The Issue The issues in this case are whether Respondent committed the allegations contained in the Administrative Complaint and, if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner Department of Health has regulatory jurisdiction over licensed osteopathic physicians such as Respondent. In particular, Petitioner is authorized to file and prosecute an administrative complaint, as it has done in this instance, when a panel of the Board of Osteopathic Medicine has found probable cause to suspect that the licensee has committed one or more disciplinable offenses. At all times material to this proceeding, Respondent was licensed to practice osteopathic medicine in the State of Florida, having been issued license number OS 10658. Background On February 3, 2012, T.S., a 26-year-old single mother, presented to Respondent's medical office as a new obstetrical patient. At that time, T.S. was carrying her third child. For the next five months, T.S. and Respondent enjoyed what was, by all appearances, a productive and appropriate physician-patient relationship. However, as discussed below, Respondent would transgress the bounds of that relationship during an office visit on the evening of July 11, 2012. First, though, it is necessary to sketch the relevant background. On the morning of July 11, 2012, T.S.——who was then nine months pregnant——appeared at Respondent's office for a routine examination. During the visit, T.S. advised Respondent that she was experiencing substantial cramping and discomfort. In response to these complaints, Respondent performed a pelvic examination and a sonogram, both of which yielded normal results. Later that day, at approximately 4:00 or 4:30 p.m., T.S. telephoned Respondent's office and informed his staff of a new symptom: namely, that significant pain was making it difficult to lift her right arm. Although a member of the staff advised T.S. that she could be seen immediately, logistical constraints made it impossible for her to report to Respondent's office prior to the close of business. Over the course of the next several hours, T.S. communicated with Respondent by phone and text (his cell number was available to all patients) concerning the new symptom and her preference to be seen that evening. Ultimately, Respondent informed T.S., via a text message sent at approximately 6:15 p.m., that she could meet him at his office for an examination. The Misconduct T.S. arrived at the office at 6:30 p.m., whereupon Respondent unlocked the front door and invited T.S. inside. Upon entering the lobby area, which was only partially illuminated, T.S. saw no sign of Respondent's office staff. At that point, Respondent asked T.S. to sign a form that read as follows: I give consent to be seen at Dr. Miller's office, by Dr. Miller, without an assistant present, at my request, in order to have a medically urgent need addressed. The foregoing document, although signed by T.S., is of dubious propriety, as obstetrical treatment without a chaperone present is rarely, if ever, appropriate.3/ This issue is of no moment, however, for most of what occurred next——as established by the credible testimony of T.S. and Petitioner's expert witness——was not a legitimate medical examination but, rather, nonconsensual sexual contact perpetrated under the guise of an examination. Upon the execution of the "consent" document, Respondent directed T.S. to an examination room and informed her that the likely cause of her arm pain was either a clogged milk duct or the positioning of the fetus. Respondent then requested that T.S. disrobe her upper body, at which point he left the room for a few moments. Upon his return, Respondent asked T.S. to recline on the examination table, purportedly so he could examine her right breast to rule out the possibility of a clogged duct. T.S. complied and, for the next 30 to 45 seconds, Respondent squeezed her breast in a manner quite dissimilar to examinations she had undergone in the past. In particular, T.S. thought it peculiar that Respondent "cupped" her entire breast with his hand——as opposed to examining the breast from the outside in with the pads of his fingers.4/ Even more troublingly, Respondent asked T.S., while his hand was still in contact with her breast, whether "it felt good."5/ After removing his hand from T.S.'s breast, Respondent remarked to T.S. that her arm pain was not the result of a clogged milk duct. Respondent further stated that her symptoms would be assuaged upon the baby's delivery, an event which, according to him, could be facilitated by sexual activity. Before proceeding further, it is important to note that T.S.'s symptoms of arm pain arguably warranted, at most, a legitimate breast examination. In other words, there were no symptoms or aspects of T.S.'s history that justified a pelvic examination at that time,6/ particularly since Respondent had performed such a procedure (along with a sonogram) earlier in the day. Nevertheless, Respondent informed T.S. that he "needed" to measure the dilation of her cervix; then, in a disturbing and conspicuous departure from accepted obstetrical practice,7/ Respondent applied lubricant to one of his ungloved hands. Moments later, Respondent inserted two fingers into T.S.'s vagina and, for the next 30 seconds or so, positioned his penetrating hand in such a manner that his thumb was in continuous contact with T.S.'s clitoris——something that would never occur during a proper examination.8/ Tellingly, this was not the only physical contact incongruous with a legitimate pelvic examination, for at one point Respondent used his free hand to pull on one of T.S.'s nipples.9/ By now suspicious of Respondent's conduct, T.S. attempted to maneuver her body toward the head of the examination table. As she did so, Respondent began to remove his fingers from T.S.'s vagina while stating that she "needed to have sex" in order to induce labor. This could be accomplished, Respondent further suggested, by having sex with him, an invitation T.S. sensibly declined.10/ On the heels of this rejection, Respondent told T.S. that the only other means of inducing labor would be to "strip her membranes." Owing perhaps to an urgent desire to give birth——the reader should recall that she was nine months pregnant and in significant discomfort——T.S. acceded to Respondent's suggestion. Respondent then penetrated T.S.'s vagina with his (ungloved) hand for a second time and, prior to the removal of his fingers, repeatedly implored T.S. to engage in sexual intercourse with him.11/ When T.S. refused and tried to move to the other end of the table, Respondent grabbed her by the hips and pulled his midsection into her exposed vaginal area. By virtue of this aggression, T.S. could feel that Respondent's penis, albeit clothed, was erect.12/ Wishing to extricate herself from this situation, T.S. pushed Respondent away, at which point he attempted to "laugh off" his abhorrent behavior. T.S. dressed herself and, a short time later, drove to the home of an acquaintance to seek advice. Later that evening, T.S. made a report of the incident to the appropriate authorities,13/ which ultimately resulted in the filing of the Complaint at issue in this proceeding. Ultimate Factual Determinations It is determined, as a matter of ultimate fact, that Respondent is guilty of violating section 459.015(1)(l), as charged in Count I of the Complaint. It is further determined, as a matter of ultimate fact, that Respondent is guilty of violating section 456.072(1)(v) and, in turn, section 459.015(1)(pp), as alleged in Count II of the complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Osteopathic Medicine finding Respondent guilty of Counts I and II of the Administrative Complaint; revoking Respondent's license to practice osteopathic medicine; and imposing a fine of $10,000.00. DONE AND ENTERED this 30th day of July, 2014, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2014.
The Issue Whether the Respondent committed the violations alleged in the administrative complaints; and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating the practice of medicine pursuant to Florida law. The Respondent is a licensed physician in the State of Florida having been issued license number ME 0043628. In September, 1987, J.B., a patient at Hialeah Hospital, underwent exploratory surgery and was diagnosed with terminal pancreatic cancer. At the time of the surgery, it was estimated that J.B. had six months to live. Dr. Roberto Cruz, J.B.'s doctor at Hialeah Hospital, recommended that the patient undergo chemotherapy; however, J.B.'s wife rejected that proposal. She did not want J.B. to know of the diagnosis. J.B. had told his family that if he had cancer, he would commit suicide. J.B.'s father and brother had had cancer, and the latter had committed suicide. J.B.'s wife and sister believed his threat to be sincere. Based upon the foregoing, J.B.'s wife implored J.B.'s doctors not to disclose his true condition. The families of J.B. and Respondent had been friends for many years going back to their common home in Central America. Respondent knew of J.B.'s diagnosis, and agreed to become his treating physician in November, 1987. Respondent did not tell J.B. of his true medical condition. Instead, Respondent let J.B. presume discomfort and other symptoms were the result of years of heavy drinking. In November, 1987, Respondent had been in private practice only a short time and was unfamiliar with office practices and billing procedures. Respondent did nothing to become familiar with billing practices, and relied on an employee who he mistakenly believed was competent to complete billing from the patient charts. When J.B. first presented at Respondent's office, he complained of abdominal pain. Further J.B. had discovered lumps which concerned him. To pacify J.B., Respondent suggested that a lymph node be removed and biopsied. J.B. and his wife discussed the removal of the lump and agreed that such removal would be appropriate. J.B. wanted to know that the lump was not cancer, and his wife wanted to know that the cancer had not spread or metastasized beyond the original sites. Respondent performed the lump removal in November, 1987, and billed J.B.'s medical insurance for same. At the time of this surgery Respondent was fully aware of J.B.'s medical condition, and knew that the procedure would not affect the medical condition, treatment, or life expectancy of the patient. The only medical result of the procedure was the uplifting of J.B.'s mental attitude since the lump was not cancer. In March, 1988, Respondent performed a colonoscopy with biopsy on J.B. This procedure was suggested as Respondent had presented with rectal bleeding, a symptom common in terminal cancer patients, and was desirous of some diagnosis as to the medical origin of the bleeding. Instead of advising J.B. that the bleeding could be consistent with the known medical condition, Respondent went ahead with the colonoscopy after less intrusive examinations did not establish the origin of the blood. At the time of the colonoscopy, Respondent knew that the procedure would not affect the medical condition, treatment, or life expectancy of the patient. Again, the only beneficial effect from the colonoscopy was an uplifting of J.B.'s mental attitude since the colonoscopy results, which were medically inconclusive, did not disclose cancer to J.B. Even if the colonoscopy had revealed some medical condition which could be treated, it would not have been medically necessary given J.B.'s other, overriding, condition. Anemia, a condition resulting from the loss of blood which is common in terminal cancer patients, could be treated without the colonoscopy procedure. Respondent did not refer J.B. to a psychiatrist for mental evaluation or confirmation as to the suicidal ideation but accepted J.B.'s wife's representations regarding his mental state. Respondent did not allege J.B. had expressed suicidal thoughts to him and did not report same in his medical notes. At all times material to the treatment of J.B., Respondent performed medical services through a company owned by his wife. This company, Sigma Medical Center, submitted bills for the services afforded J.B. on the standard billing forms known as "HCFA 1500." Respondent, as the treating physician, was required to sign all HCFA 1500 forms submitted regarding services for J.B. By executing the HCFA 1500 form Respondent certified that the information was correct and the procedures billed for were medically necessary and appropriate. In this case, Respondent has admitted that numerous billing errors occurred, that the HCFA 1500 forms were incorrect, and that an over-billing regarding services provided to J.B. resulted. For example, consultation visits are billed at a higher rate than regular office visits. Respondent routinely billed J.B.'s visits at the consultation rate even though there was no consultation to be given. Second, Respondent billed post-operative visits which should have been included in the surgical charges separately. Third, J.B. returned for office visits more frequently than would be expected because of the pain management Respondent employed. Because J.B.'s wife would not allow Respondent to prescribe any pain medications which J.B. might associate with cancer, he ended up taking quantities of other prescriptions to manage the pain and to return to Respondent frequently due to the unexplained (to him) reoccurrence of pain. Despite an admission that he reviewed the HCFA 1500 forms before signing them, Respondent maintains he did not, at the time, know that the billing was inaccurate. This assertion has not been deemed credible As to various tests ordered by Respondent for J.B., it is concluded that the following tests were medically unnecessary: the RPR test designed to detect syphilis infection (a STD was the least of this patient's worries), the FTA (a follow-up test to the RPR), and thyroid studies. Given the totality of the circumstances, Respondent's care and treatment of the patient, J.B., fell below the standard of care and skill which a reasonably prudent physician under similar circumstances and conditions would recognize as acceptable. As to DOAH case no. 94-0778 L.G. was an employee in Respondent's office. Unbeknown to Respondent, L.G. took samples of aerobid and proventil without a prescription for the drugs. An aerobid inhaler is used to control the symptoms of bronchial asthma. Proventil is also used to control bronchospasm which may be associated with asthma. L.G. took the samples with the intent that she would forward them to a relative in Cuba who suffers from asthma. L.G. had access to the samples. Respondent had never treated L.G. and there would have been no medical justification to dispense the samples to her. Although somewhat incredulous, Respondent's admission that he had dispensed the samples to L.G. was given, to his understanding, to end the investigation of the matter. He mistakenly believed that if he made the admission the matter would be closed. L.G.'s account as to the events of her removing the samples without Respondent's knowledge has been accepted. Nevertheless, the statement Respondent gave to the Department in connection with this incident was false.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Agency for Health Care Administration, Board of Medicine, enter a final order determining the Respondent violated Sections 458.331(1), (n) and (t), Florida Statutes, in the care provided to patient, J.B., suspending his license for a period of one year, placing him on probation for a period of two years thereafter, and imposing an administrative fine in the amount $10,000. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 24th day of December, 1996. JOYOUS D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 1996. APPENDIX Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1 through 17, 19 through 39, 42 through 46, 48 through 52, 54 through 65, 69, 70, and 74 are accepted. Paragraph 18 would be rejected as contrary to the weight of the credible evidence IF J.B. had been sincerely suicidal; however, in this case Respondent did not refer J.B. to a psychiatrist, did not make an independent confirmation of J.B.'s mental state, and did nothing to which J.B.'s wife did not agree--therefore, it is impossible under the facts of this case to know whether or not J.B. should have been told. Under most circumstances, J.B. should have been told, and it is accepted that the care afforded to J.B. fell below the standard of care a reasonably prudent similar physician would have provided. Respondent's whole theory of this matter fails because Respondent never independently confirmed and had J.B. properly assessed, by a physician competent to make such assessment, as to whether this major hoax was appropriate. With all due respect to Dr. Blaustein, he merely relied on factual conclusions which are unsupported by medical records in this case. Paragraphs 40 and 41 are rejected as irrelevant because the examination was medically unnecessary regardless of how performed. Paragraph 47 is rejected as contrary to the weight of the credible evidence; this procedure, like others, was medically unnecessary and below the standard of care but its primary purpose was to pacify the patient and his wife regarding the rectal bleeding. Had Respondent been forthright this procedure would not have been performed. The overbilling for the procedure was for financial exploitation of the patient's insurance. Paragraph 53 is rejected as irrelevant because the studies were medically unnecessary anyway. Paragraphs 66 through 68 are rejected as irrelevant since the diagnosis would have always been subservient to the primary diagnosis and Respondent's services in this regard were medically unnecessary. Paragraph 71 is rejected as contrary to the weight of the evidence. L.G. was not Respondent's patient. L.G. stole the drugs and Respondent covered for her with the misguided idea that it would solve the problem and the investigation would be over. Paragraphs 72, 73, 75, 77, and 78 are all rejected since L.G. was not a patient they are irrelevant or contrary to the weight of the credible evidence. Rulings on the proposed findings of fact submitted by the Respondent: 1. Paragraphs 1 through 6, 8, 10, 11, 12, 18, 19, 22, 23, 24, 31, 32, 38 through 48, 51, 55 through 64, 68 through 74, 77, 81, 82, 84, 85, 86, 89 through 92, 100, 107 through 120, 122, and 123 are accepted. Paragraph 7 is rejected as speculation or irrelevant given the overriding issues of this case; further rejected as not credible. Paragraph 9 is rejected in part as contrary to the weight of the credible evidence as to the issue of money; otherwise, as to the families' long- standing friendship accepted. The credible evidence in this case supports the conclusion that Respondent was overpaid for unnecessary services until J.B.'s insurance ran out; that he did not require payment thereafter is irrelevant. It may also have been Respondent's motive for overcharging the insurance before it ran out. Paragraphs 13 through 17 are rejected as irrelevant or contrary to the weight of credible evidence. Respondent was not authorized to delegate the medical decisions regarding J.B.'s care to his wife or family. As the physician he was responsible, regardless of how difficult the situation, to either practice within the standard the care or refer the patient to a physician able to do so. Obviously, any physician would want to keep J.B. comfortable, that is why unpleasant procedures such as the colonoscopic examination were, in part, medically unnecessary. Respondent's highest obligation was to the patient not that person's family or their perceived (and uncorroborated by Respondent) notions as to the patient's mental state. Paragraph 20 is rejected as irrelevant. Paragraph 21 is rejected as contrary to the weight of credible evidence. Paragraphs 25 through 30 are rejected as irrelevant or contrary to the weight of the credible evidence. Paragraph 33 is rejected as contrary to the weight of credible evidence. Paragraphs 34 through 37 are rejected as irrelevant or contrary to the weight of the credible evidence. Paragraphs 49, 50, 52, 53, and 54 are rejected as irrelevant or contrary to the weight of the credible evidence. The fact that J.B. was encouraged by the false or meaningless services performed by Respondent does not justify the performance or billing for same. Respondent could have listed a textbook full of conditions which J.B. did not have to encourage him but it would not have been based on medical reality any more than the colonoscopy was. Lying to a patient to make him fell better and for financial gain is not acceptable practice. Paragraphs 65, 66, and 67 are rejected as irrelevant or contrary to the weight of the credible evidence. Paragraphs 75, 76, 78, 79, and 80 are rejected as irrelevant or contrary to the weight of the credible evidence. 13. Paragraphs 83, 87, 88, 93, 94, 95, 96, 97, 98, 99, 101, 102, 103, 104, and 105 are rejected as irrelevant or contrary to the weight of the credible evidence. Respondent was responsible for all insurance billing for Sigma Medical Center. Paragraph 106 is rejected as contrary to the weight of the evidence as to whether or not L.G. was a patient at the time of the incident complained of, or irrelevant if stating such relationship was at a prior time. Paragraph 121 is rejected as irrelevant. Paragraph 124 is rejected as contrary to the weight of credible evidence. COPIES FURNISHED: Hugh R. Brown Senior Attorney Agency for Health Care Administration Office of the General Counsel Post Office Box 14229 Tallahassee, Florida 32317-4229 Harold M. Braxton, Esquire Suite 400, One Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156-7815 Dr. Marm Harris Executive Director Board of Medicine Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether respondent, a medical doctor, should have his license to practice medicine revoked or otherwise disciplined for alleged malpractice, unethical medical practices', and performance of services which he knew or should have known he was not competent to perform.
Findings Of Fact Respondent, George A. Chakmakis, M.D., is licensed by the Department to practice medicine in Florida. At all times material to this proceeding, he was engaged in the general practice of medicine at 123 Tampa Street, Auburndale, Florida., (P-6.) I. As to Count I Failure to Detect Clear Abnormality in Patient's Chest X-ray From 1974 to 1977, Mary Louise Wahl was respondent's patient. At various times, he treated her for rheumatoid arthritis, chronic bronchitis, and the flu. (P-8.) On .February 16, 1977, respondent had a chest x-ray taken of Ms. Wahl. In reading the x-ray film, he failed to detect or identify any abnormality in her lung. In a letter he subsequently wrote to another physician, respondent contended that, in February, 1977, her chest x-ray "was clear." (Testimony of Spanogle; P-5, P-8.) During the next eight months, Ms. Wahl suffered from chronic breathing problems. Respondent treated her for bronchitis and prescribed various antibiotics--none of which caused any noticeable improvement in her condition. Her last visit to respondent's office was on November 11, 1977. (P-8.) On December 15, 1977, Ms. Wahl was admitted to the emergency room of Winter Haven Hospital. She complained of progressive shortness of breath and coughing to Dr. Alan G. Gasner, the physician on duty. (P-8.) Dr. Gasner did a complete history, performed a physical examination and had a chest x-ray taken of Ms. Wahl. The x-ray revealed a massive left pleural effusion. He removed the fluid from the left side of her chest and conducted tests to determine the cause of the effusion. He concluded that she had a carcinoma of the lung, with metastic tumor as the cause of the left pleural effusion. She received chemotherapy and was discharged from the hospital 13 days later. (P-8.) On May 5, 1978, Ms. Wahl was readmitted to Winter Haven Hospital. Twelve days later, she died. The cause of death: metastatic carcinoma (or cancer) of the lung. (P-8.) The chest x-ray of Ms. Wahl, taken by respondent on February 16, 1977 clearly showed an abnormality in the upper left lobe of her lung. The abnormality, indicated by a white hazy area between the ribs, was obvious, not subtle: a physician who had completed medical training should have been able to recognize it. The white hazy area was present only on the left lobe, not the right. In examining lung x-rays, physicians are trained to compare the left side with the right side. Additional factors were present: Ms. Wahl was 63 years old and respondent was aware that she smoked cigarettes. Respondent's failure to detect such an obvious abnormality in the February 16, 1977, chest x- ray deviates from the standard of care, skill, and treatment recognized by reasonably prudent similar physicians as acceptable under similar circumstances. This standard of care, and respondent's deviation therefrom, was established at hearing by the expert testimony of five licensed physicians who practice medicine in the Auburndale-Winter Haven area. Respondent admitted, at hearing, that the February 16, 1977, chest x-ray shows an increased density in the left upper lobe of the lung. (Testimony of Chakmakis, Gasner, Libinski, Cottrell, Koon, Morgan; P-5.) The abnormality shown in the February 16, 1977, chest x-ray of Ms. Wahl, if detected, would have warranted further action by the treating physician, such as additional x-rays, including a lateral view, and tests. In light of Ms. Wahl's age and smoking habit, the February 16, 1977, x-ray would lead a prudent physician to suspect a malignancy or carcinoma. If it was a carcinoma, immediate action would have been necessary; it is possible that surgical intervention to remove the carcinoma could have been performed. (Testimony of Cottrell, Gasner, Lipinski, Koon, Morgan.) It cannot, however, be concluded that respondent's failure to detect the clear abnormality in Ms. Wahl's lung caused or contributed to her eventual death from carcinoma of the lung. No definite link has been established. There is no way of now knowing whether Ms. Wahl had a carcinoma or cancer in February, 1977. The abnormality shown in the x-ray could be consistent with these different primary diagnoses: cancer, tuberculosis, and pneumonia. (Tr. 50.) Failure to Provide Chest X-ray to Ms. Wahl's Subsequently Treating Physician When Ms. Wahl was admitted to Winter Haven Hospital in December, 1977, she explained to Dr. Gasner that she had been under the care and treatment of respondent. Dr. Gasner immediately asked respondent to forward her medical records so that he could determine the nature of her treatment. Respondent replied by letter dated December 21, 1977: he indicated that her last chest x- ray, taken February, 1977, was clear; that her last office visit was on November 11, 1977, when she was treated for bronchitis; and he enclosed copies of lab test results. On December 28, 1977, Dr. Gasner wrote respondent, explaining that he needed to have her prior chest x-ray films in order to plan a course of therapy for her. Dr. Gasner received no response from respondent. (P-8.) Respondent's failure to provide Dr. Gasner with the requested chest x- rays of Ms. Wahl is insufficient, in itself, to support a conclusion that respondent refused to supply such records. Respondent testified that he believed that the requested x-rays had been sent to Dr. Gasner; such testimony, although self-serving, was not refuted by the Department. It is concluded that respondent's failure to supply the x-rays requested by Dr. Gasner's December 28, 1977, letter was due to inadvertence, not willful refusal. (Testimony of Chakmakis.) Refusal to supply patient medical records requested by a subsequent treating physician constitutes a deviation from the accepted standard of care in the Auburndale-Winter Haven area. But, it has not been shown that the inadvertent failure to supply such records constitutes a deviation. (Testimony of Koon, Cottrell.) II. As to Count II Argola O'Neal was respondent's patient from November 8, 1978, through December 20, 1978. She went to him for treatment of kidney problems and recalls receiving two drug prescriptions from him. He also dispensed drugs to her in his office. (Testimony of O'Neal.) She has no complaints about the quality of the treatment she received. The medications respondent prescribed made her feel better. She stopped seeing respondent because her husband felt that respondent's prices were too high. (Testimony of O'Neal.) After leaving the care of respondent, Ms. O'Neal became a patient of Dr. William Cottrell. At Dr. Cottrell's request, she showed him the medications which had been prescribed by respondent. They included: Inderal, 40 milligram and 20 milligram tablets; Digoxin, .25 milligrams; Tofranil; Synthroid; Isomil; Dyazide; Serapes, 10 milligrams; Nitrostat; Lasix, 20 milligrams; Mylicon; Darvocet-N 100; Thyroid, 2-grain tablets; and Gaviscon. The Inderal prescriptions were duplicative, as were the drugs Synthroid and throid extract. If used improperly, they were potentially dangerous to the patient. (Testimony of Cottrell.) Ms. O'Neal, age 76, is a frail woman suffering from senility and hardening of the arteries. Her ability to accurately recall respondent's brief treatment of her--occurring three years prior to hearing--has been affected. For example, she did not recognize respondent until he introduced himself to her immediately before hearing. Her testimony conflicts with that of her husband, Fred O'Neal. He testified that she stopped seeing respondent because she was dissatisfied with his treatment. (Testimony of O'Neal, Cottrell.) Because Ms. O'Neal had medications prescribed by an earlier doctor, respondent was concerned about prescribing duplicate medications. He instructed her to stop taking duplicative diuretics, thyroid, and heart medications. Although Ms. O'Neal does not recall such instructions, respondent's recollection is persuasive. (Testimony of Chakmakis.) When Ms. O'Neal became Dr. Cottrell's patient, she expressed some confusion concerning the medications which she had received from respondent. Although Dr. Cottrell testified that, in his opinion, there was some redundancy in the medications prescribed by respondent, he consistently avoided concluding that the prescriptions were sufficiently excessive or inappropriate to constitute a deviation from the prevailing standard of medical care in the Auburndale-Winter Haven area. 2/ (Tr. 235-236.) In his treatment of Ms. O'Neal, Dr. Cottrell tried to simplify the medication instructions and make sure that her husband was fully aware of them. (Testimony of Cottrell.) III. As to Count III Ronald Sequino was respondent's patient from November 30, 1978, through December 11, 1978. On Friday, November 30, 1978, respondent surgically removed two cysts from Sequino's back. The agreed-upon price was $30. (Testimony of Sequino; P-2, P-6.) That evening, the cyst wounds began to open. Sequino, concerned about infection, telephoned respondent's office number Friday evening, Saturday, and Sunday. He obtained respondent's answering service which informed him that respondent was unavailable; he left a message for respondent to contact him. Respondent did not return Sequino's call. (Testimony of Sequino.) The next week, Sequino returned to respondent's office for treatment of the wound which, by then, was discharging pus. Sequino, disturbed by his inability to reach respondent during the weekend, asked respondent whether the answering service had contacted him; respondent replied that he had gotten the message from the answering service but "made light of it" by telling Sequino that he worried too much. (Testimony of Sequino.) During the weekend that Sequino tried unsuccessfully to reach him, respondent did not have another physician covering for him. Respondent's testimony to the contrary is rejected as selfserving and uncorroborated. Neither did respondent have hospital privileges. (Testimony of Davis, Sequino; P-6.) Sequino returned to respondent two more times for post-operative care. The healing of his cysts was aggravated because Sequino frequently got his back wet, contrary to respondent's instruction. Because of this, respondent charged Sequino an additional $12 for each follow-up visit. (Testimony of Davis.) Sequino was disturbed by what he perceived as respondent's lack of concern; he was also upset about being separately charged for each follow-up visit. He became angry, used threatening language toward respondent, and mumbled profanities on leaving the office. (Testimony of McGuire.) Respondent denies that he was unavailable or received an answering service message from Sequino during the weekend following the cyst removals. He denies that he made "light" of Sequino's concern about not being able to reach him. He asserts that if he was unavailable, he had another physician covering for him. These contentions are rejected as selfserving and lacking corroboration. Diane Davis, his former receptionist and clerk-secretary, testified that--to her knowledge--respondent had no physician cover for him when he was out of town; that, during the weekends when he was unavailable, he never referred a patient to another physician. (Testimony of Chakmakis, Davis.) By failing to provide continuing care to Sequino over the weekend, or making arrangements so that another physician would be available to provide such care, respondent deviated from the prevailing standard of medical care and treatment recognized by a reasonably prudent similar physician as acceptable under the circumstances. That standard of care requires that a physician be available to his patients or have a physician cover for him at all times. Similarly, contrary to the Principles of Medical Ethics, he neglected his patient after having undertaken to provide him medical care. Such a breach of medical ethics constitutes a deviation from the standard of medical care recognized by a prudent similar physician as acceptable under the circumstances. (Testimony of Morgan; P-7.) IV. As to Count IV Respondent admits having used the Bellew Vaccine Method for Treating Arthritis ("the Bellew Method"). He used it to treat the arthritis of Mary Wahl. The Bellew Method was developed by Bernard A. Bellew, M.D. Generally, it consists of regimen of intradermal and subcutaneous injections of commonly available influenza viral vaccines and respiratory bacterial vaccines. It purports to provide therapeutic or curative relief to arthritis. (Testimony of Chakmakis; P-1, P-8, P-16.) The Bellew Method is not widely known or used by the medical profession. Respondent does not know of another physician in the United States who uses it. (Testimony of Chakmakis; The Bellew Method is considered, at best, as an "unusual treatment" by other physicians the Auburndale-Winter Haven area. It is not accepted in that area, or elsewhere in the country, as an acceptable method for treating arthritis. It is so far removed from the accepted practice and method of treating arthritis that it cannot be considered to have even achieved experimental status. (Testimony of Cottrell; P-8.) Respondent's use of the Bellew Method to treat Ms. Wahl's arthritis deviated from the standard of care, skill, and treatment recognized by a reasonably prudent similar physician as acceptable under similar circumstances. (P-8.) No evidence was presented to show either that the Bellew Method has been proven effective or that it was harmful to Ms. Wahl. Neither was evidence presented to show that, before utilizing this method, respondent disclosed to Ms. Wahl that the Bellew Method had not been proven effective; that it was held in disfavor or not used by the mainstream of the medical community. No evidence was presented to show that Ms. Wahl gave her informed consent to such treatment after having been advised that, at best, it was considered to be unusual or unorthodox treatment by the medical community. V. Costs Incurred by Department in Obtaining Orders Compelling Discovery Respondent's failure to respond to discovery resulted in the Department filing numerous motions to compel. By orders dated July 15 and August 11, 1981, two such motions were granted and orders compelling discovery were issued. Respondent gave no excuse, or justification for his failure to respond to the Department's discovery. Accordingly, pursuant to Rules 1.380, Florida Rules of Civil Procedure, the Department was awarded reasonable expenses which it incurred in obtaining these orders. By stipulation, the Department's reasonable expenses were to be determined by affidavit of the Department's counsel submittal at final hearing. The affidavit indicates the Department incurred expenses in the amount of $419.16. (Affidavit of Expenses, dated August 13, 1981.)
Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Medical Examiners enter a final order suspending respondent's medical license for six (6) months, after which the suspension should be vacated upon: (1) a showing by respondent that he has satisfactorily completed an approved continuing education course on the proper administration, interpretation, and use of x-rays; and (2) respondent demonstrating, to the Board's satisfaction, that he recognizes the serious statutory, professional, and ethical obligations placed on a physician who administers experimental or unorthodox treatment to a patient. That the Board, as part of its final order, require respondent to pay $419.16 to the Department as reasonable expenses incurred in obtaining the orders compelling discovery dated July 15 and August 11, 19,81. DONE AND RECOMMENDED this 12th day of March, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1982.
The Issue The Administrative Complaint, dated January 22, 1987, alleges that Marvin Lowenhardt violated Section 461.013(1)(t), F.S., relating to gross or repeated malpractice or failure to practice podiatry at a level of care, skill and treatment recognized by a reasonably prudent podiatrist as being acceptable under similar conditions and circumstances. The complaint bases this allegation on the further allegation that Dr. Lowenhardt failed to take more than one X-ray of a patient, Herman Day, and failed to properly diagnose that patient's condition. The issue for determination is whether the violation occurred and, if so, what discipline is appropriate.
Findings Of Fact Marvin E. Lowenhardt is a licensed podiatrist with Florida license number PO 0000775. He has practiced in the State of Florida since 1982, and is currently located at 2087 Sarno Road, in Melbourne, Florida. Herman Day, visited Dr. Lowenhardt on April 30, 1986, with a complaint of swelling and pain in his right ankle. He told Dr. Lowenhardt that he had hit his heel on a dresser about 10 days prior to the visit. Dr. Lowenhardt did not observe any swelling. He took a single X-ray, lateral view of the ankle, and applied a compression bandage with an Unna boot, Gelo cast (a bandage impregnated with zinc oxide which hardens, but does not get rigid). He gave the patient a follow-up appointment on May 5th. Mr. Day appeared for the appointment, but left after a short while because no one was at the office and he had another appointment. The receptionist, who was new, had arrived late to the office to open it and called Mr. Day to apologize. He was irate and refused to make another appointment. On May 26, 1986, Herman Day visited his regular physician, John Viso, M.D., still complaining of trouble with his right ankle. He told Dr. Viso that he had twisted his ankle while strolling on the beach, and that he had been to see Dr. Lowenhardt. He also said he removed the cast himself after about six days. Dr. Viso diagnosed the condition as an old sprain, but he wanted to rule out an old fracture and referred Mr. Day to another physician with X-ray equipment. That physician, Briant Moyles, D.P.M., saw the patient on May 27, 1986. The complaint was pain and swelling in the right ankle due to a twisted foot six or seven weeks prior to the visit. Dr. Moyles found some swelling at a +2 level, which means clear swelling that dimples to the touch. He took five X- rays and concluded that there was a fracture obliquely through the malleolus (the large bump on the ankle) with no separation of the fragments (a "hairline" fracture). Dr. Moyles applied a compression bandage and told Mr. Day to limit his walking activity. Dr. Moyles could not tell when the fracture occurred and suggested that Mr. Day obtain the X-ray taken earlier by Dr. Lowenhardt. Mr. Day accomplished this, but the X-ray was of such poor quality it was impossible to tell whether or not the fracture existed at the time that Dr. Lowenhardt made his examination. Dr. Lowenhardt conceded to the investigator and at hearing that the X- ray was of poor quality. It is blurred and overexposed. The X-ray has deteriorated since it was originally taken, since it was not developed long enough. The view taken would not have revealed the type of injury suffered by Day. Dr. Lowenhardt also admitted to the investigator that he made a misdiagnosis. However, Dr. Lowenhardt claims that, given the patient's history of injury (hitting his heel), the X-ray was unnecessary. He never explained why the X-ray was taken, but after the investigation he apologized to Mr. Day for the mix up regarding the May 5th appointment and refunded all fees paid for his treatment. The history of injury given to Dr. Lowenhardt was somewhat different from that given to Drs. Viso and Moyles later: he hit his heel, rather than twisted his ankle. According to Dr. Lowenhardt and Dr. Moyles, a follow-up after the first visit was very important to the proper treatment of this patient. Dr. Lowenhardt was not informed of the circumstances of Mr. Day's missed appointment until well after the matter was referred to DPR. Dr. Lowenhardt insists that if he had seen Mr. Day again and had heard the continuing complaint and had seen the swelling, he, too, would have taken more X-rays and would likely have discovered the fracture. Dr. Lowenhardt's treatment still may have been the same, the compression bandage. This was Dr. Moyles' treatment, and is generally the treatment of older fractures. At ten days after an injury Dr. Moyles felt he would have had a choice as to whether to apply a rigid case or the compression bandage. Mr. Day did not testify at hearing and the only competent evidence of what he told Dr. Lowenhardt and what his foot looked like on April 30, 1986, is Dr. Lowenhardt's testimony and his office notes.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That the Administrative Complaint against Marvin E. Lowenhardt be dismissed. DONE and RECOMMENDED this 31st day of August, 1988, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0277 The following constitute my rulings on the parties proposed findings of fact: Petitioner's Proposed Findings Adopted in paragraph #1. Adopted in paragraph #2. Adopted in paragraph #3. 4-6. Adopted in paragraph #7. Adopted in paragraph #5. Adopted in paragraph #6. 9-10. Adopted in paragraph #7. Rejected as irrelevant. It was not established that the circumstances warranted X-rays. Rejected as unsupported by Competent evidence. Respondent's Proposed Findings Adopted in paragraph #1. Adopted in paragraphs #2 and 3, except that the medical history form reflects a complaint of ankle pain. 3-4. Adopted in paragraph #3. Adopted in paragraph #4. Adopted in paragraph #5. Adopted in paragraph #6. Adopted in paragraph #7. Adopted in paragraph #8. Addressed in background statement. COPIES FURNISHED: Robert D. Newell, Esquire Newell & Stahl, P. A. 817 North Gadsden Street Tallahassee, Florida 32303-6313 John A. Baldwin, Esquire Baldwin & Baum, P. A. 7100 South Highway 17-92 Fern Park, Florida 32730 Marcelle Flanagan Executive Director Board of Podiatric Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Lawrence A. Gonzales, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
