STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0475

)

MANUEL LUNA, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above styled case on May 7, 1991, in Fort Lauderdale, Florida.

APPEARANCE

For Petitioner: Francesca Small, Senior Attorney

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Neil Garfield, Esquire

3500 North State Road No. 7 Fort Lauderdale, Florida 33319

STATEMENT OF THE ISSUES

The issues for determination in this proceeding are whether Respondent failed to practice medicine with that level of care, skill, and treatment of two patients which is recognized by a reasonably prudent similar physician as being acceptable under similar circumstances and whether Respondent failed to keep written medical records justifying the course of treatment of the two patients.

PRELIMINARY STATEMENT

Petitioner filed a four count Administrative Complaint against Respondent on November 9, 1990. Respondent requested a formal hearing on December 10, 1990. The matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on January 21, 1991, and assigned to Hearing Officer Michael M. Parrish on January 29, 1991. A formal hearing was scheduled for May 7, 1991, pursuant to the Notice of Hearing issued on February 13, 1991. The matter was transferred to the undersigned on May 6, 1991.

At the formal hearing, Petitioner presented the testimony of Lee Fischer,

M.D. and Stanley Weiss, D.O., by deposition. Petitioner offered five exhibits for admission in evidence. Petitioner's Exhibits 1-5 were admitted in evidence without objection. The deposition of Dr. Weiss was admitted as a late filed

exhibit which was filed on May 31, 1991. Respondent testified in his own behalf.

A transcript of the formal hearing was filed on May 13, 1991. Proposed findings of fact and conclusions of law were timely filed by Respondent on June 19, 1991, and by Petitioner on June 21, 1991. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency statutorily charged with the duty and responsibility for enforcing applicable statutes and administrative rules against physicians licensed by the State of Florida. Respondent is, and has been at all times material hereto, a physician licensed by the state, having been issued license number ME 0032342.

   
   

   Patient A.R.

   
   

2. Patient A.R. is an elderly female who was approximately 80 years old when Respondent first examined her on January 8, 1987. Patient's chief complaint was a 10 year history of hypertension. Respondent diagnosed patient

   A.R. as suffering from hypertension and possible angina pectoris.

   
   

3. The patient was using a pacemaker at the time she first saw Respondent. Respondent performed an EKG on patient A.R. on January 8, 1987, and determined that the patient's pacemaker was malfunctioning.

   
   

4. Respondent performed an EKG on patient A.R. on June 14, 1987. Respondent misinterpreted the EKG as indicating that patient A.R. had a sinus rhythm, frequent ventricular premature complexes, marked rhythm irregularity, and a heart rate of 65 beats per minute. Respondent noted his diagnosis in patient A.R.'s chart. The EKG actually indicated that patient A.R. was suffering from a second degree heart block and that her heart rate was below 50 beats per minute.

   
   

5. A second degree heart block is a condition in which the area in the heart which initiates the heart beat functions abnormally. In effect, the electricity is blocked from going into the heart and starting the heart beat. The patient's pulse rate is lower than it should be. Patient A.R. was suffering from a second degree heart block on June 14, 1987, and was not properly diagnosed by Respondent. 1/

   
   

6. Patient A.R. went to a hospital emergency room on June 19, 1987, with a very low pulse rate. She was admitted to the hospital and had a permanent pacemaker implanted.

   
   

7. The standard treatment for a heart block is a pacemaker. There may be insufficient blood supplied to the brain of a patient who suffers from a heart block. If left untreated, a patient may experience fainting, cardiac arrhythmia, and death.

   
   

8. Respondent failed to practice medicine with that level of care, skill and treatment of patient A.R. which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. After examining patient A.R. on June 14, 1987, and on June 16, 1987, Respondent failed to correctly interpret the EKG results on June 14, 1987, and failed to properly diagnose patient A.R.

9. The written medical records that Respondent maintained on patient A.R. failed to justify the course of treatment for patient A.R. The records contained an incorrect reading of the EKG given on June 14, 1987, and failed to justify the course of treatment followed for patient A.R.

   
   

   Patient C. H.

   
   

10. Patient C. H. is an elderly female who was 65 years old when she was first seen by Respondent on October 23, 1985. Respondent noted that patient

    C.H. had occasional rectal bleeding and chronic anemia. Respondent noted in the medical records that patient C.H. should have a rectum and colon study performed. However, no tests were ever conducted to determine the source of bleeding or to test the patient's stool for blood.

    
    

11. On April 7, 1987, patient C.H. was examined by Respondent complaining of anal bleeding for 2 or 3 days. Her hemoglobin count was markedly low. On May 7, 1987, patient C.H. was examined by Respondent and stated that her anal bleeding decreased four days after her office visit on April 7th. On August 3, 1987, patient C.H. was hospitalized and found to be anemic.

    
    

12. Respondent failed to practice medicine with that level of care, skill and treatment of patient C.H. which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Respondent failed to perform any diagnostic tests or studies on patient C.H. between October 23, 1985, and August 3, 1987, to determine the source of her anal bleeding or to test her stool for blood. Respondent also failed to refer patient C.H. to a specialist for a gastrointestinal work-up.

    
    

13. The written medical records that Respondent maintained on patient C.H. failed to justify the course of treatment for patient C.H. The records failed to include a justification for the course of treatment, the failure to conduct tests, or the failure to refer the patient to a specialist.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding, pursuant to Section 120.57, Florida Statutes. The parties were duly noticed for the formal hearing.

    
    

15. Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and what penalty, if any, should be imposed. Ferris v. Turlington, 510 So.2d 297 (Fla. 1987).

    
    

16. Petitioner satisfied its burden of proof. Petitioner showed by clear and convincing evidence that Respondent failed to practice medicine with that level of care, skill and treatment of patients A.R. and C.H. which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Section 458.331(1)(t), Florida Statutes. Petitioner also showed by clear and convincing evidence that Respondent failed to keep written medical records justifying the course of treatment for patients

    A.R. and C.H. Section 458.331(1)(m).

    
    

17. Section 458.331(2), Florida Statutes, and Florida Administrative Code Rule 21M-20.001 authorize the Board of Medicine (the "Board") to take disciplinary action against a licensee who has been found guilty of violating

    any provision in Section 458.331(1). Such disciplinary action may include a reprimand, probation, administrative fine, restriction of practice, or license suspension or revocation.

    
    

18. Florida Administrative Code Rule 21M-20.001(2)(t) requires a minimum penalty of two years probation and an administrative fine of $250 to be imposed for a violation of Section 458.331(1)(t), Florida Statutes. The maximum penalty for such a violation is revocation of Respondent's license and imposition of an administrative fine not to exceed $5,000. Florida Administrative Code Rule 21M- 20.001(2)(m) requires a minimum penalty of a reprimand and an administrative fine of $250 to be imposed for a violation of Section 458.331(1)(m). The maximum penalty for such a violation is two years suspension followed by probation and the imposition of an administrative fine not to exceed $5,000.

    
    

19. The Board is authorized by Section 458.331(5), Florida Statutes, and Florida Administrative Code Rule 21M-20.001(3) to deviate from the disciplinary guidelines otherwise prescribed by rule upon consideration of aggravating and mitigating circumstances. Mitigating circumstances in this proceeding include the absence of evidence of prior disciplinary history or pecuniary gain inuring to the Respondent. Aggravating circumstances include evidence that two patients were exposed to severe potential injury as a result of the medical care provided to them by Respondent.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding that Respondent is

guilty of violating Sections 458.331(1)(m) and (t), Florida Statutes, imposing

an administrative fine of $3,000 against Respondent, and placing Respondent on probation for two years subject to such reasonable terms and conditions as the Board may impose.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of September, 1991.

DANIEL MANRY

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 10th day of September, 1991.

ENDNOTE

1/ Respondent examined patient A.R. on June 16, 1987, at 10:00 p.m. in an emergency status. Patient A.R. was in a hypertensive crisis with a blood pressure of 220/122. Patient A.R.'s blood pressure was extremely high for her. Respondent treated patient A.R. with Lasix, a rapid acting diuretic, and sent

her home. This was a hypertensive crisis which was correctly diagnosed and treated by Respondent. It is irrelevant and immaterial to the issue of Respondent's diagnosis and treatment of patient A.R. for a second degree heart block.

APPENDIX

Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. No reference is made to unnumbered paragraphs.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. No reference is made to unnumbered paragraphs.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

immaterial

1. Rejected as recited testimony

2. Rejected as legal argument.

3. Rejected as irrelevant and immaterial.

12-13 Rejected as recited testimony.

1. Accepted in Finding 8

2. Rejected as conlcusion of law

16-18 Rejected as recited testimony and legal argument.

1. Rejected for the reasons stated

   in Findings 5-7

2. Rejected as legal argument

21-22 Rejected as irrelevant and immaterial

23-27 Rejected for the reasons stated

in Findings 10-12

COPIES FURNISHED:

Dorothy Faircloth Executive Director Department of Professional

Regulation Board of Medicine Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Jack McRay General Counsel

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Francesca Small, Esquire Department of Professional

Regulation Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Neil Garfield, Esquire

500 North State Road 7 Suite 333

Ft. Lauderdale, Florida 33319

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: 91-000475

Orders for Case No: 91-000475