Conclusions Having reviewed the Administrative Complaint and Amended Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights forms advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: lL. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $2,375.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. Any check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, FL 32308 Filed July 7, 2014 1:52 PM Division of Administrative Hearings Hteno_ , 2014. ORDERED at Tallahassee, Florida, on this _/ / day of A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE 1 CERTIFY that a true and correct-capy of this Ffnal/Order was served on the below-named persons by the method designated on this/ vi day of a= , 2014. Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, FL. 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Nick Lynn, Executive Director Thomas Valdez, Esq. Spring Hills Lake Mary Quintairos, Prieto, Wood & Boyer, P.A. 3655 W. Lake Mary Blvd Lake Mary, FL 32746 | (U.S. Mail) 4905 W. Laurel St— Ste 200 Tampa, FL 33607 (U.S. Mail) David Selby, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail)
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: On June 27, 1977, respondent was charged by Information with committing the felony of leaving the scene of an accident on February 24, 1977. The accident resulted in injuries to a seventy-nine (79) year old woman, Grace Heck, who died nine (9) days later as a consequence of those injuries. Respondent pled nolo contendere to that charge and, on November 15, 1977, Judge Thomas M Coker, Jr, entered an order withholding adjudication of guilt and placing respondent on probation for a period of three (3) years, with the specific condition, among nine others, that he pay restitution for the medical expenses of the accident victim. The term of probation was later modified to one year to conform to the law. On or about July 10, 1978, respondent's probation officer filed an Affidavit of Violation of Probation stating nine violations of the terms of respondent's probation. These violations included failure to submit required reports and pay costs for supervision, failure to make restitution for the accident victim's medical expenses, carrying a concealed firearm, operating a motor vehicle on two occasions while his license was suspended, careless driving, and failure to reduce the speed of his automobile resulting in the colliding with and subsequent death of a pedestrian, John Kelly Wilkens. Effective July 13, 1978, Judge Coker revoked respondent's probation imposed for the offense of leaving the scene of an accident and sentenced respondent to one year in the county jail. Pursuant to a motion for mitigation, Judge Coker on August 18, 1978, set aside the order of adjudication of guilt and the one year sentence, and ordered that respondent be placed on a new probation for a period of one year. The original terms of probation were imposed, along with the conditions that respondent not resume the practice of medicine until an examining board determined his fitness and that he submit to a psychiatric evaluation and treatment, if required. On or about July 14, 1978, another Information was filed against respondent for the third degree felony offense of carrying a concealed weapon. After a plea of nolo contendere, adjudication of guilt was withheld and respondent was placed on probation for a period of five years by Judge Coker on January 24, 1979. Independent evidence was adduced by the petitioner with respect to both the hit-and-run accident and the carrying a concealed firearm charge. A passenger in respondent's car on February 24, 1977, testified in her deposition that respondent was driving his car, ran a red light in Fort Lauderdale and collided with a turning car containing two elderly persons. Respondent immediately left the accident scene, drove to a closed service station and stayed there for a few minutes, then drove to a school parking lot and left the car there. The deponent and respondent then walked to respondent's home, picked up another car and drove to West Palm Beach where respondent played tennis. Two officers with the Fort Lauderdale Police Department testified that their investigation of the February 24, 1977, accident confirmed that respondent was the driver of the hit-and-run vehicle. The officer who arrested respondent for carrying a concealed weapon testified by way of deposition that in June of 1978, she found respondent in his car with a fully loaded and cocked automatic weapon on the floor and live ammunition matching the weapon in his pocket. Respondent has not reported to his probation officer since October of 1979. An Affidavit of Violation of Probation has been filed against the respondent and respondent is presently the subject of an arrest warrant. His present whereabouts are unknown to his probation officer and he is considered a fugitive from justice. At the request of Judge Coker, Dr. Arnold H. Eichert, a psychiatrist, examined respondent on September 11, 1979, It was Dr. Eichert's opinion that respondent suffered from paranoid schizophrenia, Dr. Eichert seriously doubted respondent's ability to practice medicine at that time. Inasmuch as respondent had violated his probation and failed to appear at this hearing, Dr. Eichert opined that such conduct and poor judgment was consistent with his earlier diagnosis that respondent would be unable to practice medicine with reasonable skill and safety to patients. Respondent was expelled from the Broward County Medical Association on July 7, 1977, for the reason that his medical practice was detrimental to the profession, his patients or the community. No appeal was taken from this action. On November 10, 1977, respondent's medical staff privileges at Plantation General Hospital were suspended for his lack of attendance at general staff and departmental meetings. On September 30, 1977, the State Committee on Peer Medical Utilization Review (PMUR), which analyses physician treatment of Medicare patients for Blue Shield, found that respondent was guilty of "maximal overutilization of office visits, injections and laboratory procedures." This finding was made after a review of the medical records of approximately forty-five (45) of respondent's patients during the 1974 year. The charts were reviewed by Blue Shield, the Florida Medical Foundation, Inc. and a county peer review committee. Statistically, a review of respondent's patient charts illustrated that respondent was far beyond the utilization screening parameters as compared to other physicians in the Broward County area engaged in general practice. Specifically, the norm for visit days per patient for physicians doing general practice in the area was five days. The respondent's records indicated eight visit days per patient, or sixty percent over the screening parameter. The average number of injections per patient was 2.44. Respondent's injections per patient amounted to 17.7, or 620.08 percent over the parameter. Respondent's laboratory procedures per patient per year were 6.24, while the screening parameter was 4.96, representing 25.81 percent overutilization. By way of deposition, Dr. Frank Hodnette, Chairman of the State Committee on PMUR, testified that such statistics denote that respondent was "way out of bounds as far as his utilization of the medicare benefits as related to . . . the area of office visits, injections and laboratory work." After reviewing respondent's patient's medical charts, the various reviewing committees further concluded that respondent's practice deviated from the standard of acceptable daily practice and was not consistent with what is considered as standard good care of medical practice. A member of the Broward County Medical Association's PMUR Committee that reviewed respondent's records testified at the hearing as an expert in family and general practice. Dr. Nancy La Fuente reviewed several medical charts and found no medical justification for certain injections, multiple injections of the same substance, and an overall gross abuse of injections, particularly of vitamins. Dr. La Fuente concluded that respondent's practice significantly deviated from the standard of acceptable and prevailing medical practice in his area of expertise in Broward County.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent be found guilty of violating Section 458.1201(1)(c), (m), (n) and (p) and that respondent's license to practice medicine in the State of Florida be revoked. Respectfully submitted and entered this 6th day of June, 1980, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: William B. Wiley McFarlain, Bobo, Sternstein, Wiley and Cassedy, P.A. 666 Lewis State Bank Building Tallahassee, Florida 32301 Alfred E. Johnson, Esquire 3443 Hancock Bridge Parkway North Ft. Myers, Florida 33903 Nancy Whittenberg, Secretary Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Mailed to Stephen M. Niesen, M. D. to the three addresses indicated below: 1940 South Ocean Drive Hemisphere's Apartments No. 8-P Hallandale, Florida 33309 % Probation Department Broward County Courthouse Fort Lauderdale, Florida 33301 Post Office Box 6372 Fort Lauderdale, Florida 33310
Conclusions Having reviewed the Notice of Intent to Deny, the Amended Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the provider (hereinafter “the Respondent”) pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Administrative Complaint and Election of Rights from on the Respondent. (Ex. 1) The Agency later issued the attached Notice of Intent to Deny and Election of Rights form on the Respondent. (Ex. 2) The Election of Rights forms advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 3) Filed November 21, 2011 9:10 AM Division of Administrative Hearings Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Notice of Intent to Deny is WITHDRAWN. 3. The Respondent shall pay the Agency a total of Fifty-Six Thousand and No/100 ($56,000.00) Dollars in administrative fines and assessments, Twenty-Six Thousand and No/100 ($26,000.00) Dollars of which shall be in full and final satisfaction of any and all reimbursements owed for any potential or alleged Medicaid overpayments (and shall be associated with CI No. 12-0957-000 for purposes of internal Agency allocation) during the Respondent’s period of non-compliance. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 ORDERED at Tallahassee, Florida, on this IS day of No YewSer— , 2011. Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. Page 2 of 3 CERTIFICATE OF SERVICE I CERTIFY that a true and correct cgpy of this Final Order was served on the below-named “Se day of Nbitw br , 2011. persons by the method designated on this Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Thomas F. Asbury, Esq. Brian J. Lynch, Administrator Office of the General Counsel The Brookshire Agency for Health Care Administration 85 Bulldog Blvd. (Electronic Mail) Melbourne, Florida 32901 (U.S. Mail) Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Shaddrick Haston, Unit Manager Assisted Living Unit Agency for Health Care Administration (Electronic Mail) Anna G. Small, Counsel for Respondent LaVie Care Centers 10210 Highland Manor Dr., Suite 250 Tampa, FL 33610 (U.S. Mail) Horace Dozier, Field Office Manager Medicaid Program Integrity Agency for Health Care Administration (Electronic Mail) Lynne A. Quimby-Pennock Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Page 3 of 3
The Issue The issues for determination are whether Respondent Lucien Armand, M.D., violated Section 458.331(1)(nn), Florida Statutes (2004), by having violated Florida Administrative Code Rules 64B8-9.009, 64B8-9.0091, and 64B8-9.0092, and Section 458.331(1)(m), Florida Statutes (2003), as alleged in an Administrative Complaint filed by the Department of Health before the Board of Medicine on March 28, 2006; and, if so, what disciplinary action should be taken against his license to practice medicine in the State of Florida.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 458, Fla. Stat. Respondent, Lucien Armand, M.D., is, and was at the times material to this matter, a physician licensed to practice medicine in Florida, having been issued license number ME 33997. Dr. Armand is board-certified in general surgery by the American Board of Surgery. Dr. Armand’s mailing address of record at all times relevant to this matter was 2071 Southwest 52nd Way, Plantation, Florida 33317. At the times relevant, Dr. Armand practiced medicine at 4100 South Hospital Drive, Suite 108, Plantation, Florida 33317. The office at which Dr. Armand practiced medicine was located very close to Plantation General Hospital (hereinafter referred to as “Plantation”). Dr. Armand has been the subject of three prior disciplinary matters arising out of five separate cases. Penalties were imposed in those three disciplinary matters. The Department summarized those disciplinary matters in paragraph 34 of its Proposed Recommended Order: In DPR Case Numbers 0019222, 0019123 and 0091224, Respondent was fined, received a reprimand, and was required to complete 30 hours of Continuing Medical Education (CME) in general vascular surgery and risk management within the surgical practice. In Case Number 94-10100, Respondent was required to submit to and comply with an evaluation at the University of Florida, to pay a fine, was reprimanded, was required to complete twenty hours of CME in general surgery in performing Laparoscopic Cholecystectomy, and was placed on Probation for two (2) years. In Case Number 1999- 58474, Respondent was restricted from performing Level II or above office surgery as defined in Rule 64B8-9.009(1)(d), Florida Administrative Code, until the Respondent demonstrated to the Board that he had successfully completed the University of Florida Comprehensive Assessment and Remedial Education Service (UF C.A.R.E.S.) course and complied with all recommendations, was reprimanded, was placed on probation for two (2) years, was required to attend the Florida Medical Association “Quality Medical Record Keeping for health Care Practitioners” course, was required to perform 100 hours of community service, and was required to reimburse the Department for costs. Dr. Armand, who is 70 years of age, has been practicing medicine for 46 years. He has practiced medicine in Florida since 1979. During the eight months prior to the final hearing of this matter, Dr. Armand was practicing in South Sudan pursuant to contract with the United States State Department. Office Surgery Registration. Section 458.309(3), Florida Statutes (2003) (hereinafter referred to as the “Office Registration Statute”), requires that any physician in the State of Florida who performs certain levels of surgery in his or her office, with one exception not pertinent to this case, must first register his or her office with the Department: (3) All physicians who perform level 2 procedures lasting more than 5 minutes and all level 3 surgical procedures in an office setting must register the office with the department unless that office is licensed as a facility pursuant to chapter 395. The department shall inspect the physician's office annually unless the office is accredited by a nationally recognized accrediting agency or an accrediting organization subsequently approved by the Board of Medicine. The actual costs for registration and inspection or accreditation shall be paid by the person seeking to register and operate the office setting in which office surgery is performed. What constitutes “Level II” and “Level III” office surgery have been defined by the Board of Medicine (hereinafter referred to as the “Board”) in Florida Administrative Code Rule 64B8-9.009 (hereinafter referred to as the “Office Surgery Rule”). In summary, as relevant to this matter, any physician who wishes to perform Level II as defined in the Office Surgery Rule which will last more than 5 minutes or any Level III Surgery in his or her office must register with the Department and either undergo an annual inspection of the office by the Department or obtain accreditation as specified in the statute. If not performing the surgery specified in the statute, no registration is required. In furtherance of this process, the Department has promulgated Florida Administrative Code Rule 64B8-9.0091 setting out the “Requirement for Physician Office Registration: Inspection or Accreditation” (hereinafter referred to as the “Office Registration Rule”). This Rule further explains the physician’s choices for completing the registration of an office for Level II procedures by inspection or accreditation. What is not proscribed by statute or rule is the process by which a previously registered office may be “unregistered” by a physician or precisely what happens when the accreditation of an office expires. Registration of Dr. Armand’s Office. On or about April 16, 2003, Dr. Armand registered his office to perform Level II procedures. His office was designated as having Registration Number 331. Following an inspection of Dr. Armand’s office conducted on or about June 8, 2001, by the Florida Academy of Cosmetic Surgeons, an organization approved at that time by the Board as an “accrediting organization,” Dr. Armand’s office was accredited by the Department to perform Level II procedures in his office. That accreditation was valid for three years, until June 2004. As of June 2004, the Florida Academy of Cosmetic Surgeons was no longer approved as an accrediting organization by the Board. Nor was Dr. Armand at that time performing any procedures that required registration of his office pursuant to the Office Registration Statute. Dr. Armand was effectively no longer approved as a registered Level II office. In July 2004, Dr. Armand spoke by telephone with personnel in the Department’s Office of Surgery Registration and Inspection Program (hereinafter referred to as the “OSRIP”), about the status of his registration. Dr. Armand expressed interest in continuing his office registration. He was, consistent with existing statutory and rule law, told that he would need to become reaccredited or submit to inspection in order to be considered an office approved to conduct Level II or Level III procedures. As of September 22, 2004, Dr. Armand, having taken no action to obtain accreditation or to request an inspection, and having performed no Level II or Level III procedures in his office, changed his mind about registering his office to perform Level II or III procedures. On that date, he telephoned the OSRIP and stated that he was only performing Level I procedures, that he might want to perform Level II and III procedures in the future, and that he would contact the OSRIP the following month. Dr. Armand made this telephone call because he was considering closing down his office surgery practice completely and was trying to decide whether he wanted to make the effort to bring his office back into compliance with the Office Surgery Rule: No, at some point when I considered the expenses involved into – For a period of time, I did not operate in the office and I did not have any procedures happen at Level II or III. When I decided to re-equip the office, to bring it up to date, up to Code for the surgery and I considered the expense involved and I figured that I was going to be retired from surgery anyway because at that time I was barely practicing, I was going maybe two or three times in the office a week for a few hours, because I was in school studying for me [sic] Public Health Degree, I was winding down my office. I decided it was not necessary for me to go into the expense of re-fitting, bring the office up to Code or to inspection because I was going to close down anyway, further down the line, within a year, six months or a year. Page 179, Lines 2-25, Vol. II, Transcript of Final Hearing. By letter dated October 29, 2004, Dr. Armand was informed by the OSRIP that he needed to advise the office whether he was accredited or would submit to an inspection, alternative steps required to be registered pursuant to the Office Registration Statute. He was also told that, if he did not intend to perform officer surgery, he needed to submit written documentation to that effect immediately. What law the OSRIP was relying upon for this latter directive was not cited in the letter or at hearing. An office registration application form was provided to Dr. Armand. On November 24, 2004, the OSRIP received a completed Application for Office Surgery Registration (hereinafter referred to as the “Application”) from Dr. Armand in which he indicated that the wanted to perform Level II and Level III surgery in his office. The Application contained the names of other medical staff who were represented by Dr. Armand would be “involved in the office surgery or anesthesia," an affirmation that Dr. Armand was in compliance with the requirements for performing office surgery established by Florida Administrative Code Rule 64B8-9.009, and a representation that Dr. Armand would immediately notify the Board of Medicine of any changes to his registration information. At that point, had Dr. Armand’s Application been deemed complete, which it was not, Dr. Armand would have been required to either provide proof of accreditation or submit to an inspection by the Department pursuant to Florida Administrative Code Rule 64B8-9.0091(2)(a), which provides, in part, that “[u]nless the physician has previously provided written notification of current accreditation by a nationally recognized accrediting agency or an accrediting organization approved by the Board the physician shall submit to an annual inspection by the Department. . . .” This portion of the Office Registration Rule, however, when read in context of the entire Rule, applies by its terms only to instances where a physician is requesting registration of an office. It does not by its terms proscribe what happens if an office has previously been registered by accreditation, the accreditation expires, and subsequently, the physician does not “perform level 2 procedures lasting more than 5 minutes [or any] level 3 surgical procedures in an office setting ” Dr. Armand’s Application was found to be incomplete by the Department because he had not designated why the Application was being filed. By letter dated December 8, 2004, the OSRIP notified Dr. Armand that his Application was incomplete. Dr. Armand was asked to either provide current accreditation or submit to inspection. At no time did Dr. Armand comply with this request. On February 23, 2005, having heard nothing from Dr. Armand, the OSRIP changed his registration to “by inspection” and proceeded to initiate the process to have Dr. Armand’s office inspected. By a March 15, 2005, email from Debbi Conn, the individual designated by the Department to conduct the inspection of Dr. Armand’s office, the OSRIP was notified that she had spoken to Dr. Armand by telephone and that he had indicated he no longer wished for his office to be registered. Dr. Armand had also indicated, therefore, that he did not wish to have his office inspected. Although the Department could have reasonably interpreted the statutory and rule provisions governing registration of offices in which Level II and Level III surgery can be performed to treat Dr. Armand’s registration as having lapsed as of June 2004, when his accreditation ended, and treated the Application as a new application for registration which had now been withdrawn, the OSRIP concluded that an inspection was still necessary. The OSRIP took the position that once a physician has registered an office pursuant to the Office Registration Statute, that office continues to be “registered” indefinitely regardless of whether the office accreditation expires or whether any procedures requiring registration are being performed in the office. On March 24, 2005, an email was sent to Dr. Armand by Melinda K. Gray, Supervisor of the OSRIP, following up on a telephone conversation she had had with Dr. Armand that day. She told Dr. Armand in the email that his office was required to be inspected despite the fact that he had withdrawn his application. Ms. Gray informed him of the name of the inspector and the scheduled time of the inspection in the email. On March 28, 2005, Dr. Armand sent a letter to Ms. Gray stating the following: This letter is to document our conversation of the March 24/05. I do want to state again formally I no longer perform any class II and III procedure [sic] in my office. I have not done so in quite sometime [sic] first because I was prohibited by the board until 2004 and now I am in the process of winding down my surgical career. Please verify the last order of the board. It is in the file. I apologize for having mistakenly submitted last year the form to maintain my office surgical registration active. It was my error. I am hereby formally requesting that you please void, cancel, disregard, delete it from my file. If there is any other procedure or action required beyond this letter to do so please inform me and I will promptly comply. I thank you in advance for your patience and understanding. An employee in Dr. Armand’s office faxed a document to Ms. Conn on April 1, 2005, indicating that Dr. Armand still did not believe he needed to be inspected. Ms. Conn responded that she would be there on April 4, 2005, as scheduled. The April 4, 2005, Inspection. As Dr. Armand had been previously informed, an inspection of his office was conducted by Ms. Conn on April 4, 2005. Dr. Armand was not present. Not surprisingly, since Dr. Armand had not performed anything but Level I surgery since his accreditation ended in June 2004, and he had represented that he was no longer interested in bringing his office up to standard, his office did not meet the requirements of Florida Administrative Code Rule 64B8-9.009. The following deficiencies were found on April 4, 2005: The office equipment failed to meet the requirements of Florida Administrative Code Rule 64B8-9.009(4)(b) and (6)(b)3. There was no working defibrillator, dantrolene, equipment comparable to a free-standing ambulatory surgical center (full monitoring equipment, including an anesthesia machine, EKG, blood pressure, pulse socks, CO2 monitors and a crash cart with a defibrillator or an AD that has been bio-medically inspected), or an up-to-date and complete crash cart. These deficiencies would present an immediate and imminent danger to patients, but only if Level II and/or Level III procedures were being performed in the office, which they were not; Medications required by Florida Administrative Code Rule 64B8-9.009(4)(a)3.a. on the crash cart were out of date or missing. Again, this would present an immediate and imminent danger to patients, but only if Level II and/or Level III procedures were being performed in the office; The office lacked surgical logs, a policy and procedure manual, risk management program, adverse incident reporting system, required signage, evidence of compliance with Basic Life Support Certification, evidence of Advanced Cardiac Life Support Certification (which Dr. Armand had, but, because he was not at the office during the inspection, was unavailable to provide to Ms. Conn), or any cleaning sterilization, infection control or emergency procedures. See Fla. Admin. Code R. 64B8-9.009(2)(c), (i), (j), (k), (l), and (4)(b)2. No personnel records for Philip Jacobson, M.D., or Barry Miller, ARNP, the two “medical staff” listed by Dr. Armand on his sworn Application as individuals who would be involved in the provision of surgery in his office, were found during the inspection. Dr. Jacobson, who testified at hearing, convincingly testified that, although he had worked with Dr. Armand during one office procedure, described, infra, he had never agreed to any long-term arrangement with Dr. Armand as suggested on the Application. At the conclusion of the April 4, 2005, inspection, a copy of the deficiency report was signed by “Clare,” who had been present at Dr. Armand’s office during the inspection and was apparently employed there. Clare was given a copy of the report and the appropriate rule, and was told that Dr. Armand could file a plan of correction within 30 days. Clare agreed to give the information to Dr. Armand. No correction plan was submitted to the Department by Dr. Armand. Findings Concerning Patient D.V. During the April 4, 2005, inspection, Ms. Conn found a narcotics log concerning one patient, Patient D.V. The log indicated that an abdominoplasty had been performed on Patient D.V. on May 28, 2004, which was before Dr. Armand’s accreditation as an office registered to perform Level II and III surgery expired. The procedure had been performed under general anesthesia administered by Dr. Jacobson, as a Level III procedure. On further investigation, Ms. Conn was unable to find the following records concerning the procedure performed on Patient D.V.: pre-operative evaluation; patient/procedure records; informed consent; surgical log; operative report; recovery notes; discharge orders, post-operative vital signs; post-operative care records; and a pathology report for tissue sent to pathology for examination. Before administering anesthesia to Patient D.V., Dr. Jacobson had visited Dr. Armand’s office. That visit took place on January 8, 2004. During the visit, Dr. Jacobson found expired medications, a vaporizer with gasses of undetermined date, and a broken defibrillator. Dr. Jacobson pointed out these problems to Dr. Armand. Because of what he found on January 8, 2004, Dr. Jacobson brought his own medications, vaporizer, and defibrillator for use during the procedure performed on Patient D.V. As of May 28, 2004, Dr. Armand had not disposed of the expired medications found by Dr. Jacobson, and the broken vaporizer and defibrillator were still in the office. Ms. Conn spoke to Dr. Armand by telephone on April 4, 2005, who reiterated that he did not intend to perform Level II or Level III surgery. Dr. Armand also incorrectly stated that he had not performed any Level II or Level III surgery in his office since 2002. When asked about his treatment in 2004 of Patient D.V., Dr. Armand denied having performed the procedure. When Ms. Conn told him about the records she had found concerning Patient D.V., Dr. Armand hung up the telephone.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine dismissing Count I of the Administrative Complaint; finding that Lucien Armand, M.C., has violated Section 458.331(1)(m), Florida Statutes (2003), as alleged in Count II of the Administrative Complaint; imposing a fine of $7,500.00 for the violation alleged in Count II; and, indefinitely suspending his license to practice medicine in Florida, but allowing him to continue to practice medicine outside the United States through his relationship with the United States Department of State after full disclosure of the Board’s final order to the United States Department of State. Should a medical license not be a condition of employment by the United States Department of State, his license should be revoked. DONE AND ENTERED this 17th day of June, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2009. COPIES FURNISHED: Diane Kiesling Assistant General Counsel Robert A. Milne Assistant General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Sean Ellsworth, Esquire Ellsworth Law Firm, P.A. 1501 Collins Avenue, Suite 208 Miami Beach, Florida 33139 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701
The Issue The issue posed for decision herein is whether or not the Respondent, based on conduct set forth hereinafter, has engaged in conduct violative of Section 466.028(1)(o) and Section 455.241(1), Florida Statutes, as alleged in the Amended Administrative Complaint. 2/ Upon consideration of the Administrative Complaint filed herein, the Request for Admissions propounded to the Petitioner by the Respondent on August 24, 1982, the arguments of counsel, and the entire record compiled herein, I hereby make the following:
Findings Of Fact By its Administrative Complaint filed herein dated July 7, 1982, the Department of Professional Regulation, Board of Dentistry (Petitioner herein), seeks to suspend, revoke, or take other disciplinary action against Ronald Friedensohn, D.M.D., a licensed dentist in the State of Florida who has been issued license No. DN0007254. The Administrative Complaint contained two counts. Count I of the Administrative Complaint charged Respondent with violating Section 466.028(1)(o), Florida Statutes, for failing to make available to a patient, copies of the patient's records. Count II of the Administrative Complaint, as amended, charged Respondent with a violation of Section 455.241(1), Florida Statutes, due to an alleged refusal to release a patient's records to that patient until a disputed fee was paid, and thereby violated Section 466.028(1)(bb), Florida Statutes. On August 24, 1982, Respondent propounded a Request for Admissions to the Petitioner requesting that the Petitioner admit or deny the following within 30 days of service: Mrs. Barbara Ruderman has never made a formal request, herself, to Dr. Ronald Friedensohn for her x-rays and dental records pursuant to Florida Statute 455.241. An authorized legal representative has never requested, from Dr. Friedensohn, Mrs. Ruderman's records or x-rays. The only individual ever to request Mrs. Ruderman's x-rays and records was her husband, Morton Ruderman. Mr. Morton Ruderman, her husband, is not a duly appointed legal representative of Mrs. Ruderman. Petitioner failed to respond to the Request for Admissions within the 30-day period. However, the Petitioner did respond to the Request for Admissions on October 12, 1982, denying all admissions. In this regard, the Petitioner did not request an extension, nor was one provided to Petitioner, to respond to the Request for Admissions. Likewise, the Petitioner did not file any objections to the Request for Admissions within the appropriate time period. At the outset of the hearing, Respondent's counsel filed an ore tenus motion for a ruling, from the undersigned, to have deemed as admitted the admissions propounded to the Petitioner on August 24, 1982.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Administrative Complaint filed herein, as amended at the hearing, against Ronald Friedensohn, D.M.D., shall be DISMISSED in its entirety, with prejudice. RECOMMENDED this 3rd day of December, 1982, at Tallahassee, Florida. JAMES E. BRADWELL, 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 3rd day of December, 1982.
Findings Of Fact At all times material hereto, Respondent Jorge Macedo, M. D., has been licensed as a medical doctor under the laws of the State of Florida. Respondent graduated from medical school in Brazil in 1954, and practiced in Brazil for one year thereafter. He then came to the United States, where he has practiced from 1956 until the present date. On February 13, 1976, Maury Braga came to Respondent's office in Hialeah, Florida. Respondent had never before met Braga and had never heard of him. Braga advised Respondent that he was a medical doctor from Brazil, that he had attended and graduated from the Faculdade de Ciencias Medicas de Santos, Brazil, that he had practiced the profession of medicine in Brazil during the years of 1967 through 1972, that he was in the process of obtaining his medical license in Florida, and that to complete his Florida medical application he needed statements from local doctors acknowledging that Braga was a Brazilian medical doctor. Braga showed to Respondent documentation concerning his education and practice, including his medical diploma. Based upon his interview of Braga and his examination of Braga's documents, Respondent signed a form utilized by Petitioner, which form is entitled "Affidavit" and which reads, in pertinent part, as follows: I, Jorge Macedo, M. D., of 1060 E. 4th Ave., Hialeah, Florida, do hereby swear and affirm by my personal knowledge, that Maury Braga attended and graduated from Falcudade de Ciencias Medicas de Santos and did lawfully practice the pro- fession of medicine, in Brazil during the years of 1967 through 1972, and that I also practiced the same profession in Brazil. When Respondent signed the "affidavit," it was not notarized. Respondent had no personal knowledge regarding whether Braga had ever attended or graduated from medical school or regarding whether Braga had ever practiced medicine in Brazil. Respondent relied totally on the information contained in the documents Braga showed to him and upon what Braga told him. After Braga left Respondent's office, he had the "affidavit" signed by Respondent notarized. He attached the "affidavit" to an Application for Examination and Course in Continuing Medical Education, which application he then submitted to the Florida Board of Medical Examiners. On February 26, 1976, the same day that Braga's application was received, the Executive Director of the Board of Medical Examiners wrote to Braga advising him that his application was received after the deadline of January 26, 1976, and was therefore rejected. The application was not returned to Braga, but rather was placed in a file opened under Braga's name to be retained in the event that Braga again applied within the next three years to take the course in continuing medical education and the examination for licensure. On January 17, 1977, Braga filed a second application to take the course in continuing medical education which would then qualify him to take the examination for licensure. The second application included "affidavits" from medical doctors other than Respondent. One of Braga's two applications was approved; Braga completed the course in continuing medical education; Braga took and passed the examination for licensure; and Braga was licensed as a medical doctor in the State of Florida on March 10, 1978. Maury Braga did not attend or graduate from the Faculdade de Ciencias Medicas de Santos, and did not lawfully practice the profession of medicine in Brazil during the years 1967 through 1972. Braga's license to practice medicine in the State of Florida has been revoked. At least prior to the revocation of his license, Braga's file with the Petitioner contained both the application he filed in 1976 and the application he filed in 1977. No evidence was introduced to show which application was reviewed when Braga's application to take the educational course and examination for licensure was approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the violation charged in Count Two of the Administrative Complaint, dismissing Counts One, Three and Four of the Administrative Complaint, and placing Respondent's license on probation for a period of one year, subject to terms and conditions set forth by the Board. DONE and RECOMMENDED this 17th day of February, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1983. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee7 Florida 32301 Jack E. Thompson, Esquire Ingraham Building, Suite 516 25 SE Second Avenue Miami, Florida 33131 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy J. Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BOARD OF MEDICAL EXAMINERS DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Petitioner, vs. CASE NO. 82-114 JORGE MACEDO, M.D. License Number: 10095 Respondent. /
The Issue Whether Respondent's license to practice chiropractic should be suspended or revoked, or the licensee otherwise disciplined, for alleged violations of Chapter 460, F.S., as set forth in the Administrative Complaint, dated May 11, 1984. This case arises as a result of charges filed by Petitioner in an Amended Administrative Complaint alleging that Respondent violated various provisions of Chapter 460, Florida Statutes, in performing procedures intended to terminate the pregnancy of a female patient in 1984, which resulted in a criminal conviction. At the hearing, Petitioner presented the testimony of Alfred Clum, a Department investigator, Charles E. Robinson, Chief Investigator, Bay County Sheriff's Office, Dr. March A. Wolf, obstetrician and gynecologist, Patty Smith, Deputy Clerk, Bay County Circuit Court, David W. Morrison and Barbara Morrison. Respondent testified in his own behalf. Petitioner submitted 6 exhibits in evidence and Respondent submitted a late-filed exhibit. Although the parties were provided time to file an agreed transcription of tape recordings as a late- filed exhibit, such exhibit has not been filed as of this date. At the commencement of the hearing, Petitioner amended paragraphs 11 and 17 of the Amended Administrative Complaint to correct scrivener's errors, thus changing the alleged violations of Section 460.413(1)(g) to 460.413(1)(q). Similarly, paragraph 15 was corrected from Section 460.1413(1)(u) to 460.413(1)(u). Although the parties were accorded a specified period in which to file post-hearing proposed findings of fact, they failed to do so.
Findings Of Fact Respondent Thomas F. Yancey was licensed to practice chiropractic in the State of Florida in 1966 and was so licensed at all times material to the administrative complaint herein. On May 15, 1984, an Order of Emergency Suspension was issued against Respondent's license by the Secretary of the Department of Professional Regulation which is still in effect. Respondent has never been licensed by the Florida State Board of Medical Examiners or Board of Osteopathic Medical Examiners. (Petitioner's Exhibits 1-4, Testimony of Respondent) In August 1983, Barbara D. Morrison visited Respondent's office in Panama City, Florida, for the purpose of obtaining an abortion. She paid him $150.00, but obtained a refund because, according to her, "it didn't work." Respondent testified that Morrison had come to him at that time for an abortion, but that he had told her "I don't do that," but that he could arrange it for her if she needed it. He admitted that he gave her an examination and told her that he suspected she was pregnant. He further testified that since Morrison had given his receptionist some money, he wrote her a check for $150.00. (Testimony of B. Morrison, Respondent, Respondent's Exhibit 1) During the latter part of March 1984, Morrison again went to Respondent's office and told him she wanted an abortion. He told her it would cost $150.00. She then went into a room in the office where she put on a gown, laid on a table and placed her feet in stirrups. Respondent "mashed" on her stomach to see if she was pregnant and then "gave me some kind of shot in my uterus." Respondent told her that he had used a saline solution. Morrison's ex-husband, David W. Morrison, went to Respondent's office while Barbara Morrison was there to loan her $60.00 for the abortion. He gave the money to Respondent's receptionist. He observed Barbara in a back room of Respondent's office, but no one else was there at the time. He later took her home. (Testimony of B. Morrison, D. Morrison) The injection that Barbara Morrison received from Respondent in March 1984 did not produce any results so she returned to his office about a week later on April 2, 1984. At that time, Respondent followed the same procedures as on the previous occasion and injected a solution into her again. According to Barbara Morrison, "it felt like it went to my heart. It hurt real bad. I asked him what he did and he said nothing. He said to lay down and I would be all right, but my body was swelling up." She was thereafter taken by a companion to the Bay County Medical Center where she received emergency treatment. On the same day, she was transferred to the Gulf Coast Hospital and treated by Dr. Mark A. Wolf, an obstetrician/gynecologist who had treated her for a "spontaneous" abortion in 1983. Upon examination, Dr. Wolf found that Morrison was experiencing lower abdominal pain and was also having some reaction to medication. There was no evidence of infection at the time. Ultrasound studies showed a viable pregnancy in the uterus with some fluid or swelling around the gestational sack. Morrison told him at the time that she had had an abortion attempted to be performed on her and that she believed that is what caused some of her problems. Dr. Wolf believed there was a significant risk of infection and admitted her to the hospital. She thereafter started to develop signs of infection and to spontaneously abort her pregnancy. He therefore completed the abortion by a dilation and evacuation of the uterus. (Testimony of B. Morrison, Wolf) On April 10, 1984, pursuant to an investigation conducted by the Bay County Sheriff's Office, Barbara Morrison returned to Respondent's office with an electronic transmitter concealed on her person that could be monitored by the law enforcement personnel in a nearby vehicle. She told Respondent that she needed another "shot" because the other one hadn't worked. They made an arrangement for her to return on the next day, April 11, for another abortion attempt. Morrison asked Respondent for a receipt for the money that she had paid and he wrote her one. On the following day, she returned, again equipped with a listening device, and went to Respondent's back room, put on a gown, and got on the table. She asked Respondent if he was going to give her a shot like the one he gave her the last time and he said yes. At this point, law enforcement personnel entered the room, observed Morrison sitting on the table with a gown on, and Respondent standing near the foot of the examination table with an instrument tray in his hand. The office was searched pursuant to a search warrant, but no medical records concerning Morrison were found. Respondent was placed under arrest at the time. On April 23, 1984, a departmental investigator, Dwayne Clum, talked to Respondent outside his office and provided him with a release of medical records which had been signed by Barbara Morrison. Respondent informed Clum that he had no medical records on Morrison. Investigator Clum accompanied the Sheriff's personnel when they entered Respondent's office on April 11, and took photographs of the examination table and tray containing various items including a metallic syringe, a vaginal speculum, and a metal cannula. However, there was no fluid in the syringe and the cannula, which can be used as an attachment to a syringe, did not fit the syringe on the tray. (Testimony of B. Morrison, Clum, Robinson, Wolf, Petitioner's Exhibit 5) On October 29, 1984, Respondent was found guilty of criminal abortion, performing an abortion in an unlawful place, and two counts of practicing medicine without a medical license. Imposition of sentence was withheld and he was placed on probation for a period of five years. The conviction was based on Respondent's activities in connection with Barbara Morrison on April 2 and 11, 1984. He was found not guilty of practicing medicine without a license in connection with his alleged performing of an internal examination of and injecting a solution into the reproductive organs of Morrison on or about March 15, 1984. (Petitioner's Composite Exhibit 7) Respondent denied at the hearing that he had seen Morrison in March of 1984. He claimed that she had left numerous calls at his house during the latter part of March, but that he had been at a seminar. He admitted that he saw her either on April 1 or 2, 1984, and performed a pelvic examination. He claimed that he had to wash her vagina prior to the examination and that there was pus oozing therefrom with a strong odor, and that he therefore took a large ear syringe and washed out the area with a saline solution. He told her at this time that he was not sure that she was pregnant. He further testified that she came back about a week later demanding to see him and that he told her that he could see her the next day. However, prior to any action on his part on that day, the police entered his office. He denied ever agreeing with her to perform an abortion or injecting anything into her uterus. He explained that the reason he had no medical records on Morrison was because the exams were strictly of an emergency nature. Respondent denied receiving any money from Morrison on April 2, 1984, but said that she "threw a five dollar bill" on his desk on April 11. Respondent's testimony in the above respects is not deemed credible and is accordingly rejected. (Testimony of Respondent) Although the term "obstetrics" normally deals with the outcome of a live birth, the aborting of a fetus or termination of pregnancy can also be included in the definition. Such an invasive procedure involving the injection of a substance into the uterus also might be encompassed within the term "surgery." Termination of a pregnancy constitutes the practice of medicine that only may be performed by a licensed physician or osteopath. (Testimony of Wolf)
Recommendation That the Board of Chiropractic issue a final order which suspends the license of Thomas F. Yancey to practice chiropractic for a period of two years, as a result of established violations of subsections 460.413(1)(n), (q) and (u), Florida Statutes. DONE and ENTERED this 14th day of January, 1986, in Tallahassee, Florida. THOMAS C. OLDHAM 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 14th day of January, 1986. COPIES FURNISHED: Fred Varn Executive Director Board of Chiropractic 130 North Monroe Street Tallahassee, Florida 32301 Edward C. Hill, Jr., Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Roger D. Patterson, Esquire 17208 W. Hutchinson Road Panama City Beach, Florida 32407
