The Issue The issue is whether Respondent, Department of Health, Board of Medicine (“Department”), was “substantially justified” under section 57.111(3)(e), Florida Statutes, in initiating the underlying action against the electrolysis license of Petitioner, Claudia Patricia Orozco-Fandino, E.O. (“Petitioner” or “Ms. Orozco”).
Findings Of Fact Case No. 18-3899PL was initiated by the Department, a “state agency” for purposes of section 57.111(3)(f). Ms. Orozco qualifies as a “small business party” as defined in section 57.111(3)(d). Because the Final Order in Case No. 18-3899PL was entered in her favor, Ms. Orozco is a “prevailing small business party” under section 57.111(3)(c)1. The Department has stipulated that the $55,185.50 in attorneys’ fees and $2,226.53 in costs claimed by Ms. Orozco are reasonable. The only issue remaining at hearing was whether the Department was substantially justified in bringing the initial action against Petitioner’s electrolysis license. Section 57.111(3)(e) states that a proceeding is “substantially justified” if “it had a reasonable basis in law and fact at the time it was initiated by a state agency.” Starting in or around 2003, Ms. Orozco owned and operated Orozco Medical Center (“OMC”), a facility that is no longer in operation. OMC provided a range of cosmetic surgical procedures, including liposuction, Brazilian butt lifts, fat transfers or fat grafting, and vampire facials. Since 2013, Ms. Orozco has been the president of Orozco Surgical Center (“OSC”), which remained in operation as of the hearing date. OSC currently provides only facials and acupuncture services.1 The Board of Medicine’s probable cause panel decides whether there is a sufficient legal and factual basis for the Department to move forward with formal charges in license discipline cases. In Ms. Orozco’s case, Department Case No. 2017-13921, the information presented to the probable cause panel included an investigative report prepared by the Department’s investigator, 1 Ms. Orozco is a licensed electrologist, acupuncturist, facial specialist, and body wrapper. Cynthia Demetrovich. This 743-page report served as the basis for the probable cause determination made by the probable cause panel on April 20, 2018. As described in the investigative report, the investigation in Department Case No. 2017-13921 began on August 9, 2017, and was triggered by Ms. Orozco’s arrest by officers of the Hillsborough County Sheriff’s Office. She had been charged with four felony counts of aggravated battery, four felony counts of practicing medicine without a license, and four felony counts of fraud.2 Between August 24, 2017, and October 16, 2017, Ms. Demetrovich and Christopher Heuerman, another Department investigator, interviewed 15 OMC patients. Patients K.H., S.H., L.H., C.W., A.M., D.A., C.P., and M.A. underwent a surgical procedure known as a “Brazilian butt lift” (“BBL”) at OMC. A BBL is a specialized fat transfer procedure that augments the size and shape of the buttocks without implants. Excess fat is removed from the hips, abdomen, lower back, or thighs with liposuction, and a portion of this fat is then strategically injected into the buttocks. All eight of the patients stated that they witnessed Ms. Orozco perform their BBL procedures. Patients K.H., S.H., L.H., C.W., and A.M. expressed their willingness to testify in court about their experiences at OMC. Patients K.H., S.H., W.P., C.W., O.H., A.M., and C.P. stated that Ms. Orozco represented herself as a doctor when they met with her at OMC. Patient P.J. stated that Ms. Orozco treated her for weight loss by injecting her with HCG and vitamin B12 at OMC. HCG, or human chorionic 2 The criminal case against Ms. Orozco was resolved by a Pre-trial Intervention Agreement. gonadotropin, is a hormone produced during pregnancy that is sometimes used as a weight loss medication. Patients T.M. and L.H. stated that Ms. Orozco gave them phentermine as an appetite suppressant at OMC. Phentermine is a prescription drug. Patient K.O. stated that she was treated by Ms. Orozco at OMC for weight loss. Ms. Orozco administered HCG injections and personally gave an appetite suppressant to Patient K.O., who could not recall the name of the suppressant. Patient O.H. stated that Ms. Orozco injected dermal fillers into her face at OMC. Patients N.M. and K.B. stated that Ms. Orozco administered vampire facials to them at OMC. A “vampire facial,” or “platelet-rich plasma facial,” is a procedure in which blood is drawn from a patient’s arm and placed in a centrifuge. The resulting platelet-rich plasma is then injected into the patient’s face. “Electrolysis or electrology” is defined by section 478.42(5) as “the permanent removal of hair by destroying the hair-producing cells of the skin and vascular system” using equipment and protocols approved by the Board of Medicine. An electrologist is not competent to perform surgical procedures such as BBLs; to treat a patient for weight loss; to prescribe or administer weight loss drugs; to inject dermal fillers; or to perform vampire facials. On August 10, 2017, the Department mailed a letter to Ms. Orozco advising her that a case had been opened against her and that she had 20 days from receipt of the letter to submit a response or schedule an interview. Ms. Orozco’s counsel responded by letter dated August 28, 2017, addressed to Ms. Demetrovich. The letter enclosed a copy of Ms. Orozco’s curriculum vitae and stated that she intended to “vigorously defend the criminal allegations which were the subject of her arrest.” Counsel noted that formal charges had yet to be filed against Ms. Orozco and concluded by requesting the Department “to refer to my correspondence in the related Department of Health Investigation No. 2016-16104.” The referenced correspondence included two letters from Ms. Orozco’s attorneys. Both letters were addressed to Ms. Demetrovich and addressed an earlier Department investigation of Ms. Orozco. The first letter, dated July 7, 2016, included a three-page chart identifying the names of patients, their dates of surgery, and the names of the physicians who performed the surgeries. The chart listed 46 patients whose procedures were stated to have been performed by Mark Kantzler, D.O., and 12 patients whose procedures were stated to have been performed by Amina Edathodu, M.D. The second letter, dated August 26, 2016, asserted that Ms. Orozco was a “certified Surgical First Assistant,” and set forth the job description and duties of a surgical assistant as defined by the American Board of Surgical Assistants and the Association of Surgical Assistants. The letter stated that all surgical procedures at OMC were performed by licensed physicians with assistance from certified surgical assistants, including Ms. Orozco. The August 28, 2017, letter from Ms. Orozco’s counsel was included in Ms. Demetrovich’s investigative report. However, the referenced letters of July 7, 2016, and August 26, 2016, were not included in the investigative report and therefore were not placed before the probable cause panel. Ms. Demetrovich testified that she is not allowed to “share cases,” i.e., to mix materials from separate investigations into a single file. Because the letters dated July 7, 2016, and August 26, 2016, were in reference to Department Case No. 2016-16104, Ms. Demetrovich did not include them in her investigative report for Department Case No 2017-13921. The investigative report included the complete medical records, including before and after photographs, received from OMC for Patients K.H., S.H., C.W., O.H., N.M., K.B., T.M., A.M., D.A., A.B., K.O., P.J., C.P., and M.A. The investigative report also included the Hillsborough County Sheriff’s Office criminal report affidavit and arrest report for Ms. Orozco. The criminal report affidavit named four additional patients who told detectives that Ms. Orozco performed their BBL or liposuction procedures at OMC. All four patients named in the criminal report affidavit stated that Ms. Orozco led them to believe she was a medical doctor who could perform the surgical procedures offered by OMC. The patients variously stated that Ms. Orozco referred to herself as “doctor,” conducted the preoperative consultations, or showed them pictures of previous surgeries she had performed. Patient N.M. stated that another non-physician, Marlon Barcelo, performed the fat removal in her procedure. Mr. Barcelo was a surgical assistant employed by Ms. Orozco. Patient N.M. stated that Ms. Orozco performed the fat injection portion of the procedure. Patients U.L., A.B., and H.P. stated that their liposuction procedures were performed entirely by Ms. Orozco. The criminal report affidavit stated that on April 22, 2016, a Hillsborough County Sheriff’s detective interviewed Dr. Edathodu, who stated that she had worked at OMC. Dr. Edathodu referred to Ms. Orozco as a “doctor” and stated that Ms. Orozco had performed fat removal and injection procedures at OMC. Dr. Edathodu reviewed the medical records for Patient N.M., which indicated that Dr. Edathodu performed her procedure. Dr. Edathodu denied to the detective that the signatures and handwriting on N.M.’s medical records were hers. The criminal report affidavit stated that on May 5, 2017, a Hillsborough County Sheriff’s detective interviewed Dr. Kantzler, who stated that he would be present in the OMC facility while liposuction procedures were performed, but that the surgical assistants performed them. The criminal report affidavit stated that Patient A.B. reported that about two weeks before she met with the detective, she received a text message from Ms. Orozco. The text message stated that if Patient A.B. got a phone call from anyone, she should tell them that Dr. Kantzler had performed her surgery. On December 27, 2017, counsel for the Department provided Ms. Orozco’s counsel with a CD copy of the Department’s complete investigative file for Department Case No. 2017-13921. In the accompanying letter, counsel for the Department reminded Ms. Orozco’s counsel that he had 20 days in which to file a written response to the information contained in the investigative file, pursuant to section 456.073(10). On April 20, 2018, the Department’s probable cause panel met to review and discuss the investigative report. The panel found probable cause for both counts of the Administrative Complaint. At the hearing in the instant fee case, Ms. Orozco contended that the probable cause panel’s determination was based on an incomplete record. She argued that the Department’s investigative report omitted exculpatory material and that Ms. Demetrovich failed to make inquiries that might have led the probable cause panel to a different decision. Ms. Orozco noted that Ms. Demetrovich began investigating OMC in 2016, well before the investigative report in Department Case No. 2017- 13921 was prepared. Ms. Orozco testified that Ms. Demetrovich visited the offices of OMC on August 11, 2016, in the guise of accompanying a Department dispensing practitioner inspector. While at OMC, Ms. Demetrovich interviewed Ms. Orozco directly and took photographs of every room in the building. She photographed the surgical suite and the equipment therein. Ms. Demetrovich testified that she did not interview Ms. Orozco on August 11, 2016. She testified that if any photographs were taken during the visit, they were taken by the other inspector. Ms. Orozco contended that at the time she submitted her investigative report, Ms. Demetrovich was aware that the OMC surgical suite contained a drape between the patient’s head and the surgical field that wholly obstructed the patient’s view of who was performing their surgery. Ms. Orozco contended that if this information had been provided to the probable cause panel, the panel would have discounted the numerous patient statements attesting that Ms. Orozco performed their surgeries. Ms. Orozco also questioned why Ms. Demetrovich did not ask the patients how they could possibly know Ms. Orozco was performing their procedures when they could not see the surgical field. Ms. Orozco noted that the 2016 investigation prompted her counsel to submit the July 7, 2016, and August 26, 2016, letters referenced above. Ms. Orozco questioned why the contents of those letters were not included in the investigative report. Ms. Orozco pointed out that the medical records that were included in the investigative report were replete with indications that the surgeries were performed by Dr. Edathodu and Dr. Kantzler, including the consent forms in which the patients expressly acknowledged the name of the physician who would perform the procedure. Ms. Orozco contends that Ms. Demetrovich was obliged to confront the patients with this evidence and ask them to reconcile it with their statements that Ms. Orozco performed their procedures. Ms. Orozco argued that Ms. Demetrovich should have interviewed Dr. Edathodu, Dr. Kantzler, and other members of the OMC staff before completing her investigative report. Ms. Demetrovich testified that Dr. Edathodu evaded several attempts to interview her. Ms. Demetrovich stated that she interviewed Dr. Kantzler in another case, but did not include a summary of that interview in the investigative report of this case. Ms. Demetrovich testified that neither Dr. Edathodu nor Dr. Kantzler submitted affidavits in relation to this case. Ms. Demetrovich testified that her role in the investigation of Ms. Orozco and OMC did not include evaluating records obtained from the subjects of the investigation, or their attorneys, apart from checking for completeness. She testified that the determination as to whether to pursue disciplinary action based on the investigation rested with the Department’s attorneys. Ms. Demetrovich’s testimony as to the limits of her job responsibilities is credited. The investigative report included an identification key with the full names of the patients. Ms. Demetrovich acknowledged that she neglected to include the full names of Patients W.P. and L.H. in the identification key. It is found that the information before the probable cause panel was sufficient to support the panel’s decision to pursue an Administrative Complaint against Ms. Orozco. The investigative report included interviews with eight OMC patients who stated to the Department’s investigators that Ms. Orozco had performed BBLs on them. All eight patients stated that they witnessed Ms. Orozco perform the procedure. Five of the eight stated their willingness to testify against Ms. Orozco in any future court proceeding. Seven patients stated that Ms. Orozco had presented herself to them as a physician. Four other patients interviewed by the Department’s investigators stated that Ms. Orozco had provided them with injections of medications. Two patients stated that Ms. Orozco had performed vampire facials on them. One patient stated that Ms. Orozco administered dermal fillers to her. Four patients interviewed by detectives from the Hillsborough County Sheriff’s Office stated that Ms. Orozco presented herself as a medical doctor. Three of the four stated that Ms. Orozco performed their liposuction procedures. The patient statements alone justified a finding of probable cause. Ms. Orozco pointed to contrary evidence in the investigative report, such as the patient consent forms that clearly indicated the surgeries were performed by Dr. Edathodu and Dr. Kantzler. Such documentation might weigh against the patient statements, but is insufficient to support a finding that the probable cause panel should have disregarded the word of 19 patients that Ms. Orozco performed procedures on them that exceeded the scope of her professional licensure. Further, the probable cause panel would have been justified in discounting the patient consent forms in light of the statements the two physicians gave to the Hillsborough County Sheriff’s detectives that surgical procedures were in fact performed by Ms. Orozco and/or Mr. Barcelo. None of the items that Ms. Orozco claims were omitted from the investigative report would change this finding. The July 7, 2016, letter from her counsel naming the patients and their respective physicians was of no more significance than the signed consent forms that were included in the report. The August 26, 2017, letter setting forth the definitions of “surgical assistant” and stating that licensed physicians performed all surgeries at OMC merely contradicted the patients’ statements. It did not disprove or invalidate the patients’ statements in such a way as to justify their disregard by the probable cause panel. Finally, it was a matter of dispute whether Ms. Demetrovich had in her possession photos of the OMC surgical suite that she declined to include in the investigative report. Nothing prevented Ms. Orozco from submitting such photos on her own if she believed they would help her case. Such photos might raise questions, but again would not disprove or invalidate the statements of 19 patients to the degree that the probable cause panel could reasonably disregard the patients’ statements to the investigators and detectives.3
Findings Of Fact Respondent, William Moats, D.D.S., has been licensed to practice dentistry in the State of Florida since 1969, under license number DN0005263. He practices at his office located at 515 Semoran Boulevard in Casselberry, Florida. On March 28, 1990, the patient, S.T. presented to Dr. Moats for a routine teeth cleaning. S.T. had been a regular patient of Dr. Moats since 1979, including a period when S.T. was a military dependent. During the course of the cleaning, acne lesions around S.T.'s mouth and nose area became irritated and began to bleed. Dr. Moats was concerned about the condition and told the patient he would consult a dermatologist. He then called Enrique M. DeArrigoitia, M.D., a dermatologist whom he has known since his medical service with the Navy. Dr. DeArrigoitia was told that Dr. Moats had a patient in his office with acne lesions, with blackheads, papules and pustules, and some bleeding around his mouth, and was asked what he would suggest. Dr. DeArrigoitia recommended five percent Benzoyl Peroxide and Retin-A, .05 cream to be used sparingly at bedtime. He said that the peroxide could be obtained without a prescription but that Retin-A required one. If necessary, Dr. DeArrigoitia said he would follow the patient. Dr. Moats gave S.T. two prescriptions: Pan Oxyl gel 10% and Retin-A 0.025% gel, refillable "PRN" (as needed, or indefinitely up to the limits of the law). Both prescriptions were legend drugs. These were medications the patient indicated that he had used before under the care of a dermatologist; however, his prescriptions had expired and he had not seen anyone recently for the acne condition. Both prescriptions are typically used to treat acne. Dr. Moats suggested that S.T. make an appointment with Dr. DeArrigoitia. S.T. did not follow up on the suggestion because he was too busy at work. He filled the prescriptions twice, the second time because he had left them in his car and they melted. The two parties each presented a witness qualified as expert in general dentistry. Both experts concurred that the treatment of acne is outside the scope of the practice of dentistry. Dentists may diagnose and treat conditions of the human teeth, jaws or oral- maxillofacial region (generally considered the portion of the face from below the eyes, including the nose, down to the border of the chin and the lower jaw). Just because a condition lies within that anatomy, however, does not bring it within the scope of the practice of dentistry. Dentists are not trained to treat acne. While they do treat regions of the lip area -- typically viral sores or irritations, acne is a condition involving the dermis of the face, neck, shoulders and other parts of the body. Dr. Moats contends that he was not treating acne, but rather was concerned that the open and bleeding lesion was a possible site of infection because of its proximity to the mouth and that it needed attention for the patient's protection. He does not know why he wrote the prescriptions "PRN". He never identified himself to others as anything but a dentist. The prescriptions are written on his prescription pads, printed with his name and address and signed by him, with D.D.S. plainly displayed. He did not consider his action to be outside his practice of dentistry. The patient was not harmed nor was evidence presented of other violations or disciplinary actions involving this Respondent.
Recommendation Based on the foregoing, it is hereby recommended that the Board of Dentistry enter its final order finding that William A. Moats, D.D.S. violated Section 466.028(1)(q), F.S., and imposing a reprimand and fine of $750.00. RECOMMENDED this 20th day of December, 1991, in Tallahassee, Leon County, Florida. COPIES FURNISHED: William Buckhalt, Exec. Dir. DPR-Board of Dentistry 1940 N. Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel DPR 1940 N. Monroe Street Tallahassee, FL 32399-0792 Albert Peacock, Esquire DPR 1940 N. Monroe Street Tallahassee, FL 32399-0792 Dennis F. Fountain, Esquire Suite 250 1250 S. Highway 17-92 Longwood, FL 32750 MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1991.
The Issue The issue for determination is whether Respondent violated Section 466.028(1)(x), Florida Statutes (2001), by failing to refer patient L.D. to a specialist for evaluation and treatment of numbness of her tongue. (All statutory references are to Florida Statutes (2001) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of dentistry in Florida pursuant to Section 20.43 and Chapters 456 and 466. Respondent is licensed as a dentist in Florida pursuant to license number DN9676. Respondent is a general dentist. Respondent practices dentistry in Cape Coral, Florida, and has practiced dentistry for approximately 18 years. Respondent has no prior discipline against his license. The patient at issue is identified in the Administrative Complaint as L.D. The parties stipulated that L.D. is the same person identified in Respondent's medical records as L.V. and in the Transcript as L.W. L.D. is a female who was 19 years old when Respondent removed her four wisdom teeth on February 26, 1998. At the time, Respondent's records correctly identified the patient as L.V. L.V. subsequently married D.D. who was her boyfriend at the time. L.V. is now L.D. L.D. and D.D. were both patients of Respondent. L.D. suffered an injury to her lingual nerve when Respondent extracted her wisdom teeth. Lingual nerve injury is a foreseeable risk of wisdom tooth extraction, and the parties agree that Respondent properly disclosed that risk to L.D. prior to extracting her wisdom teeth. The symptoms of lingual nerve injury include paresthesias, i.e., numbness, of the tongue. The applicable standard of care for lingual nerve injury is observation and, under certain circumstances, referral to an oral and maxillofacial surgeon ("oral surgeon"). Surgery for symptoms of a lingual nerve injury may be exploratory, or it may be undertaken to perform a nerve grafting procedure. One of the risks of such surgery is dyscesthesia, i.e., pain, thereby making the symptoms worse rather than better. Therefore, surgery is not appropriate unless the patient experiences severe or debilitating pain, lip biting and cheek biting, or cannot function. The prudent dentist should observe the patient over time to determine whether the patient is improving and to determine the nature and scope of the patient's symptoms. The Administrative Complaint contains two essential allegations against Respondent. One allegation is that Respondent failed to diagnose the lingual nerve injury. The other allegation is that Respondent failed to refer L.D. to an oral surgeon. Respondent properly diagnosed the lingual nerve injury to L.D. After extracting L.D.'s wisdom teeth on February 26, 1998, Respondent examined L.D. in 1998 on February 27; March 5, 12, and 26; April 30; May 4; and July 8. L.D. did not call or seek an appointment with Respondent between May 4 and July 8, 1998. The first examination on February 27, 1998, was routine. Respondent checked to make sure L.D. had no signs of any complications, gross infection, or pus from the area of the surgery. L.D. had no complaints of numbness. Respondent instructed L.D. to return on March 5, 1998. On March 5, 1998, L.D. complained for the first time of numbness on both sides of her tongue. Respondent properly examined and diagnosed the cause as lingual nerve injury. By using an explorer to identify the areas of paresthesia, or numbness, Respondent determined that the right tip of L.D.'s tongue did not respond to the explorer, the right mid-tongue did respond, the left tip did not respond, and the left mid-tongue did not respond. Respondent also determined that both lingual tissue areas, i.e., the areas toward the tongue, did not respond to the explorer. Respondent properly treated L.D. after diagnosing the lingual nerve injury. Respondent observed L.D. for approximately four months to determine the nature and scope of L.D.'s symptoms. L.D.'s paresthesia of the tongue improved during the four months immediately following the removal of her wisdom teeth. After examining and diagnosing L.D. on March 5, 1998, Respondent explained to L.D. that the numbness may be either transient or permanent and that she was to return in one week for observation. L.D. returned to Respondent's office on March 12, 1998. Respondent stated that the feeling was coming back to her tongue, especially on her left side, and that she felt tingling. L.D. complained only of a tingling sensation on the right side of her tongue. L.D. did not complain that her tongue was numb or that she was biting her tongue. L.D. stated that her tongue was still a little bit numb, and it was tingling a little bit on the right side. A tingling sensation is hyperesthesia or paresthesia. Hyperesthesia can be an indication that the lingual nerve is repairing or healing. It indicates that the nerve is intact, that nerve conduction is occurring, and may indicate a potential for spontaneous self-repair. Respondent instructed L.D. to return for observation in two weeks. L.D. returned to Respondent's office on March 26, 1998. L.D. stated the feeling had returned to the left side of her tongue and that the right side of her tongue was still tingling. Respondent instructed L.D. to return for observation in six weeks. L.D. returned to Respondent's office on April 30, 1998. L.D. stated that she no longer had sensitivity on the right side of her tongue. The comment that she had "no sensitivity" indicated that the patient had none of the tingling sensation that had been her only complaint on March 26, 1998. L.D. returned to Respondent's office on May 4, 1998, for a dental prophylaxis, i.e., cleaning. L.D. did not complain of any numbness or tingling on May 4, 1998. On July 8, 1998, L.D. and D.D. both visited Respondent's office for dental care. D.D.'s visit was routine and not material to this proceeding. L.D. returned to Respondent's office and reported conflicting symptoms. L.D. indicated that she had feeling in her lips, but did not respond to the explorer on the gum in the front or the back of the teeth or in the areas of the tongue in which she had previously indicated that sensation had returned. The symptoms displayed by L.D. on July 8, 1998, included symptoms of buccal nerve damage. The buccal nerve goes to the gum and cheeks and is different from the lingual nerve. Prior to July 8, 1998, L.D. had not previously shown any signs of buccal nerve damage. Because of these conflicting complaints, Respondent referred L.D. to an oral surgeon on July 8, 1998. Respondent referred L.D. to the Southwest Florida Oral Surgery Associates ("Southwest"). Respondent has referred patients exclusively to Southwest for approximately 10 years. Respondent's records for July 8, 1998, do not include an express statement that he was referring L.D. to an oral surgeon. However, the records include a notation, "PTR for records," that indicates L.D. was to return for her records. The notation in the records is consistent with Respondent's longstanding protocol when referring a patient to a specialist. The protocol is to have the patient's records copied and prepared for the patient to pick them up and deliver to the specialist. On July 13, 1998, D.D. obtained copies of the records for L.D. and for D.D. from Respondent's office. The records included a written referral form for L.D. in accordance with Respondent's protocol. Respondent's office staff inadvertently filed Respondent's copy of the written referral form for L.D. in D.D.'s dental records and recovered the form after Respondent was asked to retrieve D.D.'s records during discovery in this proceeding. Respondent informed his office manager on July 8, 1998, that he had referred L.D. to an oral surgeon. Respondent's office manager confirms that Respondent stated to her at the time that he was referring L.D. to an oral surgeon. On March 3, 1999, L.D. saw Dr. Kevin Pollack at Southwest. Dr. Pollack found that L.D. could not perceive touch or pressure on the left side of her tongue. On April 1, 1999, L.D. saw Dr. Timothy Hogan at Southwest. L.D. had improved since she saw Dr. Pollack. Dr. Hogan found that L.D. could perceive light touch and pressure on the left side of her tongue. Petitioner's expert opined that failure to refer L.D. to an oral surgeon failed to comply with the applicable standard of care for lingual nerve injury. However, the issue of whether Respondent referred L.D. to Southwest is an issue of fact for which expert opinion is admissible if: specialized knowledge will assist the trier of fact in understanding the evidence; and the opinion can be applied to evidence at the hearing. Section 90.702. The record does not disclose any specialized knowledge needed to resolve the factual issue of whether Respondent referred L.D. to Southwest. The expert did not testify at the hearing as to why the expert's knowledge, skill, experience, training, or education would assist the trier of fact in making a finding concerning the factual issue of whether Respondent referred L.D. to Southwest. The opinion of Petitioner's expert was not applied to evidence at the hearing. The expert apparently disregarded the entries in Respondent's records that L.D. was to pick up her records, and the expert was not present at the hearing to listen to other evidence and testify as to whether the evidence at hearing altered his opinion. The only other evidence that the expert opinion could be applied to is the testimony by L.D. and D.D. that Respondent did not refer L.D. to Southwest. However, the testimony of L.D. and D.D. is neither credible nor persuasive and is less than clear and convincing. The memories of the two witnesses are not clear and are not without confusion. Most of the facts to which the witnesses testified are not distinctly remembered. The testimony is not precise and explicit. Their testimony lacks certainty and consistency as to specific facts and circumstances and details. Both witnesses testified that they clearly recalled that Respondent did not refer L.D. to Southwest. However, neither witness could recall how L.D. ended up at Southwest. Nor could either witness recall picking up records from Respondent, what was contained in those records, and whether a written referral was included in the records. When asked why L.D. had not returned to Southwest, L.D. refused to answer the question. The testimony of L.D. and D.D. does not produce in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegation that Respondent failed to refer L.D. to Southwest. The assumption inherent in the testimony of Petitioner's expert that Respondent did not refer L.D. to an oral surgeon is not based on underlying facts or data in evidence and, therefore, is not admissible pursuant to Section 90.705. Even if it were admissible, the underlying facts and data are less than clear and convincing and not persuasive. Petitioner submitted evidence that Respondent failed to meet the applicable standard of care because Respondent did not refer L.D. to an oral surgeon in a timely manner. Without identifying the appropriate time for a referral, Petitioner relies on expert opinion that, "sooner is better than later." The Administrative Complaint does not allege that Respondent failed to meet the applicable standard of care by failing to refer L.D. to an oral surgeon in a timely manner. Rather, the Administrative Complaint alleges that Respondent failed to refer L.D. to an oral surgeon at any time. It would violate fundamental principles of due process to put Respondent on notice in the Administrative Complaint that he must be prepared to defend against the allegations in the Complaint and then prove a different allegation during the administrative hearing. Even if the Administrative Complaint were to allege that Respondent failed to timely refer L.D. to an oral surgeon, the evidence is less than clear and convincing that the referral by Respondent was not timely. Respondent did not refer L.D. to a specialist prior to July 8, 1998, because the numbness in her tongue had been improving. In April of 1999, L.D. had recovered a large percentage of the feeling on the left side of her tongue and was experiencing tingling on her right side. If Respondent had referred L.D. to a specialist during the time that she had been reporting improvement in her parethesias, the referral would have been inappropriate. In the absence of debilitating pain and lip and cheek biting, a dentist need not refer a patient with lingual nerve paresthesia to an oral surgeon. If a patient who experiences lingual nerve parethesias after the removal of wisdom teeth shows signs of improving or if the patient has some feeling in the tongue, the dentist need only observe the patient and need not refer the patient to a specialist.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding that Respondent is not guilty of violating Section 466.028(1)(x) and dismissing the Administrative Complaint. DONE AND ENTERED on this 17th day of December, 2001, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 17th day of December, 2001. COPIES FURNISHED: Tracy J. Sumner, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Jay P. Chimpoulis, Esquire O'Connor & Meyers Post Office Box 149022 Coral Gables, Florida 33114-9022 Frank R. Recker, Esquire Frank R. Recker & Associates Company L.P.A. 267 North Collier Boulevard, Suite 202 Marco Island, Florida 34145 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701
Findings Of Fact The Department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order directly Children's Medical Services for District VII to authorize coverage for the reconstructive surgery recommended and proposed by J. Barry Boyd, M.D. DONE and ORDERED this 6th day of November, 1985, in Tallahassee, Florida. DIANE K. KIESLING 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 6th day of November, 1985. COPIES FURNISHED: Gerry L. Clark, Esquire HRS District Seven Assistant Legal Counsel 400 West Robinson Street Orlando, Florida 32801 Ms. Cynthia Thibeault 1415 Overdale Street Orlando, Florida 32817 David Pingree Secretary 1323 Winewood Boulevard Tallahassee, Florida 32301 ================================================================ =
The Issue Whether Petitioner's proposed treatment, fluoroscopic radiofrequency thermoneurolysis, is experimental.
Findings Of Fact Petitioner, Douglas J. Phillips, Jr., D.D.S. (Dr. Phillips), is a licensed dentist in the State of Florida. Sometime in January, 1993, Dr. Phillips proposed using the procedure, fluoroscopic radiofrequency thermoneurolysis to treat a patient. This procedure involves destruction of tissue by the application of high heat, at approximately two hundred degrees Fahrenheit. A probe or cannula (insulated needle) is placed through skin, subcutaneous tissue and muscle to reach into where the tendon or ligament inserts to the bone or to where there is a small nerve root. An electrode goes through the insulated needle. Heat is then applied at approximately two hundred degrees. The treatment causes a small scar on the bone or destroys the nerve. The purpose of the procedure is to treat head and facial pain. The patient has been diagnosed with the degeneration of the temporomandibular joint on the left side, advanced degenerative osteoarthritis, and fibrous ankylosis with osteroarthritis of the left temporomandibular joint. She experiences head and facial pain. Dr. Phillips had performed fluoroscopic radiofrequency thermoneurolysis on the patient in September, 1991. CIGNA approved and paid for the procedure. The patient experienced relief from the pain for almost two years after the procedure was done. The patient is now experiencing pain again, and Dr. Phillips proposes to treat her again with fluoroscopic radiofrequency thermoneurolysis. By letter dated January 29, 1993, Intervenor CIGNA, informed Dr. Phillips that his request to perform the proposed treatment was not authorized. CIGNA'S basis for denial of approval was that the procedure was experimental and was not recognized by the American Dental Association. On or about August 27, 1993, Dr. Phillips requested that Respondent, the Department of Labor and Employment Security, Division of Workers' Compensation (Division), review the procedure pursuant to Section 440.13(1)(d), Florida Statutes (1993) and Rule 38F-7.0201, Florida Administrative Code. On November 22, 1993, the Division issued a determination that fluoroscopic radiofrequency thermoneurolysis was experimental. Dr. Phillips was taught the proposed procedure eight years ago by Dr. Ernst, a dental practitioner in Alabama. Dr. Phillips spent four days observing Dr. Ernst in Dr. Ernst's office and one week of training in a hospital under the direction of Dr. Ernst. The first procedure performed by Dr. Phillips was two years after his training with Dr. Ernst. Prior to performing the procedure, Dr. Phillips also attended a one hour lecture on the procedure given by another dentist. No other dentist in Florida practices this procedure. The American Dental Association has not endorsed the procedure. Radiofrequency thermoneurolysis is not on the American Dental Association's list of approved dental therapeutic modalities. It is not taught in any dental school or school of oral surgery. Dr. Phillips is not aware of any mention of the proposed procedure in any dental or oral surgical textbooks. Only four other dentists in the United States practice this procedure. There is no published written protocol regarding this procedure except for an article written by Dr. Wilk, which consists of a two paragraph treatment of the subject. Fluoroscopic radiofrequency thermoneurolysis is not listed in the American Dental Association's Current Dental Terminology, nor does the proposed treatment have a code assigned to it. Donna M. Reynolds is a supervisor of the policy section in the Rehabilitation and Medical Services Unit of the Division. When she received the request from Dr. Phillips to review the proposed procedure, she contacted three consultants for the Division: Dr. Richard Joseph, Dr. Martin Lebowitz and Dr. Davis. She received responses from Drs. Joseph and Lebowitz indicating that they considered the procedure to be experimental. Dr. Davis did not respond to her request. Dr. Joseph is a board certified oral and maxillofacial surgeon. When asked by the Division to review the proposed treatment, he reviewed all the documentation submitted by the Division, which included the documentation that Dr. Phillips had submitted in support of his request. Dr. Joseph also did a medline search. Medline is a computerized medical library search that is commonly performed by physicians to research or review all of the current medical literature. The medline search of 301,000 articles revealed only two or three articles relating to the use of radiofrequency thermoneurolysis. Dr. Joseph also consulted with Dr. Gremillion, the chairman of the Department of Facial Pain at the University of Florida, College of Dentistry. Based on his research, Dr. Joseph opined that the proposed procedure was experimental. It was Dr. Joseph's opinion that radiofrequency thermoneurolysis was outside the practice parameters in the general practice of dentistry. Dr. Lebowitz, an oral and maxillofacial surgeon and former co-director of the Facial Pain Clinic at the University of Florida, reviewed the documentation sent by the Division with its request to review the proposed treatment. The documentation included articles which had been supplied by Dr. Phillips to the Division. It was Dr. Lebowitz's opinion that none of the articles submitted by Dr. Phillips were scientifically acceptable based on the lack of blind studies, the quantity of patients being studied, and the lack of studies performed in different locations. In researching the issue, Dr. Lebowitz contacted Dr. Jim Ruskin, the head of the residency program in the Oral Maxillofacial Surgery Department at the College of Dentistry, University of Florida. Dr. Ruskin is considered a world authority on the management of facial pain. Dr. Lebowitz also spoke with Dr. John Gregg, a Virginia dental practitioner who previously ran the facial pain clinic at Chapel Hill at the University of North Carolina. Additionally, Dr. Lebowitz spoke with Dr. Castellano, an oral and maxillofacial surgeon in Tampa, Florida. Based on his research, Dr. Lebowitz concluded that radiofrequency thermoneurolysis was experimental. Dr. John Roland Westine is board certified in oral maxillofacial surgery and is a licensed dentist. He has studied the use of electrical energy in destroying tissue and has used electro-surgical equipment for thirty years. Dr. Westine is familiar with radiofrequency thermoneurolysis. Prior to the final hearing, he had reviewed the records of forty patients who had been treated with radiofrequency thermoneurolysis. It was his opinion that the proposed procedure was not safe and could cause the following problems: irreparable damage to vision, stroke, motor deficiencies, damage to facial nerves, nerve deficits, sensory deficits, abscess formations and parotid fistulas. Based on the preponderance of the evidence, Dr. Phillips has not demonstrated that the fluoroscopic radiofrequency thermoneurolysis is widely accepted by the practicing peer group, that the procedure is based on scientific criteria, or that the procedure is reasonably safe. Radiofrequency thermoneurolysis, including fluoroscopic radiofrequency thermoneurolysis, is an experimental procedure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered determining that fluoroscopic radiofrequency thermoneurolysis is experimental and denying approval for the procedure. DONE AND ENTERED this 29th day of August, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-762 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Petitioner did not designate which portion of his proposed recommended order contained the proposed findings of fact and which portion contained the proposed conclusions of law; thus, I am unable to address the paragraphs which Petitioner may contend are his proposed findings of fact. Respondent's Proposed Findings of Fact. Paragraphs 1-5: Accepted in substance. Paragraphs 6-7: Accepted that that is what the statutes and rule say. Paragraph 8: The first sentence is accepted in substance. The second sentence is accepted to the extent that the Division does submit the documentation to consultants. The evidence established that the proposed treatment is not for use in the aid or confirmation of a diagnosis; therefore, the Division would not be required to submit the documentation to four consultants based on Rule 38F-7.0201, F.A.C. Paragraph 9: Accepted in substance. Paragraph 10: Accepted. Paragraph 11: Rejected as unnecessary. Paragraphs 12-15: Accepted in substance. Paragraph 16: Rejected as constituting argument. Intervenors Proposed Findings of Fact. Paragraphs 1-2: Accepted in substance. Paragraph 3: Rejected as unnecessary detail. Paragraphs 4: Accepted. Paragraph 5: The last sentence is rejected as unnecessary. The remainder is accepted in substance. Paragraph 6: Accepted in substance. Paragraph 7: Rejected as unnecessary detail. Paragraphs 8-9: Accepted to the extent that Dr. Phillips desires to use the proposed treatment. The remainder is rejected as unnecessary. Paragraph 10: Rejected as not supported by the greater weight of the evidence. Paragraph 11: Rejected as unnecessary. Paragraphs 12-15: Accepted in substance. Paragraph 16: Rejected as unnecessary. Paragraph 17: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. Paragraph 18: Accepted in substance. Paragraph 19: The first four sentences are accepted in substance. The remaining is rejected as unnecessary. Paragraphs 20-21: Accepted in substance. Paragraphs 22-31: Rejected as unnecessary. Paragraphs 32-35: Accepted in substance. Paragraph 36: Rejected as unnecessary. Paragraphs 37-39: Accepted in substance. Paragraphs 40-41: Rejected as unnecessary. COPIES FURNISHED: Robert R. Johnson, Esquire Post Office Box 3466 West Palm Beach, Florida 33402 Michael Moore, Esquire Office of the General Counsel Department of Labor & Employment Security 2012 Capitol Circle Southeast, Suite S-307 Tallahassee, Florida 32399-2189 Nancy Lehman, Esquire Neil J. Hayes, P.A. 224 Datura Street, Suite 601 West Palm Beach, Florida 33401 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152 Edward A. Dion Department of Labor and Employment Security General Counsel Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152
The Issue The issue is whether Respondent's Florida license to practice medicine should be revoked for malpractice under section 458.331(1)(t), Florida Statutes (2006).
Findings Of Fact Respondent is licensed to practice medicine in Florida, holding license number ME 66823. He is a radiologist and is certified by the American Board of Orthopedic Radiology and Diagnostic Radiology. On June 17, 2004, the Board of Medicine (Board) disciplined Respondent's medical license by issuing a letter of concern, imposing a $15,000 fine, assessing $4,010.59 in costs, requiring eight hours of continuing medical education, and prohibiting him from treating or prescribing medication to members of his family. On or about October 4, 2006, while working at Drew Medical, Inc., Respondent performed a diagnostic procedure called an intravenous pyelogram (IVP) without tomograms for Patient G.P., who had complained of right-side pain and had a history of kidney stones. An IVP without tomograms is a series of time- lapse x-rays using a dye material to provide radiographically contrasting images to detect a stone in a kidney or ureter. The resulting x-ray images revealed a partial obstructing stone in the right-side kidney/ureter area, which Respondent detected and reported. One of the resulting x-ray images contained an anomaly having the classical appearance of an abdominal aortic aneurysm, including conspicuous tissue displacement and rim calcification. It had an elongated, water balloon-type appearance with calcifications on one of the walls. It was alarming or life- threatening in size, such that it could cause death by bleeding. Respondent did not mention the aneurysm in his report or recommend any further evaluation of the anomaly. Although he was tasked to look for kidney stones, Respondent's failure to report the aneurysm or recommend any further evaluation of the anomaly fell below the level of care, skill, and treatment that is recognized by reasonably prudent, similar physicians as being acceptable. Patient G.P. was admitted to Orlando Regional Hospital with a ruptured abdominal aortic aneurysm on October 6, 2006. Attempts were made to repair the rupture, but they were not successful. The patient died on October 12, 2006. By his conduct in disappearing without a trace, despite the diligent efforts of DOH to find him, and not participating in any manner in the hearing he requested to dispute the Administrative Complaint, Respondent effectively abandoned his license to practice medicine in Florida.
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 Respondent guilty of medical malpractice, revoking his medical license, and imposing a $10,000 administrative fine. DONE AND ENTERED this 25th day of July, 2012, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 2012. COPIES FURNISHED: Greg S. Marr, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 Robert Dean Marshall, M.D. Apartment 310 400 East Colonial Drive Orlando, Florida 32803 Robert Dean Marshall, M.D. 5987 Southwest Moore Street Palm City, Florida 34990 Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Joy Tootle, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
