Conclusions THE PARTIES have entered into a Stipulated Settlement Agreement which resolves all disputed issues. A copy of that Stipulated Settlement Agreement is attached hereto as Exhibit “A” and the terms thereof are incorporated into this Final Order. The parties are directed to comply with the terms of the attached Stipulated Agreement. Based on the foregoing, these files are CLOSED. DONE and ORDERED on this the igh day of i) erie , 2014, in Tallahassee, Florida. f 4 . fo bf Ty a f og; . f Vif tK—- L OW ELIZABETH DYDEK, SECRETARY Agency for Health Care Administration St. Lucie County, Florida vs. AHCA Consolidated Case Nos. 13-1169; 13-2372; 13-2593; 14-0498; 14-0499; 14-0500; & Case No. 13-2040 Final Order 1 Filed March 17, 2014 2:45 PM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Beverly H. Smith Assistant General Counsel Agency for Health Care Administration Office of the General Counsel (Interoffice Mail) Gregory T. Stewart, Esquire Carly Schrader, Esquire Nabors, Giblin and Nickerson, P.A. 1500 Mahan Drive, Suite 200 Post Office Box 11008 Tallahassee, Florida 32302 (U.S. Mail) Heather Young, Esquire St. Lucie County, Florida 2300 Virginia Avenue Fort Pierce, Florida 34982 (U.S. Mail) Richard Zenuch, Bureau Chief, Medicaid Program Integrity Finance and Accounting Health Quality Assurance Florida Department of Health St. Lucie County, Florida vs. AHCA Consolidated Case Nos, 13-1169; 13-2372; 13-2593; 14-0498; 14-0499; 14-0500; & Case No. 13-2040 Final Order 2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail or other designated method on this the (iz Ty of Kberh , 2014. Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308-5403 (850) 412-3630/FAX (850) 921-0158 St. Lucie County, Florida vs. AHCA Consolidated Case Nos. 13-1169; 13-2372; 13-2593; 14-0498; 14-0499; 14-0500; & Case No. 13-2040 Final Order 3
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been a physician licensed to practice in the State of Florida, having been issued license number ME 0025685. For 18 years prior to the event complained of herein, Respondent worked at Indian River Memorial Hospital, where he practiced as an anaesthesiologist. Also prior to the event complained of herein, Respondent was a tri- athlete, training in swimming, biking, and running. During the summer of 1992 he competed in five or six tri-athalons and did quite well in his age class. Respondent was also a snow skier. In accordance with his physical fitness values, Respondent does not drink alcoholic beverages or smoke cigarettes. He is also a vegetarian. Peter G. Wernicke is an orthopedic surgeon in the Vero Beach area. After arriving there, he and Respondent became social friends and went on ski trips together. He also became Respondent's treating physician, caring for Respondent when Respondent suffered broken bones, strains, and sprains as a result of his sporting activities. In early winter of 1992 Respondent seriously injured his knee while snow skiing. Respondent discussed his need for surgery with Wernicke after Respondent returned to the Vero Beach area. Wernicke was insistent that he perform Respondent's knee surgery, but Respondent wanted to have the surgery performed by Dr. Richard Steadman in Vail, Colorado, since he believed that Dr. Steadman was probably the best in the world at taking care of that particular kind of knee injury. Wernicke then insisted that Respondent allow Wernicke to perform the knee surgery with Respondent awake, and once the knee was opened up, Wernicke and Respondent would look at it and decide whether it was something Wernicke was able to take care of or if the knee should be closed and Respondent would then go to whomever he wanted to have the surgery performed. Respondent would not agree to that approach since he well understood that opening the knee twice would double Respondent's risk of infection in that injured knee. Up to the time that Respondent left to travel to Vail for his knee surgery, Wernicke maintained that he was not giving Respondent his blessing for having the surgery performed by someone else. Respondent went to Vail and had Dr. Steadman perform the surgery in early December of 1992. Respondent remained in Vail post-operatively undergoing physical therapy which commenced within hours of surgery being completed to increase his chances of obtaining full range of motion with that knee by keeping it moving and preventing scarring. Respondent returned to Vero Beach on December 13 and returned to work the next morning, working a full shift that day. After his shift was over, he drove himself to Orlando for a meeting. While in Orlando, Respondent began to have very severe pain and swelling in his knee. He drove back to Vero Beach, arriving at his home at approximately 9:30 p.m. Upon his arrival, he telephoned Wernicke, told Wernicke he was in a great deal of pain, and begged Wernicke to help him by meeting him at the hospital and looking at Respondent's knee. Wernicke told Respondent that he would not go to the hospital to meet Respondent, that Respondent should elevate his knee and apply ice, and then see Wernicke in the morning. Respondent elevated his leg and applied ice for the next few hours. By approximately midnight the pain had become "absolutely excruciating," unlike any Respondent had experienced with all of his broken bones and other sports injuries. Although Respondent's tolerance for pain was high enough that he had gone through the surgery performed by Dr. Steadman without pain pills and had tolerated getting on an exercise bike 12 hours after that surgery, Respondent knew that he could no longer endure the pain, that he had a serious problem with his post-operative knee, and that he needed to get help immediately. Respondent got himself up with crutches and got in the car to drive himself to the emergency room. While driving, he telephoned the emergency room at Indian River Memorial Hospital and told the staff he was on his way there and asked the name of the orthopedist who was on call. He was advised that Dr. Wernicke was not only on call, but was present in the emergency room at that moment. Respondent told the emergency room staff to tell Wernicke to wait for him. Respondent then called the operating room at Indian River Memorial Hospital and asked if an anaesthesiologist were there so he could get something to relieve his pain. He was told that Dr. Brennan had just finished with surgery and had taken the patient to the intensive care unit. Respondent then asked for two things: (1) to have Dr. Brennan go to the emergency room to take care of Respondent and (2) to bring Respondent's anaesthesia cart to the emergency room. The operating room staff agreed. Respondent's requests resulted from his experience with that hospital's emergency room staff and procedures. He knew he needed medication for his knee and for his pain. He knew that Dr. Brennan was not employed by the hospital and did not have his own anaesthesia cart there. He knew that the emergency room staff were notoriously slow in responding to patient needs or doctor requests. Therefore, over the years, Respondent had learned that whenever he was called to the emergency room, the patient was better served if Respondent took his own anaesthesia cart and supplies with him. As a result of his telephoning ahead, Respondent's arrival was expected. Dr. Wernicke waited for him. Someone took Respondent's anaesthesia cart to the emergency room and placed it next to a stretcher. Dr. Brennan was paged and told that Respondent needed him in the emergency room, and Dr. Brennan went to the emergency room to assist his colleague. When Brennan got there, Respondent had not yet arrived, but Wernicke was present. Brennan told Wernicke he was there to help with Respondent. For whatever reason, Wernicke told Brennan that Brennan was not needed and told him to leave. Before leaving the emergency room, Brennan told Wernicke that if he were needed he would be nearby in the intensive care unit and to please summon him. Respondent arrived at the hospital emergency room on crutches. The emergency room was currently under construction and had no dividing walls or partitions so that it was simply one room in which everyone could see everything occurring. There were no patients in the emergency room when Respondent arrived, but there were three or four nurses and the emergency room doctor at the nurses' station. Respondent went to the nurses' station to be admitted. He was told that he should wait in the lobby and he would be called when they were ready to begin the admission process. Respondent refused to do that, told them he was in excruciating pain, and insisted that he be given the emergency room release form and financial responsibility form to sign and be taken to one of the emergency room stretchers. He was given the forms to sign, which he did, and he was then escorted to the stretcher next to his anaesthesia cart. For the remainder of his time in the emergency room, Respondent remained on that stretcher which was no more than 30 feet from the nurses' station. No chart for his emergency room visit was prepared by the hospital personnel. Further, no one took his vital signs; no one took his blood pressure; no one asked what his problem or complaints were which caused his visit; and no one asked whether Respondent had any allergies or had recently eaten. Respondent lay on the stretcher waiting for Wernicke to return to the emergency room for approximately five minutes. When Wernicke came in, he was wearing a big smile. He remarked to Respondent that Wernicke could see that Respondent had a problem with his knee. Wernicke then gave one swipe across Respondent's knee with an alcohol swab and prepared to jab an 18 gauge needle into the knee to aspirate it, i.e., to drain the fluid. Respondent became terrified and told Wernicke to stop. Respondent's terror was caused by two fears. First, it was apparent that his knee was full of blood. He knew that blood outside of its normal confines is an irritant which causes inflammation and he knew that it was also the perfect medium in which bacteria could grow. He also knew that the risk of infection in his knee was substantial because it was a post-operative knee. Infection in such a knee presents a best-case scenario of a damaged knee and a worst-case scenario of rendering him a cripple, requiring a total knee replacement. Yet, Respondent saw that Wernicke intended to stick the needle into Respondent's dirty knee without even using a Betadine preparation to remove bacteria from the skin. Second, Respondent was in "unbelievable" pain from the significant swelling in his knee. The surgical incisions above and below his knee had ruptured from the pressure caused by the swelling. In order for Wernicke to aspirate Respondent's knee, it would be necessary for him to poke his fingers into the swollen knee area in order to locate the right place to stick the needle, and it was impossible for Respondent to hold his leg still for Dr. Wernicke to palpate, let alone insert the needle in the correct location. Respondent told Wernicke that he needed an I.V. started; that he needed Kefzol, an I.V. antibiotic, to prevent infection; that he needed Toradol intravenously for its anti-inflammatory effect; and that he was in very, very severe pain and needed pain medication so he could hold his leg still for Wernicke to aspirate. Although Wernicke recognized that Respondent was in significant, severe pain, he told Respondent he would agree to the antibiotic and he would agree to the anti-inflammatory, but that he didn't think Respondent needed anything for pain. Respondent's anaesthesia cart was not equipped with I.V. fluids. Someone brought an I.V. bag and set-up. Respondent does not know who brought the I.V. and whether it was on Dr. Wernicke's order or ordered by the emergency room doctor, but Respondent did not order the I.V. brought. No one offered to start Respondent's I.V. for him, and Wernicke did not tell Respondent that Dr. Brennan had come to the emergency room, had been sent away by Wernicke but was nearby, and had told Wernicke to summon him if he were needed. Wernicke kept telling Respondent to hurry up because it was late and he wanted to go home. He told Respondent that they needed to get finished because Wernicke was doing Respondent a favor just by being there. Respondent, while still lying on his stretcher, started his own I.V. Wernicke assisted Respondent by handing him tape for the I.V. since Respondent was performing the task with one hand. Respondent then removed his medication box from the bottom of his anaesthesia cart. He took out an ampule of Kefzol, a dry powder. He took a syringe and drew fluid from the I.V. that was running into him and mixed up that dry powder antibiotic by flushing it back and forth. He then gave the antibiotic to himself. He attempted to delay Wernicke from inserting the needle into his knee until after the antibiotic could circulate through his system and get to his knee before any bacteria was introduced, a process which would take approximately six minutes to complete enough circulations. Respondent next prepped his own knee with Betadine solution while Dr. Wernicke continued to stand there by his side, watching him. Respondent then took an ampule of Toradol, a new anti-inflammatory medication, and gave himself 60 milligrams intravenously, while Wernicke stood and watched. Although that anti-inflammatory medication would also serve to reduce Respondent's pain, Toradol is a slow-acting medication in that regard, having a slow onset but thereafter lasting for a number of hours. Respondent then removed from his medication box a 5 cc ampule of Alfenta. That ampule is a 2 1/2 inch object made of glass with its name in blue lettering on the outside, large enough to read. Alfenta is a Schedule II controlled substance and is a narcotic. Alfenta has a fast onset and a fast offset; it works in 30 to 60 seconds, and its effect lasts for approximately 10 minutes. While Dr. Wernicke watched, Respondent filled a needle and gave himself 1 cc of Alfenta which is a very conservative test dose for a man weighing 190 pounds who is in good condition. Respondent then waited a minute or a minute and a half to see what effect it had on his pain level and trembling leg. It had very little effect. Therefore, Respondent injected an additional 1/2 cc and waited. That additional amount was sufficient. Wernicke watched as Respondent gave himself the Alfenta, standing, as he had been, within inches of Respondent. As he injected the medications, Respondent filled out the chart on his anaesthesia cart, noting the medication, the dosage, and that he was the patient. Respondent then laid back on the stretcher, closed his eyes, and then told Wernicke he was ready. Wernicke then palpated Respondent's knee and inserted the needle to aspirate Respondent's knee. The pressure in his knee was so high that it blew the syringe back. Wernicke commented that he had never before seen that happen and had never seen pressure like that. Wernicke withdrew approximately 100 ccs of fluid from Respondent's knee, commenting that he did not think he'd seen one with more volume. Although initially Wernicke had said that he did not agree that Respondent needed any pain medication, Wernicke totally acquiesced in everything Respondent did to assist Wernicke in treating Respondent. Wernicke accepted Respondent's judgment and watched Respondent execute step by step the course of treatment Respondent said was needed to render proper medical treatment. Wernicke totally agreed and acquiesced with the use of Alfenta as much as he did the antibiotic and the anti-inflammatory as evidenced by Wernicke's own conduct. Wernicke never told Respondent to stop doing Wernicke's work for him. Wernicke never told him not to administer the medications. Wernicke never suggested that he or someone else perform the administration. Wernicke could have easily stopped Respondent who was laying on a stretcher but did not. Wernicke knew that Alfenta was a pain killer and a narcotic. He did nothing to stop or prevent Respondent from injecting a medication Respondent needed. Further, Wernicke continued to treat Respondent after the administration of Alfenta by thereafter performing the aspiration. After he completed the aspiration, Wernicke left. Respondent lay on the stretcher for a little while. The nurses and the emergency room doctor remained at the nurses' station, and there were still no other patients in the emergency room. Respondent asked if someone would bring him a wheelchair so he could leave, and he was told that they were too busy. Respondent took his crutches and hobbled out of the emergency room. The next morning Respondent reported to work for his regular shift which began at 7:00 a.m. After Respondent completed the first case on his shift that day, at approximately 10:30 to 11:30 a.m. he called Haynes McDaniel, the hospital's pharmacist, and told him what had happened the night before, what medications Respondent had used, and that he had used the medications on himself. Respondent said he needed to do whatever paperwork the pharmacist wanted and specifically asked the pharmacist to bill him for the medications he had used. McDaniel told Respondent that there was no problem regarding the Kefzol and the Toradol and that he would simply send Respondent a bill for those medications; however, as to the Alfenta, the pharmacist needed a prescription for his records. McDaniel asked Respondent who the attending physician had been, and Respondent told him that Peter Wernicke was the attending doctor. McDaniel told Respondent to get a prescription from Wernicke for the Alfenta so that the hospital record keeping would be proper. Respondent went to Wernicke and asked him for a prescription for the Alfenta that had been used, and Wernicke refused. Respondent then personally went to McDaniel and told him that Wernicke would not write the prescription and told McDaniel why, i.e., that Wernicke was still mad that Respondent had not considered him good enough to do Respondent's surgery. McDaniel asked Respondent who could write the prescription because Respondent needed a prescription from somebody and Respondent could not write the prescription for himself. Respondent told McDaniel that he had asked Dr. Brennan to be there to give him the pain medication, that Dr. Brennan had never showed up, but that Brennan was in the hospital at the time the medication was administered. McDaniel suggested that Respondent see if Brennan would sign a prescription. Respondent went to Brennan's office and told Brennan exactly what had happened. He told Brennan he had given himself 1 1/2 ccs of Alfenta and that Wernicke was the attending physician. He told Brennan that Respondent had self- administered and why, that Wernicke had refused to write the prescription and why, and that Haynes McDaniel had suggested that Brennan could sign the prescription for the hospital's records. Dr. Brennan became upset that he had not been there to help when his colleague needed him, agreed to sign the prescription, and offered Respondent pain pills or anything else Respondent needed for what remained a painful knee and leg. Respondent declined the offer of any additional medication. In good faith and in the course of his professional practice, Dr. Brennan signed a prescription for 1 1/2 ccs of Alfenta for Respondent. Respondent then hand- delivered that prescription to the pharmacist. After receiving the prescription from Respondent, the pharmacist wrote an Unusual Occurrence Report dated December 16, 1992. In January of 1993 the hospital summarily suspended Respondent's privileges, and he has been unable to practice medicine since that time. Respondent's emergency room visit happened on a Monday evening. On the following Thursday, Respondent and Wernicke's partner Dr. Jim Cain were in the doctor's lounge together. Respondent told Cain that his leg really hurt him and was swollen, and Cain offered to look at it. Respondent pulled up his scrub suit and showed Cain his calf which was twice its normal size and "hot". Cain suggested that Respondent get an ultrasound and get some blood thinner since it looked as though Respondent had developed phlebitis, a dangerous condition. Respondent immediately went to the x-ray department and had an ultrasound performed. The ultrasound revealed that Respondent had compartment syndrome in his calf, four days after the aspiration was performed. Dr. Wernicke's office notes regarding Respondent's emergency room visit, supposedly dictated that same evening or the following day, discussed the ultrasound that Respondent had. Accordingly, Dr. Wernicke did not dictate his notes regarding his treatment of Respondent on Monday evening or on Tuesday. Those notes, however, do bear Tuesday's date and are included in the hospital's medical record for Respondent's emergency room visit. The medical chart created by the hospital was likely created on December 21, 1992, the date stated on the Unusual Occurrence Report as the date the chart was initiated. The chart which thereafter purports to be Respondent's emergency room record is actually a composite of different patients' charts. To the extent it purports to be Respondent's chart, the entries contained therein are false. The Alfenta used by Respondent was an appropriate drug for the purpose for which it was used. It is a rapid but short-acting narcotic analgesic when given in the amount in which it was given. Further, the amount of Alfenta administered was an appropriate dose. Respondent used the Alfenta because it was an appropriate drug for immediate relief so he could endure the palpation and aspiration of his knee and so he could stop his leg from trembling allowing Wernicke to aspirate it. He knew the Alfenta would be worn off even before the analgesic effect of the anti- inflammatory medication was felt. It is noteworthy that all physicians who testified in this proceeding rated the pain Respondent was in as between eight and ten on a pain scale where ten is the worst. Respondent did not use Alfenta as a result of any addiction, and his use of the drug under the circumstances in this case was not related to any abuse of narcotics. Respondent has not exhibited any of the behavior of a drug user. Respondent did not engage in any attempt to "cover up" his administration of Alfenta to himself. He called the hospital and requested his anaesthesia cart be brought and that an anaesthesiologist come to the emergency room to administer the medication. The administration occurred with the implicit consent of Wernicke and it took place in front of Wernicke, in front of three or four emergency room nurses, and in front of the emergency room doctor. At the time, he filled out the narcotics record on his anaesthesia cart and telephoned the hospital's pharmacist the following day to tell him what had occurred and request that he be billed for the medication he used. His giving the hospital a prescription from Dr. Brennan was caused by Wernicke's refusal to document the treatment he rendered to Respondent, by Respondent's inability to write his own prescription, and was in response to the hospital's specific request that a prescription be written for the purpose of the hospital's record keeping. Further, Dr. Wernicke knew what had happened, as did the other emergency room personnel present that evening, and Respondent fully disclosed the events that had occurred to both Dr. Brennan and to the hospital pharmacist. Respondent's use of Alfenta on December 14, 1992, was not in any way related to patient care and had no impact on any patient care rendered by Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause. DONE and ENTERED this 28th day of March, 1995, 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 28th day of March, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 2-6 and 9-12 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Petitioner's proposed findings of fact numbered 7, 8, 13, 14, and 16 have been rejected as not being supported by the weight of the competent evidence in this cause. Petitioner's proposed finding of fact numbered 15 has been rejected as being subordinate to the issues herein. Respondent's proposed findings of fact numbered 1, 3-19, 21-31, 33-35, 38-40, 42, 43, and 45 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2, 20, 32, 36, 37, and 44 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed finding of fact numbered 41 has been rejected as being subordinate to the issues herein. COPIES FURNISHED: Arthur B. Skafidas, Esquire Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Joseph L. Mannikko, Esquire 215 South Federal Highway, Suite 100 Stuart, Florida 34994 Dr. Marm Harris, Executive Director Agency for Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792 Tom Wallace, Assistant Director Agency for Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether, when the patient J.B. presented to the Emergency Department of Munroe Regional Medical Center (MRMC) on May 22, 1995, he then had an "emergency medical condition," as defined by Section 395.002(8)(a) F.S. Whether, when the patient J.B. presented to the Emergency Department of Munroe Regional Medical Center (MRMC) on May 22, 1995, MRMC provided to the patient appropriate "emergency services and care," including an appropriate "medical screening, examination and evaluation," as defined by Section 395.002(9) F.S., and as required by Section 395.1041 F.S., and if not, how shall MRMC be disciplined?
Findings Of Fact At all times material, J.B. was a 42 year old male employee of an Ocala music store. In that capacity, he had been moving pianos for years. As a result, he had experienced neck, shoulder and back pain off and on for years. The pain and stiffness was worst upon awaking in the mornings and frequently required two days' bed rest before he could return to work. In the week preceding Monday, May 22, 1995, J.B.'s neck and shoulder pain had intensified. On Friday, May 19, 1995, J.B. went to a walk-in clinic, CARE-ONE, because his primary care physician was out of town. He was examined by a physician; x-rays were taken; he was issued a soft cervical collar; and he was prescribed a muscle relaxer and pain medication, both of which are "scheduled" drugs. The CARE-ONE physician also advised him to see a neurosurgeon for further evaluation and treatment. Despite his use of the prescribed drugs, J.B.'s pain intensified further over the weekend, to the point he was weeping and vomiting on occasion. He also had new pain in his left arm. At all times material, Respondent MRMC in Ocala, Florida, was licensed as a Class I general hospital with an emergency department. MRMC's emergency department handles upwards of 40,000 patient visits annually. At 8:15 a.m. on Monday, May 22, 1995, J.B.'s wife, L.B., took him to the MRMC emergency department. The term, "triage", generally refers to a means of sorting and prioritization of patients based on a superficial initial examination to determine how rapidly they will be seen in a mixture of patients who have differentiated complaints. Emergency department Board-certified physicians established MRMC's medical triage protocols in 1989. In so doing, MRMC has melded the concept of initial patient evaluation and "triage" into one process, and has authorized registered nurses, among other health care professionals, to perform both functions. MRMC's emergency department staff numbers 75 FTEs at all times, plus physician and physician assistant components. Physicians are available on the premises 24 hours a day for any consultation that may be required. At all times material, Geraldine Sweeney was an MRMC Clinical III Emergency Department Triage Nurse. As such, she maintains 24 hours of continuing education units per years (twice the number required to maintain her R.N. license). She also regularly participates in in-service training in emergency department nursing. These courses regularly include neurological topics and she has encountered and assessed numerous neurological cases over her 16 years in MRMC's emergency department, six of them as triage nurse since MRMC established its dedicated triage system in 1989. Ms. Sweeney has both an associate of arts and an associate of science degree in nursing; is a fully licensed Registered Nurse; and has never had any disciplinary action taken against her license. She was accepted as an expert in hospital emergency nursing. At formal hearing, J.B. did not remember being seen by any health care professional at MRMC on May 22, 1995. His wife, L.B., was attending to registration procedures with an MRMC admittance clerk in a different room and was not present when J.B. was assessed at MRMC's emergency department on that date, but she knew he was taken to a different room by a female hospital employee whom L.B. presumed to be a nurse. Geraldine Sweeney, R.N., did not recognize J.B. at formal hearing. She has "triaged" at least 1,000 patients since May 22, 1995. However, despite these three witnesses' lapses in memory or lack of opportunity to observe and/or lack of independent recollection, MRMC's documentation for May 22, 1995, in Ms. Sweeney's handwriting and bearing her signature, shows that Ms. Sweeney is the only MRMC health care professional who performed its initial, and only, assessment of J.B. at MRMC on May 22, 1995. Ms. Sweeney's contemporaneous documentation of her examination of J.B. shows he arrived at MRMC's emergency department at 8:15 a.m. and was "triaged" at 8:15 a.m. She wrote down that subjectively, he presented with a "history of neck problems with spasms; now has pain into left arm; seen at CARE-ONE Friday; had x-rays; given valium and lortab; advised for neurosurgeon." His objective vital signs were recorded by Ms. Sweeney as, "temperature 36.4 C., pulse 62, respiration 20, blood pressure 130/75." No weight was recorded. The only other significant objective triage data Ms. Sweeney recorded was, "Wearing soft collar; ambulates well; grips equal." Ms. Sweeney classified J.B. according to MRMC's physician-established protocols as "Class I, not requiring immediate attention," and he was released from the MRMC emergency department at 8:25 a.m., just ten minutes after his arrival. At that time, he was provided with a written list of other treatment locations to which he could go, including CARE-ONE again, and his personal physician. This list did not name any other hospital emergency department. Richard S. Slevinski, M.D., is Board-certified in emergency medicine and is director of the emergency department at Baptist Hospital in Pensacola, Florida, which includes a Level II Trauma Center. He was accepted as an expert in emergency and general medicine. Dr. Slevinski and Nurse Sweeney testified that a loss of function is a significant phenomenon that should have been recorded in a proper evaluation. Ms. Sweeney testified that if J.B. had identified loss of function as a symptom to her or if she had discovered a loss of function during her examination, she would have noted that and followed up with additional tests, but J.B. did not subjectively describe loss of function and she did not objectively observe any loss of function. Dr. Slevinski and Nurse Sweeney testified that a change in function or location of pain, increase in intensity of pain or recent onset of pain are subjective indicators that should be recorded if related by the patient during an examination and evaluation. Ms. Sweeney testified that she would have recorded any of these subjective symptoms if J.B. had related them to her, but he did not. Nurse Sweeney also testified that none of the objective vital signs she recorded during her examination of J.B. on May 22, 1995 indicated severe or intense pain. This was corroborated by neurosurgeon Dr. Barry Kaplan. (See Finding of Fact 32) I accept Dr. Slevinski's expert opinion that as a medical physician, he has found that if a service was provided in an emergency department it should be documented, and that it is the duty of the emergency department professional who performs patient screenings, examinations and evaluations to inquire adequately of a patient to find out what is going on with him or her and to make a chart so that later someone else can read the chart and see what the examiner did, and I reasonably infer from this expert testimony that, absent some strong evidence to the contrary, if a service has not been documented, the service has not been performed. This analysis, however, does not support a finding that J.B. actually told Nurse Sweeney on May 22, 1995 that his overall pain or his left arm pain was newly onset, that his pain had intensified, or that his pain was more localized in his left arm. J.B. has described his pain as chronic or recurring over a long period of time in testimony and when he saw Dr. Kaplan, a neurosurgeon, on June 1, 1995 (see Findings of Fact 27, 29), and J.B. can remember nothing about what he told Nurse Sweeney on May 22, 1995. Therefore, this is a situation in which Nurse Sweeney's testimony about what J.B. did not tell her is unrefuted, rather than the classic situation, described by Dr. Slevinski, in which a patient testifies as to what symptoms he told a health care professional and the chart shows the health care professional failed to record what the patient said. However, upon the evidence as a whole, it is found that no full neurological evaluation of J.B. was done by anyone at MRMC; that Nurse Sweeney did not individually feel each of his fingers to ascertain if he had sensation and similar temperature in each; and that she did not administer any muscle resistance tests. Rather, she had J.B. perform a "grip test". This "grip test" is performed by having the patient lift and cross his arms and reach out to the examiner. It tests whether the patient is able to maneuver both his own hands forward and grab onto the examiner's fingers with equal pressure, thereby indicating lack of loss of arm function. The test permits skin to skin contact so that any loss of sensation in the patient's hands or any change or inequality of skin temperature in the patient's hands or digits can be noted by the examiner. Upon her education, training, and experience, Nurse Sweeney thereby determined that J.B.'s grips were equal and his skin was a normal temperature, indicating no loss of function, sensation, or failure in circulation. Dr. Slevinski testified that, if J.B. had presented his CARE-ONE x- rays to her, Ms. Sweeney should have had the CARE-ONE x-rays read by a qualified physician, preferably a neurologist. Ms. Sweeney denied that J.B. brought his x-rays with him to MRMC, stating that if he had done so, she would have recorded that on the assessment form and would have had them read by a qualified physician instead of just recording, "had x-rays," which she had meant to show that J.B. had had x-rays taken the Friday before at CARE-ONE. J.B.'s testimony is clear on this single point to the effect that he had his wife take him to get the CARE-ONE x-rays and had them with him at MRMC. Marion Community Hospital documented that J.B. had the CARE-ONE x-rays with him at that facility at 9:23 a.m. (See Findings of Fact 24-25) This is corroborative of J.B.'s testimony on this issue. I therefore find that Ms. Sweeney overlooked those available CARE- ONE x-rays as part of her evaluation of J.B. Dr. Slevinski opined that MRMC, through Nurse Sweeney, did not provide an adequate medical screening examination for J.B.'s presenting complaint on May 22, 1995 because he was not given an appropriately sophisticated neurologic assessment or examination of the involved extremity (left arm) by a physician, preferably a neurologist; because the CARE-ONE x-rays J.B. brought with him were not reviewed by a qualified person; and because his pain was not stabilized. Specifically, Dr. Slevinski faulted Ms. Sweeney's use of a "grips" examination instead of an examination of J.B.'s status of sensation, strength of fingers, or reflex capabilities. He opined that Ms. Sweeney's examination, as documented, was insufficient to rule out that J.B. had a condition that was going to cause him further damage. It was Dr. Slevinski's opinion that "triage", as generally understood by the community of health care professionals, without more, cannot constitute an adequate or appropriate medical screening, examination, and evaluation. In Dr. Slevinski's view, severe pain alone qualifies as an emergent or emergency condition until an adequate examination proves that it is not. However, Dr. Slevinski conceded that pain is highly subjective and is only an "emergency medical condition" if the absence of immediate medical attention could reasonably be expected to result in serious jeopardy to the patient's health, serious impairment to his bodily functions or serious dysfunction to his bodily organs or parts. Upon further questioning, Dr. Slevinski opined that in general, a medical screening examination or evaluation need not always be done by a physician; that it can be done by a nurse or even a psychological case worker in the appropriate circumstances; and that in some, but not necessarily all patient presentations, there is no reason a triage nurse, within the scope of her license, if authorized to do so by the hospital, cannot perform a medical screening examination simultaneously with triage, although that is not his preference and although that was not appropriate in this case or in all cases. Dr. Slevinski commented also that a failure to correctly diagnose and treat after an appropriate screening, examination, or assessment might subject a hospital or individual health care provider to civil liability but would not violate Chapter 395 F.S. After J.B., still in pain, had been returned from the examining room, that is, only after Nurse Sweeney had already finished her evaluation of him and determined that he did not have an emergency medical condition requiring further emergency treatment and care, and while J.B. was standing beside L.B. facing the administrative clerk in the registration area of the MRMC emergency department, L.B. handed her insurance card to the clerk. The clerk then told L.B. that J.B. could not be treated at MRMC because he did not have either a referral from his primary treating physician or a life-threatening condition. An argument ensued, and L.B. demanded to know where else she could get treatment for J.B. She then drove J.B. directly to Marion Community Hospital's emergency department upon the suggestion of MRMC's admissions clerk. J.B. was clocked-in at 9:23 a.m. at the emergency department of Marion Community Hospital a/k/a "Columbia" or "HCA", where he was kept for about five hours. He was examined by an in-house neurologist who performed a limited "hands on" physical examination and a neurological examination. His vital signs were taken. He was injected intramuscularly with 30 milligrams of toradol, a "scheduled" pain killer. He was observed and re-evaluated after several hours. Additional x-rays were taken and reviewed by a radiologist who also reviewed the CARE-ONE x-rays J.B. had brought with him. J.B.'s valium and lortab prescriptions were refilled. He was released from Marion's emergency department with instructions to call and schedule an MRI and also to see his own physician and a neurosurgeon. The only medical "treatment" J.B. received at Marion was for pain. The final result after Marion's extensive and expensive screening examination and evaluation was the same as had occurred at MRMC: that he was released because he had no emergency medical condition requiring further emergency medical treatment in that facility at that time. Barry Kaplan, M.D., is the Board-certified neurosurgeon who eventually performed successful surgery on J.B. Dr. Kaplan first saw J.B. in his office on July 1, 1995. The length of this visit is not clear on the record. J.B.'s general description to him was that of chronic pain. Apparently J.B. had gone back to work for part of the time between May 22, 1995 and seeing Dr. Kaplan on June 1, 1995. On June 1, 1995, Dr. Kaplan did a complete neurologic examination, which included testing J.B.'s muscle actions against resistance. He also felt all of J.B.'s fingers, individually, while asking about sensation in each. These tests revealed only mild weakness or dysfunction in the bicep muscle of J.B.'s left arm and only mild numbness or dysfunction in his left arm. Dr. Kaplan also reviewed an MRI taken of J.B. on May 31, 1995 which demonstrated a chronic arthritic condition of J.B.'s neck, with bone spurs pressing the nerves running to his left arm and spinal cord, which resulted in J.B.'s pain. In Dr. Kaplan's opinion as an expert in neurosurgery and general medicine, J.B.'s condition on June 1, 1995, could not have developed measurably within the time elapsed since his visit to the MRMC emergency department on May 22, 1995 or even within the last month, because on June 1, 1995, J.B. had no acute symptoms of sufficient severity that he then had immediate need of treatment, nor was there any reasonable expectation that lack of treatment could be expected to result in serious jeopardy to his health, serious impairment to his bodily functions or serious dysfunction to his bodily organs or parts. On June 1, 1995, Dr. Kaplan believed that J.B.'s condition could be left alone for another four to six months before any permanent injury would occur to his spinal cord, but due to J.B.'s intense and chronic pain and relative youth, he recommended elective surgical removal of certain discs. Dr. Kaplan did the recommended elective surgery at J.B.'s request on July 12, 1995 at MRMC. J.B. has been pain-free since recovery. Dr. Kaplan's opinion also was that none of the objective vital signs recorded by Nurse Sweeney on May 22, 1995 would be consistent with severe pain. Although he was aware that Nurse Sweeney did not record giving a numbness test, weakness test, or reviewing x-rays on May 22, 1995, Dr. Kaplan also opined that, "Unless somebody has quadriparesis or complete dysfunction of a part from a cervical disc problem, then it is not an emergent condition . . . . Unless they have severe weakness or numbness to go along with the pain, there's no indication for emergency intervention." Dr. Kaplan's opinion also was that no serious jeopardy could have been incurred by J.B. not receiving further emergency services and treatment beyond MRMC's initial assessment on May 22, 1995. No health care witness set a minimum time necessary to conduct an appropriate examination. All indicated that the time involved and appropriate tests varied from case to case.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the administrative complaint herein. RECOMMENDED this 17th day of December, 1996, at Tallahassee, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1996. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 7827 North Dale Mabry Highway No. 100 Tampa, Florida 33614 Thomas D. Watry, Esquire 1500 Marquis Two Tower 285 Peachtree Center Avenue Northeast Atlanta, Georgia 30303 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403 Jerome W. Hoffman, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
Conclusions THIS CAUSE comes before the AGENCY FOR HEALTH CARE ADMINISTRATION (the "Agency") concerning the Administrative Complaint (Ex. 1) filed against LIFE CARE CENTER OF JACKSONVILLE (hereinafter “Life Care-Jacksonville"), on April 28, 2008, regarding for Life Care-Jacksonville’s failure to comply with its Medicaid conditions as reported to the Agency. 1. Life Care-Jacksonville filed an Amended Petition for Formal Administrative Hearing challenging the Administrative Complaint. 2. The parties have since entered into the attached Settlement Agreement. (Ex. 2) It is ORDERED that: 1. The attached Settlement Agreement is adopted and the parties are directed to comply with the terms of the Settlement Agreement. 2. The Administrative Complaint is withdrawn. Filed December 19, 2011 4:03 PM Division of Administrative Hearings 3. The parties are responsible for their respective fees and costs. DONE AND ORDERED this 3 day of Dee ber , 2011, in Tallahassee, Florida.
The Issue Whether the Agency for Health Care Administration (Agency or AHCA) is entitled to recover certain Medicaid funds paid to Lee Memorial Health System, d/b/a Lee Memorial Hospital (Respondent or Lee Memorial), for services provided to undocumented aliens: between January 1 through December 31, 2006, as alleged in AHCA’s Amended Final Audit Report, dated July 25, 2014 (DOAH Case 14-4171); and January 1 through December 31, 2007, as alleged in AHCA’s Final Audit Report, dated March 12, 2015 (DOAH Case 15-3271).
Findings Of Fact THE PARTICIPANTS Lee Memorial was, at all relevant times, an enrolled Medicaid provider authorized to receive reimbursement for covered goods and services provided to Medicaid recipients. As an enrolled provider, Lee Memorial’s participation in the Florida Medicaid Program is subject to the terms of the Medicaid Provider Agreement. The Florida Medicaid Program requires compliance with all state and federal laws governing the Medicaid program, including the state and federal laws limiting Medicaid payments for services provided to aliens. As indicated, the Agency is the single state agency responsible for administering or supervising the administration of the Florida Medicaid Program (Medicaid). § 409.901(15), Fla. Stat. PRELIMINARY: FLORIDA MEDICAID PROGRAM Section 409.901(16), Florida Statutes, provides that the Medicaid program is “authorized under Title XIX of the federal Social Security Act which provides for payments for medical items or services, or both, on behalf of any person who is determined by the Department of Children and Families, or, for Supplemental Security Income, by the Social Security Administration, to be eligible on the date of service for Medicaid assistance.” The Medicaid program is jointly funded by the federal government and the individual states that have elected to participate in the program, of which Florida is one. Federal payments to the states for a portion of the cost of Medicaid are referred to as federal financial participation (FFP). AHCA administers the Medicaid program. AHCA is authorized to make payments to Medicaid providers for medical assistance and related services under Title XIX of the Social Security Act. However, in order to receive Medicaid assistance, the Department of Children and Families (DCF) must determine the eligibility of applicants for that assistance. Pursuant to section 409.902(1), DCF has adopted Florida Administrative Code Rule 65A-1.715 which addresses Medicaid eligibility for aliens. This rule provides: Aliens who would be eligible for Medicaid but for their immigration status are eligible only for emergency medical services. Section 409.901(10) F.S., defines emergency medical conditions. The Utilization Review Committee (URC) or medical provider will determine if the medical condition warrants emergency medical services and, if so, the projected duration of the emergency medical condition. The projected duration of the emergency medical condition will be the eligibility period provided that all other criteria are continuously satisfied. Emergency services are limited to 30 consecutive days without prior approval. For continued coverage beginning with the 31st day prior authorization must be obtained from the Agency for Health Care Administration (Medicaid Program Office). [Emphasis added]. The eligibility period for alien recipients is also described in rule 65A-1.702, which states: (2) Date of Eligibility. The date eligibility for Medicaid begins. This was formerly called the date of entitlement. The date of eligibility includes the three months immediately preceding the month of application (called the retroactive period). Eligibility for Medicaid begins the first day of a month if an individual was eligible any time during the month, with the following exceptions: * * * (c) Coverage for individuals eligible for the Emergency Medicaid for Aliens program begins the first day of a covered emergency and ends the day following the last day of the emergency medical situation. [Emphasis added]. DCF is performing an administrative function, solely to determine if the alien is eligible to receive medical assistance. DCF does not determine the duration of the emergency medical condition. DCF does not make a clinical medical determination regarding any patient because it does not have medical professionals to verify the information received. DCF has the dates of eligibility, but AHCA determines which bills are paid. AHCA relies on licensed medical physicians to determine the duration of the emergency medical services. Undocumented aliens do not qualify to receive full Medicaid benefits. As detailed in Agency handbooks, the aid is limited to the treatment of an emergency medical condition up to the point that condition has been alleviated. According to section 409.902(2), Medicaid eligibility is restricted to U.S. citizens and lawfully admitted noncitizens who meet the criteria provided in section 414.095(3), Florida Statute.4/ The criteria mean that undocumented or illegal aliens are generally not eligible for Medicaid assistance. All of the claims in dispute in this case involve payments on behalf of undocumented noncitizens who will be referred to herein as "aliens." As an exception to the general rule, episodic eligibility is available to an alien who is either pregnant or seeking "services [which] are necessary to treat an emergency medical condition." § 409.902(2)(b), Fla. Stat. "The eligibility of . . . a recipient [who meets all other requirements for Medicaid eligibility except citizenship and who is in need of emergency medical services] is limited to the period of the emergency, in accordance with federal regulations." § 409.904(4), Fla. Stat. (emphasis added). An alien is eligible for medical assistance only if he has an "emergency medical condition" requiring "emergency medical services"--and then only for those services "necessary to treat [the] emergency medical condition" that are provided during the "period of the emergency," the conclusion of which terminates the alien's eligibility. The term "emergency medical condition" (EMC) is defined in section 409.901(10)(a) as: A medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain or other acute symptoms, such that the absence of immediate medical attention could reasonably be expected to result in any of the following: Serious jeopardy to the health of a patient, including a pregnant woman or a fetus. Serious impairment to bodily functions. Serious dysfunction of any bodily organ or part. Section 409.901(11) provides the following definition of “emergency services and care”: [M]edical screening, examination, and evaluation by a physician, or, to the extent permitted by applicable laws, by other appropriate personnel under the supervision of a physician, to determine whether an emergency medical condition exists and, if it does, the care, treatment, or surgery for a covered service by a physician which is necessary to relieve or eliminate the emergency medical condition, within the service capability of a hospital. Section 409.904(4) provides: A low-income person who meets all other requirements for Medicaid eligibility except citizenship and who is in need of emergency medical services. The eligibility of such a recipient is limited to the period of the emergency, in accordance with federal regulations. Section 409.905(5) has, since 2005, consistently provided that AHCA shall pay for “all covered services provided for the medical care and treatment of a recipient” admitted as an inpatient by a licensed physician to a licensed hospital. However, covered payments can be determined by the patients’ physical condition. AHCA is authorized to “conduct or cause to be conducted . . . reviews, investigation, analyses, audits, or any combination thereof, to determine possible fraud, abuse, overpayment, . . . in the Medicaid program and shall report the findings of any overpayments in audit reports as appropriate . . . . Medical necessity determination requires that service be consistent with symptoms or confirmed diagnosis of illness or injury under treatment and not in excess of the patient’s needs.” § 409.913(2), Fla. Stat. Section 409.913(1)(e) defines “overpayment” to mean “any amount that is not authorized to be paid by the Medicaid program whether paid as a result of inaccurate or improper cost reporting, improper claiming, unacceptable practices, fraud, abuse, or mistake.” As found in section 409.913(1)(a)1, “abuse” means “[p]rovider practices that are inconsistent with generally accepted business or medical practices and that result in an unnecessary cost to the Medicaid program or in reimbursement for goods or services that are not medically necessary or that fail to meet professionally recognized standards of health care.” Further, under section 409.913(5), a Medicaid provider “is subject to having goods and services that are paid for by the Medicaid program reviewed by an appropriate peer-review organization designated by the agency. The written findings of the applicable peer-review organization are admissible in any court or administrative proceeding as evidence of medical necessity or the lack thereof.” AHCA has authority to “adopt any rules necessary to comply with or administer ss. 409.901-409.920 and all rules necessary to comply with federal requirements.” § 409.919, Fla. Stat. Florida Administrative Code Rule 59G-4.160 provides that all enrolled hospital providers must comply with the provisions of the Florida Medicaid Hospital Services Coverage and Limitations Handbook. As found on page 2 through 7 of this handbook: The Medicaid Hospital Services Program reimburses for emergency services provided to aliens who meet all Medicaid eligibility requirements except for citizenship or alien status. Eligibility can be authorized only for the duration of the emergency. Medicaid will not pay for continuous or episodic services after the emergency has been alleviated. Dialysis is considered an emergency service. [Emphasis added]. Rule 59G-5.020 provided for the use of the Florida Medicaid Provider Handbook. On page 3 through 22 under the heading, “Emergency: Medicaid for Aliens,” it provides: Eligibility can be authorized only for the duration of the emergency. Medicaid will not pay for continuous or episodic services after the emergency has been alleviated. All claims must be accompanied by documentation of the emergency nature of the service. Exceptions are labor, delivery, and dialysis services. These are considered emergencies and are payable without documentation when the emergency indicator is entered on the claim form. [Emphasis added]. CURRENT DEVELOPMENTS In 2009, the Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS), conducted a “Review of Florida’s Medicaid Payments for Emergency Services to Undocumented Aliens” (review). The review was directed to AHCA for the purpose of determining “whether AHCA’s billing for emergency medical services to undocumented aliens in the State of Florida complies with applicable Federal statutes and CMS’ regulations.” One of the review’s findings was that “AHCA is claiming FFP for emergency medical services to undocumented aliens provided beyond what Federal statutes and regulations define to be an emergency.” CMS recommended that “AHCA should review all emergency services for undocumented alien amounts claimed for FFP during Federal Fiscal Years 2005, 2006, and 2007 and re-determine allowability of these claims utilizing the required Federal criteria” and that AHCA “promptly implement the necessary system edits so that services provided as emergent care [could] be differentiated from services provided after the point the patients are stable, and then bill to the proper Federal programs.” In September 2010, the Department of Health and Human Services, Office of Inspector General, published its “Review of Medicaid Funding for Emergency Services Provided to Nonqualified Aliens” (report). The report described existing internal controls at AHCA that needed to be improved in order to assure that “all claims for services provided to undocumented aliens are for conditions that the State agency defines as emergency services.” RN Ryder explained that AHCA’s internal controls, mainly the computer program, prevented the reviewers from adjusting a claim’s length of stay to the point where the emergency condition had been alleviated. Rather, the computer would only allow for the approval or denial of a claim. AHCA’s response to the report provided: The Agency’s contracted quality improvement organization began reviewing all requests for Medicaid reimbursement of inpatient emergency services for undocumented aliens on July 1, 2010. These reviews determine the point at which the emergency no longer exists, consistent with federal regulations and deny Medicaid reimbursement for the remainder of the inpatient stay. The Agency is also undertaking a retrospective review of all inpatient alien claims from July 2005 through June 30, 2010, to determine point of stabilization. Any payments made in error will be recouped, and the federal share will be adjusted on the Form CMS-64. The retrospective reviews will begin October 1, 2010. In August 2012, health care providers, including Lee Memorial, filed a Petition for Determination of Invalidity of Non-Rule Policy. This rule challenge, known as Bayfront I, ended with the December 12, 2012, Final Order that AHCA’s use of “the ‘point of stabilization’ standard was an interpretation or an implementation of the existing statutes and rules and not merely a restatement of them.” As such, AHCA discontinued reliance on the “stabilization standard.” In October 2014, health care providers, including Lee Memorial, filed a second Petition for Determination of Invalidity of Non-Rule Policy or In the Alternative for Determination of the Invalidity of a Rule. This rule challenge, known as Bayfront II, ended with the April 20, 2015, Final Order5/ that AHCA, having provided notice that it was going to start enforcing it statutes and rules, did not change “an interpretation or way of applying a statute or its rules. It is just starting to enforce them, as they are written, after years of neglecting to enforce them.” See Bayfront Med. Ctr., et al. v. AHCA, Case No. 14-4758, FO at 69 (Fla. DOAH Apr. 20, 2015). PROCESS One method the Agency uses to discover Medicaid overpayments is by auditing billing and payment records of Medicaid providers. Such audits are performed by staff in the Agency's MPI. MPI is responsible for reviewing providers to assure that paid claims for services rendered were in accordance with the applicable rules, regulations and handbook(s). MPI looks to ensure that the provider is enrolled, the recipient is eligible, the service billed is covered, and the service is billed appropriately. As an example: An alien is in need of medical care, emergent or otherwise. The alien applies through DCF to become eligible for medical services, and is deemed eligible. An EMC arises, and the alien immediately presents to a duly enrolled Medicaid Provider, a health care facility of some type.6/ The alien is admitted as an inpatient on day one, and emergency health care services are provided. The EMC is alleviated as of day three, yet the alien remains in the health care facility for ten more days, receiving medical services, but not of the emergent type. The alien is discharged from the facility on day The facility bills the Medicaid program for 13 days of service. It is not uncommon for the alien’s eligibility to be determined after the hospitalization has ended, and the provider is seeking to cover its costs. PEER REVIEW When a claim was presented for peer review, the peer reviewers were directed to base the review on the standards governing emergency Medicaid for Aliens under state and federal laws, rules, and regulations. The peer reviewers had three issues to determine: whether an EMC existed, the length or duration of the emergency services (when the EMC was alleviated), and whether there were sufficient medical documentation/records to perform a medical review of the rendered services. The peer reviewers were all Florida-licensed physicians, either allopathic or osteopathic, who were matched by specialty or subspecialty to the claims they were reviewing. Each physician testified as to his or her medical or osteopathic education, background and training. Petitioner offered each physician as an expert, and each was accepted as such. The physicians were trained by their peer review organization on the statutes and rules regarding emergency Medicaid for aliens. The physicians then applied the standards contained in the statutes and rules with their education, training and experience to determine whether an EMC existed, the date on which the EMC was alleviated, and whether there were sufficient medical records upon which to make those determinations. SPECIFIC CLAIMS TO DOAH CASE NO. 14-4171 Adam Berko, D.O, a Board-certified family practitioner (a/k/a general practitioner), credibly testified regarding the following claim: Claim (Patient) 3, an 18-year-old male, presented to Lee Memorial’s emergency room on December 5, 2006, complaining of shortness of breath, chest pain, body aches and abdominal pain. He was diagnosed with acute renal failure and leukocytosis with bandermia. Patient 3 was discharged from the hospital on December 14, 2006. Dr. Berko credibly testified that Patient 3’s EMC had been alleviated as of December 9, 2006. Mark Kanarek, M.D., a Board-certified pediatric physician credibly testified regarding the following claims: Claim (Patient) 4, an 11-year-old female, presented to Lee Memorial’s emergency room on December 6, 2006, with abdominal pain and emesis (vomiting). It was medically necessary to admit Patient 4. An x-ray was taken which showed a subacute intestinal obstruction secondary to adhesions. A follow-up x-ray on December 7, showed there was a resolution of the small bowel distention. By December 8, Patient 4 was having regular bowel movements, which signified no further obstruction. She remained in the hospital until December 10, 2016; however, when Patient 4’s bowel obstruction was alleviated on the 8th, the EMC was alleviated. Claim (Patient) 21, a four-year-old male with Down’s syndrome presented to Lee Memorial’s emergency room on July 18, 2006, with a fever following a diagnosis of leukemia. It was an emergent condition for which hospitalization was necessary. Patient 21 continued to have fever spikes through July 23, 2006, which placed the child at a continued risk for life-threatening sepsis. The blood cultures returned as negative and the child was fever-free. Patient 21 remained in the hospital until July 26, 2006, however when the patient’s fever broke, on the 23rd, and the blood cultures returned as negative, the EMC was alleviated. Michael Phillips, M.D., a Board-certified internist credibly testified regarding the following claims: Claim (Patient) 5, an 86-year-old female, presented to Lee Memorial’s emergency room on April 11, 2006, with nausea, vomiting and dehydration. Given Patient 5’s age and condition, it was medically necessary to admit her. Patient 5 received IV fluids, which were stopped on April 12, 2006. As such, on April 12, Patient 5’s EMC was alleviated, and she was discharged on April 13, 2006. Claim (Patient) 8, a 31-year-old male presented to Lee Memorial’s emergency room on October 6, 2006, complaining of weakness and dizziness since that morning. Patient 8 was found to have new onset diabetes, after having lost approximately 47 pounds in the preceding four or five months. The admitting diagnosis was “syncope and collapse,” but without mention of a loss of consciousness. There was discussion regarding the signs of the significant weight loss. Patient 8 was discharged on October 12, following his receipt of insulin,7/ oral hypoglycemics8/ and education for his diabetic condition. Patient 8 had “a chronic medical condition that required treatment, but again, it wasn’t something that required immediate emergency care.” There was no EMC. Claim (Patient) 11, a 26-year-old male with a history of testicular cancer, presented to Lee Memorial’s emergency room on August 29, 2006, for his fifth cycle of chemotherapy. Patient 11 was admitted to a regular nursing floor for his scheduled chemotherapy treatment. Patient 11 was discharged on September 4, 2006. Patient 11 did not have an EMC nor did he receive any emergency services; rather, he had a scheduled medical treatment. Claim (Patient) 27, a 43-year-old female presented to Lee Memorial’s emergency room on July 9, 2006, with complaints of nausea, vomiting, diarrhea and chills. She had a two-month history of abdominal pain, nausea, vomiting, and diarrhea, and was diagnosed as having colitis. Patient 27 was admitted to Lee Memorial, had an abdominal scan and was treated with IV infusions. She did not require immediate surgery or any emergency services during the admission. Patient 27 did not receive any emergency services. She was discharged on September 4, 2006. Steve Beiser, M.D., a Board-certified internist credibly testified regarding the following claim: a. Claim (Patient) 13, a 28-year-old male was admitted to Lee Memorial on October 9, 2006, for an elective surgery. Patient 13 underwent an anterior mediastinal germ cell tumor resection and was discharged on October 14, 2006. Patient 13 did not receive any emergency services. Bruce Shephard, M.D., a Board-certified obstetrician and gynecologist, credibly testified regarding the following claim: Claim (Patient) 18, a 23–year-old female, presented to Lee Memorial’s emergency room on March 3, 2006, with complaints of being unable to void or have a bowel movement, abdominal pain, and pelvic pain. She was admitted on March 3, and her EMC presented on March 8, when she underwent surgery. Patient 13 was discharged on March 9. The EMC was alleviated on March 8, 2006. SPECIFIC CLAIMS TO DOAH CASE NO. 15-3271 Dr. Berko credibly testified regarding the following claim: a. Claim (Patient) 7, a 52-year-old male, presented to Lee Memorial’s emergency room on November 30, 2007, with complaints of epigastric pain, anemia and alcohol abuse. During his December 1, 2015, deposition (Petitioner’s Exhibit 21), Dr. Berko testified there was insufficient documentation to properly review the claim. At the hearing, the parties agreed that Respondent was able to provide the medical records. Dr. Berko was able to review the material and render his opinion via a January 23, 2016, Case Detail Report (CDR). Although Respondent did not object to the admission of Petitioner’s Exhibit 66, the CDR which contained Dr. Berko’s peer review is hearsay. There was no direct credible testimony regarding Patient 7, and no finding of fact is made with respect to Patient 7. Dr. Kanarek credibly testified regarding the following claims: Claim (Patient) 4, an eight-year-old female, presented to Lee Memorial with bone pain, fever and a refusal to walk on December 26, 2007. During his January 11, 2016, deposition (Petitioner’s Exhibit 19), Dr. Kanarek testified that there was insufficient documentation to properly review the claim. At the hearing, the parties agreed that Respondent was able to provide the medical records and Dr. Kanarek was able to review the material and render his opinion via a January 21, 2016, CDR. Although Respondent did not object to the admission of Petitioner’s Exhibit 65, the CDR which contained Dr. Kanarek’s peer review is hearsay. There was no direct credible testimony regarding Patient 4, and no finding of fact is made with respect to Patient 4. Claim (Patient) 12, a 17-year-old male, was admitted to Lee Memorial on January 17, 2007, for a mediport placement, bone marrow biopsy on January 18, and the initiation of chemotherapy. (Patient 12 had been diagnosed with undifferentiated sarcoma with metastasis to the lungs.) There was no EMC for Patient 12, but rather a planned hospitalization for his cancer treatment. Following his chemotherapy, Patient 12 was discharged on January 22, 2007. Claim (Patient) 24, a six-year-old Down’s syndrome male with leukemia, was admitted to Lee Memorial on October 11, 2007, with fever and pancytopenia. He was discharged on October 15, 2007, after he had been fever-free for 48 hours on October 14. Dr. Kanarek determined that Patient 24’s EMC was alleviated on October 14. Claim (Patient) 27, a two-year-old male, was presented to Lee Memorial’s emergency room on August 5, 2007, following a near drowning event which required cardiopulmonary resuscitation. During his January 11, 2016, deposition (Petitioner’s Exhibit 19), Dr. Kanarek testified that there was insufficient documentation to properly review the claim. At the hearing, the parties stipulated that Respondent was able to provide the medical records. Dr. Kanarek was able to review the material and render his opinion via a January 21, 2016, CDR. Although Respondent did not object to the admission of Petitioner’s Exhibit 67, the CDR which contained Dr. Kanarek’s peer review is hearsay. There was no direct credible testimony regarding Patient 27, and no finding of fact is made with respect to Patient 27. Claim (Patient) 40, a seven-year-old male, presented to Lee Memorial’s emergency room on November 26, 2007, with a one- week history of left-sided facial swelling, following a tooth extraction. Although the child had been given oral antibiotics following the tooth extraction, that course of treatment failed, and his facial swelling and pain increased. When hospitalized, Patient 40 was started on IV antibiotics, and by November 28, 2007, his blood culture was negative, he remained afebrile, and his facial swelling had subsided. The EMC was alleviated on November 28, 2007. Patient 40 was discharged on December 10, 2007. Claim (Patient) 44, a 13-year-old male, presented to Lee Memorial’s emergency room on August 13, 2007, with a two and one-half month history of weight loss, increased thirst and urination, and a blood glucose of 534. He was admitted to the hospital, given IV normal saline bolus, started on insulin, and received diabetic instruction. Patient 44 did not present with an EMC; he presented with new onset diabetes. Dr. Kanarek credibly testified that Patient 44 never exhibited any signs of diabetic ketoacidosis, an imminently life-threatening condition, and he never required intensive or emergent care. Patient 44 was discharged on August 17, 2007. Thomas Wells, M.D., a Board-certified surgeon and family practitioner, who engages in emergency medicine, family practice and surgery, credibly testified regarding the following claims: Claim (Patient) 6, a 26-year-old female, was admitted to Lee Memorial on May 14, 2007, for a scheduled gastric cancer surgery. This patient had a medical condition, but there was no evidence that she presented with an EMC. Patient 6 was discharged on May 21, 2007. Claim (Patient) 46, a 20-year-old male, presented to Lee Memorial’s emergency room on June 10, 2007, following a motor vehicle crash. Patient 46 was admitted to the hospital with a traumatic brain injury, bilateral chest trauma, blunt abdominal trauma with liver injury, and multiple bone fractures complicated by cocaine use. His hospital stay was complicated by the surgically repaired wounds opening, and he required additional surgeries. By July 2, 2007, Patient 46’s cardiology workup was completed, his arrhythmia was resolved, his abdominal wound was improving, and he was tolerating food by mouth. Dr. Wells determined that his EMC was alleviated by July 2. Patient 46 was discharged from the hospital on July 7, 2007. Claim (Patient) 50, a 33-year-old male, presented to Lee Memorial’s emergency room on July 13, 2007, with upper quadrant abdominal pain radiating to his back. Patient 50 was admitted and underwent testing protocol. By July 20, 2007, Patient 50’s white blood count had improved, his temperature was improved and his condition was no longer emergent. Dr. Wells determined that the EMC was alleviated on July 20, 2007. Patient 50 was discharged from the hospital on July 21, 2007. Dr. Beiser credibly testified regarding the following claims: Claim (Patient) 9, a 54-year-old male, presented to Lee Memorial’s emergency room and was admitted on September 4, 2007. Prior to the admission, Patient 9 had been non-compliant with his health care provider’s instructions, and he was told to “go to the ER.” Although he came in through the emergency department, there was no EMC to address, or to be alleviated. Rather, Patient 9 was a non-compliant patient who needed to comply with his physician’s directions. Patient 54 was discharged on September 8, 2007. Claim (Patient) 11, a 33-year-old female, presented to Lee Memorial’s emergency room on April 6, 2007, with a recurrent deep vein thrombosis of her left lower extremity. Her condition was an EMC, and she was admitted. Her physician promptly administered anticoagulation medication and her condition improved, so much so that she was walking well and without chest pain or shortness of breath the following day, April 7. She was discharged on April 9, 2007. Dr. Beiser determined her EMC was alleviated on April 8, 2007. Claim (Patient) 15, a 35–year-old male, presented to Lee Memorial’s emergency room on April 7, 2007, following a motor vehicle accident involving alcohol intoxication. Patient 15 had a left ankle contusion and a closed head injury, which on imaging identified a large brain mass. The mass was determined to be a cyst and no emergent intervention was indicated. The following day, April 8, Patient 15 was alert and oriented with no apparent alcohol withdrawal symptoms. Dr. Beiser determined that his EMC was alleviated on April 8, 2007. Claims 17 and 18 involve the same patient over two different hospitalizations. Patient 17/18, a 51–year-old female, presented to Lee Memorial’s emergency room on September 5, 2007, with complaint of abdominal pain after gastric bypass surgery. She was admitted to the hospital and noted to have ascites, jaundice and diabetes. Patient 17/18 was found to have liver failure and bacterial peritonitis. Dr. Beiser determined that the EMC was alleviated by September 11, when Patient 17/18’s abdominal pain had resolved and there was significant improvement in her overall condition. On October 13, Patient 17/18 again presented to Lee Memorial with complaints of abdominal pain for four days’ duration. She was known to have severe liver disease. Her abdominal pain was suspected to be bacterial peritonitis and this EMC was treated. By October 15, Patient 17/18 was found to be afebrile with no abdominal tenderness. Dr. Beiser determined that the EMC was alleviated on October 15, and the patient was discharged on October 21, 2007. Claim (Patient) 31, a 25-year-old male with a history of meningitis, neurosyphilis and underlying human immunodeficiency virus (HIV), presented to Lee Memorial’s emergency room on June 14, 2007, with an acute febrile illness and neck mass. He was admitted to the hospital and started on IV antibiotics, and a neck biopsy was performed. Patient 31 had a complicated hospital stay as he had persistent fevers, headaches, episodes of hypotension, and sepsis. Through treatment, his condition improved and he was discharged on July 3, 2007. Dr. Beiser determined that the EMC was alleviated on June 27, 2007. Claims 33 and 34 involve the same patient over two different hospitalizations. Patient 33/34 is a 67-year-old female who presented to Lee Memorial’s emergency room on May 21, 2007, with an active gastrointestinal bleed and blood loss anemia. She underwent blood transfusions and the anemia was alleviated by May 22. Patient 33/34 was discharged on May 23, 2007. Dr. Beiser determined that the EMC was alleviated on May 22, 2007. Patient 33/34 presented to Lee Memorial on July 5, 2007, with an active gastrointestinal bleed and blood loss anemia. Patient 33/34 underwent blood transfusions and the anemia was alleviated on July 6. Patient 33/34 refused any further medical procedures, and she was discharged on July 8, 2007. Dr. Beiser determined that the EMC was alleviated on July 6, 2007. Claim (Patient) 37, a 27–year-old female, presented to Lee Memorial’s emergency room on October 12, 2007, with complaints of severe abdominal pain. On October 14, her condition was “improved,” and she denied any abdominal pain, nausea or vomiting. Dr. Beiser determined her EMC was alleviated on October 14. Patient 37 was discharged on October 15, 2007. Claim (Patient) 38, a 32-year-old male, presented to Lee Memorial’s emergency room on September 28, 2007, with complaints of excessive thirst and urination, with some slight weight loss and weakness. He was admitted to the hospital for uncontrolled diabetes. Although Dr. Beiser determined that uncontrolled diabetes is not an EMC, Patient 38’s records demonstrated that he had diabetic ketoacidosis, which is an EMC. With insulin, Patient 38’s EMC was alleviated on September 29, 2007. He was discharged on October 1, 2007. Claim (Patient) 49, a 33-year-old male, presented to Lee Memorial’s emergency room on April 30, 2007, with complaints of right mid-lower quadrant abdominal pain with nausea, vomiting and diarrhea for two days prior to presentation. Patient 49 was admitted to rule out appendicitis. Patient 49 was taken to surgery on May 2, 2007, where an appendectomy was successfully performed. He had an uneventful recovery, and Dr. Beiser determined that the EMC was alleviated on May 2, 2007. Patient 49 was discharged on May 4, 2007. Dr. Shephard credibly testified regarding the following claim: a. Claim (Patient) 36, an 18-year–old female, presented to, and was admitted to Lee Memorial on July 14, 2007, at 31 weeks gestation with a heart condition and mild pre-eclampsia. Her medical condition became emergent on July 26, when she experienced congestive heart failure and decreased oxygen levels. She was transferred to the intensive care unit, and she delivered by emergency C-section on July 28, 2007. Patient 36 was extubated on July 29, and her cardiopulmonary status continued to improve. She was discharged on August 3, 2007. Dr. Shephard determined that Patient 36’s EMC started on July 26 and was alleviated on August 2, 2007. RECOUPMENT OF MEDICAID OVERPAYMENTS Based upon the foregoing findings, and the persuasive weight of the evidence presented by the parties, it is determined: As to Patient 3, EMC was not required for this patient subsequent to December 9, 2006; As to Patient 4, EMC was not required for this patient subsequent to December 8, 2006; As to Patient 21, EMC was not required for this patient subsequent to July 25, 2006; As to Patient 5, EMC was not required for this patient subsequent to April 12, 2006; As to Patient 8, none of this patient’s care was required as emergency medical care; As to Patient 11, none of this patient’s care was required as emergency medical care; As to Patient 27, none of this patient’s care was required as emergency medical care; As to Patient 13, none of this patient’s care was required as emergency medical care; As to Patient 18, although admitted on March 3, 2006, the EMC presented on March 8, and Patient 13 was discharged on March 9, 2006; (The following patients were seen in 2007.) As to Patient 7, no finding of fact was made with respect to the care provided; As to Patient 4, no finding of fact was made with respect to the care provided; As to Patient 12, none of this patient’s care was required as emergency medical care; As to Patient 24, emergency medical care was not required for this patient subsequent to October 14, 2007; As to Patient 27, no finding of fact was made with respect to the care provided; As to Patient 40, emergency medical care was not required for this patient subsequent to November 28, 2007; As to Patient 44, none of this patient’s care was required as emergency medical care; As to Patient 6, none of this patient’s care was required as emergency medical care; As to Patient 46, emergency medical care was not required for this patient subsequent to July 2, 2007; As to Patient 50, emergency medical care was not required for this patient subsequent to July 20, 2007; As to Patient 11, emergency medical care was not required for this patient subsequent to April 8, 2007; As to Patient 15, emergency medical care was not required for this patient subsequent to April 9, 2007; As to Patient 17, emergency medical care was not required for this patient subsequent to September 11, 2007; As to Patient 18, emergency medical care was not required for this patient subsequent to October 15, 2007; As to Patient 33, emergency medical care was not required for this patient subsequent to May 22, 2007; As to Patient 34, emergency medical care was not required for this patient subsequent to July 6, 2007; As to Patient 37, emergency medical care was not required for this patient subsequent to October 14, 2007; AA. As to Patient 38, emergency medical care was not required for this patient subsequent to September 29, 2007; BB. As to Patient 49, emergency medical care was not required for this patient subsequent to May 2, 2007; CC. As to Patient 36, emergency medical care was not required for this patient subsequent to August 2, 2007. With respect to both DOAH case numbers, Respondent offered no testimony or evidence to dispute or rebut the testimony on any of the claims presented above. Each expert credibly testified as to when each EMC presented and the date on which each EMC was alleviated. The experts provided the requisite support to both the AFAR and FAR.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order sustaining the Medicaid overpayment in DOAH Case No. 14-4171 as $57,337.71, plus sanctions of $2,500, and costs of $2,062.04. With respect to DOAH Case No. 15-3271, the amount due should be recalculated based on only those claims that were found to be overpayments,9/ and costs of $3,528.41. Based on the oral stipulation announced at the hearing (found on Transcript, page 106), AHCA “remove[d] the claim for sanctions as to the 2007 case[s].” DONE AND ENTERED this 27th day of April, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2016
The Issue The issue in this case is whether Respondent, Joseph Ovadia, M.D., committed the violations alleged in an Administrative Complaint issued by Petitioner, the Department of Health, on August 26, 2002, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. Respondent, Joseph Ovadia, M.D., is, and was at the times material to this matter, a physician licensed to practice medicine in Florida, having been issued license number ME 0046214. At the times material to this matter, Dr. Ovadia was on staff at Homestead Hospital, with emergency "on-call" responsibilities. Although not certified by the Board of Medicine (hereinafter referred to as the "Board"), Dr. Ovadia specialized in orthopedic surgery, with sub-specialties in joint reconstruction, and shoulder and hand surgery. Dr. Ovadia received his medical degree from McGill University in Canada. He completed an internship/residency in orthopedic surgery at the Department of Orthopedics at New York University Medical Center, completed a clinical assistantship in London, England, and has been licensed to practice in Florida since 1985. Dr. Ovadia is a Medicare and Medicaid provider with approximately 30 percent of his practice devoted to Medicaid patients. As a result of the incidents involved in this matter, Dr. Ovadia's privileges at Homestead Hospital were revoked in 1998. Dr. Ovadia has not been disciplined by the Board. He has made one malpractice payout of $30,000.00 in 1986. The Department's Administrative Complaint and Dr. Ovadia's Request for Hearing. On August 22, 2002, the Department filed a three-count Administrative Complaint against Dr. Ovadia before the Board alleging that his treatment of three patients, identified in the Administrative Complaint as W.G., F.S., and W.L, constituted gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances (the recognized acceptable treatment will hereinafter be referred to as the "Standard of Care"), a violation of Section 458.331(1)(t), Florida Statutes. On or about October 3, 2002, Dr. Ovadia executed an Election of Rights form, indicating that he disputed the allegations of fact contained in the Administrative Complaint and requesting a formal administrative hearing pursuant to Section 120.569(2)(a), Florida Statutes. Dr. Ovadia's request for a formal administrative hearing was filed by the Department with the Division of Administrative hearings. Treatment of Patient W.G. On August 21, 1997, W.G., who was 53 years of age at the time, presented to Homestead Hospital's emergency room. W.G. arrived a little after 7:00 p.m. (2100 hours). At the time of his arrival and throughout his stay in the emergency room, W.G.'s condition was not life-threatening. Dr. Ovadia was acting as the on-call orthopedic surgeon for Homestead Hospital on August 21, 1997, at all times relevant to the treatment of W.G. W.G. presented with a severe laceration (3 centimeters long) to his right thumb which had been caused by an electric saw blade. W.G. was examined by an emergency room physician1 who concluded that W.G. had a lacerated flexor tendon in his right thumb. The emergency room physician determined that it was necessary to consult with Dr. Ovadia concerning W.G.'s injury. The emergency room physician ordered that W.G. be treated with IV antibiotics, that he be given a tetanus shot, and that x-rays be taken of his thumb. Although there is no note in the medical records, W.G.'s wound was cleaned by the emergency room staff, based upon W.G.'s testimony. The x-ray of W.G.'s thumb indicated that he had a comminuted fracture. The x-ray was taken at 7:18 p.m. (1918 hours), but the observation concerning the x-ray was apparently not made until the following day, August 22, 1997, at 11:17 a.m. Petitioner's Exhibit 2, Page 300. A notation at 9:50 p.m. (2155 hours), indicates that "MD on call [called] ortho Ovadia . . . ." There was no direct testimony from the nurse or physician's assistant who made this note that the he or she actually spoke to Dr. Ovadia or whether Dr. Ovadia was only paged. The following note, however, made at 9:55 p.m. (2255 hours), only five minutes after the first note, indicates that the nurse spoke with Dr. Ovadia at 9:55 p.m. Lacking direct evidence as to what took place at 9:50 p.m., an inference is drawn that Dr. Ovadia did not talk with anyone from the emergency room until 9:55 p.m. and that the first notation relates only an effort to page Dr. Ovadia at 9:50 p.m. At 9:55 p.m., Dr. Ovadia was informed by a nurse or physician's assistant that W.G. had been diagnosed with a severe laceration of the flexor tendon of his right thumb. Rather than indicating that he would come to the emergency room to assess the patient, Dr. Ovadia ordered a pressure bandage to be applied to W.G.'s hand and that W.G. be told to come to Dr. Ovadia's office the next morning for follow-up. Although Dr. Ovadia did not come to the hospital to clean and "drain" the wound, or order staff to do so,2 it was reasonable for him to have assumed that the wound had been cleaned by the emergency room staff,3 as it had been, and there was no medical need to drain the wound because it was an open wound.4 Dr. Ovadia's orders at 9:55 p.m. were not acceptable to the unidentified emergency room physician who was treating W.G. at the time. Dr. Ovadia was, therefore, telephoned "several"5 more times. The evidence failed to prove clearly and convincingly that Dr. Ovadia was specifically requested to come to the emergency room to attend to W.G. or that he refused any request to come to the emergency room to take over the care of W.G.6 Despite the failure of the evidence to prove that Dr. Ovadia refused to come to the hospital to treat W.G., it is clear that Dr. Ovadia did not come to the emergency room to assess W.G.'s condition. Instead, at 10:55 p.m. (2255 hours), apparently after the last of the "several" calls made to Dr. Ovadia, Dr. Ovadia ordered that W.G. be admitted to the hospital. Although the medical notes indicate that Dr. Ovadia's orders at 9:55 p.m. were not acceptable to the emergency room physician, there was no evidence to prove why his or her orders were considered unacceptable. The evidence also failed to prove that the emergency room physician's displeasure with those orders was ever reported to Dr. Ovadia or that the emergency room physician was so displeased that he or she personally contacted Dr. Ovadia to discuss the situation. The only direct evidence, which is uncontroverted by the Department, concerning the dispute between Dr. Ovadia and the emergency room on August 21, 1997, came from Dr. Ovadia. Dr. Ovadia believed that the emergency room physician, upon determining that W.G. had suffered a laceration to the flexor tendon, believed that Dr. Ovadia should attend to the injury immediately. Dr. Ovadia, however, realized that immediate attention to the flexor tendon injury was not advisable or necessary until at least the next morning. Dr. Ovadia's opinion about the lack of need for immediate attention to the flexor tendon laceration was agreed with by all of the physicians who testified in this matter. The medical records do not include an order from Dr. Ovadia to debride the wound, regardless of the proper definition of the term, and Dr. Ovadia admits that he did not give such an order. W.G. left the hospital at approximately 11:50 p.m. (2350 hours).7 W.G.'s hand was ultimately repaired a few days later at another hospital. Allegations of Wrongdoing Concerning W.G. In Count One of the Administrative Complaint, it is alleged that Dr. Ovadia failed to follow the Standard of Care in treating W.G. in that he failed to do the following specific acts: come to the hospital to personally examine or treat Patient W.G. on or about August 21, 1997; clean and drain Patient W.G.'s lacerated thumb; or order that other hospital personnel clean and drain the laceration. The Experts' Opinions; The Standard of Care At least five physicians, including Dr. Ovadia, testified concerning the appropriate Standard of Care required in the treatment of W.G. None of the five physicians were consistent; not even the two experts called by the Department, Steven Lancaster, M.D., and Frank Cook, M.D. Dr. Lancaster opined that the appropriate Standard of Care for the treatment of W.G. was: An open fracture with a dirty wound would generally be treated by a reasonable orthopedic surgeon in a similar situation by some type of irrigation [cleaning] and debridement to minimize the chances of infection occurring at a later point. To address the flexor tendon on a delayed basis is reasonable, and as well to address a fracture on a delayed basis is reasonable. But the open wounds [sic] having not been irrigated, debrided, or assessed until the following day would be unacceptable. Petitioner's Exhibit 1, Page 14, Lines 1-9. Dr. Lancaster goes on to opine that Dr. Ovadia failed to meet this Standard of Care by failing to go the hospital to assess, irrigate [clean], and debride the wound. Id. Dr. Cook, opined that the appropriate Standard of Care for the treatment of W.G. was: . . . . Essentially in the W.G. case my opinion would be the correct treatment would be to debride and clean the wound, and to close the skin. Appropriate antibiotics and appropriate prophylactic for tetanus. Transcript, Volume 1, Page 95, Lines 5-9. Dr. Cook agreed that the foregoing Standard of Care for W.G. had been met in all respects except that the skin over the wound was not closed: If you have an exposed flexor tendon, I think you need to close the skin over that for the simple reason of what we discussed. . . . The tendon is much healthier with the skin closed. It doesn't dry out. Transcript, Volume 1, Page 137, Lines 12-17 Dr. Cook, while he discussed Dr. Ovadia's responsibility for making sure W.G.'s wound was cleaned,8 ultimately concludes that it is only the failure to either close the wound himself or order that someone in the emergency room to do so that constitutes a violation of the Standard of Care: Q Is it your testimony that Dr. Ovadia fell below the standard of care because he did not come to see [W.G.] between 10 and 12:00? A No, ma'am. Q I guess when all is said and done, the remaining criticism of Dr. Ovadia is that he did not temporarily close this wound? A That the skin was not temporarily closed either by himself or one of the staff members. (Emphasis added). Transcript, Volume 1, Page 141, Lines 12-20. Dr. Lancaster's opinion that Dr. Ovadia violated the Standard of Care by not going to the hospital to irrigate or clean the wound is not supported by Dr. Cook's opinion. Ultimately, Dr. Cook opined that Dr. Ovadia was not required to go to the hospital, but that any treatment necessary for W.G. could have been ordered by Dr. Ovadia. Dr. Cook ultimately opined that the only treatment required for W.G. which was not provided was the closure of the wound, not the cleaning of the wound. As to Dr. Lancaster's opinion that Dr. Ovadia violated the Standard of Care by not going to the hospital to "debride" the wound, this opinion is also contrary to Dr. Cook's opinion for the same reasons stated in Finding of Fact 32 and, more importantly, is contrary to any allegation in the Administrative Complaint. There is simply no allegation in the Administrative Complaint that Dr. Ovadia violated the Standard of Care by failing to "debride" the wound. Finally, as to the allegation that Dr. Ovadia violated the Standard of Care by failing to go to the emergency room to "assess" W.G., as opined by Dr. Lancaster, this opinion was also contradicted by Dr. Cook. Dr. Cook did not agree that it was necessary for Dr. Ovadia to go to the hospital for anything, even the one error in treatment Dr. Cook believes Dr. Ovadia made: failing to close the wound. While Dr. Cook opined that the wound should have been closed, he was of the opinion Dr. Ovadia could have met this responsibility by either going to the hospital or by giving an appropriate order. It cannot, therefore, be concluded that Dr. Ovadia was required to go to the hospital for any purpose. Finally, although Dr. Cook's testimony about the need for the wound to be closed was convincing, the Administrative Complaint does not contain an allegation that Dr. Ovadia failed to meet the Standard of Care for failing to ensure, personally or through an order, that the wound was closed. The evidence failed to prove that the Standard of Care for the treatment of W.G. required that the wound be "drained." The evidence failed to prove that Dr. Ovadia's treatment of W.G. violated the Standard of Care as specifically alleged in the Administrative Complaint. Treatment of Patient F.S. On the same night that W.G. presented to the emergency room, August 21, 1997, another patient, F.S., a 26-year-old male, also arrived. F.S. was first seen in the Homestead Hospital emergency room at approximately 6:51 p.m. (1851 hours). F.S. had a 6-centimeter razor knife cut across the palm of his left hand. The cut occurred when F.S. fell from a ladder with the razor knife in his hand. The wound was not limb- or life-threatening. F.S. was first seen by Jim Long (hereinafter referred to as "PA Long")9, a physician's assistant in the emergency room. According to PA Long's notes, the bleeding from F.S.'s hand was "uncontrollable". This note, however, conflicts with the emergency room nurse notes, which indicate that, upon his arrival, F.S.'s "bleeding ha[d] stopped." Based upon the weight of the evidence, it is concluded that the nurse notes are correct. The nurses were more likely the first to see F.S. and note his condition, the note is time specific, indicating that the bleeding had stopped "when he came in" and the note appears just before the first time specific entry of 7:15 p.m. (1915 hours). PA Long's notes on the other hand are not time specific until his note of 9:40 p.m. (2140 hours). F.S. was given IV antibiotics and a shot for tetanus. At approximately 7:15 p.m. (1915 hours), F.S. was "set up for suture . . ." by PA Long. Although there was no indication in the notes as to whether the wound was bleeding at this time, logic dictates the conclusion that it was not bleeding, since PA Long was attempting to suture the wound. At some time during the suturing process, the wound began to bleed uncontrollably. As of approximately 7:45 p.m. (1945 hours), PA Long was "unable to stop bleeding." Once the wound began to bleed, it is likely that pressure was applied to it in an effort to stop the bleeding. These efforts were, however, unsuccessful. Consequently, Dr. Ovadia, who it will be recalled, was the on- call orthopedic surgeon the night of August 21, 1997, was called for a consultation. At some point after PA Long attempted unsuccessfully to suture F.S.' wound, a Dr. Sission,10 who was one of two physicians who saw F.S. in the emergency room, discussed the case with Dr. Ovadia. PA Long's note concerning this call indicates that the time of the call was either 8:40 p.m. (2040 hours) or 9:40 p.m. (2140 hours). The evidence failed to prove what the nature of this telephone conference was. In particular, the evidence failed to prove whether Dr. Sission requested that Dr. Ovadia come into the emergency room to assess and treat F.S. or whether he was satisfied with Dr. Ovadia's response. At approximately 9:45 p.m. (2145 hours), at least two hours after the wound began to bleed uncontrollably, PA Long spoke to Dr. Ovadia. The nurse's notes indicate that the conversation took place at 9:55 p.m. (2155), the same time noted in the notes concerning W.G. that Dr. Ovadia was telephoned about W.G. Dr. Ovadia indicated that he did not want to come to the hospital to see F.S. Instead, he ordered that a pressure bandage be applied and that F.S. be instructed to see Dr. Ovadia in his office in the morning. Dr. Ovadia's order at 9:45 p.m., like his order with regard to W.G., was not acceptable to the "ER physician" treating F.S. at the time. Dr. Ovadia was, therefore, telephoned "several"11 more times. Although the evidence failed to prove that Dr. Ovadia was specifically requested to come to the emergency room to attend to F.S., the evidence did prove that Dr. Ovadia refused to come to the emergency room to take over the care of F.S.12, and that Dr. Ovadia did not in fact come to the emergency room to assess F.S.'s condition. Instead, at 10:55 p.m. (2255 hours), the same time he ordered W.G. admitted to the hospital, Dr. Ovadia ordered that F.S. be admitted to the hospital, despite the fact that it had been three hours since the wound had begun to bleed again. Unlike W.G., during at least one of the follow-up calls to Dr. Ovadia, Dr. Ovadia was told that emergency room staff did not believe that applying a pressure bandage was adequate. Because pressure had been applied after the wound began to bleed without any apparent effect and because the emergency room personnel were concerned that F.S. had cut part of one of the arteries in his hand, the emergency room staff told Dr. Ovadia that his orders were not sufficient. See Dr. Cook's testimony at Lines 3-12, Page 102, Transcript, Volume 1. F.S. left the hospital at approximately midnight.13 Allegations of Wrongdoing Concerning F.S. In Count Two of the Administrative Complaint, it is alleged that Dr. Ovadia failed to follow the Standard of Care in treating F.S. in that he failed to do the following specifically alleged acts: come to the hospital to personally examine or treat Patient F.S. on or about August 21, 1997; or stop the uncontrollable bleeding from the wound on Patient F.S. [sic] palm. The Experts' Opinions; The Standard of Care Again, five physicians, including Dr. Ovadia, testified concerning the appropriate Standard of Care required in the treatment of F.S. As was the case with the experts' testimony about the Standard of Care for W.G., the five physicians who testified about F.S. gave inconsistent testimony. Unlike the testimony concerning W.G., however, the testimony of the two experts called by the Department, Dr. Lancaster and Dr. Cook, was consistent to the extent they testified about at least one of the specific acts alleged in the Administrative Complaint (paragraph "a." quoted in Finding of Fact 49, supra. Dr. Lancaster opined that Dr. Ovadia violated the appropriate Standard of Care for the treatment of F.S.: Q Could you please express you opinion as to this case? A My opinion is that Dr. Ovadia, as the orthopedic surgeon that was contacted being on-call for a hemorrhaging laceration, fell below the standard of care by not coming to the hospital to assess that or take appropriate actions to treat that. Q And why would you believe it necessary to come to the hospital to see this patient? A My understanding of the injuries were that this was a knife wound to the palm with arterial-type bleeding that the emergency room physician had assessed and did not feel comfortable with for fear of continued hemorrhage. That would represent potentially a case where an individual could bleed out from a wound like that. Most of those do not. But the idea would be that this would need to be assessed by someone with more specialization than the emergency room physician to make a decision whether this should be repaired, not repaired, or what direction they should take. By failing to come to the hospital when asked as an orthopedic surgeon on call, this could then fall below the standard of care. Petitioner's Exhibit 1, Page 16, Lines 16-25, and Page 17, Lines 1-10. Dr. Cook opined the following concerning the appropriate Standard of Care for the treatment of F.S. and Dr. Ovadia's failure to meet that Standard: Q We'll go into detail, but at this point, were you able to formulate a medical opinion [concerning F.S.]? A Yes. . . . . Q What would that opinion be? A My opinion was that the emergency room felt uncomfortable dealing with this patient injury. It was their opinion that he cut part of, one of the arteries in the hand. It's called the distal palma arch. It's part of that arterial circulation in the hand. And despite putting pressure dressings on it, they still felt uncomfortable that the bleeding was [un]controlled. That's why the numerous phone calls requesting orthopedic back up or assessment were requested. Transcript, Volume 1, Page 101, Lines 22-25 and Page 102, Lines 1-12. While Dr. Ovadia's expert witness, Jorge Obray, M.D., disagreed with the ultimate opinions of Drs. Lancaster and Cook concerning whether Dr. Ovadia met the Standard of Care with regard to F.S., he did so essentially because of his conclusion that there was insufficient time before Dr. Ovadia should have realized that he should come in to assess and treat F.S. and when F.S. left the hospital. Dr. Obray did agree, however, that, if the bleeding had not been stopped by a pressure bandage within an hour, Dr. Ovadia should have come in and dealt with the patient: Q How long would you expect to wait until the bleeding stopped? A When I use a pressure dressing, I put them for one hour, take them off and see if it stops bleeding. If it stops bleeding, I put a lighter dressing on it and they go home. Q And if the wound for some reason did not stop bleeding, what would be your opinion of treatment then? A Well, then I could have to come in and actually myself do something to stop the bleeding, which usually means put a suture on the arterial arteries, ligate the arteries to control the bleeding. Respondent's Exhibit 4, Page 24, Lines 1-14. This opinion is not inconsistent with the opinions expressed by Drs. Lancaster and Cook. Dr. Cook also agreed that waiting an hour after applying a pressure bandage would not be unreasonable: Q How soon would you have expected [Dr. Ovadia] to come in once he was first called in this case? A With the bleeding hand I think an hour's time is not unreasonable. Transcript, Volume 1, Page 150, Lines 1-6. The difference in the ultimate opinion of Dr. Obray and the ultimate opinions of Drs. Lancaster and Cook is due to Dr. Obray's conclusion that insufficient time had passed between the time Dr. Ovadia ordered a pressure dressing and when he would have been expected to come see F.S. Dr. Obray's factual distinction is not, however supported by the record. Dr. Ovadia knew that F.S.'s hand was bleeding for over three hours when he ordered F.S. admitted to the hospital and it was another hour after that before F.S. left the hopsital: 7:45 p.m.: F.S. began to bleed and unsuccessful efforts were made by the emergency room staff to stop the bleeding; 9:55 p.m.: Just over two hours after F.S.' hand began to bleed, Dr. Ovadia was informed of the situation. Dr. Ovadia ordered a pressure bandage; 10:55 p.m.: During the hour after Dr. Ovadia ordered a pressure bandage, and more than three hours after the bleeding started, "several" calls were made to Dr. Ovadia. Concern over Dr. Ovadia's order to apply a pressure bandage were related to Dr. Ovadia. Dr. Ovadia ordered F.S. admitted; and 11:55 p.m.: Finally, although the evidence failed to prove whether the bleeding stopped at some time after 10:55 p.m., an hour passed before F.S. left the hospital. Based upon the foregoing, and the consistent opinions of Drs. Lancaster and Cook, it is concluded that Dr. Ovadia violated the Standard of Care in his treatment of F.S. by failing to "come to the hospital to personally examine or treat Patient F.S. on or about August 21, 1997, as alleged in the Administrative Complaint, subparagraph "a." quoted in Finding of Fact 49, supra. The evidence failed to prove, however, that Dr. Ovadia violated the Standard of Care in his treatment of F.S. by failing to "stop the uncontrollable bleeding from the wound on Patient F.S. [sic] palm." No expert opinion to support such a finding was given in this matter. Treatment of Patient W.L. On October 5, 1997, patient W.L., a 52-year-old male, was brought to the emergency room of Homestead Hospital at approximately 5:34 p.m. (1734 hours). W.L. had been involved in a severe motorcycle accident and was in a great deal of pain when he arrived. He had suffered multiple injuries, including a limb-threatening open posterior compound dislocation of his right elbow. The injury was serious and required reasonably expeditious treatment. Dr. Ovadia was the on-call orthopedic surgeon at the time of W.L.'s arrival. Dr. Ovadia was in an operating room performing surgery on another patient when he was informed of W.L.'s condition. After completing the surgery, Dr. Ovadia examined W.L., ordered that he be given pain relief medicine, and recommended immediate surgery for W.L.'s dislocated elbow, to which W.L. gave verbal consent at approximately 7:45 p.m. (1945 hours). Dr. Ovadia arranged for the necessary surgery personnel and waited while Leonard D. Benitez, M.D., the on-call general surgeon, was contacted for clearance of the surgery. W.L. was reported in the Emergency Department Nursing Assessment form to be resting comfortably as of 9:00 p.m. (2100 hours), which was about the time that Dr. Benitez finally arrived at the hospital. Dr. Benitez, Dr. Ovadia, and W.L. came together in the CT scan room. A verbal altercation then ensued, between Drs. Benitez and Ovadia, which ended with Dr. Ovadia leaving the CT scan room. Claudette Pinto,14 the nurse supervisor that evening, left the CT scan room with Dr. Ovadia. Ms. Pinto told Dr. Ovadia that she would contact "administration to report the verbal altercation."15 Dr. Ovadia went to the lounge to wait for Ms. Pinto to report back. After waiting in the lounge without any word from Ms. Pinto, Dr. Ovadia contacted Ms. Pinto, who told him that she had called Dr. Russell, the Chief of Surgery for Homestead Hospital and reported the incident. Ms. Pinto told Dr. Ovadia that Dr. Russell was dismissing him from the care of W.L. and that W.L. would be transferred to another hospital for orthopedic care.16 At 9:30 p.m. (2130 hours), Dr. Ovadia spoke with Dr. Russell to confirm Ms. Pinto's message. Dr. Russell confirmed Ms. Pinto's report: Dr. Russell dismissed Dr. Ovadia from further care of W.L. and took over responsibility for arranging for W.L. to be transferred to another hospital.17 Following his dismissal from the care of W.L. by Dr. Russell, Dr. Ovadia left Homestead Hospital and went home. Although his care of W.L. had been terminated by Dr. Russell, his on-call status had not been. Dr. Ovadia, therefore, remained on-call. Emergency room staff were eventually instructed to contact Dr. Ovadia to ask him whether he "would like to resume care of W.L."18 Dr. Ovadia was first contacted by emergency room staff after being dismissed from W.L.'s care and being informed that W.L. would be transferred to another facility, at approximately 11:35 p.m. (2335 hours). This telephone call came approximately two hours after Dr. Ovadia had been dismissed by Dr. Russell. Dr. Ovadia was offered the opportunity to resume care of W.L. Dr. Ovadia informed whoever made the telephone call that he could not do so because he had been removed from W.L.'s care by Dr. Russell.19 Dr. Ovadia indicated that Dr. Russell would have to instruct him to return. Although Dr. Ovadia was surprised that W.L. was still at Homestead Hospital, he still had no authority to counteract Dr. Russell's orders. At approximately 1:00 a.m. (0100 hours), October 5, 1997, Dr. Russell telephoned Dr. Ovadia, as requested. Dr. Russell asked Dr. Ovadia if he would like to resume care of W.L., to which Dr. Ovadia responded "no." Dr. Russell did not tell Dr. Ovadia that he was being reassigned to W.L.'s care or that Dr. Russell no longer planned to transfer W.L. to another facility. At 1:40 a.m. (0140 hours) a nurse's note indicates that Dr. Ovadia was "contacted again [apparently by Dr. Russell] regarding Pt acceptance. Pt was not accepted by Dr. Ovadia." [Emphasis added]. Between the 11:35 p.m. and the 1:40 a.m. nurse's notes and after the 1:40 a.m. note, there follows a series of notes, all of which report the status of W.L., which Dr. Ovadia remained unaware of, indicating the confusion caused by Dr. Russell's decision to transfer W.L. to another facility, describing the ultimate frustration of the emergency room nursing staff, and explaining the ultimate problem with caring for W.L., the inability to obtain insurance authorization for his care:20 0005 Dr. Benitez signs admit orders for Homestead hospital if procedure for ortho surgery can be performed at Homestead hospital . . . . 0020 Awaiting instructions concerning pt transfer or admit instructions. Pt resting comfortably still on spine board. IV intract f/owing KVO . . . . 0200 Pt resting comfortably, multiple facilities, multiple physicians contacted. No admit, no transfer, no surgery, no change in status of Pt care. 0220 . . . . No change in transfer admit status. . . . 0300 . . . No status change regarding admit transfer status. . . . 0325 Finally!! Admit orders provided by Dr. Benitez by telephone. . . . 0331 Pt to be transferred to ICU WEST 3 . . . . 0325 HMO Primary Care provided Dr. Orlando Arana gave authorization for Dr. Benitez to admit patient to Homestead Hospital. 0410 . . . Pt will be physically transferred when bed has been cleaned. . . . . . . . 0530 Pt transferred to hospital bed for comfort. . . . Petitioner's Exhibit 2, Pages 76-77. Although W.L.'s orthopedic injuries, which required immediate care, remained untreated until the day after arriving at Homestead Hospital, Dr. Ovadia's last instruction concerning W.L. was that he was removed from W.L.'s care, that W.L. would be transferred to another facility, and that, if he wished to, he could resume care for W.L., an offer which Dr. Ovadia told Dr. Russell he declined. At no time was Dr. Ovadia informed that Dr. Russell had reversed his decision to transfer W.L. to another facility, even after declining to resume care or that Dr. Russell had not been able to arrange for W.L.'s transfer to another facility. It was not until the day after W.L. first arrived at the hospital that Dr. Ovadia learned that W.L. had not been transferred. Allegations of Wrongdoing Concerning W.L. In Count Three of the Administrative Complaint, it is alleged that Dr. Ovadia failed to follow the Standard of Care in treating W.L. in that: . . . . Respondent failed to come to the hospital on or about October 6, 1997 at approximately 12:30 a.m. to reassume care of Patient W.L. after the patient was cleared for surgery by the general surgeon. The Experts' Opinions; The Standard of Care Again, the same five physicians testified concerning the appropriate Standard of Care required in the treatment of W.L. As was the case with the physicians who testified about the Standard of Care for W.G. and F.S., the five physicians who testified about W.L. gave inconsistent testimony concerning the Standard of Care. More importantly, the opinions of the experts called by the Department were inconsistent, based upon facts not in evidence, or involved errors in treatment not alleged in the Administrative Complaint. Dr. Lancaster testified as follows concerning the appropriate Standard of Care and Dr. Ovadia's failure to meet it: Q Could you express your opinion as to this case. . . . A I have two opinions in regard to the case. The first is that Dr. Ovadia had a duty to the patient once he saw him to treat him orthopedically. And the only reason that he could be released from that is if there was a transferring orthopedic surgeon, which there wasn't. As such, his removal from the case would fall below the standard of care. In addition, being an on-call orthopedic surgeon and being requested to come to the hospital to take care of an orthopedic problem and not doing so would, likewise, fall below the standard of care. Petitioner's Exhibit 1, Page 4, Lines 13-25 and Page 5, Line 1-2. Dr. Lancaster also opined that it was a violation of the Standard of Care for Dr. Ovadia not to resume care of W.L. because he was "an on-call physician, who [was] required to take care of any orthopedic problems at the hospital if so requested by the emergency department." Petitioner's Exhibit 1, Page 5, Lines 24-25, and Page 6, Lines 1-2. Finally, Dr. Lancaster opined that Dr. Ovadia failed to meet the Standard of Care because he failed to follow-up on the passing of the care of W.L. to either another hospital or to another physician, an opinion shared by Dr. Cook. Dr. Cook opined as follows concerning the treatment of W.L.: Q What would a reasonably prudent physician under the same circumstances talking about orthopedics in this circumstance, do in that situation; in light of the knowledge of the facts of this case? A It would be my opinion that when you are called the second time at home and the conversation just is somewhat that, gee, we don't have anybody else to take care of this orthopedic problem. It is because it's in the middle of the night or because the guy doesn't have any money, or because it's too complex for somebody else to handle. Then, I think the reasonably prudent physician assistant is trying to find someone else to care for the patient, and failing that I think the ball is still in your court, it's still on your shoulders. Whatever metaphor you want to use, you need to come in and take care of the situation. Albeit, even to say to the patient, look I know this seems very confusing what's going on here tonight, but the gist of the matter is that this injury needs to be cared for immediately, I'm going to take care of that for you and then tomorrow you're going [to] meet Dr. XYZ and he or she is going to care for you the rest of the time. Or you pick up the telephone and you make the telephone calls and you find somebody or you assist in the transfer. (Emphasis added). Transcript, Volume 1, Page 115, Lines 3-25, and Page 116, Lines 1-4. While the foregoing opinion supports the charges of the Administrative Complaint, Dr. Cook goes on to testify on cross examination as follows: My opinion is, and my problem with the case is, who was looking out for the patient? There is no question that Dr. Ovadia had every reason to be upset with the way this case went initially. There was no question he was compromised by the acts of the chief of the staff or the chief of surgery, whatever the case may be, in both, in front of the rest of the staff members in the emergency room, in front of the patient, just in his own ability to take care of the patient. These is no question, I, as a physician, would have been upset by the whole event. And then to get called later that night and they say, oh, by the way, would you mind coming in and taking care of the mess I've made? But at some point in time when we assume the mantel of a physician, we have to assume that we are going to look out for the patient and put our own egos aside -- that may not be the right term here -- and that's what my problem is. Who was looking out for the patient? I don't expect Dr. Ovadia who was not taking care of the patient, but I do expect that he would have gotten on the phone and called his very best friends and said, hey, I got a heck of a problem. I do expect that he could have called another hospital and said the same thing himself, not relying upon the hospital administrator or did not rely on the chief of staff, who has already shown what a problem he was rather than a solution. That's the way I come down. I know there is not textbook that's going to back that up, it's the way I come down to. (Emphasis added). Transcript, Volume 1, Page 166, Lines 7-25, and Page 167, Lines 1-12. Dr. Cook also testified about a number of actions that Dr. Ovadia could have taken. See, e.g., Transcript, Volume 1, Page 117, Lines 1-25. The actions which Dr. Cook testified Dr. Ovadia could have taken were not, however, actions alleged in the Administrative Complaint and, therefore, are not relevant to this matter. The first of Dr. Lancaster's two opinions, quoted in Finding of Fact 75, supra, that Dr. Ovadia was never appropriately removed from caring for W.L., is rejected because it is inconsistent with the opinion offered by Dr. Cook and is not an act for which Dr. Ovadia has been charged in the Administrative Complaint. The second of Dr. Lancaster's two opinions, also quoted in Finding of Fact 75, supra, is rejected because Dr. Lancaster's understanding of the facts was inconsistent with the evidence presented at hearing. Dr. Lancaster testified that it was his understanding that Dr. Ovadia was contacted after he left the hospital and informed that W.L. had been cleared for surgery and, therefore, Dr. Ovadia was being requested to return. The evidence failed to prove that Dr. Ovadia had been relieved temporarily until W.L. was cleared for surgery or that Dr. Ovadia was "requested" to return; rather, Dr. Ovadia was "offered" an opportunity to return. More importantly, Dr. Lancaster's opinion, given its most generous interpretation, is not supported by Dr. Cook's opinion. Dr. Cook, while initially testifying that Dr. Ovadia failed to meet the Standard of Care because he did not come to the hospital and "take care of the situation" (Finding of Fact 78) later testified that Dr. Ovadia failed to meet the Standard of Care because he failed to arrange for W.L.'s care, an action which did require Dr. Ovadia to come to the hospital (Finding of Fact 79). Therefore, to the extent that Dr. Lancaster opined that Dr. Ovadia should have come to the hospital, Dr. Cook ultimately retreated from such an opinion. As to the opinion of Drs. Lancaster and Cook that Dr. Ovadia failed to meet the Standard of Care by failing to ensure that another hospital or, more particularly, another orthopedic surgeon, had assumed responsibility for W.L.'s care, while their opinions were consistent and credible, their opinions relate to an error in treatment not alleged in the Administrative Complaint. This opinion cannot, therefore, support a finding that Dr. Ovadia failed to meet the Standard of Care in his treatment of W.L. in this proceeding. Finally, Dr. Lancaster's opinion that Dr. Ovadia failed to meet the Standard of Care because he did not resume care of W.L. even though he was "an on-call physician, who [was] required to take care of any orthopedic problems at the hospital . . . " must be rejected for two reasons: first, this opinion was not supported by Dr. Cook's opinions; and, secondly, and more importantly, this alleged error in treatment is not alleged in the Administrative Complaint Based upon the foregoing, it is concluded that the evidence failed to prove that Dr. Ovadia failed to meet the Standard of Care because he "failed come to the hospital on or about October 6, 1997 at approximately 12:30 a.m. to reassume care of Patient W.L. after the patient was cleared for surgery by the general surgeon." Conclusion. The weight of the evidence in this case proved that Dr. Ovadia violated the Standard of Care as alleged in subparagraph 21.a. of Count Two of the Administrative Complaint. The evidence failed to prove clearly and convincingly that Dr. Ovadia violated the Standard of Care as alleged in Count One, subparagraph 21.b. of Count Two, or Count Three of the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine finding that Joseph Ovadia, M.D., has violated Section 458.331(1)(t), Florida Statutes, as alleged in subparagraph 21.a. of Count Two of the Administrative Complaint; dismissing Count One, subparagraph 21.b. of Count Two, and Count Three of the Administrative Complaint; issuing a Reprimand to Dr. Ovadia; requiring the payment of a $5,000.00 administrative fine within a reasonable time after the Final Order is issued; placing Dr. Ovadia on probation for a period of two years; and requiring that Dr. Ovadia attend ethics courses relating to the practice of medicine as directed by the Board of Medicine. DONE AND ENTERED this 10th day of March, 2003, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 2003.
Conclusions The Agency served the Petitioner with a Notice of Intent to Impose Late Fine dated March 24, 2009 notifying the Petition of its intent to impose an administrative fine in the amount of five thousand dollars ($5,000.00), attached hereto and incorporated herein (Ex. 1). Petitioner requested a formal hearing at the Department of Administrative Hearings. The Agency also served the Petitioner with a Notice of Intent to Deny dated May 15, 2009, notifying the Petitioner of its intent to deny its renewal application, a tached hereto and incorporated herein (Ex. 2). The Agency for Health Care Administration ("Agency") has entered into a Settlement Agreement (Ex. 3) with the other party to these proceedings and being otherwise well-advised in the premises, finds and concludes as follows: ORDERED: The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. The Notice of Intent to Impose Late Fine and Notice of Intent to Deny are superseded by this agreement. Filed July 2, 2009 3:19 PM Division of Administrative Hearings. Petitioner has paid an administrative fee in the amount of $2,000.00. Each party shall bear its own costs and attorney's fees. 9Ld..l. _ The above-styled cases are hereby closed. DONE and ORDERED this .;:l,?t:f.y of Leon County, Florida. , 2009, in Tallahassee, Holly enson, Secretar Agency for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW OF PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Tatiana Perez, Owner Lourdes Residence, Inc. 5770 SW 5th Terrace Miami, Florida 33144 (U.S. Mail) MaryAlice H. David Assistant General Counsel Agency for Health Care Administration 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) Finance & Accounting Agency for Health Care Administration Revenue Management Unit 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 (Interoffice Mail) Bernard E. Hudson Agency for Health Care Administration 2327 Mahan Drive, MS #46 Room #310 Tallahassee, Florida 32308 (Interoffice Mail) Jan Mills Agency for Health Care Administration 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the method designated, on this theZ y y of 2009. fAgielnccy fhor HSealthhCa=re A=dministration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873
