Findings Of Fact At all times relevant hereto, respondent, Mark L. Klugman, was licensed as an optometrist having been issued license number OP 1758 by petitioner, Department of Professional Regulation, Board of Optometry (Board). He currently resides at 16021 Villa Drive, Hudson, Florida. On or about August 15, 1987 respondent had an occasion to examine Sandra J. Dinkins for the purpose of diagnosing her eyes and to prescribe and furnish contact lenses. She had never previously warn contact lenses. Dinkins selected respondent at random from the telephone directory because his office was nearby and open on Saturdays. At that time, respondent had an office in Tampa, Florida. After being given contact lenses, and making a total of six office visits, Dinkins was unhappy with the lenses and eventually went to another optometrist. A complaint was later filed with the Board, and this culminated in the issuance of an administrative complaint charging respondent with incompetence, gross or repeated malpractice and violating a Board rule. Respondent requested a hearing to contest these charges. According to Dinkins, the contact lenses prescribed by Dr. Klugman caused "total blurriness" and "hurt her eyes." After Dinkins complained about this condition, respondent told her to "wear them for a week and come back." Because she could not see with the lenses, Dinkins was forced to take them out after the first day. On her next appointment, respondent ordered a new left lens. When this did not correct the problem, Dinkins complained again. Respondent told her to keep wearing them and return in a week. This process continued for several weeks until she gave up and went to another optometrist. By this time, Dr. Klugman had ordered another set of lens, but these were never dispensed since the patient did not return. Doctor Klugman suspected that Dinkins' problems were due to the type of lenses he had prescribed rather than the prescription. He acknowledged at hearing, however, that although his suspicion was "logical," it was not correct. He now agrees the patient needed a corrected prescription for astigmatism to resolve her problem. After Dinkins' complaint was filed with the Board, she was examined by a DPR consultant, Dr. John R. Walesby, who has been in the practice of optometry for over thirty years. Doctor Walesby found that respondent's prescription for Dinkins' left eye was in error by 1.00 diopter of cylinder. After obtaining a corrected prescription and new contact lenses, Dinkins' vision measurably improved although she acknowledged she still has a few problems with her left eye. By failing to properly diagnose her acuity, Dr. Walesby concluded that, while respondent exerted a considerable amount of time and effort in trying to fit the patient, he had failed to conform with the minimum standards of optometry in the community. By rule 21Q-3.007 the Board has mandated that, at a minimum, certain procedures be performed by an optometrist while conducting a visual analysis of a patient, and that evidence of the performance of these procedures be recorded on the patient's records. A copy of Dinkins' patient records has been received in evidence as petitioner's exhibit 1. While the Board's complaint charged that respondent violated the foregoing rule in seven respects, at hearing its expert conceded that he had overlooked or misinterpreted certain entries. While the record is less than a model of clarity as to which procedures were performed and recorded on the records, it is found that procedures regarding the family medical history, family ocular history, and visual field testing were not performed or recorded on the records and therefore such deficiencies constitute a violation of the rule. Respondent pointed out that Dinkins could only visit his office on Saturdays and this made reexaminations difficult. However, his principal defense is that the customer wanted a refund and he did not give one, and this prompted the complaint. According to Dr. Klugman, he would not give a refund because the final set of lenses ordered for Dinkins was nonexchangeable and he could not return them to the manufacturer. In addition, he offered various financial records to show that he is heavily burdened with college loans and credit card bills and did not have the financial ability to make a refund. Even so, this does not excuse respondent from complying with Board rules and statutory requirements.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsections 463.016(1)(g) and (h), Florida Statutes (1987), that he be fined $1000, and that his license be placed on probation for twelve months under such conditions as the Board may deem appropriate. The remaining charge should be dismissed. DONE and ORDERED this 23rd day of March, 1989 in Tallahassee, Florida. DONALD R. ALEXANDER 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 23rd day of March, 1989. APPENDIX Petitioner: Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 6. Covered in finding of fact 4. Covered in finding of fact 3. Covered in finding of fact 5. 7-8. Covered in finding of fact 8 to the extent they are consistent with the evidence. Covered in finding of fact 9. Rejected as unnecessary. COPIES FURNISHED: Laura P. Gaffney, Esquire 130 North Monroe Street Tallahassee, Florida 32399-0750 Mark L. Klugman, O.D. 3611-49th Street North St. Petersburg, Florida 33710 Pat Guilford Executive Director Board of Optometry 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth E. Easley, Esquire 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact The Respondent, Deborah Sanchez Nelson, L.P.N., admits that on or about February 23, 1978, on the sixth floor of Palmetto General Hospital, Hialeah, Florida, several ampules of a controlled drug, to wit: Demerol (Meperedine) Injectable, were discovered to have been tampered with in that the fluid levels were not uniform as is true of untampered ampules. The Respondent was assigned to medications on the sixth floor of said hospital and was questioned concerning the incident and admitted to having taken said narcotic. A search of the Respondent's purse by an officer of the Hialeah Police Department revealed a vial labeled as water, containing approximately 12 cc of clear liquid, which upon being chemically analyzed proved to be Meperedine. Deborah Sanchez Nelson had worked at Palmetto General Hospital from February 10, 1978, until the incidents described above on February 23, 1978. Nelson has voluntarily not worked as a licensed practical nurse since that date and is currently employed at J. C. Penny's as a salesperson. Freda Drees, Director of Nursing at Palmetto General Hospital, first met Nelson upon her employment on February 10, 1978. Drees observed Nelson during the hospital's orientation program and later after she assumed her duties with the hospital. Drees described Nelson as a good nurse. Mitchell M. Ross, Director of Pharmacy, Palmetto General Hospital, testified that he had known Nelson for approximately four years, having first met her while employed as a pharmacist at Parkway General Hospital. Nelson was employed at Parkway General Hospital serving on the night shift. Ross had occasion to observe Nelson and stated that she was very good with patients. Ross stated that there had never been any trouble with Nelson at Parkway General Hospital involving drugs and that because of his position with the hospital he would have been aware of any discrepancies or violations. Dorothy Ware, State Probation Officer, Department of Corrections, testified that she had known Nelson since July, 1978, when Nelson was assigned to her as a probationer. Nelson had been placed on probation by the Broward County Court as a result of her conviction for leaving the scene of an accident which occurred on approximately February 28, 1978. Ware stated that Nelson admitted her drug involvement to her during their initial interview and sought assistance from Ware in dealing with her drug problem. Nelson was referred by Ware to a drug rehabilitation program and immediately contacted this program. However, testing by the program revealed that Nelson was not using drugs, and she was not placed in the program. Ware stated that Nelson was very responsible, had met all obligations of her probation to include paying the cost of her probation as directed by the court. Ware stated that Nelson was very remorseful about her drug involvement and having taken drugs from the hospital. Ware recommended that no action be taken that would deny Nelson her right to practice practical nursing. Deborah Sanchez Nelson testified on her own behalf and admitted she had been involved with drugs for eight months. She stated that her involvement arose when she became personally involved with an individual who was involved with drugs and started using drugs herself. The drug of use was Demerol, which her friend was supplying. She stated that she had not admitted to herself that she was addicted and needed drugs until the incident at Palmetto General Hospital. At that time she had broken off her relationship with the person with whom she was involved and who was supplying her with the drug, Demerol. Nelson stated that the accident which had led to her conviction for leaving the scene of an accident had occurred because she was distraught over her theft of drugs from the hospital, the termination from her job, and the realization that she was addicted to drugs. After the accident, Nelson was admitted by a psychiatrist to the hospital for treatment. Nelson stated her involvement with drugs was over and that she had a better self-image of herself. Her testimony concerning her no longer being involved with drugs was confirmed by Ware's testimony that the study done of Nelson by the drug referral service revealed that Nelson was not using drugs. Nelson stated that she missed nursing, desired to continue practicing nursing, and would submit to any conditions established by the Board if permitted to continue in nursing.
Recommendation The admissions of the Respondent clearly establish that she violated the provisions of law cited above. The testimony in mitigation establishes that the Respondent was, prior to her involvement with drugs, a fine nurse who was good with patients. The Respondent's involvement with drugs arose out of a personal involvement with an individual who was also involved with drugs and supplied the Respondent with Demerol, which was the drug of abuse. The Respondent testified that she had not admitted to herself her addiction until her supply of Demerol was cut off, when her personal relationship with the individual supplying her was terminated. Nelson has sought professional treatment for her personal and drug problems, overcoming her drug addiction and apparently the personal problems which gave rise to it. She has voluntarily not practiced nursing for approximately one year. The Director of Nursing for Palmetto General Hospital and the Director of the Pharmacy at Palmetto General Hospital both voluntarily testified in her behalf. Her probation officer voluntarily appeared and confirmed that Nelson was no longer involved in drugs, was deeply remorseful over her involvement with drugs and stealing drugs from the hospital, and had responsibly met all of the terms of her probation for conviction of an unrelated offense. Her probation officer specifically recommended that no action be taken to deny Nelson the opportunity to practice nursing. Nelson testified and exhibited remorse and concern over her actions, freely admitted her addiction, and stated that she had overcome her drug problem and personal problems and turned her life around. She stated that she missed nursing and desired to return to nursing. The use of drugs by a nurse is one of the most serious violations of Chapter 464 because of the access available to medical personnel and because they must be mentally and physically capable of attending patients whose lives and well-being are entrusted to them. If possible, the theft of drugs from patients, or the adulteration of drugs for patients' use, is more serious because it affects the strength of the drugs administered and subjects the patient receiving them to pain and suffering. However, addiction is a powerful thing, and it overcomes the natural inclinations and professional training one has received. Unquestionably, those guilty of such violations should be appropriately disciplined. Generally, in a case involving patients' drugs a suspension of no less than two years would be recommended. However, in this instance the Respondent voluntarily removed herself from nursing nearly one year ago, which should be considered in determining the final penalty. Also, her own efforts and success in overcoming her personal problems and addiction must be considered. Based on the foregoing Findings of Fact Conclusions of Law and Facts in Mitigation, the Hearing Officer would recommend that the Board suspend the license of the Respondent for 24 months, give credit to the Respondent for the 12 months she has voluntarily not practiced, and suspend the last six months of the remaining 12 months, permitting the Respondent to return to practice under conditions established by the Board in order that the Board may maintain closer supervision over the Respondent during her initial return to practice. DONE and ORDERED this 27th day of February, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1007 Blackstone Building Jacksonville, Florida 32202 Geraldine B. Johnson State Board of Nursing 6501 Arlington Expressway, Bldg B Jacksonville, Florida 32211 Deborah Sanchez Nelson 19414 NW 30th Court Miami, Florida 33162 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA STATE BOARD OF NURSING IN THE MATTER OF: Deborah Sanchez Nelson As a Registered Nurse Case No. 78-2056 19414 N. W. 30th Court License Number 32957-1 Miami, Florida 33162 /
The Issue The issues to be resolved in this proceeding concern whether the Respondent has violated Section 458.331(1)(j) and (x), Florida Statutes, and, if so, what if any penalty should be imposed.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating the practice of medicine pursuant to Chapter 458, Florida Statutes, including conducting disciplinary proceedings for alleged violations of the provisions of the Chapter. The Respondent is a licensed physician in the State of Florida, holding license number ME0072783. The Respondent is a native of Ethiopia, where he was reared and educated. During the Ethiopian revolution he was drafted into the Ethiopian military and served as a lieutenant in combat for approximately two years. When a communist- dominated regime seized power in the country the Respondent was forced to flee, ultimately securing a scholarship to study medicine in Yugoslavia. He attended and completed medical school in that country, but had his passport revoked when he refused to join the communist party in Yugoslavia. Ultimately he fled that country and secured political asylum in the United States. He worked at a number of jobs, including as a security guard, for some years before he was able to take the Foreign Medical Graduate's Examination of Medical Science. He passed that examination in 1988 and attended the Harvard Medical School in the Department of Psychiatry in Boston. Thereafter, upon completing internship and residency training, he ultimately located in Tallahassee, Florida, in 1997 and became licensed in the State of Florida. The Respondent testified that he has, from time to time used, his personal history of adversity to help his patients by illustrating to them that, no matter what difficulties they experience, that they can, by persistence, overcome any adverse circumstance. He does this in an attempt to motivate his patients to get better. The Respondent has more than, 1000 patients in his practice and specializes in the treatment of children in the context of psychopharmacology. He does not practice psychotherapy. He has never before had a complaint filed against him by the Board of Medicine. In February of 1999, the Respondent and Dr. Thu Thai agreed to form a partnership whereby they would share overhead and make referrals to each other. Specifically, the Respondent and Dr. Thai agreed that the Respondent would refer all of his adult patients to Dr. Thai and that Dr. Thai would refer child patients to the Respondent. Before that arrangement could become effective, however, Dr. Thai had to establish himself with privileges at Tallahassee Memorial Hospital (TMH), in order to handle in-patient cases. As a consequence, the Respondent and Dr. Thai agreed to formalize their practice relationship in the summer of 1999. They formally opened their joint practice on June 25, 1999. B.R. moved to the Tallahassee area sometime in the latter part of the 1990's, either shortly before or after leaving her abusive husband. After moving to Tallahassee B.R. was under extreme stress due to lack of financial resources from her estranged husband. She was in constant pain as a result of severe scoliosis in her back, for which she had nine prior surgeries. The surgeries were unsuccessful in the sense that she was left with chronic, often severe pain, as a result. Because of the constant pain she was forced to take prescription pain medication on a daily basis. She began to suffer from significant depression due to the constant pain, her severe financial stress and, as she testified, became addicted to pain medication and at times could not function without it. She sought treatment from numerous physicians to be sure that she always had a supply of prescription pain medication. She became more and more concerned about money due to being estranged from her husband and his financial support. She often had insufficient funds to buy food and still pay her rent. In early 1999, she began to have suicidal ideations. She was thus suffering from severe emotional and physical stress. Finally, on March 31, 1999, she admitted herself to the TMH. She was extremely underweight at this time and in constant physical pain and was suffering from severe depression. She was also suffering from suicidal ideations upon her admission. Dr. Abebe was assigned as her treating psychiatrist at TMH. The psychiatric treatment for each psychiatric patient at TMH involved group therapy and individual treatment during the treating psychiatrist's rounds. During B.R. treatment sessions at TMH, according to her testimony, Dr. Abebe would talk about topics from his personal history at times. They discussed a recent incident or incidents in which her husband or former husband had forced her to have intercourse. An issue arose in her testimony concerning Dr. Abebe purportedly telling her that he had had a vasectomy. She maintains that he told her this on an occasion in June of 1999 at her apartment when they purportedly had sexual intercourse and she expressed fear of becoming pregnant. She maintained he reassured her by telling her that he had had a vasectomy. Dr. Abebe however, testified that he may indeed have told her that he had had a vasectomy, but it was in the context of treatment at TMH when they discussed the sexual abuse purportedly committed by her husband and her concern about becoming pregnant as a result; he counseled her concerning various means of pregnancy prevention. In any event, B.R. testified that she developed trust and confidence in Dr. Abebe because she felt he really cared about her. She felt he would be able to help her overcome her depression. B.R. was discharged from TMH on April 12, 1999, and was ordered to follow-up with Dr. Abebe with an appointment on May 4, 1999, for continued psychiatric treatment and medication. B.R.'s first appointment with Dr. Abebe, for treatment was on May 4, 1999. On April 28, 1999, she saw him, however, because she reported to him that she had lost her medication. He gave her enough medication on that occasion, by prescription, to provide her until her regularly scheduled appointment on May 4, 1999. B.R. did not appear for her May 4, 1999, appointment with Dr. Abebe. He or his secretary dispatched the police to her residence to check on her welfare. When the police came to her apartment she believed that this was another indication that Dr. Abebe was a "good doctor" and cared about her getting better. Dr. Abebe then saw B.R. again on May 10, 1999, for treatment and medication refills. B.R. admitted herself to the hospital again on May 15, 1999, staying in the hospital until May 18, 1999. During this hospital stay she was treated by Dr. Alcera for depression. Dr. Abebe refused to treat B.R. during this hospital stay. She was assigned to the treatment of Dr. Alcera during that admission to the hospital. Dr. Abebe did accept her for follow- up treatment, however. She was discharged on May 18, 1999, and told to follow-up in her treatment with Dr. Abebe, with an appointment on May 27, 1999. She did not appear for that appointment. A second occasion arose when B.R. called the Respondent's office requesting a prescription, alleging that something had happened to her supply of medication. On this occasion on or about June 7, 1999, she called the Respondent's office requesting prescriptions, stating that her husband had thrown away her medicine, or words to that effect. This resulted in B.R.'s seeing the Respondent at his office on June 10, 1999, when he gave her prescription for sixteen tablets of Lortab. He then saw her at his office on June 15, 1999, and gave her a prescription for a weeks supply with four refills. Refilling the prescription did not require her to again see the Respondent. B.R. apparently was also obtaining prescriptions from at least one other doctor for larger amounts of pain medication during the period of late May and early June 1999. On cross-examination, B.R. admitted that she had engaged in "doctor shopping" as she termed it, in order to get prescriptions from the Respondent and other Tallahassee area physicians. During the course of her testimony, B.R. also admitted to forging prescriptions, on at least two occasions. The Respondent saw B.R. on June 15, 1999, for the last time. On that date he formally discharged B.R. to the care of Dr. Thai, who was opening his practice with the Respondent on June 25, 1999. B.R. maintains that the Respondent transferred her care to Dr. Thai because he told her that he could no longer see her as a patient because of their alleged sexual relationship. The Respondent, on the other hand, contends that he discharged B.R. to the care of Dr. Thai because Dr. Thai's practice is focused on adult patients, while the Respondent's practice involves treating children. In any event, B.R. made an appointment on June 15, 1999, to see Dr. Thai on July 19, 1999. She kept that appointment and Dr. Thai met with the patient on July 19, 1999. On that occasion, B.R. said nothing to Dr. Thai concerning any inappropriate conduct on the part of the Respondent, making no mention of visits to her apartment or any description of sexual activity or encounters between B.R. and the Respondent. Dr. Thai's only other contact with B.R. was as a result of a conversation with a pharmacist. A pharmacist called him to verify the authenticity of a prescription that B.R. was attempting to have the pharmacist fill. The result of that conversation was that Dr. Thai denied that he had issued that prescription and directed the pharmacist to report the matter to the police, it being discovered that B.R. had forged or otherwise altered that prescription, which she admitted during her testimony. After the last appointment B.R. had with Respondent on June 15, 1999, B.R. was arrested and incarcerated, on approximately June 17, 1999 on a charge of grand theft. This was related to the fact that she had had a rental car in her possession for a substantial period of time in excess of the time provided for in the rental contract, which apparently related to the period of time she was incapacitated in the hospital. While she was incarcerated she called the Respondent to attempt to get him to bail her out of jail. He refused to do so. B.R. maintains that the Respondent began to visit her at her residence in early June and visited her residence on approximately six to eight occasions, all of which were purported to be in June. On the first occasion, according to her version of events, he came to her residence when she was not present and left her a note indicating that he was concerned about her and wanted to check on her welfare. A short time later, in early June, he allegedly again came to her residence and on or about this time she maintains that he discussed his sexual attraction to her and that she performed an act of oral sex with him. On another occasion in early June prior to her incarceration on or about June 17, 1999, she testified that he came to her residence and they engaged in sexual intercourse. She maintains that a third sexual encounter occurred in late June of 1999, after her incarceration, when he had refused to bail her out of jail, on which occasion they purportedly had sexual intercourse. B.R. claims that the Respondent always called her house before arriving and that she did not have a home phone, but only a cell phone. She maintains that on one occasion he left her money and a telephone credit card. She also contends that the Respondent left her prescriptions for Lortab on her coffee table, the last two times that she claims they had sexual encounters. The Respondent denies that he ever went to B.R.'s residence and denies that they ever engaged in any sexual activity. The Petitioner advances the Respondent's cell phone records (Joint Exhibit 6) as probative of B.R.'s version of these events. B.R. pinpointed the three alleged sexual encounters as occurring in June, both before and after her incarceration, which occurred on or about June 17, 1999. The Respondent's cell phone records, however, show no phone calls made to B.R.'s cell phone from the Respondent's cell phone during the month of June. Although B.R. testified that her cell phone was her only phone, B.R.'s cell phone records are notably absent from the record in this case. The only phone records introduced into evidence, the Respondent's, did not establish that the Respondent called B.R. during the month of June 1999. The Petitioner postulates five phone calls made between July 1, 1999, and August 15, 1999, from the Respondent's cell phone to B.R.'s cell phone, as probative of B.R.'s version of these events to the effect, that the Respondent would always call her before coming over to her house, including on those occasions when they purportedly had a sexual encounter and when he allegedly later attempted to unsuccessfully schedule visits to her house. It is important to note, however, that each of the five calls at issue are recorded as "one minute" phone calls, which indicates the minimum charge for simply dialing a number. Thus, it is also entirely possible that the Respondent either only called B.R. for a period of one minute or less, or even never reached B.R. with a phone call or only reached her voice mail, on any of the five occasions at issue. Both the Respondent and Dr. Thai testified that they frequently receive pages from their answering service indicating a patient call, which under the standard of care they must return, according to Dr. Thai. Dr. Thai testified that in fact he has been called by a patient of the Respondent and returned that call and told the caller that the caller would need to call the Respondent as the treating physician. Likewise, as to the five phone calls at issue in July and August 1999, the Respondent may have returned the phone call and found that the caller may have been a patient of Dr. Thai's, including, at that point in time, patient B.R., who was by that time under the care of Dr. Thai. Thus, the Respondent may have not had a conversation at all, in such a one-minute-or-less- duration phone call; may have merely referenced the caller to call Dr. Thai if the caller who had left a page was a patient of Dr. Thai (including possibly patient B.R.); or the Respondent may have indeed called B.R. In any event, five phone calls during July and August, of one- minute duration or less, during a period of a month and a half are not persuasively probative of B.R.'s claim concerning the Respondent's always calling before attempting to schedule a rendezvous scheduling with B.R. at anytime in June, July or August 1999. The Petitioner also contends it to be inculpatory that the Respondent shared personal information, particularly his method of birth control, with B.R. B.R. claimed that on one occasion when they are supposed to have engaged in sexual intercourse she expressed fears of becoming pregnant and that the Respondent told her not to worry, that he had had a vasectomy. This is unpersuasive. On direct examination B.R. related that it was the Respondent's treatment style to relate personal experiences or difficulties in his own life in an effort to motivate her to overcome obstacles and adversity. B.R. likened the Respondent's motivational style to "Tony Robbins." This is consistent with the Respondent's description of his method of interaction or counseling with his patients, where he described recounting personal experiences of adversity in his own life in an effort to motivate patients to overcome difficulties and get better. It is thus plausible that the Respondent may have mentioned his own method of birth control when the B.R., in the hospital, raised a concern about becoming pregnant by her abusive husband as a result of sexual abuse by her husband. The Petitioner maintains that the Respondent's testimony in this regard unbelievable. The Petitioner contends that it is incredible that the Respondent would merely discuss methods of birth control with a patient describing a rape or sexual abuse by her husband. The record, however, does not indicate that this is the only counseling advice or comment that the Respondent made to B.R. concerning alleged sexual abuse by her husband. The record does not establish that this was the only response he made to her description of sexual abuse by her husband. Standing alone the Petitioner's description of events concerning his counseling of B.R. during her hospital stay does not establish that he was insensitive to the psychiatric ramifications of alleged sexual abuse by B.R's husband. B.R. claims that she became distraught and extremely depressed as a result of the alleged sexual exploitation by the Respondent. She recounts, in essence, that she felt abused and essentially worthless and treated like a "prostitute" by the Respondent's alleged conduct, described above. She testified that she became so distraught as a result of the Respondent, her conduct that she attempted suicide and purportedly overdosed on 84 Lortab tablets with the result that she was hospitalized on August 19, 1999. She states that this was a voluntary admission to the Apalachee Center for Human Services or as she described it the "Eastside Facility." She testified that on this occasion she elected to admit herself at that facility, as opposed to TMH, because she did not want to have any contact with the Respondent as a potential treating physician, if she had been admitted to TMH. Upon the occasion of that admission however, B.R. did not make any allegations to any of the personnel of that facility that the Respondent had engaged in the inappropriate behavior described above. She contends that she failed to do so because she did not want to "get the Respondent in trouble" and, due to embarrassment or other reasons, was reluctant to discuss the matter, liking herself to a rape victim who is reluctant to describe such an incident. The record, however, belies the occurrence of such a suicide attempt as the reason for this hospitalization. B.R., while testifying that she took 84 Lortabs, a massive overdose, testified that her stomach was not pumped. Moreover, she indicated that this was a voluntary admission and, based upon her testimony, she apparently had the presence of mind to make an election as to which facility she wanted to be admitted to. Dr. Thai, however, testified unequivocally that an overdose of 84 Lortabs would kill any person if the person's stomach was not pumped on an immediate basis, even if 84 Lortabs had not been consumed at once, but over as much as a twelve hour period. Thus, it is found that this description of a suicide attempt occurring, and as being based upon extreme distress caused by the purported sexual abuse of B.R. by the Respondent is false and a false attempt to inculpate the Respondent in the conduct described by B.R. as having occurred in June of 1999. In essence, the Petitioner's theory of this case is that the Respondent provided prescriptions for drugs to B.R. in exchange for sex with her. Specifically, B.R. claimed that the Respondent left her a prescription for Lortab following an alleged sexual encounter, before her incarceration, in mid-June and a second prescription for Lortab following another alleged sexual encounter after her incarceration, or in late June. The only prescriptions for Lortab in evidence, however, coincide with regular office visits and/or phone calls for refills. The Petitioner alleges that the Respondent wrote another prescription for Lortab dated June 1, 1999. The Respondent denied that allegation. The disputed prescription was produced the morning of the hearing and conditionally admitted, based upon the stipulation that the disputed prescription would be subjected to handwriting analysis, by agreement of counsel. The disputed prescription was later withdrawn by the Petitioner when the Petitioner conceded that the Eckerd's pharmacy in question had made a mistake and that really no prescription dated June 1, 1999, had been written by the Respondent. The Petitioner sought to produce a second disputed prescription, dated July 15, 1999, which was not disclosed to the Respondent until it was presented by the Petitioner on cross-examination. This is not a rebuttal exhibit and had been in the possession of Petitioner's counsel for at least most of the day when it was advanced in an effort to impeach upon cross- examination. The prescription was excluded from evidence for reasons reflected in the transcript of this proceeding. The Petitioner's proposed fact findings contained in the Petitioner's Proposed Recommended Order based upon this prescription are not accepted. Parenthetically, it is noted that the Respondent conceded that the signature on this July 15, 1999, prescription is his but that he did not write the other information, (the patient's name and the date) on that prescription. If indeed B.R. obtained that prescription on July 15, 1999, or if it was written on that date, this would contradict B.R.'s testimony that, after their alleged third sexual encounter in late June that she was so disgusted with the Respondent that she refused to see him, admit him to her residence or even answer his phone calls. Alternatively, it is also possible that the date on the prescription was altered by B.R. or, under Petitioner's theory of the case it could conceivably have been a prescription signed by the Respondent and given to the B.R. during their purported rendezvous during the month of June 1999, which she completed or filled out with her name and the July 15th date at some point. Given the fact that the Respondent candidly admitted the signature on the prescription was his, and given the fact that the B.R. admitted to forging other prescriptions on more than one occasion and for the other reasons of record for which B.R.'s testimony is found uncreditable, this is the least likely explanation. In any event, because of the problematic circumstances surrounding the advanced Exhibit even had it been admitted into evidence the prescription dated July 15, 1999, can be accorded no evidentiary weight. In essence, it must be found that the Respondent's testimony and evidence are more credible and worthy of belief than that adduced by the Petitioner in the form of B.R.'s testimony and related Petitioner evidence. In addition to the reasons found above for accepting the Respondent's testimony and evidence over that offered by the Petitioner, there is, for instance, record evidence that B.R. may have made these allegations at least in part for pecuniary gain. The Respondent's Exhibit three, in evidence, demonstrates this as a possible motive, especially in light of B.R.'s testimony regarding to the subject matter of the letter which is Respondent's Exhibit three, to the effect that she sought the sum of $25,000.00 from the Respondent. This was proposed evidently in return for declining to pursue her complaint to, or "cooperation" with the Petitioner agency.1/ B.R. also testified that she was transferred to the care of Dr. Thai so that the Respondent could continue his purported illicit affair with her. Dr. Thai and the Respondent, however, testified that B.R. was going to be transferred to Dr. Thai's care in the summer of 1999 in any event, by an agreement which dates from their February 1999 decision to combine their practices and because Dr. Thai focused his practice on adult patients and Dr. Abebe focused on child patients. B.R. was in fact transferred to Dr. Thai contemporaneously with the time that he moved his practice to the offices of the Respondent. More importantly, Dr. Thai testified that the Respondent introduced him to B.R. during her March 1999 hospitalization at TMH and informed her that this would be the psychiatrist he would send her to as an outpatient. B.R.'s testimony is also contradicted by documentary evidence that when she was re-admitted to TMH, in May of 1999, that the Respondent would not accept her as a patient. B.R. also testified that the Respondent went to her house on six or eight occasions. She testified that she told her mother of his coming to her residence, but no testimony was taken from B.R.'s mother which might have corroborated her version of these events. B.R. also testified that she wrote a letter to TMH complaining about the Respondent coming to her home, before they allegedly engaged in sexual activity and that the hospital had responded to her with a letter of its own requiring her to fill out a form with certain information regarding the events she had purportedly related to hospital personnel. No such correspondence or documents were produced by the Petitioner to corroborate this testimony. B.R. testified that the Respondent told her, upon one of the alleged early visits to her apartment, that even when she had been in the hospital when he had first begun treating her, that he was sexually attracted to her. She attributed the statement to him, regarding that time period, as being to the effect that he was "f-ing her with his eyes." He denied making such a statement. Her testimony in this regard, and in relating her version of events, concerning his purported visits to her residence, is belied by the fact that when she missed her May 4, 1999, appointment, after she was released from TMH, that instead of using that as an excuse to go check on her at her home that he directed his secretary to summon the police to check on her welfare at her home. He sent a third party to B.R.'s home rather than going himself. B.R. testified that the Respondent gave her money, a phone credit calling card, and prescriptions under the Petitioner's theory that the Respondent was trading "drugs for sex." Yet, at the very point in time when the Respondent was allegedly involved in an illicit affair with B.R., she became incarcerated and the Respondent refused to bail her out of jail. B.R.'s testimony simply is not clothed with an aura of truth. It lacks circumstantial probability of reliability. B.R., in describing the Respondent's purported visits to her residence, and their purported, illicit sexual activities, described walking him to the door of her residence and observing him drive away in his car. She described a late- model car of dark green color. The Respondent on the other hand testified that his car at this time "cream colored" was a 1995 Mazda. Moreover, when the patient voluntarily admitted herself to the Apalachee Center for Human Services a second time, on September 20, 1999, when she made the allegations that the Respondent had engaged in inappropriate, sexually-related behavior with her, she purportedly told her version of these events to a staff member, Linda Johnson, as well as to mental health counselor Andrew Daire and Dr. Degala, M.D. Testimony and documentary evidence adduced through Andrew Daire and Dr. Degala are in evidence, by way of their recounting of the report of the alleged inappropriate conduct which B.R. made to them. This apparently initiated the investigation resulting in the instant proceeding. However, staff counselor Linda Johnson was not called as a witness by the Petitioner. In summary, the testimony of the Respondent and the evidence adduced by the Respondent is accepted as more credible and worthy of belief than the testimony of B.R. and the evidence adduced by the Petitioner. It is found that the above- referenced, alleged inappropriate conduct on the part of the Respondent, involving visits to the patient's residence and purported sexual activity with the patient B.R., did not occur.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties it is RECOMMENDED: That a final order be entered finding that the Respondent did not violate the statutory provisions charged by the agency and that the administrative complaint be dismissed in its entirety. DONE AND ENTERED this 7th day of February, 2003, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 7th day of February, 2003.
The Issue Whether Respondent's license to practice medicine should be disciplined for alleged violations of Chapter 458, Florida Statutes.
Findings Of Fact At all times material to this proceeding, Respondent was licensed as a physician in the State of Florida having been issued licensed number ME 0025012. On January 1, 1990 Respondent's license to practice medicine in the State of Florida became inactive. Respondent was not aware that his license had become inactive because he had not received the usual notice from the Board that his license was due to be renewed. The notice had been mailed to Respondent's last known address. At Respondent's own admission, Respondent continued to practice medicine in the State of Florida after his license had become inactive. However, Respondent immediately ceased such practice when he learned that his license was inactive. Respondent's license has never been reactivated. Given these facts, Respondent's practice of medicine after his license had become inactive constitutes only a minor violation of Section 458.331(1)(x), Florida Statutes. The penalty for such a violation should be minor. Therefore, a letter of reprimand would be appropriate in this case. In 1984, Dr. Cooper was employed as a staff physician in the emergency room of Tallahassee Memorial Regional Medical Center. On March 30, 1984, Patient D.J.D., a nineteen year old male, ingested an unknown quantity of the drug Asendin. Asendin is a tricycline antidepressant drug. Patient D.J.D. told his roommate what he had done. His roommate called an ambulance. The ambulance transported Patient D.J.D. to Tallahassee Memorial Regional Medical Center (TMRMC) While D.J.D. was being transported to TMRMC, the Respondent, who was on duty in the TMRMC emergency room, gave the paramedics who were treating Patient D.J.D. en route orders by phone to give patient D.J.D. 30 cc's of Ipecac with water to induce vomiting. The Ipecac was administered but Patient D.J.D. did not vomit. When the paramedics arrived at the hospital at 8:16 p.m., Patient D.J.D. was coherent and responded appropriately to questions. He was conscious and was sitting up with his eyes open. Approximately twenty minutes after D.J.D. arrived at the hospital, he had a grand mal seizure. Respondent was made aware of the seizure. Respondent performed an initial evaluation of Patient D.J.D. and wrote orders for an intravenous line, blood and urine analysis. The emergency room nurse did not inform Respondent that D.J.D. was an overdose patient. However, Respondent did not question the ER nurse about Patient D.J.D.'s history. At approximately 9:00 p.m., Patient D.J.D. had a second grand mal seizure. Following Patient D.J.D.'s second grand mal seizure, the Respondent administered Valium, Phenobarbital and Dilantin. After the drugs were administered Respondent asked the ER nurse about D.J.D.'s history. Although Respondent was made aware that Patient D.J.D. had overdosed on Asendin, at no time did he pump or lavage Patient D.J.D.'s stomach or administer charcoal. Charcoal is used with Asendin overdose patients to absorb the drug from the patient's system. It is usually diluted with sorbitor and pushed into the stomach. Gastric lavage involves washing the stomach contents out with saline solution. Dr. Jack F. Kareff, M.D., who has completed a three year residency in emergency medicine and who has been with Humana Hospital Bennett Emergency Department in Plantation, Florida, testified as an expert in emergency medicine. Dr. Kareff was of the opinion that Respondent should have lavaged or pumped Patient D.J.D.'s stomach and/or administered charcoal and that by not doing so, Dr. Cooper failed to practice medicine with that level of care, skill and treatment that is recognized as being acceptable in his treatment of Patient D.J.D.'s overdose. Respondent stated that he did not lavage Patient D.J.D.'s stomach or administer charcoal since it was not appropriate treatment for a patient who is seizing. Respondent stated that this is difficult to do as the teeth are clenched and it is difficult to force a tube in. However, the evidence showed that Patient D.J.D. had an oral air tube placed by either Respondent or the nurse after his first seizure. In fact, at one point during the treatment of Patient D.J.D., Respondent replaced the patient's airway tube. Such evidence indicates that Respondent's reasoning is not well founded. Respondent also states that he did not lavage patient D.J.D.'s stomach or administer charcoal because Asendin is absorbed very rapidly. However, the better evidence demonstrated that in the case of an overdose of the tricyclic antidepressants, like Asendin, gastric stasis is accomplished. Therefore, the stomach does not empty as fast as it usually does and the drug may still be in the stomach up to 12 hours after ingestion. The failure of Dr. Cooper to administer such treatment and immediately inquire about the patient's history constitutes a violation of Section 458.331(1)(t), Florida Statutes by falling below the standards of practice of medicine recognized in the community. Dr. Kareff testified that the Respondent failed to keep written medical records justifying the course of treatment of Patient D.J.D. in that the records did not justify Respondent's failure to pump or lavage his stomach and administer charcoal. However, in 1984, a doctor was not required to keep records justifying a course of treatment not given and it is questionable whether practicably speaking such records can be kept. Therefore, Respondent is not guilty of violating Section 458.331(1)(m), Florida Statutes, and Count II of the Administrative Complaint should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED: That the Board of Medicine enter a Final Order finding Respondent guilty of violating Sections 458.331(1)(t) and (x), Florida Statutes, and that Respondent be: 1) reprimanded, 2) fined $4,000.00, and 3) placed on probation for a period of two years. If is further recommended that Count II of the Administrative Complaint be dismissed. DONE and ORDERED this 1st d ay of October, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1991. APPENDIX TO CASE NO. 90-2212 The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 and 23 of Petitioner's Proposed Findings of Fact are adopted, in substance insofar as material. The facts contained in paragraph 24 of Petitioner's Proposed Findings of Fact were not shown by the evidence. COPIES FURNISHED TO: Francesca Small Senior Attorney Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Gerald Cooper 2114 Owens Street Tallahassee, Florida 32301 Dorothy Faircloth Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 =================================================================
The Issue The question presented is whether Respondent violated Section 456.072(1)(bb), Florida Statutes (2006), or Section 458.331(1)(nn), Florida Statutes (2006), by means of violating Florida Administrative Code Rule 64B8-9.007(2)(b), and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of medical doctors pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes. At all times material to the Administrative Complaint, Respondent was a medical doctor licensed by the State of Florida, having been issued license number ME 70981. Respondent is also certified by the American Board of Internal Medicine with a subspecialty in interventional cardiology. No evidence was presented to indicate that Respondent has ever been disciplined by the Florida Board of Medicine. On March 12, 2007, Dr. Elsakr was caring for two patients at Halifax Medical Center (Halifax). Patient M.D. was an 84-year-old Caucasian female born on March 22, 1922. F.E. was an 82-year-old Caucasian female born on February 5, 1925. Both women were scheduled for cardiac procedures to be performed on March 12, 2007, but only F.E. was scheduled for a cardiac catheterization. M.D. and F.E. shared the same semi-private room at Halifax. During the night before the scheduled procedures, one of the patients asked to be moved away from the window, and as a result, the two patients' bed locations were reversed. Halifax had procedures in place related to the transport of patients from one area of the hospital to another. The policy required that a staff member referred to as a transporter was required to check at least two patient identifiers on the patient's arm band to confirm a patient's identity. The arm band contains four identifiers: the patient's name, date of birth, a medical record number and a visit number. While any of the four may be used, the patient's name and date of birth are preferred. Patient M.D. was supposed to be transported for a heart catheterization the morning of March 12. However, the hospital policy regarding patient identification was not followed, and the wrong patient, M.D. as opposed to F.E., was transported to the catheterization lab (cath lab). Apparently, the transporter relied on the room and bed placement of the patient as opposed to following the protocol for affirmatively checking the patient identifiers. Once a patient was transported to the cath lab for a procedure, Halifax had a separate "pause" or "time out" protocol designed to ensure that the correct patient was present and the correct procedure was performed. The procedure was designed to be consistent with standards provided by the Centers for Medicare and Medicaid Services (CMS) and the Joint Commission for Accreditation of Hospitals, and the practices used by other hospitals. After transport and before a sterile field was created, the patient would be prepared for the procedure. As part of that preparation, a nurse was supposed to verify the patient's identity and confirm with another staff member that the patient's chart was the appropriate chart. The chart would then be provided to the person referred to as the recorder located in the adjacent control room outside the sterile field. The control room is separated from the sterile field by a plexi-glass wall, through which the recorder can observe everything taking place in the cath lab. The recorder would create a chronological log of the procedure, documenting the exact time when events took place. The physician performing the procedure would not necessarily be in the cath lab at the time the nurse verified the patient's identity. The chronological log for M.D. does not indicate that the patient's identity was confirmed or if it was confirmed, who confirmed it. Once a patient was prepped and draped, and the sterile field created, the recorder would call out the patient's name, procedure, procedure equipment, site and side of the procedure to be performed. The accuracy of the information was to be confirmed by a staff member saying "yes" or nodding his or her head. This procedure was considered by the hospital to be its "time out" procedure. The physician would be present but not actually participate in the time out, and would observe the time- out taking place. In this case, although the recorder called out F.E.'s name and the procedure she was scheduled to have, M.D. was actually present. Notwithstanding this error, an unidentified staff member either nodded or verbally confirmed that the information recited by the recorder was correct. Dr. Elsakr arrived at the cath lab after the patient was prepped but before the time out called by the recorder. He was present, but did not verbally participate, in the time out process. Before it took place, he met with the recorder in the control room to review the medical chart prior to the procedure. The medical chart reviewed was for F.E. After the time out, Dr. Elsakr approached the patient and stood near her head. By this time, the patient was fully draped, with blankets and surgical drapes covering all of her body except the surgical entry area (in this case her groin) and a portion of her face. Dr. Elsakr spoke to the patient, calling her by the first name of the patient F.E., and telling her, "[F.], this is Dr. Elsakr. I'm going to get started with your heart cath. Okay?" This interaction was consistent with his standard practice before he began a procedure, in order to give patients a level of comfort. M.D. did not initially respond to the name F., but said "yes" in response to Dr. Elsakr's question. He then moved down to the groin area, again called her by name (F.E.'s first name), and told her what she would feel as he started the procedure. She nodded her head and the procedure was begun. A catheterization was completed on the right side of the heart and begun on the left side. At that point, staff reported to Dr. Elsakr that the patient was the wrong patient. The procedure was immediately stopped. Dr. Elsakr immediately informed the patient, the patient's daughter, and the patient's primary care physician. He also noted the mistake on M.D.'s medical chart. Halifax Hospital undertook an investigation of the events leading to the procedure. The purpose of its investigation was to determine whether there was a breach in hospital safety protocols and to prevent any recurrence of the error. Dr. Donald Stoner, Halifax's Chief Medical Officer, testified that the fault lay with hospital staff, and not with Dr. Elsakr, and that if he had been the doctor involved, he likely would have done the same things as Dr. Elsakr. Halifax accepted full responsibility for the incident and independently compensated the patient for the incident. The hospital also determined that it would be inappropriate for Dr. Elsakr to be subject to any discipline for the incident by Halifax with respect to his privileges. Immediately after discovering that the wrong patient had the heart cath, Dr. Elsakr instructed that the patient should not be charged in any way for the procedure. While patient M.D. clearly could have been harmed by having to undergo the procedure, information about her condition was obtained that was actually a benefit to her.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Florida Board of Medicine enter a Final Order finding that Respondent, Ashraf Elsakr, M.D., violated Section 456.072(1)(bb), Florida Statutes, and Section 458.331(nn), Florida Statutes by means of violating Florida Administrative Code Rule 64B8-9.007(2)(b). As a penalty, it is recommended that the Board issue a letter of concern, and impose a $5,000 fine. In addition, Respondent should be required to obtain five hours in continuing medical education in the area of risk management, perform 25 hours of community service, and give a one-hour lecture on performing procedures on the wrong patient. DONE AND ENTERED this 30th day of June, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 30th day of June, 2010.
