The Issue The issue for determination in this proceeding is whether the State of Florida, Department of Labor and Employment Security may revoke the self-insurer status of Ponderosa System, Inc. which was granted by the Department for purposes of self insurance under Florida's Workers' Compensation Law, Chapter 440, Florida Statutes. Proposed Recommended Orders have been submitted by the parties and considered by the Hearing Officer. Those proposed findings not included in this Recommended Order were not considered relevant to the issues, were not supported by competent and substantial evidence, or were considered immaterial to the results reached.
Findings Of Fact The Petitioner, Ponderosa System, Inc. (hereafter "Petitioner" or "Ponderosa") is a publicly held corporation listed on the New York Stock Exchange which operates a chain of steak houses in 30 states and nine Canadian provinces. Ponderosa operates or licenses 694 restaurants including 23 in Florida and a portion control and freezer plant in Tampa to service its Florida enterprises. Ponderosa's Florida restaurants and processing plant employed several hundred persons during the past fiscal year. On June 21, 1979, Ponderosa was granted self-insurer status by the Bureau of Workmen's Compensation, Florida Department of Labor and Employment Security (hereafter "Department"), effective July 1, 1979. The approval was based on available financial information which was submitted by Ponderosa to the Department for 1977-75 and which showed a ratio of current assets to current liabilities or "current ratio" for 1975 of $26,465,000 to $25,495,000 or approximately 1.04 to 1.00. A later financial statement was submitted by Ponderosa in August 1980, which revised the current ratio figures previously supplied the Department for fiscal year 1977-75. The revised financial statement showed a current ratio of $25,860,000 to $25,948,000 or approximately .966 to 1.00. The revised figure is attributable to a change in accounting principles prompted by the Petitioner's belief that its continued utilization of a one to one current ratio was an unnecessary business expense, rather than an effort to mislead or misinform the Division at the time of the initial application and approval. The financial data contained in the Petitioner's 1979 and 1980 annual reports and 1951 interim report show current ratios of $39,177,000 to $39,504,000 or approximately .99 to 1, $37,398,000 to $46,899,000 or approximately .80 to 1 and $32,386,000 to $36,592,000 or approximately .89 to 1, respectively. On September 16, 1980, the Department notified Ponderosa that unless a hearing was requested, its self-insurer status would be revoked effective October 17, 1980, for failure to maintain a current ratio of one to one as required by Rule 38F-5.10(2)(a), Florida Administrative Code. No other violation of Chapter 440, Florida Statutes, or any regulations promulgated thereunder was alleged by the Department in any subsequent written notice. The decision to revoke the Petitioner's self-insurer status was based solely on information furnished to the Department by Ponderosa concerning the one to one current ratio, and no independent investigation was made by the Department of Ponderosa's financial position. On September 30, 1980, Ponderosa requested and the Department subsequently denied a waiver of the one to one current ratio requirement of Rule 38F-5.10(2)(a), Florida Administrative Code. The Department has never granted a request for a waiver of the current ratio requirement from any restaurant; its waiver approvals have so far been confined to public utilities. Since it has been granted self-insurer status, Ponderosa has paid and adequately serviced all workers' compensation claims arising in Florida. Additionally, Petitioner has posted a $25,000 surety bond conditioned upon abiding by and performing the requirements of Florida's Workers' Compensation Law with reference to paying or furnishing compensation, medical or surgical services, etc. Ponderosa has obtained an excess liability insurance policy with a retention threshold of $250,000 and a limit of ten million dollars for May 1980 through 1981 which covers its operations in Florida, Indiana, Michigan, Missouri and Pennsylvania. The Petitioner has placed an emphasis on safety in its operations and in order to implement this has established an ongoing safety program and employed consultants to conduct safety programs and inspections. At the time of its application and approval for self-insurance status through the present, Ponderosa has had a net worth of more than $250,000 and more than three times its annual loss fund. Since being approved for self-insurer status on June 21, 1979, Petitioner has not encountered any significant financial problems and its financial condition has not weakened in any material sense. Ponderosa has entered into revolving credit agreements with five financial institutions which require a current ratio of not less than .75 to 1. Pursuant to its revolving credit agreement, Ponderosa has the ability to secure up to $20,008,088 upon demand. Petitioner presently has the financial ability to borrow the funds necessary to create a current ratio of one to one if it were prudent or necessary to do so. Ponderosa has chosen not to borrow from its revolving credit fund in order to have a one to one current ratio because of a number of factors including the significant expense in borrowing, a one to one ratio is not required by its institutional lenders and a one to one current ratio is neither necessary nor prudent from a business perspective. In the industry in which Ponderosa competes, fast food restaurants, generally recognized accounting principles do not require a one to one current ratio, and many major fast food corporations no longer maintain such a requirement. The peculiarities of the fast food industry are such that it is a current cash business with virtually no receivables and often operates on deficit capital. Because of the large sums of cash generated in this industry, fast food restaurants have ample funds to meet current obligations even with a deficit current ratio. For example, fast food restaurants whose financial statements reflect a current ratio of less than one to one include Wendy's (.78 to 1), Gino's (.80 to 1), Horn and Hardart (.97 to 1) and McDonald's (.74 to 1). Only three chains in Florida, New England Oyster House, Denny's and Shoney's, are currently self-insured and meet the one to one ratio. McDonald's has applied for and been denied self-insurer status by the Department. The lack of a current one to one ratio does not indicate that a fast food corporation is in poor financial condition. As indicated, supra, companies which are among the leaders in the industry have current ratios of well under one to one. For the fiscal year ending February 28, 1980, Ponderosa had total revenues of $328,423,000, net income of $13,496,000 and a net worth of $69,309,000. Ponderosa has working capital in an amount that reflects the financial strength and liquidity of its business and is and has been able to pay workers' compensation claims promptly. The Petitioner has the ability to provide workers' compensation benefits to its employees as a self-insurer. Ponderosa is a self-insurer for purposes of workers' compensation in a number of major industrial states including Illinois, Michigan, Pennsylvania, Ohio, Indiana, New York and Missouri. The Petitioner has attempted to self- insure in as many areas as possible in order to limit its insurance costs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the State of Florida, Department of Labor and Employment Security continuing the self-insurer status of Ponderosa System, Inc. and denying the application to revoke that status. DONE and ENTERED this 21st day of January, 1981, in Tallahassee, Florida. SHARYN SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1981.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. During times material, Respondent was a licensed physician in Florida and has been issued license number ME0034265. On March 5, 1985, Respondent treated a patient, ME, a 13 year old child, who presented complaining of headaches. Dr. John D. Handwerker, M.D. is a Department of Professional Regulation consultant who was received as an expert herein in the practice of medicine. Dr. Handwerker reviewed patient ME's medical records for the dates March 5 and 7, 1985. Based on a review of ME's medical records, there is no indication that Respondent performed a physical examination on ME on March 5, 1985. In his treatment of patient ME, Respondent did not indicate on ME's medical records any diagnosis other than the notation that the patient complained of a headache. Respecting ME's headaches, there was no notice in ME's records as to the duration or the time of onset, or what relieved the headache; the occasion or any other precipitating factors. Respondent failed to note in ME's records his observation of her appearance; the responses he received based on questioning ME's mother; the results of certain system examinations that he administered, all of which were negative; no mention of the fact that patient ME fainted in school; failed to note that he heard a heart murmur when he conducted a stethoscope exam on March 5 and was unable to determine, based on his failure to record in ME's medical notes, whether he detected EVC's on March 5 or March 7, 1985. On March 7, Respondent examined patient ME for 15 minutes but failed to note in her medical records the results of the examination. Specifically, Respondent failed to note that he performed a physical examination of ME's thyroid gland; that there was a sonogram ordered of ME's liver without any justification in the patient's record which tended to show that such a procedure was indicated; the patient's notes indicate that a diagnosis was made of ME's "fatty" liver despite the absence of any written justification therefor since ME's liver appeared normal based on a sonogram, and failed to note in ME's records that she was a smoker although this was contrary to her previous response when Respondent performed a pulmonary exam. Respondent performed a PT test and a PTT test on patient ME because she was increasing her intake of aspirin. During his physical examination of ME, Respondent found hematomas throughout her body and he failed to report these findings in her medical records. Respondent also performed an x-ray KUB exam because ME's abdomen was hard and her liver was protruding. ME's medical records do not support Respondent's claim that ME's liver was protruding. Respondent thinks that he referred one of the two patients involved herein, patient ME and patient MM, to a specialist but he could not remember which patient he referred (to a specialist) and his records are not helpful based on the omissions noted herein above. Based on his review of the history and medical notes for patient ME, Dr. Handwerker gave his expert opinion that the tests that Respondent ordered for patient ME and which he subsequently submitted to the insurance company for payment, were not indicated. In Dr. Handwerker's opinion, Respondent thereby failed to practice medicine, with regard to his treatment of patient ME on March 5 and March 7, 1985, with that level of care, skill and treatment which is recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances. He therefore concluded that in the absence of any justification in ME's records for such tests, Respondent therefore engaged in a fraudulent scheme to exploit ME financially. It is so concluded by the undersigned. On or about December 4, 1984, Respondent treated a patient, MM, then a 36 year old female, who complained of feeling "rundown". Dr. Jerry Stolzenberg, director of radiology at Miami Heart Institute, is a consultant with Petitioner and was received as an medical expert in these proceedings. Dr. Stolzenberg reviewed the medical records that Respondent provided for patient MM on January 23, 1986. Patient MM's medical records show that her chief complaints were chest pains, shortness of breath and exhaustion. Respecting the complaints of chest pain and shortness of breath, the records do not indicate the type of chest pains; whether they occurred during the day or night time; whether they occurred during exercise; whether the shortness of breath occurred during exercise or during periods of emotional stress; the duration or whether this condition was a new occurrence. Patient MM's medical records do not indicate that Respondent conducted any physical examination of her. (TR 61). Respondent acknowledged (1) that he failed to complete the physical examination section of patient MM's medical records and (2) that there would be no way to independently document the findings of his physical examination by reviewing his medical records if he was not present to do so. (TR-236). Respecting patient MM's complaint of feeling tired, there was no indication of any physical examination of the thyroid gland and no pertinent history relating to her complaints of feeling tired although Respondent administered a thyroid function test and billed her insurance company for acute thyroiditis. Patient MM was given ultrasound of the thyroid and there was no supporting documentation that Respondent felt a nodule or mass. Although patient MM's liver profile was normal, Respondent administered a ultrasound of the liver. The diagnosis for MM which Respondent submitted to her insurance company indicates she suffered from allergy reaction, arthritis, thyroiditis, liver disease, urinary tract infection and pharyngitis. The medical records and history for patient MM do not contain adequate supporting documentation for this diagnosis. (TR-31, 32). To substantiate this diagnosis, Respondent ruled out liver disease because of the chest pains; thyroiditis was ruled out because of weight problems; urinary tract infection was ruled out because patient MM told him there was "lots of urinary tract infection in her history" and he ruled out renal disorder because MM was not drinking water and she had a rash all over her body. Respondent conceded that there was nothing in patient MM's medical records upon which he can document his statement that MM had a lot of urinary tract infections in her history. Respondent's medical history of MM's physical examination does not show any reference to the urinary infections. Respondent found no indication of patient MM having urinary tract infection yet he ordered a test to rule out urinary tract infection because she had back pain which in his opinion could also indicate urinary tract infection. Respondent ordered a rheumatoid profile because MM experienced pain to the extremities and back although his medical history does not indicate that there was pain in her extremities or cervical spine. Respondent treated MM's back pain by "reassurance" stating that she manifested depression. An examination of MM's medical records reveal no basis for the lipid and renal profiles administered to MM. Likewise, the physical examination and clinical findings do not indicate a basis for the throat culture, urinalysis and urine cultures which were administered to MM. The medical notes for patient MM show no basis for the pharyngitis diagnosis inasmuch as MM did not complain of sore throat. There was no basis for the PTT and the PT tests simply because Respondent found hematomas throughout MM's body. Respondent conceded that any new medical practitioner examining patient MM's medical file would question why the PT and PTT tests were ordered based on the lack of documentation in her medical files. The hematomas are merely physical findings which would not justify ordering the PT and PTT tests. Additionally, the medical records for patient MM reveal no basis for the diagnosis of allergic reactions or arthritis; rashes and allergies or allergic histories. Based upon the history and physical examination, Dr. Stolzenberg opined that there was no justification for any of the testing ordered by Respondent for patient MM except the EKG and the chest x-ray. Based thereon, and Respondent's failure to keep adequate written medical records to justify the course of his treatment, Dr. Stolzenberg opined and concluded that Respondent failed to practice medicine with a level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. It is so found by the undersigned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That Respondent's physician license number ME0034265 be suspended for a period of six (6) months with the further recommendation that five (5) months of that suspension be suspended provided Respondent enroll in, and successfully complete, a course dealing with the proper procedures for recording and maintaining medical records justifying, inter alia, the course of treatment of patients including patient histories, examinations and test results. RECOMMENDED this 2nd day of June, 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1987. COPIES FURNISHED: Joel S. Fass, Esquire Colodny, Fass & Talenfeld, P.A. 626 N. E. 124 Street North Miami, Florida 33161 Paul Watson Lambert, Esquire Taylor, Brion, Buker & Greene, P.A. Post Office Box 11189 Tallahassee, Florida 32302 Dorothy Faircloth Executive Director Department of Professional Regulation, Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
The Issue Administrative determination of validity of Rule 22B-1.05(3)(b), Florida Administrative Code, pursuant to Section 120.56, Florida Statutes.
Findings Of Fact The Petitioners have been employed with the Metro Dade County Department of Public Safety as fingerprint technicians for approximately two and one-half years. They perform identical duties in the identification section of the department and both have completed the required police officer minimum standards training. They are sworn regular deputy sheriffs and are on call to enforce the law on a twenty-four hour day basis. However, normally they work a regular shift in the identification section which primarily involves fingerprinting of individuals at that location and examination of crime scenes, vehicles, weapons and other items for latent fingerprints. They must be available to respond to emergency situations and provide assistance in disasters or cases of mass arrests. In connection with their duties, they are required to regularly bear a firearm and qualify periodically in firearms training. They have arrest powers and may be called upon to arrest or assist in the arrest of violators of the law. In the course of their duties at the identification section, they maintain physical custody of individuals being detained in criminal cases. Occasionally, it is necessary to employ force to process recalcitrant or aggressive detainees or prisoners. These officers have received threats from prisoners in the past and consider themselves to be under a certain amount of stress as a result of such incidents in the performance of their duties. (Testimony of Blynn, Crawford, Exhibits 3-4) In the spring of 1977, both Petitioners filed applications with Respondent Division of Retirement for special risk membership in the Florida Retirement System. Their employer certified that their positions were hazardous and met the statutory and regulatory requirements for special-risk membership. They were advised by identical letters from Robert L. Kennedy, Jr., State Retirement Director, on August 12, 1977, that their job descriptions did not support the statement on their application that their primary duties and responsibilities in the position required them to regularly hear a firearm or other weapon, apprehend and arrest law violators or suspected law violators, and to maintain physical custody of prisoners within a prison or detention facility or while being transported. The letters stated: "Accordingly, I am not able to conclude that your continued performance of these duties beyond fifty-five, normal retirement age for special risk members, would jeopardize your physical or mental well-being." The letter further stated that since they did not meet the criteria established by Rule 22B-1.05 C. 2., Florida Administrative Code, nor meet any of the additional criteria in subparagraphs A through D of the rule, the applications were denied, reserving, however, the right for Petitioners to submit revised job descriptions that might more accurately describe their primary duties and responsibilities. Thereafter, on September 1, 1977, the director of the Metropolitan Dade County Public Safety Department wrote to Mr. Kennedy and submitted a revised job description which emphasized the requirement that fingerprint technicians maintain physical custody of prisoners in the course of their duties. However, by letter of November 8, 1977, Kennedy informed the Petitioners that the additional information did not provide adequate information that their continued performance of duties beyond age fifty-five would jeopardize their physical or mental well-being and adhered to his original decision. Petitioners thereafter challenged the decision in separate current administrative proceedings and also filed the present rule challenge. (Exhibits 3,4) Applications for special risk membership are referred to staff personnel in the Division of Retirement who prepare a recommendation of approval or disapproval for the Director of Retirement. After further review by she division legal staff, the decision is made by the director based on the criteria of the division rules and any applicable court decisions. There is no "check list" or other detailed standards or requirements upon which such decisions are based. The retirement director determines on an ad hoc basis as to whether or not an employee is engaged in such duties as to indicate a need for early retirement because of the hazardous or strenuous type of work involved in the primary duties of particular position. The director based his decision to deny special-risk membership to Petitioners because their primary duty was fingerprint technician and he was being consistent with previous decisions in which fingerprint technicians in other areas of the state had been denied special-risk membership. Although a number of fingerprint technicians in the Dade County Public Safety Department do hold special-risk membership, their membership was approved prior to the requirement that job descriptions be furnished along with the application for membership. The division has no staff personnel who are medically qualified, nor has any study been done of the effect on the physical and mental well-being of individuals who perform such duties. (Testimony of Kennedy - Depositions Exhibits 5, 6) The history of Rule 22B-1.05(3)(b) , Florida Administrative Code, shows that it was originally promulgated on January 1, 1972, as Rule 22B-1.05C. It was substantially amended on October 20, 1972, to read as follows: The criteria which shall be used by the employer and the Administrator in determining that a position shall be classified as a special-risk position are: It must first be determined that the position falls into the category of peace officer, law enforcement officer, policeman, highway patrolman, custodial job in a correctional agency employee whose duties and responsibilities involve direct contact with inmates, but excluding secretarial and clerical employees, fireman, or any other job in the field of law enforcement or fire protection. Once it is determined that the position falls into one of the categories of positions enumerated in (1), the positian shall be considered hazardous and classified as special risk if in the judgement of the administrator, continued performance of the primary duties and responsibilities of the position beyond the normal retirement age for a special-risk member will constitute a hazard to the public and the member's fellow workers or will jeopardize the physical and well-being of the member, and at least one of the following statements applies to the position: The duties and responsibilities of the position require that the incumbent regularly bear a firearm or other weapon. The incumbent of the position in the performance of his primary duties and responsibilities is required to apprehend and arrest law violators or suspected law violators. The primary duty and responsibility of the incumbent of the position is to maintain physical custody of prisoners within a prison or detention facility or while being transported. The duties and responsibilities of the position require that the incumbent fight fires, other than controlled fires set for instructional purposes. (Emphasis Added) On December 31, 1974, the rule was again adopted after a public hearing to meet the requirements of the new Administrative Procedure Act. On August 9, 1976, the portion of Rule 22B-1.05 C. 2. that stated "will constitute a hazard to the public and a member's fellow workers" was repealed to comply with a court decision rendered in Florida Sheriffs Association v. State of Florida, Department of Administration, Division of Retirement, 332 So.2d 36 (Fla. 1st DCA 1976). The notice of this intended action as required by Section 120.54(1), F.S., contained the following statement: "ESTIMATE OF ECONOMIC IMPACT ON ALL AFFECTED PERSONS: The repeal of this rule will not have any economic impact." On January 16, 1977, Rule 22B-1.05 was further amended to add a new subparagraph D which established procedures for applying for special-risk membership and for the disposition of applications for such membership. Subparagraphs A through C were unchanged. In the notice of the agency's intended action, it was stated: "ESTIMATE OF ECONOMIC IMPACT: This rule is procedural in nature and therefore has no economic impact." At some unknown date thereafter, Rule 22B-1.05C was renumbered and is presently shown in the Florida Administrative Code as 22B-1.05(3). (Composite Exhibit l)
The Issue The issues in this case are whether Respondent: (1) made deceptive, untrue, or fraudulent representations in or related to the practice of medicine; (2) failed to keep appropriate medical records with respect to Patient T.G.; (3) fell below the minimum acceptable standard of care in his treatment of T.G.; misrepresented or concealed a material fact during the course of the disciplinary process; and/or (5) improperly interfered with Petitioner's investigation. If so, it will be necessary to determine whether Petitioner should impose discipline on Respondent's medical license within the applicable penalty guidelines, or take some other action.
Findings Of Fact At all times relevant to this case, Dr. Choy was licensed to practice medicine in the state of Florida, having been issued license number ME 74815. The Department has regulatory jurisdiction over licensed physicians such as Dr. Choy. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. Here, the Department has charged Dr. Choy with medical malpractice, which is a disciplinable offense pursuant to section 458.331(1)(t)1, Florida Statutes, both for allegedly failing to inform his patient, T.G., that a CT scan performed in June 2008 revealed the presence of a potentially malignant tumor in her pancreas, and for failing to refer T.G. to a specialist for further investigation of this finding. The Department alleges, as well, that, after an attorney representing T.G.'s family contacted Dr. Choy following T.G.'s death in 2010, Dr. Choy altered his medical records to make it appear as though he not only had informed T.G., in and after June 2008, that she might have pancreatic cancer, but also had urged her repeatedly to see a specialist. Based on these allegations,1/ the Department has charged Dr. Choy with: one, making deceptive, untrue, or fraudulent representations in the practice of medicine, an offense under section 458.331(1)(k); two, failing to keep legally sufficient medical records in compliance with Florida Administrative Code Rule 64B8-9.003, an offense under section 458.331(1)(m); and, three, misrepresenting or concealing material facts during, and improperly interfering with, a disciplinary proceeding, which are separate offenses under sections 458.331(1)(gg) and 458.331(1)(hh), respectively. The events giving rise to this dispute began on May 13, 2008, when Dr. Choy's longtime patient, T.G., presented with complaints of left lower quadrant pain and a change in bowel habits. T.G., who was then 77, had a number of medical conditions for which she had been seeing Dr. Choy, including diabetes, hypertension, depression, heart disease, and arthritis. Reviewing the results of blood work ordered the previous month, Dr. Choy diagnosed T.G. with anemia and ordered another blood test to determine if the condition persisted. In addition, Dr. Choy ordered a CT scan of T.G.'s abdomen and pelvis. T.G. went to the lab to have blood drawn on May 13. The next day, Dr. Choy received the test results, which showed that T.G. remained anemic. Dr. Choy suspected that T.G. might have colon cancer. He made a note on the lab report that T.G. should be prescribed a medication for her anemia and that she needed to "be referred to a GI specialist for eval[uation]." Following the customary procedure in Dr. Choy's office, an employee called T.G. on May 19 to inform her of these instructions and wrote "5/19 done" at the top of the lab report. T.G. underwent the CT scan of her abdomen and pelvis on June 17, 2008. The radiologist's three-page report was faxed to Dr. Choy on June 19. On the first page of the report, which discusses the abdominal scan, it is stated that "[t]here is a large lobulated malignant tumor mass in the tail of the pancreas . . . ." On the next page, the third of four enumerated impressions based on the abdominal CT scan reads: "Large malignant tumor mass tail of the pancreas as described." Also on page 2, following the report of the abdominal procedure, is the interpretation of the pelvic CT scan, which resulted in a finding of diverticulosis but was otherwise negative. Dr. Choy reviewed the report and wrote "ok" on page 1, next to the first impression from the abdominal scan, which was: "Old healed calcified granulomatous disease right lower lobe." On page 2, adjacent to the impressions from the pelvic scan, Dr. Choy wrote the following note:2/ At some point after Dr. Choy wrote the foregoing note, the report was scanned into his office's electronic medical records system. Also, a hard copy of the report of T.G.'s CT scan was placed in a traditional patient chart, as was done with all lab reports that Dr. Choy's office received. On June 19, 2008, someone from Dr. Choy's office called T.G. at 3:34 p.m. and spoke with her (or someone in her home) for nearly five minutes. Dr. Choy testified that he personally placed this call, a claim the Department disputes. The identity of the caller is immaterial, however, because the main purpose of the call was, most likely, to schedule an appointment for T.G., so that Dr. Choy could go over the recent blood work and CT scan with T.G. in person. T.G. was not told during this phone call about the tumor that had been observed in her pancreas, but she was probably given Dr. Choy's recommendations for managing diverticulosis, as indicated by a handwritten note at the top of page 2 of the CT scan report, which says, "6/19/08 Done." T.G. returned to Dr. Choy's office on June 30, 2008. Unfortunately, there is no reliable contemporaneous record of what Dr. Choy communicated to T.G., if anything, about the finding of a tumor in her pancreas. Dr. Choy testified that he did not use words such as "cancer" or "mass" in front of T.G., both to avoid upsetting her and because he is a "soft person" who "hate[s] to give people bad news." Dr. Choy thinks that he might have told T.G. there was a "spot" on her pancreas (although he is not sure he used that term), and he clearly recalls having advised T.G. to "see a specialist" because——he recalls telling her——although he "didn't know what it was," it "could be bad." The Department disputes that Dr. Choy said even that much. In support of its position that Dr. Choy failed to disclose to T.G. the radiologist's finding of a pancreatic tumor, the Department focuses on Dr. Choy's electronic medical records, in which——as originally prepared——he made no mention of a pancreatic mass. For example, at the time of T.G.'s June 30, 2008, visit, Dr. Choy wrote that the patient did not have "[a]bdomenal [sic] pain," and he typed the following notes regarding his impressions and diagnoses: ZZ-Dr Peter V Choy; Z-VP EKG; Anemia Iron Deficiency – 2809 repeat Test if no Improvement we will refer pt to GI evaluation;Diabetes w/ unspecified complication-250.90; Hyperlipidemia-2724; Hypertension-4019; Hypertensive Heart Disease without HF 402.90; Hypothryoidism- 2449; Declining Function-7993; Depression- 311; Vertigo-7804 This record, made at or around the time of the June 30, 2008, visit, is silent about the potentially malignant tumor that had recently been seen in T.G.'s pancreas. Dr. Choy testified that his contemporaneous records are not silent as to the pancreatic mass because when he saw T.G. on June 30, 2008, he wrote an additional note on the hard copy of the CT scan report, creating the following:3/ That Dr. Choy inserted the reference to a pancreatic tumor after June 19, 2008, is proved by the existence of the digital copy of the CT scan report——converted via scanner from paper to electronic file that day——which does not contain the reference. Because Dr. Choy did not put a date on the subsequent note, however, his testimony is the only evidence that it was made on June 30, 2008. The Department contends that Dr. Choy's testimony in this regard is not credible. The undersigned agrees with the Department. There are a number of reasons for rejecting Dr. Choy's testimony. To begin, Dr. Choy's account requires one to imagine that, when making his original notes, Dr. Choy jotted down a treatment plan for diverticulosis while simultaneously failing to acknowledge the ominous finding of a pancreatic tumor, despite being aware of the potentially terminal condition. Further, Dr. Choy would have the undersigned believe that, just as he was soft-pedaling the CT scan results in conversation with T.G., he was writing "malignant tumor" on the report——using the type of words he (credibly) denies uttering in T.G.'s presence. The reference to the pancreatic tumor looks out of place, moreover, in the section of the report discussing the pelvic scan, which did not find the mass, atop the previous notes relating to diverticulosis, which the pelvic scan did reveal. Finally, there is the undisputed fact, which will be discussed in depth below, that Dr. Choy altered many other medical records after questions were raised concerning his treatment of T.G.—— and particularly about whether he had told her she might have pancreatic cancer. In sum, the undersigned does not credit the annotated CT scan report as evidence tending to establish that Dr. Choy notified T.G. in June 2008 that there was a suspicious mass in her pancreas. The next time T.G. saw Dr. Choy was September 3, 2008. The entries that he made in the patient's electronic medical record for this visit were, originally, silent about the possibility that T.G. might have cancer of the pancreas. He noted that T.G. was "[d]oing well with no change in clinical status" although she reported "[a]domenal [sic] [p]ain," which she had not complained about on June 30, 2008. Dr. Choy recorded T.G.'s various diagnoses in the electronic patient chart, making no mention of the pancreatic mass. This pattern was repeated during the several visits which followed, on January 19, 2009; February 11, 2010; and March 31, 2010. Dr. Choy's contemporaneous records of these visits say nothing about T.G.'s pancreatic tumor or his efforts, if any, to follow the condition. When T.G. returned to Dr. Choy's office on June 24, 2010, she complained of abdominal pain and abnormal weight loss. Dr. Choy reviewed T.G.'s blood tests, which indicated that she was again anemic and might have liver disease. Concerned, and having forgotten the 2008 scan, Dr. Choy ordered additional blood tests and a CT scan of T.G.'s abdomen and pelvis. After leaving Dr. Choy's office, T.G. went to the lab, where her blood was collected on June 24. The test results, which were reported on June 28, 2010, showed that her platelets were low, suggesting a blood disorder. For that reason, Dr. Choy referred T.G. to Dr. Luis Villa, a hematologist and oncologist whom T.G. had wanted to see. Dr. Villa saw T.G. on July 1, 2010. In a letter to Dr. Choy that he prepared on the same day, Dr. Villa advised that T.G. "look[ed] great; certainly, younger than her stated age." Dr. Villa believed that laboratory data for T.G. were suggestive of chronic liver disease, and he recommended that Dr. Choy order additional tests. Dr. Villa informed Dr. Choy that he had "reassured [T.G.] that there is nothing acute here that necessitate[s] immediate attention." On July 7, 2010, T.G. returned to Dr. Choy's office for a follow-up visit. During this visit, Dr. Choy noted Dr. Villa's recommendation and recorded (for the first time) a differential diagnosis of "potential malignancy," to be ruled out. Dr. Choy ordered more tests, including an abdominal CT scan. T.G. underwent a CT scan on July 15, 2010, her second, two years after the previous scan had first detected a pancreatic mass. A report of the results of this CT scan was delivered to Dr. Choy's office on July 16, 2010. The report indicated that T.G. had "a large mass at the level of the pancreatic tail." T.G. had an appointment to see Dr. Choy for a follow- up examination on July 19, 2010. That morning, however, T.G.'s son, being worried about how weak T.G. suddenly had become, took her directly to the hospital, without stopping at Dr. Choy's office. Dr. Choy signed the order to admit T.G. to Mercy Hospital, where she was received on July 19 at 1:11 p.m. carrying a diagnosis of pancreatic cancer with possible metastasis to the liver. Although Dr. Choy did not see T.G. in his office that day, as expected, a record of the upcoming visit was created in Dr. Choy's electronic medical records system. Somehow, a record of the canceled visit was thereafter transmitted to T.G.'s HMO as if Dr. Choy had seen T.G. in his office as scheduled, making it appear that he had performed an examination which in fact had not occurred. The Department alleges that Dr. Choy submitted a false insurance claim in connection with the canceled appointment. This contention is rejected as unproved. There is no persuasive evidence that Dr. Choy received any payment for the July 19th appointment which, as it happened, T.G. could not keep, and more important, the evidence is insufficient to establish, clearly and convincingly, that Dr. Choy intended to deceive the HMO. The simplest and likeliest explanation for the July 19th office- visit note is that, owing to the unexpected change of plans, someone got the paperwork confused and made a mistake. The day after she was admitted to Mercy Hospital, T.G. underwent a liver biopsy, which revealed a "metastatic tumor of pancreatic origin." Sometime in July 2010, after the pathology report confirmed T.G.'s diagnosis, T.G.'s family requested that Dr. Choy's office provide them with copies of T.G.'s medical records. Dr. Choy's staff complied with this request, printing the electronic medical records on July 27, 2010, and delivering them to a family member. The set of records provided at this time went back only as far as January 19, 2009, and thus omitted the notes for T.G.'s appointments with Dr. Choy in 2008. On August 8, 2010, T.G. passed away due to liver disease and acute renal failure. On August 19, 2010, Dr. Choy received a letter from an attorney representing T.G.'s family, which requested copies of T.G.'s records. At this point, Dr. Choy feared that T.G.'s family would bring a medical malpractice lawsuit against him, and he "panicked" because he had never been sued before and did not have liability insurance. On reviewing the records, Dr. Choy concluded that some of the language was "ugly" and "didn't look right" as written. Wanting to make the records "as presentable as possible" for the lawyer, Dr. Choy decided to edit the electronic text. He then proceeded to delete some entries and add others without identifying any of the alterations. As a comparison of the original text to the revised text clearly reveals, Dr. Choy's self-confessed concern was obviously owing to the remarkable absence of any notes in the medical records pertaining to the possibility that T.G. might have pancreatic cancer as stated in the radiologist's report interpreting the June 2008 CT scan. This is apparent from the fact that, without significant exception, the sole purpose of the alterations is plainly to correct that particular, glaring deficiency. The covertly amended records convey the impression that Dr. Choy timely informed T.G. of the CT scan results and repeatedly urged her to see a specialist to investigate the findings further. Indeed, if one were unaware of the original, unaltered records, his review of the revised records would provide little or no cause to criticize Dr. Choy's handling of T.G.'s case. The inevitable inference is that Dr. Choy knew the original records would be persuasive, if not conclusive, evidence of his failure to inform T.G. of her potentially fatal condition, in violation of the standard of care, so he secretly (or so he thought) doctored the records to turn them into evidence that he had satisfied the standard of care. To see just how incriminating the alterations are, it is helpful to place the original and revised texts, respectively, side-by-side, as below. In the following table, the language printed in boldface identifies deletions from the original, contemporaneous record and additions to the much-later revised record (misspellings in original): Visit Date Contemporaneous Record Revised Record 6/30/08 ZZ-Dr Peter V Choy; Z-VP ZZ-Dr Peter V Choy; Z-VP EKG; Anemia Iron EKG; Anemia Iron Deficiency Deficiency – 2809 repeat – 2809 And abdominal pain Test if no Improvement we with and abnormal CT scan. will refer pt to GI We will refer pt to GI evaluation;Diabetes w/ evaluation for possible GI unspecified complication- malignancy of the 250.90; Hyperlipidemia- Pancreas;Diabetes w/ 2724; Hypertension-4019; unspecified complication- Hypertensive Heart Disease without HF 402.90; Hypothryoidism- 2449; Declining Function- 7993; Depression-311; Vertigo-7804 250.90; Hyperlipidemia- 2724; Hypertension-4019; Hypertensive Heart Disease without HF 402.90; Hypothryoidism-2449; Declining Function-7993; Depression-311; Vertigo- 7804 9/03/08 A- Medically Stable; ZZ- Dr Peter V Choy; Z-VP EKG; Diabetes w/ unspecified complication- 250.90; Hyperlipidemia- 2724; Hypertension-4019; Hypertensive Heart Disease without HF 402.90; Hypothryoidism- 2449; Declining Function- 7993; Depression-311; Vertigo-7804 -; Abdominal Pain Unknown ET – 78900; Anemia – 2859 Pt was advice again to see a GI Dr. The possibility of a Ca of the pancreas was discuss with the pt; ZZ-Dr Peter V Choy; Z-VP EKG; Diabetes w/ unspecified complication-250.90; Hyperlipidemia-2724; Hypertension-4019; Hypertensive Heart Disease without HF 402.90; Hypothryoidism-2449; Declining Function-7993; Depression-311; Vertigo- 7804 1/19/2009 Malaise and Fatigue and Malaise and Fatigue and Other -780.79; Declining Other -780.79; Declining Function-7993; Dizziness Function-7993; Dizziness and Giddiness - and Giddiness - 780.4;Diabetes mellitus 780.4;Diabetes mellitus Uncontrolled-25002; ZZ- m Uncontrolled-25002; ZZ- m Resently admitted to BH Resently admitted to BH with CHF Possible angina with CHF Possible angina Pectoris before Pectoris before admittion admittion Dr. Peter V Weight Loss Abnormal- Choy; Z-VP EKG; Diabetes 783.21; Abdominal Pain w/ unspecified Unknown ET – 78900 Possible complication-250.90; ca of the Pancreas; ZZ-Dr. Hyperlipidemia-2724; Peter V Choy; Z-VP EKG; Hypertension-4019; Diabetes w/ unspecified Hypertensive Heart complication-250.90; Disease without HF Hyperlipidemia-2724; 402.90; Hypothryoidism- Hypertension-4019; 2449; Declining Function- Hypertensive Heart Disease 7993; Depression-311; without HF 402.90; Vertigo-7804; Congestive Hypothryoidism-2449; Heart Failure-428.0 Declining Function-7993; associatted with Actos Depression-311; Vertigo- 7804; Congestive Heart Failure-428.0 2/11/10 A- Medically Stable; ZZ- Dr Peter V Choy; Z-VP EKG; Trigger finger on the right great finger.; Contusion Foot-924.20; Back Pain Lower-7242 and in the thoracic area;Diabetes w/ unspecified complication- 250.90; Hyperlipidemia- 2724; Hypertension-4019;; Congestive Heart Failure- 428.0; Hypothryoidism- 2449; Back Pain Lower- 7242; Neuropathy Peripheral-3569 Trigger finger on the right great finger.; Contusion Foot-924.20; Back Pain Lower-7242 and in the thoracic area;Diabetes w/ unspecified complication- 250.90; Hyperlipidemia- 2724; Hypertension-4019;; Congestive Heart Failure- 428.0; Hypothryoidism-2449; Back Pain Lower-7242; Neuropathy Peripheral-3569 3/31/10 A- Medically Stable; ZZ- Dr Peter V Choy; Z-VP EKG;Diabetes w/ unspecified complication- 250.90; Hyperlipidemia- 2724; Hypertension-4019;; Hypothryoidism-2449; Back Pain Lower-7242; Neuropathy Peripheral- 3569; Hypertensive Heart Disease with HF 402.91 Dr Peter V Choy; Z-VP EKG; Weight Loss Abnormal-783.21 Again case was discuss with the Pt and she was advice of the abnormal finding;Diabetes w/ unspecified complication- 250.90; Hyperlipidemia- 2724; Hypertension-4019;; Hypothryoidism-2449; Back Pain Lower-7242; Neuropathy Peripheral-3569; Hypertensive Heart Disease with HF 402.91 The alterations are clear and convincing proof of the material fact that Dr. Choy did not tell T.G. that the June 19, 2008, CT scan report stated she had a "[l]arge malignant tumor mass" in her pancreas, for a simple reason: he was unaware that a tumor mass was described in the report. This latter fact is evident from Dr. Choy's alarm, in August 2010, about the deficiencies in the records. Why, only then, did Dr. Choy realize that the records "didn't look right?" What did Dr. Choy know, without question, in August 2010, that he might not have known earlier? The answer, of course, is that in August 2010 Dr. Choy knew that the 2008 CT scan report disclosed the existence of a large mass in T.G.'s pancreas, a grave finding that should have been conspicuously noted in T.G.'s medical records. Dr. Choy's admission that the records looked "ugly" to him in August 2010 is revealing because, in fact, the records look bad only in the light of the 2008 CT scan results; but for that report, they would appear to be at least adequate, notwithstanding a few typographical errors. The bottom line is that if the CT scan report had contained no references to a pancreatic mass, then T.G.'s original medical records would have looked alright. The undersigned readily infers, therefore, without hesitation, that T.G.'s medical records looked fine to Dr. Choy when he originally wrote them because, when he originally wrote them, he was unaware that the 2008 CT scan report described a tumor mass in T.G.'s pancreas. Only later, after learning the full contents of the 2008 CT scan report, did the incriminating nature of the contemporaneous medical records become clear to Dr. Choy, who then, in his panic, made the costly mistake of tampering with the evidence. Dr. Choy's failure to read the 2008 CT scan report closely enough to take notice of its critical finding regarding T.G.'s pancreas, whatever the cause of that failure was, is sufficient to explain his failure to tell T.G. that she might have pancreatic cancer. Simply put, Dr. Choy did not tell T.G. about the pancreatic mass because he did not know of its existence. The parties stipulated that the minimum standard of care required that, within a reasonable time after June 19, 2008, Dr. Choy both: (1) notify T.G. that the results of the June 2008 CT scan suggested she had a mass in her pancreas; and (2) refer T.G. to an appropriate specialist for further evaluation and treatment of the pancreatic mass. Being unaware of the finding regarding a pancreatic mass, Dr. Choy did neither. Thus, his treatment of T.G. fell below the standard of care. T.G.'s family ultimately elected not to sue Dr. Choy, but in July 2011, T.G.'s son filed a complaint with the Department alleging that Dr. Choy had provided T.G. with substandard care. This consumer complaint set in motion the investigation which led to the instant proceeding. In connection with its investigation, the Department requested a copy of all T.G.'s electronic medical records from Dr. Choy going back to T.G.'s first visit in 1999. These medical records were printed from Dr. Choy's office computer system on July 27, 2011, and delivered to the Department in August 2011. On August 23, 2011, a Department investigator interviewed Dr. Choy regarding his care of T.G. The investigator——who was in possession not only of the recently produced records, but also copies of the records Dr. Choy's office had provided to T.G.'s family back in July 2010, before Dr. Choy had tampered with the electronic documents——asked Dr. Choy to explain why there were two different versions of the office notes for T.G.'s January 19, 2009, visit. After some initial hesitation, Dr. Choy admitted that he had altered the records to reinforce his case after learning he might be sued for malpractice. During the course of discovery in this proceeding, the Department asked Dr. Choy whether he had made any other changes to T.G.'s records besides the ones previously identified. Dr. Choy compared the printouts of T.G.'s untampered-with records given to the family in July 2010, which covered office visits from January 19, 2009, forward, to the fabricated versions provided to the Department in August 2011, and was unable to identify any additional changes. Neither the Department nor Dr. Choy was able to retrieve copies of T.G.'s original electronic records for the office visits prior to January 19, 2009, because Dr. Choy had overwritten the computer files when he altered the documents in August 2010. Consequently, the Department retained a forensic computer expert, who managed to recover the authentic records from a backup. Armed at last with a full set of T.G.'s medical records as they had looked on the dates Dr. Choy saw T.G., the parties were finally able to identify the changes Dr. Choy subsequently made to the office notes for the visits of June 30 and September 3, 2008. Ultimate Factual Determinations The Department has established by clear and convincing evidence that Dr. Choy made deceptive, untrue, or fraudulent representations in the practice of medicine. He did so by deliberately altering T.G.'s medical records with the intention of fabricating evidence to support his claim that he had timely informed T.G. about the mass in her pancreas, when in fact the authentic, contemporaneous records make no mention of the pancreatic mass. Dr. Choy is therefore guilty of the offense defined in section 458.331(1)(k), Florida Statutes. The Department has established by clear and convincing evidence that Dr. Choy failed to identify, as such, any of the material, after-the-fact revisions he made to T.G.'s medical records, so that the office notes appeared to be contemporaneous accounts of the patient's course of treatment, when in fact they were not, in violation of Florida Administrative Code Rule 64B8- 9.003(4). Dr. Choy is therefore guilty of the offense defined in section 458.331(1)(m). The Department has established by clear and convincing evidence that Dr. Choy committed medical malpractice in his treatment of T.G., by failing to timely inform her of the pancreatic mass seen in the CT scan in June 2008, and by failing to timely refer T.G. to a specialist for further investigation of the mass. Dr. Choy is guilty of the offense defined in section 458.331(1)(t)1. The Department has established by clear and convincing evidence that Dr. Choy concealed the material fact that he had altered the original, contemporaneous records of T.G.'s care and treatment when he knowingly produced T.G.'s revised medical records to the Department in August 2011 without disclosing that the records were not what they purported to be. Dr. Choy is guilty of the offense defined in section 458.331(1)(gg). The Department failed to prove that Dr. Choy interfered with its investigation. Dr. Choy was reasonably cooperative throughout the investigation, during the course of which, however, he committed the additional offense of concealing a material fact from the Department, for which he will be disciplined. Dr. Choy is therefore not guilty of the offense defined in section 458.331(1)(hh).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Dr. Choy guilty of the offenses described in sections 458.331(1)(k), 458.331(1)(m), 458.331(1)(t)1, and 458.331(1)(gg), Florida Statutes. It is further RECOMMENDED that the Board of Medicine revoke Dr. Choy's medical license and impose an administrative fine of $4,000. DONE AND ENTERED this 15th day of April, 2014, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 15th day of April, 2014.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: GENERAL At all times material to this proceeding, Respondent, Brian A. Lasseter was a licensed physician in the state of Florida, having been issued license number ME 0033303 by the state of Florida. This matter arose as a result of the Petitioner reviewing the hospital records of 14 patients hospitalized and treated by Respondent at Waterman Memorial Hospital (Waterman), Eustis, Florida, between June, 1980 and June, 1983. The Petitioner's experts, Dr. Yelverton and Dr. Marley, did not review Respondent's office records of the patients material to this proceeding prior to testifying. However, both Dr. Yelverton and Dr. Marley reviewed the hospital records prior to testifying. There was no evidence that any of Respondent's patients material to this proceeding complained of Respondent's treatment or lack of treatment, or Respondent's failure to correct the medical problem presented by the patient through the surgery performed by Respondent. The Respondent used what he described as the "open-technique" in all transabdominal hysterectomies (TAH) performed on the patients material to this proceeding. There was sufficient evidence to show that by using the "open- technique" the Respondent was able to make certain anterior and posterior vaginal repair, such as correcting a mild to moderate cystocele (a hernia of the urinary bladder into the vagina), to help a rectocele (a hernia protrusion of the rectum into the vagina), to a mild degree, to correct stress urinary incontinence (SUI)(inability to control urine when coughing, sneezing, etc.), and to help suspend other prolapsed tissue. The Respondent learned the "open-technique" procedure from doctors who were practicing at the Orlando Regional Medical Center while Respondent was in training there. Neither Dr. Marley nor Dr. Yelverton were familiar with the "open- technique" and had not had that procedure described to them by the Respondent. There was insufficient evidence to show that the use of the "open- technique" as a procedure to be used concurrently with a TAH to correct certain anterior or posterior vaginal repair, to correct SUI and to help suspend other prolapsed tissue was practicing medicine below acceptable medical standards as is contemplated by Section 458.331(1)(t), Florida Statutes (1979). Patient, K. G. W. Medical Record No. 03-53-61 K. G. W. was one of Respondent's female patients, born September 14, 1946, upon whom Respondent performed a bilateral tubal ligation (BTL) on January 8, 1981. On April 9, 1982, K. G. W. visited Respondent's office for a routine examination. The examination revealed a cervical polyp. Dilatation and curettage (D&C) and polypectomy procedures were performed on K. G. W. by the Respondent on April 23, 1982 in Waterman. A sample of tissue from the uterus was sent to the pathology laboratory for testing. The results of the tests revealed the presence of trophoblastic activity (tissue). Trophoblastic tissue is the pathological term for products of conception or placental tissue. The significance of the trophoblastic tissue being present in this patient is that most likely she had conceived, notwithstanding the previous BTL, and had suffered a miscarriage. Neither the BTL procedure performed on January 8, 1981, nor the D & C/polypectomy procedure performed on April 23, 1982, are in contention in this proceeding. On April 27, 1982, K. G. W. had a follow-up office visit with the Respondent concerning the operation performed on April 23, 1982. Respondent explained to K.G.W. and her husband during this visit that she had conceived, notwithstanding the BTL, and had miscarried. He further explained the presence of trophoblastic tissue and the diagnosis of possible trophoblastic disease. The Respondent's office notes concerning this visit indicate the presence of trophoblastic activity with this patient for the previous 2 1/2 years. Apparently this was the basis for Respondent's diagnosis of possible trophoblastic disease since no further testing was performed until the patient's admission to Waterman on April 12, 1982. Based on her discussion with the Respondent, the patient (with husband's approval) consented to a TAH to prevent conception in the event of a failed BTL and to control possible trophoblastic disease. K. G. W. was admitted to Waterman on May 11, 1982 by Respondent and scheduled for a TAH and posterior vaginal repair on May 12, 1982. Respondent performed the TAH using the "open-technique" on May 12, 1982 and made the necessary posterior vaginal repair. The admitting, preoperative, postoperative and final diagnosis was trophoblastic disease. Trophoblastic disease is a condition where placental tissue becomes abnormal and can develop either a malignant process called a hydatidiform mole or a choriocarcinoma. A choriocarcinoma is a malignant process that can be fatal. Where trophoblastic disease is suspected in a patient, as Respondent suspected in this patient, a test known as H.G.C. Titer should be performed serially, usually weekly, to determine whether the hormone qonadotropin chorionic is rising or falling. The hormone qonadotropin chorionic is secreted by the placenta at the time of pregnancy, and the H.G.C. Titer measures the level of this hormone in the bloodstream. In a trophoblastic disease situation where there is a hydatidiform mole or choriocarcinoma developing, the titer will rise in a precipitous fashion to a very high level. An H.C.G Titer was ordered by the Respondent for the patient at the time of her admission on May 12, 1982. The result of this test showing the lowest level of qonadotropin chorionic, meaning a non-pregnant state, was reported to Respondent by Dr. William W. Conner, M.D. on May 14, 1982. Respondent ordered no further testing for the hormone qonadotropin chorionic after May 12, 1982, including the time after the patient's discharge from Waterman. Also the Respondent did not order any testing for the hormone between April 23, 1982, the date of the pathology report showing trophoblastic tissue in the patient, and the time of the test on May 12, 1982, to support his diagnosis of trophoblastic disease. The more prudent approach in this case may have been further testing and evaluation to confirm or rule out trophoblastic disease if Respondent suspected this possibility, even though the patient's records do not support this diagnosis. There is sufficient evidence in this case to show that the Respondent was practicing medicine within acceptable medical standards considering that the patient wanted a hysterectomy to prevent further pregnancies and the potential for troproblastic disease. However, there is insufficient documentation in the patient's records to justify the course of treatment for this patient. Patient E. A. K., Medical Record No. 03-13-09 E. A. K. was one of Respondent's female patients born July 22, 1948, with a history of chronic pelvic inflammatory disease (PID). PID is the inflammation of the uterus, fallopian tubes and ovaries. This patient also had a history of tubo-ovarian abscesses. Respondent had been treating this patient since April, 1979. Respondent saw this patient in his office on July 9, 1981, and again on July 13, 1981 when he discussed with the patient a TAH to correct her problem. The patient refused to have her tubes and ovaries removed because she did not want to be on hormones. Respondent advised E. A. K. that he would not remove her tubes and ovaries unless they were infected. This satisfied the patient's concern about having to take hormones. The physical examination revealed the abdomen to be tender in lower quadrants, otherwise negative, and an enlarged uterus that was antiflexed, tender to touch with some fullness noted in the adnexa. Respondent's impression was chronic PID with a plan for TAH, possible unilateral salpingectomy and oophorectomy (US-O). On July 21, 1981, the patient was admitted to Waterman. The preoperative diagnosis by Respondent was chronic PID and Dysfunctional Uterine Bleeding (DUB), whereas the Operating Room Case record shows only DUB as the preoperative and postoperative diagnosis. The Clinical Summary shows the final diagnosis as chronic PID but not DUB. The discharge summary shows neither chronic PID nor DUB as a diagnosis. The Respondent performed a TAH and lysis of adhesions on July 22, 1981, but did not perform a US-0. Although the Respondent did not remove the patient's tubes and ovaries because they were not infected, there is nothing in the patient's records to confirm the condition of the tubes and ovaries at the time the Respondent performed the surgery. The hospital notes indicate that adhesions were on the uterus, that these adhesions were removed without difficulty, and the uterus removed from the abdominal cavity using the "open technique". There is insufficient documentation in the patient's records to justify the course of treatment that Respondent chose for this patient. Patient L. L. M., Medical Records No. 03-87-53 L. L. M. was one of Respondent's female patients born August 3, 1930, with no previous significant gynecological problems who was admitted to Waterman by Respondent on January 5, 1982 with an adnexal mass. A pelvic sonogram was performed which suggested that the mass was an ovarian cyst. Respondent's pelvic examination of the patient did not reveal a frozen pelvic and this being a so called "virgin belly" (no previous operations) there was no reason to consider there would be difficulty with adhesions in removing the uterus. Respondent elected to go directly to surgery with a plan of performing a TAH and a bilateral salpingo-oophorectomy (BS-O). Upon entering the abdomen, Respondent found the uterus encased in adhesions with the other body organs around it virtually "glued" together making it difficult to work with the adhesions. Respondent performed a frozen section and removed both adnexa. The pathological report indicated "possible endometriosis" but noted "no evidence of endometriosis seen". Endometriosis is where the lining of the uterus, which is endometrium, implants itself outside the uterine cavity but generally is localized and extends in the pelvic cavity. Respondent concluded that the ovarian cysts were endometriosis, which are large, usually painful ovarian cysts that are associated with the disease endometriosis. At this point Respondent decided to remove the ovaries and tubes but not the uterus. This decision was based on the expected complications of removing a uterus that was encased in adhesions and the fact that by removing the tubes and ovaries hormone production was stopped and the endometriosis could be cured if patient was not placed on hormonal therapy for a period of time. Additionally, Respondent felt that there were other medications that could be used to alleviate menopausal symptom. Respondent's postoperative treatment of this patient supports this decision. Respondent did not perform a D&C procedure on this patient. There is sufficient evidence to show that the documentation in the patient's records justify the course of treatment of this patient and that Respondent's treatment of this patient was within acceptable medical standards. Patient, G. M. S., Medical Records No. 01-82-88 G. M. S. was one of Respondent's female patients, born June 30, 1896, who suffered from a condition known as procidentia, which is complete prolapse of the uterus. G. M. S. had suffered from this condition for a number of years and had developed complications associated with the condition. G. M. S. had previously suffered a stroke and this, along with her age, would indicate the necessity to employ conservative procedures to correct her problem. Although there is sufficient evidence in the record that conservative procedures, such as a pessary (a device worn in the vagina to support the uterus), had been employed by G. M. S.'s previous physician, the patient's records did not reflect what conservative procedures were offered to the patient by her previous physician. The patient and her family were advised of the risks involved in the surgical procedure proposed by the Respondent, but because of the problems the patient was having, the family and the patient elected to go with the surgical procedures proposed by the Respondent. Respondent admitted G. M. S. to Waterman on June 15, 1980 with a diagnosis of prolapsed uterus where he performed a TAH and a BS-O. There is sufficient evidence in the record to show that conservative procedures had been employed on this patient without success, and even considering the patient's age and previous stroke, performing a hysterectomy on this patient would be within acceptable medical standards. While a vaginal hysterectomy (VH) may have been the ideal procedure for this patient (due to age and previous stroke), performing a TAH on this patient would be within acceptable medical standards considering the possibility of adhesions from previous gall bladder operation. Patient, J. M. J., Medical Records No. 03-35-38 J. M. J. was born on November 9, 1907 and suffered from a procidentia (complete prolapse of uterus). J. M. J. was admitted to Waterman on January 19, 1982 by a physician other than Respondent but was seen in consultation by Respondent for a prolapsed uterus. On January 20, Respondent performed a TAH on J. M. J. using the "open technique". Although the history and physical examination records of this patient are brief and the records as a whole could have been better, they are sufficient to justify Respondent's course of treatment for this patient, as indicated by Dr. Yelverton's testimony. Respondent chose to perform a TAH rather than a VH because of prior ovarian surgery and the potential for danger due to the likelihood of adhesions being present. There was no evidence to show that performing a TAH on this patient would be practicing medicine below acceptable medical standards unless there was a failure to concurrently make the appropriate vaginal repair of other prolapsed tissue. There was sufficient evidence in the record to show that Respondent concurrently with the TAH made the appropriate vaginal repair. There was insufficient evidence to show that the documentation of the patient's records failed to justify the course of treatment for this patient. Patient D. M. S., Medical Records No. 02-47-14 D. M. S. was one of Respondent's female patients born July 7, 1950, who Respondent described as having a medical history of uterine prolapse, DUB, pelvic pain, dyspareunia (pain during sexual intercourse) and SUI. Since SUI can be mistaken for other bladder problems there are certain tests that should be undertaken to confirm SUI and to the degree. Respondent performed the necessary test in this office (although not sufficiently documented in the patient's records) to determine that the patient had a mild degree of SUI. The patient's records do not describe any tests that were taken to appropriately evaluate the SUI. There was no documentation that Respondent's findings were inconsistent with SUI. The patient's medical history and physical examination records are extremely brief. On January 18, 1983, Respondent admitted this patient to Waterman with an admitting diagnosis of uterine prolapse and DUB. On January 19, 1983 Respondent performed a TAH using what he characterizes as his "open technique". There was no evidence to show that performing a TAH on this patient would be practicing medicine below acceptable medical standards unless there was a failure to concurrently make the appropriate vaginal repair of other prolapsed tissue, including the failure to correct SUI, if SUI was a problem. There was sufficient evidence in the record to show that Respondent concurrently with the TAH made the appropriate vaginal repair and corrected the mild degree of SUI. The patient's records failed to document whether the Respondent performed any test on the patient to determine the presence of SUI, or whether he appropriately evaluated the condition to determine if surgery was required for the SUI and, if so, whether it was corrected by surgery. However, there was sufficient documentation in the patient's records to justify the course of treatment for this patient. Patient G. M. M., Medical Records No. 03-43-34 G. M. M. was one of Respondent's female patients born May 15, 1925 who Respondent described as complaining of spotting between her menses, dyspareunia, loss of urine when she laughed or coughed and feels that her "bottom" is falling out. Patient was also being treated by another physician for heart disease. The patient's records fail to document whether Respondent performed an appropriate preoperative work-up on the patient. The physical examination does not confirm the presence or absence of a significant prolapse of the uterus other than a second degree and does not describe the presence or absence of the usually associated cystoceles and rectoceles. The operative procedure is very brief. Although there was sufficient evidence to show that Respondent performed a test in his office to confirm SUI, there is no documentation in the records of any tests being performed to confirm SUI or to appropriately evaluate the condition to determine if surgery was required and, if so, how the SUI was to be corrected. On September 11, 1980 the patient was admitted to Waterman by Respondent with an admitting diagnosis of DUB and a second degree uterine prolapse, with a plan to perform a TAH using the "open technique" and a US-0. On September 12, 1980, the day of the operation, upon entry into the abdominal cavity the Respondent discovered extensive adhesions. A US-0 (right ovary being removed) was performed, the uterus freed of the adhesions up to the level of the cervix but because of the adhesions the Respondent decided to perform a supracervical hysterectomy only, meaning that the lower portion of the uterus (cervix) was not removed, with the cervix to be removed later vaginally, if necessary. Normally, extensive adhesions will hold the uterus up and keep it from prolapsing down into the vagina. However, in those instances where the adhesions push the uterus down into the vagina, and the cervix is not removed during surgery, then unless the cervix is suspended by a surgical procedure the patient continues to suffer from uterine prolapse. There is no documentation in the records to show that Respondent performed any surgical procedure on this patient to suspend the cervix and correct the uterine prolapse. However, there was sufficient evidence in the record that Respondent's procedure did correct the uterine prolapse and the SUI complained by the patient. Normally with a patient of this age who is spotting between menses, a physician would suspect endometrical carcinoma which would suggest evaluation of the patient by biopsy of the uterus or a D & C. Due to the patient's heart condition it was determined that she should not be "under" any longer than necessary. Taking this into consideration along with the time required to do the evaluation, the Respondent made a decision not to perform the evaluation. However, Respondent did explore the abdominal cavity for the presence of cancer during the operation, and this exploration did not give Respondent any reason to suspect cancer. There is sufficient evidence to show that Respondent was practicing medicine within acceptable medical standards notwithstanding the failure to remove the cervix. There is insufficient documentation in the patient's records to justify the course of treatment for this patient. Patient G. R., Medical Records No. 04-36-70 G. R. was one of Respondent's female patients born on May 30, 1939, who Respondent described as having a medical history of urinary prolapse, pain, tenderness, dyspareunia, and SUI. The patient was referred to Respondent by another physician. Respondent in describing the present illness refers to a prior tubal ligation but the past medical history reflects no prior operation. G. R. was admitted to Waterman on April 19, 1983, with a preoperative, postoperative and final diagnosis of uterine prolapse. On April 20, 1983, Respondent performed a TAH and BS-O on the patient using what has previously been described as his "open technique". Respondent chose a TAH as opposed to a VH because of a previous tubal ligation and the possibility of pelvic infection and adhesions as evidenced by the degree of pain experienced by the patient and an enlarged uterus, all of which were confirmed by the pathology report. There was insufficient evidence to show that in using the "open technique" procedure concurrently with performing the TAH that Respondent had failed to correct the uterine prolapse as well as the SUI, the complaint presented by the patient. There was insufficient evidence to show that Respondent in this case was practicing medicine below acceptable standards. The patient's records fail to document whether Respondent performed an appropriate preoperative work-up on the patient. The physical examination does not confirm the presence or absence of a significant prolapse of the uterus other than a second degree, prolapsed down to level of the introitus and does not describe the presence or absence of the usually associated rectocele and cystocele. The operative procedure is very brief. While the evidence in this case supports the Respondent's treatment of this patient, he has failed to document in the records justification for his course of treatment. PATIENT J. L. S., Medical Records No. 03-92-49 J. L. S. was one of Respondent's female patients born October 23, 1945, who Respondent described as complaining of dyspareunia and SUI and desiring some form of definitive birth control. Upon examination it was found that the patient had a second degree uterine prolapse, uterus retroflexion but no adnexal masses palpable. Respondent's diagnosis was dyspareunia, SUI and uterine prolapse. Although the presence of a cystocele is noted in present illness, no mention is made of the cystocele in the physical examination. No mention of the presence or absence of a rectocele is made in the physical examination. J. L. S. was admitted to Waterman on February 16, 1982 by Respondent with an admitting diagnosis of prolapse, dyspareunia and a preoperative and postoperative diagnosis of uterine prolapse and pelvic pain. On February 17, 1982 the Respondent performed a TAH with left salpingectomy (US-0) on the patient using the "open-technique". The final diagnosis was uterine prolapse and SUI. The patient's records fail to document whether or not a preoperative evaluation for SUI was done. Other than documenting that he used the "open- technique" there is no description of the correction of the cystocele or the SUI. There was insufficient evidence to show that using the "open- technique" procedure concurrently with performing the TAH that Respondent had failed to correct the uterine prolapse as well as the cytocele and SUI. There was insufficient evidence to show that Respondent in this case was practicing medicine below acceptable standards. While the evidence in this case supports Respondent's treatment of the patient, he has failed to document in the records justification for his treatment of the patient. Patient J. J. A., Medical Records No. 01-37-65 The Petitioner did not allege that Respondent's treatment of this patient was below acceptable medical standards. J. J. A. was admitted to Waterman on June 18, 1980 by Respondent with an admitting diagnosis of endometrial polyps and dysfunctional uterine bleeding. Both the preoperative and postoperative diagnosis was endometrial polys, dysfunctional uterine bleeding and menorrhagia. The Respondent's final diagnosis was adenonyosis and while the pathology report indicates an enlarged uterus and polypoid endometrium there is no specific diagnosis of adenomgosis in the pathology report. Although the Respondent's records in this case are not the best, there was sufficient evidence to show that they justified the Respondent's treatment of this patient notwithstanding the fact that he listed adenonyosis on the final diagnosis. Patient D. L. C., Medical Records No. 01-98-39 D. L. C. was one of Respondent's female patients born January 4, 1957, who Respondent describes as presenting complaints of heaviness, dyspareunia (to such a degree that she can longer have sex), always tired, and continually getting discharges without relief. Patient has history of SUI. On examination it was discovered that her uterus was prolapsed, second degree, and twice its normal size. Respondent's impression after examination was SUI, uterine prolapse, and enlarged uterus with a plan for TAH, possible US-0 and anterior and posterior repair. Respondent admitted patient to Waterman on May 24, 1983 with an admitting diagnosis of enlarged uterus and uterine prolapse. Both the preoperative and postoperative diagnosis was uterine prolapse, cytocele and rectocele. On May 24, 1983, the Respondent performed a TAH, US-0 and anterior suspension. Although Respondent's discharge summary indicates that he performed a BS-0 and posterior repair, this was not done, and it was Respondent's error showing that it was done. While a rectocele can only be properly repaired vaginally, a mild to moderate cystocele may be properly repaired abdominally. There was sufficient evidence to show that the anterior suspension performed by Respondent repaired the cystocele and that the diagnosis of a rectocele by Respondent was incorrect, and no repair was needed. While further testing may have been the prudent approach for this patient, there is sufficient evidence to show that Respondent's decision to perform a TAH on this patient was practicing within acceptable medical standards, considering that the patient was desirous of solving her problem with a hysterectomy after having alternative solutions explained to her. Because the patient's medical history, physical examination, the operative notes and discharge summary are very brief and do not adequately describe the patient's condition and present several inconsistencies as to what the actual diagnosis and physical findings were, the records do not justify the course of treatment that this patient received. Patient E. E. W., Medical Records No. 02-37-74 E. E. W. is one of Respondent's female patients born October 20, 1949, who Respondent describes as presenting a complaint of dysfunctional uterine bleeding that has not been relieved by two previous D&C, the last performed by Respondent and the first performed by her previous physician. Upon examination the Respondent found an enlarged uterus that was antiflexed. Respondent's impression was dysfunctional bleeding with a plan for a TAH. Patient was admitted to Waterman on May 4, 1982 with the admitting diagnosis of dysfunctional uterine bleeding. Both the preoperative and postoperative diagnosis was dysfunctional uterine bleeding. The circulator nurse describes the procedures as a supracervical abdominal hysterectomy. The pathology report indicates a uterus without a cervix. However, further in the pathology report it refers to the cervix which indicated the presence of the cervix. The Anesthesiologist refers to the procedure as an abdominal hysterectomy in the anesthesia record. The Respondent described the procedure as a TAH. There is sufficient evidence to show that the Respondent performed a TAH on this patient notwithstanding the confusion created by the circulator nurse's description of the procedure or the confusion created by the pathology report. While there may be some inconsistencies between Respondent's records and the operating room case record, filed by the circulator nurse, and the pathology report, there is sufficient evidence to show that the records justify the course of treatment given this patient by Respondent. Patient S. J. M., Medical Records No. 04-33-93 S. J. M. was one of Respondent's female patients born October 7, 1955 (approximately 27 years old at time of treatment) who Respondent describes as presenting a complaint of severe lower quadrant pain. This pain has persisted for many years and is getting worse. Patient feels as if she is carrying weight and like her bottom is "falling out". Patient has been treated with antibiotics and pain medication. Patient has been treated for PID. Upon examination Respondent's impression was a second degree uterine prolapse and that tubes and ovaries were normal size. Notwithstanding Respondent's impression that the tubes and ovaries were of normal size and that the procedure would be sterilizing, the patient elected surgery because of the severe pain she was experiencing. Patient was admitted to Waterman and scheduled for a TAH and possible US-0, depending upon findings at time of surgery. On March 30, 1983 Respondent performed a TAH using the "open technique". The admitting diagnosis was uterine prolapse and chronic PID. Both the preoperative and postoperative diagnosis was DUB and uterine prolapse as was the final diagnosis. There is no explanation as to why chronic PID appeared as a diagnosis. There is no explanation in the patient's records as to why Respondent did no further diagnostic testing of this patient such as a diagnostic laparoscopy, commonly referred to as "belly button surgery, where you take a "look-see" inside or a D&C since DUB was indicated, before performing a TAH on a 27 year old female. There was sufficient evidence in the record to show that the pain was caused by the prolapsed uterus and that although further diagnostic testing may have been prudent, failure to do so did not result in practicing medicine below acceptable standards when considering the patient's desire to have a hysterectomy and be rid of pain and her refusal to have a D&C. There is no evidence in the record to show that the patient's problem was not corrected by the TAH. There was sufficient evidence in the record to show the Respondent was practicing within acceptable medical standards. However, the inconsistencies and the lack of information in the records, result in the records failing to justify the course of treatment for this patient, even considering the addendum prepared several months after the operation as a replacement for the physical and history dictated earlier by the Respondent which was apparently lost by the hospital. Patient A. R. S., Medical Records No. 03-69-54 A. R. S. was one of Respondent's female patients born September 15, 1915 who Respondent, upon examination, describes as presenting a third degree uterine prolapse with cervix visible at the introitus. Respondent noted some cervicitis and atrophy of the vaginal mucosa. The plan for patient was a TAH and BS-O. Patient was admitted to Waterman on June 23, 1981 and Respondent performed a TAH and BS-O on June 24, 1981 using the "open technique". Postoperatively the patient developed persistent bleeding from the vaginal cuff and was taken back to operating room where Respondent did a suture ligation of the vaginal cuff bleeder. In performing the suture ligation of the vaginal cuff bleeder, the suture caught the bowel in two points in mid ileum causing a small obstruction of the bowel. There was no looping of the bowel by the suture. Nor was there any evidence of mucosal tears. A surgeon was called in and the obstruction of the bowel removed by cutting the suture and the serosa repaired. The patient continued to experience some problem but within a few days was released. There is insufficient evidence to show that Respondent was practicing medicine below acceptable medical standards when he performed the TAH and BS-O or when he inadvertently "nicked" the bowel loop in two places causing an obstruction when suturing off the vaginal cuff bleeder. The admitting, preoperative and postoperative diagnosis was third degree uterine prolapse. The final diagnosis was third degree uterine prolapse. The final diagnosis was third degree uterine prolapse, small bowel obstruction, leiomyoma of the uterus and urinary tract infection. There is sufficient evidence to show that Respondent corrected patient's initial problem when he performed the TAH using the "open technique" and the BS-O. While the documentation in the patient's records is brief, there is sufficient evidence to show justification for the course of treatment of this patient. Respondent left his practice in Eustis, Florida in 1984 and no longer practices obstetrics on gynecology. Since 1984 Respondent has completed residency training in preventive medicine and public health and is in the process of writing his thesis for a masters degree in Public Health at the University of Miami. Respondent is presently working in ambulatory care centers doing some primary care but mostly cuts, bruise, sore throats, etc. (walk-ins). There was no evidence of any previous complaints against Respondent or any malpractice judgments entered against him. There was no evidence that any patient material to this proceeding was exposed to any injury or potential injury or that any patient was ever harmed by Respondent's treatment. There was no evidence to show that Respondent's treatment of any patient material to this proceeding was for the sole purpose of financial benefit. There was no evidence to show any prior offense by Respondent or any prior disciplinary history. 126 There is sufficient evidence to show that Respondent kept the necessary patient records in each case, but the records were insufficient to justify the course of treatment in some instances.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and Rule 21M- 20.001, Florida Administrative Code, Disciplinary Guidelines, it is, therefore, RECOMMENDED that the Board enter a Final Order finding Respondent, David A. Lasseter, M.D., guilty of violating Section 458.331(1)(n), Florida Statutes (1979), now Section 458.331(1)(m), Florida Statutes (1987), and for such violation impose an administrative fine of $1,000.00 and suspend his license to practice medicine for a period of one year, stay the suspension, and place the Respondent on probation for a period of two years with conditions the Board deems appropriate, including, but not limited to, continuing education in record keeping and restrictions on the practice of gynecology. It is further RECOMMENDED that Count I and Count III of the Administrative Complaint be DISMISSED. DONE AND ENTERED this 15th day of February, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearing this 15th day of February, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 87-0893 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-2. Adopted in Findings of Fact 1 and 2, respectively. 3.-11. These paragraphs contain a discussion of what documentation should be contained in a patient's records and where facts are stated they have been covered in the Findings of Fact under individual patients in the Recommended Order, otherwise they have been rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 12.-17. (Patient No. 03-53-61). Adopted in Findings of Fact 10 through 18, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 18.-28. (Patient No. 03-13-09). Adopted in Findings of Fact 19 through 24, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 29.-33. (Patient No. 03-87-63). Adopted in Findings of Fact 25 through 35, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 34.-38. (Patient No. 01-82-88). Adopted in Findings of Fact 36 through 41, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 39.-44. (Patient No. 03-35-38). Adopted in Findings of Fact 42 through 48, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 45.-50. (Patient No. 02-47-14). Adopted in Findings of Fact 49 through 53, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 51.-61. (Patient No. 03-43-34). Adopted in Findings of Fact 54 through 62, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 62.-65. (Patient No. 04-36-70). Adopted in Findings of Fact 63 through 69, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 66.-70. (Patient No. 03-92-49). Adopted in Findings of Fact 70 through 79, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. *71. (Patient No. 01-37-65). Adopted in Findings of Fact 80 through 83, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. *71-80. (Patient No. 01-98-39). Adopted in Findings of Fact 84 through 90, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 81.-85. (Patient No. 02-37-74). Adopted in Findings of Fact 91 through 99, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 86.-95. (Patient No. 04-33-93). Adopted in Findings of Fact 100 through 108, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. 96.-105. (Patient No. 03-69-54). Adopted by Findings of Fact 109 through 118, as modified, otherwise rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. *There were two (2) paragraphs numbered 71. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent Covered in the Preliminary Statement since Petitioner had dismissed Count III at the hearing. Adopted in Finding of Fact 1. Adopted in Findings of Fact 122 and 125, as modified. 4.-5. Adopted in Finding of Fact 3, as modified, otherwise rejected as immaterial or irrelevant or unnecessary or subordinate. The balance of Respondent's "Findings of Fact" are listed alphabetically "A" through "N" which cover each patient material to this proceeding. Generally, the Respondent "findings" are restatements of testimony or restatements of allegations made my Petitioner or discusses what the experts may have agreed upon without stating the facts. However, where possible I have treated them as statement of facts and have responded to them in numbered paragraphs under each patient in the same order as Respondent. Where these facts have not been adopted they were rejected as being immaterial or irrelevant or unnecessary or subordinate or as not supported by substantial competent evidence in the record. COPIES FURNISHED: Dorothy Faircloth Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Kenneth Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0750 Jack M. Larkin, Esquire 806 Jackson Street Tampa, Florida 33602 Salvatore A. Carpino, Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609 Stephanie A. Daniel Chief Medical Attorney Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact On January 26, 1979 Dr. Eduardo A. Liriano was licensed to practice medicine in the State of Florida by endorsement as provided in Section 458.313, Florida Statutes. At the time of his request for an application for such licensure and at the time his certificate to practice was issued Dr. Liriano was informed that Section 458.313, Florida Statutes requires him to begin practicing medicine in the State of Florida within three years for a minimum period of one year and to give notice that he has fulfilled this requirement to the Petitioner. Petitioner has received no notice from Dr. Liriano that he has met the foregoing terms and conditions of his licensure. On October 20, 1981 Petitioner sent correspondence to Dr. Liriano indicating that his license file failed to disclose any information to substantiate his compliance with the foregoing terms and conditions. Subsequently on November 20, 1981 Petitioner again sent the same correspondence to Dr. Liriano, this time by certified mail, to his home address of 115 Dyer Court, Norwood, New Jersey. A certified mail receipt indicates that Dr. Liriano signed for that correspondence on February 9, 1982. No explanation for the delay between mailing and receipt appears in this record. Because Dr. Liriano had failed to respond to the Board's inquiries about his fulfillment of the terms and conditions for his licensure the Board on February 12, 1982, entered an Order declaring his license void. By a letter received at the Board on February 26, 1982, Dr. Liriano requested the instant proceedings. In his request for proceedings he noted that he was looking forward to the possibility of moving to Florida and keeping his license active until he made a final decision. Subsequent to the forwarding of this case to the Division of Administrative Hearings an Order dated March 16, 1982 was entered by the Hearing Officer. That Order required the parties to inform the Hearing Officer of the estimated length of time necessary to conduct the final hearing and to suggest a location most convenient for the parties and witnesses. No response to that Order was received from Dr. Liriano. On May 10, 1982 the instant proceedings were noticed for October 7, 1982, at 10:00 a.m., in Tallahassee, Florida. The final hearing commenced at 10:20 a.m., after the Petitioner and the Hearing Officer waited twenty minutes for the appearance of Dr. Liriano. He did not appear. From the foregoing it is found that Dr. Liriano has not used his license to actively engage in the practice of medicine in the State of Florida within three years from January 26, 1979. Furthermore, he has failed to demonstrate that he has been in the military service of the United States during that time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Board of Medical Examiners enter a Final Order declaring void and of no force and effect, Dr. Liriano's license. DONE and RECOMMENDED this 8th day of October, 1982, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1982. COPIES FURNISHED: Chris D. Rolle, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Room 1602 Tallahassee, Florida 32301 Eduardo A. Liriano, M.D. 115 Dyer Court Norwood, New Jersey 07648 Dorothy J. Faircloth, Executive Director Florida Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues in this case for determination are whether Respondent Jose Suarez-Diaz, M.D., violated Section 458.331(1)(m) and (t), Florida Statutes (2003), as alleged in an Amended Administrative Complaint filed by the Department of Health before the Board of Medicine on November 29, 2006; and, if so, what disciplinary action should be taken against his license to practice medicine in the State of Florida.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 458, Fla. Stat. (Admitted facts). Respondent, Jose Suarez-Diaz, M.D., is, and was at the times material to this matter, a physician licensed to practice medicine in Florida, having been issued license number ME 14791. (Admitted facts). Dr. Suarez-Diaz is board-certified in Anesthesiology. (Admitted facts). Dr. Suarez-Diaz’s mailing address of record at all times relevant to this matter is 8340 S.W. 62nd Avenue, Miami, Florida 33143. (Admitted Facts). The Department conceded that Dr. Suarez-Diaz has not previously been the subject of a license disciplinary proceeding. Patient J.C. On October 28, 2003, J.C. was admitted to Mercy Hospital in Miami, Florida, with a diagnosis of possible appendicitis. J.C., a 49-year-old male, had a history of heart attack, which occurred in 1998, five years prior to his admission; pneumonia which occurred two months prior to his admission; and chronic obstructive pulmonary disease. After admission, J.C. underwent a chest x-ray, which showed moderate cardiomegaly, and an EKG, which showed left ventricular hypertrophy. J.C. was scheduled for an immediate laparoscopic appendectomy, with Dr. Suarez-Diaz in charge of anesthesiology. Prior to surgery Dr. Suarez-Diaz completed a pre- anesthesia evaluation, documenting J.C.’s history of a 1998 heart attack, pneumonia two months prior to admission, and chronic obstructive pulmonary disease. He did not, however, document the results of the chest x-ray. At approximately 2330 hours (11:30 p.m.), Dr. Suarez- Diaz began anesthesia. J.C. was, from the start of surgery, connected to the following monitors: pulse oximoetry (which measured the level of oxygen in J.C.’s blood); electrocardiogram (which measures heart activity); and NCO2 monitor (which measured the level of CO2 in J.C.’s blood); and a blood pressure monitor (hereinafter these monitors are collectively referred to as the “Monitors”). Dr. Suarez-Diaz documented the connection of all of the Monitors, except the NCO2 monitor, in J.C.’s medical records. The Monitors, consistent with insurance requirements, remained connected to J.C. throughout the surgery, and, based upon Dr. Suarez-Diaz’s uncontroverted and convincing testimony, were monitored throughout J.C.’s surgery. Surgery commenced at approximately 2345 hours (11:45 p.m.). Almost immediately after anesthesia was first administered, J.C. experienced bronchospasm (the constriction of his airway). In response, Dr. Suarez-Diaz appropriately increased the volume of gas into J.C.’s lungs. In addition to constriction of J.C.’s airways, the few oxygen level recordings made by Dr. Suarez-Diaz indicate that J.C.’s blood oxygen levels were below normal, especially considering the amount of oxygen J.C. was being provided. Due to the emergency nature of the surgery, surgery commenced after J.C.’s bronchospasm was controlled. What took place during surgery, from the standpoint of Dr. Suarez-Diaz’s responsibilities, cannot be determined from Dr. Suarez-Diaz’s medical record, which is essentially illegible and grossly incomplete: Systolic and diastolic blood pressure readings should have been recorded often, but were not. Of the 15 diastolic readings which should have been recorded, only five readings were; Vital signs were not recorded until after 0045 hours (12:25 a.m.); Pulse oximoetry readings ended at 0015 hours (12:15 a.m.); EKG readings were not recorded after 2400 hours (midnight); and End-tidal CO2 readings ended at 0015 hours (12:15 a.m.). Surgery ended on October 29, 2003, at between 0015 and 0030 hours (12:15 and 12:30 a.m.). Due to impacts on J.C.’s diaphragm during the surgery, ventilation became so difficult that it became necessary for Dr. Suarez-Diaz to “bag” J.C. in order to maintain better control over oxygen levels in J.C.’s blood. When a patient is “bagged” ventilated is provided manually with a gas bag. Bagging allows a physician to control the rate of ventilation in a way which a ventilator machine cannot. Because Dr. Suarez-Diaz was engaged in bagging J.C., and at the same time closely monitoring J.C.’s oxygen levels, Dr. Suarez-Diaz was unable to record his observations in J.C.’s medical records. According to Dr. Suarez-Diaz’s uncontroverted and persuasive testimony, J.C. was one of the three most difficult patients he had dealt with in his 50 years of experience. When surgery ended, J.C. was kept in the operating room with all monitors connected. Dr. Suarez-Diaz still failed to record vital signs and oxygen saturation levels. At some time between 0035 and 0045 hours (12:35 to 12:45 a.m.), J.C. was extubated (the removal of tubes used to breath for the patient) and was breathing on his own. While Dr. Suarez-Diaz noted in his records that J.C. had been extubated, he did not record whether the monitors remained connected between the time he was extubated and then moved to a stretcher. According to his own uncontroverted testimony, he did not maintain the monitors when J.C. was transferred to the stretcher because, in Dr. Suarez-Diaz’s opinion, J.C. was breathing on his own. Shortly after extubation, J.C. experienced respiratory difficulty and became dusky and pulseless. At approximately 0045 hours (12:45 a.m.), J.C. was reintubated and a code was called for cardiac arrest; CPR and defibrillation were performed. Dr. Suarez-Diaz remained until approximately 0100 hours (1:00 a.m.), when J.C.’s blood pressure was reestablished. Electoencephalograms were performed on J.C. on October 29 and 31, 2003. Both tests indicated reduced activity consistent with a lack of oxygen to the brain. On November 10, 2003, J.C. was extubated with “do-not- resuscitate” orders. J.C. died on November 18, 2003. E. The Standard of Care. The Department obtained opinions of two expert witnesses concerning Dr. Suarez-Diaz’s treatment of J.C.: Joan Christie, M.D., who testified by deposition (Petitioner’s Exhibit 1); and Les King, M.D., whose opinion letter to the Department was admitted without objection as Respondent, Dr. Suarez-Diaz’s Exhibit B. Dr. King’s opinion letter was not given as much weight as it may have if he had testified, but his opinions do raise significant questions about Dr. Christie’s opinions. Both of the Department’s experts relied upon essentially the same information to formulate their options. Both reached contrary opinions concerning whether Dr. Suarez- Diaz failed to practice medicine in accordance with the level of care, skill, and treatment recognized in general law related to health care licensure in violation of Section 458.331(1)(t), Florida Statutes (hereinafter referred to as the "Standard of Care"), in his treatment of J.C. Dr. King offered the following general, summary opinion: This patient had coronary artery disease of advanced stages HTW and COPD. This is not always information available prior to emergent surgery. Management of the anesthetic, ACLS and post code care are seemingly appropriate for the events. The subject met the standard of care. Dr. Christie, on the other hand, testified generally that Dr. Suarez-Diaz violated the Standard of Care by failing to adequately monitor J.C. “prior to” extubation. The difficulty with Dr. Christie’s testimony in this regard is that she relied completely on the medical records for J.C., without any consideration of Dr. Suarez-Diaz’s uncontroverted and convincing testimony that he indeed did monitor J.C. prior to extubation. Dr. Christie’s testimony does not, therefore, support a finding or conclusion that Dr. Suarez-Diaz violated the Standard of Care “[b]y failing to maintain adequate monitoring . . . after extubation despite intra-operative indications of oxygenation difficulty ” Dr. Christie also offered the following opinion, which apparently was intended to apply to the question of whether Dr. Suarez-Diaz violated the Standard of Care “after” extubation: I think that the lack of monitoring, particularly in the last – lack of monitoring of end-tidal CO2 and oxygenation in the last half an hour and at the time of extubation are not the standard of care. . . . Petitioner’s Exhibit 1, Page 33, Lines 21 through 25. There are several problems with Dr. Christie’s opinion. First, she again relied completely on the medical records, without any consideration of Dr. Suarez-Diaz’s uncontroverted and convincing testimony as to why he did disconnected the monitors prior to placing J.C. on the stretcher. Secondly, Dr. Christie’s opinion is not very precise as to what period of time she is talking about. She clearly rendered her opinion as to the care provided at the time of extubation, but the Amended Administrative Complaint charges a lack of monitoring “after extubation.” Thirdly, Dr. King reached contrary conclusions on this matter. Dr. King precisely addressed the question of whether J.C. should have been monitored upon transport to the stretcher: 3. It is difficult to determine exactly what transpired at the end of anesthesia and in the moving to the stretcher piror to transport to Recovery. Charting is exceptionally incomplete. As far as meeting the standard of care, it seems to have been appropriate patient management. Standard of care de facto is for patients to be transported from the operating room to recovery without monitoring. Appropriate care seems to have been rendered. . . . . 13. For stable patients following surgery and anesthetics, general transport to recovery is un-monitored other than direct observation. Generally, if the patient is stable, there is not an issue in moving the patient to the stretcher unmonitored. Respondent, Dr. Suarez-Diaz’s Exhibit B. While Dr. King’s opinions may not be adequate, given the manner in which they were entered into evidence, to find that Dr. Suarez-Diaz “met the Standard of Care,” his statements, coupled with the lack of precision in Dr. Christie’s opinion and Dr. Suarez-Diaz’s testimony, are adequate to find that Dr. Christie’s opinion does not support a finding or conclusion that Dr. Suarez-Diaz violated the Standard of Care “[b]y failing to maintain adequate monitoring prior to . . . extubation despite intra-operative indications of oxygenation difficulty ” Finally, Dr. Christie opined, in relevant part, as follows concerning the issue of whether Dr. Suarez-Diaz violated the Standard of Care by simply “failing to maintain adequate medical records”: In my view the practitioner did not meet the standards with respect to documentation and – in the medical records. . . . Petitioner’s Exhibit 1, Page 10, Lines 7 through 9. Dr. Christie goes on to describe in some detail the significant shortcomings in Dr. Suarez-Diaz’s medical records for J.C. Dr. Christie’s opinion as to whether inadequate medical records along constitutes a violation of the Standard of Care, again, is contrary to Dr. King’s opinion, and, more importantly, the definition of the Standard of Care. Clearly, Dr. Suarez-Diaz kept medical records which were inadequate as to whether he monitored J.C. The evidence, however, proved that, despite the inadequate records, he did monitor J.C. and provided the care he was required to provide. The Standard of Care requires a physician to use adequate “care, skill, and treatment” of in the physician’s care of a patient. As poor as Dr. Suarez-Diaz’s records for J.C. were, the mere inadequate records do not support a finding that he did not provide adequate “care, skill, and treatment” to J.C. The evidence failed to prove that Dr. Suarez-Diaz violated the Standard of Care as alleged in the Amended Administrative Complaint in his care of J.C.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine dismissing Count I of the Amended Administrative Complaint; finding that Jose Suarez-Diaz, M.D., has violated Section 458.331(1)(m), Florida Statutes, as alleged in Count II of the Amended Administrative Complaint; issuing a reprimand; requiring that he pay an administrative fine of $2,500; and requiring that he attend ten hours of continuing medical education related to appropriate record keeping. DONE AND ENTERED this 13th day of March, 2008, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 13th day of March, 2008. COPIES FURNISHED: Irving Levine Assistant General Counsel Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Sean Ellsworth, Esquire Ellsworth Law Firm, P.A. 404 Washington Avenue, Suite 750 Miami Beach, Florida 33139 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
