Findings Of Fact Based upon the stipulations of the parties, the testimony of the witness, and the documentary evidence received at the hearing, the following findings of fact are made: The Department is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 458, Florida Statutes. The Respondent is, and has been at all times material to this case, a licensed physician in the State of Florida, license no. ME 0045691. The Respondent was born in the U.S.S.R. in 1926 and graduated with honors from the Moscow Medical Institute in 1951. She also received a PhD degree in medical science and obtained the equivalent of board certification as a surgeon oncologist in that country. While employed in the U.S.S.R., Respondent worked for the state. In 1976, Respondent, who is Jewish, immigrated to Israel where she received that country's board certification in surgery. During her residence in Israel, the Respondent was employed as a surgeon in a state-sponsored clinic. From Israel, the Respondent came to the United States in 1983. Respondent passed the ECFMG and the FLEX examinations in 1984. Subsequently, she became licensed in Florida. Currently, Respondent is neither board certified nor board eligible. Respondent attributes her foreign education and age as the primary reasons she has not achieved certification in this country. Because she is not board certified or eligible for certification, Respondent has sought employment where those criteria are not mandatory. Consequently, since becoming licensed in Florida, she has worked almost exclusively at clinics practicing general medicine. In November, 1987, Respondent began employment with Doctor's Diagnostic and Medical Centers (DDMC). Respondent was one of several doctors employed by DDMC. At all times material to this case, DDMC operated walk-in clinics in New Port Richey and Clearwater, Florida. At the outset of her employment with DDMC, Respondent worked only part-time for approximately 16 to 18 hours per week. Her hours increased over time, and, in July or August of 1988, Respondent went to a full-time schedule. Her initial agreement with DDMC provided that Respondent would be paid based upon the rate of $30.00 per hour worked. At that time, DDMC was involved in a program of providing free Doppler examinations for persons requesting that evaluation. Respondent was aware that DDMC engaged in advertisements to solicit patients. All management or administrative decisions such as advertising, billing, or scheduling employees at DDMC were made by a Dr. Neese, the owner of the facilities, or his designee. Respondent did not participate in management decisions. At some early point in her employment at DDMC, Respondent agreed to provide additional services for the company which had formerly been performed by a technician. More specifically, Respondent agreed to interpret Doppler test results. DDMC provided Doppler testing as part of its preventative medicine program. The purpose of the program was to screen patients for potential further treatment or testing. Doppler, cholesterol, and triglyceride testing are all appropriate preventative medicine approaches to determine a patient's potential need for services. According to Respondent, preventative medicine assists in early detection of potentially harmful illnesses. Doppler tests measure or indicate circulation and cardiac function. In the event a Doppler test evidences some abnormality, further testing such as ultrasound or echocardiogram may be suggested as appropriate follow up. While assigned to the New Port Richey clinic, Respondent provided many Doppler interpretations. For each Doppler test interpreted where the patient returned to DDMC for additional testing, Respondent was to receive $60.00. After reviewing the Doppler, some patients would be examined by Respondent. Respondent would perform a limited examination and take a medical history. If the testing and examination suggested some abnormality, Respondent would advise the patient as to the options available. In the event the Doppler showed no problem, Respondent would not recommend additional testing. Where the patient's Doppler results and additional information suggested a medical basis for additional testing, Respondent advised patients that they could confer with their regular physician, have the testing elsewhere if they would like, or could have the testing done at DDMC. At Dr. Neese's direction Respondent kept a list of the patients for whom she had interpreted the Doppler results and for whom additional testing was to be performed at DDMC. Respondent did not confer with all of the patients on the list. According to Respondent some patients on her list did receive additional testing at DDMC. She had presumed she would be compensated in accordance with her agreement; however, Respondent did not receive compensation for that work. For the period November 11, 1987 to December 31, 1987, Respondent received $5,685.00 in compensation from DDMC.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Professional Regulation, Board of Medicine, enter a final order finding the Respondent guilty of violating Section 458.331(1)(i), Florida Statutes, placing the Respondent on probation for a period of two years, and imposing an administrative fine in the amount of $2500.00. DONE and ENTERED this 24th day of May, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1991. APPENDIX TO CASE NO. 90-6331 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 4 are accepted. With regard to paragraph 5, it is accepted that an individual known to Respondent as Dr. Neese hired her for work at the DDMC and controlled the administration or management of that facility. Otherwise, rejected as irrelevant. Paragraph 6 is accepted as to clinics at New Port Richey and Clearwater which would be the only locations material to this case. With regard to paragraph 7, with the deletion of the words "independent contractor" which are rejected as a conclusion of law, it is accepted. Paragraphs 8 and 9 are accepted. With the deletion of the word "scheme" which is rejected as argumentative, paragraph 10 is accepted. Paragraph 11 is rejected as contrary to the weight of the evidence. With the deletion of the word "scheme" (see comment above), paragraph 12 is accepted. Paragraphs 13 and 14 are rejected as contrary to the weight of the credible evidence. Paragraph 15 is accepted. Paragraphs 16 and 17 are rejected as argumentative or contrary to the weight of credible evidence. Paragraph 18 is accepted. Paragraphs 19 through 21 are rejected as irrelevant or contrary to the weight of the credible evidence. Paragraphs 22 and 23 are accepted. Paragraphs 24 through 30 are rejected as irrelevant, speculative, or contrary to the weight of credible evidence. Paragraph 31 is accepted. Paragraphs 32 and 33 are rejected as argumentative or contrary to the weight of the credible evidence. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 through 5 are accepted. With regard to paragraphs 6 and 7, it is accepted that those paragraphs state Respondent's perception of her situation. This record does not establish, in fact, the basis for her failure to obtain certification, eligibility or hospital privileges. Paragraphs 8 through 10 are accepted. The first sentence of paragraph 11 is rejected as a conclusion of law or irrelevant. The balance of the paragraph is accepted. Paragraphs 12 through 15 are accepted. With the deletion of the last sentence which is rejected as contrary to the weight of the evidence, paragraph 16 is accepted. Respondent was, in fact, aware that some of the patients for whom she had interpreted the Doppler did return to the clinic for additional testing. The first sentence of paragraph 17 is accepted. The remainder of the paragraph is rejected as comment, argument, or contrary to the weight of the evidence. It is accepted that no patient records were admitted into evidence. COPIES TO: Richard A. Grumberg Sr. Medical Atty. DPR 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Grover C. Freeman 4600 West Cypress, Ste. 500 Tampa, FL 33607 Dorothy Faircloth Executive Director DPR 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Jack McRay General Counsel DPR 1940 N. Monroe St., Ste. 60 Tallahassee, FL 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.
The Issue Whether Petitioner utilized the correct Medicaid per diem rates at its facility for the 18-month audit period identified in the November 7, 2011, Medicaid Examination Report.
Findings Of Fact By letter dated May 8, 2012, which included the Medicaid Audit Report that is the subject of this proceeding, Respondent gave Petitioner notice of its Medicaid reimbursement rate errors, subject to Petitioner’s right to contest the determinations of error and to demonstrate that its rates were correct in an administrative hearing. A timely Petition for Formal Administrative Hearing involving disputed issues of material fact was filed on behalf of Petitioner. After filing the hearing request, Petitioner took no further action to contest Respondent’s audit results. Despite having knowledge of these proceedings through its registered agent, Petitioner failed to comply with the Initial Order or the Order of Pre-Hearing Instructions, and failed to appear at the final hearing. Based on Petitioner’s failure to appear and offer evidence, there is no evidentiary basis on which findings can be made regarding the Medicaid Audit Report, other than it was provided to Petitioner with a notice of rights.
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 dismissing the Petition for Formal Administrative Hearing and adopting the Medicaid Audit Report as final agency action in this proceeding. DONE AND ENTERED this 11th day of March, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 11th day of March, 2015. COPIES FURNISHED: John F. Gilroy, III, Esquire John F. Gilroy III, P.A. 1695 Metropolitan Circle, Suite 2 Tallahassee, Florida 32308 (eServed) Steven Lee Perry, Esquire Office of Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 (eServed) Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Elizabeth Dudek, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (eServed)
The Issue Whether the Petitioner, Agency for Health Care Administration (Petitioner or Agency), is entitled to a Medicaid reimbursement and, if so, in what amount.
Findings Of Fact The Petitioner is the state agency charged with the authority and responsibility of administering the Florida Medicaid Program. As part of this authority, the Petitioner is required to recover Medicaid overpayments when appropriate. See § 409.913, Fla. Stat. (2006). At all times material to the allegations of this case, the Respondent was a licensed physician and a Medicaid provider subject to the provisions of Chapter 409. As a Medicaid provider, the Respondent was authorized to provide services to eligible patients but was obligated to comply with the Medicaid Provider Agreement in doing so. The Medicaid Program contemplates that authorized providers will provide services to eligible patients, bill the program and be paid according to the Medicaid standards. All Medicaid providers must practice within the guidelines of the Physicians Coverage and Limitations Handbook and applicable law. Providers may be audited so that it can be verified the process was appropriately followed. In this case, the Respondent was audited. According to the audit findings, the Respondent received payment for services that he did not perform. Dr. Eiber (a physician not part of the Respondent’s practice group) reviewed and signed off on x-ray studies and reports for which the Respondent billed and was paid by Medicaid. Dr. Eiber is a Medicaid provider but he is not affiliated with the Respondent or the Respondent’s group. In order for the Respondent to bill and receive payment for Dr. Eiber’s work, the latter physician would have to be listed and identified within the group in which the Respondent practiced. The Respondent was responsible for all billings for which he received payments. In connection with billing, the Respondent was required to maintain and retain all Medicaid- related invoices or claims for the audit period. In this regard, the Physician Coverage and Limitations Handbook specifies that when a radiological study is performed in an office setting, either the physician billing the maximum fee must have performed or indirectly supervised the performance and interpreted the study; or if a group practice, a member of the group must perform all components of the services. That procedure was not followed. When the Agency disallows a paid Medicaid claim, it must seek to recover the overpayment from the Medicaid provider who received payment on the claim. This is the basis of the “pay and chase” methodology used in the Medicaid program. The claims are paid, subject to audit, and recovery is sought when the claim is disallowed. Based on the audit findings in this cause, the Agency seeks $32,935.96 as an overpayment of Medicaid claims paid to the Respondent. The Petitioner also seeks an administrative fine in the amount of $1000.00. The Respondent was given the results of the audit and afforded an opportunity to respond and provide additional information to the Agency to show that the amounts billed were correct. The Respondent has presented no supplemental information to corroborate the correctness of the claims at issue.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a Final Order sustaining the Final Audit Report and finding an overpayment against the Respondent in the amount of $32,9935.96. The Final Order should also impose an administrative fine in the amount of $1,000.00. S DONE AND ENTERED this 21st day of February, 2007, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 2007. COPIES FURNISHED: Craig A. Brand, Esquire Law Offices of Craig A. Brand, P.A. Grove Forest Plaza 2937 Southwest 27th Avenue, Suite 101 Miami, Florida 33133 Willis Melvin, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III, Mail Stop 3 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Craig H. Smith, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Dr. Andrew C. Agwunobi, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of medicine in Florida pursuant to Sections 20.165 and 20.43, and Chapters 456 and 458, Florida Statutes. Respondent is at all times material to this case a licensed physician in the state of Florida. As such, he is subject to disciplinary action for failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonable, prudent similar physician as being acceptable under similar conditions and circumstances. Iribar has been disciplined on two prior occasions. Both cases involved standard of care violations. In Case No. 113487, the Board of Medicine entered a Final Order on April 20, 1992, disciplining Respondent for multiple violations of Section 458.331(1)(t) related to, among other things, prescribing errors. In Case No. 1991-03407, the Board of Medicine entered a Final Order on July 17, 1995, disciplining Respondent for additional prescribing violations. On August 25, 1997, C. H. required medical attention for pain and swelling in his left knee. By the time he was "worked in" at the office of his primary care physician, C. H. was unable to get around without the aid of crutches. In seeking relief for his knee problem, C. H. set in motion a chain of events which would cost him his life. C. H. had been for years a patient at the clinic where Iribar practiced medicine in partnership with Dr. Raul Alvarez (Alvarez). C. H. had a complex medical history, and had long been under the care of Alvarez. Iribar had never seen C. H., but was covering his partner's emergencies on August 25, 1997. C. H.'s knee swelling, which was visible from across a medical examining room, plainly qualified as a matter which needed prompt attention. The clinic had an extensive chart on C. H. It contained records of many office visits, tests, and information concerning care received at other locations which occurred over a period of years in which Alvarez served as C. H.'s primary care doctor. As a partner in the practice, Iribar would of course have been authorized to read every word on the chart before, during or after C. H.'s visit. Numerous references in the chart address real or perceived allergies. At many places in C. H.'s chart, an allergy to aspirin in indicated. In many other places, C. H. is said to be allergic to penicillin as well as aspirin. Iribar's focus in his lone encounter with C. H. was totally upon the need for emergency attention to the swollen and sore knee. On August 25, 1997, it was the routine in the Iribar/Alvarez practice to maintain a form detailing the patient's history, including allergies, on the inside left cover of the file. C.H.'s chart had such a document and it reflected an allergy to penicillin. Iribar freely admits that he never looked at C. H.'s chart prior to prescribing penicillin for his injured knee. Instead, Iribar testified that he conversed with C. H. while examining him and felt that he could obtain from C. H. an accurate answer to the question of whether he was allergic to any medications. During the examination and treatment process, C. H. was articulate regarding his complex medical history. He enumerated at least six medications which he was currently taking. Iribar testified that he asked C. H. if he was allergic to any medications and C. H. responded "aspirin." Iribar states that he informed C. H. that he was going to place him on oral penicillin, which might later be discontinued depending upon the outcome of lab results. According to Iribar, C. H. failed to inform him of a penicillin allergy. For reasons more fully set forth below, the undersigned does not credit Iribar's recollection that he in fact asked C. H. if he had allergies. Neither does the undersigned credit Iribar's testimony to the effect that he informed C. H. of his intent to administer penicillin. Apart from that dispositive fact, the undersigned does credit Iribar's account of his encounter with C. H. Based upon that testimony and the corroborating opinion of the experts for both sides, the evidence established that Iribar entered the examining room and noted that C. H. had a large left knee effusion with pain, redness, and increased temperature to touch. Iribar properly performed an arthrocentesis (a puncture through a joint capsule to relieve an effusion), removing 20cc of yellow pus-like material to relieve the pain. He then prescribed ibuprofen for pain and Pen VK, which is in fact penicillin, to prevent infection. Penicillin is, for most patients, safe and effective for the prevention of infection following a procedure such as the one performed on C. H. Alternative antibiotics exist and would have been prescribed for C. H. had Iribar been aware of the existence of a possible allergy. For an allergic patient such as C. H., the result of taking penicillin can be, and in this case was, swift cardiac arrest followed by a coma from which the patient never emerged. He died five months later. Expert witnesses for both sides agree, and the undersigned finds, that it would have been a gross violation of the standard of care to prescribe penicillin to a person known to be allergic. There is no contention that Iribar actually knew of the allergy, and Iribar did not intend any harm to C. H. Instead, the evidence established that Iribar was covering his partner's emergency and trying to help the patient. Thus, the issue is whether Iribar fell below the standard of care of failing to take reasonable steps to determine whether C. H. had a penicillin allergy. In this case, the totality of the record compels the conclusion that Iribar did not take even a first step. He did not inquire of C. H. as to whether he had any allergies, nor did he look at the patient's chart, which would have placed him on inquiry notice regarding the existence of a penicillin allergy. In failing to take either precaution, he fell below the standard of care. Iribar's disciplinary history reveals prior failures in adhering to the standard of care with respect to the professional obligation to ask the questions a doctor needs to ask to determine if a drug should or should not be prescribed. Additionally, his careless response to the Board of Medicine's inquiry regarding his treatment of C. H. is telling. In an undated letter to Board investigator, Lidice Muniz, Iribar stated, ". . . I asked the patient in front of two medical assistants aiding me [Ana Dickinson and Barbara Olesco] if he was allergic to any medication, he replied 'Aspirin' and he denied all other drug allergies." Common sense suggests that Iribar would have been scrupulously accurate in communicating in writing to state investigators about a matter of such importance. Thus, the undersigned takes seriously Iribar's statement that two assistants witnessed the exchange referenced in the letter. Yet, at the final hearing, neither Iribar nor Olesco claimed that this exchange was witnessed by one, let alone two medical assistants. The undersigned carefully observed Iribar's demeanor while under oath. His recollection that he engaged C. H. on the question of allergies is determined to be untrustworthy. Specifically, the undersigned does not credit Iribar's assertion that he asked his patient about allergies. In light of this finding, it is not necessary to address whether Iribar would have been bound to review the chart had C. H. in fact been asked about allergies. With respect to C. H., Respondent failed 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 in that he failed to take any step to afford himself the opportunity to know what if any allergies C. H. had prior to prescribing the medication which caused the patient's death.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and having reviewed the Recommended Range of Penalty under the Florida Administrative Code, it is RECOMMENDED that the Board enter a final order finding Respondent guilty and imposing the following penalty: A fine of $10,000; continuing medical education classes specified by the Board of Medicine; a six- month suspension; two years of probation, with terms set by the Board of Medicine; a letter of reprimand; and requiring Respondent to report to the Board of Medicine regarding procedures he has or will implement to assure appropriate inquiry of patients regarding their allergies in accordance with the standard of care currently prevailing. It is also RECOMMENDED that the Board impose costs associated with the investigation and prosecution of this case in compliance with Section 456.072(4), Florida Statutes. DONE AND ENTERED this 14th day of January, 2003, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 14th day of January, 2003. COPIES FURNISHED: Sean M. Ellsworth, Esquire Dresnick, Ellsworth & Felder, P.A. 201 Alhambra Circle Sun Trust Plaza, Suite 701 Coral Gables, Florida 33134-5108 John E. Terrel, Esquire Department of Health 4052 Bald Cypress Way Bin C-65 Tallahassee, Florida 32399-3265 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
