STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 86-5058

)

FERNANDO JIMINEZ, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, conducted a formal hearing in this cause on October 28, 1987 in Ft. Lauderdale, Florida. The following appearances were entered:

APPEARANCES

FOR PETITIONER: Michael J. Cohen, Esquire

517 S.W. First Avenue

Ft. Lauderdale, Florida 33301

FOR RESPONDENT: Donald G. Korman, Esquire

Suite 400, The Dart Building 2101 North Andrews Avenue

Ft. Lauderdale, Florida 33311 PROCEDURAL BACKGROUND

By Administrative Complaint dated October 27, 1986, the Respondent, a licensed physician in the State of Florida, is charged with violating several provisions of the Medical Practice Act, Chapter 458, Florida Statutes, arising from the medical records kept in the care and treatment of a patient named William Dean. The Respondent disputed the allegations of fact contained in the Administrative Complaint and requested a formal administrative hearing pursuant to Chapter 120, Florida Statutes.

At the final hearing, the Petitioner presented the testimony of six witnesses. In addition, Petitioner's Exhibits 1 through 9 were duly offered and admitted into evidence. The Respondent testified in his own behalf and presented the testimony of two (2) witnesses. Respondent's Exhibits 1 and 2 were duly offered and admitted into evidence. The parties have submitted post- hearing proposed Findings of Fact. A ruling on each proposed finding of fact is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact:

1. The Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME 0031545. The Respondent practices in south Florida as a cardiologist.

   
   

2. The Respondent treated patient William Dean from 1979 through 1982. William Dean died of heart failure on August 30, 1982. Following Mr. Dean's death, his wife, Elizabeth Dean, obtained from Respondent copies of Dean's medical records.

   
   

3. On July 2, 1983, Elizabeth Dean filed a complaint by letter with the Department of Professional Regulation against the Respondent. As a result of Mrs. Dean's complaint, the Petitioner began an investigation of the Respondent and notified Respondent of same. In addition, Mrs. Dean sued the Respondent for malpractice.

   
   

4. During the investigation by Petitioner, copies of Mr. Dean's records were obtained from the Respondent. When the records obtained by Petitioner were compared with the earlier records obtained by Mrs. Dean, it was discovered that Respondent had made at least two additions to them.

   
   

5. After being notified of the complaint and investigation, the Respondent added entries to the progress notes on Mr. Dean for November 12, 1981 and May 15, 1982. Among other things, the additions to the progress notes indicated that Respondent had advised Mr. Dean to take a stress test and angiogram and that Dean had refused.

   
   

6. The Respondent dictated Mr. Dean's patient Expiration Summary, which appears in the hospital's patient charts, on October 17, 1983, fourteen months' after Mr. Dean's death. Humana Hospital Cypress, where Mr. Dean died, requires that physicians prepare patient expiration summaries within thirty (30) days after the patient's death.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

   
   

8. The Petitioner, Board of Medicine, within the Department of Professional Regulation, is charged with regulating physicians and the practice of medicine in the State of Florida pursuant to the Medical Practice Act, Chapter 458, Florida Statutes.

   
   

9. Count I of the Administrative Complaint charges a violation of Section 458(1)(i), Florida Statutes, (1985) (reenacted in 1986 as subsection (h)) - - making or filing a report which the licensee knows to be false and/or intentionally or negligently failing to file a report or record. Count II of the complaint charges a violation of Section 458.331(1)(n), Florida Statutes (1985) (reenacted in 1986 as subsection (m)) - failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results and test results. Count III

   charges a violation of Section 458.331(1)(h), Florida Statutes (1985) (reenacted in 1986 as subsection (g)) - - failure to perform any statutory or legal obligation placed upon a licensed physician. Count IV charges a violation of Section 458.331(1)(1), Florida Statutes, (1985) (reenacted in 1986 as subsection (k))- - making deceptive, untrue, or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine when such scheme fails to conform to the generally prevailing standards of treatment in the medical community. Lastly, Count V charges a violation of Section 458.331(1)(t), Florida Statutes, - - gross or repeated malpractice or the failure to practice medicine with the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under the circumstances.

   
   

10. By adding important information to Dean's medical records approximately one year late and only after an investigation had been commenced, the Respondent is guilty of a violation of Section 458.331(1)(i), Florida Statutes, in that Respondent intentionally or negligently failed to file a report or record. In failing to indicate that the additions to the record were "late" entries, the Respondent is also guilty of filing a false report because the entries clearly give the impression that they were made as dated on the records - November 12, 1981 and May 15, 1982. It is important to note, however, that the evidence did not show that the substance of the entries were false.

    For instance, the evidence did not establish that Respondent did not, in fact, advise Mr. Dean to take an angiogram or stress test. Nevertheless, the Respondent is guilty as charged in Count I of the Administrative Complaint.

    
    

11. The evidence established that the Respondent is guilty of a violation of Section 458.331(1)(n), Florida Statutes in that the Respondent failed to keep written medical records justifying the course of treatment of Mr. Dean, in particular, the patient expiration summary. The preparation of the expiration summary, over one (1) year after the patient's death and only after an investigation had been instituted, amounts to a failure to keep such record or report. Both the legislature and the courts have recognized that "the record keeping aspect of a physician's practice is of fundamental importance." Rizzo v. Board of Medical Examiners, 12 FLW 2768 (Fla. 4th DCA 1987). The Respondent is guilty as charged in Count II of the Administrative Complaint.

    
    

12. Count III of the Administrative Complaint charges that Respondent failed to perform any statutory or legal obligation placed upon a licensed physician in violation of Section 458.331(1)(h), Florida Statutes. Because the Respondent is guilty of violating Sections 458.331(1)(i) and (n), Florida Statutes, which place affirmative duties on the licensed physician, he is by necessity guilty as charged in Count III of the Administrative Complaint.

    
    

13. Count IV of the Administrative Complaint charges that Respondent violated Section 458.331(1)(2), Florida Statutes by making deceptive, untrue, or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine when such scheme fails to conform to the generally prevailing standards in the medical community. Webster's New Riverside University Dictionary defines a "trick" as "[a]n indirect, often deceptive or fraudulent means of achieving an end; a mischievous act." Likewise, Webster's defines a "scheme" as "a plan, especially a secret or underhand one." On the basis of the evidence presented, it appears that the only logical reason Respondent had to alter the medical records was to cover any criticism relating to his failure to have Dean undergo a stress test and angiogram. The evidence established that prevailing standards in the medical community require that late entries in patient medical records, especially those over one year old, be

    clearly identified as such. Although the operative facts which establish this charge are virtually identical to those which establish the Respondent's violation of Section 458.331(1(i), Florida Statutes (filing a false report), a separate violation of the statutes has been shown. The Respondent is guilty as charged in Count IV of the Administrative Complaint.

    
    

14. Count V of the Administrative Complaint charges that the Respondent violated Section 458.331(1)(t), Florida Statutes by 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 similiar conditions and circumstances. The proper maintenance of patient medical records is an integral part of a physician's practice of medicine. The evidence established that making entries in patient medical records, which are over one (1) year old and failing to identify them as such and preparing a patient expiration summary over one (1) year after the death of the patient constitutes the practice of medicine below an acceptable level of care, skill and treatment required of a reasonably prudent similar physician under similar conditions and circumstances as the Respondent. The Respondent is guilty as charged in Count V of the Administrative Complaint.

RECOMMENDATIONS:

Based on the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that the Board of Medicine enter a Final Order in this cause placing the Respondent on probation for a period of one (1) year under such terms and conditions as the Board deems appropriate and further assessing an administrative fine of $5,000.

DONE and ORDERED this 25th day of January, 1988 in Tallahassee, Leon County, Florida.

W. MATTHEW STEVENSON 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 25th day of January, 1988.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-5058

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner:

1. Rejected as contrary to the weight of the evidence. 1(a)-(n) Rejected as argument and/or a recitation of testimony.

2. Adopted in Finding of Fact 5.

   2(a)-(c) Rejected as argument and/or a recitation of testimony.

3. Rejected as contrary to the weight of the evidence and/or subordinate.

3(a)-(g) Rejected as argument and/or a recitation of testimony. Rulings on Proposed Findings of Fact Submitted by the Respondent:

1. Adopted in substance in Finding of Fact 2.

2. Adopted in substance in Finding of Fact 1.

3. Adopted in substance in Finding of Fact 3.

4. Adopted in substance in Finding of Fact 4.

5. Rejected as a recitation of testimony.

6. Rejected as a recitation of testimony.

7. Rejected as a recitation of testimony.

8. Adopted in substance in Finding of Fact 5.

9. Adopted in substance in Findings of Fact 6.

10. Rejected as subordinate and/or unnecessary.

11. Rejected as subordinate and/or unnecessary.

COPIES FURNISHED:

Donald G. Korman, Esquire 2101 North Andrews Avenue Suite 400, The Dart Bldg. Ft. Lauderdale, Fl 33311

Stephanie A. Daniel, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Michael J. Cohen, Esquire

517 S.W. First Avenue

Ft. Lauderdale, Florida 33301

William O'Neil, Esq. Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Dorothy Faircloth Executive Director Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-005058

Orders for Case No: 86-005058