STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6783

)

FREDERICK J. KUNEN, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on January 11, 1994, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Kenneth J. Metzger, Esquire

Senior Attorney

Department of Business and Professional Regulation

Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792

For Respondent: Ronald S. Lowy, Esquire

Sharon L. Christenbury, Esquire Law Offices of Ronald S. Lowy Barnett Bank Building

420 Lincoln Road, PH/7th Floor Miami Beach, Florida 33139

STATEMENT OF THE ISSUES

Whether Respondent, a medical doctor licensed to practice in the State of Florida, committed the offenses set forth in the Administrative Complaint, and, if so, the penalties that should be imposed.

PRELIMINARY STATEMENT

On April 27, 1992, Petitioner filed a three count Administrative Complaint against the Respondent. The Administrative Complaint contained certain factual allegations and, based on those factual allegations, charged Respondent as follows: Count I, with violating Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records justifying the course of treatment of a patient; Count II, with violating Section 458.331(1)(k), Florida Statutes, by making deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick or scheme in the practice of medicine in that Respondent made fraudulent insurance claims based on his reliance on

"hemavision", an unaccepted and unrecognized medical diagnostic procedure and that he overcharged for this procedure in his insurance claims; and Count III with violating Section 458.331(1)(g), Florida Statutes, by failing to keep a current correct address on file with the Petitioner at which he is conducting his primary practice of medicine.

Following the filing of Respondent's election of rights, the matter was referred to the Florida Division of Administrative Hearings and assigned DOAH Case No. 92-6783. At the formal hearing, the parties stipulated to certain facts, as more particularly detailed below. Petitioner offered into evidence seven exhibits, each of which was accepted into evidence. In light of the parties' stipulation, Petitioner offered no witnesses. By his stipulation, Respondent admitted the underlying factual allegations, and he did not contest that his acts constituted violations as alleged in the Administrative Complaint. The findings of fact contained under the heading "Stipulated Findings of Fact" are taken from the stipulation that was entered on the record by the parties and are contained in the Proposed Recommended Order filed by each party. Respondent testified on his own behalf in mitigation of his acts.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. The proposed findings of fact submitted by the parties are adopted in material part by the Recommended Order or they are subordinate to findings made.

FINDINGS OF FACT STIPULATED 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. At all times pertinent to this proceeding, Respondent has been a licensed physician in the State of Florida, having been issued license number ME 0046170. Respondent's last know address is 10611 North East 11th Avenue, Miami Shores, Florida, 33138.

   
   

3. At all times material hereto, Respondent was employed by the Immunology Allergy Institute (Institute) in Davie, Florida.

   
   

4. In June, 1988, Blue Cross/Blue Shield of Florida (BC/BS) disallowed insurance claims filed on Respondent's behalf at the Institute for laboratory tests and treatment of three patients. The claims made ranged from $1,481.00 to

   $1,861.00 for allergy tests and treatment performed in single office visits.

   
   

5. The parties stipulated that BC/BS's documented reasons for disapproving Respondent's claims included, but were not limited to: "examinations; no laboratory data to support Respondent's diagnoses; no documentation by a physician of abnormal lab results; no records of further work-up or treatment; and no documentation of multiple allergies."

   
   

6. Employees at the Institute filed reimbursement requests with BC/BS, signing Respondent's name, seeking reimbursement for use of a diagnostic

   procedure called "hemavision" on which the Institute, and the Respondent, relied to make diagnoses of the three patients in question.

   
   

7. "Hemavision" is a process whereby a drop of a patient's blood is magnified and displayed on a television monitor, presumably for the patient's benefit. An advertisement for hemavision claims the process can reveal thirty- eight (38) human blood characteristics, including the proclivity of the patient towards heart disease, cancer, diabetes, yeast infections, immunodeficiency, and other less sinister ailments.

   
   

8. "Hemavision" is not an accepted medical diagnostic procedure, and is not recognized as such in any field of medical practice.

   
   

9. Respondent failed to properly supervise or prevent insurance claims being filed with BC/BS by employees at the Institute for his use of "hemavision" in formulating a diagnosis for three (3) patients.

   
   

10. Respondent failed to keep written medical records justifying the course of treatment of the patients in that Respondent failed to do the following: keep written patient histories; document physical examinations; record laboratory data to support his diagnoses; record abnormal test results, if any; record subsequent work-up or treatment of patients; and document multiple allergies.

    
    

11. Based upon the foregoing, Respondent violated Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations.

    
    

12. Respondent's current mailing address, as listed with the Department of Business and Professional Regulation, Board of Medicine, is 8905 South West 102nd Terrace, Miami, Florida, 33176-3013; however, the United States Post Office forwarding address order has expired.

    
    

13. The forwarding address listed with the United States Post Office was 10611 11th Avenue, North East, Miami Shores, Florida, 33138.

    
    

14. Respondent refused or declined to accept mail at the addresses listed in paragraphs 12 and 13 above, or allowed mail to be returned to the Petitioner as unclaimed.

    
    

15. Pursuant to Section 458.319(5), Florida Statutes, licensees must have on file with the department the address of his primary place of practice within this state prior to engaging in that practice. Prior to changing the address of his primary place of practice whether or not within this state, the licensee is required to notify the department of the address of his new primary place of practice.

    
    

16. The Respondent gave the Institute's address as his own address and thereafter left the employ of the Institute without leaving a forwarding address.

    
    

17. Respondent failed to perform a statutory or legal obligation by failing to keep a current correct address on file with the Department at which he was conducting his primary practice of medicine.

18. Based upon the foregoing, Respondent violated Section 458.331(1)(g), Florida Statutes, by failing to perform any statutory or legal obligation upon a licensed physician by violating Section 458.319(5), Florida Statutes.

    
    

    ADDITIONAL FINDINGS OF FACT

    
    

19. Respondent has worked for approximately eight years in hospital emergency rooms since the completion of his residency. Respondent has been employed by Emergency Medical Services Association, a group that provides emergency medical services to hospitals, for approximately eight years. Respondent has worked in the largest hospitals in Dade County and has treated thousands of patients without ever having a malpractice claim or complaint filed against him because of his activities as an emergency room physician.

    
    

20. Respondent looked for additional employment in late 1987 and early 1988 because he needed to increase his income to support his three children and family, including his parents since his father was ill and had just had open- heart surgery. Respondent found his job with the Institute through an advertisement in the newspaper.

    
    

21. The director of the Institute was a Dr. Seedarnee, who was a research immunologist. Respondent testified that he was impressed with Dr. Seedarnee's professional image, the number of diplomas he had on his wall, and that he had affiliations at various hospitals and worked with a number of physicians. Respondent knew that Dr. Seedarnee was not a physician and that the "hemavision" procedure used by Dr. Seedarnee was not an acceptable medical procedure.

    
    

22. Respondent was told by Dr. Seedarnee that Respondent's responsibilities would solely be to see patients and to conduct physical examinations on patients. Dr. Seedarnee showed Respondent how the "hemavision" process worked and used the process with patients who came into the office.

    
    

23. Respondent was expected to work at the Institute from approximately 9:00 a.m. to either 4:00 or 5:00 p.m. While employed at the Institute, Respondent was also working at Memorial Hospital Emergency Room from midnight until 8:00 a.m. Respondent was working or traveling to work between 16 and 20 hours each work day.

    
    

24. Respondent received a salary at the Institute and did not receive any commission, profit sharing, or bonus. Respondent knew that he was one of only two licensed physicians at the Institute.

    
    

25. Respondent's agreement with the Institute was that the office staff would handle the actual paperwork and that all remuneration would go directly to the Institute. Respondent was not directly involved in the billing procedures or process of the Institute. Respondent did not see or review any health insurance claim forms, he did not sign any health insurance claim forms, he never received any checks payable to him from any insurance providers, and he was not involved in collecting any money at the Institute. The signatures on the health claim forms in Petitioner's Exhibits 4, 5, and 6 that appear to be those of the Respondent were not signed by the Respondent.

    
    

26. Respondent failed to properly supervise or prevent the insurance claims from being filed by the Institute. Respondent was not aware of the amounts being billed or the exact services represented by the billings, but he knew that the patients involved in this proceeding would be requested by the Institute to pay for services rendered to them and he knew that the payment

    would be made personally by the patient or by an insurance carrier. Respondent further knew that the patients were being required to pay for the "hemavision" process and he knew or should have known that the "hemavision" process was not recognized in any field of medical practice. Respondent permitted his name, title, and provider number to be used by his employer to bill for the unauthorized "hemavision" process. Respondent thereby enabled, authorized, and assisted others to prepare and/or submit fraudulent insurance claims. Dr.

    Seedarnee, not being a licensed provider, was unable to prepare, sign, and submit a medical license claim for reimbursement for the "hemavision" process performed by Dr. Seedarnee on Respondent's patients without Respondent's knowledge and consent.

    
    

27. Respondent admitted that the medical histories he performed on patients at the Institute were cursory and inadequate. Despite knowing that these medical histories were cursory and inadequate, Respondent permitted the Institute to bill his patients and their insurance carriers for these services.

    
    

28. After complaints were filed relating to the operation of the Institute, Respondent voluntarily resigned his position with the Institute.

    
    

29. Since Respondent left the Institute, his employment has been exclusively as an emergency room physician.

    
    

30. Respondent expressed remorse for his role in occurrences at the Institute.

    
    

31. Respondent testified that he has learned from this experience and has the desire to educate others, such as medical students, about the scope of responsibilities of physicians in order to help prevent students from making some of the same mistakes Respondent made.

    
    

    CONCLUSIONS OF LAW

    
    

32. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 120.57(1) and 455.225, Florida Statutes.

    
    

33. Section 458.331, Florida Statutes, provides, in pertinent part, as follows:

    
    

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

       * * *

       (g) Failing to perform any statutory or legal obligation placed on a licensed physician.

       * * *

       (k) Making deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick or scheme in the practice of medicine.

       * * *

       (m) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or

       administered; and reports of consultations and hospitalizations.

       * * *

    2. 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. Revocation or suspension of a license.

          2. Restriction of practice.

          3. Imposition of an administrative fine not

             to exceed $5,000 for each count or separate offense.

          4. Issuance of a reprimand.

          5. 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 . . . attend continuing education courses . . . or to work under the supervision of another physician.

          
          

34. The parties agree that Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

35. Respondent has conceded that his stipulation with Petitioner establishes that he violated the provisions of Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records justifying the course of treatment of patients as alleged in Count I of the Administrative Complaint.

    
    

36. Respondent has also conceded that his stipulation with Petitioner establishes that he violated the provisions of Section 458.331(1)(g), Florida Statutes, by failing to keep a current correct address on file with the Petitioner at which he was conducting his primary practice of medicine as alleged in Count III of the Administrative Complaint.

    
    

37. The parties disagree whether the stipulation established that Respondent violated the provisions of Section 458.331(1)(k), Florida Statutes, by making deceptive, untrue, or fraudulent representations in or related to the practice of medicine as alleged in Count II of the Administrative Complaint. It is apparent that Respondent turned a blind eye to the billing practices of the Institute and thereby permitted his name and his provider number to be used as part of the Institute's fraudulent billing practice. Respondent knew that the "hemavision" process was being used by the Institute, he relied on the results of that process, and he permitted three of his patients to be billed for this medically unacceptable process. Consequently, it is concluded that Petitioner established by clear and convincing evidence the alleged violation of Section 458.331(1)(k), Florida Statutes.

    
    

38. Rule 61F-20.001, Florida Administrative Code, provides disciplinary guidelines pertinent to this proceeding. For a violation of Section 458.331(1)(m), Florida Statutes, the recommended penalty is as follows: "From a reprimand to denial or two (2) years suspension followed by probation, and an administrative fine from $250.00 to $5,000.00." For a violation of Section 458.331(1)(k), Florida Statutes, the recommended penalty is as follows: "From probation to revocation or denial, and an administrative fine from $250.00 to

    $5,000.00." For a violation of Section 458.331(1)(g), Florida Statutes, the

    recommended penalty is as follows: "From a reprimand to revocation or denial, and an administrative fine from $250.00 to $5,000.00."

    
    

39. Rule 61F-20.001(3), Florida Administrative Code, provides for aggravating and mitigating factors as follows:

    
    

    1. Aggravating and Mitigating Circumstances. Based upon consideration of aggravating and mitigating factors presented in an individual case, the Board may deviate from the penalties recommended above. The Board shall consider as aggravating or mitigating factors the following:

       1. Exposure of patient or public to injury or potential injury, physical or otherwise: none, slight, severe, or death;

       2. Legal status at the time of the offense: no restraints, or legal constraints;

       3. The number of counts or separate offenses established;

       4. The number of times the same offense or offenses have previously been committed by the licensee or applicant;

       5. The disciplinary history of the applicant or licensee in any jurisdiction and the length of practice;

       6. Pecuniary benefit or self-gain inuring to the applicant or licensee;

       7. Any other relevant mitigating factors.

    
    

40. There are no aggravating or mitigating factors of sufficient weight to require deviation from the recommended penalties provided by the guidelines.

    
    

41. Fraud in the practice of medicine in any form is a serious violation of the standards imposed on the medical profession. In this proceeding, it is significant that Respondent's participation in this fraudulent billing was in a limited number of cases over a short period of time. It is also significant that Respondent was a passive participant in that he allowed these practices to occur and that he did not receive additional compensation as a result of the Institute's fraudulent billings.

    
    

42. The failure to keep adequate medical records and to take adequate histories from patients are also serious violations of the standards imposed on the medical profession since another practitioner may unwittingly rely on those records or histories to the detriment of the patient.

    
    

43. It is also considered that these events occurred in 1988 and that Respondent has practiced since that time as an emergency room physician without incident.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order which adopts the findings

of fact contained herein.

The Final Order should find that Respondent violated the provisions of Section 458.331(1)(m), Florida Statutes, as alleged in Count I of the Administrative Complaint. The penalty for this violation should be the issuance of a letter of reprimand, the assessment of an administrative fine in the amount of $2,500, and the imposition of a two year term of probation under indirect supervision.

The Final Order should find that Respondent violated the provisions of Section 458.331(1)(k), Florida Statutes, as alleged in Count II of the Administrative Complaint. The penalty for this violation should be the assessment of an administrative fine in the amount of $2,500, and the imposition of a two year term of probation under indirect supervision.

The Final Order should find that Respondent violated the provisions of Section 458.331(1)(g), Florida Statutes, as alleged in Count III of the Administrative Complaint. The penalty for this violation should be the issuance of a letter of reprimand and the assessment of an administrative fine in the amount of $250.

It is further recommended that the terms of probation recommended above run concurrently and contain such terms and conditions as the Board of Medicine deems appropriate.

DONE AND ENTERED this 24th day of March 1994 in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 24th day of March 1994.

COPIES FURNISHED:

Kenneth J. Metzger, Esquire Department of Business and

Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ronald S. Lowy, Esquire

Sharon L. Christenbury, Esquire Law Offices of Ronald S. Lowy Barnett Bank Building

420 Lincoln Road, PH/7th Floor Miami Beach, Florida 33139

Dr. Marm Harris, Executive Director Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack McRay, Acting General Counsel Department of Business and

Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street

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 ten 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: 92-006783

Orders for Case No: 92-006783