STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6331

)

SIMA RUDOVA, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on March 19, 1991, in Tampa, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Richard A. Grumberg

Senior Medical Attorney Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Grover C. Freeman

4600 West Cypress, Suite 500

Tampa, Florida 33607 STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint dated September 5, 1990; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on September 5, 1990, when the Department of Professional Regulation (Department) filed an administrative complaint against the Respondent, Sima Rudova, M.D., and alleged two violations of Chapter 458, Florida Statutes. More specifically, the Department charged Respondent with being guilty of paying or receiving a commission, bonus, kickback, or rebate, or engaging in a split-fee arrangement with a physician, organization, agency or person for patients referred to providers of health care goods and services, including, but not limited to, hospitals, nursing homes, clinical laboratories, ambulatory surgical centers, or pharmacies in violation of Section 458.331(1)(i), Florida Statutes. Additionally, the Department alleged the

Respondent had exercised influence on a patient or client in such a manner as to exploit the patient or client for financial gain in violation of Section 458.331(1)(n), Florida Statutes. Respondent filed a request for formal hearing and the matter was forwarded to the Division of Administrative Hearings for such proceedings on October 8, 1990.

At the hearing, the Department presented the testimony of Sima Rudova, the deposition testimony of Beth Christie (marked DPR Ex. #1), and exhibits marked DPR Ex. #2 and #3 which were admitted into evidence. The Respondent testified in her own behalf and offered exhibits numbered 1 through 5 which were also admitted into evidence.

The transcript of the hearing was filed with the Division of Administrative Hearings on April 8, 1991. The parties filed proposed recommended orders which have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

Based upon the stipulations of the parties, the testimony of the witness, and the documentary evidence received at the hearing, the following findings of fact are made:

1. The Department is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 458, Florida Statutes.

   
   

2. The Respondent is, and has been at all times material to this case, a licensed physician in the State of Florida, license no. ME 0045691.

   
   

3. The Respondent was born in the U.S.S.R. in 1926 and graduated with honors from the Moscow Medical Institute in 1951. She also received a PhD degree in medical science and obtained the equivalent of board certification as a surgeon oncologist in that country. While employed in the U.S.S.R., Respondent worked for the state.

   
   

4. In 1976, Respondent, who is Jewish, immigrated to Israel where she received that country's board certification in surgery. During her residence in Israel, the Respondent was employed as a surgeon in a state-sponsored clinic.

   
   

5. From Israel, the Respondent came to the United States in 1983. Respondent passed the ECFMG and the FLEX examinations in 1984. Subsequently, she became licensed in Florida.

   
   

6. Currently, Respondent is neither board certified nor board eligible. Respondent attributes her foreign education and age as the primary reasons she has not achieved certification in this country.

   
   

7. Because she is not board certified or eligible for certification, Respondent has sought employment where those criteria are not mandatory. Consequently, since becoming licensed in Florida, she has worked almost exclusively at clinics practicing general medicine.

   
   

8. In November, 1987, Respondent began employment with Doctor's Diagnostic and Medical Centers (DDMC). Respondent was one of several doctors employed by DDMC.

9. At all times material to this case, DDMC operated walk-in clinics in New Port Richey and Clearwater, Florida.

   
   

10. At the outset of her employment with DDMC, Respondent worked only part-time for approximately 16 to 18 hours per week. Her hours increased over time, and, in July or August of 1988, Respondent went to a full-time schedule.

    
    

11. Her initial agreement with DDMC provided that Respondent would be paid based upon the rate of $30.00 per hour worked.

    
    

12. At that time, DDMC was involved in a program of providing free Doppler examinations for persons requesting that evaluation.

    
    

13. Respondent was aware that DDMC engaged in advertisements to solicit patients.

    
    

14. All management or administrative decisions such as advertising, billing, or scheduling employees at DDMC were made by a Dr. Neese, the owner of the facilities, or his designee. Respondent did not participate in management decisions.

    
    

15. At some early point in her employment at DDMC, Respondent agreed to provide additional services for the company which had formerly been performed by a technician. More specifically, Respondent agreed to interpret Doppler test results.

    
    

16. DDMC provided Doppler testing as part of its preventative medicine program. The purpose of the program was to screen patients for potential further treatment or testing. Doppler, cholesterol, and triglyceride testing are all appropriate preventative medicine approaches to determine a patient's potential need for services. According to Respondent, preventative medicine assists in early detection of potentially harmful illnesses.

    
    

17. Doppler tests measure or indicate circulation and cardiac function. In the event a Doppler test evidences some abnormality, further testing such as ultrasound or echocardiogram may be suggested as appropriate follow up.

    
    

18. While assigned to the New Port Richey clinic, Respondent provided many Doppler interpretations. For each Doppler test interpreted where the patient returned to DDMC for additional testing, Respondent was to receive $60.00.

    
    

19. After reviewing the Doppler, some patients would be examined by Respondent. Respondent would perform a limited examination and take a medical history. If the testing and examination suggested some abnormality, Respondent would advise the patient as to the options available.

    
    

20. In the event the Doppler showed no problem, Respondent would not recommend additional testing.

    
    

21. Where the patient's Doppler results and additional information suggested a medical basis for additional testing, Respondent advised patients that they could confer with their regular physician, have the testing elsewhere if they would like, or could have the testing done at DDMC.

22. At Dr. Neese's direction Respondent kept a list of the patients for whom she had interpreted the Doppler results and for whom additional testing was to be performed at DDMC. Respondent did not confer with all of the patients on the list.

    
    

23. According to Respondent some patients on her list did receive additional testing at DDMC. She had presumed she would be compensated in accordance with her agreement; however, Respondent did not receive compensation for that work.

    
    

24. For the period November 11, 1987 to December 31, 1987, Respondent received $5,685.00 in compensation from DDMC.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

26. The Department bears the burden of proof in these proceedings and must establish the allegations against the Respondent by clear and convincing evidence.

    
    

27. Section 458.331, Florida Statutes, provides, in pertinent part:

    
    

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

       * * *

       1. Paying or receiving any commission, bonus, kickback, or rebate, or engaging in any split-fee arrangement in any form

          whatsoever with a physician, organization, agency, or person, either directly or indirectly, for patients referred to providers of health care goods and services, including, but not limited to, hospitals, nursing homes, clinical laboratories, ambulatory surgical

          centers, or pharmacies. The provisions of this paragraph shall not be construed to prevent a physician from receiving a fee for professional consultation services.

          * * *

          (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.

          * * *

    2. When the board finds any person guilty of any of the grounds set forth in subsection (1), including conduct that would constitute a substantial violation of

       subsection (1) which occurred prior to licensure, it may enter an order imposing one or more of the following penalties:

       1. Refusal to certify, or certification with restrictions, to the department an application for licensure, certification, or registration.

       2. Revocation or suspension of a license.

       3. Restriction of practice.

       4. Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.

       5. Issuance of a reprimand.

       6. Placement of the physician on probation for a period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the physician to submit to treatment, to attend continuing education courses, to submit to reexamination, or to work under the supervision of another physician.

       7. Issuance of a letter of concern.

       8. Corrective action.

       9. Refund of fees billed to and collected from the patient.

       
       

28. Rule 21M-20.001, Florida Administrative Code, sets forth the penalty guidelines when a violation of Chapter 458, Florida Statutes has been established. Regarding the violations alleged in this case, the rule recommends the following guidelines:

    
    

    RECOMMENDED RANGE

    VIOLATION OF PENALTY

    
    

    (i) Kickbacks or split (i) From six (6) fee arrangements. months suspension (458.331(1)(i), F.S.) to revocation or

    denial, and an administrative fine from

    $250.00 to

    $5,000.00.

    * * *

    (n) Exercising influence (n) From

    on patient for financial probation to gain. denial or two (2)

    (458.331(1)(n), F.S.) years suspension,

    and an admini- strative fine from $250.00 to

    $5,000.00.

    
    

29. In this case, the Department has established by clear and convincing evidence that the Respondent entered into a financial arrangement in violation of Section 458.331(1)(i), Florida Statutes. The Respondent engaged in a split fee arrangement and, while it is not concluded that she received compensation for that improper agreement, it has been established that she agreed to perform

    services on that basis. Clearly, she expected compensation based upon the number of Doppler tests interpreted where the patient interpreted returned to DDMC for additional testing. That she did not receive compensation as expected does not excuse her conduct of engaging in the agreement.

    
    

30. With regard to its claim that the Respondent exercised influence on patients to exploit the patient for her financial gain, the Department has failed to meet its burden in that regard. There is insufficient evidence in this cause to establish that any of the patients Respondent personally examined returned for further testing. The evidence only shows that some of the patients for whom Respondent had interpreted the Doppler returned for testing. Whether Respondent did the follow up examination or another physician reported the Doppler results and did the follow up review with the patient is not known. It cannot be concluded that Respondent exercised influence on a patient when it has not been shown Respondent examined or conferred with the patient.

    
    

31. In rendering the recommendation in this cause, the Respondent's past work history and demeanor at the hearing have been considered. Based on the record in this matter it would appear Respondent readily cooperated with the investigation of this case, gave sworn statements regarding the operations at DDMC, and, in fact, terminated her employment with that facility when she discovered they had, without authorization, used her signature, or name, on medical records. Additionally, no suggestion has been made that any of the Doppler interpretations performed by Respondent were incorrect or that Respondent falsified testing to encourage unnecessary examinations. Respondent was not a part of the DDMC management and had no control over that facility's policies and practices.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Department of Professional Regulation, Board of Medicine, enter a final order finding the Respondent guilty of violating Section 458.331(1)(i), Florida Statutes, placing the Respondent on probation for a period of two years, and imposing an administrative fine in the amount of $2500.00.

DONE and ENTERED this 24th day of May, 1991, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1991.

APPENDIX TO CASE NO. 90-6331

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT:

1. Paragraphs 1 through 4 are accepted.

2. With regard to paragraph 5, it is accepted that an individual known to Respondent as Dr. Neese hired her for work at the DDMC and controlled the administration or management of that facility. Otherwise, rejected as irrelevant.

3. Paragraph 6 is accepted as to clinics at New Port Richey and Clearwater which would be the only locations material to this case.

4. With regard to paragraph 7, with the deletion of the words "independent contractor" which are rejected as a conclusion of law, it is accepted.

5. Paragraphs 8 and 9 are accepted.

6. With the deletion of the word "scheme" which is rejected as argumentative, paragraph 10 is accepted.

7. Paragraph 11 is rejected as contrary to the weight of the evidence.

8. With the deletion of the word "scheme" (see comment above), paragraph 12 is accepted.

9. Paragraphs 13 and 14 are rejected as contrary to the weight of the credible evidence.

10. Paragraph 15 is accepted.

11. Paragraphs 16 and 17 are rejected as argumentative or contrary to the weight of credible evidence.

12. Paragraph 18 is accepted.

13. Paragraphs 19 through 21 are rejected as irrelevant or contrary to the weight of the credible evidence.

14. Paragraphs 22 and 23 are accepted.

15. Paragraphs 24 through 30 are rejected as irrelevant, speculative, or contrary to the weight of credible evidence.

16. Paragraph 31 is accepted.

17. Paragraphs 32 and 33 are rejected as argumentative or contrary to the weight of the credible evidence.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

1. Paragraphs 1 through 5 are accepted.

2. With regard to paragraphs 6 and 7, it is accepted that those paragraphs state Respondent's perception of her situation. This record does not establish, in fact, the basis for her failure to obtain certification, eligibility or hospital privileges.

3. Paragraphs 8 through 10 are accepted.

4. The first sentence of paragraph 11 is rejected as a conclusion of law or irrelevant. The balance of the paragraph is accepted.

5. Paragraphs 12 through 15 are accepted.

6. With the deletion of the last sentence which is rejected as contrary to the weight of the evidence, paragraph 16 is accepted. Respondent was, in fact, aware that some of the patients for whom she had interpreted the Doppler did return to the clinic for additional testing.

7. The first sentence of paragraph 17 is accepted. The remainder of the paragraph is rejected as comment, argument, or contrary to the weight of the evidence. It is accepted that no patient records were admitted into evidence.

COPIES TO:

Richard A. Grumberg Sr. Medical Atty.

DPR

1940 N. Monroe St., Ste. 60

Tallahassee, FL 32399-0792

Grover C. Freeman

4600 West Cypress, Ste. 500

Tampa, FL 33607

Dorothy Faircloth Executive Director DPR

1940 N. Monroe St., Ste. 60

Tallahassee, FL 32399-0792

Jack McRay General Counsel DPR

1940 N. Monroe St., Ste. 60

Tallahassee, FL 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.

Docket for Case No: 90-006331

Orders for Case No: 90-006331