The Issue Whether Octavio J. Carreno, M.D. ("Respondent" or "Dr. Carreno"), is liable to the Agency for Health Care Administration ("AHCA," "Agency," or "Petitioner") for an overpayment in the amount of $121,641.42 for certain claims for services during the audit period of January 1, 2012, through December 31, 2014, that in whole or in part were not covered by Medicaid. Whether Respondent is liable to Petitioner for a sanction in the amount of $24,328.28 pursuant to Florida Administrative Code Rule 59G-9.070(7)(e). Whether Respondent is liable to Petitioner for Petitioner's incurred investigative, legal, and expert witness costs, which Petitioner contends it is entitled to recover pursuant to section 409.913(23)(a), Florida Statutes (2014).
Findings Of Fact Based on the evidence presented at the hearing, and the record as a whole, the undersigned makes the following findings of material and relevant facts: Agreed Facts in Parties' Amended Joint Prehearing Stipulation Petitioner is designated as the single state agency authorized to make payments for medical assistance and related services under Title XIX of the Social Security Act. This program of medical assistance is referred to as the "Medicaid program." See § 409.902, Fla. Stat.; JPS ¶ E12. Petitioner has the responsibility for overseeing and administering the Medicaid program for the state of Florida, pursuant to section 409.913. JPS ¶ E13. The Medicaid provider agreement is a voluntary contract between AHCA and Respondent. An enrolled Medicaid provider must comply fully with all state and federal laws pertaining to the Medicaid program, including Medicaid provider handbooks incorporated by reference into rule, as well as all federal, state, and local laws pertaining to licensure to receive payment from the Medicaid program. JPS ¶ E14. During the audit period, Respondent was an enrolled Medicaid provider and had a valid Medicaid provider agreement with AHCA, Medicaid Provider No. 002993600. JPS ¶ E2; Pet. Ex. 1. AHCA's Bureau of Medicaid Program Integrity ("MPI"), pursuant to its statutory authority, conducted an audit of Respondent for Medicaid claims it paid to him for medical services he provided to Medicaid recipients, occurring during the time period from January 1, 2012, through December 31, 2014. JPS ¶¶ E1 and E4. AHCA issued a FAR dated March 15, 2016, MPI Case ID No. 2015-0003243, alleging that Respondent was overpaid $139,250.66 for certain services that are not covered by Medicaid. In addition, the FAR informed Respondent that AHCA was seeking to impose a fine of $27,850.13 as a sanction for violation of rule 59G-9.070(7)(e) and seeking costs pursuant to section 409.913(23). The amounts of the overpayment and the sanction were revised, after the FAR was issued, to $121,641.42 and $24,328.28, respectively. JPS ¶ E5. The FAR, supported by the Agency work papers, constitutes evidence of the overpayment to Respondent pursuant to section 409.913(22). JPS ¶ E15. In the FAR section entitled "Findings," AHCA set forth the bases for the overpayment determinations. JPS ¶ E6. The claims which make up the overpayment alleged by AHCA were filed by and paid to Respondent prior to the initiation of this action. JPS ¶ E7. There is no dispute from Respondent as to the process of the statistical sampling or the statistical methods utilized to establish the validity of the overpayment calculation utilized by AHCA. JPS ¶ E16. Additional Facts Adduced at the Hearing Ms. Robi Olmstead, an administrator of the Practitioner Unit at AHCA, under the Offices of the Inspector General, MPI, testified regarding her experience and role in the audit of Respondent. MPI is required by federal and Florida law to investigate medical providers for fraud, abuse, or overpayments. Olmstead cited section 409.913 as the authority to investigate Medicaid providers, including Respondent. The instant case against Respondent was opened based on a referral from one of the investigators who noticed "a significant portion of Dr. Carreno's office visits" (evaluation and management or "E&M" codes) were billed at high levels. Olmstead also independently confirmed this in her review of the data. Olmstead opened the audit, set the coverage dates of the audit period, and assigned the matter to an AHCA investigator. The investigator obtained a list of claims for 40 random recipients from the Agency's cluster sample program. After the sample was obtained, Petitioner then requested the medical records of the sample recipients from Respondent. Pet. Ex. 2. Petitioner utilized the services of a peer consultant, Ellen D. Silkes, M.D. Dr. Silkes meets the requirements and qualifications of a "peer" as defined in section 409.9131. JPS ¶ E17. Dr. Silkes practices the same specialty or sub-specialty as Respondent and is licensed under the same chapter. Pet. Ex. 6, p. 147. Both Dr. Silkes and Dr. Carreno are otolaryngologists, commonly referred to as ear, nose, and throat ("ENT") doctors. The medical records received from Respondent were reviewed by the AHCA investigator and by an AHCA registered nurse consultant and then sent to the peer reviewer, Dr. Silkes, along with other relevant documents, including the worksheets generated by the claims sample process. When the medical records were returned to the Agency with the peer's comments, the Agency calculated the amount of the overpayments. The peer reviewer's role is to make determinations of medical necessity and levels of service. Decisions as to the lack of documentation are made by a combination of the peer reviewer and the Agency nurse consultant. After the agency and peer review were completed, a Preliminary Audit Report ("PAR")(Pet. Ex. 4) was sent to Respondent on December 14, 2015. After the receipt of the PAR, Respondent had the opportunity to submit additional medical records to the Agency for consideration. This was done by Respondent. The FAR (Pet. Ex. 5) was then issued on March 15, 2016. The FAR made multiple findings delineating the reasons for the overpayments, including improper "consult" claims, reductions for levels of service, insufficient or no documentation to support claims, improper claims for global procedures, errors in coding, and lack of medical necessity for certain procedures. Pet. Ex. 5, pp. 88-90. Subsequent to the FAR and prior to the final hearing, the review of additional information provided to the Agency by Respondent resulted in a reduction of the alleged overpayment to $121,641.42. JPS ¶ A; Pet. Ex. 19. Rule 59G-9.070(7)(e) addresses sanctions for failure to comply with the provisions of the Medicaid laws. For a first offense, there is a $1,000.00 fine per claim found to be in violation. AHCA initially found 86 violations. Pet. Ex. 6. After the state mandated cap of 20 percent was applied, the initial fine was set by the Agency at $27,850.13. Subsequently, based on the allowance of some claims submitted by Respondent with additional documents or clarification, the fine amount was reduced to $24,328.28. Pet. Ex. 19. The Agency considered all of the statutory factors when assessing the sanction. Olmstead considered the violations in this case to be "typical" and "nothing extraordinary" and did not enhance or reduce the sanctions. The Agency incurred costs in its investigation of this matter. However, costs have not yet been fully determined. Pet. Ex. 5, p. 150B. Based on Olmstead's experience, the audit was conducted in a routine and acceptable manner. Identification of the Disputed Claims Notably, in the JPS and again at hearing, the parties agreed that only the following "Disputed Claims" required factual findings and conclusions of law by the undersigned: Recipient #2 Claims 1, 2 and 3 Recipient #3 Claims 5, 11, 12, 13, 17, 18, 20, 21, 22, 24, 26, 28, 35 Recipient #25 Claim 11 Recipient #29 Claim 6 Recipient #30 Claims 1, 2, 4 None of the other audit determinations made by AHCA were challenged by Respondent at the hearing.1/ The parties agreed at the start of the hearing that the downward adjustments made by AHCA to Recipient #2, Claims 1 and 2, were agreed to and would not be disputed. The worksheets, as revised, now showed the peer's determination of those claims as properly payable at Current Procedural Terminology ("CPT") Code 99213. Pet. Ex. 19. Evaluation and Management Claims Many of the "Disputed Claims" are for E&M services, which are office visits, and specifically in this audit, office visits for established patients of Respondent. In order to properly code and bill the appropriate level of E&M services for an encounter with an established patient, the medical records must establish that two of the three key components (i.e., history, examination, and medical decision- making) meet or exceed the stated requirements of that level of service. In some cases, time spent with the patient is considered a key factor as well. Pet. Ex. 13, p. 271. For encounters with established patients, the CPT Code (2012) provides in pertinent part, as follows: 99212 - Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these three key components: A problem focused history;A problem focused examination;A problem focused examination. 99213 - Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these three key components: An expanded problem focused history;An expanded problem focused examination;Medical decision making of low complexity. 99214 - Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these three key components: A detailed history;A detailed examination;Medical decision making of moderate complexity. Pet. Ex. 13, p. 273. There was no evidence to suggest that the CPT codes for these procedures changed at any time during the audit period between 2012 and 2014. As a result, the CPT codes admitted were properly relied upon by the parties. Pet. Ex. 13. As mentioned, the key components of coding an E&M encounter are the examination, the history, and the medical decision-making required of the physician. Pet. Ex. 13. The CPT codes from 99211 to 99215 are also referenced as Levels 1 through 5 with the main difference being the complexity and extent of the visit and examination. Counseling and/or coordination of care with the patient and/or family can be a controlling factor in coding the proper level. However, the CPT code notes provide that the "extent of counseling and/or coordination of care must be documented in the medical record." Pet. Ex. 13, p. 271. The Florida Medicaid Provider General Handbook provides that "[m]edical goods or services are excessive or not medically necessary unless both the medical basis and the specific need for them are fully and properly documented in the recipient's medical records." Pet. Ex. 9, pp. 169-173.2/ The undersigned undertook a careful and meticulous review of the record. This included reading Transcript testimony, reviewing manuals and handbooks provided, and comparing and cross-referencing the hearing testimony to the worksheets and handwritten medical notes and other records prepared by Respondent. Findings of Fact on Disputed Claims Recipient #2, Claim 3. Respondent submitted this claim using CPT Code 69200. Pet. Ex. 15-2, p. 376-A. Dr. Silkes testified that there was a myringotomy tube that was placed in the ear by Respondent. The tube is not considered a foreign body, and Medicaid does not pay for its removal when inserted by the original doctor. She concluded that removal of the tubes is not properly billed as CPT Code 69200. This conclusion is also supported by provisions of the Physicians Services Handbook (Pet. Ex. 13, p. 199), which does not permit additional billing under global surgery packages for the removal of "items such as tubes, drains . . . ." (see bullet point 6 entitled "Miscellaneous Services and Supplies). This restriction does not place any time limit when the non-reimbursable "miscellaneous service" is performed, even outside the normal 90- or ten-day time period. The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and AHCA. The removal of the tubes fell under the exclusion of miscellaneous services or did not otherwise qualify for reimbursement (Pet. Ex. 13, p. 199). The claim was properly denied. Recipient #3, Claim 5. Respondent submitted a claim using CPT Code 31237 for services on January 30, 2012, Nasal/Sinus Endoscopy Surgery. Pet. Ex. 15, pp. 376 (worksheet) and 387 (medical record). Dr. Silkes denied this claim because she could not find documentation to support the procedure. However, there is documentation at Petitioner's Exhibit 15, page 387, included in a contemporaneous office note for January 30, 2012. It indicates on the fifth line that Respondent performed a nasal endoscopy ("nasal endo") and that he did bilateral debridement of the sinuses. He found crusting on the right, and the right sphenoid sinus was narrow. Dr. Silkes testified that she may have misread the nasal endo reference and that Dr. Carreno may be correct on that point. The undersigned credits and finds more persuasive Respondent's evidence and finds that the claim should have been paid as requested and coded. Recipient #3, Claim 11. Respondent submitted a claim using CPT Code 31231 for services on June 13, 2012, nasal endo. Pet. Ex. 15, pp. 377 (worksheet) and 388 (medical record). Dr. Silkes denied this claim because she did not find anything in the medical record to support billing for this service. The supporting medical note documents a nasal endo in the middle of the notes. Respondent wrote in the assessment and plan ("A/P") "looks good but mucocele of right sphenoid." Also, he testified that if he did not do the endoscopy, he could not have seen the right sphenoid. The undersigned credits and finds more persuasive Respondent's evidence and finds that the claim should have been paid as requested and coded. Recipient #3, Claim 12. This claim was adjusted from CPT Code 99214 to 99212 by Dr. Silkes. She concluded that the medical records failed to properly document an examination and the medical decision-making was straightforward. Pet. Ex. 15-3, p. 377. The undersigned credits and finds more persuasive AHCA's evidence and finds that the code should be reduced to CPT Code 99212. Recipient #3, Claim 13. This claim was denied by AHCA on the basis that the examination of July 30, 2012, was included within a global surgical fee package. The surgery was performed on August 13, 2012, after the decision to perform the surgery was made on July 16, 2012. Pet. Ex. 15-3, pp. 378 and 389. The Physicians Services Coverage and Limitations Handbook (Pet. Ex. 11, p. 199) provides as follows: Evaluation and management services, subsequent to a decision for surgery visit, that are limited and focused to determine the health of the individual prior to surgery are included in the global surgery package and may not be billed separately. The primary purpose of the visit on July 30, 2012, was an examination to determine the health of the individual. The patient visit was limited in scope and should be included in the global surgical package. The surgical decision was made prior to this encounter, and the surgery occurred after it. The undersigned credits and finds more persuasive ACHA's evidence and finds that the claim was properly denied. Recipient #3, Claim 17. Respondent submitted a claim for services performed on January 14, 2013, office outpatient visit. Pet. Ex. 15, pp. 378 (worksheet) and 392 (medical record). Dr. Silkes down-coded this from CPT Code 99214 to 99212, because "only nasal examination was performed with cultures and he [the patient] was told to return for a full examination." She said the history was problem focused, the exam was problem focused, and the decision-making was straight forward. Both Dr. Carreno and his coding witness, Lorraine Molinari, pointed out that the record says that the visit lasted "30 minutes." This factor justifies a claim under CPT Code 99214. Also, the visit involved a more detailed and extensive examination of the nasal areas by Respondent. The undersigned credits and finds more persuasive the evidence presented by Respondent, particularly due to the amount of time devoted to this visit. It was properly coded as CPT Code 99214. Recipient #3, Claim 18. Respondent submitted a claim using CPT Code 99214 for an office outpatient visit on February 13, 2013. Pet. Ex. 15, pp. 378 (worksheet) and 392 (medical record). Dr. Silkes down-coded this to CPT Code 99213, opining that Dr. Carreno only performed an expanded problem focused history, expanded problem focused examination, and the decision- making was of low complexity. Dr. Carreno characterized this patient as one of the most complicated medical cases he has handled. The patient had a myriad of medical problems related to his ENT systems. Dr. Carreno and Molinari stated that the visit included an extensive conversation with the patient and his mother, and he also had to review and consider information from Dr. Ramos (immunologist's) notes. Dr. Carreno documented a left maxillary sinus suctioned under endoscopy. The extent of his note and documentation is reflective of a more extensive and complex examination and visit. Molinari opined that it should be CPT Code 99214. The undersigned credits and finds more persuasive the evidence presented by Respondent, particularly due to the complexity of the examination. It was properly coded as CPT Code 99214. Recipient #3, Claim 20. This claim was adjusted from CPT Code 99214 to 99213 by Dr. Silkes. She opined that the examination was only problem focused ("nasal exam only") and that there were no other records that would support the higher level of services claimed. Pet. Ex. 15-3, pp. 379 and 393. Additionally, there was no documentation to support a higher level claim under CPT Code 99214, nor was the use of an endoscope documented. The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and ACHA. The claim was properly reduced to CPT Code 99213. Recipient #3, Claim 21. Respondent submitted this claim using CPT Code 31231, a nasal endo code. Pet. Ex. 15-3, pp. 379 and 393. Dr. Silkes testified she did not find any documentation in the record that would show that an endoscopy was performed on that date, but did allow an office visit for the same date where a nasal exam was performed (Claim 20, adjusted from CPT Code 99214 to 99213). The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and AHCA. The claim was properly reduced to CPT Code 99213 primarily for failure to properly document that an endoscopy was performed. Recipient #3, Claim 22. Respondent submitted a claim using CPT Code 99214 for services on June 17, 2013, office outpatient visit. Pet. Ex. 15, pp. 379 (worksheet) and 393 (medical record). Dr. Silkes testified that she reduced this to CPT Code 99213 because only a nasal examination was done which is a problem focused examination. She concluded that the ear, nose, and throat were not examined. Dr. Carreno testified that it was not only a nasal exam. His contemporaneous notes reference an "endoscopic debridement" on the third line, which means he used an endoscope to see in the nose and clean fungal content out with suction and graspers. Molinari opined that the visit should remain CPT Code 99214 because the medical decision-making reflected in the note was at least moderate complexity. The undersigned credits and finds more persuasive the evidence presented by Respondent. The use of an endoscope and performing the debridement procedure were sufficiently documented. The services performed supported coding as CPT Code 99214. Recipient #3, Claim 24. This claim by Respondent was adjusted from CPT Code 99214 to 99213 by Dr. Silkes. She opined that "only a nasal examination was done" and that the examination and history were both either problem focused or expanded problem focused. Pet. Ex. 15-3, pp. 379 and 394. Respondent's witness, Molinari, agreed with Dr. Silkes' adjustment. The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and AHCA. The claim was properly reduced to CPT Code 99213 primarily because the visit only involved a less complicated nasal examination. Recipient #3, Claim 26. Respondent submitted a claim using CPT Code 99214 for services on January 8, 2014, office outpatient visit. Pet. Ex. 15, pp. 380 (worksheet) and 395 (medical record). Dr. Silkes down-coded it to CPT Code 99213 because "only the nose was examined." However, Dr. Carreno testified that he performed a fiberoptic laryngoscopy, using an endoscope, to inspect for any fungal debris. This was sufficiently documented in his contemporaneous office notes. He also used the scope to view the nasopharynx. His notes also reflect that a physical exam (PE) was performed. Molinari felt the claim should remain CPT Code 99214 because the medical decision-making was of moderate complexity. The undersigned credits and finds more persuasive the evidence presented by Respondent. The use of a scope to inspect the nasal passages and nasopharynx were sufficiently documented. The services performed supported his coding as CPT Code 99214. Recipient #3, Claim 28. The claim submitted was adjusted from CPT Code 99214 to 99213 by Dr. Silkes. She opined that "only the nose was examined" and that there were no other records that would support the higher level. Pet. Ex. 15-3, pp. 380 and 395. Further, there was no documentation that an endoscope was used. The undersigned credits and finds more persuasive the evidence from Dr. Silkes and AHCA. The claim was properly reduced to CPT Code 99213, primarily because the visit involved a less complicated nasal examination. Recipient #3, Claim 35. Respondent submitted a claim under CPT Code 31237 for services on April 30, 2014, Nasal/Sinus Endoscopy Surgery. Pet. Ex. 15, pp. 381 (worksheet) and 395 (medical record). Dr. Silkes denied this claim because she felt that this was included in the global surgery package for the septoplasty that was performed on April 21, 2014. A "septoplasty" is where you move the septum in the nose if it is causing problems with sinuses or breathing. In her view, Claim 35 was a normal post- operative visit, namely, to remove the splint. Dr. Carreno testified and conceded that "yes, I did remove the splints, but I also needed to place the endoscope to assess the sinus surgical site. And not only did I assess it, but I cleaned it and debrided it, and it clearly said cleaned, debrided, endo shows." Dr. Carreno acknowledged that a septoplasty procedure has a 90-day global period, but testified that a global surgery package does not apply to a sinus endoscopy and debridement following the sinus surgery. The undersigned credits and finds more persuasive the evidence presented by Respondent. It was medically prudent and necessary to use an endoscope post-operatively for inspection and debridement, and this was sufficiently documented. The services performed supported coding as CPT Code 31237. Recipient #25, Claim 11. Respondent submitted this claim using CPT Code 69200. Pet. Ex. 15-25, p. 782. Dr. Silkes testified that there was a myringotomy tube that was placed in the ear by Respondent. The tube is not considered a "foreign body," and Medicaid does not pay for its removal when inserted by the original doctor. She concluded that removal of the tubes is not properly billed as CPT Code 69200. This conclusion is supported by provisions of the Physicians Services Handbook (Pet. Ex. 13, p. 199), which does not permit additional billing under global surgery packages for the removal of "items such as tubes, drains . . . ." This is found under bullet point 6 entitled "Miscellaneous Services and Supplies." This restriction does not place any time limit on when the non-reimbursable "miscellaneous service" is performed, even outside the normal 90-day time period. The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and AHCA. The removal of the tubes fell under the exclusion for miscellaneous services or did not otherwise qualify for reimbursement. Pet. Ex. 13, p. 199. The claim was properly denied. Recipient #29, Claim 6. Respondent submitted this claim using CPT Code 69200. Pet. Ex. 15-29, p. 830. Dr. Silkes testified that there was a myringotomy tube that was placed in the ear by Respondent. The tube is not considered a "foreign body," and Medicaid does not pay for its removal when inserted by the original doctor. She concluded that removal of the tubes is not properly billed as CPT Code 69200. This conclusion is supported by provisions of the Physicians Services Handbook (Pet. Ex. 13, p. 199), which does not permit additional billing under global surgery packages for the removal of "items such as tubes, drains. . . ." (see bullet point 6 entitled "Miscellaneous Services and Supplies"). This restriction does not place any time limit on when the non-reimbursable "miscellaneous service" is performed, even outside the normal 90-day time period. The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and AHCA. The removal of the tubes fell under the exclusion for miscellaneous services or did not otherwise qualify for reimbursement. Pet. Ex. 13, p. 199. The claim was properly denied. Recipient #30, Claim 1. This claim was adjusted down from CPT Code 99214 to 99213 by Dr. Silkes. She opined that both the history and examination were problem focused and that the decision-making was straightforward. Pet. Ex. 15-30, pp. 856 and 861. The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and AHCA. The claim was properly adjusted to CPT Code 99213. Recipient #30, Claim 2. This was submitted under CPT Code 69210. Dr. Silkes denied the claim citing a lack of documentation to show that any cerumen or ear wax was actually removed. The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and AHCA. The removal of cerumen was not properly documented, and the claim should be denied. Recipient #30, Claim 4. Respondent submitted a claim for services using CPT Code 99214 for services on May 16, 2012, Office/Outpatient Visit. Pet. Ex. 19 (no Bates stamp numbers, as this was a late submission). After reviewing several late-filed documents from Respondent, Dr. Silkes down-coded this to CPT Code 99213 because there was an expanded problem focused history, there was a problem focused examination, and medical decision- making was of low complexity. Dr. Carreno explained that the claim should be allowed as CPT Code 99214 because he examined four separate body systems or areas. He examined the throat due to enlarged tonsils and enlarged adenoids, he examined the ear for infection, he took the patient's temperature and weight in connection with sleep apnea, and he examined the nose. He also rescheduled the patient for surgery and discussed the risks and benefits of surgery with the parents. Molinari testified that it should be allowed as a CPT Code 99214 because the decision-making was, at least, of moderate complexity, including a detailed examination of pallet, tonsils, and sinuses, as well as explaining the risk and benefits of surgery to the parents. The undersigned credits and finds more persuasive the evidence presented by Respondent. This visit involved a more detailed and extensive examination of the patient and justified a claim using CPT Code 99214.
Recommendation Based on the evidence covering the Disputed Claims during the audit period of January 1, 2012, through December 31, 2014, it has been established by a preponderance of the evidence that Respondent was overpaid for certain services not covered by Medicaid. Those overpayments are listed in paragraph 123 in the Conclusions of Law section. The undersigned recommends that the Agency for Health Care Administration enter a final order ordering Respondent to repay the recalculated amount. Considering the facts proven at the hearing, the Agency has established by clear and convincing evidence that Respondent failed to comply with the provisions of the Medicaid law for certain claims. Those overpayments are also listed in paragraph 123 in the Conclusions of Law section. It is recommended that the Agency recalculate and impose a sanction commensurately lower than the previous sanction, pursuant to rule 59G-9.070(7)(e). Pursuant to section 409.913(23)(a), the Agency's request of an award of reasonable investigative, legal, and expert witness costs as the prevailing party is granted, in part, based on a limited number of violations outlined in paragraph 123. If the amount of the costs cannot be agreed to, then the Agency may request a hearing for the establishment of the costs. DONE AND ENTERED this 22nd day of May, 2017, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 22nd day of May, 2017.
The Issue The issue in this case is whether Dr. Bala violated Chapter 893, Florida Statutes, and failed to adhere to the professional standards for examination, treatment and prescription for patients as set forth in Counts I through XXIX of the Administrative Complaint and thereby is in violation of Chapters 458 and 893, Florida Statutes.
Findings Of Fact The general Findings of Fact made in Part II above are hereby incorporated and made a part of these findings on Count XXVIII of the Administrative Complaint. Carol Mather first saw the Respondent at his professional office in January of 1979. On her first visit, Mather filled out a personal medical history in which she recorded she was allergic to codeine, and she had her blood pressure taken. She complained of frequent headaches. The Respondent examined Mather and determined she was four to five months pregnant. Mather knew this. Respondent also noted the needle tracks in Mather's arms from injecting drugs. The Respondent advised Mather she should not use drugs if she was pregnant. Mather told the Respondent she was an addict and was going to take drugs no matter where she got them. Respondent wrote two prescriptions for Mather on her first visit, each for 40 Dilaudid 4 mg., but only after she had signed a release for any harm to the baby. Mather had no recollection of her second visit to the Respondent's office, but she went one time in November, 1979, with Detective Sullivan. On this last occasion, Respondent did not prescribe any drugs for her. Expert medical testimony based upon the community standards was received that the prescription of Dilaudid for a patient complaining of migraine headaches, particularly a patient four to five months pregnant, was inappropriate.
Conclusions The Board has charged the Respondent with violation of Sections 893.05 and 893.13, Florida Statutes (1979); Subsection 458.1201(1)(m), Florida Statutes (1978 Supp.); and Subsections 458.331(1)(h), (q) and (t), Florida Statutes (1979). As stated above, Subsections 458.331(1)(h), (q) and (t), supra, were not effective until May 30, 1979. This was after the date Respondent prescribed Dilaudid for Carol Mather. These subsections may not be applied retroactively, and the Respondent may not be charged under them. Sections 893.05 and 893.13, Florida Statutes, as stated previously in this order, remained essentially unchanged in 1977 and 1979. However, Chapter 893, Florida Statutes (1979), does not grant authority to the Board to enforce its provisions. Enforcement of Chapter 893, supra, by the Board must be authorized under the provisions of Chapter 458, Florida Statutes (1978 Supp.). Subsection 458.1201(1)(k), Florida Statutes (1978 Supp.), authorizes the Board to discipline its licensees for violation of the statutes such as Section 893.05, supra. However, the Board has not charged the Respondent under Subsection 458.1201(1)(k) Florida Statutes (1978 Supp.), which was the only statute making a violation of Chapter 893, supra, grounds for discipline at the time these acts occurred. The expert testimony was uncontroverted that prescription of Dilaudid to a patient for migraine headaches, particularly a patient four to five months pregnant, would be inappropriate. The fact that Mather signed a waiver of liability and admitted addiction did not alter this opinion. Treatment of a pregnant woman with narcotic drugs creates a risk to the fetus which, according to the expert testimony, is a fact widely known within the medical profession for many years. The record is clear that Respondent knew Mather was addicted to drugs and was pregnant and gave her two prescriptions, each of which was for 40 Dilaudid 4 mg. The testimony and evidence do show a violation of Subsection 458.1201(1)(m), Florida Statutes (1978 Supp.). Applying the rule applicable to general statutes, if this provision was reenacted substantially in 1979, the prosecution under the repealed provision may be maintained. The conduct prohibited or punishable under Subsection 458.1201(1)(m), supra, is prohibited or punishable under Subsections 458.331(1)(q) and (t), Florida Statutes (1979). The Respondent is guilty of violating Subsection 458.1201(1)(m) , Florida Statutes (1978 Supp.).
Recommendation Having found the Respondent guilty as alleged in Counts IX, XII, XVII and XXVIII of the Administrative Complaint, the Hearing Officer recommends that the Board of Medical Examiners revoke the license of Dr. Clemente C. Bala, Jr., to practice medicine within the State of Florida. DONE and ORDERED this 31st day of March, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 31st day of March, 1982.
The Issue This is a license discipline case in which the Petitioner, by means of a one-count Administrative Complaint, seeks to take disciplinary action against the Respondent on the basis of his alleged violation of Section 458.331(1)(c), Florida Statutes (2002).
Findings Of Fact The Respondent, Eduardo S. Mendez, M.D., was born in Cuba, was reared in Cuba, and was educated in Cuba. His education in Cuba included a degree in Medicine. He came to the United States of America in 1995. Shortly after moving to this country, the Respondent became the owner of a retail pharmacy and medical equipment business in Florida. The Respondent did not have a license to practice pharmacy in Florida. On the basis of conduct which took place between July of 1998 and June of 2000, an Information was issued in Case No. 02-20859 in the United States District Court for the Southern District of Florida charging the Respondent with engaging in a conspiracy to pay and receive health care kickbacks in violation of Title 18, United States Code, Section 371. The basic facts forming the basis for the criminal charge are described as follows in the Information: Medicare was a "Federal health care program" as defined in Title 42, United States Code, Section 1320a-7b(f)(1). Confortec D.M.E., Inc. ("Confortec") was a pharmacy located in Miami, Florida. Confortec was authorized by Medicare to submit claims to Medicare Part B for reimbursement of the cost of certain medications that Confortec dispensed by prescription to Medicare beneficiaries. Defendant EDUARDO S. MENDEZ was a resident of Miami and the sole owner of Confortec. Defendant EDUARDO S. MENDEZ offered to pay kickbacks to various patient recruiters so that they would provide the names and Medicare identification numbers of Medicare beneficiaries, along with prescriptions relating to these beneficiaries. Confortec filled these prescriptions and then filed claims with Medicare for reimbursement of the cost of the prescribed medications. After receiving payment on these claims from Medicare, defendant EDUARDO S. MENDEZ used a portion of the payments to pay kickbacks to the patient recruiters or their associates. * * * 12. Using a portion of the money received from Medicare payments, defendant EDUARDO S. MENDEZ paid or caused to be paid approximately $200,000 in kickbacks to the patient recruiters or their associates so that the recruiters would continue to refer Medicare beneficiaries and related Medicare prescription business to Confortec. Following his arrest, the Respondent cooperated extensively with the Federal Bureau of Investigation (FBI) and assisted the FBI in their investigation of his own activities, as well as in their investigation of similar criminal activities by others. Because of the Respondent's assistance to the FBI, the federal prosecutor recommended a substantial reduction in the sentence that might otherwise have been imposed on the Respondent. On November 14, 2000, the Respondent entered into a plea agreement in which he agreed "to plead guilty to an Information or an Indictment that charges him with the crime of conspiracy to commit an offense against the United States, namely, a violation of Title 42, United States Code, Section 1320a-7b(b)(2)(knowingly and intentionally offering and paying kickbacks and bribes to any person to induce the referral of individuals for the furnishing of services or items for which payment may be made under a Federal health care program), in violation of Title 18, United States Code, Section 371." On or about February 12, 2003, a United States District Judge signed a judgment in which the Respondent was adjudicated guilty of the criminal offense described above. The Respondent's sentence was three years of probation, three months of home confinement (with electronic monitoring), 150 hours of community service, and a fine of $100.00. The Respondent has fulfilled all of the terms of his sentence. Although the recruitment methods described above are prohibited by federal law and are a crime, that criminal activity does not involve any element of fraudulent billing seeking reimbursements from the Medicare program for services or items that were not provided. To the contrary, all of the prescriptions for which Confortec sought Medicare reimbursement were prescriptions that were actually filled for medications that were actually provided to the Medicare beneficiaries. During the period from July of 1998 through June of 2000, the Respondent did not have a license to practice medicine in Florida. Accordingly, the criminal conduct described above was not related to the Respondent's practice of medicine, because the Respondent was not practicing medicine at that time. As discussed in greater detail in the conclusions of law, the criminal conduct described above was directly related to the practice of medicine by the physicians who wrote the prescriptions that were filled in the course of the subject criminal activity. As also discussed in greater detail in the conclusions of law, the criminal conduct described above was directly related to the ability to practice medicine. The Respondent is presently a physician licensed to practice medicine in the State of Florida. He has been so licensed since November of 2001. His license number is 83615. The criminal charges described above are the only criminal charges that have ever been filed against the Respondent. There has never been any prior disciplinary action taken against the Respondent's license to practice medicine.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be entered finding the Respondent guilty of violating Section 458.331(1)(c), Florida Statutes (2002), and imposing the following penalties: Suspending the Respondent's license to practice medicine for a period of nine months; Imposing an administrative fine in the amount of five thousand dollars; and When the Respondent is reinstated following the nine- month period of suspension, placing the Respondent on probation for a period of two years subject to such terms of probation as may appear to the Board of Medicine to be necessary and appropriate. DONE AND ENTERED this 16th day of September, 2005, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 16th day of September, 2005.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the facts stipulated to by the parties, the following relevant facts are found: Petitioner Frank Robert Gentile was born in New York on August 14, 1942, and is a citizen of this country. He attended St. John's Preparatory School in New York from 1956 through 1960, and received his undergraduate degree from Seton Hall University in New Jersey in 1964. His medical degree was received from the University of Bolgona, Bolgona, Italy, in 1972. In 1973, petitioner's credentials were evaluated by the Educational Commission for Foreign Medical Graduates and he received a passing grade on the examination administered by that organization. Between July, 1972 and June, 1973, petitioner trained as a clinical clerk at Maimonides Medical Center and Wyckoff Heights Hospital in Brooklyn, New York. From July, 1973 through January, 1974, petitioner completed his medical externship at the Veteran's Administration Hospital in Brooklyn, New York. From January, 1974 through January, 1975, petitioner completed an approved internship at Jersey Shore Medical Center in Neptune, New Jersey. From July, 1975 through June, 1978, petitioner completed his residency at Methodist Hospital in Brooklyn, New York. Petitioner received a passing grade in the examination administered by the Federation of State Medical Boards of the United States, Inc. (FLEX) in September of 1977. From July, 1978 through June, 1979, petitioner trained as a Hematology Fellow I at Cabrini Medical Center, New York, New York. From July, 1979 through June, 1980, petitioner trained as a Hematology Fellow II at Downstate Medical Center-Kings County Hospital Center in Brooklyn, New York. From July, 1980 through June, 1981, petitioner trained as a Medical Oncology Fellow at Downstate Medical Center-Kings County Hospital Center in Brooklyn, New York. Petitioner has been continuously and actively engaged in the practice of medicine, specializing in the fields of hematology and oncology, from June, 1981 to the present. Petitioner currently holds licenses to practice medicine in the states of New York and North Carolina. These licenses are in good standing, have never been revoked or suspended and petitioner is not under investigation in either state. From July, 1981 through January, 1982, petitioner was employed by Memorial Hospital of Alamance County, Burlington, North Carolina, as a hematologist and oncologist. He considered this employment to be temporary and so informed the Chief of Staff. While at Memorial Hospital, petitioner treated patients, did consultations and trained the oncology nurse. During the first part of his work there, his patients and charts were reviewed by a panel of doctors. He never received any complaints from his patients or from his fellow physicians concerning his medical skills. The Medical Staff Bylaws required a six-month review. In January, 1982, petitioner was informed by the Chief of Medicine that the review board had met, that petitioner's charts were not complete enough and that the board felt that petitioner should immediately resign from the Hospital. When petitioner inquired as to the problems the board found with respect to his charts, he was not given a specific answer. Petitioner received no prior warning and he considered his charts acceptable. Rather than contesting the charges against him, petitioner resigned from Memorial Hospital inasmuch as he had no intention of remaining there on a permanent basis. On March 17, 1982, petitioner applied to the Florida Board of Medical Examiners for licensure by endorsement pursuant to Section 458.313, Florida Statutes (1981). His application was complete in all respects and was accompanied by the required application fee. During the application process, petitioner was requested to furnish additional information as to what he was doing from June, 1981 to the present. He responded that he had finished his training near the end of June and then had been trying to find a place to start a private practice. He further explained that he took over a doctor's practice while that doctor was on vacation and that he had worked in the emergency rooms in the North Carolina area. No mention was made by respondent of his employment with the Memorial Hospital of Alamance County. Upon a standard inquiry to the North Carolina State Board of Medical Examiners, the respondent board learned of petitioner's affiliation with the Memorial Hospital of Alamance County. That Hospital was requested to complete a form regarding petitioner. The form was completed by "Susan Denault, Assistant Administrator," and was returned to the respondent and placed in petitioner's application file. To the question "Does he perform competently?" the answer "Questionable" appears on the form. To the question "Have any restrictions ever been placed on him beyond the original period of probation?" the following answer appears: On January 18, 1982, the Department of Medicine reviewed the work of Dr. Frank R. Gentile acting in accordance with the Medical Staff Bylaws, Rules and Regula- tions which require a six-months review. At that meeting the Department of Medicine decided the work of Dr. Frank R. Gentile had not been up to the standards expected by the department, and was not in accordance with that standard that should be appropriate for practice in the Memorial Hospital of Alamance County. Before further action could be taken, Dr. Frank R. Gentile voluntarily resigned his membership and clinical privileges to the Medical Staff of Memorial Hospital of Alamance County, Inc. Dorothy Faircloth, the Executive Director of the Florida Board of Medical Examiners, in response to petitioner's inquiry as to the status of his application, informed petitioner that the Board had received the form from the Memorial Hospital of Alamance County and related the contents to him. She advised petitioner that the normal procedure of her office was to request further information from an institution providing such information and also to request the applicant to provide a written response to such a report. However, petitioner indicated that he wished to personally address the Board on this matter at its upcoming Board meeting. Petitioner did appear at the Board meeting but felt that the Memorial Hospital matter was not fully addressed by the Board and that he was not given the opportunity to speak to the Board on that matter. By Order dated June 24, 1982, the Board of Medical Examiners denied petitioner's application for licensure by endorsement, finding that The Petitioner has not demonstrated to the Board that he is capable of safely engaging in the practice of medicine with reasonable skill and safety to his patients based upon his voluntary resignation of his membership and clinical privileges at Memorial Hospital of Alamance County, Inc., Burlington, North Carolina, just prior to disciplinary action taken by the hospital. Based on this finding, the Board concluded that petitioner had not demonstrated that he meets the statutory requirements of Sections 458.313 and 458.331(3), Florida Statutes.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that petitioner's application for licensure by endorsement be GRANTED. Respectfully submitted and entered this 17th day of January, 1983, in Tallahassee, Florida. DIANE D. TREMOR, 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 January, 1983. COPIES FURNISHED: Edward P. de la Parte, Jr., Esquire de la Parte & Gilbert 705 East Kennedy Boulevard Tampa, Florida 33602 Chris D. Rolle, Esquire Assistant Attorney General Department of Legal Affairs Suite 1602, Capitol Tallahassee, Florida 32301 Dorothy Faircloth Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICAL EXAMINERS FRANK ROBERT GENTILE, M.D. Petitioner, vs. DOAH CASE NO. 82-1994 DEPARTMENT OF PROFESSIONAL REGULATION and BOARD OF MEDICAL EXAMINERS, Respondent. /
The Issue The issue presented for decision herein is whether or not the Respondent engaged in proscribed conduct, set forth hereinafter in detail, as is more particularly set forth in a two count administrative complaint filed herein dated May 12, 1986.
Findings Of Fact Respondent, Cecil Rolle, during times material was a licensed dentist in Florida having been issued License Number DN0005067. On January 24, 1984, Respondent treated Karen Fuller, a patient. For such treatment, Respondent charged $250 for dental services rendered and Ms. Fuller paid $50 on account. (Petitioner's Exhibit 8). Ms. Fuller never returned for follow- up treatment nor did she pay the outstanding balance of $200 for services rendered. On approximately July 26, 1985, Respondent received a letter and an accompanying executed medical release authorization from Fuller's attorney, Scott Saperstein, requesting copies of "any and all records, charts and x-rays regarding the care and treatment of Karen Fuller." (Petitioner's Exhibit 1). Respondent failed to provide the records requested in the July 26, 1985 letter until more than one (1) year later on August 11, 1986. On about September 6, 1985, Respondent received a second written request from attorney Saperstein requesting Ms. Fuller's records. (Petitioner's Exhibit 2). Respondent again failed to provide the requested records. Shortly after making the September 6, 1955 request, Scott Saperstein spoke to Respondent who advised that he had treated patient Fuller on one occasion, that she had not made payment or still owed money for that visit and that he would not release patient records while the outstanding fee remained unsatisfied. On October 25, 1985, attorney Saperstein wrote to the Department of Professional Regulation (DPR) advising of Respondent's failure to provide the requested documents and a copy of that letter was sent to Respondent. (Petitioner's Exhibit 3). On December 10, 1985, Respondent received a letter from DPR requesting that he explain his failure to provide the patient's records to attorney Saperstein. (Petitioner's Exhibit 4). On January 28, 1986, Respondent sent a written reply to DPR apologizing for having delayed responding to DPR's original request and furnished a summary of treatment he provided to Ms. Fuller on November 24, 1984. (Petitioner's Exhibit 5). However, Respondent offered no explanation as to the reason he did not provide Ms. Fuller's records as requested by her counsel. On February 3, 1986, Respondent received another letter from DPR requesting that he respond to the allegations, i.e., his failure to make patient's records available immediately. (Petitioner's Exhibit 6). Respondent never replied to this second request by DPR. On July 28, 1986, Respondent received written notification from Karen Fuller's counsel advising of his intent to initiate litigation alleging dental malpractice against Respondent relative to the treatment Petitioner provided Ms. Fuller. (Petitioner's Exhibit 7). On approximately, August 11, 1986, Respondent provided Ms. Fuller's counsel with her original medical records. (Petitioner's Exhibit 8). Respondent acknowledged that he is required to know the pertinent statutes and rules relating to the practice of dentistry. Respondent also acknowledged that he did not turn over Ms. Fuller's medical records initially based on an informed decision reached after consultation with his attorney and directives from his medical malpractice insurance carrier to the effect that he should not release medical records until his insurance carrier authorized him to do so. Respondent initially advised attorney Saperstein that since Ms. Fuller had failed to pay the entire fee for services rendered, he would not be releasing copies of her medical records. Respondent made the decision to withhold Ms. Fuller's medical records until the air was cleared surrounding the competing claims between attorney Saperstein and his malpractice insurance carrier.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: Respondent pay Petitioner an administrative fine of $1,000 within thirty (30) days after entry of Petitioner's Final Order. Respondent be issued a written public reprimand by the Petitioner, Board of Dentistry. RECOMMENDED this 15th day of July, 1987, in Tallahassee, Florida. JAMES E. BRADWELL 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 15th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3676 Rulings on Petitioner's Proposed Recommended Order Paragraph 8. Accepted as modified in paragraphs 6 and 13, Recommended Order. Paragraph 14. Accepted as modified in paragraph 11, Recommended Order. Paragraph 15. Accepted as modified in paragraph 14, Recommended order. COPIES FURNISHED: Henry N. Adorno, Esquire Adorno Allen Schiff & Goodkind, P.A. 1501 Venera Avenue Park Place II, Suite 240 Coral Gables, Florida 33146 Harold C. Culmer, Esquire, P.A. 5020 Northwest Seventh Avenue Miami, Florida 33127 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Pat Guilford, Executive Director Department of Professional Regulation, Board of Dentistry 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Respondent is charged in Count I of the Administrative Complaint with failure to properly examine, diagnose, and treat the patient Lynne McMurry; failure to keep adequate written medical records regarding treatment; providing treatment to the patient which was neither necessary nor justified; and failing to properly inform the patient of Respondent's medical diagnosis and by so doing violating Section 458.331(1)(t), Florida Statutes, in that she failed 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. Upon the same factual allegations, Count II alleges violation of Section 458.331(1)(o), exercising influence on a patient or client in such a manner as to exploit the patient or client for financial gain. Upon the same factual allegations, Count III charges violation of Section 458.331(1)(1) by making deceptive, untrue, or fraudulent representations in the practice of medicine or by employing a trick or scheme in the practice of medicine when such trick or scheme fails to conform to the generally prevailing standards of treatment in the medical community. Upon the same factual allegations, Count IV charges a violation of Section 458.331(1)(n) by failing to keep written medical records justifying the course of treatment of a patient. Upon the same factual allegations, Count IV charges a violation of Section 458.331(1)(i) by making or filing a report the Respondent knows to have been false.
Findings Of Fact No evidence was adduced at formal hearing to prove up the threshold issue of jurisdiction by licensure. No prehearing stipulation of the parties established paragraph 2 of the Administrative Complaint alleging that at all times material hereto Respondent was a licensed physician in the state of Florida, having been issued license number ME0037967. No requests for admission within the record establish this essential allegation as fact. No answers to interrogatories to establish this fact were read into evidence at the hearing. Respondent saw Lynne McMurry on four occasions. Respondent saw this 113 pound 39 year old female on April 17, 1984, and took a complete medical history. On April 24, 1984, Respondent's notes reflect that Respondent recorded McMurry's blood pressure and glucose level and did a urinalysis. They also reflect that vitamin B-complex was prescribed. There is no indication within the notes of whether this vitamin was administered orally, intramuscularly, or otherwise. However, it appears from the testimony that both experts assumed the B complex was administered by injection on that date. The notes reveal that on May 8, 1984, Respondent performed a lesion removal (described in testimony as the excision of a mole) and recorded test scores for urine, glucose, hematocrit, and hemoglobin. It may be inferred that the tests were done in Respondent's office on blood and urine samples provided by Ms. McMurry. According to Respondent's notes, she again saw McMurry on May 22, 1984, recorded her weight as reduced to 110 pounds, and again prescribed vitamin B-complex. Attached to these notes are copies of the test results recorded plus a breast thermography done on April 24, 1984, and one testing panoramic dated April 17, 1984. No notes were recorded by Respondent for April 17, 1984, beyond the medical history previously mentioned. Insurance claims for these treatments were made by Respondent based on diagnoses of "fibrocystic breast disease" and "hypotension." Petitioner's witness, Dr. Stanley L. Weiss, an osteopathic physician, has concentrated much of his study, practice, and writing in the Respondent's field of bariatric medicine (weight control and eating disorders) and his deposition (P-1) has been accepted as the opinion of an expert witness in review of medical records and medical matters. Dr. Weiss' background includes the policing of medical insurance claim fraud through the Florida Blue Shield Review Committee. Respondent's witness, Dr. Lionel R. Blackman, medical physician and past Medical Director of Lakes Hospital, Lake Worth, Florida, has many years of reviewing physicians' and hospital records, both in hospital peer reviews and in offices where usually only one physician reviews his or her own notes. He testified orally on behalf of Respondent. Dr. Blackman is also accepted as similarly qualified to render expert testimony on review of medical records and on medical matters. Dr. Weiss' criticism of Respondent's notes was solely related to his perception that they fail to contain sufficient information. He specifically found no malpractice in the treatment given, the records kept, or the claims made, but was concerned with the scarcity of what he felt would be adequate progress notes in the chart if another doctor had to review them. He conceded that a comprehensive history and physical examination form had been filled out on April 17, 1984, but expressed concern due to the appearance of several different handwritings on that physical examination form, as though a nurse, physician's assistant, and/or the Respondent herself had partially completed the form. He objected to lack of documentation for the necessity of multiple diagnostic procedures without additional comment within the notes covering actual physical evaluation, patient response to therapy, what therapy had been, and what the future plan of therapy would be. Reviewing the same notes of Respondent, Dr. Blackman considered them sufficient for office practice. He assumed from the notes that the patient being treated was a basically healthy patient without pathology, since no pathology was noted. Under these conditions, he further assumed that the B-complex prescription was used as a general tonic. He stated that one was required to assume Ms. Murry was generally sound because one could not assume a treatment for vitamin deficiency had been undertaken since B-complex vitamin .deficiency is exceedingly rare. He testified as one experienced in reviewing office notes that for office notes, the proper standard is that negative findings need not always be recorded. In short, Dr. Weiss found the notes less than adequate, unsatisfactory, and below common standards, and Dr. Blackman found them adequate, satisfactory, and meeting common standards for office notes. Without conceding any inadequacy of her records, Respondent explained that at the time the various notes had been made, her standard procedure was to personally do the patient history and physical examination while a physician's assistant transcribed the notes from her dictation during her personal "hands- on" examination. Since the complaint was filed, she has discovered everything she orally dictated was not written down by the single assistant she employed in 1984 and since them she has hired two better-trained assistants and has instituted a personal review of each chart at the close of each day's examinations. Respondent has an excellent reputation in the local medical community of West Palm Beach and has served on a number of community service teaching and writing projects. Last year she obtained 98 continuing medical education credits. Although never specifically stated, the undersigned infers all or most of these hours impinge on improving Respondent's record keeping skills. There is no suggestion from any source that the Respondent's diagnoses were in error or that the B-complex did or even could have produced an undesirable result in the patient, Lynne McMurry. Nothing within this record supports the allegations of violations as charged in Counts I, II, III, or V.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Board of Medical Examiners enter a Final Order dismissing with prejudice all Counts against Respondent. DONE and RECOMMENDED this 24th day of April, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 24th day of April, 1987. COPIES FURNISHED: Dorothy Faircloth, Executive Director Florida Board of Medicine 130 North Monroe Street Tallahassee, Florida 32301 H. Scott Hecker, Esquire 517 Southwest First Avenue Fort Lauderdale, Florida 33301 Deborah J. Miller, Esquire 2100 Ponce de Leon Boulevard Suite 1201 Coral Gables, Florida 33134 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Joseph A. Sole, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues in this case are whether Respondent violated Section 458.331(1)(t), Florida Statutes (1997), 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 (the standard of care); and, if so, what penalty, if any, should be imposed against Respondent's license to practice medicine. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated).
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of medicine in Florida pursuant to Section 20.43, Chapter 458, and Chapter 456, Florida Statutes (2001). Respondent is licensed as a physician in the state pursuant to license number ME 0043324. The Administrative Complaint involves one male patient who underwent emergency surgery in 1997 at Tampa General Hospital (TGH). The record identifies the patient as D.Y. in order to preserve the patient's confidentiality. The Administrative Complaint, in relevant part, alleges that Respondent failed to keep written medical records justifying the course of treatment of D.Y. in violation of Section 458.331(1)(m) and departed from the standard of care in violation of Section 458.331(1)(t). At the administrative hearing, however, Petitioner voluntarily dismissed the charge that Respondent failed to keep adequate medical records in violation of Section 458.331(1)(m). The only remaining issue in the Administrative Complaint is whether Respondent deviated from the standard of care by failing to ensure that the attending residents performed surgery on the correct side of D.Y.'s head, i.e., "at the correct site." Respondent is Board certified in Neurology and Neurological Surgery and is a professor and Chairman of the Department of Neurosurgery at the University of South Florida College of Medicine (USF). Respondent is the founder of the residency program in neurological surgery at USF. Respondent performs approximately 300 to 400 neurosurgical procedures each year and has done so for more than 15 years. In 1997, Respondent was the Director of the USF residency program in Neurological Surgery. The residency program required residents to complete six to seven post- doctoral years. The record refers to post-doctoral years alternatively as post graduate years or as PGY-1 through PGY-7. TGH was the primary teaching hospital for USF in 1997 and operates in that capacity today. In March 1997, two resident physicians in the USF neurology program performed surgery on D.Y. at TGH. The record identifies the resident physicians as Drs. Etebar and Makoui. Drs. Etebar and Makoui were authorized and qualified to perform the task each performed during the surgery on D.Y. Respondent was the attending physician of record for D.Y., but TGH protocol did not require Respondent to be present in the operating room during the surgery. Although Respondent was present in the operating room at some point during the surgery, Respondent did not participate in the surgery. On March 25, 1997, D.Y. was 44 years old and involved in an automobile accident. Airmed Flight Service (Airmed), a helicopter flight service, transported D.Y. to TGH. The Airmed Flight Service record indicates that D.Y. had a history of progressive lethargy and suffered a right side subdural hemorrhage. TGH admitted D.Y. under the care of Respondent. The admitting nurse conducted an initial evaluation of D.Y. that included a neurological assessment. D.Y. was extremely lethargic, obeyed only simple commands, and was non-verbal. Dr. Makoui conducted a physical examination of D.Y. D.Y. responded to stimulus but was unable to follow commands and was dysphasic. A magnetic resonance image (MRI) revealed a large subdural hematoma on the left side of D.Y.'s head. A subdural hematoma is a blood clot between the surface of the brain and the dural membrane that covers the brain. While D.Y. was in the MRI suite, the patient herniated and became comatose. He developed seizure activity, and his heart rate dropped below 30 from a normal rate of 75 to 125. Herniation in a patient suffering from a subdural hematoma indicates that a portion of the patient's brain has shifted over a fixed membrane inside the skull and is pressing on the brain stem. It is a life-threatening event because the upper brain stem malfunctions and impacts vital functions, including respiration. Surgical intervention was critical or D.Y. would have died. Respondent ordered D.Y. to be transported to the operating room for evacuation of the subdural hematoma. One means of removing a subdural hematoma is by a surgical procedure known as a burr hole evacuation. In the operating room, the medical team prepared D.Y. for a "burr hole evacuation of hematoma and placement of intracranial pressure monitor." The operating record listed Respondent as the attending surgeon, Dr. Etebar as the surgeon, and Dr. Makoui as an assistant. However, Respondent did not participate in the surgery. Respondent did not enter the operating room until after D.Y. was in the operating room. Drs. Makoui and Etebar were in the operating room with D.Y. when Respondent entered the operating room. The operating room record indicates that Respondent approved the positioning of the patient in the "supine" position, i.e., facing straight up. However, the nurse who made the entry in the operating record customarily lists the name of the attending physician of record as the person who approves the position of the patient. Dr. Makoui shaved D.Y.'s scalp in preparation for the surgery. Dr. Etebar then made two one-inch-long scalp incisions in the frontal and parietal areas on the right side of D.Y.'s head. Respondent did not make any incision in D.Y., including the incorrect incision on the right side of D.Y.'s head. At an undetermined point in the surgery, the surgical team became aware that the incisions made by Dr. Etebar on the right side of D.Y.'s head were incorrect. Respondent was present in the surgical suite when it was first noted that the initial incisions had been made on the incorrect side of D.Y.'s head. Dr. Etebar closed the incisions on the right side of D.Y.'s head and repositioned D.Y. with the left side of the patient's head facing up. Dr. Etebar then made burr hole incisions on the left side of D.Y.'s head and evacuated a large amount of liquid clot. Dr. Etebar placed two drains subdurally on the left side of D.Y.'s head and closed the wounds. Dr. Etebar placed drains in the left side of the brain to prevent any reoccurrence of hematoma. The surgical team repositioned D.Y. neutrally. Dr. Etebar then placed a burr hole and a ventriculostomy catheter on the right side of D.Y.'s head to monitor intracranial pressure. It was medically necessary to monitor intracranial pressure with a pressure monitor because the patient was comatose and could not be monitored clinically for the development of pressure. Respondent and the surgeons at TGH routinely place intracranial pressure monitors in a patient who is suffering from a subdural hematoma and who is comatose preoperatively. Postoperatively, the surgical team transported D.Y. to the neurosurgical intensive care unit where he remained for several days while recovering. On March 31, 1997, TGH discharged D.Y. in stable condition with instructions to follow up with Respondent in two weeks. D.Y. suffered no complication or permanent injury as a result of the incisions by Dr. Etebar in the right side of D.Y.'s head. Respondent did not cause any harm to the patient. Respondent did not personally commit any act or omission that deviated from the standard of care. Nor did Respondent improperly delegate responsibility to Drs. Etebar or Makoui. Four experts, in addition to Respondent, reviewed Respondent's care of D.Y., rendered opinions, and testified in this case. Two of the experts are Drs. Lohse and Rydell. Drs. Lohse and Rydell are experts within the meaning of Section 90.702. Dr. Lohse is Board-certified in neurological surgery and treats subdural hematomas. Dr. Rydell is Board-certified in neurological surgery and provides treatment for subdural hematomas including burr hole evacuations. Dr. Daniel P. Robertson is Petitioner's expert witness. Dr. Robert Snow is Respondent's expert witness. All four experts agree. In providing medical care to D.Y., Respondent did not engage in a direct act or omission that violated the standard of care. Nor did Respondent improperly delegate responsibility to the residents who performed the surgery on D.Y. A burr hole evacuation of a subdural hematoma is the simplest operation performed by neurosurgeons. Dr. Etebar and Dr. Makoui were each competent in 1997 to perform the evacuation of the subdural hematoma using the burr hole procedure. Dr. Makoui was a PGY-2 in his second post graduate year. Dr. Etebar was a fellow in his 7th post-doctorate year of training and was classified as a PGY-7. A fellow in USF neurological surgery has completed the residency program, is at least a PGY-7, is Board-eligible in neurosurgery, and wishes to complete additional training. Dr. Etebar was a Board-eligible neurosurgeon who had completed the residency program and could have easily performed burr hole surgery in any community hospital in the country. Dr. Makoui was in his second year of the residency program and competent to perform the tasks he performed during the surgery. The burr hole procedure performed on D.Y. was a very basic procedure that was performed by a Fellow. A PGY-2 physician in training was also present. Under the terms of the TGH "Scope of Practice" protocol for neurological surgery, a PGY-2 or above could perform the procedure in question without the presence of an attending physician. Although the TGH "Scope of Practice" protocol did not require the presence of Respondent in the operating room, Respondent's normal practice was to walk into the surgical suite to make sure things were going well. Dr. Robertson is Petitioner's expert witness in this case. Dr. Robertson provided an expert opinion letter to Petitioner and testified during two different depositions taken by Respondent. Dr. Robertson could not identify anything that Respondent did personally that deviated from the standard of care. An excerpt from one of Dr. Robertson's depositions is illustrative. Q. . . . is there anything that Dr. Cahill did or failed to do, that you can identify, that constituted a deviation from acceptable standards as opposed to just being responsible for the residents? A. Other than being responsible for the resident's action, no. Petitioner's Exhibit 2 (P-2), at page 41. See also P-3 at 10-11. Dr. Robertson concluded that Respondent did not commit any act or omission that deviated from the standard of care but that Respondent was responsible for the acts or omissions of Drs. Etebar and Makoui. The issue of whether a member of the faculty at a teaching hospital may be liable for the acts or omissions of resident physicians is a legal issue that is beyond the scope of the expertise of the witness. It is not a factual issue of whether the faculty member committed an act or omission that deviated from the standard of care. Even if the issue of Respondent's liability for the acts or omissions of Drs. Etebar and Makoui were a factual issue within the scope of Dr. Robertson's expertise, Dr. Robertson's opinion is based on facts not in evidence. Dr. Robertson assumed that Respondent supervised Drs. Etebar and Makoui and instructed each resident on what to do to D.Y. During Dr. Roberson's testimony, he testified: Q. What is the basis of your opinion that [Respondent] is responsible for the actions of the residents? A. . . . when a surgery is done under a mentor's supervision, then the mentor is ultimately responsible for what occurs in the operating room. * * * . . . what do you mean by "responsible?" A. That the resident is doing what the supervising surgeon is instructing him to do. P-2, at 39-40. Respondent did not supervise and instruct Drs. Etebar and Makoui during the surgical procedure performed on D.Y. Hospital protocol did not require Respondent to be present in the operating room. Although Respondent was present in the operating room at some juncture, Respondent did not participate in the surgery. During the administrative hearing, Respondent submitted the written opinions of Drs. Lohse and Rydell and their deposition testimony for admission into evidence. Petitioner objected to the admissibility of the evidence on the grounds that it is hearsay, irrelevant, and cumulative, and that the witnesses are not qualified as experts. The ALJ stated on the record, as a preliminary observation, that a cursory review suggested the evidence was relevant and not cumulative and that the written expert opinions of Drs. Lohse and Rydell were admissions within the meaning of Section 90.803(18). However, the ALJ reserved final ruling in order to study the evidence more thoroughly and allowed both parties to submit argument and supporting legal authority in their respective PROs. Petitioner's PRO raises a new objection that Petitioner did not raise during the administrative hearing. Petitioner objects to the admissibility of the written opinions of Drs. Lohse and Rydell and to the admissibility of their deposition testimony on the grounds that the evidence constitutes work product that is protected from discovery by Rule 1.280(b)(4)(B). The ALJ deemed the assertion of the work product doctrine in Petitioner's PRO to be an objection to the admissibility of evidence based on the lawyer-client privilege in Section 90.502. The parties filed a joint stipulation of facts and submitted legal memoranda on the evidentiary issues. The written opinions of Drs. Lohse and Rydell are not work product. Petitioner did not obtain the opinion letters in anticipation of litigation within the meaning of Rule 1.280(b)(4)(B). Rather, Petitioner obtained the opinion letters on September 3, 1998, and June 28, 2000, in connection with the investigation of this matter and prior to a determination of probable cause within the meaning of Section 456.073(10), Florida Statutes (2001)(hereinafter, Section 456.073(10)). Section 456.073(10) requires Petitioner to produce the opinion letters of experts obtained in connection with the investigation of the case. In relevant part, Section 456.073(10) provides: . . . Upon completion of the investigation and a recommendation by the department to find probable cause, and pursuant to a written request by the subject or the subject's attorney, the department shall provide the subject an opportunity to inspect the investigative file or, at the subject's expense, forward to the subject a copy of the investigative file. Notwithstanding s. 456.07, the subject may inspect or receive a copy of any expert witness report or patient record connected with the investigation. (emphasis supplied) The written expert opinions rendered by Drs. Lohse and Rydell are contained in Petitioner's complaint investigation file. Petitioner obtained the written expert opinions of Drs. Lohse and Rydell on September 3, 1998, and June 28, 2000, respectively; long before the determination of probable cause that was required before Petitioner could file the Administrative Complaint on December 12, 2001. The opinion letters are not part of Petitioner's theories, mental impressions, or conclusions produced in anticipation of litigation. Assuming arguendo that the written opinions of Drs. Lohse and Rydell are work product, Petitioner argues that the statutory mandate in Section 456.073(10) to disclose the expert opinions to Respondent deprives Petitioner of the volition required to voluntarily waive the work product doctrine within the meaning of Section 90.507. Findings regarding the voluntary nature of the disclosure mandated by Section 456.073(10) are unnecessary because there is no statutory mandate for Petitioner to allow Respondent to take the depositions of Drs. Lohse and Rydell. Petitioner consented to the depositions of Drs. Lohse and Rydell. Petitioner did not oppose the depositions, did not file a motion for protective order, and did not object during the deposition to questions designed to disclose the expert opinions. The consensual deposition testimony of Drs. Lohse and Rydell disclosed their respective opinions and thereby waived the protection that Petitioner claims under the work product doctrine within the meaning of Section 90.507. The written opinions of Drs. Lohse and Rydell are admissions within the meaning of Section 90.803(18)(d). The written opinions are statements by Petitioner's agent or servant concerning a matter within the scope of the agency or employment that is made during the existence of the relationship. In 1998, Petitioner, through its agent, Medimetrics Corporation, Inc. (Medimetrics), solicited an opinion from Dr. Lohse in regard to the care provided by Respondent to D.Y. Dr. Lohse issued a written expert opinion by letter dated September 3, 1998. Sometime prior to June 28, 2000, Petitioner, through Medimetrics, contacted Dr. Rydell and requested that he provide an expert opinion in this matter. On June 28, 2000, Dr. Rydell provided a written expert opinion letter to Medimetrics. Both opinion letters state that Respondent met the standard of care in the treatment, care, and diagnosis of D.Y. Respondent submitted both opinion letters into evidence against the interest of Petitioner. The expert opinions of Drs. Lohse and Rydell are not cumulative of the opinion of Respondent's expert witness, Dr. Snow. Only the opinions of Drs. Lohse and Rydell constitute exculpatory evidence developed by a prosecuting agency during the investigative phase of an administrative proceeding that is penal in nature. The expert opinions of Drs. Lohse and Rydell are not cumulative of each other. Each shows that the other is not an anomaly and that Petitioner had evidence of Respondent's innocence from two different sources that were separated by time and community.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED, that Petitioner enter a Final Order finding Respondent not guilty of the allegations in the Administrative Complaint and dismissing the Complaint. DONE AND ENTERED this 14th day of August, 2002, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 14th day of August, 2002. COPIES FURNISHED: William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701 Kim Kluck, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Bruce D. Lamb, Esquire Ruden, McClosky, Smith, Schuster & Russell, P.A. 401 East Jackson Street, 27th Floor Tampa, Florida 33602 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701 S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701
