Findings Of Fact At all times relevant hereto, Lawrence A. Decker was licensed as an osteopathic physician in Florida. On November 18, 1980, D. K. was admitted to Sun Coast Osteopathic Hospital, with an admitting diagnosis of acute generalized anxiety disorder, under the care of Dr. Kaye, a psychiatrist. On her initial examination, she complained of severe menstrual cramping. She was referred to an internist and a gynecologist (Respondent). Exhibit 1). At her gynecology examination, D. K. gave a history of pain in the right lower quadrant of her abdomen shortly following a tubal ligation some six years earlier. She had visited three gynecologists in the intervening years and had been treated with medication (Estrace, Valium and Progesterone) by one of these gynecologists without significant improvement in her symptoms; one suggested she had a prolapse, a hysterectomy was indicated and Tranxene was prescribed; and a third physician stated she had a sore muscle on her right ovary, but no therapy was suggested. Respondent suggested a hysterectomy might relieve the menstrual cramps, but was unlikely to improve her anxiety disorder unless that was brought on by the dysmenorrhea. D. K. talked to her husband and then told Respondent she would like to have the hysterectomy during her current admission rather than be discharged and return at a later date. After concluding D. K. was capable of consenting to the surgery, the hysterectomy was scheduled for November 24, 1980. In Dr. Joyes' hospital notes (Exhibit 1), an entry dated November 21, 1980 states in part: "Anxiety re surgery. Feels her problems are due to physical causes." November 22, 1980 entry: "States relief decision made to have surgery (hysterectomy) scheduled for Monday." November 23, 1980 entry: "Patient expresses anxiety re A.m. surgery. Able to understand others and is supportive to their needs. Lacks emotional insight into her own." Nurses notes in Exhibit 1 (page 61) for November 22, 1980 reads: "Attended group session . . . Participated very well. Appears more relaxed and comfortable this evening." Nurses notes for November 23, 1980 read: "Good participation during group. Insight into other's problems good. Nothing specific to solving own anxieties offered except surgery." At no time did Dr. Joye conclude that D. K. was unable to fully and knowingly consent to the surgery that was performed by Respondent on November 24, 1980. Petitioner's witness, Dr. Eli Rose, opined that D. K. was unable to give informed consent to the surgery based upon her admitting diagnosis of acute anxiety reaction and Dr. Joye's comment in Exhibit 1 (finding 5 above) "that [she] lacks emotional insight into her own." He also opined that from the symptoms of D. K. as contained in the patient records there was insufficient medical justification for the hysterectomy performed. Dr. Rose was also perturbed that the operation was scheduled so quickly, disregarding (or not knowing) that D. K. had requested the surgery be performed during that hospitalization. Before becoming aware that a second surgeon assisted Respondent in performing this hysterectomy, Dr. Rose opined that the length of the operation, forty-five minutes, was too short a time for this procedure to be safely and adequately performed. After learning that another surgeon assisted Respondent, Dr. Rose backed away from this position. After this case was referred to Dr. Rose for consultation, he became aware that he was D. K.'s physician two years earlier who had treated D. K.'s symptoms with medication. In addition to his own testimony, Respondent presented two gynecologists, one board certified and the other board eligible. Dr. Broadnax reviewed the patient records of D. K. and the depositions of other witnesses. He opined that in the treatment of D. K., Respondent exercised the level of care, skill and treatment which is recognized by a reasonably prudent similar osteopathic physician as acceptable under similar conditions and circumstances. The parties stipulated if Dr. Rothman, a board certified gynecologist, was called he would testify that in the treatment of D. K., Respondent exercised the care, skill and treatment which is recognized by a reasonably prudent osteopathic physician as acceptable under similar conditions and circumstances. With respect to the charge involving inadequate record keeping, no creditable evidence was presented to support this charge. Petitioner's only witness acknowledged that he was unaware there is a standard of care for the keeping of medical office records.
The Issue The issue posed herein is whether or not the Respondent's Osteopathic Physician License should be suspended, revoked or otherwise disciplined based on conduct, which will he set forth herein in detail, as set forth and defined in the administrative complaint filed herein on September 30, 1980.
Findings Of Fact Respondent, during times material, has been an Osteopathic Physician who has been issued License No. 0003850. On or about April 17, 1978, Respondent, Joel Z. Spike, entered into a Consent Agreement with the Board of Osteopathic Medical Examiners, hereinafter referred to as the "Board", the terms of which provided that if the Respondent complied with certain conditions precedent and subsequent to the issuance of a license, that the Board would issue to Respondent a one-year probationary license to practice osteopathic medicine within the State of Florida. Under the terms of the Consent Agreement, Respondent's failure to satisfy any of the conditions subsequent to the issuance of the probationary license would result in an automatic suspension of such license. The Consent Agreement was entered as a final order of the Board. (Petitioner's Exhibit 1). Respondent satisfied the conditions precedent and the Board issued the Respondent a probationary license on April 27, 1978. 2/ On March 28, 1979, it is alleged that Respondent failed to satisfy one of the conditions subsequent to the Consent Agreement of April 17, 1978 by his (Respondent's) failure to make a required annual appearance before the Board to demonstrate his physical and mental condition and ability to practice osteopathic medicine with reasonable skill and certainty. It is thus alleged that pursuant to the terms of the Consent Agreement and order of April 17, 1978, Respondent's license was automatically suspended. 3/ On March 28, 1979, Respondent and the Board entered into a second Consent Agreement under the terms of which Respondent agreed to cease and desist from the practice of osteopathic medicine in this State until such time as the Respondent could make a personal appearance before the Board, such appearance being an unsatisfied condition subsequent or required by the first Consent Agreement entered by and between the parties dated April 17, 1978. Respondent signed the second Consent Agreement which was entered as a final order from the Board and became effective April 24, 1979. On July 18, 1979, August 1, 1979, September 19, 1979, September 25, 1979, July 24, 1979, October 8, 1979, November 5, 1979, October 31, 1979, and October 22, 1979, Respondent wrote prescriptions for Percodan tablets to one Eliot Schuler. Petitioner alleges that such conduct constituted the practice of osteopathic medicine as to Eliot Schuler, without an active license, and while Respondent's license was suspended in violation of Section 459.013(1)(a) and (b) Florida Statutes (1979), and the provisions of Section 459.015(1)(x), Florida Statutes (1979). 4/ Respondent disputes the allegations that he wrote prescriptions for Percodan tablets to Eliot Schuler without an active license to practice osteopathic medicine. On April 9, 1980, in the Circuit Court for the 11th Judicial Circuit, Respondent pled nolo contendere to all counts of an eight-count information alleging two counts of the unlawful practice of medicine and six counts of sale or delivery of a controlled substance. Respecting this plea, the court withheld adjudication and Respondent was placed on probation initially for a period of eighteen (18) months. Petitioner thus alleges that Respondent thereby violated Section 459.015(1)(c), Florida Statutes (1979). Respondent defends the complaint allegations on the basis that the Board did not automatically suspend his license since he provided the Board with ample notice and a justifiable reason for his failure to attend the required annual appearance as set forth in the April, 1978 Consent Agreement. (Petitioner's Exhibits 1 and 2). In this regard, it is undisputed that the Respondent entered a plea of nolo contendere to two counts of the unlawful practice of medicine and six counts of the sale or delivery of a controlled substance in violation of Chapters 458.327, 459.013 and 893.13, Florida Statutes. Respondent was initially placed on probation for an eighteen month period and an order of modification was subsequently entered which changed his probation from reporting to non-reporting. (Petitioner's composite Exhibit 3). It is also undisputed that the Respondent was advised by Petitioner's Executive Director of the reporting requirements (annually) which was entered by Petitioner and Respondent on April 17, 1978. (Petitioner's Exhibit 4). In this regard, Respondent's prior counsel, Phillip J. Mandina, requested a continuance of the Board's annual meeting to consider Respondent's probationary licensing due to his confinement in a hospital in Miami, Florida. (Petitioner's Exhibit 5). Documentary evidence introduced and received herein reveals that Respondent was a patient at the emergency room at Biscayne Medical Center on January 26, 1979 with a diagnosis of multiple trauma as a result of an automobile accident. Emergency room record notations reveal that Respondent had taken 150 milligrams of Demerol earlier on the 26th of January, 1979 and he had in his possession one empty thirty cc vial of Demerol 50 milligrams/cc and one 20cc vial of Demerol 100 milligrams/cc of which there were approximately 9cc's remaining. A consulting psychologist and an orthopedic surgeon who attended Respondent during his visit at Biscayne Medical Center concluded that Respondent suffered from severe chronic drug addiction and should receive proper treatment for this disease prior to any resumption of treating of patients. (Petitioner's composite Exhibit 6). Respondent submitted a renewal fee of $85.00 for the renewal of his osteopathic medical examiner's license. By letter dated August 28, 1980, the Board's Executive Director, Dorothy Faircloth, notified the Administrator for the Office and Records Administration, Charles R. Beck, that Respondent should not have been allowed to renew his license under the terms of the subject Consent Orders and requested that Respondent return the license issued. It was also indicated that a $85.00 refund would be processed and forwarded to Respondent within approximately four weeks. (Petitioner's Exhibit 7). Finally, Respondent contends that even though he was of the opinion that he possessed an active license, he would not actively engage in the practice of medicine. Respondent is presently involved in a marriage counseling practice and his ultimate goal is that of teaching and conducting therapy sessions. To support his position that he still possessed a license to practice medicine, Respondent pointed out that when he submitted his renewal fee, his license was issued and no action was taken by the Board to retrieve his license until approximately September 12, 1980. Respondent avers that that was his first notice that the Board considered his license suspended due to his failure to appear before the Board annually as per the April 17, 1978 Consent Agreement. Respondent urges that he felt that the request from his former counsel for an abatement of the annual review proceedings of his probationary status had been received and granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That Respondent's license to practice osteopathic medicine be suspended for a period of two (2) years from the date that the Board takes final agency action. RECOMMENDED this 12th day of March, 1981 in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1981.
The Issue Whether Petitioner's license as an Osteopathic Physician in the state of Florida should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary adduced at the hearing, the following relevant facts are found: Respondent is, and has been at all times material hereto, a licensed osteopathic physician in the State of Florida, having been issued license number OS 0003822. Respondent's last known address is 1804 Nelson Street, No. 15, Ormond Beach, Florida 32074. From on or about July 17, 1985, until on or about April 28, 1987, Respondent diagnosed patient L.K. as suffering from, and rendered medical care and treatment for, juvenile fibromatosis or fibromatosis colli. Juvenile fibromatosis and fibromatosis colli are conditions characterized by the occurrence of multiple fibromas. Fribromas are benign (non- malignant) neoplasms. On or about July 17, 1985, Respondent executed a letter which was sent to the Exceptional Student Education Services section of the School Board of Volusia County (School Board) wherein Respondent represents that the patient L.K. "is being treated for a malignancy of the neck, etiology undermined." On or about August 22, 1986, Respondent executed a letter intended to allow the patient L.K. to avoid required immunization wherein Respondent represents that patient L.K. "...has a malignancy which was not identified by multiple biopsy." The representations made to the School Board in his letters of July 17, 1985, and August 22, 1986, were made in Respondent's practice of Osteopathic Medicine. Only one biopsy of the patient's neck mass was performed prior to Respondent's letter of August 22, 1986, to the School Board. This biopsy was performed during March of 1980 by Gary Horndeski, M.D. The pathology report concerning this biopsy was not received by Respondent until March 18, 1987. The patient's neck mass had not been subjected to multiple biopsy as represented by the Respondent on August 22, 1986. The Respondent's representations in the August 22, 1986 letter were deceptive, untrue, and fraudulent. The medical records of Respondent fail to document that Respondent performed multiple biopsies on the mass. Respondent has failed to keep written medical records justifying the course of treatment of the patient, including but not limited patient histories, examination results, and test results. Respondent prescribed, dispensed or recommended BHI Regeneration, Polyzyme 022 and Vitamin C 500 mg tablets to patient L.K. On or about November 21, 1986, Respondent executed three separate forms authorizing the administration of BHI Regeneration, Polyzyme 022 and Vitamin C to patient L.K. by school personnel of Volusia County, indicating that he had ordered the administration of these substances as a "part of scheduled med program." BHI Regeneration and Polyzyme 022 are "drugs" as defined by Section 499.003(8), Florida Statutes. Respondent failed to note in patient L.K.'s medical records his prescribing, dispensing or recommendation of BHI Regeneration and Polyzyme 022. Respondent's written medical records fail to document "informed consent" to the drug therapy initiated including medically acceptable alternative procedures or treatments. The preferred course of treatment for a mass of the size and location as existing on patient L.K. would be surgical intervention. Respondent's written medical records fail to adequately document the reason for not following the preferred course of treatment (surgery), that surgery was discussed with the patient's parents, or that the parents declined surgery. Respondent's entry for March 10, 1987, in the medical record of patient L.K. indicates "recommend to get physiotherapy in lieu of surgery." Respondent's medical records fail to justify the course of treatment of the patient, including but not limited to patient histories, examination results, and test results. A reasonably prudent similar physician under similar conditions and circumstances would have referred patient L.K. to a specialist or obtained a consultation with a specialist. Respondent failed to do so. A reasonably prudent similar physician under similar conditions and circumstances would not have recommended that patient L.K. not receive standard immunizations nor would such a physician have executed a school form allowing patient L.K. to be exempted from required immunizations. A reasonably prudent similar physician would have obtained and reviewed prior biopsy report or conducted a biopsy on patient L.K. soon after undertaking the care of the patient. Respondent has failed to practice osteopathic medicine with that level of care, skill and treatment which is recognized by a reasonably osteopathic physician as being acceptable under similar conditions and circumstances. On or about April 7, 1987, the Board of Osteopathic Medical Examiners issued a Subpoena Duces Tecum commanding Respondent produce for copying and inspection any and all medical records of patient L.K. On or about May 8, 1987, the aforementioned subpoena was served on Respondent to produce copies of any and all medical records of patient, L.K., on May 10, 1987, at 6501 Arlington Expressway, Jacksonville, Florida. Respondent did not file a challenge or object in any fashion to the subpoena. As a result of the Petitioner filing a petition for enforcement of the subpoena, Respondent furnished to Petitioner what was purported to be the medical records of patient L.K., and did not in any way advise Petitioner that there were certain records pertaining to L.K. that he did not consider medical records. The medical records of patient L.K. submitted by Respondent in response to the subpoena were incomplete. Respondent's license to practice osteopathic medicine in the state of Florida was disciplined by the Board of Osteopathic Medical Examiners (Board) by its final order issued on April 19, 1988, wherein Respondent's license was suspended for one year; to be followed by a three year period of probation.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Board enter a Final Order finding Respondent guilty of violating Section 459.015(1)(n), (p), (y) (cc), Florida Statutes (1989), as set forth in Counts I, III, IV and V of the Second Amended Administrative Complaint, as amended, and for such violation, considering the guidelines for imposing penalties set forth in Rule 2IR-19, Florida Administrative Code, and the aggravating or mitigating circumstances allowing the Board to deviate from those guidelines set forth in Rule 2IR-19, Florida Administrative Code, it is RECOMMENDED that Respondent's license to practice osteopathic medicine in the State of Florida be suspended for one year subject to the terms and conditions the Board deems appropriate for reinstatement. It is further RECOMMENDED that Count II be DISMISSED. Respectfully submitted and entered this 27th day of October, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 27th day of October, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-0308 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on the proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner 1-26. Adopted in Findings of Fact 1-26, respectively. Specific Rulings on Proposed Findings of Fact Submitted by Respondent Respondent filed a one page, two paragraph Proposed Findings of Fact and Proposed Conclusion of Law that was an argument consisting of facts and law. To the extent that there are facts contained in his argument, they are either not material or not relevant. COPIES FURNISHED: Bruce D. Lamb, Esquire Chief Trial Counsel 730 S. Sterling Street Suite 201 Tampa, Florida 32609 David L. Sturdivant, Sr. 1804 Nelson Street, #I15 Ormond Beach, Florida 32704 Rod Presnell Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times here relevant Theodore S. Brandwein, D.O., held License No. 3259 issued by the Board of Osteopathic Medical Examiners. During the calendar year 1977 and for some period subsequent thereto Respondent maintained his office and practice at 18055 Franjo Road, Perrine, Florida under the name of Brandwein Medical Practice, P.A. The sign marking Respondent's office in 1977, when these charges were preferred, is the same sign depicted in Exhibit 6 which is a photograph taken in 1979. It is the sign for which Respondent registered with the Florida Secretary of State as a service mark. In his application (Exhibit 11) for this registration Respondent described this mark as "a stethoscope, binaural in design, lying horizontally on the paper, sign, building, item, or object on which it is emblazoned, the earpieces and connecting piece forming in script the letter 'D' and the tubing and chest piece convoluted to form the 'O'. Taken together, the stethoscope forms the letters 'D. O.'" The application further provided "applicant is the owner of the mark and no other person except a related company has the right to use such mark in Florida, whether in identical form thereof, or in such resemblance thereto as might be, calculated to deceive or confuse". The sign on Respondent's office in 1977 consisted of this mark depicting a convoluted stethoscope which forms the letters "D.O." only after the exercise of a vivid imagination and an appreciation of surrealistic art. In the yellow pages of the 1977 Miami telephone directory Respondent is listed under Physicians and Surgeons MD. (Exhibit 9). He is not listed under Physicians and "Surgeons - DO. (Exhibit 10). Brandwein Medical Practice, P.A., is the Theodore S. Brandwein who is Respondent in these proceedings. Respondent's Florida license is presently inactive.
Findings Of Fact The following Findings of Fact are based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding. Petitioner is the state agency charged with regulating the practice of osteopathic medicine pursuant to section 20.43, and chapters 456 and 459, Florida Statutes. At all times material to these proceedings, Respondent was a licensed osteopathic physician within the State of Florida, having been issued license number OS 8729. Respondent's address of record at the time of filing the Administrative Complaint was 11950 County Road 101, Suites 101, 102, and 103, The Villages, Florida 32162. Respondent's current address of record is 13767 U.S. Highway 441, Lady Lake, Florida 32159. Respondent currently holds no board certification in any specialty area, and did not complete any residency other than in emergency medicine. Respondent attended Michigan State University, College of Osteopathic Medicine. In 2002, he began full-time practice as an emergency room physician at Munroe Regional Medical Center in Ocala, Florida. He worked as an emergency room physician until he opened Exceptional Urgent Care Center (“EUCC”). At all times material to this complaint, Respondent owned and operated EUCC. Treatment Provided to Patient J.K. On March 15, 2018, J.K., along with his wife, presented to EUCC with complaints of a sore throat and fever. This was the first of two visits to the clinic. J.K. reported his medications as Amlodipine, Warfarin, Tamsulosin, and Dofetilide (unless otherwise indicated, hereinafter referred to by its trade name "Tikosyn"). J.K. was prescribed these medications by his cardiologist at the William S. Middleton Memorial Veterans Hospital (“V.A. Hospital”) in Wisconsin, his home state. Relevant to this matter, Tikosyn helps patients maintain a normal heartbeat rhythm. Tikosyn was prescribed to keep J.K.'s heart in rhythm as he had atrial fibrillation. J.K. was treated by a nurse practitioner, who ordered a chest x-ray and a flu swab. The flu swab returned negative, and the chest x-ray showed no focal pneumonia. J.K. was prescribed Tamiflu and Naproxen. J.K. elected not to fill the Tamiflu due to the “expensive cost.” Respondent was not involved in J.K.'s treatment on this date. On March 16, 2018, J.K. and his wife K.K. returned to EUCC as J.K.’s symptoms had not improved. On this visit, J.K. saw Dr. Im. Dr. Im evaluated J.K. and ordered two tests. Dr. Im ordered a Prothrombin Time International Normalized Ration ("PT INR") test to determine J.K.'s coagulation and he ordered a CT scan of the chest. The PT INR results were within the therapeutic range. The CT scan showed shattered ground- glass opacification in the posterior right lower lobe and the medial left upper lobe. The CT scan findings were interpreted as "non-specific, may represent hypoventilatory change or an infectious inflammatory process (acute or chronic).” Respondent advised J.K. and K.K. that the CT scan appeared to show the start of pneumonia, and he was going to prescribe three medications: Levaquin 750 mg, Prednisone 20 mg, and Zyrtec 10 mg. K.K. testified that she asked Respondent if the Levaquin, Prednisone, or Zyrtec were contraindicated with any of J.K.'s current prescriptions, specifically Tikosyn. K.K recalls that Respondent replied that he was not familiar with Dofetilide (Tikosyn), and advised them to check with the pharmacist to see if there were any contraindications. Although Respondent initially advised J.K. and K.K. that he was not familiar with Tikosyn, Respondent testified that he advised J.K. and K.K. of the possible interactions between Levaquin and Tikosyn and told her that the interaction was very rare. He testified that he advised J.K. and K.K. that the pharmacist is a safety net, and the pharmacist would call him to discuss the prescriptions if he missed anything. K.K. credibly testified that Respondent did not counsel J.K. or K.K. on any risks regarding the medications Dr. Im prescribed or provide them with any alternatives during the visit on March 16, 2018. J.K. and K.K. left EUCC and went to Publix to fill the prescriptions. K.K. asked the pharmacist if any medications would interfere with any of J.K.'s prescribed medications. Upon advice of the pharmacist that Levaquin was contraindicated with Tikosyn, K.K. declined to fill the prescription for Levaquin. On behalf of J.K., K.K. then called EUCC and asked for a different antibiotic that would not interact with Tikosyn. However, she was instructed to contact J.K.'s cardiologist. K.K. then contacted the cardiology staff of the V.A. Hospital in Wisconsin, who instructed K.K. to follow the advice of the pharmacist and (tell J.K.) not to take the Levaquin. K.K. called EUCC a second time to confirm whether J.K. had an infection and she was told that J.K. did not have an infection. Respondent recalls that he had a personal conversation with K.K. during a courtesy telephone call placed the next day (March 17, 2018). Respondent testified that during that call, he explained Levaquin was the drug of choice, other medications would not cover J.K.'s pneumonia, the potential interactions were very rare, and J.K. needed to take the Levaquin. By his own admission and his medical records, Respondent did not provide J.K. or K.K. with any specific alternative antibiotics and insisted that J.K. needed to take the Levaquin. K.K. disputes that Dr. Im spoke with her or J.K. at any point after the March 16, 2018, visit. She clearly recalled that she spoke with a woman each time she spoke with staff at Dr. Im’s office. Overall, J.K. and K.K. clearly and convincingly testified that Respondent never advised them of the risks of using Levaquin with Tikosyn or provided any alternatives to the Levaquin. Expert Testimony Petitioner offered the testimony of Dr. Anthony Davis, who testified as an expert. Dr. Davis has been licensed as an osteopathic physician in Florida since 1995. Dr. Davis attended Kirksville College of Osteopathic Medicine and completed an internship in family practice. He has been board certified in family medicine by the American Board of Osteopathic Family Physicians since 2001, and board certified in emergency medicine by the American Association of Physician Specialists since July 2003. He is also affiliated with professional organizations including the American College of Family Practice and Florida Osteopathic Medical Association. Dr. Davis was accepted as an expert in emergency and family medicine. Dr. Davis relied upon his work experience, his training, and his review of the medical records for J.K. to render his opinion regarding the standard of care related to treating J.K. The standard of care requires an osteopathic physician treating a patient similar to J.K. to: (1) provide and document their justification for why Levaquin was the appropriate drug of choice; (2) note the patient’s acknowledgment that there are interactions with Tikosyn; (3) ensure the patient understands the risks and benefits of combining Tikosyn and Levaquin; (4) explain to the patient that there are limited alternatives to Levaquin; and (5) provide the reason for prescribing a potentially dangerous drug. Levaquin is a medication that comes with a black box warning that requires physicians to counsel patients on the risks associated. When a drug is designated as contraindicated and has a category X for interaction, the standard of care requires that the physician clearly explains to the patient why they are using the drug and defend how it is going to be safe. Tr., p. 70. Dr. Davis opined there were multiple treatment options available for J.K., such as supportive care or an antibiotic with a lower risk of interaction with J.K.'s existing medication. Moreover, Dr. Davis testified that there were safer alternatives to Levaquin that would effectively treat pneumonia, such as doxycycline, if J.K. actually had pneumonia and an antibiotic was necessary. Respondent provided literature from the Infectious Diseases Society of America related to community-acquired pneumonia in an attempt to prove that X-Ray or other imaging techniques are required for the diagnosis of pneumonia and to support his claim that Levaquin was the drug of choice for J.K. However, Dr. Davis credibly pointed out that the article, published in 2007, is no longer accurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Osteopathic Medicine enter a Final Order as follows: Finding that John Joseph Im, D.O., violated section 459.015(1)(x), by committing medical malpractice, as defined in section 456.50, as alleged in the Administrative Complaint; Issue a letter of concern against Respondent’s license to practice osteopathic medicine; Requiring completion of a prescribing practices course; and Imposing an administrative fine of $2,500. DONE AND ENTERED this 16th day of December, 2019, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 16th day of December, 2019.
Findings Of Fact Respondent has been licensed as an osteopathic physician in Florida since 1952 and currently holds License Number 959 issued by Petitioner (stipulation, testimony of Respondent). On June 15, 1972 Respondent was convicted of three counts of violation of the Drug, Device and Cosmetic Act of 1961, Section 4, Laws of Pennsylvania. As a result of these convictions, Respondent was incarcerated for a two-year period from 1972 to 1974. He was released on bond and again incarcerated from the Spring of 1977 until September, 1977 (stipulation, testimony of Respondent). Subsequent to his release from confinement on parole, Respondent taught several night school courses at Duquesne University, Pittsburgh, Pennsylvania and also was employed by VISTA for approximately one year. In November, 1978, he commenced an osteopathic practice in St. Petersburg, Florida (testimony of Respondent, Respondent's Exhibit 2). On November 8, 1973, the Pennsylvania State Board of Osteopathic Examiners revoked Respondent's license to practice osteopathic medicine and surgery in Pennsylvania based on his criminal convictions (stipulation, petitioner's Exhibit 1). In February, 1979, parole supervision of Respondent was transferred from the State of Pennsylvania to the State of Florida. The parole and probation office in St. Petersburg files periodic reports to parole authorities in Pennsylvania. During the period of Florida parole supervision, Respondent has been cooperative with his parole and probation officer and has not been difficult to supervise. The maximum expiration date of Respondent's parole status is September 5, 1983. Release from such status will be determined by the State of Pennsylvania. In April, 1979, Respondent received a hearing before the Pennsylvania Board of Pardons based upon his application for commutation of sentence, but has not received a decision on the application at this time (testimony of Ferriter, Respondent, Respondent's Exhibit 3). Respondent entered into a brief "physician assistance agreement" with the St. Petersburg Osteopathic Hospital after his arrival in Florida which provided for mutual under-takings designed to assist Respondent in establishing a practice. This arrangement however, lasted only approximately three and one half months. A number of Respondent's current patients or their relatives testified as to his competence and satisfaction in his methods of treatment. Additionally, Respondent submitted various documents concerning lectures he has made on medical hypnosis to various organizations, and letters from Pennsylvania residents and physicians expressing belief that he is rehabilitated and has contributed by social work in the community. A St. Petersburg pharmacist who is located near Respondent's present office and handles his prescriptions, testified that, to his knowledge, Respondent had not prescribed controlled substances with the possible exception of Valium (testimony of Brown, Lewis, Drake, Bishop, Beville, Hodges, Penvel, Respondent's Exhibits 1-3). In June, 1979, Respondent voluntarily took a polygraph examination from a private examiner in St. Petersburg. Although Respondent was under some tension at the time, he was capable of being tested. The results of the examination indicated deception on the part of Respondent in denying his guilt of the offenses for which he had been convicted in Pennsylvania. The results of the polygraph examination were received in evidence at the hearing by stipulation of the parties (testimony of Liens). Respondent testified as a witness at the hearing. He stated that his practice currently consists of natural and preventive medicine, including ortho molecular therapy. He further testified that he does not prescribe controlled substances since his patients do not need the same due to his natural healing methods. He seeks to maintain his license as a practitioner under a supervised probationary period. His practice is small at the present time and he has only one or two patients a day (testimony of Respondent).
Recommendation That Petitioner revoke the license of Respondent, Maurice L. Kaye to practice osteopathic medicine, but that the operation of such revocation be suspended for the period and in the manner stated in Paragraph 8 of the foregoing Conclusions of Law. DONE and ENTERED this 15th day of August, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire Post Office Drawer 1838 Tallahassee, Florida 32302 Maurice L. Kaye, D. O. Post Office Box 14202 St. Petersburg, Florida 33733
