STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD OF ) MEDICINE, )
)
Petitioner, )
)
vs. ) Case No. 01-1486PL
)
LINDA M. BOCZAR, M.D., )
)
Respondent. )
__________________________________)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on August 27, 2001, at Sarasota, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: John E. Terrell, Esquire
Shirley J. Whitsitt, Esquire
Agency for Health Care Administration Post Office Box 14229
Tallahassee, Florida 32317-4229
For Respondent: James Boczar, Esquire
Linda M. Boczar, M.D., pro se Post Office Box 490
Knox, Indiana 46534-0490 STATEMENT OF THE ISSUES
Whether Respondent violated Subsections 458.331(1)(g), 458.331(1)(x), and 455.667(4) Florida Statutes, and Rule 64B8-
10.002(4), Florida Administrative Code, and, if so, what discipline should be imposed.
PRELIMINARY STATEMENT
On October 26, 2000, Petitioner, Department of Health, Board of Medicine (Department), filed a two-count administrative complaint against Respondent, Linda M. Boczar,
(Dr. Boczar). In Count I the Department alleged that she violated Subsection 458.331(1)(x), Florida Statutes, by violating Rule 64B8-10.002(4), Florida Administrative Code, by terminating her medical practice and failing to publish appropriate notices to her patients containing the date of termination, sale or relocation and address at which records may be obtained, failing to submit a copy of the notice to the Board of Medicine within one month from the date of termination, and failing to post the appropriate sign announcing such termination. In Count II the Department alleged that Dr. Boczar violated Subsection 455.667(4), Florida Statutes, and thus violated Subsection 458.331(1)(g), Florida Statutes, by making a physical or mental examination of, or administering treatment or dispensing legend drugs to Patients J.D., L.B., S.W., and L.W.B. and failing to furnish, in a timely manner, without delays for legal review, copies of all reports and records relating to such examinations or treatment, including X-rays and insurance information.
Dr. Boczar requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings on October 26, 2000, for assignment to an administrative law judge. The case was scheduled for final hearing on June 22, 2001. Dr. Boczar filed a Motion for Continuance, which was granted by order dated June 19, 2001. The final hearing was rescheduled for August 27, 2001.
At the final hearing, the Department called the following witnesses: J.D., L.W.B., L.B., and S.W. Petitioner's Exhibits 1, 2, 3, 5, 6, 7, 12, 13, 14, and 15 were admitted in evidence. Dr. Boczar testified in her own behalf and called Kelly B. Reynolds as her witness. Respondent's Exhibits 1-6 were admitted in evidence.
The parties agreed to file proposed recommended orders within 20 days of the filing of the transcript. The two- volume Transcript was filed on September 12, 2001. On September 19, 2001, Dr. Boczar filed a Motion for Extension of Time to file proposed recommended orders. The motion was granted, and the time for filing the proposed recommended orders was extended to November 6, 2001. The parties timely filed their Proposed Recommended Orders, which have been considered in rendering this Recommended Order.
Respondent filed a Notice of Filing Exhibits on November 6, 2001, which included exhibits which were not
submitted at the final hearing. On November 13, 2001, Petitioner filed a Motion to Strike Respondent's Exhibits. The Motion to Strike is GRANTED.
At the final hearing, the parties agreed to litigate the amount of costs of investigation and prosecution at a later date, depending on the ruling in the Recommended Order. It was anticipated that if necessary an evidentiary hearing would be held on the amount of costs prior to the issuance of the Recommended Order. On February 5, 2002, a telephonic conference was held with the parties, and the parties agreed to the issuance of the Recommended Order without a determination as to the amount of costs. It was agreed that if the Board of Medicine desired to have the Division of Administrative Hearings determine the amount of costs, the Board of Medicine could remand the issue of costs to the Division of Administrative Hearings for an evidentiary hearing.
FINDINGS OF FACT
Dr. Linda M. Boczar 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 0041564.
In 1983, Dr. Boczar began practicing medicine in Sarasota, Florida. Due to her own illness and the illness of her husband, Dr. Boczar closed her medical practice in
Sarasota in April 1999. In mid-March, 1999, she began to inform some of her patients that she was closing her practice.
After closing her practice, she spent a short time in Indiana and then went to work for a physician in Moultrie, Georgia, doing office work until her Georgia medical license was granted. She remained in Georgia from May to December 1999.
Dr. Boczar was unaware of the rules promulgated by the Department, which govern the retention and disposition of patient records when a physician is closing her practice. She was aware that the American Medical Association did provide guidelines for dealing with patient records when closing a practice.
When Dr. Boczar closed her practice, she hired her former receptionist to continue to answer the telephone and respond to patients' requests for records. During April, May and part of June 1999, the receptionist was supposed to be spending 20 to 30 hours per week with these duties. It came to Dr. Boczar's attention that the receptionist was not performing her duties, and Dr. Boczar fired her.
Dr. Boczar took the patient records to Georgia.
Beginning in August 1999, Dr. Boczar hired her son to respond to patients' requests for records. In October 1999, her son discovered that approximately 20 to 30 requests for patient
records were in the bottom of a box of files. Dr. Boczar did not know whether the receptionist had responded to these requests.
Dr. Boczar sent a letter to each of the patients whose requests were discovered in October, advising them that the requests had been recently discovered. Each patient was requested to advise whether she had received a copy of her record and, if not, whether she wanted a copy for a $20 fee for copying and postage. The patients were advised that they would receive their records within seven to ten days.
Dr. Boczar had a notice published in the Sarasota Herald-Tribune on October 25, 1999, which stated:
Patients of Dr. Linda Morrison-Boczar can continue to receive their medical records by sending a WRITTEN REQUEST to the office address of 1215 East Avenue, Suite 303, Sarasota, Fl 34239 with a fee of $20.00 for retrieving, copying, and mailing the records.
In January, 2000, Dr. Boczar moved to Indiana, where she is currently practicing.
In mid-summer of 1999, J.D., a patient of Dr.
Boczar, called Dr. Boczar's office to schedule an appointment for her annual examination. When J.D. called, she reached a recording which advised that Dr. Boczar had retired due to ill health and that patients desiring their medical records should write to a post office box in Sarasota and request their
records. The recording did not indicate that the patients should include a payment for the costs of copying and mailing the records.
On July 9, 1999, J.D. wrote to Dr. Boczar at the address given in the telephone recording and requested her medical records. She stated that she needed the records by August 8, 1999, which was the date of her appointment with another physician. By September, J.D. had not received her records. She tried to contact Dr. Boczar's office and reached a recording, which stated that the telephone had been disconnected.
On October 19, 1999, J.D. filed a complaint with the Agency for Health Care Administration (AHCA), complaining that she had not received her medical records from Dr. Boczar. Sometime after she filed her complaint, J.D. received a form letter with Dr. Boczar's letterhead, explaining that because an employee of Dr. Boczar had failed to perform her job, there may not have been a response to some of the requests for medical records. J.D. was told that her request had been found in a box of files. She was advised to send $20 to Dr. Boczar's old office address in Sarasota if she wanted her medical records. The letter was unsigned.
By letter dated November 19, 1999, J.D. wrote to the address given on the form letter and stated that she was not
going to send $20 to "a post office box, an empty office on East Avenue, nor an anonymous person who does not sign their letters or provide a phone number for verification." She asked that a copy of her medical records be sent to her new physician.
J.D. never received her medical records from Dr. Boczar.
L.B. became Dr. Boczar's patient in February 1999, when Dr. Boczar performed a gynecological exam on L.B. and prescribed Prempro, a combination of estrogen and progesterone. Dr. Boczar explained that taking estrogen without progesterone could raise the possibility of uterine cancer. L.B. was not happy taking Prempro because she experienced pregnancy-like symptoms while taking the drug.
In June or July 1999, L.B. attempted to contact Dr. Boczar by telephone for a follow-up examination, but reached a recording which advised her that Dr. Boczar had
terminated her practice because of illness and instructed her to send a written request for her medical records. L.B. sent a letter requesting her medical records from Dr. Boczar.
Between July 1999 and September 6, 1999, L.B. also went by Dr. Boczar's office to get her records, but the office was not open. There was no sign on the door indicating the office was closed and no sign advising patients on how to
obtain their medical records. L. B. still had received no response from Dr. Boczar.
On September 6, 1999, L.B. filed a complaint with AHCA concerning Dr. Boczar. On October 18, 1999, Dr. Boczar sent a letter to AHCA with a copy to L.B., requesting that
L.B. send $13.55 for her medical records. L.B. refused to pay the $13.55 and never received her records.
S.W. had been treated by Dr. Boczar in 1995 and returned for an annual examination on January 28, 1999. Shortly after the appointment, S.W. was contacted by Dr. Boczar's office and told that she had severe dysplasia. She returned for treatment on February 22, 1999, and again on March 9, 1999. After her treatment on March 9, 1999, she experienced severe bleeding and called Dr. Boczar's nurse, who advised S.W. that the bleeding was normal and to return for a follow-up visit in three months.
S.W. had an appointment for a follow-up visit on June 10, 1999. When S.W. went to Dr. Boczar's office for the appointment, she discovered that the office was closed. There was no sign on the door or anywhere on the office's exterior indicating how Dr. Boczar could be contacted.
S.W. called the office and reached a recording that stated that Dr. Boczar had closed her practice due to illness and that patients could obtain their medical records by
sending a written request. On June 10, 1999, S.W. sent a written request for her medical records. The telephone recording did not state that she had to send money to get the records; thus, she did not include any money with her request. If she had been told that she needed to send money in order to obtain the records, she would have sent the money with the request. In her request, S.W. advised that she urgently needed to have the records because she was going to see another doctor for a follow-up on the treatment given by
Dr. Boczar in March 1999.
After receiving no response from Dr. Boczar, S.W. filed a complaint with AHCA on September 24, 1999. On December 22, 1999, S.W. received a letter from Dr. Boczar stating that S.W. needed to send $29.55 in order to receive her medical records. S.W. was advised that there were 44 pages of records. S.W. sent money for the records in December 1999.
In September 2000, S.W. received 24 pages of her medical records from Dr. Boczar.
On December 6, 1999, L.W.B. attempted to contact Dr. Boczar for an annual examination. When she telephoned Dr. Boczar's office, she reached a recording that the telephone had been disconnected. L.W.B. contacted the two
local hospitals and the Sarasota Medical Society but was unsuccessful in learning how she could contact Dr. Boczar.
On January 2, 2000, L.W.B. signed a complaint with AHCA concerning Dr. Boczar. Up to that time, L.W.B. had not received any word from Dr. Boczar about the closing of the medical practice or a method for obtaining medical records. She provided a medical release to AHCA and a medical release to her physician for the purpose of obtaining her records.
She does not know if her doctor requested the records from Dr. Boczar.
At some point, Dr. Boczar did receive a written request for L.W.B.'s medical records. Dr. Boczar sent the records to L.W.B. in September 2000 and did not charge L.W.B. a fee for copying the records because L.W.B. had been a long- time patient. L.W.B. received no request from Dr. Boczar for payment for the records.
Prior to her deposition being taken on June 8, 2001, Dr. Boczar called L.W.B. and told L.W.B. that she was calling from AHCA and that L.W.B. should call Kelly Reynolds, an investigator with AHCA, and tell him that she had received her records and whether she had paid for them.
On September 27, 2000, L.W.B. sent a letter to AHCA stating that she had received her records and was going to drop the complaint.
On April 9, 2000, Dr. Boczar notified the Department that her new address was Post Office Box 35, Moultrie, Georgia. Prior to this address change, Dr. Boczar had advised the Department that her address was 1215 East Avenue, Suite 303, Sarasota, Florida. Dr. Boczar failed to notify the Department within 30 days of closing her office.
By letter dated May 23, 2001, the Agency for Health Care Administration advised Dr. Boczar as follows:
Please be advised that the Probable Cause Panel for the Board of Medicine met on
May 11, 2001, to consider the complaint which had been filed against you in the above-referenced case [Case No. 2000- 08415]. After careful consideration of the complaint and the investigative report, the Panel dismissed the case. However, the Panel directed the issuance of this Letter of Guidance.
The panel requested that you be advised of the following provision of the Practice Act, contained in Chapter 458, Florida Statutes:
Section 458.331(1)(x) Violating any provision of this chapter, a
rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing or failing to
comply with a lawfully issued subpoena of the department.
The panel directed that the Letter of Guidance be issued because you relocated your practice without complying with the notice requirements in Rule 64B8-10.002(4), Florida Administrative Code.
Please be advised that a Letter of Guidance is not considered to be disciplinary action; instead, it is an alternative to disciplinary action provided for by the legislature. Furthermore, this
Letter of Guidance is not considered to be a finding of guilt. The Probable Cause Panel is only empowered to make a finding of probable cause. Due to the Probable Cause Panel's decision to dismiss this case without a finding of probable cause, this case remains confidential.
At the final hearing, Dr. Boczar waived confidentiality relating to Case No. 2000-08415. No evidence was presented concerning the factual basis for Case No. 2000- 08415 other than as set forth in the Letter of Guidance dated May 23, 2001. A partial transcript of the meeting of the Probable Cause Panel of the Florida Board of Medicine on May 11, 2001, was entered into evidence as Petitioner's Exhibit
The transcript indicated that no Tab C-20 was considered by the panel; however, no evidence was presented that Tab C-20 involved a complaint against Dr. Boczar or related to the Letter of Guidance dated May 23, 2001.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 120.569 and 120.57, Florida Statutes.
The Department has alleged in the Administrative Complaint that Dr. Boczar violated Subsections 458.331(1)(g), 458.331(1)(x), and 455.667(4), Florida Statutes, and
Rule 64B8-10.002(4), Florida Administrative Code. The
Department has the burden to establish by clear and convincing evidence the allegations in the Administrative Complaint.
Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996).
Subsections 458.331(1)(g) and (x), provide that the Department may take disciplinary action for the following actions:
(g) Failing to perform any statutory or legal obligation placed upon a licensed physician.
* * *
(x) Violating any provision of this chapter, a rule of the board or department.
. . .
Rule 64B8-10.002, Florida Administrative Code, sets forth the minimum standards for retention and disposition of patient records of a practitioner who is relocating or terminating practice and provides:
The Board of Medicine and the Legislature recognize the need for maintenance and retention of Medical Records in order to protect and serve patients. For that reason, the Legislature has directed the Board to promulgate rules setting standards that will provide a minimum requirement for retention and disposition of patient records of deceased practitioners and practitioners relocating and terminating practice. . . . Rule 64B8- 10.002, F.A.C. sets forth standards which if not met will constitute a violation of Florida Statutes Section 456.058 and will subject the physician to disciplinary proceedings by the Agency for Health Care Administration.
* * *
(4) When a licensed physician terminates practice or relocates and is no longer available to patients, patients should be notified of such termination, sale, or relocation and unavailability by the physician's causing to be published once during each week for four (4) consecutive weeks, in the newspaper of greatest circulation in each county in which the physician practices or practiced and in a local newspaper that serves the immediate practice area, a notice which shall contain the date of termination, sale, or relocation and an address at which the records may be obtained from the physician terminating or selling the practice or relocating or from another licensed physician or osteopathic physician. A copy of the notice shall also be submitted to the Board of Medicine within one (1) month from the date of termination, sale, or relocation of the practice. The licensed physician may, but is not required to, place a sign in a conspicuous location on the façade of the physician's office or notify patients by letter of the termination, sale, or relocation of the practice. The sign or notice shall advise the licensed physician's patients of their opportunity to transfer or receive their records.
The Department has established by clear and convincing evidence that Dr. Boczar violated Rule 64B8-10.002, Florida Administrative Code, by failing to have published a notice of closure of her practice each week for four weeks in a newspaper of greatest general circulation in each county where she practiced and in a local newspaper which serves the immediate practice area. Rule 64B8-10.002, Florida Administrative Code, does not specify when the notice shall be
published other than "[w]hen a licensed physician terminates practice or relocates and is no longer available to patients." However, given the requirement that Dr. Boczar furnish a copy of the notice within one month of the termination, sale or relocation of the practice, it can be inferred that the notice was to be published within 30 days of the closure of the practice. Dr. Boczar had published a notice that appeared one time in October 1999 and one time in March 2000. The notice did not contain the date of termination, sale or relocation of the practice as required by Rule 64B8-10.002, Florida Administrative Code. Dr. Boczar failed to furnish the Department a copy of the notice within 30 days of the closure of her practice, which was April 1999. Dr. Boczar violated Rule 64B8-10.002(4), Florida Administrative Code, and, therefore, violated Subsection 458.331(1)(x), Florida Statutes.
Dr. Boczar argues that she cannot be found guilty of
a violation of Rule 64B8-10.002(4), Florida Administrative Code, because she received a Letter of Guidance concerning a charge of relocating her office without complying with the notice requirements of Rule 64B8-10.002(4), Florida Administrative Code. The Letter of Guidance advised that the Probable Cause Panel had dismissed Case No. 2000-08415 against her at its meeting on May 11, 2001. There is no evidence to
show that the facts upon which the complaint in Case No. 2000- 08415 was based are the same facts on which the administrative complaint in the instant case is based.
In West v. Kawasaki Motors Mfg. Corp, 595 So. 2d 92,
94 (Fla. 3d DCA 1992), the court stated:
It is settled, as a general rule in Florida, that in order to invoke the defense of res judicata or collateral estoppel so as to bar a pending action based on a final judgment entered in a prior action, it must be established that there is (1) an identity of the things sued for in both actions, (2) an identity of the cause of action in both actions, (3) an identity of parties in both actions, and
(4) an identity of the capacity of the
parties in both actions.
In Le Rea v. Cochran, 115 So. 2d 545, 546 (Fla.
1959), the court set forth the elements necessary to sustain a plea of double jeopardy and stated:
[I]t must appear that there was a former prosecution in the same state for the same offense; that the person was in jeopardy on the first prosecution; that the parties are identical in the same prosecution; and that the particular offense on the prosecution of which jeopardy attached was such an offense as to constitute a bar to further prosecution.
Without establishing that the complaints are based on the same facts, Dr. Boczar cannot rely on a defense of res judicata or double jeopardy.
Subsection 455.667(4), Florida Statutes (1999), provides:
(4) Any health care practitioner licensed by the department or a board within the department who makes a physical or mental examination of, or administers treatment or dispenses legend drugs to, any person, shall upon request of such person or the person's legal representative, furnish in a timely manner, without delays for legal review, copies of all reports and records relating to such examination or treatment, including X rays and insurance information. . . . Upon a patient's written request, complete copies of the patient's psychiatric records shall be provided directly to a subsequent treating psychiatrist. The furnishing of such report or copies shall not be conditioned upon a payment of a fee for services rendered.
Rule 64B8-10.003, Florida Administrative Code, provides that a physician may condition the release of medical records upon payment of the reasonable costs of copying the records. Dr. Boczar argues that patients did not receive their records because they failed to pay the costs of copying the records. The telephone recording that Dr. Boczar used to inform her patients that the office was closed did not advise her patients that there would be a cost for copying the records. Thus, prior to the publishing of the notice of closing in October 1999 and letters being sent to patients advising that there would be a cost for copying, the patients would not be aware that they would be required to pay the copying costs before they could receive their records.
Patients J.D. and L.B. sent written requests for their records in July 1999 and did not receive a response from Dr. Boczar until October 1999. Obviously there was not a timely response to J.D. and L.B.'s requests, but there were mitigating circumstances. Due to the negligence of her employee, Dr. Boczar was unaware that patients J.D. and L.B. had requested their medical records in July 1999 until Dr. Boczar discovered their requests in the bottom of a carton of files in October 1999. Dr. Boczar took immediate action to ascertain whether their requests had been processed and advised them of the costs of copying the records. Neither
J.D. nor L.B. would pay the costs of copying the records; thus, no records were sent to them. Based on the evidence, the Department has failed to establish a violation of Subsection 455.667(4), Florida Statutes (1999), as it relates to patients J.D. and L.B.
Patient L.W.B. did not personally request copies of her records. She did provide her physician and AHCA with releases for them to obtain the records. The evidence does not establish when the medical records were requested, but
L.W.B. did receive copies of the records in September 2000 and was never requested to pay for the records. The Department did not establish when Dr. Boczar received the request for L.W.B.'s records and therefore did not establish
that the records were not timely furnished. The Department has failed to establish that Dr. Boczar violated Subsection 455.667(4), Florida Statutes (1999), as it relates to L.W.B.
The Department has established that Dr. Boczar violated Subsections 455.667(4)and 458.331(1)(g), Florida Statutes (1999), as they relate to patient S.W. S.W. paid her fee for the copying of her records in December 1999 and did not receive her medical records until September 2000. A nine- month delay in sending the records to S.W. is not in compliance with Subsection 455.667(4), Florida Statutes (1999), which requires that the records be provided in a timely manner.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered, finding that Dr. Linda M. Boczar violated Rule 64B8-10.002(4), Florida Administrative Code, and, thus, Subsection 458.331(1)(x), Florida Statutes (1999); finding that Dr. Linda M Boczar violated Subsection 455.667(4), Florida Statutes (1999); and, thus, Subsection 458.331(1)(g), Florida Statutes (1999); issuing a public reprimand; imposing an administrative fine of $250, and assessing costs of investigation and prosecution.
DONE AND ENTERED this 6th day of February, 2002, in Tallahassee, Leon County, Florida.
___________________________________ SUSAN B. KIRKLAND
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 6th day of February, 2002.
COPIES FURNISHED:
John E. Terrell, Esquire Shirley J. Whitsitt, Esquire
Agency for Health Care Administration Post Office Box 14229
Tallahassee, Florida 32317-4229
James Boczar, Esquire Linda M. Boczar, M.D. Post Office Box 490
Knox, Indiana 46534-0490
Theodore M. Henderson, Agency Clerk Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
William W. Large, General Counsel Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Tanya Williams, Executive Director Board of Medicine
Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
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.
| Issue Date | Document | Summary |
|---|---|---|
| May 01, 2002 | Agency Final Order | |
| Feb. 06, 2002 | Recommended Order | Doctor failed to timely provide medical records to a patient and failed to provide notice of closing her practice as provided by rule. |
