Findings Of Fact Petitioner was a candidate for the May 1988, Chiropractic Physiotherapy certification examination. The exam consists of a written and an oral part, covering various areas of chiropractic physiotherapy. The written and oral parts of the exam are graded separately and a candidate must score 75 points on each part in order to pass and be certified in Physiotherapy. Petitioner had previously passed the written portion of the exam and was attempting only the oral portion of the physiotherapy exam. Petitioner claims he was incorrectly graded on the oral exam in the areas of manual, ultrasound and galvanic therapy. At the hearing Petitioner abandoned his claim that he was incorrectly graded on the galvanic therapy portion of the exam and that claim is not considered further for purposes of this recommended order. Petitioner obtained a score of 66.6 on the oral exam. The oral practice exam for physiotherapy certification is graded subjectively according to a candidate's response to questions asked by two grading chiropractors. The graders have been licensed to practice chiropractic for more than five years in Florida and have undergone some grade standardization training prior to examining the candidate for certification. Each grader assigns his or her point score independent of the other grader. A candidate's response therefore has two scores assigned by each grader. The points given by each grader are totalled. The two totals are then averaged together for the overall score on the exam. Some difference in the points assigned often occur. However, the difference between the two scores seldom exceeds 1 point and would therefore not be an unreasonable discrepancy when consideration is given to the effects of grading a subjective test and the effects of averaging the two point scores given by each grader. The grade range is from 1-4 points with one being the lowest score and four being the highest score. A score of 4 points is given when a candidate demonstrates superior or expert knowledge in the subject area tested. A score of 3 points is given when a candidate demonstrates minimal competency in the subject area tested. A score of 2 points is given when the candidate's answer is wrong but not dangerous to the patient. A score of 1 point is given when a candidate's response is wrong and dangerous to the patient. Dr. Brennan scored a 1.5 and 2.5 on the manual portion of the exam and a 1.5 and 2.5 on the ultrasound portion of the exam. In both instances Petitioner's answers to the questions covering the manual and ultrasound areas of the exam were wrong. Therefore the scores given by each grader could not exceed 2.9 points. Even if the highest allowable score is awarded for Petitioner's responses the additional points are not sufficient to raise Petitioner's score to a 75. Based on the above facts Petitioner has failed to present sufficient evidence to establish that he should be certified in Chiropractic Physiotherapy. More importantly, however, Petitioner's answer to the ultrasound portion of the exam was wrong and dangerous to the patient. Petitioner was clearly confused by the manner in which the question was asked by the examiner. However, the confusion did not exclude the candidate's ability or opportunity to give the correct answer in order to take the safest course of therapy to the patient. To Petitioner's credit he did demonstrate competency in his responses to the other question pertaining to the ultrasound area. It was the application of that knowledge that Petitioner failed to demonstrate. The explanations given by each grader, justifying a failing score given to the candidate, reflect the above. Therefore, neither of the graders scores on the ultrasound portion of the exam can be said to be incorrect and should remain the same. Petitioner failed to demonstrate that the two grader's scores on the manual and ultrasound portion of the exam were devoid of logic or reason for its respective assignment. Petitioner, therefore, failed to demonstrate that he was incorrectly graded on the oral exam and should be certified in Chiropractic Physiotherapy.
Recommendation Based on the foregoing Findings of Fact acid Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding that Petitioner failed to demonstrate that he was incorrectly graded on the Chiropractic Physiotherapy exam and should be certified in the area of Chiropractic Physiotherapy. DONE and ENTERED this 30th day of May, 1989, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 1989. APPENDIX The facts contained in paragraphs 1, 2, 3 and 4 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 5 and 6 of Respondent's Proposed Findings of Facts are subordinate. COPIES FURNISHED: Brian P. Brennan 5828 Rawson Lan Pensacola, Florida 32503 E. Harper Field General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32390-0729 Kenneth Easley Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32390-0729 Pat Gilford Executive Director 1940 North Monroe Street Suite 60 Tallahassee, Florida 32390-0729
The Issue Whether Respondent medical physician violated Subsection 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances; Subsection 458.331(1)(m), Florida Statutes, by failing to keep medical records to justify the course of treatment of a patient; and/or Subsection 458.33(1)(p), Florida Statutes, by performing surgery at the spinal level of C6-7 without patient consent and without statutory exception.
Findings Of Fact Petitioner, through the Board of Medicine, is the state agency which licenses and has regulatory jurisdiction of medical physicians. At all times material, Respondent has been a licensed medical physician in the state of Florida, having been issued license No. ME 0017399. He is board-certified in orthopedic surgery, is a member of many spine-specialized medical societies, and is highly published in the field of spinal surgery. He has devoted 100 percent of his practice to spinal surgery since 1989. On or about August 16, 1991, Patient R.L., then a thirty-two-year-old woman, was referred to Respondent with complaints of neck and shoulder pain due to a work-related accident. On August 16, 1991, Respondent diagnosed R.L. as having cervical spondylosis with radiculopathy, and thoracolumbar scoliosis. He recommended she undergo magnetic resonance imaging (MRI) of her cervical spine at North Florida Regional Medical Center (NFRMC). R.L. underwent MRI of her cervical spine at NFRMC on September 20, 1991. The radiologist's report of R.L.'s September 20, 1991, MRI indicated no disc herniation, central stenosis, or foraminal impingement at the C3-4 and C4-5 disc levels or at the C6-7 and C7-T1 levels. The radiologist's report did indicate that at the C5-6 level there was a small abnormal posterior protrusion of disc material, centrally and slightly eccentric towards the right side and that axial images demonstrated a small, right-sided central/right paracentral herniation. The report added that a very mild and early uncontrovertral spurring was noted at this level but was not resulting in impingement for exiting nerve roots. R.L. next saw Respondent on September 24, 1991. On that date, Respondent reviewed R.L.'s cervical spine MRI with her and diagnosed a probable small central and right paracentral herniation at the C5-6 level. Respondent was then of the opinion that the cervical spine MRI did not clearly delineate a disc herniation at R.L.'s C5-6 level. Respondent accordingly recommended that R.L. undergo a myelogram-CT scan. Respondent did not indicate to R.L. that he detected any pathology at C6-7. On October 29, 1991, R.L. underwent a cervical myelogram and CT scan at NFRMC. The radiologist's report indicated an extradural defect at C5-6, which was moderate in size and touched the cord but which did not cause any cord compression. The report also stated that the nerve sleeved well and that there was a very slight posterior subluxaton of C5 on C6 associated with this. The report did not indicate any pathology at C6-7. R.L. next saw Respondent on November 14, 1991. On that date, Respondent reviewed R.L.'s cervical myelogram and CT scan with her, diagnosed a herniated nucleus pulposus at C5-6, and recommended C5-6 anterior cervical fusion with plates. Respondent did not, on that date, indicate to R.L. that he had identified any pathology at C6-7. R.L. testified that before surgery, Respondent did not tell her that he would be removing any disc other than the one at C5-6; that he did not indicate he thought R.L. would need more surgery than the surgery planned at C5-6; or that he might discover something during the planned surgery which would require the removal of any disc different than C5-6. Respondent testified that he did not recall whether he did or did not tell R.L. that C6-7 might some day require an operation or that C6-7 might need work while he was operating on C5-6. His office notes for January 21, 1992, only state She returns today for her preoperative visit. The nature and extent of her surgery has been explained to her and she voices understanding. R.L.'s and Respondent's testimony agree that before surgery, Respondent intended to remove and fuse only at C5-6; that R.L. understood and agreed that Respondent would remove only the disc at level C5-6 and fuse it; and that before surgery, neither of them expected Respondent to operate at a level of R.L.'s cervical spine different than C5-6. Experts for Petitioner and Respondent, (Drs. Gonzalez- Perez and Smith respectively), concurred that if Respondent discussed the proposed procedure, most common and potential risks and complications, and the potential course of rehabilitation with R.L., and if Respondent and R.L. then reached a mutual decision to operate, full disclosure and informed consent had occurred, regardless of whether a written consent form had been filled out and signed. On January 29, 1992, R.L. signed an NFRMC "Authorization for Surgical Treatment and/or Special Procedure" which provided: I, the undersigned, a patient in the below named hospital, hereby authorize Dr. Lowery (and whomever he may designate as his assistants) to administer such treatment as is necessary, and to perform the following operation: anterior cervical fusion and instruments with autolugus and/or bone bank bone and such additional operations or procedures as are considered therapeutic on the basis of findings during the course of said operation. I also consent to the administration of such anesthetics as are necessary with the exception of none. Any tissues or parts surgically removed may be disposed of by the hospital in accordance with accustomed practice. I hereby certify that I have read and fully understand the above AUTHORIZATION FOR SURGICAL TREATMENT, the reasons why the above-named surgery is considered necessary, its advantage and the possible complications, if any, as well as possible alternative modes of treatment, which were explained to me by Dr. Lowery. I also certify that no guarantee or assurance has been made as to the results that may be obtained (Underlined portions were written in; the remainder was pre-printed). The foregoing hospital authorization did not identify the level of the cervical spine where the procedure would be performed. It merely indicated that an anterior cervical fusion would be performed, without stating which of the seven vertebrae were intended to be fused. Dr. Gonzalez-Perez, Petitioner's expert witness, testified that this is not the type of release a reasonable and prudent physician would use for informed consent. Petitioner contends that Respondent's use of the authorization form deviated from the level of care, skill, and treatment recognized by a reasonable and prudent physician as being acceptable under similar facts and circumstances, but even Petitioner's expert, Dr. Gonzalez-Perez, testified that such a form is usually filled-out by a nurse employed by the hospital, and that if Respondent and R.L. went through an informed consent conversation prior to surgery, that would be sufficient, without a written acknowledgement or authorization, for Respondent to have met the standard of care for informed consent and patient pre-authorization for surgery at the mutually understood level of C5-6. On February 3, 1992, Respondent performed an anterior cervical fusion with plates on R.L. at NFRMC, with the intention of operating at the C5-6 level of R.L.'s cervical spine. In doing so, he utilized a portable fluoroscopy unit, intraoperatively, to ascertain the correct level of R.L.'s cervical spine for the anterior cervical fusion with plates. The success of such a procedure depends upon properly identifying the pathological discs. It is critical to correctly ascertain the site where the surgery is to be performed. Failure to correctly identify the location for surgery can result in a failure to perform the intended surgery, a failure to resolve the problem which required the surgery, and/or performing surgery in a location not requiring surgery. The method Respondent used was to palpate the boney structures, make an incision to the vertebral bodies, insert a single needle, take an X-ray, and see if the needle had correctly located where surgery should take place. Respondent's expert, Dr. Smith, and Respondent testified that they prefer the one-needle method utilized by Respondent. Dr. Gonzalez-Perez admitted that use of X-rays, including fluoroscopy in the operating room in order to locate the level of the operation is the "gold standard" of care in this type of orthopedic surgery. He would have used a two- needle technique for locating and checking the location of the surgical site, but even he considered the one-needle method to constitute acceptable medical practice. In R.L.'s case, Respondent placed the single needle at the C7-T1 level, and the fluoroscopic lateral spot films of R.L.'s cervical spine obtained in the operating room showed the needle at the C7-T1 level. Respondent, however, concluded incorrectly that the fluoroscopic lateral spot films showed a needle at the C6-7 level. Respondent miscounted from the vertebra landmark of what he thought was C-2, and removed and fused the wrong disc. On February 3, 1992, after drawing the conclusion that the intraoperative fluoroscopic lateral spot films showed a needle at the C6-7 level of R.L.'s cervical spine, Respondent proceeded with an anterior cervical fusion with plates at what he assumed was the C5-6 level of R.L.'s cervical spine, which, in fact, was the C6-7 level. Respondent, in fact, performed an anterior cervical fusion with plates at the C6-7 level of R.L.'s cervical spine. Respondent surmised in his testimony that he had been confused because on R.L., the C-2 and C-3 structures were very similar. Dr. Gonzalez-Perez maintained that Respondent should have been able to locate the correct level based on the jaw bone and part of the skull being visible in the first and pre-removal X-ray (lower image of P-7). Respondent disagreed that skull and jaw are the best landmarks. Dr. Smith testified that C-2 and C-3 look similar due to their scalloped edges, but either would be an appropriate point from which to begin counting. He, personally, would normally begin counting with C-2, which is a very distinctive- looking vertebra. He opined that even reasonable and prudent physicians can make mistakes in counting and removing the wrong disc. Dr. Gonzalez-Perez felt that Respondent could have and should have involved others in the operating room in counting vertebrae and selecting the surgical location. Respondent disagreed, maintaining that only the surgeon should make such a decision. Dr. Smith testified that he, personally, asks someone else in the operating room to check him after he has counted. Petitioner contends that by failing to correctly identify the level of the spine and to make certain of the operative level before proceeding, Respondent failed to practice with the level of care, skill and treatment which is recognized by a reasonable and prudent medical physician under similar facts and circumstances as being acceptable and that Respondent had the information and should have been able to properly and correctly count the levels of the cervical spine and find the appropriate disc. However, even Petitioner's expert, Dr. Gonzalez-Perez, testified that Respondent met the standard of care up to the point at which Respondent performed the actual operation, and that operating at an unintended level is a known complication of such surgery, as stated in the textbooks. Respondent testified that during the surgery, he found a disc fragment and a tear in the posterior longitudinal ligament (PLL) at the wrong level (C6-7) where he removed the wrong disc, and that during the surgery, he relied upon this discovery as indicative that he was operating at the correct location/level (C5-6). Respondent testified that he removed the piece of disc at C6-7 in one piece, found a rent in the PLL behind it, and believed the pathology he had found corresponded to what he had expected to find at the C5-6 level, based on his preoperative evaluation. Dr. Gonzalez-Perez testified that a rent in the PLL cannot be seen until the disc is removed, so viewing it does not verify the location at which a discectomy should occur. He also stated that although a surgeon tries not to push down, occasionally s/he must dig in and push tissue to the back so as to remove the desired tissue and that portions of the disc may remain in the disc space until they are scooped out. Therefore, the procedure itself can result in a tear of the PLL. In light of the pre-operative tests not showing disc material or a PLL tear, Petitioner urges that the conclusion be drawn that Respondent's surgery itself caused the tear and protrusion at R.L.'s C6-7 level, but Dr. Gonzalez-Perez did not clearly state such a conclusion. Dr. Smith testified that finding such pathology after beginning the disc removal would have been a comforting (re- enforcing) sign to any surgeon that s/he had operated at the correct level, but Dr. Smith acknowledged that such a sign would not identify the correct disc for removal before removal actually began. Due to the superiority of Respondent's and Dr. Smith's cervical spine surgical experience over that of Dr. Gonzalez- Perez, who does only an average of two cervical spine operations per year, and due to Respondent's explanation of how the PLL/annulus structures differ in the cervical spine from the lumbar spine, it is found that even if the Respondent did not see the disc fragment and PLL rent until after he began removal of the C6-7 disc, the pathology at C6-7 reasonably reinforced Respondent's belief that he was operating in the correct location of C5-6 for the duration of the operation. No one clearly testified that the C6-7 removal and fusion was necessary on February 3, 1992, or that it would become necessary at some later date. Likewise, no one clearly testified that the removal and fusion at C6-7 was not necessary on February 3, 1992, or would not have become necessary later. Dr. Smith testified that in his pre-operative discussions with his own patients, they usually tell him to fix any additional unexpected pathology he finds once he begins an operation. The evidence falls short of being clear and convincing that the wrong disc removal and fusion on February 3, 1992, resulted in any subsequent damage to R.L.'s spine. While still in the operating room, Respondent checked his work with a second fluoroscopic image (upper image of P-7). Respondent and both experts agreed that this second image would cause a surgeon who thought he had counted correctly to assume he had removed the correct disc and created a good fusion at the correct level. However, the two experts concurred that there were no clear landmarks whatsoever on this view to show that the operation had occurred at either the correct or the incorrect level. Respondent's operative report for the February 3, 1992, procedure incorrectly described removal of the C5-6 disc space. On February 4, 1992, postoperative X-rays taken at NFRMC showed that the anterior cervical fusion with plates had, in fact, been performed at the wrong level, C6-7, of R.L.'s cervical spine. Copies of the report concerning the X-rays were supplied to Respondent at about that time. About a week later, the radiologist's narrative to the same effect was provided to Respondent. Nonetheless, Respondent did not discover his error for nearly six months. After the surgery, R.L. continued to experience pain, presumably because she still had the same uncorrected, pre- operative problem at C5-6. R.L. returned to Respondent on an outpatient basis on February 11, 1992. On that date, Respondent performed a radiographic examination of R.L.'s cervical spine but made no mention to her that the anterior cervical fusion with plates had been performed at the wrong level. He made no such notation in her chart. Respondent told R.L. that he had looked at the X- rays and everything had gone well and everything looked good. R.L. next saw Respondent on March 12, 1992, when he again performed a radiographic examination of R.L.'s cervical spine. At that time, Respondent made no mention of the C6-7 level of the anterior cervical fusion with plates in her chart and again did not tell R.L. that he had removed the wrong disc and fused the wrong location. R.L. next saw Respondent on April 23, 1992, and again Respondent did not reveal his error to R.L., but he did make a narrative note to her chart which stated that R.L. "is now approximately eleven weeks from having an ACF, C6-7." Even so, Respondent did not discover he had operated on the incorrect level until R.L.'s July 23, 1992 visit, at which time, he informed R.L. what had occurred. Respondent's July 23, 1992, narrative note for R.L.'s chart makes the statement that I have explained that there is a discrepancy in her clinical exam and also the intraoperative findings and postoperative x- rays, both to the patient and her rehabilitation counselor, Ms. Terry L. Smith, R.N. Respondent clearly remembered the presence of the nurse on July 23, 1992.1 Dr. Gonzalez-Perez opined that Respondent's performance was acceptable up to the operation itself, but was not up to the acceptable level of care thereafter, because from the first (lower image P-7) fluoroscopy image, Respondent should have been able to tell the needle was on the wrong level by counting vertebrae; because Respondent should have involved others in the operating room in analyzing the X-ray; because Respondent should not have removed the C6-7 disc, based on his own preoperative work-up; and because Respondent should not have relied on the rent and fragmentation at C6-7 to confirm his conclusion that he was operating at the correct level/location. Dr. Gonzalez-Perez faulted Respondent's record-keeping for failing to write in a recommendation; because his records did not justify the removal and fusion at C6-7; and because Respondent did not follow his own initial surgical plan. Ultimately, however, Dr. Gonzalez-Perez testified that it is not "malpractice" to operate at the wrong level, provided the error is discovered at the end of the operation, because one may decide to re-operate correctly. Dr. Smith's opinion was that an acceptable level of care had been met if Respondent informed the patient of his error once he discovered it. There is no dispute that at the July 1992 office visit, Respondent offered to do the C5-6 surgery for R.L. immediately. Respondent has had no prior or subsequent disciplinary actions against him. This event occurred three years after he began to devote himself exclusively to spinal surgery. Eight years have passed since this event. There is no evidence of any other level of practice problem of any kind.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Medicine enter a final order finding Respondent guilty of violating Subsections 458.331(1)(m),(p), and (t), Florida Statutes, with mitigating circumstances, reprimanding him for same, and imposing a $750.00 fine. DONE AND ENTERED this 28th day of December, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 28th day of December, 2000.
Findings Of Fact The Respondent is a chiropractic physician who practices in Daytona Beach, Florida, and is licensed by the State Board of Chiropractic Examiners to practice in the State of Florida. The Respondent opened the office where he presently practices in September, 1978. On or about July 10, 1979, Judith M. Matovina telephoned the Respondent's office regarding severe headaches which she had been suffering. She had been referred to the Respondent by a friend, Michael Davis, who was studying to be a chiropractor, and who was also a friend of the Respondent. An appointment was initially made for Thursday, July 12; Ms. Matovina preferred to make an appointment for a time that would not interfere with her job, and an appointment was ultimately made for 10:30 a.m. on Saturday, July 14, 1979. Ms. Matovina arrived at the Respondent's office for her appointment at the scheduled time. She sat in the waiting room for approximately five minutes. Dr. Wagner came out to the waiting room after he treated another patient and introduced himself to Ms. Matovina. He gave her a pamphlet to read regarding the treatment of headaches by chiropractors, and a form to fill out which provided personal background and a description of symptoms. She filled out the form and handed it to the Respondent who escorted her to the examination room. He asked her questions about her headaches and about her personal life. She responded that she did not believe the headaches were tension related. He told her to remove her clothes and put on a gown. He left the examination room. Ms. Matovina removed her bra and blouse, but left her slacks and shoes on. After knocking, the Respondent reentered the examination room. The Respondent thereafter engaged in conduct, a portion of which was legitimate and proper chiropractic examination, treatment and therapy; and a part of which can only be construed as an effort to induce Ms. Matovina to engage in sexual activity with the Respondent. He engaged in conversation about his poor relationship with his wife, his relationships with his girlfriends, and the fact that he had had a vasectomy. Ms. Matovina had not been to a chiropractor before, and she expressed fear as to the nature of some of the manipulations and other treatment which the Respondent performed. He referred to her as "such a baby" in response to her fear. He examined her eyes, and told her that she had pretty blue eyes and that his girlfriends had brown eyes. Ms. Matovina asked him where his receptionist was, and the Respondent responded that he did not have a receptionist on Saturday because that is when he scheduled his pretty patients. During the course of one manipulation in which the Respondent held Ms. Matovina's feet, he told her that she had cute feet. In the course of one manipulation in which the patient stood against the wall with the Respondent's arm around her waist, he told her, "They are playing our song," in response to the music on the office stereo system. He held her hand as if he was going to dance with her. He kissed her twice on the shoulder, moved his hand toward her breast, and brushed his hand across her breast. Several times during the course of the examination, Ms. Matovina said that it would be best for her to leave, but the Respondent kept saying that they should try one more manipulation or therapy treatment. Ms. Matovina protested during the course of much of the treatment, and eventually insisted upon getting dressed and leaving. During the examination, the Respondent on several occasions referred to Ms. Matovina's "pretty blue eyes," to the fact that she was "such a baby," to the fact that he had other girlfriends, and a vasectomy. After she got dressed, the Respondent behaved as though none of these things had happened. Ms. Matovina insisted upon paying for the session at that time rather than the following Monday, when the Respondent wanted to schedule another session. Ms. Matovina then left the office. She was there for approximately two hours. The following week, the Respondent had his office contact Ms. Matovina to schedule further sessions, but she refused to accept or to respond to the phone calls.
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
Findings Of Fact The Board introduced and the affidavit of Charles E. Barner, Jr., was received into evidence as Exhibit 1. Exhibit 1 reflects that Ronald H. Draxten holds license number 1232 issued by the Florida Board or Chiropractic Examiners. Mrs. Hellen Rhew, the mother of Bonnie Ann Hullet, was called and testified. Bonnie Ann Hullet was taken by her mother to Dr. Draxten for treatment of a sore neck. She received chiropractic treatment from Dr. Draxten in early May 1975. On their second visit, Mrs. Rhew advised Dr. Draxten that her daughter suffered from stomach cramps and nausea following her treatments. Dr. Draxten advised Mrs. Rhew that at their next visit he could treat her daughter to relieve the stomach cramps and nausea. Dr. Draxten did not advise Mrs. Rhew of the nature of the treatment. On the following visit, after having treated her in the manner he had in the past the daughter and mother were taken to a treatment room approximately 10 feet X 20 feet, as referenced by Mrs. Rhew to items in the courtroom. Her daughter was placed on a treatment table on one side of the room, and Mrs. Rhew was seated directly opposite her. Dr. Draxten, standing between Mrs. Rhew and her daughter, began treating the daughter. After a short while Dr. Draxten left the room advising Mrs. Rhew he would return shortly. Bonnie Ann Hullet, Mrs. Rhew's daughter, stated that after she had laid down on the table, Dr. Draxten had pressed on her stomach with his hands, then she felt a sharp pain. Thereafter, the doctor left. When Dr. Draxten returned, she saw a needle. Mrs. Rhew saw the needle while it was in her daughter's abdomen. Dr. Draxten advised Mrs. Rhew that her daughter would have some reaction to the treatment which might include nausea and cramps, but she would get better and have less trouble than before. It was represented by both counsel for the Board and Dr. Draxten that Dr. Draxten had attended a course in acupuncture and had graduated, however, the Board did not recognize the school which he had attended. Thereafter, Dr. Draxten had enrolled in a school recognized by the Board, and on the day following the treatment of Bonnie Ann Hullet was examined by the second school which was recognized by the Board and successfully passed. Six weeks later the Board certified Dr. Draxten to practice acupuncture as a part of chiropractic for which he had been trained, however, the Board had officially discouraged Dr. Draxten from indicating his eligibility to practice acupuncture in the manner delineated by statute.
Recommendation The Hearing Officer recommends that Dr. Gerald Draxten receive a letter of reprimand for having violated the provisions of Rule 21D-1.04, F.A.C., and thereby violated Section 460.13(3)(h), F.S. DONE and ORDERED this 23rd day of February, 1976. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire Counsel for Petitioner John DuVall, Esquire Counsel for Respondent
The Issue The issue in this case is whether the Respondent should be disciplined for allegedly practicing medicine below the generally accepted standard of care when he performed a laminectomy and discectomy at the incorrect level of a patient's lumbar spine.
Findings Of Fact Respondent, William O. DeWeese, is a Florida licensed physician, having been issued license number ME 0025687. Respondent is Board-certified in Neurological Surgery and is a Fellow of the American College of Surgeons. He has practiced medicine since graduating from medical school in 1968. He received his Florida license in 1975 and established his practice in Tampa where he has continuously practiced medicine ever since. In twenty-four years of practice, the Florida Board of Medicine has never disciplined Respondent. Respondent's Standard Practice Respondent conducts his practice primarily through two local hospitals, St. Joseph’s Hospital and University Community Hospital. He has a typical practice common to neurological surgery. On average, Respondent performs three to four laminectomy-discectomy procedures each week. Before performing surgery on the spine, Respondent’s protocol is to review available medical records and films (CT, MRI, X-ray), obtain an EKG, obtain chest X-rays, and blood work. During surgery, he routinely obtains "real time" radiological confirmation of the level of the spine where he intends to operate based on his initial pre-surgical work-up. Respondent does this by marking the level where surgery is to take place with radio-opaque material (usually a cottonoid sponge), and has an X-ray film of the patient's spine and the marker exposed and developed in the operatory (OR). Respondent reviews the X-ray in the OR before having the X-ray technician take it to the radiology department for review by a radiologist. The radiologist on duty reviews the X-ray and usually writes on the X-ray to label the location of the marker and has the technician bring the labeled X-ray back to the OR; he then calls the OR, usually on a speaker telephone, to inform the surgeon as to the radiologist's interpretation of the film. Any question as to the level of surgery is resolved at that time. If Respondent is not at the intended level of the spine, he makes the appropriate adjustment in the surgical procedure and completes the surgery at the correct level. The First Surgery S.D. first presented to Respondent in November 1989 with complaints and symptoms of intractable back and left leg pain. She had been seen previously by other physicians but had not experienced any relief. At the time she presented to Respondent, S.D. was 5 feet 5 inches tall and obese (at 175 pounds). Unbeknownst to Respondent at the time, the patient also had an anatomical anomaly of six lumbar vertebrae instead of the more common five. As a result of the patient's anatomical anomaly, physicians could easily be misled, fooled, or misunderstood in reporting the level of spine being evaluated or treated. Depending upon awareness of the patient's specific anomaly and terminology used, the same location on the spine could be referred to as L4-L5, as L5-S1, or as L5-L6. Usually, neurosurgeons can predict the location of nerve root pathology fairly accurately based solely on a patient's complaints, objective examination, and symptoms. Specific nerves innervate specific areas of the body, and a deficit in one area of the body can reasonably lead a physician to suspect nerve root pathology at a particular level of the spine. Because Respondent was unable to determine from initial review of the patient's prior MRI that she had a sixth vertebra, he expected to find nerve root pathology at the L5-S1 level of the spine based on S.D.'s complaints, objective examination, and symptoms. But on X-ray and re-review of the MRI with benefit of the radiologist’s report, Respondent noted the sixth vertebra. Following a complete examination of S.D., including review of a recent CT scan, her prior MRI study, and X-ray films, Respondent believed that S.D. had a "large disc protrusion" at the L5-L6 level of the spine and a "small disc bulge" at the L4- L5 level. The patient's extra lumbar vertebra helped explain the location of the patient's nerve root pathology in relation to her complaints, objective examination, and symptoms. Respondent recommended that S.D. undergo lumbar surgery to explore the disc spaces, remove extruded disc material, and free any entrapped nerves. He expected to have to remove disc material only at the L5-L6 level. His pre-operative diagnosis was: degenerative lumbar disc with lateral angle stenosis (narrowing) at L5-L6; and possible disc protrusion at the L4-L5 level on the left. Respondent performed surgery on S.D. on December 4, 1989. The operation consisted of: a left laminectomy, exploration and inspection of the L4-L5 disc; and a laminotomy, foraminotomy, and partial discectomy at L5-L6. To accomplish the surgery, Respondent dissected away the soft tissues above L4, L5, L6, and S1. He then followed his protocol by placing radio-opaque cotton underneath the ligament at the level he believed was L4-L5 for radiological confirmation. After "real time" radiological confirmation that he was at L4-L5, Respondent removed enough lamina at L4-L5 to inspect the disc and nerve root. He did not observe any entrapment of the nerve and did nothing further at L4-L5. He next proceeded to L5- L6, where he repeated the same procedure but noted entrapment at the posterior aspect of the nerve root. The majority of the pressure on the nerve came from the neural foramen, and this was removed with osteotomy. Some disc material also was removed to free the nerve root. While inspecting the disc space at L5-L6, Respondent observed that the disc space was so narrow that a spinal needle was the thickest instrument that the disc space would receive; a straight pituitary curet could not be placed into the disc space. Respondent recorded these observations in his surgical notes. Similarly, the radiologist's report noted "considerable narrowing of the interspace at the L5-L6 level." Respondent completed the operation by performing a foraminotomy (removal of bone surrounding the point of exit of the nerve from the vertebras of the spinal column). The operation in December 1989 was uneventful; S.D. did well post-operatively and was discharged from the hospital after a normal stay. The Second Surgery S.D. returned to Respondent in March 1993 because of recurrent severe back pain and left leg pain. Following appropriate diagnostic tests and examination of S.D., which revealed what was thought to be a herniated disc on the left side at L5-L6, Respondent planned to "re-do" a laminectomy and discectomy at L5-L6. By the time of the patient's second surgery on May 10, 1993, she had gained about 40 pounds (up to 215 pounds.) The planned surgery was made more difficult by S.D.'s weight gain, as well as by her previous surgery. Additional fatty tissue decreased the operative field of view, as well as the quality of the intra- operative X-ray. S.D.'s anatomical landmarks had been altered as a result of the December 1989 surgery, and there was considerable scaring in the area to be explored during surgery, which obscured the remaining landmarks. Without the presence of normal landmarks and with heavy scaring and weight gain, Respondent had fewer tools to locate the correct level, making the second surgery more difficult. One landmark still available to Respondent to aid in the second surgery was the very narrow interspace at the L5-L6 level. However, Respondent did not the read surgical notes from the first surgery carefully enough to recall the landmark; or, if he read them and recalled the landmark, he attached little significance to the notes and landmark, as compared with other factors influencing his decisions during surgery. One of the reasons Respondent and his expert gave for not attaching more significance to the December 1989 findings as to the remarkably narrow L5-L6 interspace was that a patient's position on the Wilson laminectomy holder and the operation of the holder can alter the apparent width of lumbar interspaces. The holder is a special, adjustable operating table that can be made to "bridge up" in a continuous arc to force the patient (lying on the stomach) to stretch over the "bridge" and make the vertebral interspaces widen for easier access during surgery. While theoretically position on and operation of the holder can affect the width of the interspaces, in practice the surgeon always positions the patient and operates the holder so as to maximize the interspaces. One would not expect the positioning and operation of the holder in two operations at the same level of the lumbar spine to significantly widen an interspace as narrow as the one described in the December 1989 surgical notes. But it might reduce the relative importance of the landmark, compared to other information available to the surgeon, such as radiological confirmation and visual examination of the site. Through answers to his attorney's questions on direct, Respondent also initially attempted to take the position that the patient's weight gain between the two surgeries was enough to warrant ignoring the December 1989 surgical note as to the narrow L5-L6 interspace. But the Department's expert opined that the added weight would not make a significant difference, and on cross- examination Respondent admitted that he actually did not have the patient's weight gain in mind as a reason to gloss over the December 1989 surgical note as to the narrow L5-L6 interspace. Indeed, consistent with Respondent's admission on cross- examination, both Respondent and his expert, Dr. Maniscalco, opined that, if anything, the added weight probably would tend to reduce the maximum flexion obtainable through use of the Wilson laminectomy holder and make the interspaces at the surgical site appear narrower, not wider. Nonetheless, depending on its distribution on the patient, weight gain could possibly alter the apparent width of the interspace during surgery on a Wilson laminectomy holder, and this could also reduce the relative importance of the landmark, compared to other information available to the surgeon, such as radiological confirmation and visual examination of the site. While conceding that he really did not pay much attention to the December 1989 findings as to the remarkable narrowing of the L5-L6 interspace, Respondent also attempted to take the position in testimony that the L4-L5 interspace was fairly narrow itself, as compared for example to the L3-4 interspace. But the L5-L6 interspace clearly was much narrower than L4-L5 and could have been used as a landmark. See Findings 25 and 29, infra. Nonetheless, as previously mentioned, the relatively narrow interspace at L-5-L6 was just one factor to be considered, along with radiological confirmation and visual examination. As Respondent wrote in his notes on May 10, 1993, he thought: "The previous laminectomy site was easily identified and confirmed with a lateral X-ray." The Department's expert took the use of the singular "previous laminectomy site" as evidence that Respondent was unaware of the previous laminectomy at L4-L5. But Respondent testified convincingly that he had reviewed the patient's medical records and was fully aware of both previous laminectomies--at both L5-L6 and L4-L5. (Respondent also testified that his use of the singular, "previous laminectomy site" was intended to mean the general site of both previous laminectomies. But it was the L5-L6 laminectomy site that he thought was "confirmed with a lateral X-ray," so it seems that the language used probably actually referred to the site of the intended surgery. In that respect, the wording of Respondent's surgical notes was ambiguous, if not erroneous.) As usual, an X-ray technician took the lateral X-ray, developed the film, and showed it to Respondent in the OR. Respondent testified that he then had the X-ray technician take the film to the radiology department, along with the pre-operative MRI, and that a radiologist on duty confirmed for him that he was at the "correct level" before he proceeded with the surgery. When Respondent proceeded with the surgery, he widened the laminectomy site and found a disc fragment (which he presumed to be recurrent) underneath and entrapping the nerve root. The nerve root was retracted medially, and the disc space was entered. A large fragment of disc was found in the subligamentous position. Respondent removed the large fragment; then more disc material was removed from the interspace, freeing the nerve. Respondent then performed a foraminotomy and completed the surgery. The pathology found during the second surgery was not inconsistent with the general kind of pathology Respondent expected to find at the L5-L6 level. Relying on visual examination and radiological confirmation, Respondent believed that he was operating at L5-L6. He did not notice, or attached no significance to, the ease of access to the disc space in May 1993, as compared to the narrow interspace encountered at L5-L6 in the first surgery. The Third Surgery After normal recuperation in the hospital, the patient noticed apparent improvement and began regular walking. However, approximately six to eight weeks after surgery, back and leg pain recurred, and the patient returned to Respondent for consultation. Respondent ordered another MRI and scheduled the patient for an appointment in August 1993. When Respondent reviewed the post- operative MRI with the patient, he realized that he had operated at L4-L5 instead of L5-L6. He asked the patient to go to the hospital and get the intra-operative X-ray to help him understand what had happened. It was his belief that the X-ray would show that he had radiological confirmation. With the patient's help, Respondent obtained the X-ray the same day. See Finding 35, infra. Instead of showing radiological confirmation, the X-ray's labeling showed someone's interpretation that the radio-opaque marker on the X-ray was at L4- L5. (There was no evidence as to who labeled the interpretation. Id.) When Respondent saw the writing on the X-ray, he immediately conceded that he had operated at the wrong level and began the process of scheduling a third surgery (the second at L5-L6). Respondent performed the patient's third surgery free-of- charge on September 17, 1993. He had three X-rays taken during the third surgery. The first one apparently was taken before any incision was made. The second was made to confirm that the Respondent was at L5-L6 this time. Instead, the X-ray showed that he was at L6-S1. Respondent tried again, and a third X-ray confirmed L5-L6. Respondent continued with the operation as planned. Findings during the third surgery supported the reasonableness of using the narrow L5-L6 interspace as a landmark during the second surgery. Once again, Respondent found cause to note significant narrowing at L5-L6, stating: "A needle was placed exactly in the interspace, which was small and tight." (The patient weighed 217 pounds at the time of the third surgery--two pounds more than for the second surgery.) The third surgery was otherwise uneventful and apparently successful. The patient discharged after a short stay. The Questionable X-ray Confirmation Although it appears in hindsight that Respondent should have attached more significance to the notes from the first surgery as to the remarkably narrow disc space at L5-L6, even the Department's expert conceded that Respondent should not be found to have practiced below the generally accepted standard of care if he received "real time" radiological confirmation before proceeding with the second surgery. (The Department's expert assumed from the medical records that there was no radiological confirmation. See Finding 33, infra.) Excepting the possibility of an obvious and clear error by the radiologist, the generally accepted standard of care entitles a surgeon to rely on a radiologist's "real time" reading of an intra-operative X-ray. The radiologist's specialty is interpreting X-rays, and the viewing equipment and lighting in the radiology department is far superior to what is available to the surgeon in OR. The question becomes the truth of Respondent's claim of having had "real time" radiological confirmation in the context of the other evidence presented in the case. The radiologist normally would have conveyed the "real time" confirmation of the correct level to the surgeon over a speaker telephone in the OR. But no one else present at the time of the surgery testified. (The patient testified by deposition, but she was under general anesthesia during surgery and could not testify as to radiological confirmation.) Respondent could not remember the name of the radiologist he says confirmed the correct level, and he was unable to show through any other means who confirmed the correct level for Respondent. Meanwhile, the Department did not present any direct evidence to dispute Respondent's claim of "real time" radiological confirmation in the OR. But there was circumstantial evidence that raised questions as to the veracity of the claim. In a hospital radiology report on the intra-operative X- ray, a radiologist named Robert G. Isbell, M.D., stated: "Film was not available for interpretation in the radiology department. The film will be read upon its return." This report was dated May 17, 1993; it was not clear from the evidence whether the report was dictated on that date, released on that date, or both. This could indicate that the X-ray was not taken to the radiology department during the surgery on May 10, 1993, since standard procedure would be for the radiologist to dictate the report immediately after calling down to the OR to confirm the correct level for the surgeon. (The Department's expert assumed from this report that there was no radiological confirmation.) However, it also is possible that an unknown radiologist confirmed the correct level for Respondent and then failed to follow the normal procedure, and either he forgot to dictate the report, or the dictation got lost or for some other reason did not result in a transcribed report to go in the patient's file "jacket" in the radiology department. If there was radiological confirmation in the OR, the radiologist apparently did not label the film and have it sent back to the OR, as usual, because the X-ray apparently was not labeled until later. See Findings 35-36, infra. When the patient went to St. Joseph’s Hospital in August 1993 at the Respondent's request to ask for her X-ray, she was told that a doctor had just asked for it to be sent over to the hospital (apparently from where it ordinarily would have been kept.) S.D. was surprised and somewhat suspicious that the hospital was familiar with her X-ray by name and that it coincidentally had just been requested by a doctor. There was no evidence as to the identity of the doctor who requested the X-ray. S.D. insisted on receiving her X-ray immediately and waited until it was returned to her. When she got it, there appeared to be fresh "grease pen" writing on it. As previously mentioned, the grease pen writing labeled the X-ray and clearly indicated someone's interpretation that the radio-opaque marker on the X-ray was at L4-L5. Respondent has maintained that he had never seen the grease pen writing before the X-ray was brought to him by the patient in August 1993. This is consistent with the patient's testimony that the grease pen writing appeared to her to be fresh, and it seems clear from the evidence that the writing was placed on the X-ray shortly before S.D. retrieved it, contrary to normal procedures. This evidence also makes it possible that the X-ray never was sent to the radiology department during surgery, again contrary to normal procedures. It is not clear from the evidence where the X-ray had been between the time of the May 1993 surgery and the time S.D. picked it up with the fresh grease pen writing. There was no evidence as to who put the markings on the X-ray, or at whose request. There was no evidence of any hospital radiology report recording the mysterious August 1993 "reading" of the X-ray as reflected by the new grease pen writing. It also is not clear from the evidence exactly what was written on the X-ray in August 1993 when S.D. retrieved the film from the hospital, or what that particular X-ray looked like. While S.D. retained the X-ray until some time during her subsequent civil action against Respondent and the hospital, she then gave it to the hospital's risk manager, who was supposed to make her a copy. When S.D. went to retrieve the X-ray for her deposition in this administrative proceeding, she found several X-rays apparently given to her by her lawyer after disposition of the civil action, including one labeled "original" and bearing writing in addition to, or other than, the writing S.D. recalled from August 1993. The writing on the X-ray used in this administrative proceeding may have been placed on the "original" X- ray by experts in the civil action. The other X-rays in S.D.'s possession were not produced for use in this administrative proceeding, and it is not clear which, if any of them, is the X-ray labeled as when S.D. retrieved it in August 1993. The X-ray used in this administrative was of poor quality and actually did not show what was below the marked interspace. (As the Respondent described the lower part of the film, "It looks like a snowstorm.") As a result, it actually would not have been possible to confirm the correct level using that particular X-ray. But X-rays can deteriorate over time, and there is no way of knowing if the intra-operative X-ray as it existed on May 10, 1993, or when seen again by Respondent in August 1993, also was of such poor quality as to be virtually useless. If an unknown radiologist in fact called the OR to confirm the correct level for Respondent, it also is possible that there was a miscommunication. Respondent in his testimony made a point of explaining that he only used the terminology "correct level" in talking to the radiologist "to avoid confusion." But if Respondent just asked if he was at the "correct" level, and the radiologist just said, "yes, you're at the correct level," the radiologist actually either would be simply assuming that the level marked on the X-ray was the "correct" level, or he would be saying that pathology visible on the MRI matched the marked location on the X-ray. If the latter, the radiologist may have thought there was enough pathology showing on the MRI matching the marked interspace in this case (actually L4-L5) to justify surgery there. Taking all of this evidence into consideration, it cannot be found that the Department proved by clear and convincing evidence that Respondent did not receive "real time" radiological confirmation on which he was entitled to rely in proceeding with the second surgery. Without such proof, it cannot be found that Respondent practiced below the generally accepted standard of care, notwithstanding the little attention he paid to his December 1993 surgical notes as to the remarkably narrow interspace at L5-L6.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order dismissing the Administrative Complaint in this case. DONE AND ENTERED this 27th day of September, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 27th day of September, 1999. COPIES FURNISHED: Britt Thomas, Esquire Agency for Health Care Administration 1580 Waldo Palmer Lane Tallahassee, Florida 32308 Jon M. Pellett, Esquire Grover C. Freeman, Esquire Freeman, Hunter & Malloy 201 East Kennedy Boulevard, Suite 1950 Tampa, Florida 33602 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast, Bin A02 Tallahassee, Florida 32399-1703 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast, Bin A02 Tallahassee, Florida 32399-1703 Tayna Williams, Executive Director Board of Medicine Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent violated Subsections 460.413(1)(ff) and 456.072(1)(u), and Section 460.412, Florida Statutes (2002),1 and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Dr. Hether was a licensed chiropractic physician within the State of Florida, having been issued license number CH 2601 on or about April 16, 1977. Other than the instant Administrative Complaint, Dr. Hether has had no disciplinary action taken against his license. In April 2003, Dr. Hether had two chiropractic offices, one in Port Orange, Florida, and one in Deland, Florida. On or about April 8, 2003, C.B., a 29-year-old female, presented herself to Dr. Hether's office in Port Orange, Florida, in order to receive chiropractic treatment for injuries she sustained in an automobile accident. C.B. began receiving treatments in the Port Orange Office, but switched her appointments to the Deland office on or about May 8, 2003. The remainder of her treatments was given at the Deland office. Her treatments included chiropractic adjustments and massages. The chiropractic adjustments were performed by Dr. Hether and other physicians who worked for Dr. Hether; however, the majority of the chiropractic adjustments were performed by Dr. Hether. Until C.B.'s visit on June 11, 2003, all the massages had been performed by licensed massage therapists who worked for Dr. Hether. From on or about April 8, 2003, up to June 11, 2003, C.B. received various chiropractic treatments at Dr. Hether's offices without incident. On June 11, 2003, C.B. presented herself to Dr. Hether's office to receive her usual chiropractic treatment, including a massage. Dr. Hether, his son, and another male were in the office. Dr. Hether offered to perform the massage on C.B. because the regular massage therapist was not present, and C.B. accepted. C.B. went into the massage room, undressed to her underwear, and lay face down on the table with a sheet draped over her. Dr. Hether came into the massage room and began to massage C.B. Dr. Hether and C.B. were the only persons in the room during the massage. While C.B. was lying face down, Dr. Hether slipped his hands under C.B.'s underwear on the left side of her buttocks and then placed his hand under her underwear on the right side of her buttocks. At Dr. Hether's instruction, C.B. turned over onto her back. Dr. Hether placed his hands under C.B.'s breast area and rubbed upward towards her cleavage. Dr. Hether then slid his hand down C.B.'s body toward her vaginal area, grabbed a part of C.B.'s vaginal area, and began to make grunting noises as if he were getting sexual pleasure from the touching. While Dr. Hether was touching C.B.'s vaginal area, Chase Hether, Dr. Hether's son and office manager, knocked on the door to the massage room. Dr. Hether briefly stopped the massage to speak to his son. The door was partially open, but Chase Hether could not see inside the massage room. After speaking to his son, Dr. Hether closed the door and walked back to the massage table, where he again placed his hand in C.B.'s vaginal area and slid his fingers back and forth. Dr. Hether then shoved his hand further down C.B.'s panties and repeatedly thumped C.B.'s vaginal area. While Dr. Hether was thumping her vaginal area with one hand, he grabbed C.B.'s ankle with the other hand, while using the full pressure of his body weight on her body. Dr. Hether resumed making the grunting sounds and continued to make the sounds for a while. C.B. had approximately 27 massages at Dr. Hether's offices from the time she began treatment in April 2003 until June 11, 2003. The massage therapists who gave her those massages did not touch C.B.'s pubic area or touch the areas around C.B. breasts. After the massage, C.B. got dressed and went into another room to receive a chiropractic adjustment from Dr. Hether. Dr. Hether gave the chiropractic adjustment without any further inappropriate touching. After he concluded the chiropractic treatment, he asked C.B. personal questions about her living arrangements and occupation. C.B. went into the reception area of the office to leave the building. She saw Chase Hether and another man in the reception area. C.B. did not tell either man what had happened nor did she tell them that she would not be back to Dr. Hether's office for treatment. While Dr. Hether was touching C.B. inappropriately, she did not cry out, tell him to stop, or attempt to leave. When Chase Hether came to the door of the massage room, C.B. did not tell him what Dr. Hether was doing. C.B. did not try to stop the massage, leave Dr. Hether's offices, or tell others at Dr. Hether's office about the inappropriate touching because she was afraid of Dr. Hether and did not know what else Dr. Hether might do to her. She felt like she was a "visitor in her own body" and had no control over what was being done to her. She did not report the incident to the police department because she felt that the police were ineffective. C.B. did not go back to Dr. Hether's offices for treatment after the incident on June 11, 2003. She sought treatment from another chiropractic physician, Dr. Kimberly Watson, whom C.B. saw on June 23, 2003. C.B. told Dr. Watson what had happened to her at Dr. Hether's office. Dr. Watson advised C.B. that she could file a complaint with the Department of Health. C.B. did send a complaint to the Department of Health in June 2003, but she sent it to the wrong address. She got the correct address from Dr. Watson and filed a complaint with the Department of Health in September 2003. A year passed, and she contacted the Department of Health, wanting to know the status of her complaint. C.B. was told to file another complaint, which she did. Dr. Hether's wife, Kathe Hether, testified that she was at Dr. Hether's office the day of the incident and that as C.B. was leaving the office she spoke to C.B. for several minutes concerning her publishing business and that C.B. told her that she was going to another chiropractor that was nearer to her home. Mrs. Hether's testimony is not credible. Her husband of 36 years did not advise her until two months before the final hearing, that an administrative complaint had been filed against him. It is inconceivable that two and one-half years after their conversation, Ms. Hether vividly remembers talking to C.B. when there had been no reason to remember the conversation. Additionally, Ms. Hether's explanation for C.B.'s failure to return to Dr. Hether for treatment because C.B. wanted to go to a chiropractor closer to her home is also not credible. C.B. chose to seek treatment from Dr. Watson, whose office was about the same distance from C.B.'s home as Dr. Hether's office. C.B. also told Dr. Watson about the incident with Dr. Hether, explaining the reason that she discontinued treatment with Dr. Hether. C.B. has not brought a civil action against Dr. Hether for the incident on June 11, 2003. She filed the complaint with the Department so that Dr. Hether would not touch other patients inappropriately.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that James Hether, D.C., violated Subsection 460.413(1)(ff), Florida Statutes, by violating Subsection 456.072(1)(u) and Section 460.412, Florida Statutes; issuing a reprimand; imposing a $2,500 administrative fine; requiring a psychological evaluation by the professional resource network; and placing him on probation for two years, the terms of which would include a practice restriction prohibiting him from treating female patients without another certified health care professional in the room. DONE AND ENTERED this 28th day of July, 2006, 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 28th day of July, 2006.
