FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION JEB BUSH, GOVERNOR RHONDA M. MEDOWS, MD, F; June 10, 2002 The Honorable Larry J. Sartin Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 RE: DOH v. Frank Gutierrez, M.D. DOH Case No. 1999-61457 DOAH Case No. 01-2045PL Dear Judge Sartin: Enclosed you will find a Final Order entered by the Board of Medicine in the above- referenced case. If you have any questions about this matter, please do not hesitate to contact our office at (850) 414-8126. RCB/ia Enc. 2727 Mahan Drive e Mail Stop #39A Tallahassee, FL 32308 Visit AHCA online at www. fdhe. state fl.us Final Order No. DOH-02-0259. eee STATE OF FLORIDA Department of Hdalth BOARD OF MEDICINE By. ()* Deputy mae Clerk rae} DEPARTMENT OF HEALTH, ; ~ Petitioner, vs. CASE NO.: 1999-61457 © . LICENSE NO.: ME0034375 oe FRANK E. GUTIERREZ, M.D., Respondent. ey INAL ER THIS CAUSE came before the Board of Medicine (Board) pursuant to Sections 120. ‘569 and 120.57(4), Florida Statutes, on February 1, 2002, in Jacksonville, Florida, for consideration of a- Consent Agreement’ (attached hereto as Exhibit A) entered into between the parties in the above-styled cause. Upon consideration of the Consent Agreement, the documents submitted in support thereof, the arguments of the parties, and being otherwise advised in the premises, the Board rejected the Consent Agreement. and offered a Counter Consent Agreement which Respondent was given 7 days to accept. By letter dated February 8, 2002, Respondent timely accepted the Board's counter Consent Agreement. The Counter Consent Agreement offered by the Board incorporated the original Consent Agreement with the following amendment : Respondent shall submit to a Quality Assurance review of his ail op medical practice to be performed by a licensed risk manager and . document compliance with any and all recommendations of said review within six (6) months from the date the Final Order is filed. IT IS HEREBY ORDERED AND ADJUDGED that the Consent Agreement as submitted be and is’ hereby approved and adopted in toto and incorporated by reference herein with the amendment set forth above, Accordingly, the parties shall adhere to and abide by all the texms and conditions of the Consent Agreement as amended. 024 _ DONE AND ORDERED this VE day of ZEEUUHLY , 2002. CTOR ZACHARIAH P. ZACHARIAH, M.D. CHAIRMAN ERTIF TE_OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing order has been provided by U.S. Mail to Frank E, Gutierrez, M.D., 3075 . E. Commercial Boulevard, Ste. 101, Ft. Lauderdale, Plorida 33308; to Liana Silsby, Esquire, George, Hartz, et al., Third Floor, Justice Building ‘Bast, 524 South Andrews Avenue, Ft. Lauderdale, Florida 33301, and by interoffice delivery to Nancy M. Snurkowski, Chief - Practitioner Regulation, and Lisa Pease, Senior Attorney - Appeals, Agency for Health Care Administration, 2727 Mahan Drive, Tallahassee, Florida 32308-5403, on or before 5:00 p.m., this 2). day of f Lb ue , 2002. FEB-11-2822 9? 3b RHCA/LEGAL MEDICRL Law crise ‘TwRD FLOOR WWIRTIOS AUILSIS FAST BEA ROUTH ALDOCwES AVENUE FORT LAUDEADALE, FLORIDA 2330) TEMEPHOME (984) accsS FARUINGATION AMD WOAKEAG CON 1084) 544-5810 PAXLUEDICAL MALPDALTICE (DEA) 525.1349 WEATITE tite gearnarers mn ope eer ete ee eR SCOTT ALBEE REOCRTD GARTOLe Gate ® Bainsaye JAMES B, CHINO AM aubSew i, Ase Mae Guintiey DAI A BUM MICPAEL 4. OLASE © LAWEENEE HAROY Oat | MENBATTY BAian ys. PUdTT MEapcE A VODTS en BUSHNOLE Dad A. CAnNiND LYNNE, CANN EA TT OCTPARD FULMER. UM, COT ET B.A, PMLA etaZ:, HABTD : MRCMAR, 98, nets 5 CRAB a, BOURETONE . DpUId y, BED srewie ke w Lene HICr Ge LEDEER A pobttanoce BTAZEV LE MARGULIES Bove.aga mcourr EUGANAG, Ruin? AMANDA PF, REMEN CHRIST ON IER w. ATA Chnbrr a. Canty MAUS A BOtUTOW WES Stnetr CARL ©, Som PecK Usa # $AADER Valin Cia Y. STUBBS wey S PavLod B SOBEFT Himeny, wa, 20D WOES, AQMRPT ' YRARTL MARIA BARTORG TEAESE m, Lata CARS Ur nee w. WADSWORTH LIAN ©, SRS QAQHAR LLaUDY RAISE n, WOCLAN PLTCAY, SPKLID TODD §. LINK cong, Stevens, GnnPona'a, OPN AUMYAN LYAN aon CMA EA OF COUNAES February srapsyr cent *; VIA FACSIMILE Ms. Carol Sherman a Agency for Health Care Administration ” lanOffice of the Genaral Counsel/Medical Section . 12727 Mahan Drive, Mail Stop #39A *, ¥ Tallahassee, FL 32308 : RE: DOH v. Frank Eleuterio Gutierrez, M.D, : AACA Case No.: 1999-61457 y , . ‘Claim No.: 99-28739-900 : Our Pile No,: 21-255 if Dear Carol: " -arisk management review, to be completed within six (6) months. Took forward to hearing from you Sincerely, LCSeh - Dr. Frank Gutierrez Maria Gonzalez @ ProNational ' Gxoxuz, Hagrz, Lunpegn, Fuomsr, Jounstony, Kove & Svevens : This letter will conficm our telephone conversation of this date, wherein I advised-you thar . :” ‘Dr. Frank Gutierrez bas accepted the previously stipulated Consent Agreement, ith the addition of : As we discussed, it is imperative that you provide us with the information relative to the - parameters of a risk management review, acceptable ra the Board of Medicine, such thar Dr. © Gutierrez can accomplish Umely cumpliznce. (Specifically, does the Board designate an independent reviewer or is Dr. Gutierrez to obtain such « review on his own? Does the Board supply a list of acceptable risk managers? What is the format of the report to be provided to the Board?) Vitex 2” LANA SILSBY a, a, _—____" SS eS BOM 414 asoy rigs roam TELEPMONE (4) 537-7707 BAX (ent 2474102 aed ORLANDO TERME (dt) Bazecne FAK UA Bedeace | TALLAMAROOS THLEP HOME (OM) 224578 .. * Fax sO) 2zz00Ez WEST PALM BAC TELEPHONE Ine} So@e772 * Pox (Bal] 306-0709 TAHEA TLEPMOWE Bid} 282-4900 FAX 4d) 292.0019 STATE OF FLORIDA °2.4CT! DEPARTMENT OF. HEALTH bee DEPARTMENT OF HEALTH, Petitioner, v. DOH Case No. 1999-61457 FRANK E. GUTIERREZ, M.D., Respondent. / CONSENT AGREEMENT Frank E. Gutierrez, M.D., (hereinafter Respondent") and the Department of Health, (hereinafter "Department") stipulate and agree to the following Agreement and to the entry of a Final Order of the Board of Medicine, referred to as "Board," incorporating the Stipulated Facts and Stipulated Disposition in this matter. Effective July 1, 1997, Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.43, Florida Statutes, Chapter 456, Florida Statutes, and Chapter 458, Florida Statutes. Pursuant to the provisions of Section 20.43(3), Florida Statutes, the Petitioner has contracted with the Agency for Health Care Administration to provide consumer complaint, investigative, arid prosecutorial services required by the Division of Medical Quality Assurance, councils, or boards, as appropriate. STIPULATED FACTS 1. At all times material hereto, Respondent was a licensed physician in the State of Florida having been issued license number ME0034375. 2. Respondent was charged by an Administrative Complaint filed by the Department and properly served upon Respondent with violations of Chapter 458, Florida Statutes, and the rules enacted Pursuant thereto. A true and correct copy of the Administrative Complaint is attached hereto as Exhibit A. 3. Respondent neither admits nor denies the allegations of fact contained in the Administrative Complaint for purposes of these proceedings only. STIPULATED CONCLUSIONS OF LAW 1, Respondent admits that, in his capacity as a licensed physician, he is subject to the provisions of Chapters 456 and 458, Florida Statutes, and the jurisdiction of the Department and the Board. 2. Respondent admits that the facts that gave rise to this case, if proven, would constitute violations of Chapter 458, Florida Statutes, 3. Respondent admits that the Stipulated Disposition in this case is fair, appropriate and acceptable to Respondent. STIPULATED DISPOSITION 1, FUTURE CONDUCT. Respondent shall not in the future violate Chapters 456, 458 and 893, Florida Statutes, or the rules promulgated pursuant thereto. Prior to signing this agreement, Respondent read Chapters 456, 458, and 893, Florida Statutes, and the Rules of the Board of Medicine, at Chapter 64B8, Florida Administrative Code. 2. ADMINISTRATIVE FINE. The Board shall impose an administrative fine in the amount of five thousand dollars ($5,000.00) against the Respondent. The fine shall be paid by the Respondent to the Board of Medicine within six (6) - months of its imposition by Final Order of the Board. THE RESPONDENT ACKNOWLEDGES THAT THE TIMELY PAYMENT OF THE FINE Is HIS LEGAL OBLIGATION AND RESPONSIBILITY AND THE RESPONDENT AGREES TO CEASE PRACTICING IF THE FINE IS NOT PAID AS AGREED TO IN THIS CONSENT AGREEMENT, SPECIFICALLY: IF THE RESPONDENT HAS NOT RECEIVED WRITTEN CONFIRMATION THAT THE FULL AMOUNT OF THE FINE HAS BEEN RECEIVED BY THE BOARD OFFICE WITHIN SIX (6) MONTHS OF THE FILING OF THIS FINAL ORDER, THE RESPONDENT AGREES TO CEASE PRACTICE UNTIL SUCH WRITTEN CONFIRMATION IS RECEIVED BY THE RESPONDENT FROM THE BOARD. (SEE EXHIBIT B, PARAGRAPH E OF THIS CONSENT AGREEMENT FOR BOARD ADDRESS AND STANDARD TERMS). 3. CONTINUING MEDICAL EDUCATION. Respondent shall attend and complete five (5) hours of Category I Continuing Medical Education courses in the area of Risk Management. Respondent shall submit a written plan to the Chairman of the Probation Committee for course approval prior to the completion of said courses. In addition, Respondent shal! submit documentation of completion of these courses in his required reports. These hours shall be in addition to those hours required for renewal of licensure. Unless otherwise approved by the Board or the Chairman of the Probation Committee, said courses shall consist of a formal live lecture format. 4. REIMBURSEMENT OF COSTS. In addition to the amount of any fine noted above, the Respondent agrees to reimburse the Department for any administrative costs incurred in the investigation and preparation of this case, including costs assessed by the Division of Administrative Hearings, if applicable, and by the Board of Medicine office. The agreed upon Agency cost to be reimbursed in this case is the amount of actual costs as established at the time of the presentation to the Board, currently one thousand, six hundred and forty-three dollars and sixty-one cents ($1,643.61), but not more than two thousand five hundred dollars ($2,500.00). The costs shall be paid by the Respondent to the Board of Medicine within ONE (1) year of its imposition by Final Order of the Board. THE RESPONDENT ACKNOWLEDGES THAT THE TIMELY PAYMENT OF THE COSTS IS HIS LEGAL OBLIGATION AND RESPONSIBILITY AND RESPONDENT AGREES TO CEASE PRACTICING IF THE COSTS ARE NOT PAID AS AGREED TO IN THIS CONSENT AGREEMENT, SPECIFICALLY: IF THE RESPONDENT HAS NOT RECEIVED WRITTEN CONFIRMATION THAT THE FULL AMOUNT OF THE COSTS NOTED ABOVE HAS BEEN RECEIVED BY THE BOARD OFFICE WITHIN ONE YEAR OF THE FILING OF THIS FINAL ORDER, THE RESPONDENT AGREES TO CEASE PRACTICE UNTIL SUCH WRIITEN CONFIRMATION IS RECEIVED BY THE RESPONDENT FROM THE BOARD. (SEE EXHIBIT B, PARAGRAPH E OF THIS CONSENT AGREEMENT FOR BOARD ADDRESS AND STANDARD TERMS,) 6. MITIGATING FACTORS: In arriving at this disposition the parties considered the following mitigating factors: Respondent is a Board Certified physician, with no prior discipline, under no “legal restraints” as that term is used in Rule 64B8-8,.001, F.A.C., who cooperated in the investigation of this matter. 7. It is expressly understood that this Agreement is subject to the approval of the Board and the Department. In this regard, the foregoing paragraphs (and only the foregoing paragraphs) shall have no force and effect unless the Board enters a Final Order incorporating the terms of this Agreement. 8. Respondent shall appear before the Board at the meeting of the Board where this Agreement is considered. Respondent, in conjunction with the consideration of this Agreement by the Board, shall respond to questions under oath from the Board, Board Staff or Department Staff, Respondent shail be prepared to explain the circumstances involved in this matter and what measures have been taken to prevent a recurrence. However, Respondent shall offer no evidence, testimony or argument that disputes or contravenes any stipulated fact or conclusion of law. 9. Should this Agreement be rejected, no statement made in furtherance of this Agreement by the Respondent may be used as direct evidence against the Respondent in any proceeding; however, such statements may be used by the Petitioner for impeachment purposes, 10. Respondent and the Department fully understand that this joint Agreement and subsequent Final Order incorporating same will in no way preclude additional proceedings by the Board or the Department against the Respondent for acts or omissions not specifically set forth in the Administrative Complaint. 11. Upon the Board's adoption of this Agreement, Respondent expressly waives all further procedural steps, and expressly waives all rights to seek judicial Teview of or to otherwise challenge or contest the validity of the Agreement and the Final Order of the Board incorporating said Agreement. 12, Respondent waives the right to seek any attorney's fees or costs from the Department in connection with this matter. 13. This Agreement is executed by the Respondent for the purpose of avoiding further administrative action with respect to this cause. In this regard, Respondent authorizes the Board to review and examine all investigative file materials concerning Respondent prior to or in conjunction with consideration of: the Agreement. Furthermore, should this joint Agreement not be accepted by the Board, it is agreed that presentation to and consideration of this Agreement and other documents and matters by the Board shall not unfairly or illegally prejudice the Board or any of its members from further participation, consideration or resolution of these proceedings. SIGNED this Xb day of _ Deceeabsr , 2001, Lan Lilo, Mn Frank E. Gutierrez, M.D. Before me, personally appeared Dy. Frank east whose identity is known to me by (type of identification) and who, under oath, acknowledges that his/her signature appears above. Sworn to and subscribed before me this aot day of a 2001. NOTARY PUBLIC ) #5, Elizabeth Hemandez ‘%& My Commission C¢810979 WISH Expires February 21, 2003 ZB > | Senge APPROVED this ___ day of , 2001 OY d- : Le Ay, John 0. Agwunobi,M.D., MBA. 77%. "Op Secretary, Department of Health ae ae By: — Nancy M. Snurkowski a“ Chief Attorney, Practitioner Regulation EXHIBIT B STANDARD TERMS APPLICABLE TO CONSENT AGREEMENTS The following are the standard terms applicable to all consent agreements, including supervision and Monitoring provisions applicable to licensees on probation. A. PAYMENT OF FINES. Unless otherwise directed by the consent agreement, all fines shall be paid by check or money order and sent to the Board address set forth in Paragraph E, below. The Board office does not have the authority to change the terms of Payment of any fine imposed by the Board, B. COMMUNITY SERVICE AND CONTINUING EDUCATION UNITS. Unless otherwise directed by the consent agreement, any community service requirements, continuing education units/courses must be completed, and documentation of such completion submitted to the Board of Medicine at the address set forth below in Paragraph E, WITHIN ONE YEAR OF THE DATE OF THE FINAL ORDER IMPOSING SUCH REQUIREMENTS. Cc. ADDRESSES. Respondent must keep currerit residence and practice addresses on file with the Board. Respondent shall notify the Board within ten (10) days of any changes of said addresses. Furthermore, if the Respondent's license is on probation, the Respondent shall notify the Board within ten (10) days in the event that Respondent leaves the active practice of medicine in Florida. Dz. COSTS. Pursuant to Section 456.072(2), Florida Statutes, the Respondent shall pay all costs necessary to comply with the terms of this Consent cS enaee ‘Agreement. Such costs include, but are not limited to, the costs of preparation of Investigative Reports detailing compliance with the terms of the Consent Agreement, obtaining supervision or monitoring of the practice, the cost of quality assurance reviews, and the Board's administrative costs directly associated with Respondent's probation, E, BOARD ADDRESS. Unless otherwise directed by the Board Office, all fines, reports, correspondence and inquiries shall be sent to: Department of Health HMQAMS/Client Services, P.O. Box 6320, Tallahassee, FL 32314-6320 ATTN: Medical Compliance Officer, Any reports, correspondence, inquiries or communications other than for the payment of fines and costs shall be sent to: Board of Medicine, HMQAMS/Client ’ Services Unit/BIN CO1, 4052 Bald Cypress Way, Tallahassee, Florida 32399-3251, Attn: Medical Compliance Officer, STATE OF FLORIDA DEPARTMENT OF HEALTH - DEPARTMENT OF HEALTH, ) . )- PETITIONER, ) ) ; Vv. - ) CASE NO. 1999-61457 i +) FRANK ELEUTERIO GUTIERREZ, M.D, ) . ). . RESPONDENT. ) . . ADMINISTRATIVE COMPLAINT 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 - Frank Eleuterio Gutierrez, 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 456, Florida Statutes, and Chapter 458, Florida Statutes. Pursuant to the: provisions of Section 20. 43(3), 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 fs and has been at all times material | hereto a licensed physician in the state of Florida, having been issued license number ME 0034375. Respondent's last known address is 3075 E. Commercial Bivd,, Ft. Lauderdale, FL 33302. _ 3. Respondent Specializes in Family Medicine and is not board certified, 4. On or about October 19, 1995, Patient AP, a forty-eight-(48) year old male, presented to Respondent with complaints of discomfort in the right chest, Respondent ordered a chest x-ray in order to rule out a right fractured rib. 5. On or about October 27, 1995, a chest x-ray was performed and interpreted by the radiologist as revealing a t-cm. nodule of indeterminate nature in Patient AP's . right lower lung. The radiologist recommended that Respondent compare this x-ray with any of Patient A.P.'s prior chest x-rays and obtain a CT scan. 6. Respondent did not compare Patient A.P's chest x-ray with any of Patient AP's previous x-rays and did not obtain a CT scan. In addition, Respondent did not - document the performance of, or the justification for not performing, a comparison of Patient A.P.'s chest x-ray with his previous chest x-rays, nor did he document a . justification for not obtaining a CT scan for Patient A.P. 7. In or about December of 1998, Patient A.P. again presented to Respondent with complaint of cough for five months. Respondent sent Patient A.P, for a chest x-ray, 8. On or about December 9, 1998, Patient A.P.'s chest x-ray Tevealed a one centimeter Jesion in the right lung. The Radiologist recommended that @ CT scan. be performed. ; | 9. On or about December 21, 1998, a CT scan was performed which revealed trregular nodular infiltrates in Patient AP's mid-anterior lungs bilaterally, The | : Radiology report stated ‘that Patient A.P.'s mid-left lung had underlying neoplastic tissue and Patient A.B.'s right lung was Suspicious for neoplasm as well as marked. bullous disease. “10. Respondent did not perform any further follow-up studies on the irregular nodular infiltrates noted in Patient A.P.'s mid-anterior lungs bilaterally, Also, Respondent did not document the performance of follow-up Studies on Patient A.P,'s suspicious area -or document a justification for not following up on the results of the CT scan, Lo, 11. On or about July 6, 1999, Patient A.P. presented at the Office of another physician who performed a work-up, including chest x-rays and CT scan, Patient A.P. was subsequently referred to an €ar, nose, and throat specialist for a neck mass. A biopsy of the neck mass was performed and revealed a squamous cell carcinoma, which was thought to have metastasized from the right lung primary site of carcinoma. 12. A reasonably prudent similar physician would have compared Patient A.R's chest x-ray, of on or about October 27, 1995, with previous x-rays of Patient A. B's chest and would have obtained a CT scan of Patient A.P.'s chest. 13. A reasonably prudent similar physician would have followed up on the CT” scan of on or about December 21, 1998, which revealed irregular nodular Infiltrates in - Patient AP's mid-anterior lungs noted bilaterally. COUNT ONE 14. Petitioner reaileges and incorporates paragraphs one (t) through thirteen a (13), as if fully set forth herein this Count One. 15. Respondent failed in his care and treatment of Patient A-P. by: a) failing to compare Patient A.P's chest x-ray of on or about October 27, 1995, with any of Patient A.P's previous x-rays; b) failing to obtain a CT scan on or about October 27, 1995; and/or C) failing to follow up on a CT scan performed on or about December 21, 1998, which revealed irregular nodular infiltrates, : 16. Based on the foregoing, Respondent violated Section 458,331(1)(t), Florida Statues, by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, Cc + 17. Petitioner realleges and incorporates paragraphs one (1) through thirteen- (13) and paragraph fifteen (15) as if fully set forth herein this Count Two. 18. Respondent failed to document the performance of, or a justification for not performing: a) aCT Scan on or about October 27, 1995; b) a comparison of the chest x-ray of October 27, 1995 with Patient AP's . previous x-rays; and/or . , C) follow-up studies on the CT scan performed on or about December 21, 1998, 19. Based on the foregoing, Respondent violated Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drags prescribed, dispensed, or administered; and reports of. - consultations and hospitalizations. WHEREFORE, the Petitioner respectfully requests the Board of Medicine enter an order imposing one. or more of the following penalties: permanent revocation or. : suspension of the Respondent's license, restriction of the Respondent's practice, imposition of an 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 456.073(4), Florida Statutes, and/or . any other relief that the Board deems appropriate. SIGNED this at aa day of __ VV t _, 2001. F obert G. Brooks, M.D., Secretary DEPARTMENT OF HEALTH DEPUTY CLERK CLERK YabiR, enon Nancy M. Snurkowgki pare_S [fq Chief Attorney, Practitioner Regulation COUNSEL FOR DEPARTMENT: ; Carol Lanfri Senior Attorney .- Agency for Health Care Administration P, 0. Box 14229 Tallahassee, Florida 32317-4229 Florida Bar # 110132 CAL/cab PCP: April 27, 2001 ope. PCP Members: El-Bahti, Tucker, Pardue |

Docket for Case No: 01-002045PL