Findings Of Fact The Respondent, at all times material hereto, has been a dentist licensed in the State of Florida, holding license number DN 0005029. He is engaged in the practice of dentistry in Pensacola, specializing in orthodontics. The Petitioner is an agency of the State of Florida charged with regulating the licensure status, admission to practice and practice standards in the State of Florida. During the period from September 1980 until July 1981, Ms. Wendy Ling became a patient of the Respondent and went to the Respondent's office on a number of occasions during that period of time to receive dental treatment. During the course of her dental treatment involving installation, fitting and maintenance of braces, she became somewhat dissatisfied with the Respondent's services, claiming that he should have spent more time personally with her when she was in his office. Because of her dissatisfaction, she sought the services of another orthodontist, Dr. Trum. When she left the care of Dr. Tarwick and sought the services of Dr. Trum, she owed Dr. Tarwick $140 for services already rendered her for dental care. When Dr. Trum assumed responsibility for her care, he informed her that he would need copies of her dental records. Shortly thereafter, either Dr. Trum, a person in his office or Ms. Ling called Dr. Tarwick's office to seek the records. Dr. Tarwick's financial secretary responded that $140 was still owed on her bill from Dr. Tarwick. Dr. Tarwick refused to forward her records until her bill was paid. She continued to refuse to pay her outstanding bill and the doctor filed a civil action against her in county court and prevailed. The court found that she owed the sum in question but the Respondent accorded she and her husband, a doctor, "professional courtesy" and agreed to discharge the debt for the sum of $80. During the time when he had refused to forward her records prior to her paying her outstanding bill, she complained to the Petitioner regarding this situation. A representative of the Department of Professional Regulation contacted the Respondent and informed him of the legal requirement that he forward records regardless of whether an outstanding bill was due. The Respondent professed ignorance of that provision of the law, was apologetic and hastened to forward her records contending, as he did at the hearing, that he was unaware that it was illegal to withhold forwarding of the dental records pending payment of an outstanding bill for services rendered. Upon forwarding the record to Ms. Ling's new orthodontist, the Respondent charged her a duplication fee of $50 for this service. This resulted in the other count in the Administrative Complaint regarding the reasonableness of the $50 fee for duplication and forwarding of records. The Respondent established without question at the hearing that it cost in excess of $110 to duplicate such records, excluding the Respondent's own time involved. The records are not merely paper reports that must be xeroxed, they include molds and casts of the complaining witness' mouth and/or gums and teeth. Duplication of all these portions of her records is necessary because the professional association, to which the Respondent must belong, requires that he keep a complete set of records for all patients. It was thus unequivocally established that the Respondent's fee for this duplication and record forwarding was less than half of what it actually cost his office to perform. The Respondent quite candidly expressed to the Department of Professional Regulation his ignorance of the legal provision that he not withhold forwarding of records pending payment of outstanding fees and clearly informed the Department, before the Administrative Complaint was ever filed, that he did not dispute that allegation and that he would move quickly to correct the mistake, which he did. Thus, the Respondent went to the hearing in the belief that the only dispute with the Petitioner was the question of the reasonableness of the duplication and forwarding fee for the records. The Petitioner was on notice that the Respondent did not dispute the charge in Count I. At the hearing, however, the Petitioner voluntarily dismissed the count concerning the question of the reasonableness of the duplication and forwarding fee (paragraphs 12 and 13 of Count II of the Administrative Complaint). It is thus obvious that the only true dispute concerning which the hearing was convened was the question of the reasonableness of the duplication and forwarding fee since the department was already aware that the Respondent did not contest Count I concerning the issue of withholding the transfer of patient records pending payment of outstanding fees for services rendered. The Petitioner, however, did not voluntarily dismiss Count II and thus obviate the necessity of a hearing even though it was informed of Respondent's basis for the fee and the necessity for a large expenditure to bring in Witness Benz, who established its reasonableness, and even though it arrived at the decision to dismiss the charge in Count II some days prior to hearing. Therefore, believing that the department was proceeding against him in good faith on the question of reasonableness of the duplication fee, the Respondent hired an accountant to do a cost study of such duplication efforts by his office, whereupon aimed at a figure in excess of $110 for the performance of that service. The Respondent thus expended a substantial amount of money ($1,000) in paying the expert witness to prepare for, attend and testify at the hearing and was not informed by the department that it had chosen prior to the hearing to voluntarily dismiss that count until the convening of the hearing with the previously necessary witness already present. Both the testimony of Dr. Tarwick and the President of the Florida Association of Orthodontists established that it is customary in the profession to withhold duplication and transference of patient records until all fees have been paid and both expressed surprise that this might be illegal. Letters from other orthodontists in other cities were admitted by agreement establishing that this is indeed customary in the profession and not merely an isolated example of aberrant behavior by Dr. Tarwick. Further, it was established by Dr. Tarwick that, given that Ms. Ling's treatment contract ran through October 1982, the slight delay caused in transferring her records to her new doctor, Dr. Trum, caused no adverse effects on her course of treatment and the correction of her dental problem. Dr. Tarwick was unaware that he was violating the statute under which he was charged and did not intentionally do so. In all his conversations with counsel for the department, Mr. Carpino, the only dispute discussed between them concerned the $50 fee. It was the Respondent's belief that he had fully and early informed the department that he did not dispute the charge concerning the withholding of dental records in return for the payment of the outstanding fee.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses and the evidence in the record, it is, therefore RECOMMENDED: That, in view of the technical, isolated and inadvertent violation of the above authority by the Respondent, which he corrected as soon as he became aware of the violation, a minimal penalty consisting of a private written reprimand should be imposed. DONE and ENTERED this 29th day of December, 1982, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 29th day of December, 1982. COPIES FURNISHED: Theodore R. Gay, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 H. Edward Moore, Jr., Esquire Sherrill, Moore and Hill Post Office Box 1792 Pensacola, Florida 32598 Fred Varn, Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: The Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME 0031545. The Respondent practices in south Florida as a cardiologist. The Respondent treated patient William Dean from 1979 through 1982. William Dean died of heart failure on August 30, 1982. Following Mr. Dean's death, his wife, Elizabeth Dean, obtained from Respondent copies of Dean's medical records. On July 2, 1983, Elizabeth Dean filed a complaint by letter with the Department of Professional Regulation against the Respondent. As a result of Mrs. Dean's complaint, the Petitioner began an investigation of the Respondent and notified Respondent of same. In addition, Mrs. Dean sued the Respondent for malpractice. During the investigation by Petitioner, copies of Mr. Dean's records were obtained from the Respondent. When the records obtained by Petitioner were compared with the earlier records obtained by Mrs. Dean, it was discovered that Respondent had made at least two additions to them. After being notified of the complaint and investigation, the Respondent added entries to the progress notes on Mr. Dean for November 12, 1981 and May 15, 1982. Among other things, the additions to the progress notes indicated that Respondent had advised Mr. Dean to take a stress test and angiogram and that Dean had refused. The Respondent dictated Mr. Dean's patient Expiration Summary, which appears in the hospital's patient charts, on October 17, 1983, fourteen months' after Mr. Dean's death. Humana Hospital Cypress, where Mr. Dean died, requires that physicians prepare patient expiration summaries within thirty (30) days after the patient's death.
Findings Of Fact Respondent Jose Raul Suarez has been licensed to practice medicine in the State of Florida since January 12, 1961. He conducts his practice at the Flagler Medical Clinic, 965 West Flagler Street, Miami, Florida. (Testimony of Manresa, Petitioner's Exhibit 1) On August 27, 1979, one Ronald Gudger was arrested by Miami police for possession of a stolen credit card. During the pendency of the criminal proceeding, Gudger informed police officials that Respondent had issued false prescriptions for drugs to himself and to others. On September 10, 1979, Gudger was released and placed in a pretrial intervention program. Subsequent to his release, Gudger told city detectives further details concerning his prior relationship with Respondent, including the fact that Respondent had previously provided him with written prescriptions for Preludin, Placidyl, and Percodan on various occasions in 1979. He also indicated to the officers that Respondent was desirous of obtaining a Betamax video recorder. Gudger had been introduced to Respondent by an individual named "Pete." During the course of some ten to fifteen visits to Respondent, Gudger never received a physical examination or informed Respondent that he had a weight problem or any other medical reason for needing the drugs. However, Respondent had asked him questions once for his records. On only one occasion did he pay Respondent a $10.00 office visit fee. On one occasion, he had promised to give Respondent a "stereo" in exchange for prescriptions for drugs. Although he obtained the prescriptions from Respondent, he was not able to get the stereo. (Testimony of Manresa, Lopez, Gudger (Deposition-Petitioner's Exhibit 7) Rabin, Petitioner's Exhibit 6) Pursuant to an arrangement with Miami narcotics detectives Luis M. Lopez and George Manresa, Gudger became a paid confidential informant for the police department. On September 12, 1979, Lopez and Gudger went to Respondent's office planning to offer Respondent a Betamax in exchange for drug prescriptions. The officers had obtained a Betamax from county sources and it was in the trunk of an unmarked police car parked in a lot in back of Respondent's office. At the time, Manresa conducted surveillance of the parking lot from a van in which he also monitored communication equipment designed to record any conversations in Respondent's office from a transmitter which had been hidden on the person of Lopez. Another police officer had camera equipment. At about 1:00 p.m., Lopez and Gudger entered Respondent's office. Gudger informed the receptionist that they had a Betamax that the Doctor wanted which had been stolen the previous night. In approximately an hour or an hour and a half, when all the patients had left the office, the receptionist told Gudger he could see Respondent. Gudger told Respondent that he had a Betamax waiting for him in return for $100.00 and some prescriptions. Respondent stated that he was short of cash. Gudger informed Respondent that "Louie" was in the outer office and was a friend of his. Respondent asked "Is he cool?" and Gudger said "Yes." Gudger brought Lopez into the office and introduced him to Respondent as the "guy with the Betamax." Lopez told Respondent he had the Betamax , which was "hot," in the trunk of his automobile which was parked behind the office. Respondent stated "It's no problem." They told Respondent that they would take prescriptions for the machine and Respondent asked how they wanted to do it. Lopez gave Respondent list of several names and addresses and told him that he had a brother named Luis Lopez. Lopez identified himself with a false identification card in the name of Luis Trigo. Respondent then proceeded to write six prescriptions for Placidyl 750 mg and Preludin 75 mg in the amounts of 30 each. Two prescriptions were in the name of Luis Lopez, two in the name of Lazaro Luis Trigo, one in the name of Ronald Gudger, and another in the name of Rhonda Gudger, his wife. Lopez asked Respondent to write one prescription for a different date than September 12 and Respondent dated one of the Trigo prescriptions for September 13. While writing the prescriptions, Lopez remarked to Gudger that he was really going to get "high" that night with the pills, and Respondent merely smiled when hearing this statement. Respondent told them that when filling the prescriptions, they should dress neatly and comb their hair so that they would not call attention to themselves. Be also told them not to go to the Golden Pharmacy in North Miami because the police had been checking it and it was "hot." Respondent told Lopez that he would fill out a patient card on him for his records, but did not do so at that time. Lopez told Respondent that he did not want to have a physical examination and Respondent replied that he didn't need one. He told the men to put the prescriptions in their pocket as they left the office so that they would not be noticeable, and said that he would meet them in back for the Betamax. Gudger and Lopez then left the office and went to the parking lot. Respondent followed soon thereafter. Lopez drove his automobile so its trunk was near the trunk of Respondent's car . He opened the trunk and showed the Betamax to Respondent and asked him if that was what he wanted. Respondent said it was perfect because it was a two-hour cassette type and told him to put it in the trunk of his automobile. At that time, the other police personnel in the vicinity came to the scene and arrested Respondent who was thereafter charged with possession and dealing in stolen property and sale of controlled substances. Respondent was later tried on the criminal charges and found not guilty by jury verdict. Patient records obtained from Respondent during the course of discovery in that proceeding reflected both Ronald Gudger and Rhonda Gudger as patients who both suffered from depression and insomnia. In addition, the records indicated that Rhonda Gudger desired to lose weight. Ronald Gudger's card reflected that he had sought treatment on four occasions from May to August 1979, at which time Preludin and Valium had been prescribed, and that on an additional visit he had been issued a refill of Preludin since he had lost his prescription. (Testimony of Manresa, Rabin, Lopez, Igoe (deposition), Gudger (Petitioner's Exhibit 7), Petitioner's Exhibits 2-6, 8) Placidyl is a trade name for Etchlorvynol, a Schedule IV controlled substance under Chapter 893, Florida Statutes. Preludin is the trade name for Phenmetrazine, a Schedule II controlled substance under Chapter 893. Placidyl depresses the central nervous system and is customarily prescribed for insomnia. Preludin is used for appetite suppression, anorexia, and narcolepsy. It is excitatory and produces adrenaline-like effects. Both drugs can be used safely if properly administered after a thorough medical history and physical evaluation has been made by a physician, but should never be prescribed without interviewing the patient and arriving at an informed diagnosis of his condition. In the opinion of an expert medical authority, it would be an unacceptable medical practice to prescribe such drugs to persons whom a physician had never seen. In the vernacular of drug abusers, Placidyl is termed a "downer" and Preludin an "upper." (Testimony of Palmer, Stonis) Respondent testified at the hearing substantially as follows: Ronald and Rhonda Gudger had been his patients whom he had treated for legitimate complaints in 1979. He had prescribed Preludin to Ronald Gudger for conditions of depression, insomnia and obesity, to serve as an anti-depressant and "mood elevator." He had seen Rhonda on June 8, 1979, and prescribed Preludin for her obesity. He saw Gudger on September 12, 1979, at which time Gudger requested that he be given a refill prescription of Preludin and also Placidyl, claiming it was good for his sleep. He also asked Respondent to refill his wife's prescription because she, was doing well on the medication. Respondent claimed that he wrote both prescriptions and told Gudger that he owed $10.00 from his last visit and $10.00 for the present visit, at which point Gudger stated that he had no money but would sell Respondent a Betamax. Respondent then informed Gudger that he did not want anything stolen and Gudger told him that it was "cool" and that he needed money. Respondent stated that he would have to see it. Gudger asked him to see his friend and thereafter brought Lopez into the office. Lopez asked for Preludin stating that he had used it before as a mood elevator. Respondent asked Lopez questions concerning his medical history and was going to perform a physical examination, but Lopez objected stating that he did not need one. Respondent then wrote the prescriptions for Lopez, at which time Lopez told him that he had a 29 year old brother who also took the same medicine and asked for prescriptions for him. Respondent wrote the prescriptions for the brother because he had patients waiting and Lopez had told him the brother was in good health and "strong as an ox." Respondent then went to the parking lot behind his office to obtain a prescription pad and also to see the Betamax which he had agreed to purchase from Gudger if it worked properly and they could agree on a price. He denied that Lopez had told him that the Betamax was "hot." Respondent issued the prescription for Gudger's wife because he trusted him when he stated that his wife had done well on the drug and that she needed a refill of the prescription. He had issued the prescriptions to Lopez because he had said he was in perfect health and just felt "down" and had difficulty sleeping at night. (Testimony of Respondent) Two local physicians and a nursing supervisor testified at the hearing as to their observations that Respondent provided his patients with excellent care. A number of letters were received in evidence from fellow physicians in Miami attesting to Respondent's good reputation as an ethical and professionally capable physician in the community. Also, Respondent's work with the Armed Forces Examining and Entrance Station in Miami was praised in a letter from the station's commanding officer. A nursing administrator for Multicare, Inc. in Miami also provided a letter concerning Respondent's concern for patients' needs in the Medicare program and his efforts to prevent mismanagement of Medicare funds. A high school principal wrote a letter concerning Respondent's treatment of his family and his services to schools and other community activities in the Miami area. (Testimony of Serratta-Noges, Lameles, Cruz, supplemented by Respondent's Exhibit 1)
Recommendation That the State Board of Medical Examiners issue a Final Order suspending the license of Respondent Jose Raul Suarez to practice medicine for a period of one year, pursuant to subsection 458.331(1)(q) and (2), Florida Statutes. DONE and ENTERED this 2nd day of September, 1980, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1980. COPIES FURNISHED: Kenneth G. Oertel, Esquire Acting General Counsel Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Julian Mark, Esquire Suite 500 - Security Trust Bldg. 700 Brickell Avenue Miami, Florida 33131
Findings Of Fact At all times material hereto, Respondent Jorge Macedo, M. D., has been licensed as a medical doctor under the laws of the State of Florida. Respondent graduated from medical school in Brazil in 1954, and practiced in Brazil for one year thereafter. He then came to the United States, where he has practiced from 1956 until the present date. On February 13, 1976, Maury Braga came to Respondent's office in Hialeah, Florida. Respondent had never before met Braga and had never heard of him. Braga advised Respondent that he was a medical doctor from Brazil, that he had attended and graduated from the Faculdade de Ciencias Medicas de Santos, Brazil, that he had practiced the profession of medicine in Brazil during the years of 1967 through 1972, that he was in the process of obtaining his medical license in Florida, and that to complete his Florida medical application he needed statements from local doctors acknowledging that Braga was a Brazilian medical doctor. Braga showed to Respondent documentation concerning his education and practice, including his medical diploma. Based upon his interview of Braga and his examination of Braga's documents, Respondent signed a form utilized by Petitioner, which form is entitled "Affidavit" and which reads, in pertinent part, as follows: I, Jorge Macedo, M. D., of 1060 E. 4th Ave., Hialeah, Florida, do hereby swear and affirm by my personal knowledge, that Maury Braga attended and graduated from Falcudade de Ciencias Medicas de Santos and did lawfully practice the pro- fession of medicine, in Brazil during the years of 1967 through 1972, and that I also practiced the same profession in Brazil. When Respondent signed the "affidavit," it was not notarized. Respondent had no personal knowledge regarding whether Braga had ever attended or graduated from medical school or regarding whether Braga had ever practiced medicine in Brazil. Respondent relied totally on the information contained in the documents Braga showed to him and upon what Braga told him. After Braga left Respondent's office, he had the "affidavit" signed by Respondent notarized. He attached the "affidavit" to an Application for Examination and Course in Continuing Medical Education, which application he then submitted to the Florida Board of Medical Examiners. On February 26, 1976, the same day that Braga's application was received, the Executive Director of the Board of Medical Examiners wrote to Braga advising him that his application was received after the deadline of January 26, 1976, and was therefore rejected. The application was not returned to Braga, but rather was placed in a file opened under Braga's name to be retained in the event that Braga again applied within the next three years to take the course in continuing medical education and the examination for licensure. On January 17, 1977, Braga filed a second application to take the course in continuing medical education which would then qualify him to take the examination for licensure. The second application included "affidavits" from medical doctors other than Respondent. One of Braga's two applications was approved; Braga completed the course in continuing medical education; Braga took and passed the examination for licensure; and Braga was licensed as a medical doctor in the State of Florida on March 10, 1978. Maury Braga did not attend or graduate from the Faculdade de Ciencias Medicas de Santos, and did not lawfully practice the profession of medicine in Brazil during the years 1967 through 1972. Braga's license to practice medicine in the State of Florida has been revoked. At least prior to the revocation of his license, Braga's file with the Petitioner contained both the application he filed in 1976 and the application he filed in 1977. No evidence was introduced to show which application was reviewed when Braga's application to take the educational course and examination for licensure was approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the violation charged in Count Two of the Administrative Complaint, dismissing Counts One, Three and Four of the Administrative Complaint, and placing Respondent's license on probation for a period of one year, subject to terms and conditions set forth by the Board. DONE and RECOMMENDED this 17th day of February, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1983. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee7 Florida 32301 Jack E. Thompson, Esquire Ingraham Building, Suite 516 25 SE Second Avenue Miami, Florida 33131 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy J. Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BOARD OF MEDICAL EXAMINERS DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Petitioner, vs. CASE NO. 82-114 JORGE MACEDO, M.D. License Number: 10095 Respondent. /
The Issue Whether Respondent, a licensed physician, committed the offenses set forth in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is the agency of the State of Florida charged with regulating the practice of medicine in the State. At all times pertinent to this proceeding, Respondent was licensed as a physician in the State of Florida and practiced in the specialty of ophthalmology. Respondent's license, number ME 0022716, expired while this matter was pending. On May 25, 1993, Petitioner filed an Administrative Complaint against Respondent who thereafter timely requested a formal hearing. The matter was referred to the Division of Administrative Hearings, and this proceeding followed. Shortly after filing the request for hearing Respondent's whereabouts became unknown to Petitioner. Despite diligent search and inquiry, Petitioner was unable to locate Respondent. Notices mailed by the Division of Administrative Hearings to his last known address were returned. Constructive notice of the hearing in this matter was given to Respondent by publication. In May 1991, Respondent worked at Lucy Optical Store in the Little Havana section of Miami, Florida. On May 13, 1991, Augustin Garcia, an investigator employed by Petitioner appeared at Lucy Optical Store in an undercover capacity. Mr. Garcia posed as a patient who complained that he was having difficulty seeing at night and that lights were causing him to have headaches. Mr. Garcia requested an eye examination. After discussing his complaints, Respondent led Mr. Garcia from the waiting room to an examining room. On May 13, 1991, Myriam Garcia Lacayo was working at Lucy Optical Store as Respondent's medical assistant. Ms. Lacayo is not licensed by the Petitioner in any capacity. While Respondent was present in the examining room, Ms. Lacayo performed a refraction test on Mr. Garcia's eyes. Upon completing the refraction test, Ms. Lacayo told Mr. Garcia that he did not need glasses and instructed Mr. Garcia to return within nine months to a year for a follow-up examination. Ms. Lacayo further advised Mr. Garcia that he should wear non- prescription eyeglasses with a light tint for night driving. Mr. Garcia was not told by anyone that he had not been given a complete eye examination. After the examination was completed, Mr. Garcia revealed his true identity and requested the medical records that had been taken, including a prescription that Mr. Garcia had seen Respondent write. Respondent became very upset upon learning Mr. Garcia's true identity and refused to give him the prescription. The manager of Lucy Optical Store gave Mr. Garcia the medical record, consisting of a one page document, that had been generated as a result of his visit. Respondent failed to administer to Mr. Garcia appropriate tests for glaucoma or for cataracts. The standard of care requires that a patient such as Mr. Garcia be evaluated for glaucoma and cataracts when the patient requests a complete eye examination. Failure to perform these tests may falsely reassure the patient that his eyes have been fully examined and found to be healthy. If these tests are not performed, the ophthalmologist should explain to the patient that he had only had a refraction test and not a complete eye examination. Respondent practiced below the standard of care in failing to test Mr. Garcia's eyes for glaucoma and cataracts. Respondent's medical records fail to document any reason why appropriate tests for glaucoma and cataracts were not performed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of facts and conclusions of law contained herein. IT IS FURTHER RECOMMENDED that Petitioner assess an administrative fine in the amount of $5,000.00 against Respondent and require that Respondent demonstrate that he has the present ability to practice medicine with the requisite degree of skill and safety prior to the renewal of his license to practice medicine in the State of Florida. IT IS FURTHER RECOMMENDED that his licensure be placed on probation for a period of two years if it is renewed. DONE AND ENTERED this 3rd day of January, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 3rd day of January 1995.
The Issue Respondent is charged in Count I of the Administrative Complaint with failure to properly examine, diagnose, and treat the patient Lynne McMurry; failure to keep adequate written medical records regarding treatment; providing treatment to the patient which was neither necessary nor justified; and failing to properly inform the patient of Respondent's medical diagnosis and by so doing violating Section 458.331(1)(t), Florida Statutes, in that she failed 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. Upon the same factual allegations, Count II alleges violation of Section 458.331(1)(o), exercising influence on a patient or client in such a manner as to exploit the patient or client for financial gain. Upon the same factual allegations, Count III charges violation of Section 458.331(1)(1) by making deceptive, untrue, or fraudulent representations in the practice of medicine or by employing a trick or scheme in the practice of medicine when such trick or scheme fails to conform to the generally prevailing standards of treatment in the medical community. Upon the same factual allegations, Count IV charges a violation of Section 458.331(1)(n) by failing to keep written medical records justifying the course of treatment of a patient. Upon the same factual allegations, Count IV charges a violation of Section 458.331(1)(i) by making or filing a report the Respondent knows to have been false.
Findings Of Fact No evidence was adduced at formal hearing to prove up the threshold issue of jurisdiction by licensure. No prehearing stipulation of the parties established paragraph 2 of the Administrative Complaint alleging that at all times material hereto Respondent was a licensed physician in the state of Florida, having been issued license number ME0037967. No requests for admission within the record establish this essential allegation as fact. No answers to interrogatories to establish this fact were read into evidence at the hearing. Respondent saw Lynne McMurry on four occasions. Respondent saw this 113 pound 39 year old female on April 17, 1984, and took a complete medical history. On April 24, 1984, Respondent's notes reflect that Respondent recorded McMurry's blood pressure and glucose level and did a urinalysis. They also reflect that vitamin B-complex was prescribed. There is no indication within the notes of whether this vitamin was administered orally, intramuscularly, or otherwise. However, it appears from the testimony that both experts assumed the B complex was administered by injection on that date. The notes reveal that on May 8, 1984, Respondent performed a lesion removal (described in testimony as the excision of a mole) and recorded test scores for urine, glucose, hematocrit, and hemoglobin. It may be inferred that the tests were done in Respondent's office on blood and urine samples provided by Ms. McMurry. According to Respondent's notes, she again saw McMurry on May 22, 1984, recorded her weight as reduced to 110 pounds, and again prescribed vitamin B-complex. Attached to these notes are copies of the test results recorded plus a breast thermography done on April 24, 1984, and one testing panoramic dated April 17, 1984. No notes were recorded by Respondent for April 17, 1984, beyond the medical history previously mentioned. Insurance claims for these treatments were made by Respondent based on diagnoses of "fibrocystic breast disease" and "hypotension." Petitioner's witness, Dr. Stanley L. Weiss, an osteopathic physician, has concentrated much of his study, practice, and writing in the Respondent's field of bariatric medicine (weight control and eating disorders) and his deposition (P-1) has been accepted as the opinion of an expert witness in review of medical records and medical matters. Dr. Weiss' background includes the policing of medical insurance claim fraud through the Florida Blue Shield Review Committee. Respondent's witness, Dr. Lionel R. Blackman, medical physician and past Medical Director of Lakes Hospital, Lake Worth, Florida, has many years of reviewing physicians' and hospital records, both in hospital peer reviews and in offices where usually only one physician reviews his or her own notes. He testified orally on behalf of Respondent. Dr. Blackman is also accepted as similarly qualified to render expert testimony on review of medical records and on medical matters. Dr. Weiss' criticism of Respondent's notes was solely related to his perception that they fail to contain sufficient information. He specifically found no malpractice in the treatment given, the records kept, or the claims made, but was concerned with the scarcity of what he felt would be adequate progress notes in the chart if another doctor had to review them. He conceded that a comprehensive history and physical examination form had been filled out on April 17, 1984, but expressed concern due to the appearance of several different handwritings on that physical examination form, as though a nurse, physician's assistant, and/or the Respondent herself had partially completed the form. He objected to lack of documentation for the necessity of multiple diagnostic procedures without additional comment within the notes covering actual physical evaluation, patient response to therapy, what therapy had been, and what the future plan of therapy would be. Reviewing the same notes of Respondent, Dr. Blackman considered them sufficient for office practice. He assumed from the notes that the patient being treated was a basically healthy patient without pathology, since no pathology was noted. Under these conditions, he further assumed that the B-complex prescription was used as a general tonic. He stated that one was required to assume Ms. Murry was generally sound because one could not assume a treatment for vitamin deficiency had been undertaken since B-complex vitamin .deficiency is exceedingly rare. He testified as one experienced in reviewing office notes that for office notes, the proper standard is that negative findings need not always be recorded. In short, Dr. Weiss found the notes less than adequate, unsatisfactory, and below common standards, and Dr. Blackman found them adequate, satisfactory, and meeting common standards for office notes. Without conceding any inadequacy of her records, Respondent explained that at the time the various notes had been made, her standard procedure was to personally do the patient history and physical examination while a physician's assistant transcribed the notes from her dictation during her personal "hands- on" examination. Since the complaint was filed, she has discovered everything she orally dictated was not written down by the single assistant she employed in 1984 and since them she has hired two better-trained assistants and has instituted a personal review of each chart at the close of each day's examinations. Respondent has an excellent reputation in the local medical community of West Palm Beach and has served on a number of community service teaching and writing projects. Last year she obtained 98 continuing medical education credits. Although never specifically stated, the undersigned infers all or most of these hours impinge on improving Respondent's record keeping skills. There is no suggestion from any source that the Respondent's diagnoses were in error or that the B-complex did or even could have produced an undesirable result in the patient, Lynne McMurry. Nothing within this record supports the allegations of violations as charged in Counts I, II, III, or V.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Board of Medical Examiners enter a Final Order dismissing with prejudice all Counts against Respondent. DONE and RECOMMENDED this 24th day of April, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 24th day of April, 1987. COPIES FURNISHED: Dorothy Faircloth, Executive Director Florida Board of Medicine 130 North Monroe Street Tallahassee, Florida 32301 H. Scott Hecker, Esquire 517 Southwest First Avenue Fort Lauderdale, Florida 33301 Deborah J. Miller, Esquire 2100 Ponce de Leon Boulevard Suite 1201 Coral Gables, Florida 33134 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Joseph A. Sole, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
