The Issue Whether, as alleged in the administrative complaints, disciplinary action should be taken against Respondent's license to practice as a physician, based on separate violations of the following statutes for each patient as indicated below: DOAH Case No. 97-0337 Patient Statute T. D. 458.331(1)(g), 458.331(1)(t) F. R.-1 458.331(1)(g), 458.331(1)(m), 458.331(1)(t) S. M. 458.331(1)(g), 458.331(1)(t) F. R.-2 458.331(1)(g), 458.331(1)(m), 458.331(1)(t) T. M. 458.331(1)(g), 458.331(1)(t), 766.411 L. F. 458.329, 458.331(1)(j), 458.331(1)(m), 458.331(1)(t), 458.331)1)(x) C. G. 458.331(1)(k), 458.331(12)(m), 458.331(1)(n), 458.331(1)(t) DOAH Case No. 97-0338 J. S. 458.331(1)(m), 458.331(1)(q), 458.331(1)(t).
Findings Of Fact Based on the evidence presented in this proceeding, the following facts were found: Respondent is, and has been at all times material hereto, a licensed physician, having been issued license number ME 0056554 by the State of Florida. The Respondent was licensed in Florida in 1989. Prior to his licensure in Florida, he underwent residency training in OB/GYN at the State University of New York in New York City and St. Agnes Hospital in Baltimore, Maryland. Following his residency the Respondent performed a two-year fellowship in perinatology at the State University of New York in Syracuse. Patient J. S. On December 10, 1992, Patient J. S., a 19 year-old female, presented to Respondent for evaluation and medical care concerning her pregnancy. The patient was transferred from Orlando Birthing Center where she had her entire prenatal care. Upon presentation, Patient J. S. was at 42 weeks gestation. After examination in Respondent's office, Respondent subsequently made arrangement for admittance to Princeton Hospital for induction and delivery the following day. On December 11, 1992, at approximately 6:45 a.m., Patient J. S. was admitted to Princeton Hospital. At approximately 11:30 a.m., Pitocin, a legend drug, was administered by the staff as directed by Respondent. Pitocin, a derivative of the pituitary gland, is a commonly used substance to stimulate the uterus to contract. However, it is not risk free and must be used carefully. If the muscle is over-stimulated causing too much contraction, there can be interference with the blood supply to the placenta or it can cause the uterus to rupture. The use of Pitocin must be carefully monitored. Variability and reactivity of the fetal tracing was within normal limits at that time. At approximately 5:30 p.m., on December 11, 1992, Patient J. S.'s membranes were artificially ruptured and an internal fetal scalp monitor was placed. At approximately 7:30 p.m., the nursing assessment revealed that J. S. was 2 centimeters (cm) dilated, 70 percent effaced, and at minus 2 station. At approximately 10:10 p.m., Patient J. S. experienced a deceleration in the heart rate. At approximately 10:35 p.m., the patient experienced two more decelerations indicative of fetal distress. This resulted in the nurse on duty turning off the Pitocin. A vaginal examination revealed that Patient J. S. was still 2cm dilated, 70 percent effaced with the baby at a minus 2 station though the Pitocin had been running continuously for approximately 11 hours. During this period the Respondent was not on the premises. At approximately 11:50 p.m., Pitocin was re-initiated, and variable and late decelerations were again noted. Respondent was notified at approximately 1:10 a.m. and no new orders were given. Patient J. S.'s Pitocin was subsequently increased. Following the increase of Pitocin, Patient J. S. suffered an episode of variable decelerations which lasted approximately three minutes. The fetal heart rate was noted to be 64 beats per minute. Respondent was notified and Patient J. S.'s Pitocin was subsequently discontinued. However, Patient J. S. continued to suffer episodes of severe variable and late decelerations. In the early morning hours of December 12, 1992, Patient J. S.'s uterine contractions increased followed by late decelerations. Pursuant to Respondent's orders, Pitocin was restarted at 9:30 a.m. At approximately 10:00 a.m., Respondent arrived at the hospital. By approximately 1:45 p.m., poor variability was noted. At approximately 2:00 p.m., Patient J. S.'s fetal heart rate became unstable and decelerations became more profound. Evaluation revealed that the fetal heart tracing showed a distress pattern with repeated episodes of bradycardia and moderate to severe variable deceleration while the station of the baby never proceeded beyond minus 1 station. Respondent subsequently increased Pitocin. Despite poor fetal tracing, Respondent indicated that he intended a vaginal delivery. Patient J. S. was given an epidural with a bolus at approximately 8:00 p.m. At approximately 9:13 p.m., following four hours of full dilation, Patient J. S. was transferred to Labor and Delivery for a trial forceps set-up. Respondent applied Tucker/McLean forceps to the fetal head. At this time, fetal heart rate tracing was noted to be 80-90 beats per minute. Respondent subsequently determined that the infant could not be delivered and a Cesarean section was performed approximately 40 minutes later. The delay in delivery was the result of the need to wait for the surgical assistant to arrive, who was on-call, and for the anesthesia to take effect before he could operate. The infant was delivered with visible forcep marks including a skin lesion. The infant appeared to be emaciated and also displayed behavior indicative of a seizure shortly after delivery. A subsequent CT Scan revealed a subdural hemorrhage. The infant was later diagnosed as suffering from right facial nerve paralysis. Respondent failed to practice medicine within the acceptable level of care in that Respondent failed to appropriately monitor Patient J. S.'s progress during labor. Respondent failed to pursue the appropriate plan of treatment for Patient J. S. Patient J. S.'s poor response to Respondent's initial attempts to initiate labor indicated that Respondent should have pursued an alternative plan of treatment. Respondent failed to practice medicine within the acceptable level of care by failing to proceed to the hospital to evaluate Patient J. S.'s condition following the episode of bradycardia on the evening of on or about December 11, 1992. Respondent failed to practice medicine within the acceptable level of care by allowing Patient J. S. to continue in labor prior to the delivery of the infant given that the infant continued to suffer from unstable and variable heart rates. Respondent failed to practice medicine within the acceptable level of care by delaying delivery approximately four hours following full dilation. Respondent failed to practice medicine within the acceptable level of care by failing to appropriately apply forceps in attempts to deliver the infant. Respondent failed to maintain medical records which justified his course of treatment for Patient J. S. Respondent failed to appropriately utilize Pitocin. The continued usage of Pitocin following initial attempts to induce labor was inappropriate given Patient J. S.'s failure to progress during labor. Patient T. D. On or about August 24, 1992, Patient T. D., an 18 year- old female, presented to Respondent complaining of vaginal and abdominal pain during the previous two days. Respondent conducted a pelvic examination. Respondent did not observe vaginal bleeding. Respondent ordered the performance of an obstetrics ultrasound which revealed a viable 15-week intrauterine pregnancy. Respondent did not perform further tests to determine if Patient T. D. was experiencing premature labor. Patient T. D. was sent home and directed to go to the hospital if bleeding began. Later that evening, Patient T. D. presented to Princeton Hospital at which time she aborted. On August 26, 1992, Patient T. D. returned to Respondent for evaluation. Respondent performed an ultrasound and prescribed Methergine for bleeding. Patient T. D. presented with indications of premature labor on August 24, 1992. Respondent did not appropriately evaluate Patient T. D. for premature labor. Respondent failed to appropriately diagnose Patient T. D.'s condition or failed to pursue the appropriate plan of treatment. Patient F. R.-1 On September 20, 1992, Patient F. R.-1, a 38 year-old female, was hospitalized for abdominal pain and vaginal bleeding following a positive pregnancy test conducted at the hospital emergency room. During the hospitalization, Patient F. R.-1's, levels of human chorionic gonadotropin (HCG) declined, and she underwent a pelvic ultrasound. The test indicated that the patient had a non-viable pregnancy. Following her release from the hospital, on or about September 23, 1992, Patient F. R.-1, presented to Respondent with abdominal pain and bleeding and a history of a tubal ligation and non-viable pregnancy. Respondent performed a pelvic examination and asked her to return if the symptoms persisted. On or about October 8, 1992, Patient F. R.-1 presented to Respondent with the same symptoms, at which time Respondent initiated Patient F. R.-1 on Provera and Estrace. On or about October 15, 1992, Patient F. R.-1 presented to Respondent with irregular bleeding and abdominal discomfort. Patient F. R.-1 was advised to return in two weeks for evaluation. On or about October 29, 1992, Patient F. R.-1 returned to Respondent with continued complaints of abdominal pain. Respondent performed a pelvic ultrasound on Patient F. R.-1 which revealed normal follicular cysts in the ovaries. While treating Patient F. R.-1, Respondent failed to evaluate her HCG levels. Declining levels of HCG indicate that Patient F. R.-1 suffered an early miscarriage. Respondent failed to appropriately assess Patient F. R.-1's condition, failed to diagnose a probable early miscarriage, and failed to accurately observe the contents of the uterine cavity. Respondent failed to attain a conclusive diagnosis of Patient F. R.-1's condition. Respondent inappropriately treated Patient F. R.-1 with Provera and Estrace (hormones). The prescribing of hormones following an abortion is below the standard of care. Respondent failed to maintain medical records which justified his plan of treatment for Patient F. R.-1. Patient S. M. On or about July 13, 1992, Patient S. M., a 31 year-old female, presented to Respondent with complaints of pain and cramps. Patient S. M. presented with a history of two Cesarean sections, a tubal ligation, and an appendectomy. Patient S. M. presented subsequent to the performance of a pelvic sonogram, which suggested a small fibroid in the uterus. The sonogram was performed by another physician. On or about July 13, 1992, Respondent performed a second sonogram, and diagnosed multi-cystic ovaries and heavy menses. Respondent noted that Patient S. M.'s pelvic examination was normal. In the course of the office visit, Respondent scheduled M. for an exploratory laparotomy. On or about August 5, 1992, Patient S. M. presented to Princeton Hospital for the performance of an exploratory laparotomy, a lysis of adhesions, and a bilateral wedge resection of the ovaries with repair of the ovaries by chromic suture. Respondent performed the procedure. Following the operation, pathology report revealed normal ovaries. On or about July 13, 1992, Respondent did not misdiagnose Patient S. M.'s condition or fail to appropriately assess her complaints. Respondent failed to appropriately perform the surgical procedure on or about August 5, 1992. The repair of the ovaries by chromic suture is inappropriate for 1992 surgical techniques and will ensure the formation of adhesions post-operatively. Patient F. R.-2 On or about July 3, 1992, Patient F. R.-2, a 37 year- old female, presented to Respondent for the performance of a gynecologic examination. Respondent performed a normal pelvic examination. Respondent's examination revealed heavy menses, and he diagnosed yeast vaginitis and pelvic pain. Patient F. R.-2 presented with a history of several operations on her kidneys and gallbladder, an appendectomy, and a tubal ligation. Approximately six weeks later, Patient F. R.-2 returned to Respondent for the performance of a pelvic sonogram which revealed a single cyst on one ovary, and several cysts on the other ovary. Respondent subsequently scheduled Patient F. R.-2 for the performance of a wedge resection of the ovaries. On or about September 23, 1992, Patient F. R.-2 presented to Princeton Hospital for the performance of a bilateral wedge resection of the ovaries with repair of the ovaries by chromic suture, and lysis of minimal pelvic adhesions. The post-operative pathology report revealed sections of normal ovaries. Respondent did not appropriately diagnose, assess, and treat Patient F. R.-2's condition. Respondent failed to appropriately perform the surgical procedure on or about September 23, 1992. The repair of ovaries by chromic suture is inappropriate for 1992 surgical techniques, and will ensure the formation of adhesions post-operatively. Respondent failed to maintain medical records which justify his course of treatment for Patient F. R.-2. Patient T. M. On or about July 20, 1992, Patient T. M. presented Respondent with a complaint of irregular bleeding and pain. Respondent performed a pelvic examination of the patient and noted that Patient T. M. was taking birth control pills. On or about July 28, 1992, Patient T. M. returned to Respondent with continued abdominal and pelvic pain. In addition to his examination, Respondent performed an office ultrasound. Respondent made a diagnosis of polycystic ovarian disease. He also treated Patient T. M. for a urinary tract infection. On or about July 29, 1992, Respondent performed a second sonogram and noted no change in the pelvic cysts. Following the performance of the second sonogram, Respondent scheduled Patient T. M. for a wedge resection of the ovaries. On or about July 31, 1992, Respondent admitted Patient M. to Princeton Hospital for the performance of a wedge resection of the ovaries. The post-operative pathology report indicated that the removed portion of the ovaries were normal. Respondent failed to appropriately diagnose, assess, and treat patient T. M.'s condition. Respondent failed to attain a conclusive diagnosis of Patient T. M.'s condition. On or about July 31, 1992, Respondent inappropriately performed a surgical procedure on Patient T. M., which was not indicated, given that her ovaries were normal and some other reason was the likely cause of her bleeding. Respondent failed to appropriately perform the surgical procedure on or about July 31, 1992. The surgical techniques utilized by Respondent were inappropriate in that Respondent should have used a non-reactive suture. Respondent failed to maintain medical records which justify his course of treatment for Patient T. M. Patient L. F. On or about Friday, May 7, 1993, Patient L. F. was hired to work for Respondent as an insurance clerk. On or about Monday, May 10, 1993, Patient L. F. Reported for work at Respondent's office. Patient L. F. was agitated and nervous and complained of stomach pain. Patient L. F. left the office for the day around noon. On or about May 11, 1993, Patient L. F.'s second day of employment, L. F. reported to work, but went home at the beginning of the day complaining of stomach problems. She later reported back to work at approximately 12:15 p.m. Patient L. F.'s testimony that after she returned to work, Respondent inquired into how Patient L. F. was feeling; that Respondent invited Patient L. F. into an examination room for the purpose of performing an examination; that during the examination, Respondent touched Patient L. F.'s vaginal area with an ungloved finger; that Respondent placed his finger or fingers on L. F.'s genitalia area and started rubbing that area; that Respondent placed his palm on L. F.'s breast, then rubbed the side of her face with his knuckles, and told her how pretty she was; and that there was no other female present during the examination is not credible. On May 11, 1993, Respondent was in his office seeing patients until approximately 12:30 p.m. Shortly thereafter, he left the office and traveled to Princeton Hospital to do rounds. Respondent arrived in a Patient Lightfritz's room at approximately 1:00 p.m., and then examined at least two other patients. He then returned to the office, arriving shortly after 2:00 p.m.; Respondent began seeing patients for the remainder of the afternoon. Patient L. F. remained on the job for the remainder of the afternoon and left for the day at approximately 5:30 p.m. She did not return to work the next day, or thereafter. Respondent did not perform a physical exam of L. F. and she was, therefore, not a patient of Respondent. Patient C. G. On or about May 12, 1993, Patient C. G., a 29 year-old female, presented to Respondent with complaints of a backache and vaginal discharge. Respondent conducted an examination of Patient C. G., including a pelvic sonogram. Following the examination, Respondent administered an injection of Depo-Provera to the patient. Respondent contemporaneously prepared medical records on Patient C. G. justifying the course of treatment.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that in regard to DOAH Case No. 97-0337, Respondent be found guilty on Counts One, Two, Three, Four, Five, Six, Seven, Eight, Nine, Ten, Eleven, Twelve, Thirteen, and, it is RECOMMENDED that Respondent be found not guilty on Counts Fourteen, Fifteen, Sixteen, Seventeen, Eighteen, Nineteen, Twenty, and Twenty-one; and, it is RECOMMENDED that, in regard to DOAH Case No. 97-0338, Respondent be found guilty on Counts One, Two, and Three; and, it is further RECOMMENDED that the Respondent shall have his license to practice as a physician suspended for a period of one year; pay a civil penalty of $10,000, plus the costs of this prosecution; and the suspension be followed by a two-year period of probation, under such reasonable terms and conditions as the Board may require, including continuing medical education and evaluation. DONE AND RECOMMENDED this 1st day of April, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1998. COPIES FURNISHED: Gabriel Mazzeo, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Richard A. Simon, Esquire Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A. 201 East Pine Street 15th Floor Orlando, Florida 32801 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700 Pete Peterson, General Counsel Department of Health 1317 Winewood Boulevard Building 6, Room 102-E Tallahassee, Florida 32399-0700 Dr. Marm Harris, Executive Director Department of Health Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Dong Hack Koo, M.D., is a licensed physician in the State of Florida, having been issued license number ME 0027494. Koo was so licensed at all times material to the Amended Administrative Complaint. At all times material to this cause, Koo maintained an office at 121 East 8th Street, Jacksonville, Florida, 32206. On July 10, 1985, Diane Rabideau, an Investigator for the Department of Professional Regulation, inspected Koo's offices and found them to be unclean, with evidence of roach eggs present under a sink. Rabideau also found a rectal speculum and two vaginal speculums lying on a sink. Koo told Rabideau that the rectal speculum and the two vaginal speculums had been used. No evidence was presented to indicate how long the speculums had been on the sink. If such instruments are not cleaned quickly and properly following use, there is a high chance of spreading infection to the next patient to use the instrument. Such instruments should be placed in a cleansing solution and scrubbed, then wrapped and sterilized. It is the community practice to clean such instruments as soon as possible after use. According to Dr. Rosin, any physician who performs abortions in an unclean office with instruments lying around that have not been properly cleaned, has practiced below the community standard of care. However, no evidence was presented to show that Koo performed abortions under such circumstances. Koo does perform first trimester abortions in his office. It was not disputed that abortions are a medical and surgical procedure which can be dangerous. Emergency situations can arise during abortions and these emergencies require the presence of emergency equipment such as suction and the ability to start an intravenous medication. Koo does maintain suction equipment and intravenous solutions in his office. However, when possible he immediately transfers emergency patients to another facility. Koo does perform abortions in his office without the presence of an assistant to aid in emergency situations. According to Dr. Rosin, the standard of care in the community requires that an assistant be present during an abortion to assist the physician should an emergency situation arise. Additionally, according to Dr. Rosin, a physician who performs abortions without emergency equipment or without an assistant has failed to practice medicine with that level of care, skill, and treatment recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances. When Rabideau visited Koo's office on July 10, 1985, she obtained a sampling of drugs kept by Koo for dispensing to patients. The sampling revealed that a majority of the drugs had expired. However, no evidence was presented that this is a violation of Florida Statutes. Rabideau also found that Koo maintained a number of Schedule III, IV, and V, controlled substances in his office which he dispensed to patients. In dispensing these controlled substances, Koo used the instructions for use which are printed on the packaging. He also, at times, taped a small piece of paper to the packaging with his telephone number and the name of the patient. Koo did not completely label these controlled substances, which he dispensed, with his name and address, the date of delivery, directions for use, the name of the patient, and a warning concerning the transfer of the substance. Koo maintains no inventory of the scheduled controlled substances which are kept in his offices and dispensed to his patients. On August 6, 1985, Diane Rabideau again visited Koo's office. While Rabideau waited, a female patient by the name of Mary Green was seen by Koo and left with a prescription. Rabideau then asked Respondent to present the medical records on the patient, Mary Green. Koo was unable to present any medical records for the patient which he had just seen and to whom he had just dispensed medication. Koo's office procedure regarding patient medical records is to record histories and examination results on the patient medical records during the patient's visit. These medical records are kept in individual folders under the name of each patient. When a patient presents for treatment, the medical records for that patient are pulled and given to the doctor. After each visit, the patient's medical records are refiled. On or about March 16, 1986, pursuant to a subpoena from the Department of Professional Regulation, Koo provided the original medical records on ten (10) abortion patients. These original medical records were examined by John F. McCarthy, a questioned documents expert for the Florida Department of Law Enforcement. McCarthy's examination by electrostatic detection apparatus revealed that numerous indentations on the records superimposed with information from other records. For example, Exhibit 6 contained indentations from the writing on the face of Exhibit 10. Further, McCarthy found indentations on Exhibit 6 resulting from the writing on Exhibit 8. Thus, Exhibit 8 was on top of Exhibit 6 when it was prepared. Exhibit 8, however, is dated July 24, 1985, and Exhibit 6 is dated May 29, 1985. McCarthy's expert opinion is that at the time the various documents were prepared, they were on top of each other. It is therefore found that Exhibits 1-10, the original medical records on the ten named abortion patients, were not prepared at the time Koo saw the patients, but were instead all prepared at the same time, in response to the subpoena. It therefore must be found that the records were fabricated by Koo in response to the Department's subpoena. Prior to performing an abortion, a physician needs to verify whether the patient has Rh positive or negative blood type. The physician cannot rely on patients' representations that the Rh factor is positive or negative, but most obtain independent verification. This is because patients know that if they have Rh negative blood, they must receive a shot which is expensive. Koo relied on the patients' statements in ascertaining the Rh factor and did not obtain independent verification. In Dr. Rosin's expert opinion, the failure of a physician to obtain independent verification of the Rh factor poses a potential for harm to the patient and such failure is a failure to practice medicine with that level of care, skill, and treatment that is recognized in the medical community.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Medicine enter a Final Order finding Dong Hack Koo, M.D., GUILTY of violating Counts Two, Three, Four, Five, and Six of the Amended Administrative Complaint, and therein SUSPEND his license to practice medicine for a period of six (6) months during which he be required to successfully complete continuing education courses in maintaining, controlling, dispensing, labeling, and inventorying controlled substance, and in maintaining adequate patient records to justify the course of treatment. DONE AND ENTERED this 26th day of August, 1987, in Tallahassee, Florida. DIANE K. KIESLING 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 26th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1066 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding of Fact which so adopts the proposed finding of fact: 1 (1) ; 2 (2); 3 (3); 4 (4); 5 (4); 6 (4); 7 (4); 8 (5); 9 (6); 10 (6); 11 (9); 12 (7); 13 (8); 14 (9); 15 (10); 16 (11); 17 (11); 18 (12); 19 (13); 20 (13); 21 (15); 22 (14); 23 (14); 24 (16); 25 (16); 26 (16); 27 (16); 28 (17); 29 (18); and 30 (19) That portion of proposed finding of fact 12 which concludes that Respondent does not maintain emergency equipment in his office is rejected as unsupported by the competent substantial evidence. COPIES FURNISHED: Ray Shope, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dong Hack Koo, M.D. 121 East 8th Street, Suite 7 Jacksonville, Florida 32206 Dorothy Faircloth, Executive DIRECTOR Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact At all times material hereto, Respondent has been licensed as an osteopathic physician in the State of Florida, having been issued license number OS-0001053 in 1954. According to Respondent's office records for a patient named Barry Belikoff, Respondent saw Belikoff in his office on twenty-five (25) occasions between September 5, 1980, and July 24, 1981, and during this time wrote twenty-four (24) prescriptions for a total of 344 Quaaludes (Methaqualone) with a dosage of 300 mg. each. According to his patient records, Respondent also saw Belikoff on thirteen (13) occasions between October 31, 1981 and June 18, 1982 and wrote four (4) prescriptions for controlled substances, including Talwin, Restoril, and Percodan. Respondent was treating Belikoff for back pains and insomnia. According to expert testimony, the records kept by Respondent of this patient's office visits were inadequate and do not provide the required documentation which would support and explain the controlled substances prescribed in this case. In addition, a proper course of patient care would not include the on-going prescription of Quaaludes over almost a one year period at a rate of over one a day without a record of additional tests, x-rays, or neurological exams during this period. Belikoff's patient records do not show any such additional tests, x- rays or exams. Without such documentation in the patient's records, the prescriptions for controlled substances written by Respondent for Belikoff were without medical justification, excessive and inappropriate, according to expert testimony. Respondent was treating a patient named Lyndon Ellis during 1981 and 1982. Ellis was hospitalized on four occasions while under Respondent's care, and according to expert testimony the level of care and medical records for this patient, while hospitalized, were excellent. As a result of office visits by Ellis, Respondent wrote thirty-eight (38) prescriptions for controlled substances between April 20, 1981 and September 29, 1982 which included Percocet 5, Demerol, and Fiorinal. Ellis was being treated by Respondent for chronic headaches and pain from accident injuries, and also for a problem with his toe. However, according to expert testimony, the records kept by Respondent on Ellis' office visits were inadequate and do not provide documentation which would support and explain the controlled substances prescribed in this case. The absence of a thorough patient medical history, exam, evaluation, x- rays and lab tests in this patient's office records is explained by Respondent by the fact that this information was available in hospital records for this patient. Nevertheless, Respondent's office records for Ellis are totally inadequate. These office records do reflect that Respondent was aware of Ellis' overuse of controlled substances and the need to detoxify this patient on October 29, 1982. Yet he prescribed Percocet, a controlled substance, on five additional occasions after October 29, 1982. Without adequate documentation in the patient's records, the prescriptions for controlled substances written by Respondent for Ellis were without medical justification, excessive and inappropriate, according to expert testimony. Between July 14, 1980 and April 23, 1982, Respondent treated a patient named Alan Fogler. During this time Respondent wrote twelve (12) prescriptions for a total of 464 Percodan, a controlled substance. Respondent was treating Fogler for headaches, whiplash and a concussion reported by the patient, as well as allergies, but patient records reveal no x- rays, brain scans, lab work or neurological exams. According to expert testimony, patient records in this case are inadequate and do not justify the treatment rendered which consisted primarily of prescriptions for Percodan. Without adequate patient medical records, the prescriptions for controlled substances were without- medical justification, excessive and inappropriate, accordingly to expert testimony. While treating patients Belikoff, Ellis and Fogler, Respondent repeatedly reissued prescriptions for controlled substances without a substantiation of medical reasons in the patients' office medical records. According to expert testimony concerning the standards expected of osteopathic physicians in keeping office medical records on patients, Respondent did not perform with reasonable skill, nor meet the standards expected of physicians in this aspect of their practice. Vicki Cutcliffe, a deputy sheriff with the Broward County Sheriff's Office, saw Respondent in his office on March 30, April 11 and April 25, 1984 using the alias "Vicki Tarra". After taking a brief medical history which revealed that "Tarra" used alcohol daily, Respondent began treating her for situational anxiety by prescribing controlled substances, including Librium and Tranxene. On April 25 "Tarra" told Respondent she wanted some extra pills for her friend named Jo Ann and asked him to write her friend a prescription. Respondent said he could not do that, but did give "Tarra" a prescription for Tranxene and two refills, after initially giving her a prescription which allowed for only one refill. He told her that she could give some of the pills to her friend and then she could refill the prescription twice. Respondent knew that "Tarra" wanted the extra pills for a friend and that she would give them to her friend who was not a patient of Respondent. According to expert testimony, the treatment given to "Tarra" by Respondent, which consisted simply of prescriptions for controlled substances without adequate documentation of the reasons for this course of treatment in the patient's medical records, was totally inappropriate. Increasing a prescription when a patient says they want some extra pills for a friend is never justified and constitutes malpractice, according to expert testimony.
Recommendation Based upon the foregoing it is recommended that a Final Order be issued suspending Respondent's license for a period of two ( 2) years. DONE and ENTERED this 30th day of September, 1985, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 3 2301 (904) 488- 9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1985. COPIES FURNISHED: Stephanie A. Daniel, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 John W. Gaul, D.O. 11360 Tara Drive Plantation, FL 33325 Dorothy Faircloth Executive Director Board of Osteopathic Medical Examiners 130 North Monroe Street Tallahassee, FL 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 ================================================================ =
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as certain stipulations of fact, the following relevant facts are found: The respondent Ali Azima was born in Iran and graduated from the Medical College at Tehran University, where he received his M.D. degree in 1961. He is Board-certified as an obstetrician-gynecologist. His experience includes the delivery of approximately 5,000 to 6,000 babies, the performance of approximately 3,500 termination of pregnancy procedures and the provision of about 1,000 intrauterine contraceptive devices to patients. At all times relevant to the charges in these proceedings, respondent was licensed by the Board of Medical Examiners in the State of Florida. Prior to the instant charges, respondent has had no Administrative Complaints filed against him. On February 18, 1981, Christine Sellers (now Kuchar) was admitted to the emergency room of Ft. Myers Community Hospital with severe abdominal pain. On that occasion, she learned that she was pregnant. On February 19, 1981, she went to the Southwest Florida Women's Clinic in Ft. Myers, operated by the respondent, for the purpose of terminating her pregnancy. Upon her arrival at the Clinic, she was asked to pay the requested fee and to complete two forms, a form entitled "Consent for Abortion, Anesthesia and Other Medical Services" and a form entitled "Patient Registration Record." The only medical information requested on these forms, in addition to height, weight and eye and hair color, regarded allergies to foods or medication, medication currently being taken and past operations or serious illnesses. For the latter question, N. Sellers answered "rheumatic fever." Respondent spoke to her for a few moments prior to the procedure, and performed a quick pelvic examination. He then performed the procedure for termination of the pregnancy, gave her some medication and instructed her to come back the following week for a follow-up examination. Respondent did not send any tissue specimen obtained from the procedure to a pathologist for examination nor did he administer Rhogam to the patient subsequent to the procedure. According to Ms. Sellers, neither respondent nor his staff performed any blood work or determined her vital signs before or after the abortion procedure, nor did anyone inquire of her as to her blood type or Rh factor. She knew that her Rh factor was negative, but did not volunteer this information to respondent because she did not realize that a negative Rh factor was important for purposes of a termination of pregnancy procedure. Respondent's medical records for Ms. Sellers do not indicate that blood was drawn from her or that her Rh factor was determined or known. While the record does indicate that a physical examination was "normal," no further information is provided. Ms. Sellers did not desire to return to respondent for her follow-up appointment. Instead, she made an appointment with Dr. Randall Cowdin for the same day she was supposed to see the respondent, February 26, 1981. On that occasion, Ms. Sellers was given a complete physical examination and her blood type was drawn. Upon learning that she had not been administered Rhogam following her termination procedure by respondent, Dr. Cowdin gave her an injection of Mini-Rhogam on February 26, 1981. Approximately one week later, on March 5, 1981, Ms. Sellers returned to Dr. Cowdin's office with complaints of severe right lower quadrant abdominal pain, with some nausea and vomiting. Dr. Cowdin determined that she was bleeding internally due to a ruptured right ectopic pregnancy, and immediately admitted her to the hospital. Emergency surgery was performed, resulting in the removal of the patient's right Fallopian tube and ovary. Ectopic or tubal pregnancies are difficult to diagnose. However, had a specimen of the tissue extracted from Ms. Sellers as a result of the procedure performed by respondent been carefully examined, it would have revealed that the products of conception had not been obtained from the patient's uterus as a result of that procedure. This finding would have at least raised the suspicion of an ectopic pregnancy. It would be extremely rare for a woman to have both an ectopic and a normal pregnancy at the same time. The chances for such an event are one out of 30,000. When performing abortions, four other physicians in the Ft. Myers area routinely send a tissue specimen to a pathology laboratory for examination. The purposes for this are to detect abnormalities, to determine if the patient was indeed pregnant and to determine the existence of an ectopic pregnancy. It is the respondent's practice to examine the tissue himself, having had some residency training in pathology and feeling competent to perform such an examination. If he has any doubts, he then sends a tissue specimen to a pathologist for further examination. It is extremely important to do a blood screening on a patient undergoing a termination of pregnancy proceeding. A determination of the hemoglobin level is significant in order to assess the risk of a procedure performed in a non-hospital setting and to prepare for the possibility of anemia after the procedure. The Rh factor needs to be determined so that Rhogam may be administered to the Rh negative patient. This injection combats antibodies and prevents sensitization or isoimmunization problems in the event of future pregnancies or future transfusions where the patient could again come into contact with Rh positive blood cells. The performance of a procedure to terminate a pregnancy without a determination of the patient's hemoglobin level and Rh factor constitutes medical treatment which falls below an acceptable standard of care. The patient medical records for Holli Schmidt indicate that she first went to the Southwest Florida Women' a Clinic, Inc. on December 1, 1977, and Dr. Azima performed a termination of pregnancy procedure. Her "Patient Information Sheet" lists her blood type and Rh to be "A+." On her follow-up exam, an IUD was inserted. This device was removed in December of 1980. On February 23, 1981, Holli Schmidt again went to respondent's Clinic. She completed a "Consent for Abortion, Anesthesia and Other Medical Services" form, told respondent that her last menstrual period had been about six weeks ago and that she was experiencing breast tenderness and nausea. A pregnancy test was performed on her, and the results were negative. Respondent performed a physical exam, noting on her record "Normal," and a pelvic exam, noting "Normal, uterus is not enlarged." Respondent then inserted a Copper 7 IUD, and instructed Mrs. Schmidt to return in one week. Ms. Schmidt did return on March 5, 1981, still complaining of breast soreness and slight nausea. Respondent performed another physical exam, noting "Normal," and a pelvic examination, noting "String is not visible, uterus sounded and IUD is in situ." The medical records do not indicate that she was given another pregnancy test on March 5, but respondent testified that she was and that such was written in the "pregnancy test book," a document not offered for admission into evidence. The records dated February 23 and March 5, 1981, do not indicate that blood work was done or that vital signs were taken. Mrs. Schmidt was instructed to return on March 14, 1981, but did not do so. On April 27, 1981, Holli Schmidt went to the offices of Yankopolos, Waterman and Cowdin, each of whom specializes in obstetrics and gynecology. The record dictated by Dr. Yankopolus indicates that Mrs. Schmidt told him that respondent had examined her the week before. She also told Dr. Yankopolus that she was having trouble with her IUD and was not feeling quite right, having symptoms of pregnancy. Dr. Yankopolus examined her, did not see the IUD string and determined that she was approximately 12 weeks pregnant. Fetal heart tones, which can be detected at 9 1/2 to 10 weeks of pregnancy, were heard. Dr. Yankopolus did no tests to determine if the IUD was still present, but did explain to Ms. Schmidt the dangers of possible miscarriage and infection from the presence of the IUD during pregnancy. It was noted that Ms. Schmidt "will consider all of the alternatives." On May 1, 1981, Ms. Schmidt presented herself to Dr. Waterman "for termination of pregnancy with a Copper 7 in place." After an examination, Dr. Waterman estimated that she was then "12-14 weeks size," and Dr. Cowdin concurred. This meant that conception occurred 10-12 weeks prior to the May 1st examination. Dr. Waterman performed the termination of pregnancy procedure. While his medical records for May 1, 1981, do not specifically state that he removed the IUD during the termination procedure, Dr. Waterman recalls that he did. A later notation on her medical records indicates that on March 30, 1982, Ms. Schmidt stated "she specifically remembers my removing it." Prior to the insertion of an intrauterine contraceptive device, the most important factor to determine is that the patient is not pregnant. An IUD can be the source of infection, thus endangering the mother and the baby during pregnancy. The safest and most appropriate time to insert an IUD is during the woman's normal menstrual period. While there are exceptions to this method, especially when the physician knows and trusts the patient, it falls below an acceptable level of care for a physician to insert an IUD when the patient has not had a menstrual period for six weeks, has symptoms of pregnancy and has been engaging in unprotected intercourse. Colleen Lundy, a registered nurse, went to respondent's office on March 5, 1981, for the purpose of undergoing a termination of pregnancy procedure. She completed the consent form and "Patient Registration Record" and spoke briefly with the respondent regarding some questions she had as to the procedure. Prior to the beginning of the procedure, no vital signs were taken and no blood work was performed. Respondent's medical record for Ms. Lundy simply indicates that the physical examination was "Normal." After respondent inserted the speculum, he requested his assistant to bring him Betadine, an antiseptic. The assistant informed him they were out of Betadine, and respondent replied, "use alcohol." Thereafter, patient Lundy felt a severe burning and was feeling very uncomfortable with the whole procedure. She informed respondent that she was not going to have the procedure, respondent removed the speculum and left the room, she dressed, received a refund of her fee and left. The burning sensation abated quickly. The following day, patient Lundy received a termination of pregnancy procedure at another clinic. Respondent admits that he told his assistant that alcohol could be used, but denies using any alcohol on patient Lundy. He further states that he did not perform the blood work because he did not perform the abortion. Darlene Baker first underwent a termination of pregnancy procedure performed by respondent in January of 1981. At that time, she completed a "Patient Registration Form," which inquired as to her height, weight, eye and hair color, allergies, prior operations or illnesses and current medications. She returned for another procedure on December 23, 1982, which was performed by the respondent. She received no counseling prior to the performance of this procedure, but did sign a consent form and a form explaining the procedure and risks for abortion. No further written information was obtained from her. While patient Baker does not recall that a physical examination or blood work was performed prior to the performance of the termination procedure, respondent's medical records for this patient indicate that a physical and pelvic examination were performed, that a blood pressure reading was taken and that the patient's "Rh is positive." Respondent did not send a tissue sample of the products of conception to a pathologist for further examination. Other physicians specializing in obstetrics and gynecology in the Ft. Myers area make it a routine practice to counsel abortion patients prior to the performance of the procedure. During the counseling session, the risks of the procedure involved are examined and other options for the management of an unwanted pregnancy are explored. Sufficient time is afforded between the counseling session and the performance of the termination procedure for patient reflection. The physical examination performed by these physicians includes the taking of vital signs, blood pressure, blood tests and a check of the abdomen, heart and lungs. Subsequent to the procedure, the products of conception are sent to a pathology laboratory for examination and the results are made a part of the patient's medical records.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found guilty of violations of Section 453.331(1)(t), Florida Statutes, and that his license to practice medicine in Florida be suspended for a period of one (1) year. Respectfully submitted and entered this 24th day of July, 1984, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1984. COPIES FURNISHED: J. Riley Davis, Esquire 225 S. Adams St. Tallahassee, Florida 32301 Stephen Marc Slepin, Esquire 1114 E. Park Ave. Tallahassee, Florida 32301 Ellis S.Rubin, Esquire 265 NE 26 Terrace Miami, Florida 33137 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 N. Monroe St. Tallahassee, Florida 32301 =================================================================
The Issue The issues in this case are whether Respondent violated section 458.331(1)(m), Florida Statutes, by failing to keep legible medical records that justify the course of treatment of a patient, as set forth in the Second Amended Administrative Complaint, and, if so, what is the appropriate sanction.
Findings Of Fact The Department is the state agency charged with regulating the practice of medicine pursuant to section 20.43, chapter 456, and chapter 458, Florida Statutes (2015). The Board of Medicine is charged with final agency action with respect to physicians licensed pursuant to chapter 458. Dr. Velilla is a licensed physician in the state of Florida, having been issued license number ME 98818. Dr. Velilla's address of record is 12709 Miramar Parkway Miramar, Florida 33027. Dr. Velilla has been a medical director at Evolution MD since the summer of 2010. Dr. Velilla was licensed to practice medicine in the state of Florida during all times relevant to Petitioner's Second Amended Administrative Complaint. Dr. Velilla is Board-certified in internal medicine by the American Board of Internal Medicine. On or about December 29, 2010, Patient C.A. consulted with Dr. Velilla regarding possible abdominal liposuction and fat transfer to the gluteal area. These are cosmetic surgery procedures, undertaken with the object of enhancing the patient's appearance, and are purely elective. On or about February 10, 2011, Dr. Velilla performed an evaluation of Patient C.A. and ordered routine pre-operative laboratory studies. The laboratory report prepared by First Quality Laboratory indicated readings within normal limits for blood urea nitrogen (BUN) at 19.8 and creatinine serum at .7, but an abnormally high BUN/creatinine ratio reading of 30.43. It showed an abnormally high globulin reading at 3.40, an abnormally low INR reading of .79, an abnormally low MCH reading of 25.2, and an abnormally low MCHC reading of 30.7. On or about February 15, 2011, Dr. Velilla reviewed Patient C.A.'s pre-operative laboratory report results. He placed a checkmark next to the high BUN/creatinine reading and the low INR reading. He wrote "Rev." with the date and signed his name on each page. Dr. Velilla testified that he performed a glomerular filtration rate test, a calculation used to check on the functioning of the kidneys, and the result indicated normal renal function. He testified that a BUN/creatinine ratio outside of the normal range could be caused by several factors, and that after his assessment, the reading was not of concern to him in proceeding to surgery. Dr. Velilla did not make any notation on Patient C.A.'s medical records to indicate how or why he concluded that the abnormal BUN/creatinine ratio reading was not of concern. On February 24, 2011, Patient C.A. filled out a "General Consent" form. Patient C.A. agreed to disclose her medical history, authorized the release of medical records for certain purposes, agreed to use skin care products as directed, and acknowledged possible side effects from the use of skin care products. The form also stated, "I understand that Cesar Velilla, M.D. P.A. services generally consist of a series of treatment [sic] to achieve maximum benefit, and this consent shall apply to all services rendered to me by Cesar Velilla, M.D., P.A., including ongoing or intermittent treatments." On February 24, 2011, Patient C.A. filled out a "Medical History" form. Patient C.A. indicated she was not under the care of a dermatologist, did not have a history of erythema ab igne, was not on any mood-altering or anti-depression medication, had never used Accutane, had never had laser hair removal, had no recent tanning or sun exposure, had no thick or raised scars from cuts or burns, and had never had local anesthesia with lidocaine. The form did not ask for information about any prior abdominal procedures, previous liposuction treatments, multiple pregnancies, or abdominal hernias. On February 24, 2011, Patient C.A. signed a "Consent for Laser-Assisted Lipolysis Procedure SLIM LIPOSCULPT." The form did not include consent for fat transfer to the gluteal area or describe risks or possible complications of that procedure. Patient C.A. also signed a "Consent for Local Aneshesia [sic]" form. As Dr. Obi testified, the risks from a fat transfer procedure are generally the same as those of the liposuction procedure; although with a fat transfer, you have additional potential for fat embolism. On or about February 24, 2011, Dr. Velilla performed liposuction of the abdomen and thighs with fat transfer to the gluteal area on Patient C.A. at Evolution MD. Patient C.A.'s liposuction was not the "Slim Liposculpt" laser-assisted procedure. The testimony was clear that the "Slim Liposculpt" procedure would use a laser to melt the fat before liposuction, which could not be done on Patient C.A. because the fat was to be transferred. There was testimony that a laser could be used to improve skin retraction, however. As Dr. Velilla testified, Patient C.A. had requested the fat transfer in addition to the liposuction prior to the procedure. Dr. Velilla discussed the risks of both the liposuction and the fat transfer with Patient C.A., and she consented to have the procedure done. As Dr. Velilla testified, this consent was later documented on the operative report prepared sometime after the surgery and dated February 24, 2011, the date of the surgery. Dr. Velilla's testimony was supplemented by the operative report, which stated in pertinent part: The patient requested liposuction with fat transfer and understood and accepted risks including but not exclusive to bleeding, infection, anesthesia, scarring, pain, waves, bumps, ripples, contour deformities, numbness, skin staining, fluid collections, non- retraction of the skin, deep venous thrombosis, fat embolism, pulmonary embolism, death, necrotizing fasciitis, damage to surrounding structures, need for revision surgery, poor aesthetic result and other unexpected occurrences. No guarantees were given or implied and the patient had no further questions prior to the procedure. Other options including not having surgery were discussed and dismissed by the patient. The operative report adequately documented Patient C.A.'s earlier oral informed consent for liposuction with fat transfer. Patient C.A. did not execute a written informed consent for the fat transfer prior to the procedure. Dr. Velilla also noted in the operative report that the "patient physical examination and pre-operative blood work were within normal limits." Neither the operative report nor any other documentation indicated whether a complete physical examination or a focused physical examination was given, or what that examination consisted of. Patient C.A. was scheduled for a second liposuction procedure on her arms on February 26, 2011. It was decided to defer the procedure on her arms to this later date in order to keep the amount of lidocaine at a safe level during the initial procedure. On or about February 26, 2011, Patient C.A. presented to Evolution MD with complaints of nausea and mild pain. Dr. Velilla was not at the Evolution MD office. Mild pain is to be expected on the second day after a fat transfer procedure, and nausea can be anticipated in some patients who are taking opiods, as had been prescribed for Patient C.A. There was insufficient competent evidence in the record to support a finding that Patient C.A.'s symptoms were unusual or that Dr. Velilla was ever informed of more serious symptoms in Patient C.A. that day. Dr. Velilla spoke by telephone with an Evolution MD staff member about Patient C.A.'s symptoms and instructed the staff member to ask Patient C.A. to wait for his arrival at the office. A "Progress Note" signed on February 26, 2011, by Ms. Amanda Santiago, of Dr. Velilla's office, indicated that Patient C.A. said the pain and nausea were "due to the Vicodin." The note indicates that Dr. Velilla was called, that he stated he might stop the Vicodin and start Patient C.A. on Advil or Tylenol for pain, and that he asked that Patient C.A. be prepared for surgery. The note does not indicate that Dr. Velilla directed that Patient C.A.'s vital signs be taken, or that they were taken. The note states that Patient C.A. decided not to have the procedure on her arms done and that Dr. Velilla was again called. The note indicates that he asked the staff to take pictures of Patient C.A. and ask her to wait for him to arrive. Dr. Velilla did not order Evolution MD staff to take Patient C.A.'s vital signs. Her vital signs were not recorded by Evolution MD staff on February 26, 2011. Contrary to Dr. Velilla's request, Patient C.A. left Evolution MD on February 26, 2011, prior to Dr. Velilla's arrival at the office, and Evolution MD staff were unable to contact her. On or about February 27, 2011, Patient C.A. presented to Coral Springs Medical Center where she was admitted with a diagnosis of severe dehydration, intravascular volume depletion, diarrhea, nausea, and vomiting. Subsequently, Patient C.A. was admitted to the intensive care unit. Patient C.A. remained hospitalized until March 31, 2011. Standards and Ultimate Facts Dr. Obi is a surgeon specializing in plastic surgery. He does not conduct laser-assisted liposuction, but performs what is known as "wet" or "super wet" liposuction, as was performed by Dr. Velilla in this case. He has been a Diplomate of the American Board of Plastic Surgery since 1982. Dr. Obi reviewed Patient C.A.'s medical records from Evolution MD, other related records, and the Second Amended Administrative Complaint. Taken as a whole, Dr. Obi's testimony with respect to the medical history documented for Patient C.A. was not clear and convincing. He testified that Patient C.A. was undergoing a significant operative procedure and that it involved multiple anatomic areas. He also noted that the history did not include information as to whether Patient C.A. had prior abdominal surgical procedures, earlier liposuction, multiple pregnancies, or abdominal hernias. He testified that this information could indicate increased risks of injury and that this relevant history must be documented. Dr. Obi stated that in his opinion the patient history did not meet the minimum standards of the medical records rule. On the other hand, Dr. Obi seemed to have only a partial understanding of what the medical records rule required, and he had no opinion on whether the patient history justified the course of treatment of Patient C.A.--the actual statutory standard that Dr. Velilla was charged with violating in the Second Amended Administrative Complaint: Q. What does the rule say? A: What does the rule say? The medical record rule I believe requires – I can't tell you verbatim what it says. It requires adequate documentation so that in the event that the care of a patient has to be transferred to another healthcare professional the documentation is adequate that the patient, that the professional could immediately step in and take over. Q: Okay. You believe that's part of either the statute or the rule enacted by the Board of Medicine? A: If the Board of Medicine is the group responsible for the medical record rule, then I would say yes. Q: Okay. Have you reviewed what has been alleged in the amended administrative complaint, or second amended administrative complaint, as to the statutory provision for medical record adequacy? A: The statutory, I'm not sure that I have. * * * Q: And do you believe that the records fail to justify the course of treatment of the patient with those history findings? A: That's not what I said. I didn't say it failed to justify. What I said is it wasn't complete. Q: Okay, do you have an opinion as to whether the records fail to justify the course of treatment of the patient? A: No. Q: You don't have an opinion. Okay, thank you. In contrast, Dr. Soler testified that in his opinion the patient history that was documented as part of Patient C.A.'s medical records did justify her course of treatment. With respect to the physical examination, Dr. Obi noted that there was only a single line in the operative record stating that the physical examination was within normal limits. He noted that the documentation did not indicate what had been examined and did not record any specific findings or results of any examination that was conducted. However, he never offered an opinion that the record of the physical examination failed to justify the course of treatment of Patient C.A. Dr. Soler testified that in his opinion, the record of the physical examination did justify the course of treatment of the patient. Petitioner did not show by clear and convincing evidence that the documentation of Patient C.A.'s medical history and physical examination failed to justify her course of treatment. Dr. Obi testified that the medical records should have contained more evaluation or explanation of the abnormal laboratory report results: Q: And so was the check mark, when coupled with that note in the pre op, or in the operative report, sufficient documentation of Dr. Velilla's evaluation of the of the patient's pre-operative lab results? A: In my opinion, no. Q: And what do you base that on? A: If you have an abnormal result, I think it is incumbent on you – it – depending on what the abnormality is, and depending on what your interpretation of that abnormality is, it's incumbent to explain it. Sometimes you need to repeat the tests. Sometimes it may be perfectly within normal limits, but on the laboratory sheet, if it says that it's high, or out of the range of normal, I think other than just check mark, I think you just acknowledge what your thoughts are. Q: And do you remember if there was anything abnormal in Patient C.A.'s pre-operative laboratory results? A: There was one area that I commented on. That was the BUN-creatinine ratio. Q: And what is the BUN-creatinine ratio? A: It's just a ratio of some parameters dealing with kidney function. Q: Okay, and what does that lab result tell you about a patient, if anything? A: Well, you know, it can call your attention to the area, I mean, it can tell you, you know, that the patient has some renal issues. It can tell you that the patient is, you know, potentially dehydrated, it can tell you that the patient, you know, is within normal. But if the values are – if one value is high and the other one is low, it may give you a, a high reading. And that's understandable, but all you need to do is document that. It was Dr. Obi's opinion that the medical records failed to contain a sufficient evaluation or explanation of the abnormal BUN/creatinine ratio laboratory result. He acknowledged that the abnormal result was not necessarily indicative of a renal problem. However, Dr. Obi also testified: Q: Okay. Do you have an opinion as to whether those records are adequate to justify the course of treatment of the patient? A: The failure to document the thought process on this ratio would, in and of itself, not prevent or preclude the operative procedure from being done, if that's your question. At best, Dr. Obi's testimony was thus ambiguous as to whether or not failure to include an explanation of the abnormal laboratory result failed to justify the course of treatment of Patient C.A. Dr. Soler testified that no other documentation or chart entry was required to address the lab report value in order to justify proceeding with the surgery. Dr. Sandler testified that the BUN/creatinine ratio was a renal-related test, but does not itself indicate kidney malfunction. Dr. Sandler also testified that in his opinion, no other documentation was needed prior to proceeding with the surgical procedure. The Department did not clearly and convincingly show that the documentation in the medical records relating to abnormal laboratory results failed to justify the course of treatment of Patient C.A. Dr. Obi testified that Dr. Velilla had a duty to order the taking of Patient C.A.'s vital signs since he was not yet in the office when she returned on February 26, 2011, the date the second liposuction had been scheduled. He testified that if the medical records rule "requires doing what's appropriate at each visit," then Patient C.A.'s records did not meet the requirements of that rule. He testified that if Patient C.A. was an "outlier" in that her symptoms were uncommon, the standard of care required that Patient C.A.'s vital signs be taken. Dr. Obi admitted that there was no documentation in the medical records to suggest that Dr. Velilla had ordered the staff at Evolution MD to take Patient C.A.'s vital signs, but he testified that the order should have been given and that it should have been documented. Dr. Obi testified that there was no written documentation of an informed consent for the fat transfer and that the consent for the "Slim Liposculpt" procedure was consent for a procedure that was not done. Again, Dr. Obi seemed unfamiliar with the specific requirements of the medical records rule: Q: And is, is the –is a written documentation of the fat transfer required by the medical record rule in this case? A: In terms of the actual requirement, it would be my opinion that it should be required. Now, I can't say if it says that for every procedure, every surgical procedure, every invasive procedure, that a written consent must be documented; because obviously, you now, the patient consented. It's implied that the patient consented because she showed up for the procedure. Dr. Obi testified that he was aware that the operative report contained statements that Patient C.A. had been informed of the risks of the fat transfer procedure and that she had specifically consented. He admitted he was unsure as to "which board, or organization, or outfit" requires a written informed consent. Aggravating and Mitigating Factors No evidence was introduced to show that Dr. Velilla has had any prior discipline imposed. There was no evidence that Dr. Velilla was under any legal restraints in February 2011. It was not shown that Dr. Velilla received any special pecuniary benefit or self-gain from his actions in February 2011. It was not shown that the actions of Dr. Velilla in this case involved any trade or sale of controlled substances. On May 17, 2014, Dr. Velilla received a certificate showing completion of an FMA educational activity conducted in Jacksonville, Florida, entitled "Quality Medical Record Keeping for Health Care Professionals."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, enter a final order dismissing the Second Amended Administrative Complaint against the professional license of Dr. Cesar Augusto Velilla. DONE AND ENTERED this 8th day of June, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 2016.
The Issue The issue in this case is whether Petitioner is entitled to an award of attorney’s fees and costs pursuant to Section 57.111, Florida Statutes (2007).1
Findings Of Fact On November 2, 2006, the Department filed with the Board of Medicine a one-count Administrative Complaint against Dr. Thompson, alleging that Dr. Thompson violated Subsection 458.331(1)(t), Florida Statutes (2003). The Administrative Complaint was based on a probable cause finding by the Probable Cause Panel of the Board of Medicine (Panel) on October 27, 2006. The Panel included two physicians. Prior to the meeting of the Panel on October 27, 2006, the members of the Panel received the following materials on the cases to be considered: “the complete case files, including any patient medical records, expert opinions, if any, any materials supplied by the licensee or their counsel” and a draft of the Administrative Complaint. The file on Dr. Thompson included the investigator’s file; the expert opinions of Thomas F. Blake, M.D., F.A.C.S.; Dr. Blake’s curriculum vitae; medical records for the treatment of T.C.; and letters from Bruce M. Stanley, Sr., counsel for Dr. Thompson, along with a draft of the Administrative Complaint. At the Panel meeting, the members indicated that they had received the materials with sufficient time to review and familiarize themselves with the materials. The Panel members did not find any problems with the materials such as missing pages or illegible copies. Additionally, the panel members indicated that they had no conflict of interest or prior knowledge of the cases before them that would make it inappropriate to deliberate and vote on the issues. In the case of Dr. Thompson, the Panel was supplied with expert opinions from Dr. Blake. Dr. Blake was a diplomat certified by the American Board of Obstetrics and Gynecology, a fellow of the American College of Surgeons, and a fellow of the American College of Obstetricians and Gynecologists. By letter dated December 20, 2004, Dr. Blake rendered the following opinion concerning the care provided by Dr. Thompson: Thompson, M.D. fell below the standard of care by abandoning a patient under general anesthesia and leaving the facility to attend to another patient. However, there were no complications or injury to either patient. The potential problem would be that he would unexpectedly be confronted with complications in the delivery. This could detain him for a prolonged period of time and place the patient under anesthesia in jeopardy of having to have the anesthesia discontinued and subjecting her to further risks. By letter dated December 29, 2004, the Department requested clarification on the issue of whether there were any identifiable deficiencies or problems with the medical records that were maintained by Dr. Thompson. Dr. Blake sent an addendum to his report dated January 11, 2005, in which he gave the following opinion: Medical records utilized in the treatment of the patient are complete and justify the treatment. There are no identifiable deficiencies or problems with the medical records maintained by the subject. At the Panel meeting, an attorney for the Department summarized the case against Dr. Thompson as follows: Patient T.C. presented to the surgery center for several gynecological procedures. While T.C. was under general anesthesia, the Respondent physically left the surgery center to attend to another patient in another building. Respondent delivered a baby of that other patient. T.C. was left under the care of a certified registered nurse anesthetist. After returning from delivering the child, Respondent finished the gynecological procedure. The Department is charging a violation of Section 458.331(1)(t), for violation of the applicable standards of care by leaving T.C. for several minutes in the middle of surgery and in between procedures while she was under a general anesthesia, by failing to notify the patient that Respondent had left and by failing to note in the medical record that Respondent had left the building. The Panel members discussed the case against Dr. Thompson during the meeting and voted on the case, finding there was probable cause to believe a violation had occurred. The findings of the Panel resulted in the issuance of the Administrative Complaint. The case was received by the Division of Administrative Hearings on February 8, 2007, for assignment to an Administrative Law Judge to conduct the final hearing. The Department retained another expert, Jose H. Cortes, M.D., F.A.C.O.G, to provide an opinion concerning Dr. Thompson’s actions relating to the treatment of T.C. By letter dated February 27, 2007, Dr. Cortes opined that Dr. Thompson fell below the standard-of-care while attending T.C. by leaving the operating room and going to another building to attend to another patient. Dr. Cortes was also of the opinion that Dr. Thompson did not adequately maintain the medical records for T.C. by the following actions: The departure from the normal course of surgery such as leaving the operating room was not documented by the attending physician, the outpatient establishment nursing staff, nor the anesthesia attending or nurse anesthetist. A signed consent form not available. * * * As the record documents the evaluation of 07/18/03 and 08/05/03 by the Physician Assistant describes the patient’s complaint and ultrasound study review respectively. The blood count presented from 07/18/03 shows a Hemoglobin of 13.6 gms and Hematocrit of 40.1 percent with normal indices, a pelvic ultrasound which documented fibroids of less than 2.1 cm in size each. With the above findings a conservative management strategy is usually employed initially and the patient is followed prior to recommending any surgical procedure unless declined by the patient. However, all of this has to be documented as recommended by the literature and agencies which review patient care and guidelines such as KePRO. On July 10, 2007, the Department filed a motion to amend the Administrative Complaint, which motion was granted by Order dated July 13, 2007. The Amended Administrative Complaint added a count alleging a violation of Subsection 458.331(1)(m), Florida Statutes (2003), alleging that Dr. Thompson: [F]ailed to keep legible medical records justifying the course of treatment by failing to document in T.C.’s medical records that he left the building during the procedures he performed on T.C. on or about September 11, 2003, and/or by failing to document any discussion with T.C. about alternative treatment options such as discontinuing oral contraceptives, a formal dilation and curettage, and/or the use of a Mirena IUD to address T.C.’s problems or concerns. The final hearing was held on July 27, 2007. A Recommended Order was entered on October 31, 2007, recommending that a final order be entered finding that Dr. Thompson did not violate Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes (2003), and dismissing the Amended Administrative Complaint. A Final Order was entered on December 18, 2007, adopting the findings of fact and conclusions of law of the Recommended Order and dismissing the Amended Administrative Complaint against Dr. Thompson. The parties have stipulated to the reasonableness of the fees and costs claimed by Dr. Thompson. Dr. Thompson has incurred $34,851.00 in attorney’s fees and costs. The parties have stipulated that Dr. Thompson is a prevailing small business party and that Respondent is not a nominal party to this action.
Findings Of Fact Respondent is a licensed medical doctor holding a license to practice medicine in the State of Florida issued by the Board of Medical Examiners, Department of Professional Regulation. The Petitioner is a governmental agency charged with enforcing the provisions of Chapter 458, Florida Statutes, and related rules which regulate the licensure standards and status pertaining to medical doctors in the State of Florida, and enforcing the practice standards for licensed medical doctors embodied in Chapter 458, Florida Statutes. Steven Jones has been employed as a detective in the Narcotics Department of the City of Miami Beach Police Department for approximately three and one-half years. He is a ten-year veteran of the law enforcement profession. In December 1982, an investigation was initiated to determine whether allegations of misprescribing scheduled controlled substances made by a confidential informant against Dr. Ramos, the Respondent, were true. On December 16, 1982, Detective Jones entered the medical offices of the Respondent and asked to see Dr. Ramos. The Respondent's receptionist asked him to fill out a patient information sheet. On this sheet or form he indicated his name was "Steven James." He was then taken to the Respondent's office and met the Respondent. He told the Respondent that he was a construction worker, had recently experienced turmoil in his domestic life, and also suffered from a lumbo-sacral sprain. The Respondent then asked him if he had back pain and, after asking him general questions about his health and whether he suffered from any major illnesses, took out his prescription pad and wrote prescriptions for three medications. Other than the general questions the doctor asked him about his health, no detailed medical history was taken from Mr. Jones and there was no physical examination performed by Dr. Ramos or anyone else, except that his weight and height were recorded. No blood pressure reading was taken. After Dr. Ramos asked Mr. Jones if he had a backache, to which Mr. Jones responded in the affirmative, Dr. Ramos stated that he would prescribe something for the backache and something for stress that caused the backache, and something to sleep at night. Although no blood pressure was taken, Dr. Ramos did ask the patient how his blood pressure was, and the patient answered that it was "fine." The doctor then prescribed 60 tablets of valium, 60 placidyl tablets and 40 darvocet tablets. The only medical history provided in writing to the doctor concerned the name, address and employment, medical insurance information and answers to questions on the form concerning allergies. Additionally, the patient noted that he had been taking "valium" or "valium." Upon receiving the prescriptions, Steven Jones paid Dr. Ramos $40 and left his office. Detective Jones again visited Dr. Ramos' office on February 2, 1983. Upon arriving at the office he was escorted into an examining room by the Respondent's assistant, who was also his wife. While Mr. Jones was seated in the examining room, an assistant placed a blood pressure tourniquet or cuff on the patient's arm, leaving it there four to five minutes, when she ultimately returned to the room and informed Steven Jones that the doctor was ready to see him. The blood pressure tourniquet or arm band was never actually inflated by the Respondent or assistant, and no blood pressure reading was ever taken on this visit. Upon going into the Respondent's office, Mr. Jones was asked by Dr. Ramos about how he was feeling and the "patient" requested stronger pain medication. The doctor refused to do this, saying in effect that the patient, Mr. Jones, would have to be admitted to a hospital before the Respondent could prescribe stronger pain medication. Again, on this office visit no social or medical history was taken, and no physical examination was conducted at all. The Respondent asked the patient if he wanted the same prescriptions he had obtained at his December visit, and the patient answered in the affirmative. There was no discussion between the patient and the Respondent or anyone else concerning the patient's condition or progress between the December visit and this February visit. There was no discussion concerning the need for future treatment. The Respondent simply, at that point, wrote the same prescriptions given at the December visit. The next visit by Detective Steven Jones, a/k/a Steven James, occurred on May 25, 1983, at the Respondent's medical offices. The same medical assistant recognized Jones immediately when he came into the office and asked him if he was there for the same reason, to which he replied in the affirmative. He was then escorted straight to Dr. Ramos' office, who asked him if he wanted the same medication again, to which he assented. There was no discussion at all about his condition and how it may have progressed since the February visit, nor was there any discussions about future prospects for treatment, what treatment if any, was being considered or what it was designed to accomplish. The Respondent simply wrote three prescriptions once again, for valium, placidyl and darvocet, Schedule IV controlled substances. Except for the first visit, there was never any discussion of back pain nor any discussion concerning symptoms of insomnia and nervousness in this patient. Onelia Padron testified for Respondent. She has known the Respondent for many years and has worked for him as a technician for approximately a year. She was working in his office in December 1982, as an x-ray technician and in the performance of blood tests, blood pressure readings and physical therapy. She remembered Detective Jones coming to the office in December 1982, and testified that she did not take a blood pressure reading at the December visit, but did so at the February visit. Her specific memory of taking the blood pressure reading in February was not clear, however. She remembers specifically that his blood pressure was normal at the February visit and testified that she was sure that Dr. Ramos wrote down the blood pressure of the patient in his medical chart for the February visit. The patient medical record of Detective Jones a/k/a James, however, does not reveal that a blood pressure reading was taken at the February visit. Although the witness claims to have taken a blood pressure reading on the patient on his February 1983 visit, the testimony of Detective Jones reveals that no blood pressure reading was taken; although the blood pressure cuff or tourniquet was applied to his arm, it was simply not used. This may account in part for Ms. Padron's mistaken memory of actually taking the blood pressure reading. Her memory may be less than accurate due to passage of time. The testimony of Detective Jones to the effect that no blood pressure reading was taken, when considered with the Respondent's own medical records which do not reveal a blood pressure reading being taken, renders the finding inescapable that no blood pressure reading was taken at the February, 1983 visit and that Ms. Padron, after the passage of over a year, has a less- than-specific, inaccurate memory about the occasion and thus her testimony with regard to this visit is not credible. Rita Ramos, the Respondent's wife, acts as the office receptionist who makes and maintains the medical records for the Respondent. She performs no medical duties, however, she is well acquainted with her husband's handwriting and, of course, her own handwriting, and established that the word "valium" on Petitioner's Exhibit 2 and the word "valium" on Petitioner's Exhibit 6 were not written by her or her husband. She maintains that she specifically remembers the patient (Detective Jones) coming to visit Dr. Ramos on December 16, 1982, and she specifically remembers the doctor conducting a full physical examination and writing at least four lines of notes in the patient's record. She did not take a blood pressure on this patient in either December or February, however, and could not give an adequate explanation of how she could perform all her administrative record-keeping and maintenance duties and still have time to continually watch through the open door of her husband's office to see the physicals performed on approximately 20 patients a day, including Jones, and especially then to be able to remember the details of that one specific patient's visit in December 1982, over a year prior to the hearing. Although this witness supposedly remembered the doctor "always" conducting physical examinations on the first visit by a patient, and specifically conducting a head, eyes and ears examination on the first visit of Detective Jones, given the inherent interest of the patient in this case, the fact that her memory must be suspect regarding a specific patient's visit on a specific date more than a year prior to the hearing, and her own testimony that no irregularity or memorable occurrence happened during the visit of that patient to stimulate her recall, her memory of that event must be deemed less than accurate and therefore her testimony concerning the physical examination cannot be found credible by this Hearing Officer. Dr. Ramos testified on his own behalf. He stated that his standard practice is to interview and examine each patient and that he was especially suspicious of the subject patient who came in wearing earrings and boots. He interpreted his abbreviated notes on the patient's chart to reveal that the patient was 5'8" tall and weighed 145 pounds, had a blood pressure of 120 over 80 and a pulse of 80, and a normal sinus rhythm with no heart murmur and no abnormal respiratory signs. The doctor additionally interpreted his handwritten notes containing his own abbreviations, to reveal that the patient's eyes were normal, neck supple, with normal ears, nose, throat and a fair complexion. Although the patient asked for a stronger medication on at least one of the visits, including quaaludes, the doctor refused, informing the patient that he could not legally prescribe such for him in Florida. The doctor also testified that he remembered that on the second visit in February 1983, Ms. Padron took the blood pressure of the patient. He contends that he did not record the blood pressure reading because it was the same as the first time, that is, the December 1982 visit. No blood pressure was taken or recorded at the December 1982 visit, however, and none is revealed in the doctor's record for that visit. Although the doctor testified that on the February visit he believed that the patient might be trying to trick him and might be an undercover law enforcement officer, he still prescribed the same controlled substance prescribed earlier, with no additional physical examination made nor physical findings recorded in the patient records. He repeated the same instructions as to use of those drugs and the reasons for taking those drugs, but did not record any physical findings related to that visit. By his own admission, he did not ask the patient what had occurred in his medical history between December and February and did not ask questions concerning the success of his previously prescribed course of treatment. If indeed, the Respondent believed that the patient could be an undercover law enforcement officer and thus attempting to trick the doctor into misprescribing drugs for him, one might think that the doctor would take pains to make a thorough physical examination and to thoroughly record his findings and conclusions in the medical records he maintained, instead of failing to document his physical findings and conclusions and continuing to prescribe those drugs over a period of months. Thus, the testimony of Dr. Ramos is not supportive of a finding that a thorough physical examination, including the taking of blood pressure readings at each patient visit and, (in view of the low back pain complaint) straight leg raise tests, tests for impairment of sensation in extremities and other parameter checks, was actually conducted on the patient. Dr. John Handwerker, M.D., testified as an expert witness for the Petitioner. He has served as first chairman of the Department of Family Practice at the University of Florida Family and Community Medicine programs. He is Chairman of the Family Practice Department of Mercy Hospital in Miami, and is assistant professor of pharmacology at the University of Miami. He is knowledgeable regarding generally prevailing and accepted standards of family practice in Dade County and was accepted, without challenge, as an expert in the field of family practice. The drug Darvocet and Darvocet N-100 is a Schedule IV controlled substance, according to the schedule established in Chapter 893, Florida Statutes. Darvocet is characterized by some habituating influence, together with some problems with withdrawal. Its use is contraindicated with tranquilizers, such as valium, which was also prescribed in conjunction with it by Respondent for the patient involved herein. Valium, which is known generically as diazepam, is also a Schedule IV controlled substance and is a sedative or anti-anxiety drug with a wide variety of potentially adverse drug interactions, including darvocet. It can be mildly addictive, has a depressant effect on the central nervous system and is also a muscle relaxant. Placidyl is a short-term drug used in sleep disorders. It is only indicated for use for a maximum of seven days. It is classed as an oral hypnotic, and is a Schedule IV controlled substance pursuant to Chapter 893, Florida Statutes. Prior to prescribing any of these drugs, a physician should take a full history from a patient, and perform a thorough physical examination. The history should include the patient's chief complaint with questions from the physician to the patient involving areas of past problems with the nervous system, ears, eyes, lungs, chest, respiratory system, GI tract, and urinary tract. The physical examination should involve all body systems, including blood pressure, examination of the head, neck and chest and back regions. Further, if the patient requests these or other drugs specifically, a check should then be made for "track marks" and other evidence of prior drug abuse or usage. If the patient complains of low back pain, there should be a physical examination specifically involving the low back area before prescribing the scheduled controlled substances at issue. The past history is important to determine the duration of the problem, any previous medical treatment, examinations or tests by other physicians regarding the lumbosacral or low back area. A physical examination should be performed designed to elicit indications of neurological involvement, including straight leg raise tests, impairment of sensation tests in the extremities and other neurological inquiries. Such a full history and a physical examination is necessary prior to initiating a course of treatment involving treatment of chronic pain due to the existence of a wide assortment of other treatment modalities which might treat the root of the problem, rather than merely the pain symptoms. Dr. Handwerker, upon being questioned concerning the December 1982 visit of Detective Jones to the Respondent's office, posing as a 29-year-old construction worker complaining of lower back pain and insomnia, established that if a doctor performed no physical examination of such a patient, or only a cursory one, and took a history which in essence elicited only the complaint of injury (aside from the non-medical personal background information) that it would amount to inappropriate prescribing of the subject drugs if the patient was given these drugs in the manner prescribed to Detective Jones. The Respondent simply made insufficient findings upon which to base the decision to prescribe those drugs. Such prescribing without an adequate physical examination or the obtaining of detailed patient medical history would constitute a failure to conform to the level of care, skill and treatment recognized by reasonably prudent similar physicians under these conditions and circumstances. The continued prescribing of these drugs at the February and May visits of this patient, without any discussion or consideration of the effect the previous course of treatment had had on the patient, other than a simple question by the Respondent concerning how the patient was feeling, also constitutes inappropriate prescribing of scheduled controlled substances and demonstrates a failure to conform to the generally accepted and prevailing standards of medical practice in the Dade County community. It was similarly established that the medical records failed to justify the course of treatment afforded this patient. Especially regarding the lack of a physical examination at each visit, and the failure to elicit any further medical history on the latter two visits. Even if a full physical examination and history was conducted on the first visit in December 1982, which was not the case, there would still be required an interim update and recording of physical findings related to the patient's experience since the December visit. Notes should have been made in the patient records regarding how the medications were affecting the patient and his pain problem, including notes reflecting that a physical examination had been performed, involving all vital signs, which was not the case with this patient. Not only does the generally accepted and prevailing standard of medical practice in Dade County require that an initial, thorough physical examination including the blood pressure and pulse and the eliciting of a detailed medical history be performed, as well as update physical examinations at later visits to check the progress of the patient under the treatment program; the failure to note the findings in the patient records constitutes a failure to conform to generally accepted and prevailing standards of medical practice for the Dade County community. Dr. Alfred March testified as an expert witness for Respondent, but agreed that the same detailed medical history and examination described by Dr. Handwerker is required before the practitioner should prescribe scheduled controlled substances in the same manner as done by the Respondent. Dr. March was unable to ascertain from simply reviewing the medical records of the Respondent, the reason or justification for the prescribing of any of the drugs on the three dates in question, and established that the medical records of the doctor should always justify the course of treatment for a patient. Indeed, Dr. March established that if a patient came in complaining of a backache, then such would be inappropriate prescribing without the performance of x-rays of the affected area and a full neurological examination, neither of which was performed by the Respondent in this case. Dr. Ramos has never been subjected to disciplinary proceedings in the past, and his past professional record reveals that his medical practice has been characterized by sincere concern for his patients and the highest respect of his colleagues. The subject drugs involved are Schedule IV controlled substances, which are of the class of drugs characterized by the least serious ramifications for patients, if misused. It is to the doctor's credit that when the undercover detective, Mr. Jones, attempted to persuade him to prescribe more powerful medication such as quaaludes, the doctor vigorously protested such a course of treatment and refused to do so, citing his belief that indeed it was illegal to do so in Florida.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefor
