The Issue The issue for consideration in this hearing is whether Respondent's license to practice osteopathic medicine in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations herein, the Board of Osteopathic Medicine was the state agency in Florida responsible for the licensing of osteopathic physicians and for the regulation of the practice of osteopathic medicine in this state. By stipulation, the parties agreed that Respondent was, at all times material hereto, a licensed osteopathic physician in the State of Florida. On May 1, 1990, Patient #1, (R.C.) presented to the Respondent at his office in Orlando for treatment of obesity. At that time, the Respondent, who holds himself out as a specialist in and was determined to be an expert in the field of bariatric medicine, (weight control), had the weight, blood pressure and pulse rate of the patient taken, and other measurements made. At that time, the patient was 6'2" tall and weighed 196 pounds. His blood pressure was 124 over 76, and his pulse rate was 70. He had a waist measurement of 38 1/2" and a hip measurement of 40". As a part of the case history taken of the patient, it appeared that he had no significant matters to report except for the fact that he had periodic shortness of breath and members of his family had had both high blood pressure and heart trouble. There were no other contraindications to treatment. Respondent conducted an examination of the patient and determined that the patient had had liposuction in the stomach area and breasts approximately one year previously, and that he got little exercise, yet smoked 2 1/2 packs of cigarettes per day. He was a reformed alcoholic and felt he was in good general health. Respondent's evaluation of the patient at the time was that he appeared to look well. The medical records reflect the word, "CORPUL", which is an acronym for cardiac/pulmonary, and in connection therewith, Respondent noted that the patient's condition was "excellent." As a part of his initial work up, the Respondent drew blood from the patient which was forwarded to a laboratory for analysis, and he also did a cardiogram. Though the cardiogram appeared "grossly normal" there was some minor irregularity which the Respondent felt necessitated further evaluation. Therefore, the cardiogram was sent to a cardiologist, Dr. Arnold, for evaluation. The report of the cardiologist indicated that the cardiogram was essentially normal with a "PR" interval at the upper limit of normal. Before the report was returned by the cardiologist, Respondent prescribed certain medications for this patient. Because the patient had high sodium levels in his blood, the Respondent prescribed a diuretic. He also prescribed Thyroglobulin, a specialized form of thyroid medication to aid the patient's metabolism mildly and safely. In addition, he prescribed 30 mg of Obazine per day to be taken in the morning as an appetite supressant; potassium chloride for extra potassium; and Phentermine, another appetite supressant to be taken in the afternoon. For after supper medication, Respondent prescribed a medication for digestion and to increase bile flow, and a 1/2 gram of Phenobarbitol to relax the patient in order to reduce his habit of snacking, and provided a detoxifying agent for the liver. These were the only drugs prescribed at that time. Respondent also, however, instructed the patient that he must not have any further liposuction. In the opinion of Dr. Weiss, the Board's expert in the field of bariatric medicine, the use of the secretary to transcribe the Respondent's verbal comments regarding his patients into the record is not inappropriate. However, the use of the word, "CORPUL" followed by the word, "excellent" seems to fall somewhat below standard, in his opinion. In this case, an acceptable standard would be for the physician to put into the chart exactly the details of the evaluation, and the word, "excellent" does not say much. Notwithstanding the fact that records show the patient's pulse rate and blood pressure, they did not show that the Respondent palpated the patient's chest or listened to the heartbeat. Therefore, the use of the word, "excellent" in this case is below standard. Respondent's records also include the word, "dispense", followed by several medications which Respondent prescribed for the patient. There was no indication in the record why each of these medications was prescribed. Dr. Weiss concludes this is a deficiency in that the record does not show that the Respondent actually examined the patient before medicating him, even though Respondent indicated he had done so. In fact, the only comment as to the patient's general health is made by the secretary, not by a physician or a nurse. Further, though Respondent indicated at hearing that the patient suffered from emphysema, there is no indication anywhere in the notes that that condition existed. Dr. Weiss also noted that the Respondent prescribed medication for a thyroid condition but there appears, from the medical record kept by the Respondent, no reason to treat a thyroid condition. There is no indication that the patient demonstrated any of the clinical signs of hyperthyroidism. By the same token, a prescription for Phenobarbitol, to be taken in small quantities at the hour of sleep, is well within standards if proper indications for that use are noted. Here, according to Dr. Weiss, in Respondent's records there is no indication as to why the substance was dispensed. Respondent's testimony at hearing provides justification, and there is no challenge to the actual prescription, but the medical record is insufficient in that it fails to show the reason for the dispensing of any of the specific medications prescribed. The Respondent's next contact with his patient was by telephone on May 17, 1990 when the patient indicated that the blue Phenobarbitol tablet was making him feel like he was dying. According to the records, the patient was nervous, "hyped-up" and his chest was tight. The medical note entered by the secretary indicates that she had spoken with the Respondent about the patient and the Respondent said for the patient to take one-half capsule with food. If that worked, the patient could return to a full dose. According to Dr. Weiss, this is "far, far below the standard of care", especially when the patient was, as here, showing signs of cardiac problems in the sense of shortness of breath and tightness in the chest, A prudent physician, according to Dr. Weiss, would have stopped medication entirely, had the patient come to the office, or, if an emergency problem existed, told the patient to go to the hospital by ambulance. This is the case here, especially since the cardiogram report had not been received from the cardiologist. If the Respondent felt either inadequate to interpret the cardiogram or that the cardiogram showed some irregularity, he should not have recommended drugs to the patient, as he did here, which affected the heart. In that regard, Dr. Weiss opines, it is impossible to treat all patients within a standard template or protocol, as it appears Respondent did, since all patients are individuals. On May 14, 1990, the patient again telephoned Respondent's office requesting a list of all medications he was then taking. At that point, the patient indicated he was at a cardiologist's office, (Dr. Latif), and needed to know the name of the drugs he was taking. Respondent's secretary asked the patient if this were an emergency visit, and the patient indicated it was not. Because the patient would not volunteer any information or answer directly any of the questions of the secretary, she suggested that Respondent call him right back at the cardiologist's office and the patient agreed. However, before the Respondent could call back, the patient departed Dr. Latif's office, apparently having decided he could not afford the cardiologist's fee. The patient records reflect, in Respondent's handwriting, that the patient had told him he was at the cardiologist's because the cardiogram was borderline abnormal and he had been worrying about it since it was taken. Respondent's notes on this matter reflect he assured the patient that the cardiologist's report indicated there was no problem. The patient then indicated he felt fine and had gone to Dr. Latif only for a check up. Respondent contends he discussed with the patient his exercise regimen and advised him not to get overheated while on any of the medications he was taking. The entry relating to the May 29, 1990 visit reflects that the patient had lost approximately 10 pounds and his blood pressure was down but his pulse rate was up somewhat. The note indicates that the patient "feels fine and is happy with the Obazine" which Respondent had prescribed for him. By observation, Respondent noted that the patient "looks well" and again, the notation "CORPUL excellent" in Respondent's hand, along with a change of some of the medications administered, is listed in the record with no reason being shown for either the change or the continuation. This is below standard. According to Dr. Weiss, the details rather than the conclusion should be reflected in the records. The next appointment with the patient was on June 29, 1990 when the records reflect the patient had lost weight and his blood pressure remained good, but there was no indication of what his pulse rate was. The records reflect certain changes at the restaurant where the patient was working interfered with his sleep; that he was winning at the dog track and planned to go to Las Vegas; but that he was hungry after exercising in the evening and asked for a stronger pill to take in the morning with breakfast. The patient indicated that the Esidrix 50 mg made his heart race. In response, according to the records in the Respondent's handwriting, Respondent reduced the strength of the Esidrix dose from 50 mg to 25 mg and changed the Phenobarbitol from blue to yellow. According to Dr. Weiss, the secretary's notes contain certain information but not all that is necessary. Weiss noted that the patient requested a stronger appetite supressant even though it is noted that the lighter dose made his heart race. A more prudent physician, in Dr. Weiss' opinion, practicing at the level of standard of care, would have discontinued any medication which made the patient's heart race and would have done a cardiogram or at least would have checked the patient's pulse. Here the record fails to reflect that the pulse rate was taken. If a doctor is made aware of that condition, he should look into it, and there is no indication, from the medical records, that this was done. According to Weiss, this is grossly incorrect. In fact, there is no indication that Respondent even examined the patient before making any change in his medictions, and that, in itself, would be a deviation from standard. Respondent indicates that if he made any entry on a patient's record in his own hand, it was done as a result of an examination of the patient. In this case, however, if respondent did examine the patient, he made no reference in the notes as to why he did what he did nor did he make any record of his rationale or reasoning. This is below standard. When the patient was informed that Respondent would not be able to keep the appointment scheduled for July 17, 1990, he indicated he had changed his schedule and needed a change in the times of taking and the strengths of his medications. When the patient did come in his blood pressure was taken along with his weight but there was no indication he pulse rate was measured, and the medical records in the Respondent's handwriting reveal certain changes to medications which do not show either details of the change or the reason therefor. Again, appetite supressants were dispensed, as was a tension reducer, without any physical examination being reflected in the records. The patient was again seen in the office by Respondent on August 22, 1990, and the records for this visit reflect not only the weight but also the blood pressure reading and the pulse rate. Respondent contends that the entry relating to the pulse is in his handwriting and made as a result of an examination, as is the word "excellent" following the note, "CORPUL" in that entry. According to Dr. Weiss, the secretary noted in the record, and it so appears, that the patient was having problems with his bowels. Nonetheless, the records show no details of any examination as a result of this complaint, notwithstanding Respondent's assertion at hearing that whenever he makes an entry in the record he has examined the patient. On October 1, 1990, even after the patient missed his September 20, 1990 appointment, the Respondent authorized his staff to mail a one month supply of prescription medications to the patient. According to Dr. Weiss, this is not within standards, and the medical record does not show why the drugs were mailed, nor does it say which medications were dispatched this way. Weiss contends one can assume it was the same regimen as previously prescribed, but in his opinion, it is inappropriate to do this in a metropolitan area, and to do so is well below the standard of care. This is so especially in light of the previous racing heart beat, the arrythmia and the patient's physical complaints. From Respondent's comment in the record, "this time only", it would appear Respondent recognized the riskiness of his actions, so Weiss believes. On October 29, 1990, the patient again came to Respondent's office and his weight, blood pressure and pulse rate were taken. The secretary noted no problems and that the patient looked well. Respondent noted in his own hand that the cardiac pulmonary condition was excellent and also noted that the patient might be getting a new restaurant. According to Dr. Weiss, this is meaningless to anyone other than the person who wrote it since there is nothing in the record which indicates what the entry means. When the patient came to the office on November 26, 1990, his weight and blood pressure were taken but there is no indication his pulse rate was measured nor is there any entry on the form for that date in the Respondent's hand. According to Dr. Weiss, the prescription for Xanax, which appears to be in the handwriting of the secretary, showed no indication that the patient was examined or, if he was, any clinical findings or clinical reason for the prescription. Again, on December 26, 1990, the patient was weighed and his blood pressure taken, but no pulse entry was made. Again, there appears to be no entry in the Respondent's hand, including the CORPUL description, which is left blank. From this, it is assumed the Respondent did not see the patient. R.C. missed his scheduled appointment on January 21, 1991, and when he appeared at Respondent's office on February 11, 1991, his blood pressure and his weight were noted, but there was no indication the Respondent saw the patient. In fact, the secretary's note indicates the Respondent approved a one month medication pickup but there is no entry in Respondent's hand. From this it would appear the medications were dispensed without the patient having seen the doctor, and in the opinion of Dr. Weiss, this is incorrect practice and below standard. When the patient came in on April 19, 1991, he was seen by the Respondent; his weight, blood pressure and pulse were taken, and at least one of his medications was changed. On this date, Respondent prescribed a tranquilizer, Tranxene. Again, the record fails to indicate any reason for the prescription of a tranquilizer, especially in light of the fact that the note in the secretary's hand indicates that the patient was in a rush but was feeling good and looked well. The record of the May 15, 1991 visit shows that the patient was weighed and his blood pressure taken, but there is no indication of his pulse rate. The secretary noted that the patient was upset because of his girlfriend's diagnosis of breast cancer. In the Respondent's hand, a notation reflects a prescription for Tranxene again as a result of the patient's nervous condition. According to Weiss, this is the type of entry that should be made routinely, but there is no reference in the record to the patient's cardiac pulmonary status which had been routinely commented upon previously. The records also reflect that on July 21, 1991, without seeing the patient, Respondent prescribed a refill on the Tranxene, and called it in to the pharmacy. At this time, the patient had requested a 60 pill prescription with provision for a refill, but the medical note reflects the Respondent said "No." At hearing, Respondent claimed that his use of the word "no" is indicative of his recognition that the patient had a drug personality. This does not necessarily follow, but in any event, Respondent properly refused to give the patient more than a reasonable dose, and a prescription of 36 Tranxene, as given here, is not below standard. On June 1, 1992, there is an indication that the weight, blood pressure and pulse were taken, and it appears the patient had, over a year, gained approximately 25 pounds, though his blood pressure remained about the same. At this point, the note in the secretary's hand reflects that the patient was starting a new job, was feeling fine physically, and was coming off a three month hiatus between jobs. In the Respondent's hand, however, is a reference to Phenobarbitol white and another drug, CH, which is not identified. According to Dr. Weiss, this was two years since a cardiogram or blood profile had been taken, and to continue to prescribe drugs of this nature without any intervening testing of blood or heart evaluation falls below the appropriate standard of care. In fact, the record does not reflect at this visit that the Respondent evaluated the patient's cardiac condition because his description of the CORPUL status does not appear in the record. On July 7, 1992, according to the records, a telephone call to Respondent's office from the medical examiner of Volusia County indicated R.C. had died on June 17, 1992, and requesting the Respondent's medical records. The autopsy report, dated July 31, 1992, reflects that the cause of death was acute drug intoxication, and Respondent contends that this is justification for his refusal to give the patient all the various medications he wanted. A review of the post mortem toxicology relating to drugs found in the patient's urine and blood at the time of death indicates, however, that none of the drugs which were being prescribed by Respondent were found in the deceased's body on autopsy. Respondent is a longstanding practitioner of osteopathic medicine having been in practice since August, 1954. When R.C. first came to see him, on May 1, 1990, the patient's history was taken and recorded on the history form. The patient was 34 years old and claimed to be in fair health. It appears that the patient had moderate emphysema, and at that point and continuing thereafter, Respondent claims, he tried to get the patient to quit smoking. He did not, however, enter this fact in the patient's records. All other signs, however, were normal, except for the patient's blood which showed elevated levels of lipid concentration and low iron. In short, the patient's triglycerides were elevated and his thyroid levels were moderately low. The patient's cardiogram showed a small abnormality in the computer evaluation which Respondent sent to a cardiologist, Dr. Arnold, for interpretation. After the initial visit, and after giving the patient his standard dietary instructions and policies, the Respondent prescribed the medications previously described. According to Respondent, his normal practice was for the nurse to write down what the patient said while weight was taken and blood pressure measured. Respondent usually took the pulse rate. The term, "excellent", used in conjunction with the word "CORPUL" in the records related to heart function, not to the emphysema. Respondent admits that "perhaps" he should have entered the emphysema in the record. Respondent claims he entered all information regarding changes in prescriptions, yet a review of the records clearly shows this is not the case. Many of the entries in the records, which appear to be in the nurse's handwriting, including such things as the patient's reaction to pills on May 7, 1990, was based on Respondent's conversations with the patient which he thereafter recounted to the nurse to be placed into the records. It would appear, however, that there is some confusion whether the entries other than those placed therein by the Respondent, were by a nurse or by a secretary. This was not clarified by the evidence of record. Respondent admits that he does not keep the detailed records he would keep if he were practicing in a hospital situation. He is of the opinion that he is the only one to whom his records need make sense. Because in this case the patient was a friend of his, his need to make further and more detailed patient notes was even less that it would be ordinarily. He was aware of what he considered to be the patient's drug tendency and did not put it in the patient's record because he did not feel that he wanted to subject a friend to this type of record even though he recognized that medical records are, for the most part, confidential. On several occasions, Respondent admitted it was an omission to fail to place a pulse reading in the record or to fail to make certain comments, but he reiterated time and again, that in his opinion his notes did not have to reflect in any detail reasons or rationale for what he did. He consistently took the position that he knew what he did; that he was the only one who looked at the records; and to him, that was sufficient. On July 29, 1991, medications were dispensed after a telephone conversation with the Patient. Respondent claims this was because he had had an argument with the patient over the number of pills which could be furnished; 36 Tranxene tables as opposed to the 60 tablets requested. Respondent admits he authorized the prescription even though he did not see the patient at that time, and in fact did not see the patient again for almost a year. On June 1, 1992, when he again saw the patient, he refused to treat the patient further without another cardiogram and blood work. Nonetheless, Respondent admits, and the records reflect, that on that particular occasion, he allowed the patient to receive his normal prescription for medications, with some modifications, and he admits that all of these medications dispensed are not listed in the patient record. Respondent also admits he does not, and did not, in this case, dispense medications in a child-proof container, as is required by statute and rule. He claims this was because the patient requested they not be placed in a child-proof container, and introduced an entry on the back of the envelope containing the patient's medical records, bearing what purports to be the patient's signature, which so indicates. Respondent also claims that in a discussion with the chairman of the Board of Pharmacy, he determined that use of a crush-proof box in lieu of a child-proof container for these medications, which are, admittedly, controlled substances, was appropriate. Respondent feels that his care of this patient was within standards and that his prescriptions were dispensed with proper medical justification. He contends that R.C. was a hard patient to deal with, being both compulsive and anal retentive. In treating this patient, Respondent claims he used a modified Weintraub protocol, an accepted guideline for the prescription of appetite suppressants and believes he prescribed appropriate medications in appropriate quantities. Respondent also believes he adequately examined the patient before he prescribed any medications for him and contends he always saw the patient before he allowed him to have any more drugs. This has been shown not to be the case. Respondent agrees that a medical record should justify the course of treatment rendered to a patient. Everything should be justified but not, he claims, in as great a detail as in a hospital setting. Respondent is of the opinion that his records are such that a subsequent treating physician could take them and determine what clinical treatment was rendered to the individual without speaking with the Respondent. In addition to the daily narrative record, Respondent contends that the prescriptions are maintained in the records and should be examined in conjunction with the narrative record. If done, this would show what drugs were prescribed and in what amounts. However, it would not show why the prescription was issued initially, and this information is also not adequately laid out in the narrative records. Respondent claims he writes his chart for himself and not for others. Respondent recognizes he did not note any emphysema in his medical records. He also did not enter any instructions he gave to the patient to quit smoking in the medical records. He did not discuss in the records, or with the patient right away, that the patient should continue to exercise. He admits the records do not show that he reviewed Dr. Arnold's report on the cardiogram but only that he received it, and he admits that the records do not show the patient was retaining fluid in the stomach. In that regard, Respondent had recommended metahydrine, a diuretic, for the patient but he contends the record reflecting the patient had had liposuction also reflects that the patient was retaining fluid, and he believed this was sufficient recognition of that fact. This does not necessarily follow, however. Respondent admits that even a bariatric specialist could have had trouble determining from his records that fluid was in the stomach rather than elsewhere in the body. Respondent's treatment of this patient was evaluated by Dr. Wilmer L. Asher, a specialist in bariatric medicine practicing in Colorado for more than thirty years. In the course of his evaluation, Dr. Asher, who has known Respondent as a bariatric physician through the American Society of Bariatric Physicians for approximately twenty-five years, had the opportunity to evaluate Dr. Weiss' written report, the medical records in this case, the investigative report and Dr. Arnold's cardiographic report. Based on his evaluation of the entire file, Dr. Asher concluded that Respondent provided the patient with an adequate initial work-up, more than that usually done. The use of an electrocardiogram on an individual who had no apparent cardiovascular complaints at the time of work-up was above and beyond the norm. He also concluded that the Respondent's prescription, dispensing and administering legend drugs to this patient was neither inappropriate nor in excessive nor inappropriate quantities. Dr. Asher further concluded that on the basis of the Respondent's initial work-up, the diagnosis of obesity was appropriate and the plan of treatment Respondent developed was appropriate for this patient. He concludes that the medical records kept by the Respondent for this patient justified the course of treatment. There is no mention in the record of risk, but, in Dr. Asher's opinion, the medical management of an obese patient by a prudent bariatrician as Respondent, in Asher's opinion, involved a negligible amount of risk. Bariatricians do not ordinarily discuss risks associated with medical management of obesity. Therefore, he contends, Respondent's failure to do so was not below standard. Based on his thirty years of bariatric practice, Dr. Asher was able to find no evidence of Respondent's failure to meet applicable standards of care in his examinations, his diagnosis and his treatment of this patient. In that regard it should be noted that Dr. Asher admitted he was not specifically familiar with Florida standards but concluded they would, in all probability, be consistent with the medical standards in other states with which he is familiar. On October 29, 1992, the Department conducted an inspection of the Respondent's office because of his license as a dispensing physician. At that time, there were several discrepancies noted, one of which was that the Respondent's license to dispense drugs had expired. Respondent admits that this is the case, and that during the period from January, 1992 through October, 1992, he was not registered as a dispensing physician. He claims that he was under the impression that the renewal was automatic, and when he found it was not and his certificate had expired, he immediately sent in the required fee and the application for recertification, which was granted. It is so found. There were, however, other discrepancies discovered during the October 29, 1992 inspection, and these included a failure to properly label medications for dispensing; the sign indicating the availability of generic substitutes was not properly posted; all controlled substance refills were not properly initialed and dated; controlled substance prescriptions were not being properly maintained and purchase records for controlled substances were not maintained and readily recoverable. A follow-up inspection was conducted on July 13, 1994, and all previously identified discrepancies had been corrected. The inspection was considered to be satisfactory. At the hearing, Petitioner offered no evidence of any prior disciplinary action having been taken against the Respondent by the Board or any other regulatory body. Subsequent to the hearing, however, Petitioner moved the introduction of a record of a previous disciplinary action by the Board, the admission of which Respondent strongly resists. A review of the pleading reveals that the record in issue was missed in the agency's prior search of its records because it was filed under a misspelled name. Examination of the document itself does not indicate the alleged misconduct upon which it is predicated. All that can be discerned from a review of the matter objected to is that in 1987 Respondent entered into a stipulated settlement of another Administrative Complaint filed by the Board and that as a result thereof, Respondent was fined $2,000, reprimanded and placed on probation for two years under conditions dictated by the Board. Evidentiary acceptance of this prior action is granted over Respondent's objection with the understanding that it will not be considered on the disputed issue of the Respondent's guilt or innocence of the matters alleged in the instant Complaint but will be considered only if and after a finding of guilt of any of the misconduct alleged herein has been made, and then only as a matter in aggravation of punishment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Edwin Gettins, D.O. be found guilty of violating Sections 459.015(1)(x)(o)&(g), Florida Statutes, (other than utilizing an improper method of dispensing, for which he should be found not guilty); that he be reprimanded and ordered to pay an administrative fine of $4,000; and that his license to practice osteopathic medicine in Florida be placed on probation for two years under such terms and conditions as may be prescribed by the Board of Osteopathic Medicine. RECOMMENDED this 9th day of November, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-1834 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. - 3. Accepted and incorporated herein. 4. & 5. Accepted and incorporated herein. - 8. Accepted and incorporated herein. Accepted. - 12. Accepted and incorporated herein. 13. & 14. Accepted and incorporated herein. 15. - 25. Accepted and incorporated herein. & 27. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. - 32. Accepted. 33. & 34. Accepted but characterization of records as 35. - 37. "deficient" borders on being a Conclusion of Law. Accepted and incorporated herein. 38. Accepted. 39. Accepted. 40. Accepted. 41. First sentence accepted and incorporated herein. Second sentence accepted. 42. Accepted. 43. - 45. Accepted and incorporated herein. 46. Accepted. 47. Accepted. 48. - 50. Accepted and incorporated herein. 51. Accepted. 52. Accepted. 53. - 56. Accepted and incorporated herein. 57. Accepted. 58. Accepted. 59. - 62. Accepted and incorporated herein. 63. Accepted. 64. Accepted. - 69. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted. - 84. Accepted and incorporated herein. Accepted. - 92. Accepted and incorporated herein. Accepted. - 97. Accepted and incorporated herein. 98. Accepted. 99. Accepted and incorporated herein. 100. Accepted. 101. Accepted and incorporated herein. 102. Accepted. 103. - 107. Accepted and incorporated herein. 108. - 110. Accepted. 111. Accepted and incorporated herein. 112. - 115. Accepted. FOR THE RESPONDENT: Accepted and incorporated herein. Accepted and incorporated herein. Rejected as not being an accurate statement of facts in all cases. Accepted. Rejected as contra to the weight of the evidence. Rejected as contra to the weight of the evidence. COPIES FURNISHED: Britt Thomas, Esquire Agency for health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Wilson Jerry Foster, Esquire Suite 101-A 1342 Timberlane Road Tallahassee, Florida 32321-1775 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309 William H. Buckhalt Executive Director Board of Osteopathic Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: During times material hereto, and particularly from January 1, 1983 through December 31, 1985, Respondent, Eusebio Subias, M.D., was a licensed medical doctor in Florida, board certified in Psychiatry and an eligible Medicaid provider of psychiatric services pursuant to the Medicaid contract he is party to with DHRS dated October, 1982. (Petitioner's Exhibit 1). Medicaid regulations and guidelines require physicians to meet board certification in psychiatry before they may provide reimbursable psychiatric services to Medicaid eligible recipients. As part of his agreement to participate in the Medicaid Program, Respondent agreed to keep such records as are necessary to fully disclose the extent of services provided to individuals receiving assistance in the state plan. Respondent also agreed to abide by the provisions of pertinent Florida administrative rules, statutes, policies, procedures and directives in the manual of the Florida Medicaid Program. (Petitioner's Exhibit 2). During 1986, the Surveillance & Utilization Review System unit of the Medicaid Office indicated that the amount of Respondent's medicaid billing greatly exceeded that of his peers. Based on that indication, the Office of Program Integrity asked Respondent to provide them with copies of certain medical records for the year 1982. Respondent provided the Department with those records as requested. (Petitioner's Composite Exhibit 3). Those records were forwarded to the peer review committee for evaluation. The records were reviewed by both the local and state peer review committees. The 1982 records contained inadequate information for the peer review committee to document or otherwise justify the number of office visits per patient. The records did not contain reasons for treatment, reasons for frequency of visits or what specific services were rendered to patients. (Petitioner's Exhibits 16 and 17, Pages 3 and 4 and Composite Exhibit 3). On April 21, 1986, Petitioner notified Respondent that it determined that he overbilled Medicaid in the amount of $17,820.09 for the calendar year 1982. Respondent was then notified that a similar review would be conducted for the period January 1, 1983 through December 31, 1985. That review and the results thereof are the subject of this proceeding. The Department subsequently requested, and Respondent provided medical records for 85 specific recipients which were selected by means of the "Disproportionate Stratified Random Sampling" (DSRS). (Petitioner's Exhibit 7). Respondent's 1983-85 records contain substantially more details than the records he provided Petitioner during the 1982 review period. Petitioner had its medical consultant, Dr. Forsthoefel, review the 1983-85 records. He was a member of the peer committee which made the peer review determination in 1982 which was used as a guide for the degree of overutilization. Forsthoefel denied those office visits that he determined were not supported by documentation in the medical records and concluded that the visits were not medically necessary. As a result, Petitioner sent Respondent a letter advising that he had overbilled medicaid in the amount of $79,093.05 for the years 1983-1985. (Petitioner's Exhibits 9 and 13). By letter dated September 5, 1986, Respondent requested a meeting to discuss the Department's proposed action and such a meeting was granted on October 31, 1986 at 1:30 p.m. Dr. Forsthoefel, Dr. Conn, Petitioner's Chief Medical Consultant in 1982, Millie Martin, and Respondent attended the October 31 meeting. During the meeting, Respondent attempted to individually review each of the approximately 3200 medical records for patients he treated during the years 1983-85 such that he could explain and document the medical necessity of each of the patient's office visits. He also requested that Petitioner have the records reviewed by a psychiatrist. Neither Dr. Conn nor Dr. Forsthoefel are psychiatrists. Dr. Conn left soon after the meeting began. Dr. Forsthoefel, unable and unwilling to comply with Respondent's request that each medical record be individually reviewed, concluded that continuing the meeting would not be productive and left after approximately 2 hours. The Department again denied those visits which it had early concluded were not medically necessary based on the review by its medical consultants. By letter dated November 10, 1986, Petitioner again advised Respondent that the Department would seek a $79,093.05 overpayment for the years 1983-85 and advised him of his rights to a formal hearing. Drs. Mutter and Tumarkin were commissioned by Petitioner to review the medical records under scrutiny with each doctor reviewing one half of the records. Based on their review, Respondent was denied reimbursement for even more office visits based on their opinion that the records did not contain sufficient documentation or notations that would indicate continued office visits were medically necessary. (Petitioner's Exhibits 17a and 18). Dr. Tumarkin made his comments on Respondent's medical records in green ink. Those records which did not contain green marking were records numbered 3 and 27 resulting in the Department's overstating the overpayment claim by $125.01. Respondent introduced information regarding Medicaid's denial of claims which should have been billed to Medicare. During the period from May 1985 through December 31, 1985, certain denials fall within the 1983-85 review period and since the Department never paid such claims, the Department agreed at hearing to reduce its overpayment amount by $6,421.44. Also at hearing, Petitioner determined that it made an error in its computation of the figures stated in the November 10, 1986 letter and was now seeking $78,661.93 minus $6,421.44 for the amount claimed to be overbilled by Respondent as $72,240.49. Respondent, who is of hispanic origin, treats a substantial number of Spanish speaking patients. Respondent graduated from medical school in Cuba at the age of 22 and participated in a rotating internship at Mercy Hospital in Hampton, Ohio. He came to Florida in 1963 and was licensed in 1964. In April, 1963, Respondent was employed at Hollywood Memorial Hospital. Respondent was the third Spanish speaking doctor to practice in South Florida and was the first to be promoted to a chairmanship at Hollywood Memorial Hospital. Respondent was the first clinical director at Coral Reef's Hospital. He is a member of several medical societies and was involved in the development of several psychotic drugs, including Elavil. Respondent is board certified in psychiatry. Respondent has staff privileges at Hollywood Memorial Hospital and three other area hospital. He has practiced psychiatry for more than 25 years in the United State and is accomplished in the treatment of severe psychotic patients. Respondent was tendered and received as an expert in psychiatry. Southeastern Florida was inundated during the early 1980's with mentally ill refugees during the Mariel Boat Lift. That area has a uniquely high need for psychiatric services due to its characteristic as a metropolitan area with a large homeless population. The Marlowe Study which was commissioned by Petitioner to review the need for psychiatric services in Dade County during the period which coincided with the Respondent's 1983-1985 office practice here under review, concluded that insufficient resources were earmarked for the treatment of mentally ill residents of Dade County, Florida. Respondent prefers to treat severely psychotic patients on an outpatient basis. He has been very successful in utilizing this method of treatment and it has resulted in substantial public benefit in the form of substantial financial savings that would have otherwise been required to hospitalize such patients for treatment. Respondent is paid $35.01 for a 45 minute session for each Medicaid patient whereas the average cost for inpatient treatment at an area hospital is approximately $400.00 per day. Respondent modified his record keeping practice in 1982 so that his medical records for 1983-85 contained the minimum requirements for medical records necessary to support Medicaid billings as specified in Rule 10C- 7.030(1)(m) and 10C-7.062(1(n) Florida Administrative Code. All of the medical experts testified that Respondent's records for the period at issue here met the minimum requirements specified in the required regulations and DHRS's procedure manuals. Those requirements are: dates of services; patients name and date of birth; name and title of person performing the service, when it is someone other than the billing practitioner; chief complaint on each visit; pertinent medical history; pertinent findings on examinations; medications administered or prescribed; description of treatment when applicable; recommendations for additional treatments or consultations; and tests and results. Petitioner presented testimony through Ms. Martin to the effect that Respondent had admitted during his October 1986 meeting with the medicaid consultants that he had, from memory, gone back and recreated his medical records for 1983-85. Respondent denied this at hearing and credibly testified that based on the deficiencies found in the latter part of 1982 concerning his medical records, he commenced to prepare a complete medical record for each patient visit. Respondent's testimony in this regard is credited and none of the medical professionals, save Ms. Martin, presented any evidence which would call into question the accuracy of Respondent's records during the period 1983- Ms. Martin's testimony to the contrary is rejected. Dr. Forsthoefel candidly admitted that he is not qualified to render an opinion with respect to medical necessity and appropriateness of specialized psychiatric services. Respondent is the first psychiatrist reviewed by the Medicaid officials of Petitioner for over-utilization as Petitioner's officials were unaware of any other psychiatrist who had been reviewed prior to Respondent. The peer review process for determination of over-utilization and mis- utilization of Medicaid services is designed so that the physician being reviewed may discuss individual patient records and cases with the Committee, as well as the Medicaid consultants who later apply peer review findings, and such discussion will be considered in arriving at a final determination. (Peer Review SOP, April, 1987, Respondent's Exhibit 12). An integral part of peer review for the physician being reviewed is to be able to discuss individual cases with the reviewer prior to a final determination being made concerning medical necessity and appropriateness. Such interplay and explanations regarding certain aspects of a case can lead to a more detailed determination concerning an overpayment issue. Respondent's October 1986 review should have been a complete new review of individual records affording him an opportunity to discuss specific cases with the physician consultants, provide him an opportunity to substantiate certain treatments based upon his recollection and justify the treatment modality he utilized for the 85 patients which comprised the random sampling. 2/ Respondent was not permitted to meaningfully discuss those individual cases even though he requested an opportunity to do so. This is so despite Petitioner's consultant's admission that such a consultation would have aided them and perhaps changed their opinion with respect to medical necessity and appropriateness of specific treatments rendered by Respondent. (Testimony of Conn, Forsthoefel, Tumarkin and Whiddon). While some experts would treat severely psychotic patients on a less frequent basis than Respondent and hospitalize them sooner, Respondent's method of treatment is well accepted among qualified board certified psychiatrists. Dr. Tumarkin's different treatment philosophy wherein he favored inpatient treatment for severely psychotic patients while Respondent showed a preference for outpatient treatment, is in no way indicative of inappropriateness by Respondent's method of treatment since his method was proven to be successful. Additionally, one expert, Dr. Tumarkin would have allowed more visits as being medically necessary and appropriate had he been advised by Petitioner's representatives that he should apply the community standard for medical necessity and appropriateness of psychiatric services. A Medicaid provider of psychiatric services is required to provide services equivalent to that of their peers. Had Dr. Tumarkin consulted with Respondent, his opinion concerning medical necessity and appropriateness would have been affected and he would have requested such had he known that he was allowed to. This is especially so based on the fact that his treatment preference is more hospital oriented. It is thus concluded that Respondent was not given a fair opportunity to present circumstances relevant to the overpayment amount in question here, despite his request to do so. (Petitioner's Exhibit 14). A review of a Peer Comparison Analysis with Respondent's practice respecting the number of office procedures per patient performed by him in contrast to other medicaid psychiatrists, indicates that Respondent saw his patients, on average, less than the average for other psychiatrists in Dade, Monroe and Broward Counties between the years 1983-85. (Petitioner's Exhibit 22). Dr. Stillman is board certified in psychiatry and has been practicing for more than 30 years. He reviewed, as Respondent's expert witness, all of the 85 patient charts in question. Dr. Mutter rendered a specific report about the even numbered charts that he reviewed. His reports indicates, with respect to many charts, that he was unable to find specific documentation supporting the reasons and medical necessity for treatment. This testimony was sharply contradicted by that of both Dr. Stillman and Respondent who easily located specific record documentation which indicated the medical necessity and reasons for services provided to patients by Respondent. Examples of over-utilization from Dr. Mutter's report were inquired about and on each occasion, Respondent and Dr. Stillman were able to identify documents not referred to by Dr. Mutter that substantiated the medical need and reasons for treatment. Drs. Subias and Stillman's testimony was not contradicted by Petitioner. Without going through each patient's records, a review of the findings concerning several patients is illustrative and will be herein discussed. Patient number 85, S. T., Jr. 3/ was a schizophrenic, suffering from epilepsy with borderline intellectual functioning. He was a very psychotic patient who was, during his early years, treated in an institution. (Petitioner's Composite Exhibit 5). He was obese, apprehensive, disoriented, suffered from impaired insight and judgment, a depressed mood, flat affect and a constant feeling of rejection. Respondent commenced treating patient number 85 twice weekly as an outpatient and as his condition improved, he was seen once a week and office visits were reduced further as his condition continued to improve. Without this intense continuity of treatment, patient number 85 would have decompensated and would have required an extensive institutionalization. Respondent provided substantial documentation as to the need for each of S. T.'s visits. Patient number 83, C. C., was a schizophrenic who suffered from depression, was delusional with a flat affect, poor reality contact and went through extended periods of depression on a monthly basis. Respondent prescribed benadryl to counteract patient C. C.'s delusional symptoms and otherwise justified his method of treatments, frequency and reason for each visit. Respondent substantiated that it was medically necessary to treat patient C. C. on each occasion where treatment was provided. Respondent's medical records provided the documentation for treatment in each instance. Patient number 81, F. D., was a schizophrenic who suffered severe mental depression. His condition had deteriorated to the point whereby family therapy sessions had to be scheduled by Respondent. Respondent was able to keep F. D. out of the hospital, he remained with his family and his condition improved to the point where the frequency of visits were reduced. Respondent's records justified the medical necessity and reasons for the treatment he provided patient F. D. Respondent testified as to his method of treatment as to patients 88, 78, 77, 52, 56, 48, 46, 38, 40, 60, 68 and as to each of those patients, Respondent's records document that the patients treatment and visits were medically necessary and appropriate. Dr. Stillman demonstrated that on each occasion, there was substantial record documentation which supported the necessity for the treatment as provided by Respondent. Based upon the inconsistent evidence presented by Petitioner respecting its claim that Respondent failed to document the medical necessity for the treatment he provided to the patients during the years 1983-85 and the direct evidence presented by Respondent which established that all of the services rendered by him to Medicaid recipients were medically necessary and appropriate under the circumstances, it is concluded that Petitioner failed to establish by a preponderance of the evidence that any of the treatments here in dispute were unnecessary, inappropriate or were not otherwise documented by the medical records under review. Moreover, all of the experts agree that the treating psychiatrist is best able to determine the medical necessity and appropriateness of specific treatments to render to a patient as that psychiatrist has direct contact with, and is best able to fully apply his or her training and experience. Respondent amply demonstrated that the services here at issue were medically necessary, appropriate and was of clear benefit to the patient. Petitioner has failed to meet its burden of establishing any basis for an overpayment as claimed. 4/
Recommendation Based on the foregoing Findings of- Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Health and Rehabilitative Services enter a Final Order finding that there was no overpayment to Respondent during the years 1983- 85. Respondent is entitled to a refund of all monies held pursuant to the overpayment calculation by the Department in this cause together with 10% for annual interest pursuant to Rule 10C-7.060(12), Florida Administrative Code. DONE and ORDERED this 18th day of November, 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 21st day of November, 1988.
The Issue At the hearing, DPR dismissed Count II, alleging a violation of subsection 458.331(1)(h) Florida Statutes. The remaining issues for resolution are whether, as alleged in Counts I, III, IV and V, Dr. Robinson violated subsections 458.331(1)(n),(q), and (t) Florida Statutes by failing to maintain adequate records, by inappropriately prescribing controlled substances, and by failing to properly evaluate and treat multiple medical problems.
Findings Of Fact Jerry Mason Robinson, M.D., has been continually licensed (license number ME 0011811) as a physician in the State of Florida since 1965. He was Board-certified in Family Practice in 1973 and was recertified in 1979 and 1985. He has continually practiced medicine since 1967 in Deltona, Florida, as a sole practitioner in family practice. Patient Fleming Dr. Robinson began treating Jesse Fleming when he came to his office on March 14, 1979, with complaints of being unable to breathe, a feeling of suffocation, and inability to sleep. The patient was found to be suffering from refractory heart failure and was admitted that same day to Seminole Memorial Hospital. Jesse Fleming was discharged as improved on March 23, 1979. His final diagnosis, reflected on the discharge summary, was: refractory heart failure, chronic obstructive pulmonary disease, and Pickwickian's syndrome. The notation "Pickwickian Syndrome" also appeared on the first clinical data sheet, dated March 14, 1979, in Dr. Robinson's office records for this patient. Pickwickian Syndrome, in lay terms, is a condition occurring in obese individuals wherein the abdominal fat presses on the diaphragm, cutting off the breathing and causing sleep at odd and inappropriate times. While Dr. Robinson initially felt that the condition was Pickwickian Syndrome, after the patient lost substantial weight in the hospital, he felt the proper diagnosis should be narcolepsy, a similar condition. He started him in the hospital on Dexedrine tablets, 5 mg. each morning, to increase his alertness. Narcolepsy is a very rare disease characterized by periods where the patient falls asleep uncontrollably many times during the day. The patient also has cataplexy, which is episodes of collapse that occur intermittently with emotional stress, laughing, giggling and fear. Another aspect of narcolepsy is called hypnagogic hallucinations, where an individual has vivid dreams. And the fourth part is called sleep paralysis where the patient cannot move on occasion without being touched. While there is no single test available to unconditionally diagnose a case of narcolepsy, the competent experts agree that a complete history and physical examination is required. The patient should be asked about sleeping patterns and about the symptoms described above. Testing through an electroencephalogram (EEG) and polysomnography is helpful. It is also important to specifically eliminate other causes of somnolence such as medications or other physical conditions, such as thyroid disorders or anemia. Dr. Robinson's records for Jesse Fleming are void of any documentation of the basis for his diagnosis of narcolepsy. The hospital discharge summary of his course in the hospital mentions only that the patient was found to be somnolent and sleeping all the time. He was on Valium in the hospital, 2 mg., 4 times a day to reduce anxiety. Valium is considered to be a central nervous system depressant and has drowsiness as one of its components. There is another notation on the records, on the occasion of an office visit, that the patient fell asleep in the office. This alone, does not indicate a case of narcolepsy. Although Dr. Robinson continued Mr. Fleming on Dexedrine or similar drug, Eskatrol, from the time that he was discharged from the hospital in March 1979, the first notation of a diagnosis of narcolepsy does not appear until March 20, 1981. The term appears intermittently as a diagnosis thereafter, but without description of any symptoms. Dexedrine is a Schedule II controlled substance. It is generally considered one of the amphetamines, a central nervous system stimulant. It has a high liability for habituation, or psychological dependence and overwhelming desire to continue to use the medication. It should not be used in those conditions in which it causes unnecessary stress on the vital organs of the body. It increases the demand of the heart for oxygen and can compromise an already failing heart. It is dangerous to give Dexedrine with thyroid hormones because the hormones make the heart more sensitive to Dexedrine and to the body's own form of Dexedrine, which is adrenalin. If given at all with Digoxin or Digitalis, Dexedrine should be given only with great care because these drugs slow the heart rate, an opposite effect of Dexedrine. In the past amphetamines were widely used to assist in weight control. That use was restricted and the treatment of narcolepsy is one of the remaining legitimate uses. And at least one expert in this proceeding, Jacob Green, M.D. would designate Ritalin, or a similar sympathomimetic drug as the treatment of choice for narcolepsy. In late 1981, Eskatrol was no longer available and Dr. Robinson began prescribing Dexedrine spansules, 15 mg., 200 or 100 at a time, at approximately monthly intervals. The patient has continued on this medication through 1985 and up to the time of the hearing. Around June 1979, Dr. Robinson began to prescribe Synthroid, a thyroid hormone, for Fleming's hypothyroidism at the same time that the patient was taking the amphetamine. On one occasion when the patient complained that he could not sleep, Dalmane, a sleeping medication was prescribed. Dexadrine spansules are a time-release medication which allows the effects of the drug to remain in the body for a longer period, including night time, when sleep is appropriate. Also while Fleming was on Eskatrol or Dexedrine, Dr. Robinson intermittently prescribed Brethine (a stimulant) for his lung problems, and on an on-going basis, Digoxin, for his heart condition. Assuming without the medical record basis to substantiate it, that the narcolepsy diagnosis was accurate, the prescription of Dexedrine to Jesse Fleming was dangerous and inappropriate. The patient records for Fleming are replete with references to irregular heart beats. On some occasions the nurse recorded "very irregular" apical pulses. These irregularities are sometimes a harbinger of heart failure and can occur in, or be exacerbated by, amphetamine therapy, especially in combination with thyroid hormones. In his testimony at hearing, Dr. Robinson stated that when he observed the notation of an irregular pulse he would check the patient himself to assure that the patient was alright. However, these observations are not reflected in the chart, except on one occasion when an EKG was taken and was found to be within normal limits. Good medical record-keeping is an essential aspect of a reasonable prudent physician's practice. Records are the mainstay of communications between physicians and provide a reminder to the physician with a busy practice. The records should provide objective findings and, from the patient, subjective findings. They guide the physician into what he was thinking previously and what needs to be done in the future. In a mobile society, when patients move from doctor to doctor, when specialists are brought in for consultation, when a regular doctor is absent, it is essential that another physician be able to view what has happened in the case from the medical records. Everything that is done needs to be justified in and documented in the records. The absence of a notation leads to the justifiable conclusion that the treatment was not undertaken or the test was not performed. Dr. Robinson failed to maintain adequate records to support his treatment of Jesse Fleming. The bases for his diagnosis of narcolepsy was utterly lacking, as was the basis for the decision to persist in prescribing Dexedrine under dangerous and potentially life-threatening conditions. Patient Kipp Fred Kipp was first examined by Dr. Robinson on June 8, 1978. He came to the office to get some prescriptions for medication that he was already taking. He had angina and a bad cold and was getting ready to return to Ohio, his summer residence. The history given by the patient on that first visit indicated that he had undergone two hip operations and an operation on his cervical spine for fusion. He had two aneurysm operations on his aorta, he had a hemorrhoidectomy and an amputation of his left second finger. At various times in the past he had been treated for severe arthritis in his back and foot, angina, hypertension, diabetes, pneumonia and hepatitis. His medications were Naprosyn for arthritis, Isordil for angina, Diabinese for diabetes, Hydrodiural for his hypertension, Percodan for his pain in his back, and Nitroglycerin for his angina. Dr. Robinson examined the patient and refilled his Naprosyn and Isordil. He told him to come back to see him in the fall when he returned to Florida. Fred Kipp returned to Dr. Robinson's office on December 7, 1978, complaining of chest pain. He was admitted to Seminole Memorial Hospital for pre-infarction angina and was discharged on December 11, 1978, with diagnoses of angina pectoris and coronary artery disease. From December 1978, until present, Dr. Robinson has been Fred Kipp's regular family physician. During this time he has treated him for angina or coronary artery disease, arthritis, hip problems, diabetes, back pain, shingles, vascular problems and chronic severe pain associated with all of these conditions. During this period the patient was hospitalized at least six times, primarily with heart trouble, but also for uncontrolled diabetes and impending gangrene. During a September 1984 admission to Central Florida Regional Hospital (formerly known as Seminole Memorial Hospital), the patient was diagnosed as having severe ankylosing spondylitis, a progressive spinal disease where the vertebrae ultimately become fused. The initial diagnosis was based on the patient's statement of his prior history, but the diagnosis was later confirmed by Dr. Robinson with an x-ray and CAT scan. The condition is very painful. During the course of his treatment of Fred Kipp, Dr. Robinson has kept the patient on Percodan for pain, in addition to his various medications for his multiple problems. Percodan is a Schedule II controlled substance containing oxycodone and aspirin. It is an analgesic with opium-like properties and is useful for moderate to moderately-severe types of pain. Because of the nature of the drug it has a potential for habituation and dependency, particularly when used on a regular long-term basis for chronic, as opposed to acute (temporary) pain. In order to avoid the habituation and dependency, less-addictive modalities should be tried before Percodan is selected as the treatment of choice. Dr. Robinson's office records for Fred Kipp do not reflect the consideration of alternatives. However, Dr. Robinson was aware that alternatives such as non-steroidal and anti- inflammatory agents were tried by consulting physicians, including by Dr. Broderick with Seminole Orthopaedic Associates. Fred Kipp is a very large man, approximately six feet, eight inches tall and weighing from 247 to 281 pounds. The dosages of Percodan prescribed for him by Dr. Robinson were not excessive, given the patient's size and physical problems. He has received between 200 and 300 Percodan per month for the last six years. At no time did he ever claim to have lost his prescription in order to get more drugs. Although the use of a strong narcotic with a chronic pain patient is the last resort of a reasonable, prudent physician, the use of Percodan was necessary and appropriate in Fred Kipp's case to allow him to maintain a reasonable quality of life. This finding is based not upon Dr. Robinson's office records, but rather on the competent expert testimony of his witnesses, who examined the patient and his records, and on the hospital records and consulting physicians' records in this case. Dr. Robinson's office records are deficient as to documented analysis of the patient's pain (subjective and objective observation) and efforts with less addictive modalities. While Dr. Robinson claimed that he requested Fred Kipp's records from his prior treating physician, his own records do not reflect that fact, nor was the attempt repeated when the first request was unproductive.
The Issue Whether respondent's license to practice medicine should be disciplined on grounds that: (1) he engaged in gross or repeated malpractice or failed to practice medicine with the required level of care, skill, and treatment, and (2) he is unable to practice medicine with the requisite skill and safety by reason of illness or as a result of a mental or physical condition.
Findings Of Fact Based upon the evidence presented at hearing, the following facts are determined: Respondent is an 80-year-old physician licensed to practice medicine in Florida. He has been a general practitioner in the Miami area for over 40 years; during that time, he has earned the respect and esteem of the medical community. During the 1940s, he helped establish the first cancer clinic in Dade County; he is recognized as one of the community's early medical pioneers. He has never before been the subject of a disciplinary action for professional misconduct. (Testimony of Bishop, Boughton; R-2.) I. The Claresta Halloran Abortion On July 3, 1980, Ms. Claresta Halloran, age 35, visited respondent's office for a therapeutic abortion. She told respondent that her last menstrual period was "sometime in April." (P-3.) Respondent palpated her, examined her by use of a sounding instrument, and dilated her uterus. After determining that she was approximately 12 weeks pregnant, respondent attempted to abort the fetus by suction and curettage. Fearing that he had perforated Ms. Halloran's uterus, respondent had her transported to North Miami General Hospital for an exploratory laparotomy. Results of the exploratory surgery were negative; there was no evidence of perforation of the uterus or injury to the bowel. (Testimony of Boughton; P-3.) William Wickman, M.D., performed the exploratory surgery on Ms. Halloran at the hospital. His bimanual examination revealed an enlarged uterus, "the size of approximately [a] 12 week pregnancy." (Testimony of Boughton; P-3.) Two days after the surgery, Ms. Halloran passed a macerated fetus which, after pathological examination, was estimated to be of 17 weeks' gestation. Her convalescence from surgery was otherwise uneventful and she was discharged from the hospital the next day, July 6, 1980. (Testimony of Boughton; P-3.) Absent specialized training, abortions "from below," that is, by dilating the cervix and removing the contents of the uterus, should not be performed on pregnancies which have progressed beyond 12-weeks. This is because, after 12 weeks, the fetus's bones have developed calcium and sharp, razor-like edges which can perforate the uterus and endanger the health and safety of the patient. (Testimony of Rudolph.) Respondent has not received specialized training which would enable him to safely use the "from below" method on pregnancies beyond 12 weeks. However, his examination of Ms. Halloran led him to believe she had been pregnant for 12 weeks. In reaching that conclusion, he did not rely solely on the date of the patient's last menstrual period. His palpation and examination of the patient's uterus confirmed that the pregnancy was approximately 12 weeks. Dr. Wickman's subsequent examination of the patient at the hospital confirmed that the patient's uterus indicated an approximate 12-week pregnancy. (Testimony of Rudolph, Boughton; P-3.) There are other more advanced methods, such as sonography, which enable one to more accurately determine the gestational age of a fetus. However, the evidence does not support a finding that respondent's failure to use such methods constitutes malpractice or a failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. (Testimony of Rudolph.) Respondent admits that he erred in his diagnosis of the stage of Ms. Halloran's pregnancy. However, his diagnosis was not shown to have been unjustified or unreasonable in light of the facts known to him at the time. Both the date of the patient's last menstrual period and manual examination of the uterus supported a determination that the pregnancy was approximately 12 weeks. The "from below" abortion procedure which respondent utilized is only unacceptable for use on pregnancies in excess of 12 weeks. In short, respondent's treatment of the patient was consistent with his diagnosis. While the diagnosis was in error -- the fetus was of 17 weeks' gestation, not 12 weeks -- other physicians, under similar circumstances, would likely have made the same error. (Testimony of Boughton; P-3.) II. The Wilhemina Evans Abortion On August 5, 1980, Ms. Wilhemina Evans, age 18, visited respondent's office for a therapeutic abortion. She told respondent that her last menstrual period was at the end of April. He palpated her, placed a sounding instrument, and dilated her uterus. After concluding that she was at least 13 weeks pregnant; 2/ he attempted to abort the fetus "from below" by use of placental forceps and a curette. He thought the abortion had been successful and permitted the patient to, return home. (Testimony of Rudolph, Boughton; P-4.) The next day, the patient went to Jackson Memorial Hospital complaining of abdominal pain. Several minutes after arriving at the emergency room, she passed a 750-gram male still-born fetus. Subsequent pathological examination indicated that the fetus was of 24 weeks' gestation. (P-4.) Respondent failed, in several respects, to provide Ms. Evans with treatment which is recognized by a reasonably prudent similar physician as acceptable under similar circumstances. Without special training, the "from below" method of aborting the fetus should not have been used on a woman beyond 12 weeks pregnant. 3/ Moreover, if respondent was uncertain of the gestational age of the fetus, he should not have attempted to abort the fetus "from below" in an office setting. Despite the patient's obesity, respondent should have been able to determine the advanced gestational stage of the fetus. Finally, a reasonably prudent similar physician would have realized that the attempted abortion had been unsuccessful and would not have permitted the patient to immediately return home. Thus, it is concluded that respondent's treatment of Ms. Evans was inconsistent with acceptable medical practice. 4/ (Testimony of Rudolph.) III. Treatment of Skin Lesions of Bernice Riordan Since 1951, Bernice Riordan, age 68, has been a patient of respondent's. Over the years, he treated her for various ailments, including basal cell carcinomas and squamous cell carcinomas on her face and neck. He used different techniques to treat the carcinomas; electrocoagulation in 1955; electrodesiccation and silver nitrate in 1961, 1962, 1972, and 1976; bichloracetic acid in 1976; and 5-Fluorouracil in 1978. In April, 1961, respondent referred Ms. Riordan to a dermatologist for specialized treatment. In 1969, he referred her to Jackson Memorial Hospital for radiation therapy because of multiple lesions on her face. She was a difficult and eccentric patient; she continually resisted his efforts to refer her to specialists for treatment of her increasingly serious carcinomas. Finally, in 1980, he referred her to two specialists -- a plastic surgeon and another dermatologist. By 1980, the cancer of the skin on her face had destroyed the entire nose and perioral skin. (Testimony of Boughton; P-2.) The Department presented, by deposition, the testimony of Dr. Richard C. Childers, a dermatologist who had reviewed the patient records of Ms. Riordan. He graduated from medical school in 1969 and was licensed to practice medicine in Florida in 1971. Since 1974, he has engaged in the private practice of dermatology in Gainesville, Florida, with a clinical appointment at Shands Teaching Hospital. It was Dr. Childers' opinion that respondent should have referred Ms. Riordan, no later than 1959, to a specialist for treatment of recurring skin lesions. Dr. Childers also opined that respondent, on numerous occasions over the years, had used ineffective or inappropriate treatment techniques on Ms. Riordan's lesions. (P-2.) Dr. Childers' testimony is rejected as inadequate to establish that respondent failed to provide treatment to Ms. Riordan which is recognized by a reasonably prudent similar physician as being acceptable under similar circumstances. Dr. Childers is a specialist in dermatology, not a general practitioner. He practices in Gainesville, not Miami. When respondent applied many of the complained of treatment techniques to Ms. Riordan, Dr. Childers had not yet begun medical school. It would be patently unfair to measure treatment for carcinomas furnished by a general practitioner in 1961 by a specialist's with the standard of care applicable to general practitioners in the Miami area during the period in question. to establish an appropriate standard of care applicable to respondent's treatment of Ms. Riordan. (Testimony of Boughton; P-2.) IV. Respondent's Ability to Practice Medicine with Reasonable Safety to His Patients On April 27 and 30, 1981, a mental status examination was given psychiatrist's opinion, respondent's appearance, behavior, and overall thinking was intact; there was no evidence of psychosis. However, respondent's response was somewhat impaired. Dr. Bishop concluded that respondent suffers from of Bishop.) Respondent recognizes that his advanced age affects his ability to However, he believes that he is able to operate an office practice with reasonable skill and safety and without endangering his patients. He is willing his work. The practice of medicine is his avocation as well as his profession; it is the habit and pleasure of his life. (Testimony of Boughton.) interfere with his ability to practice medicine with reasonable skill and safety to his patients. The ability to remember facts is essential to a physician's patient's illness. (Testimony of Bishop.) However, the evidence is insufficient to demonstrate that respondent's his livelihood. The evidence on the extent which his impairment will affect his ability to practice is problematic. He is willing to submit to the supervision supervision of another physician, it is likely that he will be able to practice medicine with reasonable skill and safety to his patients. (Testimony of
Recommendation Based on the foregoing, it is That respondent's license to practice medicine be suspended until respondent submits to the Board an acceptable proposal which ensures that his the Board approves the proposal, respondent should be placed on a probationary status and his practice restricted to exclude the performance of surgery and DONE AND RECOMMENDED this 20th day of November, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1981.
