The Issue The issue is whether Respondent failed to practice medicine with the required standard of care, in violation of Section 458.331(1)(t), Florida Statutes, and failed to keep required written medical records, in violation of Section 458.331(1)(m), Florida Statutes. If so, an additional issue is what penalty should be imposed.
Findings Of Fact At all material times, Respondent has been a licensed physician in Florida, having been issued license number ME 0022608. Respondent is board-certified in ophthalmology. He was the principal investigator in the Excimer Laser Research Study. He is a fellow with the American College of Surgeons. He has published extensively in prominent medical and ophthalmologic journals. While still receiving medical training, Respondent gained experience in treating the ophthalmologic conditions of patients who suffer from Down Syndrome. While in practice, Respondent has continued to gain considerable experience in treating the ophthalmologic conditions of patients with Down Syndrome. Respondent has never previously been disciplined. U. V. was born on January 6, 1973. He suffered from Down Syndrome. As a young child, U. V. was diagnosed with inoperable congestive heart failure. Suffering from damage to two chambers of his heart and irreversible lung damage, U. V. had been in “terminal” condition since about the age of seven. Despite his serious medical problems, which are common to Down Syndrome patients, U. V. was a happy young man, who developed and matured as a teenager. He communicated his feelings and interacted with others, especially with his family. His mother adopted him when he was about five years old; previously, she had cared for him after his biological family had abandoned him. In March 1992, U. V. became quite ill. His physician discussed with U. V.’s mother the possibility of a Do Not Resuscitate order, but no order was ever given or entered into his medical records. U. V. rallied from his illness. His cardiologist found, after an office visit on October 13, 1992, that U. V. had made “tremendous progress” and was “doing quite well at this point in time.” This was the last time that U. V. visited his personal physician prior to the cataract surgery nearly a year later. In April of 1993, U. V. received home health care through the Hospices of Palm Beach. During this time, the hospice nurse who visited U. V. at home noted that he was sensitive about his Down Syndrome and social isolation. On July 14, 1993, the hospice nurse noted that she found U. V. to be “alert, ambulatory, cheerful.” U. V.’s mother told the nurse that U. V. wanted an eye surgeon to treat a cataract that had developed in his left eye, and the family would be willing to pay for the operation in installments, if health coverage would not pay for the surgery. Ten days later, during another home visit by the hospice nurse, U. V.’s mother again stated her concern about his cataract. The nurse told her to take U. V. to his primary care physician for a referral. U. V.’s family took U. V. to his family physician, who sent him to an optometrist. The optometrist determined that U. V. had a cataract in his left eye and was starting to develop one in his right eye too. The optometrist told them that surgery could correct the condition and referred U. V. to Respondent. About a month later, in late August, U. V.’s mother informed the hospice nurse that they had an appointment with an eye surgeon and hoped that he would remove the cataract from U. V.’s left eye. At this time, U. V. was still leading an active life, largely due to the support and assistance of his loving family. He was happy and enjoyed dancing at weddings and parties and watching television. The family thought that surgery would help him see better with his left eye. Respondent first examined U. V. on August 31, 1993. He found a hypermature cataract in U. V.’s left eye. U. V.’s eye was totally opacified by the cataract to such an extent that he could see only hand motion. Respondent was immediately concerned with the possibility of phacolytic glaucoma. This is a condition in which the cataract liquifies and may leak through the lens capsule, resulting in an immunological reaction. Phacolytic glaucoma is extremely painful. It is impossible to predict the precise onset of phacolytic glaucoma, but Respondent reasonably determined that the condition could develop in as little time as hours or days, although it was possibly months away. Respondent was also concerned with U. V.’s right eye. Respondent found a cataract in the right eye in the lens where all the light rays pass into the eye. This type of cataract advances rapidly, so much so that it might overtake in seriousness the older cataract in U. V.’s left eye. Respondent performed a comprehensive examination of both eyes. He discussed cataract surgery with U. V.’s mother. Respondent agreed to perform the surgery for the Medicaid payment. He carefully explained the condition of U. V.’s left eye and the risks and benefits of surgery and general anesthesia. To assist in communicating with U. V.’s Spanish-speaking mother, Respondent had someone in the office translate for the mother. After hearing the explanation, U. V.’s mother agreed to the surgery, and Respondent set up the surgery for September 7, 1993. After returning home, U. V. began complaining of problems with his right eye. His sight was deteriorating at this time, heightening his feeling of isolation from the world around him. In the meantime, Respondent had the laboratory work done in preparation for the surgery. His office contacted U. V.’s physicians to get medical information in preparation for the cataract surgery. But they were unable to get such information from the physicians’ offices. On September 7, U. V. and his family returned to Ft. Myers for the surgery. The board-certified anesthesiologist examined U. V. and found that he had wheezing respiration, so the anesthesiologist told Respondent that the surgery had to be postponed. Respondent rescheduled the surgery for September 15, 1993. Respondent and the anesthesiologist then discussed the possibility of using a local anesthetic, which would present fewer risks to U. V. than would be posed by a general anesthetic. But, as is typical with Down patients, U. V. had been fidgety during the August 31 office visit and was a poor candidate for local anesthesia during the extremely delicate cataract surgery that he was about to undergo. Respondent and the anesthesiologist agreed that U. V. would receive general anesthesia for the surgery. After the first surgery was canceled, the anesthesiologist undertook the task of obtaining the medical clearances for general anesthesia. He spoke with U. V.’s primary physician, who practices in the small town where U. V. lived at the south end of Lake Okeechobee between Clewiston and Belle Glade. U. V.’s primary physician appeared as a witness at the hearing. He seemed to suffer from communication problems not entirely attributable to obvious difficulties with the English language. Not surprisingly, the anesthesiologist obtained little useful information from the physician. The anesthesiologist’s nurse called the cardiologist’s office several times on September 15 prior to the surgery. Unable to reach the cardiologist or any of his partners, the anesthesiologist spoke with one of the cardiologist’s office nurses and had her read him U. V.’s chart. Especially interested in U. V.’s cardiac malformations, the anesthesiologist satisfied himself that U. V. could withstand the rigors of general anesthesia and developed a plan, after discussing the case with his partners, to use special drugs and techniques so as to affect V.’s heart and lungs as little as possible. The anesthesiologist also studied either a chest xray taken on September 6, 1993, or a report of the chest xray taken on that date. He examined the xray or report to determine if U. was suffering from any reversible heart problems that might resolve themselves if surgery were postponed. The anesthesiologist found no cardiac problems of this type. Prior to the administration of the general anesthesia, the anesthesiologist spent several hours with U. V. and his family discussing the risks and benefits of general anesthesia. U. V.’s mother accepted the risks and agreed to the use of the general anesthesia. U. V.’s cardiologist testified that, if asked about the surgery and general anesthesia, he would have cautioned Respondent and the anesthesiologist of the risks of surgery, but he would not have offered an opinion on the advisability of using general anesthesia on U. V. The cardiologist would have left the decision on this matter to the anesthesiologist. On September 15, 1993, Respondent removed the cardiac from U. V.’s left eye. The surgery was flawless. During the surgery, U. V. was stable and tolerated the anesthesia. Following the surgery, U. V. awoke in the recovery room, where he was alert and following commands. Once U. V. began to breathe better on his own, the ventilator machine was turned off. U. V. suddenly developed cardiac arrhythmia and died within an hour. Respondent did not deviate from the applicable standard of care in his diagnosis and treatment of U. V. Respondent’s medical records amply memorialize his diagnosis and fully justify the surgery undertaken on September 15, 1993.
Recommendation It is RECOMMENDED that the Board of Medicine enter a final order dismissing the administrative complaint against Respondent. ENTERED in Tallahassee, Florida, on June 4, 1997. ROBERT E. MEALE 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 on June 4, 1997. COPIES FURNISHED: Britt Thomas, Senior Attorney Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 John F. Lauro, Esquire John F. Lauro, P.A. Suite 3950 101 East Kennedy Boulevard Tampa, Florida 33602 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0972 Jerome Hoffman, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
The Issue Whether Respondent, Dien Duong, violated the provisions of Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes, as specifically alleged in the Administrative Complaint, and, if so, what penalty would be appropriate.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, the following material and relevant facts are found: Petitioner, Department of Health, Board of Medicine, is the state agency charged with regulating the practice of physician's assistants pursuant to Chapters 455 and 458, Florida Statutes, and Section 20.43, Florida Statutes. Respondent is and has been at all times material hereto a licensed physician's assistant in the state of Florida, having been issued license number PA 0003211 in 1997. Respondent received a Bachelor's Degree in Biology from Hope College, Holland, Michigan, in 1989 and thereafter received her physician's assistant degree from Western Michigan University in 1991, and became certified in Family Practice and in Surgery in Michigan upon graduation. Respondent has maintained her certification in Family Practice and in Surgery by successfully passing an examination every six years since 1991, in addition to taking a minimum of 100 hours of Continuing Medical Education (CME) courses each year. In 1997 Respondent began working at South Florida Baptist Hospital Emergency Department and has maintained her employment in that department as a physician's assistant. During the course of her employment, Respondent has gained extensive experience in the practice of assessing lacerations and repairing lacerations of all types. Respondent is highly respected by her employing physician, Dr. Charles Eaves, and by her supervising physicians in the emergency department of the hospital. Respondent has never been the subject of discipline or corrective action regarding her professional job performance as a physician's assistant. A physician's assistant is a licensed health care professional who works under the supervision of a doctor. Typical protocol between the supervising doctor and the physician's assistant is for the physician's assistant to inspect and evaluate the patient, examine the injury, prepare the patient for treatment, consult with the supervising doctor, and thereafter administer treatment to the injury approved by the doctor, followed by after-care instructions to the patient. Based upon the testimony of the experts, the protocol between experienced physician's assistants and their supervising doctors is based upon the doctor's respect and confidence in the physician's assistant's abilities, competence, experience and work history. In these mutual trust and respect working relationships, protocol typically permits the physician's assistant to work relatively autonomously. Without involvement of the supervising doctor, the physician's assistant examines emergency room injuries; they often treat the injured patient, and thereafter present the patient's case treatment and the patient's medical record to the supervising doctor for approval and, when recommended, signature for prescribed medication. The protocol between Respondent and her supervising physician, Dr. Diaz, at South Florida Baptist Hospital on May 8, 1998, was that of mutual trust. Patient D.Z. was a 33 year-old male who had fallen from a ladder and, while attempting to break his fall with his right hand, suffered a blunt, T-shaped, tear-like laceration injury to his right hand. The injury was on the palmar aspect in the area of the fifth metacarpal of the hand-bone that extended to the small finger; a complex laceration, described by doctors as a "sort of bust or blunt type," as opposed to a clean knife cut type, approximately 3/4 centimeter in depth. On May 8, 1998, D.Z. presented himself to the South Florida Baptist Hospital (Hospital) emergency room for treatment of his right hand laceration that extended to the subcutaneous level with subcutaneous tissue exposure. The Hospital's triage nurse, after completing preliminary patient information, directed D.Z. to First Care, that part of the hospital's emergency department where Respondent was working. Respondent, following protocol, examined D.Z.'s injured right hand and ordered x-rays to be taken. An x-ray was taken of D.Z.'s right hand and was reviewed by Respondent's supervising physician, Dr. Diaz, prior to treatment of the injury by Respondent. Dr. Diaz concluded that D.Z.'s x-ray was negative, with no broken bones or tendon involved. The medical records noted that D.Z. had the full range of motion of his fingers without numbness or tingling at that time. Respondent's treatment of D.Z. consisted of laying D.Z. on his back with his arm out to his side and using local anesthesia to numb the injured area. After numbing the hand, she infiltrated the wound with one percent plain Lidocaine, irrigated the wound with normal saline, and cleaned the wound with Betadine. She then debrided the tissue. Using sterile techniques, Respondent proceeded to suture the T-shaped laceration of D.Z.'s right hand. Because of the shape and depth of the laceration and because of the exposure of jagged-edge tears to the subcutaneous tissues, Respondent placed four subcutaneous sutures with 4.0 vicryl, an absorbable suture, in order to bring and keep the jagged-edged tears of D.Z.'s laceration together. For the type of wound suffered by D.Z., described as "bust-type-ripping-flesh tear," it is not possible to close a three or four centimeter wound with only surface sutures. Subcutaneous sutures are required for those wounds of this type and depth. For these reasons and acting appropriately within the scope of the practice of an experienced physician's assistant, Respondent determined to use subcutaneous sutures on D.Z., who is right-hand dominate. The experts who testified, Dr. Eaves, Dr. Solomon, Dr. Maddalon and Ms. Vergara, agreed that the process of using subcutaneous sutures helps to control bleeding, reduce tension within the laceration, and minimize potential "air pockets" within the wound, thereby promoting the healing process, and preventing potential, after-surgery, complications. In accord with protocol established between Dr. Diaz and Respondent, it was at the conclusion of her treatment care of D.Z. that she advised Dr. Diaz of her subcutaneous suture treatment and follow-up care plan. Respondent presented D.Z.'s record for his review, approval and signature. Dr. Diaz approved Respondent's subcutaneous suture treatment, her follow- up care plan of keeping the wound clean, taking the prescribed medication and having the sutures removed within a few days during his follow up a doctor of his choice. Dr. Diaz signed both the Emergency Room report and Respondent's suggested prescription medications for D.Z. On May 11, 1998, four days after his treatment and without obtaining and taking his prescription medications as instructed, D.Z. presented himself to Dr. Maddalon's office for a follow-up examination and evaluation of his injury. On May 14, 1998, Dr. Maddalon, who employed D.Z.'s mother as his office manager and had employed D.Z. for six years to clean his office and who had operated and treated D.Z.'s right hand for carpal tunnel syndrome some years earlier, examined D.Z.'s right hand following an earlier examination by his physician's assistant. On May 15, 1998, during exploratory surgery, Dr. Maddalon reopened the laceration of D.Z.'s right hand and observed that a subcutaneous suture had passed through the ulnar nerve and tied the ulnar digital nerve to the adjoining soft tissue. He removed the subcutaneous suture and removed the damaged part of the ulnar nerve. He then re-attached the exposed ends of the ulnar nerve. D.Z. recovered satisfactorily from Dr. Maddalon's surgery with most but not all of the sensation returning to the little finger on his right hand. According to his deposition, and without a review of D.Z.'s medical records from South Florida Baptist Hospital emergency room prepared by Respondent, Dr. Maddalon opined that certain protocol should be followed in treating "blunt-tear" type hand injuries like that suffered by D.Z. Dr. Maddalon went on to stress, however, that in his opinion placing subcutaneous sutures in such an injury as D.Z.'s was not below the standard of care for a physician's assistant. Deborah Vergara, a physician's assistant at Town and Country Hospital, Tampa, Florida, qualified as an expert in physician's assistants' duties, responsibilities and protocol, and after reviewing D.Z.'s medical records, opined that the care provided D.Z. by Respondent during treatment on May 8, 1998, was appropriate for a patient with D.Z.'s type laceration and was not below the standard of care for a physician's assistant. Deborah Vergara further opined that a suture passing through the ulnar nerve, in and of itself, is not a breach of the standard of care, and she was not aware of any textbooks for physician's assistants that prohibited ever placing subcutaneous sutures in a laceration. Dr. Charles Eaves, D.O., an expert in emergency medicine and an expert in supervising physician's assistants and who also has been the supervising doctor of South Florida Baptist Hospital for the past three years, opined that Respondent's placing subcutaneous sutures in a palmar laceration was absolutely within the standard of care. Dr. Eaves further opined that Respondent's entries in D.Z.'s medical records were within the standard of care. Dr. Barry Solomon, Board Certified expert and employed by the Physician Health Care Alliance in Clearwater, Florida, after review of all of D.Z.'s medical records from South Florida Baptist Hospital, the Administrative Compliant filed in this case, Dr. Maddalon's deposition, and records from Brandon Regional Medical Center, gave his opinions in the following areas: Protocol of supervising physician and physician's assistants working in specific areas of medicine. According to Dr. Solomon, physician's assistants generally operate with relative autonomy, based upon the experience of the assistant and the confidence of the supervising physician. Physician's assistants see low acuity patients, leaving the physician to see high acuity patients. Physician's assistants do check with the physician on duty as they proceed through treating a patient, checking to make sure what they are going to do is appropriate and have the physician review and sign the chart as the patient is being made ready for discharge. Protocol for physician's assistants suturing palmar lacerations. Dr. Solomon opined that Respondent's conduct when presented with a patient with a palmar laceration in a subcutaneous area with an abnormal, complex laceration, and after assessment for nerve damage, tendon damage, bone injury, and after obtaining an x-ray which was reviewed by the emergency room physician at the time, and then proceeding to place a two- layer closure consisting of four subcutaneous sutures and eleven external sutures to close the wound, was within the standard of care of physician's assistant, in this case, the Respondent. Dr. Solomon further opined that there is nothing wrong with placing subcutaneous sutures in a hand laceration and there is always a risk, with a deep wound that nerves, blood vessels, arteries and veins could potentially be hit or sutured. This risk is a recognized complication when one places subcutaneous sutures in that (hand) part of the body. He concludes that Respondent practiced within the physician assistant's standard of care in her subcutaneous suture treatment of Patient D.Z.'s right hand. Petitioner has failed to provide the opinion of an expert that establishes a standard of care for an experienced physician's assistant; has failed to provide evidence of standard of care for maintaining medical records; and has failed to provide an expert opinion in support of the allegation that Respondent's treatment of D.Z.'s right hand laceration fell below a physician's assistant standard of care for treatment of hand lacerations. The testimony of Dr. Charles Eaves, Dr. Barry Solomon and Deborah Vergara is credible in establishing that Respondent, Dien Duong, actions were not violations of Subsection 548.331(1)(m) and 488.331(1)(t), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Respondent not guilty of violating Subsections 458.331(1)(m) and (t), Florida Statutes. DONE AND ENTERED this 2nd day of May, 2002, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 2002.
The Issue Whether Respondent, Rick J. Billings, O.D., committed the acts alleged in the Administrative Complaint and, if so, what disciplinary action shall be taken against his license to practice optometry.
Findings Of Fact Petitioner, the Department of Health (Petitioner), is the state agency charged with enforcing the statutes and regulations governing the practice of optometry in the State of Florida. However, at the time the complaints in this cause were filed, this responsibility was assigned to the Agency for Health Care Administration. Respondent, Rick J. Billings, O.D., is, and has been at all times relevant to this proceeding, a licensed optometrist in the State of Florida, having been issued License No. OP 0001816 in 1983. Respondent is a Board-certified optometrist and has practiced in Sarasota, Florida, for 13 years. Patient D.R. first presented to Respondent on August 18, 1992. At the time of the initial visit, Patient D.R., a ninety- year old female, was accompanied by her niece, Phyllis Glass. During that initial visit Respondent performed a pre- operative examination, including a vision test, on Patient D.R. Based on his examination, Respondent diagnosed a cataract in Patient D.R.’s left eye and recommended surgical removal of the cataract by Harry B. Grabow, M.D. Notwithstanding this recommendation, Patient D.R. was free to return to her former ophthalmologist had she chosen to do so. Dr. Grabow is an ophthalmic surgeon, Board-certified in ophthalmology in the State of Florida and by the American Board of Eye Surgery. Dr. Grabow has been in private practice in Sarasota, Florida, for 20 years and his medical practice is known as the Sarasota Cataract Institute. Patient D.R. was first seen by Dr. Grabow on September 2, 1992, and again for a pre-operative visit on September 18, 1992. Dr. Grabow performed surgery for the cataract of Patient D.R.’s left eye on September 22, 1992. During his treatment of Patient D.R., Dr. Grabow provided her with written instructions regarding pre-operative and post-operative care and activity, and with medications or prescriptions and written instructions for their use. These printed instructions had been previously discussed with Respondent. Dr. Grabow saw Patient D.R. post-operatively on the first post-operative day, September 23, 1992, and then discharged her to return to the care of Respondent. Thereafter, Respondent assumed responsibility for Patient D.R.'s care. On October 5, 1992, Patient D.R. presented to Respondent for a post-operative visit. At that time, Respondent conducted a problem-specific post-operative examination of Patient D.R. The examination included tests for visual acuities, far and near, corrected and uncorrected, to assess the patient's need for glasses; keratometry; refraction assessment; external examination; slit-lamp pupillary examination; test of macular regions; and bio-microscopy. Respondent was unable to perform a tonometry because Patient D.R. refused. The results of the October 5, 1992, post-operative examination of Patient D.R. were recorded on a form provided by Dr. Grabow; supplied all the information about Patient D.R. that Dr. Grabow needed; and was completed by Respondent in a format that was useful to Dr. Grabow. During the October 5, 1992, office visit, Respondent scheduled Patient D.R. for a re-check in four weeks. However, the patient cancelled her appointment. Thereafter, someone from Respondent’s office called Patient D.R. to make an additional follow-up appointment, but the patient refused, believing that a follow-up visit was unnecessary. Respondent kept the required written optometric records regarding Patient D.R. and otherwise met the applicable standard of care. The written optometric records made and maintained by Respondent were such that a similarly trained optometrist could have treated Patient D.R. after review of her record. The tests performed by Respondent on Patient D.R. during her October 5, 1992, visit were appropriate in a post- operative co-management situation. Likewise, Respondent properly recorded the examinations and the results thereof. During Patient D.R.’s post-operative visit, Respondent did not list medications or re-instruct Patient D.R. regarding medication use. Because Respondent made no changes in the post- operative medication or instructions given by Dr. Grabow, it was unnecessary for Respondent to make notations concerning them. Respondent would have made such notations only if he were changing the previously issued instructions or writing a new prescription. Respondent did not record any information relative to patient education because verbal and written instructions concerning eye care had been provided to Patient D.R. by Dr. Grabow. Furthermore, it was unnecessary for Respondent to repeat or elaborate on those instructions, absent a change or an indication that the patient did not understand the instructions. In this case, there was neither a change in Dr. Grabow’s instructions nor any indication that Patient D.R, did not understand those instructions. On or about October 8, 1992, Dr. Grabow received from Respondent the post-operative co-management information regarding Patient D.R. The information on Patient D.R. that Respondent provided was what Dr. Grabow expected and needed. Similarly, Dr. Grabow determined that the tests performed by Respondent on Patient D.R. during her post-operative visit were adequate for his purposes and met the standard of care for optometrists as well as opthalmologists. On November 26, 1991, prior to seeing Patient D.R., Respondent entered into a Supervised Co-Management Agreement (Agreement) with Dr. Grabow and Sarasota Cataract Institute. Prior to entering into the Agreement, Dr. Grabow and the Sarasota Cataract Institute determined that Respondent was capable of competent post-operative co-management of cataract patients. Moreover, it was determined that Respondent’s post- operative care record met the standard of care for an optometrist in that community. Pursuant to the Agreement, Respondent was permitted to participate in the post-operative care of cataract patients. However, the ultimate responsibility for the care of the co-managed patient remained Dr. Grabow's, as the operating and supervising surgeon. It is Dr. Grabow's custom and standard practice to see his post-operative cataract patient only once. Because patient needs may vary, Dr. Grabow’s practice is to leave the frequency and duration of post-operative examinations to the discretion of the co-managing optometrist who assumes responsibility for the patient. Since entering into the Agreement with Respondent, Dr. Grabow has been satisfied with the care that Respondent rendered to patients which they co-manage, including Patient D.R. In all cases, Dr. Grabow has always provided whatever supervision was necessary, although no such supervision was required during the course of Patient D.R.'s post-operative care. There is no defined standard of care in the statutes or the Board's rules that apply to co-management of post- operative cataract patients. The standards are left to the discretion of the co-managing physicians. Here, the protocol crafted by Dr. Grabow and Respondent became the standard of care, and the post-operative care of Patient D.R. met the applicable standard of care as well as the expectations of Dr. Grabow. The eye examinations required of an optometrist in a post-operative co-management situation are left up to the professional judgment of the doctor or doctors involved, and depending on the type of cataract surgery, the techniques used by the surgeon and the agreement between the co-managing physicians. Respondent performed an examination consistent with that judgment. At all times material hereto, there were no published requirements that specified or enumerated the examinations that should be performed on post-surgery cataract patients. However, with regard to the examinations performed on Patient D.R. during her post-operative care visit, Respondent provided care within the applicable community standard. Respondent's notations of the results of the examinations are consistent with the standard of care. There are no statutes, rules, or guidelines requiring an optometrist to provide patients with instructions regarding their medication or to record a rescheduled visit in the patient's medical record. In this case, based on the Agreement and his previous discussions with Dr. Grabow, Respondent knew what medications and instructions Patient D.R. had been given by Dr. Grabow. In this regard, Respondent met the standard of care. At all times relevant to this proceeding, Medicare permitted a global fee for cataract surgery, which was allowed to be divided in co-management care between an ophthalmologist and optometrist. Under the Medicare-prescribed fee schedule, optometrists who provided post-operative care were able to collect 20% of the global fee; and the operating and supervising physician could receive 80% of the global fee. The division of the global fee between Dr. Grabow and Respondent in Patient D.R.'s case was in compliance with Medicare regulations. Pursuant to 1992 Medicare rules related to billing, the doctor who assumed care in the post-operative period and received the permitted 20% of the global fee was responsible for the care of the cataract patient for up to 90 days after the patient’s first post-operative visit to that physician. After he had seen the patient for one post-operative visit, the doctor was allowed to bill for this twenty percent. No specific number of visits was required in order to bill for 20% of the global fee. However, Medicare did require that the co-managing optometrist assume responsibility for the post-operative care of the patient for the ninety-day period. In 1992, Respondent charged $220.00 for post- operative care for cataract patients. These charges included seeing the patient a minimum of one time after the surgery and being available for a ninety-day period thereafter. Consistent with this fee schedule, Patient D.R. as Medicare patient, was charged and paid a co-payment or estimated deductible of $44.00. Respondent's billing service then, billed the difference, $176.00 to Medicare. This post-cataract surgery care bill submitted to Medicare by Respondent was proper as to the amount claimed for the services provided. With respect to the type of claim that was being filed, however, Respondent's billing service mistakenly filed the claim for Patient D.R.’s post-operative case as an unassigned claim. As a result of the claim being incorrectly designated as an unassigned claim, Medicaid sent 80% of the Medicare approved amount for the post-operative services, $174.86, to Patient D.R. In late January 1993, Patient D.R.’s niece received a call from a member of Respondent’s office staff concerning the $174.86 check. During the conversation, Ms. Glass was told that the charge for post-operative services was $220.00 and that the $174.86 check had been sent to Patient D.R. in error. Subsequently, Ms. Glass telephoned Respondent to discuss the matter. Respondent explained to Ms. Glass that the check $174.86 represented his portion of the total charge for post- operative cataract services. Respondent further explained that this amount included his being available to Patient D.R. for ninety days from October 5, 1992, the date of her post-operative visit to Respondent's office. Respondent's representations and those of his staff were substantiated in the Explanation of Medicare Benefits Statement (Explanation) sent to Patient D.R. According to the Explanation, which was dated November 9, 1992, Respondent’s charge for “care after [cataract] operation" was $220, but the Medicare approved amount for these services was $218.57. After deducting the 20% co-payment amount paid by Patient D.R. to Respondent, the Medicare approved payment for post-operative care was determined to be $176.86. The Explanation noted that because the provider did not accept assignment, Patient D.R. would receive this payment. After receiving the Explanation and communicating with Respondent's office and billing service, Patient D.R. and her family incorrectly assumed that Respondent’s bill for Patient D.R.'s post-operative care was fraudulent. Ms. Glass did not believe that Respondent performed post-operative services for her aunt, and apparently misunderstood or was unaware of the co- management agreement between Dr. Grabow and Respondent. In fact, Ms. Glass and/or her husband were so concerned about Respondent's bill that they wrote letters of complaint to various governmental agencies “alerting them to the fact that we [feel] that there was a miscarriage of justice.” Respondent’s billing records related to Patient D.R.’s post-operative care were reviewed by experts in the area of Medicare and the Medicare Fraud Branch Operations. These reviews failed to disclose any indication that Respondent was guilty of fraud, deceit, negligence or incompetence, or misconduct in the practice of optometry. Similarly, there was no finding that Respondent improperly billed Medicare for services provided to Patient D.R. The Medicare check in the amount of $176.86 for post- operative services Respondent provided to Patient D.R. was never forwarded to Respondent nor did he ever receive payment for these services. In 1992, a co-management situation such as occurred in this case was not deemed to be an improper fee division or receiving a fee for a referral. The arrangement was legal, and pursuant thereto, it was appropriate for the optometrist and the ophthalmologist to both receive payment from Medicare for the services they performed. There was nothing found in review of Patient D.R.'s record to indicate an unlawful kickback in cash or in kind nor a violation of Section 455.657, Florida Statutes. Except for the complaints arising out of the Respondent's treatment of Patient D.R., Respondent has not been the subject of any other disciplinary action by the Board.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing the Amended Administrative Complaint against the Respondent, Rick J. Billings, O.D. DONE AND ENTERED this 24th day of March, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 24th day of March, 1998. COPIES FURNISHED: William C. Childers, Esquire Thomas Wright, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 A. S. Weekley, Jr., M.D., Esquire Holland & Knight LLP 510 Vonderburg Drive Suite 3005 Brandon, Florida 33511 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700 Pete Peterson, Esquire Department of Health 1317 Winewood Boulevard Building 6, Room 102-E Tallahassee, Florida 32399-0700
The Issue The primary issue for determination is whether Sea Breeze Health Care (Respondent) committed the deficiencies as alleged in the Amended Administrative Complaint dated April 2, 2004, which amended both complaints in the above-styled consolidated cases. Secondary issues include whether Petitioner should have changed the status of Respondent's license from Standard to Conditional for the time period of August 28, 2003 until October 29, 2003; and whether Petitioner should impose administrative fines for alleged deficiencies that are proven to be supported by the evidence.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes (2003). Respondent is licensed to operate a nursing home located at 1937 Jenks Avenue, Panama City, Florida 32405 (the facility). By stipulation of the parties, the facts reveal that Respondent is a long term care facility that receives Medicare and Medicaid funds for compliance with Federal statutory and rule requirements. Petitioner is required to classify deficiencies according to the nature and scope of the deficiency. The classification of deficiencies is also determinative of whether the licensure status of a nursing home is "standard" or "conditional" and also governs the amount of administrative fine to be imposed. Petitioner conducted an annual survey of Respondent's facility from August 25th through August 28th, 2004. Upon completion of that survey, Petitioner prepared a report that charged Respondent with violations of various nursing home regulations. This report organized each of the charged violations under “Tags,” which are shorthand references to the regulatory standards that Petitioner alleges were violated. Additionally, Petitioner assigned, as required by law, class II ratings to the four deficiencies or Tags ( F223, F241, F314, and F318) at issue in this proceeding. Resident 6 is a 56 year old, cognitively alert male who was admitted to Respondent's facility on May 21, 2003. He had a history of diabetes. When admitted to the facility, he had pressure ulcers on his coccyx and right heel, and his left leg had been amputated above the knee. He was referred to physical therapy to improve his functional mobility. On July 25, 2004, a doctor ordered that Resident 6 was to receive a sliding board to assist staff in transferring the Resident from his bed to his wheelchair, based upon a recommendation for the board made by the facility’s physical therapist. The sliding board was never ordered. Additionally, the doctor ordered a knee brace for Resident 6's right knee that had been recommended by the therapist for the purpose of increasing the Resident's range of motion and decreasing muscle spasms to his right hamstring. Respondent provided Resident 6 with a knee brace from July 25th until August 4th; however, the Resident complained of pain that it was causing him. The nursing staff then asked the physical therapist to re-evaluate the brace. A new brace, to have been ordered for the Resident, was processed incorrectly by the supply manager at the facility. The brace request was then rejected by Respondent's corporate office. While awaiting the receipt of the new brace, the physical therapist directed the restorative nursing staff to use a temporary brace and pillows as wedges around the Resident’s leg in lieu of the permanent brace, which they did. Additionally, the Resident's pain medication was increased until the new brace could be obtained. During the course of Petitioner's survey, the surveyor observed that the Resident complained on six separate occasions of pain and muscle spasms. The knee brace did not arrive until September 3, 2003. The failure of the facility's supply manager to order the devices on the correct form deprived Resident 6 of devices needed to improve his range of motion. As noted above, Resident 6 was admitted to the facility with pressure sores on his coccyx and right heel, classified as stage IV wounds. Respondent's facility’s treatments of the Resident's coccyx wound was inadequate because Resident 6 had a physician’s order to treat his coccyx wound daily with calcium alginate. However, the wound care nurses did not follow that order and instead followed the facility’s wound protocols that directed staff to treat the wound every three to four days and as necessary, such as when the wound became contaminated with feces. After the completion of Petitioner's survey, Respondent personnel contacted Resident 6's physician about the discrepancy between the order and the protocols. The physician directed that the order be changed to comport with the facility’s protocol. During the survey, Petitioner's surveyor observed the wound care nurse using unclean techniques when she changed the Resident’s coccyx wound care dressing. The wound care nurse’s testimony denying this observation is not credible. The surveyor observed the wound care nurse, during the course of changing the Resident's wound dressings, retrieve calcium alginate from a previously opened sterile package with her bare hands, then cut a length for use with scissors retrieved from her pocket, all before washing her hands and without gloves. After cutting the calcium alginate for use, the wound care nurse laid this piece of medication on the dressing area, then put other supplies and gloves on top of it. When packing this medication into a wound, the medication should be kept as clean as possible and the dressing supplies should be kept on a clean dressing field. The unclean manner of dressing Resident 6's wounds, coupled with the directive from personnel that he defecate in his diaper, exposed his coccyx wound to contamination from feces. In the course of Petitioner's survey of Respondent's facility during the period of August 25-28, 2003, Petitioner's surveyor overheard Resident 6 tell the facility wound care nurse that he needed to go to the bathroom. The wound care nurse offered the Resident no assistance and told him to defecate in his diaper. Later in the course of further questioning of the patient, Petitioner's surveyor learned that Respondent's staff frequently acted in the fashion observed by the surveyor, forcing the Resident to defecate in his diaper and sit in his feces. The facility wound care nurse disputed the surveyor’s account of her conversation with Resident 6, and denied that she told Resident 6 to defecate in his diaper. Her testimony is not credited. Resident 6 was toileted in a manner that violated his dignity.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order upholding the assignment of the Conditional licensure status for the period August 28 through October 29, 2003, and imposing an administrative fine of $2,500 for each of the violations proven in Count I, Count II, and Count IV of the Amended Administrative Complaint, for a total of $7,500. DONE AND ENTERED this 21st day of July, 2004, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 2004. COPIES FURNISHED: Gerald L. Pickett, Esquire Agency for Health Care Administration Sebring Building, Suite 330K 525 Mirror Lake Drive, North St. Petersburg, Florida 33701 R. Davis Thomas, Jr. Qualified Representative Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302-1300 Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Lealand McCharen, Agency Clerk 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308
Findings Of Fact Petitioner, Department of Health and Rehabilitative Services (HRS), is designated as the state agency responsible for the administration of federal and state Medicaid funds, and is authorized by statute to provide payments for medical services. Respondent, Marvin H. Ledbetter, is a doctor of osteopathy who is enrolled as a general practitioner provider in the Medicaid Program. His professional office is in Ormond Beach, Florida where he is engaged in family practice. Under the Program, Ledbetter is assigned a provider number (48220-0) which is used to bill Medicaid for services rendered to Medicaid recipients. During calendar year 1981, which is the only time period in question, Ledbetter received $42,809 in Medicaid reimbursements from HRS, of which $28,062 related to fees for Medicaid hospital patients. The latter category of fees is at issue. In order to qualify for federal matching Medicaid funds HRS must meet certain federally-imposed requirements, including the establishment of a program integrity section designed to insure that all Medicaid services are medically necessary. If they are not, HRS is obliged to seek recoupment of funds paid to the provider. This proceeding involves an attempt by HRS to recoup certain funds paid to Ledbetter for hospital services. After providing medical services to various hospital patients, Ledbetter completed and sent in the necessary forms to obtain payment. As noted earlier, these payments totaled $28,062 during 1981. Upon receipt of the forms, HRS input the information from the forms into a computer data base, along with similar information from other Medicaid providers throughout the State. This information included, among other things, the number of admissions, number of discharges, amount paid for hospital services and length of stay. The retention of such data is necessary so that possible overpayments may be detected by HRS through the statistical analysis of claims submitted by a group of providers of a given type. Because Ledbetter's total discharges exceeded the average of other family physicians throughout the State, the computer generated a report which flagged Ledbetter for further review and examination. An HRS analyst conducted such a review of Ledbetter's records, and found his average hospital length of stay for patients to be acceptable when compared to the average physician in the State. This report was forwarded to the HRS peer review coordinator who randomly selected thirty of Ledbetter's patients from the computer, and obtained their patient charts (numbering sixty-eight). Such a statistical calculation is authorized by Rule 10C-7.6(4)(b), Florida Administrative Code. A medical consultant employed by HRS then reviewed twelve of the sixty-eight charts and recommended the records be sent to a Peer Review Committee (PRC) for its review and recommendation. This committee is authorized by Rule 7C-7.61(4)(c), Florida Administrative Code serves under contract with HRS, and is composed of eight members of the Florida Osteopathic Medical Association. It is their responsibility to review the files of physicians whose Medicaid payments are questioned by HRS's program integrity section. When Ledbetter's records were forwarded to the PRC by HRS, the transmittal letter stated that a "study" of his records had been made, and that said study revealed "overutilization of inpatient hospital services" and "excessive lengths of stay." After a PRC review was conducted in early 1984, the records were returned to HRS with a notation that "mild overutilization" had occurred. According to informal guidelines used by the PRC, this meant that Ledbetter's overutilization fell within the range of 0 percent to 20 percent. HRS accepted these findings but for some reason initially determined that a 40 percent overutilization had occurred, and that Ledbetter was overpaid in 1981 by 40 percent for his hospital services. Finding this amount to be inconsistent with the mild overutilization guidelines, HRS arbitrarily added back two days to each patient's hospital stay, which decreased overutilization to 33.8 percent, or $9,505.06 in overpayments. By proposed agency action issued on May 18, 1984, it billed Ledbetter this amount, thereby precipitating the instant controversy. All of the patients in question were from the lower income category, and most were black. Their home conditions were generally less than desirable, and the ability of the parents to supply good nursing care to ill or sick children was in doubt. At the same time, in 1981 Ledbetter was working an average of 56 hours per week in the emergency room of a local hospital and devoted only minimal time to his family practice. Because of this Ledbetter's number of hospital admissions greatly exceeded the norm when compared to general practitioners who engaged in an office practice. Consequently, he received most of these patients through the emergency room rather than his office and was dealing with patients whose socioeconomic conditions were an important consideration. These factors must be taken into account in analyzing Ledbetter's patient records. HRS does not contend that Ledbetter failed to perform the services for which he was paid--rather, it questions only whether some of the admissions were medically necessary and whether some of the lengths of stay were too long. In this regard, conflicting expert testimony was offered by the parties concerning the amount of overutilization, if any. Expert testimony by two local doctors of osteopathy support a finding that only mild overutilization of admissions and lengths of stay occurred. This is corroborated by HRS's expert (Dr. Smith) and by the testimony of its "live" expert, Dr. Conn, who conceded that lengths of stay were only "a little bit too long." The more persuasive testimony also establishes that while mild overutilization falls within the range of 0 percent to 20 percent, 10 percent is an appropriate median in this proceeding. Using this yardstick, Ledbetter should reimburse HRS for 10 percent for his billings, or $2,806.20.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent repay petitioner $2,086.20 in excess Medicaid payments received for calendar year 1981 claims. DONE and ORDERED this 16th day of May, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of May, 1985.
