vs.
JOHN G. BENNETT, M.D.,
Respondent.
Case No. 15-2318PL
On June 30, 2015, a disputed-fact hearing was held in this case in Sarasota, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings (DOAH).
For Petitioner: Jack F. Wise, Esquire
Yolonda Y. Green, Esquire Department of Health Prosecution Services Unit
Steven D. Brownlee, Esquire Chapman Law Group
The issue in this case is whether the Board of Medicine should discipline the Respondent's license on charges that he
committed medical malpractice in violation of section 458.331(1)(t), Florida Statutes (2012), in his treatment of patient H.S. on December 1, 2012. (All statutory and rule references are to those in effect on December 1, 2012.)
The Petitioner, Department of Health (DOH), Board of Medicine, filed a two-count Amended Administrative Complaint against the Respondent, John G. Bennett, M.D., charging him in Count I with committing medical malpractice in violation of section 458.331(1)(t) and in Count II with violating Florida Administrative Code Rule 64B8-9.014, the Board's rule on Standards for Telemedicine Prescribing Practice, in his treatment of patient H.S. on December 1, 2012. The Respondent answered and requested a disputed-fact hearing. The matter was referred to
DOAH.
and was given leave to file a Second Amended Administrative Complaint charging only medical malpractice. The Respondent moved to dismiss the Second Amended Administrative Complaint based on the dismissal of the rule violation charge with prejudice.
At the hearing on June 30, the motion to dismiss the Second Amended Administrative Complaint was denied. The parties' counter-motions to exclude the testimony of each other's expert
ophthalmologist were granted on the ground that they could not testify on the standard of care because the Respondent was a general practitioner, not an ophthalmologist.
DOH called three witnesses, who were cross-examined by counsel for the Respondent: the patient, H.S.; the Respondent; and DOH's expert, Eugene Crouch, M.D. Petitioner's Exhibits 1 through 6 and 8 through 10 were received in evidence. The Respondent had a copy of rule 64B8-9.014 admitted in evidence.
A Transcript of the final hearing was filed on July 7, and the parties filed proposed recommended orders (PROs). The Respondent filed a supplement to its PRO that included a motion to strike the Petitioner's PRO as untimely. The Petitioner responded in opposition to the motion to strike and counter-moved to strike the Respondent's supplemental PRO. The Respondent's motion to strike has no merit and is denied. The Petitioner's motion to strike has merit and is granted. The timely PROs filed by the parties have been considered in the preparation of this
Recommended Order.
The Respondent, John G. Bennett, M.D., is a licensed physician in the State of Florida, having been issued license ME 48950. His only prior discipline was in 1988 for violations
not charged in this case; it resulted in two years of probation.
In December 2012, the Respondent was a general practitioner working part-time for an entity called Doctors Housecalls Limited (Doctors Housecalls), which provided concierge medical care to visitors to the Miami area residing short-term in area hotels and other rental properties. When requested by a resident, the concierge would contact Doctors Housecalls by telephone and relay pertinent contact information. Doctors Housecalls would telephone a physician on its staff and relay the contact information. The physician would telephone the patient or visit the patient to initiate a doctor-patient relationship. Usually, telephone contact would result in a subsequent in-person visit with the patient. The patient would pay by cash, credit card, or insurance. Medicare and Medicaid were not accepted.
The Respondent testified that on December 1, 2012, while he was either driving to dinner or already at a local restaurant, he received a call from Doctors Housecalls on his cell phone. He was given contact information for H.S. The Respondent used his cell phone to call H.S. and establish a doctor-patient relationship.
The patient testified that his eyes had become irritated during a business trip to Miami Beach in December 2012. He thought he might have gotten suntan lotion in his eyes while at poolside. He called his optometrist in Pennsylvania and was given a prescription over the phone, which he filled and started
taking. Although the patient could not recall the name of the medication, the evidence was clear that it was Tobramycin, an antibiotic eye drop. His Pennsylvania optometrist told the patient to go to an emergency room or get care from a local doctor if his eyes got worse. When the patient's eye irritation got worse, H.S. called the concierge where he was staying and eventually talked to the Respondent on the telephone.
The patient testified that he reported the essentials of his eye problem to the Respondent--namely, that his were irritated from the suntan lotion and from the Tobramycin prescription. He testified that, in response, the Respondent prescribed a different eye drop and told him to follow up with his primary care doctor when he returned to Pennsylvania. The eye drop the Respondent prescribed was Predforte (prednisolone acetate), which is a steroid and a legend drug.
The brief interaction between the Respondent and the patient was entirely by telephone. The Respondent did not see the patient in person and did not see any patient medical records or any photograph or other image of the patient's eye.
The Respondent testified that initially he asked to see the patient to examine him to get a clearer picture of the patient's medical problem. He testified that the patient did not want to be seen. He testified that he then told the patient he would have to go to an emergency room and that the patient
refused. He testified that he then asked some more questions and decided he could prescribe Predforte without seeing the patient. The patient denied that the Respondent asked for an in-person examination, told him to go to an emergency room, or asked him additional questions to ascertain if he could prescribe Predforte without seeing the patient.
Specifically, the patient denied that the Respondent asked him if he wore contact lenses. (He normally wore them but took them out when his eyes became irritated.) He denied that the Respondent asked him if he had a history of cataracts, any recent eye surgeries, or ocular herpes. The Respondent testified that he asked these questions but did not notate the questions or the patient's negative answers in his only medical records from the encounter (which included a brief description of the presenting problems and the treatment plan in his telephone consultation form and descriptions of the diagnosis or nature of illness or injury and of the procedures, services, or supplies provided on his insurance claim form).
The Respondent's testimony on these points does not ring true. While the emergency room would have taken time, the Respondent testified that he was very close to where the patient was staying when he placed the telephone call and could have gotten there to see the patient very quickly. Also, the Respondent's testimony on this point was inconsistent with the
position he was taking at the hearing that the standard of care did not require him to see the patient before prescribing the Predforte.
Taken as a whole, the evidence was clear and convincing that the Respondent did not insist on seeing patient H.S. and did not ask those specific questions before prescribing Predforte.
At most, the Respondent may have asked a general question whether the patient had any other eye problems and gotten a negative answer.
The patient's eyes got better, and he did not seek any further medical attention in Florida. About a week after his return to Pennsylvania, he followed up with his primary care doctor. By then, his eyes were better. It is not clear from the evidence why the patient's eyes got better.
DOH's expert, Dr. Eugene Crouch, testified that the Respondent's treatment of H.S. was below the standard of care. He testified that it was necessary to physically examine the patient's eye, front and back using an ophthalmoscope. He testified that it also was necessary for the Respondent to get a complete medical history, including when the problem started, the circumstances that might have caused it, if the patient was taking medication that could have caused it, if there were vision changes, if the patient smoked cigarettes, if the patient was seen for the problem by another treating physician, if there was
drainage coming from the eye, if the patient wore contact lenses, or if the patient had cataracts, glaucoma, recent eye surgeries, or ocular herpes. Although it is rare, ruling out ocular herpes is especially important because the steroid prescribed by the Respondent "blunts the immune system, so the virus would take over, which is potentially devastating [and] an absolute crisis at that point."
Dr. Crouch testified convincingly that the eye is "tricky" for a general practitioner to diagnose and treat, and the consequences of falling below the standard of care can be serious. Contrary to the Respondent's suggestion, he did not meet the standard of care by prescribing Predforte and telling the patient to seek further treatment if the problem got worse.
Dr. Crouch did not review the Board's rule 64B8-9.014 on the standards for telemedicine prescribing practice, or determine whether the Respondent complied with it, before reaching his opinion on the standard of care. Neither the rule nor the Respondent's compliance with it affected Dr. Crouch's opinion. Regardless of that and other efforts to impeach
Dr. Crouch's credibility, Dr. Crouch's opinion is accepted and is clear and convincing evidence that the Respondent did not meet the standard of care in his treatment of patient H.S.
The Respondent takes the position that DOH is estopped from charging him with medical malpractice under section
458.331(1)(t) because it waived that charge by agreeing to dismiss, with prejudice, the count charging a violation of rule 64B8-9.014. To the contrary, it is clear that DOH had no intention of waiving the medical malpractice charge.
CONCLUSIONS OF LAW
Section 458.331(1)(t)1., Florida Statutes (2012), made the following a ground for license discipline:
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.
Section 456.50(1)(g) defined "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." Paragraph (e) of that statute stated: "'Level of care, skill, and treatment recognized in general law related to health care licensure' means the standard of care specified in s. 766.102."
Section 766.102(1) stated: "The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers." There is no merit to the Respondent's argument
that section 766.102(1) did not apply because it (also) applied to actions to recover damages.
The Respondent takes the position that rule 64B8-9.014, the Standards for Telemedicine Prescribing Practice, established the exclusive definition of the standard of care that applies in this case because it was promulgated by the Board under the authority of section 458.331(1)(v). That statute authorized the Board to "establish by rule standards of practice and standards of care for particular practice settings, including, but not limited to, education and training, equipment and supplies, medications including anesthetics, assistance of and delegation to other personnel, transfer agreements, sterilization, records, performance of complex or multiple procedures, informed consent, and policy and procedure manuals."
Rule 64B8-9.014(5) stated that "telemedicine" included prescribing legend drugs to patients through telephonic communication. Contrary to the Respondent's contention, it did not supersede the standard of care set out in sections 458.331(1)(t), 456.50(1)(g), and 766.102(1).
Section (1) of rule 64B8-9.014 stated that prescribing medications based solely on an electronic medical questionnaire was below the standard of care. That section (which is the only section in the rule that mentions standard of care) was inapplicable, as no electronic medical questionnaire was used by
the Respondent. Even if it were applicable, it did not state that prescribing medications on anything more than an electronic medical questionnaire automatically meets the standard of care.
Section (2) of the rule prohibited a physician from providing treatment recommendations, including issuing prescriptions using electronic or other means, unless: (a) there was a "documented patient evaluation, including history and physical examination to establish the diagnosis for which any legend drug was prescribed"; (b) the physician discussed treatment options and the risks and benefits of treatment; and
(c) contemporaneous, adequate medical records were maintained.
It did not state that any treatment recommendation or prescription automatically meets the standard of care if subsections (a), (b), and (c) are met.
In support of his contention that the rule superseded the statutes on the standard of care, the Respondent cites Adams
v. Culver, 111 So. 2d 665 (Fla. 1959). That decision (and many
others) held that a special statute covering a particular subject matter controls over a general statutory provision covering the same and other subjects in general terms. That case law is inapplicable in this case, where the Respondent seeks to have a rule control over statutes and the statutes cover the particular subject matter--namely, the standard of care.
As further support of his contention that the rule superseded the statutes on the standard of care, the Respondent cites Ortiz v. Department of Health, Board of Medicine,
882 So. 2d 402 (Fla. 4th DCA 2004). Ortiz held that the Board exceeded its authority by adopting a rule requiring that anesthesia used in certain surgeries performed in an office setting be administered only under the direct supervision of an anesthesiologist, when there was a statute specifically prohibiting the use of rulemaking authority for that purpose.
Id. at 406. The Ortiz ruling also has no application to the
facts of this case.
The Respondent's contention that the rule superseded the statutes on the standard of care has no merit and is rejected. It would make no sense to say that medical malpractice is a violation that can be disciplined if committed in person, but not if done over the telephone.
DOH must prove its charge of medical malpractice by clear and convincing evidence. See Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v.
Turlington, 510 So. 2d 292 (Fla. 1987). The Supreme Court has stated:
Clear 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 a 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)).
The evidence was clear and convincing that the Respondent committed medical malpractice, as defined by the pertinent statutes, in his treatment of patient H.S. on December 1, 2012.
The Respondent takes the position that DOH is estopped from charging him with medical malpractice under section 458.331(1)(t), because it waived that charge by agreeing to dismiss, with prejudice, the count charging a violation of the Board's rule 64B8-9.014.
It is not clear why DOH dismissed the rule violation charge with prejudice, notwithstanding the clear evidence that neither the Respondent nor any other physician physically examined patient H.S. Regardless, it is clear that DOH had no intention to waive the medical malpractice charge.
The Respondent contends that the dismissal of the rule violation charge, with prejudice, operated to estop DOH from proceeding with the medical malpractice charge. In support of that argument, he cites three cases: Lomelo v. American Oil
Company, 256 So. 2d 9 (Fla. 4th DCA 1971); Levine v. Gonzalez,
901 So. 2d 969, 974 (Fla. 4th DCA 2005); and State v. Clifton,
905 So. 2d 172 (Fla. 5th DCA 2005). None of those decisions is on point.
In Lomelo, a judgment of dismissal rendered upon a stipulation of the parties was held to be binding on the parties and to operate as a bar to another action on the same cause. No stipulation or judgment of dismissal has been entered in this case.
In Levine, a plaintiff had dismissed a charging lien, with prejudice, and later moved to foreclose the lien. The court held that the lower court erred by granting the motion to foreclose the lien after it had been dismissed with prejudice.
In this case, DOH continuously maintained its charge of medical malpractice.
In State v. Clifton, the state amended a four-count criminal information after the expiration of the speedy trial rule by re-alleging the original four counts and adding a fifth count. All counts arose out of the same criminal conduct or episode. The trial court granted the defendant's motion to discharge the amended information under the speedy trial rule. On appeal, the court affirmed as to the fifth count and reversed as to the four original counts. Id. at 178-9. This holding has no application to the facts of this case.
Rule 64B8-8.001 contains the penalty guidelines for violations. The range of discipline for a violation of section 458.331(1)(t)1. is from one year of probation to revocation or denial of licensure and an administrative fine from $1,000 to
$10,000. Section (3) of the rule authorizes the Board to deviate from the routine range of penalties upon consideration of aggravating and mitigating factors listed (a) through (i).
Factor (a), the extent of exposure of a patient or the public to injury or potential injury, physical or otherwise, is applicable and somewhat aggravating. Factor (b), the Respondent's legal status (no restraints), is neutral or slightly mitigating.
Factor (c), the number of counts or separate offenses (one), is neutral or slightly mitigating. Factor (d), number of previous identical offenses (none), is neutral or slightly mitigating.
Factor (d), the Respondent's disciplinary history (one offense in 1988 punished by two years of probation), is neutral or slightly aggravating. Factor (f), pecuniary benefit or self-gain inuring to the Respondent (minimal), is neutral or slightly aggravating. Factor (g), involvement of controlled substances (none), is neutral or slightly mitigating. Factor (h), failure to keep and/or produce the medical records in a standard of care violation case (records minimal, but kept and produced), is neutral or slightly aggravating. Factor (i), any other relevant mitigating factors (many years of practice without discipline),
is slightly mitigating. Taking all these factors into consideration, the Board should not deviate from the routine range of discipline for the proven violation.
Section 456.072(4) provided that the Board shall assess costs related to an investigation and prosecution, in addition to other discipline imposed for violating a practice act.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding the Respondent guilty of one count of medical malpractice in violation of section 458.331(1)(t), fining him
$5,000, placing him on one year of indirect supervision probation with appropriate terms and conditions, and assessing costs of investigation and prosecution.
DONE AND ENTERED this 29th day of July, 2015, in Tallahassee, Leon County, Florida.
J. LAWRENCE JOHNSTON Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2015.
Steven D. Brownlee, Esquire Chapman Law Group
Jack F. Wise, Esquire Department of Health Prosecution Services Unit
Yolonda Y. Green, Esquire Department of Health Prosecution Services Unit
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.
