Pollock, a Hearing Officer with the Division of Administrative Hearings in Ft. Myers, Florida on December 10, 1987. The issue for consideration was whether Respondent's license as a medical doctor in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.
For Respondent: Dan E. Batchelor, Esquire
On April 30, 1987, Van B. Poole, then Secretary of the Department of Professional Regulation executed an Administrative Complaint in this case alleging that Respondent was guilty of a violation of Section 458.331(1)(x), Florida Statutes, by violating a previous Order of the Board of Medical Examiners entered in a prior disciplinary proceeding. On or about June 18, 1987, the Respondent executed an Election of Rights form on which he disputed the allegations contained in the Administrative Complaint and requested a formal hearing. On June 25, 1987, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer and the case was initially assigned to Hearing Officer Linda M. Rigot who, on July 24, 1987, set the case for hearing on September 16, 1987. Before the case could be heard, however, Respondent moved for a continuance which was granted by the undersigned on September 9, 1987, and the case was rescheduled for December 10, 1987, at which time it was held as scheduled.
At the hearing, Petitioner presented the testimony of Donna Marie Lindahl, an employee of the medical records section at Lee Memorial Hospital, and introduced Petitioner's Exhibits 1 through 4. Respondent testified in his own behalf and presented the testimony of Cory B. Shuler, also an employee of the medical records section at Lee Memorial Hospital. Respondent also adopted Petitioner's Exhibits 1 through 3 as Respondent's Exhibits A through C.
Subsequent to the hearing, a transcript of the proceedings was furnished to the undersigned and Petitioner submitted a Proposed Recommended Order which included Findings of Fact. Respondent did not submit Proposed Findings of Fact. Petitioner's submittal has been ruled upon in the Appendix to this Recommended Order.
At all times pertinent to the issues contained herein, the Respondent was a licensed medical doctor in Florida having been issued license number ME 0041256.
Respondent was awarded his medical degree by the University of Tennessee in 1977. He came to southwest Florida in January, 1983 starting his practice in August of that year. He thereafter applied for and was granted privileges at Lee Memorial Hospital and practiced in Lee County until January, 1985 when he moved to Collier County.
In January, 1985, Dr. Heiss notified Lee Memorial Hospital that he was moving his practice and that he no longer needed privileges at that facility. This was partly in response to a letter from the hospital asking him to resign which was, at least in part, based on his failure to keep his medical records current. He admits that prior to that time, he had received some notices involving incomplete records at the hospital and went in to work on them as best he could. However, due to his own medical problem which involved a prolonged throat infection that left him tired and weak, he could not accomplish much. This medical problem lasted for several months and when he was feeling better, he tried, to the best of his ability, he claims, during the summer of 1985, to complete the incomplete records. He went to the hospital and worked on some of them, but in late 1986, when he checked with clerical personnel in the medical records section, he was told his records were complete, and coincidentally, he stopped getting delinquency notices.
Under the procedure in effect at Lee Memorial Hospital for correcting incomplete records in 1984, once a week, Ms. Lindahl, the assistant manager of the records section, would go through the files to determine which records were delinquent. If dictation was needed, the chart would be declared delinquent in
15 days. If only the signature was missing, the doctor was give 45 days to correct it.
When the record was declared delinquent, medical records personnel would send a weekly reminder letter to the physician setting a one week suspense for correction and indicating that if the correction was not made, the doctor's hospital privileges could be suspended. These temporary suspensions, however, were not being enforced. According to Ms. Lindahl, in 1985, Dr. Heiss was identified and placed on the delinquent list 35 times. Because of this, he would have been sent 35 letters.
In January, 1985, at the time Respondent left Lee Memorial Hospital, he left incomplete 84 charts. Because of the volume of incomplete records left by
Respondent, the hospital Medical Records Committee, on May 2, 1985, authorized Ms. Lindahl to transfer these incomplete records to the permanent records section of the archives, a procedure that would not normally have been done with incomplete records. This transfer was accomplished in August, 1985.
After Respondent left the hospital, in January, 1985, up to March, 1985, Ms. Lindahl contacted him both at home and at his new office both by phone and by letter on several occasions, and asked him to come in and complete his records. Each of the letters sent indicated those charts, by name, which needed completion.
After the charts were transferred to permanent records in August, 1985, until February, 1987, Ms. Lindahl did not make any further effort to contact Dr. Heiss, nor did he contact her. However, she was informed by the Hospital Administrator that Dr. Heiss was to come in and work on the records. Therefore, she pulled these records for him and, in fact, the Respondent did, on some occasions, come in at night to work on them. Ms. Lindahl agreed to pull records for him as needed but advised him that she could not and would not pull all his incomplete records at one time.
Charts are placed on microfilm after a period of years. Some of Respondent's charts were microfilmed before he completed them. However, the hospital made arrangements for him to complete these records as well in an effort to accommodate him. Once the records were placed on microfilm, it was more difficult for Dr. Heiss to complete them since, initially, there was no dictating equipment available in the microfilm reading area. However, it could have been done by Respondent taking notes from the film and thereafter dictating those notes in the records room where dictating equipment was available. However, that was not necessary, since the hospital set up a booth with dictating capability in it for him in the microfilm reading area.
An Administrative Complaint was filed against Dr. Heiss in October, 1985, because of his incomplete files. The matter was referred to the Board of Medicine in February, 1987, after a stipulated settlement was reached between the Respondent and Counsel for the Board. On February 11, 1987, the Board of Medicine entered a Final Order which approved and adopted the stipulation entered into between Respondent and counsel for the Board on December 23, 1986. Paragraph 4 of the stipulated Disposition in this case provided that prior to the stipulation being presented to the Board, Respondent would complete all incomplete hospital records that he was responsible for at Lee Memorial Hospital.
Dr. Heiss contends that at that time, he understood his medical records to be complete, based upon his inquiry to personnel in the medical records section at the hospital. He indicates he made several inquiries of at least two separate employees who told him they could find no record of any incomplete files charged to him. Once his incomplete records were transferred to permanent storage, they were deleted from the computer and a routine inquiry would not have disclosed them. However, Ms. Lindahl had in her possession a complete list of his still incomplete records and a simple inquiry to her, the person in charge, would have given him the correct information.
Dr. Heiss did not check with Ms. Lindahl, who worked days even though he admits he may have been in the hospital for other reasons on several occasions during the day. He would usually come in during the evenings, and on one occasion, spoke with Mr. Shuler, the night records custodian, who checked
the computer and found no record of the doctor's delinquency. Mr. Shuler, however, advised Dr. Heiss to check with Ms. Lindahl.
Dr. Heiss states he believed that the Stipulation he worked out with counsel for the Board in response to the initial Complaint, took care of the problem. When he went before the Board in February, 1987, he had checked with medical records at the hospital and had been told his status was clear. This check was not with Ms. Lindahl, however. When he did so, he found he did have unfinished records. It was at that time, after the stipulation was signed, that he began to bring the records current.
Dr. Heiss admits that during the period 1985 - 1986, believed there were some medical records that were incomplete but because they had been filed in the permanent records section, he believed his responsibility for them was fulfilled. As a practicing physician, he relies upon the medical records section to tell him what records need to be completed. When he was advised by that agency that he was no longer delinquent, he felt satisfied. This argument is specious and without merit.
Respondent admits he did not make any attempt to work on the records from January to July, 1986. He contends that from July, 1986 to January, 1987, he called the hospital several times to check on his records but could get no indication he had files undone. It was not until after the Board meeting in February, 1987, when Mr. Shuler told him to speak with Ms. Lindahl, that he determined he did have some medical records incomplete. Notwithstanding, he knew he had some dictation that was incomplete and some matters were unsigned and in his opinion, it is more a question of semantics, (what the term, "incomplete" meant), and not knowing what he had to do. He contends he dealt in good faith with the hospital and with the Board of Medicine and was surprised to find out that he was not in good standing. This argument as well, is unbelievable.
Dr. Heiss contends he relied on what he was told by the people at medical records but at no time until after he entered into the Stipulation with the Board of Medicine in 1987 did he contact Ms. Lindahl even though he knew she was the one who was in charge of delinquencies and was still employed by the hospital. It was incumbent upon him as the physician to contact the person in charge, especially in light of his suspicion that certain records were incomplete, and not rely on phone calls to anyone who answered. This does not constitute reasonably prudent action or the actions of a reasonable man. It cannot reasonably be claimed that Dr. Heiss' actions were based on an honest and reasonable mistake of fact. As a physician, he should have assumed that the Board wanted and required all records to be completed and it was his responsibility to insure that the records were, in fact completed. This he failed to do.
On March 20, 1987, Respondent still had 53 charts incomplete of the 84 charts he had left incomplete when he departed the staff of Lee Memorial Hospital. These 53 charts were completed by November, 1987.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.
In the Administrative Complaint, Petitioner alleges that the Respondent has violated Section 458.331(1)(x), Florida Statutes, which authorizes the Board to take disciplinary action when, inter alia, the physician has violated,
... 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, ...
Since the Stipulation was presented to the Board upon Respondent's representation in February, 1987, and the evidence clearly indicates that the records were not completed until November, 1987, it is clear that Respondent violated the terms of the prior Board Order and is guilty of a violation as alleged in the current Administrative Complaint.
Though Respondent's failure to comply with the terms of the Board Order might not have been premeditated and intended, it certainly was the result of a cavalier disregard of his responsibilities to the Board and to the patients whose records were represented.
The Board has consistently taken a serious view of violations of its prior Orders and it would appear that significant action is appropriate here as well.
Petitioner has moved for Costs and Fees for the final hearing in this case relying on Respondent's answer to a request for admission in which he denied having completed approximately 53 records. This issue of fact was resolved against the Respondent, but it appears to have been a bona fide issue of fact and not so flagrant an attempt to mislead or obfuscate as to merit the award of fees and costs. Therefore, the Motion For Costs and Fees is denied.
