The Issue At the hearing, DPR dismissed Count II, alleging a violation of subsection 458.331(1)(h) Florida Statutes. The remaining issues for resolution are whether, as alleged in Counts I, III, IV and V, Dr. Robinson violated subsections 458.331(1)(n),(q), and (t) Florida Statutes by failing to maintain adequate records, by inappropriately prescribing controlled substances, and by failing to properly evaluate and treat multiple medical problems.
Findings Of Fact Jerry Mason Robinson, M.D., has been continually licensed (license number ME 0011811) as a physician in the State of Florida since 1965. He was Board-certified in Family Practice in 1973 and was recertified in 1979 and 1985. He has continually practiced medicine since 1967 in Deltona, Florida, as a sole practitioner in family practice. Patient Fleming Dr. Robinson began treating Jesse Fleming when he came to his office on March 14, 1979, with complaints of being unable to breathe, a feeling of suffocation, and inability to sleep. The patient was found to be suffering from refractory heart failure and was admitted that same day to Seminole Memorial Hospital. Jesse Fleming was discharged as improved on March 23, 1979. His final diagnosis, reflected on the discharge summary, was: refractory heart failure, chronic obstructive pulmonary disease, and Pickwickian's syndrome. The notation "Pickwickian Syndrome" also appeared on the first clinical data sheet, dated March 14, 1979, in Dr. Robinson's office records for this patient. Pickwickian Syndrome, in lay terms, is a condition occurring in obese individuals wherein the abdominal fat presses on the diaphragm, cutting off the breathing and causing sleep at odd and inappropriate times. While Dr. Robinson initially felt that the condition was Pickwickian Syndrome, after the patient lost substantial weight in the hospital, he felt the proper diagnosis should be narcolepsy, a similar condition. He started him in the hospital on Dexedrine tablets, 5 mg. each morning, to increase his alertness. Narcolepsy is a very rare disease characterized by periods where the patient falls asleep uncontrollably many times during the day. The patient also has cataplexy, which is episodes of collapse that occur intermittently with emotional stress, laughing, giggling and fear. Another aspect of narcolepsy is called hypnagogic hallucinations, where an individual has vivid dreams. And the fourth part is called sleep paralysis where the patient cannot move on occasion without being touched. While there is no single test available to unconditionally diagnose a case of narcolepsy, the competent experts agree that a complete history and physical examination is required. The patient should be asked about sleeping patterns and about the symptoms described above. Testing through an electroencephalogram (EEG) and polysomnography is helpful. It is also important to specifically eliminate other causes of somnolence such as medications or other physical conditions, such as thyroid disorders or anemia. Dr. Robinson's records for Jesse Fleming are void of any documentation of the basis for his diagnosis of narcolepsy. The hospital discharge summary of his course in the hospital mentions only that the patient was found to be somnolent and sleeping all the time. He was on Valium in the hospital, 2 mg., 4 times a day to reduce anxiety. Valium is considered to be a central nervous system depressant and has drowsiness as one of its components. There is another notation on the records, on the occasion of an office visit, that the patient fell asleep in the office. This alone, does not indicate a case of narcolepsy. Although Dr. Robinson continued Mr. Fleming on Dexedrine or similar drug, Eskatrol, from the time that he was discharged from the hospital in March 1979, the first notation of a diagnosis of narcolepsy does not appear until March 20, 1981. The term appears intermittently as a diagnosis thereafter, but without description of any symptoms. Dexedrine is a Schedule II controlled substance. It is generally considered one of the amphetamines, a central nervous system stimulant. It has a high liability for habituation, or psychological dependence and overwhelming desire to continue to use the medication. It should not be used in those conditions in which it causes unnecessary stress on the vital organs of the body. It increases the demand of the heart for oxygen and can compromise an already failing heart. It is dangerous to give Dexedrine with thyroid hormones because the hormones make the heart more sensitive to Dexedrine and to the body's own form of Dexedrine, which is adrenalin. If given at all with Digoxin or Digitalis, Dexedrine should be given only with great care because these drugs slow the heart rate, an opposite effect of Dexedrine. In the past amphetamines were widely used to assist in weight control. That use was restricted and the treatment of narcolepsy is one of the remaining legitimate uses. And at least one expert in this proceeding, Jacob Green, M.D. would designate Ritalin, or a similar sympathomimetic drug as the treatment of choice for narcolepsy. In late 1981, Eskatrol was no longer available and Dr. Robinson began prescribing Dexedrine spansules, 15 mg., 200 or 100 at a time, at approximately monthly intervals. The patient has continued on this medication through 1985 and up to the time of the hearing. Around June 1979, Dr. Robinson began to prescribe Synthroid, a thyroid hormone, for Fleming's hypothyroidism at the same time that the patient was taking the amphetamine. On one occasion when the patient complained that he could not sleep, Dalmane, a sleeping medication was prescribed. Dexadrine spansules are a time-release medication which allows the effects of the drug to remain in the body for a longer period, including night time, when sleep is appropriate. Also while Fleming was on Eskatrol or Dexedrine, Dr. Robinson intermittently prescribed Brethine (a stimulant) for his lung problems, and on an on-going basis, Digoxin, for his heart condition. Assuming without the medical record basis to substantiate it, that the narcolepsy diagnosis was accurate, the prescription of Dexedrine to Jesse Fleming was dangerous and inappropriate. The patient records for Fleming are replete with references to irregular heart beats. On some occasions the nurse recorded "very irregular" apical pulses. These irregularities are sometimes a harbinger of heart failure and can occur in, or be exacerbated by, amphetamine therapy, especially in combination with thyroid hormones. In his testimony at hearing, Dr. Robinson stated that when he observed the notation of an irregular pulse he would check the patient himself to assure that the patient was alright. However, these observations are not reflected in the chart, except on one occasion when an EKG was taken and was found to be within normal limits. Good medical record-keeping is an essential aspect of a reasonable prudent physician's practice. Records are the mainstay of communications between physicians and provide a reminder to the physician with a busy practice. The records should provide objective findings and, from the patient, subjective findings. They guide the physician into what he was thinking previously and what needs to be done in the future. In a mobile society, when patients move from doctor to doctor, when specialists are brought in for consultation, when a regular doctor is absent, it is essential that another physician be able to view what has happened in the case from the medical records. Everything that is done needs to be justified in and documented in the records. The absence of a notation leads to the justifiable conclusion that the treatment was not undertaken or the test was not performed. Dr. Robinson failed to maintain adequate records to support his treatment of Jesse Fleming. The bases for his diagnosis of narcolepsy was utterly lacking, as was the basis for the decision to persist in prescribing Dexedrine under dangerous and potentially life-threatening conditions. Patient Kipp Fred Kipp was first examined by Dr. Robinson on June 8, 1978. He came to the office to get some prescriptions for medication that he was already taking. He had angina and a bad cold and was getting ready to return to Ohio, his summer residence. The history given by the patient on that first visit indicated that he had undergone two hip operations and an operation on his cervical spine for fusion. He had two aneurysm operations on his aorta, he had a hemorrhoidectomy and an amputation of his left second finger. At various times in the past he had been treated for severe arthritis in his back and foot, angina, hypertension, diabetes, pneumonia and hepatitis. His medications were Naprosyn for arthritis, Isordil for angina, Diabinese for diabetes, Hydrodiural for his hypertension, Percodan for his pain in his back, and Nitroglycerin for his angina. Dr. Robinson examined the patient and refilled his Naprosyn and Isordil. He told him to come back to see him in the fall when he returned to Florida. Fred Kipp returned to Dr. Robinson's office on December 7, 1978, complaining of chest pain. He was admitted to Seminole Memorial Hospital for pre-infarction angina and was discharged on December 11, 1978, with diagnoses of angina pectoris and coronary artery disease. From December 1978, until present, Dr. Robinson has been Fred Kipp's regular family physician. During this time he has treated him for angina or coronary artery disease, arthritis, hip problems, diabetes, back pain, shingles, vascular problems and chronic severe pain associated with all of these conditions. During this period the patient was hospitalized at least six times, primarily with heart trouble, but also for uncontrolled diabetes and impending gangrene. During a September 1984 admission to Central Florida Regional Hospital (formerly known as Seminole Memorial Hospital), the patient was diagnosed as having severe ankylosing spondylitis, a progressive spinal disease where the vertebrae ultimately become fused. The initial diagnosis was based on the patient's statement of his prior history, but the diagnosis was later confirmed by Dr. Robinson with an x-ray and CAT scan. The condition is very painful. During the course of his treatment of Fred Kipp, Dr. Robinson has kept the patient on Percodan for pain, in addition to his various medications for his multiple problems. Percodan is a Schedule II controlled substance containing oxycodone and aspirin. It is an analgesic with opium-like properties and is useful for moderate to moderately-severe types of pain. Because of the nature of the drug it has a potential for habituation and dependency, particularly when used on a regular long-term basis for chronic, as opposed to acute (temporary) pain. In order to avoid the habituation and dependency, less-addictive modalities should be tried before Percodan is selected as the treatment of choice. Dr. Robinson's office records for Fred Kipp do not reflect the consideration of alternatives. However, Dr. Robinson was aware that alternatives such as non-steroidal and anti- inflammatory agents were tried by consulting physicians, including by Dr. Broderick with Seminole Orthopaedic Associates. Fred Kipp is a very large man, approximately six feet, eight inches tall and weighing from 247 to 281 pounds. The dosages of Percodan prescribed for him by Dr. Robinson were not excessive, given the patient's size and physical problems. He has received between 200 and 300 Percodan per month for the last six years. At no time did he ever claim to have lost his prescription in order to get more drugs. Although the use of a strong narcotic with a chronic pain patient is the last resort of a reasonable, prudent physician, the use of Percodan was necessary and appropriate in Fred Kipp's case to allow him to maintain a reasonable quality of life. This finding is based not upon Dr. Robinson's office records, but rather on the competent expert testimony of his witnesses, who examined the patient and his records, and on the hospital records and consulting physicians' records in this case. Dr. Robinson's office records are deficient as to documented analysis of the patient's pain (subjective and objective observation) and efforts with less addictive modalities. While Dr. Robinson claimed that he requested Fred Kipp's records from his prior treating physician, his own records do not reflect that fact, nor was the attempt repeated when the first request was unproductive.
The Issue The issue in this proceeding was whether Respondent violated Subsections 458.331(1)(g) and (t), Florida Statutes, between June 26, 1980 and September 16, 1983, by prescribing 4,100 Percocet to a single patient, failing to attempt other modalities of pain treatment for that patient and failing to refer the patient to a consulting physician.
Findings Of Fact At all times relevant, Robert G. Gilbert, M.D., Respondent, was licensed as a physician with license number ME0005030 from the Florida Board of Medical Examiners. He has been continually licensed since 1952. (Petitioner's Exhibit #3, T-13, 18) Neither the Department nor any hospitals have ever taken any action against his license. (T-13) Dr. Gilbert admitted at the hearing that he prescribed 4,100 pills of Percodan to his patient, George Watson, for the period of time in question. (T-9) He also stated that he prescribed for Mr. Watson 100 Percocet a month for the last five years that he treated him. (T-20-21) These admissions are consistent with Petitioner's evidence consisting of medical records and original prescription forms retrieved from the pharmacies. (Petitioner's Exhibits #1, 2 and 4) Percodan and Percocet both contain oxycodone; Percodan includes aspirin, and Percocet includes acetaminophen. (T-31) Both Dr. Gilbert and Petitioner's expert, Dr. John Handwerker referred to the PDR (Physicians' Desk Reference) regarding the drugs. The warning in that widely-accepted medical reference is: "May be habit forming"; the indications are "For the relief of moderate to moderately severe pain"; and, * * * Dosage should be adjusted according to the severity of the pain and the response of the patient. It may occasionally be necessary to exceed the usual dosage recommended below in cases of more severe pain or in those patients who have become tolerant to the analgesic effect of narcotics. The usual dosage is one tablet every six hours for pain. PDR, 1984 Edition, p. 928. The Oxycodone content in these drugs places them in the Schedule II, severely restricted medical category. (T-31), See Subsection 893.03(2)(a), Florida Statutes. Dr. Gilbert did not admit that the drugs were the only mode of treatment for this patient. Rather, he and other physicians treating Mr. Watson used ultrasound, heat, cold, massage, transcutaneous neural stimulation ("TNS") and muscle relaxants. (T-9-10) The patient was 6'2" and weighed 210 lbs. He was injured on his job as a City of Miami police officer and for a lengthy period, from 1974 until 1985, Dr. Gilbert was his authorized worker's compensation physician. At no time while Mr. Watson was under Dr. Gilbert's care did he ask for an increase in dosage or exhibit any unusual behavior. The treatment, other than drugs, was utilized from 1974 until about 1977 regularly and then intermittently, as needed, until February 1985. (T-10, 12) The records of George Watson obtained by the D.P.R. from Dr. Gilbert's office, consist primarily of cards reflecting various visits of the patient, correspondence regarding the workers' compensation claim and workers' compensation billing and report forms. The records are replete with references to physiotherapy, often several times a month and, for several months in 1977, on a daily basis. George Watson continually complained of pain. (Petitioner's Exhibit #1) Also included in the records is a three-page report on the patient, dated July 30, 1977, from Ledford Gregory, M.D., an orthopedic surgeon. The report reflects the patient's complaints of severe pain and Dr. Gregory's recommendation to the patient regarding surgery: I am however impressed by the degree of pain he is having and I believe that he is a candidate for surgical therapy. Before a decision would be made in this regard however, he should have an electromyelogram of the lower extremity, a CAT scan of the lumbar spine and a myelogram. We could then decide whether a Gill procedure and decompression would be sufficient or whether there would have to be added a posteriolateral fusion procedure. I have discussed this with the patient. I have explained to him that the odds are fairly good that the operation would give him considerable relief but that there is a chance that his condition would remain unchanged, and there is a slight chance that he might be worse. He will have to make the decision himself as to whether he desires the surgical intervention or not. (Petitioner's Exhibit #1, p. 171). Dr. John Handwerker was qualified as an expert witness for Petitioner. He heard Dr. Gilbert's testimony and reviewed the medical records, including the prescriptions for George Watson. (T-30,31) In his opinion the prescriptions for Percocet/Percodan were inappropriate and excessive as there were other treatment modalities that could have been tried before risking addiction. In his opinion, the TNS unit should have been utilized continually, rather than just in the office, and Dr. Gilbert's records were inadequate to justify the continuing use of the drugs for his patient's pain. (T-32, 33, 38).
Recommendation For the foregoing reasons, it is, therefore, RECOMMENDED: That the Administrative Complaint against Respondent, Robert G. Gilbert, M.D., be dismissed in its entirety. DONE and RECOMMENDED this 23rd day of May, 1986, in Tallahassee, Florida. MARY W. CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1986. COPIES FURNISHED: Dorothy Faircloth Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Cecilia Bradley, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Robert G. Gilbert, M.D. 2617 Cardena Street Coral Gables, Florida 33134 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Paragraph 1. Adopted in Paragraph 2. Rejected as unnecessary. Rejected as unnecessary. 5-7. Rejected as unnecessary. While the veracity of the witness is not in question, the testimony of the Respondent under oath and substantiated by the medical records introduced as Petitioner's exhibit #1 is more competent evidence that other modalities were tried. Without the actual questions asked by the investigator, it is not possible to determine the context or meaning of the seemingly inconsistent prior statements of Respondent during the investigator's interview. Adopted in part in Paragraph 3, the transcript reference does not support the finding proposed in this paragraph. Adopted in Paragraph 6, except as to the characterization of the testimony as "uncontroverted", this is specifically rejected. Adopted in general in Paragraph 6. Rejected as cumulative and unnecessary. Rejected as inconsistent with the evidence. Adopted in general in Paragraph 6. Adopted in general in paragraph 6. But see Conclusions of Law #4 regarding violations which are not included in the complaint. Adopted in paragraph 2. Rejected as cumulative. Rejected as cumulative. Rejected as unnecessary. This conclusion by the expert is rejected as discussed in the Conclusions of Law. 23-25. Rejected as unnecessary. 26. Rejected as irrelevant in this proceeding. Incapacity is not charged in the complaint before me. See Conclusion of Law #4.
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Respondent's licensure and practice Respondent, Douglas N. Graham, is now, and was at all times material hereto, licensed as a chiropractic physician by the State of Florida, having been issued license number CH 0005483. At all times pertinent, Respondent operated two businesses associated with the practice of chiropractic. The first business, a typical chiropractic practice, was operated under the name Action Chiropractic, and was located in a small office building at 8095 Overseas Highway, Marathon, Florida. The second business, known as Club Hygiene, promoted a hygienic (nutritionally sound) lifestyle based on the consumption of uncooked fruit and vegetables, nuts and seeds. As part of the regime at Club Hygiene, fasting (to detoxify the body) was also promoted as an avenue to better health. Club Hygiene was located in Respondent's two-story home at 105 Bruce Court, Marathon, Florida. The ground floor, where the patients (or guests, as they were referred to at Club Hygiene) resided, consisted of three bedrooms, one bathroom, a small recreation room or area, and a porch for dining. Each bedroom contained two beds, allowing a maximum capacity of six guests. On the second level was Respondent's residence, which he shared with up to three "interns,"3 who cared for the guests. The instant case primarily involves concerns voiced by Petitioner regarding the care of two patients (K. E. and B. D.) at Club Hygiene in 1993. Regarding those concerns, Petitioner questioned whether Respondent's record keeping met minimum standards and whether Respondent's treatment met the prevailing standard of care. The K. E. affair On December 7, 1992, K. E. presented as a walk-in at Respondent's chiropractic clinic, Action Chiropractic, for a free consultation to address whether she could benefit from chiropractic care. At the time, K. E., a female, was 25 years of age (date of birth March 7, 1967), 5'6" tall, and weighed 105 pounds. On presentation, K. E. filled out a case history sheet which detailed her present and past symptoms, as follows: occasional dizziness and headache; occasional pain between shoulders; frequent constipation and difficult digestion, with occasional pain over stomach; occasional colds, ear noises, and sore throat; occasional skin eruptions (rash); occasional frequent urination; and, occasional cramps or backache and vaginal discharge, with frequent irregular menstrual cycle. History further revealed an injury to a "muscle in back" over 5 years previous. Personal habits reflected a light appetite, as well as light use of alcohol and drugs. Exercise and sleep habits were noted as moderate. When asked to describe her major complaints and symptoms, K. E. responded, "They said I had scoliosis when I was young. I'm curious if it still is there." The date symptoms were first noticed was stated to be "middle school." K. E.'s visit with Respondent lasted about twenty minutes, and included a brief spinal check, as well as a discussion regarding diet and nutrition. Respondent apparently told K. E. she would benefit from chiropractic care; however, neither the patient record nor the proof at hearing reveal the results of his examination, diagnosis, prognosis, or any treatment plan. Due to a lack of funds, K. E. declined further chiropractic care. At the time, or shortly thereafter, Respondent offered K. E. the opportunity to become an "intern" at Club Hygiene. The Internship Agreement entered into by Respondent and K. E. on January 18, 1993, provided as follows: The internship will last for a period of . . . 6 months . . . beginning on MONDAY, JANUARY 18TH , 1993 and ending on SUNDAY, JULY 18th , 1993. The company will provide the Intern with room, board, and the opportunity for hands- on, first-hand experience in the day-to-day operation of a hygienic retreat, supervision of fasting patients, and hygienic living. The Intern will provide the Company with their full-time efforts in the operation of the retreat in the manner determined by the company and in fitting with all reasonable rules and guidelines to be enforced by the company . . . . As an inducement to complete the internship, interns were apparently rewarded with a supervised fast at the end of their term. When K. E. joined the staff of Club Hygiene in January 1993, she was one of three interns who cared for the patients (guests). Also on staff, and working under Respondent's supervision, was Tim Trader (referred to as Dr. Trader in these proceedings), a unlicensed naturopathic physician.4 As an intern, K. E. changed the guests' linen, cleaned the guest bathroom, assisted with food preparation and, on a rotating basis with the other interns, dined with the guests. Each morning, K. E. also took the guests' blood pressure, and noted their vital signs. When K. E. began work at the club she was suffering health problems and, more particularly, stomach trouble (difficult digestion and pain) and constipation. To assist her, Respondent recommended various diets, and K. E., at Respondent's recommendation, moved from eating predominantly cooked foods to raw natural foods; however, her stomach troubles persisted, and by April 1993 her weight had dropped to about 92 pounds. In April 1993, on the advise of Dr. Trader and with the concurrence of Respondent, K. E. started a fast, water only, as a means to address her health problems. There is, however, no evidence that K. E. was physically examined prior to fasting, although at some point Respondent apparently suggested that "she had severe problems, including but not limited to, malabsorption syndrome, leaky gut syndrome, potential hiatal hernia and resultant malnutrition." Moreover, apart from the meager patient record of K. E.'s office visit in December 1992, there is no patient record or other documentation (evidencing patient history, symtomatology, examination, diagnosis, prognosis, and treatment) to justify the care (diet and fasting) offered K. E.5 K. E. fasted for two weeks and by the end of the fast her weight was approximately 87 pounds. During the fast, Respondent was frequently out-of-town; however, K. E. was supervised by Dr. Trader, who assured her vital signs were regularly taken.6 Following the fast, K. E.'s health continued to deteriorate, and her weight dropped to approximately 77 pounds. She became concerned and sought to consult with Frank Sabatino, D.C., another "hygienic physician." Ultimately K. E. was seen by Dr. Sabatino, and also a medical doctor; however, their findings are not of record. Moreover, there was no proof offered at hearing regarding the nature of K. E.'s disorder, whether (given the nature of the disorder) a fast was or was not appropriate, whether the fast caused or contributed to any injury, or what subsequent care (if any) K. E. required. As of the date of hearing, to a lay observer, her appearance evidenced good health. To address whether Respondent's treatment met the prevailing standard of care, Petitioner offered the opinions of two chiropractic physicians, Bruce I. Browne, D.C., and Robert S. Butler, Jr., D.C.7 It was Dr. Browne's opinion that the care Respondent offered K. E., including the supervision (albeit not personal) provided for her fasting, met the prevailing standard of care, but that Respondent failed to maintain patient records that justified the course of treatment. Dr. Butler agreed the patient records were inadequate, but was also of the opinion that Respondent's care failed to meet the prevailing standard of care because he authorized a fast without first performing a complete examination to resolve whether K. E.'s condition was appropriate for a fast, or stated otherwise, whether she was physically capable of withstanding the stress of a fast. Respondent admitted, at hearing, that he had not done any examination that would permit him to appropriately treat K. E. Given the proof, it must be concluded that Respondent failed to maintain patient records regarding K. E. that justified her course of treatment. It must also be concluded that by approving a fast without an adequate examination, Respondent's care of K. E. fell below the prevailing standard. The B. D. affair In or about early November 1993, B. D., a male, and resident of the State of Washington, telephoned Respondent to arrange a visit. At the time, according to Respondent, B. D. had been hospitalized for two or three weeks and "wanted out."8 Respondent agreed.9 B. D. arrived at Club Hygiene on November 7, 1993. At the time, he was 37 years of age (date of birth June 5, 1956), 5' 9 1/2" tall, weighted 115 pounds, and was in extremely poor health. He was also HIV positive, and had developed acquired immune deficiency syndrome (AIDS).10 On presentation, as reflected by his case history, B. D. expressed to Respondent the fear or thought that he was dying, and related the following major complaints and symptoms: anal infection, frequent diarrhea, weight loss, inability to assimilate food, fatigue, and loss of energy. At the time, B. D. had been fasting for 1 1/2 days. Examination confirmed the presence of an anal infection (thought to be fungal in origin) oozing clear fluid, and further noted, inter alia, an irritated nose and throat (slight redness), and that the upper cervical and lower lumbar were tender and fixated. Heart was noted to be clear and strong, and the lungs were noted to be clear in all four quadrants. The only recommendation reflected by the patient records relates to the observation concerning the upper cervical and lower lumbar, and reads as follows: "Daily light massage, muscle release, and gentle specific adjustments. P[atien]t concerned about overall health. Monitor closely." B. D. continued his fast (water only) until November 16, 1993 (when he consumed diluted apple and celery juice), and Respondent monitored his progress on a daily basis. (Petitioner's Exhibit 5). The progress notes reflect a weight loss from 115 pounds to 102 1/2 pounds during the course of the fast, but no untoward occurrence. B. D. apparently continued on a juice diet until November 23, 1993, when he was reintroduced to solid food. By that date, B. D.'s weight was noted to have dropped to 100 pounds. On November 24, 1993, B. D.'s blood pressure was noted as 88/62 and his pulse/respiration as 74/20. He was also noted to be fatigued and he rested all day. Between November 24, 1993, and November 28, 1993, the only entry appears to be for November 26, 1993, when B. D.'s blood pressure is noted to be 100/70s. By November 28, 1993, B. D.'s blood pressure was noted to have fallen to 66/50 and his pulse/respiration was noted as 80/20. No entry appears for blood pressure or pulse/respiration on November 29; however, there was an entry that B. D. was "experiencing problem breathing." A morning entry on November 30, 1993, noted "Ronci in all 4 Quads.-very slight. Breathing extremely labored." Blood pressure was noted as 62/42 and pulse/respiration as 80/28. Respondent's progress notes contain no entries for December 1, 1993. On December 2, 1993, the notes reflect "Breathing labored still." Pulse/respiration was recorded as 80/32; however, no blood pressure reading was noted. There are no entries for December 3, 1993. On December 4, 1993, blood pressure was recorded as 62/44 and pulse/respiration as 92/32. B. D. was noted to be very fatigued. No entries appear on December 5, 1993, and on December 6, 1993, at 5:00 p.m., B. D.'s blood pressure is noted as 62/52 and pulse/respiration as 100/weak. B. D. is again noted as very fatigued, and his weight is recorded as 95 1/4 pounds. No entries appear for December 7, 1993. At 11:08 p.m., December 7, 1993, Monroe County Emergency Services were summoned to Club Hygiene by a 911 telephone call, and they arrived at 11:15 p.m. The EMT's (emergency medical technician's) report reflects that for past medical history they were advised that B. D. was HIV positive, and for chief complaint they were advised "Breathing diff[iculty] - Family states onset 1 w[ee]k, getting progressively worse." At 11:20 p.m., blood pressure was noted as 109/53 and pulse/respiration was noted as 113/40. B. D. was transported to Fishermens Hospital and he was admitted through the emergency room at 11:36 p.m. B. D. remained at Fishermens Hospital until December 20, 1993, when he was transferred to Lower Florida Keys Health System for further studies and treatment. The discharge summary from Fishermens Hospital reveals his course as follows: This is 37 year old male who presents to the Emergency Room with dyspnea, weakness for the past several days, states he has been visiting from the state of Washington with his mother and became ill while in the area. His past medical history is negative for previous hospitalization accept (sic) for surgery for right inguinal hernia he states he was found to be HIV positive seven years ago but has been in good health until recently. Family history is negative for TB, diabetes, cancer, and cardiac disease, he has no known allergies, he is single, he has been a heavy abuser of alcohol in the past until four years ago. In the past he worked as an investment consultant with Japan, he does not smoke, he uses no drugs except an occasional marijuana. He states he knows no known risks for AIDS and does not know how he contacted it.11 Review of systems denies any illness prior to be the past few weeks, prior to this admission, he states he is confused regarding his past medical history and does'nt (sic) know how he became HIV positive. Physical examination revealed emaciated 37 year old male who is on a non rebreather oxygen mask. His skin is warm and dry, pupils are equal and regular and react normally to light in accomidation (sic). Teeth are negative. Tembranic membrane is normal. Neck is subtle there is no cervical adenopathy, thyroid is smooth without enlargement, he has rales in both lungs over the entire parietal with respirations of 36 per minute, no wheezing is heard, his pulse is 92, regular sinus rhythm, there are no murmurs. Abdomen is soft without masses. Heart tenderness, there was no peripheral edema. Penial pulses are present. He is alert, although he is slightly confused regarding his recent medical history. Reflexes were equal, there is no vocal motor weakness. * * * Chest x-ray at the time of admission showed pulmonary edema, possibly non-cardiac follow up chest x-ray showed evidence of diffuse infiltrates involving the right lung and also the left lower lobe consistent with pneumocystis carinii pneumonia with evidence of bilateral pulmonary edema. Follow up chest x-ray showed increased . . . desity in the right lung infiltrate and progression of infiltrates to the left mid and lower lung fields with air bronchograms and air alveolgrams Indicating alveolar infiltrates. EKG abnormal record to the extreme right axis deviation, poor R wave progression, sinus tachycardia. Patient was seen in consultation by Dr. Halterman in the event that his respiratory status required intubation, however he never did require this. * * * He was treated in ICU, he developed a pneumothorax, spontaneous pneumothorax and was seen by Dr. Mankowitz for insertion of a chest tube, because of failure to show improvement arrangements were made for transfer to Key West for further studies and treatment and possible Phentolamine, Phetamadine. His condition upon transfer is poor. Prognosis is poor. FINAL DIAGNOSIS: Respiratory failure, secondary to diffused alveolar infiltrates, probable pneumocystis carinii pneumonia. Spontaneous pneumothorax, adult immune deficiency syndrome. B. D. was admitted to Lower Florida Keys Health System, Key West, Florida, at 2:50 p.m., December 20, 1993. Thereafter, his condition deteriorated, and at 9:17 p.m., December 26, 1993, he was pronounced dead. The death summary notes an admitting and final diagnosis as follows: ADMITTING DIAGNOSIS: Pneumonia FINAL DIAGNOSIS: Pneumonia, HIV infection, respiratory failure, respiratory complications, emphysema, cachexia Cause of death, as stated on the Certificate of Death, was cardiopulmonary failure, as a consequence of pneumonia, due to acquired immune deficiency syndrome (AIDS). To address whether Respondent's care for B. D. met the prevailing standard of care, as well as whether his records conformed to the minimum requirements of law, Petitioner again called upon Doctors Browne and Butler. With regard to the adequacy of Respondent's patient records, Doctors Browne and Butler concur, and observe that with regard to B. D., the patient records failed to conform with the minimum requirements of law (they failed to include a diagnosis or a treatment plan) and, therefore, failed to justify the course of treatment. Given the record, the opinions of Doctors Browne and Butler regarding the inadequacy of Respondent's records, as they relate to B. D., are credited. With regard to whether Respondent's treatment met the prevailing standard of care, Doctors Browne and Butler offer somewhat differing opinions. Dr. Browne was of the opinion that Respondent's treatment met the prevailing standard until November 30, 1993, when B. D.'s breathing was noted to be extremely labored. At that time, according to Dr. Browne, prevailing practice required Respondent, as a chiropractor, to cease treating B. D. and to advise him to seek relief from another practitioner who possessed the requisite skill, knowledge, and facilities to treat his ailment properly. In Dr. Butler's opinion, Respondent should have called for a chest x-ray, and his failure to do so failed to meet the prevailing standard of care.12 Respondent explained his reaction to B. D.'s congestion and labored breathing, as follows: Q. What did you do, you noted he was congested? A. I suggested he go to a hospital. Q. And his response? A. He did not want to go to a hospital. He wanted to wait it out, and I said you can wait at my house. But if you go down hill, you have to go to a hospital. Q. Is that what happened? A. Yeah. He started to become ever so slightly synodic (sic), meaning that he was breathing but he wasn't getting lots. His fingertips were starting to turn blue. * * * Q. Did you discuss with him at this time a need to get additional care? A. I discussed it with him many times, because this was not, this was not in my league. It was not in my scope. It was not - I did not have access to the tools even if I knew how to treat a man at this point. Those are my concerns for Brian. And, finally, I said, Brian, look, you have to trust my judgment, you go to the hospital whether you want to or not. Q. Who called for the ambulance? A. I have no idea. * * * Q. Did you consider the need for an x-ray when you saw Brian's breathing become labored? A. No. Q. Did you make any suggestions to him at the time you noted his breathing had become labored? A. When it became labored? Q. Yes, sir. Not that I'm aware of saying anything to him. No. I don't believe so. (Transcript, pages 174, 175, and 177). Having considered the proof, Dr. Browne's opinion is accepted as most compelling and provides the most complete description of the breadth of Respondent's obligations, as well as the scope of his breach. On the other hand, Dr. Butler's opinion (that the circumstances required a referral for chest x-ray) has not been rejected; however, Respondent's failure to refer for x-ray (when he realized B. D.'s condition was beyond his knowledge or the methods of treatment available to him) is viewed as a failing subsumed within his breach of the prevailing standard which required that Respondent cease treating B. D. and refer him to another physician who possessed the requisite skill, knowledge, and facilities to treat his ailment properly.13
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds the Respondent committed the offenses alleged in Counts I through VI of the Administrative Complaint, and which imposes, as a penalty for such violations, a suspension of licensure for a term of one (1) year, followed by a two (2) year term of probation (subject to such terms as the Board may reasonably impose), and an administrative fine of $1,000. DONE AND ENTERED this 5th day of August, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1998.
The Issue This is a license discipline case in which the Petitioner seeks to have disciplinary action taken against the Respondent on the basis of allegations that the Respondent has violated subparagraphs (m) and (t) of Section 458.331(1), Florida Statutes, by failing to keep written medical records justifying the course of treatment, and by failing to practice medicine with the appropriate level of care, skill, and treatment.
Findings Of Fact The Respondent, David Zufi, M.D., is and has been at all times material to this proceeding a licensed physician in the State of Florida, having been issued license number ME 0014856. The Respondent's last known address is 641 Reinaute Avenue, Coral Gables, Florida 33156-2345. The Respondent was and is a Board Certified plastic surgeon certified by the American Board of Plastic and Reconstructive Surgery since 1976. At all times material to this case, Dr. Ricardo Samitier-Cardet 1/ was the primary care physician or the attending physician for the Patient C.R. The Patient C.R. had sought out Dr. Samitier for the purpose of having several cosmetic surgical procedures performed; procedures which for a patient with a normal health history would have been minor cosmetic procedures. At all times material to this case, Dr. Samitier was a licensed practicing physician in the State of Florida. Dr. Samitier has never been Board Certified in any area of medicine. Dr. Samitier self-designated himself as a "cosmetic surgeon." At all times material to this case, the Respondent was unaware of any pending charges against Dr. Samitier. 2/ Prior to Friday, May 1, 1992, the Respondent was acquainted only marginally with Dr. Samitier. For a period of six months the Respondent had in the past rented office space one day a week to Dr. Samitier for consultation purposes. The Respondent had also spoken to Dr. Samitier a few times at meetings of the Coral Gables Hospital staff. The Respondent and Dr. Samitier had never shared any type of professional relationship with regard to the medical care of any patient. There were no referrals of patients between the two doctors, nor had the Respondent ever acted as a consultant in any capacity for Dr. Samitier prior to Friday, May 1, 1992. The Respondent had never visited Dr. Samitier's office prior to Friday, May 1, 1992. Dr. Samitier's medical records for the Patient C.R. include the following historical details. The patient had had an aortic valve replacement approximately twenty years earlier and had no history of angina. The patient was taking Coumadin, 5 mg. daily. The patient had no history of bleeding or hematomas and had normal erections. On Friday, May 1, 1992, at approximately 9:00 p.m., Patient C.R. underwent a Suction Assisted Lipectomy to the face, neck, and trunk, plus Circumferential Autologous Penile Engorgement (CAPE), which was performed by Dr. Samitier at Dr. Samitier's office. At the time of the foregoing surgical procedure Patient C.R. was a 47-year-old male who had previously undergone two open heart procedures, had a permanent pacemaker inserted, had a prosthetic aortic valve, and had been on Coumadin therapy for approximately twenty years. 3/ Coumadin is an anticoagulant drug which is taken to prolong a patient's blood clotting time. A patient maintained on long-term Coumadin therapy is at increased risk for clotting when the Coumadin is discontinued. The Patient C.R.'s long-term Coumadin anticoagulation therapy was made necessary by the fact that he had a prosthetic aortic valve. Before performing surgery on a patient with a history of cardiac problems such as those presented by the Patient C.R., a surgeon should obtain a cardiac clearance by means of consultation with a cardiologist. Dr. Samitier did not obtain a cardiology consultation prior to the surgery on the Patient C.R. 4/ A Prothrombin Time Test is a test which is utilized to evaluate a patient's blood clotting time. A Prothrombin Time Test should have been performed on the Patient C.R. immediately before the surgery on May 1, 1992. The test was not performed at that time. 5/ A Prothrombin Time Test was performed on the Patient C.R. about two weeks prior to the surgery. The Patient C.R. was a high risk patient who should never have been considered a candidate for elective surgery due to his history of cardiac problems, his prosthetic aortic valve, and his long-term Coumadin therapy. 6/ The two primary risks for a patient like Patient C.R. are that if his coagulation rate is substantially slower than normal the patient is at risk of uncontrollable bleeding at the surgery sites and if his coagulation rate becomes normal or slower than normal he is at risk of clot formation on his prosthetic aortic valve. Either condition can produce serious consequences, even fatality. On Friday, May 1, 1992, at approximately 11:30 p.m., which was approximately two hours after completion of the surgical procedure, the Patient C.R. began bleeding from his right cheek. It was a slow venous oozing bleed. The patient was taken back to the operating room where Dr. Samitier attempted without success to stop the bleeding with digital pressure. At approximately 2:30 a.m. on Saturday, May 2, 1992, by which time the bleeding from the patient's right cheek had persisted for approximately three hours, Dr. Samitier placed an emergency telephone call to the Respondent to request assistance in controlling the bleeding from a right buccal stab incision. The Respondent discussed the matter briefly with Dr. Samitier and told Dr. Samitier to try to control it with pressure. A few minutes later the Respondent became concerned that Dr. Samitier might need more assistance and called him back. During the second telephone call Dr. Samitier made it clear that he would feel more comfortable if the Respondent came to his office. The Respondent went to Dr. Samitier's office, arriving at approximately 3:00 a.m. on Saturday, May 2, 1992. Upon arrival, the Respondent discussed the situation with Dr. Samitier, obtained patient history information from Dr. Samitier, examined the patient, and promptly applied digital pressure with an adrenaline pad. The Respondent and Dr. Samitier alternated in the application of digital pressure and the bleeding stopped in approximately twenty minutes. There is no evidence that the patient was bleeding from any of the other surgical sites. While the Respondent was at Dr. Samitier's office, the Respondent did not review Dr. Samitier's medical chart on the Patient C.R. because he did not feel it was necessary to do so. During the entire time that the Respondent was examining, evaluating, and treating the Patient C.R., Dr. Samitier was right beside the Respondent providing the Respondent with information and answering the Respondent's questions about the patient. Under these circumstances, especially in view of the Respondent's limited role in the care of the patient, it was reasonable for the Respondent to rely on the oral information provided by Dr. Samitier and it was not necessary for the Respondent to review the written chart. 7/ Dr. Samitier advised the Respondent that the Patient C.R. had been on maintenance Coumadin and that the Coumadin had been discontinued three days prior to the surgery. Dr. Samitier also advised the Respondent that no pre- operative Prothrombin Time Test had been performed immediately prior to the surgery, and that the Patient C.R. had a pacemaker. At the time the Respondent was applying pressure to stop the oozing bleed, the Respondent was unable to communicate with the Patient C.R. because the patient was sedated with Nubain, a synthetic pain killer. Dr. Samitier explained to the Respondent that he had used Nubain during the surgical procedure and had also administered Nubain post-operatively when the patient had complained of pain during the course of Dr. Samitier's efforts to control the cheek bleeding prior to calling the Respondent. The Respondent's examination of the Patient C.R. included an examination of all of the surgical wounds inflicted during the procedures performed by Dr. Samitier, which included the cheeks, the portion of the neck immediately under the chin, and the lower abdominal area. No significant bruising or swelling was noted and no bleeding was detected at any of the incision sites other than the right buccal site which had occasioned Dr. Samitier's call to the Respondent. The Respondent looked for hematomas and ecchymosis and discoloration. There was no evidence that the patient had any generalized bleeding or hematoma at the time the Respondent was examining or treating him. During the entire time the Respondent was at Dr. Samitier's office in the early morning hours of Saturday, May 2, 1992, the Patient C.R. was connected to various monitors, all of which gave readings within normal ranges. The patient's blood pressure and pulse rate were both checked and found to be within normal ranges. While the Respondent was at Dr. Samitier's office during the early morning hours of Saturday, May 2, 1992, the Respondent discussed with Dr. Samitier the fact that the most prudent course of treatment for the Patient C.R. would be to hospitalize the patient. Dr. Samitier agreed that hospitalization would be the most prudent course, but then told the Respondent that he could not hospitalize the patient because the patient had told Dr. Samitier that he would not, under any circumstances, agree to be admitted to a hospital. Dr. Samitier also told the Respondent that the patient had said he did not want the nature of his operation to be disclosed to his wife or family members. During this discussion Dr. Samitier also disclosed to the Respondent that Dr. Samitier did not have admitting privileges at any hospital. In view of Dr. Samitier's reluctance to hospitalize the patient at that time, the Respondent told Dr. Samitier that Dr. Samitier should continue to monitor the patient and observe him clinically and if the vital signs or clinical observations demonstrated any deterioration of the patient's condition, or if the patient changed his mind about hospitalization, Dr. Samitier should call the Respondent and the Respondent would arrange to have the patient admitted into Coral Gables Hospital where the Respondent had admitting privileges. The Respondent also discussed with Dr. Samitier the need for a consultation with a cardiologist or hematologist in the event the patient were to be hospitalized. The Respondent emphasized the need for such a consultation before any action was taken to modify the patient's coagulation status. The Respondent's suggestions to Dr. Samitier regarding the future care and management of the Patient C.R. were appropriate under the circumstances. During the visit to Dr. Samitier's office during the early morning hours of Saturday, May 2, 1992, the Respondent did not recommend to Dr. Samitier that he have a Prothrombin Time Test performed on the Patient C.R. Although such a test might have been useful in the management of the patient's condition if the patient had been hospitalized, it is doubtful that the test would have served any useful purpose while the patient remained at Dr. Samitier's office. Under the circumstances, the failure to recommend a Prothrombin Time Test was not a departure from acceptable standards of medical practice. After the bleeding stopped, the Respondent remained at Dr. Samitier's office for at least two hours waiting to see if there was any recurrence of the bleeding. During that time period the Respondent examined the Patient C.R. several times to monitor his status and check for any bleeding. There was no recurrence of the bleeding from the patient's right cheek, nor was there any visible bleeding from any of the other surgical wounds. Sometime between 5:00 a.m. and 6:00 a.m. on Saturday, May 2, 1992, the Respondent left Dr. Samitier's office and returned to the Respondent's home. Dr. Samitier remained at his office to monitor and otherwise care for the Patient C.R. Dr. Samitier never contacted the Respondent to request that the Respondent arrange for the hospitalization of the Patient C.R. At approximately noon on Saturday, May 2, 1992, the Respondent was driving in his car a few blocks from Dr. Samitier's office. Because he was near Dr. Samitier's office, the Respondent decided to stop by Dr. Samitier's office to see how the patient was doing instead of making a telephone call later. The Respondent arrived at Dr. Samitier's office unannounced and inquired as to the status of Patient C.R. Dr. Samitier told the Respondent that the patient was doing fine, that his vital signs remained stable, that he was up and about, that he had taken oral sustenance, and that he had passed urine. Dr. Samitier also told the Respondent that the Respondent did not need to see the patient. After the foregoing discussion, Dr. Samitier invited the Respondent to observe a penile engorgement procedure Dr. Samitier was getting ready to perform on another patient. While walking with Dr. Samitier to the operating room, the Respondent had a brief glimpse of the Patient C.R. sitting up in bed in a small room. The Respondent continued on with Dr. Samitier and watched Dr. Samitier perform a penile engorgement procedure on another patient. After watching that procedure, the Respondent left Dr. Samitier's office. During the noon visit to Dr. Samitier's office on Saturday, May 2, 1992, the Respondent did not examine or treat the Patient C.R. On Sunday morning, May 3, 1992, at approximately 1:10 a.m., the Respondent received a telephone call from Dr. Samitier's office advising him that the Patient C.R. had gone into cardiac arrest. The Respondent went to Dr. Samitier's office. When the Respondent arrived at Dr. Samitier's office, the Patient C.R. was already being treated by emergency medical technicians. The emergency medical technicians told the Respondent that his services or assistance in the care of the patient were not needed and that they were going to transport the patient to Mercy Hospital. The emergency medical technicians took the Patient C.R. to Mercy Hospital where he was pronounced dead in the Emergency Room. The Respondent did not examine or treat the Patient C.R. during the early morning hours of Sunday, May 3, 1992. Later that same day an autopsy was performed on the body of the Patient C.R. The Respondent and Dr. Samitier attended the autopsy. The medical examiner did not come to any conclusion as to the cause of the patient's death. The Respondent did not document any of his contact with the patient C.R. in Dr. Samitier's office chart because the Respondent did not think it was necessary for him to do so. The Respondent thought it was sufficient for him to make his own record of what he did in the form of a consultation report. In the normal course of events he would have written such a report the following Monday when he got to his office, which seems to be a common practice of physicians who perform consultation services away from their own offices on weekends. There is no clear and convincing evidence that under the circumstances of this case the Respondent was required to write anything in Dr. Samitier's medical records concerning the Patient C.R. There is no established practice in this regard because it is very rare for a physician to perform consultation services in the office of another physician. Further, although consultation reports are virtually always prepared following formal consultations, when a consulting physician is called in for a very limited purpose, performs his services in the presence of the primary care physician or the attending physician, and orally advises the primary care physician or the attending physician what he has discovered or done, the consulting physician often does not prepare any written report at all, but leaves it to the primary care physician or the attending physician to memorialize what was discovered or done in the patient's chart. During the late afternoon or early evening of May 3, 1994, after the autopsy of the Patient C.R., the Respondent wrote a historical recapitulation of his involvement with the care and treatment of the Patient C.R. The record prepared by the Respondent on May 3, 1992, documents the Respondent's involvement in the care and treatment of the Patient C.R. The record demonstrates the Respondent's observations, recommendations, treatment, and the reasons why the Respondent did not get involved in all aspects of the patient's care. The record prepared by the Respondent on Sunday, May 3, 1992, was sufficiently timely to comply with applicable standards of medical care and record-keeping. The information contained in that record was sufficient to comply with applicable standards of medical care and record-keeping. The Respondent was called by Dr. Samitier for the limited function of stopping an oozing venous bleeding from an incision wound in the right cheek of the Patient C.R. The Respondent's consultation in this regard was of an informal nature and was limited in scope. His treatment of stopping the bleeding with direct pressure with an adrenalin pad was an appropriate course of treatment for the condition he was called to resolve. The Respondent was not at any time the primary care physician or attending physician for the Patient C.R.; that responsibility was at all material times the responsibility of Dr. Samitier. By assisting Dr. Samitier to stop the bleeding from one incision wound, the Respondent did not undertake, nor did he become responsible for, the overall care and management of the patient. Inasmuch as the nature of the consultation the Respondent was asked to perform was limited in scope, the Respondent's examination of the Patient C.R. was sufficient. Under the circumstances of this case it was not necessary for the Respondent to perform a comprehensive physical examination. The Respondent's authorized role in the care of the Patient C.R. was complete when he departed between 5:00 and 6:00 a.m. on the morning of Saturday, May 2, 1992. He had performed all he had been authorized to perform and, although he had offered to do more (such as arrange for the patient to be hospitalized), his offer of further assistance was rejected by Dr. Samitier. When the Respondent paid his courtesy visit to Dr. Samitier's office at about noon on Saturday, May 2, 1992, the Respondent did not have permission or authority from anyone to examine or treat the Patient C.R. At that time Dr. Samitier expressly told the Respondent that the Respondent did not need to see the patient. Under those circumstances, the Respondent had neither authority nor obligation to examine the Patient C.R. at the time of his noon visit on Saturday, May 2, 1992.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine enter a Final Order in this case dismissing all charges against the Respondent. DONE AND ENTERED this 9th day of January, 1995, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 9th day of January, 1995.
The Issue The issue in the case is whether the Respondent should grant the Petitioner’s application for licensure in Florida as a physician. Specifically, the Respondent asserts that the Petitioner’s application should be denied based on alleged inability to practice medicine with reasonable skill and safety, and on the Petitioner’s alleged material misrepresentations made during the course of the licensing process.
Findings Of Fact In February 1998, Jean Joseph Lochard, M.D., filed an application for licensure by endorsement as a physician in the State of Florida. As part of the application review process, the Petitioner disclosed that he had been involved in four malpractice claims during his medical career. Of the four, only one claim is at issue in this proceeding since it is the only one in which he was personally involved. In 1991, the Petitioner performed a completion curettage on a patient who had come to his office for treatment. At the time the patient arrived at his office, she was apparently in the process of spontaneously aborting a fetus. The Petitioner administered medication via an IV line prior to beginning the completion curettage. According to his medical records, he administered Demerol and Valium via the IV line. There is no evidence that the administration of medication was inappropriate. There is no evidence that the administration of the medication failed to meet the appropriate standard of care. After administration of the medication, the Petitioner began the completion curettage. At some point during the procedure, the patient’s breathing stopped. The Petitioner did not monitor the patient during the procedure. The Petitioner was not aware that the patient’s breathing had stopped until after he had completed the curettage. Upon noticing that the patient was not breathing, the Petitioner summoned another physician with whom he shared office space to assist in providing emergency services. Although the Petitioner’s recollection of events subsequent to the completion of the curettage is disorganized, the evidence establishes that unsuccessful attempts were made to intubate the patient and to restore the flow of oxygen to the patient. An emergency medical services team was summoned and arrived, but was unable to revive the patient. A second team was also called to the scene, and the patient was intubated and transported to a hospital, but the patient expired. The Petitioner’s failure to monitor the patient’s condition during the procedure led to a delay in provision of emergency services when her respiration stopped. The Petitioner testified that he no longer uses IV sedation in his office practice. The Respondent’s expert witness, Dr. Charles L. Cooper, opined that it was below the standard of care to perform the completion curettage without monitoring the patient’s vital signs including the patient’s pulse, respiration, and blood pressure. Dr. Cooper opined that the medication administered was not excessive. Dr Cooper opined that the medical records related to the procedure and to the emergency services provided were adequate. When asked whether the Petitioner is currently unable to practice medicine with reasonable skill and safety, Dr. Cooper was unable to offer an opinion. When asked whether this sole incident was sufficient to indicate an inability to practice safely, Dr. Cooper testified that assuming there were no others, he was unable to opine that the Petitioner was unable to practice with reasonable skill and safety. There is no evidence that the Petitioner has been personally involved in any other incidents of malpractice. The Respondent asserts that the Petitioner’s action related to this case establishes that he is not able to practice medicine with such reasonable skill and safety as to permit his licensure as a physician in the State of Florida. The evidence fails to support the assertion. The Respondent asserts that during the licensing process, the Petitioner made material misrepresentations and attempted to conceal facts related to the malpractice case. The Petitioner asserts that the "misrepresentations" are based on an alleged inability to review medical records prior to offering information to the Respondent. The Petitioner asserts that he was unaware that the Respondent would require a substantial level of information related to past malpractice claims. Question no. 31 of the application requests historic information related to malpractice actions against an applicant. The Petitioner included the 1991 incident in his response to the question. By letter dated June 18, 1998, the Petitioner was notified that the Credentials Committee of the Board of Medicine would meet with him to discuss the malpractice cases. The Petitioner did not review the 1991 case records prior to his testimony before the Credentials Committee and his recollection as to certain details of the event was erroneous. There is no evidence that his erroneous testimony was intended to mislead or conceal facts material to this case. The Petitioner did not have access to the 1991 records because they had been obtained by plaintiff’s counsel for use in the malpractice action brought by for the patient’s family. After the case was resolved, plaintiff’s counsel retained the records. The Petitioner did not retain copies of the records. The Petitioner asserts that he did not have copies of the records and that, until counsel for the Respondent in this case located them, did not know where they were maintained. The Respondent asserts that the Petitioner attempted to mislead the Board of Medicine as to the details of the medication administered to the patient during the completion curettage that led to her death. At the Credentials Committee meeting, the Petitioner testified that he administered Demerol (75mg) and Phenergan (35mg) to the patient. During a later deposition, the Petitioner testified that he administered Demerol (75mg) and Phenergan (25mg, rather than 35mg) to the patient. At the Credentials Committee meeting, the Petitioner testified that he did not use Valium when performing routine completion curettage in his office. A review of the medical records, confirmed by the Petitioner, establishes that the Petitioner administered Demerol (75mg) and Valium (5mg) to the patient. A review of the medical records establishes that he also administered Valium to the same patient two years earlier when performing a similar office procedure. There is no evidence that the actual administration of medication was improper in this case. Although the Petitioner’s statements relating to medication used in this procedure were in conflict, there is no evidence to establish that the misstatements were material. There is no evidence that the administration of any medication was improper. There is no evidence that that administration of Demerol and Phenergan would have been inappropriate had the Petitioner’s initial recollection of events been correct. The Respondent asserts that the Petitioner attempted to conceal personal information related to the patient who died as a result of the 1991 incident. In his deposition testimony, the Petitioner stated he could not recall the name of the person who referred the patient. Dr. Nazaire, a long-time friend of the Petitioner, referred the patient to the Petitioner. The Petitioner initially treated the patient in 1989 when she came to him for an abortion. The Petitioner testified that, to his knowledge, Dr. Nazaire was not the patient’s treating physician. At hearing, the Respondent implied that the patient and the referring physician had some type of personal relationship. The evidence fails to establish any such relationship. Although review of the Petitioner’s responses to questions related to the alleged relationship suggest that the Petitioner was reluctant to address these issues, there is no evidence that the existence of any alleged relationship is material to this case. There is no evidence that any alleged relationship impacted the care provided to the patient. The Respondent asserts that the Petitioner attempted to mislead the Board of Medicine by suggesting that the patient died as a result of an anaphylactic reaction to the medication he provided during the completion curettage. The Petitioner has opined on several instances that the patient could have suffered an anaphylactic reaction to the Demerol. There is no credible evidence that the patient suffered from an anaphylactic reaction to medication. The credible evidence fails to establish any cause of death. The Respondent asserts that the Petitioner attempted to mislead the Respondent by stating that he was unaware of the patient’s medical history prior to June of 1991. At one point, the Petitioner appears to testify on deposition that he did not perform any surgical procedures on this patient prior to June of 1991. The evidence establishes that the Petitioner performed an abortion on the patient in 1989. The erroneous recollection appears to be the result of confusion and the Petitioner’s failure to review medical records and does not appear to be an attempt to mislead the questioner. The Petitioner asserts that the Respondent has participated in this proceeding primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing. As set forth in the Preliminary Statement to this Recommended Order, the assertion is not supported by credible evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a final order granting the Petitioner’s application for licensure. DONE AND ENTERED this 30th day of July, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1999. COPIES FURNISHED: Allen R. Grossman Lola M. Swaby Assistant Attorneys General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Grover C. Freeman, Esquire Jon M. Pellett, Esquire Freeman, Hunter & Malloy Suite 1950 201 East Kennedy Boulevard Tampa, Florida 33602 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Tanya Williams, Executive Director Board of Medicine Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: The Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME 0031545. The Respondent practices in south Florida as a cardiologist. The Respondent treated patient William Dean from 1979 through 1982. William Dean died of heart failure on August 30, 1982. Following Mr. Dean's death, his wife, Elizabeth Dean, obtained from Respondent copies of Dean's medical records. On July 2, 1983, Elizabeth Dean filed a complaint by letter with the Department of Professional Regulation against the Respondent. As a result of Mrs. Dean's complaint, the Petitioner began an investigation of the Respondent and notified Respondent of same. In addition, Mrs. Dean sued the Respondent for malpractice. During the investigation by Petitioner, copies of Mr. Dean's records were obtained from the Respondent. When the records obtained by Petitioner were compared with the earlier records obtained by Mrs. Dean, it was discovered that Respondent had made at least two additions to them. After being notified of the complaint and investigation, the Respondent added entries to the progress notes on Mr. Dean for November 12, 1981 and May 15, 1982. Among other things, the additions to the progress notes indicated that Respondent had advised Mr. Dean to take a stress test and angiogram and that Dean had refused. The Respondent dictated Mr. Dean's patient Expiration Summary, which appears in the hospital's patient charts, on October 17, 1983, fourteen months' after Mr. Dean's death. Humana Hospital Cypress, where Mr. Dean died, requires that physicians prepare patient expiration summaries within thirty (30) days after the patient's death.
Findings Of Fact Respondent is the state agency charged with regulating the practice of dentistry, pursuant to Sections 20.165, 20.42, and Chapters 455 and 466, Florida Statutes and was not a nominal party to the proceedings. Petitioner, John Allison Rowe, D.D.S., (hereinafter referred to as Petitioner Rowe), is a Florida licensed dentist having been issued license number DN-0009364. Petitioner Rowe, at all times material hereto, practiced through a professional service corporation with principal office in the State of Florida. Petitioner, Ralph E. Toombs, D.D.S., (hereinafter referred to as Petitioner Toombs), is a Florida licensed dentist having been issued license number DN-0007026. Petitioner Toombs, at all times material hereto, practiced through a professional service corporation, with principal office in the State of Florida. Petitioner Rowe and Petitioner Toombs each employed less than twenty- five (25) employees at the time this action was initiated. Petitioner Rowe and Petitioner Toombs each had a net worth, including both personal and business investments, of less than two million dollars. In or around 1988, and in or around 1989, Respondent received several complaints from insurance companies concerning Petitioner Rowe's treatment, services, and fees charged to patients through the Central Florida Dental Association and/or other entities. Each insurance company had obtained a review of the services, treatment, and fees charged to the patients and had included that information in their complaint to Respondent. As a result, Respondent began a series of investigations into the allegations against Petitioner Rowe, whose name had appeared as the treating or certifying dentist on all health insurance claim forms submitted on behalf of the patients. The insurance companies alleged that Petitioner Rowe's fees were excessive relative to the customary and usual fees charged for the services, that certain diagnostic tests had been provided to the patients although of questionable medical necessity and acceptance in the dental community, and that certain procedures had been performed in excess of the justified needs of the patient. During the course of the investigation, it became necessary for the Respondent to consult with the Probable Cause Panel on the Board of Dentistry on or about July 12, 1989, and on or about October 13, 1989, to obtain certain patient records without patient authorization. The Probable Cause Panel of July 12, 1989, was composed of members Robert Ferris, D.D.S., Orrin Mitchell, D.D.S., and Thomas Kraemer. Each of the panel members at the July 12, 1989, meeting indicated that they had received and reviewed the Department's investigative materials. The July 12, 1989, panel found-reasonable cause to believe that there was a question of the medical necessity for the treatment provided such that Petitioner Rowe had practiced below prevailing standards and authorized the Department pursuant to Section 455.241(2), Florida Statutes, to seek the patient's records by subpoena. On or about October 13, 1989, the Respondent again consulted with panel members Robert Ferris, D.D.S., Orrin Mitchell, D.D.S., and Thomas Kraemer to determine if reasonable cause existed to obtain certain patient records as part of its investigation of Petitioner Rowe. Each of the panel members indicated at the October 13, 1989, meeting that he had received and reviewed the investigative materials presented by the Respondent. The October 13, 1989, panel found reasonable cause to believe that there was a question of medical necessity for the treatment provided to the patient such that Petitioner Rowe had practiced below prevailing standards and authorized the Department pursuant to Section 455.241(2), Florida Statutes, to seek patients' records by subpoena. Following completion of its investigation, on or about April 10, 1991, Respondent initiated an action against Petitioner Rowe, within the meaning of Section 57.111(3)(b)(3), Florida Statutes, through the filing of an Administrative Complaint against his license to practice dentistry. Each count of the April 10, 1991, Administrative Complaint filed against Petitioner Rowe represented a separate Department investigation and a separate case number was assigned to each investigation by Respondent as follows: Count I patient H.W. DBPR Case No. 01-11379 Count II patient E.M. DBPR Case No. 89-02166 Count III patient J.T. DBPR Case No. 89-13187 Count IV patient M.Z. DBPR Case No. 89-02167 Count V patient M.R.V. DBPR Case No. 89-02372 Respondent alleged in the April 10, 1991 Administrative Complaint that Petitioner Rowe committed the following violations with respect to each patient: Patient H.W. (Count I) Section 466.028(1)(n), Florida Statutes, by exercising influence over the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party: Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; and Section 466.028(1)(u), Florida Statutes, by having engaged in fraud, deceit, or misconduct in the practice of dentistry or dental hygiene. Patient E.M. (Count II) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(n), Florida Statutes, by exercising influence over the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient J.T. (Count III) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient M.Z. (Count IV) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient M.R.V. (Count V) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. (Ex-A pgs. 1-18). The April 10, 1991 Administrative Complaint was filed at the direction of the November 2, 1990 Probable Cause Panel of the Board of Dentistry. The panel was composed of members Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson. The investigative reports, including the consultant's opinion for each report, were on the agenda for the November 2, 1990 panel meeting with the Department's recommendation that an administrative complaint be filed against Petitioner Rowe. Each panel member acknowledged that he had received the investigative materials and that he had reviewed the materials that were on the agenda for the meeting. After brief discussion and receipt of the advice of counsel, the Panel separately took up each investigative report but recommended that the Department consider consolidation of the charges into a single filed administrative complaint The Panel members felt very strongly about the charges as revealed by the investigative reports and consultant's opinions, and in accordance with Section 466.028(7), Florida Statutes, the panel recommended that the Department seek revocation of licensure in the disciplinary proceeding. Prior to presentation of the investigative reports for a determination of probable cause, the Department obtained the assistance of Howard L. Lilly, Jr., D.D.S., M.S. to provide an expert opinion of the materials gathered during the investigation. The Department's decision to seek and expert opinion was done with the concurrence of the June 4, 1990, Probable Cause Panel and pursuant to Section 455.203(6), Florida Statutes and Rule 21-1.012, Florida Administrative Code. On or about June 4, 1990, the Department presented the investigative reports to the Probable Cause Panel composed of Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson for purpose of determining the need for expert review. The Panel expressed concerns about Petitioner Rowe's statements regarding the billing practices at the dental practice and the justification for his treatment and the fees charged for the services. The Panel found that expert review was necessary. On or about July 18, 1990, Respondent forwarded the investigative reports to Howard Lilly, D.D.S., M.S., for his review and opinion. On or about August 29, 1990, September 11, 1990, September 17, 1990, and September 18, 1990, Dr. Lilly issued individual detailed reports from review of the investigative materials noting several areas of concern with each patient's treatment and the billing associated with that treatment. As had the June 4, 1990, Probable Cause Panel, Dr. Lilly noted that Petitioner Rowe seemed to disclaim any responsibility for what was taking place in the dental practice, particularly with respect to patient billing and the fees charged for patient treatment and services. The November 2, 1990, panel, composed of the same membership as the June 4, 1990, meeting, expressed similar concerns regarding Petitioner Rowe and an apparent lack of concern for treatment effectiveness. Panel member Robert Ferris, D.D.S. expressed praise for Dr. Lilly's reports noting that they were "excellent." The panel's findings were supported by the investigative reports which contained at least patient records and billing records certified as complete by the records custodian, interviews and statements of Petitioner Rowe and Petitioner Toombs, interview and statements from Frank Murray, D.D.S., recorded statements from a meeting between Petitioner Rowe and Dr. Murray over alleged embezzled funds, and Dr. Lilly's consultant opinion. The investigative reports revealed that Petitioner Rowe delegated responsibility for patient billing to the staff of the dental practice, that he did not see the bills before they were submitted to the insurance carriers or the patients, and that he had given staff the authority to sign the claim forms on his behalf or had signed blank insurance claim forms for use by the staff. Dr. Lilly found that in some cases diagnostic services had been billed twice on the same day although it was customary in the profession to perform the services in one session, that services had been billed which had not been provided to the patients, records were inadequate to justify those services provided, that treatment was provided without appropriate use of diagnostic information, orthotic devices were mischaracterized as surgical devices, fees greatly exceeded the usual and customary charges for certain services, questionable use of arthrogram studies was employed by Petitioner Rowe, certain other diagnostic studies conducted on the patients were of questionable medical necessity, and Petitioner Rowe had misdiagnosed a patient's condition. On or about July 24, 1991, Respondent initiated a second action against Petitioner Rowe, within the meaning of Section 57.111(3)(b)(3), Florida Statutes, through the filing of an Administrative Complaint against his license to practice dentistry. Each count of the July 24, 2991 Administrative Complaint filed against Petitioner Rowe represented a separate Department investigation and a separate case number was assigned to each investigation by Respondent as follows: Count I patient H.D. DBPR Case No. 01-11377 Count II patient R.M. DBPR Case No. 01-11378 Count III patient S.R. DBPR Case No. 01-12140 Respondent alleged in the July 24, 1991, Administrative Complaint that Petitioner Rowe committed the following violations with respect to each patient: Patient H.D. (Count I) Section 466.028(1)(n), Florida Statutes, by exercising influence over the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party: Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(u), Florida Statutes, by having engaged in fraud, deceit, or misconduct in the practice of dentistry or dental hygiene. Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; and Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Patient R.M. (Count II) Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(u), Florida Statutes, by having engaged in fraud, deceit, or misconduct in the practice of dentistry of dental hygiene. Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient S.R. (Count III) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. The July 24, 1991, Administrative Complaint was filed at the direction of the April 10, 1991, Probable Cause Panel of the Board of Dentistry. The panel was composed of members Donald Cadle, D.M.D., William Robinson, D.D.S., and Robert Hudson. The investigative reports, including the consultant's opinion for each report, were on the agenda for the April 10, 1991, panel meeting with the Department's recommendation that an administrative complaint be filed against Petitioner Rowe. Each panel member acknowledged that he had received the investigative materials and that he had reviewed the materials that were on the agenda for the April 10, 1991, panel meeting. After brief discussion and receipt of the advice of counsel, the Panel considered the three investigative reports together and recommended that the Department file charges as a single filed administrative complaint. The Panel members in accordance with Section 466.028(7), Florida Statutes, recommended that the Department seek revocation of licensure in the disciplinary proceeding. Prior to presentation of the investigative reports for a determination of probable cause, the Department obtained the assistance of Howard L. Lilly, Jr., D.D.S., M.S. to provide an expert opinion of the materials gathered during the investigation. The Department's decision to seek an expert opinion was done with the concurrence of the April 27, 1990, Probable Cause Panel and pursuant to Section 455.203(6), Florida Statutes and Rule 21-1.012, Florida Administrative Code. On or about April 27, 1990, the department presented the investigative reports to the Probable Cause Panel composed of Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson for purpose of determining the need for expert review. The Panel expressed concerns about Petitioner Rowe's statements regarding the billing practices at the dental practice and the justification for his treatment and the fees charged for the services. The Panel found that expert review was necessary. On or about December 13, 1990, Respondent forwarded the investigative reports to Howard Lilly, D.D.S., M.S., for his review and opinion. On or about February 21, 1991, February 27, 1991, and February 28, 1991, Dr. Lilly issued individual detailed reports from review of the investigative materials again noting several areas of concern with each patient's treatment and the billing associated with that treatment. Dr. Lilly again noted that Petitioner Rowe seemed to disclaim any responsibility for what was taking place in the dental practice, particularly with respect to patient billing and the fees charged for patient treatment and services. Dr. Lilly noted that, despite the verification of completeness of records executed by the records custodian and obtained during the investigation of the allegations against Petitioner Rowe, certain patient records and billing information were clearly missing from some patient files. Despite lack of detailed discussion about the Department's recommendations, the April 10, 1991, panel's findings were supported by the investigative reports which contained at least patient records and billing records certified as complete by the records custodian, interviews and statements of Petitioner Rowe and Petitioner Toombs, interview and statements from Frank Murray, D.D.S., recorded statements from a meeting between Petitioner Rowe and Dr. Murray over alleged embezzled funds, and Dr. Lilly's consultant opinions. The investigative reports revealed that Petitioner Rowe delegated responsibility for patient billing to the staff of the dental practice, that he did not see the bills before they were submitted to the insurance carriers or the patients, and that he had given staff the authority to sign the claim forms on his behalf or had signed blank insurance claim forms for use by the staff. Dr. Lilly's findings from review of DBPR Case Numbers 01-11377, 01- 11378 and 01-12140 were not dissimilar from those found in reviewing other investigative reports concerning Petitioner. Respondent's investigation of the allegations against Petitioner Rowe was extensive and included information gathering and interviews with the patients, Petitioner Rowe, Frank Murray, D.D.S., and others. On or about December 20, 1990, Respondent initiated an action against Petitioner Toombs, within the meaning of Section 57.111(3)(b)(3), Florida Statutes, through the filing of an Administrative Complaint against his license to practice dentistry. The December 20, 1990, Administrative Complaint filed against Petitioner Toombs concerned allegations filed by patient J.T., who had also filed a similar complaint against Petitioner Rowe. Both Petitioner Rowe and Petitioner Toombs disclaimed any knowledge about the care and treatment J.T. had received from them. Petitioner Toombs claimed that Petitioner Rowe and Dr. Frank Murray were responsible for setting the fees charged for services. Petitioner Toombs claimed that he was aware excessive charges had been incurred by some patients who had seen Petitioner Rowe and that the dental practice was aware of the problem and had ignored the problem. Respondent's investigation of Petitioner Toombs was coordinated with its investigation of Petitioner Rowe. In the Administrative Complaint filed December 20, 1990, Respondent alleged that Petitioner Toombs committed the following violations: Patient J.T. Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient. The December 20, 1990, Administrative Complaint was filed at the direction of the November 2, 1990, Probable Cause Panel of the Board of Dentistry, which had also considered the investigative materials for Petitioner Rowe. The panel was composed of members Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson. The investigative reports, including the consultant's opinion for each report, were on the agenda for the November 2, 1990, panel meeting, with the Department's recommendation that an administrative complaint be filed against Petitioner Toombs. Each panel member acknowledged that he had received the investigative materials and that he had reviewed the materials that were on the agenda for the November 2, 1990, panel meeting. After brief discussion and receipt of the advice of counsel, the Panel considered the investigative report and recommended that the Department file and administrative complaint against Petitioner Toombs. The Panel members in accordance with Section 466.028(7), Florida Statutes, recommended that the Department seek a suspension, probation, and fine in the disciplinary proceeding. Prior to presentation of the investigative reports for a determination of probable cause, the Department obtained the assistance of Howard L. Lilly, Jr., D.D.S., M.S. to provide an expert opinion of the materials gathered during the investigation. The Department's decision to seek an expert opinion was done with the concurrence of the June 4, 1990, Probable Cause Panel and pursuant to Section 455.203(6), Florida Statutes and Rule 21-1.012, Florida Administrative Code. On or about June 4, 1990, the Department presented the investigative report to the Probable Cause Panel composed of Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson for purpose of determining the need for expert review. The June 4, 1990, Probable Cause Panel expressed specific concerns about the billing practices and on the care provided to the patient, i.e., the immediate seeking of oral surgery prior to excluding the use of less invasive techniques. The Panel found that expert review as necessary. On or about July 18, 1990, Respondent forwarded the investigative report for Petitioner Toombs, as well as the reports for Petitioner Rowe, to Howard Lilly, D.D.S., M.S., for his review and opinion. On or about August 29, 1990, Dr. Lilly issued his report from review of the investigative materials noting several areas of concern with patient J.T.'s treatment and the billing associated with treatment. Dr. Lilly noted that Petitioner Toombs seemed to disclaim any responsibility for what was taking place in the dental practice, particularly with respect to patient billing and the fees charged for patient treatment and service. Despite lack of detailed discussion about the Department's recommendation for Petitioner Toombs, the November 2, 1990, panel's findings were supported by the investigative reports which contained at least patient records and billing records certified as complete by the records custodian, interviews and statements of Petitioner Rowe and Petitioner Toombs, interview and statements from the patient J.T., interview and statements from Frank Murray, D.D.S., recorded statements from a meeting between Petitioner Rowe and Dr. Murray over alleged embezzled funds, and Dr. Lilly's consultant opinions. Respondent's investigation of the allegations against Petitioner Toombs was extensive and included information gathering and interviews with the patient, Petitioner Rowe, Petitioner Toombs, subsequent providers, Frank Murray, D.D.S., and others. On or about July 24, 1991, Respondent amended the Administrative Complaint filed against Petitioner Toombs without substantially altering the alleged violations committed by Petitioner Toombs. In each case, Respondent was required by Section 455.225(4), Florida Statutes, to file the administrative complaints at the direction of the Probable Cause Panel for the Board of Dentistry and prosecute the administrative complaints against the Petitioners according to Chapter 120, Florida Statutes. Both Petitioner Rowe and Petitioner Toombs disputed the allegations of the administrative complaints and the cases were referred to the Division of Administrative Hearings for formal hearing. Petitioner Rowe, without objection from Respondent, sought consolidation of DOAH Case Number 91-03213, representing the charges of the April 10, 1991, Administrative Complaint against him, with DOAH Case Number 91- 6022, representing the charges of the July 24, 1991, Administrative Complaint against him. Petitioner Rowe's cases were consolidated into a single proceeding on or about October 2, 1991. On or about October 18, 1991, this Hearing Officer entered an Order to Show Cause why Petitioner Toombs' case should not be heard concurrently with Petitioner Rowe's consolidated cases. Respondent did not object to hearing the cases concurrently and an Order was issued on November 4, 1991, setting Petitioner Toombs case for hearing concurrently with Petitioner Rowe's consolidated cases. On or about November 4, 1991, Respondent with the full agreement and consent of Petitioners Rowe and Toombs, requested consolidation of the then existing two proceedings. On or about November 18, 1991, the proceedings against Petitioners Rowe and Toombs were consolidated into a single action by Order of this Hearing Officer. During discovery, Petitioner Rowe obtained the original patient records for the eight patients at issue in the consolidated proceeding from Dr. Murray and/or the Central Florida Dental Association. Counsel for Petitioner Rowe provided the Respondent with copies of the records he had obtained in discovery. Counsel for Petitioner Rowe found that approximately 426 pages of records were then contained in the files of Dr. Murray and/or the Central Florida Dental Association, which had not been previously provided to the Respondent despite certification that the records provided to Respondent were complete. The majority of the records obtained by Petitioner Rowe, subsequent to the original finding of probable causes, were records of billing information not previously contained in the patient records. Based on the additional records, Petitioner Rowe and the Respondent moved this Hearing Officer to permit Respondent to amend the administrative complaints against Petitioner Rowe, which request was granted by this Hearing Officer. On or about April 9, 1992, Respondent conferred with the Probable Cause Panel of the Board of Dentistry for the purpose of amending the administrative complaints against Petitioner Rowe. The April 9, 1992, Probable Cause Panel was composed of members William Robinson, D.D.S., Faustino Garcia, D.M.D., and Robert Hudson. Prior to presentation of the proposed amended administrative complaint to the April 9, 1992, Probable Cause Panel, Respondent obtained the assistance of Reda A. Abdel-Fattah, D.D.S. in evaluating the patient records and in the drafting of the amended complaint. Prior to the Panel's consideration of the investigative materials, the Respondent obtained from Petitioner Rowe approximately 426 additional pages from the patient records of the Central Florida Dental Association and/or Dr. Murray and received additional records and information through supplemental investigation. Before directing that an amended administrative complaint be filed against Petitioner Rowe, the panel members at the April 9, 1992, meeting indicated that he had received the investigative materials and reviewed the materials along with the Department's recommendation to amend the complaint. Following receipt of the material and after having the opportunity to inquire of counsel, the April 9, 1992, Probable Cause Panel directed that the proposed Amended Administrative Complaint be filed against Petitioner Rowe. The Amended Administrative Complaint was filed against Petitioner Rowe, at the direction of the April 9, 1992, Probable Cause Panel, on or about April 22, 1992, and alleged the following violations: Count I Section 466.028(1)(b), Florida Statutes by having had a license to practice dentistry acted against by the licensing authority of another state; and/or Section 466.028(1)(jj), Florida Statutes by having failed to report to the Board, in writing, within 30 days if action has been taken against one's license to practice dentistry in another state. Count II patient H.W. DBPR No. 01-11379, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1978) by making deceptive, untrue or fraudulent representations in the practice of dentistry. Count III patient E.M. DBPR No. 89-02166, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; Section 466.028(1)(bb), Florida Statutes (1987) through violation of Section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry, Count IV patient M.Z. DBPR No. 89-02167, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry, Count V patient R.P.V. [sic, M.R.V.] DBPR No. 89-2372, DOAH No. 91-3213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; Section 466.028(1)(bb), Florida Statutes (1987) through violation of Section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonable calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count VI patient H.D. DBPR No. 01-11377, DOAH No. 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count VII patient R.M. DBPR No. 01-11378, DOAH No. 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count VIII patient S.R. DBPR No. 01-12140, DOAH 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count IX patient J.T. DBPR No. 89-13187, DOAH No. 91-3213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count I of the Amended Administrative Complaint was based on records obtained from the Tennessee Board of Dentistry and had not been previously charged as a violation in this proceeding. Panel Member Donald Cadle, D.M.D., had originally requested in the meeting of April 27, 1990, that the Department included findings as to the Tennessee Board of Dentistry's discipline of Petitioner Rowe in its expert review as possible violation of Section 466.0268(1)(jj), Florida Statutes. Dr. Cadle withdrew his request, after discussion with Panel Member Robert Ferris, D.D.S., finding that the previous disciplinary action was too remote in time for the statute to be applicable in Petitioner Rowe's case. The Probable Cause Panel of April 9, 1992, revisited the issue of the Tennessee Board of Dentistry's discipline of Petitioner Rowe and found that it should be included in the current disciplinary proceeding as part of the amended complaint. The panel failed to recognize the effective date of Section 466.028(1)(jj), Florida Statutes. After considering the additional records provided by Petitioner Rowe and the records obtained in supplemental investigation, the Amended Administrative Complaint dropped the previous allegations that Petitioner Rowe had violated Section 466.028(1)(m), Florida Statutes by failing to keep adequate written records for each patient. The remaining allegations of the original administrative complaints filed against Petitioner Rowe were included in the Amended Administrative Complaint and the following additional allegations were made for each patient: Count II patient H.W. DBPR No. 01-11379, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count III patient E.M. DBPR No. 89-02166, DOAH No. 91-03213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(bb), Florida Statutes (1987) through violation of section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition; and Count IV patient M.Z. DBPR No. 89-02167, DOAH No. 91-03213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry. Count V patient R.P.V. [sic, M.R.V.] DBPR No. 89-2372, DOAH No. 91-3213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(bb), Florida Statutes (1987) through violation of section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition; and Count VI patient H.D. DBPR No. 01-11377, DOAH No. 91-6022 Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Count VII patient R.M. DBPR No. 01-11378, DOAH No. 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Count VIII patient S.R. DBPR No. 01-12140, DOAH No. 91-6022 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Count IX patient J.T. DBPR No. 13187, DOAH No. 91-3213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(jj), Florida Statutes was added as a disciplinary provision for the Board of Dentistry effective July 6, 1990, pursuant to Section 3, Chapter 90-341, Laws of Florida (1990). Section 466.028(1)(n), Florida Statutes was repealed effective April 8, 1992, pursuant to Section 6, Chapter 92-178 Laws of Florida (1992). A formal hearing was held on the charges of the Amended Administrative Complaints beginning on or about November 9, 1992, and ending on or about November 13, 1992. As sanction for his non-compliance with prehearing discovery, Petitioner Toombs was limited at the formal hearing to the cross-examination of witnesses and the ability to object to evidence but was not permitted to call witnesses or enter evidence on his behalf. At the formal hearing, the patient records were found to be inherently unreliable and untrustworthy as evidence, due to the inconsistencies found to then exist in the patient records. At the formal hearing, it was established that Frank Murray, D.D.S. had custody and control of the patient records and that he had full control over patient billing and the fees charged for the treatment or services rendered through the Central Florida Dental Association. At the time Petitioner Rowe provided treatment or services to the patients who were the subject of the administrative complaints and amended administrative complaints, Petitioner Rowe was an employee and a shareholder of the Central Florida Dental Association. At the time that Petitioner Rowe provided treatment or services to the patients at issue in the underlying disciplinary proceeding, Frank Murray, D.D.S. made all operational decisions affecting the clinic and its patients. Petitioner Toombs was an associate dentist working for the Central Florida Dental Association and was not a shareholder of the clinic. At the time these cases were investigated, Respondent permitted individuals from whom patient records were sought to copy those records and provide the records to Respondent with an executed verification of completeness of records. For each patient who was the subject of the Respondent's investigation, an employee of the Central Florida Dental Association copied the patient records and submitted the records to the Respondent's investigator with a verification of completeness of records. There was no reason for the investigator to question the accuracy of the executed verification of completeness of records and the patient records appeared generally consistent across patient files. On or about January 11, 1994, the Board of Dentistry entered a Final Order in the consolidated action finding that Petitioner Rowe had violated Section 466.028(1)(b), Florida Statutes. On or about January 11, 1994, the Board of Dentistry entered a Final Order in the consolidated action dismissing all charges against Petitioner Toombs and the remaining charges against Petitioner Rowe. At the time services were provided to the patients by Petitioners Rowe and Toombs, Section 466.018, Florida Statutes, required that there be a dentist of record identified in the patient record. Section 466.018, Florida Statutes (1987) provided that the dentist of record was presumed responsible for the patient's care and treatment unless otherwise noted in the record. The records maintained for each of the patients at issue in the underlying disciplinary proceeding revealed that either no dentist of record had been charted or that Petitioner Rowe was the treating dentist of record as indicated by the patient medical history form and the health insurance claim forms submitted on behalf of the patient. Absent the identification of the dentist of record in the chart, Section 466.018(2), Florida Statutes (1987) provided that the owner of the dental practice was the dentist of record for the patient, in this case, Frank Murray, D.D.S., Petitioner Rowe, and the other shareholders of the dental practice. Section 466.018(4), Florida Statutes provided that a dentist of record could be relieved of his/her responsibility to maintain dental records by transferring records to the owner dentist and maintaining a list of all records transferred. There was no evidence presented during the investigation of the underlying disciplinary proceeding or offered at formal hearing to demonstrate that either Petitioner Rowe or Petitioner Toombs had complied with Section 466.018(4), Florida Statutes in transferring patient records to Frank Murray, D.D.S. or the Central Florida Dental Association, i.e., a written statement signed by dentist of record, the owner of the practice, and two witnesses, that listed the date and the records transferred to either Frank Murray, D.D.S. or Central Florida Dental Association.
Recommendation Based on the foregoing, it is hereby, ORDERED: That Petitioners' requests for award of attorney's fees and costs are DENIED. DONE AND ORDERED this 23rd day of November, 1994, in Tallahassee, Leon County, Florida. MARK 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 23rd day of November, 1994. APPENDIX The following constitute specific rulings on the findings of fact proposed by Petitioners, pursuant to Section 120.59(2), F.S. Adopted in Paragraph 1. & 3. Rejected as unnecessary. Adopted in part in Paragraph 64. The charges with regard to influence for financial gain were included in the amended complaint. & 6. Rejected as immaterial. The panel explained in an earlier meeting that its real concern was with the exercise of influence for financial gain. Rejected as contrary to the weight of evidence. Adopted in Paragraph 54. Rejected as argument that is not supported by the record or immaterial. Adopted in conclusions of law, as to section 57.111, but rejected-as immaterial as to section 120.59(6)(a), F.S. since the agency is not a "nonprevailing party". Adopted in conclusions of law. This finding is, however, disputed by Respondent. Adopted in Paragraphs 2 and 3. Adopted in Paragraph 4 14.-16. Rejected as contrary to the weight of evidence. 17.-19. Rejected as unnecessary, given the conclusion that the complaints were "substantially justified" at the time they were filed. COPIES FURNISHED: Mr. William Buckhalt Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0765 Harold D. Lewis, Esquire General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 George Stuart, Secretary Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Brooten, Jr., Esquire 660 West Fairbanks Avenue Winter Park, Florida 32789 Jon M. Pellett, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe St., Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether disciplinary action should be taken against the license to practice medicine of Respondent, Carl Fromhagen, M.D., based on allegations that he violated Subsections 458.331(l)(k),(m) and (t), Florida Statutes, as alleged in the Administrative Complaint in this proceeding.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioner is the state agency charged with regulating the practice of medicine in the State of Florida pursuant to Section 20.43, Florida Statutes, and Chapters 455 and 458, Florida Statutes. At all times material to this proceeding, Respondent was a licensed physician in the State of Florida, having been licensed in 1956 and issued License No. ME 0007027. Respondent is board-certified in Obstetrics and Gynecology (1967). He is 74 years old and now has an office- based practice treating only gynecological patients. Patient K. B., a 46-year-old female, first presented to Respondent on September 6, 1990, with menopausal complaints. Her patient's history reflects that she reported a family history of breast cancer. On February 12, 1992, Patient K. B. presented to Respondent with complaints of a mass in her left breast. Respondent palpated a mass in K. B.'s left breast and, although he did not note the size of the mass in his office records, the records contain a diagram showing the location of the mass. Petitioner testified that it was his practice that when he discovered a mass of less than 2.5 centimeters, he did not describe the size because its too hard to identify the exact dimensions smaller than an inch. Respondent ordered a mammogram for Patient K. B. which was performed on February 19, 1992, and was interpreted as revealing no evident neoplasm (cancer). Respondent saw Patient K. B. in his office on the following dates (after the mammogram): March 30, 1992; May 21, 1992; August 31, 1992; April 19, 1993; April 27, 1993; May 4, 1993; May 11, 1993; May 18, 1993; September 21, 1993; and November 16, 1993. In addition, Patient K. B. had telephone contact with Respondent's office staff to have prescriptions refilled and was mailed examination reminder notes. Patient K. B. testified that she and Dr. Fromhagen discussed the breast mass "every checkup, every time I was there." She inquired about a follow-up mammogram and Dr. Fromhagen indicated that she could wait two years. He did not mention a biopsy, excision, or referral to another physician at anytime. Patient K. B. and Respondent agree that Respondent examined and palpated the breast mass during her physical examinations which took place approximately every six months. During civil litigation that preceded the instant administrative hearing, it became apparent that there were two different sets of office records for Patient K. B. Patient K. B. testified that during the civil action she brought against Respondent in 1996, Respondent had produced medical records, purported to be hers that did not accurately reflect her treatment. She recalled that upon comparing the medical records Respondent had produced in the civil action with the records she had obtained from Respondent's office in December 1994, she discovered that Respondent had "augmented" her records, which she reported to her attorney. In May 1994, the offices of Dr. Paul Straub, who became Patient K. B.'s new treating physician as a result of a change in her group health insurance, requested her medical records from Dr. Fromhagen's office. Dr. Fromhagen testified in the instant hearing that "at the time . . . I compared the chart [Patient K. B.'s records] with . . . 'day sheets' and because I felt the records did not reveal everything that Dr. Straub should be aware of, I rewrote certain portions of them to reflect things that were on the day sheets that I hadn't already written down and then [in May 1994] sent the records to Dr. Straub." Patient K. B. testified that, "the night before my surgery" [December 1994] she received a call from Dr. Fromhagen's office asking if they could send her records to Dr. Straub. In the course of that discussion, Patient K. B. advised that she had been diagnosed with breast cancer and was scheduled for surgery. That same evening, shortly after the phone discussion with Dr. Fromhagen's office, Patient K. B. went to Dr. Fromhagen's office and obtained a copy of her medical records. These records did not contain the "rewritten portions" Dr. Fromhagen reported as having been done in May 1994. Dr. Fromhagen testified that he started keeping "day sheets" when he first started practicing in 1960. The "day sheets" (Respondent's Exhibit 2) are essentially a daily calendar organized by time which lists the name of patients to be seen that day and then notes such as "ovarin cyst," "vaginitis," "preg?" These "day sheets" were not mentioned in either of Dr. Fromhagen's depositions taken in 1996 in the civil action. In Petitioner's Exhibit 10, a July 3, 1997, letter to M. S. Sutton, an Agency for Health Care Administration investigator, Dr. Fromhagen attempts to explain his record- keeping practice for patients, Dr. Fromhagen acknowledges rewriting his charts and states, "I would carefully review the chart and address any portions that I felt were not completely explanatory, or that I thought need information to assist the subsequent physician. I now understand that I should have noted the changes as late entries and dated them the date written." No mention was made of "day sheets" in this letter. Dr. Fromhagen testified during a deposition taken in the civil action that his standard practice was "to make entries in the chart right away," that he never put it off, and that he had not done anything different in Patient K. B.'s case. Dr. Fromhagen acknowledged that during a deposition taken in the civil action he had incorrectly testified that he had not made changes in Patient K. B.'s medical record. The following is a comparison of the significant difference between Petitioner's Exhibit 9, Patient K. B.'s original medical record, and Respondent's Exhibit 3, Patient K. B.'s "augmented" medical record. Please note: Patient K. B. became Dr. Fromhagen's patient on September 6, 1990. No changes were made in the "Gynecologic History and Physical Examination" (Patient K. B.'s medical record) on any entry until March 30, 1992. Changes are highlighted. Date: March 30, 1992 Original record: "Mammogram was neg. palpation indicates mass much smaller. Will follow" Augmented record: "Mammogram reported as no evidence of neoplasm. Palpation indicates to me that mass is smaller. Discussed removing it" Date: May 21, 1992 Original record: "Dysuria General Malaise. Pelvic unremarkable. Urine - pus. Rx Macrodantin" Augmented record: "Dysuria. Mailaise. Pelvic unremarkable. Urine - pus. Rx Macrodantin" Date: August 31, 1992 Original record: "Introital lesions. Pelvic area feels congestion and cramping sensation. Pelvic- ulcers-blisters at introitus but very small. Herpes? Rx Zoirax" Augmented record: "Introital lesions. Lower abd cramping. Pelvic - herpetic ulcers at introitus. Rx Ziorax" Date: April 19, 1993 Original record: "Last mammogram revealed no concern. Dysuria. Frequent UTI. Had a cysto before. Rhinorrhea. Vulvar irritation. GenPE. Breasts unchanged. Pelvic - fungus. Rx She has Monistat. Urine - pus Macrodantin. RV Cysto" Augmented record: "Last mammogram revealed no neoplasm but mass still present and I suggested another x-ray now or removal of mass if she wishes. Dysuria. Has frequent UTIs. Had a Cysto before. Rhinorrhea. Vulvar irritation. Gen PE - nasal turbinates swollen. Breasts unchanged. Pelvic-fungus. Rx she has Monistat for fungus. Macrodantin RV Cysto" Date: April 27, 1993 Original record: "Cysto: stricutre. Proximal urethra & trizone inflamed and granules. Bladder capacity - first desire to void at 200 c.c. RV dilations" Augmented record: "Cysto-urethral stricture. Proximal urethra & trizone inflamed & granular. Urethra L46. Bladder capacity - first desire to void at 200 cc. Rx RV dilations" Date: May 18, 1993 Original record: "No urinary complaints now. Sounded #32 irrigated AgNO3. This concludes dilations" Augmented record: "No urinary complaints now. Sounded #32, irrigated AgNO3. This concludes diations. She has not gotten this years mammogram yet" Date: October 11, 1993 Original record: "Rem sent" [entry made by office staff]" Augmented record: "Reminder note sent - Exam due." [entry made by office staff]" Date: November 16, 1993 Original record: "On Premarin.625. Starting to awaken in the middle of the night again Nervous. No flashes. Bladder OK. New glasses. Trouble adjusting to fidders bifocals. GenPE, breasts & pelvic unchanged. Pap change to Premarin 1.25" Augmented record: "On Premarian.625. Starting to awaken in the middle of the night again. Very nervous. No flashes. Bladder OK. Finds it hard to adjust to her new bifocals. Gen PE unchanged. Breasts - mass still present. Again suggested she get a yearly mammogram or have mass excised. She has not arranged for a mammogram as she said she would. Pelvic unchanged. Rx Increased dose of Premarian to 1.25" The entries made in patient K. B.'s "augmented" record (Respondent's Exhibit 3) were not noted to be "late entries" nor were they dated. Both expert witness opined that this fell below the standard of care. Most of the "late entries" made by Respondent in the "augmented" record (Respondent's Exhibit 3) are a self-serving attempt by Respondent to create the impression that he had encouraged Patient K. B. to have follow-up mammograms or to have the breast mass excised. If the "augmented" record (Respondent's Exhibit 3) was a true reflection of the treatment rendered Patient K. B. by Respondent, his treatment could possibly have met the "standard of care." I find that the "augmented" record does not reflect the treatment Patient K. B. received, but that the original record (Petitioner's Exhibit 9) is the more credible document and accurately reflects Respondent's treatment of Patient K. B. Dr. Nelson, who testified as an expert witness, testified that Dr. Fromhagen fell below the standard of care in that (relying on both the original record and "augmented" record) between March 30, 1992, and April 13, 1993, he did not "deal with the breast mass, did not report discussion of treatment options with the patient, did not order a follow-up mammogram within 12 months." Again relying on both records, Dr. Nelson testified that Dr. Fromhagen fell below the standard of care for maintaining medical records when he failed to record his examination of Patient K. B.'s breasts and palpation of the mass which he reported as having been done "every visit she made." Both Dr. Von Thron, who also testified as an expert witness, and Dr. Nelson agreed that the standard of care requires that for any revision of medical records, if a change is made, a line is made through the original so it can be read and then the correction is made and the change is dated and initialed. If an additional statement is entered into the medical record, it should be dated and initialed. Dr. Fromhagen did not date or initial the changes or additions to Patient K. B.'s medical record when he created the "augmented" record. Both expert witnesses testified that this fell below the standard of care for medical record-keeping. Dr. Von Thron, referring to the original record, opined that Dr. Fromhagen did not comply with the standard of care for essentially the same reasons as expressed by Dr. Nelson. He opined that the "augmented" record indicates that Dr. Fromhagen complied with the standard of care.
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 violating Subsections 458.331(1)(k), (m), and (t), Florida Statutes (1993), and imposing the following: A $1,000.00 fine for each violation, for a total of $3,000.00; and A one-year suspension followed by two years' probation; Ten hours of continuing medical education in ethics; An appropriate medical education course in medical record-keeping. DONE AND ENTERED this 5th day of March, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 5th day of March, 2001. COPIES FURNISHED: George Thomas Bowen, II, Esquire Law Offices of Donald Weidner, P.A. 11265 Alumni Way, Suite 201 Jacksonville, Florida 32246 John E. Terrel, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Tanya Williams, Executive Director Board of Medicine 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 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue is whether the Respondent's license as a practical nurse should be disciplined for the violations as set forth in the Administrative Complaint.
Findings Of Fact At all times relevant hereto, Respondent, Deborah Breski, held a license as a practical nurse in the State of Florida, license number 0584471. On August 26, 1990, Ms. Breski was employed at Sunrise Manor Nursing Home, Ft. Pierce, Florida, worked the morning shift on Hoffman A Wing, and was assigned to care for patient G. M. G. M.'s physician had ordered that 20 mg of Morphine be administered orally to G. M. no more often than every 4 hours, as needed for pain. Due to his throat cancer, G.M. had difficulty swallowing. On August 26, 1990, at approximately 2:00 p.m., Respondent signed-out 20 mg Morphine liquid for patient G. M. on this patient's Controlled Drug Record. Respondent subsequently initialed patient G. M.'s Medication Record and Profile to indicate her administration of Morphine liquid to this patient at approximately 2:00 p.m. Respondent charted the administration of 10 cc Morphine [the same as 20 mg] to patient G. M. at approximately 2:00 p.m. on August 26, 1990, on the Nurse's Medication Notes. She did not watch the patient ingest the drug, because it takes him a long time to swallow, and she had other patients who needed their medication. She did not, however, chart the effectiveness of the drug on the patient later in her shift. At approximately 3:15 p.m. on August 26, 1990, Respondent was relieved from her assignment on Hoffman Wing by LPN Michelle Delancy. Ms. Delancy prepared patient G. M.'s 6:00 p.m. dose of Morphine liquid. When she came to the patient she discovered a cup of liquid at the patient's bedside. Nurse Delancy asked G. M. if he had taken his pain medication earlier, and he respondend "no". Ms. Delancy then summoned Mr. Breski to patient G. M.'s room and questioned her as to the cup and its contents. Ms. Breski asked Ms. Delancy what Respondent should do with the unused medication, and Ms. Delancy indicated that it was Ms. Breski's Morphine and that she should take care of it. Ms. Breski then poured the unused Morphine back into patient G. M.'s original prescription bottle, in an effort to allow its reuse, and save the patient expense. The proper procedure for wasting medications such as Morphine is to dispose of the medication in the presence of another nurse, and to obtain that nurse's signature as verification that she had witnessed the wastage. Ms. Delancy did not witness Respondent's "disposal" of patient G. M.'s unused Morphine. The Department does not contend that Ms. Breski improperly took the Morphine herself or gave it to anyone else; it was poured back into the bottle. Ms. Breski did not document patient G. M.'s failure to consume his Morphine liquid, or her disposal of the medication by pouring it back into the prescription bottle; neither did she correct her previous charting. Patient G. M.'s records indicate that he received and ingested his scheduled 2:00 p.m. dose of Morphine. Ms. Breski's failure to observe the patient consume his medication created a potentially harmful situation. The patient G. M. could have taken his medication just prior to receiving his next scheduled dose, and would then have received a double dose of Morphine, which would have exceeded his physician's order. An expert for the Department opined that based upon a review of the evidence presented by Petitioner, Ms. Breski inaccurately and falsely recorded that she had administered medication to a patient when she had not actually done so; that Respondent did administer medication in a negligent manner, by not watching (and therefore ensuring) that the patient took the medication; and she made or filed a false report or record which she knew to be false, by documenting that she had administered the medication to the patient when she had not actually done so.
Recommendation Based upon the foregoing, it is recommended that the Board of Nursing enter a Final Order finding that Deborah Breski has violated Sections 464.018(1)(f) and (h), Florida Statutes, (1989) and Rule 210-10.005(1)(e)(1) and (2), Florida Administrative Code. Respondent should therefore be reprimanded by the Board, fined an administrative fine of $250.00, and placed on probation for a period of one year, subject to the requirement of taking an appropriate continuing education course which includes instruction on the administration, charting and proper means to waste medication. RECOMMENDED in Tallahassee, Leon County, Florida, this 4th day of October, 1991. WILLIAM R. DORSEY 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 4th day of October, 1991. COPIES FURNISHED: Tracey Scott Hartman Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Deborah Breski 803 Cory Campbell Road Fort Pierce, Florida 34982 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Judie Ritter, Executive Director Department of Professional Regulation Board of Nursing 111 Coastline Drive, East Room 50 Jacksonville, Florida 32202
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
