Findings Of Fact The Respondent, Joya L. Schoen, graduated from medical school in 1966. Dr. Schoen is board eligible in psychiatry. T. 195-96. She had three years residency in general psychiatry and a two year fellowship in child psychiatry. From 1967 to about 1979, she practiced in psychiatry. Dr. Schoen has been licensed by the State of Florida since 1973. The Respondent's father was a physician, and in 1979, she began to take over his practice in general medicine. The Respondent took about three years to discontinue her psychiatric practice and assume her father's general practice. T. 196. On June 14, 1985, a patient, who will identified by her initials, K. H., was referred to Dr. Schoen by another physician, Dr. Mengel. T. 197. Her symptoms were an inability to concentrate, "spaciness," pervasive fatigue, P.M.S. (premenstrual syndrome), and irregular-periods. Her symptoms were aggravated by certain foods, fumes, and perfumes. T. 217. K. H. had discovered that dairy foods and foods containing high- carbohydrates aggravated her condition, and she was then avoiding them in her diet. T. 218. K. H. had already been seen by a Dr. Mengel, and he had recommended that she receive allergy testing. T. 198. Dr. Schoen had K. H. take the RAST I.G.E. test. T. 217. The RAST I.G.E. test is a screening test to determine, in a general sense, whether a patient has allergies. T. 216; (Supplemental Transcript, ST) ST-14. The degree of allergy is related to the score. A score over a hundred is considered a positive indication of the presence of allergies. T. 217. K. H.'s score on the RAST I.G.E. test was 1,993, T. 85, which was an extraordinarily high level, T. 88-89, indicating a probability of a high degree of allergy. T. 217, ST-14. The RAST test, like the cytotoxic test, is performed on blood samples, and thus is not traumatic to the patient. T. 222. All witnesses viewed this test as an acceptable test. Dr. Schoen also did a general screening for allergies, and determined that environmental allergies were not very high. T. 218. That left food allergies to be investigated. Id. Cytotoxic testing tests for food allergies, or more precisely, for adverse reaction of white blood cells to foods. T. 218, 233. The cytotoxic test confronts samples of the patient's blood with certain foods. The reaction of the leukocytes in the patient's blood is observed. ST-12; T. 47. Foods which cause reactions are then selectively removed from the patient's diet, and the increase or decrease of the allergy is observed. In this way, by trial and error, it is hoped that the particularly food to which the patient is allergic will be identified. Cytotoxic testing was available in 1985, and had been available since at least 1979. Approximately ten thousand cytotoxic tests were conducted from 1979 to 1986 by the laboratory that performed the cytotoxic test for Dr. Schoen for K. H. T. 158. Hundreds of physicians ordered cytotoxic testing from this laboratory; some physicians ordered it repetitively. T. 171. See also T. 101. The users of the cytotoxic test were primarily medical doctors, but were also doctors of osteopathy, chiropractors, and dentists. T. 172-73. The laboratory ceased performing the test in 1986 due to increasing questions concerning the efficacy and reliability of the test and the advent of better tests. T. 165-67. A large number of physicians have used the cytotoxic test at one time or another. ST-12; T. 172-73. Dr. Schoen traveled to Washington, D. C., to learn more about cytotoxic testing. T. 234. She also discussed the utility of the test with another physician. T. 233. Dr. Schoen has used the cytotoxic test about forty or fifty times; in some cases the test has led to marked improvement in the patient's condition, and in other cases, the test has not been helpful. T. 219. She was not aware of any patient having been harmed by use of the test. T. 221. Cytotoxic testing for food allergies ordinarily was less expensive than skin testing. T. 190-92. In August, 1983, the Health Care Financing Administration, United States Department of Health and Human Services, issued in the Federal Register a notice that cytotoxic testing would not be reimbursed by that agency under Medicare coverage. P. Ex. 3. The notice in the Federal Register noted that "there was a wide range of conflicting views regarding the efficacy of cytotoxic food testing ..." P. Ex. 3, p. 37717. The article discusses a number of evaluations of the test, some favorable to the test, and many unfavorable. Cytotoxic testing is a subjective test, T. 47, and is considered by some physicians to be experimental and useful only in research. T. 50. Nonetheless, as discussed above, a large number of physicians disagreed, and used the test in their practice from 1979 through 1985. Since 1985, other tests have come along that are more reliable than the cytotoxic test, and the cytotoxic test is no longer given. T. 220-21. Currently, Dr. Schoen does not use the cytotoxic test, but uses tests like the RAST test in part because it is covered by insurance, and cytotoxic testing is not. (The other reason is that the laboratory that performed cytotoxic testing for Dr. Schoen has discontinued the test.) T. 222. When she arrived at Dr. Schoen's office, K. H. had read The Yeast Connection by William G. Crook, M.D. (R. Ex. 1), and asked Dr. Schoen to give her a cytotoxic test. T. 197-98. K. H. had concluded that she preferred the cytotoxic test because she thought it would be less stressful than other allergy tests. T. 198. She also wanted to be given treatment with the drug Nystatin in hopes that she could avoid shots, desensitization, and a long and expensive process of allergy treatments. T. 199. It is inferred that K. H. was fully aware that the diagnosis of systemic candidiasis and treatment by Nystatin as described by Dr. Crook was a new theory. This inference is based upon the fact that she had been to several physicians, none of whom turned to Dr. Crook's theory, and that she was familiar with Dr. Crook's book. T. 198-99. It is evident from Dr. Crook's book, which is entitled in part "A Medical Breakthrough," and in the first few pages communicates an awareness that the theory is quite new and still not' accepted by mainstream medicine. R. Ex. 1. This finding of fact is further corroborated by the affidavit of K. H. R. Ex. 8. Dr. Schoen gave K. H. reading material about cytotoxic testing and discussed with K. H. the nature of the cytotoxic test and the alternative procedures that were available, that is, to be referred to a physician who specialized in allergies, and to undergo allergy testing by skin testing using needles and shots. See T. 25, 199. This finding is corroborated by the affidavit of K. H., wherein K. H. states that Dr. Schoen explained to K. H. that cytotoxic testing was accepted by only a minority of physicians. R. Ex. 8. K. H. said that she was terrified of needles, and was so allergic to so many things that such testing might make her worse. K. H. wanted to try cytotoxic testing and treatment with Nystatin before trying testing by an allergist. T. 202, 236. K. H. understood that the cytotoxic test was an out-of-the-mainstream test and was perhaps not proven. T. 199; R. Ex. 8. Dr. Schoen's written records of treatment of K. H. do not show consent of K. H. to take the cytotoxic test, or advice to K. H. by Dr. Schoen that the test was experimental and that other alternatives existed. T. 54. Dr. Schoen did not make a written record of her advice to K. H. concerning the cytotoxic test, or of K. H.'s understanding of the nature of the test. The affidavit of K. H., R. Ex. 8, constitutes after-the-fact written evidence of such explanation by Dr. Schoen and consent and understanding by K. H. Failure to obtain written consent from K. H. prior to cytotoxic testing had no adverse effect or potential adverse effect to the health of K. H. T. 68. Dr. Schoen directed that K. H. be given a cytotoxic test. T. 218. Dr. Schoen diagnosed K. H.'s condition as allergies and systemic candidiasis. T. 218. Dr. Schoen prescribed treatment with Nystatin and a diet that avoided yeasty foods, such as dairy foods and foods containing high carbohydrates. T. 218. K. H. took Nystatin as prescribed by Dr. Schoen from June, 1985, to November, 1985. This is the course of treatment recommended by William. G. Crook, M.D., for systemic candidiasis. Id. Dr. Schoen told K. H. that Nystatin is usually given to treat candidiasis, and that the drug is virtually nontoxic and safe. She also told K. H. that Nystatin was not something a regular physician would prescribe for her condition, but that it was widely used among physicians that she knew with safe results. T. 201. This finding is corroborated by the affidavit of K. H. R. Ex. 8. Nystatin is one of the safest drugs available to physicians today, having no serious side effects. ST-9. It is well-tolerated by patients. T. 45. Nystatin is an antifungal medicine that is frequently used to treat localized candidiasis. The alternative course of testing and treatment by an allergist would perhaps take one to three years, and would ultimately be quite a bit more expensive than the testing and treatment selected by Dr. Schoen, due to the need in such alternative treatment for numerous physician visits and shots. T. 203- 04. This finding of fact is corroborated by the medical report of Elmer M. Cranton, M.D. R. Ex. 7, p. 2. Some maladies are difficult to diagnose, but may be diagnosed through trial therapy. Trial therapy is a course of nontoxic therapy without a specific diagnosis. If health improves during such therapy, it is concluded that the patient had the disease treatable by such therapy. T. 200, 205. It is not uncommon in medicine for a physician to prescribe a course of treatment that in fact works to either cure the malady or relieve the symptoms, but no one understands scientifically why it works. T. 205-06. This finding of fact is corroborated by R. Ex. 6, attachment: "`Think Yeast'--The Expanding Spectrum of Candidiasis," reprinted by "The Journal of the South Carolina Medical Association," and by R. Ex. 1, "A Special Message for the Physician," p. 2. The diagnosis of systemic candidiasis cannot be tested by conventional scientific tests. This finding of fact is corroborated by R. Ex. 4, p. 10. It may take many months, or a year or two years, for a patient to respond to Nystatin treatment. Dr. Schoen saw no significant improvement in K. H. from June, 1985, to November, 1985, when she was her patient. T. 236. K. H. had psychological problems when she visited Dr. Schoen. Dr. Schoen was aware that K. H. had psychological problems, but determined that she deserved a chance to receive the treatment Dr. Schoen selected because it was not harmful, and might be of help to her in her case. T. 201. Dr. Schoen assessed K. H.'s circumstances and determined that medical treatment should be attempted first, and that psychological treatment was then not appropriate. Her conclusion was based upon her observation that due to K. H.'s symptoms (irregular memory, spaciness, and fatigue), K. H. would not be capable of participating in psychological therapy. She also noted the dysfunctional condition of her parents as an additional reason that psychological treatment was not appropriate at that time. T. 202-04. Finally, K. H. was a newly converted fundamentalist Christian, and had turned to religion for emotional help. She had psychological counseling suggested to her, but apparently did not follow up on the suggestion. Under these circumstances, Dr. Schoen concluded that psychological counseling was not possible at that-time. T. 238. Dr. Schoen did not discuss these conclusions with K. H. There is no evidence that she should have discussed these conclusions with K. H. Dr. Robert M. Stroud graduated from medical school in 1956, and is licensed to practice in Florida, Alabama, and North Carolina, and is board certified in internal medicine, allergy, immunology, and rheumatology. His board certification in immunology was in 1974. Dr. Stroud practices in Ormond Beach, Florida, and specializes in allergy and rheumatology, ST-4,6. Allergy is a subspecialty of internal medicine. ST-15. He was a professor of medicine at the University of Alabama for 14 years, teaching medicine, microbiology, and immunology. ST-3. He has been a clinical professor at the University of Florida since 1982. ST-4, 6. Dr. Stroud was accepted as an expert in medicine, allergy, and immunology. ST-7. Dr. Stroud uses the diagnosis "yeast allergy" or candida allergy" in his practice, and by that diagnosis, means the same thing as systemic candidiasis. ST-7. He views the condition as an allergic reaction to yeast on the surface of membranes. Id. When Dr. Stroud makes the diagnosis of yeast allergy, or if he strongly suspects that diagnosis, the treatment he prescribes is a yeast elimination diet and Nystatin administered orally. ST-9. Dr. Schoen discussed K. H.'s case with Dr. Crook, and Dr. Crook told Dr. Schoen that he agreed with her diagnosis and course of treatment. T. 206- 11; R. Ex. 6. Dr. Schoen also discussed K. H.'s case with Elmer Cranton, M.D., and Dr. Cranton told Dr. Schoen that he agreed with her diagnosis and course of treatment. T. 211-15; R. Ex. 7. (Both of these findings of fact find that Dr. Schoen was in fact told this by both physicians. To the extent that the opinions of these two physicians are offered for the truth of the opinions, the evidence is hearsay, but is corroborative of the finding of fact which follows.) The diagnosis of systemic candidiasis, or yeast allergy, as used by Dr. Stroud, is used by a thousand or more physicians in this country who practice internal medicine, osteopathy, and allergy medicine, and the number has been growing rather than diminishing. ST-10, 16-17. Serious research continues in this field, and a large number of physicians in the country have seriously investigated the possible link between candida and the immune system. ST-11. A substantial minority of physicians in Florida and in other states agree with the theories of diagnosis and treatment of Dr. Crook in The Yeast Connection, and believe that systemic candidiasis is a medically proper diagnosis. T. 225, 228- 30, and the testimony of Dr. Stroud. This finding of fact is corroborated by R. Exs. 2, 6 (attachments), and 7, and T. 206-15. The American Academy of Allergy has issued position papers disapproving the diagnosis of systemic candidiasis and cytotoxic testing, and calling them experimental. P. Ex. 2. 45. Dr. James E. Quinn is a medical doctor and has practiced family medicine in Sanford, Florida, for 11 years. He has been board certified in family practice for the last 8 years. T. 10. On about November 26, 1985, K. H. came to Dr. Quinn for treatment. Her sister and brother-in-law were concerned about the treatment she was receiving from Dr. Schoen, and told Dr. Quinn that the family felt that K. H. actually had an emotional problem. T. 10. K. H. complained that she was being poisoned by the environment around her, by chemicals, by perfumes, and by foods. T. 11. She could not tolerate certain foods, would become confused when near perfume, and her period was irregular. T. 12. She was chronically fatigued. T. 12. K. H. was examined by Dr. Quinn. Dr. Quinn diagnosed the existence of a severe emotional problem, but found no evidence of a typical amount of allergic disease. T. 11. In Dr. Quinn's opinion, systemic candidiasis occurs only in association with severe illnesses in a general hospital setting, such as certain carcinoma, leukemia, AIDS, after chemotherapy, or after sustained use of antibiotics. T. 12-13, 22. This form of candidiasis occurs in identifiable areas, such as the esophagus, the bladder, or other systems. T. 22. Dr. Quinn was of the opinion that it would be proper to treat this form of systemic candidiasis with an infectious disease medication and with an antifungal agent such as Nystatin. T. 23-24. Dr. Quinn had no familiarity with the concept of systemic candidiasis as set forth by Dr. Crook. T. 26. Dr. Quinn had no personal experience with cytotoxic testing. T. 25. Dr. Quinn saw K. H. only once, T. 19, and did not review Dr. Schoen's records for K. H. T. 26. Dr. Quinn referred K. H. to a psychiatrist, Dr. Moises, for mental health evaluation, and referred K. H. to an allergist, Dr. Alidena, for an allergy evaluation. T. 13-14. Dr. Alidena felt that K. H. possibly had mild food allergies. T. 18. She recommended a food elimination diet and wait for the psychiatric report. Id. Dr. Eugene F. Schwartz is a medical doctor who has been in private practice specializing in adult and pediatric allergy and immunology since August, 1983, in Altamonte Springs, Florida. T. 28, 30. He is board certified in pediatrics and allergy and immunology. T. 29. He is a member of the American Academy of Allergy and Immunology, an organization composed of the largest number of board certified allergists and immunologists in the country. T. 41, 104. Dr. Schwartz agreed with Dr. Quinn that systemic candidiasis occurred in certain severely debilitated patients, such as those with cancer, or having immune suppression problems. T. 37. Dr. Schwartz was of the opinion that systemic candidiasis as described by Dr. Crook was not an appropriate diagnosis, and thus that prescription of Nystatin for such a diagnosis was inappropriate because the diagnosis "did not exist." T. 39-40. Dr. Schwartz had two methods of diagnosing patients who thought that they had systemic candidiasis after reading Dr. Crook's book: to either find another cause of the problems or to advise the patient that he (Dr. Schwartz) did not know what the cause of the problem was. T. 40, 44. If a patient came in complaining of adverse reactions after eating certain foods, Dr. Schwartz would have prescribed a skin test for food allergies. T. 48. Dr. Schwartz was of the opinion that the cytotoxic test was spurious and "quite experimental," and should be limited to research projects. T. 50. Dr. Schwartz was of the opinion that Dr. Schoen's practice with respect to diagnosis of K. H. as having systemic candidiasis was "outside the mainstream of medicine, that other prudent, physicians would not have done so." T. 65. He was also of the opinion that prescription of Nystatin was not proper, that use of cytotoxic testing was not proper, and that lack of written informed consent to the cytotoxic test was not proper. T. 66-67. Dr. Schwartz believed that a minority of physicians thought that the diagnosis of systemic candidiasis is a proper diagnosis. T. 109. Dr. Schwartz stated that Dr. Crook is one of the leading authorities with respect to the diagnosis of systemic candidiasis and treatment by use of Nystatin, T. 70, and agreed that there have been other articles supportive of Dr. Crook's Views. Id. Dr. Schwartz testified that the symptoms that K. H. presented to Dr. Schoen met the criteria for Dr. Crook's diagnosis of systemic candidiasis. T. Dr. Schwartz also agreed that if the diagnosis of systemic candidiasis was proper, Dr. Schoen did prescribe the proper treatment as recommended by Dr. Crook, and that her prescription of Nystatin was proper as recommended by Dr. Crook. T. 42, 81. Dr. Schwartz also conceded that a minority of physicians used cytotoxic testing to determine the presence of allergies to various given substances. T. 110. Dr. Joseph Akerman has been in the general practice of medicine since 1952 in Apopka, Florida. He is board eligible in family practice medicine. T. 120. He was accepted as an expert witness in the practice of medicine, including the standard of care for general medical practitioners and family practitioners in the Orlando area. T. 122. Dr. Akerman had never seen a case of systemic candidiasis. T. 124. Dr. Akerman would not use that diagnosis in his own practice, nor would he use the course of treatment prescribed by Dr. Crook. T. 124, 130. He was not familiar with any physicians who subscribed to Dr. Crook's theories. T. 131. Dr. Akerman personally disagreed with Dr. Crook's theories. T. 130. If Dr. Crook's theory of systemic candidiasis were correct, Dr. Schoen's diagnosis of systemic candidiasis in the case of K. H. was correct, in Dr. Akerman's opinion. T. 130. On December 31, 1987, the Respondent filed a motion to dismiss the administrative complaint. The motion raised two issues: whether the probable cause panel considered some evidence that the violations alleged occurred, and whether the probable cause panel was composed of three members as required by law. Attached to the motion was a transcript from that portion of the meeting of the probable cause panel that considered the charges against the Respondent. That transcript was admitted into evidence as R. Ex. 4. The probable cause panel met in Palm Beach, Florida, on August 21, 1987. Two members were present. The members present had been furnished the investigative report and a recommendation. R. Ex. 4, p. 3-5. The transcript shows who attended the meeting, but does not show the composition of the panel. The two members agreed with the administrative complaint. R. Ex. 4, p. 10-11, with one exception which apparently was deleted from the complaint. Id. at p. 10. The Petitioner submitted an affidavit concerning the composition of the probable cause panel. P. Ex. 7. The affidavit is hearsay, and cannot be relied upon to make a finding of fact as to the composition of the probable cause panel. There is no competent evidence in the record from which a finding of fact can be made that the probable cause panel in this case was composed of less than three members.
Recommendation For these reasons, it is recommended that the Department of Professional Regulation, Board of Medicine, enter its final order dismissing the administrative complaint against the Respondent. DONE and ENTERED this 26th day of September, 1988, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4351 The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used are the numbers used by the parties. Numbers have been sequentially attributed to the unnumbered paragraphs filed by the Respondent. Statements of fact contained in this appendix or adopted herein by reference are intended to be additional findings of fact. Findings of fact proposed by the Petitioner: 5. A categorical finding that the cytotoxic test was considered to be purely experimental by allergists and immunologists cannot be made in view of the fact that many physicians used the test in the years in question. The record cited does not contain evidence that Nystatin is a legend drug. Findings have been made that K. H. received this drug through prescription by Dr. Schoen. The first sentence is not supported by the record cited. The second sentence is thus not relevant. Since a substantial minority of physicians accept the diagnosis of systemic candidiasis as described by Dr. Crook, the word "only" in the first sentence is rejected. The second sentence is a true statement of the opinion of the majority of such physicians, but a substantial minority of physicians disagree. All physicians who testified agreed that K. H.'s symptoms were consistent with the diagnosis of systemic candidiasis as described by Dr. Crook. It is true that K. H. did not suffer from a severe illness of the type with which systemic candidiasis is also a potential associated diagnosis. Since systemic candidiasis as described by Dr. Crook cannot be detected by testing, the lack of the tests set forth in this proposed finding of fact is irrelevant. Diagnosis by trial therapy is a medically accepted way to proceed where testing is ineffective for diagnosis. Rejected for the reasons stated in findings of fact 11-14. Rejected for the reasons stated in findings of fact 18-25. Rejected for the reasons stated in findings of fact 30-36, 39-43, 62- 64, and 69. Findings of fact proposed by the Respondent: 1. The first sentence of this proposed finding of fact is subordinate to findings of fact that have been adopted. It is true, however, and is adopted by reference. 3. Mr. Zavik was accepted only a- an expert in cytotoxic testing procedures. T. 164, 166, 169-70. He did not have expertise to express an opinion as to the jurisdiction of the Food and Drug Administration. The second sentence is cumulative and unnecessary. 9. The fourth sentence is cumulative and unnecessary. The sixth sentence is subordinate to findings of fact that have been adopted. It is true, however, and is adopted by reference. 14. These proposed findings of fact are not supported by the record cited. The summary of what Dr. Godorov said is confused and ambiguous. 17. The sixth sentence is cumulative and unnecessary. The second sentence is irrelevant. The second is subordinate to findings of fact that have been adopted. It is true, however, and is adopted by reference. 25 and 28. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. 29. The second is subordinate to findings of fact that have been adopted. It is true, however, and is adopted by reference. 31. These proposed findings of fact are irrelevant since the summary of what Dr. Godorov said is too confused and ambiguous to be a basis for a finding of fact. COPIES FURNISHED: Robert D. Newell, Esquire Newell & Stahl, P.A. 817 North Gadsden Street Tallahassee, Florida 32303-6313 Salvatore A. Carpino, Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Ms. Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue In re: Case No. 94-0083 Whether disciplinary action should be taken against the Respondent's license to practice psychology, by violating of Section 490.009(2)(s), Florida Statutes, by undertaking activities for which the licensee is not qualified by training, experience, or licensure. As to DOAH Case No. 96-00819 Whether disciplinary action should be taken against Respondent's license to practice psychology by violating Section 490.009(2)(s), Florida Statutes, by having failed to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance, including the undertaking of activities for which the licensee is not qualified by training or experience (2 counts). Whether Respondent violated Section 490.009(2)(q), Florida Statutes, by violating provisions of Chapter 490, Chapter 455, or any rules adopted pursuant thereto. Whether Respondent violated Section 490.009(2)(v), by failing to maintain in confidence a communication made by a patient or client in the context of such services, except by written permission or in the face of a clear and immediate probability of bodily harm to the patient or client or to others. Whether Respondent violated Section 490.009(2)(m), Florida Statutes, by soliciting patients or clients personally, or through an agent, through the use of fraud, intimidation, undue influence, or a form of overreaching or vexatious conduct.
Findings Of Fact as to Case No. 94-0083 Respondent is a psychologist, licensed in the State of Florida with license number PY 0002281. Respondent does not hold a license in Florida as a health care provider. Psychologists are involved in health psychology and behavioral medicine. Psychologists frequently treat disorders such as obesity, smoking, hypertension, coronary prone behavior patterns, cancer, and chronic pain. It is appropriate for a psychologist to be involved with the treatment of these disorders, as a psychologist. It is not routine for a psychologist to act as a physician's assistant. Respondent was the owner and Director of Associated Health Professionals (AHP) which operated in the 1980's and early 1990's in Maitland, Florida. It provided interdisciplinary health care to patients, including general medical, psychological services and an allergy clinic. In an allergy practice, the physician is the only person who orders allergy tests, determines which tests need to be performed, reviews test results, determines the course of treatment, and determines which medications to prescribe. Hormones such as testosterone, estrogen, and progesterone always require a prescription by a physician. As a psychologist, Respondent ran a specialized allergy clinic, yet he failed to hire physicians with special training in allergies. The Respondent functioned in multiple roles by acting as a medical assistant to the physicians in the allergy clinic and by providing therapy. Patients frequently reported to AHP on weekends for allergy testing, glucose tolerance tests, EKGs, and blood work. If the tests were not ordered during the week, Respondent ordered them to be performed on the weekends. AHP sent blood work to an outside laboratory. When test results came in, they were given to the medical director. Respondent also reviewed them if they were allergy related. Staff meetings were held at AHP once or twice weekly in order to discuss current patients or administrative business. Respondent typically conducted these meetings. The medical director did not instruct the technicians regarding the treatment of each patient. The treatments were dictated by protocols which had been put into place by a Dr. Hoover, a prior Medical Director at AHP. Once allergy testing was performed, treatment was dictated by these protocols. Once a patient was established and treatment was begun, the staff just followed protocol. They did not confer with the doctor after each patient visit. If there were no physicians on duty at AHP on Saturdays, the clinic had a phone number of a physician who was on call for them. Jack H. Van de Car, D.O. is an osteopathic physician who held the position of Medical Director at AHP for approximately 16 months from December 1987, through May 1989. Dr. Van de Car provided medical supervision of the allergy clinic. However, there were treatment protocols in place for the allergy clinic when he arrived at AHP. Dr. Van de Car's training in allergy consists of seminars, six weeks of training during medical school in 1963, and general medical practice. Only in unusual cases would Respondent or Dr. Van de Car alter the "standard" treatment plan dictated by the protocols. Dr. Van de Car would examine allergy patients and then refer them to the allergy lab. He did not test patients for allergies. Respondent was the Director in charge of AHP. He was in the allergy lab on a daily basis. Respondent and Dr. Van de Car reviewed allergy test result summaries. Dr. Van de Car did not review results of all allergy tests which were performed in the clinic. Respondent would interpret allergy test results and offer suggestions as to how they should be interpreted. A form, signed by Dr. Van de Car, appoints Respondent as Dr. Van de Car's medical assistant. This form would entitle Respondent to perform the enumerated procedures at Dr. Van de Car's direction while in the allergy lab. Dr. Van de Car was the only person at AHP licensed to issue prescriptions. On two occasions, Dr. Van de Car found that prescriptions had been renewed in his absence by Respondent. Despite the fact that these were not new prescriptions, Dr. Van de Car was concerned because he would not have renewed them himself but would have chosen to try a new prescription. Dr. Van de Car met with the Respondent and asked him not to repeat that procedure again. Respondent performed procedures which were not ordered by Dr. Van de Car and which would not have been ordered by him. Dr. Van de Car discontinued his practice at AHP in May 1989, and was replaced by William Rick, who he believed to be licensed in Florida as a physician. Andrew Feldman, D.O. was hired by Respondent as the Medical Director for AHP sometime in 1990 and remained until the summer of 1992. Dr. Felman had no rotation in allergy and no internship. He had taken approximately four to five courses in allergy in medical school. Dr. Felman is certified in Family Practice. Dr. Feldman normally did not report to the clinic on Saturdays. Respondent was not appointed as Dr. Feldman's medical assistant in the allergy lab. Respondent continued to work in the allergy lab on a regular basis. Solomon Klotz, M.D., is a physician specializing in allergy and clinical immunology. He has practiced in Florida since 1945. Dr. Klotz trained Respondent in immunology and allergies and at one time permitted Respondent to perform a study on "end point titration" in his clinic. However, Dr. Klotz was not comfortable with this method of treatment as he was unable to determine honestly if the treatment was producing a purely placebo effect or whether it was truly scientific. When Dr. Klotz's son, a physician, and Stephen Rosenburg, M.D., an associate in the practice, both expressed discomfort with Respondent's study, Dr. Klotz discontinued the study. Dr. Klotz himself ceased utilizing end point titration as a treatment method in favor of more proven methods. Lawrence Siegel, M.D., Ph.D., is an allergy physician who has been licensed in Florida since 1981. He has a Ph.D. in biochemistry and immunology. Dr. Siegel is board certified in pediatrics, allergy and immunology, and diagnostic laboratory immunology. He maintains a private practice which is devoted entirely to allergy patients. Dr. Siegel testified as an expert in the practice of medicine and allergy and immunology. Dr. Siegel reviewed Respondent's chart for Scott Donley. Dr. Siegel recounts Scott Donley was treated at AHP using the method known as "end point titration." In this method, after a patient has had initial testing to determine what he or she is allergic to, the person doing the testing takes every single individual allergen the person was tested for and tries to determine at what point the test changes from positive to negative. This technique is no longer used by most Florida allergists, as it involves a lot of testing and needles. In 1981, the American Academy of Allergy published a statement regarding end point titration. It stated that end point titration has no plausible or immunologic basis when used as a method of treatment and diagnosis of allergic disease. Four controlled clinical studies showed this method to be ineffective. The use of end point titration is not commonly used in the State of Florida, but its use is not below the standard of care for patients in Florida. Even if a person worked under the supervision of an allergist, that person could not legally practice medicine, order tests, or interpret them. The performance of a skin test can be left to the medical technician, but the interpretation should be done by a physician and noted in the chart. Scott Donley was first presented to Associated Health Professionals (AHP) in 1988 during his senior year of high school for treatment of allergies. Scott was a golfer, and was having a problem with allergies on the golf course. At the time, he was the #1 seed on his high school golf team. Scott's mother, Patricia Donely, was referred to the Respondent and the clinic by the owner of a health food store in Deland, Florida. At his first appointment, Scott was seen by Jack Van de Car, D.O. who gathered a patient history and performed a physical examination. Dr. Van de Car examined Scott at this time and referred him to the allergy clinic. After his first appointment, Scott saw Dr. Van de Car for chiropractic manipulations and electric stimulation treatment. He also prescribed medication for allergy, pain, and muscle relaxants. Generally, Scott saw the AHP staff and Respondent. On a typical day, Respondent would come into the room, review Scott's chart for the previous day, and dictate the day's treatment. It was Respondent who discussed Scott's allergy treatment with him. It was Respondent who corresponded with Patricia Donley regarding her son's treatment. If she had questions, Respondent would answer them for her. Respondent was the primary treating health care provider of Scott Donley. Scott underwent a series of procedures known as "end point testing" or "end point titration." He tested positive on 132 out of 136 allergens. Scott was placed on a very strict diet and was given vitamins and injections of progesterone, testosterone and estrogen. He was also instructed to take Vitamin E. Scott's diet prohibited him from eating regular bread. He ate millet bread and millet muffins. Scott lost 35 pounds due to his change in diet. At one point, the Respondent advised Mrs. Donley to wash Scott's food in bleach; however, she refused. At first, Scott presented to AHP on what would be considered a normal appointment schedule. When his condition did not improve, Scott and his parents suggested to Respondent that Scott withdraw from his senior year of high school in order to report to AHP on a daily basis for testing. Scott withdrew from school. For a period of four or five months, Scott reported to AHP six days a week for eight hours a day in order to undergo end point testing. Occasionally Scott was hooked up to a black box referred to as "the Lollapalooza." This was a black box with clips which attached to Scott's earlobes. Electrical current was administered through the clips. Soon Scott was taught how to inject himself. Scott was ordered to give himself multiple injections daily. On at least two occasions, Scott suffered allergic reactions which required the insertion of an I.V. On one of these occasions, Scott's father, Mark Donley, was summoned to AHP. Mr. Donley was told that Scott had reacted to one of his medications and that they were flushing out his system. Mr. Donley witnessed Respondent inserting an I.V. into his son's arm and giving instructions to Kelly Luther, the nurse. Scott came to AHP on Saturdays for more end point testing. On occasion, Scott also received massage therapy from the Respondent. Scott's condition deteriorated over time. Scott described his condition as a general weakening. Scott began to experience arthritis-like symptoms, with stiffness in the mornings and swelling in his hands. Scott was forced to wear a mask on the golf course due to his allergic reactions. During this period of time, Scott sought psychotherapy from the Respondent, on an occasional basis, due to the severe diet and changes in his social life. When Scott's condition began to worsen, Mrs. Donley expressed an interest in getting a second opinion. Respondent did not encourage her to do so. Scott remained a patient at AHP from November 1988, until December 1989. When Scott's condition still did not improve, Scott was taken to Shands Hospital in Gainesville, Florida for an evaluation. The physician at Shands diagnosed Scott as being free of disease. He ceased Scott's medications and vitamins and took him off of the special diet. Respondent criticized Shands Hospital in a letter to Patricia Donely. Scott's physical condition gradually improved and he is currently employed as an Assistant Golf Professional in Jacksonville, Florida. Respondent's treatment records for Scott Donley were predominately medical. There were no treatment goals or plans, nor any progress notes of therapy. There should have been two patient records, one for medical treatment and one for psychotherapy. Billing records indicate physician visits were performed, but the record does not contain any physician notes. Scott's allergy treatment at AHP was below the standard of care in the State of Florida. There was very little physician involvement in the case. There was no physician examination at each patient visit. There was insufficient physician documentation as to testing and treatment performed between doctor's visits. There was no evaluation of whether the treatment was or was not working, just more and more testing. There was no discernible treatment plan or goals. Respondent denies diagnosing treatment for Scott Donley and denies ever prescribing medication for patients. He also states that he never started a psychotherapy chart on Scott Donley. His denial of diagnosing treatment for Scott Donley is not credible. Respondent practiced beyond the scope of his license as a psychologist in his treatment of Scott Donley.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board find the Respondent guilty of violating Section 490.009(2)(s), Florida Statutes (1 count), in regard to DOAH Case No. 94-0083; not guilty as to Counts I and III in DOAH Case No. 96-0819; guilty of violating Sections 490.009(2)(q), Florida Statutes, Section 490.009(2)(v) Florida Statutes, and Section 490.009(2)(m), Florida Statutes (Counts II, IV and V) in Case No. 96-0819. It is further RECOMMENDED, as punishment therefore: The license of George Von Hilsheimer, Ph.D., be suspended for a period of six months followed by a period of probation of one year; that he pay an administrative fine of $2,000, pay the costs of the prosecution of this matter, and that the Board impose such other and necessary conditions on Respondent's probation as they deem necessary and appropriate. DONE AND ENTERED this 18th day of December, 1997, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1997. COPIES FURNISHED: Joseph Alexander Scarlett, III, Esquire 208 West Howry Avenue DeLand, Florida 32720 Nancy M. Snurkowski, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Dr. Kaye Howerton, Executive Director Agency for Health Care Administration Board of Psychology Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in these cases are whether Respondent violated sections 458.331(1)(t), 458.331(1)(m), and 458.331(1)(n), Florida Statutes (2004), and section 458.331(1)(t), Florida Statutes (2006), and, if so, what discipline should be imposed.
Findings Of Fact Petitioner is the state department charged with regulating the practice of medicine in Florida pursuant to section 20.43, Florida Statutes (2010), and chapters 456 and 458, Florida Statutes (2010). At all material times to the Administrative Complaints, Dr. Rubinstein was licensed as a medical doctor within the State of Florida, having been issued license number ME37720. He is an otorhinolaryngologist, meaning he is a specialist in ears, nose and throat, and facial plastic and reconstructive surgery. He also treats allergies. On November 7, 2003, Dr. Rubinstein and the Department entered into a Consent Agreement, related to the following Administrative Complaints filed against Dr. Rubinstein: Case No. 2001-07091, Case No. 1999-5773, and Case No. 2000-02195. Based on the Consent Agreement, a Final Order, DOH-04-0020-S-MQ, was filed by the Board on January 7, 2004, imposing a fine of $25,000; imposing 60 hours of community service; requiring Dr. Rubinstein to submit to a two-day evaluation at the Institute for Physician Education (IPE); requiring Dr. Rubinstein to comply with the recommendations resulting from the evaluation at IPE; and placing Dr. Rubinstein on probation for five years. On August 6, 1993, the Department of Business and Professional Regulation (DPR) and Dr. Rubinstein entered into a Consent Agreement to resolve DPR Case Nos. 90-06221, 91-06043, 91-08800, 91-12051, 92-00308, 92-11650, 92-11763. The Consent Agreement provided a stipulated disposition of a $10,000 fine and probation for five years. The Consent Agreement was adopted by a Final Order of the Board filed August 23, 2009. On May 11, 1993, DPR and Dr. Rubinstein entered into a Consent Agreement relating to DPR Case No. 92-13503. The Consent Agreement provided a stipulated disposition of a $5,000 fine, a reprimand, and requirement that Dr. Rubinstein review section 458.331, Florida Statutes, and Florida Administrative Code Chapter 21M. The Consent Agreement was adopted as a Final Order by the Board on June 8, 1993. On August 24, 1992, the Board entered a Final Order in DPR Case Nos. 0081610, 8906844, 8903225, 109405, and 8907280 finding Dr. Rubinstein guilty of violations of subsections 458.331(1)(d), (k), (m), (n), (t), and (x), Florida Statutes; imposing a $15,000 fine; reprimanding Dr. Rubinstein; prohibiting Dr. Rubinstein from initiating contact with patients or their families for the purpose of persuading them to agree to his treatment recommendations; and placing Dr. Rubinstein on probation for one year. On June 8, 2005, a Determination and Order was entered by the State of New York, Department of Health, State Board for Professional Medical Conduct, BPMC No. 05-115, revoking Dr. Rubinstein's license to practice medicine in New York, based on the disciplinary actions by the Board in the Final Order in Case DOH-04-0020-S-MQ. Facts Relating to DOAH Case No. 09-5267PL At all times material to this Administrative Complaint, Dr. Rubinstein did not hold hospital staff privileges for any hospital in the Sarasota, Florida, area. On January 11, 2005, J.D. presented to Dr. Rubinstein's office, seeking the following medical procedures: a breast lift or augmentation; possible liposuction on her hips; and a tummy tuck. J.D. completed a form during the office visit. Dr. Rubinstein recommended that J.D. have a breast augmentation; liposuction of hips, outer and inner thighs, and knees; and an abdominoplasty (tummy tuck). During the January 11, 2005, visit, Dr. Rubinstein told J.D. that he could help her with the dark circles under her eyes with some allergy testing. J.D. had not gone to Dr. Rubinstein for diagnosis, help, or treatment for any other conditions other than her request for cosmetic surgery. On January 11, 2005, J.D. was provided with a cost estimate for the surgical procedures of $29,550. These costs included a tummy tuck at $8,900; liposuction of the abdomen at $3,800; liposuction of the hips at $2,800; liposuction of the waist at $2,400; liposuction of the lateral thighs at $3,400; liposuction of the medial thighs at $1,800; liposuction of the knees at $800; operating room for $300 per hour for a total of $2,700; anesthesia at $300 per hour for a total of $2,700; and lab work for $250. The cost estimate did not include the breast augmentation. The surgical cost estimate stated: "It is estimated that your operating and recovery time will be 9 hours." J.D. took the cost estimate and discussed them with her husband, who felt that the costs were too much. J.D. called Dr. Rubinstein's office and advised that the cost was too high, and she could not have the surgeries for that price. Dr. Rubinstein revised his surgical cost estimate as follows: abdominoplasty $8,900; breast augmentation $4,200; implants $1,400; liposuction of the abdomen $0; liposuction of the hips $2,800; liposuction of the waist $0; liposuction of the lateral thighs $3,400; liposuction of the medial thighs $0; operating room at $300 per hour for a total of $2,700; anesthesia at $300 per hour for a total of $2,700; and pre-op lab work $250. There was no mention of liposuction of the knees in the revised cost estimate. The revised cost estimate stated: "It is estimated that your operating and recovery time will be 9 hours." The revised cost estimate was signed by J.D. on January 14, 2005. Both the original and revised cost estimates contained the following: "The Anesthesia and operating room charges are based on operating and recovery time. Consequently, if a surgical procedure turns out to be more or less lengthy than was expected, both fees will be correspondingly increased or decreased." J.D. went to Dr. Rubinstein's office on January 14, 2005, for a pre-operative visit. A history was taken, and a physical examination was done. Frank Steig, M.D. (Dr. Steig), who is board certified in otolaryngology, head and neck surgery, and plastic and reconstructive surgery, testified as an expert on behalf of the Department. He was of the opinion that the history and physical met the basic criteria. His opinion was based on a review of the medical records. Some of the forms used by Dr. Rubinstein in recording the information concerning J.D. were forms that are more suitable for an otolaryngology physician's use. However, no evidence was presented that the information listed on the forms did not meet the basic criteria for medical records or that the use of a certain form fell below the standard of care. Although J.D. was seeing Dr. Rubinstein for cosmetic surgery, she was asked to fill out a questionnaire concerning allergies. On or about January 14, 2005, Dr. Rubinstein gave Patient, J.D., a cost estimate for allergy testing totaling $3,565.00. On or about January 14, 2005, Dr. Rubinstein directed J.D. to go to Lab Corp for pre-operative testing, which included a CBC with Differential/Platelet, Complete Metabolic Panel, Urinalysis, Prothrombin Time, and Partial Thromboplastin Time. On or about January 19, 2005, J.D. presented to Dr. Rubinstein for the decided cosmetic procedures. Based on Dr. Rubinstein's operative report, he performed the following procedures on J.D. on January 19, 2005: abdominoplasty; liposuction of lower lateral abdomen, hips, waist, lateral thighs, medial thighs, and knees; and augmentation of breasts. Based on the surgical and anesthesia notes, the anesthesia began at 9:15 a.m. and ended at 11:55 p.m. There was some difficulty in finding a vein on J.D. that would be suitable to deliver the anesthesia. Eventually the anesthesia was administered through the jugular vein. Surgery was begun at 11:45 a.m. and was completed at 11:20 p.m. The breast augmentation took three hours and 35 minutes. The liposuction took one hour and 55 minutes. The abdominoplasty took six hours and five minutes. At the final hearing, Dr. Rubinstein testified that he would have predicted that the breast augmentation would have taken approximately two to two-and-a-half hours. He would have estimated that the liposuction would have taken one hour and 55 minutes. He would have estimated that the abdominoplasty would have taken three to four hours. Given these estimates, the planned surgery time at a maximum would have been eight hours and 25 minutes. Dr. Rubinstein's testimony contradicts his estimate of the surgical time as reflected on the surgical cost estimates, which were done prior to the surgery. The first cost estimate did not include the breast augmentation; therefore, the planned surgery for liposuction and the abdominoplasty was eight hours as reflected on the cost estimate. In the revised cost estimate, he added the breast augmentation, which he estimated to be between two and two-and-one-half hours. Thus, the planned time for the three surgical procedures would have been between ten and ten-and-one-half hours. No explanation was given by Dr. Rubinstein why there was no adjustment between the planned time for surgery as reflected in the cost estimates. On or about January 19, 2005, J.D. was taken to the recovery room at 11:55 p.m. and released to return home at 1:00 a.m. on January 20, 2005. Based on the anesthesiologist's assessment, J.D. met the discharge criteria of Dr. Rubinstein's surgical facility, which was accredited as a Level III surgical facility. J.D.'s husband, Mr. J.D., was called to Dr. Rubinstein's office to take J.D. home. He testified that after he arrived at the facility, he was told that there would be an additional fee of $4,900; however, he stated that the discharge of J.D. was not conditioned on the payment of the additional fee. The evidence is conflicting concerning when Mr. J.D. actually paid the additional $4,900 by credit card. Mr. J.D. testified that he paid by credit at the time of J.D.'s discharge on January 20, 2005. The computer credit card receipt, which was signed by Mr. J.D., shows that the payment by credit card was made at 1:01 p.m. on January 20, 2005. The evidence shows that the credit card payment was made in the afternoon of January 20, 2005. Dr. Rubinstein's operative report did not include the amount of tissue that was removed during the abdominoplasty or the tightening of J.D.'s abdominal wall. Dr. Steig, the Department's expert, did not testify that the standard of care required that such information be included in the operative report. He said that generally such information is included. Douglas Dedo, M.D. (Dr. Dedo), expert witness for Dr. Rubinstein, opined that the standard of care did not require Dr. Rubinstein to document the amount of tissue removed during the abdominoplasty or to document the tightening of the abdominal wall. Dr. Dedo's testimony is credited. Dr. Rubinstein belongs to the International Trade Exchange (ITEX), which is a corporation that serves as a network for businesses to do business with each other using an alternative currency system called trade dollars. In other words, businesses can barter with one another. Dr. Rubinstein suggested to J.D. that she might want to become a member of ITEX, and it could be a way of paying for procedures. J.D. and her husband own a tour guide service. One of Dr. Rubinstein's employees, Judy Trapani (Ms. Trapani), was interested in bartering a trip to Italy for procedures performed by Dr. Rubinstein. Based on the testimony of Mr. J.D., it appears that conversations concerning bartering a trip to Italy for surgical procedures occurred between Ms. Trapani and Mr. J.D. The evidence is not clear and convincing that Dr. Rubinstein was trying to barter the surgical procedures for a trip for Ms. Trapani. Facts Relating to DOAH Case No. 09-5269PL On March 22, 2005, B.L. first presented to Dr. Rubinstein, accompanied by her mother, C.L., for complaints of severe acne. C.L. filled out a general patient questionnaire and was also asked to fill out a form concerning allergies. It is not clear why a form relating to allergies would need to be completed prior to the initial examination when B.L. was being seen for severe acne. On the general questionnaire, C.L. indicated that B.L. had had asthma or other respiratory problems, chronic bronchitis, and ear infections. The allergy questionnaire was to determine the cause of the patient's allergy symptoms. However, B.L. was not seeing Dr. Rubinstein for allergy symptoms, and C.L., understandably, thought that the allergy questionnaire related to past symptoms. On the allergy questionnaire, C.L. indicated that B.L. had had trouble with her skin; hives; trouble with ears popping and itching, hearing loss; frequent sore throats with drainage; itching eyes; thick/colored discharge from her nose; sniffles, and sneezing. Other than trouble with her skin, B.L. did not have any of these symptoms when she presented to Dr. Rubinstein. On examination, Dr. Rubinstein noted that B.L.'s turbinates were engorged and pale and that she had hypoplastic lymphoid tissue. Dr. Rubinstein diagnosed B.L. with cystic acne. Cystic acne occurs when an obstruction of the hair follicle inflames the sebaceous gland and the inflammation rises to the surface. Allergies do not cause cystic acne. However, Dr. Rubinstein told C.L. and B.L. that food allergies could affect the inflammatory component of B.L.'s cystic acne. On one of the questionnaires, C.L. had indicated that B.L. had problems with sugars and carbohydrates. From this information, Dr. Rubinstein deduced that B.L. must have a problem with yeast and put her on a yeast-free diet. It is not understood why B.L. was put on a diet eliminating yeast, since sugar and carbohydrates also occur in foods other than foods containing yeast. Dr. Rubinstein put B.L. on a yeast-free diet before any testing was done to determine whether she had an allergy to yeast. Dr. Rubinstein also recommended blue-light therapy for the inflammation. He recommended allergy testing and the Obagi Nu-Derm System (Obagi) products. The Obagi program consists of topical products that are applied to the problem area. A prescription is required for the Obagi products. He prescribed an antibiotic, Minocycline. He also prescribed Nystatin for B.L. During the initial office visit on or about March 22, 2005, Dr. Rubinstein administered 1000mg of Erythromycin to B.L. by mouth prior to performing a deep pore facial cleansing on her. B.L. was also given a facial mask. B.L. suffered severe stomach pains and diarrhea from the Erythromycin. C.L. called Dr. Rubinstein and told him about the stomach problems, and he told C.L. that was a normal reaction. On or about March 28, 2005, B.L. and C.L. presented to Dr. Rubinstein for a follow-up appointment. Dr. Rubinstein documented in the medical records that B.L.'s complexion appeared improved. He continued B.L. on Nystatin and Minocycline. Dr. Rubinstein continued to recommend the allergy tests and the Obagi program. C.L. purchased the Obagi program products for $1,200. B.L. and her mother returned to Dr. Rubinstein's office on April 4, 2005, for a follow-up visit. Dr. Rubinstein continued the Minocycline and reviewed the progress in the Obagi program. C.L. authorized the allergy tests. The charge for the allergy tests was $2,821. One of the allergy tests which Dr. Rubinstein had performed was IgG testing. Such testing is not done by mainstream allergists, and it is below the standard of care to use such testing. On the evening of April 11, 2005, B.L. ate a piece of cake at her grandmother's birthday party. On the morning of April 12, 2005, B.L. went to school at 7:30 a.m., and, by 8:20 a.m., she was experiencing hives, swollen joints, problems catching her breath, and problems moving her fingers, bending her knees, and bending her feet. B.L.'s joints were visibly swollen. C.L. took B.L. to see Dr. Rubinstein on April 12, 2005. Dr. Rubinstein noted in his records on April 12, 2005, that B.L. had hives, but he did not mention that B.L.'s joints were swollen. He opined that the hives were caused by eating cake. B.L. had eaten cake at times before the ingestion of cake on April 11, 2005, and had not experienced the symptoms that she had on April 12, 2005. B.L. has eaten cake since the ingestion of the cake on April 11, 2005, and has not experienced the symptoms that she had on April 12, 2005. Dr. Rubinstein had the results of the allergy tests to foods on April 12, 2005. None of the tests showed that B.L. was allergic to baker's yeast or gluten. One of the tests showed that B.L. might be allergic to candida albicans, which is a yeast that is usually found in babies with thrush and people whose immunity system is compromised. An allergy to candida albicans is not the same as an allergy to baker's yeast. However, Dr. Rubinstein continued the yeast-free diet. During the office visit on April 12, 2005, Dr. Rubinstein administered a 6mg dose of Decadron to B.L. for an acute allergic reaction. Decadron is a steroid used to treat conditions such as arthritis, blood/hormone/immune system disorders, allergic reactions, certain skin and eye conditions, breathing problems, certain bowel disorders, and certain cancers. B.L. had an adverse reaction to the Decadron, resulting in vomiting, stomach pains, and diarrhea. Dr. Rubinstein placed B.L. on another round of Minocycline. He suggested to C.L. that he might want to have B.L. switch to tetracycline because it may be more effective and cheaper than the Minocycline. C.L. told Dr. Rubinstein the price that she was paying for the Minocycline, and he told C.L. that if she could get the Minocycline for the price she stated that B.L. could stay on the Minocycline. During the office visit on April 12, 2005, Dr. Rubinstein lanced and drained four extremely inflamed cysts located on B.L.'s forehead and cheek. On April 12, 2005, Dr. Rubinstein suggested that B.L. go on a Rotation Elimination Diet to eliminate positive allergic foods. B.L. was to continue abstaining from eating yeast. The cost of the diet was $100. On April 12, 2005, after the office visit with Dr. Rubinstein, C.L. called Dr. Rubinstein and advised that B.L. was still not improving. Dr. Rubinstein made a note of C.L.'s telephone call. He continued to opine that the rash was caused by the ingestion of cake. He noted that the allergic reaction may be caused by the medication, but he still did not discontinue the medication. Although, Dr. Rubinstein had just examined B.L. that day, he requested that B.L. be seen again for re-evaluation. On or about April 14, 2005, C.L. went to see Dr. Rubinstein without B.L. to obtain the results of B.L.'s allergy tests. C.L. indicated that B.L.'s hives were worse. Dr. Rubinstein suggested that B.L. present to him again, after having seen B.L. two days prior, and that she may need antihistamines and medrol dose packs. He did not tell C.L. to discontinue the Minocycline. C.L. no longer trusted Dr. Rubinstein. On April 15, 2005, B.L.'s symptoms had not improved, and C.L. took B.L. to see B.L.'s pediatrician. The pediatrician referred B.L., to Hugh H. Windom, M.D. (Dr. Windom), a board-certified allergist. Dr. Windom saw B.L. on April 15, 2005, for hives, joint pain, and some swelling of her hands and lower arms. On examination, Dr. Windom found that B.L. had cystic acne, raised blanching, a red rash on her lower arm, mild nasal mucosal edema, and swelling in the joints on both hands and that B.L. was dermatographic. B.L. told Dr. Windom that she had been prescribed Minocycline by Dr. Rubinstein and had been taking it since sometime in March 2005. B.L. advised Dr. Windom that she did not take the Minocycline on April 14, 2005, and that her symptoms had improved some. Dr. Windom suspected that the hives, joint pain, and swelling were allergic reactions to drugs. He discontinued B.L.'s use of Minocycline and Nystatin. Within 24 hours after her visit with Dr. Windom, B.L.'s symptoms were gone. Dr. Windom referred B.L. to a dermatologist for her acne. Michael Pacin, M.D. (Dr. Pacin), is a board-certified allergist and testified as an expert for the Department. Dr. Pacin was of the opinion that there is no connection between allergies and acne. Acne is not an allergy symptom. He is also of the opinion that the prescription of a yeast-free diet when the physician does not know if the patient has an allergy to yeast is below the standard of care. Dr. Pacin's testimony is credited. C.L. paid Dr. Rubinstein $100 for the Rotation Diet, and $2,821 for allergy testing. Facts Relating to DOAH Case No. 09-5270PL On July 17, 2006, R.A. presented to Dr. Rubinstein with complaints that he had a rash on his face and that it was itching. R.A. thought that he might have an allergy, which is why he sought out an allergy specialist. R.A. had not gone to see Dr. Rubinstein for any nasal problems. R.A. felt that, when he mentioned that he thought he might have allergies, "it just locked in with [Dr. Rubinstein] that he had nasal problems." R.A. filled out a questionnaire on the first visit concerning his current problem. He advised Dr. Rubinstein that he had prostate cancer in 1999, and his prostate had been removed. He also stated that he had had nasal problems and had gone to the Silverstein Institute1/ in October 2005. In December 2005, he had surgery at the Silverstein Institute. Part of the surgery had been for the removal of polyps. R.A. had been going to the Silverstein Institute for follow-up visits and felt that his nasal and sinus issues were clearing up. Dr. Rubinstein recommended that R.A. have a CT scan done. Dr. Rubinstein asked R.A. to get his medical records from the Silverstein Institute. R.A. requested his medical records, including a CT scan of his sinuses, from the Silverstein Institute, and those records were provided to Dr. Rubinstein. On July 18, 2006, a CT scan was performed on R.A. The physician who interpreted the CT scan had the following impression of the CT scan results: Surgical alteration includes bilateral superior and middle turbinate removal. Opacificaton of the anterior ethmoidal air cells present bilaterally extends into the frontal sinuses where there is mild mucoperiosteal thickening. The right sphenoid sinus is completely opacified. There is mention in the history of a possible nasal bone fracture however, fractures are not identified. The CT Scan did not show a deviated septum to the extent that surgery would be needed. The physician who prepared the report on the CT stated: "Nasal septum is not significantly deviated." The medical records from the Silverstein Institute showed that in 2005 that R.A.'s septum was intact in midline. The CT scan report stated: "Mucoperiosteal thickening exists in the left maxillary sinus in a relatively mild fashion with probable polyp formation of the anterior ethmoidal air cells." The CT scan did not conclusively state that polyps were present. Dr. Steig, the Department's expert, reviewed the CT scan image and opined that the CT scan did not show nasal polyps, but instead showed polypoid changes which may or may not have been associated with the presence of polyps. Polypoid changes can be caused by mucosal irritation or suctioning. The polypoid changes in the CT scan were on the mucosa on the lateral wall. Dr. Steig's testimony is credited. On or about July 19, 2006, Dr. Rubinstein called R.A. to discuss the CT scan results and told R.A. that the CT scan results were abnormal. Dr. Rubinstein diagnosed R.A. with chronic allergic rhinitis, chronic sinusitis, nasal septal deviation with moderate obstruction, recurrence of nasal polyps, loud snoring, and dry mouth secondary to mouth breathing. Dr. Rubinstein felt the redness on R.A.'s face was a form of rosacea. Dr. Rubinstein's treatment plan consisted of reviewing the CT results, providing R.A. with supplements, in vitro allergy testing, and providing allergy medication if needed. On July 24, 2006, R.A. underwent in vitro allergy testing, using IgE blood testing for inhalants and IgG blood testing for food. On or about July 27, 2006, R.A. presented to Dr. Rubinstein for a follow-up appointment, complaining of a number of symptoms bothering him since his previous appointment the week before. R.A. complained of symptoms on his skin, a stuffy nose, sore throat, body ache, and watery eyes. On July 27, 2006, Dr. Rubinstein performed an endoscopy on R.A. Dr. Rubinstein told R.A. that the polyps that had been removed at the Silverstein Institute had grown back. He further told R.A. that his septum was crooked and that the physician at the Silverstein Institute had not done a good job and needed to be reported. Dr. Rubinstein advised R.A. of the results of the allergy testing. The allergy test, which Dr. Rubinstein requested for food allergies, showed that R.A. was allergic to all foods tested except for sunflower seeds. The food allergies were tested by Commonwealth Medical Labs in Warrenton, Virginia. The test used was called an IgG test. The laboratory report stated: "This test is For Investigational Use Only. Its performance characteristics have not been cleared or approved by the U.S. Food and Drug Administration." Dr. Rubinstein told R.A. that the allergies could be treated with homeopathic vitamins, supplements, acupuncture, and a Rotation Elimination Diet. Dr. Rubinstein sold R.A. a lot of homeopathic vitamins and supplements from Dr. Rubinstein's office. Dr. Rubinstein also recommended that R.A. get some treatments from an acupuncturist, who worked out of Dr. Rubinstein's office on a case-by-case basis. Some of the treatments included injection of some homeopathic medications. The acupuncturist was supposed to help with the rash on R.A.'s face and the allergies. On July 27, 2006, Dr. Rubinstein ordered a sleep apnea test for R.A. The method of testing was a home test, which R.A. rented from Dr. Rubinstein. R.A. often woke during the night to urinate since he had his prostate removed. The results of the test showed that R.A. had significant snoring and mild obstructive sleep apnea. Dr. Rubinstein told R.A. that he suffered from sleep apnea that was very serious and that R.A. had almost died three to four times during the test. Dr. Rubinstein told R.A. that he needed surgery immediately to treat the sleep apnea. The sleep apnea test did not show severe sleep apnea. The sleep could and should have been treated using positive pressure ventilation via a mask. Dr. Rubinstein's testimony that he suggested the use of a mask and R.A. rejected the idea is not credited. It is clear from R.A.'s testimony that he was led to believe by Dr. Rubinstein that his sleep apnea was life- threatening and that he needed immediate surgery. On or about July 29, 2006, R.A. returned to Dr. Rubinstein's office. Dr. Rubinstein discussed the Rotation Elimination Diet with R.A. On or about August 1, 2006, R.A. presented to Dr. Rubinstein for a follow-up appointment with complaints of a stuffy nose and dry mouth. Dr. Rubinstein noted that a culture from R.A. was positive for staph aureus and prescribed the antibiotics, Septra and Gentamicin nasal spray. On or about August 4, 2006, R.A. presented to Dr. Rubinstein with complaints of inability to breathe through his nose at night. Dr. Rubinstein reviewed the progress of the Rotation Elimination Diet with R.A. On August 8, 2006, R.A. presented to Dr. Rubinstein complaining of bilateral congestion. Dr. Rubinstein prescribed Allegra-D, an antihistamine decongestant, and Nasonex, a cortical steroid. Dr. Rubinstein presented R.A. with a surgical plan that included: endoscopic sphenoidoscopy and debridement; septoplasty; radiofrequency inferior turbinates; radiofrequency soft palate; radiofrequency base of tongue; and bilateral intranasal endoscopic ethmoidectomy revision. Dr. Steig, the Department's expert, is of the opinion that the recommended surgeries were unnecessary and that Dr. Rubinstein should have tried medical treatment before resorting to surgery. Dr. Steig's opinion is credited. On or about August 11, 2006, R.A. presented to Dr. Rubinstein for a pre-operative appointment to take a history and physical examination. Dr. Rubinstein discussed EKG results with R.A., stating that the results were borderline and that Dr. Rubinstein would ask another physician to review the results. On August 14, 2006, R.A. called Dr. Rubinstein's office and left a message that he was cancelling the surgery. R.A. went to see Howard B. Fuchs, M.D. (Dr. Fuchs), on August 14, 2006, to get a second opinion. Dr. Fuchs is board- certified in pediatrics and allergies. On August 14, 2006, R.A. presented to Dr. Fuchs with chronic rhinitis, which is a chronic inflammation of the nasal tissues. He wanted to find out whether he had allergies. R.A. told Dr. Fuchs that he had been tested for allergies when he was Dr. Rubinstein's patient. R.A. did not bring any of the allergy test results with him to the office visit. Dr. Fuchs told R.A. to stop taking antihistamines and scheduled R.A. for skin testing ten days later. On August 24, 2006, Dr. Fuchs performed allergy skin tests, and the results were negative. R.A. did not have any allergies. Dr. Fuchs changed the Allegra-D to doses twice a day and continued R.A. on Nasonex. The Allegra-D was for congestion and to shrink the tissues in R.A.'s nose. Dr. Fuchs diagnosed R.A. with vasomotor rhinitis, which is non-allergic. Vasomotor rhinitis is triggered by things like smoke and chemical fumes. Dr. Fuchs saw R.A. again on September 14, 2006. R.A. said that he was better, but the medication made him jittery. Dr. Fuchs changed the medication. The last time that Dr. Fuchs saw R.A. was on October 13, 2006, and R.A. said that he was doing well. On August 16, 2006, Jack J. Wazen, M.D. (Dr. Wazen), who is board certified in otolaryngology, head and neck surgery, saw R.A. for the first time. Dr. Wazen is employed at the Silverstein Institute, but had not treated R.A. when R.A. had been a patient at Silverstein Institute before August 16, 2006. R.A. was seeking a second opinion concerning Dr. Rubinstein's plan for nasal surgery. Dr. Wazen did a physical examination of R.A., including an endoscopic nasal examination, which revealed the septum to be in the midline with no obstructive deviation. There were no polyps, and the sites on which R.A. had had surgery looked well-healed. Dr. Wazen also reviewed a CT scan, which R.A. had provided. Based on his examination and evaluation, Dr. Wazen told R.A. that he did not have polyps and that there was no clinical benefit to be derived from surgery. R.A. presented with complaints of nasal congestion, stuffy nose, and hives. Dr. Wazen diagnosed R.A. with allergic rhinitis. Dr. Steig was of the opinion that surgery should not have been recommended for the sleep apnea or the chronic allergic rhinitis or chronic sinusitis without first trying other medical treatments such as a mask for the sleep apnea. He opined that the rhinitis and sinusitis could have been treated by the avoidance of a known cause of the rhinitis or sinusitis and continuation of nasal steroids and antihistamines. Dr. Steig's testimony is credited. Dr. Steig was of the opinion that the recommended surgery was not justified by the medical records. There were no polyps present and the septum was not deviated to the extent that surgery was necessary. The sleep apnea was moderate and did not warrant surgical intervention. Dr. Steig's testimony is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered as follows: DOAH Case No. 09-5267PL Finding that Dr. Rubinstein violated section 458.331(1)(t), Florida Statutes (2004); Finding that Dr. Rubinstein did not violate sections 458.331(1)(m) and 458.331(1)(n); Revoking Dr. Rubinstein's license; and Imposing a $10,000 administrative fine; DOAH Case No. 09-5269PL Finding that Dr. Rubinstein violated sections 458.331(1)(m), 458.331(1)(n), and 458.331(1)(t); Requiring Dr. Rubinstein to pay C.L. $2,921 for the allergy testing and the Rotation Diet; Revoking Dr. Rubinstein's license; and e. Imposing an administrative fine of $10,000. DOAH Case No. 09-5270PL Finding that Dr. Rubinstein violated section 458.331(1)(t), Florida Statutes (2006); Revoking Dr. Rubinstein's license; and Imposing a $10,000 administrative fine. DONE AND ENTERED this 1st day of February, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 1st day of February, 2011.
The Issue The issue in this case is whether Petitioner, Frank W. Fender, should have received a passing grade on the March 1997 Clinical Chemistry Technologist examination.
Findings Of Fact Petitioner, Frank W. Fender, took the Clinical Chemistry Technologist examination in March 1997 (hereinafter referred to as the "Examination"). The Examination consists of fifty multiple choice questions. The instructions for the Examination specifically informed persons taking the examination that they were to "[a]lways choose the BEST answer." It was determined that Mr. Fender had answered twenty- seven of the Examination questions correctly. Mr. Fender was, therefore, awarded a score of 349. A score of 350 or more was required for a passing score. If Mr. Fender were determined to have answered one more question correctly, he would receive a passing score. Mr. Fender was informed that he had not passed the Examination. By letter dated July 25, 1997, Mr. Fender requested a formal administrative hearing to contest his failing score. In particular, Mr. Fender challenged the determination that he did not answer questions 3, 9, 16, and 21 correctly. Question 3: Question 3 involved obtaining "true serum triglyceride results." Mr. Fender selected answer "D" which was: "measure a blank in which the dye-coupling is omitted." The answer considered correct was "B." The evidence failed to prove that answer "D" was the best answer. While the use of blanks in triglyceride methodologies is correct, "dye-coupling" is not. Therefore, answer "D" is not a correct response. The evidence failed to prove that answer "D" was the best answer for question 3. Question 9: Question 9 asks which enzyme listed in the answers is found to be elevated in the majority of alcoholics. Mr. Fender selected "B," ALT, as the correct response. The evidence failed to prove that answer "B" was the best answer. While ALT may be raised in an alcoholic, it also may not be. GGT is the most sensitive indicator of alcoholism. Even if ALT is normal, GGT will be raised in an alcoholic. The best answer to question 9 was, therefore, "C," GGT. The evidence failed to prove that answer "B" was the best answer to question 9. Question 16: Question 16 asks why one must wait approximately 8 hours to draw a blood sample after administering an oral dose of digoxin. Mr. Fender selected "D" as the correct response. This answer indicates that the reason one must wait is because "all" of the digoxin "will be in the cellular fraction." Mr. Fender's response was not the best response because of the use of the work "all" in the answer he selected. The most digoxin that could be in the cellular fraction is approximately twenty-five percent, because approximately seventy-five percent is excreted through the kidneys. The evidence failed to prove that answer "D" was the best answer to question 16. Question 21: Question 21 asks the best way to test for suspected genetic abnormalities in an unborn fetus. Mr. Fender selected answer "B," "performing L/S ratios" as the best answer. While the evidence proved that L/S ratios will measure immature fetal lungs, this condition results in respiratory distress syndrome. Respiratory distress syndrome is an "acquired" disorder and not a "genetic" abnormality. While an L/S ratio can be used to test for acquired disorders, a "chromosome analysis," answer "C," is used to test for genetic abnormalities. The evidence failed to prove that answer "B" was the best answer to question 21. The evidence failed to prove that Mr. Fender should have received a score higher than 349 on the Examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Health dismissing Frank W. Fender's challenge to the grade awarded to him on the March 1997 Clinical Chemistry Technologist examination. DONE AND ORDERED this * day of March, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this * day of March, 1998. * Mailed 3/2/98 undated. -ac COPIES FURNISHED: Frank W. Fender 7603 North Laura Street Jacksonville, Florida 32208 Anne Marie Williamson, Esquire Department of Health Office of the General Counsel 1317 Winewood Boulevard Building 6, Room 106 Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6, Room 306 Tallahassee, Florida 32399-0700 Pete Peterson Department of Health 1317 Winewood Boulevard Building 6, Room 102-E Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700
The Issue The issue for consideration herein is whether Respondent's license as a physician in Florida should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Rolando C. Jamilla, was licensed as a physician in Florida. The Board of Medicine is the state agency charged with the regulation of the practice of medicine in this state. Respondent's office for the practice of general medicine in located in Ft. Myers, Florida and Respondent is also the medical director at the Lee Convalescent Center, a nursing home for the elderly with between 140 and 160 beds. Patient A. J. entered the emergency room at Lee Memorial Hospital in Ft. Myers on the afternoon of August 13, 1983, complaining of shortness of breath. A 55 year old male, he previously had been diagnosed as having chronic lung disease, and was a heavy smoker. The physician on duty in the emergency room, Dr. Gavin, treated A.J. with intravenous aminophylline, a bronchodilator, and ordered a theophylline level drawn. Theophylline is a medication the level of which can be measured in the patient's serum. It is a drug which falls within the purview of the proscription in Section 458.331(1). The theophylline test ordered by Dr. Gavin indicated that A.J. had a theophylline level of 11.0 mcg/ml. A normal therapeutic range for theophylline is 10 to 20 mcg/ml. Excessive levels of the substance can result in theophylline toxicity manifested by rapid cardiac rhythm disturbances and possible cardiac arrest. It can also cause neurotoxicity and neurologic seizures. Respondent first saw A.J. at about midnight after his admission and confirmed the orders previously given by Dr. Gavin, continuing the aminophylline. When he saw A.J. the following day, Respondent continued the aminophylline regimen for another day at which time A.J.'s breathing was much more regular and easy and the aminophylline treatment was discontinued. Respondent did not order an aminophylline level test at that time because, in his opinion, since the therapy was being discontinued, the test would not have been of value. A.J.'s condition continued to improve after Respondent discontinued the aminophylline therapy on August 15, 1983 and on the morning of August 18, 1983, Respondent indicated his intent to discharge the patient the following day. However, during that evening, prior to discharge, A.J.'s condition worsened and the proposed discharge for the following day was cancelled by Dr. Bercau, the on-call physician. At this time, A.J. was again suffering severe shortness of breath, and aminophylline, along with other broncodilators, was again ordered by Dr. Bercau. Since, on August 19, 1983, A.J. was still experiencing breathing difficulties, Respondent continued the aminophylline therapy and ordered a series of tests be run on the patient which included an electrocardiogram, a chest x-ray, and a CPK (measure of blood enzyme). Respondent also requested that A.J. be seen in consultation by Dr. Charles, a cardiac specialist. On August 20, 1983, Dr. Bercau, believing that the patient was experiencing cardiac problems, had him transferred to the telemetry unit for continued and detailed monitoring of his cardiac situation and ordered a theophylline level test run on him. This showed that the patient's theophylline level was 36.8 mgc/ml, considered to be in the toxic range. Both Respondent and his expert agreed that at this point, A.J. was experiencing theophylline toxicity. As a result of the chemical tests, Dr. Bercau ordered the aminophylline therapy be discontinued as of the evening of August 20, 1983 and directed another theophylline level test be run. The result of this test, done on the morning of August 21, 1983, indicated A.J.'s theophylline level had reduced to 27.6 mcg/ml, still considered to be in the toxic range, and the doctor's notes for this day indicate that though the theophylline level was high, it was much better than it had been. Notwithstanding this entry in the doctor's notes, on August 22, 1983, Respondent again ordered the resumption of aminophylline therapy. The records do not reflect any indication that Respondent attempted to determine his patient's theophylline level before resuming this therapy. On August 24, 1983, A.J. began to have premature ventricular contractions, a cardiac rhythm disturbance. When Dr. Charles saw the patient that same day, he indicated that these arrhythmias were "most likely" due to the effect of the aminophylline administered. Dr. Charles ordered this drug be discontinued at that time. On August 30, 1983, A.J. was examined by Dr. Dosani, a pulmonary specialist, who ordered the administration of steroids in an effort to counteract the patient's bronchospasms. This apparently was successful since the patient's condition improved and he was discharged from the hospital on September 3, 1983. Aminophylline is a drug which can produce cardiac arrythmia and both cardiac and neurological toxicity can be an outgrowth of theophylline toxicity. Respondent admitted at the hearing he was aware that aminophylline can produce cardiac arrythmia. Respondent's expert, Dr. Chadha, a specialist in lung diseases, utilizes aminophylline on a daily basis since it is widely used in his specialty. Dr. Chadha could find no reason for Respondent to order a theophylline level test when there were no indications of problems manifested to Respondent and he had discontinued the administration of the drug. The patient presented no evidence of toxicity and the two other physicians who were treating the patient at the time both prescribed administration of aminophylline as well as other medication at the time Respondent did. Petitioner's expert, Dr. Cohen, opined that the prescribing of aminophylline simultaneously with oral choledyl is inappropriate and excessive and life-threatening to the patient. According to Dr. Chadha, a review of theophylline level test results at Lee Memorial Hospital for June, 1989, revealed that 31% showed a level in excess of the maximum therapeutic level of 20 mgc/ml. In Dr. Chadha's opinion,, levels of this drug within the body are extremely hard to control. Whereas Dr. Cohen was of the opinion that the Respondent's treatment of his patient, A.J., in these particulars, constituted a failure to practice medicine with the appropriate level of care, skill and treatment recognized as reasonably prudent by similar physicians under similar circumstances, Dr. Ratnesar, an internist testifying as an expert for the Respondent, was of the opinion after reading the medical charts involved, that the care and treatment given in this case by Respondent was well within medical standards. This opinion was confirmed by Dr. Charles, the cardiologist mentioned previously. Respondent admitted another patient, J.H., to the hospital on August 27, 1983. The admitting documents indicated the patient was being admitted for the treatment of pulmonary distress when in reality as admitted by Respondent at hearing, the hospital admission was primarily a "social admission" necessary as a prerequisite to the placement of the patient in a nursing home. The patient, J.H., was not in any actual pulmonary distress either at the time of admission nor at any time during his stay, and Respondent admits this. Nonetheless, Respondent prescribed Theo-Dur, a theophylline bronchodilator, and Halcion, a tranquilizer, for the patient. It is well accepted in medical circles that Halcion should be used with caution when a patient is known to have a respiratory condition because the medication effects the central nervous system which, when depressed, can have an adverse effect on the respiratory function. Dr. Cohen is of the opinion that the prescription of Theo-Dur and Halcion, conjunctively, to the patient was inappropriate and the medical records on this patient fail to indicate a medical basis for it. The records make no reference to diagnostic tests ordered by Respondent for the patient and in Cohen's opinion, they are inadequate and do not justify the treatment provided. Respondent rebuts this contention urging that the use of the two drugs together is neither contraindicated nor harmful. This position is supported by information from the manufacturer of Halcion that there is no known contraindication for its use with Theo-Dur. In fact, none of the witnesses, including Dr. Cohen, could provide any firm evidence of contraindication in the use of the two drugs. Further, the four physicians who testified on behalf of Respondent were of the opinion that his records regarding this patient were adequate. Patient C.T. was a 79 year old woman admitted to the hospital on April 13, 1983, suffering from vaginal bleeding. She was admitted from a nursing home where Respondent had been her treating physician. She was a patient in the nursing home as a result of a stroke she sustained in 1976. Several days prior to her admission to the hospital, Respondent had attempted a pelvic and a bimanual examination of the patient at the nursing home to attempt to confirm the area from which the patient was bleeding. The bimanual examination was unsatisfactory due to her obesity and, because she had a protruding hernia in the abdominal wall. Upon admission, Respondent did not perform any additional specified area examination of the patient either with a speculum or bimanually because of her advanced age and the fact that her family preferred no further discomfort be imposed on her. As a result, Respondent made a presumptive diagnosis that the patient was suffering from cancer of the uterus/cervix, but this was not confirmed by actual examination. The patient was treated medically to stop the bleeding and she was returned to the nursing home with no further complications. Though the examination at the nursing home by the Respondent was characterized as satisfactory and though no positive diagnosis could be confirmed of the cause of the bleeding, Respondent failed to request a gynecological consultation for the purpose of further diagnosis. Due to the family's wishes, however and the advanced age of the patient, this may not necessarily constitute a failure to take proper care. When Dr. Cohen gave his opinion that the failure to do a bimanual and pelvic examination was improper, he was apparently unaware that Respondent had done these examinations at the nursing home three days prior to the patient's admission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Rolando C Jamilla, M.D., be placed on probation by the Board of Medicine for a period of two (2) years under such terms and conditions as are specified by the Board, and that as a part thereof, he complete no less than 40 hours of continuing medical education in subjects specified by the Board. RECOMMENDED this 18th day of September, 1989, 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 18th day of September, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-5414 The following constitutes my specific rulings pursuant to Section 120.57(2), Florida statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1. Accepted and incorporated herein. 2.-4. Accepted and incorporated herein. 5. Accepted and, as it pertains to failure to monitor theophylline levels, incorporated herein. 6.-11. Accepted and incorporated herein. 12. Accepted and incorporated herein. 13.&14. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted except for the finding that the patient's life was endangered. Rejected. 21.&22. Accepted and incorporated herein., Accepted and incorporated herein but not necessarily dispositive. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Rejected. &29. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Rejected. Accepted and incorporated herein. For the Respondent: 1.&2. Accepted and incorporated herein. 3.&4. Accepted and incorporated herein. 5. Accepted and incorporated herein. 6.&7. Accepted and incorporated herein. 8.-11. Not a Finding of Fact but a recitation of testimony. 12.-16. Restatements of the evidence. 17.&18. Accepted and incorporated herein. 19A-D. Not a Finding of Fact but a recitation of testimony. COPIES FURNISHED: Robert D. Newell, Jr., Esquire Newell & Stahl, P.A. 817 North Gadsden Street Tallahassee, Florida 32303-6313 James A. Neel, Esquire 3440 Marinatown Lane, N.W. North Fort Myers, Florida 33903 Kenneth A. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dorothy Faircloth Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
