STATE OF FLORIDA DEPARTMENT OF HEALTH DEPARTMENT OF HEALTH, ) ) PETITIONER, ) ) . ) ) DOH Case No. 2001-02272 v ) ) . ) ALFRED OCTAVIUS BONATI,M.D., _) ) RESPONDENT. _) oo ) ADMINISTRATIVE COMPLAINT eee ee COMES NOW the Petitioner, Department of Health, hereinafter referred to as “Petitioner,” and files this Administrative Complaint before the Board of Medicine against Alfred Octavius Bonati, MLD., hereinafter referred to as “Respondent,” and alleges: 1. Effective July 1, 1997, Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes, “and Chapter 458, Florida Statutes. Pursuant to the provisions of Section 20.43(3), Florida | Statutes, the Petitioner has.contracted with the Agency for Health Care Administration to provide : consumer complaint, investigative, and prosecutorial services required by the Division of . Medical Quality Assurance, councils, or boards, as appropriate. 2. Respondent is and has been at all times material hereto a licensed physician in the state of Florida, having been issued license number ME 0038324. Respondent’s last known address is 7315 Hudson Avenue, Hudson, Florida 34667-1158. 3. Respondent practices in the area of orthopedic surgery and is not board certified. 4, A discectomy is the removal of all or part of an intervertebral disc, the masses of fibrocartilage found between adjacent surfaces of most of the vertebrae. Percutaneous discectomy is the procedure whereby the discectomy is performed through an openin ginthe skin - through which instruments are inserted and guided either by flouroscopy or by direct visualization with a fiberoptic scope inserted through the opening. Unless otherwise specified, references to the discectomy procedure performed by Respondent should be interpreted as a percutaneous procedure. With few exceptions, Respondent's choice of procedure in treating the foregoing referenced patients was percutaneous discectomy. 5. A laminectomy is the surgical removal or excision of the vertebral lamina, the thin bony plate covering the vertebrae. 6. Spinal disc surgery, including percutaneous discectomy procedures, is an appropriate treatment only when the correct indications are manifested in the patient. These indications include pain which is radicular (radiates into an extremity), with extremity (arm or leg) pain greater than back pain, a failure to improve with an appropriate period of conservative management, an | imaging study, such | as s Magnetic: resonance Imaging (MRD, or computed fhich reveals abnormal pathology. and a correlation between the patient’s clinical symptoms sand the level of the. abnormal pathology. 7. Although practiced only by a small number of physicians in Florida, percutaneous lumbar discectomy, when performed properly and for appropriate indications, comports with the appropriate standard of care. 8. Practiced by only a few physicians nationwide, percutaneous cervical discectomy is not a generally accepted procedure, and it does not comport with the appropriate standard of care in Florida. 9. Discography is the radiographic visualization of intervertebral disc spaces by injection of contrast media into the disc. It is employed as a provocative diagnostic procedure in confirming the appropriate level for disc surgery by reproducing the pain complained of by the - patient, and, presumptively, to determine the structural integrity of the disc. Discography performed at a single level as part of an operative procedure of the spine to reproduce pain to confirm the appropriate level for surgery does not comport with the appropriate standard of care. - 10. Thermography is the process of measuring the regional temperature of a body part or organ. Use of thermography in general, and specifically as a means of determining the need for or success of any spinal surgery, is not reliable and does not comport with the appropriate standard of care. . 11. The use of unnecessary diagnostic te tests not reasonably calculated to assist health care providers i in the diagnosis and treatment of a patient is prohibited. Section 766. 111, Florida Statutes, provides, in pertinent part: (1) No health care provider licensed pursuant to chapter 458 ... 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 [, Florida Statutes] .°. : FACTS PERTAINING TO PATIENT DS. _12. On or about May 6, 1991, Patient D.S., a then forty-nine (49) year old male, presented to Respondent complaining of a thirty (30) year history of intermittent back pain. Respondent documented that Patient D.S. had been successfully treated with physical therapy in . the past. Respondent diagnosed Patient D.S. with radiculopathy of L5-S1 with back pain. Respondent’s plan for Patient D.S. included an MRI, physical performance testing and physical therapy. 13. On or about May 6, 1991, Patient D.S. underwent an MRI, which was interpreted as revealing: Schmorl’s nodes at several levels; a three (3) millimeter posterior disc bulge at L3- 4; a four (4) millimeter central posterior disc bulge at L4-5; and a six (6) millimeter posterior disc bulge at L5-S1, greater at the right. 14. On or about May 8, 1991, Respondent documented that Patient D.S. had symptoms relating to both L4-5 and L5-S1. Although Respondent did not document a diagnosis | for Patient D.S. on this date, Respondent indicated a Plan 2 as lumbar discectomy and lumbar foramenostomy at L5-S1 on the right, with the additional “pathology at 14-5 to be treated © conservatively until after evaluating the patient’s postoperative progress, 15. A scheduling note dated May 8, 1991, indicates that Patient D.S. was scheduled for a discogram, discectomy and foramenectomy at L5-S1 on the right to be performed on June | 3, 1991. According toa ‘second scheduling note, also dated May 8, 1991, Patient D.S. was scheduled for a discogram, discectomy and foramenectomy at LA-5 on the right to be performed on June 17, 1991. 16. Ina history and physical for Patient D.S. dictated on or about May 31, 1991, Respondent documented Patient D.S.’s complaints of low back pain radiating to the right leg. Respondent also documented the following: Patient D.S. reported a history of successful physical therapy treatment prior to presenting to Respondent; Patient D.S. experienced symptoms relating to L4-5 on the right and at L5-S1 on the right; and a diagnosis of internal disc disrupture. | Respondent recommended a discogram, lumbar discectomy and lumbar foramenostomy at L5-S1 right. 17. On or about June 3, 1991, Respondent performed the following procedures on’ Patient D.S. at L5-S1 on the right: thermography, discogram, discectomy and foramenostomy. Respondent dictated separate operative reports for each procedure performed. According to both the discectomy and foramenostomy operative reports, Patient D.S.’s extremity pain was completely removed at the conclusion of the procedure. 18. On or about June 4, 1991, Patient DS. presented to Respondent for a post- operative visit. According to Respondent’s medical record, Patient D.S. was doing well without complications. 19. On or about June 4, 1991, only one day postoperatively, Respondent again documented performing surgery on Patient D.S. at L5-S1, this time at the left, including: thermography, discogram, and foramenostomy. Respondent dictated separate operative reports for each procedure performed. According to Respondent, Patient D.S.’s extremity pain was completely removed by the conclusion of the procedure. Respondent failed to document a medical justification for performing these procedures at L5-S1 on the left. 20. On or ‘about June 6, 1991, Patient D.S. again presented to Respondent. Respondent asserted that Patient D.S.’s continued complaint of back pain related to the L4-5 lumbar level. Respondent recoramended a discectomy and foramenostomy at LA-5 right. 21. Patient D.S.’s medical records contain three (3) history and physicals dictated by Respondent on or about June 14, 1991. These three (3) history and physicals documented conflicting medical information regarding Patient D.S., including but not limited to, medications, the level of pathology, and the surgery to be performed. 22. On or about June 17, 1991, Respondent performed the following procedures on Patient D.S.: discectomy at L4-5 on the right; lumbar foramenectomy at L5-S1 on the right; discogram at LA-5 on the right; thermography at L4-5 and L5-S1 on the right. In separate operative reports dated June 17, 1991, Respondent documented conflicting information regarding the procedures performed on or about June 17, 1991. Respondent dictated separate operative reports for each procedure performed. According to Respondent, Patient D.S.’s lower extremity pain was completely removed by the conclusion of the procedure. 23. Postoperatively on or about June 18, 1991, Respondent documented that Patient D.S. experienced a large amount of discomfort. Respondent ordered a CT scan of Patient D.S.’s lumbar spine. According to the CT report, the CT scan revealed: degenerative disc disease most severe at L5-Si ; air in ‘the disc ‘space and thecal sac at L5-S1; bilateral foraminal narrowing at LS. Si; spinal stenosis Posterior t to L5; and disc bulges at L3-4, L4-5 and L5-S1, with no evidence of disc herniation. No disc fragment was noted. Ono or about June 20, 1991, however, Respondent interpreted this cT scan as revealing a right-sided disc fragment. 24. In a history and physical dictated on or about June 21, 1991, Respondent documented that Patient D.S. complained of low back pain radiating to the right leg. Respondent also noted that Patient D.S.’s symptoms now related to LA-5 right and to L5-S1 right. Respondent diagnosed internal disc disrupture and recommended a discogram, lumbar discectomy and lumbar foramenostomy. Respondent did not document the level at which the surgery was recommended, nor were the results of the most recent CT scan included in the history and physical. 25. On or about June 24, 1991, Respondent performed the following procedures on Patient D.S. at L5-S1 right: thermography, discogram, discectomy and foramenostomy. Respondent dictated separate operative reports for each procedure. According to Respondent, Patient D.S.’s lower extremity pain was completely removed by the conclusion of the procedure. 26. In or about September of 1991, Patient D.S. sought treatment from another physician in Wisconsin. 27. Respondent failed to keep a medical record justifying the course of treatment of Patient D.S., in one or more of the following ways, in that the record: failed to document a medical necessity for surgeries 0 or diagnostic Procedures performed by Respondent during the period of in or about June 1991; ‘failed to document an appropriate plan of treatment for Patient D.S., in that the medical record failed to establish a correlation between the ongoing clinical symptoms of Patient D.S. and the imaging studies of May 6, 1991, and June 18, 1991, and/or contains conflicting operative and examination 1 results for Patient D. S; failed to document the change in operative side from the right side of L5-S1 to the left side for the surgery performed on _. or about J une 4, 1991; and contains conflicting medical information in Patient D.S.’s history and i physical performed on or about June 14, 1991. 28. Respondent failed to practice medicine with an acceptable level of care in the treatment of Patient D.S., in one or more of the following ways: by performing multiple spinal surgeries and diagnostic procedures on Patient D.S. during the time period of in or about June 1991, which were not necessary or medically indicated; by repeatedly performing additional surgeries during the aforementioned time period without waiting an appropriate period for recovery by Patient D.S., and which were not necessary or medically indicated; ‘by inappropriately using operative thermography as a means of determining the existence of © pathology in the spine, as well as the success of surgical procedures in treating the pathology; by using single level operative discography as a means of reproducing pain for the purpose of -- verifying the appropriate level for spine surgery; by performing surgery on Patient D.S. at L5-S1 left on or about June 4, 1991, when the intended surgical location was L5-S1 on the right; and: by forming different opinions of the patient regarding the need for surgery based on identical radiographic and physical findings. 29. Respondent inappropriately billed for services provided to Patient D.S. in one or more of the following ways: on or about June 3, 1991, Respondent billed for a bilateral lumbar discectomy, when the discectomy procedure was conducted only on one (1) side; on or about June 3, 1991, Respondent billed for a foramenectomy procedure with a transpedicular approach, when the Procedure was not performed with a transpedicular approach; on or about June 17, 1991, Respondent billed: for a bilateral lumbar discectomy, when the discectomy procedure was conducted only on one “@ side; on or about June 17, 1991, Respondent billed for a foramenectomy procedure with a transpedicular approach, when the procedure was not performed with a transpedicular approach; on or about June 24, 1991, Respondent billed for a bilateral lumbar discectomy, when the discectomy Procedure was conducted only on one (1) side; ‘and o on or wr about June 4, 1991, ‘Respondent billed for 2 a foramenectomy procedure with a transpedicular approach, when the procedure was not performed with a transpedicular approach. Respondent further ‘ngppropriately employed and billed for thermography, an unnecessary diagnostic test not reasonably calculated to assist his diagnosis and treatment of Patient D.S. during the period of in or about June 1991. 30. Respondent violated Section 766.111, Florida Statutes, by ordering, procuring, providing, or administering unnecessary diagnostic tests not reasonably calculated to assist him in arriving at a diagnosis and treatment of the patient’s condition, in that Respondent employed thermography on Patient D.S., as both a preoperative test to allegedly confirm pathology, and as a postoperative test to allegedly confirm the success of the surgical procedures. COUNT ONE 31. Petitioner realleges and incorporates paragraphs one (1) through thirty (30), as if fully set forth herein this Count One. 32. Respondent exercised influence on Patient D.S. to exploit him for financial gain, in one or more of the following ways: on or about June 3, 1991, Respondent billed for a bilateral lumbar discectomy, when the discectomy procedure was conducted only on one (1) side; on or about June 3, 1991, Respondent billed for a foramenectomy procedure with a transpedicular approach, when the procedure was not performed with a transpedicular approach; on or about June 17, 1991, Respondent billed for a bilateral lumbar discectomy, when the discectomy ‘procedure was conducted only on one (1) side; on or about June 17, 1991, Respondent billed for a foramenectomy procedure with a rranspedicular approach, when the procedure was not performed with a transpedicular approach; on or about June 24, 1991, Respondent billed for a bilateral lumbar discectomy, when the discectomy procedure was conducted only on one (1) side; on or about June 24, 1991, ‘Respondent billed for a foramenectomy procedure with a transpedicular approach, when the procedure was not performed with a wanspediculr approach; and Respondent inappropriately employed and billed for thermography, an unnecessary diagnostic test not reasonably calculated to assist his diagnosis and treatment of Patient D.S. during the period of in or about June 1991. 33. Based on the foregoing, Respondent violated Section 458.331(1)(n), Florida Statutes, by 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. COUNT TWO 34. Petitioner realleges and incorporates paragraphs one (1) through thirty (30) and thirty-two (32), as if fully set forth herein this Count Two. 35. Respondent failed to perform a statutory or legal obligation placed upon a licensed physician, in that Respondent employed thermography, an unnecessary diagnostic test not reasonably calculated to assist his diagnosis and treatment of Patient D.S. during the period of in or about June 1991, in violation of Section 766.111, Florida Statutes. 36. Based on the foregoing, Respondent violated Section 458.331(1)(g), Florida Statutes, by failing to perform any statutory or legal obligation placed upon a licensed physician. wok ae oon - 37. Petitioner realleges and incorporates paragraphs one (1) through thirty (30), ~ thirty-two (32) and thirty-five (35), as if fully set forth herein this Count Three. 38. Respondent failed to keep written medical records justifying the course of treatment of Patient D.S., due to one or more of the following, in that the record: failed to document a medical necessity for surgeries and diagnostic procedures performed by Respondent during the period of in or about June 1991; failed to document an appropriate plan of treatment 10 for Patient D.S.; failed to document the change in operative side from the right side of L5-SI to the left side for the surgery performed on or about June 4, 1991; and contains conflicting medical information in Patient D.S.’s history and physical performed on or about June 14, 1991. 39. Based on the foregoing, Respondent violated Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of" drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations. COUNT FOUR 40. Petitioner realleges and incorporates paragraphs one (1) through thirty (30), thicty-two (32), thirty-five (35), and thirty-eight (38), as if fully set forth herein this Count Four. 41. Respondent failed to practice medicine within the appropriate standard of care in regard to Patient D.S., due to one or more of the following: by performing multiple spinal surgeries and diagnostic procedures on Patient D.S. during the time period of in or about June "1991, which were not necessary or medically indicated; by repeatedly performing additional surgeries during the aforementioned time Period without waiting an appropriate period for recovery by Patient D. S., and which were not “necessary or medically indicated; by inappropriately using operative - thermography as a means of determining the existence of pathology in the spine, as well as the success of surgical procedures in treating the pathology; by using single level operative discography as a means of reproducing pain for the purpose of verifying the appropriate level for spine surgery; by performing surgery on Patient D.S. at L5-S1 left on or about June 4, 1991, when the intended surgical location was L5-S1 on the right; and il by forming different opinions of the patient regarding the need for surgery based on identical radiographic and physical findings. 42. Based on the foregoing, Respondent violated Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is © recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. FACTS PERTAINING TO PATIENT R.D. 43. | Onor about February 20, 1991, Patient R.D., a then fifty-five (55) year old male, was involved in an automobile accident that left him with neck, left shoulder, and lower back pain. R.D.’s history included a laminectomy in 1973. 44. Patient R.D. presented to R.S. Lamba, M.D., in or about February 1991, who ordered x-rays and MRI scans of R.D.’s cervical and lumbar spine. The lumbar MRI was interpreted on or about February 27, 1991, and revealed a deformity at the L5/S1 level secondary to scarring from the previous laminectomy, and either recurrent disc herniation or scarring at the 1A-5 level. The cervical MRI scan, interpreted on or about March 5, 1991, specifically revealed no evidence of intervertebral disc protrusion at C4-5, with a cervical spondylosis noted at C4-5 ~ with slight retrolisthesis at C4 with respect to C5. . 45. On or about March 15, 1991, Respondent performed an examination of Patient RD., including the cervical spine, and reviewed the cervical MRI from March 5, 1991. Respondent concluded that the cervical MRI revealed spurring at C4 and bulging discs at C3-4, 4-5, and C5-6. He further noted bilateral radiculopathy of the C3-4, C45, and C5-6 nerve roots. 12 46. Respondent also examined the lumbar spine and reviewed the MRI of February 27, 1991. Respondent interpreted the MRI as revealing a bulging disc at L4-5, with minimal bulging at L3-4 and L5/S1. His impression was radiculopathy at L5 left and S1 right with back pain. Respondent also examined and reviewed x-rays of the left shoulder. His impression was - possible rotator cuff tear, and painful and frozen shoulder. Respondent ordered MRI’s of the shoulder and lumbar spine. 47. On or about May 28, 1991, Respondent again reviewed the patient’s condition, along with the March 5, 1991 cervical MRI. According to Respondent, the same March 5, 1991 cervical MRI now revealed bulging discs only at C3-4 and C4-5, with radiculopathy affecting only the C3-4 and C4-5 levels. Respondent recommended, based on the cervical findings, discectomy at C4-5 on the left. 48. Also on or about May 28, 1991, Respondent recommended diagnostic arthroscopy of the left shoulder with possible laser arthroscopy. Respondent also commented regarding a bulge at the L4-5 level, indicating that a repeat MRI would be necessary “for more information.” 49. On or about June 5, 1991, Respondent performed a history and physical wherein “he described various physical findings, including bilateral arm pain, worse on the left, strength loss at C2 through Cs levels, and radicular pain attributed to the C5 nerve root. Respondent again referenced the March 5, 1991 MRI as revealing bulging discs at C3-4 and CA-5. Respondent diagnosed internal disc “disrupture and i indicated a plan ‘for cervical discogram and discectomy. - 50. Onor about June 6, 1991, Respondent performed a discogram and discectomy on Patient R.D. at the C4-5 level for the diagnosis of disc bulging with radiculopathy. Respondent 13 claimed that Patient R.D.’s extremity pain was totally removed at the conclusion of the procedure. 51. On or about June 5, 1991, a lumbar MRI was interpreted as revealing a 4 mm central disc herniation of the 4" lumbar vertebra, as well as spondylolisthesis, degenerative disc disease, and osteoarthritic spurring. On or about June 13, 1991, Respondent reviewed the MRI report and asserted that the patient’s clinical symptoms now related to L5 left. Respondent — recommended foramenectomy and discectomy at L4-S left. 52. On or about June 28, 1991, Respondent performed a history and physical on Patient R.D., including the review of an MRI of the shoulder of May 21, 1991. The MRI revealed no specific tear to the rotator cuff, and specifically found the supraspinatus tendon to be unremarkable. On or about July 1, 1991, Respondent performed a diagnostic and a surgical arthroscopy on Patient R.D.’s left shoulder. 53. Respondent asserted that the diagnostic arthroscopy revealed the following conditions: frozen shoulder, capsulitis; synovitis; tom labrum; torn bicipital tendon; and tear of the rotator cuff involving the supraspinatus. Respondent asserted that during the surgery of on or about July 1, 1991, several procedures were performed, including debridement and repair of the torn labrum, torn n bicipital tendon, and tor supraspinatus tendon using the laser. 54. On or about August 29, 1991, a subsequent MRI of the cervical spine was interpreted as revealing the following: a grade IV impression into the cord at C4-5, grade II impressions into the thecal space at C3-4 and C5-6, and a possible granulomatous or infectious process at C4 and C5, and extensive bony changes with subluxation of C5 anterior on C4. 55. On or about September 23, 1991, Respondent again recommended surgery for ‘Patient R:D. based on the asserted physical findings, which were noted to be the same as before 14 the surgery of June 6, 1991, and upon the MRI of August 29, 1991. Specifically, Respondent recommended discectomy and foramenectomy at C3-4 and C4-5 left. Respondent also referenced further unspecified “pathology which may require additional surgery.” 56. Patient R.D. did not have the surgeries recommended by Respondent. He - continued to be symptomatic, and on or about February 10, 1992, he presented to a subsequent orthopedic surgeon, Michael D. Slomka, M.D., for evaluation. Dr. Slomka noted the patient as having post laminectomy syndrome in the lumbar spine, and spondylolisthesis at L4-5. More seriously, he noted the “progressive collapse of C4,” and asserted that he could not rule out an infection of the disc space introduced by the previous surgery by Respondent. Dr. Slomka concluded that Patient R.D had been “significantly over treated,” by Respondent, and characterized the additional surgical procedures recommended by Respondent as “excessive and unnecessary.” 57. Patient R.D. was subsequently referred to a neurosurgeon, who on or about April 19, 1993, performed an anterior microsurgical decompressive discectomy with osteophytectomy, foramenotomies, and allograft interbody arthrodesis (fusion) of C4-5 and C5-6. Patient R.D. thereafter had excellent results. 58. Respondent failed to prepare a medical record justifying the course of treatment . of Patient RD. in one or-more of the following ways, i in that the record: failed to document a medica necessity for the surgeries or 2 diagnostic procedures performed by Respondent during the period of in or about March 1991 through ‘September 1991; failed to document an appropriate ‘or Patient RD, in that the record failed to establish a ‘correlation between the ongoing clinical symptoms of the patient and the imaging studies of February 27, 1991, March 5, 15 o 1991, May 21, 1991, June 5, 1991, and August 29, 1991, and/or contains conflicting operative and examination results. 59. Respondent failed to practice medicine with an acceptable level of care in the treatment of Patient R.D., in one or more of the following ways: by performing surgeries and diagnostic procedures during the period of on or about March 1991 through September 1991 which were not necessary or medically indicated, by performing surgery and repeat surgery - without adequate conservative care; by performing surgery on the concave side of Patient R.D.’s spine; by using single level operative discography as a means of reproducing pain for the purpose of verifying the appropriate level for spinal surgery; by performing Percutaneous cervical discectomy on Patient R.D. on or about June 6, 1991; and by forming different impressions of the patient regarding the need for surgery based on identical radiographic and physical findings. COUNT FIVE 60. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), and forty-three (43) through fifty-nine (59), as if fully set forth herein this Count Five. 61. Respondent failed to keep written medical records justifying the course of treatment of Patient R.D., due to one or more of the followings in that the record: failed to document a medical necessity for the surgeries or ; diagnostic ‘procedures performed by ; Respondent during the period of ir in or about March 1991 through September 1991; and failed to document an appropriate plan of treatment for Patient R.D. 62. Based on the foregoing, Respondent violated Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records justifying the course of treatment of the 16 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. - COUNT SIX 63. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), forty-three (43) through fifty-nine (59), and sixty-one (61), as if fully set forth herein this Count Six. 64. _ Respondent failed to practice medicine within the appropriate standard of care in regard to Patient R.D., due to one or more of the following: by performing surgeries and diagnostic procedures during the period of on or about March 1991 through September 1991, which were not necessary or medically indicated; by performing surgery and repeat surgery without adequate conservative care; by performing surgery on the concave side of Patient R.D.’s spine; by using single level operative discography as a means of reproducing pain for the purpose of verifying the appropriate level for spinal surgery; by performing percutaneous cervical discectomy on Patient R.D. on or about June 6, 1991; and by forming different “impressions of the patient regarding the need for surgery based on identical radiographic and physical findings. 65. Based on the foregoing, Respondent violated Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. 17 o FACTS PERTAINING TO PATIENT P.R. 66. On or about July 20, 1991, Patient P.R., a then twenty-one (21) year old male, presented to All Orthopedic Associates for evaluation of a two (2) year history of back pain. During this evaluation, Patient P.R.’s straight leg test was negative. A working diagnosis for ~ Patient P.R. was lumbago, with attempt to rule out a disc herniation. 67. On or about August 27, 1991, Patient P.R. presented to Respondent’s facility complaining of back pain. According to the initial evaluation, Patient P.R. injured his lower back approximately ten (10) years prior, and had experienced intermittent pain for which he had received chiropractic treatment. According to the initial evaluation, an MRI of on or about August 20, 1991, was interpreted as revealing bulging discs at L4-5 and L5-S1, but the evaluation noted that this MRI was of inadequate quality for an accurate evaluation. Another MRI, physical performance testing, and physical therapy were ordered. 68. On or about September 9, 1991, an MRI was interpreted as revealing multiple Schmorl’s nodes (the herniation of the intervertebral disc into the end plate of the vertebral body), a two (2) millimeter posterior disc bulge at L1-2, a four (4) millimeter posterior disc bulge at 4 and 45, and a seven (7) millimeter posterior disc bulge at L5-S1. 69. ; ‘On or - about ‘September 12, 1991, ‘Respondent documented that Patient P.R. complained of low back. pain radiating to the left les. During the same visit, Respondent - diagnosed multiple disc bulges with $1 radiculopathy on the left, and recommended a lumbar discectomy and lumbar annulorrhaphy at L5-S1 on the left. 70. In a history and physical dictated on or about September 20, 1991, Respondent documented that Patient P.R. complained of low back pain radiating to the left leg. Respondent also documented that Patient P.R. experienced symptoms relating to L5-S1 on the left. 18 Respondent diagnosed Patient P.R. with internal disc disrupture, and recommended a discogram, lumbar discectomy and lumbar annulorrhaphy. 71. On or about September 23, 1991, Respondent performed a discogram, discectomy, annulorrhaphy, and thermography on Patient P.R. at L5-S1 on the left. Respondent - dictated separate operative reports for each procedure performed. According to Respondent, Patient P.R.’s extremity pain was completely removed by the conclusion of the surgery. Respondent billed, however, for a bilateral discectomy and for an annulorrhaphy with a transpedicular approach. 72. On or about October I and 8, 1991, Patient P.R. reported back and buttocks pain with some radiating pain to the left leg. On or about November 5, 1991, Respondent documented Patient P.R.’s continued complaint of back pain radiating to the left leg which he described as back pain with S1 radiculopathy on the left. Respondent indicated a plan for Patient P.R. of observation for three (3) months. 73. On or about December 23, 1991, Respondent documented P.R. as experiencing symptoms relating to L5-S1 on the left. He diagnosed back pain with radiculopathy; and _recommended conservative treatment, including physical therapy and anti-inflammatories, with a recheck in one (1) month. On or about December 23, 1991, Patient P.R. underwent another MRI, which was interpreted as revealing a one (1) millimeter disc protrusion at L2-3, and a six (6) millimeter posterior disc protrusion at L5-S1. , 74. Onor about January 10, 1992, Respondent recorded Patient P.R. as experiencing symptoms relating to L4-5 and L5-S1, both on the left for which he recommended lumbar discectomy and lumbar annulorthaphy at L5-S1 on the left, and possibly the same procedure at 14-5 on the left. 19 75. On or about January 16, 1992, Respondent performed a history and physical, documenting Patient P.R.’s complaint of recurrence of low back pain radiating to the left leg. Respondent described Patient PR’s symptoms as relating to L4-5 and LS-S1, both on the left. Respondent diagnosed internal disc disrupture, and recommended lumbar discogram, and lumbar discectomy and annulorrhaphy. 76. In a separate history and physical dictated on or about January 16, 1992, . Respondent documented that Patient P.R. complained of reoccurrence of low back pain radiating to the left leg. Respondent again described Patient P.R.’s symptoms as relating to L4-5 and LS- S1 on the left, diagnosed internal disc disrupture, and recommended lumbar discogram, discectomy and annulorrhaphy. In this history and physical of on or about January 16, 1992, Respondent described having performed a surgery that had not yet occurred: We then performed a lumbar discectomy and annulorrhaphy at the LAILS level on the left on 1/17/92. He did fine after this surgical procedure for approximately two weeks, at which time, he felt a “pop” in his back and began to experience a recurrence of the same discomfort which he was experiencing prior to his last surgical procedure. We will proceed with further treatment to the patient’s lumbar spine at this time. 77. According to operative reports dated on or about January 17, 1992, Respondent performed the following procedures on Patient PR. at L4-5 on the left: discogram, discectomy with a transpedicular approach, thermography and annulorrhaphy. Again, Respondent dictated separate operative reports for each procedure performed. According to Respondent, Patient P.R.’s extremity pain was completely removed by the conclusion of the procedure. However, according to post-operative nurses’ notes at approximately 11:10 a.m., 1:00 p.m. and 4:00 p.m. on or about January 17, 1992, Patient P.R. complained of pain in the left buttocks area radiating down the leg. 20 78. On or about February 4, 1992, Respondent again documented, as he had in the history and physical of on or about January 16, 1992, that Patient P.R. had experienced recurrence of pain down the leg following a recent “pop” in his back. Respondent described the location of Patient P.R.’s pain as along the pathway of the L5 nerve root. Respondent ordered another MRI for Patient P.R., which was performed the same day. This MRI was compared to the MRI performed on or about December 23, 1991, and was interpreted as revealing no significant changes from the previous MRI. 79. On or about February 4, 1992, Respondent documented Patient P.R.’s symptoms as located at L4-5 and L5-S1 left with an impression of back pain with L5 and S1 radiculopathy on the left. Respondent recommended discectomy at L5-S1, describing the symptoms as more pronounced at that level, with a plan for unspecified “additional pathology” to be treated conservatively until evaluation of the patient’s progress following surgery. 80. According to a scheduling note dated on or about February 4, 1992, Patient P.R. was scheduled for a discogram, discectomy and annulorrhaphy at left L5-S1 on February 5, 1992. 81. On or about February 5, 1992, Respondent performed a discogram, discectomy with a transpedicular approach, annulorrhaphy, and thermography, all at L4-5 on the left, rather than at the previously planned level of L5/S1. Again, Respondent dictated separate operative reports for each procedure performed during this single operative occasion. According to the Respondent, Patient P.R.’s extremity pain was completely removed at the conclusion of the procedure. Respondent did ‘not document an explanation for the ‘change in the operative level from the planned L5-S1 to L4-5. 21 82. Patient P.R.’s discogram report dated on or about February 5, 1992, states: “A lateral film labeled L5-S1 disc shows a needle in the central portion of the disc space with small amount of contrast assuming an irregular configuration with questionable slight posterior leakage strongly suggestive of herniated nucleus pulposus.” The report does not discuss the LA4-5 level. 83. Although the consent for surgery signed by Patient P.R. on or about February 5, 1992, indicates the operative level as L4-5, the operative level appears to have been altered. 84. Patient P.R. continued to be symptomatic, and on or about April 7, 1992, he presented to an orthopedic surgeon, Clinton Davis, M.D. Dr. Davis ordered a myelogram, which he interpreted as essentially normal. Dr. Davis evaluated Patient P.R. and found no definite objective evidence of radiculopathy. Based upon this evaluation, Dr. Davis determined that Patient P.R. was not an appropriate candidate for lumbar surgery. 85. On or about April 27, 1992, Patient P.R. presented to a neurosurgeon, Casey Gaines, M.D., who evaluated Patient P.R. Dr. Gaines determined that Patient P.R. did not have a clear-cut herniation or nerve root compromise, and thus was not appropriate for surgery. 86. On or about December 1, 1992, Patient P.R. retumed to Respondent complaining of severe back pain radiating down both legs. Respondent documented an impression of Patient P.R. as back pain with LS and S1 radiculopathy bilaterally, worse on the left. Respondent recommended lumbar laminectomy at L4-5 and L5-S1, both on the left. 87. Respondent failed to keep a medical record justifying the course of treatment of Patient P.R., in one or more of the following ways, in that the record: failed to document a medical necessity for surgeries or diagnostic procedures performed by Respondent during the time period of in or about September 1991 through February 1992; failed to document an appropriate plan of treatment for Patient P.R., in that the medical record failed to establish a 22 correlation between the ongoing clinical symptoms of Patient P.R. and the imaging studies: of September 9, 1991, December 23, 1991, and February 4, 1992, and/or contains conflicting operative and examination results for Patient P.R.; failed to document the change in operative level plan from L5-S1 to LA-5 on or about February 5, 1992; contains a history and physical dictated by Respondent on or about January 16, 1992, which references a surgery already having been performed on or about January 17, 1992; and falsely described the lumbar discectomies of. on or about January 17, 1992, and February 5, 1992, as having been performed with a transpedicular approach. 88. Respondent failed to practice medicine with an acceptable level of care in the treatment of Patient P.R., in one or more of the following ways: by performing multiple spinal surgeries and diagnostic procedures on Patient P.R. during the time period of in or about September 1991 through February 1992, which were not necessary or medically indicated, by repeatedly performing additional surgeries during the aforementioned time period without waiting an appropriate period for recovery by Patient P.R., and which were not necessary or medically indicated; by inappropriately using operative thermography as a means of determining the existence of pathology in the spine, as well as the success of surgical procedures in treating the pathology; by inappropriately using single level operative discography as a means of reproducing pain for the purpose of verifying the appropriate level for spine surgery; by forming different impressions of the Patient regarding the need for surgery based on identical radiographic and physical findings; and by performing surgery on Patient P.R. at L4-5 on February 5, 1992, when the intended level of surgery was L5-S1. 89. Respondent inappropriately employed and billed for thermography, an unnecessary diagnostic test not reasonably calculated to assist his diagnosis and treatment of 23 Patient P.R. during the period of on or about of in or about September 1991 through February 1992 - 90. Respondent falsely described performing a discectomy with a transpedicular approach on Patient P.R. during surgeries of on or about on or about January 19, 1992, and © February 5, 1992, in that Respondent did not employ a transpedicular approach in the performance of these surgeries. 91. Respondent inappropriately billed for a bilateral discectomy and annulorrhaphy with a transpedicular approach during the surgery of on or about September 23, 1991. Respondent inappropriately billed for discectomy with a transpedicular approach as performed on Patient P.R. during surgeries of on or about on or about January 19, 1992, and February 5, 1992, in that Respondent did not employ transpedicular approach in the performance of these surgeries. | 92. Respondent violated Section 766.111, Florida Statutes, by ordering, procuring, providing, or administering unnecessary diagnostic tests not reasonably calculated to assist him in arriving at a diagnosis and treatment of the patient’s condition, in that Respondent employed ’ thermography on Patient P.R., as both a preoperative test to allegedly confirm pathology, and as a postoperative test to allegedly confirm the success of the surgical procedures. COUNT SEVEN 93. Petitioner realleges and incorporates paragraphs one (1) through eleven a 1), and sixty-six (66) through ninety-two (92), as if fully set forth herein this Count Seven. . 94. Respondent exercised influence on Patient P.R. to exploit him for financial gain due to one or more of the following, in that Respondent: inappropriately employed and billed for thermography, an unnecessary diagnostic test not reasonably calculated to assist his diagnosis and treatment of Patient P.R. during the period of on or about of in or about September 1991 through February 1992; inappropriately billed for a bilateral discectomy and annulorrhaphy with a transpedicular approach during the surgery of on or about September 23, 1991; and inappropriately billed for discectomy with a transpedicular approach as performed on Patient P.R. during surgeries of on or about January 19, 1992, and February 5, 1992, in that Respondent. did not employ transpedicular approach in the performance of these surgeries. 95. Based on the foregoing, Respondent violated Section 458.331(1)(n), Florida Statutes, by 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. COUNT EIGHT 96. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), sixty-six (66) through ninety-two (92), and ninety-four (94), as if fully set forth herein this Count Eight. 97. Respondent failed to perform a statutory or legal obligation placed upon a licensed physician, in that Respondent employed thermography, an unnecessary diagnostic test, on Patient P.R., in violation of Section 766.111, Florida Statutes. 98. Based on the foregoing, Respondent has violated Section 458.331(1)(g), Florida Statutes, by failing to perform any statutory or legal obligation placed upon a licensed physician. 25 COUNT NINE 99. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), sixty-six (66) through ninety-two (92), ninety-four (94), and ninety-seven (97), as if fully set forth herein this Count Nine. , 100. Respondent made deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employed a trick or scheme in the practice of medicine when he ~ falsely described performing a discectomy with a transpedicular approach on Patient P.R. during surgeries of on or about January 19, 1992, and February 5, 1992, in that Respondent did not employ a transpedicular approach in the performance of these surgeries. 101. Based on the foregoing, Respondent violated Section 458.331(1)(k), Florida Statutes, by making deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick or scheme in the practice of medicine. COUNT TEN 102. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), sinty-six (66) through ninety-two (92), ninety-four (94), ninety-seven (97), and one hundred (100), as if fully set forth herein this Count Ten. 103. Respondent failed to © practice medicine within the appropriate standard of care in regard t to , Patient PR., in on one or more of the following ways: ‘by performing multiple spinal surgeries: and diagnostic procedures on Patient P.R. during the time period of in or about September 1991 through February 1992, which were not necessary or medically indicated, by repeatedly performing additional surgeries during the aforementioned time period without waiting an appropriate period for recovery by Patient P.R., and which were not necessary or 26 : medically indicated; by inappropriately using operative thermography as a means of determining the existence of pathology in the spine, as well as the success of surgical procedures in treating the pathology; by inappropriately using single level operative discography as a means of reproducing pain for the purpose of verifying the appropriate level for spine surgery; by forming different impressions of the patient regarding the need for surgery based on identical radiographic and physical findings; and by performing surgery on Patient P.R. at L4-5 on or about February 5, 1992, when the intended level of surgery was L5-S1. 104. Based on the foregoing, Respondent violated Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. COUNT ELEVEN 105. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), sixty-six (66) through ninety-two (92), ninety-four (94), ninety-seven (97), one hundred (100) and one hundred three (103), as if fully set forth herein this Count Eleven. 106. Respondent failed to keep written medical records justifying the course of treatment of Patient P.R., in one or more of the following ways, in that the record: failed to document a medical necessity for surgeries or diagnostic procedures performed by Respondent during the time period of in or about September 1991 through February 1992; failed to document an appropriate plan of treatment for Patient P.R.; failed to document the change in operative level plan from L5-S1 to LA-5 on or about February 5, 1992; contains a history and physical dictated by Respondent on or about January 16, 1992, which references a surgery already having 27 o been performed on or about January 17, 1992; and falsely described the lumbar discectomies of on or about January 17, 1992, and February 5, 1992, as having been performed with .a transpedicular approach. . 107. Based on the foregoing, Respondent violated Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of. drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations. FACTS PERTAINING TO PATIENT F.C. 108. In or about September of 1993, Patient F.C., a then seventy-eight (78) year old female, presented to Respondent. Respondent documented that Patient F.C. complained of pain in the right lumbar and thoracic spine, pain in the right scapula, right thigh, hip and calf, accompanied by numbness and pain in both feet. Respondent also documented that the patient’s pain in the right lumbar area radiated through the suprapubic area, causing a change in Patient F.C.’s bowel habits. Respondent did not document a specific medical history of conservative treatment for Patient F.C.’s symptoms. Respondent did not order or recommend conservative treatment for Patient FC. 109. On or about Septernber 9, 1993, Respondent ordered various testing, including but not limited to, x-rays and MRI scans. The x-rays revealed the presence of scoliosis. The MRI was interpreted as revealing: L2-3 five (5) millimeter central herniation extending bilaterally impinging upon the foramina; L3-4 four (4) millimeter central herniation extending left, L4-5 two Q) millimeter central herniation; L5-S1 three 2 (3) ‘millimeter central herniation; ‘and disc degeneration. at 12-3. 28 110. On or about September 20, 1993, Respondent diagnosed Patient F.C. with back pain with L3 radiculopathy on the right, and recommended right L2-3 lumbar discectomy. 111. Inahistory and physical dictated for Patient F.C. on or about September 27, 1993, Respondent documented Patient F.C.’s complaint as pain radiating from the back to the hip across the right thigh to the knee. He diagnosed internal disc disrupture at 12-3 on the nght; and recommended lumbar discogram at L2-3 on the right, and lumbar discectomy with. annulorrhaphy at L2-3 on the right. Respondent also documented that scoliosis was noted on Patient F.C.’s x-rays. 112. On or about October 7, 1993, Respondent performed the following procedures on Patient F.C.’s lumbar spine, at the right side of the L2-3 level: an operative thermogram; discogram; discectomy with transpedicular approach; and an annulorrhaphy. According to Respondent, Patient’s F.C.’s extremity pain was completely removed at the conclusion of the procedures. 113. During post-operative visits on or about October 15, 18, 21 and 28, 1993, Patient F.C. complained of continuing aching sensation in her right thigh. On or about October 28, 1993, another MRI was ordered, which revealed the following: L2-3 six (6) millimeter posterior Protrusion which lateralizes bilaterally, 13-4 three (3) millimeter posterior protrusion which lateralizes slightly bilaterally; 14-5 three @) millimeter posterior protrusion which lateralizes slightly bilaterally; L5-S1 three @) millimeter posterior protrusion centrally; and advanced disc degeneration at L1-2 and 123. 114. In a history and physical for Patient ‘F.C. of on or about November 2, 1993, Respondent diagnosed internal disc danprue at 2 3 on the right, and recommended revision 29 lumbar discectomy at L2-3 on the right. On or about November 2, 1993, Patient F.C. was scheduled for a revision lumbar discectomy at L2-3 on the right for November 10, 1993. 115. Also on or about November 2, 1993, Respondent documented an impression of Patient F.C. as back pain with L3 radiculopathy on the right, and a plan for revision lumbar discectomy at L2-3 on the right. 116. On or about November 10, 1993, Respondent performed the following procedures’ on Patient F.C. at L2-3 on the left: discogram; lumbar discectomy with transpedicular approach; lumbar annulorrhaphy; and thermography. Respondent did not document in Patient F.C.’s operative report a justification for changing the intended side of the L2-3 surgery from the right to the left. According to Respondent, Patient F.C.’s lower extremity pain was completely removed by the conclusion of the procedures. 117. On or about November 11, 1993, Patient F.C. presented for a post-operative visit with continued complaint of pain in her right thigh. Patient F.C. was noted as status post lumbar discectomy at L2-3 on the left. 118. On or about November 18, 1993, Patient F.C. presented for a post-operative visit and her medical record contains the following narrative: Apparently, as I piece this together, she was to have a lumbar discectomy, L2/L3 on the right side, but this was changed the day of surgery, since her pain was greatest in the L3 nerve root on the-left side, rather than the right. The patient is not a good medical historian and doesn’t recall the details. 119. On or about November 20, 1993, Patient F.C. was transported to an emergency room by ambulance with complaints of severe right thigh pain. Patient F.C. was admitted to the hospital, but was later transferred to Respondent’s facility. 30 120. In a history and physical for Patient FC. of on or about November 23, 1993, Respondent diagnosed internal disc disrupture at L3-4 on the right, and recommended lumbar discogram at L3-4 on the right and lumbar discectomy with annulorrhaphy at L3-4 on the right. 121. On or about November 23, 1993, Patient F.C. underwent a lumbar myelogram, which was interpreted as revealing mild bulging discs at levels L1 through L5, but no nerve root amputation. 122. On or about November 24, 1993, Respondent performed the following procedures at L3-4 on the right: discogram, lumbar discectomy with transpedicular approach, lumbar annulorrhaphy and thermography. According to Respondent, Patient F.C.’s lower extremity pain was completely removed by the conclusion of the procedures. 123. On or about January 26, 1994, Patient F.C. presented to another orthopedic surgeon, who eventually performed a lumbar decompressive laminectomy at levels L2, L3 and LA. 124. Respondent failed to keep a medical record justifying the course of treatment of Patient F.C., in one or more of the following ways, in that the record: failed to document a medical necessity for surgeries or diagnostic procedures performed by Respondent during the time period of in or about October 1993 through November 1993; failed to document an appropriate plan of treatment for Patient F.C., in that the medical record failed to establish a correlation between the ongoing clinical symptoms of Patient F.C. and the imaging studies of on or about September 9, 1993, October 28, 1993, and November 23, 1993, and/or contains conflicting operative and examination results for Patient F.C.; failed to document the change in operative side from the right side of L2-3 to the left side for the surgery performed on or about November 10, 1993; and falsely described the lumbar discectomies of on or about October 7, 31 “baw 1993, November 10, 1993, and November 23, 1993, as having been performed with a transpedicular approach. 125. Respondent failed to practice medicine with an acceptable level of care in the treatment of Patient F.C., in one or more of the following ways: by performing multiple spinal surgeries and diagnostic procedures on Patient F.C. during the time period of in or about October 1993 through November 1993, which were not necessary or medically indicated; by repeatedly ° performing additional surgeries during the aforementioned time period without waiting an appropriate period for recovery Patient F.C., and which were not necessary or medical indicated; by inappropriately using operative thermography as a means of determining the existence of pathology in the spine, as well as the success of surgical procedures in treating the pathology; by using single level operative discography as a means of reproducing pain for the purpose of verifying the appropriate level for spine surgery; by forming different impressions of the patient — based on identical radiographic and physical findings; by performing surgery on. Patient F.C., even though Patient F.C. had scoliosis; and by performing surgery on Patient F.C. at left L2-3 on November 10, 1993, when the intended surgical location was L2-3 on the right. 126. Respondent inappropriately employed and billed for thermography, an unnecessary diagnostic test not reasonably calculated to assist his diagnosis and treatment of Patient F.C. during the period of in or about October 1993 through November 1993. 127. Respondent falsely described performing a discectomy with a transpedicular approach on Patient F.C. during surgeries of ‘on or about October 7, 1993, November 10, 1993, and November 23, 1993, in that Respondent did not employ a transpedicular approach in the performance of these surgeries. 32 128. Respondent inappropriately billed for discectomy with a transpedicular approach as performed on Patient F.C. during surgeries of on or about October 7, 1993, November 10, 1993, and November 23, 1993, in that Respondent did not employ transpedicular approach in the performance of these surgeries. . 129. Respondent violated Section 766.111, Florida Statutes, by ordering, procuring, providing, or administering unnecessary diagnostic tests not reasonably calculated to assist him in arriving at a diagnosis and treatment of the patient’s condition, in that Respondent employed thermography on Patient F.C., as both a preoperative test to allegedly confirm pathology, and as a postoperative test to allegedly confirm the success of the surgical procedures. COUNT TWELVE 130. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), and one hundred eight (108) through one hundred twenty-nine (129), as if fully set forth herein this Count Twelve. 131. Respondent exercised influence on Patient F.C. to exploit her for financial gain " due to one or more of the following, in that Respondent: employed and billed for thermography, an unnecessary diagnostic test not reasonably calculated to assist his diagnosis and treatment of Patient FC. during the period of in or about October 1993 through November 1993; and inappropriately billed for discectomy with a transpedicular approach as performed on Patient F.C. during surgeries of on or about October_7, 1993, November 10, 1993, and November 23, 1993, in that Respondent did not employ transpedicular approach in the performance of these surgeries. 132. Based on the foregoing, Respondent violated Section 458.331(1)(n), Florida Statutes, by 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. COUNT THIRTEEN 133. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), one hundred eight (108) through one hundred twenty-nine (129), and one hundred thirty-one (131), as if fully set forth herein this Count Thirteen. . 134. Respondent failed to perform a statutory or legal obligation placed upon a licensed physician, in that he employed thermography, an unnecessary diagnostic test not reasonably calculated to assist his diagnosis and treatment of Patient F.C. during the period of in or about October 1993 through November 1993, in violation of Section 766.111, Florida Statutes. . 135. Based on the foregoing, Respondent violated Section 458.331(1)(g), Florida Statutes, by failing to perform any statutory or legal obligation placed upon a licensed physician. COUNT FOURTEEN 136. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), one hundred eight (108) through one hundred twenty-nine (129), one hundred thirty-one (131), and one hundred thirty-four (134), as if fully set forth herein this Count Fourteen. 137. Respondent made deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employed a trick or scheme in the practice of medicine, when he 2 falsely described performing a discectomy with a transpedicular approach on Patient F.C. during surgeries of on or about October 7, 1993, November 10, 1993, and November 23, 1993, in that Respondent did not employ a transpedicular approach in the performance of these surgeries. 138. Based on the foregoing, Respondent violated Section 458.331(1)(k), Florida Statutes, by making deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick or scheme in the practice of medicine. COUNT FIFTEEN 139. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), one hundred eight (108) through one hundred twenty-nine (129), one hundred thirty-one (131), one hundred thirty-four (134), and one hundred thirty-seven (137), as if fully set forth herein this Count Fifteen. . 140. Respondent failed to keep written medical records justifying the course of treatment of Patient F.C., in one or more of the following ways, in that the record: failed to document a medical necessity for surgeries or diagnostic procedures performed by Respondent during the time period of in or about October 1993 through November 1993; failed to document an appropriate plan of treatment for Patient F.C; failed to document the change in operative side from the right side of L2-3 to the left side for the surgery performed on or about November 10, 1993; and falsely described the lumbar discectomies of on or about October 7, 1993, November 10, 1993, and November 23, 1993, as having been performed with a transpedicular approach. 141. Based on the foregoing, Respondent violated Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records justifying the course of treatment of the 35 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. COUNT SIXTEEN 142. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), one hundred eight (108) through one hundred twenty-nine (129), one hundred thirty-one (131), one . hundred thirty-four (134), one hundred thirty-seven (137), and one hundred forty (140), as if fully set forth herein this Count Sixteen. 143. Respondent failed to practice medicine within the appropriate standard of care in regard to Patient F.C., due to one or more of the following: by performing multiple spinal surgeries and diagnostic procedures on Patient F.C. during the time period of in or about October 1993 through November 1993, which were not necessary or medically indicated; by repeatedly performing additional surgeries during the aforementioned time period without waiting an appropriate period for recovery Patient F.C., and which were not necessary or medical indicated; by inappropriately using operative thermography as a means of determining the existence of pathology in the spine, as well as the success of surgical procedures in treating the pathology; by using single level operative discography as a means of reproducing pain for the purpose of verifying the appropriate level for spine surgery; by forming different impressions of the patient based on identical radiographic and physical findings; by performing surgery on Patient F.C., even though Patient F.C. had scoliosis; and by-performing surgery on Patient F.C. at left L2-3 on November 10, 1993, when the intended surgical location was L2-3 on the right. 144. Based on the foregoing, Respondent violated Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is 36 recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. ‘FACTS PERTAINING TO PATIENT LF. #1 145. On or about August 25, 1993, Patient LF.#1, a then thirty-nine (39) year old female, injured her back while pushing a vehicle. The patient saw a Dr. Hover who referred her to Respondent’s facility for orthopedic consultation. 146. On or about August 27, 1993, Patient L.F. #1 was examined by Donald Merkin, M.D., who performed an examination wherein the patient described pain in her lumbar area radiating into both lower extremities, but not present in the ankles, feet, or toes. ACT scan had been ordered, the results of which were not available. Dr. Merkin’s impression was bilateral . radiculopathy of the LS and S1 nerve roots, worse on the left, with back pain. He recommended physical performance testing, physical therapy, and a CT scan discussion with Respondent. 147. On or about August 27, 1993, the CT scan of the patient’s lumbar spine was interpreted as revealing 3 mm bilateral disc herniations at L3-4, and 4 mm bilateral disc herniations at L4-5. No nerve root compression or other abnormality was noted. 148. On or about September 2, 1993, Respondent performed a discogram, discectomy with transpedicular approach, annulorrhaphy, and thermogram at LA-5 left. Respondent asserted that Patient L.F.#1’s extremity pain was completely removed at the conclusion of the procedure. Patient L.F.#1, however, complained of both back and extremity pain immediately following the surgery of September 2, 1993. - 149. On or about September 10, 1993, Patient L.F.#1 again presented to Respondent’s facility with continued complaint of back and leg pain. The patient was admitted. A progress 37 note of September 13, 1993, indicated the patient’s pain had not only continued since the surgery of September 2, 1993, but had increased. 150, On or about September 15, 1993, a CT scan revealed bilateral bulges of 2-3 mm at L3-4 and 4 mm at L4-5, and a 2mm bulge at L5-S1. 151. On or about September 20, 1993, Respondent again performed surgery, including the following procedures, on Patient L.F.#1: discogram at L3-4 left and L4-5 left; discectomy via transpedicular approach at L4-5 left; annulorrhaphy L4-5 left; and thermography at L4-5 left. Respondent again asserted that the patient’s extremity pain was completely removed by the conclusion of the procedure. 152. Respondent asserted in his operative report of September 20, 1993, that the discograms at both L3-4 and LA-5 revealed intradiscal disc disrupture with contained disc material, and that the discograms at both L3-4 and LA-5 had produced pain which was “specific for the symptoms to be treated.” The report does not reflect the rationale for directing the discectomy, annulorrhaphy, and thermography specifically to L4-5 left only. Further, Respondent’s operative report description of the discogram findings contradicts the actual discogram report of September 20, 1993, in that the discogram report gives no mention of intradiscal disrupture as a finding, and specifically finds no extrusion of contrast material at the L3-4 level. 153. Also on or about September 20, 1993, Respondent completed a Lumbar Final - Diagnosis/Attestation Form, signed by Respondent, which indicated the patient had been found to have a non-contained disc, a ruptured annulus, and a ruptured ligament. This is contrary to Respondent’s operative report of the same date, which described as “contained” the discs at both 38 o 13-4 and L4-5. This form also references an MRI report, however, Patient L.F.#1 did not have an MRI. 154. Patient L.F.#1, contrary to Respondent’s operative report, experienced back and extremity pain immediately following the surgery of September 20, 1993. On or about September 26, 1993, she was again admitted to the hospital because of severe intractable pain. An orthopedic history and physical was performed indicating the patient had experienced no relief from the previous surgery. Respondent’s plan then was for laminectomy at L3-4 and L4-5 left to be performed on October 1, 1993. 155. On or about October 1, 1993, Respondent performed laminectomies at the L3-4 and ‘14-5 left levels of Patient L.F.#1’s spine. Respondent’s operative report for these procedures reports minimal blood loss, however, post-anesthesia records and nursing notes report a blood loss of 4,000cc requiring postoperative transfusion and a stay in the intensive care unit. Once again, Patient L.F. #1’s condition failed to improve postoperatively. 156. An orthopedic history and physical performed on or about October 27, 1993, indicated the patient had experienced no relief of her symptoms following the previous surgery, and that she was again being admitted, for revision bilateral laminectomies at L3-4 and L4-5, to be conducted on October 28, 1993. 157. On or about October 28, 1993, Respondent performed bilateral laminectomies at the L3-4 and L4-5 levels of Patient LF. #1’s spine. Respondent’s operative report for these procedures again notes minimal blood loss, but post-anesthesia records and nursing notes report a blood loss of 2,700cc. 39 # 158. Patient L.F. #1 continued to have back pain following Respondent’s fourth set of surgical procedures, and subsequently required additional surgery (by another physician) and a body cast in or about January and February, 1994, respectively. 159. Respondent failed to prepare a medical record justifying the course of treatment of Patient L.F.#1., in one or more of the following ways, in that the record: failed to document a medical necessity for the surgeries and diagnostic procedures performed by Respondent during - the period of on or about August 1993 through October 1993; failed to document an appropriate plan of treatment for Patient L.F.#1, in that the medical record failed to establish a correlation between the ongoing clinical symptoms of the patient and the imaging studies of on or about August 27 and September 15, 1993, and/or contains conflicting operative and examination results; falsely described lumbar discectomies in the surgeries performed on or about September 2 and 20, 1993, as having been performed with a transpedicular approach; and failed to document in his operative reports the excessive blood loss during the surgeries of on or about October 1 and 28, 1993; documented minimal blood loss during the surgeries of October 1 and 28, 1993, even though the blood loss was 4,000cc’s and 2700cc’s, respectively. 160. Respondent failed to practice medicine with an acceptable level of care in the treatment of L.F.#1, in one or more of the following ways: by performing multiple surgeries and diagnostic procedures during the period of in or about August 1993 through October 1993, which were not necessary and not medically indicated; by repeatedly performing additional surgeries during the aforementioned period without waiting an appropriate period for recovery by the patient, and which were not necessary or medically indicated; by inappropriately using operative thermography as a means of determining the existence of pathology in the spine, as well as the success of surgical procedures in treating that pathology; by inappropriately using single level operative discography as a means of reproducing pain for the purpose of verifying the appropriate level for spinal surgery; and by performing surgery October 1 and 28, 1993, which resulted in blood loss was 4,000cc’s and 2700cc’s, respectively; and by forming different impressions of the patient regarding the need for surgery based on identical radiographic and - physical findings. . 161. Respondent inappropriately employed and billed for thermography, an unnecessary diagnostic test not reasonably calculated to assist his diagnosis and treatment of Patient L.F.#1 during the period of in or about August 1993 through October 1993. 162. Respondent falsely described performing a discectomy with a transpedicular approach on Patient L.F.#1 during surgeries of on or about September 2 and 20, 1993, in that Respondent did not employ a transpedicular approach in the performance of these surgeries. 163. Respondent inappropriately billed for discectomy with a transpedicular approach as performed on Patient L.F.#1 during surgeries of on or about September 2 and 20, 1993, in that Respondent did not employ transpedicular approach in the performance of these surgeries. 164. Respondent violated Section 766.111, Florida Statutes, by ordering, procuring, providing, or administering unnecessary diagnostic tests not reasonably calculated to assist him in arriving at a diagnosis and treatment of the patient’s condition, in that Respondent employed thermography on Patient LF#l, as both a preoperative test to allegedly confirm pathology, and as a postoperative test to allegedly confirm the success of the surgical procedures. 41 COUNT SEVENTEEN 165. Petitioner realleges and incorporates paragraphs one (1) through eleven (l 1), and one hundred forty-five (145) through one hundred sixty: -four (164), as if fully set forth herein this Count.Seventeen. 166. Respondent exercised influence on Patient L.F.#1 to exploit him for financial gain due to one or more of the following, in that Respondent: inappropriately employed and billed for _ thermography, an unnecessary diagnostic test not reasonably calculated to assist his diagnosis and treatment of Patient L.F.#1 during the period of in or about August 1993 through October 1993; and inappropriately billed for discectomy with a transpedicular approach as performed on Patient L.F.#1 during surgeries of on or about September 2 and 20, 1993, in that Respondent did not.employ transpedicular approach in the performance of these surgeries. 167. Based on the foregoing, Respondent violated Section 458.331(1)(n), Florida Stafutes, by 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. COUNT EIGHTEEN 168. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), one hundred forty-five (145) through one hundred sixty-four (164), and one hundred sixty-six (166), as if fully set forth herein this Count Eighteen. 169. Respondent failed to perform a statutory or legal obligation placed upon a licensed physician, in that Respondent employed thermography, an unnecessary diagnostic test not reasonably calculated to assist his diagnosis and treatment of Patient L.F.#1, during the 42 period of in or about August 1993 through October 1993, in violation of Section 766.111, Florida Statutes. 170. Based on the foregoing, Respondent has violated Section 458.331(1)(g), Florida Statutes, by failing to perform any statutory or legal obligation placed upon a licensed physician. COUNT NINTEEN 171. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), one hundred forty-five (145) through one hundred sixty-four (164), one hundred sixty-six (166), and one hundred sixty-nine (169), as if fully set forth herein this Count Nineteen. 172. Respondent made deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employed a trick or scheme in the practice of medicine, when Respondent falsely described performing a discectomy with a transpedicular approach on Patient L.F.#1 during surgeries of on or about September 2 and 20, 1993, in that Respondent did not employ a transpedicular approach in the performance of these surgeries. 173. Based on the foregoing, Respondent violated Section 458.331(1)(k), Florida Statutes, by making deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick or scheme in the practice of medicine. COUNT TWENTY 174. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), one hundred forty-five (145) through one hundred sixty-four (164), one hundred sixty-six (166), one hundred sixty-nine (169), and one hundred seventy-two (172), as if fully set forth herein this Count Twenty. 43 a 175. Respondent’s medical records do not justify the course of treatment of Patient LF. #1, due to one or more of the following, in that the record: failed to document a medical necessity for the surgeries or diagnostic procedures performed by Respondent during the period of on or about August 1993 through October 1993; falsely described lumbar discectomies in the surgeries performed on or about September 2 and 20, 1993, as having been performed with a transpedicular approach; failed to document an appropriate plan of treatment for Patient L.F.#1; - and failed to document in his operative reports the excessive blood loss during the surgeries of on or about October 1 and 28, 1993; documented minimal blood loss during the surgeries of October 1 and 28, 1993, even though the blood loss was 4,000cc’s and 2700cc’s, respectively. - 176. Based on the foregoing, Respondent violated Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations. COUNT TWENTY-ONE 177. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), one hundred forty-five (145) through one hundred sixty-four (164), one hundred sixty-six (166), one hundred sixty-nine (169), one hundred seventy-two (172), and one hundred seventy-five (175), as if fully set forth herein this Count Twenty-one. 178. Respondent failed to practice medicine within the appropriate standard of care in regard to Patient L.F.#1, due to one or more of the following: by performing multiple surgeries and diagnostic procedures during the period of on or about August 1993 through October 1993, which were not necessary and not medically indicated; by repeatedly performing additional surgeries during the aforementioned period without waiting an appropriate period for recovery by the-patient, and which were not necessary or medically indicated; by inappropriately using — operative thermography as a means of determining the existence of pathology in the spine, as well as the success of surgical procedures in treating that pathology; by inappropriately using ~ single level operative discography as a means of reproducing pain for the purpose of verifying the appropriate level for spinal surgery; and by performing surgery on or about October 1 and 28, 1993, which resulted in blood loss was 4,000cc’s and 2700cc’s, respectively; and by forming different impressions of the patient regarding the need for surgery based on identical radiographic and physical findings. 179. Based on the foregoing, Respondent violated Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. FACTS PERTAINING TO PATIENT J.D. 180. On or about August 3, 1993, Patient J.D., a then fifty-five (55) year old female, presented to Respondent with complaints of constant back pain noted by Respondent to radiate into both the right and-left leg. J.D. had injured her back in 1979, undergone lumbar laminectomy in 1980, and had re-injured her back in or about March, 1989. Prior to seeing Respondent, Patient J.D. had undergone an MRI scan ordered by her chiropractor and performed on or about July 26, 1993. This MRI was interpreted as revealing a disc herniation at LA-5 right, a mild bulge at L3-4, and normal discs at L2-3 and L5/S1. 45 181. Respondent repeated the MRI scan of J.D.’s lumbar spine on or about August 11, 1993. In contrast to the MRI taken just two weeks previously, the August 11 MRI was interpreted as showing disc degeneration at L4-5 and L5/S1, an L3-4 left lateral herniation of 3-4 mm, an L4-5 stenosis and bilateral protrusion of 5 mm, and an L5/S1 protrusion of 2mm. X- rays were interpreted as revealing a compression fracture and moderate scoliosis concave to the left. On or about August 17, 1993, Respondent concluded the patient suffered back pain with bilateral L5 and S1 radiculopathy worse on the right, and recommended L4-5 discectomy “right central for the $1 nerve root on the right.” 182. On or about August 23, 1993, Respondent performed an orthopedic history and physical on Patient J.D., noting that the patient complained of bilateral radiating pain affecting the LS and S1 nerve roots, worse on the right. Respondent diagnosed internal disc disrupture at L4-5 right, and recommended discogram at L4-5 right and discectomy with annulorrhaphy L4-5 right central for the S1 nerve root on the right. 183. On or about August 30, 1993, Respondent performed a discogram, discectomy via transpedicular approach, annulorrhaphy and thermogram on Patient J.D. at L4-5 right level of her spine, the concave side of J.D.’s scoliosis. In the operative report of this date, Respondent asserted that J.D.’s lower extremity pain was completely removed immediately postoperatively. 184. Postoperative nursing notes of the same day reveal that, contrary to Respondent’s assertions, J. D. was in “excruciating” pain immediately postoperatively. 185. Patient J.D. was discharged on or about August 31, 1993. She presented to Respondent for her first postoperative visit on or about September 7, 1993, at which time she complained of continued severe back pain radiating to the leg. The patient was hospitalized for pain management and physical therapy. She continued to complain of pain during her hospital stay. 186. ACT scan of September 9, 1993 was interpreted as revealing a herniated disc at L4-5, a mild bulge at L3-4, and normal discs at the L2-3 and L5/S1 levels. On or about September 10, 1993, the patient was discharged with continued complaint of leg pain. 187. Patient J.D. subsequently underwent conservative treatment by other physicians. using injections of steroids into the epidural spaces of her spine, which resulted in an improvement of her condition. An MRI of on or about June 30, 1994, taken at Shands Hospital, was significant for the presence of postoperative scarring at L4-5, but did not reveal further pathology. , 188. Respondent failed to prepare a medical record justifying the course of treatment of Patient J.D., in one or more of the following ways, in that the record: failed to document a medical necessity for the surgeries or diagnostic procedures performed by Respondent during the period of in or about August 1993 through September 1993; failed to document an appropriate plan of treatment for Patient J.D., in that the medical record contains conflicting operative and examination results, and/or failed to establish a correlation between the ongoing clinical symptoms of the patient and the imaging studies of on or about August 11 and September 9, 1993; and falsely described the lumbar discectomy of on or about August 30, 1993, as having been performed with a transpedicular approach. 189. Respondent failed to practice-medicine with an acceptable level of care in the treatment of Patient J.D., in one or more of the following ways: by performing multiple surgical and diagnostic procedures during the period of in or about August 1993 through September 1993, which were not necessary and not medically indicated; by performing surgery on the 47 concave side of the patient’s scoliosis; by inappropriately using operative thermography as a means of determining the existence of pathology in the spine, as well as the success of surgical procedures in treating that pathology; by using single level operative discography as a means of reproducing pain for the purpose of verifying the appropriate level for spinal surgery; and by forming different impressions of the patient regarding the need for surgery based on identical radiographic and physical findings. 190. Respondent inappropriately employed and billed for thermography, an unnecessary diagnostic test not reasonably calculated to assist his diagnosis and treatment of Patient J.D. during the period of on or about August 1993 through September 1993. . 191. Respondent falsely described performing a discectomy with a transpedicular approach on Patient J.D. during the surgery of on or about August 30, 1993, in that Respondent did not employ a transpedicular approach in the performance of this surgery. 192. Respondent inappropriately billed for discectomy with a transpedicular approach as performed on Patient J.D. during the surgery of on or about August 30, 1993, in that Respondent did not employ transpedicular approach in the performance of this surgery. 193. Respondent violated Section 766.111, Florida Statutes, by ordering, procuring, Providing, or administering unnecessary diagnostic tests not reasonably calculated to assist him in arriving at a diagnosis and treatment of the patient’s condition, i in that Respondent employed ‘thermography on Patient J.D., as both a preoperative test to allegedly confirm pathology, and as a postoperative test to allegedly confirm the success of the surgical procedures. 48 COUNT TWENTY-TWO ‘194, Petitioner realleges and incorporates paragraphs one (1) through eleven (11), and one hundred eighty (180) through one hundred ninety-three (193), as if fully set forth herein this Count Twenty-two. 195. Respondent exercised influence on Patient J.D. to exploit her for financial gain due to one or more of the following, in that Respondent: inappropriately employed and billed for. thermography, an unnecessary diagnostic test not reasonably calculated to assist his diagnosis and treatment of Patient J.D. during the period of on or about August 1993 through September 1993; and inappropriately billed for discectomy with a transpedicular approach as performed on Patient J.D. during the surgery of on or about August 30, 1993, in that Respondent did not employ transpedicular approach in the performance of these surgeries. 196. Based on the foregoing, Respondent violated Section 458.331(1)(n), Florida: Statutes, by 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. COUNT TWENTY-THREE 197. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), one hundred eighty (180) through one hundred ninety-three (193), and one hundred ninety-five (195), as if fully set forth herein this Count Twenty-three. 198. Respondent failed to perform a statutory or legal obligation placed upon a licensed physician, in that Respondent employed thermography, an unnecessary diagnostic test not reasonably calculated to assist his diagnosis and treatment of Patient J.D., during the period 49 s of on or about August 1993 through September 1993, in violation of Section 766.111, Florida Statutes. 199. Based on the foregoing, Respondent violated Section 458.331(1)(g), Florida Statutes, by failing to perform any statutory or legal obli gation placed upon a licensed physician. COUNT TWENTY-FOUR 200. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), one hundred eighty (180) through one hundred ninety-three (193), one hundred ninety-five (195), and one hundred ninety-eight (198), as if fully set forth herein this Count Twenty-four. 201. Respondent made deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employed a trick or scheme in the practice of medicine, when Respondent falsely described performing a discectomy with a transpedicular approach on Patient J.D. during the surgery of on or about August 30, 1993, in that Respondent did not employ a transpedicular approach in the performance of this surgery. . 202. Based on the foregoing, Respondent violated Section 458.331(1)(k), Florida Statutes, by making deceptive, untrue, or fraudulent Tepresentations in or related to the practice of medicine or employing a trick or scheme in the practice of medicine. COUNT TWENTY: FIVE 203. Petitioner relleges and incorporates Paragraphs one (1) through eleven (11), one hundred eighty (180) through o one hundred ninety -three (193), one hundred ninety: -five (195), one hundred ninety-eight (198), and two ‘hundred ¢ one , (201), as if fully s¢ set 1 forth herein this Count Twenty-five. 50 204. Respondent failed to keep written medical records justifying the course of treatment of Patient J.D., due to one or more of the following, in that the record: failed to document a medical necessity for the surgeries or diagnostic procedures performed by Respondent during the period of in or about August 1993 through September 1993; falsely described the lumbar discectomy of on or about August 30, 1993, as having been performed with a transpedicular approach; and failed to document an appropriate plan of treatment for Patient JD. 205. Based on the foregoing, Respondent violated Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations. COUNT TWENTY-SIX 206. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), one hundred eighty (180) through one hundred ninety-three (193), one hundred ninety-five (195), one hundred ninety-eight (198), two hundred one (201), and two hundred four (204), as if fully set forth herein this Count Twenty-six. 207. Respondent failed to practice medicine within the appropriate standard of care in regard to Patient J.D, due to one or more of the following: by performing multiple surgical and diagnostic procedures during the period of in or about August 1993 through September 1993, which were not necessary and not medically indicated; by performing surgery on the concave side of the patient’s scoliosis; by inappropriately using operative thermography as a means of determining the existence of pathology in the spine, as well as the success of surgical procedures 31 in treating that pathology; by using single level operative discography as a means of reproducing pain for the purpose of verifying the appropriate level for spinal surgery; and by forming different impressions of the patient regarding the need for surgery based on identical radiographic and physical findings. 208. Based on the foregoing, Respondent violated Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. FACTS PERTAINING TO PATIENT E.D. 209. In or about May 1992, Patient E.D., a then forty (40) year old female, presented to Respondent with complaints of neck and shoulder pain, and extremity numbness. E.D. had been involved in an automobile accident on or about July 31, 1990, and had previously undergone lumbar spinal surgery and follow-up evaluation and treatment by a neurosurgeon following that accident. The previous treating neurosurgeon evaluated Patient E.D. and found no reason for additional surgery. . 210. Although Respondent initially noted only complaints of neck and shoulder pain, he notes thereafter in his initial consultation of May 21, 1992 that Patient E.D. also complains of “onset of back pain at time of impact,” despite no previous reference to back pain. Respondent also refers to an erroneous accident date of October 31, 1990, despite his initial note that the patient was involved in an accident in July 1990. 211. On or about May 28, 1992, an MRI was interpreted as revealing posterior disc protrusions at C4-5, C5-6, and C6-7, 2mm disc protrusions at L3-4 and L4-5, and a 5 mm protrusion at L5/S1, with greatest encroachment at L5/S1 ri ght. . 212. On or about June 11, 1992, Respondent indicated a plan to perform surgery at the C4-5 and L4-5 levels of Patient E.D.’s spine. 213. On or about June 12, 1992, Respondent scheduled, or caused to be scheduled, . Patient E.D. for surgery, including discectomy, discography, and foramenectomy at C4-5 Tight, to be conducted on June 18, 1992, for the diagnosis of internal disc disrupture. 214. On or about June 17, 1992, Respondent dictated an orthopedic history and physical indicating the patient was experiencing neck and bilateral arm pain affecting the C4-5 and C5-6 nerve roots, worse on the right. Respondent diagnosed internal disc disrupture and indicated a plan of cervical discogram, discectomy, and foramenectomy. Respondent did not indicate the level(s) of the intended surgery nor discuss the May 28, 1992 MRI results. 215. On or about June 18, 1992, Respondent performed discogram, discectomy, and foramenectomy at C4-5 right. The preoperative diagnosis was disc bulging with radiculopathy of the cs nerve Toot. _ Respondent noted that Patient E.D.’s extremity pain was completely relieved ; at the conclusion of the procedure. 216. On or about August 6, 1992, Respondent scheduled, or caused to be scheduled, be conducted on September 10, 1992, for the diagnosis of internal disc disrupture. 217. On or about September 2, 1992, Respondent dictated an orthopedic history and physical indicating the patient was experiencing neck and bilateral arm pain affecting the C6 nerve root. The physical examination findings are identical to that of June 17,-1992, except that 53 . for surgery, inclu ng discogram, discectomy, and foramenectomy at C56 right, to the Respondent now concludes that only the C6 nerve root is affected. ‘Respondent's diagnosis and plan are identical to that of June 17, 1992. Again, Respondent did not indicate the level(s) of the intended surgery nor discuss any MRI results. | 218. On or about September 10, 1992, Respondent performed discogram, discectomy, and foramenectomy at CS-6 right. The preoperative diagnosis was disc bulging with radiculopathy of the C6 nerve root. Respondent noted that Patient E.D.’s extremity pain was completely relieved at the conclusion of the procedure. 219. On or about September 22, 1992, Respondent scheduled, or caused to be scheduled, Patient E.D. for surgery including discogram, discectomy, and annulorrhaphy at 14-5 left, to be conducted on October 14, 1992 for the diagnosis of internal disc disrupture. 220. On or about October 1, 1992, Respondent dictated an orthopedic history and physical indicating that Patient E.D. was suffering from back pain with radiculopathy. The radicular pain was noted to be confined to the right leg, yet Respondent diagnosed internal disc disrupture at L4-5 left, and indicated the plan for surgery at L4-5 left. 221. On or about October 14, 1992, Respondent dictated an operative report for patient E.D. indicating the following procedures were performed at LA-5 left: discogram, discectomy with transpedicular approach, annulorrhaphy, and thermography. Respondent noted that Patient E.D. experienced complete relief of “pain on the L5 nerve root” immediately following surgery. 222. On or about November 6, 1992, Respondent dictated an orthopedic history and physical indicating that Patient E.D. was suffering from back pain with radiculopathy to both legs, worse on the left. Patient E.D.’s symptoms were noted to be a recurrence of that experienced prior to the surgery of October 14, 1992. Respondent made the same diagnosis of . intemal disc disrupture at LA-5 left, and the same plan for repeat surgery at LA-5 left. 54 223. On or about November 9, 1992, Respondent performed a repeat of the surgery previously performed on October 14, 1992, at L4-5 left: discogram, discectomy with transpedicular approach, annulorrhaphy, and thermography. The operative reports for the November 9 procedures are alrnost identical to the operative reports for the October 14 procedures, including but not limited to, the patient’s alleged comments, and the assertion by Respondent that all of Patient E.D.’s lower extremity pain was removed by the conclusion of the procedure. 224. On or about March 9, 1993, Respondent scheduled, or caused to be scheduled, Patient E.D. for surgery to be performed on April 14, 1993. Specifically, Patient ED. was scheduled for a lumbar laminectomy based upon Respondent’s diagnosis of internal disc disrupture at L4-5 left, the same diagnosis prompting the previous surgeries on or about October 14 and November 9, 1992. 225. On or about March 9, 1993, an MRI was interpreted as revealing an increase in the posterior disc protrusion at LA-5 from 2 to 4 mm, with a decrease in the previously noted protrusion at L3-4 from 2 mm to 1mm. 226. On or about April 1, 1993, Respondent dictated an orthopedic history and physical indicating that Patient E.D. was suffering from back pain with radiculopathy to the left leg. As on previous examinations, Respondent made the same diagnosis, internal disc disrupture at LA-5 left, and he indicated plan for Patient E.D. as a laminectomy at L4-5 left. 227. On or about April 14, 1993, Respondent performed surgery for the third time on sion laminectomy” at L4-5 left for the es 55 ed 228. On or about June 21, 1993, Respondent determined the patient’s continued symptoms now correlated to the L3-4 left level, and recommended foramenectomy with discectomy at L3-4 left. On or about June 22, 1993, an MRI was interpreted as revealing no changes at the L3-4 level of Patient E.D.’s spine as compared with the MRI study of March 9, 1993. 229. On or about June 29, 1993, Respondent dictated a history and physical wherein he indicated Patient E.D. continued to suffer back pain with radiation to both legs, with pain worse on the left. Respondent indicated the pain affected the L4 nerve root and continued to affect the L5 nerve root as in the past. Respondent diagnosed internal disc disrupture at L3-4 left, and indicated a plan for surgery at L3-4 left. . 230. On or about July 2, 1993, Respondent again performed surgery upon Patient E.D., specifically, discography, discectomy via transpedicular approach, annulorrhaphy, and thermography at L3-4 left. 231. On or about July 13, 1993, Patient E.D. presented to Respondent’s facility complaining of continued pain radiating to the left lower extremity of 3-4 days duration. On or about July 22, 1993, Patient E.D. was evaluated by an associate of Respondent who documented the patient’s continued radicular pain, and that E.D. had indicated she did not wish to have further surgeries. On or about August 16 and 30, 1993, the patient’s condition was documented as unimproved. On or about October 18, 1993, Respondent saw the patient and diagnosed L4 radiculopathy on the right, and L5 bilateral radiculopathy, worse on the left. Respondent recommended bilateral revision laminectomy at L4-5. On or about November 2, 1993, Patient E.D. was treated for paralysis of her left lower extremity at Respondent’s facility. She did not seek further treatment from Respondent after approximately November 16, 1993. 56 232. Respondent failed to prepare a medical record justifying the course of treatment of Patient E.D., in one or more of the following ways, in that the record: failed to document a medical necessity for the surgeries or diagnostic procedures performed by Respondent during the period of in or about June 1992 through July 1993; failed to document an appropriate plan of . treatment for Patient E.D, in that the medical record failed to establish a correlation between the ongoing clinical symptoms of Patient E.D. and the imaging studies of on or about May 28, 1992, March 9, 1993, and June 22, 1993, and/or contains operative and examination results; and falsely described lumbar discectomies of on or about October 14, 1992, November 9, 1992, and July 2, 1993, as having been performed with a transpedicular approach. 233. Respondent failed to practice medicine with an acceptable level of care in the treatment of Patient E.D., in one or more of the following ways: by performing multiple surgeries and diagnostic procedures during the period of in or about May 1992 through July 1993, which were not necessary and not medically indicated; by repeatedly performing additional surgeries during the aforementioned period without waiting an appropriate period for recovery by Patient E.D., and which were not necessary or medically indicated; by inappropriately using operative thermography as a means of determining the existence of pathology in the spine, as well as the success of surgical procedures in treating that pathology; by using single level operative discography as a means of reproducing pain for the purpose of verifying the appropriate level for spinal surgery; by performing percutaneous cervical discectomy on Patient E.D.; and by forming different impressions of the patient regarding the need for surgery based on identical radiographic and physical findings. 57 eevee ae cp 234. Respondent inappropriately ) employed and billed for thermography, an unnecessary diagnostic test not reasonably calculated to assist his diagnosis and treatment of Patient E.D. during the period of in or about May 1992 through July 1993. 235. Respondent falsely described performing a discectomy with a transpedicular approach on Patient E.D. during surgeries of on or about October 14, 1992, November 9, 1992, ‘and July 2, 1993, in that Respondent did not employ a transpedicular approach in: the. performance of these surgeries. 236. Respondent inappropriately billed for discectomy with a transpedicular approach as performed on Patient E.D. during surgeries of on or about October 14, 1992, November 9, 1992, and July 2, 1993, in that Respondent did not employ transpedicular approach in the performance of these surgeries. 237. Respondent violated Section 766.111, Florida Statutes, by ordering, procuring, providing, or administering unnecessary diagnostic tests not reasonably calculated to assist him in arriving at a diagnosis and treatment of the patient’s condition, in that Respondent employed thermography on Patient E.D., as both a preoperative test to allegedly confirm pathology, and as 7 a postoperative test to allegedly confirm the success of the surgical procedures. COUNT TWENTY-SEVEN 238. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), and two hundred nine (209) through two hundred thirty-seven (237), as if fully set forth herein this Count Twenty-seven. 239. Respondent exercised influence on Patient E.D. to exploit her for financial gain due to one or more of the following, in that Respondent: inappropriately employed and billed for 38 ¥ thermography, an unnecessary diagnostic test not reasonably calculated to assist his diagnosis and treatment of Patient E.D. during the period of in or about May 1992 through July 1993; and inappropriately billed for discectomy with a transpedicular approach as performed on Patient E.D. during surgeries of on or about October 14, 1992, November 9, 1992, and July 2, 1993, in . that Respondent did not employ transpedicular approach in the performance of these surgeries. 240. Based on the foregoing, Respondent violated Section 458.331(1)(n), Florida Statutes, by 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. COUNT TWENTY-EIGHT 241. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), two hundred nine (209) through two hundred thirty-seven (237) and two hundred thirty-nine (239), as if fully set forth herein this Count Twenty-eight. 242. Respondent failed to perform a statutory or legal obligation placed upon a licensed physician, in that Respondent employed thermography, an unnecessary diagnostic test not reasonably calculated to assist his diagnosis and treatment of Patient E.D., during the period ~ of in or about May 1992 through July 1993, in violation of Section 766.111, Florida Statutes. | 243. Based on the foregoing, Respondent has violated Section 458.331(1)(g), Florida Statutes, by failing to perform any statutory or legal obligation placed upon a licensed physician. 59 COUNT TWENTY-NINE 244. Petitioner realleges and incorporates paragraphs one () through eleven (11), two hundred nine (209) through two hundred thirty-seven (237), two hundred thirty-nine (239), and two hundred forty-two (242), as if fully set forth herein this Count Twenty-nine. 245. Respondent made deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employed a trick or scheme in the practice of medicine, when Respondent falsely described performing a discectomy with a transpedicular approach on Patient ED. during surgeries of on or about October 14, 1992, November 9, 1992, and July 2, 1993, in that Respondent did not employ a transpedicular approach in the performance of these surgeries. 246. Based on the foregoing, Respondent violated Section 458.331(1)(k), Florida Statutes, by making deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick or scheme in the practice of medicine. COUNT THIRTY 247. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), two hundred nine (209) through two hundred thirty-seven (237), two hundred thirty-nine (239), two hundred forty-two (242), and two hundred forty-five (245), as if fully set forth herein this Count Thirty. 248. Respondent failed to keep written medical records justifying the course of treatment of Patient E.D., due to one or more of the following, in that record: failed to document a medical necessity for the surgeries or diagnostic procedures performed by Respondent during the period of in or about June 1992 through July 1993; falsely described lumbar discectomies of on or about October 14, 1992, November 9, 1992, and July 2, 1993, as having been performed aie to with a transpedicular approach; and failed“to document an appropriate plan of treatment for Patient E.D. "249. Based on the foregoing, Respondent violated Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations. COUNT THIRTY-ONE 250. Petitioner realleges and incorporates paragraphs one (1) through eleven (1 1), two hundred nine (209) through two hundred thirty-seven (237), two hundred thirty-nine (239), two hundred forty-two (242), two hundred forty-five (245), and two hundred forty-eight (248), as if fully set forth herein this Count Thirty-one. 251. Respondent failed to practice medicine within the appropriate standard of care in regard to Patient E.D, due to one or more of the following: by performing multiple surgeries and diagnostic procedures during the period of on or about May 1992 through July 1993, which were not necessary and not medically indicated; by repeatedly performing additional surgeries during the aforementioned period without waiting an appropriate period for recovery by Patient E.D., and which were not necessary or medically indicated; by inappropriately using operative thermography as a means of determining the existence of pathology in the spine, as well as the success of surgical procedures in treating that pathology; by using single level operative discography as a means of reproducing pain for the purpose of verifying the appropriate level for _ Spinal surgery; by performing percutaneous cervical discectomy on Patient E.D.; and by forming 61 different impressions of the patient regarding the need for surgery based on identical radiographic and physical findings. 252. Based on the foregoing, Respondent violated Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. FACTS PERTAINING TO PATIENT P.L. 253. On or about August 31, 1993, Patient P.L., a then forty-one (41) year old female, presented to Respondent with complaints of lower back, left leg, neck and shoulder pain. P.L.’s history was significant for two automobile accidents, the second having occurred approximately nine (9) days prior. 254. An MRI obtained on or about September 3, 1993, was interpreted as revealing only a 3 mm bulge at the L4-5 level and a 2-3 mm bulge at the L5/S] level, minimally significant findings. 255. On or about September 14, 1993, Respondent performed a history and physical of Patient P.L. In addition to the MRI findings, Respondent noted a chief complaint of low back pain and positive left sided physical findings. Respondent diagnosed internal disc disrupture at L45 left, ‘and recommended discogram, ‘discectomy, and annulorthaphy at 145 left. . 256. Also on or about September 14, 1993, David Weiland, M.D, performed a medical clearance examination on Patient P.L. Significantly, Dr. Weiland noted that P.L. suffered major depression, secondary to chronic pain, and that she exhibited unusual flat affect consistent with depression. Respondent’s medical record indicates P.L. had been a psychiatric patient with 62 suicide attempts, chronic depression, and “other mental problems.” Dr. Weiland prescribed Zoloft for the patient’s depression. Certain psychological diagnoses, such as major depression, are contraindications for spinal surgery. 257. On or about September 15, 1993, Respondent performed a left L4-5 discogram, left L4-5 discectomy with transpedicular approach, annulorrhaphy and thermogram at L4-5 left. Respondent noted that Patient P.L.’s extremity pain was completely removed at the conclusion. of the procedure. 258. On or about September 16, 1993, however, only one (1) day postoperatively, Patient P.L. complained that she had pain radiating from her buttocks to the ankle in both legs. The patient also commented on this date that she had in the past attempted suicide because of her pain. 259. On or about November 3, 1993, an MRI was interpreted as revealing a 6 mm central herniation extending to the right at LA-5, with advanced disc degeneration at L4-5. Ina history and physical of November 9, 1993, Respondent referenced the November 3, 1993 MRI, and the September 3, 1993 MRI results, which depicted a 2-3 mm central bulge at L5/S1. Nonetheless, Respondent diagnosed intemal disc disrupture_ and recommended discopram, discectomy, an and annulorrhaphy at L5/S1 left. 260. According to an operative report Respondent performed the following procedures on Patient PL. at L5/S1 left on or about November 24, 1993: discogram, discectomy with transpedicular approach, annulorrhaphy, and thermography. Respondent asserted that Patient P.L.’s lower extremity pain was completely removed by the conclusion of the procedure. 261. On or about December 7, 1993, Patient P.L. was noted to have continued radicular symptoms. On or about December 16, 1993, it was noted that Patient P.L.’s radicular 63 eur oRiRE ora i ie pain had returned only three (3) days after her last two (2) lumbar procedures. The impression was LS radiculopathy on the left was also noted. 262. On or about December 21, 1993, Respondent examined Patient P.L. and diagnosed back pain with L5 radiculopathy bilaterally, worse on the left. Respondent’s interpretation of Patient P.L.’s MRI of December 21, 1993, was a bilateral bulging disc at 14-5, worse on the left. Respondent diagnosed internal disc disrupture, and recommended L4-5 left discogram, discectomy, and annulorthaphy. 263. On or about December 23, 1993, the December 21, 1993 MRI was interpreted as revealing, among other findings, an L4-5 6 mm protrusion extending mainly to the right (rather than the left as interpreted by the Respondent), with a remark that the findings were unchanged from the MRI of November 3, 1993, which also described the herniation as extending to the right. 264. On or about January 5, 1994, Respondent performed the following procedures on Patient P.L. at L4-5 left: discectomy via transpedicular approach, annulorrhaphy, and thermography. Respondent claimed that Patient P.L.’s extremity pain was completely removed {by the conclusion of the procedure. 265. On or r about January 13, 1994, Patient “intermittent buckling of her left leg. On c or r about March 3, 1994, Patient PLL. Presented to / ‘Respondent who documented back pain and radicular pain in affecting the Ls and S1 nerve roots on the left. An MRI was ordered. 266. On or about March 10, 1994, an MRI was interpreted as revealing 3 mm bilateral protrusions at L3-4, a 4 mm right protrusion at L4-5, and disc degeneration at LA-5 and L5/S1. am complained of left groin pain and SOBRE Seen wpe erie oe ! ! ; ' 1 : : te oe sk te the conclusion of the procedure oa On or about March 14, 1994, Respondent reviewed the MRI with the patient, diagnosed back pain with LS left radiculopathy, and recommended discectomy at LA-5 left. 267. On or about March 23, 1994, Respondent performed the following procedures on Patient P.L. at LA-5 left: discogram, discectomy via transpedicular approach, annulorrhaphy, and thermography. Respondent claimed that Patient P.L.’s extremity pain was completely removed by the conclusion of the procedure. 268. On or about April 8, 1994, Patient P.L. reported left leg and foot pain of three to four days duration. The impression was possible LA radiculopathy on the left. On or about April 12, 1994, just four (4) days later, Respondent interpreted the patient’s complaints of pain as affecting the S1 nerve root. Respondent's impression was back pain with S1 radiculopathy on the-left, and he recommended discectomy at L5/S1 left. In a history and physical of the same date, Respondent’s impression was internal disc disrupture at L5/S1 left. | 269. On or about April 18, 1994, Respondent again performed surgery on Patient P.L., including LS/S1 left discogram, discectomy with transpedicular approach, annulorrhaphy, thermography, lumbar facet debridement, and release of nerve of Luska/thizolysis. Once again, Respondent claimed that all of Patient P.L.’s lower extremity pain \ was s completely removed by . 210. _ Patient PL continued to be symptomatic, According to the patient’s medical records, in or about ‘May or June of 1994, it was suggested to Patient PLL. that she see a psychiatrist and that she seek treatment for her depression. On or about June 27, 1994, she complained of right back pain ‘and bilateral lower leg, ankle, and foot pain. ' 271. On or about June 30, 1994, an MRI was interpreted as showing bilateral bulges of 3 mm at L3-4 and 4mm at L4-5, and disc degeneration at L4-5 and L5/S1. On or about July 5, 65 os Bi 1994, Respondent diagnosed back pain with Ls and S1 radiculopathy on the left, and recommended LA4-5 left micro-lumbar discectomy with possible additional surgery after post surgical evaluation. 272. On or about July 18, 1994, Patient P.L. presented to Respondent with questions regarding the surgical procedure proposed on July 5, 1994. Respondent examined the patient and diagnosed back pain with bilateral L5 radiculopathy, worse on the left. Respondent then changed his surgical recommendation of July 5, 1994, and proposed a lumbar laminectomy with fusion of L4-5 on the left. 273. On or about July 26, 1994, Respondent indicated a concern that PL. was a chronic pain patient. A chronic pain management course was suggested to Patient P.L., according to Respondent’s notes, and a prescription was written for referral. Respondent indicated on the prescription that Patient P.L. had “unresolved radicular pain,” and “failed back syndrome.” 274. On or about August 9, 1994, Patient P.L. again presented with complaint of bilateral leg pain worse on the left. According to the note of this date, chronic pain management was again discussed. Respondent then recommended a hemilaminectomy Procedure, rather than the previously recommended laminectomy, based on a determination that P.L. likely could not cope with the pain of a major surgery. 275. On or about August 31, 1994, Respondent indicated forming a: - hemi laminectomy at L4-5 left on Patient P.L. for the diagnosis of herniated nucleus pulposus. He farther asserted performing : a | hemilaminectomy i ina handwritten final diagnosis/attestation form of the same date. The actual procedure described i in the operative report and performed on Patient P.L. was a hemilaminotomy. er LE Re ll 276. On or about November 7, 1994, Patient P.L. wrote a letter to Respondent asking for additional medication to cope with her level of continued pain. 271. On or about December 6, 1994, Respondent sent Patient P.L. a letter advising her to seek a pain management program to assist her with continued complaints of pain. Respondent thereafter refused to again see Patient P.L. 278. Respondent failed to prepare a medical record justifying the course of treatment of Patient P.L., in one or more of the following ways, in that the record: failed to document a medical necessity for the surgeries and diagnostic procedures performed by Respondent during the period of on or about September 1993 through September 1994; failed to document an appropriate plan of treatment for Patient P.L., in that the medical record failed to establish a correlation between the ongoing clinical symptoms of the patient and the imaging studies of on or about September 3, 1993, November 3, 1993, December 21, 1993, March 10, 1994, and June 30, 1994, and/or contains conflicting operative and examination results; falsely described lumbar discectomies of on or about September 15, 1993, November 24, 1993, January 5, 1994, March 23, 1994, and April 18, 1994, as having been performed with a transpedicular approach; and falsely described the hemilaminotomy performed on or about August 31, 1994, as a hemilaminectomy. ~~ 279, Respondent failed to practice medicine with an acceptable level of care in the following ways: by performing multiple surgeries and Giagnostic procedures during the period of in or about September 1993 through September 199. wh recessary and not medically indicated; by repeatedly performing additional surgeries during the aforementioned period without waiting an appropriate period for recovery by Patient P.L., and when the subsequent Surgeries were not necessary or medically indicated; by inappropriately using operative thermography as a' means of determining the existence of pathology in the spine, as well as the success of surgical procedures in treating that pathology; by using single level operative discography as a means of reproducing pain for the purpose of verifying the appropriate level for spinal surgery; by performing multiples | surgeries on Patient P.L., whose medical history was significant for psychological problems; and by forming different impressions of the patient regarding the need for surgery based on identical radiographic and physical findings. . 280. Respondent inappropriately employed and billed for thermography, an unnecessary diagnostic test not reasonably calculated to assist his diagnosis and treatment of Patient P.L. during the period of in or about September 1993 through September-1994. 281. Respondent falsely described performing a discectomy with a transpedicular approach on Patient P.L. during surgeries of on or about September 15, 1993, November 24, 1993, January 5, 1994, March 23, 1994, and April 18, 1994, in that Respondent did not employ a transpedicular approach in the performance of these surgeries. 282. Respondent inappropriately billed for discectomy with a transpedicular approach as performed on Patient P.L. during surgeries of on or about September 15, 1993, November 24, 1993, January 5, 1994, March 23, 1994, and April 18, 1994, in that Respondent d did not temploy a transpedicular approach i in the performance of these surgeries. 283. Respondent violated Section 766.111, Florida Statutes, by ordering, procuring, providing, or administering unnecessary diagnostic tests not reasonably calculated to assist him in arriving at a diagnosis and treatment of the patient’s condition, in that Respondent employed thermography on Patient P.L., as both a preoperative test to allegedly confirm pathology, and as a postoperative test to allegedly confirm the success of the surgical procedures. REEF COUNT THIRTY-TWO 284. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), and two hundred fifty-three (253) through two hundred eighty-three (283), as if fully set forth herein this Count Thirty-two. 285. Respondent exercised influence on Patient P.L. to exploit her for financial gain due to one or more of the following, in that Respondent: inappropriately employed and billed for thermography, an unnecessary diagnostic test not reasonably calculated to assist his diagnosis and treatment of Patient P.L. during the period of in or about September 1993 through September 1994; and inappropriately billed for discectomy with a transpedicular approach as performed on Patient P.L. during surgeries of on or about September 15, 1993, November 24, 1993, January 5, 1994, March 23, 1994, and April 18, 1994, in that Respondent did not employ transpedicular approach in the performance of these surgeries. 286. Based on the foregoing, Respondent violated Section 458.331(1)(n), Florida Statutes, by 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. COUNT THIRTY-THREE | 287. | Petitioner realleges and incorporates paragraphs one (1) through eleven (1 1), two hundred fifty-three (253) through two hundred eighty-three (283), and two hundred eighty-five (285), as if fully set forth herein this Count Thirty-three. 288, Respondent failed to perform a statutory or legal obligation placed upon a licensed physician, in that Respondent employed thermography, an unnecessary diagnostic test not reasonably calculated to assist his diagnosis and treatment of Patient P.L., during the period of in or about September 1993 through September 1994, in violation of Section 766.111, Florida Statutes. 289. Based on the foregoing, Respondent has violated Section 458.331(1)(g), Florida Statutes, by failing to perform any statutory or legal obligation placed upon a licensed physician. COUNT THIRTY-FOUR 290. Petitioner realleges and incorporates paragraphs one (1) through eleven (1 1), two hundred fifty-three (253) through two hundred ei ghty-three (283), two hundred ei ghty-five (285), and two hundred eighty-eight (288), as if fully set forth herein this Count Thirty-four. 291. Respondent made deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employed a trick or scheme in the practice of medicine, in that Respondent falsely described performing a discectomy with a transpedicular approach on Patient P.L. during surgeries of on or about September 15, 1993, November 24, 1993, January 5, 1994, March 23, 1994, and April 18, 1994, in that Respondent did not employ a transpedicular approach in the performance of these surgeries. 292. Based on the foregoing, Respondent violated Section 458.331(1)(k), Florida Statutes, by making deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick or scheme in the practice of medicine. COUNT THIRTY-FIVE 293. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), two hundred fifty-three (253) through two hundred eighty-three (283), two hundred eighty-five (285), 70 two hundred eighty-eight (288), and two hundred ninety-one (291), as if fully set forth herein this Count Thirty-five. 294. Respondent failed to keep written medical records justifying the course of treatment of Patient P.L., in one or more of the following ways, in that the record: failed to document a medical necessity for the surgeries or diagnostic procedures performed by Respondent during the period of in or about September 1993 through September 1994; falsely described lumbar discectomies of on or about September 15, 1993, November 24, 1993, January 5, 1994, March 23, 1994, and April 18, 1994, as having been performed with a transpedicular approach; falsely described the hemilaminotomy performed on or about August 31, 1994, as a hemilaminectomy; and failed to document an appropriate plan of treatment for Patient P.L. 295. Based on the foregoing, Respondent violated Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations. COUNT THIRTY-SIX 296. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), two hundred fifty-three (253) through two hundred eighty-three (283), two hundred eighty-five (285), two hundred eighty-eight (288), two hundred ninety-one (291), and two hundred ninety-four (294), as if fully set forth herein this Count Thirty-six. 297. Respondent failed to practice medicine within the appropriate standard of care in regard to Patient P.L., due to one or more of the following, in that Respondent: by performing multiple surgeries and diagnostic procedures during the period of in or about September 1993 71 : through September 1994, which were not necessary and not medically indicated; by repeatedly performing additional surgeries during the aforementioned period without waiting an appropriate period for recovery by Patient P.L., and when the subsequent surgeries were not necessary or medically indicated; by inappropriately using operative thermography as a means of determining . the existence of pathology in the spine, as well as the success of surgical procedures in treating that pathology; by using single level operative discography as a means of reproducing pain for the purpose of verifying the appropriate level for spinal surgery; by performing multiples Surgeries on Patient P.L., whose medical history was significant for depression; and by forming different impressions of the patient regarding the need for surgery based on identical radiographic and physical findings. 298. Based on the foregoing, Respondent violated Section 458.331(1)(t), Florida Statutes, by failing to Practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. FACTS PERTAINING TO PATIENT M.H. 299. In or about October of 1993, Patient M.H., a then forty-one (41) year old male, presented to a chiropractor for treatment of neck pain. Patient M.H.’s history was significant for ~ abike accident some ten (1) years prior. 300. On or about October 19,- 1993, Patient M.H. . presented to a neurologist complaining of continued neck pain with radiating pain that was unresolved by chiropractic care. The neurologist ordered nerve conduction studies and an MRI. During the time period of on or about October 20-25, 1993, Patient M.H. underwent nerve conduction studies. Although some 72 abnormalities were noted, these studies did not reveal consistent evidence of nerve root impingement. On or about October 22, 1993, Patient M.H. underwent an MRI, which was interpreted as revealing marked spondylosis at C5-6, and evidence of a herniated disc at C4-5. The neurologist then referred the patient for a surgical evaluation. 301. According to an initial evaluation dated on or about November 16, 1993, Patient M.H. presented to Respondent’s facility complaining of a ten (10) year history of neck pain. This evaluation noted that an MRI of Patient M.H.’s cervical spine was taken on or about October 22, 1993, and that Patient M.H. reported a history of chiropractic care and evaluation by a neurologist. ) _ 302. Ina history and physical dictated on or about November 23, 1993, Respondent documented that Patient M.H. complained of neck pain that radiated to both shoulders and down both arms. Respondent diagnosed Patient M.H. with suffering internal disc disrupture at C4-5 left, and recommended discogram and discectomy at C4-5 on the left. 303. Also on or about November 23, 1993, Respondent diagnosed Patient M.H. with __ neck pain with radiculopathy at C5, C6, and C7, worse on the left. Respondent recommended a cervical discectomy at C4-5 on the left, with additional pathology to be treated conservatively until evaluation of the patient’s progress following the initial surgery. 304. In another history and physical also dictated on or about November 23, 1993, Respondent again noted that Patient MH. complained of neck pain that radiated to both shoulders and down both arms. In the record, however, Respondent diagnosed Patient M.H. with ‘internal disc disrupture at C5-6 left. Respondent recommended a discogram and discectomy at C5-6 on the left, despite having noted on the same date that additional pathology (other than at C4-5) would be treated conservatively. In this history and physical, Respondent documented B Seber ae po cies ae that a cervical discectomy had already been performed on December 7, 1993, despite that this date was still two (2) weeks into the future, and that specific surgery had not yet been performed. Not only is this history and physical inaccurate, it contradicts Respondent’s assertion that no additional surgeries would be performed until after evaluation of the patient following the first _ surgery. 305. On or about December 7, 1993, Respondent performed a discogram and discectomy at C4-5 on the left on Patient M.H. According to Respondent, Patient M.H.’s extremity pain was completely removed by the conclusion of the procedure. 306. On or about December 8, 1993, Respondent noted that Patient M.H. presented for . post-surgical follow-up and reported a ‘good night without any complications. Respondent did ~ notdocument that Patient MH. complained of any neck pain. 307. On or about December 14, 1993, Respondent performed a discogram and discectomy at C5-6 on the left on Patient M.H. According to Respondent, Patient M.H.’s extremity pain was completely removed by the conclusion of the procedure. 308. On or about December 15, 1993, Patient M. H. presented for post-surgical follow- Up. “Respondent documented that Patient M.H. was doing very well and had a good night without any complications. Respondent did not document that Patient M.H. _Complained of any ingers. “Respondent d documented i internal disc disrupre at C6-7 left, and recommended discogram and discectomy at C6-7 on the left. 74 309. On or about December 21, 1993, | Respondent performed a discogram and discectomy at C6-7 on the left on Patient M.H. According to Respondent, Patient M.H.’s extremity pain was completely removed by the conclusion of the procedure. 310. On or about December 22, 1993, Patient M.H. presented to Respondent for post- _ surgical follow-up. Respondent noted that Patient M.H. was doing very well and had a good night without any complications, and Respondent did not document any complaint of neck pain. 311. As part of a history and physical of on or about January 3, 1994, Respondent documented that Patient M.H. complained of neck pain that radiated to the right shoulder and down the arm. Respondent diagnosed Patient M.H. with internal disc disrupture at C4-5 right, and recommended discogram and discectomy at C4-5 on the i ght. 312. On or about January 6, 1994, Respondent performed a discogram and discectomy at C4-5 on the right on Patient M.-H. According to Respondent, Patient M.H.’s extremity pain was completely removed at the conclusion of the procedure. 313. On or about January 7, 1994, Respondent documented that Patient M.H. presented for to Respondent post-surgical follow-up. Respondent documented that Patient M.H. was doing. very well except for pain at the site of the surgical incision. Respondent did not document that Patient M.H. complained of any neck pain with radiating pain. However, in a history and physical also of on or about January 7, 1994, Respondent noted that Patient M.H. complained of neck pain that radiated to the tight arm and forearm to the fingers. Respondent diagnosed internal disc disrupture at C5-6 right, and recommended discogram and discectomy at C5-6 on the right. In this history and physical dictated on or about January 7, 1994, Respondent again erroneously documented that a future surgical procedure (cervical discectomy at C5-6 right on January 13, 1994) had already been performed. 75 SRT Be 314. On or about January 13, “1994, Respondent performed a discogram and discectomy at C5-6 right on Patient M.H. According to Respondent, Patient M.H.’s extremity pain was completely removed at the conclusion of the procedure. 315. Ina history and physical dictated on or about January 14, 1994, only one day after claiming that Patient M.H.’s extremity pain had been completely relieved by surgery, Respondent documented that Patient M.H. complained of neck pain that radiated to the right arm. and forearm to the fingers. Respondent again diagnosed internal disc disrupture, this time at C6-7 right, and again recommended discogram and discectomy at C6-7 right. 316. On or about January 20, 1994, Respondent performed a discogram and discectomy at C6-7 on the right on Patient M.H. According to Respondent, Patient M.H.’s extremity pain was again completely removed at the conclusion of the procedure. 317. Respondent performed six (6) cervical spine surgeries within an approximate time period of six (6) weeks on Patient M.H. 318. After performing the six (6) cervical spine surgeries, Respondent documented a surgical plan of treatment for Patient M-H. on or about April 12, 1994, that is a verbatim duplication of Respondent’s proposed plan of treatment of on or about November 23, 1993, dictated prior to the first surgical procedure. 319. . In or about September 1994, Patient M.H. presented to a neurosurgeon, who subsequently performed a cervical Lnierodiscectomy with h fusion. 320. Respondent failed to keep a medical record justifying th the c course of treatment of Patient M.H., in one or more of the following ways, in that the record: failed to document a medical necessity for the surgeries or diagnostic procedures performed by Respondent during the ‘period in or about December 1993 through April 1994; failed to document an appropriate plan of 76 Sse treatment for Patient M.H, in that the medical record failed to establish a correlation between the ongoing clinical symptoms of Patient M.H. and the imaging study of on or about October 22, 1993, and/or contains conflicting, operative and examination results; and contains inaccurate information in the history and physicals of on or about December 7, 1993, and January 7, 1993. 321. Respondent failed to practice medicine with an acceptable level of care in the treatment of Patient M.H., in one or more of the following ways: by performing multiple _ percutaneous cervical discectomy surgeries on Patient M.H. during the period of in or about December 1993 through January 1994, when percutaneous cervical discectomy as a procedure does not comport with the standard of care, or alternatively, even assuming cervical discectomy to be within the standard of care, the surgeries were not medically indicated; by repeatedly performing additional surgeries during the aforementioned time period without waiting an appropriate period for recovery by Patient M.H., and which were not necessary or medically indicated; by recommending additional surgery on or about April 12, 1994, which was not medically necessary or indicated; by using single level operative discography as a means of reproducing pain for the purpose of verifying the appropriate level for spine surgery; and by forming different impressions of the patient regarding the need for surgery based on identical radiographic and physical findings. COUNT THIRTY- SEVEN es an d incorporates paragraphs one @ ) through eleven a 1), and two hundred ninety-nine (299) through ‘three hundred twenty-one (321), as if fully set forth herein this Count Thirty-seven. 77 ° 323. Respondent failed to keep written medical records justifying the course- of treatment of Patient M.H., in one or more of the following ways, in that the record: failed to document a medical necessity for the surgical and diagnostic procedures performed by Respondent during the period in or about December 1993 through April 1994; failed to establish . a correlation between the ongoing clinical symptoms of Patient M.H. and the imaging study of on or about October 22, 1993; failed to document a clear treatment plan for Patient M.H.; contains conflicting operative and examination results for Patient M.H.; failed to document any attempts by Respondent of conservative management of Patient M.H.’s condition and/or an adequate history of Patient M.H. having received appropriate conservative treatment, and contains inaccurate information in the history and physicals of on or about December 7, 1993, and January 7, 1993. 324. Based on the foregoing, Respondent violated Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations. COUNT THIRTY-EIGHT 325. Petitioner realleges and incorporates paragraphs one (1) through eleven (1 1), two hundred ninety-nine (299) through three hundred twenty-one (321), and three hundred twenty- three (323), as if fully set forth herein this Count Thirty-eight. 326. Respondent failed to practice medicine within the appropriate standard of care in regard to Patient MH., in one or more of the following ways: by performing multiple percutaneous cervical discectomy surgeries on Patient M.H. during the period of in or about i) TD IRIS December 1993 through January 1994, when percutaneous cervical discectomy as a procedure does not comport with the standard of care, or alternatively, even assuming cervical discectomy to be within the standard of care, the surgeries were not medically indicated; by repeatedly - performing additional surgeries during the aforementioned time period without waiting an appropriate period for recovery by Patient M.H., and which were not necessary or medically indicated; by recommending additional surgery on or about April 12, 1994, which was not medically necessary or indicated, by using single level operative discography as a means of reproducing pain for the purpose of verifying the appropriate level for spine surgery; and by forming different impressions of the patient regarding the need for surgery based on identical radiographic and physical findings. 327. Based on the foregoing, Respondent violated Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. FACTS PERTAINING TO PATIENT LF. #2 328. On or about June 6, 1994, Patient L.F. #2, a then sixty-six (66) year old female, presented to Respondent with complaint of mainly low back pain with some extremity pain. Patient L.F. #2 had a significant history of lumbar spine surgeries in 1972, 1991, and 1993, including two previous lumbar discectomies, for symptoms thought related to earlier automobile accidents. Respondent ordered diagnostic tests including radiology studies and extensive physical performance testing. Respondent examined the patient and recorded findings that are internally inconsistent and do not accurately correlate to Patient L.F. #2’s presenting symptoms 79 p Rebee and complaints. The June 6, 1994 MRI report notes disc protrusions at L2-3 (3 mm) L3-4 (5 mm) and 14-5 (5 mm). There is no mention of any abnormality of the L5/S1 disc by the radiologist. Based on these findings, however, Respondent recommended surgery at the L5/S1 level of Patient L.F. #2’s lumbar spine with a plan for conservative treatment, including physical . therapy, of the L2-3, L3-4, and LA-5 levels. 329. On or about June 16, 1994, Respondent performed the following procedures on Patient L.F.#2 at L5/S1 right: a discogram, discectomy via a transpedicular approach, annulorrhaphy, thermogram, lumbar facet debridement, and release of the nerve at L5/S1. Respondent indicated that Patient L.F.#2 had complete extremity pain relief at the conclusion of the.surgery of June 16, 1994. 330. _ Patient L, F.#2 v was seen one (1) day Postoperatively on or about June 17, 1994 at which time she complained of pain in the lumbar ‘spine but no complaint of radicular pain. On or about this same date (June 17), however, Respondent dictated a new orthopedic history and physical wherein a second surgery was planned for the patient, which described pain that only one (1) day prior was noted by Respondent to be completely resolved, and which contained . symptoms of radicular pain not described at the postoperative visit of June 17, 1994. ; 331. Respondent recommended, via the history and physical dictated on June 17, 1994, and using the identical symptoms and findings found on June 6, 1994, that Patient L.F.42 now undergo : surgery at 13-4 on the ‘right. No conservative treatment was employed. 332. On or about June 30, 1994; Respondent again performed surgery upon Patient LF.#2. However, Respondent did not perform this surgery at L134 right as planned on June 17, 1994, but he performed it again at the LS/S1 level, which included repeat right L5/S1 lumbar 80 facet debridement and release of the nerve root at LS/S1 right. Respondent claimed that the patient’s back pain was relieved by the surgery. . 333. At the patient’s first postoperative visit of July 1, 1994, Patient L.F.#2 reported that her preoperative symptoms of mild discomfort in her lumbar spine and right buttock remained. On this same day, however, Respondent dictated a history and physical examination wherein he described the patient’s pain as radiating from the back to the hips, thighs, calves, and the tops of the feet. The physical examination dictation is again virtually identical to the previous two physical examination dictations, but for the absence of previously referenced left sided symptoms, which appear to have resolved despite not being treated. 334. Ina history and physical for Patient L.F.#2 of July 1, 1994, also just one (1) day’ after the previous surgery, Respondent indicated an impression of right-sided symptoms, a diagnosis of internal disc disrupture at LA-5 right, and a plan for discogram, discectomy, and annulorthaphy at LA-5 right. 335. A chart note of on or about July 11, 1994, indicated that the patient no longer suffered right-sided pain, but now complained of left-sided pain radiating from the back to the buttocks. 336. According to an operative report dated on or about July 14, 1994, Respondent performed a discogram, discectomy via transpedicular approach, annulorthaphy, and thermogram at L4-5 on the right. However, another operative report of the same date (July 14) indicated the same procedures having been done at LA-5 left. These two (2) operative report dated July 14" are identical, but for the word “right” having been replaced by the word “left” in depicting the side upon which the surgery was performed. According to the pathology report for ~ this surgery, the specimen provided was from the right side of the patient’s spine. 81 ck ie 337. On or about August 8, 1994, Respondent again dictated a history and physical, indicating that Patient L.F.#2 now complained of radicular pain affecting the L4 nerve root pathways, as well as right-sided muscle weakness. Respondent diagnosed Patient L.F.#2 with internal disc disrupture at L3-4 on the right, and he recommended discogram, discectomy with annulorrhaphy, and lumbar facet debridement with release of Luschka’s nerve and rhizolysis at L3-4 right. 338. Ina second dictation of August 8, 1994, Respondent indicated Patient L.F.#2 no longer suffered any radicular symptoms, but suffered lower back discomfort on the right side in the area of the L4-5 facet joint. This physical examination is essentially identical to the history and physical of August 8, 1994, but for the absence of any radicular symptoms or right sided muscle weakness. Respondent diagnosed facet syndrome at LA-5 right, and recommended L4-5 lumbar facet debridement with release of the nerve of Luschka and rhizolysis at L4-5 right. 339. In an “operative report of 0 on or “about August 24, 1994, Respondent indicated he performed a discogram, discectomy via transpedicular approach, annulorrhaphy, thermogram, and debridement, nerve release and rhizolysis, all at L3-4 right. 340. On or about September 19, 1994, Respondent dictated an orthopedic history and physical asserting ‘that Patient L.F. #2 w was is doing well following the multiple surgeries ¢ at the L4 and S1 nerve “roots, but that she continued to © experience radicular pain at the LS nerve root pathway ¢ on the left. On physical examination, although the predominance of positive findings . by! Respondent were right-sided, Respondent diagnosed Patient LF#2 with internal disc disrupture at L4-5 on the left. Respondent proposed a left L4-5 revision discectomy with lumbar facet debridement at LA-5 left. 82 341. On or about September 21, 1994, Respondent performed a discogram, transpedicular discectomy, annulorrhaphy, thermogram at LA-5 left, and lumbar facet debridement and nerve release at L5-S1 right. Respondent again asserted that at the end of the procedure, all Patient’s L.F.#2’s lower extremity pain was completely removed. 342. On or about November 30, 1994, Patient L.F.#2 returned for a postoperative visit. Although noted to be doing well at the areas previously treated, Respondent noted that the patient now experienced pain affecting the L5 nerve root distribution on the right side. Respondent recommended discogram, discectomy and facet debridement and nerve release/rhizolysis at L4-5 right. . 343. Respondent also dictated an orthopedic history and physical for Patient L.F.#2 on or about November 30, 1994, indicating the need for the surgeries recommended during the postoperative visit of the same date, and describing physical findings in support of the planned surgery at the L4-5 level. 344. On or about December 8, 1994, Respondent performed a discogram, transpedicular discectomy, annulorthaphy, and thermogram at L4-5 right. Respondent also performed debridement and nerve release at L5-S1 right, despite the lack of any indication in the November 30, 1994 history and physical for the procedure. Once again, Respondent’s operative report asserted that the patient experienced complete post-operative pain relief in the lower extremity. 345. Approximately one (1) month thereafter, Patient LF.#2 advised Respondent’s office of a burning sensation in the posterior aspect of her thigh to the knee, and of discomfort in the back. The patient was advised to take anti-inflammatory medication, to use a topical, and to continue home exercises. Respondent thereafter had no further contact with Patient L.F.#2. 83 x 346. On or about Decernber 6, 1994, Patient LF. #2 underwent an independent medical examination by another orthopedic physician. This physician opined that the surgical procedures performed by Respondent on Patient L-F. #2 were medically unnecessary. 347. Respondent failed to prepare a medical record justifying the course of treatment of Patient L.F. #2, in one or more of the following ways, in that the medical record: failed to , document a medical necessity for the surgeries or diagnostic procedures performed by Respondent during the period of in or about June 1994 through December 1994; failed to document an appropriate plan of treatment for Patient L-F.#2, in that the medical record failed to establish a correlation between the ongoing clinical symptoms of Patient L.F.#2 and the imaging study of June 6, 1994, and/or contains conflicting operative and examination results; falsely described lumbar discectomies of on or about June 16, 1994, June 30, 1994, July 14, 1994, August 24, 1994, September 27, 1994, and December 8, 1994, as having been performed with a transpedicular approach; and contains two (2) history and physicals of on or about July 14, 1994, which document a surgery being performed on different sides of L4-5. 348. Respondent failed to practice medicine with an acceptable level of care in the treatment of Patient LF#2, in one or more of the following ways: by performing multiple surgeries and ‘diagnostic procedures during the period of in or about June 1994 through December 1994, which were not necessary or medically indicated; by Tepeatedly performing additional surgeries during the aforementioned period without waiting an appropriate period for recovery by Patient LE #2, and which were not necessary or medically indicated, by inappropriately using operative thermography as a means of determining the existence of pathology in the spine, as well as the success of surgical procedures in treating that pathology; by inappropriately using single level operative discography as a means of reproducing pain for the bon Br i ev itamieeste. purpose of verifying the appropriate level for spinal surgery: by performing repeated rhizolysis at the same levels of the spine; by performing repeated L5/S! lumbar facet debridements during the aforementioned period, which were not medically indicated; and by forming different impressions of the patient based on identical radiographic and physical findings. 349. Respondent inappropriately employed and billed for thermography, an unnecessary diagnostic test not reasonably calculated to assist his diagnosis and treatment of Patient L.F.#2 during the period of in or about June 1994 through December 1994. 350. Respondent falsely described performing a discectomy with a transpedicular approach on Patient L.F.#2 during surgeries of on or about June 16, 1994, June 30, 1994, July 14, 1994, August 24, 1994, September 27, 1994, and December 8, 1994, in that Respondent did -not.employ a transpedicular approach i in the performance of these surgeries. 351. Respondent inappropriately billed for discectomy with a transpedicular approach as performed on Patient L.F.#2 during surgeries of on or about June 16, 1994, July 14, 1994, August 24, 1994, September 27, 1994, and December 8, 1994, in that Respondent did not employ a transpedicular approach in the performance of these surgeries. 352. Respondent violated Section 766.111, Florida Statutes, by ordering, procuring, providing, or administering unnecessary diagnostic tests not reasonably calculated to assist him in arriving at a diagnosis and treatment ‘of the patient’s condition, in that Respondent employed thermography on Patient L.F.#2, as both a preoperative test to allegedly confirm pathology, and as a postoperative test to allegedly confirm the success of the surgical procedures. 85 COUNT THIRTY-NINE 353. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), and _ three hundred twenty-eight (328) through three hundred fifty-two (352), as if fully set forth herein this Count Thirty-nine. 354. Respondent exercised influence on Patient L.F.#2 to exploit her for financial gain due to one or more of the following, in that Respondent: inappropriately employed and billed for thermography, an unnecessary diagnostic test not reasonably calculated to assist his diagnosis and treatment of Patient L.F.#2 during the period of in or about June 1994 through December 1994; and inappropriately billed for discectomy with a transpedicular approach as performed on Patient L.F.#2 during surgeries of on or about June 16, 1994, July 14, 1994, August 24, 1994, September 27, 1994, and December 8, 1994, in that Respondent did not employ a transpedicular approach in the performance of these surgeries. 355. Based on the foregoing, Respondent violated Section 458.331(1)(n), Florida Statutes, by 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. COUNT FORTY 356. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), . three hundred twenty-eight (328) through three hundred fifty-two (352), and three hundred fifty- four (354), as if fully set forth herein this Count Forty. 357. Respondent failed to perform a statutory or legal obligation placed upon a licensed physician, in that Respondent employed thermography an unnecessary diagnostic test 86 * not reasonably calculated to assist his diagnosis and treatment of Patient L.F.#2, during the period of in or about June 1994 through December 1994, in violation of Section 766.111, Florida Statutes. 358. Based on the foregoing, Respondent violated Section 458.331(1)(g), Florida | Statutes, by failing to perform any statutory or legal obligation placed upon a licensed physician. COUNT FORTY-ONE 359. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), three 7 hundred twenty-eight (328) though three, hundred fifty-two (352), three hundred fifty-four -seven @sn, as if fully set forth herein this Count t Forty-one. 360. Respondent: made e deceptive, untrue, or fraudulent representations in or related to the oractice of medicine « or ‘employed a trick or scheme in the practice of medicine, when Respondent falsely described performing a discectomy with a transpedicular approach on Patient LF. #2 during surgeries ¢ of on or about June 16, 1994, July 14, 1994, August 24, 1994, September 27, 1994, and December 8, 1994, in that Respondent did not employ a transpedicular approach in the performance of these surgeries. 361. Based on the foregoing, Respondent violated Section 458.331(1)(k), Florida Statutes, by making deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick or scheme in the practice of medicine. COUNT FORTY-TWO 362. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), three hundred twenty-eight (328) through three hundred fifty-two (352), three hundred fifty-four 87 (354), three hundred fifty-seven (357), and three hundred sixty (360), as if fully set forth herein this Count Forty-two. 363. Respondent failed to keep written medical records justifying the course of treatment of Patient L.F.#2, due to one or more of the following, in that the record: failed to document a medical necessity for the surgeries or diagnostic procedures performed by Respondent during the period of in or about June 1994 through December 1994; failed to document an appropriate plan of treatment for Patient L.F.#2; falsely described lumbar discectomies of on or about June 16, 1994, July 14, 1994, August 24, 1994, September 27, 1994, and December 8, 1994, as having been performed with a transpedicular approach; and contains two.(2) history and physicals of on or about July 14, 1994, which document a surgery being performed on different sides of LA-5. 364. Based on the foregoing, Respondent violated Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations. ‘ COUNT FORTY-THREE 365. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), three hundred twenty-eight (328) through three hundred fifty-two (352), three hundred fifty-four (354), three hundred fifty-seven (357), three hundred sixty (360), and three hundred sixty-three (363), as if fully set forth herein this Count Forty-three. 366. Respondent failed to practice medicine within the appropriate standard of care in regard to Patient L.F.#2, due to one or more of the following: by performing multiple surgeries 88 and diagnostic procedures during the period of on or about June 1994 through December 1994, which were not necessary or medically indicated; by repeatedly performing additional surgeries during the aforementioned period without waiting an appropriate period for recovery by Patierit LF#2, and which were not necessary or medically indicated; by inappropriately using operative thermography as a means of determining the existence of pathology in the spine, as well as the success of surgical procedures in treating that pathology; by inappropriately using single level operative discography as a means of reproducing pain for the purpose of verifying the appropriate level for spinal surgery; by performing repeated rhizolysis at the same levels of the spine; by performing repeated L5/S1 lumbar facet debridements during the aforementioned period, which were not medically indicated; and by forming different impressions of the patient based on identical radiographic and physical findings. 367. Based on the foregoing, Respondent violated Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. FACTS PERTAINING TO PATIENT C.T. 368. Following an automobile accident of on or about September 8, 1992, Patient C.T. was treated by Sam Tarabishy, M.D., during the period of October 1992 through November . 1992. Dr. Tarabishy found no neurological deficit upon physical examination and specifically found an MRI of the lumbar spine to be normal. Dr. Tarabishy found no indication for surgery. 369. Onor about January 6, 1993, Patient CT, a then forty-three (43) year old female, presented to Respondent's office with complaints of neck and right shoulder pain resulting from 89 the automobile accident of on or about September 8, 1992. During this initial examination, Patient C.T. was noted to have been in good health, aside from “some arthritic complaints,” prior _to the automobile accident. Despite the Patient’ s own assertion that she was experiencing no upper extremity weakness, as ‘noted in Respondent’ s ; record, the patient was thereafter noted to have decreased strength in the left arm with normal right arm strength, along with pain mainly in the cervical area with some radiation to the trapezius, and with no numbness, tingling, or headaches. | 370, Patient C.T. underwent various diagnostic tests, including, but not limited to, x- rays, cervical and lumbar MRI scans of January 14, 1993, and physical performance tests. ) 371. On or about January 19, 1993, Respondent noted decreased strength in Patient C.T.’s right arm, with left arm strength normal, and further that the patient’s neck pain now radiated to the right shoulder, arm, and thumb. Patient C.T. was then also noted to have decreased sensation in the forearm, thumb, and index finger. Although the report from the January 14th cervical MRI was not available, Respondent interpreted this MRI as revealing a bulging disc at C5-6 on the right. Respondent diagnosed Patient C.T. with neck pain with C6_ radiculopathy, and recommended cervical discogram at C5-6 on the right and possible cervical discectomy. 372. Onor about February 4, 1993, Lutz Schlicke, M.D., a board certified orthopedic surgeon, performed an independent medical examination of Patient C.T., including an extensive neurological examination. Dr. Schlicke also reviewed records of Respondent’s examination of the patient, including results of the x-ray and MRI studies performed by Respondent, and determined that no surgical intervention was indicated. Dr. Schlicke noted that Patient C.T. suffered chronic depression with a history of panic attacks, making her prognosis guarded. 373. Jn a history and physical of on or about February 5, 1993, Respondent again interpreted the MRI as revealing a bulging disc at C5-6 on the right, with the same physical findings as indicated at the visit of January 19, 1993. Respondent diagnosed Patient C.T.. with ~ internal disc disrupture, and recommended C5-6 right discogram and possible discectomy. 374. On or about February 8, 1993, the cervical MRI of January 14, 1993, was interpreted as revealing a disc protrusion with greater left lateral encroachment at the C5-6 level. | 375, On or about February 11, 1993 Respondent performed a discogram and discectomy on Patient C.T.’s cervical spine, at the right side of the C5-6 level, even though the MRI had been interpreted as revealing the protrusion greater at the left. Respondent claimed that Patient C.T. experienced complete pain relief at the conclusion of the surgery. 376. Patient C.T. continued to experience neck and back pain and was again evaluated at Respondent’s facility on or about December 6, 1993. A physical examination revealed normal strength in both arms. The impression was continued cervical pain with symptoms of radiculopathy. A cervical MRI of December 9, 1993, was interpreted as revealing protrusions at C3-4, C5-6, and C6-7, and degenerative changes at C4-5, and C5-6. 377. The physical examination of December 6, 1993, reflected Patient C.T.’s complaint of constant lumbar pain radiating down both extremities, and that the patient was unable to delineate any particular path of the pain. The impression was continued lower back pain with symptoms of radiculopathy at L2. A lumbar MRI of December 13, 1993, was interpreted as revealing central protrusions of 4mm at L3-4, 3 mm at L4-5, and 4 mm at L5/S1, with disc degeneration at L3 through S1. 378. On or about January 17, 1994, Respondent advised Patient C.T. that additional surgery was indicated. According to Respondent, Patient C.T. specifically described the 91 2 pathway of the pain radiating from her back, with the pain worse on the right side. Respondent recommended discectomy at L4-5 on the right, indicating the symptoms as more pronounced on the right, and indicated the L3-4 and L5/S1 levels would be managed conservatively before considering additional surgery. 379. On or about January 17, 1994, Respondent dictated an orthopedic history and physical wherein he indicated the plan of treatment to be a lumbar discogram and discectomy with annulorrhaphy at L4-5 on the right. The surgery was planned at L4-5 on the right for January 27, 1994, Respondent dictated a second history and physical, also on January 17, 1994, and indicated the plan of treatment as a discogram, discectomy, and annulorrhaphy at L5/S1 on the right. 380. On January 19, 1994, Respondent dictated yet a third orthopedic history and physical, which indicated the plan of treatment as a lumbar discogram and discectomy with annulorrhaphy at L3-4 on the right. This surgery was scheduled for Patient C.T to be performed on February 15, 1994. Respondent’s physical examination findings on both reports of January 17, 1994, and the third report of January 19, 1994, are identical. 381. On or about January 27, 1994, Respondent performed a discogram, transpedicular discectomy, annulorrhaphy and thermogram on Patient C.T. at the L5-S1 level. Respondent again asserts that Patient C.T. experienced complete relief of lower extremity pain at the ~ conclusion of the procedure. _ 382. In an operative note of January 27, 1994, Respondent identified disc bulging and annulus bulging at L5-S1 as the intended level for surgery in both the preoperative diagnosis and postoperative diagnosis. Respondent did not reference the LA-5 level of the spine or explain why the surgery was performed at L5/S1 instead of the previously identified level of L4-5. 92 383. On or about February 14, 1994, Patient C.T.’s husband cancelled the surgery scheduled to be conducted on February 15, 1994 (at L3-4) because C.T. had been admitted to the psychiatric ward of a hospital in Ocala. 384. Respondent failed to keep a medical record justifying the course of treatment of Patient C.T., in one or more of the following ways, in that the record: failed to document a medical necessity for surgeries or diagnostic procedures performed by Respondent in or about February 1993 through January 1994; failed to document an appropriate plan of treatment for Patient C.T., in that the medical record failed to establish a correlation between the ongoing clinical symptoms of Patient C.T. and the imaging studies of on or about January 14, 1993, December 9, 1993, and December 13, 1993, and/or contains conflicting operative and examination results for Patient C.T.; and falsely described the lumbar discectomy of on or about January 27, 1994, as having been performed with a transpedicular approach. 385. Respondent failed to practice medicine with an acceptable level of care in the treatment of Patient C.T., in one or more of the following ways: by performing a percutaneous cervical discectomy on Patient C.T. on or about February 11, 1993, when percutaneous cervical discectomy as a procedure does not comport with the standard of care, and when, even assuming cervical discectomy to be within the standard of care, the surgery was not medically indicated; by inappropriately using operative thermography as a means of determining the existence of pathology in the spine, as well as the success of surgical procedures in treating that pathology; by performing a percutaneous lumbar discectomy on or about January 27, 1994, which was not medically indicated; by performing diagnostic procedures, which were not medically indicated; by using single level operative discography as a means of reproducing pain for the purpose of verifying the appropriate level for spine surgery; by performing multiples surgeries on Patient 93 eer ee aka C.T., whose medical history was significant for psychological problems; and by forming different opinions of the patient regarding the need for surgery based on identical radiographic and physical findings. 386. Respondent inappropriately employed and billed for thermography, an unnecessary diagnostic test not reasonably calculated to assist his diagnosis and treatment of Patient C.T on or about January 27, 1994. 387. Respondent falsely described performing a discectomy with a transpedicular approach on Patient C.T. during surgery of on or about January 27, 1994, in that Respondent did not employ a transpedicular approach in the performance of this surgery. 388. Respondent inappropriately billed for discectomy with a transpedicular approach as performed on Patient C.T. during the surgery of on or about January 27, 1994, in that Respondent did not employ transpedicular approach in the performance of these surgeries. 389. Respondent violated Section 766.111, Florida Statutes, by ordering, procuring, providing, or administering unnecessary diagnostic tests not reasonably calculated to assist him in arriving at a diagnosis and treatment of the patient’s condition, in that Respondent employed thermography on Patient C.T., as both a preoperative test to allegedly confirm pathology, and as a postoperative test to allegedly confirm the success of the surgical procedures. COUNT FORTY-FOUR 390. Petitioner realleges and incorporates paragraphs one (1) through eleven (11) and three hundred sixty-eight (368) through three hundred eighty-nine (389), as if fully set forth herein this Count Forty-four. 94 | wre Rey 391. Respondent exercised influefice on Patient C.T. to exploit her for financial gain due to one or more of the following, in that Respondent: inappropriately employed and billed for thermography, an unnecessary diagnostic test not reasonably calculated to assist his diagnosis and treatment of Patient C.T on or about January 27, 1994; and inappropriately billed for discectomy with a transpedicular approach as performed on Patient C.T. during the surgery of on or about January 27, 1994, in that Respondent did not employ transpedicular approach in the performance of this surgery. oS 392. Based on the foregoing, Respondent violated Section 458.331(1)(n), Florida Statutes, by 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. COUNT FORTY-FIVE 393. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), three hundred sixty-eight (368) through three hundred eighty-nine (389), and three hundred ninety-one (391), as if fully set forth herein this Count Forty-five. 394. Respondent failed to perform a statutory or legal obligation placed upon a .. licensed physician, in that Respondent employed thermography, an unnecessary diagnostic test not reasonably calculated to assist his diagnosis and treatment of Patient C.T on or about J anuary _ 27, 1994, in violation of Section 766.111, Florida Statutes. 395. Based on the foregoing, Respondent has violated Section 458.331(1)(g), Florida Statutes, by failing to perform any statutory or legal obligation placed upon a licensed physician. 95 wee omar COUNT FORTY-SIX 396. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), three hundred sixty-eight (368) through three hundred eighty-nine (389), three hundred ninety-one (391), and three hundred ninety-four (394), as if fully set forth herein this Count Forty-six. 397. Respondent made deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employed a trick or scheme in the practice of medicine, when. Respondent falsely described performing a discectomy with a transpedicular approach on Patient C.T. during surgery of on or about January 27, 1994, in that Respondent did not employ a transpedicular approach in the performance of this surgery. . 398. Based on the foregoing, Respondent violated Section 458.331(1)(k), Florida Statutes, by making deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick or scheme in the practice of medicine. COUNT FORTY-SEVEN 399. | Petitioner realleges and incorporates paragraphs one (1) through eleven (11), three hundred sixty-eight (368) through three hundred eighty-nine (389), three hundred ninety-one (391), three hundred ninety-four (394), and three hundred ninety-seven (397), as if fully set forth herein this Count Forty-seven. 400. Respondent failed to keep written medical records justifying the course of treatment of Patient C.T., in one or more of the following ways, in that the record: failed to document a medical necessity for surgeries or diagnostic procedures performed by Respondent in or about February 1993 through January 1994; failed to document an appropriate plan of 96 é : treatment for Patient C C. T.; an alsel described the Jumbar discectomy of on or about January ~27, 1994, as having been performed with a transpedicular approach, 401. Based on ‘the foregoing, Respondent violated Section 458.331(1)(m), Florida “Statutes, by failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations. COUNT FORTY-EIGHT 402. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), three hundred sixty-eight (368) through three hundred eighty-nine (389), three hundred ninety-one (391), three hundred ninety-four (394), three hundred ninety-seven (397), and four hundred (400), as if fully set forth herein this Count Forty-ei ght. 403. Respondent failed to practice medicine within the appropriate standard of care in regard to Patient cr, in one or more of the following ways: “by performing a percutaneous cervical discectomy on Patient C.T. on or about February 11, 1993, when percutaneous cervical discectomy as a procedure does not comport with the standard of care, or alternatively, even assuming cervical discectomy tc to » be within the standard of care, the > surgery was not medically ea Bast a fia suena won elena nomen -.indicated; by inappropriately using operative temography as a means of determining the existence of pathology i in 1 the spine, as s well as the success of surgical procedures in treating that pathology; by performing a percutaneous lumbar discectomy on or about January 27, 1994, which was not medically indicated; by performing diagnostic procedures, which were not medically indicated; by using single level operative discography as a means of reproducing pain for the purpose of verifying the appropriate level for spine surgery; by performing multiples surgeries on Patient C.T., whose medical history was significant for psychological problems; and 97 Bahl o by forming different opinions of the patient regarding the need for surgery based on identical radiographic and physical findings. 404. Based on the foregoing, Respondent has violated Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is _ recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. FACTS PERTAINING TO PATIENT P.S. 405. On or about April 19, 1993, Patient P.S., a then forty-five (45) year old female, “presented to Respondent’s ‘facility, complaining of severe low back pain radiating to both legs. Patient P.S. had a complicated medical history, including prior lumbar surgery in or about November 1991. Patient P.S. was admitted, and her primary care physician ordered a consultation with Respondent. In consultation, Respondent recommended that Patient P.S. be treated conservatively, including pelvic traction, pain medications, physical therapy, and occupational therapy. However, no specific physical therapy treatment was ordered, nor was it seibkatiat alsin oa, . j documented i in n Patient P P. s’ s medical records. 406. ACT myelogram was performed on or about April 29, 1993, but it did not reveal any evidence of disc herniations at levels L3-4 or LA-5. Patient P.S. was discharged on or about May 3, 1993. | 407. On or about July 29, 1993, an MRI was interpreted as revealing disc bulges at L1- 2 and L3-4. 408. Onor about October 16, 1993, Patient P.S. presented to Respondent’s facility, and was noted to be complaining of severe low back pain radiating to both legs. Patient P.S. was 98 ee admitted, administered pain medication intramuscillarly, prescribed anti-inflammatories and muscle relaxants, and placed in pelvic traction. . ‘409. On or about October 19, 1993, a CT scan of Patient P.S.’s lumbar spine was interpreted as revealing: an 12-3 four (4) millimeter protrusion extending bilaterally; L3-4 five (5) millimeter protrusion extending bilaterally; L4-5 four @) millimeter protrusion extending bilaterally; and an L5-S1 six (6) millimeter protrusion extending to the left. 410. On or about October 28, 1993, Respondent reported performing the following procedures on Patient P.S. at L2-3 on the left: lumbar discectomy with transpedicular approach, discogram, annulorrhaphy, and thermogram. Respondent claimed that Patient P.S.’s extremity pain was completely removed immediately following the procedure; however, Patient P.S. continued to experience extremity pain immediately following the procedure. 411. On or about November 3, 1993, Patient P.S. was discharged ambulating but with continued pain, and with instructions to follow-up with Respondent. 412. On or about November 16, 1993, a CT scan of Patient P.S.’s lumbar spine was interpreted as revealing: L3-4 four (4) millimeter herniation extending right and left; L4-5 four (4) millimeter herniation extending right and left; and L5-S1 five (5) millimeter herniation ; extending right and left. 413. On or about March 3, 1994, Patient P.S. presented to a neurosurgeon for further evaluation of continued back pain with radicular pain. On or about March 14, 1994, an MRI was performed on Patient P.S. and interpreted as revealing moderate disc herniation at L5-S1. On or about March 31, 1994, this neurosurgeon performed bilateral laminectomies at the L4-5 and L5- S1 lumbar levels, bilateral foraminotomies at L4-5 and L5-S1, and lysis. of postoperative adhesions. The postoperative diagnosis for this surgical procedure included clinically insignificant small, recurrent disc protrusions, lumbar spondylosis, arid dense postoperative adhesions. "414. Respondent failed to keep a medical record justifying the course of treatment of Patient P.S., in one or more of the following ways, in that the record: failed to document a medical necessity for the surgeries or diagnostic procedures performed by Respondent on or about October 28, 1993; failed to document an appropriate plan of treatment for Patient P.S., in that the medical record contains conflicting operative and examination results for Patient PS. and/or failed to establish a correlation between the ongoing clinical symptoms of Patient P.S. and the imaging studies of on or about April 29, 1993, July 29, 1993, October 19, 1993, and November 16, 1993; and falsely described a lumbar discectomy of on or about October 28, 1993, as having been performed with a transpedicular approach. 415. Respondent failed to practice medicine within the appropriate standard of care in regard to Patient P.S., in one or more of the following ways: by performing surgeries and diagnostic procedures on Patient P.S. at level L2-3 on or about October 28, 1993, which were not medically indicated; by inappropriately using operative thermography as a means of determining the existence of pathology in the spine, as well as the success of his surgical procedures in treating the pathology; and by inappropriately using single level operative discography as a means of reproducing pain for the purpose of verifying the appropriate level to perform spine surgery. 416. Respondent violated Section 766.111, Florida Statutes, by ordering, procuring, providing, or administering unnecessary diagnostic tests not reasonably calculated to assist him in arriving at a diagnosis and treatment of the patient’s condition, in that on or about October 28, 1993, Respondent employed thermography on Patient P.S., as both a preoperative test to 100 ” allegedly confirm pathology, and as a postoperative test to allegedly confirm the success of the surgical procedures. 417. Onor about October 28, 1993, Respondent inappropriately employed and billed for thermography, an unnecessary diagnostic test not reasonably calculated to assist his diagnosis and treatment of Patient P.S. 418. Respondent falsely described performing a discectomy with a transpedicular approach on Patient P.S. during the surgery of on or about October 28, 1993, in that Respondent did not employ a transpedicular approach in the performance of this surgery. 419. Respondent inappropriately billed for discectomy with a transpedicular approach as performed on Patient P.S. during the surgery of on or about October 28, 1993, in that Respondent did not employ transpedicular approach in the performance of this surgery. COUNT FORTY-NINE 420. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), and four hundred five (405) through four hundred nineteen (419), as if fully set forth herein this Count Forty-Nine. . 421. Respondent made deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employed a trick or scheme in the practice of medicine, in that Respondent falsely described performing a discectomy with a transpedicular approach on Patient PS. during surgery of on or about October 28, 1993, when Respondent did not perform a discectomy with a transpedicular approach. - 422. Based on the foregoing, Respondent violated Section 458.331(1)(k), Florida Statutes, by making deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick or scheme in the practice of medicine. 101 COUNT FIFTY 423. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), four hundred five (405) through four hundred nineteen (419), and four hundred twenty-one (421), as if fully set forth herein this Count Fifty. 424. Respondent exercised influence on Patient P.S. to exploit her for financial gain in one or more of the following ways: by employing and billing for thermography, an unnecessary diagnostic test not reasonably calculated to assist in the diagnosis and treatment provided to Patient P.S., on or about October 28, 1993; and billing for discectomy with a transpedicular approach as performed on Patient P.S. on or about October 28, 1993, even though Respondent did not perform a discectomy with a transpedicular approach. 425. Based on the foregoing, Respondent violated Section 458.331(1)(n), Florida Statutes, by 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. COUNT FIFTY-ONE 426. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), four hundred five (405) through four hundred nineteen (419), four hundred twenty-one (421), and four hundred twenty four (424), as if fully set forth herein this Count Fifty-One. 427. Respondent failed to perform a statutory or legal obligation placed upon a licensed physician, in that Respondent inappropriately employed and billed for thermography, an unnecessary diagnostic test not reasonably calculated to assist in the diagnosis and treatment of Patient P.S., in violation of Section 766.111, Florida Statutes. 102 poe i i a at perform spine surgery. ° 428. Based on the foregoing, Respondent violated Section 458.331(1)(2), Florida Statutes, by failing to perform any statutory or legal obligation placed upon a licensed physician. COUNT FIFTY-TWO 429. Petitioner realleges and incorporates paragraphs one (1) through eleven (1), four hundred five (405) through four hundred nineteen (419), four hundred twenty-one (421), four hundred twenty four (424), and four hundred twenty-seven (427), as if fully set forth herein this - Count Fifty-Two. 430. Respondent failed to practice medicine within the appropriate standard of care in his care and treatment of Patient P.S., in one or more of the following ways: by performing surgeries and diagnostic procedures on Patient P. s. at tt level L2-3 on or about October 28, 1993, _ which were not medically indicated; by inappropriately using operative thermography as a means of determining the existence of pathology in the spine, as well as the success of his surgical procedures in treating the pathology; and by inappropriately using single level operative discography as a means of reproducing pain for the purpose of verifying the appropriate level to 431. Based on “the “foregoing, Respondent violated Section 458.331(1)(), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is ‘recognized by a reasonably prudent similar physician as being acceptable under similar — conditions and circumstances. COUNT FIFTY-THREE 432. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), four hundred five (405) through four hundred nineteen (419), four hundred twenty-one (421), four 103 eee RRR hundred twenty four (424), four hundred wénty-seven (427), and four hundred thirty (430), as if fully set forth herein this Count Fifty-Three. 433. Respondent failed to maintain a medical record justifying the course of treatment for Patient PS., in one or more of the following ways, in that the record: failed to document a medical necessity for the surgeries or diagnostic procedures performed by Respondent on or about October 28, 1993; failed to document an appropriate plan of treatment for Patient P.S.; and falsely described a lumbar discectomy of on or about October 28, 1993, as having been performed with a transpedicular approach. 434. Based on the foregoing, Respondent violated Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations. FACTS PERTAINING TO PATIENT D.A. 435, On or about June 15, 1992, Patient D.A., a then thirty-six (36) year old male, presented to Respondent for treatment of neck and back pain with radicular pain, following a work-related injury of on or about April 13, 1992. 436. On or about June 19, 1992, an MRI of Patient D.A.’s lumbar spine was interpreted as revealing posterior disc protrusions of one (1) millimeter at level L3-4, three (3) millimeters at level L4-5, and four (4) millimeters at level L5-S1. On or about June 19, 1992, an MRI study of Patient D.A.’s cervical spine was interpreted as revealing posterior disc protrusions at levels C3-4, C4-5, and C5-6, without a specific measurement noted. Neither the cervical nor the lumbar MRI revealed nerve root compression. SERRE 437. In a history and physical of on or about July 15, 1992, Respondent noted the patient’s complaint of low back pain with radicular pain to both legs. Respondent’s findings were contradictory, however, in that he first noted Patient D.A.’s pain to be definitely worse on the right, and then noted the pain to be worse on the left. Respondent diagnosed Patient D.A with internal disc disrupture, and recommended a lumbar discogram and lumbar discectomy with annulorrhaphy at LA-S left. 438. On or about July 22, 1992, Respondent performed the following procedures on Patient D.A. at LA-5 left: lumbar annulorrhaphy, lumbar discectomy with transpedicular approach, discogram, and thermography. Respondent claimed that Patient D.A. had complete extremity pain relief immediately following the surgery of July 22, 1992. 439. On or about July 23, 1992, a CT scan of the lumbar spine failed to reveal any disc herniations. 440. On or about July 24, 1992, Respondent repeated the following procedures on Patient D.A. at L4-5 on the left: lumbar annulorrhaphy, lumber discectomy with transpedicular approach, thermography and discogram. Respondent again claimed that Patient D.A. had “complete extremity pain re’ ief immediately following the surgery of July 24, 1992. The operative note for the surgery performed on July 24, 1992, is a verbatim duplication of the operative report for the surgery on July 22, 1992, including that Patient D.A. experienced complete relief of extremity pain immediately after each surgery. 441. On or about August 3, 1992, Patient D.A. presented to Respondent complaining of neck pain with radicular pain to both arms, worse on the right. Respondent diagnosed Patient D.A with internal disc disrupture relating to symptoms at C5-6 on the right, and recommended a cervical discogram, cervical discectomy and foramenectomy, all at C5-6 on the right. 105 ge eee 442. On or about August 5, 1992, Respondent performed a cervical discectomy at C5-6 on the right, and a discogram at C5-6 on the right. Respondent claimed that Patient D.A. had complete extremity pain relief immediately following the surgery of August 5, 1992. 443. On or about August 11, 1992, an MRI of Patient D.A.’s lumbar spine was performed at Respondent’s facility. This MRI was compared to ‘the MRI taken on or about June 19, 1992. According to the MRI report of August 11, 1992, Patient D.A. experienced a one (1) millimeter increase in the posterior disc protrusion at the L4-5 level. 444. On or about August 17, 1992, Patient D.A. presented to Respondent continuing to complain of back pain. Respondent diagnosed Patient D.A. with back pain with L5 radiculopathy on the left, and recommended a third lumbar discectomy and annulorrhaphy at LA- 5 on the left. 445. On or about August 20, 1992, Patient D.A. presented to the emergency room of Sun Bay Medical Center, complaining of severe low back pain. Following admission, a CT myelogram was performed and ‘interpreted as 5 revealing 2 a “slight posterior protrusion of L4-5 intervertebral disc mildly compromising the intervertebral foramina at this level.” While at Sun Bay Medical Center from August 20-25, 1992, Patient D.A. was treated with physical therapy and pelvic traction. Patient D.A. was discharged on or about August 25, 1992, with instructions __ to follow-up with Respondent. 446. On or about August 31, 1992, Respondent dictated an orthopedic history and physical in which he diagnosed Patient D.A. with internal disc disrupture, without noting a specific level. Respondent recommended a lumbar laminectomy for Patient D.A. at L4-5 on the left. 106 TOMB ss 447. On or about September 2, 1992, Respondent performed a laminectomy with discectomy on Patient D.A. at level L4-5 on the left. Also on or about September 2, 1992, Respondent performed a foramenectomy on Patient D.A. at level LA-5 on the left. 448. On or about January 1, 1993, Patient D.A. presented to the emergency room at Sun Bay Medical Center, complaining of severe low back pain radiating down both legs, and numbness in toes. Following admission, a CT myelogram was performed and interpreted as revealing a “prominent ulceration of L4-5 intervertebral disc with lateralization to the left” and “mild herniation of the L5-S1 intervertebral disc.” While at Sun Bay Medical Center during the approximate period of January 3-8, 1993, Patient D.A. was treated with physical therapy, pain medication and pelvic traction. Also while at Sun Bay Medical Center, Respondent evaluated Patient D.A. for additional surgery at level L4-5 on the left. Patient D.A. was discharged on or - about January 8, 1993. 449. On or about January 13, 1993, Respondent dictated an orthopedic history and physical indicating that Patient D.A. complained of low back pain with radiation to the left leg. Respondent diagnosed Patient D.A. with internal disc disrupture at L4-5 on the left, and recommended yet another lumbar laminectomy and foramenectomy at L4-5 on the left. On this same date, Respondent performed the recommended laminectomy with discectomy on Patient D.A. at LA-5 on the left. . 450. On or about March 15, 1993, Patient DA. was admitted to Respondent’s facility, - complaining of severe low back pain radiating to the left leg. On this date, an MRI of Patient D.A.’s lumbar spine was performed. This March 15th MRI was compared to previous MRI’s of on or about June 19, 1992 and August 11, 1992. According to the MRI report of March 15, 1993, Patient D.A. experienced another one (1) millimeter increase in the posterior disc 107 Prine ria TeREDE protrusion at L4-5, and encroachment upon the nerve root at L4-5 as a result of extensive scarring at that level. “451. On or about March 18, 1993, a CT myelogram was performed and interpreted as revealing herniation of the L4-5 intervertebral disc. 452. On or about March 24, 1993, Respondent dictated an orthopedic history and physical that indicated that Patient D.A. complained of low back pain with radiation to the left _ leg. Respondent diagnosed Patient D.A. with internal disc disrupture at L4-5 on the left, and recommended another lumbar laminectomy at L4-5 on the left. The same day, Respondent -. performed the recommended procedure, yet a third laminectomy with discectomy on Patient ~D.A. at L4-5 on the left. 453. Onor about July 19, 1993, an MRI of Patient D.A.’s lumbar spine was performed at Respondent’s facility. This July 19th MRI was compared to the MRI taken on or about March 15, 1993. According to the MRI report of July 19, 1993, Patient D.A. experienced a bony margin change at LA that may be consistent with a disc herniation. . 454. On or about August 25, 1993, a CT myelogram was performed and interpreted as revealing “associated surgical changes on left at L4-5 consistent with scarring further impinging apon the left intervertebral foramen.” 455. On or about August 25, 1993, Respondent dictated an orthopedic history and physical that indicated Patient D.A. complained of low back pain with radiation to the left leg. Respondent diagnosed Patient D.A. with intemal disc disrupture at L4-5 on the left, and recommended further surgery, including yet another lumbar discogram, lumbar discectomy and annulorthaphy, all at L4-5 on the left. 108 Te steed: om ” “fasion a as treatment for Pai nt 456. On or about August 26, 1993; Respondent performed a sixth surgery on Patient D.A. at L4-5 on the left, including: Jumbar annulorrhaphy, lumbar discectomy with transpedicular approach, and thermography. Respondent again claimed that Patient D.A. had complete extremity pain relief immediately following the surgery of August 26, 1993. 457. On or about May 31, 1994, Patient D.A. presented to a neurosurgeon for evaluation, who asserted that the seven (7) surgical procedures performed by Respondent on D.A. were unnecessary and had resulted in the L4-5 region of Patient D.A.’s spine being rendered unstable. 458. On or about July 6, 1994, the neurosurgeon performed a L4-5 posterior lumbar lumbar instability. 459. Respondent failed to keep a medical record justifying the course of treatment of Patient D.A., in one or more of the following ways, in that the record: failed to document a medical necessity for the surgeries and diagnostic procedures performed by Respondent during the period of on or about July 1992 through August 1993; failed to document an appropriate plan of treatment for Patient D.A., in that ‘the record failed to establish a correlation between the : : ongoing clinical symptoms of Patient D. A. and the imaging studies of on or about June 19, = 1992, Tuly 23, 1992, “August 1, 1999, ‘Ainguat 20, 1992, January 1, 1993, March 15, 1993, March 18, 1993, July 19, 1993 and ‘August 25, 1993, and/or contains conflicting operative and examination results for Patient D.A.; and falsely described the lumbar discectomies of on or about July 22, 1992, July 24, 1992, and August 26, 1993, as having been performed with a transpedicular approach. 460. Respondent failed to practice medicine with an acceptable level of care in the treatment of Patient D.A., in one or more of the following ways: by performing multiple 109 surgeries and diagnostic procedures on Patient D.A. at level L4-5 during the period of on. or about July 1992 through August 1993, which were not necessary or medically indicated; by repeatedly performing additional surgeries during the aforementioned period without waiting an appropriate period for recovery by Patient D.A, and which were not necessary or medically indicated; by inappropriately using operative thermography as a means of determining the existence of pathology in the spine, as well as the success of surgical procedures in treating the pathology; by using single level operative discography as a means of reproducing pain for the purpose of verifying the appropriate level for spine surgery; by performing percutaneous cervical discectomy on Patient D.A. on or about August 5, 1992; and by failing to diagnosis and treat Patient D.A.’s surgically induced lumbar instability, which resulted from the six (6) surgical procedures performed by Respondent at L4-5 left. 461. Respondent violated Section 766.111, Florida Statutes, by ordering, procuring, providing, or administering unnecessary diagnostic tests not reasonably calculated to assist him in arriving at a diagnosis and treatment of the patient’s condition, in that Respondent employed thermography on Patient D.A., as both a preoperative test to allegedly confirm pathology, and as a postoperative test to allegedly confirm the success of the surgical procedures of on or about July 1992 through August 1993. 462. During the period of on or about July 1992 through August 1993, Respondent inappropriately employed and billed for thermography, an unnecessary diagnostic test not reasonably calculated to assist his diagnosis and treatment of Patient D.A. 463. Respondent falsely described performing a discectomy with a transpedicular approach during surgeries of on or about July 22, 1992, July 24, 1992, and August 26, 1993, in that Respondent did not employ a transpedicular approach in the performance of these surgeries. 110 # 464. Respondent inappropriately billed for a discectomy with a_transpedicular approach on Patient D.A. during surgeries of on or about July 22, 1992, July 24, 1992, and August 26, 1993, in that Respondent did not employ a transpedicular approach in the performance of these surgeries. _ . COUNT FIFTY-FOUR 465. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), and four hundred thirty-five (435) through four hundred sixty-four (464), as if fully set forth herein this Count Fifty-Four. 466. Respondent made deceptive, untrue, or fraudulent representations in or related to =: the Practice of medicine or employed a trick or scheme in the Practice of medicine, in that Respondent falsely described performing a discectomy with a ‘ranspedicular approach on Patient D.A. during surgeries of on or about July 22, 1992, July 24, 1992, and August 26, 1993, when Respondent did not pérform a discectomy with a transpedicular approach. 467. Based on the foregoing, Respondent violated Section 458.331(1)(k), Florida Statutes, by making deceptive, untrue, or fraudulent ‘Tepresentations in or related to the practice e of medicine or employing a a tric or scheme in the practice of medicine. | | COUNT FIFTY: FIVE 468. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), four hundred thirty-five (435) through four hundred sixty-four (464), and four hundred sixty-six (466), as if fully set forth herein this Count Fifty-Five. 469. Respondent exercised influence on Patient D.A. to exploit him for financial gain in one or more of the following ways: he employed and billed for thermography, an unnecessary diagnostic test not reasonably calculated to assist in the diagnosis and treatment of Patient D.A., iit ie re oe ~~ Section 766. during the period of on or about July 1992 through August 1993; and he billed for discectomy with a transpedicular approach as performed on Patient D.A. during surgeries of on or about July - 2, 1992, July 24, 1992, and August 26, 1993, when Respondent did not perform a discectomy with a transpedicular approach. 470. Based on the foregoing, Respondent violated Section 458.331(1)(n), Florida Statutes, by 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. _ COUNT FIFTY-S SIX 471. Petitioner realleges and incorporates paragraphs one (1) through eleven (1 b. four hundred thirty-five (435) through four hundred sixty-four (464), four hundred sixty-six (466), and four hundred sixty-nine (469), as if fully set forth herein this Count Fifty-Six. 472. Respondent failed to perform a statutory or legal obligation placed upon a licensed physician, in that Respondent employed thermography, an unnecessary diagnostic test not reasonably calculated to assist in the diagnosis and treatment of Patient D.A., in violation of 473. Based on the foregoing, Respondent has violated Section 458.331(1)(g), Florida Statutes, by failing to perform any statutory or legal obligation placed upon a licensed physician. women me COUNT FIFTY-SEVEN 474, Petitioner realleges and incorporates s paragriphs one one (a) through eleven (2), four hundred thirty-five (435) through four hundred sixty-four (464), four hundred sixty-six (466), 112 ere four hundred sixty-nine (469), and four hundred seventy two (472), as if fully set forth herein this Count Fifty-Seven. 475. Respondent failed to practice medicine within the appropriate standard of care in his care and treatment of Patient D.A. in one or more of the following ways: by performing multiple surgeries and diagnostic procedures on Patient D.A. at level L4-5 during the period of in or about July 1992 through August 1993, which were not necessary or medically indicated; by repeatedly performing additional surgeries during the aforementioned period without waiting an appropriate period for recovery by Patient D.A, and which were not necessary or medically indicated; by inappropriately using operative thermography as a means of determining the existence of pathology in the spine, as well as the success of surgical procedures in treating the "pathology; by using single level operative discography as a means of reproducing pain for the purpose of verifying the appropriate level for spine surgery; by performing percutaneous cervical discectomy on Patient D.A. on or about August 5, 1992; and by failing to diagnosis and treat Patient D.A.’s surgically induced lumbar instability, which resulted from the six (6) surgical procedures performed by Respondent at LA-5 left. 476. Based on the foregoing, Respondent violated Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is ; recognized. by a , reasonably pt prudent similar physician as being acceptable under similar conditions and circumstances. COUNT FIFTY-EIGHT 477. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), four hundred thirty-five (435) through four hundred sixty-four (464), four hundred sixty-six (466), 113 four hundred sixty-nine (469), four hundred seventy-two (472), and four hundred seventy-five (475), as if fully set forth herein this Count Fifty-Eight. 478. Respondent failed to keep medical records justifying the course of treatment for Patient D.A., in one or more of the following ways, in that the record: failed to document a _ medical necessity for the surgeries and diagnostic procedures performed by Respondent during the period of in or about July 1992 through August 1993; failed to document a clear treatment -plan for Patient D.A., in that the record failed to establish a correlation between the ongoing clinical symptoms of Patient D.A., and the imaging studies of on or about June 19, 1992, July 23, 1992, August 11, 1992, August 20, 1992, January 1, 1993, March 15, 1993, March 18, 1993, July 19, 1993 and August 25, 1993, and/or contains conflicting operative and examination results for Patient D.A.; and falsely described the lumbar discectomies of on or about July 22, 1992, July 24, 1992, and August 26, 1993, as having been performed with a transpedicular approach. 479. Based on the forgoing, Respondent violated Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations. FACTS PERTAINING TO PATIENT LS. 480. On or about July 8, 1993, Patient L.S., a then forty-eight (48) year old female, was involved in an automobile accident. Following the accident, Patient L.S. experienced neck pain and received chiropractic treatment from in or about July 1993 through November 1993. 114 me gee 481. On or about July 17, 1993, an’ MRI of Patient L.S.’s lumber spine was performed, and interpreted as revealing no evidence of disc hemiation or spinal stenosis. The same day, an - MRI of Patient L.S.’s cervical spine was performed and interpreted as revealing disc bulges at C4-5 and C5-6. 482. On or about November 1, 1993, Patient L.S. presented to Respondent’s facility : complaining of neck pain radiating down the right arm. Patient L.S. also reported Jumbar pain, but she reported the pain was not severe enough to warrant an evaluation on this date. Patient LS. presented with a medical history of chronic fatigue syndrome, and depression treated with Prozac. Another MRI was ordered for Patient L.S. | 483. On or about November 8, 1993, an MRI of Patient L.S.’s cervical spine was performed and interpreted as revealing small posterior spurs at C4-5, C5-6, and C6-7, and a lateral spur on the right at C4-5, possibly causing nerve root compression. This MRI was compared to the MRI taken on or about July 17, 1993, and appeared unchanged. 484. On or about November 22, 1993, Respondent dictated an orthopedic history and physical that indicated Patient L.S. complained of neck pain that radiated from her neck to right shoulder and down her right arm. Although Respondent documented that Patient Ls. was taking Prozac, Respondent failed to document any additional information regarding Patient L.S.’s history of depression. Respondent ordered x-rays of Patient L.S.’s cervical spine, which he interpreted as revealing a slight decrease in the disc space between the C4-5, C5-6, and C6-7 vertebral bodies. Respondent diagnosed Patient LS. with internal disc disrupture at C6-7 on the right, and recommended a cervical discogram, cervical discectomy and foramenectomy, all at C6-7 on the right. 115 opie op: eae Sp BRE ” 485. On or about November 22, 1993, Respondent also diagnosed Patient L.S. with neck pain with cS, C6, and C7 radiculopathy on the right, and recommended a cervical discectomy at level C6-7 on the right, while noting that. additional unspecified pathology would be treated conservatively. 486. On or about December 16, 1993, Respondent performed the following procedures on Patient L.S. at C6-7 on the right: discogram, and cervical discectomy. Respondent asserted. that Patient L.S.’s extremity pain was completely removed immediately following the surgery of December 16, 1993. 487. On or about December 23, 1993, another MRI of Patient L.S.’s cervical spine was performed and interpreted as revealing: a three (3) millimeter protrusion at C3-4 touching the spinal canal; a three (3) millimeter protrusion at C4-5 touching the spinal cord; a three (3) millimeter protrusion at C5-6; and a four (4) millimeter protrusion at C6-7 slightly indenting the spinal cord. 488. According to an orthopedic history and physical dictated on or about January 6, 1994, Patient LS. Presented to > Respondent complaining of neck Pain radiating to the left shoulder and down her left a arm to the thumb. Respondent diagnosed Patient L S. with internal disc disrupture. at tthe C5-6 on nthe left and C6- 7 on the left and right. Respondent recommended a cervical discogram and discectomy at C5-6 on the left, and rhizolysis at C6-7 on the left and right. 489. An additional history and physical, also dictated by Respondent on or about January 6, 1994, indicated that Patient L.S. presented to Respondent complaining of neck pain radiating to the left arm and forearm to the index and long fingers. Respondent diagnosed 116 wpe eam eee ee a & E a Patient L.S. with internal disc disrupture at C6-7, now on the left, and recommended a cervical discogram and discectomy at C6-7 left, and rhizolysis at C6-7 left. 490. Also on (Or about January 6, 1994, Respondent diagnosed Patient L.S. with neck pain with C6 radiculopathy 0 on the left, for which he recommended a cervical discectomy at C5-6 eft, and rhizolysis at C6-7 bilaterally. 491. On or about January 7, 1994, Patient L.S. retumed to Respondent complaint recorded as back pain radiating through the right buttock down the right leg to the right foot. Respondent diagnosed Patient L.S. with back pain with radiculopathy. Respondent ordered an MRI scan of Patient L.S.’s lumbar spine, which was interpreted as revealing: a three GB) millimeter central protrusion at L2- 3; a three (3) millimeter protrusion extending right and left at L3-4; a four (4) millimeter protnision extending right and left at L4-5; and disc degeneration at L3-4 and L4-5. 492. On or about January 13, 1994, Respondent performed the following procedures on Patient L.S. at C6-7 on the left: discogram and cervical discectomy. Respondent again asserted that Patient LS.’s extremity pain was completely removed immediately following the surgery, of January 13, 1994. Also on or about ‘January 13, 1994, Respondent performed a 7 cervical facet | arthroscopic debridement at C6. 7 on the left, and a release of nerve of luska/rhizolysis procedure at 6-7, on the left. | 493. On or about January v7, 1994, Patient LS. presented to Respondent for post- surgical evaluation, and an evaluation of back pain with radiation to the right hip down to the right leg. Respondent diagnosed Patient LS. with back pain with LA Tadiculopathy o on the right, and recommended a lumbar discogram and discectomy at L3-4 on the right. 117 : i t 494. Also on or about January 17, 1994, Respondent dictated an orthopedic history and physical that indicated Patient L.S. complained of low back pain with radiation to the right leg. Respondent diagnosed Patient L.S. with internal disc disrupture at the L3-4 on the right, and "recommended a lumbar discogram and discectomy with annulorrhaphy at L3-4 on the ri ght. 495. On or about January 28, 1994, Respondent performed lumbar discograms on Patient L.S. at L3-4 and L4-5 right. During these discogram procedures, Patient L.S. did not feel any back pain with radiation to the L4 or L5 nerve roots. 496. On or about January 31, 1994, Patient L.S. presented to Respondent’s facility with complaint recorded as back pain with radiating pain to the right great toe. The plan for this visit included scheduling a follow-up appointment with Respondent. 497. On or about February 8, 1994, Patient L.S. presented to . Respondent for post- operative follow-up, and evaluation of low back pain radiating to the right leg. Respondent. diagnosed Patient L.S. with back pain with L5 radiculopathy on the right. Respondent also ordered another MRIto rule out internal disc disrupture at the LA-5 level on the right. 498. Purportedly after receiving the report of Patient L.S.’s lumbar MRI, Respondent dictated an orthopedic history and physical on or about February 8, 1994, that indicated a diagnosis of internal disc disrpture at LA-5 on the ‘ight. In this same history and physical, Respondent recommended the following for Patient LS.: lumbar discogram at L4-5 on the right; .._ lumbar discectomy with annulorthaphy at 1450 on n the Fight; and lumbar discogram at is- S1 on Ys R pondent dictated another history and physical that did not contain nthe recommendation of lumbar discogram at L5-S1¢ on the right. A scheduling note dated February 8, 1994, confirmed that Patient L.S. was scheduled for a lumbar discogram at L4-5 on 118 the right, and a lumbar discectomy with annulorhaphy at L4-5 on the right, but not a lumbar discogram at L5-S1 on the right. 499, On or about February 9, 1994, Respondent noted that the radiologist’s report of Patient L.S.’s lumbar MRI performed on February 8, 1994 was not available for review. However, Respondent indicated teviewing the MRI films himself and he interpreted the MRI as revealing a bulging disc at L4-5. Respondent diagnosed Patient L.S. with back pain with LS” radiculopathy on the ti ght, and recommended a lumbar discectomy at LA-5 on the right. 500. Ina report dated February 10, 1994, the MRI of February 8, 1994 was interpreted as revealing: a three (3) millimeter protrusion to the right and left at L3-4; a five (5) millimeter central protrusion extending right and left at L4-5; and minor disc degeneration at L4-5. 501. Onor about February 17, 1994, Respondent performed a lumbar discogram at the LA-5 level on the right, however, Patient L.S. did not feel any pain radiation to the L5 nerve root distribution. Respondent then elected to perform the following procedures on Patient L.S. at L5- Si on the right: lumbar discogram, lumbar discectomy with transpedicular approach, lumbar annulorrhaphy and thermography. Respondent again asserted that Patient L.S.’s extremity pain was completely removed immediately following the surgery of February 17, 1994. ; (502. On or about April: 13, 1994, Patient L. S. presented to Respondent complaining of pain that radiated down the left arm to the fingers. Respondent ordered another MRI of Patient L.S.’s cervical spine, which was interpreted as revealing: a three (3) millimeter spur-disc protrusion at C3-4; a three (3) millimeter spur-disc protrusion at C4-5; a three (3) millimeter spur-disc protrusion at C5-6; a five (5) millimeter spur-dise protrusion indenting the spinal cord at C6-7; and disc degeneration from C4 through C7. 119 PRET: RPMS Bs 5 503. On or about April 19, 1994, Respondent dictated a history and physical for Patient LS. after receiving the results of the cervical MRI taken on or about April 13, 1994. Respondent diagnosed Patient LS. with internal disc disrupture at C6-7 on the left, and recommended a cervical discogram and discectomy at C6- ‘7 on the left. 504. On or about May 11, 1994, Respondent performed the following procedures on Patient L.S. at C6-7 on the left: discogram and cervical discectomy. Respondent again claimed that Patient L.S.’s extremity pain was completely removed immediately following the surgery of . May 11, 1994. 505. On or about May 16, 1994, Patient L.S. presented to Respondent complaining of back pain radiating to the ‘Tight hip down the right leg. Respondent recommended scheduling Patient LS. for another lumbar discectomy at 145 on 1 the right. ~ 506. On or about June 1, 1994, Patient L.S. presented to Respondent complaining of low back pain radiating to the right hip down the right leg. Relying upon the MRI taken on or about January 7, 1994, instead of the more recent MRI taken on or about February 8, 1994, Respondent diagnosed Patient LS. with internal disc disrupture at L4-5 on the right. Respondent recommended a lumbar discogram at L4-5 on the right and lumbar discectomy with annulorrhaphy at L4-5 on the right. 507. On or about June 7, 1994, Respondent performed the following procedures on on ‘the right: discogram; ‘lumbar discectomy with transpedicular approach; jumbar annulorthaphy; and ‘thermography. “Respondent asserted that Patient LS.’s extremity pain was completely removed immediately following the surgery of June 7, 1994. 508. On or about June 20, 1994, an orthopedic surgeon, Martin Kornreich, M.D., performed an independent medical examination of Patient L.S. Dr. Kornreich reviewed Patient 120 # & g Da a multiple surgeries on Patient L. S., » given her medical history of depression. LS.’s prior imaging studies from Respondent, and found no significant disc herniation or nerve root impingement in the cervical or lumbar spine. Dr. Komreich questioned the appropriateness and necessity of the surgical procedures performed by Respondent on Patient L.S. Dr. Kornreich concluded that Patient L.S. did not need any further testing or surgery. “509. Respondent failed to keep a medical record justifying the course of treatment of Patient L.S., in one or more of the following ways, in that the record: failed to document a medical necessity for surgeries and diagnostic procedures performed by Respondent during the _ period of in or about December 1993 through June 1994; failed to document an ‘appropriate plan of treatment for Patient LS. “ in that the record failed to establish a correlation between the ; ongoing clinical symptoms of Patient L. S. and the i imaging studies of. on or about July 17, 1993, November 8, 1993, December 23, 1993, January 7, 1994, February 8, 1994, and April 13, 1994; and/or contains conflicting operative and examination results for Patient LS.; falsely described the lumbar discectomies of on or about February 17, 1994, and June 7, 1994, as having been Performed with a transpedicular approach; ¢ and failed to document a Justification for performing 510. "Respondent failed to practice medicine with an acceptable level of care with Patient LS. » in one or more of the following Ways: _by performing multiple surgeries and diagnostic procedures on on n Patient L S. during the period of i in or about December 1993, through June 1994, which were not necessary or medically indicated; by repeatedly performing additional surgeries during the aforementioned time period without waiting an appropriate period for recovery by Patient LS., and which were not necessary or medically indicated; by inappropriately using operative thermography on or about February 17, 1994, and June 7, 1994, as a means of determining the existence of pathology in the spine, as well as the success of 121 ES ri & surgical procedures in treating the pathology; by using single level operative discography as a means of reproducing pain for the purpose of verifying the appropriate level for spine surgery; _ by performing percutaneous cervical discectomy on Patient L.S. on or about December 16, 1993, January 13, 1994, and May 11, 1994; and by inappropriately performing multiple surgeries on Patient L.S., when Patient L.S. suffered chronic depression for which she had been treated. 511. Respondent violated Section 766.111, Florida Statutes, by ordering, procuring, providing, or administering unnecessary diagnostic tests not reasonably calculated to assist him in arriving at a diagnosis and treatment of the patient’s condition, in that on or about February 17, 1994 and June 7, 1994, Respondent inappropriately employed thermography on Patient L.S.,. as both a preoperative test to allegedly confirm pathology, and as a postoperative test to allegedly confirm the success of the surgical procedures. 512. Respondent inappropriately employed and billed for thermography, an unnecessary y diagnostic test not reasonably calculated to assist his diagnosis and treatment of Patient L.S. 513. Respondent inappropriately billed for discectomy with a transpedicular approach as ‘performed on Patient L.S. on or about February 17, 1994, and June 7, 1994, in that Respondent did not employ a transpedicular approach in in the performance of these surgeries. 4 Respondent falsely: described Performing a _ discectomy with a transpedicular approach on Patient L. s. uring surgeries of on or ‘about February 17, 1994, and June 7, 1994, in that Respondent did not st employ a transpedicular approach in the performance of these surgeries. 122 - t ne rer Fs caaliaiulitictianiteeaaie Riba catie AEE COUNT FIFTY-NINE 515. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), and ; four hundred eighty (480) through five hundred fourteen (514), as if fully set forth herein this Count Fifty-Nine. 516. Respondent made deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employed a trick or scheme in the practice of medicine, in that Respondent described performing a discectomy with a transpedicular approach on Patient L.S. during surgeries of on or about February 17,1994, and June 7, 1994, when Respondent did not perform a discectomy with a transpedicular approach. 517. Based on the foregoing, Respondent violated Section 458.331(1)(k), Florida Statutes, by making deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a tick or scheme i in n the practice of medicine. COUNT SIXTY 518. Petitioner realleges and incorporates paragraphs one (1) through eleven (11), four hundred ei ghty (480) through five hundred fourteen (514), and five hundred sixteen (516), as if fully set forth herein this Count Sixty. 519. Respondent exercised influence on Patient L.S. to exploit her for financial gain in one or more of the following ways: by inappropriately employing and billing for thermography, an unnecessary diagnostic test not reasonably calculated to assist in the diagnosis and treatment discec' omy | or about February 17, 1994, and June 7, 1994, when R spondent did not perform a discectomy with a transpedicular approach. 123 transpedicular approach as performed on weeps see PRR Sr come RN “ene SiR ferns arent i 520. Based on the foregoing, Respondent violated Section 458.331(1)(n), Florida Statutes, by 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. \ COUNT SIXTY-ONE _ 521. — Petitioner realleges and incorporates paragraphs one (1) through eleven (11), four = hundred ei ighty (480) through five Thindred fourteen n (14), five hundred sixteen (516), and five . hundred nineteen (5 19), as if fully set forth herein t this Count Sixty-One. 522. Respondent failed to perform a statutory or legal obligation placed upon a licensed physician, in that Respondent employed thermography, an unnecessary diagnostic test not reasonably calculated to assist in the diagnosis and treatment of Patient LS., in violation of Section 766.1 11, Florida Statutes. 523. Based on the foregoing, Respondent has violated Section 458. 331(1)(g), Florida Statutes, s, by failing to perf any statutory or r legal obligation placed upon a licensed physician. _ COUNT SIXTY-TWO ioner realeges and incorporates Paragraphs one @ through el eleven (11), four e hundred eighty (480) through fiv ive » hundred fourteen 614), five hundred sixteen n (516); five hundred nineteen (519), and five hundred twenty-two (522), as if fully set forth herein this Count Sixty-Two. 124 Coe ae eee Ltt gre te i rt & # Fy ba 525. Respondent failed to practice medicine within the acceptable level of care in the care and treatment of Patient L.S., in one or more of the following ways: by performing multiple surgeries and diagnostic procedures on Patient L.S. during the period of in or about December 1993, through June 1994, which were not necessary or medically indicated; by repeatedly performing additional surgeries during the aforementioned time period without waiting an appropriate period for recovery by Patient L.S., and which were not necessary or medically indicated; by inappropriately using operative thermography on or about February 1 17, 1994, and June 7, 1994, as a means of determining the existence of pathology in the spine, as well as the success of surgical procedures in sweating the pathology; by using single level operative discography as a means of reproducing pain for the purpose of verifying the appropriate level for spine surgery; by performing percutaneous cervical discectomy on Patient L.S. on or about December 16, 1993, January 13, 1994, and May 11, 1994; and by inappropriately performing multiple surgeries on Patient LS., when Patient LS. suffered chronic depression for which she had been treated. 926. Based « on the foregoing, Respondent v violated Section 458.331(1)(t), Florida “Statutes, by fling to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and Circumstances. : COUNT SIXTY- THREE 527. Petitioner roalleges and incorporates paragraphs one (1) through eleven (11), four hundred eighty (480) through five hundred fourteen (514), five hundred sixteen (516), five hundred nineteen (519), five hundred twenty-two (522), and five hundred twenty-five (525), as if , fully set forth herein this Count Sixty-Three. more fy e = 528. Respondent failed to keep medical records justifying the course of treatment of Patient L.S., in one or more of the following ways, in that the record: failed to document a medical necessity for surgeries and diagnostic procedures performed by Respondent during the period of in or about December 1993 through June 1994; failed to document a clear treatment plan for Patient L.S. in that the record failed to establish a correlation between the. ongoing clinical symptoms of Patient L.S. and the imaging studies of on or about July 17, 1993, November 8, 1993, December 23, 1993, January 7, 1994, February 8, 1994, and April 13, 1994; and/or contains conflicting operative and examination results for Patient L.S.; falsely described the lumbar discectomies of on or about February 17, 1994, and June 7, 1994, as having been performed with a transpedicular approach; and failed to document a justification for performing multiple surgeries on Patient L.S., given her medical history of depression. _ 529. Based on the forgoing, Respondent violated Section 458. 331(1)(m), Florida Statutes, by failing to > keep written medical records justifying the course of treatment of the ; patient, including, but not | ! imited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations. 126 ge WHEREFORE, the Petitioner respectfully requests the Board of Medicine enter an order imposing one or more of the following penalties: ‘permanent revocation or suspension of the Respondent’s license, restriction of the Respondent’s practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, the assessment of costs related to the investigation and prosecution of this case, other than costs associated with an attorney’s time, as provided for in Section 456.072, Florida Statutes, and/or any other relief that the Board deems appropriate. SIGNED this [2h _ day of 2001. Robert G. Brooks, M.D., S _ Nancy Snurkowski Chief Attorney, Practitioner Regulation COUNSEL FOR DEPARTMENT: Britt Thomas Senior Attorney Agency for Health Care Administration DEPARTMENT OF Hi P. O. Box 14229 DEPUTY CLERK 3 Tallahassee, Florida 32317-4229 CLERK Viki Re kene n Florida Bar # 0962 699 & BLT/KMJ e DATE —o [ia fol PCP: June 11, 2001 : PCP Members: Ashkar, Glotfelty, Rodriguez 127

Docket for Case No: 01-003892PL