The Issue The issues are whether Petitioner has sufficiently completed the requirements necessary to receive a license to practice orthotic fitting from the Board of Orthotists and Prosthetists and whether the Petitioner has violated section 468.809, Florida Statutes, by practicing orthotics without a license or registration.
Findings Of Fact 1. The two rules governing the requirements for licensure as on orthotic fitter in the state of Florida are found in section 469.803(5)(c), Florida Statutes (2010), and Florida Administrative Code Rule 64B14-4.110(1)(b). Section 468.803(5)(c) requires: (c) to be licensed as an orthotic fitter the applicant must pay a license fee not to exceed $500 and must have: A high school diploma or its equivalent; A minimum of 40 hours of training in orthotics education, as approved by the board; Two years of supervised experience in orthotics acquired after completion of the required education, as approved by the board; and Completed the mandatory courses. Petitioner requested information from the Board regarding the requirements for licensure and received a publication containing both chapter 468, Florida Statutes, Part XIV, and rule 64B14. He completed the prerequisite education required by section 468.803(5)(c), on June 22, 2009. However, Petitioner testified that he only reviewed the requirements identified in section 468.803(5)(c) and did not consider the definition of "experience" contained in rule 64B14-4.110(1), for applicants for licensure as an orthotic fitter. Florida Administrative Code Rule 64B14-4.110(1)(b) construes supervised "experience" to require an applicant to complete two years of experience in orthotics under the supervision of a Florida licensed orthotist. The two years of experience may only begin accruing after the applicant has successfully completed the requisite education courses. Petitioner applied for a license in orthotic fitting on November 22, 2010, only 17 months after the completion date of his educational courses. Assuming Petitioner started gaining experience immediately upon completion of his education courses, Petitioner was still seven months shy of the two years of experience required to obtain a license as an orthotic fitter. Petitioner testified at hearing regarding the orthotic experience gained prior to applying for licensure. According to his testimony, his experience consisted of activity more accurately described as assistance than experience. The experience described was limited to helping patients stand up, holding a measuring stick, assisting with paperwork, and explaining paperwork to the patient. Petitioner’s role involved little more than observing and occasionally assisting a licensed physical therapist. This is surely not what is meant by “experience in orthotics under the direct supervision of a Florida licensed orthotist,” as contemplated by rule 64B14- 4.110(1)(b). The assistance provided by Petitioner was performed under the supervision of a licensed physical therapist. While his actions, as described at hearing, did not meet the requirements for supervision specified by rule 64B14-9.110, they also did not rise to the level of unlicensed activity.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered by the Board of Orthotists and Prosthetists denying Petitioner’s application for licensure as an orthotic fitter. DONE AND ENTERED this 2nd day of August, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2011. COPIES FURNISHED: Frank Edward Maloney, Jr., Esquire Macclenny City Attorney 445 East Macclenny Avenue, Suite 1 Macclenny, Florida 32063-2217 Lee Ann Gustafson, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-6536 Bruce Deterding, Executive Director Board of Orthotists and Prosthetists Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701 Nicholas Romanello, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether Respondent committed an unlawful employment practice against Petitioner in violation of Section 760.10 et. seq., Florida Statutes, as set forth in Petitioner's Petition for Relief filed with the Florida Commission on Human Relations (FCHR) and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner is a female African-American who has completed medical school. On March 19, 1997, Petitioner completed an "Application for Residency," seeking to participate in Respondent's clinical anesthesiology residency program. That program is operated in conjunction with the Public Health Trust. Applicants selected to participate in the residency program become employees of Respondent. The terms and conditions of employment are subject to the policies of both Respondent and the Public Health Trust. Petitioner's application to participate in the residency program related that she had completed an internship at University of Maryland/Harbor Hospital (Harbor) and two years of anesthesiology residency at King/Drew University, Los Angles (King). Petitioner signed the application on March 19, 1997. On April 30, 1997, Petitioner submitted an "Application for Graduate Medical Education at the Jackson Memorial Medical Center" that required her to "list chronologically your activities from time of graduation from Medical School to present. Specify type of post graduate training if any." Petitioner listed the internship at Harbor and the residency at King. She signed the application under the declaration: "I hereby declare that I have examined this application; and to the best of my knowledge and belief, it is true, correct, and complete." Petitioner was accepted into Respondent's clinical anesthesiology residency program based, in part, on the information reflected in the foregoing applications. That acceptance created an employee/employer relationship between Petitioner and Respondent. On July 17, 1997, Petitioner submitted a completed "Personnel Form" to Respondent. The Personnel Form required her to disclose all her activities since her completion of medical school. On that form Petitioner listed her previous internship at Harbor and her previous residency training at King. She verified it was correct to the best of her knowledge and signed the form. At the times pertinent to this proceeding, Dr. Brian Craythorne was a Professor of Medicine at the University of Miami and the Chairman of Respondent's Department of Anesthesiology. Dr. Craythorne had supervisory responsibility for Petitioner and was instrumental in selecting her to participate in the residency program. In April 1998, Dr. Craythorne received routine information from the American Board of Anesthesiology (ABA) setting forth the number of hours of training from other anesthesiology residency programs for which each resident participating in Respondent's residency program had received credit. The information from the ABA also set forth the number of hours of training for which each resident had received no credit. From that information, Dr. Craythorne learned that Petitioner had a total of 39 hours of residency training in anesthesiology from other programs for which she had received no credit. Three of the 39 hours of training for which she had no training were at King, which was reflected on her application and related paperwork. The training at King is not an issue in this proceeding. The additional 36 hours of residency training for which she received no credit was from Howard Hospital. 1/ The program at Howard, which was equivalent to a three-year program, was not reflected on any application or related document Petitioner submitted to Respondent before April 1998. Petitioner's failure to disclose her participation in the residency program at Howard was intentional. Petitioner's failure to disclose her participation in the residency program at Howard violated the clear policies of both Respondent and the Public Health Trust that require applications and related documents to be truthful, correct, and complete. Dr. Craythorne confronted Petitioner about the foregoing omissions in her applications and associated paperwork. In response, Petitioner submitted a letter dated May 27, 1998, in which she tried to explain why she did not obtain credit at Howard and why she had not divulged that information to Respondent. Petitioner asserted that she had sued Howard and had subsequently settled the litigation with instructions from her attorney that she could not discuss the litigation. 2/ Petitioner's letter of May 27, 1998, was not satisfactory to Dr. Craythorne. On June 3, 1998, Dr. Craythorne issued to Petitioner a "Disciplinary Action Report" (DAR) advising he was recommending that Petitioner be dismissed from the residency program (thereby terminating her employment with Respondent). The grounds for the action were her violation of Respondent's policies by making a false statement or statements on her application for employment and related documents and her violation of Public Health Trust Policy #305 pertaining to falsifying records or any other record of the Trust. Referencing Respondent's Department of Anesthesiology, the DAR also contained the following: Our department's recruiting and hiring practices . . . includes a policy/practice not to accept residents [sic] who have had more than one prior anesthesia residency experience for the clinical anesthesia years 1 through 3. [3/]] On June 29, 1998, Dr. Craythorne wrote a letter to Petitioner terminating her employment on the grounds set forth in the DAR. The termination letter advised Petitioner that she could request the Senior Vice President for Medical Affairs (Dr. Gerard A. Kaiser) to review the decision to terminate her participation. The letter also advised Petitioner that "[u]nless the Senior Vice President rescinds the proposed action, it will become effective following his review and decision." On July 21, 1998, Dr. Kaiser advised Petitioner that he had reviewed the facts surrounding her termination and agreed with the termination decision. Consistent with her rights pursuant to the applicable collective bargaining agreement, Petitioner requested and received a hearing before the Peer Review Committee, which was composed of other participants in the anesthesiology residency program. On December 1, 1998, the Peer Review Committee issued its report upholding Petitioner's termination for the reasons cited by Dr. Craythorne. On December 23, 1998, Ira C. Clark, president of the Public Health Trust, advised Petitioner that he had upheld her dismissal based on his review of the Peer Review Committee's findings and recommendation. Petitioner thereafter filed a grievance pursuant to her collective bargaining rights. On October 21, 1999, an evidentiary hearing was conducted before an arbitrator. On November 1, 1999, the arbitrator entered his Opinion and Award upholding Petitioner's termination of employment. Petitioner thereafter filed a complaint of discrimination with the FCHR on or about March 27, 2000. The gravamen of the complaint was that Respondent fired her in retaliation for her complaint to Dr. Craythorne that another resident had made a derogatory racial comment towards her. On December 10, 2001, the FCHR entered a determination of "no cause," determining that there was no cause to believe that an unlawful employment practice had occurred. On January 14, 2002, Petitioner filed a Petition for Relief from an unlawful employment practice with the FCHR. The Petition alleged the following facts in support of her claim of discrimination: On April 1, 1998, a racial remark was made to me by Dr. Kirsten O'Neal, which was, "we know how lazy you Blacks are." I reported it (the statement) to Dr. Craythorne and Dr. Brindle, as well as in writing (copies are in my file). Dr. Craythorne asked me if I had any witnesses, I said yes. The following month they decided to investigate my application, and terminated me on July 1998 (sic). The Petition described the disputed issues of fact as follows: I was terminated because I did not put on my application that I had worked for Howard Hospital in Washington, D. C. They stated the reason I was terminated is because the ABA (American Board of Anesthesiology) requires that you only attend two programs if you have received credit. I did not receive any credit. Please see the enclosed pamphlet from the ABA at page 9. The Petition set forth the following ultimate facts entitling Petitioner to relief: When JMH terminated me, it was because I made a claim of racial discrimination, which I reported prior to investigation of my application. Had I not complained of racial remarks that was made to me by the above Dr. Kirsten O'Neal, it would not have come up about my application. The evidence established that Petitioner complained to Dr. Craythorne that Dr. O'Neal had made the derogatory, racial remark set forth in the Petition. 4/ There was no evidence to establish a link between the complaint made by Petitioner to Dr. Craythorne pertaining to Dr. O'Neal and the decision to terminate her participation in the residency program. Respondent established that Petitioner was terminated because she failed to adhere to Respondent's and the Public Health Trust's clear policies requiring applications and other employment documents to be truthful, correct, and complete.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 16th day of August, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 16th day of August, 2002.
Findings Of Fact MCH was constructed circa 1973 as an acute care hospital and before 1980 had 126 medical-surgical beds authorized including eight intensive care beds. MCH is a for-profit hospital owned by Hospital Corporation of America. It is financially able to fund the proposed addition. In 1980 it received a certificate of need (CON) to add 64 medical-surgical beds for a total bed capacity of 190 medical-surgical beds. These beds came on line in January 1982. MCH here proposes to add a 54-bed unit for oncology patients; to add six operating rooms to use primarily for eye, ear, nose and throat surgical procedures on an outpatient basis; and a new eight-bed surgical intensive care unit located on the first floor adjacent to the existing surgery department. Currently, the hospital has two oncologists on staff who use a 16-bed unit dedicated to the treatment of cancer. Space exists for the additional operating room so the net result is an application for an additional 62 beds. The application also included expansion of general stores and maintenance and the addition of a parking structure, which were granted, leaving only the issue of need for the 62 additional beds requested at a cost of $7 million. When constructed MCH had an eight-bed ICU primarily for coronary care patients located on the second floor of the hospital in the opposite wing from the surgery department on the first floor. It has added a four-bed ICU on the fourth floor by converting two semiprivate medical-surgical rooms. The ratio of ICU beds to total beds in 1973 was 8:126 which is nearly identical to the current ratio of 12:190. The evidence was unrebutted that the ICU at MCH is usually full, that on occasion patients have to wait in the emergency room until a less ill patient can be moved from a bed in ICU, and that the more ICU beds are available the more they will be used. This use was attributed to the doctors desiring their patients to be in an ICU and to testimony that current surgical procedures are more sophisticated than formerly and a greater need exists today for a surgery patient to go to an ICU than existed 15 years ago. In its application for a CON (Exhibit 18) MCH's estimated charge for a medical-surgical bed is $100-150 per day and its estimated charge for ICU beds and SICU beds is $350 per day. The primary service area for MCH is Marion County. Petitioner submitted evidence that nearly 20 percent of the cancer patients diagnosed in Marion County in 1981 came from the surrounding counties of Citrus, Lake, Sumter, and Levy. Accordingly, MCH contends that its primary service area for oncology patients should include these counties. Evidence was also submitted that MCH has been certified by medical associations as an approved cancer treatment hospital; that oncology service is a service generally provided in regional hospitals which provide Level III medical treatment; and, therefore, MCH should be considered on a different scale than Level II services. No evidence was presented that any health systems plan ever considered MCH as a regional cancer hospital or established any bed need for cancer patients at MCH. The evidence was also unrebutted that cancer patients at MCH are primarily treated by chemotherapy; that the drugs used in the treatment are extremely toxic, some have a short life span after being mixed and must be used almost immediately; that having a mini-pharmacy in the cancer ward is highly desirable; that special training of nurses is required to safely administer these drugs to patients; that patients develop nausea, ulcers in the mouth and throat, and present special feeding problems, and because of these special feeding problems it is advantageous to have some facilities in the cancer ward to prepare food at odd hours for patients; that cancer is a "personal" disease, patients desire more privacy, and should have private rooms; that an area away from the patient's room where the patient can visit with his or her family and the family can consult with the doctor in some privacy is desirable; that some newer drugs require hospitalization of the patient for treatment with these drugs, but the hospital stay is shorter and the drugs may be used over longer periods of time; and that the patient needs the security that comes from developing a feeling of trust by the patient of the nurses and doctors who are administering to his needs. MCH has no radiation treatment facilities in the hospital. However, the hospital staff has access to a Linear Accelerator which is located in a private physician's office on MCH's campus. Several witnesses testified to the need for additional beds for cancer patients at MCH; that patients have had to wait several days for a vacant bed; some oncology patients have had to be placed in other wards at MCH; and that special treatment and special training for nurses are required for oncology patients. Marion Regional Medical Center (MRMC) is a nonprofit hospital owned by the Marion County Hospital District, a public body established by statutes with taxing powers in Marion County. MRMC is currently expanding its facilities by 80 beds to the authorized 314-bed hospital pursuant to a CON approved in 1981. The $23 million for that project was financed by revenue bonds issued by Marion County Hospital District. Preliminary bids indicate the original project will be under the estimated cost resulting in a $2-3 million savings. If the additional beds here requested are approved and the construction associated therewith can be accomplished concurrently with the present construction, a saving of nearly $1 million can be obtained. MRMC is the only full service hospital in Marion County and provides medical, surgical, obstetrical, pediatric, psychiatric, intensive care, coronary care, and neurological/neurosurgical services. It has the third most active Emergency Room in the state and receives approximately 45 percent of its admissions through this service. MRMC's proposed project calls for the construction of a sixth floor on the hospital, construction of 66 inpatient beds, and the conversion of a 20-bed pediatric unit for use as a labor and delivery suite, a net gain of 46 beds. As initially proposed, this would provide for eight additional pediatric beds, four pediatric intensive care beds, and 34 medical-surgical beds to be used as a pulmonary medicine unit. Before the hearing the request for additional pediatric beds was withdrawn, leaving a request for 34 additional hospital beds and four pediatric intensive care beds, a total of 38 medical-surgical beds, at a cost of $2.8 million. It was stipulated that both MCH and MRMC provide an acceptable quality of care and operate efficiently. The application satisfied the criteria in Section 381.494(6)(c) with the possible exception of need, and need is the only issue in dispute in these proceedings. Both applicants submitted evidence that they accept all patients regardless of their ability to pay; however, MCH is a private for-profit hospital whose bad debt and charity care amounts to two percent of its gross revenues. MRMC's patient load is four percent indigent and bad debts, and charity care amounts to 12 percent of its gross revenues. Exhibit 18 shows MCH patient utilization to be 61 percent Medicare and one percent Medicaid, and MRMC patient utilization to be 51 percent Medicare and five percent Medicaid, in 1981. There is currently "applicable district plan" or "annual implementation" as provided for in Section 381.494(6)(c)1, Florida Statutes (1982). The implementation of this statute has been stayed by rule challenges. The North Central Florida Health Planning Council, Inc. (NCFHPC), was the Health Systems Agency (HSA) for what was formerly known as Health Service Region II which included only Marion County as a district sub-area. Prior to the July 1, 1982, amendment of Florida's CON law, the HSA reviewed applications and made recommendations with written findings of fact to DHRS. The 1982 CON law eliminated HSA, accordingly the NCFHPC no longer exists. The former HSA recommended approval of the applications of both MCH and MRMC; however, the staff of the HSA recommended disapproval of both applications. For the determination of need in these proceedings, a planning horizon of five years is acceptable and was used by all parties. Thus, the need for the requested CON is assessed for the year 1988. At this time the population of Marion County is forecast to be 165,880. The percentage of persons 65 and older in Marion County is increasing in proportion to the remainder of Marion County's population, and this increase will continue through 1988. This "aging" of the population is occurring throughout the United States as people live longer and demographics change with differing birth rates at differing periods. No evidence was submitted that the percentage of people over 65 is greater in Marion County than in other parts of Florida. MCH has 190 authorized medical-surgical beds and MRMC has 244 authorized medical-surgical beds, for a total of 434 such beds authorized in Marion County in two hospitals across the street from each other in Ocala, Florida. With the 1982 amendment to the CON statute the HSA in Marion County ceased to exist and has been replaced by a local health council. Rule challenges have stayed the promulgation of a comprehensive state health plan and the only Health Systems Plan in being for Marion County is the revised 1983 Health Systems Plan (HSP). This plan was approved by the HSA for Marion County in June of 1982 and contains goals, objectives and standards for planning for the health services required in Marion County. Standard 1-1 provides the need for medical-surgical beds within each Level II planning area (Marion County) should be based on the actual 1980 medical-surgical bed need per 1,000 population in this area. Standard 2-1 provides no additional beds should be added to a community's total bed supply until the occupancy rate of medical- surgical beds in the community exceeds 85 percent if more than 200 such beds are available in the community. The generally accepted standard for occupancy rate above which more beds may be needed is 80 percent. However, where beds are concentrated in one area, which is the case in Marion County where 434 medical- surgical beds are authorized, 85 percent occupancy leaves a reasonable surplus of beds to cover most emergencies or unusual situations that would cause the bed availability to be exceeded. The need for medical-surgical beds per 1,000 population (use rate) in Marion County in 1980 was 2.41. The HSP has a goal of 3.5 beds per 1,000 population and an objective of 4.0 beds per 1,000 population by 1987 in Region II. Applying the 1980 use rate to the 1988 forecast population of Marion County results in a need for 400 medical-surgical beds. The Health Systems Plan update for Marion County defines medical- surgical beds as all hospital beds which are not reserved solely for the use of pediatric, obstetrics, or psychiatric patients. At the time the revised Health Systems Plan for Marion County was promulgated, the two hospitals, MRMC and MCH, had been authorized an additional 80 and 65 beds, respectively, and these beds were being placed in service. By prescribing a use rate for 1980 as the standard to be used in considering applications for additional medical-surgical beds in 1983 and for a year or two thereafter, it would be reasonable to conclude the HSA expected the use rate for the years 1981 and 1982 to be influenced by the addition of the recently authorized 144 beds and to not accurately reflect a reliable use rate for planning purposes. MRMC and MCH presented expert witnesses who, by using different modalities, containing different assumptions, arrived at a need for additional beds in Marion County in 1988 ranging from 97 to 200. Most of these modalities used an occupancy rate of 3.5 beds per 1,000 population and 80 percent utilization of beds. All assume increasing usage of medical-surgical beds by the increasing and aging population. In their application MRMC and MCH planned to finance these projects with rate increases of 11 percent per year (to keep even with inflation) and a continuing increase in the number of patients handled at these higher rates. While inflation may again be up to 11 percent or higher, it is generally accepted today that the current inflation rate is five percent or less. More than 50 percent of both MRMC and MCH patients are presently covered by Medicare, which pays 80 percent of the charges generated by these patients. To assume that this situation will not only continue in the face of current federal deficits, but grow to cover the increased use of these facilities predicted in the assumptions used to show increased bed need for 1988, is not necessarily a valid assumption. Evidence was presented that the number of doctors in Marion County has doubled in the last five years. The ratio of doctors to the population of Marion County for 1977-78 and 1982-83 was not presented nor was the percent increase in the number of doctors in the United States over the past five years. Without some basis for comparison, the fact that the number of doctors in a particular community doubled over a five-year period has no relevancy.
The Issue The issue for consideration in this case is whether Respondent's license as a physician in Florida should be disciplined because of the matters alleged in the Administrative Complaint.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Board of Medicine, through the Agency For Health Care Administration, and formerly the Department of Business and Professional Regulation, has been the state agency in Florida responsible for the regulation of the practice of medicine and the licensing of physicians in this state. Respondent has been a physician licensed in Florida under license number ME 003824. Starting on January 12, 1988 and continuing thereafter until on or about March 16, 1988, Respondent treated Patient #1 for a condition known as Dupuytren's Contracture of the left hand. This conditions results in the thickening of scar tissues and contracture of fibrous bands in the palm and fingers which pulls the fingers into the palm and constricts their ability to flex or straighten out. Patient #1 had suffered from this condition since 1982. In 1984, a surgeon in New Jersey performed Dupuytren's Contracture release surgery on the patient's right hand, but the results were not altogether satisfactory. Respondent first saw Patient #1 on January 12, 1988. At this initial visit, Respondent discussed the implications of the proposed surgical procedure and advised the patient of the possible adverse consequences thereof. He noted that because the patient had delayed seeking treatment for the left hand, there was a strong possibility of complications as a result of surgery which could involve nerve damage and infection in addition to a possibility of vascular damage and necrosis of the tissue of the hand. On February 10, 1988, Respondent performed a Dupuytren's Contracture release on the patient's left hand at the Gulf Coast Orthopedic Center, (GCOC). This surgery is a complicated, delicate and difficult procedure which in the instant case, was made even more difficult by the extent of the existing contracture of the patient's hand. After the completion of the surgery, Respondent placed Patient #1 on Keflex, an antibiotic, and also prescribed Darvocet for pain. Respondent saw Patient #1 again on February 11, 1988. At this time, the patient was complaining of pain in the hand and of the tightness of the bandage. Respondent examined the wound at this time, cleaned it, placed a plastic platform splint on the hand and re-bandaged it. The patient was also prescribed Percodan for pain and advised to continue the Keflex at a 1,500 mg/day dosage. Patient #1 returned to Respondent again on February 12, 1988, still complaining of pain and that the bandage was too tight. After again examining the hand, Respondent re-bandaged it, placing gauze between the patient's fingers and the splint. He also gave the patient another prescription for Percodan for the pain. On February 17, 1988, the patient again came to the Respondent's office for his third postoperative checkup. When Respondent removed the bandage, he noticed a small greenish area on the palm which was exuding what appeared to be white pus. Respondent thoroughly cleaned the wound by placing the hand in a whirlpool bath of water and Betadine solution for approximately 45 minutes. He did not culture the green area or the white exudation. When he released the patient that day, however, he increased the Keflex dosage to 2,000 mg/day but refused to give him a prescription for additional Percodan for the pain. Instead, he told him to take extra strength Tylenol. He also told the patient to keep the hand elevated but did not suggest the patient call in the event of pain. Respondent did not see Patient #1 again until February 24, 1988 even though the pain had increased during that period. The patient, however, did not call the Respondent to complain, believing the increase in pain was the result of the removal of the prescription for Percodan and the substitution of a lesser strength substance, Tylenol, therefor. The patient assumed, from the Respondent's prior comments, that the pain was normal and to be expected. When Respondent saw Patient #1's hand again on February 24, 1988, he became excited because it appeared there was infection in the left palm which had spread to the PIP joint of the middle finger at which point there was some necrosis. Respondent appeared upset because the Patient had not called him when the pain continued or increased. Patient #1's wife had asked that the patient do so, but the patient decided to wait until the next scheduled appointment on February 24, 1988. At this time, Respondent removed the sutures from the patient's hand and irrigated the wound with a mixture of saline solution and an antibiotic, Kepsol. A culture was also taken at this time. Since Respondent did not have hospital admitting privileges in the area, he arranged through Dr. Alea, an associate in his clinic who did have such privileges, to have Patient #1 admitted to Bayonet Point Hospital for treatment of the infection. The treating physician there was Dr. K. Sundaresh, an infectious disease specialist. The admission was on February 24, 1988. Dr. Sundaresh placed Patient #1 on prolonged antibiotic treatment, obtained a bone scan to document any infection, and directed debridement, incision and drainage of the wound. The bone scan report indicated that Patient #1 "most likely" had developed osteomyelitis, a bone infection, at the base of the middle finger on the left hand. X-rays taken around the same time, on March 1, 1988, revealed findings consistent with osteomyelitis. Following the hospital admission, Respondent departed for Arizona for three days to attend a previously scheduled medical seminar, returning on February 27, 1988. While he was gone, however, Respondent spoke daily with Patient #1 by telephone and consulted with the physicians who were treating him. Dr. Alea suggested that Patient #1 be examined by another orthopedic physician, Dr. Moss, but when Dr. Moss came to see Patient #1 in the hospital, he was told the patient had already seen Respondent. The consult report prepared by Dr. Moss reflects no consult was had because the patient "wants treatment as now arranged under Dr. Bonati." Records of GCOC indicate that on March 1, 1988, Respondent spoke with patient #1's daughter by telephone indicating that if the patient did not come to the clinic that day, he would be released from Respondent's care. In fact, the patient did go to see Respondent on March 1 and 2, 1988 on pass from the hospital, but claims he did not refuse treatment by Dr. Moss. When Respondent saw Patient #1 in his office on March 1, 1988, after noticing a greenish material on the patient's left palm which he thought might be pseudomonas, he elected to continue the antibiotic treatment that was initiated in the hospital. When the patient was released from the hospital on March 4, 1988, the wound was healing well. Dr. Sundaresh arranged for the patient to continue the intravenous antibiotic treatments through a home nursing services. The final diagnosis at the time of discharge was osteomeleyitis of the middle finger of the PIP joint on the left hand due to pseudomonas aeruginosa infection. Respondent saw Patient #1 in his office on March 7, 9, and 16, 1988, after the patient's discharge from the hospital. The patient was scheduled for another visit on March 22, 1988, but cancelled that appointment and also elected to discontinue the physical therapy Respondent had prescribed for him at GCOC. The hospital records show that while there, Patient #1 received daily physical therapy treatments consisting of whirlpool treatments to the hand and sterile dressings, starting on his admission on February 24, 1988, but no range of motion exercises. The physical therapy prescribed at GCOC by Respondent starting on March 8, 1988 included range of motion exercises which he continued until March 15, 1988. At the time of the last visit, on March 16, 1988, Respondent noted that the patient's wounds were healing well, but there was some limited range of motion. One of Petitioner's experts, Dr. Nadler, a board certified orthopedic surgeon with over 17 years experience, who is in practice with Dr. Angelides, to whom he refers all his hand surgery cases, opined that the standard of care for orthopedic surgery such as performed here by Respondent would be for the surgeon to have the ability to admit and follow the patient in a hospital if complications should arise. At very least, the surgeon should have the ability to make arrangements for another orthopedic surgeon to follow the patient in his absence. According to Dr. Nadler, it is not at all unusual for infection to occur in Dupuytren's Contracture release surgery. He concluded that Respondent fell below the standard of care when he performed a complicated surgical procedure on Patient #1 without having the personal ability to admit his patient to a hospital or to follow his patient's progress in the hospital in the event complications, such as an infection, should occur. He also concluded that Respondent's failure to have another orthopedic surgeon available to follow the patient while in the hospital was below standards as well. This opinion was shared by Petitioner's other expert, Dr. Visconti, a board certified orthopedic surgeon who, by his own admission, however, is not a hand surgeon specialist. Respondent's expert, Dr. Angelides, a board certified orthopedic surgeon who specializes exclusively in surgery to the hand and upper extremity, indicated that the presence of a green wound which exudes pus is consistent with infection. The standard of care for treating such an infection consists of cleaning the wound, obtaining cultures of the suspected infection, and seeing the patient again within a day or two for follow-up examination. In Angelides' opinion, Respondent's leaving the bandage on Patient #1's hand from the time of surgery on February 17 through February 24, without taking it off to check on the course of infection was not the way he would have handled the situation. However, he did not go so far as to state the Respondent's failure to do so was inappropriate, and he could find no impropriety in the way Respondent managed this case. Recognizing that the case presented here was about as severe an example of Dupuytren's Contracture as can be seen, Dr. Angiledes opined that the result achieved by Respondent was quite good considering the severity of the problem. He was not put off by the development of necrosis here, accepting that as a common complication in cases of this nature. He was satisfied by Respondent's calling in an infectious disease specialist and with the continuation of antibiotics administration after discharge through home health care. In his opinion, the surgery was appropriate and the ensuing complications common. The admission of the patient through an intermediary was not, to him, inappropriate so long as, as here, the patient continued to be seen by an infectious disease specialist. In substance, Dr. Angelides could see no problems with this case that were not properly handled and nothing that could have been done that was not done.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case finding Respondent not guilty of the offenses alleged in the Administrative Complaint and ordering it dismissed. RECOMMENDED this 22nd day of August, 1994, 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 22nd day of August, 1994. APPENDIX TO RECOMMENDED ORDER 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. - 4. Accepted and incorporated herein. 5. - 7. Accepted and incorporated herein. 8. - 10. Accepted and incorporated herein. 11. - 13. Accepted and incorporated herein. - 19. Accepted and incorporated herein. Accepted and incorporated herein. - 23. Accepted and incorporated herein. 24. & 25. Accepted and incorporated herein. 26. & 27. Accepted and incorporated herein. 28. & 29. Accepted and incorporated herein. 30. & 31. Accepted. 32. - 35. Accepted and incorporated herein. 36. - 38. Accepted and incorporated herein. 39. & 40. Accepted and incorporated herein. 41. & 42. Accepted. 43. Accepted and incorporated herein. 44. & 45. No more than recitations of evidence. & 47. Accepted and incorporated herein. Rejected as a classification of Respondent's treatment as "inappropriate." The deposition cited as authority for that comment does not support it. However, the action described and the time frame in question are accurately noted. Accepted. Accepted as a recitation of the witness' testimony. Rejected as to the description "well supported." & 52. Accepted as restatements of testimony. Accepted. See "50" above. Rejected as not supported by clear and convincing evidence. FOR THE RESPONDENT: Accepted and incorporated herein. Accepted. & 4. Accepted and incorporated herein. - 9. Accepted and incorporated herein. Accepted and incorporated herein. Not an evidentiary Finding of Fact. - 14. Accepted as restatements of testimony. 15. - 18. Accepted as restatements of testimony. 19. & 20. Accepted as restatements of testimony. 21A. - O. Not proper Findings of Fact. These are more Proposed Conclusions of Law which are drawn by the Hearing Officer independently in that portion of the Recommended Order. COPIES FURNISHED: Hugh R. Brown, Esquire Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Steven A. Rothenberg, Esquire Agency for Health Care Administration 9325 Bay Plaza Boulevard Tampa, Florida 33610 Paul B. Johnson, Esquire Johnson & Johnson, Post Office Box 3416 Tampa, Florida 33601 Sam Power Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Harold D. Lewis, Esquire Agency for Health care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue This proceeding was initiated when HRS proposed to deny San Marco's application for Certificate of Need No. 3304 for an ambulatory surgical center in Jacksonville, Duval County, Florida. San Marco filed a timely petition for formal hearing. Initially four intervenors were involved: Baptist, Memorial, Surgical Services of Jacksonville, Inc. and Medivision of Duval County, Inc. Surgical Services filed its Notice of Voluntary Dismissal on March 7, 1985, and Medivision withdrew on October 28, 1985. At the hearing, San Marco offered evidence through eight witnesses and 28 exhibits; HRS presented one witness and one exhibit; and the two intervenors presented nine witnesses and 26 exhibits. Certain exhibits, by stipulation of the parties, were entered as "Hearing Officer Exhibits." Those four exhibits included the state agency action plan, the petitioner's application for CON, a three-volume state health plan and the District IV health plan The primary issue is whether San Marco is entitled to Certificate of Need No. 3304 for an ambulatory surgical center which will include two operating rooms. During the course of the proceeding several ancillary issues developed; those issues are summarized here and are addressed in the body of this recommended order: In determining need for a free-standing ambulatory surgery center, is it appropriate to consider evidence of out- patient surgical services provided by hospitals? (Petitioner's Motion in Limine, T-9). Is the project proposed by San Marco an "ambulatory surgical center" as defined in subsection 381.493(3)(a), Florida Statutes? (Respondent's Motion to Dismiss, T-500). Should the intervenors, Baptist and Memorial be dismissed for failure to establish standing? (Petitioner's Motion for directed verdict, T-1182). The briefs, memoranda and proposed orders of the parties have been carefully considered in the preparation of this Recommended Order. A specific ruling on each proposed finding of fact is included in the Appendix attached hereto. On March 25, 1986, Petitioner filed a Motion for Restricted Reopening of Record. Basis for the motion is Medivision's withdrawal of its application for certificate of need. The motion is denied.
Findings Of Fact The Parties San Marco is a limited partnership. The owners are Stuart Yachnowitz, individual general partner and sole limited partner; Surgi-Centers of America, Inc., (SCA), a Florida corporation, corporate general partner; and Jacksonville Women's Health Organization, Inc., a Florida corporation, (JWHO), corporate general partner. The sole shareholders of SCA are Stuart Yachnowitz, his father, Joseph Yachnowitz and Susan Hill. The owners of JWHO are Joseph and Stuart Yachnowtiz. (T-47, 48, CON application pp. 20-23). San Marco intends to include local physicians in the ownership of the surgicenter. (CON application p. 40) The surgieenter will be managed by Y and S Management Corporation, the company now providing management services to JWHO. Y and S Management Corporation is owned by Joseph and Stuart Yachnowitz. Including JWHO, it manages eight licensed abortion clinics throughout the country as well as two free-standing ambulatory surgery centers (FSACs) which primarily perform abortions. Susan Hill, the chief operating officer for Y and S for the past ten years, prepared the CON application for the surgicenter. (T-47-49, 108-111). The building at 1561 San Marco Boulevard in Jacksonville, currently occupied by JWHO for its licensed outpatient abortion clinic, will be renovated and occupied by San Marco. The facility will be expanded from approximately 3000 square feet to 4700 square feet. Two operating rooms (ORs) will be added along with ancillary facilities necessary for licensure as an ambulatory surgical center. (Petitioner's Exhibit #1, CON application p. 4, T-52, 54, 55). Abortions will continue to be performed at the facility at an estimated rate of 168 procedures a month. (Petitioner's Exhibit #2, T-102, 103). Other surgical procedures will be added in the categories of gynecology, general surgery, and plastic surgery at the projected rate of 15 per month for the first month of operation to 90 per month after a little over a year's operation. The 90 additional procedures per month is anticipated to continue through the second year of operation. (Petitioner's Exhibit #2, CON application p. 40, T- 102, 103). San Marco anticipates drawing some patients for the additional procedures from its existing caseload and utilizing some physicians who currently practice at the abortion center. (T-62, 63, 101, 102, 247). Memorial is a not-for-profit acute care hospital, located in Duval County in close proximity to the San Marco facility. Since May 1985, Memorial has been providing outpatient surgery services in a dedicated outpatient facility adjacent to the acute care hospital. The same day surgery" facility contains two laser rooms and four operating rooms. (T-854, 913, 914). Baptist is a not-for-profit acute care general hospital also located within close proximity to the San Marco facility. It currently provides outpatient surgical services in twelve ORs and 3 cystoscopy rooms in its main facility. Sometime around August 1987, its new adjacent 17-story structure, The Pavillion, is anticipated to open. The fourth floor of that facility will be dedicated to outpatient surgery and will include four operating rooms and two cystoscopy rooms. (T-939, 984, 987, 988, 1045, 1047). HRS reviewed San Marco's application and determined that it should be denied on the following basis: "There appears to be an insufficient projected number of outpatient procedures to allow this facility to be viable." (State Agency Action Report, September 6, 1984). The State and Local Health Plans The 1985-1987 State Health Plan does not directly address the need for additional ambulatory surgical centers. It adopts as an objective that ". . . By 1989, 30 percent of all surgical operations should be performed on an outpatient basis." (Vol. II p. 81). It addresses ambulatory surgical centers as an alternative delivery system which lowers costs by substituting less costly services. (Vol. II p. 76). And, it outlines a brief history of the increase of ambulatory surgical centers in Florida during the decade of the 1980s. It acknowledges, "As in the case of hospitals, saturation of the marketplace for outpatient surgery has caused new entrants into the field to be more highly specialized in order to attract sufficient business. (Vol. II p. 27). HRS District IV includes Duval, Nassau, Baker, Clay, St. Johns, Flagler and Volusia counties. The 1985 District IV Local Health Plan adopts sub-area boundaries in planning for certain specialized services, including ambulatory surgery. Sub-area A is comprised of Baker, Nassau, Duval, Clay and St. Johns counties. (p. 112). In contrast to the State Health Plan, it makes specific recommendations: that sub-area boundaries should be used for planning purposes; that no additional units should be approved prior to the adoption of state rules; and that no ambulatory surgery units should be added to the district through 1986, when the agency will review the matter again. (p. 20). Utilizing 1983 data to base its projections and the need methodology of a challenged draft state rule, it concludes that Sub-area A has a surplus of 14 ambulatory surgical units. (p 143). Existing Like Facilities and Other Alternatives to the Proposed Service. Ambulatory surgery is typically performed in three types of facilities: general hospitals which mix inpatient and outpatient surgery in main operating rooms; hospitals which maintain separate "dedicated" outpatient operating rooms, sometimes even in adjacent buildings; and free-standing surgical centers which are unassociated physically or administratively with a hospital. (T. 387-390). Testimony in this proceeding was virtually unanimous as to the distinct disadvantages of serving surgical outpatients in a non-dedicated operating room setting. The mingling of' less ill or well outpatients with seriously ill inpatients increases the opportunity for contagion, heightens patient anxiety, deprives patients of access to their families, presents scheduling problems (including the bumping of outpatients in emergencies), and generally increases the cost of the service to the outpatient consumer. (T-386, 388-392, 1125- 1128). Both Baptist and Memorial have recognized the need for separate, dedicated operating rooms. The comparison of hospital-based dedicated ambulatory surgery rooms with free-standing ambulatory surgery rooms stirs somewhat more controversy. There are advantages and disadvantages to both. A hospital-based unit may or may not be more accessible to the physicians. While doctor's offices are often near hospitals, parking still is a problem. While some patients might prefer to avoid a hospital setting altogether, some are comforted by the proximity in the event of an emergency or decision to recuperate overnight. While costs are generally lower in a free-standing facility, there may be an advantage to having the expensive equipment immediately available in some cases (T-241-246, 392, 758-760,996, 1000-1001). If comparing non-dedicated ORs to free-standing ambulatory centers is comparing apples to oranges, then comparing hospital-based ambulatory centers to free-standing ambulatory centers is comparing red apples to green apples. Personal preferences often dictate the choice, but either one will make a pie. There exists no adopted rule governing methodology for determining need for ambulatory surgery centers. In this proceeding, each party presented its own methodology through an expert witness. Those methodologies are described as follows: Petitioner's Need Methodology Howard Fagin, PhD, was qualified as an expert in Health Planning and Health Economics without objection. (T-377) In his opinion there is a need for additional ambulatory surgery rooms. His opinion is based on a four-step process which includes: Analysis of the service area and population within that service area; Review of existing facilities providing comparable or related services; Examination of the utilization of those services within the existing facilities; and Analysis of the need for new health care facilities based upon population and need for new services in the area. 393, 394) Dr. Fagin identified Duval County as the primary service area, and Nassau, Baker, Clay and St. Johns counties as the secondary service area. The surrounding counties depend on Duval for their medical care in many cases. Together, the primary and secondary service areas comprise HRS District IV, Sub- area A (Local Health Plan, p. 112). Population figures are taken from those compiled and projected by the Executive Office of the Governor. (T.-396) For several reasons it is difficult to obtain data on out-patient surgical procedures in Florida. Out-patient surgery is a relatively new phenomenon; some hospitals do not separate in-patient from out-patient procedures in reporting; other hospitals count cases rather than procedures. (T-398) Dr. Fagin felt comfortable with data obtained from the state and from the N. E. Florida Health Planning Council, as adjusted with the use of data obtained from Baptist and Memorial for 1982, 1983, and 1984. (Petitioner's exhibits #11, 12 and 13) For 1984, he figured 31.1 percent of the surgical cases in Duval County were out-patient cases, with the trend increasing. (T-403) Petitioner's Exhibit #15 is the summary of Dr. Fagin's need analysis with two columns, one assuming an out-patient surgery rate of 35 percent of total surgeries, and the other assuming a rate of 40 percent. The number of available ambulatory surgery rooms (24) is based upon the availability of four rooms in one recently opened free-standing ambulatory center (AMI) and twenty other free-standing or dedicated (used only for out-patients) operating rooms in Duval County hospitals. The analysis assumes that the rooms will be operated five days a week, two hundred and fifty days a year (5 days x 52 weeks, minus 10 days for holidays and "down-time"). The figure of 960 cases per year, per room, is further derived from the assumptions the room will be operated 6 hours a day, an average case (including preparation, surgery, and cleanup) will take 1.25 hours, and the rooms will be utilized 80 percent of the time. In addition to the number of cases described to dedicated and free-standing rooms through that process, 3000 cases are presumed to be done each year in non-dedicated operating rooms. This figure is derived from rounding off the reported 3030 out-patient cases in non-dedicated units in 1983. The rationale for including those cases is that due to lack of sufficient free-standing units, the out-patient services must be provided in the regular hospital OR environment. The number of such cases, according to Dr. Fagin, should decrease as the number of free-standing units increases. (T. 414-415). Dr. Fagin's methodology applied to various hypothetical fact situations yields the following conclusions as to need for (+), or excess of (- ), free-standing ambulatory surgery operating rooms: Assuming a service area including all of HRS District IV, Sub-area A, 24 currently available rooms; and 960 cases per room per year: (Petitioner's Exhibit #15) 35 percent 40 percent + 6 rooms + 10 rooms Same assumptions as A, above: (intervenor`s Exhibit #16) 30 percent rate + 1 room Same assumptions as A, above, except limited to Duval County: (Intervenor Exhibit #17) 30 percent 35 percent 40 percent -4 rooms -1 room +2 rooms Same assumptions as A, above, except 31 existing rooms, instead of 24: (Intervenor Exhibit #18) 30 percent 35 percent 40 percent not calculated -2 rooms +3 rooms Same assumptions as A, above, except 31 existing rooms and service area limited to Duval County: (Intervenor Exhibit #19) 30 percent 35 percent 40 percent -11 rooms -8 rooms -5 rooms Same assumptions as A., above, except 1200 cases per room per year, instead of 960: (Intervenor Exhibit #20) 30 percent 35 percent 40 percent -4 rooms -1 room +3 rooms Same assumptions as A, above, except 1200 cases per room and 31 existing available rooms: (Intervenor Exhibit #21) 30 percent 35 percent 40 percent -11 rooms -8 rooms -4 rooms Same assumptions as A, above, except 1200 cases per room, 31 existing available rooms and Duval County only: (Intervenor Exhibit #22) 30 percent 35 percent 40 percent -15 rooms -13 rooms -10 rooms HRS Need Methodoloy Reid Jaffe, Medical Facilities Consultant for the Office of Community Medical Facilities, was qualified as an expert in health care planning with emphasis on certificate of need. (T-533) He explained the ambulatory surgical center need methodology as summarized in DHRS Exhibit #1. The Department typically uses a single county as its planning area for ambulatory surgery applications. (T-556). Therefore, the data is based on Duval County population and services provided by Duval County facilities. To obtain the volume of surgical procedures in Duval County hospitals, letters were written requesting the break-out for the period February 1984-January 1985. While the process is not an exact science, Mr. Jaffe feels that since the Department asks for the same type of information over a period of time, the anomalies in the figures will become obvious. (T-569). Based upon the returns to the questionnaire, the Duval total surgery rate, (out-patient and in-patient) was determined as 97.7 per 1000 population; the out- patient surgery rate was determined to be 30.2 per 1000 population. The July, 1987 population projection was 623,091. Need was projected at both 30 percent out-patient to total surgeries and 40 percent out-patient to total surgeries. The out-patient surgical potential (number of procedures) is derived from subtracting the hospital out-patient surgical volume from the projected number of procedures needed at a 30 percent and 40 percent rate. From that line was deducted the projected breakeven procedures for each of three free-standing ambulatory surgery centers in various stages of development in Duval County. The 30 percent rate yielded a bottom line of 5,922 excess procedures, and the 40 percent rate yielded a bottom line of 165 procedures remaining for some other facility to perform (unmet need). Since HRS considers the facility breakeven point to be considerably more than 165 procedures per year, it concludes that no additional facilities are required at this time. HRS did not explain its assumption that the rate of surgeries performed on an out-patient basis at hospitals would remain constant (30.2 per 1,000 population), while the overall percentage of out-patient surgeries to total surgeries would increase to 40 percent. (DHRS #1, T-569-576). Intervenor's Need Methodology Michael Swartz testified for Memorial and Baptist as an expert in health care planning and hospital administration. (T-704) He rejected the second-hand data utilized by both Petitioners' and HRS' experts. He devised a poll that was sent to all area hospitals and attempted to verify the responses through direct contacts and, in some instances, a walk-through of the facilities and review of hospital records. Information reported in State Agency Action reports was used for St. Luke's, since that one hospital failed to respond. (T- 704-707, 711-713). Like the other need methodology experts in this proceeding, Mr. Swartz relied on population projections from the Executive Office of the Governor. (T- 711). The geographical service area was considered Duval County, because that is what the state considers and in Mr. Swartz' opinion an ambulatory surgery center draws from a less than 30-minute driving period. (T-712). Mr. Swartz found in his data gathering that, while the number of surgeries per 1000 population has fluctuated only slightly, the mix of surgeries (in-patient to out-patient) has shown a dramatic increase in out-patient procedures. (Intervenor's Exhibit #5, T-722). After determining what he considered were the actual numbers of surgeries performed in 1983 and 1984, the actual number of operating rooms in Duval County, and the actual amount of time spent for each case, including clean-up, he determined that the bottom line showed a utilization rate of only 27.8 percent of existing surgical suites in Duval County in 1984. (Intervenor's Exhibit #6, T-729). Utilizing a fixed use rate of 103.3 surgery cases per thousand, Mr. Swartz projected an excess capacity of 109,214 cases in hospitals in 1986 and 1987, and an excess capacity for 19,279 cases in free-standing surgical centers (including AMI, Surgicare III and Medivision) in 1986 and 1987. (Intervenor's Exhibit #12 and #14, T-749, 750). The most fatal flaw in Mr. Swartz' ultimate conclusion, that there is a current and projected excess of surgery suites in Duval County, is that after his painstaking data-gathering process he lumped together all types of existing operating rooms and assumed they were all equally appropriate to handle in- patient and out-patient surgeries. This assumption is contrary to the weight of evidence in this proceeding. Of the three methodologies presented, I find Dr. Fagins most reasonable. It requires some adjustments, however, to conform to the evidence. Proceeding from Petitioner's Exhibit #15, I find the 40 percent out-patient surgery rate reasonable and consistent with credible expert testimony from all sides in this case. (Howard Fagin - T-413; Reid Jaffe - T-573; Rena Blackmer - T-106l; Carol Whittaker-T- 990: Eileen Fullernveider, T- 1125). Utilization of Subdistrict A as the service area is also 4 appropriate here. It is consistent with the District IV local health plan and recognizes the fact that Jacksonville draws from outlying counties for the sophisticated range of medical services it provides. (T-254, 255) while ordinarily free-standing surgery centers might be more neighborhood oriented and draw from a closer geographical area, it is noted that Duval is the only county in Subdistrict A with free-standing or dedicated operating rooms and for that reason patients could be expected to travel into Jacksonville. (Petitioner's Exhibit #14) The one-hour travel time addressed in the CON application, p. 226, would include some travel from the outlying counties. Reid Jaffe, the HRS expert, does not agree with the local health plan because it would be unlikely that a resident of a county that has a hospital or multiple hospitals in it and that have ambulatory surgical programs, to bypass those closer facilities just to go to Jacksonville." (T-554, 555). In the absence of dedicated ambulatory surgical programs, however, some patients very likely would travel to Jacksonville. The continued projection of 3000 cases in non-dedicated operating rooms is reasonable, since not all ambulatory surgery patients would travel to Jacksonville. Further, even when it completes its new ambulatory center, Baptist anticipates continuing to conduct approximately 2096 of its out-patient surgeries in the main ORs. (T-1063, 1064, 1085). Patient and physician loyalty would also account for some continued out-patient surgeries in those hospitals without dedicated ORs. The population projection for 1988 is appropriate, given a two-year planning horizon and the fact that the final hearing in this proceeding was continued until the end of 1985. The surgical rate of 102.94 per 1000 population is slightly higher than the 97.7 rate utilized by HRS but, just under the 103.3 rate utilized by Intervenor's expert, Howard Swartz. (Intervenor's Exhibit #14). Petitioner's Exhibit #15 understates the available ambulatory surgery rooms projected for 1988. A second free- standing ambulatory surgery center has been approved for Jacksonville and has completed its legal proceedings: Surgicare III, with 3 operating rooms. (T-562, Surgical Services of Jacksonville v. HRS, 479 So.2d 120, Affirmed 11/18/85). The record in this proceeding does not clearly reveal the status of a third surgical center, Medivision, with two rooms dedicated to opthomologieal surgery. Since that facility may still be in legal limbo, its rooms are not being counted. While Intervenor, Baptist, on cross examination posited a hypothetical application of Petitioner's methodology which included seven additional available rooms, no competent evidence followed up to substantiate any more than three additional beds. The available ambulatory surgery rooms factor in the methodology is therefore adjusted to 27. Petitioner's methodology also understates "available capacity" by understating the number of cases which could be handled per room, per year. While Dr. Fagin's methodology utilized 960 cases per room, per year, the weight of evidence and expert opinion established that at least 1300 cases per room, per year is a more realistic approximation. Intervenor's need expert, Michael Swartz, determined capacity based on ten available hours per day, five days a week, at 75 percent effici-ency (American College of Surgeons Standard) to be 2,077 cases per room, per year. (Intervenor's Exhibit #9, T-735- 737). The Hill-Burton standard utilized to determine the need for construction funds in the 1970's was 1200 cases per year, based upon data collected in the 1960s when the average time for a ease was 2 hours. (T-740, 741). Average time today is far less. (T-149, 240, 1064) Petitioner's own projected utilization assumes a capacity for 2 operating rooms, with evening and Saturday scheduling to be 300 procedures a month. (Petitioner's Exhibit #2). This translates into 1800 procedures per year, per-room. while recognizing that counting procedures rather than cases yields a higher number, San Marco never asserted that it anticipates performing two procedures for almost every case it handles. Yet this ratio is the only means of reconciling the difference between its expert's projection and that of its administrator. The above-described adjustment to Petitioner's need methodology results in the following adaptation of Petitioner's Exhibit #15: 40 percent Am. Surg. Subdistrict A 1988 Population Surgical Rate Total Surgery 861,120 102.94/1000 pop. 88,644 Ambulatory Surgery 35,457 Available Am. Surg. rooms 27 Available capacity (1300 cases) 35,100 Am. Surg. in Hospitals 3,000 Net Need Cases -2,643 Net Need Rooms - 2 Quality Of Care San Marco will occupy a building presently occupied by the Jacksonville Women's Health Organization, a licensed abortion clinic. If the certificate of need is granted, the existing building will be remodeled to provide two operating rooms and ancillary facilities required for licensure as an ambulatory surgical facility. HRS witness Reid Jaffe does not question the ability of the structure to meet requirements for licensure and does not question the ability of the proposed center to provide quality care. (T-584). The center will develop bylaws and protocols to maintain quality of care. To practice at the center, a physician must be licensed in Florida and must have privileges in good standing at a local hospital (T-59, 60). Jaroslav Fabian Hulke, M.D., was accepted as an expert in obstetrics and gynecology. He has had extensive experience in teaching and conducting out- patient surgery. (Petitioner's Exhibit #7). He has become personally familiar with Y & S Management's facilities and with their staff through his work at the center in Raleigh, North Carolina. He has also observed the facility in Jacksonville and assisted Susan Hill in developing the equipment list for the facilities. His high commendation of Miss Hill, her facilities and the planned equipment was without equivocation; his testimony as to the anticipated quality of care to be offered by this facility is most credible. (T-351, 353, 355). Anesthesia classifications range from I to IV depending on the condition of the patient. Class I and II are relatively healthy. The San Marco center will handle class I and II; some hospital out-patient units handle class III patients on a selected basis. (T-114, 141, 1120). Statistics on emergencies and deaths in free-standing ambulatory centers are not available now. The Free-standing Ambulatory Surgical Association (FASA) is in the process of gathering data. (T-1129, 1153, 1154). Depending on how they are run, equipped and staffed, the free-standing centers are considered extremely safe. (T-1128). Nothing in this proceeding would hint that the proposed administration, staffing or equipment for San Marco is less than high quality. Staffing By their Prehearing Stipulation filed on October 25, 1985, the parties agreed that there exists in Duval County an adequate labor pool of health manpower and management personnel to staff an ambulatory surgical facility. San Marco has the ability, experience and intention to obtain adequate, well- trained personnel to provide staffing for the proposed center. (T-72-75, 232- 236, 351-352). Physical and Economic Accessibility The parties have stipulated that the proposed facility is geographically available to all residents of Duval County. (Prehearing Stipulation, filed October 25, 1985). While the center will focus on the Duval County area, it also will likely draw from surrounding counties to a lesser degree. The existing abortion center already serves the wider area and as found in paragraph 12 above, no free-standing ambulatory center or dedicated out- patient ORs exist in Subdistrict A outside Duval County. For that reason, patients could be expected to drive as much as an hour to get to the facility. (CON application, p. 226). San Marco claims that it will serve 15 percent medicaid and 5 percent medicare patients. (CON application pp. 91-136). The Raleigh-Surgi-Center was used as a model since it is the one facility that receives medicaid reimbursement for non-abortion procedures. (T-89,160). However, while Medicaid does not reimburse for abortions, the State of North Carolina provides state funds and apparently those patients are computed in Raleigh's 21.6 percent figure. (T-89,90). The validity of the model is undermined by the fact that no such reimbursement occurs in Florida. (T-161). Even though the 20 percent Medicaid and Medicare projection is overstated, economic accessibility is enhanced by the willingness of the center to reduce fees for abortion procedures for otherwise Medicaid eligible patients by $50.00 or $60.00, which sum represents the management fee portion of the procedure cost. (T-158-160). More significantly, the projected standard fee for other than abortion procedures, $300.00 - 400.00, is substantially lower than fees at hospitals, including hospitals with separate ambulatory units. (T- 57, 81-82, 907, 1070, 1071, Petitioner's Exhibits #19, 20, 21, 22). Capital Costs and Financial Feasibility The total anticipated project cost for the proposed center is $246,000.00, including $80,000.00 for renovation of the building and approximately $133,000.00 for the purchase of equipment. (T-94-98, 172-173, 327). Capital is available for project start-up through the personal funds of millionaires, Stuart and Joseph Yachnowitz. (T-172). In its review of the application, HRS concluded: "There appears to be an insufficient projected number of out- patient procedures to allow this facility to be viable." (State Agency Action Report, Hearing Officer Exhibit #1). At hearing, HRS witness Reid Jaffe testified that because of the co-mingling of revenues from the abortion center and the proposed ambulatory surgery center, the financial feasibility of the project could not be determined. (T. 588, 589). On the other hand, if the revenues are co-mingled and if the projections in the applicant's pro formas are accurate, then the facility ought to do better than break even. (T-600-601). Christopher Fogel, Petitioner's expert accountant, represents Y & S Management and the ten out-patient facilities owned by Joseph and Stuart Yachnowitz. (T-182, 183) His financial projections for the proposed facility are found in Petitioner's Exhibits #5 and #6. The first projection is based upon the fee of $300.00 per procedure, for one hour of OR time, and the second is based upon $400.00, for 1.3 hours of OR time. The projections presume the facility would continue to offer its existing services (abortions) at its current level and expand to 250, 500 or 1000 procedures per year. At the $300.00 per procedure level, the facility would begin to make money with 500 additional procedures a year. However, by adding back 50 percent of the management fees (profit in the fees available to the Yachnowitz') and adding back depreciation and amortization, a positive cash flow results without any additional procedures, and increases substantially for 250, 500 and 1000 procedures at both the $300.00 and $400.00 per procedure rate. (T-198-206). Given the worst case scenario (no additional procedures), the owners are losing money only for tax purposes, but are actually increasing cash flow through the legitimate tax deduction of a loss which is not a loss of cash. (T-206). H. Impact on Competition The introduction of a free-standing ambulatory center in Duval County had a positive dynamic effect on existing traditional providers of surgical care in Duval County. Prices were lowered and more hospitals began out-patient surgery programs of their own. While the changes in costs and methods of surgical services is also attributable to pressure and incentives from insurers, no one disputes that the competition from AMI (the one free-standing facility in Duval County that is currently operational) was healthy. (T-639, 640, 1132, 893-894, 1061, 996- 997, 239). HRS health care planning expert, Reid Jaffe is of the opinion that currently the four ORs at AMI, the two opthalomological ORs at Medivision, and the 3 general ORs of Surgicare III (approved but not yet opened) are sufficient competition to the hospitals and to each other (T-564- 565, 643). No one seriously contends that the addition of San Marco's 2 ORs would put an existing facility out of business. Memorial's Chief Financial Officer, Earl Winston Lloyd, expects his facility's new out-patient unit to continue to be profitable with or without San Marco. Memorial's out-patient facility has exceeded Memorial's expectations in its productivity and profitability (T. 871- 874). John Anderson, Chief Financial Officer at Baptist, is concerned that Baptist will lose at least 35 procedures per month which are currently being performed at Baptist by physicians who have indicated an interest in practicing at San Marco. (Intervenor's Exhibit #23, T-943-945). However, he doesn't know whether those same doctors are performing out-patient surgeries in other facilities or whether those surgeries might be the ones that are taken to San Marco. (T-976). Rena Blackmer, Director of Surgical Services at Baptist, testified that when competing out-patient units opened at A.M.I., Memorial and St. Lukes, she felt initially that Baptist was losing a share of the market, but there has not been a continuing adverse effect. (T-1062). In 1985, Memorial`s excess revenue over expenses was approximately $2.5 million, with gross patient revenues of $80-82 million. (T. 863, 864). In 1985, excess revenue over expenses for Baptist was approximately $10 million. A $4.6 million loss on refinancing a debt is not included in that total; however, the $4.6 million is a balance sheet entry which impacts the income statement and is not a cash item. (T-956, 957) Total operating revenue in 1985 was $96 million. (T-955) David Mobley M.D. is a plastic surgeon who has been medical director of the Jacksonville Womens Health Organization since 1976. He practices at Baptist Medical Center, and his name appears on Intervenor's Exhibit #23 as one of the doctors whose out-patient surgeries the hospital is concerned about losing to San Marco. Dr. Mobley performs in his private office approximately ten surgeries a week that he would like to transfer to San Marco. Among as those cases are performed in his office, he is reimbursed only the fee that he receives for the same procedure done in a hospital. He absorbs the cost for his operating room at his office, his staff and supplies. (T- 247, 248). For the patient or his insurer however, the cost for the procedure would be at least twice as much in a free-standing surgery center as in the physician's office. (T-268). San Marco: Abortion Clinic or Ambulatory Surgical Center? From all the evidence in this proceeding the uncontrovertible fact emerges that when and if it is approved, San Marco Surgi-Center will merge with the Jacksonville Women's Health Organization and the two entities will make up a single health care facility: the building is the same; the equipment is the same; the owners are primarily the same; the managers are the same; and for purposes of predicting financial success, the revenue and expenses of the two entities have been considered one and the same. San Marco projects that even after two years of operation as a surgical center, a majority of its procedures will remain abortions. (Petitioner's Exhibit #2). Abortions are accomplished in health care facilities through a variety of surgical techniques, the most common of which is dilation and evacuation (D & E). (T-346, 347). Even though D & E's are expected to predominate at the facility in terms of projected number of procedures (168 per month, compared to 90 other surgical procedures per month, by June 1988), the D & E's will not predominate either in gross revenue from fees or in the anticipated OR time. San Marco anticipates the average patient charge for surgeries other than abortions to be $400.00 per case and the average OR time to be 1.3 hours. (T-93, 149). The non-medicaid patient charge for a D & E is $185.00, and the time in the OR room is generally about twenty minutes. (T-148, 158). Taking the same month, June 1988, and multiplying the number of abortions first by fee, then by OR time, yields a total of $31,080 in fees and 55.4 hours in the OR room. The same process for the 90 other surgical procedures yields $36,000.00 in fees and 119.7 hours OR time.
Recommendation Based on the foregoing, it is recommended that Certificate of Need #3304 be denied. DONE and ORDERED this 2nd day of April, 1986, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-3712 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. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in substance in paragraph 3. Adopted in paragraph 1. Adopted in substance in paragraph 2. The surgical procedures are summarized by category in paragraph 3. Adopted in substance in paragraphs 2, 16 and 24. Rejected as cumulative and unnecessary. Adopted in substance in paragraphs 16 and 19. Adopted in substance in paragraphs 25 and 26. The statement of John Anderson's testimony is unnecessary, Rejected as cumulative and unnecessary. Adopted in substance in paragraph 26. Rejected as cumulative and unnecessary. Substantially adopted as summarized in paragraph 26. Adopted in part in paragraph 23, otherwise rejected as unnecessary. Adopted in part in paragraph 23, otherwise rejected as unnecessary. Adopted in part in paragraph 23, otherwise rejected as unnecessary. Adopted in substance in paragraph 12 and 21. Adopted in substance in paragraph 12, 13 and 21. Adopted in substance in paragraph 13. Adopted in substance in paragraph 13. Adopted in substance in paragraph 4. Adopted in substance in paragraph 5. Adopted in part in paragraph 5, otherwise rejected as unnecessary. Rejected as irrelevant and unnecessary. Adopted in paragraph 20. Rejected as irrelevant. Rejected as explained in paragraph 22. Rejected as unnecessary. Policy memorandum #7 is addressed in Conclusion of Law No. 3; otherwise this is rejected as a finding of fact. Rejected as unnecessary. Rejected as repetitive. Adopted in substance in paragraph 24 and 26. Adopted in substance in paragraph 21. Adopted in paragraph 9. Rejected as cumulative. Adopted in paragraph 9, otherwise rejected as contrary to the weight of evidence or unnecessary. Adopted in part in paragraph 29, otherwise rejected as unnecessary. Adopted in substance in paragraph 28. Rejected as cumulative and unnecessary. Rejected as cumulative and unnecessary. Adopted in substance in paragraph 28. Adopted in paragraph 28. Adopted in part in paragraph 28, otherwise rejected as cumulative and unnecessary. Rejected as cumulative and unnecessary. Adopted in paragraph 29 as to the profit of $10 million dollars, otherwise rejected as unnecessary. Rejected as cumulative and unnecessary. Rejected as cumulative and unnecessary. As addressed in conclusions of law #10 and #11, the impact on Baptist was found to be minimal and insufficient to support "standing". Adopted in paragraph 10. Rejected as unnecessary. Rejected as unnecessary. Adopted in substance in paragraphs 10 and 11. Rejected as cumulative and unnecessary. Rejected as cumulative and unnecessary. Rejected as cumulative and unnecessary. Rejected as cumulative and unnecessary. Rejected as cumulative and unnecessary. Adopted in substance in paragraph 11. Rejected as cumulative and unnecessary. Rejected as cumulative and unnecessary, except as to the apples/oranges analogy, which is adopted in paragraph 9. Rejected as cumulative and unnecessary. Rejected as cumulative and unnecessary. Rejected as cumulative and unnecessary. Adopted in paragraph 11. Adopted in paragraph 10, as to the characterization of Dr. Fagin's testimony. Otherwise, rejected as summary of testimony rather than findings of fact. The adoption of 40 percent as reasonable is found in paragraph 12. Rejected as contrary to the weight of the evidence. HRS Need Methodology is rejected in paragraph 10.(b) and paragraph 12 as being less reasonable than Petitioners' experts methodology. Rejected as essentially argument, rather than findings of fact. Rejected as contrary to the weight of evidence. Rejected as repetitive. Adopted in substance in paragraph 33 and Conclusion of Law #3. Rejected as argument unsupported by the weight of evidence. Rejected. See paragraph 7 for discussion of State Health Plan. Rejected as argument, rather than finding of fact. No paragraph of this number is found in Petitioner's Proposed Findings of Fact. Adopted in Conclusions of Law, paragraph 4. Rulings on Joint Proposed Findings of Fact Submitted by the Respondent and Intervenors. (Note, the numbers in the left column conform to the numbering of the joint proposed findings) 1. Adopted in substance in paragraph 1, 2 and 3. Adopted in paragraph 6. Adopted -In paragraph 4. Adopted in paragraph 5. 1. Adopted in paragraph 7. Adopted in paragraph 8. Rejected as irrelevant. Adopted in part in paragraph 8, otherwise rejected as unnecessary. Rejected as irrelevant. Adopted in substance in paragraph 10(b). Rejected as contrary to the weight of the evidence. Adopted in part in paragraph 10, otherwise rejected as unnecessary. Rejected as a re-statement of testimony, rather than finding of fact 10.c. Description of Mr. Swartz' methodology is provided in paragraph Rejected as irrelevant. Rejected as irrelevant. 13 - 21. Rejected as unnecessary. Adopted in substance in paragraph 10. Rejected as unnecessary. Rejected as contrary to the weight of evidence, except as reflected in paragraph 10. Adopted in part in paragraph 10.b., otherwise rejected as unnecessary. 25A. Adopted in part in paragraph 10, otherwise rejected as unsubstantiated by competent substantial evidence. Adopted in part in paragraph 10, otherwise rejected as unnecessary. Adopted in part in paragraph 22 and 23, otherwise rejected as unnecessary. 1. Adopted in substance in paragraph 31. Adopted in substance in paragraph 31. Rejected as contrary to the evidence by considering all uncontroverted testimony and evidence describing the facility. Adopted in part in paragraph 32 and 33, otherwise rejected as irrelevant. Adopted in part in paragraph 32 and 33, otherwise rejected as irrelevant. Rejected as contrary to the weight of the evidence. Adopted in part in paragraph 31, 32 and 33, otherwise rejected as irrelevant. Rejected as irrelevant. Rejected as contrary to the weight of the evidence. 1. Rejected as unnecessary. Rejected as argument that is unnecessary or unsupported by competent substantial evidence. Adopted in substance in paragraph 27. 1. Rejected as cumulative. Rejected as cumulative. Rejected as unnecessary. Adopted in part in paragraph 4, 5 and 10, otherwise, rejected as unnecessary. Adopted in substance in paragraph 9. Adopted in substance in paragraph 9. Adopted in part in paragraph 4 and 5, otherwise rejected as unnecessary. Rejected as cumulative. Addressed in Conclusion of Law 6. 1. Adopted in paragraph 17. Rejected as irrelevant. Rejected as irrelevant. 1. Rejected as cumulative. 2. Rejected as mere re-statement of testimony rather than a finding of fact. 1. 1. 1. 1. Adopted in paragraph 20. Adopted in part in paragraph 24, otherwise rejected as irrelevant or contrary to the weight of evidence. Rejected as irrelevant. 1. Adopted in part in paragraph 26, otherwise rejected as irrelevant. Adopted in paragraph 24. Rejected as irrelevant. 1. Addressed in Conclusion of Law 4. 1. Addressed in Conclusion of Law 4. 1. Rejected as unnecessary argument. Adopted in part in paragraph 27, otherwise rejected as unnecessary. Rejected as the description of an exhibit and characterization of testimony. Adopted in part in paragraph 30, otherwise rejected as unnecessary. 1. Adopted in paragraph 24. COPIES FURNISHED: William J. Page, Jr., Secretary Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301 Steve Huss, Esquire General Counsel Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301 Chris H. Bentley, Esquire William E. Williams, Esquire Jeannette Andrews, Esquire Post Office Box 1739 Tallahassee, Florida 32302 Douglas Mannheimer, Esquire Richard Power, Esquire Post Office Drawer 11300 Tallahassee, Florida 32302 Michael J. Dewberry, Esquire Christopher Hazelip, Esquire 1300 Gulf Life Drive Jacksonville, Florida 32207 Robert Meek, Esquire Post Office Box 240 Jacksonville, Florida 32201 =================================================================
Findings Of Fact Surgicare III is the sponsor of Surgicare Outpatient Center of Leesburg, a proposed freestanding ambulatory surgical center to be located in Leesburg, Florida. LRMC is an existing hospital located in Leesburg. It has four operating rooms where general surgery is performed and one cystoscopy room. Lake is an existing hospital located in Leesburg, Florida. It has three operating rooms and one cystoscopy room. Two additional operating rooms are presently under construction, one of which is intended to be used for minor surgeries under local anesthesia. Waterman is an existing hospital located in Eustis, Florida. It has four operating rooms, one urology procedures room, and one endoscopy room. Waterman has a certificate of need to add two additional operating rooms As originally proposed Surgicare's application was to construct a one- story building containing 10,000 square feet and two operating rooms. The original plans have been amended to reduce the size of the building to 8,000 square feet. The total cost as projected will not exceed $1,570,064. The service area proposed to be served by this facility includes Lake County and a 30-minute driving radius, approximately 20 miles, from Leesburg. Surgeries proposed at this facility are those surgeries, performed under general or local anesthesia, after which the patient will be able to be taken home and cared for, rather than remain overnight or longer in the hospital. Most such surgeries are elective as contrasted to emergency. Surgicare projects a total of 1 ,269 procedures in the first year and 2, 011 in the second year of operation. Based on construction costs or the original 10,000 square foot building, with permanent financing at 12 percent and these numbers of procedures, at an average cost of $390 per procedure the first year and $413 per procedure the second year, the facility will show a slight profit in the second year. The presently proposed facility containing ,090 square feet will be less costly than the 10,000 square foot facility and, even if interest is higher than the estimated 12 percent, Petitioner will be able to pass the break-even point during the second year of operation, if necessary by increasing fees. The average charge for similar surgeries in the Lake County hospitals is $1,309, so a slight increase by Petitioner, if necessary, is acceptable. There is currently no rule establishing the methodology to be used in determining need for an ambulatory surgical center. Nor is there a local health system plan applicable to such need. IRS uses a pro-competitive methodology which is based upon a policy which has not been adopted as a formal rule. This methodology uses the total reported surgery cases in a given county for the most recent 12-month period, the population estimate for the period, and derives a surgical utilization rate per 1,000 population. Similarly, the reported number of outpatient procedures in that county for the same period is used to derive the outpatient surgical use rate. Applying the outpatient use rate to projected future population, HRS then determines the number of outpatient procedures expected in future years in that service area. In evaluating ambulatory surgery center CON applications, HRS utilizes a two-year planning horizon. Surgicare is expected to complete its second year of operation in 1988, so 1988 becomes the relevant year For looking at projected need. Since December, 1982, HRS has assumed that 29 percent of all surgeries could be performed in an outpatient setting. This 29 percent target is the mean between 18 percent (the actual percentage of total surgeries which are reported to have been performed on an outpatient basis by hospitals participating in a 1981 survey by the American Hospital Association) and 40 percent (that percentage which a survey of literature relating to ambulatory surgeries projected could be performed in outpatient settings) . The outpatient surgeries performed in Lake County hospitals during the most recent reported 12-month period was well below the 18 percent average nationwide. This 29 percent target is a reasonable estimate of the percentage of surgeries that can be performed on an outpatient basis. In the past two years, as is shown by the testimony presented at this hearing, hospitals in Lake County have become more receptive to facilitating outpatient surgeries on their premises. This would have the effect of increasing the 18 percent found in 1981, if a survey similar to the 1981 survey was taken today. A more recent report of the American Medical Association indicates that this low end of the range has, in fact, risen to 20.0 percent. Accordingly, a mean of 30.4 percent of all surgeries performed on an outpatient basis is reasonable. By applying the target factor to projected total surgeries, HRS calculates the projected number of potential ambulatory surgeries for a given year in the future. Subtracting the outpatient surgeries projected to be performed in existing facilities in the future from the total potential outpatient surgeries yields a projected unmet need for outpatient surgical care. Applying the 29 percent factor to the surgeries performed in Lake County for the last 12 months reporting period and projecting this figure to 1988, HRS projects a potential need for outpatient surgeries in Lake County at 3,090. Based on the 1983 reported outpatient surgical use rate for Lake County and a target of 29 percent, 1,455 of the 3,090 surgeries would be performed in hospital settings in 1988 leaving an unmet need of 1,635 potential outpatient surgeries to be performed in Lake County. The intervening hospitals all contend that they have adequate capacity in their existing operating rooms to provide for all needed outpatient surgery in Lake Count and there will be excess capacity when the four additional approved operating rooms become operational. However, none of these existing or to be added operating rooms is dedicated to outpatient use although Lake will open in the near future an operating room in which only minor surgery under local anesthesia will be performed. Until very recently the Lake County hospitals were charging outpatient surgery patients the same charges imposed on inpatient surgery patients, except for the overnight room charge. As a result the average charge for outpatient surgery per procedure in Lake County is $1,309. Petitioner's initial proposed average charge per procedure is less than $400. Recently one or more of the Lake County hospitals have offered a flat charge for use of their facilities for minor surgeries. However, these new charges greatly exceed the charges proposed by petitioner. Many of the surgical procedures performed in hospitals are classified as emergency and take precedence in the use of operating rooms ever elective surgical procedures which most outpatient surgeries are classified. As a result it is difficult for doctors to schedule outpatient surgeries in hospital operating rooms and have those schedules met. An exception would be, of course, if the doctor reserved and kept the operating room in which he scheduled the first operation that day. The facilities now provided to patients undergoing outpatient surgery at LRMC is not well suited to outpatient surgery because outpatient surgery patients go from the operating room to the post anesthesia recovery area whether they had local or generate anesthesia. This same space is used as a postoperative recovery area for all surgical patients, some of whom have undergone serious and extensive surgery. These are not pleasant surroundings for patients following their minor surgery. LMRC outpatient surgical facilities are as good or better than those in the other Lake County hospitals. Even if the existing and approved operating rooms available in Lake County hospitals are adequate, as shared outpatient-inpatient facilities, to provide for the outpatient surgeries needed in 1989, this does not preclude the need for the proposed facilities as a competitive factor in reducing hospital costs. None of the existing, and authorized, operating rooms in Lake County are dedicated for outpatient surgery, and according to federal regulations none can be so dedicated as presently organized. Medicare has recognized the cost saving aspects of ambulatory surgical facilities by paying 100 percent of the cost of surgeries performed at dedicated outpatient surgical facilities on Medicare patients while paying only 80 percent of the cost of surgeries performed at non- dedicated facilities. At present there are no freestanding ambulatory surgical facilities in Lake County. Only freestanding facilities can be dedicated and thereby receive from Medicare 100 percent of the charge for outpatient surgery. Accordingly, this will be the only facility in Lake County capable of offering this service to the residents of Lake County. Since their rates are lower than the reimbursement Medicare would pay to Lake County hospitals for the outpatient surgery performed at these facilities, use of dedicated outpatient surgical facilities will reduce the cost of health care. The filing of the application in this case induced the Lake County hospitals to speed up the review of their outpatient surgical procedures to provide better and less costly service. Without competition in outpatient surgical procedures, the hospitals have no incentive to institute cost-cutting measures apart from the measures they may have to adopt as a result of the newly implemented diagnostic related groupings (DRG) by the federal government. However, the DRGs are primarily aimed at reducing length of hospital stays and eliminating unnecessary diagnostic procedures, rather than directly reducing surgical costs.
Findings Of Fact Surgicare III is a Florida general partnership comprised of Surgicare Corporation, a wholly owned subsidiary of Medical International, Inc. (MCI) and Surgicare III of Jacksonville, Inc., a Florida corporation. MCI is the nation's largest provider of ambulatory surgical centers operating 34 such centers throughout the United States. MCI will manage the proposed facility under a management contract. The proposed facility will be financed 25 percent equity and 75 percent debt. Petitioner is financially capable of constructing and operating the proposed facility. While Surgicare had not finalized its site selection at the time of the hearing, it proposes to construct the facility in or near Brandon, with the primary service area to comprise Hillsborough County east of U.S. 301. Exhibit 15 is a unilateral prehearing stipulation by Surgicare to construct the facility in the above-described service area if the requested certificate is granted. There are many advantages of outpatient surgery in a freestanding facility over inpatient surgery and over outpatient surgery in an inpatient environment such as an acute-care hospital, of which cost is significant. Without belaboring the issue, it is accepted as a fact that many surgical procedures requiring general anesthesia and taking from a few minutes up to six hours can be performed in an outpatient setting where the patient goes home following the surgery and does not remain in the hospital overnight. Most, if not all, of these outpatient surgeries are elective and freestanding outpatient surgical centers are less costly to the patient, more convenient to the patient and to the surgeon, and provide a better environment for the patient than do most hospital outpatient facilities. Furthermore, the advent of freestanding outpatient surgical facilities has provided competition to hospitals which has resulted in lowering of hospital charges for outpatient surgery. Hillsborough County comprises one service area which includes 13 hospitals and one existing ambulatory surgery center, and a certificate of need has been issued to Surgical Services of Tampa to provide additional outpatient surgical facilities. DHRS has no rule methodology to determine need for additional ambulatory surgical facilities; however, a methodology has been established as a policy under which need for ambulatory surgery centers is determined. This policy has been in effect for an extended period of time; and, with two exceptions, is accepted by Petitioner as the proper method from a health planner's view to determine the need for additional outpatient surgical facilities. These exceptions are the percentage of surgeries expected to be performed in an outpatient setting during the second year of operation of the proposed facility and calculations of need based on a subdivided county. This methodology takes the latest available information for hospitals in the service area as to the number of surgeries, both inpatient and outpatient, performed in each hospital during this latest available period which, in this case, was calendar year 1984. The number of surgeries performed in Hillsborough County divided by the population of Hillsborough County will result in a surgical rate. Since the year in which Petitioner is expected to pass through the break-even point and show a profit is 1989, the population is projected to 1989 and multiplied by the surgical rate to determine the number of surgeries projected for 1989. Those 13 hospitals in 1984 performed 52,482 inpatient surgical procedures and 20,152 outpatient surgical procedures (a total of 72,834) when the Hillsborough County population was 715,435. Using these figures, the surgical rate of Hillsborough County in 1984 is 72,634/715,315 x 1,000 = 101.5 procedures per 1,000 population; the outpatient surgical rate is 24.5 per 1,000; and the Ambulatory Surgery Center is 3.7 per 1,000 (Exhibit 12). With a 1989 population projection of 757,309 in Hillsborough County, the outpatient surgeries performed in hospitals in 1989 will be 24.5 x 787,309/1,000 = 19,289 and Tampa Ambulatory Surgery Center surgeries will be 2,913 (3.7 x 787,309/1,000) or a total of 22,202 outpatient surgeries performed at existing facilities plus an additional 2,222 outpatient procedures to be performed at Surgical Services of Tampa, which will be fully operational at that time. The disputed percentage is the expected percentage of total surgeries which will be performed on an outpatient basis in 1989. Petitioner contends this figure should be 34, while Respondent contends 30 to be the correct percentage. Both parties attempt to extrapolate outpatient surgery percentage provided by the American Hospital Association. In certificate of need hearings involving freestanding ambulatory centers in 1984, DHRS used a figure of 29 percent, which was the mean of 18 percent and 40 percent, the former being the number of outpatient surgical procedures performed in 1981 and the high figure the AMA's estimate of the ultimate percentage of surgical procedures that could be performed in an outpatient setting. Since 1981 the percentage of surgeries performed in an outpatient setting has increased. In 1984 the percentage of total surgeries in Hillsborough County that were performed in an outpatient setting was 27.74 percent. Freestanding outpatient surgical facilities are a recent innovation in the health care provider field. Due to the lower costs associated with outpatient surgical procedures over inpatient surgical procedures, the advent of freestanding outpatient surgical centers has brought much needed competition to the health care provider field and has induced hospitals to provide for outpatient surgery and lower their charges for the use of these facilities. As a result the percentage of surgeries performed in an outpatient setting has grown rapidly in recent years, perhaps at an exponential rate. However, this growth is not unlimited and, as the percentage curves of outpatient surgeries versus total surgeries approaches this limit, the curve flattens. Today nearly all ophthalmic procedures are performed in an outpatient setting; there will be little further percentage growth in that field. Petitioner's contention that outpatient surgeries will increase percentage-wise at the same rapid pace they have increased during the past few years and be at 34 percent in Hillsborough County in 1989 is less credible than is the figure of 30 percent used by Respondent. A proliferation of freestanding outpatient surgical facilities will have the effect of increasing the costs to those patients whose surgery, now done in a doctor's or dentist's office, is shifted to a freestanding outpatient facility. As noted by one of Petitioner's witnesses in these proceedings, his malpractice insurance could be reduced if he performed in an outpatient surgical facility those operations he is currently performing in his office. Obviously, the patient so affected would be charged for the services of an anesthesiologist and other outpatient surgical facility services for which he is not charged when the office surgery is performed. Petitioner further supports the need for this facility by proposing to serve the eastern half of Hillsborough County, which will comprise its service area. Of the 13 hospitals in Hillsborough County, only three are located east of U.S. 301 and none of these has dedicated outpatient operating rooms. There are no official census figures or projections therefrom showing the population of the eastern portion of Hillsborough County in 1984 and DHRS does not so divide Hillsborough County for health care planning purposes. The county is one service area and Petitioner's attempt to subdivide the eastern portion into a sub-area is inconsistent with statewide procedures. Multiplying the surgical rate in Hillsborough County of 101.5 per 1,000 population by the 1989 projected population of 787,309 equals 79,912 surgeries to be performed in 1989. If 30 percent of these are performed in an outpatient setting, the outpatient surgeries will be 23,974. The Hillsborough County hospital outpatient surgeries projected to 1989 are 19,289 and those outpatient surgeries to be performed at Tampa Ambulatory Surgery Center are 2,913. Adding these latter figures results in 22,202 outpatient surgical procedures to be performed in existing facilities. Altogether 2,222 outpatient surgical procedures are projected to be performed at Surgical Services of Tampa. Thus, by 1989 existing and approved facilities will perform 24,424 outpatient procedures and the projected need is 23,974. This results in an excess capacity or negative need of 450 outpatient surgical procedures in Hillsborough County for 1989.
The Issue The issue is whether FFVA Mutual Insurance Company (FFVA) should be required to pay an additional $4,169.00 (for a total of $13,155.60) to a health care provider for a pre-authorized scheduled outpatient surgery.
Findings Of Fact FFVA, an insurance company, is a "carrier" as defined in section 440.13(1)(c), Florida Statutes (2012).4/ Summerlin is a health care provider as defined in section 440.13(1)(h) and is located in Fort Myers, Florida. On March 1, 2012, the Patient, an insured of FFVA, underwent a pre-authorized arthroscopic knee surgery, which was performed at Summerlin. The surgery was performed by Fletcher A. Reynolds, III, M.D. Dr. Reynolds dictated an Operative Report wherein he described the "Procedures Performed" as: Right knee arthroscopy, subtotal medial meniscectomy of bucket-handle medical meniscus tear, major synovectomy, medial compartment chondroplasty, and abrasion chondroplasty of the inferior medial aspect of the trochlea down to bleeding bone.[5/] The Operative Report also contained a section, "Procedure in Detail," which explained the extent of the surgery performed on the Patient's knee. The Current Procedural Terminology (CPT) codes for use to bill for the Patient's procedures include: 29879 abrasion arthroplasty (includes chondroplasty where necessary) or multiple drilling or microfracture; 29881 with meniscetomy (medial OR lateral, including any meniscal shaving); and 29875 synovectomy, limited (eg, plica or shelf resection) (separate procedure). A modifier is a number added to a particular CPT code that explains the procedure and what, if anything, is unusual about it. The two modifiers at issue are "51" and "59." Modifier 51 is defined as: Multiple Procedures: When multiple procedures . . . are performed at the same session by the same provider, the primary procedure or service may be reported as listed. The additional procedure(s) or service(s) may be identified by appending modifier 51 to the additional procedure or service code(s). Note: This modifier should not be appended to designated "add- on" codes (see Appendix D). CPT 2010,® American Medical Association, Appendix A- Modifiers, page 529. Modifier 59 is defined as: Distinct Procedural Service: Under certain circumstances, it may be necessary to indicate that a procedure or service was distinct or independent from other non-E/M [evaluation and management] services performed on the same day. Modifier 59 is used to identify procedures/services, other than E/M services, that are not normally reported together, but are appropriate under the circumstances. Documentation must support a different session, different procedure or surgery, different site or organ system, separate incision/excision, separate lesion, or separate injury (or area of injury in extensive injuries) not ordinarily encountered or performed on the same day by the same individual. However, when another already established modifier is appropriate it should be used rather than modifier 59. Only if no more descriptive modifier is available, and the use of modifier 59 best explains the circumstances, should modifier 59 be used. Note: Modifier 59 should not be appended to an E/M service. To report a separate and distinct E/M service with a non-E/M service performed on the same date, see modifier 25. CPT 2010,® American Medical Association, Appendix A- Modifiers, page 530. Summerlin submitted a bill to FFVA identifying the following CPT codes and charges for each procedure done on the Patient's knee: 29879RT ($8,338.00); 29881RT ($8,338.00); and 2987551RT ($8,338.00). Summerlin's total bill was $25,014.00. FFVA paid Summerlin $8,986.60, $5,836.60 for the primary procedure (CPT code 29879RT) and $3,150.00 for the second procedure (CPT code 29881RT), but disallowed any payment for CPT code 2987551RT. FFVA issued an Explanation of Bill Review (EOBR) explaining that the total recommended allowance for reimbursement was $8,986.60. FFVA's "EOBR CODE DESCRIPTION" listed number "69" to justify its decision. As explained on the EOBR: 69 PAYMENT DISALLOWED: BILLING ERROR: CORRECT CODING INITIATIVE GUIDELINES INDICATE THIS CODE IS A COMPREHENSIVE COMPONENT OF CODE XXXXX BILLED FOR SERVICE(S) PROVIDED ON THE SAME DAY (29875 IS A COMPREHENSIVE COMPONENT OF 29879).[6/] Summerlin timely filed a "Petition for Resolution of Reimbursement Dispute," and FFVA timely filed a "Carrier Response to Petition for Resolution of Reimbursement Dispute," each pursuant to section 440.13(7). The Department issued its "Workers' Compensation Medical Services Reimbursement Dispute Determination" wherein it found that FFVA improperly adjusted the reimbursement, but only as to the charges billed for CPT code 2987551RT. The uncontroverted facts are that the Patient underwent a pre-authorized arthroscopic surgical procedure to the knee. Summerlin's invoice for billing provided to FFVA accurately reflected the multiple procedures performed by the surgeon, as did the Operative Report. Julie Dunn, FFVA's "medical compliance person," has worked for several insurance companies over her 25-year career. Her description of the process of reviewing medical bills and coding, a "complicated process because there's [sic] multiple resources that are adopted . . . ," is credible. However, in this instance, Ms. Dunn, who is not a professional coder (but is a member of a professional coder organization), did not review the EOBR until after Summerlin filed a reimbursement dispute. Although helpful, her testimony is not without doubt. Ms. Dunn never reviewed the Operative Report for the Patient. Further, FFVA only brought up the "59" modifier concern after the EOBR was issued, and the request for additional payment was made. Arlene Cotton, the Department's registered nurse consultant, is tasked with reviewing cases where a provider is disputing the reimbursement received. Ms. Cotton holds a bachelor's degree and a master's degree in nursing. Additionally, she is a certified professional coder who has reviewed hundreds of cases involving ambulatory surgical centers. Ms. Cotton reviewed Summerlin's petition for reimbursement by reviewing the CPT codes and the Operative Report for the Patient. Summerlin properly coded the Patient's three procedures. Ms. Cotton credibly explained the three procedures via the codes as follows: CPT code 29879, the primary procedure was an arthroplasty which was done in both the medial and the patellofemoral compartments of the knee; CPT code 29881 was a meniscectomy which was done in the medial compartment; and CPT code 29875 was a synovectomy which was done in the medial aspect, the intercondylar, the anterior lateral, and the patellofemoral. Further, Ms. Cotton described two additional synovectomies (for a total of four synovectomies) performed that were detailed in the Patient's Operative Report. However, Summerlin only billed for one synovectomy. FFVA's claim that Summerlin should have used modifier "59" instead of modifier "51" to "identify that procedure code 29875 was a . . . unique identifiable or a separately identifiable service" is misplaced. The Florida Workers' Compensation Reimbursement Manual for Ambulatory Surgical Centers, 2011 Edition (CRM ABS), requires that a surgical center use modifier 51. There was no credible evidence that Summerlin incorrectly billed for the three procedures. FFVA failed to appreciate the significance of modifier "51" and failed to appropriately reimburse Summerlin.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, Office of Medical Services, enter a final order affirming the Reimbursement Dispute Determination issued April 24, 2012, wherein the Department directed FFVA Mutual Insurance Company to pay a total of $13,155.60 for the reimbursement claim filed by Summerlin. DONE AND ENTERED this 16th day of November, 2012, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 16th day of November, 2012.
The Issue The issue is whether Respondent is guilty of deviating from the applicable standard of care, in violation of Section 458.331(1)(t), Florida Statutes, and failing to keep adequate medical records, in violation of Section 458.331(1)(m), Florida Statutes. If so, an additional issue is what penalty the Board of Medicine should impose.
Findings Of Fact At all material times, Respondent has been a licensed physician, holding license number ME 0066606. Respondent has been board certified in plastic surgery since 1983 and is also board certified in hand surgery. Respondent has previously practiced in Kentucky. He relocated to Florida in 1994 to join a former physician colleague, Dr. Bolt, who had developed cancer and later died in early 1995. Respondent joined the Center for Cosmetic Surgery (Center), which Dr. Bolt had sold to two persons, including Jeff Davis. The record does not disclose whether Mr. Davis is a physician, but Respondent described him and the other principal/owner as felons. The Center held out Respondent as the medical director. This representation was obviously with Respondent’s knowledge and at least tacit consent. After Dr. Bolt’s death, Respondent recruited three more physicians for the Center, but none of them was board certified in plastic surgery. Mr. Davis served as the patient coordinator at the Center. The position of patient coordinator had significant marketing responsibilities. Typically, a prospective patient would contact the Center and schedule a free consultation. At the appointed time, the prospective patient would visit the Center and speak with a physician, such as Respondent. No physical examination would take place. During the discussion, the physician would make notes on a Physician’s Report, which the prospective patient would take to Mr. Davis, whose job was to sell the surgery. Using incentives such as free nose jobs, Mr. Davis was responsible for pricing surgical procedures and scheduling surgery, once the prospective patient agreed to have a Center physician perform the agreed-upon surgery. Mr. Davis was also responsible for collecting money from patients in payment for their surgery. Typically, one of Respondent’s patients would schedule surgery two to three months from the date of making the appointment. Before surgery, Respondent would see the patient before surgery for a physical examination and preoperative testing. Respondent determined what preoperative testing was necessary on a patient-by-patient basis. Following this visit, Respondent would dictate the findings from the physical examination and the treatment plan. A transcribing service was responsible for transcribing the dictation and filing it in the patient’s chart. In May or June of 1996, Respondent provided notice to the principals of the Center that he would be terminating his employment. He terminated his employment on November 1, 1996. After his departure, Respondent learned that Center employees had misinformed his patients as to Respondent’s nonavailability due to illness or surgery. It is unclear whether this situation existed before Respondent’s announced departure. Tensions developed between Respondent and the principals of the Center. Respondent determined that he could lawfully contact those patients still needing care, so he sent those patients an announcement that he was associating himself with the American Institute of Plastic Surgery. Litigation between Respondent and the Center principals followed, including a legal action by Respondent to obtain patient records. The litigation over the records concluded with the agreement by the Center to provide records as needed, but they have provided Respondent with incomplete records. A. S. first contacted the Center in June 1995 after seeing an advertisement on television. She chose the Center and two other facilities for plastic surgery that she was considering. At the time, A. S. was 48 years old. Wanting to improve her appearance, A. S. wanted a face lift and work on her lower eyelids. She had had her lower eyelids done in 1978 or 1979 and had had a “mini-lift” in 1984. A. S. met Respondent during her first visit to the Center. A. S. and Respondent spoke for 15-20 minutes. Respondent asked her what procedures she wanted done, and she said that she wanted a face lift and work on her lower eyelids. He showed her a copy of his resume and marked a picture of a face, as they discussed procedures. A. S. did not fill out any forms or questionnaires. Respondent did not explain much concerning the procedures that A. S. was contemplating. He mentioned that she would have a thin line, which would not be noticeable, under her eyes and told how long the stitches would remain in place. He did not discuss the possibility of scarring or other risks associated with the surgery. Following her visit with Respondent, A. S. saw Mr. Davis. They discussed costs and financing. Mr. Davis gave her an estimate of the cost of the surgery that she was considering. A. S. had already checked another plastic surgery center and, later on the same day that she visited the Center, she visited the third, and last, plastic surgery facility that she was considering. The next day, Mr. Davis called A. S. and asked if she had made a decision. Mr. Davis said that Respondent had told him that Respondent wanted to do A. S.’s nose, evidently for aesthetic reasons. Mr. Davis offered the nose work at no additional charge. Although Respondent had not offered to do A. S.’s nose for free or for a charge, he was aware that Mr. Davis would offer free additional work of this kind as an incentive to the patient to select the Center for the work that she was already considering. A. S. talked the matter over with her daughter. A. S. decided to have the surgery at the Center. She then informed Mr. Davis of her decision. Three to five days later, A. S. visited the Center to discuss payments with Mr. Davis because she did not have all of the money necessary for the surgery. During this visit, Mr. Davis suggested a brow lift. He said that Respondent was good at this procedure and would be working in this area anyway. At the end of this visit, a nurse gave A. S. some paperwork prohibiting her from smoking for two weeks before the surgery due to the anticipated bleeding. A. S. had smoked one pack of cigarettes a day since she had been a teenager. A. S. discussed the effect of smoking on the surgery with the nurse, but not with Respondent. As directed, she stopped smoking and never resumed smoking again. A. S. next visited the Center on June 26, 1995, for the surgery. No one performed a physical examination of A. S. On this date, Respondent performed a browlift, rhinoplasty, and facelift. After A. S. awoke from the general anesthesia, she did not receive any instructions from Respondent or staff regarding the care of her bandages, which extended across a large part of her face and top of her head. She was scheduled to return to the Center two days later. A. S.’s daughter drove her home. Once they got there, she noticed that her mother’s face seemed grey. A. S. told her to call Respondent. The daughter informed his answering service of her mother’s condition. She then waited one-half hour for Respondent or his staff to contact her. After hearing nothing, the daughter called the answering service again and waited another half-hour. After a third call and another half-hour wait, Respondent called A. S. and told her to cut the bandage under her neck. By cutting the bandages, A. S. revealed an open cut on her neck. When she returned for her followup visit two days later, A. S. asked Respondent about the cut, which extended along the right side of the neck below the ear. Respondent assured her that it would close up, which it did. When Respondent expressed concerns about her eyes and a dent in her nose, Respondent assured her that they would discuss these matters after the swelling went down. About one week later, Respondent returned to the Center for a second followup visit. During the second followup visit, Respondent removed the stitches. Now that some of the swelling had gone down, A. S. discovered that Respondent had not performed the surgery on her lower eyes. A. S. could not recall Respondent’s explanation for not performing this surgery. A. S. complained to Respondent that, since the surgery, her right eye had become smaller than her left eye, the right eyebrow had become lower than the left eyebrow, and the right side of her face from the eye down had become looser. Also, she complained about the extensive marks, scarring, loose skin, redness, and a dent under her chin; the dent in her nose and a misshapen right nostril; a swollen bump on her left cheek; a big chunk of skin gone from her hairline; and a gully on the left side of her face. Respondent assured her that he would fix these problems with revisions to the eyes and nose and the area under the neck. He did not offer any revisions to hair line, whose appearance worsened as the swelling reduced. Respondent later performed some relatively minor revisions to the right side of A. S.’s face at no cost to A. S. He reset the remaining revisions for a date in mid-December, 1995. Despite A. S.’s persistence at trying to obtain the additional revisions, Respondent failed to perform them. Repeatedly, Center employees canceled scheduled surgery dates, claiming that Respondent was ill or busy with unscheduled surgery. They rescheduled the December surgery to a date in mid- February, 1996. When she reported on this date, a Center employee took her to Mr. Davis, who informed her that the Center had lost money on her surgery and would not perform revision surgery until she paid additional money. They rescheduled her surgery for a date in late March. When A. S. reported on the date for her surgery in March, Mr. Davis told her that they would not do the revision surgery until she paid another $300. A. S. charged this sum on her credit card, so they would do the surgery. Mr. Davis told her that Respondent was too busy, and he rescheduled the surgery for April 8. On April 8, when A. S. reported for surgery, a Center employee sedated A. S., but, after A. S. waited a couple of hours, another Center employee informing her that the surgery could not take place either because Respondent was not coming into work that day or he was in emergency surgery. When A. S. called from home later that day to reschedule the surgery, a Center employee told her that Respondent was in surgery. The employee advised A. S. to call the Center each morning to see if Respondent had any cancellations. A. S. did as advised, but the Center was never able to accommodate her. Subsequently, A. S. sent Respondent two or three letters and left telephone messages for him to contact her on at least ten occasions. Realizing that Respondent and the Center would not perform the revision surgery, A. S. went to another plastic surgery facility in 1998 for work on her right nostril and under her neck. A surgeon repaired the nostril, but, due to financial constraints, could not do all of the work required to repair the damage under A. S.’s neck, which would require about $4000 in surgery. In the meantime, Respondent sent A. S. a card announcing the relocation of his practice to the American Institute for Cosmetic Surgery. A. S. wrote Respondent a letter at his new address, but Respondent never responded. A. S. never sued Respondent. All she wanted was that he perform the revisions that she could not afford to purchase elsewhere so as to reduce or, if possible, eliminate the deformities that Respondent caused surgically. Respondent violated the applicable standard of care in several ways. First, preoperatively, his evaluation of A. S. was scanty. He did not take an ample history, and he did not adequately evaluate her medical status. He did not prepare a surgical plan with a description of all risks and a discussion of these details with the patient. Perhaps most importantly, Respondent never performed a physical examination of A. S. before surgery. Respondent violated the applicable standard of care operatively. The results in this case are so substandard in number and degree as to preclude assigning the outcomes to bad luck, as opposed to a hurried, careless surgery. Respondent violated the applicable standard of care postoperatively. He did not adequately the many problems that he caused. Perhaps most obviously, he failed to adequately treat the open wound in the neck, and he failed to form a plan to address the many revisions necessitated by his careless surgery. The Board of Medicine has previously disciplined Respondent for, among other things, his deviation from the applicable standard of care in treating three plastic surgery patients whose surgery he performed in 1995-96 and 1998.
Recommendation It is RECOMMENDED that the Board of Medicine enter a final order finding Respondent guilty of violating Section 458.331(1)(m), Florida Statutes, in his treatment of A. S. and revoking his license. DONE AND ENTERED this 6th day of December, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2000. COPIES FURNISHED: Tanya Williams, Executive Director Board of Medicine Department of Health Bin C03 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health Bin A02 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health Bin A02 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Kim M. Kluck Carol Gregg Senior Attorneys Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Jerry C. Lingle 1419 Northeast 16th Terrace Fort Lauderdale, Florida 33304
