STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-6793

)

JOSHUA L. STERNBERG, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings, on April 2, 1992, at Ft. Lauderdale, Florida.

Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: Richard A. Grumberg, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Joseph Harrison, Esquire

2500 N. Military Trail, Suite 275 Boca Raton, Florida 33431

STATEMENT OF THE ISSUES

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of paragraphs (m), (n), and (t) of Section 458.331(1), Florida Statutes (1986 Supp.). The violations charged relate to allegations that the Respondent failed to keep medical records justifying the course of treatment of a patient, that he exploited the patient for financial gain, and that in his treatment of the patient he failed to practice medicine with the appropriate level of care, skill, and treatment.

PRELIMINARY STATEMENT

Shortly before the formal hearing, the parties entered into a Joint Prehearing Stipulation which, among other things, provided that the following facts were admitted: "Paragraphs 1, 2, and 3 of the Administrative Complaint as well as any and all facts which appear in the medical records of patient O.S. as kept by Respondent, Joshua L. Sternberg." At the commencement of the formal hearing, the parties also stipulated to the deletion of several allegations in the Administrative Complaint. The specific deletions stipulated to by the parties are as follows:

At Paragraph 14: Delete the entire paragraph.

At Paragraph 16: Delete the words following the word

"condition."

At Paragraph 18: Delete the entire paragraph. At Paragraph 19: Delete the entire paragraph. At Paragraph 20: Delete the entire paragraph.

At Paragraph 29: Delete the last ten words of the

paragraph.

At the final hearing the parties offered a Joint Exhibit consisting of the medical records of Patient O.S. Petitioner offered three additional exhibits, all of which were received in evidence. The Respondent also offered three additional exhibits, all of which were received in evidence. The Petitioner presented the live testimony of two medical doctors, Dr. Mark David Kaye and Dr. Alexander Ruggieri. The Respondent presented the live testimony of two witnesses, Dr. David Allen Epstein and Stephen Marc Slepin, Esquire, and also testified on his own behalf. At the conclusion of the formal hearing the parties were allowed 45 days from the filing of the transcript within which to file their proposed recommended orders. The transcript of the hearing was filed with the Hearing Officer on April 22, 1992. By order issued on June 9, 1992, the deadline for filing proposed recommended orders was extended for all parties to July 3, 1992. Thereafter, all parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. Specific rulings on all proposed findings of fact submitted by all parties are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner 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. Respondent is and has been at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0013446. Respondent's last known address is Medical Service Center, 16751 North East 6th Avenue, North Miami Beach, Florida 33162.

   
   

3. From on or about July 25, 1986, to on or about November 19, 1986, Respondent provided medical care and treatment to Patient # 1, who is also referred to herein as "Patient O.S."

   
   

4. On July 25, 1986, Patient O.S., who was at that time a 39-year-old man, was involved in an automobile accident. Shortly after the accident, Patient

   O.S. went to the Respondent's office for medical attention related to the automobile accident. During his first visit to the Respondent's office, Patient

   O.S. told the Respondent that he had passed out during the automobile accident. During that visit Patient O.S. complained of pain in the left shoulder, pain in the neck, and pain in the back of the head. He also complained of a headache in the back of the head.

   
   

5. The Respondent's initial physical examination of Patient O.S. revealed the following: 1/

   
   

   [O]n physical examination, the left shoulder was swollen compared to the right and felt warm to touch and was tender. There was no

   deformity but pain was produced on motion of the left shoulder. There was bilateral 3+ cervical paravertebral muscle spasms (on a scale of from 0-4+). Lateral rotation of the neck was 90 degrees to the left but was limited to 60 degrees to the right.

   
   

6. At the time of the Respondent's initial evaluation of Patient O.S., the Respondent did not order or take any x-rays of Patient O.S.'s skull, cervical spine, or left shoulder. The Respondent's initial plan for the medical care of Patient O.S. included, but was not limited to, scheduling Patient O.S. for bone and joint scans of the shoulders, cervical spine, and head.

   
   

7. At the time of the Respondent's initial evaluation of the Patient O.S., he conducted an adequate examination of the patient. 2/ The Respondent did not, however, make an adequate medical record of his examination of Patient O.S., in that he failed to include any useful information about the extent of the patient's neurological condition. Specifically, the medical records fail to contain a description of the patient's motor reflexes and motor strength.

   
   

8. The Respondent's medical records of his treatment of Patient O.S. also fail to contain important historical information relative to Patient O.S.'s loss of consciousness during the automobile accident.

   
   

9. On or about July 29, 1986, at the Respondent's office, the Respondent took x-rays of Patient O.S.'s shoulders.

   
   

10. On or about July 30, 1986, at the Respondent's office, the Respondent performed bone and joint scans and color computer image analysis of the scans, of Patient O.S.'s cervical spine, right shoulder, and left shoulder. Abnormal uptake of the radionuclide not seen easily in the conventional images was found in the cervical and thoracic spine and left shoulder. This information was neither necessary nor useful in the diagnosis or treatment of the patient.

    
    

11. On or about July 31, 1986, at the Respondent's office, the Respondent performed a procedure on Patient O.S. which is described in the Respondent's records as "Echoflow Doppler Continuous Wave Imaging of the carotid arteries." The purpose of this procedure was to evaluate the integrity of the carotid artery system. Blood flow in the patient's carotid artery system was found to be normal.

    
    

12. On or about September 3, 1986, at the Respondent's office, the Respondent repeated the procedure on Patient O.S. which is described in the Respondent's records as "Echoflow Doppler Continuous Wave Imaging of the carotid arteries." The purpose of this procedure was to evaluate the integrity of the carotid artery system. Blood flow in the patient's carotid artery system was again found to be normal.

    
    

13. On or about November 19, 1986, at the Respondent's office, the Respondent performed repeat bone and joint scans and color computer image analysis of the scans, with essentially the same results as the bone scans that were done on Patient O.S. on July 30, 1986.

    
    

14. On or about November 19, 1986, the Respondent discharged Patient O.S. from the Respondent's care, stating that as of that date Patient O.S. had reached maximum medical improvement for problems related to the patient's automobile accident.

15. The standard of medical care applicable in this proceeding is "that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances." See Section 458.331(1)(t), Florida Statutes (1986 Supp.).

    
    

16. The Respondent failed to practice medicine with the level of care, skill, and treatment described above by failing to order or take x-rays of Patient O.S. during the patient's initial visit. Under conditions and circumstances similar to those presented by Patient O.S., a reasonably prudent primary care physician, at the time of the patient's first visit, at a minimum would have taken ordinary x-rays of the patient's cervical spine (AP and lateral views), as well as either a skull x-ray or a CT scan of the brain. In a patient with the signs, symptoms, and history presented by Patient O.S., these minimum

    x-rays are necessary to rule out the possibility of any serious injury to the cervical spine or to the skull or brain. The Respondent's failure at the first visit to take ordinary x-rays of the Patient O.S.'s cervical spine and to take a skull x-ray or a CT scan of his brain, was a failure to practice medicine with the required level of care, skill, and treatment.

    
    

17. The Respondent failed to practice medicine with the required level of care, skill, and treatment by performing bone and joint scans and related color computer image analysis of the scans of Patient O.S.'s cervical spine, right shoulder, and left shoulder on two separate occasions. A reasonably prudent primary care physician under similar conditions and circumstances would not have performed any of these procedures because there was no medical justification for performing the bone and joint scans on either occasion, nor was there any medical justification for the related color computer image analysis of the scans. The performance of all of the bone and joint scans and the related color computer image analysis was a failure to practice medicine with the required level of skill, care, and treatment because those scans and analysis served no useful purpose in the diagnosis or treatment of the patient, resulted in additional financial expense to the patient for which the patient received no benefit, and exposed the patient on two occasions to the risk of unnecessary radioactive materials. The Respondent's performance of the bone and joint scans and the related color computer image analysis regarding Patient O.S. was an exploitation of the patient for the financial gain of the Respondent.

    
    

18. In the treatment of Patient O.S. it is fairly debatable whether the first of the carotid artery flow studies performed by the Respondent on the Patient O.S. was within the applicable standard of care. Although the medical conditions presented by Patient O.S. did not clearly indicate a need for such a study, a reasonably prudent primary care physician presented with those circumstances might have ordered or performed an initial carotid artery flow study if he were being extra careful.

    
    

19. The second carotid artery flow study performed on Patient O.S. is a very different matter. There was no medical justifi- cation for performing the second study. The performance of the second study was a failure to practice medicine with the required level of skill, care, and treatment because the second study served no useful purpose and it resulted in additional financial expense to the patient for which the patient received no benefit. The Respondent's performance of the second carotid artery flow study on Patient O.S. was an exploitation of the patient for the financial gain of the Respondent. 3/

    
    

20. On April 20, 1988, an investigator for the Department of Professional Regulation delivered to the Respondent an authorization for the release of

    medical information concerning the Patient O.S. On that same day the Respondent provided the investigator with copies of Patient O.S.'s complete medical records and insurance statements. 4/

    
    

21. Almost two years later, during March of 1990, a Department of Professional Regulation prosecutor (Ms. Gelmine), who was then prosecuting a chiropractor who had also seen Patient O.S., contacted the attorney who was then representing the Respondent and asked whether the attorney would provide the prosecutor with a copy of the Respondent's medical records regarding Patient

    O.S. The prosecutor requesting the records agreed orally that if the Respondent's records were furnished to her, the records would be used solely in the disposition of the case she was prosecuting against a chiropractor and would not be used to prosecute the Respondent in this case. The attorney for the Respondent provided Ms. Gelmine with another copy of the Respondent's medical records regarding the Patient O.S., even though the Department already had copies of those records.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

23. The first legal issue which requires attention is the Respondent's argument that the Department of Professional Regulation is estopped from prosecuting this case. The estoppel is argued to flow from the Respondent's act of furnishing copies of his medical records regarding Patient O.S. when they were requested by Ms. Gelmine in 1990. The facts in this case fail to establish any basis for estoppel because one of the essential elements of an estoppel is that the person seeking the benefit of the estoppel must demonstrate some form of detrimental reliance. Here the Respondent may have relied on Ms. Gelmine's statement, but such reliance was not detrimental because the Department (apparently unknown to Ms. Gelmine) already had the records Ms. Gelmine was requesting. Further, there is no evidence in this record that Ms. Gelmine was authorized to waive prosecution in cases involving medical doctors. 5/

    
    

24. In a license discipline proceeding of this nature the Petitioner bears the burden of proving its charges by clear and convincing evidence. See Ferris

    v. Turlington, 510 So.2d 292 (Fla. 1987). The nature of clear and convincing evidence has been described as follows in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983):

    
    

    We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which, at page 958, quotes with approval the

    above Slomowitz. The Smith case also includes the following at page 958:

    
    

    "Clear and convincing evidence" is an intermediate standard of proof, more than the "preponderance of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So.2d 486 (Fla. 2d DCA 1970).

    
    

25. Section 485.331(2), Florida Statutes (1986 Supp.), reads as follows, in pertinent part:

    
    

    1. When the board finds any person guilty of any of the grounds set forth in subsection (1), 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.

          
          

26. Count One of the Administrative Complaint charges that the Respondent violated Section 458.331(1)(t), Florida Statutes (1986 Supp.). The cited statutory provision authorizes disciplinary action upon proof of the following:

    
    

    (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The board shall give great weight to the provisions of

    s. 768.45 when enforcing this paragraph. As used in this paragraph, "repeated malpractice" includes, but is not limited to, three or more claims for medical malpractice within the previous 5-year period resulting in indemnities being paid in excess of

    $10,000 each to the claimant in a judgment or settlement and which incidents involved negligent conduct by the physician. As used

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

    
    

27. The evidence in this case establishes that in his treatment of Patient O.S., the Respondent failed to order or take any x-rays of the patient at the time of the patient's initial visit. The evidence also establishes that the Respondent performed unnecessary bone scans, unnecessary color computer image analysis of the scans, and an unnecessary carotid artery flow study. As noted in the findings of fact, the failure to take x-rays during the initial visit and the performance of unnecessary bone scans, unnecessary computer analysis, and an unnecessary carotid artery flow study all constitute failures to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Accordingly, it must be concluded that the Respondent has violated subsection (t) of Section 458.331(1), Florida Statutes (1986 Supp.), as alleged in Count One of the Administrative Complaint.

    
    

28. Count Two of the Administrative Complaint charges that the Respondent violated Section 458.331(1)(m), Florida Statutes (1986 Supp.). The cited statutory provision authorizes disciplinary action upon proof of the following:

    
    

    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.

    
    

29. The evidence in this case establishes that the Respondent's medical records of his treatment of Patient O.S. omitted important details with respect to the Respondent's initial examination of the patient and with respect to the history obtained from the patient. The Respondent's medical records fail to demonstrate that the Respondent performed a thorough initial examination of Patient O.S. Accordingly, it must be concluded that the Respondent has violated subsection (m) of Section 458.331(1), Florida Statutes, as alleged in Count Two of the Administrative Complaint.

    
    

30. Count Three of the Administrative Complaint charges that the Respondent violated Section 458.331(1)(n), Florida Statutes (1986 Supp.). The cited statutory provision authorizes disciplinary action upon proof of the following:

    
    

    (n) Exercising influence on the patient or client in such 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.

    
    

31. The evidence in this case establishes that in the treatment of Patient O.S., the bone scans performed by the Respondent, the color computer image

    analysis of the scans performed by the Respondent, and the second carotid artery flow study performed by the Respondent, were all unnecessary because they served no useful purpose in the diagnosis or treatment of the patient. The unnecessary bone scans, the unnecessary computer analysis, and the unnecessary carotid flow study served only to enrich the Respondent at the expense of the patient, without providing any benefit to the patient. Accordingly, it must be concluded that the Respondent has violated subsection (n) of Section 458.331(1), Florida Statutes (1986 Supp.), as alleged in Count Three of the Administrative Complaint.

    
    

32. In determining the appropriate penalty to be applied in this case note must be taken of the fact that in the course of his treatment of the Patient O.S., the Respondent displayed an unconscionable indifference to the medical and financial well-being of his patient by performing expensive tests that were of no value in the diagnosis and treatment of the patient and had the adverse effect of exposing the patient to unnecessary radioactive materials. In his treatment of the subject patient the Respondent gave greater consideration to the advancement of his own financial interests than he gave to the proper medical management of his patient. The Respondent's conduct in this case reflects a personal value system or a personal decision-making process which is the antithesis of the values and decision-making expected of those who are entrusted to practice the healing arts. Because the Respondent's conduct is so totally contrary to what is expected of a physician, the appropriate penalty is the very severe penalty of revocation of the Respondent's license to practice medicine.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be entered in this case to the following effect:

1. Concluding that the Respondent has violated subsections (m), (n), and

   (t) of Section 458.331(1), Florida Statutes (1986 Supp.), as charged in Counts One, Two, and Three of the Administrative Complaint; and

   
   

2. Imposing an administrative penalty consisting of an administrative fine in the amount of five thousand dollars ($5,000.00) for each of the three counts for a total fine in the amount of fifteen thousand dollars ($15,000.00) and revocation of the Respondent's license to practice medicine in the State of Florida.

DONE AND ENTERED this 21st day of January, 1993, at Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH, 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 21st day of January, 1993.

ENDNOTES

1/ The description of the Respondent's findings upon initial examination of Patient O.S. is taken directly from the first page of the Respondent's discharge report dated November 19, 1986.

2/ The Respondent testified at hearing that he gave the Patient O.S. an appropriate and adequate physical and neurological examination. There is no evidence that directly conflicts with such testimony. I have credited the Respondent's testimony in this regard even though his medical records are insufficient to memorialize a thorough examination.

3/ The extent of the Respondent's financial exploitation of Patient O.S. by performing unnecessary bone scans, unnecessary computer analysis of the scans, and an unnecessary carotid artery flow study, is shown by the following entries from the Respondent's billing records for Patient O.S.

4/ In this regard, see the last paragraph of DPR Exhibit 2.

5/ It is also noted that Ms. Gelmine never confirmed in writing any agreement not to prosecute the Respondent in this case. (See transcript at page 271)

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-6793

The following are my specific rulings on all proposed findings of fact submitted by all parties.

Proposed findings submitted by the Petitioner:

Paragraphs 1 and 2: Accepted. Paragraph 3: Accepted in substance. Paragraphs 4 and 5: Accepted.

Paragraphs 6, 7, 8, 9, 10, 11, and 12: Accepted in substance. Paragraph 13: Rejected as subordinate and unnecessary details. Paragraphs 14 and 15: Accepted in substance.

Paragraph 16: Rejected as subordinate and unnecessary details. Paragraphs 17, 18, 19, 20, 21, and 22: Accepted in substance.

Paragraph 23: The findings proposed in this paragraph are rejected for the following reasons. There is no clear and convincing evidence as to what would constitute proper or permissible billing practices regarding the bone scans taken of the Patient O.S. Specifically, there is no clear and convincing evidence that the use of CPT code 78300 for each of the several scan images was incorrect, much less that it was a misrepresentation or fraud. Therefore, detailed findings regarding the Respondent's billing practices are irrelevant. Similarly, opinions regarding the practice of billing separately for each scan image are irrelevant in the absence of clear and convincing evidence of the factual predicate for the opinion.

Paragraph 24: Accepted in substance.

Paragraph 25: Rejected as constituting subordinate and unnecessary details, and as constituting argument, rather than proposed findings of fact.

Paragraph 26: Rejected as constituting argument or proposed conclusions of law, rather than proposed findings of fact.

Proposed findings of fact submitted by Respondent:

Paragraph 1: Accepted in part and rejected in part, as follows: Accepted that the Respondent gave a thorough physical examination to the subject patient; the Respondent so testified and there is no direct evidence to the contrary. (It is noted, nevertheless, that the Respondent's records are inadequate to memorialize a thorough physical examination of the patient.) Accepted that the Respondent exercised his training and expertise during his treatment of the subject patient. The proposed finding that the Respondent "reached proper conclusions concerning the extent of any injuries to the patient and concerning appropriate follow

of the evidence. The proposed finding that "Respondent was uniquely suited to examine and explore the condition of the patient and no findings or evidence, etc., etc.," is rejected as contrary to the greater weight of the evidence. The last sentence of this paragraph is rejected because it constitutes subordinate and unnecessary details, because it is primarily argument or proposed conclusions of law, and, in any event, is not fully supported by the evidence.

Paragraph 2: First sentence is rejected as being contrary to the greater weight of the evidence. Second sentence is rejected as, at best, subordinate and unnecessary details. Third sentence is rejected as being contrary to the greater weight of the evidence. Fourth sentence is rejected as constituting subordinate and unnecessary details and also as constituting inferences or conclusions not warranted by the evidence. Fifth sentence is rejected as constituting argument and as also constituting inferences or conclusions not warranted by the evidence.

Paragraph 3: First sentence is rejected as contrary to the greater weight of the evidence. The second sentence is rejected as constituting an inference or conclusion that is not warranted by the evidence. To the contrary, the records shows that the subject patient was, at a minimum, exposed to unnecessary radiation and to unnecessary expense by the performance of unnecessary tests.

Paragraph 4: Rejected as contrary to the greater weight of the evidence. Paragraphs 5 and 6: Rejected as constituting argument, rather than proposed findings of fact. (It is correct argument, but argument nevertheless, and it belongs somewhere other than in the findings of fact.)

Paragraph 7: Rejected as constituting argument, rather than proposed findings of fact.

Paragraph 8: First and last sentences are rejected as contrary to the greater weight of the evidence. Second sentence is rejected as constituting primarily argument; to the extent facts are proposed in the second sentence, they are contrary to the greater weight of the evidence.

Paragraph 9: Rejected as irrelevant discussion of evidence in view of other facts found, or as subordinate and unnecessary details.

COPIES FURNISHED:

Dorothy Faircloth, Executive Director Board of Medicine

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Richard A. Grumberg, Esquire Senior Attorney

Department of Professional Regulation 1940 N. Monroe Street

Tallahassee, Florida 32399-0792

Joseph Harrison, Esquire Suite 275

2500 N. Military Trail Boca Raton, Florida 33431

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.

=================================================================

AGENCY FINAL ORDER

=================================================================

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

DPR CASE NUMBER: 0095873

vs. DOAH CASE NUMBER: 91-6793

LICENSE NUMBER: ME 0013446

JOSHUA L. STERNBERG, M.D.,

Respondent.

/

FINAL ORDER

This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)10, Florida Statutes, on April 2, 1993, in Plantation, Florida, for the purpose of considering the Hearing Officer's Recommended Order, Respondent's Exceptions to the Recommended Order, and Petitioner's Response to Respondent's Exceptions (copies of which are attached hereto as Exhibits A, B, and C, respectively) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by Larry G. McPherson, Jr., Attorney at Law. Respondent was present and represented by Joseph Harrison, Attorney at Law. Upon review of the Recommended Order, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions.

RULINGS ON EXCEPTIONS

1. Respondent's Exception Number 1 is REJECTED based on the reasons stated by Petitioner in its written response.

   
   

2. Respondent's Exception Number 2 is REJECTED based on the reasons stated by Petitioner in its written response.

   
   

3. Respondent's Exception Number 3 is REJECTED based on the reasons stated by Petitioner in its written response.

   
   

4. Respondent's Exception Number 4 is REJECTED based on the reasons stated by Petitioner in its written response.

   
   

5. Respondent's Exception Number 5 is REJECTED based on the reasons stated by Petitioner in its written response.

   
   

6. Respondent's Exception Number 6 is REJECTED based on the reasons stated by Petitioner in its written response.

7. The first unnumbered paragraph under Conclusions of Law and Discussion in Respondent's Exceptions is REJECTED on the basis that it fails to set forth with reasonable specificity the specific finding or conclusion at issue and the basis for the exception, as required by Rule 21M-18.004, F.A.C.

   
   

8. The second unnumbered paragraph under Conclusions of Law and Discussion in Respondent's Exceptions is REJECTED, based on the reasons stated by Petitioner in its written response.

   
   

9. Respondent's Exception to Conclusion of Law 27 is REJECTED based on the reasons stated by Petitioner in its written response.

   
   

10. Respondent's Exception to Conclusion of Law 29 is REJECTED based on the reasons stated by Petitioner in its written response.

    
    

11. Respondent's Exception to Conclusion of Law 31 is REJECTED based on the reasons stated by Petitioner in its written response.

    
    

12. Respondent's Exception to Conclusion of Law 32 is REJECTED based on the reasons stated by Petitioner in its written and oral responses.

FINDINGS OF FACT

1. Findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

2. There is competent substantial evidence to support the findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.

   
   

2. The conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

3. There is competent substantial evidence to support the conclusions of

law.

PENALTY

Upon a complete review of the record in this case, the Board determines

that the penalty recommended by the Hearing Officer be REJECTED based on the record evidence of Respondent's background and training and on the isolated nature of the charges. WHEREFORE,

IT IS HEREBY ORDERED AND ADJUDGED that

1. Respondent is hereby REPRIMANDED.

   
   

2. Respondent shall pay an administrative fine in the amount of $15,000.00 to the Board of Medicine, Department of Professional Regulation, within 30 days of the date this Final Order is filed.

3. Respondent's license to practice medicine in the State of Florida is SUSPENDED for a period of 2 years and until he appears before the Board and demonstrates his ability to practice medicine with skill and safety.

   
   

4. Upon reinstatement from suspension, Respondent's license to practice medicine in the State of Florida is placed on PROBATION for a period of 3 years, subject to terms and conditions to be set at that time. The probation shall, however, at least include a requirement for community service.

This order takes effect upon filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 13th day of April, 1993.

BOARD OF MEDICINE

EDWARD A. DAUER, M.D. VICE CHAIR

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF PROFESSIONAL REGULATION AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order had been provided by certified mail to Joshua L. Sternberg, M.D., Medical Service Center, 16751 N.E. 6th Avenue, North Miami Beach, Florida 33162 and Joseph Harrison, Attorney - at Law, Slepin, Harrision & Feuer, 2500 North Military Trail, Suite 275, Boca Raton, Florida 33431, by U.S. Mail to Michael M. Parrish, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and byinteroffice delivery to Larry G. McPherson, Jr., Chief Medical Attorney, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 at or before 5:00 P.M., this day of 1993.

(Final Order filed undated)

AMENDED CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Joshua L. Sternberg, Medical Service Ctr., 16751 NE 6th NE 6th Ave., N. Miami Bch. Fl 33162, and Michael M. Parrish, Hearing Officer, Division of Administrative Hearing, The DeSoto Bldg., 1230 Apalachee Pkwy., Fl 32399, at or before 5:00 p.m., this 16th day of April, 1993.

DOROTHY J. FAIRCLOTH

Docket for Case No: 91-006793

Orders for Case No: 91-006793