STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) MEDICINE, )

)

Petitioner, )

)

vs. )

) MYRDALIS DIAZ-RAMIREZ, M.D., )

)

Respondent. )

Case No. 10-9316PL

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on December 6, 2010, in Sarasota, Florida, before Susan B. Harrell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Yolonda Y. Green, Esquire

Diane K. Kiesling, Esquire Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399

For Respondent: Carol Ann Kalish, Esquire

Williams, Parker, Harrison Dietz & Getzen

200 South Orange Avenue Sarasota, Florida 34236

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated section 456.072(1)(bb), Florida Statutes (2008),1/ and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On August 24, 2009, Petitioner, Department of Health (Department), filed a one-count Administrative Complaint with the Board of Medicine (Board), alleging that Respondent, Myrdalis Diaz-Ramirez, M.D. (Dr. Diaz-Ramirez), violated section 456.072(1)(bb), by performing a wrong-site procedure, a wrong procedure, or an unauthorized procedure or a procedure that is medically unnecessary or otherwise unrelated to the patient's diagnosis or medical condition. Dr. Diaz-Ramirez requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings on September 27, 2010, for assignment to an Administrative Law Judge.

On November 19, 2010, the Department filed a Motion for Official Recognition, requesting that official recognition be taken of Florida Administrative Code Rule 64B8-8.001. The motion was granted by Order dated November 29, 2010.

The parties entered into a Joint Pre-hearing Stipulation and stipulated to certain facts contained in section E of the Joint Pre-hearing Stipulation. To the extent relevant, those facts have been incorporated in this Recommended Order.

At the final hearing, the Department called Linda Rae Daprato, Ronda Layton, and Debra Osborne as its witnesses. Petitioner's Exhibits A through C, F, and H were admitted in evidence. At the final hearing, Dr. Diaz-Ramirez testified in her own behalf. Dr. Diaz-Ramirez did not submit any exhibits for admission in evidence.

The two-volume Transcript was filed on December 28, 2010.

The parties agreed to file their proposed recommended orders within ten days of the filing of the Transcript. On January 3, 2011, the Department filed a motion to extend the time for filing proposed recommended orders. The motion was granted by Order dated January 4, 2011, and the time for filing proposed recommended orders was extended to January 14, 2011. The parties timely filed their Proposed Recommended Orders, which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Department is the state department charged with regulating the practice of medicine pursuant to section 20.43 and chapters 456 and 458, Florida Statutes.

2. At all times material to this case, Dr. Diaz-Ramirez was a licensed medical doctor within the State of Florida having been issued license number ME96703. Dr. Diaz-Ramirez is board

   
   

   certified by the American Board of Anesthesiology and Pain Management.

3. At all times material to this case, Dr. Diaz-Ramirez was employed by Sarasota Memorial Hospital (SMH) Physician's Services Group, as a medical director of the pain management program. On October 7, 2008, C.C. presented to Dr. Diaz- Ramirez's office for evaluation for continued treatment of her long-standing back pain. Dr. Diaz-Ramirez examined C.C. and noted her assessment as chronic low back, right leg, and hip pain with severe right L2-3 foraminal stenosis, status post L3- S1 fusion, and lumbar postlaminectomy syndrome. There was no indication on October 7, 2008, that C.C. was having problems with her sacroiliac joint.

4. Dr. Diaz-Ramirez discussed her treatment plan with C.C. and noted the following in C.C.'s medical records:

   Today we reviewed the actual CT scan films from 07/10/2006. We have also reviewed her laboratories from July. The pain is persistent. It seems to be spinal in origin. We have decided to perform bilateral L2-3 transforaminal epidural steroid injections for pain management of her symptoms. She will continue with current analgesics. She was instructed to take her oxycodone every six hours. We will be performing these injections twice and we will see her in follow-up 2-3 weeks after the injections.

   
   

5. Dr. Diaz-Ramirez signed an order for bilateral L2-3 transforaminal epidural steroid injections to be done two times.

   
   

   This order was on a document entitled Discharge Instructions.2/ When the order for the first bilateral L2-3 transforaminal epidural steroid injections was put into the scheduling system for the Sarasota Memorial Health Care System Pain Management procedure area, the procedure was erroneously scheduled as a sacroiliac joint injection. Because of the scheduling error, all of the documentation for the procedure, including the physician order for the procedure and the consent form, was filled out for a sacroiliac joint injection.

6. On October 15, 2008, C.C. presented for bilateral L2-3 transforaminal epidural steroid injections. Prior to performing the procedure, Dr. Diaz-Ramirez examined C.C. C.C. advised

   Dr. Diaz-Ramirez that her pain had increased and moved. However, the pre-operative history and physical notes hand written by Dr. Diaz-Ramirez at 8:35 a.m. on October 15, 2008, state that the history and physical remain unchanged from October 7, 2008, except for a sprain of C.C.'s left ankle.

7. Prior to doing the procedure on October 15, 2008,

   
   

   Dr. Diaz-Ramirez talked with C.C. and explained to C.C. that a sacroiliac joint injection would be performed. It was Dr. Diaz- Ramirez's opinion that based on the examination and her discussion with C.C. that a sacroiliac joint injection was appropriate for C.C.'s pain on that day. C.C. signed a consent form for a sacroiliac joint injection.

   
   

8. Dr. Diaz-Ramirez performed the sacroiliac joint injection on C.C. After the procedure, Dr. Diaz-Ramirez went back to her office to dictate her notes. For the first time that day, she looked at her original order and saw that on October 7, 2008, she had ordered bilateral L2-3 transforaminal epidural steroid injections for C.C. Realizing that there had been a scheduling error, she contacted Ronda Layton

   (Ms. Layton), the clinical coordinator for the pain management center. This was not the first time that a scheduling error had taken place, and Dr. Diaz-Ramirez reported the scheduling error to Ms. Layton so that the problem could be addressed.

9. Dr. Diaz-Ramirez and Ms. Layton went to the bedside of

   
   

   C.C. and told her that a wrong procedure had been done. C.C. was advised that she had been scheduled for bilateral L2-3 transforaminal epidural steroid injections, but a sacroiliac joint injection had been performed. C.C. was also advised that Dr. Diaz-Ramirez felt that the sacroiliac joint injection was the appropriate procedure for the pain that C.C. was experiencing that day.

10. After talking with C.C., Dr. Diaz-Ramirez dictated her report on October 15, 2008. She noted that her pre-operative diagnoses were "[l]eft low back pain, sacroiliac pain and lumbar spinal stenosis." This is the first time that Dr. Diaz-Ramirez specifically noted that C.C. was experiencing sacroiliac pain.

    
    

11. Her notes further stated:

    
    

    The patient is a [redacted] year-old [redacted] patient with chronic low back pain with lumbar spinal stenosis scheduled for bilateral L2-L3 transforaminal epidural steroid injection. We performed sacroiliac joint steroid injection for management of her symptoms.

    
    

12. On October 28, 2008, Dr. Diaz-Ramirez made an addendum to her report dated October 15, 2008. The addendum stated:

    After the procedure was done, it was discovered that the intended scheduled procedure was not performed. The patient was made immediately aware and full disclosure was made. Under the circumstances of the evaluation this morning, the sacroiliac joint injection would not have been an inappropriate procedure to perform for this patient and she actually received immediate relief in the area of her pain. The patient understood. She agrees and she will be seen for her intended scheduled procedure of a bilateral transforaminal epidural steroid injection at L2-L3 at her next visit.

    
    

13. On October 15, 2008, C.C.'s pre-operative pain level on a scale of one to ten, with ten being the worst and one being the least, was ten. Her post-operative pain level was seven, and her pain level at discharge was between nine and ten.

14. C.C. was scheduled for bilateral L2-3 transforaminal epidural steroid injections for October 22, 2008, and

    Dr. Diaz-Ramirez performed the scheduled injections on that date. C.C.'s pre-operative pain level on October 22, 2008,

    
    

    was seven. Her post-operative pain level was four, and her discharge pain level was between four and five.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2010).

16. The Department has the burden to establish the allegations in the Administrative Complaint by clear and convincing evidence. Dep't of Banking & Fin. v. Osborne Stern &

    Co., 670 So. 2d 932 (Fla. 1996). As stated by the Florida Supreme Court:

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    In re Henson, 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

    
    

    v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

17. The Department has alleged that Dr. Diaz-Ramirez violated section 456.072(1)(bb), which provides that disciplinary action may be taken for the following:

    Performing or attempting to perform health care services on the wrong patient, a wrong- site procedure, a wrong procedure, or an

    
    

    unauthorized procedure or a procedure that is medically unnecessary or otherwise unrelated to the patient's diagnosis or medical condition. For the purposes of this paragraph, performing or attempting to perform health care services includes the preparation of the patient.

    
    

18. The Department alleged in the Administrative Complaint that Dr. Diaz-Ramirez violated section 456.072(1)(bb), in the following ways:

    1. By performing a wrong-site procedure on Patient C.C. by performing a sacroiliac injection, when a bilateral L2-3 transforaminal epidural steroid injection had been ordered;

       
       

    2. By performing a wrong procedure on Patient C.C. by performing a sacroiliac injection when a bilateral L2-3 transforaminal epidural steroid injection had been ordered.

       
       

19. The evidence is clear that on October 15, 2008, Dr. Diaz-Ramirez did not perform the procedure that she had ordered on October 7, 2008. The evidence is not clear and convincing that the procedure that she performed was a wrong

procedure or a wrong-site procedure. Dr. Diaz-Ramirez examined

C.C. before the procedure on October 15, 2008, and found that C.C.'s pain had moved from the right to the left and had increased. Based on her examination and discussion with C.C., it was Dr. Diaz-Ramirez's opinion that a sacroiliac joint injection was the appropriate treatment for C.C. on that day. No evidence was presented to rebut this opinion. C.C. was aware

that a sacroiliac joint injection was to be performed and consented to that procedure. Thus, the Department has failed to establish by clear and convincing evidence that Dr. Diaz- Ramirez violated section 456.072(1)(bb).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Diaz-Ramirez did not violate section 456.072(1)(bb) and dismissing the Administrative Complaint.

DONE AND ENTERED this 16th day of February, 2011, in Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2011.

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida Statutes are to the 2008 version.

2/ The discharge instructions, which contained the orders for the bilateral L2-3 transforaminal epidural steroid injections,

did have a note for a sacroiliac joint injection which had been crossed through. Dr. Diaz-Ramirez stated that the note was a reminder to herself that at some point a sacroiliac joint injection should probably be done.

COPIES FURNISHED:

Yolonda Y. Green, Esquire Diane K. Kiesling, Esquire Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-1701

Carol Ann Kalish, Esquire Williams, Parker, Harrison

Dietz & Getzen

200 South Orange Avenue Sarasota, Florida 34236

E. Renee Alsobrook, Acting General Counsel Department of Health

4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701

Larry McPherson, Jr., JD, Executive Director Board of Medicine

Department of Health 4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

R.S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 10-009316PL

Orders for Case No: 10-009316PL