STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 96-2051

)

EDWARDO PUGLIA, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on May 27 and 28, 1998, in Miami, Florida, before Judge Michael M. Parrish, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: John E. Terrell, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Anthony C. Vitale, Esquire, and

Mr. Christopher A. Parrella 799 Brickell Plaza, Suite 700

Miami, Florida 33131 STATEMENT OF THE ISSUES

This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations of misconduct set forth in a three-count Administrative Complaint. The Respondent is

charged with having violated the following statutory provisions: Sections 458.331(1)(k), 458.331(1)(m), and 458.331(1)(n), Florida Statutes.

PRELIMINARY STATEMENT

Following service of the Administrative Complaint, the Respondent timely requested an evidentiary hearing, and the proceeding was duly transferred to the Division of Administrative Hearings for assignment of an administrative law judge. The proceeding was scheduled for hearing in due course. Thereafter, for a variety of reasons, on several occasions the matter was placed in abeyance and previously scheduled hearing dates were continued.

Eventually, the final hearing was conducted in Miami, Florida, on May 27 and 28, 1998. During the course of the final hearing, the Petitioner presented the live testimony of three witnesses and presented the video taped deposition testimony of another witness. The Petitioner also offered six exhibits. The Respondent testified on his own behalf, and also presented the testimony of three other witnesses. The Respondent also offered nine exhibits.1

At the conclusion of the hearing, the Respondent requested sixty days from the filing of the transcript within which to file his proposed recommended order. The Petitioner argued in favor of a shorter period of time. Upon consideration of the arguments, all parties were allowed sixty days from the filing of

the transcript within which to file their proposed recommended orders. The transcript of the hearing was filed with the Division of Administrative Hearings on July 6, 1998. On September 4, 1998, all parties filed their respective proposed recommended orders containing proposed findings of fact and conclusions of law. The proposals submitted by the parties have been carefully considered during the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Respondent is, and has been at all times material to this proceeding, licensed as a physician in the State of Florida, having been issued license number ME 0059304.

2. The Respondent is an experienced physician, having practiced medicine in several jurisdictions over a period of approximately 24 years. The Respondent is a native of Uruguay, where he studied medicine and graduated from medical school in 1974. English is the Respondent's second language. The Respondent began his private medical practice in the State of Florida in 1990.

3. From January of 1992 until February 3, 1993, the Respondent treated patients C. P. and F. P.2 on several occasions. Patient C. P. was approximately 90 years old. His wife, patient F. P., was approximately 80 years old. At all times material, patients C. P. and F. P. were Medicare recipients.

4. On January 12, 1993, the patient C. P. appeared at the Respondent's medical office for examination and treatment. On that day the patient C. P. had a number of complaints and concerns. The Respondent interviewed the patient, and obtained a history from the patient that included the fact that the patient had been hospitalized approximately six months earlier for injuries incurred in an automobile accident. The Respondent also examined the patient.

5. Based on the examination of the patient and on the history obtained from the patient, the Respondent concluded that the patient C. P. needed to have some further testing of his heart rhythm. The Respondent ordered a series of tests which were to be performed with a portable Cardiotrace monitor. A total of five such tests were performed. One of the Cardiotrace tests was performed in the Respondent's office. The other four were performed at patient C. P.'s home by a technician employed by and trained by the Respondent. The Cardiotrace monitor equipment transmitted heart rhythm information by telephone line directly to equipment that prepared a tracing of the heart rhythm. A copy of the rhythm tracing was then transmitted to the Respondent by fax transmission. Five such rhythm tracings regarding the patient C. P. were received by the Respondent. The Respondent reviewed and interpreted each of the rhythm tracings. Subsequently, the Respondent billed Medicare for his review and interpretation of each of the five rhythm tracings regarding the

   patient C. P. The services for which the Respondent billed Medicare in this regard were services that were actually performed.3

6. Based on the examination of the patient and on the history obtained from the patient on January 12, 1993, the Respondent concluded that the patient C. P. also needed some physical therapy. The Respondent referred the patient C. P. for physical therapy services at the Respondent's medical office.

7. The Respondent prepared a physical therapy plan for the patient C. P. The plan provided for the patient to initially receive physical therapy three days per week for three weeks. The plan also provided for the patient to receive six modalities of physical therapy on each treatment day.

8. The Respondent billed Medicare for providing physical therapy to patient C. P. on January 12, 14, 16, 19, 21, 26, 28, and on February 1 and 3, 1993. For each of these physical therapy sessions, the Respondent billed Medicare for six modalities of physical therapy. These modalities included hot or cold pack therapy, therapeutic exercises for thirty minutes, functional activity therapy, ultrasound therapy, massage therapy, and kinetic therapy.

9. The Respondent had two separate rooms in his office dedicated to and equipped for physical therapy. The Respondent had equipment in his physical therapy rooms for all six modalities of physical therapy ordered for the patient C. P.

10. During the time when the Respondent was treating the patient C. P., it was the Respondent's practice to keep separate medical records and physical therapy records for patients who were receiving physical therapy at his medical office. The physical therapy records were kept on forms the Respondent had designed for that purpose. It was also the Respondent's practice at that time to keep the separate records in separate places.

    The Respondent has not been able to locate any records of any physical therapy services that were provided to the patient C. P. The Respondent's medical records for the patient C. P. contain only two references to the physical therapy. On January 12, 1993, there is a brief note to refer the patient to the physical therapy department. On February 3, 1993, there is a note to continue physical therapy. There are no other notes specifically referring to the status of or the justification for the physical therapy. Although the patient C. P. sustained injuries in a motor vehicle accident in July of 1992 which caused him to be hospitalized for several days, the Respondent's medical records contain no mention of that accident.

11. The Respondent's records regarding his care and treatment of the patient C. P. are sufficient to justify the testing of the patient's heart rhythm, which was accomplished by means of the Cardiotrace portable monitor. The Respondent's records regarding his care and treatment of the patient C. P. are

    not sufficient to justify the physical therapy which was ordered by the Respondent.

    CONCLUSIONS OF LAW

    
    

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

13. In a proceeding of this nature, proof greater than a mere preponderance of the evidence must be submitted. Clear and convincing evidence is required. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); McKinney v. Castor, 667 So. 2d 387, 388 (Fla. 1st DCA 1995); Tenbroeck v. Castor, 640 So. 2d 164, 167 (Fla. 1st DCA 1994); Nair v. Department of Business and Professional Regulation, 654 So. 2d 205, 207 (Fla. 1st DCA 1995); Pic N' Save v. Department of Business Regulation, 601 So. 2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So. 2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So. 2d 500 (Fla. 3d DCA 1991); Pascale v. Department of Insurance, 525 So. 2d 922 (Fla. 3d DCA 1988); Section 120.57(1)(h), Florida Statutes. ("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute.").

14. "'[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.'" In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

15. The disciplinary action taken against the licensee may be based only upon those offenses specifically alleged in the administrative complaint. See Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v. Department of State, 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

16. In determining whether Section 458.331(1), Florida Statutes, has been violated in the manner charged in the administrative complaint, one "must bear in mind that it is, in effect, a penal statute. . . . This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department

    of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

17. At all times material to this proceeding, Section 458.331(1), Florida Statutes, included the following as grounds for which disciplinary action could be taken against 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.

    ***

    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 and hospitalizations.

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

18. Count One of the Administrative Complaint charges the Respondent with having violated Section 458.331(1)(k), Florida Statutes. In this regard it is asserted in the Administrative Complaint that "Respondent is guilty of 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 filed claims to Medicare for Patient[s] C. P. and F. P. for services that were not performed." (Emphasis added.)

19. The evidence in this case is insufficient to establish the violation charged in Count One. There is no doubt that the Respondent filed the Medicare claim forms that are at issue here. However, there is no clear and convincing evidence that the Respondent did not perform the services for which he claimed Medicare payment. Further, there is clear and convincing evidence that the Respondent performed some of the services for which he billed Medicare (his review and interpretation of the Cardiotrace rhythm strips) and, although the matter is not entirely free from doubt, the Respondent probably performed the other services for which he billed Medicare (the physical therapy treatments).4 Accordingly, Count One of the Administrative Complaint should be dismissed.

20. Count Two of the Administrative Complaint charges the Respondent with having violated Section 458.331(1)(m), Florida Statutes. In this regard it is asserted in the Administrative Complaint that "Respondent [is] guilty of 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, in that Respondent's [records] did not document treatments billed to Medicare in Patient C. P.'s medical records." (Emphasis added.)

21. The evidence in this case clearly shows that the Respondent's written medical records are insufficient to justify the physical therapy which was ordered by the Respondent for the patient C. P. The written records produced by the Respondent do not show a need for physical therapy. Similarly, those records do not show a need for the extensive physical therapy the Respondent ordered for the patient C. P.5 Accordingly, the evidence is sufficient to prove the violation charged in Count Two of the Administrative Complaint.

22. Count Three of the Administrative Complaint charges the Respondent with having violated Section 458.331(1)(n), Florida Statutes. In this regard it is asserted in the Administrative Complaint that "Respondent is guilty of 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, in that Respondent filed claims under Patient C. P. and F. P.'s name[s] to Medicare for services that were not performed." (Emphasis added.)

23. For the same reasons discussed above in paragraph 19, the evidence in this case is insufficient to establish the violation charged in Count Three. There is simply no clear and convincing evidence that the Respondent did not perform the services for which he billed Medicare. Accordingly, Count Three of the Administrative Complaint should be dismissed.

RECOMMENDATION

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

1. Dismissing Count One and Count Three of the Administrative Complaint on the basis of insufficient evidence,

2. Concluding that the Respondent has violated section 458.331(1)(m), Florida Statutes, a charged in Count Two of the Administrative Complaint, by his failure to keep written medical records justifying the physical therapy for the patient C. P., and,

3. Imposing a penalty for the violation of Section 458.331(1)(m), Florida Statutes, consisting of an administrative fine in the amount of $2,500.00 and a letter of reprimand.

DONE AND ENTERED this 25th day of January, 1999, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 1999.

ENDNOTES

1/ Rulings on all of the exhibits offered at the final hearing are memorialized in the transcript.

2/ I have made very few findings of fact regarding the patient

F. P., because the prosecution of this case was focused primarily on matters related to the patient C. P., and there was very little evidence regarding the patient F. P. The patient F. P. died prior to the final hearing in this case.

3/ In making this finding of fact I have not overlooked the testimony of the patient C. P. to the effect that no one ever came to his home to administer a heart rhythm test. I have placed very little reliance on the patient's testimony because such testimony was by no means clear and convincing. To the contrary, on all material issues the patient's testimony appeared to be confused, incomplete, ambiguous, and/or inconsistent with other testimony. Further, the patient C. P. appeared not to have a reliable memory. In sum: On all material issues, the testimony of the patient C. P. was unreliable and unpersuasive.

4/ The Respondent testified that the patient C. P. received all of the physical therapy treatments that were billed to Medicare. However, his testimony fell short of being clear and convincing, largely because the testimony contained few specific details, and in his testimony on this subject it was difficult to tell whether the Respondent was testifying based on his specific recollection of the physical therapy provided to the patient C. P., or whether he was merely testifying based on his recollection of the manner in which he usually treated all of his physical therapy patients at the time in question. Although not clear and convincing, the preponderance of the evidence in this case is to the effect that the Respondent did provide all of the physical therapy treatments that were billed to Medicare.

5/ There is conflicting expert opinion regarding the sufficiency of the Respondent's written medical records. With regard to the physical therapy, I find the ultimate opinion of Dr. Stein to be more persuasive than that of Dr. Suarez. In this regard, attention is directed to page 253 of the transcript, lines 3 through 11, where Dr. Suarez agrees that the absence of physical therapy notes would constitute a failure to adequately document the patient's treatment.

COPIES FURNISHED:

John E. Terrell, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Anthony C. Vitale, Esquire, and Mr. Christopher A. Parrella

799 Brickell Plaza, Suite 700

Miami, Florida 33131

Tanya Williams, Executive Director Board of Medicine

Department of Health 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Pete Peterson, General Counsel Department of Health

Bin A02

2020 Capital Circle Southeast Tallahassee, Florida 32399-1703

Angela T. Hall, Agency Clerk Department of Health

Bin A02

2020 Capital Circle Southeast Tallahassee, Florida 32399-1703

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-002051

Orders for Case No: 96-002051