Findings Of Fact Dr. Gans is a chiropractor licensed in Florida on the basis of examination. Dr. Gans prepared and filed an application for examination and licensure with the Florida State Board of Chiropractic Examiners. Dr. Gans answered the question on the application, "Do you have a chiropractic license in any state?" by stating: "Ohio - Mechanotherapy." The Ohio authorities recognized several professions whose functions would be included under the practice of chiropractic in Florida. Mechanotherapy generally would be limited to the practice of manipulation only. Dr. Gans was licensed in Ohio as a mechanotherapist. Dr. Gans answered the question on the application, "Have you ever been refused licensure in any state?" by stating, "No." Dr. Gans had applied for, taken, and failed the Ohio chiropractic examination whereupon he was not issued a license as a chiropractor by the State of Ohio. Dr. Gans was eligible to reapply to take the Ohio examination. At the time of his application to Florida, Dr. Gans had appealed the determination by the Ohio authorities that he had failed the Ohio examination.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida State Board of Chiropractic Examiners revoke the license of Ray E. Gans. DONE AND ORDERED this 2nd day of October, 1978 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John R. Sutton, Esquire 250 Bird Road, Suite 310 Coral Gables, Florida 33146 Paul Lambert, Esquire 1311 Executive Center Drive Tallahassee, Florida 32301 C. A. Hartley, Director Florida State Board of Chiropractic Examiners Suite 202, Building B 6501 Arlington Expressway Jacksonville, Florida 32211
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 2nd 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 2nd day of March, 1998. 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 in the case is whether the allegations set forth in the Amended Administrative Complaint filed against the Respondent are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Respondent is a Florida-licensed registered nurse, holding license number RN 2061632. At all times material to this case, the Respondent resided with her daughter in an unidentified city in Massachusetts. In February 2001, the Respondent sought employment at the Pleasant Manor Health and Rehabilitation Center ("Pleasant Manor"), a facility located in Attleboro, Massachusetts. As part of the employment application process, the Respondent was required to submit a urine sample to a Pleasant Manor employee. The evidence fails to establish that the procedure utilized by the Pleasant Manor employee in collecting the urine specimen was sufficient to preclude contamination of the specimen. Prior to the urine collection procedure, the Pleasant Manor employee did not require that the Respondent wash her hands. The Respondent was taken into a restroom to provide the specimen. The Pleasant Manor employee waited outside the restroom while the Respondent collected the urine sample. The water in the toilet bowl was clear. Hot and cold running water was available in the restroom sink. After the sample was taken, the Respondent remained with the Pleasant Manor employee while the sample was sealed and packaged for transportation to the testing lab. The urine specimen was submitted to a LabCorp testing facility in North Carolina for analysis. The initial LabCorp test on the Respondent's urine specimen produced results indicating the presence of cannabinoids and opiates. The Respondent's urine specimen was subjected to confirmation testing and returned a test result of 31 ng/mL for cannabinoids and 920 ng/mL for opiates/codeine. The evidence establishes that the LabCorp tests were performed according to appropriate standards and practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Nursing, enter a Final Order dismissing the Amended Administrative Complaint filed against Respondent Deborah Ketz. DONE AND ENTERED this 5th day of September, 2002, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 2002. COPIES FURNISHED: Alexis J. DeCaprio, Esquire Division of Medical Quality Assurance Bureau of Health Care Practitioner Regulation Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265 Suzanne H. Suarez, Esquire 447 3rd Avenue, North Suite 404 St. Petersburg, Florida 33701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dan Coble, R.N., Ph.D., C.N.A.A. C, B.C. Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 Reginald D. Dixon, Esquire Division of Medical Quality Assurance Bureau of Health Care Practitioner Regulation Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265
Findings Of Fact In early August of 1992, petitioner Howard D. Kline began work as a waiter for respondent, making at least $189 per week. Fearing he might be infected, he gave blood samples on September 21, 1993, at the Bay County Public Health Unit and asked that they be tested for human immunodeficiency virus (HIV). The samples were sent to Jacksonville, and one was forwarded to the Center for Disease Control in Atlanta, Georgia. On September 28, 1992, a report of diagnostic testing done on petitioner's blood in Jacksonville, Petitioner's Exhibit No. 1, was mailed to the health department in Panama City. It reached Nancy S. Nichols, who worked at the Bay County Public Health Unit, on or before October 6, 1992. She had seen the results by the time she talked to Mr. Kline on October 6, 1992, and advised him that he had tested positive. The following day Mr. Kline stopped by the Four Winds restaurant to speak to Barbara Zaleski; wife of (one of) respondent's owners (and possibly herself a co-owner.) Although the restaurant had both a manager and an assistant manager, Ms. Zaleski had authority to hire and fire staff. When Mr. Kline told her of his affliction, she wept sympathetically, then told him he could no longer work at the restaurant because it was bad for business. On October 8, 1993, word reached Mrs. Nichols that the diagnostic testing of petitioner's blood done in Atlanta confirmed the earlier, positive diagnosis. Approximately a week later petitioner stopped by the restaurant to pick up his final paycheck. Two weeks elapsed after his discharge before he found another job. During the two-week hiatus, he lost wages totalling $378. The restaurant hired a waitress to take petitioner's place. The evidence did not reveal her status as regards human immunodeficiency virus. Respondent employed (a) cook(s) and (a) bookkeeper(s) as well as serving staff, an assistant manager and a manager, until it closed, more than three months after petitioner's discharge. The total number of respondent's employees was not proven, nor the total number of people respondent employed at any one time. Services of an attorney worth $4,700 have reasonably been required in the presentation of this claim, but these services would, except for $125 have also been necessary for the presentation of the same claim in court.
Recommendation It is, accordingly, RECOMMENDED: That the FCHR dismiss the petition, without prejudice to petitioner's proceeding in circuit court on any claim not predicated on the Florida Civil Rights Act of 1992, Sections 760.01-760.11 and 509.092, Florida Statutes (1993). DONE AND ENTERED this 14th day of December, 1993, in Tallahassee, Florida. ROBERT T. BENTON, II 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 14th day of December, 1993. COPIES FURNISHED: David L. Jernigan 3020 Kingswood Drive Panama City, Florida 32405 Nancy L. Jones Post Office Box 2062 Panama City, Florida 32401 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue presented is whether Respondent is guilty of the allegations set forth in the Administrative Complaint, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been a physician licensed to practice in the State of Florida, having been issued license number ME 0020248. Respondent is a board- certified pathologist who completed a residency in obstetrics and gynecology in Venezuela and practiced in the field of obstetrics and gynecology in South America for almost five years before coming to the United States. On April 20, 1991, patient J. B., a 27-year-old female, came to A Woman's Care, where Respondent was then employed, for the purpose of terminating her pregnancy. She indicated on a patient history form that the date of her last menstrual period was January 30, 199l. According to the medical records from A Woman's Care, she did not express any uncertainty or equivocation with respect to that date. One method of determining gestational age is based on calculating from the last menstrual period, assuming that the patient's history is reasonably reliable. With a history of a last menstrual period on January 30, 1991, the gestational age of the fetus on April 20, 1991, based upon a calculation by dates, was seven weeks. After obtaining a history from the patient with respect to the date of the last menstrual period, the physician needs to perform a bi-manual examination of the patient in order to assess the size of the uterus and to confirm the history given by the patient. Although the bi-manual examination is a reasonably reliable method of assessing the stage of pregnancy, it is a subjective examination and can sometimes be difficult. There is an acknowledged inaccuracy with respect to that clinical evaluation. The most accurate method of determining the gestational age of a fetus is through ultrasound examination. An ultrasound is performed when there is uncertainty as to the gestational age, such as when the patient does not know the date of her last menstrual period or when there is inconsistency between the patient's disclosed date and the physician's bi-manual examination. There is a general correlation between the size of the uterus in centimeters on bi-manual examination and gestational age in weeks. It is important to determine the gestational age of the fetus before performing a termination of pregnancy because the gestational age is the determining factor in deciding the size of the instruments to be used in the procedure and the amount of tissue to be removed. Respondent performed a bi-manual examination of the patient and recorded that his examination revealed a uterus consistent with an approximately seven-week gestation. Because the gestational age by dates and the results of the bi-manual examination both indicated a seven-week pregnancy and were consistent, Respondent did not order an ultrasound examination for the purpose of determining gestational age. On April 20, 1991, Respondent performed a termination of pregnancy on patient J. B. after the patient was informed of the possible risks of the procedure and after the patient signed a Patient Informed Consent Form. That Form detailed the possible risks, including infection and incomplete termination. Based upon the patient's history and the bi-manual examination and his conclusion that the patient was approximately seven-weeks pregnant, Respondent used an 8 mm Vacurette to terminate patient J. B.'s pregnancy. An 8 mm Vacurette is an appropriately-sized device to terminate a seven-week pregnancy. After completing the procedure, Respondent submitted the tissue obtained to a pathologist who determined that three grams of tissue had been submitted, consisting of products of conception and chorionic villi. The pathology report revealed what would reasonably be expected as a result of the termination of a seven-week pregnancy. After the procedure, the patient was given written instructions for her care and was discharged from A Woman's Care at 10:35 a.m. On April 21, 1991, at approximately 6:30 a.m., the patient's grandmother telephoned A Woman's Care to advise that the patient was complaining of dizziness and pain. The patient was advised to take Tylenol and call back if she continued to feel sick. At approximately 7:30 a.m., the patient's grandmother called again to advise that the patient was going to go to the hospital. On April 21, 1991, at 1:25 p.m., patient J. B. arrived at the Emergency Room at North Shore Medical Center with a temperature of 104.3 degrees, an elevated white blood cell count, chills, lower abdominal pain, and spotting. The patient was seen during her North Shore admission by Dr. Ramon Hechavarria, a physician certified in obstetrics and gynecology, and by Dr. Tomas Lopez, a general surgeon. Dr. Lopez noted in his consultation report that a pelvic bi-manual examination that he performed on April 21 showed an enlarged uterus corresponding to approximately 11-12 weeks' gestation. An ultrasound examination done on April 21 revealed a uterus measuring 11.0 x 7.8 x 7.8 centimeters and a viable intra- uterine pregnancy which was estimated by the radiologist to be 13-14 weeks' gestational age. On April 22, the patient underwent termination of her pregnancy by Dr. Hechavarria who noted in his operative report that both the pelvic ultrasound and a bi-manual examination revealed an intra-uterine pregnancy of about 11 weeks with a live fetus. An ultrasound performed intra-operatively confirmed that all fetal tissue had been removed and that there were no perforations. Infection and an incomplete termination are two of the recognized complications resulting from terminations of pregnancy. The fact that a patient suffers an infection or an incomplete termination does not, per se, indicate any negligence on the part of the physician. Respondent did not fall below the recognized standard of care by failing to perform an ultrasound on patient J. B. His examination revealed a gestational age consistent with the date identified by the patient as the date of her last menstrual period. Accordingly, there was no need to perform an ultrasound. Respondent did not fall below the recognized standard of care by misjudging the gestational age of the fetus. It is not uncommon for a physician to misjudge the length of gestation by several weeks. For example, Drs. Lopez and Hechavarria concluded the fetus had a gestational age of 11 weeks; yet, the ultrasound reported 13-14 weeks. Respondent did not fall below the recognized standard of care by using the wrong size of equipment to perform the termination of pregnancy. He used the proper equipment consistent with his judgment as to the length of gestation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a Final Order be entered finding Respondent not guilty of the allegations and dismissing the Administrative Complaint filed against him in this cause. DONE AND ENTERED this 25th day of July, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1997. COPIES FURNISHED: Hugh R. Brown, Esquire Agency for Health Care Administration Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jonathon P. Lynn, Esquire Stephens, Lynn, Klein & McNicholas, P.A. Two Datran Center, Penthouse II 9130 South Dadeland Boulevard Miami, Florida 33156 Dr. Marm Harris, Executive Director Board of Medicine Agency for Health Care Administration Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309
The Issue The issue in these cases is whether disciplinary action should be taken against Respondent's license to practice medicine, No. ME 0046170, based upon the alleged violations of Section 458.331(1), Florida Statutes, set forth in the Administrative Complaint dated April 6, 1989, (the "First Administrative Complaint") which has been assigned DOAH Case No. 89-3723 and/or the Administrative Complaint dated August 16, 1990, (the "Second Administrative Complaint") which has been assigned DOAH Case No. 91-3864.
Findings Of Fact Based on the evidence adduced at the hearings on October 3, 1990, and March 10, 1992, and the entire record in this proceeding, the following findings of fact are made: Respondent is, and has been at all times material hereto, a licensed physician, having been issued license number ME 0046170 by the State of Florida. Respondent was initially licensed to practice medicine in the State of Florida in approximately April of 1985. No evidence was presented of any prior disciplinary action against Respondent. Respondent's last known address is 10611 N.E. 11th Avenue, Miami Shores, Florida 33138. Sometime around 1986, Respondent became affiliated with EMSA which is an emergency room provider. EMSA contracts with hospitals to staff emergency rooms. Thus, Respondent has been working as an emergency room physician since 1986. The evidence did not establish the extent of Respondent's obligations with EMSA since 1986. As discussed in more detail below, since 1986, Respondent has also been affiliated with at least two other entities, the Institute of Specialized Medicine and the Immunology Allergy Institute, Inc. Facts Regarding the First Administrative Complaint Respondent was employed as a salaried employee of the Institute of Specialized Medicine (the "Institute") for at least several months during the year 1987. Although the evidence regarding Respondent's affiliation with EMSA was not entirely clear, it appears that he retained his affiliation with that company during the time that he worked at the Institute. In June of 1987, Respondent was associated with the Institute. In June of 1987, J.P. was a 36 year old female who saw an advertisement in a newspaper for the Institute of Specialized Medicine. That advertisement suggested that weight loss could be accomplished through adjusting a person's metabolism. J.P. called the Institute and scheduled an appointment for June 30, 1987. J.P. had been seriously overweight all of her adult life and had previously tried almost every possible method of weight loss. Shortly before her visit to the Institute, J.P. had been able to lose 80 pounds by diet and exercise alone. On June 30, 1987, J.P. visited the Institute and was told that she needed to provide certain information to determine her eligibility for the Institute's program. J.P. was advised that the Institute charged a $925 fee for testing and consultation. That fee included her first two visits, after which she was to be charged $40 per visit. The Institute's staff told J.P. that she had to pay $285 and that the rest would be billed to her insurance company. J.P. paid $285 on this first visit. On her first visit, J.P. filled out various questionnaires regarding her health, background and other general information. She was given a "blood test," a spirometric test, an EKG, and she provided a urine sample. J.P. did not see a physician or dietician during this visit. On July 6, 1987, J.P. returned to the Institute and was seen for about ten minutes by Respondent, who listened to her heart and lungs. Her height, weight, blood pressure, and pulse rate were noted, but no other physical examination was performed and Respondent did not inquire regarding any of the matters disclosed in the questionnaire filled out by J.P. during her first visit. During the July 6, 1987 visit, Respondent informed J.P. of his interpretation of her test results. He told J.P. that her tests showed she had an irregular thyroid, that her metabolism was below normal range, and that her body retained fluid. In his records of J.P.'s July 6, 1987 visit, Respondent diagnosed J.P. as having "Euthyroid Sick Syndrome." Euthyroid Sick Syndrome is a condition which may arise in a patient seriously ill from another cause. In such a situation, there are abnormal findings in blood tests for thyroid function, but these findings do not indicate the true thyroid status which is normal. The evidence established that this was an incorrect diagnosis for J.P. based upon the test results and history provided. Respondent did not provide a cogent explanation for his written diagnosis of Euthyroid Sick Syndrome nor did he explain the verbal diagnosis given to J.P. Respondent's records do not include the results of the spirometric test or the EKG. In addition, the urinalysis was incomplete and, while the doctor's notes and billing records reflect a chest x-ray was taken, there is no evidence of such an x-ray in the records. The results of J.P.'s blood tests reflect all normal values with the exception of a slightly low "total iron." At the conclusion of the July 6, 1987 visit, Respondent prescribed Cytomel, 25 micrograms BID, and Maxzide for J.P. No directions were given regarding the administration of Maxzide. Cytomel is a prescription drug containing the active ingredient of the secretions of the thyroid gland. Cytomel is used to replace the hormone in cases of thyroid underactivity (hypothyroidism). There is no indication from the medical records that J.P. was suffering from Euthyroid Sick Syndrome, that her thyroid was malfunctioning, that her metabolism was below normal, or that she required any hormonal replacement therapy. Respondent now admits that the test results indicate J.P. was not hypothyroid. Respondent claims that if he had actually believed that the patient had been hypothyroid, the dosage prescribed would have been approximately three times greater. He contends that he prescribed Cytomel to increase oxygen consumption. To justify his prescription of Cytomel, Respondent cited to two medical texts which he claims were in wide circulation in 1987. He says those texts support his prescription of Thyroid hormone to encourage weight reduction. Only one of the two cited references even marginally supports Respondent's contention. In any event, the more persuasive evidence established that, before the advent of thyroid testing (approximately twenty years ago), Cytomel was occasionally used in an attempt to encourage weight loss in patients. However, the prescription of Cytomel for weight loss in 1987 was below the standard of care expected of a reasonably prudent physician under similar conditions and circumstances. Respondent also attempted to justify his prescription of Cytomel by claiming that J.P. had advised him that she had previously been taking a thyroid supplement. Respondent contends that some patients who stop taking thyroid supplements have a "rebound effect where their metabolic rate decreases." During her testimony, J.P. denied having ever been on thyroid medication. The questionnaires filled out by J.P. during her first visit to the Institute do not reflect that she had ever taken thyroid medication in the past. Furthermore, there is no notation in the medical records indicating that J.P. had been on thyroid medication in the past. Respondent's testimony that J.P. advised him that she had previously been on thyroid supplements but was no longer taking them is not credited. Maxzide is a prescription drug, a diuretic appropriate for patients with high blood pressure. Maxzide should not be used as initial therapy for fluid retention. Maxzide can have deleterious effects on a patient and should not be used in a weight reduction program unless other reasons indicating its use are present. Respondent's medical records do not justify the prescription of Maxzide to J.P. There is no indication that the patient had high blood pressure. Furthermore, J.P. denied having any previous problems with fluid retention and no such problems are noted on the medical history that she filled out. While Respondent noted "++edema" as part of his examination on July 6, 1987, the notation is not consistent with Respondent's other notes of his exam or J.P.'s testimony regarding her condition. Moreover, J.P.'s weight loss of only three pounds between July 6 and July 30, 1987, indicates that she had no edema on July 6, 1987. During the July 6, 1987 visit, J.P. saw the Dietitian at the Institute of Specialized Medicine for about 20 minutes. The only thing the Dietitian did was to give J.P. a 1,000 calorie per day diet which she was told to follow. On July 30, 1987, J.P. returned to the Institute to see Respondent because she thought she was suffering nausea from the effects of the medications Cytomel and Maxzide. Respondent did not document in his notes any treatment for her nausea. J.P.'s health insurance claim form, submitted under Respondent's signature, reflects a diagnosis of "Euthyroidism" and a corresponding insurance code number of 244.9. Euthyroidism means normal thyroid function. An insurance company will not pay for a diagnosis of a normal condition. Insurance code number 244.9 indicates a condition of hypothyroidism or thyroid insufficiency which Patient J.P. did not have. The health insurance claim form submitted under Respondent's signature reflects overlapping billings for a hemogram and WBC, includes charges for an x- ray and spirometry of which there is no record, and contains a coded diagnosis of Hypothyroidism which conflicts with the results of the tests performed on J.P. and also conflicts with the Respondent's recorded diagnosis of Euthyroid Sick Syndrome. The insurance claim form also includes charges for a complete history and physical. After J.P. filed a complaint with Petitioner, Respondent attempted to justify this billing by telling Petitioner's investigator that he gave J.P. a complete physical examination and a "full workup". However, the evidence established that Respondent did not perform a complete physical examination of J.P. Respondent did not examine J.P.'s breasts, recommend a mammogram, perform or refer J.P. for a gynecological examination, examine her throat, eyes, ears, or abdomen; address her familial history of diabetes, kidney disease, hypertension or obesity; question her about her listed allergies, past anemia, abnormal stomach x-rays, or changing moles; consider her serious depressions and emotional problems; interpret her EKG; or address the basic causes of her obesity. Respondent contends that he did not handle the billing for the Institute and did not himself submit any diagnosis to the insurance carrier. In addition, he claims that he has subsequently learned that the Institute forged his name on some insurance documents. These contentions do not provide a defense to the charges in this case. It is clear that the billings to the insurance company were submitted under Respondent's signature. There is no evidence that the health claim form in this case was forged. The insurance company directed an inquiry to Respondent regarding his diagnosis of J.P. and Respondent did little or nothing to clarify the situation. Furthermore, when J.P. complained to Respondent about the treatment and costs, there is no indication that Respondent took any steps to investigate the situation or correct the problems. In the original billings submitted to J.P.'s insurance company, the Institute sought payment of $925 for the treatment and tests rendered to J.P., even though the patient had already paid $285 of that agreed upon fee. Respondent's records reflect that ultimately the insurance company paid $670 for the services rendered to J.P. Respondent's treatment of J.P. failed to meet that level of care, skill and treatment expected of a reasonably prudent similar physician under similar conditions and circumstances because Respondent inappropriately prescribed Cytomel and Maxzide to J.P. when the need for those drugs was not indicated by the results of the tests performed and because his final diagnosis of "Euthyroid Sick Syndrome" was incorrect and unsupported by any tests or physical findings. Respondent failed to keep written medical records justifying his course of treatment of J.P. because the records (1) do not justify his diagnosis of Euthyroid Sick Syndrome, (2) do not justify his prescription of Cytomel for the patient who had no evidence or history of hypothyroidism, (3) do not justify his prescription of Maxzide for the patient who had no fluid retention and who presented with normal findings other than her obesity, (4) do not justify the extensive and inappropriate tests performed, (5) do not appropriately reflect J.P.'s EKG, do not report on results of her x-ray (if it was made) or spirometry, and (6) do not indicate that Respondent either advised or treated J.P. on July 30, 1987, when she complained that the medications were making her nauseous. By prescribing medications for J.P. which were medically unnecessary, by filing conflicting diagnoses, by charging for a complete physical examination when one was not performed, and by signing off on duplicative billing on J.P.'s health insurance claim form, Respondent has made deceptive, untrue and/or fraudulent representations in the practice of medicine. Facts Regarding the Second Administrative Complaint Respondent quit working at the Institute in approximately November of 1987. As noted in the Preliminary Statement above, Respondent was indicted in October of 1988 in connection with his affiliation with the Institute of Specialized Medicine. While the circumstances and facts surrounding that indictment were not fully explained at the hearing in this cause, it appears that Respondent was indicted with several other individuals for allegedly participating in a scheme to defraud insurance companies by billing for tests and treatments that were unnecessary or unrelated to patients' true conditions. The indictment was pending through out the time of the incidents alleged in the Second Administrative Complaint. Respondent ultimately entered into a pretrial diversion program as a result of those charges. Sometime in 1988, Respondent became associated with the Immunology Allergy Institute, Inc., (the "Allergy Clinic"). Respondent claims that he was seeking to establish a private family practice and associated with the Allergy Clinic as part of an office sharing arrangement. The Allergy Clinic was owned by Frank Seedarnee and his ex-wife. Respondent contends that in return for office space, he was to serve as the "medical director" for the office and would be responsible for examining and diagnosing all medical problems and prescribing necessary controlled substances. Respondent contends that he never discussed cases with Seedarnee and did not rely on any recommendations from him because Seedarnee was not a doctor. Respondent further contends that Seedarnee's only function was to recommend diet changes, vitamins, or other products to help patients keep their homes free from allergies. However, the evidence presented in this case established that the Allergy Clinic did not always function in this manner, at least with respect to the patient S.L. and her son A.L. In March of 1989, S.L. was experiencing sinus problems and had a cough. In addition her son, age 10 months at the time, had been coughing for a few months. S.L. had previously been diagnosed as having allergies. S.L. was told of the Allergy Clinic by a friend who recommended "Dr. Seedarnee" as a allergist. She assumed from this conversation that Dr. Seedarnee was a medical doctor. She made an appointment at the Allergy Clinic for herself and her son for March 30, 1989. On March 30, 1989, S.L. arrived at the Allergy Clinic with her son as scheduled. She did not see a sign at the Allergy Clinic or any indication as to who the doctors were. During her initial visit, S.L. filled out an extensive health questionnaire form on herself and her son, A.L. S.L. and her son were escorted by a woman who appeared to be a nurse into an office. The nurse stated "Dr. Seedarnee will see you now." This nurse also mentioned that Respondent was not in because he was out on an emergency. The office contained a large microscope and a TV-like screen. A man in a white coat introduced himself as Dr. Seedarnee. Seedarnee reviewed S.L.'s health history forms and discussed with her the reasons why she wished to see an allergist. He told S.L. that he had developed an immune booster to help immune systems, that he would be taking blood from S.L. and A.L. so he could diagnose their problems, and that he had invented a microscope capable of evaluating the blood that same day. Seedarnee did not physically examine S.L. or A.L. or inquire if anyone else in the office had examined them. Seedarnee ordered a nurse to draw blood from S.L. and A.L. The blood was drawn as requested without question or surprise by the nurse. S.L. also provided a urine sample at the nurse's request. After the samples were obtained, S.L. and A.L. returned to Seedarnee's office where an enlarged picture of two slides of blood were shown to S.L. on the TV-like screen. Seedarnee took photographs of the blood slides and gave them to S.L. Those photographs were introduced as Petitioner's Exhibits 2 and 3. Seedarnee told S.L. that the white cell in the middle of her blood slide was an "allergy cell" and the other figures in the picture were iron- deficient cells. He also told her that she had a "low immune system." Seedarnee told S.L. that A.L.'s blood slide had clumped-together cells because he had a sluggish immune system. Seedarnee indicated that his conclusions were based on the blood pictures. He recommended that S.L. receive one of his "immune boosters" once a month for the next few months and one yearly thereafter. He also indicated that A.L. needed an immune booster and should get one yearly thereafter. Seedarnee specifically used the words "diagnosis" and "treatment" and stated that he was going to run further tests in order to make his final diagnosis. Seedarnee's statements to S.L. on March 30 constituted a diagnosis and the practice of medicine. The evidence presented at the hearing established that the diagnosis made by Seedarnee on March 30 could not validly be made on the basis of the blood slides. Moreover, the pictures of S.L.'s and A.L.'s blood appear normal. The "allergy cell" was simply a white blood cell and the clumping of A.L.'s blood was due to an artifact. S.L. did not see Respondent or any other person she thought was a physician on the March 30 visit. At this point, she still believed Seedarnee to be a physician. S.L. was told that she was required to pay 20% of the "total cost" for the treatment and her insurance company was to pay the remaining 80%. At the conclusion of the March 30, 1989 visit, S.L. wrote a check to the Allergy Clinic for $371.20. On April 4, 1989, S.L. returned without her son to the Allergy Clinic. She did not bring her son because her husband was skeptical that a proper diagnosis could be made from the blood slide picture. On April 4, S.L. was taken directly to Seedarnee's office where Seedarnee reviewed with her the results from her blood test and urinalysis, told her that she was allergic to dust and had a sensitivity to milk and yeast, and suggested to her that she needed his immune booster and B-12 injections. Seedarnee also reviewed with S.L. her son's test results. He told S.L. that A.L. had no allergy problems, but, because A.L. had a low immune system, he recommended an immune booster. During the April 4 visit, S.L. asked Seedarnee where he went to school. He told her India and England and said he had a Ph.D. and worked under a physician. Until this time, S.L. believed him to be a medical doctor. The office staff at the Allergy Clinic all referred to Seedarnee as "doctor." The medical records from the Allergy Clinic for S.L. and A.L. are captioned as follows: Patient: L, S. Physician: Seedarnee/Kunen and Patient: L, A. Physician: Seedarnee/Kunen After S.L. met with Seedarnee in his office on April 4, she was given two injections by a nurse. The medical records indicate the injections were (1) B-12 and Folic Acid and (2) "URT." There was no doctor's order for these injections. At the hearing, neither Seedarnee nor Respondent could, or would, identify "URT." Seedarnee's interpretation of tests, diagnosis of allergies and development of a treatment plan for S.L. on April 4 by ordering two injections for her which were given before S.L. ever saw a physician constitute the practice of medicine. After the injections, the nurse took S.L. to an examining room. Shortly thereafter, Respondent entered and introduced himself as Dr. Kunen. He asked S.L. what Dr. Seedarnee had recommended. Thus, it is clear that Respondent was aware that the patient had already seen Seedarnee and that he knew Seedarnee had at least developed some recommendations for her treatment. It is not clear whether Respondent knew that S.L. had already been given two injections. S.L. told Respondent that Seedarnee had diagnosed her allergies and told her that she needed B-complex, an immune booster and yearly immune boosters thereafter. Respondent's only response was something to the effect of "good, fine." He said nothing more about her treatment. S.L. was with Respondent for only about five minutes. Respondent briefly examined her. He listened to her heart and lungs and checked the glands in her neck. She was fully clothed during the exam. Respondent did not review with S.L. any of the items on her health form questionnaire. He did not inquire as to any of the items noted on the form such as the antibiotics she was taking, her sensitivity to perfume, her symptoms of fatigue and/or lethargy, her complaints of pressure in her head, muscle weakness and heart palpitations, or her notations of mucus in her stool or problems with urinary frequency. Her blood pressure was never taken. She was not asked about her history of rheumatic fever. Respondent did not discuss with S.L. her allergy symptoms, what she was allergic to, her test results or why she needed an immune booster and B-complex. Respondent did not ask about A.L. and S.L. did not tell Respondent that she wanted A.L. to be tested. Respondent's medical records regarding S.L. contain one undated page of notes indicating that Respondent requested allergy testing for S.L. and that S.L. wanted her son to be tested. S.L. denies telling Respondent that she wanted her son tested. Indeed, the evidence established that S.L. and her son had already been tested the week before by Seedarnee and that S.L. told Respondent of Seedarnee's diagnosis and treatment plan. Respondent's medical records for A.L. contain the boy's birth date rather than a current date. The notation in Respondent's handwriting states "patient here for testing, will return next week." Respondent claims that he saw the son otherwise he would not have filled out this medical note on the child. S.L. claims that her son was not with her on the April 4, 1989 visit and, therefore, Respondent never saw him. S.L.'s testimony is credited. In sum, it is concluded that Respondent's notes in the medical records for S.L. and A.L. do not accurately reflect the events that occurred and were an apparent attempt to justify after the fact Seedarnee's actions and treatment. It is also concluded that Respondent never saw A.L. as a patient and that Respondent "recommended" a treatment plan for S.L. which had already been carried out. At the conclusion of her April 4 visit, S.L. wrote a check to the Allergy Clinic for $162 to cover the cost of her visit and the purchase of a product which Seedarnee had recommended and supposedly developed called Allergex. This product was supposed to be put in the laundry and used to wipe down tables, etc. to eliminate household dust. After her visit on April 4, S.L.'s suspicions were aroused. She inquired of authorities about the licensure of the Allergy Clinic (it had none) and of Respondent and Seedarnee (he had no license). Following the April 4 visit to the Allergy Clinic, S.L. went to see a Board certified allergist who questioned the treatment she received at the Institute. The allergist advised S.L. that she was allergic to items other than those Seedarnee had claimed. On May 23, 1989, S.L. wrote to Respondent elaborating on what Seedarnee had done, complaining that she was mislead to believe that Seedarnee was a physician and that Respondent had done nothing but rubber stamp Seedarnee's findings and treatment. Respondent was on notice at least from this time that Seedarnee was practicing medicine without a license. S.L. filed a complaint with the Department of Professional Regulation on June 9, 1989. During the ensuing investigation, Respondent told the Department's investigator on January 23, 1990 that Seedarnee only worked under his supervision and that Seedarnee never made recommendations to patients. These statements were made even though S.L. had told Respondent during her April 4th visit and in her letter of May 23, 1989 about Seedarnee's actions. At the hearing, Respondent disclaimed any knowledge of the "diagnosis" made by Seedarnee and/or the administration of injections to S.L. pursuant to Seedarnee's instructions. He suggests that if any such actions took place, they were contrary to the specific understandings that he had as to the procedures of the Allergy Clinic. Even if Respondent thought that he was supposed to make all diagnoses and develop all treatment plans at the Clinic, it is clear that these procedures were not followed with respect to S.L. and A.L. Moreover, it is clear that Respondent was aware of Seedarnee's activities by at least April 4, 1989. It is the physician's responsibility to formulate a treatment plan and treat a patient. Professional responsibility should be delegated only to individuals who have training and degrees to perform those tasks and non-medical personnel should not be allowed to assume functions that are to be performed by physicians. It is the physician's obligation, if he knows an unlicensed, untrained individual with whom he is working is following practices which constitute the practice of medicine, to stop that activity if possible and report it to the Department of Professional Regulation. Respondent was aware that Seedarnee was not a licensed medical doctor and was not qualified to make a diagnosis or to treat patients. Respondent never reported Seedarnee's unlicensed activity to any authority. Respondent's actions on April 4 with respect to S.L. constitute an acquiescence to Seedarnee's recommendations and treatment. Respondent contends that even if S.L. was administered the two injections discussed above, there is no evidence that those injections were controlled substances. Thus, Respondent argues there is no evidence that Seedarnee engaged in the unauthorized practice of medicine. This contention is rejected. As noted above, neither Seedarnee nor Respondent could explain what the immune booster or "URT" was. They both suggest that anything not prescribed should be considered part of a therapy program not medicine. However, the administration of an injection, particularly if not indicated by medical testing, always runs the risk of causing a reaction in a patient. The Respondent's interpretation of the practice of medicine is unduly narrow and is rejected. As discussed above, it is clear that the Clinic operations led at least one person, S.L., to believe that Seedarnee was a physician and it is clear that, with respect to at least this patient, Seedarnee interpreted test results, developed a diagnosis and directed a treatment plan. Moreover, it is clear that Respondent was made aware of these activities by at least April 4, 1989 and that he took no steps to halt or correct the situation and, indeed, that he acquiesced to it. The Allergy Clinic has been owned by Seedarnee for approximately 12 years. Seedarnee refers to the entity as a "research institute" rather than a laboratory or medical clinic. Seedarnee formulated the internal rules and procedures for the Allergy Clinic. Seedarnee's testimony on these procedures and other issues at the hearing was evasive, ambiguous and inconsistent. Seedarnee recognized that he needed a licensed physician to "approve prescribed substances and supervise techniques." However, it is clear that, at least during the time in question, the Allergy Clinic was operated in a manner that permitted him to diagnose and order vitamins and booster injections. Respondent was Medical Director of the Allergy Clinic from 1988 until at least mid-1990. Other than the matters raised in the Second Administrative Complaint and discussed above, no evidence was presented as to any other situations where Respondent acquiesced in the practice of medicine by Seedarnee. Respondent's testimony regarding his relationship with the Allergy Clinic was vague, conveniently selective and sometimes inconsistent. Respondent admits that he was hired to be Medical Director and was given office space. However, he claims that he had no obligation to Seedarnee, was not salaried (although he admits he was "loaned" money by Seedarnee, only some of which he paid back) and that he had no duties as Medical Director except "to be a good physician and see patients and to build a practice." He says he never had the need to discuss a case from a medical standpoint with Seedarnee or with other physicians there. He also says there were no staff meetings. Seedarnee's version of the relationship was quite different. Seedarnee testified that Respondent was paid a salary for his duties at the Allergy Clinic. At one point, Seedarnee claimed that the Medical Director made decisions for testing of patients on the basis of the patient's medical questionnaire. Because the allegations of the Second Administrative Complaint are limited to the treatment rendered to S.L. and her son, it is not necessary to fully explore and/or resolve the nature of Respondent's affiliation with the Allergy Clinic. That evidence established that, at least with respect to S.L. and her son, Respondent's role differed greatly from his description of the Clinic's operations. Respondent failed to report what was clearly the unauthorized practice of medicine by Seedarnee. Furthermore, by acquiescing in Seedarnee's diagnosis and treatment, Respondent unlawfully delegated professional responsibility to a person he knew to be unlicensed. Finally, Respondent's participation in the treatment of S.L. and her son constitutes the employment of a trick or scheme in the practice of medicine.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order finding Respondent guilty of violating Sections 458.331(1)(k), (m) and (t), Florida Statutes as alleged in the First Administrative Complaint and finding Respondent guilty of violating Sections 458.331(e), (k) and (w), Florida Statutes as alleged in the Second Administrative Complaint. As punishment therefore, Respondent should be (1) reprimanded, (2) fined $15,000, (3) suspended from the practice of medicine for five years, two years of which should be suspended if Respondent successfully completes Board approved continuing medical education courses, and (4) thereafter, Respondent should be placed on probation for a period of three years, the terms and conditions of which should be set by the Board of Medicine. It is recommended that one condition of probation should be a limitation on Respondent's establishment or participation in a private office practice. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of September, 1992. J. STEPHEN MENTON 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 16th day of September, 1992. APPENDIX Case Numbers 89-3723 and 91-3864 Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. The Petitioner's Submittal with Respect to the October 3, 1990 Hearing Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1. Adopted in substance in Findings of Fact 1. 2. Adopted in substance in Findings of Fact 6. 3. Adopted in substance in Findings of Fact 4. 4. Adopted and 8. in substance in Findings of Fact 7 5. Adopted in substance in Findings of Fact 9. 6. Adopted 10. in substance in Findings of Fact 7. Adopted 14. in substance in Findings of Fact The first sentence is adopted in substance in Findings of Fact 15. The second sentence is subordinate to Findings of Fact 12. Subordinate to Findings of Fact 20. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 13. Adopted in substance in Findings of Fact 16. Adopted in substance in Findings of Fact 21. Adopted in substance in Findings of Fact 22. Adopted in substance in Findings of Fact 23. Rejected as unnecessary. Subordinate to Findings of Fact 26. Adopted in substance in Findings of Fact 26. Adopted in substance in Findings of Fact 29. Adopted in substance in Findings of Fact 30. Adopted in substance in Findings of Fact 24. Adopted in substance in Findings of Fact 24. Adopted in substance in Findings of Fact 24. Adopted in substance in Findings of Fact 25. Adopted in substance in Findings of Fact 31. The Petitioner's Supplemental Proposals regarding the First Administrative Complaint Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Subordinate to Findings of Fact 27. Adopted in substance in Findings of Fact 19. Adopted in substance in Findings of Fact 19. Adopted in substance in Findings of Fact 21. Subordinate to Findings of Fact 20 and 21. Adopted in substance in Findings of Fact 12. Rejected as unnecessary. Rejected as unnecessary. This subject matter is addressed in Findings of Fact 11. The Petitioner's Proposed Findings regarding the Second Administrative Complaint Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Rejected as unnecessary. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 36 and 38. Adopted in substance in Findings of Fact 37. Adopted in substance in Findings of Fact 38. Adopted in substance in Findings of Fact 39. Adopted in substance in Findings of Fact 40. Adopted in substance in Findings of Fact 41. Adopted in substance in Findings of Fact 42. Adopted in substance in Findings of Fact 43. Adopted in substance in Findings of Fact 44. Adopted in substance in Findings of Fact 45. Adopted in substance in Findings of Fact 46. Adopted in substance in Findings of Fact 47. Adopted in substance in Findings of Fact 48. Adopted in substance in Findings of Fact 49. Adopted in substance in Findings of Fact 50. Adopted in substance in Findings of Fact 52. Adopted in substance in Findings of Fact 53. Adopted in substance in Findings of Fact 53. Adopted in substance in Findings of Fact 53. Adopted in substance in Findings of Fact 56. Adopted in substance in Findings of Fact 54. Adopted in substance in Findings of Fact 55. Adopted in substance in Findings of Fact 57. Adopted in substance in Findings of Fact 58. Adopted in substance in Findings of Fact 58. Adopted in substance in Findings of Fact 58. Adopted in substance in Findings of Fact 59. Adopted in substance in Findings of Fact 59. Adopted in substance in Findings of Fact 59 and 61. Adopted in substance in Findings of Fact 62. Adopted in substance in Findings of Fact 63. Subordinate to Findings of Fact 64. Subordinate to Findings of Fact 66 and 67. Adopted in substance in Findings of Fact 68. Adopted in substance in Findings of Fact 69. Adopted in substance in Findings of Fact 69. Rejected as unnecessary. Adopted in substance in Findings of Fact 49. Adopted in substance in Findings of Fact 49. Adopted in substance in Findings of Fact 47. Adopted in substance in Findings of Fact 57. Adopted in substance in Findings of Fact 76. Subordinate to Findings of Fact 74. Adopted in substance in Findings of Fact 71. Adopted in substance in Findings of Fact 73. Adopted in substance in Findings of Fact 72. Adopted in substance in Findings of Fact 73. Adopted in substance in Findings of Fact 76. Subordinate to Findings of Fact 77. Subordinate to Findings of Fact 76 and 77. Subordinate to Findings of Fact 79 and 80. The Respondent's Proposed Findings of Fact regarding the Second Administrative Complaint Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Rejected as unnecessary. The first and the third sentences are adopted in substance in Findings of Fact 1. The second sentence is subordinate to Findings of Fact 3. Subordinate to Findings of Fact 33-35, 70, 75 and 79-80. Adopted in pertinent part in Findings of Fact 34. Rejected as unnecessary. This subject matter is addressed in Findings of Fact 38. 6.-10. Subordinate to Findings of Fact 35, 70, 75, 77, 79 and 80. Rejected as unnecessary and subordinate to Findings of Fact 40, 58 and 59. Rejected as unnecessary and subordinate to Findings of Fact 58 and 59. Subordinate to Findings of Fact 59. Adopted in substance in Findings of Fact 36. Adopted in substance in Findings of Fact 37. Adopted in pertinent part in Findings of Fact 37. Adopted in substance in Findings of Fact 39. Adopted in substance in Findings of Fact 40. The first sentence is adopted in substance in Findings of Fact 40. The second sentence is rejected as constituting argument. Adopted in substance in Findings of Fact 41 Adopted in substance in Findings of Fact 44. Adopted in substance in Findings of Fact 44. Adopted in substance in Findings of Fact 45. Adopted in substance in Findings of Fact 42. Adopted in substance in Findings of Fact 48. Adopted in substance in Findings of Fact 49. Adopted in substance in Findings of Fact 46 and 47. 28.-29. Rejected as unnecessary and subordinate to Findings of Fact 70. Adopted in substance in Findings of Fact 50. Rejected as unnecessary. Adopted in substance in Findings of Fact 52 and 53. Adopted in substance in Findings of Fact 54. The first two sentences are adopted in substance in Findings of Fact 55 and 57. The remainder is subordinate to Findings of Fact 70, 79 and 80. Adopted in substance in Findings of Fact 35, 70, 75, 79 and 80. 36.-37. Subordinate to Findings of Fact 70, 75, 77, 79 and 80. Subordinate to Findings of Fact 70. Rejected as unnecessary. Subordinate to Findings of Fact 76, 77 and 78. Subordinate to Findings of Fact 75. Subordinate to Findings of Fact 75, 79 and 80. Rejected as vague, ambiguous and unnecessary. This subject matter is addressed in Findings of Fact 56. Rejected as unnecessary and subordinate to Findings of Fact 64. Subordinate to Findings of Fact 70. Subordinate to Findings of Fact 70. Rejected as unnecessary. This subject matter is addressed in Findings of Fact 34 and 77. Subordinate to Findings of Fact 57 and 70. Rejected as unnecessary. The evidence established that Respondent continued working at the Allergy Clinic for a year or more after S.L. alerted him to Seedarnee's actions. Subordinate to Findings of Fact 76. Subordinate to Findings of Fact 76. The Respondent's Proposed Findings of Fact regarding the First Administrative Complaint Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Rejected as unnecessary. Adopted in substance in Findings of Fact 1. Addressed in the Preliminary Statement. Addressed in the Preliminary Statement. Addressed in the Preliminary Statement. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 4. Subordinate to Findings of Fact 6. Adopted in substance in Findings of Fact 7 and 8. Subordinate to Findings of Fact 9 and 10. Rejected as contrary to the weight of the evidence and subordinate to Findings of Fact 18 and 19. Adopted in substance in Findings of Fact 14. Rejected as contrary to the weight of the evidence and subordinate to Findings of Fact 18 and 19. Subordinate to Findings of Fact 12. Subordinate to Findings of Fact 12. Subordinate to Findings of Fact 12. Rejected as unnecessary and as constituting argument rather than a finding of fact. Subordinate to Findings of Fact 12. Subordinate to Findings of Fact 12. Adopted in substance in Findings of Fact 23. Adopted in substance in Findings of Fact 23. Subordinate to Findings of Fact 27 and 28. Rejected as unnecessary and subordinate to Findings of Fact 27. Subordinate to Findings of Fact 27. Subordinate to Findings of Fact 27. Rejected as constituting argument rather than a finding of fact. Addressed in the Preliminary Statement. Rejected as constituting argument. The issues raised by Respondent go to the weight of the evidence and not to its admissibility. Subordinate to Findings of Fact 12. Rejected as unnecessary. The issues raised by Respondent regarding Dr. Lindbergh's qualifications go to the weight to be given to his testimony rather than its admissibility. Rejected as constituting argument. See #31 above. Rejected as speculative, constituting argument rather than a finding of fact and unnecessary. Subordinate to Findings of Fact 12. Rejected as unnecessary. Rejected as unnecessary. Addressed in Findings of Fact 12. Rejected as unnecessary. Rejected as unnecessary. COPIES FURNISHED: Mary B. Radkins, Senior Attorney Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 Neil F. Garfield, Esquire Suite 333 3500 North State Road 7 Lauderdale Lakes, Florida 33319 Dorothy Faircloth, Executive Director Department of Professional Regulation/Board of Medicine 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792
The Issue The issues are whether Respondent is guilty, in his care of each of several patients, of failing to perform a statutory or legal obligation by performing unnecessary diagnostic tests, failing to keep legible medical records justifying the course of treatment, exercising influence on the patient to exploit the patient for the financial gain of Respondent or a third party, prescribing legend drugs other than in the course of his professional practice, and failing to practice medicine in accordance with the applicable level of care. If Respondent is guilty of any of these violations, an additional issue is what penalty should be imposed.
Findings Of Fact At all material times, Respondent has been a licensed physician in Florida, holding license number ME 51631. At all material times, Respondent has been Board-certified in ophthalmology. Respondent has not previously been disciplined. From 1996 to 1998, to supplement his income from the practice of ophthalmology in Deerfield Beach, Florida, Respondent worked at the Metabolic Treatment Center in Ft. Myers, typically receiving patients twice weekly at the center. At the Metabolic Treatment Center, Respondent typically saw patients whose many complaints had not been resolved by other physicians. The treatment philosophy of the Metabolic Treatment Center and its staff, including Respondent, was to check for and treat the metabolic component of patients' disorders. While Respondent worked at the Metabolic Treatment Center, between one and three physicians worked at the center, although Respondent, rather than another physician, typically saw his patients. Respondent's employment at the center ended shortly after the persons who owned it when he started working there sold it to a publicly traded corporation. After the change in ownership, Respondent did not like the new chief operating officer of the Metabolic Treatment Center. Respondent claims that he declined an offer from the chief operating officer to become the medical director of the center. Problems multiplied at the center until, one day, management abruptly locked out the staff and closed the center. In September 1999, the corporation owning and operating the Metabolic Treatment Center was administratively dissolved by the Florida Department of State. In subsequent litigation between Respondent and the Metabolic Treatment Center, Respondent obtained a circuit court order requiring the center to turn over medical records to him, but this order appears to have resulted in little, if any, actual relief, and the court case was closed in February 1999 without Respondent's obtaining copies of extensive medical records. Neither party disputes the fact that, while employed at the Metabolic Treatment Center, Respondent kept handwritten medical notes on each patient whom he saw. Respondent testified that these brief handwritten notes constituted less than five percent of the chart entries that he made on each patient. Respondent testified that he supplemented his handwritten notes, which he made while seeing a patient, by dictating or otherwise inputting more elaborate notes into a computer at the center. Petitioner contends that the handwritten notes were the only medical records that Respondent prepared for each patient. The Administrative Law Judge credits Petitioner's contention. Respondent attributed the loss of the more detailed medical records to the sudden termination of his relationship with the Metabolic Treatment Center and the subsequent refusal of the center's owners to allow Respondent access to these computer-stored records. It is impossible to credit Respondent's claim, at least to the extent of inferring the existence of extensive, detailed records for each of the patients in question. Respondent knew that any data that he inputted into a computer at the Metabolic Treatment Center were in jeopardy, unless he made copies of the computer files. As a self- described "per diem" physician at the center, Respondent knew that, at anytime, he could lose access to the facility and the computer-stored data at the facility. Before his abrupt termination, Respondent had encountered growing problems with the new Metabolic Treatment Center owners. Familiar with computer hardware and software, Respondent easily could have made copies of the computer files containing the medical records of his patients, but he failed to do so, and he cannot adequately explain this failure. The "failure" is because no such more detailed records ever existed. Respondent does not appear to have been especially attentive to detail, at least when practicing metabolic therapy at the Metabolic Treatment Center. In certain respects, the underlying conflict in these cases is between Respondent, practicing--holistically--metabolic therapy, and Petitioner's expert, Dr. Elton Shapiro, practicing--analytically-- endocrinology. Whatever else may be said of Respondent's holistic methodology, it cannot be said that a single tree ever blocked his view of the vast forest. At one point during the hearing, Respondent misread simple data on a chart. At no point during the hearing did Respondent claim the smallest recollection of any detail about any of the several patients involved in these cases. Although Petitioner's delay in prosecuting these cases would have presumably contributed to Respondent's failure to recall the details of his care for these patients, it is unusual that Respondent would lack any recollection whatsoever of any of the four patients who were clearly under his care at the center. Respondent claims to have spent an hour and a half with each new patient--a claim that is not credited--but nothing else in his testimony or the record contradicts the impression created by other aspects of the record of a high-volume practice at the Metabolic Treatment Center. A high-volume practice was not conducive to the kind of detailed record-keeping that Respondent claims to have undertaken. As Respondent himself testified, the center's management supplied him with forms that identified packages of lab tests, so that a single package combined useful tests with tests of little value, given the complaints, history, and findings concerning a particular patient. Respondent's ready acceptance and use of these test packages also militate against a finding that he attended closely to detail in his metabolic therapy practice. Discrediting Respondent's claim of a vast trove of detailed medical records does not mean that the present records are complete or even unaltered. Respondent's relations with the new owners of the Metabolic Treatment Center deteriorated to the point of hostility. A significant possibility exists that, following the cessation of operations at the center, existing medical records were not safeguarded and some records were lost. Likewise, records may have been altered. One record in these cases bears a handwritten printing of Respondent's name, misspelled. Another bears an awkward depiction of Respondent's letterhead from his east-coast opthamological practice--of which Respondent plausibly disclaims any knowledge. Although the Administrative Law Judge excluded records that appeared altered, some handwritten notes, lab results, and other materials may be missing from the present records. In making the findings below, the Administrative Law Judge has considered--patient-by-patient, entry-by-entry--all reasonable bases for inferences of the existence of other medical records, such as other handwritten notes or lab reports, that would support the quality of care that Respondent may have provided to any patient. The primary effect of this inferential process has been not to find, after examination of the admitted medical records, that the omission of a record of a patient history means that Respondent did not take one. With one minor exception, the sole basis for the admission of the medical records that have been admitted is Respondent's testimony identifying specific pages of records. The medical records adequately identified by Respondent are contained exclusively in Petitioner Exhibit 9, which is the transcript of Respondent's deposition taken, while he was still represented by counsel, on November 17, 2005. Attached to the transcript are about 300 pages of copies of purported medical records. (These pages are numbered 1-222 and 24-105.) The transcript discloses which records, by page number, that the Administrative Law Judge found that Respondent had adequately identified. After reviewing all of the evidence, the Administrative Law Judge has determined that he improperly admitted at the hearing other medical records. These records, which Respondent has never identified adequately, came from two main sources, although the original source in all cases was (or should have been) the Metabolic Treatment Center. The sources of these excluded records are of insufficient reliability to justify their admission. None of the patients themselves identified their medical records. Petitioner obtained the excluded records, which Respondent has never adequately identified, from two sources. First, Petitioner obtained some of the records from J. H., who is a cost-control employee of the insurer whose concerns led to the investigations that culminated in these cases. J. H. contacted Respondent during the course of her investigation into the reasonableness of the testing and treatment ordered by Respondent. In an odd twist, Respondent invited J. H. to assume the role of a patient at the center, and J. H. accepted his invitation. Presumably, Respondent took a history, made physical findings, and may have recommended a plan of treatment for the insurance investigator, who then, presumably foregoing the treatment plan, caused herself to be included among the 11 patients who eventually formed the subject of DOAH Case No. 04-4111PL. (As noted above, Petitioner has dropped its allegations concerning investigator/patient J. H.) The Administrative Law Judge finds that medical records produced exclusively from the insurer or J. H. lack sufficient reliability, under the facts of these cases, including the unusual involvement of the insurer's investigator in producing facts on which to prosecute Respondent, to justify their admission. Second, Petitioner obtained some records from Respondent's former attorney, who testified briefly at the final hearing. However, the source or sources of these records are unclear in the record. Given the age of these cases, the lack of proof concerning the preparation and custody of the putative medical records, and the fact that Respondent's former attorney obviously obtained the records from one or more other sources, it is impossible to find that the records identified by counsel are sufficiently reliable as to admit them into evidence. Only one category of medical records, besides those adequately identified by Respondent, is sufficiently reliable to be admitted into evidence. This category comprises those few records that Dr. Shapiro testified at the hearing were linked in time and content to other records already adequately identified by Respondent. This post-hearing exclusion of additional evidence affects only C. M. among the nine patients remaining in these two cases. For C. H., P. G., Sarah B., and S. A., Petitioner relied exclusively on the medical records attached to Petitioner Exhibit 9, substantial portions of which Respondent adequately identified. For B. H.-M., G. H., L. L., and R. B., Petitioner acknowledged at the hearing that it was relying exclusively on testimony because no records pertaining to these patients had been admitted. The absence of any acknowledgement by Respondent that he treated B. H.-M., G. H., L. L., R. B., or C. M., coupled with the absence of any admitted medical records for these five patients, preclude any factfinding about Respondent's care of these patients, or even that Respondent cared for them at all. Petitioner has therefore failed to prove any of the alleged violations concerning these five patients. C. H., a 46-year-old female, presented at the Metabolic Treatment Center for an initial visit on June 6, 1996. For C. H., pages 3 and 5-26 under tab "C. H." in Petitioner Exhibit 9 are admitted. On June 6, Respondent performed a physical examination of C. H. that revealed nothing of clinical significance. Under "impression," Respondent noted "pending labs & NCV." "NCV" is a study of nerve conduction velocity. An NCV study measures the speed of conduction of a nerve, which is an indication of the nerve's condition. C. H. completed an 11-item checklist for her health history and symptoms. Her history reported mitral valve regurgitation and prolapse, fibromylagia, and hypoglycemia. However, C. H. circled the "no" response to the question, "Do you have diabetes?" On another form, C. H. denied having had any of the listed conditions. C. H. also completed a checklist circling "yes" or "no" next to each of 14 symptoms and 11 conditions. C. H.'s symptoms included dizziness, chest pain, numbness in hands or feet, back pain, neck pain, shortness of breath, "a feeling that your heart skips a beat," "a fluttering sensation in your heart," fatigue, weight gain, inability to lose weight, depression and menstrual problems. C. H. indicated that her history did not include any of the listed conditions. Prior to sending C. H. to obtain NCV studies from another physician working for the Metabolic Treatment Center, Respondent completed a Metabolic Treatment Center form entitled, "Letter of Medical Necessity." The purpose of the form, according to the preprinted contents, is for Respondent to certify that services are "medically necessary" and "reasonable and necessary." The form shows that Respondent ordered NCV studies of the upper and lower extremities by the Metabolic Treatment Center to rule out peripheral neuropathy, possibly of a diabetic nature. Dr. Martin S. Goldstein of the Metabolic Treatment Center performed the NCV studies on the date of the initial visit. Bearing the date of June 6, 1996, and the heading, "Metabolic Treatment Center," the report states that a "slowed conduction is demonstrated" for the left upper extremity. The report includes the impression of "peripheral neuropathy." Respondent never addressed the question of diabetes according to the medical records. Blood work performed on June 7, 1996, June 28, 1996, and July 24, 1996, revealed that glucose was in the normal range and serum insulin was normal on June 7 and July 24, but high on June 28. The records do not indicate whether Respondent ruled out diabetes, as was his documented intent on the original office visit, nor do the records contain any discussion of Respondent's conclusions from this repeated blood work, if he did not feel that he could rule out diabetes. The portion of the rule-out diagnosis mentioning diabetes merely faded out of the records, except, of course, for repeated blood work that typically assists a practitioner in diagnosing diabetes. At least as to Respondent's handling of the question of diabetes, Petitioner proved that the medical records fail to justify the course of treatment following a rule-out diagnosis of peripheral neuropathy, possibly of a diabetic nature. Petitioner also proved that Respondent's ordering of the NCV studies was unnecessary and excessive, despite the abnormality disclosed in the upper left extremity. The salient facts are: 1) Respondent ostensibly ordered the NCV studies to rule out peripheral neuropathy, possibly of a diabetic nature; 2) the NCV studies revealed likely peripheral neuropathy of the upper left extremity; and, most importantly, 3) Respondent's medical records contain no discussion of the meaning of the abnormal finding from the NCV study of the upper left extremity. Notwithstanding the abnormal NCV finding, Respondent failed to refer C. H. to a neurologist, undertake treatment himself, or document why he was taking neither action. Respondent's failure to act on the abnormal finding proves that he never intended to do anything if the NCV studies uncovered anything wrong, as one did. Additionally, Respondent ordered the NCV studies without first testing C. H.'s sensory or motor functions and despite the patient's denial of any tingling in the arms or legs. The evidence establishes that C. H.'s tests were unnecessary and excessive. By failing to act on the abnormal NCV finding, Respondent failed to conform to the applicable standard of care. However, Petitioner's standard of care allegations cite only inappropriate and excessive testing, failing to perform an appropriate history and physical examination, and inappropriately and inaccurately diagnosing C. H. The excessive testing with respect to the NCV studies, discussed above, is better described as a failure to conform to a statutory duty than a failure to satisfy the applicable standard of care. Other excessive testing, discussed immediately below, is better described as the exploitation of a patient for financial gain. For the reasons noted in the Conclusions of Law, below, it is impossible to conclude that Respondent's failure to act on the abnormal NCV result violates the applicable standard of care because of the absence of a specific allegation to this effect. The blood work of June 28 and July 24, 1996, was excessive for several reasons. In most cases, items tested were normal when first tested on June 7, but this first round of blood work was generally appropriate. However, no medical reason existed to retest such items three weeks later or one month after the second round of blood work. For example, Respondent ordered an iron reading on June 7, despite any basis to suspect anemia. The reading was normal, but Respondent retested it on June 28 and July 24--on which occasions, iron remained within the normal range. Respondent tested amylase on all three occasions--despite any complaint, such as acute abdominal pain, that would suggest pancreatitis and justify a test for amylase--and on all three occasions amylase levels were normal. As noted above, Respondent tested serum insulin on all three occasions, again for no apparent reason, after the initial test was normal and the second test revealed only a slight elevation. Respondent ordered additional tests that were unnecessary in connection with the above-described blood work. Items tested unnecessarily include prolactin (absent any problem with excessive milk production), cortisol (especially as it was not a suppression test, but was a random test, which is useless), ACTH (especially because it was ordered before any cortisol abnormality was found), DHEA (absent any finding of masculinization), and human growth hormone (in the absence of any indication of an abnormality in growth hormone). Petitioner proved that Respondent ordered unnecessary and excessive tests to exploit C. H. for financial gain. On June 13, 1996, Respondent saw C. H. for the first time after her initial visit a week earlier and started her on Cytomel, 5 mcg each, four times daily. Cytomel is T3, a synthetic thyroid hormone. T3 combines in the blood with another thyroid hormone, T4, to regulate the metabolism of the cells within the body. Normally, when these hormones fall too low in the blood, the pituitary gland produces thyroid stimulating hormone (TSH), which stimulates the thyroid gland to produce more T3 and T4. The June 7 blood work revealed that total T3 and TSH were well within the normal range, although T4 was either at the low range of normal or just below the normal range. The June 28 and July 24 blood work showed values only for total T3, which were again well within the normal range. Without any support in the medical records except a notation of "low energy," Respondent elected to commence thyroid hormone supplementation. Within a week after starting on this prescription, C. H. had reduced the frequency of taking the Cytomel to three times daily due to heart palpitations, which is a known side effect of the drug. However, during an office visit on June 27, Respondent advised C. H. to resume taking Cytomel--5 mcg, five times daily--obviously after learning of the heart palpitations, but before obtaining the results of the June 28 lab work showing a normal total T3 level. C. H. discontinued taking Cytomel on July 11, 1996, due to feelings of fatigue. On August 9, 1996, C. H. reported, for the first time, that she "feels great," although, judging from the medical records, her recovery seems to have been spontaneous. Petitioner proved that Respondent's initial prescription of Cytomel was inappropriate and outside the course of practice because the blood work indicated normal values for the relevant hormones. The medical records contain no trace of a discussion of why Respondent would prescribe T3 for a patient with these values, complaints, and history. Not only was the Cytomel useless, but, for C. H., it produced cardiac side effects. If Petitioner had alleged the inappropriate prescription of thyroid medications as a basis for an alleged violation of the applicable standard of care, as it did with respect to C. M. and S. A., Petitioner would also have proved that the increased prescription of Cytomel, on June 27, violated the applicable standard of care. The resumption of the Cytomel prescription on June 27 departed from the applicable standard of care because Respondent knew that the Cytomel had produced a potentially dangerous side effect, and he ordered C. H. to increase the dosage of Cytomel before he had even seen the results of the blood work done the following day--which results again showed a normal total T3 level. Respondent's treatment plan, if it fact it can be called a plan, seems completely unrelated to C. H. and the findings of any physical examination and lab work or the complaints and history that she related to Respondent. Not surprisingly, her recovery seems similarly unrelated to any treatment plan. However, Petitioner failed to allege the prescription of thyroid medication as a basis for an alleged violation of the applicable standard of care as to C. H. Petitioner failed to prove the three alleged grounds for an alleged violation of the applicable standard of care. Petitioner failed to prove that the history or physical examination was inadequate or that the only diagnosis in the records--a rule-out diagnosis--was inaccurate or inappropriate. Although Petitioner proved some inappropriate and excessive testing, this improper testing is best described as a failure to perform a statutory obligation, with respect to the NCV studies, and as the financial exploitation of a patient, as to the repeated and unjustified blood work. Thus, as to C. H., Petitioner proved a failure to perform a statutory obligation, a failure to maintain adequate medical records, the exploitation of a patient for financial gain, and the inappropriate prescription of a thyroid replacement medication, but not a violation of the applicable standard of care. P. G., a 43-year-old female, presented at the Metabolic Treatment Center for an initial visit on July 3, 1997. For P. G., pages 43-44 (top), 47-48, and 55-69 under tab "P. G." in Petitioner Exhibit 9 are admitted. Following a physical examination, Respondent noted diminished deep tendon reflexes at the right and left dorsal pedal sites, right and left biceps sites, right and left post- tibial sites, and right and left poplyteal sites. Respondent obtained a history that included high blood pressure and heart disease, as well as a family history of heart disease. P. G. complained particularly about depression, pain, swelling in the joints for five years, faulty memory, joint pain, and poor concentration. She also complained of fatigue, numbness, tingling, and muscle aches. Petitioner failed to prove a violation of the applicable standard of care for a failure to perform an adequate physical examination or history. Respondent made a working diagnosis of hypothyroidism, hypertension, endocrine gland disorder, and chronic fatigue. He also made a rule-out diagnosis of pituitary access disorder. Respondent ordered blood work and directed P. G. to record her basal temperature daily. Petitioner failed to prove a violation of the applicable standard of care for a misdiagnosis, at this point in Respondent's care of P. G. Petitioner's expert witness described NCV studies that Respondent ordered of P. G.'s upper and lower extremities on July 3, but Petitioner failed to prove that these studies took place. The portion of the medical records (p. 45 under tab "P. G." in Petitioner Exhibit 9) discussing the results of the NCV studies was not admitted into evidence, and the NCV reports themselves were not offered into evidence. Petitioner failed to prove a failure to perform a statutory obligation for ordering unnecessary NCV studies. The blood work resulting from a collection occurring on July 8, 1997, revealed elevated glucose and cholesterol components. Earlier blood work done in January 1997 revealed elevated cholesterol components, but not glucose. The July 1997 lab work reported normal levels of total T3, T4, and TSH, which are consistent with the results of the January 1997 lab work for T4 and TSH (T3 was not tested in January 1997). In ordering the blood work for July 7, Respondent ordered analysis of insulin, iron, cortisol, growth hormone, and prolactin. For the reasons discussed in connection with C. H., Petitioner proved that these tests were medically unnecessary. Petitioner thus proved that Respondent exploited P. G. for financial gain in ordering all of these unnecessary tests. P. G. returned to Respondent's office on July 11 to discuss the results of the blood work. Respondent diagnosed her with, among other conditions, hypothyroid "both by temperature and symptoms." Although Respondent noted the thyroid readings from the July 7 blood work, he failed to discuss the relationship between these normal readings and his diagnosis of hypothyroid. Petitioner thus proved that the medical records do not justify the course of treatment. Additionally, distinct from this shortcoming in the medical records, Petitioner proved that Respondent inaccurately diagnosed P. G. with hypothyroidism and thus failed to satisfy the applicable standard of care. The lab work relating to P. G.'s thyroid function resembles the NCV studies of C. H. in terms of a lack of medical necessity. In the case of C. H., Respondent ordered the NCV studies for a reason other than to assist in diagnosis because, when they disclosed an abnormality, he ignored the positive finding and took no action. In the case of P. G., Respondent ordered the thyroid tests for a reason other than to assist in diagnosis because, when they revealed no problems with thyroid function, he ignored the negative finding and proceeded as he presumably would have if the tests had produced a positive finding of thyroid abnormality. Petitioner has proved that the blood work on thyroid function lacked medical justification and was unnecessary, and Respondent thus failed to perform a statutory obligation. On July 11, Respondent started P. G. on Cytomel, "0.5" mcg, four times daily. (An error in the sequencing of Respondent's medical records under tab "P. G." in Petitioner Exhibit 9 places immediately after the page describing the July 3 visit a page noting an increase in the dosage of Cytomel. Given the presence of an August 22 entry on this latter page, it is obvious that the page containing the entry increasing the Cytomel should have followed the page that ends with the July 31 visit.) Also on the July 11 office visit, Respondent started P. G. on human growth hormone. The July 7 blood work did not support this treatment because Respondent failed to test for human growth hormone either after exercise stimulation or glucose suppression. The value for human growth hormone in the July 7 blood work appears to be within the normal range. At the next office visit, which took place on July 31, 1997, Respondent also increased P. G.'s Cytomel to 10 mcg four times daily and ordered her to take human growth hormone on a cycle of five days on and two days off. As on July 11, Respondent, on July 31, lacked any justification to prescribe Cytomel or human growth hormone to P. G. Petitioner proved that Respondent inappropriately prescribed controlled substances to P. G. However, this finding applies only to the prescription of Cytomel because Petitioner never alleged that Respondent inappropriately prescribed human growth hormone. Although the inappropriate prescription of Cytomel probably would also constitute a violation of the applicable standard of care, Petitioner did not make such an allegation regarding P. G. Thus, as to P. G., Petitioner proved a failure to perform a statutory obligation, a failure to maintain adequate medical records, the exploitation of a patient for financial gain, the inappropriate prescription of a thyroid replacement medication, and the violation of the applicable standard of care. Sarah B., a 52-year-old female, presented at the Metabolic Treatment Center for an initial visit on September 5, 1996. For Sarah B., pages 72-80 and 87 under tab "Sara [sic] B." in Petitioner Exhibit 9 are admitted. No patient history was admitted into evidence, but it is impossible to infer from this omission that Respondent failed to obtain an appropriate patient history. Completed forms were present for other patients, the forms seem to have been readily available for completion by patients (not Respondent), and completed forms, which supplied numerous conditions or complaints that the patient had only to recognize and mark, set the stage for metabolic treatment of these numerous conditions or complaints. The records document Respondent's physical examination of Sarah B. on September 5, 1996, and disclose no abnormalities. Under "impression," Respondent stated, "pending labs and NCV." Petitioner failed to prove a violation of the applicable standard of care for a failure to perform an adequate physical examination or history. Performed on September 5, the NCV studies, again performed by Dr. Goldstein of the Metabolic Treatment Center, find a "mild focal peripheral neuropathy." Respondent next saw Sarah B. on September 12 and 20, 1996, but his notes omit any mention of the neuropathy. Once again, Respondent failed to treat the condition revealed by the NCV studies, refer the patient to a neurologist, or at least explain why he was taking no action. For the reasons discussed in connection with C. H., Petitioner proved that the NCV studies ordered by Respondent lacked medical justification and were unnecessary, and Respondent thus failed to perform a statutory obligation. Respondent ordered analysis of cortisol, DHEA, human growth hormone, iron, prolactin, and amylase. The records reveal no justification for these tests. Petitioner proved that Respondent exploited Sarah B. for financial gain. The September 5 blood work revealed normal values for T4, total T3, and TSH. Despite the absence of any thyroid abnormalities, on September 12, Respondent started Sarah B. on Cytomel, 5 mcg, four times daily. Respondent's notes reveal no reason why he started Sarah B. on Cytomel and lack even the specificity of the notes on the same issue with respect to P. G. Petitioner proved that the medical records fail to justify the course of treatment. However, Respondent discontinued the Cytomel one week later. Although the notes fail to explain the reason for his action, Respondent's prompt discontinuation of Cytomel demands more proof than Petitioner has provided, if it were to prove that the weeklong prescription of Cytomel was inappropriate or, had Petitioner pleaded the prescription of Cytomel as a violation of the applicable standard of care, deviated from the applicable standard of care. Thus, as to Sarah B., Petitioner proved a failure to perform a statutory obligation, a failure to maintain adequate medical records, and the exploitation of a patient for financial gain, but not the inappropriate prescription of a thyroid replacement medication or the violation of the applicable standard of care. S. A., a 53-year-old female, presented at the Metabolic Treatment Center for an initial visit on June 3, 1998. For S. A., pages 88-90, 92, 97-99, and 100-06 under tab "S. A." in Petitioner Exhibit 9 are admitted. After performing a physical examination, which included pulses and reflexes of the extremities, Respondent formed the impression that S. A. probably suffered from peripheral neuropathy. As is the case with Sarah B., no patient history is contained in the medical records, but, for the reasons stated above, it is impossible to find that Respondent failed to take a history. Petitioner thus failed to prove a violation of the applicable standard of care by failing to perform an appropriate physical examination or history. S. A. is dissimilar to the above-described patients in several respects. First, according to the testimony of Dr. Shapiro, S. A. suffered from hypothyroid disorder, so the ordering of blood work to assess thyroid function and the prescribing of thyroid supplement were appropriate. Second, judging from the medical records, Respondent did not order NCV studies. Third, S. A. was an uncooperative patient. Fourth, the lab reports on the blood work are substantially illegible, likely due to poor copying, with the result that it is impossible to read the values and ranges for particular items that are tested and, in some cases, read the items themselves. In general, no clear picture of the findings, diagnoses, and treatment plan emerges from the record, with the sole exception stated in the following paragraph. The sole exception is that it is clear from the records that Respondent, again, ordered tests of numerous items, such as testosterone (absent masculinization), prolactin, cortisol, growth hormone, and blood type, that were unnecessary. Petitioner thus proved that Respondent exploited S. A. for financial gain, but failed to prove the remaining S. A.-related allegations.
Recommendation RECOMMENDED that the Board of Medicine enter a final order dismissing DOAH Case No. 04-3222PL and dismissing all counts in DOAH Case No. 04-4111PL, except the four counts alleging the financial exploitation of C. H., P. G., Sarah B., and S. A.; the three counts alleging the failure to perform a statutory obligation regarding C. H., P. G., and Sarah B.; the three counts alleging the failure to maintain adequate medical records regarding C. H., P. G., and Sarah B.; the two counts alleging inappropriate prescriptions to C. H. and P. G.; and the one count alleging a violation of the applicable standard of care as to P. G. For these violations, the Board should enter a final order imposing an administrative fine of $29,000 against Respondent and placing his license on probation for five years. DONE AND ENTERED this 5th day of May, 2006, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 2006. COPIES FURNISHED: Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701 Dr. M. Rony Francois, Secretary Department of Health 4052 Bald Cypress Way, BIN A00 Tallahassee, Florida 32399-1701 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Irving Levine Department of Health Prosecution Services Unit 4052 Bald Cypress Way, BIN C65 Tallahassee, Florida 32399-3265 Marvin Reich 1979 West Hillsboro Road Deerfield Beach, Florida 33442
