COMER -3 PH I: 2% ~ STATE OF FLORIDA DEPARTMENT OF HEALTH DEPARTMENT OF HEALTH, ) PETITIONER, 66760 7 ve ‘ CASE NO. 1996-12951 MARIO NANES, M.D., . RESPONDENT. ‘ ) ADMINISTRATIVE COMPLAINT COMES NOW the Petitioner, Department of Health, hereinafter referred to as | “Petitioner,” and. files this Administrative ‘Complaint before the Board of Medicine against Mario Nanes, M. D., hereinafter referred to as “Respondent,” and alleges: 1. Effective July 1, 1997, Petitioner is the state agency charged with regulating the Practice of medicine pursuant to Section 20.43, Florida Statutes; Chapter 455, Florida Statutes, and Chapter 458, Florida Statutes Pursuant to ‘the authority of Section 20. 43), Florida Statutes, ‘the Petitioner has contracted with the Agency for Health Care. Administration to " provide consumer complaint, investigative and prosecutorial services required by the Division of Medical Quality Assurance, councils, or boards, as appropriate. 2. Respondent is and has been at all times material hereto a licensed physician in the state of Florida, having been issued license number ME 0036383. Respondent’ s last ' known = address i is 4302 Alton Road, Suite 930, Miami Beach, Florida 33140. 3. Respondent was initially licensed a as a physician i in \ the State of Florida on or about April 7, 1980. Upon information and belief, Respondent specializes in neurological surgery, but is not board-certified. 4. The patient F.Z., born on or about October 6, 1949, underwent Magnetic Resonance ‘Imaging (MRD of the lumbar spine on or about January 8, 1994. The MRI was _ ordered by his physician, Richard Sandrow, M.D. The Teport of the MRI indicated ae “herniated disc at the level “of ‘the TI2L1 vertebrae on the left, deflecting the thecal sac posteriorly and rightward, and deflecting the spinal cord posteriorly and ‘Tightward- 5. Dr. ‘Sandrow referred F. Z. to Respondent, and Respondent saw F.Z. on 1 February 10, 1994. Respondent reviewed the January 8, 1994 MRI with F.Z., Sognosed F.Z.. as Barry Silverman, \ .D. FZ. was event aly y dcargd from Mount Sinai c on March 1, 1994, CR teint ill, RAAB a a 7, F. Z. thereafter was referred by Respondent for tehabilitative therapy on or ‘about March 33, 1994. On May 5, i864, FR. Z. saw Respondent for a an 1 office Visit. Respondent’ s notes for that office Visit indicate “tumbar radiculopathy involving the left lower extremity, [sic] wich has been a significant obstacle in his Rehabilitation”. 8. On June 8, 1994, F, Z. underwent another MRI of the tumbar spine. The report of the MRI indicates, “a prominent central projection of the posterior disc Mnargin at the L5-S1 . level which show, annular enhancement”, but “no gross “displacement of either nerve root at this level.” » The report ‘indicates further that “The cross-sectional area of the L5- Si canal i is within normal limits and the neural foramina ai are clear.” ” The report indicates further that there were “MR findings. consistent with a ‘left sided herniated disc at the TIL level with downward extension into the © epidural space Posterior to the Superior endplate of LI”, a and notes that The overall appearance is similar to that noted on Previous study of 1-8-94.” 9. _F, Zz. saw y Respondent again ‘on 1 June 3, “1994. _ Respondent’ s notes of that visit indicate that the RI of June 8, 1994 was discussed with F Z., and that “There ¢ ae postsurgical changes a and residual herniated ¢ disc at T12/L1.”__ : Disc Lumbar”. ‘12. admission note that date states i in pertinent part as follows: “Significant in this case is the fact Px Z. was admitted to. Mount. Sinai on November 10, 1994. _ Respondent’ a TR RRR RIE ORR RE re oe eB ll that the patient underwent a T12-L1 discectomy and fusion last year; at that time, he was found to have significant thoracic myelopathy; he recovered from that and did very well until this new disc herniation causing lumbar radiculopathy that was severe enough to interfere with activities of daily living, sleep and work.” F.Z.’s primary admitting diagnosis was given as lumbar radiculopathy secondary to a herniated nucleus pulposis at L5-S1. 13. On November 10, 1994, Respondent performed a left L5-S1 ‘Partial hemilaminectomy, discectomy, and foraminotomy. i Z. was » then discharged on November 13, 1994, _ Following discharge, F.Z, developed progressive pain, was s re-evaluated ty Respondent, and was found to have an elevated white blood cell count. He was. readmitted to _ Mount Sinai on November 23, 1994, stabilized, and discharged o on December 5, 1994. - 14. F. Z.’s back pain persisted i into 1995. On August 12, 1995, he underwent another lumbar spine ‘MRI on order of Timothy Grant, MI D. The report of that MRI indicates that “There i is + again noted to >be narrowing of the TI2- Li interspace and on the sagittal views, there - . appears to be an epidural defect which is paracentral on the left.” The impression was of “No change in the presumed extruded disc fragment which is paracentral on the left at T12-L1 15. On November 10, 1995, F. Z. was seen by] Nathan H. ‘Lebwotl, M.D., of the University of Miami Center f or Spinal Disorders. Dr. Lebwohl’s opinion was ‘that “most of isc erniation seen at T12-L1.” He recommended —e Sr ne ere — 17. A reasonably prudent physician would have performed and documented a’ more thorough evaluation of the patient in September, 1994, in response to the information that there remained a herniated disc at the level of T12-L1. Instead, Respondent’s narrative for the office visit of September 19, 1994 indicates “mostly evidence of Jumbar radiculopathy, related to the herniated disc demonstrated on the MRI”, and that “The patient was explained the options: conservative vs. surgical treatment.” It is not clear from that narrative whether Respondent believed F.Z. to. have a herniated disc at the level of L5-S1; the MRI of June 8, 1994 indicates no such herniation. Nor is it clear whether and how Respondent could have attributed lumbar radiculopathy to an L5-S1 ‘herniation, rather than to the residual T12-L1 herniation. Further, no indication is given as to what surgical treatment was discussed in ' particular on Septmber 19, if any. 18. A reasonably prudent physician would have documented the medical necessity, if any, for the surgery performed at the level of L5-S1 on November 10, 1994, and further would have > documented. a discussion of that t surgery preoperatively with the patient. 19. A Teaso beatin ly pruder t ph i would not have performed surgery at the level of LS-S1i in n November, 1994 while i ‘ignoring the continued d herniation at Ti2- ‘Li. 20. A reasonably prudent physician, if unsure of the necessity and benefits to be ~ expected from surgery at the evel of L5-S1 in November, 1994, ‘would have sought appropriate consultation on behalf of the patient. 21. Petitioner realleges and i incorporates paragraphs 0 one e (1) through twenty 00), ‘as if fully set forth herein this Count One. - paragraph twenty-two 2), as if fly set forth herein this Count Two. 2. Section 458.331(1)(t), Florida Statutes, provides that the Department of Health may take disciplinary action against a licensed medical doctor upon the medical doctor’s “failure to practice medicine with that level of care, skill, and treatment which i is recognized bya Teasonably prudent si similar physician as s being acoeptable under similar conditions and circumstances.” 23. Respondent violated Section 458.331(1)(t), Florida Statutes with respect to F.Z., ' due to one or more of the following facts: a Respondent failed to perform and document a thorough evaluation of and plan of treatment for the patient in September, 1994, in response to the information that there remained a herniated disc at the level of T12-L1; b. Respondent failed to document the medical necessity, if any, for the surgery performed at the level of L5-S1 on November 10, 1994, and failed to document a discussion of that surgery preoperatively with the patient; c. Respondent performed surgery at the level of L5-S1 in November, 1994 while ignoring the continued herniation at T12-L1; d, Respondent failed to seek appropriate consulation on behalf of the Patient Prior to “performing » surgery ‘at the level of Ls. -S1 i ‘in n Novertber, 1994, “when the MRI of June 8, "1994 oe indicated no herniation at Ls -S1 and continued herniation at T12- Li. _ COUNT TWO . etitioner -ealleges and incorporates paragrapis 0 one e trou twenty 20), and 3 that surgery preoper tivel 7 . 25. ‘Section 458, -331(1)(m), Florida Statutes, Provides that the » Department of Health may take disciplinary action against a licensed medical doctor for failing to keep “medical records that t identify the licensed physician 0 or the Physician extender and supervising Physician by n name e and professional title who i is or are - responsible for rendering, ordering, supervising, or billing for each diagnostic: or treatment procedure and that justify 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.” 26. Respondent violated Section 458. 331(1)im) in that he failed to keep medical records to justify the course of treatment at of PZ., due to one or more of the following facts: a. Respondent failed to > perform and document a ‘thorough evaluation of, and plan of "treatment for, the patient in “September, 1994, in response to the information that there remained a herniated disc at the level of T12-L1; b. Respondent failed to document the medical necessity, if any, for the surgery performed at the Jevel of L5- S1 on November 10, 1994, and failed to document a discussion of ith the patient; “Respondent perf med surgery at the’ “level of L5-S1 in November, 1994 while ignoring the continued herniation at T12- Li. ; WHE FORE, the Petitioner respectfully requests: the Board of Medicine enter an order i imposing one or more of the following penalties: permanent revocation or suspension of : the Respondents Aicense, ‘restriction of the Respondent’ practice, imposition of an 7 cenagpe pene orem cml a am a a i i - administrative fine, issuance of a reprimand, placement of the Respondent on probation, the assessment of costs related to the investigation and prosecution of this case as provided for in Section 455. 624(4), Florida Statutes, ‘and/or any other relief that the Board deems appropriate a _ SIGNED this fs day of 4K , 2000. Robeft G. Brooks, M.D., Secretary COUNSEL FOR DEPARTMENT: Kathryn L. Kasprzak Chief Medical Attorney Agency for Health Care Administration DEPARTMENT OF H : P.O. Box 14229 DEPUTY CLERK Tallahassee, Florida 32317-4229 CLERK Vehi RM Florida Bar # 937819 . , //2oo00 RE/te DATE fh PCP: January 28, 2000 PCP Members: Slade, Acosta~ Rua, Scoon

Docket for Case No: 00-001009