STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0570

)

PETRU ORASAN, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

For Petitioner: Julie Gallagher, Esquire

Tallahassee, Florida

For Respondent: Petru Orasan, M.D., pro se

Hollywood, Florida

A hearing was held on April 2, 1987, in Fort Lauderdale, Florida, by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings. A transcript of the hearing was filed and the parties filed proposed findings of fact and conclusions of law. Rulings on proposed conclusions of law are contained in the Appendix to this Recommended Order.

ISSUES

The issue is whether Dr. Orasan violated Section 458.331(1)(n), Florida Statutes (1985), by failing to keep medical records that justify the course of treatment for two (2) patients, and whether he violated Section 458.331(1)(t), Florida Statutes (1985), by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances by failing to order any laboratory testing to determine the efficacy of the course of treatment he prescribed for a patient.

FINDINGS OF FACT

1. Dr. Orasan is a licensed physician in the State of Florida holding license number ME 0022079. He has been licensed in Florida since 1974. There is no evidence of any prior charges against Dr. Orasan in Florida or anywhere else he has practiced.

   
   

2. Dr. Orasan treated an undercover agent of the Broward County Sheriff's Office, Jodie Raft, during the period July 3, 1985, to October 10, 1985.

3. Officer Raft used the name of Jodie Rafferty when she sought treatment from Dr. Orasan on three different occasions, and on a fourth where she accompanied another undercover deputy seeking treatment from Dr. Orasan, Joseph Damiano. For purposes of this order officer Raft will be referred to as Jodie Rafferty.

   
   

4. When she first came to Orasan's office on July 3, 1985, Rafferty filled out a patient history form. Upon seeing Dr. Orasan, her chief complaint was her inability to relax with her boyfriend. Rafferty said she had previously been given Valium by a doctor in New York and it had helped her in interaction with a boyfriend there. By her appearance, her complaints, and clinical examination revealing a positive Chvosteck's sign and spots on her fingernails, Dr. Orasan determined that she had a calcium deficiency (which he referred to as spasmofilia), anxiety and reactive neurosis. He prescribed calcium and gave her a prescription for a small quantity of Valium for anxiety (60 2mg. tablets).

   
   

5. After making his diagnosis on the facts set out above, Dr. Orasan did not order diagnostic blood testing to validate the diagnosis of a calcium deficiency.

   
   

6. Dr. Orasan examined Rafferty on two more occasions, September 19, 1985 and October 10, 1985. His clinical examination continued to reveal a positive Chvosteck's sign and an indication from the fingernails that there was an underlying calcium deficiency. He continued to prescribe small quantities of Valium and a calcium supplement.

   
   

7. An expert for the Board of Medicine opined that routine blood work should have been done to obtain a serum calcium level, and that the failure to have blood tests done on Rafferty (or at least to recommend them and note this in her records if Rafferty had indicated resistance to the cost of the test), constituted a 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. Dr. Orasan contends that his clinical findings justified the diagnosis of low calcium, and that testing to confirm this would be redundant and wasteful of the patient's money.

   
   

8. Regarding the records kept on Rafferty, the entries made in Dr. Orasan's own medical records form with regard to the history, physical examination, diagnostic impressions and plan of treatment are exceedingly brief and inadequate.

   
   

9. On October 17, 1985, Joseph Damiano, using the name Joseph Delano, came with Rafferty for a consultation with Dr. Orasan. Delano filled out a medical form for the receptionist. When he saw Dr. Orasan, Delano explained he wanted Valium to increase sexual longevity. Orasan checked Delano's blood pressure, reflexes and found a positive Chvosteck's sign. He determined that Delano also had a calcium deficiency and prescribed a small quantity of Valium for anxiety and premature ejaculation (60 10mg tablets).

   
   

10. Dr. Orasan emphasized to Delano, as he had to Rafferty, the addictive quality of Valium, and emphasized that it should not be used for a long period or in large doses. The expert witness for the Board of Medicine found that the actual interviews which Orasan had with the patients (which had been taped and the transcriptions of which were entered into evidence), justified the

    prescriptions for the small quantities of Valium, and that Dr. Orasan "exercised good to excellent judgment and control over how [he] wrote the prescriptions and the advice he gave to the patients. Particularly, in the advice [he] gave to the patients, I must comment that I believe that that is above community standard" (Tr. 89).

    
    

11. With regard to his records, Dr. Orasan, himself, admitted to some deficiency in the charts and conceded that "they were perhaps two of the worst charts in my life". (Tr. 108.) The office charts kept on both patients were inadequate. Dr. Orasan prefers not to record a diagnosis of sexual dysfunctions such as anxiety or premature ejaculation. He believes these conditions may be transient, but health insurers or others who may later have access to the records may view such diagnoses as indication of psychosis and cause patients difficulties such as denial of insurance. This belief fails to justify the brevity of the records. The problem with the records is not just with the diagnosis, but also with the inadequate record of history and clinical findings.

    
    

12. With respect to the charge of malpractice by not obtaining serum calcium levels on patient Rafferty, there is not clear and convincing evidence that Dr. Orasan's performance failed to meet prevailing standards of practice in the Broward County medical community. Dr. Orasan's difference in approach from the Department's expert is one of relative emphasis on the usefulness of the information to be derived from testing, when balanced against the cost of testing. These two doctors disagree. The evidence taken as a whole is not persuasive that Dr. Orasan's judgment that further testing was unnecessary constituted malpractice.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over this matter pursuant to Section 120.57(1), Florida Statutes.

    
    

14. Dr. Orasan twice violated Section 458.331(1)(n), Florida Statutes (1985), by failing to keep medical records sufficient to justify the course of treatment of "patients" Jodie Rafferty and Joseph Delano, including patient histories, examination results and course of treatment.

    
    

15. Dr. Orasan did not violate Section 458.331(1)(t), Florida Statutes (1985), by failing 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 when he failed to order or recommend routine blood testing to validate his diagnosis for patient Jodie Rafferty. (No similar charge was made with respect to Joseph Delano).

    
    

    PENALTY RECOMMENDATION

    
    

16. The Board of Medicine has recommended, in its Proposed Recommended Order, a reprimand, an administrative fine of $3,000 and a period of probation of one (1) year during which Dr. Orasan must submit to unannounced reviews of at least ten (10) randomly selected patient charts by a physician selected by the Board, to occur no more than quarterly. The recommended penalty falls within the disciplinary guidelines enacted in Rule 21M- 20.001(2)(m), Florida Administrative Code. The Rule's range of penalties for the offense is, however,

    so broad that this case does not present an occasion to apply directly Rule 21M- 20.001(3), concerning aggravating or mitigating circumstances which may cause the Board to deviate from the penalties recommended in the Rule. Nonetheless, those factors also are appropriate to determine what penalty, within the very broad range authorized, should be imposed.

    
    

17. There was no evidence of any restraints on Dr. Orasan's practice at the time of the offenses so Rule 21M-20.001(3)(b) is irrelevant, and no evidence of similar offenses previously committed by Dr. Orasan was presented, rendering Rule 21M- 20.001(3)(d) inapplicable. There was no evidence of a disciplinary history of Dr. Orasan over his long period of practice, which weighs in his favor under Rule 21M-20.001(3)(e). There was no evidence of pecuniary benefit to Dr. Orasan, so Rule 21M-20.001(3)(f) is irrelevant. There is no persuasive evidence that the failure to keep more detailed office records exposed the undercover officers to death, severe injury, or even slight injury. Rule 21M- 20.001(3)(a), Florida Administrative Code. The number of offenses are few.

Rule 21M-20.001(3)(c), Florida Administrative Code.

Weighing all the facts together it is RECOMMENDED:

1. That Dr. Orasan be REPRIMANDED.

   
   

2. That an ADMINISTRATIVE FINE of $500 be imposed.

   
   

3. That he be placed on PROBATION for a period of six (6) months during which a physician selected by the Board shall unobtrusively review, at unannounced visits, a sufficient number of charts given Dr. Orasan's patient load, selected by the proper use of a table of random numbers, to generate a statistically reliable sample to assess the adequacy of Dr. Orasan's record keeping.

DONE AND ORDERED is 27th day of May, 1987, in Tallahassee, Florida.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative arings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1987.

APPENDIX TO RECOMMENDED ORDER IN CASE NO.86-0570

The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties.

Rulings on Proposed Findings of Fact Submitted by Petitioner

1. Covered in Finding of Fact 1.

2. Covered in Findings of Fact 2 and 3.

3. Covered in Finding of Fact 5. The exhibits fail to demonstrate a diagnosis of hypocalcemia. The failure to order blood testing is covered in Findings of Fact 7 and 12.

4. Covered in Finding of Fact 4.

5. Covered in Finding of Fact 6.

6. Covered in Finding of Fact 6.

7. Rejected as unnecessary.

8. Rejected as unnecessary.

9. Generally covered in Finding of Fact 8.

10. Rejected for the reasons stated in Finding of Fact 12. It should also be noted that Orasan never made a diagnosis of hypocalcemia. See Finding of Fact 4.

11. Rejected as cumulative.

12. Covered in Findings of Fact 8 and 11.

13. Covered in Finding of Fact 9.

14. Covered in Finding of Fact 11.

15. Covered in Finding of Fact 9.

16. Rejected as irrelevant, there is no charge for malpractice for failing to obtain blood testing on patient Delano.

17. Rejected as cumulative.

Rulings on Proposed Findings of Fact Submitted by Respondent

Respondent filed more than proposed findings of fact. Limiting the comments to the portion entitled Findings of Fact, found on pages 1-5 of this filing it is difficult to deal with the proposals because they contain not only proposed findings of fact, but also commentary on testimony as well as information not found in the testimony or exhibits admitted at the hearing. The proposals have been carefully considered in making the findings of fact in the Recommended Order, but no ruling will be made on the proposals because, in the present form, it is not possible to do so.

COPIES FURNISHED:

Julie Gallagher, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Petru Orasan, M.D. 2005 Van Buren Street

Hollywood, Florida 33020

Dorothy Faircloth, Executive Director Board of Medicine

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

Joseph A. Sole, General Counsel Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-000570

Orders for Case No: 86-000570