vs. ) CASE NO. 81-1373
License No. 19787 )
Respondent. )
Pursuant to notice the Division of Administrative Hearings, by its duly appointed Hearing Officer, R. T. Carpenter, held a hearing in this case on January 8, 19, in Bradenton, Florida. The parties were represented by:
For Petitioner: Joseph W. Lawrence, II, Esquire
This matter arose on Petitioner's Administrative Complaint charging that Respondent Min Haing Cho, M.D. (Dr. Cho) made deceptive, untrue or fraudulent representations in the practice of medicine, or employed a trick or scheme in the practice of medicine which did not conform to prevailing standards of treatment in the medical community in violation of Section 458.331(1)(1), Florida Statutes (1979) (F.S.); engaged in gross or repeated malpractice or failed to practice medicine with that level of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, in violation of Section 458.331(1)(t) , and performed procedures which, by the prevailing standards of medical practice in the community, constituted experimentation on a human subject, without first obtaining full, informed and written consent of the patient in violation of Section 458.331(1)(u) , F.S. Respondent is also alleged to have violated the Federal Food, Drug and Cosmetic Act in utilizing a medical device which was unapproved. See Section 458.331(1)(h), F.S. Finally, Respondent is charged with misleading, deceptive, untrue and/or fraudulent advertising in violation of Sections 458.331(1)(d) , (t) , (h) , and (x) , F.S. , and Rule 21M-24.01, Florida Administrative Code (F.A.C.).
The parties submitted proposed findings of fact and conclusions of law. To the extent these proposed findings have not been adopted or incorporated herein, they have been rejected as irrelevant or not consistent with the evidence.
Respondent was issued a license to practice medicine in Florida in 1973, and was so licensed at all times relevant to this proceeding. He received his doctor of medicine degree in Korea in 1946, and a doctor of philosophy degree in physiology and pharmacology in Canada in 1951. His practice combines conventional medicine and acupuncture.
About May, 1980, Respondent contracted with Robert Sample, M.D., to purchase the latter's medical practice in Bradenton. Until the downpayment was made, it was agreed that Respondent would use Dr. Sample's name in referring to the practice and would represent himself and his wife, Dr. Lee (who is also a licensed medical doctor) , as associates of Dr. Sample's. Although Dr. Sample was to retire and leave the area, Respondent agreed to tell patients that Dr. Sample was on vacation.
For a period of one to two months after assuming the practice, the telephone was answered "Doctors Sample, Lee and Cho." Doctor Sample's sign at the entrance to the office was not removed until Respondent obtained a new sign without Dr. Sample's name about 30 days after he began practicing at this location. Although the patients who called or came in to this office were, in fact, misled by the continuing reference to Dr. Sample, there was no evidence to indicate that any patient believed he was to be treated by Dr. Sample.
Wilma Dona Stover was a patient of Dr. Sample's for approximately 2 1/2 years, while also seeing a physician in. Cincinnati, Ohio, for periodic checkups following lung cancer surgery in 1974. On June 16, 1980, she sought the medical advice of Dr. Sample regarding a severe facial rash. Upon telephoning the office of Dr. Sample, she was told by the receptionist that Dr. Sample was out of town, but was asked if she would care to see either of the two doctors: who were now in practice with Dr. Sample. She made an appointment for that day and was seen by Respondent.
After a brief inspection of the rash, Dr. Cho employed a device known as a dermatron machine" to select medication. Respondent explained to Mrs. Stover that by comparing the electromagnetic fields of various medications with that of the body, the best medicine could be chosen. To conduct these tests, Respondent placed a wire on the middle toe of Mrs. Stover's right foot. She held a probe-like device in one hand and in the other hand she held, fan. turn, various medicines enclosed in containers. The medicine chosen was neosporin.
Because of her previous experience with lung cancer, Mrs. Stover questioned Dr. Cho whether the rash could indicate a recurrence of this disease. In response, Dr. Cho again employed the dermatron machine with a connection placed on the middle finger of her right hand. Thereafter, Respondent informed Mrs. Stover that she did not have long. cancer.
Because of her disbelief in these procedures, Mrs. Stover consulted Dr. David Krull, a family practitioner After Physically examining Mrs. Stover (scalp, skin, ears, throat, lungs, heart and abdomen plus laboratory tests- CBC, blood sugar and urine), Dr. Krull prescribed medication for the skin rash. He later performed a series of tests to determine if she was suffering a recurrence of lung cancer.
Mrs. Stover's testimony established that Respondent administered no physical examination or history taking prior to prescribing neosporin for Mrs. Stover's rash. Further, Respondent made no tests to determine whether or not she was suffering a recurrence of lung cancer other than the measurements he made with the dermatron machine. Dr. Krull did not find a recurrence of lung cancer, but was able to make this determination and reassure Mrs. Stover only after a full physical examination which included checking her lungs, lymph nodes, neck and reading her chest x-rays. Another board-certified family practitioner in the Bradenton community, Robert E. Blackwood, M.D., a physician who has practiced in that community for 10 years and who was not associated with the treatment of Mrs. Stover, confirmed the testimony of Dr. Krull concerning the minimum history and physical examination that must occur prior to treating the skin rash and diagnosing the nonrecurrence of lung cancer.
It was stipulated by the Petitioner and Respondent at the formal proceeding in this matter that the dermatron machine utilized in the diagnosis and treatment of Mrs. Stover by Dr. Cho was not registered or approved under the Federal Food, Drug and Cosmetic Act for use as a medical diagnostic device. No written consent for the use of the machine or the diagnostic procedures was obtained from Mrs. Stover by Dr. Cho.
Chris Robbins has resided in Bradenton for several years and was a patient of Dr. Sample's until he retired from his Bradenton medical practice. On July 28, 1980, Robbins injured his back and called the office of Dr. Sample. The telephone was answered, "Dr. Sample, Dr. Lee and Dr. Cho." , He made an appointment and was seen in an examination room by Respondent Dr. Cho who was informed as to how he had injured his back. No medical history was taken nor was a physical examination performed.
Respondent explained that he proposed to treat the disorder through the use of acupuncture, and Robbins agreed Respondent placed needles behind Robbins' ears and injected Vitamin B-12. This treatment alleviated the pain. Respondent then instructed Robbins to pass a magnet up and down behind his ears (to cause an electrical response in the nerve) if the pain recurred, and to return to the office within a week.
On August 4, 1980, Robbins returned as instructed. He had experienced pain in his back during the previous week but use of the magnet had relieved the pain. Respondent administered further Vitamin B-12 shots and instructed Robbins to continue wearing the needles in his ears.
On approximately August 14, 1980, Robbins returner to Respondent's office after experiencing further back par. Respondent administered Vitamin B-
12 shots, and placed small needles behind the knuckles of Robbins' hands, and in his feet. This relieved the pain. However, Robbins returned later the same day with a recurrence off the back pain. Respondent then placed the patient face down on an examination table and injected further Vitamin B-12 shots in his back. Respondent informed Robbins that his back could be dislocated and discussed the possibility of treatment by a chiropractor. At this final visit, Respondent prescribed demerol, 100 mg, 10 tablets for pain. No x-rays were taken during any of these visits.
Robbins continued to experience pain and was thereafter seen by Mario Quintero, M.D., at the emergency room of a local hospital. Dr. Quintero's testimony established that the minimum medical examination which must be conducted by a physician in the treatment of back injury would include x-rays
and range of motion tests. An independent expert., Robert Blackwood, M.D., confirmed this as the minimum medical examination which must be conducted with history as established by Robbins. This minimum medical examination was further confirmed by Dr. Gary Dunlap, the medical expert retained by Dr. Cho.
Dr. Quintero referred Robbins to an orthopedic specialist, Dr. Thomas Sprenger, who administered a physical examination, which included the reading of x-rays and the other hospital reports. He determined that Robbins was suffering from a back sprain and prescribed muscle relaxants and bedrest.
In August, 1980, Kimberly Perdue, 18 months of age, injured her eye with a sharp object. Her grandmother, Jean Harless, took the child to the office of Respondent and his wife, Dr. Lee. Dr. Lee, who has had training in ophthalmology, first examined the injury. She diagnosed a corneal abrasion and determined that intramuscular and oral antibiotics should be utilized together with a topical application of antibiotic ointment. Dr. Cho was informed of her findings and she left to treat another patient. Respondent determined that he would use penicillin (duracillin, a form of penicillin with an effectiveness of
48 hours) intramuscularly, and tetracycline syrup for the oral antibiotic. He selected neosporin as a topical ointment for infection. Respondent injected the duracillin. He administered the neosporin tonically and covered the patient's eye with a patch. He prescribed the tetracycline syrup for later use. Just prior to leaving the medical office of Respondent, Mrs. Harless was asked to complete a patient history and medical information form.
Later that day, Mrs. Harless took Kimberly to Salvatore Cantolino, M.D., a board-certified ophthalmologist, who diagnosed an abrasion. Dr. Cantolino's testimony established that a family practitioner should at minimum take an accurate history of a child prior to instituting care involving antibiotics. His testimony further established that intramuscular antibiotics and oral antibiotics were unnecessary in this situation, and that these antibiotics could have harmed this child due to possible adverse side effects, reactive risks and the fact that the antibiotics might complicate the diagnosis of any subsequent eye infection. Dr. Robert Blackwood's testimony confirmed the opinion of Dr. Cantolino regarding the inappropriate prescription of antibiotics by Respondent.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Subsection 120.57(1)(b) , F.S.
Section 458.331, F.S., provides in part:
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
False, deceptive, or misleading advertising.
Advertising, practicing, or attempting to practice under a name other than one's own.
(h) Failing to perform any statutory
or legal obligation placed upon a licensed physician.
(l) Making deceptive, untrue, or fraudu- lent representations in the practice of medicine or employing a trick or scheme in the practice of medicine when such scheme or trick fails to conform to the generally prevailing standards of treatment in the medical community.
Gross or repeated malpractice or
the failure 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.
Performing any procedure or pre- scribing any therapy which, by the pre- vailing standards of medical practice in the community would constitute experimen- tation on a human subject, without first obtaining full, informed, and written consent.
Violating any provision of this chapter, a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department.
Subsection 458.331(1)(d), F.S., quoted above and Rule 21M-24.01, F.A.C., 1/ are concerned with misleading advertising. Respondent permitted Dr. Sample's name to appear on the exterior of his office, required the telephone to be answered using Dr. Sample's name and used a contrived vacation explanation of Dr. Sample's absence. The sign and the telephone response were the beans by which Respondent held out his practice to the public, and therefore constituted advertising. 2/ Since neither the seller, Dr. Sample, nor the buyer, Dr. Cho, intended that Dr. Sample would return to the Bradenton practice, the deception was intended and is a violation of Subsection 458.331(1)(d), F.S., and Rule 21M-24.01, F.A.C.
Subsection 458.331(1)(e), F.S., quoted above prohibits practicing under a name other than one's own. Although Respondent falsely advertised that Dr. Sample was still practicing, there was no evidence that he misrepresented himself or sought to conceal his identity. This portion of the Administrative Complaint should therefore be dismissed.
Subsection 458.331(1)(t), F.S., quoted above establishes the minimum acceptable standard of care. The evidence was conflicting with respect to whether Respondent gave the three patients discussed herein any preliminary examination or took any history whatsoever prior to treating them. However, it was established that such examinations and history as may have been taken did not meet the minimum required of a general or family practitioner in the Bradenton community. The treatment of patient Robbin's back injury without x- rays, the overprescribing of antibiotics for patient Perdue and the determination that patient Stover's cancer had not recurred were all instances where Respondent failed to practice medicine with the level of care required by this provision of law.
Subsection 458.331(1)(u) , F.S., quoted above requires written consent prior to employing experimental procedures. Respondent's use of acupuncture is not necessarily experimental or otherwise improper, where history taking and accepted diagnostic techniques are employed. However, his use of the dermatron machine, which is not approved by the Food and Drug Administration and is unknown to the physicians who testified herein, is experimental. Respondent was therefore required to obtain the written permission of Mrs. Stover which he failed to do in violation of this provision.
Subsection 458.331(1)(1) , F.S., quoted above condemns fraudulent representations or use of a trick or scheme which does not meet prevailing standards. Respondent's use of the dermatron machine, which is experimental at best and unknown to the other physicians who testified in this proceeding, is such a trick or scheme. Further, Respondent's representation to Mrs. Stover that she was free of cancer was deceptive. He is therefore guilty of violating this provision with respect to patient Stover.
Subsection 458.331(h) , F.S., quoted above, concerns a failure to perform any statutory or legal obligation. Petitioner established the experimental nature of the dermaton machine, but did not clearly establish that Respondent's possession and use of this machine violated federal law as alleged. This charge should therefore be dismissed.
From the foregoing findings of fact and conclusions of law it is RECOMMENDED that Respondent be placed on probation for a period of two
of a physician designated by the Board of Medical Examiners. It is further
RECOMMENDED that Respondent's license be restricted to prohibit the diagnosis and treatment of patients except as noted above until he has demonstrated to the Board of Medical Examiners that he is capable of practicing medicine with reasonable skill and safety to patients. It is further
RECOMMENDED that Respondent be fined $1,000.
DONE AND ENTERED this 4th day of March, 1982, in Tallahassee, Florida.
R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1982.
, F.S.
2/ . .[T]o inform, to give notice . . Webster's New Twentieth Century Dictionary, 29 (2d ed. 1980)
Joseph W. Lawrence, II, Esquire Deputy General Counsel Department of Professional
