The Issue Whether Disciplinary action should be taken against Respondent's license to practice medicine, number ME 0028355, issued by the State of Florida, based on the alleged violations of Section 458.331(1), Florida Statutes, as contained in the Administrative Complaint filed by the Petitioner.
Findings Of Fact At all times material to this complaint, Respondent was a licensed physician having been issued license number ME 0028355 by the State of Florida. This case represents Respondent's second disciplinary action. By a Final Order dated February 24, 1987, the Board of Medicine, in the case of Department of Professional Regulation vs. Robert Gonzalez, Jr., M.D., DOAH Case No. 85-1692, DPR Case No. 0033796, reprimanded Respondent, suspended Respondent's license for a minimum period of one year, and ordered a five year probationary period, and a $14,000 fine. The Final Order took effect upon filing and pertains to similar offenses at issue in the present case. (Adopts Petitioner's Proposed Finding of Fact (PFOF) 1) The present case arose from a review of hospital records and Respondent's patient records for seventeen patients who were hospitalized by Respondent at Pembroke Pines General Hospitals in Pembroke Pines, Florida in 1982 and 1983. However, none of the incidents giving rise to the complaint in the instant case occurred subsequent to the Final Order referenced in Finding of Fact 1 and all occurred during or shortly after the same timeframe as covered in the earlier offenses. (Adopts and expands Petitioner's PFOF 2). On August 4, 1982, Respondent admitted patient C.M. to Pembroke Pines General Hospital, who was assigned medical records number 6893 by Pembroke Pines General Hospital. The admitting diagnosis was acute respiratory tract infection, acute flu syndrome, acute laryngo/pharyngitis and possible pneumonitis. The patient was hospitalized for a period of two days. During the hospitalization of patient C.M., Respondent ordered the following tests which were performed on patient C.M.: two chest x-rays, "mono" screen, throat culture, blood serum levels (special 12), electrolytes, urinalysis, complete blood count (C.R.C.) and Platelet counts. Respondent discharged C.M. from Pembroke Pines General Hospital with the following diagnoses on August 7; 1982: acute flu syndrome, acute respiratory tract infection, and acute pharyngitis due to staphylococcus aureus. (Adopts Petitioner's PFOF 3) Pharyngitis is an inflammatory reaction of the throat. Although Respondent diagnosed patient C.M. as suffering from acute pharyngitis due to staphylococcus aureus, there was inadequate laboratory data to justify this diagnosis. The diagnosis should have been predicated upon the results of a sputum (secretions coughed out of the lungs) culture and sensitivity test. However, the results of the culture and sensitivity test were negative for the throat. Therefore, this diagnosis was incorrect. (Adopts Petitioner's PFOF 4). Pneumonitis is an infection of the lungs. The standards of the medical profession require that it be based on positive x-ray findings. In the case of patient C.M., there was no justification for Respondent's diagnosis of pneumonitis because both of the chest x-rays taken pursuant to Respondent's order were normal. (Adopts Petitioner's PFOF 5) Although Respondent diagnosed patient C.M. as suffering from acute flu syndrome, there was no justification for this diagnosis either. In fact, there was no justification for the admission of the patient to Pembroke Pines General Hospital. It is contra-indicated to hospitalize a sixteen-year-old male suffering from an upper respiratory infection because of the danger of developing a nasocomal infection, which is an infection that is produced as a result of exposure to bacteria in the hospital. By hospitalizing C.M. unnecessarily, Respondent placed patient C.M. at undue risk. (Adopts Petitioner's PFOF 6) In the year 1983, Respondent admitted patient F.L. to Pembroke Pines General Hospital on three occasions. The patient was assigned medical records number 4141 by Pembroke Pines General Hospital. The admission date for the hospitalizations were February 20, 1983, July 8; 1983, and August 31, 1983. There were no problems with the July 8, 1983, hospitalization of patient F.L. (With the elimination of subordinate and unnecessary material, this FOF adopts Petitioner's PFOF 7). On February 20, 1983, Respondent admitted patient F.L. to Pembroke Pines General Hospital with an admission diagnosis of cephalgia and uncontrolled hypertension. The patient was hospitalized for a period of three days. During this three-day period, the following tests were performed on patient F.L., pursuant to Respondent's orders: an intraveneous pyelogram (IVP) and voiding cystogram, chest x-ray, three "E.K.G.s", an SMA-18 (blood serum levels for eighteen different substances), a CRC, an echocardiogram, a 24-hour urinalysis for total protein, serum electrophoresis, a twenty-four hour urinalysis for catecholamine and methanephrine, a CT scan of the brain, a sinus series x-ray and cervical spine x-ray, an upper GI series, small bowel study, a cardiac isoenzyme profile and a plasma renin study. (Adopts Petitioner's PFOF 8) A voiding cystogram is a test used to check on the condition of the prostate. There was no indication in the records of patient F.L. of any prostate problem or complaint. Hence, there was no justification for the voiding cystogram which Respondent ordered for patient F.L. The upper G.I. series with small bowel follow-through, would be indicated if there is suspected small bowel obstruction or small bowel involvement. In Respondent's records for patient F.L., and the records pertaining to the hospitalization of F.L. at Pembroke Pines General Hospitals there is no indication that patient F.L. complained of or suffered from gastro-intestinal complaints. Therefore, the upper G.I. series with small bowel follow-through Respondent ordered was not justified. Additionally, the patient was admitted with cephalgia (headaches), and sinus x-rays and cervical spine x-rays were ordered. Sinus x-rays and/or cervical spine x-rays would be indicated where there was a history or indication of involvement of the sinus or cervical spine. Respondent's records for patient F.L. do not document any indication of involvement of the cervical spine and provide no history of sinus trouble. Accordingly, the cervical spine and sinus x-rays ordered by Respondent were neither indicated nor justified for patient F.L. C.P.K. enzymes are enzymes released into the bloodstream with damage of certain tissues in the body. Respondent ordered a cardiac isoenzyme profile to determine whether there was evidence of elevated C.P.K. enzymes and, therefore evidence of acute myocardial damage in patient F.L. However, patient F.L. displayed no symptoms which would justify performing this test. (With minor modifications to clarify the - finding and to conform to the record, FOF 9-11 adopt Petitioner's PFOF 9) On February 23, 1983, Respondent discharged patient F.L. with the following diagnoses: Cephalgia due to the presence of uncontrolled hypertension-diastolic, hyperuricemia, essential hypertension, neck pain secondary to cervical degenerative arthritis and chronic sinusitus condition, left maxilla. There was no justification in the records for patient F.L. which would establish uncontrolled hypertension, as a diagnosis, although Respondent's office records for patient F.L. do document the presence of hypertension in this patient and that numerous therapies were utilized unsuccessfully to control that hypertension. (With minor modifications to clarify the finding and to conform to the record, FOF 12 adopts Petitioner's PFOF 10) On August 31, 193, Respondent admitted patient F.L. for what Respondent described as a "mass of the left hemi- thorax" and labile hypertension. The mass was, in fact, a keloid or excess scar tissue which measured 2 centimeters at its greatest dimension. The records for patient F.L. provided a history of two previous resections of the same keloid. It constituted excessive, expensive and unnecessary hospitalization for Respondent to admit patient F.L. for removal of such a keloid, when that keloid could have been removed in the Respondent's office under local anesthesia. Also as a result of Respondent's decision to unnecessarily hospitalize patient F.L. for removal of a keloid, unnecessary pre-operative testing also was performed. This testing included a chest x-ray, an SKG, a complete blood count, an SMA 18, a urinalysis, and prothrombin dime or clotting tests. Respondent knew when he hospitalized patient F.L. for the surgical procedure of removal of a keloid that these pre-operative tests would be routinely performed. This constitutes inappropriate treatment. Since the history clearly indicated that the keloid, if removed, almost certainly would have reoccurred unless a plastic surgeon provided follow-up treatment to prevent the reformation of the keloid, its excision was unjustified. Accordingly, there was no justification for the admission of patient F.L. to Pembroke Pines General Hospital in August 1983. (Accepts, with modifications to reflect the record as a whole, Petitioner's PFOF 11-12). On September 2, 1983, Respondent discharged patient F.L. with the following diagnoses: keloid anterior chest wall, labile hypertension and anxiety reaction. Labile hypertension is hypertension that fluctuates erratically. This diagnosis was not supported by the hospital record for F.L. All blood pressure readings for the record for F.L., were constantly normal. (Adopts Petitioner's PFOF 13) On April 5, 1983, Respondent admitted patient J.G. to Pembroke Pines General Hospital for acute low back syndrome and weakness of the right extremities. Patient J.G. was assigned medical records number 2693 by Pembroke Pines General Hospital. Respondent hospitalized patient J.G. for a period of three days. During this hospitalization of patient J.G., Respondent provided no significant therapy which would justify hospitalization. Respondent's treatment of Patient J.G. during hospitalization included orders for Robaxin, a muscle relaxant, Riopan Plus, an antacid, Paraon forte, a muscle relaxant, and Ducolax suppositories and Peri-colase capsules for constipation. Additionally, the patient was treated with traction for the three-day period. The patient was given pelvic traction of twenty pounds- with alternating periods of two hours with traction and two hours without traction. In order to be effective or beneficial, the traction should have been given over a much longer period of time. Finally, Respondent treated patient J.G. with K-pads or heat pads around the clock. (Adopts Petitioner's PFOF 14). On April 6; 1983, patient J.G. was seen by an orthopedic consultant, pursuant to Respondent's request. The consultant's impression of the patient's condition was of cervical spondylosis. The consultant's recommended plan of treatment included bed rest and oral anti-inflammatories. (Adopts Petitioner's PFOF 15). Respondent's entire work-up and evaluation of patient J.G.; including the orthopedic consultation, could have been performed as an outpatient. There was no justification for the admission of patient J.G. to Pembroke Pines General Hospital. (Adopts Petitioner's PFOF 16). On October 10, 1982, Respondent admitted patient E.R. to Pembroke Pines General Hospital for acute cephalgia and photophobia. Patient E.R. was assigned medical records number 4910 by Pembroke Pines General Hospital. On admission, Respondent recorded a long-standing history of the patient suffering from headaches and chronic migraine syndrome. There was no justification for Respondent to admit patient E.B. for headaches, or for evaluation of these headaches. Respondent's migraine headaches might reasonably have been addressed by an initial referral to a neurologist on an outpatient basis. This was not done. (With elimination of subordinate and unnecessary material and as modified to more closely conform to the record as a whole, this FOF covers Petitioner's PFOF 17.) During the hospitalization of E.R., Respondent ordered a number of tests including two electrocardiograms, a CT scan of the brain, chest x-ray; sinus x-ray; mastoids x-rays; x-rays of the sella turcica and cervical spines, a bilateral mammogram, a CT scan of pituitary gland, a tomogram of the sella turcica, a platelet count, serum protein electrophoresis, CEA-EIA Enzyme Immunoassay, an SMA 12, Vitamin B12 and Folate serum levels, and progesterone levels. (Adopts Petitioner's PFOF 18). The testing ordered by Respondent for E.R. was excessive. For example, Respondent ordered a CT scan of the brain which adequately views the sinuses and the sella turcica. Therefore the further x-rays of the sinuses, mastoids and sella turcica and a tomagram of the sella turcica, were unnecessary and excessive. No other indicators, i.e. vision disturbances, independently justified Respondent's ordering the tomagrams. A C.E.A.-E.I.A. Enzyme Immunoassay was ordered, despite the fact that it was not indicated by either the patient history or the recorded physical examination results. A C.E.A.- E.I.A. Enzyme Immunoassay is a test for cancer of the stomach. (With elimination of cumulative and subordinate material, adopts Petitioner's PFOF 19). On May 8, 1983, Respondent admitted patient E.P. to Pembroke Pines General Hospital for evaluation and treatment of a gastrointestinal disorder, weakness and shortness of breath. E.P. was assigned medical records number 4924. Respondent ordered the following testing which was performed on patient E.P.: two CBCs, SMA-18, two urinalyses, CT scan of kidneys, barium enema, a GI series and small bowel follow-through, an intraveneous pyelogram a voiding cytourethrogram a platelet count, serum protein electrophoresis, a urine culture and a stool culture. There was no indication for Respondent to order the upper G.I. series and small bowel follow-through for patient E.P. The records demonstrate insufficient justification for the admission of patient E.P. to Pembroke Pines General Hospital on May 8, 1983; the final discharge diagnoses show hospitalization was unnecessary. On May 12, 1983, Respondent discharged patient E.P. from Pembroke Pines General Hospital with the following diagnosis: gastrointestinal disorder due to diverticulosis of the colon gastritis, and anxiety state reaction. Of these diagnoses, only the final diagnosis is possibly correct. Although an air contrast barium enema showed a few tiny scattered diverticuli within the distribution of the left colon, there was no support for Respondent's assertion that the diverticuli were the cause of a gastrointestinal disorder. The diagnosis of gastritis refers to an irritation of the stomach. This diagnosis is not supported either by the results of the upper G.I. series which were normal nor by x-rays of the stomach, which were also normal. (With modifications to more accurately reflect the record as a whole, this FOF accepts Petitioner's PFOF 21-23). On April 20, 1983, Respondent admitted O.A. to Pembroke Pines General Hospital. O.A. was assigned medical records number 5800. Petitioner established no violations by Respondent with regard to this patient. (Covers Petitioner's PFOF 24). On September 20; 1982, Respondent admitted patient R.R. to Pembroke Pines General Hospital. Patient R.R. was assigned medical records number 5940. Petitioner established no violations by Respondent with regard to this patient. (Covers Petitioner's PFOF 25). On April 12, 1983, Respondent admitted to Pembroke Pines General Hospital a patient who was assigned medical records number 9235. The patient was admitted for acute abdominal pain on the right lower side. The patient was suffering from a hematoma, a collection of blood in the tissue. Most probably the patient had developed a hematoma of the rectus muscle as a result of coughing, because the patient's history revealed a severe upper respiratory infection accompanied by a cough. A surgical consultation prior to hospital admission would have revealed this condition and rendered hospital admission unnecessary; because the standards of the medical profession indicate that the hematoma should have been treated conservatively (i.e. no treatment was indicated). No testing should have been necessary, if a consultation had been sought. However, Respondent hospitalized the patient, ordered a chest x- ray, a pelvic sonogram and a barium enema. Neither the barium enema nor the pelvic sonogram would have been indicated if the patient had been seen by a consultant prior to ordering the tests. The patient was ultimately discharged on April 14, 1983 therefore, the hospitalization was unnecessary. (Adopts, with clarifying modification, Petitioner's PFOF 26-27). On March 29, 1983, Respondent admitted patient R.S. to Pembroke Pines General Hospital. Patient R.S. was assigned medical records number 9479 at Pembroke Pines General Hospital. No evidence was presented by Petitioner as to the propriety or necessity for the admission or the testing performed during the hospitalization of the discharge diagnoses. (With elimination of unnecessary material, this FOF adopts Petitioner's PFOF 28). On October 10, 1982, Respondent admitted patient K.G. to Pembroke Pines General Hospital. The patient was assigned medical records number 9540 by Pembroke Pines General Hospital. This twenty-three year old female was admitted with diagnoses of gastro-intestinal disorder and menstrual period disorder. The patient remained in the hospital for a period of three days. During the hospitalization, Respondent ordered the following tests: chest x-rays of sella turcica, a barium enema, pelvic sonogram; an EKG, an upper G.I. series with small bowel follow-through- a urinalysis, a platelet count, serum glucose levels (four); SMA 12, urine culture and colony count, progesterone levels, S Follicle- stimulating hormone levels and total estrogen levels. The x-rays of the sella turcica would be indicated where a pituitary tumor is suspected, but there was no indication that a pituitary disorder was suspected other than a vague reference to a menstrual disorder (which was never described in the records for patient K.G.). Therefore, this test was unnecessary. Although a barium enema was ordered, there was no description of pain or any disorder of the bowel and no indication of bowel changes which would indicate any disease of the colon. Therefore, the barium enema was not justified. Although the records reflect at least vague indications for ordering the upper GI series, the small bowel follow-through was not justified. Additionally, one isolated estrogen level was ordered. This was inappropriate because the test results would only be meaningful if a series of estrogen levels were obtained to determine the response curve of the ovaries. Therefore, "inappropriate" in this case means "unnecessary." The hospital admission of patient K.G. also was not appropriate. The entire evaluation could have been carried out by a gynecologist on an outpatient basis. No initial, pre-hospitalization referral to a gynecologist was reflected in Respondent's records. The patient was discharged on October 13, 1982, with the following diagnoses: abnormal menstrual periods due to left ovary cyst and abnormal pain due to mild gastritis associated with mild anxiety stage reaction. On his discharge summary for patient K.G., Respondent noted "all this information was given to the patient and was advised the patient to be seen by gynecologist for further result." Respondent's records further corroborated that the hospitalization was unjustified and unnecessary. (Covers Petitioner's PFOF 29-31) On August 4, 1982, Respondent admitted patient L.M. to Pembroke Pines General Hospital for treatment of "acute phlebitis". The patient was assigned medical records number 6965 by Pembroke Pines General Hospital. The patient was hospitalized for a period of thirteen days. Phlebitis is an inflammatory reaction of the vein(s). It is very important that the diagnosis be correct; because, with phlebitis, emboli or clots can break off and travel through the blood to the lungs. It is diagnosed clinically by history and by physical examination. On physical examination, the symptoms of phlebitis include the presence of swelling in the involved leg and the positive "Homan's sign." "Homan's sign" is the term used to describe the pain present from an inflamed deep vein, which pain is experienced when the leg is extended straight out and the foot is dorsiflexed or pushed back towards the leg placing stress on the calf muscle. Radiographically a venogram may be used to confirm or rule out the existence of phlebitis. A venogram is a test involving the injection of dye into the veins of the foot followed by an x-ray examination of those vessels. The records for patient L.M. do not contain adequate documentation of a physical examination of patient L.M. to establish the diagnosis of phlebitis. Thus, the patient may have had phlebitis, there were no adequate descriptions of the status of the right leg recorded in the patient records for L.M. Specifically, there is no mention of Homan's sign and there was no mention of any measurement of the patient's calves to determine whether there was swelling in the involved leg. Without a more thorough physical examination, Respondent should have performed a venogram to confirm the diagnosis. This was not done with patient L.M. (Adopts Petitioner's PFOF 32-34). While patient L.M. was hospitalized, Respondent treated the patient's unconfirmed phlebitis with Heparin (an anti-coagulent) intravenously. The patient remained on Heparin until August 15; 1982. On August 15, 1982, Respondent additionally ordered Coumadin, which is also an anti-coagulent, to be given to patient L.M. Respondent ordered Coumadin 5 mg. to be given by mouth at 6:00 p.m. (to be started on August 15, 1982)), and at 10:00 a.m. (to be started on August 16, 1982). Respondent's order provided that if the P.T. (prothrombin time) was twenty-five seconds, to hold the Coumadin. The normal prothrombin time is in the range of eleven to thirteen seconds. The dose of Coumadin given was inadequate to anti-coagulate the patient. (Adopts Petitioner's PFOF 35). On the day prior to discharge of L.M., Respondent wrote the following order: "If (patient) is below 20-tomorrow- and over 11.0. (patient) may be discharge(d)..." For the Coumadin to be effective (i.e. in order to have an adequate anti-coagulant effect from the Coumadin), the prothrombin time should have been above twenty prior to discharge. The prothrombin time on discharge was 12.9 seconds. (Adopts Petitioner's PFOF 36). From the hospital records for patient L.M. and the Doctor's orders for that patient there is adequate basis for the expert testimony that Respondent does not understand the therapeutic effect of Coumadin or its dosages. (Covers Petitioner's PFOF 37). On August 17, 1982; Respondent discharged patient L.M. from Pembroke Pines General Hospital with the following diagnoses: acute phlebitis of the right leg, anxiety stage reaction and migraine syndrome headaches. As discussed previously, the diagnosis of phlebitis cannot be substantiated from the records. Additionally, the records contain no documentation for the diagnosis of migraine syndrome headaches. (With the elimination of unnecessary material, this FOF adopts Petitioner's PFOF 38). On August 9, 1982, Respondent admitted patient M.A. to Pembroke Pines General Hospital for abdominal pain and a gastrointestinal disorder. This patient was assigned number 7448. The documentation of the history and physical examination for patient M.A. was significantly lacking. Patient M.A. was hospitalized for a period of three days. During that three-day period of hospitalization, the following tests were performed on M.A. pursuant to Respondent's orders: an E.K.G., a chest x-ray, an abdominal sonogram, a barium enema, a CRC, a urinalysis, a coagulation test and platelet count, fasting and non-fasting glucose levels (a total of six) SMA 12, a routine stool culture and a colonoscopy. All of the testing performed on patient M.A. could have been performed on an out-patient basis. There was no justification for admission of M.A. to Pembroke Pines General Hospital on August 9; 1982, or for the length of stay. Additionally, Respondent ordered the abdominal sonogram on patient M.A. without any indication for the test, which was unnecessary. This abdominal sonogram was used to view the liver, gallbladder and pancreas. However, there was no indication that M.A. experienced any problems with these organs. (Adopts Petitioner's PFOF 39-40). On admission, Respondent ordered that Diabenese 500 mg. (a glycogenic drug which will reduce the blood glucose levels and is normally used in the treatment of diabetes) be given by mouth daily. Additionally, Respondent ordered that the patient be given insulin on a sliding scale. Insulin is also normally used in the treatment of diabetes. However, diabetes was not listed as a diagnosis on discharge. The hospital chart provides no documentation for the use of Diabenese or the insulin. All glucose levels taken on this patient were within normal limits during the August 1982 hospitalization, and these eliminate any justification for the use of Diabenese or insulin for diabetes unrecorded. (As modified for clarity and to add the inference drawn by the undersigned from the evidence, this FOF adopts Petitioner's PFOF 41). On August 12; 1982, Respondent discharged patient M.A. from Pembroke Pines General Hospital with the following diagnoses: gastrointestinal disorder, abdominal pain secondary to several small diverticula of the left side of the colon, villous adenoma of the sigmoid colon, sinus bradycardia condition and essential hypertension. Several of Respondent's discharge diagnoses were either incorrect or not documented in the records for patient M.A. Sinus bradycardia is a very slow pulse rate. The pulses recorded for patient M.A. during hospitalization were 80, 68, 64, 68, 74 and 70 beats per minute, and were all within normal ranges. On one E.K.G. a notation was made that the pulse rate was slow. However, given the persistently normal pulse rates throughout the patient chart, the diagnosis of sinus bradycardia was incorrect. Additionally, Respondent's diagnosis of essential hypertension was incorrect. Essential hypertension means that type of hypertension for which there is no known cause. All of the blood pressure readings present in the hospital chart for M.A. were normal. Furthermore, the patient was taking no anti-hypertensive agents. Therefore, Respondent's diagnosis of essential hypertension in patient M.A. was also incorrect. Only one of Respondent's discharge diagnoses for patient M.A. was justified by use records for that patient, that of villous adenoma of sigmoid colon. This diagnosis was initially made by a consultant. (Adopts Petitioner's PFOF 42- 44). On March 22, 1983, Respondent admitted patient E.S. to Pembroke Pines General Hospital for abdominal pain with possible biliary disorders. The patient was assigned number 7917 and was hospitalized for a period of fourteen days. During that hospitalization, the following tests were performed on patient E.S., pursuant to Respondent's orders: an EKG, cervical spine x-rays; a voiding cystourethrogram and intravenous pyelogram, gallbladder sonogram; chest x-ray, an echocardiogram, a barium enema, an upper G.I. series, an oral cholestogram, small bowel series, sonogram of the thyroid glands an air contrast barium enema, a CRC, urinalysis, platelet count, glucose levels (a total of nine), SMA 12, a glucose tolerance test, an SMA 8, which included a serum glucose level, two routine stool cultures, a Thyroid profile, a two-hour post prandial blood sugar, 24 hour urine creatinine levels, insulin levels, by radioimmunoassay, and a Parathyroid hormone study. Much of the testing performed on E.S. during the hospitalization was excessive or unnecessary. Those tests that were indicated could have been performed on an out-patient basis. The insulin level by radioimmunoassay is indicated where secreting tumors of the pancreas are suspected. There was no indication in the records of patient E.S. that such a tumor was present. The intraveneous pyelogram is indicated where kidney disease is suspected. There was no indication in E.S.'s records that kidney disease was suspected or present. A sonogram of the thyroid is indicated where there is a palpable mass of the thyroid. In the records for patient E.S. there is no record of a palpable mass. In the records for patient E.S., the thyroid was described as mildly to moderately enlarged. However, there was no description of a mass or venous distention, and the carotid pulses are present. Therefore, it would appear unlikely that a mass was present. Accordingly, there was no indication for a sonogram of the thyroid gland. After performing a sonogram of the gall bladder (for which there was no indication) which yielded normal findings, Respondent ordered a cholecystogram. This latter test involves the oral consumption of a dye which is then excreted into the gallbladder so that the gallbladder can be viewed by x-ray. The test is used to determine if there are any filling defects in the gallbladder. In view of the normal gallbladder sonogram which had already been performed on patient E.S., it was excessive to additionally order the cholecystogram. There was no indication for performing a small bowel series on this patient. It was excessive to order and perform nine glucose levels where all of the levels obtained were within normal ranges. Respondent performed no real therapy on patient E.S. during the above-described hospitalization. The hospitalization was for diagnostic purposes. On April 5, 1983, Respondent discharged patient E.S. from Pembroke Pines General Hospital with the following diagnoses: diverticulosis of the sigmoid and descending colon, borderline diabetes mellitus, hyperuricemia, enlarged thyroid gland with hypofunctioning, diverticulum of the bladder and essential hypertension. The diagnosis "borderline diabetes mellitus," wads not justified by the patient's chart since all glucose levels found in the patient's chart were within normal ranges. (Adopts Petitioner's PFOF 45-47). On September 17, 1982, and on May 10, 1983, Respondent admitted patient A.W. to Pembroke Pines General Hospital. The patient was assigned medical records number 2966 by Pembroke Pines General Hospital. Petitioner established no violations with regard to this patient. (Covers Petitioner's PFOF 48). On October 6, 1982, Respondent admitted A.P. to Pembroke Pines General Hospital for a possible angina attack and a possible myocardial injury attack. Patient A.P. was assigned medical records number 8000 by Pembroke Pines General Hospital. Despite the fact that angina was suspected, Respondent failed to obtain a cardiac consultation during the October 1982 hospitalization of A.P. During the hospitalization of patient A.P., four chest x-rays and one CT Scan of the chest were performed pursuant to Respondent's orders. These tests revealed two areas of increased density in the left chest which were characterized as "masses." The recommendation made by the radiologists who reviewed the x-rays and the CT Scan was that further evaluation was necessary. Despite this recommendation, no further evaluation was performed in the hospital and no plan of follow-up or referral was included in the discharge summary prepared by Respondent. The importance of such documentation on "follow-up" is that it shows that the physician is aware of the problem and assures that the patient will be properly managed. From the records for A.P., it is impossible to determine whether or not Respondent planned proper management of the "masses" after discharge of the patient. (As modified to conform to the record as a whole- this FOF accepts Petitioner's PFOF 49-50). On October 23, 1982, Respondent discharged patient A.P. from Pembroke Pines General Hospital with several discharge diagnoses including the diagnosis of sliding hiatus[sic] hernia with gastroesophageal reflux. This diagnosis was not supported by the records for the patient. The hiatus is the opening in the diaphragm through which the esophagus passes into the stomach and should fit very snugly. In the case of a hiatal hernia, due to the increase of intra- abdominal pressure, a portion of the stomach slips through that opening and slides back and forth. Most commonly, if the patient is lying down, and particularly if the patient has had a sizable food intake immediately prior to lying down, the weight of the food will carry the stomach up into the abdomen. This is the disorder which Respondent diagnosed in patient A.P. The disorder is properly diagnosed by x-ray, specifically an upper G.I. series, Respondent did not order one. Respondent did order an upper abdominal sonogram and chest x- rays, neither of which would or did verify the existence of a sliding hiatal hernia with gastroesophageal reflux. Accordingly, Respondent's diagnosis was not substantiated. (As modified for clarity and to include the inferences of the undersigned, this FOF adopts Petitioner's PFOF -51). On July 1, 1983, Respondent admitted patient T.S. to Pembroke Pines General Hospital. Patient T.S. was assigned medical records number 9478 by Pembroke Pines General Hospital. The patient was admitted for acute right renal attack and remained in the hospital for a period of six days. On the patient's history, Respondent noted that his impression diagnosis was sinus bradycardia as a secondary problem. Respondent's evaluation of the cardiac status of the patient included ordering the following tests: three E.K.G.'s all of which were abnormal, indicating a previous myocardial infraction of indeterminate age, and a cardiac profile. In Respondent's Discharge for patient T.S., Respondent wrote: On admission, the patient was seen and examined by the ER physician, and after examination was accomplished the patient was admitted to the Telemetry Unit due to the previous history of organic heart disorder and having cardiac arrythmias. The patient was also complaining of chest pain at this time... Despite the above information, Respondent failed to obtain a cardiac "consult" for patient T.S. Furthermore, the cardiac status for the patient was never adequately evaluated. This does not meet the prevailing standards of the medical profession. (Adopts and expands Petitioner's PFOF 52-53). On July 2; 1983, an intraveneous pyelogram (IVP) was performed on patient T.S. pursuant to Respondent's order. The IVP revealed distal right ureteral calculus (or a kidney stone), which was the cause of the patient's renal (kidney) attack. Once the diagnosis of renal calculus was established, patient T.S. should have been discharged. Any remaining pain could be controlled with oral medication. However, instead of discharging the patient, Respondent kept the patient in the hospital for five extra days without adequate justification in the records. (Adopts and expands Petitioner's PFOF 54-55). While patient T.S. was hospitalized, Respondent ordered the following unnecessary or excessive testing: Lanoxin serum levels, quinidine serum levels, and a second IVP. The Lanoxin and quinidine levels would be indicated where it was necessary to monitor the levels of those drugs in the blood. However, the chart for patient T.S. contained no documentation that either quinidine or lanoxin were being administered to the patient, and, therefore, these tests were inappropriate. The second IVP was excessive testing because the first IVP provided all of the information sought by the second IVP, and the diagnosis was established on the original IVP. The hospitalization of patient T.S. was excessive in length and probably should have been no more that two days. (Adopts Petitioner's PFOF 56-57). On October 29, 1982, Respondent admitted patient D.S. to Pembroke Pines General Hospital for a hypertensive crisis and cardiomegaly. Petitioner established no violations with regardo this patient; who was assigned records number 0905. (Adopts Petitioner's PFOF 5). In general, the unrefuted expert testimony supports a finding that with respect to all of the records previously described, excluding patients O.A., R.R., R.S., A.W., and D.S., the admission notes and discharge summaries were not coherent. The undersigned accepts the expert testimony of Dr. Ehrlich that a large part of this lack of coherency is probably due to Respondent's inability to communicate in English with proficiency and fluency. However, the undersigned finds upon the expert opinion testimony of both Dr. Handworker and Dr. Ehrlich that these records of Respondent were additionally medically deficient as reflected in the foregoing findings of fact, in that Respondent's records failed to include pertinent necessary historical data that would be indicated, and Respondent failed, in his discharge summaries, specifically, to address the need for follow-up care. (Adopts, with modifications for clarity, Petitioner's PFOF 59). The refuted expert testimony is that with reference to two patients, M.A. and L.M., Respondent's records were not sufficient to justify the treatment of the patient. With respect to patient M.A., there was a significant lack of documented history and physical examination. With respect to patient L.M.; there was inadequate documentation of the clinical history and physical examination results, or of pertinent laboratory testing (venogram) to show that the patient, in fact, had phlebitis. Therefore, there was inadequate documentation for administering anti-coagulants to this patient. (Adopts Petitioner's PFOF 60). The unrefuted expert testimony is based only upon review of records. Neither testifying physician treated any patient referenced. In the case of at least one patient, the name is difficult even to determine. However, it is clear that in many instances; Respondent's records contained inadequate information to justify admission of the patients to the hospital, particularly with respect to patients C.M. (6893), F.L. (4144), J.G. (2693), E.R. (4910), E.P. (4924), 9235, K.G. (9540), M.A. (7448), and E.S. (7917). In many instances; Respondent's records were inadequate to justify many of the diagnoses which were made by Respondent. Specifically, the records for patient C.M. (6893), F.L. (4144), E.P. (4924), L.M. (6965); M.A. (7448), and E.S. (7917), did not contain justification for many of the diagnoses made by Respondent. In many instances, the records were not adequate to justify all of the testing performed, particularly those records for F.L. (4144), E.R. (4910), Patient No. 9235, K.G. (9540), M.A. (7448), E.S. (7917) and T.S. (9478). In two instances; with respect to patients M.A. (7448) and T.S. (9478); Respondent's records were inadequate to justify the length of the hospital stay. (Adopts Petitioner's PFOF 61). In many instances, Respondent unnecessarily admitted patients. By admitting patients unnecessarily and for excessive periods of time, Respondent benefited from the daily charge which he could assess for seeing the patient while hospitalized and it is possible to infer therefrom that this amounts to exploitation of patients C.M. (6893), F.L. (4144), J.G. (2693), E.R. (4910), E.P. (4024), Patient No. 9235, K.G. (9540), M.A. (7448), and E.S. (7917) for the financial gain of the Respondent. However, without some further evidence of malicious intent above and beyond mere incompetency, the undersigned views the evidence insufficient to draw such an inference. (For the reasons stated herein, Petitioner's PFOF 62 is rejected). Then Respondent unnecessarily or excessively tested patients [Specifically, patients F.L. (4144), E.R. (4910), E.P. (4924); Patient No. 9235, K.G. (9540), M.A. (7448), E.S. (7917) and T.S. (9478)], the patients or their insurance companies were required to pay the hospital for these tests which should not have been performed. However, without some evidence of conspiracy or something more than mere incompetency, the undersigned does not view the evidence as sufficient to draw such an inference. Without more than appears in this record, it is not logical to assume that Dr. Gonzalez benignly set out to profit Pembroke Pines General Hospital out of the "goodness" or "badness" of his heart. Further, the very fact that he fairly consistently avoided consultations with specialists suggests that this Respondent was not intending to enrich any third parties. (For the reasons stated herein, Petitioner's PFOF 63 is rejected). Respondent failed with respect to all of the above-named patients (excluding R.R., D.S., A.W., R.S., and O.A.) to practice medicine with that level of care, skill and treatment which is recognized as acceptable by a reasonably prudent similar physician under similar conditions and circumstances when he: admitted patients without justification; unnecessarily and inappropriately ordered tests for the patients which were not indicated by the patient's symptomatology; incorrectly diagnosed and conditions of patients he treated; inadequately documented the need for admission to the hospital and testing, inadequately documented the justification for his diagnoses and inadequately documented follow-up care; inappropriately prescribed Coumadin for patient L.M.; and excessively hospitalized two patients. (Adopts Petitioner's first PFOF 64). Respondents for the reasons previously enumerated failed to practice medicine within the prevailing standards of practice in the community. (Adopts Petitioner's second PFOF 64). Diagnoses are of great significance in a patient's care. They impact on the future well-being of the patient. Respondent, with respect to the records reflected above, failed to demonstrate adequate diagnostic ability. (Adopts Petitioner's PFOF 65).
Recommendation Based on the foregoing, it is therefore RECOMMENDED that the Board of Medicine enter a final order finding Respondent guilty of violating Section 458.331(1)(n) and (t), Florida Statutes (Counts One and Two),and not guilty of violating Sections 458.331(1)(1) and (o)(Counts Three and Four), and suspending Respondent's license to practice medicine for a minimum of three years, with reinstatement conditioned upon proof of attendance and successful completion of courses selected by the Board of Medicine related to diagnosis and necessary record keeping. DONE and RECOMMENDED this 31st day of July, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1987. COPIES FURNISHED: Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Stephanie A. Daniel Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Robert A. Gonzalez, Jr. 1900 North Univeristy Drive Suite 110 Pembroke Pines, Florida 33024 Van Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Soled Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue The issues to be resolved in this proceeding concern whether disciplinary action should be taken against the Respondent's license to practice medicine based on allegations that the Respondent violated the standard of care, specifically Subsection 458.331(1)(q) and (t), Florida Statutes, by allegedly inappropriately or excessively prescribing legend drugs and by failing to practice medicine with that level of care, skill and treatment recognized as acceptable by reasonably prudent physicians under similar conditions and circumstances. It must also be determined, if any of the alleged violations are proven, what, if any, penalty is warranted.
Findings Of Fact The Petitioner is an agency of the State of Florida charged, in pertinent part, with regulating the entry into practice and the regulation of practice of licensed physicians in the State of Florida. That statutory authority includes ascertaining whether physicians practice in accordance with the appropriate standard of care, including determinations of whether and to what degree disciplinary sanctions should be imposed, by standard set forth in Subsection 458.331, Florida Statutes. The Respondent at all times material hereto has been a licensed physician in the State of Florida. He holds license No. ME0010390. The Respondent is board-certified in surgery and thoracic surgery and has been most recently employed by the Department of Corrections (DOC) as a physician and Assistant Medical Director at the NFRC. This is a DOC facility in Lake Butler, Florida, which medically screens and processes prison inmates before they are transferred to a permanent prison location. It also provides, through a 130-bed hospital, care and treatment for inmates around the state for non-emergency conditions. The NFRC hospital does not have an intensive care unit but the DOC has a contract to provide care for emergency or complicated medical cases with the Memorial Medical Center in Jacksonville for the performance of any complex or emergency surgeries. The DOC contracted with a private company to provide surgical facilities at the NFRC for minor surgery. This includes hernia repairs and liver biopsies. The private facility maintains a "mobile surgical unit" located a few hundred yards from the NFRC hospital. This unit is not designed for serious post-surgical complications. In order to perform any surgery at this mobile surgical unit an independently-contracted surgical consultant must request the DOC to approve the surgery. Then the requested surgery must be reviewed and approved through a utilization management process. Finally, the recommended surgery is reviewed by Dr. Azcuy, the Medical Director of NFRC. Dr. Azcuy has veto power on any surgery performed at the mobile surgical unit. Once he approves a surgery, an independently contracted surgeon performs the surgery at the mobile surgical unit. After surgery is completed at the unit the patient is then taken back to the NFRC hospital where DOC employees provide follow-up care and treatment. The Respondent, as Assistant Medical Director of the NFRC hospital, is such a DOC medical employee. The Respondent, Dr. Vontz, was born May 31, 1930, in Germany. He grew up and was educated in pre-war, war-time and post-war, occupied Germany. He received his medical education at Universities in Hamburg and Freiburg, Germany, as well as at the University of Florida and the University of Michigan in the United States. He has been an Assistant Medical Professor at the University of Florida/Shands Medical Center and is board- certified in surgery and in thoracic surgery. He became a United States citizen in 1961 and located his practice primarily in Jacksonville, Florida. He practiced thoracic surgery in Jacksonville, Florida, from the early 1960's until his initial retirement on December 31, 1993. He was primarily responsible for organizing and initiating the first cardiac surgery unit and surgical team in Jacksonville, Florida. His practice involved any type of surgical intervention in the chest cavity including heart, lungs, major vessels, diaphragm, as well as open-heart surgery. He performed open-heart surgery in Jacksonville from 1965 to 1993. After initially retiring from the performance of heart surgery in 1993, Dr. Vontz was unsatisfied with retirement and returned to work as the medical director of Methodist Medical Center in Jacksonville. As Medical Director he supervised physicians and observed and monitored their manner and means of practice. He also became medical director of Champion Health Care, a Health Maintenance Organization (HMO). When Champion Health Care closed its operations in Jacksonville due to financial circumstances in 1996, Dr. Vontz went to work as an employed physician at NFRC as Senior Physician and Assistant Medical Director. He was thus an employee of the Department of Corrections at that point. Dr. Vontz stays current in knowledge of medicine and proper medical practice by participating in continuing medical education. He has never before been the object of a complaint concerning his medical practice and his rendition of medical care for patients. The Surgical Procedures A liver biopsy is a sampling of the tissue of the liver. A percutaneous liver biopsy can be performed with a closed abdomen, involving no incision. It can be done "blindly" meaning without a CT scan or laproscopic instrument for guidance of the insertion and placement of the biopsy needle device. The standard of care requires a surgeon to continue making passes or inserting a needle until an appropriate sample in obtained. The requirement of making three passes of the needle to obtain an adequate sample is probably within the standard of care. The making of four passes, as was the case with this patient, T.C., may or may not be within the standard of care. The standard of care does not specifically determine the number of passes permitted or required. The procedure for a percutaneous liver biopsy involves the use of a "trecut needle." That is a needle with a hollow metal sheath designed to allow the insertion of the needle device into the liver with the hollow sheath taking a core sample of the liver tissue, which is then withdrawn for laboratory analysis. The appropriate standard of care for such a liver biopsy, done blindly, is for the patient to be in a sitting position. This allows gravity to force the organs, including the colon and intestine in the area of the liver, to fall away from the vicinity of the liver somewhat so as to avoid some of the risk of puncturing a hollow intestine or "hollow viscous" organ with the needle. The standard of care would also require that the procedure be done under a local anesthetic so that the patient remains conscious and can demonstrate to the surgeon performing the procedure through reaction to excessive pain, etc., when the procedure may have gone awry through improper placement of the needle device. The two surgical procedures performed on patient T.C. were the percutaneous liver biopsy, with a trecut needle, and a left, inguinal hernia repair. These procedures were performed on the same surgical occasion and were performed under a general, endotracheal anesthesia with the patient on the operating table in a supine position for both procedures. Patient T.C. was a 33-year-old male. He had a left, inguinal hernia which required repair and the attendant liver biopsy procedure was performed on him because he suffered from "Hepititis C." The procedures were performed on April 14, 1998, at 8:30 a.m. by Dr. Zomorodian, a board-certified surgeon and independent contractor for the DOC. The liver biopsy in the upper quadrant required four "runs" or "passes" in order to obtain a specimen. A "gooey substance" was obtained in the trecut biopsy needle. On April 14, 1998, at approximately 9:30 a.m., right after the surgical procedures were performed, Dr. Zomorodian wrote a hand-written operative note reading in pertinent part as follows: "percutaneous biopsy of liver done first the patient tolerated the procedures well- to recovery room in stable condition." This hand-written operative note was the only report of any kind available to the Respondent from Dr. Zomorodian, the operating surgeon, concerning patient T.C. On that same day however, Dr. Zomorodian also a dictated a more detailed operative report. The operative report indicated that a "gooey substance" was obtained during the liver biopsy. Operative reports, in the normal course of business, have to be typed and filed by the administrative staff and are not generally available for approximately three days. That was the case in the instant situation and the operative report was not available at any pertinent time to the case at hand for Dr. Vontz's benefit. Although the extraction of a "gooey substance" does not automatically mean that a bowel or hollow viscous organ has been perforated by the biopsy needle, for instance it could possibly have been a substance obtained from the diseased portion of a patient's liver, it is a strong indication that a hollow viscous organ, for instance the colon, has been penetrated by the needle. The presence of the gooey substance in the biopsy needle specimen should have placed T.C.'s surgeon, Dr. Zomorodian, on notice that a complication had occurred during the liver biopsy, including the likelihood of perforation of a hollow viscous organ such as the colon or other intestinal portion. It is significant that Dr. Zomorodian, after patient T.C.'s death, asked the hospital staff to change his dictated and typed operative note to remove reference to the "gooey substance". The DOC's hospital staff refused to do so. The operative procedures were finished by 9:23 a.m. on April 14, 1998. The patient was removed to the recovery room of the mobile surgical unit and at 9:43 a.m. was given 50 milligrams of Demerol intravenously for pain. At 10:30 a.m. he was moved from the surgical unit to the second floor of the NFRC hospital. Dr. Zomorodian expected him to have pain subsequent to the liver biopsy and hernia repair. At 9:30 a.m. that morning he ordered Demerol in the amount of 75 milligrams with Phenergan intramuscularly on an as-needed basis for pain and also ordered Tylenol No. 3, one or two tablets every three hours for pain. Tylenol No. 3 contains codeine. This analgesic pain medication order by Dr. Zomorodian, according to normal written protocol for the hospital, was to be in effect for three days. Post-Operative Care On April 14, 1998, during the course of the day after surgery, T.C. complained of pain. He was given Demerol and Phenergan (25 milligrams) at 11:00 a.m., 2:30 p.m., and 10:00 p.m., in accordance with Dr. Zomorodian's standard medication order and protocol. Phenergan is a drug used to accentuate the effect of Demerol. T.C. at age 14 began to use marijuana and to drink alcoholic beverages at the age of 16. By age 20 he had started cocaine use. As shown by Dr. Lynn's testimony a patient with a drug history such as this is more resistant to pain medications and requires more of them to alleviate pain than someone who has not used such drugs on a frequent and recurring basis. T.C., in the recovery room, was given 50 milligrams of Demerol intravenously. Dr. Lynn established that this medication approximately an hour after surgery would be abnormal for a hernia repair and an uneventful liver biopsy, if such were the case, especially after receiving 20 cc's of 0.5% marcaine containing epinephrine at the end of the operation in addition to the general anesthetic which has it own pain reliever in it. The installation of the marcaine with the epinephrine should have alleviated any immediate wound pain associated with the surgical procedures. During the afternoon of April 14, 1998, the Respondent was asked by the charge nurse to examine T.C. because of her suspicion that T.C. was complaining of pain merely as a ruse to obtain drugs. The Respondent assessed the patient and determined that his complaints of pain were genuine and so he continued the medication order according to Dr. Zomorodian's standing order. Dr. Vontz had no reason to believe that the patient was having any complication or acute distress at that point and therefore went home at his usual time of approximately 4:00 p.m. His normal working hours were 7:00 a.m. to 4:00 p.m. Other senior physicians and emergency room physicians were present or on-call during evening and early morning hours under the standard operating procedure of the hospital. Dr. Vontz returned to the hospital at approximately 6:30 to 7:00 a.m. on the morning of April 15, 1998, and saw the patient at 7:15 a.m. The pain medication had been continued according to Dr. Zomorodian's order with the last Demerol injection, with Phenergan, occurring at approximately 4:05 a.m. that morning. The patient had not urinated during the day on April 14 until approximately 5:00 p.m. when he voided 300 cc's of urine with pain. When the Respondent examined the patient at 7:15 a.m. on April 15 he found and noted in his record: "abdomen tightly distended ?? rebound. Will treat as acute abdomen and follow closely." An abdomen described as "tightly distended" means that the abdomen is tense, firm and swollen. "Rebound" means that the physician has placed pressure on the abdomen with his fingers and upon release of the pressure the patient has pain. "Acute abdomen" is severe abdominal pain that could occur for a number of reasons. It could be a potentially catastrophic event needing immediate surgical intervention (abdominal exploratory surgery). It may be caused by a disease process secondary to a perforated bowel or ruptured appendix for which immediate surgery is indicated, or it may result from conditions such as a subscapsular hematoma (blood under the membrane capsule enclosing the liver), an ileous or blockage of an intestine, or may be pain resulting from a "shutdown" or failure of bowel function. It is not uncommon when abdominal surgery, even a hernia repair, has occurred that for a certain period of time, due to possible contact with the bowel during surgery, that the bowel will simply cease to function temporarily or have a halt to the peristalic movement of the bowel. Dr. Vontz thus made a decision to treat T.C. condition as an acute abdomen and then follow the patient closely to try and diagnose whether the abdominal distress was caused by a catastrophic event such as a perforated bowel requiring surgical intervention (surgically acute abdomen) or whether some other non-infectious disease process or condition was occurring causing the abdominal pain in which case it would be termed and diagnosed as a "medically acute abdomen," not necessarily requiring surgical intervention. Thus the standard of care required that the Respondent attempt to determine the underlying cause of the acute abdomen which he did by ordering a number of diagnostic tests or procedures. He also placed the patient at "NPO," meaning no nourishment or liquids by mouth. He ordered fluids administered intravenously at the rate of 150 cc's per hour, ordered an upright and "flat plate" X-ray of the abdomen and chest and additionally ordered a "stat CBC" meaning an immediate complete blood count. The stat blood count was designed to show whether white blood cell counts were elevated, which would indicate that an infectious process was going on which would require surgical exploration to determine if the colon and/or another organ had been penetrated, required repair and emergency treatment for infection. At 11:10 a.m. on the morning of April 15, Dr. Vontz also ordered a catheterization for T.C. because of the previously noted problem of low urine output. At 12:15 p.m. Dr. Vontz met with the radiologist, Dr. V. M. Saenz, and evaluated the chest and abdominal X-rays. It was their joint opinion that the chest X-ray was not remarkable. The abdominal X-ray did not show any air or fluid levels which the Respondent would expect if a perforated bowel had occurred. The presence of air (gas) or fluid would indicate the perforation of a hollow viscous organ, such as the colon. The X-ray did show a large amount of feces in the colon however. Because of the history of the recent liver biopsy the possibility of a subcapsular hematoma of the liver was considered. A subcapsular hematoma is the accumulation of blood and fluid within the membrane capsule surrounding the liver and could occur due to bleeding from the penetration of the liver by the biopsy needle. In order to investigate that possibility a CT scan of the abdomen was ordered by the Respondent and performed. The CT scan was requested on an emergency basis and performed at 1:47 p.m. on April 15. A CT scan images a patient in "slices" giving a three dimensional picture of the area in question so that the patient can be observed for any abnormalities. Drs. Vontz and Saenz interpreted the CT scan of the abdomen as follows: . . . a crescent-shaped, hypodense collection of fluid is demonstrated along the supra lateral portion of the liver. Although this could correspond to a liquefied subcapsular hematoma taking into consideration that the liver biopsy was performed yesterday . . . would expect this to be of higher density . . . there are also several fluid filled distended loops of small bowel in the left upper quadrant which most probably correspond to jejunum. Because, in effect, the collection of fluid referenced in this quoted note is not of sufficient density to be recognized as a collection of blood along the supra lateral portion of the liver, it was determined that this was serum or other fluid. Thus on April 15th at 4:00 p.m. Dr. Vontz ruled out a subcapsular hemorrhage, thus ruling out both blood and "free air" in the abdomen. In cases where the colon or other hollow viscous organ is penetrated the presence of "free air" or gas is noted in approximately 75% of the cases. Thus the lack of it is indicative, although not conclusive, of the lack of a perforation of a hollow viscous organ. When the Respondent saw the patient at 7:15 on the morning of April 15th and ordered the stat CBC the blood count was then made, some 22 to 24 hours post-surgery. The blood count showed a white blood cell count of 4.6 with the upper end of the normal range being 12.3. Thus the white blood cell count, a marker for infection, appeared entirely normal. The neutrophil portion of the blood count revealed a slightly elevated reading or a slight abnormality. Neutrophils are immature white blood cells which, if abnormally high, can indicate the presence of infection. Because they were only slightly elevated that did not really indicate infection to the Respondent since they can normally occur after surgery. A slight elevation can normally be attributed to atelectasis, a condition associated with the fact that the patient had had a general anesthesia and therefore somewhat decreased lung function as well as an abdominal operation which subsequently resulted in severe pain in the abdomen, which can cause a slight elevation in the neutrophil count. The normal white blood cell count, with only a slight increase in neutrophil reading and the absence of any significant elevated temperature on April 15th understandably resulted in the Respondent's not concluding that any infectious process was going on at that point. This is certainly an abnormal presentation of symptoms by a patient, who upon autopsy, was proven to have had a large, two centimeter perforation of the colon, with a massive peritonitis infection. In such a patient it is highly unusual for more blatant signs of an infectious process, including a significantly elevated, white blood cell count, not to have occurred 24 hours after the surgical procedure which resulted in the perforation. On April 15th at 4:00 p.m., Dr. Vontz ruled out a subcapsular hematoma or hemorrhage and ruled out blood and free air being present in the abdomen. The CT scan however, did show the presence of a fluid collection in the vicinity of the liver, as found above. Also on April 15th at 5:00 p.m., Dr. Vontz ordered the placement of nasogastric tube in the patient in order to prevent his swallowing air and causing further distention of the alimentary tract. At 7:00 p.m. that evening the patient removed the nasogastric tube on his own and refused to have it replaced. He was uncooperative with care throughout that shift even when the nurse explained the necessity of his treatment. On the morning of April 15th at 6:30 a.m., just before the Respondent saw him, T.C.'s vital signs were within normal limits. At 1:25 p.m. that day, some 29 hours after the liver biopsy, his vital signs were still within normal limits. His blood pressure was 134/88, his temperature was 97.4, his heart rate was 110, and his respiratory rate was 20 at 1:25 on April 15th. Thus he was still not demonstrating an infectious process some 29 hours after the surgical procedure involved. On April 15, 1998, at approximately 5:00 p.m. the patient's abdomen remained distended, without audible bowel sounds and he continued to complain of pain. His urine was dark and concentrated. Once again, in accordance with Dr. Zomorodian's orders, was given Demerol at approximately 5:00 p.m. on April 15th. On April 16, at approximately 6:25 a.m., T.C. was restless and continued to complain of severe pain, he was again given Demerol. At 6:22 a.m. on the morning of April 16th approximately 46 hours subsequent to the liver biopsy, his vital signs were still within normal limits. At 8:00 a.m. that morning Dr. Vontz ordered that he be maintained on NPO status; that intravenous fluids be decreased to 100 cc's per hours and that he be given a dulcolax suppository because of his bowel status. T.C., as a result, had a large emptying of the bowel, which made him feel grossly better. During his interview with Dr. Vontz at approximately noon that day he was able to stand at his bedside and sit by his bedside and converse with Dr. Vontz. At 8:45 that morning of April 16th, Dr. Vontz had ordered a "stat Chem 20 test." The "Chem 20" revealed hemoconcentration or concentration of the blood, which indicated dehydration. At 12:40 p.m. on April 16th, Dr. Vontz ordered a foley catheter inserted in the patient's bladder and ordered another Chem 20 test of his blood for April 17th. He also ordered clear liquids for T.C. since he seemed to be feeling better after the bowel movement and the Respondent felt he could take clear liquids by mouth. His urine output remained low and at 1:00 p.m. on April 16th, Dr. Vontz ordered a urine culture and sensitivity study. The urine culture was ordered by the respondent by telephone upon a nurse contacting him because he was at an in-service training seminar some half-mile away from the patients hospital floor at that time. By 1:00 p.m. the patient was very restless, becoming somewhat confused and was tachycardic, which means increased heart rate. His heart rate was as high as 159 beats per minute. He had a respiratory rate of 28 and a blood pressure of 94/64 in the afternoon of the 16th. In addition to ordering the urine culture, an electrocardiogram was performed on the patient, ordered approximately at 1:00 p.m., which revealed abnormal tachycardia. Dr. Vontz listened to T.C.'s bowel sounds on both the morning of the 15th and the morning of the 16th. His bowel sounds were returning to normal on the morning of the 16th and after receiving the suppository T.C. had a bowel movement, which gave the Respondent the impression that the patient was improving. Clinically, he exhibited no nausea, vomiting, or any sign of bowel obstruction. The low urine output and the tachycardic condition along with the elevated respiratory rate and depressed blood pressure after 1:00 p.m. on the 16th showed that the patient, however was becoming more critically ill. In retrospect it is apparent that he was in septic shock. Dr. Vontz last visited the patient at 4:30 p.m. on the 16th. He determined that he should be transported to Memorial Hospital for more aggressive care, including surgical exploration of the abdomen to attempt to determine the cause of his condition. The Respondent elected however, because of the lateness in the day to avoid confusion and discontinuity in his care and treatment by having him transported early the following morning. Dr. Vontz felt there would be less likelihood of delay or interruption in the level of care for the patient than if he arrived at the critical care hospital in the middle of the evening. After seeing the patient at approximately 4:30 p.m., Dr. Vontz went home but remained in telephone communication with the hospital, medical staff and the registered nurse on duty. At approximately 8:15 p.m. on the 16th Katherine Kravitz, R.N., called Dr. Vontz informing him that T.C. had "spiked a fever," measured at the axcilla (armpit) at 103 degrees. She also advised the Respondent that the Chem 20 test had been returned and demonstrated a BUN of 55. Dr. Vontz determined that this demonstrated hemoconcentration, indicating dehydration. Dr. Vontz therefore increased his fluids intravenously to 150 cc's per hour. He also ordered Lasix to be provided, as a "one-shot" medication, because he was concerned about T.C.'s kidney function being substandard, in view of the rising BUN reading and because the fluid was being increased to 150 cc's per hour. He wanted to be sure that T.C. was able to void sufficient urine to accommodate the increase in intravenous fluid. He learned that T.C. had adequate kidney function to accommodate the increase in IV fluid administration. He also ordered at this time that T.C. be given Fortaz at 1 gram every 8 hours intravenously. Fortaz is an antibiotic specifically designed to attack abdominal infectious processes especially attributable to escherichia coli (e-coli) contamination in the abdomen. Dr. Vontz was of the belief that the sudden temperature elevation indicated that there had been a sudden burst of infection. Up to the point of the telephone call at 8:15 the evening of the 16th T.C.'s temperatures had not been significantly elevated, although other of his vital signs on the afternoon of the 16th had indicated abnormality, involving low blood pressure, elevated respiratory rate and tachycardia, as found above. Dr. Vontz called nurse Kravitz at 11:00 p.m. on April 16th and learned that T.C.'s temperature was down from 103 to 100.6 degrees. This led him to believe that the antibiotic administration and the IV fluid therapy was improving the patient. Earlier on April 16th at approximately 4:30 p.m. in response to the patient's restlessness and continued severe pain the Respondent had ordered Ativan and Morphine, as well as placing him in restraints and a posey vest. The Ativan and restraints were ordered because of his restlessness and anxiety. The Morphine is a narcotic stronger than Demerol in its analgesic properties. Patient T.C. at 6:00 p.m. that day was still confused and his urine was dark amber in color, indicating dehydration. Throughout the late night of April 16, 1998, the nursing notes indicated that the patient was moaning and groaning without verbal response and was no longer fighting against his restraints. In retrospect it is clear that he was dying. The information given Dr. Vontz when he called the nurse to check on the patient at approximately 11:00 p.m. on April 16th, and learned that the patient's temperature was down to 100.6 and that his other vital signs were returning to normal levels, indicated to him that the antibiotic and intravenous fluid therapy was helping the patient to improve. Curiously, the hospital records indicate that on the early morning of April 17th at 1:15 a.m., the patient's temperature was 100.6, his pulse rate was down to 80, and his respiratory rate was 24 with blood pressure at 100/60, indicating vital signs returning to normal levels. At 3:45 a.m. on April 17th however, T.C. was found to be without vital signs and was shortly thereafter pronounced dead. Thus, within 55 hours of the attempted liver biopsy by Dr. Zomorodian, T.C. was dead. Upon autopsy, it was found that he had a two centimeter diameter hole in his colon which caused significant release of e-coli bacteria into T.C.'s abdominal cavity, resulting in massive, acute bacterial peritonitis. Dr. Vontz arose at his home at approximately 4:00 a.m. on the morning of April 17th to go to the hospital to arrange for the patient's transfer to the acute facility at Memorial Medical Center. He was shocked to arrive and find that the patient had died. The patient had been seen on the night of the 16th and early morning of the 17th by the emergency room physician on duty, Dr. Edwards. Emergency room physicians are involved in continuing the treatment of in-house patients at NFRC when attending physicians are off-duty. Analysis of Responsibility The medical examiner, Dr. Hamilton, who performed the autopsy on T.C. found the two centimeter hole in the proximal transverse colon. The proximal transverse colon is on the right side of T.C.'s body adjacent to the liver. This clearly demonstrated that the attempted liver biopsy by Dr. Zomorodian caused the perforation of the colon in the vicinity of the liver. The patient had been given 50 milligrams of intravenous Demerol at 9:43 a.m. by Dr. Zomorodian's order. This need for medication only approximately an hour after surgery would be abnormal for a hernia repair and an uneventful liver biopsy. Less than an hour after receiving this Demerol T.C. was moved out of the surgical unit recovery room and taken to "two West" in the NFRC hospital. When transferred to the NFRC hospital it would have been certainly appropriate for Dr. Zomorodian to admonish, in his post-operative note, as testified to by Dr. Lynn, that "we may have caused this patient some problems, we did four sticks, we came back with a gooey substance, watch this patient carefully." Instead Dr. Zomorodian only made a cryptic post- operative note to the effect that the liver biopsy was done, with no more description than the fact that it was done. Although he dictated and had typed a more elaborate post-operative note that mentioned the gooey substance, this was not available at any time to Dr. Vontz during his care of the patient. Moreover, Dr. Zomorodian attempted to have the reference to the gooey substance edited out of his post-operative note, which the hospital staff quite correctly refused to do. The surgeon performing the surgical procedures, under the protocol of the American College of Surgeons and the NFRC protocol should not delegate post- operative care to someone else, under normal circumstances. If that surgeon cannot be involved in the post-operative care, he must communicate in a very clear and unequivocal fashion, to one who has been delegated the post-operative care, all information concerning the surgical procedure and the care of the patient while the patient was under his care and treatment, which Dr. Zomorodian did not do. It was thus incumbent upon Dr. Zomorodian to make certain that there was effective follow-up care for his patient but there is nothing in the record to indicate that Dr. Zomorodian ever called anyone associated with the NFRC hospital, post-operatively, to check on his patient or to provide them information concerning the patient. Be that as it may, the Respondent, in the absence of any information from Dr. Zomorodian, in following the appropriate standard of care, should have contacted Dr. Zomorodian as the surgeon of record during the course of the care of T.C., and he failed to do so. Dr. Vontz also departed from the appropriate standard of care in several other particulars. First, he failed to adequately recognize and act on the knowledge produced by the CT scan that there was a fluid collection, which did not appear to be blood, in the vicinity of the liver. This clue, learned by the Respondent and the radiologist at approximately 4:00 p.m. on April 15th would seem to indicate that aggressive, surgical intervention early in this patient's course of care was in order. Moreover, in the face of the patient's continuing symptoms, and even though the initial complete blood count did not show an elevated white cell count, and thus did not seem to indicate infection, a later CBC should have been ordered on April 15th or even April 16th; particularly on the morning of April 16th in a continuing effort to rule out an infectious process beginning in the patient. This was not done after the initial CBC was obtained on the morning of April 15th. Additionally, compliance with an appropriate standard of care would dictate that by the early afternoon of April 16th, with the presence of tachycardia, depressed blood pressure, elevated respiratory rate, and the continuing severe abdominal pain, that the Respondent should have transferred the patient to Memorial Medical Center that afternoon for more aggressive treatment. The decision to transfer him did not occur until early in the evening of the 16th and then the Respondent, for the reasons found above, decided not to effect the actual transfer until early the following morning, by which time it was, of course, too late. Although the Respondent was not clearly alerted to an infectious process until the high temperature which occurred after 8:00 p.m. on the night of the 16th, the other critical symptoms earlier in that afternoon should have compelled him to have the patient transferred to the acute care facility. Indeed, if a CBC had been ordered to look at white blood cell count earlier on the 16th or even on the afternoon of the 15th the progress of the infection might have been detected even though it was not resulting in any significant increase in body temperature. Thus, in these particulars, the Respondent must be found to have violated the appropriate standard of care as well as in the fact that during the day on April 16th he did not make progress notes outlining his treatment plan. That is not a finding that he had no treatment plan, however. Taking a more prophylactic, cautious view of the results of the CT scan and the ordering of an additional CBC on late April 15th or early on April 16th might have pointed him toward a finding of the existence of a surgical problem rather than a medically acute abdomen problem. This would have impelled him to effect aggressive surgical intervention earlier, with the possibility of saving the patient. In fairness to Dr. Vontz it should be pointed out that infectious peritonitis is a rapid and devastating illness, but death within the third day of contamination is a bit rapid and unusual. Moreover, traditionally a patient experiencing one or more perforations of the colon usually evolves a clearly discernable infectious process around the 24th hour after the perforation occurs. The medications ordered and administered by the surgeon, Dr. Zomorodian, could have masked some symptoms and led the later care-giver astray as to the evolving signs and symptoms of a perforated viscous for a time. T.C.'s infectious process presented in an unusual manner. A typical patient would demonstrate severe illness, with nausea, vomiting, and severe pain. In the vast majority of cases he would exhibit free air or gas under the diaphragm and would have an elevated white blood cell count fairly early, with associated elevated body temperature or fever and chills. Dr. Vontz indeed considered the issue of a perforated bowel and performed the above-found tests in an effort to find evidence of it. He believed the test results, including the complete blood cell count did not produce evidence to support the existence of a perforated bowel. In fact, however, the abnormality on the CT scan involving hypodense fluid in the vicinity of the liver should have alerted him to that potential and he should have ordered an updated complete blood cell count which might have told him of the advancing infectious process at an early enough time to have saved the patient. In fact, the evidence demonstrates that the time period between 12 hours and 48 hours after such a perforation and inoculation with e-coli bacteria occurs is critical and that after 48 hours without aggressive, surgical intervention it is improbable that such a patient can be saved. A more aggressive approach to the result of the CT scan abnormality, an updated complete blood cell count and contact with the surgeon involved would have been a more appropriate standard of care and might have compelled Dr. Vontz to have acted more quickly in having the patient transported for more critical intensive care.
Recommendation Accordingly, having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties it is, therefore, RECOMMENDED: That a final order be entered by the Board of Medicine finding the Respondent guilty of violating Subsection 458.331(1)(t), Florida Statutes, in the above-found and concluded manner, and not guilty of violating Subsection 458.331(1)(q), Florida Statutes, and that, as a penalty therefor the Respondent shall: Complete 50 hours of continuing medical education in surgery; Complete the Florida Medical Association Quality Medical Records Course; Remain on a probationary status for a period of one year with the probationary term to require a review of 25% of the Respondent's medical records by a supervising physician approved by the Board of Medicine. DONE AND ENTERED this 19th day of July, 2000, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 19th day of July, 2000. COPIES FURNISHED: Kristy Johnson, Esquire Department of Health Post Office Box 14229 Tallahassee, Florida 32317-4229 Thomas R. Brown, Esquire Brown, Terrell, Hogan, Ellis, McClamma and Yegelwel, P.A. Blackstone Building, Eighth Floor 233 East Bay Street Jacksonville, Florida 32202 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Angela T. Hall, Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Tanya Williams, Executive Director Board of Medicine 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against a medical doctor on the basis of alleged violations of paragraphs (d), (g), (k), (m), (n) and (t) of Section 458.331(1), Florida Statutes (1989). The violations charged relate primarily to allegations that the Respondent improperly ordered and performed certain allegedly unnecessary tests, failed to keep appropriate records, and deceived and exploited a patient.
Findings Of Fact The Respondent, Eric Dale Rosenkrantz, M. D., is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME 0045339. The Respondent's last known address is 12900 N.E. 17 Avenue, Suite 205, North Miami, Florida 33181. The Respondent is board certified in Internal Medicine and he is board eligible in Cardiovascular medicine. On October 18, 1989, a Health Fair was held at the Diplomat Mall in Hallandale, Florida. The Health Fair had been advertised by distribution of a written news release. The Respondent did not participate in the preparation of the news release, nor had he seen a copy of the news release prior to the date of the Health Fair. The news release read, in pertinent part: . . . Make good health a priority in your life. It's much better to take a few tests and learn effective disease prevention than to fall victim to a crippler. As a community service, Diplomat Mall sponsors a free Health Fair on Tuesday, Wednesday and Thursday (October 17-19). The public may take advantage of free screenings, a low cost cholesterol test and receive helpful advice. Dr. Lloyd Morris, who also serves as the Health Fair Coordinator, will offer cholesterol tests for five dollars. In addition, he'll conduct spinal screenings. If you're having trouble listening and not catching every word, check with the Hearing Aid Center's expert for a hearing test. A local cardiologist will consult with visitors regarding their health patterns and will give carotid artery tests. For those battling to stop smoking, there will be a unique Stop Smoking Computer. Dental screenings and information on cosmetic dentistry will be available. Dr. Braverman will examine and evaluate eyes and eye problems. NSA will provide a pure water display illustrating the dangers of untreated waters. COLOR ME THIN, an innovative consulting service will provide clinical nutritional counseling and discuss colors in relation to energy levels of the body. Representatives of the Medical Alert System will also be in attendance during the free Health Fair at the Diplomat Mall, located on East Hallandale Beach Boulevard in Hallandale. (Emphasis added) The Respondent participated in the Health Fair described above. The Respondent was the only cardiologist who participated in that Health Fair. 4/ In connection with the Health Fair the Respondent did not have any signs offering free testing or any other free services. During the course of the Health Fair described above, the Respondent had a booth in the mall. He and his technologist were demonstrating a diagnostic ultrasound machine, which visualizes internal and external carotid arteries on a screen, and were handing out papers regarding risk factors for heart disease. On October 18, 1989, while the Health Fair was in progress, E. G. went to the Diplomat Mall where, among other things, she saw the Respondent's booth. Prior to going to the mall that day, E. G. had seen a newspaper advertisement about the Health Fair, but she had not seen the press release described and quoted above. E. G. approached the Respondent's booth where she communicated with one or more of the people who were attending the booth. As a result of those communications, 5/ the Respondent was escorted to the Respondent's office in the mall. At the Respondent's office E. G. provided her health insurance card to the Respondent's nurse. The nurse made a photocopy of the card and returned it to E. G. The nurse then took a preliminary screening medical history from E. G. by asking E. G. a series of questions and noting the responses on a printed form. 6/ The preliminary medical history given by E. G. included that she was 64 years old, had suffered a prior heart attack, was a diabetic on medication, had a history of heart disease in her family, and had a personal physician named Dr. Gorin. E. G. also related current symptoms of dizziness, numbness in her hands and feet, and shortness of breath. The preliminary history form included a place for the patient's signature at the bottom of the form. Immediately above the signature line the following statement appears on the form: I completely understand that the follow-thru test for arterial blockage (if deemed necessary by the examining physician of this program) will be billed to my insurance carrier or Medicare. I understand that this assignment of my health insurance is extended as a courtesy to me to avoid up front out-of- pocket costs. E. G. signed the form at the place indicated immediately under the statement quoted immediately above. After signing the form described above, E. G. was escorted to an examination room where she was further questioned about her medical history and current symptoms by the Respondent. E. G. repeated to the Respondent that she was suffering from shortness of breath, numbness in her left arm, and dizziness which lasted for several minutes at a time. E. G. also told the Respondent that she had not seen Dr. Gorin for a long time and that it had been a long time since she had undergone a complete examination. After eliciting her history and current symptoms, the Respondent conducted a physical examination of the patient E. G. The physical examination included taking her blood pressure, measuring her respiratory rate,examination of her eyes, neck, carotid sounds, and chest, cardiac auscultation, and palpation of her extremities for pulses. The Respondent's findings on examination were that the patient E. G. had a normal blood pressure, a pulse rate of 78, a respiratory rate of 18, arcus senilis, a bruit on the left carotid artery, a laterally displaced point of maximum intensity, a heart murmur, and decreased pulses in her extremities. Arcus senilis is a sign of arteriosclerosis, which is a thickening of the arterial vessels. Arteriosclerosis is the most common cause of coronary artery disease. A laterally displaced point of maximum intensity is a finding that is common in hypertensive patients. A heart murmur is indicative of some back flow or other insufficiency of one of the heart valves. Decreased pulses in the extremities is indicative of a possible arterial blockage. On the basis of the history he obtained from the patient and the results of his physical examination of the patient, the Respondent reached the following preliminary diagnostic impression: "Hypertensive cardiovascular disease, myocardial ischemia, mitral regurgitation, claudication, and cerebral insufficiency." On the basis of his preliminary impression, the Respondent recommended that the patient E. G. undergo the following tests: cardiac doppler (echocardiogram), carotid imaging, upper arterial doppler, venous doppler, atrioventricular 1000 venous, and atrioventricular 1000 arterial tests. The patient E. G. agreed to undergo the recommended tests, which were then performed by a technologist employed by the Respondent. 7/ The patient's history and the results of the physical examination of the patient were a sufficient basis for going forward with the tests recommended by the Respondent. Each of the tests was justified by the patient's symptoms and by the results of the physical examination of the patient. Each of the tests was reasonably calculated to assist the Respondent in arriving at a diagnosis of patient E. G.'s condition. In view of the patient's symptoms and the findings during the physical examination, it was not a departure from accepted standards of care for the Respondent to recommend the tests described above and have them performed on the patient E. G. All of the tests described in Paragraph 14, above, are tests commonly used by cardiologists for the purpose of diagnosis. Many cardiologists perform those tests in their own offices, rather than send patients elsewhere for such testing. The Respondent's medical records regarding the patient E. G. are sufficient to justify the course of treatment for the patient. Those records contain all information a subsequent treating physician would need to know about the Respondent's treatment of the patient. The records do not depart from accepted standards of care. The Respondent subsequently billed E. G. $3,230.00 for the recommended tests and other services. E. G.'s insurance company rejected payment for the subject tests because her insurance coverage had expired.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine enter a Final Order in this case dismissing all charges against the Respondent. DONE AND ENTERED this 25th day of October, 1994, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1994.
The Issue The issue for determination at formal hearings was whether Respondent committed the offenses set forth in the amended administrative complaint, and, if so, what action should be taken.
Findings Of Fact The Agency for Health Care Administration (AHCA) is the state agency charged with regulating the practice of medicine pursuant to Sections 20.165 and 20.42, Florida Statutes, and Chapters 455 and 458, Florida Statutes. At all times material hereto, Alejandro Jose Vilasuso (VILASUSO) has been a physician licensed in the State of Florida, having been issued license number ME 0042999. At all times material hereto, VILASUSO's primary practice was located at 4995 S.W. 82nd Street, Miami, Florida. This address was filed with the Board of Medicine and for the past five years was a part of its records. Also, at all times material hereto, VILASUSO had a satellite office located at 2245 S.W. 27th Street, Miami, Florida. On or about March 11, 1993, Patient J. K. presented to VILASUSO at his satellite office for hypertension. From March through June 1993, she had monthly appointments with him at the satellite office. Patient J. K.'s former husband, Patient C. M., was having a prostate problem. Patient J. K. recommended that he consult with VILASUSO regarding his prostate problem. On or about June 28, 1993, Patient C. M. presented to VILASUSO, at his satellite office, regarding the prostate problem. Patient J. K. accompanied Patient C. M. to VILASUSO's office. Patient C. M.'s blood was drawn for lab tests. He was also provided with a two-week prescription for medication and scheduled for a follow-up appointment on July 8, 1993, at which time VILASUSO would discuss the lab results and his recommendations. Patient C. M. informed Patient J. K. that he had had blood drawn for lab tests, regarding his prostate problem, and that he was returning on July 8, 1993, to discuss the test results with VILASUSO and his (VILASUSO's) recommendations. VILASUSO and his landlord at the satellite office had been having an ongoing rent dispute, concerning an increase in VILASUSO's rent. VILASUSO had refused to sign a long-term lease agreement and, as a result, was on a month-to- month lease. Hoping to force a settlement of the dispute, VILASUSO withheld his rent for June 1993. However, in the last week of June, approximately two days before July 1, 1993, the landlord reacted by threatening to lock VILASUSO out of his office. It was clear to VILASUSO that the dispute could not be resolved and that he had to move on or before July 1, 1993. On or about July 1, 1993, VILASUSO relocated his satellite office. However, he saw all patients scheduled for that day before relocating. He moved about five blocks away. Before leaving his office that day, VILASUSO indicated his new address on a piece of cardboard and posted it on the outside of the office. Telephone service for the satellite office was discontinued between June 28, 1993, and July 8, 1993. Attempting to directly notify his patients of his relocation immediately after the move, VILASUSO directed his office staff to notify all patients by telephone who had an appointment within the following two weeks or who were very ill of the relocation and/or to reschedule their appointments. All other patients were notified of his new location by letter. Patient C. M. had an upcoming appointment within the two-week period. However, for some unknown reason, he was not contacted and VILASUSO did not discover this mistake until sometime after Patient's C. M.'s scheduled appointment on July 8, 1993. On or about July 6, 1993, Patient J. K. went to VILASUSO's former satellite office and found it deserted. She contacted Patient C. M. and told him what she had discovered. On July 8, 1993, Patient C. M. was unable to keep his scheduled follow-up appointment because he was unaware of VILASUSO's new location. On or about July 15, 1993, Patient J. K. discovered the location of VILASUSO's new satellite office and informed Patient C. M. On that same day, Patient J. K. went to VILASUSO's new office and requested a copy of Patient C. M.'s medical records. Believing that Patient J. K. was Patient C. M.'s confidant and that she was requesting the medical records on behalf of Patient C. M., VILASUSO released the records to her. VILASUSO released a copy of Patient C .M.'s records to Patient J. K. without written authorization from Patient C. M. Patient J. K. was neither Patient C. M.'s legal representative nor his other health care provider. On or about July 15, 1993, Patient J. K. notified Patient C. M. by telephone that she had obtained a copy of his medical records and was mailing the copy to him. Patient J. K. mailed the records, and Patient C. M. received them. On June 29, 1993, VILASUSO had only received Patient C. M.'s partial lab results, so the medical file contained only the partial lab results. On July 20, 1993, VILASUSO received the remainder of the lab results, which were normal, and mailed them to Patient C. M. At all times material hereto, VILASUSO did not place an advertisement in the newspaper notifying his patients of the effective date of his relocation and an address at which patients could obtain their records.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order: Dismissing Count One of the Amended Administrative Complaint. Finding a violation of Section 458.331(1)(g), Florida Statutes, as stated in Count Two of the Amended Administrative Complaint. Imposing a reprimand and an administrative fine of $1,500. Imposing a requirement of reading Chapters 455 and 458, Florida Statutes, and submitting an affidavit attesting to such fact. Imposing Continuing Education requirements concerning confidentiality of patient records under terms and conditions determined to be appropriate by the Board of Medicine. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of March 1995. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March 1995
Findings Of Fact Findings based on stipulation Petitioner is the state agency charged with regulating the practice of osteopathic medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 459, Florida Statutes. Respondent is, and has been at all times material hereto, licensed to practice osteopathic medicine in the State of Florida, having been issued license number OS 0001228. Respondent's last known address is 577 N.E. 107th Street, Miami, Florida 33161. Findings based on evidence at hearing On November 5, 1990, patient N. S. initially presented to the Respondent's office for a physical examination for the purpose of obtaining health insurance with Blue Cross & Blue Shield of Florida. During the course of the initial visit, when the Respondent became aware of where N. S. and her mother lived, it was obvious to him that N. S. lived in an expensive residential area and was probably a person of substantial financial means. Patient N. S. subsequently presented to the Respondent and received treatment from him for a variety of complaints on the following dates: November 14 and 27, 1990; December 10 and 20, 1990, January 7, 23, and 28, 1991, March 5, 1991, and April 15, 1991. Patient N. S. paid for all of the treatments and laboratory tests on the dates the treatments and tests took place. At the request of the Respondent, the checks written by patient N. S. to pay for services provided by the Respondent were made out to "cash." One day in early January of 1991, the Respondent contacted the patient N. S. by telephone at her home and asked her to loan him $8,000.00 or $8,500.00. The Respondent told the patient N. S. he needed the money because he was three months behind in making payments on the mortgage on his office-house, and because the mortgage was going to be foreclosed if he failed to pay the past due amounts in the next couple of days. In the course of this conversation the Respondent also remarked to N. S. that he would not be able to help her get well if the mortgage were to be foreclosed and he were to lose his office. Patient N. S. initially refused to loan any money to the Respondent. During the course of the next two days, the Respondent made numerous repeated pleas to N. S. for a loan. Ultimately, N. S. agreed to loan the Respondent a total of $1,000.00. The loan was to be repaid within sixty days and was without interest. On January 11, 1991, patient N. S. wrote a personal check to the Respondent in the amount of $1,000.00. Thereafter, the Respondent cashed the check. The patient N. S. made the $1,000.00 loan to the Respondent because she wanted the Respondent to be able to continue to treat her and not have his office repossessed. The Respondent did not timely repay the $1,000.00 loan. Shortly after the due date, the patient N. S. asked the Respondent on several occasions to repay the loan. On April 15, 1991, the patient N. S. sent a certified letter to the Respondent requesting repayment of the loan. On July 2, 1991, the patient N. S. sent the Respondent another certified letter requesting repayment of the loan and advising the Respondent that if the loan was not repaid by July 12, 1991, she intended to send complaints to the Department of Professional Regulation and to the Internal Revenue Service. During March and April of 1991, the Respondent was ill. Towards the end of April the Respondent was hospitalized and underwent surgery. The surgery was followed by several weeks of recuperation. During this period the Respondent had very little income and it was not possible for him to repay the loan to the patient N. S. On July 24, 1991, the patient N. S. sent yet another certified letter to the Respondent. In the letter of July 24, 1991, the patient N. S. requested that the Respondent provide her with various specified documents related to his treatment of her, including "my complete medical records." The patient N. S. sent a copy of the July 24, 1991, letter to the Department of Professional Regulation. On that same day, the patient N. S. signed and mailed to the Department of Professional Regulation a Uniform Complaint Form complaining about the Respondent. On August 29, 1991, the Sunshine Messenger Service delivered to the patient N. S. a letter from the Respondent dated August 28, 1991, which read as follows: Enclosed is the sum of $1000 in return for the check you loaned to me. I'm sorry that it took as long as this date to return same. Your request for your records, etc. are being copied and will be mailed very soon. Sorry for the delay. Hope you are in good health. The letter was accompanied by two postal money orders payable to the patient N. S., each in the amount of $500.00. On September 16, 1991, Petitioner's investigator Schaublin spoke by telephone with the Respondent and at that time advised him of the Complaint that had been filed against him by his patient N. S. Investigator Schaublin advised the Respondent that two principal issues were being investigated: (1) his request and receipt of a loan that was not timely repaid, and (2) his failure to provide medical records requested by the patient. During the telephone conversation of September 16, 1991, the Respondent agreed to meet with the investigator at the investigator's office on September 25, 1991, and to bring with him at that time the medical records of the patient N. S. On September 25, 1991, the Respondent went to the investigator's office and delivered to the investigator a set of medical records for the patient N. S. The records appeared to be facially complete. The investigator handed the Respondent a subpoena for the records at the time the records were delivered to the investigator. At some time between the Respondent's receipt of the July 24, 1991, request for records and his delivery of records to the investigator on September 25, 1991, the Respondent discovered that two pages were missing from the records of the patient N. S. The missing pages consisted of the Respondent's progress notes regarding the treatment of the patient N. S. The Respondent conducted an extensive, but unsuccessful, search for the two missing pages. Upon concluding that he was unlikely to find the missing pages, the Respondent contacted an attorney and requested advice as to what he should do under the circumstances. The attorney advised the Respondent that he should do the best he could to reconstruct the missing records from his memory and from whatever other information was still available. The Respondent did his best to follow the advice he had received from the attorney. In an effort to verify dates, the Respondent called the pharmacy to which he had called in prescriptions for the patient N. S. With the information he had at hand, and based on his memory of his treatment of the patient N. S., the Respondent reconstructed the two missing pages of progress notes. In the process of reconstructing the progress notes, the Respondent made some inadvertent mistakes regarding the dates on which certain office visits took place. Other than the mistakes as to some of the dates, the reconstructed records accurately and sufficiently describe the Respondent's treatment of the patient N. S. The Respondent's records of his treatment of the patient N. S. do not contain a notation that the progress notes are reconstructed notes. When the Respondent delivered medical records to the Petitioner's investigator on September 25, 1991, he did not tell the investigator that two pages of the records had been reconstructed. Upon review of the medical records delivered by the Respondent, the investigator noted that some of the dates in the progress notes did not match dates with other documents in the investigator's possession and also noted that the progress notes looked like they had all been written at the same time. On September 27, 1991, the investigator contacted the Respondent by telephone and brought these apparent irregularities to the Respondent's attention. During the telephone conversation of September 27, 1991, the Respondent told the investigator that he had reconstructed the progress notes after being unable to find the missing notes. This was the first time the Respondent had mentioned to the Petitioner that the subject medical records contained two reconstructed pages. On October 4, 1995, the Respondent sent copies of his records to the patient N. S., along with a letter addressed to the patient N. S. The letter read as follows: Sorry for the delay in mailing your records. I have diligently looked thru your file and in the office and at home for the medical records missing that are the two written pages that I have reconstructed to the best of my ability as to dates. The billing ledger was also in the chart and has not been found. In order to recreate the bills for tax purposes, I could help you if I had the dates and amounts from photocopies of the cancelled checks. The Respondent did not destroy any medical records regarding the patient N. S. The Respondent did not falsify or attempt to falsify any medical records of the patient N. S. The documents of which official recognition has been taken reveal that the Respondent has been the subject of prior disciplinary action by the Petitioner. The most significant instances of prior disciplinary action were DPR Case No. 0052390, in which the Respondent stipulated to the imposition of disciplinary action on the basis of violations related to the improper prescription of controlled substances, and DPR Case No. 89-008659, in which the Respondent stipulated to the imposition of disciplinary action on the basis of a violation related to exploitation of a patient for financial gain by borrowing money from a patient. At the time of the Respondent's treatment of the patient N. S., the Respondent was still serving the term of probation imposed in DPR Case No. 0052390.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case to the following effect: Dismissing Counts Two, Three, Four, Five, and Six of the Administrative Complaint; Finding the Respondent guilty of the violation charged in Count One of the Administrative Complaint; and Imposing a penalty consisting of all of the following: (a) an administrative fine in the amount of one thousand dollars ($1,000.00), (b) suspension of the Respondent's license for a period of ninety (90) days, (c) placing the Respondent on probation for a period of one (1) year following the suspension, and (d) restricting the Respondent's practice by prohibiting him from entering into any financial arrangements with patients other than those arrangements reasonably necessary to assure payment for osteopathic medical services provided by the Respondent. DONE AND ENTERED this 6th day of March 1996 at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March 1996. APPENDIX The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs 1 through 10: Accepted in substance, but with a few unnecessary details omitted and with a few details modified in the interest of clarity. Paragraph 11: Rejected as subordinate and unnecessary details. Paragraph 12: Accepted in substance. Paragraph 13: Rejected as irrelevant. Paragraph 14: Accepted in substance. Paragraph 15: Rejected as irrelevant. Paragraphs 16 through 20: Accepted in substance, but with a few unnecessary details omitted and with a few details modified in the interest of clarity. Paragraph 21: First sentence accepted in substance. Second sentence rejected as subordinate and unnecessary details. Paragraph 22: Rejected as irrelevant. Findings submitted by Respondent: Paragraphs 1 and 2: Accepted. Paragraph 3: Accepted in part and rejected in part. Accepted that the Respondent and N. S. had a physician-patient relationship during the relevant time period. The notion that the Respondent and N. S. also had a business venture relationship is rejected as contrary to the greater weight of the evidence. N. S. made suggestions to the Respondent as to how he could improve his practice, but there was no joint business venture relationship. Paragraph 4: First sentence accepted in substance. The second sentence is rejected as contrary to the greater weight of the evidence; there was no business relationship. Paragraph 5: Accepted in substance. Paragraphs 6 and 7: Rejected as subordinate and unnecessary details. Paragraphs 8 through 12: Accepted in substance. Paragraph 13: Accepted in substance, with the exception of the second sentence and the last sentence. The second sentence is rejected as not supported by persuasive competent substantial evidence. The last sentence is rejected as subordinate and unnecessary details. Paragraph 14: Accepted in substance. COPIES FURNISHED: Kenneth J. Metzger, Esquire Agency For Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Michael J. Doddo, Esquire 100 Southeast 12th Street Fort Lauderdale, Florida 33316 William H. Buckhalt, Executive Director Board of Osteopathic Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Douglas M. Cook, Director Agency For Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman, General Counsel Agency For Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact The parties Petitioner, Agency for Health Care Administration, Division of Quality Assurance, Board of Medicine, formerly Department of Business and Professional Regulation, Board of Medicine, is the state government licensing and regulatory agency charged with the responsibility and duty of regulating the practice of medicine pursuant to the laws of the State of Florida, in particular Section 20.42, Florida Statutes, Chapters 120, 455 and 458, Florida Statutes, and the rules promulgated pursuant thereto. Chapter 93-129, Laws of Florida. Respondent, Muhammad S. Mustafa, M.D., is now and was at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0047360. Respondent was licensed by endorsement on October 7, 1985, but did not, ostensibly, actively engage in the practice of medicine in the State of Florida until September 14, 1988. 4/ Respondent's last known address, as of the date of hearing, was 8245 North Nebraska Avenue, Tampa, Florida 33604. Respondent received his medical degree from the Oklahoma University School of Medicine in 1970, performed an internship from 1970 to 1971 at the Altoona Hospital, Altoona, Pennsylvania, did a four-year residency in general surgery from 1971 to 1975 at The Cleveland Clinic, Cleveland, Ohio, and started practice as a sole practitioner in Cleveland, Ohio, in November 1975. Respondent's practice consisted of general surgery and family medicine, and he practiced in a predominately blue collar neighborhood until his license to practice medicine was revoked by the State Medical Board of Ohio, as discussed infra. While practicing in Cleveland, respondent had staff privileges at St. Vincent Charity Hospital, Luthern Medical Center, St. John's Hospital, and St. John's Westshore Medical Center, but by May 1988 had restricted his practice to Luthern Medical Center and St. John's Hospital. Respondent resigned his staff privileges at Luthern Medical Center and St. Johns in December 1989. The Ohio charges On May 11, 1988, the State Medical Board of Ohio, the licensing authority for medicine in the State of Ohio, notified respondent that it proposed to take disciplinary action against his certificate to practice medicine and surgery in Ohio. The gravamen of the Board's charges were as follows: That respondent's prescribing practices with regard to approximately 83 difference patients, as well as his overall prescribing as reflected by a listing entitled "Total Drug Amounts by Drug, Year and Month," constituted: "Failure to use reasonable care discrimination in the administration of drugs" and "failure to employ acceptable scientific methods in the selection of drugs or other modalities for treatment of disease," as those clauses are used in Section 4731.22(B)(2), Ohio Revised Code; "Selling, prescribing, giving away, or administering drugs for other than legal and legitimate therapeutic purposes," as that clause is used in Section 4731.22(B)(3), Ohio Revised Code; and "A departure from, or the failure to conform to, minimal standards of care of similar practitioners under the same or similar circumstances, whether or not actual injury to a patient is established," as that clause is used in Section 4731.22(B)(6), Ohio Revised Code. That as to Patient 152 respondent did between March 27, 1984 and December 12, 1985, and again between November 13, 1986 and April 1, 1987, prescribe controlled substance stimulants when the patient either gained weight or failed to lose weight, contrary to the provisions of Section 4731.22(B)(2), (3) and (6), Ohio Revised Code. The Board further charged that respondent's billing to Patient 152's insurance company for services rendered between March 27, 1984 and December 15, 1986, reflected a diagnosis of "hypertension, obesity, ingrown toenail, nerves, low back pain, and arthritis" when there was no indication in respondent's record that he had treated the patient for any condition other than obesity. Such conduct was alleged to constitute "publishing a false, fraudulent, deceptive or misleading statement," as that clause is used in Section 4731.22(B)(5), Ohio Revised Code, and the "obtaining of, or attempting to obtain money or anything of value by fraudulent misrepresentation in the course of practice," as that clause is defined in Section 4731.22(B)(8), Ohio Revised Code. That as to Patient 151 respondent did between February 21, 1979 and April 17, 1986, and again between November 13, 1986 and April 1, 1987, prescribe controlled substances and stimulants when the patient either gained weight or failed to lose weight, contrary to Section 4731.22(B)(2), (3) and (6), Ohio Revised Code. The Board further alleged that on respondent's billing to Patient 151's insurance company for services rendered between January 10, 1984 and November 13, 1986, the diagnosis of "menopause; arthritis; glossitis; bronchitis; hypertension; nerves; and chest wall pain" were entered when the majority of services rendered by respondent were for "obesity," a diagnosis not listed, and his records contain no indication that she was being treated for hypertension, nerves or arthritis. Moreover, an EKG and "comprehensive office exam" performed on November 13, 1986 and billed under a diagnosis of "chest wall pain" were in fact performed as part of the physical required prior to starting the diet program. Such conduct was alleged to violate Section 4731.22(B)(5) and (8), Ohio Revised Code. That respondent's reports and billing to two different attorneys with regard to Patient 140 (who had been involved in accidents in June and November 1985) reflected dates of service and patient complaints which were not reflected in the medical records. Such conduct was alleged to violate Section 4731.22(B)(5) and (8), Ohio Revised Code. That respondent prescribed controlled substances for Patient 241 in 1979, 1982 and 1983 through 1985 contrary to Section 4731.22(B)(2), (3) and (6), Ohio Revised Code, in that the patient had admitted to respondent in 1979 that he was addicted to Codeine and in 1985 that he was addicted to Percocet. Respondent was alleged to have first prescribed Percocet in 1983, upon the patient's complaint of back pain, without noting any physical exam or findings, and had continued prescribing it on a regular basis well into 1985. His prescribing of Codeine-based medications and Percocet continued after the patient's admission of addiction to those substances. Finally, citing 13 different patients as examples, the Board alleged that respondent routinely kept inadequate patient records which did not reflect examinations performed or physical findings made to justify the medications prescribed or dispensed; prescribed controlled substances and dangerous drugs based upon patient requests for medications or patient complaints, often without utilizing appropriate testing or other methods for evaluating the validity or etiology of the complaints; and routinely prescribed controlled substance stimulants for weight loss over extended periods of time without regard to whether or not the patient demonstrated weight loss. Such conduct was alleged to violate Section 4731.22(B)(2), (3) and (6), Ohio Revised Code. Moreover, respondent's acts or omissions with regard to certain prescriptions written on or after November 17, 1986, for patients 25, 34, 130, 166, 265, and 276, were alleged to constitute violations of Rules 4731-11-02 and/or 4731-11-04, Ohio Administrative Code, and therefore Section 4731.22(B)(20), Ohio Revised Code. The aforesaid notice of charges dated May 11, 1988, advised respondent of his right to request a hearing on the matter, his right to appear at such hearing in person or through his attorney, to present his position and argument, and to present evidence and examine witnesses appearing for or against him. Respondent timely requested such hearing, and was represented by counsel. The subject charges were heard before Wanita J. Sage, Esquire, Hearing Examiner for the State Medical Board of Ohio, on September 18, 1988. Thereafter, the Hearing Examiner rendered an extensive recommendation, which contained findings of fact, conclusions and an order. Such findings of fact sustained the charges filed against respondent, and are contained in petitioner's exhibit 2. The recommendation, which summarized the factual findings, concluded: The acts, conduct, and/or omissions of Muhammad S. Mustafa, M.D., as set forth in the above Findings of Fact, constitute: "Failure to use reasonable care discrimination in the administration of drugs" and "failure to employ acceptable scientific methods in the selection of drugs or other modalities for treatment of disease", as those clauses are used in Section 4731.22(B)(2), Ohio Revised Code; "Selling, prescribing, giving away, or administering drugs for other than legal and legitimate therapeutic purposes", as that clause is used in Section 4731.22(B)(3), Ohio Revised Code; and/or "A departure from, or the failure to conform to, minimal standards of care of similar practitioners under the same or similar circumstances, whether or not actual injury to a patient is established", as that clause is used in Section 4731.22(B)(6), Ohio Revised Code. The testimony and evidence presented in this Matter amply establish that Dr. Mustafa, in the routine course of his practice, prescribed controlled substances and dangerous drugs for patients for excessive periods of time, without establishing valid medical indication or diagnosis. He prescribed potentially addictive controlled substances, often in dangerous combinations, for patients for years without adequately evaluating their complaints or attempting alternative therapies. In the case of Patient 241, Dr. Mustafa admitted that he had prescribed Codeine for this patient for a period of over one month in 1979 as treatment for his admitted Codeine addiction. Several years later, Dr. Mustafa began prescribing Percocet upon this same patient's complaint of back pain, without any evidence of evaluation, and continued to do so over a two-year period. When Patient 241 then admitted that he was addicted to Percocet, Dr. Mustafa continued to prescribe it for three addi- tional months as treatment for his addiction. Such prescribing contravenes both federal and state laws, including each of those provisions listed above. Dr. Mustafa's claim that there was no adequate treatment program available in 1979 does not satisfactorily explain his prescribing for Patient 241's addiction in 1985. The patient records clearly demonstrate Dr. Mustafa's willingness to prescribe whatever patients requested, even when objective data indicated that there was no valid medical indication for such drugs and no medical basis for the patients' complaints. In the case of Patient 36, Dr. Mustafa liberally prescribed synthetic thyroid hormone at her request, despite the fact that he had obtained tests showing her thyroid levels to be normal. He provided this same patient with narcotic pain medications, even when her complaints of pain were apparently related to urinary tract infections, menstrual cramps, or other conditions which would not appear to justify the use of controlled substances. In the case of Patient 308, Dr. Mustafa prescribed combinations of controlled substances and dangerous drugs, including narcotic analgesics, tranquilizers, hypnotics, barbiturates, antipsychotics, tricyclic antidepressants, and stimulants, even though he was aware that her complaints generally [had] no physical cause, but rather stemmed from emotional problems. On one occasion, he actually telephoned in a prescription for Compazine for Patient 308 when she was in the hospital under the care of another physician for treatment of a drug overdose. Even though Dr. Mustafa was admittedly aware that she had been hospitalized on three occasions due to drug overdoses, he continued afterwards to prescribe dangerous combinations of drugs for her, including the substances on which she had overdosed. In the case of Patient 130, Dr. Mustafa regularly prescribed and administered large amounts of narcotic analgesics over an approximately four year period. Dr. Mustafa admitted that Patient 130 was chemically dependent on narcotics, but claimed they were necessary to control his back pain. Yet, the patient record clearly indicates that Dr. Mustafa made no effort to independently evaluate or diagnose, but rather relied solely upon this patient's representations as justi- fication for his inappropriate prescribing in response to this patient's requests for addictive drugs. Furthermore, the patient record indicates that Dr. Mustafa abruptly discontinued prescribing pain medications and tranquilizers for Patient 130 in early 1987. In general, the patient records demonstrate lack of independent evaluations by Dr. Mustafa of patients' complaints of pain, for treatment of which he prescribed large amounts of controlled medications for excessive periods of time. Such prescribing violates each of the above provisions of law. Further, the patient records of Patients 152, 151, 25, 26, 36, 218, 236 and 265 support the State's allegations that Dr. Mustafa routinely prescribed controlled substance stimulants for weight loss purposes over extended periods of time, whether or not a patient demonstrated weight loss. Dr. Mustafa admitted that it had been his standard practice to prescribe a controlled substance anorectic upon a diet patient's initial visit, without first attempting to achieve weight loss through other means, such as diet or nutritional counseling. In addition, Dr. Mustafa often prescribed Lasix, a diuretic, for weight control purposes. As indicated by the testimony of Dr. Junglas, there is no valid medical indication for the use of a diuretic for weight loss. Such pre- scribing of diet medications also violates each of the above provisions of law. Certainly, both the patient records and the testimony of Dr. Mustafa support the Board's allegations that Dr. Mustafa, in the routine course of his practice, kept inadequate patient records which did not reflect examinations performed or physical findings made to justify the medications he prescribed or dispensed to his patients. Although Dr. Mustafa appeared to claim that he had done examinations or made physical findings which justified the medications he prescribed, he stated that he simply didn't have time to write down everything he knew about his patients. The patient records generally reflect only patient requests for refills of medications, non-specific patient complaints, and lists of drugs prescribed or administered by Dr. Mustafa. They are generally devoid of evidence of appropriate diagnostic testing; documentation as to the nature or severity of the patient's reported pain, illness, or injury; evidence of investigation of alter- native therapies; thorough histories, physical examinations, and diagnoses; in short, infor- mation necessary to assure that the patient receives appropriate treatment. Such records evidence Dr. Mustafa's violations of each of the above provisions of law. As indicated by the testimony of Dr. Donald Junglas, Dr. Mustafa's treatment with regard to each of the 17 patients whose records were reviewed at hearing violates each of the above provisions of law. Further, the prescriptions identified as State's Exhibits #6A through #6H and summarized by the "Prescription List by Patient Number" and the listing of "Total Drug Amounts by Drug, Year, and Month" (State's Exhibit #1) indicate that Dr. Mustafa's inappropriate, long-term prescribing of controlled substances was not confined to those 17 patients, but rather was common in his practice. Dr. Mustafa's prescribing of controlled substances for weight reduction for Patients 152 and 151 after November 17, 1986, constitutes "violating . . ., directly or indirectly, . . . any provisions of this chapter or any rule promulgated by the Board", as that clause is used in Section 4731.22(B)(20), Ohio Revised Code, to wit: Rule 4731-11-04, Ohio Adminis- trative Code, as in effect on and after November 17, 1986. Rule 4731-11-04(B) requires that a physician's use of controlled substances for purposes of weight reduction in the treatment of obesity be only as an adjunct in a regimen of weight reduction based on caloric restriction. It further requires the physician to determine, before instituting treatment with a controlled substance, that the patient has made a "substantial good-faith effort to lose weight in a treatment program utilizing a regimen of weight reduction based on caloric restriction, nutritional counseling, behavior modification, and exercise, without the utilization of controlled substances, and that said treatment has been ineffective. Further, the physician must obtain a thorough history, perform a thorough physical examination, and rule out the existence of any recognized contradictions to the use of the controlled substance. Further, according to this rule, the physician may not initiate or must discontinue utilizing controlled substances immediately upon determin- ing that the patient has failed to lose weight while under treatment with a controlled substance over a period of 14 days, such determination to be made by weighing the patient at least every fourteenth day. Dr. Mustafa's prescribing of Schedule IV anorectics for Patients 152 and failed to meet these requirements. Patient testified that he had never tried dieting before seeing Dr. Mustafa. Dr. Mustafa's lecturing Patient 152 about snacking does not constitute the institution of a regimen of weight reduction based on caloric restriction. The documentation in the patient records, parti- cularly in the case of Patient 151, fails even to establish that these patients' overweight constituted obesity which might have justified the use of a controlled substance in the event that other treatment methods had been proven ineffective. Further, Dr. Mustafa failed to discontinue prescribing Schedule IV anorectics for Patients 152 and 151 when they failed to lose weight, as required by Rule 4731-11-04(B). In fact, although Dr. Mustafa admittedly become aware of this Rule in December, 1986, he prescribed Schedule IV anorectics for Patient 152 when he demonstrated weight gains on February 5, March 5, and April 1, 1987, and he prescribed Schedule IV anorectics for Patient 151 when she demonstrated failure to lose weight on January 9, February 5, and March 5, 1987. Pursuant to Rule 4731-11-04(C), Ohio Adminis- trative Code, Dr. Mustafa's violations of Rule 4731-11-04(B) also violate Sections 4731.22(B)(2), (B)(3), and (B)(6), Ohio Revised Code. Further, Dr. Mustafa's prescribing for Patients 25, 34, 130, 166, 265, and 276, on and after November 17, 1986, constitutes "violating . . ., directly or indirectly . . . any provisions of this chapter or any rule promulgated by the Board", as that clause is used in Section 4731.22(B)(20), Ohio Revised Code, to wit: Rules 4731-11-02 and/ or 4731-11-04, Ohio Administrative Code, as in effect on and after November 17, 1986. With respect to patient 25, Dr. Mustafa violated Rule 4731-11-04(B) by prescribing the Schedule IV controlled substance Fasin 30 mg. for purposes of weight reduction on both December 19, 1986, and February 13, 1987, without: instituting a regimen of weight reduction based upon caloric restriction, first determining the ineffectiveness of other methods of weight reduction, or determining whether or not she failed to lose weight by weighing her at least every fourteenth day. Further, Dr. Mustafa violated Rule 4731-11-02(D) by telephoning in a prescription for 30 Tranxene 7.5 mg., a Schedule IV anxiolytic, for Patient 25 on April 2, 1987, without documenting any exam- ination, evaluation, diagnosis, or purpose for this controlled substance. On seven occasions from November 19, 1986, through April 29, 1987, Dr. Mustafa prescribed Vicodin, a Schedule III narcotic analgesic, for Patient 34 without documenting any examination, evaluation, diagnosis, or purpose for his use of this addictive controlled substance. In fact, four of these prescriptions were issued after Dr. Mustafa had discussed with Patient 34 the addictiveness of Vicodin and the need for him to take less of it. Such acts and omissions violate both paragraph (C) and (D) of Rule 4731-11-02. Dr. Mustafa's acts and omissions with regard to Patient 130 also constitute violations of both paragraphs (C) and (D) of Rule 4731-11-02. Without documenting any examination, evaluation, diagnosis, or purpose other than the patient's requests for pain medication, Dr. Mustafa administered IM injections of Demorel 100 mg., a Schedule II narcotic analgesic, to Patient 130 on December 13, 1986, January 6, 1987, and April 7, 1987. In addition to the Demerol injection, he also prescribed 100 Tylenol #4, a Schedule III narcotic analgesic, for this patient on April 7, 1987, solely upon Patient 130's request for pain medications for vacation. Dr. Mustafa had previously notified this patient on January 12 that he would prescribe no more tranquilizers or pain medications for him. Dr. Mustafa admitted at hearing that this patient had been chemically dependent upon narcotics, though he claimed that he had needed them to control his pain. Upon Patient 166's request, without document- ing any examination, evaluation, diagnosis, or purpose, Dr. Mustafa prescribed for her 100 Vicodin, a Schedule III narcotic analgesic, on December 24, 1986, and 50 Vicodin on January 29 and again on April 23, 1987. Such acts violate Rule 4731-11-02(D). With respect to Patient 265, Dr. Mustafa initiated treatment with Adipex-P, a Schedule IV stimulant anorectic controlled substance, on December 9, 1986, without first determining the effectiveness of other methods of weight reduction, without instituting a regimen of weight reduction based on caloric restriction, and without obtaining a thorough history or performing a thorough physical examination to rule out the existence of any contradiction. Dr. Mustafa continued to prescribe Apidex-P through April 31, 1987, without weighing Patient 265 at least every fourteenth day and without immediately discontinuing such treatment when this patient showed a weight gain on February 10, 1987. Such acts and omissions violate Rule 4731-11-04(B). Furthermore, from December 9, 1986, through May 11, 1987, Dr. Mustafa prescribed Valium for her on three occasions, two of which prescriptions he telephoned in. On five occasions during this period, he prescribed Darvon Compound 65 for her, including one occasion when Patient 265 indicated that she had 30 tablets left from a previous prescription, two occasions where Dr. Mustafa provided her with postdated prescriptions, and one occasion where he telephoned in a prescription. At no time did Dr. Mustafa document any examination, evaluation, diagnosis, or purpose other than the patient's stated complaint, for his prescribing of these controlled substances. Such acts and omissions constitute violation of both paragraphs (C) and (D) of Rule 4731-11-02. In an approximately five month period from November 17, 1986, through April 28, 1987, Dr. Mustafa prescribed for or administered to Patient 276 a total of 519 dosage units of controlled substances, including: 25 Demerol 50 mg., a Schedule II narcotic analgesic; 2 IM injections of Demerol 50 mg.; 2 IM injections of Demerol 75 mg.; 60 Fiorinal, a Schedule III barbiturate analgesic; and 430 Darvocet N-100, a Schedule IV narcotic analgesic. Of these, 230 dosage units were prescribed by telephone. Throughout this period, Dr. Mustafa failed to document examination, evaluation, diagnosis, or purpose for this prescribing other than patient requests and complaints. On one occasion, he did note a physical finding of severe pain and tenderness in the back, radiating downward; however, no further evaluation was done and no diagnosis was indicated. On another occasion, Dr. Mustafa noted a diagnosis of severe migraine headache, but failed to state any information upon which that diagnosis was based. In view of the addictiveness and volume of the substances so prescribed, it is concluded that Dr. Mustafa's acts and omissions with regard to Patient 276 constitute violations of both paragraphs (C) and (D) of Rule 4731-11-02. Pursuant to Rule 4731-11-04(C), Ohio Administ- rative Code, Dr. Mustafa's violations of Rule 4731-11-04(B) also violate Sections 4731.22(B)(2), (B)(3), and (B)(6), Ohio Revised Code. Pursuant to Rule 4731-11-02(F), Ohio Adminis- trative Code, Dr. Mustafa's violations of Rule 4731-11-02(C) and (D) also violate Sections 4731.22(B)(2) and (B)(6), Ohio Revised Code. Further, in view of the nature and/or amounts of the drugs prescribed and the circumstances with regard to such prescribing, Dr. Mustafa's acts and omissions with regard to Patients 130, 265, and 276 are found to constitute purposeful, knowing, or reckless violations of paragraph (C), and thus, pursuant to paragraph (F), also violate Section 4731.22(B)(3), Ohio Revised Code. Dr. Mustafa's acts, conduct, and/or omissions, as set forth in Findings of Fact #7 and #13, above, constitute: "Publishing a false, fraudulent, deceptive, or misleading statement", as that clause is used in Section 4731.22(B)(5), Ohio Revised Code; and "The obtaining of, or attempting to obtain, money or anything of value by fraudulent misrepresentations in the course of practice", as that clause is used in Section 4731.22(B)(8), Ohio Reviewed Code. Claim forms submitted by Dr. Mustafa or his office staff to insurers for reimbursement for Dr. Mustafa's services for both Patient 152 and Patient 151 reported diagnoses for which he had not treated those patients. The fact that diagnoses appeared on claim forms, but not in the patient records, cannot be attributed merely to Dr. Mustafa's poor documentation. Although Dr. Mustafa's patient records clearly indicate that the EKG's done in November, 1986, were part of physical examinations for initiation of diet programs, these EKG's were claimed under diagnoses of hypertension for Patient 152 and chest wall pain for Patient 151. In fact, the "Weight Reduction Program" form contained in Patient 152's file indicates that he had no history of hypertension or heart disease. It must be concluded that false diagnoses were reported for purposes of obtaining reimbursement from the insurer for performance of these routine tests. Although not included in the Board's allegations, it is noted that a similar billing was submitted on behalf of another patient reviewed in this Matter, Patient 25 (See Finding of Fact #19). Although Dr. Mustafa denied knowledge of or responsibility for these false billings, copies of the claims, many of which were signed by Dr. Mustafa, were made a part of the patients' records. Furthermore, contrary to Dr. Mustafa's contentions, he is responsible for the billing procedures of his office. It must be concluded that Dr. Mustafa knew or should have known of the fraudulent billings submitted on behalf of Patients 152 and 151. Further, Dr. Mustafa's acts, conduct, and/or omissions, as set forth in Findings of fact #15 and #16, above, constitute: "Publishing a false, fraudulent, deceptive or misleading statement", as that clause is used in Section 4731.22(B)(5), Ohio Revised Code; and "The obtaining of, or attempting to obtain, money or anything of value by fraudulent misrepresentations in the course of practice", as that clause is used in Section 4731.22(B)(8), Ohio Revised Code. Dr. Mustafa submitted billings and reports of Patient 140's attorneys, listing dates of service and fees not reflected in the patient record. In addition, he billed both attorneys for a January 28, 1986, office visit. Dr. Mustafa's attempts to explain these discrepancies are not convincing. The reports to the attorneys listed no specific treatments or medications for the dates reported; thus, they could not be adequate substitutes for clinical notes which Dr. Mustafa claimed to have recorded on separate cards. Further, Dr. Mustafa claimed that he had made clinical notes on cards, later discarded, because Patient 140 had come to his home, rather than to his office, for treatment; yet he had earlier testified that his office was in his home (Tr. at 41). Also, Dr. Mustafa's attempt to blame his receptionist for the double billing of the January 28, 1986, visit is not well taken. Dr. Mustafa signed the reports submitted to both attorneys and was responsible for their accuracy. It is evident that the billings submitted to Patient 140's attorneys for reimbursement for professional services fraudulently misrepresented the extent of and fees for Dr. Mustafa's services. Although not part of the Board's charges, it is further noted that the patient record for Patient 166 contains a billing submitted to an attorney which contains both dates of service and fees which are not reflected in the patient record (see Finding of fact #31). * * * * * The testimony and evidence in this Matter sub- stantially shows that Dr. Mustafa, in the routine course of his practice, engaged in inappropriate, indiscriminate prescribing of controlled substances and dangerous drugs. The patient records evidence his willingness to prescribe at the patient's request, without regard for medical indications or patient welfare. In at least one case, he admittedly prescribed narcotics to a known addict for an inappropriate period of time without referring him to an authorized treatment program. Both the State's exhibits and the testimony of its expert, Dr. Junglas, rob Dr. Mustafa's claim, that his prescribing was in accordance with acceptable community standards for the time, of credence. Dr. Mustafa admitted that he had ignored the warnings of drug manufacturers and FDA labeling with regard to his long-term prescribing of controlled substances, relying on information he claimed to have obtained from his colleagues. At best, Dr. Mustafa's prescribing practices reflect a willful ignorance of the properties and effects of drugs. Neither willful ignorance nor the lack of moral character demonstrated by Dr. Mustafa's fraudulent billings would seem to be remediable. PROPOSED ORDER It is hereby ORDERED that the certificate of Muhammad S. Mustafa, M.D., to practice medicine and surgery in the State of Ohio shall be and is hereby REVOKED. This Order shall become effective thirty (30) days from the date of mailing of notification of approval by the State Medical Board of Ohio, except that Dr. Mustafa shall immediately surrender his United States Drug Enforcement Administration certificate and shall not order, purchase, prescribe, dispense, administer, or possess any controlled substances, except for those prescribed for his personal use by another so authorized by law. Further, in the interim, Dr. Mustafa shall not undertake treatment of any individual not already under his care. Wanita J. Sage Attorney Hearing Examiner The Hearing Examiner's proposed findings of fact, conclusions and order were adopted by the State Medical Board of Ohio on December 6, 1989. Respondent appealed the Board's order through the courts and on May 4, 1992, the Ohio Supreme Court refused respondent's request that it take jurisdiction of the case. Consequently, the order of the State Medical Board of Ohio revoking respondent's license to practice medicine became effective June 15, 1992. Other matters At hearing, respondent offered the opinion of Adnan E. Mourany, M.D., Soundiah Selvaraj, M.D., and Marcello Mellino, M.D., by way of deposition (Respondent's exhibits 9-11), concerning respondent's reputation as a physician. Dr. Mourany is licensed to practice medicine in the State of Ohio, as well as Indiana, Minnesota and New York, and has practiced since 1986. He is Chairman of Surgery and Chief of Otolarynology at St. John's Westshore Hospital, and has known respondent professionally and personally since 1979. Dr. Selvaraj is licensed to practice medicine in the State of Ohio, and has practiced since 1974. he is Chief of Internal Medicine and Ambulatory Care at the Luthern Medical Center, and has known respondent professionally since 1976. Dr. Mellino is licensed to practice medicine in Ohio, and has practiced for 13 years. He is a cardiologist, and has known respondent professionally since 1978. It was the opinions of Doctors Mourany, Selvaraj and Mellino that respondent was an excellent surgeon who enjoyed a reputation as a good physician. 5/ At hearing, respondent also presented proof that during medical school he received an award from the Governor of Oklahoma for having performed volunteer work with charitable organizations, and that during his practice in Cleveland he received a ten-year service award from Luthern Medical Center and an award from the United States Senate recognizing his volunteer work for the Cleveland Foundation. Respondent also participated in two projects in Cleveland, one in 1983 and one in 1987, to treat patients without charge. All such activities predated the charges filed by the Ohio Board of Medicine. Since revocation of his Ohio license, respondent attended three courses of continuing medical education programs. The first, "Medical Malpractice and Risk Management--1993," was apparently completed in October 1993; the second, "AIDS and Florida Law--1993," was apparently completed in October 1993; and the third, "Surgical Education and Self-Assessment Program," was apparently completed in November 1993. Other than having attended such courses, respondent's activities since the revocation of his Ohio license do not appear of record.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking respondent's license to practice medicine in the State of Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of September 1994. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of September 1994.
The Issue The issues for determination in this Hearing are whether the Respondent has violated the provisions of Chapter 461, Florida Statutes, as alleged in the Amended Administrative Complaint and, if so, what discipline, if any, is appropriate. FINDINGS OF FACT 1/ The Board of Podiatric Medicine is the State agency governing the practice of podiatry in the State of Florida. Respondent, Dode A. Hoskins, D.P.M., is and has been at all times material to the allegations in the Amended Administrative Complaint, a licensed physician in the state of Florida, having been issued license number PO-0001072. PATIENT SCHELLENBERG - DPR CASE NO. 0080076 On or about July 22, 1986, Respondent treated a patient, J. Schellenberg, for an ingrown toenail on the right foot. Respondent billed for the following services: Consultation; X-rays, right foot, three views; X-rays, left foot, three views; Three preoperative vascular flow studies; Excision of nail and matrix lateral aspect; Excision of nail and matrix medical aspect; Injection of peripheral nerve; and Sterile surgical tray. The following services were not necessary nor indicated in regard to this patient's condition; The X-rays of the left foot; The preoperative vascular flow studies. Respondent has exercised influence on the patient Schellenberg in such a manner as to exploit the patient for financial gain of the Respondent. By performing services on the patient Schellenberg which were not necessary nor indicated, Respondent failed to practice podiatric medicine at a level of care, skill and treatment which is recognized by a reasonably prudent podiatrist as being acceptable under similar conditions and circumstances. The records kept by the Respondent fail to justify the preoperative vascular flow studies on the patient Schellenberg and fail to adequately justify the X-rays on the left foot. /2 PATIENT SANDERS - DPR CASE NO. 0085886 On or about, February 20, 1987, the Respondent performed surgery on the patient, Lois Sanders. The Respondent performed the following surgical procedures on patient Sanders: Arthroplasty on fifth toes, left and right feet; Tenotomy and capsolotomy on toes 2 through 5, left and right feet. The Respondent's medical records and x-rays fail to justify the course of treatment on any of toes 2, 3, and 4 of either of Sanders' feet. Although the patient was requested to sign numerous consent forms prior to surgery, the extent and the necessity for surgery on toes 2, 3, and 4 on both feet and the acceptable alternatives and substantial risks and hazards inherent in the procedures were not explained to the patient. Respondent has performed professional services which have not been duly authorized by the patient or her legal representative. The surgery to toes 2, 3, and 4 on both feet was not justified by the patient's condition. By performing surgeries which were unnecessary, the Respondent exercised influence on the patient in such a manner as to exploit the patient for financial gain of the Respondent. In his treatment of Sanders, Respondent failed to practice podiatric medicine at a level of care, skill, and treatment which is recognized by a reasonably prudent podiatrist as being acceptable under similar conditions and circumstances. On or about February 4, 1987, the Respondent had performed on patient Sanders a vascular flow examination. Respondent's medical records do not substantiate the necessity for performing a vascular flow examination on Sanders. By performing a vascular flow study on Sanders, the Respondent has exercised influence on the patient Sanders for financial gain of the Respondent. PATIENT KOSHAR - DPR CASE NO. 0087508 During August of 1986, the patient, Sue Koshar, presented at the offices of the Respondent with a complaint of planters wart on the left foot and ingrown nail on the left foot. Between August 29, 1986, and December 6, 1986, the Respondent performed laser surgery for the treatment of the planters wart on the patient Koshar on four occasions. The Respondent failed to anesthetize the area before performing laser surgery on the first three occasions. The patient's complaints concerning a burning sensation caused the Respondent to stop the surgery on the first three occasions before it was completed. Respondent's medical records: do not reflect the patient's complaints of a burning sensation; do not reflect that the surgery was not completed after the first two visits or that surgery was not completed on the first three visits due to the patient's complaints of a burning sensation; indicate that laser was utilized on two occasions when it was actually utilized on four occasions; indicate that local anesthesia was utilized at the time of the first use of the laser, when in fact local anesthesia was only used at the time of the last laser surgery; and fail to reflect that adequate postoperative care was given to the patient Sue Koshar. Respondent has failed to keep written records justifying the course of treatment of the patient Koshar. The records do not explain why surgery was redone on three occasions, do not explain why no anesthesia was administered on three of the surgeries and do not identify the kind of anesthesia administered on the last surgery or explain why it was used. Respondent has, in regard to patient Koshar, failed to practice Podiatric Medicine at a level of care, skill, and treatment which is recognized by a reasonably prudent podiatrist as being acceptable under similar conditions and circumstances, for the following reasons: Respondent failed to properly anesthetize the patient Koshar at the time of the first three laser surgeries, resulting in multiple painful and unsuccessful procedures; Respondent failed to adequately provide postoperative care to patient Koshar following her surgeries; and Respondent failed to keep medical records necessary to adequately treat the patient's conditions. On or about August 29, 1986, the Respondent performed vascular flow studies on patient Koshar. Respondent's records do not substantiate the necessity for performing vascular flow studies on patient Koshar. Vascular flow studies were not indicated in the diagnosis or treatment of patient Koshar's complaints. Respondent has exercised influence on the patient or client in such a manner as to exploit the patient or client for financial gain of the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: that the licensure of the Respondent be suspended for one year and until such time as Respondent has completed 50 hours of continuing podiatric medical education as designated by the Board (in addition to those hours required for license renewal) and pays a fine in the amount of $10,000.00, and that, upon reinstatement, the license of Respondent be placed in a probationary status for a period of two years under conditions imposed by the Board but including requirements that the Respondent: work only under indirect supervision of another podiatric physician who shall review Respondent's records on a monthly basis; submit quarterly reports to the Board; make annual appearances before the Board; and only perform vascular testing on those patients whose history or physical findings show possible impaired circulation. In addition, Respondent shall only perform vascular testing on those patients whose history or physical findings show possible impaired circulation. DONE AND ENTERED this 28th day of September, 1989, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1989.
