STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-0103

)

STEVEN R. BERNSTEIN, P.T., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James D. Bradwell, held a public hearing in this case on March 19, 1987, in Fort Lauderdale, Florida. The parties were afforded leave to submit post-hearing Memoranda which were considered by me in preparation of this Recommended Order. Proposed findings which are not incorporated herein are the subject of specific rulings in an Appendix to the Recommended Order.

APPEARANCES

For Petitioner: Ray Shope, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Joseph A. Hubert, Esquire

2400 East Commercial Boulevard, Suite 512 Fort Lauderdale, Florida 33308

ISSUE PRESENTED

The issue presented for decision herein is whether or not Respondent's license as a Physical Therapist should be suspended or revoked or the licensee otherwise disciplined for alleged violations of Chapter 486, Florida Statutes, as is more particularly set forth hereinafter and which is contained in a Second Amended Administrative Complaint filed December 12, 1986.

BACKGROUND

Petitioner filed its Second Amended Administrative Complaint herein on December 11, 1986, alleging in two counts that Respondent violated Section 486.091(7), Florida Statutes (1981), by engaging in conduct unbecoming a person registered as a physical therapist or detrimental to the best interest of the public. Petitioner asserted that this Section had been substantially reenacted as Section 486.125(6), Florida Statutes and Rule 21M-9.30, Florida Administrative Code.

On December 30, 1986, Respondent filed a Motion to Dismiss alleging that the conduct alleged in the Second Amended Administrative Complaint occurred between March 1981 and May 1983, which dates were prior to enactment of Rule

21M-9.30, Florida Administrative Code. Petitioner responded in objection to the Motion to Dismiss on January 7, 1987, alleging that that section has been substantially reenacted by Section 486.125(6), Florida Statutes, and Rule 21M- 9.30, Florida Administrative Code. After a conference call for oral argument on the Motion, an Order was issued February 24, 1987, denying the Motion to Dismiss.

At the hearing, the parties stipulated to the facts in paragraphs 1, 2, 4 and 8, and the first sentence in paragraph 3 of the Second Amended Administrative Complaint.

During the hearing, Petitioner took a voluntary dismissal of Count II of the Second Amended Administrative Complaint after a witness failed to appear and testify. Immediately after taking the voluntary dismissal, the witness appeared and counsel for Petitioner moved to withdraw the voluntary dismissal and reopen its case in chief. Thereafter the witness was allowed to testify and the parties submitted memoranda of law in support of their positions. Upon reviewing the memoranda and the record, it is determined that Respondent was not prejudiced in any manner and that the best interests of justice would be served by allowing Petitioner to withdraw its voluntary dismissal and reopen its case in chief rather than forcing Petitioner to follow the circuitous route of refiling the complaint with that count.

At the hearing, Petitioner presented the testimony of Catherine Schillace, Paul Hughes, an expert in physical therapy and Patricia Sears. Petitioner introduced five exhibits which were received in evidence during the hearing.

Respondent presented the testimony of Fran Wade, Susan Trider, Todd Williams, Sue Chestnut, Diane Marie Siweck, Helen Berman and he (Respondent) testified on his own behalf. Respondent introduced two exhibits which were received into evidence during the hearing.

Based upon my observation of the witnesses and their demeanor while testifying, I hereby make the following:

FINDINGS OF FACT

1. Respondent, Steven R. Bernstein, is and at all times material, was a licensed physical therapist having been issued license number PT 0002304. (Stipulation)

   
   

2. Respondent maintained two separate offices in Fort Lauderdale: 4580 North State Road 7, Suite K, and 2951 Northwest 49th Avenue, Suite 308. (Stipulation)

   
   

3. From March 1981 to March 1983, Respondent employed Kathy Schillace as an aide at both of his offices. At no time was Schillace licensed as a physical therapist or a physical therapist assistant. (Stipulation)

   
   

4. Schillace's duties included giving treatments to patients such as electrical stimulation, range of motion exercises and ultrasound.

5. To perform these duties, Schillace reviewed patient charts and determined what procedures were needed based on notations which had been recorded by Respondent or one of his licensed physical therapists employed in one of the two offices.

   
   

6. Schillace received on the job training from Respondent and Susan Trider, a licensed physical therapist, on how to operate the equipment.

   
   

7. Susan Trider supervised Schillace during most of her employment with Respondent. Susan Trider worked for Respondent from November 16, 1981 thru June 21, 1982. Trider was licensed in Florida by endorsement on June 3, 1982. Trider was licensed in Massachusetts in April 1980. (Petitioner's Exhibit 4)

   
   

8. From April 1982 to May 1983, Respondent employed Patricia Sears as an aide at both of his offices.

   
   

9. At no time was Sears licensed as a physical therapist or a physical therapist assistant. (Stipulation)

   
   

10. Sears routinely performed treatments on patients with electrical stimulation, range of motion and ultrasound exercises. Although Sears felt that she did not receive adequate training to do the treatments she performed for patients, it is found that Sears received adequate training and there were ample licensed supervisory personnel on hand to answer any inquires or provide the needed assistance. As example, it is alleged that based on the inadequate training and lack of supervision that Sears received, she burned a patient with the electrical stimulation machine. Upon review of the testimony concerning that incident, it is found that Sears was working under the supervision of an employee of Respondent, Paula Allia, a licensed physical therapist. (Petitioner's Exhibit 1, pages 12, lines 21-25; page 13 lines 1-4).

    
    

11. Respondent had a policy of requiring licensed physical therapists to be on the premises at all times while aides were administering treatment to patients. The training included reviewing contra-indications, the indications, what procedures the equipment was capable of doing, reviewing the operating manuals and explaining the various equipment including hands-on training by licensed personnel. (TR 76-77) Prior to administering any procedures to patients, the aides were given a training exam and they had to demonstrate their abilities by passing the exam and by providing treatment to the licensed personnel. Respondent endeavors to insure that the aides were adequately trained by duplicating the training program that he received while in school to become licensed. (TR 77, lines 23-25) After they were trained, the typical case would be that the aides would only perform procedures diagnosed by a licensed physical therapist. While performing the procedures, licensed therapists were on the premises throughout the period during which the procedures were being administered. (TR 78-79)

    
    

12. The procedures that were performed by the aides were procedures ordered by private physicians and all patients of Respondent's were referred from private physicians.

    
    

13. Respondent constantly checked the administration of procedures by licensed personnel. (Testimony of Fran Wade, TR 97-98. Testimony of Susan Trider, TR 104)

14. During times material herein, the procedures that Respondent's aides performed were the typical procedures engaged in by aides at other hospitals and private physical therapists in South Florida. (Testimony of Todd Williams, (TR 116-117)

    
    

15. Respondent's offices were small and it was possible to hear communications between the patients, aides and the licensed physical therapist constantly monitored the treatment modalities administered by the aides. (Testimony of Respondent, R 92)

    
    

16. In the opinion of Paul Hughes, an expert physical therapist, a physical therapist actively involved in the treatment or who is in the immediate area to provide supervision to an aide, is engaged in an acceptable practice in Florida. (TR 39)

    
    

17. The testimony of other licensed physical therapists herein support Respondent's position that the treatment modalities that Respondent allowed his aides to administer were the type modalities which were considered acceptable by the local community. (Testimony of Diane Siweck, Sue Chestnut, Todd Williams and Fran Wade).

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

19. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

20. The authority of the Petitioner is derived from Chapter 486, Florida Statutes.

    
    

21. Respondent, a licensed physical therapist, is subject to the disciplinary guides of Chapter 486, Florida Statutes.

    
    

22. Section 486.091(7), Florida Statutes (1981), allows Petitioner to take disciplinary action against a licensee for conduct unbecoming a person registered as a physical therapist or detrimental to the best interests of the public.

    
    

23. Insufficient evidence was offered herein to establish that Respondent, based on his employment of Kathy Schillace to perform physical therapist treatments during times material, engaged in conduct within the purview of Section 486.091(7), Florida Statutes (1981). Likewise, insufficient evidence was offered to establish that Respondent, based on his employment of Patricia Sears to perform physical therapist treatments such as ultra sound, heat stimulation and electrical stimulation, engaged in conduct within the purview of Section 486.091(7), Florida Statutes (1981).

    
    

24. In making the above conclusions, consideration was given to the degree of training and supervision provided by Respondent to both Schillace and Sears; the fact that the diagnoses were prepared by licensed personnel and the credited

testimony of other licensed personnel indicating that the conduct here complained of by Petitioner is conduct which comports with the standards employed by other physical therapists in the local community during the period in question.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Administrative Complaint filed herein be DISMISSED.

RECOMMENDED this 29th day of June 1987, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 29th day of June 1987.

COPIES FURNISHED:

Ray Shope, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph A. Hubert, Esquire Paragon Center Suite 512

2400 East Commercial Boulevard Fort Lauderdale, Florida 33308

Dorothy Faircloth, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Van Poole, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Wings T. Benton, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-000103

Orders for Case No: 86-000103