The Issue The issues in this case are whether Respondent violated Section 458.331(1), Florida Statutes (1995) 1/ by failing to practice medicine according to the applicable standard of care, by performing unnecessary and improper breast examinations on eight patients, by failing to document the examinations in his medical records, and by documenting tests that were not performed, and, if so, what, if any, penalty should be imposed pursuant to Florida Administrative Rule 59R-8.001. 2/
Findings Of Fact 1. Petitioner is the state agency responsible for regulating the practice of medicine. Respondent is licensed to practice medicine pursuant to license number ME0062132. Education, Experience, And Reputation Respondent practiced neurology in Jacksonville and St. Augustine, Florida, until Petitioner issued an emergency suspension of his license in December, 1995. Respondent is not a board certified neurologist. Respondent was graduated from medical school in India, where he was born, and received some post-graduate medical training there. The post-graduate training included a six-month "house post" in obstetrics and gynecology ("OB/GYN"). A "house post" is the equivalent of a residency in the United States. In 1983, Respondent moved to the United States and passed all required examinations. From 1985 through 1987, he completed an 18-month residency in the Department of Neurology, University of Minnesota, Veteran's Administration hospital. In 1988, Respondent completed a rotating internship at the University of Minnesota and a three-year residency in neurology in 1991. In June, 1992, he completed a one-year fellowship in physio-neurology. Respondent moved to Florida and was employed at the Jacksonville Neurological Clinic. In 1994, Respondent established his own neurology practice in St. Augustine under the name of the St. Augustine Neurological Clinic (the "Clinic"). From 1985 through April 8, 1994, Respondent had an exemplary professional career, without incident, in multiple jurisdictions. He has a reputation in the professional community for competency and veracity. Medical Records Respondent examined and treated the eight patients involved in this proceeding in his Clinic. The eight patients are D.R., L.W., L.Y., L.B., C.L., D.S., L.T., and D.P. Respondent performed 16 breast examinations on these patients. Respondent performed one breast examination on D.R., L.W., L.Y., and C.L.. He performed two breast examinations on D.S. and L.T., five breast examinations on L.B., and three breast examinations on D.P. Respondent documented the breast examinations on D.S. in his medical records and one of the breast examinations on D.P. Respondent failed to document the other breast examinations in his medical records. Breast Examinations: Necessity and Propriety Petitioner charged Respondent with performing breast examinations that were unnecessary and inappropriate. The preliminary factual issue for each patient is whether a breast examination was medically necessary. The secondary issue is whether the breast examination actually given was performed in an appropriate manner and for appropriate purposes. The issue of whether Respondent documented medical tests that he did not actually perform is discussed in the context of each patient. Neurology involves the diagnosis and treatment of diseases of the brain, spinal cord, nerves, and muscles. Neurologists generally obtain patients by referral from other primary care physicians including family physicians and OB/GYNs. Neurologists can approach similar neurological problems differently, including different initial examinations for new patients. Some neurologists give a new patient a general physical examination as well as a neurological examination. General examinations may include a breast examination. A breast examination by a neurologist is medically necessary in some instances. A definite connection exists between breast cancer and some neurological problems. Breast cancer can metastasize into the brain and cause a brain tumor and headaches. Breast cancer can metastasize to the lung and cause other problems. There are a variety of symptoms patients may experience when breast cancer spreads to other parts of the body depending on whether the disease spreads to the brain, the spinal cord, the skull, or the blood stream. If a neurologist has training in other medical specialties, it is appropriate for the neurologist to use that training in diagnosing and treating neurological patients. Respondent has training in breast examinations from medical school, his "house post," and his rotating internship. Respondent has performed hundreds of breast examinations over the past 15 years. He routinely performs breast examinations on approximately one-third of his patients. A breast examination that is performed appropriately has no negative side effects. Some neurologists perform breast examinations and some do not. D.R. is a 49-year-old female. On June 7, 1995, Dr. Ernest Carames, D.R.'s primary care physician, hospitalized D.R. in Flagler Hospital for chest pains. Dr. Carames requested Respondent to evaluate D.R. for possible seizures and multiple sclerosis. Respondent performed a neurological examination of D.R. in the hospital on June 7, 1997. As part of the examination, Respondent ordered a magnetic resonance imaging scan (an "MRI") which was performed on June 8, 1995. Respondent scheduled D.R. for follow up in his office on June 21, 1995. At the follow up on June 21, 1995, Respondent took D.R. to his office and reviewed her condition with her. After a few minutes in the office, Respondent took D.R. to an examining room and performed a breast examination. The breast examination was not medically necessary. Dr. Carames was D.R.'s primary care physician and was treating D.R. for chest pain. Objective findings available to Respondent prior to the breast examination were insufficient to establish a medical necessity for, or to otherwise justify, a breast examination by Respondent. Respondent had previously ruled out multiple sclerosis and seizures. Respondent's medical records were insufficient to establish a medical necessity for, or to otherwise justify, a breast examination by Respondent. Respondent performed the breast examination inappropriately. Respondent instructed D.R. to sit on the examination table without an examination gown. Respondent and D.R. were alone in the examination room. Respondent lifted D.R.'s brassier ("bra") over her breasts. Respondent cupped D.R.'s left breast, then her right breast, and back to the left breast. He alternated between D.R.'s two breasts for several minutes. Respondent put his hands around each breast. He twisted and pinched the nipple of each breast. D.R. informed Respondent that she had a rash under her breasts and that his examination was painful. She explained that the skin affected by the rash would split and bleed if Respondent lifted her breasts too much. Respondent ignored D.R.'s complaints and explanation. When D.R.'s skin bled, Respondent terminated the examination. Respondent met D.R. in his office. He informed her that the MRI results were negative and that he had ruled out multiple sclerosis and seizures. Respondent never informed D.R. of the medical necessity for the breast examination. D.R. had never received a breast examination that was performed in the manner performed by Respondent. Respondent documented tests for D.R. in his medical records that he did not perform. Respondent's medical records for D.R. indicate that Respondent performed: a general physical examination, including a blood pressure and pulse; a head and neck examination; a chest examination; a motor examination; a test of deep tendon reflexes; a sensory examination; and an examination of the patient's station, gait, and coordination. Except for the last examination listed in the preceding paragraph, Respondent did not perform the examinations documented in his medical records. The evidence was less than clear and convincing that Respondent did not examine D.R.'s station, gait, and coordination by observing her in the examination room and from his office to the examination room. L.W. is a 37-year-old female. On June 27, 1995, L.W. presented to Respondent with complaints of arm pain. Respondent took L.W. to his office and reviewed her condition. After a few minutes in the office, Respondent took L.W. to an examining room and performed a breast examination. The breast examination was not medically necessary. L.W. presented with arm pain seeking a neurological examination. Neither the objective findings available to Respondent prior to the breast examination nor Respondent's medical records were sufficient to establish a medical necessity for, or to otherwise justify, a breast examination by Respondent. Respondent did not inform L.W. of a medical necessity for a breast examination. Respondent performed the breast examination inappropriately. Respondent instructed L.W. to remove her top and lie down on the examination table without an examination gown. Respondent and L.W. were alone in the examination room. Respondent placed the palms of his hands on L.W.'s breasts and rubbed her breasts in a circular motion. He then unsnapped L.W.'s shorts and unzipped them. He asked L.W. if she was married. Respondent put his hands just above L.W.'s pubic region. He pressed and rubbed the area. L.W. asked Respondent why he was examining her pubic area for arm pain. Respondent did not provide an explanation. Respondent terminated the examination. Respondent never examined L.W.'s arm and performed no other examinations. Respondent documented tests for L.W. in his medical records that he did not perform. Respondent's medical records for L.W. indicate that Respondent performed a comprehensive medical examination. A comprehensive medical examination requires: an extensive history of the presenting complaints; a review of the patient's medical, family, and social history; a review of her current medications and allergies; a review of at least 10 endocrine systems; and complete neurological and physical examination. Respondent did not perform a comprehensive medical examination of L.W. L.B. is a 37-year-old female. On January 20, February 22, March 22, March 30, and April 6, 1995, L.B. presented to Respondent with complaints of trauma-induced headaches from an automobile accident. Respondent performed five breast examinations on L.B. in approximately 76 days. None of the breast examinations were medically necessary. L.B. presented with headaches caused by trauma. Neither the objective findings available to Respondent prior to each of the breast examinations nor Respondent's medical records were sufficient to establish a medical necessity for, or to otherwise justify, a breast examination by Respondent. Respondent did not inform L.B. of a medical necessity for any of the breast examinations. Respondent performed each of the breast examinations inappropriately. On each occasion Respondent and L.B. were alone in the examination room and L.B. had no examination gown. On January 20, 1995, Respondent reviewed L.B.'s condition with her in his office. He then took L.B. to an examining room and performed the first breast examination. Respondent instructed L.B. to remove her clothes from the waist up and to sit on the examination table. Respondent and L.B. were alone in the examination room. Respondent placed one hand on each of L.B.'s breasts. He squeezed each breast and nipple. He then cupped each breast and used both of his hands to rub each breast individually. Respondent did not provide an explanation of the medical necessity for the breast examination. He instructed L.B. to return to his office in one month. On February 22, 1995, L.B. returned to the Clinic in accordance with Respondent's medical advice. Respondent ushered L.B. directly to the examination room, locked the door, and performed the second breast examination. Respondent instructed L.B. to remove her clothes from the waist up and to sit on the examination table. He placed both hands on one of L.B.'s breasts and squeezed and massaged it. He squeezed and pulled the nipple. He then repeated the process on the other breast. He instructed L.B. to return to his office on March 22, 1995. On March 22, 30, and April 6, 1995, Respondent took L.B. directly to the examination room, locked the door, and performed the remaining three breast examinations. He performed each of the last three breast examinations using the same techniques as he used on January 20 and February 22, 1995. Respondent documented tests for L.B. in his medical records that he did not perform. Respondent's medical records for L.B. indicate that Respondent performed a Babinski test and an examination of: the head and neck, including the ear, nose, and throat; the abdomen; the spinal area; and all eleven cranial nerves. Respondent did not perform these tests. C.L. is a 31-year-old female. On December 23, 1994, C.L. presented to Respondent with numbness in her arm. Respondent took C.L. to his office and reviewed her condition. After a few minutes in the office, Respondent took C.L. to an examining room and performed a breast examination. The breast examination was not medically necessary. C.L. presented with numbness in her arm and sought a neurological examination for the condition. On December 22, 1994, C.L.'s gynecologist had given C.L. a complete physical that included a breast examination. Neither the objective findings available to Respondent prior to the breast examination nor Respondent's medical records were sufficient to establish a medical necessity for, or to otherwise justify, a breast examination. Respondent did not inform C.L. of the medical necessity for a breast examination. Respondent performed the breast examination inappropriately. Respondent instructed C.L. to remove all of her clothes from the waist up and to lie down on the examination table without an examination gown. Respondent and C.L. were alone in the examination room. C.L. objected to the examination and Respondent's instructions. C.L. explained that her gynecologist had performed a breast examination the previous day. Respondent insisted and C.L. reluctantly complied. Respondent cupped each breast with the palm of his hand. He pinched each nipple and rubbed his hands from her neck to the edge of her nipples. Respondent instructed C.L. to return to the Clinic for another office visit. C.L. never returned. Respondent documented tests for C.L. in his medical records that he did not perform. Respondent's medical records for C.L. indicate that Respondent examined C.L.'s eye with a swab or other instrument, examined her gait, and performed a Babinski test. Respondent did not perform these tests. L.Y. is a 37-year-old female. On May 25, 1995, L.Y. presented to Respondent with complaints of migraine headaches. Respondent took L.Y. to his office and reviewed her condition. After a few minutes in the office, Respondent took L.Y. to an examining room and performed a breast examination. The breast examination was not medically necessary. L.Y. presented with migraine headaches and sought a neurological examination for the condition. Neither the objective findings available to Respondent prior to the breast examination nor Respondent's medical records were sufficient to establish a medical necessity, or to otherwise justify, a breast examination. Respondent did not inform L.Y. of the medical necessity for a breast examination. Respondent performed the breast examination inappropriately. Respondent instructed L.Y. to remove all of her clothes from the waist up. L.Y. did so and put on an examination gown that she had requested. Respondent, L.Y., and L.Y.'s five year-old son were the only individuals in the examination room. Respondent rubbed each breast with the palm of his hand. The palm of each hand made contact with each nipple. The breast examination was unlike any breast examination L.Y. had previously received. D.S. is a 27-year-old female. On November 28, 1994, D.S. presented to Respondent with complaints of migraine headaches. D.S. was referred to Respondent by her gynecologist who had recently performed a yearly physical that included a breast examination. D.S. had a calcified cyst in her right breast. The cyst had been present for five years and was monitored routinely by her gynecologist. D.S. was scheduled for a routine mammogram shortly after her neurological examination. Respondent performed two breast examinations on D.S. on the same day. He performed one breast examination in the examination room and the second in his office. Neither of the breast examinations were medically necessary. D.S. had recently received a breast examination during from her gynecologist during her annual physical and was scheduled for a mammogram. She presented to Respondent with migraine headaches and sought a neurological examination. Neither the objective findings available to Respondent before the breast examinations nor Respondent's medical records were sufficient to establish a medical necessity for, or to otherwise justify, a breast examination by Respondent. Respondent did not inform D.S. of the medical necessity for a breast examination. Respondent performed both breast examinations inappropriately. After D.S. completed some forms in the reception area, Respondent took D.S. directly to an examination room and performed the first breast examination. Respondent instructed D.S. to remove her clothes from the waist up. He gave her an examination gown and left the room. D.S. removed all of her clothes from the waist up except her bra. She put on the examination gown. Respondent returned to the examination room and performed the breast examination. Respondent and D.S. were alone in the examination room. Respondent lifted D.S.'s bra. He felt her left breast and then her right breast. He then felt both breasts simultaneously. He then felt each breast separately again. During the examination, D.S. objected to the examination. She explained that her gynecologist had just performed a breast examination and that she was scheduled for a mammogram to monitor the cyst in her right breast. Respondent continued the examination. He continued to touch both breasts simultaneously with both hands. He repeatedly twisted both nipples simultaneously with both hands. Respondent completed the examination. He instructed D.S. to get dressed and to meet him in his office. In his office, Respondent discussed more tests and asked D.S. more questions about her condition. Respondent then rose from his chair, locked the door to his office, and told D.S. that he wanted to check the cyst in her right breast. Respondent instructed D.S. to unbutton her blouse. Respondent pulled up D.S.'s bra and asked her to stand and lean forward. Respondent squeezed and twisted both of D.S.'s nipples. He touched both breasts simultaneously. Respondent did not touch the area of the cyst. Respondent instructed D.S. to return to his office for follow up. D.S. never returned. Respondent documented tests for D.S. in his medical records that he did not perform. Respondent's medical records for D.S. indicate that Respondent performed a head and neck examination, an examination of 11 pairs of cranial nerves, a motor examination, and a sensory examination. Respondent did not perform these tests. L.T. is a 29-year-old female. On July 10, 1995, L.T. presented to Respondent with complaints of headaches and seizures. L.T. was referred to Respondent by her kidney specialist. L.T. also had a gynecologist who had performed a complete physical within one year of L.T.'s visit to Respondent. The complete physical included a breast examination. Respondent performed a breast examination on L.T. on July 10, 1995, and August 4, 1995. Neither of the breast examinations were medically necessary. L.T. recently had a breast examination from her gynecologist during her annual physical. She presented to Respondent with headaches and seizures. Neither the objective findings available to Respondent prior to the breast examinations nor Respondent's medical records were sufficient to establish a medical necessity for, or to otherwise justify, a breast examination by Respondent. Respondent did not inform L.T. of the medical necessity for a breast examination. Respondent performed both breast examinations inappropriately. On both occasions, Respondent and L.T. were alone in the examination room, and L.T. had no examination gown. On July 10, 1995, L.T. completed some forms in the reception area and Respondent took L.T. to his office where he asked her some routine questions. Respondent then took L.T. to an examination room and performed the first breast examination. Respondent instructed L.T. to sit on the examination table. He took her blood pressure and had her to lie on her back. Respondent listened to L.T.'s heart for a moment. He then pulled her shirt and bra over her breasts and squeezed both of her breasts simultaneously. Respondent told L.T. to place her hands behind her head. Respondent squeezed one breast and then the other. He then repeated the same process several times alternating between breasts. He then twisted and rolled L.T.'s nipples simultaneously with his fingers while the palms of hands grasped her breasts. Respondent moved his hands toward L.T.'s abdomen and applied pressure. He then moved his hands down to the hairline of the pubic region to examine a scar. Respondent moved his hands back up to L.T.'s breasts. He squeezed both breasts simultaneously while rolling both nipples with his fingers. During the examination, Respondent asked L.T. about her nationality. L.T. questioned the question. Respondent explained that L.T. had no tan lines. Respondent completed the examination. He instructed L.T. to get dressed and accompany him to his office. In his office, Respondent prescribed an MRI and electroencephalogram ("EEG"). The MRI was performed on July 18, 1995, and produced no positive findings. The EEG was performed in the Clinic by Respondent's nurse. The nurse scheduled L.T. to return to Respondent's office on August 4, 1995, to obtain the results of the EEG. The EEG produced no positive findings. On August 4, 1995, Respondent took L.T. to his office. Respondent stated that he found something abnormal but did not disclose the nature of the abnormality. He took L.T. to the examination room. In the examination room, Respondent had L.T. sit on the examination table and then lie down on the table with her hands behind her head. He pulled up her shirt and bra over her breasts. He then listened to her heart while he held her left breast in his right hand. He then touched both breasts with both hands while twisting her nipples with his fingers. Respondent instructed L.T. to return to his office for another EEG. L.T. returned on the next day. However, she did not stay for the test and never saw Respondent again. Respondent documented tests for L.T. in his medical records that he did not perform. The medical records for L.T. indicate that Respondent performed a cranial nerve test and deep tendon reflex test. Respondent did not perform either test. D.P. is a 39 year-old female. On April 8, 1994, D.P. presented to Respondent with complaints of migraine headaches. Respondent performed a breast examination on D.P. on July 10, 1995, in November 1994, and in the Spring of 1995. None of the breast examinations were medically necessary. D.P. presented to Respondent with migraine headaches and sought a neurological examination. Neither the objective findings available to Respondent prior to each breast examination nor Respondent's medical records were sufficient to establish a medical necessity for, or to otherwise justify, a breast examination by Respondent. Respondent did not inform D.P. of the medical necessity for a breast examination. Respondent performed all three breast examinations inappropriately. On each occasion, Respondent and D.P. were alone in the examination room, and D.P. had no examination gown. On April 8, 1994, D.P. completed some forms in the reception area, and Respondent took D.P. to his office where he asked her some routine questions. Respondent then took D.P. to an examination room and performed the first breast examination. Respondent instructed D.P. to remove her clothes from the waist up and to lie down on the examination table. He massaged both of her breasts with his hands. He then had her sit up on the table and again massaged both breasts. He lifted both breasts with his hands and continued to massage both breasts while he pinched her nipples with his fingers. During the examination, Respondent stated repeatedly that he had to be thorough. The repeated statements were disconcerting to D.P. The breast examination was like no other breast examination D.P. had received. It was lengthy and irregular. Respondent completed the examination. He instructed D.P. to get dressed and to meet him in his office. In his office, Respondent recommended that D.P. return on a monthly basis. Respondent advised that he could not refill her prescription unless he examined her monthly. D.P. returned to the Clinic over the next several months without incident. In November 1994, Respondent took D.P. to the examination room. He instructed D.P. to remove her clothes from the waist up. Respondent grasped both breasts and massaged them in a clinching manner. He pinched and twisted both nipples. In the Spring of 1995, Respondent took D.P. to an examination room and performed another examination that Respondent described to D.P as a breast examination. Respondent put both of his hands down D.P.'s bra and placed a stethoscope on one of her nipples. On her last visit, Respondent fingered D.P.'s bra strap. He told her it was very nice. The examination terminated shortly thereafter. Respondent performed all 16 breast examinations on the eight complaining witnesses in this proceeding for purposes of engaging them in sexual activity within the meaning of Section 458.329. In each case, Respondent exercised his influence within the patient-physician relationship for purposes prohibited by Section 458.329.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order and therein: find Respondent guilty of violating Sections 458.311(1)(j), (k), (m), (t), and (x); impose an administrative fine of $105,000; suspend Respondent's license for three years, including the period of suspension prior to a final order in this case; place Respondent on probation for three years; require Respondent to complete a reasonable amount of continuing professional education; and restrict Respondent's practice in accordance with the provisions of this Recommended Order. DONE AND ENTERED this 6th day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1997.
The Issue The issues concern the Petitioner's candidacy for licensure as a chiropractic practitioner in Florida. In particular, Petitioner stood examination for licensure in November, 1987, and was not successful in that attempt. Consequently, he has challenged the examination results in the portion of the examination related to physical diagnosis. His examination results have otherwise been sufficient to gain licensure. The Petitioner's claims in this challenge to the examination results relate to his assertions that the examination questions in dispute were not reasonable, alternatively that the answers given were sufficient and that contrary to Rule 21-11.009(2) and (3), Florida Administrative Code the examiners in the oral examination phase of his testing conferred in assigning a score to his performance instead of arriving at a score independently.
Findings Of Fact Petitioner, John G. Bahrs, is a graduate of Life Chiropractic College in Atlanta, Georgia, having graduated in June, 1987. He currently resides in Gainesville, Florida, at the address previously identified. In November, 1987, Petitioner took the Florida license examination to gain a license to practice chiropractic in Florida. The summarizing results of the various phases of that examination may be found in Respondent's exhibit no. 1 which is a copy of the examination results. It notes the requirement that the candidate receive a score of seventy-five (75) percent to pass the physical diagnosis portion of the examination. The score received by the Petitioner was sixty (60) percent. Having been unsuccessful in attempts to gain an adjustment of that score through an informal process, Petitioner requested a formal hearing in accordance with Section 120.57(1), Florida Statutes. That request was honored by the submission of this case to the Division of Administrative Hearings for assignment of a Hearing Officer and a subsequent hearing which was held on October 3, 1988. Under the general category of physical diagnosis there are various sub- elements to that examination process. In each of those areas, Petitioner received the minimum passing score of seventy-five (75) percent by the examiners, who are referred to as examiners numbers 23 and 25, with exception of scores related to laboratory diagnosis, nutrition and x-ray technique and diagnosis. The score assigned by examiner number 25 on laboratory diagnosis equates to fifty (SO) percent and the nutrition score likewise. Examiner number 23 assigned a laboratory diagnosis score of fifty (50) percent and nutrition, twenty-five (25) percent. He also gave the Petitioner a score of fifty (50) percent on x-ray technique and diagnosis. This analysis of the scores received in the sub-elements to the examination may be found in Respondent's exhibit no. 2, a copy of that compilation which has been admitted as evidence in this case. In addition to the break out of the scores, there is a comment section prepared by each of the graders; this, together with an analysis of the written recap of these phases of the examination process and the testimony of the Petitioner and the Respondent's chiropractic expert, focuses the dispute and allows a factual analysis to be made. The expert who testified for the Respondent Agency is Dr. Steven M. Ordet. He is a graduate of the National College of Chiropractic in Lombard, Illinois. He achieved that degree in 1974. At present, he is a consultant, lecturer and author. He practiced chiropractic in Ft. Lauderdale, Florida, between the years 1974 and 1985. He is a member of the American Chiropractic Association and Florida Chiropractic Association. He has been associated with the 1icensure of candidates in Florida for approximately seven (7) years as an examiner and consultant. In the subsection of the examination for which Petitioner received substandard scores on nutrition, examiner 23 noted that the Petitioner had received no training in that field. Examiner 25 made notations concerning the Petitioner's lack of understanding of the effects of use of iron and the implications of a vitamins B 6 deficiency. In his oral examination phase on nutrition, one of the questions posed related to a patient who was experiencing swelling in her hands in the morning and problems with her rings being too tight and burning in the soles of her feet. Petitioner was asked if there was some supplementation that might be provided to that patient that would assist the patient in her condition. In response, the Petitioner indicated that he had not had the type of training in his education that would lead to any specific clinical decision and that this, nutrition, was not one of his strong points. Petitioner made the suggestion by way of a query that this might sound like an edema problem to which the retort by an examiner was to the effect that you tell the examiners what you think should be done, meaning by supplementation. At hearing, the Petitioner indicated that his training in school in nutrition had related to what the food groups consist of, what vitamins are about, what minerals are and carbohydrates, proteins, again, basic information not sufficient to respond to some particular condition that a patient was experiencing. As identified by Dr. Ordet, the supplement for the problem described in the previous paragraph is pyridoxine, vitamin B 6, which is a natural diuretic that would help to reduce edema. The Petitioner did not respond sufficiently to the question under examination. Furthermore, his references provided at hearing on the topic of pyridoxine do not disturb the opinion of Dr. Ordet. Another question under the category of nutrition was to the effect that this patient, the hypothetical patient, a woman, takes vitamins and minerals regularly and is experiencing constipation and the Petitioner was asked what would cause this problem of those substances being utilized. Petitioner responded from a supplementation standpoint that he couldn't answer specifically but knows that generally you can overload a patient with supplements and can cause diarrhea or constipation. The proper answer as identified by Dr. Ordet would be that iron could cause the problem of constipation. Iron is a mineral. This is another instance in which the reference sources that the Petitioner presented did not dispel the conclusions reached by Dr. Ordet. Under the heading of x-ray technique and diagnosis, the examiners asked the Petitioner about the x-ray of a lower back involvement. He described an anterior to posterior examination in which a bucky was employed in a lateral cervical setting. He went on to describe that a non-bucky was used in x-ray of extremities measuring less than ten (10) centimeters. A further question concerned whether you would use more or less exposure going from 8 to 1 to 12 to 1 ratios and employing a bucky, to which the Petitioner indicated you would use less exposure. It is that portion of the questions which related to the ratio being increased and the belief expressed by the Petitioner that would cause less exposure that made examiner 23 grade the Petitioner down to a fifty (50) percent rating. Dr. Ordet, whose opinion is accepted on this matter, felt that the cervical view was a non-bucky projection, which contrary to the Petitioner's assertion is a matter which should be evident as a standard applied to all training in x-ray techniques. Therefore, Petitioner's claim that his schooling would allow the bucky to be employed in this form of projection is out of keeping with acceptable standards. Moreover, Dr. Ordet pointed out that the ratio increase would promote further exposure to the patient, not less exposure as answered by the Petitioner causing him to be downgraded by examiner 23. Petitioner's contention that the questions that preceded the matter of the increase in ratio were related to film exposure and not patient exposure misstates the context of those questions in this portion of the examination. It is clear that what was being referred to was the effect on the patient, not the effect on the film. The reference material which Petitioner has provided tends to confirm that the increase in ratio will increase the amount of exposure to the patient. Under the heading of laboratory diagnosis, the question was posed to the Petitioner that a female patient presents with tenderness above the pubic bone with difficulty urinating, burning sensation and pain, and he was asked to provide a statement of what laboratory tests would be ordered by the Petitioner and what would one look for through that analyses. The Petitioner responded that there is an indicated bladder infection and stated he would do an urinalysis. He was then asked what he might expect to see under that analysis and he said that he would expect to see cells, red blood cells and increased white blood cells and infection. He was asked what kind of white blood cells he would find in the urine and he said that he would see neutrophils in a microscopic examination. He again mentioned red blood cells and squamous epithelial cells in the bladder infection. In describing what he might see up in the area of the kidney, he said that he would see renal cells which are smaller and rounder compared to the epithelial cells in the area of the bladder which are larger and irregular in shape. As to a question about what he would expect to see in the way of a Ph in this case as presented compared to the normal condition, he said that he expected to see acidic values in that patient compared to the normal values which were in a range of 4.6 to 6.8 Ph. Then he stated between 4 and 6 Ph. According to Petitioner the Ph in the patient's condition would be a shift toward 4 and closer to 4 than the other end of the Ph scale. Examiner 25 had :noted that the Petitioner had insufficient knowledge of the situation in the test and Examiner 23 referenced the remarks about acidic Ph and the round kidney cells. By way of interpretation of the concerns which the examiners had In the area of laboratory diagnosis Dr. Ordet, whose opinion is accepted, noted that white cells in the urine any level show an abnormal condition. It is not the increase in those white cells that is significant. He also observed that the white cells would not be identified as neutrophils. The laboratory process, urinalysis, does not further describe the nature of the cells or than that they are white cells. Dr. Ordet identified that the nature of the cells in the kidney area were those associated with casts. Their relative size and shape are not the important factors. Consequently, the remarks by the Petitioner about size and shape of the cells in the bladder and the kidney are not significant. What is significant is to look for bonding between some foreign material and the cell forming casts in the kidney. One of the products in a cast might be calcium oxalate. Dr. Ordet noted that the Ph in the urine with the infection in this patient's case would be more alkaline, as opposed to acidic. Petitioner's reference sources concerning the urinary condition do not overturn the impressions which Dr. Ordet had of this condition in the hypothetical. Dr. Ordet has stated the opinion that the questions which were challenged were fair questions in examining a candidate for licensure as a chiropractic physician. His opinion is accepted and the opinion of the Petitioner that the questions were not fair is rejected. Petitioner, at hearing, suggested that the tape cassette of his examination which is exhibit 3 by the Respondent pointed out that contrary to Rule 21-11.009 (2) and (3), Florida Administrative Code, examiners 2 and 25 conferred in reaching conclusions about scores to be assigned to Petitioner's examination. A thorough review of that cassette does not reveal any arrangements of that sort. Their remarks indicate that the examiners were checking to see what sub-categories were involved in the examination as depicted in Respondent's exhibit number 2, and to verify that each examiner acknowledged what those sub-categories were.
The Issue The issues in these cases are whether Respondent violated Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes (2002), in DOAH Case No. 09-4678PL; Subsections 456.072(1)(l), 458.331(1)(m), and 458.331(1)(t), Florida Statutes (2003), in DOAH Case No. 09-4679PL; and Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes (2005), in DOAH Case No. 09-4680PL, and, if so, what discipline should be imposed.
Findings Of Fact At all times relating to the three Administrative Complaints at issue, Dr. Kachinas was a licensed medical doctor within the State of Florida, having been issued license number ME 65595. He is board-certified by the American Board of Obstetrics and Gynecology. DOAH CASE NO. 09-4678PL In 2002, Dr. Kachinas was working at several clinics that were owned by the same individual. He received payment from Sarasota Women’s Health Center and Tampa Women’s Health Center. His primary office was located in Sarasota, but he rotated through the offices located in Clearwater and Tampa. He was advised that he would be attending a patient in the Tampa office. One of the medications that he used in his method of sedating patients, Propofol, was not available in the Tampa office. He took a vial of the Propofol and took it to the Tampa office, holding the vial in his hand. While at the Tampa office, Dr. Kachinas drew the Propofol into a syringe. He did not have to use the Propofol for the patient. He placed the syringe filled with Propofol inside the sock that he was wearing. Dr. Kachinas transported the syringe back to the Tampa office. He used this method of transport so that the office manager in the Tampa office would not know that he was transporting the drug. When he got back to the Tampa office, he placed the filled syringe in a secure place. Propofol must be used within 24 hours after being drawn into a syringe. The next day it was decided that the drug would not be used on another patient, and Dr. Kachinas wasted the syringe filled with Propofol. At the clinics where Dr. Kachinas worked, there were no logs to keep track of the drugs, except for the drug Fentanyl. Dr. Kachinas acknowledged in a letter dated January 30, 2007, to the Department of Health that his method of transporting Propofol was “unorthodox.” In the same letter, Dr. Kachinas acknowledged that “a reasonable and prudent doctor would not generally transport medication in that manner, but foolishness seemed reasonable in that aberrant environment.” DOAH CASE NO. 09-4679PL On March 26, 2004, B.S. presented to Premier Institute for Women’s Health (Premier) for an elective termination of pregnancy. Dr. Kachinas was the physician who handled the procedure. Dr. Kachinas maintained records relating to B.S. at Premier. In 2004, Petitioner subpoenaed B.S.’s records from Dr. Kachinas’ office. Petitioner received a packet of documents, which purported to be B.S.’s medical records. In July 2006, Lori Jacobs, an employee of Premier, sent Petitioner another copy of the documents sent in 2004. Neither the records provided in 2004 nor the records provided in 2006 contain progress notes for B.S.’s treatment on March 26, 2004, and March 27, 2004. For the first time on November 5, 2009, Dr. Kachinas produced a three-page document, which he claimed was part of B.S.’s medical records that had been misplaced in B.S.’s insurance file. Two of the pages purported to be progress notes for March 26 and 27, 2004. The third page, which is also labeled as a progress note, is dated June 29, 2004, and appears to relate to insurance claims. The two pages relating to March 26 and 27 are on paper which is a different color from the progress note relating to insurance claims and the progress notes which were previously furnished in 2004 and 2006.1 Additionally, the progress notes for March 26 and 27, 2004, contain a break in each of the ruled lines on the sheets on both the right and left sides of the sheets. The insurance progress note and the progress notes furnished in 2004 and 2006 do not have such breaks in the ruled lines. Dr. Kachinas completed a Laminaria Insertion report documenting procedures done on March 26, 2004, and March 27, 2004. The March 26, 2004, report documents the insertion of Laminaria and administration of medications. The comment section of the report documents the removal of the Laminaria and administration of medications on March 27, 2004. The comment section continues to document the administration of medications and the taking of vital signs after the removal of the Laminaria and also the transfer of the patient to Doctors Hospital. The detail on the comment sections suggests that Dr. Kachinas was making his progress notes in the Laminaria Insertion report. The failure to produce the purported progress notes for March 26 and 27, 2004, until November 5, 2009; the difference in the color of the paper of the March 26 and 27, 2004, purported progress notes and the other progress notes in Dr. Kachinas’ records; the presence of breaks in the ruled lines on the March 26 and 27, 2004, purported progress reports, which do not appear on the other progress notes; and the detail of the comments on the Laminaria Insertion report support the conclusion that the progress notes submitted as Respondent’s Exhibit 1 were not done contemporaneously with the treatment given to B.S. on March 26 and 27, 2004, but were prepared for this proceeding. Thus, the progress notes for March 26 and 27, 2004, are not credited. Dr. Kachinas determined B.S.’s pregnancy to be at approximately 23½-to-24 weeks’ gestation, the last week of the second trimester. He confirmed by sonogram that the gestation period was 24 weeks. On March 26, 2004, Dr. Kachinas began the induction of labor ordering the insertion of ten Laminaria, which are osomotic cervical dilators which cause the cervix to open and allow easier emptying of the uterus. Dr. Kachinas’ records do not show that B.S.’s medical history was taken prior to the insertion of the Laminaria. However, Dr. Kachinas did take a medical history of B.S. at the time of her admission to Doctors Hospital, and the history is recorded in the medical records. Prior to the insertion of the Laminaria, Dr. Kachinas’ records do show that a limited physical examination of B.S. was done. The Laminaria Insertion report shows that B.S.’s baseline blood pressure, temperature, and pulse were taken and recorded. There was no expert testimony of what other physical examination should have been done. Dr. Kachinas injected the fetus with Digoxin, which is injected directly into the fetus to stop the fetal heartbeat, causing an Intrauterine Fetal Demise (IUFD). The injection of the Digoxin was not documented in B.S.’s medical records. B.S. was then released from Premier. On March 27, 2004, B.S. returned to Premier. Prior to removing the Laminaria, Dr. Kachinas did an ultrasound and determined that there was still fetal heart activity and fetal movements. Dr. Kachinas continued the labor induction procedure by removing the Laminaria and administering Cytotec and high dosages of Pitocin. When the Laminaria were removed, there was a rupture of membranes with a loss of essentially all the amniotic fluid. Sometime during the afternoon of March 27, 2004, Dr. Kachinas did another ultrasound and determined that there was no fetal heart activity. Based on the length of time from the Digoxin injection to the ultrasound showing no fetal heart activity, the loss of amniotic fluid, and the administering of medication to cause contractions, Dr. Kachinas determined that the Digoxin injection was not the cause of death. On March 27, 2004, at approximately 6:30 p.m., Dr. Kachinas transferred B.S. to Doctors Hospital and had her admitted to the hospital for failure to progress with the induction of labor procedure. While at the hospital, B.S. continued to experience pain. On March 28, 2004, Dr. Kachinas performed the following procedures on B.S.: mini-laparotomy, hysterotomy, removal of products of conception, and a modified Pomeroy bilateral tubal ligation. In his description of the procedures, he stated that the fetal demise was at least of 48 hours duration. However, Dr. Kachinas’ records do not reflect the time of the fetal demise. Jorge Gomez, M.D., Petitioner’s expert witness, credibly testified that a physician is required to document the time of the fetal demise. In the hospital records following B.S.’s surgery, Dr. Kachinas listed the post-operative diagnosis as a failure to induce labor, an intrauterine fetal demise, a thin umbilical cord, and asymmetric intrauterine growth retardation, a condition in which the fetus is smaller than expected for the number of weeks of pregnancy. An autopsy was performed on the fetus. A surgical pathology report was also issued. The pathology report showed mild infarcts on the maternal side. On the fetal death certificate, Dr. Kachinas listed the immediate causes for the IUFD as a possible cord incident and multiple placental infarctions. Dr. Kachinas did not document the elective termination or the Digoxin injection on the fetal death certificate. Dr. Gomez disagrees with the reasons for IUFD given on the death certificate. His credible reading of the pathology report does not indicate that the infarcts were severe enough to have contributed to the fetal demise. His credible reading of the pathology report does not indicate that there was any evidence of a cord incident. Dr. Gomez is of the opinion that the cause of death should have been listed as elective termination. Dr. Gomez’ opinion is credited. However, Dr. Gomez did not give an opinion on whether the fetal demise was caused by the injection of Digoxin. DOAH CASE NO. 09-4680PL On December 13, 2005, K.M. was seen by Walter J. Morales, M.D., at Florida Perinatal Associates, which specializes in internal fetal medicine. Dr. Morales performed an ultrasound on K.M., who was pregnant with twins as a result of in vitro fertilization. The ultrasound revealed that the twins were fraternal, meaning that each twin had a separate placenta and a separate sac. One of the twins, Twin A, had an anomaly called a cystic hygroma, which results from an obstruction, causing the lymphatic fluid, which normally drains into the juglar vein, to accumulate in the neck area. Approximately 50 percent of the fetuses which have this anomaly in the first trimester also have a chromosomal anomaly, such as Down syndrome. The decision was made to have K.M. return to Florida Perinatal Associates in three weeks for further evaluation. On January 3, 2006, Edgard Ramos-Santos, M.D., a partner of Dr. Morales, performed another ultrasound on K.M. Dr. Ramos-Santos found that Twin A, a male, had a cystic hydroma, a thickening of the nuchal fold2, and shortened femur and humerus. These findings are soft markers for abnormal chromosomes. The ultrasound also revealed a possible heart defect. At the time of the ultrasound, Twin A was cephalic bottom, meaning that Twin A was positioned lowest in the uterus. Dr. Ramos-Santos also performed an amniocentesis on Twin A on the same date as the ultrasound. The amniocentesis showed that Twin A had an abnormal chromosome pattern compatible with trisomy 21 or Down syndrome. Both ultrasounds showed that Twin B, a female, appeared to be normal. At the request of K.M., no amniocentesis was performed on Twin B on January 3, 2006. At the time of the ultrasound performed on January 3, 2006, the presentation of Twin B was cephalic right. The findings of the January 3, 2006, ultrasound were discussed with K.M. and her husband. On January 9, 2006, Dr. Ramos-Santos discussed the results of the amniocentesis with K.M.’s husband. It was decided that a selective feticide would be performed on Twin A. Selective feticide is a procedure in which a solution of potassium hydroxide is injected into the fetus’ heart to make the heart stop beating. K.M. was referred to Dr. Kachinas at Premier for the selective feticide. On January 10, 2006, Roberta Bruce, a nurse at Florida Perinatal Associates, sent to Premier by facsimile transmission the January 3, 2006, ultrasound report for K.M. and K.M.’s insurance information. The cover page for the facsimile transmission included a note from Ms. Bruce, which stated: “* FYI Fetus have different gender. The male is the affected one.” The standard of care as specified in Section 766.102, Florida Statutes (2005), requires a physician performing a selective feticide to correctly identify the affected fetus. Dr. Kachinas did not correctly identify Twin A prior to performing the selective feticide and performed the procedure on Twin B, the normal fetus. Dr. Kachinas performed an ultrasound on K.M., but failed to identify the correct position of Twin A in relation to K.M. The ultrasound done on January 3, 2006, by Dr. Ramos-Santos showed that Twin A was located at the bottom and Twin B was located to the right of K.M. In his progress notes, Dr. Kachinas placed Twin A on the right and Twin B on the left. Although it is possible for twins to shift positions, it is not probable that the twins shifted from left to right. Dr. Kachinas performed an ultrasound, but failed to identify that Twin A was the fetus with multiple anomalies. Although the standard of care required Dr. Kachinas to do a Level 2 ultrasound evaluation, a Level 1 ultrasound evaluation would have identified the cystic hygroma, the shortened long bones, and the sex of Twin A. Dr. Kachinas failed to perform an adequate ultrasound evaluation by failing to identify the anomalies and the gender of Twin A. Dr. Kachinas’ notes do not show whether Twin A or Twin B had anomalies. His notes did not identify the sex of each of the twins. His notes did not document the attempts that Dr. Kachinas made to identify the anomalies such as a recording of the length of the long bones or any examination made to identify the sex of each of the twins. On January 24, 2006, K.M. returned to Florida Perinatal Associates for another consultation. Dr. Morales performed another ultrasound, which revealed that Twin A, who had the anomalies, was still viable. The ultrasound revealed the continued presence of a cystic hygroma, the thickening of the nuchal fold, shortened extremities, and a congenital heart defect. The ultrasound also showed that the viable twin was male. The presentation of Twin A was shown by the ultrasound as cephalic bottom.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED as to DOAH Case No. 09-4678PL that a final order be entered finding that Dr. Kachinas violated Subsection 458.331(1)(t), Florida Statutes (2002), by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent physician as being acceptable under similar conditions and circumstances; finding that Dr. Kachinas did not violate Subsection 458.331(1)(m), Florida Statutes (2002); imposing an administrative fine of $2,500; and placing Dr. Kachinas on probation for one year. Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED as to DOAH Case No. 09-4679PL that a final order be entered finding that Dr. Kachinas did not violate Subsections 456.072(1)(l) and 458.331(1)(t), Florida Statutes (2003); finding that Dr. Kachinas violated Subsection 458.331(1)(m), Florida Statutes (2003); imposing an administrative fine of $1,000; and placing Dr. Kachinas on probation for one year. Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED as to DOAH Case No. 09-4680PL that a final order be entered finding that Dr. Kachinas violated Subsection 458.331(1)(t), Florida Statutes (2005), by committing gross medical malpractice; finding that Dr. Kachinas violated Subsection 458.331(1)(m), Florida Statutes (2005); imposing an administrative fine of $2,000 and placing him on probation for one year for the violation of Subsection 458.331(1)(m), Florida Statutes (2005); and revoking his license for the violation of Subsection 458.331(1)(t), Florida Statutes (2005). DONE AND ENTERED this 26th day of January, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 26th day of January, 2010.
The Issue The issue in these cases is whether disciplinary action should be taken against Respondent's license to practice medicine, No. ME 0046170, based upon the alleged violations of Section 458.331(1), Florida Statutes, set forth in the Administrative Complaint dated April 6, 1989, (the "First Administrative Complaint") which has been assigned DOAH Case No. 89-3723 and/or the Administrative Complaint dated August 16, 1990, (the "Second Administrative Complaint") which has been assigned DOAH Case No. 91-3864.
Findings Of Fact Based on the evidence adduced at the hearings on October 3, 1990, and March 10, 1992, and the entire record in this proceeding, the following findings of fact are made: Respondent is, and has been at all times material hereto, a licensed physician, having been issued license number ME 0046170 by the State of Florida. Respondent was initially licensed to practice medicine in the State of Florida in approximately April of 1985. No evidence was presented of any prior disciplinary action against Respondent. Respondent's last known address is 10611 N.E. 11th Avenue, Miami Shores, Florida 33138. Sometime around 1986, Respondent became affiliated with EMSA which is an emergency room provider. EMSA contracts with hospitals to staff emergency rooms. Thus, Respondent has been working as an emergency room physician since 1986. The evidence did not establish the extent of Respondent's obligations with EMSA since 1986. As discussed in more detail below, since 1986, Respondent has also been affiliated with at least two other entities, the Institute of Specialized Medicine and the Immunology Allergy Institute, Inc. Facts Regarding the First Administrative Complaint Respondent was employed as a salaried employee of the Institute of Specialized Medicine (the "Institute") for at least several months during the year 1987. Although the evidence regarding Respondent's affiliation with EMSA was not entirely clear, it appears that he retained his affiliation with that company during the time that he worked at the Institute. In June of 1987, Respondent was associated with the Institute. In June of 1987, J.P. was a 36 year old female who saw an advertisement in a newspaper for the Institute of Specialized Medicine. That advertisement suggested that weight loss could be accomplished through adjusting a person's metabolism. J.P. called the Institute and scheduled an appointment for June 30, 1987. J.P. had been seriously overweight all of her adult life and had previously tried almost every possible method of weight loss. Shortly before her visit to the Institute, J.P. had been able to lose 80 pounds by diet and exercise alone. On June 30, 1987, J.P. visited the Institute and was told that she needed to provide certain information to determine her eligibility for the Institute's program. J.P. was advised that the Institute charged a $925 fee for testing and consultation. That fee included her first two visits, after which she was to be charged $40 per visit. The Institute's staff told J.P. that she had to pay $285 and that the rest would be billed to her insurance company. J.P. paid $285 on this first visit. On her first visit, J.P. filled out various questionnaires regarding her health, background and other general information. She was given a "blood test," a spirometric test, an EKG, and she provided a urine sample. J.P. did not see a physician or dietician during this visit. On July 6, 1987, J.P. returned to the Institute and was seen for about ten minutes by Respondent, who listened to her heart and lungs. Her height, weight, blood pressure, and pulse rate were noted, but no other physical examination was performed and Respondent did not inquire regarding any of the matters disclosed in the questionnaire filled out by J.P. during her first visit. During the July 6, 1987 visit, Respondent informed J.P. of his interpretation of her test results. He told J.P. that her tests showed she had an irregular thyroid, that her metabolism was below normal range, and that her body retained fluid. In his records of J.P.'s July 6, 1987 visit, Respondent diagnosed J.P. as having "Euthyroid Sick Syndrome." Euthyroid Sick Syndrome is a condition which may arise in a patient seriously ill from another cause. In such a situation, there are abnormal findings in blood tests for thyroid function, but these findings do not indicate the true thyroid status which is normal. The evidence established that this was an incorrect diagnosis for J.P. based upon the test results and history provided. Respondent did not provide a cogent explanation for his written diagnosis of Euthyroid Sick Syndrome nor did he explain the verbal diagnosis given to J.P. Respondent's records do not include the results of the spirometric test or the EKG. In addition, the urinalysis was incomplete and, while the doctor's notes and billing records reflect a chest x-ray was taken, there is no evidence of such an x-ray in the records. The results of J.P.'s blood tests reflect all normal values with the exception of a slightly low "total iron." At the conclusion of the July 6, 1987 visit, Respondent prescribed Cytomel, 25 micrograms BID, and Maxzide for J.P. No directions were given regarding the administration of Maxzide. Cytomel is a prescription drug containing the active ingredient of the secretions of the thyroid gland. Cytomel is used to replace the hormone in cases of thyroid underactivity (hypothyroidism). There is no indication from the medical records that J.P. was suffering from Euthyroid Sick Syndrome, that her thyroid was malfunctioning, that her metabolism was below normal, or that she required any hormonal replacement therapy. Respondent now admits that the test results indicate J.P. was not hypothyroid. Respondent claims that if he had actually believed that the patient had been hypothyroid, the dosage prescribed would have been approximately three times greater. He contends that he prescribed Cytomel to increase oxygen consumption. To justify his prescription of Cytomel, Respondent cited to two medical texts which he claims were in wide circulation in 1987. He says those texts support his prescription of Thyroid hormone to encourage weight reduction. Only one of the two cited references even marginally supports Respondent's contention. In any event, the more persuasive evidence established that, before the advent of thyroid testing (approximately twenty years ago), Cytomel was occasionally used in an attempt to encourage weight loss in patients. However, the prescription of Cytomel for weight loss in 1987 was below the standard of care expected of a reasonably prudent physician under similar conditions and circumstances. Respondent also attempted to justify his prescription of Cytomel by claiming that J.P. had advised him that she had previously been taking a thyroid supplement. Respondent contends that some patients who stop taking thyroid supplements have a "rebound effect where their metabolic rate decreases." During her testimony, J.P. denied having ever been on thyroid medication. The questionnaires filled out by J.P. during her first visit to the Institute do not reflect that she had ever taken thyroid medication in the past. Furthermore, there is no notation in the medical records indicating that J.P. had been on thyroid medication in the past. Respondent's testimony that J.P. advised him that she had previously been on thyroid supplements but was no longer taking them is not credited. Maxzide is a prescription drug, a diuretic appropriate for patients with high blood pressure. Maxzide should not be used as initial therapy for fluid retention. Maxzide can have deleterious effects on a patient and should not be used in a weight reduction program unless other reasons indicating its use are present. Respondent's medical records do not justify the prescription of Maxzide to J.P. There is no indication that the patient had high blood pressure. Furthermore, J.P. denied having any previous problems with fluid retention and no such problems are noted on the medical history that she filled out. While Respondent noted "++edema" as part of his examination on July 6, 1987, the notation is not consistent with Respondent's other notes of his exam or J.P.'s testimony regarding her condition. Moreover, J.P.'s weight loss of only three pounds between July 6 and July 30, 1987, indicates that she had no edema on July 6, 1987. During the July 6, 1987 visit, J.P. saw the Dietitian at the Institute of Specialized Medicine for about 20 minutes. The only thing the Dietitian did was to give J.P. a 1,000 calorie per day diet which she was told to follow. On July 30, 1987, J.P. returned to the Institute to see Respondent because she thought she was suffering nausea from the effects of the medications Cytomel and Maxzide. Respondent did not document in his notes any treatment for her nausea. J.P.'s health insurance claim form, submitted under Respondent's signature, reflects a diagnosis of "Euthyroidism" and a corresponding insurance code number of 244.9. Euthyroidism means normal thyroid function. An insurance company will not pay for a diagnosis of a normal condition. Insurance code number 244.9 indicates a condition of hypothyroidism or thyroid insufficiency which Patient J.P. did not have. The health insurance claim form submitted under Respondent's signature reflects overlapping billings for a hemogram and WBC, includes charges for an x- ray and spirometry of which there is no record, and contains a coded diagnosis of Hypothyroidism which conflicts with the results of the tests performed on J.P. and also conflicts with the Respondent's recorded diagnosis of Euthyroid Sick Syndrome. The insurance claim form also includes charges for a complete history and physical. After J.P. filed a complaint with Petitioner, Respondent attempted to justify this billing by telling Petitioner's investigator that he gave J.P. a complete physical examination and a "full workup". However, the evidence established that Respondent did not perform a complete physical examination of J.P. Respondent did not examine J.P.'s breasts, recommend a mammogram, perform or refer J.P. for a gynecological examination, examine her throat, eyes, ears, or abdomen; address her familial history of diabetes, kidney disease, hypertension or obesity; question her about her listed allergies, past anemia, abnormal stomach x-rays, or changing moles; consider her serious depressions and emotional problems; interpret her EKG; or address the basic causes of her obesity. Respondent contends that he did not handle the billing for the Institute and did not himself submit any diagnosis to the insurance carrier. In addition, he claims that he has subsequently learned that the Institute forged his name on some insurance documents. These contentions do not provide a defense to the charges in this case. It is clear that the billings to the insurance company were submitted under Respondent's signature. There is no evidence that the health claim form in this case was forged. The insurance company directed an inquiry to Respondent regarding his diagnosis of J.P. and Respondent did little or nothing to clarify the situation. Furthermore, when J.P. complained to Respondent about the treatment and costs, there is no indication that Respondent took any steps to investigate the situation or correct the problems. In the original billings submitted to J.P.'s insurance company, the Institute sought payment of $925 for the treatment and tests rendered to J.P., even though the patient had already paid $285 of that agreed upon fee. Respondent's records reflect that ultimately the insurance company paid $670 for the services rendered to J.P. Respondent's treatment of J.P. failed to meet that level of care, skill and treatment expected of a reasonably prudent similar physician under similar conditions and circumstances because Respondent inappropriately prescribed Cytomel and Maxzide to J.P. when the need for those drugs was not indicated by the results of the tests performed and because his final diagnosis of "Euthyroid Sick Syndrome" was incorrect and unsupported by any tests or physical findings. Respondent failed to keep written medical records justifying his course of treatment of J.P. because the records (1) do not justify his diagnosis of Euthyroid Sick Syndrome, (2) do not justify his prescription of Cytomel for the patient who had no evidence or history of hypothyroidism, (3) do not justify his prescription of Maxzide for the patient who had no fluid retention and who presented with normal findings other than her obesity, (4) do not justify the extensive and inappropriate tests performed, (5) do not appropriately reflect J.P.'s EKG, do not report on results of her x-ray (if it was made) or spirometry, and (6) do not indicate that Respondent either advised or treated J.P. on July 30, 1987, when she complained that the medications were making her nauseous. By prescribing medications for J.P. which were medically unnecessary, by filing conflicting diagnoses, by charging for a complete physical examination when one was not performed, and by signing off on duplicative billing on J.P.'s health insurance claim form, Respondent has made deceptive, untrue and/or fraudulent representations in the practice of medicine. Facts Regarding the Second Administrative Complaint Respondent quit working at the Institute in approximately November of 1987. As noted in the Preliminary Statement above, Respondent was indicted in October of 1988 in connection with his affiliation with the Institute of Specialized Medicine. While the circumstances and facts surrounding that indictment were not fully explained at the hearing in this cause, it appears that Respondent was indicted with several other individuals for allegedly participating in a scheme to defraud insurance companies by billing for tests and treatments that were unnecessary or unrelated to patients' true conditions. The indictment was pending through out the time of the incidents alleged in the Second Administrative Complaint. Respondent ultimately entered into a pretrial diversion program as a result of those charges. Sometime in 1988, Respondent became associated with the Immunology Allergy Institute, Inc., (the "Allergy Clinic"). Respondent claims that he was seeking to establish a private family practice and associated with the Allergy Clinic as part of an office sharing arrangement. The Allergy Clinic was owned by Frank Seedarnee and his ex-wife. Respondent contends that in return for office space, he was to serve as the "medical director" for the office and would be responsible for examining and diagnosing all medical problems and prescribing necessary controlled substances. Respondent contends that he never discussed cases with Seedarnee and did not rely on any recommendations from him because Seedarnee was not a doctor. Respondent further contends that Seedarnee's only function was to recommend diet changes, vitamins, or other products to help patients keep their homes free from allergies. However, the evidence presented in this case established that the Allergy Clinic did not always function in this manner, at least with respect to the patient S.L. and her son A.L. In March of 1989, S.L. was experiencing sinus problems and had a cough. In addition her son, age 10 months at the time, had been coughing for a few months. S.L. had previously been diagnosed as having allergies. S.L. was told of the Allergy Clinic by a friend who recommended "Dr. Seedarnee" as a allergist. She assumed from this conversation that Dr. Seedarnee was a medical doctor. She made an appointment at the Allergy Clinic for herself and her son for March 30, 1989. On March 30, 1989, S.L. arrived at the Allergy Clinic with her son as scheduled. She did not see a sign at the Allergy Clinic or any indication as to who the doctors were. During her initial visit, S.L. filled out an extensive health questionnaire form on herself and her son, A.L. S.L. and her son were escorted by a woman who appeared to be a nurse into an office. The nurse stated "Dr. Seedarnee will see you now." This nurse also mentioned that Respondent was not in because he was out on an emergency. The office contained a large microscope and a TV-like screen. A man in a white coat introduced himself as Dr. Seedarnee. Seedarnee reviewed S.L.'s health history forms and discussed with her the reasons why she wished to see an allergist. He told S.L. that he had developed an immune booster to help immune systems, that he would be taking blood from S.L. and A.L. so he could diagnose their problems, and that he had invented a microscope capable of evaluating the blood that same day. Seedarnee did not physically examine S.L. or A.L. or inquire if anyone else in the office had examined them. Seedarnee ordered a nurse to draw blood from S.L. and A.L. The blood was drawn as requested without question or surprise by the nurse. S.L. also provided a urine sample at the nurse's request. After the samples were obtained, S.L. and A.L. returned to Seedarnee's office where an enlarged picture of two slides of blood were shown to S.L. on the TV-like screen. Seedarnee took photographs of the blood slides and gave them to S.L. Those photographs were introduced as Petitioner's Exhibits 2 and 3. Seedarnee told S.L. that the white cell in the middle of her blood slide was an "allergy cell" and the other figures in the picture were iron- deficient cells. He also told her that she had a "low immune system." Seedarnee told S.L. that A.L.'s blood slide had clumped-together cells because he had a sluggish immune system. Seedarnee indicated that his conclusions were based on the blood pictures. He recommended that S.L. receive one of his "immune boosters" once a month for the next few months and one yearly thereafter. He also indicated that A.L. needed an immune booster and should get one yearly thereafter. Seedarnee specifically used the words "diagnosis" and "treatment" and stated that he was going to run further tests in order to make his final diagnosis. Seedarnee's statements to S.L. on March 30 constituted a diagnosis and the practice of medicine. The evidence presented at the hearing established that the diagnosis made by Seedarnee on March 30 could not validly be made on the basis of the blood slides. Moreover, the pictures of S.L.'s and A.L.'s blood appear normal. The "allergy cell" was simply a white blood cell and the clumping of A.L.'s blood was due to an artifact. S.L. did not see Respondent or any other person she thought was a physician on the March 30 visit. At this point, she still believed Seedarnee to be a physician. S.L. was told that she was required to pay 20% of the "total cost" for the treatment and her insurance company was to pay the remaining 80%. At the conclusion of the March 30, 1989 visit, S.L. wrote a check to the Allergy Clinic for $371.20. On April 4, 1989, S.L. returned without her son to the Allergy Clinic. She did not bring her son because her husband was skeptical that a proper diagnosis could be made from the blood slide picture. On April 4, S.L. was taken directly to Seedarnee's office where Seedarnee reviewed with her the results from her blood test and urinalysis, told her that she was allergic to dust and had a sensitivity to milk and yeast, and suggested to her that she needed his immune booster and B-12 injections. Seedarnee also reviewed with S.L. her son's test results. He told S.L. that A.L. had no allergy problems, but, because A.L. had a low immune system, he recommended an immune booster. During the April 4 visit, S.L. asked Seedarnee where he went to school. He told her India and England and said he had a Ph.D. and worked under a physician. Until this time, S.L. believed him to be a medical doctor. The office staff at the Allergy Clinic all referred to Seedarnee as "doctor." The medical records from the Allergy Clinic for S.L. and A.L. are captioned as follows: Patient: L, S. Physician: Seedarnee/Kunen and Patient: L, A. Physician: Seedarnee/Kunen After S.L. met with Seedarnee in his office on April 4, she was given two injections by a nurse. The medical records indicate the injections were (1) B-12 and Folic Acid and (2) "URT." There was no doctor's order for these injections. At the hearing, neither Seedarnee nor Respondent could, or would, identify "URT." Seedarnee's interpretation of tests, diagnosis of allergies and development of a treatment plan for S.L. on April 4 by ordering two injections for her which were given before S.L. ever saw a physician constitute the practice of medicine. After the injections, the nurse took S.L. to an examining room. Shortly thereafter, Respondent entered and introduced himself as Dr. Kunen. He asked S.L. what Dr. Seedarnee had recommended. Thus, it is clear that Respondent was aware that the patient had already seen Seedarnee and that he knew Seedarnee had at least developed some recommendations for her treatment. It is not clear whether Respondent knew that S.L. had already been given two injections. S.L. told Respondent that Seedarnee had diagnosed her allergies and told her that she needed B-complex, an immune booster and yearly immune boosters thereafter. Respondent's only response was something to the effect of "good, fine." He said nothing more about her treatment. S.L. was with Respondent for only about five minutes. Respondent briefly examined her. He listened to her heart and lungs and checked the glands in her neck. She was fully clothed during the exam. Respondent did not review with S.L. any of the items on her health form questionnaire. He did not inquire as to any of the items noted on the form such as the antibiotics she was taking, her sensitivity to perfume, her symptoms of fatigue and/or lethargy, her complaints of pressure in her head, muscle weakness and heart palpitations, or her notations of mucus in her stool or problems with urinary frequency. Her blood pressure was never taken. She was not asked about her history of rheumatic fever. Respondent did not discuss with S.L. her allergy symptoms, what she was allergic to, her test results or why she needed an immune booster and B-complex. Respondent did not ask about A.L. and S.L. did not tell Respondent that she wanted A.L. to be tested. Respondent's medical records regarding S.L. contain one undated page of notes indicating that Respondent requested allergy testing for S.L. and that S.L. wanted her son to be tested. S.L. denies telling Respondent that she wanted her son tested. Indeed, the evidence established that S.L. and her son had already been tested the week before by Seedarnee and that S.L. told Respondent of Seedarnee's diagnosis and treatment plan. Respondent's medical records for A.L. contain the boy's birth date rather than a current date. The notation in Respondent's handwriting states "patient here for testing, will return next week." Respondent claims that he saw the son otherwise he would not have filled out this medical note on the child. S.L. claims that her son was not with her on the April 4, 1989 visit and, therefore, Respondent never saw him. S.L.'s testimony is credited. In sum, it is concluded that Respondent's notes in the medical records for S.L. and A.L. do not accurately reflect the events that occurred and were an apparent attempt to justify after the fact Seedarnee's actions and treatment. It is also concluded that Respondent never saw A.L. as a patient and that Respondent "recommended" a treatment plan for S.L. which had already been carried out. At the conclusion of her April 4 visit, S.L. wrote a check to the Allergy Clinic for $162 to cover the cost of her visit and the purchase of a product which Seedarnee had recommended and supposedly developed called Allergex. This product was supposed to be put in the laundry and used to wipe down tables, etc. to eliminate household dust. After her visit on April 4, S.L.'s suspicions were aroused. She inquired of authorities about the licensure of the Allergy Clinic (it had none) and of Respondent and Seedarnee (he had no license). Following the April 4 visit to the Allergy Clinic, S.L. went to see a Board certified allergist who questioned the treatment she received at the Institute. The allergist advised S.L. that she was allergic to items other than those Seedarnee had claimed. On May 23, 1989, S.L. wrote to Respondent elaborating on what Seedarnee had done, complaining that she was mislead to believe that Seedarnee was a physician and that Respondent had done nothing but rubber stamp Seedarnee's findings and treatment. Respondent was on notice at least from this time that Seedarnee was practicing medicine without a license. S.L. filed a complaint with the Department of Professional Regulation on June 9, 1989. During the ensuing investigation, Respondent told the Department's investigator on January 23, 1990 that Seedarnee only worked under his supervision and that Seedarnee never made recommendations to patients. These statements were made even though S.L. had told Respondent during her April 4th visit and in her letter of May 23, 1989 about Seedarnee's actions. At the hearing, Respondent disclaimed any knowledge of the "diagnosis" made by Seedarnee and/or the administration of injections to S.L. pursuant to Seedarnee's instructions. He suggests that if any such actions took place, they were contrary to the specific understandings that he had as to the procedures of the Allergy Clinic. Even if Respondent thought that he was supposed to make all diagnoses and develop all treatment plans at the Clinic, it is clear that these procedures were not followed with respect to S.L. and A.L. Moreover, it is clear that Respondent was aware of Seedarnee's activities by at least April 4, 1989. It is the physician's responsibility to formulate a treatment plan and treat a patient. Professional responsibility should be delegated only to individuals who have training and degrees to perform those tasks and non-medical personnel should not be allowed to assume functions that are to be performed by physicians. It is the physician's obligation, if he knows an unlicensed, untrained individual with whom he is working is following practices which constitute the practice of medicine, to stop that activity if possible and report it to the Department of Professional Regulation. Respondent was aware that Seedarnee was not a licensed medical doctor and was not qualified to make a diagnosis or to treat patients. Respondent never reported Seedarnee's unlicensed activity to any authority. Respondent's actions on April 4 with respect to S.L. constitute an acquiescence to Seedarnee's recommendations and treatment. Respondent contends that even if S.L. was administered the two injections discussed above, there is no evidence that those injections were controlled substances. Thus, Respondent argues there is no evidence that Seedarnee engaged in the unauthorized practice of medicine. This contention is rejected. As noted above, neither Seedarnee nor Respondent could explain what the immune booster or "URT" was. They both suggest that anything not prescribed should be considered part of a therapy program not medicine. However, the administration of an injection, particularly if not indicated by medical testing, always runs the risk of causing a reaction in a patient. The Respondent's interpretation of the practice of medicine is unduly narrow and is rejected. As discussed above, it is clear that the Clinic operations led at least one person, S.L., to believe that Seedarnee was a physician and it is clear that, with respect to at least this patient, Seedarnee interpreted test results, developed a diagnosis and directed a treatment plan. Moreover, it is clear that Respondent was made aware of these activities by at least April 4, 1989 and that he took no steps to halt or correct the situation and, indeed, that he acquiesced to it. The Allergy Clinic has been owned by Seedarnee for approximately 12 years. Seedarnee refers to the entity as a "research institute" rather than a laboratory or medical clinic. Seedarnee formulated the internal rules and procedures for the Allergy Clinic. Seedarnee's testimony on these procedures and other issues at the hearing was evasive, ambiguous and inconsistent. Seedarnee recognized that he needed a licensed physician to "approve prescribed substances and supervise techniques." However, it is clear that, at least during the time in question, the Allergy Clinic was operated in a manner that permitted him to diagnose and order vitamins and booster injections. Respondent was Medical Director of the Allergy Clinic from 1988 until at least mid-1990. Other than the matters raised in the Second Administrative Complaint and discussed above, no evidence was presented as to any other situations where Respondent acquiesced in the practice of medicine by Seedarnee. Respondent's testimony regarding his relationship with the Allergy Clinic was vague, conveniently selective and sometimes inconsistent. Respondent admits that he was hired to be Medical Director and was given office space. However, he claims that he had no obligation to Seedarnee, was not salaried (although he admits he was "loaned" money by Seedarnee, only some of which he paid back) and that he had no duties as Medical Director except "to be a good physician and see patients and to build a practice." He says he never had the need to discuss a case from a medical standpoint with Seedarnee or with other physicians there. He also says there were no staff meetings. Seedarnee's version of the relationship was quite different. Seedarnee testified that Respondent was paid a salary for his duties at the Allergy Clinic. At one point, Seedarnee claimed that the Medical Director made decisions for testing of patients on the basis of the patient's medical questionnaire. Because the allegations of the Second Administrative Complaint are limited to the treatment rendered to S.L. and her son, it is not necessary to fully explore and/or resolve the nature of Respondent's affiliation with the Allergy Clinic. That evidence established that, at least with respect to S.L. and her son, Respondent's role differed greatly from his description of the Clinic's operations. Respondent failed to report what was clearly the unauthorized practice of medicine by Seedarnee. Furthermore, by acquiescing in Seedarnee's diagnosis and treatment, Respondent unlawfully delegated professional responsibility to a person he knew to be unlicensed. Finally, Respondent's participation in the treatment of S.L. and her son constitutes the employment of a trick or scheme in the practice of medicine.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order finding Respondent guilty of violating Sections 458.331(1)(k), (m) and (t), Florida Statutes as alleged in the First Administrative Complaint and finding Respondent guilty of violating Sections 458.331(e), (k) and (w), Florida Statutes as alleged in the Second Administrative Complaint. As punishment therefore, Respondent should be (1) reprimanded, (2) fined $15,000, (3) suspended from the practice of medicine for five years, two years of which should be suspended if Respondent successfully completes Board approved continuing medical education courses, and (4) thereafter, Respondent should be placed on probation for a period of three years, the terms and conditions of which should be set by the Board of Medicine. It is recommended that one condition of probation should be a limitation on Respondent's establishment or participation in a private office practice. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of September, 1992. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1992. APPENDIX Case Numbers 89-3723 and 91-3864 Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. The Petitioner's Submittal with Respect to the October 3, 1990 Hearing Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1. Adopted in substance in Findings of Fact 1. 2. Adopted in substance in Findings of Fact 6. 3. Adopted in substance in Findings of Fact 4. 4. Adopted and 8. in substance in Findings of Fact 7 5. Adopted in substance in Findings of Fact 9. 6. Adopted 10. in substance in Findings of Fact 7. Adopted 14. in substance in Findings of Fact The first sentence is adopted in substance in Findings of Fact 15. The second sentence is subordinate to Findings of Fact 12. Subordinate to Findings of Fact 20. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 13. Adopted in substance in Findings of Fact 16. Adopted in substance in Findings of Fact 21. Adopted in substance in Findings of Fact 22. Adopted in substance in Findings of Fact 23. Rejected as unnecessary. Subordinate to Findings of Fact 26. Adopted in substance in Findings of Fact 26. Adopted in substance in Findings of Fact 29. Adopted in substance in Findings of Fact 30. Adopted in substance in Findings of Fact 24. Adopted in substance in Findings of Fact 24. Adopted in substance in Findings of Fact 24. Adopted in substance in Findings of Fact 25. Adopted in substance in Findings of Fact 31. The Petitioner's Supplemental Proposals regarding the First Administrative Complaint Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Subordinate to Findings of Fact 27. Adopted in substance in Findings of Fact 19. Adopted in substance in Findings of Fact 19. Adopted in substance in Findings of Fact 21. Subordinate to Findings of Fact 20 and 21. Adopted in substance in Findings of Fact 12. Rejected as unnecessary. Rejected as unnecessary. This subject matter is addressed in Findings of Fact 11. The Petitioner's Proposed Findings regarding the Second Administrative Complaint Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Rejected as unnecessary. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 36 and 38. Adopted in substance in Findings of Fact 37. Adopted in substance in Findings of Fact 38. Adopted in substance in Findings of Fact 39. Adopted in substance in Findings of Fact 40. Adopted in substance in Findings of Fact 41. Adopted in substance in Findings of Fact 42. Adopted in substance in Findings of Fact 43. Adopted in substance in Findings of Fact 44. Adopted in substance in Findings of Fact 45. Adopted in substance in Findings of Fact 46. Adopted in substance in Findings of Fact 47. Adopted in substance in Findings of Fact 48. Adopted in substance in Findings of Fact 49. Adopted in substance in Findings of Fact 50. Adopted in substance in Findings of Fact 52. Adopted in substance in Findings of Fact 53. Adopted in substance in Findings of Fact 53. Adopted in substance in Findings of Fact 53. Adopted in substance in Findings of Fact 56. Adopted in substance in Findings of Fact 54. Adopted in substance in Findings of Fact 55. Adopted in substance in Findings of Fact 57. Adopted in substance in Findings of Fact 58. Adopted in substance in Findings of Fact 58. Adopted in substance in Findings of Fact 58. Adopted in substance in Findings of Fact 59. Adopted in substance in Findings of Fact 59. Adopted in substance in Findings of Fact 59 and 61. Adopted in substance in Findings of Fact 62. Adopted in substance in Findings of Fact 63. Subordinate to Findings of Fact 64. Subordinate to Findings of Fact 66 and 67. Adopted in substance in Findings of Fact 68. Adopted in substance in Findings of Fact 69. Adopted in substance in Findings of Fact 69. Rejected as unnecessary. Adopted in substance in Findings of Fact 49. Adopted in substance in Findings of Fact 49. Adopted in substance in Findings of Fact 47. Adopted in substance in Findings of Fact 57. Adopted in substance in Findings of Fact 76. Subordinate to Findings of Fact 74. Adopted in substance in Findings of Fact 71. Adopted in substance in Findings of Fact 73. Adopted in substance in Findings of Fact 72. Adopted in substance in Findings of Fact 73. Adopted in substance in Findings of Fact 76. Subordinate to Findings of Fact 77. Subordinate to Findings of Fact 76 and 77. Subordinate to Findings of Fact 79 and 80. The Respondent's Proposed Findings of Fact regarding the Second Administrative Complaint Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Rejected as unnecessary. The first and the third sentences are adopted in substance in Findings of Fact 1. The second sentence is subordinate to Findings of Fact 3. Subordinate to Findings of Fact 33-35, 70, 75 and 79-80. Adopted in pertinent part in Findings of Fact 34. Rejected as unnecessary. This subject matter is addressed in Findings of Fact 38. 6.-10. Subordinate to Findings of Fact 35, 70, 75, 77, 79 and 80. Rejected as unnecessary and subordinate to Findings of Fact 40, 58 and 59. Rejected as unnecessary and subordinate to Findings of Fact 58 and 59. Subordinate to Findings of Fact 59. Adopted in substance in Findings of Fact 36. Adopted in substance in Findings of Fact 37. Adopted in pertinent part in Findings of Fact 37. Adopted in substance in Findings of Fact 39. Adopted in substance in Findings of Fact 40. The first sentence is adopted in substance in Findings of Fact 40. The second sentence is rejected as constituting argument. Adopted in substance in Findings of Fact 41 Adopted in substance in Findings of Fact 44. Adopted in substance in Findings of Fact 44. Adopted in substance in Findings of Fact 45. Adopted in substance in Findings of Fact 42. Adopted in substance in Findings of Fact 48. Adopted in substance in Findings of Fact 49. Adopted in substance in Findings of Fact 46 and 47. 28.-29. Rejected as unnecessary and subordinate to Findings of Fact 70. Adopted in substance in Findings of Fact 50. Rejected as unnecessary. Adopted in substance in Findings of Fact 52 and 53. Adopted in substance in Findings of Fact 54. The first two sentences are adopted in substance in Findings of Fact 55 and 57. The remainder is subordinate to Findings of Fact 70, 79 and 80. Adopted in substance in Findings of Fact 35, 70, 75, 79 and 80. 36.-37. Subordinate to Findings of Fact 70, 75, 77, 79 and 80. Subordinate to Findings of Fact 70. Rejected as unnecessary. Subordinate to Findings of Fact 76, 77 and 78. Subordinate to Findings of Fact 75. Subordinate to Findings of Fact 75, 79 and 80. Rejected as vague, ambiguous and unnecessary. This subject matter is addressed in Findings of Fact 56. Rejected as unnecessary and subordinate to Findings of Fact 64. Subordinate to Findings of Fact 70. Subordinate to Findings of Fact 70. Rejected as unnecessary. This subject matter is addressed in Findings of Fact 34 and 77. Subordinate to Findings of Fact 57 and 70. Rejected as unnecessary. The evidence established that Respondent continued working at the Allergy Clinic for a year or more after S.L. alerted him to Seedarnee's actions. Subordinate to Findings of Fact 76. Subordinate to Findings of Fact 76. The Respondent's Proposed Findings of Fact regarding the First Administrative Complaint Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Rejected as unnecessary. Adopted in substance in Findings of Fact 1. Addressed in the Preliminary Statement. Addressed in the Preliminary Statement. Addressed in the Preliminary Statement. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 4. Subordinate to Findings of Fact 6. Adopted in substance in Findings of Fact 7 and 8. Subordinate to Findings of Fact 9 and 10. Rejected as contrary to the weight of the evidence and subordinate to Findings of Fact 18 and 19. Adopted in substance in Findings of Fact 14. Rejected as contrary to the weight of the evidence and subordinate to Findings of Fact 18 and 19. Subordinate to Findings of Fact 12. Subordinate to Findings of Fact 12. Subordinate to Findings of Fact 12. Rejected as unnecessary and as constituting argument rather than a finding of fact. Subordinate to Findings of Fact 12. Subordinate to Findings of Fact 12. Adopted in substance in Findings of Fact 23. Adopted in substance in Findings of Fact 23. Subordinate to Findings of Fact 27 and 28. Rejected as unnecessary and subordinate to Findings of Fact 27. Subordinate to Findings of Fact 27. Subordinate to Findings of Fact 27. Rejected as constituting argument rather than a finding of fact. Addressed in the Preliminary Statement. Rejected as constituting argument. The issues raised by Respondent go to the weight of the evidence and not to its admissibility. Subordinate to Findings of Fact 12. Rejected as unnecessary. The issues raised by Respondent regarding Dr. Lindbergh's qualifications go to the weight to be given to his testimony rather than its admissibility. Rejected as constituting argument. See #31 above. Rejected as speculative, constituting argument rather than a finding of fact and unnecessary. Subordinate to Findings of Fact 12. Rejected as unnecessary. Rejected as unnecessary. Addressed in Findings of Fact 12. Rejected as unnecessary. Rejected as unnecessary. COPIES FURNISHED: Mary B. Radkins, Senior Attorney Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 Neil F. Garfield, Esquire Suite 333 3500 North State Road 7 Lauderdale Lakes, Florida 33319 Dorothy Faircloth, Executive Director Department of Professional Regulation/Board of Medicine 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether disciplinary action should be taken against the Respondent's license to practice nursing, based upon alleged violations of Sections 464.018(1)(h), 464.018(1)(I), 464.018(1)(j), and 455.227(1)(q), Florida Statutes, and if so, what discipline is proper.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of pharmacy pursuant to Section 20.42, Florida Statutes; Chapters 455 and 465, Florida Statutes. The Respondent, Fred Leon London, III, a 48-year-old male, and at all times material to this matter, holds active nursing license numbers PN 1089021 and RN 2804642. Respondent has been a registered nurse for approximately five years. In October of 1995, Respondent was employed as a registered nurse at Columbia Park Medical Center in Orlando, Florida, working the 3:00 p.m. to 11:00 p.m. shift. On October 4, 1995, the hospital, at which Respondent worked, had a discrepancy with one of its narcotic systems called the Phyxis machine. The discrepancy was reported by Respondent. A search was conducted to locate the missing drugs and the narcotics could not be located at that time. It was determined that Respondent and one other nurse were the last two nurses who operated the machine. Pursuant to hospital policies, the Respondent and the other nurse were asked to submit to a urine screen for the purpose of determining if they had ingested any drugs. The Respondent submitted to a urine screen as requested by his employer on October 5, 1995. The urine screen was performed by Smith Kline Beecham Laboratories. The test results performed on behalf of the hospital and the subsequent voluntary test taken by Respondent on October 13, 1995, cannot support a finding of fact, since the reports are uncorroborated hearsay. Following the in-house investigation, the Respondent was terminated from his employment and a report was filed with the Board of Nursing. The missing narcotics were subsequently located the following day. They had been misplaced, but not tampered with. They were returned to inventory. Respondent was referred to the Intervention Project for Nurses (IPN). Respondent participated in a psychosocial assessment on October 12, 1995. Respondent has no prior criminal or disciplinary history and denies that he used marijuana or any other controlled substance on October 4 or 5, 1995.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Nursing find the Respondent not guilty as to Counts I, II, III, and IV of the Administrative Complaint, dated August 4, 1997, and that the Administrative Complaint be dismissed. DONE AND ENTERED this 8th day of April, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1998. COPIES FURNISHED: Craig A. McCarthy, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Dr. Xavier C. Pinellas Qualified Representative 211 Broadway, Suite 115 Kissimmee, Florida 34741 Pete Peterson, General Counsel Department of Health 1317 Winewood Boulevard Building 6, Room 102-E Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700 Marilyn Bloss, Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207
Findings Of Fact At all times relevant hereto, respondent, Mark C. Alsaker, was a registered nurse having been issued license number 1174892 by petitioner, Department of Professional Regulation, Board of Nursing (Board or DPR). He has been licensed since September 8, 1980. Respondent presently resides at 2972 Southwest 17th Street, Fort Lauderdale, Florida. On November 8, 1984 the Board entered an Order of Reinstatement which reinstated respondent's license and placed it on probation for three years, or to and including November 7, 1987. 1/ Among the terms and conditions contained therein was the prohibition against respondent consuming, injecting or otherwise self-medicating with any legend drug or controlled substance unless prescribed by a duly licensed practitioner. To enforce this condition of probation, the Board required that periodically respondent submit himself to a random urine test. On May 20, 1987 respondent visited DPR's Fort Lauderdale office to give a urine specimen. This was given in the presence of a DPR investigator. The specimen was capped in a container, sealed and placed in a bag. Respondent then initialed the bag and signed the chain of custody form. The bag was thereafter placed in a locked box for pickup by the testing laboratory, SmithKline BioScience Laboratories, Ltd. (SmithKline). SmithKline is an organization that tests urine samples for the presence or absence of various substances. The laboratory performed a qualitative drug profile and an Emit 10 profile on Alsaker's specimen. The former test determines the presence of certain substances in the urine but does not measure the quantity. The latter test is much the same as qualitative testing but is done by automation and is more precise. The testing results reflected a presumptive positive for cannabinoids (marijuana or opiates), a controlled substance. This was confirmed by a gas chromatography mass specimen (GGMS) test, a procedure employing an instrument to confirm the presence or absence of a substance. The GGMS test is considered to be the state of the art in terms of reliability. On September 22, 1987, and under the same conditions as were present on May 20, respondent gave another urine specimen in the presence of a DPR investigator. Using the same testing procedures, SmithKline confirmed the presence of cannabinoids (marijuana or opiates) in respondent's urine. Respondent was advised of both test results. However, he did not ask for a retest although he stated he was not aware of his right to do so. At hearing, respondent contended the tests were not 100 percent accurate and that some error or mix-up must have occurred when his samples were given to the laboratory. He also stated it would be foolish for him to use drugs just before giving a urine sample knowing that the results could violate the terms of probation. However, the contentions as to the unreliability of the testing procedures and the probability of a mix-up occurring were not supported by any independent proof and are contrary to the more persuasive evidence. Respondent is presently employed at a Broward County rehabilitation hospital where he uses his license as a registered nurse. There is no evidence of any complaint by his employer or that he has not adequately performed his job. Other than the two cited instances, there were no other positive test results during the three year probation period. There was no evidence that, by virtue of his using drugs on these two occasions, Alsaker was unable to practice nursing with reasonable skill and safety. Finally, the record is silent as to whether his use of drugs equated to unprofessional conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection 464.018(1)(j), Florida Statutes (1987), and that all other charges be dismissed. It is further recommended that respondent's license be placed on two years' probation, that he regularly attend Alcoholics Anonymous or Narcotics Anonymous meetings during that two year period, and that he submit to random urine tests under such terms and conditions as the Board deems necessary. DONE AND ORDERED this 13th day of July, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1988.
The Issue The issues in this case are whether Respondent committed the allegations contained in the Amended Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner Department of Health has regulatory jurisdiction over licensed physicians such as Respondent. In particular, Petitioner is authorized to file and prosecute an administrative complaint, as it has done in this instance, when a panel of the Board of Medicine has found probable cause exists to suspect that the physician has committed one or more disciplinable offenses. At all times relevant to this proceeding, Respondent was a physician licensed in the State of Florida, having been issued license number ME 36889, and his medical office was located at 7200 West Commercial Boulevard, Suite 210, Fort Lauderdale, Florida. As mentioned previously, Petitioner alleges in this cause that Respondent's treatment of patient L.V. fell below the minimum standard of care in that: thyroid medication was prescribed in the absence of medical necessity; or, even assuming that some amount of thyroid medication was indicated, L.V. was prescribed excessive doses of the drug. To facilitate the reader's understanding of these issues, the factual recitation will be preceded by a brief description of the thyroid gland and anterior pituitary, as well as the hormones secreted by these glands. Relevant Glands and Hormones The thyroid gland (or simply, "the thyroid") is one of the human body's primary endocrine glands. The thyroid secretes several thyroid hormones——Triiodothyronine ("T3"), the active form of thyroid hormone; and Thyroxine ("T4"), which is inactive——that control and regulate the body's metabolism, development, growth, and temperature. The production of T3 and T4 is regulated by thyroid- stimulating hormone ("TSH"), which is produced by the anterior pituitary gland. Generally speaking, when thyroid hormone levels are low, the production of TSH increases; conversely, TSH production decreases when thyroid hormones concentrations are high. Accordingly, a high TSH level is suggestive of an underactive thyroid or hypothyroidism, while a depressed level of TSH indicates an overactive thyroid or hyperthyroidism. Treatment of L.V. On October 7, 2008, patient L.V., a 57-year-old female, presented to Respondent's medical office to address, in the patient's words, "hormonal problems." As it was her first visit to Respondent's office, L.V. was asked to complete a new patient intake form that solicited, among other information, her current symptoms and previous medical conditions. In the form, L.V. disclosed a variety of complaints: dizziness, fatigue, insomnia, forgetfulness, a rapid heartbeat,2/ and post-menopausal symptoms. After completing the paperwork referenced above, L.V. was seen by Shirley Jimenez, Respondent's physician assistant, who conducted a physical examination3/ and gathered a complete history. During her visit with Ms. Jimenez, L.V. revealed, as an additional complaint, that she occasionally experienced intolerance to cold. At the conclusion of the October 7, 2008, appointment, Ms. Jimenez recommended, with Respondent's approval, that blood work be conducted——to determine, among other things, the levels of T3, T4, and TSH——and that L.V. return for a follow-up appointment in several weeks. On or about October 21, 2008, the results of L.V.'s blood work were forwarded to Respondent for his review. With respect to L.V.'s levels of T3, T4, and TSH, the laboratory report indicated the following values and reference ranges (i.e., the levels deemed "normal" by the laboratory): Hormone Result Reference Ranges T3, Free: 264 pg/dL 230-420 pg/dL T4, Free: 1.1 ng/dL 0.8-1.8 ng/dL TSH: 2.94 mIU/L 0.40-4.50 mIU/L L.V.'s next office appointment was on October 23, 2008, during which she met Respondent for the first time. On that date, Respondent determined, based upon a review of L.V.'s complaints and symptoms (fatigue, dizziness, cold intolerance, forgetfulness, and low basal body temperature) and an examination of the laboratory results——as enumerated above, a T3 level at the low end of the reference range and a TSH value greater than 2.50 mIU/L, considered by Respondent to be high in light of L.V.'s symptoms——that the patient suffered from thyroid dysfunction. Notably, and contrary to Petitioner's allegations, Respondent did not diagnose L.V. with hypothyroidism.4/ Believing that L.V.'s symptoms could be alleviated by increasing her T3 level into the upper half of the typical range (i.e., 350 pg/dL), Respondent prescribed a low dosage of desiccated thyroid——a medication prepared from pig thyroids, which contains both T3 and T4——in the amount of .25 grain, which L.V. was instructed to take twice daily.5/ By all accounts, L.V. began taking the desiccated thyroid medication on or about October 23, 2008, and continued to do so until April 19, 2009. L.V. appeared for her third appointment on November 12, 2008, during which the patient made no indication of adverse side effects from the desiccated thyroid. At the conclusion of the office visit, Respondent refilled L.V.'s prescription at the same dosage. One month later, on December 12, 2008, a second blood sample was collected from L.V. The results, which were reported to Respondent on December 22, 2008,6/ indicated little to no change in L.V.'s levels of T3, T4, and TSH: Hormone Result Reference Ranges T3, Free: 255 pg/dL 230-420 pg/dL T4, Free: 1.0 ng/dL 0.8-1.8 ng/dL TSH: 3.00 mIU/L 0.40-4.50 mIU/L During her next office appointment, which occurred on December 29, 2008, L.V. once again reported no adverse side effects from the medication. L.V. did, however, state that she continued to suffer from vertigo, fatigue, and forgetfulness. In light of these persistent symptoms, as well as the laboratory results that revealed no meaningful change in the levels of T3, T4, and TSH (indeed, the T3 value had decreased slightly), Respondent increased the dosage of desiccated thyroid to .5 grain twice daily. L.V. appeared for her fifth office visit on January 13, 2009, at which time she reported, once again, that she continued to experience vertigo and fatigue. Respondent concluded, reasonably, that L.V. should be continued on desiccated thyroid at the current dosage due to the relatively short amount of time that had elapsed (15 days) since the medication's increase to .5 grain twice daily; in other words, Respondent believed that the additional time was needed for the higher dosage to produce results. On February 10, 2009, L.V. provided a third blood sample, the results of which were reported to Respondent 14 days later. In contrast to the previous sample, which demonstrated little or no change in L.V.'s hormone levels, the February 10 laboratory report showed that the medication was beginning to achieve the desired effect——i.e., increases in the T3 and T4 hormones, as well as a corresponding decrease in TSH: Hormone Result Previous Result Reference Ranges T3, Free: 293 pg/dL 255 pg/dL 230-420 pg/dL T4, Free: 1.1 ng/dL 1.0 ng/dL 0.8-1.8 ng/dL TSH: 1.78 mIU/L 3.00 mIU/L 0.40-4.50 mIU/L L.V.'s final office appointment, at least as an active patient of Respondent's, was on February 24, 2009. During the visit, L.V. reported some improvement with her vertigo and fatigue, and, as was the case during each of the prior appointments, L.V. neither disclosed, nor did Respondent or his staff detect, any adverse side effects from the thyroid medication. In light of L.V.'s continued symptoms; her T3 level, which was still significantly below Respondent's target of 350 pg/dL; and demonstrated ability to tolerate the medication, Respondent determined that an increase of the desiccated thyroid to .5 grain three times daily would prove helpful. L.V.'s Hospitalization Nearly two months later, on April 19, 2009, L.V. presented to the emergency room at Coral Springs Medical Center ("Coral Springs") and reported that she was experiencing "chest pains"; she also informed the medical staff that she had been suffering, for approximately three weeks, from persistent diarrhea——a condition that L.V. had experienced on multiple occasions over the years, long before she began taking the desiccated thyroid medication prescribed by Respondent. Based upon the nature of the complaints, L.V. was promptly admitted to the hospital for evaluation and treatment. L.V. remained hospitalized at Coral Springs for the next several days, during which time no evidence of a cardiac event was discovered. Indeed, the treating cardiologist summed up L.V.'s symptoms as follows: "Non-cardiac chest pain. The less said about this the better. No further investigation needed." With respect to L.V.'s diarrhea, the treating endocrinologist, Dr. Vanessa Rodriguez, attributed the symptom to iatrogenic hyperthyroidism (i.e., physician-induced overactive thyroid). Dr. Rodriguez reached this conclusion based upon L.V.'s low TSH level (.02 and .03 mIU/L on April 19 and 21, respectively), notwithstanding L.V.'s normal thyroid values7/ and the absence of symptoms frequently associated with hyperthyroidism, such as rapid heartbeat,8/ tremors, and hyperreflexia. Based upon her diagnosis——which, as discussed later in this Recommended Order, is rebutted by the credible testimony of Respondent's expert——Dr. Rodriguez instructed L.V. to discontinue the desiccated thyroid medication. Expert Testimony During the final hearing in this cause, Petitioner presented the testimony of Dr. Elton Shapiro, a board-certified endocrinologist, in support of its contention that Respondent's treatment of L.V. departed from the standard of care. During his direct examination, Dr. Shapiro opined, first, that Respondent violated the standard of care by initiating treatment with desiccated thyroid medication where the patient's TSH did not fall outside the testing laboratory's reference range. In Dr. Shapiro's view, once it is determined that a patient's TSH level is within the upper limit of the reference range established by the laboratory (typically 4.5 mIU/L),9/ it is improper for a physician to begin thyroid supplementation——irrespective of the patient's symptoms,10/ thyroid hormone levels (i.e., T3 and T4), or the proximity of the TSH value to the upper end of the range. Thus, per Dr. Shapiro's conception of the standard of care, a physician would commit misconduct by prescribing, ab initio, thyroid medication to a patient with a TSH of 4.4 mIU/L (a value barely within the upper limit), even if the levels of T3 and T4 are low and the patient exhibits symptoms consistent with thyroid dysfunction. Dr. Shapiro further opined that once thyroid medication is prescribed——which, per the witness, may only occur if the TSH is greater than 4.5 mIU/L——a physician should endeavor to decrease the patient's TSH to a range of .3-3.0 mIU/L, with an optimum level of 2.0 mIU/L. Thus, Dr. Shapiro accepts as "normal," for initial diagnostic purposes, a TSH level that does not exceed the upper reference range of 4.5 mIU/L; upon the initiation of therapy, however, a TSH level previously regarded during the diagnostic phase as acceptable (e.g., 4.0 mIU/L) is less than ideal and worthy of downward movement. In other words, what is considered "normal" or optimal depends, in Dr. Shapiro's view, on whether the patient has already been placed on thyroid medication or has yet to begin such therapy.11/ With respect to Respondent's treatment of L.V. during the period of November 2008 through February 2009 (i.e., after the patient began taking thyroid medication), Dr. Shapiro testified that Respondent deviated from the standard of care by: ordering a refill of the thyroid medication in November 2008; increasing the dosage of thyroid medication in December 2008; continuing L.V. on the medication in January 2009; and increasing the dosage a second time in February 2009. As the sole basis for his opinion that continued treatment was not warranted, Dr. Shapiro noted that L.V.'s TSH levels in December 2008 and February 2009 (3.00 mIU/L and 1.78 mIU/L, respectively) did not exceed the upper end of the laboratory reference range (4.5 mIU/L) and were therefore "normal." This testimony appears, however, to be inconsistent with the witness' own standard, as described in the previous paragraph of this Recommend Order: i.e., once thyroid supplementation has begun, the laboratory reference ranges are supplanted by a permissible range of .3-3.0 mIU/L and a target of 2.0 mIU/L.12/ Finally, Dr. Shapiro opined, based solely upon L.V.'s extremely low TSH levels upon her admission to the hospital, that Respondent's treatment resulted in the patient's development of iatrogenic hyperthyroidism. On cross-examination, Dr. Shapiro was asked, on a number of occasions, to enumerate the sources upon which he relied in his articulation of the standard of care. In response, Dr. Shapiro repeatedly testified that his opinions were derived from guidelines promulgated by the American College of Endocrinology ("ACE guidelines"),13/ which contemplate that thyroid supplementation is properly initiated only where a patient's TSH level is greater than the testing laboratory's reference range14/; once treatment is initiated, the guidelines call for a TSH range of .3-3.0 mIU/L and a target of 2.0 mIU/L.15/ Critically, however, Dr. Shapiro never testified that the ACE guidelines were intended by its drafters to establish a standard of care, nor, more importantly, did he testify that Florida physicians adhere to these guidelines with such uniformity that they mark the standard of a minimally competent practitioner. Instead, Dr. Shapiro's testimony simply reflects that he regards the ACE guidelines as absolute and binding, which, as discussed later in this Recommended Order, is insufficient to establish the standard of care by clear and convincing evidence. Even assuming that Dr. Shapiro' exclusive reliance on the ACE guidelines is a deficiency that can be brushed aside, the undersigned would nevertheless reject his opinions in favor of those articulated by Respondent's expert witness, Dr. Edwin Lee.16/ Dr. Lee, a board-certified endocrinologist, credibly opined, first, that Respondent's initiation of treatment was consistent with the standard of care in light of L.V.'s symptoms, initial TSH value (which exceeded 2.5 mIU/L), as well as L.V.'s level of T3, Free, which was measured at the low end of the reference range. (Dr. Lee explained that 95% of normal patients have a TSH level of 2.5 mIU/L or less, and that a value in excess of 2.5 mIU/L is an indication of mild underactive thyroid.) Further, Dr. Lee testified, again credibly, that Respondent's continued treatment of L.V. with increasing levels17/ of desiccated thyroid supplementation comported with the standard of care where the patient, who had demonstrated no adverse reactions to the medication, continued to present with symptoms and sub-optimal laboratory values (i.e., levels of T3 below an ideal range of 300-350 pg/dL, and TSH values outside a target range of .3-1.0 mIU/L). Finally, Dr. Lee credibly opined that that Respondent's treatment of L.V. with desiccated thyroid medication did not result in iatrogenic hyperthyroidism. In support of this opinion, Dr. Lee emphasized, among other factors, that L.V.'s T3 and T4 levels, as well as heart rate, were entirely normal upon the patient's admission to the hospital.18/ Dr. Lee further observed, correctly in the undersigned's view, that L.V.'s persistent diarrhea——a condition from which the patient had suffered on multiple occasions over the years, long before she began treatment with Respondent——was more likely caused by medications (Flagyl and Levaquin) prescribed by another physician.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Medicine dismissing Counts I and II of the Amended Administrative Complaint. DONE AND ENTERED this 7th day of January, 2013, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 7th day of January, 2013.
