STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )
)
Petitioner, )
)
vs. ) CASE NO. 86-3496
)
MOISES GRIMBERG, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
This matter was heard by William R. Dorsey, Jr., the Hearing Officer assigned by the Division of Administrative Hearings, on March 24, 1988, in Miami, Florida. A transcript of the proceeding has been filed and the parties submitted proposed findings of fact and conclusions of law. Rulings on proposed findings of fact are made in the appendix to this recommended order.
APPEARANCES
For Petitioner: Gregory A. Victor, Esquire
ADORNO, ALLEN, YOSS & GOODKIND, P.A.
Bayview Executive Plaza, Suite 400 3225 Aviation Avenue
Miami, Florida 33133
For Respondent: Paul W. Lambert, Esquire
TAYLOR, BRION, BUCKER AND GREEN
225 South Adams Street Tallahassee, Florida 32301
ISSUE
The issues are whether Dr. Grimberg failed to keep written medical records justifying the course of treatment for three patients and whether his treatment of those patients was so deficient as to constitute gross or repeated malpractice, or failure to practice medicine with the level of care, skill, and treatment recognized by reasonably prudent similar physicians as acceptable under similar conditions and circumstances.
PROCEDURAL BACKGROUND
The Administrative Complaint was filed in this matter on August 20, 1986. It alleged violations of Section 458.331(1)(n) and (t), Florida Statutes. At the hearing, the following witnesses testified for the Board: Dr. Reynold Stein and Dr. Jeffrey Ehrlich. The resumes of Drs. Stein and Ehrlich were received in evidence, as well as the Victoria Hospital records for patients E. S., M. C., and F. W., and Dr. Grimberg's office records for each of these patients. Four
witnesses testified on behalf of Dr. Grimberg: Dr. Jeffrey Rosen, Dr. Luis Augsten, Dr. Eric Smith, and Dr. Manuel Camacho. Three exhibits were received on behalf of Dr. Grimberg.
FINDINGS OF FACT
Dr. Grimberg was, at all times material to the Administrative Complaint, licensed to practice medicine in the State of Florida under license ME0027436.
Dr. Grimberg maintained offices at 5349 N.E. 2nd Avenue, Miami, Florida.
Dr. Grimberg admitted E. S. to Victoria Hospital in Dade County, Florida, on June 18, 1985. He was the attending and admitting physician for that patient. E. S. remained in Victoria Hospital until his discharge on June 26, 1985. Before admission to the hospital, E. S. had obtained medical care at Dr. Grimberg's office in March, April and June 1985.
Dr. Grimberg admitted patient M. C. to Victoria Hospital on June 19, 1985. He was the admitting and attending physician for M. C. until she was discharged from the hospital on June 24, 1985. Dr. Grimberg had treated M. C. at his office on May 14, 1985 prior to her hospitalization.
Dr. Grimberg admitted F. W. to Victoria Hospital on June 22, 1985. He was the admitting and attending physician for F. W. until F. W. was discharged on July 23, 1985. Dr. Grimberg had not seen F. W. prior to his admission to the hospital.
Standards of practice
Office Notes
The standard in the medical community for office notes requires that office notes be legible, and that for each patient visit the notes reflect the patient's subjective complaints, the physician's objective findings, the physician's assessment, and his plan of treatment.
Hospital Records
It is also a standard of medical practice that notes made by a physician on a hospital chart be legible. Those notes should document the progress of the patient's course of treatment in the hospital, and any changes in the patient's condition on a daily basis. The chart should justify the need for hospitalization and orders for medication or treatment. Each examination of the patient in the hospital should be recorded with an entry for the date of the examination, and record the patient's vital signs, the patient's symptoms, the results of the doctor's physical examination, the diagnosis, and the treatment plan and strategy.
Preparation of the admitting note and the admitting physical examination and history is the responsible of the admitting physician. Because Dr. Grimberg was the admitting and attending physician for E. S., M. C., and F. W., he was responsible for the preparation and accuracy of the Victoria Hospital admitting note, physical examination, and history for these patients. Even if a house physician, or a physician other than Dr. Grimberg, performed the initial physical examination and took the patient's history, it would be Dr. Grimberg's
responsibility to review the work of that other physician. If that work were deficient or inadequate it would be his duty to perform any supplementary examination or inquiry about the history and to supplement the admitting note and record of the admitting physical examination and history.
Standard practice in the medical community for admitting notes and records of a patient's admitting physical examination and history is that they document the patient's subjective complaints, the physician's objective findings, the physician's assessment of the patient's condition, the physician's treatment plan, contain an explanation of why the patient has been admitted to the hospital, a synopsis of the patient's prior medical history, a history of the illness for which the patient is hospitalized, and a working diagnosis.
Standard practice in the medical community requires the preparation of a discharge summary by the attending physician. A discharge summary should contain an appropriate discharge diagnosis and summarize the patient's experience during hospitalization.
Dr. Grimberg was responsible for rendering an admitting diagnosis and discharge diagnosis for E. S., M. C., and F. W. for their stays at Victoria Hospital.
Visitation of hospitalized patients
A hospitalized patient should be seen on a daily basis either by the attending physician, by an associate of the attending physician, or by some other physician within the same speciality who has been designated by the attending physician to visit the patient. During the daily visit, the physician must prepare a progress note. Each daily progress note must contain what the physician observed during the examination as well as any findings, opinions, or modification of the patient's treatment.
As the admitting physician, Dr. Grimberg had the responsibility to be aware of the substance of the medical treatment rendered to E. S. and M. C. in his office prior to their hospitalization. This would be true even if he were not the physician from his group practice who had rendered the prior medical care to those patients.
Dr. Grimberg's treatment of E. S.
E. S. was seen by Dr. Grimberg on June 14, 1985. The office notes are confusing because the entries are not in chronological order. E. S. complained on a tumor in the left inguinal area. It was diagnosed as lues (syphilis). Dr. Grimberg prescribed penicillin and 250 mg. doses of tetracycline. E. S. returned on June 15, 1985, and presented with an abscess in the left groin. Lues was the working diagnosis. E. S. was continued on penicillin and the tetracycline dosage was doubled. E. S. returned on June 18, 1985, with swollen ganglia of the left inguinal region. He then was diagnosed by Dr. Grimberg as suffering from an abscess of the Cloquet ganglia. The tetracycline dosage was
reduced to 250 mg., without any indication of why this was done. Office records for these visits do not reflect fever, anorexia, weight loss or generalized weakness.
Dr. Grimberg admitted E. S. to Victoria Hospital on June 18, 1985. The admission records show that E. S. had been suffering from generalized weakness and fever for four days, which would have encompassed the period of time E. S. had been seen at Dr. Grimberg's office. Dr. Grimberg was the
admitting and attending physician for E. S. and his admitting diagnosis was "generalized weakness." Under the circumstances, this was an inappropriate reason to admit E. S. to the hospital.
The admitting diagnosis of generalized weakness is not correct. The appropriate diagnosis would have been either inguinal cellulitis, inguinal abscess, or inguinal lymphadenopathy. Through an examination of E. S., or through a review of Dr. Grimberg's office records for E. S., Dr. Grimberg should have known the correct admitting diagnosis. The correct diagnosis for E. S.'s condition was first made by a consulting surgeon, Dr. Elizondo, who found E. S. suffered from cellulitis with adenopathies.
The admission note, the admitting physical examination, and the admitting history for E. S. which were signed by Dr. Grimberg were inadequate. He did not supplement the admitting note, admitting physical examination, or admitting history.
The admitting note is illegible and substandard. It does not document pertinent medical findings or medical history.
The admitting medical history is inadequate. It indicates that E. S. was not undergoing current therapy. Actually, he was on antibiotics prescribed by Dr. Grimberg according to the information reflected in Dr. Grimberg's office notes. The hospital records do not reflect the working diagnosis of lues Dr. Grimberg had made for E. S. during the course Dr. Grimberg's recent office treatment of E. S. This working diagnosis should have been contained in the admission record. The admitting history is similarly incomplete or inaccurate because it does not reflect an awareness of Dr. Grimberg's working office diagnosis of lues. The admitting history was also clearly incorrect by indicating that E. S. had no infections and no venereal disease.
The medication which E. S. was taking at the time of his admission to the hospital might have had an adverse interaction with other medications prescribed by any physician at the hospital who consulted the hospital chart for the current medication. That medication also could have interfered with the culturing of possible infections which had been ordered for E. S. Dr. Grimberg's failure to note the current tetracycline therapy in the records at the time of admission was a deviation from the appropriate standard of medical care.
If E. S. had complained of anorexia and weight loss, as shown on the admitting history, the hospital records reflect no work-up by Dr. Grimberg (or by any doctor at Grimberg's direction) for these complaints.
Dr. Grimberg requested a surgical consultation for E. S. to determine whether E. S. had a hernia. This consultation indicated a lack of competency to render a proper diagnosis. Dr. Grimberg should have known, without further consultation, that E. S. did not have a hernia. Requesting an unnecessary consultation constitutes a failure to practice with the level of care, skill and treatment recognized by reasonably prudent similar physicians in the community.
The hospital records for E. S. prepared by Dr. Grimberg failed to indicate whether or not inguinal abscess was draining. This omission is a deviation from the level of care, skill and treatment recognized by reasonably prudent similar physicians in the community.
The discharge diagnosis Dr. Grimberg made for E. S. was generalized weakness. This is an incorrect discharge diagnosis. The diagnosis should have been cellulitis with lymphadenopathies. The discharge diagnosis rendered by Dr. Grimberg bore no relationship to the course of treatment at the hospital or the progress of E. S. This incorrect discharge diagnosis constitutes a deviation from the practice of medicine with the level of care, skill or treatment recognized by reasonably prudent similar physicians in the community.
Dr. Grimberg's discharge summary for E. S. is illegible. It is also inadequate because it fails to include a history of the illness, physical examination prior to discharge, a review of the hospital course of treatment, a discussion of tests or medication ordered or any instructions given to E. S. upon discharge.
Treatment of M. C.
M. C. was admitted to Victoria Hospital by Dr. Grimberg for a prior history of hypertension. Three days prior to admission she had numbness and weakness of her left arm, left leg and left side of the body with slurred speech. The admission diagnosis for M. C. was cerebral vascular accident, which was appropriate.
The admission note for M. C., which was the responsibility of Dr. Grimberg is inadequate, inaccurate, and fails to satisfy the criteria set out in paragraph 9 above. It contains no medical history. On the portion of the hospital's history form for indicating general health, Dr. Grimberg has circled all possibilities: good, fair, and poor. The records contain no specific plan for treatment and are, for the most part, illegible. These inadequate notes constitute a deviation from the practice of medication with the level of care, skill and treatment recognized by reasonably prudent similar physicians in the community.
M. C.'s records contain no progress note for June 21, 1985, by Dr. Grimberg, or any associate of Dr. Grimberg or any physician designated by Dr. Grimberg to treat or visit M. S. Notwithstanding any visits by nurses or consulting specialists, the failure of an admitting/attending physician to visit a patient, or arrange for the patient to be visited by a member of the admitting physician's group practice, or by some other physician, is a deviation from acceptable standards of medical care recognized in the community.
Dr. Grimberg's discharge summary for M. S. is illegible. It is also inadequate in that fails to contain the requisite information for discharge summaries as set forth in paragraph 25 above. This also constitutes a deviation from the accepted standards of medical care recognized in the community.
Treatment of F. W.
F. W. was admitted to Victoria Hospital on June 22, 1985, following a right foot amputation. F. W. has a history of diabetes. According to the nurse's notes, upon admission, F. W.'s symptoms included fever, vomiting, chills for two days, and a quarter-sized ulcer on the left great toe with necrotic tissue which was draining and foul smelling. During the course of F. W.'s hospitalization the great toe of the left foot was amputated.
Dr. Grimberg's admitting diagnosis for F. W. was "fever of unknown origin." The records for F. W. do not justify such an admitting diagnosis. That diagnosis requires a documented long-standing fever in excess of 102
degrees with an unknown cause. F. W. did not have a documented fever in excess of 102 degrees for the requisite period of time. The cause of the fever was obvious and Dr. Grimberg should have known it. Dr. Grimberg had enough information available to have made a proper admitting diagnosis and his failure to account for the symptoms of F. W. when rendering an admitting diagnosis is a deviation from the practice of medicine with the level of skill recognized as appropriate in the community. Given the obvious infection which F. W. had at the time of admission, a proper admitting diagnosis would have been infection, infected ulcer, cellulitis, gangrene, diabetic gangrene or a similar diagnosis, but surely not fever of unknown origin.
According to the hospital records, Dr. Grimberg's initial treatment of
F. W. was done by a telephone order. Prior to calling in this telephone order, Dr. Grimberg had not seen F. W. in his office, and did not examine F. W. at the hospital. No records reflect that Dr. Grimberg spoke to any nurses or any physician who examined F. W. prior to rendering Dr. Grimberg's telephone order. These orders were made at 9:55 p.m. on June 22, 1985. To provide treatment orders for a patient the physician has never examined is a deviation from the level of medical care, skill and treatment recognized by reasonably prudent similar physicians in the community. Thus the telephone orders are inappropriate whether or not the orders given constituted the correct treatment for F. W. Dr. Grimberg should have personally examined F. W. at the hospital or had an associate do so. A telephone order concerning F. W.'s treatment would have been appropriate if Dr. Grimberg had been personally familiar with F. W.'s condition, but he was not.
After the telephone order, an admitting physical examination and history was performed for F. W. These were not performed by Dr. Grimberg. Dr. Grimberg had the obligation to review the physical examination and history, to correct or supplement it and to countersign it as an indication of his agreement with its correctness. Dr. Grimberg failed to supplement, correct, or countersign the physical examination or the admitting history. The admitting history and physical provided for F. W. were inadequate in that they lacked adequate descriptions of F. W.'s left lower extremity, which was the infected portion of his body, failed to adequately describe obvious gangrene, and makes no mentions of prior antibiotic therapy, or the nature of the patient's current mode of diabetic control. The admission history and physical examination is the responsibility of Dr. Grimberg. Failing to correct or supplement it is a deviation from the standards of medical care recognized as appropriate in the community.
There are no progress notes for F. W. for June 28, 29, July 9, July 10, July 15, July 16, July 18, July 20, or July 22. The lack of the progress notes indicates that neither Dr. Grimberg nor any health care provider acting under Dr. Grimberg's direction visited or examined F. W. on these dates. The failure to visit a patient, or arrange for the visitation of the patient each day the patient is in the hospital constitutes the failure to practice medicine with that level of care, skill and treatment recognized as appropriate by reasonably prudent physicians in the community.
Dr. Grimberg's discharge diagnosis for F. W. was diabetes with a secondary diagnosis of diabetic gangrene in the left foot. This is incorrect. The primary discharge diagnosis should have been diabetic gangrene in the left foot with a secondary diagnosis of diabetes.
Dr. Grimberg failed to prepare a discharge summary for F. W. as he was obligated to do. This is a deviation from the accepted level of medical care and record keeping recognized as appropriate in the medical community.
Facts pertaining to Dr. Grimberg's treatment of all these patients generally
Dr. Grimberg failed to comply with minimal standards of record keeping with respect to E. S., M. C., and F. W. in connection with his office and hospital records for them. The records are generally illegible, making them practically worthless. The records he kept failed to justify the course of treatment for the patients. The records as a whole concerning these patients may justify the ultimate course of treatment but this is only due to record keeping of other physicians or nurses.
Dr. Grimberg failed to fulfill his obligation to justify his course of treatment from his own notations, for he was the admitting and attending physician. Even the expert witnesses who testified at the final hearing of behalf of Dr. Grimberg agreed that his treatment and care of E. S., M. C., and
F. W. was such as to constitute a failure to practice medicine with the level of care, skill and treatment recognized by reasonably similar prudent physicians as acceptable under similar circumstances and conditions. They agreed that the records kept by Dr. Grimberg failed to justify the course of treatment for the patients.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes (1987).
The Board of Medicine is statutory authorized to take disciplinary action against a physician guilty of the following acts specified in Section 458.331(1)(n) and (t) Florida Statutes (1983).
(n) Failing to keep medical records justifying the course of treatment of the patient, including, but not limited to, patient history, examination results, and test results.
(t) Gross or repeated malpractice or the failure 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.
Dr. Grimberg has failed to keep adequate medical records justifying the course of treatment of his patients E. S., M. C., and F. W. The allegations of Count I of the Administrative Complaint have been sustained. The argument made by Dr. Grimberg that the statute only requires that records contain patient histories, examination results and test results is unsustainable, given the language of the statute itself. Those entries are examples of what must be contained in records, they are not an exclusive listing of what records must contain.
Dr. Grimberg's treatment of E. S., M. C., and F. W. failed to conform to the level of care, skill and treatment recognized by reasonably prudent
similar physicians as acceptable under the circumstances and violated Section 485.331(1)(t), Florida Statutes (1983). Patients need not suffer a bad result or injury to support the imposition of discipline for malpractice.
Dr. Grimberg has attacked the disciplinary guidelines promulgated by the Board of Medicine in Rule 21M-20.001, Florida Administrative Code. He claims that they fail to set "meaningful disciplinary guidelines establishing maximum and minimal penalties for specific violations of Section 458.331(1), Florida Statutes." The requirement for a "meaningful range of designated penalties based upon the severity and repetition of specific offenses" was enacted after the acts at issue here, in Chapter 86-90, Section 2, Laws of Florida. The statute does not apply to Dr. Grimberg's case. Nonetheless, it is true that the penalty ranges established in the Board's rule are so broad as to do little more than restate the statutory penalties, and do little to advance the inquiry into what an appropriate penalty is for the offenses listed.
Neither party presented any evidence on aggravating or mitigating factors to be considered in assessing a penalty. See Rule 21M-20.001, Florida Administrative Code. With respect to the aggravating factors listed in the rule, there is no evidence that any of the three patients actually suffered a bad result from Dr. Grimberg's treatment, and there is no evidence of any legal restraints on Dr. Grimberg's practice of medicine at the time the events occurred. There is no evidence that Dr. Grimberg has previously been charged with misconduct in Florida nor any evidence of prior discipline in any other jurisdiction. There is no evidence of how long Dr. Grimberg has been in practice, though it is obvious he has been in practice for a number of years. There is no evidence of any monetary benefit inuring to Dr. Grimberg as the result of the actions which form the basis of the disciplinary complaint. While Dr. Grimberg's treatment of the patients was negligent, the evidence does not indicate that he is incompetent to practice medicine. The Board's suggestion that he should be suspended from the practice of medicine for two years unless during the ensuing two years he completes a post graduate residency program and takes and passes the FLEX examination is too severe a penalty based for the facts proven here. In order to emphasize the need for better office and hospital recording keeping, greater attention to detail in preparing admitting and discharges diagnosis, Dr. Grimberg should be required to complete continuing education courses in record keeping. The negligence in treating his patients by calling unnecessary consultations and failing to daily visit his hospitalized patients justifies a suspension of six months.
It is recommended that a final order be entered by the Board of Medicine finding Dr. Grimberg guilty of failure to keep appropriate records, in violation of Section 458.331(n), Florida Statutes (1983), and of failure to practice medicine with that level of care, skill and treatment recognized by reasonably prudent similar physicians as acceptable under similar conditions and circumstances in violation of Section 458.331(1)(t), Florida Statutes (1983) with respect to patients E. S., M. C., and F. W.
The appropriate penalty is:
A reprimand, 2. A $2,000 fine;
Suspension for six months during which Dr. Grimberg is required to successfully
complete Category I continuing education hours with an emphasis in record keeping; followed by
Probation of one year.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of September, 1988.
WILLIAM R. DORSEY, JR.
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 30th day of September, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3496
The following are my rulings on the proposed findings of fact submitted by the parties pursuant to Section 120.59(2), Florida Statutes (1987).
Rulings on the proposals made by the Board of Medicine
Covered in finding of fact 1.
Covered in finding of fact 2.
Rejected as unnecessary.
Rejected as unnecessary.
Rejected as unnecessary.
Rejected as unnecessary.
Rejected as unnecessary.
Covered in finding of fact 3.
Covered in finding of fact 4.
Covered in finding of fact 5.
Covered in finding of fact 3.
Covered in finding of fact 4.
Covered in finding of fact 5.
Covered in finding of fact 6.
Covered in finding of fact 7.
Covered in finding of fact 8.
Covered in findings of fact 9 and 11.
Covered in finding of fact 10.
Covered in finding of fact 12.
Covered in findings of fact 3, 4 and 5.
Covered in finding of fact
Covered in finding of fact 14.
Covered in findings of fact 15 and 16.
Covered in finding of fact 16.
Covered in findings of fact 17, 18, and 19.
Covered in finding of fact 20.
Covered in finding of fact 21.
Covered in finding of fact 22.
Covered in finding of fact 23.
Covered in finding of fact 24.
Covered in finding of fact 37.
Covered in finding of fact 4.
Covered in finding of fact 26.
Covered in finding of fact 27.
Rejected because the Hearing Officer is not persuaded that the neurological consultation for M. C. was unnecessary.
Rejected because while it is somewhat unlikely that on June 19, 1985, M. C. had "good strength of both upper extremities" that statement may have the result of direct observation and, on that day, may have been correct. The Hearing Officer is not persuaded otherwise.
Covered in finding of fact 28.
Generally covered in finding of fact 37. See also finding of fact 29.
The Hearing Officer is not persuaded that the failure list the secondary diagnosis falls below the standard of care in the medical community.
Covered in finding of fact 5.
Covered in finding of fact 30.
Covered in finding of fact 31.
Covered in finding of fact 32.
Covered in finding of fact 33.
Covered in finding of fact 34.
Rejected as implicit in the findings of fact made with respect to F.W., especially finding 34.
Rejected because the Hearing Officer is not persuaded that there was malpractice associated with the insulin dosage.
Covered in finding of fact 35.
Rejected as subordinate to finding of fact 36.
To the extent appropriate, covered in finding of fact 37. The Hearing Officer does not find that Dr. Grimberg "did not know what he was doing as a physician."
Rejected as subordinate to other findings made with respect to each of the patients.
Rejected as repetitious of findings 28 and 34.
Rejected as repetitious of findings previously made with re- spect to Dr. Grimberg's care. For example, see finding 22.
Rejected as repetitious of the other findings with respect to record keeping.
Rejected as repetitious of other findings of malpractice.
Rejected as repetitious.
Covered in finding of fact 38.
Rulings of proposed findings of fact of Dr. Grimberg
Rejected as unnecessary.
Rejected because proof of injury is not necessary to make out a case of malpractice. Deviation from the normal standard of care will not always result in injury to a patient.
Rejected because the matter at issue is Dr. Grimberg's record keeping, not that of other physicians. Dr. Grimberg was the admitting and attending physician for the patients at issue.
Covered in findings of fact 3, 4 and 5.
Rejected as unnecessary.
Rejected as unnecessary.
Rejected as unnecessary.
Rejected as unnecessary.
Rejected as unnecessary. A physician may fail to keep appropriate records even in the absence of detailed rules from the Board of Medicine on appropriate record keeping. The prevailing standards in the community apply.
Rejected as unnecessary.
Rejected as unnecessary.
Generally accepted. The Hearing Officer has made no finding that Dr. Grimberg does not "know what he is doing as a physician."
Rejected as unnecessary.
Rejected for the reasons stated in findings 12 and 13 which are derived from testimony concerning the standards in the medical community.
Rejected because the testimony of Drs. Augsten and Camacho appear to have little to do with the issues in the case. Whether they regard Dr. Grimberg as competent generally has no bearing on whether he committed malpractice in the three cases at issue. Those doctors had no contact with patient E. S., M. C., or F. W.
16-19. See ruling on proposed finding of fact 15.
Rejected as a conclusion of law.
Rejected because the issue presented here is one of record keeping, not whether E. S. was properly hospitalized.
Rejected because it does not appear from the record that the reason Dr. Elizondo was consulted was for an incision in drainage but to determine whether E. S. had a hernia, which he clearly did not have.
Whether "generalized weakness" can ever an be an acceptable admission diagnosis is not the issue but whether it was appropriate for E. 5 It was not.
Rejected because the issue is not whether the patient was appropriately treated. The Board of Medicine does not contend otherwise.
Rejected because the course of treatment for E. S. was not justified by the records kept by Dr. Grimberg, his attending physician.
Rejected because the question is not whether Dr. Grimberg's management was "adequate to get the job done" but whether it met prevailing standards in the medical community, which is significantly higher standard.
Rejected for the reasons stated in findings of fact 14-16.
Rejected as a repetitious of pleading, not a finding of fact.
Accepted insofar as the Hearing Officer has declined to find that the neurological consultation called by Dr. Grimberg was inappropriate.
Rejected for the reasons stated in findings of fact 26 and 27.
Rejected as unnecessary.
Rejected as a statement of pleadings.
Rejected for the reasons stated in findings of fact 30-36.
COPIES FURNISHED:
Gregory A. Victor, Esquire Bayview Executive Plaza Suite 400
3225 Aviation Avenue
Miami, Florida 33133
Paul W. Lambert, Esquire
225 South Adams Street Tallahassee, Florida 32301
Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medicine
130 North Monroe Street Tallahassee, Florida 32399-0750
Bruce D. Lamb, Esquire General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
=================================================================
AGENCY FINAL ORDER
=================================================================
DEPARTMENT OF PROFESSIONAL REGULATION BEFORE THE BOARD OF MEDICINE
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs. DPR CASE NOS. 63021, 63028 DOAH CASE NO. 86-3496
MOISES GRIMBERG, M.D., LICENSE NO. ME 0027436
Respondent.
/
FINAL ORDER
This cause cane before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)9., Florida Statutes, on December 3, 1988, in Miami, Florida, for the purpose of considering the Hearing Officer's Recommended Order, Respondent's Exceptions, and Petitioner's Response to Respondent's Exceptions to Recommended Order, Respondent's Motion To Strike, and Petitioner's Response to Respondent's
Motion To Strike (copies of which are attached hereto as Exhibits A, B, C, D, and E respectively) in the above- styled cause, Petitioner, Department of Professional Regulation, was represented by Stephanie A. Daniel, Attorney at Law. Respondent was not present, but was represented by Paul Watson Lambert, Attorney at Law.
Upon review of the Recommended Order, the argument and pleadings 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 and incorporated herein.
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 set forth in the Recommended Order are approved and adopted and incorporated herein.
There is competent substantial evidence to support the conclusions of
law.
RULINGS ON EXCEPTIONS
Respondent's Motion To Strike Petitioner's Response to Respondent's
Exceptions to Recommended Order is denied. The fact that the Model Rules require the Board to accept and consider timely exceptions to the findings of fact in a Recommended Order does not mean that all other pleadings and motions are unauthorized. See Petitioner's Response to Respondent's Motion To Strike. (Exhibit E)
Respondent's Exception to Paragraphs 6-13 of the findings of fact in the Recommended Order is rejected; the findings of fact at issue are supported by competent substantial evidence in the record.
Respondent's Exception to Paragraphs 14-25 of the findings of fact in the Recommended Order is rejected; the findings of fact at issue are supported by competent substantial evidence in the record.
Respondent's Exception to Paragraphs 26-29 of the findings of fact in the Recommended Order is rejected; the findings of fact at issue are supported by competent substantial evidence in the record.
Respondent's Exception to Paragraphs 30-36 of the findings of fact in the Recommended Order is rejected; the findings of fact at issue are supported by competent substantial evidence in the record. The standard which Respondent was required to meet was the standard set by the community, not the standards set by Victoria Hospital.
Respondent's Exception to Paragraphs 37-38 of the findings of fact in the Recommended Order is rejected; the findings of fact at issue are supported by competent substantial evidence in the record.
Respondent's Exception to Paragraphs 3-4 of the Conclusions of Law in the Recommended Order is rejected; the Board agrees with and adopts the Hearing Officer's analysis and conclusion. See Department of Professional Regulation v. Rizzo, 9 F.A.L.R. 2206; Rizzo v. Department of Professional Regulation, 519 So.2d 1019 (Fla. 4th DCA 1988) (Anstead, J., concurring).
Respondent's Exception to Paragraphs 5-6 of the Conclusions of Law in the Recommended Order is rejected; the Board agrees with and adopts the Hearing Officer's analysis and conclusion.
Respondent's Exception to the penalty recommended by the Hearing Officer is rejected. With regard to the list of cases cited by Respondent, the Board notes that every case is different and the penalty is determined by the unique facts and circumstance of the case.
PENALTY
Upon a complete review of the record in this case, the Board determines that the penalty recommended by the Hearing Officer be REJECTED and that a more severe penalty be imposed. The reasons for finding the Hearing Officer's penalty is insufficient include the Board's view that a review of the entire record shows a complete lack of evidence that Respondent knows how to practice medicine. A review of the medical records reveals a complete void of medical knowledge and skills. If Respondent is to return to the independent practice of medicine, he needs to be retrained. Although the Hearing Officer perceived Respondent's violations of the Medical Practice Act, he failed to perceive the seriousness of Respondent's action. The Board members, because of their special expertise in medicine, recognize the extent of Respondent's failings. Every page of the factual record in this cause (excluding arguments of counsel) support this increase in penalty. Petitioner's Response to Respondent's Motion to Strike at pages 19-24 is incorporated herein and sets forth with specificity citations to portions of the record which justify the increase in penalty.
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 $4000 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 not less than one year.
Prior to termination of the suspension, Respondent must successfully complete the SPEX Examination.
Upon reinstatement from suspension, Respondent's license to practice medicine in the State of Florida shall be placed on PROBATION for a period of 5 years. Terms and conditions of probation shall be set at the time of reinstatement.
During the period of probation and/or suspension, Respondent must successfully complete a two-year residency in general medicine or family practice if he has previously completed a one-year internship; if he has not previously completed a one-year internship, then he must successfully complete a three-year residency in general medicine or family practice.
This order takes effect upon filing with the Clerk of the Department of Professional Regulation.
DONE AND ORDERED this 13th day of December, 1988.
BOARD OF MEDICINE
J. DARRELL SHEA, M.D. ACTING CHAIRMAN
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS
ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE.
SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF PROFESSIONAL REGULATION AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing FINAL ORDER has been provided by certified mail to Moises Grimberg, M.D., 5349 N.E. 2nd Avenue, Miami, Florida 35137 and Paul Watson Lambert, Attorney at Law, Post Office Box 11189, Tallahassee, Florida 32302-3189; by U. S. Mail to William R. Dorsey, Hearing Officer, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32302; and by interoffice delivery to Stephanie A. Daniel, Attorney at Law, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32399-0750 at or before 5:00 p.m., this 30th day of December, 1988.
DOROTHY J. FAIRCLOTH
| Issue Date | Proceedings |
|---|---|
| Sep. 30, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 13, 1988 | Agency Final Order | |
| Sep. 30, 1988 | Recommended Order | Physician disciplined for illegible and incomplete office records, hospital admitting and discharge notes and progress notes. |
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs MARK D. SCHREIBER, M.D., 86-003496 (1986)
DEPARTMENT OF HEALTH, BOARD OF PODIATRIC MEDICINE vs DANIEL DRAPACZ, 86-003496 (1986)
BOARD OF MEDICINE vs. MOHEB ISHAD GIRGIS EL-FAR, 86-003496 (1986)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs MARK N. SCHEINBERG, 86-003496 (1986)
