The Issue The issues in this case are presented on the basis of an Administrative Complaint brought by the Petitioner against the Respondent. Allegations set forth in that complaint pertain to the treatment of the patient Helen Gilmore. It is alleged that Respondent failed to record on the patient's records or perform the minimum examination procedures for vision analysis related to that patient in an examination of January 26, 1982. It is further alleged that on May 29, 1982, that the patient requested a duplicate copy of the original prescription obtained from the initial examination but Respondent instead performed a new eye examination and again failed to record on the patient records or perform the minimum procedures for vision analysis concerning this patient. In the face of these factual allegations, Respondent is said to have violated Sections 463.012 and 463.016(1)(g) and (h), Florida Statutes, and Rule 21Q-3.07, Florida Administrative Code.
Findings Of Fact At all times relevant to the Administrative Complaint, Respondent has been licensed as a practicing optometrist in the State of Florida, license No. 40616. During this sequence, Respondent has conducted his practice in Palatka, Florida. Respondent saw the patient Helen Gilmore on January 26, 1982. Ms. Gilmore was having difficulty with her present glasses related to vision in her left eye. Following an examination which took into account the minimum procedures for vision analysis set forth in Rule 21Q-3.07, Florida Administrative Code, Respondent issued a prescription for the patient which deviated from the prescription in the glasses which she was wearing at the time of the examination. Respondent charged $30 for the examination and prescription, which was paid by Gilmore. The prescription was presented to Eckerd's Optical Service in Palatka, Florida, in March 1982, at which time Reid obtained new lenses and frames. Ms. Gilmore paid Eckerd's for the lenses and frames. Having obtained the new frames and lenses from Eckerd Optical, Ms. Gilmore wore those glasses until she started having trouble focusing one of her eyes. Specifically, the patient was having trouble focusing on distant objects. Ms. Gilmore complained to Eckerd Optical about her problem several times. Eckerd Optical was unable to find the duplicate prescription related to the request for prescription by Dr. Reid and Gilmore was advised to return to Dr. Reid and receive a copy of that prescription from his office. In this regard, Dr. Reid's office, in the person of his wife, contacted Gilmore and asked if some problems were being experienced, to which Gilmore indicated that she was having difficulty with her eye and Mrs. Reid stated that Gilmore should return and have her eyes checked again by Dr. Reid. On May 29, 1982, Gilmore was seen by Respondent in his office. The purpose of this visit was to obtain a duplicate copy of the prescription which had been given by Dr. Reid on January 26, 1982 and Gilmore made this known to Respondent. Dr. Reid examined the glasses which Ms. Gilmore had purchased from Eckerd Optical and discovered that the lenses were not in keeping with the prescription which he had given to the patient in that the cylinder correction for astigmatism was not as prescribed and the bifocal had been made up round as opposed to flat. The variance in the prescription given and the prescription as filled was slight. Nonetheless Dr. Reid was of the opinion that it could cause and had caused discomfort to the patient, though not in the way of permanent damage. Having this in mind, instead of providing the duplicate copy of the prescription as requested, Respondent conducted a further vision analysis carrying out those procedures set forth in Rule 21Q-3.07, Florida Administrative Code. On the May 29, 1982 visit, and in the January 26, 1982, examination, Respondent failed to record on the patient's case record the indication that external examination including cover test and visual field testing had been done. Moreover, as established by the testimony of a qualified expert, Dr. Walter Hathaway, who is licensed and practices optometry in the State of Florida, the further examination was not optometrically indicated. This determination was made by Dr. Hathaway based upon the fact that Respondent should merely have provided a duplicate copy of the original prescription of January 26, 1982, as issued by Dr. Reid, having discovered the mistake in the efforts of Eckerd's to fill that prescription and allowed Eckerd's to rectify its error. Per Hathaway, it not being necessary to conduct further examination of the patient, to do so was outside acceptable community standards for the practice of optometry, Again, the opinion of Dr. Hathaway is accepted. As a result of the examination, Dr. Reid prepared a second prescription, which was unlike his January 26, 1982, prescription and the efforts at compliance with that prescription made by Eckerd's in fashioning the lenses. Gilmore was charged $35 for the examination and she paid the bill.
The Issue The issue for determination in this case is whether Respondent's license to practice medicine should be revoked or otherwise disciplined for the alleged violations of Section 458.331(1), Florida Statutes, set forth in the Administrative Complaint.
Findings Of Fact Petitioner, Department of Health, is the state agency vested with the statutory authority to enforce the disciplinary standards for the practice of medicine under Chapters 455 and 458, Florida Statutes. Respondent, Lehel Kadosa, M.D., is, and at all material times was, a physician licensed to practice medicine in Florida, having been issued license no. ME 0041277. At all relevant times, Respondent was the owner and operator of the Tampa Bay Back Institute, 7208 North Sterling Avenue, Tampa, Florida. The business stationery of the Tampa Bay Back Institute stated that Respondent is "Board Certified" in "Neurological & Orthopedic Surgery," "Pain Management," and "Neurothermography." Respondent is in fact not board-certified in neurological or orthopedic surgery by the American Board of Neurological Surgery or the American Board of Orthopedic Surgery. The American Board of Medical Specialties does not recognize a board of "pain management" or "neurothermography." Thus, no physician could claim to be "board certified" in those claimed specialties. Patient A.M. presented to Respondent on July 3, 1991, with subjective complaints of extreme pain in her neck, right shoulder, right arm, lower back, and right leg. Patient A.M. testified that she had suffered back and neck pain for 26 years, since she had a back spasm requiring hospitalization. She testified that due to a boating accident and a fall on the sidewalk, the pain had become more acute in the two years prior to her coming to Respondent. She testified that she had gone to at least five doctors over the years for her neck and back pain, but nothing they did offered her any lasting relief. Patient A.M. testified that she was at her "wit's end" when she called to make an appointment with Respondent. She needed something done then and there to help her problem, and was willing to do whatever was necessary to obtain relief for her back. Respondent was not seeing patients the week of July 1, 1991, because he was planning to leave for a visit to his native Hungary, and because he was overseeing renovations to his offices. However, Patient A.M. appeared to be in such severe pain and so desperate for relief that Respondent agreed to see her on July 3. On June 30, 1991, the Tampa Bay Back Institute had run an advertisement in the Tampa Tribune, touting its expertise in "non- surgical treatment of back pain, neck pain & headaches." The advertisement advised that immediate appointments were available and offered a "Free Initial Consultation." Respondent’s name did not appear in the advertisement. The advertisement did not contain the disclaimer language set forth in Section 455.24, Florida Statutes. The same advertisement appeared as late as the August 11, 1991, issue of the Tampa Tribune. Patient A.M. testified that she called Respondent specifically because of his newspaper advertisement, and that she knew nothing about Respondent other than the contents of the advertisement. Patient A.M. testified that the advertisement led her to expect not to be charged for the initial visit. She could not recall whether she mentioned the advertisement when she made the appointment over the telephone, or whether she brought the advertisement with her at the time of her appointment. Patient A.M. testified that she did remember making a point of telling Respondent's staff she was there as a result of the advertisement. She could not recall whether she discussed the matter directly with Respondent. Melinda Kadosa, Respondent’s daughter, testified that she was working in the office when Patient A.M. called for her first appointment. Ms. Kadosa testified that Patient A.M. never mentioned the advertisement; rather, she told Ms. Kadosa that she had heard of Respondent through other doctors and patients. Ms. Kadosa testified that the usual practice in Respondent’s office was to make a notation on the chart of any patient who mentioned the "free consultation." There was no such notation on the chart of Patient A.M. Respondent billed Patient A.M. for a "new patient comprehensive exam" in the amount of $200. Patient A.M. disputed this amount. She admitted that Respondent conducted a full physical examination, but believed that this examination should have been included as part of the "free initial consultation." There was inconclusive expert testimony as to whether the term "consultation" includes a physical examination. Dr. Joseph Uricchio testified that it depends on the context of the situation. Dr. John McCutchen testified that, in his opinion, "consultation" includes a physical examination, but conceded that there is "room for debate" on the question. The advertisement containing the questioned language was not directed at physicians but at laypersons; thus, expert testimony as to a physician's understanding of the term "consultation" is beside the point. The question is resolved by determining whether it was reasonable for Patient A.M., as a layperson of ordinary intelligence and experience, to believe that the term "free initial consultation" included the physical examination to which she admittedly consented. It is found that the term "free initial consultation" is at best ambiguous as to the services it encompasses, and that it was reasonable for Patient A.M. to expect that the "free initial consultation" would include a physical examination. Ms. Kadosa’s testimony that Patient A.M. made no mention of the advertisement is irrelevant. The advertisement itself made an unqualified offer of a "free initial consultation." There was no requirement that the prospective patient make reference to the advertisement in order to obtain the free services. Mr. Rodney Thompson, an employee of Respondent, testified that the advertisement was placed by a hired consultant, without the permission or approval of Respondent. He testified that the advertisement appeared in the Tampa Tribune three or four times, only on Sundays. Even crediting Mr. Thompson’s version of events, the analysis remains the same. Respondent was responsible for the advertising placed on behalf of his business by his paid consultant. Patient A.M. was in no position to know that Respondent had not approved the advertisement. Respondent made no effort to disclaim the advertisement. Indeed, Ms. Kadosa’s testimony indicated that Respondent honored the advertisement when patients specifically mentioned it. Prior to the initial examination, Patient A.M. filled out a "Patient’s History Form," in which she described her present complaints as "extreme pain in neck, right shoulder and arm, lower back, right leg." Patient A.M. also provided Respondent with a set of X-rays taken by one of her previous physicians. Respondent performed a physical examination on Patient A.M. of the head, ears, eyes, nose and throat, the thoracic cage, cervical spine, thoracic spine, and lumbar spine. Respondent also performed a neurological examination of Patient A.M. After performing the physical examination, Respondent ordered X-ray studies of the cervical, thoracic, and lumbosacral spine, pelvis, and right elbow. Based on the history, examination, and X-rays, Respondent recorded the following medical impressions: chronic cervical sprain/strain with myofascitis; chronic lumbosacral sprain/strain with myofascitis; spondylosis of the cervical and lumbosacral spine by X-ray studies; chronic lower back pain; right cervical radiculitis; right lumbosacral radiculitis; chronic sprain of the right elbow; bursitis of the right knee; degenerate disc disease, L5-S1; and arthritis of the sacroiliac joints. Respondent recorded that he expressly ruled out cervical reflex dystrophy of the right upper extremity. Based on the listed impressions, Respondent ordered the following tests: Cervical spine: magnetic resonance imaging ("MRI"), X-rays, and thermography. Thoracic spine: X-rays and thermogaphy. Lumbar spine: MRI, X-rays, and thermography. Right upper extremity: X-rays, thermography, nerve conduction velocity ("NCV") studies. Left upper extremity: X-rays, thermography, and NCV studies. Right lower extremity: thermography. Left lower extremity: thermography. Sacrum: X-rays. Patient A.M. testified that Respondent informed her, prior to ordering the listed tests, that they could cost thousands of dollars. She testified that at the time she didn't know what some of the tests were. Nonetheless, she agreed to undergo the tests, telling Respondent that she wanted to do "whatever was necessary in order to try to get some relief" for her back. Respondent also ordered a one-month course of physical therapy for Patient A.M. All three testifying experts agreed that the physical therapy was appropriate and well within the standard of practice. Patient A.M. did not complete the course of physical therapy. Patient A.M. only returned to Respondent’s office once, and never saw Respondent in person after the initial visit. The bulk of the relevant expert testimony concerned the timing and necessity of the listed tests. Petitioner presented the deposition testimony of John W. McCutchen, M.D., a Florida- licensed, board-certified physician in orthopedic surgery. Dr. McCutchen testified that he reviewed Respondent’s file on Patient A.M., though he did not see the actual X-rays or MRIs. From his review of the record, Dr. McCutchen saw no medical problems with the manner in which Respondent performed the physical on Patient A.M. Dr. McCutchen testified that he questioned the diagnosis of spondylosis of the cervical lumbosacral spine, because such a diagnosis requires X-ray studies and he saw no evidence in the record that X-rays had been taken. Dr. McCutchen was apparently unaware that Respondent was in possession of X-rays taken by one of A.M.’s previous physicians, and could have based his initial impression on those X-rays. Dr. McCutchen questioned Respondent’s ordering X-rays of the cervical, thoracic, and lumbar spine, because the record did not indicate the requisite complaint by Patient A.M. of mid- thoracic pain. However, Dr. McCutchen also testified that he did not have a "big objection" to the X-rays, merely that he would not have ordered them. He testified that these X-rays were within the standard of care. Dr. McCutchen testified that he had no argument with Respondent’s ordering X-rays of the lumbar spine, the pelvis, and the right elbow. Dr. McCutchen testified that the MRIs of the sacral spine and cervical spine ordered by Respondent were not indicated at this juncture of Patient A.M.’s treatment. He testified that he would first want to review the X-rays, and find that the X-rays show changes "that are severe in nature." He would also need to see the results of a neurological examination indicating "nerve root injury or disc rupture or something like that" to justify an MRI of the cervical and lumbar spine. The MRI report stated that A.M. had "loss and reversal of the normal lordotic curvature of the cervical spine, central disc herniation at the C5-6 level, disc bulges at the C3-4, 4-5 and 6-7." Dr. McCutchen testified that this report merely confirmed that there were some disc bulges, and that these were normal for Patient A.M.’s age group. Dr. McCutchen testified that nothing in the MRI report justified Respondent’s ordering of the MRIs. There were no neurological symptoms, history, or any other indication for the MRI of the lumbar spine. He concluded that ordering the MRIs was an excessive diagnostic tool. Thermography is a technique for sensing and recording on color film hot and cold areas of the body by means of an infrared detector that reacts to blood flow, its intended purpose being to detect disease states that manifest themselves by increased or decreased blood flow. Dr. McCutchen was dismissive of thermography as a diagnostic tool. He testified that it was used years ago, but has been disused for the past ten to twelve years. He testified that the theory in cases such as Patient A.M.’s would be that the thermograph would show changes in skin warmth that in turn would indicate nerve dysfunction; however, he testified that thermography has proven inaccurate and of no value in providing any information to assist in the treatment of a patient. Even accepting arguendo that thermography works according to theory, Dr. McCutchen testified that nothing in the medical record indicated the neurological changes that would validate the need for thermography as a diagnostic tool. While Dr. McCutchen believed the thermography was completely useless, he testified that he was unaware of any standard in the medical community regarding the use of thermography. Dr. McCutchen next testified as to the need for the NCV studies on the arms and legs of Patient A.M. He stated that, to justify NCV studies, he would expect to see something in the record concerning nerve dysfunction in the affected areas. Dr. McCutchen testified that elements of nerve dysfunction would be some difficulty in the ability to move the extremities, or some weakness, atrophy or paralysis, or a loss of sensation in a nerve root. These elements would be discovered through the history and physical examination, but Dr. McCutchen testified that he saw no such documentation in the patient records. Dr. McCutchen testified that the neurological examination for Patient A.M. was grossly within normal limits for muscle tone, bulk, and strength of all major muscle groups of the upper and lower extremities. The deep tendon reflexes were within normal limits. Patient A.M. was able to walk in steps, on tiptoe, and heel walk within normal limits. Thus, Dr. McCutchen concluded there was no justification for ordering the NCV studies of the upper or lower extremities. Dr. McCutchen also noted that the records for Patient A.M. show no indication of an interpretation of the thermograms or of the NCV studies, although the billing records show charges for those interpretations. Dr. McCutchen concluded that a "variety of things" done by Respondent in the course of his treatment of Patient A.M. were "totally excessive." He testified that the patient presented with some cervical lumbar pain and some right arm pain, and received an unnecessary MRI of the lumbar spine and NCVs of all four extremities. Dr. McCutchen concluded that Respondent’s course of treatment fell below the level of care, skill, and treatment which is recognized by reasonably prudent similar physicians as acceptable under similar conditions and circumstances. Respondent presented the expert testimony of Joseph Uricchio, M.D., an orthopedic surgeon licensed in Florida since 1965. Dr. Uricchio testified that in recent years his practice has tended to specialize in patients with complaints of chronic pain similar to those of Patient A.M. After discussing the patient’s complaints and the diagnostic tests ordered by Respondent, Dr. Uricchio opined that, based upon his understanding of the facts, the ordering of the tests was within accepted standards of medical care in the practice of medicine in the State of Florida. Dr. Uricchio testified that his opinion was based on his understanding of the discussions that occurred between Respondent and Patient A.M. as to her complaints and desired outcome. Dr. Uricchio stated that his impression was that Patient A.M. told Respondent that her back problems were longstanding and that she was anxious to investigate any reasonable course of treatment that might eliminate her problem. Dr. Uricchio's understanding was generally consistent with the testimony of Patient A.M. Dr. Uricchio agreed that the gradual application of physical therapy for Patient A.M. was "singularly appropriate." Dr. Uricchio testified that, given this particular patient and her professed interest in finding the root cause of all her problems, it was within the range of acceptable medical practice to order NCV tests of the left arm; X-ray studies of the coccyx, pelvis, and thoracic spine; and thermography scans of the cervical spine, thoracic spine, upper extremities, lumbosacral spine, and lower extremities. Dr. Uricchio testified that it is unusual to order this array of tests for the typical patient, and admitted that he could not recall having ordered all these tests at once. However, he testified that ordering the tests was acceptable in this instance because Respondent was dealing with a patient who had a 25-year history of unexplained, chronic problems and a shorter history of increasing problems with her neck and back, with pain going into her extremities. Dr. Uricchio recalled Patient A.M.'s statements that she was "at her wit's end" and desperate to find out "what’s going on." He testified that this was an unusual set of circumstances and a difficult diagnostic and therapeutic challenge. Dr. Uricchio testified that NCV studies are legitimate diagnostic tools appropriate for a patient complaining of an unexplained pain radiating into an extremity, and that Patient A.M. had complained of arm, leg, and shoulder pain coupled with her longstanding neck and back pain. He testified that the NCV studies of the left arm were appropriate, though Patient A.M. complained of pain in her right arm. Dr. Uricchio testified that thermography is a test that has been done for a long time historically, and has enjoyed a "resurgence of interest" in the past 20 years. This testimony was in marked contrast to Dr. McCutchen’s testimony that thermography has fallen into disuse over the past ten years. Dr. Uricchio acknowledged that thermography is controversial in some areas, but that it is a well accepted, expected test to be run in cases of people dealing with chronic pain and chronic pain management. Dr. Uricchio testified that thermogaphy complements NCV testing. The NCV study tests motor nerves to determine if they are conducting nerve impulses well, while thermogaphy tests sympathetic nerves to determine if they are irritated. Dr. Uricchio testified that it was appropriate for Respondent to order both X-rays and MRIs because they show different things. X-rays give a picture of the bone. MRIs give a picture of the dural sac where the spinal cord and nerve roots run, showing the nerve roots as they go out between the bones. Dr. Uricchio testified that an X-ray would not reveal a herniated disc, but that an MRI would. Dr. Uricchio testified that if economy of medical care were a consideration, then a physician might take the course of ordering X-rays and examining those before ordering MRIs. However, because in this instance Patient A.M. appeared unconcerned about the cost of the procedures and was desperate to learn the cause of her condition, Dr. Uricchio found it acceptable to order both X-rays and MRIs at the same time. Dr. Uricchio concluded that the array of tests was justified because the tests are all different: the thermogram looks for sensory nerves or reflex sympathetic dystrophy; the X-ray looks at the integrity of the bone; the MRI finds whether there is a ruptured disc pinching a nerve; radiography or video fluoroscopy tests for abnormal motion or subluxations or any other change in the movement of the neck. Respondent also presented the testimony of Nicholas T. Zervas, M.D., a board certified neurosurgeon and the director of neurosurgery at Massachusetts General Hospital, Harvard Medical School. Dr. Zervas testified that his specialty is patients with brain tumors, though he also deals with spinal problems, disc problems, spinal tumors, peripheral nerve tumors, and general neurosurgery. Dr. Zervas testified that in his practice at Harvard Medical School he tends to treat difficult and complicated cases in which patients have seen a number of doctors without success and have moved "up the ladder of expertise." Dr. Zervas reviewed the patient records regarding Patient A.M., and concluded that she was a "problem patient" in that she had chronic pain for many years and had apparently seen a number of physicians without a specific diagnosis ever having been made. Dr. Zervas testified that with such a "problem patient," it is appropriate to do every reasonable, non-invasive test available to "cover the waterfront" and make sure that everything possible is being done to isolate the causes of the patient’s problems. Dr. Zervas testified that he has made little use of thermography in the last ten years. He further testified that in 1991, when Respondent ordered the tests, thermography was recognized within the medical community as an appropriate diagnostic study and was widely used. Dr. Zervas stated that his research indicated that the medical community’s reliance on thermography began to wane in about 1994, but that prior to that time there was "tons of literature on the value of thermography." Dr. Zervas testified that the thermography was the only test he would not have ordered. He disagreed with the suggestion that thermography went into disuse because it was inaccurate. Dr. Zervas stated that when MRIs and CT scanning came on the scene, they presented an easier way of finding things through direct imaging, replacing reliance upon the circumstantial evidence provided by thermography. Dr. Zervas justified Respondent’s ordering thermography as a "resort to secondary testing" to give him a hint as to whether this was nerve root disease, "since he wasn’t able to find a specific, positive, objective finding." Dr. Zervas’ justification for thermography in this case cannot be credited. The thermography was ordered at the same time as the other tests, before the results of the X-rays and MRIs could be read and interpreted to find "a specific, positive, objective finding." Thus, this "resort to secondary testing" was at best premature. Dr. Zervas testified that all of the tests ordered by Respondent were medically appropriate and within the standard of care, in light of Patient A.M.’s condition at the time she was examined by Respondent. Dr. Zervas testified that he often takes the same approach with such patients, utilizing all tests available that might show where an abnormality might lie, so that he can move ahead and begin treatment as soon as possible. Dr. Zervas found the numerous X-rays justified because it is difficult to isolate the source of chronic neck and back pain, meaning that X-rays of the cervical, thoracic, and lumbar spine, the pelvis, the sacrum, and the coccyx would be required to ensure that all possibilities were covered. Dr. Zervas found the MRIs of the cervical and lumbar spine an appropriate, non-invasive means of "trying to sort out what is present in the spinal canal and bones around it," as well as a means of ensuring that the cause of the pain is not a disc or a tumor. Dr. Zervas was questioned as to why NCV studies of both the left and right arms were appropriate, given that Patient A.M. complained of pain only in the right arm. Dr. Zervas answered that one of the first things taught in medical school is to compare side to side. If readings were done only on the right side, there would be no comparative basis for determining whether the readings were abnormal. Dr. Zervas testified that the X-rays and MRIs revealed extensive degenerative spinal disease in the neck and lumbar regions, more extensive in the cervical region, with extensive narrowing of the intervertebral frame, and bulging discs at several levels of the cervical and lumbar regions. Dr. Zervas believed these findings would be significant once correlated with the clinical syndrome. Dr. Zervas noted that the findings were significant enough to indicate surgery once she was seen by a neurosurgeon at a later date. He could not offer his own opinion on whether surgery was justified, saying that his own course would have been extensive physiotherapy and referral to a pain clinic. Dr. Zervas testified that in his opinion Respondent did not exercise influence on Patient A.M. to exploit her for his own financial gain. Dr. Zervas testified that Respondent did not deviate from the accepted standard of care in treating Patient A.M. Dr. Zervas testified that the records kept by Respondent justified his course of treatment of Patient A.M. It is found that the weight of the expert evidence establishes that all of the tests ordered by Respondent were clinically justified, except for the thermograms. All of the experts agreed that it is somewhat unusual for a physician to order X-rays, MRIs, and NCV studies simultaneously after a patient’s initial visit. However, it is found that these orders were clinically justified under the peculiar circumstances presented at Patient A.M.: longstanding back and neck pain having recently increased to the point where the patient described the pain as nearly unbearable; years of visits to various physicians without either relief from the pain or a specific diagnosis; and the patient’s express statements that she was unconcerned with the cost of treatment. It is found that Petitioner proved clearly and convincingly that thermography was an unnecessary diagnostic test. Even granting Dr. Zervas’ statements that thermography may be a useful "secondary" test in instances where primary tests are inconclusive, Respondent prematurely ordered the thermograms. Thermography might have been justified had the MRIs and NCV studies previously been reviewed and found inconclusive, assuming that thermography is of value at all. Dr. McCutchen’s testimony that thermography is of no value in providing information useful in patient treatment is credited, in part because even Dr. Zervas testified that he has made little or no use of thermography over the past decade, and Dr. Uricchio's endorsement was tempered by his acknowledgement that thermography is controversial. It is found that Respondent failed to keep sufficient records to fully explain the course of treatment that he ordered. The experts were forced to derive much of their information regarding the course of treatment from Respondent’s itemized billing records, because the actual medical records created by Respondent were too cursory to provide useful information. On a related issue, Petitioner alleged that Respondent billed Patient A.M. for services that were not rendered. Specifically, it is alleged that Patient A.M. was billed for interpretations of the X-rays, NCV studies, and thermographic scans, when these interpretations are not documented in the medical record. The weight of the evidence indicates that the interpretations were in fact performed, but that Respondent failed to document those interpretations in his medical records.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Health, Board of Medicine, enter a final order finding the Respondent, Lehel Kadosa, guilty of violating Section 458.331(1)(d), (g), (m), (t), and (x), Florida Statutes, as alleged in the complaint, and imposing upon the Respondent the penalty of a reprimand, supervised probation for a period of three years, and an administrative fine in the amount of $20,000. DONE AND ENTERED this 17th day of September, 1999, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 17th day of September, 1999. COPIES FURNISHED: Albert Peacock, Esquire Agency for Health Care Administration Legal Department Post Office Box 14229 Tallahassee, Florida 32317-4229 Christopher J. Schulte, Esquire Shear, Newman, Hahn & Rosenkranz, P.A. 201 East Kennedy Boulevard, Suite 1000 Tampa, Florida 33629 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether Petitioner should receive a passing grade for the Florida Optometry Licensure Examination taken on July 23 through 25, 2004.
Findings Of Fact Dr. Cook is a licensed optometrist in the State of Michigan. She received her Doctor of Optometry degree in 1985, and became licensed in the same year. Dr. Cook has taken the Michigan, Illinois, and Wisconsin state licensure examinations and passed all three examinations on her first try. For 17 years, Dr. Cook practiced optometry at the University of Michigan Health Services. This was a comprehensive practice, including eye examinations with dilation, treatment of eye diseases, emergency care, and the monitoring and follow-up care of patients with glaucoma, cataracts, and other diseases. Except for providing care to family members, Dr. Cook has not practiced professionally, on a regular basis, since August 2001, when she moved to Florida. Dr. Cook is a Fellow of the American Academy of Optometry. She was accepted at the final hearing as an expert in optometry. Dr. Cook desires to become licensed in Florida to practice optometry. As part of the process to apply for licensure in Florida, Dr. Cook is required to retake parts one and two of the national board examinations and to pass the Florida examination for licensure. She retook the national board examinations and passed on the first try. In August 2003, she took the clinical portion of the Florida examination and failed. In July 2004, Dr. Cook retook the clinical portion of the Florida examination. A passing score on the clinical portion is 80. She scored 75.75 on the July 2004 examination, and, thus, failed the clinical portion. For the clinical examination, Dr. Cook was required to bring her own "patient" upon whom some of the examination's required procedures were required to be performed. Some of the procedures are performed on "patients" brought by other candidates taking the examination. The grading on each procedure in the clinical examination is done by two examiners who are licensed, practicing optometrists. A candidate will be graded by a different set of examiners for the morning and afternoon sessions. The examiners are chosen by the Board of Optometry and trained by the Department's Testing Services Unit and outside practitioner consultants prior to the administration of each examination. The examiners are provided with a set of Grading Standards for their use during the grading of the examination. The purpose of the training and standards is to make the grading process objective and to provide grading uniformity and consistency. The examiners are required to grade and mark their scores independently. They are not to compare or discuss their scoring with other examiners at any time. If both examiners' grades agree, the candidate is given either no credit or full credit, depending on whether the examiners considered the procedures were properly performed. If the examiners disagree on the grading, the candidate is given the average of the two grades actually awarded, which is the sum of the two grades divided by two. If an examiner considers that a procedure is properly performed, the examiner marks the grade sheet with a "Y," indicating a yes. Examiners are taught to give the candidates the benefit of the doubt in borderline cases. If an examiner feels that the performance was borderline, the examiner must indicate "borderline" in the comment section on the grade sheet and specify the reason. If an examiner determines that the candidate did not properly perform the procedure, the examiner marks the grade sheet with an "N," indicating a no. An examiner is required to specify the reason for a no grade in the comment section on the grading sheet. Some of the procedures are performed once for both examiners. Other procedures are performed in groups, meaning that the procedures are performed twice, once before each of the examiners. In grouped procedures, the first examiner will read the directions for a procedure, and the candidate will perform the procedure after the directions are given. The first examiner will read the directions for the next procedure, and the candidate will perform the procedure after the directions are read. This format continues until the grouped segment is completed. The same procedures will then be performed for the second examiner, following the same format used by the first examiner. No records are kept to indicate which examiner graded first or second during any part of the examination. The examination candidate has control over when each examiner grades the candidate. When the candidate is ready to be graded, the candidate is required to say, "Grade me now." Dr. Cook has challenged the grades that she received for the following procedures: confrontational field test; measurement of pupil size; rating patient's response to light; demonstrating the equator and posterior pole during the binocular indirect ophthalmoscopy examination; the anterior vitreous portion of the biomicroscopy examination of the anterior segment; the choroidal crescent, posterior vitreous detachment, A-V three crossings out find and reflex, and hypertensive changes portion of the biomicroscopy examination of the fundus; and measuring eye pressure using a Goldmann Tonometer. A confrontational field test is a gross neurological field test in which the candidate compares her visual field to the patient's to pick up gross neurological defects. The Candidate Information Booklet (CIB) states that the confrontational field test is to be performed as described in Clinical Opthalmology by J.D. Duane. In order to perform this test, the candidate sits in front of the patient about a meter away. The patient covers one eye and looks at the candidate's eye, nose, or other structure so that the patient's gaze is not moving around. The candidate puts her non-moving fingers in different quadrants to test the patient's ability to see the fingers. It is important to keep the fingers stationary while performing the test because moving fingers could be detected by the patient even in a blind field. In other words, a patient who is not able to see a stationary finger may be able to detect a finger that is moving because the motion contributes to the detection. Dr. Cook performed the confrontational field test for both examiners simultaneously. She received .75 points out of a possible 1.5 points for the confrontation field test. Examiner 202 gave Dr. Cook full credit for the examination. Examiner 239 gave Dr. Cook no credit and noted the following in the comment section: "Moving fingers--Init performed 'wiggling fingers' while moving target fingers." Examiner 239 also noted "Did very brief static CF test but fingers moving not stationary." Dr. Cook admitted that she did wiggle her fingers during part of the performance of the examination, claiming that she was testing the patient's peripheral vision, which was not part of the examination. The examination was to be performed within the central 30 degrees. The preponderance of the evidence does not establish that Dr. Cook tested the four quadrants with non-moving fingers. Dr. Cook's score of .75 points is correct. As part of the clinical examination, the candidates are required to measure the size of the patient's pupil. In order to measure the pupil, the candidate must not sit in front of the patient. Sitting in front of the patient creates a stimulus for accommodation, which is a phenomenon where the pupil size changes unless the patient can look and focus on a target at a distance. Dr. Cook measured the pupil size of her patient simultaneously for both examiners. Examiner 202 gave Dr. Cook full credit for her performance in measuring the pupil size, and Examiner 239 did not give Dr. Cook credit for her performance. Examiner 239 noted in the comment section, "candidate sat in front of pt." Dr. Cook received .5 points out of a possible one point for measuring the pupil size during the pupillary examination. Dr. Cook claims that she sat off to the side of the patient, lined up her right eye with the patient's right eye, and asked the patient to sight at a target at a distance. The examiners were off to the side when Dr. Cook performed the procedure. The preponderance of the evidence does not establish that Dr. Cook was in the correct position when she measured the patient's pupil size. Dr. Cook's score of .5 is correct. As part of the examination, candidates are required to rate the patient's pupillary response to light on a pupillary scale. The CIB states, "Pupillary examinations, muscle balance, and motility, should be done on both eyes (including dilated eye)." Examiner 202 gave Dr. Cook full credit for rating the pupil, but indicated that her performance was borderline. Examiner 202 stated in the comment section: "borderline - she was confused about 0 to 4+, but eventually got it." Examiner 239 gave Dr. Cook no credit for her performance, and stated in the comment section: "4+ but did not indicate eye, not used to using 0 to 4 scale." Dr. Cook received .5 points out of a possible one point for rating the pupil on a pupillary scale. She gave the same answer simultaneously to both examiners. When Dr. Cook was asked to rate the pupils of her patient, Dr. Cook was uncertain which scale to use, the Marcus Gunn scale or a true light reflex scale. She indicated that she gave a response for both scales and that one of the responses was 4+. Dr. Cook stated at the final hearing that the left pupil was fixed and dilated, but she did not indicate that she rated the left eye as "0." The preponderance of the evidence does not establish that Dr. Cook advised the examiners of her rating of the left pupil. The score of .5 was correct. The binocular indirect ophthalmoscope (BIO) is an instrument used to examine the fundus, which is the inside back part of the eye. The BIO sits on the candidate's head. There is a small mirror attached, through which another viewer may see the view being seen by the candidate. The candidate holds a condensing lens, which is like a magnifying glass, to evaluate structures in the eye. Examining the fundus with the BIO is a simple procedure, which Dr. Cook performed 14 to 16 times every clinical day for over 17 years. Dr. Cook wore contact lenses during the examination. With the use of contact lenses, Dr. Cook has perfect vision. Dr. Cook adjusted the instrument before the testing procedure started, including adjusting the angle of light and setting the illumination. As part of the examination on the use of the BIO, a candidate is to demonstrate the equator and the posterior pole. In these procedures, the candidate finds the view of the applicable area, one examiner looks through the mirror after the candidate says "Grade me now," and then steps back. The second examiner then looks at the mirror after the candidate again says "Grade me now." Examiner 239 did not give full credit to Dr. Cook in demonstrating the equator. For the portion of the performance which requires the candidate to demonstrate an equator landmark, Examiner 239 gave Dr. Cook a "no" and stated in the comment section: "No clear view through the mirror @ 'Grade me now.'" Examiner 239 also gave Dr. Cook a "no" for an acceptable view of an equator landmark and stated in the comment section: "Dim illumination." Examiner 202 gave Dr. Cook credit for these two performance areas. In the portion of the examination in which the candidate is to demonstrate the posterior pole, the candidate is told that the disc and macula should be seen simultaneously. Examiner 239 did not give Dr. Cook credit for the portion of the examination where the disc and macula are to be viewed simultaneously. Examiner 239 stated in the comment section: "very dim view vis'd ONH not macula." Examiner 202 gave Dr. Cook credit for this portion of the examination. Between the first and second examiners' viewings for the equator and the posterior pole, the patient did not move, Dr. Cook held the focused view still, there was no change in illumination or intensity, and Dr. Cook did not change her position. Thus, it is more likely than not that Examiner 239 was mistaken. Dr. Cook received 3.5 points out of a possible seven points for examining the views of the equator and posterior pole during the binocular indirect ophthalmoscopy examination. She should be credited with an additional 3.5 points. As part of the examination, the candidates were asked to perform an examination using a biomicroscope, which is a microscope combined with a light source that is used to view different structures on the outside and inside of the eye. It is also called a slit lamp. For purposes of the licensure examination, the biomicroscope has a teaching tube attached through the left ocular, and when the examiner looks through the tube she sees the same view the candidate sees through the left ocular. A portion of the examination using the biomicroscope includes grouped procedures. The last procedure on one of the grouped procedures was focusing on the anterior vitreous of the patient's eye. The vitreous is made up of hyaluronic acid and contains vitreal strands made of collagen. As a person ages, the vitreal strands will increase and become more visible. A young patient may have vitreal strands that would be so difficult to see that on viewing the strands the view would appear to be "optically empty." In other words, the vitreous would appear clear on examination. Dr. Cook's patient was a healthy premed student in his early twenties. The patient did not have visible vitreal strands. Before performing the group of procedures, which included the focus of the anterior vitreous, Dr. Cook adjusted the height and width of the light. She set for a direct focal illumination, meaning the light was focused where she was looking. The patient remained still between the procedures, and Dr. Cook did not change the illumination between each grading. Examiner 216 gave Dr. Cook no credit for her focus of the anterior vitreous, stating the illumination was "too dim" and the "vit not seen." Examiner 268 gave Dr. Cook full credit for that part of the examination. Dr. Cook received 1.25 points out of a possible 2.5 points for her performance related to the anterior vitreous portion of the biomicroscopy exam of the anterior segment. Based on the patient's having no visible vitreal strands; the patient not moving between the grading procedures, and Dr. Cook not changing the illumination between grading procedures, it is more likely than not that Examiner 216 was mistaken. Dr. Cook should be awarded 1.25 points for performance of the focus on anterior vitreous. Dr. Cook received 3.5 points out of a possible seven points for her performance related to the choroidal crescent, posterior vitreous detachment, A-V three crossing outs, find and reflex, and hypertensive changes portion of the biomicroscopy exam of the fundus. One of the grouped portions of the examination using the biomicroscope included demonstrating whether a choroidal crescent was present. Determining the presence of a choroidal crescent was the fourth procedure in this grouped segment. A choroidal crescent can be seen when the candidate is looking at the optic nerve and the retina does not come all the way up to the nerve. The choroidal crescent will appear at the edge of the optic nerve. Examiner 268 did not give Dr. Cook any credit for determining whether the choroidal crescent was present, and stated in the comment section, "Did not focus on the edges of the ONH [optic nerve head]." Examiner 216 gave Dr. Cook full credit for the procedure. Dr. Cook did not demonstrate by the greater weight of the evidence that she should be given additional credit for this procedure. Unlike the evidence presented concerning the anterior vitreous, she did not establish that there was no change in illumination, her position, or the patient's position between the grading of the grouped segments. In order to perform the grouped procedures in which she was tested on the presence of the choroidal crescent, Dr. Cook had to move the focus and illumination to different locations related to the optic nerve. The last procedure in the same grouped segment involving the choroidal crescent was demonstrating posterior vitreous separation. Vitreous gel is attached to the back of the eye in several places. When the attachment points for the vitreous are pulled away or become loose, a ring-like structure can be seen where the vitreous pulled loose. Dr. Cook was asked to demonstrate and indicate whether a vitreous separation was present after she performed the procedure involving the choroidal crescent. The proper procedure for checking for posterior vitreous attachment would be to set the proper illumination, focus on the optic nerve, and pull back slightly on the "joy stick." Examiner 268 did not give Dr. Cook any credit for the procedure involving a demonstration of a posterior vitreous separation, stating in the comment section, "Did not pull back." Examiner 216 gave Dr. Cook full credit for the procedure. Again, Dr. Cook failed to establish by a preponderance of the evidence that she should be given additional credit for this portion of the examination. There was no showing that all conditions remained the same when each examiner graded this grouped segment of procedures. Another grouped segment of the examination called for Dr. Cook to start at the optic disc and follow a temporal arcade for a distance of approximately three disc diameters and demonstrate an AV crossing. Dr. Cook was to then indicate whether there were any characteristic hypertensive changes at the crossing. A vascular arcade is a curved shape with blood vessels coming out and arcing toward one another. Most of the blood vessels in the eye are located in this area. Some diseases such as diabetes and hypertension cause changes where the blood vessels in the arcade cross. In order to perform the AV crossing procedure, a candidate has to coordinate the microscope, going up and down and side by side. Lining up is critical on this procedure. Adjustments have to occur separately, once for each examiner. Examiner 268 did not give credit to Dr. Cook for this portion of the examination, stating in the comment section, "No view in the tube." Examiner 216 gave Dr. Cook full credit for the procedure. Dr. Cook has failed to establish that she is entitled to additional points for this portion of the examination. The AV crossing procedure involves making adjustments for each of the examiners as part of the examination, Dr. Cook has not demonstrated by a preponderance of the evidence that all conditions remained the same for each examiner. As part of the examination, candidates are tested on the use of the Goldmann Tonometer, which is a device used to measure eye pressure. The grading on this portion is divided into four categories: illumination at the proper angle, mires alignment, thickness of alignment, and the pressure measurement. Examiner 268 gave Dr. Cook full credit for all categories. Examiner 216 did not give credit to Dr. Cook for having the correct mires alignment, and gave full credit for the remaining categories, indicating that the mires width and the reading of the pressure were borderline. In the comment section, Examiner 216 drew the alignment which he viewed. The mires were not aligned correctly. Dr. Cook received 1.24-1.50 points out of a possible 2.5-3.0 points for the use of the Goldmann Tonometer. Dr. Cook argues that because she was given credit for the pressure reading that it would be impossible for the mires alignment to be incorrect. The reading of the pressure is to test the candidate's ability to read the dial on the tonometer; it is not to determine whether the reading that is on the dial is the actual pressure of the patient. The grading standards require that the examiner put down the reading that he saw during the viewing if it is different from the reading that the candidate gives as a response. Thus, it is possible to be given credit for the pressure reading without having the mires aligned correctly. Dr. Cook has not demonstrated by a preponderance of the evidence that she should be given additional credit for this portion of the examination. None of the examiners testified at the final hearing. The Department did call Dr. Gary McDonald, who was accepted as an expert in optometry.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered awarding Dr. Cook an additional 4.75 points for the clinical portion of the optometry licensure examination given on July 23 through 25, 2004, resulting in a passing grade of 80.25. DONE AND ENTERED this 30th day of June, 2005, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 30th day of June, 2005. COPIES FURNISHED: Edwin A. Bayó, Esquire Gray Robinson 301 South Bronough Street, Suite 600 Post Office Box 11189 Tallahassee, Florida 32302-3189 Allen R. Roman, Esquire Department of Health Office of General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Joe Baker, Jr., Executive Director Board of Optometry Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact Respondent has been a licensed physician in the State of Florida for 30 years. He holds license number ME 0009656. Respondent, whose specialty is general surgery, began practicing in Orlando in 1963. At no time has Respondent' practice been limited to general surgery. When Respondent arrived in Orlando in 1961, he assisted a Dr. Cox. At the time, Dr. Cox and Respondent were the only physicians providing medical services, outside of public health clinics, to the predominantly black community of the Washington Shores area of Orlando. The subject patient (Patient), who was born on December 2, 1951, selected Respondent as her primary physician in 1977. At the time, Respondent was the physician for the Patient's husband and his mother. The Patient saw Respondent Periodically for-several years. Respondent's medical records of the Patient's initial visit record complaints of headaches and dizziness and a history of glaucoma in the Patient's left eye. The glaucoma arose from a traumatic injury suffered when she was eight years old. The Respondent's treatment of the Patient during 1977-1984 is not in question in this case. After a six-month period during which she did not visit Respondent, the Patient saw Respondent on February 14, and March 12, 1985, complaining of pain in her arm. After ordering X-rays and trying Feldene for the pain, Respondent found that the Patient responded better to Indocin, which is a mild pain reliever and anti-inflammatory medication. The X-ray reports, dated March 3, 1985, indicated that the Patient's cervical and dorsal spine were normal. According to the medical records, on February 14, the Patient's blood pressure was 146/96 in her left arm and 136/95 in her right arm and her pulse was 70 and 65 respectively On the March 12 visit, her blood pressure was 149/98 and her pulse was 81. On her next office visit, May 23, 1985, the Patient complained of nervousness, as reflected in the medical records. Her blood pressure was 152/104 and her pulse was 87. Respondent prescribed Inderide 40/25 for the Patient's hypertension and Centrax 10 mg. for the Patient's nervousness. This is the first time that he had prescribed either medication for the Patient. Respondent's medical records disclose what drugs were prescribed, the strength, and the frequency that they were to be taken. Respondent's records are not as clear as to how many pills were prescribed or whether the prescriptions were refillable. By reference to pharmacy records, however, one can determine with reasonable certainty how long the Patient was prescribed Centrax and Inderide by Respondent. With this finding, it is possible to determine from Respondent's records when a reference to a drug means that Respondent is acknowledging that the Patient is still taking the drug and when such a reference means that Respondent is giving the Patient a new prescription. Inderide is a controlled substance that combines a diuretic with Inderal, which is a beta-blocker. Both ingredients are antihypertensive agents. Inderide 40/25 contains 40 mg. of Inderal and 25 mg. of the diuretic. Besides blocking beta- receptor sites, Inderal does not otherwise affect autonomic nervous system activity. Inderal may also decrease intraocular pressure, such as that associated with glaucoma. 1O. The abrupt discontinuation of Inderal is contraindicated for a broad class of patients who have angina or may be at risk of having occult atherosclerotic heart disease. Additionally, Inderal may impair certain heart functions, which "may augment the risks of general anesthesia and surgical procedures." 1991 Physician's Desk Reference, Product Information, P. 2389. Centrax is a controlled substance derived from benzodlazepine, which has depressant effects on the central nervous system. As a benzodiazepine, Centrax is capable of producing psychological and physical dependence- According to the 1991 Physician's Desk Reference: Centrax is indicated for the management of anxiety disorders or for the short-term relief of the symptoms of anxiety. . The effectiveness of Centrax in long-term use, that is, more than 4 months, has not been assessed by systematic clinical studies. The physician should periodically reassess the usefulness of the drug for the individual patient. 1991 Physician's Desk Reference, Product Information, p. 1625. The 1991 Physician's Desk Reference recommends that patients taking Centrax for long periods have blood counts and liver function tests "periodically. " Special care is advised when using Centrax in combination with other antidepressants. Side effects of Centrax include dizziness and fatigue in about 10 percent of the patients and, less commonly, headaches and slight decreases in blood pressure. On May 30, 1985, the Patient returned to Respondent's office to have a dressing changed in connection with the removal of a growth from her arm. Her blood pressure was 128/92 and pulse was 78. The Patient next visited Respondent on July 23, 1985. As directed by Respondent, the Patient had been taking the recommended dosages of Centrax and Inderide for the past two months. On this visit, she complained of weak spells. She reported that her ophthalmologist had prescribed for her Timoptic, which is a beta blocker that is available in an eye solution. Timoptic reduces intraocular pressure, such as that associated with glaucoma. The Patient's blood pressure was 146/93 and her pulse was 55. Respondent's medical records note that the Patient was taking, in addition to the Timoptic and Indocin, Centrax and Inderide 40/25. At this time, Respondent ordered laboratory work on the Patient, including a complete blood count, fasting blood sugar, the SMAC series of 23 blood tests (which would disclose certain liver dysfunctions), an EKG, and an RPR seroiogical test. The test results were normal except for indicating borderline anemia. The Patient visited Respondent a week later on July 30. Her blood pressure was 140/82 and her pulse was 63. In response to her complaints of headaches, Respondent ordered a CT scan of her brain, continued the Centrax and Inderide, as well as Hemocyte tabs for the borderline anemia. By report dated August 7, 1985, the CT scan proved normal. The Patient visited Respondent about a week later on August 8. Her blood pressure was 121/77 and her pulse 50. On this visit, Respondent directed her not to take the Zantac, which he had prescribed two weeks earlier for a possible ulcer. The Patient had never taken any Zantac. His records also notes that the Patient only briefly took Fiorinal, which Respondent had Prescribed during the prior visit, due to nasal bleeding. Five days later, as reflected in the medical records, Respondent called Dr. Ferguson, who was then the Patient's ophthalmologist. They agreed that the Patient should discontinue the Timoptic due to the low pulse. On August 16, the Patient returned to see Respondent. Her blood pressure was 122/98 and her pulse had increased to 85. The medical records report that Dr. Ferguson had discontinued the Timoptic and had substituted another medication for intraocular eye pressure. The records also show that Respondent gave the Patient a prescription for Inderide 40/25 and Centrax 10 mg, as well as a potassium supplement for leg aches and Indocin for pain and inflammation. On August 29, 1985, the Patient returned to see Respondent. She stated that her head was ready to "explode," according to the medical records. She reported that she had been taken off all eye medication. Complaining of insomnia, the medical records note Respondent's observation of constant fidgeting indicative of anxiety. Respondent decided to increase the frequency that the Patient would take the Centrax from twice a day to three times a day. He also ordered T3 and T4 tests to determine if the Patient suffered from hyperthyroidism. About a week later, on September 5, the Patient revisited Respondent. Respondent prescribed an antihistamine for her complaints of hoarseness and a dry cough. The records disclose that the thyroid test results were normal. The Patient returned to Respondent on September 13. Noting less nervousness and hoarseness and only intermittent headaches, as reflected in the medical records, Respondent approved her returning to work. Her blood pressure was 130/1OO. The notes show that she is to "cont[inue]" the Inderide, Centrax, and Indocin. In the four months since the Patient commenced taking Inderide and Centrax, Respondent had seen her nine times or about once every two weeks. Respondent had also ordered substantial laboratory work to monitor the Patient's condition, consulted with her ophthalmologist with the result that she was taken off eye medication to see if her complaints would be eliminated, obtained a CT scan to rule out other sources of the headaches and related complaints, and obtained thyroid tests to rule out a thyroid malfunction. Sometime prior to the end of 1985, the. Patient changed ophthalmologists and retained Dr. Jerry Shuster to treat her glaucoma. Respondent had continued to prescribe Inderide 45/20, as he intended her to take it for an indefinite period to control hypertension. However, Respondent's prescription for Centrax had run out. On December 26, 1985, the Patient called Respondent to ask for a conference. As a result of this conversation, Respondent called Dr. Shuster and learned that, while treating her for her eye problems, he too had noticed her nervousness. The physicians agreed the nervousness would be helped by restarting Centrax. On December 26, following his conversation with Dr. Shuster, Respondent reissued the Patient's prescription for Centrax, Inderide, and Indocin. The Centrax prescription was for 60 pills with no refill; if taken at the maximum prescribed frequency, the Centrax prescription would run out in about 20 days. By contrast, the Inderide prescription was for 30 pills and allowed three refills; at one pill daily, this prescription would last 120 days. The Patient visited Respondent on January 16, 1986. Her pulse was 52, and she was treated for a vaginitis. A return visit on January 30 disclosed that her vaginitis had cleared up. The medical records note that her blood pressure was 121/89 and pulse was 69. The records also note that the Inderide, Centrax, Indocin, a cortisone (for the vaginitis), and Timoptic prescribed by Dr. Shuster would be continued. Based on the findings contained in Paragraphs 33 and 38 below, the word, "continued," as used in Respondent's medical records, means that the Patient was directed to continue taking medication from a prior prescription, not that she received a new prescription. In January or February, 1986, the Patient decided to discontinue the Centrax because of the fatigue that she associated with its use. She did not again take Centrax until about August, 1986, although she continued to take the Inderide. When she continued the Centrax, she had only what remained of the 20- day prescription that she had received on December 26, 1985. On March 11, 1986, the Patient next visited Respondent. Her blood pressure was 150/90. She complained of leg aches and exhaustion, and Respondent noted in his medical records his observations of fidgeting and restlessness. Respondent prescribed a potassium supplement for the aching leg and ordered a complete blood count, fasting blood sugar, and electrolytes test, which proved normal. Seven months passed before the Patient saw Respondent again. On October 15, 1986, she came to the office. Her blood pressure was 134/91 and her pulse was 73. She stated that she was suffering from nausea and dizziness. Respondent gave her another prescription for Inderide 40/25, Cortisporin for an unrelated ear infection, and Antivert 25 for the dizziness. Respondent prescribed no Centrax during the October 15 office visit. The Patient's pharmacy produced the prescription for Inderide, but, unlike the case with the simultaneous prescriptions for Inderide and Centrax on December 26, 1985, produced no prescription for Centrax. In the absence of any mention of Centrax in Respondent's medical records, which are thorough as to when Centrax and other medications were prescribed, there is no basis to find that Respondent wrote a new prescription for Centrax. Almost four months passed before Respondent again saw the Patient. On February 6, 1987, she visited the office because of back pain and stress-induced frequent urination. Her blood pressure was 140/87 and pulse was 75. Dr. Shuster had been prescribing her Timoptic and steroids for her glaucoma. Respondent approved the use of a heating pad and provided no other treatment. Nine months later, on November 11, 1987, the Patient returned to Respondent's office. She was suffering from pain in her right eye and suggested that the Timoptic being prescribed by Dr. Shuster was responsible. She was still taking the Inderide 40/25 that Respondent had prescribed, but had not been prescribed any more Centrax since December 26, 1985. Respondent gave her a new prescription for Centrax 10 mg., to be taken as needed but not more than three times daily. The prescription for Centrax was for 60 tablets with two refills. At the maximum allowed frequency, the Patient received a 60-day supply of Centrax. Respondent also ordered the T3, T4, and TSH thyroid tests, a complete blood count, and SMAC blood test. The results of the thyroid tests, which were reported on November 13, were normal for T4 and TSH and very slightly elevated for T3. Almost two leeks later, on November 23, 1987, the Patient returned to Respondent's office. Her blood pressure was 123/84 and her pulse 77. She was tired and weak and experienced numbness in her right leg, but she said that she was sleeping well. Respondent's notes reflect that he directed her to continue her medications, to take a vitamin B12 injection, and to call him the following day. The notation, "cont[inue] med[ication]s" did not mean that Respondent gave the Patient a new prescription; in this case, he had just given her a three months' supply only 10 days earlier. No prescriptions were produced by the Patient's pharmacy for any new prescriptions on or about November 23. Further, Respondent's testimony concerning his unwillingness to prescribe more than a limited amount of Centrax at one time is credited. On December 1, 1987, the Patient returned to the office. Her blood pressure was 127/78 and pulse 72. The notes record a conversation among Respondent, the Patient, and her husband that concluded with the decision that the Patient would speak with Dr. Shuster about her vision. Respondent prescribed Indocin, which had been used frequently in the past for an arthritic condition and general body aches. Two weeks later, on December 15, the Patient returned. Her blood pressure was 122/95 and pulse was 82. The records note that she appeared calmer. Respondent spoke with Dr. Shuster about the Patient's anxiety about losing her vision in the damaged eye, and they agreed that she needed an antidepressant. According to the records, Respondent prescribed Tofranil 25 mg. and that she continue to take her Centrax. Tofranil, which is a member of the dibenzazepine group, is an antidepressant that acts primarily by stimulation of the central nervous system. The 1991 Physician's Desk Reference suggests that the physician Prescribe a tranquillizer with Tofranil, if manic episodes occur. The use of Tofranil ended two weeks later when the Patient returned to Respondent's office on December 29 complaining of nausea. Recognizing this as an adverse reaction to Tofranil, Respondent took her off the medication. Her blood pressure was 131/96 and pulse 73 during this visit. In response to a complaint of hoarseness, Respondent ordered a chest X-ray and referred her to an ear, nose, and throat specialist. Chest and pelvic X-rays proved normal, as well as a mammogram taken at the same time. In response to complaints of diarrhea and stomach cramps, Respondent Prescribed Tagamet. He also continued the Prescription for Centrax, but did not provide her with a new Prescription at the time. However, on January 8, 1988, the Patient's Pharmacy filled a new Prescription from Respondent for the Patient for 60 Centrax tablets and refillable three times. The prior Centrax Prescription could have been exhausted by this time, if the Patient took three tablets a day. The new prescription gave her a 80-day supply, if she used it at the maximum rate. The ear, nose, and throat specialist, Dr. Stephen E. Howery, saw the Patient on January 4, 1988. He noted that the Patient complained of persistent hoarseness since July, 1987, and suffered from hayfever. His impression was that she suffered from polypoid degeneration of the vocal cords and recommended antihistamines. If this treatment did not work, he recommended a laryngoscopy and stripping of the vocal cords. The Patient visited Respondent on January 12. Her blood pressure was 123/92 and pulse 69. Apparently, Dr. Howery's initial conservative treatment, which was identical to Respondent's successful treatment of the same complaint two and one-half years earlier, did not help. Outpatient surgery was performed on or about January 14, 1988. The surgery, which required general anaesthesia, was successful. In preparation for the throat surgery, the Patient stated that she was taking Centrax, Inderide, Tagamet, and Timoptic, which were all discontinued prior to surgery. Following the throat surgery, the Patient began to experience difficulty in urination. She contacted Respondent, who suggested that she go to the emergency room of a nearby hospital for catheterization. After a couple such visits, when the Patient again could not void her urine, Respondent advised that she go to the hospital. In the meantime, Respondent contacted the patient's gynecologist, Dr. Chisholm. He examined the Patient on January 20 and found no gross abnormalities except for a two cm. ovarian cyst that was not the cause of the Patient's urinary problems. Respondent also contacted a uroiogist, Dr. Helmley, who eliminated the obstruction by Performing a cystoscopy and urethral dilation on January 22 which also required a general anaesthesia. At this time, Dr. Chisholm and Respondent agreed that the Patient required the services of a psychiatrist Dr. Lillian Saavedra met the Patient while she was still in the hospital. The Patient was released from the hospital on January 24, 1988. At about this time, the Patient decided not to see Respondent anymore. She required hospitalization the beginning of February, 1988, spending two weeks in a psychiatric unit of a local hospital. By this time, she was on a variety of medications, most if not all of which had not been Prescribed by Respondent. Dr. Saavedra's final diagnosis at the conclusion of the hospitalization was that the Patient suffered from somatization disorder, possible family discord, hyperthyroidism, and glaucoma in her left eye. After a few months, the Patient discontinued seeing Dr. Saavedra and taking the antidepressant that she had prescribed for the Patient. The Patient saw another psychiatrist and later a chiropractor, and her complaints gradually diminished. Nothing in the record establishes that Respondent failed to obtain adequate laboratory testing to evaluate the condition of the Patient. From May, 1985, through January, 1988, hyroid tests, in addition to various X-rays and a CT scan. These proved normal. The implication in the allegation of inadequate laboratory testing is that Respondent misdiagnosed the Patient's condition. The record is clear that he did not fail to detect thyroid problems because, during this period, she had. none. Although the low pulse rate was properly a matter of concern, Respondent reacted to it by causing the discontinuation of Timoctin. Later, Respondent's pulse rate evidently acclimated to the beta blockers. Similarly, Respondent did not fail to diagnose the polyps on the vocal cords that were later corrected by surgery. The initial treatment of the ear, nose, and throat specialist, was the same as Respondent's successful treatment of the condition two and one-half years earlier. In view of Dr. Howery's conservative initial approach to the problem, it is impossible to infer that Respondent failed to make a missed diagnosis or untimely referred the Patient to a specialist. Respondent did not fail to diagnose any dependency upon Centrax. There are two breaks in the Centrax prescriptions. Following the commencement of Centrax on May 23, 1985, the Patient took the drug continuously far four to seven months, before a break occurred prior to the December 26, 1985, prescription. The Patient discontinued taking Centrax in January or February, 1986, so, except for what tablets may have been unused from the December 26 prescription, the Patient took no Centrax for almost two years before Respondent gave new a new prescription on November 11, 1987. Within two months, however, the Patient discontinued the use of Centrax again. Although the first period during which the Centrax was Prescribed-- four to eight months--may have exceeded the period for which the drug may normally be expected to :e effective, there is no evidence that any dependency resulted during this time. The second period of use was not Particularly long-- only two months--and followed nearly two years during which the Patient had not used the drug. If taken at the maximum frequency, the Centrax would have lasted only four and one-half months from November 11 through the early January, 1988, renewal. Nothing in the record establishes that Respondent's referral of the Patient to a psychiatrist was untimely. The medical records reflect that the Patient was making some progress in late 1987. She reported sleeping fairly well during her November 23, 1987, office visit, and she appeared calmer during her December 15, 1987, visit. It is impossible to attribute her emotional and mental decline in February, 1988, to anything that Respondent did or did not do. Nothing in the record establishes that Respondent should have observed symptoms requiring psychiatric care sooner than he did. Also, the referral to the urologist was timely following the throat surgery. Nothing in the record establishes that it was unreasonable to try two catheterization before having unused from the December 26 prescription, the Patient: took no Centrax for almost two years before Respondent gave new a new prescription on November 11, 1987. Within two months, however, the Patient discontinued the use of Centrax again. Although the first period during which the Centrax was prescribed-- four to eight months--may have exceeded the period for which the drug may normally be expected to be effective, there is no evidence that any dependency resulted during this time. The second period of use was not particularly long-- only two months--and followed nearly two years during which the Patient had not used the drug. If taken at the maximum frequency, the Centrax would have lasted only four and one-half months from November 11 through the early January, 1988, refill. Nothing in the record establishes that Respondent's referral of the Patient to a psychiatrist was untimely. The medical records reflect that the Patient was making some progress in late 1987. She reported sleeping fairly well during her November 23, 1987, office visit, and she appeared calmer during her December 15, 1987, visit. It is impossible to attribute her emotional and mental decline in February, 1988, to anything that Respondent did or did not do. Nothing in the record establishes that Respondent should have observed symptoms requiring psychiatric care sooner than he did. Also, the referral to the urologist was timely following the throat surgery. Nothing in the record establishes that it was unreasonable to try two catheterization before having the Patient examined by a urologist. Respondent's medical records amply justify the various treatments that the Patient received during the years that she was seen by Respondent. The medical records are, at times, somewhat obscure as to the number of tablets prescribed at a given point. However, the records disclose A. uniform use of certain terms which, as corroborated by the pharmacy's records, provide the information from which the number of tablets can be calculated. The major exception is the Inderide, but Respondent intended to maintain this drug indefinitely. Nothing in the record establishes that Respondent failed to practice medicine with the level of care, skill, and treatment that a reasonably prudent physician recognizes as acceptable under similar conditions and circumstances. In this finding, the relevant level of care, skill, and treatment imposed upon Respondent is not relaxed because he, a general surgeon, elected to practice general medicine or because he chose to provide medical services to a community in need of such services.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Board of Medicine enter a final order dismissing the Administrative Complaint. ENTERED this 9th day of July, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1991. APPENDIX Treatment Accorded Proposed Findings of Petitioner 1-5: adopted or adopted in substance. 7: adopted except that the evidence did not demonstrate that Centrax could not be useful for treatment of anxiety over the periods for which Respondent prescribed it to the Patient. 8: rejected as subordinate and irrelevant. Petitioner failed to prove that Centrax was inappropriately prescribed foi the Patient. 9-10: adopted. 11: adopted except that May 23, 1985, is the date that Respondent first prescribed Centrax for the Patient. 12-13: adopted in substance. 14-15: rejected as unsupported by the appropriate weight of the evidence. 16: rejected as recitation of testimony. 17: rejected as unsupported by the appropriate weight of the evidence. 18 and 20: rejected as subordinate. 21: rejected as unsupported by the appropriate weight of the evidence. 22: rejected as subordinate. 23 and 29-35: rejected as recitation of testimony. Dr. Garoni's testimony has not been given much weight for the reasons set forth on the record at the hearing. 24: rejected as recitation of testimony. 25: adopted in substance. 26-28: rejected as irrelevant. Petitioner failed to prove that the Centrax was responsible for any of these problems. To the contrary, the record suggests other factors responsible for these symptoms. 36 (except for (c)): rejected as recitation of evidence. 36(c): rejected as unsupported by the appropriate weight of the evidence. The indication as to amount of pills and renewability, however, is oblique and barely satisfies the requirements of recordkeeping. 37-38: rejected as recitation of evidence. 39: rejected as legal argument. There were obvious shortcomings in Dr. Garoni's testimony concerning the subject medications, and he candidly admitted his lack of familiarity with the subject drugs. Doubtlessly, Dr. Garoni is a "reasonably prudent similar physician," as described by Section 458.331(1)(t). However, it is obvious that Dr. Garoni's prudence has led him to exercise an abundance of caution when prescribing medications such as Centrax and Inderide. Dr. Garoni candidly testified, as to Tofranil and Centrax: "I'll be honest with you, I don't feel confident to tell you whether you ought to give those two drugs together. I mean, I think that's out of my field. I would never prescribe those two drugs at all . . .." Deposition of Dr. Garoni, P. 32. His testimony is elsewhere qualified with "I think" and "I feel," when referring to Respondent's treatment of the Patient. The strategic problem for Petitioner was that Dr. Garoni was not qualified to opine on the appropriateness of the medications. This fact does not of course mean that Respondent improperly prescribed medications for the Patient because Respondent, like Dr. Garoni, holds himself out as specializing in general surgery. Nothing prevented Petitioner from offering testimony from a physician qualified to opine as to the proper use of these drugs. If Petitioner felt constrained to limit itself to a physician practicing Respondent's self-declared specialty, then another general surgeon would have to be found. However, Respondent's actual practice is, by his own admission, not confined to general surgery. In this case, an internist or general practitioner would have qualified as a similar physician. In addition, nothing would have prevented Petit:Loner from supplementing the testimony of the similar physician, whether he or she was Dr. Garoni, an internist, or a general practitioner. In this manner, Petitioner could have offered the testimony of an expert specially trained or experienced in the use of these medications. 40: rejected as recitation of testimony. 41: rejected as subordinate. Treatment Accorded Proposed Findings of Respondent The proposed findings of Respondent have been adopted in substance except as otherwise indicated: 1-2: rejected as subordinate except as to Respondent. 7 (last sentence): rejected as legal argument. 10 and 12-13: rejected as recitation of evidence. 11: rejected as subordinate. 18 (after third sentence): rejected as subordinate. 20: rejected as unsupported by the appropriate weight of the evidence. 22-23: rejected as subordinate. 23 (second): rejected as irrelevant. 25: rejected as recitation of testimony and legal argument. 26 (last sentence): rejected as irrelevant. 28: rejected as recitation of evidence. 29: rejected as subordinate. 30: rejected as subordinate and irrelevant. 33: rejected as repetitious and recitation of evidence. 34 and 38: rejected as subordinate and irrelevant. 35: rejected as legal argument. 36: rejected as recitation of evidence. COPIES FURNISHED: Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Dorothy Faircloth Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792 Richard A. Grumberg Senior Attorney Department of Professional Regulation Northwood Centre 1940 N. Monroe St. Tallahassee, FL 32399-0792 Harvey M. Alper Massey, Alper & Walden, P.A. 112 W. Citrus St. Altamonte Springs, FL 32714-2577
The Issue Should the Board of Medicine (the Board) discipline Respondent's license to practice medicine in Florida, based upon an alleged failure in the level of care and treatment of J.P., his patient?
Findings Of Fact STIPULATED FACTS: Petitioner is the state department charged with regulating the practice of medicine pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes, and Chapter 458, Florida Statutes. The Respondent, whose address of record is 1834 SW 1st Avenue, Ocala, Florida 34474, was issued license number ME 56306. At all times material to this Complaint, the Respondent was a licensed medical physician within the State of Florida. Respondent specializes in pulmonology. Respondent was Patient J.P.'s attending physician. Respondent ordered a bronchoscopy and specimens that revealed possible Mycobacterium Avium-Intracellulare (MAI). The biopsies revealed signs of granulomalous infection as seen in MAI or tuberculosis (TB). During this (his) hospital stay, Patient J.P. was started on the drug ethambutol at 1600 mg daily. It is the manufacturer's recommendation that the dose of ethambutol, if started at 25 mg per kilogram per day, should be reduced to 15 mg per kilogram per day after 60 days. The infections (infectious disease) specialist saw Patient J.P. in his office on or about July 26, and August 8, 2000 and in his August 18, 2000 letter to Respondent, there was no mention or recommendation for a change in Patient J.P.'s dosage after two months on the ethambutol therapy. Patient J.P. was subsequently seen by the Respondent on October 23, and again on December 27, 2000, when Patient J.P. complained of eye problems. At this later visit Respondent immediately discontinued the ethambutol and referred Patient J.P. to an eye specialist. ADDITIONAL FACTS: Patient J.P.: On May 8, 2000, Patient J.P. was seen at Ocala Lung and Critical Care Associates (Ocala Lung and Critical Care) in Ocala, Florida. This practice is Respondent's Professional Association. The patient had been referred by Dr. Dave Metcalf. On that date the patient was seen by Respondent's associate, Poonan Warman, M.D. According to the note in the patient records for that date, the patient reported a complaint of "cough and cold" with no weight loss. (Petitioner's Exhibit No. 1, page 28) On May 23, 2000, the patient returned to Ocala Lung and Critical Care. Again Dr. Warman saw the patient. A note in the patient's chart describes J.P.'s condition on that date. (Petitioner's Exhibit No. 1, page 35) At that time Dr. Warman concluded that the patient had a mass in his left lung with right lung abscess. Dr. Warman scheduled a bronchoscopy and prescribed mediation. On June 13, 2000, Respondent first say Patient J.P. at Ocala Lung and Critical Care. At that time Respondent made notes in the patient's chart concerning the patient's condition. (Petitioner's Exhibit No. 1, page 49) Respondent assessed the condition as a system in the patient's right upper lobe, possible lung abscess. The note refers to the provision of an antibiotic, a CBC differential and CRP that was ordered. This was a follow- up visit for the bronchoscopy that had been performed by Dr. Warman. Cultures in association with the organism found through the bronchoscopy were pending. At that time Respondent's recommendation to the patient was to continue the antibiotic treatment of Augmentin as well as Clindamycin. The patient was to be seen back in a month's time, according to a typed note within the patient's chart bearing Respondent's signature. (Petitioner's Exhibit No. 1, page 48) In that same typed note it was noted that the bronchoscopy and the biopsy that had also been performed did not reveal malignancy but chronic inflammatory cells had developed. The type-written impression entered in the chart was right upper lobe cavitary lesion, most likely lung abscess. On this date Respondent concluded that the patient had bacterial infection in the lung and the lung abscess. Respondent wanted blood work done to monitor the side effects of the antibiotics being given. Respondent discussed the side effects of the medication with the patient as noted in the written entries in the chart. In relation to the antibiotic medications that were provided to Patient J.P., notes were made on June 14 and 20, 2000, in the patient records maintained by Ocala Lung and Critical Care, commenting on the efforts by the practice to assist Patient J.P. in obtaining those medications from that office and other doctors' offices because of his inability to pay for the medicine. (Petitioner's Exhibit No. 1, page 47) On June 27, 2000, Respondent saw Patient J.P. at the Monroe Regional Medical Center (the Medical Center) in Ocala, Florida, for a medical emergency. The Medical Center is a hospital. At that time the patient's chief complaint was a right-side chest pain. The patient was admitted to the Medical Center by Frank E. Reisner, M.D. The patient had called Respondent's office before his admission. Under the circumstances Respondent was concerned that the patient would not receive adequate treatment as an outpatient. It was recommended that the patient be admitted for inpatient hospital treatment of his lung abscess. On June 27, 2000, the emergency department note in the hospital record refers to the admission of Patient J.P. to the service of Dr. Mishra, an internist at the hospital. (Petitioner's Exhibit No. 1, page 354) Dr. Mishra had also spoken to Patient J.P. and told the patient to come to the hospital. Because the Patient J.P. had a lung abscess problem and had been seen by Respondent in the past, Respondent became responsible for the patient in the hospital upon the request of another physician. Respondent's decision to have the patient remain admitted for treatment of the lung abscess was made the same day the patient arrived at the hospital. Under this arrangement Respondent was the attending physician. On June 28, 2000, after receiving the chart for Patient J.P. from Respondent's office, to review the patient history and based upon results at the hospital that revealed the patient had possible MAI present in bronchial washings from a bronchoscopy performed in the hospital, Respondent decided to consult with Lee Prchal, M.D., who specializes in infectious disease and practices in Ocala, Florida. The reason for the consultation was that Respondent does not treat MAI. Decisions about the appropriateness of treatment for MAI, in Respondent's view, would best be made by a physician specializing in infectious diseases. Respondent did not feel comfortable treating MAI, in that he did not have sufficient knowledge about the condition and its treatment. If Dr. Prchal thought that the patient needed to be treated for MAI, Respondent expected that the other physician would be responsible for the care. With this in mind Respondent did not follow the patient as an attending physician would normally during the patient's stay in the hospital. Nonetheless, Respondent was aware that Patient J.P. had been prescribed ethambutol, also referred to as ethambutol hydrochloride or by the generic drug name Myambutol. Respondent understood that the medication had been prescribed initially in a setting in which it was uncertain whether the patient had a problem with MAI or tuberculosis. Dr. Prchal had written the order for ethambutol given to Patient J.P. in the hospital stay. Dr. Prchal intended to address any MAI with the medication. Dr. Prchal did not write orders for ethambutol upon the patient's discharge, although the patient continued to take the medication. Respondent did not order an initial visual acuity test when Patient J.P. was first prescribed ethambutol in the hospital stay. Dr. Prchal did not order visual testing to establish a baseline while the patient was hospitalized. At no point during the time Patient J.P. was treated with ethambutol did Respondent consider himself responsible in addressing MAI. Respondent did not believe that he had the duty to manage the treatment. He believed that Dr. Prchal was responsible while the patient was in the hospital and upon the patient's discharge. On July 19, 2000, following the Patient J.P.'s discharge from the hospital, Respondent saw the patient again in an office visit. Notes concerning that visit were made. (Petitioner's Exhibit No. 1, page 84) The notes reflect that the patient was doing well, and his cough had improved. Respondent's impression was that the patient had atypical TB and COPD. COPD refers to Chronic Obstructive Pulmonary Disease. At the time it was noted that the patient was advised to keep in touch with HRS for atypical TB. HRS refers to Health and Rehabilitative Services. In actuality, the Marion County Health Department was the health organization that Respondent had in mind. The comment on HRS is in association with an adult clinic in Ocala, Florida. According to a note in the patient record made by a member of Respondent's staff, someone previously had spoken to a person from the Health Department, who said that Patient J.P. did not have tuberculosis. This meant that the TB clinic with the Health Department would not follow his case for tuberculosis, but he could be followed in the adult health clinic for the condition he did have and that clinic should be able to help the patient with needed medication. (Petitioner's Exhibit No. 1, page 47) The adult health clinic is a general clinic affiliated with the Department of Health, and if seen in the general clinic Respondent believed that the patient could be provided needed medications. Patient J.P. had experienced difficulties obtaining needed medication in the past. As before, Respondent did not examine Patient J.P. in relation to visual acuity. The patient offered no complaints about his vision at this visit. On the July 19, 2000 visit Respondent did not consider reducing the ethambutol dosage for Patient J.P. The patient was referred to Dr. Prchal for a visit on July 26, 2000, in relation to MAI. Given the referral to Dr. Prchal, Respondent proceeded on the basis that Dr. Prchal was responsible for treating Patient J.P. for MAI. It was intended that the patient return to see the Respondent on October 23, 2000. Patient J.P. saw Dr. Prchal on July 26, 2000. Following that visit Dr. Prchal wrote the Respondent. The letter was dated August 18, 2000. (Petitioner's Exhibit No. 1, pages 87 and 88) In concluding remarks Dr. Prchal stated in the correspondence: Therefore, at this time, I would recommend continued ethambutol and biaxin for treatment of his MAI. The duration of his clindamycin will require your clinical judgment, but in view of his radiographic changes, it may require further prolonged administration. Respondent's reading of the correspondence was that Dr. Prchal would continue to monitor and be responsible for ethambutol therapy while deferring to Respondent to treat the lung abscess with Clindamycin. On October 23, 2000, Respondent saw Patient J.P. in Respondent's office. Handwritten notes were made by the Respondent during the visit, followed by typewritten notes for the patient's record. (Petitioner's Exhibit No. 1, pages 90 and 91) The patient records refer to the Respondent's perception that Dr. Prchal was treating MAI with multiple antibiotics. The note refers to COPD, lung abscess and MAI. Respondent asked the patient to discontinue Clindamycin and to continue Biaxin. Respondent also asked Patient J.P. to continue taking ethambutol. Respondent did not consider himself to be responsible for treating MAI with ethambutol. In the typed document for the patient record pertaining to the October 23, 2000 visit, it is indicated under the section dealing with Respondent's impression that the lung abscess healed resulting from treatment with clindamycin. At the same time the typed notes indicated that MAI would require long-term treatment. Although Respondent contends that Dr. Prchal would follow Patient J.P. routinely for MAI, the typewritten note describes Dr. Prchal's August 18, 2000 correspondence as a "final note." On October 23, 2000, the patient did not complain of any problems with visual acuity and no eye examination was ordered by Respondent. No specific inquiry was made concerning the patient's progress with the MAI. A follow-up appointment was scheduled for December 27, 2000. Patient J.P. kept that appointment. On December 27, 2000, Patient J.P. complained of an eye problem. He told Respondent that he was not able to see and that two weeks before he had seen an eye physician. As the patient record indicates, the patient complained to Respondent whether this problem with his vision was due to medicine. As a record on the patient care states, authored by Respondent, Respondent indicates "In response, [to complaints about the patient's vision] I have stopped his ethambutol." The impression in the patient record that was typed indicates as well "Ethambutol is being stopped today." This patient record is by way of a letter from Respondent to Dr. Prchal. (Petitioner's Exhibit No. 1, page 93) The letter goes on under the portion referred to as "Plan" to say, "I referred him back to you [Dr. Prchal] for evaluation of the disease process and then we will decide how long he will require the Biaxin." The discussion given thus far of the facts, includes the perspective of the Respondent as to his explanation of care for MAI in Patient J.P. The next part of the discussion is in relation to testimony by deposition by Dr. Prchal including his explanation of his care for MAI provided Patient J.P. Dr. Prchal has practiced in Ocala, Florida, since 1987. His primary specialty is infectious disease. His first encounter with Patient J.P. was at the Medical Center when the patient was referred to him by Respondent, the attending physician, to consult as an infectious disease specialist. When Patient J.P. was first seen, the working differential, as Dr. Prchal recalls it, was that the patient had an underlying chronic lung disease with a history of smoking and a family history of lung cancer. The patient had failed outpatient treatment and when seen could have underlying cancer and/or infections in his lung. Following the bronchoscopy performed on the patient in the hospital, Dr. Prchal wrote an order for ethambutol 1600 mg. The order was written on June 28, 2000. He wanted the patient to receive ethambutol because it was an antibiotic that is used for treating MAI. As Dr. Prchal describes, MAI is a germ in the family of tuberculosis. The patient received his first dose of ethambutol on June 29, 2000. The reason for prescribing 1600 mg of ethambutol was in recognition of the patient's weight. The dosage was presented in four tablets of 400 mg. Dr. Prchal's view of the prescription of ethambutol was that he had signed-off on the case before the patient was discharged from the hospital. At the same time, he considered the use of ethambutol to be open-ended and dependent upon the clinical response by Patient J.P. beyond his discharge. The concluding point for using ethambutol was to be decided by Respondent, in Dr. Prchal's perception, in that Respondent was the attending physician and the main person in charge of the case. Dr. Prchal's view of the choice of dosage of milligrams per kilograms of weight ranging from 15 mg to 25 mg per kilogram of weight, depends upon the person's clinical circumstance. The common starting dose is 25 mg per kg, in his view. Dr. Prchal's experience with ethambutol is that he had prescribed ethambutol to more than 50 patients. Dr. Prchal realized that optic neuritis is a potential side effect in the use of ethambutol. Dr. Prchal does not believe that baseline vision testing is necessary before providing ethambutol therapy. Dr. Prchal is familiar with the PDR concerning ethambutol, which he considers to be the manufacturers guidelines for use of that medication. In relation to the PDR reference to monthly testing for visual acuity during the use of ethambutol, particularly in dosages in the amount of 25 mg per kg, Dr. Prchal refers to the difficulty in having an ophthalmologist see patients for screening in the Ocala area and the difference of opinion among members of the medical community concerning screening. He does not believe that there is a specific standard to be followed in the community for screening. When Patient J.P. was in the hospital receiving his first dosage of ethambutol on June 29, 2000, Dr. Prchal indicated that baseline vision testing was not available in that setting and could only be done following the discharge of the patient. The frequency of testing beyond baseline testing would be on a case by case basis. According to Dr. Prchal, visual monitoring is part of the overall monitoring in the use of ethambutol. In Dr. Prchal's physician progress notes for Patient J.P. made on July 1, 2000, at the hospital, pertaining to ethambutol he referred to "appropriate monitoring." He then goes on to say that he "will sign off." He explains the latter reference to indicate that he was signing-off on the case. (Petitioner's Exhibit No. 1, page 121) Dr. Prchal saw Patient J.P. on July 26, 2000. At that time the patient was continuing with ethambutol. Dr. Prchal inquired about any visual symptoms. Patient J.P. responded that he did not have visual symptoms. The patient told Dr. Prchal that he had been referred to the Marion County Health Department. In Dr. Prchal's opinion the patient's medical condition at the time was better and the medicine seemed to be working. This is taken to mean that the ethambutol was working. Dr. Prchal saw Patient J.P. on August 8, 2000. This was their last visit. As with the visit on July 26, 2000, when Dr. Prchal saw Patient J.P. on August 8, 2000, the patient expressed no complaints about his vision. On August 8, 2000, Dr. Prchal had determined that the patient did not have tuberculosis, and medications to treat that disease were not necessary and could be discontinued. The medications for treating tuberculosis were IMH, Tyrazinamide and Rifampin. Dr. Prchal thought that ethambutol for treating MAI was still called for, together with Biaxin. Dr. Prchal did not have in mind a specific dosage of ethambutol. Being persuaded that Respondent was the attending physician overseeing the care, Dr. Prchal made known his views in the correspondence to Respondent on August 18, 2000. (Petitioner's Exhibit No. 1, pages 87 and 88) Dr. Prchal believes that the reason for Patient J.P.'s visits on July 26, 2000, and August 8, 2000, was Respondent's desire to know what medications still needed to be continued in treating the patient. EYE CARE The day before Patient J.P. saw Respondent on December 27, 2000, the patient had been at Ritz Eye Care. The reason for his visit was "check eyes-has trouble seeing." (Petitioner's Exhibit No. 1, page 192). On the visit to Ritz Eye Care he was seen by Daniel L. Ritz, O.D. Dr. Ritz consulted with Robert N. Mames, M.D., specializing in diseases and surgery of the Vitreous and Retina. Dr. Mames performed an ophthalmic examination and diagnosed the Patient J.P.'s condition as (1) decreased visual acuity in both eyes; (2) minimal nuclear sclerosis; and (3) history of lung abscess, Mycobacterium Avium. In his impression Dr. Mames said "etiologies include optic neuropathy secondary to ethambutol versus CAR syndrome (Canon-associated retinopathy), which is unlikely with no history of cancer." These findings were made in the report from Dr. Mames to Dr. Ritz dated January 16, 2001. (Petitioner's Exhibit No. 1, page 199) Patient J.P. was seen at the University of Florida, College of Medicine, Department of Ophthalmology, on March 23, 2001, by M. Tariq Bhatti, M.D., an assistant professor of the Department of Ophthalmology and Neurology. He indicates in correspondence to Mandouh H. Zeini, M.D., practicing in Ocala, Florida, "It appears that Mr. P. has bilateral optic atrophy. As you are aware, ethambutol is a well-known toxin to the optic nerves. However, I think it would be important to rule out other treatable causes of his optic atrophy. Therefore, I have recommended B-12, folate level, sedimentation rate, syphilis serology, ANA and an MRI of the brain and orbits." (Petitioner's Exhibit No. 1, page 224) On April 25, 2001, Dr. Bhatti saw Patient J.P. again. In turn, he corresponded with Dr. Zeini on that date. (Petitioner's Exhibit No. 1, page 227) With the negative work-up on the prior tests given Patient J.P., Dr. Bhatti wrote, "I suspect Mr. P.'s bilateral optic neuropathies are ethambutol- related. He has discontinued the use of ethambutol, therefore this should remain a static process with no visual loss." PHYSICIAN DESK REFERENCE: MYAMBUTOL The PDR in referring to MYAMBUTOL under the heading DESCRIPTION states: MYAMBUTOL ethambutol hydrochloride is an oral chemo-therapeutic agent which is specifically effective against actively growing micro- organisms of the genus mycobacterium, including M. tuberculosis. In the PDR under the heading INDICATIONS it is stated: MYAMBUTOL is indicated for the treatment of pulmonary tuberculosis. The PDR refers to CONTRAINDICATIONS where it states: MYAMBUTOL is contraindicated in patients who are known to be hypersensitive to this drug. It is also contraindicated in patients with known optic neuritis unless clinical judgment determines that it may be used. Under PRECAUTIONS the PDR states: . . . Because the drug may have adverse effects on vision, physical examination should include ophthalmoscopy, finger perimetry and testing of color discrimination. . . . In relation to ADVERSE REACTIONS the PDR states: MYAMBUTOL may produce decreases in visual acuity which appear to be due to optic neuritis and to be related to dose and duration of treatment. . . . Patients should be advised to report promptly to their physician any change of visual acuity. . . . Testing of visual acuity should be performed before beginning MYAMBUTOL therapy and periodically during drug administration, except that it should be done monthly when a patient is on a dosage of more than 15 mg. per kilogram per day. . . . In relation to INITIAL TREATMENT the PDR states: In patients who have not received previous antituberculosis therapy, administer MYAMBUTOL 15 mg. per kilogram. (7 mg. per pound) of body weight, as a single oral dose once every 24 hours. On the related subject of RETREATMENT the PDR states: In patients that have received previous anti- tuberculosis therapy, administer MYAMBUTOL 25 mgs. Per kilogram (11 mg. per pound) of body weight, as a single oral dose every 24 hours. . . . After 60 days of MYAMBUTOL administration, decrease the dose to 15 mg. per kilogram (7 mg. per pound) of body weight, and administer as a single oral dose every 24 hours. During the period when a patient is on a daily dose of 25 mg/kg monthly eye examinations are advised. EXPERT OPINION TESTIMONY: George Andrews Schoonover, M.D. has been licensed to practice in Florida since 1978. He practices pulmonary medicine in Jacksonville, Florida. He is certified in pulmonary medicine as well as internal medicine and has a sub-specialty in critical care medicine. For proposes of this hearing Dr. Schoonover was recognized as an expert in pulmonary diseases. To prepare himself for testimony at hearing he looked at the materials in Petitioner's Exhibit No. 1, which describes the care and treatment received by Patient J.P. during the relevant period. He also looked at the PDR in relation to MYAMBUTOL (ethambutol hydro-chloride). (Petitioner's Exhibit No. 3) His testimony was offered as a consultant for Petitioner. It supports Petitioner's attempt to impose discipline against Respondent's license. In interpreting the physician's progress note entered by Dr. Prchal on July 1, 2000, while Patient J.P. was in the hospital, which states "would sign off," Dr. Schoonover takes this to mean that Dr. Prchal will not be seeing the patient again, either in the hospital or as an outpatient, unless asked to formally consult at a future date. (Petitioner's Exhibit No. 1, page 121) Patient J.P. was discharged from the hospital on July 5, 2000, by Nagesh Kohli, M.D. Dr. Schoonover points out that the discharge summary explained to the patient in the discharge instructions that the patient, if experiencing any recurrence of symptoms, dyspnea, fever or questions or concerns, may call the Respondent. As well, the discharge instructions note that the patient was to follow up with Dr. Mitra in three to four weeks. (Petitioner's Exhibit No. 1, page 77) This instruction tends to coincide with the patient's visit to Respondent on July 19, 2000. Dr. Schoonover commented on the medications that Patient J.P. would continue upon discharge, in particular ethambutol 1600 mg q.d., part of the discharge summary by Dr. Kohli. This is as distinguished from the ethambutol Dr. Prchal had prescribed earlier in the hospital stay. In a patient medication record for Patient J.P. maintained by Respondent's practice, information is contained concerning ethambutol use over time. (Petitioner's Exhibit No. 1, page 9) Dr. Schoonover refers to the dosage of 400 mg four times per day, on July 19, 2000, October 23, 2000, and December 27, 2000, reflected in the patient record. Based upon the record, Dr. Schoonover assumes that Respondent was aware of the dosage of ethambutol for Patient J.P. upon these dates when the patient was seen, indicating a lack of change in the dosage over time. Dr. Schoonover commented upon the correspondence from Dr. Prchal to Dr. Mitra dated August 18, 2000. In his reading, Dr. Schoonover believes that the correspondence points out that Respondent was the physician of record from the standpoint of monitoring Patient J.P., and in treating the patient from the hospital discharge until the patient was seen by Dr. Prchal on July 26, 2000. In this connection notes made by Dr. Prchal concerning Patient J.P. in August 2000 were interpreted by Dr. Schoonover to indicate that the patient was receiving his prescriptions for medication from Respondent. (Petitioner's Exhibit No. 1, page 270) Dr. Schoonover also mentions the August 30, 2000 note in Patient J.P.'s records maintained by Respondent's practice, which describes a call by Dr. Prchal and his office note, taken to mean the correspondence directed to Respondent on August 18, 2000, in which Dr. Prchal requests Respondent to make sure that the patient has plenty of meds (medication) while Dr. Prchal was out of town through September 18, 2000. (Petitioner's Exhibit No. 1, page 89) That note maintained by Respondent in his practice indicates that the request was honored where it states, "Done." Dr. Schoonover assumes that the reference to meds would include ethambutol. Dr. Schoonover commented on the October 23, 2000 visit with Respondent as reflected in the note made on that date by Respondent (Petitioner's Exhibit No. 1, page 90), wherein it indicates that that patient is being continued on ethambutol. Dr. Schoonover believes that Respondent was responsible for monitoring that therapy and potential side effects and drug interactions associated with ethambutol. Dr. Schoonover commented on the December 27, 2000 correspondence from Respondent to Dr. Prchal, in which Respondent describes the complaint by Patient J.P. made December 26, 2000, about some eye problem, and whether the problem was due to medication. As Dr. Schoonover was aware, Respondent responded to those remarks by stopping the ethambutol. Dr. Schoonover was asked about his ability to form an opinion with a reasonable degree of medical certainty, whether the Respondent by his treatment of Patient J.P. practiced 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. He had an opinion. That opinion was that Respondent deviated from the standard of care, that the Respondent fell below the standard of care. Dr. Schoonover feels that deviation was in two areas. The first was the failure to order eye examinations for Patient J.P. The second reason was that the Respondent did not reduce the dosage of ethambutol after two months of therapy. Dr. Schoonover offered his opinion with the belief that Respondent was the attending physician in the hospital and continued to treat the patient beyond the patient's release from the hospital. Dr. Schoonover indicated that had the Respondent not ordered an initial eye examination be done, then at some subsequent point in the care the examination should have been ordered. Concerning reducing the dosage of ethambutol, Dr. Schoonover further explains his opinion that the dosage should have been reduced by Respondent after 60 days or at least determined why the specialist (Dr. Prchal) had not reduced it after 60 days. Dr. Schoonover concludes that Respondent could have taken steps to prevent the permanent visual impairment of Patient J.P. through an initial eye examination or subsequent follow-up eye examination, finding the problem early enough that this discontinuation of the medication would resolve the problem and promote improvement before permanent damage was done. Dr. Schoonover holds the opinion that Dr. Prchal also deviated from the recognized standard of care in his treatment of Patient J.P. in relation to ethambutol. He believes that both Respondent and Dr. Prchal were in a situation wherein they shared the care and they were both equally responsible and failed to meet the standard of care for the same reasons. In essence Respondent was treating the Patient J.P. for MAI as well as Dr. Prchal. In his testimony Dr. Schoonover is less precise in his opinion concerning the responsibility for a physician to order an initial eye examination for Patient J.P., testifying that it was someone's responsibility. He then goes on to say that it was several persons' responsibility and that Respondent and Dr. Prchal were among those persons. They are the persons discussed as well as Dr. Kohli. Finally, in order to find a deviation from the standard of care by Respondent, Dr. Schoonover believes that it is necessary to show that the patient had diminished visual acuity more probably than not connected to ethambutol. His reading of the April 25, 2001 correspondence from Dr. Bhatti in particular, leads him to believe that there was a connection between the use of ethambutol and bilateral optic neuropathies as described by Dr. Bhatti. (Petitioner's Exhibit No. 1, page 227) Raymond L. Parker, Jr., M.D., has been practicing in Florida since 1976. His current practice is with Pulmonary Physicians of South Florida in South Miami, Florida. He specializes in internal medicine, pulmonary disease and critical care. He is board certified in all specialties. He testified by deposition in behalf of Respondent as an expert, in particular, in relation to his specialty in pulmonary diseases. (Petitioner's Exhibit No. 2) In the deposition the parties stipulated that the witness was an expert in pulmonary diseases. That stipulation is accepted. In preparing to offer his opinion concerning the care provided by Respondent to Patient J.P., Dr. Parker had exposure to the deposition of Respondent, the deposition of Dr. Prchal, the deposition of Dr. Kohli, medical records of Dr. Prchal, Frank's Pharmacy records, medical records of Dr. Leslie Husband, medical records of Beatriz X-Ray and Imaging Center, medical records of Dr. Zeini, medical records of Dr. DiLorenzo, medical records of the Marion County Department of Health, medical records of Express Care of Belleview, and medical records of the Monroe Regional Medical Center. Dr. Parker also had exposure to records related to Patient J.P., part of Respondent's office practice. Dr. Parker comments on the bronchoscopy performed by Respondent on June 29, 2000, while Patient J.P. was in the hospital, in which the bronchoscopic specimen showed no endoscopic evidence of malignancy. Based upon the results of the bronchoscopy in the hospital and an earlier bronchoscopy performed a Dr. Warman on June 7, 2000, Dr. Parker was persuaded that the patient was going to be treated for MAI based upon cultures that grew out from the procedures. Further, Dr. Parker refers to the discharge diagnosis when Patient J.P. left the hospital, where it is stated that the patient had atypical tuberculosis, MAI, in addition to a right-upper lobe abscess and COPD. Dr. Parker's refers to the progress note dated July 1, 2000, when Patient J.P. was in the hospital, made by Dr. Prchal, in which Dr. Prchal recommends 400 mg tablets, four times daily of ethambutol, totaling 1600 mg, as being part of a treatment for TB and MAI pending AFB culture results. Dr. Parker's reading of the note by Dr. Prchal calling for "Appropriate monitoring. Will sign off," in the context of other materials reviewed by Dr. Parker, meant that Patient J.P. was being referred to the tuberculosis health center and those persons in that facility would manage the tuberculosis and MAI issue in the future. Dr. Parker refers to information in the patient records where the wife of Patient J.P. contacted a social worker leading to the patient being informed that the tuberculosis unit did not treat MAI but that an attempt was being made to make an appointment for Patient J.P. to be seen at the adult clinic. Ultimately, Dr. Parker interprets the information he reviewed as indicating that Patient J.P.'s wife decided that an appointment needed to be made with Respondent resulting in the appointment on July 19, 2000, between the patient and Respondent. Between July 1, 2000, when Dr. Prchal wrote his "sign off" note and July 19, 2000, when the patient was seen by Respondent, Dr. Parker expressed the opinion that Respondent and Dr. Kohli were the attending physicians for Patient J.P. The prescription recommendations upon discharge would have been the responsibility of Dr. Kohli because he discharged the patient. According to Dr. Parker this included ethambutol. Dr. Parker is familiar with the PDR. He does not consider it to be an authoritative source for information among doctors. He considers that the information contained in the PDR was written years before. Consequently, it is not authoritative or up to date. Dr. Parker prescribes ethambutol for his patients but rarely. He has a special interest in MAI. He is aware of the recommendations within the PDR pertaining to visual testing and dosage for ethambutol. He considers some of the recommendations for using ethambutol to be controversial. For example, he does not recommend his patients get monthly monitoring for their vision. Instead, he recommends that they watch out for problems. He considers that this approach is the general consensus in the community where he treats patients. Specifically, Dr. Parker does not question the prescription of 25 mg per kg of patient weight for the Patient J.P. when ethambutol was first prescribed. The dosage points to the patient loosing weight, fevers and sweats, not doing well and the need to "jump on him or he would just wither away." Dr. Parker does believe that there should have been an eye test when starting the patient on ethambutol. Dr. Parker in his understanding perceives that when Dr. Kohli discharged the patient from the hospital, Dr. Kohli believed that the patient would be attending the TB Clinic for treatment and monitoring, to include baseline studies for visual acuity. Dr. Parker in his opinion looks upon the suggestion in the PDR that the dosage of ethambutol be changed over time as being a guideline and that the proper treatment is in view of the clinical needs of the patient. If the patient is improving the dosage can be reduced. If he remains very sick, he would not necessarily reduce the dose. Concerning the maintenance of 25 mg per kg over periods of three, four, five, or six months Dr. Parker says that under appropriate circumstances the maintenance of 25 mg per kg of patient weight is acceptable. He does not offer his opinion concerning this case. Concerning the prospect for reducing the dosage, Dr. Parker's review of the records does not lead him to a conclusion one way or the other. When patients are maintained on 25 mg. per kg. of patient weight, Dr. Parker expresses the opinion that more frequent eye testing is in order. If the dosage is less than that amount he would not recommend that a patient have repeat eye testing but that the patient be cautioned to quickly advise the doctor about changes in vision and or visual fields or color vision. From his review of the records Dr. Parker was aware that the patient was maintained on ethambutol 25 mg per kg of weight for approximately six months and no eye tests were provided during that period. Dr. Parker interprets the correspondence from Dr. Prchal to Respondent dated August 18, 2000, as a guiding letter for addressing Patient J.P.'s MAI, leading to the belief by Dr. Parker that Respondent deferred to Dr. Prchal in the treatment of MAI with ethambutol following that correspondence. Overall Dr. Parker does not believe that Respondent was treating Patient J.P. for MAI and had no experience with the drug ethambutol as part of that care. This meant that Dr. Parker does not believe that Respondent was addressing the MAI issue or ethambutol. Dr. Parker interprets the note in Respondent's office practice where on August 30, 2000, the call was received from Dr. Prchal referring to the office note of August 18, 2000, from Dr. Prchal. That request asks that the patient have plenty of meds while Dr. Prchal was out of town until September 18, 2000. This indicates that Dr. Prchal could not write the prescriptions and that he was requesting Respondent's office to handle the writing of prescriptions. This is not seen by Dr. Parker as turning over the management of the patient in reference to the prescriptions. In Dr. Parker's view, when consultants prescribe medication, the attending physician does not have a standard of care obligation to hold the knowledge about these drugs prescribed by the consultant for the patient. The attending physician relies upon the consultant for guidance on the drugs and any questions need to be followed up with the consultant, according to Dr. Parker. In this case he goes on to describe the expectation, upon the discharge from the hospital, that the patient would be seen by a clinic where the attending physician felt there would be necessary expertise. Dr. Parker reached an opinion on standard for care issues concerning Respondent's treatment and care of Patient J.P. His opinion is that Respondent met the standard of care because he was the treating physician limited to the lung abscess and COPD. Dr. Parker interprets the results of the July 19, 2000 visit to Respondent to be one in which Respondent realized that the patient was not going to be seen at a tuberculosis health clinic, resulting in Respondent referring the patient back to Dr. Prchal for management of MAI. Dr. Parker attaches importance to the August 18, 2000 letter from Dr. Prchal to Respondent, in which Dr. Prchal indicates a treatment plan for MAI and Respondent defers to that judgment. At the inception Dr. Parker believes Respondent was acting appropriately to refer Patient J.P. to Dr. Prchal, an infectious disease expert. Concerning the need for a baseline eye examination to be performed when ethambutol is being started, Dr. Parker thinks that is necessary. However, the physician managing the care with respect to the MAI and who ordered the medication is responsible for ordering the initial eye examination. In this case that would have been Dr. Prchal. Any follow-up eye examinations on a periodic basis would be the responsibility of the physician with a special interest in management of atypical mycobacterial disease, with some understanding of the various drugs involved, to include ethambutol. Dr. Parker believes that additional eye examinations are needed when continuing the dosage of 25 mg per kg of patient weight. Given the continuing dosage over time, Dr. Parker believes that Dr. Prchal was responsible for ordering subsequent eye examinations. In relation to the suggestion in the PDR that around 60 days the dosage of ethambutol be reduced, Dr. Parker believes that it is dependent upon the clinical response of the patient. Sometimes the dosage would be reduced earlier, sometimes later. The judgments concerning dosage would be that of the expert familiar with the MAI and drugs used to address it. SUMMARIZING FACTS: Respondent's explanation of the availability of the adult clinic in Ocala, Florida, to address Patient J.P.'s need for medications and other services only establishes that availability. It does not establish what was done at the clinic, if anything, in terms of treatment for MAI through the use of ethambutol and related vision tests. There is no proof that anything transpired at the adult clinic to treat MAI, or test for visual acuity. Whatever may have been offered to the patient in treatment and care by the adult clinic, it does not change the fact that Respondent and Dr. Prchal were involved with the treatment for MAI, to include the need to properly use ethambutol. Having considered the facts found concerning the care provided Patient J.P. by Respondent and Dr. Prchal and the opinions by the parties' experts Dr. Schoonover and Dr. Parker, Respondent has failed to practice medicine with the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Dr. Prchal was responsible for prescribing ethambutol while Patient J.P. was in the hospital. Consequently Dr. Prchal was responsible for testing initial visual acuity for the patient. The initial treatment provided was upon a request to consult made by Respondent. Dr. Prchal was also responsible for establishing the initial dosage for the patient. When the patient was discharged from the hospital, Dr. Prchal was no longer responsible for the treatment from July 5, 2000, the discharge date until July 26, 2000, when called upon again by Respondent to consult. When Dr. Prchal saw Patient J.P. on July 26, 2000, and August 8, 2000, it reestablished his responsibility but only temporarily. The treatment was turned back to Respondent as established in the correspondence following the second consult. That correspondence was dated August 18, 2000, from Dr. Prchal to Respondent involving ethambutol and its use in treating Patient J.P. Respondent had responsibility for Patient J.P. in relation to ethambutol following the patient hospital discharge and upon the visit by Patient J.P. to Respondent's office on July 19, 2000. Respondent briefly deferred to Dr. Prchal as a consultant on July 26, 2000, until he received the correspondence from Dr. Prchal dated August 18, 2000. Beyond that point in time, Respondent was responsible for Patient J.P.'s use of the medication ethambutol. This responsibility was evidenced in the Respondent's transcribed office note dated October 23, 2000, when the Patient J.P. was seen on a follow-up visit. It refers to the final note from Dr. Prchal dated August 18, 2000 and the continuation of ethambutol for the patient. It describes the need for the patient to continue on ethambutol for a year or so. On December 27, 2000, when Patient J.P. was next seen by Respondent in the office, the patient complained of an eye problem. In response Respondent "stopped his ethambutol" as of that day. During the time that Respondent was responsible for Patient J.P., related to the use of ethambutol by that patient, he was expected to make a clinical judgment about the proper dosage, but not necessarily at a two-month interval. There is no indication that he made any judgment. More significantly, given allegations in the Administrative Complaint, Respondent should have arranged periodic testing of visual acuity, while he was responsible for the use of ethambutol in treating Patient J.P., having failed to reduce the dosage from 25 mg per kg of body weight. Respondent's failure to meet the standard of care is not excused by Dr. Prchal's conduct when treating Patient J.P. with ethambutol. Respondent's belief that Dr. Prchal was all together responsible for treating Patient J.P.'s MAI with ethambutol and other medications is not accepted, realizing that to some degree Respondent undertook the treatment whether capable or not. Finally, there was no proof in this record concerning the local Department of Health, adult clinic providing treatment to Patient J.P. for MAI, to include judgment about the dosage of ethambutol and test for visual acuity. Absent such proof the responsibility fell entirely to Respondent and Dr. Prchal at various times. Their stated assumptions concerning the role, if any, played by the Department of Health, adult clinic in treating Patient J.P. without proof are unavailing and create no defense for their conduct. DISCIPLINARY HISTORY In the case of Department of Health, Petitioner vs. Purushottam Mitra, M.D., Respondent, DOH Case No. 1999-58979, a Final Order was entered. This Final Order was based upon a Recommended Order in Department of Health, Board of Medicine, Petitioner vs. Purushottam Mitra, M.D., Respondent, DOAH Case No. 01-2069PL. The Final Order concluded that Respondent had violated Section 458.331(1)(m), Florida Statutes, pertaining to maintenance of patient records justifying a course of treatment for a patient. It imposed an administrative fine amounting to $5,000.00. Respondent was also reprimanded by the Board. (Petitioner's Exhibit No. 4)
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Section 458.331(1)(t), Florida Statutes (2000), imposing an administrative fine of $10,000.00, and issuing a written reprimand. DONE AND ENTERED this 25th day of February, 2005, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 25th day of February, 2005. COPIES FURNISHED: Irving Levine, Esquire Judith Law, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Michael R. D'Lugo, Esquire Wicker, Smith, O'Hara, McCoy, Graham & Ford, P.A. Bank of America Center, Suite 1000 Post Office Box 2753 Orlando, Florida 32802-2753 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
The Issue The issue in this case is whether the Board of Medicine should discipline the Respondent's license on charges that he committed medical malpractice in violation of section 458.331(1)(t), Florida Statutes (2012), in his treatment of patient H.S. on December 1, 2012. (All statutory and rule references are to those in effect on December 1, 2012.)
Findings Of Fact The Respondent, John G. Bennett, M.D., is a licensed physician in the State of Florida, having been issued license ME 48950. His only prior discipline was in 1988 for violations not charged in this case; it resulted in two years of probation. In December 2012, the Respondent was a general practitioner working part-time for an entity called Doctors Housecalls Limited (Doctors Housecalls), which provided concierge medical care to visitors to the Miami area residing short-term in area hotels and other rental properties. When requested by a resident, the concierge would contact Doctors Housecalls by telephone and relay pertinent contact information. Doctors Housecalls would telephone a physician on its staff and relay the contact information. The physician would telephone the patient or visit the patient to initiate a doctor-patient relationship. Usually, telephone contact would result in a subsequent in-person visit with the patient. The patient would pay by cash, credit card, or insurance. Medicare and Medicaid were not accepted. The Respondent testified that on December 1, 2012, while he was either driving to dinner or already at a local restaurant, he received a call from Doctors Housecalls on his cell phone. He was given contact information for H.S. The Respondent used his cell phone to call H.S. and establish a doctor-patient relationship. The patient testified that his eyes had become irritated during a business trip to Miami Beach in December 2012. He thought he might have gotten suntan lotion in his eyes while at poolside. He called his optometrist in Pennsylvania and was given a prescription over the phone, which he filled and started taking. Although the patient could not recall the name of the medication, the evidence was clear that it was Tobramycin, an antibiotic eye drop. His Pennsylvania optometrist told the patient to go to an emergency room or get care from a local doctor if his eyes got worse. When the patient's eye irritation got worse, H.S. called the concierge where he was staying and eventually talked to the Respondent on the telephone. The patient testified that he reported the essentials of his eye problem to the Respondent--namely, that his were irritated from the suntan lotion and from the Tobramycin prescription. He testified that, in response, the Respondent prescribed a different eye drop and told him to follow up with his primary care doctor when he returned to Pennsylvania. The eye drop the Respondent prescribed was Predforte (prednisolone acetate), which is a steroid and a legend drug. The brief interaction between the Respondent and the patient was entirely by telephone. The Respondent did not see the patient in person and did not see any patient medical records or any photograph or other image of the patient's eye. The Respondent testified that initially he asked to see the patient to examine him to get a clearer picture of the patient's medical problem. He testified that the patient did not want to be seen. He testified that he then told the patient he would have to go to an emergency room and that the patient refused. He testified that he then asked some more questions and decided he could prescribe Predforte without seeing the patient. The patient denied that the Respondent asked for an in-person examination, told him to go to an emergency room, or asked him additional questions to ascertain if he could prescribe Predforte without seeing the patient. Specifically, the patient denied that the Respondent asked him if he wore contact lenses. (He normally wore them but took them out when his eyes became irritated.) He denied that the Respondent asked him if he had a history of cataracts, any recent eye surgeries, or ocular herpes. The Respondent testified that he asked these questions but did not notate the questions or the patient's negative answers in his only medical records from the encounter (which included a brief description of the presenting problems and the treatment plan in his telephone consultation form and descriptions of the diagnosis or nature of illness or injury and of the procedures, services, or supplies provided on his insurance claim form). The Respondent's testimony on these points does not ring true. While the emergency room would have taken time, the Respondent testified that he was very close to where the patient was staying when he placed the telephone call and could have gotten there to see the patient very quickly. Also, the Respondent's testimony on this point was inconsistent with the position he was taking at the hearing that the standard of care did not require him to see the patient before prescribing the Predforte. Taken as a whole, the evidence was clear and convincing that the Respondent did not insist on seeing patient H.S. and did not ask those specific questions before prescribing Predforte. At most, the Respondent may have asked a general question whether the patient had any other eye problems and gotten a negative answer. The patient's eyes got better, and he did not seek any further medical attention in Florida. About a week after his return to Pennsylvania, he followed up with his primary care doctor. By then, his eyes were better. It is not clear from the evidence why the patient's eyes got better. DOH's expert, Dr. Eugene Crouch, testified that the Respondent's treatment of H.S. was below the standard of care. He testified that it was necessary to physically examine the patient's eye, front and back using an ophthalmoscope. He testified that it also was necessary for the Respondent to get a complete medical history, including when the problem started, the circumstances that might have caused it, if the patient was taking medication that could have caused it, if there were vision changes, if the patient smoked cigarettes, if the patient was seen for the problem by another treating physician, if there was drainage coming from the eye, if the patient wore contact lenses, or if the patient had cataracts, glaucoma, recent eye surgeries, or ocular herpes. Although it is rare, ruling out ocular herpes is especially important because the steroid prescribed by the Respondent "blunts the immune system, so the virus would take over, which is potentially devastating [and] an absolute crisis at that point." Dr. Crouch testified convincingly that the eye is "tricky" for a general practitioner to diagnose and treat, and the consequences of falling below the standard of care can be serious. Contrary to the Respondent's suggestion, he did not meet the standard of care by prescribing Predforte and telling the patient to seek further treatment if the problem got worse. Dr. Crouch did not review the Board's rule 64B8-9.014 on the standards for telemedicine prescribing practice, or determine whether the Respondent complied with it, before reaching his opinion on the standard of care. Neither the rule nor the Respondent's compliance with it affected Dr. Crouch's opinion. Regardless of that and other efforts to impeach Dr. Crouch's credibility, Dr. Crouch's opinion is accepted and is clear and convincing evidence that the Respondent did not meet the standard of care in his treatment of patient H.S. The Respondent takes the position that DOH is estopped from charging him with medical malpractice under section 458.331(1)(t) because it waived that charge by agreeing to dismiss, with prejudice, the count charging a violation of rule 64B8-9.014. To the contrary, it is clear that DOH had no intention of waiving the medical malpractice charge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding the Respondent guilty of one count of medical malpractice in violation of section 458.331(1)(t), fining him $5,000, placing him on one year of indirect supervision probation with appropriate terms and conditions, and assessing costs of investigation and prosecution. DONE AND ENTERED this 29th day of July, 2015, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 29th day of July, 2015. COPIES FURNISHED: Andre Ourso, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin C-03 Tallahassee, Florida 32399-3253 (eServed) Daniel Hernandez, Interim General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 (eServed) Ronald Chapman, Esquire Chapman Law Group 1834 Main Street Sarasota, Florida 34236-5912 Steven D. Brownlee, Esquire Chapman Law Group 1834 Main Street Sarasota, Florida 34236-5912 (eServed) Jack F. Wise, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Yolonda Y. Green, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed)
The Issue Whether Respondent, a licensed physician, committed the offenses set forth in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is the agency of the State of Florida charged with regulating the practice of medicine in the State. At all times pertinent to this proceeding, Respondent was licensed as a physician in the State of Florida and practiced in the specialty of ophthalmology. Respondent's license, number ME 0022716, expired while this matter was pending. On May 25, 1993, Petitioner filed an Administrative Complaint against Respondent who thereafter timely requested a formal hearing. The matter was referred to the Division of Administrative Hearings, and this proceeding followed. Shortly after filing the request for hearing Respondent's whereabouts became unknown to Petitioner. Despite diligent search and inquiry, Petitioner was unable to locate Respondent. Notices mailed by the Division of Administrative Hearings to his last known address were returned. Constructive notice of the hearing in this matter was given to Respondent by publication. In May 1991, Respondent worked at Lucy Optical Store in the Little Havana section of Miami, Florida. On May 13, 1991, Augustin Garcia, an investigator employed by Petitioner appeared at Lucy Optical Store in an undercover capacity. Mr. Garcia posed as a patient who complained that he was having difficulty seeing at night and that lights were causing him to have headaches. Mr. Garcia requested an eye examination. After discussing his complaints, Respondent led Mr. Garcia from the waiting room to an examining room. On May 13, 1991, Myriam Garcia Lacayo was working at Lucy Optical Store as Respondent's medical assistant. Ms. Lacayo is not licensed by the Petitioner in any capacity. While Respondent was present in the examining room, Ms. Lacayo performed a refraction test on Mr. Garcia's eyes. Upon completing the refraction test, Ms. Lacayo told Mr. Garcia that he did not need glasses and instructed Mr. Garcia to return within nine months to a year for a follow-up examination. Ms. Lacayo further advised Mr. Garcia that he should wear non- prescription eyeglasses with a light tint for night driving. Mr. Garcia was not told by anyone that he had not been given a complete eye examination. After the examination was completed, Mr. Garcia revealed his true identity and requested the medical records that had been taken, including a prescription that Mr. Garcia had seen Respondent write. Respondent became very upset upon learning Mr. Garcia's true identity and refused to give him the prescription. The manager of Lucy Optical Store gave Mr. Garcia the medical record, consisting of a one page document, that had been generated as a result of his visit. Respondent failed to administer to Mr. Garcia appropriate tests for glaucoma or for cataracts. The standard of care requires that a patient such as Mr. Garcia be evaluated for glaucoma and cataracts when the patient requests a complete eye examination. Failure to perform these tests may falsely reassure the patient that his eyes have been fully examined and found to be healthy. If these tests are not performed, the ophthalmologist should explain to the patient that he had only had a refraction test and not a complete eye examination. Respondent practiced below the standard of care in failing to test Mr. Garcia's eyes for glaucoma and cataracts. Respondent's medical records fail to document any reason why appropriate tests for glaucoma and cataracts were not performed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of facts and conclusions of law contained herein. IT IS FURTHER RECOMMENDED that Petitioner assess an administrative fine in the amount of $5,000.00 against Respondent and require that Respondent demonstrate that he has the present ability to practice medicine with the requisite degree of skill and safety prior to the renewal of his license to practice medicine in the State of Florida. IT IS FURTHER RECOMMENDED that his licensure be placed on probation for a period of two years if it is renewed. DONE AND ENTERED this 3rd day of January, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January 1995.
