DEPARTMENT OF HEALTH,
Petitioner,
V. DOH CASE NO.: 2008-13458
BRUCE M. MOFFAT, M.D.,
Respondent.
ADMINISTRATIVE COMPLAINT
Petitioner, Department of Health, by and through its undersigned counsel, files this Administrative Complaint before the Board of Medicine against Respondent, Bruce M. Moffat, M.D., and in support thereof alleges:
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.
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 91980.
Filed December 27, 2012 10:16 AM Division of Administrative Hearings
At all times material to this Complaint Respondent's address of record was 7315 Hudson Avenue, Hudson, Florida 34667-1158.
On or about March 8, 2005, Patient M.D., a thirty-nine year-old male, presented to Gulf Coast Orthopedic Center (G.C.O.C.) at the above mentioned address in Hudson, Florida complaining of lower back pain.
On or about March 8, 2005, Patient M.D. was initially evaluated by D.E., an Advanced Registered Nurse Practitioner.
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.
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.
On or about March 9, 2005, Patient M.D. returned to G.C.O.C. to discuss the results of the lumbar MRI with Respondent, who noted in his record that M.D. complained of pain in the low right lumbar area upon palpation of the right lumbar spine.
Respondent noted that Patient M.D. admitted to stiffness and pain in the posterior lumbar spine particularly on the right. Yet his notes also failed to mention any signs of radiculopathy.
On March 9, 2005, Respondent interpreted the lumbar MRI as indicating a bulging disc at the L4-5 and L5-51 and degenerative disc at L3- L4, L4-5 and LS-51 together with right herniation at the L4-5 level of the spine; and right foraminal stenosis at L4-5, these findings were not specific as to the source of MD's back pain.
Foraminal stenosis is a spinal condition marked by narrowing of one or more of the interv rtebral foramen (the openings which pass spinal nerves as they exit the spinal cord).
On March 9, 2005, Respondent interpreted the X-rays as indicating degenerative disc at L3-L4, L4-5, and LS-51; foraminal narrowing at the L3-L4, L4-5 and LS-51; unstable spine due to foraminal narrowing at the L3-L4, L4-5, and LS-S1; osteophytes at L3-L4; degenerative joint disease of the facet joints at the L4-5 and LS-51; fusion of the facets left at the L4-5, the foregoing despite these studies only showing slight degeneration of the right L4-LS facet joint.
On March 9, 2005, Respondent then referred Patient M.D. to Dr.
D.H. to undergo diagnostic facet injections at the L4-5 and LS-51 levels on the right side.
Subsequent evaluation at G.C.O.C. by Dr. D.H. on March 9, 2005, using diagnostic fluoroscopic guided nerve block injections ·of the facet joints on the right side at L4-5 and LS-51, 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.
These diagnostic intra-articular injections into the joint space were performed to assess whether the source of M.D.'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.
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.
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 LS-S1, and without medical records justifying neither the diagnosis nor the course of treatment, Dr. G.W. diagnosed M.D. with bilateral facet joint syndrome at L4-5 and LS-S1.
Based on the foregoing Dr. G.W.'s treatment plan was to perform bilateral arthroscopic decompression surgery.
On March 18, 2005, Dr. G.W. took M.D. to surgery at the
G.C.O.C. where he underwent bilateral microsurgical debridement with rhizolysis of the facet joints at L4-5 and LS-S1 together with thermocoalgulation of the dorsal rami innervating the facet joints at L4-5 and LS-S1, where the use of heat produced by high-frequency electric current obtained the localized destruction of the posterior (or dorsal)
branches (or divisions) of the spinal nerves, also referred to as the dorsal rami.
Dr. G.W.'s operative report noted that Patient M.D.'s pain was in the low right lumbar area, that the patient denied any associated radiculopathy and that despite the foregoing Dr. G.W.'s notes further stated that the X-Rays indicated degenerative facets at L4-L5 and LS-51 bilaterally corresponding with patient's clinical symptoms despite any mention of left lumbar pain.
No complications were noted in the operative report and the patient was transferred to the recovery room in a stable condition.
Three days later on or about March 21, 2005, M.D. returned to
G.C.O.C. complaining of continued pain affecting the right LS-51 facet. Dr.
B.M. noted that the pain affecting M.D.'s back and buttock was the same as
-
before the surgery with no relief noted on the right side.
On or about March 21, 2005, Respondent performed re exploration microsurgical debridement of the right facet with rhizolysis and thermocoalgulation at LS-51 with resection of osteophytes despite insufficient time having elapsed for Respondent to have reasonably and accurately assessed the effectiveness of the prior surgery.
On or about March 21, 2005, Respondent performed re exploration microsurgical debridement of the right facet with rhizolysis and thermocoalgulation at LS-S1 with resection of osteophytes despite insufficient time having elapsed for Respondent to have reasonably and accurately assessed the etiology of the patient's pain.
·.. 26. On or about March 21·, 2005, Respondent performed re
exploration microsurgical debridement of the right facet with rhizolysis and thermocoalgulation at L5-S1 with resection of osteophytes despite insufficient time having elapsed for Respondent to have reasonably and accurately assessed whether any further surgical intervention was warranted under the circumstances given that there were no reported complications from the prior surgery.
On or about March .21, 2005, Respondent performed re- exploration microsurgical debridement of the right facet with rhizolysis and thermocoalgulation at the LS-51 with resection of osteophytes and did so without the benefit of any post operative MRI and or X-Ray studies taken after the same surgery three days earlier.
On or about March 21, 2005, Respondent performed re exploration microsurgical debridement of the right facet with rhizolysis at
the L5-S1 facet on the right side and did so without MD having had the benefit of any physical therapy.
On or about March 21, 2005, Respondent performed re- exploration microsurgical debridement of right facet with rhizolysis and thermocoalgulation at the L5-S1 with resection of osteophytes on the right side and did so without MD having had time to come to a pint of maximum medical improvement.
On or about April 12, 2005, Patient M.D. returned to G.C.O.C. complaining of continued pain affecting the right side. Dr. B.M. noted that Patient M.D. had no relief of his pain and had the same pain as before. Respondent's impression was pain to palpation of the right SI joint.
On or about June 13, 2005, Patient M.D. returned to G.C.O.C. for an orthopedic evaluation. D.E. noted that Patient M.D.'s pain now included radiculopathy into the right 51 dermatome and occasionally the left (A dermatome is an area of skin that is mainly supplied by a single spinal nerve.)
On or about June 14, 2005, Respondent performed L4-5 left discogram and L4-5 right laminotomy with foraminotomy with discectomy with dural leak repair and epidural blood patch.
On or about July 1, 2005, Patient M.D. returned to G.C.O.C. complaining of continued pain affecting the right LS level of the spine and the right S1 joint.
Respondent's medical records for M.D. concerning the surgery that he performed on March 18, 2005 and also that of June 14, 2005, do not contain adequate justification for the Respondent's evaluation, diagnosis, treatment plan nor the surgical procedure performed by the Respondent.
Count One
Paragraphs 1 through 34 are adopted and realleged as though fully set forth.
Medical Malpractice is defined in Section 456.50, Florida Statutes (2005), 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 (2005), the Board shall give great weight to the provisions of Section 766.102, Florida Statutes (2005), 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.
On or about March 21, 2005, 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 appropr!ate by reasonably prudent similar health 'care providers when Respondent performed re-exploration microsurgical debrid ment of the right facet with rhizolysis and thermocoalgulation at LS-S1 with resection of osteophytes in one or more of the following ways:
By performing surgery despite insufficient time having elapsed for Respondent to have reasonably and accurately assessed the effectiveness of the prior surgery;
By performing surgery despite insufficient time having elapsed for Respondent to have reaso'nably and accurately assessed the etiology of the patient's pain;
By performing surgery despite insufficient time having elapsed for Respondent to have reasonably and accurately whether any further surgical intervention was warranted under the circumstances given that there were no reported complications from the prior surgery;
By performing surgery without the benefit of any post operative MRI and or X-Ray studies taken after the same surgery three days earlier;
By performing surgery without MD first having had the benefit of physical therapy and the chance to reach a point of maximum medical improvement;
By performing surgery without first having performed the necessary diagnostic tests that would have warranted such a procedure;
Based on the foregoing, Respondent has violated Section
458.331(1) (t), Florida Statutes (2005).
Paragraphs 1 through 34 are adopted and realleged as though fully set forth.
Medical Malpractice is defined in Section 456.50, Florida Statutes (2005), 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 (2005), the Board shall give great weight to the provisions of Section 766.102, Florida Statutes (2005), 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.
On or about June 14, 2005, Respondent failed to practice with the level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recogniz d as acceptable and appropriate by reasonably prudent similar health care providers when Respondent performed a decompression of the nerve root, partial facetectomy, foraminotomy, excision of herniated disk, perineurectomy, discogram, and at L4-LS in one or more of the following ways:
By performing surgery that was not an appropriate treatment for the back pain complained of;
By performing surgery that was of questionable benefit for the complaints that this patient appeared to have prior to the procedure;
By failing to consider observation and nonsurgical management of MD's pain;
By failing to create an appropriate treatment plan.
Paragraphs 1 through 34 are adopted and realleged as though
fully set forth.
Section 458.331(1)(m), Florida Statutes (2005), 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.
Respondent failed to keep medical records that justified the patient's course of treatment on March 18, 2005 concerning the, 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 LS-51.
Based on the foregoing, Respondent has violated Section 458.331(1)(m), Florida Statutes (2005).
Paragraphs 1 through 34 are adopted and realleged as though fully set forth.
Section 458.331(1)(m), Florida Statutes (2005), 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.
Respondent failed to keep medical records that justified the patient's course of treatment on March 18, 2005 concerning the decompression of the nerve root, partial facetectomy, foraminotomy, excision of herniated disk, perineurectomy and discogram, at L4-L5.
· 49. Based on the foregoing, Respondent has violated Section 458.331(1)(m), Florida Statutes (2005).
Paragraphs 1 through 34 are adopted and realleged as though fully set forth.
Section 458.331(1)(p), Florida Statutes (2005), subjects a licensee to discipline for performing professional services which have not been duly authorized by the patient or client.
Informed consent requires that a p_hysician 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.
Prior to performing re-exploration microsurgical debridement of the ' right facet with rhizolysis and thermocoalgulation at L5-S1 with resection of osteophytes Respondent failed to adequately explain to M.D. one or more of the following material facts:
insufficient time had elapsed for Respondent to have reasonably and accurately assessed the effectiveness of the prior surgery;
insufficient time had elapsed for Respondent to have reasonably and accurately assessed the etiology of the patient's pain;
'c) insufficient time had elapsed for Respondent to have reasonably and accurately determined whether any further surgical intervention was
·warranted under the circumstances given that there were no reported complications from the prior surgery;
the planned surgery would be without the benefit of any post operative MRI and or X-Ray studies taken following the same surgery three days earlier;
the planned surgery would be without MD first having had the benefit of physical therapy and the chance to reach a point of maximum medical improvement;
the planned surgery would be without first having performed the necessary diagnostic tests that would have warranted such a procedure.
By failing to make these disclosures and explain the consequences of performing the planned procedure Respondent failed to
obta_in M.D.'s knowing and informed consent to the above described
surgical procedure.
Based on the foregoin.g, ·Respondent violated Section 458.331(1)(p), Florida Statutes (2005).
I •
'
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 J.t/1;/f day of March, 2011.
State Surgeon General
DEPUTY CLERK
CLERK.
DAlE: AR 1 4 2011
Assistant General Counsel Florida Bar # 622338
DOH Prosecution Services Unit 4052 Bald Cypress Way-Bin C-65 Tallahassee, Florida 32399-3265
(850) 245-4640 Office
(850) 245-4681 Facsimile
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PCP Members: Qft,; -- CP
PCP: ,\_OA-0-J l\ ) .9-0 \I
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.
| Issue Date | Proceedings |
|---|---|
| Jan. 18, 2013 | Order Closing File and Relinquishing Jurisdiction. CASE CLOSED. |
| Jan. 17, 2013 | Motion to Relinquish Jurisdiction filed. |
| Jan. 11, 2013 | Order of Pre-hearing Instructions. |
| Jan. 11, 2013 | Notice of Hearing (hearing set for April 9, 2013; 9:00 a.m.; Tallahassee, FL). |
| Jan. 10, 2013 | Joint Response to Initial Order filed. |
| Jan. 03, 2013 | Order Granting Extension of Time. |
| Jan. 03, 2013 | Joint Request for Extension of Time to Respond to Initial Order filed. |
| Dec. 27, 2012 | Initial Order. |
| Dec. 27, 2012 | Notice of Appearance (of R. Milne) filed. |
| Dec. 27, 2012 | Agency referral filed. |
| Dec. 27, 2012 | Motion to Dismiss, or, in the Alternative, Petition for Hearing Involving Disputed Issues of Fact filed. |
| Dec. 27, 2012 | Administrative Complaint filed. |
