Jun 12 2006 14:13 Jun 12 2006 14:11 P.05 STATE OF FLORIDA DEPARTMENT OF HEALTH DEPARTMENT OF HEALTH, PETITIONER, Vv. CASE NO, 2001-13321 ALLEN C. DUKES, M.D, RESPONDENT. a DMINISTRATI MPLAI Petitioner, Department of Health, by and through undersigned counsel, files this Administrative Complaint before the Board of Medicine against Respondent, Allen C. Dukes, M.D., and in support thereof alleges: 1. Petitioner is the state department charged with regulating the practice of Medicine pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 458, Florida Statutes. | 2. At all times material to this Complaint, Respondent was a licensed medical doctor within the state of Florida, having been Issued license number ME41243. 3. Respondent's address of record is 1889 Professional Park Circle, Suite 40, ‘Tallahassee, Florida 32308-4511. | 4, At all times material to this complaint, Respondent was L.K.s physician of record. . 5, On or about June 28, 2001, LK, was seen by Respondent for an initial office visit on a referral from the Division of Vocational Rehabilitation (DVR) with = Jun 12 2006 14:13 Jun 12 2006 14:12 P. O06 reported complaints of neck pain with radiation into the left shoulder and down the left arm, associated with numbness to the three middle digits of the left hand. - 6. At this initial visit, L.K. provided a copy of the MRI performed on: June 27, 2001, previously authorized by DVR. The MRI identifies C6-7 left paracentral. disc herniation, which impresses upon the spinal cord and partially comprises the left C6-7 neural foramen. At the C5-6 level, there is no evidence of diffuse bulging or focal hemiation. 7. Based on the MRI and L.K’s complaints, Respondent recommended surgery at the C6-7 level. Respondent scheduled LK. for surgery on July 6, 2001, at Tallahassee Community Hospital (TCH), Tallahassee, Florida. B. Respondent performed surgery on L.K. on July 6, 2001, at TCH. The operative record from TCH, dated July 6, 2001, and signed by Respondent, indicates that Respondent performed an anterior cervical discectomy with fusion at C6-7 level, using autogenous Iliac bone. The intraoperative findings reflect a herniated nucleus pulposus C6-7 with left C7 root compression. | 9, During @ post-operative office visit with Respondent on July 12, 2001, LK, complained of significant radicular pain. According to Respondent, L.K. had subsequent office visits on July 16, and July 19, 2001, where L.K. complained of intermittent numbness In his left arm. However, Respondent's office record for L.K. ‘does nat contain notes from either of these visits. 10. At the July 16,2001, office visit, L.K. was given an order for a Gadolinium enhanced MRI of the C-spine, which was obtained the following day on July 17, 2001. Jun 12 2006 14:13 Jun 12 2006 14:12 P.O? 41, The MRI shows a left C6-7. herniated disc with compression of the left C7 nerve root. There was evidence of an anterior approach at C5-6, but no surgery performed at C6-7 level, contrary to Respondent's operative record for L.K. dated July 6, 2001, and despite Respondent's intraoperative findings of a herniated disc at C6-7 and a left C7 root compression. . 12, Respondent performed surgery on L.K. on July 6, 2001, at the C5-6 level and not at C6-7 level. L.K. consented to surgery at the C6-7 level, but did not consent to surgery at C5-6 level. Respondent's office notes do not reflact the wrong site surgery or that LK. was ever informed that the July 6, 2001 surgery was performed at the wrong site. . 13, Respondent's recollection of an office visit on July 19, 2001, is that Respondent informed L.K. that the july 17, 2001 MRI showed some remaining disc protrusion at the C6-7 level with left lateral recess narrowing at C6-7. Based on L.K’s continued complaint of left arm pain and numbness, and another review by Respondent of the July 17, 2001-MRI, Respondent scheduled L.K. for a second surgery for July 26, 2001, at TCH. Again, Respondent failed to inform L.K, that the possible reason for L.K’s continued radiculopathy was that the first surgery was performed at the 65-6 level instead of C6-7. 14, The pre-operative orders dated July 25, 2001, and signed by Respondent, indicate that a posterior cervical laminectomy C6, C7 with C7 nerve root decompression was the planned surgical procedure, the same as the first surgery of July 6, 2001. 15. LK. was admitted to TCH on July 26, 2001, for the second surgical procedure. L.K’s operative record from TCH dated July 26, 2001, and ‘signed by Jun 12 2006 14:14 Jun 12 2006 14:12 P. 08 | Respondent, indicates that Respondent performed a posterior cervical laminotomy with jeft C7 nerve root decompression. i . 16. _L.K’s radiculopathy following the first two surgeries remained unchanged. The herniated disc at C6-7, identified on the July 17, 2001 MRI, was not addressed during the second operative procedure on July 26, 2001. 17. On August 7, 2001, LK. was seen for a post-operative checkup. Based on, L.K’s report of continuing numbness and pain in his left arm, Respondent again reviewed L.K’s July 17, 2001 MRI and recommended L.K. undergo a third surgety which was scheduled for August 10, 2001, at TCH. Respondent reasoned to L.K, that the bone graft from the first fusion surgery had migrated and was probably compressing the C7 nerve root, which had not been adequately relieved by the posterior cervical procedure of July 26, 2001. However, Respondent's pre-operative orders for the scheduled August 10, 2001 surgery was anterior cervical discectomy with fusion C6-7, the same as the pre-operative orders for the July 6, 2001 surgery. 18. On August 10, 2001, L.K. was admitted to TCH, The TCH operative record dated August 10, 2001, and signed by Respondent, indicates that the procedure was a revision, anterior cervical discectomy with fusion at C6-7, The C6-7 anterior cervical discectomy was not operated on during the July 6, 2001 surgery, 50 @ revision would have been again at the C5-6 level. Again, the herniated disc identified on the July 17, 2001 MRI was not addressed during the third surgery. Additionally, no notation was made on the operative record of a bone graft migration, the reason Respondent gave to L.K, for the third surgery. Jun 12 2006 14:14 Jun 12 2006 14:13 P.09 19. On August 16, 2001, L.K,. was seen for a post-operative office checkup with Respondent and reported continuing numbness and pain in his lef acm, Respondent next saw L.K. on August 21, 2001, wherein L. K. expressed a complaint of ' decreased réstriction of motion in his right shoulder joint. At L.K’s next, and. last, visit with Respondent on September 4, 2001, LK. complained of a pulsating sensation in his left arm when he held his head in a certain position. 20. L.K. was subsequently referred by DVR to a certified neurosurgeon, An MRI performed on September 27, 2001, shows a left-sided C6-7 hernlated dist. There is no evidence of operations around the C6-7 level. The disc has not been violated anteriorly, and there is no obvious evidence of decompression. There are some postoperative changes at the C5- -6 disc, | 21, ACT scan of the cervical spine was also performed on L.K. on September 27, 2001, and shows some postoperative changes in the C5-6 disc space. » There is evidence of a bone plug anteriorly at the C5- 6 level, but no violation of the: 6- 7 disc space. The impression Is a left C7 radiculopathy secondary to C6-7 herniated disc. 22, According to L.K’s statement and Respondent's office notes. for LK., Respondent did not adequately inform L.K. of the reason for the second:and third surgeries nor did Respondent inform LK. that the three surgeries performed were at the wrong level. 23. Respondent performed wrong site surgery on L.K. without LKis informed consent. LK. consented. to the July 6, 2001, July 27, 2001, and August 10, 2004 surgeries for the C6-7 level, but did not consent to three wrong-site surgeries at the C5- 6 level. Jun 12 2006 14:14 Jun 12 2006 14:13 P.10 COUNT ONE 24. Petitioner re-alleges and incorporates paragraphs one (1) through ‘twenty three (23) as if fully set forth in this count. : 25. Section 456.072(1)(aa), Florida Statutes (2001), provides that attempting to perform health care services on the wrong patient, a wrong-site procedure, a wrong procedure, or an unauthorized procedure or a procedure that is medically unnecessary or otherwise unrelated to the patient’s diagnosis or medical condition subjects d health care practitioner to discipline by the Board of Medicine. 26. Respondent is licensed pursuant to Chapter 458, Florida Statutes, and isa health care practitioner as defined in Section 456.001(4), Florida Statutes. 27, Respondent performed wrong site surgery on LK. on July 6, 2001, by performing the anterior approach at C5-6 level instead of C6-7 level as identified on the June 27, 2001 MRI. The surgery performed at C5-6 was unnecessary and unrelated to L.K’s condition. The MRI shows a herniated disc at C6-7 level, and this level was not addressed during the July 6, 2001 surgery. 28. Based on the foregoing, Respondent violated Section 456.072(1)(88), Florida Statutes (2001), by performing or attempting to perform health care services on the wrong ‘patient, a wrong-site procedure, @ wrong procedure, or an unauthorized procedure or a procedure that is medically unnecessary or otherwise unrelated to the patient's diagnosis or medical condition. Jun 12 2006 14:14 Jun 12 2006 14:13 P.11 COUNT TWO 29, Petitioner re-alleges and incorporates paragraphs one (1) through twenty three (23), twenty five (25) and twenty six (26) as if fully set forth In this count, 30, Respondent performed wrong site surgery on-L.K. on July 26, 2001. The _ operative notes reflect Respondent performed a posterior cervical laminotomy with left C7 nerve root decompression. The procedure was performed at the C5-6 level instead of C6-7 level, as identified on the July 17, 2001 MRI. The surgery performed’ at C5-6 was Unnecessary and unrelated to L.K’s condition. The July 17, 2001 MRI ‘shows a herniated disc at C6-7 level, and this level was not addressed during the July 26, 2001 surgery. 31. Based on the foregoing, Respondent violated Section 456.072(1)(aa), Florida Statutes (2001), by performing or attempting to perform health care setvices on the wrong patient, a wrong-site procedure, a wrong procedure, or an unauthorized procedure or a procedure that is medically unnecessary or otherwise unrelated to the patient's diagnosis or medical condition. COUNT THREE 32. Petitioner re-alleges and incorporates paragraphs one (1) through twenty three (23), twenty five (25) and twenty six (26) as If fully set forth in this count 33. Respondent performed wrong site surgery on LK. on August 10, 2001. L.K’s operative notes, signed by Respondent, reflect a revision, anterior: cervical laminotomy with fusion at C6-7. The procedure was performed at the C5-6 level instead of C6-7 level as identified on the July 17, 2001 MRI. The surgery performed: again at Jun 12 2006 14:15 Jun 12 2006 14:13 P.12 C5-6 was unnecessary and unrelated to L.K/s condition. The MRI shows a herniated disc at C6-7 level, and this level was not addressed during the August 10, 2001 surgaiy 34, Based on the foregoing, Respondent violated Section 456,073(4)(@8), Florida Statutes (2001), by performing or attempting to perform health care services on the wrong patient, a wrong-site procedure, a wrong procedure, or an unauthorized procedure or a procedure that is medically unnecessary or otherwise unrelated to the patient’s diagnosis or medical condition. COUNT FOUR 35. Petitioner re-alleges and incorporates paragraphs one (1) through twenty three (23) as if fully set forth in this count. | 36.. Section 458.331(1)(m), Florida Statutes (2001), provides that failing to keep legible medical records that justify the course of treatment of the: patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations, subjects a licensee to discipline by the Board of Medicine. | 37. Respondent's records do not reflect that L.K, was informed ‘that the surgery on July 6, 2001, was performed at the wrong level, nor do the records reflect that L.K. was fully Informed of the reason for the second and third surgeries, Respondent’s records falled to adequately document the course of treatment for LK. Respondent does not have office notes for L.K's visits on July 16, 2001, and July 19, 2001. The operative notes dated July 6, July 17, and August 10, 2001, indicate that surgery was performed on L.K. at the C6-7 level when, in fact, Respondent performed surgery at the C5-6 level. Jun 12 2006 14:15 Jun 12 2006 14:14 P.13 38, Based on the foregoing, Respondent has violated Section 458. 3342 Florida Statutes, by failing to keep written medical records justifying the course -of treatment of patient L.K., Including, but not limited to, patient histories; examination results; test results; and reports of consultations. COUNT FIVE | 39, “Petitioner realleges and incorporates paragraphs one (1) through twenty i three (23) as If fully set forth in this count. 40. Section 458.331(1)(p), Florida Statutes (2001), provides that petforming professional services which: have not been duly authorized by the patient or dent, or his or her legal representative constitutes grounds for disciplinary action by the Board of Medicine. 41. Respondent performed wrong site surgery on LK. on July 6, 2001, July 26, 2001, and August 10, 2001, without L.K’s informed consent or authorization. 42, Based on the foregoing, Respondent has violated Section 458.331(1)(), Florida Statutes, by performing professional services which have not been duly authorized by the patient or client, or his or her legal representative. COUNT SIX 43, Petitioner realleges and incorporates paragraphs ‘one (1) through twenty three (23) as If fully set forth in this count. 44. Section 458.331(1)(t), Florida Statutes (2001), provides that gross or repeated malpractice or the fallure to practice medicine with that level of care, skill, and treatment which ig recognized by a reasonable prudent similar physician ‘as being Jun 12 2006 14:15 Jun 12 2006 14:14 P14 acceptable under similar conditions and circumstances subjects a licensee to distiplinary action by the Board of Medicine, : - 45. Respondent failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonable prudent similar physician as being acceptable under similar conditions and circumstances in one or more of the following ways: : a. Respondent performed wrong site surgery on LK. on July 6, July 26, and August 10, 2001; b, the three surgeries were performed without L.K.'s informed consenit; c. Respondent's office notes did not reflect that LK. was informed that the three surgeries were performed at the wrong site; : d. Respondent's office records for L.K, do nat contain notes from the office visits on July 16 and July 19, 2001; and, e the operative notes of July 6, July 17, and August 10, 2001, signed by Respondent, inaccurately reflect that Respondent performed surgery at the C6-7 level. 46, Based on the foregoing, Respondent has violated Section 45.331(1)(t), Florida Statutes (2001), by committing repeated malpractice and by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonable prudent similar physician as being acceptable under similar coneltons and uf circumstances. 10 Pi iy Jun 12 2006 14:15 Jun 12 2006 14:14 P.15 WHEREFORE, the Petitioner respectfully requests that the Board of Medicine enter an order imposing one or more of the following penalties: permanent revocation or suspension of Respondent's license, restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, corrective action, refund of fees billed or collected, remedial education and/or any other relief that the Board deems appropriate. sicnep this_// day of agus, 2003. John O. Agwunobi, M.D., MBA.) Secretary, Department of Health, FILED DEPARTMENT OF Assistant General Counsel DEPUTY CLERK DOH Prosecution Services Unit ouerk Noathen Coleman 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL 32399-3265 DATE o3 Florida Bar # 0949027 (850) 487-9632 (850) 414-1989 FAX SID | Reviewed and approved by:@77-7__ (initials) y 1 03 (date) pcp: August 3, 2Ob3 : PCP Merbers Fuad Ashkar M.D (chairperson), Manuel Coto, MD.* Sohn Beebe 11

Docket for Case No: 06-002033PL