Sep 19 2007 16:38 SEP-19-2087 16:28 FL DEPT OF HEALTH 856 488 1855 P.a2 @ ® STATE OF FLORIDA DEPARTMENT OF HEALTH DEPARTMENT OF HEALTH, , PETITIONER, V. 7 CASE NO. 2006-04872 RICHARD GARDNER, M.D., RESPONDENT. / ‘ ADMINISTRATIVE COMPLAINT COMES. NOW, Petitioner, Department of Health, by and through its undersigned counsel, and files this Administrative Complaint before the Board of Medicine against Respondent, Richard Gardner, 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 physician within the state of Florida and was issued license number ME 13623. 2\PSU\Medical\Allisom D\Cases\Gardner 06-04872\AC.doc 1 LAVA A Sep 19 2007 16:39 SEP-19-2087 16:28 FL DEPT OF HEALTH 856 488 1855 P.@3 3, Respondent's address of record is 5785 Riverside Drive, Cape Coral, Florida 33904. 4. Respondent is board certified in orthopaedic surgery by the American Board of Orthopaedic Surgery. 5, On or about October 15, 2003, Respondent began working at Winn Army Community Hospital (Winn) in Ft. Stewart, Georgia. 6. Winn is an Army hospital which provides care to active-duty and retired military personnel. 7. Respondent worked at Winn from on or about October 15, 2003 until his termination on or about October 31, 2003. 8, Winn hired Respondent to assist with patient care and a backlog of surgical cases, ninety percent of which were arthroscopic reconstructive procedures. 9, When Respondent applied for a position at Winn, he represented on his application that he was able to perform all the required orthopaedic procedures for the position. 10. Despite his representations on his application, once at Winn, Respondent Was unable to perform a number of the requested procedures without the supervision of another surgeon. J:\PSU\Medical\Allison D\Cases\Gardner 06-04872\AC.doc 2 Sep 19 2007 16:39 SEP-19-2087 16:28 FL DEPT OF HEALTH 856 488 1855 P.a4 e e 11. When Respondent was asked to perform an anterior cruciate ligament reconstruction, Respondent asked if he could watch another physician perform the surgery before he did one. Respondent told the supervising physician that it had been several years since he performéd this proceduré. | | 12. A’ physician assistant at Winn reported that Respondent answered medical questions in a vague manner. Respondent was unfamiliar with sports medicine rehabilitation protocols and would suggest using surgical procedures used twenty or thirty years ago. 13. In addition to his lack of clinical ability, during the period Respondent ‘was at Winn, the hospital staff questioned whether Respondent could physically perform a surgery due to possible physical impairment. | 14, On or about October 20, 2003, Respondent assisted in a surgery and was seen with hand tremors. 15, In another surgery, during the period he was at Winn, Respondent had 2 constant hand tremor and dropped instruments several times. J:APSU\Medical\Allisan D\Cases\Gardner 06-04872\AC. doe a Sep 19 2007 16:39 SEP-19-2887 16:21 FL DEPT OF HEALTH 856 488 1855 P85 16. During the period Respondent was at Winn, the hospital staff also became concerned that Respondent was suffering from a mental impairment due to his erratic and strange behavior. 17. On or about October 14, 2003, Respondent was processed to” begin his employment at Winn. When getting processed, Respondent took an unusual interest in a phone book for the Ft. Stewart Army Base. 18. The Winn staff told Respondent that he could not have the phone book, s0 instead, he surreptitiously removed the phone book. 19. When the Winn staff discovered Respondent took the phone book, they asked him to return it. Respondent returned the phone book within a few days. 20. During Respondent’s employment at Winn, Respondent repeatedly took pictures of patients and their x-rays without their consent. 21. During Respondent’s employment at Winn, Respondent also took pictures of the operating room and the exterior of the hospital without permission, 22. During Respondent’s employment at Winn, Respondent offered to perform breast augmentation surgery and “tummy tucks” on female staff members. J:\PSU\Medical\Allisor, D\Cases\Gardner 06-04872\AC doc 4 Sep 19 2007 16:40 SEP-19-2087 16:21 FL DEPT OF HEALTH 856 488 1855 P.@6 23. These procedures are considered to be outside Respondent's area of expertise as an orthopaedic surgeon. 24. Out of concerns that Respondent misrepresented his abilities in his application;and was possibly suffering from a mental and/or physical impairment, Winn administrators terminated Respondent's employment contract on or about October 30, 2003. 25. When Respondent left Winn on or about October 30, 2003, he told a patient not to have surgery at Winn, because she would never walk again. | 26. On or about November 8, 2003, Respondent’ appeared in a newspaper article in the Cape Coral Daily Breeze. The article reports that Respondent treated hundreds of patients while at Winn. Respondent is pictured in the newspaper caring for a Winn patient. 27. The picture is one Respondent submitted himself and which the Winn Credentials Committee did not believe Respondent obtained a release from the patient to appear in the publication. 28. On or about November 12, 2003, the Winn Credentials Committee suspended Respondent's clinical privileges with the intent to J:\PSU\Medical\Allison D\Cases\Gardner 06-04872\AC.doc § Sep 19 2007 16:40 SEP-19-2087 16:21 FL DEPT OF HEALTH 856 488 1855 Pa? revoke and recommended that Respondent be psychiatrically and medically evaluated as a potentially impaired provider. 29. Respondent never had an evaiuation and did not respond to any of the letters from the Winn Credentials Committee. 30. On or about December 11, 2003, Respondent appeared ina newspaper atticle in the News-Press, where he described his alleged experiences at Winn. Respondent is pictured in the article holding up an x- ray picture from a patient at Winn. 31. While employed at Winn, Respondent was admonished by the staff for taking pictures of patients’ x-rays without permission. 32. On or about February 11, 2004, Winn’s Credentials Committee revoked Respondent's clinical privileges. 33. on or about November 15, 2005, the United States Department of the Army (Army) reported to the Federation of State Medical Boards that Respondent's privileges had been revoked. 34. On or about March 15, 2006, Respondent provided a written response to the Department's investigation. Respondent alleged that he voluntarily resigned his position at Winn and even after he resigned, Winn J:\PSU\Medical\Allisian D\Cases\Gardner 06-04872\AC.dac 6 Sep 19 2007 16:40 SEP-19-2087 16:22 FL DEPT OF HEALTH 856 488 1855 P.@8 called him baick to the hospital because of a continued shortage of orthopaedic surgeons. 35. Respondent's assertions differ greatly. from the multiple statements obtained from Winn personnel. 36. In his letter to the Department, Respondent exaggerates his importance td the hospital. Respondent alleges that his work at Winn ‘impressed the media, press, and congressmen that the backlog of patients and over-reaching/understaffing was now under control.” 37. | There is no evidence that Respondent assisted with the patient backlog at Winn. The staff at Winn reported that Respondent only attended to twenty-seven patients while at Winn, and he often could not be found to assist in patient care. 38. On or about February 25, 2007, Respondent sent a letter with attachments to the Department wherein he reiterated his position that he voluntarily quit Winn after he personally saved the hospital from closure through what he describes as his experience, knowledge and intelligence. 39, On or about June 11, 2007, Respondent was evaluated by a Department approved psychiatrist. 1:\PSU\Medical\Alligan D\Cases\Gardner 06-04872\AC.doc 7 Sep 19 2007 16:40 SEP-19-2087 16:22 FL DEPT OF HEALTH 856 488 1855 P.@9 40. Duting the evaluation, Respondent reiterated that he voluntarily resigned from: Winn because of intolerable conditions at the hospital. Respondent told the evaluator that Winn retaliated against him by atieging that he was impaired. , 41. The evaluator described Respondent's history of events that led _ to his termination from Winn as vague. 42. At the evaluator’s office, Respondent submitted to the Mini Mental State Examination (MMSE), which is a brief questionnaire used to assess cognitive mental status. The MMSE assesses orientation, attention, immediate and short-term recall, language, and the ability to follow simple verbal and written commands. . 43. In: order to effectively practice medicine, Respondent would need to score thirty points on this test. 44, Out of a possible score of thirty points, Respondent scored twenty-six. 45, As, part of the mental status examination, the evaluator asked Respondent to count backward from one-hundred by serially subtracting seven. J:\PSU\Medical\Allison D\Cases\Gardner 06-04872\AC.dac 8 Sep 19 200? 16:41 SEP-19-2887 16:22 FL DEPT OF HEALTH 856 488 1855 P.ia 46. Respondent had extreme difficulty with this exercise. Respondent got the first two answers correct, but then stopped for twenty to thirty seconds between some calculations. 47. Despite the long pauses, Respondent still got several calculations wrong. 48. The evaluator diagnosed Respondent with Cognitive Disorder NOS. Respondent's prognosis is guarded and he is unlikely to improve. 49. Given all of her observations, the evaluator opined that Respondent is not able to practice as a medical doctor with reasonable skill and safety to patients. | 50. The evaluator recommended that Respondent have a full , neuropsycholagical battery of testing, including a dementia workup, and he should abstain from the use of mood altering substances such as alcohol. 51. the evaluator further recommended that Respondent be evaluated by a program such as the Florida CARES Program to determine if he is capable of safely practicing medicine in any capacity. 52. Section 458.331(1)(s), Florida Statutes, (2003-2007) provides that being unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, JAAPSU\Medieal\Allison D\Cases\Gardner 06-04872\AC.doc 9 Sep 19 200? 16:41 SEP-19-2087 16:22 FL DEPT OF HEALTH 856 488 1855 P.ii or any other type of material or as a result of any mental or physical condition constitutes grounds for disciplinary action by the Board of Medicine. : 53. As set forth above, Respondent is unable to practice medicine with the requisite skill and safety to patients by reason of his cognitive impairment, 54. Based on the foregoing, Respondent violated Section 458.331(1)(s), Florida Statutes, (2003-2007) by being unable to practice medicine with reasonable skill and safety to patients due a mental illness. WHEREFORE, Petitioner respectfully requests that the Board of Medicine entet an order imposing one or more of the following penalties: permanent revocation or suspension of Respondent's license, restriction of practice, impésition of an administrative fine, issuance of a reprimand, placement. of Respondent on probation, corrective action, refund of fees billed or collected, remedial education and/or any other relief that the Board deems appropriate. J:\PSU\Medical\Allisori D\Cases\Gardner 06-04872\AC.doc ‘ 10 Sep 19 200? 16:41 SEP-1s-2847 16:25 FL DEPT OF HEALTH 856 488 1855 P.i2 SIGNED this /“#*x day of Kes, —_ , 2007. Ana M. Viamonte Ros, M.D., M.P.H. State Surgeon General ison M. Dudley Assistant General Counsel Florida Bar # 159913 DOH Prosecution Services Unit 2 ED 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL 32399-3265 F HEALTH ’ CEPA TEPUTY CLERK (850) 245-4640 Ext. 8106 Office oLenie = tN (850) 245-4680 Facsimile oate__ 72001 PCP: August 17, 2007 PCP Members: Leon, Rosenberg & Beebe J:\PSU\Medical\ allison: D\Cases\Gardner 06-04872\AC. doc 11 Sep 19 200? 16:41 SEP-19-2087 16:23 FL DEPT OF HEALTH 856 488 1855 P.13 NOTICE OF RIGHTS Respondent has the right to request a hearing to be conducted in accordance with Section 120.569 and 120.57, . Florida Statutes, te be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena duces tecum issued on his or her behalf if a hearing is requested. NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incurred costs related /to the investigation and prosecution of this matter. Pursuant to Section 456.072(4), Florida Statutes, the Board shall assess costs related to the investigation and prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent in addition to any other discipline imposed. JA\PSU\Medical\Allison iD\Cases\Gardner 06-04872\aC.doc 12

Docket for Case No: 07-004312PL