STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF ) OSTEOPATHIC MEDICAL EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 89-4323
)
JULES MINKES, D.O., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly appointed Hearing Officer, J. Stephen Menton, held a public hearing in the above-styled case on April 26-27, 1990, in Miami, Florida.
APPEARANCES
For Petitioner: Mary B. Radkins, Esquire
Senior Attorney
Department of Professional Regulation
1940 N. Monroe Street Suite 60
Tallahassee, Florida 32399-0792
For Respondent: Daniel C. Minkes, Esquire
17615 S.W. 97 Avenue
Miami, Florida 33157 STATEMENT OF THE ISSUES
The issue in this case is whether disciplinary action should be taken against Respondent's license to practice osteopathic medicine, license No. OS 001516, based on the alleged violations of Section 459.015(1), Florida Statutes, as set forth in the Administrative Complaint.
PRELIMINARY STATEMENT
On June 20, 1989, the Petitioner filed an Administrative Complaint against Respondent, Jules G. Minkes, D.O., alleging that Respondent violated Section 459.015(1)(r), Florida Statutes, by failing to refer one of his patients (referred to as "Patient #1" in the Administrative Complaint and as the "Patient" or "T.G." in this Recommended Order) to a specialist for adequate treatment of her basal cell carcinoma, thus exploiting her for his own financial gain. The Administrative Complaint also alleges that Respondent violated Section 459.015(1)(p), Florida Statutes by failing to keep medical records justifying his course of treatment for the Patient and Section 459.015(1)(y),
Florida Statutes, by attempting to treat the Patient's growing recurrent basal cell carcinoma, a condition which the Administrative Complaint alleges should have been treated by a specialist in that area of medicine. Respondent denied the allegations of the Administrative Complaint and timely requested a formal hearing. The case was referred to the Division of Administrative Hearings which noticed and conducted the hearing.
At the hearing, the Petitioner presented the testimony of five witnesses: Andrew Bravo, records custodian at the University of Miami School of Medicine, Department of Dermatology; Providence Padrick, an investigator employed by the Department of Professional Regulation; C.G., the husband of the Patient; Charles House, M.D., one of the Patient's treating physicians; and Joseph Rosin, D.O., an osteopathic physician who is Board certified in internal medicine.
Petitioner offered twelve exhibits into evidence, all of which were accepted. Petitioner's Exhibits 2 and 3 were depositions of two other physicians who treated the Patient. Prior to the hearing, Respondent filed a Motion in Limine which sought to preclude the introduction of those depositions into evidence. Respondent contended that those depositions were largely factual in nature and did not constitute expert testimony for purposes of Florida Rules of Civil Procedure 1.330(3). At the hearing, the parties were advised that the depositions would be reviewed and considered in accordance with the provisions of Section 120.58(1)(a), Florida Statutes, which allows hearsay evidence to be used in an administrative proceeding to supplement or explain other evidence.
Ruling was reserved with respect to whether the depositions were admissible under Florida Rules of Civil Procedure 1.330(3). The parties were granted leave to address this issue as part of their proposed recommended orders.
After consideration of the arguments of the parties during a telephone hearing on the Motion in Limine and at the final hearing and Petitioner's argument in its proposed recommended order (Respondent's proposed recommended order did not address this issue) the depositions are accepted into evidence. Although the depositions include some testimony that would appear to be merely "factual" in nature, i.e., the circumstances surrounding the deponent[s] treatment of the Patient, the depositions also include expert testimony regarding various medical procedures and treatments. It is clear that both witnesses qualify as expert witnesses as defined in Florida Rules of Civil Procedure 1.390(a). While there is little legal precedent interpreting the provisions of Florida Rules of Civil Procedure 1.330(a)(3)(F), that rule permits the use of the deposition of an expert witness without any qualification that the deposition can only be used with respect to "expert" testimony. The Committee Notes to Florida Rules of Civil Procedure 1.390 reflect that one of the purposes of the rule is to "make the presentation of expert testimony less expensive and less onerous to the expert and to admit the expert's deposition at trial regardless of his residence." In view of this clear policy to encourage the liberal use of depositions of experts, Petitioner's Exhibits 2 and 3 are accepted. Both depositions have been reviewed and considered in the preparation of this Recommended Order.
Respondent testified on his own behalf and also presented the testimony of Lynn Whitton Evans, a nurse practitioner who assisted in the treatment of the Patient, Gloria McKenzie, a medical assistant who assisted in the treatment of the Patient, and Ira Hershman, D.O., an osteopathic physician who is Board certified in family medicine. Respondent offered three exhibits into evidence, all of which were accepted. Respondent's Exhibits 1 and 2 were copies of excerpts from certain medical texts. At the conclusion of the hearing,
Petitioner was granted leave to submit additional portions of those texts into evidence. Petitioner submitted additional portions of the medical texts and a description of Mohs Surgery as late-filed exhibits.
At the conclusion of the hearing, the Respondent was granted leave to supplement the record in this proceeding by submitting the deposition testimony of one witness who was unavailable at the time of the hearing, Linda Goldenberg, R.N., a registered nurse who assisted in the treatment of the Patient.
Respondent submitted the videotaped deposition of Linda Goldenberg on June 21, 1990. In addition, Respondent was granted leave to submit additional cross- examination of the three physicians who testified by deposition and to submit evidence regarding previous opinions rendered by one of Petitioner's experts, Dr. Tyler, in a prior investigation of Respondent. However, no such supplementary evidence has been submitted.
A transcript of the proceeding has been filed. Both parties have timely submitted proposed recommended orders. A ruling on each of the parties' proposed findings of fact is included in the Appendix attached to this Recommended Order.
FINDINGS OF FACT
Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made:
At all time pertinent to this proceeding, Respondent, Jules G. Minkes, was licensed as an osteopathic physician in the State of Florida having been issued license No. OS 001516.
There is no evidence that Respondent has ever been the subject of prior disciplinary action by the Petitioner, Department of Professional Regulation, and/or the Board of Osteopathic Medical Examiners.
Respondent is certified by the American College of Osteopathic Internists, the American College of Osteopathic Board of Cardiology, the American Osteopathic Board of Nuclear Medicine and the American Board of Nuclear Medicine. Respondent has no advanced or specialized training in dermatology, however, he did complete courses in dermatology as a student and, as part of his primary care practice, he does provide some minor dermatological treatments.
At all pertinent times, Respondent was the medical director of South Dade Osteopathic Medical Center d/b/a Suburban Medical Center ("Suburban"). Suburban was a primary care provider facility with International Medical Center ("IMC"), a health maintenance organization ("HMO"). Suburban contracted to become part of the IMC HMO system beginning in June of 1981.
Under the IMC system, a patient's primary care physician was the "gatekeeper" four medical services. In the absence of an emergency, a patient was required to first see his primary care physician in order to be referred to other specialized medical care.
Conflicting evidence was presented regarding the operation of the IMC program and the procedures for referring patients to specialized medical care and/or physicians who were not part of the HMO network. The IMC referral procedures and the manner of allocating the costs of specialized treatment were
not the same at all IMC facilities and were changed several times during the early and mid 1980's. (Certain pertinent aspects of the referral process are explored in more detail in Findings of Fact 37 below.)
IMC developed a network of physicians to whom primary care physicians could refer patients for specialized medical treatment. In accordance with its IMC contract, Suburban was expected to provide all primary medical care for all IMC patients assigned to the center. Respondent and Suburban agreed to refer IMC patients to specialists, hospitals, etc. within the IMC network "unless approval for a nonparticipating facility or a professional is specifically approved by the medical director or executive director of IMC." At all times pertinent to this proceeding, Respondent referred his HMO patients to the IMC specialist network with the expectation that those specialists would either treat the patient or further refer them as necessary.
Some IMC affiliated providers entered into "risk" contracts with IMC and were responsible for paying specialists and/or directly negotiating arrangements for those specialists to be compensated. The evidence established that, during the time that the Patient was treated at Suburban, Suburban did not have a "risk" contract with IMC. As set forth on page 4 paragraph 23 of the contract between Suburban and IMC (Respondent's Exhibit 3) IMC paid the specialists attending to Suburban's HMO Medicare patients.
In accordance with Suburban's contract, IMC allocated a specific amount per member per month to be deposited into an account and applied towards payments of the specialists. At the end of each quarter of the calendar year, IMC was supposed to distribute any sums remaining in the specialists' account to Respondent. However, during the time the contract was in effect, there were never any funds remaining in the specialists' account at the end of any calendar quarter. Therefore, no funds from this account were ever distributed to Respondent.
IMC developed a plan for treating Medicare eligible patients. This program was known as the Gold Plus Plan and required the patient to essentially assign their Medicare benefits to the HMO. All patients who enrolled in the Gold Plus Plan executed an agreement acknowledging that all non-emergency medical treatment had to be provided or arranged for by IMC and that they would be limited to seeing doctors within the IMC network. All patients were advised that they could see a specialist at their own expense or could disenroll from the HMO at any time and return to their prior Medicare status.
The Patient, T.G., enrolled in the IMC Gold Plus Plan in July of 1982 and executed the standard agreement. At the time she was first seen at Suburban, T.G. was approximately 68 years old. She was a somewhat difficult patient who frequently complained of numerous minor ailments.
In approximately 1978, while she was living in New York, T.G. had a basal cell carcinoma removed from her forehead by a dermatologist.
T.G. and her husband, C.G., moved to Florida in approximately 1978. Shortly thereafter, additional lesions appeared on her forehead.
The Patient's family physician at the time, Dr. Kenneth Hertz, referred T.G. to a dermatologist, Dr. Darrell Blinski, who biopsied the lesions in August of 1981.
The pathology report from the biopsy contained a diagnosis of "basal cell carcinoma; both side margins are involved. The deep margin is clear." Involvement of the surgical margins of a biopsy indicates the basal cell carcinoma has spread to the limits of the biopsy and perhaps beyond.
On August 22, 1981, T.G. was admitted to coral Reef General Hospital where Dr. Blinski attempted to excise the basal cell carcinoma and performed a Limberg flap procedure to cover the skin defect on her forehead. As a result of the procedure, the Patient had a noticeable scar in the middle of her forehead. Dr. Blinski's admission notes in connection with this August 22, 1981 procedure indicate T.G. had:
... a history of multiple recurrences of basal cell carcinoma of the forehead under treatment in New Jersey and down here... incisional biopsy of a central forehead lesion was done and returned as a basal cell carcinoma, margins involved. The area in question wad in the central forehead. The physical examination revealed an ulcerated lesion measuring 2 mm x 5 mm in the central forehead with a scarred area to the left of that measuring 4 mm in diameter.
Involved skin is within 1 cm. Examination of the rest of the facial skin was negative for lesions.
A pathology report dated August 27, 1981 on tissue removed during the procedure performed by Dr. Blinski revealed basal cell carcinoma with the "left lateral margin free of tumor, all others surgical margins involved with tumor." In other words, not all of the tumor was removed during the surgery by Dr. Blinski.
Dr. Blinski referred the Patient to Dr. Henry Menn for consultation. Dr. Menn was a professor of dermatology and head of the Mohs chemosurgery unit at the University of Miami. In a letter dated September 21, 1981, Dr. Menn advised Dr. Blinski that he thought:
It would be best to initiate Mohs Chemosurgery excision of the residual basal cell carcinoma discovered by you in the surgical margins of your excised specimen performed on 27th of August, 1981, from tissue removed from the forehead. In approximately four weeks inflammation and irritation normally present after a surgical flap procedure will be reduced and the chemosurgical excision will be more easily accomplished.
Dr. Menn apparently changed his treatment plan for the Patient because, instead of undertaking chemosurgery, he simply followed the patient clinically until the summer of 1982. During that time period, there were no clinical signs of regrowth of the basal cell carcinoma. While primary basal cell carcinoma typically grows in little mounds of cells, recurrent basal cell
carcinoma can grow in a different, infiltrative fashion. This type of growth tends to be more subtle and the skin can appear normal for extensive periods of time.
T.G. returned to Dr. Menn on December 17, 1981 and, in a letter dated December 21, 1981, Dr. Menn advised Dr. Blinski that:
... about four months have now passed since you excised the large basal cell carcinoma on her forehead. There is no clinical evidence of regrowth of tumor even though the surgical excision margins were involved by tumor after your treatment. Close clinical inspection and palpation do not reveal the evidence of basal cell carcinoma at this time... I will continue to follow the patient at periodic intervals. If there is any evidence of malignancy, I will do an excisional biopsy and initiate chemosurgical treatment as indicated.
On March 15, 1982, Dr. Blinski examined the patient and advised Dr. Menn by letter that "there is no recurrence as of this time. She will be followed in four months."
By letter dated May 19, 1982, Dr. Menn advised Dr. Blinski "I re- examined our patient [T.G.] on the 18th of May, 1982. I am pleased to report that there is no evidence of regrowth of the skin cancer were [sic] you performed plastic surgery on her forehead... I will continue to follow the patient."
On July 22, 1982, T.G. and her husband joined the IMC Gold Plus Plan. Because the Gold Plus Plan required the enrollees to assign their Medicare benefits, T.G. stopped seeing Dr. Menn at this time.
T.G. had an appointment with Dr. Menn on October 7, 1982. Dr. Menn's notes indicate that the patient did not appear for her appointment and there is a notation that the "patient wishes to continue care in her HMO."
Suburban was the HMO affiliate center to which T.G. was assigned.
T.G.'s first visit to Suburban took place on September 3, 1982. During that visit, T.G. advised the Respondent that she had a history of skin cancer. During the physical examination of the Patient, the Respondent noted the scar on her mid-forehead. At the time of the Patient's initial visit to
Suburban, the medical records of her prior treatment by Dr. Blinski and Dr. Menn were not available. At some point, those records were obtained by the Respondent. However, it is not clear when the records were received.
T.G.'s second visit to Suburban was on September 17, 1982. There is no indication in the medical records of that visit that her forehead was examined.
On October 4, 1982, T.G. returned to Suburban and complained to Respondent that her "forehead always feels hot." The Respondent noted a "small left papular swelling 4mm at lower portion of scar-subcut." Under the "assessment" portion of his medical form, Respondent wrote "(1) follow possible recurrence basal cell carcinoma-left lower forehead (2) 1-2mm lesion on right forehead (3) keratotic lesion-right arm."
During the October 4, 1982 visit, Respondent hyfercated the lesions on the Patient's right forehead and right arm. Hyfercation is an electrocauterization that burns or desiccates skin lesions by removing the water content of skin cells. Hyfercation destroys tissues and, as a result, the tissue cannot be pathologically diagnosed unless a biopsy is first taken. No biopsy was taken prior to the hyfercation of either of the lesions. Although Respondent has no specialized training in dermatology, he regularly hyfercates skin lesions as part of his office practice. Respondent believes that he has the ability to differentiate between minor, obviously benign skin lesions and those that are more questionable and should be referred to a dermatologist. Respondent noted on the medical records from this visit to "follow for excisional biopsy." That comment was made with respect to the lesion on the Patient's lower left forehead. That lesion was not hyfercated. Instead, the Respondent decided to refer the Patient to a dermatologist in the IMC system for the treatment of that lesion.
On October 14, 1982, the Respondent signed the referral form for T.G. to go to the IMC Dermatology Center at a facility known as the Westchester Clinic. An appointment with the IMC dermatologist was scheduled for October 21, 1982. On that day, the Patient was seen by Dr. Seymour Munzer, a dermatologist affiliated with IMC. The exact nature of Dr. Munzer's business relationship with IMC was not established, but he apparently traveled to various IMC Centers to treat patients.
During the October 21, 1982 visit, Dr. Munzer noted the Patient's history of surgery for basal cell carcinoma with Dr. Blinski. He noted some nodular firmness above the left brow. His diagnostic impression was "(1) prob. [sic] scar tissue (2) r/o [rule out] recurrent basal cell carcinoma." Patient stated on several occasions that she did not like Dr. Munzer and wanted to see Dr. Menn, her options under the Gold Plus Plan were fully explained to her and she was advised that, under that plan, her treatment would have to be coordinated through the IMC dermatologist. She was also advised that she could see Dr. Menn at her own expense or disenroll from the program and continue her care under traditional Medicare procedures. The Respondent never completed any additional dermatological referral forms for the Patient. While Dr. Munzer claims that a written referral from the primary care physician was necessary every time a patient returned to see him, this testimony is rejected. The more creditable evidence established that Respondent was not required under the IMC system to issue a referral for each visit by a Patient to an IMC specialist.
Dr. Munzer biopsied the lesion over the Patient's left brow and submitted it for pathological diagnosis.
The pathology report was returned on October 26, 1982 and indicated "basal cell carcinoma, infiltrating. Surgical margins involved by the lesions."
T.G. returned to Suburban on November 3, 1982. The records of that visit indicate that the Respondent was waiting for the pathology report. For his assessment, Respondent noted "r/o [rule out] basal cell carcinoma forehead."
Respondent's plan was to "follow path report Westchester Center." During the November 3 visit, Respondent removed a 1mm keratotic lesion from the Patient's lower right chin.
The Patient returned to Suburban on November 23, 1982. By that time, Respondent had received a copy of Dr. Munzer's report and the pathology report on the biopsy performed by Dr. Munzer. The Respondent discussed the results of the biopsy with the Patient and her husband and explained that she needed to follow up with the dermatologist. While the Patient and her husband have testified that the Respondent advised them that he could treat her basal cell carcinoma, this testimony is rejected. The more creditable evidence established that the Respondent advised the Patient of her need for follow-up by a dermatologist.
The Respondent discussed the results of the biopsy with Dr. Munzer by phone and it was his understanding that Dr. Munzer would continue to follow the Patient and provide whatever additional treatment was necessary. The Respondent never received any additional reports or correspondence from Dr. Munzer regarding the Patient. Because the IMC specialists rotated between several hospitals, there was often alot of confusion regarding the paperwork for those patients referred to specialists. It was not unusual for there to be significant delays between the time an IMC specialist saw a patient and the time the specialist's report was sent to the primary care physician. In fact, in many instances such reports were never received. Thus, while Respondent did not receive any further reports from Dr. Munzer, Respondent thought Dr. Munzer and/or IMC was providing treatment for the Patient's basal cell carcinoma as diagnosed in the October 26, 1982 pathology report.
No records of the treatment rendered by Dr. Munzer could be obtained from either Dr. Munzer or the Westchester Clinic where Dr. Munzer treated the Patient. It is not clear whether the Patient ever returned to Dr. Munzer for further evaluation or treatment. 1/ However, it is clear that Respondent and his office staff advised the Patient on several occasions that she needed to follow-up with the dermatologist. While the
There is no evidence that Dr. Munzer ever developed a plan for treating T.G. Dr. Munzer could not specifically recall his treatment of this Patient except to review his report and the pathology report in Respondent's records. Dr. Munzer testified that he would not have attempted to treat a patient with recurrent basal cell carcinoma on the face, particularly in the area of scar tissue. Instead, he states that he would have recommended either Mohs chemosurgery, referral to a plastic surgeon or possibly radiation therapy. However, it does not appear that Dr. Munzer ever communicated his reluctance to treat such a condition to the Respondent. As far as the Respondent knew, Dr. Munzer and/or the IMC Dermatology Center were capable of treating this Patient.
While Dr. Munzer claimed that he did not have authority to refer a patient from an affiliate center for further follow-up, at the very least his input and recommendation would have been essential to determine how to treat a patient with unique dermatological problems. In this case, it does not appear that he ever provided such a recommendation or opinion. Moreover, while Dr. Munzer contends that the Medical Director of an affiliate center was the only person who could make referrals outside the IMC network, Suburban's contract with IMC required such determinations to be made by the Medical Director of IMC. The evidence established that, under Suburban's contract, once a patient was
referred to an IMC specialist for treatment, that specialist and IMC were responsible for determining whether to send the patient for additional consultation to a physician outside the IMC network.
At no point during the treatment of this Patient did the Respondent attempt to treat the Patient's known basal cell carcinoma.
The Patient was next seen by the Respondent on December 7, 1982. The Respondent noted "basal cell carcinoma left-forehead." There is no indication that the Respondent was attempting any treatment for this problem. The Patient was instructed to return in three months. The Patient was treated by the Respondent on February 1, 16, and March 7, 1983 for various ailments and complaints. There is no mention of the Patient's basal cell carcinoma in the medical records of these visits.
On April 1, 1983, the Respondent excised a skin lesion on T.G.'s left shoulder. The Respondent submitted the excised lesion for biopsy and the pathology report stated that there was no evidence of malignancy. There is no evidence in the medical records of the April 1, 1983 report that Respondent treated or discussed the basal cell carcinoma on the Patient's forehead.
The Patient returned to Suburban on April 4, 6, and May 2, 1983. She was seen by the Respondent during the April 4 and May 2, 1983 visits. The records of those three visits do not reflect any treatment or discussion of the Patient's forehead.
The Patient's next visit to Suburban was on May 24, 1983. During that visit, Respondent noted a "2mm keratotic skin lesion, mid forehead." That lesion was high on the forehead near the hairline. It was not in the scar area or adjacent to the previously diagnosed basal cell carcinoma. The Patient wanted the lesion removed for cosmetic reasons and it was the Respondent's opinion that the lesion was not clinically related to the Patient's previous problems. The Respondent felt that the appropriate treatment was to obliterate the lesion and watch for any recurrence rather than to biopsy such a small lesion which appeared benign. His assessment was "keratosis, possible basal cell carcinoma." He hyfercated the lesion and noted to follow it for healing. Because no biopsy was done on this lesion, there is no pathology report available to establish whether or not this lesion was a basal cell carcinoma. Some of the expert witnesses in this proceeding have testified that the Respondent's failure to biopsy this lesion falls below the standard of care expected of a reasonably prudent physician under similar circumstances.
However, that testimony presupposes that the lesions was contiguous or adjacent to the prior problem areas. Moreover, even Petitioner's experts admit that a primary care physician such as Respondent should be able to recognize and distinguish cosmetic skin problems from more questionable problems that need closer scrutiny. There is insufficient evidence to disregard Respondent's clinical diagnosis. Even though the Patient had a history of basal cell carcinoma, it was possible, indeed it is likely, that a patient with her history would develop unrelated cosmetic lesions.
At the time that the lesion was hyfercated, the Respondent once again advised the Patient that she needed to continue seeing the dermatologist regarding the previously diagnosed basal cell carcinoma.
Sometime during the Patient's visits in April or May of 1983, Respondent became aware that the Patient had not been returning to Dr. Munzer for follow-up care of the basal cell carcinoma of her forehead. Until this
time, the Respondent had assumed that the Patient was being treated by Dr. Munzer. The Patient reiterated her dislike for Dr. Munzer and also indicated that she did not like the Westchester facility. The Respondent once again explained her options under the HMO plan and advised her of the need to seek specialized care for her basal cell carcinoma. The Patient did not exercise any of the options explained to her and continued to be treated at Suburban through at least March of 1984. During that time, she was treated for various ailments, but no attempt was made to treat the basal cell carcinoma.
The Patient's next visit to Suburban took place on June 1, 1983. In addition to treating other unrelated complaints, the Respondent noted that the wound from the hyfercated forehead lesion was healing.
The Patient was also treated at Suburban on June 16 and 21, July 7 and 25, August 1 and 9 and October 17, 1983. The Respondent saw the Patient on all of those visits except for the June 16, July 25, and October 17 visits when she was treated by other Suburban employees. There is no indication in the medical records of these visits that the Patient's forehead and/or basal cell carcinoma were treated.
The Patient did not appear for scheduled appointments on June 6, July 18, and August 12, 1983.
During a visit on November 1, 1983, the Respondent noted a lesion on the Patient's right forehead. This lesion was not contiguous to the Patient's scar nor was it adjacent to the area biopsied by Dr. Munzer. The Respondent hyfercated this lesion.
As with the other lesions that Respondent hyfercated, the hyfercation was performed for cosmetic reasons and not because of any medical necessity. Each of the lesions that were hyfercated healed quickly and completely without any sign of regrowth. Because the lesions were hyfercated, biopsies were not possible. The absence of a pathology report precludes a conclusion that none of the hyfercated lesions were malignant. However, the Respondent's testimony that he only hyfercated lesions in areas where no previous problems had occurred and that appeared clinically benign is accepted. Therefore, there was no deviation from the standard of care expected of a reasonably prudent physician.
The Patient returned to Suburban on November 8, and 28, and December 14, 1983 and January 13 and 30, 1984. There is no indication that the Respondent saw the Patient on those visits. The Patient was seen by other physicians employed by Suburban. None of those physicians attempted to treat any skin problems and/or the forehead area of this Patient. There is no indication that any of these physicians noted any abnormality on the Patient's forehead.
During those visits when the Respondent saw the Patient, the Respondent would typically check her forehead to determine if there were any changes in the scar or the area that Dr. Munzer had biopsied. No changes were evident until the Patient's visit on February 6, 1984.
During the February 6, 1984 visit, the Respondent noticed a slight nodularity on the Patient's forehead. Respondent did not attempt to treat that bump. He again recommended to the Patient that she see the dermatologist. The only notation in the medical records was "follow slight nodularity-forehead-hx [history] basal cell CA." The Patient was instructed to return in two weeks.
The Patient returned to Suburban on February 7, 13, 27, and March 14, 1984. The Respondent only saw the patient on the February 13 visit. During these visits, she was treated for various unrelated matters and there is no notation regarding her basal cell carcinoma or the nodularity noted on February 6.
On March 7, 1984, T.G. transferred to Dr. C.N. House's IMC affiliated provider center.
On her first visit to Dr. House on April 6, 1984, T.G. was referred to a dermatologist, Dr. Kenneth Rosen, for a biopsy of her forehead. At the time of this visit, Dr. House did not have any of the Patient's prior records.
Dr. Rosen took biopsies from three areas of the Patient's forehead: one from the "right forehead", one from the "mid-forehead", and one from the "mid-forehead above left side." The pathology reports on all three sections indicated basal cell carcinoma that had been incompletely excised. The multiple sites of carcinoma indicate that the tumor was infiltrating.
Dr. Rosen advised Dr. House that he was not qualified to treat the Patient. He advised Dr. House that the Patient needed to be referred for Mohs chemosurgery. At the time, the only physician in Miami that Dr. House knew could perform that surgery was Dr. Menn. Mohs chemosurgery, now known as Mohs micrographic surgery, is the treatment of choice for recurrent basal cell carcinomas because of its high cure rate and conservation of healthy skin.
Dr. House's contract with IMC was a "risk" contract. Under that contract, the fees for treatment by specialists were directly deducted from his payment from IMC. Dr. House arranged his own network of specialists to whom he would refer patients. As indicated above, the Respondent's contractual arrangement with IMC was different and, at least during the time this Patient was being treated, Respondent only referred patients to the network developed by IMC.
Dr. House arranged for the Patient to be seen by Dr. Menn on May 15, 1984. In making this arrangement, Dr. House agreed to personally assume responsibility for Dr. Menn's fees.
T.G. was treated by Dr. Menn at the University of Miami with the Mohs Chemotherapy technique in four stages over a period of three days, May 29, 30, and June 1, 1984. The Mohs Surgery revealed an extensive basal cell carcinoma that covered most of the Patient's forehead area. Extensive skin was removed during the surgery and, in some areas, the surgery penetrated to the underlying bone. The surgery reports indicate that all of the area was one continuous basal cell carcinoma of the forehead, the eyelids and the nasal dorsum. Dr. Garland believes that the basal cell carcinoma treated by Mohs Chemosurgery in May of 1984 was the same tumor present and growing at the time that Dr. Menn was seeing this Patient in 1981 and 1982.
After the Mohs Surgery, the Patient was referred by Dr. House to Dr. Gary Zahler, an IMC Plastic Surgeon, for repair by skin grafting of the extensive wound to her forehead.
After the surgery, the Patient was followed by Dr. Menn until his death in 1985. Dr. Larry Garland, a colleague of Dr. Menn at the University of Miami and a dermatologist specializing in Mohs Chemosurgery and cutaneous oncology, continued following the Patient after Dr. Menn's death.
T.G. died from other causes in 1989. She had no recurrence of basal cell carcinoma following the Mohs surgery.
The evidence established that the Respondent is a capable and dedicated physician. There is no evidence that the Respondent manipulated the Patient for his own financial gain.
It is clear that at the time this case was initiated, there were some erroneous factual assumptions made by at least one expert retained by the Petitioner. Petitioner sent the Patient's medical records for review by Dr. Joseph Rosen. His opinion served as one of the grounds for the initial finding of probable cause in this case and the subsequent issuance of the Administrative Complaint. That opinion was premised on the erroneous assumption that the Respondent never referred the Patient to a dermatologist for treatment. At the hearing in this cause, Dr. Rosen amended his opinion and acknowledged that a referral did take place. However, he felt that the Respondent had still failed to meet the applicable standard of care because he failed to take adequate steps to ensure that the Patient's basal cell carcinoma was treated. This issue is addressed in the conclusions of law below.
CONCLUSIONS OF LAW
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 and Section 455.225, Florida Statutes.
Pursuant to Section 459.015(2), Florida statutes, the Board of Osteopathic Medical Examiners is empowered to revoke, suspend or otherwise discipline the license to practice osteopathic medicine of any osteopathic physician in the State of Florida found guilty of the acts enumerated in Section 459.015(1), Florida Statutes (1989).
In a disciplinary action such as this proceeding, the burden is upon the Board to establish the facts upon which its allegations of misconduct are based. The Petitioner must prove its allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Disciplinary action with respect to a professional license is limited to offenses or facts alleged in the Administrative Complaint. Sternberq v. Department of Professional Regulation, Board of Medical Examiners, 465 So.2d 1324, 1325 (Fla. 1st DCA 1985). The Administrative Complaint in this case charges Respondent with three violations. Count I alleges that Respondent violated Section 459.015(1)(r), Florida Statutes, by exercising influence on the patient or client in such a manner as to exploit the patient or client for financial gain. However, the evidence failed to establish by clear and convincing evidence that Respondent exploited the Patient T.G. for financial gain. The Patient was fully advised of her options under the Gold Plus Plan. She voluntarily chose to join and remain a member of the Plan. The Respondent referred her to the IMC dermatologist in accordance with her needs and the Plan requirements. There is simply no indication that Respondent was attempting to manipulate or exploit the Patient for financial gain.
Count II alleges that Respondent failed to keep written medical records justifying his course of treatment of the Patient. This allegation must be addressed with respect to several different aspects of the Respondent's treatment of the Patient.
The Respondent's medical records adequately describe the Patient's history, the' results of the examination of the Patient and her test results. They also provided an adequate description of the treatment rendered by the Respondent. Petitioner contends that the medical records were not adequate because they are not clear as to the exact location of the forehead lesions that were hyfercated by Respondent and because they do not explain why these tissues were not biopsied. In particular, Petitioner points to the medical records of the May 1983 visit where Respondent noted a mid-forehead lesion and stated that part of his plan of treatment was to rule out basal cell carcinoma. The evidence established that with respect to each of the lesions that were hyfercated by Respondent, the Respondent concluded that there was no clinical evidence of malignancy and that the lesion was not contiguous or adjacent to the prior problem areas. The Respondent decided to hyfercate the lesions and follow the Patient for recurrence. During the remaining time that Respondent treated the Patient, there was no recurrence of the hyfercated lesions. Under these circumstances, it cannot be concluded that Respondent's records did not justify his treatment of the Patient. In retrospect, it would have been useful for Respondent to more clearly document his clinical observations regarding the cosmetic lesions that were hyfercated. However, it is a practical impossibility to note every specific detail of every patient's condition. It is concluded that the records were not so inadequate in this regard as to constitute a violation of Section 459.015(1)(p).
Petitioner also contends that Respondent should have documented his repeated instructions to the Patient to return to the dermatologist. Without question, such documentation would have been advisable. To determine whether Respondent's records are inadequate, this omission must be viewed in the overall context of the Respondent's treatment of this Patient.
The troublesome deficiency in the Respondent's records is the failure to document a resolution or plan of treatment for the basal cell carcinoma that was incompletely excised by the biopsy performed by Dr. Munzer. As set forth above, the evidence established that the Respondent never attempted to treat the Patient's basal cell carcinoma. However, the Respondent's records insufficiently document how that problem was to be handled. While Respondent expected Dr. Munzer to treat this problem, there is no indication in the Respondent's medical records to confirm that Dr. Munzer had accepted this responsibility and/or what treatment he was rendering. This failure was exacerbated in the Spring of 1983 when Respondent learned the Patient had not been returning to Dr. Munzer and, therefore, the basal cell carcinoma was not being treated. Notwithstanding this discovery, there is no notation in the Respondent's records that any effort was being made to treat this unresolved problem. As a result, it is concluded that Respondent's records are incomplete and Respondent has violated Section 459.015(r). 2/
Count III alleges that Respondent committed gross or repeated malpractice or failed to practice osteopathic medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar osteopathic physician as being acceptable under similar conditions and circumstances.
In analyzing the care rendered by the Respondent in this case, it is important to consider the Patient's prior history and her own actions. The report prepared for Dr. Blinski in August of 1981 indicated that the carcinoma extended beyond the margins of the biopsy. While chemosurgery was considered at that time, Dr. Menn decided to follow the patient clinically and did so for
close to one year. During that time period, there was no evidence of recurrence of the carcinoma. Dr. Garland explained that refraining from chemosurgery until there was clinical evidence of the recurrence of a carcinoma that extended beyond the margins of a biopsy was an acceptable practice in the early 1980's.
While the current standard of care would probably call for the initiation of chemosurgery at an earlier date, the evidence did not conclusively establish that chemosurgery should have been initiated in this case at a date significantly earlier than it actually was. This is an important mitigating factor because one of Petitioner's grounds for seeking disciplinary action in this case is the contention that, due to Respondent's actions (or inactions) the Patient did not undergo chemosurgery until significantly later than she should have.
Petitioner relies on the Patient's massive wound as an indication that the tumor was continuously growing and, therefore, concludes that chemosurgery should have been initiated earlier. However, the evidence indicates that recurrent basal cell carcinoma can infiltrate and grow without any manifestations on the skin. Thus, it is possible that there was little or no clinical evidence available to alert a primary care physician that the tumor was growing. Respondent was not a dermatologist. Contrary to the allegations in the Administrative Complaint, he never attempted to treat the Patient's basal cell carcinoma. More importantly, he was never advised by the specialist to whom he referred the Patient that the Patient was in need of chemosurgery. To the extent that the Patient suffered any injury due to a delay in initiating chemosurgery, that injury must be attributed primarily to the failure of the IMC dermatologist to prepare and submit a plan for treating the Patient's basal cell carcinoma and the Patient's own failure to return to the dermatologist for additional follow-up as she was advised to do on numerous occasions by Respondent and his staff.
Petitioner suggests that Respondent should have followed a course similar to Dr. House and arranged to have referred the Patient to Dr. Menn for the Mohs surgery at his own expense. However, this contention fails to consider several important points. First, unlike Dr. House, the Respondent was never presented with a report from a dermatologist explaining the need for the Mohs surgery. In addition, the Respondent was never informed that the dermatologist to whom he referred the Patient was not qualified to handle the Patient's condition. In fact, there is no indication that Respondent had anything more than a passing familiarity with the chemosurgery. Finally, it should be noted that the Respondent's contract with IMC differed from Dr. House's contract. Dr. House had a "risk" contract pursuant to which he was directly responsible for the specialists who treated patients under his primary care. However, under the Respondent's contract, IMC paid the specialists who treated Medicare patients under the primary care of the Respondent. Thus, the responsibility for negotiating an arrangement with Dr. Menn would have been the duty of the treating specialist and IMC rather than the Respondent.
There is no question that this Patient should have been under the continuing care of a dermatologist from the time that Dr. Blinski completed the Limberg flap procedure in 1981. Her prior history and the pathology results from Dr. Blinski's procedure necessitated that she be continuously followed by a specialist. To his credit, Respondent recognized this need within the first month of his treatment of the Patient and promptly referred her to the IMC dermatologist. Unfortunately, after the referral, a breakdown in communications took place. Even if it is assumed that there was no clinical manifestation of the need for chemosurgery prior to February of 1984, the Patient should have been receiving follow-up care from a dermatologist. The evidence established
that Respondent advised the Patient of this need on several occasions. What is troubling, however, is the Respondent's failure to communicate with the specialist to whom he referred the Patient regarding the seriousness of her condition. In particular, there is no indication that Respondent attempted to contact Dr. Munzer in the spring of 1983 when he learned that the Patient had not been continuing her treatment with him. At that point, Respondent should have recognized that the previously diagnosed basal cell carcinoma may not have been treated and some additional follow-up was potentially necessary. At a minimum, the Respondent should have confirmed the Patient's condition with the specialist and investigated the need for additional treatment. His failure to do so falls below the standard of care expected of a reasonably prudent physician under similar conditions and circumstances and, therefore, constitutes a violation of Section 459.015(1)(y) Florida Statutes.
Without question, the HMO procedures and restrictions and the Patient's own lack of follow-up impacted upon the care that this Patient received. In this regard, it must be remembered that the Patient voluntarily joined the HMO and was aware of her right to disenroll and seek treatment elsewhere. Respondent was attempting to act within the restrictions of the IMC HMO system and was hampered by his own expectation that the Patient's condition was being appropriately followed by the specialist. It now appears that the care rendered by that specialist was distressingly inadequate. These factors should be considered in determining appropriate disciplinary action.
In its proposed recommended order, Petitioner has suggested a penalty including a $3,000 fine, a reprimand, a three-month suspension and two years of monitored probation. Petitioner's proposed penalty exceeds the disciplinary guidelines set forth in the Board's rule. Under Rule 21R-19.002, Florida Administrative Code, for a first offense of failure to keep written medical records, the Board may impose a fine up to $500.00 and issue a letter of concern or a reprimand. For a first violation of Section 459.015(1)(y), the Board may impose a fine of $1,000 issue a reprimand and/or impose probation conditioned on continuing education.
The aggravating or mitigating circumstances to be considered in imposing discipline' are set forth in Rule 21R-19.003, Florida Administrative Code. Among the factors to be considered are the number of times the licensee has been previously disciplined by the Board, the length of time the licensee has practiced, the pecuniary gains to the licensee, and other relevant mitigating or aggravating factors under the circumstances. The evidence in the this case established that the Respondent graduated from the Kirksville College of Osteopathic Medicine in 1962 and has never previously been disciplined. The evidence also established that Respondent is a concerned and competent physician who did not attempt to treat conditions outside his area of expertise or exploit the Patient for financial gain. The Patient was seen on a regular basis for treatment of a wide variety of complaints. She was fully advised of her options under the HMO plan and her need to seek follow-up care with a dermatologist. In view of these mitigating factors, it is concluded that the Petitioner's proposed penalty is to harsh.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Osteopathic Medical Examiners enter a Final
Order finding the Respondent, Jules G. Minkes not guilty of the allegations contained in Count I of the Administrative Complaint and dismissing that Count, but finding Respondent guilty of Count II and III, issuing a letter of concern and imposing a fine of $500.00.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 13th day of December, 1990.
J. STEPHEN MENTON 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 of Administrative Hearings this 13th day of December, 1990.
ENDNOTES
1/ Neither the patient nor her husband could specifically recall more than one visit to Dr. Munzer. However, neither the Patient nor her husband categorically denied that some additional visits took place. Indeed, the evidence suggests that some additional visits to Dr. Munzer took place. T.G. testified that she remembered visiting Dr. Munzer "about the middle of the time that [she] was seeing Respondent." T.G. was a patient of the Respondent for more than eighteen months from September of 1982 through at least February of 1984. The initial visit to Dr. Munzer took place in October of 1982, within a month after her initial visit to the Respondent. Thus, her testimony suggests that at least one additional visit took place around the spring of 1983. This conclusion is supported by the Patient's statements to the Respondent while he was treating her.
2/ In reaching this conclusion, the Hearing Officer is not unmindful that the lack of records from Dr. Munzer and the Westchester Clinic have potentially created a serious gap in the documentation of the Patient's treatment. However, Respondent's records should provide an independent confirmation as to how this Patient's problem was to be treated and/or resolved. The executed referral form is not enough, especially since there is no specific plan detailed by Dr. Munzer or any acknowledgment that he will continue to treat the Patient.
APPENDIX
Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties.
The Petitioner's Proposed Findings of Fact
Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or
Reason for Rejection.
Adopted in substance in Findings of Fact 1.
Adopted in substance in Findings of Fact 2.
Adopted in substance in Findings of Fact 4.
Adopted in substance in Findings of Fact 4.
Adopted in substance in Findings of Fact 10.
Subordinate to Findings of Fact 6, 7, and 8
Subordinate to Findings of Fact 6, 7, 8 and 9.
Rejected as vague and overly broad. This issue is addressed in Findings of Fact 62.
Adopted in relevant part in Findings of Fact 10
Adopted in substance in Findings of Fact 12
Adopted in substance in Findings of Fact 13 15
Adopted in substance in Findings of Fact 16
Adopted in substance in Findings of Fact 16.
Adopted in substance in Findings of Fact 16 and 18.
Adopted in substance in Findings of Fact 15
Adopted in substance in Findings of Fact 20
Adopted in substance in Findings of Fact 22.
Adopted in substance in Findings of Fact 24.
Adopted in substance in Findings of Fact 23 and 25.
Adopted in substance in Findings of Fact 26.
Adopted in substance in Findings of Fact 27.
Adopted in substance in Findings of Fact 28 and 29.
Adopted in substance in Findings of Fact 29.
Adopted in substance in Findings of Fact 29.
Rejected as vague and overly broad.
Adopted in substance in Findings of Fact 30.
Adopted in substance in Findings of Fact 31.
Adopted in substance in Findings of Fact 32.
Rejected as irrelevant.
Adopted in substance in Findings of Fact 33.
Adopted in substance in Findings of Fact 17.
Subordinate to Findings of Fact 38.
Rejected as irrelevant.
Subordinate to Findings of Fact 38 and 39.
Subordinate to Findings of Fact 39.
Subordinate to Findings of Fact 38.
Subordinate to Findings of Fact 37.
Subordinate to Findings of Fact 37 and 39.
Subordinate to Findings of Fact 26.
Adopted in substance in Findings of Fact 34.
Adopted in substance in Findings of Fact 35.
Adopted in substance in Findings of Fact 41.
Adopted in substance in Findings of Fact 41.
Adopted in substance in Findings of Fact 42.
Adopted in substance in Findings of Fact 43.
Subordinate to Findings of Fact 44.
Adopted in substance in Findings of Fact 47.
Adopted in substance in Findings of Fact 48.
Adopted in substance in Findings of Fact 51.
Adopted in substance in Findings of Fact 54.
Adopted in substance in Findings of Fact 55.
Adopted in substance in Findings of Fact 56.
Subordinate to Findings of Fact 35 and 45.
Subordinate to Findings of Fact 35.
Rejected as not established by competent substantial evidence.
Adopted in substance in Findings of Fact 57.
Adopted in substance in Findings of Fact 57.
Adopted in substance in Findings of Fact 58.
Adopted in substance in Findings of Fact 58.
Adopted in substance in Findings of Fact 59.
Adopted in substance in Findings of Fact 61.
Adopted in substance in Findings of Fact 62.
Rejected as irrelevant. In addition, it should be noted that this photograph was apparently taken shortly after biopsies were completed and, therefore, the picture may not present an accurate representation of the patient's condition.
Adopted in substance in Findings of Fact 62.
Adopted in substance in Findings of Fact 62.
Adopted in substance in Findings of Fact 63.
Adopted in substance in Findings of Fact 64 and 65.
Subordinate to Findings of Fact 35-38 and to the conclusions of law contained in this Recommended Order.
Rejected as not established by competent substantial evidence.
This proposal is largely argument on the evidence. The subject matter is addressed in paragraphs 6, 7 and 8 of the Conclusions of Law.
This subject matter is addressed in paragraphs 6, 7 and 8 of the Conclusions of Law.
Addressed in paragraphs 9-14 of the Conclusions of Law.
The Respondent's Proposed Findings of Fact
The first sentence is adopted in paragraphs 23, 24, 26-30 and 34-55. The second and third sentences are adopted in substance in Findings of Fact 5-10.
2. Adopted | in | substance | in | Findings | of | Fact | 26. | |
3. Adopted | in | substance | in | Findings | of | Fact | 30. | |
4. Adopted | in | substance | in | Findings | of | Fact | 32. | |
5. Adopted | in | substance | in | Findings | of | Fact | 33. | |
6. Adopted | in | substance | in | Findings | of | Fact | 35. | |
7. Adopted | in | substance | in | Findings | of | Fact | 46. | |
8. Adopted | in | substance | in | Findings | of | Fact | 46. | |
9. Adopted | in | substance | in | Findings | of | Fact | 54 and | 56. |
10. Adopted | in | substance | in | Findings | of | Fact | 40. | |
11. Adopted | in | substance | in | Findings | of | Fact | 42, 44 | and 51. |
12. Adopted | in | substance | in | Findings | of | Fact | 44. | |
13. Adopted | in | Substance | in | Findings | of | Fact | 44. | |
14. Adopted | in | substance | in | Findings | of | Fact | 44, 45 | and 51. |
Adopted in substance in Findings of Fact 35 and 45.
Adopted in substance in Findings of Fact 40.
Adopted in substance in Findings of Fact 66.
COPIES FURNISHED:
Mary B. Radkins, Esquire Department of Professional Regulation
1940 North Monroe Street Suite 60
Tallahassee, Florida 32399-0792
Daniel C. Minkes, Esquire 17615 S.W. 97 Avenue
Miami, Florida 33157
Rod Presnell Executive Director
Department of Professional Regulation
1940 North Monroe Street Suite 60
Tallahassee, Florida 32399-0792
Kenneth E. Easley General Counsel
Department of Professional Regulation
1940 North Monroe Street Suite 60
Tallahassee, Florida 32399-0792
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order, should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Dec. 13, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 13, 1990 | Recommended Order | Respondent was primary care "gatekeeper" for HMO; referred patient to dermatologist in network for biopsy of skin lesion; Respondent negligent in failing to follow up positive biopsy |
