Judges: K. N. AYERS
Agency: Department of Health
Latest Update: Sep. 24, 1986
Summary: Respondent guilty of allowing an unlicensed person to practice osteopathy.
86-2112.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, ) BOARD OF OSTEOPATHIC MEDICAL ) EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 86-2112
)
LAWRENCE E. URBAN, D. O., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on August 21, 1986, at Clearwater, Florida.
APPEARANCES
For Petitioner: Leslie Brookmeyer, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Lawrence D. Black, Esquire
151 Eighth Avenue, Southwest Largo, Florida 33540
By Administrative Complaint filed May 13, 1986, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of Lawrence E. Urban, D. O., Respondent. As grounds therefor it is alleged that Respondent aided and permitted an unlicensed person to practice osteopathy, that he delegated professional responsibilities to a person known to be unqualified to perform those duties, that he failed to practice osteopathic medicine with that level of care, skill and treatment which is recognized as acceptable under similar conditions and circumstances, and that he violated terms of his probation.
At the hearing Petitioner called four (4) witnesses, including Respondent, Respondent testified in his own behalf and two (2) exhibits were admitted into evidence. There is no dispute of the facts in this case. Proposed findings submitted by Petitioner and not included herein are deemed immaterial to the conclusions reached.
FINDINGS OF FACT
At all times relevant hereto Lawrence D. Urban was a licensed osteopathic physician in Florida having been issued license number OS 001232.
From January 1983 through at least March 17, 1984, Respondent maintained offices in Clearwater and Zephyrhills. He practiced in the Clearwater office on Monday, Wednesday and Friday of each week and in the Zephyrhills office on Tuesday, Thursday and Saturday.
Respondent employed Wendell Bloom to work in the Zephyrhills office as a business manager and assistant to Respondent. Bloom had no medically related license such as physician's assistant, nurse, technician, etc.
As an assistant to Respondent, Bloom drew blood, performed vascular analyses, mixed IV solutions, and administered IV solutions. He worked at the Zephyrhills office Monday through Friday.
Bloom had standing orders from Respondent that if a new patient came in Bloom would draw a blood sample, send it to the lab for analysis and make an appointment for the patient to see Respondent when the results of the blood analysis was received.
Respondent described his practice in Zephyrhills as holistic, involving nutrition, chelation, and cancer therapy using laetril. Chelation treatment involves the intravenous injections of solutions containing EDTA (Ethylenadiaminetetracetic acid), vitamins, including B12, B complex and C, and the minerals, calcium and magnesium.
On many occasions Bloom commenced IV chelation injections containing EDTA before Respondent arrived at the office and completed some of these after Respondent had left the office. On at least five (5) occasions Bloom injected patients with IV solutions containing EDTA without Respondent being present any time during the procedure.
Drawing blood without a doctor present in the office constitutes the practice of medicine. Injecting IV solutions in patients constitutes the practice of medicine without a doctor present.
In the Zephyrhills office Respondent referred to Bloom as Dr. Bloom in the presence of patients. No sign or disclaimer was posted in the office that Bloom had no prior medical training and was not licensed in any medically related health professional field in Florida. Respondent knew that patients might believe Bloom to be a medical doctor.
In administering an IV solution to a patient there is always a danger of an allergic reaction or an anaphylactic reaction, even if a patient has previously tolerated the treatment. Respondent acknowledged that serious side affects would result to a patient receiving an IV solution containing EDTA if the patient suffered kidney failure.
Bloom also operated the vascular analyzer machine in the office. As described by Bloom, by attaching clips from the machine to the fingers and toes the machine will tell you if there is any kind of clotting or obstruction any place within the cardiovascular system. Further, by putting transmission gel on the clip and holding it over an artery, transmissions from the clip with the return echo is transformed onto a chart which will denote the elasticity of the artery. This machine is not universally accepted in the medical profession.
By Final Order entered August 26, 1983 (Exhibit 1) the Florida Board of Osteopathic Medical Examiners found Respondent guilty of filing false
reports, fee splitting, and abetting an unlicensed person to practice osteopathic medicine. He was sentenced to a reprimand, placed on probation for six (6) months and directed to report to the Board at the end of the probationary period. If, at this time, Respondent's report on the status of his practice satisfies the Board that the financial aspects of his practice is in accordance with the law, the reprimand will be withdrawn. Terms and conditions of the probation were not delineated.
Respondent appeared before the Board at its March 17, 1984 meeting. After Respondent reported that the financial aspects of his practice were poor, but in conformity with the law, one of the Board members inquired if Respondent was working with any non-osteopathic physicians in his practice, which was one of the accusations for which he was reprimanded and placed on probation. At this point Respondent told the Board that he had a helper who was a "non- anything" who was drawing blood, doing vascular analyses of patients, giving IVs to patients undergoing chelation therapy and whatever Respondent told him to do. (Exhibit 2)
After hearing these disturbing facts the Board voted to extend the Respondent's probation while an investigation of his practice was conducted. The charges considered at this hearing were those resulting from that investigation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Respondent was issued a reprimand and placed on six (6) months probation on August 26, 1983 as a result of his informal hearing at which he admitted, inter alia, aiding and abetting an unqualified person to practice osteopathy. Nevertheless, Respondent continued to use Bloom to perform tasks that constitute the practice of medicine. Since these tasks were routinely performed while Bloom was not under the direct supervision of Respondent, this constitutes an unauthorized practice of medicine by Bloom. Thereby Respondent violated the terms of his probation.
At the hearing Respondent contended that he admitted during the March 17, 1984 meeting of the Board of Osteopathic Physicians all of the allegations forming the Administrative Complaint filed in this case, and the Board punished him for these offenses by extending his probationary period. It was this allegation that led the Hearing Officer to request the record of proceedings before the Board be submitted as a late file Exhibit No. 2.
The transcript of the March 17, 1984 meeting of the Board which resulted in the order (Exhibit 1) in which the probation of Respondent was continued "until such time as the investigation report by the Department is made available to the Board and Dr. Urban reappears and the Board is satisfied that Dr. Urban has complied with the terms and conditions of his probation and is capable of safely engaging in the practice of osteopathic medicine without further probationary supervision," clearly shows the Board intended to extend Respondent's probationary period.
The probationary period of six (6) months to which Respondent was sentenced commenced August 26, 1983 and, perforce, ended February 26, 1984. Therefore, on March 17, 1984 this probationary period had ended and could not be extended or renewed by the Board without additional charges being preferred.
In this regard it is significant that Section 459.015(2), Florida Statutes provides:
When the Board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties;
* * *
(f) Placement of the osteopathic physician on probation for a period of time and subject to such conditions as the Board may specify, including, but not limited to, requiring the osteopathic physician to submit to treatment, attend continuing education courses, submit to reexamination, or to work under the super- vision of another osteopathic physician.
Thus probation is a penalty which the Board is authorized to impose when charges are preferred against a licensee and the licensee has been afforded the right to a Section 120.57 hearing. That condition did not here exist as no charges had been preferred against Respondent. Accordingly, the Board's sentencing of Respondent to "continued" probation from the March 17, 1984 Board meeting was a nullity.
Subsection 459.115(1)(Florida Statutes) in pertinent part lists the following grounds for disciplinary action:
(g) Aiding, assisting, procuring, or advising any unlicensed person to practice osteopathic medicine contrary to this chapter or to a
rule of the Department or the Board.
Delegating professional responsibilities to a person when the licensee delegating such responsibility knows or has reason to know that such person is not qualified by training, experience or licensure to perform them.
(t) Gross or repeated malpractice or the failure to practice osteopathic medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar osteopathic physician as being acceptable under similar conditions and circumstances. The Board shall give great weight to the provisions of s. 768.45 when enforcing this paragraph. As used in this paragraph, "repeated malpractice" includes, but is not limited to, three or more claims for medical malpractice within the previous
5-year period resulting in indemnities being paid in excess of $10,000 each to the claimant in a judgement or settlement and which incidents involved negligent conduct by the osteopathic physician. As used in this paragraph, "gross malpractice" or "the failure to practice 2 osteopathic medicine with that level of care, skill, and treatment
which is recognized by a reasonably prudent similar osteopathic physician as being acceptable under similar conditions and circumstances" shall not be construed so as to require more than one instance, event, or act.
Violating any provision of this chapter, a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the board or department.
All of the above charges stem from one act of Respondent, i.e. authorizing and permitting Bloom to practice osteopathic medicine without a license. Although Respondent can be found guilty of all alleged violations he can be punished only for the one act committed.
License revocation proceedings are penal in nature, State ex. rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Florida 1973) and the prosecuting agency is required to prove its charges by clear and convincing evidence.
Here the evidence was unrebutted and, therefore, clear and convincing that, while employed by Respondent Wendell Bloom, with the knowledge and consent of Respondent, practiced osteopathic medicine in diagnosing patients' conditions, drawing blood when no physician was present on the premises and giving IV solutions containing dangerous substances to chelation therapy patients when no physician was present. Respondent thereby violated Section 459.115(1)(g) and (w) (Florida Statutes) above quoted.
By allowing Bloom to so practice during the period between August 26, 1983 and February 26, 1984, Respondent violated the probation imposed on him by the Board and thereby violated the Board's order. This constitutes a violation of Section 459.11(1)(x).
Whether, by allowing Bloom to perform the acts complained of, Respondent was guilty of gross or repeated malpractice or failure to practice medicine with the level of care required is another question. Most, if not all, of the acts complained of were acts Bloom could have legally performed while Respondent was in attendance. In a broad sense, by allowing Bloom to perform the acts complained of, Respondent is guilty of malpractice. In view of the fact that Respondent can be punished for only one act, a finding on this charge is not necessary and no weight is given to this charge in assessing an appropriate penalty.
From the foregoing, it is concluded that the Petitioner has proved by clear and convincing evidence that Lawrence E. Urban, D. O., violated the provisions of Section 459.115(1)(g), (w), and (x) as alleged. It is
RECOMMENDED that the license of Lawrence E. Urban to practice osteopathic medicine be suspended for a period of one (1) year and that, upon completion of the period of suspension, he be placed on probation for a period of three (3) years upon such terms and conditions as the Board of Osteopathic Medical Examiners may deem appropriate.
ENTERED this 24th day of September, 1986 in Tallahassee, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1986.
COPIES FURNISHED:
Leslie Brookmeyer, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Lawrence D. Black, Esquire
151 Eighth Avenue, Southwest Largo, Florida 33540
Fred Roche, Secretary 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
Mr. Rod Presnell, Executive Director Board of Osteopathic Medical Examiners Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
================================================================= BEFORE THE BOARD OF OSTEOPATHIC MEDICAL EXAMINERS
DEPARTMENT OF PROFESSIONAL REGULATION
Petitioner,
vs. DPR CASE NO. 0049322
DOAH CASE NO. 86-2112
LAWRENCE URBAN, D.O.,
Respondent
/
FINAL ORDER
Respondent, Lawrence Urban, is a licensed osteopathic physician in the state of Florida having been issued license Number OS 001232. Petitioner filed and Administrative Complaint seeking suspension, revocation, or other disciplinary action against the licensee.
Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Board pursuant to Section 120.57(1), F.S.; it is attached and made a part of this Order.
The Board of Osteopathic Medical Examiners met on December 13, 1986 in Tampa, Florida, to take final agency action. The Petitioner was represented by Leslie Brookmeyer, Esquire; the Respondent was present but not represented. The Board has reviewed the entire record in this case.
The Board adopts the Findings of Fact, Conclusions of Law, and Recommendation of the Recommended Order. Pursuant to the recommended penalty, the Board sets the following terms or conditions for Respondent's three year probation period: Respondent shall appear quarterly before the Board during his probation and shall have a. Board appointed monitoring physician who shall go to Respondent's office monthly and review a minimum of twenty five of Respondent's patient's records; the monitoring physician shall submit quarterly reports to the Board concerning Respondent's practice; Respondent shall complete forty hours of continuing education, Category I, during the four years of suspension and probation inclusive of the continuing education hours required for license renewal; and in addition, as a term of probation, Respondent shall pay an administrative fine to the Board of $1,000.000 within the period of probation. This fine is imposed to reimburse in part the Board for the costs incurred by the Board for the volume of research involved in Respondent's case. This order takes effect upon filing.
This order may be appealed by filing Notices of Appeal and a filing fee is set forth in Section 120.68(2), Florida Statutes and Florida Rule of Appellate Procedure 9.110(b) and (c) within thirty days of filing.
DONE AND ORDERED this 19th day of January, 1987.
BOARD OF OSTEOPATHIC MEDICAL EXAMINER
LUIS BARROSO, D.O. ACTING CHAIRMAN
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been sent by certified mail to Lawrence Urban, D.O., 1535 Carrol street, Clearwater, Florida 333515 and by U.S. Mail to Lawrence D. Black, Esquire, 152 Eighth Avenue, Southwest, Largo, Florida 33540 and by U.S. Mail to K. N. Ayers, Hearing officer, Division of Administrative Hearings, Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida 32301 and to Leslie Brookmeyer, Esquire, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32301, this 26th day of January, 1987.
Docket for Case No: 86-002112
Orders for Case No: 86-002112
