STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1733

) MANUEL J. RICO-PEREZ, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on November 22 and 23, 1982, in Coral Gables, Florida.

Petitioner Department of Professional Regulation, Board of Medical Examiners, was represented by Spiro T. Kypreos, Esquire, Tallahassee, Florida, and Respondent Manuel J. Rico-Perez, M.D., was represented by Paul W. Lambert, Esquire, and Stephen Marc Slepin, Esquire, Tallahassee, Florida.

Petitioner filed a three-count Administrative Complaint seeking to suspend, revoke or take other disciplinary action against the Respondent as licensee and against his license as a medical doctor under the laws of the State of Florida, and Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint. Therefore, the issues for determination are whether Respondent is guilty of the charges contained in that Administrative Complaint and, if so, what disciplinary action should be taken, if any.

All three counts of the February 24, 1982, Administrative Complaint in this cause are based upon Respondent's laboratory testing and billing practices as to nine patients seen by Respondent during the years 1980 and 1981. In preparation for the formal hearing in this cause, Respondent requested the production of the transcript of the hearing before the Probable Cause Panel of the Board of Medical Examiners. Petitioner produced two transcripts from two probable cause hearings, one from a hearing on January 18, 1982, and one from a hearing on September 13, 1982. The transcript from the first probable cause hearing refers to DPR case numbers 16171 and 16172. The Administrative Complaint filed herein refers to DPR case numbers 16172 and 16173. The transcript from the second probable cause hearing refers to DPR case numbers 16172 and 16173. Relying on Kibler v. Department of Professional Regulation, 418 So.2d 1081 (Fla. 4th DCA 1982), Respondent filed a Motion to Dismiss or Strike the Administrative Complaint, alleging that the discrepancy in case numbers made the probable cause determination facially defective. Since a review of both transcripts clearly reveals that both probable cause hearings involved the identical conduct by Respondent, although the names of the patients involved and/or the discussion as to what statutory violations to charge Respondent with may have been different, Respondent's Motion to Dismiss or Strike filed on November 3, 1982, was denied.

Likewise, Respondent's Motion in Limine filed at the commencement of the formal hearing in this cause, which motion was based upon the same arguments, was denied, as was Respondent's Motion to Strike Petitioner's Exhibits 1-5 admitted in evidence in support of Petitioner's position that any reference made by the first Probable Cause Panel to DPR case number 16171 was erroneous and that both Probable Cause Panels considered only DPR case numbers 16172 and 16173, the same case numbers reflected on the Administrative Complaint. Respondent's Motion to Strike any references to Respondent's treatment of and billing for Barbara de Armis, a patient not named in the Administrative Complaint, was, however, granted.

During the formal hearing in this cause, Petitioner voluntarily dismissed with prejudice Count Two of the Administrative Complaint filed herein.

Petitioner presented only the deposition testimony of Dr. Nathan O. Jackson and Dr. James A. Montgomery. Those depositions are included in Petitioner's Exhibits numbered 1 through 8 which were admitted in evidence. The Respondent testified on his own behalf and presented the testimony of Dr. Rogelio J. Zaldivar and Dr. Federico Dumenigo.

Both parties submitted proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been licensed to practice medicine in the State of Florida, having been issued license number ME 0034265.

   
   

2. In the course of his medical practice, Respondent examined and/or treated the following patients during the following time periods:

   
   

   Marisella Conde January 25, 1980 through March 31, 1980

   Pedro B. Conde February 23, 1980 through April 14, 1980

   Michelle Conde February 26, 1980 through February 27, 1980

   Ana Franjul January 20, 1981

   Alfonso deLaTorre September 11, 1980 through November 3, 1980

   Zoraida Estrada March 5, 1980 through January 7, 1981

   Maria Estrada June 1, 1981

   Dulce Febles June 30, 1980 through June 9, 1981

   Maria Febles August 5, 1980 through October 17, 1980

   
   

3. At all times material here to, Respondent had in his office a Dow Spectophotometer, a table-sized colorimeter manufactured by Dow Chemical Company and used to diagnose the chemical content of blood. The machine compares the color of a particular reagent with the color of a patient's plasma sample and gives a reading which is interpreted by the physician to achieve a diagnosis. A different, specific reagent is used to achieve each specific component analysis of a plasma sample. The plasma must first be separated from the blood sample by centrifuge, which separates the whole blood from the plasma. The plasma sample must be manually, individually prepared for each specific blood analysis desired and must pass through seven different steps in the Dow machine before completion. A separate vial of plasma and reagent must be manually prepared for each specific blood component test, such as cholesterol or bilirubin, and must

   be individually loaded into the Dow machine. The machine processes one vial at a time. Each analysis test is prepared separately and manually only the ultimate reading is performed automatically by the machine. The reading is then interpreted by the physician.

   
   

4. In September or October 1981, Respondent replaced his Dow machine with an ACA II, a room-sized computer/clinical analyzer manufactured by the Dupont Company and used to analyze blood samples. Respondent is the only private Florida physician known to own and operate an ACA II in his office. The ACA II is in use by several hospitals in the Miami area.

   
   

5. The SMAC machine is manufactured by the Technicon Company and is one of the first automated blood analysis machines available. The machine takes one blood sample and is capable of performing up to 26 different analyses from the one blood sample loaded into the machine. It does not require separate, manual preparation of a blood sample for each analysis, as do the Dow and the ACA II machines. The SMAC machine inserts the same needle device into the blood sample for each analysis performed and inserts the same needle device into the blood samples of different patients loaded into the machine. The Technicon SMAC machine is not as accurate as the ACA II machine. Although the Technicon SMAC machine is as accurate as the Dow machine, tests run on the Dow colorimeter have more quality control, since blood samples are individually analyzed and not mixed.

   
   

6. The word "SMAC" has come to be generically used by physicians to mean blood tests performed on any type of machine. Thus, the term "SMAC" is generic for blood tests as the word "Frigidaire" is generic for refrigerators. Physicians refer to blood tests as "SMAC 22" or "SMAC 26" to denote a blood test involving 22 or 26, or any other number of analyses, without meaning a blood test performed on Technicon's SMAC machine.

   
   

7. Respondent follows the practice of-most other physicians in indicating on his billings that a "SMAC 26" test has been performed, for example, which simply means that a blood test of 26 analyses has been performed. When Respondent billed for "SMAC" tests with each of the nine patients named in the Administrative Complaint, his billing used the word "SMAC" followed by the number of analyses, such as "SMAC 22" or "SMAC 26," and then specifically referred the reader to the attached page. The attached sheet of paper itemized each test included within the battery of analyses and the specific fee being charged by Respondent for each individual analysis. Accordingly, Respondent's use of the generic heading next to the total cost for the blood testing, followed by an itemized listing of each individual analysis together with its specific fee, reflects the chemical analyses as being actually performed as separate blood tests individually processed rather than blood testing run by a Technicon SMAC machine. Respondent's method of billing is an appropriate way to bill a patient for individual tests performed, since Respondent was not using a machine which produces multiple readings from one blood sample loaded into the machine.

   
   

8. Occasionally, Respondent used an independent laboratory to perform the blood test as a double check to the test performed in his office by him. In those instances, he did not bill for the independent laboratory test.

   
   

9. Respondent himself performed the blood tests for which he billed in the manner in which he billed, each test being performed separately and individually as billed.

10. Respondent advised each of the patients named in the Administrative Complaint as to the use and costs of the tests he intended to perform before performing them, thus obtaining his patient's consent to both the testing and the charges therefor.

    
    

11. There are no standards in the practice of medicine prohibiting the use of a Dow machine.

    
    

12. There is no maximum fee which can be charged by a physician for laboratory tests, throat cultures or hospital visitations.

    
    

13. Petitioner based its entire case on two discovery depositions taken by the Respondent: the deposition of a physician serving as a consultant to Petitioner on this case, and the deposition of a physician employed by an insurance company to whom Respondent sent billings for several of the patients named in the Administrative Complaint filed herein. Both doctors based their opinions on the assumptions that Respondent did not have the equipment in his office capable of testing as was reflected in Respondent's billing, that Respondent did not perform the blood tests but rather had them performed by an independent lab, and that the equipment which Respondent allegedly used could not be purchased. Neither doctor has ever discussed Respondent's billing practices with Respondent or with the patients in question, neither has ever seen Respondent's office or equipment, and neither has examined any of the patients in question nor caused any of the patients in question to be examined. Although each doctor believed that Respondent's charges for testing and examination were excessive, that many of the procedures utilized by Respondent were unnecessary, that Respondent inadequately explained his billing, and that the frequency with which Respondent repeated chemistry profiles on his patients was not medically justified, both doctors admitted that they had inadequate information upon which to support their medical opinions for the reason that both doctors based their entire testimony on only the billings that Respondent rendered to each of the patients; and neither doctor had ever seen any of the patient's medical records, which records include Respondent's office notes which contain the results of his examination of the patients, his impressions, his reasoning for each diagnosis, and his intended course of treatment.

    
    

14. Long before the filing of the Administrative Complaint in this cause, the insurance company which referred this matter to Petitioner for investigation sent its own investigator to Respondent's office to ascertain if Respondent had the equipment necessary to perform individual blood testing. The insurance company investigator reported Respondent had much equipment, including the Dow Spectophotometer. Yet that insurance company requested an investigation by Petitioner. Petitioner then sent its investigator to Respondent's office to ascertain if Respondent owned any testing equipment. Respondent showed his machinery, specifically the Dow Spectophotometer, to Petitioner's investigator and demonstrated the equipment by taking a blood sample from the investigator and performing the individualized testing on that sample on the Dow machine. As a result of that demonstration, Petitioner's investigator became a patient of the Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes (1981).

16. Since Petitioner dismissed with prejudice Count Two of the Administrative Complaint herein, only Counts One and Three remain for determination. Those counts charge Respondent with violating Sections 458.331(1)(l) and (o), Florida Statutes, which prohibit a physician from:

    
    

    (l) Making deceptive, untrue, or fraudulent representations in the prac- tice 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.

    (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 or of a third party which shall include, but not be limited

    to, the promoting or selling of services, goods, appliances, or drugs and the promoting or advertising on any prescrip- tion form of a community pharmacy unless the form shall also state "This prescrip- tion may be filled at any pharmacy of your choice."

    
    

17. Essentially, the Administrative Complaint in this cause lists the names and treatment dates for nine of Respondent's patients. It then alleges that Respondent charged and billed those patients or their insurance companies in amounts which are grossly excessive and further that the medical services performed for the patients by Respondent were performed with unreasonable and inadequate medical justification and/or no medical justification. Contrary to the information gathered by the two investigators who went to Respondent's office and saw the equipment which Respondent used to perform the chemistry profile on each of the patients in question, Petitioner asserts that Respondent does not run multiple tests in his own office but rather has an independent laboratory run one test which produces multiple results therefore Respondent's billings are excessive, and therefore Respondent is engaging in a trick or scheme to create the impression of performing a variety of medical services. Petitioner further questions the frequency of the tests performed by Respondent. The only evidence introduced by Petitioner consists of the billing statements submitted by Respondent for diagnosis and treatment of the patients in question and the deposition testimony of two doctors whose testimony is based upon Respondent's billing. The explanation and justification for patient diagnosis and treatment is contained in patient treatment records and notes and not in billing statements. Opinions of a physician's diagnosis or treatment of a patient based upon billing statements for such diagnosis and treatment, instead of the actual treatment in the records or notes, is not competent evidence and is not based upon adequate information. Petitioner's witnesses themselves admitted that it is easy to second-guess a physician's medical judgments and that billing records only do not give adequate information upon which an opinion can be based with any reasonable medical probability. Further, there is no quantum of fees which, by operation of statute, rule or policy, a licensed physician is required to charge, nor is there a prohibition upon the quantum of charges which may be made by a physician. Petitioner's assertion that Respondent charged grossly excessive amounts has no foundation in or by law and cannot be a ground for disciplinary action herein.

18. Respondent performed all diagnostic tests and treatments on all nine patients named in the Administrative Complaint in the manner in which he billed therefor, performing each blood test separately and individually as billed, and performing such blood tests, as billed, on the Dow colorimeter machine. Each patient was fully informed of the nature of the diagnostic testing, including the blood test, to be performed by Respondent. Respondent explained, and therefore justified, all diagnostic tests and treatments to the patients named in the Administrative Complaint, which testimony is unrebutted by competent substantial evidence. Disagreement by Petitioner's witnesses with any of Respondent's medical judgments, choices of medications, or diagnostic techniques does not constitute competent substantial evidence that Respondent performed services with unreasonable or inadequate medical justification and/or no medical justification. Neither of Petitioner's witnesses has ever seen any of the patients in question or the records of those patients, and none of the patients testified.

    
    

19. Petitioner also argues that Respondent engaged in fraudulent conduct or exercised influence on his patients in such a manner as to exploit them for financial gain in that he billed for diagnostic blood tests in such a manner as to imply that the blood tests were performed separately and individually in his office instead of being performed by an outside lab on automated diagnostic machinery. Petitioner's witnesses, however, admitted there would be no fraudulent or exploitative conduct on the part of Respondent if the blood tests in question were performed sepa- rately and individually by Respondent in his office, as billed. Since such is the case, there is no basis upon which it can be found that Respondent engaged in either fraudulent or exploitative conduct as argued.

    
    

20. Since there is no maximum which a physician can charge for services performed by him, Petitioner has clearly failed to show that Respondent has charged excessive fees for any of his services. Rather, Respondent's testimony that he advised his patients of his fees prior to rendering services and obtained the patient's agreement to pay that amount is unrebutted. Petitioner's final argument is that there is no exploitation if the Respondent disclosed his fees to his patients in advance and advised his patients where they could obtain the same services for less money. It is not surprising that Petitioner fails to cite either a statute or a rule that requires physicians in the State of Florida to advise patients that or where any of the services the doctor wishes to perform may be obtained for less money.

    
    

21. Petitioner has failed to prove that Respondent has made any deceptive, untrue or fraudulent representations in the practice of medicine, that Respondent has employed a brick or scheme in the practice of medicine, that Respondent has failed to conform to the generally prevailing standards of treatment in the medical community, or that Respondent has exercised influence on a patient in such a manner as to exploit the patient for financial gain of himself or of a third party. Accordingly, Petitioner has failed to prove Respondent guilty of violating either Section 458.331(1)(1), Florida Statutes, or Section 458.331(1)(o), Florida Statutes, as charged in the Administrative Complaint filed herein.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of

the charges contained in the Administrative Complaint filed herein and dismissing the Administrative Complaint filed against him.

DONE and RECOMMENDED this day of April, 1983, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT, 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 20th day of April, 1983.

COPIES FURNISHED:

Spiro T. Kypreos, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Paul W. Lambert, Esquire Stephen Marc Slepin, Esquire 1114 East Park Avenue Tallahassee, Florida 32301

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Dorothy J. Faircloth, Executive Director

Board of Medical Directors

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001733

Orders for Case No: 82-001733