STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-2340

) JORGE SUAREZ-MENENDEZ, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Sharyn L. Smith, Hearing Officer with the Division of Administrative Hearings, on December 21, 1984, in Coral Gables, Florida. The issue for determination at the hearing was whether disciplinary action should be taken against Respondent's license as a medical doctor for the reasons set forth in the Administrative Complaint.

APPEARANCES

For Petitioner: Joseph W. Lawrence, II, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Edward A. Carhart, Esquire

717 Ponce de Leon Boulevard, Suite 331 Coral Gables, Florida 33134

PROCEDURAL BACKGROUND

By two-count Administrative Complaint dated June 27, 1983, the Respondent Suarez-Menendez was alleged to have performed surgery on Gladys Maher for repair of an abdominal incision and filed a claim with Maher's insurance company for services totalling $6,200.00 as follows:

1. Repair of diastasis of the rectus muscle ($1,500.00)

2. Repair of umbilical hernia ($1,800.00)

3. Repair of ventral hernia ($1,800.00)

4. Repair of incisional hernia ($1,500.00)

It was alleged in Count One that the Respondent itemized these charges when he should have billed for one procedure, thus rendering his bill grossly excessive and exploitive. As such, it was alleged that the Respondent violated Section 458.331(1)(i), Florida Statutes, by making or filing a report which the licensee knew to be false; Section 458.331(1)(l), Florida Statutes, by making deceptive, untrue or fraudulent representation in the practice of medicine, or employing a

trick or scheme in the practice far which failed to conform to generally prevailing standards of medical treatment in the community; and Section 458.331(1)(o), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee.

Count Two of the Administrative Complaint alleged that the statutory violations set forth above occurred on December 17, 1982, when the Respondent performed plastic surgery on Jose Menendez and presented a bill for services in the amount of $2,000.00 which was alleged to have been grossly excessive and exploitive.

At the final hearing, Kenneth Reich, Assistant Administrator at American Hospital; Roberta Gamero, Records Custodian for Benefits Plans Association; Helda Marsh, Records Custodian at American Hospital; Daniel O'Connell, an investigator for the Department; Jose Sanchez-Arguello, M.D., a medical doctor and general surgeon licensed in Florida; and Sam Peter Hansen Stokley, M.D., a medical doctor and plastic surgeon licensed in Florida, testified for the Petitioner. Petitioner's Exhibits 1 through 4 were offered and admitted into evidence. Pedro Ramos, M.D., general surgeon licensed in Florida; Ernest De Geronimo, a Medical doctor and plastic surgeon licensed in Florida; Mark Handler, a Medical doctor and plastic surgeon licensed in Florida; Gustavo Leon, M.D., a general surgeon licensed in Florida; and Jorge Suarez-Menendez, a medical doctor and plastic surgeon, testified for the Respondent. Respondent's Exhibits 1 through 3 were offered and admitted into evidence.

Proposed findings submitted by the parties, to the extent included herein, are adopted; otherwise they are rejected as not supported by the evidence, immaterial, or unnecessary to the results reached.

FINDINGS OF FACT

1. The Respondent Jorge Suarez-Menendez, M.D., is a licensed medical physician having been issued license number ME 0030879. His last known business address is 1300 Coral Way, Miami, Florida 33145.

   
   

2. Gladys Maher was admitted to American Hospital via the emergency room on May 13, 1982, complaining of abdominal pain, nausea and vomiting. The admitting physician, Dr. Amorin also noted that laboratory results revealed problems with the patient's gall bladder and the Respondent was consulted when the surgeon detected abdominal wall defects which included hernias and diastasis of the rectus muscle.

   
   

3. A repair of the diastasis of the rectus muscle is performed utilizing an abdominal lipectomy since such a procedure is a necessary by-product of the gall bladder surgery and repairs of the hernias and diastasis when a single incisional technique is used.

   
   

4. Although a lipectomy was performed on the patient by the Respondent, it was not billed to the insurance company, Midland Mutual. However, the Respondent did not attempt to hide the fact that a lipectomy was performed since it was clearly described in the Respondent's operative report. The laboratory report also indicated that a lipectomy was performed.

   
   

5. An addendum to the operative report was dictated in April, 1983, by the Respondent to clarify that a lipectomy was performed on the patient when it was brought to his attention that the term "lipectomy" was mistakenly not typed on the operative report.

6. The patient, who had undergone prior abdominal surgery in Cuba, had four hernias repaired by the Respondent. All of the hernias were in the same general location as the original surgery which is represented by a scar running from the patient's navel to the pubic region.

   
   

7. The bill submitted by the Respondent could be considered duplicative if the diastasis of the rectus muscle was in the same spot as the umbilical and incisional hernias. The testimony presented by the parties concerning the location of the diastasis of the rectus muscle and whether this repair should have been considered a separate procedure from the repair of the incisional, umbilical and ventral hernias, was conflicting and inconclusive.

   
   

8. The Petitioner established that the Respondent's itemized charges for the surgery performed on this patient were significantly higher than the fees charged by other, more qualified and experienced plastic surgeons in the Dade County area. However, the appropriateness of the Respondent's charges and whether such fees should be paid are a matter between the Respondent and the patient's insurer since the Department clearly lacks the authority to regulate fees charged by physicians regardless of the unconscionable nature of such charges.

   
   

9. In its Proposed Recommended Order, the Department conceded that no substantial evidence of fraud exists in the Respondent's treatment of Jose Menendez, although the fees charged by the Respondent were characterized as excessive. The Hearing Officer concurs in the Petitioner's assessment of the evidence concerning the Respondent's treatment of Jose Menendez since Respondent's charge of $2,000.00 to remove glass fragments from this patient's eye was grossly excessive.

   
   

10. The counts of the Administrative Complaint relating to Gladys Maher arose as a result of a referral to the Department by a representative of the insurance carrier who had been hired to screen patient claims. At the hearing, counsel for the Respondent introduced a memorandum from the insurance carrier, Respondent's Exhibit 1, regarding the Respondent's claim for Mrs. Maher's surgery in which a disparaging comment was made regarding the Respondent's ethnic background. This document was introduced to demonstrate that the Respondent's claim could have bean scrutinized differently from other physician's because of his Hispanic heritage. The inference which surrounds the memorandum is disturbing and it is urged that the Department ensure that in the future complaints regarding a physician are initiated on the basis of the physician's alleged wrongful acts rather than his national origin.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

12. The Respondent has been charged with violating the following statutory provisions:

    
    

    458.331 Grounds for disciplinary action; action by the board.

    1. The following acts shall constitute grounds for which the disciplinary actions

       specified in subsection (2) may be taken:

       1. Making or filing a report which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do

    so. Such reports or records shall include only those which are signed in the capacity as a licensed physician.

    (l) Making deceptive, untrue, or fraudulent 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.

    (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

    prescription form of a community pharmacy unless the form shall also state "This prescription

    may be filled at any pharmacy of your choice."

    
    

13. The testimony and documents presented in this case failed to establish by clear and convincing evidence that a violation of the above-cited statutory provisions occurred in the Respondent's care and treatment of Gladys Maher and Jose Menendez. While the Petitioner proved that the Respondent's charges were excessive, nothing in Chapter 458, F.S., purports to regulate the fees charges by licensed physicians. See Department of Professional Regulation, Board of Medical Examiners v. Manuel Rico-Perez, Case No. 82-1733, April 20, 1983, final order entered June 17, 1983.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the Board of Medical Examiners enter a final order dismissing the Administrative Complaint filed against the Respondent Jose Suarez-Menendez.

DONE and ENTERED this 16th day of August, 1984, in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2000 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

FILED with the Clerk of the Division of Administrative Hearings this 11th day of August, 1984.

COPIES FURNISHED:

Joseph W. Lawrence, II, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Edward A. Carhart, Esquire

717 Ponce de Leon Boulevard, Suite 331 Coral Gables, Florida 33134

Dorothy Faircloth, Executive Director Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-002340

Orders for Case No: 83-002340