Findings Of Fact I. The Respondent At all times pertinent to the charges, respondent held medical license No. ME 0025317 authorizing him to practice medicine and surgery in Florida. (P- 1) Respondent, a 52-year-old physician, attended medical school at the Montpellier University School of Medicine from 1961 to 1968, completed a one- year rotating clinical internship in Canada, then obtained his medical degree from Montpellier in 1971. He worked for the next two years as a medical assistant at University Hospital in Jacksonville, Florida, then worked one year as an assistant under the supervision of Dr. Sam Lamb, a Jacksonville physician. In 1972, respondent passed the ECFMG (Educational Council for Foreign Medical Graduates) qualifying examination, an examination foreign medical graduates must pass before becoming licensed in the United States. In 1974, he took the Florida Board of Medical Examiners' licensing examination, failed it, then took it again in 1975 and passed it. He is a member of the American Medical Association, Florida Medical Association, Duval Medical Society, and American Society of Bariatric Physicians. (Testimony of respondent; P-5) After receiving his Florida medical license in 1975, respondent opened an office for the general practice of medicine in Jacksonville, Florida. In December, 1976, he purchased the practice of Dr. Lyman J. Bolin, a recently deceased physician. (Testimony of respondent) For thirteen years, Dr. Bolin had specialized in bariatrics, 2/ the treatment of patients for obesity. When respondent purchased Dr. Bolin's practice, he received files of approximately 3,000 patients. Two of Dr. Bolin's physician trained medical assistants were retained by respondent after he observed their performance and confirmed their competence. He also adopted and continued to follow Dr. Bolin's customary office practice, as it was explained to him by Dr. Bolin's assistants. (Testimony of respondent; P-5) After taking over Dr. Bolin's practice in 1976, 25 percent of respondent's practice consisted of bariatrics, 75 percent was general practice. Gradually, the number of bariatric (weight-control) patients increased so that now they represent approximately 75 percent of his practice. (Testimony of respondent) Between October 17, 1979, and September 30, 1981, respondent purchased at least 1,001,000 tablets of phentermine and 1,010,300 tablets of phendimetrazine, both of which are scheduled controlled substances listed in Chapter 893, Florida Statutes (1981). He dispensed these drugs, as well as other controlled substances, to his patients for the purpose of treating obesity. The Department charges that respondent violated Chapter 458, Florida Statutes, by dispensing these drugs to patients without first performing an adequate medical examination. (Testimony of respondent; P-5) II. Respondent's Office Procedure When he took over Dr. Bolin's practice, respondent adopted an office procedure for treating new patients and follow-up visits, a procedure which he believed had been followed by Dr. Bolin. A new patient entering the office would be given a questionnaire and patient history form to complete. A medical assistant would take the patient's weight, blood pressure and pulse, then administer an EKG (electrocardiogram) and perform a hemoglobin (blood) test. The patient would then be taken to an examination room where respondent would review the patient's history, listen to the heart, lungs, examine the eyes with a light, and examine the abdomen. He would then tell the patient about food and cooking, how to make food tasty without large quantities of calories, the importance of dieting, and the importance of calories. The patient would be given paperback books and pamphlets on food preparation and calorie counting. Respondent would then explain what drugs the patient would be receiving, when they should be taken, and possible side-effects. He would then direct a medical assistant to dispense specific drugs to be taken, on a daily basis, during a four-week period. (Testimony of respondent) Medication dispensed to weight-control patients included Thyroid Extract (one grain daily), to enhance weight loss by increasing the metabolic rate; Phenobarbitol (a scheduled controlled substance), to help patients having difficulty sleeping because of the effect of other weight-control medications; diuretics, to rid the body of water buildup; and phentermine and phendimetrazine, to suppress the appetite. Phendimetrazine and phentermine should not be used by patients on tricyclic drugs or suffering from tachycardia, cardiovascular disease or depression. He also dispensed placebos, pills which had no direct weight-control or medical effects. (Testimony of respondent; P-5) Under respondent's standard office procedure, weight-control patients who returned for follow-up visits after exhausting their drug supply were taken to an examination room where medical assistants took their weight and blood pressure. 3/ Changes in these measurements were discussed with the patients and noted on their medical charts. If the medical assistants decided that respondent should see a patient, they would make a notation on the patient's chart. In most cases this notation was not made and follow-up patients were not seen or examined by respondent. After their weight and blood pressure were taken, most patients were told to wait in the reception room. Respondent would then review the patient's chart and decide whether to refill the prescription. If he decided a refill was appropriate, he would instruct a medical assistant to dispense another four-week supply of specified drugs. The patient, who was waiting in the reception room, would then be handed the drugs by a receptionist. Instructions on how to take the medications were affixed to the drug container. The usual charge for these visits, including drugs, was approximately $30.00. (Testimony of respondent, Hullender, Miller, Johnson; P-5) The Department relies on respondent's tea of three patients -- Deborah Hullender, Julia Miller and Geraldine Johnson -- in support of its charge that respondent engaged in a continuous course of conduct of dispensing medication, including controlled substances, without performing adequate medical examinations upon his patients. (Second Amended Administrative Complaint, Count I) Deborah Hullender. Ms. Hullender first visited Dr. Bolin, respondent's predecessor, as a weight control patient in 1976. On her initial visit, Dr. Bolin gave her a complete physical examination (.although omitting a blood test), then dispensed weight-control drugs. After Dr. Bolin's death, she became respondent's patient. Between 19-76-and 1981, he dispensed weight control drugs to her from one to four times a year. During her. visits to his office, she never saw him. Neither did she receive another physical examination. Typically, on arriving at his office, she would be weighed and her blood pressure would be taken by a medical assistant. She would then be given weight-control drugs. (She does not recall ever being asked whether she had experienced side-effects from the drugs.) She paid $20.00 a visit, which included the drugs. Until September, 178, respondent dispensed amphetamines to her. After that dated he dispensed phentermine, phendimetrazin, diuretic tablets, thyroid tablets, and placebos, to her, (Testimony of Hullender, respondent; P-5, P-8, P-10) Julia E. Miller. On May 11, 1979, Ms. Miller, a law enforcement officer with the Jacksonville Sheriff's Office, entered respondent's medical office in an undercover capacity. Her purpose was to obtain scheduled controlled substances for weight control. (She had a history of obesity and was on medication for high blood pressure.) Approximately 20 people were in the waiting room. Posing as a patient, she gave the receptionist her name and told her, falsely, that she had an appointment. When the receptionist. replied that she had neither a record of the appointment nor a patient file, Ms. Miller became indignant and--in an attempt to intimidate the receptionist--asked, "Does this happen often?" (Tr. 54) She also told the receptioniste that she had been coming there a year, that she had not been there in a couple of months, and that she had come now because she was gaining weight and [had] run out of pills." (Tr. 39) The receptionist asked her to put her name, address and phone number on a blank medical history form. (Subsequently, someone placed the notation, "misplaced file," on this incomplete form A few minutes later, Ms. Miller was escorted to another room where a medical assistant took her weight and blood pressure. She asked the assistant if she could have some stronger pills because the earlier pills had not had the desired weight-loss-effect. The assistants-- without asking about any possible side-effects from the unidentified pills she had been taking--replied in the affirmative. Ms. Miller returned to the waiting room. When she was called to the receptionist's window, she asked if she could have a two-month supply of pills. The receptionist agreed and gave her a two- month supply of diet pills, including two grains of thyroid daily, one diuretic every other day, and two tablets) of phentermine daily. Ms. Miller was charged $40.00 for the visit, including the drugs. (Testimony of receptionist, Miller; P-2) Respondent denies any knowledge of this incident. He denies having seen the patient history form completed by Ms. Miller, and denies having authorized the dispensing of drugs. He asserts that, without more information than was on the history form, he would not have authorized the dispensing of drugs. (Tr. 258) Respondent's denial is accepted as persuasive. The Department has not established, by the requisite quantum of evidence, 4/ that he authorized the dispensing of the four-week supply of drugs to Ms. Miller after reviewing an incomplete patient history form. It has not been proven that respondent saw Ms. Miller's incomplete history form, made any notation on it, or orally authorized the dispensing of drugs to her. The undisputed fact that the receptionist gave Ms. Miller the requested weight-control drugs does not -- standing alone -- establish that respondent authorized, or even knew of the transaction. This is especially so when, as here, the transaction deviated from his normal practice in two significant respects. First, respondent ordinarily had the patient's full medical chart before him when he authorized the dispensing of weight-control drugs; here, he had only a partially completed patient history form. Second, Ms. Miller was given a two-month supply of drugs -- respondent ordinarily authorizes only a one- month supply. (Testimony of respondent, Miller; P-2, P- 3, P-5) (c) Geraldine Johnson. On August 11, 1982, Ms. Johnson, a Department investigator, telephoned respondent's office, stated that her name was Johnson, and asked when she had last visited. (Her purpose was to determine whether respondent had a patient named "Johnson," whose identity she could assume.) The person answering the phone asked if her name was "Betty Johnson." Investigator Johnson, who quickly decided to assume that name, acknowledged that she was Betty Johnson and asked what her weight had been on her last visit. (Her purpose was to see if her weight and the weight of the real "Betty Johnson" were similar.) She was told that Betty Johnson's last weight entry (in March, 1982) was 172 pounds. (Although investigator Johnson believed her own weight to be 160 pounds, her subsequent visit to respondent's office revealed that she weighed 173-1/2 pounds.) Investigator Johnson then made an appointment, under the name of Betty Johnson, for later in the day. On arriving at respondent's medical office and identifying herself as Betty Johnson, investigator Johnson was escorted to a back room where a medical assistant took her weight and blood pressure, and noted them on Betty Johnson's medical chart. The assistant mentioned to investigator Johnson that she had lost some weight but that her blood pressure was a little high, then told her to return to the reception room. Investigator Johnson was not examined by respondent, although she saw him on the premises. The medical assistant did not examine her heart or lungs, take her pulse, or question her about her medical history. After a short time in the waiting room, the receptionist handed her a container of pills, including 28 thyroid tablets (blue), 29 phendimetrazine tablets (yellow), 28 phendimetrazin tablets (gray), 28 phendimetrazin tablets (pink and white), 27 phentermine tablets (.green and white), and 25 phentermine tablets Red and black). Investigator Johnson then paid the receptionist $20.00. Betty Johnson's medical record indicates that Dr. Bolin gave her a physical examination when she first came under his care. for weight control in June, 1975. She made frequent follow-up visits to his office: in 1975, five visits; in 1976, three visits. Respondent then took over Dr. Bolin's practice. In 1977, she made seven visits; in 1978, six visits; in 1979, one visit; in 1980, two visits; and in 1981, three visits. Respondent saw her but once -- in 1977 -- when he listened to her heart. (Testimony of respondent, Johnson; P-3, P-5) III. Respondent's Failure to Practice Medicine in Accordance with Prevailing and Acceptable Standards Guy T. Selander, M.D., and Samuel J. Alford, M.D., are physicians who have practiced family medicine or general practice in Jacksonville, Florida, for approximately 20 and 30 years, respectively. They are aware of the kind of physical examination which, under prevailing and acceptable community medical standards, is required before physician prescribes phentermine or phendimetrazine to a patient for weight loss or obesity. control. They are certified in family practice, a specialty which includes treating for obesity, and are accepted as reasonably prudent similar physicians within the meaning of Section 458.331(1)(t), Florida Statutes (1981). ($-7, P-.9) Their testimony establishes that minimal acceptable and prevailing community medical standards require that a physical examination be administered to a new patient before prescribing phentermine or phendimetrazine. This examination consists of taking a detailed medical history, and checking the patient's heart (including an EKG), lungs, and hemoglobin. Respondent's office procedure meets this community medical standard, (Testimony of respondent; P-7, P-9) The evidence does establish, however, that there were two instances where respondent violated both his office procedure and the prevailing community medical standard. Between 1977 and 1981, he dispensed to Debbie Hullender and Betty Johnson--both under his continuing care for obesity control--phentermine and phendimetrazine, without first having given them physical examinations. (Testimony of Hullender, respondent; P-3) The testimony of Doctors Selander and Alford also establishes the minimal acceptable and prevailing community medical standard concerning the type of examination which must be performed on a follow-up patient prior to prescribing or dispensing phentermine or phendimetrazine for weight-control. This standard requires the physician to see the patient at intervals not exceeding 60 days. During those visits, the patient's weight, pulse, and blood pressure are taken and the physician questions-the patient to discern any possible side-effects from drugs prescribed earlier. (P-7, P-9) Respondent--both in his routine office procedure and in the specific care he gave Debbie Hullender and Betty Johnson --violated this minimal acceptable and prevailing community medical standard. (Testimony of respondent, Hullender, Johnson, P-7, P-9) Respondent's testimony that his medical care complied with the minimal prevailing and acceptable community medical standards is rejected as self- serving and uncorroborated by independent and substantial evidence. The testimony of a pharmacist that unnamed physicians have sometimes authorized the refill of a phentermine or phendimetrazine prescription--without seeing the patient--establishes only that there may be one or more other physicians in the Jacksonville area who have violated the prevailing and acceptable community medical standards. (Testimony of respondent, Langston)
The Issue Whether disciplinary action should be taken against Dr. Vizcarra's Florida license to practice medicine for violating Sections 458.33l(1)(m), (q) and/or (t), Florida Statutes, as alleged in the Administrative Complaint against Dr. Vizcarra?
Findings Of Fact The Petitioner is the state agency charged with the responsibility to prosecute administrative complaints against licensed physicians in the State of Florida. Eulogio Vizcarra, M.D., is, and has been at all times relevant to this proceeding, a licensed physician in the State of Florida. Dr. Vizcarra's license number is ME 0030012. On January 2, 1984, Dr. Vizcarra saw patient S.L. for the first time. S.L. was diagnosed by Dr. Vizcarra as suffering from tension headaches and hypertension. Dr. Vizcarra continued to see S.L. from January, 1984, until at least June 6, 1987. Throughout the period of time that Dr. Vizcarra treated S.L., including the period of June 14, 1986, through June 6, 1987, S.L. complained of, and was diagnosed as suffering from, numerous ailments, including hemorrhoids, nasal conjunction, lacerations, back pain, abdominal cramps, sore throat, diarrhea, gastrointestinal bleeding, laryngitis, chest pain, tooth ache, rhinitis, upper respiratory tract infection, viral syndrome, impotence and a ganglion cyst. During the time that Dr. Vizcarra treated S.L., including the period of June 14, 1986, through June 6, 1987, S.L. was seen by Dr. Vizcarra and other physicians on numerous occasions. The primary and most repeated diagnosis of S.L. by Dr. Vizcarra during the period of time that Dr. Vizcarra treated S.L. was migraine headaches and hypertension. In January of 1984, when S.L. first saw Dr. Vizcarra, S.L. was initially given Amitriptyline, a prophylactic drug, for his migraine headaches. The use of Amitriptyline, or other prophylactic drugs, was not continued by Dr. Vizcarra in his treatment of S.L., however. In April, 1984, Dr. Vizcarra referred S.L. to Dr. Kohler, a neurologist, for tests concerning S.L.'s migraine headaches. Dr. Vizcarra also referred S.L. to Dr. Loucshmann (phonetic) in April, 1984, for treatment of his migraine headaches and his hypertension. Neither physician continued to see S.L. after April, 1984. Dr. Vizcarra referred S.L. to other physicians: (1) Dr. Hernandez saw S.L. in May, 1986, for hemorrhoids; Dr. Baker, a cardiologist, saw S.L. in July, 1986, for chest pain; (3) Dr. Desai, a general surgeon, saw S.L. in August, 1986, for hemorrhoids and in June, 1987, for abdominal pain; and (4) Dr. Bonzon saw S.L. from January, 1987, through April, 1987, for the removal of a ganglion cyst. Dr. Vizcarra did not, however, refer S.L. to any other physician after April, 1984, for treatment of, or testing concerning, S.L.'s migraine headaches. During the period of time from June 14, 1986, through June 6, 1987, S.L. also was seen by various emergency room physicians, including Dr. Sklar, Dr. Amadio and Dr. Adams. All of these physicians listed Dr. Vizcarra as the "family physician" or as the "physician notified" on their record of S.L.'s visit. Finally, S.L. was seen in July and August, 1986, by Dr. Adom. Dr. Vizcarra's medical records concerning S.L. include information concerning S.L.'s treatment by the physicians listed in findings of fact 9-12. During the period of time from June 14, 1986, through June 6, 1987, Dr. Vizcarra prescribed over 60 injections of Talwin, Nubain and Stadol for S.L. S.L. also received injections of these drugs from some of the other physicians S.L. was seen by during this period of time. S.L. was also given approximately 25 to 30 prescriptions for Tylox and Darvocet, as well as other analgesic medications, during the period of time at issue in this proceeding. S.L. also received prescriptions for these drugs from some of the other physicians S.L. was seen by during this period of time. Talwin, Nubain, Stadol, Tylox and Darvocet (hereinafter referred to as the "Five Legend Drugs") are narcotic analgesic medications. They are all legend drugs and have the potential for addiction. Dr. Vizcarra indicated that he prescribed the Five Legend Drugs given to S.L. in order to relieve the pain that S.L. was suffering from. The rapid relief of pain with narcotic analgesics is acceptable only on an infrequent basis. Dr. Vizcarra's use of the Five Legend Drugs during the period of June 14, 1986, through June 6, 1987, was excessive. Dr. Vizcarra's use of the Five Legend Drugs during the period of June 14, 1986, through June 6, 1987, constituted an inappropriate use of legend drugs. Dr. Vizcarra failed to provide proof that he made an adequate medical assessment of S.L.'s condition or the possible consequences of S.L.'s exposure to the Five Legend Drugs prescribed for him by Dr. Vizcarra or the other physicians who treated S.L. from June 14, 1986, through June 6, 1987. The medical records maintained by Dr. Vizcarra fail to justify his treatment of S.L. during the period of June 14, 1986, through June 6, 1987. Dr. McCoy's testimony concerning whether Dr. Vizcarra's treatment of S.L. constituted a violation of Section 458.331(1)(t), Florida Statutes, was based upon Dr. McCoy's review of Dr. Vizcarra's medical records. Dr. Vizcarra provided further details concerning his treatment of S.L. during the hearing which were not included in his medical records. Dr. McCoy did not hear this testimony. Therefore, Dr. McCoy's opinions concerning whether Dr. Vizcarra's treatment of S.L. constituted a violation of Section 458.331(1)(t), Florida Statutes, did not take into account all of the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Eulogio Vizcarra, M.D., be found guilty of having violated Sections 458.331(1)(m) and (q), Florida Statutes. It is further RECOMMENDED that the portion of the Administrative Complaint against Dr. Vizcarra alleging that he violated Section 458.331(1)(t), Florida Statutes, be dismissed. It is further RECOMMENDED that Dr. Vizcarra be subjected to the following penalties: Payment of an administrative fine in the amount of $2,500.00; Placement on probation for a period of one year. Dr. Vizcarra should be placed under the indirect supervision of a Board of Medicine physician who should receive copies of all prescriptions for controlled substances written by Dr. Vizcarra during his probation. Quarterly reports should be made by the monitoring physician to the Board of Medicine's probation committee; and Attendance of twenty-one hours of Continuing Medical Education in courses concerning appropriate drug prescribing, in addition to Continuing Medical Education hours required for license renewal. DONE and ENTERED this 24th day of April, 1989, in Tallahassee, Florida. LARRY J. SARTIN 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 24th day of April, 1989. APPENDIX The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 2. 2 14, 16 and 18. 3 This summary of testimony supports findings of fact 15-18. 4-5 Argument and summary of positions. 6 19. COPIES FURNISHED: Joseph Harrison Senior Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 John R. Weed, Esquire 605 South Jefferson Street Perry, Florida 32347 Ms. Dorothy Faircloth Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth Easley General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The ultimate issues to be resolved in these proceedings are whether the Respondent has committed violations of statutory provisions relating to the practice of medicine and, if so, the appropriate penalty that should be imposed. The allegations in Case No. 81-2576 are that the Respondent signed an affidavit to the effect that another individual had graduated from a medical school and practiced medicine, when in fact the information was false and the Respondent had no knowledge of the facts. Respondent contends that her signing of the form under the facts of this case does not constitute a violation of any statutory provisions. In Case No. 82-1730, it is alleged that the Respondent submitted a false statement of claim to receive reimbursement for services rendered to a Medicare patient. Respondent contends that to the extent the statement of claim that she submitted was in error, the error was the result of a mistake rather than any fraudulent practice.
Findings Of Fact At all material times, the Respondent has held a license issued by the Board of Medical Examiners to practice medicine in the State of Florida. The Respondent was born in Cuba. She received her medical degree and completed her medical internship in Cuba. She escaped from Cuba in 1973 and came to the United States. She has been licensed to practice medicine in Florida since on or about September 13, 1978. It does not appear that the Respondent has been the subject of any disciplinary action brought by the Petitioner prior to these proceedings. Findings of Fact Respecting Case No. 81-2576: Sometime prior to March 5, 1980, the Respondent met Richard Hervis at a seminar she was attending. On March 5, Hervis asked the Respondent to sign a form for him. He told her that he needed to use the form in order to clear up some paperwork that he was having difficulty with in the Dominican Republic. Hervis told her that he had attended medical school in the Dominican Republic and practiced medicine there and that he was having trouble getting his records in the Dominican Republic straightened out. Another physician who also attended the seminar told the Respondent that he had seen Hervis's diploma from the medical school in the Dominican Republic. The Respondent signed the form. A copy of the form that the Respondent signed is attached to this Recommended Order as an appendix. The form is designated "Form B-1." It is directed to the Director of the Office of International Medical Education at the University of Miami School of Medicine. The form was developed and used by the Florida State Board of Medical Examiners in order to verify the education and experience of Cuban physicians. The form served to allow Cuban physicians to be certified to take a continuing education course at the University of Miami. Successful completion of the course would allow an applicant for licensure to take the examination administered by the Board of Medical Examiners. If successful on the examination, the applicant would be eligible for licensure as a physician in Florida. The Respondent was familiar with the form. Several were filled out on her behalf when she applied for licensure in Florida. Hervis told the Respondent, however, that he was using the form for a separate purpose, that being to clear up his records in the Dominican Republic. At the time that the Respondent filled out the form, several of the blank spaces on it had not yet been filled in. Furthermore, the form had not been notarized. Hervis advised the Respondent that since he was using the form in connection with his records in the Dominican Republic, he did not need to have the form notarized. After the Respondent signed the form, Hervis, or someone acting on his behalf, filled in the blanks with dates that would support his eligibility for licensure as a physician in Florida and had the form notarized. On March 12, 1980, Hervis submitted the form along with an application for licensure to the Florida State Board of Medical Examiners. As submitted to the Board, the affidavit appears to be a sworn statement from the Respondent certifying that Hervis graduated from a university in the Dominican Republic and was engaged in the practice of medicine in the Dominican Republic. The form further certifies that the Respondent was acquainted with Hervis since 1970 and that she was engaged in the practice of medicine in the Dominican Republic during the years 1970 to 1979. The Respondent actually knew nothing of Hervis's schooling or medical experience, and she never practiced medicine in the Dominican Republic. Hervis was not in fact a graduate of the Dominican university as set out in the affidavit. At the time Respondent signed the form, it did not contain all of the statements that were included when it was submitted to the Board of Medical Examiners. It was not intended by the Respondent that the form be used by Hervis in support of an application to the Board of Medical Examiners. It was not her intention to assist Hervis in obtaining licensure as a physician in Florida. Her only intention was to do Hervis a favor by assisting him to clear up his records in the Dominican Republic. While the signing of the affidavit with blank spaces on it was clearly careless, it was not done with any intention to commit a fraud or to mislead anyone, although that would appear to have been Hervis's intention. Based upon his application for licensure which included the affidavit, Hervis was certified to sit for the examination for licensure. He failed to pass the examination by a small margin. In the meantime, the Board of Medical Examiners learned that he apparently was not eligible for licensure. Hervis has never become licensed to practice medicine in Florida. His present whereabouts are unknown. Findings of Fact Respecting Case No. 82-1730: The Respondent maintains regular office hours at a clinic known as the "Wholistic Health Center" located in Tamarac, Florida. The clinic follows a philosophy of healing that is cross-disciplinary. The practices of medicine, chiropractic, physical therapy, and other techniques are utilized. A chiropractic physician, Daniel L. Guzy, is the principal person who operates the clinic. When the Respondent is present at the clinic, she uses the clinic's offices and personnel, including Guzy, and the clinic's equipment. The clinic frequently services Medicare patients. Chiropractors are able to directly bill the Medicare system only for chiropractic adjustments that they perform. If other techniques, such as physical therapy techniques, are employed, these services must be billed by a physician. If a physician uses a therapist to perform these services, the physician would be responsible for paying that person. Albert Brown, then age 70, was injured in a fall from a ladder on September 13, 1981. The injuries caused him severe pain; and on the suggestion of a neighbor, he decided to visit a chiropractor. The Wholistic Health Center was located in the same shopping center where Brown maintained his business, a travel agency. On September 14, Brown contacted Guzy and arranged to visit the clinic. When Brown visited the clinic, he met Guzy, who conducted a thorough examination. Brown was interested in receiving medication for the pain that he was suffering. The Respondent was present at the clinic when Brown first visited it. After Guzy examined the patient, he consulted with the Respondent about appropriate treatment. The Respondent saw Brown and took a patient history. She diagnosed him as having suffered spinal nerve damage and devised a plan of treatment which included a prescription for the drug Percodan to alleviate pain, X rays, and physical therapy. She specifically directed that three sets of x rays be taken and that twelve sessions of physical therapy be scheduled. She communicated her diagnosis and recommended treatment to Guzy and gave the prescription to Brown. Brown signed a "Request for Medicare Payment" form. He returned to the clinic on September 15, 17, and 22. On these occasions, he received physical therapy treatments from Guzy and chiropractic treatments from Guzy. Guzy billed Medicare directly for the chiropractic treatment that he administered. The Respondent billed Medicare for her examination of Brown, the X rays that she directed be taken, and the physical therapy treatments that she prescribed. Brown became dissatisfied with the treatment program and did not complete the physical therapy sessions. Because of that, all of the X rays that the Respondent directed were not taken. In fact, only one set of X rays was taken. The bill that the Respondent submitted to Medicare included charges for the initial office visit, three sets of X rays, and three physical therapy treatments. The bill was prepared by a billing service utilized by the clinic and signed by the Respondent. It appears that the charges for three sets of X rays were the result of an understandable mistake. The Respondent did direct that the X rays be taken, but they were not. They were not taken in part because the patient was suffering severe pain, and in part because he did not complete the therapy program. The bill could be read in such a manner as to reflect treatment for "diabetes" and "headaches." In fact although the conditions were part of the Respondent's diagnosis, based on the patient's history, they were not the conditions for which the patient was treated. The "Procedure Code" on the bill sent to Medicare substantiates that the bill that was submitted was for an office visit, X rays, and physical therapy sessions. When Brown received a copy of the bill that was submitted to Medicare, he read it and was persuaded that Medicare was being billed for services that were not rendered. He complained to the Blue Cross/Blue Shield office which administers Medicare claims. The Respondent's bill was paid by Medicare, but she was asked to return most or all of it, which she did. It appears that the only portion of the bill to Medicare that was in error is the bill for three sets of X rays. That error was the result of a mistake, and not the result of any effort by the Respondent to commit any fraud or misrepresentation. It appears that the physical therapy administered by Guzy was undertaken on the Respondent's instruction and authorization. Although she was not present physically while that therapy was administered, it was done clearly at her direction.
