The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Amended Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against Respondent, if any.
Findings Of Fact At all times material hereto, Respondent has been a licensed physician in the State of Florida, having been issued license number ME 007919. Respondent is an orthopedic surgeon, practicing in Hallandale, Florida. Respondent first met N. L. on March 6, 1985, when she came to him for treatment of injuries which she received in a motor vehicle accident on March 2, 1985. N. L. began receiving physical therapy in Respondent's office and was examined by Respondent on a regular basis. The primary medication given to N. L. by Respondent was B-12 IM. On a number of occasions, Respondent gave N. L. a prescription for valium (Diazepam). Diazepam is a Schedule IV controlled substance as defined by Chapter 893, Florida Statutes. Respondent made a notation in N. L.'s records whenever he gave her a prescription for medication and whenever he gave her a sample of medication which he had received from manufacturers' representatives. Although subsequently released from active treatment, N. L. continued to return to Respondent's office for treatment and therapy due to continued complaints and due to episodes of exacerbation of the injuries which she had previously received. Respondent saw N. L. as a patient for the last time on February 20, 1987. Respondent gave her no prescriptions for valium subsequent to that date. Thereafter, Respondent did see N. L. socially. She was a friend of his children and dated one of his sons. She was a guest in Respondent's home on a number of occasions. On occasion, she accompanied his sons when they came to Respondent's office. On several occasions, she flew with Respondent in his airplane. N. L. was never drunk or "stoned" when she was in Respondent's presence. Respondent never saw any evidence that N. L. was an alcohol and/or drug abuser. On or about July 25, 1989, N. L. died as a result of a car accident. Some Diazepam was found in her blood at the time of her death. Her blood also revealed a high alcohol content. Respondent kept his blank prescription pads in more than one location in his office. He kept some in his desk and kept some in a cabinet in the hallway across from the examining rooms. According to the records of Eckerd Drug Store, on May 18, 1989, someone had a prescription for valium filled. That prescription appeared to be signed by Respondent. It was issued in an alias used by N. L. and reflected N. L.'s home address. That prescription was filled in increments on May 18 and May 19 by the pharmacists working at Eckerd. According to the records of Eckerd Drug Store, on June 13, 1989, someone had a prescription for valium filled. That prescription appeared to be signed by Respondent. It was issued in an alias used by N. L. and reflected N. L.'s home address. That prescription was filled on June 13, 1989, was refilled on June 27, 1989, and was refilled on July 18, 1989, by the pharmacists working at Eckerd. Although the signature on the two prescriptions described above is similar to Respondent's, Respondent did not sign or issue those prescriptions to N. L. C. F. is a 28-year-old female who slipped and fell in her apartment on August 23, 1989. She sought medical treatment immediately following her fall. She then retained an attorney to represent her in the civil litigation she would be filing as a result of her fall, and that attorney referred her to Respondent for treatment and physical therapy. Respondent's first contact with C. F. occurred on her first visit to his office on August 31, 1989. At that time, Respondent performed a full physical examination on C. F. and started her on a course of physical therapy. It was not Respondent's practice to see each patient every time that patient came in for physical therapy. Rather, Respondent would see such patients once a week, either in the physical therapy room or in one of his examining rooms. On November 2, 1989, Respondent saw C. F. in the therapy room. C. F. listed her complaints, and Respondent examined her and dictated notes for her medical chart. C. F. asked Respondent if she could talk to him in a different room. She was placed in one of the examining rooms. When Respondent came into the examining room, C. F. asked if the door could be closed and if it could be secured. Respondent then closed the sliding door to the examining room, securing it with a pin. C. F. then told Respondent that she was "very good at giving head." Respondent replied that that was nice but he was busy. C. F. continued to joke and was laughing when she left the examining room. Thinking it insignificant, Respondent gave no further thought to the banter which had taken place. As C. F. left the office, she stopped at the front desk and made an appointment for a physical therapy treatment the following week. On November 7, 1989, C. F. arrived for her scheduled physical therapy treatment. She was not scheduled to see Respondent on that date. While C. F. was lying on the traction table, she asked the physical therapist if Respondent were in the office that day. The therapist responded that he was and asked if C. F. needed to speak to him. At first, C. F. said she did not need to see Respondent, but she later became insistent that Respondent see her. By the end of C. F.'s therapy session, C. F. was demanding that she be seen by Respondent, taking the position that she would not leave without seeing him even if that meant that she had to wait all day. The therapist told Respondent that C. F. was demanding to see him, and Respondent told the therapist to put C. F. in an examining room. Respondent then became busy, and the therapist did not have an opportunity to tell Respondent that C. F. was acting "a little eerie." C. F. was taken to an examining room. She waited for approximately an hour before Respondent was able to see her. When Respondent entered the examining room, C. F. asked him to close the door and motioned to him to lock it by putting the locking pin in place. Respondent closed the door and inserted the pin. C. F. walked over to Respondent, abruptly opened his belt, opened his pants, pulled his pants down, pulled down his underwear, pulled up his shirt, and told Respondent to "hold this," referring to his penis. C. F. then told Respondent that she had to get a napkin. She turned, took two steps toward her pocketbook, reached in, pulled out a camera, and instantly shot two pictures of Respondent. She then ran to the door shouting for her husband whom she had brought with her to her therapy session on that day. Respondent reached for her pocketbook, but C. F. pulled the pin out of the door, opened the door, and ran out still loudly calling her husband's name. C. F. and Respondent were alone in the examining room for no more than two minutes. By this time, her husband Patrick had entered the examining room area, where he immediately attacked the x-ray technician, placing his hands around the x-ray technician's throat and attempting to strangle him. C. F. told her husband he had gotten the wrong doctor, and Patrick then ran to Respondent and placed a stranglehold on him. C. F. and Patrick left Respondent's office, stopped by the gas station where C. F. worked, and then went to the Hallandale police station. Within 24 hours from the time that C. F. seduced Respondent in his office, she had contacted the attorney representing her in her "slip and fall" lawsuit regarding his filing an action against Respondent, had had a "falling out" with that attorney over him representing her, had hired a different attorney to file a lawsuit against Respondent, had been referred by that second attorney to a third attorney who would represent her along with the second attorney in suing Respondent, had been interviewed by a local television station at the office of one of her new attorneys, her interview and the interview with her new attorneys had been shown on both the early evening and the late evening news, and contact had been made between C. F.'s new attorneys and Respondent's attorney regarding C. F.'s demand for money from Respondent. No civil suit was ever filed by C. F. against Respondent. Numerous contacts took place between C. F.'s attorneys and Respondent's attorney. Additionally, C. F.'s attorneys contacted the Department's investigator a number of times attempting to obtain confidential information from the investigator to be used in C. F.'s claim against Respondent. Over the next several months, C. F.'s attorneys continued to demand money from Respondent and threatened Respondent with additional publicity. In the face of C. F.'s threats of expanded publicity against Respondent, a settlement was entered into in February of 1990. Under the terms of that settlement, C. F. received a cash payment from Respondent's medical malpractice carrier with an "extremely nominal" contribution from Respondent. Respondent was immediately devastated by his encounter with C. F. on November 7, 1989. He walked down the hallway in his office building and made an appointment to see Dr. Burton Cahn, a psychiatrist practicing in that building. He was not able to see Dr. Cahn until November 9, 1989. Dr. Cahn began treating Respondent for his depression, seeing Respondent at first twice a week and then once a week. Respondent was still seeing Dr. Cahn regularly at the time of the final hearing in this cause. Respondent voluntarily ceased practicing medicine on November 9, 1989, to avoid the possibility that the problems with C. F. would distract him from providing good quality medical care. He resumed his office practice on March 7, 1990, with Dr. Cahn's full approval and following Dr. Cahn's suggestion that Respondent never see a female patient without another female in the room. Respondent had ceased performing hospital surgical procedures by approximately August of 1989, two months before the incident with C. F., since he was not doing much surgery in a hospital setting and had someone else in his office who was performing hospital surgical procedures. When he resumed his office practice on March 7, 1990, Respondent did not resume performing hospital surgical procedures since he thought he might be "too rusty". Respondent is able to practice orthopedic surgery. He does not represent a danger to himself or to the people in the community. A further suspension of Respondent from his practice would be of no benefit to him or to the community.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding the Respondent not guilty and dismissing the Amended Administrative Complaint filed against him. DONE and ENTERED this 18th day of October, 1991, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-1565 Petitioner's proposed findings of fact numbered 1-4, 6-9, 22, 28, and 31 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 5 has been rejected as being unnecessary for determination of the issues herein. Petitioner's proposed findings of fact numbered 10, 13-18, 23, and 24 have been rejected as being subordinate to the issues under consideration herein. Petitioner's proposed findings of fact numbered 11, 12, 20, 21, 25, 26, 29, 30, and 35 have been rejected as not being supported by the weight of the credible and/or competent evidence in this cause. Petitioner's proposed findings of fact numbered 19, 27, and 36-41 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel. Petitioner's proposed findings of fact numbered 32-34 have been rejected as being contrary to the weight of the credible evidence in this cause. Respondent's four unnumbered paragraphs contained in the Findings of Fact section of his post hearing Report and Recommendation of Referee have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel. COPIES FURNISHED: Dorothy Faircloth, Executive Director Department of Professional Regulation/Board of Medicine 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Mary B. Radkins, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 David Bogenschutz, Esquire 633 Southeast Third Avenue Fort Lauderdale, Florida 33301
The Issue The issues are whether Respondent violated Section 480.046(1)(c), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the agency charged with the duty to regulate the practice of massage therapy in Florida. At all time relevant to this proceeding, Respondent was licensed to practice massage therapy, holding license No. MA0020209. In September 1997, Respondent provided massage therapy treatment on three occasions to a client, M.J. The treatment was intended to be therapeutic for injuries suffered by M.J. in an automobile accident. The last of the massage therapy sessions occurred on September 19, 1997, at the home of M.J.'s mother. M.J. subsequently filed a formal complaint with the Duval County Sheriff's Office. The complaint alleged that Respondent touched M.J.'s breast and nipple inappropriately during the September 19, 1997, massage therapy session. On November 24, 1997, the State Attorney, in and for Duval County, Florida, filed an Information, charging Respondent with misdemeanor battery in violation of Section 784.03(1)(a), Florida Statutes. In a jury trial on April 15, 1998, Duval County Court Case No. 97-66371 MM, Respondent was convicted of simple battery, a criminal violation of Section 784.03(1)(a), Florida Statutes. The above-referenced criminal conviction arose directly out of Respondent's massage therapy session with M.J. on September 19, 1997. Respondent would not have been charged with and convicted of simple battery but for Respondent's massage therapy practice on M.J. Respondent had to pay a $200 fine and $115 in court costs as a result of his criminal conviction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order fining Respondent $500 and assessing costs of investigation and prosecution. DONE AND ENTERED this 10th day of October, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 10th day of October, 2000. COPIES FURNISHED: Gary L. Asbell, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Stop 39 Tallahassee, Florida 32308 Stanley Michael Carroll 1535 San Juan Avenue Jacksonville, Florida 32210 William H. Buckhalt, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issues to be resolved are whether Respondent committed the offenses charged in the Administrative Complaints and, if so, what penalties should be imposed.
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of massage therapy practice pursuant to section 20.43 and chapters 456 and 480, Florida Statutes. Respondent, Terrence Grywinski, is a licensed massage therapist in the State of Florida and holds license number MA 6049. Respondent’s mailing address is 6419 Meandering Way, Lakewood Ranch, Florida 34202. Respondent, Terrence Grywinski Massage, is licensed as a massage establishment in the State of Florida and holds license number MM 18059. The establishment’s physical location is 1188 Tamiami Trail, Sarasota, Florida 34236, and this location is the location where all appointments relevant to the facts in this case were scheduled and conducted. Respondent has been licensed to practice massage therapy in Florida since on or about July 9, 1985. The establishment was licensed as a massage establishment on or about March 20, 2006. Respondent is the sole owner and sole employee of the establishment, which conducts business as Advanced Craniosacral Therapy. No evidence was presented to indicate that either license has been previously disciplined by the Board. As a licensed massage therapist, Respondent is subject to the state of Florida laws and rules governing licensed massage therapists, and the establishment that he owns is likewise subject to the laws and rules governing massage establishments. Respondent does not practice traditional massage therapy and has not done so since approximately 1995. He was trained in a modality called craniosacral therapy (CST) in 1995, and has performed that modality exclusively since that time. According to Respondent, trauma of any kind, whether emotional or physical, causes a tremendous force of energy to come into the body, and the body tries to protect itself by “shortening” and isolating the energy. This isolation of the energy created by trauma is what creates areas of tension within the body. The theory behind CST is that the body will correct itself when it feels “safe.” CST works with the fascia connective tissue that attaches muscles to the bone, and encases a person’s organs, brain, and spinal cord. CST uses very gentle holds to create a safe space for the body, which will help the body slip into a corrective reorganizational healing mode. When a person undergoes CST, the fascia will start to release and the person will feel a “letting go” or release in the tissue. CST does not involve manipulation of the tissue, but rather, a series of holds that may last in any one place for five to ten minutes. The amount of pressure applied is “whatever pressure the body tells you it needs,” but generally no more than five grams of pressure. According to Faith Buhler, who testified by deposition as an expert for the Department, when there is a release, there is a different pulse in the body. Respondent trained in CST through the Upledger Institute, which was established by John Upledger. Respondent has received extensive continuing education in CST and the majority of his statutorily required continuing education deals with the performance of this modality. Typically, Respondent’s first-time clients make an appointment for CST and are given a code to enter the second floor of the building where Respondent’s office is located. He greets patients in a common waiting room and takes them to the one-room office where therapy takes place. The office contains two chairs, a massage table, a small side table where a “cupping” machine is stored, and a bookshelf. New clients are asked to fill out an intake sheet that requests some basic information about the client and his or her reason for seeking CST. Respondent uses the information on the intake sheet to speak with the client about his or her needs, and places it in a manila folder that he uses to take notes. The notes are on the manila folder itself, as opposed to paper contained in the folder. If additional space is needed for subsequent visits, he simply gets another manila folder and, hopefully, keeps the folders about a particular client together. Respondent admits he is not very organized, and maintaining his files is not his specialty. Most clients have three to six sessions with Respondent, so it is conceivable that for most clients, a single folder would be sufficient. After Respondent speaks with the client, the client lies down on a table during the therapy, fully clothed, facing up. Typically, Respondent is the only person in the room during CST sessions, and the sessions last approximately an hour and a half. He will assess a client by lifting each leg to compare length and will rotate the legs to assess range of motion through the hips. After assessing a client, Respondent goes through a series of gentle holds, generally using the same protocol each time, with some variation depending on the need of the client. He testified that he will tell clients what he is going to do and where he is going to place his hands, and advises clients that if at any time they feel uncomfortable with what he is doing or where he is placing his hands, the client should feel free to tell him. Respondent will review the notes he made from prior visits at the beginning of each session and will discuss any changes that have taken place since the last session. Many times, the notes that Respondent keeps will include sensitive personal information related by a client if that information may reveal a source of trauma. During the time period relevant to these proceedings, Respondent advertised his practice in an alternative medicine magazine called “Natural Awakenings.” M.M. is the managing editor of Natural Awakenings. As part of her job, she writes articles and conducts interviews of professionals who advertise in the magazine. M.M.’s supervisor, Janet Lindsay, assigned her the task of interviewing and writing an article about Respondent and his practice. M.M. was told that Respondent practiced CST. On May 1, 2017, M.M. emailed Respondent and told him that Natural Awakenings wanted to feature him in an article for the June issue, and sent him a series of questions to answer, along with her telephone number. Respondent did not immediately respond, so on May 8, 2017, M.M. emailed him again to make sure he received the first email. Respondent called M.M. the next day and suggested that M.M. come in and receive a CST treatment at no charge, so that she would have a better understanding of the modality when writing the article. M.M. accepted the offer and made an appointment to see Respondent on May 12, 2017. During this first session, M.M. interviewed Respondent for the article, filled out an intake sheet, and provided a medical history. Respondent asked her some questions, then directed her to remove her shoes and lie on the table, fully clothed. Respondent explained what he was doing and where he would place his hands as he performed the various holds. M.M.’s description of the first session is consistent with Respondent’s description of how he conducts all CST sessions. There is no allegation that any improper or unprofessional conduct took place at the May 12, 2017, session. At the end of the session, Respondent offered to continue providing free sessions to M.M. in exchange for M.M. writing additional articles for the magazine about his practice. M.M. agreed to the arrangement. She testified that these kinds of arrangements are not the norm, but that it was not the first time it had occurred. M.M. testified that she felt better after having the CST session, in that her chronic pain was better, her body less tense, and her breathing easier, especially when running. These benefits, however, were temporary. M.M. wrote an article about the first session, which she provided to Respondent for review and approval before it was published. Respondent appreciated the article, felt that it was well written, and benefited his practice. On May 18, 2017, M.M. provided the final copy of the article for publishing. There was no indication from the evidence presented that the parties’ interaction at the initial visit or the exchanges regarding the article in the week following the visit were anything but professional. M.M. saw Respondent for additional sessions on June 9, 2017; September 26, 2017; November 3, 2017; and November 30, 2017. M.M. did not find anything about these visits to be unprofessional or out of the ordinary, with the exception of the last visit on November 30, 2017. M.M. and Respondent’s accounts of the November 30, 2017, visit are not reconcilable. Respondent testified that the visit was much like previous visits, while M.M. contends the visit involved unwanted and inappropriate touching and inappropriate commentary about her body. Leading up to the final visit, M.M. testified that Respondent’s behavior seemed more familiar and personal than the behavior of a health care provider. She claimed that he started calling and emailing her late at night, and referred to her as his “muse.” She specifically indicated that one call came on a weekend, and she chose not to answer it because she was with her sister and did not want to interject work issues into her weekend. Phone records from the providers for both M.M. and Respondent’s phone numbers reveal only one call made from Respondent to M.M., and that call took place May 9, 2017, before her first appointment with him. The Department did not produce any of the emails M.M. claimed that Respondent made to her. Respondent produced most, but not all, of the emails between the two. He testified that he provided to the Department all of the emails he found at the time he responded to the complaint, and that any omissions were unintentional. It is noted that the subpoena issued to Respondent requests patient records, but does not request emails. The request for production issued by the Department to Respondent, which is on the docket for this case, does not specifically request emails, but instead requests documents to be used at hearing. None of the emails in evidence contain any improper statements. All of them involve either questions about Respondent’s practice, or review of the articles that M.M. wrote about his practice.2 2 During hearing, the Department showed Respondent a copy of an email he provided in response to the Department’s request for production. The email appears, from the portions read at hearing, to involve an article that Respondent wrote about his practice. The Department did not offer the email into evidence, but asked Respondent to read where the email apparently stated, “both of you are my angels.” Respondent responded by saying, “Yes, I said that, but I never called her an angel in any session. I was complimentary. Both Lindsay – or Janet Lindsay and Ms. M.M. were very helpful in my professional life, and I see nothing wrong with referring them to angels who are helping me in my profession. And if I said I never called anybody an angel, I couldn’t remember that email until you brought it up now.” Phone records between M.M. and Respondent do indicate that Respondent contacted M.M. either by email or by text, late on some evenings. However, up until March of 2018, well after the final appointment, these contacts were in response to emails sent by M.M. to Respondent. The telephone records reference emails sent by Respondent to M.M. on January 17 and 23, 2018, a few months after M.M.’s last visit. However, neither Respondent nor M.M. were asked about these emails by date, and the record contains no information regarding their contents. The weekend before the November 30, 2017, visit was Thanksgiving weekend, and M.M. and her husband had a lengthy car ride returning from Atlanta where they spent Thanksgiving. For whatever reason, M.M. had a panic attack during the car ride, and remained especially tense at her appointment with Respondent. She recalled that the discussion portion of the visit seemed shorter, and that Respondent used a pendulum to detect energy before commencing with the CST.3 He noticed that her chest area was more closed then usual and asked her if there was some reason why she had tightness there. M.M. testified that she explained to Respondent that she had always had body image issues, specifically with her chest. She stated that Respondent offered to address the tension with a modality called “cupping,” which would also make her breasts look “perkier.” Cupping is a modality that Respondent acknowledges using on occasion. He has cupping equipment that has a variety of cup sizes and is The Department also contends in its Proposed Recommended Order that “Grywinski has no explanation for why he did not provide the January 2018 emails.” However, the record does not reflect that the Department ever specifically asked Mr. Grywinski a question about those emails, either at hearing or in his deposition, so as to require an explanation about them. 3 The use of the pendulum is a technique that Respondent developed himself. It supposedly detects energy in the body, or an absence thereof, and he also used this technique in a prior session. made so that one can use one or two cups at a time, although he generally uses only one. The machine has tubing that attaches to both the machine and the cup(s), and the amount of pressure to create suction can be changed using a dial on the machine. M.M. testified that she was familiar with the concept of cupping, both from research she had performed for articles, and from the then-recent 2016 Olympics where there were stories about Michael Phelps using the technique. She agreed to the cupping, and she testified that Respondent directed her to completely disrobe. According to her testimony, Respondent remained in the room while she disrobed, and did not offer her a drape of any kind. There was no testimony about what Respondent was doing while M.M. disrobed: i.e., whether he turned his back, set up the equipment, or watched her. M.M. testified that she did as Respondent asked because she had seen a number of health care providers for a variety of reasons all of her life, and trusted them. M.M. stated that Respondent instructed her to lay face up on the table and rolled a cart with the cupping machine over to the table.4 According to her, Respondent explained that while “one breast was being suctioned, he was performing what he called lymphatic drainage on the other breast, which basically involved finger motions on my skin that were kind of applied in a – in a rhythmic upward motion with both hands. And the idea behind it was to stimulate blood flow and circulation in the lymph nodes of that region.” M.M. stated that after the cupping of the first breast was completed, Respondent moved the cup to the other breast and duplicated the process. He then explained that he would continue to perform lymphatic drainage on the remainder of her body, and began working his way down her body, performing the same circular motions, including her stomach, hips, and pelvis; down to her pubic area and groin, and eventually her genital area, 4 Respondent testified that there is not a rolling cart in the room, because the room is too small to accommodate one. According to him, the cupping machine sits on the table against the wall, but has lengthy tubing. which she testified could have been either accidental or purposeful contact. M.M. testified that he grazed her buttocks and called them “buns of steel,” as well as referring to himself as a “horny old man.” M.M. also testified that while performing the lymphatic drainage, he touched her genitals with his fingertips. Following the lymphatic drainage, Respondent told M.M. that the session was over, and she could dress. M.M. stated that he asked not to include the last portion of the visit in her article because he was afraid of losing his license. She redressed, with Respondent remaining in the room, and after doing so, they exchanged pleasantries and she left the office. Respondent emphatically denies M.M.’s allegations. He acknowledges that he performed cupping on M.M but denied that he performed it on her breasts. According to Respondent, he performed cupping on her abdomen to relieve constipation. His records for November 30 state in part, “sm + lg. intestines & ileocecal inflamed. – complained about constipation -- cup abdomen?” When M.M. was asked whether Respondent performed cupping of her abdomen for constipation, she could not remember if she mentioned constipation to Respondent, but it was possible, and did not remember if he cupped her abdomen. Respondent testified that he explained cupping to her and told her both about uses for cupping in China, which include cupping of the breast and of the face, but also explained it is used for different purposes in the United States. In his written response to the allegations that he provided to the Department during the investigation, he stated: Because of her interest in health, (she has her own health blog) and a possible future article, I demonstrated the cupping process for her and went into a lot of detail on how it worked and what it was used for in China and the protocols that cupping I had been trained in through Ace Cupping. With cupping, the therapist is able to bring new blood and enhance circulation and lymph flow and drainage in congested and tight muscles or area of the body. * * * I also shared that the Chinese used the machine to cup women’s breasts and they claimed that if a woman breast was cupped everyday for 30 days, it would enhance circulation and lymphatic drainage and that would bring about healthier breasts or uplift them. In no way was I suggesting that we cup her breasts and I did not do so. Respondent also indicated in the investigative response that M.M. seemed uncomfortable with the cupping procedure and that he cut it short. Although his response stated that she seemed uncomfortable with the cupping, it also stated that she did not state that she was uncomfortable with any procedure he employed throughout all of the craniosacral sessions, including the November 30 session. Respondent testified that he did not ask her to undress, but rather, asked her to raise her shirt to the bottom of her ribcage, and to lower her shorts to the top of her hips, so that only that strip of skin was exposed. He placed oil on her skin, used a cup approximately two inches in diameter, and moved the cup in the same direction as the digestive system in a circular motion. M.M., by contrast, testified that no oil was used. Respondent did not perform lymphatic drainage: while he is aware of the technique, he has not been trained in it. A review of his continuing education records do not reveal any classes in lymphatic drainage. Respondent further testified that only a small portion of skin was showing while he performed the cupping, and Respondent did not provide M.M. a drape (although it is unclear that one would be necessary), and did not leave the room while she readjusted her clothing once the procedure was finished. Respondent also denies that he asked M.M. not to include the final portion of the visit in her article because he was afraid he would lose his license. At the time of the visit, there was no article in process. M.M. had already produced two articles about Respondent’s practice, and although M.M. believed she wrote three, no third article was produced, and there are no emails or texts addressing a third article, like there were for the first and second ones M.M. wrote. M.M. claimed that the third article was supposed to be a question/answer column with Respondent and a local chiropractor, Eric Winder, who Respondent says he does not know. It does not appear from the investigative report that Eric Winder was interviewed, and he was not called as a witness at hearing. Respondent likewise denies telling M.M. that she has “buns of steel,” or referring to himself as a “horny old man.” There was no further contact between M.M. and Respondent for several months. The phone logs for AT&T indicate that there were three emails sent by Respondent to M.M. in January, but as noted previously, those emails are not in evidence. On March 11, 2018, Respondent reached out to M.M. by email, asking for permission to use an edited version of one of her articles in some advertising for his practice. M.M. responded by saying, “[y]es that’s fine. Feel free to use the edited version.” On April 14, 2018, Respondent emailed M.M. again, and stated, Dear [M.M.] Hope all is well with you. I want to thank you for allowing me to use your articles in my ads. Very effective and have brought me a number of new clients. I would like to send you a check for $200, a $100 each for the 2 articles in appreciation. Could you send me your address so I can send you the check. As my practice slows down for the summer, I should be able to get you back in for more sessions. With great appreciation, Terry To which M.M. replied, That’s kind of you to offer, but not necessary but appreciated. If you feel compelled to send a check (again, not necessary), you can mail it to [M.M.’s home address]. However, I will tell you that I’m unable to come in for sessions, as I recently moved to the other side of town, and the drive is no longer conducive with my weekly schedule. But you are free to continue to use the articles I’ve written about your practice in any capacity you choose. M.M. testified that she told a friend about the November 30 session about a week after it happened, and it was her friend’s reaction that alerted her that what happened was not appropriate. Notes from her therapist indicate that she stated that she did not tell anyone for several months.5 She did not tell her husband for approximately four months after the incident. Neither her husband nor the friend that M.M. stated she told about the incident testified at hearing. There are other date discrepancies in the therapist’s notes as compared to other events in this case. For example, the September 5, 2019, entry refers to hearing from the Sarasota Police Department regarding the incident, which is, as found below, prior to the time she even reported the incident to the Department of Health, who in turn contacted law enforcement. It may be that even if the dates for the sessions in the notes are incorrect, the inconsistencies are enough to raise concerns. This is especially so given that the subpoena sent to the therapist requests ALL patient records, and the ones provided only covered the time period from August 8, 5 M.M.’s therapist’s records were subpoenaed by the Department. Statements made for the purpose of diagnosis and treatment by a person seeking the diagnosis or treatment which describe medical history, past or present symptoms, pains, sensations, or the inceptions or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment, are an exception to the hearsay rule. § 90.803(4), Fla. Stat. While the statements attributed to M.M. in her therapists’ notes may not be hearsay, they are not considered in this case for the truth of the matter asserted, but simply to show that there are differing statements regarding when M.M. shared her story with others. 2019, through September 10, 2019, a period of time that is much shorter than M.M. testified that she saw her therapist.6 In April 2018, M.M. emailed her employer and told her about the incident. In the emails, she states in part that he “ended our session by asking me to omit this portion of the treatment from my article, as he could lose his license. I did not report the incident, and I wrote the article as he requested, highlighting the benefits of his practice.” As noted above, there was no article after the November 30 session. She also wrote in a follow-up email that “Over the next couple of months, he tried calling/texting me in a friendly way that suggested he viewed us as more than professional acquaintances.” The telephone records do not support M.M.’s statement. M.M.’s employer responded by terminating M.M.’s advertising with Natural Awakenings and providing M.M. with the contact information for an attorney. M.M. filed her complaint with the Department on September 11, 2019, nearly two years after the incident. She did not file a complaint with law enforcement, but upon receiving her complaint, the Department investigator notified the Sarasota Police Department on September 26, 2019. Ultimately, no criminal charges were filed, but the decision of the State Attorney’s Office has no bearing on whether or not there is a basis for discipline in this case. Both M.M. and Respondent had some inconsistencies in their stories. Respondent’s, in large part, appear to be based on the fact that his records for the sessions he had with M.M. were not together, and he did not find the records for the earlier session (i.e., his first manila folder) until after his deposition. As noted previously, clients typically have three to six sessions, so it was not unreasonable for Respondent to assume that he only had one folder for M.M., especially given that the records were requested two years after his 6 It may be that notes related to couple’s counseling were not provided because those notes were not just about M.M. but M.M. and her husband. That does not, however, address the inconsistencies in the timeframes reflected in the notes. last session with M.M. His counsel turned those records over to the Department, but not when requested in discovery, and some of those records were not admitted as a result.7 The Department takes issue with a statement Respondent made about M.M. telling him that she was sexually assaulted in college, stating that there is “no mention of sexual assault, or assault of any kind, in either set of Patient M.M.’s treatment notes.” (Petitioner’s Proposed Recommended Order at 15, ¶ 111). However, given that Petitioner successfully objected to some of Respondent’s records regarding M.M. being admitted into evidence, what is in evidence does not reflect all of the records regarding M.M.’s sessions with Respondent. There can be no finding that the records contain no mention of sexual assault when, as the result of Petitioner’s objections, not all of Respondent’s records are in evidence. The Department also finds Respondent’s records to be untrustworthy because their physical appearance is somewhat different. As noted previously, Respondent writes his notes on manila folders and writes from edge to edge. He testified that when he tried to copy the manila folders for the Department, some of the notes were cut off, so he rewrote what was on the notes and provided them to the Department. There are some minor differences in the notes and in a few places, he wrote the dates as 2019 as opposed to 2017. Given that the records were requested in 2019, such an error is not significant. While the copies of the records are not exact, the differences are extremely minor. Furthermore, the Department points to no statute or rule that requires a massage therapist to have patient records at all, much less one that dictates a format to which they must conform. Most importantly, the Department does not point to any discrepancy that 7 The Department also appears to question Respondent’s and Respondent’s counsel’s good faith regarding these records, stating that Respondent testified that he found the records two to three weeks before the hearing, and yet counsel for Respondent was able to use these records in questioning M.M. in her deposition June 22, 2021. A specific date for when Respondent gave the records to his attorney is not in the record. materially affects Respondent’s account of what happened on November 30, 2017. There are other concerns with M.M.’s account of the incident in addition to those issues listed with respect to the telephone records, discrepancies in dates, and references to an article that was not written. For example, M.M. testified that she has had a great deal of medical procedures performed on her, and she is accustomed to doing what medical professionals ask of her. Kacee Homer and Lisa Caller are character witnesses who testified on behalf of Respondent. Both are healthcare professionals who testified that when a patient is asked to disrobe, they generally do. Ms. Homer, a nurse, said that generally when a patient is asked to disrobe, she leaves the room while the patient is undressing, and if possible, the patient is draped. Here, M.M. testified that Respondent asked her to disrobe, and stood there while she did so. It seems odd that M.M., who writes articles about healthcare, and by her own admission has had several medical procedures in her life and is fairly knowledgeable regarding the medical field, would not at least ask for a drape, or wait for Respondent to leave the room before undressing. M.M.’s description of the cupping and lymphatic drainage also raises more questions than it answers. She testified that while the cup was placed on one breast, Respondent massaged the other with both hands. That means the cup had to remain in place based solely on the suction or pressure provided by the cupping machine. It seems that it would be difficult for the cupping machine to provide enough suction for the cup to remain in place on her breast without causing discomfort or pain, and possibly bruising, but there was no testimony that she found the experience physically painful or it left any discernible marks. Finally, the undersigned is troubled that M.M. would willingly give her home address to a man that she claimed sexually assaulted her. It does not seem plausible that she would so easily provide this type of information to Respondent when it could enable him to make further contact with her. After careful consideration of all of the evidence presented, the undersigned finds that there is not clear and convincing evidence to support a finding that Respondent asked M.M. to disrobe in front of him without providing a drape. There is not clear and convincing evidence that Respondent massaged M.M.’s breasts, buttocks, and groin area, and touched her vagina with his fingertips, all without a valid medical reason. Likewise, there is not clear and convincing evidence that Respondent told M.M. that she had “buns of steel” or that he was a “horny old man.” The evidence failed to establish that Respondent’s conduct toward M.M. constituted sexual activity outside the scope of practice, or an attempt to engage or induce M.M. to engage in such activity.
Conclusions For Petitioner: Dannie L. Hart, Esquire Andrew James Pietrylo, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 For Respondent: Lance O. Leider, Esquire Amanda I. Forbes, Esquire The Health Law Firm Suite 1000 1101 Douglas Avenue Altamonte Springs, Florida 32714
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaints against Terrence Grywinksi, L.M.T., and Terrence Grywinski Massage, be dismissed. DONE AND ENTERED this 5th day of November, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S LISA SHEARER NELSON Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of November, 2021. Dannie L. Hart, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 Amanda I. Forbes, Esquire The Health Law Firm Suite 1000 1101 Douglas Avenue Altamonte Springs, Florida 32714 Kama Monroe, JD, Executive Director Board of Massage Therapy Department of Health Bin C-06 4052 Bald Cypress Way Tallahassee, Florida 32399-3257 Lance O. Leider, Esquire The Health Law Firm Suite 1000 1101 Douglas Avenue Altamonte Springs, Florida 32714 Andrew James Pietrylo, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 Louise St. Laurent, General Counsel Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399
The Issue Should discipline be imposed against Respondent's physical therapist license for violation of Sections 486.125(1)(j), and (k), Florida Statutes (2002), and Florida Administrative Code Rule 64B17-6.001(2)(g), (3)(f) and (3)(h)?
Findings Of Fact Stipulated Facts Petitioner is the state agency charged with the regulation of Physical Therapy Practice pursuant to Chapters 20, 456, and 486, Florida Statutes. Respondent, Snehal Jawaharlai Patel, is a licensed Physical Therapist in the State of Florida, having been issued license number PT 20254. Respondent's mailing address of record is 2601 NW 44th Place, Gainesville, Florida 32605. Respondent was an employee working for Rehab Therapy Works and providing physical therapy services at Timber Ridge in February 2003. Respondent provided services to Patient R.G. while she was a resident at Timber Ridge. Dr. Pares was R.G.'s primary physician as reflected on the Timber Ridge Intake Sheet dated February 15, 2003. The February 17, 2003, Plan of Treatment Mr. Patel prepared was approved and signed by Dr. Pares on February 17, 2003. Dr. Cannon's April 14, 2003, correspondence to Timber Ridge indicates that Ms. G's patella was reduced and well- aligned on her February 25, 2003, office visit. The February 25, 2003, office note of Dr. Cannon indicating no bending of the knee was misfiled by Timber Ridge and was not transcribed by Timber Ridge. Patient R.G.: Her Care On February 10, 2003, Patient R.G. was 76-years old when admitted to Munroe Regional Medical Center (MRMC) in Ocala, Florida. The patient was brought to the emergency room at that facility having slipped in a puddle at Langley Medical Center causing her to fall on her right knee. X-ray findings at MRMC revealed a right patella fracture. Patient R.G. was treated by Odest Frank Cannon, Jr., M.D., an orthopedic surgeon. On February 12, 2003, Dr. Cannon addressed the patient's condition by performing a right patella open reduction internal fixation (ORIF). On February 15, 2003, Patient R.G. was transferred from MRMC to Timber Ridge Nursing and Rehabilitation Center (Timber Ridge) in Ocala, Florida, for rehabilitation. The nature of the rehabilitation to be provided at Timber Ridge was in relation to speech therapy, physical therapy, occupational therapy and management of medical care. Principally, the patient was placed at Timber Ridge to receive physical therapy following the knee surgery. When Patient R.G. was referred to Timber Ridge by Dr. Cannon, it was pursuant to the Physicians' Referral Form 3008 (Form 3008), establishing what Dr. Cannon had in mind by way of physician's orders, guidance in caring for the patient at Timber Ridge. The physician's referral was faxed to Timber Ridge on February 15, 2003, and bore Dr. Cannon's signature. In the pre-established format, Form 3008 refers to physical therapy where it reflects Dr. Cannon's comments and execution as follows: PHYSICAL THERAPY: [ ] New Referral [x] Continuation of Therapy - Assist SLR Walker gait - TDWB R leg TREATMENT GOALS: (Please Check) Frequency of Treatment _ Sensation Impaired [ ] Yes [ ] No Restrict Activity [ ] Yes [ ] No [ ] Stretching [ ] Coordinating Activities [ ] Progress Bed to Wheelchair [ ] Passive ROM [ ] Non-weight Bearing [x] Recovery to Full Function [x] Active Assistance [x] Partial Weight Bearing [ ] Wheelchair Independent [x] Active [ ] Full Weight Bearing [ ] Complete Ambulation [ ] Progressive Resistive Precautions: [ ] Cardiac Other Segismundo Pares, M.D., is a family-physician who was employed at Timber Ridge when Patient R.G. was treated. Dr. Pares as a family-physician is licensed in Florida. He is board-certified in family practice, geriatric medicine and hospice and palliative care. In his time at Timber Ridge, he was assigned to manage the medical problems that patients at Timber Ridge may have experienced, such as cardiac disease, lung disease, kidney disease, etc. The orthopaedic condition for patients undergoing rehabilitation at Timber Ridge was the responsibility of a physiatrist, a rehabilitation doctor at Timber Ridge, in conjunction with specialists in physical therapy, occupational therapy and speech therapy. The physiatrist was also involved in other matters of rehabilitation. The physiatrist at Timber Ridge was a Dr. Scott. Dr. Pares relied on Dr. Scott as a physiatrist to attend weekly team meetings, during which Patient R.G.'s physical therapy needs would be discussed. His expectation was that Dr. Scott would address any problems in providing physical therapy to the patient. For the most part, Dr. Pares primarily managed medical care for patients. But he had overall oversight over patient care. In his oversight role, Dr. Pares' plan of treatment for physical therapy in relation to Patient R.G. involved certifying the appropriateness of that therapy, relying upon Respondent who had produced the plan of treatment in that discipline. At present Dr. Pares has no recollection of Patient R.G. while she was at Timber Ridge. Another form of orders established in providing patient care at the facility, was telephone orders or facsimile orders from outside health care practitioners. Dr. Pares as the attending physician at Timber Ridge was responsible for signing off on those orders after review. This process did not involve conversations between Dr. Pares and the health care provider who initiated the telephone order or facsimile order. In addition, Dr. Pares would give his own telephone orders concerning patient care. One of the telephone orders signed off by Dr. Pares was dated February 17, 2003. It refers to: "PT clarification order: PT 5X weekly X 4 weeks for therapy, gait transfer, safety training, neuromuscular . . . " and other matters that Dr. Pares could not interpret at the hearing. The complete clarification order written down by the Respondent stated: "PT Clarification Order: PT 5 x weekly x 4 weeks for therex, gait transfer, safety training, neuromuscular reeducation & modalities PRN." Respondent signed the notations. Dr. Pares signed this outside telephone order on February 20, 2003, as the reviewing authority. Dr. Pares has no recollection of conversations with other persons concerning that telephone order. Respondent wrote the details of the February 17, 2003, telephone order on the form maintained at Timber Ridge in relation to Patient R.G. Dr. Pares relied upon Respondent when signing the telephone order under Respondent's recorded information, without knowledge of where the instructions originated that established the substance of the telephone order received on that date. Respondent's role in that act will be explained. Respondent's Treatment of Patient R.G. After he was licensed as a physical therapist in Florida in 2002, Respondent began his practice. In February 2003 when he provided treatment to Patient R.G., he was a staff physical therapist at Timber Ridge. His duties at that facility were to direct clinical care provided by his assistant, after evaluation and assessment of patients needs, as well as provide treatment and physical therapy to the patients. On February 15, 2003, when Patient R.G. came to Timber Ridge, Respondent's interpretation of the orders from Dr. Cannon on Form 3008 in the physical therapy section, was "Assist with straight leg raise (which is a separate clause), walker gait, touch down weight-bearing right leg, active assistive range of motion, active range of motion, also partial weight-bearing and recovery to full function." These orders were in view of Dr. Cannon's primary diagnosis set forth in the Form 3008 pertaining to a patella fracture, with ORIF on the patient's right knee. Respondent observed that the Form 3008 did not list any precautions in addressing the patient's physical therapy needs. Based upon the information set forth in the Form 3008 Respondent proceeded with the belief that Dr. Cannon expected that the physical therapy for Patient R.G. immediately begin with the performance of active range of motion. This was in keeping with Respondent's experience with this type of patient. At the time of hearing, the Respondent had dealt with approximately a dozen cases in provision of physical therapy to patients with this condition. Nothing in the Form 3008 from Dr. Cannon, pertaining to physical therapy, created an impression in Respondent's mind that he should have not performed range of motion exercises on Patient R.G. There was a question in Respondent's mind concerning the weight-bearing status of Patient R.G., a separate consideration from the question of active range of motion. Respondent addressed the weight-bearing status question by seeking clarification from Dr. Cannon. When Respondent called Dr. Cannon to clarify the weight bearing status, he took the opportunity to make certain of other aspects of the orders previously given by Dr. Cannon, should there be an error of perception concerning other items set forth in Form 3008 pertaining to the patient physical therapy. On February 17, 2003, Respondent wrote the note in the patient's chart concerning Dr. Cannon's physician's telephone order. The note refers to the "PT clarification order" and the expectation that the patient have "therex." Respondent intended by his entry in the patient chart, that he understood Dr. Cannon's orders to include range of motion. The note on the clarification order does not specifically refer to the term "range of motion." It does not specifically refer to "weight bearing," the issue which prompted the call for a clarification order. Respondent concedes that the term "therex" has a number of possible definitions when addressing types of therapeutic exercise. After receiving the clarification order from Dr. Cannon, Respondent prepared a plan of treatment for Patient R.G. It called for active range of motion exercises to be performed by the patient, increasing the range over time. Leslie Sutack, a physical therapy assistant supervised by Respondent provided the physical therapy to Patient R.G. Ms. Sutack's efforts were overseen by Respondent on a daily basis. Respondent was in the same room while Ms. Sutack provided physical therapy to Patient R.G. Dr. Pares signed the plan of treatment for Patient R.G. in relation to physical therapy. Dr. Scott was aware that Patient R.G. was receiving physical therapy that included range of motion. On April 9, 2003, Respondent became aware that Patient R.G. had seen Dr. Cannon earlier and that Dr. Cannon's order was for no range of motion on the part of the patient. Respondent was unaware of this choice by Dr. Cannon prior to that date in April 2003 because of an institutional error at Timber Ridge, in which Dr. Cannon's order against range of motion had been misplaced. Ordinarily, Dr. Cannon's order would have been provided to the physical therapy department at Timber Ridge where Respondent was employed. The order from Dr. Cannon was dated February 25, 2003, prohibiting range of motion therapy. Without awareness, Respondent preceded with range of motion treatment from February 15, 2003 until the April 2003 date based upon his understanding of Dr. Cannon's February 15, 2003, orders in the Form 3008 for Patient R.G. Mike Mandarino was the director of rehabilitation at Timber Ridge while Patient R.G. was undergoing treatment. He has experience with orders from physicians at MRMC for patient care after transferring to Timber Ridge. The orders would be provided on the Form 3008. Absent an addendum to the Form 3008 by the referring physician, Timber Ridge personnel would use the Form 3008 as controlling when determining the doctor's choices for treatment. Mr. Mandarino explains that Dr. Pares' role at Timber Ridge at the time was that as the person responsible for the overall patient care. Dr. Scott oversaw rehabilitation received by a patient. In his testimony, Mr. Mandarino confirmed that Dr. Cannon's February 25, 2003, order prohibiting range of motion for Patient R.G. had been misfiled at Timber Ridge. Expert Opinion Dana Lameier is licensed in Florida as a physical therapist. She has been licensed for 14 years. She earned a Bachelor's degree in physical therapy from the University of South Alabama. She also holds a master's degree in health care administration from Webster University. She actively practices physical therapy. On occasion she has served as a teacher in physical therapy. She had been an adjunct instructor for Pope Community College. Ms. Lameier's present position is as Director of Rehabilitation at Osceola Regional Medical Center. She is responsible for supervising the therapy services provided in the hospital and through the outpatient services in that facility. Those therapy services include physical therapy. Ms. Lameier supervises three physical therapy assistants. She treats patients in the hospital setting and as outpatients. Ms. Lameier has familiarity with the expectations for documentation of services provided by a physical therapist. She gained that understanding through her formal education, continuing education, reading of books, on the job training, and through the Joint Commission on Accreditation of Health Care Organizations (JACHO). Ms. Lameier is familiar with the standards of practice for physical therapists in Florida. She is familiar with the standard of care for physical therapists in addressing orthopaedic cases. Ms. Lameier is familiar with the circumstances of patients who are dealing with recovery from knee surgery, this through her schooling and her work experience, involving somewhere between 20 and 50 cases. Ms. Lameier is uncertain concerning the number of knee rehabilitation patients that she has assisted who have undergone ORIF. Although Ms. Lameier is not certain of the number of patients she has treated following ORIF of the petalla, she agrees that it would be less than 20 patients. The nature of her work done in physical therapy has involved extensive association with orthopedic surgeons. Concerning Patient R.G., Ms. Lameier understood that the patient had a severely comminuted fracture. In addressing rehabilitation for that type of surgery, Ms. Lameier believes that full recovery of the function is expected in six months. Bone healing would take place within six to eight weeks. In addressing a person who had undergone ORIF, before providing physical therapy, Ms. Lameier would wish to know the medical history, such as problems with diabetes, osteoporosis, opteopenia, medications taken by the patient and other matters that might influence the rehabilitation. Age is a factor that enters into the discussion because elder patients heal more slowly and tend to have more medical issues. According to Ms. Lameier, when addressing physical therapy for a patient, the therapist, like other health care professionals, needs to be concerned that no harm befall the patient. If there is a question concerning the approach to care, Ms. Lameier would take a more conservative approach until certain of the underlying status of the patient. Ms. Lameier was accepted as an expert in the standard of care expected of physical therapists practicing in Florida. Ms. Lameier is familiar with the requirements of a plan of a treatment for a patient undergoing physical therapy. Following an evaluation of the patient's condition, consistent with the requirements of law, the physical therapist prepares a plan that lists the short-term and long-term goals for the patient. The plan includes the interventions that are involved with the care, the modalities to be used and a discharge plan. The physical therapist is responsible for creating the plan of care based upon his or her judgment. In performing the evaluation leading to the plan of care, a review of documents pertaining to the patient is made. Tests are performed to ascertain the patient's strength, balance, potentiality for range of motion, all directed toward gaining an impression of the patient's ability to perform physical activities. The plan of care may be changed to address the patient's status at a given time. The plan of care may be referred to as a plan of treatment, as it was in Patient R.G.'s case. According to Ms. Lameier, in relation to telephone orders, the physical therapist is expected to discuss the order with the physician, physician assistant, or nurse practitioner who gave the order and read back the order once the physical therapist has written it down. The written information concerning the order recorded by the physical therapist would reflect the name of the practitioner who gave the order and the physical therapist, with the physical therapist's signature affixed. In reviewing the plan of treatment created by Respondent to address Patient R.G.'s condition, Ms. Lameier commented on information available to the Respondent before he created the plan of treatment. To arrive at her opinions concerning the care Respondent provided Patient R.G., Ms. Lameier reviewed documents from Timber Ridge, MRMC, documentation from Dr. Cannon's office, and certain affidavits. Part of that information came from the Form 3008 created by Dr. Cannon. Ms. Lameier expressed the opinion that Respondent did not meet the standard of care expected of him in preparing the plan of care for Patient R.G. She arrived at this opinion based upon her knowledge of the Form 3008 for the patient, her training as a physical therapist, and basic protocols, for what she describes as the orthopedic process. In her opinion, when you have a patella fracture, such as the case at issue, which she again describes as a severely communited patella fracture, the standard of care is to leave the knee in extension until it is radiographically demonstrated that bone healing is taking place. As a physical therapist, Ms. Lameier believes that the bone healing in a healthy individual generally requires 6 to 8 weeks. In an elderly person with diabetes, and osteoporosis it may take longer, as with Patient R.G. Ms. Lameier mentions the protocol for immobilization of the knee as 3 to 6 weeks in that case. Ms. Lameier's opinion concerning Respondent's care provided Patient R.G. is in recognition of the need for Respondent to practice with the level of care, skill and treatment recognized by a reasonably prudent similar physical therapist, as being acceptable under similar conditions and circumstances. Ms. Lameier does not believe that the Respondent met the standard of care in that he was not knowledgeable of the basic protocols for bone healing and of the orthopedics involved with Patient R.G.; that he performed a range of motion early and without specific recommendation from the orthopedic surgeon, and that his choices could have caused harm or failure of the device that was created to hold the patella together. Respondent had identified range of motion as a goal for Patient R.G. to be carried out by the physical therapist assistant. Ms. Lameier thinks this was inappropriate given the severity of the knee injury experienced by the patient and that the physical therapy was undertaken prematurely. In describing the duties of the doctor and the physical therapist, the referring physician makes the diagnosis for the patient and the physical therapist determines the appropriate rehabilitation to be provided in view of the diagnosis, according to Ms. Lameier. In this example, the physician's diagnosis was fractured patella and the physical therapy treatment that Respondent was to provide was a response to the patient's difficulty walking. Ms. Lameier expressed the opinion that Respondent failed to properly interpret the physician's referral in Patient R.G. Had there been some question or uncertainty on Respondent's part, he should have contacted the physician, the physician assistant, or the nurse practitioner associated with the physician. Ms. Lameier believes that Respondent should have made the physical therapy assistant under his supervision aware of special problems or cautioned that person of special problems or contraindications for Patient R.G., that might limit her range of motion because of the surgery that the patient had undergone. In Ms. Lameier's opinion, having failed to properly interpret the physician's referral in Form 3008, Respondent did not follow up for specific clarification of that referral. He then created a plan of care to utilize what Ms. Lameier refers to as "pretty aggressive range of motion for something that has a protocol of general immobility initially." In addition, Ms. Lameier expressed the opinion that Respondent did not document clearly the precautions, special problems, or contraindications that were involved in the diagnosis. There is a requirement for documentation of contraindications in Ms. Lameier's opinion. Ms. Lameier's reading of Dr. Cannon's instructions in the Form 3008 for physical therapy, is that Dr. Cannon calls for continuation of therapy; assists with SLR, referring to straight leg raises; walker gait; and TWB, referring to touchdown weight- bearing on the right leg. More specifically, the straight leg raise would mean lifting the leg straight up with no bend at the knee, with the pivot point being at the hip. The reference to assist with straight leg raise is describing circumstances after a patella fracture or an injury to the patella. There is a weakness in the quadricep muscle that would prohibit being able to lift the leg independently, so assistance is required. On the subject of any orders that Dr. Cannon gave concerning active range of motion for Patient R.G., Ms. Lameier expressed the belief that the physician included in his treatment goals for active assist movement and active movement, referring to the assist with the straight leg raise. The check off of the word "active" meant active range of motion that the therapist does not participate in. While the Form 3008 could be interpreted as an order to begin an immediate active range of motion for Patient R.G., Ms. Lameier does not believe that it would be a range of motion to the knee. The straight leg raise is a hip exercise. The reference within the Form 3008 to "active assistance" pertained to assistance with the straight leg raise, in her view. Recognizing precautions and contraindications related to the underlying diagnosis for Patient R.G., Ms. Lameier does not believe that Dr. Cannon would ask a physical therapist to perform active range of motion to the knee. This in connection with the reference to assisting with the straight leg raise, meaning that the doctor would like active assistance during those exercises progressing to active range of motion. Ms. Lameier acknowledges that a physical therapist might form a different interpretation of Dr. Cannon's orders but any question about active range of motion to the knee to commence immediately, would raise a "red flag" that would cause her to contact the physician to clarify the order, if that were the interpretation arrived at. However, if a physician wanted to inform a physical therapist of precautions for the patient, such as not bending the knee or keeping the knee immobile at all times, Ms. Lameier would "hope" that it would be stated in the Form 3008. That would be her expectation. No precautions were indicated by Dr. Cannon in the Form 3008 in the case involving Patient R.G. Ms. Lameier's reading of the reference to walker gait, is that when the patient walks she uses a walker and that she only puts her toe down for weight bearing, to be used as a balance on the right leg side. The reference to walker gait does not mean bending the leg, according to Ms. Lameier's interpretation of Dr. Cannon's orders. TWB does not mean bend the leg. Walker gait - TWB does not mean bend the leg. The box that is checked for "active assistance" to be provided Patient R.G., in Ms. Lameier's interpretation, means that the therapist would provide some of the work, in that the patient is unable to do it independently. This reference does not refer to range of motion, nor to the expectation that Patient R.G.'s knee be bent, as Ms. Lameier perceives it. In the box marked "active" in relation to physical therapy to be provided Patient R.G., it is interpreted by Ms. Lameier to mean that the physician wanted the patient to progress toward active movement. As Ms. Lameier comments, "So the straight leg raise needs active assistance to begin; but we would hope that as she recovers and gains more function and strength, that she would be able to perform those actively, meaning the therapist would not need to assist with the movement." According to Ms. Lameier in her understanding of the box marked "partial weight bearing," this would mean " . . . approximately 50 percent of the weight . . . " Ms. Lameier remarks, "and again, the treatment goal when she started out as touch down weight-bearing, meaning just her toe down for balance and the goal being that she would progress to partial weight- bearing." Finally, there is a reference in the physical therapy section in Form 3008 for Patient R.G. checked in the box as "recovery to full function." This is understood by Ms. Lameier to be a long-term goal for the patient to return to full function, live independently, as she had prior to the injury. In commenting on the February 17, 2003, clarification order, Ms. Lameier's interpretation is that it called for five times weekly times four weeks for therex, gait transfer, safety training, neuromuscular-education and modalities PRN, as signed by Respondent. It was also signed by Dr. Pares. Ms. Lameier refers to this as a "standard clarification order" that is required for every patient in the skilled nursing facility. In the sequence, the physical therapist must make certain that there is an initial order for physical therapy, evaluation and treatment, followed by the performance of an evaluation, creation of a plan of care and then a clarification order, which includes all the interventions in the plan that the therapist would use. In her reading, Ms. Lameier does not believe that the February 17, 2003, clarification order makes mention of weight-bearing status pertaining to Patient R.G., nor does it contain any direction on performing bending of the knee exercises. Ms. Lameier's emphasis on the February 17, 2003, telephone order was that it did not specify or confirm active range of motion for Patient R.G. It did not include an indication or directive to bend the knee to perform knee exercises involving bending of the knee; and it did not comment on weight-bearing. Her interpretation of "therex" is that it is a broad term intended to refer to therapeutic exercises, everything from aerobic exercises, stretching, strength exercises, range of motion, etc. The reference to the term in this case is not apparent as to the exercise(s) expected to be performed by Patient R.G., according to Ms. Lameier. Ms. Lameier expressed the opinion that Respondent failed to ask for clarification or contraindicators for Patient R.G., in that she finds no indication in the patient chart that supports that Respondent made contact with the physician, or others on the physician's staff to make those determinations. Assuming that Respondent called the orthopedic physician to receive clarification with regard to weight bearing and range of motion, Ms. Lameier did not find documentation in the Timber Ridge records to reflect receipt of a clarification order on those subjects. In her opinion, to be an acceptable clarification order it needs to be written verbatim. In expressing her opinion concerning the comminuted fracture, Ms. Lameier acknowledged that information provided to Timber Ridge only referred to a right patella fracture with ORIF. Concerning her comments on the comminuted fracture, the reference is out of the operative record or report from Dr. Cannon which refers to "the inferior pole was comminuted . . . ." That report was rendered on February 10, 2003. No indication of precautions concerning the fracture were provided prior to February 25, 2003, the physician's note of February 25, 2003, information not made known to Respondent until April 2003. The misfiled note from Patient R.G.'s chart maintained by Dr. Cannon, dated February 25, 2003, refers to "no bending of RLE." The RLE was understood to mean right lower extremity. John Hisamoto is a physical therapist. He was licensed in Florida in 1981. He has practiced physical therapy in Florida since that time. At present Mr. Hisamoto practices at Proactive Physical Therapy. He has been in that position for 14 years. Mr. Hisamoto has experience treating patients who have suffered knee injuries. He has treated in excess of 5,000 who were seen following knee surgery. Mr. Hisamoto is an instructor at the University of South Florida, where he teaches therapeutic rehabilitation and modalities. Mr. Hisamoto acts as a consultant to a number of professional sports teams: the New York Yankees (baseball), the Tampa Yankees (baseball) and the Tampa Bay Lightning (hockey). More specifically Mr. Hisamoto is familiar with the protocol when treating a fractured patella with ORIF, such as experienced by Patient R.G. Mr. Hisamoto was accepted as an expert in physical therapy to offer opinion testimony. In connection with the physical therapy to be provided a patient with that condition, the patient has undergone a reduction in the fracture to improve the congruency in the joints and to hasten bone healing. There is the effort to improve the capacity to perform early range of motion to lessen stiffness and problems associated with the knee. The physical therapy that the patient who has undergone ORIF would be exposed to, could include use of a knee immobilizer to perform some touchdown weight-bearing activities. Here the Timber Ridge treatment plan called for the use of a knee immobilizer on the right knee. The patient is taught to do transfers, how to begin touchdown positions. One of the other considerations in the therapy is the range of motion exercises that the patient is taught to perform. In Mr. Hisamoto's experience, after ORIF, two or three days beyond the operation is allowed for wound healing. Then the range of motion exercises begin. This is a choice made by the physician. From Mr. Hisamoto's experience, the patient will have been put through a full range of motion by the physician at the time of surgery. The full range of motion is through an arc of 0 to 90 degrees. Given the degree of swelling following an injury, the full range of motion within that arc is not immediately available when performing physical therapy. In the case such as Patient R.G.'s early range of motion would be 0 to 30 degrees or 0 to 45 degrees. Mr. Hisamoto's opinion is that Respondent's plan of treatment calling for range of motion increased by 10 degrees in the first two weeks was a very conservative choice, not an inappropriate response to Patient R.G.'s case. Mr. Hisamoto offered no criticism of Respondent's choice to call for clarification of the initial orders on the Form 3008. He finds the initial orders in the Form 3008 provided by Dr. Cannon evident in the diagnosis and the expectation by the physician that what was to occur was the use of active-assist range of motion, the accepted standard of care for ORIF of the patella. In Mr. Hisamoto's opinion, he would have expected any precautions to be set forth in the Form 3008 if Dr. Cannon had that intention. They were not detailed. From Dr. Cannon's notes concerning the operation on Patient R.G.'s knee, Dr. Cannon had confirmed the range of motion in the patient's knee while in the operating room. Dr. Cannon noted that the fracture was very stable. Under those circumstances, Mr. Hisamoto believes that it would be appropriate for the patient to be exposed to early range of motion exercises by the physical therapist. In that connection, Mr. Hisamoto described the pursuit of active range of motion exercises as depending on the physician who performed the surgery and any complications that may have been experienced in relation to the wound, the incisional site. Active range of motion would occur in the first week, taking into account the need to pay attention to the incisional site. That is what transpired in Respondent's care provided Patient R.G. as to timing. Mr. Hisamoto expressed the opinion that Respondent met the standard of care in providing services to Patient R.G. consistent with what would be expected of a physical therapist in Florida. This included necessary communication by Respondent with physicians involved with Patient R.G.'s treatment. Finally, concerning the clarification order notations made by Respondent on February 17, 2003, Mr. Hisamoto expressed the opinion that there are multiple definitions that may be ascribed to the term "therex". Marty Huegel is a licensed physical therapist in Florida. He received his license in 1979. Since that time he has consistently practiced physical therapy. Currently Mr. Huegel is the Director of Physical Therapy for Quest Physical Therapy in Gainesville, Florida. He also serves as the Director of Rehabilitation for the University of Florida Athletic Association. Mr. Huegel has experience treating patients with knee problems. He has treated approximately 6,000 knee patients following their surgery. Mr. Huegel is familiar with the protocol for treating a fracture of the patella with ORIF, such as the case of Patient R.G. Mr. Huegel has had what he describes as "quite a few" cases involving patients in the age group represented by Patient R.G. Mr. Huegel was received as an expert in the field of physical therapy to offer opinion testimony. Mr. Huegel expressed his opinion concerning the appropriate protocol or standard of care for patients such as Patient R.G. when addressing an ORIF after patella fracture by provision of physical therapy. The primary concern is that stabilization of the fracture be achieved. The surgeon will provide assurance to the physical therapist through the operative note that the patient has been taken through the range of motion following the surgery. This is in anticipation of the need to move the knee to avoid stiffness. Ordinarily the only thing that would prohibit the movement of the knee would be wound issues. Those wound issues would be more prevalent in older patients. If the wound is closed and appears to be healing, then the physical therapist is interested in immediate motion for the patient in the knee. With some patients the movement of the knee can occur the day after surgery. In older patients it may be a few days before that would be an appropriate choice, principally in relation to wound management. In the elderly patients Mr. Huegel has a concern that the range of motion exercises begin early because those patients, if they experience stiffness, can become disabled. Mr. Huegel agrees with Respondent's choice to begin range of motion physical therapy for Patient R.G. on February 17, 2003. Mr. Huegel refers to the immobilizer that was prescribed for Patient R.G. He explains that when physical therapy is being provided to the patient, the immobilizer would be removed in the setting where physical therapy was being provided. Otherwise the patient would utilize the immobilizer. Mr. Huegel does not believe that it would be the appropriate standard of care to wait for radiographic evidence of healing before range of motion exercises are undertaken. That would be important if the surgeon were concerned that there was not the expected fixation in the fracture. Mr. Huegel would expect the physician to mention the problem with fixation if it were there and indicate that the knee not be moved for a period of time or limit the range of motion and its arc. In Patient R.G.'s case, the operative report was to the effect that the fracture was stable as Mr. Huegel understood the circumstances. That information would have been relied upon by Mr. Huegel in his plan of care, consistent with his belief that the patient was a proper candidate for early range of motion exercise. In reviewing the Form 3008 in the section pertaining to physical therapy, Mr. Huegel expressed his understanding of Dr. Cannon's orders. His interpretation was that the doctor expected assistance with straight leg raises. Dr. Cannon wants the patient to use a walker for gait. The form in it depiction of the goals refers to the "active" box being checked and what Mr. Huegel refers to as "assisted active" concerning range of motion. The placement of those terms on the form under the term for "passive range of motion (ROM)," leads him to conclude that the doctor was absolute in his expectation that the knee be moved right away. Nothing in the doctor's orders found on Form 3008 led Mr. Huegel to believe that the physician did not intend that immediate active range of motion begin for Patient R.G. Mr. Huegel considers the matter set forth in the Form 3008 pertaining to physical therapy, to constitute the original order for physical therapy prepared by Dr. Cannon. Mr. Huegel would not have sought clarification from Dr. Cannon of the information set forth in the physical therapy section to Form 3008. He believes the explanation in the Form 3008 is straight forward enough. Mr. Huegel believes that he could have prepared a plan of treatment based upon the information set forth in the physical therapy section to the Form 3008 related to Patient R.G. Mr. Huegel reviewed the plan of treatment prepared by Respondent for Patient R.G. He believes that that plan was appropriate, with the exception that he deemed it to be conservative in its reference to as goal of 10 degrees of range of motion. Mr. Huegel would have extended the range of motion and the arc 30 to 40 degrees. Otherwise Mr. Huegel offered no criticism of Respondent's plan of treatment. This reference is to the expectation of physical therapy within the first two weeks as to the arc or range of motion. Mr. Huegel does not believe that the treatment provided by Respondent for Patient R.G. was too aggressive. Mr. Huegel does not believe that there were any precautions that Respondent should have taken in treating Patient R.G. that were not taken. Respondent properly documented the treatment of Patient R.G. in Mr. Huegel's opinion. In Mr. Huegel's opinion, Respondent practiced physical therapy with the level of care, skill and treatment recognized by a reasonably similar physical therapist as acceptable under similar conditions and circumstances. Mr. Huegel expressed the opinion that Respondent communicated appropriately with physicians regarding the patient's treatment. Mr. Huegel expressed the opinion that Respondent properly interpreted the orders received from Dr. Cannon and followed those orders. Having considered the opinions of the experts in view of the allegations of the Administrative Complaint and facts found, the opinions expressed by Mr. Hisamoto and Mr. Huegel that Respondent practiced with the level of care, skill and treatment recognized by a reasonably prudent similar physical therapy practitioner as being acceptable under similar conditions and circumstances is more persuasive. Their opinion that Respondent interpreted and acted in accordance in the orders from Dr. Cannon, known to Respondent, is accepted. Their opinion that Respondent participated appropriately, as part of the collaborative effort to treat Patient R.G. is accepted. Based upon their opinion, nothing in the Respondent's conduct in relation to the treatment provided Patient R.G. is considered beyond the opportunity provided under his license or outside his competence to perform. Prior Disciplinary History There was no indication of prior discipline imposed against Respondent's physical therapist license.
Recommendation Based upon the findings of facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Counts One and Two to the Administrative Complaint. DONE AND ENTERED this 2nd day of August, 2007, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 2nd day of August, 2007. COPIES FURNISHED: Lynne A. Quinby-Pennock, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Donna M. Keim, Esquire Bice Kohl Law Firm, P.L. Post Office Box 1860 Alachua, Florida 32616 Susie K. Love, Executive Director Board of Physical Therapy Practice Department of Health 4052 Bald Cypress Way, Bin C05 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact At all times relevant hereto Respondent was licensed as a physical therapist assistant in Florida. He has held a physical therapist assistant license for approximately 18 years and worked approximately five and one-half years as an orthotec. In June 1985, Respondent was employed by Southeast Rehabilitation Services (Southeast) as a physical therapist assistant. On or about June 3, 1985, a patient had been transferred to Southeast with one knee immobilized. The physician's order transferring the patient to Southeast directed the immobilizer be removed. When Respondent provided treatment to the patient, he removed the immobilizer without first having received written instructions from the physical therapist to do so. On or about June 11, 1985, Respondent provided treatment to a patient at Southeast which consisted of strengthening exercises using small weights, when the physical therapist orders called only for range of motion exercises without weights. Respondent had been working at Southeast only a short while and had been taken on rounds by another physical therapist assistant. When Respondent gave treatment to this patient on his own, he couldn't locate the patient's chart and relied on his memory to provide treatment. He thought he remembered the other physical assistant gave this patient strengthening exercise, but this was incorrect. Respondent readily acknowledged committing the violations alleged, but contended the June 11 incident was a simple mistake and that he had followed physician's orders at other physical therapy centers at which he had worked, without waiting for written orders from the physical therapist.
The Issue Whether the subject Endorsement to an HMO benefit contract language is ambiguous and, if so, whether the subject subscriber is entitled to additional benefits because of the ambiguity.
Findings Of Fact At all times pertinent to this proceeding, T. C. was enrolled as a participant in the group HMO contract issued by Petitioner to a construction company for the benefit of its employees and their eligible dependents. The HMO contract consisted of a Group Health Services Agreement, a Member Handbook, and any endorsements to either document. The Member Handbook and an Endorsement to the Member Handbook in September 1999 are the documents pertinent to this proceeding. In those documents, Petitioner is referred to as HOI. Prior to September 1999, paragraph 1.08 of the schedule of benefits section of the Member Handbook (page 42) provided, in pertinent part, as follows. 1.08 Short-term physical, speech, or other therapies designed to correct functional defects which remain after a catastrophic illness or crippling injury, . . . when medically appropriate for the treatment of a Condition, provided that significant improvement of the Member's Condition, as determined by the Medical Director of HOI, is expected within two months from the first date of treatment. This benefit is limited to a maximum of two months of treatment per Member per Calendar Year. The subject HMO contract was amended in September 1999 by the Endorsement styled "Endorsement: Rehabilitation Services (85999.459/99SR)" 3/ provided, in pertinent part, as follows: All prior references to short-term physical, speech, or other therapies in the Group Health Services Agreement and/or Member Handbook and any Endorsement attached thereto is [sic] hereby deleted and replaced with the following new subsection entitled Rehabilitation Services: Rehabilitation Services Prescribed short-term inpatient and outpatient rehabilitation services [are] limited to the therapy categories listed below. In order to be covered: (1) HOI must review, for coverage purposes only, a Rehabilitation Plan submitted or authorized by the Member's 4/ Primary Care Physician; (2) HOI must agree that he Member's Condition 5/ is likely to improve significantly within 62 days from the first date such services are to be rendered; (3) such services must be provided to treat functional defects which remain after an illness or injury; and (4) such services must be Medically Necessary 6/ for the treatment of a Condition. Rehabilitation Plan means a written plan, describing the type, length, duration, and intensity of rehabilitation services to be provided to a Member with rehabilitation potential. Such a plan must have realistic goals which are attainable by the Member within a reasonable length of time and must be likely to result in significant improvement within 62 days from the first date such services are to be rendered. The Rehabilitation Plan must be renewed every 30 days. Outpatient Outpatient rehabilitation services are limited per Member per Condition to the number of Medically Necessary rehabilitation services which are received by the Member within the consecutive 62-day period which immediately follows the first date that the Member begins such services. Outpatient rehabilitation services are limited to the therapy categories listed below: Speech Therapy: . . . Physical/Occupational Therapy: Services of a Physical Therapist or Occupational Therapist or Massage Therapist for the purpose of aiding in the restoration of normal physical function lost due to illness, injury, stroke or a surgical procedure while this coverage was in force. In order for Physical Therapy, Occupational Therapy, or massage therapy to be covered under this provision, such services must be part of an approved Rehabilitation Plan and provided by a provider licensed to render such services. Cardiac Therapy: . . . Inpatient Rehabilitation services of the therapy categories described above provided during a covered inpatient confinement will be covered for the duration of the confinement. T. C. was injured in a fall on December 31, 1999. He sustained a fracture of his left proximal humerus with neurovascular compromise. He underwent surgery to reduce the fracture at St. Mary's Medical Center in West Palm Beach where he remained hospitalized until his discharge on January 10, 2000. Upon discharge, his physicians recommended and prescribed a Rehabilitation Plan which provided for physical therapy on Tuesdays and Thursdays of each week. This Rehabilitation was reviewed and approved by Petitioner, effective January 31, 2000. T. C. began receiving rehabilitation services on Thursday, February 10, 2000, from a provider known as Pediatric Therapy. On or about March 24, 2000, Petitioner notified T. C.'s family and Pediatric Therapy that additional physical therapy would not be covered after that date. On Friday, March 24, 2000, T. C.'s mother telephonically filed an expedited grievance with Petitioner requesting coverage for additional physical therapy. As part of her request, she informed Petitioner that although Petitioner's authorization period began on January 31, 2000, T. C. did not commence treatment at Pediatric Therapy until February 10, 2000. Thus, approximately ten days of the authorized period were not utilized. She further informed Petitioner that he had not completed treatment and continued to require physical therapy. Upon review of his treatment dates in relation to the authorization period and consideration of the information provided by his mother, Petitioner approved coverage for a further period of rehabilitation services from Tuesday, March 28, 2000, to April 13, 2000, the date the 62-day period starting February 10, 2000, expired. Petitioner declined coverage for rehabilitation services beyond April 13, 2000, on the basis that the benefits for outpatient therapy under the contract had been exhausted. In its correspondence to T. C.'s mother, Petitioner stated that it was relying on paragraph 1.08, page 42, of the HMO contract. The reference to this provision was an error because the provision had been replaced and superseded by the Endorsement. There was no evidence that T. C.'s family suffered any prejudice because of the erroneous reference in the denial correspondence. The operative language at issue in this proceeding is the language set forth in the Endorsement.
The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations of misconduct set forth in a three-count Administrative Complaint. The Respondent is charged with having violated the following statutory provisions: Sections 458.331(1)(k), 458.331(1)(m), and 458.331(1)(n), Florida Statutes.
Findings Of Fact The Respondent is, and has been at all times material to this proceeding, licensed as a physician in the State of Florida, having been issued license number ME 0059304. The Respondent is an experienced physician, having practiced medicine in several jurisdictions over a period of approximately 24 years. The Respondent is a native of Uruguay, where he studied medicine and graduated from medical school in 1974. English is the Respondent's second language. The Respondent began his private medical practice in the State of Florida in 1990. From January of 1992 until February 3, 1993, the Respondent treated patients C. P. and F. P.2 on several occasions. Patient C. P. was approximately 90 years old. His wife, patient F. P., was approximately 80 years old. At all times material, patients C. P. and F. P. were Medicare recipients. On January 12, 1993, the patient C. P. appeared at the Respondent's medical office for examination and treatment. On that day the patient C. P. had a number of complaints and concerns. The Respondent interviewed the patient, and obtained a history from the patient that included the fact that the patient had been hospitalized approximately six months earlier for injuries incurred in an automobile accident. The Respondent also examined the patient. Based on the examination of the patient and on the history obtained from the patient, the Respondent concluded that the patient C. P. needed to have some further testing of his heart rhythm. The Respondent ordered a series of tests which were to be performed with a portable Cardiotrace monitor. A total of five such tests were performed. One of the Cardiotrace tests was performed in the Respondent's office. The other four were performed at patient C. P.'s home by a technician employed by and trained by the Respondent. The Cardiotrace monitor equipment transmitted heart rhythm information by telephone line directly to equipment that prepared a tracing of the heart rhythm. A copy of the rhythm tracing was then transmitted to the Respondent by fax transmission. Five such rhythm tracings regarding the patient C. P. were received by the Respondent. The Respondent reviewed and interpreted each of the rhythm tracings. Subsequently, the Respondent billed Medicare for his review and interpretation of each of the five rhythm tracings regarding the patient C. P. The services for which the Respondent billed Medicare in this regard were services that were actually performed.3 Based on the examination of the patient and on the history obtained from the patient on January 12, 1993, the Respondent concluded that the patient C. P. also needed some physical therapy. The Respondent referred the patient C. P. for physical therapy services at the Respondent's medical office. The Respondent prepared a physical therapy plan for the patient C. P. The plan provided for the patient to initially receive physical therapy three days per week for three weeks. The plan also provided for the patient to receive six modalities of physical therapy on each treatment day. The Respondent billed Medicare for providing physical therapy to patient C. P. on January 12, 14, 16, 19, 21, 26, 28, and on February 1 and 3, 1993. For each of these physical therapy sessions, the Respondent billed Medicare for six modalities of physical therapy. These modalities included hot or cold pack therapy, therapeutic exercises for thirty minutes, functional activity therapy, ultrasound therapy, massage therapy, and kinetic therapy. The Respondent had two separate rooms in his office dedicated to and equipped for physical therapy. The Respondent had equipment in his physical therapy rooms for all six modalities of physical therapy ordered for the patient C. P. During the time when the Respondent was treating the patient C. P., it was the Respondent's practice to keep separate medical records and physical therapy records for patients who were receiving physical therapy at his medical office. The physical therapy records were kept on forms the Respondent had designed for that purpose. It was also the Respondent's practice at that time to keep the separate records in separate places. The Respondent has not been able to locate any records of any physical therapy services that were provided to the patient C. P. The Respondent's medical records for the patient C. P. contain only two references to the physical therapy. On January 12, 1993, there is a brief note to refer the patient to the physical therapy department. On February 3, 1993, there is a note to continue physical therapy. There are no other notes specifically referring to the status of or the justification for the physical therapy. Although the patient C. P. sustained injuries in a motor vehicle accident in July of 1992 which caused him to be hospitalized for several days, the Respondent's medical records contain no mention of that accident. The Respondent's records regarding his care and treatment of the patient C. P. are sufficient to justify the testing of the patient's heart rhythm, which was accomplished by means of the Cardiotrace portable monitor. The Respondent's records regarding his care and treatment of the patient C. P. are not sufficient to justify the physical therapy which was ordered by the Respondent.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a Final Order be issued in this case to the following effect: Dismissing Count One and Count Three of the Administrative Complaint on the basis of insufficient evidence, Concluding that the Respondent has violated section 458.331(1)(m), Florida Statutes, a charged in Count Two of the Administrative Complaint, by his failure to keep written medical records justifying the physical therapy for the patient C. P., and, Imposing a penalty for the violation of Section 458.331(1)(m), Florida Statutes, consisting of an administrative fine in the amount of $2,500.00 and a letter of reprimand. DONE AND ENTERED this 25th day of January, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 1999.
