The Issue The issue in the case is whether the allegations set forth in the Amended Administrative Complaint filed against the Respondent are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Respondent is a Florida-licensed registered nurse, holding license number RN 2061632. At all times material to this case, the Respondent resided with her daughter in an unidentified city in Massachusetts. In February 2001, the Respondent sought employment at the Pleasant Manor Health and Rehabilitation Center ("Pleasant Manor"), a facility located in Attleboro, Massachusetts. As part of the employment application process, the Respondent was required to submit a urine sample to a Pleasant Manor employee. The evidence fails to establish that the procedure utilized by the Pleasant Manor employee in collecting the urine specimen was sufficient to preclude contamination of the specimen. Prior to the urine collection procedure, the Pleasant Manor employee did not require that the Respondent wash her hands. The Respondent was taken into a restroom to provide the specimen. The Pleasant Manor employee waited outside the restroom while the Respondent collected the urine sample. The water in the toilet bowl was clear. Hot and cold running water was available in the restroom sink. After the sample was taken, the Respondent remained with the Pleasant Manor employee while the sample was sealed and packaged for transportation to the testing lab. The urine specimen was submitted to a LabCorp testing facility in North Carolina for analysis. The initial LabCorp test on the Respondent's urine specimen produced results indicating the presence of cannabinoids and opiates. The Respondent's urine specimen was subjected to confirmation testing and returned a test result of 31 ng/mL for cannabinoids and 920 ng/mL for opiates/codeine. The evidence establishes that the LabCorp tests were performed according to appropriate standards and practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Nursing, enter a Final Order dismissing the Amended Administrative Complaint filed against Respondent Deborah Ketz. DONE AND ENTERED this 5th day of September, 2002, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 5th day of September, 2002. COPIES FURNISHED: Alexis J. DeCaprio, Esquire Division of Medical Quality Assurance Bureau of Health Care Practitioner Regulation Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265 Suzanne H. Suarez, Esquire 447 3rd Avenue, North Suite 404 St. Petersburg, Florida 33701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dan Coble, R.N., Ph.D., C.N.A.A. C, B.C. Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 Reginald D. Dixon, Esquire Division of Medical Quality Assurance Bureau of Health Care Practitioner Regulation Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265
The Issue This is a proceeding in which the Petitioner seeks to suspend the license of a medical doctor on the basis of allegations set forth in an Administrative Complaint. The Administrative Complaint charges that the medical doctor is in violation of Section 458.331(1)(s), Florida Statutes, "by being unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition."
Findings Of Fact The Respondent is, and has been at all times material to this proceeding, licensed as a physician in the State of Florida, having been issued license number ME0077594. Cocaine is a Schedule II controlled substance with a high potential for abuse, whose use may lead to severe psychological or physical dependence. When a person ingests cocaine, the human body metabolizes some of the cocaine into a substance called benoylecgonine. Benoylecgonine is commonly referred to as cocaine metabolite or metabolite of cocaine. In the normal course of events, cocaine metabolite is found in the human body only following the ingestion of cocaine. On February 17, 1998, the Respondent submitted a urine sample for drug screening as part of the application process for employment at Jackson Memorial Hospital in Miami, Florida. The results of that test came back positive for metabolite of cocaine. While positive, the amount of cocaine metabolite recorded by the test equipment was very small, only 61 nanograms of metabolite of cocaine per milliliter. The Respondent was very surprised by the results of the urine drug screen test, and he questioned the accuracy of the test results. When he gave the urine sample on February 17, 1998, the sample was split into two separate samples. He eventually requested a test of the second sample. The second sample was tested on November 24, 1998. The second sample also tested positive, but again the measured amount of cocaine metabolite was very small, only 50.5 nanograms per milliliter. The Respondent is unable to explain why the urine specimen he gave on February 17, 1998 would test positive for metabolites of cocaine. The Respondent denies any voluntary or intentional ingestion of cocaine and is unaware of any manner in which he might have accidentally or unknowingly ingested cocaine. The Respondent believes that the test results of the urine sample he gave on February 17, 1998, are erroneous because there is no logical reason known to him for his urine to have tested positive for metabolites of cocaine, other than test error or sample contamination. Drug test results that indicate only very small amounts of cocaine metabolite in the test sample are regarded as insignificant and are treated essentially the same as negative results. For example, Jackson Memorial Hospital treats test results of less than 50 nanograms of cocaine metabolite per milliliter the same as a negative result. And the Department of Transportation treats test results of less than 150 nanograms of cocaine metabolite per milliliter the same as a negative result. When the Respondent's urine sample of February 17, 1998, was tested the first time, the materials being tested also included two control samples of known values. One of the control samples contained 150 nanograms of cocaine metabolite per milliliter. The test equipment measured that sample as 163 nanograms per milliliter; 13 nanograms high. The other control sample contained 450 nanograms of cocaine metabolite per milliliter. The test equipment measured that sample as 482 nanograms per milliliter; 32 nanograms high. On the first test of the Respondent's February 17, 1998, urine sample, the test equipment recorded a measurement of 61 nanograms of cocaine metabolite per milliliter. That result was not adjusted to take into account the fact that the test equipment was producing high readings on the known samples. If the test results of the Respondent's urine sample were to be adjusted by the 13 nanogram error in the smallest of the control samples, the result would be 48 nanograms of cocaine metabolite in the Respondent's sample. The Respondent became licensed to practice medicine in Florida on or about March 4, 1999. Shortly thereafter, the Respondent obtained employment with an anesthesia group in Miami, Florida, known as Anesthesia Group of Miami, Inc. Anesthesia Group of Miami, Inc., had a contract to provide anesthesia services to patients at Coral Gables Hospital. In his capacity as an employee of Anesthesia Group of Miami, Inc., the Respondent was assigned to provide anesthesia services to patients at Coral Gables Hospital on a regular basis. Dr. Manuel Torres was the CEO and owner of the Anesthesia Group of Miami, Inc. Dr. Torres was the person who made the decision to offer the Respondent employment with the Anesthesia Group of Miami, Inc., and was also the person primarily responsible for supervising the Respondent's professional activities. Dr. Manuel Torres has been practicing anesthesiology for approximately 30 years. During that time he has served as Chief of Anesthesiology at several hospitals in the Miami area, including Hialeah Hospital, Golden Glades Hospital, and Coral Gables Hospital. Dr. Manual Torres has also been a professor of medicine at the University of Miami School of Medicine. While the Respondent worked at Coral Gables Hospital as a new anesthesiologist, he was closely supervised by Dr. Torres, both inside and outside of the operating room. During the course of his supervision of the Respondent, it never appeared to Dr. Torres that the Respondent was impaired in any way. On the evening of July 16, 1999, while some atypical events were taking place in the vicinity of the lobby of the Coral Gables Hospital, the Respondent was elsewhere in the hospital providing anesthesia services for two patients.3 Hospital records show that from 7:00 p.m. until about 9:20 p.m. on July 16, 1999, the Respondent was providing anesthesia services to two patients in one of the hospital operating rooms. These medical records include entries made by the Respondent as the anesthesia services were being provided to the patients in the operating room and in the recovery room, with the Respondent documenting the patient's pulse, blood pressure, respiration, and other information in the records every few minutes. Between about 9:20 p.m. and 11:07 p.m., one of the patients being attended to by the Respondent was in the recovery room. During this time, the Respondent remained in or near the recovery room to ensure that the patient fully recovered from the anesthesia before the Respondent left the hospital premises. At 11:07 p.m., the recovery room nurse went to the Respondent to ask him for orders to move the patient from the recovery room to a regular floor. The Respondent gave the requested orders. Very shortly thereafter, the Respondent left the recovery room and also left the hospital. The Respondent was picked up at the hospital by his roommate at approximately 11:30 p.m. On the evening of July 16, 1999, the Respondent was not the person in the men's restroom of the hospital lobby and was not the person who, upon leaving the men's restroom, asked that a taxi be called.4 As of the date of the final hearing in this case, the Respondent had shared a dwelling place with an adult roommate for approximately one and a half years. During that period of time, the Respondent's roommate has never seen the Respondent using drugs, nor has he ever seen the Respondent engage in any conduct that created any suspicion of drug use. After July 16, 1999, and until his license was suspended in December of 1999, the Respondent continued to work for the Anesthesia Group of Miami under the supervision of Dr. Manuel Torres at facilities other than Coral Gables Hospital. Dr. Torres was never notified by anyone at Coral Gables Hospital about the allegations made against the Respondent on July 16, 1999, even though the hospital knew that the Respondent continued to be employed by Dr. Torres and that the Respondent was continuing to provide anesthesiology services to patients at other facilities. Shortly before the Respondent was employed by Dr. Torres, Martha Garcia, the Chief Executive Officer, at Coral Gables Hospital, had notified Dr. Torres that the hospital had decided to terminate its contract with the Anesthesia Group of Miami, and that after midnight on July 16, 1999, another anesthesia group would be providing all anesthesia services at Coral Gables Hospital. The new anesthesia group took over responsibility for all anesthesia services at Coral Gables Hospital beginning at the stroke of midnight on July 16, 1999. The Respondent had wanted to continue to work at Coral Gables Hospital after July 16, 1999. Dr. Torres did not object to the Respondent continuing to work at Coral Gables Hospital after July 16, 1999. Accordingly, Dr. Torres advised the Respondent that the he would release the Respondent from the non-compete clause in the Respondent's employment contract. Dr. Torres also advised the hospital CEO that he was releasing the Respondent from the non-compete clause. The Respondent communicated with the new anesthesia group and made arrangements to work with that group when they began providing anesthesia services at Coral Gables Hospital on July 17, 1999. The Respondent also discussed the matter with Martha Garcia. She initially told the Respondent that she had no objection to him continuing to work at Coral Gables Hospital with the new anesthesia group after July 16, 1999. At some point in time prior to July 16, 1999, Martha Garcia changed her mind. She told the new anesthesia group that she would not allow the Respondent to work at Coral Gables Hospital after July 16, 1999. She also told the Respondent that she had changed her mind. Martha Garcia and the Respondent had at least one heated conversation about her change of mind. Martha Garcia became very angry with the Respondent about the way he spoke to her during their heated conversation. She was still angry with him on July 16, 1999. Martha Garcia's animosity towards the Respondent was still evident during her testimony at the final hearing. On August 3, 1999, about two and a half weeks after the alleged incident on the night of July 16, 1999, Martha Garcia, the Chief Executive Officer of Coral Gables Hospital, called the Physicians Recovery Network (PRN) and told them that a hospital security guard had discovered the Respondent "strapped off" and injecting a substance into himself.5 The PRN monitors health care practitioners who are impaired or potentially impaired by alcohol, drugs, or other mental conditions. Dr. Raymond Pomm, the Medical Director of the PRN, serves as the impaired practitioner's consultant to the Board of Medicine. In response to the information provided by Martha Garcia, the PRN contacted the Respondent on August 10, 1999. The PRN requested that the Respondent obtain an evaluation for possible impairment and provided the Respondent with several options for such an evaluation. The Respondent agreed to see Dr. Richard Seely for the evaluation. On August 20, 1999, the Respondent presented to Richard Seely, M.D., who is a board certified addiction psychiatrist, for evaluation. At that time, Dr. Seely observed Respondent to be anxious, tremulous, and in an agitated state. Additionally, Dr. Seely noticed that the Respondent's nose was running and that the Respondent frequently rubbed his nose. During Respondent's visit with Dr. Seely, Dr. Seely requested that the Respondent provide an immediate urine sample for a urine drug screen. Such a urine drug screen is a routine part of an evaluation of impairment or possible impairment. The Respondent refused to provide an immediate urine sample. The Respondent was presented with two options for submitting to an immediate urine drug screen. The Respondent could either call his attorney from Dr. Seely's office, or he could immediately provide the urine sample, which Dr. Seely agreed to hold until such time as the Respondent could speak with his attorney. The Respondent rejected these options, and he did not provide a urine sample on August 20, 1999. The Respondent also refused to sign the consent forms and refused to pay for the evaluation. The Respondent contacted his attorney to discuss whether he should sign the forms provided to him by Dr. Seely and whether he should provide the urine sample requested by Dr. Seely. Following review of the forms, the attorney advised the Respondent that he should sign the forms and that he should provide the requested urine sample. On August 24, 1999, the Respondent returned to Dr. Seely's office, signed the consent forms, and provided a urine sample. Testing of that urine sample was negative for any of the drugs tested for. However, because the Respondent had waited four days to provide the urine sample, on August 24, 2000, Dr. Seely also asked the Respondent to provide a hair sample. The Respondent contacted his attorney to ask whether he should comply with the request for a hair sample. The Respondent's attorney advised him not to provide a hair sample for testing. Consistent with that advice, the Respondent refused to provide a hair sample on August 24, 2000. Dr. Seely could not complete an evaluation of Respondent or make a recommendation to PRN without the Respondent's undergoing some form of reliable drug screening, either by immediate urine screening or by hair drug toxicology screening. Dr. Seely reported to the PRN that an evaluation of the Respondent could not be completed because the Respondent refused to cooperate with the evaluation. On October 4, 1999, Dr. Raymond Pomm, the Medical Director at PRN and a board certified addiction psychiatrist, wrote to the Respondent. Dr. Pomm's letter to the Respondent included the following: This correspondence serves as written documentation that your case is being referred to the Agency for Health Care Administration for appropriate action. This referral is the result of serious allegations brought forth and your unwillingness to fully cooperate with the evaluation process to resolve same. On October 4, 1999, Dr. Raymond Pomm also wrote to the Agency for Health Care Administration (AHCA). Dr. Pomm's letter to the AHCA summarized the information he had received regarding the allegations against the Respondent, summarized efforts to have the Respondent submit to an evaluation, summarized the Respondent's failures to cooperate, and concluded with the opinion that the Respondent was "unsafe to practice his profession with reasonable skill and safety." As of March 24, 2000 (the last day of the final hearing in this case), the Respondent had not completed a psychological evaluation or a chemical dependency evaluation. However, during March of 2000, the Respondent voluntarily submitted several urine samples for drug screen testing. These more recent urine samples were tested by the same lab that performed the drug screen test on February 17, 1998. The more recent samples were submitted on each of the following dates: March 7, 10, 13, 17, and 20, 2000. All five of the urine samples submitted by the Respondent during March of 2000 were negative for cocaine metabolite. They were also negative for all of the other drugs for which the tests screened. Under Section 458.331(1)(s), Florida Statutes, the Petitioner has "the authority to issue an order to compel a licensee to submit to a mental or physical examination by physicians designated by the department." No such order was issued to compel the Respondent to submit to such a examination.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a final order be issued in this case concluding that the evidence is insufficient to establish that the Respondent is unable to practice with skill and safety, dismissing the Administrative Complaint in its entirety, and vacating the previously issued Emergency Suspension Order. DONE AND ENTERED this 6th day of July, 2000, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 6th day of July, 2000.
The Issue The question presented is whether Respondent violated Section 456.072(1)(bb), Florida Statutes (2006), or Section 458.331(1)(nn), Florida Statutes (2006), by means of violating Florida Administrative Code Rule 64B8-9.007(2)(b), and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of medical doctors pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes. At all times material to the Administrative Complaint, Respondent was a medical doctor licensed by the State of Florida, having been issued license number ME 70981. Respondent is also certified by the American Board of Internal Medicine with a subspecialty in interventional cardiology. No evidence was presented to indicate that Respondent has ever been disciplined by the Florida Board of Medicine. On March 12, 2007, Dr. Elsakr was caring for two patients at Halifax Medical Center (Halifax). Patient M.D. was an 84-year-old Caucasian female born on March 22, 1922. F.E. was an 82-year-old Caucasian female born on February 5, 1925. Both women were scheduled for cardiac procedures to be performed on March 12, 2007, but only F.E. was scheduled for a cardiac catheterization. M.D. and F.E. shared the same semi-private room at Halifax. During the night before the scheduled procedures, one of the patients asked to be moved away from the window, and as a result, the two patients' bed locations were reversed. Halifax had procedures in place related to the transport of patients from one area of the hospital to another. The policy required that a staff member referred to as a transporter was required to check at least two patient identifiers on the patient's arm band to confirm a patient's identity. The arm band contains four identifiers: the patient's name, date of birth, a medical record number and a visit number. While any of the four may be used, the patient's name and date of birth are preferred. Patient M.D. was supposed to be transported for a heart catheterization the morning of March 12. However, the hospital policy regarding patient identification was not followed, and the wrong patient, M.D. as opposed to F.E., was transported to the catheterization lab (cath lab). Apparently, the transporter relied on the room and bed placement of the patient as opposed to following the protocol for affirmatively checking the patient identifiers. Once a patient was transported to the cath lab for a procedure, Halifax had a separate "pause" or "time out" protocol designed to ensure that the correct patient was present and the correct procedure was performed. The procedure was designed to be consistent with standards provided by the Centers for Medicare and Medicaid Services (CMS) and the Joint Commission for Accreditation of Hospitals, and the practices used by other hospitals. After transport and before a sterile field was created, the patient would be prepared for the procedure. As part of that preparation, a nurse was supposed to verify the patient's identity and confirm with another staff member that the patient's chart was the appropriate chart. The chart would then be provided to the person referred to as the recorder located in the adjacent control room outside the sterile field. The control room is separated from the sterile field by a plexi-glass wall, through which the recorder can observe everything taking place in the cath lab. The recorder would create a chronological log of the procedure, documenting the exact time when events took place. The physician performing the procedure would not necessarily be in the cath lab at the time the nurse verified the patient's identity. The chronological log for M.D. does not indicate that the patient's identity was confirmed or if it was confirmed, who confirmed it. Once a patient was prepped and draped, and the sterile field created, the recorder would call out the patient's name, procedure, procedure equipment, site and side of the procedure to be performed. The accuracy of the information was to be confirmed by a staff member saying "yes" or nodding his or her head. This procedure was considered by the hospital to be its "time out" procedure. The physician would be present but not actually participate in the time out, and would observe the time- out taking place. In this case, although the recorder called out F.E.'s name and the procedure she was scheduled to have, M.D. was actually present. Notwithstanding this error, an unidentified staff member either nodded or verbally confirmed that the information recited by the recorder was correct. Dr. Elsakr arrived at the cath lab after the patient was prepped but before the time out called by the recorder. He was present, but did not verbally participate, in the time out process. Before it took place, he met with the recorder in the control room to review the medical chart prior to the procedure. The medical chart reviewed was for F.E. After the time out, Dr. Elsakr approached the patient and stood near her head. By this time, the patient was fully draped, with blankets and surgical drapes covering all of her body except the surgical entry area (in this case her groin) and a portion of her face. Dr. Elsakr spoke to the patient, calling her by the first name of the patient F.E., and telling her, "[F.], this is Dr. Elsakr. I'm going to get started with your heart cath. Okay?" This interaction was consistent with his standard practice before he began a procedure, in order to give patients a level of comfort. M.D. did not initially respond to the name F., but said "yes" in response to Dr. Elsakr's question. He then moved down to the groin area, again called her by name (F.E.'s first name), and told her what she would feel as he started the procedure. She nodded her head and the procedure was begun. A catheterization was completed on the right side of the heart and begun on the left side. At that point, staff reported to Dr. Elsakr that the patient was the wrong patient. The procedure was immediately stopped. Dr. Elsakr immediately informed the patient, the patient's daughter, and the patient's primary care physician. He also noted the mistake on M.D.'s medical chart. Halifax Hospital undertook an investigation of the events leading to the procedure. The purpose of its investigation was to determine whether there was a breach in hospital safety protocols and to prevent any recurrence of the error. Dr. Donald Stoner, Halifax's Chief Medical Officer, testified that the fault lay with hospital staff, and not with Dr. Elsakr, and that if he had been the doctor involved, he likely would have done the same things as Dr. Elsakr. Halifax accepted full responsibility for the incident and independently compensated the patient for the incident. The hospital also determined that it would be inappropriate for Dr. Elsakr to be subject to any discipline for the incident by Halifax with respect to his privileges. Immediately after discovering that the wrong patient had the heart cath, Dr. Elsakr instructed that the patient should not be charged in any way for the procedure. While patient M.D. clearly could have been harmed by having to undergo the procedure, information about her condition was obtained that was actually a benefit to her.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Florida Board of Medicine enter a Final Order finding that Respondent, Ashraf Elsakr, M.D., violated Section 456.072(1)(bb), Florida Statutes, and Section 458.331(nn), Florida Statutes by means of violating Florida Administrative Code Rule 64B8-9.007(2)(b). As a penalty, it is recommended that the Board issue a letter of concern, and impose a $5,000 fine. In addition, Respondent should be required to obtain five hours in continuing medical education in the area of risk management, perform 25 hours of community service, and give a one-hour lecture on performing procedures on the wrong patient. DONE AND ENTERED this 30th day of June, 2010, 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 30th day of June, 2010.
Findings Of Fact Based upon the record evidence, as well as the factual stipulations entered into by the parties, the following Findings of Fact are made: Respondent was certified by the Criminal Justice Standards and Training Commission on May 3, 1985, and issued certificate number 19-85-502-01, which she still holds. On January 31, 1990, Respondent was employed by Metro-Dade County as a correctional officer and held the rank of corporal. She had been employed as a Metro-Dade County correctional officer for the previous five years. On January 31, 1990, Respondent reported to Mount Sinai Medical Center (Center) in Miami Beach, Florida for a biannual physical examination required by her employer. Respondent had approximately two weeks advance notice of this examination. At about 9:18 a.m., in a private area of the Center, as part of her examination, Respondent urinated into a sterile urine sample cup that had been provided by the Center. She then delivered the cup containing her urine sample to Phyllis Miller, an employee of the Center's laboratory. Miller immediately capped the sample cup and labeled it with bar code number 417002 and the laboratory reference number 83278, thus making it uniquely identifiable. At about 4:14 p.m., the sealed sample cup containing Respondent's urine was delivered to Toxicology Testing Services' (TTS's) laboratory in Miami and placed in secure storage. At about 8:00 p.m., TTS laboratory employee Monica Hernandez retrieved the sample cup. Hernandez dispensed a portion of the urine sample from the cup and then performed an initial chemical screen to determine if there was evidence of any controlled substances or their metabolites in the urine. On March 8, 1990, at about 5:00 p.m., a portion of the remaining urine in the cup was dispensed and a confirmation analysis of the urine was performed. Neither the sample cup, nor the urine sample it contained, had been tampered with, altered or adulterated since the initial collection of the urine sample. Respondent's urine was analyzed by gas chromatography-mass spectrometry, an extremely reliable confirmatory testing method. This confirmatory testing revealed the presence of benzoylecgonine in Respondent's urine in a concentration of 588 nanograms per milliliter. Benzoylecgonine is a metabolite that is produced when cocaine is introduced into the body. Cocaine is the only substance known to produce benzoylecgonine. The results of the testing of Respondent's urine sample were consistent with, and indicative of, Respondent's voluntary ingestion of cocaine sometime within a two month period prior to giving the sample. 2/ At the time of the final hearing in the instant case, Respondent was no longer employed by Metro-Dade County as a correctional officer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Criminal Justice Standards and Training Commission enter a final order (1) finding Respondent guilty of having failed to maintain "good moral character," in violation of Section 943.1395(5), Florida Statutes, by virtue of her unlawful use of cocaine on or about January 31, 1990; and (2) revoking her certification, based upon such a finding. RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of December, 1991. STUART M. LERNER 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 27th day of December, 1991.
Findings Of Fact The current petition Following the entry of a final order of the Board of Medicine dismissing the administrative action previously filed against her, petitioner filed the pending request for an award of attorney's fees and costs, pursuant to Sections 57.111 and 120.57(1)(b)5, Florida Statutes. Respondent, Department of Business and Professional Regulation, Board of Medicine (Department), has conceded that: the underlying licensure disciplinary "action in Department of Professional Regulation v. Ada Gonzalez, M.D., DBPR Case No. 90-06789, was initiated by the Department of Professional Regulation (now Department of Business and Professional Regulation), a state agency, and, therefore, the Department is not a nominal party only"; the "Petitioner qualifies as a small business party as defined by Section 57.111, Florida Statutes"; the "Petitioner prevailed in the underlying case . . . in that the Board of Medicine dismissed the case with a Final Order filed on October 27, 1993"; and, the "Petitioner's claimed attorney's fees and costs [attorney's fees of $20,189.00 and costs of $3,784.95] seem reasonable; however, Respondent asserts that the statutory cap of $15,000.00 inclusive of fees and costs, is applicable." Under the circumstances, the sole issue with regard to the claim for attorney's fees and costs under Section 57.111, Florida Statutes, is whether the actions of the Department were "substantially justified" when it initiated the underlying disciplinary action and, with regard to the claim for attorney's fees and costs under Section 120.57(1)(b)5, Florida Statutes, apart from the applicability of such section to the instant case, is whether any pleading, motion or other paper was filed in the underlying proceeding for an "improper purpose." The underlying disciplinary action On or about May 22, 1990, the Department received, pursuant to statutory requirement, a closed claim report from the Department of Insurance. The report reflected that an indemnity of $160,000 had been paid to the family of Patient C. D. through a settlement within the presuit period prescribed by Section 768.57, Florida Statutes. The predicate for the claim against petitioner, Ada Gonzalez, M.D., was the apparent assertion that the patient died as a consequence of petitioner's failure to appropriately treat her. By memorandum of May 22, 1990, the Division of Medical Quality Assurance recommended to the Department of Professional Regulation's complaints department that a case be opened. That memorandum provided: DISCUSSION: This review is predicated upon receipt of a closed claim DOI report. The specific allegation is that the doctor treated the patient for PID - rule out urinary tract infection. The patient was reportedly treated with antibiotics on 11/14/88 and on 11/16/88 appeared better. However, the patient reportedly did not improve and died of a ruptured ovarian abscess on 11/18/88. There are no medical records to review and there is no history or explanation given as to what happened in the time period from the onset of the pain to the demise of the patient. * * * COMMENTS AND RECOMMENDATIONS: I recommend a case be opened. There is a question of stan dard of care. Records should be obtained and referred to a similarly placed physician for review. As a consequence of the foregoing referral, the Department opened its Case No. 90-06789, and assigned its investigator Providence Padrick to the case. The investigator obtained a copy of the Palm Avenue Physicians Center and the Fatima HMO medical records, which included the documentation reflecting petitioner's treatment of the patient; the Jackson Memorial Hospital medical records, the facility at which the patient expired; and the autopsy report. Petitioner was duly informed by the Department that the case had been opened against her, and she was offered an interview but declined. The Palm Avenue Physicians Center and Fatima HMO medical records reflect that the patient was first seen by petitioner on November 14, 1988, and presented with a complaint of bilateral flank pain radiating to the lower abdomen, frequency of urination with some tingling on urination, a yellowish vaginal discharge, and a low grade temperature; such symptoms of approximately one day duration. Examination revealed lower abdominal tenderness to palpation, cervical motion tenderness, and a brown cervical discharge. Petitioner diagnosed pelvic inflammatory disease ("PID") and possible urinary tract infection ("UTI"). As a consequence of the history and examination, petitioner ordered x- rays of the abdomen, biochemical profile, pregnancy test, syphilis test and cultures of the vaginal discharge and urine; prescribed antibiotics; made a referral for the patient to see a gynecologist in two weeks; and, advised the patient to return for a follow-up visit in two days. As for the testing results, the urine culture and sensitivity came back positive for a urinary tract infection; however, all of the other laboratory tests came back negative. The patient was next seen by petitioner on November 16, 1988, for her follow-up visit. At the time, the patient reported that she felt better, and petitioner's examination revealed less vaginal discharge and discomfort, although she still suffered a low grade fever. Petitioner confirmed her earlier diagnosis of pelvic inflammatory disease, and prescribed another antibiotic (Septra DS) for urinary tract infection. The following day, November 17, 1988, the patient returned to see petitioner complaining of severe abdominal pain over the whole abdomen, nausea and vomiting. Examination revealed that the patient was in distress, with a distended abdomen, decreased bowel sounds and positive tenderness on palpation over the abdominal area. Petitioner again diagnosed pelvic inflammatory disease and urinary tract infection, and referred the patient to the Fatima HMO for observation, IV fluids and x-rays. The patient refused, however, to go to the Fatima HMO and, in fact, evidenced her intent to cancel her membership in the HMO. At or about 6:34 p.m., November 17, 1988, the patient presented to the Jackson Memorial Hospital Emergency Room complaining of severe abdominal pain, nausea and vomiting, and yellow vaginal discharge. Routine laboratory work was undertaken, but when she was taken to the x-ray department and placed on the table she became unresponsive. Cardiopulmonary resuscitation was immediately commenced without success, and the patient was pronounced dead at 11:25 p.m. that evening. An autopsy performed by the Dade County Medical Examiner revealed the following abnormal findings: Diffuse peritonitis Ruptured left fallopian tubal abscess Crude intrauterine contraceptive device Bilateral ovarian cysts Soft liver, spleen, and kidneys Congested lungs Gallstones Scarred gallbladder The autopsy concluded that the cause of death was acute diffuse peritonitis due to ruptured fallopian tubal abscess. On August 11, 1992, the Department forwarded its investigative report and related exhibits to its expert, Stanley H. Bernstein, M.D., for review and opinion concerning petitioner's adherence to the appropriate standard of care. By letter of August 20, 1992, Dr. Bernstein responded to the Department's request as follows: The subject A. G. [petitioner] was treating this 49 year old female for symptoms related to the genito-urinary tract. The scant information noted in the medical office records suggested that the patient had a urinary tract infection as well as symptoms suggesting pelvic inflammatory disease. How ever no studies were initiated to define the extent of the infection in the pelvis. No consultations from either a urologist of [sic] gynecologist were obtained. Although antibiotic was given, there was no realization that the infection in the pelvis might have needed much more intensive therapy. The subject is unknown to me. There was no adequate assessment of the patient's condition. Since pelvic inflammatory disease was suspected, a consultant gynecologist and/or appropriate x-rays of the pelvis should have been done. Since the subject did not suspect the true diagnosis in this case, inappropriate antibiotics were given. Since appropriate diagnostic tests such as ultrasound and/or cat scan of the pelvis were not done the diagnosis could not be appreciated. The plan of treatment was inadequate. There was no adequate monitor being carried out for this patient in regard to antibiotic therapy. The written medical records were woefully inadequate. The applicable standard of care for this patient was not met since the subject did not appreciate the possibility that the patient had more extensive infection in her pelvis. The subject did note that pelvic infection was probably present but she never used appropriate consultants. This suggests that the subject had a poor understanding of the extent to which such infections can cause major catastrophic events. It seem to be that the subject needs further training-certainly in medical conditions where infection is present. On September 24, 1992, the probable cause panel of the Board of Medicine (Board) met in Tampa, Florida. Those present at the meeting were panel members Louis Murray, M.D., chairman, and Mr. Gilbert Rodriguez; Alan Grossman, Assistant Attorney General; Larry McPherson, Jr., chief medical attorney for the Department; Randolph Collete, senior attorney for the Department; and, James Reese, chief medical investigator for the Department. At the commencement of the meeting, the panel members (Dr. Murray and Mr. Rodriguez) acknowledged that they had received and reviewed the complete investigative file pertaining to, among others, the petitioner. With regard to petitioner's case, the transcript of that meeting reflects the following brief discussion: MR. COLLETTE: Item A-03 is on Ada Gonzalez, M.D., case number 90-06789. The case is before the Panel on a recommendation that probable cause be found and an adminis trative complaint be filed. It's alleged that the respondent practiced medicine below the acceptable level of care by failing to appropriately diagnose and treat the patient C. D.'s condition and mistakenly treating her for a urinary tract infection with antibiotics when, in fact, the patient was suffering from an ovarian abscess; and that the respondent failed to keep written medical records justifying the course of treatment; and that the records are sketchy and inadequate. Based upon these facts, the Department is alleging a violation of 458.331(1)(t) and (m), and recommends that probable cause be found and an administrative complaint be filed. MR. RODRIGUEZ: Move a finding of probable cause and the filing of an administrative complaint. MR. MURRAY: Second. MR. MURRAY: So moved a finding of probable cause and the filing of an administrative complaint, seconded, and passed without objection. On October 8, 1992, an administrative complaint was filed against petitioner alleging that she violated the Medical Practices Act, Section 458.331(1)(m) and (t), Florida Statutes, by failing to practice medicine at the accepted standard of care in that petitioner was guilty of "mistakenly treating [the patient] for a urinary tract infection with antibiotics, when in fact [the patient] was suffering from an ovarian abscess," and that petitioner's "medical records are sketchy and inadequate in that they fail to justify [her] course of treatment." Subsequent to the filing of the administrative complaint, petitioner's counsel employed an expert, Martin Arostegui, M.D., to review the matter and render an opinion regarding the merits of the claim against petitioner. Based on his review of the investigative file and an interview with petitioner, Dr. Arostegui concluded: . . . As a result of my extensive review, I have come to an opinion that is substantially different from that of the other physician who previously reviewed this file. I attribute this difference to the level and intensity of my review and scrutiny of the file records and my interview with Dr. Gonzalez who I found to be very professional, concerned and wholly credible. CONCLUSION: Dr. Ada Gonzalez was faced with a very difficult patient who was obese and, as a result, difficult to examine and who appeared to be clinically less sick than she really was. This patient developed a severe pelvic infection as a result of a home made intrauterine contraceptive device which probably was placed illegally and without regard for patient safety. The device was not disclosed to Dr. Gonzalez by the patient and it is reasonable to expect that Dr. Gonzalez would not uncover the device under the circumstances. Dr. Gonzalez attempted to get proper surgical evaluation and care for this patient but the patient refused, went home and, at least six hours later, appeared at an emergency department where the continuity of communication with Dr. Gonzalez was broken, the diagnosis was completely missed and the patient expired. In my opinion, Dr. Ada Gonzalez' care did not fall below community standards. However, Dr. Gonzalez did a less than satisfactory job of documenting her care of this patient and this probably had a role in the formulation of the different opinion by the other reviewing physician. It is particularly worth noting that the physician reviewer did not mention the existence of the home made intrauterine contraceptive device. On or about February 11, 1993, petitioner's counsel provided the Department a copy of their expert's report with the understanding that the Department would provide the report to its expert and if the expert's opinion was materially changed as a result the Department "would entertain taking this case back to probable cause, perhaps dismissing it or softening at least the consent agreement by eliminating perhaps probation or other items" [TR. pp. 15- 16]. Upon receipt and review of the aforesaid report, the Department amended the administrative complaint to correct certain factual inaccuracies. In this regard, paragraphs three, four and five of the original compliant, which had inaccurately averred that petitioner had treated the patient on October 8 and 31, 1988, were dropped; paragraph 7 of the original complaint, now paragraph 4 of the amended complaint, was amended to reflect that petitioner had "referred her [the patient] to a gynecologist in two weeks, and asked her to return in two days," as opposed to having simply "scheduled her to see a gynecologist" as alleged in the original complaint; and paragraph 10 of the original complaint, now paragraph 7 of the amended complaint, was amended to correctly reflect that petitioner referred the patient to Fatima HMO for observation, as opposed to referring her to Jackson Memorial Hospital as alleged in the original complaint. Other than such factual corrections, the premise for the charges leveled against petitioner remained unchanged. On April 16, 1993, the Department forwarded a copy of the amended complaint, which had been filed that date with its clerk, and a copy of petitioner's expert report to Dr. Bernstein for review. The cover letter that accompanied such materials concluded "Please read over the enclosed materials. If you see anything that you want to bring to my attention, please give me a call . . . ." Here, the proof fails to demonstrate any change in Dr. Bernstein's opinion as a consequence of his review of the materials, but fails to explicate why no change occurred. 2/ By letter of April 19, 1993, the Department advised petitioner's counsel of the amendment of the complaint, consequent to her review of his expert's analysis, and encouraged petitioner's agreement to a proposed stipulation for settlement of the case. Ultimately, in September 1993, the parties entered into a written consent agreement, subject to Board approval, to resolve the subject dispute. On or about October 2, 1993, the consent agreement was presented to the Board of Medicine for consideration. Present were fourteen members of the Board; however, one member, Dr. Louis Murray, was excused from participating since he had served on the probable cause panel. Pertinent to this case, the transcript of the Board meeting reflects the following comments by Board members: CHAIRMAN DAUER: Thank you. I just want to make a few opening comments here. I was a little bit disturbed when I saw the materials here, and let me express my concerns here. I think the doctor in this case probably did everything right. You had a patient that she first saw on November 14th, she ordered a beta HCG, it's clearly on the order here, the pregnancy test came back negative, there's no history of the IUD, she appropriately treated her, I think her medical records are adequate, and what happened, she even referred her to a gynecologist. She got the patient back in 48 hours, and I think it was an incident that could not be expected. There's no way to expect this woman to have a ruptured tubal with the results she had done, the history that was not adequate. I think this doctor did everything right. I looked at this case material and I said why is this even here. I think the case should have been dismissed. * * * DR. ECHEVARRIA: I thoroughly agree with your comments, Mr. Chairman. As I read the original AC, I made a note to take issue with the Administrative Complaint to start with, and I really feel that she did things according to the book and it is an unfortunate final ending in this case, and I'm kind of wondering why peritonitis with a ruptured tubal would kill her this quickly. We see people with ruptured diverticulitis, ruptured appendices that linger on and on and on, and it doesn't kill them. So I don't know why the death occurred so quickly without a lot of other symptoms being associated with it. So I think there may have been something like toxic shock or whatever, as a result of the foreign body. I would agree, I would certainly favor a move to dismiss. Following such dialogue, a motion was made by a member of the Board to reject the consent agreement and dismiss the case. The motion passed unanimously, and by final order dated October 8, 1993, filed with the Department of Professional Regulation October 27, 1993, the consent agreement was formally rejected and the case dismissed. Whether the action of the agency was substantially justified or other special circumstances exist which would make an award of attorney's fees and costs unjust. Here, facially, the probable cause panel had before it evidence in the form of its expert's report that would, if his opinions were credited at final hearing, suggest that petitioner had failed to maintain adequate medical records and had failed to maintain the appropriate standard of care. The reliability or efficacy of that expert's opinions has, however, been rendered suspect by the Board's unanimous conclusion that petitioner's medical records and treatment were appropriate. Under such circumstances, and the Department having failed to demonstrate, at hearing, that the information upon which the Board based its decision differed in some marked degree from that considered by the probable cause panel or to offer proof to explicate the basis or reasonableness of the expert's conclusions, the expert's report cannot be accepted at face value as reasonably indicating that the violations had occurred. Therefore, it must be concluded that the Department has failed to demonstrate that its decision to initiate the underlying action was substantially justified or special circumstances exist which would make an award of attorney's fees and costs unjust. While the Department may have failed in its burden to demonstrate that its action was substantially justified, such does not compel the conclusion that any pleading or paper filed by the Department was interposed for an "improper purpose," such that attorney's fees and costs would be appropriately awarded under Section 120.57(1)(b)5, Florida Statutes. To the contrary, the proof fails to support such conclusion. Moreover, and most importantly, the proof fails to demonstrate that the subject charges ever pended before the Division of Administrative Hearings and, therefore, as discussed in the Conclusions of Law, there is no basis upon which to assess attorney's fees and costs under Section 120.57(1)(b)5, Florida Statutes.
The Issue Whether Respondent failed to maintain the qualification set forth in Section 943.13(7), Florida Statutes, requiring a law enforcement officer in the State of Florida to have good moral character by unlawfully being in actual or constructive possession of cocaine on or about May 9, 1988, and by introducing cocaine into her body on or about that date.
Findings Of Fact On November 15, 1974, the State of Florida, acting through Petitioner, certified Respondent as a law enforcement officer. Certificate number 02-11734 was duly issued to Respondent by Petitioner. Respondent is a sworn police officer who has been employed as an investigator in the Special Investigations Unit of the Dade County School System for over 14 years. The Special Investigations Unit is a law enforcement agency consisting of approximately 56 sworn officers whose duties include follow-up investigations on internal issues and the investigation of crimes that are committed on School Board property. There is also a uniformed division which patrols certain of the schools in the Dade County system. The sworn officers of the Special Investigation Unit are required to be certified by Petitioner even though they are employed by the Dade County School Board as School Board employees. The sworn officers of the Special Investigation Unit are represented for collective bargaining purposes with the Dade County School Board by the Police Benevolent Association. The labor contract that was negotiated on behalf of Respondent and her fellow sworn officers of the Special Investigative Unit require that each sworn officer take an annual physical to include the giving of a urine sample from the officer to be analyzed for the presence of controlled substances. Respondent was directed by her employer to present herself on May 9, 1988, for an annual physical examination at Mount Sinai Medical Center. Respondent was aware that an annual physical, including a drug test would be required of her. She was given over two weeks advance notice of the exact date the physical examination would occur. On May 9, 1988, Respondent reported to Mount Sinai Medical Center to submit to the annual physical examination required by her employer. She was given a small sterile sample bottle in which she produced a sample of her urine as instructed. Nurse Cheryl Cain, the Mount Sinai employee responsible for the collection of the urine sample from Respondent, received the urine sample from Respondent and promptly divided the urine sample into two smaller sterile bottles and sealed each of the smaller bottles with its cap and with evidence tape. Nurse Cain followed Mount Sinai's procedures in collecting and sealing the urine sample. The sealed bottles containing Respondent's urine sample were labeled so that each bottle was identified as containing Respondent's urine sample. An identifying series of numbers, referred to as that bottle's bar code, was placed on each of the bottles. Bar code number 118856 was placed on one bottle and bar code number 110783 was placed on the other bottle. The two bottles were then placed in a locked box. On May 9, 1988, the sealed bottles containing Respondent's urine sample were picked up by an employee of Toxicology Testing Service and transported to the facilities of Toxicology Testing Service in Dade County, Florida. Mount Sinai used adequate procedures to ensure that Respondent's urine sample was properly labeled, that the chain of custody was properly maintained, and that the two specimen bottles could not be tampered with without detection. On May 19, 1988, sample bottle 118856 was opened by a laboratory analyst employed by Toxicology Testing Service. A small sample of Respondent's urine sample, referred to as an aliquot, was removed from sample bottle 118856 with a sterile disposable plastic pipette and placed in a sterile disposable cup for analysis. The aliquot of Respondent's urine sample was introduced into the analyzer equipment used by Toxicology Testing Service to screen the sample for the possible presence of controlled substances. The sample screened positive for a cocaine metabolite, which is a metabolized derivative of cocaine created by the natural processing of cocaine by the human body. This screening procedure, known as an emit test, produced a result of 71 on the first screening and a 69 when a separate aliquot from sample 118856 was tested. The emit test is conducted using an Hitachi 705 machine, a piece of equipment that is widely used in the industry. As calibrated, a score of 50 is considered a positive score for cocaine. The purpose of the emit test is to screen those samples that will be later analyzed by gas chromatography mass spectrometry method of testing urine samples. A confirmatory analysis of the sample was then conducted utilizing the gas chromatography mass spectrometry method of testing urine samples. This method is over 99.99% accurate and is the accepted method among toxicologists for identifying drugs and their metabolites. The confirmatory analysis confirmed that Respondent's urine sample was positive for the presence of a cocaine metabolite that can only be produced through the ingestion of cocaine. Subsequent testing on June 3, 1988, by Toxicology Testing Services of aliquots from sample bottle 110783, followed the same procedures as those followed for the analysis of aliquots from sample bottle 118856 and produced similar, positive results for the presence of the cocaine metabolite. Toxicology Testing Service used adequate procedures to ensure that Respondent's urine sample was properly identified, that the chain of custody was properly maintained, and that sample bottle 118856 and sample bottle 110783 had not been tampered with. The testing procedures followed by Toxicology Testing Service are widely accepted in the industry. The equipment used by Toxicology Testing Service was in proper working order. The procedures followed in the taking of Respondent's urine sample and in the subsequent analysis of the aliquots from Respondent's urine sample were consistent with the procedures set forth in Rule 11B-27.00225, Florida Administrative Code, which is entitled "Controlled Substance Testing Procedures". Respondent denies that she has ever used or has unlawfully possessed cocaine. Respondent handles cocaine from time to time in the execution of her official responsibilities, but she was unable to point to an incident that may have produced the positive test results through incidental contact with cocaine. Although samples of the currency in use in South Florida have tested positive for the presence of cocaine, Respondent would not have ingested sufficient quantities of cocaine from currency to produce the level of the cocaine metabolite reflected by the testing. On May 23, 1988, Respondent was advised by her supervisor that she had tested positive for cocaine. Respondent immediately gave another urine sample that tested negative for cocaine. Respondent had attended training sessions that taught that cocaine usually cleared the human body after 72 hours. This is a misconception. The speed with which the cocaine metabolite clears the human system depends on many variable factors, including the general physical condition of the person involved, the amounts of liquids consumed by the person, and the amount of exercise by the person. Cocaine metabolite can be detected in the human body more than 72 hours after its ingestion. Respondent failed to offer any plausible explanation for the positive results of cocaine being detected in her system that would permit any conclusion other than the conclusion that she had voluntarily ingested cocaine. Respondent has been an exemplary employee since her initial employment with the Special Investigative Unit. She has never been suspected of drug use by her superiors. None of her fellow officers ever reported that they suspected Respondent of drug use. Respondent has had several commendations during her term of service. Her performance evaluations have always been satisfactory or higher. Based on the charges involved in the pending proceeding, the Dade County School Board suspended Respondent's employment and instituted proceedings to discharge her from its employ. Following an administrative hearing, the hearing officer (who was not employed by or assigned by the Division of Administrative Hearings) found that the drug tests that found the positive results for cocaine were not reliable and recommended that Respondent be reinstated to her employment. The finding by the previous hearing officer that the tests were not reliable is not binding here and is contrary to the greater weight of the evidence in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards Training Commission, enter a final order which finds that Respondent failed to maintained good moral character and which further revokes the certification of Respondent as a law enforcement officer. DONE AND ENTERED this 29th day of January, 1990, in Tallahassee, Leon County, Florida. CLAUD B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1990. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 H. T. Smith, Esquire 1017 N.W. 9th Court Miami, Florida 33136 Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. Petitioner, Department of Professional Regulation, is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes. Respondent is, and has been at all times material hereto, a licensed physician in the state of Florida, having been issued license number ME 0036970. Respondent worked at the Cruz Blanca Clinic from approximately February of 1984 through either October or November of 1985. During that time Respondent worked as a general practitioner and was also the medical director of the Cruz Blanca Clinic. As medical director, Respondent was responsible for the supervision and control of all medical practice at the clinic. Respondent's normal working hours at the Cruz Blanca Clinic were from approximately 8:00 or 8:30 in the morning until approximately 2:30 or 3:00 in the afternoon. During those working hours, Respondent was usually the only licensed medical doctor present on the premises of the Cruz Blanca Clinic. The patients who attended the Cruz Blanca Clinic paid a fee for the privilege of attending the clinic and receiving medical services. The monthly fee was between ten and fifteen dollars per family. Patients requiring general medical services attended the clinic during Respondent's working hours. During the afternoon hours, from approximately 2:00 p.m. until 5:30 p.m., certain medical specialists would see clinic patients by appointment. At all times material, Julio Diaz owned the Cruz Blanca Clinic. At all times material, Julio Diaz, Norma Rodriguez, and Magali Acosta were licensed to practice medicine in a foreign country, but they were not licensed to practice medicine in the state of Florida, nor were they licensed as physician's assistants in the state of Florida. Respondent knew that Diaz, Acosta, and Rodriguez were not licensed to practice medicine in the state of Florida. During 1984 and 1985 while Respondent was the medical director at the Cruz Blanca Clinic, Julio Diaz, Norma Rodriguez, and Magali Acosta frequently and regularly held themselves out as, and acted as, medical doctors or physicians at the Cruz Blanca Clinic. Specifically, they regularly saw patients, took medical histories, checked blood pressure, drew blood samples, took urine and fecal samples, and performed physical examinations. Julio Diaz and Norma Rodriguez went far beyond the routine tasks described above and were in total charge of the medical treatment of some of their patients. Patients with gynecological problems were usually assigned to Norma Rodriguez, pediatric patients were usually assigned to Magali Acosta, and Julio Diaz usually saw the general practice patients. Respondent knew that Diaz, Acosta, and Rodriguez were examining, treating, diagnosing, and prescribing for patients at the Cruz Blanca Clinic. Respondent also knew that at least some of the examining, treating, diagnosing, and prescribing activities of Diaz, Acosta, and Rodriguez were being done without Respondent's supervision. During 1984 and 1985, Maria Rodriguez was a frequent patient at the Cruz Blanca Clinic during the time periods when Respondent was the only licensed medical doctor on the premises of the clinic. On only one occasion Maria Rodriguez was seen by Respondent. On all of her other visits the only doctors', she saw were Julio Diaz or Norma Rodriguez. When Maria Rodriguez was being seen by Julio Diaz or Norma Rodriguez, there was no one present supervising either of the "doctors." Maria Rodriguez believed that Julio Diaz was a medical doctor and he treated her for back problems. Thereafter, Maria Rodriguez was usually seen by Norma Rodriguez, who she also believed to be a doctor. In 1985 Norma Rodriguez injected Maria Rodriguez as part of the treatment of the latter's blood pressure problems. On several occasions Maria Rodriguez saw both Julio Diaz and Norma Rodriguez filling out prescriptions, and on several occasions they both diagnosed and treated her. The prescriptions filled out by Julio Diaz and Norma Rodriguez were signed by Respondent. Barbara Socorro was another patient of the Cruz Blanca Clinic during 1984 and 1985. She was treated at the Clinic for such conditions as common colds, stomach flu, viruses, and gynecological problems. The only "doctor" who examined or treated Barbara Socorro at the Cruz Blanca Clinic was Norma Rodriguez. Norma Rodriguez performed at least one gynecological examination on Barbara Socorro at the Cruz Blanca Clinic. Norma Rodriguez wrote several prescriptions for Barbara Socorro. Barbara Socorro never saw Respondent at the Cruz Blanca clinic. Barbara Socorro believed that Norma Rodriguez was a medical doctor and was told by the receptionist at the Cruz Blanca Clinic that Norma Rodriguez was a gynecologist. Marisol Vilato was another patient of the Cruz Blanca Clinic who during 1984 and 1985 was seen several times for gynecological problems. The only "doctor" seen by Marisol Vilato was Norma Rodriguez. Norma Rodriguez examined Marisol Vilato, including internal gynecological examination; diagnosed and treated her condition; and filled out prescriptions for her. While employed as the medical director at the Cruz Blanca Clinic, Respondent frequently and regularly signed prescriptions filled out by Diaz, Acosta, and Rodriguez because as unlicensed doctors their signatures on prescriptions would not be honored by pharmacies. Without this aid and assistance by Respondent, it would not have been possible for Diaz, Acosta, and Rodriguez to prescribe for the patients at the Cruz Blanca Clinic.
Recommendation Based on all of the foregoing, it is recommended that the Board of Medical Examiners enter a Final Order to the following effect: Dismissing the charges alleged in Counts, 2, 3, and 6 of the Administrative Complaint: Finding Respondent guilty of violations of Section 458.331(1)(g), (t), and (w)' Florida Statutes, as alleged in Counts 1, 4, and 5 of the Administrative Complaint, and Imposing on Respondent appropriate penalties authorized by Section 458.331(2), Florida Statutes. In determining the appropriate penalty to recommend, I have given particular consideration to the nature of the violations; to the fact that although unlicensed practice of medicine was permitted, there was no evidence of harm to any patient; and to the fact that Respondent appears to be an elderly man who is not in the best of health. With those considerations in mind, it is recommended that the Board's Final Order include the following specific penalties: (a) A So-day suspension of Respondent's license to practice medicine; |(b) A one-year period of probation to follow the suspension, with a condition of probation that Respondent work under the supervision of another licensed physician and that he attend continuing education courses specified by the Board with an emphasis on the legal duties and responsibilities of physicians; and (c) An administrative fine in the total amount of S. 00 DONE AND ORDERED this 28th day of October, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1986 COPIES FURNISHED: Michael J Cohen, Esquire CO BN & MEE, P A 517 Southwest First Avenue Fort Lauderdale, Florida 33301 Frank Diaz Silveira, Esquire DIAZ SILVEIRA 6 ASSOCIATES, P A 2153 Coral Way, Suite 607 Miami, Florida 33145 Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings Slocum Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 APPENDIX The following are my specific rulings on each of the proposed findings of fact submitted by both of the parties. Proposed findings submitted by Petitioner Paragraphs 1, 2, 3, 4, and 5: These paragraphs are accepted. Paragraph 6: The first sentence of this paragraph is rejected as constituting commentary about conflicts in the evidence rather than a proposed finding of fact. The remainder of this paragraph is accepted in substance. Paragraph 7: This paragraph is accepted in substance. Paragraph 8: The first eight sentences of this paragraph are accepted in substance. The last sentence is rejected as argument rather than a proposed finding of fact. (The argument is a correct argument, but it is not a proposed finding.) Paragraphs 9 and 10: These paragraphs are accepted. Paragraph 11 and the five unnumbered paragraphs following paragraph 11: These paragraphs are rejected as primarily constituting arguments rather than proposed findings of fact. (These arguments are essentially correct, but are nevertheless arguments and do not belong in the findings of fact.) Paragraph 12: This paragraph is also rejected as constituting argument rather than proposed findings. Proposed findings submitted by Respondent This paragraph is rejected as constituting a proposed conclusion of law rather than a proposed finding of fact This paragraph is rejected as constituting summaries of testimony (some of which is conflicting) rather than proposed findings of fact. Counsel for all parties are reminded that summaries of testimony may be a useful technique to support an argument in favor of a particular proposed finding, but such summaries do not constitute proposed findings, especially when the summaries include conflicting testimony. The findings of fact in this Recommended Order contain specific findings regarding the activities engaged in by unlicensed physicians, which findings are based on competent substantial evidence and are consistent with the greater weight of the evidence. The first sentence of this paragraph is rejected as constituting a summary of a portion of the testimony rather than proposed finding of fact. The second sentence of this paragraph is rejected as constituting a summary of a portion of the evidence rather than a proposed finding of fact. Further, the details summarized for the most part relate to subordinate details that are irrelevant or unnecessary to the disposition of this case. This paragraph is rejected as constituting a summary of a portion of the evidence, or as constituting argument about the evidence, rather than a proposed finding of fact. Further, the factual assumptions implicit in this paragraph are contrary to the greater weight of the evidence. This paragraph is rejected as constituting argument instead of proposed findings of fact. This paragraph is rejected as constituting a summary of testimony rather than proposed findings of fact. Further the details summarized are subordinate and irrelevant or unnecessary details. This paragraph is rejected as constituting argument instead of proposed findings of fact. ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE BOARD OF MEDICINE DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, PEDRO F. BERNAL, M.D., DPR CASE NOS. 0055322 DOAH CASE NO. 85-1758 Respondent. LICENSE NO. ME 0036970 /
