Findings Of Fact Respondent is a licensed medical doctor holding a license to practice medicine in the State of Florida issued by the Board of Medical Examiners, Department of Professional Regulation. The Petitioner is a governmental agency charged with enforcing the provisions of Chapter 458, Florida Statutes, and related rules which regulate the licensure standards and status pertaining to medical doctors in the State of Florida, and enforcing the practice standards for licensed medical doctors embodied in Chapter 458, Florida Statutes. Steven Jones has been employed as a detective in the Narcotics Department of the City of Miami Beach Police Department for approximately three and one-half years. He is a ten-year veteran of the law enforcement profession. In December 1982, an investigation was initiated to determine whether allegations of misprescribing scheduled controlled substances made by a confidential informant against Dr. Ramos, the Respondent, were true. On December 16, 1982, Detective Jones entered the medical offices of the Respondent and asked to see Dr. Ramos. The Respondent's receptionist asked him to fill out a patient information sheet. On this sheet or form he indicated his name was "Steven James." He was then taken to the Respondent's office and met the Respondent. He told the Respondent that he was a construction worker, had recently experienced turmoil in his domestic life, and also suffered from a lumbo-sacral sprain. The Respondent then asked him if he had back pain and, after asking him general questions about his health and whether he suffered from any major illnesses, took out his prescription pad and wrote prescriptions for three medications. Other than the general questions the doctor asked him about his health, no detailed medical history was taken from Mr. Jones and there was no physical examination performed by Dr. Ramos or anyone else, except that his weight and height were recorded. No blood pressure reading was taken. After Dr. Ramos asked Mr. Jones if he had a backache, to which Mr. Jones responded in the affirmative, Dr. Ramos stated that he would prescribe something for the backache and something for stress that caused the backache, and something to sleep at night. Although no blood pressure was taken, Dr. Ramos did ask the patient how his blood pressure was, and the patient answered that it was "fine." The doctor then prescribed 60 tablets of valium, 60 placidyl tablets and 40 darvocet tablets. The only medical history provided in writing to the doctor concerned the name, address and employment, medical insurance information and answers to questions on the form concerning allergies. Additionally, the patient noted that he had been taking "valium" or "valium." Upon receiving the prescriptions, Steven Jones paid Dr. Ramos $40 and left his office. Detective Jones again visited Dr. Ramos' office on February 2, 1983. Upon arriving at the office he was escorted into an examining room by the Respondent's assistant, who was also his wife. While Mr. Jones was seated in the examining room, an assistant placed a blood pressure tourniquet or cuff on the patient's arm, leaving it there four to five minutes, when she ultimately returned to the room and informed Steven Jones that the doctor was ready to see him. The blood pressure tourniquet or arm band was never actually inflated by the Respondent or assistant, and no blood pressure reading was ever taken on this visit. Upon going into the Respondent's office, Mr. Jones was asked by Dr. Ramos about how he was feeling and the "patient" requested stronger pain medication. The doctor refused to do this, saying in effect that the patient, Mr. Jones, would have to be admitted to a hospital before the Respondent could prescribe stronger pain medication. Again, on this office visit no social or medical history was taken, and no physical examination was conducted at all. The Respondent asked the patient if he wanted the same prescriptions he had obtained at his December visit, and the patient answered in the affirmative. There was no discussion between the patient and the Respondent or anyone else concerning the patient's condition or progress between the December visit and this February visit. There was no discussion concerning the need for future treatment. The Respondent simply, at that point, wrote the same prescriptions given at the December visit. The next visit by Detective Steven Jones, a/k/a Steven James, occurred on May 25, 1983, at the Respondent's medical offices. The same medical assistant recognized Jones immediately when he came into the office and asked him if he was there for the same reason, to which he replied in the affirmative. He was then escorted straight to Dr. Ramos' office, who asked him if he wanted the same medication again, to which he assented. There was no discussion at all about his condition and how it may have progressed since the February visit, nor was there any discussions about future prospects for treatment, what treatment if any, was being considered or what it was designed to accomplish. The Respondent simply wrote three prescriptions once again, for valium, placidyl and darvocet, Schedule IV controlled substances. Except for the first visit, there was never any discussion of back pain nor any discussion concerning symptoms of insomnia and nervousness in this patient. Onelia Padron testified for Respondent. She has known the Respondent for many years and has worked for him as a technician for approximately a year. She was working in his office in December 1982, as an x-ray technician and in the performance of blood tests, blood pressure readings and physical therapy. She remembered Detective Jones coming to the office in December 1982, and testified that she did not take a blood pressure reading at the December visit, but did so at the February visit. Her specific memory of taking the blood pressure reading in February was not clear, however. She remembers specifically that his blood pressure was normal at the February visit and testified that she was sure that Dr. Ramos wrote down the blood pressure of the patient in his medical chart for the February visit. The patient medical record of Detective Jones a/k/a James, however, does not reveal that a blood pressure reading was taken at the February visit. Although the witness claims to have taken a blood pressure reading on the patient on his February 1983 visit, the testimony of Detective Jones reveals that no blood pressure reading was taken; although the blood pressure cuff or tourniquet was applied to his arm, it was simply not used. This may account in part for Ms. Padron's mistaken memory of actually taking the blood pressure reading. Her memory may be less than accurate due to passage of time. The testimony of Detective Jones to the effect that no blood pressure reading was taken, when considered with the Respondent's own medical records which do not reveal a blood pressure reading being taken, renders the finding inescapable that no blood pressure reading was taken at the February, 1983 visit and that Ms. Padron, after the passage of over a year, has a less- than-specific, inaccurate memory about the occasion and thus her testimony with regard to this visit is not credible. Rita Ramos, the Respondent's wife, acts as the office receptionist who makes and maintains the medical records for the Respondent. She performs no medical duties, however, she is well acquainted with her husband's handwriting and, of course, her own handwriting, and established that the word "valium" on Petitioner's Exhibit 2 and the word "valium" on Petitioner's Exhibit 6 were not written by her or her husband. She maintains that she specifically remembers the patient (Detective Jones) coming to visit Dr. Ramos on December 16, 1982, and she specifically remembers the doctor conducting a full physical examination and writing at least four lines of notes in the patient's record. She did not take a blood pressure on this patient in either December or February, however, and could not give an adequate explanation of how she could perform all her administrative record-keeping and maintenance duties and still have time to continually watch through the open door of her husband's office to see the physicals performed on approximately 20 patients a day, including Jones, and especially then to be able to remember the details of that one specific patient's visit in December 1982, over a year prior to the hearing. Although this witness supposedly remembered the doctor "always" conducting physical examinations on the first visit by a patient, and specifically conducting a head, eyes and ears examination on the first visit of Detective Jones, given the inherent interest of the patient in this case, the fact that her memory must be suspect regarding a specific patient's visit on a specific date more than a year prior to the hearing, and her own testimony that no irregularity or memorable occurrence happened during the visit of that patient to stimulate her recall, her memory of that event must be deemed less than accurate and therefore her testimony concerning the physical examination cannot be found credible by this Hearing Officer. Dr. Ramos testified on his own behalf. He stated that his standard practice is to interview and examine each patient and that he was especially suspicious of the subject patient who came in wearing earrings and boots. He interpreted his abbreviated notes on the patient's chart to reveal that the patient was 5'8" tall and weighed 145 pounds, had a blood pressure of 120 over 80 and a pulse of 80, and a normal sinus rhythm with no heart murmur and no abnormal respiratory signs. The doctor additionally interpreted his handwritten notes containing his own abbreviations, to reveal that the patient's eyes were normal, neck supple, with normal ears, nose, throat and a fair complexion. Although the patient asked for a stronger medication on at least one of the visits, including quaaludes, the doctor refused, informing the patient that he could not legally prescribe such for him in Florida. The doctor also testified that he remembered that on the second visit in February 1983, Ms. Padron took the blood pressure of the patient. He contends that he did not record the blood pressure reading because it was the same as the first time, that is, the December 1982 visit. No blood pressure was taken or recorded at the December 1982 visit, however, and none is revealed in the doctor's record for that visit. Although the doctor testified that on the February visit he believed that the patient might be trying to trick him and might be an undercover law enforcement officer, he still prescribed the same controlled substance prescribed earlier, with no additional physical examination made nor physical findings recorded in the patient records. He repeated the same instructions as to use of those drugs and the reasons for taking those drugs, but did not record any physical findings related to that visit. By his own admission, he did not ask the patient what had occurred in his medical history between December and February and did not ask questions concerning the success of his previously prescribed course of treatment. If indeed, the Respondent believed that the patient could be an undercover law enforcement officer and thus attempting to trick the doctor into misprescribing drugs for him, one might think that the doctor would take pains to make a thorough physical examination and to thoroughly record his findings and conclusions in the medical records he maintained, instead of failing to document his physical findings and conclusions and continuing to prescribe those drugs over a period of months. Thus, the testimony of Dr. Ramos is not supportive of a finding that a thorough physical examination, including the taking of blood pressure readings at each patient visit and, (in view of the low back pain complaint) straight leg raise tests, tests for impairment of sensation in extremities and other parameter checks, was actually conducted on the patient. Dr. John Handwerker, M.D., testified as an expert witness for the Petitioner. He has served as first chairman of the Department of Family Practice at the University of Florida Family and Community Medicine programs. He is Chairman of the Family Practice Department of Mercy Hospital in Miami, and is assistant professor of pharmacology at the University of Miami. He is knowledgeable regarding generally prevailing and accepted standards of family practice in Dade County and was accepted, without challenge, as an expert in the field of family practice. The drug Darvocet and Darvocet N-100 is a Schedule IV controlled substance, according to the schedule established in Chapter 893, Florida Statutes. Darvocet is characterized by some habituating influence, together with some problems with withdrawal. Its use is contraindicated with tranquilizers, such as valium, which was also prescribed in conjunction with it by Respondent for the patient involved herein. Valium, which is known generically as diazepam, is also a Schedule IV controlled substance and is a sedative or anti-anxiety drug with a wide variety of potentially adverse drug interactions, including darvocet. It can be mildly addictive, has a depressant effect on the central nervous system and is also a muscle relaxant. Placidyl is a short-term drug used in sleep disorders. It is only indicated for use for a maximum of seven days. It is classed as an oral hypnotic, and is a Schedule IV controlled substance pursuant to Chapter 893, Florida Statutes. Prior to prescribing any of these drugs, a physician should take a full history from a patient, and perform a thorough physical examination. The history should include the patient's chief complaint with questions from the physician to the patient involving areas of past problems with the nervous system, ears, eyes, lungs, chest, respiratory system, GI tract, and urinary tract. The physical examination should involve all body systems, including blood pressure, examination of the head, neck and chest and back regions. Further, if the patient requests these or other drugs specifically, a check should then be made for "track marks" and other evidence of prior drug abuse or usage. If the patient complains of low back pain, there should be a physical examination specifically involving the low back area before prescribing the scheduled controlled substances at issue. The past history is important to determine the duration of the problem, any previous medical treatment, examinations or tests by other physicians regarding the lumbosacral or low back area. A physical examination should be performed designed to elicit indications of neurological involvement, including straight leg raise tests, impairment of sensation tests in the extremities and other neurological inquiries. Such a full history and a physical examination is necessary prior to initiating a course of treatment involving treatment of chronic pain due to the existence of a wide assortment of other treatment modalities which might treat the root of the problem, rather than merely the pain symptoms. Dr. Handwerker, upon being questioned concerning the December 1982 visit of Detective Jones to the Respondent's office, posing as a 29-year-old construction worker complaining of lower back pain and insomnia, established that if a doctor performed no physical examination of such a patient, or only a cursory one, and took a history which in essence elicited only the complaint of injury (aside from the non-medical personal background information) that it would amount to inappropriate prescribing of the subject drugs if the patient was given these drugs in the manner prescribed to Detective Jones. The Respondent simply made insufficient findings upon which to base the decision to prescribe those drugs. Such prescribing without an adequate physical examination or the obtaining of detailed patient medical history would constitute a failure to conform to the level of care, skill and treatment recognized by reasonably prudent similar physicians under these conditions and circumstances. The continued prescribing of these drugs at the February and May visits of this patient, without any discussion or consideration of the effect the previous course of treatment had had on the patient, other than a simple question by the Respondent concerning how the patient was feeling, also constitutes inappropriate prescribing of scheduled controlled substances and demonstrates a failure to conform to the generally accepted and prevailing standards of medical practice in the Dade County community. It was similarly established that the medical records failed to justify the course of treatment afforded this patient. Especially regarding the lack of a physical examination at each visit, and the failure to elicit any further medical history on the latter two visits. Even if a full physical examination and history was conducted on the first visit in December 1982, which was not the case, there would still be required an interim update and recording of physical findings related to the patient's experience since the December visit. Notes should have been made in the patient records regarding how the medications were affecting the patient and his pain problem, including notes reflecting that a physical examination had been performed, involving all vital signs, which was not the case with this patient. Not only does the generally accepted and prevailing standard of medical practice in Dade County require that an initial, thorough physical examination including the blood pressure and pulse and the eliciting of a detailed medical history be performed, as well as update physical examinations at later visits to check the progress of the patient under the treatment program; the failure to note the findings in the patient records constitutes a failure to conform to generally accepted and prevailing standards of medical practice for the Dade County community. Dr. Alfred March testified as an expert witness for Respondent, but agreed that the same detailed medical history and examination described by Dr. Handwerker is required before the practitioner should prescribe scheduled controlled substances in the same manner as done by the Respondent. Dr. March was unable to ascertain from simply reviewing the medical records of the Respondent, the reason or justification for the prescribing of any of the drugs on the three dates in question, and established that the medical records of the doctor should always justify the course of treatment for a patient. Indeed, Dr. March established that if a patient came in complaining of a backache, then such would be inappropriate prescribing without the performance of x-rays of the affected area and a full neurological examination, neither of which was performed by the Respondent in this case. Dr. Ramos has never been subjected to disciplinary proceedings in the past, and his past professional record reveals that his medical practice has been characterized by sincere concern for his patients and the highest respect of his colleagues. The subject drugs involved are Schedule IV controlled substances, which are of the class of drugs characterized by the least serious ramifications for patients, if misused. It is to the doctor's credit that when the undercover detective, Mr. Jones, attempted to persuade him to prescribe more powerful medication such as quaaludes, the doctor vigorously protested such a course of treatment and refused to do so, citing his belief that indeed it was illegal to do so in Florida.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefor
Findings Of Fact At all times pertinent to the issues herein, the Board of Medicine was the state agency responsible for the licensing of physicians and the regulation of the practice of medicine in this state. Respondent was licensed as a physician in Florida and holds license number ME 0017915. He practices medicine, specializing in psychiatry, in Clearwater, Florida. He is board certified in that specialty. On September 7, 1987, Patient #1, a 55 year old married female, whose husband had recently separated from many years in the armed service of the United States, came to see Respondent at his office, complaining of severe headaches, loneliness, depression, and a lowering of self esteem. She had been referred to him by physicians at the U.S. Coast Guard Station Dispensary. Respondent examined Patient #1 and found her to be of limited intelligence, considerably overweight, anxious, depressed and confused. She was ashamed of her new status in life as a result of her husband's inability to find work and was experiencing difficulties with him and her children. She was suffering from severe insomnia. Respondent's examination of Patient #1 was limited. He was satisfied with the medical work-up which had been conducted by his colleagues at the Dispensary. Because he was consulting psychiatrist for that facility, he knew all the physicians there and was familiar with the caliber of their work. Based on the medical information furnished him from the Dispensary and his own examination, he diagnosed Patient #1 as suffering a major depression and a psychogenic pain disorder manifested by headaches and insomnia. He developed a treatment plan for the patient which included a wide variety of psychotherapy interventions, the first of which was to effect relief of the symptoms. This included clarification of relationships, interpretation of dreams and fantasies, and allowed for catharsis. When Respondent found out that empathy and intervention alone would not work on this patient, and he had established a relationship with her, he started psychotropic medications including Elavil, the drug of choice for this type of condition in 1988. Elavil is a "superb" antidepressant. While the antidepressant factor is "cranking in", the medication also works as a sedative. For this reason, it is normally prescribed for administration at bedtime. Patient #1 responded to this course of treatment and she and the Respondent established a good and friendly working relationship, which he noted in his April 4, 1988 letter and treatment report to the Coast Guard and to CHAMPUS. In that treatment report, however, Respondent noted Patient #1 had a suicidal ideation. The term "suicidal ideation" does not import that the patient was, at that time, seriously considering suicide. Her mentioning suicide was but an overcompensation - more an alerting statement of depression and sadness with emptiness and angst. She never indicated to Respondent any thought of or plan to commit suicide. Patient #1 thrived for many months in Respondent's therapy. She complained often of her impoverished condition, however, and as a result, he wrote prescriptions for her in such a way that they could be filled at the Coast Guard dispensary without charge. This required writing prescriptions for more tablets of a drug at a lower strength which was stocked by the Dispensary. It was a surprise to him to learn, later on, that she was filling her prescriptions at Eckerds. Throughout the period he treated her, Dr. Fireman prescribed psychotropic drugs for Patient #1, which consisted primarily of amitriptyline, (Elavil), and butalbital, (Fiorinal), in varying strengths, and, at times, in compounds with other substances. As was noted previously, Elavil is an antidepressant with sedative effects. The recommended daily dose for a patient in an outpatient setting is indicated as 150 mg by the Physicians' Desk Reference, (PDR), which also recommends suicidal patients not be allowed unrestricted access to it because of the danger of intentional overdose. Other qualified psychiatrists who testified, including Dr. Spreyhe and Dr. El Yousef, indicate up to 300 or even 350 mg/day may be appropriate. As Dr. Spreyhe noted, it is not so much the daily dose on any given day which is pertinent but the aliquot over an extended period. In that regard, he notes, Dr. Fireman's prescriptions for both Elavil and Fiorinal were within recommended maximums and, therefore, within the appropriate standard of care. Fiorinal is a barbiturate anti-anxiety agent and muscle relaxant with habit forming potential. Fiorinal #3 contains codeine, a legend drug and narcotic. Generally, according to Dr. El Yousef, it should be dispensed for use at a rate of between 8 to 12 tablets per day over the short term, but over a 9 month period he would prescribe between 4 and 9 tablets per day. Pharmacy records indicate that over the period he treated patient #1, Respondent gave her numerous prescriptions for both Elavil and Fiorinal which, at first glance, appear to be excessive. For example, the records reflect that on December 29, 1987, Respondent wrote prescription number 390073 for 100 Elavil 25 mg tablets. Though the prescription clearly indicates no refills were authorized, and the back of the prescription form, where refills are noted by the pharmacist, fails to reflect any refills were authorized by the physician, the pharmacy records indicate two additional dispensings by the pharmacy for 100 tablets each on January 11 and April 20, 1988. There is no evidence to indicate how these additional fillings came about; who arranged for them, or who received them. On February 22, 1988, Respondent wrote prescription number 394289 to the patient for 12 Fiorinal #3 tablets. Again the prescription form authorizes no refills and the back of the prescription form indicates but one coordinated refill but the pharmacy records show the prescription was filled twice - once on April 6, 1988 and once on April 23, 1998. Only the latter is annotated. On March 3, 1988, Respondent wrote prescription number 397144 to the patient for 60 Fiorinal tablets. While the doctor's refill note reflects none were allowed, the computer printout sticker for the bottle reflects 2 refills were authorized. The back of the prescription form shows no refills annotated thereon as required, but the pharmacy's computer listing of all prescriptions indicates the prescription was refilled on May 28 and again on June 3, 1988. No further explanation is given. Prescription number 396378, written to the patient by Respondent on March 14, 1988 for 50 Fiorinal tablets, reflects no refills authorized by the physician nor does the reverse of the form bear any refill annotations. Nonetheless, the pharmacy records as shown on the computer printout indicates a refill on March 27 and April 6, 1988 with no explanation therefore. Before the last refill, however, Respondent wrote prescription number 397091 to the patient on March 29, 1988, for 21 Fiorinal #2, later approved for #3's. He also, on April 4, 1988, wrote prescription number 398853 for 35 Fiorinal tablets. Respondent claims he would not authorize a refill of a prior prescription for the same medication for which he is writing a new prescription, and, since neither of the refills of the earlier prescription properly reflect any physician authorization, it is so found. On May 2, 1988, Respondent wrote prescription 399717 for 50 Fiorinal tablets, and prescription 399718 for 100 Elavil 25 mg tablets. Both reflect Respondent's instruction that no refill be given, and neither form bears an annotation for authorized phone refills. Yet, the pharmacy's computer printout indicates that the prescription for Elavil was written on May 31, 1988 even though the bottle sticker shows it was filled on May 3, 1988. On August 1, 1988, Respondent wrote prescription 405572 for 100 Fiorinal and 475573 for 100 Elavil 100 mg tablets. Both were filled the next day but neither form bears any annotation of authorized refill, consistent with the physician's instructions. On August 16, 1988, Respondent prescribed another 100 Fiorinal by Prescription 406536. It was not refilled. On August 29, 1988, Respondent wrote prescription 407201 for 150 Elavil 50 mg tablets to patient #1, and number 407202 for 100 Fiorinal tablets. Both prescription forms clearly reflected no refills, but the back of the forms reflect refills were authorized. The Elavil prescription was refilled on September 10, 1988 by pharmacist Ivan Funkhouser who contends he refilled on the basis either of a call to or from the doctor's office. He cannot recall which. He also, at the same time, refilled the Fiorinal prescription under the same conditions. The Elavil prescription was filled again, this time for 225 tablets, on September 30, 1988, by pharmacist Robert Wivagg who also indicated phone refills made only on the basis of a call to or from the physician's office. In this case, however, he believes that because of the amounts involved, he would have spoken to the physician himself before filling the prescription. He cannot be sure of this, however, and Respondent denies having ever prescribed 225 Elavil tablets, regardless of strength, at one time. Mr. Lewis, the pharmacy expert, indicates that proper pharmacy practice would have allowed the pharmacist to issue fewer tablets than on the prescription but not more without express approval of the physician. The Fiorinal prescription, refilled on September 30, 1988, this time for 150 tablets, is not reflected on the prescription form though it is on the computer printout. Respondent denies that he ever called in prescriptions for Patient #1 because he never had to. She came to his office frequently enough that he was able to provide her with a new prescription for whatever medication she needed. Indeed, his medical office billing records reflect that in June, 1988 he saw her on June 6, 13, 20, and 27; in July, 1988 on July 5, 12, 19, and 26; and in August, 1988, on August 2, 9, 16, and 30. It would appear, therefore, that the refills of prescriptions reflected on the pharmacy computer printout either are in error or were arranged for under some unexplained process not involving Respondent. There appears to be no reason for him having had to authorize refills since he saw the patient so frequently, notwithstanding his comments to Ms. Sutton, during the investigation, that 90 percent of the refill calls are authorized by him personally, and only 10 percent through his secretary. There was no showing that the authorization comment Ms. Sutton recalls was related to this particular patient. Further, according to Ms. Maguire, Respondent's secretary, Respondent frequently refuses to grant refills, and, to her knowledge, he never gives refills to psychiatric patients. Since most, if not all Respondent's patients are psychiatric patients, this does not make sense. Respondent does not deny writing the two prescriptions on August 29, 1988. At that particular time patient #1 was planning a trip to New York to make peace with her dying mother. As a result, and since her headaches had gotten worse, as had her depression, he decided to increase her dosage of Elavil. This was a medical decision which is not in issue here. He admits that Elavil is a drug which is often used to commit suicide and that prescribed at even its lowest strength, a full prescription can be lethal. This became, therefore, an assessment problem wherein Respondent, the physician, had to evaluate the risk of the patient's depression against the benefits to be gained by the use of the drug. Respondent gave patient #1 enough Elavil to hold her through her visit up north. He had previously given her sixty 50 mg tablets to be taken 6 per day for a 300 mg dose at bedtime. He now told her not to use the 50 mg tablets any more and to destroy them. He believed she did. He then gave her a new prescription for one hundred and twenty 25 mg tablets for her trip. He unequivocally states that he never prescribes more than 300 mg/day of Elavil. He admits, however, that while she was on that dosage, he neither hospitalized her nor had blood work done on her. Respondent feels his original treatment plan and diagnosis were sufficient and his records pertaining to those factors were adequate. He uses checkoff forms because he believes they are the most open way of showing how he sees his patient and what he is doing for her. This same conclusion was reached by Dr. Spreyhe, another Board certified psychiatrist who is Clinical Professor of psychiatry at the University of South Florida Medical School, who has served as an expert witness for the Department in the past, and who continues to serve as a contract consultant for it and as a member of the Medical Advisory Committee of the Department. Examination of Respondent's medical records pertaining to Patient #1 indicates that the medical history and treatment plan are in the form of check sheets on which the physician makes no more than minimally worded entries. The Department's witness, Dr. Greener, an expert in the completeness of medical records, is of the opinion that Respondent's records should have reflected an initial detailed assessment of the patient's condition, including the reasons for her referral to him, a complete medical history, and a subsequent detailed mental status examination. This should be followed by a formulation of her problems and a treatment program. After the initial evaluation, according to Dr. Greener, the physician should make regular progress notes as to treatments, communications with others, phone calls received, prescriptions issued, and matters of that nature. This is done to memorialize the particulars for the patient and to keep a tally of which and how much of any drug is given to the patient. This would show over or under use as a possible flag as to how well the patient follows instructions or if the patient develops a use addiction problem. Based on Dr. Greener's review of Respondent's records for patient #1 and the prescription records relevant to her, he concluded those records were "totally inadequate." This conclusion is based on his opinion that the initial evaluation is cursory and without detail and there are few progress notes in the records. Those which are there are inadequate in detail and full of conclusions without the required supporting information such as drug side-effects, the patient's ability to follow instructions, follow-up, changes in dosages, and the like. He complains that Respondent's records do not really outline a plan of treatment designed specifically for that patient. For example, the forms used by Respondent are merely check-off forms even though, during the period, the patient was receiving continuing analgesic medications. From Respondent's records, it was impossible to determine how the patient was doing on the medications prescribed or whether additional medical evaluation was required. It is important to put this information in patient records to memorialize what is done and not just to keep the information in the treating physician's memory. Respondent denies that his initial evaluation and treatment plan, prepared by the use of form check sheets, is below standard. Dr. Spreyhe concluded the use of such check sheets is not inappropriate for the initial work-up of a patient and he opined that Respondent's forms, and the information thereon provide sufficient information for an independent understanding of the patient's situation and are within an appropriate standard of care. It is so found. However, the medical progress notes which make up the bulk of the remaining medical records are not so complete and, in Dr. Spreyhe's opinion are insufficient. Respondent concurs and admits this. It is so found. As to Respondent's prescribing practices, Dr. Greener is far more conservative than Respondent in prescribing Elavil. He starts with a low dose and gradually works up to a therapeutic level dosage depending upon the patient. He would start an average patient out at 25 mg/day and work up to a maintenance dose of 150 mg/day. Elavil is a dangerous drug and the doctor must closely monitor the patient for possible side effects and the direct effect it is having on the patient. It should never be ordered "prn", (as needed) when that designation relates to the amount to be taken. Based on Respondent's records for this patient, it would appear to Dr. Greener that the medication was being used improperly. There appears to have been no monitoring of the amount of the drug the patient was getting and it would appear that the patient was given the prerogative as to dose, which is not a good thing to do. In his opinion, a dose at 300 mg/day of Elavil is very and unnaturally high and he would not use so high a dose. He would do other tests first to see why the medication was not working at the lower dosage. As was seen before, however, other physicians of equal expertise disagree. Fiorinal is habit forming and, according to Dr. Greener, should be used only over the short term. If needed for a longer period, the patient should be reviewed to see why. The doctor must keep in mind the addictive properties of the drug. Here, Dr. Greener is of the opinion that Respondent prescribed excessive amounts of Fiorinal for patient #1. From January 27, 1988 through March 2, 1988, a period of 34 or 35 days, Respondent prescribed 302 tablets and Dr. Greener would be concerned that the patient was addicted. On March 21, 1988 Respondent prescribed another 50 tablets, and on March 27,1988, he prescribed 50 more followed by another 60 somewhat later and more after that. All of these were being prescribed for a patient whose records reflect she was doing "OK", and was "nicely stabilized". To Dr. Greener, this is just too much, especially for a patient who is obviously addicted and who appears to be taking the medication only to prevent withdrawal symptoms. By his prescription regimen, a patient would get no more than 10 tablets a day for no more than 4 to 5 days, and he would prescribe this drug for 9 months, as here, only with support for it in the patient records, including the opinions of other specialists to whom the patient would have been referred. While it is obvious Dr. Greener is more conservative in his approach to medication than is Respondent, the evidence does not clearly show Respondent's approach fell below standards. Dr. Spreyhe is of the opinion that the levels of Elavil and Fiorinal prescribed by Respondent for this patient were appropriate in both dosage and amounts. He has patients of his own who take such doses and he is not swayed by the PDR recommendations for dosage which, he believes, is too conservative. As for the Fiorinal, he would prescribe no more than 8 per day because there is some information that a patient may develop a tolerance for the substance. In any case, the drug is appropriate for the treatment of psychogenic headaches as were suffered by Respondent's patient here. Both W.L.P. and M.J.S. have been patients of Respondent. Both found him to be concerned and available. When patient #1 died, Ms. Sherman was in a therapy group with her. She did not appear to be suicidal and was looking forward to her proposed trip to New York. Patient #1 died on October 8, 1988. The report of the Hillsborough County Medical Examiner reflected her death as suicide from the combined effects of amitriptyline, (Elavil), butalbital, (Fiorinal), and salicylate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued herein, finding Respondent not guilty of all allegations except those relating to his failure to keep adequate medical records regarding Patient #1 as alleged in Count One, of which he is shown to be guilty, and imposing an administrative reprimand and a requirement for continuing medical education in the area of proper record keeping. RECOMMENDED this 31st day of August, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-5048 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. 3. - 6. Accepted and incorporated herein. 7. Accepted as a restatement of witness testimony but not as a Finding of Fact. 8. Accepted as a restatement of witness testimony but not as a Finding of Fact. 9. & 10. Accepted that the medications were dispensed based on prescriptions written under the patient's name. 11. & 12. Accepted and incorporated herein. 13. & 14. Accepted as a restatement of witness testimony. - 18. Accepted and incorporated herein. Rejected as not a necessary conclusion to be drawn. Accepted. - 23. Accepted as restatements of witness testimony. Accepted and incorporated herein. - 26. Accepted and incorporated herein as pertaining to the dosage level of Elavil used and the balance accepted as a restatement of witness testimony. Accepted and incorporated herein. Accepted as a restatement of witness testimony. Accepted and incorporated herein. Accepted. & 32. Rejected as Findings of Fact, and found to be Conclusions of Law. FOR THE RESPONDENT: Accepted and incorporated herein. - 4. Accepted and incorporated herein. - 7. Accepted and incorporated herein. Accepted and incorporated herein. - 12. Accepted and incorporated herein. 13. & 14. Accepted. 15. & 16. Accepted and incorporated herein. 17. & 18. Accepted. 19. & 20. Accepted and incorporated herein. 21. Accepted. 22. This Proposed Finding of Fact is, in reality, a restatement of the evidence presented, in several subparagraphs, some of which are identified by letter and some of which are not. It is, however, accepted as an accurate restatement of the evidence admitted at hearing on this point, except where it becomes argument. 23. & 24. Accepted and incorporated herein. 25. First four sentences accepted and incorporated herein. Balance considered only as argument in support of the position taken. 26. Accepted and incorporated herein. 27. Accepted. 28. Rejected as a Conclusion of Law and not a Finding of Fact. 29. - 31. Accepted as basic findings. This does not go to their adequacy, however. 32. & 33. Rejected as contra to the weight of the evidence. & 35. Accepted as the substance of the witness' testimony. Accepted and incorporated herein. Accepted. Accepted. Rejected as a Conclusion of Law. COPIES FURNISHED: Steven Rothenberg, Esquire Agency for Health Care Administration 9325 Bay Plaza Boulevard Suite 210 Tampa, Florida 33619 Bruce D. Lamb, Esquire Christopher J. Schulte, Esquire Shear, Newman, Hahn & Rosenkranz, P.A. Post Office Box 2378 Tampa, Florida 33601 Harold D. Lewis, Esquire Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Dr. Marm Harris Executive Director Agency for Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this case are whether the allegations of the Amended Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Respondent is a licensed physician in the State of Florida, holding license number ME 81249. At all times material to this case, the Respondent was board-certified in family medicine. The Respondent held no board certification at the time of the administrative hearing, and, according to his response to the Petitioner's First Request for Admissions, the family medicine certification expired in July 2007. On February 8, 2006, the Respondent prescribed hydrocodone (10/325, generic Norco, 10mg.) to Patient M.R. through an internet service called ERMeds.com. On June 26, 2006, the Respondent prescribed hydrocodone (Hydro/APAP 10/325, generic Norco, 10/325) to Patient M.R. through the internet service called ERMeds.com. Hydrocodone is a Schedule II controlled substance listed in Chapter 893, Florida Statutes. Hydrocodone/APAP is hydrocodone combined with acetaminophen, and the combined drug is a Schedule III controlled substance listed in Chapter 893, Florida Statutes. Both hydrocodone and hydrocodone/APAP have high potential for abuse and addiction. The prescriptions issued to Patient M.R. contained the Respondent's identification including address and DEA number on the prescription form, as well as the Respondent's electronic facsimile signature. The Respondent had no contact with Patient M.R. either before or after the prescription was issued to Patient M.R. The Respondent conducted no health evaluation of Patient M.R. The Respondent did not obtain or review any medical information related to Patient M.R. The Respondent testified during deposition that a physician's assistant for whom the Respondent was the supervising physician was responsible for gathering and reviewing medical information from the patient. According to the Respondent's response to the Petitioner's First Request for Admissions, the physician's assistant obtained patient history, including current medications and complaints, and the "information was available to Respondent at the time the prescriptions were authorized." According to the Respondent's response to the Petitioner's First Request for Admissions, a completed medical questionnaire was available for the Respondent's review. There is no evidence that the Respondent reviewed any information or questionnaire regarding the patient's medical history or complaint either before or at the time the prescriptions were authorized. The Respondent did not know and never met the physician's assistant and was unable to recall the last name of the physician's assistant. There is no evidence that the Respondent had any discussion with any physician's assistant related to Patient M.R. either before or at the time the prescriptions were authorized. At the hearing, the Petitioner presented the testimony of Bernd Wollschlaeger, M.D., a Florida-licensed physician holding board certification in family practice. Dr. Wollschlaeger testified that a physician must evaluate a patient, take a patient's medical history, review any available medical records, and document the findings and diagnosis in a contemporaneous record prior to issuing a prescription for hydrocodone to a patient. Based upon the Respondent's deposition testimony and the responses to the Petitioner's First Request for Admissions, it is clear that the Respondent failed to evaluate Patient M.R. in any respect prior to issuing the prescriptions for hydrocodone to the patient. The Respondent reviewed no medical history or records related to Patient M.R. The Respondent failed to diagnose any medical condition that would support prescribing hydrocodone to Patient M.R. The Respondent failed to document any medical information related to Patient M.R. in any written record.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order finding Gerard Romain, M.D., in violation of Subsections 458.331(1)(m), 458.331(1)(q), and 458.331(1)(t), Florida Statutes (2005), and imposing a penalty as follows: a reprimand; a three-year period of probation, the first year of which shall include a prohibition on issuing prescriptions for Schedule II and III controlled substances; an administrative fine of $20,000.00; and such additional continuing education and community service requirements as the Department of Health determines appropriate. DONE AND ENTERED this 23rd day of September, 2008, in Tallahassee, Leon County, Florida. S 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 2008. COPIES FURNISHED: Elana J. Jones, Esquire Ephraim D. Livingston, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Dale R. Sisco, Esquire Stacy Estes, Esquire Sisco-Law Post Office Box 3382 Tampa, Florida 33601-3382 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Larry McPherson, Executive Director Board of Medicine 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Dr. Julius A. Okuboye, was a medical doctor licensed by and in the State of Florida. In the first of six cases upon which Petitioner bases its case, the patient was receiving medical treatment for a fracture of the right femur, (thigh bone), at Gateway Community Hospital in St. Petersburg, Florida during the period November 21, 1982 and January 13, 1983. Petitioner contends Respondent failed to properly perform the surgical procedure; failed to properly consider alternative courses of treatment; and failed to keep adequate medical records justifying the course of treatment taken. Respondent reduced the bone fracture here by using a metal plate running lengthwise along the bone in an attempt to brace the fracture by securing it to the bone with, initially, screws. The plate used by the Respondent was too short for the procedure in that it did not extend beyond the upper limits of the fracture by that distance considered by some to be appropriate. Petitioner's first expert felt the use of the plate which was too short and the screws used to affix it, which were too short, was improper practice. In his opinion, the procedure followed by the Respondent herein required the patient to undergo three separate operations rather than one, which unnecessarily exposed this elderly patient to infection and the risk of anesthesia on three separate occasions. Petitioner's other expert believes that because the Respondent used a plate which was too short for the fracture involved, it was necessary for him to go back in and fix the plate with Parham bands considered by many in the field to be an old-fashioned practice. These bands, when used, tend to devitalize the tissue. He believes that once having used them, however, Respondent should have used more screws to affix the plate and the bands. In addition, the plate did not fix the smaller bone fragments at the bottom of the fracture. Both experts state Respondent should have considered reducing the fracture by the use of traction and bed rest as an alternative to surgery. On the other hand, Respondent's experts disagreed with Petitioner's experts. One, Dr. Weiss, indicated that Respondent had two choices: (1) a prolonged traction and immobilization which, itself, poses a great risk for an elderly patient, or (2) the surgical fixation which was chosen. Here, the reduction was good but the plate was too short. Dr. Weiss contends, as was urged by Respondent, that this was beyond his control and while it would have been better to use a longer plate, the Respondent used the correct procedure and the fact that a second and third operation was necessary, was beyond his control. His choice to do them was appropriate. The other expert, Dr. Bodden, pointed out that even though the smaller plate was used, there is no assurance a larger plate would have precluded the second and third operations. He believes that in light of all of the medical problems presented in this case and since the ideal plate was not available, Respondent's choice was prudent. The length of the plate was improper but in the opinion of Dr. Bodden, the patient's bone structure contributed to the breakage after the plate was installed. Further, the use of Parham bands was not inappropriate. They have been used for many years and are still widely accepted and used. In fact, he uses them himself. Prior to the surgery, Respondent contacted the operating room charge nurse to determine if the proper plates were available, and was assured by her that a full set of plates was available for the surgery. It was only after entering the operating arena, opening the incision into the patient's leg, and thereafter opening the sterilized and sealed package containing the plates that it was determined the proper plate was not present. Absent a showing to the contrary, it is found it would have been improper to open the plate package in advance of surgery to check since such a procedure would have destroyed the sterile nature of the package. In light of the above, Respondent's actions were appropriate. As to the issue of the adequacy of Respondent's medical records on other patients, an analysis of the records showed that no discharge summary was prepared by the Respondent nor were progress notes kept by him on December 22, 23, 25, and thereafter for several weeks on an irregular basis. It may be that Respondent was not the primary physician and only the consultant, but the records fail to show who was the responsible physician and who was ultimately responsible for the patient. A consultant should always reflect in the patient records who he is and in what capacity he has seen the patient as well as his area of expertise and the actions he has taken. Here, the Respondent's failure to do so, notwithstanding some expert evidence to the contrary, renders the records kept by him inadequate. In the case of the patient who was treated by the Respondent as a consultant on a fracture of the left hip at Gateway Community Hospital between October 27, and November 10, 1983, Petitioner's experts have no quarrel with the orthopedic treatment rendered the patient by Respondent. However, Respondent failed to make proper entries in the patient's medical records and the notes therein were made by an internist. Respondent saw the patient on only four of the nine days the patient was hospitalized and in the opinion of the expert, proper practice requires a doctor, or his substitute in the absence of the doctor, to see the patient each day. It may be that this practice, which is generally accepted as appropriate throughout the medical community, is somewhat less significant in the field of orthopedic surgery. Respondent's expert indicated he did not feel constrained to see his patients each day subsequent to surgery so long as he was kept aware of the patients' conditions. While he makes progress notes, he does not dictate discharge summaries or any of the other records since these are prepared by residents based on the notes he has put in the file. The medical records for this patient show no progress notes by the Respondent on November 1, 3, 4, and 5, 1983, during which time the patient was in the hospital under the Respondent's care. In one expert's opinion, the missing of three consecutive day's progress notes renders the records below standard. Respondent indicates he saw the patient frequently right after the surgery, but once he was satisfied that her orthopedic problems were progressing satisfactorily, did not see her during the time she was being treated for medical problems unrelated to the orthopedic surgery by an internist. He did write medical notes on the first five postoperative days at the conclusion of which his postoperative care for the orthopedic surgery was completed. Were it not for her unrelated medical problems, the patient would have been released and he did see her once, (Nov.2) prior to her discharge after her medical problem had been resolved. On the basis of all the testimony, it is found that in this case, Dr. Okuboye did not fail to keep proper medical records. Respondent also saw a patient for a fracture of the left lateral malleolus, (the protuberance on both sides of the ankle joint), and is alleged to have failed to timely perform an examination of the patient; failed to have timely provided treatment; and failed to have performed a complete examination. In this case, Petitioner's expert pointed out that the chart kept by the Respondent failed to show any reference to a knee injury which was disclosed on post-treatment X-rays evaluated by him. Respondent is also alleged to have failed to have cleaned and irrigated the wound which was a part of the injury, and that he administered only an intramuscular injection of antibiotics. In the opinion of the witness, it makes no difference if there was an infection or not. It is, in his opinion; a bad practice to not debride and clean the wound. Further, he was concerned that the patient records kept by the Respondent did not reflect whether the Respondent responded to the emergency room at the time he prescribed the treatment or not. From the review of the records, he could not tell. Review of the case records by Respondent's expert showed there was no open fracture which required debridement or specific cleaning. The wound was a small abrasion. As a general rule, an injury should be more than 1/2 inch in size or have some bone showing in order to require debridement, (removal of foreign material and dead or damaged tissue). If those conditions are present, proper procedure is to clean the wound and to provide antibiotics, which the Respondent did, and the treatment recommended by him met appropriate standards. This is the better point of view. As to the records kept by the Respondent, a note regarding the action taken here was dictated by Respondent two days after the patient was discharged. The patient records show a postoperative X-ray was taken by Respondent but there is no indication in the record showing that surgery was done. The patient was admitted through the emergency room and was sent to the floor even before the Respondent was contacted. As a result, Respondent did not see the patient in the emergency room. The ER notes prepared by someone else refer to an abrasion and an approximately 1/4 inch tear in the skin. The injury was cleaned in the ER and the patient was sent to the floor after which the Respondent was advised by telephone there was a "questionable" fracture of the ankle. In response, Respondent gave orders for immobilization of the wound and administration of antibiotics. The following day, when Respondent saw the patient, he could see no open wound nor could he find evidence of a fracture. As a result, he discontinued the prescription for antibiotics and discharged the patient who, it should be noted, did not sustain an infection and who did well in his recuperation. Respondent indicates he had been told by the family physician who admitted the patient and the nurses on the floor, with whom he discussed the patient, that there was no open wound sustained by this patient. On the basis of this information, Respondent prescribed the questioned course of treatment and it would appear it was appropriate and well within standards. Between November 12, and November 22, 1983, Respondent acted as surgical consultant regarding a patient being treated at Gateway Community Hospital for a metatarsal fracture. Respondent performed an open reduction and internal fixation of the fracture and Petitioner now claims that Respondent failed to keep adequate medical records justifying the course of that patient's treatment. In that case, Petitioner does not claim improper treatment by the Respondent. However, one expert for Petitioner could not determine with any degree of certainty whether or not the procedure was required because of the absence of pre- operative X-rays and because of the inadequacy of the records for him to look at. The other Petitioner expert agreed that the Respondent took adequate care of the patient but because of the absence of postoperative film, the taking of which is a general practice within the medical community, he was not able to determine, nor would the Respondent be able to determine, whether the surgeon missed anything in performing the surgery. Respondent's evidence unequivocally contradicted the testimony of both Petitioner's experts. There were X-rays taken prior to the procedure by Respondent which showed a fracture of the outside metatarsus, (long foot bone). He proposed outpatient surgery of one day and reduced the fracture, inserting two pins as security. The postoperative X-rays show proper reduction. In fact, there are several sets of postoperative films and those taken after the holding pins placed in the fracture were removed show good reduction and full healing. Respondent discharged the patient from orthopedic care after surgery for release the next day if approved by the referring, physician, Dr. Lew. However, Dr. Lew kept the patient in the hospital one or two days after that for a reason not related to the orthopedic surgery done by Respondent. This would tend to explain the reason for there being no follow-up progress notes on the two days following the operative report done by Respondent on November 23. The failure to keep adequate notes adversely affects the entire care team not just the attending physician, as without adequate notes, the team cannot tell what is going on with the patient. The entire care is summarized in the progress notes and the failure to make notes on time leaves a hole. That cannot be said to have been the case here, however, since the orthopedic treatment of the patient was completed with the dictation of the operative report and the patient was discharged by Respondent. The patient's retention in the hospital for several days more was by another physician on a matter totally unrelated to the Respondent's treatment and Respondent had no responsibility to keep records on that portion of the patient's hospitalization. It cannot be said, then, that Respondent's records were inappropriate in this case. Respondent is also alleged to have improperly failed to perform a procedure of open reduction and internal fixation of an ankle fracture on a patient treated by him at Gateway Hospital between January 20, and January 25, 1983. In this case, Petitioner's expert questions whether the inner bone was properly reduced. X-rays taken subsequent to the procedure, show the reduction left a big gap and an irregular joint and the doctor feels the procedure, as it was done, was below standards. The other Petitioner expert concurs. There were two fractures. The smaller, did not need to be fixed since it was less than 1/3 of the ankle area and medical opinion indicates that fractures of less than 1/3 of the area should not be fixed. The other was fixed improperly in that Respondent should have used a tension band instead of a screw. If he had done so, there would have been a better fixation. Respondent's expert disagrees, pointing out that the postoperative X- rays show the position of the bones as placed by the Respondent, was quite acceptable. The failure to get an anatomic, (as developed by nature), reduction is not indicative of substandard care. It is sometimes not possible to put bones back the way they were prior to the fracture. In the instant case, when the operation and casting were done, the results were acceptable. The doctor concludes this was a very difficult operation to do and under the circumstances, the Respondent's performance met the standards within the community. Respondent's other expert agrees. This was an extremely difficult fracture of three sections of an ankle. Admittedly, Respondent's work resulted in a slight bone irregularity. A smooth reduction would be ideal, but it is unlikely that an anatomic reduction could be had in this case. No matter how skilled the work, a fracture of this kind is likely to result in some arthritis, and the failure to use a tension band, as suggested by one of Petitioner's experts, as opposed to a screw as chosen by the Respondent is a matter of choice. Neither gives better results and the Respondent's choice here, in these circumstances, was reasonable. Between December 18 and December 27, 1984, Respondent performed an open reduction and internal fixation of a fractured right hip. Petitioner alleges that Respondent performed a surgical procedure which was unnecessary, failed to properly perform the surgical procedure done, and failed to keep adequate medical records justifying the patient's treatment. In this case, Respondent inserted a Jewett nail, a non-collapsing nail, into the bone. The bone collapsed and drove the nail up into the end of the bone in an inappropriate manner. One of Petitioner's experts took issue with Respondent's use of the Jewett nail calling it an outdated device. In his opinion, the Respondent did not plan properly to have the appropriate device on hand when it was needed. His opinion is supported by that of the other Petitioner expert who pointed out that the procedure resulted in an inadequate fixation. He contends the Respondent should have used a collapsible nail and that Respondent's technique of cutting the bone after the collapse was inappropriate and resulted in a shortening of the leg. He believes this procedure was improper and falls below medical standards in the community. He was also of the opinion that Respondent's record keeping in this case was inadequate. Petitioner's expert in medical records found several problems with Respondent's records on this patient. The initial note was dictated after surgery instead of when the consult was first done. No progress notes were in the file for those days when the patient was not seen by the Respondent. There was no showing that the patient was seen by someone left in charge by Respondent in his absence. Since medical records provide a history of the case and allow the follow-on staff to provide continuation of care, the evidence showed Respondent's records in this case were below standard. Respondent's witness, Dr. Weiss, does not believe that the use of the Jewett nail is necessarily inappropriate. The fact that the Jewett nail did not work out for the Respondent in this case and required follow-up surgery, is not necessarily indicative of improper treatment. Studies of similar fractures in elderly patients show that 70% had some deviation and many similar cases show penetration of the head of the bone by the nail such as was the case here. While there are newer nails used by many orthopedic surgeons, the Jewett nail is still appropriate. The physician can avoid penetration at the time of the insertion and Respondent did so, but penetration cannot always be avoided after surgery when weight is placed on the limb. Respondent's other expert who reviewed this case stated that the fixed nail used by Respondent, if properly used, gives equally good results as the newer collapsible nail. Cutting of the bone is a well known and appropriate procedure in cases where necessary, as here. In evaluating the testimony of the experts, it should be noted that neither of the Board's experts interviewed Respondent or in any way discussed with him his professional reasons for doing what he did. Their opinions given here as expert testimony were based on evaluation of records and X-rays only whereas the opinions of Respondent's experts were based on review of the same documentation and also on interviews with Respondent who was questioned and who expounded on his medical rationale. Having analyzed the procedure done by the Respondent here and having evaluated the testimony of all witnesses, it is found that the procedure as followed by Respondent did not fall below the appropriate medical standards within the community. However, the allegation regarding Respondent's failure to keep proper medical records has been established. Respondent is a native of Nigeria, who took his medical training in England, graduating from Kings College Medical school in 1961. He interned in the United States at Bridgeport Hospital, served his residency and as a research fellow in Canada, and returned to the United States for a two year general surgery and three year orthopedic surgery residency at Albert Einstein Medical Center in New York. Respondent came to Florida in 1973 and has been in private practice as a sole practitioner since that time. He is Board eligible in orthopedic surgery and certified in neurological and orthopedic surgery by the American College of Neurological and Orthopedic surgery, not to be confused with the American Board of Orthopedic Surgery. He is also a member of the Royal College of Surgeons. At one time, Respondent practiced at Gateway Hospital in St. Petersburg where all the cases involved in the proceeding came up and where he was involved in legal action involving a matter he had handled. Respondent won that case but nonetheless, had to sue the hospital to recover his expenses. When Gateway Hospital was sold to Humana, he was again involved in litigation with the hospital to retain his privilege to practice there. Thereafter, he was called before the hospital committee regarding the instant cases in a staff privilege matter and as a result, the hospital referred them to the Department of Professional Regulation. Respondent believes two factions in the medical community seek his dismissal and the revocation of his license. He presented a detailed litany of grievances against various members of the hospital staff and others who, he contends, are engaged in a program to destroy him professionally and remove him from the practice of medicine. Since his medical privileges at the hospital have been rescinded, he can no longer accept referrals in orthopedic surgery from other members of the staff at Gateway and as a result, referrals that would ordinarily go to him, are now going to other, more favored members of the staff who retain surgical privileges. He contends his troubles, which culminated in this hearing, are both economically and racially motivated, and also involve an effort to rid the hospital of foreign trained physicians. There is no evidence to corroborate Respondent's charges and , therefore, the decision regarding his standard of practice and his record keeping must be based on the professional evidence presented at this hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Julius A. Okuboye, be reprimanded. RECOMMENDED this 23rd day of February, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearings Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1988. Appendix to Recommended Order In Case No. 86-1048 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. For the Petitioner Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as contra to the weight of the evidence. Rejected as contra to the weight of the evidence. Accepted to the extent that Respondent's reduction was not anatomic but rejected to the extent "it possibly could have been better treated in a cast." Rejected as contra to the weight of the evidence. Rejected as to all but last sentence which is irrelevant since the latter portion of the hospitalization discussed here was after patient had been discharged by Respondent and did not relate to orthopedic treatment. Accepted and incorporated herein. 14-16. Rejected as contra to the weight of the evidence. 17&18. Accepted and incorporated herein. 19. Rejected as contra to the weight of the evidence. 20-21. Rejected as contra to the weight of the evidence. 22. Accepted as to certain records and rejected as to others as discussed in the body of the Recommended Order. For the Respondent Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. First sentence rejected as a restatement of Petitioner's position. Remainder accepted and incorporated. First sentence rejected as above. Last sentence accepted and incorporated. Remainder rejected as a restatement of the evidence. First sentence rejected as above. Second sentence rejected as a restatement of evidence. Third through Sixth sentences accepted and incorporated. seventh rejected as a restatement of Petitioner's position. Eighth and Ninth sentences accepted and incorporated. First sentence rejected as above. second sentence accepted. Remainder accepted and incorporated. First sentence rejected as above. Remainder accepted and incorporated. First sentence rejected as above. Remainder accepted and incorporated. Accepted and incorporated. Rejected as to some cases, accepted as to others as defined in the Findings of Fact herein. COPIES FURNISHED: David E. Bryant, Esquire Suite 2000, Ashley Tower 100 South Ashley Drive Tampa, Florida 33602 Glenn M. Woodworth, Esquire Woodworth and Dugan, Chartered Wittner Centre West 5999 Central Avenue Suite 103 St. Petersburg, Florida 33710 Dorothy Faircloth Executive Director Department of Professional Regulation Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue for consideration was whether the Respondent's license as a physician in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Moheb Ishad Girgis El-Far was licensed as a physician in Florida under license number ME 0026895, and the Board of Medicine was the state agency responsible for the licensing and monitoring of physicians in this state. At all times pertinent to the issues herein, Respondent practiced medicine with a specialty in obstetrics at his clinic located a 401 East Olympic Avenue, Punta Gorda, Florida. Patient 2, C.L., first went to see Respondent at his office in Punta Gorda in January, 1989 because she was pregnant and had heard he was delivering babies in his office. She was referred to the Respondent by the Sarasota Health Department when she indicated she wanted to have her child in a birthing center. During that first visit, the doctor and patient agreed on a treatment plan which would culminate with the baby's being delivered in his office and C.L. paid for this pursuant to their agreement. During the period of the patient's prenatal care with the Respondent, he told her her baby was due on August 30, 1987, and when labor began, she was to come to his office and bring her own sheets. On August 24, 1987, C.L. began her labor and went to Respondent's office as agreed. By the time she got there, she was about ready to deliver and a few minutes after her arrival, she did so in a birthing room with her husband present. At the time of the delivery, both Respondent's wife and Ms. L.'s boss, neither of whom played any part in the proceedings, were standing in the doorway to the birthing room. No nurse was present and C.L. cannot recall seeing any sterilization or resuscitation equipment in the room. C.L. experienced little pain during the delivery, which appeared to go smoothly. Afterwards however, Respondent told her she had sustained an inverted uterus and when Respondent attempted to remove the afterbirth, she started to hemorrhage. When this happened, Respondent gave her a shot and towels with which she was to try to stem the bleeding while he tried to correct the uterine problem. He was unsuccessful and thereafter called the paramedics who came to his office and took C.L. to St. Joseph's Hospital in Punta Gorda for treatment. Respondent did not treat her at the hospital because he had no hospital privileges. While there she required 6 units of blood and 2 units of plasma. At no time during the course of her prenatal care did Respondent advise her to go to the hospital. She fully recovered. C.L. was shown pictures of Respondent's office taken by Department investigators at some time subsequent to her delivery. With the exception of the fetal monitor which she had seen in his office, the pictures she saw bore little similarity to the condition of the office whenever she was there. Though the office was not as messy as the pictures show, she was, nonetheless concerned about its condition at the time of her delivery. The carpet was dirty and so was the aquarium. She could not do anything about it at that time, however, and it was not so bad as to cause her to feel unsafe. S.K., Patient 1, first went to the Respondent for her pregnancy care in November, 1987 on a referral from a friend. They agreed on a fee of $1600.00 for prenatal care and delivery in his office. During these initial discussions, Respondent did not discuss in detail with the patient the possibility of complications. He stated only that if there were complications, they could probably be treated in the office. S.K. went to Respondent's office about 6 times after that initial visit. During this period, on an early visit, Respondent gave her some medicine samples and a prescription for vitamins. When she asked about the cost, he said he would include the cost of the samples when he billed her insurance company. During these visits, she also saw his personal office, an examining room, and a small room where the patient's blood pressure was taken. She noted that the office was not as clean and orderly as others she had seen, and in fact, was usually in a state of disarray. On one occasion when Respondent examined her, he was wearing a wrinkled shirt with a blood spot on it. The next time she went for a visit, Respondent was wearing the same shirt. S.K. was shown pictures of Respondent's office taken by investigators and several were similar to conditions she observed there. His personal office was not well organized and there was clutter about but not as aggravated as appears in the photos. Based on her experience with other doctors, Respondent's office was far more untidy and in disarray but not necessarily nonsterile or unsafe. On February 5, 1988, S.K. went to Respondent's office because she was having pains and thought she was in labor. When she called him and explained her symptoms, he told her to come in and he examined her when she did. He gave her something to calm her and to try to stop her labor in an attempt to save her baby. He gave her a shot of demerol and put her in an examining room to lie down. She slept there for quite a while with her husband present. When she awoke she again began to have pains but Respondent would not give her any more medicine. After a while, the baby spontaneously delivered while Respondent was sleeping in another room. He was called but by the time he came in, the baby was dead. He asked S.K. if she wanted to see the fetus but she declined. After a period of recovery, she was released to return home. When this patient came into the office that day and it appeared she was going to deliver, her husband asked Respondent if he thought she should be in the hospital. Respondent replied that it was up to her because the baby, if delivered, was too premature to survive. The decision not to go to the hospital was hers. Respondent did not try to dissuade her from going. In fact, in most ways she considered Respondent's treatment of her to have been satisfactory. During the period she was in his office Respondent was in and out of the room checking on her. The only complaint she has relates to his handling of the fetus she delivered. About 2 weeks after delivery she again went to see Respondent at his office where he showed her her baby which he had preserved in a jar of formaldehyde. This was a strange and sad experience for her. Mr. K. basically confirms that testified to by his wife. While she was in labor or sleeping prior to the delivery, he wandered about the building into other parts of the clinic. He also rested in one of the examining or birthing rooms and observed the general state of cleanliness of the facility was poor. For example, the floor and rugs were spotted throughout with a dark stain and the examining table also had a dark stain on it. These stains looked to him like blood. In addition, the hallway carpets were dirty, there were bags off debris laying out, spare pieces of wood were stacked in the halls, and medical instruments were left out in the birthing and examining rooms. In his opinion, many of the pictures shown to him displayed scenes similar to what he saw when he was there with his wife. Both Dr. Borris and Dr. Marley agreed that Respondent's treatment of Ms. K. had no relationship to her miscarriage. By the same token, neither claims that his treatment of Ms. L.'s inverted uterus was inappropriate. Both agree, however, that other factors in Dr. El Far's operation of his practice as regards both patients failed to conform to generally accepted standards of care in providing obstetrical services. Specifically, he failed to have a nurse present during the delivery; he failed to have emergency equipment in the form of resuscitative and lifesaving equipment available to handle potential surgical complications which might have arisen; he had no emergency backup care available; and he had no hospital privileges in Punta Gorda, the area in which he was engaged in an obstetrical practice. Without those privileges, it was not prudent for him to undertake a delivery in the office. While the prenatal care of patient 1 was within standards, the balance of Respondent's practice was below standards because: the patient was not monitored while in the office; if the conditions as appearing in the pictures existed at the time he was seeing patients, he did not meet sanitation standards because of the general disarray.; he attempted a delivery in his office when a hospital was only 1.5 miles away, (not prudent in light of the patient's condition when there was no emergency to justify it); and his records were not complete. The standard of a reasonably prudent physician is the same regardless of the locality. Acceding to the wishes of a patient, when to do so is not in the patient's best interests, is not necessarily acceptable medical care. Mr. Cook, the Department's investigator, inspected Respondent's office on September 16, 1988, in the company of investigator Clyne, as a result of a call he received from an agent of the Florida Department of Law Enforcement who was then on the premises. When they arrived, they observed a female sitting on the couch in the waiting room changing a baby's diaper. From conversation he had with Respondent at the time, Mr. Cook inferred the lady was a patient. In addition to the previously mentioned lady and the state investigative personnel, Cook also noticed two children, who Respondent indicated were his, running freely about throughout the building. Cook examined the patient log maintained by Respondent for that day and noted that two patients were scheduled. Nonetheless, while he was there, there were no nurses, receptionists or office staff present. Though Respondent claims he did not have any patients that day, and though Cook did not see any other than the lady aforementioned, from the patient log and the fact that at least one patient was there, it is found that Respondent was engaged in at least a minimum practice and was available to see patients. Mr. Cook observed conditions in Respondent's office on the day in question that were inconsistent with a proper medical practice. Trash was not contained, food was left open, and dust and dirt were in evidence, all in the area where medical services were or would be rendered. Mr. Cook took photos and a video tape of the condition of Respondent's office. The photos were those shown to the two patients who testified herein and to Mr. K. Though he looked throughout the office, Mr. Cook could find no sterilization equipment, no general anesthesia equipment, no blood transfusion equipment, and no emergency resuscitation equipment. When asked about his sterilization capability, Respondent stated his "heater" was broken and in for repairs. When during a visit to Respondent in October, 1988, Ms. Clyne told him he needed sterilizer equipment, he indicated it had recently been purchased. On that visit, Respondent had a patient in the office. Ms. Clyne again went to Respondent's office on February 15, 1989 and observed it to be still in a state of disarray. Ms. Hampton, another Department investigator, visited with Respondent in his office on January 11, 1989 and found it to be unsatisfactory. The waiting area was cluttered, the carpet was dirty, the walls stained, and magazines were laying around. The clinic area was piled up with mail leaving no counter space. Respondent took Ms. Hampton on a tour through the office during which she observed the computer, patient records, and the typewriter to be unclean. Her examination of the halls, examining rooms, birthing rooms, and the like revealed that in one room, a sink had an unclean speculum in it and others were lying about. The paper on one examining table was soiled and when Respondent saw that, he quickly tore it off. The spread in one of the birthing rooms was soiled and the floor needed sweeping. Trash cans were not lined and needed cleaning. The covering on the baby examining table was soiled and there were bloody cotton balls on a table in the room. She, too, saw no evidence of any sterilization, anesthesia, or emergency resuscitation equipment. On this visit, Respondent indicated he was not seeing any new patients; only those former patients who were still pregnant. Respondent indicates that during the period from July 4 through September 16, 1988 he had closed up his office for an extensive vacation and was living in his office on that latter date. He does not deny that his office was in the condition as depicted in the photos when they were made but contends he has since cleaned it up and put new carpet down. During the period his office was closed, he referred his patients to other doctors and has not been actively practicing while waiting for his malpractice insurance to come through. Respondent also does not deny that the Certificate of Education form he signed and submitted to the Board was in error. He contends, however, that at the time he signed it he believed it to be a certificate of regular continuing education hours, not a certification used for approval for dispensing drugs. He also claims that at no time did he intend to defraud the Board, and when Ms. Clyne brought the error to his attention, he wrote to the Board explaining what had happened. He contends that when he affirmed the statement that he had the appropriate hours, he considered the "a" in "affirm" to be a negative prefix indicating he did not have the required hours. This contention is both ingenuous and unbelievable. It is found that Respondent well knew the meaning and effect of the certification he signed and his affixing his signature thereto was both false and with intent to mislead.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license to practice medicine in Florida be suspended for two years and that he thereafter be placed on probation for an additional period of three years under such terms and conditions as are imposed by the Board of Medicine. RECOMMENDED this 30th day of October, 1989, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1507 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings Fact submitted by the parties to this case. For the Petitioner: 1.- 3. Accepted and incorporated herein. Accepted and incorporated herein. Rejected in so far as it editorializes on the condition of the clinic. While below standard, there was no evidence of health hazard to patients. 6.-8. Accepted and incorporated herein. 9. & 10. Accepted and incorporated herein. 11. & 12. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein Accepted and incorporated herein. Accepted. & 18. Accepted and incorporated herein. 19. Accepted. For the Respondent: 1. & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Rejected as contra to the weight of the evidence. Rejected as contra to the weight of expert testimony. Rejected as contra to the weight of the evidence. Accepted in so far as it finds that Respondent's performance of medical procedures was within standard. Rejected as to the finding that overall care and practice was within standards. Accepted. COPIES FURNISHED: Larry G. McPherson, Jr., Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 David K. Oaks, Esquire The Professional Center 201 West Marion Avenue Suite 205, Box 3288 Punta Gorda, Florida 33950 Kenneth E. Easley General Counsel DPR 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dorothy Faircloth Executive Director Board of Medicine DPRB 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times pertinent to the issues contained herein, the Respondent was a licensed medical doctor in Florida having been issued license number ME 0041256. Respondent was awarded his medical degree by the University of Tennessee in 1977. He came to southwest Florida in January, 1983 starting his practice in August of that year. He thereafter applied for and was granted privileges at Lee Memorial Hospital and practiced in Lee County until January, 1985 when he moved to Collier County. In January, 1985, Dr. Heiss notified Lee Memorial Hospital that he was moving his practice and that he no longer needed privileges at that facility. This was partly in response to a letter from the hospital asking him to resign which was, at least in part, based on his failure to keep his medical records current. He admits that prior to that time, he had received some notices involving incomplete records at the hospital and went in to work on them as best he could. However, due to his own medical problem which involved a prolonged throat infection that left him tired and weak, he could not accomplish much. This medical problem lasted for several months and when he was feeling better, he tried, to the best of his ability, he claims, during the summer of 1985, to complete the incomplete records. He went to the hospital and worked on some of them, but in late 1986, when he checked with clerical personnel in the medical records section, he was told his records were complete, and coincidentally, he stopped getting delinquency notices. Under the procedure in effect at Lee Memorial Hospital for correcting incomplete records in 1984, once a week, Ms. Lindahl, the assistant manager of the records section, would go through the files to determine which records were delinquent. If dictation was needed, the chart would be declared delinquent in 15 days. If only the signature was missing, the doctor was give 45 days to correct it. When the record was declared delinquent, medical records personnel would send a weekly reminder letter to the physician setting a one week suspense for correction and indicating that if the correction was not made, the doctor's hospital privileges could be suspended. These temporary suspensions, however, were not being enforced. According to Ms. Lindahl, in 1985, Dr. Heiss was identified and placed on the delinquent list 35 times. Because of this, he would have been sent 35 letters. In January, 1985, at the time Respondent left Lee Memorial Hospital, he left incomplete 84 charts. Because of the volume of incomplete records left by Respondent, the hospital Medical Records Committee, on May 2, 1985, authorized Ms. Lindahl to transfer these incomplete records to the permanent records section of the archives, a procedure that would not normally have been done with incomplete records. This transfer was accomplished in August, 1985. After Respondent left the hospital, in January, 1985, up to March, 1985, Ms. Lindahl contacted him both at home and at his new office both by phone and by letter on several occasions, and asked him to come in and complete his records. Each of the letters sent indicated those charts, by name, which needed completion. After the charts were transferred to permanent records in August, 1985, until February, 1987, Ms. Lindahl did not make any further effort to contact Dr. Heiss, nor did he contact her. However, she was informed by the Hospital Administrator that Dr. Heiss was to come in and work on the records. Therefore, she pulled these records for him and, in fact, the Respondent did, on some occasions, come in at night to work on them. Ms. Lindahl agreed to pull records for him as needed but advised him that she could not and would not pull all his incomplete records at one time. Charts are placed on microfilm after a period of years. Some of Respondent's charts were microfilmed before he completed them. However, the hospital made arrangements for him to complete these records as well in an effort to accommodate him. Once the records were placed on microfilm, it was more difficult for Dr. Heiss to complete them since, initially, there was no dictating equipment available in the microfilm reading area. However, it could have been done by Respondent taking notes from the film and thereafter dictating those notes in the records room where dictating equipment was available. However, that was not necessary, since the hospital set up a booth with dictating capability in it for him in the microfilm reading area. An Administrative Complaint was filed against Dr. Heiss in October, 1985, because of his incomplete files. The matter was referred to the Board of Medicine in February, 1987, after a stipulated settlement was reached between the Respondent and Counsel for the Board. On February 11, 1987, the Board of Medicine entered a Final Order which approved and adopted the stipulation entered into between Respondent and counsel for the Board on December 23, 1986. Paragraph 4 of the stipulated Disposition in this case provided that prior to the stipulation being presented to the Board, Respondent would complete all incomplete hospital records that he was responsible for at Lee Memorial Hospital. Dr. Heiss contends that at that time, he understood his medical records to be complete, based upon his inquiry to personnel in the medical records section at the hospital. He indicates he made several inquiries of at least two separate employees who told him they could find no record of any incomplete files charged to him. Once his incomplete records were transferred to permanent storage, they were deleted from the computer and a routine inquiry would not have disclosed them. However, Ms. Lindahl had in her possession a complete list of his still incomplete records and a simple inquiry to her, the person in charge, would have given him the correct information. Dr. Heiss did not check with Ms. Lindahl, who worked days even though he admits he may have been in the hospital for other reasons on several occasions during the day. He would usually come in during the evenings, and on one occasion, spoke with Mr. Shuler, the night records custodian, who checked the computer and found no record of the doctor's delinquency. Mr. Shuler, however, advised Dr. Heiss to check with Ms. Lindahl. Dr. Heiss states he believed that the Stipulation he worked out with counsel for the Board in response to the initial Complaint, took care of the problem. When he went before the Board in February, 1987, he had checked with medical records at the hospital and had been told his status was clear. This check was not with Ms. Lindahl, however. When he did so, he found he did have unfinished records. It was at that time, after the stipulation was signed, that he began to bring the records current. Dr. Heiss admits that during the period 1985 - 1986, believed there were some medical records that were incomplete but because they had been filed in the permanent records section, he believed his responsibility for them was fulfilled. As a practicing physician, he relies upon the medical records section to tell him what records need to be completed. When he was advised by that agency that he was no longer delinquent, he felt satisfied. This argument is specious and without merit. Respondent admits he did not make any attempt to work on the records from January to July, 1986. He contends that from July, 1986 to January, 1987, he called the hospital several times to check on his records but could get no indication he had files undone. It was not until after the Board meeting in February, 1987, when Mr. Shuler told him to speak with Ms. Lindahl, that he determined he did have some medical records incomplete. Notwithstanding, he knew he had some dictation that was incomplete and some matters were unsigned and in his opinion, it is more a question of semantics, (what the term, "incomplete" meant), and not knowing what he had to do. He contends he dealt in good faith with the hospital and with the Board of Medicine and was surprised to find out that he was not in good standing. This argument as well, is unbelievable. Dr. Heiss contends he relied on what he was told by the people at medical records but at no time until after he entered into the Stipulation with the Board of Medicine in 1987 did he contact Ms. Lindahl even though he knew she was the one who was in charge of delinquencies and was still employed by the hospital. It was incumbent upon him as the physician to contact the person in charge, especially in light of his suspicion that certain records were incomplete, and not rely on phone calls to anyone who answered. This does not constitute reasonably prudent action or the actions of a reasonable man. It cannot reasonably be claimed that Dr. Heiss' actions were based on an honest and reasonable mistake of fact. As a physician, he should have assumed that the Board wanted and required all records to be completed and it was his responsibility to insure that the records were, in fact completed. This he failed to do. On March 20, 1987, Respondent still had 53 charts incomplete of the 84 charts he had left incomplete when he departed the staff of Lee Memorial Hospital. These 53 charts were completed by November, 1987.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's license as a medical doctor in Florida be suspended for ninety days and that he pay an administrative fine of $1,000.00. RECOMMENDED this 29th day of January, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2674 The following constituted my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. BY THE PETITIONER 1 & 2. Accepted and incorporated herein. 3. Accepted 4 - 8 Accepted and incorporated herein. Accepted and incorporated herein. Rejected as contra to the evidence. 11 - 13. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. 17 - 19. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. 23 & 24. Accepted and incorporated herein. 25. Argument rather than Finding of Fact. 26 & 27. Accepted and incorporated herein. BY THE RESPONDENT No submittal. COPIES FURNISHED: Dorothy Faircloth Executive Director DPR, Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32399-0750 Susan Branson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dan E. Batchelor, Esquire Post Office Box 1899 Bonita Springs, Florida 33923
The Issue The administrative complaint charged Respondent in Count I with violating Section 458.331(1)(t), F.S., failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, and in Count II with violating Section 458.331(1)(m), F.S., failure to keep written medical records justifying the course of treatment of the patient, including but not limited to, patient histories, examination results, and test results.
Findings Of Fact At all times material, Respondent was a licensed medical physician in the State of Florida, having been issued license number ME004552. On October 24, 1988, Patient #1, a 67 year old female, presented by wheelchair at the Physicians Referral Center (PRC) emergency room of the Marion Community Hospital in Ocala, Florida. Respondent was on duty there at that time. Patient #1, arrived at the emergency room at approximately 1:50 a.m. complaining of gas, no bowel movements for three days, feeling weak, and a highly elevated blood sugar of 412 as of 5:00 p.m. the evening before. Patient #1 was accompanied by her husband, who provided some of the foregoing information. Alicia Ables, R.N., attended Patient #1 when she arrived, took her vital signs which appeared to be within normal limits, and noted in the patient medical records, at the bottom of the nurse's notes, that the patient had heart problems, diabetes, kidney problems, and was taking medications. The nurse attached to the patient's medical records a list of the patient's current medications which had been provided by the husband. These medications included Isordil, Trental, Ascriptin, Lasix, Lanoxin, Depyridamole, Capoten, Riopan Plus, Mylicon 800, Pilocarpine eye drops, Tylenol and Humulin N-100, 30 units in the morning and 6 units in the evening. Humulin N-100 is a low level prescription for insulin diabetic maintenance. Mylicon is an anti-gas preparation. The foregoing history was on the patient chart when Respondent saw the patient a few minutes later. Respondent saw the patient at approximately 2:10 a.m. At that time, only the patient, her husband, and Respondent were present in the examining room. No nurse was present in the examining room with them, but Ms. Ables testified that the absence of a nurse during a rectal examination of a female patient occurred occasionally if not regularly at PRC. Nurse Ables was not present in the examination room at the time of the examination and is without knowledge of the extent of Respondent's examination of Patient #1. The patient, who is now deceased, did not testify. The patient's husband did not testify. The only person who was present in the examining room on October 24, 1988 who did testify was Respondent, and his testimony is unrefuted that he performed a routine examination of the patient's chest, abdomen, and skin, that he also performed a rectal examination during which he found the patient's rectal vault "empty," and that he concluded that there was no fecal impaction but some retention of gas. He concluded that a soap suds enema was not warranted, given the patient's condition. He stated that despite believing that the patient had some retention of gas, he considered her to be "fixated" in her mind on the gas problem. When the Respondent examined the patient on October 24, 1988, he contemporaneously noted on her chart that her chief complaint was accumulation of gas, that she wanted a soap suds enema, and that she had spoken earlier with Dr. Sunkavalli, who had referred her to the emergency room. Dr. Sunkavalli was the patient's primary treating physician. Respondent also noted on the chart at 2:25 a.m. on October 24, 1988 that Dr. Sunkavalli would follow the patient as an outpatient. He also wrote down that he diagnosed her as having "gas retention fixation." He ordered Mylicon 80 to be administered to her. She was not given a soap suds enema, was not admitted to the hospital, and was not transferred to another hospital. Respondent did not order any laboratory tests or x-rays. Administration of the Mylicon 80 was noted on the patient's chart by a nurse other than Ms. Ables at 2:40 a.m. That nurse also noted on the patient records that Patient #1 was discharged home at 3:00 a.m., in stable condition. None of the typically observable symptoms of ketoacidosis in the patient were observed or noted by Respondent or by Ms. Ables while the patient was at PRC. Patient #1 was admitted to Citrus Memorial Hospital six and one-half hours after being discharged from Respondent's care. Three hours after her admission to Citrus Memorial, the patient died. After autopsy, the principal pathologic diagnosis and cause of death was listed as "marked three vessel artherosclerosis with large, old myocardial infarction." The gross summary reads, "Death of this 67-year old, white female was due to marked three vessel arteriosclerosis secondary to arteriosclerotic heart disease. A contributing factor was diabetic acidosis." There was also evidence of a gastro-intestinal bleed. When Patient #1's death became an issue the next day, Respondent was unable to recall the patient or his examination and treatment of her. The Respondent reviewed the emergency room records and spoke with Ms. Ables in order to recall the care he had rendered to the patient. Respondent prepared an addendum to the patient's medical records three days after he actually examined Patient #1. Only at that late date, October 27, 1988, did Respondent document a history, document that he had made a physical examination, and document that he had had a telephone consultation with Dr. Sunkavalli on October 24, 1988 while the patient was in the emergency room, and further document that he and Dr. Sunkavalli had concurred at that time in treating the patient with Mylicon. Adding the addendum was deemed appropriate under the circumstances by Marion Community Hospital personnel, and Petitioner's expert did not specifically find that adding it was inappropriate or improper. Respondent had not documented the telephone consultation with Dr. Sunkavalli or a history or physical examination of Patient #1 at the time he examined her on October 24, 1988. Neither on the date of examination/treatment nor in his later addendum did Respondent ever document that he had performed a rectal examination on Patient #1. In his testimony at formal hearing, Respondent explained and supplemented his October 27, 1988 addendum notation of a telephone conversation with Dr. Sunkavalli on October 24, 1988 to add that Dr. Sunkavalli was aware at that time of Patient #1's elevated blood sugar reading the previous evening but, hearing Respondent's examination results, Dr. Sunkavalli had recommended no further tests and had said nothing to disagree with Respondent's assessment and treatment of the patient and that while Respondent had not deferred to Dr. Sunkavalli, he had relied on the consultation. Dr. Sunkavalli was not called to corroborate or refute Respondent's testimony on this score. Jack Kareff, M.D., was accepted as an expert in emergency room medicine. He opined that, under similar circumstances, and particularly with an elderly diabetic patient, the minimal acceptable level of care, skill, and treatment of a reasonably prudent similar physician would have been to examine Patient #1's abdomen, perform a rectal examination, and perform a dipstick of urine for both glucose (sugar) and acetone. Dr. Kareff also expressed the opinion that the rectal examination should have been made to eliminate the chance of fecal impaction and that such rectal examination should have included treating a sample of fecal matter found in the rectal vault with a paper reagent to determine if there were occult blood in the patient's stool so as to rule out gastro-intestinal bleeding. Dr. Kareff testified that there is sufficient fecal matter for such a test in the rectal vault 99% of the time. He conceded that an enema might not be warranted and could be potentially traumatic, given such a patient's condition. Dr. Kareff indicated that the urine dipstick test should be done to ensure that the patient was not headed for diabetic ketoacidosis. The urine dipstick test proposed as a minimal requirement by Dr. Kareff was also described by him as actually "problematic" in that he admitted that such a dipstick test can "fool you" occasionally because not enough aceto acetate is formed to tell the patient's true condition. According to Dr. Kareff, ketoacidosis may take anywhere from 2 hours to several weeks to develop in a diabetic. On the foregoing information, the efficacy of a dipstick test was not established. Because he believed that Respondent had not done the abdominal examination, rectal examination with stool testing, and urine dipstick test, Dr. Kareff further opined that Respondent had fallen below the acceptable level of care, skill and treatment as recognized by a reasonably prudent similar physician under similar conditions and circumstances. In forming his foregoing opinions, Dr. Kareff had not had the benefit of hearing Respondent's unrefuted testimony that Respondent had, in fact, performed a rectal examination, determined that there was no fecal impaction, and found the patient's rectal vault empty. Accordingly, the record is devoid of Dr. Kareff's opinion, if any, as to what should have or could have been done as regards a fecal test when the patient's rectal vault is "empty." Dr. Kareff's opinions assumed and relied on some material contrary to the facts established in this proceeding. Dr. Kareff's opinion also relied upon much uncorroborated hearsay evidence, such as the agency's investigative report. These reliances and assumptions on Dr. Kareff's part detract from the weight and credibility of his opinion on minimal professional treatment, and therefore that opinion is not persuasive. The parties have stipulated that Respondent's medical records were inadequate. This stipulation and Dr. Kareff's opinion that Respondent failed to keep written medical records justifying the course of treatment are accepted.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Medicine enter a final order: Finding that Respondent is not guilty of violating Section 458.33(1)(t), F.S. and dismissing Count I of the Administrative Complaint; Finding that Respondent is guilty under Count II of the Administrative Complaint of violating Section 458.331(1)(m), F.S., failure to keep written medical records justifying the course of treatment of the patient, including but not limited to, patient histories, examination results, and test results; and Reprimanding Respondent for the single violation, fining him $1000.00, and requiring him to complete one basic level continuing medical education course in record keeping responsibilities and techniques within one year of the entry of the final order. DONE and ENTERED this 24th day of April, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 24th day of April, 1992. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-5014 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1-12 Except as to subordinate, unnecessary or cumulative material, accepted. 13-14 Rejected because it is largely subordinate to the facts as found in FOF 18-21. 15 Rejected as a conclusion of law but also for the reasons set forth in FOF 18-19. Respondent's PFOF: 1 Covered in the preliminary statement, the FOF, or the Conclusions of Law. Accepted as covered in the rulings on Petitioner's PFOF. Rejected as legal argument. 4-6, 20-21, 37-38, 44, 46-48 Accepted but subordinate to the facts as found. 7-8 Covered in FOF 3-4. 9 Accepted with time adjustment per greater weight of the evidence. 10-11, 13-18, 22-24, 39-40, 45, 49-63, 66 Except as to subordinate, unnecessary, or cumulative material, accepted. 12 Accepted, except as to characterization "necessary". 19 Covered in FOF 17. 25 Covered in FOF 8. 26-28 Covered in FOF 18-21. 41-42 Covered in FOF 18-21. 29, 31 Rejected as irrelevant. 30 Covered in FOF 15. 32-36, 67 These proposals are irrelevant, out of context, or misleading as stated, since Dr. Kareff did not specifically advocate a soap suds enema and Respondent did not feel it was warranted. To the extent necessary, the subject matter is covered in FOF 7-9, 14-17, and 18-22. 43 Covered in FOF 7. 64-65, 68 Rejected as unnecessary and/or unproven. COPIES FURNIISHED: Louis Kwall, Esquire Gross and Kwall, P.A. 133 North Ft. Harrison Avenue Clearwater, Florida 34615 Susan E. Lindgard, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Dorothy Faircloth Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The issues in this case are: (1) whether Petitioner is entitled to repayment for alleged Medicaid overpayments to Respondent; and, if so, the amount of the overpayment to be repaid; (2) the amount of any fine to be imposed against Respondent; and (3) the amount of any investigative, legal, and expert witness costs to be assessed against Respondent.
Findings Of Fact The Parties Petitioner is the agency responsible for administering the Medicaid program in the state of Florida, including overseeing the integrity of that program. § 409.913, Fla. Stat.1/ Respondent is a board-certified family practice physician. During the Audit Period,2/ Respondent was an enrolled Medicaid provider authorized to receive reimbursement for covered medical services rendered to Medicaid recipients.3/ Respondent provides medical services in a rural area to an underserved population. A substantial proportion of his patients are poor and are Medicaid recipients. The Audit As part of Petitioner's duties in overseeing the integrity of the Medicaid program, it investigates and audits Medicaid providers for services rendered to Medicaid recipients. In what is commonly referred to as the "pay-and-chase system," Medicaid providers bill Petitioner for medical services rendered to Medicaid recipients and Petitioner pays these bills, which are referred to as "claims." Thereafter, Petitioner audits those claims. The audit is conducted to determine whether the medical services rendered were appropriate for the condition being treated, whether the amounts billed for services are correct based on documentation provided, and whether Medicaid covers the services provided. If Petitioner determines that the provider was paid for services that did not comply with the Medicaid program requirements, it seeks reimbursement from the provider of the payments made for noncompliant claims. Here, Petitioner audited Respondent's medical records to verify that claims paid by Medicaid during the period from January 1, 2012, through June 30, 2014 (the "Audit Period"), qualified for payment under the Medicaid program. During the Audit Period, Respondent submitted a total of 7,093 claims for billable services rendered to a total population of 854 Medicaid recipients, for which Medicaid paid a total of $448,314.06. Rather than examine the medical service provision records of all 854 recipients Respondent served during the Audit Period, using a computer program, Petitioner randomly selected a sample comprised of 35 recipients from the total population of recipients. Respondent submitted 245 claims for the 35 recipients in the sample population. Once these 35 recipients were identified, Petitioner requested that Respondent provide the Medicaid services records for the claims submitted for these recipients. Upon receiving the Medicaid services records from Respondent, Petitioner, through its nurse consultant, Karen Reynolds, and its peer reviewer, Dr. Lisa Jernigan,4/ reviewed the claims for these 35 recipients. Reynolds' review of Respondent's records consisted of identifying the claims for which Respondent provided insufficient or no documentation, as required by the 2008 and 2012 Florida Medicaid Provider General Handbooks ("Handbooks"), to support the claims. When she determined that insufficient documentation had been submitted to support a claim, Reynolds made notations on a worksheet created for that particular recipient, regarding the insufficiency of the documentation. Reynolds made her notations on the worksheets in light red ink. After Reynolds completed her review, the records were transmitted to Dr. Jernigan for a substantive review of each claim to determine whether the documentation submitted in support of a claim complied with the pertinent standards in the Handbooks for payment of the claim. Based on her substantive review, Dr. Jernigan determined, for each claim, whether the claim should be approved, adjusted, or denied.5/ Dr. Jernigan's notations regarding approval, denial, or modification of payment for each claim, as well as the basis of her determination for each claim, were made on the worksheets in green ink and in darker red ink. After Dr. Jernigan completed her review of the claims, Reynolds went back through the worksheets and made additional notations, such as "NMN" for "not medically necessary," summarizing Dr. Jernigan's substantive review, in light green ink. For each claim that Dr. Jernigan determined should be adjusted or denied, Reynolds wrote the disallowed amount in the "dis-amt" space on the worksheet for that claim.6/ Based on the competent, substantial, and persuasive evidence, the undersigned determines that the audit was properly conducted. Dr. Jernigan engaged in the peer review of Respondent's records, and Reynolds merely served as an assistant whose role was confined to the ministerial tasks of determining whether Respondent had submitted the documentation requested by Petitioner for purposes of determining compliance with the Handbooks, and, after Dr. Jernigan completed her substantive peer review of each claim, summarizing Jernigan's determinations, as appropriate, and calculating the disallowed amounts for claims that Dr. Jernigan had determined should be adjusted or denied.7/ On the basis of this review process, Petitioner determined that Respondent had been overpaid in the amount of $4,867.97 ($19.86832653 per claim) for the 245 claims in the 35- recipient sample population. Using the statistical formula for cluster sampling,8/ which extrapolates the overpayment determined from the sample population across the total population of 7,093 claims, Petitioner determined that Respondent had been overpaid the total amount of $104,951.05. Petitioner informed Respondent of this preliminary overpayment determination through its Preliminary Audit Report ("PAR")9/ issued on November 10, 2015, and gave him the option of submitting further documentation in support of the claims that had been preliminarily identified as ineligible for payment by the Medicaid program.10/ In response to the PAR, Respondent provided additional documentation, which was reviewed by Dr. Jernigan. Based on the review of the additional records Respondent provided, Petitioner issued a FAR, dated August 8, 2016. The FAR determined that Respondent had been paid an overpayment of $4,637.45 ($18.92836735 per claim) for the 245 claims in the 35-recipient sample population. As with the PAR, Petitioner employed the statistical formula for cluster sampling to determine the alleged probable overpayment for the total population of 7,903 claims paid during the Audit Period. This analysis yielded a probable overpayment of $97,121.42, with a 95-percent probability that the actual overpayment is equal to or greater than that amount. Petitioner also sought to impose a fine of $19,424.28 as a sanction for violating Florida Administrative Code Rule 59G- 9.070(7)(e), and to require Respondent to pay $1,708.08 in investigative, legal, and expert witness costs, as authorized by section 409.913(23), Florida Statutes. Subsequent to issuance of the FAR, Petitioner and Respondent conducted a peer-provider meeting. As a result of that meeting, as well as subsequent discussions between the parties, Respondent was afforded several opportunities to submit additional documentation to support his claims. As a result of the documentation Respondent provided, Petitioner has further reduced the alleged overpayment amount to $72,084.43, which is now the amount at issue in this proceeding. Petitioner also seeks to impose a fine consisting of 20 percent of this overpayment amount, or $14,416.89. Additionally, if Petitioner prevails in this proceeding, it seeks to recover its investigative, legal, and expert witness costs. Grounds Stated in FAR for Denial or Reduction of Claims The FAR states four grounds, or "Findings," for Petitioner's determination that Respondent was overpaid by Medicaid for certain medical services he provided, based on cited provisions in the 2008 Florida Medicaid Provider General Handbook ("2008 Handbook"), 2012 Florida Medicaid Provider General Handbook ("2012 Handbook"), 2010 Physician Services Coverage and Limitations Handbook ("2010 Handbook"), 2012 Practitioner Services Coverage and Limitations Handbook, and 2014 Practitioner Services and Limitations Handbook ("2014 Handbook").11/ The FAR does not allege that Respondent committed any Medicaid fraud or abuse in this proceeding. Finding No. 1 Finding No. 1 in the FAR alleges that Respondent provided incomplete records, as defined in the 2008 and 2012 Handbooks, for some claims for which he billed and was paid, such that any payments for which incomplete records were submitted constitutes an overpayment that Petitioner is entitled to recover. The 2008 and 2012 Handbooks, "Provider Responsibility" section, states, in pertinent part: When presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to supervise the provision of, and be responsible for, goods and services claimed to have been provided, to supervise and be responsible for preparation and submission of the claim, and to present a claim that is true and accurate and that is for goods and services that: Have actually been furnished to the recipient by the provider prior to submitting the claim; * * * Are provided in accord with applicable provisions of all Medicaid rules, regulations, handbooks, and policies and in accordance with federal, state and local law; and Are documented by records made at the time the goods or services were provided, demonstrating the medical necessity for the goods or services rendered. Medicaid goods or services are excessive or not medically necessary unless both the medical basis and the specific need for them are fully and properly documented in the recipient’s medical record. The 2008 and 2012 Handbooks, "Requirements for Medical Records" section, states in pertinent part: Medical records must state the necessity for and the extent of services provided. The following requirements may vary according to the service rendered: Description of what was done during the visit; History; Physical assessment; Chief complaint on each visit; Diagnostic tests and results; Diagnosis; Treatment plan, including prescriptions; Medications, supplies, scheduling frequency for follow-up or other services; Progress reports, treatment rendered; The author of each (medical record) entry must be identified and must authenticate his entry by signature, written initials or computer entry; Dates of service; and Referrals to other services. The 2008 and 2012 Handbooks, "Record Keeping Requirement" section, states: Medicaid requires that the provider retain all business records as defined in 59G- 1.010(30) F.A.C., medical-related records as defined in 59G-1.010 (154) F.A.C., and medical records as defined in 59G-1.010 (160) F.A.C. on all services provided to a Medicaid recipient. Records can be kept on paper, magnetic material, film, or other media including electronic storage, except as otherwise required by law or Medicaid requirements. In order to qualify as a basis for reimbursement, the records must be signed and dated at the time of service, or otherwise attested to as appropriate to the media. Rubber stamped signatures must be initialed. The records must be accessible, legible and comprehensible. The 2008 Handbook, "Incomplete Records" section, states that "providers who are not in compliance with the Medicaid documentation and record retention policies described in this chapter may be subject to administrative sanctions and recoupment of Medicaid payments. Medicaid payments for services that lack required documentation or appropriate signatures will be recouped." The 2012 Handbook, "Incomplete or Missing Records" section, similarly states: "Incomplete records are records that lack documentation that all requirements or conditions for service provision have been met. Medicaid shall recover payment for services or goods when the provider has incomplete records or does not provide the records." The following claims, which are in dispute in this proceeding, were denied on the ground stated in Finding No. 1: Recipient 2, claim nos. 2 and 21; Recipient 6, claim nos. 1, 2, 3, and 4; Recipient 8, claim no. 6; Recipient 9, claim no. 4; Recipient 10, claim no. 10; Recipient 13, claim no. 3; Recipient 16, claim nos. 2, 3, 4, 6, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25, 27, 30, 31, 32, 33, 34, 35, 37, 38, 41, 43, 54, and 57; Recipient 18, claim nos. 2, 3, 4, and 5; Recipient 24, claim no. 1; Recipient 33, claim no. 9; Recipient 34, claim nos. 4 and 7; Recipient 35, claim nos. 5 and 6.12/ A total of 47 claims are in dispute on the ground stated in Finding No. 1. Finding No. 2 Finding No. 2 in the FAR alleges that the medical necessity of some services for which Respondent billed and was paid were not supported by the documentation he provided. The 2008 and 2012 Handbooks, in the section titled "Provider Responsibility," state in pertinent part: When presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to supervise the provision of, and be responsible for, goods and services claimed to have been provided, to supervise and be responsible for preparation and submission of the claim, and to present a claim that is true and accurate and that is for goods and services that: * * * Are Medicaid-covered goods or services that are medically necessary[.] Additionally, as noted above, the 2008 and 2012 Handbooks, "Provider Responsibility" section, state, in pertinent part: When presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to supervise the provision of, and be responsible for, goods and services claimed to have been provided, to supervise and be responsible for preparation and submission of the claim, and to present a claim that is true and accurate and that is for goods and services that: * * * Are documented by records made at the time the goods or services were provided, demonstrating the medical necessity for the goods or services rendered. Medicaid goods or services are excessive or not medically necessary unless both the medical basis and the specific need for them are fully and properly documented in the recipient’s medical record. The following claims, which are disputed in this proceeding, were denied on the ground stated in Finding No. 2: Recipient 2, claim nos. 11, 13, 19, and 21; Recipient 16, claim nos. 15, 17, 30, 31, 32, 34, 36, 39, 41, 43, 45, and 47; Recipient 24, claim no. 1; Recipient 34, claim nos. 4 and 7; and Recipient 35, claim no. 4. A total of 20 claims are disputed on the ground stated in Finding No. 2.13/ Finding No. 3 Finding No. 3 in the FAR states that some services that Respondent provided to established patients were billed and paid as having been rendered to new patients. The 2010, 2012, and 2014 Handbooks, "Established Patient Visit" section, defines an "established patient" as "one who has received professional services from a physician or another practitioner of the same specialty who belongs to the same provider group, within the past three years." These Handbooks define a "new patient" as "one who has not received any professional services from a physician or another practitioner of the same specialty who belongs to the same provider group, within the past three years." The following claims, which are disputed in this proceeding, were denied on the ground stated in Finding No. 3: Recipient 21, claim no. 1; Recipient 23, claim no. 1. A total of two claims are disputed on the ground stated in Finding No. 3. Finding No. 4 Finding No. 4 in the FAR states that the level of service for some claims for which Respondent billed and was paid was not supported by the documentation submitted to support the claim. The 2010 Handbook, "Medically Necessary" section, states in pertinent part: Medicaid reimburses for services that are determined medically necessary and do not duplicate another provider’s service. In addition, the services must meet the following criteria: * * * Be individualized, specific, consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the recipient’s needs; * * * Reflect the level of services that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available statewide[.] The 2012 and 2014 Handbooks, "Medical Necessity" section, state in pertinent part: Medicaid reimburses services that are determined medically necessary and do not duplicate another provider’s service. Rule 59G-1.010 (166), F.A.C. defines "medically necessary" or "medical necessity" as follows: The medical or allied care, goods, or services furnished or ordered must: (a) Meet the following conditions: * * * 2. Be individualized, specific, and consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the patient’s needs. * * * 4. Reflect the level of services that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available statewide. The following claims, which are disputed in this proceeding, were denied on the ground stated in Finding No. 4: Recipient 8, claim no. 4; Recipient 9, claim no. 2; Recipient 10, claim no. 3; Recipient 13, claim no. 1; Recipient 16, claim nos. 29, and 52; Recipient 17, claim no. 1; Recipient 21, claim no. 2; Recipient 22, claim no. 2; Recipient 30, claim no. 3; Recipient 32, claim no. 2; Recipient 35, claim no. 1. A total of 12 claims are disputed on the ground stated in Finding No. 4. In sum, a total of 69 claims are disputed on the grounds set forth in Finding Nos. 1 through 4. Medical Record-Keeping Purpose and Requirements Medical records should consist of a simple, complete, organized record that documents the patient's medical condition, needs, and the medical services rendered, so that the physician preparing the record, as well as any other physician——whether or not familiar with the patient or the record-keeping system, including an electronic health record ("EHR" system) used——is able to follow the patient's course of health and treatment. Additionally, medical records must be sufficiently complete and clear for purposes of billing, and in the case of Medicaid, for payment. For claims for services provided to Medicaid recipients to be payable under the Medicaid program, the medical records must meet the requirements set forth in the pertinent Medicaid Handbooks. As discussed above, among these requirements are that the records be true and accurate; demonstrate the medical necessity of, and level of service for, the services provided; contain certain specified components, such as a description of what was done during the visit, the patient's medical history, physical assessment of the patient, the patient's chief complaint on a particular visit, diagnosis, and treatment plan; and be comprehensible, individualized, specific, and consistent with the symptoms or confirmed diagnosis of the illness or injury treated. Dr. Jernigan opined, persuasively, that in the medical context, the term "comprehensible" means that the medical records are sufficiently intelligible and understandable such that another physician or other medically-trained individual could read the record and have a solid picture of the patient's medical history and general condition, as well as the treating physician's specific physical findings and reasons why a particular treatment or service was provided to the patient. Dr. Jernigan testified, credibly and persuasively, that when a medical record contains conflicting or inconsistent information, it is incomprehensible. If the medical record is incomprehensible, it cannot be determined to support the billed service, in which case, the claim for that service must be adjusted or denied. The Intergy EHR System During the Audit Period, Respondent used the "Intergy" EHR system to prepare and keep his medical records for his patients, including the Medicaid recipients he treated and whose claims he billed under the Medicaid program. Dr. Jernigan does not use the Intergy EHR system in her own practice. However, the components of the Intergy EHR system are the same or similar to the components of other commonly-used EHR systems with which she is familiar.14/ Dr. Jernigan explained the purpose of each component of the Intergy EHR template used to compile the medical records for a patient. The purpose of the first component of the Intergy template, "Reason for Visit," is to document the reason why the patient is seeking medical services. The second component, "History of Present Illness," serves to provide a chronological description of the issues surrounding the patient's chief complaint and the reason for the visit. In essence, this portion of the medical record documents the commencement of the patient's medical complaint; the length of time the patient has experienced that condition; its progression; effective and ineffective treatments; the specific location of the condition on or in the patient's body, including whether it is on the left or right side of the body, or both; and other information regarding the temporal and physical aspects of the patient's medical condition. The purpose of the "Past Medical/Surgical History" component is to document the patient's past medical or surgical history relative to the patient's current condition at the time of the particular visit. The purpose of the "Social History" component is to document the patient's social history or habits as related to the patient's medical condition presented at the visit.15/ The "Family History" component is to enable the provider to document any family history that may be relevant to diagnosing and treating the patient's condition.16/ The purpose of the "Review of Systems" component is to document the patient's medical condition at the time of the visit. This component includes a review of body systems involved in the patient's complaint, to determine and document whether there may be other health issues that could present with the same symptoms. This component enables the provider to document relevant information regarding the involvement of other body systems that may affect the diagnosis or treatment for the primary complaint or reason for a particular visit. The "Physical Findings" component is the portion of the medical record in which the provider documents the information regarding his or her findings resulting from a physical examination of the patient. The "Assessment" component is where the provider documents his or her conclusion, or diagnosis, as to the nature, identity, or cause of the patient's condition. The "Therapy" component enables the provider to describe and document the chosen course of treatment for the patient. The "Counseling/Education" component enables the provider to describe and document the matters discussed with the patient, such as the nature of the patient's medical condition and prognosis, the provider's chosen course of treatment or therapy, recommendations regarding the patient's actions to assist in treating the condition, and instructions provided to the patient. The "Plan" component describes the course of treatment for the medical condition and the reasons for choosing this course of treatment. The "Practice Management" component is included to implement certain meaningful use regulatory requirements. The Intergy EHR system has time-saving features, such as a "carry-forward" feature, which allows patient information from previous visits to be "carried forward," or copied and pasted, into the records for subsequent visits. Dr. Jernigan opined, credibly, that although the "carry-forward" feature is convenient, improper use or overuse of this feature can result in the records for a patient's subsequent visits containing all of the information from previous visits, rather than only the information pertinent to the particular subsequent visit. This may render the medical records outdated and inaccurate with respect to the patient's medical condition in subsequent visits. Additionally, carrying forward information from previous visits can render the records for subsequent visits incomprehensible, in that the patient's reason for that particular visit, the symptoms exhibited at that visit, and the specific treatment provided in that visit cannot be determined from the mass of comprehensive information that was carried forward from previous visits and included in the record for that particular visit. Here, the competent, credible evidence shows that Respondent was not trained in, and experienced difficulty in using, the Intergy EHR system. The competent, credible evidence shows that Respondent frequently used Intergy's "carry-forward" feature in preparing his medical records, and this was the likely cause for many of the records for his Medicaid patients including extensive carried-forward information from visit to visit——to the point that in numerous cases, it was difficult to identify which, if any, additional medical conditions, physical findings, treatments, or other services were provided to patients in their subsequent visits. The competent, credible evidence also shows that the Intergy EHR system has numerous flaws that render it difficult to use and not optimally functional in producing electronic medical records that are sufficiently accurate or comprehensible to be used for Medicaid billing purposes. As a result of the Intergy EHR system's flaws, as well as Respondent's apparent overuse of the system's "carry-forward" feature, his medical records were, in many cases, redundant, outdated, contradictory, and inaccurate with regard to documenting a patient's medical condition, physical findings, treatment, basis for services provided, and other key information for a particular visit. This rendered those records untrue, inaccurate, and incomprehensible, and, therefore, not in compliance with the Handbooks' requirements regarding documentation of services sufficient to support billed claims. Overpayment Determinations Rather than presenting evidence on each of the 69 total claims denied or adjusted on the grounds stated in Finding Nos. 1 through 4, the parties presented testimony and related evidence on selected representative claims for each Finding. The parties stipulated, with respect to Finding Nos. 1, 2, and 4, that Dr. Jernigan's analysis of Respondent's medical records, and her opinions regarding whether those records complied with the pertinent standards in the Medicaid Handbooks for payment purposes, applied to all claims for which the grounds in a particular Finding were cited as the basis for denial or modification of payment of that claim. It is important to note that Petitioner did not stipulate to the correctness of Dr. Jernigan's analyses and opinions——only that her analyses and opinions applied to all of the disputed claims denied on the grounds set forth in Finding Nos. 1, 2, and 4 in the FAR. Due to the small number of claims (two) that were denied or adjusted on the grounds cited in Finding No. 3, the parties presented testimony on each of those claims. Finding No. 1 – Insufficient Documentation to Support Claim For Finding No. 1, Dr. Jernigan testified, and Petitioner presented related evidence on, the following representative claims: Recipient 6, claim nos. 1 through 4; Recipient 8, claim no. 6; Recipient 16, claim nos. 3, 6, 15, 18, and 21. Recipient 6 Claim No. 1 Based on Dr. Jernigan's review, Petitioner denied Recipient 6, claim no. 1, for services provided by Respondent on February 29, 2012, on the basis of insufficient documentation to support the claim. The Reason for Visit noted that the patient was visiting due to "increased pains," but the documentation did not describe the location or nature of the pain, so was incomplete. The History of Present Illness component for this claim consisted of a bullet-point list of complaints, rather than a discussion of the development of those complaints over time. Additionally, this component contained incomplete and contradictory information. Specifically, this component contained a notation stating that the patient was suffering from hand pain and a range of other joint pain, without specifying which hand and joints (i.e., on the right side, left side, or both sides of the body) were painful. Additionally, the notation stated "no musculoskeletal symptoms," which conflicts with the notations regarding the existence of hand and other joint pain. The Review of Systems component for this claim also contained conflicting or contradictory notations. For example, there were conflicting descriptions of the patient's state of malaise, and conflicting notations documenting both the presence and the absence of night sweats. The Physical Findings component for this claim also contained contradictions and insufficient information. For example, the notations state both "wheezing was heard" and "no wheezing was heard"; that vomiting was observed and that the patient is to call the provider if vomiting develops; and that muscle spasms and tenderness in the back, as well as numerous trigger points, were observed, but that there was an overall finding of "normal" for the musculoskeletal system. Further, the notes did not identify whether these findings applied to the left or right side of the body, or both. The Assessment component consisted of a wide-ranging list of conditions, likely due to the carry-forward of all or much of the information from previous visits. Many of the conditions listed in this component were not supported by the information recorded in the History of Present Illness, Review of Systems, or Physical Findings components. For example, the assessment states that the patient suffers from hyperlipidemia, testicular dysfunction, viral syndrome, and upper respiratory infection, none of which are sufficiently supported by the information documented in any other component in the patient's medical history. The Therapy component states that Respondent provided pain management counseling and pain management by medication; however, the medication prescribed for the patient was not identified or documented in the medical record. The Counseling/Education component lists numerous matters on which counseling ostensibly was provided, including use of tobacco, alcohol, and illicit drugs, none of which were supported by any findings or notations in the patient's medical record. The Plan component for this claim diagnoses the patient as suffering from impotence of organic origin and suggests referring the patient to a urologist. Dr. Jernigan credibly testified that this diagnosis is not supported by the information documented in the other components of the patient's medical record, thus highlighting the point that if this diagnosis is accurate, the medical records for this claim are incomplete because they do not sufficiently document the basis for this diagnosis and course of treatment. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 1 for Recipient 6 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, thus, were incomplete and incomprehensible. Dr. Jernigan credibly and persuasively opined that as a result of these deficiencies, the medical records submitted to support claim no. 1 for Recipient 6 did not comply with the pertinent standards in the Handbooks. Based on the foregoing, it is determined that claim no. 1 for Recipient 6 should be denied. Claim No. 2 Claim no. 2 is a follow-up visit for the same patient that took place on August 3, 2012. Dr. Jernigan credibly testified, and a review of the medical record for that visit confirms, that the documentation for this claim suffers from most of the same deficiencies as did the documentation for claim no. 1. Specifically, the Reason for Visit was incomplete because it failed to document and describe the location or nature of the "increased pains." The History of Present Illness component consisted of the carried-forward information recorded in that EHR component for the previous visit, and, as such, suffered from the same deficiencies. Specifically, it did not provide a chronological history of the presentation of the medical condition or its progression or treatment, but instead contained the same series of descriptive bullet points. Further, as previously discussed, several of the conditions described in these bullet points were contradictory. The Review of Systems component also appeared to carry-forward the same information contained in the same component from the previous visit, so suffers from the same deficiencies. Additionally, this component is inaccurate because it did not accurately reflect the patient's current medical condition at the time of the follow-up visit. The Physical Findings component also contained mostly carried-forward information from the same component in the record of this patient's previous visit, so contained the same inconsistencies and contradictions as the records submitted in support of claim no. 1. The Assessment component also appeared to be a carry- forward of all or much of the information from the previous visit, so it also suffered from the same deficiencies as the Assessment for claim no. 1. As discussed in detail above, many conditions listed in this component were not supported by the information documented in the other components of the medical record. In the Plan component for this claim, the urological diagnosis was deleted; however, the Plan did not specifically address or prescribe any treatments specific to the medical conditions identified in other components of the medical record for this visit. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 2 for Recipient 6 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, thus, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that as a result of these deficiencies, the medical records submitted to support claim no. 2 for Recipient 6 did not comply with the pertinent standards in the Handbooks. Based on the foregoing, it is determined that claim no. 2 for Recipient 6 should be denied. Claim No. 3 Claim no. 3 is a follow-up visit for Recipient 6 that took place on August 15, 2012. Dr. Jernigan credibly testified, and a review of the medical record for that visit confirms, that the documentation for this claim suffers from several of the same deficiencies as did the documentation for claim nos. 1 and 2. The Reason for Visit component for this claim was incomplete because although it referenced that one of the reasons for the visit was a "medication refill," the medical record for this visit did not contain any documentation regarding the medication prescription being refilled. Additionally, as before, this component did not document and describe the location or nature of the "increased pains" also listed as a reason for the visit. As before, the History of Present Illness component consisted of carried-forward information, so continued to suffer from some of the previously discussed deficiencies. This component did not provide a chronological history of the presentation of the medical condition or its progression or treatment, but instead consisted of a series of descriptive bullet points, some of which contained contradictory information. The Review of Symptoms component also appeared to consist mostly of carried-forward information that contained the same contradictory information as with the previous claims. In addition, new contradictory provisions documented the presence of "no sore throat" and "[s]ore throat," "no cough" and "cough causing vomiting," and "[a]nxiety" and "[n]o anxiety." The Physical Findings component also contained carried-forward information from the same component in the record of this patient's previous visit, so some of the previous contradictions in the notations, such as "wheezing was heard" and "no wheezing was heard," continued to be included. Additionally, the record still did not identify the specific location——i.e., left or right side of the body——of the musculoskeletal and neurological conditions noted, so was incomplete. The Assessment component also appeared to be a carry- forward of all or much of the information from the previous visit, so suffered from the same deficiencies as the Assessment for claim nos. 1 and 2. As discussed above, many conditions listed in this component were not supported by the information documented in the other components of the medical record. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 3 for Recipient 6 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, thus, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 3 for Recipient 6 did not comply with the pertinent standards in the Handbooks. Based on the foregoing, it is determined that claim no. 3 for Recipient 6 should be denied. Claim No. 4 Claim no. 4 is a follow-up visit for Recipient 6 that took place on November 21, 2012. Dr. Jernigan credibly testified, and a review of the medical record for that visit confirmed, that the documentation for this claim suffered from several of the same deficiencies as claim nos. 1, 2, and 3. The Reason for Visit component for this claim was incomplete because although it referenced that one of the reasons for the visit was a "medication refill," the medical record for this visit did not contain any documentation regarding the medication prescription being refilled. This component also failed to describe the location or nature of the "increased pains" that are listed as a reason for the visit. As before, the History of Present Illness component consisted of the carried-forward information, so continued to suffer from some of the previously discussed deficiencies. As before, this component did not provide a chronological history of the presentation of the medical condition or its progression or treatment, but instead consisted of a series of descriptive bullet points. New information regarding the patient's self- monitoring of blood glucose was added, but the blood glucose levels observed at various times of the day were not listed, rendering this notation incomplete. Additionally, this component continued to be incomplete due to lack of information regarding precise location of musculoskeletal and neurologic conditions. The Current Medication component, added into the medical records for this patient on this follow-up visit, was incomplete because it did not list the medications the patient is taking. The Review of Symptoms component also appeared to consist mostly of carried-forward information that contained the same contradictory information as with the previous claims. In addition, new contradictory provisions documented the presence of "no sore throat" and "[s]ore throat," "no cough" and "cough causing vomiting," and "[a]nxiety" and "[n]o anxiety." The Past Medical/Surgical History component stated "Pediatric: Failure to thrive." Because this patient is a 73-year-old adult rather than a pediatric patient, this information is inaccurate. As before, the Review of Symptoms component contained carried-forward information from this patient's previous visits, so perpetuated contradictions previously noted, such as "night sweats" and "no night sweats," and "no wheezing" and "wheezing worse during upper respiratory infection." The Physical Findings component still did not identify the specific location—i.e., left or right side of the body——of the musculoskeletal and neurological conditions noted. Additionally, necessary information, such as vital signs and lab testing results, was not documented. The Assessment component again appeared to be a carry- forward of all or much of the information from the previous visit, so suffered from the same deficiencies as the Assessment for claim nos. 1, 2, and 3. As previously discussed, many conditions listed in this component, such as "adult failure to thrive," "vascular dementia," and "chronic fatigue syndrome," were not supported by the information documented in the other components of the medical records. The Therapy Component noted that the patient's pain was being managed by medication, but there was no notation regarding the type of medication prescribed. Additionally, the patient was directed to perform a "self-examination" with no detail regarding what part of the body was to be examined, and the "addiction counseling" notation was unsupported by any other mention of addiction in the medical record. The Counseling/Education component continued to contain extensive carried-forward information, and also contained an extensive list of newly-added counseling notations that were not supported by other components of the medical record. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 4 for Recipient 6 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 4 for Recipient 6 did not comply with the pertinent standards in the Handbooks. Accordingly, it is determined that claim no. 4 for Recipient 6 should be denied. Recipient 8 Claim No. 6 Based on Dr. Jernigan's review, Petitioner denied Recipient 8, claim no. 6, for services provided by Respondent on February 29, 2012, on the basis of insufficient documentation. Dr. Jernigan noted that much of the medical record for this visit appeared to be an exact carry-forward from the previous visit, so did not specifically address or reflect the patient's current condition at the time of her follow-up visit. Additionally, several of the components for this visit contained contradictory or clearly inaccurate information. She noted that when inconsistencies are repeated in medical records, it is very difficult to determine the patient's condition or course of treatment for a particular visit. Here, the History of Illness was again a bullet-point list of symptoms or conditions, rather than a chronological narrative of the patient's medical condition presented for this visit. Additionally, although one of the stated reasons for this visit was "infected hands after burns," this component contained the contradictory statement "no skin symptoms." Further, in the Past Medical/Surgical component, it is noted "Pediatric: Failure to thrive." Because the patient is an adult, this was an inaccurate notation in the record. The Social History component stated in part: "Abuse and Neglect: Receiving insufficient liquids and abandonment which resulted in hunger or thirst." Dr. Jernigan opined that this statement was inconsistent with the fact that the patient is obese. The Functional component describes the patient as "unable to lift more than" and "unable to drive more than," but did not contain a complete description of these limitations from which the patient suffered. Additionally, the statements "able to walk" and "difficulty walking unassisted" appeared to be contradictory. The Review of Systems also contained several contradictory statements. Specifically, the Reason for Visit component stated that one of the reasons for this visit was "infected hands after burns," but the Review of Symptoms component stated that the patient exhibited "no skin lesions." Additionally, this component stated that the patient exhibited "no polydipsia" and "polydipsia," "vertigo" and "no vertigo," and "no sensory disturbance" and "tingling of the hands and feet, a burning sensation, and numbness of the hands and feet (distal)." The Physical Findings also contained contradictory and incomplete information. For example, the stance and gait were shown as being both "abnormal" and "normal." Further, the description of the burns on the patient's hands did not specify whether they were first-, second-, or third-degree burns, and although her hands were burned, the skin was described as "general appearance was normal" and having "no skin lesions." The Assessment consisted of an extensive list of conditions, many of which were unsupported by the Review of Systems and Physical Findings components. The Therapy component consisted of an extensive list of items, many of which were unsupported by information in the other components of the medical record. For example, addiction counseling for alcohol and opioids is noted, but there was no information documenting addiction to these substances in other parts of the medical record. Additionally, "psychoactive medication management" was listed as a therapeutic item, but the specific medication was not identified and the other components did not support this therapy. Similarly, "pain management by medication" was listed, but the specific medication was not identified. "Education and instructions" also was listed but there was no description of the specific subjects. The Counseling/Education component consisted of an extensive list of subjects about which the patient ostensibly was counseled or education on this visit, but most of them were unsupported by the information in the other components of the medical record for this visit. Dr. Jernigan noted that it appeared that the EHR system "dumped" a laundry list of unrelated items into the notes for this component, making it difficult to know precisely what type of counseling and education was actually provided for this visit. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 6 for Recipient 8 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 6 for Recipient 8 did not comply with the pertinent standards in the Handbooks. Accordingly, it is determined that claim no. 6 for Recipient 8 should be denied. Recipient 16 Recipient 16 was a young male patient. During the Audit Period, this patient had numerous visits to Respondent, resulting in a total of 59 claims. Of those, 33 are in dispute in this proceeding. Dr. Jernigan testified about claim nos. 3, 6, 15, 18, and 21 as representative of her analysis and opinions regarding claims denied or adjusted pursuant to the grounds stated in Finding No. 1. Claim No. 3 Dr. Jernigan again noted incomplete documentation and inconsistencies with respect to the notations in the various components of the medical record for this claim. Specifically, she noted that in the Social History, there is a notation of "Abuse and neglect: Receiving insufficient liquids and abandonment which resulted in hunger or thirst," but this notation was not consistent with or supported by the information in the other components of the medical record for this visit. In the Review of Symptoms component, there was an inconsistent notation of "earache" and "no earache." In the Physical Findings component, no vital signs were recorded, rendering the medical record incomplete. Additionally, there were several inconsistent observations documented, including a notation of "no distress," notwithstanding that "vomiting was observed." The Assessment component contained extensive carried- forward information from previous visits, rendering that information inaccurate with respect to this particular visit. Additionally, the medications of Phenergan and Bentyl IM apparently were administered, but no dosage was documented. The Counseling/Education component listed subjects about which the patient ostensibly was counseled, such as tobacco, alcohol, and illicit drug use, but these items were not supported by information in the Social History component or in other components in the medical record for this visit. Ultimately, Dr. Jernigan determined that this claim, which was for an injection to treat nausea with vomiting, should be denied because no dosage for the injected medication was provided, as required by the Handbooks for the claim to be payable. Accordingly, it is determined that claim no. 3 for Recipient 16 should be denied. Claim No. 6 Although the Reason for Visit component referred to test results, the types of tests and results thereof were not addressed or otherwise documented in the medical record for this visit. The History of Present Illness again was presented in a bullet-point list, rather than a chronological narrative of the patient's medical condition and its progression and treatment. There was no information regarding when or for how long the list of conditions existed, or whether they existed at the time of this specific visit. The notation in the Physical Findings that there was "no nasal discharge seen" and "no sinus tenderness" was inconsistent with the Review of Symptoms notations documenting the presence of sinus pain and nasal discharge, and the notation that the oropharynx was "abnormal" and "inflamed" was inconsistent with the notation that it also was "normal." The Counseling/Education component notations stated that the patient again was counseled about tobacco, alcohol, and illicit drug use, but as before, there was no information in the other components to support this counseling for this visit. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 6 for Recipient 16 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 6 for Recipient 8 did not comply with the pertinent standards in the Handbooks. Accordingly, claim no. 6 for Recipient 16 should be denied. Claim No. 15 The Reason for Visit component for this claim did not address the reason for the patient's visit or identify the test results that would be reviewed during that visit. As with previous claims, the History of Illness component for this visit was a bullet-point list of symptoms rather than a chronological narrative of the patient's condition. Additionally, it contained contradictory information regarding the presence or absence of pulmonary symptoms. The Review of Systems component for this visit contained multiple contradictions similar to those noted in the previous claims for this patient. Specifically, there were contradictory notations regarding the presence of "neck pain" and "no neck pain," the presence of "neck stiffness" and "no neck stiffness," the presence of "sore throat" and "no sore throat," and the presence of "localized joint stiffness" and "no localized joint stiffness." The Physical Findings component lacked information regarding the patient's vital signs, and contained contradictory notations regarding normal and abnormal breath sounds and the presence and absence of wheezing. The Assessment component contained extensive information that was unsupported by information documented in the other components of the medical record for this visit. Moreover, this patient had been documented in a previous visit as weighing 168 pounds and suffering abuse and neglect resulting in hunger or thirst, so the notation that he was at risk for obesity hypoventilation syndrome appeared inaccurate and inconsistent with his previously documented condition. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 15 for Recipient 16 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 15 for Recipient 16 did not comply with the pertinent standards in the Handbooks. Accordingly, claim no. 15 for Recipient 16 should be denied. Claim No. 18 As with the medical records for previous claims, the Reason for Visit component for this claim lacked key information, such as information regarding the reason for the visit and the test results to be reviewed. The History of Illness component once again consisted of a bullet list of observed conditions, rather than a chronological narrative of the history of the patient's condition, its progression, and its response or lack of response to treatments. The Review of Systems contained many of the previously noted inconsistencies regarding the presence and absence of neck pain and stiffness and presence and absence of sore throat. Additionally, this component contained the contradictory notations of "heartburn" and "no heartburn." The Physical Findings component of this visit also contained many of the same contradictions as noted for previous claims for this patient. Specifically, there was a notation of normal and abnormal pharynx, normal and abnormal lungs, the presence of wheezing and absence of wheezing, and the presence of both an abnormal and normal gait. The Assessment component again consisted of an extensive list of conditions, many of which were not supported by information documented in the other components for this medical record. The Plan component was non-specific and did not address any of the diagnoses listed in the Assessment component. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 18 for Recipient 16 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 18 for Recipient 16 did not comply with the pertinent standards in the Handbooks. Accordingly, claim no. 18 for Recipient 16 should be denied. Claim No. 21 Claim no. 21 for Recipient 16 suffered from many of the same deficiencies as previously identified for other claims for this patient. The Reason for Visit component did not specifically identify the reason for this particular visit, and the laboratory test results to be reviewed were not identified. The History of Present Illness component consisted of a bullet-point list, rather than a chronological narrative, and it did not discuss the history and progression of the patient's condition and response or lack of response to treatment. Additionally, it contained the same or similar contradictory statements as were previously discussed with respect to this component for other claims for this patient. The Review of Symptoms component contained many of the same contradictions previously noted with respect to other claims for this recipient. Specifically, "no facial pain" and "facial pain and sinus pain," "neck pain" and "no neck pain," "no sore throat" and "sore throat," "heartburn" and "no heartburn," and "dizziness" and "no dizziness" were noted in this component. The Physical Findings component also contained contradictory information, such as abnormal and normal orolarynx, wheezing and no wheezing being heard, and abnormal and normal gait and stance. The Assessment component again appeared to be a carried-forward list of numerous conditions, such as acne, anemia, arthropathy, fatigue, thyroid issues, and obesity that were not supported by documentation in the other components of the medical record for this visit. The Plan was non-specific and did not address the diagnosed conditions listed in the Assessment component. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 21 for Recipient 16 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 21 for Recipient 16 did not comply with the pertinent standards in the Handbooks. Accordingly, claim no. 21 for Recipient 16 should be denied. Summary of Grounds for Denial of Claims Under Finding No. 1 Dr. Jernigan's overall assessment of the claims denied on the basis of Finding No. 1 was that Respondent's documentation was not sufficiently clear and accurate to enable a reviewer to discern the reason for a particular patient visit; the symptoms presenting for a particular visit; the nature, history, and progression of the medical condition; the diagnosis or determination of the medical condition; the treatment; or the therapy and counseling provided to address the medical condition. In particular, the frequent lack of key details, such as the patient's vital signs, and the frequent and pervasive contradictions in many of the components of the records rendered them inaccurate, unreliable, and essentially useless in determining the nature of the patient's condition, treating the patient's condition, and documenting that treatment for payment purposes. Additionally, the diagnoses documented in the Assessments component were rarely well-supported by accurately documented information in the other components, and appeared to be more a "basketful of therapies" that were not specific to the patient and not supported by other information documented in the rest of the medical record. As Dr. Jernigan put it, "if I was looking at [the medical record for] that specific patient, I would have nothing that would be helpful to me." Dr. Jernigan testified, credibly and persuasively, that the frequent and pervasive inconsistencies in Respondent's records rendered them untrue, inaccurate, and incomprehensible. The undersigned finds Dr. Jernigan's analysis and opinions regarding the claims denied on the basis of no documentation or incomplete documentation to be credible, accurate, and supported by the documentary and other evidence in the record. Pursuant to the parties' stipulation noted above, the undersigned has applied this analysis in reviewing each of the other claims disputed on the basis of Finding No. 1. The following table sets forth the undersigned's determination of overpayment, based on a review of each claim, for the claims disputed on the basis of Finding No. 1. Finding No. 1: No Documentation or Incomplete Documentation Recipient No. Claim No. Procedure Code Action Determined Overpayment Amount $ 2 2 99212 Deny 48.56 2 21 99213 Deny 77.34 6 1 99214 Deny 39.46 6 2 99214 Deny 39.46 6 3 99214 Deny 39.46 6 4 99214 Deny 39.46 8 6 99213 Deny 79.34 9 4 99214 Deny 48.27 10 10 93000 Deny 9.67 13 3 99213 Deny 83.35 16 2 J2550 Deny 2.05 16 3 96372 Deny 12.42 16 4 93672 Deny 12.42 16 6 99214 Deny 48.27 16 15 99214 Deny 48.27 16 16 99372 Deny 12.42 16 17 99214 Deny 48.27 16 18 99214 Deny 48.27 16 19 96372 Deny 12.42 16 21 99214 Deny 48.27 16 22 96372 Deny 13.43 16 23 99214 Deny 48.27 16 24 96372 Deny 13.43 16 25 99214 Deny 48.27 16 27 99214 Deny 48.27 16 30 99213 Deny 83.35 16 31 99213 Deny 83.35 16 32 99211 Deny 23.06 16 33 96372 Deny 13.43 16 34 99212 Deny 50.56 16 35 96372 Deny 13.43 16 37 96372 Deny 13.43 16 38 99213 Deny 83.35 16 41 99212 Deny 50.56 16 43 99212 Deny 50.56 16 54 99212 Deny 50.56 16 57 96372 Deny 14.14 18 2 J0969 Deny 2.00 18 3 96372 Deny 12.42 18 4 J1100 Deny 0.15 18 5 96372 Deny 14.42 24 1 99213 Deny 79.34 33 9 99213 Deny 77.34 34 4 99214 Deny 39.46 34 7 88150 Deny 10.00 35 5 99214 Deny 39.46 35 6 99214 Deny 39.46 Total Recipients: 12 Total Claims: 47 Determined Total Overpayment Amount: $1,810.95 Finding No. 2 – Services Provided Not Medically Necessary For Finding No. 2, Dr. Jernigan testified, and Petitioner presented related evidence on, the following representative claims: Recipient 2, claim nos. 11, 13, and 19; Recipient 16, claim nos. 15, 17, and 30; and Recipient 34, claim no. 7. However, because claim nos. 15, 17, and 30 are being denied in this Recommended Order on the basis of Finding No. 1, they are not addressed in this discussion of claims denied on the basis of Finding No. 2, and they are not counted toward the amount of reimbursement determined in this Recommended Order to be owed. Additionally, because the following claims previously have been denied in this Recommended Order on the basis of Finding No. 1, they have not been counted toward determining the overpayment amount for claims denied on the basis of Finding No. 217/: Recipient 2, claim no. 21; Recipient 16, claim nos. 15, 17, 30, 31, 32, 34, 41, and 43; Recipient 24, claim no. 1; and Recipient 34, claim nos. 4 and 7. Accordingly, a total of eight claims in dispute on the basis of Finding No. 2 have been addressed in this Recommended Order. The CPT Codes The 2012, 2013, and 2014 versions of the Current Procedural Terminology manuals (collectively, "CPT Manuals") establish the CPT Codes that apply in billing services to Medicaid.18/ The following CPT Codes are pertinent to the claims denied on the basis set forth in Finding No. 2: 99211, 99212, 99213, and 99214. These CPT Codes indicate a progressive increase in the complexity of the medical visit, so require progressively greater levels of documentation to justify billing Medicaid for the service. Dr. Jernigan regularly bills Medicaid for services she provides using these CPT Codes. She is very familiar with their use and with the nature of the medical services that are appropriately billed under each code. CPT Code 99211 The CPT Manuals define CPT Code 99211 as: "Office or other outpatient visit for the evaluation and management of an established patient, that may not require the presence of a physician. Usually, the presenting problem(s) are minimal. Typically, 5 minutes are spent performing or supervising these services." CPT Code 99212 The CPT Manuals define CPT Code 99212 as: Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these 3 components: A problem focused history; A problem focused examination; Straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are self[-]limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family. CPT Code 99213 The CPT Manuals define CPT Code 99213 as: Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these 3 key components: An expanded problem focused history; An expanded problem focused examination; Medical decision making of low complexity. Counseling and coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of low to moderate severity. Physicians typically spend 15 minutes face-to-face with the patient and/or family. CPT Code 99214 The CPT Manuals define CPT Code 99214 as: Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these 3 key components: A detailed history; A detailed examination; Medical decision making of moderate complexity. Counseling and/or coordination of care with other physicians, other qualified health care professionals, or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Typically, 25 minutes are spent face-to-face with the patient and/or family. In determining whether a service provided is medically necessary for purposes of Medicaid billing, the focus is on whether there is sufficient documentation to support the necessity of the service provided to the patient. The documentation submitted to support a claim is reviewed to determine whether there is sufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided, and to justify the need for the service provided. A. Recipient 2 Claim No. 11 Dr. Jernigan denied this claim as not medically necessary because the medical record for this visit did not contain sufficient information linking the patient's condition with the diagnosis and treatment. Specifically, while the patient presented with conditions that may indicate a urinary tract infection or pelvic inflammatory disease, those diagnoses were only two in a list of 32 assessments, so the record did not clearly indicate the specific diagnosis for her condition at this specific visit. Further, the treatment consisted of a topical medication used to treat arthritis and a medication used to treat painful menstruation, rather than a medication used to treat a urinary tract infection or pelvic inflammatory disease. Thus, Dr. Jernigan determined that there was insufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided. Accordingly, she determined that the service provided was not medically necessary, so the claim should be denied. Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to demonstrate that the service was medically necessary were credible, supported by the evidence, and persuasive. Accordingly, claim no. 11 for Recipient 2 should be denied on the basis that it was not documented as being medically necessary. Claim No. 13 Dr. Jernigan denied this claim as not medically necessary because the medical record for this visit did not contain sufficient information linking the patient's condition with the diagnosis and treatment. Specifically, there were no physical examination findings that appeared to be specifically related either to the patient's condition at that visit, or to the treatment provided. For example, Dr. Jernigan specifically noted that while there was an assessment of vulvodynia and the patient was treated for a yeast infection, the medical record does not note an examination of the patient's genitalia having been performed to support that assessment and treatment. Thus, Dr. Jernigan determined that there was insufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided. Accordingly, she determined that the service provided was not medically necessary, so the claim should be denied. Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to demonstrate that the service was medically necessary were credible, supported by the evidence, and persuasive. Accordingly, claim no. 13 for Recipient 2 should be denied on the basis that it was not documented as being medically necessary. Claim No. 19 Dr. Jernigan denied this claim as not medically necessary because the medical record for this visit did not contain sufficient information linking the patient's condition with the diagnosis and treatment. Here, the stated reason for the visit included fatigue, somnolence and weakness with problems sleeping, arthralgias with muscle pain and tenderness, headache and dizziness, and snoring with acid reflux. However, the assessment contained a list of 33 diagnoses, many, if not most, of which did not appear to be related to the stated reason for the visit. Additionally, the treatment did not appear appropriate for the conditions stated as the reason for this specific visit. Thus, Dr. Jernigan determined that there was insufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided. Accordingly, she determined that the service provided was not medically necessary, so the claim should be denied. Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to demonstrate that the service was medically necessary were credible, supported by the evidence, and persuasive. Accordingly, claim no. 19 for Recipient 2 should be denied on the basis that it was not documented as being medically necessary. Summary of Grounds for Denial of Claims under Finding No. 2 In sum, Dr. Jernigan determined that the claims denied as not medically necessary did not contain sufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided, and to justify the need for the service provided. The undersigned finds Dr. Jernigan's analysis and opinions regarding the claims denied on the basis of no documentation or incomplete documentation to be credible, accurate, and supported by the documentary and other evidence in the record. Pursuant to the parties' stipulation noted above, the undersigned has applied Dr. Jernigan's analysis in reviewing each of the other claims disputed on the basis of Finding No. 2. The following table sets forth the undersigned's determination of overpayment, based on a review of each claim, for the claims disputed on the basis of Finding No. 2. Finding No. 2 – Not Medically Necessary Recipient No. Claim No. Procedure Code Action Determined Overpayment Amount $ 2 11 99213 Deny 81.35 2 13 99213 Deny 81.35 2 19 99213 Deny 77.34 16 36 99211 Deny 23.06 16 39 99212 Deny 50.56 16 45 99212 Deny 50.56 16 47 99211 Deny 23.06 35 4 99214 Deny 39.46 Total Total No. Determined Recipients: of Claims: Total 3 8 Overpayment Amount: $426.74 Finding No. 3 – Established Patients Billed as New Patients As discussed above, a new patient is one who has not received any professional services from a physician or another practitioner of the same specialty who belongs to the same provider group, within the past three years. The two claims in dispute that were denied on the basis set forth in Finding No. 3, that they were not new patients are Recipient 21, claim no. 1; and Recipient 23, claim no. 1. These claims were downcoded to reflect that the patient was an established patient, rather than a new patient. The CPT Codes pertinent to this Finding are 99203, 99204, 99213, and 99214. CPT Codes 99213 and 99214 previously have been defined in the findings pertaining to Finding No. 2, above. CPT Code 99203 The CPT Manuals define CPT Code 99203 as: Office or other outpatient visit for the evaluation and management of a new patient, which requires these 3 key components: A detailed history; A detailed examination; Medicaid decision making of low complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate severity. Physicians typically spend 30 minutes face-to-face with the patient and/or family. CPT Code 99204 The CPT Manuals define CPT Code 99204 as: Office or other outpatient visit for the evaluation and management of a new patient, which requires these 3 key components: A comprehensive history; A comprehensive examination; Medicaid decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 45 minutes face-to-face with the patient and/or family. Recipient 21 Claim No. 1 Recipient 21, claim no. 1 was adjusted from CPT Code 99204 to CPT Code 99214. Dr. Jernigan determined that this claim should be denied because the notations for the Past Medical History, Social History, and Family History state that they are "unchanged." This notation would not be appropriate for a new patient, but would be appropriate for an established patient. Dr. Jernigan noted that had she determined this claim was for a new patient, it would have been denied, rather than adjusted downward, because the supporting documentation did not contain the patient's comprehensive history, which is one of the three components required in the documentation to support a claim billed under CPT Code 99204. Instead of denying this claim, Dr. Jernigan determined that under the documentation submitted, it should be billed under CPT Code 99214, as a claim for an established patient having a medical problem of moderate to high severity, and for which two of the three components are documented in the medical record. Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to support billing the claim as one for a new patient, but would support billing the claim as one for an established patient, was credible, supported by the evidence, and persuasive. Accordingly, claim no. 1 for Recipient 21 should be billed under CPT Code 99214, rather than CPT Code 99204. Recipient 23 Claim No. 1 Dr. Jernigan determined that this claim should be denied because the notations for the Past Medical History, Social History, and Family History state that they are "unchanged." This notation would not be appropriate for a new patient, but would be appropriate for an established patient. Accordingly, she reviewed the claim as one for an established patient, and, based on the documentation in the medical record, determined that the presented problem was one of low to moderate severity and at least two of the required components were present in the record. For these reasons, Dr. Jernigan determined that this claim should be billed under CPT Code 99213, rather than under CPT Code 99203. Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to support billing the claim as one for a new patient, but would support billing the claim as one for an established patient was credible, supported by the evidence, and persuasive. Accordingly, claim no. 1 for Recipient 23 should be billed under CPT Code 99213, rather than CPT Code 99203. Summary of Grounds for Downcoding Claims Under Finding No. 3 In sum, Dr. Jernigan's determined that the notations in the Past Medical History, Family History, and Social History components of the documentation submitted for these claims, as well as the lack of other components in the record, did not support billing these claims as new patient claims, but would support billing them as established patient claims. The undersigned finds Dr. Jernigan's analysis and opinion regarding the downcoding of these claims to bill them as established, rather than new, patient claims to be credible, accurate, and supported by evidence in the record. The following table sets forth the undersigned's determination of overpayment, based on a review of each claim, for the claims disputed on the basis of Finding No. 3. Finding No. 3 – Incorrectly Billed as New Patient Recipient No. Claim No. Procedure Code Action Determined Overpayment Amount $ 21 1 99204 Adjusted to 99214 25.38 23 1 99203 Adjusted to 99213 37.66 Total Recipients: 2 Total Claims: 2 Determined Total Overpayment Amount: $63.04 Finding No. 4 – Level of Service Not Supported Claims denied on the grounds set forth in Finding No. 4 of the FAR did not contain documentation sufficient to support the higher level of service billed, but did contain documentation sufficient to support a lower level of service than that billed. CPT Codes 99212, 99213, 99214, and 99204 are pertinent to this Finding, and have been previously defined in the findings pertaining to Findings No. 2 and 3, above. As previously noted, CPT Codes 99212, 99213, and 99214 indicate a progressive increase in the complexity of the medical visit, so require progressively greater levels of documentation to justify billing Medicaid for the service. For Finding No. 4, Dr. Jernigan testified, and Petitioner presented related evidence on, the following representative claims: Recipient 8, claim no. 4; Recipient 9, claim no. 2; Recipient 10, claim no. 3; Recipient 13, claim no. 1; and Recipient 16, claim nos. 29 and 52. Recipient 8 Claim No. 4 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99214 to CPT Code 99213. Despite the extensive description in the Reason for Visit component and the extensive list of conditions noted in the Assessment component, the visit ultimately was to address a urinary tract infection, which is a problem of low to moderate complexity and involved the components which would justify billing the claim under CPT Code 99213. Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 4 for Recipient 8 is correctly adjusted from CPT Code 99214 to CPT Code 99213. Recipient 9 Claim No. 2 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99214 to CPT Code 99213. This visit was a follow-up without any significant changes in the findings documented in the components of previous visits. There was no documentation in any of the components for this visit which would indicate that it involved problems that were of moderate to high complexity, and that it entailed components that would justify billing the claim under CPT Code 99214. The documentation for this visit indicated a problem of low to moderate complexity and entailed the components that would justify billing the claim under CPT Code 99213. Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 2 for Recipient 9 is correctly adjusted from CPT Code 99214 to CPT Code 99213. Recipient 10 Claim No. 3 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99214 to CPT Code 99213. This claim entailed extensive internal inconsistencies and contained numerous contradictory notations, which affect the reviewer's ability to determine the purpose of the visit and the appropriate type and level of treatment. Here, Dr. Jernigan opined that this visit ultimately was a follow-up for hypertension and diabetes, and that the patient's condition had not changed from the previous visit. The documentation did not indicate that this visit entailed problems that were of moderate to high complexity, nor did it document the components would justify billing the claim under CPT Code 99214. Rather, the documentation for this visit indicated a problem of low to moderate complexity and involved the components that would justify billing the claim under CPT Code 99213. Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 3 for Recipient 10 is correctly adjusted from CPT Code 99214 to CPT Code 99213. Recipient 13 Claim No. 1 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99204 to CPT Code 99214. The documentation for this claim did not support billing the visit under CPT Code 99204, for a new patient, because it did not contain sufficient information that a comprehensive examination was performed, which is required by this CPT Code. Additionally, the documentation lacked any substantial discussion of the patient's Social History, Family History, or Past Medical History——information that, according to Dr. Jernigan, would be particularly important for a new patient——especially one who, per the documentation in the record, was sexually abused. Further, the Past Medical/Surgical History, Social History, and Family History components all listed this patient's condition as "unchanged," indicating that the patient must have been an established, rather than a new, patient. These deficiencies in the record for this claim did not justify billing the claim under CPT Code 99204, for a new patient. However, due to the severity of the patient's condition, the treatment documented in the record for this visit entailed the components under CPT Code 99214 for an established patient. Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 1 for Recipient 13 is correctly adjusted from CPT Code 99204 to CPT Code 99214. Recipient 16 Claim No. 29 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99214 to CPT Code 99213. Dr. Jernigan found much of the information documented for this claim to be incredible. For example, the patient is a 19-year old male, but the notations in the record state such things as "parental concerns about baby's growth" and "assessment for menopause performed." Dr. Jernigan ultimately determined that this visit was a follow-up to address hypothyroidism and that thyroid medication was prescribed as a treatment for this condition. This visit concerned a problem of low to moderate complexity and involved the components that would justify billing the claim under CPT Code 99213, rather than a more complex problem that would justify the level of service under CPT Code 99214. Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 29 for Recipient 16 is correctly adjusted from CPT Code 99214 to CPT Code 99213. Claim No. 52 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99213 to CPT Code 99212. Here, the Reason for Visit stated that the visit was, among other things, to address a skin rash. Although the documentation for this claim contained numerous inconsistencies, Dr. Jernigan was able to discern that the patient had two dermatological conditions that would support the prescription of Doxycycline. According to Dr. Jernigan, skin issues are relatively easy to see and treat, which would justify billing this claim under CPT Code 99212, for a minor problem that would entail the components for that CPT Code, rather than a more complex problem that would justify the level of service under CPT Code 99213. Dr. Jernigan's analysis and opinion regarding this claim was credible and persuasive. Accordingly, it is determined that claim no. 52 for Recipient 16 is correctly adjusted from CPT Code 99213 to CPT Code 99212. Summary of Grounds for Denial of Claims Under Finding No. 4 Dr. Jernigan's overall assessment of the claims denied on the basis of Finding No. 4 was that while a basis for billing Medicaid could be discerned from the medical records for the claim, the documentation in those records was not consistent with the symptoms or confirmed diagnosis, so did not reflect the level of service that could safely be furnished. The undersigned finds Dr. Jernigan's analysis and opinions regarding the claims denied on the grounds stated in Finding No. 4 to be credible, supported by the evidence, and persuasive. Pursuant to the parties' stipulation noted above, the undersigned has applied this analysis in reviewing each of the other claims disputed on the basis of Finding No. 4. The following table sets forth the undersigned's determination of overpayment, based on a review of each claim, for the claims disputed on the basis of Finding No. 4. Finding No. 4 – Incorrectly Billed at Higher Level of Service Recipient No. Claim No. Procedure Code Action Determined Overpayment Amount $ 8 4 99214 Adjusted to 99213 38.79 9 2 99214 Adjusted to 99213 15.71 10 3 99214 Adjusted to 99213 36.79 13 1 99204 Adjusted to 99214 122.14 16 29 99214 Adjusted to 99213 38.79 16 52 99213 Adjusted to 99212 32.79 17 1 99214 Adjusted to 99213 23.32 21 2 99214 Adjusted to 99213 14.85 22 2 99214 Adjusted to 99213 73.87 30 3 99214 Adjusted to 99213 12.85 32 2 99214 Adjusted to 99213 32.56 35 1 99204 Adjusted to 99202 36.77 Total Recipients: 11 Total Claims: 12 Determined Total Overpayment Amount: $479.23 Findings of Ultimate Fact Pursuant to the foregoing, it is determined that Petitioner proved, by a preponderance of the evidence, that Respondent was overpaid by the Medicaid program for the disputed and undisputed claims in this proceeding. Respondent defends its position that many of the claims in dispute should be adjusted downward in this proceeding, rather than denied, by asserting that the inaccuracies and lack of comprehensibility in the documentation for the claims were due to the flaws and defects in the Intergy EHR system, rather than any deficiency on his part in diagnosing or treating his patients or in properly documenting their visits. In support of this position, Respondent notes that in many cases, the documentation provided to support a claim did contain——among the many listed conditions and assessment——a diagnosis that matched the reason for the visit. There is little question in the undersigned's mind that Respondent actually provided the services in the claims he billed to Medicaid. However, the issue in this proceeding is not whether the provider did, in fact, provide the services or accurately diagnose and treat the patient's condition. Rather, the issue is whether the documentation submitted to Petitioner to support the Medicaid-billed claims is true, accurate, comprehensible, and demonstrates the medical necessity of the billed claim, as required by section 409.913 and the Handbooks. Unfortunately, due to the substantial flaws in the Intergy system and Respondent's difficulty in using that system, his records did not comply with those standards, so do not support the billed claims. As the enrolled Medicaid provider, Respondent is ultimately responsible for the completeness, accuracy, and comprehensibility of the documentation submitted in support of his claims billed to Medicaid. § 409.913(7), Fla. Stat. The Handbooks, section 409.913, and applicable rules do not recognize, as a defense to actions seeking reimbursement for overpayments, that deficiencies in the provider's records may be excused due to poor or dysfunctional EHR systems. Based on the foregoing, the undersigned found Dr. Jernigan's analyses and opinions credible, supported by the competent substantial evidence in the record, and persuasive. Accordingly, it is determined, as a matter of ultimate fact, that Petitioner proved, by a preponderance of the evidence, that Respondent was overpaid by the Medicaid program in the amount of $72,084.43 for the disputed and undisputed claims in this proceeding. However, the undersigned determines that Petitioner did not prove the overpayments by clear and convincing evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner, Agency for Health Care Administration, enter a final order directing Respondent to repay to the Agency the sum of $72,084.43 in overpayments. Pursuant to section 409.913(23)(a), Petitioner, as the prevailing party in this proceeding is, entitled to recover, as costs, all investigative, legal, and expert witness costs as the prevailing party is granted. If the amount of these costs cannot be stipulated by the parties, Petitioner may request a hearing solely to establish the amount of costs it is entitled to recover in this proceeding. DONE AND ENTERED this 12th day of March, 2018, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 2018.
The Issue The issues in this case are whether Respondent violated Subsections 458.331(1)(t) and 458.331(1)(m), Florida Statutes (1995), as alleged in the Administrative Complaint, and, if so, what is the appropriate discipline to impose.
Findings Of Fact The Parties Petitioner is the state agency charged with regulating the practice of medicine in Florida, pursuant to Section 20.43, Florida Statutes, and Chapters 456 and 458, Florida Statutes. Petitioner has contracted with the Agency for Health Care Administration to provide consumer complaint, investigative, and prosecutorial services required by the Division of Medical Quality Assurance pursuant to Section 20.43(3), Florida Statutes. Respondent is a licensed physician in the State of Florida, having been issued License No. ME0053370, and is board- certified in orthopedic surgery. Respondent's medical license has never previously been subject to discipline. The Injury and Treatment On March 3, 1995, Patient D.L., then aged 76, fell off a curb and injured her face and right wrist. She presented to the emergency room at Columbia Northside Medical Center in St. Petersburg, Florida, with severe contusions to her face and an aching wrist. Patient D.L. was evaluated by the emergency room physician, who documented the pertinent medical information, including the physical findings, results of diagnostic x-rays taken of Patient D.L.'s wrist, and the recommended treatment plan. She was diagnosed by the emergency room physician as having severe contusions to her face and a wrist fracture, commonly known as a Colles fracture. The physician applied an air splint to Patient D.L.'s arm, ordered a consult with an orthopedic physician to evaluate it, and admitted her into the hospital for observation. The admitting physician documented an admission note on March 3, 1995, noting a history and physical examination, findings, diagnosis, and treatment plan. At 2:00 on the following day, Respondent and his physician's assistant, Paul Russo, examined Patient D.L., pursuant to the consult order and diagnosed her as having a "comminuted, impacted, slightly shortened distal radius fracture with minimal angulation; will need a short arm cast." No further written report of Respondent's initial evaluation or diagnosis exists. On March 6, 1995, Patient D.L. purportedly was experiencing some hallucinations and exhibiting psychotic behaviors, and was ordered to remain admitted to the hospital for psychiatric evaluation. Respondent was not advised of her condition. Respondent admits that he currently has no specific recollection of Patient D.L. Respondent had a general policy of discussing his findings and diagnosis with his patient, as well as the various treatment options available; however, Patient D.L.'s chart does not reflect such a discussion. Notwithstanding Respondent's written diagnosis calling for a short-arm cast, Respondent placed her wrist in a long-arm cast. While Respondent explains that the long-arm cast was necessary to restrict and limit certain movements of Patient D.L.'s arm, there is no information within Patient D.L.'s chart noting the event or the modification rationale. Respondent explains that it is his policy to instruct each of his patients to follow-up with an appointment in his office within a week to ten days. However, it is clear that Patient D.L.'s chart does not reflect any communication or instructions. Respondent explained that he and his physician's assistant regularly documented various activities in the hospital chart's progress notes as a matter of policy, including the evaluation, findings, diagnosis, and disposition. It is clear, however, that Patient D.L.'s hospital chart contains no written notes made by Respondent relating to her history, physical examination, or disposition. On March 8, 1995, Patient D.L. was discharged to a nursing home with an order by the attending physician to follow- up with Respondent in two weeks. Two weeks later, on March 22, 1995, Patient D.L. presented to Respondent's office for a follow-up appointment. Upon arrival, Patient D.L. completed paperwork, including a Patient Medical Questionnaire, and was evaluated. Respondent's typed progress note indicates that Patient D.L. had extensive arthritis throughout her hand with very limited range of motion of her fingers. There is no patient history or physical in Respondent's note. On that same day, Respondent ordered and reviewed x-rays of Patient D.L.'s wrist which revealed that the fracture had remained in satisfactory position, with essentially neutral angulation of the lateral view and some shortening on the AP view. Respondent's note indicates that he removed Patient D.L.'s long-arm cast and placed her in a short-arm cast. The note indicates that Respondent instructed Patient D.L. to wear the cast for an additional three to four weeks; and thereafter, would likely require splinting and therapy. Respondent was advised that Patient D.L. was relocating to Fort Lauderdale, and Respondent instructed her to seek treatment there. Although Respondent explains that Patient D.L. would have likely been given the x-rays to take to the next orthopedic surgeon, the medical records do not indicate that Patient D.L. received them. On April 4, 1995, Patient D.L. presented to Lewis Eastlick, M.D., in Plantation, Florida. Dr. Eastlick noted that an abutment of the ulna was displaced which caused marked shortening of the radius and resulted in a permanent deformity of Patient D.L.'s wrist. Dr. Eastlick referred Patient D.L. to physical therapy. Petitioner established by clear and convincing evidence that Respondent's medical records for Patient D.L. were inadequate. Respondent did not sufficiently document, in writing, his evaluation, diagnosis, treatment, and patient communication. The testimony provided by Petitioner's experts, relating to documentation, was reasonable and credible. The testimony provided by Respondent's expert, Dr. Wasylik, relating to record keeping was less credible, given the available physical evidence. While Dr. Wasylik opined that Respondent's hospital progress note dated March 4, 1995, and the office record dated March 22, 1995, contain sufficient information regarding Patient D.L.'s condition and Respondent's evaluations and treatment plans, his conclusion was not supported by the evidence. Furthermore, Respondent's suggestion that Patient D.L.'s dictation notes may have been lost by the transcription service lacks credence. Although it is clear that Respondent deficiently memorialized certain information, Petitioner did not prove by clear and convincing evidence that Respondent's casting treatment of Patient D.L. fell below the applicable standard of care. In fact, one of Petitioner's own experts, Dr. Averbuch, agrees with Respondent's expert that casting Patient D.L.'s fractured wrist was more appropriate than utilizing more aggressive treatment via an external fixation or open reduction with internal fixation. The experts conclude that the fracture was non-displaced and impacted and in good position, making it more stable and more appropriate for casting. Respondent adhered to the standard of care in treating Patient D.L.'s fractured wrist by placing it in a cast. In addition, Petitioner did not demonstrate by clear and convincing evidence that Respondent's follow-up care fell below the applicable standard of care. Although it is established that Respondent did not see Patient D.L. until eighteen days after the initial setting of her fracture, the evidence is clear that Respondent regularly requested patients to follow up in his office within one week to ten days. Despite the fact that Petitioner's experts opine that Respondent should have seen Patient D.L. sooner, it is important to note that Patient D.L. was specifically instructed in writing by her attending physician, upon her discharge from the hospital on March 8, 1995, to follow up with Respondent in 14 days, which she did. There is no evidence that Respondent was made aware of Patient D.L.'s new psychiatric condition and extended hospitalization nor that he should have inquired. Patient D.L. was admitted on March 3, 1995, for observation only, treated by the Respondent on March 4, 1995, and formally admitted for mental examination on March 6, 1995. Patient D.L.'s mental status was not at issue until March 6, 1995, two days after Respondent placed her arm in a cast.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, enter a Final Order finding that Respondent, Clinton Bertrand Davis, M.D.: DID violate Subsection 458.331(1)(m), Florida Statutes (1995), and is ordered to pay a $5,000.00 fine, to be paid within 30 days, and undergo ten hours of Continuing Medical Education related to medical records documentation within 90 days; and DID NOT violate Subsection 458.331(1)(t), Florida Statutes. DONE AND ENTERED this 8th day of August, 2003, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 8th day of August, 2003. COPIES FURNISHED: Daniel Lake, Esquire Department of Health Prosecutorial Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Christopher J. Schulte, Esquire Burton, Schulte, Weekley, Hoeler & Beytin, P.A. 100 South Ashley Drive, Suite 600 Tampa, Florida 33602 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Larry Mcpherson, Executive Director Board of Medicine Department Of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
