Findings Of Fact Based upon the evidence adduced at hearing, the parties' prehearing stipulation, and the record as a whole, the following Findings of Fact are made: Respondent is now, and has been for approximately the past 15 years, a physician licensed to practice medicine in the State of Florida. He specializes in internal medicine and cardiology and is board certified in these specialities. He currently is the Chief of Cardiology and head of the Coronary Care Unit at North Ridge Hospital and has staff privileges at approximately five other hospitals in the Broward County area. At all times material to the instant case, Health Imaging, Inc., (Health) was in the business of providing ultrasound imaging services in the State of Florida at the request of physicians, hospitals and members of the community at large. The tests performed by Health were non-invasive studies that involved no health risks. They included echocardiograms, carotid ultrasounds and other studies of the heart and vascular system done with ultrasound equipment. Unlicensed technicians operated the equipment and administered the tests. Florida-licensed physicians interpreted the test results. In August of 1987, Warren Green and his wife, the owners of Health, contacted Respondent and asked him if he would be interested in contracting with Health to provide such interpretive and diagnostic services. After looking into the matter and satisfying himself that Health's equipment was of good quality and that its technicians were well qualified, Respondent entered into a written agreement (Agreement) with Health, the body of which provided as follows: This agreement made and entered into this 18 day of August 1987 by and between Health Imaging, having its principal business address at 6278 North Federal Highway, Suite 372, Ft. Lauderdale, Florida, hereinafter referred to as "HEALTH" and Jorge Flores, M.D., having his principal business address at 5700 N. Federal Highway, Ft. Lauderdale, Florida, hereinafter referred to as "DOCTOR" is made with reference to the following: WHEREAS, HEALTH is engaged in business throughout the Florida area providing ultrasound and vascular services to hospitals, physician offices and the community. DOCTOR is engaged in the business of providing medical services to his patients and patients of other doctors and hospitals in the Ft. Lauderdale, Florida area. Health desires to contract from DOCTOR for certain diagnostic interpretation services for its own patients and patients of other doctors and hospitals in the Florida area. NOW THEREFORE, HEALTH AND DOCTOR AGREE AS FOLLOWS: Equipment. HEALTH agrees to provide all necessary equipment and supplies to perform the services according to the schedule set forth on Exhibit A, attached hereto. Personnel. Health shall provide qualified technologists to operate the equipment for the services set forth on Schedule A, attached hereto. Solicitation of Employees. DOCTOR shall not during the term of this agreement nor a period of One (1) year after its termination, solicit for employment or employ, whether as employee or independent contractor, any person who is or has been employed by HEALTH during the term of this agreement without the prior written consent of HEALTH. Physician Interpretation Personnel. DOCTOR agrees to provide necessary qualified physicians for interpretations. Payment. For and in consideration of the services and promises contained herein by DOCTOR, HEALTH agrees to pay DOCTOR in accordance with the fee schedule set forth on Schedule A, attached hereto. All fees are to be paid in advance or at time of interpretation. Default. In the event of the default of any payment this contract may be terminated by DOCTOR. Term, Termination. The term of this agreement is for one (1) year. After Thirty (30) days either party may terminate this agreement, without cause, by giving Thirty (30) days written notice provided that in no event may HEALTH terminate this agreement unless all monies owing to DOCTOR under the terms hereof are paid in full. Compliance with Law. Both parties agree to comply with all municipal, state and federal laws and regulations. Governing Law. This agreement shall be construed under the laws of the State of Florida. Independent Contractor. DOCTOR is performing the service and duties required hereunder as an independent contractor and not as an employee, agent, partner, or joint venturer with HEALTH. Entire Agreement. This instrument shall be deemed to contain the entire agreement between HEALTH and DOCTOR and supercedes [sic] any prior or existing agreements, understandings, arrangements, terms, conditions, negotiations, or representations, oral or written, made by either party concerning or affecting the subject matter hereof. No modification of this agreement may be made except in writing, signed by HEALTH and DOCTOR. Schedule A, which was referenced in and appended to the Agreement, read as follows: INTERPRETATION FEE SCHEDULE Community, Corporate, Club and Association Screening Program Fee Schedule. EXAM: Echocardiography only FEE: One thousand dollars (1,000.00) per month for 400 studies in any thirty (30) day period. Five dollars ($5.00) per study for all studies exceeding four Hundred (400) studies in any given thirty (30) day period. Community, Corporate, Club and Association Screening Program Fee Schedule. EXAMS: (Any combination of the following) Carotid Ultrasound with Doppler and Periorbital Doppler Echocardiography Upper and Lower Extremity Doppler Study FEE: Three thousand dollars ($3,000.00) per month for any combination of the above studies, not to exceed 1,500 studies in any thirty (30) day period. Any combination of the above studies will be at a rate of Five Dollars ($5.00) per study in any given thirty (30) day period. Hospital and Physician offices fee Schedule: (Any studies performed in a hospital or Physician office, ordered by a physician) EXAMS Carotid ultrasound with doppler $65.00 Echocardiography $65.00 Abdominal ultrasound $65.00 Holter monitoring $65.00 Peripheral arterial examination $35.00 Peripheral venous examination $35.00 The Agreement and Schedule A were drafted by the Greens without the assistance of an attorney. Respondent furnished Health with interpretive and diagnostic services under the Agreement for approximately 18 months. He provided Health with no other services. Respondent was compensated $1,000 per month the first four months and $3,000 per month the remaining 14 months for his services. Most of the individuals whose test results Respondent interpreted during his 18-month association with Health were self-referred. The remainder of the test takers were referred by physicians. None had any prior professional relationship with Respondent. 1/ Respondent prepared a signed, written report of his findings for each test taker. 2/ He sent the report, along with the materials that he had reviewed in making his findings, to Health, which in turn provided the report to the test taker or to the referring physician, if there was one. 3/ Respondent did not consider the test takers to be his patients. He therefore did not keep copies of the reports he had prepared and sent to Health or the test materials upon which these reports had been based. 4/ The Greens had assured Respondent at the outset, however, that they would maintain these records and make them available to Respondent upon his request should he need them for some reason. The Greens were true to their word. Whenever Respondent asked to see a copy of a report or test materials, 5/ the Greens complied with his request. The Greens still have in their possession copies of the reports Respondent had prepared and transmitted, as well as the related test materials. While Respondent was aware that Health advertised to generate business, he was not asked to assist in any way, either as a consultant or otherwise, in the preparation or placement of any of Health's advertisements. Indeed, the first time he saw one of these advertisements was approximately five or six months after he began his association with Health. The advertisement was in a local newspaper that he happened to be reading. Some months later he saw another advertisement in the same newspaper. He found the contents of this particular advertisement to be "totally unacceptable." He therefore telephoned the Greens and complained about the advertisement. The Greens responded to Respondent's complaint by discontinuing the advertisement. A short time thereafter, upon the suggestion of a Department investigator who warned Respondent "to stay away from these people," Respondent severed his relationship with Health. He did so, not because he believed that he had done anything wrong, but because the Department, through its investigator, had expressed its concerns regarding the matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Medicine enter a final order dismissing the Amended Administrative Complaint in its entirety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of January, 1993. STUART M. LERNER 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 15th day of January, 1993.
Findings Of Fact 1. The Agency served a Final Audit Report on the Petitioner, Fortune Dental Associates, Inc. The Final Audit Report alleged that the Petitioner received $3,870.00 in Medicaid overpayments for dates of service during the period of January 1, 2008 through December 31, 2011. The Final Audit Report also applied a fine in the amount of $774.00 and assessed costs in the amount of $52.69. 2. Petitioner filed a petition for an informal hearing (Exhibit 2), admitting the allegations of fact contained in the Final Audit Report, but requesting to be heard at an informal proceeding. 3. Based on the Petitioner’s petition, this matter was referred to an Informal Hearing Officer and an informal hearing was held on September 20, 2013 pursuant to Section 120.57(2), Fla. Stat. During the course of the hearing, the Informal Hearing Officer determined that the Filed May 30, 2014 11:32 AM Division of Administrative Hearings Petitioner had raised disputed issues of material fact and this case was referred to the Division of Administrative Hearings so that a formal hearing could be conducted pursuant to Section 120.57(1), Fla. Stat. (Exhibit 3). 4. On February 26, 2014, the Administrative Law Judge issued an Order Lifting Abeyance and Requiring Status Report (Exhibit 4), which required both parties to confer and advise the Court of the status of the hearing and mutually agreeable dates by March 24, 2014. 5. On or about March 24, 2014, the Agency filed the Agency’s Status Report and Request for Order to Show Cause (Exhibit 5). The motion alleged that the Petitioner was not in compliance with the Court’s Order, which required conferral for a joint status report. The motion further alleged that the Petitioner appeared to have abandoned the litigation. Based on the foregoing, the Agency requested that the Administrative Law Judge enter an Order to Show Cause. 6. On or about April 7, 2014, the Administrative Law Judge granted the Agency’s motion and entered an Order to Show Cause (Exhibit 6), requiring the Petitioner to explain why the Petitioner’s request for hearing should not be dismissed. 7. On or about April 30, 2014, the Administrative Law Judge entered an Order Closing File and Relinquishing Jurisdiction (Exhibit 7) based on the Petitioner’s failure to provide a response to the Order to Show Cause. 8. The Petitioner has abandoned its petition for hearing in this cause.
Conclusions Having reviewed the Final Audit Report dated June 5, 2013, attached hereto and incorporated herein (Exhibit 1), and all other matters of record, the Agency for Health Care Administration (“Agency”) finds and concludes as follows:
The Issue The central issue in this case is whether the Respondent violated Chapter 458 Florida Statutes as alleged in the Administrative Complaint dated July 11, 1986; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witness and the documentary evidence received at the hearing, I make the following findings of fact: The Respondent, Maria I, Andrakovich, M.D., is a licensed physician in the State of Florida, having been issued license number MEOO2I436. On or about May 1, 1983, Respondent entered into a Service agreement with "The Doctor's Office, Inc." wherein Dr. Andrakovich agreed to provide medical services for the patients at 330 South Dixie Highway, Lake Worth, Florida. Respondent's employment with "The Doctor's Office, Inc." ended in March, 1984. On or about July 12, 1983, Respondent filed with the Board of Medical Examiners an Application for Certification for Physician's Assistant for Jean Eugene Raymond. On August 15, 1983, Mr. Raymond was certified to work under the supervision of Respondent pursuant to Chapter 458 Florida Statutes. On November 22, 1983, Mr. Raymond filed his Biennial Physician's Assistant Certification and reported a change of office address to 1177 Hypo1uxo Road, Lantana, Florida. Respondent executed the affidavit for this certification before a notary public. Respondent never worked at the Hypo1uxo, Road facility. Dr. Andrakovich remained at the prior office location which was approximately five miles from the Hypoluxo site. Prior to his move to the Hypoluxo facility, Mr. Raymond would confer, in person, with Dr. Andrakovich regarding each patient. After moving to the Hypoluxo facility, Mr. Raymond would confer with Dr. Andrakovich by telephone. Respondent relied on Mr. Raymond's judgment that this telephonic system of conferring about patients complied with any legal requirements of their relationship. Respondent did not know the regulations which govern physician's assistants. Many of the patients seen at the facilities on Hypoluxo and Dixie were elderly and suffered heart problems. Respondent's schedule required her to see one patient every fifteen minutes. This patient scheduling rate later increased to one patient every ten minutes. It was difficult for Respondent to confer with Mr. Raymond by telephone and meet the schedule. Respondent assumed Mr. Raymond would confer with the physicians at the Hypoluxo facility. No specific arrangement was made to require physicians at Hypoluxo to supervise Mr. Raymond nor did any physician there assume responsibility for Mr. Raymond's activities. During her employment with "The Doctor's Office, Inc." Respondent treated Norman Shapiro. Mr. Shapiro had a history of heart trouble, diabetes, and hypertension. During the fall of 1983, Mr. Shapiro had complained of increased pain which had resulted in Respondent doubling the strength of Mr. Shapiro's heart medication. Mr. Shapiro's medical record for this period suggested a deterioration in his heart condition. On November 21, 1983, Norman Shapiro went to the Hypoluxo facility and was seen by Mr. Raymond. Mr. Shapiro complained that he was constantly having to take his heart medication by handful amounts. Mr. Raymond recommended no coffee, tea, chocolates or smoking and that the patient should elevate his head 4-6 inches for sleeping. The only additional medication suggested was Maalox. The treatment recommended by Mr. Raymond was consistent with the diagnosis of a hiatal hernia but was inappropriate given the patient's history of heart disease. The minimally acceptable care within the medical community where "The Doctors' Office" was located would have required the patient Shapiro to be hospitalized. Mr. Raymond did not confer with Dr. Andrakovich regarding Mr. Shapiro's visit on November 21, 1983, until after the treatment had been recommended. Had Dr. Andrakovich seen Mr. Shapiro on that day, she would have put him in the hospital. Dr. Andrakovich believed Dr. Conti had treated Mr. Shapiro on November 21, 1983. On November 21, 1983, the electrocardiogram (EKG) for Mr. Shapiro was within normal limits. Despite the EKG, Mr. Shapiro's symptoms were cardiac- related and had a significant potential for morbidity and mortality. In fact, Mr. Shapiro died on November 22, 1983. Frank Colavecchio was president of the "The Doctor's Office Inc." and made all administrative decisions regarding the facilities on Dixie and Hypoluxo. Mr. Colavecchio administratively moved Mr. Raymond to the Hypoluxo office. On March 15, 1984, Dr. Andrahovich terminated employment with the "The Doctor's Office, Inc". Respondent did not notify the Board of Medical Examiners of this change and at no time advised the Board that she would no longer be supervising Mr. Raymond. It is inappropriate and contrary to standards of good medical practice for a physician's assistant to treat heart patients. Dr. Andrakovich knew or should have known that Mr. Raymond was treating heart patients.
Findings Of Fact Upon consideration of the oral and documented evidence adduced at the hearing, the following relevant facts are found: In General Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes; Chapter 455, Florida Statutes; Chapter 458, Florida Statutes. Respondent is and has been at all times material hereto a licensed physician in the state of Florida, having been issued license number ME 0016786. On February 27, 1984, Florida Medical license of the Respondent was suspended for a period of one year in Department of Professional Regulation vs. Teotimo D. Bonzon, M.D., Case Number 82-799. At all times material to this proceeding, Respondent was the primary care physician for Mary T. Upton, a patient with a history of bronchial asthma. Valium On January 11, 1985 the patient, Mary T. Upton, developed onset of acute respiratory distress and was seen by the Respondent, first in his office and then as an outpatient. On the second occasion, Respondent gave the patient valium, a Schedule IV Controlled Substance. On January 12, 1985, Upton was admitted to Methodist Hospital of Jacksonville, Florida, with a complaint of Acute Asthmatic Bronchitis. Bronchial Asthma is a condition that affects the respiratory drive. Valium relaxes the muscles and sedates the central nervous system and respiratory drive of a person and, as such, is not a drug to be administered in an outpatient setting under the circumstances that Respondent administered valium to Upton. Theo-Dur After admission and initial treatment, the patient continued to experience respiratory distress, and the Respondent was notified. Respondent ordered the drug Theo-Dur to be given orally. This was after Upton was given Theophylline, but before she was stabilized on Theophylline. Theo-Dur is a long sustained action form of Theophylline, which takes twelve hours to have an appreciable affect and, as such, is used primarily for maintenance and should not be used in acute situations such as Upton's until the patient is stabilized. Theophylline At the time Upton was admitted to the hospital on January 12, 1985 and Respondent started her on Aminophylline (also called Theophylline I.V.), Respondent was aware of Upton's previous use of medication containing Theophylline for her asthma condition and that she had a prescription to obtain such medication. Although Respondent was aware of Upton's previous use of medication containing Theophylline, Respondent did not inquire of Upton, or in any other manner determine, if she had ingested any form of Theophylline before administering the Aminophylline I.V. upon admission to the hospital on January 12, 1985. Upton had taken Theophylline before the Theophylline I.V. was administered. It is the recognized standard of care for a physician to obtain the level of Theophylline in the patient's body before administering Theophylline and, to periodically check the level of Theophylline to assure the best therapeutic level is achieved. Upton was on the hospital floor at approximately 11:20 a.m. on January 12, 1985 and the first time a physician ordered the Theophylline level checked was between 4:00 p.m. and 5:00 p.m. on January 12, 1985 after Respondent consulted with Dr. Libao. Before the Theophylline level was checked, Respondent had already administered Theo-Dur. Toxicity of Theophylline occurs when the content of the blood exceeds 20 milligrams per 100cc and any level over the 20 milligrams per 100cc may cause the patient to have gastrointestinal side affects such as nausea, vomiting and nervousness which may be life threatening. Respondent's failure to monitor the Theophylline level resulted in the patient receiving a toxic level of 24 milligrams per 100cc of Theophylline; however, there was no evidence that Upton suffered any side affects. D. Thoracostomy On January 17, 1985, routine chest x-rays confirmed a pneumothorax in Upton's left lung which was reported to the Respondent by the radiologist, Dr. Victor Saenz, by telephone between 10:00 a.m. and 11:00 a.m. on January 17, 1985. Without reviewing the x-rays, Respondent proceeded to treat the left pneumothorax with a chest tub (or Thoracostomy) in Upton's right lung. There was sufficient time to review the x-rays since the Thoracostomy was not performed until between 2:00 p.m. and 3:00 p.m. on January 17, 1985. Respondent did not order follow-up x-rays the day of the surgery to determine the effectiveness of the surgery. It is accepted medical practice for the physician, particularly a surgeon who performs an invasive procedure such as a thoracostomy, to order x- rays immediately following the surgery to make sure the procedure is working By placing the chest tub in the wrong side of the lung, Respondent created a situation wherein another pneumothorax might occur; however, by removing the chest tub from the right lung and placing it in the left lung alleviated this possibility. Respondent failed to realize that the chest tub had been placed in the wrong side of the lung (the right side) until the morning of January 18, 1985 when he was advised by the nurse that Upton had a pneumothorax on the left side rather than the right side where the chest tub had been placed by Respondent. Respondent's error was discovered as a result of routine x-rays performed by Dr. Walkett at 7:45 a.m. on January 18, 1985, the day following surgery. These follow-up x-rays also revealed Subcutaneous Emphysema throughout Upton's chest. Placing the chest tub in the right lung will not re-expand the left lung. Upon being informed of his error, Respondent proceeded to the hospital and removed the chest tub from Upton's right lung and placed it in her left lung. As a result of Respondent's error, Upton's heart beat increased around 3:00 a.m. on January 18, 1985 causing cardiac distress. Allergies At the time of the patient's admission it was noted that she was allergic to iodine. However, Respondent having treated Upton for some time prior to this admission, had knowledge that she was not allergic to iodine. Prior to the Thoracostomy and Tracheostomy, Respondent used Betadine scrub on Upton. Betadine contains iodine. Other solutions are readily available at Methodist Hospital that are not iodine-based. Tracheostomy On January 17, 1985 at or about the same time he performed the Thoracostomy, the Respondent performed a surgical procedure known as a Tracheostomy on Upton. Following the Tracheostomy, performed by the Respondent, the patient's condition did not improve and she continued to experience complications, including Subcutaneous Emphysema. Subcutaneous Emphysema occurs when air pockets form under the patient's fat tissue layer which cause swelling and can compromise the patient. On January 18, 1985, the Respondent's temporary admitting and consultation privileges at Methodist Hospital were suspended in a letter from Dr. Wallace Walkett, the president of the Medical and Dental Staff. The treatment of Upton was turned over to other physicians. Dr. Frederick Vontz, a Board Certified Cardiovascular and Thoracic Surgeon was called in by Dr. Walklett to repair the problems with Upton's trachea. When Dr. Vontz first saw Upton she was in moderate to severe distress and her body was swollen from the Subcutaneous Emphysema. On January 26, 1985, Dr. Vontz performed a Bronchoscopy on Upton that showed granulation tissue, which is scar tissue that may be an obstacle to breathing. The cause of this granulation tissue was the tracheostomy procedure performed by Respondent. Due to Upton's difficulty in breathing and the continuing Subcutaneous Emphysema, she was taken to the operating room on January 31, 1985. In the operating room, Dr. Vontz discovered a tear in the trachea that extended to six and one-half centimeters above the carina. Dr. Vontz also discovered that the air causing the Subcutaneous Emphysema was escaping from a false channel in the trachea. The damage to the posterior wall of the patient's trachea was caused by the improper tracheostomy procedure performed by Respondent on January 17, 1985. Upton died at 12:00 noon on March 6, 1985 and, although there is evidence that the tear in Upton's trachea may have contributed to Upton's death, there is insufficient evidence to show that it was clearly the sole cause of Upton's death. The record is clear that the level of care, skill and treatment provided Upton by the Respondent, fell below that which would be recognized as being acceptable under similar conditions and circumstances by a prudent similar physician.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, evidence of record, the candor and demeanor of the witnesses, and Rule 21M- 20.001(2), Florida Administrative Code, it is, therefore RECOMMENDED that the Board enter a Final Order suspending the Respondent, Teotimo D. Bonzon's license to practice medicine in the state of Florida for a period of two (2) years with condition for reinstatement determined by the Board as it deems appropriate. RESPECTFULLY SUBMITTED and ENTERED this 24th day of February, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 24th day of February, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-3022 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner In General 1.-4. Adopted in Findings of Fact 1-4. Valium 1.-4. Adopted in Findings of Fact 5, 8, 7 and 6, respectively. Theo-Dur 1.-2. Adopted in Findings of Fact 9 and 10. Theophylline 1.-2. Adopted in Findings of Fact 11 and 13, respectively. 3.-4. Adopted in Finding of Fact 14. Adopted in Finding of Fact 15. Adopted in Findings of Fact 12 and 16. 7.-8. Adopted in Findings of Fact 12 and 17, respectively. Thoracostomy 1.-4. Adopted in Finding of Fact 18. Adopted in Finding of Fact 19. Adopted in Finding of Fact 20. 7.-8. Adopted in Finding of Fact 19. Adopted in Finding of Fact 21. Adopted in Finding of Fact 20. Adopted in Finding of Fact 22. Adopted in Finding of Fact 23. Adopted in Finding of Fact 24. Adopted in Finding of Fact 26. 15.-l6. Adopted in Finding of Fact 27. 17. Adopted in Finding of Fact 25. Allergies 1.-2. Adopted in Findings of Fact 28 and 29. 3. Rejected as not being material or relevant. Tracheostomy 1.-9. Adopted in Findings of Fact 31-39 Unnecessary in reaching a conclusion in this case. Adopted in Finding of Fact 40. 12.-13. Subordinate to facts actually found in the Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent A. General 1.-3. Adopted in Findings of Fact 2, 1 and 4, respectively. B. The Use of Betadine 1. Adopted in Finding of Fact 28, but clarified. Theophylline Adopted in Finding of Fact 9, but clarified. Adopted in Finding of Fact 13 that Respondent had ordered Theophylline intravenously before checking the Theophylline level in the patient. Theo-Dur Rejected as not supported by substantial competent evidence in the record. Valium Rejected as not supported by substantial competent evidence in the record. Thoracostomy Adopted in part in Findings of Fact 18-27, otherwise rejected. Tracheostomy Adopted in Finding of Fact 31, but modified. Adopted in Finding of Fact 34. Adopted in Findings of Fact 24, 32 and 33, but modified. Adopted in Finding of Fact 36. The first sentence and the first phrase of the second sentence are adopted in Findings of Fact 38 and 39. The balance is rejected as being a restatement of testimony rather than a finding of fact. However, even if the last sentence was stated as a finding of fact, it would be rejected as not being supported by substantial competent evidence in the record. Rejected as not supported by substantial competent evidence in the record. COPIES FURNISHED: MARK A. SIERON, ESQUIRE POST OFFICE BOX 855 ORANGE PARK, FLORIDA 32067 JOHN R. WEED, ESQUIRE 605 SOUTH JEFFERSON STREET PERRY, FLORIDA 32347 STEPHANIE A. DANIEL, ESQUIRE CHIEF ATTORNEY DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 KENNETH D. EASLEY, ESQUIRE GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 DOROTHY FAIRCLOTH, EXECUTIVE DIRECTOR BOARD OF MEDICINE 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 =================================================================
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The action in this case was initiated by the Department, a state agency. The Department was not a nominal party. The Petitioner was the prevailing party in the administrative proceeding brought against his license by the Department in Department of Professional Regulation v. Ali A. Azima , M. D., Case No. 91-3149. The Petitioner incurred attorney's fees and costs in excess of $46,000 in defending the administrative proceeding brought against him in Department of Professional Regulation v. Ali A. Azima, M. D., Case No. 91-3149. There is no dispute as to the reasonableness of the attorney's fees and costs. There are no special circumstances which would make an award of attorney's fees and costs unjust. The Petitioner's medical practice was organized as a professional association in February, 1991, on a fiscal year basis, ending June 30. The Petitioner is the sole owner of the professional association. The Petitioner received all fees for his professional services through his professional association. At all times material to this proceeding, the Petitioner and the Petitioner's professional association combined employed less than 25 employees. At no time material to this proceeding, did the Petitioner and Petitioner's professional association combined have a net worth in excess of two million dollars. The original letter of complaint which ultimately led to the filing of an administrative complaint against Petitioner in Department of Professional Regulation v. Ali A. Azima, M. D., Case No. 91-3149 was written by Dr. Swor on May 25, 1988. In his letter, Dr. Swor expressed concern regarding the level of care being rendered by Petitioner to Petitioner's patients. The letter was received by the Department's Complaint Section and assigned Department's Case Number 010064. Petitioner was notified of the substance of Dr. Swor's complaint in a letter from the Department's Investigator, Jean Clyne, dated August 25, 1988. Dr. Swor was unable to give the Investigator any specifics regarding Petitioner's patients or the level of care provided by Petitioner to his patients that was the basis of his allegations. However, Dr. Swor referred the Investigator to Charles Matthews, M. D., Director, Sarasota Memorial Hospital. It is clear from the Investigator's notes that neither Dr. Matthews nor anyone else was able to supply any information to support Dr. Swor's allegations against Petitioner. However, Dr. Matthews did report to the Investigator that on July 8, 1988, Patient K. Z. was brought into the emergency room of Sarasota Memorial Hospital after a failed forceps delivery at Petitioner's clinic, and that the patient was in acute distress which required immediate surgery. The patient's records from the Sarasota Memorial Hospital and from the Petitioner, including those records from the clinic, were obtained by the Investigator. The patient's records revealed the following: Patient K. Z. was an 18 year old carrying her first child. K. Z. received prenatal care from Petitioner, beginning in her 22nd week, based on information from the patient concerning her last menstrual period. The records do not indicate what care, if any, the patient was receiving prior to her first visit with the Petitioner. No records were requested for this period. The Petitioner saw the patient on nine office visits. On April 27, 1988, the patient's fundal measurement and gestational age (as calculated by Petitioner) indicated either an incorrect due date or problems with the pregnancy. The patient's records do not reflect why the Petitioner did not order an ultrasound at this time. An ultrasound was ordered on July 6, 1988. On June 28, 1988, Petitioner signed a permit for delivery of Patient K. Z. at the birthing center operated by Petitioner. "Dr. Azima and nurse" were listed on the permit as those who would provide services at labor and delivery. The Department of Health and Rehabilitative Services (HRS) Pre-Term Delivery Risk Scoring Form filled out by Petitioner on April 27, 1988, and June 28, 1988, scored Patient K. Z. as a low risk patient. However, Petitioner failed to score the patient on many of the factors listed on the HRS Form, including the patient's age, socioeconomic status and marital status. This form is used to determine whether a patient is a candidate for a birthing center. On July 8, 1988, the patient went into labor and presented at the birthing center at 11:50 a.m., 2cm dilated and 100 percent effaced. The Petitioner was the attending physician. Labor progressed and the patient dilated to 9 cm. The bulging membranes ruptured at 5:27 p.m. The timing of the contractions were not recorded in the records. No fetal monitor was employed. At 7:00 p.m. the contractions were noted to be irregular. Pitocin was started and was monitored by the nurse. The fetal heart rates were recorded in the records once an hour. At 7:30 p.m. the cervix was fully dilated with the fetal head at 0 station. At 9:00 p.m. the station was 1-2 and Petitioner transferred the patient to the procedure room. The patient was prepped and local anesthetic was administered. After a period of time had elapsed and the patient had not delivered, Petitioner made the decision to use forceps to assist in delivery. Before attempting to use the forceps, the Petitioner performed an episiotomy. Petitioner's forceps delivery failed as did Fundal pressure. An ambulance was called to transfer the patient to the hospital. The Pitocin was discontinued. The Petitioner did not suture the episiotomy before the patient was transferred to the ambulance for transport to the hospital. During transport, the Emergency Medical Technicians (EMT's) became concerned over the patient's vaginal bleeding and presented the patient at the emergency room of the nearest hospital. The patient was not treated at this hospital but was transported to the Sarasota Memorial Hospital, notwithstanding that the patient was initially to be transported to a hospital other than Sarasota Memorial Hospital. Upon delivery to Sarasota Memorial Hospital, the patient diagnosed with cephalopelvic disproportionment. Cesarean section was performed and the baby delivered at 11:34 p.m. Subsequently, the episiotomy was repaired. The patient and the baby progressed satisfactorily, and were discharged from the hospital. The Department did not give the Petitioner written notice that the investigation had now gone beyond Dr. Swor's complaint and was focused on the incident concerning Patient K. Z., which occurred after Dr. Swor's complaint. On March 16, 1989, Janet Marley, M. D. rendered a written report after reviewing the medical records for the patient wherein she expressed concern over: (a) birthing centers in general; (b) Petitioner's supervision of two birthing centers that were not immediately accessible to an acute care facility; (c) Petitioner's attempt to perform a "high forceps delivery"; (d) the patient not being a proper candidate for a birthing center and; (e) Petitioner's failure to timely transfer the patient to an acute care facility. Dr. Marley summarized by stating that Petitioner had failed to practice medicine with the level of care, skill and treatment that is recognized as acceptable. The letter from Dr. Marley became a part of the Investigator's report. On December 6, 1989, Petitioner was interviewed by the Investigator regarding his treatment of Patient K. Z. and his remarks became part of the Investigator's report. On December 28, 1989, the investigation was completed and the case was forwarded to the Department's Legal Section in Tallahassee, Florida. Before an Administrative Complaint was filed against the Petitioner, the Department presented its case to the Probable Cause Panel (PCP) of the Board of Medicine on three different occasions. The case was first presented to a PCP in February, 1990. Although the Department has been unable to produce a transcript of the February, 1990, meeting, the transcript of the November 6, 1990, PCP meeting shows that the case was previously considered by the PCP in February, 1990. At its February, 1990, meeting, the PCP would have had before it the complete and final Investigator's Report, including, but not limited to, Patient K. Z.'s medical records and the letter from Department's expert, Dr. Janet Marley. At the time of the February, 1990, PCP meeting, cases were placed into three categories: Cases in which an Administrative Complaint was definitely warranted, in the judgment of the Department's Legal Office; Cases in which an Administrative Complaint was definitely not warranted and; Cases in which additional information, investigation or expert opinion, was needed. Petitioner's case fell into the third category, and a second expert opinion was obtained from Robert Brauner, M. D. by the Department. Dr. Brauner is Board Certified in obstetrics and gynecology, his credentials have been reviewed by the Board of Medicine, and he has been approved to review cases as an expert for the Department. On August 7, 1990, Dr. Brauner issued a written expert opinion. The opinion letter discussed Dr. Brauner's concerns regarding Petitioner's treatment of Patient K. Z. as follows: The clinic's lack of proximity to a obstetrics unit; Petitioner's procedure for dating of Patient K. Z.'s pregnancy; The pre-labor assessments performed on Patient K. Z., by the Petitioner; Petitioner's notes regarding failure of the infant to descend do not make sense; Petitioner's notes regarding the head crowning do not make sense in light of the inability to deliver with forceps. The Petitioner's use and monitoring of Pitocin; The Petitioner's failure to use fetal monitoring; The timeliness of Petitioner's attempt to deliver with forceps; The appropriateness of forceps delivery at a birthing center; The timeliness of Petitioner's transfer of the patient to the hospital; The decision of the Petitioner not to suture the episiotomy before transferring the patient to a hospital and; The apparent lack of justification in the medical records for the course of treatment. It was Dr. Brauner's opinion that Petitioner had provided substandard care and demonstrated poor judgment. The PCP considered Petitioner's case for the second time on November 6, 1990, and had before it for consideration Dr. Brauner's expert opinion, a draft Administrative Complaint and the complete Investigator's file. Additionally, these documents had been forwarded to the PCP members before the meeting. Each of the members indicated that they had received and reviewed these documents before the PCP meeting on November 6, 1990. The Department's attorney, Lynne Quimby-Pennock, discussed the specific facts of the case and reviewed each of he counts that the Department set forth in the draft Administrative Complaint. During the PCP's consideration of Petitioner's case, Chairman Burt repeatedly referred to prior disciplinary proceedings involving the Petitioner. However, the panel members were advised by the PCP attorney, M. Catherine Lannon, that prior disciplinary proceedings were only relevant in the penalty phase. On November 6, 1990, the PCP found probable cause to believe the Petitioner had violated Section 458.331(1), Florida Statutes. The PCP then directed the Department to make the suggested changes to the draft Administrative Complaint and further directed that such Administrative Complaint be issued. A Memorandum Of Finding Of Probable Cause was signed by Chairman Burt indicating that the PCP had probable cause to believe that Petitioner had violated Section 458.331(1)(m),(q),(t),(v), and (w), Florida Statutes: (m) - failing to maintain medical records which justify the course of treatment. (q) - failing to prescribe drugs in an appropriate manner. (t) - failure to practice medicine within the standard of care. - performing professional responsibilities which the licensee knew or had reason to know that he was not competent to perform. - delegating professional responsibilities to a person who the licensee knows is not qualified. On January 28, 1991, the revised Administrative Complaint was reviewed by the PCP. In addition to the revised Administrative Complaint, the PCP had received and reviewed the entire Investigator's file, including all applicable medical records, and the written opinions of experts Dr. Marley and Dr. Brauner. The Department's attorney, Lynne Quimby-Pennock, discussed the specific facts of the case and reviewed each of the counts with the PCP that the Department had set forth in the draft Administrative Complaint. The PCP agreed that the revised Administrative Complaint covered the issues needed to be charged and directed an Administrative Complaint be filed against Petitioner. A Memorandum Of Finding Of Probable Cause was signed by the Chairman indicating that there was probable cause to believe that Petitioner had violated Section 458.331(1)(m),(q),(t),(v), and (w), Florida Statutes, as was found in the November 6, 1990, PCP meeting. The Administrative Complaint was filed on February 6, 1991 and thereafter served upon Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, ORDERED that Petitioner's request for an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, and Section 120.57(1)(b)5., Florida Statutes, is denied. DONE AND ENTERED this 2nd day of November, 1994, in Tallahassee, Florida. WILLIAM R. CAVE 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 2nd day of November, 1994. APPENDIX TO FINAL ORDER, CASE NO. 93-4130F The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner, Proposed Findings of Fact: Proposed findings of fact 1 through 17 are adopted in substance as modified in Findings of Fact 1 through 30 in the Final Order. Proposed findings of fact 17 through 23 are neither material nor relevant. Respondent, Department's Proposed Findings of Fact: 1. Proposed findings of fact 1 through 41 are adopted in substance as modified in Findings of Fact 1 through 30 in the Final Order. COPIES FURNISHED: James W. Linn, Esquire Carson, Linn and Adkins 2873-A Remington Green Circle Tallahassee, Florida 32308 Francesca Phendl, Esquire Agency For Health Care Administration 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 George Stuart, Secretary Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792
