STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4643

)

MANUEL FAJARDO, M.D., )

)

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 April 22, 1988, at Tampa, Florida.

APPEARANCES

For Petitioner: David E. Bryant, Esquire

Department of Professional Regulation

220 East Madison Street, Suite 530 Tampa, Florida 33602

For Respondent: Manuel J. Fajardo, M.D., pro se

2814 West Buffalo Avenue Tampa, Florida 33607

By Administrative Complaint filed July 13, 1987, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of Manuel J. Fajardo, Respondent, as a medical doctor. As grounds therefor, it is alleged that in treating patients L. M. and E. J. in 1984 and 1985 Respondent made deceptive, untrue and fraudulent representations in the practice of medicine; that he exercised influence on these patients to exploit them for financial gain; and that he 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.

At the commencement of the hearing, Respondent requested the hearing be continued on grounds that he was without counsel. This motion was opposed by Petitioner who had all of its witnesses present and was ready to proceed.

By order entered April 13, 1988, this Hearing Officer granted the MOTION TO WITHDRAW AS COUNSEL FOR RESPONDENT dated April 12, 1988. This order was immediately transmitted to Respondent, and no motion from Respondent to continue was forthcoming. At the hearing when asked why he had not sooner requested the hearing be continued, Respondent replied that he had submitted a request in writing for a continuance three days prior to the hearing. Since hearings were scheduled for April 19-22, I was not in the Tallahassee office after April 18,

1988. Upon my return to Tallahassee, I received a letter from Dr. Fajardo to which he referred. This letter was dated April 20, 1988, and stamped as received by the Division of Administrative Hearings on April 21, 1988. Nowhere in the letter does Respondent describe any emergency that precluded him requesting a continuance more than five days prior to the date the hearing was scheduled.

Respondent's ore tenus motion for continuance was denied with the option to renew the motion at the conclusion of Petitioner's case to give Respondent additional time to present testimony of medical experts by deposition as late filed exhibits. At the conclusion of the hearing, Respondent was given twenty days in which to designate experts whose depositions would be taken within 30 days of the hearing and submitted as late filed exhibits within 60 days of April 22, 1988. No such notification or late filed exhibits have been received.

Thereafter Petitioner called eight witnesses, and seven exhibits were admitted into evidence. Respondent declined to represent himself in these proceedings although given the opportunity to cross examine witnesses and to present evidence.

Proposed findings submitted by the Petitioner are accepted, except proposed findings 16, 19 and 27 are rejected for reasons contained in the Appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. At all times relevant hereto Respondent was licensed to practice medicine in the State of Florida and was issued License No. ME 0027980 (Exhibit 6).

   
   

2. During the period 1984-86 Respondent operated Tampa Family Practice Center as Gold Plus HMO. He owned the clinic or at least totally controlled the clinic by closely supervising the doctors who worked for him at the clinic, requiring his approval of all medications prescribed for patients, for any referrals of patients to a consultant, or for hospitalization, all in an attempt to keep costs down. This clinic operated as a family practice clinic, and doctors were required to schedule up to 40 patients per day. No nephrologist or internal medicine specialists worked at the clinic.

   
   

3. L. M. received a kidney transplant in 1983 through the aegis of the Tampa Transplant Clinic and, following the transplant, was monitored by the clinic for several months on a routine basis.

   
   

4. In 1984, L. M. applied to join Respondent's Gold Plus HMO and was accepted as a patient by Respondent, after L. M. disclosed that he had received a kidney transplant in 1983. L. M.'s reason for joining the HMO was to save money on his medications.

   
   

5. L. M. was told by Respondent that the clinic would not normally accept kidney patients, but because L. M. had received a transplant he was no longer considered a renal patient.

   
   

6. L. M. was treated at Respondent's clinic for approximately twenty months during which period he was never referred to a nephrologist, nor were L. M.'s medical records requested from the doctors who had treated L. M. following his kidney transplant. At his clinic visits, his temperature, blood pressure

   and weight were taken, and his prescriptions for the drugs he was taking when he enrolled in Gold Plus were renewed.

   
   

7. During the final three months L. M. was treated at Respondent's clinic he lost approximately 40 pounds and started to feel poorly with nausea and lowering of his blood pressure. Despite the lowering of L. M.'s blood pressure, his medication to combat high blood pressure was continued. L. M. also suffered from diabetes and required insulin.

   
   

8. Had L. M. been referred to a nephrologist before his condition became critical, blood tests would have shown that the kidneys were not functioning normally and that some of the medications he was receiving were contra- indicated. It would also have shown he needed additional medication.

   
   

9. L. M.'s condition deteriorated rapidly, and he "crashed". He was transported to Carrollwood Community Hospital by ambulance as Respondent's patient, but he was not seen at the hospital by Respondent. However, a representative from Respondent's clinic went to the hospital to induce L. M. to sign a paper disenrolling himself from Gold Plus. Despite, or because of, his serious illness at this time, L. M. did not sign the release.

   
   

10. As L. M.'s condition appeared critical to the nurses at Carrollwood Community Hospital, the head nurse called Dr. Goldstein, a nephrologist who had treated L. M. before his transplant, to advise him L. M. was a patient in critical condition, and Respondent wasn't providing any help. Dr. Goldstein telephoned Respondent to tell him L. M. should not be at a community hospital where renal patients cannot be adequately treated without dialysis facilities and that L. M. should be transferred to Tampa General Hospital to the care of the renal transplant team. Respondent said he would try to arrange for the transfer of L. M., but needed to work out some financial arrangements.

    
    

11. When Dr. Goldstein learned a few hours later that L. M.'s transfer to Tampa General had not been ordered, he again called Respondent to demand that L.

    M. be transferred to Tampa General. Shortly thereafter L. M. was transferred, and upon his arrival an acute hemodialysis was done. At this time, L. M. had fluid in his lungs, a pulmonary infection, a blood count showing no kidney function and liver damage. Without dialysis L. M. would not have survived. Following his discharge from Tampa General L. M.'s transplanted kidney is working but not as well as it had before the inadequate treatment led to his crash. Because of this setback, L. M. will likely require a regrafting of another kidney in the future.

    
    

12. Another patient of Respondent was E. J., an end stage renal patient who, once he enrolled in Gold Plus, was never referred to a nephrologist for consultation, nor were E. J.'s records obtained by the clinic from the nephrologist who had earlier treated E. J.

    
    

13. E. J. had been admitted to Carrollwood Community Hospital several times before May, 1985 when he was admitted by Respondent suffering from kidney disease. Shortly after admission, E. J.'s condition deteriorated to the point the nurse became apprehensive for his survival. On the morning of May 22, 1985, the floor nurse was very concerned about E. J. and called in her supervisor.

    The only treatment that had been ordered by Respondent for E. J. was oxygen to help his breathing. The head nurse observed E. J. to be short of breath and afraid he was dying. She called Respondent to relay the patient's condition and requested Respondent's presence. Respondent repeated this order for oxygen and told the nurse to put Johnson on "no code". The nurse told Respondent that "no

    code" would not be accepted by the hospital over the phone and that he would have to personally sign the order at the hospital. Respondent told the nurse to call E. J.'s family and have them come to the clinic. When the nurse called Respondent again shortly thereafter, he hung up on her.

    
    

14. "No code" is the status reserved for terminally ill patients with no hope of recovery and a very short time to live. "No code" means that emergency measures will not be adopted to keep the patient alive and is ordered only after the doctor has discussed the patient's condition with the family and with the patient if he is capable of understanding, and all agree that is best for the patient. Fearing the patient would die, the nurse then called Dr. Goldstein and requested he look in on E. J. A few minutes later, the nurse again called Dr. Goldstein to request he come as soon as possible. Dr. Goldstein arrived at Carrollwood Community Hospital shortly thereafter. Upon his arrival, Dr. Goldstein found E. J. short of breath but sufficiently alert to say he didn't want to die. Dr. Goldstein recognized that E. J. needed dialysis as soon as possible and arranged to have the patient transferred to St. Joseph Hospital where hemodialysis was performed. E. J. recovered.

    
    

15. E. J.'s medical records showed that while under the care of Respondent he had been admitted several times to Carrollwood Community Hospital with the same symptoms, but no nephrologist had ever been consulted on this patient. The patient had been given treatment and prescriptions to treat the symptoms of his problem, but was never referred to a dialysis center for the hemodialysis he needed until the intervention of Dr. Goldstein.

    
    

16. No competent evidence was submitted that Respondent told L. M. that he could use no other physician while a member of Gold Plus. The hearsay testimony to this effect was not corroborated by the testimony of L. M. or any other witness who heard such instruction given.

    
    

17. Competent evidence was presented regarding Respondent's reluctance to admit patients to hospitals, even for emergencies, and his close monitoring and approving of prescriptions that the doctors working at Gold Plus issued to patients. This evidence clearly demonstrates that Respondent exercised influence on the patients in such a manner as to exploit them for financial gain.

    
    

18. A physician trained in family practice only is not competent to treat an end stage renal patient without referring the patient to a nephrologist for consultation. No evidence was submitted that Respondent had training in nephrology other than what he received while in medical school or as an intern.

    
    

19. A nephrologist who does not work frequently, if not exclusively, with renal transplant patients is not competent to treat a transplant patient without consultation with a transplant specialist. Changes in the field of transplant and immunosuppressant medications are occurring so rapidly that a physician needs to work in this field almost daily to remain current and qualified to safely treat and monitor such patients.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

21. Respondent is here charged with violating Section 458.331(1), Florida Statutes, which provides in pertinent part the following acts shall constitute grounds for which disciplinary action may be taken:

    
    

    (k) Making deceptive, untrue, and fraudulent representatives in the practice of medicine or employing a trick or scheme in the practice of medicine.

    (n) Exercising influence on the patient or client in such a manner as to exploit the patient or client for financial gain of the licensee or of a third party, which shall include, but not be limited to,

    the promoting or selling of services, goods, appliances, or drugs.

    (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.

    * * *

    As used in this paragraph, "gross malpractice" or "failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being accept- able under similar conditions and circumstances," shall not be con- strued so as to require more than one instance, event, or act.

    
    

22. In these proceedings, Petitioner has the burden of proving the allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

23. The only paragraph in the Administrative Complaint forming the basis for a finding that Respondent made false, deceptive and untrue statements in the practice of medicine In violation of Section 458.331(1)(1), as alleged in Count One, is paragraph 5 wherein it is alleged Respondent informed L. M. he could see no other physician than Respondent. The uncorroborated hearsay testimony presented was that Respondent told L. M. that he could see no other physician while enrolled at Gold Plus. Uncorroborated hearsay testimony cannot form the basis for such a finding. Section 120.58(1)(a), Florida Statutes. Harris v. Game and Fresh Water Fish Commission, 495 So.2d 806 (Fla. 1st DCA 1986). The admissible evidence to the effect that Respondent told L. M. that, as a renal transplant patient, he could be adequately treated at the family clinic was a deceptive and untrue statement, but was not charged in the Administrative Complaint. If Respondent actually believed L. M. could receive proper treatment at his family practice clinic, such belief is clear evidence of Respondent's incompetence as a physician.

24. With respect to Count Two that Respondent exercised influence on the two patients above described for financial gain in violation of Section 458.331(1)(t), that charge is supported by Respondent's attempts to order a "no code" for E. J. and his failure to refer these patients to a nephrologist for consultation. By allowing E. J. to die within a day or two, Respondent would avert the five to ten day hospital costs incurred by Gold Plus HMO for the hemodialysis of E. J. and to restore E. J. sufficiently to leave the hospital. By failing to refer either of these patients to a nephrologist, the HMO avoided having to pay the consulting fees that would have generated.

    
    

25. Finally, with respect to Count Three, by attempting to treat end stage renal patients such as L. M. and E. J. and a transplant patient such as L. M. in a family practice clinic without referring these patients to a nephrologist and transplant specialist, is clear evidence of gross malpractice as Respondent did not have the training or qualifications needed to adequately care for such patients.

    
    

26. From the foregoing, it is concluded that Respondent must be found not guilty of Count One, but that the evidence is clear and convincing that Respondent is guilty of Counts Two and Three as alleged.

    
    

27. Although Respondent was given twenty days after the close of the hearing to obtain expert witnesses and advise the Hearing Officer the names of such witnesses who would thereafter be deposed and their depositions admitted into evidence as late filed exhibits, Respondent has failed to provide such information and produce such evidence. It is

RECOMMENDED that Manuel J. Fajardo's license to practice medicine in Florida be revoked.

ENTERED this 26th day of May, 1988, in Tallahassee, Florida.

K. N. AYERS 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 26th day of May, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4643

Petitioner's Proposed Findings Rejected

16. Rejected because not supported by other than hearsay evidence.

19. Rejected as based on the same hearsay testimony that required rejection of finding 16.

27. Rejected as too broad. No evidence was submitted regarding patients other than L. M. and E. J.

COPIES FURNISHED:

David E. Bryant, Esquire

220 East Madison Street Suite 530

Tampa, Florida 33602

Manuel Fajardo, M.D. 2814 West Buffalo Avenue Tampa, Florida 33607

Dorothy Faircloth Executive Director Board of Medicine

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-004643

Orders for Case No: 87-004643