STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 86-1157

)

DAISY MEREY, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Upon mutual request of the parties and by stipulation thereof, the final hearing on this case was conducted by telephonic conference call on March 20, 1987. There is no legal impediment to the foregoing procedure as long as the parties consent. See Rule 2.071(6), Florida Rules of Judicial Administration. For discussion on the subject generally, see DeFoor and Sechen, Telephone Hearings in Florida, 38 U. Miami L.Rev. 593, (July 1984).

APPEARANCES

For Petitioner: H. Scott Hecker, Esquire

517 Southwest First Avenue Fort Lauderdale, Florida 33301

For Respondent: Deborah J. Miller, Esquire

2100 Ponce de Leon Boulevard, Suite 1201 Coral Gables, Florida 33134

The arrangements for final hearing by telephonic conference call are not of first impression. However, because the testimony of witnesses is ordinarily taken in an open hearing, the arrangements for this final hearing are more specifically described hereafter. A speaker phone and court reporter were provided by the agency in Fort Lauderdale, Florida. Counsel for each party, the Respondent, and witness Lionel R. Blackman, M.D., assembled there. The duly assigned Hearing Officer, Ella Jane P. Davis, was physically present in Tallahassee, Florida. The sole exhibit, deposition of Dr. Stanley L. Weiss, D.O., witness on behalf of Petitioner, was provided the Hearing Officer in advance of the hearing. Its admission into evidence was stipulated at the hearing. Respondent and her expert, Dr. Blackman, were sworn and subject to cross examination. The parties orally indicated that no transcript would be provided, however a transcript was in fact filed with the Division of Administrative Hearings on April 9, 1987. The parties orally affirmatively waived the filing of proposed findings of fact and conclusions of law.

ISSUES

Respondent is charged in Count I of the Administrative Complaint with failure to properly examine, diagnose, and treat the patient Lynne McMurry;

failure to keep adequate written medical records regarding treatment; providing treatment to the patient which was neither necessary nor justified; and failing to properly inform the patient of Respondent's medical diagnosis and by so doing violating Section 458.331(1)(t), Florida Statutes, in that she failed 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. Upon the same factual allegations, Count II alleges violation of Section 458.331(1)(o), exercising influence on a patient or client in such a manner as to exploit the patient or client for financial gain. Upon the same factual allegations, Count III charges violation of Section 458.331(1)(1) by making deceptive, untrue, or fraudulent representations in the practice of medicine or by employing a trick or scheme in the practice of medicine when such trick or scheme fails to conform to the generally prevailing standards of treatment in the medical community. Upon the same factual allegations, Count IV charges a violation of Section 458.331(1)(n) by failing to keep written medical records justifying the course of treatment of a patient.

Upon the same factual allegations, Count IV charges a violation of Section 458.331(1)(i) by making or filing a report the Respondent knows to have been false.

FINDINGS OF FACT

1. No evidence was adduced at formal hearing to prove up the threshold issue of jurisdiction by licensure. No prehearing stipulation of the parties established paragraph 2 of the Administrative Complaint alleging that at all times material hereto Respondent was a licensed physician in the state of Florida, having been issued license number ME0037967. No requests for admission within the record establish this essential allegation as fact. No answers to interrogatories to establish this fact were read into evidence at the hearing.

   
   

2. Respondent saw Lynne McMurry on four occasions. Respondent saw this

   113 pound 39 year old female on April 17, 1984, and took a complete medical history. On April 24, 1984, Respondent's notes reflect that Respondent recorded McMurry's blood pressure and glucose level and did a urinalysis. They also reflect that vitamin B-complex was prescribed. There is no indication within the notes of whether this vitamin was administered orally, intramuscularly, or otherwise. However, it appears from the testimony that both experts assumed the B complex was administered by injection on that date. The notes reveal that on May 8, 1984, Respondent performed a lesion removal (described in testimony as the excision of a mole) and recorded test scores for urine, glucose, hematocrit, and hemoglobin. It may be inferred that the tests were done in Respondent's office on blood and urine samples provided by Ms. McMurry. According to Respondent's notes, she again saw McMurry on May 22, 1984, recorded her weight as reduced to 110 pounds, and again prescribed vitamin B-complex. Attached to these notes are copies of the test results recorded plus a breast thermography done on April 24, 1984, and one testing panoramic dated April 17, 1984. No notes were recorded by Respondent for April 17, 1984, beyond the medical history previously mentioned. Insurance claims for these treatments were made by Respondent based on diagnoses of "fibrocystic breast disease" and "hypotension."

   
   

3. Petitioner's witness, Dr. Stanley L. Weiss, an osteopathic physician, has concentrated much of his study, practice, and writing in the Respondent's field of bariatric medicine (weight control and eating disorders) and his deposition (P-1) has been accepted as the opinion of an expert witness in review of medical records and medical matters. Dr. Weiss' background includes the policing of medical insurance claim fraud through the Florida Blue Shield Review Committee. Respondent's witness, Dr. Lionel R. Blackman, medical physician and

   past Medical Director of Lakes Hospital, Lake Worth, Florida, has many years of reviewing physicians' and hospital records, both in hospital peer reviews and in offices where usually only one physician reviews his or her own notes. He testified orally on behalf of Respondent. Dr. Blackman is also accepted as similarly qualified to render expert testimony on review of medical records and on medical matters.

   
   

4. Dr. Weiss' criticism of Respondent's notes was solely related to his perception that they fail to contain sufficient information. He specifically found no malpractice in the treatment given, the records kept, or the claims made, but was concerned with the scarcity of what he felt would be adequate progress notes in the chart if another doctor had to review them. He conceded that a comprehensive history and physical examination form had been filled out on April 17, 1984, but expressed concern due to the appearance of several different handwritings on that physical examination form, as though a nurse, physician's assistant, and/or the Respondent herself had partially completed the form. He objected to lack of documentation for the necessity of multiple diagnostic procedures without additional comment within the notes covering actual physical evaluation, patient response to therapy, what therapy had been, and what the future plan of therapy would be. Reviewing the same notes of Respondent, Dr. Blackman considered them sufficient for office practice. He assumed from the notes that the patient being treated was a basically healthy patient without pathology, since no pathology was noted. Under these conditions, he further assumed that the B-complex prescription was used as a general tonic. He stated that one was required to assume Ms. Murry was generally sound because one could not assume a treatment for vitamin deficiency had been undertaken since B-complex vitamin .deficiency is exceedingly rare. He testified as one experienced in reviewing office notes that for office notes, the proper standard is that negative findings need not always be recorded. In short, Dr. Weiss found the notes less than adequate, unsatisfactory, and below common standards, and Dr. Blackman found them adequate, satisfactory, and meeting common standards for office notes.

   
   

5. Without conceding any inadequacy of her records, Respondent explained that at the time the various notes had been made, her standard procedure was to personally do the patient history and physical examination while a physician's assistant transcribed the notes from her dictation during her personal "hands- on" examination. Since the complaint was filed, she has discovered everything she orally dictated was not written down by the single assistant she employed in 1984 and since them she has hired two better-trained assistants and has instituted a personal review of each chart at the close of each day's examinations. Respondent has an excellent reputation in the local medical community of West Palm Beach and has served on a number of community service teaching and writing projects. Last year she obtained 98 continuing medical education credits. Although never specifically stated, the undersigned infers all or most of these hours impinge on improving Respondent's record keeping skills.

   
   

6. There is no suggestion from any source that the Respondent's diagnoses were in error or that the B-complex did or even could have produced an undesirable result in the patient, Lynne McMurry.

   
   

7. Nothing within this record supports the allegations of violations as charged in Counts I, II, III, or V.

   CONCLUSIONS OF LAW

   
   

8. The Board of Medical Examiners is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and 458, Florida Statutes.

   
   

9. Without positive proof of licensure, the Board of Medical Examiners and derivatively, the Division of Administrative Hearings, has no jurisdiction of the parties and subject matter of this cause. Therefore, all five counts of the Administrative Complaint must fail for lack of proof on this threshold jurisdictional issue.

   
   

10. However, in light of the seriousness of the charges, some further discussion of the evidence adduced may be appropriate. Since there is no evidence to support the allegations of Counts I, II, III, or V, those would have to be dismissed for that reason alone. Likewise, the evidence adduced as to Count IV, failure to keep adequate records, falls short of meeting the "clear and convincing" burden of proof required of Petitioner in license revocation proceedings, Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1stDCA 1981). The medical experts, coming from two different perspectives, reached two different ultimate conclusions. Weiss, who by education, training, and experience is on the lookout for fraud, required great detail of physician notes with emphasis on results and prognosis. Blackman, whose education, training, and experience emphasized treating the patient over keeping detailed records, sets a different and perhaps less exacting standard of record keeping for office practice. Respondent adequately addressed many of Weiss' concerns by explaining the differing handwriting on the records and has taken steps to prevent any repetition of the circumstances which gave rise to his concerns and the charges contained in Count IV. Therefore, Count IV should be dismissed on this basis also.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is,

RECOMMENDED that the Board of Medical Examiners enter a Final Order dismissing with prejudice all Counts against Respondent.

DONE and RECOMMENDED this 24th day of April, 1987, at Tallahassee, Florida.

ELLA JANE P. DAVIS, 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 24th day of April, 1987.

COPIES FURNISHED:

Dorothy Faircloth, Executive Director Florida Board of Medicine

130 North Monroe Street Tallahassee, Florida 32301

H. Scott Hecker, Esquire

517 Southwest First Avenue Fort Lauderdale, Florida 33301

Deborah J. Miller, Esquire 2100 Ponce de Leon Boulevard Suite 1201

Coral Gables, Florida 33134

Van Poole, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Joseph A. Sole, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-001157

Orders for Case No: 86-001157