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DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs JEROME W. CRAFT, 07-000408PL (2007)
Division of Administrative Hearings, Florida Filed:West Palm Beach, Florida Jan. 19, 2007 Number: 07-000408PL Latest Update: Dec. 25, 2024
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BOARD OF MEDICINE vs JOSEPH RICHICHI, 98-000330 (1998)
Division of Administrative Hearings, Florida Filed:Naples, Florida Jan. 15, 1998 Number: 98-000330 Latest Update: Jul. 06, 1999

The Issue The issue is whether Respondent is guilty of departing from the applicable standard of care, failing to keep adequate medical records, or making deceptive, untrue, or fraudulent representations in the practice of medicine and, if so, what penalty should be imposed.

Findings Of Fact Respondent has been a licensed physician in Florida continuously since August 30, 1983. His license number is ME 0042770. Respondent has never been disciplined and has, since the events described below, attended a course on the preparation of medical records. Respondent has been Board Certified in Family Practice since 1995. He specializes in the area of family practice and maintains his office in the Naples Medical Center in Naples. T. M., who was born on June 13, 1951, presented to Respondent for the first time on April 3, 1991. She had seen other physicians at the Naples Medical Center, but not Respondent. She had last visited the Naples Medical Center on February 25, 1988. T. M. had several purposes in her first visit with Respondent. First, she wanted to establish herself as a patient of Respondent following the retirement of her previous physician. Second, she wanted a prescription for Premarin following an earlier hysterectomy. Third, she wanted to determine if she had any need for a PAP smear. T. M. completed a patient questionnaire during the April 3 office visit. In her answers, T. M. affirmed that she had had "hemorrhoids or rectal bleeding," but she underlined only "hemorrhoids." She denied any colitis or other bowel disease, constipation or diarrhea, or recent change in bowel action or stools. T. M.'s testimony that she was experiencing a feeling of pressure in her bowels and felt the need to have a bowel movement when she did not need to have one is not credited. It is inconsistent with the history, as discussed below, that T. M. related to Respondent's office on her second office visit and later to Dr. Cooper. In the medical records for the April 3 office visit, Respondent noted that he reviewed T. M.'s chart and discussed her physical, "etc." The notes state that Respondent found no need for a PAP smear due to prior hysterectomy and bilateral salpingo- oophorectomy. The notes add that T. M. daily uses Premarin, which replaces estrogen, that she is not cycling, and that she will return to the office as needed. The notes report that T. M. will return to the office as needed. The notes record that T. M. will need a mammogram this year and that Respondent is refilling her Premarin prescription. These are Respondent's original medical records for T. M. As noted below, following Respondent's discovery that another physician had detected colo-rectal cancer in T. M. in January 1992, Respondent made additions to his notes. He did not date the additions to show that they were added months after the original notes. At the top of the notes, Respondent added: "Needs prescription--refill Premarin." After "etc.," Respondent added: "Family history of cancer + preventative care." Immediately preceding "RTO PRN" (which means return to office as needed), Respondent added: "Wants to." Immediately after this shorthand notation, Respondent added: "+ will call to reschedule." Adding the number 1 to the mammogram note and the number 3 to the refill Premarin note, Respondent also inserted a number 2, which states: "labs + physical this year." Within a few weeks of this initial office visit, T. M. began to experience problems with her bowels in the form of rectal bleeding and the feeling of pressure, as though she had to have a bowel movement or urinate when she did not. In June 1991, T. M. set up an appointment for June 28. By this time, T. M. was finding red blood in her stool and when she wiped her rectum with toilet paper. She told the nurse that she had been experiencing this problem for two months. The nurse recorded T. M.'s report of blood in her stool and the feeling of needing to move her bowels when she did not really need to do so. Respondent noted in the medical records: "Tenesmus." "Tenesmus" is the sensation of an urge to have a bowel movement. Under "tenesmus," Respondent wrote: "Bleeding + urgency urination." At this point, Respondent correctly commenced the process of diagnosis, rather than screening which is the performance of a test on an asymptomatic population. T. M. presented with specific complaints and symptoms that required diagnosis; by the second visit, she had self-screened. T. M.'s relevant history was that family members had had cancer, but not colon cancer. She had had hemorrhoids, but only during her two pregnancies. Respondent performed a focused examination to determine the source of T. M.'s complaints. Respondent conducted a urinalysis to rule out a urinary tract infection. The urinalysis was negative. Respondent next performed an anoscopy. An anoscope is a funnel-like instrument 4-6 inches long that is inserted into the anus. A separate light source allows the physician to observe the anus and rectum, just past the anal verge, for a total distance of about 6 centimeters. Respondent placed his finger into T. M.'s anus, but not for the purpose of conducting a digital rectal examination. A physician conducting an anoscopic examination first inserts a finger into the anus in order to relax the sphincter and confirm the absence of any blockages that would prevent the insertion of the anoscope. Consistent even with Respondent's augmented records, Respondent performed no separate digital examination of T. M.'s rectum. The purpose of the digital rectal examination is to feel the contour of the rectal wall for bumps, irregularities, or areas of unusual consistency. Although the location of T. M.'s cancerous lesion would have been within reach of a digital examination, the record does not establish that that anything would have been discoverable at the time of the June 28 office visit. Testimony to this effect from Petitioner's expert witness, Dr. Thomas Hicks, did not establish clear and convincing proof because, despite Dr. Hicks' evident competence, of his expertise in family medicine, rather than oncology, and the difficulty of determining, in hindsight, the likely size of cancerous lesions based on their condition months later after surgical intervention. The parties discuss in their proposed recommended orders Respondent's failure to document a digital rectal examination, but their shared assumption--that one took place--is unwarranted. The failure to perform a digital rectal examination raises a question as to Respondent's conformance with the applicable standard of care, but the real standard-of-care issue is Respondent's handling of the preparation of a treatment plan. As Dr. Hicks' testified, the timely preparation of a treatment plan would have satisfied all standard-of-care issues, despite the failure to perform a digital rectal examination. The situation is similar as to the performance of a hemocult blood test. Respondent's testimony that he performed one is rejected as a fabrication. The records reflect no such test. The failure of the medical records to document the hemocult blood test is thus explained by the failure of Respondent to conduct this test. The anoscopy was negative. Respondent recorded in his medical records: "Anoscope + Hemorrhoids. No clots." Following the anoscopy, Respondent tentatively diagnosed T. M. as suffering from hemorrhoids. However, Respondent set up an appointment for T. M. to return to the office for a sigmoidoscopy, which would allow examination of the lower intestine above the area examined by the anoscope. Respondent made undated additions to the medical records for the June 28 office visit. Below the recorded findings from the anoscopy, Respondent later added: "Wall color looks OK." In the original record, Respondent concluded the entries with documentation that he prescribed Anusol and stool softener and would perform a "Sigmoid to [check mark] higher up." The relevant changes were to write "Plan" beside these notes, number the three steps, and add "for malignancy" after "higher up." On July 2, 1991, T. M. visited Respondent's office so that he could conduct a sigmoidoscopy. This examination involves the insertion of a flexible tube, with its own light source, through the anus and rectum and into the sigmoid colon up to 60 centimeters for observation of the rectum and sigmoid colon. Respondent was able to insert the sigmoidscope 45 centimeters, which was adequate. He detected a spastic colon, hemorrhoids, and diverticuli, but no lesions or strictures. The absence of lesions or strictures is an indicator of the absence of precancerous or cancerous conditions. The findings of the sigmoidoscopy were thus consistent with Respondent's working diagnosis of hemorrhoids. Respondent again made undated additions to T. M.'s medical records, but the additions are unremarkable augmentations to the original notes, which adequately described the findings of the sigmoidoscopy. Following the June and July office visits, T. M.'s symptoms worsened. She began bleeding between bowel movements and was losing more blood. She felt tired all the time. She continued to feel pressure in the area of her rectum. Respondent discussed with T. M. her symptoms. He learned that she experienced some constipation, but no spasms, no feeling of a foreign body in her anus, and no abdominal or urinary tract pain. Respondent noted these findings in T. M.'s medical records. For the September 24 office visit, the medical records reflect the above-described discussion together with Respondent's recommendation that T. M. take a stool softener. Respondent later added notes showing that he reviewed the findings of the sigmoidoscopy. In the space between two lines in the original records, Respondent added: "She may need colonoscopy + referred to GI." Other additions immaterially expanded on the original notes. At the bottom of the note for this office visit, Respondent added: "To GI soon if not resolved. She will call." Respondent produced a "super bill" for the September 24 office visit. The bottom of the bill contains a block for the next appointment. The lower left-hand corner of the block states "wait." The remainder of the block states: "Appt. Dr. K. Hussey. Reason: rectal bleeding. Needs colonoscopy." Beneath this block at the very bottom of the page is the following statement: "(She will call us)." T. M. did not have her copy of this super bill. Nothing in the record suggests that, when requested to provide T. M.'s medical records to the New York physician, Respondent's office sent a copy of the super bill, which Respondent unsuccessfully contends is part of T. M.'s medical records. While notations on super bills that do not functionally assist in the process of ensuring continuity of care do not qualify as medical records, the other question concerning the super bill is whether it serves as contemporaneous documentation of Respondent's recommendation that T. M. consult a gastroenterologist. Respondent's readiness to add undated entries to T. M.'s medical records inspires no confidence in the self- serving note contained at the bottom of the super bill. To the contrary, given the succinctness of Respondent's unaltered medical records, it is unlikely that Respondent would take the time, on a bill, to write in the reason for the appointment with Dr. Hussey and the need for a colonoscopy. The parenthetical comment that T. M. will call Respondent's office renders these entries even more suspicious. A preponderance of the evidence, but not clear and convincing evidence, suggests that these entries on the super bill are also undated additions following Respondent's discovery that T. M. had rectal cancer. T. M. did not return to Respondent. Instead, while visiting her brother-in-law, who is a physician, in New York over Christmas, she scheduled an appointment on December 27, 1991, with a gastroenterologist who practiced with the brother-in-law. The physician performed a digital rectal examination and found a firm irregular area on the anterior wall of the rectum. A sigmoidoscopy revealed a large ulcerated lesion approximately 2 to 3 centimeters above the anal verge. After additional diagnostic work, a surgeon removed the lesion and performed a permanent colostomy in early January 1992. Petitioner contends in its Proposed Recommended Order that Respondent deviated from the applicable standard of care when he did not order a complete blood count during the September 24 office visit. However, Dr. Hicks accurately defined the issue when he testified that the complete blood count, as was the case with the omission of a digital rectal examination on the June 28 office visit, would not have represented a departure from the applicable standard of care if Respondent had timely prepared a treatment plan. The issue of the timeliness of the preparation of a treatment plan arises as of the September 24 office visit. Dr. Hicks' testimony precludes a finding that the failure to develop a treatment plan to pursue an alternative to the working diagnosis of hemorrhoids was a departure from the applicable standard of care any earlier than the September 24 office visit. As of the September 24 office visit, though, Respondent had three alternatives. He could either perform sufficient diagnostic tests to explore T. M.'s ongoing symptoms, he could refer her to a gastroenterologist, or he could briefly continue treatment of hemorrhoids. There is no dispute that Respondent attempted further diagnostic tests after the September 24 office visit; he did not do so. Respondent contends that he continued treatment of the hemorrhoids. There is a brief note on December 2, 1991, that T. M. received a prescription to control bowel spasms. However, Respondent's nurse evidently prescribed this medication on her own, and the spasms were not shown to be linked to hemorrhoids. To the contrary, Respondent testified that he felt that her problem at the September 24 office visit was likely constipation, which could aggravate the hemorrhoids. There is no evidence that Respondent elected, at the end of the September 24 office visit, to briefly continue treating hemorrhoids; if nothing else, Respondent's contentions about a gastroenterological referral tend to undermine further treatment by him of hemorrhoids. There is no dispute that Respondent could have met the applicable standard of care by referring T. M. to a gastroenterologist at the end of the September 24 office visit. However, the evidence is clear and convincing, despite Respondent's testimony and other evidence to the contrary, that he did not do so. This finding is based partly on the testimony of T. M., whose recall of her visits with Respondent and her visit with Dr. Cooper is obviously imprecise and sometimes inaccurate. This finding is also based on a close assessment of the evidence offered by Respondent to support his contention that he made a referral. Assessment of Respondent's contention of a referral begins with close examination of the already-noted entry, "She may need colonoscopy + referral to GI." This entry does not evidence a recommendation of a consultation, but rather mentions the possibility that a consultation might take place in the future. On January 10, 1992, T. M.'s mother called Respondent and informed him of T. M.'s rectal cancer surgery. At this time, Respondent, who was unaware that his office had already supplied a copy of T. M.'s original medical records to her New York physician, made all of the above-described changes in the medical records, plus another, properly dated entry, which states: "I recommended GI at last visit for a check-up or a colonoscopy but she did not schedule." However, despite the fact that Respondent made these two notes on the same date, they reveal a significant discrepancy. Unlike the added note for September 24, which refers to a future referral, the note for January 10 refers to an actual referral. In a deposition taken four years after the surgery, Respondent gave a more elaborate version of whether he made a referral during the September 24 office visit and reveals the same variation between an actual referral and a possible referral in the future. Taken for a pending medical malpractice action that T. M. had brought against Respondent, the deposition testimony states: Q. You would agree with me, sir, if you failed to get her to see a doctor other than yourself to get this problem checked out that that would have been a breach in the standard of care? A. If I failed to what? Q. If you failed to send her to a doctor--if you said, T[.], you need to get somebody to check this out, I want you to go get this checked out, then you would have breached the standard of care, wouldn't you, sir? A. If I told her to go somewhere? Q. If you failed to tell her. A. I would agree. * * * Q. All right. Did you suspect in your differential diagnosis on 9-24-91 when she came in that could be rectal cancer? Was that in your differential diagnosis? A. Yes, it could have been. Q. Okay. When you told her that you--I assume that you told her then--it's your contention you told her at that time you could have rectal cancer; correct? A. No. Q. You didn't tell her that? A. No. Q. Why not? A. Because--I mean, I told her that she needed to have this evaluated. That doesn't mean she has rectal cancer, to get it evaluated. Q. Well, what did you tell her if you suspected that she could have that and that was properly in your differential diagnosis to impress upon her the need to follow through, if anything? A. You mean to scare her into getting--into making an appointment? Q. Well, not to scare her. You didn't need to scare her to do it, did you? A. No. Q. Well, what did you say to her to get her to make the appointment? A. That she should--if this doesn't resolve, she should get an opinion from a gastroenterologist. Q. If this doesn't resolve; is that right? A. If this continues. Q. Okay. So if I understand what you're saying now, you didn't tell her you definitely need today to go get this. You told her, well, if it doesn't resolve, then you should see somebody--see a gastroenterologist? A. That why the-- Q. Am I correct? A. Well, I sort of let it--well, I didn't leave it at that, but it was--it was problem enough to get some other opinion. Q. Why was it problem enough to get some other opinion? A. Because it's been so persistent. * * * Q. What do you mean, because it's been so persistent? A. Well, the complaint has been going on for months. Q. Okay. And what about that persistency that this complaint's been going on for months made it difficult to have her go see somebody else? A. Well, it wasn't that. It was--I think it was her hesitance to make an appointment, whether to have something done or not or to have an operation or to have, you know, the hemorrhoids looked at. It wasn't that type of thing that she was looking forward to, so we sort of put a wait on it. We didn't go through with making the appointment. Q. Okay. When you say we put a wait on it, then this was something you discussed? A. Right. Q. And she—what did she say that gave you the impression that she wanted to wait? A. Well, she was--you know, she was upset about the whole thing. Q. Okay, because it had been going on so long? A. Right. Q. And you said-- A. Then--then about the other--then going to another physician, of having a specialist-- specialist look at her to do a procedure, you know, the same type of procedure except it would be more thorough, more--you know, a colonoscopy and possibly some procedure like a surgical procedure. Q. Well, was it your belief on 9-24-91 that it could, in fact, be just simply hemorrhoids? A. It was possible, but that--that wasn't--I mean, there was hemorrhoids, but that might not have been the reason for all her problems. Q. Did you ever say to her, T[.], the persistence of this problem leads me to believe that it might be something other than hemorrhoids? Did you ever say anything like that to her? A. Yes. But I did not mention malignancy or anything like that. Q. Were you trying to convince her to go get another opinion or another examination? A. No. I mean, I didn't. Q. Why not? A. Right now I don't recall why not, but-- Q. Okay. (Petitioner Exhibit 5, pages 117-22.) Each of Respondent's recountings of his discussion with T. M. on September 24 varies with regard to whether he recommended a referral or merely discussed the possibility of a referral in the future. The thrust of the deposition testimony is essentially is that Respondent was concerned about the possibility of rectal cancer and wanted T. M. to see a gastroenterologist, that T. M. resisted this recommendation, and that, in the face of this resistance, Respondent did not voice his concern about the need to rule out rectal cancer. This testimony is simply not credible. If he were making a firm recommendation of a referral, he would have voiced his explicit concerns, even if only as to the necessity at this time to rule out these more serious possibilities. If Respondent discussed a referral with T. M. at all, he mentioned nothing more than the possibility of a referral at some point in the future; interestingly, this is consistent with the additions to the September 24 medical records. Thus, the evidence is clear and convincing that Respondent did not refer T. M. to a gastroenterologist at the end of the September 24 office visit. The evidence is clear and convincing that Respondent did not prepare any other form of treatment plan, besides a referral, that would meet the applicable standard of care. As for the fraudulent alteration of medical records, the first question is whether Respondent discussed even a future referral with T. M. during her September 24 office visit. It is a close question, but the evidence is less than clear and convincing that Respondent did not discuss even the possibility of a future referral, just as the evidence is less than clear and convincing that Respondent fabricated the note on the super bill. However, the evidence is clear and convincing that the January 10 note fraudulently claims that Respondent recommended a gastroenterological consultation for a check-up and colonoscopy, but T. M. did not schedule an appointment. As for whether the medical records justify the scope and course of treatment, this issue is subsumed in the standard- of-care and fraudulent-records issues. To the extent that the records (i.e., September 24 entry) fail to reflect a clear referral to a gastroenterologist or alternative treatment plan, they do not justify the scope and course of treatment, but this issue is covered by the standard-of-care issue. To the extent that the records (i.e., January 10 entry) are fraudulent, this issue is covered by the fraudulent-record issue.

Recommendation It is RECOMMENDED that the Board of Medicine enter a final order finding Respondent guilty of one violation of Section 458.331(1)(t) and 458.331(1)(k), but not Section 458.331(1)(m), and imposing the following penalties for these two violations: 30 days' suspension followed by two years' probation, ten hours of continuing medical education in ethics, and a $10,000 fine. DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 2nd day of April, 1999. COPIES FURNISHED: Kristina L. Sutter John Terrel Senior Attorneys Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Grover C. Freeman Jon M. Pellett Freeman, Hunter & Malloy 201 East Kennedy Boulevard, Suite 1950 Tampa, Florida 33602 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Tanya Williams, Executive Director Board of Medicine Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0750

Florida Laws (2) 120.57458.331 Florida Administrative Code (1) 64B8-8.001
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DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs HAROLD GENE ROBERTS, JR., M.D., 00-001538 (2000)
Division of Administrative Hearings, Florida Filed:Fort Lauderdale, Florida Apr. 10, 2000 Number: 00-001538 Latest Update: Dec. 25, 2024
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DOUGLAS PHILLIPS vs DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF WORKERS` COMPENSATION, 94-000762 (1994)
Division of Administrative Hearings, Florida Filed:West Palm Beach, Florida Feb. 08, 1994 Number: 94-000762 Latest Update: Nov. 06, 1995

The Issue Whether Petitioner's proposed treatment, fluoroscopic radiofrequency thermoneurolysis, is experimental.

Findings Of Fact Petitioner, Douglas J. Phillips, Jr., D.D.S. (Dr. Phillips), is a licensed dentist in the State of Florida. Sometime in January, 1993, Dr. Phillips proposed using the procedure, fluoroscopic radiofrequency thermoneurolysis to treat a patient. This procedure involves destruction of tissue by the application of high heat, at approximately two hundred degrees Fahrenheit. A probe or cannula (insulated needle) is placed through skin, subcutaneous tissue and muscle to reach into where the tendon or ligament inserts to the bone or to where there is a small nerve root. An electrode goes through the insulated needle. Heat is then applied at approximately two hundred degrees. The treatment causes a small scar on the bone or destroys the nerve. The purpose of the procedure is to treat head and facial pain. The patient has been diagnosed with the degeneration of the temporomandibular joint on the left side, advanced degenerative osteoarthritis, and fibrous ankylosis with osteroarthritis of the left temporomandibular joint. She experiences head and facial pain. Dr. Phillips had performed fluoroscopic radiofrequency thermoneurolysis on the patient in September, 1991. CIGNA approved and paid for the procedure. The patient experienced relief from the pain for almost two years after the procedure was done. The patient is now experiencing pain again, and Dr. Phillips proposes to treat her again with fluoroscopic radiofrequency thermoneurolysis. By letter dated January 29, 1993, Intervenor CIGNA, informed Dr. Phillips that his request to perform the proposed treatment was not authorized. CIGNA'S basis for denial of approval was that the procedure was experimental and was not recognized by the American Dental Association. On or about August 27, 1993, Dr. Phillips requested that Respondent, the Department of Labor and Employment Security, Division of Workers' Compensation (Division), review the procedure pursuant to Section 440.13(1)(d), Florida Statutes (1993) and Rule 38F-7.0201, Florida Administrative Code. On November 22, 1993, the Division issued a determination that fluoroscopic radiofrequency thermoneurolysis was experimental. Dr. Phillips was taught the proposed procedure eight years ago by Dr. Ernst, a dental practitioner in Alabama. Dr. Phillips spent four days observing Dr. Ernst in Dr. Ernst's office and one week of training in a hospital under the direction of Dr. Ernst. The first procedure performed by Dr. Phillips was two years after his training with Dr. Ernst. Prior to performing the procedure, Dr. Phillips also attended a one hour lecture on the procedure given by another dentist. No other dentist in Florida practices this procedure. The American Dental Association has not endorsed the procedure. Radiofrequency thermoneurolysis is not on the American Dental Association's list of approved dental therapeutic modalities. It is not taught in any dental school or school of oral surgery. Dr. Phillips is not aware of any mention of the proposed procedure in any dental or oral surgical textbooks. Only four other dentists in the United States practice this procedure. There is no published written protocol regarding this procedure except for an article written by Dr. Wilk, which consists of a two paragraph treatment of the subject. Fluoroscopic radiofrequency thermoneurolysis is not listed in the American Dental Association's Current Dental Terminology, nor does the proposed treatment have a code assigned to it. Donna M. Reynolds is a supervisor of the policy section in the Rehabilitation and Medical Services Unit of the Division. When she received the request from Dr. Phillips to review the proposed procedure, she contacted three consultants for the Division: Dr. Richard Joseph, Dr. Martin Lebowitz and Dr. Davis. She received responses from Drs. Joseph and Lebowitz indicating that they considered the procedure to be experimental. Dr. Davis did not respond to her request. Dr. Joseph is a board certified oral and maxillofacial surgeon. When asked by the Division to review the proposed treatment, he reviewed all the documentation submitted by the Division, which included the documentation that Dr. Phillips had submitted in support of his request. Dr. Joseph also did a medline search. Medline is a computerized medical library search that is commonly performed by physicians to research or review all of the current medical literature. The medline search of 301,000 articles revealed only two or three articles relating to the use of radiofrequency thermoneurolysis. Dr. Joseph also consulted with Dr. Gremillion, the chairman of the Department of Facial Pain at the University of Florida, College of Dentistry. Based on his research, Dr. Joseph opined that the proposed procedure was experimental. It was Dr. Joseph's opinion that radiofrequency thermoneurolysis was outside the practice parameters in the general practice of dentistry. Dr. Lebowitz, an oral and maxillofacial surgeon and former co-director of the Facial Pain Clinic at the University of Florida, reviewed the documentation sent by the Division with its request to review the proposed treatment. The documentation included articles which had been supplied by Dr. Phillips to the Division. It was Dr. Lebowitz's opinion that none of the articles submitted by Dr. Phillips were scientifically acceptable based on the lack of blind studies, the quantity of patients being studied, and the lack of studies performed in different locations. In researching the issue, Dr. Lebowitz contacted Dr. Jim Ruskin, the head of the residency program in the Oral Maxillofacial Surgery Department at the College of Dentistry, University of Florida. Dr. Ruskin is considered a world authority on the management of facial pain. Dr. Lebowitz also spoke with Dr. John Gregg, a Virginia dental practitioner who previously ran the facial pain clinic at Chapel Hill at the University of North Carolina. Additionally, Dr. Lebowitz spoke with Dr. Castellano, an oral and maxillofacial surgeon in Tampa, Florida. Based on his research, Dr. Lebowitz concluded that radiofrequency thermoneurolysis was experimental. Dr. John Roland Westine is board certified in oral maxillofacial surgery and is a licensed dentist. He has studied the use of electrical energy in destroying tissue and has used electro-surgical equipment for thirty years. Dr. Westine is familiar with radiofrequency thermoneurolysis. Prior to the final hearing, he had reviewed the records of forty patients who had been treated with radiofrequency thermoneurolysis. It was his opinion that the proposed procedure was not safe and could cause the following problems: irreparable damage to vision, stroke, motor deficiencies, damage to facial nerves, nerve deficits, sensory deficits, abscess formations and parotid fistulas. Based on the preponderance of the evidence, Dr. Phillips has not demonstrated that the fluoroscopic radiofrequency thermoneurolysis is widely accepted by the practicing peer group, that the procedure is based on scientific criteria, or that the procedure is reasonably safe. Radiofrequency thermoneurolysis, including fluoroscopic radiofrequency thermoneurolysis, is an experimental procedure.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered determining that fluoroscopic radiofrequency thermoneurolysis is experimental and denying approval for the procedure. DONE AND ENTERED this 29th day of August, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-762 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Petitioner did not designate which portion of his proposed recommended order contained the proposed findings of fact and which portion contained the proposed conclusions of law; thus, I am unable to address the paragraphs which Petitioner may contend are his proposed findings of fact. Respondent's Proposed Findings of Fact. Paragraphs 1-5: Accepted in substance. Paragraphs 6-7: Accepted that that is what the statutes and rule say. Paragraph 8: The first sentence is accepted in substance. The second sentence is accepted to the extent that the Division does submit the documentation to consultants. The evidence established that the proposed treatment is not for use in the aid or confirmation of a diagnosis; therefore, the Division would not be required to submit the documentation to four consultants based on Rule 38F-7.0201, F.A.C. Paragraph 9: Accepted in substance. Paragraph 10: Accepted. Paragraph 11: Rejected as unnecessary. Paragraphs 12-15: Accepted in substance. Paragraph 16: Rejected as constituting argument. Intervenors Proposed Findings of Fact. Paragraphs 1-2: Accepted in substance. Paragraph 3: Rejected as unnecessary detail. Paragraphs 4: Accepted. Paragraph 5: The last sentence is rejected as unnecessary. The remainder is accepted in substance. Paragraph 6: Accepted in substance. Paragraph 7: Rejected as unnecessary detail. Paragraphs 8-9: Accepted to the extent that Dr. Phillips desires to use the proposed treatment. The remainder is rejected as unnecessary. Paragraph 10: Rejected as not supported by the greater weight of the evidence. Paragraph 11: Rejected as unnecessary. Paragraphs 12-15: Accepted in substance. Paragraph 16: Rejected as unnecessary. Paragraph 17: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. Paragraph 18: Accepted in substance. Paragraph 19: The first four sentences are accepted in substance. The remaining is rejected as unnecessary. Paragraphs 20-21: Accepted in substance. Paragraphs 22-31: Rejected as unnecessary. Paragraphs 32-35: Accepted in substance. Paragraph 36: Rejected as unnecessary. Paragraphs 37-39: Accepted in substance. Paragraphs 40-41: Rejected as unnecessary. COPIES FURNISHED: Robert R. Johnson, Esquire Post Office Box 3466 West Palm Beach, Florida 33402 Michael Moore, Esquire Office of the General Counsel Department of Labor & Employment Security 2012 Capitol Circle Southeast, Suite S-307 Tallahassee, Florida 32399-2189 Nancy Lehman, Esquire Neil J. Hayes, P.A. 224 Datura Street, Suite 601 West Palm Beach, Florida 33401 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152 Edward A. Dion Department of Labor and Employment Security General Counsel Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152

Florida Laws (2) 120.57440.13
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DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs RONALD A. FORD, M.D., 01-003164PL (2001)
Division of Administrative Hearings, Florida Filed:Lakeland, Florida Aug. 13, 2001 Number: 01-003164PL Latest Update: Jun. 05, 2002

The Issue Whether Respondent violated Section 458.331(1)(t), Florida Statutes, and, if so, what discipline should be imposed.

Findings Of Fact At all times material to this proceeding, Dr. Ford was a licensed physician in the State of Florida. His license, numbered ME 0051042, was issued on July 8, 1987. Patient R.A.L, presented to the Emergency Department of Winter Haven Hospital (Hospital) at approximately 1:35 p.m. on October 9, 1997. R.A.L.'s initial chief complaint was right flank pain since 9:00 a.m. that day. He reported a history of vomiting and diarrhea and stated that it felt like a kidney stone, of which R.A.L. had a history. Right flank pain is common with a patient having a kidney stone or kidney problem. R.A.L. was initially examined by Dr. David Siegel about 30 minutes after R.A.L. came to the emergency room. On physical examination palpation, there was no flank pain, but R.A.L. did have moderate pain diffusely throughout all areas of his abdomen. His abdomen was not acutely distended, and there were normal bowel sounds. On Dr. Siegel's order R.A.L. was given Toradol intravenously at 2:22 p.m. to relieve the pain. Toradol is a non-steroidal anti-inflammatory drug. R.A.L. was also given fluids intravenously. R.A.L.'s symptoms did not provide Dr. Siegel with a definitive diagnosis. Dr. Siegel ordered the following tests to be performed: a complete blood count, an amylase, a urinalysis, a PTPDT, and X-rays of the abdomen. The complete blood count was done to make sure that the patient was not anemic and to see if there was an elevated white blood count, which would be indicative of some type of infection or acute abdominal process. The complete blood count showed a significantly elevated white blood cell count of 24.3. The test also revealed that there was a left shift of a differential, which means that there was a high differential percentage-wise of segmented and banded white blood cells. The combination of the significantly elevated white blood cell count and the left shift indicated that there was an acute infectious process or an acute illness. The amalyse test measures a serum enzyme that is secreted from the pancreas. If the serum enzyme is elevated, it could be indicative of pancreatitis. The amalyse test was normal. The urinalysis would show whether there was an infection and would show some abnormalities if there were a kidney stone. R.A.L.'s urine checked out normal. At 3:00 p.m. R.A.L. voided. His urine was strained, but there were no kidney stones present. R.A.L. did not have an adequate response to the Toradol. He was given Demerol intravenously at 3:10 p.m. Based on the test results, Dr. Siegel was unable to make a definitive diagnosis. Because of R.A.L.'s clinical condition and his continued pain, Dr. Siegel ordered an abdominal Computed Tomography (CT) scan to see if he could further define what was going on in R.A.L.'s abdomen. Because of the absence of flank pain, the elevated white blood cell count, and the normal urinalysis report, Dr. Siegel did not rule out the possibility of kidney stones, but did feel that some abdominal process of significance was higher on the list of possible diagnoses than kidney stones. Dr. Siegel went off duty at 5:30 p.m. and turned the care of R.A.L. over to Dr. Ronald Barbour. Dr. Siegel gave Dr. Barbour an oral report of his findings and indicated that he was primarily concerned about a serious intra-abdominal process. Before finishing his shift, Dr. Siegel dictated a written report, which was immediately transcribed and placed in R.A.L.'s chart. Dr. Siegel expected Dr. Barbour to get the results of the CT scan and determine whether the results would allow a diagnosis. When Dr. Barbour came on duty, he went to see R.A.L., who told Dr. Barbour that he was still having some pain. R.A.L. asked for something to relieve the pain, and Dr. Barbour ordered Demerol for him. Dr. Barbour received a call from the radiologist, who said that the CT scan was consistent with a small bowel obstruction. Dr. Barbour told R.A.L. that it appeared he had a bowel obstruction and that he would be admitted to the Hospital. It is the Hospital's policy to contact a patient's primary care physician when a patient is being admitted to the Hospital from the Emergency Department. Dr. Ford was R.A.L.'s primary care physician. Dr. Ford was called by an Emergency Department nurse. Dr. Barbour spoke with Dr. Ford and advised him that the CT scan showed a small bowel obstruction. Dr. Ford stated that he would admit R.A.L. No mention was made of a surgical consult during the conversation. Dr. Barbour did not call a surgeon for a consult because normally if the patient has a primary care physician, the primary care physician would choose the surgeon should a surgical consult be necessary. R.A.L. was admitted to the Hospital at approximately 8:45 p.m. At that point, the responsibility for the care and treatment of the patient shifted from Dr. Barbour to Dr. Ford. Dr. Ford gave admission orders to Lorina Duncan, a nurse in the Emergency Department. The orders included administering Demerol and Phenergan as needed and giving the patient a saline solution intravenously. Dr. Ford also ordered tests to be done the following morning. The nurse's notes do not indicate that Dr. Ford told her to order a surgical consult for the next morning. R.A.L. was given Demerol and Phenergan in the Emergency Department at 9:55 p.m. At 10:10 p.m. R.A.L. was signed out of the Emergency Department to the medical/surgical floor of the Street Building, which is known as Street One. When R.A.L. was admitted to the Hospital, his abdomen was not distended. By the time he was admitted to Street One, his abdomen was distended and firm, and he was complaining of abdominal pain and nausea. When he was placed in his bed, he positioned himself in a fetal position, which is indicative of being in pain. He had no bowel sounds. While the nurse was getting a medical history, R.A.L. was lethargic and would drift off in the middle of the admission questions. His breathing was shallow and rapid. It took the nurse over an hour to complete the admission assessment on R.A.L. after he had come to Street One. At 11:50 p.m., R.A.L. was complaining that his pain had increased throughout his stomach. He indicated that his nausea was better. R.A.L. requested a patient-control anesthetic (PCA), which allows the patient to administer a metered dose of pain medication to himself by pushing a button. Around midnight the nurse had the hospital operator page Dr. Ford. He returned the nurse's call. She told Dr. Ford that R.A.L.'s abdomen was distended and that he was lethargic. R.A.L. had had no pain medication administered since being admitted to Street One, and his next dose of pain medication was to be given at 1:00 a.m. The nurse told Dr. Ford that R.A.L. was complaining of pain and wanted to have a PCA. Dr. Ford gave an order for a Demerol PCA, which would allow a five-milligram dose every five minutes with a maximum of 150 milligrams in four hours. The nurse told Dr. Ford that R.A.L. had been complaining of nausea. Dr. Ford asked whether R.A.L. had vomited, and she advised the doctor that R.A.L. had not. They discussed the possible use of a naso-gastric (NG) tube, which extends from the nose down to the stomach. It is used to aspirate the contents of the stomach, which decreases nausea and distention. Dr. Ford did not order a NG tube. At 12:30 a.m., October 10, 1997, the Demerol PCA was started. At 4:30 a.m., R.A.L. was complaining of shortness of breath. His abdomen was more distended and firm. Dr. Ford was paged, and he gave orders for lab work to be done. At 4:45 a.m. R.A.L. went into distress and died. Dr. Ford arrived at the Hospital about 5:05 a.m. A small bowel obstruction is a condition characterized by the inability of gastrointestinal fluid and material to pass through the small bowel due to some sort of blockage. Symptoms include pain, nausea, vomiting and a change in or cessation of bowel sounds. Small bowel obstructions generally cause the bowels to become inflamed and swollen, which can lead to a cut off of the blood supply to the bowel and result in the rupture of the bowel. If the bowel ruptures, it is a very acute, life-threatening situation which must be treated rapidly. Small bowel obstructions are generally classified as a partial or simple obstruction, and a complete or strangulated obstruction. A strangulated small bowel obstruction means the vascular system has been compromised and the blood supply to a part of the bowel has been cut off. If the blood supply has been cut off, the bowel tissue will become gangrenous, then necrotic, and finally die. Surgery can alleviate the strangulation. Strangulated small bowel obstructions represent 20 to 40 percent of all small bowel obstructions. Post-operative adhesions, bands of scar tissue which form inside the abdomen, are the predominate cause of strangulated bowel obstructions. Severe and constant pain, as opposed to cramping, intermittent pain, can characterize a strangulated small bowel. A strangulated small bowel is a very serious condition. Diagnosis requires obtaining a careful history, recognition of previous operations, a "hands on" physical examination and diagnostic testing. With a small bowel obstruction, a patient’s condition can change rapidly, sometimes in a matter of hours. Because any change in the condition of the patient can indicate a significant problem, serial abdominal examinations are important. Early detection and evaluation of complications from small bowel obstructions are also important. In the case of R.A.L., the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances would have been for Dr. Ford to come to the Hospital and physically examine R.A.L. when the patient was admitted to the Hospital under his care and after Dr. Ford was called by the nurse around midnight, apprising him of R.A.L.’s condition. Dr. Ford did not come to the Hospital to examine from the time R.A.L. was admitted to the Hospital under his care to the time R.A.L. died. A strangulated bowel is a surgical emergency. If a physician fails to diagnose and treat a strangulated small bowel, the patient will likely die. The physician will normally consult a surgeon when the patient presents with a small bowel obstruction. In performing a surgical consult, the surgeon will make the determination of whether and when to perform surgery. The sooner the surgeon is involved, the less the chances of compromising the patient’s bowel or general physical condition. Calling a surgeon early in the course of treating a patient with a small bowel obstruction is the prudent thing to do. In the case of R.A.L., the level of care, skill, and treatment, which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, would have been for Dr. Ford to call for a surgical consult when R.A.L. was admitted to the Hospital under his care. Dr. Ford did not call for a surgical consult from the time R.A.L. was admitted to the Hospital under his care to the time R.A.L. died.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Ronald A. Ford, M.D. violated Section 458.331(1)(t), Florida Statutes, placing him on two years' probation, imposing an administrative fine of $5,000, and requiring him to take five hours of continuing medical education in the area of risk management and 16 hours of continuing medical education in the area of diagnosing and treating abdominal and gastrointestinal disorders. DONE AND ENTERED this 5th day of February, 2002, in Tallahassee, Leon County, Florida. ___________________________________ SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 2002. COPIES FURNISHED: Robert C. Byerts, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 William B. Taylor, IV, Esquire McFarland, Ferguson & McMullen 400 North Tampa Street Suite 2300 Tampa, Florida 33620 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Florida Laws (3) 120.569120.57458.331
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DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs JEFFREY CHESTER ALLARD, M.D., 00-001263 (2000)
Division of Administrative Hearings, Florida Filed:Miami, Florida Mar. 27, 2000 Number: 00-001263 Latest Update: Mar. 29, 2001

The Issue Whether Respondent, a medical doctor, violated Section 458.331(1)(m), Florida Statutes, as alleged in Count I of the Administrative Complaint and, if so, the penalty or penalties that should be imposed. Whether Respondent violated Section 458.331(1)(t), Florida Statutes, as alleged in Count II of the Administrative Complaint, and, if so, the penalty or penalties that should be imposed.

Findings Of Fact Effective July 1, 1997, Petitioner is the agency of the State of Florida charged with regulating the practice of medicine pursuant to Section 20.34, Florida Statutes, and Chapters 455 and 458, Florida Statutes. Pursuant to the provisions of Section 20.43(3), Florida Statutes, Petitioner has contracted with the Agency for Health Care Administration to provide investigative and prosecutorial services required by the Division of Medical Assurance, councils, or boards, as appropriate. Respondent is and has been at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0053773. Respondent has been board-certified in radiology since 1989. In 1995, at the time of the screening mammogram at issue in this proceeding, Respondent was a radiologist at Fisherman's Hospital in the Florida Keys. At the times pertinent to this proceeding, Respondent and Fisherman's Hospital used a classification system to describe the results of mammograms. That classification, developed by the American College of Radiology in 1992, is referred to as BI-RADS, which is an acronym for Breast Imaging Reporting and Data System. The following six categories are used: Category 0: Need Additional Imaging Evaluation: Finding for which additional imaging evaluation is needed. This is almost always used in a screening situation and should rarely be used after a full imaging work up. A recommendation for additional imaging evaluation includes the use of spot compression, magnification, special mammography views, ultrasound, etc. Category 1: Negative: There is nothing to comment on. The breasts are symmetrical and no masses, architectural disturbances or suspicious calcifications are present. Category 2: Benign Finding: This is also a negative mammogram but the interpreter may wish to describe a finding. The interpreter might wish to describe findings while still concluding that there is no mammography evidence of malignancy. Category 3: Probably Benign Finding - Short Interval Follow-Up Suggested: A finding placed in this category should have a very high probability of being benign. It is not expected to change over the follow-up interval, but the radiologist would prefer to establish its stability. Data are becoming available that shed light on the efficacy of short interval follow-up. Category 4: Suspicious Abnormality - Biopsy Should Be Considered: There are lesions that do not have the characteristic morphologies of breast cancer, but have a definite probability of being malignant. The radiologist has sufficient concern to urge a biopsy. Category 5: Highly Suggestive of Malignancy - Appropriate Action Should Be taken: These lesions have a high probability of being cancer. On August 10, 1994, Dr. Sheldon Kushner referred his patient, P. D., to Fisherman's Hospital for a routine screening mammogram. The mammogram was interpreted by Dr. Wayne Moccia, a radiologist. Dr. Moccia's report reflected a dense fibroglandular pattern and scattered microcalcifications in both breasts. No masses or densities were identified. Dr. Moccia recommended a follow-up mammogram in six months for comparison if no prior mammogram was available. On July 21, 1995, Dr. Kushner referred P. D. to Fisherman's Hospital for a follow-up screening mammogram. Respondent was the radiologist who directed the taking of the mammogram views and subsequently interpreted them. Respondent performed two standard screening mammogram views for each breast - the cranial caudial view and the medial lateral oblique view. There is no allegation that these views were inappropriate. Respondent compared the results of the July 1995 mammogram to the results of the August 1994 mammogram and thereafter prepared a report, dated July 21, 1995. 2/ Respondent's report reflects that routine bilateral mammogram views were taken of the patient. The following reflects Respondent's findings: Comparison is from 8-10-94. There are several small clusters of calcifications, particularly in the left breast. The overall breast parenchymal density is increased, as before. No discrete mass. No change in the morphology of the calcifications. Under the part of the report marked "Conclusion", the following appears: Stable calcifications. As some of these are indeterminate in morphology, I would recommend a bilateral follow-up in one additional year to ensure continued stability. (Category 3). The reference to Category 3 is to the BI-RADS classification. According to Dr. Kushner's records, which were admitted into evidence without objection, P. D. was examined by Dr. Kushner on July 27, 1995. Dr. Kushner found P. D.'s breast examination to be within normal limits. P. D. returned to Fisherman's Hospital for a screening mammogram on August 14, 1996. At that time, Dr. Moccia compared the mammogram view taken on that date with the mammogram views taken August 1994 and July 1995. Dr. Moccia detected abnormalities which led him to conclude that there was a strong suspicion for malignancy of P. D.'s left breast. Dr. Moccia classified the 1996 mammogram as a Category 5 and recommended a biopsy. It was subsequently determined that P. D. had cancer in her left breast. There was a conflict in the evidence as to whether Respondent's interpretation of P. D.'s 1995 mammogram fell below the standard of care. Dr. Fueredi, Petitioner's expert, testified that Respondent's interpretation was below the standard of care and explained his reasons for his opinions. Dr. Foley, Respondent's expert, testified that Respondent's interpretation did not fall below the standard of care and explained his reasons for his opinions. Both of these experts are found to be highly qualified, and the testimony of each expert on this issue is found to be credible. There is no basis to credit Dr. Fueredi's testimony over that of Dr. Foley, or vice-versa. Petitioner failed to prove by clear and convincing evidence that Respondent failed to meet the standard of care in classifying P. D.'s July 1995 mammograms as BI-RADS Category 3. Petitioner also failed to establish by clear and convincing evidence that Respondent should have ordered immediate further testing for P. D. BI-RADS Category 3 suggests a short interval follow- up, without defining what constitutes a short interval. Again there was a conflict in the evidence as to whether Respondent's recommendation that P. D. be re-examined in a year fell below the standard of care. Dr. Fueredi testified that the interval for recommended follow-up should have been four to six months, and that Respondent's recommendation for a one-year follow-up fell below the standard of care. Dr. Foley testified that it was acceptable for Respondent to recommend the one-year follow- up. Both of these experts gave lengthy explanations for their opinions. Respondent's testimony as to this issue was conflicting. In his deposition testimony, Respondent testified that he intended to classify the mammogram as Category 3 BI- RADS, which meant to him that there should be a six-month follow-up. In his deposition, Respondent also testified that a recommendation for a one-year follow-up was inconsistent with a Category 3 classification. At the final hearing, Respondent testified that he was confused in his deposition, and that he intended to recommend a one-year follow-up because he knew that Dr. Kushner usually ordered mammograms for patients in P. D.'s age group every two years. This self-serving testimony given by Respondent at the final hearing lacks credibility and is rejected. Dr. Foley and Respondent (at the final hearing) did not convincingly explain how a normal follow-up interval for P. D. could also be appropriately considered to be an appropriate short interval follow-up within the meaning of BI- RADS Category 3. Respondent's deposition testimony that a recommendation for a one-year follow-up is inconsistent with a Category 3 classification is much more persuasive than his testimony on that issue at the final hearing. In resolving the conflicting testimony on this issue, the undersigned has concluded that Respondent's report contains an inconsistency which creates confusion as to the appropriate follow-up interval. The report fails to clearly reflect Respondent's examination results and recommendations for P. D.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the findings and conclusions contained in this Recommended Order. For the violation of Section 458.331(1)(m), Florida Statutes, it is recommended that Respondent be assessed an administrative fine in the amount of $500.00. DONE AND ENTERED this 14th day of November, 2000, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 14th day of November, 2000.

Florida Laws (4) 120.5720.3420.43458.331
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BOARD OF MEDICAL EXAMINERS vs. BERNARD JOSEPH ZUMPANO, 82-002836 (1982)
Division of Administrative Hearings, Florida Number: 82-002836 Latest Update: Jul. 03, 1984

Findings Of Fact Respondent is a physician licensed under the laws of the State of Florida, having been issued license No. 0030035. He became Board-certified in neurological surgery in January 1980. The CAT scan is a radiological diagnostic device which was developed and made available in approximately the mid-1970s. In the beginning, only the cranium could be scanned, and the scans were always presented as though the observer were looking down from the top of the head, which is how a neurosurgeon views the patient. In approximately 1977, scanners were improved so that it became possible to scan the whole body. The GE-8800, a body scanner, presents pictures of the head as though one were looking up from the patient's feet and not down from the top of the patient's head, which is exactly the reverse of how a neurosurgeon is used to seeing head x-rays and is exactly the reverse of how the neurosurgeon will be looking at the patient when he operates. In other words, until the development of body scanners, skull x-rays and early scans presented an image where the right side of the patient's head appeared on the right side of the film and the left side of the patient's head appeared on the left side of the film. The GE- 8800 scanner presents an image whereby the right side of the patient's head appears on the left side of the film and the left side of the patient's head appears on the right side of the film. During 1980, the only labeling provided by the GE-8800 scanner was the word "right," which was printed vertically in the left-hand margin of the film where all other identifying information, such as the patient's name and admission number, was provided. On April 27, 1980, Donna Ahrens was in an automobile accident in which she sustained severe head injuries. She was taken to Coral Reef General Hospital. When she arrived at the emergency room, she was comatose and decerebrate, meaning abnormal motor movements indicating no brain function. She responded only to deep pain. She exhibited the signs and symptoms of brain herniation. Her arms were thrusting outward. She had incomplete eye movements, particularly on the left side, indicating her brain stem was markedly compromised. She had a dilated left pupil. In short, she was critically injured. Upon examining her, Respondent's diagnosis was left temporal epidural hematoma and left temporal skull fracture. Respondent operated on her and evacuated a large left temporal epidural hematoma which was at the fracture site. After Respondent performed the initial surgery, Ahrens improved markedly. Her decerebration was reversed, and she was awake and able to obey commands. She became increasingly responsive over the next few days. The GE-8800 Mobile Scanner became available for use at Coral Reef General Hospital in the parking lot for the first time on May 1, 1980. Since a CAT scan is usually routine to assess the operative site postoperatively, Respondent ordered a CAT scan done on Ahrens. The scan was performed by Dr. Phillip Gassman. Not only was this the first time that the GE-8800 was used at Coral Reef General Hospital, but it was also the first and only scanner ever used by Dr. Gassman. The scan revealed a frontal lobe intra-cerebral hematoma. Gassman telephoned Respondent regarding the scan either very late during the evening of May 1 or very early during the morning of May 2, 1980, since the scan was performed late in the evening of May 1. It is difficult to recall the exact time of Gassman's call to Respondent, since Respondent receives a large number of telephone calls at home at night. On May 2, 1980, Respondent went to the x-ray department of Coral Reef General Hospital to look at the scan. Although eventually the report from the scan would become a part of the patient's chart and notations of the results of the scan would appear on Aherns' chart jacket, such would not be the case for another day or two for the reason that x-ray results in non-emergency situations would take between 24 and 48 hours to become a part of the patient's record. The report would first be dictated by the physician as soon as he had an opportunity to do so, and that dictation would then be sent to the transcription department. After transcription, the report would go to circulation and then from circulation would travel to the appropriate ward and would be filed in the patient's records. Respondent obtained the scan and placed it on the viewbox in the x-ray department. Out of training and habit, his eye went directly to the hematoma, which was very obvious and which appeared on the left side of the film. Respondent concluded that the hematoma was located in Ahrens' left frontal lobe not only because it was on the left side of the picture but also because all of the patient's symptoms had been on the left, her skull fracture was on the left, and Respondent had already evacuated one large hematoma on the left. Additionally, the scanners used at the other hospitals at which Respondent had privileges were conventional scanners on which the images were printed so that left is left and right is right. Finally, no one advised Respondent that the new GE-8800 scanner being used in the hospital's parking lot for the first time that day was the kind of scanner which prints images in reverse. Therefore, while his trained eye went immediately to the hematoma in the picture, the small series of letters vertically spelling the word "right" and located over in the left margin with other identifying print went unnoticed. At the time, no other directional labeling was used by the GE-8800 scanner. Upon misreading Ahrens' scan, Respondent notated her hospital records that she had a left frontal intracerebral hematoma. He gave Ahrens' husband the same information. On the following day, May 3, 1980, however, Ahrens became drowsier and less responsive. Respondent concluded that it was necessary to immediately evacuate the hematoma. Respondent operated on Ahrens' left side. Rather than discovering another hematoma, Respondent discovered instead contused tissue which was infarcted. In other words, the tissue was dead. He biopsied the tissue, and Respondent's operating room diagnosis was confirmed in a subsequent pathology report. After her second operation, Ahrens again improved. Pursuant to Respondent's orders, Ahrens underwent a second CAT scan on May 5, 1980, to routinely assess the operative site postoperatively. Once again, Respondent personally viewed the CAT scans. He saw the gelfoam used in the May 3 operation and the biopsy bed on the left. However, he saw that the hematoma was unchanged. He therefore realized for the first time that he had operated on the wrong side on May 3, 1980. He immediately told Ahrens' husband and offered to dismiss himself from the case. Respondent also notated the hospital records that he had erroneously operated on the wrong side. Since Ahrens' husband reaffirmed his confidence in Respondent and requested that Respondent continue as the neurosurgeon on the case, and since Ahrens once again became increasingly drowsy, on May 6, 1980, Respondent returned Ahrens to the operating room for the third time and performed a right frontal craniotomy with evacuation of a right frontal intracerebral hematoma. Thereafter, Ahrens improved with a slow but uneventful hospital course. Respondent caused no damage to Ahrens as a result of the May 3 operation, since the tissue which he removed was already dead. Further, none of the problems which Ahrens experienced prior or subsequent to her discharge from the hospital were related to any left frontal problem caused by Respondent incorrectly operating there. Additionally, Ahrens suffered no permanent injury as a result of Respondent's admitted error; rather, her problems are a result of the diffuse brain injury suffered by her immediately prior to Respondent saving her life. The GR-8800 scanner has since been modified so that when a print is viewed a large "R" is on the right side of the patient's head and a large "L" is on the left side of the patient's head. Less confusing labeling was required on the GE-8800 scanner for the reason that the same mistake Respondent made as a result of the inadequate labeling on that scan was being made by other neurosurgeons all over the country. As a result, speeches were made regarding the understandable confusion, articles were written on this new "left-right confusion," and negotiations began among radiologists, neurosurgeons, neurologists, and General Electric. In spite of the less confusing labeling, the same kind of mistake as Respondent made is still common and ongoing. The problem still exists because not all scanners adopted the new convention. It is, therefore, particularly confusing where a person works in one hospital with a scanner that presents an image as though looking up at the patient's head from the patient's feet and also works at another hospital with a scanner that presents an image of the patient's head as though one is standing at the patient's head looking down toward the patient's feet. Accordingly, at one hospital right is still right, but at another hospital right is left. In the June 1983 edition of Surgical Neurology, an editorial appeared entitled "Confusion Tomography." Subsequent to that article, General Electric made additional concessions, so that during 1984 General Electric will provide a software package which will permit modification of existing GE-8800 scanners so that one can select images to be portrayed in the cranial mode looking down from above or in the body mode looking up from below. When Respondent operated on the wrong side of Ahrens' head, he made a regrettable but understandable error. That error did not result from any negligence on his part, but rather resulted from a rapid changeover in state of the art medical technology. On May 18, 1980, 14-year-old Alesia Holt went down a water slide backward and hit her head against the side of a swimming pool, sustaining a skull fracture of the right temporal parietal area. She was taken to the emergency room at Coral Reef General Hospital at approximately 4:00 p.m. Site was conscious and responded to questions, if prodded. Her pupils were reactive to light. The emergency room record indicates: "Mother states child hit her head on the side of pool (right side of head). No loss of consciousness." The emergency room nurse's note states that the patient's mother specifically denied loss of consciousness. Respondent was called and examined the patient. He noted that she was displaying a waxing-and-waning level of consciousness but that she remained easily arousable to verbal stimulus. Her respiratory pattern was normal, and she moved purposefully in all four extremities. Holt's motor examination was normal. She moved full strength in all extremities without lateralyzing weakness. The deep tendon reflexes were present and symmetrical. There was no arm or leg drift. Her sensory pattern was also normal. However, she had ecchymosis--a black-and-blue mark--around her right eye and a dilated right pupil, due to global trauma or injury to the eyeball itself. Respondent's diagnosis was that Holt had a right temporal skull fracture and a probable concussion. He also wanted to rule out that she had an epidural hematoma and a direct trauma to the right eye. He therefore placed her in the intensive care unit for neurological observation, issuing orders that she be placed on intravertous fluids and that her head be elevated in order to decrease intracranial pressure. He noted at that time that Holt's prognosis was probably good. He also ordered that she be given a CAT scan when the mobile unit came to Coral Reef General Hospital the following day. Respondent left the hospital after telling the nurses to call him if there were a change in Holt's condition. On the morning of May 19, 1980, a series of confusing events took place. At 8:00 a.m., a nurse recorded in the nurse's notes that Holt's right pupil was dilated to 7 mm. while her left pupil measured 3 mm., and she further recorded on the neurological watch sheet that Holt's right pupil only measured 3 mm. while her left pupil was dilated to 7 mm. At 9:00 a.m., the nurse recorded in both the nurse's notes and on the neurological watch sheet that Holt's right pupil measured 3 mm. while her left pupil was dilated to 7 mm. Additionally, the nurse's note at 8:00 a.m. indicates that Holt was oriented, that she would follow commands, and also that she was very lethargic. Although the patient exhibited neurological deterioration and her condition worsened commencing at 8:00 a.m. on May 19, 1980, Respondent was not called until 10:00 a.m. He arrived at Coral Reef General Hospital at approximately 10:30 a.m. He immediately went to the intensive care unit and examined the patient. He also reviewed the records and saw that the records indicated the dilation was opposite the side of the fracture. He discovered the nursing notes were inconsistent with the neurological watch sheet. He already knew that Holt's was not a case involving a straightforward picture of a classic epidural hematoma. Respondent, after reading the record and examining the patient, suspected a hematoma and ordered an immediate CAT scan. He was told that the mobile scanner would arrive between 11:30 a.m. and 12:00 noon. Since Holt was still stable at that time, Respondent elected to wait for the scan. The scanner did arrive between 12:15 and 12:30 p.m., and Respondent was told it would be ready in approximately 15 minutes. When it was not ready at the appointed time, he went to the radiology department and demanded the scanner. He was told there was some trouble with the computer and the machine would be ready in no more than one-half hour. By 1:45 to 2:00 p.m., he told the radiologist he wanted the scan "now." He was told that the scanner was still not ready. Respondent medicated Holt with Mannitol and Decadron and waited for the scanner, which was ready at approximately 3:00 p.m. When Holt was taken to the mobile scanner in the parking lot at 3:00 p.m., Respondent told the hospital personnel that he was going to American Hospital, an eight-minute drive, and requested that he be notified immediately of the results of the CAT scan. Respondent called from American Hospital and was advised that Holt was still in the scanner. However, when the scan was completed at 4:00 p.m. no one telephoned the Respondent. Instead, the nurses returned Holt to the intensive care unit and set her back up on all of the monitors. Respondent received a call finally at 5:35 p.m. and was told that Holt was back in the intensive care unit and that she had an epidural hematoma on the right side. Respondent told the nurse to ready the operating room. Although the operating room was still not ready when he returned to Coral Reef General Hospital approximately 25 minutes later (he was delayed due to rush hour traffic), the operation did commence at approximately 6:30 to 6:45 p.m. Respondent performed a temporal craniectomy and evacuated the hematoma. Respondent examined Holt in the operating room after surgery: her decerehration had reversed, her pupils had come down, and she was moving purposefully. Respondent did not proceed with surgery on May 19 without benefit of a CAT scan because the conflicting symptoms and records made it impossible to know the location of the hematoma. He had few alternatives. He could have drilled up to eight burr holes on the sides of the patient's head. He decided against engaging in such "woodpecker surgery" for a number of reasons. First, such a procedure would not reveal the presence of an intracerebral hematoma. Second, in the event that he operated on the wrong side, the mass would push against the brain and cause a cross-herniation, probably fatal. Next, in the event that he could not make a proper diagnosis with the use of burr holes, he would still have to go back to the scanner and then back again to the operating room, thereby adding four hours to the procedure. If Respondent had operated without a CAT scan by using burr holes, he would have operated on the side with the dilated pupil, i.e., the left side. This would have resulted in an error, because the hematoma was on the right side. Respondent had two nonsurgical diagnostic options: (1) angiography or (2) CAT scan. Angiography is neither a simple nor a benign procedure. It requires a catheter being placed in the femoral artery, then being threaded into the carotid artery under fluoroscopic observation. An injection of dye is then made into the artery. In Holt's case, since the patient had significant head trauma where the blood-brain barrier had been breached, there were hazards inherent in the injection of the dye, a toxic substance. Further, although modern angiographic units allow multiple pictures to be taken both in the anterior and posterior projections and lateral projection with one injection of dye, the equipment at Coral Reef General Hospital at the time allowed only single direction pictures to be taken. Since Coral Reef did not have a biplane unit, the procedure would take approximately two and a half hours and would require four injections of dye which is at a near-toxic level. Since Halt's neurological picture was so confusing, since she did not present the typical signs of a right epidural hematoma, since the signs initially indicated that she might have an epidural hematoma on the right side but the nurse's notes no longer confirmed pathology on the right side, since the signs and symptoms became difficult to explain and would have indicated a lesion on the left side or even a bilateral lesion, and since society no longer accepts the concept of operating on the basis of clinical signs alone when tools such as CAT scans can avoid unnecessary surgery, Respondent correctly elected to finalize his diagnosis by use of the CAT scanner. Respondent could not have foreseen that the delay of a few minutes in obtaining the scan would stretch itself into a few hours. Even had it not, Holt could not be transferred to another hospital in order to obtain a CAT scan, since her condition was not stable enough to do so. As set forth above, when the scan confirmed the presence of a right epidural hematoma, Respondent operated and removed it. The patient was markedly improved after the surgery on the evening of May 19. Her thrusting movements were completely reversed, and she appeared to be doing quite well. On May 20, 1980, at approximately 6:00 a.m., the patient had a sudden change for the worse and deteriorated quickly. Respondent was not contacted by the hospital until noon, six hours later. Initially, Respondent thought that Holt was suffering from a recurrent hematoma or from pulp temporal lobe (a contusion which shows up 48 hours after injury). When he returned Holt to surgery on May 20, he discovered that her brain had swelled to such an extent that it was necessary for Respondent to perform a decompression procedure. Postoperatively, Holt failed to improve and remained deeply comatose. She was pronounced dead on May 22, 1980. Respondent was puzzled concerning the great increase in the amount of brain swelling Holt experienced after the surgery of May 19, 1980. It was quite sometime before the answer was discovered in the hospital records. When Respondent left the hospital the evening of May 19, Holt was intubated (had a breathing tube) and was on a ventilator. Because of her improvement during the night of May 19, the anesthesiologist became fearful that Holt might gag on the breathing tube and accordingly removed the tube without Respondent's knowledge or consent. The level of carbon dioxide in Holt's bloodstream accordingly increased, eventually causing the severe intracranial pressure and cerebral edema which preceded her death. By the time Respondent was summoned back to the hospital on May 20, another anesthesiologist had reintubated Holt, so that when Respondent returned he observed her intubated and on a ventilator, as she was when he had left. Even if Respondent had operated on Holt when he was notified of her condition and arrived at the hospital at approximately 10:30 a.m. on May 19, 1980, without waiting for a CAT scan, he still could not have saved her life since Holt had already decerebrated for two and a half hours, with irreversible damage attendant thereto. By the time Respondent was notified that Alesia Holt had deteriorated and decerebrated, no one could save her life.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained within the Administrative Complaint and dismissing with prejudice the Administrative Complaint filed against him. DONE and RECOMMENDED this 29th day of February 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 29th day of February 1984. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Alvin N. Weinstein, Esquire 311 Biscayne Building 19 West Flagler Street Miami, Florida 33130 Dorothy J. Faircloth, Secretary Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301

Florida Laws (2) 120.57458.331
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DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs RALPH GUARNERI, M.D., 06-002706PL (2006)
Division of Administrative Hearings, Florida Filed:Lauderdale Lakes, Florida Jul. 27, 2006 Number: 06-002706PL Latest Update: Dec. 25, 2024
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BOARD OF MEDICINE vs SHAMSHER SINGH, 91-003696 (1991)
Division of Administrative Hearings, Florida Filed:Port St. Lucie, Florida Jun. 14, 1991 Number: 91-003696 Latest Update: May 01, 1992

The Issue Whether Respondent committed the offenses described in the Administrative Complaint? If so, what disciplinary action should be taken against him?

Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Respondent is now, and has been since October 18, 1977, a physician authorized to practice medicine in the State of Florida under license number ME 0013979. He is a board certified dermatologist and dermapathologist. Respondent's practice is located in St. Lucie County. He is the only dermapatholgist in the county. E.M. is a former patient of Respondent. He is a fair complected retiree with red hair who has lived his entire life in areas that have warm and sunny climates. Fair complected individuals are more prone to develop skin cancers as a result of exposure to the sun than are their darker complected counterparts. E.M. had been treated for skin cancer on several occasions, dating back to some time between 1954 and 1960, before becoming Respondent's patient. In June of 1988, E.M. became concerned about two lesions that he had in a dime-sized area on his left forearm below the elbow. The lesions were scaly and crusted in texture, pea-sized in diameter, irregularly shaped, reddish in color and sensitive to the touch. E.M.'s concern led him to make an appointment to see Respondent. His initial visit to Respondent's office was on June 29, 1988. Because he was a new patient, E.M. filled out a medical history form before going into the examining room. Respondent did not give E.M. a complete physical examination. He examined only E.M.'s left forearm. His examination revealed the lesions about which E.M. was concerned. These were not the only lesions Respondent discovered on E.M.'s left forearm, however. By all appearances, the lesions on E.M.'s left forearm were pre- cancerous growths. There was no evidence of any ulceration, discharge, bleeding or other indication that these lesions were malignant. Having no reason to suspect that these lesions were cancerous, Respondent determined that they were solar keratoses, which are pre-malignant growths that appear on the superficial layers of sun damaged skin. E.M. had told Respondent before the examination that he had previously used Efudex, which is a chemotherapeutic drug used in the treatment of solar keratoses. Accordingly, at the time he made his diagnosis, Respondent knew that E.M. had a history of pre-cancerous growths. As a general rule, Respondent treats growths of the type he found on E.M.'s left forearm with cryosurgery1 and cauterization.2 If, after two or three such treatments, sufficient progress has not been made, he will then perform a biopsy to determine if there are cancerous cells in the deeper layers of the skin. In accordance with his usual practice, Respondent, during E.M.'s first visit on June 29, 1988, treated the lesions on E.M.'s left forearm, which Respondent reasonably believed to be pre-cancerous growths, with cryosurgery and cauterization. He then gave E.M. a cortisone cream to apply to the treated areas to aid the healing process. An appointment for a follow-up visit was made for July 13, 1988. Respondent next saw E.M. on July 13, 1988. His examination of E.M.'s left forearm on July 13, 1988, did not reveal any evidence of a malignancy, however, he did determine that there was a need to, and therefore he did, perform additional cryosurgery. Respondent sent E.M. home with a cream that contained not only cortisone to aid in healing, but an antibiotic as well to prevent against infection. An appointment for a second follow-up visit was made for July 27, 1988. E.M.'s next visit to Respondent was on July 27, 1988. Respondent's examination of E.M.'s left forearm on July 27, 1988, revealed that the treated areas were slowly healing. Based upon his examination, he had no reason to suspect a malignancy. Nor was there any indication that further cryosurgery was necessary. Respondent noted a flat, pigmented lesion in close proximity to the areas on E.M.'s left forearm that had been treated during his two previous visits. Respondent was not particularly concerned about this lesion,3 but he nonetheless mentioned to E.M. that it might be a good idea to have it biopsied to be on the safe side. E.M. responded that he preferred that such a biopsy not be performed. Respondent did not pursue the matter any further during the visit. Once again, Respondent gave E.M. a different cream to apply to the areas that had been treated. This time it was a pure antibiotic ointment. An appointment for a third follow-up visit was made for the morning of Wednesday, August 10, 1988. Respondent typically schedules biopsies and excisions on Wednesday mornings. E.M. cancelled his August 10, 1988, appointment with Respondent. He did not make another appointment. Accordingly, Respondent did not see E.M. as a patient again. In failing to biopsy the lesions on E.M.'s left forearm, which he had no reason to suspect were cancerous, Respondent did not act in a manner that was inconsistent with what a reasonably prudent physician with his training and experience would have done under like circumstances. More than a year later, in September, 1989, E.M. noticed that a lesion on his left forearm had opened and was draining. E.M. went to see Dr. Gary Marder, an osteopathic physician who specializes in dermatology. Marder suspected a malignancy. Accordingly, he performed a biopsy and scheduled E.M. for surgery. The initial biopsy report indicated an "invasive moderately differentiated squamous cell carcinoma." After Marder surgically excised the area, the pathologist revisited the matter and changed his diagnosis to an amelanotic melanoma, which is a rare type of melanoma4 that is characterized by an absence of pigmented cells. Pigmented lesions, like the one Respondent noticed on E.M.'s left forearm during E.M.'s July 27, 1988, visit, are not precursors of amelonotic melanomas. It was subsequently determined that the cancer had spread. Cancerous lymph nodes were removed from E.M.'s axilla in April, 1990, and from his elbow in November, 1990.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Medicine enter a final order dismissing the instant Administrative Complaint against Respondent in its entirety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of January, 1992. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 1992. 1/ Respondent uses liquid nitrogen to freeze and destroy the unwanted tissue. 2/ The cautery device that Respondent uses is battery-operated and produces a low current. It is particularly effective in removing rough, hard-crusted areas of skin. 3/ It did not even appear to be a pre-cancerous condition. 4/ Melanomas are one of the three types of skin cancers. Basal cell carcinomas and squamous cell carcinomas, which together account for 98% of all cancers, are the two other types. Of these three types of cancers, melanomas are the most destructive and the most likely to metastasize. 5/ Respondent has not been charged with failing to keep adequate medical records. 6/ Precisely what information E.M. provided on this form is unclear. 7/ The issue is not whether the practice described in this proposed finding is common, but whether it is acceptable. 8/ As noted above, the adequacy of Respondent's medical records are not at issue in the instant case. 9/ The Department did not advance this theory in the Administrative Complaint. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-3696 The following are the Hearing Officer's specific rulings on the findings of fact proposed by the Department: Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order First sentence: Accepted and incorporated in substance; Second and fourth sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact; Third sentence: To the extent that this proposed finding suggests that there was also a "pigmented lesion" on E.M.'s left forearm that Respondent observed during E.M.'s first visit to his office, it has been rejected because it is not supported by persuasive competent substantial evidence. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.5 First sentence: Accepted and incorporated in substance;6 Second sentence: Rejected because, even if true, it would have no bearing on the outcome of the instant case. Rejected because, even if true, it would have no bearing on the outcome of the instant case. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Rejected because, even if true, it would have no bearing on the outcome of the instant case. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Rejected because, even if true, it would have no bearing on the outcome of the instant case. First sentence: Accepted and incorporated in substance; Second sentence, fragment before comma: Accepted and incorporated in substance; Second sentence, fragment after comma: Rejected because, even if true, it would have no bearing on the outcome of the instant case. 11-12. Accepted and incorporated in substance. 13. Rejected because, even if true, it would have no bearing on the outcome of the instant case. 14-17. Accepted and incorporated in substance. Rejected because, even if true, it would have no bearing on the outcome of the instant case.7 First sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Accepted and incorporated in substance. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact; Third sentence: To the extent that this proposed finding suggests that Respondent believed that the pigmented lesion was a squamous cell carcinoma, it is rejected because it is not supported by persuasive competent substantial evidence. First sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact; Second sentence: Accepted and incorporated in substance; Third sentence: Rejected because it constitutes argument regarding the credibility of testimony rather than a finding of fact. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.8 First sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact; Second sentence: To the extent that this proposed finding states that "E.M. had had several prior biopsies . . . [and therefore] was aware of the reasons for a biopsy," it has been accepted and incorporated in substance. To the extent that it suggests that Respondent never recommended to E.M. that a biopsy be performed on the pigmented lesion that Respondent observed on E.M.'s left forearm during the July 27, 1988, visit and that, if such a recommendation had been made, E.M. "would have willingly submitted," it has been rejected because it is contrary to the greater weight of the evidence. Rejected because, even if true, it would have no bearing on the outcome of the instant case. Accepted and incorporated in substance. First sentence: Rejected because it is not supported by persuasive competent substantial evidence; Second and third sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer. First sentence: Rejected because it is more in the nature of a recitation of testimony than a finding of fact; Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. 28-29. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer. 30-34. Accepted and incorporated in substance. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Third sentence: Accepted and incorporated in subst ance; Remaining sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Rejected because, even if true, it would have no bearing on the outcome of the instant case. Rejected because it is contrary to the greater weight of the evidence. Rejected because, even if true, it would have no bearing on the outcome of the instant case.9 COPIES FURNISHED: Mary B. Radkins, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Shamsher Singh, M.D. 1701 Hillmoor Drive, #A-3 Port St. Lucie, Florida 34952 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792

Florida Laws (4) 120.57120.68458.331766.102
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DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs DENNIS A. CORTES, M.D., 10-010471PL (2010)
Division of Administrative Hearings, Florida Filed:Miramar, Florida Dec. 02, 2010 Number: 10-010471PL Latest Update: Dec. 25, 2024
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