Findings Of Fact On June 5, 1985, the Department filed an administrative complaint against the Petitioner. That complaint alleged Petitioner had violated seven subsections of Section 458.331, Florida Statutes. The matter was not referred to the Division of Administrative Hearings for formal proceedings until July 10, 1987. The record does not explain the time delay which elapsed between the time of filing the administrative complaint and the time the matter was referred for hearing. On September 7, 1988, a formal hearing was conducted in connection with the matter. On November 16, 1988, a recommended order was entered which recommended the dismissal of all counts of the complaint. The basis for the recommendation was the Department's failure to prove by clear and convincing evidence the facts constituting the alleged violations. A ruling on a preliminary motion had determined that the Department was not entitled to compel the licensee to testify or provide evidence against himself. On February 18, 1989, the Board of Medicine (Board) entered a Final Order, DOAH Case No. 87-2896, which approved and adopted the recommended order, both as to the findings of fact and conclusions of law. The Board rejected all exceptions which had been filed by the Department. Petitioner is a "prevailing small business party" and is entitled to seek attorneys fees pursuant to Section 57.111, Florida Statutes. Petitioner has not sought fees on another basis. Petitioner filed his petition for fees within 60 days of becoming a prevailing party and has, therefore, timely asserted his claim for fees. The attorney fees and costs which Petitioner seeks are reasonable for the fees and costs incurred for all preparations in these proceedings (prehearing stipulation). The amount claimed to be due Petitioner exceeds $15,000. There are no special circumstances which would make the award of attorney's fees and costs unjust (prehearing stipulation). The administrative complaint which is the subject of this case was filed following a probable cause panel meeting which occurred on May 23, 1985. Present at that meeting were panel members Bass and Feinstein. Information presented to the members included an investigative report. Both members acknowledged that they had thoroughly reviewed the materials related to the allegations against Petitioner. After reviewing the materials, the probable cause panel recommended the filing of the administrative complaint. Included with the investigative report were the following documents: a uniform complaint form, dated October 8, 1984, based upon a letter, dated October 2, 1984, received from the Food and Drug Administration; a copy of a letter dated October 23, 1984, addressed to Petitioner from the investigator informing Petitioner of the pending investigation; a copy of a letter from an attorney on behalf of Petitioner (which letter referenced the Fountain of Life Medical Centers and suggested Petitioner had valid patient/doctor relationships with persons being treated); another letter from the attorney for Petitioner referring to procaine and identifying Petitioner as the staff physician for the clinic under investigation; and an affidavit from an investigator who had attempted to make an appointment to see a doctor at the clinic. The information noted in the investigative report contained alleged admissions made by Petitioner to the investigator. The purported admissions connected Petitioner to the Fountain of Life Medical Centers and the dispensing of the substance, procaine. The investigative file did not contain information as to whether procaine is a legend drug, the identity of any person who had allegedly received the substance from the Petitioner, copies of any medical records related to the dispensing of the substance, or any confirmation that the dispensing of the substance in the manner alleged, if true, would fall below the prevailing standard of practice observed by the medical community. The investigation conducted in this case was inadequate to fully clarify the factual issues prior to the probable cause hearing. The materials submitted to the probable cause panel did, however, create a reasonable basis for the panel's determination for reasons hereinafter discussed in the Conclusion of Law. Counsel for the Department was not present at the probable cause meeting during the discussion of the Petitioner's case. Legal opinions regarding the sufficiency of the factual materials or admissibility of the evidence related to the claims were not sought by the panel nor rendered unsolicited by the counsel for the Board (who was present).
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: On June 27, 1977, respondent was charged by Information with committing the felony of leaving the scene of an accident on February 24, 1977. The accident resulted in injuries to a seventy-nine (79) year old woman, Grace Heck, who died nine (9) days later as a consequence of those injuries. Respondent pled nolo contendere to that charge and, on November 15, 1977, Judge Thomas M Coker, Jr, entered an order withholding adjudication of guilt and placing respondent on probation for a period of three (3) years, with the specific condition, among nine others, that he pay restitution for the medical expenses of the accident victim. The term of probation was later modified to one year to conform to the law. On or about July 10, 1978, respondent's probation officer filed an Affidavit of Violation of Probation stating nine violations of the terms of respondent's probation. These violations included failure to submit required reports and pay costs for supervision, failure to make restitution for the accident victim's medical expenses, carrying a concealed firearm, operating a motor vehicle on two occasions while his license was suspended, careless driving, and failure to reduce the speed of his automobile resulting in the colliding with and subsequent death of a pedestrian, John Kelly Wilkens. Effective July 13, 1978, Judge Coker revoked respondent's probation imposed for the offense of leaving the scene of an accident and sentenced respondent to one year in the county jail. Pursuant to a motion for mitigation, Judge Coker on August 18, 1978, set aside the order of adjudication of guilt and the one year sentence, and ordered that respondent be placed on a new probation for a period of one year. The original terms of probation were imposed, along with the conditions that respondent not resume the practice of medicine until an examining board determined his fitness and that he submit to a psychiatric evaluation and treatment, if required. On or about July 14, 1978, another Information was filed against respondent for the third degree felony offense of carrying a concealed weapon. After a plea of nolo contendere, adjudication of guilt was withheld and respondent was placed on probation for a period of five years by Judge Coker on January 24, 1979. Independent evidence was adduced by the petitioner with respect to both the hit-and-run accident and the carrying a concealed firearm charge. A passenger in respondent's car on February 24, 1977, testified in her deposition that respondent was driving his car, ran a red light in Fort Lauderdale and collided with a turning car containing two elderly persons. Respondent immediately left the accident scene, drove to a closed service station and stayed there for a few minutes, then drove to a school parking lot and left the car there. The deponent and respondent then walked to respondent's home, picked up another car and drove to West Palm Beach where respondent played tennis. Two officers with the Fort Lauderdale Police Department testified that their investigation of the February 24, 1977, accident confirmed that respondent was the driver of the hit-and-run vehicle. The officer who arrested respondent for carrying a concealed weapon testified by way of deposition that in June of 1978, she found respondent in his car with a fully loaded and cocked automatic weapon on the floor and live ammunition matching the weapon in his pocket. Respondent has not reported to his probation officer since October of 1979. An Affidavit of Violation of Probation has been filed against the respondent and respondent is presently the subject of an arrest warrant. His present whereabouts are unknown to his probation officer and he is considered a fugitive from justice. At the request of Judge Coker, Dr. Arnold H. Eichert, a psychiatrist, examined respondent on September 11, 1979, It was Dr. Eichert's opinion that respondent suffered from paranoid schizophrenia, Dr. Eichert seriously doubted respondent's ability to practice medicine at that time. Inasmuch as respondent had violated his probation and failed to appear at this hearing, Dr. Eichert opined that such conduct and poor judgment was consistent with his earlier diagnosis that respondent would be unable to practice medicine with reasonable skill and safety to patients. Respondent was expelled from the Broward County Medical Association on July 7, 1977, for the reason that his medical practice was detrimental to the profession, his patients or the community. No appeal was taken from this action. On November 10, 1977, respondent's medical staff privileges at Plantation General Hospital were suspended for his lack of attendance at general staff and departmental meetings. On September 30, 1977, the State Committee on Peer Medical Utilization Review (PMUR), which analyses physician treatment of Medicare patients for Blue Shield, found that respondent was guilty of "maximal overutilization of office visits, injections and laboratory procedures." This finding was made after a review of the medical records of approximately forty-five (45) of respondent's patients during the 1974 year. The charts were reviewed by Blue Shield, the Florida Medical Foundation, Inc. and a county peer review committee. Statistically, a review of respondent's patient charts illustrated that respondent was far beyond the utilization screening parameters as compared to other physicians in the Broward County area engaged in general practice. Specifically, the norm for visit days per patient for physicians doing general practice in the area was five days. The respondent's records indicated eight visit days per patient, or sixty percent over the screening parameter. The average number of injections per patient was 2.44. Respondent's injections per patient amounted to 17.7, or 620.08 percent over the parameter. Respondent's laboratory procedures per patient per year were 6.24, while the screening parameter was 4.96, representing 25.81 percent overutilization. By way of deposition, Dr. Frank Hodnette, Chairman of the State Committee on PMUR, testified that such statistics denote that respondent was "way out of bounds as far as his utilization of the medicare benefits as related to . . . the area of office visits, injections and laboratory work." After reviewing respondent's patient's medical charts, the various reviewing committees further concluded that respondent's practice deviated from the standard of acceptable daily practice and was not consistent with what is considered as standard good care of medical practice. A member of the Broward County Medical Association's PMUR Committee that reviewed respondent's records testified at the hearing as an expert in family and general practice. Dr. Nancy La Fuente reviewed several medical charts and found no medical justification for certain injections, multiple injections of the same substance, and an overall gross abuse of injections, particularly of vitamins. Dr. La Fuente concluded that respondent's practice significantly deviated from the standard of acceptable and prevailing medical practice in his area of expertise in Broward County.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent be found guilty of violating Section 458.1201(1)(c), (m), (n) and (p) and that respondent's license to practice medicine in the State of Florida be revoked. Respectfully submitted and entered this 6th day of June, 1980, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: William B. Wiley McFarlain, Bobo, Sternstein, Wiley and Cassedy, P.A. 666 Lewis State Bank Building Tallahassee, Florida 32301 Alfred E. Johnson, Esquire 3443 Hancock Bridge Parkway North Ft. Myers, Florida 33903 Nancy Whittenberg, Secretary Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Mailed to Stephen M. Niesen, M. D. to the three addresses indicated below: 1940 South Ocean Drive Hemisphere's Apartments No. 8-P Hallandale, Florida 33309 % Probation Department Broward County Courthouse Fort Lauderdale, Florida 33301 Post Office Box 6372 Fort Lauderdale, Florida 33310
