that Respondent repeated B. H.-M.'s complete blood count, chemistry, and lipid profile and tested thyroid functions and insulin levels.

The Administrative Complaint alleges that, on July 22, 1997, B. H.-M. returned to the Metabolic Treatment Center, as directed by Respondent. The Administrative Complaint alleges that Respondent ordered two blood profile tests to rule out any thyroid disorders. The Administrative Complaint alleges that Respondent's working diagnoses were endocrine disorder,

hypothyroidism, and dyspituitarism. The Administrative Complaint alleges that Respondent repeated a complete blood count, chemistry, lipid profile, thyroid functions, insulin levels and LH/FSH, prolactin, cortisol, ACTH, DHEA, growth hormone, and ferritin levels.

The Administrative Complaint alleges that, on November 7, 1997, B. H.-M. returned to the Metabolic Treatment Center, as directed by Respondent, and reported that she was feeling wonderful. The Administrative Complaint alleges that Respondent ordered two blood profile tests and a test of somatomedin C levels, and he repeated the complete blood count, blood chemistry and lipid profile, thyroid functions, and insulin levels. The Administrative Complaint alleges that Respondent prescribed Regenesis.

The Administrative Complaint alleges that, on December 5, 1997, B. H.-M. returned to the Metabolic Treatment Center, as directed by Respondent, who ordered a blood typing test and repeated tests of somatomedin C levels, the complete blood count, blood chemistry and lipid profile, thyroid functions, and insulin levels.

The Administrative Complaint alleges that, on July 11, 1997, R. B. presented to Respondent with a history of diabetes, hypertension, kidney stones, and hepatitis B. The Administrative Complaint alleges that Respondent failed to

perform an adequate history and physical examination of R. B. The Administrative Complaint alleges that Respondent's plan of treatment was "a battery of lab and Barnes' basal temperature."

The Administrative Complaint alleges that, on July 18, 1997, R. B. presented to Respondent with a blood pressure of 148/98. Respondent allegedly directed Respondent to return on July 22, 1997. On that date, R. B. allegedly returned, and Respondent allegedly ordered lab tests, including an EB virus, chemistry profile, and electrocardiogram, which was normal. The Administrative Complaint alleges that R. B. also underwent a nerve conduction study, which revealed multiple abnormalities, but Respondent failed to treat them.

The Administrative Complaint alleges that, on July 3, 1997,

P. G. was a 43-year-old female who presented to Respondent with complaints of pain and swelling joints, depression, and inability to lose weight. The Administrative Complaint alleges that Respondent made working diagnoses of hypothyroidism, hypertension, hypercholesterolemia, endocrine gland disorder, and chronic fatigue. The Administrative Complaint alleges that Respondent also determined that it was necessary to rule out pituitary access disorder.

The Administrative Complaint alleges that Respondent ordered complete blood work, including serum insulin, DHEA, ferritin, iron, SMAC 19, T3, T4, TSH, complete blood count with

differential (presumably of white blood cells), somatomedin C, HDL, LDL, VLDL, ACTH, FSH serum, cortisol, human growth hormone, prolactin, and serum LH. The Administrative Complaint alleges that Respondent instructed P. G. how to take the Barnes Basal Temperature assessment and to return in one week.

The Administrative Complaint alleges that, on July 7, 1997,

P. G. returned to the office so that her blood could be withdrawn again, due to a problem with the lab.

The Administrative Complaint alleges that, on July 11, 1997, P. G. presented to Respondent to discuss the lab results. Documenting that the lab results confirmed hyperinsulemia, hyperglycemia, hypothyroid--both by temperature and symptoms-- and panhypopituitarism, Respondent started P. G. on Cytomel (0.5 mcg), L-Glutamic, Rezulin (400 mcg), "Acid" (500 mcg), Chromium GTF 600 mcg, L-Carnitine (1000 mcg), "CoQ10" (100 mcg), and "Pro GH." Respondent allegedly told P. G. to return in one week.

The Administrative Complaint alleges that, on July 17, 1997, P. G. presented to Respondent, who increased the dosage of Cytomel, despite lab results indicating normal thyroid function. The Administrative Complaint adds: "In addition, G. H. was administered [sic] despite no evidence of deficiency."

The Administrative Complaint alleges that, on August 22, 1997, P. G. presented to Respondent to draw Alcat and Profile II to rule out food allergens, ingested allergens, and

environmental allergens. The Administrative Complaint alleges that Respondent performed an upper nerve conduction velocity study to rule out diabetic neuropathy.

The Administrative Complaint alleges that P. G. presented to Respondent on October 3 and 23, 1997. The Administrative Complaint alleges that, on November 25, 1997, P. G. presented to Respondent, who changed his medication "from T3 to p.r.o.

2.5 mg/100mg" and discussed growth hormone injections. The Administrative Complaint alleges that Respondent also drew a Spectrocel 3000 test to check the way P. G.'s cells operated internally and metabolized different ingestions.

The Administrative Complaint alleges that, on June 6, 1996,

C. H. was a 46-year-old female who presented to Respondent with complaints of hair loss, fatigue, and weight gain. The Administrative Complaint alleges that C. H. underwent a nerve conduction study, which was normal, and a physical examination that did not reveal any abnormalities.

The Administrative Complaint alleges that, on June 13, 1996, C. H. presented to Respondent, who started her on Cytomel, despite lab results indicating normal thyroid function. The Administrative Complaint alleges that the dosages of C. H.'s Cytomel were increased on June 20 and 27, 1996, despite lab results indicating normal thyroid function. The Administrative Complaint alleges that C. H. was taken off of Cytomel on

July 17, 1996, due to side effects and that she had follow-up visits on July 24 and August 9, 1996.

The Administrative Complaint alleges that, on May 30, 1996,

L. L. was a 48-year-old female who presented to Respondent with complaints of inability to lose weight, menstrual problems, fatigue, tingling in the arms and legs, swollen feet, swollen eyelids, excess thirst, cold hands, cold feet, and neck and back pain. The Administrative Complaint alleges that an examination revealed optic atrophy and depressed reflexes. The Administrative Complaint alleges that lab testing and nerve conduction studies of L. L.'s upper and lower limbs were measured and somatosensory evoked potentials were recorded and were within normal limits. The Administrative Complaint alleges that L. L. was asked to record her baseline temperature.

The Administrative Complaint alleges that, on June 6, 1996,

1. L. presented to Respondent and was started on Cytomel, despite lab results indicating normal thyroid function.

   The Administrative Complaint alleges that, on September 5, 1996, Sarah B. was a 56-year-old female who presented to Respondent with complaints of cold feet, tingling of arms and legs, dizziness, leg and back pain, constipation, brittle nails, hoarseness, depression, low libido, blurred vision, swollen eyelids, excessive urination, fatigue, weight gain, inability to lose weight, shortness or breath, and a history of high

   cholesterol and gestational diabetes. The Administrative Complaint alleges that a physical examination did not reveal any abnormalities and that lab tests, including thyroid function tests and a nerve conduction study, were within normal limits.

   The Administrative Complaint alleges that, on September 12, 1996, Sarah B. presented to Respondent, who started her on Cytomel, despite lab results indicating normal thyroid function. The Administrative Complaint alleges that, on September 20, 1996, Respondent discontinued the Cytomel, due to side effects, and started Sarah B. on niacin.

   On September 14, 2004--approximately seven years after the last alleged incident--Petitioner transmitted to the Division of Administrative Hearings the file in DOAH Case No. 04-3222PL. By Notice of Hearing issued September 24, 2004, the Administrative Law Judge set the final hearing in DOAH Case No. 04-3222PL to start November 16, 2004. On October 18, 2004, Respondent filed a Motion for Continuance, partly on the ground that Petitioner would soon file a second case with the Division of Administrative Hearings and these cases would be consolidated.

   The motion requests a hearing date, in accordance with dates provided in the Joint Response to Initial Order, in mid-January 2005. By Petitioner's Response to Motion for Continuance, also filed on October 18, Petitioner joined in the request for a later hearing date on the same ground. By Order issued the next

   day, the Administrative Law Judge continued the hearing to January 10, 2005.

   On November 12, 2004--over six years after the last alleged incident--Petitioner transmitted to the Division of Administrative Hearings the file in DOAH Case No. 04-4111PL. The Administrative Law Judge consolidated DOAH Case Nos.

   04-3222PL and 04-4111PL by Order issued December 3, 2004.

   
   

   On January 11, 2005, Respondent filed a Motion for Continuance on the grounds of the unavailability of certain medical records and the unavailability of Respondent's counsel, who practices in New Jersey. By Order issued two days later, the Administrative Law Judge continued the final hearing to February 14, 2005.

   On January 28, 2005, the Administrative Law Judge denied another request for continuance filed by Respondent on the preceding day. On February 7, 2005, Respondent filed a Renewed Motion to Dismiss or, in the Alternative, for the Grant of Continuance and for such further Relief as May Be Necessary.

   The main ground for the continuance was the need to take the deposition of a key witness for Petitioner. By Order issued February 16, 2005, the Administrative Law Judge continued the hearing to March 14, 2005. Respondent's counsel informed the tribunal of a scheduling conflict that he had for March 14, so a

   Notice of Hearing issued February 17, 2005, set the hearing for March 21, 2005.

   On March 17, 2005, Petitioner filed a Motion for Relinquishment, which states that the parties have settled the cases and would present the settlement at the August 2005 meeting of the Board of Medicine. The motion states that Respondent concurs with the motion. On the next day, the Administrative Law Judge entered an Order Closing File.

   On September 2, 2005, Petitioner filed a Motion to Reopen Two DOAH Cases, Maintain the Original DOAH Case Numbers and Schedule a Final Hearing, stating that the Board of Medicine rejected the settlement, and Respondent rejected the Board's counteroffer. By Order entered September 9, 2005, the Administrative Law Judge required the parties to file, by September 20, a notice stating dates in October and November on which they could try the consolidated cases. By response filed on September 20, 2005, Respondent cited scheduling conflicts and requested a final hearing in the first two weeks of December.

   Although the Administrative Law Judge had prematurely issued a Notice of Hearing on September 16, 2005, setting the hearing to start on November 7, 2005, he issued another Notice of Hearing resetting the final hearing to start on December 6, 2005. The Administrative Law Judge denied several more requests for continuance filed by Respondent, including one request that

   cited as a ground Respondent's termination of his attorney. Respondent consequently proceeded pro se.

   At the hearing, Petitioner called five witnesses and offered into evidence nine exhibits: Petitioner Exhibits 1-9. Respondent called one witness and offered into evidence 35 exhibits: Respondent Exhibits 1-35. All exhibits were admitted except Petitioner Exhibits 1-3 and Respondent Exhibits 8, 16, 26-27, 30, and 32. The parties proffered all excluded exhibits.

   The court reporter filed the transcript on January 19, 2006. The parties filed their post-hearing filings by

   February 2, 2006.

   
   

   FINDINGS OF FACT

   
   

   1. At all material times, Respondent has been a licensed physician in Florida, holding license number ME 51631. At all material times, Respondent has been Board-certified in ophthalmology. Respondent has not previously been disciplined.

   2. From 1996 to 1998, to supplement his income from the practice of ophthalmology in Deerfield Beach, Florida, Respondent worked at the Metabolic Treatment Center in

      Ft. Myers, typically receiving patients twice weekly at the center. At the Metabolic Treatment Center, Respondent typically saw patients whose many complaints had not been resolved by other physicians. The treatment philosophy of the Metabolic Treatment Center and its staff, including Respondent, was to

      check for and treat the metabolic component of patients' disorders.

   3. While Respondent worked at the Metabolic Treatment Center, between one and three physicians worked at the center, although Respondent, rather than another physician, typically saw his patients. Respondent's employment at the center ended shortly after the persons who owned it when he started working there sold it to a publicly traded corporation.

   4. After the change in ownership, Respondent did not like the new chief operating officer of the Metabolic Treatment Center. Respondent claims that he declined an offer from the chief operating officer to become the medical director of the center. Problems multiplied at the center until, one day, management abruptly locked out the staff and closed the center.

   5. In September 1999, the corporation owning and operating the Metabolic Treatment Center was administratively dissolved by the Florida Department of State. In subsequent litigation between Respondent and the Metabolic Treatment Center, Respondent obtained a circuit court order requiring the center to turn over medical records to him, but this order appears to have resulted in little, if any, actual relief, and the court case was closed in February 1999 without Respondent's obtaining copies of extensive medical records.

   6. Neither party disputes the fact that, while employed at the Metabolic Treatment Center, Respondent kept handwritten medical notes on each patient whom he saw. Respondent testified that these brief handwritten notes constituted less than five percent of the chart entries that he made on each patient. Respondent testified that he supplemented his handwritten notes, which he made while seeing a patient, by dictating or otherwise inputting more elaborate notes into a computer at the center. Petitioner contends that the handwritten notes were the only medical records that Respondent prepared for each patient. The Administrative Law Judge credits Petitioner's contention.

   7. Respondent attributed the loss of the more detailed medical records to the sudden termination of his relationship with the Metabolic Treatment Center and the subsequent refusal of the center's owners to allow Respondent access to these computer-stored records. It is impossible to credit Respondent's claim, at least to the extent of inferring the existence of extensive, detailed records for each of the patients in question.

   8. Respondent knew that any data that he inputted into a computer at the Metabolic Treatment Center were in jeopardy, unless he made copies of the computer files. As a self- described "per diem" physician at the center, Respondent knew that, at anytime, he could lose access to the facility and the

      computer-stored data at the facility. Before his abrupt termination, Respondent had encountered growing problems with the new Metabolic Treatment Center owners. Familiar with computer hardware and software, Respondent easily could have made copies of the computer files containing the medical records of his patients, but he failed to do so, and he cannot adequately explain this failure. The "failure" is because no such more detailed records ever existed.

   9. Respondent does not appear to have been especially attentive to detail, at least when practicing metabolic therapy at the Metabolic Treatment Center. In certain respects, the underlying conflict in these cases is between Respondent, practicing--holistically--metabolic therapy, and Petitioner's expert, Dr. Elton Shapiro, practicing--analytically-- endocrinology. Whatever else may be said of Respondent's holistic methodology, it cannot be said that a single tree ever blocked his view of the vast forest.

   10. At one point during the hearing, Respondent misread simple data on a chart. At no point during the hearing did Respondent claim the smallest recollection of any detail about any of the several patients involved in these cases. Although Petitioner's delay in prosecuting these cases would have presumably contributed to Respondent's failure to recall the details of his care for these patients, it is unusual that

       Respondent would lack any recollection whatsoever of any of the four patients who were clearly under his care at the center.

   11. Respondent claims to have spent an hour and a half with each new patient--a claim that is not credited--but nothing else in his testimony or the record contradicts the impression created by other aspects of the record of a high-volume practice at the Metabolic Treatment Center. A high-volume practice was not conducive to the kind of detailed record-keeping that Respondent claims to have undertaken. As Respondent himself testified, the center's management supplied him with forms that identified packages of lab tests, so that a single package combined useful tests with tests of little value, given the complaints, history, and findings concerning a particular patient. Respondent's ready acceptance and use of these test packages also militate against a finding that he attended closely to detail in his metabolic therapy practice.

   12. Discrediting Respondent's claim of a vast trove of detailed medical records does not mean that the present records are complete or even unaltered. Respondent's relations with the new owners of the Metabolic Treatment Center deteriorated to the point of hostility. A significant possibility exists that, following the cessation of operations at the center, existing medical records were not safeguarded and some records were lost.

   13. Likewise, records may have been altered. One record in these cases bears a handwritten printing of Respondent's name, misspelled. Another bears an awkward depiction of Respondent's letterhead from his east-coast opthamological practice--of which Respondent plausibly disclaims any knowledge.

   14. Although the Administrative Law Judge excluded records that appeared altered, some handwritten notes, lab results, and other materials may be missing from the present records. In making the findings below, the Administrative Law Judge has considered--patient-by-patient, entry-by-entry--all reasonable bases for inferences of the existence of other medical records, such as other handwritten notes or lab reports, that would support the quality of care that Respondent may have provided to any patient. The primary effect of this inferential process has been not to find, after examination of the admitted medical records, that the omission of a record of a patient history means that Respondent did not take one.

   15. With one minor exception, the sole basis for the admission of the medical records that have been admitted is Respondent's testimony identifying specific pages of records. The medical records adequately identified by Respondent are contained exclusively in Petitioner Exhibit 9, which is the transcript of Respondent's deposition taken, while he was still represented by counsel, on November 17, 2005. Attached to the

       transcript are about 300 pages of copies of purported medical records. (These pages are numbered 1-222 and 24-105.)

   16. The transcript discloses which records, by page number, that the Administrative Law Judge found that Respondent had adequately identified. After reviewing all of the evidence, the Administrative Law Judge has determined that he improperly admitted at the hearing other medical records. These records, which Respondent has never identified adequately, came from two main sources, although the original source in all cases was (or should have been) the Metabolic Treatment Center.

   17. The sources of these excluded records are of insufficient reliability to justify their admission. None of the patients themselves identified their medical records. Petitioner obtained the excluded records, which Respondent has never adequately identified, from two sources.

   18. First, Petitioner obtained some of the records from

       
       

       J. H., who is a cost-control employee of the insurer whose concerns led to the investigations that culminated in these cases. J. H. contacted Respondent during the course of her investigation into the reasonableness of the testing and treatment ordered by Respondent. In an odd twist, Respondent invited J. H. to assume the role of a patient at the center, and

       J. H. accepted his invitation. Presumably, Respondent took a history, made physical findings, and may have recommended a plan

       of treatment for the insurance investigator, who then, presumably foregoing the treatment plan, caused herself to be included among the 11 patients who eventually formed the subject of DOAH Case No. 04-4111PL. (As noted above, Petitioner has dropped its allegations concerning investigator/patient J. H.) The Administrative Law Judge finds that medical records produced exclusively from the insurer or J. H. lack sufficient reliability, under the facts of these cases, including the unusual involvement of the insurer's investigator in producing facts on which to prosecute Respondent, to justify their admission.

   19. Second, Petitioner obtained some records from Respondent's former attorney, who testified briefly at the final hearing. However, the source or sources of these records are unclear in the record. Given the age of these cases, the lack of proof concerning the preparation and custody of the putative medical records, and the fact that Respondent's former attorney obviously obtained the records from one or more other sources, it is impossible to find that the records identified by counsel are sufficiently reliable as to admit them into evidence.

   20. Only one category of medical records, besides those adequately identified by Respondent, is sufficiently reliable to be admitted into evidence. This category comprises those few records that Dr. Shapiro testified at the hearing were linked in

       time and content to other records already adequately identified by Respondent.

   21. This post-hearing exclusion of additional evidence affects only C. M. among the nine patients remaining in these two cases. For C. H., P. G., Sarah B., and S. A., Petitioner relied exclusively on the medical records attached to Petitioner Exhibit 9, substantial portions of which Respondent adequately identified. For B. H.-M., G. H., L. L., and R. B., Petitioner acknowledged at the hearing that it was relying exclusively on testimony because no records pertaining to these patients had been admitted.

   22. The absence of any acknowledgement by Respondent that he treated B. H.-M., G. H., L. L., R. B., or C. M., coupled with the absence of any admitted medical records for these five patients, preclude any factfinding about Respondent's care of these patients, or even that Respondent cared for them at all. Petitioner has therefore failed to prove any of the alleged violations concerning these five patients.

   23. C. H., a 46-year-old female, presented at the Metabolic Treatment Center for an initial visit on June 6, 1996. For C. H., pages 3 and 5-26 under tab "C. H." in Petitioner Exhibit 9 are admitted.

   24. On June 6, Respondent performed a physical examination of C. H. that revealed nothing of clinical significance. Under

       "impression," Respondent noted "pending labs & NCV." "NCV" is a study of nerve conduction velocity. An NCV study measures the speed of conduction of a nerve, which is an indication of the nerve's condition.

   25. C. H. completed an 11-item checklist for her health history and symptoms. Her history reported mitral valve regurgitation and prolapse, fibromylagia, and hypoglycemia. However, C. H. circled the "no" response to the question, "Do you have diabetes?" On another form, C. H. denied having had any of the listed conditions.

   26. C. H. also completed a checklist circling "yes" or "no" next to each of 14 symptoms and 11 conditions. C. H.'s symptoms included dizziness, chest pain, numbness in hands or feet, back pain, neck pain, shortness of breath, "a feeling that your heart skips a beat," "a fluttering sensation in your heart," fatigue, weight gain, inability to lose weight, depression and menstrual problems. C. H. indicated that her history did not include any of the listed conditions.

   27. Prior to sending C. H. to obtain NCV studies from another physician working for the Metabolic Treatment Center, Respondent completed a Metabolic Treatment Center form entitled, "Letter of Medical Necessity." The purpose of the form, according to the preprinted contents, is for Respondent to certify that services are "medically necessary" and "reasonable

       and necessary." The form shows that Respondent ordered NCV studies of the upper and lower extremities by the Metabolic Treatment Center to rule out peripheral neuropathy, possibly of a diabetic nature.

   28. Dr. Martin S. Goldstein of the Metabolic Treatment Center performed the NCV studies on the date of the initial visit. Bearing the date of June 6, 1996, and the heading, "Metabolic Treatment Center," the report states that a "slowed conduction is demonstrated" for the left upper extremity. The report includes the impression of "peripheral neuropathy."

   29. Respondent never addressed the question of diabetes according to the medical records. Blood work performed on June 7, 1996, June 28, 1996, and July 24, 1996, revealed that

       glucose was in the normal range and serum insulin was normal on June 7 and July 24, but high on June 28. The records do not indicate whether Respondent ruled out diabetes, as was his documented intent on the original office visit, nor do the records contain any discussion of Respondent's conclusions from this repeated blood work, if he did not feel that he could rule out diabetes. The portion of the rule-out diagnosis mentioning diabetes merely faded out of the records, except, of course, for repeated blood work that typically assists a practitioner in diagnosing diabetes.

   30. At least as to Respondent's handling of the question of diabetes, Petitioner proved that the medical records fail to justify the course of treatment following a rule-out diagnosis of peripheral neuropathy, possibly of a diabetic nature.

   31. Petitioner also proved that Respondent's ordering of the NCV studies was unnecessary and excessive, despite the abnormality disclosed in the upper left extremity. The salient facts are: 1) Respondent ostensibly ordered the NCV studies to rule out peripheral neuropathy, possibly of a diabetic nature;

       2) the NCV studies revealed likely peripheral neuropathy of the upper left extremity; and, most importantly, 3) Respondent's medical records contain no discussion of the meaning of the abnormal finding from the NCV study of the upper left extremity. Notwithstanding the abnormal NCV finding, Respondent failed to refer C. H. to a neurologist, undertake treatment himself, or document why he was taking neither action.

   32. Respondent's failure to act on the abnormal finding proves that he never intended to do anything if the NCV studies uncovered anything wrong, as one did. Additionally, Respondent ordered the NCV studies without first testing C. H.'s sensory or motor functions and despite the patient's denial of any tingling in the arms or legs. The evidence establishes that C. H.'s tests were unnecessary and excessive.

   33. By failing to act on the abnormal NCV finding, Respondent failed to conform to the applicable standard of care. However, Petitioner's standard of care allegations cite only inappropriate and excessive testing, failing to perform an appropriate history and physical examination, and inappropriately and inaccurately diagnosing C. H. The excessive testing with respect to the NCV studies, discussed above, is better described as a failure to conform to a statutory duty than a failure to satisfy the applicable standard of care.

       Other excessive testing, discussed immediately below, is better described as the exploitation of a patient for financial gain. For the reasons noted in the Conclusions of Law, below, it is impossible to conclude that Respondent's failure to act on the abnormal NCV result violates the applicable standard of care because of the absence of a specific allegation to this effect.

   34. The blood work of June 28 and July 24, 1996, was excessive for several reasons. In most cases, items tested were normal when first tested on June 7, but this first round of blood work was generally appropriate. However, no medical reason existed to retest such items three weeks later or one month after the second round of blood work.

   35. For example, Respondent ordered an iron reading on June 7, despite any basis to suspect anemia. The reading was normal, but Respondent retested it on June 28 and July 24--on

       which occasions, iron remained within the normal range. Respondent tested amylase on all three occasions--despite any complaint, such as acute abdominal pain, that would suggest pancreatitis and justify a test for amylase--and on all three occasions amylase levels were normal. As noted above, Respondent tested serum insulin on all three occasions, again for no apparent reason, after the initial test was normal and the second test revealed only a slight elevation.

   36. Respondent ordered additional tests that were unnecessary in connection with the above-described blood work. Items tested unnecessarily include prolactin (absent any problem with excessive milk production), cortisol (especially as it was not a suppression test, but was a random test, which is useless), ACTH (especially because it was ordered before any cortisol abnormality was found), DHEA (absent any finding of masculinization), and human growth hormone (in the absence of any indication of an abnormality in growth hormone).

   37. Petitioner proved that Respondent ordered unnecessary and excessive tests to exploit C. H. for financial gain.

   38. On June 13, 1996, Respondent saw C. H. for the first time after her initial visit a week earlier and started her on Cytomel, 5 mcg each, four times daily. Cytomel is T3, a synthetic thyroid hormone. T3 combines in the blood with another thyroid hormone, T4, to regulate the metabolism of the

       cells within the body. Normally, when these hormones fall too low in the blood, the pituitary gland produces thyroid stimulating hormone (TSH), which stimulates the thyroid gland to produce more T3 and T4.

   39. The June 7 blood work revealed that total T3 and TSH were well within the normal range, although T4 was either at the low range of normal or just below the normal range. The June 28 and July 24 blood work showed values only for total T3, which were again well within the normal range.

   40. Without any support in the medical records except a notation of "low energy," Respondent elected to commence thyroid hormone supplementation. Within a week after starting on this prescription, C. H. had reduced the frequency of taking the Cytomel to three times daily due to heart palpitations, which is a known side effect of the drug. However, during an office visit on June 27, Respondent advised C. H. to resume taking Cytomel--5 mcg, five times daily--obviously after learning of the heart palpitations, but before obtaining the results of the June 28 lab work showing a normal total T3 level. C. H. discontinued taking Cytomel on July 11, 1996, due to feelings of fatigue. On August 9, 1996, C. H. reported, for the first time, that she "feels great," although, judging from the medical records, her recovery seems to have been spontaneous.

   41. Petitioner proved that Respondent's initial prescription of Cytomel was inappropriate and outside the course of practice because the blood work indicated normal values for the relevant hormones. The medical records contain no trace of a discussion of why Respondent would prescribe T3 for a patient with these values, complaints, and history. Not only was the Cytomel useless, but, for C. H., it produced cardiac side effects.

   42. If Petitioner had alleged the inappropriate prescription of thyroid medications as a basis for an alleged violation of the applicable standard of care, as it did with respect to C. M. and S. A., Petitioner would also have proved that the increased prescription of Cytomel, on June 27, violated the applicable standard of care. The resumption of the Cytomel prescription on June 27 departed from the applicable standard of care because Respondent knew that the Cytomel had produced a potentially dangerous side effect, and he ordered C. H. to increase the dosage of Cytomel before he had even seen the results of the blood work done the following day--which results again showed a normal total T3 level. Respondent's treatment plan, if it fact it can be called a plan, seems completely unrelated to C. H. and the findings of any physical examination and lab work or the complaints and history that she related to Respondent. Not surprisingly, her recovery seems similarly

       unrelated to any treatment plan. However, Petitioner failed to allege the prescription of thyroid medication as a basis for an alleged violation of the applicable standard of care as to C. H.

   43. Petitioner failed to prove the three alleged grounds for an alleged violation of the applicable standard of care. Petitioner failed to prove that the history or physical examination was inadequate or that the only diagnosis in the records--a rule-out diagnosis--was inaccurate or inappropriate. Although Petitioner proved some inappropriate and excessive testing, this improper testing is best described as a failure to perform a statutory obligation, with respect to the NCV studies, and as the financial exploitation of a patient, as to the repeated and unjustified blood work.

   44. Thus, as to C. H., Petitioner proved a failure to perform a statutory obligation, a failure to maintain adequate medical records, the exploitation of a patient for financial gain, and the inappropriate prescription of a thyroid replacement medication, but not a violation of the applicable standard of care.

   45. P. G., a 43-year-old female, presented at the Metabolic Treatment Center for an initial visit on July 3, 1997. For P. G., pages 43-44 (top), 47-48, and 55-69 under tab "P. G." in Petitioner Exhibit 9 are admitted.

   46. Following a physical examination, Respondent noted diminished deep tendon reflexes at the right and left dorsal pedal sites, right and left biceps sites, right and left post- tibial sites, and right and left poplyteal sites.

   47. Respondent obtained a history that included high blood pressure and heart disease, as well as a family history of heart disease. P. G. complained particularly about depression, pain, swelling in the joints for five years, faulty memory, joint pain, and poor concentration. She also complained of fatigue, numbness, tingling, and muscle aches.

   48. Petitioner failed to prove a violation of the applicable standard of care for a failure to perform an adequate physical examination or history.

   49. Respondent made a working diagnosis of hypothyroidism, hypertension, endocrine gland disorder, and chronic fatigue. He also made a rule-out diagnosis of pituitary access disorder. Respondent ordered blood work and directed P. G. to record her basal temperature daily. Petitioner failed to prove a violation of the applicable standard of care for a misdiagnosis, at this point in Respondent's care of P. G.

   50. Petitioner's expert witness described NCV studies that Respondent ordered of P. G.'s upper and lower extremities on July 3, but Petitioner failed to prove that these studies took place. The portion of the medical records (p. 45 under tab

       "P. G." in Petitioner Exhibit 9) discussing the results of the NCV studies was not admitted into evidence, and the NCV reports themselves were not offered into evidence. Petitioner failed to prove a failure to perform a statutory obligation for ordering unnecessary NCV studies.

   51. The blood work resulting from a collection occurring on July 8, 1997, revealed elevated glucose and cholesterol components. Earlier blood work done in January 1997 revealed elevated cholesterol components, but not glucose. The July 1997 lab work reported normal levels of total T3, T4, and TSH, which are consistent with the results of the January 1997 lab work for T4 and TSH (T3 was not tested in January 1997).

   52. In ordering the blood work for July 7, Respondent ordered analysis of insulin, iron, cortisol, growth hormone, and prolactin. For the reasons discussed in connection with C. H., Petitioner proved that these tests were medically unnecessary. Petitioner thus proved that Respondent exploited P. G. for financial gain in ordering all of these unnecessary tests.

   53. P. G. returned to Respondent's office on July 11 to discuss the results of the blood work. Respondent diagnosed her with, among other conditions, hypothyroid "both by temperature and symptoms." Although Respondent noted the thyroid readings from the July 7 blood work, he failed to discuss the relationship between these normal readings and his diagnosis of

       hypothyroid. Petitioner thus proved that the medical records do not justify the course of treatment. Additionally, distinct from this shortcoming in the medical records, Petitioner proved that Respondent inaccurately diagnosed P. G. with hypothyroidism and thus failed to satisfy the applicable standard of care.

   54. The lab work relating to P. G.'s thyroid function resembles the NCV studies of C. H. in terms of a lack of medical necessity. In the case of C. H., Respondent ordered the NCV studies for a reason other than to assist in diagnosis because, when they disclosed an abnormality, he ignored the positive finding and took no action. In the case of P. G., Respondent ordered the thyroid tests for a reason other than to assist in diagnosis because, when they revealed no problems with thyroid function, he ignored the negative finding and proceeded as he presumably would have if the tests had produced a positive finding of thyroid abnormality. Petitioner has proved that the blood work on thyroid function lacked medical justification and was unnecessary, and Respondent thus failed to perform a statutory obligation.

   55. On July 11, Respondent started P. G. on Cytomel, "0.5" mcg, four times daily. (An error in the sequencing of Respondent's medical records under tab "P. G." in Petitioner Exhibit 9 places immediately after the page describing the

       July 3 visit a page noting an increase in the dosage of Cytomel.

       Given the presence of an August 22 entry on this latter page, it is obvious that the page containing the entry increasing the Cytomel should have followed the page that ends with the July 31 visit.)

   56. Also on the July 11 office visit, Respondent started

       
       

       P. G. on human growth hormone. The July 7 blood work did not support this treatment because Respondent failed to test for human growth hormone either after exercise stimulation or glucose suppression. The value for human growth hormone in the July 7 blood work appears to be within the normal range.

   57. At the next office visit, which took place on July 31, 1997, Respondent also increased P. G.'s Cytomel to 10 mcg four times daily and ordered her to take human growth hormone on a cycle of five days on and two days off. As on July 11, Respondent, on July 31, lacked any justification to prescribe Cytomel or human growth hormone to P. G.

   58. Petitioner proved that Respondent inappropriately prescribed controlled substances to P. G. However, this finding applies only to the prescription of Cytomel because Petitioner never alleged that Respondent inappropriately prescribed human growth hormone. Although the inappropriate prescription of Cytomel probably would also constitute a violation of the applicable standard of care, Petitioner did not make such an allegation regarding P. G.

   59. Thus, as to P. G., Petitioner proved a failure to perform a statutory obligation, a failure to maintain adequate medical records, the exploitation of a patient for financial gain, the inappropriate prescription of a thyroid replacement medication, and the violation of the applicable standard of care.

   60. Sarah B., a 52-year-old female, presented at the Metabolic Treatment Center for an initial visit on September 5, 1996. For Sarah B., pages 72-80 and 87 under tab "Sara [sic] B." in Petitioner Exhibit 9 are admitted.

   61. No patient history was admitted into evidence, but it is impossible to infer from this omission that Respondent failed to obtain an appropriate patient history. Completed forms were present for other patients, the forms seem to have been readily available for completion by patients (not Respondent), and completed forms, which supplied numerous conditions or complaints that the patient had only to recognize and mark, set the stage for metabolic treatment of these numerous conditions or complaints.

   62. The records document Respondent's physical examination of Sarah B. on September 5, 1996, and disclose no abnormalities. Under "impression," Respondent stated, "pending labs and NCV."

   63. Petitioner failed to prove a violation of the applicable standard of care for a failure to perform an adequate physical examination or history.

   64. Performed on September 5, the NCV studies, again performed by Dr. Goldstein of the Metabolic Treatment Center, find a "mild focal peripheral neuropathy." Respondent next saw Sarah B. on September 12 and 20, 1996, but his notes omit any mention of the neuropathy. Once again, Respondent failed to treat the condition revealed by the NCV studies, refer the patient to a neurologist, or at least explain why he was taking no action.

   65. For the reasons discussed in connection with C. H., Petitioner proved that the NCV studies ordered by Respondent lacked medical justification and were unnecessary, and Respondent thus failed to perform a statutory obligation.

   66. Respondent ordered analysis of cortisol, DHEA, human growth hormone, iron, prolactin, and amylase. The records reveal no justification for these tests. Petitioner proved that Respondent exploited Sarah B. for financial gain.

   67. The September 5 blood work revealed normal values for T4, total T3, and TSH. Despite the absence of any thyroid abnormalities, on September 12, Respondent started Sarah B. on Cytomel, 5 mcg, four times daily. Respondent's notes reveal no

       reason why he started Sarah B. on Cytomel and lack even the specificity of the notes on the same issue with respect to P. G.

   68. Petitioner proved that the medical records fail to justify the course of treatment.

   69. However, Respondent discontinued the Cytomel one week later. Although the notes fail to explain the reason for his action, Respondent's prompt discontinuation of Cytomel demands more proof than Petitioner has provided, if it were to prove that the weeklong prescription of Cytomel was inappropriate or, had Petitioner pleaded the prescription of Cytomel as a violation of the applicable standard of care, deviated from the applicable standard of care.

   70. Thus, as to Sarah B., Petitioner proved a failure to perform a statutory obligation, a failure to maintain adequate medical records, and the exploitation of a patient for financial gain, but not the inappropriate prescription of a thyroid replacement medication or the violation of the applicable standard of care.

   71. S. A., a 53-year-old female, presented at the Metabolic Treatment Center for an initial visit on June 3, 1998. For S. A., pages 88-90, 92, 97-99, and 100-06 under tab "S. A." in Petitioner Exhibit 9 are admitted.

   72. After performing a physical examination, which included pulses and reflexes of the extremities, Respondent

       formed the impression that S. A. probably suffered from peripheral neuropathy. As is the case with Sarah B., no patient history is contained in the medical records, but, for the reasons stated above, it is impossible to find that Respondent failed to take a history. Petitioner thus failed to prove a violation of the applicable standard of care by failing to perform an appropriate physical examination or history.

   73. S. A. is dissimilar to the above-described patients in several respects. First, according to the testimony of

       Dr. Shapiro, S. A. suffered from hypothyroid disorder, so the ordering of blood work to assess thyroid function and the prescribing of thyroid supplement were appropriate. Second, judging from the medical records, Respondent did not order NCV studies. Third, S. A. was an uncooperative patient. Fourth, the lab reports on the blood work are substantially illegible, likely due to poor copying, with the result that it is impossible to read the values and ranges for particular items that are tested and, in some cases, read the items themselves. In general, no clear picture of the findings, diagnoses, and treatment plan emerges from the record, with the sole exception stated in the following paragraph.

   74. The sole exception is that it is clear from the records that Respondent, again, ordered tests of numerous items,

       such as testosterone (absent masculinization), prolactin, cortisol, growth hormone, and blood type, that were unnecessary. Petitioner thus proved that Respondent exploited S. A. for financial gain, but failed to prove the remaining S. A.-related allegations.

       CONCLUSIONS OF LAW

       
       

   75. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Fla. Stat.

   76. Section 458.331(1), Florida Statutes, authorizes the Board of Medicine to impose discipline for the following:

       (g) Failing to perform any statutory or legal obligation placed upon a licensed physician.

       
       

       1. Failing to keep legible, as defined by department rule in consultation with the board, medical records that identify the licensed physician or the physician extender and supervising physician by name and professional title who is or are responsible for rendering, ordering, supervising, or billing for each diagnostic or treatment procedure and that justify 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.

          
          

       2. Exercising influence on the patient or client in such a manner as to exploit the patient or client for financial gain of the licensee or of a third party, which shall include, but not be limited to, the promoting

       or selling of services, goods, appliances, or drugs.

       
       

       (q) Prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician's professional practice. For the purposes of this paragraph, it shall be legally presumed that prescribing, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances, inappropriately or in excessive or inappropriate quantities is not in the best interest of the patient and is not in the course of the physician's professional practice, without regard to his or her intent.

       
       

       1. Notwithstanding s. 456.072(2) but as specified in s. 456.50(2):

          1. Committing medical malpractice as defined in s. 456.50. The board shall give great weight to the provisions of s. 766.102 when enforcing this paragraph. Medical malpractice shall not be construed to require more than one instance, event, or act.

          2. Committing gross medical malpractice.

          3. Committing repeated medical malpractice as defined in s. 456.50. A person found by the board to have committed repeated medical malpractice based on s.

       456.50 may not be licensed or continue to be licensed by this state to provide health care services as a medical doctor in this state.

       
       

       Nothing in this paragraph shall be construed to require that a physician be incompetent to practice medicine in order to be disciplined pursuant to this paragraph. A recommended order by an administrative law judge or a final order of the board finding a violation under this paragraph shall specify whether the licensee was found to have committed "gross medical malpractice," "repeated medical malpractice," or "medical

       malpractice," or any combination thereof, and any publication by the board must so specify.

   77. Section 456.50(1)(g) defines "medical malpractice" as: the failure to practice medicine in

       accordance with the level of care, skill,

       and treatment recognized in general law related to health care licensure.

       
       

   78. Relevant to the performance of a statutory obligation, Section 766.111(1) and (2), Florida Statutes, provides:

       1. No health care provider licensed pursuant to chapter 458, chapter 459, chapter 460, chapter 461, or chapter 466 shall order, procure, provide, or administer unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of a patient's condition.

          
          

       2. A violation of this section shall be grounds for disciplinary action pursuant to s. 458.331, s. 459.015, s. 460.413,

          s. 461.013, or s. 466.028, as applicable.

          
          

   79. Relevant to the duty to maintain proper medical records, Florida Administrative Code Rule 64B8-9.003(1)-(3) states:

       1. Medical records are maintained for the following purposes:

          
          

          1. To serve as a basis for planning patient care and for continuity in the evaluation of the patient’s condition and treatment.

          2. To furnish documentary evidence of the course of the patient’s medical evaluation, treatment, and change in condition.

          3. To document communication between the practitioner responsible for the patient and any other health care professional

             who contributes to the patient’s care.

          4. To assist in protecting the legal interest of the patient, the hospital, and the practitioner responsible for the patient.

             
             

       2. A licensed physician shall maintain patient medical records in English, in a legible manner and with sufficient detail to clearly demonstrate why the course of treatment was undertaken or why an apparently indicated course of treatment was not undertaken.

          
          

       3. The medical record shall contain sufficient information to identify the patient, support the diagnosis, justify the treatment and document the course and results of treatment accurately, by including, at a minimum, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; reports of consultations and hospitalizations; and copies of records

          or reports or other documentation obtained from other health care practitioners at the request of the physician and relied upon by the physician in determining the appropriate treatment of the patient.

          
          

   80. 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).

   81. The charging documents allege the acts and omissions that, if proved, constitute the grounds for imposing discipline against Respondent. The citation to a statute allegedly

       violated does not absolve Petitioner of pleading with specificity the acts or omissions that violate the statute and does not authorize the Board of Medicine to rely on different acts or omissions, even if proved at the hearing, in determining that Respondent has violated the cited statute. See Trevisani v. Department of Health, 908 So. 2d 1108 (Fla. 1st DCA 2005) (Board may not impose discipline on physician for violation of Section 485.331(1)(m), Florida Statutes, for proved failure to maintain medical records when charging document alleged that physician failed to keep (i.e., create) such documents). As noted above, the Administrative Law Judge has declined to find violations that Petitioner failed to allege.

   82. Petitioner has proved four counts of exploiting a patient for financial gain, three counts of failing to perform a statutory obligation, three counts of failing to maintain adequate medical records, two counts of prescribing thyroid replacement medication inappropriately, and one count of violating the applicable standard of care.

   83. Florida Administrative Code Rule 64B8-8.001 provides the disciplinary guidelines for these violations. Rule

       64B8-8.001(2)(n) states that, for a first offense, the range for the financial exploitation of a patient is payment of the exacted fees, which were not established in this record, and from probation to two years' suspension and a fine of $5000 to

       $10,000. Rule 64B8-8.001(2)(g) states that, for a first offense, the range for the failure to perform a statutory obligation is a letter of concern to revocation and a fine of

       $1000 to $10,000. Rule 64B8-8.001(2)(m) states that, for a first offense, the range for the failure to maintain adequate medical records is reprimand to two years' suspension followed by probation and a fine of $1000 to $10,000. Rule

       64B8-8.001(2)(q) states that, for a first offense, the range for an inappropriate prescription is one year's probation to revocation and a fine of $1000 to $10,000. Rule

       64B8-8.001(2)(t)3 states that, for a first offense, the range for a violation of the applicable standard of care is two years' probation to revocation and a fine of $1000 to $10,000.

   84. The more important mitigating factor is that the alleged and proved violations posed little danger to the public. (Petitioner failed to allege the sole act or omission that posed a moderate risk to the public--i.e., the re-prescription of Cytomel to C. H.). The other mitigating factor is that Respondent has not previously been disciplined.

   85. The aggravating factor is the number of offenses proved in DOAH Case No. 04-4111PL: 13. The minimum fines amount to $29,000. For financial exploitation, the failure to perform a statutory obligation, the failure to maintain adequate medical records, an inappropriate prescription, and a violation

       of the applicable standard of care, respectively, the minimum non-fine penalties are probation for an unspecified period, a letter of concern, a reprimand, probation for one year, and probation for two years, and the maximum non-fine penalties are suspension for two years, revocation, suspension for two years plus probation, revocation, and revocation.

   86. On balance, the mitigating factors substantially outweigh the aggravating factors, so a downward departure from the penalty guidelines is necessary. Given the fact that the acts and omissions are all driven by the economics of Respondent's high-volume practice that relied excessively on various diagnostic procedures, no deviation from the minimum penalty is appropriate. However, the lack of potential for public harm requires the imposition of only five years'

probation.

It is

RECOMMENDATION

RECOMMENDED that the Board of Medicine enter a final order dismissing DOAH Case No. 04-3222PL and dismissing all counts in DOAH Case No. 04-4111PL, except the four counts alleging the financial exploitation of C. H., P. G., Sarah B., and S. A.; the three counts alleging the failure to perform a statutory obligation regarding C. H., P. G., and Sarah B.; the three counts alleging the failure to maintain adequate medical records

regarding C. H., P. G., and Sarah B.; the two counts alleging inappropriate prescriptions to C. H. and P. G.; and the one count alleging a violation of the applicable standard of care as to P. G. For these violations, the Board should enter a final order imposing an administrative fine of $29,000 against Respondent and placing his license on probation for five years.

DONE AND ENTERED this 5th day of May, 2006, in Tallahassee, Leon County, Florida.

S

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 5th day of May, 2006.

COPIES FURNISHED:

Timothy M. Cerio, General Counsel Department of Health

4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701

Dr. M. Rony Francois, Secretary Department of Health

4052 Bald Cypress Way, BIN A00 Tallahassee, Florida 32399-1701

Larry McPherson, Executive Director Board of Medicine

Department of Health 4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

Irving Levine Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, BIN C65 Tallahassee, Florida 32399-3265

Marvin Reich

1979 West Hillsboro Road Deerfield Beach, Florida 33442

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.

Docket for Case No: 04-003222PL

Orders for Case No: 04-003222PL