STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NOS. 94-2142

) 94-3430

PETER R. GENOVESE, M.D., )

)

Respondent. )

) AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NOS. 94-3757

) 94-3759

ALAN K. ROBERTS, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in these cases on June 28, 1995, in Miami, Florida.

APPEARANCES

For Petitioner in Kenneth Metzger, Esquire

Case Nos. 94-3757 Agency for Health Care Administration and 94-3759: 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Petitioner in Joseph Garwood, Esquire

Case Nos. 94-2142 Agency for Health Care Administration and 94-3430: 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondents: Harold M. Braxton, Esquire

Suite 400, One Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156-7815

STATEMENT OF THE ISSUES

Whether Respondents violated Sections 458.331(1)(k), (m), (n), and (t), Florida Statutes, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On March 23, 1994, Petitioner, Agency for Health Care Administration (formerly Department of Business and Professional Regulation), filed a two count administrative complaint against Respondent, Alan Kenneth Roberts, M.D. (Roberts), alleging that he violated Sections 458.331(1)(m) and (t), Florida Statutes (DOAH Case No. 94-3759). On March 23, 1994, Petitioner filed a two count administrative complaint against Respondent, Peter R. Genovese, M.D. (Genovese), alleging that he violated Sections 458.331(1)(m) and (t), Florida Statutes (DOAH Case No. 94-2142). On May 31, 1994, Petitioner filed a two count administrative complaint against Roberts, alleging that he violated Sections 458.331(1)(k) and (n), Florida Statutes (DOAH Case No. 94-3757). On May 31, 1994, Petitioner filed a two count administrative complaint against Genovese, alleging that he violated Sections 458.331(1)(k) and (n), Florida Statutes (DOAH Case No. 94-3430). The cases were forwarded to the Division of Administrative Hearings for assignment to a Hearing Officer.

By orders dated July 24, 1994, and August 3, 1994, the cases were consolidated for final hearing. The final hearing was scheduled for January 12- 13, 1995. On October 3, 1994, Petitioner filed a request for continuance, which was granted. The final hearing was rescheduled for March 27-31, 1995. On March 9, 1995, the parties filed a joint motion for continuance which was granted.

The final hearing was rescheduled for June 28-30, 1995.

At the final hearing, Petitioner called P.W., Jose R. Menendez and Lynn P. Carmichael as witnesses. Petitioner's Exhibits 1, 5, 6, 10, 11, 22-25, 29, and 30-35 were admitted in evidence. Each Respondent testified in his own behalf.

At the final hearing, Counsel for Petitioner stated that the Petitioner would not be pursuing the allegations in the administrative complaints concerning patient J.C.

The transcript was filed on July 17, 1995.

At the final hearing, Petitioner submitted the depositions of the Respondents, C.W., and Dr. Mark Kaufman. Respondents were granted leave to file any objections to the deposition testimony by July 21, 1995. Respondents filed their objections on July 12, 1995, and Petitioner filed its response on July 28, 1995. On August 30, 1995, an Order was entered ruling on the objections. The parties had agreed to file their proposed recommended orders within 15 days of the filing of the Order ruling on the objections. On September 5, 1995, Respondents filed an unopposed Motion for Enlargement of Time to file proposed recommended orders. The motion was granted and the time for filing was extended to September 28, 1995. On September 22, 1995, Respondents filed an unopposed Verified Emergency Motion for Extension of Time to file proposed recommended orders. The motion was granted and the time for filing was extended to November 3, 1995. The parties timely filed their proposed recommended orders. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Agency for Health Care Administration (Agency), is the state agency charged with regulating the practice of medicine pursuant to Section 20.42 and Chapters 455 and 458, Florida Statutes.

2. Respondent, Alan K. Roberts, M.D. (Roberts), is and has been at all times material to this proceeding a licensed physician in the State of Florida having been issued license number ME 0030398 in 1977. He is a Board Certified family practice physician.

   
   

3. Respondent, Peter R. Genovese, M.D. (Genovese) is and has been at all times material to this proceeding a licensed physician in the State of Florida having been issued license number ME 0013626. He is a Board Certified family practice physician.

   
   

4. Roberts and Genovese are the co-owners of Sunshine Medical Center (SMC) which operates three separate offices located in the Miami area at Sunset Drive, Port of Miami, and Port Everglades.

   
   

5. Jose R. Menendez, M.D. (Menendez) has been a licensed physician in the State of Florida since 1973. Menendez began working for SMC in 1992 and worked there for approximately six months. Menendez worked at the Sunset Drive and Port of Miami locations. Aside from his salary, Menendez received no other remuneration and had no financial interest in SMC.

   
   

   PATIENT C.W.

   
   

6. In 1985, SMC had a contract with the Public Employees Service Company (PESCO) whereunder SMC would perform routine screening physicals on Dade County teachers and administrators. The physicals were called VISTA examinations.

   
   

7. Patient C.W., a clerk with the Dade County School System, went to SMC for a VISTA examination on October 16, 1985. She filled out a patient information form indicating her home address, home telephone number, name of employer, and her work telephone number.

   
   

8. C.W.'s examination consisted of blood tests, urinalyses, chest x-rays, EKG, hearing function tests and a spirometry. All of the tests were administered by a female employee of SMC.

   
   

9. After completion of the tests, C.W. met with a man whom she believed was a doctor, who in her presence, looked at the x-rays. C.W. did not see the x-rays herself. She was advised that "everything looked fine." She was not told that she had a problem with her lungs or that the x-rays showed that she had any suspicious tumors or masses on her lungs. In reality, the x-rays indicated abnormalities in her chest. C.W.'s spirometry test results were abnormal and her white blood cell count was low, but she was not informed of these abnormalities.

   
   

10. C.W.'s charts show that she was seen at SMC on October 16, 1985, but do not indicate what doctor was responsible for supervising and administering the tests and what doctor met with C.W. after the tests were completed. There are no physical findings recorded in the clinical data portion of C.W.'s chart and no notes are in the chart as to the results of the tests performed.

    
    

11. Neither Dr. Genovese nor Dr. Roberts examined C.W. on October 16, 1985.

    
    

12. SMC used a pre-printed form letter to notify its patients of the results of the VISTA examination. The form letter contained the stamped signatures of the Respondents.

13. On October 21, 1985, an undated form letter was sent to C.W. advising her that the results of the VISTA examination were normal and satisfactory and that no medical follow-up was necessary. A handwritten notation on the form letter stated, "Please increase the iron intake. Your blood work show (sic) decrease iron. Also, stop smoking." C.W. received the letter. The form letter contained stamped signatures of the Respondents.

    
    

14. On November 4, 1985, the Respondents were conducting a routine review of patients' charts and x-rays, including those of C.W. The Respondents noted the abnormality on C.W.'s x-ray. C.W.'s charts did not mention the abnormality.

    
    

15. On November 4, 1985, Respondents sent a second preprinted and presigned form letter to C.W. which advised C.W. that the results of the VISTA examination required a follow up visit. The form letter contained the following handwritten note:

    
    

    Review of our records reveals that your lab reports were omitted from our report of

    10-21-85. A copy is enclosed for your family doctor. Also, your chest x-ray is abnormal and you should see your family doctor

    immediately for a second x-ray and follow-up care.

    
    

16. The second letter was sent by first class U.S. mail. C.W. did not receive the second letter informing her of the abnormal x-ray.

    
    

17. On November 12, 1985, the laboratory supervisor for SMC placed a telephone call to C.W. at her home but did not get an answer.

    
    

18. On November 14, 1985, Genovese placed a telephone call to C.W.'s home but did not receive an answer.

    
    

19. On November 19, 1985, Roberts called C.W. at home and received no answer. On November 19, 1985, Roberts called PESCO and advised a PESCO staff member that C.W. had an abnormal chest x-ray. No further attempt was made by Respondents to contact C.W.

    
    

20. The purpose of the telephone calls to C.W. was to make certain that she got follow-up treatment for the mass in her lung.

    
    

21. After the examination at SMC, C.W. began having a fever and generally felt ill. In February, 1986, C.W. consulted with a doctor and was advised that she had a tumor in her lung. The lower lobe of her right lung was surgically removed; however, the cancer spread to other parts of her body. C.W. died as a result of lung cancer.

    
    

22. When the October 21 and November 4, 1985 letters were sent under the Respondents' preprinted signatures, the Respondents became involved in the care of Patient C.W. Patient C.W. was advised by a form letter from Respondents that her examination was satisfactory, when a review of C.W.'s x-ray showed a gross abnormality. To so advise the patient gave the patient a false reassurance that she was physically well except for her anemia. The document did not accurately reflect the test results of the patient.

    
    

23. Respondents again involved themselves in the care of Patient C.W. when they reviewed her x-rays and discovered the abnormality in her lung and sent a second letter to notify her that the x-ray was abnormal and that she should see

    her family doctor. Although the letter was sent first class U.S. mail and was not returned to Respondents, Respondents should have either sent the letter by certified mail or made personal contact with C.W. Failure to do so constituted a level of care and treatment which fell below that level which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.

    
    

    INSURANCE BILLINGS

    
    

24. In order to start the billing process for services provided at SMC, each doctor generates a "super bill" which reflects the services provided such as office visit, x-rays, laboratory work and electrocardiograms. The charges are placed on the super bill by clerical staff and returned to the doctor at the end of the day to be checked for accuracy. The super bill is then transmitted to the billing department at SMC where it is encoded by a clerk and an insurance claim form is generated. As part of the encoding process, either a doctor's name or SMC's name is placed on the form. As part of SMC's quality assurance program, the insurance claims are reviewed in batches to check that the diagnoses, procedures and charges are appropriate. It is common for the insurance claims to be backed up for 7 to 10 days in the billing department.

    
    

25. The money collected for the insurance billings goes directly to SMC.

    
    

26. SMC submitted insurance claims for treatment of the following five patients during March 1993 through May 1993: J.V., R.L., L.W., P.Z., and D.W.

    
    

27. SMC submitted a claim form dated March 31, 1993 to Metropolitan for services rendered to patient J.V. on March 25 and 29, 1993. The claim form stated that the physician was J.R. Menendez. Part of the services rendered to

    1. on March 25, 1993 was an injection of terramycin.

       
       

28. Menendez did not work on March 25, 1993. He has never administered any Terramycin intramuscularly or intravenously to a patient in his professional career. Menendez did not provide any services to patient J.V. on March 25, 1993.

    
    

29. The services listed on the claim form were provided to patient J.V. on March 25, 1993, by staff at SMC; however it was by someone other than Menendez. Menendez did provide follow-up services for J.V. on March 29, 1993.

    
    

30. SMC submitted an insurance claim form dated March 31, 1993, for services provided to patient R.L. on March 30, 1993. The claim form stated that the physician was J.R. Menendez.

    
    

31. Menendez did not work on March 30, 1993 and did not provide any services to patient R.L. on that date. However, the services listed on the insurance claim form were provided to patient R.L. by someone at SMC on March 30, 1993.

    
    

32. SMC submitted an insurance claim form dated March 31, 1993, for services provided to patient D.W. on March 31, 1993. The claim form stated the physician was J.R. Menendez.

    
    

33. Menendez did not work on March 31, 1993, and did not provide any services to patient D.W. on that date. Someone at SMC, other than Menendez, provided the services to patient D.W. on March 31, 1993.

34. SMC submitted an insurance claim form dated March 31, 1993, for services provided to patient P.Z. on March 31, 1993. The claim form stated the physician was J.R. Menendez.

    
    

35. Menendez did not work on March 31, 1993, and did not provide any services to patient P.Z. on that date. P.Z. was provided the services on March 31, 1993, by someone at SMC other than Menendez.

    
    

36. SMC submitted an insurance claim form dated March 31, 1993, for services provided to patient L.W. on March 30, 1993. Part of the services rendered to L.W. was an injection of terramycin.

    
    

37. Menendez did not work on March 30, 1993, and did not provide any services to patient L.W. on that date. Someone else at SMC provided the services to patient L.W. on March 30, 1993.

    
    

38. SMC submitted an insurance claim to Central States Southeast and Southwest Areas Health and Welfare Fund for services provided to patient P.W. on February 3, 1993. The claim form stated that the physician was Jose M. Menendez and contained the purported signature of J. Menendez, MD. Menendez did not provide services to P.W. on February 3, 1993, and did not sign the insurance claim form.

    
    

39. P.W. was a regular patient of Roberts. Roberts examined and treated

    1. on February 3, 1993.

    
    

40. As of August 12, 1993, SMC had not received payment from Central States for services provided to P.W. on February 3, 1993. SMC submitted a second claim for the February 3 services, but this time the physician was listed as Dr. Modesto Ordoqui.

    
    

41. Some time in April, 1993, one of the Respondents gave Menendez a folder containing some insurance claim forms to review to make sure the services correlated with the diagnoses. After reviewing the files, Menendez concluded that he had not provided services to patients J.V., R.L., L.W., P.Z. and D.W. listed on the insurance claim forms given to him by Roberts.

    
    

42. On April 15, 1993, at a dinner meeting with Respondents, Menendez told them that he had not provided the services to the patients on the insurance claims that Roberts had given him to review. The Respondents told him that they did not know what he was talking about. Menendez resigned that evening.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

44. Petitioner has alleged in the Administrative Complaints that the Respondents have violated Sections 458.331(1)(k), (m), (n), and (t), Florida Statutes. The Petitioner has the burden to establish by clear and convincing evidence that the Respondents are guilty of these violations. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1st DCA 1987). 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. Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

45. The applicable subsections of Section 458.331(1), Florida Statutes, provide:

    
    

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

       * * * *

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

       * * * *

       1. 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.

       2. 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

       of selling of services, goods, appliances, or drugs.

       * * * *

       (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....

       
       

46. In Count One of the Administrative Complaints in Case Nos. 94-3430 and 94-3757, the Respondents are charged with violating Section 458.331(1)(k), Florida Statutes by using Dr. Menendez's name to file insurance claims for services that were not provided. In order to establish such a violation, the Agency must show that misleading, untrue or fraudulent representation was made willfully, i.e. intentionally. Gentry v. Department of Professional and Occupational Regulations, 293 So.2d 95, 97 (Fla. 1st DCA 1974). Listing Menendez as the treating physician on the insurance claims at issue for patients, J.V., R.L., L.W., P.Z., D.W., and P.W. was an untrue representation; however, the Agency has not established by clear and convincing evidence that the Respondents were aware that at the time that the insurance claims were submitted for patients J.V., R.L., L.W., P.Z. and D.W. that Menendez had not provided the services for those patients. No evidence was presented that Respondents had directed SMC personnel to erroneously list Menendez as the treating physician for the insurance claims at issue. The unrebutted testimony is that the services were provided to the patients, but not by Menendez.

    
    

47. The agency did not establish that Respondents were aware that Menendez was listed as the treating physician on the insurance claim for the services provided to P.W. on February 3, 1993. When SMC did not receive payment for the first bill sent to the insurance company for services provided to P.W. on February 3, SMC sent another bill but erroneously listed Dr. Ordoqui as the treating physician. The agency did not establish that Respondents were aware that Dr. Ordoqui was listed as the treating physician when the second bill was sent. There was no evidence that SMC was paid twice for the same services

    rendered to P.W. on February 3, 1993. The evidence did establish that Roberts provided the services to P.W. on February 3. Petitioner has failed to establish by clear and convincing evidence that Respondents violated Section 458.331(1)(k), Florida Statutes.

    
    

48. In Count Two of the Administrative Complaints Nos. 94-3440 and 94- 3757, Petitioner alleged the Respondents had violated Section 458.333(1)(n), Florida Statutes, by filing fraudulent claims to patients' insurance companies under patients' names for payment of services that were not performed and/or services which had already been paid for by the patients. The evidence established that the services which were billed to the insurance companies were provided to the patients. No evidence was presented that a claim was made to an insurance company for services that had been paid for by a patient. The Agency has failed to establish that Respondents violated Section 458.331(1)(n), Florida Statutes.

    
    

49. In Count One of the Administrative Complaints in Case Nos. 94-2142 and 94-3759, the Respondents are charged with violating Section 458.331(1)(t), Florida Statutes, by being guilty of the failure to practice medicine within the prevailing standard of care in that they failed to properly and timely interpret Patient C.W.'s test results, and failed to follow the appropriate plan of treatment for the patient, including proper timely notification and referrals for further treatment.

    
    

50. Section 455.331(1)(t), Florida Statutes, states that the standard of care is measured by that which a reasonably prudent similar physician recognizes as being acceptable under similar conditions and circumstances. This statute requires that in determining "similar conditions and circumstances," the Board shall give great weight to the provisions of Section 766.102(1), Florida Statutes, which mandates that the standard of measurement for an alleged act is the prevailing standard of care. Section 766.102(1), Florida Statutes defines "prevailing standard of care" as "that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers."

    
    

51. Respondents moved to strike the testimony of Petitioner's expert witness, Dr. Lynn P. Carmichael because Petitioner did not tender him as an expert. The evidence established that Dr. Carmichael's credentials were more than adequate to qualify him to render an opinion as an expert on the matters of the medical records and the standard of care for the notification of the patient. It was unnecessary for Petitioner to formally proffer Dr. Carmichael as an expert witness. See Chambliss v. White Motor Corp., 481 So.2d 6 (Fla. 1st DCA 1985). Respondents' Motion to Stike the testimony of Dr. Carmichael is DENIED.

    
    

52. The Agency has established that the Respondents violated Section 455.331(1)(t), Florida Statutes by not sending the November 4, 1985 letter by certified mail and by not contacting Patient C.W. personally to make sure that she had received the November 4 letter and understood the seriousness of the abnormal x-ray. Although, Respondents did attempt to call C.W., the telephone calls were made to her home during the weekday. C.W.'s file showed that she worked and included her work telephone number. Common sense would have led one to conclude that if the patient worked more than likely she would not be home during a weekday and the most logical place to contact her would have been at her workplace. However, no effort was made to contact C.W. at work. Respondents efforts at notifying C.W. fell below the level of care, skill, and

    treatment which is recognized by a reasonably prudent similar physician as being acceptable under the conditions and circumstances.

    
    

53. In Count Two of the Administrative Complaints in Case Nos. 94-2142 and 94-3759, the Respondents are charged with violating Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records justifying the course of treatment of the Patient C.W., including, but not limited to, patient histories, examination results, test results, records of drugs prescribed, dispensed, or administered, and reports of consultations and hospitalization.

    
    

54. By notifying C.W. by form letter on October 21, 1985 sent under their preprinted signatures, the Respondents involved themselves in the care and treatment of C.W. by erroneously informing her that the test results were satisfactory. The letter as a medical record did not accurately reflect the test results and as a result violated Section 458.331(1)(m), Florida Statutes.

    
    

55. Respondents moved to strike the deposition of Dr. Richard Smale on the grounds that he was not proffered as an expert and that based on his credentials he did not qualify as an expert to render an opinion on the prevailing standard of care in the community in 1985. Dr. Smale was starting his residency in Pennsylvania at the time the incident at issue arose. Petitioner has failed to establish that Dr. Smale had the training or experience to give an opinion on the prevailing standard of care as it existed in 1985. Respondents motion to strike the deposition of Dr. Smale is GRANTED.

    
    

56. Rule 59R-8.001(2)(t), Florida Administrative Code, provides that for a single violation of Section 458.331(1)(t), Florida Statutes, the recommended penalty range is

    
    

    From two (2) years probation to revocation or denial, and an administrative fine from $250 to $5,000.

    
    

57. Rule 59R-8.001(2)(m), Florida Administrative Code, provides that for a single violation of Section 458.331(1)(m), Florida Statutes, the recommended penalty range is

    
    

    From a reprimand to denial or two (2) years suspension followed by probation, and an administrative fine from $250 to $5,000.

    
    

58. Rule 59R-8.001(3), Florida Administrative Code, provides for aggravating and mitigating circumstances as follows:

    
    

    Based upon consideration of aggravating and mitigating factors present 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 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 circumstances.

    
    

59. The exposure of patient C.W. to potential injury as a result of their failure to notify her of the abnormal x-ray constitutes an aggravating factor. Mitigating factors include Petitioner's failure to establish the violations alleged in two of the administrative complaints and the lack of evidence that the Respondents had any previous disciplinary actions.

    
    

    RECOMMENDATION

60. Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Administrative

Complaints in Case Nos. 94-3430 and 94-3757; finding Respondent Dr. Kenneth Alan Roberts guilty of violating Sections 458.331(1)(m) and (t), Florida Statutes in Counts One and Two of Case No. 94-3759, finding Respondent Dr. Peter R. Genovese guilty of violating Counts One and Two in Case No. 94-2142; and imposing the following penalty as to each Respondent: (1) one year probation with terms and conditions to be set by the Board, (2) an administrative fine in the amount of

$3,000, and (3) a reprimand.

DONE AND ENTERED this 27th day of December, 1995, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND, 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 27th day of December, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2142

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Paragraph 1: Accepted.

2. Paragraph 2: The second sentence is rejected as unnecessary. The remainder is accepted.

3. Paragraphs 3-4: Accepted.

4. Paragraphs 5-8: Accepted in substance.

5. Paragraph 9: Rejected as unnecessary.

6. Paragraph 10: Accepted.

7. Paragraph 11: The first, second, fourth, fifth, sixth,

   and seventh sentences are accepted in substance. The remainder is rejected as unnecessary.

8. Paragraph 12: The first and fourth sentences are accepted in substance. The remainder is rejected as subordinate to the facts found.

9. Paragraph 13: Rejected as unnecessary based on the finding

   that Menendez did not work on March 25, 30, and 31, 1993.

10. Paragraph 14: Accepted that Menendez did not work on March

    25, 30, and 31, 1993. The remainder is rejected as unnecessary.

11. Paragraph 15: The first sentence is accepted in substance.

    The remainder is rejected as subordinate to the facts found.

12. Paragraph 16: The first two sentences are rejected as

    unnecessary. The third and fourth sentences are accepted in substance. The fifth, sixth, seventh, and eighth sentences are rejected as unnecessary. The last sentence is rejected as not supported by the evidence. The remainder is rejected as constituting argument.

13. Paragraph 17: The first sentence is rejected as

    unnecessary. The second sentence is accepted in substance. The last sentence is rejected as not supported by the record. The remainder is rejected as constituting argument.

14. Paragraph 18: The first sentence is rejected as

    unnecessary. The second and third sentences are accepted in substance. The last sentence is rejected as not supported by the evidence. The remainder is rejected as constituting argument.

15. Paragraph 19: The first two sentences are rejected as

    unnecessary. The third sentence is accepted in substance. The last sentence is rejected as not supported by the evidence. The remainder is rejected as constituting argument.

16. Paragraph 20: The first two sentences are rejected as

    unnecessary. The third sentence is accepted in substance. The last sentence is rejected as not supported by the evidence. The remainder is rejected as constituting argument.

17. Paragraphs 21-22: Accepted in substance.

18. Paragraph 23: Rejected as subordinate to the facts found.

19. Paragraph 24: The first sentence is accepted. The

    remainder is rejected as unnecessary.

20. Paragraph 25: Rejected as unnecessary.

21. Paragraph 26: Sentences 1-8, 10, and 11 are accepted in

    substance. Sentences 9 and 12 are rejected as unnecessary. The last sentence is rejected as subordinate to the facts found.

22. Paragraph 27: The second and third sentences are accepted

    in substance. The remainder is rejected as subordinate to the facts found.

23. Paragraph 28: Rejected as subordinate to the facts found.

24. Paragraph 29: Accepted in substance.

25. Paragraph 30: The first sentence is rejected as not

    supported by the evidence. The billing practices may not have been proper in that the correct treating physician's name was not listed on some of the insurance claims but the evidence does not support a finding that the incorrect billing was anything other than a clerical mistake. The last sentence is rejected as subordinate to the facts found.

26. Paragraph 31: The first two sentences are rejected as

    unnecessary. The third and fourth sentences are accepted in substance. The remainder is rejected as constituting argument.

27. Paragraph 32: Accepted in substance that the second billing

    was a rebilling. The documentary evidence established that the second billing was in Dr. Ordoqui's name. The last sentence is rejected as constituting argument.

28. Paragraph 33: The last sentence is accepted in substance.

    The remainder is rejected as subordinate to the facts found.

29. Paragraphs 34: The first through the fourth sentences are

    accepted in substance. The last two sentences are rejected as not supported by the evidence. The remainder is rejected as constituting argument.

30. Paragraphs 35-38: Accepted in substance.

31. Paragraph 39: The second sentence is rejected as

    subordinate to the facts found. The remainder is accepted in substance.

32. Paragraph 40: The first sentence is accepted in substance.

    The remainder is rejected as unnecessary.

33. Paragraph 41: Accepted in substance.

34. Paragraph 42: Accepted in substance that Respondents met on

    November 4, 1985 and discovered the abnormality in the x-ray.

35. Paragraph 43: The last phrase of the last sentence is

    rejected as unnecessary. The remainder is accepted in substance.

36. Paragraph 44: Accepted.

37. Paragraph 45: Accepted in substance.

38. Paragraph 46: The evidence did not establish that Rene

    Bravo saw Patient C.W. The remainder is irrelevant based on the findings of fact.

39. Paragraphs 47-49: Accepted in substance.

Respondents' Proposed Findings of Fact.

1. Paragraphs 1-3: Accepted.

2. Paragraphs 4-6: Accepted in substance.

3. Paragraph 7: The last sentence is accepted. The first

   sentence is rejected to the extent that the evidence does not establish that either Respondent gave either claim form for P.W. to Menendez. Given that one of the claim forms was not generated until after Menendez resigned, at least one of the forms could not have been given to Menendez. It is accepted that Menendez did not recognize the signature on one of the claims as his.

4. Paragraph 8: Accepted in substance.

5. Paragraph 9: The last sentence is rejected as not necessary. The remainder is accepted in substance.

6. Paragraph 10-11: Rejected as subordinate to the facts found.

7. Paragraph 12: The first sentence is accepted. The second

   sentence is rejected as unnecessary.

8. Paragraph 13: Rejected as subordinate to the facts found.

9. Paragraph 14: Accepted in substance.

10. Paragraph 15: Accepted that the second billing was a

    rebilling for services for which no payment had been received. Based on the bill under Dr. Ordoqui's name, it appears that the first bill was under Menenedez's name and the second bill was under Dr. Ordoqui's name.

11. Paragraphs 16-23: Accepted in substance.

12. Paragraph 24: Accepted in substance that neither Respondent

    examined C.W. on October 16, 1985.

13. Paragraph 25: Rejected as subordinate to the facts found.

14. Paragraph 26: The first sentence is accepted in substance.

    The second sentence is accepted in substance to the extent that the use of a form per se does not constitute notification below the prevailing standard of care.

15. Paragraph 27: Accepted in substance.

16. Paragraph 28: Rejected as irrelevant since the Respondents

    adopted that method to inform the patients and by sending it out under their signature became responsible for the care of the patient.

17. Paragraph 29: Accepted in substance that it was customary

    for the Respondents.

18. Paragraphs 30-31: Accepted in substance.

19. Paragraph 32: Rejected as subordinate to the facts found.

20. Paragraph 33: Accepted in substance.

21. Paragraph 34: The first sentence is rejected as not

    supported by the evidence. The second sentence is accepted in substance except as to treated.

22. Paragraphs 35-36: Rejected as not supported by the evidence.

    COPIES FURNISHED:

    
    

    Joseph A. Garwood, Esquire

    Agency For Health Care Administration 1940 North Monroe Street

    Tallahassee, Florida 32399-0792

    
    

    Kenneth J. Metzger, Esquire

    Agency For Health Care Administration 1940 North Monroe Street

    allahassee, Florida 32399-0792

    
    

    Harold M. Braxton, P.A. Suite 400, One Datran Center

    9100 South Dadeland Boulevard Miami, Florida 33156-7815

    
    

    Dr. Marm Harris Executive Director Board of Medicine

    1940 North Monroe Street Tallahassee, Florida 32399-0770

    
    

    Jerome W. Hoffman, Esquire General Counsel

    Agency For Health Care Administration 2727 Mahan Drive

    Tallahassee, Florida 32309

    
    

    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.

    ================================================================= AGENCY FINAL ORDER

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

    
    

    STATE OF FLORIDA

    AGENCY FOR HEALTH CARE ADMINISTRATION BOARD OF MEDICINE

    
    

    AGENCY FOR HEALTH CARE

    ADMINISTRATION, BOARD OF AHCA CASE NOS: 90-03388 MEDICINE, 93-08170

    DOAH CASE NOS: 94-2142

    v. 94-3430

    LICENSE NO: ME 0013626 PETER R. GENOVESE, M.D., AHCA CASE NOS: 90-06831

    93-08169

    and DOAH CASE NOS: 94-3757

    94-3759

    ALAN K. ROBERTS, M.D., LICENSE NO: ME 0030398

    
    

    Respondents.

    /

    
    

    FINAL ORDER

    
    

    THIS MATTER was heard by the Board of Medicine (hereinafter Board) pursuant to Section 120.57(1)(b)10., Florida Statutes, on February 3, 1996, in Tallahassee, Florida, for consideration of the Hearing Officer's Recommended Order, Respondent's Exceptions to the Recommended Order, Petitioner's Response to Respondent's Exceptions and Petitioner's Exceptions to the Recommended Order (Attached hereto as App. A, B, C and D), in the case of Agency for Health Care Administration, Board of Medicine v. Peter R. Genovese, M.D., and Alan K. Roberts, M.D.. At the hearing before the Board, the Petitioner was represented by Joseph Garwood, Senior Attorney. The Respondents were not present and were represented by Harold Braxton, Esquire. Upon consideration of the Hearing Officer's Recommended Order and after review of the complete record and having been otherwise fully advised in its premises, the Board makes the following findings and conclusions:

    
    

    RULING ON PETITIONER'S EXCEPTIONS TO FINDINGS OF FACT

    
    

    1. The Petitioner took exception to the findings of fact in paragraphs 29, 31, 33, 35 and 37 of the Hearing Officer's Recommended Order, which found that someone at the Sunshine Medical Center actually provided the services, based only on the testimony of the Respondents. The Petitioner argued such findings are based upon hearsay and cannot support a finding of fact.

       
       

    2. The Petitioner's Exceptions to the Recommended Order are rejected, as the Hearing Officer's findings were supported by competent, substantial evidence in the record. The Respondents testified that they reviewed the records of their clinic and that the services were provided to the patients on each occasion when they were mistakenly billed under Dr. Menendez's name.

RULINGS ON RESPONDENT'S EXCEPTIONS TO FINDINGS OF FACT

1. The Respondents took exception to the findings of fact in paragraphs 22 of the Hearing Officer's Recommended Order, that the Respondent's became involved in the patient's care by sending a letter to the patient notifying her of her examination results, even though the Respondent's signature was pre- stamped. The Respondents' exception is rejected. The Hearing Officer's finding that the Respondents signing of a letter to the patient, even if pre-stamped, involved the Respondents in the patients care, was supported by competent substantial evidence in the record, including the records themselves and credible expert testimony.

   
   

2. The Respondents took exception to the Hearing Officer's findings of fact in paragraph 23 of the Recommended Order. The Respondent's argument that the Agency's expert did not testify to the prevailing standard of care was rejected by the Hearing Officer. The Agency's expert was clearly testifying to the standard of care in 1985, as the care occurred in 1985 and there was expert testimony regarding the Respondents' letters, which were dated in 1985.

FINDINGS OF FACT

1. The Hearing Officer's Recommended Findings of Fact are approved and adopted and are incorporated herein by reference as the Findings of Fact of the Board in this cause.

   
   

2. There is competent, substantial evidence to support the Board's findings herein.

RULING ON PETITIONER'S EXCEPTIONS TO CONCLUSIONS OF LAW

1. The Petitioner took exception to the Conclusions of Law in paragraphs 46, 47, 48, 49 and 50 of the Hearing Officer's Recommended Order, which concluded that the Respondent's did not violate sections 458.331(1)(k) or (n), Florida Statutes.

   
   

2. The Petitioner's argument that the Hearing Officer improproperly considered hearsay evidence to support the finding that the services were in fact performed is rejected for the reasons set forth above. Accordingly, the Petitioner's exceptions to paragraphs 46, 47, 48, 49 and 50 are rejected.

RULING ON RESPONDENT'S EXCEPTIONS TO CONCLUSIONS OF LAW

1. The Respondents took exception to the Hearing Officer's Conclusions of Law in paragraphs 52 and 54 of the Recommended Order, which found that the Respondents were in violation of sections 458.331(1)(m) and (t), Florida Statutes.

   
   

2. The Respondent's exceptions to Conclusions of Law 52 and 54 were based upon exceptions to findings of fact set forth above, which were rejected. Accordingly, Respondents' exceptions to paragraphs 52 and 54 are rejected based upon the reasons set forth in the Petitioner's Response to Respondent's exceptions, and because these Conclusions of Law are based upon findings of fact which were adopted by the Board.

CONCLUSIONS OF LAW

1. The Board has jurisdiction over the parties and subject matter of this case pursuant to Section 120.57 and Chapter 458, Florida Statutes.

   
   

2. The findings of fact set forth above establish that the Respondents have violated Sections 458.331(1)(m) and (t), Florida Statutes as alleged in the Administrative Complaint.

   
   

3. The findings of fact set forth above do not establish that the Respondent's are guilty of violating Sections 458.331(1)(n) and (k), Florida Statutes.

   
   

4. The Conclusions of Law in the Recommended Order are approved and adopted and incorporated herein.

REQUEST FOR STAY

The Respondents' Motion to Stay the Final Order in this cause, made at the hearing on this matter, was denied by the Board.

DISPOSITION

Based upon the Recommended Findings of Fact and Conclusions of Law, and the Hearing Officer's recommended penalty.

WHEREFORE, it is found, ordered and adjudged that the Respondent is guilty of violating Section 458.331(1)(m) and (t) of the Administrative Complaint, and pursuant to Rule 59R-8, F.A.C., the Board of Medicine imposes the following:

1. The Respondents, Peter R. Genovese M.D., and Kenneth Alan Roberts, M.D. shall each receive a REPRIMAND from the Board of Medicine.

   
   

2. Within thirty (30) days of the filing of the Final Order in this cause, the Respondents, Peter R. Genovese, M.D., and Kenneth Alan Roberts, M.D., shall each pay an administrative fine in the amount of three thousand ($3,000) dollars to the Board of Medicine.

   
   

3. Upon the filing of the Final Order in this cause, the licenses to practice medicine in the State of Florida of Respondents, Peter R. Genovese, M.D., and Kenneth Alan Roberts, M.D., shall be placed on probation for a period of one (1) year, subject to the following terms and conditions:

   
   

   1. Respondents shall comply with all state and federal statutes, rules, and regulations pertaining to the practice of medicine, including 455, 458, and 893, Florida Statutes, and Chapter 59R, Florida Administrative Code.

      
      

   2. Respondents shall appear before the Probation Committee at the first meeting after said probation commences, at the last meeting of the Probation Committee preceding termination of probation, and at such other times requested by the Committee. Respondent shall be notice by Board staff of the date, time and place of the Board's Probation Committee meeting whereat Respondents appearance is required. Failure of Respondents to appear as requested or directed shall be considered a violation of the terms of the Final Order, and shall subject the Respondents to disciplinary action.

   3. In the event the Respondent(s) leaves the State of Florida for a period of thirty days or more or otherwise does not engage in the active practice of medicine in the State of Florida, then certain provisions of Respondent(s) probation (and only those provisions of said probation) shall be tolled as enumerated below and shall remain in a tolled status until Respondent(s) returns to active practice in the State of Florida. Respondent(s) must keep current residences and business addresses on file with the Board. Respondent(s) shall notify the Board within ten (10) days of any changes of said addresses. Furthermore, Respondent(s) shall notify the Board within ten (10) days in the event that Respondent(s) leave(s) the active practice of medicine in Florida.

      
      

   4. In the event that Respondent(s) leave(s) the active practice of medicine in this state for a period of thirty days or more, the following provisions of his probation shall be tolled:

      
      

      1. The time period of probation shall be tolled.

      2. The provisions regarding supervision, whether direct or indirect by another physician.

      3. The provisions regarding preparation of investigative reports detailing compliance.

         
         

   5. In the event that Respondent(s) leave(s) the active practice of medicine for a period of one year or more, the Board's Probationer's Committee may require Respondents to appear before the Probationer's Committee and demonstrate their ability to practice medicine with skill and safety to patients prior to resuming the practice of medicine in this State.

      
      

   6. Respondents shall not practice except under the indirect supervision of a physician(s) fully licensed under Chapter 458 who has been approved by the Board or its Probationer's Committee. Absent provision for and compliance with the terms regarding temporary approval of a monitoring physician(s), Respondents shall cease practice and not practice until the Board's Probationer's Committee. approves a monitoring physician(s). Respondents shall have the monitoring physician(s) with him at his first probation appearance before the Board's Probationer's Committee. A failure of the Respondents or their monitoring physician(s) to appear at the scheduled probation meeting shall constitute a violation of the Board's Final Order. Failure of the Respondents or the monitoring physician(s) to appear at the scheduled Probation Committee shall constitute a violation of this Final Order. Prior to approval of the monitoring physician(s) by the Board's Probationer's Committee, the Respondents shall provide to the monitoring physician(s) a copy of the Administrative Complaint and Final Order filed in this case. Prior to the approval of the monitoring physician(s) by the Board's Probationer's Committee, Respondents shall submit to the Board's Probationer's Committee a current curriculum vitae and description of the current practice from the proposed monitoring physician(s). Said materials shall be received in the Board office no later than fourteen days before the Respondent's first scheduled probation appearance. The attached definition of a monitoring physician is incorporated herein. The responsibilities of a (the) monitoring physician(s) shall include:

      
      

      1. Submit semiannual reports, in affidavit form, which shall include:

         
         

         1. Brief statement of why physician is on probation.

         2. Description of probationer's practice.

         3. Brief statement of probationer's compliance with terms of probation.

         4. Brief description of probationer's relationship with monitoring physician.

         5. Detail any problems which may have arisen with probationer.

            
            

            Respondents shall be responsible for ensuring that the monitoring physician(s) submit(s) the required reports.

            
            

      2. Be available for consultation with Respondents whenever necessary, at a frequency of at least once per month,.

         
         

      3. Review at least 10 percent percent of each Respondent's patient medical records selected on a random basis at least once every month. In order to comply with this responsibility of random review, the monitoring physician(s) shall go to Respondent's office(s) once every other month. At that time, the monitoring physician(s) shall be responsible for making the random selection of the records to be reviewed by the monitoring physician(s).

         
         

      4. Report to the Board any violations by the probationers of Chapter 455 and 458, Florida Statutes, and the rules promulgated pursuant thereto.

      
      

   7. The Board shall confer authority on the Chairman of the Board's Probationer's Committee to temporarily approve Respondents' Supervisory/monitoring physician(s). In order to obtain this temporary approval, Respondents shall submit to the Chairman of the Board's Probationer's Committee the name and curriculum vitae of the proposed supervising/ monitoring physician(s). This information shall be furnished to the Chairman of the Board's Probationer's Committee by way of the Board of Medicine's executive director, within 48 hours after Respondents receive the Final Order in this matter. This information may be sent via facsimile to the Board of Medicine at (904) 922-3040 or may be sent by overnight mail or hand delivery to the Board of Medicine at the Agency for Health Care Administration, 1940 North Monroe Street, Tallahassee, Florida 32399-0750. In order to provide time for Respondents' proposed supervisory/monitoring physician(s) to be approved or disapproved by the Chairman of the Board's Probationer's Committee, Respondents shall be allowed to practice medicine while approval is being sought, but only for a period of five working days after Respondent receives the Final Order. If Respondents' supervising/monitoring physician(s) (has) have not been approved during that time frame, then Respondent(s) shall cease practicing until such time as the Supervising/monitoring physicians is (are) temporarily approved. In the event that the proposed monitoring/supervising physician(s) are not approved, then Respondents shall cease practicing immediately. Should Respondent's monitoring/supervising physician(s) be approved, said approval shall only remain in effect until the next meeting of the Board's Probationer's Committee. Absent said approval, Respondent shall not practice medicine until a monitoring/supervising physician is approved.

      
      

   8. In view of the need for ongoing and continuous monitoring or supervision, Respondents shall also submit the curriculum vitae and name of an alternate Supervising/monitoring physician(s) to be approved by the Board or its Probationer' Committee. Such physician(s) shall be licensed pursuant to Chapter 458, Florida Statutes, and shall have the same duties and responsibilities as specified for Respondents' monitoring/supervising physician(s) during those periods of time which Respondents' monitoring/ supervising physician(s) is (are) temporarily unable to provide supervision. Prior to practicing under the

      indirect supervision of the alternate monitoring physician(s) or the direct supervision of the alternate supervising physician(s), Respondents shall so advise the Board's Probationer's Committee in writing. Respondents shall further advise the Board's Probationer's Committee in writing of the period of time during which Respondents shall practice under the supervision of the alternate monitoring/supervising physician(s). Respondents shall not practice unless he is under the supervision of either the approved supervising/monitoring physician(s) or the approved alternate.

      
      

   9. Respondents shall submit semiannual reports in affidavit form, the contents of which shall be specified by the Board. The reports shall include:

      
      

      1. Brief statement of why physician is on probation.

      2. Practice location.

      3. Describe current practice (type and composition).

      4. Brief statement of compliance with probationary terms.

      5. Describe relationship with monitoring/supervising physician.

      6. Advise Board of any problems.

      
      

   10. Respondents shall pay all costs necessary to comply with the terms of the Final Order issued based on this proceeding. Such costs include, but are not limited to, the costs of preparation of the investigative reports detailing compliance with the terms of the Final Order entered in this case, the cost of analysis of any blood or urine specimens submitted pursuant to the Final Order entered as a result of this proceeding, and administrative costs directly associated with Respondent's probation. See Section 458.331(2), Florida Statutes.

This Final Order becomes effective upon its filing with the Clerk of the Agency for Health Care Administration.

NOTICE

The parties are hereby notified pursuant to Section 120.59(4), Florida Statutes, that an appeal of this Final Order may be taken pursuant to Section 120.68, Florida Statutes, by filing one copy of a Notice of Appeal with the Clerk of the Agency for Health Care Administration and one copy of a Notice of Appeal with the required filing fee with the District Court of Appeal within thirty (30) days of the date this Final Order is filed.

DONE and ORDERED this 4th DAY OF March, 1996.

BOARD OF MEDICINE

GARY E. WINCHESTER, M.D. VICE-CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order and its attachments have been forwarded by U.S. Mail to Peter R. Genovese, M.D., 907 S. America Way, Miami, Florida 33132, Alan Kenneth Roberts, M.D., 6341 Sunset Drive, Miami, Florida 33143-4842, Susan B. Kirkland, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, and by hand delivery to Larry G. McPherson, Jr., Chief Medical Attorney, Agency for Health Care Administration, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 on this 6th day of March, 1996.

Marm Harris, Ed. D. Executive Director

AMENDED CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Peter R. Genovese, M.D., 907 S. America Way, Miami, Florida 33132, Susan B. Kirkland, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399- 1550, and by interoffice delivery to Larry G. McPherson, Chief Medical Attorney, Agency for Health Care Administration, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, at or before 5:00 p.m., this 6th day of March, 1996.

Docket for Case No: 94-002142

Orders for Case No: 94-002142