The Issue The issue in this case is whether Kenneth D. Stahl, M.D. ("Dr. Stahl" or "Petitioner"), is entitled to an award of attorneys' fees and costs to be paid by the Department of Health, Board of Medicine ("Department" or "Respondent"), pursuant to section 57.105, Florida Statutes (2014).1/
Findings Of Fact Review of the record indicates that, at the time the Administrative Complaint was filed at DOAH, the following facts were known by Respondent, as later stated in the Findings of Fact of the Final Order of the underlying case: In February 2011, Patient C.C., a 52-year-old female, was admitted to Jackson Memorial Hospital ("JMH") with a diagnosis of perforated appendicitis. She also had a perirectal abscess. Her records indicate that she was treated with percutaneous drainage and a course of intravenous antibiotics. She was discharged on March 4, 2011. On June 22, 2011, Patient C.C. presented to the JMH Emergency Department complaining of 12 hours of abdominal pain in her right lower quadrant with associated nausea and vomiting. Shortly after her arrival, she described her pain to a nurse as "10" on a scale of one to ten. A computed tomography ("CT") scan of Patient C.C.'s abdomen was conducted. The CT report noted that the "the uterus is surgically absent," and "the ovaries are not identified." It noted that "the perirectal abscess that was drained previously is no longer visualized" and that the "appendix appears inflamed and dilated." No other inflamed organs were noted. The radiologist's impression was that the findings of the CT scan were consistent with non-perforated appendicitis. Patient C.C.'s pre-operative history listed a "total abdominal hysterectomy" on May 4, 2005. Patient C.C.'s prior surgeries and earlier infections had resulted in extensive scar tissue in her abdomen. Patient C.C. was scheduled for an emergency appendectomy and signed a "Consent to Operations or Procedures" form for performance of a laparoscopic appendectomy, possible open appendectomy, and other indicated procedures. Patient C.C. was taken to surgery at approximately 1:00 a.m. on June 23, 2011. Dr. Stahl was the attending physician, and notes indicate that he was present throughout the critical steps of the procedure. The Operative Report was dictated by Dr. Eddie Manning after the surgery and electronically signed by Dr. Stahl on June 23, 2011. The report documents the post-operative diagnosis as "acute on chronic appendicitis" and describes the dissected and removed organ as the appendix. Progress notes completed by the nursing staff record that, on June 23, 2011, at 8:00 a.m., Patient C.C. "denies pain" and that the laparoscopic incision is intact. Similar notes indicate that at 5:00 p.m. on June 23, 2011, Patient C.C. "tolerated well reg diet" and was waiting for approval for discharge. Patient C.C. was discharged on June 24, 2011, a little after noon, in stable condition. On June 24, 2011, the Surgical Pathology Report indicated that the specimen removed from Patient C.C. was not an appendix, but instead was an ovary and a portion of a fallopian tube. The report noted that inflammatory cells were seen. Surgery to remove an ovary is an oophorectomy and surgery to remove a fallopian tube is a salpingectomy. On Friday, June 24, 2011, Dr. Nicholas Namias, chief of the Division of Acute Care Surgery, Trauma, and Critical Care, was notified by the pathologist of the results of the pathology report, because Dr. Stahl had left on vacation. Dr. Namias arranged a meeting with Patient C.C. in the clinic the following Monday. At the meeting, Patient C.C. made statements to Dr. Namias regarding her then-existing physical condition, including that she was not in pain, was tolerating her diet, and had no complaints. Dr. Namias explained to Patient C.C. that her pain may have been caused by the inflamed ovary and fallopian tube or may have been caused by appendicitis that resolved medically, and she might have appendicitis again. He explained that her options were to undergo a second operation at that time and search for the appendix or wait and see if appendicitis recurred. He advised against the immediate surgery option because she was "asymptomatic." The Second Amended Administrative Complaint alleged that Dr. Stahl performed a wrong procedure when he performed an appendectomy which resulted in the removal of Patient C.C.'s ovary and a portion of her fallopian tube instead. The Final Order concluded that the evidence did not clearly show that the wrong procedure was performed. It concluded that it was more likely that exactly the right procedure was performed on Patient C.C. That is, it was likely that an oophorectomy and salpingectomy were the right procedures to remove the inflamed organs and address the abdominal pain that caused Patient C.C. to present at the JMH emergency room, but that the right procedure was initially denominated incorrectly as an "appendectomy," as a result of patient history and erroneous interpretation of the CT scan.
Findings Of Fact By letter dated May 1, 1989, HRS gave petitioner formal notice of a moratorium on new admissions to petitioner's intermediate care facility for the developmentally disabled, effective two days earlier. Thereafter, HRS terminated the moratorium. As far as the record shows, the moratorium had no effect on the facility's census. HRS never filed an administrative complaint or took other steps to institute proceedings to restrict, suspend or revoke petitioner's license, in accordance with section 120.60(7), Florida Statutes (1989), and has no intention of doing so.
Recommendation It is, accordingly, RECOMMENDED: That HRS enter an order rescinding the moratorium it imposed on new admissions to petitioner's facility, effective April 28, 1989. DONE and ENTERED this 12th day of February, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1990. COPIES FURNISHED: Thomas D. Watry, Esquire The Perkins House 118 North Gadsden Street Suite 101 Tallahassee, FL 32301 Michael O. Mathis, Esquire Senior Staff Attorney Office of Licensure and Certification 2727 Mahan Drive Tallahassee, FL 32308 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES FT. WALTON BEACH DEVELOPMENTAL CENTER, Petitioner, CASE NO.: 89-3741 vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent. /
The Issue The issue to be resolved in this proceeding concerns whether disciplinary action should be imposed against the licensure of Douglas R. Shanklin, M.D., the Respondent, for allegedly falsely testifying that he had not been issued a "Letter of Guidance", in violation of Section 458.331(1)(k), Florida Statutes.
Findings Of Fact At all times material hereto, the Respondent was a physician licensed in the State of Florida. He holds license number ME0009372. The Petitioner is an agency of the State of Florida charged with regulating the licensure status and related practice standards of physicians in Florida, including making investigations and bringing Administrative Complaints against those physicians, in their licensure status, believed to be departing from those practice standards. On January 8, 1993, the Respondent testified as a defense witness, by deposition, in a medical malpractice case. The case style was Faircloth v. Coastal Empire Pathology Services, P.C., et al. The trial occurred in Savannah, Georgia. During his deposition, the Respondent was asked three times, by opposing counsel, if he had ever been issued a Letter of Guidance by any state licensing agency. The Respondent stated three times that, indeed, he had not. In fact, on May 15, 1984, a Probable Cause Panel of the Board of Medical Examiners in Florida considered a complaint against the Respondent. The Probable Cause Panel made a determination that while probable cause existed to believe that the Respondent had violated the provisions of the Medical Practice Act, the complaint should be dismissed with a Letter of Guidance. The Board stated in its Order that: Probable cause exists to believe that subject has violated the provisions of the Medical Practice Act. In light of the circumstances presented, however, this case should be and the same is hereby dismissed with a letter of guidance to subject. Thereafter, an undated letter was sent to and received by the Respondent. See Petitioner's Exhibit 2 in evidence. The Closing Order was never mailed to, nor received, by the Respondent. The Respondent was unaware of the Closing Order until March of 1993, when the investigation in this case was commenced and at which time he was first supplied a copy of that Closing Order of the Board's Probable Cause Panel. The Petitioner's Exhibit 2 in evidence, the undated letter, is not entitled or otherwise delineated as a "Letter of Guidance" and at no place in the letter is the word "guide" or "guidance" used. Consequently, at the time the Respondent received the letter, which is Exhibit 2, he did not understand or perceive it to be a Letter of Guidance but, rather, understood it to be a letter of closing indicating that he had prevailed in the complaint case. On January 8, 1993, when the Respondent testified at the deposition referenced above, he did not have in mind, nor did he remember, the undated letter. On January 8, 1993, when he testified at that deposition that he had not been issued the Letter of Guidance, he believed he was answering those questions truthfully. He did not know or understand that he had been issued a Letter of Guidance. On January 8, 1993, when he testified at the deposition, he did not testify falsely, because he had not been given the Closing Order at the time that the undated letter (Exhibit 2) was received. He thus did not understand that undated letter to be a Letter of Guidance from the then Department of Professional Regulation. He was never served a copy of the actual Closing Order which might have explained the situation to him. Consequently, he had a genuine, good-faith belief that he had not been issued a Letter of Guidance. Because his belief was genuine and he had no specific intent to tell a false story in those particulars, he made no false or fraudulent representation and committed no deception in conjunction with his answers to those questions at his deposition.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence or record, the candor and credibility of the witnesses, it is RECOMMENDED that a Final Order be entered finding the Respondent not guilty of violating Section 458.331(1)(k), Florida Statutes, and that the Complaint be dismissed in its entirely. DONE AND ENTERED this 3rd day of May, 1995, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5903 Petitioner's Proposed Findings of Fact 1-3. Accepted. 4-6. Rejected, as not entirely in accord with the greater weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Respondent's Proposed Findings of Fact 1-11. Accepted. COPIES FURNISHED: Steven Rothenburg, Senior Attorney Agency for Health Care Administration 9125 Bay Plaza Boulevard Suite 210 Tampa, FL 33619 Larry G. Turner, Esquire Post Office Box 508 Gainesville, FL 32602 Dr. Marm Harris Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Tom Wallace, Assistant Director Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303
The Issue The issue in this case is whether Respondent, Andrew Logan, M.D., committed a violation of Section 458.331(1)(t), Florida Statutes, as alleged in an Administrative Complaint filed by Petitioner, the Department of Health, on April 30, 2003, 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, Andrew Logan, 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 0058658. Dr. Logan's last known business address is 8551 West Sunrise Boulevard, Suite 105, Plantation, Florida 33322. At the times material to this matter, Dr. Logan was certified in ophthalmology. He specializes in medical and surgical ophthalmology. Dr. Logan received a bachelor of arts degree in biology in 1982 from Brown University. He received his medical degree in 1986 from the University of California, San Francisco.2 Dr. Logan completed a residency in ophthalmology. Dr. Logan has practiced medicine in Florida since 1990. At the times relevant to this matter, Dr. Logan worked in a group practice in Plantation, Florida. Most of his practice consisted of an office practice, seeing patients. He also performed some laser and minor surgeries in the office. Approximately once a week, for half a day, he performed surgery out of the office at "three hospitals and surgical centers." Dr. Logan's license to practice medicine has not been previously disciplined. The Department's Administrative Complaint and Dr. Logan's Request for Hearing. On April 30, 2003, the Department filed an Administrative Complaint against Dr. Logan before the Board of Medicine (hereinafter referred to as the "Board"), alleging that his treatment of one patient, identified in the Administrative Complaint as C. S., 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. In particular, it is alleged in the Administrative Complaint that Dr. Logan violated the Standard of Care in "one or more of the following ways": Respondent failed to identify the correct patient for the implantation of the 23 diopter lens; Respondent failed to verify that the lens he implanted into Patient C.S. was the power of lens that he had previously ordered; Respondent implanted the wrong lens into the left eye of Patient C.S. The factual allegations of the Administrative Complaint, although stated differently, essentially allege that Dr. Logan operated on the wrong patient. Dr. Logan filed a request for a formal administrative hearing with the Department, which was filed by the Department with the Division of Administrative hearings. Treatment of Patient C.S. C.S., who was 70 years of age at the time of the incident involved in this matter, began seeing Dr. Logan for eye care in approximately February 1997. C.S. developed cataracts in both eyes, for which Dr. Logan diagnosed and suggested surgical treatment.3 Dr. Logan explained the procedure he believed necessary to remove C.S.'s cataracts to her and obtained her approval thereof. The procedure to be performed on C.S., known as phacoemulisification, consisted of making an very small incision in her eye, breaking up her natural, or intraocular, lens with ultrasound, irrigating the eye, and then suctioning out the destroyed lens and irrigation material. Once the intraocular lens is removed, it is replaced with an artificial lens, the power and model of which is selected by the physician. Dr. Logan determined that the lens needed to restore C.S.'s vision in her left eye after removal of her intraocular lens was a 15-diopter lens. The "diopter" of a lens relates to the corrective power of the lens. C.S. was scheduled for the planned cataract surgery on her left eye at the Surgery Center of Coral Springs (hereinafter referred to as the "Surgery Center") for the morning of September 5, 2000.4 C.S. was one of at least two patients scheduled for surgery by Dr. Logan that morning. The Surgery Center is a free-standing center where various types of surgery are performed. Dr. Logan was not an owner or employee of the Surgery Center. He did not hire, nor could her fire, any employee of the Surgery Center, and none of the equipment utilized in the Surgery Center was owned by him.5 Consistent with established procedures, the Surgery Center was faxed information concerning C.S.'s scheduled surgery. In particular, the facsimile identified C.S. by name, which eye was to be operated on (her left eye), and the power (15-diopter) and model number of the replacement lens Dr. Logan had determined was necessary to restore C.S.'s vision after the surgery. The day before C.S.'s scheduled surgery, Dr. Logan was provided with C.S.'s patient records and the records of the other patient scheduled for surgery on September 5, 2000. He reviewed those records either that afternoon or that night. He also took the records with him to the Surgery Center where he reviewed them again. On or around the morning of September 5, 2000, the Surgery Center's nurse manager took the facsimiles that had previously been sent to the Surgery Center by Dr. Logan's office and retrieved the lens for each patient scheduled for surgery that day. When the nurse manager retrieved the lens, she was expected to ensure that the ordered lens, both as to power and model, were available, and that they were within their expiration date. She then bundled the lens and the facsimile. Three lens per patient were routinely retrieved. The bundles were then placed on a table in the operating room in the order they were supposed to be used. The order of surgery for September 5, 2000, had been prearranged and that information was available on a list prepared by the Surgery Center to all of those involved in the surgery that morning, including Dr. Logan and his surgery team. C.S. had been scheduled to be the second patient seen that morning. When C.S. arrived at the Surgery Center she was eventually taken to a pre-operation room (hereinafter referred to as "pre-op") to be readied for surgery. The patient who had been scheduled for the first surgery of the morning (hereinafter referred to as the "First Scheduled Patient"), had been late arriving on September 5, 2000. C.S. had come early. Therefore, C.S. was taken to pre-op in place of the First Scheduled Patient. What exactly transpired after C.S. was taken to pre-op was not explained. The nurse manager, who had overall responsibility for getting patients ready for surgery did not testify during this proceeding and the circulating nurse, Ann Tuza, was unable to recall what took place in any detail. What was proved is that Dr. Logan was not informed of the switch and the records and lens, which had been placed in the order of the scheduled surgeries for that day, were not changed to reflect that C.S. would be taken to surgery in place of the First Scheduled Patient. Therefore, although C.S. was the first patient into surgery, the records and lenses of the First Scheduled Patient were not replaced with C.S.'s records or lens. As was his practice, before going into the operating room, Dr. Logan went to pre-op to administer a local anesthesia. Dr. Logan, who had not been informed that the second scheduled patient, C.S., had been substituted for the First Scheduled Patient, administered the anesthesia to C.S. Dr. Logan found C.S. asleep. Dr. Logan did not recognize C.S. and he did not speak to her, as would have been his practice had she been awake, or otherwise identify her. Dr. Logan injected a local anesthesia by needle under and behind C.S.'s left eye,6 a procedure referred to as a "block" or "retrobulbar block."7 After the block had time to take effect, which normally took approximately five to ten minutes, Nurse Tuza went to retrieve C.S. from pre-op and bring her to the operating room. C.S. was brought into the operating room by Nurse Tuza and prepared for surgery. She was covered completely except for her feet and her left eye, which had an "X" placed over it to identify the eye to be operated on. Nurse Tuza remained in the operating room, along with a scrub technician, who assisted Dr. Logan, and a nurse anesthetist. None of these individuals apparently checked to ensure that they were correct in their assumption that the patient was the First Scheduled Patient. Dr. Logan, who did not recall what he did between seeing C.S. in pre-op and arriving at the operating room, completed scrubbing and entered the operating room where C.S. awaited. He had placed his charts in the operating room. His routine after arriving in the operating room was to go to the head of the patient and adjust a microscope used during the surgery. It is inferred that he did so on the morning of September 5, 2000. Although C.S. was awake when she was taken into the operating room and during the surgery, no one, including Dr. Logan, asked her her name. Nor did anyone, including Dr. Logan, check to see if she was wearing a wrist-band which identified her. Instead everyone, including Dr. Logan, assumed that they were operating on the First Scheduled Patient. Not actually knowing who he was operating on,8 Dr. Logan performed the surgery scheduled for the First Scheduled Patient on C.S. Although the procedure her performed on C.S., fortunately, was the same one scheduled for C.S., the diopter of the replacement lens was not.9 The First Scheduled Patient was to receive a 23-diopter lens, rather than C.S.'s 15- diopter lens. Dr. Logan placed the 23-diopter lens in C.S.'s eye, completed the procedure, and C.S. was taken to recovery. When Nurse Tuza went to get the next patient for surgery, who she expected to be C.S., she discovered for the first time that C.S. had been substituted for the First Scheduled Patient. She immediately informed Dr. Logan of the error. Dr. Logan went to the recovery room and, after ensuring that C.S. was alert enough to comprehend what he was saying, informed C.S. of the error. She consented to Dr. Logan's suggestion the he take her back into the operating room, remove the 23-diopter lens, and replace it with the correct, 15-diopter lens, which he immediately did. The replacement procedure required no additional trip to the Surgery Center, anesthesia, or incisions. C.S. recovered from the procedures without problem or direct harm. She continued to see Dr. Logan as her eye care until a change in insurance prevented her from doing so. Standard of Care. There was little dispute that Dr. Logan "failed to identify the correct patient for the implantation of the 23 diopter lens"; "failed to verify that the lens he implanted into Patient C.S. was the power of lens that he had previously ordered [for her]"; and "implanted the wrong lens into the left eye of Patient C.S." These facts, which form the factual basis for the Department's allegation that Dr. Logan violated the Standard of Care, have been proved. Including Dr. Logan, five physicians gave opinions in this proceeding as to whether Dr. Logan's actions violated the Standard of Care: Drs. William Cobb, Harry Hamburger, Joel Kramer, and Lowell Sherris. The testimony of Drs. Cobb and Kramer, primarily, and, to a lesser degree, the testimony of the Dr. Logan and the other two physicians, support a finding that Dr. Logan's actions, as alleged in the Administrative Complaint, constitute a violation of the Standard of Care. The testimony of Drs. Cobb, Kramer, and Sherris, which was credible and persuasive, have been summarized in the Department's proposed recommended order, and will not, in light of recent changes in Section 456.073(5), Florida Statutes, be summarized in any detail here. All of the physicians who testified, including Dr. Logan, agreed that a physician must know on whom he or she is operating and that operating on the wrong patient or inserting the wrong lens in a patient's eye is inappropriate. Dr. Logan, with Dr. Hamburger's support, attempted to prove that Dr. Logan did not violate the Standard of Care, despite the fact that he "failed to identify the correct patient for the implantation of the 23 diopter lens"; "failed to verify that the lens he implanted into Patient C.S. was the power of lens that he had previously ordered [for her]"; and "implanted the wrong lens into the left eye of Patient C.S.," by suggesting the following: It is reasonable and common practice in the South Florida community for a physician to rely on the staff of a surgical center to identify a patient prior to surgery and bring the patients [sic] back in the order originally anticipated. Dr. Logan had several safeguards in place to avoid the error that occurred in this case. The standard of care does not require that physician act as a supervisor who is responsible for every act of the healthcare provided team. This incident occurred due to an error of the staff at the Surgical Center at Coral Springs. . . . . Respondent's Proposed Final [sic] Order, paragraph 78. The proposed findings quoted in paragraph 37 are based primarily on Dr. Hamburger's, and to a lesser extent, Dr. Logan's, assertion that the surgery was a team effort, that the team had established procedures to identify the patient, and that the team failed in this instance to properly identify the patient. This testimony, and the proposed findings quoted in paragraph 37 are rejected. Nothing in the procedures followed in this instance alleviated Dr. Logan's responsibility to ensure that he actually established for himself who he was about to perform surgery on, a task which would have taken little effort.
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 Andrew Logan, M.D., has violated Section 458.331(1)(t), Florida Statutes (2000), as alleged in the Administrative Complaint, requiring the payment of an administrative fine of $5,000.00, completion of four hours of continuing medical education in risk management, and attendance at a one hour lecture on wrong patient surgery and how to avoid it, and issuing Dr. Logan a letter of concern from the Board of Medicine. DONE AND ENTERED this 19th day of February, 2004, in Tallahassee, Leon County, Florida. S 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 19th day of February, 2004.
Conclusions CONSTANTINOS N. SOLDATOS, D.M.D., hereinafter referred to as "Respondent", and the DEPARTMENT OF HEALTH, BOARD OF DENTISTRY, hereinafter referred to as the “Department”, hereby agree to present this Stipulation to the Board of Dentisuy. hereinafter referred to as “Board”, for their consideration and approval. U D Facts 1. For ali times pertinent herein, Respondent was a licensed in the State of Florida. having been issued license number DN 0013314. 2. Respondent was charged by Administrative Complaint (as amended) filed by the Department and properly served upon Respondent with a violation $466. 028(1)(c), Florida Stamnes. A ue and correct copy of the Amended Administrative Complaint is atrached hereto and made a part hereof by reference as Exhibit A : . . 3. . Respondent admits the matters of fact alleged is in the Administrative Complaizt attached S| Aether emma i Deparment ote 003845 f INCLU SOF LAW +. Respondent, in his capacity as a licensed dentist admits that in such capacity he is subject to the provisions of Chapters 466 and 455, Florida Stannes, and the jurisdiction of the Department and the Board. —— | 5. Respondent admits thar the allegations of fact set forth in the Amended Administrative Complaint constitute violations of Chapter 466. Florida Stanutes, and/or the rules enacted Pursuant thereto. STIPULATED DISPOSITION 6. The Respondent Shall pay as administrative costs the sum of three thousand dollars ($3,000.00), which amount shail be paid by Respondent to the Executive Director of the Board of Dentistry within sixty days of the entry of a Final Order accepting this Stipulation. 7. Respondent shall receive a reprimand in this matter. 8. Respondent shall complete twenty-five (25) hours of continuing education in areas to be determined by the Board in addition to those required for license renewal. Upon completion of said continuing education hours the Respondent shall be responsible for i insuring that the provider submit verification of completeness of the courses to the Board of Dentistry. 9. Respondent shall be placed on one year of probation, dating from entry of a Final ; Order accepting this Stipulation, during which time he shall abide by all terms and conditidns of this stipulation. ; Respondent may apply tothe Board for carly termination of his Probation upon completion of the | monetary and continuing education provisions of this Stipulation. 10. itis expressly understood that this Stipulation is subject to approval of the Secretary 2 003846 for the Department of Health and ultimately the Board of Dentistry and has no force and effect unless an order adopting it is entered by the Board. Il, Respondent agrees to be present ar the time of the Board's consideration of this Stipulation, and shall, under oath, answer any questions posed by Board members. counsel for the Board and counsel for the Department. 12. Tt is expressly understood tha a violation ofthe terms of this Stipulation shall be considered a violation of a Final Order of the Board of Dentistry, for which disciplinary action may be initiated pursuant to Chapter 466, Florida Stanes. 13. [tis expressly understood that this Stipulation is subject to approval of the Board and - Department and has no force or effect until an Order is based upon it bv the Board. 14. This Stipulation is executed by the Respondent for the purpose of avoiding further _ administrative action with respect to this particular case. In this regard. Respondent authorizes the Board to review and examine ail investigative file materials concerning Respondent prior to or in conjunction with consideration of the stipulation. Respondent agrees to support this stipulation at the time eit is S presented to the Board and shall offer no evidence. . testimony, or argument that disputes or contravenes any stipulated fact or conclusion of law. Furthermore, should this Stipulation not be accemted by the Board, it is agreed that the presentation and consideration of ; tis Splat nd other docunens and mates by the Boar stall not unfairly or illegally “prejudice th the Board of any of its members from. further participation, consideration or resolution of these proceedings. Furthermore, in the event that the Board fails to approve this joint Stipulation and a | Proceeding pursuant to Section 120.57, Florida Stanutes, is held, the Stipulation may not be 3 003847 introduced into evidence. Should the hearing result in a finding that Respondent is guilty of the alleged charges, Respondent hereby waives any defense to entry of a Final Order by the Board based upon the Board's consideration of this Stipulation. 15. The Respondent and the Department fully understand that this Stipulation and subsequent Final Order incorporating same will in no way preclude additional proceedings by the Board and/or Department against the Respondent for acts or omissions not specifically set forth in the Amended Administrative Complaint, attached hereto as Exhibit A, issued in this cause. 16. The Respondent waives the right to seek attorney’s fees and/or costs from the Department or Agency in connection with this disciplinary proceeding. 17. Upon the Board's adoption of this Stipulation, Respondent and Department expressly | waive all further procedural steps, and expressly waive all rights to seek judicial review of or to - otherwise challenge or contest the validity of the joint Stipulation of Facts, Conclusions of Law and imposition of discipline, and the Final Order of the Board incorporating said Stipulation. SIGNED this _[“7_ day of CONSTANTINOS N. SOLDATOS, D.M.D. Swom to and subscribed before r me « this 7 day of in _. 2006. 7 PS me, LYNN S. LEEDHAM 4, MY COMMISSION # CC 751572 ores EXPIRES: 0405/2001 1-900-3-NOTARY Fla Notary Services & Bonding Co. STATE OF FLORIDA _ DEPARTMENT OF HEALTH © DEPARTMENTOF HEALTH, "PETITIONER, vs. . | CASE NUMBER: 94-02880 CONSTANTIONSN. SOLDATOS, D.MD.. RESPONDENT. “ : “7 AMENDED ADMINISTRATIVE COMPLAINT COMES NOW, the Petitioner, Department of Health, hereinafter referred to as “Petitioner”, and files this Administrative Complaint before the Board of Dentistry against CONSTANTIONS N. SOLDATOS, D.M.D., hereinafter referred to as "Respondent"; and alleges: 1. Effective July 1, 1997, Petitioner is the state agency charged with the regulating the practice of dentistry pursuant to Section 20.43, Florida Statutes (Supp. 1996); Chapter 455, Florida, Starutes; and Chapter 466, Florida Statutes. Pursuant to the authority of Section 20.43 @) @, Florida Statutes, the Petitioner has contracted with the Agency of Health Care - Administration to provide consumer complaint, investigative, and prosecutorial services Tequired by the Division of Medical Quality Assurance, councils, or boards, as appropriate. . v ' vl 2. Respondent is, and has been i at all times material hereto, a licensed dentist in the State of Florida, having been issued license number DN 0013314. Respondent's Jast known address is 104 22" Street, Bell Air Beach, Florida 34625. 3. Between November 1993 and ‘December 1993, Medicaid was billed for more ** expensive dental treatment than the treatment provided by Mobile Dental Health to its patients. 003849 ‘2 BERR ON MEE LY ps 4. Between November 1993, and December 1993, the patient records of Mobile Dental” ” Health failed to substantiate the more expensive treatment billed to Medicaid. - S..A former employee and office manager of Mobile Dental Health has admitted to engaging in fraud by preparing paperwork for billing Medicaid for more expensive treatment when less expensive treatment had been rendered. 6. Commission Reports and Transaction Listings indicate that the Respondent received compensation as a result of these fraudulent billings. - , 7. On or about July 2, 1997, the Respondent entered a plea of nolo contendere to two (2) counts of conspiracy to commit Medicaid provider fraud. 8. On or about July 2, 1997, Respondent was placed on probation for twelve (12) months and ordered to reimburse Leon County five thousand dollars ($5,000) in ceurt costs. Respondent was also sentences to sixty (60) days in jail and three G) months of community control. COUNT I 9. Petitioner realleges and incorporated by reference the allegations contained in paragraphs one (1) through eight (8) as if fully stated herein. 10. Based on the foregoing, the Respondent’s license to practice dentistry in the State of Florida i is subject to discipline pursuant to Section 466.028 (1)(t), Florida Stamtes, for engaging in fraud, deceit, and misconduct in the practice of Dentistry. 003850 tT COUNT " 11. Petitioner realleges and incorporated by reference the allegations contained in paragraphs one a) through eight (8) as if fully stated herein. 12. Based on the foregoing, the Respondent’s license to practice dentistry in the Stae of Florida is subject to discipline pursuant to Section 466.028 (1)(c), Florida Stanites, for being convicted or found guilty of or entering a Plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which relates to the practice of dentistry. 003851 “d GEEB ON , WYCES€ [08D cptcuay Ce WHEREFORE, Petitioner respectfully requests the Board of Dentistry enter an order © 7” imposing one or more of the following penalties: revocation or suspension of the Respondent's license, restriction of the Respondent's practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, and/or any other relief that the Board deems appropriate. SIGNED this | N | aay of FILED DEPARTMENT OF HEALTH DEPUTY CLERK CLERK MA. Come : cy M.*Snurkowski “J Chief Anorney 1998. - Douglas M. Cook, * Director Agency for Health Care - 8 _ Administration . ~ Gi) ONS : egory W. Files Staff Attorney Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 (904) 487-2225_ : PCP: F.G. & W.R. DATE: January 24, 1998 003852 “¢ BESG'ON : WYDESR 19G2 “gQc4gy arene
Findings Of Fact On July 17, 1986, a Probable Cause Panel of the Board of Medicine met to review the investigative report which resulted from a complaint filed against Petitioner by the mother of a deceased patient. Prior to the meeting of the Probable Cause Panel, Robert N. Baskin, M.D., had reviewed Petitioner's office records, the medical examiner's report, the emergency room records and a letter from the patient's mother concerning Petitioner's care and treatment of that patient. Dr. Baskin had concluded that, if subsequently proven, the facts would constitute negligent or incompetent practice of medicine. The panel discussed the information which had been previously provided to it and determined that additional information was necessary before making a final determination of probable cause or no probable cause. The matter was returned to the Department of Professional Regulation for additional investigation. On September 25, 1986, a Probable Cause Panel of the Board of Medicine met to review the investigative report, including the supplemental report containing the additional information requested by the prior Probable Cause Panel. Based on the Investigative report which included Petitioner's office records, a summary of an interview with Petitioner, summaries of interviews with the patient's mother, a summary of an interview with and records of the medical examiner, and a summary of an interview with and the report of consultant Robert Baskin, M.D., the panel found that probable cause existed that Petitioner's activities had violated: Section 458.331(1)(t), Florida Statutes, by gross or repeated malpractice or by failing 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; Section 458.331(1)(i), Florida Statutes, now Section 458.331(1)(h), by making or filing a report which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so; and Section 458.331(1)(1), Florida Statutes, now Section 458.331(1)(k), by making deceptive, untrue, or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine. The Probable Cause Panel expressed concern regarding several aspects of Petitioner's treatment of the deceased patient. The panel noted its basis for a finding of probable cause in Count One, the malpractice count: Diabetic ketone acidosis was consistent with the patient's history, and there was "sort of a lack of attention paid about some of [the patient's] complaints"; and One of the two panel members opined that Petitioner "did misdiagnose the symptoms that this patient had", and described Petitioner's practice in this case as "a little sloppy". Further, the consultant's report questioned whether Petitioner recognized the seriousness of the patient's condition at the time of his examination of the patient. This question focused on whether Petitioner had recommended that the patient be hospitalized, but the patient's mother had refused to hospitalize her son. Counts Two and Three of the Administrative Complaint were based solely on whether Petitioner had recommended hospitalization as his records reflected or if, in fact, the mother's contrary version of what had happened was correct. One of the two panel members opined that "Somebody's lying." This was a credibility question to be determined. The Probable Cause Panel found that there was probable cause to believe that Petitioner may have falsified his records, if the Hearing Officer found that Petitioner was the one not telling the truth in this matter. Petitioner's records showed that an addendum was written, stating that Petitioner recommended that the patient be hospitalized. A memorandum to the medical records file by Registered Nurse Betty J. Launius, written after the patient died, explained why Petitioner did not immediately respond to telephone calls regarding the patient's condition. These documents lent some credibility to the possibility that they were done after the fact to protect Petitioner from subsequent litigation alleging malpractice in this case. The Probable Cause Panel recognized that the questions raised by the investigation should be answered or resolved one way or another at an evidentiary hearing. Petitioner disputed the allegations contained in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The case was referred to the Division of Administrative Hearings to conduct an evidentiary hearing and to issue a Recommended Order based upon the evidence presented. Division of Administrative Hearings Case No. 87-0276 was assigned. On July 16, 1987, DOAH Case No. 87-0276 was heard in Venice, Florida. A Recommended Order was issued on October 22, 1987, recommending that a Final Order be entered finding Respondent not guilty of the allegations contained within the Administrative Complaint and dismissing the Administrative Complaint filed against Petitioner. The Board of Medicine adopted the Recommended Order and dismissed the Administrative Complaint against Respondent on February 18, 1988. The parties have agreed that the costs and attorney's fees set forth in the Amended Petition for Attorney's Fees filed June 20, 1988 are the amounts in question in this proceeding. Petitioner is a "small business party" as that term is defined in Section 57.111(3)(d), Florida Statutes. The underlying administrative proceeding was initiated by the Respondent, a state agency. Petitioner was the prevailing party in the administrative proceeding material to this matter. There is no evidence that the transcript of the Probable Cause Panel meeting of July 17, 1986, was provided to or considered by the Probable Cause Panel which met on September 25, 1986. Petitioner incurred attorney's fees in the amount of $6,780.00 to defend himself in the underlying administrative proceeding and also incurred costs in the amount of $3,089.55. The amount of attorney's fees and costs are reasonable.
Findings Of Fact At all times relevant to this proceeding, Respondent has been licensed to practice optometry in Florida. Respondent's license was suspended for 60 days and placed on probation for one year beginning in 1979, after he pled guilty to charges of violating rules relating to competence in the practice of optometry and patient record maintenance. The charges in the instant proceeding arose from his treatment of Linda (age 13) and Judy Agnew (age 11), beginning in June, 1981. He prescribed corrective glasses for both girls. Their mother, Mrs. Jean Braybrooks, had Linda's prescription filled, but became immediately dissatisfied when Linda could not see properly with the glasses. Mrs. Braybrooks advised Respondent she was stopping payment on her check to him and took the children to another optometrist, Dr. Palmisano. She received new prescriptions for her daughters from Dr. Palmisano and her daughters have had no difficulty with these glasses. Mrs. Braybrooks subsequently filed a complaint in this matter and Petitioner's investigators sought to obtain patient records on Linda and Judy Agnew from Respondent. The investigators contacted Respondent in October and November, 1981, but were advised on both occasions that he had destroyed those records. Petitioner presented the testimony of Dr. John Walesby, who was qualified as an expert witness in the practice of optometry, including accepted standards of optometric care in the Tampa Bay area. Dr. Walesby examined the Agnew children in December, 1981, and determined that the prescriptions they received from Respondent were improper. Dr. Walesby determined that the prescription for Linda Agnew was at considerable variance with the correct prescription and was unacceptable by community optometric care standards. 1/ The prescription for Judy Agnew, while not miscalculated, did not allow for the child's ability to adapt to the prescription. Again, this treatment failed to conform to accepted community standards. Apparently one of the prescriptions at issue was signed by an unlicensed employee of Respondent in his behalf. It was not established that this was done outside Respondent's supervision or that it was improper.
Recommendation In consideration of the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty of the charges contained in the Administrative Complaint to the extent set forth herein and revoking his license to practice optometry in Florida. DONE and ENTERED this 22nd day of April, 1983, in Tallahassee, Florida. R. T. CARPENTER, 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 22nd day of April, 1983.
Findings Of Fact At all times, material hereto, Respondent Antonio J. Maniglia, M. D., has been licensed as a medical doctor under the laws of the State of Florida. Respondent graduated from medical school in Brazil in December, 1962. He came to the United States in 1963, and has practiced from then until the present date. He was licensed as a medical doctor by the State of Florida in 1971. On or about February 11, 1976, Maury Braga appeared at Respondent's office requesting to see him. Respondent had never before met Braga and had never heard of him. Braga brought with him a letter of introduction from a processor in Brazil whom Respondent knew. Braga advised Respondent that, he was a medical doctor from Brazil, that he had attended and graduated from the Faculdade de Ciencias Medicas de Santos, Brazil, that he had practiced the profession of medicine in Brazil during the years of 1967 through 1972, that he was in the process of, obtaining his medical license in Florida, and that to complete his Florida medical application he needed statements from local doctors acknowledging that Braga was a Brazilian medical doctor. Braga showed to Respondent documentation concerning his education and practice, including his medical diploma. Based upon his interview of Braga and his examination of Braga's documents, Respondent signed a form utilized by Petitioner, which form is entitled "Affidavit" and which reads, in pertinent part, as follows: - I, Antonio J. Maniglia, M. D., F.A.C.S., of 1776 NW 10th Ave, Miami, Florida 33136, do hereby swear and affirm by my personal knowledge, that Maury Braga attended and graduated from Faculdade de Ciencias Medicas de Santos and did lawfully prac- tice the profession of medicine, in Brazil during the years of 1967 through 1972, and that I also practiced the same, profession in Brazil. When Respondent signed the "affidavit," it was not notarized. Respondent had no personal knowledge regarding whether Braga had ever attended or graduated from medical school or regarding whether Braga had ever practiced medicine in Brazil. Respondent relied totally on the information contained in the documents, Braga showed to him and upon what Braga told him. After Braga left Respondent's office, he had the "affidavit" signed by Respondent notarized. He attached the "affidavit" to an Application for Examination and Course in Continuing Medical Education, which application he then submitted to the Florida Board of Medical Examiners. "On February 26, 1976, the same day that Braga's application was received, the Executive Director of the Board of Medical Examiners wrote to Braga advising him that his application was received after the deadline of January 26, 1976, and was therefore rejected. The application was not returned to Braga, but rather was placed in a file opened under Braga's name to be retained in the event that Braga again applied within the next three years to take the course in continuing medical education and the examination for licensure. On January 17, 1977, Braga filed a second application to take the course in continuing medical education which would then qualify him to take the examination for licensure. The second application included "affidavits" from medical doctors other than Respondent. One of Braga's two applications was approved; Braga completed the course in continuing medical education; Braga took and passed the examination for licensure; and Braga was licensed as a medical doctor in the State of Florida on March 10, 1978. Maury Braga did not attend or graduate from the Faculdade de Ciencias Medicas de Santos, and did not lawfully practice the profession of medicine in Brazil during the years 1967 through 1972. Braga's license to practice medicine in the State of Florida has been revoked. At least prior to the revocation of his license, Braga's file with the Petitioner contained both the application he filed in 1976 and the application he filed in 1977 No evidence was introduced to show which application was reviewed when Braga's application to take the educational course and examination for licensure was approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the violation charged in Count Two of the Administrative Complaint, dismissing Counts One, Three and Four of the Administrative Complaint, and placing Respondent's license on probation for a period of one year, subject to terms and conditions set forth by the Board. DONE and RECOMMENDED this 17th day of February, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 17th day of February, 1983. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jack E. Thompson, Esquire Ingraham Building, Suite 516 25 SE Second Avenue Miami, Florida 33131 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy J. Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
