Findings Of Fact By application dated July 20, 1995, Petitioner applied to Respondent for a Clinical Laboratory Supervisor's license. Petitioner has not earned a doctoral degree in clinical laboratory science, one of the specialty areas, or one of the chemical or biological sciences. Petitioner does not have a masters degree in clinical laboratory science, one of the specialty areas, or one of the chemical or biological sciences. Petitioner does not have a baccalaureate degree in medical technology, one of the specialty areas, or one of the chemical or biological sciences. Petitioner does have a baccalaureate degree in business administration and has taken college level courses in biology, human anatomy and chemistry. Petitioner has demonstrated that she has five years of pertinent experience following receipt of the degree. Accompanying her application for licensure, Petitioner presented documentation that she completed an advanced clinical practicum as a Specialist in Blood Bank Technology in 1995 and has been certified by the national Board of Registry in Chicago, Illinois. Petitioner did submit an evaluation of her college transcript by a qualified staff member of the Board of Registry, Chicago, Illinois. Petitioner did not submit an evaluation of her college transcript by a Chairperson of a chemical or biological science department of a regionally accredited U. S. college or university. Petitioner did not file a motion for an extension of time in which to submit an evaluation of her college transcript prior to the expiration of the thirty day extension period.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure as a Clinical Laboratory Supervisor. DONE AND ENTERED this 27th day of August, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE, 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 August, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-2187 Petitioner's proposed findings of fact. Petitioner did not submit proposed findings. Respondent's proposed findings of fact. Accepted in substance: paragraphs 1,4,5,6,7,8,9,10. Rejected as subsumed or irrelevant and immaterial: Paragraphs 2 (see Preliminary Statement) and 3 (see preliminary statement). COPIES FURNISHED: Lealand L. McCharen Assistant Attorney General Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 Diane Orcutt, Executive Director Board of Clinical Laboratory Personnel Agency for Health Care Administration Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Mary Donna Lee, pro se 2544 Robert Trent Jones Drive Apartment Number 816 Orlando, Florida 32835
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 issues in this case are whether Respondent violated Subsection 458.331(1)(t), Florida Statutes (2003),1 and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Dr. Nicker was a licensed physician within the State of Florida, having been issued license number ME 73441. Dr. Nicker is board- certified in emergency medicine. T.F. was an 11-year-old, developmentally delayed autistic child, who appeared "older, adult size for age 11 years." He did not communicate verbally, but could communicate using an electronic computer and a picture exchange system. On the evening of January 10, 2004, T.F. ate some pizza, and subsequently threw up three or four times. His mother, J.F., slept with him that night in case he got sick during the night. The next morning T.F. awoke congested with a lot of mucous and appeared to have a cold. T.F. did not have the ability to blow his nose; therefore, his mother had to suction the mucous from his nasal passages. He did not eat anything during the day, but drank liquids. His condition worsened as the day went on. His mother took his temperature with an ear thermometer, and his temperature registered 101 degrees, which was the highest temperature the thermometer would register. During the night of January 11, 2004, and into the early morning of January 12, 2004, T.F.'s condition deteriorated. He had trouble breathing and felt warmer to the touch, although the ear thermometer registered only a temperature of 101 degrees. Around 2 a.m. on January 12, 2004, J.F. awoke T.F.'s sister and told her they needed to take T.F. to the hospital. T.F.'s mother and sister got him into the car with the intention of taking him to All Children's Hospital. Because of T.F.'s deteriorating condition, J.F. decided to take him to Morton Mease Plant, a nearby hospital. When they arrived at the hospital at 2:37 a.m., T.F. was seen by a triage nurse. J.F. told the nurse that T.F. had been throwing up on Saturday night, woke up congested on Sunday, continued to have a temperature of 101 degrees, and experienced heavy breathing. The initial examination by the triage nurse noted that T.F.'s blood pressure was 103/62; his pulse rate was 166; his respiration was 40; and he had an oxygen saturation of 93 percent. The triage nurse did not document taking T.F.'s temperature. After the triage nurse did an initial examination, T.F. was examined at 3 a.m. by Holly Yeager, a physician's assistant. J.F. again relayed T.F.'s history of vomiting, fever, congestion, and heavy breathing. Ms. Yeager's examination revealed that T.F. had a purulent nasal drainage, had dried emesis on his lips, tongue, and pajama shirt, and had an increased temperature to the skin. Ms. Yeager noted that T.F.'s temperature had not been taken by the triage nurse and ordered a rectal temperature to be taken. Ms. Yeager also ordered a 5 mg neb treatment with deep nasal suctioning, an IV at 500 cc bolus, CBC, blood culture, basic metabolic panel, and a chest x-ray. A chest x-ray was taken of T.F. to determine if he had acute aspiration pneumonia. The x-ray was negative. Dr. Nicker saw T.F. for the first time at 3:15 a.m. Immediately prior to treating T.F., Dr. Nicker had been treating a critically ill patient who required airway management and resuscitative measures. When T.F. came to the Morton Plant Mease emergency room, there was one physician, Dr. Nicker, and one physician's assistant, Ms. Yeager, on staff to cover the patients being treated in the emergency room. Dr. Nicker ordered 40 percent oxygen to be administered to T.F. Because T.F. would not keep the oxygen mask on his face, his mother held the oxygen mask in front of his face. Dr. Nicker ordered that an arterial blood gas (ABG) be taken. In addition to ordering oxygen, Dr. Nicker ordered broad spectrum antibiotics to be administered to T.F. During his initial examination of T.F., Dr. Nicker did not look at T.F.'s medical chart, including the assessment form completed by the triage nurse. Dr. Nicker did examine T.F. from head to toe. Dr. Nicker was unaware that T.F.'s temperature had not been taken; however he did lay hands on T.F. and did not feel that T.F. had a significant temperature at that time. Based on his experience as a physician, Dr. Nicker is able to tell by feeling a patient whether the patient has a significant temperature. After making his initial examination and giving orders for oxygen, antibiotics, and further tests, Dr. Nicker left T.F. to attend to other patients in the emergency room. Dr. Nicker had approximately 15 patients in the emergency room during the time T.F. was being treated at Morton Plant Mease. After Dr. Nicker left T.F. to attend other patients, the nurses and physician assistant attempted to insert an IV line into T.F., and the respiratory therapist attempted to get an ABG. T.F. was combative and uncooperative with the medical staff in their attempts to treat T.F. An IV was started, but the respiratory therapist was unable to get an ABG. Dr. Nicker returned to T.F.'s bedside at 3:53 a.m. Because the respiratory therapist was unable to get an ABG, Dr. Nicker drew blood from T.F.'s femoral artery to get the ABG. At the time the ABG was taken, T.F. was essentially on room air because the oxygen mask was not on T.F.'s face for any prolonged period of time. The ABG revealed that the oxygen saturation had dropped to 89 percent. Dr. Nicker ordered 100 percent oxygen to be administered to T.F. using a bigger mask. Dr. Nicker left the treating room and returned at 4:15 a.m. At this time, T.F.'s condition had worsened. He was lethargic; his breathing was slower; and he was no longer making eye contact with family members. Because of the deterioration in his condition, ventilation and oxygenation became a primary concern. Dr. Nicker made the decision to intubate T.F. so that he could be placed on a ventilator. T.F. was transferred to a larger room for the intubation to accommodate the size of the ventilator. At 4:30 a.m., T.F. was given intravenously a sedative, Versed. Dr. Nicker was able to intubate T.F. successfully, which was confirmed by an x-ray. At 4:45 a.m., T.F.'s vital signs were taken. T.F.'s temperature was 108 degrees, and his blood pressure had dropped to 65/38. T.F. was given Tylenol rectally at 4:50 a.m., and ice was applied to T.F.'s groin and his axilla. The dramatic fall in blood pressure, which T.F. experienced after the intubation, can occur when a patient is dehydrated and has a low intravascular volume. The resulting hypotension is life threatening and must be dealt with by delivering more intravenous fluid to the patient. In order to get more fluids in T.F., Dr. Nicker attempted to get an intravenous central line established. His attempt to get a right intravenous central line established was unsuccessful; however, he was successful in establishing a left central line at 5:15 a.m. After the central line was established and fluids were administered intravenously, T.F.'s blood pressure steadily increased. At 6 a.m., T.F.'s temperature was taken, and his fever had dropped to 105 degrees. By 6:50 a.m., his temperature had dropped to 103.8 degrees. T.F. was transferred to the intensive care unit at All Children's Hospital via helicopter at 7:15 a.m. T.F. died on January 16, 2004, from influenza A and acute renal failure. The Department contends that Dr. Nicker did not meet the standard of care required of similar physicians under similar conditions and circumstances. The Department's expert witness, Dr. James Meade, opined that Dr. Nicker should have sedated T.F. intramuscularly and intubated T.F. earlier than Dr. Nicker did. Dr. Meade suggested that the drug Droperidol should have been used to sedate T.F. so that IV's could be inserted and tests such as ABG could be done. Droperidol carries a black box warning from the Food and Drug Administration. Several hospitals removed the drug from their formulary. The drug's manufacturer indicated that the drug should be used and reserved only for use and treatment of patients who fail to show an acceptable response to other adequate treatments either because of insufficient effectiveness or ability to achieve an effective dose due to intolerable adverse effects from those other drugs. Sedation of a patient relaxes the patient's gag reflex that protects his airway. In the case of T.F, who had a history of repeated vomiting and who had dried emesis on his clothing and around his mouth, sedating him would have robbed him of his ability to protect his airway and set him up for aspiration pneumonia. Additionally, any sedation would have been better if done intravenously rather than intramuscularly so that the amount of sedation could be monitored. Contrary to the opinion of Dr. Meade, intramuscular sedation was contraindicated. Intubation carries great risks such as decrease in blood pressure; placing the tube in the esophagus; and causing trauma or injury to the vocal cords resulting in bleeding and loss of the airway. Based on the ABG results and given the risks associated with intubation, it was appropriate for Dr. Nicker to give additional oxygen after the first ABG rather than intubate T.F. at that time. Intubation was not indicated until T.F.'s mental status changed at 4:15 a.m. and he was fatiguing in terms of his respiratory efforts. The Department contends that Dr. Nicker failed to meet the standard of care for similar physicians in similar circumstances and conditions because he failed to note that T.F.'s temperature had not been recorded until two hours after T.F. had arrived at the hospital. Although, Dr. Nicker did not look at the triage nurse's assessment, he did feel T.F. when he examined him and determined that T.F.'s temperature was not significantly elevated. Thus, he made his own assessment of T.F.'s temperature based on his medical training and experience.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Nicker did not violate Subsection 458.331(1)(t), Florida Statutes, and dismissing the Administrative Complaint. DONE AND ENTERED this 12th day of June, 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 12th day of June, 2006.
Findings Of Fact Valaria Alsina has been licensed as a medical physician in Florida since 1976 and was so licensed at all times here relevant. On August 19, 1980, Elsa Trujillo and her daughter Nancy, age 12, visited the office of Respondent for treatment. This was the initial visit to Respondent by these patients. Patient histories in Exhibit 3 for Elsa show the first entry to be October 7, 1980; however, the language used in this history clearly shows this to be not Elsa's first visit. Respondent's testimony and reports submitted by Respondent to Petitioner, Exhibit 3, reveal initial complaints by this patient to be dizziness, urinary tract infection, vomiting, vaginal discharge, headache, depression, burning sensation while voiding, and dark urine. Respondent did a urinalysis, took blood for testing, did a PAP smear and vaginal irrigation. Other treatment rendered this patient was not disclosed. The skin and blood tests performed constitute the gravamen of the charges here involved. In Exhibit 1 Respondent billed the insurance carrier for Elsa $359.50 for this visit of August 19, 1980. Those blood tests, the necessity for some of which is questioned by Petitioner, are for glucose, BUN, creatinine, calcium, phosphorus, uric acid, electrolytes (including sodium, potassium, chlorides, and carbon dioxide) total protein, bilirubin, and albumin. The reason the need for these tests is questioned is because they were billed to Prudential Insurance Company as individual tests for each of which Respondent billed from $10.00 to $20.00. These tests are normally performed by medical laboratories in groups, automatically, in which testing machines are programmed to do certain tests on one blood sample introduced into the testing machine. These automatic testing procedures are generically designated "SMA" and are known as SMAC-6, SMAC-16, SMAC-26, etc., with the number denoting the number of tests performed. Those blood tests performed on the Trujillos are all included in the SMAC-22 program for which a laboratory normally charges the doctor $10-$12. Had these tests been charged as SMAC-22, the fact that several were unnecessary would have been accepted because, as a SMAC-22 neither physical nor financial harm resulted to the patient from the unnecessary blood tests conducted. The SMAC-22 could have been performed as cheaply as or cheaper than two manual and individual tests. Since Petitioner's expert witnesses both agreed that some of the tests conducted on this patient were indicated from the symptoms presented, the only fault they found was in Respondent's performing, and charging the patient for, individual and manual blood tests for which there was no medical justification. Nancy Trujillo was seen by Respondent on August 19, 1980. For this visit Respondent billed Prudential Insurance Company $262.50. Clinical data prepared by Respondent for Nancy shows usual childhood diseases, tonsillectomy, adenoid-ectomy, fever, sore throat accompanied by ear pains and swelling, patient complaining of weakness, history of anemia, poor appetite, burning sensation when voiding, dark urine, and a skin rash on right leg. Patient's weight was recorded as 70 pounds, but neither height nor temperature was recorded. In addition to a complete physical examination, a urinalysis, skin culture, and sensitivity test were done, and blood chemistry tests included complete blood count, calcium, glucose, BUN, creatinine, albumin, bilirubin, total protein, and SGPT. These blood tests, all of which (except the cbc) are included in a SMAC-22, were billed as having been performed as individual tests at costs ranging from $10.00 to $17.50 each. Treatment prescribed for Nancy consisted of aspirin suppositories. Respondent testified that Nancy was under weight, although her height was not measured, and that she took Nancy's temperature but failed to record it. Jose Trujillo was seen by Respondent on February 4, 1981, as a patient. Clinical data recorded by Respondent on this visit (Exhibit 3) include ". . . history of diverticulitis of colon, states that have diet but feels like some abdominal discomfort accompanied by diarrhea and feels weak. Patient with history of admission in the hospital, admission Palmetto General Hospital. Some lower discomfort abdomen and dark urine." For this visit prudential Insurance Company was billed $340 for complete physical examination (genital exam omitted) complete blood count; urinalysis; blood tests including glucose, BUN, creatinine, calcium, phosphorus, uric acid, electrolytes (including calcium, potassium, chlorides, and carbon dioxide) total protein, cholesterol, triglycerides, SGOT, SGPT, and alkaline phosphates; urine culture; sensitivity test; and collection and handling. The blood tests were all included in a SMAC- 22 but were billed as individual and manually performed tests with costs ranging from $10.00 to $20.00 each. Petitioner's expert witnesses both testified that some of the tests performed on these three patients were indicated by the symptoms and complaints described. Other tests conducted were not appropriate for the symptoms given. They also agreed that had these tests been conducted and billed as a SMAC-22 they would not consider that that could be a violation of the Medical Practices Act because, even though some of these tests were not medically indicated, they "come with the package" and would not increase the cost to the patient. However, when conducted manually and individually and so billed, the practice of conducting blood tests for which there is no medical justification does not conform to the generally prevailing standards in the medical community. Because of the findings below, it is unnecessary to denote those tests performed on each of the Trujillos for which there was no medical justification. Although billed to Prudential Insurance Company as manually and individually performed, the blood tests on the three patients above-named were conducted as a SMAC-22 and were not performed manually and individually as testified to by Respondent. This determination is based on the following facts, circumstances, and rationalizations: Respondent sent the blood samples from these three patients to Central Medical Laboratory, Inc., for a SMAC-22 test. Respondent testified that she performed each of the series of 10 to 15 tests on the blood samples of these patients in 20 to 30 minutes; however, other medical witnesses testified it took a trained technician 20 minutes to perform one of these blood tests manually. The latter testimony is deemed more credible. Many of these tests have subjective characteristics, such as color comparisons, and identical results from the same blood sample tested by two technicians or run through the same automated process would be rare. The odds against a technician performing individual and manual tests on 16 blood samples and obtaining the identical result on all tests that is obtained from a commercial laboratory SMA test is astronomical. Yet, the one report obtained from Central Medical Laboratory for the SMAC-22 conducted on the blood sample from Jose Trujillo (Exhibit 7) is identical to the "manual and individual" test report maintained by Respondent for the same blood sample in Exhibit 3--with one exception. The laboratory found the triglyceride test to be 254 MG/DL, well outside the 30-175 range for this test. On Exhibit 3 Respondent recorded 175 for this test. She testified she sent blood samples from the three Trujillos to the laboratory to have a check on her tests but did not ask the laboratory to do a recheck on the triglycerides test on Jose or recheck her test for triglycerides after receiving the laboratory report. Only a small amount of blood (5 or 10 cc) is required for an automated procedure for up to 40 different tests, whereas at least three times this amount of serum would be required for 10 tests conducted manually or individually. Accordingly, manual testing would require the drawing of a lot more blood than would be required for automated testing in a commercial lab. Respondent testified that she sent one-half of the blood sample taken on each Trujillo to the laboratory and kept the other one-half to test in her office. Commercial medical laboratories are licensed by the state; are checked for compliance with proper procedures; equipment used is checked for proper calibration at frequent intervals; reagents used in the testing is frequently replaced; and, when compared to the equipment, procedures, calibration, and reagents used in a physician's office which are subject to no regulation, the former should provide the more reliable test in a much shorter time. The equipment in Respondent's office is capable of being used to conduct all of the tests on these three patients for which Respondent billed Prudential Insurance Company. No rational explanation was provided to justify having a SMAC-22 performed and duplicating these tests manually. Respondent's testimony that the SMAC-22 was ordered to check the results of the manual tests she performed is not credible. If a check on the manual tests conducted on blood samples of Nancy and Elsa Trujillo for the August 17, 1980, visit was desired, it would appear appropriate to check the office procedures by doing a SMAC-22 on only one of those blood samples, rather than have both of these samples checked as was done here. Repeating this "check" on the sample taken from Jose Trujillo on February 4, 1981, does not make sense. Either the laboratory test is trusted or it is not. The same applies to the individual tests conducted manually in the office. If confident of the procedures, there would be no reason for Respondent to check the manual tests conducted in the office by sending one-half of the serum to a commercial laboratory. Respondent testified that Central Medical Laboratory picks up blood samples at her office daily. This suggests that some tests are routinely ordered by Respondent and conducted by the laboratory, and no evidence was presented to rebut such a conclusion. On the other hand, Petitioner presented no evidence of the volume of tests conducted by Central Medical Laboratory for Respondent which would solidify this conclusion. Nor did Petitioner submit the SMAC-22 results obtained by Central Medical Laboratory for the blood test conducted on the serum taken from Elsa and Nancy Trujillo on August 17, 1980, to see if they too were identical to the results shown in Exhibit 3. The only rational explanation for having SMAC-22 tests performed in a commercial laboratory and reporting these tests as done individually and manually in Respondent's office is the amount the insurance company will pay for the latter is nearly ten times what they will pay for the former. Laboratory tests billed for Jose Trujillo for the February 4, 1981, visit amount to nearly $250. Charges submitted for these tests reported on the SMAC-22 (Exhibit 7) amount to $187. Respondent testified she paid for the SMAC-22 tests she ordered and did not bill the insurance company for these tests because "they won't pay for both" SMAC and manual tests performed on the same sample. Since the lab charged Respondent only $10-$12 for the SMAC-22 tests conducted, the insurance company would not pay $187 if these tests were charged as automated tests. Considerable evidence was submitted that there was no medical justification for certain of the tests performed on Nancy, Elsa, and Jose Trujillo. For Nancy, these unnecessary tests included tests for calcium, glucose, BUN, creatinine, albumin, bilirubin, total protein, and SGPT. For Elsa, these unnecessary tests were calcium, phosphorus, uric acid, total protein, bilirubin, with either BUN or creatinine justified, but not both. For Jose, no medical justification was shown for manually performed tests for glucose, calcium, phosphorus, electrolytes, SGDT and SGNT. In view of the finding above, that these tests were not manually done but were performed as a SMAC-22, the fact that they are not medically justified if done manually becomes immaterial.
Findings Of Fact At all times material hereto, Respondent has been licensed to practice medicine in the State of Florida, having been issued license number ME 0034265. In the course of his medical practice, Respondent examined and/or treated the following patients during the following time periods: Marisella Conde January 25, 1980 through March 31, 1980 Pedro B. Conde February 23, 1980 through April 14, 1980 Michelle Conde February 26, 1980 through February 27, 1980 Ana Franjul January 20, 1981 Alfonso deLaTorre September 11, 1980 through November 3, 1980 Zoraida Estrada March 5, 1980 through January 7, 1981 Maria Estrada June 1, 1981 Dulce Febles June 30, 1980 through June 9, 1981 Maria Febles August 5, 1980 through October 17, 1980 At all times material here to, Respondent had in his office a Dow Spectophotometer, a table-sized colorimeter manufactured by Dow Chemical Company and used to diagnose the chemical content of blood. The machine compares the color of a particular reagent with the color of a patient's plasma sample and gives a reading which is interpreted by the physician to achieve a diagnosis. A different, specific reagent is used to achieve each specific component analysis of a plasma sample. The plasma must first be separated from the blood sample by centrifuge, which separates the whole blood from the plasma. The plasma sample must be manually, individually prepared for each specific blood analysis desired and must pass through seven different steps in the Dow machine before completion. A separate vial of plasma and reagent must be manually prepared for each specific blood component test, such as cholesterol or bilirubin, and must be individually loaded into the Dow machine. The machine processes one vial at a time. Each analysis test is prepared separately and manually only the ultimate reading is performed automatically by the machine. The reading is then interpreted by the physician. In September or October 1981, Respondent replaced his Dow machine with an ACA II, a room-sized computer/clinical analyzer manufactured by the Dupont Company and used to analyze blood samples. Respondent is the only private Florida physician known to own and operate an ACA II in his office. The ACA II is in use by several hospitals in the Miami area. The SMAC machine is manufactured by the Technicon Company and is one of the first automated blood analysis machines available. The machine takes one blood sample and is capable of performing up to 26 different analyses from the one blood sample loaded into the machine. It does not require separate, manual preparation of a blood sample for each analysis, as do the Dow and the ACA II machines. The SMAC machine inserts the same needle device into the blood sample for each analysis performed and inserts the same needle device into the blood samples of different patients loaded into the machine. The Technicon SMAC machine is not as accurate as the ACA II machine. Although the Technicon SMAC machine is as accurate as the Dow machine, tests run on the Dow colorimeter have more quality control, since blood samples are individually analyzed and not mixed. The word "SMAC" has come to be generically used by physicians to mean blood tests performed on any type of machine. Thus, the term "SMAC" is generic for blood tests as the word "Frigidaire" is generic for refrigerators. Physicians refer to blood tests as "SMAC 22" or "SMAC 26" to denote a blood test involving 22 or 26, or any other number of analyses, without meaning a blood test performed on Technicon's SMAC machine. Respondent follows the practice of-most other physicians in indicating on his billings that a "SMAC 26" test has been performed, for example, which simply means that a blood test of 26 analyses has been performed. When Respondent billed for "SMAC" tests with each of the nine patients named in the Administrative Complaint, his billing used the word "SMAC" followed by the number of analyses, such as "SMAC 22" or "SMAC 26," and then specifically referred the reader to the attached page. The attached sheet of paper itemized each test included within the battery of analyses and the specific fee being charged by Respondent for each individual analysis. Accordingly, Respondent's use of the generic heading next to the total cost for the blood testing, followed by an itemized listing of each individual analysis together with its specific fee, reflects the chemical analyses as being actually performed as separate blood tests individually processed rather than blood testing run by a Technicon SMAC machine. Respondent's method of billing is an appropriate way to bill a patient for individual tests performed, since Respondent was not using a machine which produces multiple readings from one blood sample loaded into the machine. Occasionally, Respondent used an independent laboratory to perform the blood test as a double check to the test performed in his office by him. In those instances, he did not bill for the independent laboratory test. Respondent himself performed the blood tests for which he billed in the manner in which he billed, each test being performed separately and individually as billed. Respondent advised each of the patients named in the Administrative Complaint as to the use and costs of the tests he intended to perform before performing them, thus obtaining his patient's consent to both the testing and the charges therefor. There are no standards in the practice of medicine prohibiting the use of a Dow machine. There is no maximum fee which can be charged by a physician for laboratory tests, throat cultures or hospital visitations. Petitioner based its entire case on two discovery depositions taken by the Respondent: the deposition of a physician serving as a consultant to Petitioner on this case, and the deposition of a physician employed by an insurance company to whom Respondent sent billings for several of the patients named in the Administrative Complaint filed herein. Both doctors based their opinions on the assumptions that Respondent did not have the equipment in his office capable of testing as was reflected in Respondent's billing, that Respondent did not perform the blood tests but rather had them performed by an independent lab, and that the equipment which Respondent allegedly used could not be purchased. Neither doctor has ever discussed Respondent's billing practices with Respondent or with the patients in question, neither has ever seen Respondent's office or equipment, and neither has examined any of the patients in question nor caused any of the patients in question to be examined. Although each doctor believed that Respondent's charges for testing and examination were excessive, that many of the procedures utilized by Respondent were unnecessary, that Respondent inadequately explained his billing, and that the frequency with which Respondent repeated chemistry profiles on his patients was not medically justified, both doctors admitted that they had inadequate information upon which to support their medical opinions for the reason that both doctors based their entire testimony on only the billings that Respondent rendered to each of the patients; and neither doctor had ever seen any of the patient's medical records, which records include Respondent's office notes which contain the results of his examination of the patients, his impressions, his reasoning for each diagnosis, and his intended course of treatment. Long before the filing of the Administrative Complaint in this cause, the insurance company which referred this matter to Petitioner for investigation sent its own investigator to Respondent's office to ascertain if Respondent had the equipment necessary to perform individual blood testing. The insurance company investigator reported Respondent had much equipment, including the Dow Spectophotometer. Yet that insurance company requested an investigation by Petitioner. Petitioner then sent its investigator to Respondent's office to ascertain if Respondent owned any testing equipment. Respondent showed his machinery, specifically the Dow Spectophotometer, to Petitioner's investigator and demonstrated the equipment by taking a blood sample from the investigator and performing the individualized testing on that sample on the Dow machine. As a result of that demonstration, Petitioner's investigator became a patient of the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the charges contained in the Administrative Complaint filed herein and dismissing the Administrative Complaint filed against him. DONE and RECOMMENDED this day of April, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 20th day of April, 1983. COPIES FURNISHED: Spiro T. Kypreos, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Paul W. Lambert, Esquire Stephen Marc Slepin, Esquire 1114 East Park Avenue Tallahassee, Florida 32301 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy J. Faircloth, Executive Director Board of Medical Directors 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this case is whether Jose Rosado, M.D., (Respondent), violated Section 458.331(1)(t), and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Florida law. At all times material to these proceedings, Respondent has been a licensed physician in the State of Florida, having been issued license number ME 0068035. Respondent is board-certified in internal medicine and cardiovascular diseases. On March 10, 1997, Patient W.B.C., a 72-year-old man, arrived at the Leesburg Regional Medical Center (LRMC) emergency room. He complained of a sudden onset of weakness in his left hand and arm with numbness and tingling. Respondent was Patient W.B.C.'s primary care physician. Respondent admitted Patient W.B.C. with a diagnosis of cerebrovascular accident, mitral regurgitation, sick sinus syndrome and a history of myocardial infarction. Respondent ordered that Patient W.B.C. undergo a head CT scan, carotid Doppler, 2-D echocardiogram, an electroencephalogram, and a neurological consultation. Based on the test results and the consultation, Respondent diagnosed Patient W.B.C. with right cerebrovascular accident, mitral regurgitation, sick sinus syndrome, and history of myocardial infarction. Respondent then discharged the patient with Ticlid, a medication to prevent further cerebrovascular accidents and aspirin. On March 16, 1997, Patient W.B.C. was admitted to LRMC complaining of weakness, dizziness and a fever. His vital signs revealed a temperature of 103.0 F, a pulse of 118, and a blood pressure of 139/75. The emergency room physician ordered a chest x-ray, EKG, and urine and blood cultures. The chest x-ray revealed no acute cardiopulmonary abnormality. Urine tests revealed features consistent with the possibility of urosepsis. Blood work showed a white blood count of 9.15, elevated but within the normal range. Also on March 16, Respondent ordered that antibiotics be given prophylactically until the blood cultures came back from the laboratory. The cultures came back positive for staphylococcus aureus (staph). Staph is a notoriously “bad bug” and Staphylococci aureus bacteremia has a high mortality rate. Staph aureus can originate from several possible sources including infections through the urinary tract system, IV sites, aspiration into the lungs, and pneumonia (although not very common). Staphylococci in the bloodstream is known as bacteremia. Bacteremia can lead to endocarditis which is an infection of the inner lining of the heart and the heart valves. Endocarditis is a life-threatening condition that can quickly damage the heart valves and lead to heart failure or even death. Patients with certain cardiac conditions such as mitral valve regurgitation have a higher risk of developing endocarditis. Patient W.B.C. had such a history. On March 17, 1997, Patient W.B.C. was started on intravenous antibiotics by Respondent. Patient W.B.C. continued to receive the intravenous antibiotics for four days from March 17, 1997, through March 20, 1997. Respondent then switched Patient W.B.C. to oral antibiotics and kept the patient in the hospital one more day prior to discharging him with instruction to continue on the oral antibiotics for another ten days. Patient W.B.C. was discharged on March 21, 1997. He was not referred to an infectious disease specialist nor had Respondent obtained a consultation with any specialist to determine the length of time that the patient's infection should be treated. Respondent felt that he was adequately qualified to treat this patient, and the treatment appeared to work. Respondent thought the bacteria growing in the patient's blood "likely" originated from a lung infection. An infectious disease specialist should have been consulted to give guidance as to how long to treat the infection. The standard of care for treating a staph aureus infection where there is a known source of infection requires 14 days of intravenous antibiotics. Where the source is not known, then four to six weeks of antibiotics is recommended. In this case, the infection, a resistant staph infection found in the patient's blood, could have originated from several sources. While such staph could have sprung from a source in the lung, this is by no means likely and the infection could have originated from another source. The standard of care required that Respondent contact an infectious disease specialist for an evaluation and/or that he treat Patient W.B.C.’s staphylococcus with a minimum of 10 to days of intravenous antibiotics. On or about April 11, 1997, Patient W.B.C., presented to the emergency room at LRMC complaining of congestion, shortness of breath, fever of 100.3° F, and a cough. The emergency room physician performed a physical exam which revealed vital signs of a temperature of 101.3° F, a pulse of 104, and a blood pressure of 90/54. A chest x-ray, blood work and a urine culture were ordered. Patient W.B.C. was then admitted on April 11, 1997, with a diagnosis of pneumonia, an old cerebrovascular accident and coronary artery disease. The ER physician started Patient W.B.C. on a plan of treatment which included intravenous antibiotics, Vancomycin, IV fluids, and blood cultures. A physical examination on the patient revealed a temperature of 101.3° F, a pulse of 104 and blood pressure of 91/53. The attending physician diagnosed him with probable sepsis with pneumonia. On April 12, 1997, the blood cultures came back positive for Staphylococcus aureus bacteremia. On April 15, 1997, Patient W.B.C. was afebrile (without fever) and his white blood cell count was 10.23, which is within the normal range of 4.0 to 11.0. The patient continued in this condition through April 18, 1997, despite suffering from sepsis. On April 18, 1997, Respondent approved Patient W.B.C. for transfer to another institution for consideration for urgent mitral valve replacement. On April 19, 1997, Patient W.B.C. arrested and was pronounced dead at 5:53 a.m. Petitioner’s expert, Carlos Sotolongo, M.D., is board- certified in internal medicine, cardiovascular disease and nuclear cardiology. As established by Dr. Sotolongo's testimony, Respondent practiced below the standard of care by failing to treat Patient W.B.C. with a sufficient number of days of intravenous antibiotics and by failing to consult an infectious disease specialist. According to Dr. Sotolongo, there is a difference in the way that an uncomplicated pneumonia is treated as opposed to a pneumonia complicated by bacteremia. The latter must be treated more aggressively. Based on the foregoing, Respondent violated Section 458.331(1)(t), by failing to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.
Recommendation Based on the foregoing, it is recommended that a Final Order be entered finding that Respondent violated Section 458.331(1)(t), and imposing a penalty which includes a formal reprimand, payment of an Administrative Fine in the amount of $5,000.00 within 180 days, and eight hours of Continuing Medical Education (CME) to be completed within the next 12 months dealing with the diagnosis and treatment of infections and/or risk management. DONE AND ENTERED this 1st day of October, 2003, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 2003. COPIES FURNISHED: William M. Furlow, Esquire Katz, Kutter, Alderman, Bryant & Yon, P.A. Post Office Box 1877 Tallahassee, Florida 32302-1877 Kim M. Kluck, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
Findings Of Fact The Petitioner, Shelly Gans, graduated from high school in June, 1973. She attended Broward Community College during terms 1 and 3 of the 1973-74 academic year, where she earned fifteen (15) credits. She does not have two years of academic study as required by Rule 10D-41.069(5). She then attended Sheridan Vocational Technical Center from February, 1974 to February, 1975. She was thereafter employed by Dr. Stephen Katzman from March, 1975 through August, 1979 as a technologist doing laboratory testing including phlebotomy. She was thereafter employed at Florida Medical Center as a technologist doing blood banking, hematology, chemistry and part time phlebotomy. Ms. Gans passed the October, 1983 proficiency examination for clinical laboratory technologists given by the U.S. Department of Health and Human Services, Public Health Service, Centers for Disease Control. After passing the U.S. Department of Health and Human Services examination, Ms. Gans was licensed as a clinical laboratory technician by the Department of Health and Rehabilitative Services Office of Licensure and Certification, Laboratory Personnel Licensure, through June 30, 1986. In October, 1984, Ms. Gans was examined by HRS for licensure as a clinical laboratory technologist in the specialties of clinical chemistry, hematology and immuno- hematology. She passed the immunohematology examination but failed the hematology and clinical chemistry examinations. She re-applied and took those examinations in April, 1985 when she passed the hematology examination but failed the chemistry examination a second time. Under Rule 10D- 41.071(9), Florida Administrative Code, Ms. Gans was required to take continuing education before she could re-apply to sit for the chemical chemistry examination a third time. Ms. Gans enrolled in Broward Community College in the second term of the 1985-1986 school year and took three hours in general chemistry. That course ended after January 1, 1986. She re-applied for examination as a technologist in the specialty of clinical chemistry on July 14, 1986. Her application for that examination was denied on August 14, 1986 because she did not have sixty (60) semesters of college credits which the Department believed was required under Section 10D-41.C69(5), Florida Administrative Code.
Recommendation It is RECOMMENDED that Shelly Gans be permitted to sit for the technologist examination in clinical chemistry when it is next given because she meets the requirements of Rule 10D- 41.069(6), as currently written and has taken retraining in clinical chemistry after she twice failed the examination, as is required by Rule 10D-41.071(9), Florid Administrative Code. DONE and ORDERED this 23rd day of July, 1987, in Tallahassee, Florida. WILIAM R. DORSEY, JR. 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 23rd day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3670 The following constitute my rulings on proposed findings of fact pursuant to Section 120.59(2), Florida Statutes, (1985). Rulings on Proposed Findings by Petitioner The proposals by the Petitioner are generally in the form of argument rather than proposed findings of fact. Relevant proposed factual findings have been made in the Recommended Order. Rulings on Proposed Findings by Respondent Covered in Finding of Fact 4. Covered in Finding of Fact 4. Covered in Finding of Fact 1. Rejected as an improper reading of Rule 10D-41.069(6). Rejected because the issue is not when notice of the rule was given, but what the rule says. Rejected as based on hearsay. Moreover, even if it was the intention of Centers of Disease Control that the Department of Health and Human Services examination not be a permanent means of credentialing in lieu of education and experience requirements, the Department of Health and Rehabilitative Services has not implemented that intent in the rule which it enacted. Rejected as unnecessary. That Ms. Gans' application was received after January 1, 1986 is covered in Finding of Fact 4. Rejected as unnecessary. COPIES FURNISHED: Michael O. Mathis Staff Attorney HRS Office of Licensure & Certification 2727 Mahan Drive Tallahassee, Florida 32308 Shelly Gans 4163 Southwest 67th Avenue Apartment 104C Davie, Florida 33314 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue This is an examination challenge proceeding in which the Petitioner asserts entitlement to a passing grade on a licensure examination.
Findings Of Fact The Petitioner, Allen Sledge, took the hematology technologist licensure examination in March 1999. In due course he was furnished a grade report which advised him that he had failed the exam. The grade report advised him that the minimum passing score was 350, and that he had achieved a score of 338. During the examination review requested by the Petitioner, he was not provided with the same examination booklet he had used during the examination. However, the contents of the examination booklet provided to him during the examination review were identical to the contents of the examination booklet provided to him when he took the examination. During the examination review process, the Petitioner was not allowed to make copies or notes regarding the content of any of the examination materials. Therefore, he had to write his challenges to the examination based on his memory of what he saw during the examination review process, without benefit of the exact language of the questions. The Petitioner's examination review was conducted in accordance with the provisions of statutes and rules that govern post-examination access to examination materials. There is only one version of the hematology technologist examination that was administered in March 1999. All candidates who took the examination on that date were provided with examination booklets that contained identical content. All candidates who took the hematology technologist examination in March 1999, were instructed to select the "best" answer for each question. With regard to the three challenged questions (Questions 35, 37, and 47), the Petitioner did not select the "best" answer to any of the three questions. Rather, the answers chosen by the Petitioner for each of the three challenged questions were incorrect choices. The subject matter of all of the challenged questions is appropriate for a hematology technologist licensure examination. All of the questions test for knowledge that should be known by a hematology technologist.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That a final order be issued dismissing the Petitioner's challenge to the examination, and concluding that the Petitioner failed the subject examination. DONE AND ENTERED this 18th day of January, 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 18th day of January, 2000.
