The Issue The issue for consideration in this hearing is whether Respondent's license as a chiropractor in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Board of Chiropractors, was the state agency responsible for the licensing of chiropractic physicians and the regulation of the chiropractic profession in Florida. Respondent was a licensed chiropractic physician holding license number CH-0004760, issued on January 2, 1985. Shortly after beginning his licensed practice, Respondent requested a provider number under both the Medicare and the Blue Cross/Blue Shield insurance programs, and was assigned provider number 70616. Application for a Blue Cross/Blue Shield provider number does not automatically result in the issuance of a Medicare provider number. That requires a separate request. However, Blue Cross/Blue Shield is the contract manager for the Medicare Part B program in Florida and is responsible for issuing provider numbers to physicians submitting claims to either or both programs, and the number for both may be the same, modified with a PIN number for one of them. On or about September 26, 1985, Respondent entered into an agreement with Medicare Part B to be a participating physician or supplier, as well as with Blue Cross/Blue Shield. A participating physician is a provider of medical services who agrees by contract to file claims directly with the carrier for the Medicare Part B program and agrees to accept no more than the Medicare approved charge for service of treatment rendered to a patient within the program. The participation agreement is automatically renewed on an annual basis until the provider requests, in writing, to be disenrolled. Respondent did not submit such a request, and, therefore, from January 1, 1986 through such time in 1995 as his status was terminated, he was a participating physician under the Medicare Part B program. In mid-September, 1992, S.M., a 70 year old woman, needed chiropractic treatment. Since she had just moved into the Winter Haven area, she contacted a referral service from which she obtained Respondent's name, among others. Because she knew where his office was, she called him to make an appointment, After asking her over the phone if she had Medicare and supplemental insurance coverage, (she did not ask him if he took Medicare patients), he made an appointment with her for an examination. S.M. contends that prior to providing any treatment, Respondent had her fill out a case history form which bears some notations which she did not put there. The Confidential Patient Case History form filled out by the patient on July 18, 1992, in the section entitled "Insurance Information", specifically asks for the name of the patient's insurance carrier and if the patient is covered by Medicare, to each of which questions the patient answered affirmatively and gave the pertinent coverage information. She also gave Respondent's staff her insurance cards for copying in support of the information noted on the form. The same form also has a provision in it which states in part, just above the patient's signature line: .... I understand that this Chiropractic Office will prepare any necessary reports and forms to assist me in making collection from the insurance company and that any amount authorized to be paid directly to this Chiropractic office will be credited to my account on receipt. However, I clearly understand and agree that all services rendered me are charged directly to me and that I am personally responsible for payment. Respondent took two x-rays of the patient's back and then treated her. She visited Respondent's office for treatment on at least two occasions and he wanted her to come back for further visits. However, because she felt better she did not do so. Respondent's records reflect that S.M. was treated by the Respondent with spinal adjustment or manipulation on both September 21 and September 28, 1992, and according to the Board's expert, Dr. Lucido, he also performed spinal acupressure trigger therapy on her. Spinal adjustment is covered by Medicare. Spinal acupressure trigger therapy is not. After each visit, S.M. was requested to pay in full in cash for all services provided and was given a receipt for the payments made. S.M. paid Respondent $170.00 for the first visit and paid $30.00 for each succeeding visit. According to Dr. Lucido, if Respondent performed services covered by private insurance, the filling out of the form for the patient would be a courtesy. If, however, the patient were covered by Medicare for the service rendered, it would be mandatory. If a chiropractor is going to perform a therapy which, as here, is not covered by Medicare, he is required to notify the patient of this in advance. Since in this case Respondent was performing a service not covered by Medicare, he was obliged to so advise the patient prior to doing the treatment, and this advice should have been reduced to writing and acknowledged by the patient. If a non-covered service was to be the exclusive service provided, Respondent would not have been required to file for Medicare coverage for the patient unless it were necessary in order to get a denial of coverage by Medicare prior to payment by private insurance. This is the standard in the community, according to Dr. Lucido. Respondent claims to recall vividly the treatment he rendered to S.M. and asserts he did only non-covered therapy which did not require him to fill out a Medicare claim form. He also claims that at the time in issue he was no longer a Medicare provider, asserting that one of the memoranda in the Blue Cross/Blue Shield personnel files relative to his status bears a signature thereon that is not his. Nonetheless, this testimony must be considered in light of Respondent's admission that he was once convicted of a crime involving dishonesty or the making of a false statement. Respondent admits signing up with Medicare early on and there is no evidence that he ever initiated his disenrollment from the program in a manner consistent with the procedure outlined by Ms. Esposito, the agency's enrollment official. The testimony of Respondent's office assistant, Ms. Miller, suggests that the receipts in this case are inaccurate and based on the medical records and her mistaken supposition of what happened in the treatment room. Respondent agrees and claims that when he discovered what had happened and how S.M. had been billed, he tried to retract the incorrect receipts which Ms. Miller had mistakenly issued. Notwithstanding all the above, in Dr. Lucido's opinion, S.M. was given both covered and non-covered treatment, and in this case, he contends, Respondent was obliged to file the Medicare claims form for S.M. After an evaluation of the testimony given by both Respondent and his assistant, it is found that Dr. Lucido's analysis of the situation is more credible and is adopted here. Ordinarily, S.M. would wait for the Medicare Explanation of Benefits form which she would then use to seek reimbursement from her supplemental carrier. The physician providing Medicare covered treatment is required to submit the Medicare claims form, and some physicians, as a courtesy, will prepare and submit the supplemental insurance claim form as well. After the last visit with Respondent, S.M. requested that he submit her insurance claim form to Medicare on her behalf so that she could be reimbursed for the money paid by her to him. Respondent told her he didn't go to school for five years to learn to fill out forms, but if she would get the forms, he would help her fill them out. When she went to the Social Security office to get the forms, at first she could not get them. S.M. was told it was up to the doctor to obtain and fill them out. However, she finally prevailed and got the forms which she filled out as best she could, except for the diagnosis. She then took them to Respondent. He not only refused to file the claim form with Medicare for S.M., he also refused to complete the diagnosis portion of the form. As a result, S.M. was required to submit the claims forms to Medicare herself, but payment for the services rendered her was denied by Medicare because the claims forms were not filed by Respondent directly with the carrier. When S.M. called Respondent's office to report that, he was not in and she left word for him to call back. He has never done so. Respondent's assistant, Ms. Miller, claims that on none of the three visits did S.M. indicate she was on Medicare nor did she ever present a Medicare card. Her testimony is not considered reliable, however, and S.M.'s account of the relationship is more credible. Federal law, at 42 U.S.C. 1395 provides that for services rendered after September 1, 1990, and within one year after the date on which the service is rendered for which payment is sought, a physician or provider: ... shall complete and submit a claim for such service on a standard claim form specified by the Secretary to the carrier on behalf of a beneficiary, and ...may not impose any charge relating to completing and submitting such a form.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Board of Chiropractic enter a Final Order in this case placing Respondent, Jerald M. Jervis', license to practice chiropracty in Florida on probation for six months, assessing an administrative fine of $500.00, and issuing a reprimand. RECOMMENDED this 7th day of September, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 1995. COPIES FURNISHED: Jon M. Pellett, Esquire Agency for Health Care Administration Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerald M. Jervis, D.C. 1100 East Lake Silver Drive, N.E. Winter Haven, Florida 33881-4155 Sam Power Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309 Diane Orcutt Executive Director Board of Chiropractors 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against a licensed medical doctor. By means of a two-count Administrative Complaint, the Respondent is charged with violations of Sections 458.331(1)(m) and 458.331(1)(t), Florida Statutes, by allegedly failing to keep written medical records justifying the course of treatment of a patient, and by failing to practice medicine with the required level of care, skill, and treatment. The Respondent denies the violations charged in the Administrative Complaint, and also asserts that the Administrative Complaint should be dismissed by reason of the Petitioner's failure to timely investigate and prosecute the subject charges.
Findings Of Fact Findings stipulated by the parties4 The Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida. The patient R. C. presented with a history of diabetes and hypertension. The Respondent did not attempt or make any contact with the primary care physician of patient R. C. Brevital was administered intravenously to the patient R. C. without the use of an IV pump. Resuscitative drugs and equipment should always be immediately available. There is no documentation of respiratory monitoring during the administration of anesthetics and the surgical procedure performed on patient R. C. It is well below the standard of care to both administer a general anesthesia and perform the surgical procedure. Findings based on evidence At all times material, the Respondent has specialized in urology. The Respondent is not board certified in urology. At all times material to this case, the Respondent was associated with a clinic named Instituto Latino Americano de Impotencia y Diagnostico (ILAID). One or two days each week, the Respondent would see patients at ILAID that were potential candidates for penile implant surgery. At all times material to this case there were at least two other licensed physicians associated with ILAID who often were the first physicians to see patients who came to ILAID with complaints of impotency. The subject patient (Patient R. C.) went to ILAID for the first time on May 24, 1993. On that day the patient signed a form titled "Patient Information," which contains little more than patient identification information, and a form titled "Patient's Declaration and Agreement."5 The patient probably saw a physician at ILAID on May 24, 1993, because a blood sample was taken from the patient that day and the results of the blood tests were reported back to ILAID on May 25, 1993. However, there is no documentation that the patient was seen by a physician at ILAID on May 24, 1993. Specifically, there is no medical chart documenting that on that day a physician took a history from the patient, examined the patient, evaluated the patient, ordered any tests of the patient, or otherwise treated or cared for the patient. At all times material to this case, the routine practice and procedure of ILAID regarding patients who went to ILAID with complaints of impotency was to have the patients seen by a physician associated with ILAID. It was also the routine practice and procedure at ILAID for the physician who first saw the patient to prepare a-medical record documenting the patient's visit. Such a medical record would routinely document a patient history, an examination of the patient, the physician's evaluation of the patient, and any treatments given or tests ordered by the physician. The impotency patients at ILAID were also routinely put through an evaluation procedure to determine the extent of and the nature of their impotency before implant surgery was recommended or performed. The results of the evaluation procedure were also routinely documented in the patient's medical chart. The Respondent first saw the subject patient on July 13, 1993, at the ILAID facility. On that date there were no patient records regarding the subject patient prepared by any other physician associated with ILAID for the Respondent to review. In the absence of any medical documentation, the Respondent apparently assumed that the patient had been through the normal routine at ILAID and proceeded to go forward on that assumption. On July 13, 1993, the Respondent took a brief, limited history from the patient and conducted a limited physical examination of the patient. The physical examination was limited to the patient's abdomen and urogenital area. Based on that limited history and examination, the Respondent concluded that penile implant surgery was an appropriate course of treatment, subject to the patient receiving medical clearance for the surgery. The Respondent did not perform any objective tests for impotence on the patient. The Respondent did not obtain a detailed medical history from the patient. The Respondent did not obtain a detailed history regarding the nature, extent, or duration of the patient's impotence. The Respondent did not conduct a complete physical examination of the patient. Prior to performing penile implant surgery, a physician should perform objective tests to determine if the surgery is indicated. Two objective tests that should always be performed are blood tests to determine the patient's testosterone level and prolactin level.6 Depending on the details elicited during the patient history, other objective tests may also be indicated. The Respondent failed to have tests done to determine the testosterone level and the prolactin level of the patient. The failure to perform these two objective tests is a departure from acceptable standards of medical care recognized by a reasonably prudent similar physician. Prior to performing penile implant surgery, a patient's condition must be assessed by a physician to determine whether surgery is indicated. The surgeon does not have to personally perform all aspects of the assessment of the patient's condition, but the surgeon must at least verify that an adequate assessment has been performed by another physician, and that the assessment has been documented in the patient's medical records. Adequate assessment of a patient's condition requires, at a minimum, a detailed medical history, a complete physical examination, and the performance of any objective tests indicated by the history and physical examination. The performance of surgery without either performing an adequate assessment of the patient's condition or verifying that such an assessment has been documented by another physician is a departure from acceptable standards of care recognized by a reasonably prudent similar physician. The Respondent did not obtain a detailed medical history from the patient, did not perform a complete physical examination of the patient, and failed to order at least two objective tests that were indicated by the patient's complaints. The Respondent also failed to verify that documentation existed which showed that any other physician had obtained a detailed medical history from the patient, had performed a complete physical examination of the patient, and had ordered the objective tests indicated by the patient's complaints. If the Respondent had attempted to verify the existence of such documentation, he would have discovered that the documentation did not exist. The Respondent's performance of surgery on the patient without performing an adequate assessment of the patient's condition, or without verifying that such an assessment had been documented by another physician, was a departure from acceptable standards of medical practice. The Respondent made arrangements for additional blood tests and for an EKG to be administered to the patient. The Respondent also believed that he had made arrangements for one of the other physicians at ILAID to medically clear the patient for surgery. Anticipating no problems regarding the medical clearance, the Respondent also contacted the director of ILAID, Rogelio Medel, and asked him to arrange a location for the implant surgery. In view of the patient's financial circumstances and his lack of medical insurance, it was decided that the surgery would be done in an operating room at a physician's clinic, which would be somewhat less expensive than performing the surgery in a hospital operating room. Rogelio Medel contacted Dr. Francisco A. Prado and arranged for the use of one of the operating rooms at Dr. Prado's clinic. Rogelio Medel had made similar arrangements with Dr. Prado twice before. The arrangement with Dr. Prado was that Dr. Prado would provide not only the use of the operating room, but would also provide all necessary supplies (including the anesthesia medications), as well as the services of a nurse anesthetist, Eduardo Perez, who worked for Dr. Prado on a regular basis. The surgery was scheduled for early in the afternoon on July 16, 1993. Unbeknownst to Rogelio Medel and to the Respondent, Eduardo Perez was not a licensed nurse anesthetist. The Respondent did not inquire of Eduardo Perez regarding the latter's qualifications or licensure status. Rather, relying on the representations of Dr. Prado, the Respondent assumed that Eduardo Perez possessed the necessary qualifications and licensure to function as a nurse anesthetist. While it is clear that Eduardo Perez was not licensed as a nurse anesthetist, there is no clear and convincing evidence in the record as to whether Eduardo Perez was or was not trained in the use of anesthetics, was or was not trained in the use of respiratory and cardiac monitoring equipment, or was or was not trained in the use of resuscitative drugs and equipment.7 The Respondent assumed that Eduardo Perez was trained in these matters, based on the assumption that Eduardo was a licensed nurse anesthetist. In view of the representations of Dr. Prado, it was reasonable for the Respondent to make that assumption.8 The Respondent was not trained in the techniques and procedures of advanced cardiac life support. The Respondent was not trained in the use of a defibrillator. The Respondent was not trained in the use of anesthetics. Prior to performing surgery on the subject patient, the Respondent had received a copy of the laboratory results dated July 16, 1993. He had also received a copy of the EKG report prepared by Dr. Freddie Rodriguez. Prior to performing the surgery, the Respondent had not received any written medical clearance for the patient to undergo the planned implant surgery. The Respondent never received any written medical clearance for the patient to undergo surgery, because the patient was never medically cleared. The Respondent did not receive any telephonic verification that the subject patient had been medically cleared for surgery, because no other physician had cleared the patient for surgery.9 Prior to performing surgery, it is the responsibility of the surgeon to verify that the patient has been medically cleared for the proposed surgery. Under similar conditions and circumstances, a reasonably prudent similar physician would not perform surgery without verification that the patient had been medically cleared for the proposed surgery. It is a departure from minimum standards of medical practice for a surgeon to perform surgery without such verification. Early in the afternoon on July 16, 1993, the Respondent performed penile implant surgery on the subject patient. The surgery was conducted in one of the operating rooms at Dr. Prado's clinic, as previously arranged with Dr. Prado. During the surgery the patient was anesthetized with the anesthetic agents Versed and Brevital. These anesthetic agents were administered by Eduardo Perez, who was functioning as a nurse anesthetist. Eduardo Perez was present during the entire surgical procedure, during which time he monitored the administration of the anesthetic agents, monitored the patient's vital signs, and otherwise performed the functions that would be performed by a nurse anesthetist. At all times material, the Respondent believed, based on the representations of Dr. Prado, that Eduardo Perez was a licensed and qualified nurse anesthetist who regularly worked in that capacity for Dr. Prado. When the surgical procedure had been completed, the Respondent left the patient in the care of Eduardo Perez while the Respondent left the operating room to change clothes. When the Respondent left the operating room the patient appeared to be normal. When the Respondent returned to the operating room a few minutes later, he noticed that the patient had become pale and sweaty. The Respondent also noticed that the patient had very little pulse or blood pressure. The Respondent and Eduardo Perez initiated cardiopulmonary resuscitation and also called fire rescue for assistance. The Respondent and Eduardo Perez continued their cardiopulmonary resuscitation efforts until the fire rescue personnel arrived a few minutes later. The fire rescue personnel initiated advanced cardiac life support measures and subsequently transported the patient to a hospital emergency room, where further efforts were made to resuscitate the patient. Shortly thereafter the patient was pronounced dead in the emergency room. Following an autopsy and investigation into the cause of death, the Dade County Medical Examiner was of the opinion that it could not be stated with any degree of medical certainty that the death of the subject patient was caused by the surgery. In order to have medical records sufficient to justify penile implant surgery, a physician must have written medical records that document at least the following matters: (a) a detailed patient history; (b) a complete physical examination of the patient; (c) a consideration of alternative therapy options; and (d) a pre-operative medical clearance. With regard to the subject patient, the Respondent does not have, and never did have, written medical records documenting any of the four matters itemized immediately above. By failing to keep written medical records documenting such matters with regard to the subject patient, the Respondent failed to keep records justifying the course of treatment of the patient.10
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a Final Order be issued in this case concluding that the Respondent has violated Sections 458.331(1)(t) and 458.331(1)(m), Florida Statutes, imposing a penalty consisting of the imposition of administrative fines totaling $6,000. 00, and the suspension of the Respondent's license to practice medicine for a period of 90 days. DONE AND ENTERED this 23rd Day of September, 1998, in Tallahassee, Leon County, Florid __________________________________ MICHAEL M. PARRISH 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 23rd day of September, 1998.
Findings Of Fact At all times material hereto, Respondent has been a licensed practical nurse in the State of Florida, having been issued license number PN 0867041. At all times material hereto, Respondent was employed by American Nursing Service, Fort Lauderdale, Florida, and was assigned to work at Broward General Medical Center, Fort Lauderdale, Florida. On July 30-31, 1989, Respondent worked both the 3:00 p.m. to 11:00 p.m. and the 11:00 p.m. to 7:00 a.m. shifts at Broward General Medical Center. She was responsible for 20 patients on that double shift. An hour or two before her double shift ended, she checked the I.V. of a patient near the end of the hall. The I.V. was not running, and Respondent attempted to get it running again by re-positioning the I.V. several times. She then went to the medication room and obtained a syringe to use to flush the I.V. to get it operating again. When she returned to the patient's room, the I.V. was running and Respondent tucked the syringe inside her bra. The syringe was still packaged and unopened. She then continued with her nursing duties. At 7:00 a.m. on July 31, while Respondent was "giving report" to the oncoming nursing shift and making her entries on the charts of the patients for whom she had cared during the double shift she was just concluding, one of the other nurses noticed the syringe underneath Respondent's clothing. That other nurse immediately reported the syringe to her own head nurse who immediately reported the syringe to the staffing coordinator. The head nurse and the staffing coordinator went to where Respondent was still completing the nurse's notes on the charts of the patients and took her into an office where they confronted her regarding the syringe. They implied that she had a drug problem and offered their assistance. Respondent denied having a drug problem and offered to be tested. They refused her offer to test her for the presence of drugs. Instead, they sent her off the hospital premises although she had not yet completed making her entries on the patient's charts. Hospital personnel then went through Respondent's patients' charts and found some "errors." A month later an investigator for the Department of Professional Regulation requested that Respondent submit to a drug test on one day's notice. She complied with that request. She asked the investigator to go with her to Broward General Medical Center so that she could complete the charts on the patients that she had not been permitted to complete before being sent away from the hospital. Her request was denied. At some subsequent time, the Department of Professional Regulation requested that Respondent submit to a psychological evaluation. She did so at her own expense and provided the Department with the results of that evaluation. Respondent has had no prior or subsequent administrative complaints filed against her.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Respondent not guilty and dismissing the Second Amended Administrative Complaint with prejudice. RECOMMENDED this 18th day of November, 1991, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-1775 Respondent's proposed findings of fact numbered 1-3, 6, and 8 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4 and 7 have been rejected as not constituting findings of fact but rather as constituting conclusions of law or argument of counsel. Respondent's proposed finding of fact numbered 5 has been rejected as being subordinate. COPIES FURNISHED: Jack McRay, General Counsel Department of CProfessional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Judie Ritter, Executive Director Department of Professional Regulation/Board of Nursing Daniel Building, Room 50 111 East Coastline Drive Jacksonville, Florida 32202 Roberta Fenner, Staff Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Christopher Knox, Esquire 4801 S. University Drive, #302 W. Box 291207 Davie, Florida 33329-1207
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 Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, and Chapter 458, Florida Statutes. Respondent is and has been at all times material hereto a licensed physician in the State of, Florida having been issued license No. 0033496. Respondent's address is 133 Darnell Avenue, Spring Hill, Florida 33626. Respondent rendered medical care and treatment to patient B.R. during the period July 11, 1985 to July 15, 1985 while she was a patient at the Oak Hill Community Hospital, Spring Hill, Florida for, among other things, acute transmural myocardial infarction. On or about July 15, 1985, patient B.R. died from acute myocardial infarction after resuscitative procedures were unsuccessful. Patient B.R. was brought to the emergency room at Oak Hill Community Hospital on July 11, 1985 by her husband after complaining of chest pains. Shortly after arrival she suffered a myocardial infarction and "coded." She was resuscitated and placed in the intensive care unit. As the medical services physician on call, Respondent was contacted and assumed the care of patient B.R., a 65 year old female. Respondent is Board-certified in internal medicine and is Board eligible in cardiology having completed a fellowship in cardiology at George Washington University in 1968. B.R. had formerly worked as a licensed practical nurse who suffered a back injury some years ago which resulted in back surgery three times. In 1978, some 10 years before her demise, B.R. suffered a heart attack. She also had a history of diabetes and recently had undergone a thyroidectomy. With this medical history she presented a complex case for care and treatment. With patient presenting the history and symptoms of B.R., a reasonably prudent physician would have ordered daily chest X-rays, had an echocardiagram taken, inserted a Swan-Ganz catheter and consulted with a cardiologist on the treatment of this patient. None of these were done by Respondent. While acknowledging those procedures above listed were clearly indicated, Respondent testified he suggested those procedures to B.R. but, while she was fully competent to understand his recommendation, B.R. refused to be further X-rayed, refused the echocardiagram because she thought it produced some type of nuclear radiation, and also specifically refused to have any tubes inserted in her veins which would result if the Swan-Ganz catheter was inserted. None of the patient's refusals to accept recommended procedures was charted in B.R.'s hospital records. Respondent testified that B.R. specifically directed him to not chart on her hospital record her refusal to undergo the test and procedures recommended by Respondent. Respondent further testified that following her refusal to undergo the test and procedures and under directions to him not to chart those refusals on the hospital chart, he put this history in his office notes. To corroborate thin testimony Respondent presented Exhibit 5, a copy of those office notes containing entries dated July 12, 13, 14, 15, and 23, August 13, September 26, December 13, 1985 and January 29, 1986, comprising 4 typewritten pages. While a patient has a absolute right to refuse treatment or procedures recommended by his/her physician, the patient does not have the right to direct the physician to prepare an incomplete record of his treatment and progress. The principal purpose of the chart is to record medical evidence of the patient's condition, treatment rendered and results obtained to provide a history from which another physician can, if necessary, adequately take over the care of the patient. The record also provides a history of the patient's response to treatment. Respondent's explanation that if he had expected to be away and another physician had to take over the care and treatment of B.R. he would have made the other physician aware of B.R.'s refusal to undergo the recommended procedures totally failed to satisfy the need for a complete record of the patient in one place. To prove the validity of the office notes as a "business record," Respondent testified that for the past 30 years he has maintained office notes in which he has placed information the patient didn't want in the hospital record. An expert witness in the field of questioned documents testified that each dated entry on Exhibit 5 was typed following a new insertion of the paper in the typewriter rather than all entries being typed at the same time or with the same insertion of the paper in the typewriter and this was consistent with what would be expected in normal office procedures. Respondent's office manager and secretary during the times reported on Exhibit 5 testified she was the one who normally transcribed Respondent's dictated notes, that Exhibit 5 was consistent with the normal office practice which would be to date the entries when they were typed, and, although she does not specifically recall typing each entry on Exhibit 5, they were probably all typed by her. Evidence questioning the validity of Respondent's testimony that the office notes were dictated contemporaneously with his treatment of B.R. and typed on the dates indicated included the testimony of the husband of B.R. that B.R. had a zest for life and it would be contrary to her nature to refuse certain procedures or consultations; the fact that on July 14, 1985 B.R. was intubated with the Respondent present; that there was no financial consideration involved as B.R. was adequately insured; the office manager and secretary of Respondent during the period the office notes are alleged to have been prepared is the daughter of Respondent; and the fact that at the peer review committee inquiry into the facts surrounding the death of B.R., Respondent never mentioned the existence of office notes although he was extensively questioned regarding his failure to maintain a more complete medical record in this case. From the foregoing it is found that B.R.'s refusal to submit to the procedures allegedly recommended by Respondent were not contemporaneously recorded in Respondent's office notes and Exhibit 5 was prepared after Respondent appeared before the hospital peer review committee if not also after the administrative complaint was filed in this case.
The Issue The issues in this case are whether Respondent violated sections 460.413(1)(m), 460.413(1)(ff), 460.413(1)(n), and 460.413(1)(r), Florida Statutes (2006),1/ and Florida Administrative Code Rule 64B2-17.0065, and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the practice of chiropractic medicine in Florida, pursuant to section 20.43 and chapters 456 and 460, Florida Statutes. Dr. Christian was at all times material to the violations alleged in the Administrative Complaint a licensed chiropractic physician in the State of Florida, having been issued license number 5756 on or about February 4, 1998. At all times material to the violations alleged in the Administrative Complaint, Dr. Christian, Dr. Davidson, and Dr. Kalin were employees of Comprehensive Physician Services, Incorporated (CPS). Dr. Christian was the sole stockholder of CPS. On April 17, 2006, M.M. was involved in an automobile accident when the car, in which she was a front-seat passenger, hit a tree on the passenger side. The window next to M.M. shattered and M.M. received lacerations to the right temple area of her head. M.M. was transferred by ambulance to the emergency room at Northside Hospital. While in the emergency room, a CT scan was performed on M.M.'s head. The CT evaluation was normal. The lacerations were sutured, and M.M. was discharged from the emergency room. On or about April 26, 2006, M.M. presented to CPS for treatment of injuries due to the automobile accident on April 17, 2006. M.M., who was a minor at the time, was accompanied by her mother to CPS. M.M.'s complaints were headaches; neck pain and stiffness; mid-back pain and stiffness; lower back pain and stiffness; difficulty sleeping due to pain; and difficulty with concentration. She indicated that, on a scale of one to ten, with ten being the most, the stiffness in her neck and middle back was a five. On examination, Dr. Christian found that M.M. had cervical and thoracic tenderness. In his initial report, Dr. Christian noted the hyperabduction tests were positive, and there was "left side reduced pulse/paresthesia due thoracic outlet compression consistent with compression from seat belt trauma." However, the test results contained in the medical records show that there are negative findings on the hyperabduction tests. When questioned about the discrepancy, Dr. Christian testified that the positive findings were a result of the grip/pinch test that he performed. He indicated that he made a mistake in his initial report and that the report should have stated right side reduced pulse. He could not explain how the grip/pinch test would lead him to conclude that there was a reduced pulse because M.M.'s pulse would not be measured during a grip/pinch test nor could he explain how he could learn from a grip/pinch test that there was paresthesia. Later, he testified that the difference in the results was not due to the grip/pinch test, but was a result of a second hyperabduction test that he performed prior to the grip/pinch test. Dr. Christian's testimony is not credited. Dr. Christian's practice is to have an assistant come into the examination room during the testing. As he performs the test, he tells the assistant the results of the test, and the assistant will record the test results. The medical records do not show a second hyperabduction test being recorded by an assistant. Therefore, the examination results are contrary to the results stated in the initial report for April 26, 2006. In his examination records of April 26, 2006, Dr. Christian noted that there was "R [circled] Visual Acuity Diff." M.M.'s mother was present during the examination and observed Dr. Christian testing M.M.'s vision on April 26, 2006. Dr. Christian testified that he first tested M.M.'s vision on May 24, 2011. His testimony is not credited. Dr. Christian's practice is to put findings of the previous chiropractic examination on the report of the examination that he is currently conducting so that a comparison could be made. The examination report of April 26, 2006, and May 24, 2006, are the same with the exception of notations on the May 24, 2006, report of 5/23 near the present complaints section and the section where areas of muscle spasms on the spine are noted. In his follow-up report dated May 24, 2006, Dr. Christian wrote: "Certainly today I see evidence of her continuing to have some alterations of visual acuity . . .". Dr. Christian testified that he had incorrectly included the term "continuing" in this statement. Dr. Christian's testimony is not credited. His statement that the alterations of visual acuity were continuing comports with M.M.'s mother's testimony that the first visual testing was done on April 26, 2006, and the examination report of April 26, 2006. Based on the examination reports for April 26, 2006, and May 24, 2006, there is no indication of what tests Dr. Christian used to test M.M.'s vision nor is there any indication of the exact nature of the problem with the right eye. Dr. Christian's initial report does not mention the visual acuity difference. His follow-up report of May 24, 2006, does not indicate the difference that M.M. is experiencing with her right eye. In his examination records of June 14, 2006, and July 25, 2006, Dr. Christian notes: " R [circled] side vision distance diff." In his final report of July 25, 2006, Dr. Christian noted as a current symptom, "[r]ight sided visual alteration with peripheral." He listed as a diagnostic impression: "Concussion with residual affecting peripheral visual field on the right, persistent." However, contrary to his final report, Dr. Christian testified at final hearing that M.M.'s problem with her peripheral vision had improved. On April 26, 2006, Dr. Christian's treatment plan included the following treatment for M.M. three times a week for four weeks: intersegmental traction, hot pack, and neuromuscular release for the full spine; inferential, alternating cervical to dorsal and dorsal to lumbar; full spine massage; and full spine aqua treatment. The therapist assistant was to determine which treatment modalities and areas to treat at each treatment session. Dr. Christian signed each of the daily treatment notes. On April 26, 2006, Dr. Christian referred M.M. to Dr. Kalin. According to Dr. Christian, Dr. Kalin had experience in emergency rooms treating patients who had sustained trauma. Dr. Christian wanted Dr. Kalin to look at the two lacerations that M.M. had sustained. However, there were no outward signs of infection of the lacerations, and the lacerations had healed. Dr. Christian also wanted to determine if there was any post concussion symptoms. Dr. Kalin evaluated M.M. on May 1, 2006. His initial diagnosis was that she had a "cervical musculoskeletal ligamentous strain" and a "[s]ubacute lumbosacral musculoskeletal ligamentous strain." His examination did not reveal any abnormality with M.M.'s vision. He did find that the lacerations may leave permanent scarring. In his interim report dated May 24, 2006, Dr. Christian stated: "Dr. Kalin was not able to mention the fact that she [M.M.] struck her head or had laceration and dizziness with nausea and vomiting following the impact." This statement is contrary to what Dr. Kalin stated in his report. Dr. Christian further noted in his report that he would follow- up with Dr. Kalin to see if Dr. Kalin had an addendum as to whether there is additional follow-up for post-concussion symptomology. In his report of May 1, 2006, Dr. Kalin did not make any findings of a concussion or post-concussion syndrome. On May 25, 2006, a staff member of CPS sent the following request to Dr. Kalin: Dr. Kalin, Dr. Christian asked if you could please make an addendum [sic] to your report on [M.M.] for her concussion-post concussion syndrome. Thanks! Kimberly Dr. Kalin replied: "pt had no symptoms of headache or memory/concentration when I saw her." No mention was made in Dr. Christian's interim report dated May 25, 2006, that Dr. Kalin did not find any evidence of post-concussion syndrome. On May 1, 2006, Dr. Christian wrote a prescription for hydrotherapy for M.M. for three times a week for four weeks. M.M. received treatment at CPS on May 1, 2006. M.M. indicated to the therapist that on a scale of one to ten that she rated her low back pain and low back stiffness as a four and her neck stiffness as a five. The therapist noted that there was cervical and lumbar tenderness. M.M.'s treatment on May 1, 2006, consisted of hot therapy and hydrotherapy to the cervical, thoracic, lumbar, and sacral areas, and intersegmental traction to the cervical, thoracic, and lumbar areas. X-rays of M.M.'s cervical and lumbar spine were ordered. The radiologist who read the X-rays had the impression that M.M. had a cervical muscle spasm and a lumbar muscle spasm. On May 4, 2006, M.M. received treatment at CPS. She rated her neck stiffness and low back stiffness as a three. There was no notation of any tenderness by the therapist. M.M. received the following treatment in the thoracic, lumbar, and sacral areas: hot therapy, intersegmental traction, and hydrotherapy. On May 4, 2006, ultrasound studies were performed on M.M. by Charles W. Hirt, M.D. (Dr. Hirt). Dr. Hirt's impression was that there were findings that showed evidence of a left- sided thoracic outlet syndrome. On May 9, 2006, M.M. returned to CPS for treatment. She rated her neck stiffness and lower back stiffness as a two. The therapist noted that there was tenderness in the cervical and lumbar areas. M.M. was given hot therapy, intersegmental traction, and trigger point therapy in her cervical, thoracic, and lumbar areas. She received myofascial release, massage, and hydrotherapy in her cervical, thoracic, lumbar, and sacral areas. On May 16, 2006, M.M. was treated at CPS. She rated her neck stiffness as a one and her low back stiffness as a two. The therapist noted tenderness in the lumbar area. The treatment to M.M.'s cervical, thoracic, lumbar, and sacral areas included intersegmental traction, trigger point therapy, myofascial release, and massage. She was given interferential treatment to her lumbar and sacral areas and hot therapy to her cervical, thoracic, and lumbar areas. On May 18, 2006, M.M. presented for treatment at CPS. She rated her neck and low back stiffness as a one. The therapist did not note any tenderness. M.M. received the following treatment in her cervical, thoracic, lumbar, and sacral areas: hot therapy, intersegmental traction, trigger point therapy, myofascial release, and massage. On May 23, 2006, M.M. went to CPS for treatment. She rated her lower back stiffness as zero. The therapist noted tenderness in the cervical, thoracic, and lumbar areas. M.M. was given a massage and myofascial release in her cervical, thoracic, lumbar, and sacral areas. She received inferential treatment and trigger point therapy in her lumbar and sacral areas and hot therapy and intersegmental traction in her thoracic, lumbar, and sacral areas. On May 24, 2006, Dr. Christian did a follow-up examination of M.M. M.M. rated the neck and lower back stiffness as zero. Dr. Christian noted in his follow-up report that all the symptoms that he had noted in his initial report of April 26, 2006, had improved. His follow-up report stated: "Cerebellar function tests, as far as assessed are abnormal with a positive Rhomberg test for possible concussion." His follow- up report also stated: "Certainly today, I see evidence of her continuing to have some alterations of visual acuity and a positive Rhomberg, which would be consistent with post concussion syndrome." On May 25, 2006, M.M. returned to CPS for further treatment. She rated her neck and low back stiffness as zero. The therapist noted tenderness in M.M.'s cervical and lumbar areas. M.M. was treated with myofascial release and massage in her cervical, thoracic, lumbar, and sacral areas. She received trigger point therapy in her lumbar and sacral areas and inferential treatment in her thoracic area. She also received intersegmental traction in her thoracic, lumbar, and sacral areas. M.M. received treatment at CPS on May 30, 2006. Again, she rated her neck and low back stiffness as zero. The therapist did not note any tenderness. Hydrotherapy, hot therapy, and intersegmental traction were provided to M.M. in her cervical, thoracic, lumbar, and sacral areas. She received inferential treatment in her lumbar and sacral areas. On June 13, 2006, M.M. again returned to CPS for treatment. She rated her neck and low back stiffness as zero. The therapist noted tenderness in M.M.'s cervical, thoracic, and lumbar areas. M.M. received intersegmental traction, myofascial release, and massage in her cervical, thoracic, lumbar, and sacral areas. M.M. was given hot therapy in her thoracic, lumbar, and sacral areas. She received trigger point therapy in her cervical and thoracic areas. On June 14, 2006, M.M. presented at CPS for a follow- up visit with Dr. Christian. She rated her neck and low back stiffness as zero. He reduced her treatment to one per week for the next four to five weeks. In his examination record of June 14, 2006, Dr. Christian noted: " R [circled] side vision distance diff." On June 20, 2006, M.M. returned to CPS for treatment. Again, she rated her neck and low back stiffness as zero. The therapist did not note any tenderness. M.M. was given hot therapy and intersegmental traction for her thoracic, lumbar, and sacral areas. She was given hydrotherapy for her cervical, thoracic, lumbar, and sacral areas. On June 22, 2006, ultrasound studies were done on M.M. by Dr. Hirt. His impression was that she likely had thoracic outlet syndrome on the left side. On May 24, 2006, Dr. Christian referred M.M. to Dr. Davidson for a second opinion for post concussion. Dr. Davidson examined M.M. on June 27, 2006. In his report dated June 27, 2006, Dr. Davidson concluded that she had had a mild concussion, a cervical strain, and a lumbosacral strain. He recommended that her soft tissue therapy be discontinued. Dr. Davidson did not find any abnormalities in M.M.'s vision. On July 25, 2006, M.M. was examined by Dr. Christian. M.M. rated her neck and low back stiffness as zero. Dr. Christian noted the following in his final report dated July 25, 2006. If the patient's symptoms of altered visual field persist and evaluation by an ophthalmologist or a neuro-ophthalmologist may be appropriate. If she begins to have any difficulty with sleep, mood swings, feelings of dizziness or persistent headaches a neuro-psychiatric evaluation for continued post concussion deficits may be appropriate. Dr. Christian discharged M.M. on July 25, 2006, and M.M. was to return for treatment on an as needed basis. Dr. Christian's initial report dated April 26, 2006; interim report dated May 24, 2006; follow-up report dated June 14, 2006; and final report dated July 25, 2006, were dictated by Dr. Christian. The reports were being mailed to someone or some entity based on the note at the end of each report, which stated: "DICTATED BUT NOT PROOFREAD TO AVOID DELAY IN MAILING." At the closing of each report, Dr. Christian stated: "If I can be of further assistance in this regard, please do not hesitate to contact me." It is not clear to whom the reports were directed, but it is clear that the reports were meant to convey the examination, evaluation, and treatment of M.M. to the reader of the report. These reports did not accurately report the examination results of M.M. in at least two instances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Christian violated sections 460.413(1)(m) and 460.413(1)(ff) and rule 64B2-17.0065; finding that Dr. Christian did not violate sections 460.413(1)(n) and 460.413(1)(r); imposing an administrative fine of $2,500; placing Dr. Christian on probation for one year; and requiring Dr. Christian to attend a continuing education course on record-keeping. DONE AND ENTERED this 15th day of November, 2011, in Tallahassee, Leon County, Florida. S SUSAN BELYEU KIRKLAND 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 15th day of November, 2011.
