STATE OF FLORIDA DEPARTMENT OF HEALTH DEPARTMENT OF HEALTH, Petitioner, Vv. CASE NO.: 2010-15552 RAFAEL FELIX AVILES, M.D., Respondent. ee | ADMINISTRATIVE COMPLAINT Petitioner Department of Health files this Administrative Complaint before the Board of Medicine against Respondent Rafael Felix Aviles, M.D., and in support thereof alleges: 1. Petitioner Is the state agency 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 medical doctor within the state of Florida, having been issued license number ME 67736. 3. Respondent's address of record is 6635 W Commercial Boulevard, Suite 110, Tamarac, Florida 33319. DOH V. RAFAEL FELIX AVILES, M.D., DOH CASE NO, 2010-15552 4. At all times material to this Complaint, Respondent treated patients at South Dade Pain Clinic (‘South Dade”), 9847 SW 40" Street, Miami, FL 33165, or at Palmetto Pain Clinic (‘Palmetto’) 8353 S.W. 124 Street, Suite 204, Miami, Florida 33156. 5. From about October 8, 2009, to about February 7, 2011, Respondent treated Patient G.Q., a 53 year-old male, for complaints of back pain. 6. At no point during that treatment period did Respondent obtain and/or create or maintain documentation regarding a complete and accurate medical history of Patient G.Q. 7. At no point during that treatment period did Respondent obtain and/or create or maintain documentation regarding a thorough initial physical examination of Patient G.Q. 8. At no point during that treatment period did Respondent obtain and/or create or maintain documentation regarding alternative treatment modalities for Patient G.Q. 9. At no point during that treatment period did Respondent obtain and/or create or maintain documentation regarding consulting specialists in the treatment of Patient G.Q. DOH V. RAFAEL FELIX AVILES, M.D., DOH CASE NO. 2010-15552 10. On or about February 7, 2011, Respondent inappropriately prescribed, or prescribed inappropriate or excessive quantities of Oxycodone,? Ambien,? and/or Xanax? to Patient G.Q. 11. Atno point during his treatment of Patient G.Q. did Respondent conduct or document follow-up physical examinations of Patient G.Q. 12. At no point during his treatment of Patient G.Q. did Respondent monitor or document Patient G.Q.’s medication use with urine drugs screens or with any other methods. 13. At no point during his treatment of Patient G.Q. did Respondent create or maintain accurate, complete, and legible medical records justifying the course of treatment of Patient G.Q. 1 Oxycodone is an opioid prescribed to treat pain. Oxycontin is the brand name of a controlled release formulation of oxycodone. According to Section 893.03(2), Florida Statutes (2010), oxycodone Is a Schedule II controlled substance that has a high potential for abuse and a currently accepted but severely restricted medical use in treatment in the United States, Abuse of oxycodone may lead to severe psychological or physical dependence. 2 Ambien is the brand name for zolpidem tartrate, an imidazopyridine prescribed to treat insomnia. According to Section 893.03(4), Fiorida Statutes (2010), zolpidem tartrate 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. Abuse of zolpidem tartrate may lead to limited physical or psychologicai dependence relative to the substances in Schedule IN. 3 Xanax Is the brand name for alprazolam, a benzodiazepine prescribed to treat anxlety. According to Section 893.03(4), Florida Statutes (2010), 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. Abuse of alprazolam may lead to limited physical or psychological dependence relative to the substances in Schedule III. DOH V. RAFAEL FELIX AVILES, M.D., DOH CASE NO. 2010-15552 14. During the course of treatment of Patient G.Q., Respondent failed to keep copies of some or all of the prescriptions written for Patient G.Q. 15. The prevailing professional standard of care required Respondent to treat Patient G.Q. in the following manner: a. Obtain a complete and accurate medical history; b. Perform a complete and thorough initial physical examination; c. Implement alternative treatment modalities; d. Consult with appropriate specialists; e. Prescribe controlled substances appropriately and in appropriate quantities; f. Conduct thorough follow-up physical examinations; g. Justify the course of treatment of the patient; h. Monitor medication use through urine drug screens or other methods. Count I Violation of Section 458.331(1)(t)(1) 16. Petitioner realleges and incorporates paragraphs 1 through 15 as if fully set forth herein. 17. Section 458.331(1)(t), Florida Statutes (2010), subjects a licensee to discipline for committing medical malpractice as defined in Section 456.50, Florida Statutes. Section 456(1)(g), Florida Statutes (2010), 4 DOH V. RAFAEL FELIX AVILES, M,D., DOH CASE NO. 2010-15552 states medical malpractice means the failure to practice medicine in accordance with the level of care, skill, and treatment recognized in general law related to health care licensure. 18. Section 766.102, Florida Statutes (2010), provides that the prevailing standard of care for a given healthcare 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. 19. Respondent fell below the standard of care in his treatment of Patient G.Q. on or about February 7, 2011, in one or more of the following ways: a. by failing to obtain a complete and accurate medical history of Patient G.Q.; b. by failing to conduct a thorough initial physical examination of Patient G.Q.; c. by failing to implement alternative treatment modalities for Patient G.Q.; d. by failing to consult with appropriate specialists in the treatment of Patient G.Q.; e. by inappropriately prescribing, or prescribing inappropriate or excessive quantities of, controlled substances to Patient G.Q.; DOH V, RAFAEL FELIX AVILES, M.D., DOH CASE NO. 2010-15552 f. by failing to conduct follow-up physical examinations of Patient G.Q.,; g. by failing to justify the course of treatment of Patient G.Q.; h. by failing to monitor Patient M.D.’s medication use with urine drug screens or with any other methods. 20. Based on the foregoing, Respondent violated Section 458.331(1)(t), Florida Statutes (2010), by committing medical malpractice. Count II Violation of Section 458.331(1)(q) 21. Petitioner realleges and incorporates paragraphs 1 through 15 as if fully set forth herein. 22. Section 458.331(1)(q), Florida Statutes (2010), subjects a licensee to discipline for prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician’s professional practice. For the purposes of the paragraph, it shall be legally presumed that prescribing, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances, inappropriately or in excessive or inappropriate quantities is not in the best interest of the patient and is not in the course of the physicians professional practice, without regard to his or her intent. 23. Respondent prescribed a legend drug other than in the course of his professional practice: a. by prescribing inappropriate or excessive quantities and/or combinations of Oxycodone, Ambien, and/or Xanax. DOH V. RAFAEL FELIX AVILES, M.D., DOH CASE NO. 2010-15552 24. Based on the foregoing, Respondent violated Section 458.331(1)(q), Florida Statutes (2010). Count ITI Violation of Section 458.331(1)(m) and/or Section 458.331(1)(nn) 25. Petitioner realleges and incorporates paragraphs 1 through 15 as if fully set forth herein. . 26. Section 458.331(1)(m), Florida Statutes (2010), 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. 27. Section 458.331(1)(nn), Florida Statues (2010), provides that violating any provision of Chapter 458 or 456, or any rules adopted pursuant thereto constitutes grounds for disciplinary action by the Board of Medicine. 28. Chapter 64B8-9.003(d)(3), Florida Administrative Code (2006), provides that medical records shall contain sufficient information to identify DOH V, RAFAEL FELIX AVILES, M.D., DOH CASE NO. 2010-15552 the patient, support the diagnosis, justify the treatment and document the course and results of treatment accurately, by including, at a minimum, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; reports of consultations and hospitalizations; and copies of records or reports or other documentation obtained from other health care practitioners at the request of the physician and relied upon by the physician in determining the appropriate treatment of the patient. 29. Respondent failed to create and/or maintain adequate, legible medical records that justify the course of treatment provided to Patient G.Q. and/or satisfy the requirements of Chapter 64B8-9.003(d)(3), Florida Administrative Code (2006), for the treatment provided in one or more of the following ways: a. by failing to create or maintain medical records documenting Patient G.Q.’s complete and accurate medical history; b. by failing to create or maintain medical records documenting a thorough initial physical examination of Patient G.Q.; c. by failing to create or maintain medical records documenting the implementation of alternative treatment modalities in the care of Patient G.Q.; DOH V. RAFAEL FELIX AVILES, M.D., DOH CASE NO. 2010-15552 30. . by failing to create or maintain medical records documenting consultations with any specialists In the treatment of Patient G.Q,; . by failing create or maintain medical records documenting foilow- up physical examinations of Patient G.Q.; . by failing to create or maintain medical medicals documenting justification for the course of treatment of Patient G.Q.; . by failing to create or maintain medical records documenting the monitoring of Patient G.Q.'’s medication use with urine drug screens or with any other methods; . by failing to create or maintain copies of some or all of the prescriptions written for Patient G.Q. Based on the foregoing, Respondent violated Section 458.331(1)(m), Florida Statutes (2010), and/or Section 458.331(1)(nn), Florida Statutes (2010), and/or Chapter 64B8-9.003(d)(3), Florida Administrative Code (2006). 31. 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, DOH V. RAFAEL FELIX AVILES, M.D., DOH CASE NO, 2010-15552 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__Gt>_ day of _febou 2017. Celeste Philip, MD, MPH State Surgeon General FILED ary Bel DEPARTMENT Oot HEALTH Assistant General Counsel Florida Bar No. 0105735 ouent: Srnolg? Contes) DOH-Prosecution Services Unit . 5 | 4052 Bald Cypress Way-Bin C-65 pare lg 22! F (850) 245-4444, Ext. 4666 (850) 245-4684 fax E-Mail: zachary.beli@flhealth.gov ZB PCP: February 6, 2017. PCP Members: Bernardo Fernandez, M.D.; Hector Vila, M.D. 10 DOH V. RAFAEL FELIX AVILES, M.D., DOH CASE NO. 2010-15552 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. A request or petition for an administrative hearing must be in writing and must be received by the Department within 21 days from the day Respondent received the Administrative Complaint, pursuant to Rule 28-106.111(2), Florida Administrative Code. If Respondent fails to request a hearing within 21 days of receipt of this Administrative Complaint, Respondent waives the right to request a hearing on the facts alleged in this Administrative Complaint pursuant to Rule 28-106.111(4), Florida Administrative Code. Any request for an administrative proceeding to challenge or contest the material facts or charges contained in the Administrative Complaint must conform to Rule 28-106.2015(5), Florida Administrative Code. Please be advised that mediation under Section 120.573, Florida Statutes, is not available for administrative disputes involving this agency action. 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 any other discipline imposed. 11 DOH V. RAFAEL FELIX AVILES, M.D., DOH CASE NO. 2010-15552

Docket for Case No: 18-002070PL