STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE )
ADMINISTRATION, )
)
)
Petitioner, )
)
vs. ) CASE NO. 94-5451
) CRAIG WILLIAM HERMAN, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on September 19, 1995, at Miami, Florida, before Errol H. Powell, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Hugh R. Brown, Esquire
Agency for Health Care Administration 1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-0792
For Respondent: Mark A. Dresnick, Esquire
Grand Bay Plaza, Suite 201 2665 South Bayshore Drive Miami, Florida 33130
STATEMENT OF THE ISSUES
The issue for determination is whether respondent committed the offenses set forth in the administrative complaint and, if so, what action should be taken.
PRELIMINARY STATEMENT
On July 26, 1994, the Agency for Health Care Administration, Board of Medicine (Petitioner) filed a three-count administrative complaint against Craig William Herman, M.D. (Respondent) charging Respondent with: Count One -- violating 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, test results, records of drugs prescribed, dispensed, or administered, and reports of consultations and hospitalization; Count Two -- violating Section 458.331(1)(n), Florida Statutes, by exercising influence on the patient or client in such a manner as to exploit the patient or client for financial gain of the licensee or of a third party, which shall include, but not be limited to,
the promoting or selling of services, goods, appliances, or drugs; Count Three
-- violating Section 458.331(1)(t), Florida Statutes, by 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. Through counsel, on September 26, 1994, Respondent disputed the allegations of fact in the administrative complaint and requested a formal hearing. On September 30, 1994, this matter was referred to the Division of Administrative Hearings.
At hearing, Petitioner presented the testimony of one witness and entered two exhibits into evidence. Respondent testified in his own behalf and entered three exhibits into evidence, with one exhibit being deposition testimony.
Additionally, Respondent proffered one exhibit.
A transcript of the formal hearing was ordered. 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. Two extensions of time were granted to allow the parties additional time in which to file their post-hearing submissions. The parties submitted proposed findings of fact which are addressed in the appendix to this recommended order.
FINDINGS OF FACT
Craig William Herman, M.D. (Respondent) is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME0043959. Respondent has been licensed in Florida since 1984.
Respondent is Board certified in urology.
On March 27, 1992, Patient E. G., a forty-five year old male, presented to Respondent for a male fertility evaluation. When a patient presents for an infertility evaluation, it is appropriate for a urologist to obtain a urologic history and to evaluate urologic problems.
Patient E.G.'s history was consistent with his chief complaint of infertility. His history includes that, during his seven years of marriage to his first wife no children were conceived even though no contraceptives were used and that, after remarrying, Patient E.G.'s second wife was not able to conceive even though she had a child from her previous marriage.
Respondent's further evaluation of Patient E.G. on March 27, 1992, revealed that Patient E.G. suffered from urinary hesitancy and nocturia two to four times per night.
The nocturia and urinary hesitancy are symptoms of an outlet obstruction.
Additionally, on March 27, 1992, Respondent performed a physical examination including a digital rectal examination. The examination revealed, among other things, that Patient E.G. had a firm 2+ prostate and bilateral varicoceles.
A firm 2+ prostate indicates an enlarged and suspicious prostate.
Respondent also performed various tests on this first visit. He took a urine culture and performed a urinalysis, a bladder ultrasound scan (echography) and a prostate ultrasound scan (transrectal ultrasound).
Respondent had a concern for possible prostate infection and outlet obstruction. The bladder ultrasound, which is a non-invasive procedure, was performed to address this concern and was medically indicated.
Because of the abnormality of the prostate, the prostate ultrasound was performed to evaluate the prostate and was medically indicated.
The prostate ultrasound or transrectal ultrasound of the prostate revealed a hypoechoic region of the prostate. Such a result was positive and Respondent interpreted it as suggestive of a lesion or carcinoma of the prostate.
Patient E.G.'s urine culture, urinalysis, and bladder ultrasound scan produced normal results.
Included as a procedure on this first visit was a semen analysis. Respondent sent Patient E.G. to Holy Cross Hospital for the analysis. The results of the analysis, which were received on March 30, 1992, reported a low sperm count and low motility.
On April 3, 1992, Patient E.G. returned to Respondent for a follow-up appointment. On this second visit, Respondent performed or ordered several tests on Patient E.G.: repeat urinalysis, repeat urine culture, repeat prostate ultrasound, a prostate biopsy, renal and scrotal ultrasound, SMAC-25, free testosterone, prolactin, prostate specific antigen (PSA) blood test, and uroflometry.
The prostate biopsy was medically indicated due to Patient E.G.'s firm prostate discovered during the digital rectal examination and due to the observation of the hypoechoic region. Respondent performed the biopsy, using the transrectal prostate ultrasound as guidance.
The biopsy revealed an abnormal, benign growth known as hyperplasia.
As Patient E.G.'s transrectal biopsy procedure was performed in Respondent's office, Respondent was not required to prepare a biopsy operative report. A copy of the pathology report for the biopsy procedure was in Respondent's medical records for Patient E.G.
The scrotal ultrasound, as an evaluative procedure for a fertility patient, was medically indicated. The ultrasound was used as an objective procedure to review Patient E.G.'s bilateral varicoceles.
The hormonal tests, consisting of testosterone and prolactin, were medically indicated as part of the fertility evaluation.
An evaluation of Patient E.G.'s hesitancy was medically indicated, using the uroflometry as the evaluative procedure. The results were abnormal which suggested obstructive uropathy or bladder outlet syndrome.
Because of Patient E.G.'s abnormal uroflow results and enlarged prostate, Respondent determined that Patient E.G.'s upper and lower urologic tract should be examined. The renal ultrasound was medically indicated to assist in determining whether an obstruction existed within the upper urologic tract.
The results from the renal ultrasound revealed a suspicious cyst or mass in Patient E.G.'s left kidney. A follow-up ultrasound on the left kidney was medically indicated. The second ultrasound was performed on April 13, 1992.
The results of all the remaining tests were within normal limits.
Subsequently, on April 13, 1992, Patient E.G. returned to Respondent for another follow-up appointment. On this third visit, Respondent performed the following procedures: repeat urinalysis, repeat urine culture, and repeat ultrasound scan of the left renal unit (kidney).
Bilateral renal ultrasounds are more common than an ultrasound of only the left kidney. However, no cost evidence was presented regarding the cost of a bilateral ultrasound versus a unilateral renal ultrasound.
Patient E.G.'s ultrasound scans and tests performed on April 13, 1992, all produced normal results.
All of the ultrasound examinations, except for one renal examination, conducted during Patient E.G.'s three visits were performed in Respondent's office.
On all three visits, Respondent ordered Patient E.G.'s urine to be tested. The tests consisted of a urinalysis, culture, and sensitivity which are diagnostics procedures used to detect infection. If there is a concern about an infection, it is medically indicated to order these tests during each visit.
Respondent had a concern regarding infection on each office visit. Patient E.G.'s infertility, his exhibited urologic symptomatology and his low semen volume are indicators of infection. Furthermore, after the biopsy, which is an invasive procedure, testing is appropriate to determine the presence of an infection. The urinalysis, culture and sensitivity were all medically indicated tests for each of Patient E.G.'s visits.
Respondent's medical records included the specific laboratory results of each test which was performed on Patient E.G. As to the ultrasounds, Respondent is not required to prepare an independent written evaluation of an ultrasound film when the films are present in the chart unless a formal reading is requested. The ultrasound films were present in the chart, and no formal reading of the films was requested.
Respondent practiced medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar Board certified urologist as being acceptable under similar conditions and circumstances.
Respondent's medical records justify the course of treatment of Patient E.G.
Respondent did not exploit Patient E.G. for financial gain.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto, pursuant to Subsection 120.57(1), Florida Statutes.
License revocation proceedings are penal in nature. The burden of proof is on the Petitioner to establish the truthfulness of the allegations of the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Section 458.331, Florida Statutes (1991), provides in pertinent part:
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
* * *
Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to past histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations.
Exercising influence on the patient or client in such a manner as to exploit the patient or client for financial gain of the licensee or of a third party, which shall include, but not
be limited to, the promoting or selling of services, goods, appliances, or drugs.
* * *
(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.
* * *
When the board [Board of Medicine] 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:
* * *
Revocation or suspension of a license.
Restriction of practice.
Imposition of an administrative fine not
to exceed $5,000 for each count or separate offense.
Issuance of a reprimand.
Placement of the physician on probation for a period of time and subject to such conditions as the board may specify....
* * *
In determining what action is appropriate, the board must first consider what sanctions are necessary to protect the public or to compensate the patient.
Petitioner argues that: (1) Respondent's medical records fail to justify the performance of the initial renal ultrasound, bladder ultrasound, transrectal ultrasound, scrotal ultrasound, or uroflometry test, thereby violating Subsection 458.331(1)(m), Florida Statutes; (2) Respondent performed and billed for unnecessary tests and examinations when he knew or should have known that the tests were unnecessary, premature, or not indicated for Patient E.G., thereby violating Subsection 458.331(1)(n), Florida Statutes; and (3) Respondent wrongly performed the renal ultrasounds, scrotal ultrasound, bladder ultrasounds and uroflometry tests, and transrectal ultrasounds prior to completing an appropriate initial infertility evaluation, thereby violating Subsection 458.331(1)(t), Florida Statutes. Petitioner's argument is not persuasive.
Petitioner failed to demonstrate by clear and convincing evidence that Respondent violated Subsections 458.331(1)(m), (n), and (t), Florida Statutes. The evidence shows that: (1) Respondent's medical records justify the course of treatment of Patient E.G.; (2) Respondent did not exercise influence over Patient E.G as to exploit him for financial gain; and (3) Respondent practiced medicine within the standard of care which is recognized by a reasonably prudent similar physician (Board certified urologist) as being acceptable under similar conditions and circumstances.
Based on the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that the Board of Medicine dismiss Counts One, Two and Three of
the administrative complaint.
DONE AND ENTERED this 5th day of April, 1996, in Tallahassee, Leon County, Florida.
ERROL H. POWELL, 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 5th day of April, 1996.
APPENDIX
The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact
Partially accepted in finding of fact 1.
Partially accepted in finding of fact 2.
Partially accepted in finding of fact 3.
Partially accepted in finding of fact 3.
Partially accepted in finding of fact 5.
Partially accepted in finding of fact 9.
Partially accepted in finding of fact 13.
Partially accepted in finding of fact 12.
Partially accepted in finding of fact 14.
Partially accepted in finding of fact 14.
Partially accepted in finding of fact 15.
Partially accepted in finding of fact 15.
Partially accepted in finding of fact 17.
Partially accepted in finding of fact 25.
Partially accepted in finding of fact 25.
Partially accepted in finding of fact 27.
Rejected as being argument, or a conclusion of law.
Partially accepted in finding of fact 3.
Rejected as being contrary to the greater weight of the evidence.
Partially accepted in finding of fact 7.
Partially accepted in findings of fact 7, 13, and 24.
Partially accepted in findings of fact 15 and 24.
Partially accepted in findings of fact 7 and 8.
Rejected as being contrary to the greater weight of the evidence.
Rejected as being contrary to the greater weight of the evidence.
Rejected as being contrary to the greater weight of the evidence.
Partially accepted in finding of fact 28.
Rejected as being contrary to the greater weight of the evidence.
Rejected as being contrary to the greater weight of the evidence.
Rejected as being contrary to the greater weight of the evidence.
Respondent's Proposed Findings of Fact
Partially accepted in finding of fact 1.
Partially accepted in finding of fact 2.
Rejected as being unnecessary, argument, or conclusion of law.
Rejected as being unnecessary, argument, or conclusion of law.
Rejected as being unnecessary, argument, or a conclusion of law.
Rejected as being unnecessary, argument, or a conclusion of law.
Rejected as being unnecessary, argument, or a conclusion of law.
Partially accepted in finding of fact 3.
Partially accepted in finding of fact 4.
Partially accepted in finding of fact 5.
Partially accepted in finding of fact 7.
Partially accepted in finding of fact 8.
Partially accepted in findings of fact 6, 8, 10 and 11.
Partially accepted in finding of fact 6.
Partially accepted in findings of fact 6, 9 and 10.
Partially accepted in finding of fact 10.
Partially accepted in findings of fact 9 and 11.
Rejected as being unnecessary, argument, or a conclusion of law.
Rejected as being unnecessary, argument, or a conclusion of law.
Partially accepted in finding of fact 12.
Rejected as being unnecessary, argument, or a conclusion of law.
Partially accepted in findings of fact 15 and 16.
Rejected as being unnecessary, argument, or a conclusion of law.
Partially accepted in finding of fact 16.
Partially accepted in finding of facts 12 and 17.
Partially accepted in finding of facts 15 and 19.
Partially accepted in finding of fact 19.
Partially accepted in findings of fact 15 and 20.
Partially accepted in findings of fact 15 and 21.
Partially accepted in finding of fact 22.
Rejected as being unnecessary, argument, or a conclusion of law.
Partially accepted in findings of fact 15 and 22.
Partially accepted in finding of fact 23.
Partially accepted in finding of fact 26.
Partially accepted in finding of fact 29.
Partially accepted in finding of fact 29.
Partially accepted in finding of fact 30.
Partially accepted in finding of fact 30.
Rejected as being unnecessary, argument, or a conclusion of law.
Partially accepted in finding of fact 34.
Partially accepted in finding of fact 34.
Partially accepted in findings of fact 10, 11, 16, 20, 21, 22, 23, 29, 30, and 34.
Rejected as being unnecessary, argument, or a conclusion of law.
Partially accepted in finding of fact 32.
Partially accepted in finding of fact 33.
Partially accepted in finding of fact 31.
Partially accepted in finding of fact 18.
Partially accepted in finding of fact 33.
NOTE: Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, cumulative, contrary to the greater weight of the evidence, argument, or a conclusion of law.
COPIES FURNISHED:
Hugh R. Brown Staff Attorney
Agency for Health Care Administration, Board of Medicine
1940 N. Monroe Street, Suite 60
Tallahassee, Florida 32399-0792
Mark A. Dresnick, Esquire Grand Bay Plaza, Suite 201 2665 South Bayshore Drive Miami, Florida 33130
Jerome W. Hoffman, General Counsel Agency for Health Care
Administration 2727 Mahan Drive
Tallahassee, Florida 32309
Sam Power, Agency Clerk Agency for Health Care
Administration
Fort Knox Building 3, Suite 3431
2727 Mahan Drive
Tallahassee, Florida 32308
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.
| Issue Date | Proceedings |
|---|---|
| Sep. 16, 1996 | Corrected Final Order filed. |
| Jun. 28, 1996 | Final Order filed. |
| Apr. 05, 1996 | Recommended Order sent out. CASE CLOSED. Hearing held 09/19/95. |
| Jan. 31, 1996 | Petitioner`s Proposed Recommended Order filed. |
| Jan. 31, 1996 | Respondent`s Proposed Recommended Order filed. |
| Jan. 12, 1996 | Second Order Granting Extension of Time sent out. (Motion for Extension of Time GRANTED; parties have until 1-31-96 to file PROs) |
| Jan. 09, 1996 | Respondent`s Agreed Motion for An Extension of Time for The Filing of The Proposed Recommended Orders filed. |
| Nov. 29, 1995 | Transcript of the Proceedings w/cover letter filed. |
| Nov. 27, 1995 | Order Granting Extension of Time sent out. (Proposed Recommended Order`s due 1/19/96) |
| Nov. 22, 1995 | (Petitioner) Agreed Motion for Extension of Time to File Proposed Recommended Orders filed. |
| Sep. 19, 1995 | CASE STATUS: Hearing Held. |
| Sep. 15, 1995 | BY ORDER of THE COURT (Emergency petition for writ of prohibition is denied) filed. |
| Sep. 13, 1995 | Answer to Complaint sent out. |
| Sep. 13, 1995 | (Craig Herman) Emergency Petition for Writ of Prohibition; Appendix to Emergency Petition for Writ of Prohibition filed. |
| Sep. 12, 1995 | (Petitioner) Response to Motion to Dismiss; Petitioner`s Exhibit A filed. |
| Sep. 11, 1995 | (Respondent) Motion for Expedited Hearing On Dr. Herman`s Motion to Dismiss for Lack of Subject Matter Jurisdiction and In The Alternative Motion to Abate This Proceeding Pending Resolution of The Constitutionality of The Agency for Health Care Administra |
| Sep. 11, 1995 | (Respondent) Motion to Dismiss for Lack of Subject Matter Jurisdiction and In The Alternative Motion to Abate This Proceeding Pending Resolution of The Constitutionality of The Agency for Health Care Administration By The Florida Supreme Court W/Attachmen |
| Sep. 07, 1995 | (Joint) Pre-Hearing Statement filed. |
| Jun. 16, 1995 | Notice of Hearing sent out. (hearing set for Sept. 19-20, 1995; 10:30am; Miami) |
| Jun. 15, 1995 | Notice of Serving Petitioners Second Set of Request for Admissions, Interrogatories and Production of Documents to Respondent filed. |
| Jun. 14, 1995 | Joint Status Report and Motion to Reschedule Final Hearing filed. |
| May 22, 1995 | (Order from the fourth DCA) Petition for Writ of Certiorari is denied filed. |
| May 17, 1995 | Petitioner`s Notice of Filing a Response to Respondent`s Supplemental Interrogatories and Request for Production filed. |
| May 10, 1995 | Order Granting Motion for Stay Pending Appellate Review sent out. (motion for stay granted) |
| May 09, 1995 | (Petitioner) Response to Respondent's Motion to Stay filed. |
| May 04, 1995 | Respondent's Request for Oral Argument In Support of Respondent's Motion to Stay Pending Review filed. |
| May 04, 1995 | Respondent's Motion for Stay Pending Review filed. |
| Apr. 24, 1995 | Acknowledgment of Petition for Writ of Certiorari filed. |
| Apr. 20, 1995 | (Petitioner) Petition for Writ of Certiorari; Appendix to Petition for Writ of Certiorari filed. |
| Apr. 04, 1995 | Order sent out. (petitioner's motion to limit respondent's testimonyis granted) |
| Mar. 24, 1995 | Dr. Herman's Response to AHCA's Motion for Order Compelling Discovery, or in the Alternative, to Limit Respondent's Testimony |
| Mar. 23, 1995 | Respondent's Clarification of Available Dates for Rescheduled Formal Hearing filed. |
| Mar. 20, 1995 | Notice of Hearing sent out. (hearing set for 6/15/95; 9:00am; Miami) |
| Mar. 14, 1995 | (Petitioner) Status Report And Request to Reschedule Hearing filed. |
| Jan. 30, 1995 | Order of Abeyance sent out. (Parties to file status report by 4/30/95) |
| Jan. 27, 1995 | Motion to Hold in Abeyance (Petitioner) filed. |
| Jan. 17, 1995 | (Petitioner) Motion to Compel, or, In the Alternative, to Limit Respondent's Testimony; Notice of Serving Petitioners First Set of Request for Admissions, Interrogatories and Production of Documents to Respondent; Petitioner's First Set of Request for Adm |
| Jan. 03, 1995 | Petitioner`s Notice of Filing an Amended Response to Respondent`s First Set of Interrogatories and Request to Produce; Petitioner`s Amended Response to Respondent`s First Request for Production of Documents; Petitioner`s Amended Response to Respondent`s F |
| Nov. 04, 1994 | Petitioner`s Notice of Serving Answers to Respondent`s First Set of Interrogs. and First Request for Production of Documents to Respondent filed. |
| Oct. 21, 1994 | Order for Prehearing Statement sent out. |
| Oct. 21, 1994 | Notice of Hearing sent out. (hearing set for 2/8/95; 9:00am; Miami) |
| Oct. 17, 1994 | Respondent's Response to Initial Order filed. |
| Oct. 10, 1994 | Notice of Serving Petitioners First Set of Request for Admissions, Interrogatories and Production of Documents to Respondent filed. |
| Oct. 10, 1994 | (Petitioner) Response to Initial Order filed. |
| Oct. 07, 1994 | Initial Order issued. |
| Sep. 30, 1994 | Agency referral letter; Administrative Complaint; Request for Formal Hearing; (AHCA) Notice of Appearance filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 21, 1996 | Agency Final Order | |
| Apr. 05, 1996 | Recommended Order | Petitioner failed to demonstrate by clear and convincing evidence that respondent violated subsections 458.331(1)(m),(n)&(t), Florida Statutes/Dismissal of Admininstrative Complaint |
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs RONALD EVAN WHEELER, M.D., 94-005451 (1994)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs RONALD EVAN WHEELER, M.D., 94-005451 (1994)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs RONALD EVAN WHEELER, M.D., 94-005451 (1994)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs RONALD EVAN WHEELER, M.D., 94-005451 (1994)
