STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 82-828
)
JOSHUA L. STERNBERG, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings on July 7 and 8, 1983, in Miami, Florida. The appearances are as follows:
APPEARANCES
For Petitioner: Harold M. Braxton, Esquire
45 Southwest 36th Court Miami, Florida 33135
For Respondent: Steven M. Slepin, Esquire
1114 East Park Avenue Tallahassee, Florida 32301
The Petitioner, the Department of Professional Regulation, Board of Medical Examiners, has filed a seven count administrative complaint against the Respondent, Joshua Sternberg, seeking to suspend, revoke or take other disciplinary action against his licensure status as a medical doctor. Counts I through IV are predicated on allegations that tests performed by the Respondent on patient Maurice Blanchar, were redundant and unnecessary, therefore constituting a violation of Section 458.331(1)(d), Florida Statutes (1981),as an instance of false, deceptive or misleading advertising; a violation of Section 458.331(1)(1), Florida Statutes (1981), by making a deceptive, untrue or fraudulent representation in the practice of medicine, or employing a trick or scheme in the practice, and a violation of Section 458.331(1)(o), Florida Statutes (1981), by exercising influence on a patient for financial gain of the licensee.
Counts V, VI, and VII are predicated on allegations that the Respondent fragmented certain tests performed upon patient Dehlia Teramo for purposes of increasing his fees and also that certain of the tests served no useful purpose in determining whether a suspected fracture of the sphenoid bone existed (the alleged focus of the diagnostic tests performed). Thus, it is alleged that with regard to that patient, the same statutory subsections have been violated. It is also alleged, with regard to both patients, that Section 458.331(1)(t) has been violated by the Respondent's failure to practice medicine with the level of
care, skill and treatment recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances.
The issues for determination concern whether the Respondent is guilty of the charges involving unnecessary testing and fragmenting of tests and charges and, if so, what disciplinary action, if any, should be taken.
At the hearing the Petitioner presented the testimony of two expert witnesses, Dr. Stuart Gottlieb and Dr. Jerry Stolzenberg. This testimony was admitted in the form of videotaped depositions (also transcribed) without objection by the Respondent. The videotapes of the depositions have been viewed by the Hearing Officer. The Petitioner also presented the testimony of Dehlia Teramo by deposition as a late filed exhibit with the agreement of the Respondent, and presented the live testimony of witness Maurice Blanchar. The Respondent presented the testimony of Morton Zemel, Esquire, as well as the testimony of Dr. David Epstein as an expert witness, the testimony of the Respondent and the testimony, by late filed deposition, of Dr. Robert Katims.
The Petitioner offered Exhibits A through E and the Respondent offered one exhibit. All exhibits were admitted into evidence. At the conclusion of the hearing the parties requested a transcript of the proceedings and availed themselves of the right to file proposed findings of fact and conclusions of law, waiving the requirement of Rule 28-5.402 regarding the time for filing of a Recommended Order herein. Proposed findings of fact and conclusions of law were filed by both parties in a timely manner on or before September 12, 1983.
All proposed findings of fact, conclusions of law, and supporting arguments of the parties have been considered. To the extent that the proposed findings and conclusions submitted by the parties, and arguments made by them, are in accordance with the findings, conclusions and views stated herein, they have been accepted; and to the extent that such proposed findings and conclusions of the parties, and such arguments made by the parties, are inconsistent therewith, they have been rejected. Certain proposed findings and conclusions have been omitted as not relevant or as not necessary to a proper determination of the material issues presented. To the extent that the testimony of various witnesses is not in accord with the findings herein, it is not credited.
FINDINGS OF FACT
The Respondent is a licensed medical doctor holding license number 0013446 issued by the Florida Board of Medical Examiners. He specializes in internal medicine, geriatrics, endocrinology and nuclear medicine with an extensive educational and professional background in those fields. He is currently in private practice in Dade County, Florida. The Petitioner is an agency of the State of Florida charged by Chapter 458, Florida Statutes (1981), with administering, regulating, and enforcing the licensure and medical practice standards as delineated by that chapter and related rules.
Maurice Blanchar was examined at the Miami Heart Institute in 1976. At that time it was suggested by his attending physician that Mr. Blanchar have a "nuclear scan" because of a suspected abnormality described as "Gallin Syndrome." Mr. Blanchar was also examined at the Cooper Clinic in Dallas, Texas, in 1979, at which time it was also suggested that he have a nuclear scan (apparently related to cardiac complaints at that time of an unspecified nature). A coronary angiogram was performed at the Cooper Clinic, which was within normal limits. Sometime in 1979, Mr. Blanchar, with a prior history of undiagnosed cardiac complaints, read an advertisement in a local newspaper which offered nuclear scans to be performed by the Respondent, Dr. Sternberg. Mr.
Blanchar kept this advertisement in his possession for approximately one year and ultimately called the Respondent's office for an appointment in July of 1980. Upon obtaining his appointment, Mr. Blanchar was advised to bring $95 as a initial fee, together with proof of medical insurance coverage. Upon arriving for his scheduled appointment at the Respondent's office, Mr. Blanchar executed a questionnaire designed to disclose his medical history. His specific presenting complaint was that he was suffering chest pains. He was a regular "jogger" and had no pain or discomfort attendant to this exercise, but suffered chest pains only while resting in bed at night. He met with the Respondent and informed the Respondent that he was responding to the advertisement regarding "nuclear scans" and informed the Respondent of his complaint, a somewhat unusual occurrence. Based upon Mr. Blanchar's complaints, together with information discerned from Mr. Blanchar's previous records from the Cooper Clinic and the Miami Heart Institute, Dr. Sternberg discussed the procedures he intended to perform with Mr. Blanchar. Dr. Sternberg informed him of the tests he would perform before and as he was performing them.
Dr. Sternberg explained, and Mr. Blanchar admitted in his testimony, that the $95 fee was not for the entire nuclear scan series of tests performed, but was rather for a consultation and initial examination performed by the Respondent. The record does not clearly reflect whether specific fees for tests or procedures to be performed were discussed between the Respondent and Mr. Blanchar at this time, other than the Respondent informing Mr. Blanchar that his insurance company would pay for the cost of the nuclear scans involved. Prior to beginning the testing, the Respondent had no presupposition that Mr. Blanchar had cardiac arterial disease, based upon a previous normal coronary angiogram, and the symptoms of lack of pain while jogging, but pain while at rest in bed at night. Dr. Sternberg was aware that Mr. Blanchar was a jogger, which indicated to the Respondent that in terms of likelihood, his chances of having coronary artery disease were extremely small in terms of percentages. However, the fact that he developed chest pains while at rest in bed, led Dr. Sternberg to believe that this symptom could possibly be related to coronary artery disease. Because of the possibility of a hiatal hernia, arthritis, or possibly a congenital heart lesion, the Respondent performed three tests, the so-called "first pass," "MUGA at rest" and "MUGA at stress." All tests were designed to give complementary information, which information is not necessarily achievable by any one procedure in and of itself.
The first procedure performed was the cardiac imaging blood pool test, commonly referred to as a "first pass study." It is the function of this test to assess the pattern of blood flow through the heart to determine right and left ventricular performance which is measured by cardiac wall motion and "ejection fraction." The first pass test is also utilized if there is a suspicion of vascular misformation, obstruction or shunting in a patient's heart. The first pass test was found to yield results within normal limits.
The next procedure performed by the Respondent was the cardiac imaging, gated, static test, designed to show cardiac wall motion and ejection fraction, which last term is related to the volume of blood pumped by the heart upon ventricular contraction. This procedure is commonly termed the "MUGA at rest" study. The main concern of this test is a measurement of cardiac function as observed by wall motion of the heart and measured by the ejection fraction while the patient is at rest. This procedure is most commonly done as a baseline study for obtaining information concerning cardiac function while the patient is at rest for purposes of comparison with the cardiac imaging, gated, wall motion, ejection fraction test done with the patient at stress. This latter test is referred to as "MUGA at stress" and is performed in the case of patient Blanchar
by using the so-called "Cold Presser Method," which involves stressing the heart to the required degree for the test by fastening an ice bag on the arm of the patient until he has reached the level of stress desirable for performing the MUGA at stress test. The MUGA at stress performed by the Cold Presser Method, although somewhat experimental, is an accepted means of inducing cardiac stress in the patient for purposes of obtaining meaningful MUGA at stress results. The MUGA at stress test, when used in conjunction with the MUGA at rest study, gives the physician a comparison of relevant data concerning cardiac function.
Dr. Sternberg was the primary treating physician for Mr. Blanchar. He did not see him on a referral basis from any other physician with any attendant request to do a specific or narrow diagnostic service. Rather, Mr. Blanchar presented himself with a complaint of chest pains at night while at rest, therefore Dr. Sternberg had a broader range of potential problems to consider in determining which diagnostic test to perform on Mr. Blanchar. When Dr. Sternberg performed the first pass test, which was performed first of the three tests performed on patient Blanchar, the ejection fraction was normal, but on the lower side of a normal range for this patient. Dr. Sternberg and the Respondent's expert witness, Dr. Epstein, as well as Dr. Gottlieb testifying for the Petitioner, established that the first pass test is medically indicated to rule out problems such as "shunting," obstructions or regurgitation. Dr. Sternberg had no prior medical history of Mr. Blanchar which would automatically rule out any such problems and, in the exercise of sound medical judgment, felt that the first pass test should he performed. The decision to perform this test was medically appropriate given the patient's symptoms and the doctor's responsibility as the only primary care physician involved.
Dr. Sternberg then performed the MUGA studies at rest and at stress and found that the wall motion of the heart looked normal in the left anterior oblique view. The ejection fraction was normal with the MUGA study "at rest" test, but was higher in the normal range than had been the case with the first pass study, which led him to believe that the previous first pass study had an anxiety factor in the patient as a contributing factor to its results. Thus, the MUGA at stress test was able to confirm the efficacy of the performance of and results of the first pass study and Dr. Sternberg was, as well, able to rule out any problems related to shunting, regurgitation, or obstruction in the patient. He was able to confirm that the first pass study, with the patient's anxiety as a factor, had resulted in a slightly altered ejection fraction result. In any event, after these two tests were performed, he also felt the need to look at the wall motion of the heart, under stress conditions in the other areas of the heart, because he had not yet found any area of abnormality. Ultimately, no substantial abnormality was found in the patient's heart, except a suggestion that stress altered his ejection fraction. He also found that the wall motion of Mr. Blanchar's heart in the region of the left circumflex branch, the posterior laterial wall, towards the apex, showed sluggish motion, in fact, almost a paradoxical type of motion during stress, as compared with the baseline study which indicated that there was evidence of probable coronary artery disease at that point.
Dr. David Allen Epstein practices diagnostic radiology and nuclear medicine. He was accepted as an expert witness on behalf of the Respondent and largely corroborated the Respondent's testimony, finding the procedures performed by Dr. Sternberg for patient Blanchar to be medically legitimate and to constitute matters of clinical judgment. Dr. Epstein established that the Respondent had available to him other justifiable tests beyond those he performed for Mr. Blanchar and established that the first pass, MUGA at rest and MUGA at stress studies performed, were for medically justifiable reasons and, in
a patient with the presenting symptoms of Mr. Blanchar, were each designed to elicit information not directly available from the other tests. The use of color for cardiac computer studies is a useful diagnostic procedure.
Neither Dr. Stuart Gottlieb nor Dr. Stolzenberg (Petitioner's expert witnesses) found any fault with the management or care provided these patients, nor the choice of tests performed by Dr. Sternberg with the exception of the first pass test and the separately billed stress test. Both Drs. Gottlieb and Stolzenberg felt the first pass test was redundant. However, their testimony in this regard is rejected and Dr. Epstein's and the Respondent's is accepted, inasmuch as the Respondent was the primary care physician and the only physician concerned with these proceedings who saw the patients in a clinical setting, charged with evaluating the patient's own complaints and arriving at a diagnosis. Patient Blanchar was not presented to the Respondent by another referring physician upon a narrow area of specific inquiry, rather Dr. Sternberg had to perform the added first pass study in order to rule out possible shunting, obstruction, regurgitation and other problems and his testimony regarding the necessity for this is corroborated by that of his expert, Dr. Epstein. It was established that all three cardiac studies were efficacious with regard to patient Blanchar and the Respondent's testimony and Dr. Epstein's testimony is accepted to the exclusion of other testimony in this regard.
The Respondent's bill presented to patient Blanchar (and presumably his insurance carrier) is set forth in Petitioner's Exhibit "A" and reflects the following charges:
Comprehensive office visit,
new patient $ 95.00
Stress testing 150.00
Provision of Radionuclide 20.00
Cardiac Imaging gated
(wall Motion, ejection fraction) w/stress 500.00
Cardiac Imaging gated
(wall Motion, ejection fraction)
static 500.00
Cardiac Imaging blood pool
(1st pass) and or vascular flow 500.00
Dr. Sternberg charged patient Blanchar an additional $150 for "stress testing" which is represented on his bill to be a separate and different test from the cardiac imaging, gated, wall motion study with stress or "MUGA at stress," for which the doctor charged Blanchar $500. Although the Respondent represented that this "stress testing" was a separate service performed, there is no evidence whatever in the record which would establish that such a stress test was performed separate and apart from the MUGA at stress, performed for the
$500 charge. A separate stress test would have been redundant and unnecessary in any event. It is obvious therefore that the patient Blanchar was billed for a separate item called "stress testing" in the amount of $150 which was not actually performed and which was not necessary.
Dehlia Teramo suffered an automobile accident on March 12, 1980. She was initially seen by Dr. Carlos B. Fernandez, who saw her on the day of the accident. He ultimately referred Ms. Teramo to the Respondent with a history of trauma sustained in the accident with subsequent pain throughout her head, ears, eyes, neck, nose, and left shoulder. On April 10, 1980, Ms. Teramo initially saw the Respondent complaining of frequent headaches, neck pain, eye pain, high
blood pressure, back and shoulder pains and pain in her nose, having sustained trauma and unconsciousness after being thrown about in the interior of her car during the auto accident. She additionally suffered pain in the left upper and lower parts of her mouth and suffered a recurrence of her menstrual period. Dr. Fernandez sent her to the Respondent for evaluation and diagnosis with reference to all these physical complaints, including the possibility of a fracture in the head or left shoulder area, but not solely for determination of the presence of a fracture of the sphenoid bone of the head.
The Respondent performed three diagnostic tests or studies on different dates to attempt to determine the basis of Ms. Teramo's injuries. The first study was conducted on April 10, a blood circulation study. This study, when confined to the cerebral area is known also as a brain flow study. The study was conducted by the Respondent in area of the head as well as the spine and shoulder. The test is performed by injecting the patient with a radionuclide and then following the "bolus" throughout the areas in the which the physician is interested in gathering data with an x-ray camera assisted by a computer. In effect, this test images the blood flow in the blood vessels involved in the head, spine and shoulder areas and is used to detect subdural or epidural hematomas, abnormal vascular changes in the brain and in the other areas tested. It is designed to show any breaks or "leaks" in the blood/brain barrier, that is, any passage of blood from the vascular system of the brain into surrounding brain tissue. In itself, it is not the primary test for determining a fracture, but it is useful and all expert witnesses agreed and established that it was within sound medical judgment and patient management to perform such a test to aid and ascertain the basis for the complaints Ms. Teramo had regarding her head, neck and shoulder areas. A sphenoid bone fracture would be difficult to diagnose with this one test alone, but that was not the sole basis for the referral of Ms. Teramo to the Respondent.
The radionuclide which is injected travels throughout the patient's body and the physician can do a number of limited scans or a total body scan utilizing the one injection of radionuclide. In performing the blood circulation or blood flow study, the Respondent charged patient Teramo for each component of the study, in effect, each view taken was charged for as a separate procedure as was the injection of the radionuclide. The computer processing and color image analysis was also disclosed to patient Teramo to be a separate procedure and was billed for separately, as shown on Petitioner's Exhibit "K," the bill set forth below.
The blood circulation study and the quantitative cerebral blood flow study were represented to the patient Teramo on the bill as being separate studies and a separate $200 charge was assessed against the patient for the quantitative cerebral flow study. These studies are performed during the same patient visit and utilizing the same injection of radionuclide. The cerebral blood flow study is dynamic, with imaging done as the radioactive "bolus" moves through the vascular area in question. The blood circulation study, also called blood pool study, is the static form phase of the procedure performed after the vascular system in the area in question has already been completely infused with radionuclide. The testimony of Dr. Stolzenberg, coupled with that of the Respondent himself, establishes that the quantitative cerebral blood flow study is indeed tested with the same injection of radionuclide at the same patient visit. It is a different test or procedure, however, although many practitioners do not use it and it is unusual to see it used. However, it was not demonstrated, because it is not a standard type of procedure, that a practitioner should not charge a separate fee for it, not that the brain flow study always necessarily includes a quantitative, cerebral blood flow study.
Thus it was not shown that the quantitative, cerebral blood flow study with the separate charge of $200 on Ms. Teramo's bill was not a separately identifiable test performed on her. The Petitioner also was unable to establish that this particular test was not medically indicated for a patient with Ms. Teramo's presenting symptoms.
On April 14, 1980, the Respondent performed another nuclear scan on patient Teramo, known as a bone scan. This is accomplished by again injecting the patient with a radionuclide substance which adheres to the bones and joints after passage of a period of time while the patient waits in the examining facility. This scan was utilized for the same areas as the previous scan or blood flow study, that is the head and left shoulder areas and cervical spine area. The bone scan is used to aid in the physician's determination of the presence of fractures. The Respondent separated his charges for this procedure into a separate charge for each view obtained, as well as a separate charge for the injection of the radionuclide, and a separate charge for computer processing and clinical color imaging analysis done by the Respondent himself.
On April 18, 1980, the Respondent performed an echoencephalogram upon patient Teramo. This procedure is designed to determine the presence of subdural or epidural hematomas, fractures and tumors. It is commonly utilized in cases of patients who sustain traumatic injury.
Having reviewed the results of all these procedures, the Respondent arrived at a diagnosis of patient Teramo as having a fracture of the sphenoid bone of the head. No apparent diagnosis was made with reference to the shoulder area. The Respondent presented a bill to patient Teramo, admitted as Petitioner's Exhibit "K," reflecting the following pertinent charges:
4/10/80 Initial consultation $ 95.00 Injection of Radio-
nuclide for scans 20.00
Scans: (Blood circulation study)
Head LL 75.00
Head PA 75.00
Head Vertex 75.00
Cervical Spine PA 75.00
Shoulder AP 75.00
L. Shoulder AP 75.00
R. Shoulder PA 75.00
L. Shoulder PA 75.00
Head AP 75.00
Head RL 75.00
Computer processing for high resolution and high sensitivity image produc- tion and clinical color
image analysis 350.00
Quantitative Cerebral
Blood Flow Study 200.00
4/14/80 Office visit 25.00
Injection of Radio-
nuclide for scans 20.00
Scans: (Bone and Joint Study)
Head AP 75.00
Head RL 75.00
Head LL 75.00
Shoulder AP | 75.00 | |
L. Shoulder AP | 75.00 | |
R. Shoulder PA | 75.00 | |
L. Shoulder PA | 75.00 | |
Head PA | 75.00 | |
Cervical Spine PA | 75.00 | |
Cervical Spine LL | 75.00 | |
Cervical Spine RL | 75.00 | |
Computer processing for | ||
high resolution and high | ||
sensitivity image produc- | ||
tion and clinical color | ||
image analysis. | 350.00 | |
4/18/80 | Office visit | 25.00 |
Echoencephalogram, A-Mode | 150.00 |
The blood and bone scan studies done with regard to Ms. Teramo's complaints, as well as the echoencephalogram, are medically appropriate and a proper exercise of sound medical judgment by a clinical physician and primary treating physician in the position of Dr. Sternberg with regard to this patient. It must be remembered that Ms. Teramo was not merely presented for determining the presence of a sphenoid fracture, rather she was presented to Dr. Sternberg by Dr. Fernandez, for investigation of various types of suspected pathologies. Dr. Sternberg's testimony, as corroborated by that of Dr. Epstein, establishes that certain fractures not always detectable by specific types of radiographic techniques may be detected by the device of blood pool scans. The Respondent showed (corroborated to some extent by Drs. Gottlieb and Stolzenberg) that the tests performed on Ms. Teramo constituted matters of clinical judgment and that Dr. Sternberg had available to him other tests which he could have performed on Ms. Teramo or Mr. Blanchar and did not. Some physicians use color imaging in computer processing and that is a legitimate type of evaluation and diagnostic technique. Further, Dr. Stolzenberg recognizes that there are some physicians who do cerebral blood flow studies of the brain and charge fees there for and acknowledges that there is no prohibition against such a procedure and that some physicians use the aid of a computer during performance and evaluation of brain scans as a routine matter.
Neither of the Petitioner's expert witnesses are primary care physicians and Dr. Stolzenberg admitted that he does not practice internal medicine; neither have examined either of Dr. Sternberg's patients concerned in this proceeding. Only Dr. Sternberg, of the three doctors involved, is a primary care physician. It has thus been shown that the first pass study, the MUGA at rest and the MUGA at stress studies, as well as the blood circulation study, quantitative cerebral blood flow study and bone scans performed on these two patients were medically legitimate and all were within an appropriate choice of tests and were selected and performed in a manner within acceptable medical standards. The fact that the Respondent charged a $75 fee for each of the various scans or views of the head, shoulders, and cervical spine of Ms. Teramo for purposes of the blood circulation study and the bone scans performed appears exorbitant, however there is no evidence that it was not a charge directly related to the Respondent's time and skill as a highly trained specialist, coupled with a component in each of those charges for the use of highly sophisticated, color, computer processing equipment and camera which he owned and operated himself in his own office. Since the specific rates charged by physicians for this and any other type of service, are not regulated, these charges cannot be delved into further for purposes of this proceeding once the diagnostic procedures to which they relate have been established, to be
medically acceptable, which they have, with the exception of the $150 charged patient Blanchar for the unperformed stress test.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1981).
Count I of the Administrative Complaint charges the Respondent with engaging in false, deceptive or misleading advertising which is violative of Section 458.331(1)(d), Florida Statutes. Although this charge was predicated upon the complaint of patient Blanchar that he engaged the Respondent to perform a nuclear scan for the sum of $95, based upon an advertisement placed by the Respondent in the newspaper. The advertisement was not produced and placed into evidence, nor was it proven by competent evidence that Mr. Blanchar had ever been informed by the Respondent, that he would perform the nuclear scan involved for the sum of $95, rather, he told him that this was initial consultation fee. Thus, the charges contained in Count I have not been proven.
Counts II and III allege that the Respondent has violated Section 458.331(1)(1), (o) and (t), Florida Statutes (1981). These statutes prohibit physicians from:
Making deceptive, untrue or fraud- ulent 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 treat- ment in the medical community.
* * *
(o) Exercising influence on the patient or client in such a manner as to exploit the patient or client for financial gain of the licensee . . .
* * *
(t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recog-
nized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The board shall give great weight to the provisions of s. 768.45 when enforcing this paragraph.
The specific issue raised by these counts most succinctly stated, concerns whether, by performing superfluous tests, the Respondent exploited patient Blanchar for financial gain and thereby employed a trick or scheme to obtain financial gain from the patient or the insurance carrier. There is no question that Chapter 458, Florida Statutes (1981), does not prohibit a physician from setting his own fees or fee structure. Overcharging in and of itself is not prohibited by law. See, Department of Professional Regulation, Board of Medical Examiners v. Manuel J. Rico-Perez, DOAH Case No. 82-1733. A careful reading of the complaint indicates however that this is not merely an attempt to charge the Respondent with overcharging his patients. The adoption or employment of testing procedures can be designed or performed in such a
manner as to be deceptive to the patient, thereby resulting in a larger amount of money to be derived by the physician. While overcharging is not prohibited, the employment of a deceptive device or scheme, which results in a larger than usual financial gain due to that scheme or device, is.
The issue here does not concern whether the doctor performed medically acceptable tests. It is acknowledged by all experts testifying that each test performed upon Mr. Blanchar was a medically proper procedure. The question raised concerns whether a first pass study conducted contemporaneously with the MUGA at rest and MUGA at stress studies was a necessary or redundant test in view of the patient's presenting symptoms and whether the MUGA at rest study was actually a part of the MUGA at stress study or a separate study.
The evidence in the record and the above Findings of Fact reveal that indeed, although the MUGA at rest study and the MUGA at stress study are related and that the MUGA at rest is the base data study for purposes of comparison with the MUGA at stress, that the gravamen of the testimony of all the expert witnesses testifying in this proceeding establishes that they are separate studies. Although the Petitioner's experts would not charge separately for both studies, that issue of amount of charges is not properly before the Hearing Officer since methods and amounts of charging are not at the present time regulated by the Petitioner. The Petitioner's experts also maintain that the first pass study is merely another type of baseline study comparable to the MUGA at rest and is therefore redundant and unnecessary with patient Blanchar's situation. While the evidence reveals that the MUGA at rest study and the first pass study do indeed elicit similar results or test similar heart function characteristics, the Respondent showed (corroborated by Dr. Epstein, the Respondent's expert and to some extent by both Drs. Gottlieb and Stolzenberg) that the first pass study also is designed to show a somewhat different view of the cardiac walls as well as such other items related to the heart function inquiry such as regurgitation, shunting or obstruction. When Mr. Blanchar was presented to the Respondent, the only clinician and primary physician involved in this proceeding, with his somewhat peculiar symptoms, the Respondent had a broader universe of potential problems to inquire about than merely a narrow referral inquiry concerning whether or not coronary artery disease was present. Since the Respondent undertook the treatment or examination of Mr. Blanchar as a primary care physician without an initial evaluation by another referring physician, he was shown to have acted within the bounds of appropriate medical judgment as a clinician in performing this first pass study along with the MUGA at rest and MUGA at stress procedures. Thus, it was established by the evidence of record, that these three tests are indeed separate tests, although they may be done on the same day with the same injection of radionuclide and, with a patient with presenting symptoms such as Mr. Blanchar, that they each can indeed show the physician somewhat different information.
The computer (as agreed by the Petitioner's experts) is required for evaluating and "imaging" the results of these studies and billing for computer time, for the expertise in using the computer assisted equipment and for evaluating and analyzing the results thereby produced is an appropriate portion of each of these studies. The evidence of record thus shows that separate charges for the computer equipment use, time and the expertise involved in using it and diagnosing there from does not constitute the perpetration of any fraudulent scheme, design or undue influence on the patient. Thus, clear and convincing evidence has not been presented which would show that the first pass test, the MUGA at rest and the MUGA at stress tests and related fees were unnecessary and Counts I, II and III have not been proven to this extent.
There remains, however, the fact that the Respondent charged Mr. Blanchar for an apparent separate "stress test" in the amount of $150. The record contains absolutely no evidence that any such separate stress test was performed, therefore it is apparent that, in effect, Mr. Blanchar was "double- billed" for stress testing when he was billed $500 for the MUGA at stress test, which was the only test performed with a stress situation imposed. Corollarily, it should be pointed out that had the additional stress test indeed been imposed, it would obviously be redundant since the medical testimony is in agreement that the MUGA at stress test was the only stress procedure required in the above situation. Thus, to this extent the charged violations of the above authority contained in Counts II and III have been proven.
Count IV of the administrative complaint alleges that the Respondent failed to practice medicine in these respects with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under the similar conditions and circumstances, in violation of Section 458.331(1)(t), Florida Statutes (1981). There is no testimony or evidence which is competent to prove that the Respondent performed any of the procedures which he performed negligently or carelessly or below acceptable medical standards. Accordingly, the Respondent has not been proven guilty of violating this subsection of the above statute.
Counts V, VI, and VII of the administrative complaint involve the circumstances surrounding the Respondent's examination and testing of Dehlia Teramo. In these counts of the complaint, the Respondent is charged with violating Sections 458.331(1)(1), (o), and (t). The gravamen of these charges concerns the Petitioner's contention that the Respondent improperly utilized a blood pool scan for the purpose of determining a fracture and improperly separated his scans for billing purposes.
This latter basis of the charges regarding improper separation of the scans is not borne out by the evidence of record. The Respondent performed first the blood pool scan on April 10, 1980, and charged separately therefor from the charges for the scan performed on April 14, 1980, which was the bone scan or scans. The evidence is unrefuted that these were done as two different procedures on different days and used different injections of radionuclide. It is true, however, that the doctor charged a fee for each of the separate views taken with each scan or study done on those two days. In any event, the evidence clearly reveals that the blood circulation study involved was more extensive in scope than the cerebral flow study which were both performed on April 10, 1980, with the same injection of radionuclide. The first, the blood circulation study, not only involved the various views of the head, but also the cervical spine and the various views of the left and right shoulder areas with a separate charge of $350 for computer processing for high resolution image production and clinical color image analysis. This component of the physician's bill was shown to include his expertise in performing the analysis, as well as a component for the performance of this procedure in his own office, as opposed to a hospital, with his own highly specialized equipment. The quantitative cerebral blood flow study performed that same day with that injection of radionuclide was a separate procedure, according to the greater weight of the evidence, involving only a study of the blood flow through the brain itself with a view towards determining whether there was any break in the vascular blood/brain barrier which could indicate some damage or trauma in the cerebral area. This study, although not purely designed to reveal the presence of a fracture of the sphenoid or other skull bone is an accepted medical procedure for testing for either brain trauma directly or as indicator of a fracture since a sphenoid fracture can cause brain trauma in the area of the fracture which the
cerebral blood flow study could with reasonable medical probability be expected to reveal.
The Petitioner's experts felt that the blood circulation study was unnecessary in attempting to diagnose a sphenoid bone fracture and that therefore this test was unnecessary as was the cerebral blood flow study. That testimony failed to take into account the fact that patient Teramo was referred to the Respondent with a broader universe of complaints resulting from trauma in an auto accident and was not merely referred for purposes of diagnosing a sphenoid fracture. Thus, the testimony of the Respondent and Dr. Epstein, the Respondent's expert witness, is accepted over the testimony of the Petitioner's witnesses in this regard and the cerebral blood flow study and the blood circulation study are concluded to have been medically appropriate for a clinician such as the Respondent to perform on a patient presenting symptoms of patient Teramo.
The Petitioner contends, with regard to the bone scans performed on April 14, 1980, that the Respondent improperly "fragmented" the various views taken and that the appropriate method of charging for multiple, partial-body bone scans would be to charge simply for one total-body bone scan. The Petitioner's witnesses in this regard testified that it is customary in the Dade County medical community to charge for such procedures as if a total body scan had been performed, instead of two or more partial body bone scans since this is usually cheaper for the patient. This objection, however, in essence, relates to the quantitative nature of a bill to a patient and as yet is not an area of medical practice regulated by the Petitioner. The evidence clearly reveals that the bone scans performed were within the scope of the Respondent's exercise of reasonable medical judgment for the patient with the symptoms presented, especially in view of the fact that the patient did not present with complaints merely related to a potential skull fracture, but rather suffered persistent pain in the cervical spine and shoulder areas as well.
Concerning the allegation that the Respondent improperly charged for each separate "x-ray" view taken during all these scans of patient Teramo, the Hearing Officer is again constrained to point out that although the resulting fees appear exorbitant, that each of those views was a necessary one according to the evidence of record, and each $75 charge per view involved a component related to the cost of the Respondent's highly specialized equipment, and his acknowledged substantial expertise in the field of nuclear and internal medicine. Since the evidence establishes that each view taken was a medically appropriate procedure, although one may decry the substantially higher expense to the patient resulting from this method of billing as opposed to the general level of such fees in the Dade County medical community, such considerations are not properly before the Hearing Officer given the statutory and regulatory scheme. See, Department of Professional Regulation, Board of Medical Examiners
v. Manuel J. Rico-Perez, supra. Similarly, the Petitioner has not shown by clear and convincing evidence that the echoencephalogram performed was not also an appropriate medical procedure to perform on patient Teramo given her symptoms as related to the Respondent by Ms. Teramo and her referring physician.
Although the Petitioner's experts opine that the echoencephalogram should have been administered first, and might have revealed what the Respondent was attempting to diagnose, the evidence does not establish that its performance as the last procedure with this patient was medically inappropriate either. This is so, once again, because Ms. Teramo was not presented as merely having a problem with her head or potential skull fracture, but rather was presented with the multiple complaints delineated in the above Findings of Fact. Thus, the
order in which the tests were performed does not in and of itself reveal that the Respondent violated the above authority.
In summary, the Petitioner has proven that the Respondent billed for an unnecessary "stress test," which was not performed and that thus he violated Section 458.331(1)(1) and (o), Florida Statutes (1981)
In all other respects, the Petitioner simply did not present sufficient evidence to warrant a conclusion that the Respondent's procedures performed on these patients were medically unreasonable under the circumstances and, to a great extent, the Petitioner's evidence consisted of revealing that the charges and the manner of charging fees to these patients departed from those the Petitioner's experts would have imposed. Moreover, although reasonable physicians may differ in the manner of treatment of patients and indeed in the manner of billing patients, such a difference of opinion does not render a particular treatment unreasonable or a particular fee or itemization of fees unreasonable or harmful. Rogers v. State Board of Medical Examiners, 371 So.2d 1037 (Fla. 1st DCA 1979); State Hoard of Medical Examiners of Florida v. Rogers, 387 So.2d 937 (Fla. 1980). Inasmuch as the Legislature has thus far not seen fit to allow this ground for the protection of public health, safety and welfare, by curbing irrational amounts and types of medical fees, to lie fallow, the conscionability of such charges to patients cannot be delved into in this forum. The administrative complaint in all other respects must be dismissed.
Having considered the foregoing Finding of Fact, Conclusions of Law, the candor and demeanor of the witnesses and the pleading and arguments of the parties, it is, therefore
RECOMMENDED:
That the Board of Medical Examiners enter a Final Order finding the Respondent, Joshua L. Sternberg, M.D., guilty of a violation of Sections 458.331 (1)(1) and (o) Florida Statutes (1981), to the extent delineated above, and that he be fined the sum of $1,000 for each of the above two violations.
DONE and ENTERED this 30th day of November, 1983, in Tallahassee, Florida.
P. MICHAEL RUFF Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
FILED with the Clerk of the Division of Administrative Hearings this 30th day of November, 1983.
COPIES FURNISHED:
Harold M. Braxton, Esquire
45 S.W. 36th Court Miami, Florida 33135
Steven M. Slepin, Esquire 1114 East Park Avenue Tallahassee, Florida 32301
Dorothy Faircloth, Executive Director Board of Medical Examiners
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Fred M. Roche, Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Aug. 29, 1990 | Final Order filed. |
| Nov. 30, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 14, 1984 | Agency Final Order | |
| Nov. 30, 1983 | Recommended Order | Doctor guilty of fraudulent misrepresentations and exercising influence over patient for financial gain. Fine $1,000 each count. |
