STATE OF FLORIDA DEPARTMENT OF HEALTH DEPARTMENT OF HEALTH, Petitioner, Vv. DOH CASE NO.: 2008-13469 JORGE OSCAR WEKSLER, M.D., Respondent. ADMINISTRATIVE COMPLAINT COMES NOW, Petitioner, Department of Health, by and through its undersigned counsel, and files this Administrative Complaint before the Board of Medicine against Respondent, George Oscar Weksler, 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. Filed November 8, 2012 2:42 PM Division of Administrative Hearings 2. At all times material to this Complaint, Respondent was board certified in Surgery and was a licensed physician within the State of Florida, having been issued license number ME 55145. 3. Atall times material to this Complaint Respondent's address of record was 7315 Hudson Avenue, Hudson, Florida 34667-1158. 4. Onor about March 8, 2005, Patient M.D., a thirty-nine year-old male, presented to Gulf Coast Orthopedic Center at the above mentioned address in Hudson, Florida complaining of lower back pain. 5. Onor about March 8, 2005, Patient M.D. was initially evaluated by D.E, an Advanced Registered Nurse Practitioner. 6. On that date D.E. noted that Patient M.D. had a history of pain in the right posterior lumbar spine and upon physical examination, D.E. noted that palpation of the lumbar spine was painful just to the right lumbar spine at the area of the L4-L5 facet joint. 7. On or about March 8, 2005, D.E. diagnosed Patient M.D.’s condition as lumber spine pain with symptoms of radiculopathy and referred Patient M.D. for magnetic resonance imaging (MRI) of the lumbar spine, X-rays of the lumbar spine, and electrophysiologic testing. 8. Onor about March 9, 2005, Patient M.D. returned to G.C.O.C. to discuss the results of the lumbar MRI with Dr. B.M. who noted that M.D. complained of pain in the low right lumbar area upon palpation of the right lumbar spine. 9. Upon physical examination, Dr. B.M. noted that Patient M.D. admitted to pain yet failed to mention any signs of radiculopathy. 10. Dr. B.M. interpreted the lumbar MRI as indicating a bulging disc at the L4-5 and L5-S1 levels of the spine; degenerative disc at the L4-5 and L5-S1 levels of the spine; herniation at right at the L4-5 level of the spine; and foraminal stenosis at right at the L4-5 level of the spine, these findings were not specific as to the source of MD's back pain. 11. Foraminal stenosis is a spinal condition marked by narrowing of one or more of the intervertebral foramen (the openings which pass spinal nerves as they exit the spinal cord). 12. Dr. B.M. interpreted the X-rays as indicating degenerative disc at the L4-5, and L5-S1 levels of the spine; foraminal narrowing at the L4- 5 and L5-Si levels of the spine; unstable spine due to foraminal narrowing at the L4-5, and L5-S1 levels of the spine; osteophytes at the level of the spine; and degenerative joint disease of the facet joints at the L4-5 and L5- S1 levels of the spine; and fusion of the facets left at the L4-5 level of the spine, the facet joints, despite the studies showing only slight degeneration of the right L4-L5 facet joint. 13. Respondent evaluated M.D. for axial back pain lasting for approximately 13 years. 14. Subsequent evaluation at Gulf Coast Orthopedic Center by Dr. D.H. using diagnostic fluoroscopic guided nerve block injections of the facet joints on the right side at L4-5 and L5-S1, provided M.D. with temporary relief from pain; Dr. D.H. noted Patient M.D. obtained good relief from the injections and recommended definitive facet joint surgery. 15. | These diagnostic intra-articular injections into the joint space were performed to assess whether the source of MD’s spinal pain was coming from inflamed osteoarthritic joints. 16. Facet Joint Syndrome is a common cause of pain related to the spine. The facet joints are the articulations or connections between the vertebrae in the spine that enable the bending or twisting movements of the spine. The facet joints can get inflamed secondary to injury or arthritis and cause pain and stiffness. 17. If there is a favorable response to intra-articular injections, then more permanent techniques may be considered. Facet denervation (rhizolysis) is the interruption of spinal nerve roots by coagulation with radiofrequency waves, and is most commonly performed in the lumbar and cervical regions of the spine where a Radio-Frequency Lesion Generator produces an irreversible destructive lesion of the medial branch nerve, blocking the passage of painful messages from the affected facet joint to the rest of the central nervous system. 18. Based on the foregoing, even though Dr. D.H. had not performed diagnostic fluoroscopic guided nerve block injections of the facet joints on the left side at L4-5 and L5-S1, and without medical records justifying the diagnosis nor the course of treatment Dr. D.H. and Respondent diagnosed M.D. with bilateral facet joint syndrome at L4-5 and L5-S1. 19. On March 18, 2005, Respondent took M.D. to surgery at the Gulf Coast Orthopedic Center where he underwent bilateral microsurgical debridement with rhizolysis of the facet joints at L4-5 and L5-Si together with thermocoalgulation of the dorsal rami innervating the facet joints at L4-5 and L5-Si, where the use of heat produced by high-frequency electric 5 current obtained the localized destruction of the posterior (or dorsal) branches (or divisions) of the spinal nerves, also referred to as the dorsal rami. 20. MD’s medical records concerning M.D. do not contain adequate justification for the Respondent’s evaluation, diagnosis, treatment plan nor the surgical procedure performed by the Respondent. Count One 21. Paragraphs 1 through 20 are adopted and realleged as though fully set forth. 22. Medical Malpractice is defined in Section 456.50, Florida Statutes (2004), as the failure to practice medicine in accordance with the level of care, skill, and treatment recognized in general law related to health care licensure. For purposes of Section 458.331(1)(t), Florida Statutes (2004), the Board shall give great weight to the provisions of Section 766.102, Florida Statutes (2004), which provide that the prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. 23. On or about November 18, 2004, Respondent failed to practice with the level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers in one or more of the following ways: a) By failing to perform diagnostic fluoroscopic guided nerve block injections of the facet joints on the left side at , L4-5, and L5-S1 prior to diagnosing bilateral facet joint syndrome at those levels; b) By failing to properly and completely evaluate MD in diagnosing bilateral facet joint syndrome at L4-5 and L5-S1; c) By failing preoperatively to accurately examine and diagnose MD with bilateral facet joint syndrome at L4-5, and L5-S1; d) By failing preoperatively to consider performing diagnostic fluoroscopic guided nerve block injections of the facet joints on the left side at L4-5 and L5-S1 before reaching a diagnosis of bilateral facet joint syndrome; e) By failing to appropriately advise his patient that he reached his diagnosis of bilateral facet joint syndrome at , L4-5, and L5-S1 without having accurately performed all the required testes to validate such a diagnosis; f) By failing to create a preoperative plan to correctly diagnose bilateral facet joint syndrome at L4-5, and L5-S1; g) By performing rhizolysis of the left facet joints at L4-5 and L5-S1 together with thermocoalgulation of the dorsal rami innervating the left facet joints at , L4-5, and L5-S1 without first having performed the necessary diagnostic tests that would have warranted such a procedure; 16.Based on the foregoing, Respondent has violated Section 458.331(1) (t), Florida Statutes (2004). Count Two 24. Paragraphs 1 through 20 are adopted and realleged as though fully set forth. 25. Section 458.331(1)(m), Florida Statutes (2004), subjects a licensee to discipline for 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. 26. On or about March 18, 2005, Respondent failed to keep medical records that justified the course of treatment of the patient, concerning the microsurgical debridement with rhizolysis of the left facet joints at L4-5, and L5-Si together with thermocoaigulation of the dorsal rami innervating the left facet joints at L4-5, and L5-S1. 27. ’Based on the foregoing, Respondent has violated Section 458.331(1)(m), Florida Statutes (2004). Count Three 28. Paragraphs 1 through 20 are adopted and realleged as though fully set forth. 29, Section 458.331(1)(p), Florida Statutes (2004), subjects a licensee to discipline for performing professional services which have not been duly authorized by the patient or client. 30. Informed consent requires that a physician sufficiently educate a patient as to the risks, benefits, and alternatives to a proposed treatment to allow a patient to consider the information prior to signing an “informed consent” form. 31. Prior to performing bilateral microsurgical debridement with rhizolysis of the facet joints at L4-5 and LS5-Si together with thermocoalgulation of the dorsal rami innervating the facet joints at L4-5, and L5-S1 on March 18, 2005, Respondent failed to adequately explain to MD that he had failed to correctly and completely diagnose bilateral facet joint syndrome at L4-5, and L5-S1 because he failed to adequately explain to MD that his diagnosis of bilateral facet joint syndrome at L4-5, and L5- S1 was based on incomplete information in that no one had performed the required diagnostic fluoroscopic guided nerve block injections of the facet joints on the left side at L4-5 and L5-S1 before reaching a diagnosis of bilateral facet joint syndrome. 32. By failing to make this disclosure and explain — the consequences of failing to perform these diagnostic injections on the left side of L4-5, and L5-S1, Respondent failed to obtain M.D.’s knowing and informed consent to the microsurgical debridement with rhizolysis of the left facet joints at L4-5, and L5-S1 together with thermocoalgulation of the dorsal rami innervating the left facet joints at L4-5 and L5-S1. 33. Based on the foregoing, Respondent violated Section 458.331(1)(p), Florida Statutes (2004). Count Four 34. Petitioner realleges and incorporates paragraphs 1 through 20 as if fully set forth herein. 35. Section 456.072(1)(aa), Florida Statutes (2004), provides that performing or attempting to perform health care services on the wrong patient, a wrong-site procedure, a wrong procedure, or an unauthorized procedure or a procedure that is medically unnecessary or otherwise unrelated to the patient’s diagnosis or medical condition is grounds for disciplinary action by the Board of Medicine. 36. Respondent performed a wrong-site procedure, a wrong procedure, or an unauthorized procedure or a procedure that is medically unnecessary or otherwise unrelated to the patient's diagnosis or medical condition by performing bilateral microsurgical debridement with rhizolysis of the facet joints at L4-5 and L5-S1 together with thermocoalgulation of the dorsal rami innervating the facet joints at L4-5 and L5-Si bilateral microsurgical debridement of the facets when Patient M.D.’s diagnosis or medical condition did not warrant such procedure. 37. Based on the foregoing, Respondent has violated Section 456.072(1)(aa), Florida Statutes (2004), by performing a procedure that is medically unnecessary or otherwise unrelated to Patient M.D.'s diagnosis or medical condition. WHEREFORE, the 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, placement of the Respondent on probation, corrective action, refund of fees billed or collected, remedial education and/or any other relief that the Board deems appropriate. SIGNED this _/#/_ day of March, 2011. State Surgeon General Robert A. Milne FILED Assistant General Counsel DEPARTMENT OF HEALTH Florida Bar # 622338 DEPUTY CLERK . DOH Prosecution Services Unit CLERKENORO Sordid 4052 Bald Cypress Way-Bin C-65 pate: MAR f 4 2011 Tallahassee, Florida 32399-3265 (850) 245-4640 Office (850) 245-4681 Facsimile PCP Members: Coal, Row My, SL PCP: iuAch il, S010 NOTICE OF RIGHTS Respondent has the right to request a hearing to be conducted in accordance with Section 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena duces tecum issued on his or her behalf if a hearing is requested. NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Section 456.072(4), Florida Statutes, the Board shall assess costs related to the investigation and prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent in addition to any other discipline imposed.

Docket for Case No: 12-003629PL