STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 97-4723

)

SANTO S. BIFULCO, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before the Division of Administrative Hearings by its duly- designated Administrative Law Judge, Carolyn S. Holifield, on February 25-26, 1999, in Largo, Florida.

For Petitioner: John E. Terrel, Senior Attorney

Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308

For Respondent: Grover Freeman, Esquire

Jon M. Pellett, Esquire

201 East Kennedy Boulevard, Suite 1950 Tampa, Florida 33602

STATEMENT OF THE ISSUES

Whether Respondent's license as a physician should be disciplined for the alleged violations set forth in the Administrative Complaint.

PRELIMINARY STATEMENT

On May 20, 1997, an Administrative Complaint was filed by Petitioner, Department of Health, Board of Medicine, against the Respondent's license to practice medicine. The Administrative Complaint formally charged Respondent, Santo S. Bifulco, M.D., with two violations of the Medical Practice Act, Section 458.331(1)(g) and Section 458.331(1)(n), and Section 766.111,

Florida Statutes (1991). The specific allegations of the Complaint were that in December 1991 and February 1992, Respondent (1) attempted to exploit Patient E. C. for financial gain by ordering diagnostic tests that were not necessary or medically indicated; and (2) ordered diagnostic tests that were not reasonably calculated to assist him in arriving at a diagnosis and treatment of E. C.’s condition. Respondent timely requested a formal hearing to contest the allegations of the Administrative Complaint. The matter was referred to the Division of Administrative Hearings (Division) to conduct a formal hearing.

Pursuant to Section 20.43(3), Florida Statutes, the Department of Health has contracted with the Agency for Health Care Administration for the prosecution of physicians licensed by the Board of Medicine.

The case was originally set for hearing on February 26-27, 1998, but was continued at the request of the Respondent.

Thereafter, the matter was rescheduled for hearing but was again continued, twice at the request of Respondent and once at the

request of the Petitioner. Subsequently, on October 21, 1998, a notice was issued and the matter was convened as noticed.

Prior to hearing, Respondent filed a Motion to Dismiss and a Motion to Strike Count II of the Administrative Complaint and Motion in Limine. In the Motion to Dismiss, Respondent alleged that Petitioner failed to adhere to the essential requirements of law in its investigation and presentation of the case to the Probable Cause Panel for the Board of Medicine. A ruling on the Motion to Dismiss was reserved until conclusion of the formal hearing. The parties were directed to submit evidence on the issues raised by the Motion at the formal hearing and include the issues in the pre-hearing statements and in their proposed recommended orders. Upon consideration of the Motion to Dismiss, it is found that the issues raised therein are without merit.

However, in light of findings and conclusions below, those issues are also determined to be moot.

In the Motion to Strike Count II of the Administrative Complaint and Motion in Limine (Motion) Respondent alleged that the Board of Medicine failed to promulgate disciplinary guidelines in accordance with the requirements of former Section 455.2273, Florida Statutes, now Section 455.627, Florida Statutes. An Order denying the Motion was entered on October 30, 1998. Respondent renewed the Motion at the beginning of the formal hearing.

Respondent's renewed Motion was also denied.

At the formal hearing, Petitioner presented the testimony of Patient E. C.; Michael Dupree, a State Farm Insurance representative; Allen R. Grossman, Counsel of the Board of Medicine; Dr. E. Sean Kelley, M.D., a medical expert; and

Dr. Craig Lichtblau, M.D., a medical expert. Petitioner also presented the deposition testimony of Larry G. McPherson, Chief Medical Attorney; and Rena Coffield, a member of the Board of Medicine office staff.

Petitioner offered and had 16 exhibits, Exhibits 1-11, 15, 16 and 19-21, received into evidence. Petitioner proffered Exhibits 12, 13 and 18. Petitioner presented Exhibit 22 through a post-

hearing filing on March 23, 1999. Petitioner's Exhibits 12, 13, 18 and 22 were rejected and have not been considered in preparing this Recommended Order.

Respondent testified on his own behalf and presented the testimony of three medical experts: Dr. Marc Gerber; Dr. Michael Meriwether; and Dr. Geeta Narula. Respondent also offered and had received into evidence the testimony of Dr. Kevin Sweeney by late- filed deposition. Respondent offered 17 exhibits into evidence.

Respondent's Exhibits 1-4, 6-9, and 12-15 were admitted at hearing; Respondent's Exhibit 10 was accepted as a late-filed exhibit; Respondent's Exhibit 5 was rejected; Exhibit 16 was withdrawn; and Respondent's Exhibits 11 and 17 were proffered. Exhibits 11 and 17 are rejected and have not been considered in preparing this Recommended Order.

Upon request of the parties, the record was left open until March 23, 1999, for Petitioner to file Petitioner's Exhibit 17 and for the parties to file designated post-hearing depositions.

However, as noted above, only one deposition, that of Dr. Kevin Sweeney, was filed. None of the other designated late-filed depositions or exhibits were received from the parties.

On March 24, 1999, the Transcript of the formal hearing was filed with the Division. On April 5, 1999, Respondent filed his Proposed Recommended Order and Memorandum in Support of the Proposed Disposition. That same day, Petitioner moved for an extension of time to file its Proposed Recommended Order. The request was granted and Petitioner was given until April 9, 1999, to file its Proposed Recommended Order. Respondent was given 10 days after the date Petitioner filed its Proposed Recommended Order to supplement his previous filing. Petitioner timely filed its Proposed Recommended Order and a Memorandum of Law under the extended time frame. Thereafter, Respondent filed a supplement to his Proposed Recommended Order.

FINDINGS OF FACT

1. Petitioner, Department of Health, Board of Medicine (Petitioner), is the state agency charged with regulating the practice of medicine pursuant to Section 20.43, Florida Statutes, and Chapters 455 and 458, Florida Statutes.

2. Respondent, Santo S. Bifulco, 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 ME 0056868 on February 13, 1990. He has been continuously licensed since February 1990 and has never been disciplined by the Board of Medicine.

3. Respondent, a physiatrist, specializes in physical medicine and rehabilitation. He entered private practice immediately after completing a four-year residency program in physical medicine and rehabilitation.

4. During his residency, Respondent learned and performed electrodiagnostic and neurodiagnostic tests. He was trained in the use of videofluoroscopy, electroencephalogram, needle and surface electromyography, nerve conduction studies, and other electrodiagnostic tests. Respondent performed far above the minimum 200 required for successful completion of the residency program. As a part of his residency, Respondent also had the opportunity to observe and work with chiropractic physicians from the local chiropractic medical school, thereby allowing him to understand the role of chiropractic care and allopathic medicine in the treatment of a patient.

5. Respondent first saw E. C. on December 9, 1991. At the time, he had been practicing physical medicine and rehabilitation for a little more than a year since completion of his residency program.

6. Prior to coming under the care of Respondent, E. C. had been involved in a motor vehicle accident on August 9, 1991. The

   patient had been treated by both her family physician, Dr. George Harris, and her chiropractic physician, Dr. Richard Thomas, D.C., for the injuries which resulted from the accident. Dr.

   Harris prescribed medications for E. C. and Dr. Thomas provided and was continuing to provide several modalities for E. C.'s injuries resulting from her motor vehicle accident.

7. Despite ongoing treatment by Dr. Thomas, E. C. was not significantly improving. Because E. C. was not improving under his care, Dr. Thomas referred her to Respondent. The purpose of the referral was for consultation and a second opinion. Respondent was also asked to determine what, if any, medications should be given to the patient and to provide them to the patient if it were appropriate. Respondent was not asked to nor did he assume direct primary care for the patient. Rather, Respondent's role was to provide Dr. Thomas with guidance as to the diagnosis and treatment direction for E. C.

8. In his written report dated November 25, 1991, Dr. Thomas indicated that he was referring the patient to

   Respondent for further evaluation and for medication that might assist in the improvement of her symptoms. He noted that he would continue to provide palliative care to E. C. until such time as Respondent evaluated her and he had received Respondent's report and recommendation.

9. When E. C. first came under Respondent's care, it was four months after the accident. However, her overall condition

   had not significantly improved. She had constant headaches, which were extreme and associated with dizziness, a history of high blood pressure, constant cervical pain radiating into her arms, thoracic pain or pain between the shoulder blades, numbness and tingling, and was limited in her physical activities. The pain was interfering with all aspects of her life, including her ability to work and sleep.

10. Respondent performed a physical examination of E. C. on December 9, 1991. On physical examination, Respondent found that E. C.'s neck range of motion was markedly limited and associated with pain; that her lower back range of motion was markedly limited and associated with pain; and that she had positive findings on orthopedic examination, as well as, on neurologic examination.

11. From Respondent’s examination, it appeared that E. C. had suffered injuries from the motor vehicle accident. Moreover, Respondent determined that E. C. was in need of continuing care and because she had not improved, was also in need of further diagnostic studies to evaluate the extent and nature of her injuries and her complaints. E. C. presented as a complicated case due to the length of time that had passed since the motor vehicle accident and the lingering and persistent complaints experienced by E. C. associated with that accident.

12. Respondent’s impression was that E. C. had post- traumatic headaches and injuries to the soft tissues of the neck with radiating pain.

13. Respondent believed that E. C. was involved in what is commonly known as a medical/legal case. Consistent with this belief, Respondent reasonably concluded that his role was to thoroughly evaluate E. C.'s condition by addressing and objectively documenting answers to the questions relative to the cause, extent, and nature of her injuries.

14. Respondent obtained Dr. Thomas’ records to evaluate the care E. C. had been receiving and reviewed E. C.'s X-rays with her on her first visit. Based on his review of the records and his examination of E. C., Respondent believed that the care provided by Dr. Thomas was appropriate for E. C.'s condition and that she would benefit from continued conservative care. However, Respondent felt that for E. C. to reach her maximum potential, additional diagnostic tests could reasonably assist him in arriving at a diagnosis and recommendation for treatment of the patient’s condition.

15. Respondent initially recommended that E. C. undergo diagnostic testing or studies including: nerve conduction studies; a Dermatomal Somatosensory Evoked Potential (DSEP); an electroencephalogram (EEG); a cervical Magnetic Resonance Imaging (MRI); and cinefluoroscopy or videofluoroscopy studies of the cervical spine. These tests were ordered and/or recommended

    because Respondent reasonably believed that they could assist him in determining the nature and extent of E. C.'s injuries and complaints and arriving at a recommendation for treatment.

16. E. C. subsequently underwent the recommended testing.

    
    

17. To assess the discs and other cervical soft tissues, Respondent recommended that E. C. receive imaging studies. Respondent recommended an MRI study of the cervical spine. This study was conducted on December 19, 1991, at the Access Imaging Center. The purpose of the MRI was to evaluate whether E. C. was suffering from a condition that could be treated by surgery. An MRI is a static exam and is the "gold standard" in looking for a herniated disc. E. C.'s MRI was normal, thus, ruling out the possibility of the need for surgical treatment of her condition.

18. To assess ligamentous structures and capsular stability, Respondent also recommended that E. C. receive a videofluoroscopy of the cervical spine or dynamic motion studies. The videofluoroscopy was obtained on December 11, 1991, and was performed at the Tampa Bay Dynamic Imaging Center.

19. The videofluoroscopy was the only test available to observe the movement of the cervical spine through a full range of motion versus the limited views obtained in extension and flexion X-rays, where the patient's neck is seen in a fully extended position, neutral position, and fully flexed position. In E. C.'s case, videofluoroscopy served to confirm the presence of a soft tissue injury. The videofluoroscopy exam revealed

    hypomobility of the cervical spine at the level of C5-6 and C6-7. This result was consistent with the extension and flexion X-rays of E. C. that had been taken while she was under Dr. Thomas' care. However, Respondent felt the videofluoroscopy was an appropriate diagnostic tool to determine if E. C. had deteriorated since her last exam or had greater instability than was thought to be present from review of the static flexion/extension films.

20. The videofluoroscopy and the MRI allowed Respondent to determine the extent and nature of the patient’s injuries and make recommendations for continuing treatment to her primary physician, Dr. Thomas. Both imaging tests provided useful information in the diagnosis and treatment of the patient’s condition.

21. E. C., who worked as a florist, was experiencing problems working, lifting, and performing many routine activities in her daily life. Because E. C. was not progressing in treatment, Respondent wanted an objective assessment of her strength and ability to lift. Respondent believed that this information would help guide E. C. and Dr. Thomas in advising the patient concerning what she should or should not be lifting.

22. To accomplish this objective, Respondent ordered a

    
    

    N.I.O.S.H. lift test and a Range of Motion test. These tests were performed on December 19, 1991, in Respondent's office. The

    N.I.O.S.H. lift and Range of Motion tests are components of a

    battery of tests that make up what is commonly known as a functional capacity evaluation. A functional capacity evaluation is an extensive series of tests to determine a patient’s ability to return to work. By itself, a N.I.O.S.H. lift test is not a functional capacity evaluation and was never intended to be used in that manner by Respondent.

23. Though E. C. had not significantly improved under

    
    

    Dr. Thomas' care, it appeared to Respondent that she had reached a plateau in that her condition was not improving. The

    N.I.O.S.H. test is appropriate when a patient like E. C. has reached a plateau in her care and is not progressing. It gives the physician information from which to base recommendations on the scope and nature of the activities in which the patient may participate. Furthermore, it helps the physician in designing a strengthening program appropriate to the patient’s physical limitations. It can also provide a baseline for future tests and serial evaluations of the patient’s progress.

24. Respondent was unable to make use of the results from the N.I.O.S.H. test or obtain comparison tests because E. C. failed to return to his office after February 1992.

25. To assess the presence or absence and the extent of any neurologic dysfunction in the upper extremities, Respondent recommended that the patient undergo nerve conduction studies.

    E. C. underwent those studies on December 30, 1991, in Respondent's office. The purpose of nerve conduction studies is

    to objectively evaluate peripheral nerve function. It is an average measure of the time it takes an electrical nerve impulse to travel down a segment of the nerve from the spinal column to a particular muscle group. It also includes a measure of the time it takes an electrical nerve impulse to travel from the point of stimulation up to the brain and back.

26. Respondent’s use of nerve conduction studies to objectively look for pathology of the spine or peripheral nerves was warranted given her continued complaints and failure to improve after four months of conservative care. The nerve conduction studies were interpreted by Respondent as abnormal. However, many physicians would have interpreted the studies as normal because, in part, the latency was less than 30 and the difference was less than three milliseconds when compared to both sides. Nonetheless, it is also recognized that these interpretations are judgment calls by physicians based on several factors.

27. To differentiate between problems with the peripheral nerves from those in the central nervous system, Respondent also recommended a DSEP of the upper extremities. This study was conducted on December 30, 1991, in Respondent's office. The DSEP was a companion exam to the nerve conduction studies and supplemented information learned from those studies. The combined exams assisted Respondent with localization of the

    source of the patient’s complaints and it was appropriate for the Respondent to have obtained both studies.

28. In 1991, the use of the DSEP was relatively new, but it was a test that held out promise to physicians in helping them objectively quantify the functioning of nerves in all of their segments. Over time, it has been found that the DSEP does not provide any greater information than that gained by use of electromyography combined with imaging studies. However, in 1991, the thinking was different.

29. In addition to the nerve conduction studies and the DSEP, Respondent recommended that E. C. undergo a standard awake or EEG. This test was performed on December 30, 1991, in Respondent's office. The purpose of the EEG was to evaluate the source of the patient’s continued complaints of headaches and of difficulty with sleeping. According to E. C., these problems had persisted for four months.

30. The EEG was an inexpensive tool to evaluate whether

    
    

    E. C. was suffering from an intracranial bleed or from some other pathologic condition unrelated to her soft tissue injuries.

    Given the intensity and persistence of the headaches, Respondent felt that there was the possibility of trauma having gone undetected; he believed that such trauma could not be ruled out even though the patient had not related a history of having hit her head during the motor vehicle accident. The EEG came back as

    a normal study, thus, allowing Respondent to rule out more serious causes for the E. C.’s headaches.

31. The results of the diagnostic tests allowed the Respondent to report to her primary treating physician his conclusions concerning the extent of the care to be provided, prescribe medications for E. C., identify the distribution of ligamentous instability, the etiology of her complaints, and her safe lifting capacities. It allowed him to rule out the possibilities of serious intracranial lesion and serious neurologic abnormalities. The data was suggestive of a problem in the thoracic outlet.

32. In February 1992, E. C. returned to Respondent for re- evaluation and discussion concerning her medications. She was still experiencing headaches and was reporting that Dr. Thomas’ care was helping but she was unsure if her overall condition was improving. E. C. also reported a new problem with a burning sensation in the right foot at night, which Respondent had not assessed to be problematic. During this visit, Respondent altered her medications and scheduled her for surface electromyography exam (EMG) of the face and neck. The EMG was performed on February 28, 1992, in Respondent's office.

33. The purpose of the surface EMG was to objectively evaluate whether E. C. had muscle spasms, and if so, the degree, interest and location of the spasms. The surface EMG also confirmed the clinical finding of muscle spasms. From the

    information gained from the study, Respondent could also objectively assess E. C.’s response to existing treatment and her need for further treatment including potential adjustments to be made to her medications in type and quantity.

34. In 1991 and 1992, the results obtained from the surface EMG were thought to be important in providing care to patients or evaluating the treatment being provided. However, over time, it has been learned that muscle spasm can vary on a daily basis and, thus, the data obtained from the surface EMG may not be the best indicator as to how the patient is progressing in treatment. As physicians have learned more about the usefulness of surface EMG, they have come to rely upon it in biofeedback training. The exam provides the patient with an objective visual representation of muscle spasm, which then allows the clinician to teach the patient to relax the affected area.

35. In E. C.’s case, the surface electromyography allowed Respondent to identify areas of muscle spasm for the purpose of planning her continued care. His use of the test in this manner, given the time period in which it was administered, was not inappropriate.

36. E. C. left Respondent’s care after February 28, 1992, and subsequently came under the care of a neurologist, Dr. Alan Spiegel.

37. Dr. Spiegel, who assisted in the treatment of the patient after she left Respondent’s care, did not have any

    criticisms of the care she had received from her prior treating physicians. As he formulated his treatment plan, Dr. Spiegel had the benefit of the records from E. C.'s prior physicians, including Respondent’s records. While receiving treatment from Dr. Spiegel, E. C. was still under the care of Dr. Thomas. Dr.

    Thomas’ role was to provide physical therapy while Dr. Spiegel provided medications to reduce inflammation and spasm. In fact, because she had received prior diagnostic exams, there was no need for Dr. Spiegel to perform any additional tests.

38. Dr. Spiegel placed E. C. at maximum medical improvement on April 20, 1992, and found that there was a significant impairment of her physical condition. She experienced an exacerbation of her condition, received additional treatment, and was again placed at maximum medical improvement on October 9, 1992.

39. At the time of the formal hearing, E. C. was still suffering from the injuries sustained in the motor vehicle accident of August 9, 1991. She continues to experience flare- ups of her condition and continues to receive treatment for her condition.

40. Respondent's use of the diagnostic tests was not exploitative and was medically indicated at the time they were ordered.

41. Respondent’s use of diagnostic tests was reasonably calculated to assist him in reaching a diagnosis and in making

    recommendations for continued treatment to her primary physician, Dr. Thomas. The tests were also used by her subsequent treating physicians in rendering care to the patient. This avoided the necessity of having the patient undergo further testing.

42. As with many new practitioners, Respondent ordered more diagnostic tests than a more experienced practitioner might have thought necessary under the same circumstances. Moreover, since Respondent was fairly new in the practice, it was not unreasonable for him to have ordered more diagnostic exams than a more experienced practitioner might have ordered under similar conditions and circumstances. However, the fact that Respondent ordered more tests than a more experienced practitioner does not mean that the tests he obtained were not reasonably calculated to assist him in arriving at a diagnosis and recommendation for treatment of E. C.'s condition. Nor do more tests mean that they were not medically indicated.

43. Several practitioners testified at the hearing and in their depositions that the tests were appropriate, particularly in 1991.

44. Reasonable practitioners will differ as to the number and type of tests they will order to arrive at a diagnosis and treatment of a patient’s condition. At the formal hearing and in the written reports submitted into evidence, the opinions of seven physiatrists (Respondent, Dr. Gerber, Dr. Goodgold,

    Dr. Kelley, Dr. Krimshtein, Dr. Lichtblau, and Dr. Narula), a

    neurologist (Dr. Spiegel), a psychiatrist (Dr. Sprehe), and a neurosurgeon (Dr. Meriwether) were offered by the parties. Each of the physicians had a different belief as to the tests that he would order to evaluate E. C.'s condition.

45. The Department provides appropriate and comprehensive training to members of the Board of Medicine as required by Section 458.307(4), Florida Statutes. At all times relevant to this proceeding, such training was provided to Board members when they were initially appointed as well as periodically throughout their tenure on the Board. Various methods utilized to implement and accomplish the required training included the following: viewing of appropriate videotapes; attendance at seminars and retreats; regular presentations at Board meetings; and dissemination of newsletters.

    CONCLUSIONS OF LAW

    
    

46. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding, pursuant to Sections 120.569, 120.57(1), and 455.225(5), Florida Statutes.

47. Pursuant to Section 458.331(2), Florida Statutes, the Board of Medicine is empowered to revoke, suspend or otherwise discipline the license of a physician for violations enumerated in Section 458.331, Florida Statutes, which provides in pertinent part:

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

       
       

       * * *

       
       

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

       
       

       * * *

       
       

       (n) Guilty of exercising influence on 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.

48. Also, pertinent to this case is Section 766.111, Florida Statutes, which provides in part:

    Engaging in unnecessary diagnostic testing; penalties.--

    
    

    1. No health care provider licensed pursuant to chapter 458, chapter 459, chapter 460, chapter 461, or chapter 466 shall order, procure, provide, or administer unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of a patient's condition.

       
       

    2. A violation of this section shall be grounds for disciplinary action pursuant to s. 458.331, s. 459.015, s. 460.413, s. 461.013, or s. 466.028, as applicable.

       
       

49. Disciplinary licensing proceedings are penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So. 2d 487 (Fla. 1973). Thus, in disciplinary licensing proceedings such as this, Petitioner must prove the alleged violations of

    Sections 458.331(1) and 766.111, Florida Statutes, by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1st DCA 1987); Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996).

50. The nature of clear and convincing evidence has been described as follows:

    [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.

    Inquiry Concerning Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

51. Petitioner has failed to prove by clear and convincing evidence any of the violations alleged in Counts One and Two of the Administrative Complaint.

52. The Administrative Complaint alleges in Counts One and Two that Respondent improperly ordered the following five tests: the videofluoroscopy or cineradiography test; the N.I.O.S.H.; the EEG; the DSEP; and the surface EMG.

53. The Administrative Complaint also references nerve conduction studies. However, Petitioner has acknowledged that the appropriateness of the test is a non-issue. Rather, the allegation

    relative to the nerve conduction studies is that Respondent incorrectly interpreted this test result as abnormal to justify additional neurodiagnostic studies in order to exploit the patient for financial gain.

54. Count One of the Administrative Complaint alleges that Respondent exploited E. C. for financial gain in violation of Section 458.331(1)(n), Florida Statutes, by having ordered diagnostic tests that were not necessary or medically indicated. Petitioner has failed to prove this allegation.

55. The evidence in this case is insufficient to establish the allegations in Count One. As noted above, there is clear and convincing evidence that not all physicians would have ordered the subject tests for a patient with E. C.'s symptoms and history. However, there was insufficient evidence to establish that the tests ordered by Respondent were not necessary or medically indicated by E. C.'s complaints, history, and symptoms, and by Respondent’s examination of E. C.

56. Count Two of the Administrative Complaint alleges that Respondent failed to comply with a statutory obligation placed upon him as a physician in violation of Sections 458.331(1)(g) and 766.111, Florida Statutes, by having ordered diagnostic tests that were not reasonably calculated to assist him in arriving at a diagnosis and treatment of E. C.’s condition.

57. With regard to Count Two, Petitioner has failed to prove by clear and convincing evidence that the aforementioned five tests

    ordered by Respondent were not reasonably calculated to assist him in arriving at a diagnosis and treatment of E. C.'s condition.

58. Respondent was not the primary treating physician for E.

    
    

    C. Respondent's role in treatment was to administer medications to

    
    

    E. C. appropriate to her justified needs. Except for his responsibility associated with the administration of medication to

    E. C., Respondent's role was limited to providing a second opinion to and consulting with E. C.'s chiropractic physician. This role, of necessity, involved Respondent's obtaining objective data on the extent and nature of E. C.'s injuries. The evidence showed that Respondent adequately performed these functions. Furthermore, contrary to the assertions of Petitioner, the evidence established that the diagnostic tests ordered and/or provided by Respondent were reasonably calculated to enable him to arrive at a diagnosis and recommend a course of treatment for E. C.'s condition. The evidence established that while not all physicians would order the same tests ordered by Respondent, the clear and convincing evidence was that the use of diagnostic tests is a physician's judgment and is based on the experience and training of the physician.

59. Petitioner also alleged that Respondent interpreted the nerve conduction studies as abnormal in order to justify further neurodiagnostic students and that this was done to exploit the patient for financial gain. The evidence in this case is insufficient to support the allegation.

60. In view of Petitioner's failure to prove the allegations contained in the Administrative Complaint, the issues raised in Respondent's Motion to Dismiss are moot, and accordingly, are not addressed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Board of Medicine enter a final order in this case dismissing all charges against Respondent.

DONE AND ENTERED this 7th day of July, 1999, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

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 7th day of July, 1999.

COPIES FURNISHED:

John E. Terrel, Senior Attorney Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308

Grover Freeman, Esquire Jon M. Pellett, Esquire

201 East Kennedy Boulevard, Suite 1950 Tampa, Florida 33602

Sam Power, Agency Clerk

Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308

Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308

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: 97-004723

Orders for Case No: 97-004723