Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Board of Medical Examiners enter a final order dismissing the charges against Dr. Santos on the merits and with prejudice. DONE and ENTERED this 30th day of March 1984, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 30th day of March 1984.
The Issue The issue is whether Petitioner overpaid Respondent for medical services for 20 patients under the Medicaid Program from February 22, 1997, through February 22, 1999, and, if so, by how much.
Findings Of Fact At all material times, Respondent, who is a licensed physician, was authorized to provide medical services to Medicaid recipients, provided medical services to Medicaid recipients, billed Petitioner for these services, and received payment for these services. The Medicaid program provides for periodic audits of each Medicaid provider, after which Petitioner may seek repayment of amounts revealed by audit to have been overpaid to the provider. After conducting such an audit of Respondent for services rendered from February 22, 1997, through February 22, 1998, and exchanging post-audit information, Petitioner informed Respondent, by letter dated March 1, 2002, that it had overpaid him $238,069.09 for claims that were, in whole or in part, not covered by Medicaid, and demanded repayment of this amount. The letter states that the overpayment was extrapolated from the overpayment amount determined from auditing the records of a random sample of 21 patients for whom Respondent had submitted 423 claims. The actual overpayment amount, before extrapolation is $11,248.14. Petitioner later removed one of the patients from the sample due to a billing error. Among the 21 patients covered by the audit, the deleted patient is identified as Patient 20. The age of each patient set forth below is his or her age at the time of the first office visit during the audit period. Where a series of payments are set forth below, they are listed in the order of the procedures discussed immediately above the payments. Patient 1, who was 17 years old first saw Respondent on March 27, 1998. Petitioner allowed payments for Patient 1's first two visits. On March 27, 1998, Respondent performed an abdominal echogram and other services for abdominal pain of three or four months' duration, and, on April 14, 1998, Respondent performed a doppler echocardiograph and other services for chest pain of three or four days' duration. On April 27, 1998, Patient 1 presented at Respondent's office with fever and chills since the previous day. Patient 1 complained of nausea, frequent and painful urination, and pain in the abdomen and lower back. Without first performing a urinalysis or urine culture, Respondent performed a renal echogram April 27, based on his diagnosis of urosepsis and to rule out a urinary tract infection. Renal echography was not medically necessary to rule out a urinary tract infection, at least until Respondent had first performed a urinalysis and urine culture and considered the results from this laboratory work. Respondent's diagnosis of urosepsis lacks any basis in his records. If Patient 1 had suffered from urosepsis, which is a life-threatening condition that requires urgent treatment--not echography--Respondent should have treated the matter as a medical emergency. Petitioner proved that it overpaid $61.57 for this service. Petitioner allowed a payment for medical services, which did not include any echography, on May 4, 1998. On June 1, 1998, Patient 1 presented at Respondent's office complaining of acute abdominal pain for three or four days. Respondent performed a physical examination and detected an enlarged spleen. He then performed an echogram of the spleen and found a normal spleen without inflammation or cyst. Respondent proceeded with the echography without first performing routine blood work, such as a white blood cell count, to detect infection. The echogram of the spleen was not medically necessary, at least until Respondent had performed routine blood work to confirm or rule out infection. However, as noted in the Preliminary Statement, Dr. Hicks has withdrawn his objection to this payment, so Petitioner did not overpay for this service. Petitioner allowed a payment for a medical service on June 5, 1998. On June 19, 1998, Patient 1 presented at Respondent's office complaining of weakness, fainting, dizziness, fatigue, palpitations, shortness of breath, heartburn, rectal discomfort, and skin rash. After performing a physical examination, Respondent suspected hypothyroidism and performed a thyroid echogram, which revealed a normal thyroid. Again, thyroid echography is not medically necessary without first performing routine laboratory tests of thyroid function. Petitioner proved that it overpaid $45.24 for this service. On August 3, 1998, Patient 1 presented at Respondent's office complaining of weakness in his arms and hands of three to four weeks' duration. A physical examination revealed that Patient 1's grip was weak and his wrists painful upon pressure. Suspecting carpal compression, Respondent conducted three types of nerve conduction velocity tests (NCV), including an H-Reflex test, all of which test nerve function. Patient 1 had a psychiatric diagnosis, as Respondent was aware at the time of this office visit. Before conducting the NCV, Respondent contacted Patient 1's psychiatrist and obtained her approval of the test. Also, before conducting the NCVs, Respondent obtained blood work, so as to determine the blood levels of the psychotropic medications that Patient 1 was taking. Petitioner failed to prove that it overpaid for these services. Patient 1 visited Respondent's office on August 7, August 25, September 16, and October 30, 1998, but Petitioner is not disallowing any of these payments. On November 23, 1998, Patient 1 presented at Respondent's office complaining of pain in his right ankle after tripping and falling the previous day. Respondent conducted a physical examination and found mild swelling, applied an elastic bandage, prescribed Motrin and physical therapy for three weeks, and ordered an X ray. Petitioner claims that Respondent misbilled the procedure. Respondent billed a 73000, which is a procedure under the Current Procedure Terminology manual (CPT), and Petitioner claims that the correct CPT code is 73600, which would generate an overpayment of 59¢. However, as noted in the Preliminary Statement, the evidence fails to support this claim by Petitioner, so Petitioner failed to prove that it overpaid for this service. Patient 2, who was a 57 years old, had seen Respondent for three years. Patient 2 visits the office "constantly," according to Respondent. Petitioner has disallowed payments for services rendered on March 2, March 31, April 28, June 1, August 17, August 28, September 24, October 2, November 3, November 9, December 1, and December 21, 1998, and January 8, 1999. However, as noted in the Preliminary Statement, Dr. Hicks has withdrawn his objection to the aerosol treatment on August 17 and the level of service of the office visit on August 28. On March 2, 1998, Patient 2 presented at Respondent's office with acute onset the previous day of left flank pain, now radiating to the left lumbar and genital areas. Patient 2 denied passing any stones in his urine, although he complained of frequency and pain of urination. Respondent found Patient 2's abdomen distended and liver enlarged. He performed a renal echogram to rule out kidney stones or urinary retention. The results were normal. Respondent's testimony failed to establish the medical necessity of this renal echography. The symptoms are too nonspecific to justify this diagnostic procedure at this time, so Petitioner proved that it overpaid $61.57 for this service. On March 31, 1998, Patient 2 presented at Respondent's office with complaints of leg pain and cramps at night, which arose after walking a block and alleviated with rest. Diagnosing this obese patient with peripheral vascular disease, Respondent performed doppler procedures of the lower extremity veins and arteries. The results revealed mild atheromatous changes in the lower extremities. Petitioner failed to prove that the two procedures billed by Respondent for the March 31 office visit were medically unnecessary, so Petitioner failed to prove that it overpaid for these services. On April 28, 1998, Patient 2 presented at Respondent's office with nausea of three or four days' duration, vomiting associated with indigestion, fatty food intolerance, flatulence, and bitter taste. Patient 2, whom Respondent presumed was alcoholic, had an enlarged liver, as Respondent had noted in previous examinations of Patient 2. Respondent performed a liver echogram, after ordering a laboratory report on January 29, 1998. The results confirmed the presence of liver echogenicity or fatty liver. 26. Petitioner failed to prove that this echography was not medically necessary, so Petitioner failed to prove that it overpaid for this service. On June 1, 1998, Patient 2 presented at Respondent's office with complaints of pain on urination, increased frequency of urination, the need to urinate at night, and chills. Respondent performed an echogram of the prostate to rule out cancer; however, Respondent's records did not disclose any laboratory test, which is more appropriate for detecting prostate cancer. Respondent's testimony establishes that this echogram was not medically necessary, so Petitioner proved that it overpaid $51.34 for this service. On September 24, 1998, Patient 2 presented at Respondent's office with a complaint of low back pain after slipping and falling down three days earlier. Respondent performed three NCVs, including an H-Reflex test. Respondent's notes state an intention to do X rays, although the records fail to reveal whether X rays were ever done. Petitioner failed to prove that the three NCV tests were not medically necessary. Petitioner also downcoded the office visit on this date, but, as noted in the Preliminary Statement, due to the failure to produce a CPT manual, Petitioner failed to prove that it overpaid $10.74 for this service. On October 2, 1998, Patient 2 presented at Respondent's office with a complaint of shortness of breath. Respondent administered an aerosol with Ventolin, which is a drug used to combat asthma. This is the same aerosol that Dr. Hicks decided to allow on August 17 upon further review, and the medical necessity for this aerosol is the same as the earlier aerosol, so Petitioner failed to prove that it overpaid $10.62 for this service. On November 3, 1998, Patient 2 presented at Respondent's office with complaints of malaise, fatigue, weakness, and weight gain. Respondent performed a thyroid echogram in connection with a diagnosis of hypothyroidism, and the test results were normal. Patient 2, who suffered from chronic obstructive pulmonary disease (COPD), had not actually gained weight over 1998. Without the results of other tests of thyroid function, a test to measure the size of the thyroid was not medically necessary, so Petitioner proved that it overpaid $45.24 for this service. On November 9, 1998, Patient 2 presented at Respondent's office with complaints of continuing chest pain and palpitations. Respondent had seen Patient 2 three days earlier for the same complaints and performed an electrocardiogram, whose results were abnormal, although not acute. Based on this test, Respondent had referred Patient 2 to a cardiologist. Given the proper referral of Patient 2 to a cardiologist, the ensuing doppler echocardiogram was not medically necessary. The record is devoid of any evidence that Respondent could adequately care for the cardiac condition suffered by Patient 2, so this diagnostic service performed no useful function. Petitioner proved that it overpaid $117.23 and $51.34 for these services. On December 1, 1998, Patient 2 presented at Respondent's office with chest congestion and cough, with some shortness of breath, of three days' duration. Respondent administered an aerosol with medications to treat Patient 2's bronchial asthma and COPD by functioning as a bronchodilator. This treatment was preceded by a spirometry, which tests respiratory function. Petitioner failed to prove that either the diagnostic or therapeutic service provided by Respondent on December 1 was not medically necessary. On December 21, 1998, Patient 2 presented at Respondent's office with the same complaints from his visit nearly three weeks earlier. Respondent performed two duplex scans of the lower extremities to check his circulatory state, These scans were not medically necessary. Although Patient 2 was also complaining of a slow progression of leg pain and cramps, Respondent had performed a diagnostic procedure for these identical symptoms nine months earlier. The absence of any recorded treatment plan in the interim strongly suggests that diagnostic echography is displacing actual treatment. Respondent also performed another spirometry, less than three weeks after the prior spirometry. There was no medical necessity for this second procedure because Patient 2's symptoms and complaints had remained unchanged. Petitioner proved that it overpaid $97.96, $72.39, and $15.70 for these services. On January 8, 1999, Patient 2 presented at Respondent's office, again with respiratory complaints. Respondent claims to have administered a maximum breathing test, but he submitted no documentation of such a test to Petitioner, so Petitioner has proved that it overpaid $9.82 for this service. Patient 3, who was 13 years old, saw Respondent only one time--April 28, 1998. On this date, she presented at Respondent's office with menstrual complaints, abdominal pain, anxiety, and urinary disorders in terms of frequency and urgency. After performing a physical examination (limited as to the pelvic area due to the demands and cultural expectations of the patient and her family) and ordering blood work, Respondent performed pelvic and renal echograms, choosing not to subject the patient to X rays due to her young age. When Respondent later received the blood work, he found evidence supporting a diagnosis of a urinary tract infection. Although the menstrual history should have been developed in the records, the pelvic echogram could have uncovered an ovarian cyst, and legitimate reason existed to avoid an X ray and an extensive pelvic examination. However, the renal echogram was not medically necessary. The proper means of diagnosing a urinary tract infection is the blood work that Respondent ordered. The records mention the possibility of kidney stones, but this condition did not require ruling out based on the complaints of the patient, findings of the physical examination, and unlikelihood of this condition in so young a patient. Petitioner proved that it overpaid $61.57 for the renal echogram, but failed to prove that it overpaid for the pelvic echogram. Patient 4, who was eight years old, first saw Respondent on November 11, 1998. Patient 4 presented with a fever of two days' duration, moderate cough, and runny nose. His grandmother suffered from asthma, but nothing suggests that Patient 4 had been diagnosed with asthma. After conducting a physical examination and taking a history, Respondent diagnosed Patient 4 as suffering from acute tonsillitis, allergic rhinitis, bronchitis, and a cough. Apparently, Respondent misbilled Petitioner for an aerosol treatment because Respondent testified, and his records disclose, that no aerosol was administered, so Petitioner proved that it overpaid $10.62 for this service. Respondent administered a spirometry, which he justified on the basis of the grandmother's asthma. Although the results of the spirometry indicated pulmonary impairment, the test was not medically necessary, given the history and results of the physical examination, so Petitioner proved that it overpaid $32.06 for this service. On February 15, 1999, Patient 4 presented at Respondent's office with a fever of two days' duration, moderate cough, and clear nasal discharge. Again, Respondent administered a spirometry, which again revealed pulmonary impairment, and, again, the test was not medically necessary. Again, Respondent displayed a fondness for diagnostic procedures that yielded no plan of treatment. Petitioner proved that it overpaid $16.94 for this service. Patient 5, who was 61 years old, presented at Respondent's office with a history of weekly visits, as well as osteoarthritis and high blood pressure. On March 26, 1998, Patient 5 presented at Respondent's office with a complaint of left hip pain of three days' duration, but not associated with any trauma. She also reported dizziness and occasional loss of consciousness after faintness. Patient 5 noted that her neck swelled three or four months ago. Respondent billed for two views of the hip, but nothing in his records indicates more than a single view, so Petitioner proved that it overpaid Respondent $6.68 for this aspect of the X-ray service. Respondent also performed a duplex scan of the carotid artery. The scan, which was justified due to Patient 5's dizziness, faintness, and loss of consciousness, revealed atherosclerotic changes of the carotid arteries, so Petitioner failed to prove that it overpaid for this service. On April 9, 1998, Patient 5 presented at Respondent's office with complaints of left flank pain, nasal stuffiness, headaches, and urinary incontinence on exertion. Interestingly, the report from the thyroid echogram, which was performed on the March 26 office visit and allowed by Petitioner, revealed an enlargement and solid mass at the right lobe, but Respondent's records contain no conclusions, diagnosis, or treatment plan for this condition, focusing instead on cold and other minor symptoms described above. Respondent performed kidney and bladder echograms, to rule out stones, cysts, or masses, and a sinus X ray. However, he did not first perform a urinalysis--instead ordering it simultaneously--to gain a better focus on Patient 5's condition, but his records contain no indication of the results of this important test. Petitioner proved that it overpaid $61.57 and $39.73 for the renal and bladder echograms, both of which were normal, although the left kidney revealed some fatty tissue. Although the results were normal, the sinus X ray was medically necessary, so Petitioner failed to prove that it overpaid for this service. On May 13, 1998, Patient 5 presented at Respondent's office with a complaint of chest congestion, "chronic" cough (despite no prior indication of a cough in Respondent's records), and shortness of breath of two or three days' duration. Respondent administered a spirometry. Respondent justified this test, in part, on Patient 5's "acute exacerbation of COPD," but Respondent's records reveal no other symptoms consistent with a diagnosis of COPD. Administering spirometry when confronted with common cold symptoms is not medically necessary, so Petitioner proved that it overpaid $30.06 for this service. On June 29, 1998, Patient 5, who was diabetic, presented at Respondent's office with complaints of gradual onset of leg pain on exertion, alleviated by resting, and cramping at night. A physical examination revealed no right posterior pedal pulse, grade 2 edema and dermatitis, and bilateral varicose veins. Previous blood work had revealed high cholesterol, triglycerides, and low-density lipoprotein cholesterol. Respondent performed a doppler study of the arteries of the lower extremities, which Petitioner allowed. He also performed a doppler study of the veins of the lower extremities and a duplex scan of the veins of the lower extremities, both of which Petitioner disallowed. Petitioner also downcoded the office visit. Given Patient 5's diabetes and the laboratory work, the disallowed study and scan were justified. Petitioner failed to prove that the services were medically unnecessary or, as noted in the Preliminary Statement, due to the absence of the CPT manual, that the office visit should be downcoded, so Petitioner failed to prove that it overpaid for these services. On July 20, 1998, Patient 5 presented at Respondent's office with complaints of diffuse abdominal pain and nausea without vomiting. Respondent found that her liver was enlarged and tender and performed a liver echogram. Petitioner's disallowance of this service suggests an unfamiliarity with the subsequent report dated August 28, 1998, that states that a CT scan of the abdomen revealed possible metastatic disease of the liver and suggested correlation with liver echography. The liver echogram was medically necessary, so Petitioner failed to prove that it overpaid for this service. On August 13, 1998, Patient 5 presented at Respondent's office with complaints of low back pain of months' duration and related symptoms. Respondent performed three NCVs, including an H-Reflex. The NCVs suggested light peripheral neuropathy. Petitioner failed to prove that these tests were not medically necessary. On August 18 and 28, 1998, Patient 5 visited Respondent's office and received injections of vitamin B12 and iron. However, the medical necessity for these injections is absent from Respondent's records. Respondent testified that the iron was needed to combat anemia, but this diagnosis does not appear in the August 18 records. The August 28 records mention anemia, but provide no clinical basis for this diagnosis. Neither set of records documents the injections. Petitioner proved that it overpaid $94.25 and $37.70 for these services. On October 21, 1998, Patient 5 presented at Respondent's office with complaints of chest congestion, cough, and moderate shortness of breath of one day's onset, although she had visited Respondent one week earlier with the same symptoms. Petitioner allowed an aerosol treatment, but disallowed a maximum breathing procedure. Respondent testified that the service was the administration of oxygen, which is documented in the records and medically necessary. Petitioner's worksheets, which are Petitioner Exhibit 19, contain a handwritten note, "no doc[umentation]," but the shortcomings in Petitioner's evidence, as noted in the Preliminary Statement, prevent Petitioner from proving that it overpaid for this service. On November 11, 1998, Patient 5 presented at Respondent's office with complaints of weakness and fatigue of five or six months' duration. Respondent has previously diagnosed Patient 5 with hypothyroidism, and Respondent believed that she was not responding to her medication for this condition. Without ordering blood work to determine thyroid function, Respondent performed a thyroid echogram. However, this echography was not medically necessary, so Petitioner proved that it overpaid $45.24 for this service. On December 4, 1998, Patient 5 presented at Respondent's office with complaints of left chest and ribs pain and recent faintness. Respondent ordered an X ray of the ribs and conducted a physical examination, which revealed a regular heart rhythm. The following day, Respondent performed an echocardiogram and related doppler study. He had performed these tests seven months earlier, but the results were sufficiently different, especially as to new mitral and aortic valve regurgitation, so as to justify re-testing. Given Patient 5's poor health, these tests were medically necessary, so Petitioner failed to prove that it overpaid for these services. On December 17, 1998, Patient 5 presented at Respondent's office with complaints of cervical pain of three or four days' duration and radiating pain into the arms and hands. Noting a decreased grip on both sides and relevant aspects of Patient 5's history, Respondent performed two NCVs, including an H-Reflex, and ordered a cervical X ray. One NCV revealed abnormalities, but the H-Reflex did not. These tests were medically necessary, so Petitioner failed to prove that it overpaid for these services. On January 12, 1999, Patient 5 presented at Respondent's office with complaints of blurred vision, loss of memory, dizziness, and fainting over several months' duration. Respondent performed a carotid echogram, as he had on March 26, 1998. The results of the new carotid echogram were the same as the one performed nine months earlier. The problem is that, again, Respondent betrays his fondness for diagnosis without treatment, as he never addressed the abnormalities detected in the earlier echogram, except to reconfirm their existence nine months later. Petitioner proved that the second carotid echogram was not medically necessary, so it overpaid $99.14 for this service. On February 1, 1999, Patient 5 presented at Respondent's office with continuing complaints of leg pain and cramps. Respondent responded by repeating the doppler study of the veins of the lower extremities and a duplex scan of the veins of the lower extremities that he had performed only seven months earlier and another duplex scan. The main difference in results is that Respondent had suspected from the earlier tests that Patient 5 suffered from "deep venous insufficiency," but he found in the later tests that "mild vein insufficiency is present." Again, though, the tests performed on February 1 lack medical necessity, partly as evidenced by the failure of Respondent to design a treatment plan for Patient 5 after either set of test results. Petitioner proved that it overpaid $99.14, $37.92, and $110.50 for these services. On December 4, 1998, Patient 6 presented at Respondent's office complaining of leg pain, mild shortness of breath, and a cough. Except for the leg pain, the symptoms were of two days' duration. Patient 6 was 35 years old and had a history of schizophrenia and obesity. Respondent performed a physical examination and found decreased breathing with scattered wheezing in both lungs and decreased peripheral pulses, presumably of the lower extremities, although the location is not noted in the medical records. Respondent also found varices on both sides with inflammatory changes and swelling of the ankles. Respondent ordered duplex studies of the vascular system of the lower extremities and a doppler scan of the lower extremities. The results revealed diffuse atheromatous changes in the left lower extremity. Petitioner failed to prove that these services were not medically necessary. On the same date, Respondent performed a spirometry, which was "probably normal." Petitioner proved that this procedure was not medically necessary because of the mildness of the respiratory symptoms and their short duration. Petitioner overpaid $32.06 for this service. Respondent saw Patient 6 on December 9, 12, and 15, 1998, for abdominal pain, but Petitioner has not disallowed any of these services. On December 28, 1998, Patient 6 presented at Respondent's office with complaints of neck pain with gradual onset, now radiating to the upper and middle back, shoulders, and arms, together with tingling and numbness in the hands. Respondent performed three NCVs, including an H-Reflex, even though the physical examination had revealed active deep reflexes and no sensory deficits or focal signs. The results revealed mild abnormalities, which Respondent never discussed in his notes or addressed in a treatment plan. Petitioner proved that these services were not medically necessary, so Petitioner overpaid $195.12, $73.96, and $21.64 for these services. On February 2, 1999, Patient 6 presented at Respondent's office complaining of three days of chills without fever, left flank pain, and urinary frequency. Without first performing a urinalysis, Respondent performed a kidney echogram to rule out kidney stones. The echogram revealed no abnormalities. Petitioner proved that the renal echogram was not medically necessary, so it overpaid $62.37 for this service. On August 25, 1998, Patient 7, who was 58 years old, presented to Respondent's office with complaints of leg pains and cramps of five or six months' duration and some unsteadiness, as well as progressive numbness in her legs and feet. Patient 7 also complained of moderate shortness of breath, anxiety, and depression. The physical examination revealed decreased expansion of the lungs and decreased breath sounds, limited motion of the legs and back, decreased peripheral pulses (presumably of the legs), edema (again, presumably of the lower extremities), varices, and sensorial deficit on the external aspect of the legs. Blood work performed on August 25 was normal for all items, including thyroid function, except that cholesterol was elevated. Respondent ordered a chest X ray and electrocardiogram, which Petitioner allowed, but also ordered doppler studies of the veins and arteries of the lower extremities, an associated duplex scan, a spirometry, three NCVs (including an H-Reflex), and a somatosensory evoked potential test (SSEP), all of which Petitioner denied. Like the NCV, the SSEP is also an electrodiagnostic test that measures nerve function. The NCVs suggested mild peripheral neuropathy, which required clinical correlation, but the SSEP revealed no abnormalities. The doppler studies produced findings that "may represent some early arterial insufficiency" and "may represent some mild venous insufficiency," but were otherwise normal. The spirometry revealed "mild airway obstruction." The results of the tests do not support their medical necessity, nor do the complaints and findings preceding the tests. Petitioner proved that both doppler studies, the duplex scan, all three NCVs, the SSEP, and the spirometry were not medically necessary. Petitioner overpaid $66.48, $38.75, $108.58, $195.12, $73.96, $21.64, $42.68, and $17.70 for these services. Two days later, on August 27, 1998, Patient 7 presented at Respondent's office with swelling of her anterior neck and pain for two weeks. She complained that her eyes were protruding and large and that she had suffered mild shortness of breath for two days. Respondent ordered an echogram of the goiter, which Petitioner denied. Respondent's records contain no acknowledgement of the fact that, two days earlier, blood work revealed normal thyroid function. Even if the laboratory results were not available within two days of the draw, Respondent had to await the results before proceeding to ultrasound. Petitioner proved that the goiter echogram was not medically necessary, so it overpaid $43.24 for this service. On September 21, 1998, Patient 7 presented at Respondent's office with complaints of chest pain, palpitations, and shortness of breath. The physical examination revealed no abnormalities. Respondent performed an echocardiogram and related doppler study, largely, as he testified, to rule out thyrotoxicosis. However, as noted above, the blood work one month earlier revealed no thyroid dysfunction, and the medical records fail to account for this blood work in proceeding with a thyroid rule-out diagnosis. Petitioner proved that these services were not medically necessary, so it overpaid $117.23 and $51.34 for these services. On October 6, 1998, Patient 7 presented at Respondent's office with complaints of gradual loss of memory, fainting, and blurred vision. Respondent performed a carotid ultrasound, which revealed mild to moderate atheromatous change, but no occlusion. Petitioner failed to prove that this test was not medically necessary. Petitioner also downcoded the office visit, but, for reasons set forth above, its proof fails to establish that the billed visit should be reduced. On the next day, October 7, Patient 7 presented at Respondent's office in acute distress from pain of three days' duration in the legs, swelling, heaviness, redness, and fever. The physical examination revealed swelling of the legs and decreased peripheral pulses. Concerned with thrombophlebitis, Respondent ordered a chest X ray to rule out an embolism and a duplex scan of the lower extremities, neither of which revealed any significant abnormalities. Petitioner failed to prove that these tests were not medically necessary. On November 12, 1998, Patient 7 presented at Respondent's office with complaints of abdominal pain and vaginal discharge. One note states that the pain is in the left upper quadrant, and another note states that the pain is in the lower abdomen. The physical examination was unremarkable, but Respondent ordered echograms of the pelvis and spleen, which were essentially normal. Petitioner proved that the echograms were not medically necessary, so it overpaid $46.03 and $51.34 for these services. On November 30, 1998, Patient 7 presented at Respondent's office with complaints with worsening neck pain radiating to the shoulders and arms and decreased muscle strength on both sides. The physical examination uncovered decreased grip, normal pulses, and no focal findings. Respondent ordered three upper-extremity NCVs, including an H-Reflex, and an SSEP. The tests did not produce significantly abnormal results, such as to require any treatment beyond the anti-inflammatory medications typically used to treat the osteoarthritis from which Patient 7 suffered. Petitioner proved that the tests were not medically necessary, so it overpaid $193.12, $73.96, $21.64, and $42.68 for these services. One month later, on December 28, Patient 7 presented at Respondent's office with continuing complaints of neck pain and decreased muscle strength. Although the same three NCVs had revealed nothing significant only one month earlier, Respondent performed the same three tests. Petitioner proved that these tests were not medically necessary, so it overpaid $195.12, $73.96, and $21.64 for these services. On January 8, 1999, Patient 7 presented at Respondent's office with complaints of right upper quadrant abdominal pain of three days' duration with vomiting and urinary disorders. The physical examination suggested tenderness in the right upper quadrant of the abdomen. Respondent performed liver and renal echograms, which were normal. Petitioner allowed the liver echogram, but not the renal echogram. Petitioner proved that the renal echograms were not medically necessary, so it overpaid $62.37 for this service. On April 7, 1998, Patient 8, who was 48 years old and suffered from diabetes, presented at Respondent's office with an ulcer on her right foot with tingling, numbness, and muscle weakness in both legs. Relevant history included the amputation of the right toe. The physical examination revealed an ulcer on the right foot, but no tingling or numbness. Respondent ordered an electrocardiogram and a doppler study of the arteries of the lower extremities, both of which Petitioner allowed. However, Petitioner denied a doppler study of the veins of the lower extremities and a duplex scan of the veins of the lower extremities and three NCVs of the lower extremities, including an H-Reflex. The venous doppler study disclosed a mild degree of venous insufficiency and suggested a mild to moderate peripheral vascula disease without occlusion. The NCVs showed abnormal sensory functions compatible with neuropathy. In place of a report on the H-Reflex test, a report on an SSEP indicated some abnormalities. At the end of the visit, Respondent sent Patient 8 to the hospital for treatment of the infected foot ulcer. Petitioner failed to prove that the NCVs, including the H-Reflex or SSEP, and the venous doppler study were not medically necessary. For reasons already discussed, Petitioner also failed to prove that the office visit should be downcoded. On August 18, 1998, Patient 8 presented at Respondent's office with complaints of neck pain of two or three weeks' duration, dizziness, blurred vision, and black outs. Respondent ordered a carotid ultrasound, which revealed no abnormalities. Given the compromised health of the patient, Petitioner failed to prove that this service lacked medical necessity. On August 26, 1998, Patient 8 presented at Respondent's office with gastric complaints of three days' duration radiating to the upper right quadrant and accompanied by vomiting and occasional diarrhea. Patient 8 continued to complain of neck pain. Since yesterday, Patient 8 reported that she had had a frequent cough and shortness of breath. Her history includes fatty food intolerance, nocturnal regurgitations, and heartburn. The physical examination revealed a soft, nontender abdomen and normal bowel sounds. With "diagnoses" of epigastric pain, abdominal pain, and shortness of breath, Respondent performed, among other things, a spirometry. Given the short duration of Patient 8's respiratory complaints, Petitioner proved that the spirometry was not medically necessary, so Petitioner overpaid $17.70 for this service. On September 29, 1998, Patient 8 presented at Respondent's office with complaints of low back pain, malaise, chills, fever, and urinary disorders, all of three days' duration. The physical examination was unremarkable, but for unrelated findings in the lower extremities. Respondent performed an echogram of the kidneys, which revealed no significant problems. Petitioner proved that this ultrasound procedure was not medically necessary, so it overpaid $61.57 for this service. Respondent also billed for a diabetes test, but the test results are omitted from the medical records. Petitioner proved a lack of documentation for the diabetes, so it overpaid $11.50 for this service. On December 11, 1998, Patient 8 presented at Respondent's office with complaints of moderate neck pain, numbness and weakness of the shoulders and arms, and tingling of the hands, all of three or four months' duration. Diagnosing Patient 8 with cervical disc disease, cervical radiculitis, and diabetic peripheral neuropathy, Respondent ordered three NCVs, including an H-Reflex. The NCVs revealed some abnormalities, but evidently not enough on which Respondent could make a diagnosis and form a treatment plan. Although this Recommended Order finds an earlier set of NCVs of the lower extremities medically necessary, even though Respondent did not act on them, these NCVs are different for a couple of reasons. First, at the time of the lower- extremity NCVs, Respondent was preparing to send Patient 8 to the hospital, where follow-up of any abnormalities could be anticipated. Second, the lower-extremity NCVs were of the part of the body that had suffered most from diabetes, as Patient 8 had lost her toe. The NCVs performed on December 11 were basically in response to persistent or recurrent complaints about neck pain with an inception, for the purpose of this case, in mid-August. The record reveals that Respondent exerted some effort to diagnose the cause of the pain, but apparently never found anything on which he could base a treatment plan, because he never treated the pain, except symptomatically. From this point forward, Respondent could no longer justify, as medically necessary, diagnostic services for Patient 8's recurrent neck pain, but instead should have referred her to someone who could diagnose any actual disease or condition and provide appropriate treatment to relieve or eliminate the symptoms. Petitioner proved that the three NCVs were not medically necessary, so it overpaid $195.12, $73.96, and $21.64 for these services. On January 12, 1999, Patient 8 presented at Respondent's office with complaints of leg pain and heaviness of "years'" duration. She "also" complained of lower abdominal pain, more to the left side, of mild intensity, "but persistent and recurrent," as well as a burning sensation in the vagina. The physical examination is notable because Patient 8 reportedly refused a vaginal examination. Failing to order a urinalysis, Respondent proceeded to perform a pelvic echogram, as well as a doppler study of the veins of the lower extremities and two duplex scans of the arteries and veins of the lower extremities. The omission of a urinalysis and a vaginal examination--or at least a compelling reason to forego a vaginal examination--renders the pelvic ultrasound, whose results were normal, premature and not medically necessary. Except for the duplex scan of the arteries, Respondent had performed these lower-extremity procedures nine months earlier, just prior to Patient 8's hospitalization. Absent a discussion in the notes of why it was necessary to repeat these tests when no treatment plan had ensued earlier in 1998, these procedures were not medically necessary, so Petitioner overpaid $51.78, $99.14, $37.92, and $110.50 for these services. On January 29, 1998, Patient 9, who was 62 years old, presented at Respondent's office with complaints of weakness and numbness in his legs and fear of falling. A physical examination revealed limited range of motion of both knees. The deep reflexes were normal. Respondent performed three NCVs, including an H-Reflex, and an SSEP, all of the lower extremities. The SSEP was normal, but the NCVs produced results compatible with bilateral neuropathy. Petitioner failed to prove that these services were not medically necessary. On January 31, 1998, Patient 9 presented at Respondent's office with complaints of chest congestion and coughs of three days' duration, accompanied by shortness of breath. This record adds COPD to his history. The physical examination revealed normal full expansion of the lungs, but rhonchis and wheezing on expiration. Respondent ordered a spirometry, which revealed a mild chest restriction. Given the chronic pulmonary disease, Petitioner failed to prove that this service was not medically necessary. On April 14, 1998, Patient 9 presented at Respondent's office with complaints of abdominal pain of three days' duration with vomiting and diarrhea. His history included intolerance to fatty foods. The physical examination found the abdomen to be soft, with some tenderness in the right and left upper quadrants, but no masses, and the bowel sounds were normal. Respondent performed a liver echogram, which was normal. Petitioner proved that the liver echogram was not medically necessary, so it overpaid $44.03 for this service. On May 8, 1998, Patient 9 presented at Respondent's office with complaints of chest pain of moderate intensity behind the sternum, together with palpitations that increased on exertion and eliminated on rest. The physical examination revealed regular heartbeats, a pulse of 84, and blood pressure of 150/90. Respondent performed an electrocardiogram, echocardiogram, and doppler echocardiogram. The electrocardiogram revealed a cardiac abnormality that justified the other procedures, so Petitioner failed to prove that these services were not medically necessary. On June 4, 1998, Patient 9 presented at Respondent's office with complaints of malaise and fatigue, which had worsened over the past couple of weeks. The physical examination showed the lungs to be clear and the heartbeat regular. Patient 9's pulse was 76 and blood pressure was 130/80. Respondent performed a chest X ray and another electrocardiogram, both of which were normal. Petitioner proved that these services were not medically necessary, as the chest X ray was unjustified by the symptoms and physical examination, and an electrocardiogram had just been performed one month earlier, so Petitioner overpaid $18.88 and $15.74 for these services. On July 1, 1998, Patient 9 presented at Respondent's office with complaints of ongoing knee pain. Patient 9 had been re-scheduled for knee surgery and required another clearance. Respondent performed another electrocardiogram, even though he had performed one only three weeks ago, and the results had been normal, as were the results from the July 1 procedure. Petitioner proved that this service was not medically necessary, and it overpaid $15.74 for this service. On August 14, 1998, Patient 9 presented at Respondent's office with complaints of pain in his hands and wrists of three or four months' duration, accompanied by tingling in the fingers and a loss of strength in the hands. Respondent performed two NCVs, which revealed findings compatible with neuropathy, but the records reveal no action by Respondent in forming a treatment plan or referring the patient to a specialist. Petitioner proved that these services were not medically necessary, so it overpaid $195.12 and $73.96 for these services. On March 9, 1998, Patient 10, who was three years old, presented at Respondent's office with a sore throat with fever and malaise. His history included asthma, and he had suffered from mild shortness of breath and a dry cough of three days' duration. The physical examination was unremarkable, except for congested tonsils and scattered rhonchis, but no wheezes. Respondent administered an aerosol, which was appropriate, given the young age of the patient and his asthmatic condition. Petitioner failed to prove that this service was not medically necessary. On the next day, Patient 10 again presented at Respondent's office in "acute distress." Although his temperature was normal, his pulse was 110. The findings of the physical examination were the same as the prior day, except that the lungs were now clear. Respondent billed for another aerosol treatment, but the medical records omit any reference to such a treatment. Petitioner proved that Respondent failed to maintain documentation for this treatment, so Petitioner overpaid $10.03 for this service. On May 21, 1998, Patient 10 presented at Respondent's office with a cough, chest congestion, and mild shortness of breath, but no fever. A physical examination revealed scattered rhonchis, but no wheezes, and the boy's chest expression was full. Diagnosing the patient with acute bronchitis, Respondent administered a spirometry and an aerosol. Again, due to the age of the patient and his asthma, Petitioner failed to prove that the spirometry or aerosol was not medically necessary. On August 18, 1998, Patient 10 presented at Respondent's office with chest congestion, cough, and moderate shortness of breath, all of three days' duration. The physical examination showed that the lungs were free of wheezes. Respondent administered an aerosol and a chest X ray. The aerosol was appropriate given the age of the patient and his asthma. However, the chest X ray was inappropriate given the clear condition of the lungs. Petitioner proved that the chest X ray was not medically necessary, so it overpaid $18.88 for this service. On August 6, 1998, Patient 11, who was three years old, presented at Respondent's office with a fever and sore throat, both since the prior day, as well as abdominal pain of two or three weeks' duration. The physical examination disclosed that the abdomen was normal, as were the bowel sounds. Respondent performed a kidney echogram, which was normal. Given the age of the patient, his overall health, and the lack of confirming findings, Petitioner proved that the echogram was not medically necessary, so it overpaid $61.57 for this service. On October 1, 1998, Patient 12 presented at Respondent's office. Respondent billed an office visit, which Petitioner allowed. This is the only item billed for Patient 12 during the audit period, so there is no dispute as to Patient 12. On March 9, 1998, Patient 13, who was 30 years old, presented at Respondent's office with complaints of back pain, chills, burning urination, and general malaise, all of three days' duration. She also complained of lower abdominal pain, vaginal discharge, and pain during intercourse, but denied abnormal genital bleeding. The physical examination disclosed pain in the cervix on motion, but a normal temperature. Respondent performed echograms of the kidneys and pelvis to address his diagnoses of an infection of the kidneys and pelvic inflammatory disease. However, he ordered no blood work. The ultrasounds of the kidneys and the pelvis were normal. The symptoms and findings justified a pelvic echogram, but not a kidney echogram. Petitioner proved that the kidney echogram was not medically necessary, so that it overpaid $61.57 for this service. Petitioner failed to prove that the pelvic echogram was not medically necessary. On March 17, 1998, Patient 13 presented at Respondent's office with complaints of moderate chest pain behind the sternum with palpitations and anxiety. Diagnosing chest pain, mitral valve prolapse, and anxiety, Respondent ordered an electrocardiogram, which Petitioner allowed, and an echocardiogram and doppler echocardiogram, which Petitioner denied. The results from the latter procedures were normal. Petitioner failed to prove that these two procedures were not medically necessary. On June 12, 1998, Patient 13 presented at Respondent's office with complaints of leg pain of two to three months' duration with heaviness and discomfort, especially at night. Patient 13 also complained of mild shortness of breath and moderate cough. The history included bronchial asthma. The physical examination found normal full expansion of the lungs, but scattered expiratory wheezes in both lungs, as well as a possible enlarged and tender liver. The ankles displayed moderate inflammatory changes. Respondent diagnosed Patient 13 with varicose veins with inflammation and bronchial asthma. Respondent performed a doppler study of the veins of the lower extremities, a duplex scan of these veins, and a spirometry, which Petitioner denied, and an aerosol, which Petitioner allowed. The doppler study suggested a mild degree of venous insufficiency with bilateral varicose veins and edema. The spirometry revealed a moderate chest restriction and mild airway obstruction. Petitioner failed to prove that any of these services were not medically necessary. On March 10, November 16, and December 18, 1998, Patient 14 presented at Respondent's office. On each occasion, Respondent billed an office visit, which Petitioner allowed. These are the only items billed for Patient 14 during the audit period, so there is no dispute as to Patient 14. On March 18, 1998, Patient 15 presented at Respondent's office. Respondent billed an office visit, which Petitioner allowed. This is the only item billed for Patient 15 during the audit period, so there is no dispute as to Patient 15. On March 16 and 19 and April 8,1998, Patient 16 presented at Respondent's office. On each occasion, Respondent billed an office visit, which Petitioner allowed. These are the only items billed for Patient 16 during the audit period, so there is no dispute as to Patient 16. On September 4, 1998, Patient 17, who was 52 years old, presented at Respondent's office with complaints of leg pain after exertion and cold feet, as well as low back pain of several years' duration that had worsened over the past two to three weeks. Patient 17 also complained of low back pain that had persisted for several years, but had worsened over the past two to three weeks. The history included an heart bypass. The only abnormalities on the physical examination were decreased expansion of the chest, edema of the ankles, decreased peripheral pulses, and cold feet. Respondent performed a duplex scan of the arteries of the lower extremities, a spine X ray, and an injection to relieve back pain, all of which Petitioner allowed. Respondent also performed an electrocardiogram, which Petitioner denied. Even though the electrocardiogram revealed several abnormalities, nothing in the symptoms, history, or examination suggests any medical necessity for this procedure. Petitioner proved that the electrocardiogram was not medically necessary, so Petitioner overpaid $15.74 for this service. Four days later, on September 8, Patient 17 presented at Respondent's office with complaints of continuing low back pain, now radiating to the legs. The history and findings from the physical examination were identical to those of the office visit four days earlier. Respondent performed three NCVs, including an H-Reflex, which revealed a mild neuropathy. However, the symptoms and history did not justify these diagnostic procedures focused on the legs when the back was the longstanding problem area, nor did Respondent have any treatment plan for the back problem. Eventually, according to Respondent's testimony, a month or two later, he sent this patient to the hospital, where he could receive treatment for this painful condition. Petitioner proved that the three NCVs were not medically necessary, so it overpaid $195.12, $73.96, and $21.64 for these services. On October 2, 1998, Patient 17 presented at Respondent's office with complaints of chest pain on exertion of three days' duration. The physical examination disclosed decreased breath sounds in the lungs, but a regular rhythm of the heart. Respondent performed an echocardiogram, doppler echocardiogram, and duplex scan of the extracranial arteries. Given the patient's history of coronary artery disease and heart bypass, Petitioner failed to prove that these services were not medically necessary. On December 10, 1998, Patient 17 presented at Respondent's office with complaints of left flank pain and bilateral back pain of three days' acute duration, as well as urinary disorder and nausea. The physical examination was unremarkable. Respondent performed a kidney echogram, which was negative, to address his working diagnoses of urinary tract infection and kidney stones. However, Respondent performed no urinalysis, and the complaints did not justify elaborate diagnostics to rule out the improbable condition of stones. Petitioner proved that the kidney echogram was not medically necessary, so it overpaid $59.57 for this service. On October 9, 1998, Patient 18, who was 35 years old, presented at Respondent's office with complaints of chest pain and palpitations of gradual onset over nearly one year, unrelated to exertion and accompanied occasionally by moderate shortness of breath. Patient 18 reported that she had smoked heavily for several years and suffered from intermittent smoker's cough and phlegms. Relevant history included asthma and bronchitis. The physical examination revealed that the lungs were clear and the chest expanded fully. Petitioner allowed several cardiac diagnostic procedures, but denied a spirometry and aerosol, the former as medically unnecessary and the latter as lacking documentation. The spirometry revealed severe chest restriction. Given the results of the spirometry and the history of Patient 18 as a heavy smoker, Petitioner failed to prove that the spirometry was not medically necessary, but, given the mild symptoms at the time of the treatment, without regard to whether Respondent provided documentation, Petitioner proved that the aerosol was not medically necessary, so it overpaid $10.62 for this service. On October 16, 1998, Patient 18 presented at Respondent's office with complaints of persistent neck pain, radiating to the arms and hands. The physical examination disclosed a substantial limitation in range of motion of the neck, but no focal signs. Respondent performed three NCVs, including an H-Reflex, and an SSEP of the upper extremities, which revealed some abnormalities. Notwithstanding the positive findings, the absence of any treatment plan undermines the medical necessity of these diagnostic procedures. In response to these findings, Respondent merely changed Patient 18's anti- inflammatory medication, which he obviously could have done with negative NCVs and an SSEP. Petitioner has proved that the three NCVs and SSEP were not medically necessary, so it overpaid $195.12, $73.96, $21.64, and $42.68 for these services. On October 17, 1998, Patient 18 presented at Respondent's office with complaints of pelvic pain and vaginal discharge with left flank pain and urinary disorders. She also complained of leg pain and fatigue after standing. A previously performed urinalysis had revealed blood in the urine. The physical examination found vaginal discharge and pain in cervix motion to the right and left sides. It also found normal peripheral pulses and normal movement in all limbs, although some varicosities and inflammatory changes were present. Respondent performed echograms of the kidneys and pelvis and a doppler study and duplex scan of the veins of the lower extremities. Although both echograms were normal, these procedures were justified due to the symptoms and findings. The procedures performed on the lower extremities, which revealed a mild degree of venous insufficiency, were not justified by the complaints or findings. Petitioner failed to prove that the echograms were not medically necessary, but proved that the doppler and duplex procedures were not medically necessary, so it overpaid $38.75 and $108.58 for these services. On November 18, 1998, Patient 18 presented at Respondent's office with complaints of weakness of two to three months' duration and eating disorders. The physical examination uncovered a palpable, enlarged thyroid, even though, one month earlier, the physical examination found the thyroid to be non- palpable. Although the medical records indicate that Respondent ordered laboratory tests of thyroid function, no such reports are in his medical records, and, more importantly, he performed a thyroid echogram, which was normal, prior to obtaining the results of any laboratory work concerning thyroid function. Petitioner proved that the echogram was not medically necessary, so it overpaid $45.24 for this service. On January 21, 1999, Patient 19, who was four months old, presented at Respondent's office with a cough. Eight days earlier, Patient 19 had presented at Respondent's office with the same condition, and Respondent had recommended that the patient's mother hospitalize him if the symptoms worsened. A physical examination revealed that the lungs were clear and the chest fully expanded. Respondent administered an aerosol. Petitioner proved that the aerosol was not medically necessary, so it overpaid $10.97 for this service. On February 2, 1998, Patient 21, who was 46 years old, presented at Respondent's office with complaints of generalized headache and chest discomfort. For the past two weeks, Patient 21 had also suffered from painful urination. The relevant history included non-insulin-dependent diabetes and paranoid schizophrenia. The physical examination indicated that Patient 21's heart beat in regular rhythm. Patient 21's blood pressure was 190/105, and his cholesterol and triglyceride were high. His femoral and popliteal pulses were decreased. Respondent performed an electrocardiogram, which Petitioner allowed, and, after learning that the results were borderline abnormal, an echocardiogram and doppler echocardiogram, which Petitioner denied. Given the symptoms, Respondent was justified in proceeding with additional diagnostic tests, especially given the difficulty of treating a schizophrenic patient. Petitioner failed to prove that the echocardiogram and doppler echocardiogram were not medically necessary. On March 2, 1998, Patient 21 presented at Respondent's office with complaints, of four months' duration, of leg pain when standing or walking a few blocks. The physical examination revealed decreased peripheral pulses. Respondent performed a doppler study and duplex scan of the veins of the lower extremities, which were both normal. Given the diabetes and schizophrenia, these diagnostic procedures were justified. Petitioner failed to prove that these services were not medically necessary. On April 2, 1998, Patient 21 presented at Respondent's office with complaints of worsening leg pain, now accompanied by numbness and tingling in the feet and sensorial deficit on the soles of the feet. The physical examination was substantially the same as the one conducted one month earlier, except that the deep reflexes were hypoactive. Respondent performed three NCVs, including an H-Reflex, on the lower extremities, and they revealed abnormal motor functions. However, the failure of Respondent to prepare a treatment plan or refer Patient 21 to a specialist precludes a finding of medical necessity. Petitioner has proved that these NCVs were not medically necessary, so it overpaid $195.12, $73.96, and $21.64 for these services. On April 30, 1998, Patient 21 presented at Respondent's office with complaints of difficulty urinating for the past three or four days. A physical examination revealed an enlarged, tender prostate. Forming a working diagnosis of prostatitis and chronic renal failure, Respondent performed prostate and kidney echograms, which were both normal, but no laboratory work on the urinary problems. Petitioner failed to prove that the prostate echogram was not medically necessary, but proved that the kidney echogram was not medically necessary, so it overpaid $61.57 for this service. On July 3, 1998, Patient 21 presented at Respondent's office with complaints of visual disorders, dizziness, blacking out, and fainting, all of several months' duration. Respondent performed a carotid echogram, which was normal. Petitioner failed to prove that this service was not medically necessary. On August 4, 1998, Patient 21 presented at Respondent's office with complaints of moderate neck pain of five or six months' duration, radiating to the shoulders and arms and accompanied by tingling and numbness of the hands. The physical examination disclosed decreased femoral and popliteal pulses, limited motion in the neck and shoulders, pain in the shoulders upon manual palpation, pain in the wrists upon passive movements, and decreased grip on both sides. Respondent performed two NCVs, including an H-Reflex, and an SSEP, all of the upper extremities. The NCVs suggested bilateral carpal tunnel syndrome, and the SSEP showed some abnormalities of nerve root function. Respondent responded to these data with a prescription for physical therapy three times weekly. Petitioner failed to proved that the two NCVs and SSEP were not medically necessary. On September 1, 1998, Patient 21 presented at Respondent's office with complaints of "chest oppression" and hypertension since the previous day. Patient 21 also complained of moderate neck pain and urinary discomfort of three days' duration. His blood pressure was 160/100, and his heart was in regular rhythm. Respondent performed an electrocardiogram, which Petitioner allowed, and a 24-hour electrocardiogram with a halter monitor, after learning that the results of the initial electrocardiogram were abnormal. Petitioner disallowed the latter procedure, but failed to prove that it was not medically necessary. On October 6, 1998, Patient 21 presented at Respondent's office with complaints of chest pain, dizziness, fainting, excessive hunger and weight gain, and weakness. His blood pressure was 170/100, and his pulse was 88. His heart beat in a regular rhythm, and his thyroid was enlarged, but smooth. Respondent performed an echogram of the thyroid, even though he had not ordered laboratory work of thyroid function. He performed an echocardiogram and a doppler echocardiogram. All echograms were normal, although Patient 21 suffered from some mild to moderate sclerosis of the aorta. Petitioner proved that these echograms were not medically necessary because the thyroid echogram was not preceded or even accompanied by laboratory work of thyroid function, and the other procedures of repeated diagnostic tests that Respondent had performed eight months earlier and were normal at that time. Petitioner thus overpaid $43.24, $61.96, and $29.31 for these services. On November 6, 1998, Patient 21 presented at Respondent's office. Petitioner downcoded the office visit, but, as discussed above, the failure of Petitioner to produce the CPT manual prevents a determination that Respondent overbilled the visit. On January 4, 1999, Patient 21 presented at Respondent's office with complaints of flank pain of four months' duration accompanied by several urinary disorders, chills, and occasional fever. The physical examination revealed a distended and soft abdomen and tenderness in the flanks and right upper quadrant. Respondent performed a kidney ultrasound, despite having performed one eight months earlier and obtained normal results, but learned this time that the left kidney had a cyst consistent with chronic renal failure. Petitioner failed to prove that this service was not medically necessary. On January 29, 1999, Patient 21 presented at Respondent's office with complaints of moderate back pain of two weeks' duration, radiating to the legs, and weakness in the legs. The physical examination revealed pain on bending backward or forward and muscle spasm. Respondent performed a lumbar X ray, which Petitioner allowed, and three lumbosacral NCVs, including an H-Reflex, which Petitioner denied. The NCVs revealed mild neuropathy, although an SSEP, evidently billed as an H-Reflex, was normal. Petitioner failed to prove that these services were not medically necessary. The total overpayments, before extrapolation, from Petitioner to Respondent are thus $5952.99.
Recommendation It is RECOMMENDED that the Agency of Health Care Administration enter a final order determining that, prior to extrapolation, Respondent owes $5952.99 for overpayments under the Medicaid program. DONE AND RECOMMENDED this 26th day of May, 2006, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 26th day of May, 2006. COPIES FURNISHED: Alan Levine, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308 Christa Calamas, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Jeffries H. Duvall Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Craig A. Brand Law Offices of Craig A. Brand, P.A. 5201 Blue Lagoon Drive, Suite 720 Miami, Florida 33126 Oscar Mendez-Turino 2298 Southwest 8th Street Miami, Florida 33135
The Issue At issue in this proceeding is whether Cassidy Taylor Shiver, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Kellie Dawn Shiver and Robert L. Shiver are the parents and natural guardians of Cassidy Taylor Shiver (Cassidy), a minor. Cassidy was born a live infant on November 5, 1996, at DeSoto Memorial Hospital, a hospital located in Arcadia, Florida, and her birth weight was in excess of 2500 grams. The physician providing obstetrical services during Cassidy's birth was Dumitru-Dan Teodoreseu, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded under the Plan when the claimant demonstrates, more likely than not, that the infant suffered an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, Cassidy's neurologic condition is dispositive of the claim and it is unnecessary to address the timing or cause of her condition. Cassidy's neurologic status On January 7, 1999, following the filing of the claim for compensation, Cassidy was evaluated by Michael Duchowny, M.D., a board-certified pediatric neurologist. Dr. Duchowny chronicled Cassidy's history and the results of his examination as follows: I evaluated Cassidy Shiver on January 7, 1999. Cassidy is a 2 year old girl who comes for an evaluation of developmental problems. Cassidy was accompanied by her mother and maternal grandmother. HISTORY ACCORDING TO THE FAMILY: The family began by explaining that Cassidy's seizures are her main ongoing problem. She had her last seizure several weeks ago and is now taking phenobarbital 20 mg b.i.d. Her seizure onset was at 2 months of age. She has essentially had persistent seizures, except for a 6 month seizure free interval. Each episode lasts approximately 1 to 2 minutes and typically occurs 15 to 20 minutes after falling asleep. Cassidy experiences the rapid onset of tonic and subsequently clonic movements primarily involving the upper extremities. They are associated with loss of consciousness and foaming at the mouth. She has a period of postictal depression before regaining normal baseline status during daytime attacks. Cassidy was allegedly the product of a 32 weeks gestation, born with the birth weight of 5-pounds, 9-ounces. The delivery was by a vacuum extraction and left Cassidy with a large right cephalohematoma. There was a significant collection of blood which ultimately "ruptured". Mrs. Shiver indicated that Cassidy experienced damage to both frontal lobes which was documented on both CT and MRI studies. Despite Cassidy's stormy neonatal course, her growth and development have proceeded reasonably well. She walked at 16 months and said single words at 22 months. She is not yet potty trained. Cassidy is fully immunized, has no known allergies and has never undergone surgery. She sporadically sees physical and occupational therapist, but Mrs. Shiver's [sic] performs the therapies at home. Cassidy has made a remarkable recovery, in that her motor function is essentially within the normal range with the exception of a minor arm asymmetry and with decreased left swing. Cassidy is quite curious and socially engaging. Her vision and hearing are said to be adequate and there has been no deterioration in her overall developmental level. PHYSICAL EXAMINATION today reveals Cassidy to be alert and cooperative. The skin is warm and moist. Her hair is blonde and of normal texture. Cassidy's head circumference measures 50.2 cm which is within standard percentiles. The anterior and posterior fontanelles are closed. There are no significant cranial or facial asymmetries. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. NEUROLOGICAL EXMINATION reveals Cassidy to be alert, curious and slightly overactive. She does participate in the examination fully and is socially engaging. Cassidy maintains central gaze fixation and demonstrates conjugate following movements. The pupils are 4 mm and react briskly to direct and consentually presented light. There are no fundoscopic abnormalities. The tongue and palate move well. Motor examination reveals symmetric strength, bulk and tone. There are no adventitious movements or evidence of focal weakness. The gait is stable with an arm swing that indeed shows some posturing of the left arm. This is minimal however and does not affect Cassidy's stance or balance. She demonstrates good dexterity with both hands and has a well developed fine motor coordination for age. She uses both hands in a coordinated fashion. The deep tendon reflexes are 2+ and symmetric with flexor plantar responses. There is no evidence of gait, truncal or extremity ataxia. The neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. The sensory examination is deferred. Cassidy did not speak in words or sentences at any time during the evaluation, but tends to verbalize consonants only. In SUMMARY, Cassidy's neurologic examination reveals evidence of an expressive language delay and a minor non-functional asymmetry of upper arm swing on her gait. Otherwise, Cassidy appears to be developing well and is being managed appropriately for her seizure diathesis. In Dr. Duchowny's opinion, which is credited, Cassidy is not currently substantially physically impaired and, notwithstanding any events which may have occurred at birth, is not likely to be so impaired in the future. 1/ (Respondent's Exhibit 1, pages 8, 9, and 11.)
The Issue The issues to be resolved are whether Respondent, Robert B. Dehgan, M.D. (Dr. Dehgan or Respondent), committed sexual misconduct in violation of sections 456.072(1)(v) and 458.331(1)(j), Florida Statutes (2014), with respect to patients A.S., S.M., and C.T.; and if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and upon the entire record of this proceeding, the following factual findings are made: Petitioner is the state agency charged with regulating the practice of medicine pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. At all times material to these proceedings, Respondent was a licensed medical doctor within the State of Florida, having been issued license number ME16903. Respondent’s address of record is 220 Paseo Terraza, No. 307, St. Augustine, Florida 32095. Respondent originally practiced as an orthopedic surgeon. However, Respondent experienced some professional difficulties in the mid-80s that resulted in his seeking and completing retraining in the area of physical medicine and rehabilitation.1/ He is board certified in physical medicine and rehabilitation. At the time of the allegations giving rise to this case, Respondent was practicing pain management with a practice entitled “Jacksonville Multispecialty Group, LLC” (JMG), and held the necessary certification from the United States Drug Enforcement Agency to prescribe Suboxone and Subutex. Suboxone is a brand name for buprenorphine, a synthetic opioid, which is a controlled substance and is generally used to treat opioid addiction. Subutex is also a brand name for buprenorphine. Unlike Suboxone, Subutex does not contain naloxone, an additive used in Suboxone to prevent overdosing. Subutex is prescribed for pregnant patients and those patients who cannot tolerate Suboxone. The office policy for pain management patients at JMG, consistent with most similar health care providers, was to obtain a urine sample for a 12-panel test at each visit. The purpose of the drug testing was to insure that pain management patients were abiding by the contract that they sign, and taking only the medicine prescribed to them. If a patient is compliant, the test results should show the existence of the drugs prescribed in his or her system, and none others. If a patient is not compliant, it is a basis for dismissing the patient from the physician’s practice. The urine sample given at each visit is used for a test performed in the office, and tests for 12 drug classes. The results from the 12-panel test are presumptive only. If any results are positive that should not be, the sample is sent to a laboratory that does complex testing for confirmation. The confirming laboratory then performs a liquid chromatography mass spectrometry (LCMS). The LCMS is a very specific test that provides confirmation for drug use and drug classes, and rules out the possibility of false positives that may occur with a point-of-care test. According to Dr. Bruce Goldberger, M.D., a professor and the director of toxicology at the University of Florida College of Medicine, LCMS is the more accurate test and is considered the gold standard in drug testing. Dr. Goldberger’s testimony is credited. Patient S.M. Patient S.M. received medical care from Respondent from March 12, 2014, through August 27, 2014. S.M. saw Dr. Dehgan or an Advanced Registered Nurse Practitioner (ARNP) under his supervision approximately every four weeks during this time period. At the time of her initial presentation to JMG, S.M. was 44 years old. S.M. had been prescribed opiates in response to a badly sprained ankle and some dental surgery, and as a consequence, became addicted to them. She testified candidly and credibly at hearing that as a result of her addiction, she sought both prescription and illegal street drugs, including heroin, methadone, oxycodone, and hydrocodone. S.M. was frightened by her behavior, and sought treatment in order to get clean and to be a better role model for her daughter. Respondent treated S.M. with Subutex,2/ and she responded well to the treatment and has managed to refrain from using opiates and other illegal drugs. She had no complaints regarding Respondent’s treatment plan for her and felt she benefited significantly from his treatment plan. When a patient would come to the office at JMG for a follow-up visit while on Suboxone or Subutex treatment, the patient would fill out a therapy progress report. The therapy progress report asked the patient a series of questions, such as “please describe any life changes, triggers, or stressors that have occurred since your last visit,” “list your ideas and plan to cope with these life changes, triggers, or stressors,” and “what is your next short-term goal?” S.M. routinely completed these therapy progress reports and recorded in the early reports how much better she was feeling, and that she was not experiencing any cravings. Dr. Dehgan ordinarily reviewed the therapy progress report at the time of a patient’s visit if it was available. S.M. saw Dr. Dehgan approximately every four weeks. The first three visits were routine and uneventful. However, at her visit on May 30, 2014, S.M. remarked on her therapy progress report that she was anxious because her daughter was getting ready to leave for Canada for the summer, and she had been fighting with her ex-husband regarding finances. She talked to Dr. Dehgan about her anxiety, and mentioned that she had taken a second job working on the weekends at the beaches in St. Augustine and the Palm Coast area. Dr. Dehgan told her that he lived on the beach and asked if he could give her his cell phone number, and maybe he could take her to lunch. S.M. said okay, because she did not know what else to do. He handed her a slip of paper with the phone number on it, and she put it in her purse. When she stood up to leave, Respondent hugged her and attempted to kiss her, ultimately kissing the side of her face near her ear because she turned her head away from him. The door of the examination room was closed, and there was no attendant or ancillary personnel in the room at the time Dr. Dehgan hugged and attempted to kiss S.M. S.M. was shocked by Dr. Dehgan’s actions, as nothing like this had ever happened to her before. She left the office without saying anything to anyone about it, and confided only to the one person outside of JMG who knew that she was taking Subutex. Despite the incident described above, S.M. returned to JMG for her next scheduled appointment with Dr. Dehgan, because she could not find another provider who could prescribe Subutex and who would take her health insurance. Most providers that she could find would only take cash, and she could not afford to pay for treatment without using her insurance. S.M.’s next scheduled appointment was June 27, 2014. Initially, Respondent did not mention or acknowledge his actions at the May 30 appointment, and S.M. was relieved. At the end of the appointment, however, Respondent remarked, “hey, I gave you my phone number. You didn’t call me.” S.M. made up an excuse that she had lost the phone number. As he left, Respondent hugged her again. S.M. interpreted Respondent’s actions as romantic in nature. As she stated, she did not know if Respondent wanted to have sex with her, “but I know when someone is asking me on a date.” S.M. also saw Respondent on August 1, 2014, and August 27, 2014. On August 27, 2014, there was a female staff member in the room for her appointment. Respondent had been presented with and signed an acknowledgment form on August 22, 2014, just five days before, which stated: I understand the office policy that a female member of our staff must be present during my female patient’s office visits. I understand that I will not conduct the office visit without ensuring that a member of our staff is present. Andrea Pratt, vice president of operations for JMG, testified that the acknowledgement form was put in place to protect both the doctor and the patient, and was put in place after receiving a complaint from another patient. Only Dr. Dehgan was required to sign an acknowledgement form. Dr. Dehgan’s testimony in his deposition that he requested the change in policy because he was being propositioned by female patients is rejected as not being credible, and Ms. Pratt’s testimony regarding the reason for the policy is accepted. On September 15, 2014, Respondent was terminated from his employment with JMG. While Respondent contends that it was for having ten unsigned patient charts, the termination letter indicates that he was terminated without cause. As a result of his dismissal from JMG, at her next scheduled appointment, S.M. saw Dr. Hernan Chang, M.D. When she checked in for the appointment, she asked if Dr. Dehgan was no longer there because he kisses his patients. S.M. continued to be treated at JMG and seen by Dr. Chang, until she received a letter from the practice in 2015 indicating that Dr. Chang would no longer be seeing patients at that location. Respondent testified that he has no recollection of S.M. He attempted to impeach S.M.’s credibility on the basis of a positive urine drug screen result received from a point-of-care test at JMG. S.M.’s 12-panel test for her appointment on September 25, 2014, was negative for opiates. However, the confirmatory LCMS was positive for morphine, with a value of 85, compared to a reference range of less than 50 nanograms per milliliter. S.M. denied taking morphine or any other opiates after starting Subutex. S.M.’s drug results were reviewed by Dr. Goldberger, who testified that a concentration of 85 nanograms per milliliter of morphine can be attributed to ingestion of morphine, ingestion of codeine, or ingestion of poppy seeds. These possible attributions also are listed on the report itself. He opined that it would be difficult to attribute the exact source of morphine resulting in this test result for S.M. His testimony is persuasive, and is credited. S.M. did not know any other patients who treated with Dr. Dehgan, and does not know any of the patients who were witnesses in this case. Her testimony was consistent and persuasive: she was candid about the scope of her drug dependence, including her resort to illegal drugs. Her explanation as to why she continued to see Dr. Dehgan after the May 30 incident is believable, considering her desire to remain off illicit drugs and opiates, and the continued references to financial difficulties in her therapy reports. Indeed, the note for her second visit indicates that a stressor for her was the difficulty getting her medications approved by her insurer. It is understandable that she would be reluctant to change physicians if she could not find one that would take her insurance. Moreover, even assuming that S.M. was noncompliant leading up to her visit on September 25, 2014, and the evidence does not support such a finding, any noncompliance would not necessarily lead to a conclusion that she was not telling the truth regarding her encounters with Respondent. Patient A.S. Patient A.S. initially presented to Dr. Dehgan for treatment of opiate dependence when Dr. Dehgan worked at Orthopedic Associates, prior to his employment at JMG. When she first presented for treatment at JMG, A.S. was 50 years old. She had a lengthy history of multiple abdominal surgeries dating back to her mid-twenties, including bowel resections, multiple hernia repairs, a tubal ligation, hysterectomy, endometriosis treatment, tubal pregnancy, and appendectomy. As a result of her lengthy use of legitimately- prescribed opioid medications, A.S. became dependent on them. A.S. began treating with Dr. Dehgan at JMG beginning June 10, 2013, and continued treatment at JMG until September 16, 2014, receiving Suboxone for her opioid addiction. Like S.M., A.S. was satisfied with Respondent’s treatment plan. She had no complaints about Dr. Dehgan until the summer of 2014. During that summer, there were three separate incidents where A.S. contends that Respondent touched her inappropriately. While A.S. did not recall the exact dates of these incidents, she was consistent in her testimony of what happened and in her belief that these incidents occurred on three different, consecutive appointments with Dr. Dehgan leading up to the Respondent’s termination from JMG.3/ At A.S.’s first appointment at JMG, she filled out a patient questionnaire that asked a variety of questions related to past medical history, current complaint, and medications taken. The questionnaire included a diagram, showing the front and back of a person’s body, on which a patient was directed to identify areas and types of pain. A.S. identified pain both in the abdominal area, and the corresponding area on her lower back. She described the pain for both areas as being sharp and aching. She did not indicate that she had any pain radiating down either leg. Respondent made no assessment regarding back pain in his notes, but prescribed Suboxone for her chronic pain and recommended follow-up in two months. At all subsequent visits but one, A.S. continued to complete some sort of questionnaire or a therapy progress report. For the visits on August 13, 2013, and September 13, 2013, there is no mention of back pain by either Respondent or A.S. There does not appear to be a questionnaire for the appointment on November 22, 2013, but Respondent’s notes for this visit mention low back pain for the first time.4/ Respondent’s records for the November 22 appointment identify constant low back pain under the “History of Present Illness” category. The note states in part: 50-year-old female is seen in the office today for followup evaluation and management of chronic opioid dependency. She takes Suboxone 8 mg twice daily. She is not taking any other medications and maintaining well on Suboxone twice daily There [sic] has been no interval change in the location, quality, increasing/decreasing factors, associated signs and symptoms as previously described. Lumbar Spine/Lower Back: Low back pain bilaterally, lumbar, that is constant, Nature: aching, Aggravated by: any physical activity, Aggravated by: bending, Severity: moderate to severe. Previous trials offered little or short durations of relief. Some relief from medications. Low back pain midline, paraspinal, Nature: aching, Nature: shooting, lumbar, that is constant, aggravated with movement, walking, lifting the legs. Radiates down the leg with associated numbness that is has [sic] severity: moderate to severe. Despite this lengthy note describing what appears to be a new complaint, Respondent’s notes for the back under the “General Examination” section of the patient record is exactly the same as it was for the previous visit and contains no positive findings: BACK: Cervical, thoracic and lumbar spines, full range of motion, no kyphosis, no scoliosis, spine nontender to palpation, No muscle spasms noted, no paraspinal muscle tenderness nor trigger points identified. Respondent did not sign this patient record: it reflects an electronic signature of January 6, 2015, well after his departure, and the sign-off status is listed as “pending.” A.S.’s next appointment at JMG was December 20, 2013. Her questionnaire for the visit indicated that she was depressed, had a stomach ache, and that it was not a good time of year for her. She was simply seeking to get through things and hope the next year was better. There is no mention of back pain. Respondent’s notes, however, under “History of Present Illness” are identical to the November 22 visit with respect to back pain. The physical examination is also identical, with no real findings related to her back. This patient note also is listed as “pending,” and is electronically signed in January 2015, after Respondent’s departure. Similarly, A.S.’s notes on her questionnaire for her January 17, 2014, visit mention depression, loneliness, and an asthma flare-up, but make no mention of back pain. Respondent’s notes, which are electronically signed well after his termination, reference low back pain, but make the same negative findings with respect to his examination. A.S.’s notes for the visit on February 19, 2014, mention problems with her car as a stressor, but again mention nothing about back pain or abdominal pain. Respondent’s notes reference ongoing abdominal pain, but make no mention of back pain in the “History of Present Illness.” References to the back under “General Examination” are the same negative findings listed for prior visits, yet lumbago and sciatica are listed as diagnoses under “Assessments.” The same can be said for Respondent’s notes for the visit on March 21, 2014, for which A.S.’s questionnaire makes no mention of back pain. It was during this visit that the first incident of what A.S. alleged was inappropriate behavior by Respondent most likely occurred. A.S. had been telling Dr. Dehgan about how she was feeling, and A.S. testified that as she was getting ready to leave the examining room, Respondent said, “I think you need a hug,” and reached over and hugged her. The embrace lasted about 30 seconds and made her feel strange. A.S. testified that the hug was initiated by Dr. Dehgan at a time when the door to the examining room was closed and there was no one else in the room. She was astonished because no doctor had ever done that to her before. She continued to see him, however, because she thought this first incident was a “fluke” and finding a pain management physician was difficult. At A.S.’s visit on April 18, 2014, she wrote that she was very depressed and was experiencing chronic pain with respect to her abdomen and lower back, and that her allergies had been terrible. Respondent’s notes, which he signed on April 28, 2014, indicate that she complained of persistent abdominal pain, hernia, and low back pain radiating to her buttocks. Under his “General Examination” for this visit, Respondent noted that her abdomen was soft and tender to the touch; that there was “presence of hernia and right lower side.” With respect to her back, he notes for the first time that there is tenderness on the lumbar paraspinals, sacrum, and buttocks; that there is forward flexion, associated with moderate pain; that A.S. “stands and toes and heels with some discomfort”; and that her “[s]traight leg rising is mildly positive.” Respondent lists lumbago and sciatica among her diagnoses, with lumbago as the primary diagnosis. A.S. testified that she talked to Respondent about her fear that she had another hernia that might need repair, and he offered to check it for her. She consented to his doing so. He did not ask her to take her clothes off, and the examining room door was closed, with no one else in the room. During his purported examination related to her hernia, Respondent did not examine the four quadrants of her abdomen. He simply touched her abdomen and reached up and squeezed A.S.’s right breast with one hand. A.S. has suffered from hernias and has been examined in connection with hernia repairs since her early thirties. She had seen two prior physicians for this condition before seeing Respondent. No other doctor had ever touched her breast in the examination of her hernia. Dr. Jonathan Waldbaum, M.D., testified as an expert on behalf of the Department. Dr. Waldbaum testified that a breast examination should never be part of an abdominal examination, and while it was possible for there to be incidental touching of a patient’s breast, depending on the location of the hernia and the physique of the patient, any such contact would be limited to the back of the physician’s hand coming into contact with the breast. Even Respondent testified that there would be no reason for him to touch A.S.’s breast. A.S. testified that she backed away from Respondent, but did not say anything to him. A.S.’s next appointment at JMG was June 19, 2014, at which time she saw an ARNP, Ashley Schinner. While her questionnaire does not mention back pain, the patient record notes back pain and abdominal pain related to her hernia in the “History of Present Illness” section, but no positive findings regarding her back under the “General Examination.” Lumbago and sciatica remain under the “Assessments” section. A.S. saw Dr. Dehgan at her next appointment, July 17, 2014. A.S. continued to see Dr. Dehgan because she needed the medication he prescribed. Again, her questionnaire mentions some mild depression, but not back pain. Respondent’s notes, on the other hand, indicate under “History of Present Illness” that she complains of low back pain radiating to the hips, lower limbs, feet and ankles. It also notes abdominal pain, and references the history of 13 abdominal surgeries. With respect to his examination, Respondent notes tenderness and lumbar paraspinals, sacroiliac and buttocks, that her range of motion of the lumbar spine is associated with pain, and that her “[s]traight leg raising is positive on both sides.” Respondent’s notes continue to list lumbago as her primary complaint, as well as listing sciatica and chronic pain syndrome along with her opioid dependence. A.S. testified that at the July 17 visit, she told Dr. Dehgan that her back was hurting, not because of a problem originating with her back, but because the pain in her abdomen caused her to hunch over and to be unable to stand up straight. A.S. testified that Respondent felt her back and ran his hand down her buttock on the right side, not in the manner one would expect as part of a physical examination, but more like a caress. When asked to specify what part of her body he touched, A.S. testified that he went “low,” low enough for it to be inappropriate in that it was nowhere near her back, and Respondent used only one hand. A.S. testified that she had never had another doctor examine her back before, but did not believe this examination to be appropriate. She told her sister that she would never go into Respondent’s office alone again. Assuming that the incident occurred in July 2014, she did, however, return for one more visit where Dr. Dehgan was present. It is unclear whether her sister went with her for this visit, but the medical records by Respondent are consistent with those for the prior visit. A.S.’s final visit occurred September 16, 2014, after Dr. Dehgan’s termination from the practice. At that time, she was accompanied by her sister and saw Dr. Chang as opposed to Dr. Dehgan. When she was told that Dr. Dehgan had been let go, she asked whether his termination was due to sexual harassment. A.S. is no longer going to JMG. She also is no longer a Suboxone patient, and has resumed taking opiates because her pain is too intense to do without it. While she reported needing additional surgery, she has been advised that she must stop smoking before surgery can be performed. She continues to suffer from depression, and will no longer see a male doctor because of trust issues created by Respondent’s actions. Following her treatment with Respondent, A.S. experienced further depression leading to a suicide attempt and involuntary hospitalization, which was, in part, attributable to the events described in this proceeding. Respondent testified that he has no recollection of A.S., yet also testified that he remembers A.S. asking that he examine her for a hernia, and that she had a long scar from her sternum to her pubis.5/ He attempted to discredit A.S.’s testimony by demonstrating the differences between her recollection of the visits and what is written in Respondent’s notes. Specifically, A.S. was adamant that she only complained about back pain on one occasion, at her July 2014 visit. Respondent’s notes, however, indicate multiple claims of back pain. A.S.’s handwritten questionnaire clearly reference back pain on at least three occasions. They do not, however, include any reference to pain radiating down her legs or into her feet. Even the diagram on which A.S. marked the areas of pain in her back for her initial visit indicated that the pain was more at the hip level than her buttocks. In each instance where A.S. did reference back pain in her questionnaires, the reference is in connection with abdominal pain. Clearly, the pain caused by her adhesions and recurrent hernia was her primary complaint. In her view, any back pain was ancillary to the abdominal pain that she had lived with for years. It also appears that many of the notes in Respondent’s medical records appear to be canned, or part of a template. Andrea Pratt testified that the electronic medical records system JMG used included templates that physicians could use, but were not required to be used. While Respondent denied using the templates, given the grammar (or lack thereof) and identical nature of some of the entries, use of the templates would explain some of the medical entries. Further, while several of the visits contain diagnoses of lumbago and sciatica, the record is clear that the primary purpose for A.S.’s treatment with Respondent always remained her treatment for opioid dependence. Respondent also attempted to impeach A.S.’s testimony because of her drug use,6/ and a positive drug test at her August 13, 2014, appointment, which reflected a positive result for oxycodone. However, the toxicology confirmation report from Essential Testing indicated a negative result for opiates. Dr. Goldberger testified credibly that A.S. did not have oxycodone in her system on August 13, 2014, and his testimony is accepted. Finally, Respondent attempted to explain the July visit by stating that the touching A.S. contended was inappropriate was actually part of a physical examination related to her back pain. However, A.S.’s description of Respondent’s actions does not remotely match the description by any doctor who testified of what constitutes an appropriate examination for back pain. Dr. Waldbaum testified that a good examination of the low back would start with seeing how the patient walks and observing the patient standing up. A physician would look at the patient’s posture, check for scoliosis or curvature of the spine, and would check the patient’s range of motion. The physician would perform a neurologic examination to check for things like strength in the patient’s legs and reflexes. He or she would then palpate the back, including palpating down the middle, along the bones of the spine, the paraspinal muscles, and the hips. The physician would evaluate the structures going below the belt line in the back, the muscles in the gluteal area. He or she would push gently to palpate the area. Respondent proffered the testimony of Drs. Risch and Cordera on the same issue. While their testimony was not considered because neither doctor had been noticed as an expert in this proceeding, their testimony was similar to Dr. Waldbaum’s with respect to a proper examination. Had their testimony been considered, it would only serve to reinforce the testimony of Dr. Waldbaum. What A.S. credibly described was not an examination of her back consistent with this testimony. The more persuasive and compelling testimony establishes that on three separate occasions, Respondent touched A.S. inappropriately by hugging her, by squeezing her breast, and by caressing her buttocks. Hugging a patient is not within the scope of the professional practice of medicine. Squeezing a female patient’s breast outside the context of a breast examination is likewise not within the scope of the professional practice of medicine. Caressing a patient’s buttocks is not part of an examination of a patient’s back for pain, and is not within the scope of the professional practice of medicine. Patient C.T. Patient C.T. saw Respondent on one occasion. She went to JMG and Dr. Dehgan for pain management related to her history of avascular necrosis, a condition in which the bone marrow in the joints deteriorates, causing pain. C.T. suffers with pain primarily in the hips, knees, shoulders, and ankles. When she presented to Dr. Dehgan, she was 46 years old. During C.T.’s visit, Respondent examined her back. While it was reasonable for Respondent to examine her back given her physical condition, he lifted her shirt to check her spine without letting her know that he was going to do so, which caught her by surprise. What is more troubling is that at the end of the appointment, a medical assistant came in and left some paperwork on Respondent’s desk, and then left the room. Respondent and C.T. were standing face to face. When she went to leave, he bent down, placed his hand at the small of her back, and kissed her in her ear, with his tongue going into her right ear. C.T. was stunned, and did not know what to do, so she patted him on the back. No one else was in the room, and the door was closed. Her focus at this point was to leave as quickly as possible, so she took her appointment card and exited the room. At the front desk, she told whoever could hear her that she would not be returning, and went to her car to call her adoptive mother. She called the office to speak to a supervisor, but none was available. C.T. did not know any of the other patients who testified in this proceeding. She filed a complaint with the Department of Health because she believes that what Respondent did was wrong. She interpreted his actions as sexual and is no longer trustful of male physicians. C.T.’s testimony was clear, consistent, direct, and compelling. Respondent tried to undermine her credibility by dredging up a variety of painful episodes in her distant past, and emphasizing her mental health diagnoses. In his Proposed Recommended Order, he states: What C.T. did not tell Dr. Dehgan is interesting. She did not tell Dr. Dehgan that she had been raped. She did not tell him that six days prior to seeing him she was treated at Flagler Hospital in St. Augustine, for vertigo, right shoulder and right arm pain, subsequent to a slip and fall accident occurring August 3, 2014. She did not tell Dr. Dehgan that she has post traumatic stress disorder. She did not tell Dr. Dehgan that she had Attention Deficit Hyperactivity Disorder. She did not tell Dr. Dehgan that she had asthma. She did not tell Dr. Dehgan that she had anxiety, anxiety with panic attacks, and depression. She did not tell Dr. Dehgan that she was, and that she had been, a patient for many years under the care of psychiatrist Dr. Emmanuel Martinez. She did not tell Dr. Dehgan that she lost 75 pounds in a period of 18 months. She did not tell Dr. Dehgan that on numerous occasions, she had tried to commit suicide. First, with respect to some of the history Respondent claims that C.T. omitted, there is not necessarily a question on the patient history form that she completed that would have required the information to be provided. The form was focused on the reason a patient presented to JMG, and, for the most part, included questions regarding prior treatment that a patient has received for the pain that caused him or her to seek treatment for pain management. It did not, for example, ask about prior hospitalizations in general, but rather, only asked about prior surgeries. Second, Respondent’s statements about C.T.’s purported non-disclosures in many respects are false. Consultation with a psychiatrist or psychologist related to the pain was disclosed on page 4 of the patient form, at Joint Exhibit 3, page 16. Asthma was checked on the same form at page 5, as was C.T.’s disclosure of anorexia, now recovered. At page 7 of the same form, C.T. disclosed that she has received treatment for depression and anxiety, provided Dr. Emmanuel Martinez’s name and telephone number, and further indicated that she saw him every two months. The form made no inquiry regarding suicide attempts, and had no question for which an answer disclosing them would be responsive. Respondent seemed to think that anyone with a history of mental illness is automatically a suspect witness who cannot be believed. There is no support for such a contention in this record. C.T.’s mental health history from ten years prior to this incident simply has no relevance to her testimony in this case. C.T.’s only memory difficulties at hearing were listing which medications she had taken over the years, as she did not have her medication list with her. Her reluctance to discuss issues related to her mental health, especially issues related to events over ten years old, did not impugn her credibility as a witness. Her memory of the events giving rise to this case was clear and credible, and is accepted. It is never within the scope of professional practice for a physician to place his tongue in the ear of a patient. Respondent presented the testimony of three individuals with whom he has worked who all testified concerning his character and his general demeanor with patients. Thomas Pulzone worked at Orthopedic Associates of St. Augustine, and knew Dr. Dehgan through his association with that practice prior to working with JMG. Mr. Pulzone thinks highly of Respondent. However, he never directly observed Respondent conduct an examination of any patient, and his contact with Respondent since Respondent left Orthopedic Associates has been limited to a few telephone calls. Dr. Edward Risch is an orthopedic surgeon from whom Respondent rented office space for approximately ten years. Dr. Risch has not worked with Respondent since 2010 and never directly observed Respondent’s examination of female patients. Dr. Diana Cordero worked with Dr. Dehgan for approximately six months of the time he was at JMG, and shares space at his current practice location. Her work with Respondent at JMG was limited, and she never saw him examine a patient. There is no evidence that she, like Respondent’s other witnesses, was present when any of the events giving rise to this case took place. Respondent tried to impeach the testimony of each patient based on inconsistencies between her recollection of her treatment by Dr. Dehgan and what was contained in his medical records for each of them. It was never established that any of the patients had reviewed her medical records. More importantly, it was never established that what was written in those records was an accurate statement of the care and treatment actually given. For example, Respondent testified that he would perform a comprehensive examination for a first visit, but not for follow-up visits. The medical records seem to indicate a comprehensive visit was performed every time, and all three patients did not recall much of an examination at all. Respondent testified that he would not generally perform a Babinski test (a test of a patient’s reflexes by scratching the bottom of his or her foot) for a follow-up Suboxone appointment, yet this test was routinely referenced as completed in Respondent’s medical records. Given the marked disparities between all three patients’ memories of their appointments and the contents of the medical records, as well as the internal inconsistencies noted in A.S.’s records, Respondent’s medical records appear to be less than reliable. Accordingly, they do not provide a basis for discounting the testimony of the three patients whose testimony was clear, consistent, and compelling.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding that Respondent violated sections 456.072(1)(v) and 458.331(1)(j), as alleged in the Amended Administrative Complaint. It is further recommended that the Board issue a letter of reprimand against Respondent’s license; suspend his license for a period of three years, followed by five years of probation; impose a permanent restriction that Respondent may not examine or treat female patients without a licensed health care provider in attendance; require completion of a medical ethics course prior to reinstatement of his license; and impose an administrative fine of $30,000. DONE AND ENTERED this 31st day of August, 2016, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2016.
Findings Of Fact At all times material hereto, Respondent has been a physician licensed to practice in the state of Florida, having been issued license number ME 0044173. She practiced medicine in Key West, Florida, from 1985 through June 1993 when she closed her office as a result of a family problem and moved to West Virginia. She is licensed as a physician in West Virginia and currently practices medicine in that state. Respondent is Board-certified in internal medicine. In April 1993, Petitioner's pharmacy inspector responded to telephone calls from pharmacists in Key West concerning Respondent's prescribing practices by traveling to Key West and reviewing pharmacy records of Respondent's patients. One of Petitioner's investigators thereafter collected and compiled copies of computer printouts from six pharmacies listing prescriptions filled for seven of Respondent's patients. Respondent had worked at a clinic where she experienced approximately 15,000 patient visits per year. After determining that Respondent had prescribed what he considered to be an inordinate amount of controlled substances, Schedule II narcotics, the investigator wrote to Respondent advising her that an investigation had been commenced. In July, Respondent telephoned him and advised him that she had relocated to West Virginia. The investigator asked her for the medical records for the seven patients he questioned, and Respondent advised him that in conjunction with her closing her practice and relocating, she had given their medical records to approximately 500 of her patients so they could take them to other physicians and continue receiving their medical care, and those records not picked up by patients had been sent to a Dr. Garriques to be the custodian of those records. Of the seven medical records requested by the investigator, six of them had been given to the patients, and the seventh had been transferred to Dr. Garriques. Respondent admitted that she had not personally kept either the originals or copies of the medical records of her patients. The investigator subsequently telephoned Sun Belt Clinic where Respondent had worked and was told that Respondent's medical records were not there because she had given them to her patients. In December 1993, the investigator issued a subpoena to Sun Belt Clinic for Respondent's medical records and received nothing. Petitioner has made no further effort to obtain the medical records of the patients involved in this proceeding. Controlled substances are categorized by the Drug Enforcement Agency in five different schedules according to their potential for abuse. Schedule I substances are illegal. Schedule II substances, although considered highly addictive, can be prescribed by licensed physicians for medical purposes. Schedule II substances can be narcotic (opiates administered for pain) or non- narcotic. Schedule II narcotics include morphine (morphine sulfate), methadone (dolophine), dilaudid (hydromor-phone), and oxycodone (percodan and percoset). Dexedrine is also a Schedule II controlled substance. Although morphine is the most potent narcotic available in the United States, only approximately 10-20 percent of it is absorbed, when ingested. Methadone is available in government-run clinics for the treatment of heroin addiction. Methadone is also a bona fide treatment for pain. Pursuant to the statutes regulating the conduct of registered pharmacists in the state of Florida, pharmacists are not permitted to dispense methadone for addiction; rather, pharmacists can only dispense methadone as a pain medication. At least one doctor in Key West, other than Respondent, prescribes methadone for pain, and a local hospital there has begun using methadone to treat pain on an in- patient basis. L.P., one of Respondent's patients, is a narcoleptic. Narcoleptics need a stimulant, such as dexedrine or ritalin, to function normally. Before seeing Respondent, L.P. had been "worked up" at Stanford and was taking a maintenance dosage of dexedrine. Between September 11, 1992, and June 1, 1993, Respondent prescribed dexedrine, 15 mg., for L.P., the same dosage L.P. was on before and after being Respondent's patient. The amount and frequency of dexedrine prescribed by Respondent for L.P. is within the range recommended by the Physician's Desk Reference and was an appropriate treatment for L.P.'s narcolepsy. Persons suffering from chronic pain (as opposed to acute episodes of pain) for which there is no cure or treatment available that can alleviate the person's pain are said to suffer from "intractable pain." There are two types of patients who suffer from intractable pain. The first group are patients with terminal, irreversible illnesses, such as cancer patients. Physicians generally give those patients whatever narcotics they need to alleviate the pain during the end stage of their lives. The second group is composed of patients who suffer from non-terminal disease processes who have tried different specialists and treatments available without achieving relief from their chronic pain. Those persons are generally not treated in family practice settings but rather are referred to pain management centers or pain clinics, in locations where such are available, to have their pain alleviated by treatments such as receiving morphine implants or having doctors perform nerve blocks. Many physicians avoid caring for patients who require Schedule II controlled substances to alleviate their suffering. The United States Department of Health, Education and Welfare, through its Agency for Health Care Planning and Research, has established national guidelines for treatment of moderate to severe pain in cancer patients, using Schedule II narcotics. The guidelines are written as a starting dose for opiate-naive adults, i.e., adults who have never before taken opiates. The guidelines further indicate that adults who are not opiate-naive may need a stronger dose. Although none of Respondent's other five patients involved in this proceeding were cancer patients, they suffered from intractable pain. Respondent prescribed narcotics for them within the guidelines recommended to relieve intractable pain in cancer patients. The Agency for Health Care Planning and Research recommends for moderate to severe pain a starting dose of dilaudid of 6 milligrams every three to four hours with a maximum recommended dose of 24 milligrams a day. It recommends a starting dose for moderate to severe pain for methadone or dolophine of 20 milligrams every six to eight hours with a maximum of 80 milligrams a day. For morphine, Agency guidelines recommend a starting dose of 30 milligrams every three to four hours. As to those five patients discussed hereinafter, Respondent saw each of them two times a week when they came to her for their prescriptions. In that way, she was able to monitor them closely and write prescriptions for limited quantities of medication. Sometimes, she saw those patients more often since the pharmacies in Key West were not able to stock supplies of narcotics as easily as non-narcotic medications. If a patient brought a prescription for such narcotics to a pharmacy and the pharmacy had an insufficient quantity in stock to fill that prescription, the patient could go elsewhere or could take the quantity the pharmacy had in stock. Under that circumstance, the prescription for the full quantity would be cancelled, and the patient would return to Respondent to get an additional prescription in order to have the full dose prescribed by Respondent. Respondent treated J.P. for six years for migraine headaches on an indigent basis. J.P. could not afford a CAT scan, and there were no other resources in Key West available to him for further work-up at no cost. Respondent based her treatment plan on her best clinical judgment and a complete physical examination. She tried Midren and other anti-inflammatory medications first. She prescribed percoset for three or four years. She then tried dilaudid. She prescribed dilaudid, 2 mg. from March 19, 1992, through April 23, 1992. She then prescribed dilaudid, 4 mg., from April 30, 1992, through August 17, 1992. From September 3, 1992, through November 30, 1992, she prescribed dolophine, 10 mg. On December 4, 1992, she changed J.P.'s treatment, prescribing morphine, 30 mg., through January 29, 1993. Pharmacy records reflect other medications thereafter, with a prescription for 15 dilaudid, 4 mg., on March 24, 1993, followed by 8 morphine sulfate tablets, 30 mg., on May 21, 1993; 5 percoset tablets on May 31, 1993; 15 morphine sulfate tablets, 30 mg., on June 4, 1993; and 5 percodan tablets on June 7, 1993. Although J.P. filled Respondent's prescriptions at several pharmacies, for example using three different pharmacies during the month of January 1993, the total amount of medication prescribed by Respondent was within the federal Agency guidelines. Respondent's prescribing practices as to J.P. were appropriate and not excessive. Over the course of her treatment of J.P., Respondent observed him change from a "non-functional" person to a functional person who was able to hold a job as a chef when his pain was relieved. Respondent treated M.G. for AIDS-related cluster headaches, which are very intense. He was also grieving for his girlfriend who had died of AIDS. Respondent treated him with dilaudid, which made him pain-free most of the time, and, in addition, he learned relaxation techniques to help deal with his pain. Respondent maintained him on a dosage of dilaudid, 4 mg., from December 28, 1992, through early March 1993. The quantity of dilaudid prescribed by Respondent was within the federal Agency guidelines, and was appropriate and not excessive. While taking dilaudid, M.G. was able to work four days a week as a taxi dispatcher. Respondent treated C.D. for chronic severe pain resulting from connective tissue disease. C.D. also suffered from intermittent gland swelling. Respondent unsuccessfully tried numerous anti-inflammatory medications in treating C.D., and he was treated by a rheumatologist in Miami without benefit. Respondent placed him on a maintenance treatment plan of 100 mg. a day of morphine and kept him at that level. Pharmacy computer printouts reveal C.D.'s morphine treatment commencing in February of 1992 and continuing into mid-June 1993. His functioning improved so that he was able to obtain a job as a taxi driver and once again start playing his guitar in a band. The maintenance program Respondent instituted for C.D. was within the federal Agency guidelines and was appropriate. Respondent treated J.B. for six years for multiple orthopedic problems and back pain. J.B. was not opiate-naive. He had been severely abused as a child and started taking narcotics at the age of two when he suffered a broken arm and severe burns to his hand as a result of his father's behavior. Respondent wrote alternating prescriptions for methadone, dolophine, and morphine for J.B. from December of 1991 through mid-June 1993. He remained on the same dosage. When seen in the community, J.B. was clean, spoke coherently, walked in a straight line, and dressed appropriately for Key West. Although the mixture of prescriptions and the dosage amounts Respondent prescribed for J.B. were substantial, her prescribing practices for J.B. were within the federal Agency guidelines and were appropriate. Respondent treated P.P. from 1986 through 1993 for severe sinusitis. P.P. also developed severe low back pain (sciatica). Respondent took a back x- ray, administered physical therapy, and referred P.P. to a hypnotist. Respondent wrote on prescriptions which she gave to P.P. that her diagnosis was a herniated disc. Respondent started her on dilaudid, 2 mg., in February 1992 and continued that regimen through January 1993. She also prescribed percoset and valium, 5 mg., for the severe back pain and muscle spasm. She also prescribed an anti-inflammatory for the stomach upset resulting from the narcotic. Respondent's prescribing practices as to P.P. were within the federal Agency's guidelines and were appropriate. In her treatment and prescribing practices for L.P., J.P., M.G., C.D., J.B., and P.P., Respondent kept detailed records, in part due to her concern that she might become the subject of criticism by Petitioner. Such records were not, however, offered at hearing by either party. The prescribing of controlled substances to the patients involved in this proceeding was done in the course of Respondent's professional practice.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against her in this cause. DONE and ENTERED this 1st day of June, 1995, at Tallahassee, Florida. LINDA M. RIGOT, 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 1st day of June, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-3 and 22 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 4-21, 23, and 24 have been rejected as not being supported by the weight of the credible evidence in this cause. Respondent's fifth unnumbered paragraph has been adopted either verbatim or in substance in this Recommended Order. Respondent's fourth unnumbered paragraph has been rejected as being irrelevant to the issues involved herein. Respondent's first, second, third, sixth, and seventh paragraphs have been rejected as containing only argument. COPIES FURNISHED: Steven Rothenburg, Esquire Agency for Health Care Administration Suite 210 9325 Bay Plaza Boulevard Tampa, Florida 33619 Katherine Anne Hoover, M.D. Route 2 Box 203 Lost Creek, West Virginia 26385 Dr. Marm Harris, Executive Director Board of Medicine Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0770 Tom Wallace, Assistant Director Agency for Health Care Administration Suite 301 The Atrium 325 John Knox Road Tallahassee, Florida 32303
The Issue Whether Faith Lapp, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Linda J. Davidson Lapp is the natural mother and guardian of Faith Lapp, a minor. Faith was born a live infant on January 27, 1998, at Arnold Palmer Hospital for Children & Women (Arnold Palmer Hospital), a division of Orlando Regional Healthcare System, Inc., a hospital located in Orlando, Florida, and her birth weight exceeded 2,500 grams. The physicians providing obstetrical services at Faith's birth were Penny A. Danna, M.D., and Steven Carlan, M.D., who, at all times material hereto, were "participating physician[s]" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Faith's birth At or about 1:25 a.m., January 27, 1998, Mrs. Lapp (with an estimated date of delivery of January 22, 1998, and the fetus at 40+ weeks gestation) presented to Arnold Palmer Hospital, in labor. At the time, Mrs. Lapp's membranes were noted as intact, and vaginal examination revealed the cervix at 4 centimeters dilation, effacement complete, and the fetus at -1 station. Contractions were noted as mild, at a frequency of 2-3 minutes, with a duration of 40 seconds, and fetal monitoring revealed a reassuring fetal heart rate, with a baseline in the 130 beat per minute range. From 1:25 a.m. until 5:00 a.m., when her membranes spontaneously ruptured, Mrs. Lapp's labor progress was steady, and fetal monitoring continued to reveal a reassuring fetal heart rate. Thereafter, to 7:05 a.m., when vaginal examination revealed Mrs. Lapp complete, monitoring continued to reveal a reassuring fetal heart rate, with a baseline in the 150 beat per minute range, and variable decelerations, with contractions, and a good return to baseline. At 7:20 a.m., Mrs. Lapp was noted as pushing, with contractions, and variable decelerations continued without significant change until approximately 8:40 a.m., one hour prior to delivery, when fetal heart rate decelerations became persistent. Thereafter, at 9:25 a.m., the baby was noted to crown; at 9:34 a.m., the baby was noted as bradycardic with a fetal heart rate in the 70 beat per minute range; and at 9:36 a.m., the baby's head was noted as delivered, with the fetal heart rate continuing in the 70 beat per minute range. Delivery was complicated by a shoulder dystocia, and at 9:38 a.m., the labor and delivery record reveals the baby was not yet delivered, and the fetal heart rate was persisting in the 70 beat per minute range. Thereafter, at 9:40 a.m., Faith was delivered. At delivery, Faith was severely depressed (without respiratory effort, reflex, or muscle tone; a color consistent with central cyanosis; and a heart rate under 60 beats per minute), and required resuscitation (ambu bagging with 100 percent oxygen, cardiac compression for 20 seconds, and intubation). Apgar scores were recorded as 1 and 6, at one and five minutes, respectively,1 and cord pH was recorded at 7.28. Following delivery, Faith was transported to the neonatal intensive care unit (NICU), where she remained until January 31, 1998, when she was discharged to her parent's care. Faith's hospital course was summarized in her Clinical Resume (discharge summary), as follows: History . . . . Term newborn female, birth weight 4449 gm, born on 01/27/98 at APHCW. Mother is a 39- year-old gravida 2, para 1, 0 positive, maternal screens negative, uncomplicated gestation, 40+ weeks gestation, rupture of membranes 4 hr., 40 min. prior to delivery. Difficult extraction, vaginal delivery, epidural anesthesia, nuchal cord times one. During process of extraction, left fracture of the humerus. Baby cyanotic and apneic, heart rate 40-60, Ambu bagged with 100%, cardiac compressions given, intubated at one to 1-1/2 min. of life, with 3.5 cm ET tube, responded with 100% 02 by bagging, re- intubated due to air leak with 4.0 ET tube at 7-10 min. of age. Apgars 1 at one min., 6 at five min., cord pH 7.28, birth weight 4449 gm, temperature 98.8?, Accu-Chek 72, mean blood pressure low 30s. Hematocrit 49%. PHYSICAL EXAMINATION: Alert, molding of the head, bruising of the scalp. Pupils reactive to light. Nose and throat normal. Lungs coarse. No murmur. Abdomen soft. Liver 2 cm below right costal margin. Cord - 2 arteries, 1 vein. Female genitalia. Anus patent. Passing meconium. Spine normal. Left arm with swelling and tenderness at fracture site. Decreased tone and reflexes. Poor perfusion. IMPRESSION: Post mature, 41 weeks female Neonatal depression, post difficult delivery. Aspiration. Rule out sepsis. Hypovolemia. Left humerus fracture. PROBLEM LIST: Problem #1: Post mature, 41 weeks female. Problem #2: Neonatal depression. Infant required 100%, pressures of 23/3 and an IMV of 30; pH 7.4, pCO2 22, PO2 393, base excess -8.1. Weaned and extubated to room air by day one. No apnea nor bradycardia. Monitor discontinued. Problem #3: Rule out sepsis. Treated with ampicillin and gentamicin times 72 hr. Blood culture negative. Problem #4: Fracture of the left humerus. Orthopaedic consult obtained, infant was splinted, now is positioned with left upper extremity pinned across chest and is comfortable. For follow-up with Dr. Topoleski. Problem #5: Neurologic. A CT scan of the head shows some central subdural bleeding along tentorium and falx cerebri, small amount, slightly prominent extra-axial space left temporal region.[2] Problem #6: Miscellaneous. Passed ABR hearing screening exam. Annual follow-up is recommended. Infant screening was done 01/28/97. Problem #7: Fluids/electrolytes/nutrition. Feedings were begun on day 2, and advanced. Infant is tolerating ad lib feedings of maternal breast milk or Similac-20 with iron, and nippling well. Physical examination, 01/31/98: Four days of age. Weight 4555 gm, head circumference 33.25 cm. Pink. Anterior fontanelle soft. No murmur. Lungs clear. Abdomen soft and full. Neurologic appropriate. Left arm positioned as noted above. * * * FINAL DIAGNOSIS: Post term, 41 weeks female. Neonatal depression. Rule out sepsis. Left fractured humerus. Subdural bleeding. Follow-up CT scan on March 25, 1998, showed resolution of the subdural hemorrhage. Specifically, the CT scan was read, as follows: The ventricles are normal in size and configuration. There is no midline shift. The attenuation characteristics of the brain are within normal limits for the patient's age and state of maturity. No extra-axial fluid collections are identified. The hemorrhagic changes described on the study of 01/30 have cleared. IMPRESSION: CT appearance of brain within normal limits. Faith's subsequent development Following discharge from Arnold Palmer Hospital, Faith was followed for a number of evolving irregularities. Pertinent to this case, insight into the complexity of her presentation can be gleaned from some observations by a few of Faith's physicians: Michael Pollack, M.D., a pediatric neurologist; Eric Trumble, M.D., a pediatric neurosurgeon; and Harry Flynn, Jr., M.D., an ophthalmologist. Dr. Pollack initially evaluated Faith on March 30, 1998, and described his impressions, as follows: . . . Parents have observed that the patient does not follow although she appears to respond to light. She has been evaluated by Dr. Gold and Dr Richmond and apparently has retinal detachment . . . . A recent film of the patient's left arm apparently demonstrated that her humeral fracture is healing satisfactorily. * * * A recent CT scan of the head shows resolution of posterior fossa hemorrhage. In addition, the fluid collection over the left temporal region has largely disappeared but the left-sided subarachnoid space does remain larger than the right. Physical examination includes a weight of 14 pounds and a head circumference of 35.5 cm. The forehead appears underdeveloped and the head is small in relation to the face. Anterior fontanel is closed. There is ridging of coronal and sagittal sutures. Slight flattening of the right occiput is present and there is corresponding alopecia . . . . IMPRESSION: Perinatal craniocerebral trauma and probable hypoxic ischemic encephalopathy. Retinopathy by history. Evolving microcephaly versus craniosynostosis: Primary microcephaly (failure of the head to grow because of poor brain growth) appears more likely than craniosynostosis . . . . Dr. Pollack summarized his September 29, 1998, evaluation, as follows: Faith is an 8-month-old girl who was initially evaluated in my office 3/98 because of visual impairment and suspected seizures. Her diagnoses include perinatal craniocerebral trauma and a possible hypoxic ischemic encephalopathy. In addition, she had a congenital retinopathy. Her diagnoses at Bascom Palmer Institute were: (1) congenital bilateral retinal detachment and (2) variation of persistent hyperplastic primary vitreous or persistent fetal vasculature bilaterally. Her MRI scan of the head showed an abnormality of the rostrum of the corpus callosum which was thought to fall in the spectrum of septo- optic dysplasia. Her condition, therefore, appears to be due to a combination of congenital anomalies and perinatal factors . . . . In the past few months, the patient has undergone . . . [repair of metopic synostosis]. Although the shape of her head has improved, her head circumference has remained below the 5th percentile, supporting the view that primary microcephaly rather than craniosynostosis was responsible for the small head size in this patient. In addition, ptosis of the right upper lid developed postoperatively. * * * PHYSICAL EXAMINATION: Includes a length of 26.5 inches, weight 18-3/4 pounds, head circumference 38.5 cm. The head appears small in relation to the face. There is unilateral occipital flattening . . . . IMPRESSION: Severe nonprogressive encephalopathy due to perinatal factors as outlined above and a congenital anomaly of the central nervous system. There is severe visual impairment which is due to a retinal anomaly . . . . Her residual microcephaly suggests that deficient brain growth rather than craniosynostosis was responsible for her small head size . . . . Development is globally delayed. The combination of microcephaly, congenital CNS anomalies, visual impairment and global developmental delay in this patient suggests that she is likely to function in the trainable mentally handicapped range. Her motor attainment to date implies that she will walk independently. Following September 29, 1998, Faith was seen by Dr. Pollack on July 21, 1999; April 3, 2000; and July 17, 2001, during which there was no apparent change in Dr. Pollack's impression. Thereafter, the record suggests that following Faith's last visit with Dr. Pollock, her neurology issues were followed in Miami; however, there is no evidence of record regarding those evaluations, if any.3 Following discharge from Arnold Palmer Hospital, Faith was also seen by Dr. Trumble and had serial workups for craniosynostosis. That diagnosis was rejected July 9, 1998, when "a head CT with 3-D reconstruction . . . revealed all sutures to be open with the exception of her metopic suture, which was supposed to be closed at this age." Faith did, however, have "metopic synostosis with a small palpable ridge," which was repaired on July 29, 1998. Faith apparently did well post-operatively, with the exception of right eye ptosis. Of note, an uncontrasted CT scan was reviewed by Dr. Trumble in March 1999, which he noted: "identifies normal morphology without evidence of increased CSF spaces or definite atrophy." On April 20, 1998, Faith's ophthalmologic problems were evaluated by Dr. Flynn, professor of ophthalmology at Bascom Palmer Eye Institute, Miami, Florida. Dr. Flynn described his impressions as follows: . . . [Faith] was examined on 4/20/98 regarding her retinal detachments in both eyes. . . . [The patient] had a traumatic delivery that involved extensive facial, cranial and subconjunctival hemorrhages. The patient has brought with her multiple studies including X-rays, CT scans and other studies that have been reviewed and are present on the chart. The patient is being referred regarding the possibility of any surgical therapy for this patient with bilateral retinal detachments. The ocular examination showed no recordable visual acuity although there did appear to be a response to light in each eye. The pupillary reaction showed a 1+ response to direct light in each eye. The tension by palpation was normal in both eyes. The anterior segment examination showed a white plague-like structure on the back surface of the lens in both eyes. The vitreous cavity was clear with no visible hemorrhage in either eye. The posterior segment examination showed total retinal detachment with dragging of the retina toward the inferior temporal quadrant in both eyes. The retinal folds were drawn forward as well to fibrous tissue inserting on the back surface of the lens. IMPRESSION: Congenital bilateral retinal detachment both eyes. Variation of persistent hyperplastic primary vitreous or persistent fetal vasculature both eyes. RECOMMENDATION: I discussed my findings with the patient [sic] and husband. I indicated that the retinal detachments were inoperable. I indicated that the changes present in the back of the eye could not have taken place in 2 1/2 months in spite of the extent of the trauma at delivery.[4] Apart from the impressions of Faith's treating physicians, some insight into Faith's development may also be gleaned from certain evaluations and testing by the Seminole County Public Schools; including a Report of Adoptive Behavior Testing, dated August 21, 2003. On that test, administered at age 5 years, 7 months, Faith's ability to care for herself and interact with others ("Broad Independence") was measured based on an average of four areas of adaptive functioning: motor skills, social interaction and communication skills, personal living skills, and community living skills. There, Faith's motor skills, which included gross and fine motor proficiency tasks involving mobility, fitness, coordination, eye-hand coordination, and precise movements were said to be comparable to an individual at age 3-1 (3 years, one month). However, the examiner noted the basis for such conclusion, as follows: When presented with age-level tasks, Faith's gross-motor skills are age-appropriate. Age-level tasks involving balance, coordination, strength, and endurance will be manageable for her. When presented with age-level tasks, Faith's fine-motor skills are very limited. Age- level tasks requiring eye-hand coordination using the small muscles of the fingers, hands, and arms will be extremely difficult for her. (Emphasis added.) (Intervenor's Exhibit 4.) Faith's motor skills were also evaluated by the Seminole Public County Schools, and noted in a Physical Therapy Assessment/Evaluation report, dated October 2, 2003, as follows: OBSERVATIONS: Faith was evaluated in a variety of educational settings. She was observed in the classroom, during an obstacle course in another classroom, on the playground and around the school campus. During the obstacle course observation, Faith was participating in tunnel creeping, rockerboard activities, basketball and balance beam walking. Throughout the evaluation, it appeared that Faith had difficulty with some motor tasks due to body and spatial awareness as well as with her speed and intensity of her movements. With this evaluator, Faith followed all directions and seemed eager to please. * * * FUNCTIONAL MOBILITY: Faith ambulates indepen[den]tly in all directions demonstrating a forward lurch, hiking type of gait pattern, head is bent forwards. She is able to walk in the halls, on ramps and on sand on the playground without falling. She is able to creep and knee walk independently. Rises from the floor using a half kneel pattern or through a backwards crab type of pattern. Lowers self to floor with control. Transfers in/out of all chairs independently but teacher reports she often trips over her own feet. Ascends the stairs using a reciprocal pattern without holding the rail, descends using step to step pattern holding the rail. GROSS MOTOR: Faith sits on the floor with good balance in a criss cross position or sidesit position. She low kneels but weight bears on her right side more than her left and high kneels with good balance. She squats to pick an item up off the floor. Is able to jump off the floor and jumps on the trampoline at least 5 times in a row. She is able to walk on the balance beam taking 3 steps independently and attempts to walk backwards on it. On the playground, she is able to climb all structures independently with supervision. Within the school environment, Faith is able to push/pull her exterior doors and turn knobs of all interior doors. FINE MOTOR/VISUAL MOTOR: . . . According to notes from OCPS records, Faith may exhibit some visual motor issues as well as the visual impairment already noted. (Intervenor's Exhibit 4.) Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as in "injury to the brain . . . caused by oxygen deprivation or mechanical injury, occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. In this case, Petitioner and Intervenor are of the view that Faith suffered a "birth-related neurological injury," as defined by the Plan. In contrast, NICA is of the view that Faith did not suffer a "birth-related neurological injury" since her neurologic impairments are, more likely than not, prenatal (developmental) in origin, and resulted from cerebral malformation, as opposed to brain injury caused by oxygen during labor, delivery, or resuscitation. Moreover, NICA is of the view that Faith is not permanently and substantially mentally and physically impaired. The cause and timing, as well as the significance of Faith's impairment To address the cause and timing of Faith's impairments, as well as their significance, the parties offered the records related to Faith's birth and subsequent development, portions of which have been addressed supra (Joint Exhibits 1-4, and Intervenor's Exhibit 2); a color photograph of Faith taken several hours after her birth (Petitioner's Exhibit 1); the deposition of Leon Charash, M.D., a physician board-certified in pediatrics, who practices pediatric neurology (Intervenor's Exhibit 1); the deposition of Donald Willis, M.D., a physician board-certified in obstetrics and gynecology, as well as maternal-fetal medicine (Respondent's Exhibit 1); and the deposition of Michael Duchowny, M.D., a physician board- certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology. (Respondent's Exhibit 2.) Dr. Willis, whose deposition was offered on behalf of NICA, was of the opinion that the birth records failed to support a conclusion that Faith suffered a brain injury from oxygen deprivation during labor or delivery, but offered no opinion regarding the likelihood of brain injury from oxygen deprivation during the course of resuscitation or from trauma associated with Faith's delivery. Dr. Willis expressed the basis for his opinions, as follows: BY MS. WRIGHT: * * * Q. After reviewing the records in this case, do you have an opinion within a reasonable degree of medical probability as to whether or not Faith Lapp qualifies for compensation under the NICA criteria you just described? * * * A. Yes, it was my opinion that there did not appear to be a loss of oxygen that occurred during labor or delivery that would result in this child's injury. * * * Q. Doctor, would you tell us how it is that you reached such an opinion as that? A. Yes. I reviewed the fetal heart rate monitor strips, which do show fetal heart rate decelerations during the latter few hours of labor. Although they're not persistent decelerations until about the last hour before delivery, and then the fetal heart rate tracing does show persistent variable decelerations . . . . The Apgar scores that the baby had were low, the Apgar score was one and six. Of course, the baby had -- there was a shoulder dystocia at birth resulting in a very difficult delivery. However, the umbilical cord blood gas was normal with a pH of 7.28. And the baby had a course in the hospital that did not suggest an ischemic event during labor or delivery. In other words, did not have seizures in the post-delivery period, no other organ failure like renal failure, hypotension, those types of things, and was discharged home on the fourth day. So looking at all of that, I felt there was not oxygen deprivation during labor or delivery. Q. . . . What is the significance of the fetal heart rate monitoring strips? A. Well, the fetal heart rate monitor strips are consistent with some degree of umbilical cord compression or variable decelerations prior to delivery, and all fetuses react differently to that. But certainly if the fetal heart rate decelerations persist and are significant, then it can lead to a baby that has lack of oxygen at birth. * * * Q. Dr. Willis, can you tell us the significance of the cord blood pH which you referenced earlier as being normal at 7.28? A. Right. Well, if a baby is born with a lack of oxygen, then they will have lack of oxygen and acidosis, which the two go together. And if the baby has lack of oxygen acidosis, then the cord pH should be low. If the umbilical cord blood pH is within normal limits, it would suggest that for whatever fetal heart rate decelerations or whatever Apgar scores that were present, that that wasn't a result of or did not cause or was not a result of lack of oxygen to the baby. * * * Q. Would you anticipate the pH to be abnormal if the deceleration that you saw on the fetal heart monitoring strips had continuously occurred? A. Well, the fetal heart rate monitor strip shows you that in a way that the baby is being stressed, but it doesn't really tell you if the baby is in distress. So different babies tolerate different amounts of fetal heart rate deceleration. So the bottom line here was the umbilical cord pH being normal. I felt that I could not say that those fetal heart rate decelerations that were present in that hour prior to birth really resulted in lack of oxygen to the baby. Q. In other words, you would have anticipated the pH score to be abnormal if the infant had been severely affected by the deceleration? A. That is correct. * * * Q. And the significance of the Apgar scores? A. Well, the Apgar score at one minute tells you how much resuscitation is going to be required for the newborn, and the one was simply one point for fetal heart rate. The baby at birth had no spontaneous respiration, it was pale and it was not moving, and the only points that the baby got -- therefore, was depressed at that time, and the Apgar score was one. The one- minute Apgar score is not a very good indicator of long-term neurologic development though. The five- and the 10 minute Apgar scores are better indicators for that. The Apgar score at five minutes was listed at six. That's still low. We consider Apgar score to be low if it is under seven. So a six is just under the cut-off. If the baby had an Apgar score of seven at five minutes, then it would have been considered a normal score . . . . * * * BY MS. LAPP: Q. [D]o you normally . . . [limit yourself as you did in this case]? A. Normally -- normally, in most cases, I don't limit myself as much as I am with your case. Q. You found that my case was -- A. I found it a little bit confusing. If I saw the fetal heart rate tracing that I saw here and the Apgar scores that I saw and if the cord pH was abnormal, or I didn't see a cord pH, then I would have assumed that there would have been hypoxia to this baby at birth. But the fact that the cord pH was so normal, I really have to stop and question that. So then with that -- and this happens in other cases. So with that then, I have to look and see what else. And from doing this for several years and practicing in my subspecialty, I know that babies that have hypoxic injury to the brain at time of birth or during labor frequently have seizures during the first hour or two after birth and many of the other things that we've talked about. So, for instance, if your baby would have had a seizure disorder an hour or two hours after birth and would have been hypotensive, I might have in that circumstance decided that I would have simply ignored the cord pH result because it wouldn't have fit everything that I see. Q. Could it be possible that . . . [it was] human error . . . ? A. That is why I look at many different things. Again, if I would have seen other things that would have been consistent with hypoxic injury to the brain at birth, then I would have said I am going to discard this cord pH because it just doesn't fit the rest of the picture. And so that is the reason I kind of limited myself to labor and delivery, because the baby is depressed after birth, and I really can't explain that. * * * Q. . . . When would she have had these seizures? A. It would have been after birth, relatively in a short period after birth. I guess what I'm trying to say is from a maternal fetal standpoint, the medicine that I practice, if I see a poor fetal heart rate tracing and a baby with low Apgars and then seizures two hours after birth and then a CT scan done at five or six days of life which shows a cystic structure -- shows maybe brain edema consistent with hypoxic injury, then that all becomes a very, very clear picture for me. In this case, unfortunately, the picture just was not so clear. Because of that, I wanted to limit myself to labor and delivery because I could not make such a clear picture of what happened after that. (Respondent's Exhibit 1.) Dr. Duchowny, whose deposition was also offered on behalf of NICA, was of the opinion, based on his review of the records and his neurologic evaluation of Faith on March 12, 2003, that Faith's impairments, more likely than not, resulted from cerebral malformation, as opposed to brain injury caused by oxygen deprivation during labor, delivery, or resuscitation, and that, regardless of the cause, Faith was not permanently and substantially mentally and physically impaired. Dr. Duchowny expressed the basis for his opinions, as follows: BY MS. WRIGHT: * * * Q. Could you tell me, after reviewing the records concerning the records of both Linda Lapp and also Faith Lapp, your review of all the records you've just named and your examination of Faith Lapp, if you have reached an opinion which is in the reasonable degree of medical probability as to whether or not Faith Lapp sustained permanent mental and physical impairment as a result of her labor and delivery? A. Yes. I believe that Faith does not have a substantial mental or motor impairment and that her neurologic disabilities were acquired in utero and not the result of a birth related neurological injury that occurred during labor, delivery or resuscitation in the immediate post delivery period. Q. Could you tell me what you base that opinion on, Doctor? A. That opinion is based on the medical records which indicated that Faith's labor and delivery were complicated by a fractured left humerus, but that her cord blood pH was normal; her Apgar scores of 1 and 6 were reasonably good; that she did not have findings in the post natal period which are consistent with either mechanical injury or severe hypoxia; and that her evaluations, including my examination, all suggested that the types of neurologic disabilities that she has resulted from developmental abnormalities which occurred during the time that the brain was forming in interuterine life. Q. Doctor, in examining Faith's records, would you comment on the blood cord results? A. Well, her cord pH of the blood gas was 7.28, which is essentially normal. There is no indication of any hypoxia at that point in time when the blood gases were drawn from the cord. Q. Would you comment--you said earlier that her Apgar was relatively normal at 1 and 6. What did you mean by that? A. An Apgar score of 1 at one minute is not an unusual finding in normal deliveries. It reflects obstetrical medication; and I think the important Apgar score is at five minutes, which for Faith was 6. While not being perfect, it certainly is a decent Apgar score and inconsistent with asphyxia. * * * Q. Well, you indicated after that, if I heard you correctly, that you didn't see any post delivery signs of hypoxia. A. That's correct. Faith did require some ventilatory support for the first day, but she never developed systemic signs of hypoxia, which might produce abnormalities of her heart, liver, kidney, lungs, or cardiovascular system. * * * Q. You indicate further that there was no evidence of mechanical injury. Could you tell us for the record what you mean by "mechanical injury?" A. Well, there was no evidence of mechanical injury to the central nervous system, meaning there was no trauma to the brain or spinal cord. Faith did have a left Erb's palsy, which indicates dysfunction in the brachial plexus. I believe this was mechanically induced, but it was outside the central nervous system. * * * Q. Let's now turn to your opinion that Faith does not suffer from a substantial and permanent mental or physical impairment. Could you comment on the reasons why you believe that to be your opinion? A. Yes. At the time that I evaluated Faith last March, she was five years old. She did have a short attention span, and she was an overactive child, but she was able to talk. Albeit with a speech delay, she was able to talk. In fact, could speak in short phrases. She seemed to be socially appropriate. And with some effort, one could actually complete the examination because there would be some interaction between Faith and myself. She wouldn't cooperate for all testing but much of the testing did in fact get done. * * * BY MR. THOMPSON: * * * Q. . . . [Y]ou . . . [agree] that you believe there are neurologic abnormalities. Correct? A. Yes. Q. When you say that they were acquired in utero, you think that those were something that developed prior to the birthing process? A. Yes. Q. Is that what you mean? A. Yes. Q. Do you have a name for whatever that process was that caused that? A. I believe it is cerebral malformation. Q. And is that a chromosomal problem? A. Not usually. Q. What's usually the cause of that? A. Unknown interuterine acquired factors. Q. You have stated that you agree that there were mechanical injuries to this child during the labor and delivery process, correct? A. Yes. Q. You said one evidence of that was the fractured humerus. Correct? A. Yes. Q. She had some abnormalities on CT scan, I believe, some sort of--I can look for it, but you may remember what it was. I've got it right here. "A central subdural bleeding along the tentorium and faux cerebrum of a small amount." Do you recall that CT scan of the head that was taken shortly after her birth? A. Yes. Q. Would you agree that that was the result of a mechanical injury to her head? A. Yes. * * * Q. Would you agree that the pH of 7.28 in the cord blood may not represent what her true level of acidosis was? A. No, I wouldn't agree with that statement. Q. Could that be a lab error? * * * A. Well, anything is possible; but given the Apgar score and given her ultimate clinical findings, I regard that cord blood pH as being accurate. Q. What do you account for her being cyanotic? A. She already had brain dysfunction in utero. So, if you take a newborn, whose brain is not normal, and you provide stress, their response is often abnormal. Q. . . . Would you agree that Faith's laboratory work after her birth did show evidence of problems with her liver? A. No. Q. Are you familiar with what her LDH was? A. Yes. It was elevated, but the rest of her liver functions were normal. Q. Was her AST normal? A. I would have to check. I don't believe it was significantly elevated. Q. Was her ALT abnormal? A. Again, there were mild elevations that I don't think were significant, as I recall. Q. I may have asked you this. I apologize if I have. You do agree that her hydrocephaly is a result of secondary atrophy, as opposed to some other reason? A. No, I don't agree with that. Q. But you disagree with Dr. Trumbull [sic] when he said that in his report of July 9th, 1998?[5] A. Well, you would have to ask Dr. Trumbull [sic] what he meant by that. But my understanding is that there were findings, there were abnormalities, but they would not be classified as atrophy. It would really be failure to develop, which is different. Q. How can you distinguish between atrophy and failure to develop? A. Well, atrophy implies at one point all the brain structures were normal, and then something happened to damage those structures. Developmental problems imply that they never developed correctly in the first place so they never assumed normal proportions. The findings that Faith had on her MRI are more consistent with developmental abnormalities to her brain, so I would not classify them as atrophy. (Respondent's Exhibit 2.) Dr. Charash, whose deposition was offered by Intervenor, and whose testimony was supportive of Petitioner's claim, did not examine Faith, although he was accorded the opportunity to do so,6 but based on the records, he was of the opinion that Faith suffered a "birth-related neurological injury." With regard to brain injury, Dr. Charash was of the opinion that Faith's injury had two components, lack of oxygen and trauma (mechanical injury). As for oxygen deprivation being a likely course of brain injury, Dr. Charash noted Faith's one-minute Apgar score, which reflected severe depression; the need for resuscitation; an increased number of nucleated red cells; a low bicarb; a likely false pH, since Faith was given a bolus of sodium bicarb on delivery without adverse effect; and evidence of kidney malfunction, with transient abnormalities in her liver enzymes. As for trauma, Dr. Charash noted the subdural hemorrhage (cephalohematoma), observed on CT scan at 3 days of age, a likely result of trauma during delivery, as well as the severe bruising of the head documented following delivery. Finally, as further evidence of likely brain injury, Dr. Charash noted that on delivery, Faith's head, at 33 1/4 centimeters, was normal, but within a matter of months failed to grow as one would expect, and that she is now microcephalic. Consequently, Dr. Charash concluded that Faith likely suffered brain injury during labor, delivery, and resuscitation caused by oxygen deprivation and mechanical injury. (Intervenor's Exhibit 1, page 18.) As for the neurological consequences associated with such injury, Dr. Charash offered the following observations: EXAMINATION BY MR. TOWNSEND: * * * Q. Did . . . the lack of oxygen or the trauma affect her mentally in any way? A. Yes. I think it has left her with certain physical stigmata and certain intellectual stigmata. She has certain physical injuries based upon her birth difficulties and she's been left with behavioral and cognitive and learning difficulties; yes. Q. And that's clearly set forth in the records that you've reviewed, the cognitive and the physical problems? A. Yes. Let me deal with them one at a time, if I may. Q. All right, sir. A. The Orange County Public Schools have evaluated her and they find her functioning at percentiles which are far below age expectations. For example, there's a report of the Highland Elementary School in kindergarten described on 8/21/03, it's one of many reports, but this brings us up to five years and seven months . . . . At this point in time she's five years and seven months old. Her ability for functional independence is that of a three-year old which puts her in the lower one tenth of one percent of the population, 0.1, which means that 99 people out of a hundred outscore her in that area. They give her a rating for motor skills. They think her motor skills are three years and one month at an age of five years and seven months, which, again, puts her in the profoundly retarded area in terms of her motor skills, precise movements, coordination, fitness, etc. They have another score of social interaction and communication. Again, she's equivalent in one area to a three year one month old, another area she can pass tests at two years and two months, she has great difficulty with tasks that approach four years and eight months. And so it goes. They basically conclude that in every area she averages out three years and no months. She's five years and seven months. This gives her a quotient of an aggregate of all other adaptive performance in the range of retardation . . . . There is a psychoeducational evaluation done at the Seminole County Public Schools. This is carried out when she's five years and seven months. . . . The conclusion here . . . is . . . that the child is performing in areas that range from the very low category in the WJ-111 cognitive battery. She's considered to be significantly deficient. She's in the second percentile in the Bracken, B-R-A-C-K- E-N, basic concept scale. She's in the fourth percentile in some other test. On the Stanford Binet, in her verbal ability she does better, she's at the 12th percentile, and that's not retarded. . . . Now, her physical problems are of great significance here and, frankly, I think they relate to what I've mentioned before, her problems with balance, equilibrium, coordination, some of which may be tangentially a consequence of her visual impairments, but it is my opinion within a reasonable degree of medical certainty that her major physical problem aside from the structural change in her brain which makes it abnormally very, very small is her blindness or her severe visual impairments. As noted, Dr. Charash was of the opinion that Faith's principal physical injury was her visual impairment, which rendered her substantially physically impaired, and that Faith's visual impairment resulted from bilateral retinal detachment that was caused by mechanical injury during delivery.7 (Intervenor's Exhibit 1, pages 21-31.) Consequently, if credited, Dr. Charash's testimony would support the conclusion that Faith suffered bilateral retinal detachment caused by mechanical injury that rendered her substantially physically impaired, and that such impairment did not result from a brain injury. Notably, other physicians who have examined Faith, as well as the Seminole County School System, have concluded that Faith's gross and fine motor skills, except to the extent they may be diminished because of her visual impairment, are age appropriate. Consequently, given the record, there is no competent proof to support a conclusion that Faith is permanently and substantially physically impaired, because of a brain injury. Here, the opinions of the experts offered by the parties, as well as the other proof of record, have been carefully considered. So considered, it must be resolved that, while Faith's delivery was traumatic and there is evidence to suggest that she may have suffered oxygen deprivation during labor, delivery and resuscitation, as well as mechanical injury, as evidenced by the cephalhematoma, the proof fails to support the conclusion that, more likely than not, any oxygen deprivation or mechanical injury she may have suffered resulted in significant brain injury, or that she is permanently and substantially physically impaired. In so concluding, it is noted that Faith's hospital course post-delivery was not consistent with Faith having suffered an acute brain injury; that the imaging studies do not reveal brain injury, (i.e., evidence of atrophy) and are therefore most consistent with cerebral malformation; that Faith's current deficits have a congenital basis, at least in part; that Dr. Duchowny, as opposed to Dr. Charash, examined Faith, and based on his training and experience is most qualified to address the neurologic issues in this case; and that Dr. Duchowny, as opposed to Dr. Charash, was most candid, and his opinions were most consistent with the other proof of record. Consequently, it is resolved that the more credible proof demonstrates that Faith's impairment, more likely than not, resulted from cerebral malformation, as opposed to brain injury caused by oxygen deprivation or mechanical injury during labor, delivery or resuscitation, and that, regardless of the cause, Faith is not permanently and substantially physically impaired.
The Issue The issues are whether Respondent violated Subsections 458.331(1)(m), 458.331(1)(q), 458.331(1)(t), and 458.331(1)(nn), Florida Statutes (2004),1 and Florida Administrative Code Rules 64B8-9.003 and 64B8-9.013(3), and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state department charged with regulating the practice of medicine pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes. At all material times to this proceeding, Dr. Heshmati was a licensed medical doctor within the State of Florida, having been issued license number ME84360. Dr. Heshmati is board-certified in Family Practice. In 2004, there existed a related group of three walk-in clinics, which included the Melbourne Walk-In Clinic (Melbourne Clinic) located in Melbourne, Florida; the Cocoa Walk-In Clinic located in Cocoa, Florida; and the Palm Bay Walk-In Clinic located in Palm Bay, Florida. During July through December 2004, Dr. Heshmati was working part-time as a physician at two of the walk-in clinics: Melbourne Clinic and Palm Bay Walk-In Clinic. During this same time period, he was also working part-time as an emergency room doctor in emergency rooms in Osceola and Kissimmee, Florida. In 2004, the Melbourne Police Department began an undercover investigation of the three walk-in clinics concerning the prescribing of controlled substances to patients of the clinics. The investigation was led by John Pasko, who had considerable experience in investigating pharmaceutical diversion cases. Mr. Pasko enlisted the assistance of four persons who acted as undercover operatives in the investigation. The undercover operatives were S.K.S., D.C., R.D.M, and J.E.B. S.K.S. was a detective with the Saint Lucie County Sheriff's Office and used the alias of Aaron Joseph for the investigation. D.C. is a licensed pharmacist and a practicing attorney. She did not use an alias during the investigation. R.D.M. is employed by the Department of Health and investigates allegations against health care professionals. She used the alias Stephanie Vzatek for the investigation. J.E.B. is a medical malpractice investigator for the Department of Health. The alias he used for the investigation was Jerry Thompson. For purposes of this Recommended Order, the undercover operatives will be referred to by the aliases they used, with the exception of D.C. who will be referred to by her initials. Each of the undercover operatives met with Mr. Pasko prior to presenting themselves at the walk-in clinics. The operatives were told to go to the clinics, to make general complaints of pain, such as back pain or headaches, and to be as vague as possible about their symptoms. The operatives were to ask for controlled substances for the pain. None of the operatives was actually experiencing the symptoms of which they complained. Each operative was wired with an electronic communication device prior to visiting the clinics for the purpose of recording the conversations that took place during the visits. Each operative was given money to pay for the visits in cash. At the end of each visit, the operatives returned to the police station for a debriefing and gave sworn statements concerning what transpired during their visits. Some of the taped recordings of the visits were inaudible, but the operatives were not aware of the problems with the tapes prior to giving their sworn statements. The operatives gave the prescriptions they received and the receipts for payments of their visits to Mr. Pasko. The prescriptions were never filled. Aaron Joseph first visited the Melbourne Clinic on July 9, 2004. He told the person in the reception area that he had back pain and wanted to see a doctor. Mr. Joseph was given some forms to fill out, which he did. He returned the forms to the person in the reception. Mr. Joseph was taken to the back of the clinic where he was weighed. He was placed in a room, where a woman in scrubs took his blood pressure and pulse. She advised him that his blood pressure was a little high. She asked why he was at the clinic to which he replied that he was a window washer and had a bad back. He told the woman that he was taking cholesterol medication. He also stated that he had no known allergies. Mr. Joseph was taken to another room, where he was seen by Dr. Heshmati. He told Dr. Heshmati that he washed windows for a living which required him to sit in a Bosun's chair for long periods of time, resulting in lower back pain. He advised the doctor that he had been taking a dose of hydrocodone in the mornings and another dose after work for two years for the back pain. Mr. Joseph told the doctor that he was under the care of a doctor in Fort Pierce, but that he was in Melbourne on a temporary job. He told Dr. Heshmati that he had had an MRI done in Ft. Pierce and that as soon as his boss let him have some time off he would go to Fort Pierce, get the MRI, and bring it to Dr. Heshmati. Dr. Heshmati asked Mr. Joseph to stand up and bend over. Mr. Joseph bent over and said, "ugh" after he bent over a little. Mr. Joseph's grunt when he bent over was a sign to Dr. Heshmati that Mr. Joseph did have pain in his lower back. He sat back down on the examining table, and Dr. Heshmati listened to his chest with a stethoscope, tapped Mr. Joseph's knees with the stethoscope, and rubbed Mr. Joseph's back, legs, and heels. Dr. Heshmati's records for Mr. Joseph's visit on July 9, 2004, indicate that Dr. Heshmati did a review of Mr. Joseph's systems and that the review did not reveal any coughing, congestion, Rhinorrhea, sinus pain, sneezing, sore throat, ear ache, nausea, vomiting, diarrhea, abdominal pain, chest pain, headache, dizziness, weakness, or numbness. The records do not document that Dr. Heshmati listened to Mr. Joseph's chest, tapped Mr. Joseph's knees, or rubbed Mr. Joseph's back, legs, and heels. Dr. Heshmati claims that a form recording his examination is missing from Mr. Joseph's file; however, his testimony is not credible given that the records of patients D.C. and Ms. Vzatek contained similar forms as the one used for Mr. Joseph's first visit. Mr. Joseph's history, as recorded on July 9, 2004, shows that he was not a smoker and did drink alcohol occasionally. Dr. Heshmati advised Mr. Joseph that his blood pressure was a little high and that they needed to keep an eye on it. It is not unusual for a patient who is experiencing pain to have a slightly elevated blood pressure. He diagnosed Mr. Joseph as having chronic back pain. Dr. Heshmati wrote Mr. Joseph a prescription for 30 tablets of Lorcet, 10-650 milligrams. The generic name for Lorcet is hydrocodone, which is a controlled substance with a potential for abuse and physical or psychological dependence. Dr. Heshmati told Mr. Joseph to refrain from heavy lifting and to use ice packs on his back. Mr. Joseph was to return as needed. Mr. Joseph returned to the Melbourne Clinic on July 23, 2004, again complaining of lower back pain. He was weighed and his temperature, pulse rate, and blood pressure were taken. The woman taking his blood pressure advised him that it was still a little high. Dr. Heshmati examined the patient and asked him to bend over. Mr. Joseph complied with the request and expressed discomfort when he bent over a short distance. Dr. Heshmati touched Mr. Joseph's back. He noted that Mr. Joseph had good range of motion. Dr. Heshmati asked Mr. Joseph about bringing in the MRI. Again, Dr. Heshmati told Mr. Joseph that his blood pressure was elevated and that they needed to watch it. Dr. Heshmati discussed Mr. Joseph's window washing occupation with him, and Mr. Joseph explained how he used a Bosun's chair while washing the windows. High-rise window washers often experience back pain from sitting in a Bosun's chair each day and from the positions that they have to take while washing windows. While Mr. Joseph was at the Melbourne Clinic on July 23, 2004, he signed a contract stating that while he was under treatment by the Melbourne Clinic that he would not seek narcotic or any other type of pain medication anywhere else for his medical condition. Although Mr. Joseph signed the contract, stating that he had been informed of the side effects of the pain medication regarding physical addiction and psychological dependence, the only counseling that he had received from anyone at the clinic was that the medication could damage his liver. Dr. Heshmati prescribed 25 tablets of Lorcet for Mr. Joseph's back pain at the July 23, 2004, visit. Mr. Joseph returned to the Melbourne Clinic on August 12, 2004, again complaining of back pain. One of the staff at the clinic weighed him and took his temperature, pulse rate, and blood pressure. His blood pressure had improved since his last visit. Dr. Heshmati examined Mr. Joseph again on August 12, 2004. The doctor asked Mr. Joseph to bend over as he had done at the two previous visits, and Mr. Joseph reacted in the same manner, indicating that he had pain after bending a short distance. Dr. Heshmati asked Mr. Joseph to raise his legs about 14 inches off the ground, which Mr. Joseph did. Dr. Heshmati noted in the medical records that Mr. Joseph had good range of motion and a negative straight-leg test. The doctor wrote in his notes that Mr. Joseph would be in Melbourne for another month and that Mr. Joseph was waiting for his records from his doctor in Fort Pierce. Mr. Joseph indicated to Dr. Heshmati that he was frustrated because Dr. Heshmati had prescribed only 25 tablets of Lorcet at the previous visit. Dr. Heshmati wrote Mr. Joseph a prescription for 30 tablets of Lortab. On August 27, 2004, Mr. Joseph returned to see Dr. Heshmati again complaining of back pain. He was weighed, and his pulse rate and blood pressure were checked. Dr. Heshmati examined Mr. Joseph's back and noted that Mr. Joseph had no tenderness and a good range of motion. Mr. Joseph was required to sign an agreement during this visit, agreeing to have a ten-panel blood test done. Dr. Heshmati wrote a prescription for Mr. Joseph for 25 tablets of Lortab. He did not return to Dr. Heshmati's office for another visit. On each visit to the Melbourne Clinic, Mr. Joseph paid the receptionist $60 in cash prior to seeing Dr. Heshmati. He was given a receipt for each visit. On July 16, 2004, D.C. went to the Melbourne Clinic complaining of lower back pain and trouble sleeping. D.C. indicated that she had not injured her back, but had been having the pain off and on for two to three months with a fairly recent onset of pain. Staff at the clinic weighed her and recorded her temperature, pulse rate, and blood pressure. She gave her family medical history, indicating that her mother had heart disease, but denying a family history of cancer, diabetes, and hypercholesterolemia. Her social history showed that she did not smoke and drank alcohol socially. D.C. advised that she was allergic to sulfa and had no previous surgeries. On July 16, 2004, D.C. signed a patient contract, agreeing that while she was being treated at the Melbourne Clinic that she would not seek narcotic or any other type of pain medication anywhere else for her medical condition. The contract stated that she had been informed of the side effects of that type of medication regarding physical addiction and psychological dependence. She was asked by staff to sign the contract prior to her seeing Dr. Heshmati. Neither staff nor Dr. Heshmati counseled her during that visit on the side effects of the medications that she had been prescribed. Dr. Heshmati examined D.C., asking her to bend over and touch her toes, which she did with no difficulty and without expressing any pain. He asked her where her pain was located, and she pointed to her lower sacral back. She told Dr. Heshmati that she had seen a doctor in Palm Bay for pain in her back, but that she could not remember the name of the doctor. Dr. Heshmati checked the side of D.C.'s leg and asked her if she had any numbness. He also hit her knee with the end of the stethoscope. The doctor listened to D.C.'s heart and lungs. He told her that she had a heart murmur and that she needed to have someone look at the heart murmur. Dr. Heshmati inquired whether D.C. had had a MRI or an X-ray of her back, and she replied that she had not. Dr. Heshmati's notes indicate that he did a review of her systems and noted no coughing, congestion, Rhinorrhea, sinus pain, sneezing, sore throat, ear ache, nausea, vomiting, diarrhea, abdominal pain, chest pain, shortness of breath, headache, dizziness, weakness, or numbness. Based on his examination, Dr. Heshmati concluded that D.C. had an acute musculoskeletal event. She had indicated the pain was in her lower back. Her straight-leg test was negative, indicating no radiation of pain and no nerve impingement. Her range of motion was good, which eliminated a lot of conditions associated with the spine. D.C. told Dr. Heshmati that in the past Lortab and Xanax had worked for her. He wanted to prescribe another pain medication for her, but she told him that she wanted to stay with the Lortab. He prescribed 20 tablets of Lortab and 20 tablets of Flexeril, which is a non-narcotic muscle relaxer. D.C. told him that those drugs would not help her sleep and asked him for Xanax. He refused to prescribe the Xanax. He told her to do some back exercises, but did not tell her what specific back exercises she should do. Dr. Heshmati told her to return in two weeks if she was not better. D.C. returned to the Melbourne Clinic on July 30, 2004, complaining that her back still hurt and that she was having trouble sleeping. Staff at the clinic weighed her and recorded her temperature, blood pressure, and pulse rate. Dr. Heshmati saw D.C. and asked her whether she had done her exercises, to which she replied that she had not. He ran his hand along her spine, checked the sides of her legs, and pushed on her feet. He asked her to push towards him with her foot on his hand. D.C. asked him twice during the visit for a prescription of Xanax to help her sleep. She told him that the Flexeril did not help her. He was hesitant about prescribing the Xanax, indicating that he did not want to prescribe two narcotics, but he eventually prescribed 15 tablets of Xanax, along with 20 tablets of Lortab and 20 tablets of Naproxen, which is an anti-inflammatory medication. He told her to take the Naproxen during the day because it did not cause drowsiness. Dr. Heshmati also told her that the Xanax could be habit- forming. Dr. Heshmati wanted D.C. to have an X-ray, wrote a prescription for an X-ray of her lumbar sacral for chronic back pain, and recommended a couple of places where she could have the X-ray done. She asked him how many more times she come return for a visit without having the X-ray done, and he told her that he could not continue to prescribe pain medication for more than two months without her having an X-ray done. D.C. did not return to visit Dr. Heshmati after her July 30, 2004, visit. Stephanie Vzatek first presented at the Palm Bay Walk-In Clinic on December 1, 2004, complaining of a current lower back pain towards her right side. She stated that the back pain had been coming and going for about two years and that she did not know how she had hurt her back. Staff at the clinic took Ms. Vzatek's weight, pulse rate, and blood pressure. She advised staff that she had no allergies and that she was taking Lortab, Xanax, and Soma. Prior to seeing Dr. Heshmati, Ms. Vzatek was asked to sign a patient contract on December 1, 2004, in which she agreed that while she was being treated at the clinic that she would not seek narcotic or any other type of pain medication anywhere else for her medical condition. The contract, which she signed, also stated that she had been informed of the effects of those types of medication regarding physical addiction and psychological dependence; however, she was never counseled on the side effects of any pain medications that Dr. Heshmati prescribed for her. Dr. Heshmati asked Ms. Vzatek whether she had had a MRI or an X-ray done, to which she replied that she had not. He asked her if she had seen a doctor, and she told him that she had seen Dr. Ryan out of Orlando. Dr. Heshmati reached under Ms. Vzatek's jacket, felt of her back, and asked her if her back hurt. She told him that her back did hurt. He checked her reflexes by hitting around her knee with the stethoscope. Dr. Heshmati also checked her heart and lungs and recorded his findings as normal. Dr. Heshmati's notes indicate that he did a review of systems and noted that Ms. Vzatek had no abdominal pain, weakness, or numbness. Her straight-leg test was negative, and she had good range of motion. Ms. Vzatek told Dr. Heshmati that she was currently taking Soma to help her sleep and Lortab for her back pain and that occasionally she took Xanax. Dr. Heshmati asked Ms. Vzatek what strength of Lortab that she was taking, and she told him 10/500. He prescribed 15 Lortab tablets in that strength for her. He also prescribed 20 tablets of Naproxen, but did not prescribe Xanax or Soma. Dr. Heshmati told Ms. Vzatek that she needed to get a MRI or an X-ray, and that if she wanted to have refills of the prescriptions that she would have to have the tests done. He also advised her to get physical therapy. She told him that she did not have insurance and could not afford a MRI or physical therapy. Ms. Vzatek returned to Dr. Heshmati's office on December 29, 2004. She advised the staff that she had seen Dr. Heshmati before and that she wanted to get refills of her prescriptions. A staff person asked her whether she had brought any X-rays with her, and Ms. Vzatek replied that she had not because she could not afford to get them done. The staff person advised Ms. Vzatek that she could go to the Beach Walk-In Clinic and get a back X-ray for $50. The staff person also advised Ms. Vzatek that she could get only four refills unless she had blood tests done and that she would have to get a physical after her fifth visit. Ms. Vzatek was given a form to sign indicating that she agreed to get blood tests done starting with the next visit and that all tests were to be done over the next three months. When Ms. Vzatek saw Dr. Heshmati, she told him that she still hurt. He also asked whether she had X-rays made, and when she told him that she had not had the X-rays taken, he wrote a prescription for a lumbar sacral X-ray and referred her to the Beach Walk-In Clinic. Dr. Heshmati asked Ms. Vzatek what her occupation was, and she responded that she was a cocktail waitress and worked an eight-hour shift and occasionally a double shift. Dr. Heshmati asked Ms. Vzatek to bend over and asked her if her back hurt when she bent over. He asked her whether she had been using ice packs and doing lower back exercises. Neither he nor his staff demonstrated, instructed about, or provided literature on lower back exercises that she was to perform. Dr. Heshmati prescribed 30 tablets of Naproxen and 15 tablets of Lortab. Ms. Vzatek's paid $60 in cash up front for each of her visits and received a receipt. She did not return to see Dr. Heshmati after her December 29, 2004, visit. On December 2, 2004, Jerry Thompson presented at the Melbourne Clinic complaining of lower back pain. Prior to going to the Melbourne Clinic, he had been seen by Dr. Wang at the Cocoa Walk-In Clinic. The receptionist asked Mr. Thompson if this was his first visit to the Melbourne Clinic to which he replied that it was. A staff person weighed Mr. Thompson, took his blood pressure, and recorded his height. She asked him whether he had any allergies and took a social history. He told her that he had been having pain in his lower back for about six months and that he took Lortab and Xanax when he had pain. Dr. Heshmati asked Mr. Thompson whether he had seen another doctor for his back pain. Mr. Thompson told Dr. Heshmati that he had seen a doctor in Orlando, but that he did not remember his name. The evidence did not establish that Mr. Thompson told Dr. Heshmati or his staff that Mr. Thompson had seen Dr. Wang at the Cocoa Walk-In Clinic. Nothing in the medical records for Mr. Thompson's visit on December 2, 2004, indicate that he informed anyone at the Melbourne Clinic that he had been seen by Dr. Wang. Dr. Heshmati asked Mr. Thompson whether he had brought any medical records, X-rays, or MRI reports with him, and Mr. Thompson told him that he had not. Dr. Heshmati advised Mr. Thompson that he would have to get those. Mr. Thompson said that he had hurt his back when he tripped and fell. Dr. Heshmati listened to Mr. Thompson's chest and back with a stethoscope. The doctor told Mr. Thompson to bend over as far as he could. Mr. Thompson stood up and bent over and groaned when his outstretched fingers were about a foot-and-a-half from the ground. Dr. Heshmati had Mr. Thompson to get up on the examining table and lie on his back. Dr. Heshmati grabbed Mr. Thompson's ankles one at a time and raised them to approximately 40 or 50 degrees. Each time Mr. Thompson would groan. Dr. Heshmati then had Mr. Thompson sit on the side of the examining table and hang his feet over the side while Dr. Heshmati tapped his legs with a stethoscope. Dr. Heshmati noted that Mr. Thompson had tenderness in the mid-lower back and had a negative straight-leg test. Dr. Heshmati's notes indicate that he did a review of Mr. Thompson's systems and did not find any abdominal pain, weakness, or numbness. Dr. Heshmati asked what the doctor in Orlando had prescribed, and Mr. Thompson told him that he had been given Lortab and Xanax. Dr. Heshmati seemed concerned about the Xanax and told him there were other medications that he could take. The doctor told Mr. Thompson that Lortab could be habit forming and could lead to drowsiness. Mr. Thompson replied that he was not worried because he frequently took antihistamines, which did not make him drowsy. Dr. Heshmati would not prescribe both Lortab and Xanax. He did prescribe 30 tablets of Lortab and 30 tablets of Naproxen and told Mr. Thompson that he should have a MRI or at least an X-ray done before he returned for another visit. Mr. Thompson paid $60 in cash for his visit when he first came into the clinic. He was given a receipt for the payment. He did not return to see Dr. Heshmati. Normally, patients do not use walk-in clinics as their primary medical care provider. When a patient presents on an initial visit with musculoskeletal back pain, the physician, at a minimum, must perform a focused examination, which would include an examination on the lumbar spine, and a neurological examination, especially findings in the lower extremities. The physician would ask the patient if the patient had any gallbladder problems, any weakness in the legs, and any history of back pain. Acute back pain will typically resolve in six to eight weeks with conservative treatment. Conservative treatment would include prescribing small amounts of pain medication with follow-up visits from two-and-a-half to three weeks. Lortab, Lorcet, and Naproxen are acceptable medications for the treatment of back pain. It is common and appropriate for a physician in a walk-in clinic setting to prescribe small amounts of medication with quick follow-up visits. When a physician in a walk-in clinic setting prescribes a two-week supply of pain medication for a patient and intends to follow up with the patient in two weeks, the physician would be considered to have prescribed a small amount of medication.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Heshmati violated Subsections 458.331(1)(m), 458.331(1)(t), and 458.331(1)(nn), Florida Statutes, by failing to document his physical examination of Mr. Joseph on Mr. Joseph's initial visit; finding that Dr. Heshmati is not guilty of the other allegations set forth in the Amended Administrative Complaint; and suspending his license for one year and crediting him with the time that his license has been under emergency suspension. DONE AND ENTERED this 7th day of December, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th of December, 2006.
