The Issue As stipulated by the parties, the issue to be resolved in this proceeding is whether the Respondent, Harris Corporation, violated Section 760.10, F.S., by intentionally discriminating against Petitioner, James Eckels, on the basis of handicap (AIDS) when it failed to consider or hire the Petitioner for positions for which he applied. (Joint Prehearing Statement filed 1/8/92)
Findings Of Fact Petitioner testified, and Respondent does not contest, that the Petitioner was first diagnosed as having the human immunodeficiency virus (HIV) infection in 1986 and was first diagnosed as having acquired immune deficiency syndrome (AIDS) in 1987. Petitioner became employed by the Respondent, Harris Corporation (Respondent or Harris), in 1984 specifically for the business development function of the VHSIC (very high speed integrated circuits) Operation of its Government Aerospace Systems Division (GASD). GASD is a division of Respondent's Electronic Systems Sector. The purpose of the business development function for the VHSIC operation was to manage the insertion of VHSIC chips and technology into systems level programs. The Petitioner's performance in the VHSIC operation was considered adequate. The VHSIC operation was disbanded when its sponsor, the federal government began to withdraw its support. Petitioner was transferred to GASD's Aircraft Systems Group of business development as a Manager, where he spent his last five months with Respondent. On December 2, 1988, Petitioner was laid off by the Respondent as part of the most extensive reduction-in-force in GASD's history, involving approximately 75 employees division-wide, including a number of key technical personnel. The reduction in force was necessitated by a severe downturn in GASD's business as a result of, among other things, the residual effects of the termination of four major government contracts in late 1987 and the early part of 1988. In the business development area, cuts were made in discretionary expenses, such as advertising, trade shows, etc., but these were still insufficient to meet cost reduction goals in business development. As a result, it was determined that laying off two people from business development would be necessary. Petitioner was selected for layoff because the special VHSIC operation for which he had been specifically hired had been closed and his subsequent assignments were not in the prime market areas which had been determined to be the focus of GASD's near-term business development efforts. The remaining employees in business development were already familiar with, and working with those market areas. Another business development employee was also selected for layoff, but voluntarily left before the reduction-in-force was implemented. Petitioner did not voluntarily leave and sent a letter to Mr. Don Caylor, GASD Manager of Employee Relations expressing his interest in staying at Harris. On January 17, 1989, Petitioner went to GASD and spoke with Mr. Caylor. At that time, the Petitioner requested and was provided an application for long- term disability benefits. There was no discussion of the basis, only that Petitioner's physician had recommended it. Petitioner thereafter submitted the application for long-term disability benefits. Mr. Caylor first became aware of Petitioner's basis for disability claim in February or March 1989. He acquired this knowledge when he was shown the long-term disability application which the Petitioner had filed. Mr. Caylor discussed the HIV-positive status of Petitioner only with Ms. Selwyn Edwards, Director of Human Resources. Respondent's long-term disability program is managed by a third party, Equicor. However, Mr. Caylor was responsible for the benefits function within GASD's human resources group. Ms. Edwards, who has held the position of GASD's Director of Human Resources since 1981, is the most senior Human Resources officer in GASD. Neither Ms. Edwards nor Mr. Caylor discussed Petitioner's condition with Mr. Arthur Kramer, GASD's Employment Manager. The fifteen or so employees in the GASD human relations function have specific, segregated responsibilities. Mr. Caylor has no involvement with the employment process at GASD in general and had no involvement with the Petitioner's February 1990 application in particular. His responsibilities were management of employee relations, addressing conflicts between management and employees, communications, training and development, and the benefits function. The employment process is the responsibility of Mr. Art Kramer, the Employment Manager. Mr. Kramer has been employed by Respondent for over 13 years, has been with GASD for over 12 years, and has held the Employment Manager position since some time after 1984. His responsibilities were to seek applicants to fill GASD's needs, conduct preliminary screening of applicants, and manage the hiring process. On the advice of attorneys that Petitioner had consulted, he submitted an "Application for Professional Employment" to GASD on February 12, 1990. The Application requested consideration for "defense marketing" positions. On February 12, 1990, GASD had two business development openings: one for a Business Development Manager III position for C3I programs (C3I position); and the other for a Business Development Manager IV position for the DOD/Special Systems business area (DOD/Special Systems position). GASD does not give laid-off exempt employees, such as Mr. Eckels, any preferential recall rights or preferential consideration for new openings. GASD receives approximately 200 unsolicited applications and resumes per week. As a result, a preliminary screening procedure has been established to immediately eliminate applicants who do not possess qualifications for available openings. Most receive letters indicating GASD does not have a position suited to the person's background. Mr. Kramer, as Employment Manager for GASD, has the responsibility of conducting this preliminary screening of applications. Mr. Kramer examined Petitioner's resume and application, and determined that he was not qualified for either of the then-current openings. He notified Petitioner of that determination by letter on February 20, 1990. The sole focus of the C3I program was in avionics, as data links for airborne platforms. Up until the last five months of the Petitioner's employment with GASD, his sole experience with Harris had been in the new technology venture of VHSIC. Mr. Kramer knew this, and that it did not include the airborne experience being sought. Further, the Petitioner's resume reflected that Petitioner's most (and most extensive) recent pre-GASD background in research and development centered on such things as equipment for rock excavation, turbine engines, ecological studies, propulsion systems for ships. Mr. Kramer determined that the Petitioner did not have the background required for the position. A number of other candidates whose resumes reflected substantial avionics experience were also not hired for the C3I position. When Petitioner's February 12, 1990 application was submitted, Respondent had already offered the C3I position to a Mr. Ward Shaklee and was in final negotiations with him. A final offer letter had been made in early February 1990. Shaklee accepted the offer and was hired to fill that position. In the C3I business area, GASD specifically planned to exploit its investment in the data links programs for advanced fighters. Mr. Shaklee had been employed for the previous three and one-half years by the Collins Government Avionics Division of Rockwell International. Collins was in the data links business, as a direct competitor of GASD. This meant Mr. Shaklee had the experience and competitor knowledge being sought by GASD. Further, Mr. Shaklee's entire post-military career had been in marketing the type of avionic programs the C3I position was targeting. Finally, he had ten years military experience in the Air Force tactical air command, giving him the firsthand customer knowledge the C3I position required. Thus, Mr. Shaklee's credentials were deemed to be the best match to the Respondent's needs in the C3I business area. The second opening at the time of the Petitioner's application -- the DOD/Special Systems position -- called for "special systems" programs experience, special accesses for these type programs and specialized contacts. As admitted by the Petitioner, these systems are highly secured and classified, involving a community in which the people know one another. Neither the Petitioner's resume nor his application reflect any special systems experience, and the Petitioner admits this. Mr. Kramer made the determination that the Petitioner was not qualified for this opening. The DOD/Special Systems position was filled with a Mr. Chuck McElwee, who was transferred from within GASD. Mr. McElwee had been with Respondent for 14 years and was, most recently, on assignment in the same product line, and had the specialized contacts and special access required for the position. Mr. Kramer was the only person involved in the decision not to further consider Eckels' application for either of C3I or DOD/Special Systems positions. Mr. Kramer did not learn that Petitioner had AIDS until some time after Petitioner filed his Charge of Discrimination with the Florida Commission on Human Relations (FCHR). The FCHR charge is dated February 21, 1990. Petitioner admits that he scrupulously safeguarded the fact of his disability while at Harris, including purchasing AZT medication and other treatment on his own, rather than through the employers' health benefits. Because of this, and because of the organizational detachment of Mr. Kramer's function from that of Caylor, Mr. Kramer did not know Petitioner had AIDS when he screened his applications and determined Petitioner unqualified.
Recommendation Based on the foregoing, it is hereby, recommended that the Florida Commission on Human Relations enter its Final Order dismissing the Petition for Relief. RECOMMENDED this 16th day of March, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1992. COPIES FURNISHED: James R. Eckels 4200 N. Ocean Dr., Ste. A1206 Singer Island, FL 33404 W. Russell Hamilton, III, Esquire Morgan, Lewis & Bockius 5300 Southeast Financial Center 200 S. Biscayne Blvd. Miami, FL 33131-2339 Anne Barrett-Davis Senior Legal Assistant Harris Corporation 1025 West NASA Blvd. Melbourne, FL 32919 Dana Baird, General Counsel Commission on Human Relations Bldg. F, Ste. 240 325 John Knox Rd. Tallahassee, FL 32303-4113 Margaret Jones, Clerk Commission on Human Relations Bldg. F, Ste. 240 325 John Knox Rd. Tallahassee, FL 32303-4113
The Issue The issue in the case is whether the allegations of the Administrative Complaint are correct, and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a licensed certified nursing assistant, holding Florida license number 113243. On or about December 14, 2008, the Petitioner submitted to a drug screening urinalysis test at the request of an employer, Maxim Healthcare Services (Maxim). The sample was collected at a Maxim facility located at University Park, Florida. The Forensic Drug Testing Custody and Control Form and the urine sample collection container bear handwritten dates of December 13, 2008. At some point, the dates on the form and the container were overwritten to indicate that the sample was collected on December 14, 2008. According to the Respondent's Response to the Petitioner's Request for Admissions, the sample was collected on April 14, 2008. The Petitioner presented an expert witness who testified as to the testing procedures, including custody and storage of the urine samples to be tested. The expert witness' testimony regarding sample collection and transportation, calibration of equipment, sample storage and testing methodology, and reporting of test results, was persuasive and has been fully credited. According to the documentation presented by the Petitioner's expert witness, the sample collection container was received by the testing laboratory on December 15, 2008, with all transportation packaging and the sample container seal intact. According to the expert witness, the test for which Maxim paid, screened for ten drugs, including marijuana. According to the expert witness, the testing equipment was properly calibrated at the time the Respondent's urine sample was tested. The initial immunoassay test result indicated the presence of a recognized by-product of marijuana (delta nine tetrahydrocannabinol carboxylic acid) in the Respondent's urine sample. Because the first result was positive, a second test was performed using a gas chromatography/mass spectrometry device, which confirmed the presence of delta nine tetrahydrocannabinol carboxylic acid in the Respondent's urine sample. The Respondent denied using marijuana. The Respondent asserted that the test results were inaccurate. The Respondent testified that he had a prescription for, and was taking, hydrocodone at the time he provided the urine sample for the test at issue in this proceeding, but that the test results did not indicate the presence of hydrocodone. The Respondent asserted that the test result was either the result of lab error or that the sample was not his urine. The Petitioner's expert witness testified that the screening tests purchased by Maxim included limited testing for opiates and would not have indicated the presence of hydrocodone in the Respondent's urine. Although the Respondent testified that he had been told by Maxim personnel that the test results should have revealed the presence of hydrocodone, the Respondent's testimony in this regard was uncorroborated hearsay and was insufficient to support a finding of fact. Although the Respondent asserted that the sample tested was either not his urine or was otherwise tampered with, the evidence failed to support the assertion. There was no evidence that the sample was tampered with in any manner when the sample was obtained or during transportation to the testing laboratory. There was no evidence that the seal on the sample collection container was not intact at the time the sample was provided or transported. There was no evidence that the sample was stored improperly. There was no evidence that the testing equipment was not properly calibrated or that the tests were improperly performed. The Respondent testified, without contradiction, that over the course of 20 years in nursing work both before and after the tests at issue in this proceeding, his test results have never reported the presence of marijuana.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order assessing a fine of $250, requiring completion of an IPN evaluation, and imposing a 12-month period of probation. DONE AND ENTERED this 31st day of March, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2009. COPIES FURNISHED: Dr. Ana M. Viamonte Ros, Secretary State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A-00 Tallahassee, Florida 32399-1701 Rick Garcia, MS, RN, CCM Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-1701 Patricia Dittman, Ph.D(C), RN, CDE Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Megan M. Blancho, Esquire Carla Schell, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Michael N. Heimur, C.N.A. 4901 South Salford Boulevard North Port, Florida 34287
The Issue The issue is whether Dr. Namen is entitled to a re-grading of the score which he received on the written clinical portion of the podiatry examination given in Orlando in July 1990.
Findings Of Fact Dr. Namen is a candidate for licensure as a podiatrist and sat for the clinical portion of the podiatry examination administered in Orlando in July 1990. At the time of the final hearing, Dr. Namen challenged the Department's grading of his answers to questions 3, 47, 118, and 145. At the final hearing, the expert for the Department, Dr. Warren Simmonds, agreed with Dr. Namen that the challenges to the grading of questions 3 and 118 had merit. Dr. Namen's score was increased so that Dr. Namen would be entitled to a passing score if the answers he gave to either of the two remaining questions under challenge, questions 47 and 145, were correct. Question 145 is based on case history #50, concerning a patient with a painful left ankle. Although the case history does not state directly that the joint is inflamed, it does state that "the joint is slightly warm" which is an indication of the presence of inflammation, which is confirmed by the patient's report of pain in the joint. Question 145 asked which of a number of possible treatments was the "least indicated (emphasis in original)." Dr. Simmonds testified that the answer chosen by the Board, "systemic adrenal corticosteroid therapy," was the least indicated treatment because of the side effects of steroids. Dr. Simmonds believes that steroids should not be used unless there is some acute inflammatory reaction which needs to be controlled. The best treatment, or the treatment of choice, is a non-steroidal anti-inflammatory drug. Dr. Namen contends Tylanol is the least indicated treatment because all available choices other than Tylanol were anti-inflammatory drugs, and the case history provides an indication of inflammation. Tylanol relives pain but has no anti-inflammatory effect, and is therefore the least appropriate treatment. The question stem is somewhat unusual because it asks the candidate for the "least indicated" treatment. Since Tylanol has no anti-inflammatory effect at all, Dr. Namen's testimony was persuasive that the "least indicated" treatment was Tylanol. Among the remaining choices, systemic adrenal corticosteroid therapy is the least appropriate among that group, but all answers within that group are better answers than administration of Tylanol. Question 47 is based on case history 19 concerning the appropriate dose of anesthetics to be used in a procedure for the removal of toe nails on a 58- year-old, Caucasian male weighing 150 pounds. The case history states that a certain combination of two anesthetics was used, bupivicaine and lidocaine. The question asks "how close to toxic dose would use of the entire amount bring the patient." The Department's answer was that the stated dose would be within 96 percent of a toxic dose; Dr. Namen believed that the use of the anesthetics in the amounts stated would bring the patient only within 66 percent of a toxic dose. The crux of the question is whether the toxicities for the two anesthetics interact in such a way that their toxicities must be added, or whether the correct answer involves only the calculation of the toxicity of the drug with the higher level of toxicity. On balance, the Department's answer is the most persuasive. The article in the Journal of Anesthesiology written by deJong and Bonin concludes, based upon their research which is described in the article, that local anesthetic toxicity for lidocaine and bupivicaine are essentially additive. The letter from Dr. Orta only states that the administration of both the lidocaine and bupivicaine at the doses described in the question are "well below toxic level." This observation does not answer the question posed, which is just how far below the toxic level use of the mixture stated would bring the patient. The letter from Dr. Padron, also a board certified anesthesiologist offered by Dr. Namen, says that "studies on compounding local anesthetics were done in animals and it was found that the toxicity was synergistic rather than additive," but no study was offered in evidence. The study in the Journal of Anesthesiology the Department offered into evidence is to the contrary. The evidence based on actual research is more persuasive. Dr. David's letter only reports in a hearsay fashion the opinion of an unidentified pharmacologist, and is entitled to little weight.
Recommendation It is therefore, RECOMMENDED that a final order be entered by the Department of Professional Regulation raising Dr. Namen's score, and designating him as having successfully completed the examination in clinical podiatry. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of April 1992. WILLIAM R. DORSEY, JR. 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 1st day of April 1992.
Findings Of Fact On or about August 15, 1988, Respondent received a complaint from Walt Disney World questioning the "type[,] frequency and cost" of treatment that Petitioner was providing to a patient. Petitioner is employed as a physician by the Central Florida Health Center and was providing treatment to the patientin response to allergic-type complaints. As the letter acknowledges, Walt Disney World had denied the patient's claim for Workers Compensation benefits. By December 11, 1989, Respondent's investigator had completed an final investigative report on the matter. The cover sheet of the report notes that Petitioner had not responded to the charges as of December 4, 1989. The cover sheet also notes that the Social Security Administration had determined, by decision dated September 9, 1989, that the patient had suffered a "disability" since July 22, 1987. The cover sheet cites from the decision as follows: "the medical evidence establishes that the claimant has respiratory allergies, especially to molds . . ." and "the claimant's allegations of respiratory distress, nausea, anxiousness, rapid heartbeat, confusion, headaches, and loss of coordination and strength are supported by the objective and clinical laboratory findings of record and are credible." Summarizing an interview on October 26, 1989, with the manager of another allergy clinic in the Orlando area, the investigative report states that the manager stated that fee schedule for the Central Florida Health Center listed fees for patient evaluation that were "high" and for interdermal tests that were "excessive." The investigative file accompanying the investigative report contains numerous documents relating to the patient and his diagnoses and treatments. One document appears to be an independent medical examination referenced by WaltDisney World in its letter to Respondent dated August 15, 1988. By letter dated May 16, 1988, Richard F. Lockey, M.D., of the Allergy, Asthma and Immunology Associates of Tampa Bay, reported the results of his examination of the patient on April 5 and 22, 1988. Dr. Lockey found that the patient "does not have nor suffer from any allergic disease." Dr. Lockey found, among other diagnoses, "vasomotor rhinitis with possible allergic rhinitis." Expressly disagreeing with Petitioner's "impression that [the patient] has multiple problems secondary to his environment at Disneyworld," Dr. Lockey recommended that the patient could return to work without hazard to his health and needed psychiatric counselling to reassure him that he is physically healthy. Dr. Lockey's letter accompanies a complete history that he took of the patient. By letter dated December 1, 1989, and also contained in the investigative file, Diane S. Storey, D.O., employed with Petitioner at the Central Florida Health Center, explained why the only appropriate treatment for the patient was immunotherapy for long-term exposure to mold byproducts. The letter refers to the corroborating opinion of Douglas H. Sandberg, M.D. Dr. Sandberg's undated report, which is also contained in the investigative file, includes a comprehensive history. Dr. Sandberg, who is a Professor of Pediatrics and Director of the Division of Gastroenterology and Nutrition at the University of Miami Children's Hospital Center, concludes thatPetitioner has "an excellent grasp of [the patient's] overall problems and should be able to help him significantly and to have him back to work in a few weeks." The letter also states: "Testing and treatment with [Petitioner] has shown that [the patient] does have environmentally triggered illness or complex allergy." By memorandum to the probable cause panel dated February 23, 1990, Respondent noted the allegations that Petitioner violated Section 458.331(1)(t) and (n). The memorandum recommends that the case is "legally sufficient and should be reviewed by an expert to determine whether [Petitioner] operated within the standard of care, if there is a pattern of excessive and unnecessary testing and if he over-charged for his services." The probable cause panel agreed to refer the file to an expert. By letter dated June 18, 1990, Respondent requested Michael P. Pacin, M.D., to offer an expert opinion as to several questions concerning Petitioner's diagnosis and treatment of the patient. Respondent gave Dr. Pacin the entire investigative file to review. By letter dated September 13, 1990, Dr. Pacin, who is a board- certified internist and immunologist, noted the differing opinions of Drs. Lockey and Sandberg. The letter states: there can be more than one opinion regarding treating allergy patients. Dr. Lockey was trained in the same manner as I was, and I agree almost completely with everything thathe has said regarding [the patient's] treatment. On the other hand, Dr. Sandberg's views are quite contrary to mine, although they are along the lines of those which [Petitioner] has followed. [Petitioner] and Dr. Sandberg practice what is known as environmental medicine, a field which is quite controversial and not very well substantiated in the medical literature. I believe [the patient] is a very sick man; however, I do not believe, based upon the information given to me, that much of his problem is due to allergy. Most of the testing and treatment provided to him by [Petitioner] was probably unnecessary, but what surprises me is the fact that [Petitioner] is a psychiatrist who practices allergy and seems possibly to have misdiagnosed a patient with a psychiatric problem as having an allergy problem. The letter describes environmental medicine, which Petitioner practices, as a very unsubstantiated theory. These patients, as in the case of [the patient], have very subjective symptoms, some of which can be explained by other medical problems and some of which cannot be explained medically but are quite real to the patient and do, indeed, contribute to their disability. It is quite hard to define what makes them ill and to know how to treat them. Responding to the specific questions asked, the letter states: I do not feel that the [patient's] condition was adequately assessed. Based upon Dr. Lockey's assessment, I, too, feel that the [patient] is suffering from multiple psychiatric problems and that any allergy problems he has are minimal and not contributing to his overall problem. . . . I believe [Petitioner] did not treat the patient in an appropriate manner--i.e., all of the allergy testing and treatment was probably not necessary, and even if they were, they were far in excess of what would be appropriate for a patient who did haveallergy problems. . . . I do believe [the insurance company was] exploited for financial gain by [Petitioner]. Even though [Petitioner] has continued to provide medical care to the patient at no cost, I think this is only being done to cover up the exploitation that has preceded it. . . . I do not believe that [written medical records kept by Petitioner] justify the course of treatment of the patient. The test results were far from conclusive, especially based on the patient's history, to warrant such an extensive treatment regime for allergies. Dr. Pacin's letter responds to the concluding question posed by Respondent's letter as follows: [Petitioner] did not meet the "standard of care" as I and my colleagues practice allergy. I believe his diagnosis was wrong and the treatment, therefore, also was wrong. I believe the treatment would have been wrong even if the diagnosis had been correct, as it was overdone and the patient was being exploited for financial gain. This patient may have had some minimal allergy problems; however, he needs a complete psychiatric evaluation to better have an idea [sic] of what his true medical problems are. The fact that [Petitioner] is a psychiatrist tells me that this case should also be evaluated by a psychiatrist to see if he meets the "standard of care" in the field of psychiatry. It seems that [Petitioner] has missed the psychiatric diagnosis or possibly is treating the patient for allergies because that diagnosis gave him the opportunity to charge for services which would provide a greater cash flow. The only justification that I could find for [Petitioner's] deviating from the standard of care was the fact that another, rather eminent physician agreed with his diagnosis and treatment. However, as I stated above, this is due to the fact that Dr. Sandberg, as well as [Petitioner], seemed to be practicing in the very controversial field known as clinical ecology [also known as environmental medicine]. By letter dated January 30, 1991, Respondentrequested Dr. Pacin to elaborate upon: those factors which lead you to believe that the patient was suffering from multiple psychiatric problems and that any allergy problems were minimal[;] . . . which tests and treatment performed by [Petitioner] were either unnecessary or "far in excess of what would be appropriate for a patient who did have allergy problems"[;] . . . which medications were inappropriate for this patient and whether the quantities given were also inappropriate[; and] . . . what test results would have justified this treatment and . . . [what] tests not performed by [Petitioner] . . . could have definitely established if the patient was actually suffering from these allergies? By letter dated February 12, 1991, Dr. Pacin responded to these questions. The letter states that he could not say that the patient's symptoms were psychiatric and had thus recommended a psychiatric evaluation. Dr. Pacin explained that he had based his finding of "excess treatment" upon the billings and services that he had reviewed. The letter states that the patient did not suffer from sufficiently severe allergy problems to warrant immunotherapy. As to the last question, Dr. Pacin opined that "missing symptoms," not missing test results, failed to "warrant allergy testing and allergy immunotherapy." The case was considered by the probable cause panel on May 4, 1991, with a recommendation from Respondent that probable cause be found. Respondent's attorney adequately summarized Dr. Pacin's findings. Expressly relying upon Dr. Pacin's report, one panel member moved to find probable cause and file an Administrative Complaint alleging violations of 458.331(1)(t), (m), and (n). The panel approved the motionunanimously. Pursuant to the probable cause finding, Respondent filed an Administrative Complaint on May 16, 1991, in DOAH Case No. 91-4068. Corresponding to the violations cited by the probable cause panel, the Administrative Complaint alleges that Petitioner failed to practice medicine in accordance with a reasonable standard of care due to the misdiagnosis of a patient, failed to keep medical records justifying the course of treatment of a patient, and exploited a patient for financial gain. On November 6, 1991, Respondent filed a Notice of Voluntary Dismissal, and DOAH Case No. 91-4068 was closed by Order Closing File entered November 13, 1991. The opinion of Dr. Pacin adequately addressed the differing schools and training of Petitioner and Dr. Sandberg, on the one hand, and Drs. Lockey and Pacin, on the other hand. After doing so, Dr. Pacin identified clearly and unequivocally what he opined were deficiencies in Petitioner's diagnosis and, in particular, treatment of the patient. There was a reasonable basis for Dr. Pacin's opinions. Other evidence existed concerning the possible unreasonableness of the fee schedule. Although Respondent might anticipate some difficulty overcoming by clear and convincing evidence what may be a legitimate difference of professional opinion concerning diagnosis and treatment, Respondent had a reasonable basis in law and fact for filing the Administrative Complaint.
The Issue The issues to be determined in this proceeding are whether Respondent, John L. Lentz, Jr., M.D., committed the disciplinary violations charged with respect to seven patients in three Administrative Complaints that have been consolidated for the purpose of hearing. If the facts demonstrate that any of the charged violations have been committed, then the appropriate penalty to be imposed for such violations must be recommended.
Findings Of Fact Based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding, the following findings of fact are made: Petitioner is the state agency charged with the licensing and regulation of the practice of medicine pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. At all times material to these proceedings, Respondent was a licensed physician in the State of Florida, having been issued license number ME 82437. Respondent’s address of record is 15200 Emerald Coast Parkway, St. Marten Unit 506, Destin, Florida 32541. Respondent was board-certified by the Academy of Family Physicians until 2009. He currently holds no board certification in any specialty area, and did not complete any residency other than his residency in family medicine. Respondent went to medical school at the University of South Carolina and initially practiced in that state. He moved to Florida in 2001 and since that time, has worked in a variety of practice settings, including working as an emergency room physician in several hospitals in areas such as Phenix City, Alabama; Panama City, Florida; and Defuniak Springs, Florida. At some point, Respondent became interested in the diagnosis and treatment of Lyme disease, and in approximately 2007, he opened a clinic in Destin named the Lentz Lyme Clinic. Respondent attended four continuing medical education courses that focused on the diagnosis and treatment of Lyme disease. Each of the courses he attended was three to four days long. Diagnosis and Treatment of Lyme Disease Lyme disease is an infectious disease caused by the bacteria Borrelia burgdorferi. Lyme disease is typically transmitted by a tick bite from what is often referred to as a deer tick, more formally known as the Ixodes scapularis tick. The tick is usually very small, and must remain on the person’s skin for approximately 36 hours or more in order for the disease to be transmitted. Lyme disease is generally considered to be endemic to the Northeastern United States, in states such as the New England states, Pennsylvania, upstate New York, Delaware, and northern Virginia. While it is not impossible to contract Lyme disease in Florida, the more persuasive evidence established that it is not prevalent in this state. The most credible, compelling evidence presented established that most people who are diagnosed in Florida with Lyme disease were most likely infected while traveling in a part of the country that is endemic for the disease, and that states in the Southeastern United States are in a low-risk area for Lyme disease. There was some conflict in the testimony concerning the stages and symptoms of Lyme disease, and what factors should be considered in diagnosing the disease at the various stages. The more credible and persuasive descriptions of Lyme disease and its stages describe the disease as having three stages: early localized Lyme disease; early disseminated Lyme disease; and late Lyme disease. The probable stage of the disease at the time a patient presents for diagnosis and treatment determines what is necessary for a diagnosis. Early localized Lyme disease is the disease as it typically presents within the first four weeks of the tick bite. The patient often, but not always, presents with a rash called an erythema migrans, which is generally over five centimeters wide (and can be as large as 19 centimeters) and is sometimes clear in the center, leading to the term “bull’s-eye rash” to describe it. In addition to the erythema migrans, a patient may present with virus-like symptoms, such as fatigue, malaise, fever, chills, myalgia (muscle aches), and/or headache. Often the symptoms at this stage, or any stage, for that matter, are non-specific symptoms that are common to a variety of conditions, including ALS and MS. According to Respondent’s expert, Dr. Cichon, these are conditions that a physician should also consider when diagnosing Lyme disease, Babesiosis, or Bartonellosis. In other words, when a patient presents with symptoms that do not include the erythema migrans, but are vague and non-specific, Lyme disease and co-infections related to Lyme disease should not be the only diagnoses considered. In order to diagnose Lyme disease a thorough history is required, including information on a patient’s travel locations, whether travel included states that are typically endemic for Lyme disease; the time of year the travel occurred; whether the patient engaged in the type of activity (such as hunting, fishing, hiking, or other outdoor activities) that would expose him or her to the possibility of a tick bite; any history of rashes; and whether the patient remembers a tick bite. The history should also include any symptoms the patient is experiencing and when the symptoms began. If the patient reports travel to an endemic area, and presents with an erythema migrans that the physician can examine, a diagnosis of early Lyme disease can be made without confirmatory laboratory tests. At that early stage, laboratory tests would not be particularly useful because they detect antibodies to the Borrelia burgdorferi, as opposed to detecting the bacteria itself. At that early stage of the disease, there is not sufficient time for the body to develop the antibodies necessary for detection through laboratory testing. The second stage of Lyme disease is called early disseminated Lyme disease, which may be characterized by multiple erythema migrans lesions; cardiac symptoms, such as atrioventricular block; arthralgia (joint pain); myalgia; or neurologic involvement, such as lymphocytic meningitis, facial nerve Palsy (Bell’s palsy), or encephalitis. If a patient presents with some combination of these symptoms, along with a history indicating travel to an endemic area and activities in that area consistent with tick exposure, a reasonable prudent physician would seek confirmatory laboratory tests to reach a diagnosis of Lyme disease, assuming the patient presents four weeks or more after possible exposure to a tick bite. The type of test to use is discussed below. Late Lyme disease is characterized by neurological symptoms, such as encephalomyelitis, peripheral neuropathy; and arthritis and arthralgia, usually in a single joint, such as a knee. As with early disseminated Lyme disease, a thorough history and physical is required for a diagnosis, as well as a confirmatory laboratory test. There was a great deal of testimony presented regarding the type of testing that is appropriate for the diagnosis of Lyme disease. Petitioner advocated the use of the ELISA test, followed by the Western blot test, commonly referred to as the two-tiered approach. ELISA and Western blot will be discussed in more detail below. Respondent contends that this two-tiered approach is inaccurate and that other tests are more definitive. His argument regarding the testing to use is consistent with his claim that there are two “standards of care,” one recognized by the Infectious Disease Society of America (IDSA), and one recognized by the International Lyme and Associated Diseases Society (ILADS). The tests recognized as standard for diagnosis of Lyme disease by Drs. Robbins, Anastasio, Robertson, Rosenstock, and Powers, are the two-tiered approach ELISA and Western blot tests. The ELISA is an enzyme-linked immunosorbent assay screening test. If the screening test is positive or equivocal for enzymes indicative of Lyme disease, a Lyme Western blot test is performed to confirm the presence of antibodies to Borrelia burgdorferi. For patients with early Lyme disease, the two-tier testing process may produce false negatives because the patient has not had sufficient time to develop antibodies in response to the bacteria. For those with late Lyme disease, the test is highly sensitive and specific because late Lyme disease patients have ample time to develop antibodies. The two-step approach is recommended by the Centers for Disease Control (CDC) because it provides for both sensitivity and specificity. Usually lab tests are either sensitive or specific, but not both. For a test to be considered “sensitive,” there are no false negatives. ELISA is considered a sensitive test. Specificity refers to the specific antibody bands being evaluated. With Western blot, there is an examination of different specific antibody bands. A Western blot IgM test looks for antibodies that are created initially from white blood cells that specifically attach to the infectious organism. A Western blot IgG looks for a different set of antibodies that continue to persist long after the infection is gone. A Western blot IgG is considered positive if five of the ten antibody bands are positive, while an IgM is considered positive if two of three bands are positive. The ILADS guidelines criticize use of the ELISA and Western blot tests because in the organization’s view, the two- tiered testing lacks sensitivity. The guidelines state that several studies “showed that sensitivity and specificity for both the IgM and IgG western blot range from 92 to 96% when only two [as opposed to five] specific bands are positive.”2/ While the ILADS guidelines criticize the two-tiered approach represented by ELISA and Western blot and indicate that other testing has been evaluated, “each has advantages and disadvantages in terms of convenience, cost, assay standardization, availability and reliability.” The ILADS guidelines do not expressly advocate not using the ELISA and Western blot, and note that while other tests remain an option to identify people “at high risk for persistent, recurrent, and refractory Lyme disease,” the tests have not been standardized. Dr. Michael Cichon, testifying for Respondent, opined that the ELISA and Western blot tests had little value and that Respondent’s failure to use them was not a departure from the standard of care. However, while at hearing he denied that he would order either test, in his deposition he indicated that he would order both tests, as a guide to diagnosis. His testimony that the ELISA and Western blot tests are not useful in the diagnosis of Lyme disease is rejected as not credible. Clear and convincing evidence at hearing established that a reasonable, prudent physician who is presented with a patient having possible exposure to Lyme disease occurring four weeks or more before seeing the physician would order the two- tier testing of ELISA and Western blot if it was appropriate to test for Lyme disease. While performing other tests in conjunction with the two-tier tests is not per se a departure, the standard of care requires either ordering the ELISA and where necessary, the Western blot, or reviewing any test results for these tests previously obtained by the patient. Treatment of Lyme disease also depends on the stage at which the condition is diagnosed. If a patient is diagnosed with early localized Lyme disease, a single course of doxycycline for 14 to 28 days is generally appropriate. Early disseminated Lyme disease and late Lyme disease may be treated with IV antibiotics, for a similar period of time. In summary, the standard of care in the diagnosis and treatment of Lyme disease requires a physician to take an appropriate medical history, perform a physical examination, obtain objective laboratory test results in the absence of an erythema migrans rash, and refer patients who do not improve after an initial course of antibiotic treatment to an infectious disease specialist for further evaluation. An appropriate history must include the information described in paragraph nine, and the testing to be ordered should include an ELISA and, where positive or equivocal, a Western blot test. Diagnosis and Treatment of Babesiosis Babesiosis is a parasitic disease of the blood caused by infection with Babesia. Babesiosis, like Lyme disease, is typically transmitted by a tick bite, and can be transmitted by the same tick that carries Lyme disease. There are occasions when a patient properly diagnosed with Lyme disease also will have Babesiosis as a co-infection. It is, however, not a common diagnosis, and even infectious disease specialists may go an entire career without diagnosing it. If a family practice physician suspects Babesiosis, the better approach would be to refer the patient to an infectious disease specialist. However, failure to refer a patient to a specialist, assuming that the family physician performs the appropriate testing and treatment, is not necessarily a departure from the standard of care. At all times material to the allegations in the Administrative Complaints, the standard of care for the diagnosis and treatment of Babesiosis included the physician taking an appropriate medical history, performing a physical examination of the patient, and obtaining objective laboratory test results in order to make an evidence-based diagnosis. As with Lyme disease, the patient’s medical history should contain information regarding the patient’s travel; whether they had exposure to a tick bite; whether they recall being bitten by a tick; as well as what symptoms the patient is experiencing. Babesiosis typically presents with virus-like symptoms, fever, sweats, and the identification of Babesia parasites in the patient’s blood. The tests that a reasonably prudent similar physician would order to determine whether a patient had Babesiosis are either a blood smear to identify Babesial parasites or a polymerase chain reaction (PCR) amplification of Babesial DNA. Should a patient be diagnosed with Babesiosis, the normal and customary treatment is a ten-day course of clindamycin and atovaquone. Diagnosis and Treatment of Bartonellosis Bartonellosis is an infectious disease caused by bacteria of the genus Bartonella. It is generally transmitted by lice or fleas on a person’s body, coming off of other animals, such as rats. It also can be transmitted through a cat scratch, as the cat gets fleas under its claws by scratching itself. As is the case with Babesiosis, a family practice physician is unlikely to diagnose Bartonellosis. It is not a common diagnosis, and even infectious disease specialists may go an entire career without diagnosing it. If a family practice physician suspects Bartonellosis, the better approach would be to refer the patient to an infectious disease specialist. However, failure to refer a patient to a specialist, assuming that the family physician performs the appropriate testing and treatment, is not necessarily a departure from the standard of care. In order to make a diagnosis, a thorough history and physical is required, along with objective laboratory test results. A physician should inquire about exposure to animals that could carry fleas, ticks, or lice, and whether there had been any recent instances where the patient has been scratched by a cat. The symptoms of Bartonellosis are nonspecific and include fever, headaches, myalgia, and arthralgia. The generally accepted test used to confirm a diagnosis of Bartonellosis would be a PCR amplification of Bartonella DNA, or paired blood serologies. DOAH Case No. 15-2888PL; DOH Case No. 2011-15106 (Patient C.C.) From approximately September 28, 2010, through approximately February 28, 2012, Respondent provided medical care and treatment to patient C.C. At the time of her original presentation to Respondent, C.C. was 27 years old. Prior to seeing Dr. Lentz, C.C. had a series of orthopedic injuries. For example, in 1998, C.C. was involved in a serious car accident, resulting in multiple broken bones and internal injuries requiring a two-week stay in the hospital. C.C. joined the Air Force in 2006, where she served as an aircraft mechanic. During basic training she suffered an injury to her shoulder, which caused problems with her neck, back, and shoulder. While in the military, C.C. was involved in two additional accidents: she broke her wrist in a motorcycle accident at some point, and on March 31, 2009, she had a second accident where the car she was driving was struck by another vehicle. While C.C. denied any injuries as a result of this second accident, shortly thereafter in July 2009, she had neck surgery because of discs impinging on the nerves in her neck. C.C.’s work as an aircraft mechanic required her to work in the fuel tanks of an airplane, which is a very confined space. C.C. is approximately 5’10” tall, and the work she performed required her to become contorted in a very small space for approximately 13 hours at a time. After her neck surgery, she started having increasing amounts of pain in her back and hips, to the point where she could no longer perform her job duties and in August of 2010, resorted to a wheelchair because of her inability to walk. Although she consulted multiple doctors both in the military and through referrals to outside physicians, she did not discover the cause of her pain. On or about September 28, 2010, Respondent evaluated C.C. for complaints of severe back, buttock, and right leg pain. When she presented for her first office visit, Dr. Lentz’s review of symptoms indicated that C.C. had a frontal headache with pain at a level of 10 out of 10; sensitivity to light and sound; loss of hearing and buzzing; nausea but no vomiting; withdrawal symptoms described as sweats when she did not take Ultram or Lortab; and feelings of hopelessness and emotional lability. His physical examination reported that C.C. was in a wheelchair, and documented “soles of feet painful, SKIN: rashes, soles of feet red, NEURO: paresthesia, pain, tender extremity.” At that time, Respondent diagnosed C.C. as having chronic fatigue syndrome and chronic pain syndrome. In C.C.’s history, Respondent noted that she “grew up in Texas/Arkansas-hunting, forests, etc. There is no notation of recent travel on this first visit. Dr. Lentz asked her about any flu-like symptoms, which she denied having. Many of the symptoms listed by C.C. are general symptoms that are common to a variety of ailments. Respondent, however, focused only on chronic fatigue, chronic pain, Lyme disease, Babesiosis, and lupus. On this first office visit, Respondent prescribed CD57, C3a, C4a, and eosinophilic cationic protein (ECP) laboratory tests of C.C.’s blood. With respect to the order for CD57, Respondent listed Lyme disease as a diagnosis. For the C4a and C3a, he listed Lyme disease and Lupus as the diagnoses, and for the ECP he listed a diagnosis of Babesia infection. Respondent did not prescribe an immunoassay (ELISA) test or Western blot test for Borrelia burgdorferi for C.C. The ECP test result for C.C. collected on October 6, 2010, was 20.8. The reference range for a normal test result is 1-10. The notation for the test on the lab result states: This test uses a kit/reagent designated by the manufacturer as for research use, not for clinical use. The performance characteristics of this test have been validated by Advanced Diagnostic Laboratories at National Jewish Health. It has not been cleared or approved by the US Food and Drug Administration. The results are not intended to be used as the sole means for clinical diagnosis or patient management decisions. On or about October 15, 2010, Respondent diagnosed C.C. with Lyme disease. He based his diagnosis of Lyme disease on the results of the CD57 blood test. The CD57 test is a cluster designation test that measures a marker found on lymphocytes, which are a type of white blood cell that are sometimes referred to as natural killer cells. Although Respondent claimed at hearing that he did not consider the test to be definitive, in his deposition he indicated that he believed that it was in fact definitive. Dr. Cichon, on the other hand, testified that the CD57 test used by Dr. Lentz is not a definitive test for Lyme disease, but is useful for measuring the progress of treatment. At least one test result for C.C. reflecting the results for a CD57 panel has the following notation from the laboratory: This test was developed and its performance characteristics determined by Labcorp. It has not been cleared or approved by the Food and Drug Administration. The FDA has determined that such clearance or approval is not necessary. Results of this test are for investigational purposes only. The result should not be used as a diagnostic procedure without confirmation of the diagnosis by another medically established diagnostic product or procedure. On or about October 15, 2010, Respondent also diagnosed C.C. with Babesiosis. Respondent did not prescribe a blood smear examination for Babesial parasites or PCR amplification for Babesial DNA for C.C. He based his diagnosis on the ECP test. On October 15, 2010, Dr. Lentz received an e-mail from C.C.’s roommate, M.B., informing him that C.C. had visited the emergency room over the weekend because of the level of her pain. The e-mail asked whether C.C. could begin with her treatment before her next appointment. In response, Dr. Lentz called in prescriptions for doxycycline and Cleocin, both of which are oral antibiotics. On or about October 18, 2010, Respondent described C.C. as being in no acute distress, with a gait that is within normal limits. He also noted some wheezing, pain all over, tears, and cramps in her muscles. Respondent prescribed long-term IV antibiotic therapy and referred C.C. to a specialist for venous port placement for the administration of intravenous (IV) antibiotic therapy. The specific medications prescribed at this visit are acetaminophen-oxycodone 300 mg - 7.5 mg oral tablets to be taken three times daily; Cymbalta 30 mg oral, once a day; Flagyl 500 mg oral tablets, to be taken three weeks on, one week off; heparin 5000 units/ml injectable solution, once a day; Omnicef 300 mg oral capsules, once a day; Interfase Plus Prothera, a supplement; and boluoke lumbrokinase, also a supplement. At the October 18, 2010, visit, he also ordered a Fry test for Bartonellosis and prescribed intravenous vancomycin, with weekly vancomycin trough levels. Dr. Lentz testified at hearing that the prescription for vancomycin was to treat Bartonellosis.3/ However, at this juncture, no diagnosis for Bartonellosis had been made. Heparin is an anticoagulant that is used for a variety of issues, such as blood clots, pulmonary emboli, and Berko emboli. It is also used in coronary heart disease if a patient has a myocardial infarction. The more persuasive and credible testimony established that it was below the standard of care to use heparin in the treatment of Lyme disease, Babesiosis, or Bartonellosis. Not only did heparin have no efficacy, it had the potential to be very dangerous for C.C., or any other patient. On October 28, 2010, Respondent noted that the vancomycin was at 1.5 grams and still not therapeutic, and ordered that the medication be changed to Primaxin and that the Omnicef and vancomycin troughs be stopped. On November 10, 2010, Respondent noted that C.C. was experiencing flu-like symptoms, but was now resting fewer hours each day. For the first time, he noted “past 4 years in military=Virginia, Canada, Honduras, as sites for exposure to Lyme.” He also noted “no wheelchair, but slow to move, pain to rt LS-hip-leg.” He continued to list her diagnoses as Lyme disease, Babesiosis, chronic pain syndrome, and chronic fatigue syndrome. Respondent also saw C.C. in the office on December 8, 2010, and January 10, 2011. At the December 8, 2010, visit, he discontinued the use of Flagyl because of her nausea and switched to Tindamax (one tablet daily for three weeks, then off one week) instead. On January 19, 2011, Dr. Lentz received an e-mail from C.C.’s roommate regarding a fall C.C. had over the weekend. As a result, he wrote an e-mail to C.C. and told her to stop the Tindamax and “add the neurotoxins to remove the neurologic toxins that are being created by the antibiotics.” He also directed her to stop the heparin injections, as she needed to be off of heparin before having some hand surgery to remove a cyst. C.C. returned for an office visit on February 9, 2011. At that time, Respondent’s notes indicate that she was ambulatory but still significantly fatigued and still falling. He noted, “rt hip. sciatic nerve still #1 symptom, can not stand or walk for long periods of time, not sure if neurologic/Lyme or degenerative nerve dis.” In his assessment, he stated she “needs CT lumbar sacrum to r/o orthopedic issue with back pain.” During the course of treatment, Respondent was consistently prescribing OxyContin at 10 mg, three times daily. On March 16, 2011, he referred C.C. to Dr. Beach at Andrews Institute to detox off the OxyContin. He also noted that she had been given 100 percent disability through the military, and would take approximately four months to process out of the military. He also noted “electrical ablation at T9, T10 for chronic back pain per Dr. Nyguen.” Dr. Lentz continued to see C.C. on April 12, 2011; May 4, 2011; and May 13, 2011. Throughout her treatment with IV antibiotics, C.C. experienced problems with nausea, rashes, and diarrhea, but claims that over time, her symptoms began to improve so that she could walk and eventually was able to hold down part-time employment. Toward the end of her military tenure, C.C. needed a referral in order to continue to see Dr. Lentz. To that end, on June 8, 2011, she saw Dr. Janelle Robertson, M.D., a board certified infectious disease specialist at Eglin Air Force Base. Dr. Robertson evaluated C.C. for Lyme disease, and documented her history, including travel history and history of tick bites. She reviewed prior records from Eglin Air Force base that indicated C.C. had an ELISA screening on June 10, 2010 (approximately two and a half months before seeing Dr. Lentz), that was negative. The ELISA test was not only performed before C.C. saw Dr. Lentz, but well after C.C. began suffering the symptoms that led her to seek out Dr. Lentz. Accordingly, the ELISA test was administered at a time at which C.C. would have developed sufficient antibodies for the test to be useful. Dr. Robertson also noted that while C.C. had a history of tick bites in Florida, Texas, and Alabama, she did not report any rashes or illness at or near the time of the tick bites. She also had no history of migratory arthralgia or Bell’s palsy. Dr. Robertson testified credibly that C.C. was having no night sweats, weight loss, changes in vision, palpitations, difficulty breathing, or gastrointestinal problems, and that her primary complaint was back and hip pain. C.C.’s pain remained in the same locations and persisted without resolution since 2009. Dr. Robertson concluded that C.C. did not have Lyme disease, and that her prior negative ELISA test conclusively established that she did not have the disease. She opined that, given that C.C.’s symptoms had persisted since 2009, if she had actually had Lyme disease, she would have developed antibodies that would have been detected with the ELISA test. She also determined that Respondent did not have Babesiosis and recommended to C.C. that she immediately stop the therapy prescribed by Dr. Lentz, because in Dr. Robertson’s view, the therapy was unsafe. C.C. has since transitioned out of the military into civilian life. Although she believes that the treatment by Dr. Lentz was effective in treating her condition, the events since she stopped treatment for Lyme disease suggest otherwise. For example, C.C. testified in her deposition that her treatment ended in mid-May 2011 because Dr. Lentz determined that she did not need more treatment, yet it appears that the military would no longer authorize treatment by Dr. Lentz once C.C. saw Dr. Robertson. Moreover, she continues to have some of the same pain that led her to treatment with Dr. Lentz. In approximately October 2014, she had hip surgery because her “hips are pretty much shot.” She has had three surgeries for kidney stones, steroid injections for temporary relief from her back pain, and acupuncture treatments for her back pain. At least one physician attributed her problem to the kind of work she performed as an aircraft mechanic, and at deposition she indicated that a recent MRI indicated that she has some lumbar narrowing. In short, it appears that the months-long IV antibiotic therapy she endured has provided no lasting solution to her pain. Respondent’s care and treatment of C.C. was a departure from the standard of care in that he diagnosed Lyme disease based upon an inadequate history and no objective laboratory test results from an ELISA test and Western blot. Specifically, Respondent failed to obtain C.C.’s travel history or any history of rashes, possible tick bites, including the size of the tick, and in fact obtained a history devoid of any flu-like symptoms characteristic of Lyme disease. C.C.’s primary symptoms were related to her back pain. Respondent’s own expert, Dr. Cichon, testified that the key to a diagnosis of Lyme disease is the patient’s history.4/ With this inadequate history in mind, Respondent did not obtain an ELISA test or Western blot, but instead relied on a test that, on its face, indicates that it is for investigational use only and should not be used as a diagnostic procedure without confirmation of the diagnosis by another medically-established diagnostic product or procedure. The more persuasive and compelling testimony established that the failure to obtain objective laboratory confirmation of Lyme disease through the use of the ELISA and Western blot tests is a departure from the standard of care recognized by a reasonably prudent similar physician. The more persuasive and compelling evidence also established that C.C. did not actually have Lyme disease, despite Respondent’s diagnosis of the disease. Respondent also departed from the appropriate standard of care by his failure to use the appropriate tests for the diagnoses of Babesiosis and Bartonellosis. His test of preference, the ECP test, is by its own terms, not intended to be used as the sole means for clinical diagnosis or patient management decisions. As stated by Dr. Robbins, it has no clinical relevance and is diagnostic of nothing. Likewise, his credible testimony indicated that use of the Fry test was not appropriate, as it is a proprietary test of the laboratory and not FDA approved.5/ Respondent’s care and treatment of C.C. also departed from the applicable standard of care by prescribing surgery for placement of a venous port for administration of intravenous medication, and by prescribing both intravenous and oral antibiotic therapy in inappropriate and excessive amounts. The more credible and persuasive testimony demonstrated that C.C. did not have Lyme disease, Babesiosis, or Bartonellosis, and therefore did not need any of the antibiotic therapy prescribed. Even had C.C. received a correct diagnosis, the more persuasive evidence demonstrated that the amounts and duration of the antibiotics prescribed were not only unwarranted, but potentially dangerous for the patient. C.C. had the possibility of negative reactions from the many antibiotics prescribed, but also the very real possibility that she has built up a resistance to the antibiotics such that they will be ineffective should she actually need them in the future. Finally, Respondent’s care and treatment of C.C. departed from the applicable standard of care by the prescription of heparin. There was no medical justification for the prescription of an anticoagulant for the treatment of Lyme disease, even if appropriately diagnosed (which did not happen here), and as with the prescription of multiple long-term antibiotics, was potentially dangerous and harmful to the patient. DOAH Case No. 15-2889PL; DOH Case No. 2011-18613 (Patients D.H., S.L., J.L., W.L., and D.D.) Patient D.H. Respondent provided care and treatment to patient D.H. from approximately November 24, 2010, to approximately October 14, 2011. D.H. was previously seen by a physician’s assistant, Thomas Gregory Roberts, who at various times worked under Respondent’s supervision, including the period from April 29, 2009, to May 26, 2010, and again from September 21, 2010, through December 18, 2010.6/ Mr. Roberts had ordered a previous CD57 test for D.H., and had prescribed doxycycline for him on a long-term basis. Mr. Roberts’ office was closing and his records were no longer available, so on November 24, 2010, D.H.’s wife, J.H., e-mailed Dr. Lentz to request laboratory tests and to schedule an appointment for D.H. She stated in part: Dear Dr. Lentz: Both my husband and I have been to you before, but not at your current office. [D.H.] went to Tom Roberts at Village Health Assoc. and was sent for blood work. His CD57 counts were off, so he put him on Doxycycline [sic] and was on it for several months. His last blood work was done in July and by the sound of it showed some improvement, but he told him to stay on the antibiotics. Tom Roberts gave him an order for follow up bloodwork which reads CD57 + NK Cells Dx2793. Since he is currently not practicing that we know of, we are requesting that you please write an order so that [D.H.] can have blood work done and come to you for the results. Based upon this e-mail, Respondent ordered a CD57 test, using the diagnostic code for and reference to Lyme infection, and an ECP test using the diagnostic code for and reference to Babesia infection. He did so without actually seeing D.H., taking a history, or performing a physical examination. Respondent diagnosed D.H. as having Lyme disease and Babesiosis. He communicated the diagnoses to D.H. on December 25, 2010, via e-mail, stating, “CD57 is positive for Lyme and ECP positive for Babesia. Call Amy at 424-6841 for an appointment. Dr. Lentz.” It does not appear from the record that he considered or ruled out any other condition for D.H.’s complaints. Respondent did not prescribe or order for D.H. an ELISA or Western blot test, PCR amplification of Bartonella or Babesial DNA, or blood smear tests at any time during D.H.’s care and treatment. Respondent did not refer D.H. to a specialist in the diagnosis and treatment of infectious diseases, such as Lyme disease, Bartonellosis, and Babesiosis at any time during Respondent’s treatment and care of D.H. D.H.’s first office visit was January 17, 2011. At that time, J.H., D.H.’s wife, who attended the majority of his doctor’s visits with him, testified that his only complaint at that point was fatigue, and ongoing diarrhea she attributed to the lengthy time he had already been on antibiotics. She acknowledged that he checked off those items on a form at the doctor’s office, but was not going to see Dr. Lentz complaining about those: he went simply because of his fatigue. He had no rash at that point, and never complained of a tick bite. Dr. Lentz’s records, however, indicate that he complained about exhaustion; face-neck, jaw, and orbital pain; diarrhea; cramping; stiff and painful joints; mood swings; irritability; explosive [sic]; and poor concentration. From what J.H. could remember, the physical examination Respondent performed on D.H. was very brief. Respondent took D.H.’s blood pressure, possibly looked in his mouth, palpated his abdomen, and did a knee reflex test. She did not remember him doing anything else, except having D.H. fill out a long form. Dr. Lentz’s medical records for this visit contain no prior medical history, no pulse, and no respiration rate. Respondent diagnosed D.H. with Lyme disease. When J.H. asked him if he was sure, Respondent said, absolutely. J.H. had done some research and knew that Respondent had only ordered a CD57 for D.H. She asked him about ordering the Western blot, but he did not order it. She could not remember Respondent’s exact response, but was led to believe that he did not think that the Western blot test was as accurate in diagnosing Lyme disease. At this first visit, Respondent also ordered the Fry test. Results from the Fry test are dated January 25, 2011, and indicate: Based on the accompanying test results for the sample for listed patient and accession number is suggested for follow up confirmation of the putative organism(s). Protozoan: The Special Stains (100x magnification) or the Advanced Stains (magnification listed) for this sample is suggestive of a protozoan. PCR testing for putative FL1953 is suggested for follow-up confirmation. EPierythrozoan/Hemorbartonella: The Special Stains (100x magnification) or the Advanced Stains (magnification listed) for this sample is suggestive of epierythrozoan/ hemobartonella. PCR or serology testing for the putative epierythrozoan/hemobartonella (Bartonella spp.) is suggested for follow up confirmation and speciation. (emphasis added). The records do not indicate that Respondent ordered any of the follow-up testing recommended by the Fry laboratory which, ironically, is the very testing for Bartonellosis that a reasonably prudent similar physician should order for this condition. His records also do not indicate that he ever added Bartonellosis as a diagnosis for D.H. During the course of his treatment, Respondent prescribed for D.H. the antibiotics Omnicef, azithromycin, and Cleocin, as well as Interface Plus Prothera (an enzyme supplement formulation), boluoke lumbrokinase (a fibrinolytic supplement), atenolol (a beta blocker used primarily in cardiovascular disease, added March 7, 2011), heparin injections (an anticoagulant, also added March 7), artemisinin (an antimalarial, added June 14), Mepron (an antiparasitic, added June 14), Tindamax (added June 14), Plaquenil (an antimalarial), and Vermox (an anthelmintic)(both added August 21). J.H. understood that, based upon Respondent’s explanations, the heparin was prescribed to help other medicines be absorbed into the cells, or something along those lines. She was concerned about D.H. being on the heparin, in part because as a result of him injecting the heparin in his abdomen, D.H. had a lot of bruising and knots all over his belly. She was also concerned because D.H. worked as a boat captain on the Mississippi River, which required him to be away from home for weeks at a time. She was concerned about the ramifications should he have an accident at work when he had no access to medical care. Her concerns were warranted. The couple also had concerns about the number of medications D.H. was taking while under Respondent’s care. He developed blurred vision, did not sleep well, and had chronic diarrhea. When D.H. came home from his last visit, which J.H. apparently did not attend, he reported that Dr. Lentz had said something about having a port placed for the administration of more antibiotics. That shocked her, so before he would go through with port placement, they sought a second opinion. Dr. Patrick Anastasio is an osteopathic physician who is a board-certified infectious disease specialist. During all times relevant to these proceedings, he was a solo practitioner in private practice at Emerald Coast Infectious Diseases in Fort Walton Beach, Florida. He has worked in the area for approximately 12 years. D.H. sought a second opinion from Dr. Anastasio regarding his Lyme disease and Babesiosis diagnoses. To that end, he saw Dr. Anastasio for the first time on September 29, 2011. Dr. Anastasio did not believe that D.H. had the symptoms initially to place him in a high risk group for Lyme disease. During his examination, he looked for signs that would be consistent with Lyme disease, such as arthritis, cognitive problems, or neurological problems, but did not discover any. Dr. Anastasio did not believe that D.H. had either Lyme disease or Babesiosis, but ordered a blood smear, and a Western blot and a Babesia PCR test to rule out the conditions. All tests came back negative.7/ Dr. Anastasio recommended to D.H. that he stop taking all of the medications prescribed by Dr. Lentz, and D.H. did so. It still took months for the diarrhea, most likely caused by the long-term antibiotic therapy, to subside. However, D.H. began to feel better once he stopped taking the antibiotics. Dr. Charles Powers, M.D., testified that Dr. Lentz’s medical records for D.H. were not adequate for the evaluation of whether D.H. had Lyme disease. He also believed that it was below the standard of care to use the CD57 for the diagnosis of Lyme disease as opposed to the ELISA and Western blot tests, and that it was below the standard of care not to order the ELISA and Western blot tests in the absence of an erythema migrans rash that Dr. Lentz could physically observe. Dr. Powers believed that there was no basis upon which to diagnose D.H. with Lyme disease, and therefore any treatment based on this faulty diagnosis would be below the standard of care. Even assuming the diagnosis was correct, Dr. Powers opined that the treatment ordered also was below the standard of care. According to Dr. Powers, a reasonably prudent family practitioner would usually prescribe doxycycline for the majority of cases, as opposed to the regimen of medications used by Dr. Lentz. Prescribing antibiotics the way they were prescribed would include adverse side effects, such as nausea and/or diarrhea with resistance to bacteria; development of C. difficile infection, which can be difficult to treat; and potential for allergic reactions, which can be fatal. Dr. Powers testified that when a combination of antibiotics is being used, with each additional antibiotic prescribed, the risk for complications increases exponentially. His testimony is credited. Dr. Powers also opined that the use of heparin in the treatment of Lyme disease, Babesiosis, or Bartonellosis was a departure from the standard of care, and was a dangerous choice for this or any other patient who did not have a need for a blood thinner. Dr. Robbins also believed that Respondent’s care and treatment of D.H. was below the standard of care. He testified that Respondent breached the standard of care by diagnosing D.H. with Babesiosis using the ECP test and the Fry testing for the purpose of diagnosing Bartonellosis. He also testified, consistent with Dr. Powers, that using heparin in the treatment of any of these three diseases was an egregious departure from the standard of care. The testimony of Drs. Robbins and Powers is credited. Dr. Cichon expressed concerns about the amount of medications prescribed by Dr. Lentz to D.H., specifically singling out the prescriptions for Plaquenil and Vermox. While his testimony fell far short of declaring that prescribing these medications represented a departure from the standard of care, his testimony was certainly not a ringing endorsement. It seemed as if he was trying to convince himself that Respondent’s care and treatment of this patient fell within the standard of care. His testimony to that effect is rejected as not credible. D.H. did not have a medical condition that justified the prescription of any of the medications and supplements that Dr. Lentz prescribed, much less for the duration taken. The prescription of any of these medications without a valid diagnosis was a departure from the standard of care attributed to a reasonably prudent similar physician. Patient S.L. Respondent provided care and treatment to patient S.L. from on or about August 17, 2010, to on or about January 7, 2011. On or about August 17, 2010, at her first office visit with Dr. Lentz, S.L. presented with and reported to Respondent a history of heavy rectal bleeding, which occurred every four to five days. At that visit, S.L. informed Respondent that in June, she had been advised to get a colonoscopy. Because of economic constraints, S.L. did not obtain the requested colonoscopy. There is no indication in the patient records for S.L.’s first office visit (or any later visit) that the reason for S.L.’s bleeding prior to his treatment of her had been determined or that it had resolved. S.L. first went to see Dr. Lentz at Hope Medical Clinic8/ because she believed that she had a urinary tract infection. She also had severe back pain, with pins and needles down both legs. Her back pain had started in 2005, following a car accident. S.L. does not recall Respondent ever performing a physical examination, although the patient records indicate that at least a minimal examination was performed. She does recall him talking to her about being from Pennsylvania, but does not recall him asking her about any travel history, whether she had been exposed to ticks, or had ever been bitten by a tick. Dr. Lentz’s medical records for this first visit make no mention of a travel history; no mention of tick exposure; and no mention of any type of rash. Much of the history related to other issues, such as S.L.’s history of bleeding, as opposed to any symptoms that could be said to be indicative of Lyme disease. The symptoms documented are “paresthesis to both legs due to lumbar path. Recent hematochezia. No melena. No upper abd. Pain. No diarrhea. Mostly awake sxs, not hs.” Yet in his assessment/plan notes, he lists diagnoses of lumbago, displacement of lumbar intervertebral disc without myelopathy, and chronic pain syndrome. He prescribed Lyrica, Elavil, Lortab, and ordered a CD57, listing the Lyme disease diagnostic code. There was no medical basis, based on the history presented, to suspect or test for Lyme disease. On September 21, 2010, S.L. presented to Dr. Lentz for a follow-up appointment. At this appointment, Respondent diagnosed S.L. as having Lyme disease. He ordered a Fry Bartonella test as well as an ECP test, and prescribed doxycycline, Omnicef, and Flagyl. On September 30, 2010, S.L. called Respondent and reported throwing up all of her antibiotics, and asked about medication for her nausea. Dr. Lentz added the diagnosis of Bartonellosis without seeing S.L. or performing any further physical examination. The results of the Fry test in the patient records state: “rare (1-4 organisms per total fields observed) coccobacilli adherent to erythrocytes – indicated by yellow arrow(s). This is suggestive of Hemobartonella(1) or Hemoplasma(2).” The notes also state, “[t]his stain is not FDA approved and is for research only.” At S.L.’s next appointment on October 5, 2010, Dr. Lentz prescribed rifampin and Cleocin, as well as Lovenox injections. Lovenox is a low molecular weight heparin that can be given subcutaneously. At the time Dr. Lentz prescribed it, there was no determination regarding the cause of her heavy rectal bleeding just a few months before. On October 19, 2010, just two weeks after starting the Lovenox injections, S.L. presented to the emergency room at Sacred Heart Hospital with complaints of blood in her urine.9/ Physicians in the emergency room attributed the blood in her urine to the Lovenox injections, and discharged her with a diagnosis of hematuria. That same day, she presented to Dr. Lentz and told him about her emergency room visit. Dr. Lentz lowered the dose for Lovenox, but did not discontinue its use. His notes for this visit indicate that she had left flank pain, slight liver tenderness, no masses, and a “light liver test elevated, <2X normal.”10/ He added a diagnosis for Babesiosis, but did not appear to explore what was causing the liver tenderness and elevated tests. Under his assessment and plan, it states: “1. Cut Lovenox BID to QAM. 2. Add Culturelle/probiotics to GI tract due to antibiotics being used, if urine lightens up and less blood on dipstick, then improvement.” Respondent did not prescribe S.L. a PCR amplification or Bartonella or Babesial DNA, or Western blot immunoassay tests at any time during Respondent’s care and treatment of S.L. Respondent did not refer patient S.L. to a specialist in the diagnosis and treatment of infectious diseases, such as Lyme disease, Bartonellosis, and Babesiosis, at any time during Respondent’s care and treatment of S.L. S.L. testified that the physicians at Sacred Heart Hospital informed her that there was no reason for her to be on the antibiotics or blood thinner prescribed by Dr. Lentz, and based upon their advice, she stopped the medication regimen he prescribed. The medical records from Sacred Heart do not mention this advice, and she saw Dr. Lentz at least twice after her emergency room visit: October 19 and November 2, 2010. After that, the only communications in Dr. Lentz’s medical records for S.L. appear to be requests for medication related to urinary tract infections as opposed to treatment for Lyme disease, Babesiosis, or Bartonellosis. In any event, she quit seeing Dr. Lentz for Lyme disease, Babesiosis, and Bartonellosis at least as of November 2, and testified credibly that she feels fine. Based on the credible testimony of Drs. Powers and Robbins, Dr. Lentz’s diagnosis and treatment of S.L. violated the applicable standard of care in that he failed to obtain an appropriate history to diagnose Lyme disease, Babesiosis or Bartonellosis in the first place. He failed to obtain a travel history, any information regarding possible tick bites, and if there was such a bite, the size of the tick and duration of the bite. He also failed to document symptoms that would suggest the possibility of Lyme disease to justify any objective laboratory testing. S.L.’s symptoms were related to back pain and a history of heavy bleeding. Her symptoms simply did not justify testing for Lyme disease. The evidence was not clear and convincing that Respondent failed to perform an adequate examination. As noted above, while S.L. does not remember one, the medical records reflect notations indicating that one was in fact performed. The problem is that the history and physical examination do not support further investigation for Lyme disease. Respondent also departed from the applicable standard of care by relying on tests that were not appropriate for the diagnosis of Lyme disease, Babesiosis, or Bartonellosis. As stated above, there was no basis to test for these conditions at all, but if testing was going to be performed, then the appropriate tests were not the CD57, ECP, and Fry tests, but rather the ELISA, Western blot, PCR, and serologies discussed above. Respondent’s prescription of multiple antibiotics of lengthy duration also violated the standard of care, for reasons discussed above at paragraphs 60 and 79. Likewise, Respondent’s prescription of Lovenox fell below the standard of care. The use of Lovenox for Lyme disease, Babesiosis, and Bartonellosis is not warranted at all, but is especially egregious here, where S.L. had excessive bleeding problems of which Respondent was aware just months before Lovenox was prescribed, with no documentation that the cause of the bleeding had been identified and addressed, and no indication that Respondent did anything to investigate the cause of the bleeding. That he continued to prescribe the Lovenox, albeit at a lower dose, after her visit to the emergency room with hematuria, just compounds the problem. Dr. Cichon testified that Respondent met the standard of care in diagnosing and treating S.L., saying that she had unexplained pain that could be due to Lyme disease. He struggled to identify any symptoms that are commonly associated with Lyme disease. His testimony seemed to indicate anytime there is unexplained pain, Lyme disease is a possibility. His testimony on this issue is not credible. The same can be said for his support of the diagnosis of Babesiosis. Dr. Cichon identified the primary symptoms of Babesiosis as headaches, sweating, and air hunger. S.L. did not have these symptoms, leaving only the ECP test as a basis for diagnosis. Relying on the ECP (which is only slightly elevated) is contrary to Dr. Cichon’s own testimony regarding the primary importance of a thorough history to support such a diagnosis. Similarly, Dr. Cichon acknowledged in his testimony that he could not tell from Respondent’s medical records whether S.L. had any symptoms to support a diagnosis for Bartonellosis, and stated that her symptoms could be due to her lumbar pathology. Given these inconsistencies, his opinion that Dr. Lentz did not depart from the applicable standard of care in the diagnosis of each of these diseases is not credible and is rejected. Medical records must justify the course of treatment for a patient. Dr. Lentz’s medical records for S.L. do not justify the diagnosis or treatment of Lyme disease, Babesiosis, or Bartonellosis. The medical records do not document symptoms that are consistent with the diagnoses of any of these diseases, and fail to provide a complete medical history. Patients J.L., W.L., and D.D. J.L. is the mother of S.L. W.L. is J.L.’s husband and S.L.’s father, and D.D. is S.L.’s son and J.L. and W.L.’s grandson. On September 22, 2010, approximately one month after S.L. began treatment with Dr. Lentz, J.L. wrote him the following e-mail: Dr. Lentz: Thank you for talking with me on the phone today. We are really concerned about S.L. and we can not [sic] express to you how much you are appreciated for all you have done for her. You are a true blessing to our family. My husband was bitten by a tick over the July 4th weekend in MO. He developed the bulleye [sic] rash and went to our family doctor. Dr. Calvin Blount. He was give [sic] 10 days of antibiotics, but no follow up or blood test were ever ordered. We would like to be tested for Lyme. We believe that S.L. might have contracted Lyme before she became pregnant with D.D. and would like him tested also. Here is our information. Please let me know if you need any additional information. Thank you again for all you have done. As noted above, there was an insufficient basis to justify the ordering of any tests related to Lyme disease for S.L. The only basis for ordering tests for D.D. is the suspicion that S.L. may have been infected prior to giving birth to D.D. If there is no basis for suspecting S.L. has Lyme disease, there is no basis for suspecting D.D. has Lyme disease. Respondent did not make an appointment for, take a history from, or perform a physical examination of J.L., W.L., or D.D. Based upon this e-mail alone, he ordered CD57 and ECP tests for all three of them, as well as C4a and C3a tests for J.L. and W.L. To justify ordering the tests, he listed “Lyme Disease (088.81)” under his assessment/plan for each patient. Although he never saw any of these patients, he coded each encounter as “high complexity.” On October 14, 2010, Dr. Lentz sent an e-mail to J.L. stating that “D.D. is positive for Lyme and negative for Babesia.” On October 24, 2010, Dr. Lentz sent an e-mail to J.L. stating, “W.L. C4A is back=20,000+ indicative of active Lyme.” On October 25, 2010, Dr. Lentz sent an e-mail to J.L. which stated, “[t]he CD57 is 50=positive, and the ECP is 11.5=positive for Babesia. My initial charge is $400 and $200 for return visits. Since I will be seeing both you and [W.L.], I will drop that to $300 initial visits. Call Amy for the schedule.” Dr. Lentz testified that he did not diagnose J.L., W.L., or D.D. with any condition, and did not really consider them to be patients. In his view, he was simply doing a favor for the family members of a patient. However, he created records that referred to each patient as being new patients needing tests for Lyme disease, and included diagnostic codes for the lab tests. With respect to each of them, he made an interpretation of the tests that he ordered. At least with respect to D.D., he admitted in his deposition that he diagnosed D.D. with Lyme disease based on the laboratory tests. Both S.L. and W.L. testified credibly that, based on the communications received from Dr. Lentz, they each believed that he had diagnosed them with Lyme disease, and that he had diagnosed J.L. with Babesia. It is found that he did, in fact, provide diagnoses to J.L., W.L., and D.D., without the benefit of a personal history, or a physical examination. Respondent did not refer J.L., W.L., or D.D. to a specialist in the diagnosis and treatment of infectious diseases such as Lyme disease, Bartonellosis, or Babesiosis. Respondent did not order for J.L., W.L., or D.D. an ELISA or Western blot test, PCR amplification of Bartonella or Babesial DNA, or blood smear tests. J.L. and W.L. decided to get a second opinion regarding the Lyme disease and Babesiosis diagnoses, and went to see Dr. Anastasio. Dr. Anastasio testified that J.L. did not have the required exposure to or symptoms for Lyme disease. Because she came to him with a Lyme disease diagnosis, he ordered a Lyme Western blot, a PCR for Babesiosis, and a PCR for Bartonellosis. J.L.’s Western blot IgM was negative, with two of the three antibody bands tested returning as absent. The Western blot IgG was negative, with all ten antibody bands returning as absent. J.L.’s PCRs for both Babesiosis and Bartonellosis were negative. Dr. Anastasio testified that he did not believe that J.L. had either Lyme disease or Babesia. His testimony was persuasive, and is credited. Dr. Anastasio testified that, given W.L.’s history of a tick bite followed by a rash, there was at least a basis to believe his symptoms could be an indication of Lyme disease. The tick bite and rash were approximately six months prior to W.L. presenting to Dr. Anastasio, and almost three months prior to Dr. Lentz ordering tests for him. Given these time frames, there was plenty of time for W.L. to develop antibodies to Lyme disease if he was in fact infected with the disease. Dr. Anastasio testified that at the time he saw W.L., W.L.’s symptoms were not consistent with late Lyme disease. Dr. Anastasio ordered several tests for W.L., including a Lyme Western blot, a PCR for Babesiosis, a blood smear for Babesiosis, and a PCR for Bartonellosis. The Western blot test was negative, with zero out of ten antibodies present. Both PCR tests and the blood smear were also negative. Dr. Anastasio concluded that W.L. did not have Lyme disease, Babesiosis, or Bartonellosis, and his testimony to that effect is credited.11/ Respondent failed to meet the applicable standard of care with respect to the care and treatment of patients W.L., J.L., and D.D. Based on the credible testimony of Drs. Powers and Robbins, Dr. Lentz departed from the standard of care in ordering tests for all three patients when he did so without seeing them, taking a history with respect to any of them, or conducting a physical examination of any of them to determine whether any of the requested tests were warranted or even justified. Respondent also departed from the applicable standard of care when he ordered tests that would not even assist in diagnosing Lyme disease, Babesiosis, or Bartonellosis had testing for those conditions been appropriate. Moreover, Dr. Powers testified credibly that the appropriate way to order tests for a suspected condition is to use the symptoms that are being investigated by the physician ordering the test, as opposed to the suspected disease being considered. For example, one ordering a mammogram would list “screening” or “diagnostic,” not “breast cancer,” because at that point, breast cancer has not been, and might never be, diagnosed. Documenting the symptom as opposed to the disease is important in terms of continuing care, so that there is no confusion by a subsequent health care provider reading the records about a premature diagnosis. Dr. Powers’ testimony is credited. Dr. Lentz also claimed that because J.L., W.L., and D.D. were not his patients, he did not need to have medical records for them that complied with section 458.331(1)(n). However, Dr. Lentz created patient records for all three in order to order the laboratory tests for them. He coded the action taken as having high complexity. The definition of medicine includes “diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition.” § 458.305(3), Fla. Stat. Respondent clearly engaged in the practice of medicine when he wrote prescriptions for tests for the purpose of diagnosing disease. By ordering these tests, creating medical charts for them (however limited they may be), interpreting the test results and communicating those results, he established a physician-patient relationship with J.L., W.L., and D.D. Accordingly, he was required to have patient records that justified the course of treatment (here, the diagnosis of Lyme disease, Babesiosis, and Bartonella). The records presented do not meet that requirement. DOAH Case No. 15-2890PL; DOH Case No. 2012-01987 (Patient C.H.) At the time of the events giving rise to this case, C.H. was a 23-year-old woman. She was married and attending her final year of chiropractic school in Kennesaw, Georgia. C.H. testified that in December 2010, she had experienced a bout with the flu, including an episode where she passed out in the shower, for which she was prescribed a Z-pack, and recovered. She then had gum surgery during the Christmas break, requiring anesthesia, after which she visited her husband’s family in Missouri over the Christmas holiday. After C.H. returned to Georgia, she returned to class for the spring semester. In early February of 2011, she had an episode in class where her heart started beating very rapidly, and upon a physician’s advice, went to the emergency room. Tests given there were normal. Follow-up tests also did not reveal the basis for her symptoms, and in March 2011, her mother contacted Dr. Lentz based upon the suggestion of a family friend who had treated with him. On or about March 20, S.H. contacted Respondent by e-mail regarding her 23-year-old daughter, C.H. S.H. had been referred to Respondent by a family friend. S.H. reported that she had found a checklist for Lyme disease symptoms online, which included some of the symptoms her daughter was experiencing, such as fatigue, rapid heartbeat, chest pain, headaches, blurry vision, and difficulty concentrating. She also related that C.H. was in her final year of chiropractic school and had recently completed her national boards, and thought that some of the symptoms might be related to stress and anxiety from her studies. In that e-mail, S.H. reported to Respondent that C.H. had tested negative for Lyme disease the previous week. Respondent received a copy of C.H.’s negative Lyme disease test report from blood collected on or about March 16, 2011. On or about March 22, 2011, Respondent documented his assessment of C.H. as Lyme disease and chronic fatigue syndrome. He ordered CD57, C3a, C4a, and ECP laboratory tests of C.H.’s blood. At the time these tests were ordered, Respondent had not seen or talked to C.H., taken her history, or performed a physical examination. Respondent did not at any time prescribe an ELISA test or Western blot test for C.H. On April 14, 2011, S.H. e-mailed Dr. Lentz to see if any test results had been received for C.H. Dr. Lentz replied, “CD57 51+ positive for Lyme. Babesia is negative at this time.” When asked how to proceed, he told her she needed to start treatment until the CD57 is over 120.12/ S.H. asked via e-mail whether C.H. should get treatment from Dr. Lentz or her family doctor, saying they would prefer to work through him, as this is his specialty. Dr. Lentz responded, “This is more than a good family physician can handle. I have 35 years of family practice and know first hand. Lyme is a multi-faceted problem and requires extra time and effort to educate and direct this complex problem.” On or about April 18, 2011, Respondent prescribed the antibiotics Omnicef (cefdinir) and azithromycin to C.H. At the time he prescribed these medications, Respondent had not seen C.H., and there is no documentation in the patient records that Respondent made any inquiry regarding potential allergies before prescribing these antibiotics. On or about April 25, 2011, C.H. presented to Respondent for the first, and only, office visit. The medical records for that date contain symptoms that C.H. credibly denies having reported to him, such as double vision, twitching, tremors and shakes, explosive (behavior), and shortness of breath. C.H. does not recall being weighed at that visit, although the record contains a weight for her. It does not however, indicate her temperature, pulse, or respiration rate. She recalls a minimum examination for which she remained clothed in shorts and a t- shirt. During the examination, Respondent asked if she had ever been bitten by a tick or had a rash, and checked some areas of her body for a tick bite/rash, which she denied ever having. Dr. Lentz did not inquire about her travel history. Despite the fact that one of her symptoms was the inability to take a deep breath and had suffered from heart palpitations, his patients do not reflect a temperature, pulse, or respiration rate. At that visit, Respondent added the antibiotic Flagyl (metronidazole) and Interfase Plus Prothera, an enzyme formulation, to C.H.’s medications. C.H. testified that at that visit, Dr. Lentz told her that he was a specialist with numerous years of experience, and that he was the only one certified to be able to treat this, and she would have to be under his constant care. C.H. also testified that he told her she would need to be medicated for the rest of her life, because Lyme disease lives forever in your body, and that she would probably never be able to get pregnant or have children. C.H. was devastated by this information. The entire visit with Dr. Lentz, including both the taking of her history and the physical examination, lasted approximately ten minutes. C.H.’s testimony is credited. On or about June 10, 2011, Respondent prescribed CD57, C3a, C4a, and ECP tests for C.H. On or about July 2, 2011, Respondent prescribed C.H. with Babesiosis. He made this diagnosis completely on the basis of test results, as C.H. had not returned to his office after her first and only visit. On or about July 9, 2011, Respondent added artemisinin (an antimalarial), Hepapro (a nutritional supplement); Mepron (atovaquone, an antiparasitic), heparin injections (an anticoagulant), magnesium oxide (antacid, laxative, dietary supplement), and omega-3 fatty acids to C.H.’s treatment. Respondent did not prescribe a blood smear examination for Babesial parasites or PCR amplification for Babesial DNA for C.H. At no time during her treatment did Dr. Lentz refer C.H. to a specialist. Indeed, he represented to her and to her mother that he was a specialist in Lyme disease and that he was better equipped to treat these conditions than a normal family practitioner would be. C.H.’s condition worsened rather than improved under the medication regimen Dr. Lentz prescribed. She suffered diarrhea and blurred vision and her other symptoms did not improve. Dr. Joel Rosenstock is a medical doctor licensed to practice medicine in the State of Georgia. He is board certified in internal medicine with a subspecialty in infectious disease, and has practiced infectious disease medicine for over 30 years. During the time related to this proceeding, Dr. Rosenstock was practicing in Atlanta, Georgia, at the AbsoluteCARE Medical Center and Pharmacy. C.H. first presented to Dr. Rosenstock on July 12, 2011, at which time she reported Dr. Lentz’s diagnoses of Lyme disease and Babesiosis. In contrast to her brief visit with Dr. Lentz, her consultation with Dr. Rosenstock lasted two to three hours. Dr. Rosenstock immediately ordered a Western blot test for C.H., which was negative. He conducted a thorough history and physical for her, and asked C.H. questions about her travel history, her dogs and where they slept, her hobbies, etc. He advised her that he did not believe that she had Lyme disease or Babesiosis, and recommended that she stop all of the antibiotics and other medications that Dr. Lentz had prescribed. He warned her that it could take several months before the drugs were out of her system, so relief from the side effects would not be immediate. Within a few weeks of stopping the medications, C.H. was feeling much better and was on her way to feeling back to her old self. Dr. Rosenstock did not believe that any of the tests that Dr. Lentz ordered for C.H. were useful in diagnosing Lyme disease or Babesiosis, and did not believe that heparin served any purpose in treating C.H. Based on the credible opinions of Drs. Powers and Robbins, and the testimony of Dr. Rosenstock as a subsequent treating provider, it is found that Dr. Lentz departed from the applicable standard of care in the care and treatment of C.H. in several respects. First, Respondent departed from the applicable standard of care by ordering blood tests and prescribing antibiotic treatment for C.H. (as well as other medications) when he had never actually seen her. At the time he ordered the blood tests, and at the time he first ordered medications for C.H., he had not obtained a history for her, much less a history that was suggestive of Lyme disease, and had not conducted a physical examination of any kind. All he had as a basis for ordering tests was the e-mail from her mother. This e-mail was an insufficient basis upon which to determine that testing for Lyme disease was warranted. When he did actually see C.H., he failed to perform an adequate physical examination and failed to take an adequate history that included travel history, possible exposure to ticks, how long any tick bite may have lasted, and the size and appearance of the tick. Respondent failed to use the generally accepted tests for the diagnosis of Lyme disease and Babesiosis, instead relying on tests that are meant for investigational purposes and indicate on their face that they are not meant for diagnostic purposes. Moreover, as noted above, at the time he ordered the tests, he had no basis upon which to believe C.H. had Lyme disease. Although even his own expert witness consistently stated that a diagnosis of Lyme disease is based in large part upon a thorough history, here, Dr. Lentz had no history. Dr. Cichon’s testimony that it was appropriate to rely on the information in S.H.’s e-mail about her daughter’s symptoms (keeping in mind that her daughter is an adult, not a child) is rejected as not credible. Respondent also departed from the applicable standard of care by prescribing Omnicef, azithromycin, artemisinin, Hepapro, Mepron, heparin injections, magnesium oxide, and omega-3 fatty acids for a condition that she did not have. Given that C.H. had no condition justifying the prescription of these drugs, the prescriptions were both inappropriate and excessive. They also were prescribed for a duration that was not justified, and exposed C.H. to complications that were unnecessary. Respondent was required to keep medical records that justified the course of treatment. His medical records for C.H. fell well short of this requirement. He failed to document a complete history, an adequate physical examination, or why he did not refer her case to a specialist. He also departed from the applicable standards when he used a diagnosis of Lyme disease as the basis for blood tests at a time when he had never seen the patient. Failure to Timely Report Diagnoses or Suspicion of Lyme Disease to the Department of Health (DOAH Case Nos. 15-2889 and 15-2890) Finally, in DOAH Case Nos. 15-2889 and 15-2890, the Department alleged that Respondent failed to report his diagnoses of Lyme disease or suspicions of Lyme disease for patients D.H., J.L., W.L., S.L., D.D., and C.H. to the Department of Health. Section 381.0031, Florida Statutes (2010-2011), requires certain licensed health care practitioners and facilities in Florida to report the diagnosis or suspicion of the existence of diseases of public health significance to the Department of Health. Lyme disease is one of the diseases identified by rule that meets the definition of a disease that is “a threat of public health and therefore of significance to public health.” § 381.0031(2), Fla. Stat.; Fla. Admin. Code R. 64D-3.029. There are forms that are identified by rule for use in reporting these cases. Fla. Admin. Code R. 64D-3.030(3). Ashley Rendon is a biological scientist for the Department of Health in Okaloosa County. Ms. Rendon is an epidemiologist whose duties include investigating reportable disease conditions and outbreaks of public health significance in Okaloosa County. According to Ms. Rendon, whose testimony is consistent with the Department’s rules on this subject, all diagnosed or suspected cases of Lyme disease must be reported to the Department. Once reported, the county health office will conduct an analysis of the reported diagnosis or suspicion, based on a “guidance to surveillance” document, to determine whether the reported case meets the definition for Lyme disease such that the case needs to be reported to the statewide system and to the CDC. Ms. Rendon testified that whether a suspected case or a diagnosis meets the case definition is not for the practitioner to decide. Ms. Rendon’s testimony is credited. According to Ms. Rendon, the Department maintains records both for those reported cases that met the case definition and those reported cases that did not. For 2010, there was one case of Lyme disease that was confirmed, probable, or suspect. None were reported for 2011. There were seven to eight additional cases that were reviewed, but not reported as probable, confirmed, or suspect. Not all reported results are confirmed by ELISA or Western blot. Ms. Rendon reviewed the records of the Department to determine whether Dr. Lentz had reported any cases of Lyme disease, whether suspected or diagnosed, to the Department. There was one instance where a patient of Dr. Lentz’s apparently called in and asked questions, but there was no record of Dr. Lentz or anyone in his office reporting Lyme disease. Dr. Lentz claimed that he had at least on one occasion attempted to report in the past, but that he could not say if he had reported any of the patients named in the Administrative Complaints. He claimed that the Department would not accept reports that are not supported by two-tier testing results, so he stopped trying to report. His claim is rejected as not credible. There is clear and convincing evidence to establish that Respondent failed to report his diagnoses of Lyme disease for patients D.H., J.L., W.L., D.D., S.L., and C.H. General Observations Of the seven patients presented in this proceeding, Dr. Lentz saw only two before ordering tests for Lyme disease and in some cases, Babesiosis or Bartonellosis. With respect to C.H., not only did he fail to see her before ordering testing, but he ordered medications for her without ever obtaining a medical history or performing a physical examination. Some of the patients specifically requested testing for Lyme disease. However, it is the physician’s responsibility to determine whether there is any realistic reason to believe that a patient has a need for such tests. Moreover, in several instances, the general, non-specific symptoms related by the patients suggest several other alternative conditions that could cause the patients’ problems. Even Respondent’s expert opined that Lyme disease, Bartonellosis and Babesiosis share a lot of general, non-specific symptoms with other illnesses, including serious diagnoses such as ALS, MS, and rheumatoid diseases. These are all, according to Dr. Cichon, differential diagnoses that a physician should sometimes consider when trying to find a diagnosis. Yet with all of these patients, Dr. Lentz went straight to Lyme disease every time. He did not consider much of anything else when even to a lay person, the records cry out for a more thoughtful and measured approach. In short, it seems that Dr. Lentz wanted to find Lyme disease regardless of the symptoms presented, and so he did. By doing so, he cost these patients not only the money used for testing and, with respect to C.C., W.L., S.L., and C.H., subjecting them to treatments they did not need and, in at least with respect to S.L., could not afford, but he subjected them to a treatment regimen that made them miserable, was of questionable benefit, and exposed them to unnecessary risks. Petitioner presented the expert testimony of Dr. Charles Powers, a general family practitioner, and Dr. William Robbins, an infectious disease specialist. It also presented the testimony of subsequent treating physicians: Dr. Janelle Robertson, Dr. Patrick Anastasio, and Dr. Joel Rosenstock. Each subsequent treating physician testified credibly that the symptoms presented simply did not justify a diagnosis of Lyme disease, and the testing they either conducted or reviewed did not indicate a basis for such a diagnosis. Their testimony was consistent with that of both expert witnesses presented by the Department, and the testimony of these subsequent treating physicians and expert witnesses have been accorded great weight. Respondent presented the testimony of Dr. Michael Cichon, a retired infectious disease specialist. Dr. Cichon’s testimony was in many respects inconsistent, and at times he seemed to be struggling to actually support the care and treatment that Respondent performed in these cases. While he championed Respondent’s use of the CD57, the ECP, and the Fry test, he also admitted that he seldom, if ever, used some of these tests, and that there were problems with standardization of the tests. Moreover, the tests themselves indicated on their face that they were for investigational, as opposed to diagnostic, use, and should not be used as the sole basis for diagnosis of patients. Because of the significant inconsistencies with his testimony and the contrasts between what he advocated and what Dr. Lentz sometimes did, his testimony is given little weight.
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 that Respondent has violated section 458.331(1)(g), (m), and (t), as alleged in the three Administrative Complaints at issue in this proceeding; and by the findings that Respondent violated section 458.331(1)(t) with respect to all seven patients, Respondent is guilty of repeated malpractice. It is further recommended that the Board of Medicine revoke his license to practice medicine in the State of Florida, impose an administrative fine in the amount of $30,000, and impose costs pursuant to section 456.072. DONE AND ENTERED this 8th day of July, 2016, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2016.
The Issue This is a license discipline case in which the Respondent has been charged by Amended Administrative Complaint with numerous violations of Section 458.331(1), Florida Statutes. The violations charged include allegations of insufficient record-keeping, allegations of assisting unlicensed persons to practice medicine, allegations regarding deceptive or misleading statements made in the practice of medicine, and allegations of failure to practice medicine at the required level of care and skill. The Respondent disputes all of the alleged violations.
Findings Of Fact Basic background facts The Respondent is, and has been at all times material and relevant to this proceeding, a licensed physician, having been issued license number ME 0008519 by the State of Florida. Facts regarding DEA inspection On or about September 20, 1988, Drug Enforcement Administration (DEA) investigators Gayle Roux and Jeffrey Gilbert made an inspection of the Respondent's premises located at 16400 N.E. 19th Avenue, North Miami Beach, Florida. At the time of the inspection mentioned immediately above, the Respondent was a registered practitioner with the DEA, having been issued DEA number AW6475847. At the conclusion of the inspection described above, DEA agents Roux and Gilbert were critical of certain aspects of the Respondent's record-keeping practices. However, the evidence regarding the Respondent's record-keeping was too vague and incomplete to afford a basis for concluding whether the criticisms of the two DEA agents were warranted. Cocaine hydrochloride is a salt derivative of cocaine. Both cocaine hydrochloride and cocaine are Schedule II controlled substances pursuant to Chapter 893, Florida Statutes. Cocaine is a highly addictive substance with a high potential for abuse. The substances in the possession and control of the Respondent at the time of the DEA inspection described above included cocaine hydrochloride and morphine, as well as other controlled substances. Morphine is a Schedule II controlled substance pursuant to Chapter 893, Florida Statutes. The Respondent recorded dispensing information regarding cocaine hydrochloride in patient files, and also recorded some dispensing information in his computer records. The Respondent regularly engaged in the dispensing or administering of controlled substances, but such activity was not a large portion of his medical practice. In other words, he did a small amount of such dispensing and administering on a regular basis. The Respondent charged patient L. C. for the cocaine hydrochloride he dispensed to her. Facts regarding Sphenopalatine Ganglion Blocks The Respondent allowed his nurse, Juliana Wilson, an individual who was not licensed to practice medicine or nursing in the State of Florida, to administer Sphenopalatine Ganglion Blocks to patients when the Respondent was not in his office and without the Respondent's supervision. A Sphenopalatine Ganglion Block involves a tropical intranasal application of cocaine hydrochloride. The application of Sphenopalatine Ganglion Blocks for the treatment of pain constitutes the practice of medicine. The Respondent also provided patient L. C. with 25 grams of a 50 percent dilution of cocaine hydrochloride, on a monthly basis, for patient L. C. to self-administer Sphenopalatine Ganglion Blocks on a daily basis at times when the Respondent was not present. Facts regarding ozone therapy Ozone is represented by the chemical formula O3. Ozone is a strong oxidant. Ozone is generally considered a poisonous substance. Ozone is generally accepted for use as a water purification agent. There is no recognized legitimate medical use of ozone other than as a sterilization agent for materials outside the human body. There is no legitimate medical literature that supports the use of ozone in the treatment of human patients, despite the fact that ozone does kill bacteria and viruses. Ozone is not approved by the Food and Drug Administration to treat human diseases. The intravenous injection of ozone for the treatment of AIDS, cancer, or other illnesses constitutes the practice of medicine. As part of the ozone therapy, the Respondent gave intravenous injections of ozone to patients as a form of treatment. During the course of the treatment of patients B. C. and S. A., the Respondent provided intravenous injections of ozone. The Respondent treated patient S. A. for lymphadenopathy and/or lymphadenitis. Lymphadenopathy is an enlargement of the lymph glands. Lymphadenitis is an inflammation of the lymphatic system. Neither lymphadenopathy nor lymphadenitis should be treated with ozone or hyperbaric oxygen or any form of oxygen therapy and it was clearly below an acceptable level of care to treat patient S. A. with these modalities. The Respondent treated patient B. C. for the Epstein-Barr virus. The Respondent, by treating patient B. C.'s Epstein-Barr virus with ozone, subjected patient B. C. to a treatment of no approved benefit with certain toxicities that might have been harmful and was, at best, useless. In view of patient B. C.'s complaints, it was quackery for the Respondent to administer ozone therapy to the patient. There is no existing cure or successful treatment for AIDS that is accepted by the general medical community. There are, however, helpful treatments. The ozone treatments administered by the Respondent to patients B. C. and S. A. were not administered as part of a controlled experiment. The Respondent did not have a research protocol on file with the FDA regarding the use of ozone therapy to treat patients B. C. and S. A. Utilization of any treatment modality which has not been accepted by the medical community, for which there is no recognized medical literature, for which there is no consensus of medical thought, and which is not approved by the FDA, requires a research protocol. It is a sham to allege that ozone therapy benefits patients in any way. It is grossly incorrect and is a gross violation of the standards of practice to utilize a form of treatment which is neither accepted by the medical community nor accepted by FDA. The use of ozone treatments on patients S. A. and B. C. constituted a gross violation of the standard of care. Facts regarding treatment billing statements During the course of the treatment of patients B. C. and S. A., the Respondent provided intravenous injections of ozone and indicated a procedure code of 99182 on the treatment statements. Procedure code 99182 is a procedure code recognized by Blue Cross Blue Shield of Florida to indicate subsequent hyperbaric oxygen pressurization. Hyperbaric oxygen treatments occur by placing a patient within a pressure chamber and either pressurizing the chamber with oxygen and having the patient breath oxygen, or pressurizing the chamber with air and having the patient breath oxygen through a mask. The patient's body and lungs are thereby exposed to an environment of pressure that is greater than normal atmospheric pressure. Hyperbaric oxygen is used to treat such conditions as decompression sickness (commonly known as "the bends") and carbon monoxide poisoning. The Respondent did not have a hyperbaric oxygen chamber in his office during the period of treatment of patient B. C. The treatment statements were provided to patients A. S. and B. C. by the Respondent for purpose of insurance reimbursement. The Respondent did not place patient S. A. under any form of pressurization. It was fraudulent to bill patient S. A. for subsequent oxygen treatment when patient S. A. was not exposed to any form of pressurization and the Respondent indicated to patient S. A. that he was being treated with an ozone injection. The Respondent billed patients S. A. and B. C. for hyperbaric oxygen treatments when, in fact, he provided ozone injections to the patients. It was fraudulent to bill the patients' insurance company for hyperbaric oxygen when, in fact, the Respondent provided ozone injections to patients S. A. and B. C. The treatment statements furnished by the Respondent included the following language: "Professor and Chairman, American Board of Pain Medicine." The language "Professor and Chairman, American Board of Pain" implies that the Respondent has received formal recognition as a specialist. The American Board of Pain Medicine was not recognized as an approved specialty board of the American Board of Medical Specialties during the years 1988 through 1990. Facts regarding prior discipline Upon review of the Board of Medicine's Final Order in Department of Professional Regulation v. Willner, DPR case numbers 49222 and 73220, DOAH case numbers 86-2064 and 87-1599, the First District Court of Appeal upheld seven of ten violations found by the Board against the Respondent. The findings of guilt in those cases were based upon the Respondent's violation of Section 458.331(1)(u), Florida Statutes, human experimentation without consent [two counts]; violation of Section 458.331(1)(h), Florida Statutes, failing to file a report required by federal law; violation of Section 458.331(1)(t), Florida Statutes, substandard treatment; violation of Section 458.331(1)(d), Florida Statutes, false, deceptive, or misleading advertising; violation of Section 458.331(1)(1), Florida Statutes, soliciting patients through the use of fraud; and violation of Section 458.331(1)(n), Florida Statutes, exploiting patients for financial gain. As a result of those findings of guilt, the Respondent's license to practice medicine was suspended for one year, his license was placed on probation for two years, and he was required to pay a $7,000.00 administrative fine.
Recommendation On the basis of all of the foregoing findings of fact and conclusions of law, it RECOMMENDED that a final order be issued in this case to the following effect: Dismissing Count One of the Amended Administrative Complaint because of insufficient proof. Concluding that the Respondent is guilty of the violations alleged in Counts Two, Three, Four, Five, and Six of the Amended Administrative Complaint. Imposing the following administrative penalties against the Respondent: (a) Revocation of the Respondent's license to practice medicine, and (b) assessment of administrative fines totaling $20,000.00 comprised of a $5,000.00 fine for violation of each of the following Counts: Two, Three, Four, and Five. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of September 1993. MICHAEL M. PARRISH 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 20th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-6795 The following are the Hearing Officer's specific rulings on all proposed findings of fact submitted by all parties. Proposed findings submitted by Petitioner: Paragraphs 1, 3, 3: Accepted. Paragraphs 4, 5, and 6: Rejected as not supported by persuasive clear and convincing evidence. To the contrary, the testimony of the two DEA agents, Roux and Gilbert, was vague, ambiguous, and incomplete. The testimony of both of these witnesses was seriously undermined during the course of cross-examination. Paragraphs 7, 8, 9, 10, and 11: Accepted. Paragraph 12: Rejected as not supported by persuasive clear and convincing evidence. To the contrary, the testimony of the two DEA agents, Roux and Gilbert, was vague, ambiguous, and incomplete. The testimony of both of these witnesses was seriously undermined during the course of cross-examination. Paragraph 13: Accepted in part and rejected in part. It is clear that the Respondent recorded dispensing information in patient files. It is clear that he also recorded some dispensing information in his computer records, but the testimony as to the nature of those computer records is somewhat incomplete. Paragraphs 14, 15, and 16: Rejected as not supported by persuasive clear and convincing evidence. To the contrary, the testimony of the two DEA agents, Roux and Gilbert, was vague, ambiguous, and incomplete. The testimony of both of these witnesses was seriously undermined during the course of cross- examination. Paragraph 17: Accepted in substance. Paragraphs 18, 19, 20, 21, 22, 23, 24, 25, and 26: Accepted. Paragraphs 27, 28, and 29: Accepted in substance. Paragraph 30: Accepted. Paragraph 31: Rejected as contrary to the greater weight of the evidence and as not supported by persuasive competent substantial evidence. Paragraph 32: Accepted. Paragraph 33: Rejected as not supported by competent substantial evidence. There is no evidence of injection of liquid ozone (although there may have been injection of liquids containing ozone). Paragraphs 34, 35, 36, 37, and 38: Accepted. Paragraphs 39: Rejected as based on speculation. Paragraphs 40, 41, 42, 43, 44, and 45: Accepted. Paragraph 46: Accepted in substance. Paragraph 47: Accepted Paragraph 48 and 49: Accepted in substance. Paragraph 50: Rejected as subordinate and unnecessary generalities. Paragraphs 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, and 63: Accepted. Paragraphs 64, 65, and 66: Accepted in substance. Proposed findings submitted by Respondent Paragraph 1: Rejected as constituting conclusions of law, rather than findings of fact. Paragraphs 2 and 3: Accepted. Paragraph 4: First two lines and first word of third line accepted. Remainder is rejected as conclusions of law rather than findings of fact. Paragraph 5: Rejected because there is a general lack of clear and convincing evidence as to what took place when the DEA agents inspected the Respondent's premises. Paragraph 6: First clause up to the comma is accepted; the remainder is reejected as a conclusion of law rather than a proposed finding of fact. Paragraph 7: Accepted in substance; the DEA agents did not conduct an audit. Paragraph 8: Rejected as conclusions of law, rather than proposed findings of fact. Paragraph 9: Subordinate and unnecessary details in view of other findings on related subjects. Paragraph 10: Contrary to the greater weight of the evidence. Paragraph 11 and 12: Accepted in substance. Paragraph 13: Rejected as conclusion of law and as, in any event, irrelevant to the issues in this case. Paragraph 14, 15, and 16: Rejected as contrary to the greater weight of evidence. Paragraph 17: Literally true, but irrelevant because the treatment statements contain a statement reading "Professor and Chairman, American Board of Pain and Medicine." Paragraph 18: Rejected as constituting legal arguments rather than proposed findings of fact. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Arthur B. Skafidas, Esquire Mr. Chris Hinson, Legal Intern Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Max R. Price, Esquire Mr. Joel M. Berger Dental Legal Advisors, Inc. 1550 Madruga Avenue, #230 Coral Gables, Florida 33146
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, Philip S. Bennett, Sr., is entitled to reimbursement from the State of Florida Group Health Self Insurance Plan for services rendered him by John S. Dozier, D.M.D., in connection with treatment received by the Petitioner for a "localized mucogingival defect" (abscess and infection) occurring around the first upper molar tooth on the left side of the patient's mouth.
Findings Of Fact The Petitioner is a retired state employee, who is covered for medical benefits under the State of Florida Employees' Group Health Self Insurance Plan. The Petitioner experienced an infection of the gum in the area adjacent to the upper left, first molar, also called a "localized mucogingival defect", which involves a localized, chronic infection of the soft tissue surrounding that tooth and the ligamentous attachment of the tooth. The condition was apparently caused initially by accumulation of food or infectious material beneath the gum line in that area. The Petitioner's general dentist, Dr. Doug Evans, determined that this condition should be treated by a referral of the Petitioner to a periodontal specialist, Dr. John S. Dozier. He was referred to Dr. Dozier sometime in April or May of 1993. He was seen by Dr. Dozier on June 1, 1993. Dr. Dozier diagnosed the condition as is described above. Dr. Dozier determined that there were two courses of therapy available to resolve the infection problem. The first was extraction of the tooth. The second course of therapy involved complete debridement of the infected area, involving thorough cleaning and removal of any necrotic tissue or infectious material, followed by a gingival tissue graft. Since there was a good prognosis for retention of the adjacent tooth, it was determined by the Petitioner and Dr. Dozier to perform the latter procedure, involving the gingival graft, so as to replace, by transplantation, the gum tissue adjacent to the tooth, which would have the effect of filling the void or gap in the gum tissue at the infected area so as to restore the integrity of the gum and gum line and, therefore, prevent further infection in the area. The chronic infection in the area, if left untreated, could have resulted in a bacteremia condition. The gingival graft, which was performed, was thus surgery involving soft tissue and was successfully completed. The postoperative assessment, approximately nine months after the surgery, showed that it was 100 percent successful. The Petitioner has a history of pulmonary disease or condition and a heart problem involving his heart valve. He has been under the care and treatment of Dr. Clifton J. Baily, a pulmonary specialist, for some years. Dr. Baily has, over the years, cautioned the Petitioner that he must be careful to seek prompt and proper treatment for any infection so as to avoid endangering his lungs or heart valve through the systemic effects of any infection. It was especially with this advice in mind that the Petitioner, upon learning that he had the infection in his mouth, sought and obtained the treatment described above. This condition posed significant health risks to the Petitioner, not related to his dental care and treatment. Because of his medical history, the infectious condition placed the Petitioner at risk of infecting his heart valve, the area of previous surgery to his back, and the potential for development of a destructive respiratory infection, given the Petitioner's chronic pulmonary disability and heart valve problem history. It was, therefore, Dr. Baily's reasoned medical conclusion that the grafting of the tissue, by oral surgery performed by Dr. Dozier, was medically necessary to avoid spreading the infection, which would be detrimental to the Petitioner's chronic pulmonary disability and would run the risk of infecting his heart valve, as well. It was thus established that the surgical procedure involved was medically necessary and was not truly a dental treatment or procedure. It involved the surrounding soft tissue adjacent to the tooth in question, which tissue was chronically infected. The tooth itself was not the source of the Petitioner's medical problem. Ultimate tooth loss might have been an incidental result of the deterioration and sloughing away of the infected soft tissue surrounding the tooth, but it was the infection of soft tissue, which had to be surgically repaired, that was the essential problem. The repair was shown to be medically necessary to avoid a deterioration in the Petitioner's pre-existing medical conditions described above.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Respondent, Department of Management Services, Division of State Employees' Insurance, finding the Petitioner entitled to reimbursement for the charges shown to be medically necessary for the above-described procedure and treatment. DONE AND ENTERED this 10th day of August, 1994, in Tallahassee, Florida. P. MICHAEL RUFF 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 10th day of August, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6939 Petitioner's Proposed Findings of Fact 1-18. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter, and rejected to the extent that they may differ from the Hearing Officer's findings of fact. Respondent's Proposed Findings of Fact 1-4. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. The preponderant evidence of record reflects that $507.00 was the total fee paid for the services necessitated by the treatment of the infectious condition described in the above Findings of Fact and found to be subject to reimbursement. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, and as not entirely in accord with the preponderant weight of the evidence. Accepted only in the sense that they describe the Respondent's position in this case. COPIES FURNISHED: Brant Hargrove, Esq. 1343 East Tennessee Street Tallahassee, FL 32308 Augustus D. Aikens, Jr., Esq. Benefit Programs and Legal Services Division of State Employees' Insurance 2002 Old St. Augustine Road, B-12 Tallahassee, FL 32301-4876 William H. Lindner, Secretary Department of Management Services Knight Bldg., Ste. 307 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Paul A. Rowell, Esq. General Counsel Department of Management Services Knight Bldg., Ste. 307 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950
