STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD OF ) MEDICINE, )
)
Petitioner, )
)
vs. )
)
KURT STEVEN DANGL, M.D., )
)
Respondent. )
Case No. 04-2707PL
)
RECOMMENDED ORDER
Pursuant to notice, a final hearing was held in this case on January 10 and 11, 2005, in Sarasota, Florida, before
Susan B. Harrell, a designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Irving Levine, Esquire
Diane K. Keisling, Esquire Department of Health
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
For Respondent: Allen Grossman, Esquire
Gray, Harris & Robinson, P.A.
301 South Bronough Street, Suite 600 Post Office Box 11189
Tallahassee, Florida 32302-3189 STATEMENT OF THE ISSUES
Whether Respondent violated Subsections 458.331(1)(d), 458.331(1)(m), 458.331(1)(t), 458.331(1)(ll), and
458.331(1)(nn), Florida Statutes (2001),1 and, if so, what discipline should be imposed.
PRELIMINARY STATEMENT
On April 29, 2003, Petitioner, the Department of Health, Board of Medicine (the Department), filed a five-count Administrative Complaint, alleging that Respondent, Kurt Steven Dangl, M.D. (Dr. Dangl), violated Subsections 458.331(1)(t), 458.331(1)(m), 458.331(1)(nn), 458.331(1)(ll), and
458.331(1)(d), Florida Statutes. Dr. Dangle requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings on August 3, 2004, for assignment of an administrative law judge to conduct a final hearing.
The case was originally scheduled to be held on November 8 and 9, 2004, but was continued to January 10 and 11, 2005. At the final hearing, the Department called the following witnesses: C.S., Dr. John Robert Leikensohn, Stacy Scott, and Dr. John J. Obi. Petitioner's Exhibits 1 through 5 were admitted in evidence. At the final hearing, Dr. Dangl called the following witnesses: Barbie Beaver, Ruth Schneider, Andrea Gunst, Betsy O'Neil Shecter, and Dr. William Henry Frazier.
Respondent's Exhibits 1 through 9 were admitted in evidence. The Department was given leave to file the deposition of
Shirley Galbraith after the final hearing, and Dr. Dangl was
given leave to file the deposition of Babette Smith Agett after the final hearing. Both depositions were filed on February 22, 2005, and are admitted in evidence.
The parties filed a Joint Prehearing Stipulation on December 29, 2004. In section E of the pre-hearing stipulation, the parties agreed to ten statements of facts. Those facts have been incorporated in this Recommended Order.
The Transcript was filed on February 2, 2005.
On February 23, 2005, Dr. Dangl filed Respondent's Motion to place case in abeyance pending the issuance of a final order in Department of Health v. Dangl, DOAH Case No. 04-2708PL. The motion was granted. On May 5, 2005, Dr. Dangl filed a Joint Status Report and Respondent's Motion to Continue to Hold This Matter in Abeyance. The status report advised that a Final Order had been entered revoking Dr. Dangl's license and
Dr. Dangl had filed an appeal to the First District Court of Appeal. An order was entered denying the motion to continue the abeyance and ordering the parties to file their proposed recommended orders on or before May 24, 2005. The parties timely filed their proposed recommended orders, which have been considered in rendering this Recommended Order.
FINDINGS OF FACT
The Department is the state agency charged with regulating the practice of licensed physicians pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes.
Dr. Dangl, whose address of record is 3900 Clark Road, Suite E-1, Sarasota, Florida 34233, was issued Florida license number ME 71286 to practice medicine in Florida. During all relevant periods of time, he was not board-certified by the American Board of Medical Specialties or by any agency recognized by the Board of Medicine.
Dr. Dangl is the holder of a D.M.D. degree from the Washington University School of Dental Medicine in St. Louis, Missouri. He is not licensed as a dentist in Florida, but he has previously held dental licenses in Missouri, Pennsylvania, and Virginia. He is specialty certified by the American Board of Oral and Maxillofacial Surgery. This specialty is related to the practice of dentistry.
During all relevant periods of time, Dr. Dangl's office was fully and properly registered as an office surgical facility.
During all relevant periods of time, Dr. Dangl did not have hospital privileges.
On August 17, 2001, C.S., a female who was at that time
63 years old, came to Dr. Dangl's office for a consultation
regarding facial rejuvenation and body contouring. Dr. Dangl saw C.S. and recommended "that she consider cervicofacial rhytidectomy with full face carbon dioxide laser resurfacing and autogenous fat transfer to the facial area." He further determined that the "degree of liposity in the abdomen and flanks is minimal and this can also be treated at the same time with low-volume tumescent liposuction."
Prior to her consultation with Dr. Dangl, C.S. had seen an advertisement for Dr. Dangl in the "Sarasota Herald-Tribune." The advertisement listed Dr. Dangl as "Kurt Dangl, M.D., FAACS" and underneath his name appeared the words "Board Certified." From reading the advertisement, C.S. assumed that Dr. Dangl was board-certified in cosmetic or plastic surgery.
C.S. returned to Dr. Dangl's office on August 21, 2001, for preoperative counseling. She signed consent forms for the procedures to be performed. The consent forms listed potential risks and complications involved with the procedures. Complications included infection, wound breakdown, and skin necrosis. The consent forms stated that Dr. Dangl did not guarantee specific results and that wound healing was outside the control of the patient and Dr. Dangl. On the printed consent forms the abbreviation "D.M.D." followed Dr. Dangl's name. No evidence was presented that the consent forms were being used as advertisements.
C.S.'s medical records in Dr. Dangl's files indicate a blood sample was taken from C.S. on August 21, 2001, and sent to AccuLab. An AccuLab report dated August 22, 2001, indicated that C.S. had a slightly lowered hemoglobin level of 35.5.
Based on a notation on the report, it appeared that Dr. Dangl reviewed the report on August 23, 2001. There is a handwritten note on the AccuLab report that the hemoglobin count was "ok for planned procedure." Dr. Dangl did not advise C.S. prior to the surgical procedures that her hemoglobin count was low.
Dr. Dangl's records indicate that C.S. gave a medical history prior to the surgery and that Dr. Dangl performed a physical examination of C.S. prior to the surgery. C.S. advised Dr. Dangl that she had had her coccyx removed about six weeks before her scheduled cosmetic surgery.
On August 28, 2001, C.S. returned to Dr. Dangl's office to have Dr. Dangl perform a face and neck lift, laser resurfacing of the face, removing fat from her abdomen and flanks, and transferring some of the fat from the abdomen and flanks to specific areas in her face.
Betsy Shecter, who is licensed as an advance registered nurse practitioner in Florida, was the nurse anesthetist for C.S.'s procedures. Ms. Shecter's first contact with C.S. on August 28, 2001, occurred at 13:05, when she interviewed C.S. and then escorted C.S. to the operating room.
At 13:15, C.S. was given valium, and an IV infusion of propofol and Sufenta was placed in C.S.'s arm around 13:20. Propofol is an anesthetic and Sufenta is a synthetic narcotic. C.S. was prepped and draped around 13:30, and a local anesthesia was injected at 13:35. Because the local anesthesia required about
20 to 30 minutes to become active, Dr. Dangl did not make the first incision until 14:05.
The liposuction procedure to harvest the fat for a fat transfer occurred between 14:05 and 15:00. After liposuction, a local anesthesia was injected in the areas where the face lift would be performed. At 15:20, a garment was applied to the areas where fat had been harvested to keep the swelling down. Sequential leg compressions were put in place to avoid blood clots. The actual face lift started around 15:30 and ended around 20:20, when Ms. Shecter put Opticane ointment and corneal shields in C.S.'s eyes for the laser procedure. The laser procedure began around 20:25. At around 21:00, Ms. Schecter turned off the propofol drip to which Demerol had been added. The actual laser surgery stopped at approximately 20:55. The eye shields were removed at 21:15. The recovery time in the operating room commenced at 21:00 when the drugs were stopped and ended around 21:45. The recovery time continued until C.S. was discharged at 22:30. At the time of her discharge, C.S.'s vital signs were stable, and she was alert and oriented.
C.S. was told prior to the surgery that someone would have to stay with her overnight after the surgery. C.S. made arrangements for her daughter and C.S.'s sister to stay overnight with her. C.S.'s sister had training and experience as a certified nurse assistant.
Prior to the surgery, Dr. Dangl told C.S. that she would probably be ready to go home around four or five o'clock (16:00 or 17:00). She made arrangements with her daughter to pick her up around 17:00. When her daughter inquired from Dr. Dangl's office at 17:00 whether her mother was ready to leave, she was advised that surgery had not been completed.
C.S. was not discharged until over five hours after her daughter first contacted Dr. Dangl's office.
C.S.'s daughter became visibly upset when she saw her mother after the surgery and wanted to have C.S. admitted to a hospital. Because of the daughter's agitation, arrangements were made for a licensed practical nurse, Ruth Schneider, to stay overnight with C.S.
C.S.'s daughter and sister had some difficulty in getting C.S. into the car for the trip home because of the sequential leg compressions, which C.S. wore home. Dr. Dangl and Ms. Shecter put C.S. in the car. At the time that C.S. was put in the car, C.S. was able to stand on her own and able to walk with support.
When C.S. arrived home, Ms. Schneider assisted C.S. into her home. At that time, C.S. was alert and oriented and could ambulate with assistance. When C.S. got in her home, she was able to drink and take nourishment. Ms. Schneider helped
C.S. ambulate to the bathroom. C.S. sat in a recliner and slept some during the night. At the close of Ms. Schneider's eight- hour shift, she left C.S. in the care of C.S.'s sister.
C.S. was scheduled for a follow-up visit with
Dr. Dangl on August 29, 2001, but C.S.'s sister was unable to arouse C.S. and get C.S. up to go to the doctor's office.
Dr. Dangl's office was advised that C.S. could not come to his office.
Dr. Dangl came to C.S.'s home around nine or ten o'clock in the evening of August 29, 2001, for a follow-up visit. He removed the dressings from her wounds and applied an antibiotic ointment. Dr. Dangl apparently did not have bandages with him that he could place on the surface of the wounds because he asked the sister for sanitary napkins to use as a dressing. C.S.'s sister retrieved sanitary napkins from the bathroom, and Dr. Dangl, using scissors from a nearby basket, cut the napkins up and used them to dress the wounds. He reused the Ace-type bandages which he had removed and placed them over the sanitary pads. C.S. was instructed to come to Dr. Dangl's
office on August 31, 2001, for her 72-hour postoperative evaluation.
On August 31, 2001, C.S.'s sister took C.S. to
Dr. Dangl's office. C.S.'s sister did not accompany C.S. into the treatment room. Dr. Dangl removed the dressings and inspected the wounds. There was no evidence of hematoma, seroma, or infection. He noted that there was a "small area of devascularization immediately anterior to the left tragus on the left side" and described the areas as "about the size of a quarter." His notes indicate that the area would be "followed expectantly and debrided as necessary." He was to follow up with C.S. in 48 or 72 hours.
When Dr. Dangl came out of the treatment room, he saw C.S.'s sister and asked her what was wrong with her. She explained that she was tired from being up all night with C.S. Dr. Dangl asked the sister why she did not take one of the sleeping pills that he had prescribed for C.S. The sister replied, "What? Why would you tell me to do that, take someone else's medicine?" Prior to this conversation, Dr. Dangl had not examined the sister in any way, gotten her medical history, or asked her whether she was taking any other medications.
Over the next several days, C.S. complained to her sister that she was burning, hurting all over, and was not able to sleep or rest. On September 3, 2001, C.S.'s daughter called
Dr. Dangl's office and advised that C.S. had a foul smelling discharge in front of her left tragus. Dr. Dangl called in a prescription for antibiotics for C.S. and told C.S.'s daughter that he wanted to see C.S. the following day.
Dr. Dangl saw C.S. in his office on September 4, 2001.
His examination of C.S. revealed that the size of the devascularized area in front of her left tragus had increased four times. There was some foul smelling yellow-brown discharge coming from this area as well as from several areas under the mandible approximately following the locations of the previously placed drains. He debrided the devitalized area and irrigated the discharge areas with an antibiotic solution and hydrogen peroxide. An intravenous antibiotic was administered, and wound cultures were obtained from various sites.
Dr. Dangl again saw C.S. in his office on the evening of September 4, 2005. There was a minimal amount of drainage and no foul smelling odor.
On September 5, 2001, C.S. again presented to
Dr. Dangl's office for postoperative infection evaluation and treatment. There was a mild purulent discharge in the left anterior neck and at the left post auricular area. Dr. Dangl debrided the wound area and irrigated the wound area with sterile saline. C.S.'s pain medication was increased.
Dr. Dangl saw C.S. in his office on September 6, 2001, for further wound treatment. The laboratory results of the wound cultures indicated a light growth of E. coli. Dr. Dangl administered an antibiotic intravenously and removed necrotic tissue.
C.S. returned to Dr. Dangl's office on September 7, 2001. Her temperature was 100.6 degrees Fahrenheit, and she was complaining of significant discomfort. Dr. Dangl debrided the wound area. He examined the abdomen and flank incisions and found no evidence of infection or other signs of untoward wound healing.
C.S.'s daughter accompanied her mother to Dr. Dangl's office on September 7, 2001, and expressed her concerns about her mother's condition. The daughter felt that her mother might benefit from hospitalization. Dr. Dangl referred C.S. to
Dr. Manual Gordillo for evaluation and determination of the need for hospitalization. Dr. Gordillo treated infectious diseases.
Dr. Gordillo saw C.S. and advised C.S. and her daughter that the treatment for the infection could be done in the hospital or on an outpatient basis, but expressed his opinion that admission to the hospital was borderline. C.S. opted for hospitalization and was admitted to Doctors Hospital of Sarasota on September 7, 2001.
After C.S. was admitted to the hospital, additional cultures were taken of the wound sites as well as the sites in the abdomen where fat had been harvested. Based on the laboratory results, C.S. had a scant growth of E. coli from her face wound culture and a moderate growth of staphylococcus aureus from abdominal wound culture. C.S. was placed in isolation because of the staph infection.
C.S. was experiencing a great deal of pain from her wounds while she was in the hospital. Because of her difficulty with pain management, she was put on a PCP pump to help control the pain.
While she was in the hospital, Dr. Dangl visited her several times to observe. He did not perform any treatment on
C.S. while she was hospitalized. C.S. told Dr. Dangl that she wished that he would not visit her while she was in the hospital, but he continued to come. The evidence is not clear and convincing that C.S. conveyed to Dr. Dangl that she did not want his services any longer, particularly in light of C.S.'s paying office visits to Dr. Dangl for treatment after she was discharged from the hospital. However, the evidence is clear and convincing that C.S. did not want Dr. Dangl to visit her in the hospital and that she told him so. Dr. Dangl's medical records do not establish a medical basis for continuing to see
C.S. in the hospital after she asked him not to do so.
C.S. was discharged from the hospital on September 13, 2001. At that time, she was feeling much better, her wounds were stable, and her wounds were not clinically overtly infected. She was directed to follow up with Dr. Dangl as soon as the following day and to follow up with Dr. Gordillo within a week.
After her discharge from the hospital, C.S. continued to see Dr. Dangl on September 15, 17, 19, and 21, 2001.
Dr. Dangl changed the dressings and, on two of the visits, did some minimal debridement. C.S. discontinued seeing Dr. Dangl after her office visit on September 21, 2001.
On September 24, 2001, C.S. began seeing Dr. John Leikensohn, a plastic and reconstructive surgeon, for wound treatment. He diagnosed C.S. as having massive skin necrosis.
When C.S. began seeing Dr. Leikensohn, she was asked to sign a medical release for her medical records from
Dr. Dangl, and she did so. Dr. Leikensohn's staff contacted Dr. Dangl's office by telephone to get C.S.'s records. The medical release was sent by facsimile transmission to
Dr. Dangl's office with a request for C.S.'s records. By October 2, 2001, Dr. Leikensohn had not received the records from Dr. Dangl. Dr. Leikensohn asked C.S. and C.S.'s daughter to stop by Dr. Dangl's office and get a copy of the records.
C.S. went to Dr. Dangl's office and personally asked his staff for her records, but was not given the records. She also submitted a written request for her records, but did not receive them pursuant to the written request.
Barbie Beaver, Dr. Dangl's office coordinator, does not recall when or from whom she actually received a request for C.S.'s records, but she does remember sending C.S.'s medical records to Barbara Dame, Dr. Dangl's risk manager, for her review on September 27, 2001. When Dr. Dangl's office received a request for a patient's records, she would advise Dr. Dangl and he would decide what to do. She gave a request for C.S.'s medical records to Dr. Dangl, and he instructed her to send them to Ms. Dame for review prior to releasing the records.
Ms. Beaver does not recall when she actually sent C.S.'s records to the person who requested them.
During his treatment of C.S., Dr. Dangl wrote several prescriptions for C.S. The prescription scripts contained the abbreviation "D.M.D." after his name. No evidence was presented that the prescriptions were intended to be used for advertising purposes.
Dr. John J. Obi, a board-certified plastic surgeon, testified as the Department's expert witness. It is Dr. Obi's opinion that it would have been good medical practice to have advised C.S. of her low hemoglobin prior to surgery, but that
because the blood level was not dangerously low, he could not "say that's a complete deviation from the standard of care."
Dr. Obi further opined that Dr. Dangl exceeded the eight-hour limitation on elective cosmetic surgery in a physician's office when he performed the procedures on C.S. on August 28, 2001. Dr. Obi's opinion is based on his incorrect understanding that the anesthesia was stopped at 22:00. Thus, even if the time for calculating surgical procedures ran from the time the anesthesia was first administered at 13:15 until it was stopped at 21:00, the length of time for the surgical procedures was seven hours and forty-five minutes.
Dr. Obi opined that the recovery time for C.S. was insufficient. Again he based his opinion in part on his incorrect assumption that the anesthesia was discontinued at 22:00.
Dr. Obi creditably testified that Dr. Dangl's continuing to see C.S. in the hospital after she told him that she did not want him to visit fell below the prevailing standard of care. Dr. William Frazier, the expert who testified on behalf of Dr. Dangl, gave no opinion on whether Dr. Dangl's continued hospital visits after being told not to visit by C.S. violated the standard of care.
Dr. Obi opined that it was a violation of the standard of care for Dr. Dangl to tell C.S.'s sister to take some of
C.S.'s prescription sleeping pills without examining or taking a medical history of the sister. Dr. Frazier was of the opinion that the conversation between Dr. Dangl and C.S.'s sister did not fall below the standard of care. Dr. Frazier's opinion was based on his misunderstanding that C.S.'s sister had asked
Dr. Dangl if it was appropriate for her to take a sleeping medication that she already had.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2004).
The Department has the burden to establish the allegations in the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v.
Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). In Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983), the court developed a working definition of "clear and convincing evidence," which has been adopted by the Florida Supreme Court in In re Davey, 645 So. 2d 398 (Fla. 1994). The court in Slomowitz stated:
[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.
Slomowitz, 429 at 800.
The Department alleged that Dr. Dangl violated Subsection 458.331(1)(t), Florida Statutes, which provides that the following acts constitutes grounds for disciplinary action:
Gross or repeated malpractice or the failure 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. The board shall give great weight to the provisions of
s. 766.102 when enforcing this paragraph. As used in this paragraph, "repeated malpractice" includes, but is not limited to, three or more claims for medical malpractice within the previous 5-year period resulting in indemnities being paid in excess of $25,000 each to the claimant in a judgment or settlement and which incidents involved negligent conduct by the physician. As used in this paragraph, "gross malpractice" or "the failure 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," shall not be construed so as to require more than one instance, event, or act. Nothing in this paragraph shall be construed to require that a physician be incompetent to practice medicine in order to be disciplined pursuant to this paragraph.
The Department alleged that Dr. Dangl violated Subsection 458.331(1)(t), Florida Statutes, by "exceed[ing] the
eight (8) hour limit on office surgery by performing non- emergent cosmetic surgery on Patient C.S. for eight (8) hours and forty-five (45) minutes." Florida Administrative Code Rule 64B8-9.009(2)(f) provides: "For elective cosmetic and plastic surgery procedures performed in a physician's office,
the maximum planned duration of all surgical procedures combined must not exceed 8 hours."
The Department has failed to establish that Dr. Dangl exceeded the eight-hour limit on office surgery. Florida Administrative Code Rule 64B8-9.009(2) does not establish how the time for performing surgery is calculated. There was some testimony the time should be calculated from the time the surgeon makes the first incision to the time the surgeon concludes surgery. Other testimony indicated the time should be calculated from the first administration of anesthesia until the anesthesia is turned off. If the hours are calculated either way, Dr. Dangl did not exceed the eight-hour limit.
The Department alleged that Dr. Dangl violated Subsection 458.331(1)(t), Florida Statutes, by "discharg[ing] Patient C.S. home thirty (30) minutes after she had undergone eight (8) hours and forty-five (45) minutes of cosmetic surgery under intravenous surgery." The Department has failed to establish this allegation. C.S.'s recovery time began at 21:00
and ended at 22:30 when she was discharged. C.S. was stable, alert, and oriented when she was discharged.
The Department alleged that Dr. Dangl violated Subsection 458.331(1)(t), Florida Statutes, by "perform[ing] cosmetic surgery on Patient C.S. without informing her that she had a low blood count, which indicated anemia." The Department has failed to establish by clear and convincing evidence that Dr. Dangl's failure to advise C.S. of her hemoglobin count was a violation of Subsection 458.331(1)(t), Florida Statutes. The Department's own expert opined that because the blood level was not dangerously low, it was not a complete deviation from the standard of care to not inform C.S.
The Department alleged that Dr. Dangl violated Subsection 458.331(1)(t), Florida Statutes, by "perform[ing] debridement of Patient C.S.'s wounds while she was hospitalized at Doctor's Hospital, although [Dr. Dangl] had no hospital privileges." The Department failed to present any evidence that established this allegation.
The Department alleged that Dr. Dangl violated Subsection 458.331(1)(t), Florida Statutes, by "continu[ing] to visit and treat Patient C.S. during her hospitalization at Doctors Hospital even after Patient C.S. asked [Dr. Dangl] to stop seeing her." The Department has established this allegation by clear and convincing evidence.
The Department alleged that Dr. Dangl violated Subsection 458.331(1)(t), Florida Statutes, by "advising S.G., Patient C.S.'s sister, who was not his patient, to take sleeping pills that he prescribed for Patient C.S. [and] . . . not examin[ing] [or] review[ing] her physical and medical history prior to advising her to take medication that was prescribed for someone else." The Department has established this allegation by clear and convincing evidence. Dr. Dangl, in a medical office setting, asked C.S.'s sister what was wrong with her and then told her to take one of C.S.'s sleeping pills. This was not a casual cocktail party conversation, and it was initiated by Dr. Dangl and not by C.S.'s sister.
The Department has established by clear and convincing evidence that Dr. Dangl failed to practice medicine with that level of care, skill, and treatment which is recognized as being acceptable under similar conditions and circumstances by continuing to see C.S. in the hospital after she asked him not to visit and by telling C.S.'s sister to take a sleeping pill prescribed for C.S. without examining or taking a medical history from C.S.'s sister.
Subsection 458.331(1)(m), Florida Statutes, provides that disciplinary action may be taken for the following acts:
Failing to keep legible, as defined by department rule in consultation with the board, medical records that identify the
licensed physician or the physician extender and supervising physician by name and professional title who 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.
The Department alleged that Dr. Dangl violated Subsection 458.331(1)(m), Florida Statutes, by failing to note "a medical basis justifying the appropriateness of eight (8) hours and forty-five (45) minutes of non-emergent cosmetics surgery" and "justifying the discharge of Patient C.S. home, thirty minutes (30) minutes after she had undergone eight (8) hours and forty-five (45) minutes of intravenous sedation procedures." The Department failed to establish that the surgical time was longer than eight hours and that the recovery time was 30 minutes; thus, the Department has failed to establish that Dr. Dangl violated Subsection 458.331(1)(m), Florida Statutes, as it relates to the medical basis for the surgical and recovery times.
The Department alleged that Dr. Dangl violated Subsection 458.331(1)(m), Florida Statutes, by failing to note "inconsistencies in Patient C.S. medical records with the care
witnessed by her caregiver, S.G." The Department has failed to establish this allegation by clear and convincing evidence.
The Department alleged that Dr. Dangl violated Subsection 458.331(1)(m), Florida Statutes, by failing to note a medical basis justifying treating C.S. while she was hospitalized and Dr. Dangl did not have hospital privileges. The Department failed to establish this allegation by clear and convincing evidence.
The Department alleged that Dr. Dangl violated Subsection 458.331(1)(m), Florida Statutes, by failing to note "a medical basis justifying the appropriateness of continuing to visit Patient C.S. in the hospital after Patient C.S. asked Respondent not to visit." The Department has established this allegation by clear and convincing evidence.
The Department alleged that Dr. Dangl violated Subsection 458.331(1)(m), Florida Statutes, by failing to note "the basis for not providing the Patient C.S.'s medical records pursuant to properly executed and authorized requests from Patient C.S., her subsequent treating physician and her attorney." The Department has failed to establish that such information is required to be kept in his medical records, and, thus, has failed to establish that such conduct constitutes a violation of Subsection 458.331(1)(m), Florida Statutes.
The Department alleged that Dr. Dangl violated Subsection 458.331(1)(ll), Florida Statutes, which provides that disciplinary action may be taken for the following act: "[a]dvertising or holding oneself out as a board-certified specialist, if not qualified under s. 458.3312, in violation of this chapter." Section 458.3312, Florida Statutes, provides:
A physician licensed under this chapter may not hold himself or herself out as a board- certified specialist unless the physician has received formal recognition as a specialist from a specialty board of the American Board of Medical Specialties or other recognizing agency approved by the board. However, a physician may indicate the services offered and may state his or her practice is limited or one or more types of services when this accurately reflects the scope of the practice of the physician.
The Department has established by clear and convincing evidence that Dr. Dangl violated Subsection 458.331(1)(ll), Florida Statutes. Advertisements for Dr. Dangl which appeared in a local newspaper, indicated that he was "Board Certified." However, Dr. Dangl did not have board certification from the American Board of Medical Specialties or other recognizing agency approved by the Board of Medicine.
The Department alleged that Dr. Dangl violated Subsection 458.331(1)(nn), Florida Statutes, which provides that "[v]iolating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto" is a ground for disciplinary
action. The Department alleged that Dr. Dangl violated Subsection 456.057(4), Florida Statutes, which provides:
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. The
furnishing of such report or copies shall not be conditioned upon payment of a fee for services rendered.
The Department established by clear and convincing evidence that Dr. Dangl violated Subsection 458.331(1)(nn), Florida Statutes, by violating Subsection 456.057(4), Florida Statutes. Dr. Dangl failed to timely provide the records to Dr. Leikensohn, C.S.'s subsequent treating physician, after Dr. Dangl received a written authorization from C.S. The
evidence established that instead of providing the records when requested that Dr. Dangl instructed his staff to send the records to his risk manager for review.
The Department alleged that Dr. Dangl violated Subsection 458.331(1)(d), Florida Statutes, which provides that false, deceptive, or misleading advertising constitutes grounds for disciplinary action. The allegation is based on the inclusion of "D.M.D." following his name on his Informed Consent
Form for authorization to perform surgery on C.S. and on his prescription scripts to C.S. Webster's II New Riverside
University Dictionary, (1984), defines "advertising" as [t]he act of calling public attention to a product or business." The Department did not establish that the purpose of the Informed Consent Form and the prescription scripts was to call public attention to his medical practice. The Department has failed to establish that Dr. Dangl violated Subsection 458.331(1)(d), Florida Statutes.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a final order be entered finding that Dr. Dangl violated Subsections 458.331(1)(m), 458.331(1)(t), 458.331(1)(ll), and 458.331(1)(nn), Florida Statutes; finding
that Dr. Dangl did not violate Subsection 458.331(1)(d), Florida Statutes; imposing an administrative fine of $2,000 for the violation of Subsection 458.331(1)(nn), Florida Statutes; imposing an administrative fine of $3,500 for violations of Subsection 458.331(1)(t), Florida Statutes; imposing an administrative fine of $1,000 for the violation of Subsection 458.331(1)(ll), Florida Statutes; imposing an administrative fine of $1,000 for the violation of Subsection 458.331(1)(m), Florida Statutes; suspending his license for two years; and
requiring Dr. Dangl to attend continuing medical education classes to be specified by the Board of Medicine.
DONE AND ENTERED this 16th day of August, 2005, in Tallahassee, Leon County, Florida.
S
SUSAN B. HARRELL
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 16th day of August, 2005.
ENDNOTE
1/ All references are to the 2001 version of the Florida Statutes, unless otherwise indicated.
COPIES FURNISHED:
Irving Levine, Esquire Diane K. Keisling, Esquire Department of Health
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
Allen Grossman, Esquire
Gray, Harris & Robinson, P.A.
301 South Bronough Street, Suite 600 Post Office Box 11189
Tallahassee, Florida 32302-3189
R. S. Power, Agency Clerk Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Larry McPherson, Executive Director Board of Medicine
Department of Health 4052 Bald Cypress Way
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 |
|---|---|---|
| Oct. 18, 2005 | Agency Final Order | |
| Aug. 16, 2005 | Recommended Order | Respondent advertised that he was board-certified by the American Board of Medical Specialties, when he was not; failed to timely provide medical records; and continued to visit the patient in the hospital after she requested that he not do so. |
