STATE OF FLORIDA — | DEPARTMENT OF HEALTH DEPARTMENT OF HEALTH, , PETITIONER, Vie CASE NO. 2007-23740 ‘ 1 DHIRAJ WARMAN, M.D., RESPONDENT. ADMINISTRAT IVE COMPLAINT COMES Now Petitioner, Department of Health, by and through its undersigned counsel, and files this Administrative Complaint before the ‘ Board of ned against Respondent, Dhiraj Warman, M. D., and in support thereof alleges: 1. Petitioner is the state department charged with regulating the practice of medicine pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 458, Florida Statutes. 2. At all times material to this Complaint, Respondent was a licensed physician within the State of Florida, having been issued license number ME 68576. | J:APSU\Medical\Robert Milne\Cases\WARMAN 2007-23740\Warman,AC.doc pOd GO*LL OLO@ OL *ON so:0T Ode OT AON 3. | Respondent's address of record is 7667 Aldersyde Drive, Middleburg Heights, Ohio, 44130. 4. | In or around May 2007, Respondent purchased a laser manufactured ‘by Syneron. The laser was the E-max/AS10812 model, bearing the serial number 1818. 5. | Respondent purchased the laser after being approached by the manufacture and Nancy Garrity. 6, | _ Respondent hired Nancy Garrity to operate the laser because he was advised by the manufacturer that she was an Advanced Registered Nurse Practitioner CARNP”), 7. On or about January 31, 2005, the Department of Heaith, Board of Nursing issued Nancy Garrity Registered Nurse License Number 9226667, 8. | On or about September 29, 2005, the Department of Health, Board of Message Therapy issued Nancy Garrity Message Therapist License Number 45164, 9, , On or about March 22, 2007, the Department of Health, Board of Electrology issued Nancy Garrity Temporary Electrology Permit Number 1285. TAPSU\Medieal\Robert Milne\Cases\WARMAN 2007-23740\Warman.AC.doc 90d GO*LL OlO@ OL *ON co:0T oOT0e OT AON 10, | Nancy Garrity is not licensed as an ARNP in the State of Florida. 11. ‘The E-max/AS10812 is a laser or light-based device. 12. ‘Section 458.348(3), Florida Statutes (2006, 2007), states all: | protocols relating to electrolysis or electrology using Jaser or light-based hair removal or reduction by persons other than physicians licensed under this chapter or chapter 459 shall require the person performing such service to be appropriately trained and work only under the direct supervision and responsibility of a physician licensed under this chapter or chapter 459, 13, Section 478.42(4), Florida Statutes (2006, 2007), defines an “electrolog st” as a person who engages in the practice of electrolysis. 14, Section 478.42(5), Florida Statutes (2006, 2007), defines “electrolysis or electrology" as the permanent removal of hair by destroying the hait-producing cells of the skin and vascular system, using equipment and devices approved by the board which have been cleared by and registered with the United States Food and Drug Administration and that are used pursuant to protocols approved by the board. 15. Section 478.49(1), Florida Statutes (2006, 2007), states no person may practice :electrology or hold herself or himself out as an J APSU\Medical\Robert Milne\Cases\WARMAN 2007-23740\Warman.AC.doe iF g0"d SO-bb Oboe OF 4ON 90:0T OT0¢e OT AON electrologist in this state unless the person has been issued a license by the department and holds an active license pursuant to the requirements of this chapter. . 16. | In or around July 2007, Nancy Garrity operated the E- max/AS10812 laser, owned by Respondent, at Prescribed Touch. Prescribed Touch was located at 3016 Land ©’ Lakes Boulevard, Land 0’ Lakes, Florida, 34639, Nancy Garrity operated the E-max/AS10812 laser without any supervision, 17. | On or about July 18, 2007, two Pasco County Sheriff's Department Detectives met with Department. of Health Unlicensed Activity Investigators regarding Nancy Garrity’s unlicensed activity. 18. On or about July 18, 2007, the Detectives presented to Prescribed Touch, outfitted with audio and video recording devices, posing as patients requesting laser treatment. 19. : Nancy Garrity advised the Detectives that she could provide the laser treatment at that time. 20. : Department of Health Unlicensed Activity Investigator Brian Bilbrey, arrived at Prescribed Touch and questioned Nancy Garrity. 21, | Investigator Bilbrey interviewed Respondent that same day. FAPSU\Medical\Robert Milne\Cases\WARMAN 2007-23740\Warman.AC.doc é0‘d SO7LL OlO@ OL *ON 90:0T oOT0e OT AON 22, Respondent stated Nancy Garrity was an ARNP and therefore physician supervision was not necessary. 23. Respondent was asked if there was a protocol agreement between the parties. | 24, Rule 64B8-56.002(4)(a), Florida Administrative Code, states: | _ the supervising physician and the electrologist shall develop jointly written protocols regarding the medical condition for _ individuals to receive laser and light-based hair removal’ or _ reduction treatment; specific conditions and the procedure for _ identifying conditions that require direct evaluation or specific consultation by the physician; treatment of routine minor _ problems resulting during or from laser and light-based hair removal or reduction; and detailed procedures to be followed in the event of emergency situations developing during the performance of or as a result of laser and light-based hair removal or reduction, These written protocols must be signed, dated, and maintained in a readily available location on the "premises where the electrologist practices, One copy shall be maintained by the supervising physician and one copy must be filed with the Department of Health. The written protocols which are kept on the premises of the electrologist will be readily available for inspection and review by agents of the Department of Health or the Board of Medicine. The parties to -@ protocol must notify the Department within 30 days of the termination of their professional relationship. 25. ‘The protocol agreement between Respondent and Nancy Garrity was not maintained in a readily available location on the premises where the electrologist practices. | JAPSU\Medical\Robert Milne\Cases\WARMAN 2007-23740\Warman.AC.doc 80 ‘d SO7LE OLO@ OL *ON 90:0T OT0¢e OT AON 26. Rule 64B8-56,002(4)(b), Florida Administrative Code, states the written protocol shall include and require that the initial consultation with each patient must include an examination and assessment by a physician licensed pursuant to Chapter 458 or 459, FS. 27, The initial. consultation with each patient seen at Prescribed Touch did not include an examination and assessment by a physician licensed pursuant to Chapter 458 or 459, Florida Statutes. 28. : Additionally, as of July 18, 2007, the E-max/AS10812 laser, a Class IV laser device, had not been registered with the Department of Health Buteau of Radiation Control, as required by Section 501.122, Florida Statutes. | 29. | Section 501.122(3)(a), Fiorida Statutes, states no person licensed to practice the healing arts, nor any other person, may use a Class Ill or a Class IV laser device or product as defined by federal regulations unless she or he has.complied with the rules governing the registration of such devices with the department promulgated pursuant to subsection (2). 30. : Section 501.122(2)(a), Florida Statutes, states the Department of Health may develop a program for registration of laser devices and uses J APSU\MedicahRobert Milne\Cases\WARMAN 2007-23740\Warman.AC.doc | 60d 9O-LL Oboe OL AON 90:0T OT0¢e OT AON i i. | : and of identifying and controlling sources and uses of other nonionizing radiations. : 31. During the Interview, Investigator Bilbrey informed Respondent that Nancy Garrity was not qualified to operate the laser equipment. 32, Respondent failed to verify Nancy Garrity’s licensure with the Florida Department of Health. 33. ‘On or about July 18, 2007, Investigator Bilbrey took the E- max/AS10812 laser into custody, 34. On or about July 22, 2007, the E-max/AS10812 laser was registered with the Department of Health Bureau of Radiation Control. 35, | On or about July 30, 2007, Investigator Bilbrey released the E- max/AS10812 laser to:Respondent. 36, on or about July. 30, 2007, Respondent stated that he was aware that Nancy Garrity was not licensed to perform laser hair removal under her temporary electrology permit. Respondent assured Investigator Bilbrey that Nancy Garrity would not use the laser until she was properly licensed, | 37. On or about August 13, 2007, Investigator Bilbrey received information from the Department of Health Bureau of Radiation Control JAPSU\Medical\Robert Milne\Cases\WARMAN 2007-23740\Warman.AC.doc Old €07L-L O08 OL *°N 20:0T OT0e OT AON that Respondent had registered the laser device at a new location of 24420 SR 54, Lutz, Florida, 33559. 38. On or about August 13, 2007, Investigator Bilbrey presented to 24420 SR 54, Lutz, Florida, 33559 and observed it to be a clinic named “Medi Weight Loss Clinic.” 39. On or about August 13, 2007, Nancy Garrity was standing outside of Medi Weight Loss Clinic and told Investigator. Bilbrey that she had performed laser hair removal that morning. 40. ‘on or about August 13, 2007, a warrant was issued for the arrest of Nancy Garrity for the charge of Unlicensed Practice of a Healthcare Profession. 41. | Nancy Garrity, employed by Respondent, was/is not properly licensed to operate a laser. ! COUNT ONE 42. | Petitioner realleges and incorporates paragraphs one (1) through forty-one (41) as if fully set forth herein, 43. Section 458,.331(1)(nn), Florida Statutes (2007), provides that violating any provision of this chapter or chapter 456, or any rules adopted JAPSU\Medical\Robert Milne\Cages\WARMAN 2007-23740\Warman.AC.doe i Lk *d €07LE OlO@ OL *°N 20:07 Ode OT AON pursuant thereto is grounds for disciplinary action by the Board of Medicine. | 44, ‘Respondent Violated Rule 6488-56.002(4)(a), Florida Administrative Code, by failing to maintain in a readily available location on the premises where the electrologist practices the protocol agreement between Respondent and Nancy Garrity. 45, Based on the foregoing, Respondent violated Section 4 458.331(1)(nn), Florida Statutes (2007), by violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto, by violating Rule 64B8-56.002(4)(a), Florida Administrative Code. | | COUNT TWO. 46. Petitioner realleges and incorporates paragraphs one (1) through forty-one (41) as if fully set forth herein, 47, “Section 458.331(1)(nn), Florida Statutes (2007), provides that violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto is grounds for disciplinary action by the Board of Medicine. | J\PSU\Medical\Rober Milne\Cases\WARMAN 2007-23740\Warman AC.doc él‘d €07L-L O08 OL *°N 20:07 Ode OT AON 48, Respondent violated Rule 64B8-56.002(4)(b), Florida Administrative Code, by failing to examine and assess each patient during the initial consultation. 49. Based on the foregoing, Respondent violated Section 458.3311 Florida Statutes (2007), by violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto, by violating Rule 6488-56,002(4)(b), Florida Administrative Code. | COUNT THREE 50. ‘Petitioner realleges and incorporates paragraphs one © through forty one (41) as if fully set forth herein. 51. ‘Section 458.331(1)(g), Florida Statutes (2007), provides that failing to perform any statutory or legal obligation placed upon a licensed physician is grounds for disciplinary action by the Board of Medicine. 52. | Respondent viclated Section 501.122, Florida Statutes (2007), by failing to timely register the E-max/AS10812 laser device with the Department of Health Bureau of Radiation Control. 53. | Based on the foregoing, Respondent Violated Section 458.331(1)(9), Florida Statutes (2007), by failing to perform a statutory or legal obligation, by violating Section 501.122, Florida Statutes (2007). JAPSU\Medical\Robert Milne\Cases\WARMAN 2007-23740\ Warman. AC.doc Bld €07LE OlO@ OL *°N 20:0T OT0e OT AON COUNT FOUR 54. Petitioner realleges and incorporates paragraphs. one (1) through forty-one (41) as if fully set forth herein. 55. Section 458.331(1)(w), Florida Statutes (2007), provides that delegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to. know that such person is not qualified by training, experience, or licensure to perform — them constitutes grounds for disciplinary action by the Board of Medicine. ' 56. Respondent delegated the professional responsibility of operating the E-max/AS10812 laser device to Nancy Garrity, a person Respondent knew or should have known was not qualified by licensure to | operate such equipment. | 57. Based on the foregoing, Respondent violated Section 458,331(1 (w), Florida Statutes (2007), by delegating professional responsibilities to a person when Respondent knows or has reason to know that such person is not qualified by training, experience, or licensure to | perform them. JAPSU\Medical\Robert Milne\Cases\WARMAN 2007-23740\Warman.AC.doc Plod BOtLL OLO@ OL *ON BO:0T oOT0e OT AON | | COUNT FIVE 58. Petitioner realleges and incorporates paragraphs one (1) through forty-one (41) as if fully set forth herein. 59. Section 458.331(1)(f), Florida Statutes (2007), provides that aiding, assisting, procuring, or advising any unlicensed person to practice medicine contrary to this chapter or to a rule of the department or the board constitutes grounds for disciplinary action by the Board of Medicine. 60. Respondent aided, assisted, procured, and/or advised Nancy Garrity in the unlicensed practice of medicine and the unlicensed practice of electrology. 61. | Based on the foregoing, Respondent violated Section 458.331(1)(f), Florida Statutes (2007), by aiding, assisting, procuring, and/or advising any unlicensed person to practice medicine contrary to this chapter or to a rule of the department or the board. WHEREFORE, Petitioner respectfully requests that the Board of Medicine enter an order imposing one or more of the following penalties: permanent revocation or suspension of Respondent's license, restriction of practice, imposition of an administrative fine, issuance of a reprimand, noes placement of the Respondent on probation, corrective action, refund of | J APSU\Medical\Robert Milne\Cases\WARMAN 2007-23 740\Warman, AC.doc Gl ‘d BOtLL OLO@ OL *ON BO:0T oOT0e OT AON fees billed qr collected, remedial education and/or any other relief that the Board deers appropriate. - sco this IE day of , 2009. Ana MM onte Ros, M.D,, M.P.H. States yrgeon General 7 Assistant General Counsel DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL 32399-3265 Florida Bar #622338 (850) 245-4640 (850) 245-4681 Fax PCP: barons 2009 PCP Members: Cohn ar — Reankey pA | | JAPSU\Medical\Robert Milne\Cases\WARMAN 2007-23740\ Warman. AC.doc Qkd BOFLL OLO@ OL *ON BO:0T oOT0e OT AON

Docket for Case No: 10-010165PL