STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0308

) DAVID L. STURDIVANT, SR., D.O., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Hearing Officer, William R. Cave, held a formal hearing in the above-styled case on July 11, 1989, in Deland, Florida.

APPEARANCES

For Petitioner: Bruce D. Lamb, Esquire

Chief Trial Counsel

730 S. Sterling St., Suite 201

Tampa, Florida 32609

For Respondent: David L. Sturdivant, Sr., pro se

1804 Nelson Street, #15 Ormond Beach, Florida 32704

STATEMENT OF THE ISSUE

Whether Petitioner's license as an Osteopathic Physician in the state of Florida should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.

PRELIMINARY STATEMENT

By an Administrative Complaint containing three counts dated December 11, 1987, the Petitioner, Department of Professional Regulation charged Respondent, David L. Sturdivant, Sr., a licensed osteopathic physician in the state of Florida, with several violations of Section 459.015(1), Florida Statutes.

Respondent disputed the allegations contained in the complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. Petitioner referred the matter to the Division of Administrative Hearings on January 22, 1988, with a request that a Hearing Officer be assigned to conduct a formal hearing. On June 20, 1988 the Petitioner filed an Amended Administrative Complaint but without an accompanying motion for leave to amend and no action was taken on the Amended Administrative Complaint at that time. On March 13, 1989 Petitioner filed with the Division of Administrative Hearings a Motion to Amend with a five-count Second Amended Administrative Complaint attached to the

motion. On March 28, 1989, the motion was granted by order allowing the matter to proceed forward using the Second Amended Administrative Complaint as the charging document. On April 12, 1989, Petitioner filed a Second Motion To Amend and by order dated April 21, 1989, the motion was granted to allow the Second Amended Administrative Complaint to be amended by adding a new paragraph 28 and renumbering paragraphs 28 through 37 to paragraphs 29 through 38 and allowing this matter to proceed forward using the Second Amended Complaint, as amended, as the charging document.

In support of its charges; Petitioner presented the testimony of David L. Sturdivant, Sr. Petitioner's exhibits 1 through 10 were received into evidence. Although Respondent testified as a witness for the Petitioner, he did not testify in his own behalf or offer any documentary evidence.

A transcript of this proceeding was erroneously filed with the Petitioner and the original copy was not filed with the Division of Administrative Hearings until September 15, 1989. The parties timely filed their proposed findings of fact and conclusions of law. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary adduced at the hearing, the following relevant facts are found:

1. Respondent is, and has been at all times material hereto, a licensed osteopathic physician in the State of Florida, having been issued license number OS 0003822. Respondent's last known address is 1804 Nelson Street, No. 15, Ormond Beach, Florida 32074.

   
   

2. From on or about July 17, 1985, until on or about April 28, 1987, Respondent diagnosed patient L.K. as suffering from, and rendered medical care and treatment for, juvenile fibromatosis or fibromatosis colli.

   
   

3. Juvenile fibromatosis and fibromatosis colli are conditions characterized by the occurrence of multiple fibromas. Fribromas are benign (non- malignant) neoplasms.

   
   

4. On or about July 17, 1985, Respondent executed a letter which was sent to the Exceptional Student Education Services section of the School Board of Volusia County (School Board) wherein Respondent represents that the patient

   L.K. "is being treated for a malignancy of the neck, etiology undermined."

   
   

5. On or about August 22, 1986, Respondent executed a letter intended to allow the patient L.K. to avoid required immunization wherein Respondent represents that patient L.K. "...has a malignancy which was not identified by multiple biopsy."

   
   

6. The representations made to the School Board in his letters of July 17, 1985, and August 22, 1986, were made in Respondent's practice of Osteopathic Medicine.

   
   

7. Only one biopsy of the patient's neck mass was performed prior to Respondent's letter of August 22, 1986, to the School Board. This biopsy was performed during March of 1980 by Gary Horndeski, M.D. The pathology report concerning this biopsy was not received by Respondent until March 18, 1987. The

   patient's neck mass had not been subjected to multiple biopsy as represented by the Respondent on August 22, 1986. The Respondent's representations in the August 22, 1986 letter were deceptive, untrue, and fraudulent.

   
   

8. The medical records of Respondent fail to document that Respondent performed multiple biopsies on the mass.

   
   

9. Respondent has failed to keep written medical records justifying the course of treatment of the patient, including but not limited patient histories, examination results, and test results.

   
   

10. Respondent prescribed, dispensed or recommended BHI Regeneration, Polyzyme 022 and Vitamin C 500 mg tablets to patient L.K.

    
    

11. On or about November 21, 1986, Respondent executed three separate forms authorizing the administration of BHI Regeneration, Polyzyme 022 and Vitamin C to patient L.K. by school personnel of Volusia County, indicating that he had ordered the administration of these substances as a "part of scheduled med program."

    
    

12. BHI Regeneration and Polyzyme 022 are "drugs" as defined by Section 499.003(8), Florida Statutes.

    
    

13. Respondent failed to note in patient L.K.'s medical records his prescribing, dispensing or recommendation of BHI Regeneration and Polyzyme 022.

    
    

14. Respondent's written medical records fail to document "informed consent" to the drug therapy initiated including medically acceptable alternative procedures or treatments.

    
    

15. The preferred course of treatment for a mass of the size and location as existing on patient L.K. would be surgical intervention.

    
    

16. Respondent's written medical records fail to adequately document the reason for not following the preferred course of treatment (surgery), that surgery was discussed with the patient's parents, or that the parents declined surgery.

    
    

17. Respondent's entry for March 10, 1987, in the medical record of patient L.K. indicates "recommend to get physiotherapy in lieu of surgery."

    
    

18. Respondent's medical records fail to justify the course of treatment of the patient, including but not limited to patient histories, examination results, and test results.

    
    

19. A reasonably prudent similar physician under similar conditions and circumstances would have referred patient L.K. to a specialist or obtained a consultation with a specialist. Respondent failed to do so.

    
    

20. A reasonably prudent similar physician under similar conditions and circumstances would not have recommended that patient L.K. not receive standard immunizations nor would such a physician have executed a school form allowing patient L.K. to be exempted from required immunizations.

    
    

21. A reasonably prudent similar physician would have obtained and reviewed prior biopsy report or conducted a biopsy on patient L.K. soon after undertaking the care of the patient.

22. Respondent has failed to practice osteopathic medicine with that level of care, skill and treatment which is recognized by a reasonably osteopathic physician as being acceptable under similar conditions and circumstances.

    
    

23. On or about April 7, 1987, the Board of Osteopathic Medical Examiners issued a Subpoena Duces Tecum commanding Respondent produce for copying and inspection any and all medical records of patient L.K.

    
    

24. On or about May 8, 1987, the aforementioned subpoena was served on Respondent to produce copies of any and all medical records of patient, L.K., on May 10, 1987, at 6501 Arlington Expressway, Jacksonville, Florida.

    
    

25. Respondent did not file a challenge or object in any fashion to the subpoena.

    
    

26. As a result of the Petitioner filing a petition for enforcement of the subpoena, Respondent furnished to Petitioner what was purported to be the medical records of patient L.K., and did not in any way advise Petitioner that there were certain records pertaining to L.K. that he did not consider medical records. The medical records of patient L.K. submitted by Respondent in response to the subpoena were incomplete.

    
    

27. Respondent's license to practice osteopathic medicine in the state of Florida was disciplined by the Board of Osteopathic Medical Examiners (Board) by its final order issued on April 19, 1988, wherein Respondent's license was suspended for one year; to be followed by a three year period of probation.

    
    

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding, pursuant to Section 120.57(1), Florida Statutes.

    
    

29. The alleged misconduct of which Respondent is accused purportedly violates Section 459.015(1)(n), Florida Statutes (1987), by making deceptive, untrue or fraudulent representations in the practice of osteopathic medicine [Count I]; Section 459.015(1)(p), Florida Statutes (1987), by 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 [Counts II & III]; Section 459.015(1)(y), Florida Statutes (1987), by gross or repeated malpractice or the failure to practice osteopathic medicine with that level of care, skill and treatment which is recognized by a reasonable prudent similar osteopathic physician as being acceptable under similar conditions and circumstances [Count IV] and; Section 459.015(1)(cc), Florida Statutes (1987), by violating any provision of Chapter 459, Florida Statutes, 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 [Count V].

    
    

30. In disciplinary proceedings, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino

1. Department of Health and Rehabilitative Services, 348 So.2d 349 (1 DCA Fla. 1977). The Petitioner has met its burden to show a violation of Section 459.015(1)(l), (n), (t) and (x), Florida Statutes (1985), now Section 459.015(1)(n), (p), (y) and (cc), Florida Statutes (1987). However, Count II

   having been plead in the alternative to Count I, and Count I having been proven, Count II should be dismissed.

   
   

   RECOMMENDATION

   
   

   Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore,

   
   

   RECOMMENDED that the Board enter a Final Order finding Respondent guilty of violating Section 459.015(1)(n), (p), (y) (cc), Florida Statutes (1989), as set forth in Counts I, III, IV and V of the Second Amended Administrative Complaint, as amended, and for such violation, considering the guidelines for imposing penalties set forth in Rule 2IR-19, Florida Administrative Code, and the aggravating or mitigating circumstances allowing the Board to deviate from those guidelines set forth in Rule 2IR-19, Florida Administrative Code, it is RECOMMENDED that Respondent's license to practice osteopathic medicine in the State of Florida be suspended for one year subject to the terms and conditions the Board deems appropriate for reinstatement. It is further RECOMMENDED that Count II be DISMISSED.

   
   

   Respectfully submitted and entered this 27th day of October, 1989, in Tallahassee, Leon County, Florida.

   
   

   WILLIAM R. CAVE

   Hearing Officer

   Division of Administrative Hearings The DeSoto Building

   1230 Apalachee Parkway

   Tallahassee, Florida 32399-1550

   (904) 488-9675

   
   

   Filed with the Clerk of the Division Administrative Hearings this 27th day of October, 1989.

   
   

   APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-0308

   
   

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

   
   

   Specific Rulings on Proposed Findings of Fact Submitted by Petitioner 1-26. Adopted in Findings of Fact 1-26, respectively.

   Specific Rulings on Proposed Findings of Fact Submitted by Respondent

   
   

   1. Respondent filed a one page, two paragraph Proposed Findings of Fact and Proposed Conclusion of Law that was an argument consisting of facts and law. To the extent that there are facts contained in his argument, they are either not material or not relevant.

COPIES FURNISHED:

Bruce D. Lamb, Esquire Chief Trial Counsel 730 S. Sterling Street Suite 201

Tampa, Florida 32609

David L. Sturdivant, Sr. 1804 Nelson Street, #I15 Ormond Beach, Florida 32704

Rod Presnell Executive Director

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Kenneth E. Easley, Esquire Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Docket for Case No: 88-000308

Orders for Case No: 88-000308