Findings Of Fact At all times material hereto, Respondent has been licensed as an osteopathic physician in the State of Florida, having been issued license number OS-0001053 in 1954. According to Respondent's office records for a patient named Barry Belikoff, Respondent saw Belikoff in his office on twenty-five (25) occasions between September 5, 1980, and July 24, 1981, and during this time wrote twenty-four (24) prescriptions for a total of 344 Quaaludes (Methaqualone) with a dosage of 300 mg. each. According to his patient records, Respondent also saw Belikoff on thirteen (13) occasions between October 31, 1981 and June 18, 1982 and wrote four (4) prescriptions for controlled substances, including Talwin, Restoril, and Percodan. Respondent was treating Belikoff for back pains and insomnia. According to expert testimony, the records kept by Respondent of this patient's office visits were inadequate and do not provide the required documentation which would support and explain the controlled substances prescribed in this case. In addition, a proper course of patient care would not include the on-going prescription of Quaaludes over almost a one year period at a rate of over one a day without a record of additional tests, x-rays, or neurological exams during this period. Belikoff's patient records do not show any such additional tests, x- rays or exams. Without such documentation in the patient's records, the prescriptions for controlled substances written by Respondent for Belikoff were without medical justification, excessive and inappropriate, according to expert testimony. Respondent was treating a patient named Lyndon Ellis during 1981 and 1982. Ellis was hospitalized on four occasions while under Respondent's care, and according to expert testimony the level of care and medical records for this patient, while hospitalized, were excellent. As a result of office visits by Ellis, Respondent wrote thirty-eight (38) prescriptions for controlled substances between April 20, 1981 and September 29, 1982 which included Percocet 5, Demerol, and Fiorinal. Ellis was being treated by Respondent for chronic headaches and pain from accident injuries, and also for a problem with his toe. However, according to expert testimony, the records kept by Respondent on Ellis' office visits were inadequate and do not provide documentation which would support and explain the controlled substances prescribed in this case. The absence of a thorough patient medical history, exam, evaluation, x- rays and lab tests in this patient's office records is explained by Respondent by the fact that this information was available in hospital records for this patient. Nevertheless, Respondent's office records for Ellis are totally inadequate. These office records do reflect that Respondent was aware of Ellis' overuse of controlled substances and the need to detoxify this patient on October 29, 1982. Yet he prescribed Percocet, a controlled substance, on five additional occasions after October 29, 1982. Without adequate documentation in the patient's records, the prescriptions for controlled substances written by Respondent for Ellis were without medical justification, excessive and inappropriate, according to expert testimony. Between July 14, 1980 and April 23, 1982, Respondent treated a patient named Alan Fogler. During this time Respondent wrote twelve (12) prescriptions for a total of 464 Percodan, a controlled substance. Respondent was treating Fogler for headaches, whiplash and a concussion reported by the patient, as well as allergies, but patient records reveal no x- rays, brain scans, lab work or neurological exams. According to expert testimony, patient records in this case are inadequate and do not justify the treatment rendered which consisted primarily of prescriptions for Percodan. Without adequate patient medical records, the prescriptions for controlled substances were without- medical justification, excessive and inappropriate, accordingly to expert testimony. While treating patients Belikoff, Ellis and Fogler, Respondent repeatedly reissued prescriptions for controlled substances without a substantiation of medical reasons in the patients' office medical records. According to expert testimony concerning the standards expected of osteopathic physicians in keeping office medical records on patients, Respondent did not perform with reasonable skill, nor meet the standards expected of physicians in this aspect of their practice. Vicki Cutcliffe, a deputy sheriff with the Broward County Sheriff's Office, saw Respondent in his office on March 30, April 11 and April 25, 1984 using the alias "Vicki Tarra". After taking a brief medical history which revealed that "Tarra" used alcohol daily, Respondent began treating her for situational anxiety by prescribing controlled substances, including Librium and Tranxene. On April 25 "Tarra" told Respondent she wanted some extra pills for her friend named Jo Ann and asked him to write her friend a prescription. Respondent said he could not do that, but did give "Tarra" a prescription for Tranxene and two refills, after initially giving her a prescription which allowed for only one refill. He told her that she could give some of the pills to her friend and then she could refill the prescription twice. Respondent knew that "Tarra" wanted the extra pills for a friend and that she would give them to her friend who was not a patient of Respondent. According to expert testimony, the treatment given to "Tarra" by Respondent, which consisted simply of prescriptions for controlled substances without adequate documentation of the reasons for this course of treatment in the patient's medical records, was totally inappropriate. Increasing a prescription when a patient says they want some extra pills for a friend is never justified and constitutes malpractice, according to expert testimony.
Recommendation Based upon the foregoing it is recommended that a Final Order be issued suspending Respondent's license for a period of two ( 2) years. DONE and ENTERED this 30th day of September, 1985, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 3 2301 (904) 488- 9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1985. COPIES FURNISHED: Stephanie A. Daniel, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 John W. Gaul, D.O. 11360 Tara Drive Plantation, FL 33325 Dorothy Faircloth Executive Director Board of Osteopathic Medical Examiners 130 North Monroe Street Tallahassee, FL 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 ================================================================ =
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against a licensed medical doctor. By means of a two-count Administrative Complaint, the Respondent is charged with violations of Sections 458.331(1)(m) and 458.331(1)(t), Florida Statutes, by allegedly failing to keep written medical records justifying the course of treatment of a patient, and by failing to practice medicine with the required level of care, skill, and treatment. The Respondent denies the violations charged in the Administrative Complaint, and also asserts that the Administrative Complaint should be dismissed by reason of the Petitioner's failure to timely investigate and prosecute the subject charges.
Findings Of Fact Findings stipulated by the parties4 The Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida. The patient R. C. presented with a history of diabetes and hypertension. The Respondent did not attempt or make any contact with the primary care physician of patient R. C. Brevital was administered intravenously to the patient R. C. without the use of an IV pump. Resuscitative drugs and equipment should always be immediately available. There is no documentation of respiratory monitoring during the administration of anesthetics and the surgical procedure performed on patient R. C. It is well below the standard of care to both administer a general anesthesia and perform the surgical procedure. Findings based on evidence At all times material, the Respondent has specialized in urology. The Respondent is not board certified in urology. At all times material to this case, the Respondent was associated with a clinic named Instituto Latino Americano de Impotencia y Diagnostico (ILAID). One or two days each week, the Respondent would see patients at ILAID that were potential candidates for penile implant surgery. At all times material to this case there were at least two other licensed physicians associated with ILAID who often were the first physicians to see patients who came to ILAID with complaints of impotency. The subject patient (Patient R. C.) went to ILAID for the first time on May 24, 1993. On that day the patient signed a form titled "Patient Information," which contains little more than patient identification information, and a form titled "Patient's Declaration and Agreement."5 The patient probably saw a physician at ILAID on May 24, 1993, because a blood sample was taken from the patient that day and the results of the blood tests were reported back to ILAID on May 25, 1993. However, there is no documentation that the patient was seen by a physician at ILAID on May 24, 1993. Specifically, there is no medical chart documenting that on that day a physician took a history from the patient, examined the patient, evaluated the patient, ordered any tests of the patient, or otherwise treated or cared for the patient. At all times material to this case, the routine practice and procedure of ILAID regarding patients who went to ILAID with complaints of impotency was to have the patients seen by a physician associated with ILAID. It was also the routine practice and procedure at ILAID for the physician who first saw the patient to prepare a-medical record documenting the patient's visit. Such a medical record would routinely document a patient history, an examination of the patient, the physician's evaluation of the patient, and any treatments given or tests ordered by the physician. The impotency patients at ILAID were also routinely put through an evaluation procedure to determine the extent of and the nature of their impotency before implant surgery was recommended or performed. The results of the evaluation procedure were also routinely documented in the patient's medical chart. The Respondent first saw the subject patient on July 13, 1993, at the ILAID facility. On that date there were no patient records regarding the subject patient prepared by any other physician associated with ILAID for the Respondent to review. In the absence of any medical documentation, the Respondent apparently assumed that the patient had been through the normal routine at ILAID and proceeded to go forward on that assumption. On July 13, 1993, the Respondent took a brief, limited history from the patient and conducted a limited physical examination of the patient. The physical examination was limited to the patient's abdomen and urogenital area. Based on that limited history and examination, the Respondent concluded that penile implant surgery was an appropriate course of treatment, subject to the patient receiving medical clearance for the surgery. The Respondent did not perform any objective tests for impotence on the patient. The Respondent did not obtain a detailed medical history from the patient. The Respondent did not obtain a detailed history regarding the nature, extent, or duration of the patient's impotence. The Respondent did not conduct a complete physical examination of the patient. Prior to performing penile implant surgery, a physician should perform objective tests to determine if the surgery is indicated. Two objective tests that should always be performed are blood tests to determine the patient's testosterone level and prolactin level.6 Depending on the details elicited during the patient history, other objective tests may also be indicated. The Respondent failed to have tests done to determine the testosterone level and the prolactin level of the patient. The failure to perform these two objective tests is a departure from acceptable standards of medical care recognized by a reasonably prudent similar physician. Prior to performing penile implant surgery, a patient's condition must be assessed by a physician to determine whether surgery is indicated. The surgeon does not have to personally perform all aspects of the assessment of the patient's condition, but the surgeon must at least verify that an adequate assessment has been performed by another physician, and that the assessment has been documented in the patient's medical records. Adequate assessment of a patient's condition requires, at a minimum, a detailed medical history, a complete physical examination, and the performance of any objective tests indicated by the history and physical examination. The performance of surgery without either performing an adequate assessment of the patient's condition or verifying that such an assessment has been documented by another physician is a departure from acceptable standards of care recognized by a reasonably prudent similar physician. The Respondent did not obtain a detailed medical history from the patient, did not perform a complete physical examination of the patient, and failed to order at least two objective tests that were indicated by the patient's complaints. The Respondent also failed to verify that documentation existed which showed that any other physician had obtained a detailed medical history from the patient, had performed a complete physical examination of the patient, and had ordered the objective tests indicated by the patient's complaints. If the Respondent had attempted to verify the existence of such documentation, he would have discovered that the documentation did not exist. The Respondent's performance of surgery on the patient without performing an adequate assessment of the patient's condition, or without verifying that such an assessment had been documented by another physician, was a departure from acceptable standards of medical practice. The Respondent made arrangements for additional blood tests and for an EKG to be administered to the patient. The Respondent also believed that he had made arrangements for one of the other physicians at ILAID to medically clear the patient for surgery. Anticipating no problems regarding the medical clearance, the Respondent also contacted the director of ILAID, Rogelio Medel, and asked him to arrange a location for the implant surgery. In view of the patient's financial circumstances and his lack of medical insurance, it was decided that the surgery would be done in an operating room at a physician's clinic, which would be somewhat less expensive than performing the surgery in a hospital operating room. Rogelio Medel contacted Dr. Francisco A. Prado and arranged for the use of one of the operating rooms at Dr. Prado's clinic. Rogelio Medel had made similar arrangements with Dr. Prado twice before. The arrangement with Dr. Prado was that Dr. Prado would provide not only the use of the operating room, but would also provide all necessary supplies (including the anesthesia medications), as well as the services of a nurse anesthetist, Eduardo Perez, who worked for Dr. Prado on a regular basis. The surgery was scheduled for early in the afternoon on July 16, 1993. Unbeknownst to Rogelio Medel and to the Respondent, Eduardo Perez was not a licensed nurse anesthetist. The Respondent did not inquire of Eduardo Perez regarding the latter's qualifications or licensure status. Rather, relying on the representations of Dr. Prado, the Respondent assumed that Eduardo Perez possessed the necessary qualifications and licensure to function as a nurse anesthetist. While it is clear that Eduardo Perez was not licensed as a nurse anesthetist, there is no clear and convincing evidence in the record as to whether Eduardo Perez was or was not trained in the use of anesthetics, was or was not trained in the use of respiratory and cardiac monitoring equipment, or was or was not trained in the use of resuscitative drugs and equipment.7 The Respondent assumed that Eduardo Perez was trained in these matters, based on the assumption that Eduardo was a licensed nurse anesthetist. In view of the representations of Dr. Prado, it was reasonable for the Respondent to make that assumption.8 The Respondent was not trained in the techniques and procedures of advanced cardiac life support. The Respondent was not trained in the use of a defibrillator. The Respondent was not trained in the use of anesthetics. Prior to performing surgery on the subject patient, the Respondent had received a copy of the laboratory results dated July 16, 1993. He had also received a copy of the EKG report prepared by Dr. Freddie Rodriguez. Prior to performing the surgery, the Respondent had not received any written medical clearance for the patient to undergo the planned implant surgery. The Respondent never received any written medical clearance for the patient to undergo surgery, because the patient was never medically cleared. The Respondent did not receive any telephonic verification that the subject patient had been medically cleared for surgery, because no other physician had cleared the patient for surgery.9 Prior to performing surgery, it is the responsibility of the surgeon to verify that the patient has been medically cleared for the proposed surgery. Under similar conditions and circumstances, a reasonably prudent similar physician would not perform surgery without verification that the patient had been medically cleared for the proposed surgery. It is a departure from minimum standards of medical practice for a surgeon to perform surgery without such verification. Early in the afternoon on July 16, 1993, the Respondent performed penile implant surgery on the subject patient. The surgery was conducted in one of the operating rooms at Dr. Prado's clinic, as previously arranged with Dr. Prado. During the surgery the patient was anesthetized with the anesthetic agents Versed and Brevital. These anesthetic agents were administered by Eduardo Perez, who was functioning as a nurse anesthetist. Eduardo Perez was present during the entire surgical procedure, during which time he monitored the administration of the anesthetic agents, monitored the patient's vital signs, and otherwise performed the functions that would be performed by a nurse anesthetist. At all times material, the Respondent believed, based on the representations of Dr. Prado, that Eduardo Perez was a licensed and qualified nurse anesthetist who regularly worked in that capacity for Dr. Prado. When the surgical procedure had been completed, the Respondent left the patient in the care of Eduardo Perez while the Respondent left the operating room to change clothes. When the Respondent left the operating room the patient appeared to be normal. When the Respondent returned to the operating room a few minutes later, he noticed that the patient had become pale and sweaty. The Respondent also noticed that the patient had very little pulse or blood pressure. The Respondent and Eduardo Perez initiated cardiopulmonary resuscitation and also called fire rescue for assistance. The Respondent and Eduardo Perez continued their cardiopulmonary resuscitation efforts until the fire rescue personnel arrived a few minutes later. The fire rescue personnel initiated advanced cardiac life support measures and subsequently transported the patient to a hospital emergency room, where further efforts were made to resuscitate the patient. Shortly thereafter the patient was pronounced dead in the emergency room. Following an autopsy and investigation into the cause of death, the Dade County Medical Examiner was of the opinion that it could not be stated with any degree of medical certainty that the death of the subject patient was caused by the surgery. In order to have medical records sufficient to justify penile implant surgery, a physician must have written medical records that document at least the following matters: (a) a detailed patient history; (b) a complete physical examination of the patient; (c) a consideration of alternative therapy options; and (d) a pre-operative medical clearance. With regard to the subject patient, the Respondent does not have, and never did have, written medical records documenting any of the four matters itemized immediately above. By failing to keep written medical records documenting such matters with regard to the subject patient, the Respondent failed to keep records justifying the course of treatment of the patient.10
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a Final Order be issued in this case concluding that the Respondent has violated Sections 458.331(1)(t) and 458.331(1)(m), Florida Statutes, imposing a penalty consisting of the imposition of administrative fines totaling $6,000. 00, and the suspension of the Respondent's license to practice medicine for a period of 90 days. DONE AND ENTERED this 23rd Day of September, 1998, in Tallahassee, Leon County, Florid __________________________________ 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 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1998.
The Issue The issues in this case are whether Respondent violated sections 460.413(1)(m), 460.413(1)(ff), 460.413(1)(n), and 460.413(1)(r), Florida Statutes (2006),1/ and Florida Administrative Code Rule 64B2-17.0065, and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the practice of chiropractic medicine in Florida, pursuant to section 20.43 and chapters 456 and 460, Florida Statutes. Dr. Christian was at all times material to the violations alleged in the Administrative Complaint a licensed chiropractic physician in the State of Florida, having been issued license number 5756 on or about February 4, 1998. At all times material to the violations alleged in the Administrative Complaint, Dr. Christian, Dr. Davidson, and Dr. Kalin were employees of Comprehensive Physician Services, Incorporated (CPS). Dr. Christian was the sole stockholder of CPS. On April 17, 2006, M.M. was involved in an automobile accident when the car, in which she was a front-seat passenger, hit a tree on the passenger side. The window next to M.M. shattered and M.M. received lacerations to the right temple area of her head. M.M. was transferred by ambulance to the emergency room at Northside Hospital. While in the emergency room, a CT scan was performed on M.M.'s head. The CT evaluation was normal. The lacerations were sutured, and M.M. was discharged from the emergency room. On or about April 26, 2006, M.M. presented to CPS for treatment of injuries due to the automobile accident on April 17, 2006. M.M., who was a minor at the time, was accompanied by her mother to CPS. M.M.'s complaints were headaches; neck pain and stiffness; mid-back pain and stiffness; lower back pain and stiffness; difficulty sleeping due to pain; and difficulty with concentration. She indicated that, on a scale of one to ten, with ten being the most, the stiffness in her neck and middle back was a five. On examination, Dr. Christian found that M.M. had cervical and thoracic tenderness. In his initial report, Dr. Christian noted the hyperabduction tests were positive, and there was "left side reduced pulse/paresthesia due thoracic outlet compression consistent with compression from seat belt trauma." However, the test results contained in the medical records show that there are negative findings on the hyperabduction tests. When questioned about the discrepancy, Dr. Christian testified that the positive findings were a result of the grip/pinch test that he performed. He indicated that he made a mistake in his initial report and that the report should have stated right side reduced pulse. He could not explain how the grip/pinch test would lead him to conclude that there was a reduced pulse because M.M.'s pulse would not be measured during a grip/pinch test nor could he explain how he could learn from a grip/pinch test that there was paresthesia. Later, he testified that the difference in the results was not due to the grip/pinch test, but was a result of a second hyperabduction test that he performed prior to the grip/pinch test. Dr. Christian's testimony is not credited. Dr. Christian's practice is to have an assistant come into the examination room during the testing. As he performs the test, he tells the assistant the results of the test, and the assistant will record the test results. The medical records do not show a second hyperabduction test being recorded by an assistant. Therefore, the examination results are contrary to the results stated in the initial report for April 26, 2006. In his examination records of April 26, 2006, Dr. Christian noted that there was "R [circled] Visual Acuity Diff." M.M.'s mother was present during the examination and observed Dr. Christian testing M.M.'s vision on April 26, 2006. Dr. Christian testified that he first tested M.M.'s vision on May 24, 2011. His testimony is not credited. Dr. Christian's practice is to put findings of the previous chiropractic examination on the report of the examination that he is currently conducting so that a comparison could be made. The examination report of April 26, 2006, and May 24, 2006, are the same with the exception of notations on the May 24, 2006, report of 5/23 near the present complaints section and the section where areas of muscle spasms on the spine are noted. In his follow-up report dated May 24, 2006, Dr. Christian wrote: "Certainly today I see evidence of her continuing to have some alterations of visual acuity . . .". Dr. Christian testified that he had incorrectly included the term "continuing" in this statement. Dr. Christian's testimony is not credited. His statement that the alterations of visual acuity were continuing comports with M.M.'s mother's testimony that the first visual testing was done on April 26, 2006, and the examination report of April 26, 2006. Based on the examination reports for April 26, 2006, and May 24, 2006, there is no indication of what tests Dr. Christian used to test M.M.'s vision nor is there any indication of the exact nature of the problem with the right eye. Dr. Christian's initial report does not mention the visual acuity difference. His follow-up report of May 24, 2006, does not indicate the difference that M.M. is experiencing with her right eye. In his examination records of June 14, 2006, and July 25, 2006, Dr. Christian notes: " R [circled] side vision distance diff." In his final report of July 25, 2006, Dr. Christian noted as a current symptom, "[r]ight sided visual alteration with peripheral." He listed as a diagnostic impression: "Concussion with residual affecting peripheral visual field on the right, persistent." However, contrary to his final report, Dr. Christian testified at final hearing that M.M.'s problem with her peripheral vision had improved. On April 26, 2006, Dr. Christian's treatment plan included the following treatment for M.M. three times a week for four weeks: intersegmental traction, hot pack, and neuromuscular release for the full spine; inferential, alternating cervical to dorsal and dorsal to lumbar; full spine massage; and full spine aqua treatment. The therapist assistant was to determine which treatment modalities and areas to treat at each treatment session. Dr. Christian signed each of the daily treatment notes. On April 26, 2006, Dr. Christian referred M.M. to Dr. Kalin. According to Dr. Christian, Dr. Kalin had experience in emergency rooms treating patients who had sustained trauma. Dr. Christian wanted Dr. Kalin to look at the two lacerations that M.M. had sustained. However, there were no outward signs of infection of the lacerations, and the lacerations had healed. Dr. Christian also wanted to determine if there was any post concussion symptoms. Dr. Kalin evaluated M.M. on May 1, 2006. His initial diagnosis was that she had a "cervical musculoskeletal ligamentous strain" and a "[s]ubacute lumbosacral musculoskeletal ligamentous strain." His examination did not reveal any abnormality with M.M.'s vision. He did find that the lacerations may leave permanent scarring. In his interim report dated May 24, 2006, Dr. Christian stated: "Dr. Kalin was not able to mention the fact that she [M.M.] struck her head or had laceration and dizziness with nausea and vomiting following the impact." This statement is contrary to what Dr. Kalin stated in his report. Dr. Christian further noted in his report that he would follow- up with Dr. Kalin to see if Dr. Kalin had an addendum as to whether there is additional follow-up for post-concussion symptomology. In his report of May 1, 2006, Dr. Kalin did not make any findings of a concussion or post-concussion syndrome. On May 25, 2006, a staff member of CPS sent the following request to Dr. Kalin: Dr. Kalin, Dr. Christian asked if you could please make an addendum [sic] to your report on [M.M.] for her concussion-post concussion syndrome. Thanks! Kimberly Dr. Kalin replied: "pt had no symptoms of headache or memory/concentration when I saw her." No mention was made in Dr. Christian's interim report dated May 25, 2006, that Dr. Kalin did not find any evidence of post-concussion syndrome. On May 1, 2006, Dr. Christian wrote a prescription for hydrotherapy for M.M. for three times a week for four weeks. M.M. received treatment at CPS on May 1, 2006. M.M. indicated to the therapist that on a scale of one to ten that she rated her low back pain and low back stiffness as a four and her neck stiffness as a five. The therapist noted that there was cervical and lumbar tenderness. M.M.'s treatment on May 1, 2006, consisted of hot therapy and hydrotherapy to the cervical, thoracic, lumbar, and sacral areas, and intersegmental traction to the cervical, thoracic, and lumbar areas. X-rays of M.M.'s cervical and lumbar spine were ordered. The radiologist who read the X-rays had the impression that M.M. had a cervical muscle spasm and a lumbar muscle spasm. On May 4, 2006, M.M. received treatment at CPS. She rated her neck stiffness and low back stiffness as a three. There was no notation of any tenderness by the therapist. M.M. received the following treatment in the thoracic, lumbar, and sacral areas: hot therapy, intersegmental traction, and hydrotherapy. On May 4, 2006, ultrasound studies were performed on M.M. by Charles W. Hirt, M.D. (Dr. Hirt). Dr. Hirt's impression was that there were findings that showed evidence of a left- sided thoracic outlet syndrome. On May 9, 2006, M.M. returned to CPS for treatment. She rated her neck stiffness and lower back stiffness as a two. The therapist noted that there was tenderness in the cervical and lumbar areas. M.M. was given hot therapy, intersegmental traction, and trigger point therapy in her cervical, thoracic, and lumbar areas. She received myofascial release, massage, and hydrotherapy in her cervical, thoracic, lumbar, and sacral areas. On May 16, 2006, M.M. was treated at CPS. She rated her neck stiffness as a one and her low back stiffness as a two. The therapist noted tenderness in the lumbar area. The treatment to M.M.'s cervical, thoracic, lumbar, and sacral areas included intersegmental traction, trigger point therapy, myofascial release, and massage. She was given interferential treatment to her lumbar and sacral areas and hot therapy to her cervical, thoracic, and lumbar areas. On May 18, 2006, M.M. presented for treatment at CPS. She rated her neck and low back stiffness as a one. The therapist did not note any tenderness. M.M. received the following treatment in her cervical, thoracic, lumbar, and sacral areas: hot therapy, intersegmental traction, trigger point therapy, myofascial release, and massage. On May 23, 2006, M.M. went to CPS for treatment. She rated her lower back stiffness as zero. The therapist noted tenderness in the cervical, thoracic, and lumbar areas. M.M. was given a massage and myofascial release in her cervical, thoracic, lumbar, and sacral areas. She received inferential treatment and trigger point therapy in her lumbar and sacral areas and hot therapy and intersegmental traction in her thoracic, lumbar, and sacral areas. On May 24, 2006, Dr. Christian did a follow-up examination of M.M. M.M. rated the neck and lower back stiffness as zero. Dr. Christian noted in his follow-up report that all the symptoms that he had noted in his initial report of April 26, 2006, had improved. His follow-up report stated: "Cerebellar function tests, as far as assessed are abnormal with a positive Rhomberg test for possible concussion." His follow- up report also stated: "Certainly today, I see evidence of her continuing to have some alterations of visual acuity and a positive Rhomberg, which would be consistent with post concussion syndrome." On May 25, 2006, M.M. returned to CPS for further treatment. She rated her neck and low back stiffness as zero. The therapist noted tenderness in M.M.'s cervical and lumbar areas. M.M. was treated with myofascial release and massage in her cervical, thoracic, lumbar, and sacral areas. She received trigger point therapy in her lumbar and sacral areas and inferential treatment in her thoracic area. She also received intersegmental traction in her thoracic, lumbar, and sacral areas. M.M. received treatment at CPS on May 30, 2006. Again, she rated her neck and low back stiffness as zero. The therapist did not note any tenderness. Hydrotherapy, hot therapy, and intersegmental traction were provided to M.M. in her cervical, thoracic, lumbar, and sacral areas. She received inferential treatment in her lumbar and sacral areas. On June 13, 2006, M.M. again returned to CPS for treatment. She rated her neck and low back stiffness as zero. The therapist noted tenderness in M.M.'s cervical, thoracic, and lumbar areas. M.M. received intersegmental traction, myofascial release, and massage in her cervical, thoracic, lumbar, and sacral areas. M.M. was given hot therapy in her thoracic, lumbar, and sacral areas. She received trigger point therapy in her cervical and thoracic areas. On June 14, 2006, M.M. presented at CPS for a follow- up visit with Dr. Christian. She rated her neck and low back stiffness as zero. He reduced her treatment to one per week for the next four to five weeks. In his examination record of June 14, 2006, Dr. Christian noted: " R [circled] side vision distance diff." On June 20, 2006, M.M. returned to CPS for treatment. Again, she rated her neck and low back stiffness as zero. The therapist did not note any tenderness. M.M. was given hot therapy and intersegmental traction for her thoracic, lumbar, and sacral areas. She was given hydrotherapy for her cervical, thoracic, lumbar, and sacral areas. On June 22, 2006, ultrasound studies were done on M.M. by Dr. Hirt. His impression was that she likely had thoracic outlet syndrome on the left side. On May 24, 2006, Dr. Christian referred M.M. to Dr. Davidson for a second opinion for post concussion. Dr. Davidson examined M.M. on June 27, 2006. In his report dated June 27, 2006, Dr. Davidson concluded that she had had a mild concussion, a cervical strain, and a lumbosacral strain. He recommended that her soft tissue therapy be discontinued. Dr. Davidson did not find any abnormalities in M.M.'s vision. On July 25, 2006, M.M. was examined by Dr. Christian. M.M. rated her neck and low back stiffness as zero. Dr. Christian noted the following in his final report dated July 25, 2006. If the patient's symptoms of altered visual field persist and evaluation by an ophthalmologist or a neuro-ophthalmologist may be appropriate. If she begins to have any difficulty with sleep, mood swings, feelings of dizziness or persistent headaches a neuro-psychiatric evaluation for continued post concussion deficits may be appropriate. Dr. Christian discharged M.M. on July 25, 2006, and M.M. was to return for treatment on an as needed basis. Dr. Christian's initial report dated April 26, 2006; interim report dated May 24, 2006; follow-up report dated June 14, 2006; and final report dated July 25, 2006, were dictated by Dr. Christian. The reports were being mailed to someone or some entity based on the note at the end of each report, which stated: "DICTATED BUT NOT PROOFREAD TO AVOID DELAY IN MAILING." At the closing of each report, Dr. Christian stated: "If I can be of further assistance in this regard, please do not hesitate to contact me." It is not clear to whom the reports were directed, but it is clear that the reports were meant to convey the examination, evaluation, and treatment of M.M. to the reader of the report. These reports did not accurately report the examination results of M.M. in at least two instances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Christian violated sections 460.413(1)(m) and 460.413(1)(ff) and rule 64B2-17.0065; finding that Dr. Christian did not violate sections 460.413(1)(n) and 460.413(1)(r); imposing an administrative fine of $2,500; placing Dr. Christian on probation for one year; and requiring Dr. Christian to attend a continuing education course on record-keeping. DONE AND ENTERED this 15th day of November, 2011, in Tallahassee, Leon County, Florida. S SUSAN BELYEU KIRKLAND 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 15th day of November, 2011.
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Dr. Julius A. Okuboye, was a medical doctor licensed by and in the State of Florida. In the first of six cases upon which Petitioner bases its case, the patient was receiving medical treatment for a fracture of the right femur, (thigh bone), at Gateway Community Hospital in St. Petersburg, Florida during the period November 21, 1982 and January 13, 1983. Petitioner contends Respondent failed to properly perform the surgical procedure; failed to properly consider alternative courses of treatment; and failed to keep adequate medical records justifying the course of treatment taken. Respondent reduced the bone fracture here by using a metal plate running lengthwise along the bone in an attempt to brace the fracture by securing it to the bone with, initially, screws. The plate used by the Respondent was too short for the procedure in that it did not extend beyond the upper limits of the fracture by that distance considered by some to be appropriate. Petitioner's first expert felt the use of the plate which was too short and the screws used to affix it, which were too short, was improper practice. In his opinion, the procedure followed by the Respondent herein required the patient to undergo three separate operations rather than one, which unnecessarily exposed this elderly patient to infection and the risk of anesthesia on three separate occasions. Petitioner's other expert believes that because the Respondent used a plate which was too short for the fracture involved, it was necessary for him to go back in and fix the plate with Parham bands considered by many in the field to be an old-fashioned practice. These bands, when used, tend to devitalize the tissue. He believes that once having used them, however, Respondent should have used more screws to affix the plate and the bands. In addition, the plate did not fix the smaller bone fragments at the bottom of the fracture. Both experts state Respondent should have considered reducing the fracture by the use of traction and bed rest as an alternative to surgery. On the other hand, Respondent's experts disagreed with Petitioner's experts. One, Dr. Weiss, indicated that Respondent had two choices: (1) a prolonged traction and immobilization which, itself, poses a great risk for an elderly patient, or (2) the surgical fixation which was chosen. Here, the reduction was good but the plate was too short. Dr. Weiss contends, as was urged by Respondent, that this was beyond his control and while it would have been better to use a longer plate, the Respondent used the correct procedure and the fact that a second and third operation was necessary, was beyond his control. His choice to do them was appropriate. The other expert, Dr. Bodden, pointed out that even though the smaller plate was used, there is no assurance a larger plate would have precluded the second and third operations. He believes that in light of all of the medical problems presented in this case and since the ideal plate was not available, Respondent's choice was prudent. The length of the plate was improper but in the opinion of Dr. Bodden, the patient's bone structure contributed to the breakage after the plate was installed. Further, the use of Parham bands was not inappropriate. They have been used for many years and are still widely accepted and used. In fact, he uses them himself. Prior to the surgery, Respondent contacted the operating room charge nurse to determine if the proper plates were available, and was assured by her that a full set of plates was available for the surgery. It was only after entering the operating arena, opening the incision into the patient's leg, and thereafter opening the sterilized and sealed package containing the plates that it was determined the proper plate was not present. Absent a showing to the contrary, it is found it would have been improper to open the plate package in advance of surgery to check since such a procedure would have destroyed the sterile nature of the package. In light of the above, Respondent's actions were appropriate. As to the issue of the adequacy of Respondent's medical records on other patients, an analysis of the records showed that no discharge summary was prepared by the Respondent nor were progress notes kept by him on December 22, 23, 25, and thereafter for several weeks on an irregular basis. It may be that Respondent was not the primary physician and only the consultant, but the records fail to show who was the responsible physician and who was ultimately responsible for the patient. A consultant should always reflect in the patient records who he is and in what capacity he has seen the patient as well as his area of expertise and the actions he has taken. Here, the Respondent's failure to do so, notwithstanding some expert evidence to the contrary, renders the records kept by him inadequate. In the case of the patient who was treated by the Respondent as a consultant on a fracture of the left hip at Gateway Community Hospital between October 27, and November 10, 1983, Petitioner's experts have no quarrel with the orthopedic treatment rendered the patient by Respondent. However, Respondent failed to make proper entries in the patient's medical records and the notes therein were made by an internist. Respondent saw the patient on only four of the nine days the patient was hospitalized and in the opinion of the expert, proper practice requires a doctor, or his substitute in the absence of the doctor, to see the patient each day. It may be that this practice, which is generally accepted as appropriate throughout the medical community, is somewhat less significant in the field of orthopedic surgery. Respondent's expert indicated he did not feel constrained to see his patients each day subsequent to surgery so long as he was kept aware of the patients' conditions. While he makes progress notes, he does not dictate discharge summaries or any of the other records since these are prepared by residents based on the notes he has put in the file. The medical records for this patient show no progress notes by the Respondent on November 1, 3, 4, and 5, 1983, during which time the patient was in the hospital under the Respondent's care. In one expert's opinion, the missing of three consecutive day's progress notes renders the records below standard. Respondent indicates he saw the patient frequently right after the surgery, but once he was satisfied that her orthopedic problems were progressing satisfactorily, did not see her during the time she was being treated for medical problems unrelated to the orthopedic surgery by an internist. He did write medical notes on the first five postoperative days at the conclusion of which his postoperative care for the orthopedic surgery was completed. Were it not for her unrelated medical problems, the patient would have been released and he did see her once, (Nov.2) prior to her discharge after her medical problem had been resolved. On the basis of all the testimony, it is found that in this case, Dr. Okuboye did not fail to keep proper medical records. Respondent also saw a patient for a fracture of the left lateral malleolus, (the protuberance on both sides of the ankle joint), and is alleged to have failed to timely perform an examination of the patient; failed to have timely provided treatment; and failed to have performed a complete examination. In this case, Petitioner's expert pointed out that the chart kept by the Respondent failed to show any reference to a knee injury which was disclosed on post-treatment X-rays evaluated by him. Respondent is also alleged to have failed to have cleaned and irrigated the wound which was a part of the injury, and that he administered only an intramuscular injection of antibiotics. In the opinion of the witness, it makes no difference if there was an infection or not. It is, in his opinion; a bad practice to not debride and clean the wound. Further, he was concerned that the patient records kept by the Respondent did not reflect whether the Respondent responded to the emergency room at the time he prescribed the treatment or not. From the review of the records, he could not tell. Review of the case records by Respondent's expert showed there was no open fracture which required debridement or specific cleaning. The wound was a small abrasion. As a general rule, an injury should be more than 1/2 inch in size or have some bone showing in order to require debridement, (removal of foreign material and dead or damaged tissue). If those conditions are present, proper procedure is to clean the wound and to provide antibiotics, which the Respondent did, and the treatment recommended by him met appropriate standards. This is the better point of view. As to the records kept by the Respondent, a note regarding the action taken here was dictated by Respondent two days after the patient was discharged. The patient records show a postoperative X-ray was taken by Respondent but there is no indication in the record showing that surgery was done. The patient was admitted through the emergency room and was sent to the floor even before the Respondent was contacted. As a result, Respondent did not see the patient in the emergency room. The ER notes prepared by someone else refer to an abrasion and an approximately 1/4 inch tear in the skin. The injury was cleaned in the ER and the patient was sent to the floor after which the Respondent was advised by telephone there was a "questionable" fracture of the ankle. In response, Respondent gave orders for immobilization of the wound and administration of antibiotics. The following day, when Respondent saw the patient, he could see no open wound nor could he find evidence of a fracture. As a result, he discontinued the prescription for antibiotics and discharged the patient who, it should be noted, did not sustain an infection and who did well in his recuperation. Respondent indicates he had been told by the family physician who admitted the patient and the nurses on the floor, with whom he discussed the patient, that there was no open wound sustained by this patient. On the basis of this information, Respondent prescribed the questioned course of treatment and it would appear it was appropriate and well within standards. Between November 12, and November 22, 1983, Respondent acted as surgical consultant regarding a patient being treated at Gateway Community Hospital for a metatarsal fracture. Respondent performed an open reduction and internal fixation of the fracture and Petitioner now claims that Respondent failed to keep adequate medical records justifying the course of that patient's treatment. In that case, Petitioner does not claim improper treatment by the Respondent. However, one expert for Petitioner could not determine with any degree of certainty whether or not the procedure was required because of the absence of pre- operative X-rays and because of the inadequacy of the records for him to look at. The other Petitioner expert agreed that the Respondent took adequate care of the patient but because of the absence of postoperative film, the taking of which is a general practice within the medical community, he was not able to determine, nor would the Respondent be able to determine, whether the surgeon missed anything in performing the surgery. Respondent's evidence unequivocally contradicted the testimony of both Petitioner's experts. There were X-rays taken prior to the procedure by Respondent which showed a fracture of the outside metatarsus, (long foot bone). He proposed outpatient surgery of one day and reduced the fracture, inserting two pins as security. The postoperative X-rays show proper reduction. In fact, there are several sets of postoperative films and those taken after the holding pins placed in the fracture were removed show good reduction and full healing. Respondent discharged the patient from orthopedic care after surgery for release the next day if approved by the referring, physician, Dr. Lew. However, Dr. Lew kept the patient in the hospital one or two days after that for a reason not related to the orthopedic surgery done by Respondent. This would tend to explain the reason for there being no follow-up progress notes on the two days following the operative report done by Respondent on November 23. The failure to keep adequate notes adversely affects the entire care team not just the attending physician, as without adequate notes, the team cannot tell what is going on with the patient. The entire care is summarized in the progress notes and the failure to make notes on time leaves a hole. That cannot be said to have been the case here, however, since the orthopedic treatment of the patient was completed with the dictation of the operative report and the patient was discharged by Respondent. The patient's retention in the hospital for several days more was by another physician on a matter totally unrelated to the Respondent's treatment and Respondent had no responsibility to keep records on that portion of the patient's hospitalization. It cannot be said, then, that Respondent's records were inappropriate in this case. Respondent is also alleged to have improperly failed to perform a procedure of open reduction and internal fixation of an ankle fracture on a patient treated by him at Gateway Hospital between January 20, and January 25, 1983. In this case, Petitioner's expert questions whether the inner bone was properly reduced. X-rays taken subsequent to the procedure, show the reduction left a big gap and an irregular joint and the doctor feels the procedure, as it was done, was below standards. The other Petitioner expert concurs. There were two fractures. The smaller, did not need to be fixed since it was less than 1/3 of the ankle area and medical opinion indicates that fractures of less than 1/3 of the area should not be fixed. The other was fixed improperly in that Respondent should have used a tension band instead of a screw. If he had done so, there would have been a better fixation. Respondent's expert disagrees, pointing out that the postoperative X- rays show the position of the bones as placed by the Respondent, was quite acceptable. The failure to get an anatomic, (as developed by nature), reduction is not indicative of substandard care. It is sometimes not possible to put bones back the way they were prior to the fracture. In the instant case, when the operation and casting were done, the results were acceptable. The doctor concludes this was a very difficult operation to do and under the circumstances, the Respondent's performance met the standards within the community. Respondent's other expert agrees. This was an extremely difficult fracture of three sections of an ankle. Admittedly, Respondent's work resulted in a slight bone irregularity. A smooth reduction would be ideal, but it is unlikely that an anatomic reduction could be had in this case. No matter how skilled the work, a fracture of this kind is likely to result in some arthritis, and the failure to use a tension band, as suggested by one of Petitioner's experts, as opposed to a screw as chosen by the Respondent is a matter of choice. Neither gives better results and the Respondent's choice here, in these circumstances, was reasonable. Between December 18 and December 27, 1984, Respondent performed an open reduction and internal fixation of a fractured right hip. Petitioner alleges that Respondent performed a surgical procedure which was unnecessary, failed to properly perform the surgical procedure done, and failed to keep adequate medical records justifying the patient's treatment. In this case, Respondent inserted a Jewett nail, a non-collapsing nail, into the bone. The bone collapsed and drove the nail up into the end of the bone in an inappropriate manner. One of Petitioner's experts took issue with Respondent's use of the Jewett nail calling it an outdated device. In his opinion, the Respondent did not plan properly to have the appropriate device on hand when it was needed. His opinion is supported by that of the other Petitioner expert who pointed out that the procedure resulted in an inadequate fixation. He contends the Respondent should have used a collapsible nail and that Respondent's technique of cutting the bone after the collapse was inappropriate and resulted in a shortening of the leg. He believes this procedure was improper and falls below medical standards in the community. He was also of the opinion that Respondent's record keeping in this case was inadequate. Petitioner's expert in medical records found several problems with Respondent's records on this patient. The initial note was dictated after surgery instead of when the consult was first done. No progress notes were in the file for those days when the patient was not seen by the Respondent. There was no showing that the patient was seen by someone left in charge by Respondent in his absence. Since medical records provide a history of the case and allow the follow-on staff to provide continuation of care, the evidence showed Respondent's records in this case were below standard. Respondent's witness, Dr. Weiss, does not believe that the use of the Jewett nail is necessarily inappropriate. The fact that the Jewett nail did not work out for the Respondent in this case and required follow-up surgery, is not necessarily indicative of improper treatment. Studies of similar fractures in elderly patients show that 70% had some deviation and many similar cases show penetration of the head of the bone by the nail such as was the case here. While there are newer nails used by many orthopedic surgeons, the Jewett nail is still appropriate. The physician can avoid penetration at the time of the insertion and Respondent did so, but penetration cannot always be avoided after surgery when weight is placed on the limb. Respondent's other expert who reviewed this case stated that the fixed nail used by Respondent, if properly used, gives equally good results as the newer collapsible nail. Cutting of the bone is a well known and appropriate procedure in cases where necessary, as here. In evaluating the testimony of the experts, it should be noted that neither of the Board's experts interviewed Respondent or in any way discussed with him his professional reasons for doing what he did. Their opinions given here as expert testimony were based on evaluation of records and X-rays only whereas the opinions of Respondent's experts were based on review of the same documentation and also on interviews with Respondent who was questioned and who expounded on his medical rationale. Having analyzed the procedure done by the Respondent here and having evaluated the testimony of all witnesses, it is found that the procedure as followed by Respondent did not fall below the appropriate medical standards within the community. However, the allegation regarding Respondent's failure to keep proper medical records has been established. Respondent is a native of Nigeria, who took his medical training in England, graduating from Kings College Medical school in 1961. He interned in the United States at Bridgeport Hospital, served his residency and as a research fellow in Canada, and returned to the United States for a two year general surgery and three year orthopedic surgery residency at Albert Einstein Medical Center in New York. Respondent came to Florida in 1973 and has been in private practice as a sole practitioner since that time. He is Board eligible in orthopedic surgery and certified in neurological and orthopedic surgery by the American College of Neurological and Orthopedic surgery, not to be confused with the American Board of Orthopedic Surgery. He is also a member of the Royal College of Surgeons. At one time, Respondent practiced at Gateway Hospital in St. Petersburg where all the cases involved in the proceeding came up and where he was involved in legal action involving a matter he had handled. Respondent won that case but nonetheless, had to sue the hospital to recover his expenses. When Gateway Hospital was sold to Humana, he was again involved in litigation with the hospital to retain his privilege to practice there. Thereafter, he was called before the hospital committee regarding the instant cases in a staff privilege matter and as a result, the hospital referred them to the Department of Professional Regulation. Respondent believes two factions in the medical community seek his dismissal and the revocation of his license. He presented a detailed litany of grievances against various members of the hospital staff and others who, he contends, are engaged in a program to destroy him professionally and remove him from the practice of medicine. Since his medical privileges at the hospital have been rescinded, he can no longer accept referrals in orthopedic surgery from other members of the staff at Gateway and as a result, referrals that would ordinarily go to him, are now going to other, more favored members of the staff who retain surgical privileges. He contends his troubles, which culminated in this hearing, are both economically and racially motivated, and also involve an effort to rid the hospital of foreign trained physicians. There is no evidence to corroborate Respondent's charges and , therefore, the decision regarding his standard of practice and his record keeping must be based on the professional evidence presented at this hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Julius A. Okuboye, be reprimanded. RECOMMENDED this 23rd day of February, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearings Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1988. Appendix to Recommended Order In Case No. 86-1048 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. For the Petitioner Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as contra to the weight of the evidence. Rejected as contra to the weight of the evidence. Accepted to the extent that Respondent's reduction was not anatomic but rejected to the extent "it possibly could have been better treated in a cast." Rejected as contra to the weight of the evidence. Rejected as to all but last sentence which is irrelevant since the latter portion of the hospitalization discussed here was after patient had been discharged by Respondent and did not relate to orthopedic treatment. Accepted and incorporated herein. 14-16. Rejected as contra to the weight of the evidence. 17&18. Accepted and incorporated herein. 19. Rejected as contra to the weight of the evidence. 20-21. Rejected as contra to the weight of the evidence. 22. Accepted as to certain records and rejected as to others as discussed in the body of the Recommended Order. For the Respondent Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. First sentence rejected as a restatement of Petitioner's position. Remainder accepted and incorporated. First sentence rejected as above. Last sentence accepted and incorporated. Remainder rejected as a restatement of the evidence. First sentence rejected as above. Second sentence rejected as a restatement of evidence. Third through Sixth sentences accepted and incorporated. seventh rejected as a restatement of Petitioner's position. Eighth and Ninth sentences accepted and incorporated. First sentence rejected as above. second sentence accepted. Remainder accepted and incorporated. First sentence rejected as above. Remainder accepted and incorporated. First sentence rejected as above. Remainder accepted and incorporated. Accepted and incorporated. Rejected as to some cases, accepted as to others as defined in the Findings of Fact herein. COPIES FURNISHED: David E. Bryant, Esquire Suite 2000, Ashley Tower 100 South Ashley Drive Tampa, Florida 33602 Glenn M. Woodworth, Esquire Woodworth and Dugan, Chartered Wittner Centre West 5999 Central Avenue Suite 103 St. Petersburg, Florida 33710 Dorothy Faircloth Executive Director Department of Professional Regulation Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of charges set forth in a three-count Administrative Complaint. The Administrative Complaint charges the Respondent with violations of paragraphs (m), (q), and (t) of Section 458.331(1) Florida Statutes.1
Findings Of Fact At all times material to this case, the Respondent, Donald A. Tobkin, M.D., has been licensed, and continues to be licensed, to practice medicine in the State of Florida. His license number is 30942.5 Sometime during the month of December 2004, the Police Department of Hollywood, Florida, (HPD) received information from a confidential informant that the Respondent was soliciting drug-prescribing business and was writing inappropriate and excessive prescriptions for controlled substances. On the basis of that information, the HPD initiated an undercover operation to investigate the information received from the confidential informant. As part of the undercover investigation, on the evening of January 20, 2005, at approximately 9:56pm, an HPD female detective named Nicole Coffin made a telephone call to the Respondent's telephone. The Respondent answered the telephone and identified himself by name. Detective Coffin pretended to be a person named Melissa Beech. She pretended to be a person who was seeking to obtain OxyContin, which is a Schedule II controlled substance. During the entire undercover investigation, Detective Coffin pretended to be a drug-seeker while interacting with the Respondent. On the telephone she told the Respondent that she wanted a prescription for OxyContin and also told the Respondent that a girl somewhere on Federal Highway had given her the Respondent's card and had told her she could call the Respondent if she needed a prescription. Detective Coffin, in her role as Melissa Beech, did not initially describe any medical complaint to the Respondent; she just said she wanted a prescription for OxyContin. In response to the request for a prescription for OxyContin, the Respondent told the make-believe drug-seeker that he could provide the requested prescription, but that they would have to have a "medical reason" for such a prescription. The Respondent then asked the make-believe drug-seeker if she had ever been in an automobile accident. The make-believe drug-seeker answered "yes," because that is the answer she thought would provide a basis for a "medical reason." The Respondent then proceeded to ask the make-believe drug-seeker a long series of leading questions which, if answered "yes," could provide the appearance of a "medical reason" for the requested prescription for OxyContin. This series of questions was for the purpose of establishing a contrived "medical reason" for the prescription sought by the make-believe drug-seeker. There never was, and there never appeared to be, any real "medical reason" for the prescription sought by the make-believe drug-seeker. The sole purpose for the many questions asked by the Respondent, and for the Respondent's written notations related to those questions, was to create the illusion, or the false impression, that there was a "medical reason' for the prescription when, in fact, there was no such reason. The detective who was pretending to be a drug-seeker answered "yes" to all of the leading questions asked by the Respondent. She answered "yes," even when that was not a truthful answer, because she was trying to give the answers she thought the Respondent wanted to hear.6 The Respondent's leading questions included questions asking about such things as whether the make-believe drug-seeker had ever had an automobile accident, whether she had suffered a herniated disk as a result of that accident, whether she had had an MRI, whether she had had any subsequent accidents, whether she had tried any other drugs to relieve pain, whether she had used Oxycontin in the past, and whether in the past the Oxycontin had relieved her pain. During the course of the first telephone conversation between Detective Coffin and the Respondent a number of significant matters were not discussed. The Respondent did not discuss the possibility of surgical treatments to treat the back pain described in response to the Respondent's questions. The Respondent did not discuss the necessity of reviewing the MRI or X-rays that supposedly would confirm the "herniated disc" he had inquired about. The Respondent did not discuss the necessity of obtaining future MRIs, X-rays, or other diagnostic tests to evaluate the "severe back pain" supposedly described by Detective Coffin in her role as Melissa Beech. The Respondent did not mention that she would need to have any follow-up visits with the Respondent. During the course of the first conversation between Detective Coffin and the Respondent, she told the Respondent that she had previously been obtaining Oxycontin "off the street" and that she was seeking a prescription from the Respondent because her street source had "dried up." She also told him that she had previously taken Valium and Percocet. During the course of the first telephone conversation Detective Coffin, pretending to be a drug-seeker, told the Respondent that she suffered from back pain as a result of the make-believe automobile accidents. She did not say that she was currently experiencing pain at the time of that telephone conversation. During the first telephone conversation the Respondent did not ask the make-believe drug-seeker any questions about her menstrual cycle, about whether she was pregnant, or about whether she had had any prior pregnancies or had ever had any children. However, in his written notes the Respondent included notations that purport to be answers to those unasked questions. Similarly, the Respondent did not ask the make-believe drug-seeker any questions about her consumption of alcohol, but included in his notes notations that purport to memorialize the answer to that unasked question. The Respondent's "history" notes also report that he warned the make-believe drug-seeker that OxyContin tablets should not be crushed or broken, even though he did not include any such warning in his telephone conversation with the make-believe drug-seeker. During the first telephone conversation, Detective Coffin was never asked about, and never provided any information about, whether other physicians had either prescribed OxyContin for her or had refused to prescribe OxyContin for her. The only prior sources of OxyContin she mentioned to the Respondent were non-prescription illegal sources on the street. The Respondent never discussed with Detective Coffin the possibility or necessity of a more structured medical treatment plan for addiction. The Respondent never discussed with Detective Coffin the possibility or necessity of a more structured medical treatment plan to treat a complaint of "severe pain." During the course of the first telephone conversation, the Respondent agreed to provide a prescription to the make- believe drug-seeker for a total of sixty-two 80-milligram OxyContin tablets. It was agreed that the make-believe drug- seeker would pay $100.00 for the first prescription and that the Respondent would provide similar prescriptions in the future for $50.00 per prescription. Towards the end of the first telephone conversation the Respondent told the make-believe drug-seeker that he had another matter to attend to and that she should call him later to arrange the time and place for the two of them to meet later that same evening. During the course of the first telephone conversation, which lasted for approximately 14 minutes, the Respondent made written notes of the answers given by the make-believe drug-seeker. Those notes were prepared in such a manner as to resemble the types of notes customarily made by physicians who are making a medical record of information elicited from a patient. A number of the details recorded in the Respondent's notes of the first telephone conversation were inconsistent with the information provided by the make-believe drug-seeker. Specifically, those notes contained a significant amount of information that was never uttered by the make-believe drug- seeker. The fictitious and false history details memorialized in the Respondent's notes are intentional falsehoods. Later that evening, at approximately 12:20am on January 21, 2005, Detective Coffin, still pretending to be the drug-seeking person named Melissa Beech, placed a second telephone call to the Respondent. She spoke with the Respondent for about three minutes on this occasion. Most of the second conversation consisted of providing the Respondent with information about the location where Detective Coffin would be waiting for him and information about where the Respondent should park when he arrived. Law enforcement officers of the HPD attempted to record both of the telephone conversations between the Respondent and Detective Coffin. Both of those attempts were unsuccessful. There is no recording of either of the telephone conversations. Sometime later that evening, during the early morning hours of January 21, 2005, the Respondent met the make-believe drug-seeker at the motel or efficiency apartment. He entered the room where the make-believe drug-seeker was pretending to be staying. Prior to his arrival, two cameras had been concealed in the room by the HPD police officers. During the entire time the Respondent was in the room the two cameras were attempting to record everything he said and everything he did, as well as everything said or done by the detective pretending to be the drug-seeking person named Melissa Beech. After entering the room, the Respondent spoke with the make-believe drug-seeker and asked her additional questions related to her request for a prescription for OxyContin. He made some written notes that purported to be summaries of her answers. During the course of the meeting with the make-believe drug-seeker the Respondent provided her with a document titled "Patient's Acknowledgement," which she signed, but did not read. That document contained information about the patient-physician relationship, about what was expected of the patient, and also memorialized the patient's informed consent to the treatment she was requesting from the Respondent. The Respondent also conducted a brief physical examination of the make-believe patient and made written notes that purported to be a memorialization of what he had observed during the course of his examination. The Respondent's examination of the make-believe drug-seeker included the following: check of pulse and blood pressure, check of reflex responses at several joints, and check of chest sounds with stethoscope. The Respondent performed a deep tendon reflex test on Detective Coffin by striking her wrists, elbows, and knees with a medical hammer. Detective Coffin's feet remained on the floor during this test. A deep tendon reflex test cannot be performed properly with the subject's feet touching the floor. Such a test performed in such a manner will not produce reliable results. The Respondent indicated in his written notes that he had examined Detective Coffin's head, eyes, ears, nose, and throat. However, the Respondent did not perform any examination at all of Detective Coffin's head, ears, nose, or throat. The Respondent perhaps performed a partial examination of Detective Coffin's eyes, but did not perform an adequate examination of her eyes. The Respondent indicated in his written notes that Detective Coffin's pupils were equal, round, and reactive to light and accommodation. However, the Respondent did not conduct any examination of Detective Coffin's eyes that was sufficient to support a conclusion that they were equal, round, and reactive to light and accommodation. The Respondent included in his written notes that Detective Coffin's chest and lungs were clear to auscultation and percussion. The Respondent did not examine Detective Coffin in a manner that could determine whether her chest and lungs were clear to auscultation and percussion. Therefore, the Respondent did not have any basis for writing that the detective's chest and lungs were clear to auscultation and percussion. The Respondent included in his written notes an observation that Detective Coffin's abdomen was soft. The Respondent never touched or otherwise examined Detective Coffin's abdomen. The Respondent had no factual basis for writing that Detective Coffin's abdomen was soft. In his written notes the Respondent indicated that Detective Coffin experienced pain upon lifting her leg thirty degrees. Detective Coffin never raised either leg in the Respondent's presence and never complained of pain in his presence. There was no factual basis for the subject notation. The Respondent never conducted a Rhomberg examination on Detective Coffin, but he included in his written notes an observation that a Rhomberg test was negative. There was no factual basis for such a notation. The Respondent included in his written notes an observation that he had examined Detective Coffin's gait. However, the Respondent never performed an adequate and sufficient examination of Detective Coffin's gait. The Respondent did not conduct a range of motion test of Detective Coffin. The Respondent never asked Detective Coffin to lift her leg towards her chest. Nor did he ask her to touch her toes. The Respondent never asked her to manipulate her body in any way. At no time during the encounter between Detective Coffin and the Respondent did Detective Coffin state that she was experiencing pain. At no time during that encounter did she behave or move in any manner that would suggest she was experiencing pain. To the contrary, Detective Coffin crossed and uncrossed her legs, alternatively slouched and sat up straight in her chair, and made other movements that would indicate to a reasonable prudent physician that she was not experiencing any pain at all. The Respondent never discussed with Detective Coffin the necessity of obtaining further MRIs, X-rays, or other forms of diagnostic testing. He never discussed any need to obtain and review any prior medical records. The Respondent never asked Detective Coffin to sign a medical records release document that would have authorized the Respondent to obtain prior medical records. The Respondent's written notations regarding his examination of the make-believe drug-seeker contain false information because, among other things, the notations contain the results of tests and examinations the Respondent did not perform. Such false notations are intentional falsehoods. The Respondent never discussed with Detective Coffin the need for a follow-up appointment. The Respondent never asked Detective Coffin for any form of identification. Under the circumstances presented in this case, a reasonable prudent physician would have performed a range of motion test and a leg-raising test, neither of which were performed by the Respondent. Under the circumstances presented in this case, a reasonably prudent physician would have established a treatment plan that would have included a schedule for follow-up visits, a review of prior medical records, and plans for future diagnostic tests. The Respondent did not establish any type of treatment plan. The prescription provided to Detective Coffin was inappropriate, unjustified, and excessive because the physical examination was inadequate, the medical record was falsified, and the patient never exhibited any sign of being in pain. Under the circumstances presented in this case, the Respondent's act of providing a prescription to a total stranger with no medical justification for doing so was an action taken other than in the course of the Respondent's professional practice. Ultimately, the Respondent wrote and delivered a prescription to the make-believe patient. The prescription was for sixty-two 80-milligram tablets of OxyContin. This was a 31- day supply if the OxyContin was taken as directed; one tablet every 12 hours. The Respondent wrote several warnings at the bottom of the prescription document. The warnings included such things as the fact that OxyContin impairs driving ability and may cause drowsiness, loss of balance, and/or loss of coordination. The Respondent also wrote on the prescription: "Must swallow whole and do not crush or break." Other law enforcement officers of the HPD were listening to and observing the events inside the room. Shortly after the Respondent handed the prescription to the make-believe patient and received the one hundred dollars from her, other law enforcement officers rushed into the room, arrested the Respondent, and seized various items of the Respondent's personal property, including the medical record he had been preparing regarding his care and treatment of the make-believe patient. With regard to obtaining information about the characteristics of, and the proper use of, specific drugs, medical doctors customarily rely on the information contained in the Physician Desk Reference (PDR) and on the information contained in the manufacturer's package insert that often accompanies a drug. The package insert for OxyContin includes the following information: (Following an initial caption reading WARNING) OxyContin Tablets are a controlled-release oral formulation of oxycodone hydrochloride indicated for the management of moderate to severe pain when a continuous, around-the- clock analgesic is needed for an extended period of time. * * * (Following caption reading CLINICAL PHARMACOLOGY) Oxycodone is a pure agonist opioid whose principal therapeutic action is analgesia. *** With pure opioid agonist analgesics, there is no defined maximum dose; the ceiling to analgesic effectiveness is imposed only by side effects, the more serious of which may include somnolence and respiratory depression. * * * As with all opioids, the minimum effective plasma concentration for analgesia will vary widely among patients, especially among patients who have been previously treated with potent agonist opioids. As a result, patients must be treated with individualized titration of dosage to the desired effect. The minimum effective analgesic concentration of oxycodone for any individual patient may increase over time due to an increase in pain, the development of a new pain syndrome and/or the development of analgesic tolerance. * * * OxyContin Tablets are associated with typical opioid-related adverse experiences. There is a general relationship between increasing oxycodone plasma concentration and increasing frequency of dose-related opioid adverse experiences such as nausea, vomiting, CNS effects, and respiratory depression. In opioid-tolerant patients, the situation is altered by the development of tolerance to opioid-related side effects, and the relationship is not clinically relevant. As with all opioids, the dose must be individualized . . . because the effective analgesic dose for some patients will be too high to be tolerated by other patients. (Following caption reading WARNINGS) OxyContin 80 mg and 160 mg Tablets ARE FOR USE IN OPIOID-TOLERANT PATIENTS ONLY. These tablet strengths may cause fatal respiratory depression when administered to patients not previously exposed to opioids. * * * Concerns about abuse, addiction, and diversion should not prevent the proper management of pain. The development of addiction to opioid analgesics in properly managed patients with pain has been reported to be rare. However, data are not available to establish the true incidence of addiction in chronic pain patients.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case to the following effect: Dismissing Counts One and Two of the Administrative Complaint; Concluding that the Respondent is guilty of having violated Section 458.331(1)(q), Florida Statutes, as charged in Count Three of the Administrative Complaint; and Imposing a penalty consisting of an administrative fine in the amount of ten thousand dollars ($10,000.00) and the revocation of the Respondent's license to practice medicine. DONE AND ENTERED this 26th day of June, 2006, in Tallahassee, Leon County, Florida. S 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 26th day of June, 2006.
The Issue The issues in these consolidated cases are whether Respondent committed the violations charged in four Administrative Complaints and, if so, what is the appropriate discipline.
Findings Of Fact The Department has regulatory jurisdiction over licensed chiropractic physicians pursuant to section 20.43 and chapters 456 and 460, Florida Statutes. In particular, the Department is authorized to file and prosecute an administrative complaint against a chiropractic physician after a probable cause panel (PCP) of the Board determines there is probable cause to suspect a licensee has committed a disciplinable offense, and provides direction to the Department on the filing of an administrative complaint. At all times material to the allegations in the Administrative Complaints, Dr. Aderholdt has been licensed to practice chiropractic medicine in Florida, having been issued license number CH 7814. He was first licensed on January 6, 2000. He practices in an office in Bradenton, Florida. Vax-D Therapy Three of the four Administrative Complaints involve patients of Dr. Aderholdt who received Vax-D therapy. The complaints are not directed to the provision of Vax-D therapy itself, or to any other treatments provided by Dr. Aderholdt. In all four cases, the patients generally spoke well of the chiropractic care they received from Dr. Aderholdt and the manner in which they were treated by him and his office staff. Vax-D therapy is a modality using the Vax-D model for decompression of the spinal discs and spinal structure. It is used to treat a range of issues associated with low back pain, including herniated, degenerated, and bulging discs. The Vax-D model is the originator of this technology; it was the first spinal decompression device. It is a large computerized moving table. It can be programmed to provide specific axial or distractive loading. The table moves in and out, pumping nutrients at the discs. Some research shows that it can actually pull discs away from where they are causing irritation on nerves and the spinal cord. The Vax-D model is FDA-cleared for use, and the literature supports its efficacy. The Vax-D model is an expensive piece of equipment. The price range for the initial purchase is between $100,000 and $150,000, with ongoing expense thereafter for maintenance and updates. Vax-D therapy is one of the most expensive forms of therapy, if not the most expensive, in the chiropractic profession. Other models coming out after Vax-D, as well as other tools, arguably can be used for similar purposes. However, as Petitioner’s expert readily acknowledged, Vax-D is the “Rolls Royce. It’s a really nice tool.” Vax-D spinal decompression is not covered by Medicare. In fact, when it comes to chiropractic care, Medicare has never covered anything besides spinal adjustments. Coverage for Vax-D treatment by private insurance companies is rare. In 2012, Dr. Salvatore LaRusso presented a study on spinal decompression to the profession, before the Federation of Chiropractic Licensing Boards, to inform state regulators of issues associated with Vax-D therapy. The one regulatory concern he reported was that some physicians were improperly billing Vax-D as a surgical decompression procedure, when it is plainly not surgery; it is an alternative to surgery, properly billed as a non-surgical decompressive tool or traction device. Dr. LaRusso’s study also made findings on the common methods of packaging and selling the service, and the range of charges observed. He found that most practitioners providing Vax-D therapy were selling the service as a cash item in their practice, with payment up front often required. The common model was to sell a package with a certain number of visits, with or without additional services included. Dr. LaRusso found that the per-visit charges ranged from $150 to $450, depending on the ancillary services added to the decompression. Dr. Shreeve does not have any issue with the use of or charges for Vax-D therapy. Dr. Aderholdt offers Vax-D therapy pursuant to a Vax-D Therapy Payment Plan agreement (Vax-D Agreement), which is comparable to the multi-visit packages that Dr. LaRusso’s study found to be common. After initial consultation, with intake forms, patient history, x-rays, evaluation, and examination, if a patient is determined to be appropriate for Vax-D therapy, Dr. Aderholdt will give his treatment recommendations and then turn the patient over to his office staff to address the financial aspects. If the patient wants to proceed with Vax-D therapy, the Vax-D Agreement will be reviewed and signed. Patients A.M., R.O., and P.D. each received Vax-D therapy, pursuant to signed Vax-D Agreements. The terms of the Vax-D Agreements for the three patients were the same. Patient B.O. wanted Vax-D therapy, but she was determined to not be an appropriate candidate for it. The Vax-D Agreements in evidence for Patients A.M., R.O., and P.D. provided that the named patient committed to 25 to 28 Vax-D therapy sessions, for $250.00 per session. The total amount that the named patient agreed to pay Dr. Aderholdt for 25 to 28 sessions was $5,500.00, which computes to an actual per-session cost of between $196.43 (for 28 sessions) and $220.00 (for 25 sessions). For the agreed price for 25 to 28 sessions, the Vax-D Agreement provided the following treatment package: at each session, the patient would receive 30 minutes of Vax-D therapy, 30 minutes of full range interferential electrical muscle stimulation (EMS), 15 minutes of hydro-massage therapy, and manipulation (adjustments) by the doctor if needed. The first set of x-rays was also included. Dr. Aderholdt requires an up-front payment for the Vax-D therapy package. For patients who want Vax-D therapy but need help coming up with the funds, Respondent’s office staff has put the patients in touch with Care Credit, which is a medical credit program. If a patient applies and is accepted, Care Credit will finance the cost without charging interest to the patient if the loan is repaid within one year. Care Credit apparently charges a fee to Respondent when credit is extended, similar to the fees charged to merchants by credit card companies for credit card purchases. No evidence was presented regarding Care Credit’s approval criteria or how widely this method is used. All that is known about Care Credit from the record evidence is that two patients who received Vax-D therapy applied for Care Credit and were approved. The other Vax-D patient charged half of the agreed price on a Visa credit card the first day of treatment, and charged the other half after 15 treatment sessions. Patient A.M. From the end of July 2013 to early February 2014, Dr. Aderholdt treated Patient A.M., then a 66-year-old female, for lower back pain and hip pain. Patient A.M. had tried other treatments and had seen chiropractors before, but reported that her pain kept getting worse. As shown by A.M.’s medical records, A.M. was first seen by Respondent on July 29, 2013. That day, A.M.’s intake form, patient history, and x-rays were taken and evaluated, and A.M. was examined by Respondent. Respondent then formulated A.M.’s initial treatment plan. Respondent recommended Vax-D therapy, along with chiropractic adjustments, EMS, and hydrotherapy. The initial treatment plan specified a two- session per day protocol for the first two to three weeks. On July 30, 2013, A.M.’s husband, J.M., signed the Vax-D Agreement (in the space for Patient Signature). J.M. did not remember signing the Vax-D Agreement, but both he and A.M. identified his signature on the Vax-D Agreement. A.M. was named in the agreement as the patient who committed to 25 to 28 Vax-D therapy sessions and agreed to pay $5,500.00 for those sessions. Respondent did not require full payment of the agreed price prior to treatment. Instead, he accepted payment of one- half ($2,750.00) of the Vax-D therapy package price, which was charged on A.M.’s or J.M.’s Visa credit card on July 30, 2013. In accordance with the initial treatment plan, Patient A.M. received two treatment sessions per day beginning July 30, 2013, in the morning and afternoon, for nearly three weeks. After 15 treatment sessions--more than half of the 25 to 28 sessions covered for $5,500.00--the balance of $2,750.00 was charged on A.M.’s or J.M’s Visa credit card. Between July 30, 2013, and February 3, 2014, Patient A.M. had more than 60 Vax-D therapy sessions--approximately 64 total sessions. A.M. initially testified with a fair degree of confidence that she thought she had about 30 treatment sessions, until she reviewed her prior statement made to Petitioner. A.M. testified that at every session, she received Vax-D decompression therapy, hydrotherapy, adjustments “up and down” her spine, and ice packs. She left every session feeling better, with relief from her pain. The relief was temporary, however; she said the pain would come back after a few hours. After 29 sessions, having received all of the treatment sessions covered by the Vax-D Agreement, A.M. started paying additional amounts for more Vax-D therapy and the other ancillary services that she continued to receive. For approximately 35 additional treatment sessions beyond those covered by the Vax-D Agreement, A.M. made seven additional payments in the total amount of $2,226.00. In all, A.M. paid $7,726.00 for approximately 64 Vax-D therapy sessions. Rounding down to an even 60 sessions, she paid an average of $128.77 per session. A.M. was covered by Medicare at the time of her treatment. She did not have any private “Medicare supplement” health insurance. At some point, the subject of Medicare coverage came up. The details of what was said, when, and to whom were not clearly established. The only fact clearly established was that Dr. Aderholdt did not bring up the subject. Patient A.M. testified that Dr. Aderholdt did not talk to her about payment when she first visited, but that she and J.M. asked him, “Does Medicare cover this,” and he said, “Yes.” J.M. said that Dr. Aderholdt did talk to them about payment, saying “we need to do so many treatments and we should pay so much money.” J.M. said that they asked, “Will Medicare take care of it?” Dr. Aderholdt answered, “Yes, we will bill Medicare.” J.M could not say whether he asked about billing Medicare before or after he signed the Vax-D Agreement, since J.M. did not remember signing the Vax-D Agreement. When Dr. Aderholdt was asked if he told A.M. her treatments would be covered by Medicare, he answered, “No, I don’t believe I did, no.” As an interesting contrast, Patient R.O. testified that Dr. Aderholdt told him Medicare would not cover treatment under the same Vax-D Agreement; Dr. Aderholdt does not believe he made that statement, either. In the middle of the spectrum, Patient P.D. testified that Respondent never said anything to her about insurance coverage or financial arrangements. He would only talk about treatment, turning P.D. over to the office manager or billing person to address the financial issues. This version is consistent with Respondent’s testimony that he does not address “the money thing” with patients. Instead, he said he assesses x-rays, takes patient histories, performs the evaluation and examination, and ultimately formulates the recommended treatment plans, whether Vax-D or something else. Then he turns the treatment plans over to his staff to address the financial issues with the patients. A.M. and J.M. did not demonstrate a clear and certain recollection of what they asked Dr. Aderholdt or exactly what he answered. Indeed, both J.M. and A.M. could not remember most every other detail about A.M.’s treatments, often confidently stating details that were shown to be wrong by more than a little, including how many treatment sessions, and how much was paid. For example, Patient A.M. initially reported that she had paid $13,179.00 to Dr. Aderholdt, when the total was $7,726.00. The undersigned cannot find--without hesitancy--that Dr. Aderholdt made any representation to J.M. and A.M. regarding Medicare coverage before J.M. signed the Vax-D Agreement by which A.M. committed to the Vax-D therapy package. Dr. Shreeve made the point well that it is difficult to resolve this kind of he said-she said conflict, although he made the point while confusing Patient A.M. (who claimed Respondent said there would be Medicare coverage) with Patient R.O. (who claimed Respondent said there would not be Medicare coverage), in the following exchange: Q: With Patient RO, what’s your understanding of what Dr. Aderholdt told him regarding Medicare reimbursements? A: Counselor, I’m going to tell you that the investigative record shows that the patient stated that Aderholdt told him that they would be paid, is what my recollection is. And, yet, that’s not something that weighs heavily on my mind because I wasn’t there. This becomes a “he said, she said.” He said he didn’t; he said he did. I can’t get into that fight. That’s not an issue for me. (Jt. Ex. 12 at 35). (emphasis added). Respondent (or his staff) may have told A.M. and J.M., when they asked about Medicare, that the office would complete and submit the Medicare claim forms. Respondent (or his staff) may have told A.M. and J.M., when they asked, that Medicare proceeds paid on the Vax-D therapy package would be refunded. But it would be unreasonable, on this record, to find that Respondent misrepresented that Medicare would provide full coverage, or that Respondent schemed to induce A.M. and J.M. to sign up for Vax-D by guaranteeing that Medicare would pay back everything, when Respondent did not even bring up the subject.8/ The Administrative Complaint alleges that on one or more occasions, Respondent did not submit Medicare claims for Patient A.M.’s treatment. Petitioner has apparently abandoned this allegation; its PRO has no proposed finding identifying any dates of service for which claims were not submitted. The Medicare claim forms for Patient A.M. were compiled by Petitioner’s counsel for use in taking Respondent’s deposition, and are attached as deposition exhibit 2. The evidence is difficult to cull through, as there are 84 separate pages of claims and they are not in chronological order; they start out in chronological order, but then jump forward two months, then continue jumping around on dates, back and forth and back again. As best can be determined, all service dates shown in Patient A.M.’s medical records appear to be accounted for by corresponding claim forms. It appears that one claim form may have a clerical mistake, identifying the date of service as August 3, 2013, when there was no treatment session that day; the actual service date may instead be September 4, 2013, which is the date the claim form was submitted. The Medicare claim forms in evidence demonstrate that claim forms for A.M.’s treatments were regularly submitted, either on or very shortly after the dates of service. The evidence is insufficient to prove that Respondent did not submit Medicare claims for Patient A.M.’s treatment.9/ The Administrative Complaint contains no allegations regarding the disposition of the Medicare claims, although it does allege that Patient A.M. received no reimbursement from Respondent for Medicare payments. Petitioner’s expert seemed to be under the impression that Respondent received Medicare payments, because he criticized Respondent for not providing reimbursement to Patient A.M. Respondent testified that he has received no payments from Medicare for A.M.’s treatments, and Petitioner acknowledges in its PRO that Medicare has not made payments to Respondent. Acknowledging that the Administrative Complaint allegation has not been established, Petitioner instead proposed a finding (not alleged in the Administrative Complaint) that all of A.M.’s Medicare claims submitted by Respondent were rejected and payment was denied. No evidence was offered to prove the actual disposition of the 84 pages of Medicare claims submitted for A.M.’s treatments. Instead, the only record evidence of Medicare adjudications on any claims for A.M. is a group of explanation of benefits forms (EOBs) attached to a March 6, 2014, letter from Patient A.M. to Petitioner’s investigator, which is a deposition exhibit. Patient A.M. identified the small handful of EOBs attached to the March 6, 2014, letter as EOBs she had at that time, reporting on the disposition of Medicare claims submitted by other providers during the same time period as her treatments with Respondent. The EOBs reported, as to each claim, whether the claim was covered in whole or in part; and, if covered, what amount was paid, or, if not, why not. There were no EOBs for claims submitted by Respondent’s office. Patient A.M. was not asked for, and did not offer, any additional EOBs at her deposition. If, in fact, all of the Medicare claims submitted by Respondent were rejected and payment denied, then there would be a stack of EOBs explaining why each claim was denied. On this record, the evidence is insufficient to make any finding as to the outcome of the Medicare claims submitted for Patient A.M.’s treatment. There is no evidence proving whether the claims were denied, approved, or simply never acted on by Medicare. A separate allegation in the Administrative Complaint is that Patient A.M. requested copies of the Medicare claim forms submitted by Respondent’s office for her treatment. Patient A.M. said that she made verbal requests to Respondent’s office staff for the Medicare claims on more than one occasion, and the parties stipulated that Patient A.M. made these requests. Respondent’s office should have responded by giving Patient A.M. copies of the Medicare claims. Dr. Aderholdt said that he was not aware that Patient A.M. had requested copies of her Medicare claim. But it is his responsibility to ensure that his staff promptly responds to requests by patients for insurance claim forms. In the course of Petitioner’s investigation, the Medicare claim forms for Patient A.M. were provided to Petitioner (according to the investigator’s report, on May 16, 2014). It is unknown whether a set of the claim forms was provided to A.M. at that time. She is entitled to a copy of the claim forms if she has not already been given a set. Respondent should have verified that Patient A.M. has received the claim forms she requested, or, if not, provided them to her. Finally, the Administrative Complaint alleges that on the Medicare claim forms for A.M.’s treatments on August 6, 2013, and December 11, 2013, Respondent utilized Current Procedural Terminology (CPT) code 98941, which is the code for adjustments to three or four regions of the spine. However, Respondent’s Subjective, Objective, Assessment and Plan notes (referred to as SOAP notes) for those dates identify spinal adjustments to L3, L4, and L5, which are in a single region--the lumbar region. Beyond the SOAP notes, however, Dr. Aderholdt’s notes for Patient A.M.’s morning session on August 6, 2013 (there were two sessions that day), show multiple adjustments, not only to the lumbar region, but also, to the sacrum and ilium. Dr. Aderholdt’s notes for December 11, 2013, show multiple adjustments to the thoracic, lumbar, and sacrum regions. At hearing, Dr. Shreeve identified the five spinal regions as follows: “a region would be considered cervical, thoracic, lumbar, sacrum, ilium.” (Tr. 106, lines 21-22). Based on his testimony, and considering all of Patient A.M.’s medical records, there were multiple adjustments to three spinal regions on both days identified in the Administrative Complaint.10/ The Administrative Complaint has no other factual allegations regarding CPT code issues in connection with Patient A.M.’s treatment. The complaint pointedly identified one specific CPT code that was used on two specific dates, but was allegedly not supported by SOAP notes for either date. At hearing, Dr. Shreeve attempted to expand the factual allegations regarding CPT coding issues by questioning other CPT codes shown on A.M.’s patient ledger. Dr. Shreeve’s criticism was improper, not only because he strayed beyond the allegations in the Administrative Complaint, but also, because the criticism was based on his misunderstanding of what Dr. Aderholdt’s patient ledgers portray. In particular, Dr. Shreeve was critical of CPT code 99212 entries (for focused patient examinations) on A.M.’s patient ledger, without use of modifier code -25. He said that these repeated entries of CPT code 99212 were inappropriate without use of modifier code –25, to indicate they should not be considered for payment, because they are redundant with other CPT treatment codes that include examination. Dr. Shreeve should have reviewed the actual Medicare claim forms to look for the modifier codes, because the CPT code 99212 entries do, in fact, add a modifier of -25. The modifier code conveys information to the third-party payor, as Dr. Shreeve acknowledged, regarding whether or how payment should be made. The modifier codes need to be used, when appropriate, on the Medicare claim forms, and they were used just as Dr. Shreeve said was appropriate. The modifier codes do not appear on Dr. Aderholdt’s patient ledgers because they are not claim forms sent to third- party payors, nor are they bills sent to patients. Instead, a patient ledger, as used in Respondent’s practice, is an internal practice management tool to account for and track everything associated with treating patients: how many examinations, how many adjustments, how many Vax-D treatments, how many ice packs, and so on. Dr. LaRusso explained that this is a perfectly reasonable use of patient ledgers, and is a common practice among physicians. The usage statistics are analyzed for practice management, for such purposes as making changes in the services or treatments and stocking supplies. Dr. Shreeve admitted that he assumed Respondent’s patient ledgers reflected the exact CPT coding used on insurance claims and bills sent to patients. The evidence refuted that assumption. Modifier codes were used on the Medicare claims. And Dr. Shreeve admitted he saw no evidence that Respondent’s patient ledger for A.M. was ever sent to her as a bill, or that any patient ledgers were ever sent to any patients as bills. Dr. Shreeve also admitted that there is no standard for patient ledgers, much less a regulation mandating the contents and use of patient ledgers. As he put it, he could go to 1,000 chiropractic offices and find 1,000 different variations in what is called a patient ledger. Dr. Shreeve would like to see a standard adopted for “patient ledgers,” but his aspiration simply underscores that there is no standard now; Respondent’s practices cannot be judged against or held to conform to a non-standard, non-regulation.11/ In somewhat stream-of-consciousness fashion, untethered from the Administrative Complaint, Dr. Shreeve interjected a number of other comments about Dr. Aderholdt’s practices related to Patient A.M., such as the adequacy and legibility of his medical records and the quality of x-rays. He raised questions about Dr. Aderholdt’s compliance with trust accounting requirements in connection with payments for A.M.’s Vax-D therapy, and Dr. Aderholdt’s compliance with obligations in connection with Petitioner’s investigation. None of these factual matters were alleged in the Administrative Complaint, and none of the corresponding statutory or rule provisions implicated by Dr. Shreeve’s open-ended commentary were charged in the Administrative Complaint. No findings can be made on matters not alleged, and violations not charged, in the Administrative Complaint. Moreover, there is no competent evidence fleshing out any of these matters, because they were not alleged, charged, or identified in the Joint Pre-hearing Stipulation as issues of fact or law to be litigated. Patient B.O. Between April and June 2013, Respondent treated B.O., then a 78-year-old female, for back and neck pain. B.O. is married to R.O. They both went to Respondent’s office on the same day for their initial consultation. B.O. completed intake forms, had x-rays and patient history taken, and was examined by Respondent, similar to R.O. Whereas R.O. was determined to be a candidate for Vax-D therapy, B.O. was not. Unlike for the Vax-D therapy plan, there was no protocol calling for a certain range of sessions needed and no set payment correlated to a planned number of sessions for B.O.’s recommended treatment plan that called for adjustments, hydrotherapy, and ice packs. At the time of her treatment, B.O. had Medicare coverage and a “Medicare supplement” insurance policy through Horizon Blue Cross and Blue Shield of New Jersey (Horizon). As was his practice, Respondent had B.O. address the financial aspects of the treatment he recommended with his office staff. Upon review of B.O.’s insurance coverage, B.O. was informed by Respondent’s staff that Horizon would probably cover the cost of her treatment that exceeded her copay. The staff determined that, although it was possible Horizon would apply its lower in-network copay of $15.00 per visit, there was no guarantee that Horizon would not consider Respondent out-of- network, with a copay of $25.00 per visit. Therefore, B.O. was charged $25.00 per visit. She paid that amount per visit, although sometimes she did not pay at all on one or more visits, and would catch up at a subsequent visit. B.O. received treatments on 23 occasions. B.O. experienced some relief from her pain as a result of those treatments.12/ For those 23 visits, B.O. paid a total of $575.00 in copays. After B.O. had stopped going to Dr. Aderholdt for treatment, Horizon determined that its lower in-network copay of $15.00 per visit applied. The total copay amount should have been $345.00 for 23 visits. The difference is $230.00. The Administrative Complaint alleges that Respondent “overcharged” B.O., misrepresenting that her copay was the out- of-network charge, to exploit her for financial gain. This allegation was not proven. Respondent made no representation. The representations of his staff, as described by B.O., were not shown to be the product of anything other than a good faith attempt to determine the undeterminable details of insurance coverage. There is no evidence to support the allegation that B.O. was intentionally charged more than she should have been charged, based on the information available at the time. On this point, the expert testimony was in lockstep: figuring out insurance coverage details is a “nightmare.” It is virtually impossible, according to both experts, to obtain sufficient information to make a correct determination for a new patient on such issues as in-network versus out-of-network, because, as they agreed, the insurance coverage details keep changing. “Now, you can be in network today and they can decide you’re out of network tomorrow. And then you can be out of network and then they decide you’re in network, and they don’t tell you.” That’s--that makes no sense.” (Dr. Shreeve, Tr. 131). In fact, when asked how he determines if a patient is out-of-network, Dr. Shreeve responded: “Counselor, I don’t. I leave that to the patient. I run a cash practice. I give them a bill. We’ll help them fill out a health insurance claim form, if they need it. But they pay us when they receive the service.” (Tr. 130). The Administrative Complaint also alleges that Respondent billed Horizon for medical visits by Patient B.O. that did not occur. There is no credible evidence of this allegation; the evidence is to the contrary. Petitioner contends in its PRO that Respondent billed B.O. for treatments received on June 3, 7, 11, and 14, 2013, when B.O.’s appointments were cancelled on those days. The record citations offered by Petitioner fail to support this proposed finding. Instead, B.O.’s bank records directly refute the proposed finding, and corroborate Dr. Aderholdt’s treatment notes and the SOAP notes that detail B.O.’s treatment on those four days.13/ In addition to B.O.’s bank records, B.O.’s patient records include the “merchant copy” receipt for a debit card payment on June 14, 2013. The receipt shows that a $50.00 payment was made at Dr. Aderholdt’s office on June 14, 2013, and it bears the clear signature of B.O. B.O.’s accusation that she did not go to Respondent’s office for treatment on these four days is belied by the documentation that she personally went there and paid the copay charges for her treatments on those four days ($50.00 check on June 7 for two copays; $50.00 debit card payment on June 14 for two copays). Petitioner’s own expert, Dr. Shreeve, conceded that this evidence refutes B.O.’s accusation that her insurer was billed for treatment on four days when she did not go to Respondent’s office for treatment. A separate problem proving this allegation (besides B.O.’s false accusation) is that there is no evidence to prove what was billed to Horizon for B.O.’s treatments. There is no evidence in the record of claims submitted by Respondent’s office to bill Horizon for B.O.’s treatment. In pre-hearing discovery proceedings, shortly before hearing, Petitioner sought to compel production of Medicare claim forms or Horizon claim forms submitted by Respondent’s office. However, Petitioner declined an Order compelling production that was offered along with additional time to pursue this evidence. Instead, Petitioner chose to go forward with the hearing on the basis that there were no such records (as Respondent represented). Another allegation in the Administrative Complaint is that B.O. was not given a copy of her medical records upon request. B.O. testified that she made several verbal requests to two staff persons at Respondent’s office, Lisa14/ and Amanda, for her medical records. She said she was given a copy of her patient ledger, but nothing more. B.O. and R.O. then mailed a letter addressed to Respondent that they jointly wrote on December 31, 2013, requesting their medical records and updated patient ledgers. Respondent said that he was never informed of any verbal requests for records, nor did he believe he ever saw the letter that was mailed to him. Indeed, B.O. handwrote on her file copy of the letter, provided to Petitioner’s investigator: “Letter to Dr. who probably didn’t see – no response to date.” The evidence is clear and convincing that Respondent has failed in his obligation to promptly respond to B.O.’s requests for medical records. However, there is no evidence that Respondent was aware of the requests before the investigation and intentionally refused to comply, or that he ever instructed his office staff to ignore such requests. But even though the evidence only establishes that Dr. Aderholdt’s staff failed to promptly respond to requests for medical records, the obligation to ensure these patient requests are promptly addressed remains Dr. Aderholt’s responsibility. It is clear that his office procedures require serious overhauling, as both Dr. Aderholdt and his expert acknowledged. It is unknown if B.O.’s medical records were provided to her when they were produced by Respondent’s counsel during the investigation.15/ In her deposition, when B.O. was asked if she had gotten the records from Respondent’s office yet, she said “not from them.” Among other remedial steps in the aftermath of this proceeding, if B.O. and R.O. do not already have copies of their medical records and updated patient ledgers as they requested long ago, Respondent must provide them. It is concerning that he did not come to this hearing with proof that he had provided B.O. and R.O. with the records they had requested or confirmed that they already had a copy. Lastly, the Administrative Complaint alleges that Respondent received payment from Horizon for B.O.’s treatment, but has not provided a refund. There is insufficient evidence to determine whether B.O. is entitled to a refund. The only information regarding the extent to which Horizon covered B.O.’s treatment is the information in the EOBs issued by Horizon after B.O.’s treatment ended, identifying amounts that would be covered and reporting payments to Respondent. For B.O.’s treatments, Horizon paid $1,770.00 to Respondent. What is unknown is whether B.O. owed more for her treatments than what Horizon paid. Dr. LaRusso reasonably opined that the receipt of an insurance payment would not generate an obligation for a patient refund if the payment is applied to a balance due by the patient. No evidence, methodology, or calculation was offered to prove that after Horizon’s payment was applied, a refund was owed to B.O. As noted previously, Respondent’s “patient ledger” is an internal practice management tool that does not function as an accounting of what a patient or insurance company owes. However, the patient ledger for B.O. reflects a total amount of $5,575.00 in services provided to B.O. Application of the Horizon payments of $1,770.00 and B.O.’s payments of $575.00 would reduce the patient ledger amount by less than half. Again, this is not to say that Patient B.O. owes the remaining patient ledger amount, but it is at least a point of reference suggesting the possibility that the Horizon payment did not cover all of B.O.’s treatment costs. Viewed another way, all B.O. paid for 23 treatment sessions was $25.00 per visit. B.O. was informed at the outset that she would not be charged for the full treatments she would be getting, because Horizon would “probably” cover her treatment except for the copay. Although she paid $230.00 more than the amount Horizon ultimately applied as copays, if B.O. owed $230.00 or more for treatment provided that was not covered by Horizon’s payment, then no refund would be due. Patient R.O. As noted previously, Patient R.O. is Patient B.O.’s husband. Like B.O., R.O. was treated by Respondent from April through June 2013. R.O., then a 64-year-old male, sought treatment for severe back pain. R.O. completed the intake form, had x-rays and patient history taken, provided detailed records of recent treatments and surgeries (including back surgery), and was evaluated and examined by Dr. Aderholdt. Dr. Aderholdt determined that R.O. was a candidate for Vax-D therapy. Respondent’s then-office manager, Lisa, took over to address the financial aspects of the recommended treatment. R.O. informed Respondent’s staff that he could not afford to pay $5,500.00 up front. R.O. was given contact information for Care Credit. He called Care Credit, then submitted an application. R.O.’s application was approved, and Care Credit agreed to finance the cost of Vax-D therapy without charging interest if the amount was paid off within one year. R.O. accepted the loan, and the result was that Care Credit paid Respondent $5,500.00 minus a fee absorbed by Respondent, similar to fees by credit card companies charged to merchants for sales using their credit cards. R.O. testified that he has paid off the Care Credit loan. R.O. signed the Vax-D Agreement, by which he committed to 25 to 28 Vax-D therapy sessions at $250.00 per session, for a total payment amount of $5,500.00. His Vax-D Agreement included the treatment package detailed in paragraph 13 above. R.O. testified that during the time of his treatment by Respondent, he had health insurance coverage with Medicare and Horizon (the private Medicare supplement insurance coverage that B.O. also had). He also had Tricare for Life, but said that that coverage would not have been applicable. R.O. recalled that Respondent told him that none of his insurance plans would cover the Vax-D therapy. As previously noted, Respondent does not believe he discussed insurance coverage with R.O., as that is not his standard practice. Regardless, R.O. had no expectation of insurance coverage. R.O. found the Vax-D therapy helpful in relieving his pain. He felt better after every treatment and wanted to continue. Rather than stopping after the 25 to 28 sessions included in the Vax-D Agreement, R.O. had a total of 40 treatment sessions. However, at some point, Respondent’s office manager informed R.O. that he needed to pay for additional sessions. R.O. said he could not afford to pay more, and discontinued treatment. After R.O. discontinued his treatments, he received an EOB from Horizon, stating that Horizon had paid a total of $5,465.84 in claims for both R.O. and B.O. According to the EOB summary, as noted above, $1,770.00 was paid to Respondent for treatments to B.O. The rest--$3,335.84--was paid to two providers for services to R.O. (A minor discrepancy is noted, in that Petitioner’s PRO stated that $3,335.00 was paid to Respondent for treatments to R.O.; however, the EOB reports that $10.84 was paid to a different provider (“Ga Emergency Phys”) for services provided to R.O. Thus, the actual total payment to Respondent for R.O.’s treatment was $3,325.00). The total amount paid to Dr. Aderholdt for R.O.’s 40 Vax-D therapy sessions, including Horizon’s payments, was $8,825.00, an average of $220.63 per session. R.O. believes the insurance payment should be paid to him as reimbursement for part of the $5,500.00 he paid. But that payment was for 25 to 28 sessions. The insurance payment was reasonably applied to the additional amounts due for R.O.’s sessions that were not covered by the $5,500.00 payment. No reason was offered as to why Dr. Aderholdt should not have applied the insurance payment to charges owed for the 12 sessions that were not covered by the Vax-D Agreement. Chiropractic physicians are not required to provide free care. Dr. Shreeve admitted that he does not provide chiropractic care to patients for free. As found above with respect to Patient B.O., R.O. joined B.O. in submitting a written request to Respondent for their medical records and updated patient ledgers by letter dated December 31, 2013, although Respondent said that he did not see the letter that was mailed to him. The findings above with respect to B.O., as one party to the joint written request, apply with equal force to R.O. as the other party to the joint written request. The Administrative Complaint also included an allegation that Respondent failed to practice chiropractic medicine at an acceptable level of skill, care, and treatment, charged as a violation under section 460.413(1)(r). This was the only charge in any of the Administrative Complaints that was based on the care provided by Dr. Aderholdt. The allegation was that adjustments indicated as having been performed on R.O. were physically impossible. However, at hearing, Petitioner’s expert retreated from the allegation, agreeing that the procedure in question was plausible. As a result of his concession, Petitioner’s PRO abandoned the charge, stating, “Petitioner is no longer pursuing discipline for the alleged violation of section 460.413(1)(r).” Pet. PRO at 4. Patient P.D. In March and April 2013, Respondent treated Patient P.D., then a 62-year-old female, for back pain. After completing intake forms and patient history, Patient P.D. was x-rayed, then examined and evaluated by Dr. Aderholdt, who determined that P.D. was a candidate for Vax-D therapy. Dr. Aderholdt turned P.D. over to his then-office manager, Lisa, to address the financial aspects of his recommended treatment plan. P.D. confirmed that Dr. Aderholdt never discussed financial issues or insurance with her. P.D. signed the Vax-D Agreement on March 8, 2013, the same day that she completed a Care Credit application that was approved for $5,500.00. P.D. paid off the Care Credit loan in 11 months, at $500.00 per month, so the loan was interest-free. At the time of the treatments, P.D. was not yet eligible for Medicare. She had insurance coverage through Blue Cross Blue Shield of Michigan (Blue Cross). P.D. said that Lisa, the office manager, told her that she would file claims with Blue Cross. Thereafter, P.D. had 33 Vax-D therapy sessions. P.D. was pleased with the Vax-D therapy. She found it effective in relieving her pain. P.D. learned at some point from Blue Cross that several months after her treatment ended, Blue Cross paid Respondent for a portion of P.D.’s treatment. No evidence was offered to prove the details of the Blue Cross coverage, such as EOBs explaining what was covered and what was not. P.D. said that she contacted Respondent’s office and spoke with staff multiple times before Respondent provided her reimbursement in the full amount of the Blue Cross payment. Respondent refunded $946.45 on April 8, 2015, and $1,046.45 on April 10, 2015, for a total of $1,992.90. P.D. acknowledged that she has been fully reimbursed and is owed nothing further. The Administrative Complaint includes an allegation that Respondent improperly utilized CPT “billing codes” 99204 and 99212 for P.D.’s first session on March 6, 2013. Dr. Aderholdt admitted that for March 6, 2013, P.D.’s patient ledger incorrectly lists both CPT code 99204 (for a comprehensive examination for a new patient), and CPT code 99212 (for a focused examination for an established patient). The first CPT code should have been the only one entered on this day. The second code was entered by mistake. Although Dr. Aderholdt admitted the error made in the patient ledger, there is no evidence that the erroneous CPT code was “utilized” for billing purposes. No evidence was presented that both CPT codes were submitted by Respondent in a claim for payment to Blue Cross (and Petitioner did not charge Respondent with having submitted a claim to P.D.’s insurer for a service or treatment not provided). No evidence was presented of the actual claims submitted to Blue Cross. No evidence was presented to show that P.D. was ever sent a bill utilizing the referenced CPT codes. The error recording an extra CPT code on P.D.’s patient ledger might throw off Respondent’s internal practice management statistics, but there is no evidence that the admitted CPT coding mistake on the patient ledger was repeated in any claim or bill submitted to anyone. Expert Opinions Considering All Four Cases Both Dr. Shreeve and Dr. LaRusso offered their overall opinions, taking the four cases as a whole. Dr. Shreeve’s Oinions Dr. Shreeve testified that, while he might be more understanding of issues he saw in each individual case, “I’ve got four cases that I reviewed together. I received them all at once. So my view on each individual case might be seen as a little more tolerant of something I saw. But when it becomes repeated, it becomes less understanding [sic].” (Tr. 109). In forming his opinions, Dr. Shreeve relied on allegations that have not been proven, his own extension of the Administrative Complaint allegations to add other concerns about use of CPT codes (which were also shown not to be valid concerns), and his observations about a litany of matters nowhere mentioned or charged in the Administrative Complaints. Dr. Shreeve made clear that he elevated his opinion from concerns about sloppy office practices to fraud, misrepresentation, and patient exploitation, because of matters that were either unproven, not alleged or charged, or both. For example, he injected the concern, shown to be based solely on patient ledgers, that CPT code 99212 appeared many times without the -25 modifier when used in conjunction with an adjustment CPT code. Starting with A.M.’s case, he complained of the repeated use of CPT code 99212 without a -25 modifier, when CPT code 98941 (adjustments) was used for the same office visit. He said, “If we were going to bill 99212, an E/M code with that, we would use a modifier of -25.” (Tr. 110). As previously found, however, Dr. Aderholdt did use the -25 modifier with every entry of CPT code 99212 in the Medicare claim forms. In explaining how his opinion was affected by his misimpression from the patient ledgers that CPT code 99212 was not used with the -25 modifier, he said: This is repeated over and over during the record. If it were one off, it occurred in one place in the ledger or on a form, you know, everybody is human. They can make a mistake. If it is the trend, that becomes not a mistake. That becomes, I’m doing the wrong thing. And if I’m doing it over and over again, and I’m then billing for one service two times, two different ways, and I’m – I hope to get paid for it. Then that’s where I start to see the trend of exploiting the patient for financial gain. (Tr. 111). Dr. Shreeve further elevated the significance of not seeing modifiers with the evaluation codes in the patient ledgers, when he spoke about R.O.’s case: If [Dr. Aderholdt] did both codes [for evaluation and adjustments] every visit, if he did, which is not normal, we would have to have a modifier, the -25, to tell us it’s a reduced service because it’s duplicative. A modifier was never present in any record I saw on this patient or any other patient of the records of Dr. Aderholdt. So misusing the codes. This is not standard of care that we expect, and this appears to me exercising influence on the patient to exploit them for financial gain. That’s what it looks like to me. By the time we’re through with the third case that’s what I see. (Tr. 148). Not only was this CPT coding issue not alleged in any of the four Administrative Complaints, but it is a false accusation. If Dr. Shreeve did not see a single use of CPT code 99212 with the -25 modifier in any record he saw, then he did not look at the records very carefully. As found above, the only evidence of actual claims submitted to any third-party payor--the Medicare claim forms for Patient A.M.--shows that CPT code 99212 was never used without the -25 modifier. But Dr. Shreeve only looked at the patient ledgers for modifiers. As also found above, the only two CPT coding issues that were alleged (improper use on two specified dates of CPT code 98941 for adjusting three or four spinal regions for Patient A.M.; and improper use on Patient P.D.’s first day of service of two patient examination CPT codes for billing purposes) were not proven. Dr. Shreeve also relied on the allegation that Patient B.O.’s insurance carrier was billed for treatment that was not provided. He pointed to “notes” written (by B.O.) on the patient ledger stating that the patient cancelled, but CPT codes were entered for treatments that day. He concluded: That’s blatant. I don’t have a way to explain that away. To me that absolutely says, I billed for something that I didn’t do. That’s fraud. Because that’s with intent. That’s not an accident. (Tr. 137). When Dr. Shreeve was shown the $50.00 debit card receipt signed by Patient B.O. on June 14, 2014, he quickly retreated: “That would indicate that they were there, even though they said they were not. So my apologies for that. It’s good to clear that up.” (Tr. 183). Later, he added that the June 14, 2013, payment of $50.00 was for that visit and the prior visit on June 11, 2013. He explained that this was consistent with Respondent’s daily notes, which identified treatments for each visit and also logged the copay charges by visit and B.O.’s periodic payments. Dr. Shreeve did not explain how he would alter his overall opinion after conceding that what he characterized as blatant fraud by Dr. Aderholdt was actually a false accusation by the patient. In formulating his overall opinion that what otherwise might be viewed as mistakes or sloppy office practice were elevated in his mind to fraud and exploitation, Dr. Shreeve also relied heavily on matters that were neither alleged nor charged in the Administrative Complaints, and, as a result, were not fleshed out with competent evidence in the record. Dr. Shreeve repeatedly alluded to issues regarding trust accounting requirements in statute and rule. The four Administrative Complaints that were issued as directed by the PCP on June 19, 2018 (as noted on the Administrative Complaints), contain no allegations related to trust accounting practices. The PCP-authorized Administrative Complaints do not charge Dr. Aderholdt under the trust accounting statute, section 460.413(1)(y), or the trust accounting rule, Board rule 64B2- 14.001. To the extent Dr. Shreeve’s perception of trust accounting issues contributed to his opinion that these four cases rise to the level of fraud and patient exploitation, that was error, and his opinion must be discounted accordingly. Likewise, Dr. Shreeve gratuitously offered critiques of Dr. Aderholdt’s medical records, including complaints about the handwriting, complaints about x-ray quality, questions about the adequacy of justifications for the course of treatment, and suggestions regarding how he would rewrite SOAP notes. Again, the Administrative Complaints are devoid of allegations directed to the quality or adequacy of Respondent’s medical records, and they are devoid of charges under the medical records provision in section 460.413(1)(m) and the corresponding medical records rule, Board rule 64B2-17.0065. To the extent these critiques contributed to Dr. Shreeve’s opinion that these four cases rise to the level of fraud and patient exploitation, that, too, was error, and his opinion must be discounted accordingly. Dr. Shreeve also relied on what he characterized as Respondent’s failure to respond, or failure to respond quickly enough, to investigative subpoenas. He made it clear that his opinion was greatly influenced by his perception that Respondent intentionally failed to meet his obligations in responding to the investigations: I think this is absolute fraud. The doctor is not wanting to do the right thing, has flagrant disregard for the law, and the statutes and the rules for the profession, for the Department of Health by not responding. (Tr. 153). Despite Dr. Shreeve’s view that he thinks it is “very clear” that Dr. Aderholdt did not respond timely during the investigation, the timeline and details of the investigation were not established by competent evidence; there is only hearsay evidence addressing bits and pieces of that history, with huge gaps and many questions about the reasons for those gaps (if the reasons why investigations were so protracted was relevant). But the details of the investigations are not laid out in the evidentiary record because the Administrative Complaints do not contain factual allegations related to Dr. Aderholdt’s actions or inactions during the investigation process, nor are there any charges predicated on what was or was not done during the investigation process. Either these matters were not presented to the PCP in June 2018 for inclusion in the Administrative Complaints, or they were presented and not included. Either way, Dr. Shreeve’s perception regarding whether Dr. Aderholdt met his legal obligations in responding to the investigations cannot be injected now. It was improper for Dr. Shreeve to consider, and give great weight to, circumstances that were neither alleged nor charged in the PCP-authorized Administrative Complaints. As found above, the proven allegations are that Respondent failed to provide Patient A.M. copies of the claims submitted to Medicare for her treatment (although she may have them now); and Respondent failed to provide copies of the medical records of Patients R.O. and B.O. upon their joint written request (although they may have them now). Only by considering allegations that were not proven and by injecting matters not alleged or charged was Dr. Shreeve able to characterize these four cases as involving the same problems again and again. In terms of the proven allegations, however, the only duplicative finding is with respect to the husband and wife team, in that Respondent did not meet his obligation to promptly respond to their joint request for medical records and updated patient ledgers. The matters considered by Dr. Shreeve beyond the allegations and charges in the Administrative Complaints were also improperly used by Dr. Shreeve to buttress his view that two disciplinary actions against Dr. Aderholdt based on facts arising in 2005 and 2006, raised “the same or similar” issues. Dr. Shreeve’s attempt to draw parallels between the prior actions and these four cases was unpersuasive. Dr. LaRusso disagreed with the characterization of the two prior actions as similar to the issues presented here. Dr. LaRusso’s opinion is credited. A comparison of the allegations, ultimately resolved by stipulated agreement in two 2008 Final Orders, confirms Dr. LaRusso’s view in this regard. The first disciplinary action was based on Respondent’s treatment of one patient in February 2005. An administrative complaint alleged that Respondent failed to complete intake forms, take the patient’s history, and conduct a sufficient examination to support the diagnosis. Respondent was charged with violating section 460.413(1)(m) by not having adequate medical records. The same facts gave rise to a second count of violating section 460.413(1)(ff) (violating any provision of chapters 456 or 460, or any rules adopted pursuant to those chapters), through a violation of rule 64B2-17.0065, which elaborates on the requirements for adequate medical records. There is no repetition of these statutory and rule violations charged in any of the four Administrative Complaints at issue here. The prior administrative complaint also alleged that Respondent billed the patient he saw in 2005 for neuromuscular reeducation and therapeutic exercises, when neither Respondent’s notes nor the SOAP notes reflected those services. In these cases, the only allegation regarding discrepancies between billing records and physician/SOAP notes is the allegation as to Patient A.M. that on two dates, Respondent used the CPT code for adjustments to three or four spinal regions, whereas the SOAP notes reflected adjustments to only one region. The prior disciplinary action supports the findings above that Respondent’s notes must also be considered, in addition to the SOAP notes, to determine what services A.M. received on those two days. A different kind of billing discrepancy allegation in Case No. 18-4485 is the claim that Respondent billed B.O.’s insurer for treatment on days on which services were allegedly never provided. This allegation was not proven, as found above. B.O.’s accusation that Respondent falsely charged for treatment on several days when no treatment was provided was itself proven to be a false charge. Perhaps Dr. Shreeve was thinking of this allegation, based on B.O.’s false charge, when he characterized the 2005 incident as involving the same or similar problems that he saw here. The allegation in the prior complaint was that the patient was actually billed for services not provided, and a refunded was ordered. At first, Dr. Shreeve believed the same was true in B.O.’s case. However, he later retreated and acknowledged that B.O. had not been truthful in her accusation. The only other allegation of a billing discrepancy in any of the four cases at issue was not a billing discrepancy at all, but rather, a CPT coding error on P.D.’s patient ledger that was not billed to anyone. As Dr. Shreeve noted, in the prior disciplinary action, Respondent agreed to be put on probation with a requirement that he practice with a monitor. Dr. Shreeve explained that the monitor would have worked with Respondent “to help this doctor not do the same behaviors that got them into trouble.” In his view, these four cases show that Dr. Aderholdt did not learn his lesson from the monitor “not to do the same problems again.” As he put it, “That really flips me rather quickly to think there’s a question of fraud.” (Tr. 152-153). To the contrary, whereas Respondent was faulted for not having intake records, patient histories, and appropriate examinations to support his diagnosis and recommended treatment plan in February 2005, no such issues were raised in these Administrative Complaints. Dr. Aderholdt did learn his lesson. The medical records for the four patients at issue include patient intake forms, patient histories, evaluations, and examinations that were not alleged to be inadequate. Nor was there any repetition of the problem with billing a patient for treatment or services that were not documented in the medical records taken as a whole, including Dr. Aderholt’s notes. The other disciplinary action resolved by settlement in a 2008 Final Order involved an advertising issue. The Department alleged that Respondent improperly advertised as a specialist in Vax-D disc therapy when the Board does not recognize any such specialty. The Department also found fault in the failure of the advertising to disclose the usual fee. The Department also critiqued an advertisement for identifying a different practice location than Respondent’s practice address of record. The charges were under section 460.413(1)(d), (cc), and (ff); rule 64B2-15.001(2)(e) and (i); and rule 64B2-10.0055. Quite plainly, this prior action bears no similarity to the four Administrative Complaints at issue here. No such allegations or charges were raised here. Dr. Shreeve did not contend that this prior action bears any similarity to the four cases here. Dr. Shreeve was never asked for his opinion as to the type or level of discipline he believes is warranted in these cases. However, his “flip” to “fraud,” due to the perceived repetitive nature of the issues in the four cases (whether charged or not)--which he characterized as the “same problems” in 2005 that resulted in discipline--was the basis for Petitioner proposing the most severe penalty available: license revocation, plus substantial fines and assessments of fees and costs. Dr. LaRusso’s Opinions Dr. LaRusso served as a Board member for multiple terms, and is a past-chair. After leaving the Board, he continued to serve on probable cause panels as recently as 2017. Having reviewed and been involved in thousands of disciplinary matters, he was of the strong opinion that nothing in the four Administrative Complaints warrant discipline at the level being sought here. Imposing a severe penalty in these four cases would be out of line with the Board’s prior practice in disciplinary matters. Dr. LaRusso’s studied review of all of the depositions and records in this case led him to opine that there is no evidence that Dr. Aderholdt deceived his patients, committed fraud, or engaged in double-billing or overbilling. Instead, Dr. LaRusso saw evidence of sloppy office practices, which he attributed to Dr. Aderholdt’s poor management skills. He has seen many doctors like Dr. Aderholdt over the years who just want to deal with taking care of patients. They do not want to have anything to do with administrative and clerical responsibilities. Instead, they leave everything besides patient care to their office manager and staff. In Dr. LaRusso’s view, Dr. Aderholdt’s office protocols and procedures require serious fine-tuning. He believes that Dr. Aderholdt would benefit from re-education in billing and collection practices, as well as laws and rules. He needs to ensure that procedures are in place, and followed, for prompt responses to patient requests for medical records or for claims sent to third-party payors. At the same time, however, Dr. LaRusso reasonably characterized the four cases as involving billing, clerical, communication, and correspondence issues. It bears emphasis that Dr. Aderholdt’s patient care is not in question. There are no issues of endangering the public, where a doctor is doing things that will hurt people, doing something dangerous or sexually inappropriate. Those are the cases where it is appropriate to go after someone’s livelihood, when the person does not belong in the profession. Dr. LaRusso observed that, rather than endangering the public, Dr. Aderholdt was helping his patients by relieving their pain, according to their own testimony. Dr. LaRusso agreed to become involved in this case because he found it so incongruous that the Department would be pursuing this action apparently to try to take Dr. Aderholdt’s license. Dr. LaRusso noted that the four investigations against Dr. Aderholdt were originally being spearheaded by a prior prosecutor for the Department (to whom Respondent’s counsel mailed CDs of patient records in 2014), and that the cases were assigned to Dr. Willis, who was a favored expert witness for the Department. Dr. LaRusso alluded to “inappropriate issues” with the prosecutor and expert that led to the Board having to pay a large award of attorneys’ fees and costs for pursuing discipline against Dr. Christian. According to Dr. LaRusso, those issues ultimately led to the prosecutor and expert being discharged from these cases. There is no evidence as to when or why Dr. Willis was replaced with Dr. Shreeve. Dr. Willis apparently was involved long enough to prepare an expert report. But then, according to Dr. LaRusso, the cases went dormant for a long period of time. The bits and pieces of hearsay evidence in the file comport with this understanding: there were four investigations that began upon complaints in 2014 by the four patients about billing and records issues; documents were collected from Respondent and from the patients; and Investigative Reports were issued, all before 2014 was over. It is unknown when Dr. Willis was involved, when he prepared his expert report, or when he was discharged from the cases. It is unknown when Dr. Shreeve was retained, but there was plainly some duplication of work, in that Dr. Shreeve prepared his own expert report. Neither expert report is in evidence. There is no evidence of any additional investigation or follow-up documentation from the patients or otherwise. There is no evidence of what was presented to the PCP--just that the panel met on June 19, 2018, and authorized the four Administrative Complaints issued on June 20, 2018. While this background is a bit of a curiosity, without impermissible speculation, the most that can be said about this history is that the protracted period of time from investigation to the PCP submission that resulted in issuance of the Administrative Complaints is apparently due, at least in large part, to the turnover in the prosecution-expert witness team assignments. Dr. LaRusso did not persuasively demonstrate grounds to cast nefarious aspersions on the Department for continuing forward with its investigation. One might reasonably question whether the Department dropped the ball, so to speak, in not updating its investigation, given the extended period of dormancy. For example, the Administrative Complaint in Case No. 18-4487 incorrectly alleged that P.D. was not reimbursed, when any cursory check with P.D. would have revealed the “news” that she had been repaid in April 2015, more than three years before the Administrative Complaint was authorized by the PCP. Dr. LaRusso may reasonably debate, as he did, whether the charges lodged against Respondent are inappropriate. And Dr. LaRusso may certainly question, as he did in convincing fashion, whether the discipline apparently being sought is unduly harsh, uncalled for, and way out of line with Board practice. But there is no basis in this record for attributing bad motives to the Department for prosecuting the Administrative Complaints. Dr. LaRusso’s opinions regarding the nature of the violations proven and the appropriate discipline in scale with those violations were more persuasive that Dr. Shreeve’s opinions. Dr. LaRusso’s opinions are credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Chiropractic Medicine: In Case No. 18-4484PL: Dismissing Counts I, II, and IV; and Finding that Respondent violated section 460.413(1)(aa), as charged in Count III; In Case No. 18-4485PL: Dismissing Counts I, III, and IV; and Finding that Respondent violated section 460.413(1)(i), through a violation of rule 64B2-17.0055(1), as charged in Count II; In Case No. 18-4486PL: Dismissing Counts II, III, and IV; and Finding that Respondent violated section 460.413(1)(i), through a violation of rule 64B2-17.0055(1), as charged in Count II; In Case No. 18-4487PL, dismissing Counts I and II; Placing Respondent on probation for a period of three years, with conditions deemed appropriate by the Board; Imposing a fine of $3,000.00; Requiring continuing education deemed appropriate by the Board; and Requiring payment of the costs of investigation and prosecution of the charges on which violations were found. DONE AND ENTERED this 15th day of February, 2018, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 15th day of February, 2018.
The Issue The issue for consideration was whether the Respondent's license as a physician in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Moheb Ishad Girgis El-Far was licensed as a physician in Florida under license number ME 0026895, and the Board of Medicine was the state agency responsible for the licensing and monitoring of physicians in this state. At all times pertinent to the issues herein, Respondent practiced medicine with a specialty in obstetrics at his clinic located a 401 East Olympic Avenue, Punta Gorda, Florida. Patient 2, C.L., first went to see Respondent at his office in Punta Gorda in January, 1989 because she was pregnant and had heard he was delivering babies in his office. She was referred to the Respondent by the Sarasota Health Department when she indicated she wanted to have her child in a birthing center. During that first visit, the doctor and patient agreed on a treatment plan which would culminate with the baby's being delivered in his office and C.L. paid for this pursuant to their agreement. During the period of the patient's prenatal care with the Respondent, he told her her baby was due on August 30, 1987, and when labor began, she was to come to his office and bring her own sheets. On August 24, 1987, C.L. began her labor and went to Respondent's office as agreed. By the time she got there, she was about ready to deliver and a few minutes after her arrival, she did so in a birthing room with her husband present. At the time of the delivery, both Respondent's wife and Ms. L.'s boss, neither of whom played any part in the proceedings, were standing in the doorway to the birthing room. No nurse was present and C.L. cannot recall seeing any sterilization or resuscitation equipment in the room. C.L. experienced little pain during the delivery, which appeared to go smoothly. Afterwards however, Respondent told her she had sustained an inverted uterus and when Respondent attempted to remove the afterbirth, she started to hemorrhage. When this happened, Respondent gave her a shot and towels with which she was to try to stem the bleeding while he tried to correct the uterine problem. He was unsuccessful and thereafter called the paramedics who came to his office and took C.L. to St. Joseph's Hospital in Punta Gorda for treatment. Respondent did not treat her at the hospital because he had no hospital privileges. While there she required 6 units of blood and 2 units of plasma. At no time during the course of her prenatal care did Respondent advise her to go to the hospital. She fully recovered. C.L. was shown pictures of Respondent's office taken by Department investigators at some time subsequent to her delivery. With the exception of the fetal monitor which she had seen in his office, the pictures she saw bore little similarity to the condition of the office whenever she was there. Though the office was not as messy as the pictures show, she was, nonetheless concerned about its condition at the time of her delivery. The carpet was dirty and so was the aquarium. She could not do anything about it at that time, however, and it was not so bad as to cause her to feel unsafe. S.K., Patient 1, first went to the Respondent for her pregnancy care in November, 1987 on a referral from a friend. They agreed on a fee of $1600.00 for prenatal care and delivery in his office. During these initial discussions, Respondent did not discuss in detail with the patient the possibility of complications. He stated only that if there were complications, they could probably be treated in the office. S.K. went to Respondent's office about 6 times after that initial visit. During this period, on an early visit, Respondent gave her some medicine samples and a prescription for vitamins. When she asked about the cost, he said he would include the cost of the samples when he billed her insurance company. During these visits, she also saw his personal office, an examining room, and a small room where the patient's blood pressure was taken. She noted that the office was not as clean and orderly as others she had seen, and in fact, was usually in a state of disarray. On one occasion when Respondent examined her, he was wearing a wrinkled shirt with a blood spot on it. The next time she went for a visit, Respondent was wearing the same shirt. S.K. was shown pictures of Respondent's office taken by investigators and several were similar to conditions she observed there. His personal office was not well organized and there was clutter about but not as aggravated as appears in the photos. Based on her experience with other doctors, Respondent's office was far more untidy and in disarray but not necessarily nonsterile or unsafe. On February 5, 1988, S.K. went to Respondent's office because she was having pains and thought she was in labor. When she called him and explained her symptoms, he told her to come in and he examined her when she did. He gave her something to calm her and to try to stop her labor in an attempt to save her baby. He gave her a shot of demerol and put her in an examining room to lie down. She slept there for quite a while with her husband present. When she awoke she again began to have pains but Respondent would not give her any more medicine. After a while, the baby spontaneously delivered while Respondent was sleeping in another room. He was called but by the time he came in, the baby was dead. He asked S.K. if she wanted to see the fetus but she declined. After a period of recovery, she was released to return home. When this patient came into the office that day and it appeared she was going to deliver, her husband asked Respondent if he thought she should be in the hospital. Respondent replied that it was up to her because the baby, if delivered, was too premature to survive. The decision not to go to the hospital was hers. Respondent did not try to dissuade her from going. In fact, in most ways she considered Respondent's treatment of her to have been satisfactory. During the period she was in his office Respondent was in and out of the room checking on her. The only complaint she has relates to his handling of the fetus she delivered. About 2 weeks after delivery she again went to see Respondent at his office where he showed her her baby which he had preserved in a jar of formaldehyde. This was a strange and sad experience for her. Mr. K. basically confirms that testified to by his wife. While she was in labor or sleeping prior to the delivery, he wandered about the building into other parts of the clinic. He also rested in one of the examining or birthing rooms and observed the general state of cleanliness of the facility was poor. For example, the floor and rugs were spotted throughout with a dark stain and the examining table also had a dark stain on it. These stains looked to him like blood. In addition, the hallway carpets were dirty, there were bags off debris laying out, spare pieces of wood were stacked in the halls, and medical instruments were left out in the birthing and examining rooms. In his opinion, many of the pictures shown to him displayed scenes similar to what he saw when he was there with his wife. Both Dr. Borris and Dr. Marley agreed that Respondent's treatment of Ms. K. had no relationship to her miscarriage. By the same token, neither claims that his treatment of Ms. L.'s inverted uterus was inappropriate. Both agree, however, that other factors in Dr. El Far's operation of his practice as regards both patients failed to conform to generally accepted standards of care in providing obstetrical services. Specifically, he failed to have a nurse present during the delivery; he failed to have emergency equipment in the form of resuscitative and lifesaving equipment available to handle potential surgical complications which might have arisen; he had no emergency backup care available; and he had no hospital privileges in Punta Gorda, the area in which he was engaged in an obstetrical practice. Without those privileges, it was not prudent for him to undertake a delivery in the office. While the prenatal care of patient 1 was within standards, the balance of Respondent's practice was below standards because: the patient was not monitored while in the office; if the conditions as appearing in the pictures existed at the time he was seeing patients, he did not meet sanitation standards because of the general disarray.; he attempted a delivery in his office when a hospital was only 1.5 miles away, (not prudent in light of the patient's condition when there was no emergency to justify it); and his records were not complete. The standard of a reasonably prudent physician is the same regardless of the locality. Acceding to the wishes of a patient, when to do so is not in the patient's best interests, is not necessarily acceptable medical care. Mr. Cook, the Department's investigator, inspected Respondent's office on September 16, 1988, in the company of investigator Clyne, as a result of a call he received from an agent of the Florida Department of Law Enforcement who was then on the premises. When they arrived, they observed a female sitting on the couch in the waiting room changing a baby's diaper. From conversation he had with Respondent at the time, Mr. Cook inferred the lady was a patient. In addition to the previously mentioned lady and the state investigative personnel, Cook also noticed two children, who Respondent indicated were his, running freely about throughout the building. Cook examined the patient log maintained by Respondent for that day and noted that two patients were scheduled. Nonetheless, while he was there, there were no nurses, receptionists or office staff present. Though Respondent claims he did not have any patients that day, and though Cook did not see any other than the lady aforementioned, from the patient log and the fact that at least one patient was there, it is found that Respondent was engaged in at least a minimum practice and was available to see patients. Mr. Cook observed conditions in Respondent's office on the day in question that were inconsistent with a proper medical practice. Trash was not contained, food was left open, and dust and dirt were in evidence, all in the area where medical services were or would be rendered. Mr. Cook took photos and a video tape of the condition of Respondent's office. The photos were those shown to the two patients who testified herein and to Mr. K. Though he looked throughout the office, Mr. Cook could find no sterilization equipment, no general anesthesia equipment, no blood transfusion equipment, and no emergency resuscitation equipment. When asked about his sterilization capability, Respondent stated his "heater" was broken and in for repairs. When during a visit to Respondent in October, 1988, Ms. Clyne told him he needed sterilizer equipment, he indicated it had recently been purchased. On that visit, Respondent had a patient in the office. Ms. Clyne again went to Respondent's office on February 15, 1989 and observed it to be still in a state of disarray. Ms. Hampton, another Department investigator, visited with Respondent in his office on January 11, 1989 and found it to be unsatisfactory. The waiting area was cluttered, the carpet was dirty, the walls stained, and magazines were laying around. The clinic area was piled up with mail leaving no counter space. Respondent took Ms. Hampton on a tour through the office during which she observed the computer, patient records, and the typewriter to be unclean. Her examination of the halls, examining rooms, birthing rooms, and the like revealed that in one room, a sink had an unclean speculum in it and others were lying about. The paper on one examining table was soiled and when Respondent saw that, he quickly tore it off. The spread in one of the birthing rooms was soiled and the floor needed sweeping. Trash cans were not lined and needed cleaning. The covering on the baby examining table was soiled and there were bloody cotton balls on a table in the room. She, too, saw no evidence of any sterilization, anesthesia, or emergency resuscitation equipment. On this visit, Respondent indicated he was not seeing any new patients; only those former patients who were still pregnant. Respondent indicates that during the period from July 4 through September 16, 1988 he had closed up his office for an extensive vacation and was living in his office on that latter date. He does not deny that his office was in the condition as depicted in the photos when they were made but contends he has since cleaned it up and put new carpet down. During the period his office was closed, he referred his patients to other doctors and has not been actively practicing while waiting for his malpractice insurance to come through. Respondent also does not deny that the Certificate of Education form he signed and submitted to the Board was in error. He contends, however, that at the time he signed it he believed it to be a certificate of regular continuing education hours, not a certification used for approval for dispensing drugs. He also claims that at no time did he intend to defraud the Board, and when Ms. Clyne brought the error to his attention, he wrote to the Board explaining what had happened. He contends that when he affirmed the statement that he had the appropriate hours, he considered the "a" in "affirm" to be a negative prefix indicating he did not have the required hours. This contention is both ingenuous and unbelievable. It is found that Respondent well knew the meaning and effect of the certification he signed and his affixing his signature thereto was both false and with intent to mislead.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license to practice medicine in Florida be suspended for two years and that he thereafter be placed on probation for an additional period of three years under such terms and conditions as are imposed by the Board of Medicine. RECOMMENDED this 30th day of October, 1989, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 30th day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1507 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings Fact submitted by the parties to this case. For the Petitioner: 1.- 3. Accepted and incorporated herein. Accepted and incorporated herein. Rejected in so far as it editorializes on the condition of the clinic. While below standard, there was no evidence of health hazard to patients. 6.-8. Accepted and incorporated herein. 9. & 10. Accepted and incorporated herein. 11. & 12. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein Accepted and incorporated herein. Accepted. & 18. Accepted and incorporated herein. 19. Accepted. For the Respondent: 1. & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Rejected as contra to the weight of the evidence. Rejected as contra to the weight of expert testimony. Rejected as contra to the weight of the evidence. Accepted in so far as it finds that Respondent's performance of medical procedures was within standard. Rejected as to the finding that overall care and practice was within standards. Accepted. COPIES FURNISHED: Larry G. McPherson, Jr., Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 David K. Oaks, Esquire The Professional Center 201 West Marion Avenue Suite 205, Box 3288 Punta Gorda, Florida 33950 Kenneth E. Easley General Counsel DPR 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dorothy Faircloth Executive Director Board of Medicine DPRB 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Respondent Albert Sneij is a licensed medical physician, having been issued license number ME 0034499. The current office address of the Respondent is 125 Fifth Street, Miami Beach, Florida. Dr. John V. Handwerker, a licensed physician was the Petitioner's sole witness. Dr. Handwerker, who has served as an Assistant Professor of Pharmacology at the University of Miami, was requested by the Department to examine the patient records obtained from the Respondent during the course of a Department investigation, evaluate whether the prescriptions contained in the patient records were appropriate or excessive and whether such prescriptions were adequately documented in the patients' clinical records. Dr. Handwerker evaluated the Department's investigative file and the Respondent's clinical records, involving eight patients: Charles Thomas Whitecup, John Marsden, Carole Rosen, Thomas T. Bellamy, John Barbosa, Rex Bridwell, Thomas Sestito and Margaret Lee Baker. Dr. Handwerker's testimony was based solely on his review of the records since none of the patients involved in this case were seen or examined by him. Charles Whitecup's records revealed that he suffered an injury four years prior to his being prescribed Dilaudid by the Respondent. The injury was a gunshot wound to his left leg on which an exploratory laparotomy was subsequently performed. At that time it was discovered that the gunshot had torn the femoral artery and inflicted substantial nerve plexus damage. Upon examination of Whitecup, the Respondent noted weakness and atrophy in the left extremity and numbness in the anterior portion of his leg. Additionally, Whitecup suffered from bursitis in the knee with pain in the knee and patellar ligament. The Respondent diagnosed chronic left leg pain due to femoral nerve plexus damage and asked Whitecup to bring his medical records to his next appointment which as scheduled in ten days. Based on this diagnosis, the Respondent prescribed 30 Dilaudid, 4 milligrams. Thereafter, Whitecup lost his original prescription and a replacement prescription was issued on April 7, 1982. This was the only prescription which was filled and the only prescription recorded in the Respondent's clinical records for this patient. The records of this patient, Petitioner's Exhibit 1(a) and the Respondent's examination justify and document prescribing the Dilaudid for this patient. Additionally, Whitecup specifically requested that the Respondent prescribe Dilaudid since this was the only medication which relieved his chronic pain. John Marsden was issued a single prescription by the Respondent for Dilaudid, 4 milligrams, on March 8, 1982. Although no clinical records exist to justify this prescription, the Respondent remembered Marsden as suffering from a long-standing chronic pain problem. During the time that the Marsden prescription was written, the Respondent was in the process of moving his office and the clinical records for this patient were probably lost during the move. The Respondent wrote two prescriptions for 20 and 25 Dilaudid, 4 milligrams, to Carol Rosen on February 9, 1982 and March 8, 1982, respectively. Both prescriptions were written when the Respondent was located in his old office and like Marsden, were probably among the records lost in the course of moving offices. The Respondent has no recollection of this particular patient. 2/ In response to the missing Marsden and Rosen records, the Respondent has instituted a new record keeping system and detailed records for all patients are now kept. The Respondent wrote six prescriptions for Thomas Bellamy between March and May of 1982, for 171 Dilaudid, 4 milligrams. Bellamy suffered from back and neck spasms for nine years prior to his initial examination by the Respondent. He was Bellamy had ever obtained for pain was when he was prescribed Dilaudid. During a follow-up examination, the Respondent noted that Bellamy's activities were limited and that his pain was primarily centered in the lower back in the area of L-5, S-1, with occasional radiation to the left leg. The Respondent wanted to take an x-ray but did not because Bellamy was unwilling to incur the cost. Although six prescriptions were written by the Respondent based on only two examinations of the patient, the clinical records for Bellamy, Petitioner's Exhibit 1(d), and the Respondent's examinations of the patient justify and document the prescribing of Dilaudid for this patient. The Respondent examined John Barbosa on May 5,1982, and diagnosed an injured disc between L4-5 during the week prior to the exam. This patient demonstrated spinal spasms during the exam with limited mobility. A single prescription of 36 tablets of Dilaudid, 4 milligrams, was written for the patient. This proscription was justified and documented by the clinical records, Petitioner's Exhibit 1(e) and the examination performed by the Respondent on the patient. In January, 1982, the Respondent first examined Rex Bridwell, a double knee amputee. Bridwell consulted the Respondent due to a vascular disease which caused grangrene and resulted in the amputations. Bridwell's legs had not healed and ulcerous lesions were visual at the amputation sites. Bridwell, who had been unsuccessfully treated for the previous six years, was understandably in a great deal of distress and pain as a result of his condition. The Respondent prescribed painkillers, antibiotics, vitamins and discussed with Bridwell alternative therapy including, prayer, hypnosis and meditation. Bridwell was subsequently examined by the Respondent on February 2, 1982 and March 4, 1982. The Respondent prescribed Tuinal on March 3, 1982, 30 tablets, 3 grams; and Dilaudid on March 23, 1982, 40 tablets, 4 milligrams and April 8, 1982, 24 tablets, 4 milligrams, for Bridwell. These drugs were prescribed for Bridwell's severe pain. Bridwell's clinical record, Petitioner's Exhibit 1(f), and the examinations performed by the Respondent demonstrate that these prescriptions were justified and documented. 3/ On January 26, 1982, the Respondent examined Thomas Sestito, a carpenter, who came to the Respondent complaining of severe back aches which resulted from his falling off a roof in 1979 and subsequently reinjuring his back. X-rays from Baptist Hospital confirmed that Sestito suffered a facture at L2. Sestito's pain was at L4 and LB and radiated into his right thigh. The Respondent diagnosed sciatica and prescribed a total of 70 Dilaudid, 4 milligrams, on January 27, 1982, March 7, 1982 and March 11, 1982 and 30 Tuinal, 200 milligrams, on February 10, 1982. 4/ The prescribing of Dilaudid in this case was justified and is documented by the patient's clinical record, Petitioner's Exhibit 1(g) and the Respondent's examination on January 26, 1982. Finally, the Administrative Complaint charges the Respondent with unlawfully prescribing Dilaudid on April 8, 9 and 14, 1982 to Lee Baker. The clinical record, Petitioner's Exhibit 1(h), indicates that two of these prescriptions were written to "Margaret Baker" and only the April 9, 1982, prescription was written to "Lee Baker." Although Margaret Baker's middle name is "Lee", insufficient testimony was introduced to establish that all three prescriptions were written for the same person. Additionally, the Petitioner did not attempt to amend the Administrative Complaint prior to hearing to conform the allegations contained in the Complaint to the evidence which was to be introduced at final hearing. Accordingly, only the prescription written on April 9, 1982, to Lee Baker is relevant to the allegations contained in Counts 29-32 of the Administrative Complaint. Due to the lack of certainty that "Margaret Lee Baker" and "Lee Baker" are the same person, it follows that the clinical record introduced at final hearing, Petitioner's Exhibit 1(h), might contain two sets of records or one set of incomplete records. Under such circumstances, the Petitioner has failed to prove through the introduction of the clinical record of Margaret Lee Baker, that the Respondent unjustifiably prescribed controlled drugs or kept inadequate records concerning Lee Baker.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Petitioner Board of Medical Examiners enter a Final Order finding the Respondent Sneij guilty of violating Counts 8 and 12 of the Administrative Complaint, not guilty of violating the remaining counts, and placing him on probation for three months subject to the condition that the Respondent demonstrate to the Board of Medical Examiners the adequacy of his present medical record keeping system prior to the end of this period. DONE and ORDERED this 29th day of September, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 29th day of September, 1983.
