STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, ) BOARD OF MEDICAL EXAMINERS, )
)
Petitioner, )
)
vs. ) Case No. 85-2723
) DPR CASE NO. 0043446
DAVID D. TURNER, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Notice was provided, and on September 3, 1986, a hearing was held in this matter in accordance with Section 120.57(1), Florida Statutes. The location of the hearing was Jacksonville, Florida, and Charles C. Adams served as the hearing officer.
This recommended order is being entered following the receipt and review of the transcript and evidential documents. The parties have submitted proposed recommended orders which have been considered. Opportunity was afforded the parties to require the fact proposals within those proposed recommended orders to be utilized or an explanation given for discarding the fact proposals. Neither party wished to have the hearing officer pursue that exercise and specific comment directed to the proposed facts is not made.
APPEARANCES
For Petitioner: Robert D. Newell, Esquire
200 South Monroe Street Suite B
Tallahassee, Florida 32301
For Respondent: Lamar Winegeart, Esquire
ARNOLD, STRATFORD AND BOOTH, P.A.
Suite 2508
Gulf Life Tower Jacksonville, Florida 32207
ISSUES
The issues raised by this case are those brought about through an amended administrative complaint filed by the State of Florida, Department of Professional Regulation (Petitioner) against David D. Turner, M.D. (Respondent). The stated authority for this action is found in Chapters 455 and 458, Florida Statutes. The allegations against the Respondent concern his treatment of the patient Frank C. Pendleton. The allegations are more completely described in the conclusions of law associated with this recommended order.
FINDINGS OF FACT
Part A. Facts which are alleged in the Administrative Complaint, admitted by Respondent:
Petitioner, the Department of Professional Regulation, is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 458, Florida Statutes.
Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME 0010840. Respondent's last known address is Post Office Box 267, Orange Park, Florida 32073.
At all times material hereto, Respondent was employed by the Pureal Medical Center as a physician.
On or about February 4, 1983, Respondent examined patient Frank C. Pendleton, at the Pureal Medical Center, for complaints of chest pain. Respondent made no contemporaneous written diagnosis of patient Pendleton's condition. Respondent admitted patient Pendleton to the Pureal Medical Center for observation, and testing was ordered.
Patient Pendleton remained at the Pureal Medical Center until on or about February 8, 1983.
On or about February 4 and 5, 1983, Respondent ordered the following procedures/tests for patient Pendleton:
Chest x-ray
Serum Glutamic Oxaloacetic Transaminase ("SGOT")
Serum Glutamic Pyruvic Transaminase ("SGPT")
AlphaHydroxybutyric Dehydrogenase ("HBD")
Electrocardiogram
The total cost for patient Pendleton's stay at the Pureal Medical Center was
$871.00. This amount included the following charges:
days | at $115.00 75.00 | |
c) Supplies | 34 00 | |
d) Cardiac monitor | 42.00 | |
e) X-ray | 30.00 | |
f) Two EKG's | 55 00 | |
g) Doctor's admission examination | 75.00 | |
h) Four (4) follow-up visits by Doctor at $25.00 per visit TOTAL | 100.00 $871.00 | |
General care, four (4) per day $460.00
Laboratory services
On or about February 15, 1983, insurance claims were submitted by the Pureal Medical Center and Respondent for the treatment of patient Pendleton between on or about February 4, 1983, and on or about February 8, 1983. On the Insurance Claim Form submitted by Respondent to Blue Cross Blue Shield, the nature of patient Pendleton's illness was described to include hypertension, Tachycardia, shortness of
breath and severe chest pain from unknown etiology.
On or about February 8, 1983, Respondent transferred and admitted patient Pendleton to Baptist Medical Center for further evaluation. The admitting diagnosis included Hiatus Hernia with reflux, and a request to rule out coronary artery disease.
Patient Pendleton remained in the Baptist Medical Center until on or about February 19, 1983.
During the above-mentioned hospitalization at Baptist Medical Center, the following testing was performed on patient Pendleton:
Electroencephalogram ("EEG")
Echocardiogram
EKG
Esophageal mobility study and Burnstein test
Right and left catheterization with coronary arteriography
A second EKG
Gall bladder study
CAT scan of the head
Thyroid profile
A KUB following the heart catheterization
Upon admission of patient Pendleton to Baptist Medical Center, Respondent obtained four (4) consultations from other physicians about patient Pendleton's condition.
Respondent prepared a discharge summary for patient Pendleton, upon discharge of the patient, and listed the following diagnosis therein:
Coronary artery spasm, nitroglycerin relieved
Hyperventilation syndrome
Anxiety neurosis with conversion and depression
The total fee for Respondent's services for treatment of patient Pendleton during the above-mentioned hospitalization at Baptist Medical Center was $350.00. This amount included a charge of $275.00 for eleven hospital visits at $25.00 per visit and a $75.00 charge for a discharge summary.
On or about February 24, 1983, patient Pendleton presented at the Pureal Medical Center. At the time, patient Pendleton's complaint was right-sided chest pain.
On February 24, 1983, the admitting diagnosis for patient Pendleton included right pleural effusion, pneumonitis, and right pulmonary embolism, and a request to rule out congestive heart failure.
On or about February 24, 1983, in the emergency room at Baptist Medical Center, a chest x-ray disclosed a right pleural effusion with some evidence of pneumonitis.
A consultation was obtained by Respondent from John M. Moorehead, M.D., on or about February 24, 1983. Based upon Dr. Moorehead's examination of patient Pendleton and his evaluation of the chest x-ray taken February 24, 1983, Dr. Moorehead diagnosed patient Pendleton as suffering from a pulmonary embolus and instituted appropriate treatment.
While patient Pendleton was in Baptist Medical Center between February 24, 1983, and March 15, 1983, Dr. Moorehead was not the attending physician but was the primary treating physician for patient Pendleton.
Patient Pendleton was discharged from Baptist Medical Center, on or about March 16, 1983.
The total fee requested for Respondent's services in reference to patient Pendleton's hospitalization at Baptist Medical Center between on or about February 24, 1983, and on or about March 16, 1983, was $1,100.00. This amount included a
$125.00 charge for admitting the patient; a
$900.00 charge for eighteen (18) hospital visits at $50.00 per visit; and a $75.00 charge for discharge and summary.
27. On the discharge summary prepared by Respondent for patient Pendleton for the hospitalization between on or about February 24, 1983, and on or about March 15, 1983, Respondent listed the following final diagnosis:
Massive pulmonary infarct right lung with pleural effusion and atelectasis
Underlying Pneumonitis
Pulmonary emboli, origin unknown d) Right coronary stenosis, fifty (50) percent
Part B. Facts found based upon an examination of the record established at hearing:
Respondent is a graduate of Marietta College, from which he obtained a Bachelor of Science degree in 1947. He then received a Master of Medical Science from Ohio State University and his M.D. degree from the University of Cincinnati. The M.D. degree was earned in 1951. Dr. Turner is Board certified in family practice and surgery. He specializes in abdominal surgery.
Dr. Turner, in addition to licensure within the state of Florida, is licensed to practice medicine in California and New York.
Dr. Turner has not been the subject of disciplinary action prior to this occasion.
Dr. Turner practices medicine at an office in Orange Park, Florida. That office is known as the Pureal Medical Center. He is an employee at that location. His employer is
Dr. Marcus D. Bergh, a medical doctor. Dr. Bergh is a Board certified family practitioner licensed in Florida.
In performing his function as a family practice physician, Respondent is involved in what he describes as general practice in the overall medical management of family health care. Examples of his involvement include surgical, obstetrical, and medical.
Dr. Turner is on the active staff of the Baptist Medical Center which is located in Jacksonville, Florida. That staff activity is related to family practice. He also has courtesy staff privileges at Memorial Medical Center and St. Luke's Hospital in Jacksonville, Florida. His staff privileges existed at Baptist Medical Center at all times relevant to this inquiry.
Dr. Turner limits his hospital practice to the admission of patients and the use of consultants to perform primary care.
When the patient Pendleton presented himself at the Pureal Medical Center on February 24, 1983, in addition to his complaint of right-side chest pains, he was experiencing shortness of breath and had a flushed appearance. The patient was sweating and was unstable on his feet. The impression that Dr. Turner had of Pendleton's condition at the time was one of a form of severe pulmonary insult. Dr. Turner arranged for the admission of Pendleton to Baptist Medical Center through contact with the emergency room at that facility. It was Dr. Turner's expectation that Pendleton would be seen by contract physicians working for Baptist Medical Center who specialized in pulmonary problems. Those physicians were Dr. John M. Moorehead and one Dr. Reed.
Mr. Pendleton's wife drove him to the emergency room on February 24, 1983. Dr. Turner had talked to someone at Baptist Medical Center before Pendleton's arrival at that facility and indicated that he wished to have Pendleton's chart pulled from the prior hospitalization described and to be seen by an emergency room physician as soon as possible.
After arriving at the emergency room, Dr. Rodriguez, an emergency room physician, examined the patient Pendleton and conducted certain tests, which included chest x-ray, urinalysis and blood work. Dr. Rodriguez made a preliminary diagnosis of pleural effusion in the right lung. There was some possibility
at that time of congestive heart failure. When Dr. Rodriguez explained his impression of the case to Respondent, Dr. Turner requested that Dr. Rodriguez contact one of the pulmonary specialists on the hospital staff, Dr. Reed or Moorehead.
Dr. Moorehead responded to this request, and as described, from February 24, 1983, to March 15, 1983, served as the primary treating physician for the patient Pendleton. Dr. Moorehead's involvement with the case is summarized in Petitioner's Exhibit 6 admitted into evidence, which is a copy of the medical records of the patient Pendleton during the hospitalization from February 24, 1983, to the discharge date of March 16, 1983.
On the evening of February 24, 1983, Respondent went to the Baptist Medical Center and while there reviewed information about the patient's admission, including examination of the authorization for treatment signatures and the emergency room physician's report. Dr. Turner also looked at Dr. Moorehead's remarks that were given as a consultant.
Turner saw the patient Pendleton on the evening of February 24, 1983. He has no specific recollection of any conversation with the patient. Dr. Turner does recall that the patient offered no resistance to Respondent's attempt at making a physical examination. Following this examination, Respondent prepared the patient history and physical, and the details of that history and physical may be found in Petitioner's Exhibit 6.
Notwithstanding the suggestion by Mr. Pendleton and his wife that they had dismissed Dr. Turner from any involvement with Mr. Pendleton's case during his hospitalization from February 24, 1983, to March 16, 1983, that testimony is not credited. Therefore, Dr. Turner is found to be the admitting physician and in attendance of the patient during the period February 24, 1983, to March 16, 1983, while Pendleton was being treated at Baptist Medical Center. Attendance, in this instance, principally means the technical involvement in Pendleton's case sufficient to maintain Pendleton as a patient at Baptist Medical Center. This is as distinguished from active case management, attending, other than to the limited extent which is described subsequently. This arrangement of continuing to be associated with the case was necessitated by the fact that Dr. Moorehead, the principal treating physician, as a contract doctor to the hospital did not have admitting privileges and the authority to act as independent contractor in the case during
the patient's stay.
In describing his involvement with the patient Pendleton during the February 24, 1983, through March 16, 1983, stay at Baptist Medical Center, Respondent indicated deference to the role of the primary treating physician, Dr. Moorehead. Dr. Turner said that he was not in a position to second guess Dr. Moorehead; however, he stated that he felt that it was his responsibility to see that Dr. Moorehead maintained direction and that the patient was progressing safely and having his needs and wants attended on a day-to-day basis. To accomplish these outcomes, Dr. Turner made daily rounds. He would pull the chart related to Mr. Pendleton, read the nurses notes, and read the consulting physician's notes. In his role as physician, Dr. Turner felt he had to make certain that a progress note was entered every two or three days by some physician, but not necessarily by Dr. Turner. It was sufficient in Dr. Turner's mind that Dr. Moorehead met this requirement for progress notes. Dr. Moorehead made numerous notes in the patient's chart, and they indicated entries on a daily basis during the patient's stay until Dr. Moorehead had completed his relationship with the case.
Some contact was made with Dr. Turner by hospital personnel through telephone calls while Mr. Pendleton was in his second stay at Baptist Medical Center in the year 1983. In these instances comments were made to the effect that Mr. Pendleton didn't look so good or his color was dark or that he was using four liters of oxygen, or concerning diagnostic matters. On these occasions, Dr. Turner would refer the inquiry back to Dr. Moorehead.
Dr. Turner concedes that a limited number of chart entries were made related to his assessment of the patient Pendleton's condition during Pendleton's February 24, 1983, through March 16, 1983, stay at Baptist Medical Center. At the hearing Dr. Turner expressed his regret at not making notations in the chart on a daily basis. On the other hand, he indicates his belief that the JCAH standards did not require such notation, to his knowledge. He points out that his observations would only be that of confirming the remarks of Dr. Moorehead. Finally, Dr. Turner did not believe that his remarks would have advanced the treatment of the patient.
Pendleton was released from the hospital in the February 24, 1983, through March 16, 1983, stay based upon Dr. Moorehead's suggestion that the patient could be discharged and
instructions to have this confirmed with Dr. Turner. Dr. Turner did confirm the acceptability of releasing the patient.
Actual face-to-face visits between Dr. Turner and the patient during the February 24, 1983, through March 16, 1983, stay were three or four in number. Dr. Turner explained that he did not go in and bother the patient at times that he would be making rounds late at night, as he did not wish to disturb the patient. Moreover, Dr. Turner did not feel that there were any medically indicated reasons for seeing the patient personally other than compliance with by-laws of the hospital related to attending physicians. Respondent did not feel that he needed to give examinations to the patient as a physician, unless other problems unrelated to the primary diagnosis indicated the need to make those examinations. Limited problems did occur, to include one problem with constipation which was addressed by Dr. Turner and the Respondent's ordering of pain medication near the end of the patient's stay in the hospital. This pain medication was pursuant to telephone order from Dr. Turner.
On the occasions in which the Respondent actually saw the patient Pendleton in the above-described hospitalization, he would confer with the patient and ask if there were problems that needed to be attended. This conversation would take place after examination of the patient's chart. In one of the visits, which took place on February 27, 1983, a progress note was made about the patient's involvement with asbestos. During his hospital stay, the patient voiced some concern to the Respondent about chest pains. Dr. Turner indicated that the nature of the visits that were taking place would be more of a social visit, were it not for the fact that he felt legally obligated as the attending physician. For that reason, Dr. Turner felt that he was involved with a circumstance other than a social visit.
Dr. Turner caused the patient Pendleton to be charged
$50 a day for the period of hospitalization February 24, 1983, through March 16, 1983, related to eighteen different days. Dr. Turner describes these billing situations as "visits" to the patient. As described, of the eighteen billing instances, only three or four pertained to actual face-to-face contact with the patient. Dr. Turner asserts that the effort which he devoted to the care of the patient Pendleton which would entitle his employer, Pureal Medical Center, to charge $900 was not so much related to medical care as it was related to making sure that nothing else had developed pertaining to previous problems such as ulcers, cardiac, and things that might involve other possible problems with the patient's health. This effort was in the way
of monitoring the patient's circumstance, according to Dr. Turner. Dr. Turner believes that a "visit" to the patient is synonymous with activity .involved with the physician who is making rounds and not necessarily face-to-face contact.
According to Respondent, a "visit" as it related to the patient Pendleton could be seen as the mere examination of medical records about the patient on each day that the Respondent came to the hospital during Pendleton's stay.
Dr. Turner had no contact with Dr. Moorehead, the principal treating physician, during the course of Pendleton's treatment in the period February 24, 1983, through March 16, 1983.
Dr. Bergh, who is responsible for the establishment of a physician's fees to be charged by Pureal Medical Center for hospital visits which were done by the Respondent in various hospitals where the Respondent had admitting privileges, indicated that those charges were $20 per visit per day prior to 1983. Beginning January 1983, the costs were elevated to $25 per visit per day until August of 1983, and then those fees went to $50 per visit per day. The basis for the billing was premised on the time of billing, not the time of visit. This explains the $50 charge per visit per day that was made based upon Respondent's involvement with the patient Pendleton during the period February 24, 1983, through March 16, 1983. The billing took place after the fees were raised to $50 per visit per day. The fees, according to Dr. Bergh, were raised from $25 to $50 based upon the amount of time necessary for Dr. Turner to travel the fifteen miles from Orange Park to the Jacksonville area hospital and return and the amount of work involved with patients in those hospitals. Dr. Bergh did not feel that the
$50 charge was exorbitant. Some of the items that Dr. Bergh indicates that his organization took into account in raising the fee to $50 include rate for hospital and doctor charges in Duval County, Workman's Compensation rates for doctors and hospital charges, and articles in a newspaper.
Agnes Davis, an employee of Pureal Medical Center, was essentially responsible for increasing the per-visit-per-day charges of 1983 to $50. She had been involved with medical claims work with the Traveler's Insurance Company, and felt that the charges that were being made before the increase were not in keeping with comparable charges by other area doctors. In arriving at the computation of the $50 charge, she references Dr. Turner's Board certification as a family practitioner.
Dr. Bergh was responsible for establishing the policy of Pureal Medical Center on the subject of hospital visitation by Dr. Turner. Dr. Bergh, as Respondent's employer, shares Dr. Turner's opinion of what constituted a "visit" at the time the patient Pendleton was hospitalized at Baptist Medical Center from February 24, 1983, through March 16, 1983. Again, this concept was such that Dr. Turner need only examine medical records to conclude an event for which a $50 so-called "visit" fee could be imposed based upon the scale in place at the time the billing was done on the Pendleton account. It was not necessary, according to Dr. Bergh, for the Respondent to make any form of annotations in the patient's chart in order to count the activity by the Respondent as being a "visit." This idea of exemption from record keeping is consistent with the Respondent's beliefs as set forth already.
Dr. Bergh identified the fact that the charges of Pureal Medical Center were eventually reconsidered, and sometime after September 1983, a month or so later within that calendar year, charges were reduced from $50 per visit per day to 535 per visit per day. He also describes the circumstance by which the amount of charge per visit per day of $50 came about. This occurred due to delays in billing the patient Pendleton for the hospitalization February 24, 1983, through March 16, 1983, associated with personnel problems at Pureal Medical Center.
In addition to the $900 charges for "visit," in the hospitalization of February 24, 1983, through March 16, 1983, an admitting charge of $125 and an expense item of $75 for the discharge summary done by Dr. Turner were imposed against Mr. Pendleton, as described. These charges were reflections of increases in the amounts charged for these services in addition to the preparation of the history and physical, prepared the discharge summary related to the patient Pendleton, and that is found as part of Petitioner's Exhibit 6. Other than those already discussed, Dr. Turner gave no other orders and made no other entries in the medical records pertaining to the patient Pendleton during his stay from February 24, 1983, through March 16, 1983.
At the instigation of Dr. Turner, the $1,100 in charges for Dr. Turner's services to the patient Pendleton during the period February 24, 1983, through March 16, 1983, have been paid to Pureal Medical Center by Pendleton's insurance carrier. Respondent did not transmit the request for payment of fees related to his treatment of the patient Pendleton. This task was fulfilled by the administrative arm of the Pureal
Medical Center.
Dr. Marshall H. Burns, a physician who has been licensed in the state of Florida for a period of twenty-five years and who holds Board certification in internal medicine, offered testimony concerning Respondent's care of the patient Pendleton during the period February 24, 1983, through March 16, 1983. Dr. Burns also spoke to the propriety of the charges for that treatment. Dr. Burns, in addition to his certification in internal medicine, has a cardiology practice in the Jacksonville area. He is familiar with prevailing medical standards for the admission and treatment of patients with internal disorders. He is also familiar with the fee structure for internist and family practitioners in the Duval County area in 1983. This familiarity includes the geographic area in which Dr. Turner practiced in 1983. Prior to 1983, Dr. Burns had been involved with the Duval County Medical Society insurance review committee. In 1983 his familiarity with fee charges related to discussions with colleagues and his coverage partners.
In preparing himself to give testimony about the propriety of treatment and charges involved in the Respondent's care of the patient Pendleton during the period February 24, 1983, through March 16, 1983, Dr. Burns reviewed the materials set forth in Petitioner's Exhibit 6. He looks upon the job of the admitting physician as being to follow the treatment, diagnosis, and progress of patients admitted, even where medical consultants have taken over case management. Dr. Burns believes a consultant takes over the intense management of the case, in a case such as Pendleton's wherein Dr. Moorehead was the principal physician. Dr. Burns does not feel that the admitting physician is necessarily attending the patient. Dr. Burns' expression of what it means to be in actual attendance of a patient such as Pendleton is accepted, and it is found that Dr. Turner, with the exception of the two instances of his providing orders, the preparation of the admitting history and physical and the discharge summary, and the total of three or four visits made to the patient Pendleton was not attending the care of that patient. Dr. Burns feels that a visit to a patient means the actual involvement with the patient through seeing the patient, assessing the patient, talking to the patient, looking at the patient and making at least a limited examination. This definition of a patient visit is accepted and the more liberal definition of a patient visit set forth by Drs. Turner and Bergh in describing involvement with the patient Pendleton is rejected.
Dr. Burns believes, and his opinion is accepted, that if Turner were to be considered the attending physician, he, Turner, was responsible for seeing the patient on a daily basis or every other day at the minimum. Under the facts in this case, Dr. Turner's activity cannot be perceived as that of an attending physician, other than those instances as described. Other than those occasions, accepting Dr. Burns' definition, the chart review is not attendance and is not billable as a visit. Dr. Burns believes, and his opinion is accepted, that charting or record entries should have been made related to the three or four visits by the Respondent. Dr. Turner gave only one indication of the patient's progress in the physician's records for the patient Pendleton during the period between February 24, 1983, through March 16, 1983. His other recorded visit dealt with the initial patient history and physical. This left one or two visits unexplained in the patient record. If Dr. Turner intended to be considered the attending physician, reference notes should have been made related to the other visit(s) with the patient Pendleton, visit(s) on this occasion, meaning visits as defined by Dr. Burns. As Dr. Burns established, those progress notes needed to be written at least every other day if the visit(s) transpired on consecutive dates. The progress notes are also important to assist other medical doctors and nurses, directed to affording good care for the patient, this as shown by the testimony of Dr. Burns.
Dr. Burns acknowledges that there were circumstances in which Dr. Turner, the admitting physician, might have desired to attend other needs of the patient Pendleton unrelated to the pulmonary condition; however, Dr. Turner did not set out to address any other areas of Pendleton's health and in fact did not address those other health related matters, with the limited exceptions as related above.
As described by Dr. Burns, if Dr. Turner intended to bill the patient Pendleton $50 per day, he should have seen him on a daily basis or as close to that arrangement as possible. Dr. Turner only saw the patient three or four times, and yet he billed the patient for eighteen visits.
Dr. Burns indicated on the topic of the amount of fee charged that he presently charges a standard fee of $30, and his fee in 1983 was in the range of $25. The $50 fee was double what he would have anticipated as a charge per visit in this category of care in 1983 in the Jacksonville area, at the least. The charges for the admission of the patient, in Dr. Burns' mind, should not exceed $100; therefore the $125 that Dr. Turner
charged Pendleton for admission on February 24, 1983, was excessive, or, as Dr. Burns described it, "far out of line." Dr. Burns felt that the discharge summary for the patient Pendleton. Dr. Burns' opinion on the excessive amounts of the charges is accepted.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.
Count 1 of the amended administrative complaint charges the Respondent with violation of Section 458.331(1)(i), Florida Statutes, in that he is accused of:
. . . making or filing a report which he knew to be false, intentionally or negligently failing to file a report or a record required by state or federal law, wilfully 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.
In examining the facts of this case, none of the activities of the Respondent are foreseen by the expressed prohibitions set forth in the quoted statutory section. Arguably, the Respondent's action in advising his office of charges, which were excessive, for services rendered to the patient Pendleton and for case involvement described as a visit, when in effect no activity for which charges for visitation could be claimed, constitutes some form of false report. However, this information imparted to the office staff does not constitute action on the part of the Respondent related to the signing of a report or record in his capacity as a licensed physician.
Consequently, Petitioner has failed to establish all the elements of the offense, and this count should be dismissed.
The original administrative complaint included a Count
2 which, through the amendment process, was deleted. In view of this action, Count 2 was and is dismissed.
The third count of the amended administrative complaint charges the Respondent with the violation of Section 458.331(1)(1), Florida Statutes, which states:
. . . 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.
The act of charging the patient Pendleton for fourteen or fifteen visits during the hospitalization of February 24, 1983, through March 16, 1983, when in fact visits in terms of actual involvement with the patient were not made, is deceptive and is fraud in a relationship involving the practice of medicine, and constitutes a trick or scheme in the practice of medicine, in a circumstance failing to conform to the generally prevailing standards of treatment in the medical community. For this violation, Respondent is subject to the penalties set forth in Section 458.331(2), Florida Statutes.
Count 4 to the amended administrative complaint charges the Respondent with violation of Section 458.331(1)(n), Florida Statutes. That provision states:
. . . failing to keep written medical records justifying the course of treatment of the patient, including but not limited to, patient history, examination results, and test results.
On the fourteen or fifteen occasions on which the patient Pendleton was not seen by the Respondent in the period February 24, 1983, through March 16, 1983, and for which the patient Pendleton was billed, no course of treatment was being pursued. Therefore, the Respondent, being in the posture of offering no meaningful medical management of the patient's health, medical records would serve no useful purpose and are not mandated. It is found that Respondent saw the patient Pendleton three or four times during the course of the hospitalization. The medical records for the patient during this period indicate an examination of the patient on February 24, 1983, as described in the history and physical dictated by the Respondent. A second visit was accounted for on February 27, 1983, in which the physician's progress record reflects the Respondent's comments. The other one or two visits by Respondent are not documented and demonstrate a violation of the present provision. For this violation Respondent is subject to the penalties set forth in Section 458.331(2), Florida Statutes.
Count 5 to the amended administrative complaint charges the Respondent with violation of Section 458.331(1)(o), Florida Statutes, in that he is said to be guilty of:
. . . 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 a third party. . .
In participating in the billing of the patient Pendleton in a scheme which called for charges above acceptable limits and in charging the patient Pendleton in fourteen or fifteen instances in which there was no real visitation or contribution to the patient's welfare, Respondent exercised an influence on the patient in a manner which was exploitative of the patient for the financial gain of the Respondent and his employer, Pureal Medical Center. For these events associated with the patient Pendleton's hospital stay of February 24, 1983, through March 16, 1983, Respondent is guilty of a violation of the provision. For this violation, he is subject to the penalties set forth in Section 458.331(2), Florida Statutes.
Count 6 to the amended administrative complaint charges the Respondent with violation of Section 458.331(1)(t), Florida Statutes, in that Respondent is guilty of:
. . . gross or repeated malpractice or the failure to practice medicine with that level of care, skill and treatment which is recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances. . .
For reasons as set forth in preceding paragraphs of these conclusions of law, in which discussion is made of the treatment of the patient Pendleton in the period February 24, 1983, through March 16, 1983, Respondent is found to have failed to practice medicine with that level of care, skill and treatment which is recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances.
His actions in this regard do not constitute gross or repeated malpractice. For the violation, he is subject to the penalties set forth in Section 458.331(2), Florida Statutes.
Count 7 to the amended administrative complaint charges the Respondent with violation of Section 458.331(1)(x), Florida Statutes by:
. . . violating any provisions of Chapter 458, Florida Statutes and/or rule of the Board or Department.
This is read to mean provisions other than discussed in the
previous counts or other than additional grounds set forth in Section 458.331, Florida Statutes. In order to sustain this charge, those provisions of statute and/or rule must be described, and they are not described in this instance.
Therefore, this count should be dismissed.
Based upon a full consideration of the facts found and conclusions of law reached, it is,
That a final order be entered finding the Respondent | in | |
violation of the statutory provisions set forth in Counts | 3, | 4, |
5 and 6 and dismissing Counts 1, 2 and 7. As penalty, | ||
Respondent should be suspended from practice for a period | of | 10 |
days. |
DONE AND ENTERED this 13th day of November, 1986, at Tallahassee, Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1986.
COPIES FURNISHED:
Robert D. Newell, Esquire
200 South Monroe Street Suite B
Tallahassee, Florida 32301
Lamar Winegeart, Esquire
ARNOLD, STRATFORD AND BOOTH, P.A.
Suite 2508
Gulf Life Tower Jacksonville, Florida 32207
Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Wings Slocum Benton, Esquire General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Fred Roche, Secretary Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
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AGENCY FINAL ORDER
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=
BEFORE THE BOARD OF MEDICINE DEPARTMENT OF PROFESSIONAL
REGULATION
Petitioner, DPR Case No. 00043446 DOAH Case No. 85-2723
vs. LICENSE No. ME0010840
DAVID D. TURNER,
Respondent.
/
FINAL ORDER
This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)(9), Florida Statutes on February 7, 1987, in Jacksonville, Florida, for the purpose of considering the hearing officer's Recommended Order (a copy of which is attached hereto as Exhibit A) in the above-styled cause.
Petitioner, Department of Professional Regulation, was represented by Stephanie A. Daniel, Esquire. Respondent was present and represented by Lamar Winegeart, III, Esquire.
Respondent filed Exceptions to Recommended Order (a copy of which is attached hereto as Exhibit B). A specific ruling on each Exception is included in the Appendix, which is attached to and incorporated into this Final Order.
Upon review of the Recommended Order, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions.
FINDINGS OF FACT
The findings of fact set forth in the Recommended Order are approved and adopted an-d incorporated herein, with the exception that paragraph 22 is amended to state: "Dr. Turner had no effectual contact with Dr. Moorehead."
There is competent substantial evidence to support the findings of fact.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.
The conclusions of law see forth in the Recommended Order are approved and adopted and incorporated herein.
There is competent substantial evidence to support the conclusions of law.
Upon a complete review of the record in this case, the Board determines that the penalty recommended by the Hearing Officer be REJECTED as too lenient under the circumstances. The Board finds that Respondent's act of charging the patient for care not actually rendered was exploitative of the patient for the financial gain of the Respondent and his employer, and should be punished accordingly. WHEREFORE,
IT IS HEREBY ORDERED AND ADJUDGED that
Respondent's license to practice medicine is REPRIMANDED.
Respondent shall pay an administrative fine in the amount of 54000.00 to the Executive Director within 30 days of the date this Final Order is filed.
Respondent's license to practice medicine in the State of Florida is SUSPENDED for a period of 6 months, the first 4 months of said suspension to run concurrently with the 4 month suspension imposed in Case No. 86-1784.
Upon termination of the suspension, Respondent's license to practice medicine in Florida shall be placed on probation for a period of 5 years, concurrent in pertinent part with the 5 year probation imposed in Case No. 86-1784, subject to the following terms and conditions:
Respondent shall appear before the Board at the first meeting after said probation commences and at the last meeting of the Board preceding termination of probation.
Respondent shall submit semi-annual reports, in affidavit form, the contents of which shall be specified by the Board. The reports shall each include:
Brief statement of why he is on probation; Practice location;
Describe current practice (type and composition);
Address compliance with probationary terms; and
Advise Board of any problems.
Respondent understands that during the course of the probation, semi-annual reports shall be prepared by the Investigators with the Department detailing Respondent's compliance with the terms and conditions of this probation. Respondent waived confidentiality of these reports as to the Department and the Board only so that the Board may review these reports.
If Respondent resides or practice outside the State of Florida continuously for thirty (30) or more days, such time shall not be counted as part of the probationary period. He must immediately notify the Board at the time he leaves the state and when he returns to the state and must keep current residence and business addresses on file with the Board.
This Order takes effect upon filing.
Pursuant to Section 120.59, Florida Statutes the parties are hereby notified that they may appeal this final order by filing one Copy Of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty days of the date this order is filed, as provided in Chapter 120, Florida Statutes, and the Florida Rules of Appellate Procedure.
DONE AND ORDERED this 26th day of February, 1987.
BOARD OF MEDICINE
JAMES N. BURT, M.D. CHAIRMAN
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing FINAL ORDER has been provided by certified mail to David D. Turner, M.D., Post Office Box 267, Orange Park, Florida 32073, and Lamar Winegeart, III, Esquire, Suite 2508, Gulf Life Tower, Jacksonville, Florida 32207; by U. S. Mail to Charles C. Adams, Hearing Officer, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32302, and by hand delivery to Stephanie A. Daniel, Esquire, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32301 at or before 5:00 p.m. this 26th day of February, 1987.
APPENDIX
The following are specific rulings on Exceptions to Recommended Order filed by Respondent.
Rejected, there is competent, substantial evidence in the record to support the finding at issue of the Hearing Officer. See pages 180, 181, 250, and 251 of the transcript. It was Respondent's "accurate" reporting to the staff of the Pureal Medical Center which "caused" the charge.
Granted; paragraph 22 of the Findings of Fact of the Recommended Order is amended to state: "Dr. Turner had no effectual contact with Dr. Moorehead."
Rejected; there is competent, substantial evidence in the record to support the finding at issue of the Hearing Officer. See response to Exception No. 1.
Rejected; there is competent, substantial evidence in the record to support the finding at issue of the Hearing Officer.
Rejected; there is competent, substantial evidence in the record to-support the finding at issue of the Hearing Officer.
Rejected; there is competent, substantial evidence in the record to support the finding at issue of the Hearing Officer.
Rejected: there is competent, substantial evidence in the record to support the finding at issue of the Hearing Officer.
| Issue Date | Proceedings |
|---|---|
| Nov. 13, 1986 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 26, 1987 | Agency Final Order | |
| Nov. 13, 1986 | Recommended Order | Charging his patient for hospital visits when the doctor had no actual involvement with patient was fraudulent. Recommended ten day suspension. |
