STATE OF FLORIDA DEPARTMENT OF HEALTH DEPARTMENT OF HEALTH, Petitioner, Vv. Case No. 2009-20820 KENNETH A. BERDICK, M.D., Respondent. ADMINISTRATIV: PLAINT Petitioner, Department of Health, through its undersigned counsel files this Administrative Complaint before the Board of Medicine against the Respondent, Kenneth A. Berdick, M.D., alleges: 1. Petitioner is the state agency charged with regulating the practice of medicine odrSuaHe 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 in the state of Florida, having been issued license number ME 17772. DOH v. Kenneth Berdick, MD Case No. 2009-20820 3. | Respondent's address of record is 2665 Cleveland Avenue, Suite 108, Ft. Myers, Florida 33901. 4. Respondent is Board Certified in Internal Medicine. Facts Related to Patient GR 5. Between December of 2007 and February of 2010, Patient GR, a then 53 year-old female, presented to Respondent as her primary care physician. GR presented to Respondent with a history of chronic obstructive pulmonary disease (COPD), hypertension, hyperlipidemia and chronic anxiety. 6. Respondent did not perform a complete physical examination or obtain a complete medical history on Patient GR. 7. Throughout the time that Patient GR presented to Respondent, Respondent prescribed 90 tablets of Xanax 1 mg to Patient GR monthly. 8. Xanax is the brand name for alprazolam. Alprazolam is prescribed to treat anxiety. According to Section 893.03(4), Florida Statutes, alprazolam is a Schedule IV controlled substance that has a low potential for abuse relative to the substances in Schedule III and has a currently accepted medical use in treatment in the United States, and DOH v. Kenneth Berdick, MD Case No. 2009-20820 abuse of the substance may lead to limited physical or psychological dependence relative to the substances in Schedule III. 9. At no time did Respondent refer Patient GR to a psychiatrist for consultation regarding the diagnosis and management of GR’s chronic anxiety. 10. Although Respondent documented a history of COPD, Respondent did not document a treatment plan or a consultation or referral for treatment. 11. Respondent's medical records are illegible and do not contain documentation justifying his course of treatment of Patient GR. Respondent's medical records do not contain sufficient information to support any of the diagnoses referred to in the record; do not document the course and results of the treatment; and the records do not contain an adequate patient history, examination results, and reports of eoneilistions! 12. The prevailing standard of care for an internal medicine physidan treating a patient who presents over several years with chronic anxiety is to refer the patient to a psychiatrist for the diagnosis and treatment of chronic anxiety. DOH v. Kenneth Berdick, MD Case No. 2009-20820 13. The prevailing standard of care required an internal medicine physician providing primary care to a patient perform a complete physical and obtain a complete medical history of a patient. Count One 14. Petitioner realleges and incorporates by reference the allegations in paragraphs 1 through 13 as if fully set forth herein. 15. Section 458.331(1)(t)1, Florida Statutes (2007-2009), subjects a physician to discipline for committing medical malpractice as defined in Section 456.50, Florida Statutes (2007-2009). “Medical malpractice” is . defined by Section 456.50(1)(g), Florida Statutes (2007-2009), 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.” Section 456.50(1)(e), Florida Statutes (2007-2009), provides that the “level of care, skill, and treatment recognized in general ia related to health care licensure" means the standard of care that is specified in Section 766.102(1), Florida Statutes (2007-2009), which states as follows: ‘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 4 DOH v. Kenneth Berdick, MD Case No. 2009-20820 appropriate by reasonably prudent similar health care providers. 16. Section 458.331(1)(t)1, Florida Statutes (2007-2009), directs the Board of Medicine to give “great weight” to this provision of Section 766.102, Florida Statutes (2007-2009). 17. Between December of 2007 and February of 2010, Respondent failed to meet the prevailing standard of care by failing to perform one or more of the following in the treatment of Patient GR: a. By failing to perform a complete medical history and physical examination; and b. By failing to refer GR for additional evaluations and consultations for treatment of her chronic anxiety. 18. Based on the foregoing, Respondent failed to meet the prevailing standard of care and, therefore, violated Section 458:331(1)(H)L, Florida Statutes (2007-2009). DOH v. Kenneth Berdick, MD Case No. 2009-20820 Count Two 19. Petitioner realleges and incorporates by reference the allegation in paragraphs one 1 through 13 and paragraph 17 as if fully set forth herein. 20. Section 458.331(1)(m), Florida Statutes (2007-2009), subjects a licensee to discipline for failing to keep legible, as defined by department — rule in consultation with the board, medical records 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. 21. Respondent failed to keep legible medical records that justified Respondent's course of treatment of Patient GR, specifically, by failing to document one or more of the following: a. By failing to keep legible medical records that justify the course of treatment for GR; b. By failing to document the performance of a complete medical history and physical examination. DOH v. Kenneth Berdick, MD Case No. 2009-20820 c. By failing to document referrals or consultations regarding the etiology and treatment of Patient GR’s chronic anxiety and COPD. 22. Based on the foregoing, Respondent violated Section 458.331(1)(m), Florida Statutes (2007-2009). Facts Related to Patient MD 23. Beginning on or before 2004 and continuing until July 1, 2009, Patient MD presented to Respondent as her primary care physician. Patient MD presented to Respondent with a history of depression, panic attacks and chronic anxiety. 24. During the period of time that Respondent treated Patient MD, Respondent did not perform or document either a complete physical examination or obtain or document a complete medical history. 25. Respondent regularly prescribed Xanax to Patient MD for the treatment of anxlety and panic attacks. Respondent did not refer Patient MD to a psychiatrist for consultation regarding the diagnosis and treatment of her depression, anxiety and panic disorders. 26. Respondent's medical records for Patient MD are illegible. | DOH v. Kenneth Berdick, MD Case No. 2009-20820 27. Respondent's medical records do not contain sufficient information to support any of the diagnoses referred to in the record; do not justify the treatment; do not document the course and results of the treatment; and the records do not contain an adequate patient history, examination results, reports of consultations and hospitalizations. 28. The prevailing standard of care for an Internal medicine physician treating a patient who presented over several years with depression, chronic anxiety, and panic attacks was to refer the patient for consultation regarding the etiology and treatment of depression, chronic anxiety, and panic attacks. 29. The prevailing standard of care required that an internal medicine physician treating a patient as a primary care physiclan perform a complete physical and obtain a medical history. Count Three 30. Petitioner realleges and incorporates by reference the allegations in paragraphs 1 through 5 and 23 through 29 as if fully set forth herein. DOH v, Kenneth Berdick, MD Case No. 2009-20820 31. Section 458.331(1)(t)1, Florida Statutes (2007-2009), subjects a physician to discipline for committing medical malpractice as defined in Section 456.50, Florida Statutes (2007-2009). “Medical malpractice” is defined by Section 456.50(1)(g), Florida Statutes (2007-2009), 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.” Section 456.50(1)(e), Florida Statutes (2007-2009), provides that the “level of care, skill, and treatment recognized in general law related to health care licensure" means the standard of care that is specified in Section 766.102(1), Florida Statutes (2007-2009), which states as follows: 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. -- 7 32. Section 458.331(1)(t)1, Florida Statutes (2007-2008), directs the Board of Medicine to give “great weight” to this provision of Section 766.102, Florida Statutes (2007-2008). DOH v. Kenneth Berdick, MD Case No, 2009-20820 33. Between October of 2007 and February of 2009, Respondent failed to meet the prevailing standard of care by failing to perform on or more of the following in the treatment of Patient MD: a. __ By failing to perform a complete physical examination and obtain and document medical history; and b. By failing to refer MD for additional evaluations and consultations for diagnosis and treatment for depression, chronic anxiety and panic attacks. 34. Based on the foregoing, Respondent failed to meet the prevailing standard of care and, therefore, violated Section 458.331(1)(0)1, Florida Statutes (2007-2009). Count Four 35. Petitioner realleges and incorporates by reference the allegation in paragraphs one 1 through 5 and paragraphs 23 through 29 and paragraph 33 as if fully set forth herein. 36. Section 458.331(1)(m), Florida Statutes (2007-2009), subjects a licensee to discipline for failing to keep legible, as defined by department rule in consultation with the board, medical records that justify the course DOH v. Kenneth Berdick, MD Case No. 2009-20820 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. . 37. Between November of 2007 and February 2009, Respondent failed to keep legible medical records that justified Respondent's course of treatment of Patient MD, specifically, by failing to document one or more of the following: a. By failing to keep legible medical records that justify the course of treatment; , b. By failing to document the performance of a complete medical history and physical examination; and c. By failing to document the referral of Patient MD for additional evaluations and consultations for treatment of her depression, chronic anxiety and panic attacks. / 38, Based on the foregoing, Respondent violated Section 458.331(1)(m), Florida Statutes (2007-2008). Ly 11 DOH v. Kenneth Berdick, MD Case No, 2009-20820 Facts Related to Patient CM 39. Beginning in or before 2006 and continuing until August of 2009, Patient CM presented to Respondent as her primary care physician. CM presented to Respondent with complaints of low back pain. 40. In December of 2006, Respondent dismissed Patient CM as his patient due to drug seeking behavior. 41. Subsequently, Respondent assumed the role of Patient CM’s physician again and continued to prescribe controlled substances to her. 42. Throughout the time Patient CM presented to Respondent, Respondent prescribed Xanax and Vicodin to her. 43. Vicodin (a brand name for hydrocodone combined with acetaminophen) is commonly prescribed to treat pain. According to Section 893.03(2), mlorida Statutes, hydrocodone with eae isa Schedule III controlled substance that has a high potential for abuse and has a currently accepted but restricted medical use in treatment in the United States, and abuse of hydrocodone may lead to severe psychological or physical dependence. DOH v. Kenneth Berdick, MD Case No. 2009-20820 44. Respondent’s medical records contain no documentation of a discussion or agreement between Respondent and CM concerning her previous drug-séeking behavior. 45. Respondent did not perform or document a complete physical examination and did not obtain or document a complete medical history. 46. Respondent did not require Patient CM to submit to urine drug screens after he suspected CM was engaged in drug-seeking behavior. 47. Respondent regularly prescribed Xanax and Vicodin to Patient CM for back pain. Respondent did not refer Patient CM for diagnostic testing to determine the etiology of her back pain. 48. Respondent’s medical records for Patient CM are illegible. 49.. Respondent did not create a written treatment plan for Patient CM and did not periodically review the course of treatment or evaluate the success of the treatment. 50. Respondent’s medical records for Patient CM do not contain sufficient information to support any of the diagnoses referred to in the record; do not justify the treatment; do not document the course and results of the treatment; and the records do not contain an adequate DOH v. Kenneth Berdick, MD Case No, 2009-20820 patient history, examination results, reports of consultations and hospitalizations. 51. At the time Respondent treated CM, the prevailing standard of care for an internal medicine physician treating a patient who presented over several years with back pain was to refer the patient for consultation regarding the etiology and treatment of the pain. 52. The prevailing standard of care required the documentation of discussions with the patient regarding the risks and benefits of the use of controlled substances in treating a patient who engages in drug-seeking behavior. 53. The prevailing standard of care required that if a patient is at high risk for medication abuse or substance abuse then a written agreement should exist between physician and patient outlining patlent responsibilities. | 54. The prevailing standard of care required that a Physician providing pain management through the use of controlled substances create a written treatment plan, use it to determine treatment success, and review it periodically. 14 DOH v. Kenneth Berdick, MD Case Na, 2009-20820 Count Five 55. Petitioner realleges and incorporates by reference the allegations in paragraphs 1 through 5 and paragraphs 39 through 54 as if fully set forth herein. 56. Section 458.331(1)(t)1, Florida Statutes (2007-2009), subjects a physician to discipline for committing medical malpractice as defined in Section 456.50, Florida Statutes (2007-2009). “Medical malpractice” is defined by Section 456.50(1)(g), Florida Statutes (2007-2009), 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.” Section 456.50(1)(e), Florida Statutes (2007-2009), provides that.the “level of care, skill, and treatment recognized in general law related to health care licensure" means the standard of care that is specified in Section 766.102(1), Florida Statutes (2007-2009), which states as follows: 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. DOH v. Kenneth Berdick, MD Case No, 2009-20820 57. Section 458.331(1)(t)1, Florida Statutes (2007-2009), directs the Board of Medicine to give “great weight” to this provision of Section 766.102, Florida Statutes (2007-2009). 58. In or about October of 2007 until August of 2009, Respondent failed to meet the prevailing standard of care by failing to perform one or more of the following in the treatment of Patient CM: a. By failing to perform a complete medical history and physical examination; b. By failing to refer CM for additional evaluations and consultations for diagnosis and treatment for chronic back pain; c. By failing tq create a written treatment plan and an objective method for determining the effectiveness of the treatment, and d. __By failing to monitor CM for possible substance abuse or diversion given her ao behavior. 59. Based on the foregoing, Respondent failed to meet the prevailing standard of care in treating Patient CM and, therefore, violated Section 458.331(1)(t)1, Florida Statutes (2007-2009). 16 DOH v. Kenneth Berdick, MD Case No. 2009-20820 Count Six 60. Petitioner realleges and incorporates by reference the allegation in paragraphs one 1 through 5 and paragraphs 39 through 55 as if fully set forth herein. 61. Section 458.331(1)(m), Florida Statutes (2007-2009), subjects a licensee to discipline for failing to keep legible, as defined by department rule in consultation with the board, medical records 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. 62. Between October of 2007 and August of 2009, Respondent failed to keep legible medical records that justified Respondent's course of treatment of Patient CM, specifically, by falling to document one or more of the following: . a. _ By failing to keep legible medical records that justify the course of treatment; b. By failing to document the performance of a complete medical history and physical examination and treatment plan; 17 DOH v. Kenneth Berdick, MD Case No. 2009-20820 c. By failing to document the referral of Patient CM for additional evaluations and consultations to determine the etiology of the patient's chronic back pain; and d. By failing to document the monitoring of CM to ensure that she was not abusing or diverting her medication. 63. Based on the foregoing, Respondent violated Section 458.331(1)(m), Florida Statutes (2007-2009). 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, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, corrective action, refund of fees billed or 18 DOH v. Kenneth Berdick, MD Case No. 2009-20820 collected, remedial education and/or any other relief that the Board deems appropriate. SIGNED this_2A day of /maluer , 2013. oave_ (f= 2-5 —/3 CLG PCP Date: November 22, 2013 John H. Armstrong, MD, FACS State Surgeon General and Secretary of Health x Carol L. Gregg Assistant General Counsel DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL 32399-3265 Florida Bar # 181515 (850) 245-4444 x 8123 PHONE (850) 245-4684 FAX carol_gregg@doh.state.fl.us PCP Members: Drs. El-Bahri and Bearison - and Ms. Tootle DOH v. Kenneth Berdick, MD Case No, 2009-20820 — _—— = aes /-

Docket for Case No: 16-003952PL