Tremor, Hearing Officer with the Division of Administrative Hearings, in Room 931 of the Broward County Courthouse, Ft. Lauderdale, Florida, on May 9, 1980. The issue for determination was whether disciplinary action should be taken against respondent for the reasons set forth in the administrative complaint as amended.
For Petitioner: William B. Wiley
McFarlain, Bobo, Sternstein, Wiley and Cassedy, P.A.
Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found:
On June 27, 1977, respondent was charged by Information with committing the felony of leaving the scene of an accident on February 24, 1977. The accident resulted in injuries to a seventy-nine (79) year old woman, Grace Heck, who died nine (9) days later as a consequence of those injuries. Respondent pled nolo contendere to that charge and, on November 15, 1977, Judge Thomas M Coker, Jr, entered an order withholding adjudication of guilt and placing respondent on probation for a period of three (3) years, with the specific condition, among nine others, that he pay restitution for the medical expenses of the accident victim. The term of probation was later modified to one year to conform to the law.
On or about July 10, 1978, respondent's probation officer filed an Affidavit of Violation of Probation stating nine violations of the terms of respondent's probation. These violations included failure to submit required
reports and pay costs for supervision, failure to make restitution for the accident victim's medical expenses, carrying a concealed firearm, operating a motor vehicle on two occasions while his license was suspended, careless driving, and failure to reduce the speed of his automobile resulting in the colliding with and subsequent death of a pedestrian, John Kelly Wilkens.
Effective July 13, 1978, Judge Coker revoked respondent's probation imposed for the offense of leaving the scene of an accident and sentenced respondent to one year in the county jail. Pursuant to a motion for mitigation, Judge Coker on August 18, 1978, set aside the order of adjudication of guilt and the one year sentence, and ordered that respondent be placed on a new probation for a period of one year. The original terms of probation were imposed, along with the conditions that respondent not resume the practice of medicine until an examining board determined his fitness and that he submit to a psychiatric evaluation and treatment, if required.
On or about July 14, 1978, another Information was filed against respondent for the third degree felony offense of carrying a concealed weapon. After a plea of nolo contendere, adjudication of guilt was withheld and respondent was placed on probation for a period of five years by Judge Coker on January 24, 1979.
Independent evidence was adduced by the petitioner with respect to both the hit-and-run accident and the carrying a concealed firearm charge. A passenger in respondent's car on February 24, 1977, testified in her deposition that respondent was driving his car, ran a red light in Fort Lauderdale and collided with a turning car containing two elderly persons. Respondent immediately left the accident scene, drove to a closed service station and stayed there for a few minutes, then drove to a school parking lot and left the car there. The deponent and respondent then walked to respondent's home, picked up another car and drove to West Palm Beach where respondent played tennis. Two officers with the Fort Lauderdale Police Department testified that their investigation of the February 24, 1977, accident confirmed that respondent was the driver of the hit-and-run vehicle. The officer who arrested respondent for carrying a concealed weapon testified by way of deposition that in June of 1978, she found respondent in his car with a fully loaded and cocked automatic weapon on the floor and live ammunition matching the weapon in his pocket.
Respondent has not reported to his probation officer since October of 1979. An Affidavit of Violation of Probation has been filed against the respondent and respondent is presently the subject of an arrest warrant. His present whereabouts are unknown to his probation officer and he is considered a fugitive from justice.
At the request of Judge Coker, Dr. Arnold H. Eichert, a psychiatrist, examined respondent on September 11, 1979, It was Dr. Eichert's opinion that respondent suffered from paranoid schizophrenia, Dr. Eichert seriously doubted respondent's ability to practice medicine at that time. Inasmuch as respondent had violated his probation and failed to appear at this hearing, Dr. Eichert opined that such conduct and poor judgment was consistent with his earlier diagnosis that respondent would be unable to practice medicine with reasonable skill and safety to patients.
Respondent was expelled from the Broward County Medical Association on July 7, 1977, for the reason that his medical practice was detrimental to the profession, his patients or the community. No appeal was taken from this action. On November 10, 1977, respondent's medical staff privileges at
Plantation General Hospital were suspended for his lack of attendance at general staff and departmental meetings.
On September 30, 1977, the State Committee on Peer Medical Utilization Review (PMUR), which analyses physician treatment of Medicare patients for Blue Shield, found that respondent was guilty of "maximal overutilization of office visits, injections and laboratory procedures." This finding was made after a review of the medical records of approximately forty-five (45) of respondent's patients during the 1974 year. The charts were reviewed by Blue Shield, the Florida Medical Foundation, Inc. and a county peer review committee. Statistically, a review of respondent's patient charts illustrated that respondent was far beyond the utilization screening parameters as compared to other physicians in the Broward County area engaged in general practice. Specifically, the norm for visit days per patient for physicians doing general practice in the area was five days. The respondent's records indicated eight visit days per patient, or sixty percent over the screening parameter. The average number of injections per patient was 2.44. Respondent's injections per patient amounted to 17.7, or 620.08 percent over the parameter. Respondent's laboratory procedures per patient per year were 6.24, while the screening parameter was 4.96, representing 25.81 percent overutilization. By way of deposition, Dr. Frank Hodnette, Chairman of the State Committee on PMUR, testified that such statistics denote that respondent was "way out of bounds as far as his utilization of the medicare benefits as related to . . . the area of office visits, injections and laboratory work." After reviewing respondent's patient's medical charts, the various reviewing committees further concluded that respondent's practice deviated from the standard of acceptable daily practice and was not consistent with what is considered as standard good care of medical practice.
A member of the Broward County Medical Association's PMUR Committee that reviewed respondent's records testified at the hearing as an expert in family and general practice. Dr. Nancy La Fuente reviewed several medical charts and found no medical justification for certain injections, multiple injections of the same substance, and an overall gross abuse of injections, particularly of vitamins. Dr. La Fuente concluded that respondent's practice significantly deviated from the standard of acceptable and prevailing medical practice in his area of expertise in Broward County.
CONCLUSIONS OF LAW
By a complaint, as amended, filed prior to July 1, 1979, respondent was charged with violating certain provisions of the then effective Medical Practice Act, specifically Florida Statutes, 458.1201(1)(c), (h), (k), (m), (n), and (p). The Medical Practice Act was amended effective July 1, 1979, and the acts which constitute grounds for disciplinary action are now codified in Section 458.331, Florida Statutes. Inasmush as both the alleged offenses and the complaint occurred prior to the July 1, 1979, amendment, the undersigned concludes that former s458.1201, Florida Statutes (Supp. 1978) is applicable to this proceeding.
The complaint, as amended, contains four counts. The first count sets forth facts which relate to the respondent's conduct with regard to the charge of leaving the scene of an accident and his subsequent violation of the terms of his probation. Upon a careful review of the documentary evidence related to this count, the undersigned concludes that the petitioner has adequately proven a violation of subsection (c) of s458.1201(1) ,Florida Statutes (Supp. 1978). There can be no doubt that the court returned a finding of guilt, even though an
adjudication of guilt was subsequently withheld. The petitioner also alleges a violation of subsection (k) of s458.1201(1), which lists as a ground for discipline the violation of any statute or law relating to the practice of medicine or in part regulating the practice of medicine. Section 316.062, Florida Statutes, requires the driver of a vehicle involved in an accident resulting in injury or death to, among other things, render reasonable assistance to the injured person. Section 316.027 provides that failure to stop and comply with s316.062 constitutes a felony. While it can certainly be argued that a medical doctor has an even greater duty to stop and render aid to an accident victim, the undersigned concludes that the cited provisions of Chapter 316, Florida Statutes, do not directly relate to the practice of medicine or regulate the practice of medicine within the meaning of s458.1201(1)(k).
The facts alleged in Count II of the complaint, as amended, relate to the charge against respondent of carrying a concealed firearm, a third degree felony. Inasmuch as adjudication of guilt was withheld on that charge, and there was no evidence that a finding of guilt was returned, the facts fail to demonstrate a violation of subsection (c) of s458.1201(1).
Count III of the complaint, as amended, charges violations of s458.1201(1)(k) and (p) with respect to the facts that respondent was expelled from membership in the Broward County Medical Association and was suspended from staff privileges at Plantation General Hospital. It is concluded that the petitioner has adequately demonstrated a violation of s458.1201(1)(p).
Finally, Count IV charges violations of s458.1201(1)(k) and (m) based upon the facts surrounding the Peer Medical Utilization Review. The facts amply demonstrate that the respondent has been guilty of unprofessional conduct within the meaning of Florida Statutes (Supp. 1978), s458.1201(1)(m)
In summary, the petitioner has demonstrated by competent, substantial evidence that respondent has violated Section 458.1201(1), subsections (c), (m) and (p), Florida Statutes (Supp. 1978). The petitioner has also adequately demonstrated through the testimony of Dr. Eichert that respondent is unable to practice medicine with reasonable skill and safety to patients by reason of illness, within the meaning of s458.1201(1)(n).
