The Issue The issue for determination is whether Petitioner must reimburse Respondent for payments totaling $193,232.50 that Petitioner admittedly received between January 1, 1999, and June 15, 2000, under the Medicaid Program for the provision of universal precaution kits to AIDS patients, where the supplies in question allegedly were not specifically listed in the patients’ respective plans of care.
Findings Of Fact The evidence presented at final hearing established the facts that follow. The Parties and the Stake 1. The Agency is responsible for administering the Florida Medicaid Program. As one of its duties, the Agency must recover "overpayments . . . as appropriate," the term "overpayment" being statutorily defined to mean "any amount that is not authorized to be paid by the Medicaid program whether paid as a result of inaccurate or improper cost reporting, improper claiming, unacceptable practices, fraud, abuse, or mistake." See Section 409.913 (1) (d), Florida Statutes. 2. This case arises out of the Agency's attempt to recover alleged overpayments from Full Health, a Florida-licensed home health agency. As an enrolled Medicaid provider, Full Health is authorized, under a provider agreement with the Agency, to provide services and supplies to Medicaid recipients. 3. It is undisputed that, at all times material to this proceeding, Full Health was authorized to provide home and community-based ("HCB") services and supplies to Medicaid recipients eligible for assistance under a program—more about which below—called the Project AIDS Care Waiver ("PAC Waiver"). 4. The "audit period" that is the subject of the Agency's recoupment effort is January 1, 1999 to June 15, 2000. It is undisputed that, during this audit period, the Medicaid Program reimbursed Full Health a total of $193,232.50 for "universal precaution kits" (packages containing disposable protective gear such as latex gloves, surgical masks and gowns, and eye shields) that Full Health had delivered to 57 clients in the PAC Waiver program. The Agency contends that the entire $193,232.50 is subject to recoupment because, under the PAC Waiver program, case manager approval is a necessary precondition to Medicaid reimbursement, and none had been given for the universal precaution kits at issue. PAC Waiver Program Basics 5. Broadly speaking, the State of Florida has obtained waivers from certain federal Medicaid requirements to allow for the provision of specified HCB services to patients at risk of institutionalization. See Rule 59G-8.200(1), Florida Administrative Code. The PAC Waiver program is one of six authorized HCB services waiver programs. Rule 59G-8.200(9), Florida Administrative Code.* 6. The PAC Waiver program "provides a range of HCB services designed to meet the needs of people living with AIDS related conditions." Rule 59G-8.200(14) (a), Florida Administrative Code. To be eligible for benefits under the PAC Waiver program, a recipient must satisfy a number of criteria, including having been diagnosed with AIDS. Rule 59G- 8.200(14) (c)2, Florida Administrative Code. 7. The Florida Medicaid office has prepared and furnishes to authorized Medicaid providers a manual entitled Project AIDS Care (PAC) Waiver Services Coverage and Limitations Handbook (the "Handbook"). In their joint Prehearing Stipulation, the parties agreed that the April 1999 version of the Handbook was in effect during the audit period, and this stipulation is accepted as fact. 8. The Handbook does not appear to have been incorporated by reference into the Florida Administrative Code as an Agency rule.?. Full Health, however, has not challenged the Agency's reliance on the Handbook as an authoritative source of the policies and procedures relating to reimbursement for services provided under the PAC Waiver program. To the contrary, not only did Full Health stipulate that the April 1999 Handbook was win effect" during the relevant period, but also it introduced the entire April 1999 Handbook into evidence as Petitioner's Exhibit 1. 9. In addition, Full Health's President, Ms. Gonzalez, credibly described Petitioner's Exhibit 1 as the place "where you find all of the rules and regulations that you have to follow when it comes to this kind of patients [sic] [meaning PAC Waiver recipients}]." Transcript of Final Hearing at 461. The trier believes Ms. Gonzalez‘s testimony on this point and adopts it as a fact. For purposes of this case at least, the Handbook sets forth pertinent, applicable Medicaid policies and claims processing requirements. See Rule 59G-8.200(14) (£), Florida administrative Code ("Medicaid will make payment for services provided to Project AIDS Care recipients in accordance with applicable Medicaid claims processing requirements.") .° 10. As the Handbook explains, "[e]very PAC waiver recipient must have a case manager who is employed by a Medicaid-enrolled PAC waiver case management agency." Handbook at 2-1.4 See also Rule 59G-8.200(14) (c)6., Florida Administrative Code (patient must have a case manager to be eligible under this waiver). 11. Among the case manager's responsibilities is the development of a "plan of care" for each PAC Waiver patient. "A plan of care is a written document that describes the service needs of a recipient, specifies the services to be provided, the provider of services, how frequently the services are to be provided, the duration of the services, and their estimated cost." Handbook at 2-7. The case manager is required to "review plans of care on an ongoing basis, but no less frequently than every six months." Rule 59G-8.200(14) (e)1.d., Florida Administrative Code. 12. Significantly, the "plan of care and the services specified in the plan of care are considered authorized when [the plan of care] is signed by the case manager." Handbook at 2-9. The case managers, however, do not have carte blanche to approve services. Rather, their discretionary approval authority is capped at $2,000 per month per patient, and "Medicaid must approve plans of care exceeding a cost of $2,000 per month before services are considered authorized." Handbook at 2-9. Indeed, "[i]f the total estimated cost of the Project BIDS Care services exceeds [this monthly limit], prior approval must be obtained from Medicaid before the service authorizations can be made." Rule 59G-8.200(14) (e)1.d., Florida Administrative Code. 13. Case manager approval, as manifested in a signed plan of care for the individual patient, is essential. Without it, HCB services rendered to a PAC Waiver patient are not Medicaid compensable, regardless of medical necessity, efficacy, the provider's competence or good intentions, or any other compelling justification. The Handbook is blunt and unambiguous about this: "Services not specified in the plan of care are not considered approved or authorized. Medicaid reimbursement for services furnished, but not specified in the plan of care for that specific time period are subject to recoupment." Handbook 2-9 (emphasis added); see also Rule 59G-8.200(6) (g), Florida Administrative Code. 14. The Handbook further informs providers: PAC waiver services are based on individual recipient needs and must be in the recipient’s plan of care. All recipients enrolled in the PAC waiver must receive case management and at least one other waiver service. Medicaid will reimburse only waiver services that are specifically identified in the approved plan of care by service type, frequency and duration. Handbook at 2-12 (emphasis added). 15. The case manager performs another crucial function in the delivery of services to PAC Waiver recipients: he or she instructs participating providers (such as Full Health) to commence furnishing an approved service or services to a particular patient. The case manager's instructions to the provider must be in writing on an instrument known as "service authorization." The applicable administrative rule directs: The case manager shall develop written service authorizations for all services except case management. These authorizations will provide sufficient information to allow the provider to bill for services with a minimum of assistance. The authorizations will parallel the plans of care in terms of specificity of the service, the duration of the service, frequency of service, and the total authorized amount to be spent. If a case manager authorizes a service orally, he will send a written authorization to the provider 10 within five working days as confirmation of the oral authorization. Rule 59G-8.200(14) (e)1.e., Florida Administrative Code. 16. ‘he Handbook amplifies the foregoing rule provision, explaining that {[iln order to implement services authorized on a plan of care, the case manager must transmit service authorizations to specific providers of PAC waiver services included in the plan of care. Service authorizations must be sent to PAC waiver services providers within five working days of services being authorized on the recipient's written plan of care. Handbook at 2-10. 17. Included with the Handbook, in Appendix Cc, is a Service Authorization form that case managers are encouraged to use. The instructions for use of this form state, in pertinent part, as follows: The case manager should notify providers that services have been authorized by using “the PAC Service Authorization form. Each enrolled Medicaid PAC program service provider must receive authorization before providing services to the PAC client. The authorization form includes the following: Make sure that all authorized services are contained in the current plan of care and that the services are based on needs identified in the needs assessment and that the level of service is justified in_the case narrative. Handbook, Appendix C (boldface in original). 11 18. The Service Authorization form reminds the provider that “[slervices beyond the amount, duration, and scope authorized [hereby] will not _be reimbursed.” Handbook, Appendix C (boldface in original). 19. Individuals eligible for assistance under the PAC Waiver program may receive a number of covered services, including the provision of “consumable medical supplies.” See Rule 59G-8.200(14) (b)4., Florida Administrative Code (setting forth qualifications needed to provide consumable medical supplies under PAC Waiver program). 20. The term "consumable medical supplies" is defined by rule to mean "expendable, disposable, and non-durable items used for the treatment of specific injuries or diseases or for persons who have chronic medical or disabling conditions. These supplies exceed those routinely furnished by the provider in conjunction with skilled care and home health aide visits." Rule 59G-8.200(2) (h), Florida Administrative Code (emphasis added). 21. The Handbook defines “consumable medical supplies” somewhat differently, incorporating several elements of the rule (expendable, disposable, non-durable) and adding to them a gloss that affords a fuller description of the covered items: Consumable medical supplies are medically- necessary medical or surgical items that are consumable, expendable, disposable or non- 12 durable, and appropriate for use in the recipient’s home. Medicaid only reimburses consumable medical supplies that if not provided could reasonably cause the recipient to require emergency treatment, become hospitalized, or be placed in a long- term care facility. Consumable medical supplies must not exceed one month’s usage. Handbook at 2-35 (emphasis added). 22. Consumable medical supplies fall within a Medicaid billing category called “Specialized Medical Equipment and Supplies” that is denoted by the procedure code W9994. Also included in this category of services is durable medical and adaptive equipment which “is medically-necessary . . . and can withstand repeated use . . . in the recipient’s home.” Handbook at 2-34. Examples of the latter are mattresses, humidifiers, and wheelchairs. 23. Medicaid will reimburse a provider of specialized medical equipment and supplies only for items furnished that are (1) “[slpecifically identified in the recipient's plan of care” and (2) “[p]lrescribed by a licensed physician, advanced registered nurse practitioner, or physician assistant designee.” Handbook at 2-34. 24. All Medicaid providers, including case managers and home health agencies such as Full Health, must “retain medical, professional, financial, and business records pertaining to 13 services and goods furnished to a Medicaid recipient and billed to Medicaid for a period of 5 years after the date of furnishing such services or goods. The agency may investigate, review, or analyze such records, which must be made available during normal business hours.” Section 409.913(8), Florida Statutes; see also Section 409.907(3)(c), (e), Florida Statutes (prescribing provisions respecting records retention and review for inclusion in Medicaid provider agreements) . 25. By rule, the Agency specifically requires that case managers retain plans of care and service authorizations, among other documents, in their files. Rule 59G-8.200(14) (e)2.f£., g., Florida Administrative Code. The files of other participating provider agencies, such as Full Health, must contain at least the service authorizations, provider eligibility documents, and provider enrollment documents. Rule 59G-8.200(14) (e)3., Florida Administrative Code. Full Health's Provision of Universal Precaution Kits During the Audit Period 26. Full Health delivered the universal precaution kits at issue to 57 PAC Waiver recipients between the dates of November 15, 1999, and May 10, 2000——a period of about six months (the "Focal Period") that comprises a subset of the audit period. Ms. Gonzalez has been employed by Full Health since October 1999 as the company's President, a position she held, 14 therefore, during the entire Focal Period. Her extensive testimony on Full Health's business practices regarding the provision of universal precaution kits was believable and forms the primary basis of the fact findings set forth in this section of the Recommended Order. 27. During the Focal Period, Full Health automatically furnished universal precaution kits to all PAC Waiver recipients in the ordinary course of its business. Full Health followed this routine in part to comply with doctors’ orders that were communicated directly to Full Health verbally but never reduced to writing, and also because Ms. Gonzalez understood that the routine provision of universal precaution kits to AIDS patients was a generally accepted, standard practice in the medical community, one that home health agencies customarily observed. 28. As a matter of course, then, Full Health delivered universal precaution kits to each patient once a week, and a week's supply for each patient might consist of multiple universal precaution kits. Full Health thereafter would submit claims to Medicaid for payment on each individual universal precaution kit delivered, at a cost of $55.00 apiece, reporting a separate date of service for every single one. For example, during the month of January 2000, Full Health delivered 27 universal precaution kits to a patient named J.G. Full Health's subsequent Medicaid claims showed that J.G. had received this 15 $55.00 service on each day of the month (including New Year's Day) except January 9, 16, 23, and 30—all Sundays. 29. Full Health received not one service authorization for any of the universal precaution kits it delivered to PAC Waiver patients during the Focal Period. Indeed, these 57 patients’ case managers neither authorized, nor had any involvement whatsoever in, Full Health's provision of the universal precaution kits at issue. 30. Although Ms. Gonzalez credibly denied having seen any plans of care for the 57 patients who received universal precaution kits from Full Health during the Focal Period, her testimony nevertheless establishes that, more likely than not, the pertinent plans of care failed to identify universal precaution kits specifically as an authorized service. This crucial fact may be (and has been) reasonably inferred from Ms. Gonzalez's unequivocal and unambiguous testimony that none of the case managers involved had authorized any of the universal precaution kits that were delivered during the Focal Period, and none had sent Full Health a service authorization approving the provision of universal precaution kits.°* 31. The relevant plans of care (Respondent's Exhibits 13 through 69)° corroborate Ms. Gonzalez's testimony that the case managers were not involved with, and did not authorize, the provision of universal precaution kits during the Focal Period. 16 To the point, these documents—in which universal precaution kits are not specifically identified—supplement Ms. Gonzalez's testimony, in the sense of completing the picture that she herself had painted rather vividly; and, moreover, they confirm the accuracy of her perception and the acuity of her recollection of the historical facts. But, it must be stressed, the finding in the immediately preceding paragraph was not based on Respondent's Exhibits 13 through 69; the fact-finder could have and would have made the same finding without these documents, which have been considered as secondary evidence only—and then largely because to have ignored them completely would have violated the evidentiary principles that govern administrative proceedings.’ Ultimate Factual Determinations 32. The greater weight of evidence establishes—indeed, it is undisputed—that the universal precaution kits at issue were routinely furnished by Full Health in conjunction with home health aide visits.® Moreover, Rule 59G-8.200(2) (h), Florida Administrative Code, affirmatively and unambiguously places such routinely furnished items outside the boundaries which delimit "consumable medical supplies." Thus, as a matter of fact, the universal precaution kits at issue are not Medicaid-compensable “consumable medical supplies" as the rule defines that term. 17 33. Additionally, a preponderance of evidence demonstrates that none of the universal precaution kits that Full Health furnished to 57 patients during the Focal Period was specified in any patient's plan of care for the Focal Period. Therefore, the entire $193,232.50 that Medicaid indisputably paid to Full Health in reimbursement for these universal precaution kits was an "overpayment" as defined in Section 409.913(1) (d), Florida Statutes. This amount is subject to recoupment. See Rule 59G- 8.200(6) (g), Florida Administrative Code.
Conclusions J. Everett Wilson, Esquire Michael Gennett, Esquire Wilson, Suarez & Lopez Union Planters Bank Building 2151 LeJeune Road, Mezzanine Coral Gables, Florida 33134-4200 L. William Porter, II, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Executive Center III Tallahassee, Florida 32308-5403
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency enter a final order requiring Full Health to repay the Agency the principal amount of $193,232.50. DONE AND ENTERED this 25% day of dune, 2001, in Tallahassee, Leon County, Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25% day of June, 2001.
Findings Of Fact At all times relevant hereto Respondent was licensed as a physician in the State of Florida having been issued license number ME0040318. Respondent completed a residency in internal medicine and later was a nephrology fellow at Mayo Clinic. He was recruited to Florida in 1952 by Humana. In 1984 he became associated with a Health Maintenance Organization (HMO) in an administrative position but took over treating patients when the owner became ill. This HMO was affiliated with IMC who assimilated it when the HMO had financial difficulties. At all times relevant hereto Respondent was a salaried employee of IMC and served as Assistant Medical DIRECTOR in charge of the South Pasadena Clinic. On October 17, 1985, Alexander Stroganow, an 84 year old Russian immigrant and former cossack, who spoke and understood only what English he wanted to, suffered a fall and was taken to the emergency Room at a nearby hospital. He was examined and released without being admitted for inpatient treatment. Later that evening his landlady thought Stroganow needed medical attention and again called the Emergency Medical Service. When the ambulance with EMS personnel arrived they examined Stroganow, and concluded Stroganow was no worse than earlier when he was transported to the emergency Room, and refused to again take Stroganow to the emergency Room. The landlady then called the HRS hotline to report abuse of the elderly. The following morning, October 18, 1985, an HRS case worker was dispatched to check on Stroganow. Upon arrival, she was admitted by the landlady and found an 84 year old man who was incontinent, incoherent, and apparently paralyzed from the waist down, with whom she could not engage in conversation to determine his condition. She called for a Cares Unit team to come and evaluate Stroganow. An HRS Cares Unit is a two person team consisting of a social worker and nurse whose primary function is to screen clients for admission to nursing homes and adult congregate living facilities (ACLF). The nurse on the team carries no medical equipment such as stethoscope, blood pressure cuff, or thermometer, but makes her evaluation on visual examination. Upon arrival of the Cares Unit, and, after examining Stroganow, both members of the team agreed he needed to be placed where he could be attended. A review of his personal effects produced by his landlady revealed his income to be above that for which he could qualify for medicaid placement in a nursing home; that he was a member of IMC's Gold-Plus HMO; his social security card; and several medications, some of which had been prescribed by Dr. Dayton, Respondent, a physician employed by IMC at the South Pasadena Clinic. The Cares team ruled out ACLF placement because Stroganow was not ambulatory, but felt he needed to be placed in a hospital or nursing home and not left alone with the weekend approaching. To accomplish this, they proceeded to the South Pasadena HMO clinic of IMC to lay the problem on Dr. Dayton, who was in charge of the South Pasadena Clinic, and, they thought, was Stroganow's doctor. Stroganow had been a client of the South Pasadena HMO for some time and was well known at the clinic as well as by EMS personnel. There were always two, and occasionally three, doctors on duty at South Pasadena Clinic between 8:00 and 5:00 daily and, unless the patient requested a specific doctor he was treated by the first available doctor. Stroganow had not specifically requested to be treated by Respondent. When the Cares unit met with Respondent they advised him that Stroganow had been taken to Metropolitan General Hospital Emergency Room the previous evening but did not advise Respondent that the EMS squad had refused to return Stroganow to the emergency Room when they were recalled for Stroganow the same evening. Respondent telephoned the Metropolitan General Emergency Room and had the emergency Room medical report on Stroganow read to him. With the information provided by the Cares unit and the hospital report, Respondent concluded that Stroganow needed emergency medical treatment and the quickest way to obtain such treatment would be to call the EMS and have Stroganow taken to an emergency Room for evaluation. When the Cares unit arrived, Respondent was treating patients at the clinic. A clinic, or doctors office, is not a desirable or practical place to have an incontinent, incoherent, and non-ambulatory patient brought to wait with other patients until a doctor is free to see him. Nor is the clinic equipped to perform certain procedures that may be required for emergency evaluation of an ill patient. At a hospital emergency Room such equipment is available. EMS squads usually arrive within minutes of a call being placed to 911 for emergency medical treatment and it was necessary that someone be with Stroganow when the EMS squad arrived. Accordingly, Respondent suggested that the Cares team return to Stroganow and call 911 to transport Stroganow to an emergency Room for an evaluation. Upon leaving the South Pasadena clinic the Cares team returned to Stroganow. Enroute they stopped to call a supervisor at HRS to report that the HMO had not solved their problem with Stroganow. The supervisor then called the Administrator at IMC Tampa Office to tell them that one of their Gold-Plus HMO patients had an emergency situation which was not being property handled. Respondent left the South Pasadena Clinic around noon and went to IMC's Tampa Office where he was available for the balance of the afternoon. There he spoke with Dr. Sanchez, the INC Regional Medical Director, but Stroganow was not deemed to be a continuing problem. By 2:00 p.m. when no ambulance had arrived the Cares Unit called 911 for EMS to take Stroganow to an emergency Room. Upon arrival shortly thereafter the EMS squad again refused to transport Stroganow. The Cares team communicated this to their supervisor who contacted IMC Regional Office to so advise. At this time Dr. Sanchez authorized the transportation of Stroganow to Lake Seminole Hospital for admission. Although neither Respondent nor Sanchez had privileges at Lake Seminole Hospital, IMC had contracted with Lake Seminole Hospital to have IMC patients admitted by a staff doctor at Lake Seminole Hospital. Subsequent to his meeting with the Cares team Respondent received no further information regarding Stroganow until well after Stroganow was admitted to Lake Seminole Hospital. No entry was made on Stroganow's medical record at IMC of the meeting between Respondent and the Cares Unit. Respondent was a salaried employee whose compensation was not affected by whether or not he admitted an IMC Gold-Plus patient to a hospital.
The Issue The issues in this case are whether Respondent committed the alleged violation and, if so, should his Pinellas County Paramedic Certificate be revoked.
Findings Of Fact At all times relevant to this proceeding, Respondent was employed as a paramedic by the City of Clearwater Fire and Rescue Department ("CFRD"). In this capacity, Respondent worked under the auspices of the medical director for Pinellas County EMS. The Pinellas County emergency protocols are written requirements that paramedics must follow when administering emergency treatment to patients. The protocols are published in a document entitled Pinellas County Medical Operations Manual, commonly called the "MOM Protocols," which are approved by the medical director and distributed to all Pinellas County EMS paramedics. Respondent received a copy of the most recent medical operations manual in January 2005. At all times relevant to this proceeding, Respondent and fellow paramedic, Trevor Murray, were members of CFRD Crew "B" shift for Pinellas County, referred to colloquially as "R49B." Mr. Murray was the "lead medic" according to then- current CFRD nomenclature, meaning that he drove the team's vehicle, operated the vehicle's radio, made decisions regarding appropriate medical treatment to be rendered to a patient, and was responsible for all written reports. The evidence conflicted as to whether the lead medic, Mr. Murray, functioned as Respondent's supervisor. CFRD chief, Jamie Geer, testified that the position of lead medic was merely a designation bargained for by the firefighters' union in order to obtain a pay differential for the additional tasks of driving and filing reports and that the position carried no supervisory responsibility. Respondent testified that, whatever the official view espoused by Chief Geer, the common understanding in the firehouse was that the lead medic supervised the paramedic with whom he rode. Respondent conceded that the lead medic and the paramedic are required to follow the same Pinellas County EMS rules and MOM protocols. Nonetheless, given the list of duties entrusted to the lead medic, it was not unreasonable for Respondent to view Mr. Murray as his supervisor. There was no dispute that the Pinellas County OMD recognizes only the designation "paramedic," meaning a paramedic certified by the State of Florida and certified by the Pinellas County OMD. The Pinellas County OMD took no official notice of the CFRD's distinction between lead and non-lead paramedics.1 During the early morning hours of March 26, 2005, Respondent and Mr. Murray were the crew of R49B. At approximately 5:30 a.m., R49B was dispatched in response to a 911 call for emergency medical assistance at 309 South Maywood Avenue. The caller reported that a sexual assault had occurred. The Clearwater Police Department and the Sunstar Ambulance Service were also dispatched to the stated address. The address, 309 South Maywood Avenue, was immediately recognized by Mr. Murray as the residence of a 41-year-old female who had called 911 approximately 15 times over a two-year period for the same type of complaint. The various patient care reports filed by Pinellas County EMS over the course of two years indicated that the woman had an extensive psychiatric history. She claimed to be the victim of a massive government conspiracy that included the FBI, the CIA, and the DEA. She claimed that then-Attorney General John Ashcroft had entered her residence and sexually assaulted her on many occasions. The reports indicated that she was difficult and combative at times with the police and paramedics who responded to her calls. The record indicates that she had accused at least one emergency responder of a sexual assault. By the time R49B received the call from the dispatcher, officers from the Clearwater Police Department were on the way to the address. Mr. Murray told the dispatcher to have the police officers call back if they arrived and discovered that an actual emergency existed. Mr. Murray then placed R49B back on "available" status, meaning that it was free to respond to other calls. The record indicates that R49B was not called back on the morning of March 26, 2005, concerning 309 South Maywood Avenue. Respondent and Mr. Murray manned an Advanced Life Support Unit ("ALS Unit"). MOM Protocol 3.1k provides, in relevant part: An ALS Unit . . . must continue to the scene of every 911 request for service and determine the need for EMS first hand. Once the 911 system is activated for an EMS call, a County Certified Paramedic must investigate it. An EMS response shall not be canceled by the general public or law enforcement. Chief Geer testified that the quoted protocol means that paramedics have no discretion as to whether to respond to a 911 call, unless there is a possibility of violence. MOM Protocol 6.5 may be invoked to provide for "staging" on a call involving possible violence. Staging essentially provides for law enforcement to secure the area before emergency services personnel enter. There was no indication that the woman at 309 South Maywood Avenue posed a threat of violence, though she had been accusatory and otherwise verbally abusive to EMS personnel. As of March 26, 2005, there were no standing orders to stage on calls from 309 South Maywood Avenue. Chief Geer further testified that 15 calls in one day or week might cause the CFRD to label someone a "problem caller" meriting special treatment, but that 15 calls over a two-year period was insufficient. Chief Geer stated that it is not uncommon for Alzheimer's patients, for example, to dial 911 several times in one day. A caller is labeled a "problem caller" and referred to the Clearwater Police Department when there is evidence of maliciousness. Chief Geer noted that all indications were that the caller at 309 South Maywood Avenue believed she needed medical assistance. In such cases, the paramedics do not have the discretion to ignore a 911 call or to wait for the police to let them know whether the emergency is "real." Dr. Laurie Romig, the medical director for Pinellas County EMS, testified that it is imperative for Pinellas County EMS to have the same response for every 911 call. The fact that a certain address is known and notorious among paramedics is not germane. The caller could be another person at the same address or the same person with a different problem. The only way to be sure that a 911 call is a false alarm is to respond to the call. At the hearing, Respondent conceded that he and Mr. Murray should have responded to the call. He made no attempt to minimize the dereliction of duty involved in failing to respond to a 911 call. Respondent's defense was that Mr. Murray, the lead medic, made the decision not to respond to the call. Respondent testified that he objected to Mr. Murray's decision, but that he considered it a direct order from a superior that he must follow. Respondent did not report the incident to superior officers at the time it occurred. After hearing R49B's radio response to the 309 South Maywood Avenue dispatch, the communications supervisor for the Sunstar Ambulance Service notified David Hudak, the Pinellas County medical communications officer, about the incident. Mr. Hudak initiated a quality assurance review ("QAR"), a process designed to assure that Pinellas County EMS personnel have provided quality care and observed the applicable MOM Protocols. Mr. Hudak also informed the Pinellas County OMD's quality assurance manager, David Lock, of the incident and the initiation of the QAR. Mr. Lock took charge of the investigation. On March 28, 2005, Mr. Lock met with Dr. Romig and Jeff Bernard, the executive director of the Pinellas County OMD, and briefed them on the subject of his investigation. Dr. Romig testified that "my jaw dropped" upon hearing what had occurred, because she had never encountered a situation in which paramedics had not responded to a 911 call. Dr. Romig placed Respondent and Mr. Murray on "clinical suspension," pursuant to Pinellas County EMS Rule XIII.E.1.a., pending the outcome of the QAR. A clinical suspension precludes a paramedic from participating in patient care in any capacity. The QAR process consists of an informal, fact-finding process followed by a formal hearing before the medical director. Mr. Lock initiated the informal stage by reviewing the documentary record, including the written incident reports and copies of the patient care records from previous calls to 309 South Maywood Avenue. Mr. Lock confirmed that Respondent and Mr. Murray were properly dispatched to 309 South Maywood Avenue, that neither Respondent nor Mr. Murray notified their superior officer of their failure to respond to the call, and that Respondent and Mr. Murray admitted that their conduct was in violation of MOM Protocols and Pinellas County EMS rules regarding a paramedic's duty to act. The formal investigatory hearing was held on May 3, 2005, before Dr. Romig. At the hearing, Respondent again admitted to violating MOM Protocols. After the hearing, Dr. Romig decided to revoke Respondent's county certification. Dr. Romig testified that her decision hinged on the question of trust. Dr. Romig oversees approximately 750 paramedics and 750 emergency medical technicians, all of whom work under the authority of her medical license. See Section 401.265, Florida Statutes (2005).2 She was not aware of Respondent's existence until this situation arose. Dr Romig testified as follows: t's been said over and over again today about the basic expectation of the public being that when they call, we come. And when I provide the authority for paramedics and EMTs to work under my license, because we're such a big system, I can't get to know each and every one of them intimately in order to establish, you know, a trust level, so I have to grant them trust to begin with. And my problem is, if I can't trust that they follow such a basic tenet as "you call, you go," how can I trust them to make much more complex decisions such as administering medications or doing procedures that could actually harm somebody as much as help them. . . . I don't have any evidence to say that their skills aren't good, but it's their decision making that I have to call into question and whether or not I can trust them to do what I ask them to do. Dr. Romig testified that in the case of an improperly administered medication, she could require training and testing to ensure that the paramedic does not repeat the error. However, Dr. Romig believed there is no way to remediate her basic trust in a paramedic's judgment once it has been broken. Therefore, she concluded that revocation was the only appropriate remedy. Dr. Romig's testimony is credited, and her conclusion was reasonable. Respondent's claim that he was only obeying the instructions of his superior, Mr. Murray, would be more compelling had Respondent taken any subsequent action to bring Mr. Murray's breach of duty to the attention of their superiors. Respondent's silence at the time of the incident indicates acquiescence, if not approval, of the course of action taken by Mr. Murray. Respondent offered evidence sufficient to establish that the resident of 309 South Maywood Avenue was a nuisance caller, if not a "problem caller" under Chief Geer's criteria. However, Respondent's evidence falls far short of demonstrating that he was justified in not responding to the call from that residence on the morning of March 26, 2005. The Pinellas County OMD must ensure that EMS personnel provide quality care and are not a danger to the safety of the county's residents. As the medical director, Dr. Romig is ultimately accountable for the actions of the paramedics operating under her license. Respondent breached the most basic level of his duty as a paramedic: to respond to every 911 call for emergency medical assistance. Given all the circumstances, Dr. Romig had sufficient cause to revoke Respondent's Pinellas County Paramedic Certification.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Pinellas County Emergency Medical Services, Office of the Medical Director, enter a final order finding Respondent guilty of the violations alleged in the Notice of Revocation dated May 10, 2005, and revoking Respondent's Pinellas County Paramedic Certificate. DONE AND ENTERED this 13th day of March, 2006, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2006.
The Issue The issue in this case is whether Respondent, Joseph Ovadia, M.D., committed the violations alleged in an Administrative Complaint issued by Petitioner, the Department of Health, on August 26, 2002, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. Respondent, Joseph Ovadia, M.D., is, and was at the times material to this matter, a physician licensed to practice medicine in Florida, having been issued license number ME 0046214. At the times material to this matter, Dr. Ovadia was on staff at Homestead Hospital, with emergency "on-call" responsibilities. Although not certified by the Board of Medicine (hereinafter referred to as the "Board"), Dr. Ovadia specialized in orthopedic surgery, with sub-specialties in joint reconstruction, and shoulder and hand surgery. Dr. Ovadia received his medical degree from McGill University in Canada. He completed an internship/residency in orthopedic surgery at the Department of Orthopedics at New York University Medical Center, completed a clinical assistantship in London, England, and has been licensed to practice in Florida since 1985. Dr. Ovadia is a Medicare and Medicaid provider with approximately 30 percent of his practice devoted to Medicaid patients. As a result of the incidents involved in this matter, Dr. Ovadia's privileges at Homestead Hospital were revoked in 1998. Dr. Ovadia has not been disciplined by the Board. He has made one malpractice payout of $30,000.00 in 1986. The Department's Administrative Complaint and Dr. Ovadia's Request for Hearing. On August 22, 2002, the Department filed a three-count Administrative Complaint against Dr. Ovadia before the Board alleging that his treatment of three patients, identified in the Administrative Complaint as W.G., F.S., and W.L, constituted gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances (the recognized acceptable treatment will hereinafter be referred to as the "Standard of Care"), a violation of Section 458.331(1)(t), Florida Statutes. On or about October 3, 2002, Dr. Ovadia executed an Election of Rights form, indicating that he disputed the allegations of fact contained in the Administrative Complaint and requesting a formal administrative hearing pursuant to Section 120.569(2)(a), Florida Statutes. Dr. Ovadia's request for a formal administrative hearing was filed by the Department with the Division of Administrative hearings. Treatment of Patient W.G. On August 21, 1997, W.G., who was 53 years of age at the time, presented to Homestead Hospital's emergency room. W.G. arrived a little after 7:00 p.m. (2100 hours). At the time of his arrival and throughout his stay in the emergency room, W.G.'s condition was not life-threatening. Dr. Ovadia was acting as the on-call orthopedic surgeon for Homestead Hospital on August 21, 1997, at all times relevant to the treatment of W.G. W.G. presented with a severe laceration (3 centimeters long) to his right thumb which had been caused by an electric saw blade. W.G. was examined by an emergency room physician1 who concluded that W.G. had a lacerated flexor tendon in his right thumb. The emergency room physician determined that it was necessary to consult with Dr. Ovadia concerning W.G.'s injury. The emergency room physician ordered that W.G. be treated with IV antibiotics, that he be given a tetanus shot, and that x-rays be taken of his thumb. Although there is no note in the medical records, W.G.'s wound was cleaned by the emergency room staff, based upon W.G.'s testimony. The x-ray of W.G.'s thumb indicated that he had a comminuted fracture. The x-ray was taken at 7:18 p.m. (1918 hours), but the observation concerning the x-ray was apparently not made until the following day, August 22, 1997, at 11:17 a.m. Petitioner's Exhibit 2, Page 300. A notation at 9:50 p.m. (2155 hours), indicates that "MD on call [called] ortho Ovadia . . . ." There was no direct testimony from the nurse or physician's assistant who made this note that the he or she actually spoke to Dr. Ovadia or whether Dr. Ovadia was only paged. The following note, however, made at 9:55 p.m. (2255 hours), only five minutes after the first note, indicates that the nurse spoke with Dr. Ovadia at 9:55 p.m. Lacking direct evidence as to what took place at 9:50 p.m., an inference is drawn that Dr. Ovadia did not talk with anyone from the emergency room until 9:55 p.m. and that the first notation relates only an effort to page Dr. Ovadia at 9:50 p.m. At 9:55 p.m., Dr. Ovadia was informed by a nurse or physician's assistant that W.G. had been diagnosed with a severe laceration of the flexor tendon of his right thumb. Rather than indicating that he would come to the emergency room to assess the patient, Dr. Ovadia ordered a pressure bandage to be applied to W.G.'s hand and that W.G. be told to come to Dr. Ovadia's office the next morning for follow-up. Although Dr. Ovadia did not come to the hospital to clean and "drain" the wound, or order staff to do so,2 it was reasonable for him to have assumed that the wound had been cleaned by the emergency room staff,3 as it had been, and there was no medical need to drain the wound because it was an open wound.4 Dr. Ovadia's orders at 9:55 p.m. were not acceptable to the unidentified emergency room physician who was treating W.G. at the time. Dr. Ovadia was, therefore, telephoned "several"5 more times. The evidence failed to prove clearly and convincingly that Dr. Ovadia was specifically requested to come to the emergency room to attend to W.G. or that he refused any request to come to the emergency room to take over the care of W.G.6 Despite the failure of the evidence to prove that Dr. Ovadia refused to come to the hospital to treat W.G., it is clear that Dr. Ovadia did not come to the emergency room to assess W.G.'s condition. Instead, at 10:55 p.m. (2255 hours), apparently after the last of the "several" calls made to Dr. Ovadia, Dr. Ovadia ordered that W.G. be admitted to the hospital. Although the medical notes indicate that Dr. Ovadia's orders at 9:55 p.m. were not acceptable to the emergency room physician, there was no evidence to prove why his or her orders were considered unacceptable. The evidence also failed to prove that the emergency room physician's displeasure with those orders was ever reported to Dr. Ovadia or that the emergency room physician was so displeased that he or she personally contacted Dr. Ovadia to discuss the situation. The only direct evidence, which is uncontroverted by the Department, concerning the dispute between Dr. Ovadia and the emergency room on August 21, 1997, came from Dr. Ovadia. Dr. Ovadia believed that the emergency room physician, upon determining that W.G. had suffered a laceration to the flexor tendon, believed that Dr. Ovadia should attend to the injury immediately. Dr. Ovadia, however, realized that immediate attention to the flexor tendon injury was not advisable or necessary until at least the next morning. Dr. Ovadia's opinion about the lack of need for immediate attention to the flexor tendon laceration was agreed with by all of the physicians who testified in this matter. The medical records do not include an order from Dr. Ovadia to debride the wound, regardless of the proper definition of the term, and Dr. Ovadia admits that he did not give such an order. W.G. left the hospital at approximately 11:50 p.m. (2350 hours).7 W.G.'s hand was ultimately repaired a few days later at another hospital. Allegations of Wrongdoing Concerning W.G. In Count One of the Administrative Complaint, it is alleged that Dr. Ovadia failed to follow the Standard of Care in treating W.G. in that he failed to do the following specific acts: come to the hospital to personally examine or treat Patient W.G. on or about August 21, 1997; clean and drain Patient W.G.'s lacerated thumb; or order that other hospital personnel clean and drain the laceration. The Experts' Opinions; The Standard of Care At least five physicians, including Dr. Ovadia, testified concerning the appropriate Standard of Care required in the treatment of W.G. None of the five physicians were consistent; not even the two experts called by the Department, Steven Lancaster, M.D., and Frank Cook, M.D. Dr. Lancaster opined that the appropriate Standard of Care for the treatment of W.G. was: An open fracture with a dirty wound would generally be treated by a reasonable orthopedic surgeon in a similar situation by some type of irrigation [cleaning] and debridement to minimize the chances of infection occurring at a later point. To address the flexor tendon on a delayed basis is reasonable, and as well to address a fracture on a delayed basis is reasonable. But the open wounds [sic] having not been irrigated, debrided, or assessed until the following day would be unacceptable. Petitioner's Exhibit 1, Page 14, Lines 1-9. Dr. Lancaster goes on to opine that Dr. Ovadia failed to meet this Standard of Care by failing to go the hospital to assess, irrigate [clean], and debride the wound. Id. Dr. Cook, opined that the appropriate Standard of Care for the treatment of W.G. was: . . . . Essentially in the W.G. case my opinion would be the correct treatment would be to debride and clean the wound, and to close the skin. Appropriate antibiotics and appropriate prophylactic for tetanus. Transcript, Volume 1, Page 95, Lines 5-9. Dr. Cook agreed that the foregoing Standard of Care for W.G. had been met in all respects except that the skin over the wound was not closed: If you have an exposed flexor tendon, I think you need to close the skin over that for the simple reason of what we discussed. . . . The tendon is much healthier with the skin closed. It doesn't dry out. Transcript, Volume 1, Page 137, Lines 12-17 Dr. Cook, while he discussed Dr. Ovadia's responsibility for making sure W.G.'s wound was cleaned,8 ultimately concludes that it is only the failure to either close the wound himself or order that someone in the emergency room to do so that constitutes a violation of the Standard of Care: Q Is it your testimony that Dr. Ovadia fell below the standard of care because he did not come to see [W.G.] between 10 and 12:00? A No, ma'am. Q I guess when all is said and done, the remaining criticism of Dr. Ovadia is that he did not temporarily close this wound? A That the skin was not temporarily closed either by himself or one of the staff members. (Emphasis added). Transcript, Volume 1, Page 141, Lines 12-20. Dr. Lancaster's opinion that Dr. Ovadia violated the Standard of Care by not going to the hospital to irrigate or clean the wound is not supported by Dr. Cook's opinion. Ultimately, Dr. Cook opined that Dr. Ovadia was not required to go to the hospital, but that any treatment necessary for W.G. could have been ordered by Dr. Ovadia. Dr. Cook ultimately opined that the only treatment required for W.G. which was not provided was the closure of the wound, not the cleaning of the wound. As to Dr. Lancaster's opinion that Dr. Ovadia violated the Standard of Care by not going to the hospital to "debride" the wound, this opinion is also contrary to Dr. Cook's opinion for the same reasons stated in Finding of Fact 32 and, more importantly, is contrary to any allegation in the Administrative Complaint. There is simply no allegation in the Administrative Complaint that Dr. Ovadia violated the Standard of Care by failing to "debride" the wound. Finally, as to the allegation that Dr. Ovadia violated the Standard of Care by failing to go to the emergency room to "assess" W.G., as opined by Dr. Lancaster, this opinion was also contradicted by Dr. Cook. Dr. Cook did not agree that it was necessary for Dr. Ovadia to go to the hospital for anything, even the one error in treatment Dr. Cook believes Dr. Ovadia made: failing to close the wound. While Dr. Cook opined that the wound should have been closed, he was of the opinion Dr. Ovadia could have met this responsibility by either going to the hospital or by giving an appropriate order. It cannot, therefore, be concluded that Dr. Ovadia was required to go to the hospital for any purpose. Finally, although Dr. Cook's testimony about the need for the wound to be closed was convincing, the Administrative Complaint does not contain an allegation that Dr. Ovadia failed to meet the Standard of Care for failing to ensure, personally or through an order, that the wound was closed. The evidence failed to prove that the Standard of Care for the treatment of W.G. required that the wound be "drained." The evidence failed to prove that Dr. Ovadia's treatment of W.G. violated the Standard of Care as specifically alleged in the Administrative Complaint. Treatment of Patient F.S. On the same night that W.G. presented to the emergency room, August 21, 1997, another patient, F.S., a 26-year-old male, also arrived. F.S. was first seen in the Homestead Hospital emergency room at approximately 6:51 p.m. (1851 hours). F.S. had a 6-centimeter razor knife cut across the palm of his left hand. The cut occurred when F.S. fell from a ladder with the razor knife in his hand. The wound was not limb- or life-threatening. F.S. was first seen by Jim Long (hereinafter referred to as "PA Long")9, a physician's assistant in the emergency room. According to PA Long's notes, the bleeding from F.S.'s hand was "uncontrollable". This note, however, conflicts with the emergency room nurse notes, which indicate that, upon his arrival, F.S.'s "bleeding ha[d] stopped." Based upon the weight of the evidence, it is concluded that the nurse notes are correct. The nurses were more likely the first to see F.S. and note his condition, the note is time specific, indicating that the bleeding had stopped "when he came in" and the note appears just before the first time specific entry of 7:15 p.m. (1915 hours). PA Long's notes on the other hand are not time specific until his note of 9:40 p.m. (2140 hours). F.S. was given IV antibiotics and a shot for tetanus. At approximately 7:15 p.m. (1915 hours), F.S. was "set up for suture . . ." by PA Long. Although there was no indication in the notes as to whether the wound was bleeding at this time, logic dictates the conclusion that it was not bleeding, since PA Long was attempting to suture the wound. At some time during the suturing process, the wound began to bleed uncontrollably. As of approximately 7:45 p.m. (1945 hours), PA Long was "unable to stop bleeding." Once the wound began to bleed, it is likely that pressure was applied to it in an effort to stop the bleeding. These efforts were, however, unsuccessful. Consequently, Dr. Ovadia, who it will be recalled, was the on- call orthopedic surgeon the night of August 21, 1997, was called for a consultation. At some point after PA Long attempted unsuccessfully to suture F.S.' wound, a Dr. Sission,10 who was one of two physicians who saw F.S. in the emergency room, discussed the case with Dr. Ovadia. PA Long's note concerning this call indicates that the time of the call was either 8:40 p.m. (2040 hours) or 9:40 p.m. (2140 hours). The evidence failed to prove what the nature of this telephone conference was. In particular, the evidence failed to prove whether Dr. Sission requested that Dr. Ovadia come into the emergency room to assess and treat F.S. or whether he was satisfied with Dr. Ovadia's response. At approximately 9:45 p.m. (2145 hours), at least two hours after the wound began to bleed uncontrollably, PA Long spoke to Dr. Ovadia. The nurse's notes indicate that the conversation took place at 9:55 p.m. (2155), the same time noted in the notes concerning W.G. that Dr. Ovadia was telephoned about W.G. Dr. Ovadia indicated that he did not want to come to the hospital to see F.S. Instead, he ordered that a pressure bandage be applied and that F.S. be instructed to see Dr. Ovadia in his office in the morning. Dr. Ovadia's order at 9:45 p.m., like his order with regard to W.G., was not acceptable to the "ER physician" treating F.S. at the time. Dr. Ovadia was, therefore, telephoned "several"11 more times. Although the evidence failed to prove that Dr. Ovadia was specifically requested to come to the emergency room to attend to F.S., the evidence did prove that Dr. Ovadia refused to come to the emergency room to take over the care of F.S.12, and that Dr. Ovadia did not in fact come to the emergency room to assess F.S.'s condition. Instead, at 10:55 p.m. (2255 hours), the same time he ordered W.G. admitted to the hospital, Dr. Ovadia ordered that F.S. be admitted to the hospital, despite the fact that it had been three hours since the wound had begun to bleed again. Unlike W.G., during at least one of the follow-up calls to Dr. Ovadia, Dr. Ovadia was told that emergency room staff did not believe that applying a pressure bandage was adequate. Because pressure had been applied after the wound began to bleed without any apparent effect and because the emergency room personnel were concerned that F.S. had cut part of one of the arteries in his hand, the emergency room staff told Dr. Ovadia that his orders were not sufficient. See Dr. Cook's testimony at Lines 3-12, Page 102, Transcript, Volume 1. F.S. left the hospital at approximately midnight.13 Allegations of Wrongdoing Concerning F.S. In Count Two of the Administrative Complaint, it is alleged that Dr. Ovadia failed to follow the Standard of Care in treating F.S. in that he failed to do the following specifically alleged acts: come to the hospital to personally examine or treat Patient F.S. on or about August 21, 1997; or stop the uncontrollable bleeding from the wound on Patient F.S. [sic] palm. The Experts' Opinions; The Standard of Care Again, five physicians, including Dr. Ovadia, testified concerning the appropriate Standard of Care required in the treatment of F.S. As was the case with the experts' testimony about the Standard of Care for W.G., the five physicians who testified about F.S. gave inconsistent testimony. Unlike the testimony concerning W.G., however, the testimony of the two experts called by the Department, Dr. Lancaster and Dr. Cook, was consistent to the extent they testified about at least one of the specific acts alleged in the Administrative Complaint (paragraph "a." quoted in Finding of Fact 49, supra. Dr. Lancaster opined that Dr. Ovadia violated the appropriate Standard of Care for the treatment of F.S.: Q Could you please express you opinion as to this case? A My opinion is that Dr. Ovadia, as the orthopedic surgeon that was contacted being on-call for a hemorrhaging laceration, fell below the standard of care by not coming to the hospital to assess that or take appropriate actions to treat that. Q And why would you believe it necessary to come to the hospital to see this patient? A My understanding of the injuries were that this was a knife wound to the palm with arterial-type bleeding that the emergency room physician had assessed and did not feel comfortable with for fear of continued hemorrhage. That would represent potentially a case where an individual could bleed out from a wound like that. Most of those do not. But the idea would be that this would need to be assessed by someone with more specialization than the emergency room physician to make a decision whether this should be repaired, not repaired, or what direction they should take. By failing to come to the hospital when asked as an orthopedic surgeon on call, this could then fall below the standard of care. Petitioner's Exhibit 1, Page 16, Lines 16-25, and Page 17, Lines 1-10. Dr. Cook opined the following concerning the appropriate Standard of Care for the treatment of F.S. and Dr. Ovadia's failure to meet that Standard: Q We'll go into detail, but at this point, were you able to formulate a medical opinion [concerning F.S.]? A Yes. . . . . Q What would that opinion be? A My opinion was that the emergency room felt uncomfortable dealing with this patient injury. It was their opinion that he cut part of, one of the arteries in the hand. It's called the distal palma arch. It's part of that arterial circulation in the hand. And despite putting pressure dressings on it, they still felt uncomfortable that the bleeding was [un]controlled. That's why the numerous phone calls requesting orthopedic back up or assessment were requested. Transcript, Volume 1, Page 101, Lines 22-25 and Page 102, Lines 1-12. While Dr. Ovadia's expert witness, Jorge Obray, M.D., disagreed with the ultimate opinions of Drs. Lancaster and Cook concerning whether Dr. Ovadia met the Standard of Care with regard to F.S., he did so essentially because of his conclusion that there was insufficient time before Dr. Ovadia should have realized that he should come in to assess and treat F.S. and when F.S. left the hospital. Dr. Obray did agree, however, that, if the bleeding had not been stopped by a pressure bandage within an hour, Dr. Ovadia should have come in and dealt with the patient: Q How long would you expect to wait until the bleeding stopped? A When I use a pressure dressing, I put them for one hour, take them off and see if it stops bleeding. If it stops bleeding, I put a lighter dressing on it and they go home. Q And if the wound for some reason did not stop bleeding, what would be your opinion of treatment then? A Well, then I could have to come in and actually myself do something to stop the bleeding, which usually means put a suture on the arterial arteries, ligate the arteries to control the bleeding. Respondent's Exhibit 4, Page 24, Lines 1-14. This opinion is not inconsistent with the opinions expressed by Drs. Lancaster and Cook. Dr. Cook also agreed that waiting an hour after applying a pressure bandage would not be unreasonable: Q How soon would you have expected [Dr. Ovadia] to come in once he was first called in this case? A With the bleeding hand I think an hour's time is not unreasonable. Transcript, Volume 1, Page 150, Lines 1-6. The difference in the ultimate opinion of Dr. Obray and the ultimate opinions of Drs. Lancaster and Cook is due to Dr. Obray's conclusion that insufficient time had passed between the time Dr. Ovadia ordered a pressure dressing and when he would have been expected to come see F.S. Dr. Obray's factual distinction is not, however supported by the record. Dr. Ovadia knew that F.S.'s hand was bleeding for over three hours when he ordered F.S. admitted to the hospital and it was another hour after that before F.S. left the hopsital: 7:45 p.m.: F.S. began to bleed and unsuccessful efforts were made by the emergency room staff to stop the bleeding; 9:55 p.m.: Just over two hours after F.S.' hand began to bleed, Dr. Ovadia was informed of the situation. Dr. Ovadia ordered a pressure bandage; 10:55 p.m.: During the hour after Dr. Ovadia ordered a pressure bandage, and more than three hours after the bleeding started, "several" calls were made to Dr. Ovadia. Concern over Dr. Ovadia's order to apply a pressure bandage were related to Dr. Ovadia. Dr. Ovadia ordered F.S. admitted; and 11:55 p.m.: Finally, although the evidence failed to prove whether the bleeding stopped at some time after 10:55 p.m., an hour passed before F.S. left the hospital. Based upon the foregoing, and the consistent opinions of Drs. Lancaster and Cook, it is concluded that Dr. Ovadia violated the Standard of Care in his treatment of F.S. by failing to "come to the hospital to personally examine or treat Patient F.S. on or about August 21, 1997, as alleged in the Administrative Complaint, subparagraph "a." quoted in Finding of Fact 49, supra. The evidence failed to prove, however, that Dr. Ovadia violated the Standard of Care in his treatment of F.S. by failing to "stop the uncontrollable bleeding from the wound on Patient F.S. [sic] palm." No expert opinion to support such a finding was given in this matter. Treatment of Patient W.L. On October 5, 1997, patient W.L., a 52-year-old male, was brought to the emergency room of Homestead Hospital at approximately 5:34 p.m. (1734 hours). W.L. had been involved in a severe motorcycle accident and was in a great deal of pain when he arrived. He had suffered multiple injuries, including a limb-threatening open posterior compound dislocation of his right elbow. The injury was serious and required reasonably expeditious treatment. Dr. Ovadia was the on-call orthopedic surgeon at the time of W.L.'s arrival. Dr. Ovadia was in an operating room performing surgery on another patient when he was informed of W.L.'s condition. After completing the surgery, Dr. Ovadia examined W.L., ordered that he be given pain relief medicine, and recommended immediate surgery for W.L.'s dislocated elbow, to which W.L. gave verbal consent at approximately 7:45 p.m. (1945 hours). Dr. Ovadia arranged for the necessary surgery personnel and waited while Leonard D. Benitez, M.D., the on-call general surgeon, was contacted for clearance of the surgery. W.L. was reported in the Emergency Department Nursing Assessment form to be resting comfortably as of 9:00 p.m. (2100 hours), which was about the time that Dr. Benitez finally arrived at the hospital. Dr. Benitez, Dr. Ovadia, and W.L. came together in the CT scan room. A verbal altercation then ensued, between Drs. Benitez and Ovadia, which ended with Dr. Ovadia leaving the CT scan room. Claudette Pinto,14 the nurse supervisor that evening, left the CT scan room with Dr. Ovadia. Ms. Pinto told Dr. Ovadia that she would contact "administration to report the verbal altercation."15 Dr. Ovadia went to the lounge to wait for Ms. Pinto to report back. After waiting in the lounge without any word from Ms. Pinto, Dr. Ovadia contacted Ms. Pinto, who told him that she had called Dr. Russell, the Chief of Surgery for Homestead Hospital and reported the incident. Ms. Pinto told Dr. Ovadia that Dr. Russell was dismissing him from the care of W.L. and that W.L. would be transferred to another hospital for orthopedic care.16 At 9:30 p.m. (2130 hours), Dr. Ovadia spoke with Dr. Russell to confirm Ms. Pinto's message. Dr. Russell confirmed Ms. Pinto's report: Dr. Russell dismissed Dr. Ovadia from further care of W.L. and took over responsibility for arranging for W.L. to be transferred to another hospital.17 Following his dismissal from the care of W.L. by Dr. Russell, Dr. Ovadia left Homestead Hospital and went home. Although his care of W.L. had been terminated by Dr. Russell, his on-call status had not been. Dr. Ovadia, therefore, remained on-call. Emergency room staff were eventually instructed to contact Dr. Ovadia to ask him whether he "would like to resume care of W.L."18 Dr. Ovadia was first contacted by emergency room staff after being dismissed from W.L.'s care and being informed that W.L. would be transferred to another facility, at approximately 11:35 p.m. (2335 hours). This telephone call came approximately two hours after Dr. Ovadia had been dismissed by Dr. Russell. Dr. Ovadia was offered the opportunity to resume care of W.L. Dr. Ovadia informed whoever made the telephone call that he could not do so because he had been removed from W.L.'s care by Dr. Russell.19 Dr. Ovadia indicated that Dr. Russell would have to instruct him to return. Although Dr. Ovadia was surprised that W.L. was still at Homestead Hospital, he still had no authority to counteract Dr. Russell's orders. At approximately 1:00 a.m. (0100 hours), October 5, 1997, Dr. Russell telephoned Dr. Ovadia, as requested. Dr. Russell asked Dr. Ovadia if he would like to resume care of W.L., to which Dr. Ovadia responded "no." Dr. Russell did not tell Dr. Ovadia that he was being reassigned to W.L.'s care or that Dr. Russell no longer planned to transfer W.L. to another facility. At 1:40 a.m. (0140 hours) a nurse's note indicates that Dr. Ovadia was "contacted again [apparently by Dr. Russell] regarding Pt acceptance. Pt was not accepted by Dr. Ovadia." [Emphasis added]. Between the 11:35 p.m. and the 1:40 a.m. nurse's notes and after the 1:40 a.m. note, there follows a series of notes, all of which report the status of W.L., which Dr. Ovadia remained unaware of, indicating the confusion caused by Dr. Russell's decision to transfer W.L. to another facility, describing the ultimate frustration of the emergency room nursing staff, and explaining the ultimate problem with caring for W.L., the inability to obtain insurance authorization for his care:20 0005 Dr. Benitez signs admit orders for Homestead hospital if procedure for ortho surgery can be performed at Homestead hospital . . . . 0020 Awaiting instructions concerning pt transfer or admit instructions. Pt resting comfortably still on spine board. IV intract f/owing KVO . . . . 0200 Pt resting comfortably, multiple facilities, multiple physicians contacted. No admit, no transfer, no surgery, no change in status of Pt care. 0220 . . . . No change in transfer admit status. . . . 0300 . . . No status change regarding admit transfer status. . . . 0325 Finally!! Admit orders provided by Dr. Benitez by telephone. . . . 0331 Pt to be transferred to ICU WEST 3 . . . . 0325 HMO Primary Care provided Dr. Orlando Arana gave authorization for Dr. Benitez to admit patient to Homestead Hospital. 0410 . . . Pt will be physically transferred when bed has been cleaned. . . . . . . . 0530 Pt transferred to hospital bed for comfort. . . . Petitioner's Exhibit 2, Pages 76-77. Although W.L.'s orthopedic injuries, which required immediate care, remained untreated until the day after arriving at Homestead Hospital, Dr. Ovadia's last instruction concerning W.L. was that he was removed from W.L.'s care, that W.L. would be transferred to another facility, and that, if he wished to, he could resume care for W.L., an offer which Dr. Ovadia told Dr. Russell he declined. At no time was Dr. Ovadia informed that Dr. Russell had reversed his decision to transfer W.L. to another facility, even after declining to resume care or that Dr. Russell had not been able to arrange for W.L.'s transfer to another facility. It was not until the day after W.L. first arrived at the hospital that Dr. Ovadia learned that W.L. had not been transferred. Allegations of Wrongdoing Concerning W.L. In Count Three of the Administrative Complaint, it is alleged that Dr. Ovadia failed to follow the Standard of Care in treating W.L. in that: . . . . Respondent failed to come to the hospital on or about October 6, 1997 at approximately 12:30 a.m. to reassume care of Patient W.L. after the patient was cleared for surgery by the general surgeon. The Experts' Opinions; The Standard of Care Again, the same five physicians testified concerning the appropriate Standard of Care required in the treatment of W.L. As was the case with the physicians who testified about the Standard of Care for W.G. and F.S., the five physicians who testified about W.L. gave inconsistent testimony concerning the Standard of Care. More importantly, the opinions of the experts called by the Department were inconsistent, based upon facts not in evidence, or involved errors in treatment not alleged in the Administrative Complaint. Dr. Lancaster testified as follows concerning the appropriate Standard of Care and Dr. Ovadia's failure to meet it: Q Could you express your opinion as to this case. . . . A I have two opinions in regard to the case. The first is that Dr. Ovadia had a duty to the patient once he saw him to treat him orthopedically. And the only reason that he could be released from that is if there was a transferring orthopedic surgeon, which there wasn't. As such, his removal from the case would fall below the standard of care. In addition, being an on-call orthopedic surgeon and being requested to come to the hospital to take care of an orthopedic problem and not doing so would, likewise, fall below the standard of care. Petitioner's Exhibit 1, Page 4, Lines 13-25 and Page 5, Line 1-2. Dr. Lancaster also opined that it was a violation of the Standard of Care for Dr. Ovadia not to resume care of W.L. because he was "an on-call physician, who [was] required to take care of any orthopedic problems at the hospital if so requested by the emergency department." Petitioner's Exhibit 1, Page 5, Lines 24-25, and Page 6, Lines 1-2. Finally, Dr. Lancaster opined that Dr. Ovadia failed to meet the Standard of Care because he failed to follow-up on the passing of the care of W.L. to either another hospital or to another physician, an opinion shared by Dr. Cook. Dr. Cook opined as follows concerning the treatment of W.L.: Q What would a reasonably prudent physician under the same circumstances talking about orthopedics in this circumstance, do in that situation; in light of the knowledge of the facts of this case? A It would be my opinion that when you are called the second time at home and the conversation just is somewhat that, gee, we don't have anybody else to take care of this orthopedic problem. It is because it's in the middle of the night or because the guy doesn't have any money, or because it's too complex for somebody else to handle. Then, I think the reasonably prudent physician assistant is trying to find someone else to care for the patient, and failing that I think the ball is still in your court, it's still on your shoulders. Whatever metaphor you want to use, you need to come in and take care of the situation. Albeit, even to say to the patient, look I know this seems very confusing what's going on here tonight, but the gist of the matter is that this injury needs to be cared for immediately, I'm going to take care of that for you and then tomorrow you're going [to] meet Dr. XYZ and he or she is going to care for you the rest of the time. Or you pick up the telephone and you make the telephone calls and you find somebody or you assist in the transfer. (Emphasis added). Transcript, Volume 1, Page 115, Lines 3-25, and Page 116, Lines 1-4. While the foregoing opinion supports the charges of the Administrative Complaint, Dr. Cook goes on to testify on cross examination as follows: My opinion is, and my problem with the case is, who was looking out for the patient? There is no question that Dr. Ovadia had every reason to be upset with the way this case went initially. There was no question he was compromised by the acts of the chief of the staff or the chief of surgery, whatever the case may be, in both, in front of the rest of the staff members in the emergency room, in front of the patient, just in his own ability to take care of the patient. These is no question, I, as a physician, would have been upset by the whole event. And then to get called later that night and they say, oh, by the way, would you mind coming in and taking care of the mess I've made? But at some point in time when we assume the mantel of a physician, we have to assume that we are going to look out for the patient and put our own egos aside -- that may not be the right term here -- and that's what my problem is. Who was looking out for the patient? I don't expect Dr. Ovadia who was not taking care of the patient, but I do expect that he would have gotten on the phone and called his very best friends and said, hey, I got a heck of a problem. I do expect that he could have called another hospital and said the same thing himself, not relying upon the hospital administrator or did not rely on the chief of staff, who has already shown what a problem he was rather than a solution. That's the way I come down. I know there is not textbook that's going to back that up, it's the way I come down to. (Emphasis added). Transcript, Volume 1, Page 166, Lines 7-25, and Page 167, Lines 1-12. Dr. Cook also testified about a number of actions that Dr. Ovadia could have taken. See, e.g., Transcript, Volume 1, Page 117, Lines 1-25. The actions which Dr. Cook testified Dr. Ovadia could have taken were not, however, actions alleged in the Administrative Complaint and, therefore, are not relevant to this matter. The first of Dr. Lancaster's two opinions, quoted in Finding of Fact 75, supra, that Dr. Ovadia was never appropriately removed from caring for W.L., is rejected because it is inconsistent with the opinion offered by Dr. Cook and is not an act for which Dr. Ovadia has been charged in the Administrative Complaint. The second of Dr. Lancaster's two opinions, also quoted in Finding of Fact 75, supra, is rejected because Dr. Lancaster's understanding of the facts was inconsistent with the evidence presented at hearing. Dr. Lancaster testified that it was his understanding that Dr. Ovadia was contacted after he left the hospital and informed that W.L. had been cleared for surgery and, therefore, Dr. Ovadia was being requested to return. The evidence failed to prove that Dr. Ovadia had been relieved temporarily until W.L. was cleared for surgery or that Dr. Ovadia was "requested" to return; rather, Dr. Ovadia was "offered" an opportunity to return. More importantly, Dr. Lancaster's opinion, given its most generous interpretation, is not supported by Dr. Cook's opinion. Dr. Cook, while initially testifying that Dr. Ovadia failed to meet the Standard of Care because he did not come to the hospital and "take care of the situation" (Finding of Fact 78) later testified that Dr. Ovadia failed to meet the Standard of Care because he failed to arrange for W.L.'s care, an action which did require Dr. Ovadia to come to the hospital (Finding of Fact 79). Therefore, to the extent that Dr. Lancaster opined that Dr. Ovadia should have come to the hospital, Dr. Cook ultimately retreated from such an opinion. As to the opinion of Drs. Lancaster and Cook that Dr. Ovadia failed to meet the Standard of Care by failing to ensure that another hospital or, more particularly, another orthopedic surgeon, had assumed responsibility for W.L.'s care, while their opinions were consistent and credible, their opinions relate to an error in treatment not alleged in the Administrative Complaint. This opinion cannot, therefore, support a finding that Dr. Ovadia failed to meet the Standard of Care in his treatment of W.L. in this proceeding. Finally, Dr. Lancaster's opinion that Dr. Ovadia failed to meet the Standard of Care because he did not resume care of W.L. even though he was "an on-call physician, who [was] required to take care of any orthopedic problems at the hospital . . . " must be rejected for two reasons: first, this opinion was not supported by Dr. Cook's opinions; and, secondly, and more importantly, this alleged error in treatment is not alleged in the Administrative Complaint Based upon the foregoing, it is concluded that the evidence failed to prove that Dr. Ovadia failed to meet the Standard of Care because he "failed come to the hospital on or about October 6, 1997 at approximately 12:30 a.m. to reassume care of Patient W.L. after the patient was cleared for surgery by the general surgeon." Conclusion. The weight of the evidence in this case proved that Dr. Ovadia violated the Standard of Care as alleged in subparagraph 21.a. of Count Two of the Administrative Complaint. The evidence failed to prove clearly and convincingly that Dr. Ovadia violated the Standard of Care as alleged in Count One, subparagraph 21.b. of Count Two, or Count Three of the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine finding that Joseph Ovadia, M.D., has violated Section 458.331(1)(t), Florida Statutes, as alleged in subparagraph 21.a. of Count Two of the Administrative Complaint; dismissing Count One, subparagraph 21.b. of Count Two, and Count Three of the Administrative Complaint; issuing a Reprimand to Dr. Ovadia; requiring the payment of a $5,000.00 administrative fine within a reasonable time after the Final Order is issued; placing Dr. Ovadia on probation for a period of two years; and requiring that Dr. Ovadia attend ethics courses relating to the practice of medicine as directed by the Board of Medicine. DONE AND ENTERED this 10th day of March, 2003, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 2003.
